Armstrong v. State

FINAL COPY

              S20A1364. ARMSTRONG v. THE STATE.


      PETERSON, Justice.

     Jhakeem Armstrong appeals his conviction for malice murder

for the death of Robert Parrish, Jr. (“Parrish”).1 He argues that the


     1  The crimes occurred on April 8, 2012. On September 19, 2012, an
Emanuel County grand jury indicted Armstrong along with Jeremy
Armstrong, Jacquez Worthen, and Reginald Young, Jr., for malice murder,
felony murder, voluntary manslaughter, aggravated assault, and four counts
of possession of a firearm during the commission of a crime. Following
Armstrong and Worthen’s joint trial held August 25 to 29, 2014, the jury found
Armstrong guilty of malice murder, aggravated assault, and two counts of
possession of a firearm during commission of a crime, but not guilty of felony
murder, voluntary manslaughter, and two counts of possession of a firearm
during the commission of a crime. Worthen was convicted of felony murder,
and his conviction was affirmed. See Worthen v. State, 

, 600 n.1,
604-607 (2) (

) (2019). The court sentenced Armstrong to life with
the possibility of parole for malice murder, a twenty-year sentence for
aggravated assault to be served concurrently with the life sentence, and two
five-year sentences for possession of a firearm during the commission of a
crime, one to be served consecutive to the life sentence and the other to be
served concurrently. Armstrong filed a motion for new trial on September 4,
2014, and amended the motion on March 15, 2019. After a hearing on the
motion for new trial held March 20, 2019, the trial court issued an order on
January 9, 2020, granting Armstrong’s request to amend his sentence to merge
the aggravated assault and firearm possession counts with the malice murder
conviction but denying his motion for new trial. Because the State has not
cross-appealed any sentencing errors that benefitted Armstrong, we decline to
consider any sua sponte. See, e.g., Newton v. State, 

, 863 n.1 (

) (2020). Armstrong filed a motion for out-of-time appeal on March
23, 2020. The trial court granted the motion on March 26. Armstrong filed a
trial court erred by admitting evidence that he was affiliated with a

gang under OCGA § 24-4-404 (b) (“Rule 404 (b)”), by permitting

witness testimony regarding certain photographs on the Internet

because the testimony amounted to hearsay and violated the best

evidence rule and the Confrontation Clause, and by failing to give a

limiting instruction regarding evidence that he was affiliated with a

gang. He also argues that his trial counsel provided ineffective

assistance by failing to ensure that the trial court gave the jury the

limiting instruction. But evidence of Armstrong’s gang affiliation

was relevant to and probative of his motive for committing the crime

charged and was thus admissible under Rule 404 (b). And even

assuming that the trial court erred in admitting testimony

regarding the Internet photos and failing to give a limiting

instruction, such errors did not contribute to the verdict, and

Armstrong has not shown that his trial counsel’s assistance was

ineffective. We affirm.



notice of appeal, and the case was docketed to this Court’s August 2020 term
and submitted for a decision on the briefs.

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      The evidence presented at trial showed the following. 2

Parrish’s son Faizon Parrish, Jakolby Williams, and Darshan

Habersham were at a park on Easter Sunday, April 8, 2012, along

with 100 to 200 other people who gathered for an egg hunt and

cookout. Jacquez Worthen was also at the park with Armstrong,

Armstrong’s brother Jeremy, and other friends. Worthen called

Habersham over and accused Faizon and Habersham of “jumping”

Jeremy at a party a few days earlier.3 Faizon and Habersham denied

that they jumped Jeremy, stating that it “was just a one on one

fight.” Worthen responded that he had some friends coming and

would find out what really happened.4 Faizon and Habersham

walked away. Faizon, believing Worthen’s words to be a threat and

fearing for his life, called Parrish, his father.



      2 Because this case requires an assessment of the harm and prejudice of

alleged trial court error and deficient performance by counsel, we present the
evidence as jurors reasonably would have viewed it, rather than in the light
most favorable to the verdicts.
       3 Worthen and Faizon apparently are related, but the precise nature of

their relation is unclear from the record.
       4 Habersham testified that Faizon became upset during the conversation

and Worthen responded by telling Faizon to calm down and that nobody was
going to do anything.

                                      3
     After receiving his son’s call, Parrish rushed to the park and

walked rapidly toward Worthen, ignoring a neighbor’s greeting. He

asked Worthen who was messing with his son, reminded him that

they were “kin folk,” and urged him to stop fighting and try to get

along. Armstrong, Jeremy, and other friends of Worthen and friends

of Faizon stood nearby, and a crowd of 20 to 30 people gathered.

Worthen responded, “your son jumped my homeboy,” and “[y]ou’re

my uncle but I’ll still fight ya.” As they spoke, the conversation grew

more heated. Parrish had a gun with him, although there is

conflicting testimony as to whether he took it out of its holster or

pointed it at anyone. There also is conflicting testimony about

whether Parrish threatened Worthen. Some witnesses said that

Parrish told Worthen, “I don’t fight anymore. I will shoot you and

leave you stinking,” and “I’m fixing to make an example out of

somebody.” Other witnesses said Parrish made no threats at all.

     At some point, Armstrong said twice, “Let’s just go on and do

this n****r.”5 Worthen asked Armstrong whether he had a gun.


     5 At least one witness testified that Armstrong said nothing.



                                     4
Parrish pushed aside a friend who was trying to pull him away and

said something to the effect that he would “die” or “kill” for his son.

Armstrong then moved behind Parrish and shot him in the back of

the head. Parrish fell to the ground face up, and Armstrong shot him

twice more after he fell.6 Armstrong started running; Faizon took his

father’s gun and charged at Armstrong, but his attempt to shoot

failed because the safety was on, and he was unable to find

Armstrong later. Armstrong hid his weapon under a nearby house

and fled. Police apprehended him in July 2012 after an extensive

search.

     At Armstrong and Worthen’s joint trial, Armstrong claimed

that he shot Parrish in self-defense and in defense of a third party,

Worthen. The State argued that Armstrong shot Parrish because

Worthen, as the leader of Armstrong’s gang, ordered the killing in

retaliation for Parrish’s public disrespect of the gang when Worthen

pointedly asked Armstrong if Armstrong had a gun. The State

introduced testimony by Jakolby Williams, a friend of Faizon who


     6 At least one witness said all the shots were fired before Parrish fell.



                                       5
was present at the shooting, that he saw pictures on the Internet of

Armstrong, Worthen, and their friends displaying Crips gang signs,

and that he observed them wearing blue bandannas in their back

pockets when in public. Armstrong’s trial counsel objected that the

testimony about the photos was hearsay, but the court overruled the

objection. Other witnesses testified that Armstrong, Worthen,

Jeremy, and their friends were “homeboys” in “the circle” that was

a local sub-group of the Crips gang, used hand signs associated with

the Crips gang, and regularly displayed black or blue bandannas;

additionally, Armstrong had gang-related tattoos and used the

name of a Crips founder as his profile name on Facebook. The State

also presented the testimony of an expert in gang investigations,

Charles Whitaker. Defense counsel objected to his testimony, but

the court overruled the objection. As we described in Worthen’s

appeal,

     Whitaker testified that the Crips street gang has a
     presence in Georgia; that gangs are associated with
     certain colors; that the color blue is predominantly
     associated with the Crips; and that he has seen Crips
     members in Georgia wearing blue bandannas, or


                                 6
     sometimes black. He identified certain hand signs
     associated with the Crips, including two that [Worthen]
     and Armstrong regularly made, as well as gang-affiliated
     tattoos in a photograph of Armstrong. Whitaker also
     testified that respect is an important aspect of gang
     culture; that throughout the course of his long career,
     nine times out of ten, an incident of gang violence started
     “over somebody being disrespected”; that in gang culture,
     disrespect triggers a disproportionate response; and that
     disrespect “could be anything,” including beating a gang
     member in a fight or standing up to a gang. He added that
     gangs have no problem reacting to perceived disrespect
     with violence, particularly when disrespect is shown in a
     public place, and that the violence functions both as
     payback for the disrespect and as a warning to the
     community of what they can expect if they cross the gang.

Worthen v. State, 

 (1) (a) (

) (2019).

     When the State sought to admit photographs as evidence of

Armstrong’s alleged gang activity, defense counsel objected.7 The

trial judge overruled the objection but agreed to defense counsel’s

request for a limiting instruction regarding evidence of Armstrong’s

gang affiliation, to be given at the time of the jury charge. But

Armstrong’s trial counsel did not later submit a written request for

the limiting instruction, and when the trial court failed to give the


     7 The tendered photos depicted Armstrong’s tattoos and showed Worthen

and other friends of Armstrong displaying gang signs.

                                     7
instruction in the jury charge, trial counsel did not raise an

objection.

     1. Armstrong does not challenge the sufficiency of the evidence,

but we have independently reviewed the evidence presented at trial

and conclude that the evidence was legally sufficient to authorize a

rational trier of fact to find beyond a reasonable doubt that he was

guilty of the crimes of which he was convicted. See Jackson v.

Virginia, 

 (

, 61 LE2d 560) (1979).8

     2. Armstrong argues that the trial court erred in allowing the

State to introduce other acts evidence under Rule 404 (b) that

purportedly demonstrated Armstrong’s participation in a gang.

While Armstrong is not entirely clear precisely whether all or merely

just some of the gang-related evidence should not have been

admitted, the evidence that the trial court admitted under Rule 404

(b) included photographs of him holding firearms and displaying


     8 We remind litigants that the Court will end our practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, 

 (4) (b) (

) (2020). The Court began assigning cases to the
December term on August 3, 2020.

                                     8
gang signs; evidence that he had gang-related tattoos and regularly

wore a black or blue bandanna, “mostly blue”; testimony that he

displayed gang signs; testimony describing photos of him on the

Internet displaying gang signs; and testimony by the State’s expert

in gang investigations that, among other things, explained in

additional detail the gang-related nature of much of this evidence.

See Worthen, 

 (1) (a) n.3. Even if Armstrong

challenges all of this evidence, his arguments fail.

     Prior to trial, Armstrong filed a motion in limine to exclude any

evidence regarding his gang participation or activity as improper

character evidence, irrelevant, and highly prejudicial, and to

exclude certain photographs for the same reasons and on the ground

that they could not be authenticated. The trial court denied

Armstrong’s motion at a pre-trial hearing but indicated that it would

not make a definitive ruling on the issue until it arose at trial.

     Under Rule 404 (b), “[e]vidence of other crimes, wrongs, or acts

shall not be admissible to prove the character of a person in order to

show action in conformity therewith[,]” but such evidence may be


                                   9
admissible for other purposes, including to prove motive. OCGA §

24-4-404 (b); Brooks v. State, 

 (

) (2016).

To offer evidence under Rule 404 (b), a party must show that: (1) the

evidence is relevant to an issue in the case other than the

defendant’s character; (2) the probative value of the evidence is not

substantially outweighed by its undue prejudice; and (3) there is

sufficient proof for a jury to find by a preponderance of the evidence

that the defendant committed the other act. Kirby v. State, 

 (4) (

) (2018). We review the trial court’s

admission of other acts evidence for abuse of discretion. See 

     (a) Armstrong argues that the evidence in question was not

relevant because the State never proved that the motive for the

crime was related to the alleged gang membership. We disagree.

“[E]vidence of motive for the homicide is always relevant in a

murder trial[.]” Romer v. State, 

 (1) (b) (

) (2013) (emphasis omitted). Armstrong’s co-defendant Worthen

raised this same issue in his appeal, and we held that evidence of

his involvement in gang activity was relevant to establish the motive


                                 10
for Parrish’s murder despite the fact that Worthen was not charged

with criminal gang activity. See Worthen, 

 (2).

Evidence that Armstrong, Worthen, and Jeremy were fellow gang

members, “in combination with the expert testimony that gangs

consider standing up to them to be an act of disrespect, provided

evidence” of Armstrong’s motive to shoot Parrish for standing up to

a fellow gang member in a public park. 

 (2).

     (b) Armstrong argues that evidence of his gang involvement

was more prejudicial than probative. Under OCGA § 24-4-403 (“Rule

403”), “[r]elevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice[.]”

Although “evidence of gang membership can be highly prejudicial[,]”

all inculpatory evidence is inherently prejudicial; “it is only when

unfair prejudice substantially outweighs probative value that the

rule permits exclusion.” Anglin v. State, 

 (3) (

) (2017) (citation and punctuation omitted; emphasis in

original). “The probative value of evidence is a combination of its

logical force to prove a point and the need at trial for evidence on


                                 11
that point.” Worthen, 

 (2) (citation and punctuation

omitted).

     As we concluded in Worthen, here “the prosecutorial need for

the other acts evidence showing gang membership was high”

because, without it, it is unclear what motive Armstrong would have

had to shoot Parrish in a crowded park merely because Parrish was

in a dispute with Worthen. 

 (2); see also Jackson v.

State, 

 (2) (b) (ii) n.10 (

) (2019) (genuine

question as to motive when defendant shot someone with whom he

apparently had no personal dispute). And although Armstrong

argues that the State failed to prove that the charged crime was

motivated by Armstrong’s gang membership, the State offered

sufficient evidence at trial for a reasonable jury to conclude

otherwise. Witnesses testified that Armstrong and Worthen were

members of the same gang, that the argument between Worthen and

Parrish began with Worthen accusing Parrish’s son of “jumping” one

of his “homeboys” who was also a member of that gang, that

Armstrong only shot Parrish after Worthen asked Armstrong if he


                                 12
had a gun, and that gang members are not hesitant to kill those

whom they deem to be disrespecting them, such as someone who

stands up to them in public. See Anglin, 

 (3) (evidence

of gang membership was “relevant to and probative of motive” where

witnesses testified that the shooter was seeking membership in a

gang, the victim had previously threatened the shooter, and the

gang “code” required violent responses to being threatened).

Considering the high probative value of the evidence regarding

Armstrong’s affiliation with a gang, keeping in mind that excluding

evidence under Rule 403 is “an extraordinary remedy” to be used

only sparingly, and reviewing the evidence “in a light most favorable

to its admission,” 

 (citation omitted), we conclude, as we did in

Worthen, 

 (2), that the trial court did not abuse

its discretion.

     (c) Armstrong also argues that there is insufficient proof of his

affiliation with a gang because the evidence is circumstantial and

disputed. But based on the evidence presented at trial, a rational

jury could have found that Armstrong was a member of a gang, and


                                 13
“it was for the jury to determine the credibility of the witnesses and

to resolve any conflicts or inconsistencies in the evidence.” Worthen,

 (1) (b) (citation and punctuation omitted). Therefore,

“the trial court did not abuse its discretion in admitting the evidence

under Rule 404 (b) over [Armstrong’s] objection.” 

 (2). 9

      3. Armstrong claims that the trial court erred when it allowed

the State’s witness Jakolby Williams to testify that he saw

photographs on the Internet in which Armstrong allegedly displayed

gang signs. His claims fail.

      At trial, Williams testified that he saw pictures on the Internet

of Armstrong, Worthen, and their friends displaying gang hand

signs.10 The pictures Williams referenced were not admitted into


      9 Evidence regarding Armstrong’s alleged affiliation with a gang might

also have been admissible as intrinsic evidence. Evidence is admissible as
intrinsic to the crimes charged when it is “(1) an uncharged offense arising
from the same transaction or series of transactions as the charged offense; (2)
necessary to complete the story of the crime; or (3) inextricably intertwined
with the evidence regarding the charged offense.” Fleming v. State, 

 (3) (a) (

) (2019) (citation and punctuation omitted).
Intrinsic evidence must also satisfy the balancing test set forth in OCGA § 24-
4-403. Id. at 245 (3) (a). But given our conclusion (as in Worthen) that
admission under Rule 404 (b) was not an abuse of discretion, we need not
decide this here.
      10 The portion of Williams’s testimony at issue is as follows:



                                      14
evidence. Armstrong argues that Williams’s testimony regarding the

photos constituted hearsay. Armstrong further claims that the

testimony violated the best evidence rule11 and denied him his right

of confrontation under the Confrontation Clause.12 Armstrong did

not object at trial to Williams’s testimony on grounds that it violated

the best evidence rule or the Confrontation Clause, so these two

claims are reviewable only as plain error. See OCGA § 24-1-103 (d)




       Q: Have you ever seen Mr. Worthen, [Armstrong], or his friends
       throwing those [Crips hand] signs that you’re familiar with?
       A: As far as like pictures on the internet.
       Q: Okay.
       A: That’s about it.
       Q: And you’ve seen them yourself?
       A: I haven’t seen it personally in person but like —
       [Defense counsel]: Objection —
       A: — like I said, on the internet.
       11 The best evidence rule provides that the original photograph is

required to prove the contents of a photograph. See OCGA § 24-10-1002.
       12 Armstrong also argues on appeal that the trial court’s ruling allowing

Williams’s testimony impaired his substantive rights because it denied him the
due process rights guaranteed by the federal and state Constitutions. It is
unclear from his brief whether, in referring to his due process rights,
Armstrong merely means to argue that the claimed error was not harmless
under a plain error analysis, or whether he means to assert a constitutional
violation distinct from his Confrontation Clause claim. And Armstrong makes
no substantial argument that the Georgia Constitution’s Due Process Clause
should be interpreted differently in this respect from the federal Due Process
Clause. Because we conclude that any error was harmless, we need not
consider any distinct claim.

                                      15
(“Nothing in this Code section shall preclude a court from taking

notice of plain errors affecting substantial rights although such

errors were not brought to the attention of the court.”).

     But we need not decide whether the testimony was hearsay or

violated the best evidence rule or the Confrontation Clause, because

any error was harmless. “Even an error of constitutional magnitude”

may be considered harmless “if the State can prove beyond a

reasonable doubt that the error did not contribute to the verdict,

such as when the evidence at issue is cumulative of other properly-

admitted evidence or when the evidence against the defendant is

overwhelming.” Ensslin v. State, 

 (2) (d) (

) (2020) (citation and punctuation omitted). Specifically

regarding Armstrong’s hearsay claim, “the erroneous admission of

hearsay is harmless where substantial, cumulative, legally

admissible evidence of the same fact is introduced.” Anglin, 

 (2); see also Davis v. State, 

 (4) (

) (2017) (even if statement fell outside of hearsay exception, its

admission was harmless, because it was merely cumulative of other


                                  16
evidence). In this case, Williams’s relatively brief testimony was

cumulative of much more extensive testimony from another witness,

Gina Copeland, that Armstrong and Worthen displayed gang signs

over a period of nearly two years prior to the shooting. And, of

course, the gang-sign evidence was only one part of the considerable

body of other evidence of gang membership. In the light of all the

other gang evidence, it is clear to us beyond a reasonable doubt that

the admission of Williams’s testimony about the photograph did not

contribute to the verdicts.

     4. Armstrong argues that the trial court committed plain error

when it charged the jury without giving an instruction that the

evidence of Armstrong’s gang affiliation was admitted for the limited

purpose of proving motive. We disagree.

     Because Armstrong’s trial counsel did not object at trial to the

lack of a limiting instruction, this claim is reviewable only for plain

error. See OCGA § 17-8-58 (b) (providing in part that “[f]ailure to

object in accordance with subsection (a) of this Code section shall

preclude appellate review of such portion of the jury charge, unless


                                  17
such portion of the jury charge constitutes plain error which affects

substantial rights of the parties”). To establish plain error,

Armstrong “must point to an error that was not affirmatively

waived, the error must have been clear and not open to reasonable

dispute, the error must have affected his substantial rights, and the

error must have seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” Denson v. State, 

 (2) (

) (2019) (citation and punctuation

omitted). To show that his substantial rights were affected,

Armstrong must make an “affirmative showing that the error

probably did affect the outcome below.” McKinney v. State, 

 (2) (b) (

) (2019) (citation and punctuation

omitted). If Armstrong fails to meet any one of the elements of the

plain error test, his claim fails. See Denson, 

 (2).

      Even assuming that the trial court’s failure to give a limiting

instruction was clear error, Armstrong cannot establish that the

error affected his substantial rights because he has not shown that

the error probably affected the outcome of his trial. Armstrong


                                  18
makes only conclusory arguments about harm. Throughout his brief,

he acknowledges that the gang evidence “featured prominently in”

and “was naturally a major component of” the State’s theory of the

case. The record bears this out; as described above, the State’s

theory was that gang membership motivated Armstrong’s actions.

The State relied heavily on this theory in both opening and closing

arguments. The challenge for Armstrong’s argument is that the

limiting instruction he contends should have been given would have

told the jury that motive was a proper purpose for which the jury

could consider the gang evidence.

     Armstrong’s only response to this point is conclusory

statements and bald assertions that the jury may have used the

gang evidence to form negative conclusions about Armstrong’s

character and convicted him on that improper ground. But given

how the State used the evidence regarding motive, and given that

Armstrong does not contend that the State made any improper

arguments regarding the evidence, any such possibility is too

speculative and remote. After factoring in the considerable damage


                                19
to Armstrong from the properly admitted gang-affiliation evidence,

any additional prejudice that may have resulted from the trial

court’s failure to provide the limiting instruction was so minimal

that it did not change the outcome of Armstrong’s trial.

     5. Finally, Armstrong asserts that his trial counsel was

ineffective in failing to ensure that the trial court gave the jury a

limiting instruction regarding evidence of Armstrong’s involvement

in a gang. Specifically, he argues that his trial counsel was

ineffective because although she orally requested that a limiting

instruction be given in the jury charge, she did not submit a written

request for the limiting instruction or object when the trial court

failed to give the limiting instruction. Again, we disagree.

     For Armstrong to prevail on his ineffectiveness claim, he must

show (1) that his trial counsel’s performance was constitutionally

deficient and (2) that he was prejudiced by her deficient

performance. See Strickland v. Washington, 

 (

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

(

) (2020). Armstrong “must satisfy both prongs of the


                                  20
Strickland test, and if he fails to establish one prong, we need not

examine the other.” 

 To establish prejudice, Armstrong “must

show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Strickland, 

.

     Armstrong cannot show prejudice. Even if Armstrong’s trial

counsel’s failure to remind the court about its omission of the

limiting instruction by making an objection constituted deficient

performance, it did not prejudice Armstrong given our conclusion in

Division 4 above that the lack of a limiting instruction did not affect

the outcome of Armstrong’s trial. See Davis, 

 (6) (d).13

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




     13 Armstrong makes no argument that all the errors we assume today,

individually harmless, nevertheless harmed him when aggregated. And no
such cumulative prejudice is apparent to us on this record. See State v. Lane,

 (1) (

) (2020) (“[A] defendant who wishes to take
advantage of the [cumulative error rule] should explain to the reviewing court
just how he was prejudiced by the cumulative effect of multiple errors.”).

                                     21
                    DECIDED DECEMBER 21, 2020.
     Murder. Emanuel Superior Court. Before Judge Palmer.
     Bentley C. Adams III, for appellant.
     S. Hayward Altman, District Attorney, Courtney M. Patterson,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Kathleen L. McCanless,
Assistant Attorney General, for appellee.




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