Middlebrooks v. State

FINAL COPY

            S21A0381. MIDDLEBROOKS v. THE STATE.


      BETHEL, Justice.

      Deshaun Middlebrooks appeals his convictions for malice

murder and other crimes in connection with the shooting death of

Quintavious Barber and the aggravated assault of Keundre

Chappell.1 Middlebrooks contends that the trial court erred in


      1 The crimes occurred on January 25, 2017. In March 2017, a Henry

County grand jury indicted Middlebrooks and Tory Jaleel Jones for malice
murder of Barber (Count 1), felony murder based on aggravated assault of
Barber (Count 2), aggravated assault of Barber (Count 3), aggravated assault
of Chappell (Count 4), aggravated battery of Chappell (Count 5), and
possession of a firearm during the commission of a felony (Count 6). Jones was
also charged individually with possession of less than an ounce of marijuana
(Count 7). His case is not part of this appeal. A jury jointly tried Middlebrooks
and Jones in October to November 2018 and found them both guilty on all
counts. The trial court sentenced Middlebrooks to life in prison without the
possibility of parole on Count 1, twenty years concurrent on Count 3, twenty
years consecutive to Count 1 on Count 4, and five years consecutive to Count 4
on Count 6. The trial court vacated Count 2, and purported to merge Count 5
into Count 4, although it appears the inverse would have been the proper
action. See Welch v. State, 

 (4) (

) (2020).
However, as this merger error does no harm to Middlebrooks and the State has
not raised it by cross-appeal, we decline to correct the error. See Dixon v. State,

 (

) (2017). On November 29, 2018, Middlebrooks
filed a motion for new trial, which was subsequently amended. The trial court
denied the motion for new trial on August 10, 2020. Appellate counsel filed a
denying his motion to exclude evidence of gang activity and that he

received constitutionally ineffective assistance of trial counsel.

Because Middlebrooks’ conviction for the aggravated assault of

Barber should have merged into the malice murder conviction, we

vacate the conviction and sentence for that count. Otherwise, we

affirm.

     1.   Evidence presented at trial showed that Barber was a

member of the Bloods street gang — specifically, a subset called “Sex

Money Murder” — and that Tory Jones and Middlebrooks were also

members of that same subset. In January 2017, Barber sent out a

message to some of his contacts indicating that he was looking to

trade his rifle for two pistols. One person responded that he or she

knew someone who would be interested in the exchange and

provided Middlebrooks’ number. Another person messaged Barber

to let him know that he or she and a fellow gang member each had

a pistol to trade for the rifle. Barber then met with Jones and traded


timely notice of appeal on August 14, 2020. This case was docketed in this
Court to the term commencing in December 2020 and submitted for a decision
on the briefs.
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a rifle for the two pistols. However, after the trade, both Jones and

Barber were dissatisfied. Barber told the contact who organized the

exchange that he felt that they had tried to “slime” or “rob” him.

     Barber eventually agreed to meet with Jones to get back the

rifle he had traded. Barber reassured his concerned friend, Keundre

Chappell, that the trade would be fine because Barber and Jones

were members of the same gang. Additionally, a “big homie” (i.e.,

Middlebrooks) who was “over” other gang members, was coming. On

January 25, Barber and Chappell met Jones and Middlebrooks in a

parking lot for the trade. Middlebrooks exited his car and began

speaking with Barber by the car’s trunk. Jones also exited the car,

greeted Barber, and returned to sit in the car. Chappell, who felt

uneasy, backed away from the group to stand some distance away.

Barber asked for his rifle that he had exchanged, and Middlebrooks

told Jones to open the trunk. Jones replied that he could not find the

trunk-release button, so Middlebrooks walked toward the driver’s

side door to open the trunk. As soon as the trunk opened,

Middlebrooks started shooting at Barber and Chappell. Chappell

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was shot in his left hand and fell to the ground between two cars.

Chappell saw Barber run past him, and he got up and started

running behind him. Chappell and Barber ran to a nearby

apartment, where Barber collapsed on the floor. Barber had been

shot six times and died from his injuries. Middlebrooks later told

Chappell’s cousin, who shared his dorm in jail, that he shot Barber

because Barber moved from a subset of the Eastside Bloods to Sex

Money Murder, and because Barber, who was his subordinate in the

gang, did not give him a gun.2

     2. Prior to trial, Middlebrooks filed motions to exclude any

evidence regarding his gang participation or activity as improper

character evidence under OCGA § 24-4-404 (b), irrelevant, and

highly prejudicial. The trial court denied Middlebrooks’ motions

following a pre-trial hearing and ruled that the gang evidence was

admissible because it was intrinsic to the crimes charged.




     2 Middlebrooks does not argue that the evidence was insufficient to
support his convictions, and because this case was docketed to the term of
Court that began in December 2020, we do not review that issue sua sponte.
See Davenport v. State, 

 (4) (

) (2020).
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Middlebrooks argues that the trial court abused its discretion in

denying his motions and that as a result, the trial was “riddled” with

gang evidence and references to gang activity including during voir

dire questioning, opening statements, witness examinations, and

closing statements. As explained below, we conclude that the trial

court did not abuse its discretion by admitting this evidence at trial.

     (a) Middlebrooks argues that the gang evidence was not

relevant because the State did not charge him with a violation of the

Georgia Street Gang Terrorism and Prevention Act, there was no

evidence of ongoing gang activity, the State did not adequately prove

that Middlebrooks was a gang member, and the evidence was

unnecessary to prove motive. We disagree.

     Evidence is admissible as intrinsic evidence 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.

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

 (IV) (d) (

) (2017). In applying these factors, this


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Court has previously noted that

     evidence pertaining to the chain of events explaining the
     context, motive, and set-up of the crime is properly
     admitted if it is linked in time and circumstances with the
     charged crime, or forms an integral and natural part of an
     account of the crime, or is necessary to complete the story
     of the crime for the jury.

(Citation and punctuation omitted.) 

 (IV) (d). “It is

within the trial court’s sound discretion to determine whether to

admit such evidence, so we review a trial court’s ruling admitting

evidence as intrinsic for an abuse of that discretion.” (Citation and

punctuation omitted.) Harris v. State, 

 (2) (b) (

) (2020).

     Here, the State presented evidence from which the jury could

conclude that Middlebrooks and Barber were active gang members

in the same gang and that Middlebrooks was motivated to shoot

Barber because of a perceived disrespect. The challenged gang

evidence thus plainly pertained to the chain of events in the case

and was linked in time and circumstance with the charged crimes,

making the information necessary to complete the story for the jury.


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See Williams, 

 (IV) (d). See also Harris, 

 (2) (b) (“necessary” evidence is that which is “reasonably

necessary” to help the jury understand the sequence of events, not

that which is “strictly necessary”). Further, even in the absence of a

gang-related charge, evidence of gang activity or affiliation may still

be admissible to show motive. See Armstrong v. State, __ Ga. __, __

(2) (a) (__ SE2d __) (2020). Accordingly, Middlebrooks’ arguments

lack merit.

     (b) Middlebrooks also argues that evidence of his gang

involvement was more prejudicial than probative and was also

inaccurate. 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.” (Citation and punctuation omitted; emphasis in

original.) Anglin v. State, 

 (3) (

) (2017).

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Intrinsic evidence must satisfy Rule 403. See Williams, 

 (IV) (d).

     Here, the trial court did not abuse its discretion in determining

that the probative value of the gang evidence in establishing the

context and motive for the charged offenses was not substantially

outweighed by the danger of unfair prejudice. See Anglin, 

 (3) (probative value of evidence of defendant’s alleged gang

membership outweighed danger of unfair prejudice where evidence

was relevant and probative of motive). Additionally, any alleged

inaccuracies or objections raised on appeal by Middlebrooks with

respect to the credibility of the gang evidence went not to the

evidence’s admissibility but rather its weight, which is for the jury

to resolve. See Davis v. State, 

 (4) (

)

(2000) (discrepancy in witness testimony went to weight and

credibility of evidence rather than its admissibility). Thus, the trial

court did not abuse its discretion in admitting the evidence

Middlebrooks complains about on appeal.

     3. Middlebrooks next argues that he received constitutionally

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ineffective assistance because his trial counsel should have retained

an expert on gangs to advance the defense’s theory that the shooting

was not actually gang-related and that Chappell was the aggressor

in the shooting. Middlebrooks argues that his trial counsel was not

prepared to defend Middlebrooks or to explain the gang evidence

because trial counsel failed to retain such an expert. We disagree.

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

defendant    must    show    that    counsel’s   performance     was

constitutionally deficient and that the deficient performance

resulted in prejudice to the defendant. See Strickland v.

Washington, 

 (III) (

, 80 LE2d

674) (1984); Wesley v. State, 

 (3) (

)

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

demonstrate that his attorney “performed at trial in an objectively

unreasonable way considering all the circumstances and in the light

of prevailing professional norms.” Romer v. State, 

(3) (

) (2013); see also Strickland, 

(III) (A). This requires a defendant to overcome the “strong

                                 9
presumption” that trial counsel’s performance was adequate.

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, 

 (III) (B). “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).

     “[T]he decision whether to present an expert witness, like other

decisions about which defense witnesses to call, is a matter of trial

strategy that, if reasonable, will not sustain a claim of ineffective

assistance.” (Citation and punctuation omitted.) Sullivan v. State,

 (2) (b) (

) (2020). See also Thomas v.

State, 

 (3) (b) (

) (2008). Here, trial

counsel admitted at the motion for new trial hearing that she did

not anticipate the introduction of gang-related evidence and

therefore did not retain an expert witness. But the inquiry focuses

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on what a reasonably competent attorney may do under the

circumstances. See Chavez v. State, 

 (2) (b) (

) (2020) (trial counsel’s own assessment of his performance

does not control; rather, to establish that trial counsel was deficient,

the appellant has to show that “no reasonable attorney” would have

taken the same course of action as trial counsel). And although

expert testimony might have been helpful in rebutting the evidence

of gang activity and affiliation presented by the State at trial — as

the expert that new counsel retained attacked the reliability of the

State’s gang evidence at the hearing on the motion for new trial —

competent trial counsel could have reasonably determined that

calling a gang expert to testify at trial might have served only to

emphasize evidence that Middlebrooks was involved in a gang,

which was key to the State’s theory for Middlebrooks’ motive. Rather

than attack such evidence with an expert, competent trial counsel

could have reasonably decided to attack the gang evidence in other

ways, including by cross-examining the State’s witnesses who

testified about gang activity and by arguing to the jury that the gang

                                  11
evidence was not credible or accurate, as trial counsel did here.

Accordingly, because Middlebrooks cannot establish that his trial

counsel performed deficiently, this enumeration fails. See Stripling

v. State, 

 (3) (b) (

) (2018) (counsel could

reasonably decide not to call competing expert witness and instead

focus on cross-examination of State’s witness); Matthews v. State,

 (

) (2017) (counsel reasonably

determined not to call expert witness and focused on cross-

examination and argument to advance defense theory).

     4. Finally, although not raised as error by Middlebrooks, we

have identified a sentencing error. The trial court sentenced

Middlebrooks for both the malice murder and aggravated assault of

Barber. But, as charged in the indictment, the malice murder charge

and the aggravated assault charge were both based on the gunshot

that killed Barber. In light of the jury’s verdicts, the trial court

should have merged the count for the aggravated assault of Barber

with the conviction for his malice murder. Because it did not, we

vacate Middlebrooks’ conviction and sentence for the aggravated

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assault of Barber. See Lumpkin v. State, 

 (4) (

) (2020).

     Judgment affirmed in part and vacated in part. All the Justices
concur.


                    DECIDED FEBRUARY 1, 2021.
          Murder. Henry Superior Court. Before Judge Amero.
          Manning Peace, Holly Y. Peace, for appellant.
          Darius T. Pattillo, District Attorney, Sharon L. Hopkins,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Ashleigh D. Headrick,
Assistant Attorney General, for appellee.




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