310 Ga. 254
FINAL COPY
S20A1399. SHARPE v. THE STATE.
MCMILLIAN, Justice.
In July 2017, an Emanuel County jury found David Lee Sharpe
guilty of felony murder and other related crimes in connection with
the shooting death of Devonte Coney.1 Sharpe now asserts that he
received constitutionally ineffective assistance of counsel because
his trial counsel failed to object to the testimony of a GBI special
agent and failed to poll the jury. For the reasons that follow, we
1 Coney was shot and killed on October 2, 2016. On December 14, 2016,
an Emanuel County grand jury indicted Sharpe for malice murder (Count 1),
three counts of possession of a firearm during the commission of a felony
(Counts 2, 4, and 6), felony murder (Count 3), aggravated assault (Count 5),
criminal damage to property in the first degree (Count 7), theft by receiving
stolen property (Count 8), and possession of a firearm by a convicted felon
(Count 9). The trial court granted the State’s motion to dismiss Counts 2, 4, 5,
6, and 7. Sharpe was tried from July 10 to 13, 2017, and a jury acquitted Sharpe
of malice murder but found him guilty on the remaining counts. The trial court
sentenced Sharpe to imprisonment for life for felony murder, a concurrent term
of ten years in prison for theft by receiving, and a consecutive term of five years
in prison for possession of a firearm by a convicted felon. Sharpe filed his initial
motion for new trial on July 21, 2017, which he amended in October 2019
through new counsel. Following hearings in October and December 2019, the
trial court denied the motion for new trial as amended on April 9, 2020. Sharpe
timely appealed, and the case was docketed to the August 2020 term of this
Court and thereafter submitted for a decision on the briefs.
reverse Sharpe’s conviction for theft by receiving stolen property but
otherwise affirm.
Viewed in the light most favorable to the jury’s verdict, the
evidence presented at trial showed that during the early morning
hours of October 2, 2016, Coney and two friends went to Flat’s
Lounge, a club in Swainsboro, where they sat at a table near the
dance floor. Sharpe, who was also at the club during that time, got
into a verbal confrontation with other patrons. Ashley Middleton, a
friend of Sharpe’s, intervened in an attempt to get Sharpe to calm
down. After she walked away, she saw that Sharpe was again
arguing with the same people, so she went back and told him to “just
chill out.” When the argument started a third time, Middleton led
Sharpe outside. The people he was arguing with, however, followed
them to the parking lot. When the confrontation turned into a
fistfight, a club security guard attempted to disperse the crowd with
pepper spray. However, the fight quickly escalated into a gunfight
that lasted approximately 30 seconds. While Coney and his friends
were still inside the club, multiple gunshots came into the building
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from the direction of the parking lot. As they attempted to flee from
the club, one of the gunshots fatally struck Coney in the head.
Shortly after the shooting, officers responded to a 911 call at a
nearby Huddle House restaurant after a customer reported that a
person involved in the shooting at Flat’s Lounge was currently in
the restaurant. That customer testified at trial that he felt
compelled to contact police when he heard Sharpe, whom he knew
from having previously lived in the same neighborhood, smiling and
bragging about the shooting. When officers arrived at the
restaurant, Sharpe rushed to the women’s restroom, where he
attempted to dispose of a Glock .40-caliber pistol and an extended
30-round magazine, both of which officers recovered from the
restroom’s trash can. Fifteen rounds remained in the magazine. At
that time, Sharpe was arrested, and officers later determined that
the firearm had been reported stolen in December 2015 after its
owner found it missing from the cab of his truck parked in front of
his Emanuel County residence. Swabs taken from Sharpe’s right
hand and from clothing he was wearing at the time he was arrested
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tested positive for particles characteristic of gunshot residue.
In a recorded statement given to a GBI special agent after the
Emanuel County Sheriff’s Office asked the GBI to assist in the
investigation, Middleton noted that Sharpe owned a black gun and
identified Sharpe as one of the shooters. Relevant portions of her
statement were played for the jury at trial. Officers recovered 51
shell casings, rounds, and projectiles of various calibers, including
.40-caliber, from the club’s parking lot.2 The State called GBI Special
Agent Joshua Alford, who utilized surveillance video from the club’s
four cameras, to testify in detail about the movements of an
individual wearing clothing matching that worn by Sharpe at the
time he was arrested (a white tank top that became torn at some
point and camouflage overalls that were “capri” length). Specifically,
Agent Alford pointed out the individual as he moved throughout the
crowded building and into the parking lot, where he was involved in
two physical altercations — one of which he appeared to instigate —
2 Officers also located a projectile near Coney’s body inside the club. A
GBI firearms expert determined that projectile was not fired by the firearm
recovered from Sharpe.
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before he ran to a vehicle and then fired 14 to 15 shots in the
direction of the club with what appeared to be a handgun based on
the muzzle blasts.
After the jury found Sharpe guilty of felony murder and theft
by receiving stolen property, the State introduced evidence of
Sharpe’s prior felony convictions for criminal attempt to commit
armed robbery, possession of tools for the commission of a crime, and
making a false statement, and the jury then found Sharpe guilty of
possession of a firearm by a convicted felon.
1. Sharpe does not dispute the legal sufficiency of the evidence
supporting his convictions. Nevertheless, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdict, the evidence presented at trial and summarized above
was sufficient to authorize a rational jury to find Sharpe guilty
beyond a reasonable doubt of felony murder and possession of a
firearm by a convicted felon. See Jackson v. Virginia, 443 U.S. 307,
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319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).3
However, we conclude that the evidence was legally
insufficient to sustain Sharpe’s conviction for theft by receiving
stolen property. Although the State produced evidence that the gun
had been stolen approximately ten months prior to the shooting and
that Sharpe was in possession of it shortly after the shooting, the
State offered no other evidence relevant to this count. Specifically,
there is no evidence from which the jury could infer that Sharpe
knew or should have known that the gun was stolen. See OCGA §
16-8-7 (a) (“A person commits the offense of theft by receiving stolen
property when he receives, disposes of, or retains stolen property
which he knows or should know was stolen unless the property is
received, disposed of, or retained with intent to restore it to the
owner. . . .”). Accordingly, we reverse Sharpe’s conviction for theft by
receiving stolen property. See Daughtie v. State, 297 Ga. 261, 262 (2)
3 We remind litigants that this Court will end its practice of considering
the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that begins in December 2020. See Davenport v.
State, 309 Ga. 385, 392 (4) (
846 SE2d 83) (2020). This Court began assigning
cases to the December term on August 3, 2020.
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(773 SE2d 263) (2015) (because evidence shed no light on
defendant’s knowledge of the handgun’s provenance, evidence was
insufficient to enable a rational jury to find him guilty beyond a
reasonable doubt of theft by receiving stolen property).
2. Sharpe asserts that he was denied the effective assistance of
counsel. We disagree.
To prevail on this claim, Sharpe must show that his trial
counsel’s performance was professionally deficient and that, but for
such deficient performance, there is a reasonable probability that
the result of the trial would have been different. See Strickland v.
Washington, 466 U.S. 668, 695 (III) (B) (
104 SCt 2052, 80 LE2d 674)
(1984). To prove deficient performance, Sharpe must show that his
counsel performed in an “objectively unreasonable way considering
all the circumstances and in light of prevailing professional norms.”
Lofton v. State,
309 Ga. 349, 360 (6) (
846 SE2d 57) (2020). And in
evaluating the reasonableness of trial strategy, every effort should
be made “to eliminate the distorting effects of hindsight.” Davis v.
State,
306 Ga. 140, 143-44 (3) (
829 SE2d 321) (2019) (citation and
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punctuation omitted). If Sharpe fails to show either prong of the
Strickland test, we need not examine the other. See DeLoach v.
State, 308 Ga. 283, 288 (2) (
840 SE2d 396) (2020).
(a) Sharpe first argues that his trial counsel was
constitutionally ineffective for failing to object to the testimony of
Agent Alford because he should have been qualified as an expert
witness before testifying about the content of the surveillance videos
and because he should not have been permitted to testify about the
identity of the person in the videos. We are unpersuaded.
The record shows that prior to trial, Agent Alford was asked to
assist in the review of the surveillance videos. To familiarize himself
with the case, he flew above the crime scene in a helicopter, walked
the property in and around Flat’s Lounge, reviewed photographs of
the clothing Sharpe was wearing the night of the shooting, and
studied the surveillance footage from four different cameras located
in and around the club, focusing on an individual wearing the
clothing Sharpe was wearing that night. At the motion for new trial
hearing, trial counsel testified that she did not consider Agent
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Alford’s testimony to be “opinion testimony” because it was simply
an explanation of the video recovered from the four surveillance
cameras. Therefore, she did not object on the ground that he had not
been tendered as an expert witness. She also explained that she did
not object to Agent Alford’s testimony because his testimony was
consistent with her trial theory that another person seen on the
video in the parking lot actually pulled a gun first and that Sharpe
was therefore acting in self-defense. And his testimony allowed her
to make the points she needed on cross-examination without having
to put her own investigator on the stand and subjecting him to cross-
examination. Trial counsel’s decision not to object to Agent Alford’s
evidence and instead to use it to support Sharpe’s claim of self-
defense was a matter of trial strategy, and such tactical decisions
about cross-examination do not constitute ineffective assistance
unless they are so patently unreasonable that no competent
attorney would have chosen that approach. See Koonce v. State, 305
Ga. 671, 673-74 (2) (b) (
827 SE2d 633) (2019) (decision to refrain
from objecting to testimony in favor of showing inconsistencies in
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the evidence is a matter of trial strategy and will not support an
ineffectiveness claim if reasonable); State v. Goff, 308 Ga. 330, 334
(1) (
840 SE2d 359) (2020) (“Strategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable” and “will not form the basis for an
ineffective assistance of counsel claim unless [they were] so patently
unreasonable that no competent attorney would have chosen
[them].” (citation and punctuation omitted)). We cannot say that
trial counsel’s decision under these circumstances was patently
unreasonable. “Given counsel’s founded, reasonable belief that
[Sharpe] was best served by using this evidence to his advantage
instead of objecting to it, counsel’s decision amounted to reasonable
trial strategy that does not constitute deficient performance.”
Griffin v. State,
309 Ga. ___, ___ (3) (
849 SE2d 191) (2020).
(b) Sharpe also asserts that his trial counsel was ineffective for
failing to request a poll of the jury because a poll would have
revealed that Juror No. 15 rendered her verdict under duress.
Again, we disagree.
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The record shows that during the sentencing hearing,
conducted immediately after the trial court released the jury,
defense counsel informed the court that one of the jurors told a
member of her office that the verdict “was not [her] decision, and so
one of the guys . . . cussed at her.” The court announced that there
was nothing it was able to do at that point. Sharpe raised the issue
again in his motion for new trial, and at the second hearing on the
motion, Juror No. 15 testified that during deliberations one of the
jurors “cursed [her] out,” and she became “real angry.” The juror
“cussed” at her again, so “[she] just refused and . . . gave up.”4
4 Juror No. 15 and several other jurors also testified about the
interactions between the jurors during deliberations and how they may have
affected their mental processes. However, we decline to consider this evidence
under OCGA § 24-6-606 (b), which provides:
[A] juror shall not testify by affidavit or otherwise, nor shall a
juror’s statements be received in evidence as to any matter or
statement occurring during the course of the jury’s deliberations
or to the effect of anything upon the jury deliberations or any other
juror’s mind or emotions as influencing the jury to assent to or
dissent from the verdict . . . or concerning the juror’s mental
processes in connection therewith . . . .
See also Beck v. State, 305 Ga. 383, 386 (2) (
825 SE2d 184) (2019) (explaining
that OCGA § 24-6-606 (b) “embodies a ‘nearly categorical bar on juror
testimony,’ with only three specific exceptions providing the subject matter on
which a juror is allowed to testify” (citation omitted)). The juror testimony here
does not fall within any of these narrow exceptions.
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We have consistently rejected ineffective assistance of counsel
claims based on the failure to poll the jury. See, e.g., Johnson v.
State, 293 Ga. 641, 647 (11) (c) (
748 SE2d 896) (2013); Marshall v.
State,
285 Ga. 351, 353 (4) (c) (
676 SE2d 201) (2009). The purpose of
polling the jury “is to [e]nsure that each member of the jury assents
to the verdict, and for the court to discern possible coercion.”
Cartwright v. State,
291 Ga. 498, 501 (2) (c) (
731 SE2d 353) (2012)
(citation and punctuation omitted). “Where a poll of the jury
discloses other than a unanimous verdict, the proper procedure is
for the trial court to return the jury to the jury room for further
deliberations in an effort to arrive at a unanimous verdict.”
Benefield v. State,
278 Ga. 464, 465 (
602 SE2d 631) (2004).
Here, Sharpe points to no authority requiring counsel to seek
to poll the jury, and there is no evidence that counsel had reason to
suspect, at the point the verdict was returned, that it was coerced.
Under these circumstances, we cannot say that counsel performed
deficiently. See Chavez v. State, 307 Ga. 804, 809 (2) (
837 SE2d 766)
(2020); Johnson,
293 Ga. at 647 (11) (c); Marshall,
285 Ga. at 353 (4)
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(c). Accordingly, Sharpe has failed to carry his burden to prove that
he was denied constitutionally effective assistance of counsel.
Judgment affirmed in part and reversed in part. All the
Justices concur, except Warren, J., not participating.
Decided October 19, 2020.
Murder. Emanuel Superior Court. Before Judge Palmer.
T. Mack Taylor, for appellant.
S. Hayward Altman, District Attorney, John A. Fitzner III,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Michael A. Oldham,
Assistant Attorney General, for appellee.
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