Lanier v. State

FINAL COPY

                  S20A1192. LANIER v. THE STATE.


      BETHEL, Justice.

      Antonio Lanier appeals his convictions for malice murder and

other offenses in connection with the shooting deaths of Auda and

Gerald Anne Love.1 Lanier contends that the evidence was

insufficient to support his convictions because it was based on his




      1 The crimes occurred on October 11, 2012. On May 20, 2014, a Wayne

County grand jury indicted Lanier and Heather Tipton on two counts of malice
murder (Counts 1 and 2), one count of theft by taking Mr. Love’s firearms
(Count 3), one count of armed robbery for taking firearms, a wallet, and a purse
belonging to the Loves (Count 4), and one count of possession of a firearm
during the commission of a felony (Count 5). Lanier and Tipton were also
charged with one count of tampering with the evidence (Count 6), along with
Lintay Beard. Lanier was tried by a jury in February 2015 and was found
guilty on all counts. Tipton pled guilty to two counts of murder, and Beard pled
guilty to tampering with the evidence. Their cases are not part of this appeal.
The trial court sentenced Lanier to two concurrent sentences of life in prison
without the possibility of parole for the malice murder convictions, a
consecutive term of life in prison for armed robbery, ten years consecutive for
theft by taking, five years consecutive for firearm possession, and twelve
months concurrent for tampering with evidence.
      On March 6, 2015, Lanier filed motion for a new trial, which he
subsequently amended on April 2, 2019. The trial court denied the motion for
new trial on February 21, 2020. Appellate counsel filed a timely notice of
appeal on February 28, 2020. This case was docketed in this Court to the
August 2020 term and submitted for a decision on the briefs.
co-defendants’   uncorroborated       testimony,   that   he   received

ineffective assistance of counsel at trial, and that the trial court

erred by admitting crime scene and autopsy photographs and by

improperly excusing certain potential jurors. For the reasons set

forth below, we affirm.

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

evidence presented at trial showed the following. Approximately one

week before the shootings, Lanier and his girlfriend, Heather

Tipton, discussed killing Tipton’s mother, Gerald Ann Love, and

stepfather, Auda Love, and stealing their money and guns. At the

time of this discussion, Lanier’s close friend and roommate, Lintay

Beard, was present.

     Around 7:00 a.m. on October 11, 2012, the day of the shootings,

Tipton drove to Lanier’s residence. While there, Lanier and Tipton

attempted to recruit Beard to assist with their plan, but Beard

refused. Beard then observed Lanier and Tipton leave the residence

in Tipton’s sister’s yellow Volkswagen Beetle. Lanier and Tipton

then drove to the Loves’ house and stayed there for several hours

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while the Loves were at work. Tipton then went to pick up Mrs. Love

from work. When Tipton and Mrs. Love returned, Mrs. Love walked

into her bedroom to change clothes while Tipton remained in

another part of the house. Tipton then heard two gunshots. When

she looked into Mrs. Love’s room, she saw Lanier holding Mr. Love’s

pistol. Lanier pointed the pistol at Tipton, and then turned and

continued shooting Mrs. Love in the master bathroom.

     Sometime later that same day, Mr. Love returned home from

work. He walked through the master bedroom into the master

bathroom, where he saw Mrs. Love’s body. Lanier, armed with Mr.

Love’s shotgun, followed Mr. Love into the bathroom and shot him.

Lanier then retrieved a different gun and continued shooting Mr.

Love.

     To create the appearance that the Loves had been robbed,

Lanier knocked over items in the bedroom. Lanier and Tipton also

stole Mr. Love’s wallet, Mrs. Love’s checkbook and purse, and five of

the Loves’ guns. They then left the house in Mrs. Love’s vehicle and

drove to Lanier’s home where they picked up Beard. The three went

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to the bank together, and Tipton cashed a forged $300 check from

Mrs. Love’s checkbook. Afterward, the three checked into a hotel.

     Later that day, Lanier and Beard drove to the home of their

friend, Joey Perez, and asked him to store the guns they had stolen.

Perez agreed. The next day, Lanier, Tipton, and Beard drove to a

lake, where Lanier instructed Beard to throw Mrs. Love’s purse into

the water. At some point, Lanier also told Beard that he had shot

the Loves.

     When Mr. Love did not appear for work on October 12, his

supervisor called his cell phone multiple times but received no

answer. The supervisor drove to Mr. Love’s home and found the front

door open and the home in disarray. He then called 911.

     Law enforcement officers found the Loves’ deceased bodies on

their bathroom floor and the yellow Volkswagen in the driveway.

Police also found a number of spent shell casings from several

different types of guns inside the home, including a .22-caliber, a

.380, and a .40-caliber, as well as from a 12-gauge shotgun. Autopsy

results revealed that Mr. Love sustained 31 injuries, including

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shotgun wounds to his face and shoulder and a number of other

gunshot wounds to his arm, back, abdomen, chest, thigh, and

buttocks. Mrs. Love sustained 15 injuries, including gunshot

wounds to her chest, abdomen, and legs.

     Tipton eventually confessed to her involvement in the

shootings and reported Lanier’s and Beard’s involvement to law

enforcement officers. Beard later showed officers where he had

disposed of the purse, and it was recovered along with Mr. Love’s

wallet, Mrs. Love’s checkbook, and shell casings. Additionally,

officers recovered four firearms from Perez’s home and determined

that three of them had fired shells consistent with some of those

found at the Loves’ home. Investigators also found Mr. Love’s blood

on Lanier’s pants, and a store surveillance video shows that Lanier

was wearing those pants on the day of the shooting. Investigators

also recovered several of the Loves’ credit cards from Lanier and

Beard’s bedroom.

     2. Lanier first argues that the evidence presented at trial was

insufficient to support his convictions because it was based on the

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uncorroborated testimony of his co-defendants, Tipton and Beard.

We conclude that Lanier was not convicted solely on the basis of the

testimony of a single accomplice and that the evidence was legally

sufficient.

     (a) Under Georgia law, in felony cases where the only witness

is an accomplice to the crimes, that witness’s testimony alone is

insufficient to support a defendant’s convictions. See OCGA § 24-14-

8. When “evidence presented at trial could support a finding that a

witness acted as an accomplice, it is for the jury to determine

whether the witness acted in such a capacity.” Doyle v. State, 

 (2) (a) (

) (2020). In this case, the jury

heard evidence that authorized it to determine that both Tipton and

Beard acted as accomplices with respect to one or more of the crimes

the jury found Lanier to have committed.

     Even if we assume that the jury determined that both Tipton

and Beard were accomplices, there was legally adequate evidence to

corroborate their respective testimony.

     Although OCGA § 24-14-8 provides that corroboration is

                                 6
     required to support a guilty verdict in felony cases where
     the only witness is an accomplice, only slight evidence of
     corroboration is required. The necessary corroboration
     may consist entirely of circumstantial evidence. . . . The
     evidence need not be sufficient in and of itself to warrant
     a conviction, so long as it is independent of the
     accomplice’s testimony and directly connects the
     defendant to the crime or leads to the inference of guilt.
     The sufficiency of the corroboration is a matter for the
     jury to decide.

(Citation and punctuation omitted.) Raines v. State, 

 (2) (a) (

) (2018). Further, “it is well established

that where, as here, more than one accomplice testifies at trial, the

testimony of one accomplice may be corroborated by the testimony

of the other[ ].” (Citation and punctuation omitted.) Ramirez v. State,

 (

) (2014).

     Here, Tipton and Beard substantially corroborated each other’s

testimony about the crimes. Tipton testified that she and Lanier

planned to rob and kill the Loves, that she observed Lanier shoot

the victims, and that she and Lanier stole their belongings. Beard

testified that he was present when Lanier and Tipton initially

discussed robbing and killing the Loves, that they attempted to


                                  7
recruit him on the day of the shootings, that Lanier subsequently

confessed to shooting the Loves, and that Beard assisted Lanier in

getting rid of the stolen guns and Mrs. Love’s purse.

     Other evidence corroborated both Beard’s and Tipton’s

testimony. Perez confirmed that Lanier and Beard had asked him to

store the guns that were found at his home — three of which were

determined to have fired the shell casings found at the Loves’ home.

In addition, investigators found Mr. Love’s blood on Lanier’s pants

and recovered the Loves’ credit cards from his and Beard’s room. In

all, the testimony of Tipton and Beard was adequately corroborated

and thus satisfies the requirements of OCGA § 24-14-8.            See

Ramirez, 

.

     (b) To the extent that Lanier argues that the evidence against

him was insufficient as a matter of due process, we have also

reviewed the record and determined that the evidence, as

summarized above, was sufficient to enable a rational trier of fact to

find Lanier guilty beyond a reasonable doubt of the crimes of which

he was convicted. See Jackson v. Virginia, 

 (

       8
2781, 61 LE2d 560) (1979). See also Brown v. State, 

(1) (b) (

) (2017) (“It was for the jury to determine the

credibility of the witnesses and to resolve any conflicts or

inconsistencies in the evidence.” (citation and punctuation omitted)).

     3. Lanier next argues that his trial counsel provided

constitutionally ineffective assistance by failing to pursue a

multiple-shooter defense theory and a theory that Tipton and her

sister stood to benefit financially from the Loves’ death. He also

argues that his trial counsel provided ineffective assistance by

failing to adequately investigate the case, failing to ask certain

questions of witnesses at trial, and failing to request funds for an

investigator and an expert witness.

     To prevail on a claim of ineffective assistance of counsel, a

defendant must show that counsel’s performance was deficient and

that the deficient performance resulted in prejudice to the

defendant. See Strickland v. Washington, 

(

, 80 LE2d 674) (1984); Wesley v. State, 

 (3) (

) (2010). To satisfy the deficiency prong, a

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defendant must demonstrate that his attorney “performed at trial in

an objectively unreasonable way considering all the circumstances

and in light of prevailing professional norms.” Romer v. State, 

 (3) (

) (2013); see also Strickland, 

. This requires a defendant to overcome the “strong

presumption” that trial counsel’s performance was adequate.

(Punctuation omitted.) Marshall v. State, 

 (2) (

) (2015). To satisfy the prejudice prong, a defendant must

establish a reasonable probability that, in the absence of counsel’s

deficient performance, the result of the trial would have been

different. See Strickland, 

. “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.”

 “If an appellant fails to meet his or her burden of proving either

prong of the Strickland test, the reviewing court does not have to

examine the other prong.” Lawrence v. State, 

(2) (

) (2010).

     (a) Lanier first argues that his trial counsel performed

deficiently by failing to present alternative theories of the crimes,

                                 10
including that multiple shooters were involved (despite Tipton’s

testimony to the contrary) and that Tipton would have benefitted

financially from the Loves’ death because she was the beneficiary of

a life insurance policy held by the Loves and because Tipton’s sister

stood to inherit assets from the Loves’ estate. We disagree that trial

counsel performed deficiently by failing to present these theories to

the jury.

      At trial, Lanier’s counsel presented the theory that Lanier had

simply not been involved in the shootings of the Loves. Trial counsel

testified at the hearing on the motion for new trial that he arrived

at this defense theory after consulting with Lanier and based on

Lanier’s representations that he was not present at the time of the

shooting. Trial counsel further testified that he did not present any

alternative theories of defense at trial because he “didn’t see any”

other theories of how the shootings occurred based on the available

evidence.

     With respect to the Loves’ life insurance policy, trial counsel

testified that he reviewed it but did not believe that Tipton stood to

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benefit because Tipton’s son was actually the beneficiary, and the

money was expected to go into a trust with a court-ordered guardian.

Further, by the time Tipton took the stand at Lanier’s trial, she had

already pled guilty to killing the Loves, so her involvement was not

in contention. As for Tipton’s sister, trial counsel did not believe the

Loves’ estate was large enough to be a motive for claiming her

involvement in the murder.

     The decision as to which defense theory to pursue and which

theories to reject is within the province of trial counsel, and such

decisions only support a claim of ineffective assistance when they

are objectively unreasonable. See Floyd v. State, 

(4) (b) (

) (2020). Here, based on our review of the

record, including the testimony of trial counsel at the hearing on the

motion for new trial, we conclude, like the trial court, that trial

counsel did not perform deficiently by failing to advance the defense

theories Lanier argues on appeal. “The fact that appellate counsel

would have pursued the defense in different ways . . . does not render

trial counsel ineffective.” Smith v. State, 

 (2) (b) (657

                                   

) (2008). Accordingly, this claim of ineffective assistance

fails.

         (b) Lanier further argues that trial counsel failed to properly

investigate the case, failed to ask certain questions of witnesses at

trial, and failed to ask for funds for an investigator and an expert

witness. More specifically, Lanier argues that trial counsel should

have looked into: whether any tests were done by law enforcement

to see if Tipton or Beard had fired a weapon; who would have

benefitted financially from the Loves’ death (and should have asked

questions of witnesses on this issue); and whether other witnesses

(such as those present at the Perez residence or the Loves’ neighbor)

could contradict the State’s timeline of events. Lanier also argues

that trial counsel should have questioned the bank teller about

Tipton’s demeanor when she cashed the check on the day of the

murders. Finally, Lanier argues that trial counsel should have

requested funds to hire an investigator and an expert witness to

counter the State’s firearm expert.

         In support of these claims, however, Tipton has failed to carry

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his burden of establishing through “competent evidence” that trial

counsel performed deficiently. (Citation and punctuation omitted.)

Henry v. State, 

 (2) (b) (

) (2019). “In

the absence of evidence to the contrary, counsel’s decisions are

presumed to be strategic and thus insufficient to support an

ineffective assistance of counsel claim.” (Citation and punctuation

omitted.) Mitchell v. State, 

 (4) (a) (

)

(2012). The decision about what witnesses to call and what questions

to ask them is generally the result of reasonable trial strategy. See

Mathis v. State, 

 (2) (b) (

) (2020) (“[A]s

a general matter, decisions regarding who will be called as a defense

witness are a matter of trial strategy and tactics, and these

decisions, even if erroneous, do not constitute ineffective assistance

of counsel unless they are so unreasonable that no competent

attorney would have made them under the circumstances.” (citation

and punctuation omitted)); Sullivan v. State, 

 (2) (b)

(

) (2020) (“[T]he decision whether to present an expert

witness, like other decisions about which defense witnesses to call,

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is a matter of trial strategy that, if reasonable, will not sustain a

claim of ineffective assistance.” (citation and punctuation omitted));

Davis v. State, 

 (3) (e) (

) (2019)

(“Decisions about what particular questions to ask on cross-

examination are quintessential trial strategy and will rarely

constitute   ineffective   assistance   of    counsel.”   (citation   and

punctuation omitted)). Moreover, Lanier has failed to point to

evidence tending “to show what further investigation would have

revealed or to offer any additional witnesses to demonstrate that

their testimony would have been relevant and favorable.”

Fairclough v. State, 

 (4) (

) (2003).

Because Lanier has failed to make a showing that counsel’s

decisions were not the product of reasonable trial strategy, he has

“failed to show deficient performance.” (Citation and punctuation

omitted.) Mitchell, 

 (4) (a).

     (c) Lanier also argues that a witness who was not called at trial

— a truck driver who allegedly drove past the Loves’ residence —

could have countered the State’s timeline as to when the crimes were

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committed. However, that alleged witness did not testify at the

hearing on Lanier’s motion for new trial. Instead of presenting

testimony from this witness at the hearing, Lanier relied on a

summary of the witness’s unsworn statements to a GBI agent.

Regarding this purported witness who never testified, Lanier “must

introduce either testimony from the uncalled witness or a legally

recognized substitute for his or her testimony. He may not rely on

hearsay and speculation to prove ineffective assistance.” (Citation

and punctuation omitted.) Harris v. State, 

 (2) (a)

(

) (2018). The unsworn interview is not an appropriate

substitute for testimony. See 

 Therefore, Lanier provides no

evidentiary basis to make even a threshold claim of prejudice, which

he bears the burden of proving. See 

 Accordingly, Lanier’s claim

of ineffective assistance of trial counsel fails.

     4. Lanier next argues that the trial court abused its discretion

by admitting numerous crime scene and autopsy photographs over

his objection that the photographs were repetitive and irrelevant

and served only to inflame and prejudice the jury. We see no abuse

                                   16
of discretion in the admission of the photographs at issue.

          Pursuant to OCGA § 24-4-402, “[a]ll relevant
     evidence shall be admissible[.]” To evaluate relevancy,
     this Court relies on OCGA § 24-4-401, which defines
     “relevant evidence” as “evidence having any tendency to
     make the existence of any fact that is of 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 [(“Rule 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.” Id. “The
     ‘major function’ of Rule 403 is to ‘exclud(e) matter of scant
     or cumulative probative force, dragged in by the heels for
     the sake of its prejudicial effect.’ ”

(Citations omitted.) Ragan v. State, 

 (3) (

) (2016). Moreover, “the exclusion of relevant evidence under

Rule 403 is an extraordinary remedy that should be used only

sparingly.” (Citation and punctuation omitted.) Benton v. State, 

 (4) (

) (2017).

     Here, the State introduced eight autopsy photographs to which

Lanier objected at trial. The challenged autopsy photographs

depicted the Loves’ gunshot wounds from different angles, but they


                                  17
do not depict the victims’ autopsy incisions. We conclude that in the

context of murder case autopsy photographs, the photographs of the

Loves’ wounds are neither especially gory nor gruesome. See Pike v.

State, 

 (3) (

) (2018). Further, the

photographs were relevant to show the nature and location of the

victims’ wounds, which corroborated the State’s evidence of the

circumstances of the killings. See 

 (3). The challenged

photographs were therefore admissible, as Lanier has made no

showing that the photographs warranted exclusion under Rule 403.

See 

 (3). See also Allen v. State, 

 (3) (

) (2020).

     The State also published 36 photographs through a GBI agent

that depicted various images of the crime scene, over defense

counsel’s continuing objection. The State then sought to introduce

some additional photographs that showed both victims’ bodies at the

crime scene. The trial court excused the jury, reviewed the

photographs the State sought to admit, and ultimately admitted the

photographs over objection, finding that “while they’re bloody[,]

                                 18
they’ve been limited down, from a thousand down to approximately

. . . seven photographs and all either denote bullet wounds, defects

in the walls and . . . an intrusion into the victim’s pocket.” As we

have previously held, “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.” Plez v. State, 

 (3)

(

) (2017). The trial court did not abuse its discretion by

admitting the challenged photographs.

     5.   Lastly, Lanier argues that the trial court improperly

excused six potential jurors. We disagree.

     The record reflects that the trial court excused five potential

jurors for hardship after an individualized inquiry. Three of those

excused for hardship had medical reasons, one was too distressed

about her husband’s recent death to serve, and one was a full-time

caretaker for her grandmother who was in hospice.

     The trial court did not abuse its discretion in excusing these

five potential jurors for hardship. The trial court may excuse a

                                 19
potential juror where the juror shows “good cause.” OCGA § 15-12-

1.1 (a) (1); see also Young v. State, 

 (2) (

) (2012). “It is well-settled that a trial court may excuse a

potential juror for ‘good cause’ if jury service would impose an undue

hardship.” (Citations and punctuation omitted.) Davis v. State, 

 (2) (

) (2019). And whether to excuse a

juror for hardship lies within the trial court’s discretion. See Walker

v. Hagins, 

 (

) (2012). The trial court

had grounds for finding a hardship with respect to each of these five

potential jurors.

     As for the sixth potential juror, the trial court excused him

because he had known Lanier’s family for about 40 years and said

that his relationship would create bias and impact the verdict.

Although the juror said that he wanted to believe he could remain

impartial, he consistently indicated that his preexisting relationship

would color his evaluation of the evidence and witness testimony.

     “The trial court has broad discretion to determine a potential

juror’s impartiality and to strike for cause jurors who may not be

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fair and impartial.” DeVaughn v. State, 

 (2) (

) (2015). See also Peterson v. State, 

 (2) (

) (2007) (“Whether to strike a juror for cause lies within

the sound discretion of the trial court.” (citation and punctuation

omitted)). “A conclusion on an issue of juror bias is based on findings

of demeanor and credibility which are peculiarly in the trial court’s

province, and those findings are to be given deference.” (Citation and

punctuation omitted.) Peterson, 

 (2). Here, the

prospective juror expressed bias for Lanier based on his

relationship. We see no abuse of discretion in the trial court striking

this prospective juror for cause. See Scales v. State, 

 (4) (

) (2011) (no abuse of discretion where trial

court struck juror who expressed bias for cause); Hillman v. State,

 (2) (

) (2009) (no abuse of

discretion where trial court struck jurors for cause based on their

personal relationships with defendant).

     Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Peterson, Ellington, and McMillian, JJ., concur. Warren, J., not
participating.

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                   DECIDED DECEMBER 7, 2020.
     Murder. Wayne Superior Court. Before Judge Kelley.
     Earle J. Duncan III, for appellant.
     Jacquelyn L. Johnson, District Attorney, Thomas E. Buscemi,
John B. Johnson III, Assistant District Attorneys; 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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