Hughes v. State

FINAL COPY


                 S20A1309. HUGHES v. THE STATE.

      MELTON, Chief Justice.

      Following a jury trial, Lawrence B. Hughes appeals his

convictions for the felony murder of Jamon Epps and related

offenses, contending that the evidence was insufficient, that the trial

court made certain evidentiary and charging errors, and that trial

counsel was constitutionally ineffective.1 For the reasons set forth


      1 On April 20, 2016, Hughes was indicted for felony murder predicated

on aggravated assault (Count 1), felony murder predicated on possession of a
firearm by a convicted felon (Count 2), possession of a firearm during the
commission of a felony (Counts 3, 5, 7, 9), aggravated assault (Count 4),
hijacking a motor vehicle (Count 6), armed robbery (Count 8), and possession
of a firearm by a convicted felon (Count 10), in connection with the shooting
death of Epps and the theft of Janie Geiger’s automobile. At a jury trial on
September 4 to 7, 2018, Hughes was acquitted of the Count 1 felony murder
charge and its predicate felony, aggravated assault, but he was found guilty of
the remaining counts. Thereafter, the trial court sentenced Hughes to
consecutive sentences of life in prison without parole for felony murder and
armed robbery; twenty years consecutive for hijacking a motor vehicle; and five
years consecutive for each of the unlawful firearm possessions in Counts 3, 7,
and 10. The trial court merged the remaining firearm possession counts
(Counts 5 and 9). On September 20, 2018, Hughes filed a motion for new trial,
which he later amended through new counsel. The trial court denied the
motion for new trial as amended on April 9, 2020. Hughes filed a timely notice
of appeal, and his case, submitted on the briefs, was docketed to the August
2020 term of this Court.
below, we affirm.

     1. Viewed in the light most favorable to the verdicts, the

evidence admitted at trial showed that, on June 25, 2015, Epps

drove Hughes and others in a black SUV to the parking area outside

a Chinese restaurant in Chatham County. Hughes, a convicted

felon, was sitting behind Epps, and Hughes had a firearm in his

possession. Outside the restaurant, Hughes’s group, while still

inside the SUV, exchanged gunfire with unknown individuals.

During the gunfire, Epps was shot through the back of his neck and

killed. After realizing Epps had been shot, Hughes exited the SUV

and approached Janie Geiger, who was sitting in her car across the

street. Hughes ordered Geiger to give him her vehicle while pointing

what Geiger described as a “shotgun or rifle” at her. Geiger

evacuated her vehicle, and Hughes drove it away from the scene.

     Later, outside the Chinese restaurant, police found numerous

pieces of dark tinted glass, eighteen shell casings, and leaked

gasoline. Geiger’s vehicle was later recovered on a nearby street, and

Hughes’s blood was found on the steering wheel and driver’s door.

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In addition, on the day after the shooting, law enforcement found

the black SUV that had been driven by Epps at The Ponderosa

Apartments, approximately half a mile from the restaurant. Epps’s

dead body was in the driver’s seat. The SUV was riddled with bullet

holes; the rear tinted window was shattered; and there was a trail

of gasoline behind the vehicle. Hughes’s fingerprints were

discovered on two compact discs inside the SUV, as well as on a cell

phone that was determined to belong to Hughes (as it contained

several photos taken by Hughes in which Hughes was included). The

compact discs were located in the back seat of the SUV, and

Hughes’s cell phone was located in a compartment of the passenger’s

door behind the driver’s seat. Investigators also found three firearms

— two pistols and a rifle — and a number of spent shell casings.

They later determined that the shell casings had been fired from

four different weapons, including the three found in the car. The

remaining shell casings had been fired from a different rifle that was

not recovered.

     Epps died of a single gunshot wound to the back of his neck.

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The medical examiner opined that, due to the irregular shape of the

entry wound, the bullet struck an intermediate object before hitting

Epps. This finding was consistent with the discovery of a hole caused

by a bullet passing through the back of the driver’s headrest. It was

also consistent with observations made by Officers Timothy Powell

and Jenna Rojas with regard to the origin and trajectory of the bullet

that was fired from somewhere behind Epps.2

      Evidence further showed that Hughes’s cousin, Jason

Grantham, spoke with Hughes several days after the shooting.

Hughes admitted to Grantham that he had participated in the

gunfight. Hughes explained that, before the gunfight began, Hughes

had asked Epps “how he was gonna shoot that big gun in his lap,”

after which Hughes and Epps “switched guns.” In addition, Hughes

said that, after the shootout began, he reached forward, tapped Epps




      2 In a passing argument, Hughes complains that Officer Powell was not

qualified as an expert to opine on this topic. Even if this were true, the same
evidence was introduced through Officer Rojas, and Hughes makes no
challenge to her testimony. See Akhimie v. State, 

 (3) (

) (2015) (no showing of harm where testimony in question was
cumulative of other admissible evidence).
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on the shoulder, and discovered Epps was dead. Hughes then

recounted that he exited the vehicle and “took a lady[’s] car.”

      This evidence was sufficient to enable the jury to find Hughes

guilty beyond a reasonable doubt of the crimes for which he was

convicted. See Jackson v. Virginia, 

 (

, 61

LE2d 560) (1979).3 And, though Hughes argues that some of the

evidence was “speculative,” it is the function of the jury to determine

the weight of the evidence and the credibility of witnesses at trial.

See, e.g., Cox v. State, 

 (1) (

) (2019).4

      2. Hughes contends that the trial court erred by giving an



      3 In various sections of his brief, Hughes argues that his actions could

not be considered the proximate cause of Epps’s death. He is incorrect. The
evidence presented at Hughes’s trial supported the jury’s finding that Hughes
both possessed a firearm as a convicted felon and was at least a party to the
shootout that foreseeably led to Epps’s death. See, e.g., Lebis v. State, 

 (II) (B) (

) (2017) (evidence was sufficient to find
Lebis guilty of felony murder as a party to her husband’s possession of a
firearm as a convicted felon that proximately caused the death of a police
officer).
       4 In his argument, Hughes conflates the standards for reviewing the

constitutional sufficiency of the evidence and for reviewing the weight of the
evidence for purposes of granting him a new trial. This Court does not review
the weight of the evidence, as that consideration lies solely within the province
of the jury at trial and, thereafter, the trial court in applying OCGA §§ 5-5-20
and 5-5-21.

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incomplete charge on felony murder and proximate cause; failing to

re-charge the jury on proximate cause in response to questions from

the jury after deliberations began; and failing to charge the jury on

the defense of justification.5 We disagree.

      (a) With regard to the jury charges relating to felony murder

and proximate cause, Hughes made no objections. Therefore, the

claim that these charges were incomplete is subject to plain error

review on appeal. See Guajardo v. State, 

 (4) (

) (2011). The test for plain error is comprised of four

prongs:

      First, there must be an error or defect — some sort of
      deviation from a legal rule — that has not been
      intentionally    relinquished    or    abandoned,     i.e.,
      affirmatively waived, by the appellant. Second, the legal
      error must be clear or obvious, rather than subject to
      reasonable dispute. Third, the error must have affected
      the appellant’s substantial rights, which in the ordinary
      case means he must demonstrate that it affected the


      5 Hughes    disjointedly includes within this enumeration an unrelated
argument that, on the count of felony murder for which he was convicted, there
was a fatal variance between the indictment and the evidence produced at
trial. Hughes did not raise this issue in the trial court; therefore, it has been
waived for purposes of appellate review. See Eberhart v. State, 

 (2) (a) n.7 (

) (2019) (failure to raise a fatal variance issue in
the trial court waives the issue for appeal).
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     outcome of the trial court proceedings. Fourth and finally,
     if the above three prongs are satisfied, the appellate court
     has the discretion to remedy the error — discretion which
     ought to be exercised only if the error seriously affects the
     fairness, integrity, or public reputation of judicial
     proceedings.

(Citation, punctuation and emphasis omitted.) State v. Kelly, 

 (2) (a) (

) (2011). Here, there was no clear or

obvious error. The charges given by the trial court tracked the

pattern jury instruction on felony murder and proximate cause, see

Ga. Suggested Pattern Jury Instructions, Vol. II: Criminal Cases §

2.10.30 (2020),6 and Hughes has not shown that the charges were




     6 The trial court instructed the jury:

     In order for a homicide . . . to be done in the commission of one of
     these particular felonies, there must be some connection between
     the felony and the homicide. The homicide . . . must have been done
     in carrying out the unlawful act and not collateral to it. It’s not
     enough that the homicide occurred soon or presently after the
     felony was attempted or committed. There must be such a legal
     relationship between the homicide and felony so as to cause you to
     find that the homicide occurred before the felony was at an end or
     before the attempt to avoid conviction or arrest for the felony. The
     felony must have a legal relationship to the homicide, be at least
     concurrent with it in part, and be part of it in an actual and
     material sense. The homicide is committed in the carrying out of a
     felony, when it is committed by the accused while engaged in the
     performance of any act required for the full execution of the felony.

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either incorrect or incomplete. Furthermore, Hughes has failed to

demonstrate that any purported error affected his substantial

rights. Rather than attempting to make such a demonstration,

Hughes again makes arguments relating to the sufficiency of the

evidence against him. For example, Hughes claims that he acted in

self-defense or that someone else was responsible for Epps’s death.7

As set forth in Division 1, however, the evidence was not only

constitutionally sufficient to support Hughes’s convictions, it was

strong. Therefore, Hughes has not established plain error in

connection with the trial court’s charges on felony murder and

proximate cause.

      (b) With regard to Hughes’s claim that the trial court failed to

re-charge the jury on the issue of proximate cause after deliberations

were underway, Hughes waived any error, even if error existed. The

record shows that, after deliberations began, the jury sent out a note

asking the following questions: “Count one and count two stated the



      7 As explained in Division 2 (c), infra, Hughes was not entitled to a charge

on self-defense under the facts of this case.
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felonies listed caused the death of [the victim] by shooting him. Does

this mean that defendant simply shot [the victim]? The wording is

unclear. In layman’s terms what are the differences between count

one and count two?” The trial court determined that the appropriate

way to deal with these questions was to re-read the applicable

counts of the indictment (which had also been sent out with the

jury). Hughes did not object to the trial court’s decisions; instead, he

agreed that re-reading the indictment was the appropriate means to

answer the jury’s questions. By agreeing with the trial court,

Hughes affirmatively waived his right to challenge the trial court’s

action. See, e.g., Faust v. State, 

 (3) (

)

(2017) (invited error waived any contention of plain error for

review); Hicks v. State, 

 (2) (

) (2014)

(concluding that, because appellant expressly told the trial court

that it should not answer the jury’s question during deliberation,

appellant invited the alleged error, and there was no plain error).

See also United States v. Fulford, 

 (II) (C) (3)

(11th Cir. 2001) (holding that a defendant’s explicit agreement with

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a proposed jury instruction constituted invited error).

     (c) Hughes argues that the trial court erred by denying his

request for a charge on self-defense, a contention preserved for

ordinary appellate review by a timely objection. Hughes maintains

that he was entitled to this charge because there was some evidence

that he fired his weapon in self-defense, after others outside the SUV

began firing at him first. Hughes, however, was a convicted felon

when the shooting occurred; thus, he was committing a felony by

possessing a firearm even before the shootout began,8 which

precluded him from claiming that he acted in self-defense. See

OCGA § 16-3-21 (b) (2); Woodard v. State, 

 (3) (

) (2015). As Hughes was not entitled to claim self-defense,

the trial court did not err by denying his request for such an

instruction.

     3. Finally, Hughes contends that his trial counsel rendered

constitutionally ineffective assistance in a number of ways.


     8 Hughes’s statement to Grantham indicates that he was in possession

of a firearm prior to the gunfight, and there was no evidence presented that
Hughes could have grabbed a gun only after the shooting started.
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     To prevail on a claim of ineffective assistance of counsel,
     [Hughes] must prove both deficient performance and
     resulting prejudice. See Strickland v. Washington, 

 (

, 80 LE2d 674) (1984). To
     establish deficient performance, [Hughes] must show that
     his trial counsel performed in an objectively unreasonable
     way, considering all the circumstances and in the light of
     prevailing professional norms. See 

. To
     establish prejudice, [Hughes] must show that there is “a
     reasonable probability that, but for counsel’s
     unprofessional errors, the result of the proceeding would
     have been different.” 

. We need not address both
     components of this test if [Hughes] has not proved one of
     them. See Walker v. State, 

 (

) (2017).

Watson v. State, 

 (2) (d) (

) (2018).

     With extremely limited arguments, Hughes contends that trial

counsel performed deficiently by failing to object to a laundry list of

items of evidence, including shell casings recovered from the crime

scenes, broken car-window glass, autopsy photos, photos of Epps’s

blood, and the audiotape of Geiger’s 911 call, on the grounds that

these items were “irrelevant and prejudicial.” Hughes is incorrect on

all counts.

     OCGA § 24-4-401 defines “relevant evidence” as “evidence

having any tendency to make the existence of any fact that is of

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consequence to the determination of the action more probable or less

probable than it would be without the evidence.” However, relevant

evidence may be excluded under OCGA § 24-4-403 “if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury or by considerations

of undue delay, waste of time, or needless presentation of cumulative

evidence.”

     Here, the shell casings, car-window glass, 911 call, and photos

of Epps’s blood were all relevant in demonstrating the circumstances

of the shooting — specifically, the existence, nature, and location of

the gunfight that led to Epps’s death. Hughes contends that the

evidence has no nexus to him; however, there was ample evidence

that Hughes participated in the gunfight that forms the basis for his

convictions. The evidence listed by Hughes was relevant to the

nature and circumstances of the gunfight, and Hughes has not made

any showing that he was unfairly prejudiced by the admission of this

evidence, especially in light of Hughes’s admission that he was

involved.

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     Moreover, with regard to the autopsy photos, “photographic

evidence that fairly and accurately depicts a body or crime scene and

is offered for a relevant purpose is not generally inadmissible under

OCGA § 24-4-403 merely because it is gruesome.” (Citation and

punctuation omitted.) Calhoun v. State, 

 (2) (c) (i)

(

) (2020). Here,

     [t]he challenged photographs do not depict the victim’s
     autopsy incisions, and they are not especially gory or
     gruesome in the context of autopsy photographs in a
     murder case; furthermore, they were relevant to show the
     nature and location of the victim’s injuries, which
     corroborated the State’s evidence of the circumstances of
     the killing.

Pike v. State, 

 (3) (

) (2018).

     With regard to the 911 call made by Geiger, Hughes makes an

additional argument that trial counsel should have objected to this

evidence because the call was not properly authenticated. This

argument is meritless. Here, the State introduced the 911 tape

through a detective who testified that he had listened to the 911 call

made by Geiger beforehand, and that he recognized Geiger’s voice

because he had previously interviewed her. This was sufficient

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authentication. See OCGA § 24-9-901 (b) (5) (authentication may be

done by “[i]dentification of a voice, whether heard firsthand or

through mechanical or electronic transmission or recording, by

opinion based upon hearing the voice at any time under

circumstances connecting it with the alleged speaker”).

     For all of the reasons set forth above, Hughes has failed to show

that his trial counsel was constitutionally ineffective.

     Judgment affirmed. All the Justices concur, except Warren, J.,
not participating.



                    Decided November 16, 2020.

     Murder. Chatham Superior Court. Before Judge Bass.
     Kimberly L. Copeland, for appellant.
     Meg E. Heap, District Attorney, Bradley R. Thompson,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Matthew D. O’Brien,
Assistant Attorney General, for appellee.




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