¶1In the Supreme Court of Georgia
¶2 Decided: September 21, 2021
¶3 S21A0638. CRAWFORD v. THE STATE.
¶4 NAHMIAS, Chief Justice.
¶5 Appellant Gerrod Crawford was convicted of felony murder and
¶6other crimes related to the shooting death of Antonio McBride. On
¶7appeal, he contends that the trial court should have granted his
¶8motion for a directed verdict of acquittal and that his trial counsel
¶9provided ineffective assistance by failing to make a timely objection
¶10to an improper statement made by the prosecutor during her closing
¶11argument. We affirm. 1
¶12 1 The crimes occurred on November 3, 2015. In June 2016, a Fulton County grand jury indicted Appellant and Kahreek Flowers for malice murder, two counts of felony murder, criminal attempt to commit armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. Appellant was also indicted for possession of a firearm by a first offender probationer and felony murder based on that offense. Flowers pled guilty to murder and testified at Appellant’s trial. Appellant was tried from March 19 to 23, 2018; the jury found him not guilty of malice murder but guilty of the other charges. On March 30, the trial court sentenced Appellant to serve 1. Viewed in the light most favorable to the verdicts, the
¶13evidence presented at trial showed the following. In the early
¶14morning hours of November 3, 2015, Stanley Walcott drove Kahreek
¶15Flowers (who was “like a little brother” to Walcott), Appellant
¶16(Flowers’s friend), Dayquan Johnson (Flowers’s nephew), Jayda
¶17Carradine (Appellant’s girlfriend), and Jabrea Watkins (Carradine’s
¶18sister) from Jonesboro to the house of Walcott’s drug dealer in
¶19Atlanta to buy some marijuana. While they were there, Antonio
¶20McBride, who was walking home from work, was killed nearby. He
¶21was shot three times, once in his back, once in his buttock, and once
¶22in his face. The two bullets found in his body were fired from the
¶23same gun.
¶24 At Appellant’s trial, Johnson gave the following account of
¶25life in prison for felony murder based on aggravated assault and 10 concurrent years in prison for attempt to commit armed robbery, plus five suspended years in prison for each firearm count. The remaining counts were merged or vacated by operation of law. Appellant filed a timely motion for new trial, which he later amended with new counsel. In October 2020, after an evidentiary hearing, the trial court denied Appellant’s motion. Appellant filed a timely notice of appeal to the Court of Appeals, which properly transferred the case to this Court. The case was docketed to our April 2021 term and submitted for decision on the briefs. 2 what happened when Walcott’s car arrived at the dealer’s house in
¶26Atlanta. Walcott went inside the house, while everyone else stayed
¶27in the car. After waiting for some time, Appellant got out of the car
¶28and “paced around the parking lot, looking upset.” About five
¶29minutes later, Appellant saw someone coming and told Flowers to
¶30“come on.” Flowers got out of the car, and Appellant and Flowers
¶31approached a man and “tried to rob” him. Appellant and Flowers,
¶32who each had a gun, appeared to pistol-whip the man. When the
¶33man fell to the ground at their feet, Appellant and Flowers pointed
¶34their guns at him. The man tried to get up, and Flowers shot him
¶35twice. The man started yelling, and Flowers shot him again.
¶36Appellant and Flowers then ran back to the car and got in, each still
¶37carrying a gun. Walcott returned to the car; Appellant told him,
¶38“come on, we got to go”; and Walcott got in the car and drove away.
¶39 Several months after the shooting, the police identified Flowers
¶40as a suspect. When he was interviewed by detectives on March 22,
¶412016,2 Flowers initially said that Appellant alone got out of the car
¶42 2 Part of the interview was audio-recorded and played for the jury. 3 and beat and shot the victim. Flowers said that the encounter was a
¶43“lick” (which a detective testified meant a robbery). After more
¶44questioning, however, Flowers said that he and Appellant were
¶45outside the car and about seven or eight feet away from the man
¶46when the man started “reaching as if he was about to grab
¶47something” and Flowers got scared and shot at the man two or three
¶48times. Appellant did not fire, but he pulled his gun to “back[]
¶49[Flowers] up.”3
¶50 Walcott, Watkins, and Carradine also gave accounts of that
¶51night. None of them said that they saw Appellant with a gun or
¶52fighting anyone, but Walcott testified and Watkins told a detective
¶53 3 Flowers provided two additional accounts of the shooting. On September 12, 2016, Flowers wrote a statement for the police claiming that Appellant had been walking with Flowers outside the car, but left him to go to the bathroom. Flowers then “walked up on the victim,” voices in Flowers’s head told Flowers to “get him,” and Flowers shot the victim. Appellant was not near Flowers or in any way involved in the shooting. At trial, Flowers testified that when Walcott came out of the house and got in the car, Appellant had to use the bathroom, so he went around to the other side of the house. Then Flowers saw a man walking down the street, and Flowers and Walcott “ran up on him.” Walcott hit the man, who ended up on the ground. Flowers declined to answer questions about how the man was shot or why Walcott wanted to approach the man.
¶54 4 that Appellant and Flowers got out of the car, there was at least one
¶55gunshot, Appellant and Flowers then returned to the car, and the
¶56group drove away. Watkins also told the detective that before the
¶57gunshot, she heard Appellant and Walcott talking about robbing the
¶58drug dealer; after Appellant and Flowers returned to the car,
¶59Walcott asked, “did you bum him,” and Flowers said something like
¶60“yeah, . . . we shot him” or “I shot him.” 4 Carradine testified that she
¶61did not remember if Appellant and Flowers got out of the car, and
¶62she did not see or hear any shooting.
¶63 Appellant’s video-recorded interview with a detective was
¶64played for the jury. Appellant claimed that Flowers and Walcott
¶65went into the house, while he, Watkins, and Carradine waited in the
¶66car 5; Appellant did not hear anything unusual; and eventually,
¶67Flowers and Walcott got back in the car with marijuana and
¶68 4 Watkins gave the above account when she was interviewed by a detective on March 26, 2016. At trial, Watkins claimed that this account was a lie, which she told because she was scared. She testified that the group simply drove to Atlanta, could not get the drugs they wanted, and drove back to Jonesboro. 5 Appellant did not initially include Johnson in the group. After the
¶69detective said that Johnson admitted being there, Appellant agreed that he was and claimed that he got out of the car with Walcott and Flowers. 5 everyone drove away. The defense stipulated that Appellant was a
¶70first-offender probationer. Appellant did not testify or present any
¶71witnesses at trial. His defense was that Flowers was solely
¶72responsible for the shooting. Appellant moved for a directed verdict
¶73of acquittal as to all charges at the close of the State’s evidence,
¶74which the trial court denied.
¶75 2. Appellant argues that the trial court erred by not granting
¶76his directed verdict motion. See OCGA § 17-9-1 (a). 6 We have
¶77explained that
¶78 [t]he test established in Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), is the proper test for us to use when a challenge to the sufficiency of the evidence arises from the denial of a motion for directed verdict. See Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). Under that test, we view all of the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was
¶79 6 OCGA § 17-9-1 (a) says: Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or “not guilty” as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any. 6 convicted. Jackson, 443 U.S. at 319 (III) (B).
¶80Holmes v. State, 307 Ga. 441, 443 (836 SE2d 97) (2019).
¶81 Appellant argues that he was entitled to a directed verdict of
¶82acquittal because Flowers admitted being the shooter and testified
¶83that Appellant was not involved in the shooting. Appellant also
¶84notes that Walcott, Watkins, and Carradine said that they did not
¶85see him holding a gun or fighting with the victim.
¶86 It is true that in two of his four stories, including the one he
¶87told at trial, Flowers said that Appellant was on the other side of the
¶88house going to the bathroom when the shooting happened, see
¶89footnote 3 above. However, Flowers initially said that Appellant
¶90alone attempted to rob and then shot the victim, and Flowers then
¶91told the detectives that Appellant had pulled a gun to back Flowers
¶92up when Flowers shot the victim.
¶93 We leave to the jury the resolution of [such] conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences derived from the facts. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.
¶94 7 Boyd v. State, 306 Ga. 204, 207 (830 SE2d 160) (2019) (citation and
¶95punctuation omitted).
¶96 Moreover, Flowers’s account that he and Appellant worked
¶97together during the armed attack was corroborated by Johnson’s
¶98testimony that Appellant got out of the car with Flowers to try to rob
¶99the victim, pistol-whipped the victim, and pointed a gun at the
¶100victim before Flowers shot the victim. And while Walcott, Watkins,
¶101and Carradine claimed that they did not see Appellant with a gun,
¶102Walcott and Watkins heard at least one gunshot when Appellant
¶103was out of the car with Flowers, and Watkins heard Appellant talk
¶104about robbing someone. Thus, when properly viewed in the light
¶105most favorable to the verdicts, the evidence was legally sufficient to
¶106support Appellant’s convictions, at least as a party to the crimes. See
¶107Jackson, 443 U.S. at 319. See also OCGA § 16-2-20 (b) (defining
¶108party to a crime); Jackson v. State, 303 Ga. 487, 489 (813 SE2d 372)
¶109(2018) (“Even where it is undisputed that the victim was shot by
¶110another person, every person concerned in the commission of the
¶111 8 crime may be convicted of the crime.”). 7
¶112 3. Appellant also claims that his trial counsel provided
¶113ineffective assistance by failing to object to the prosecutor’s
¶114assertion in closing argument that if the jury found Appellant guilty
¶115of involuntary manslaughter, he would “get away.” This claim fails.
¶116 (a) At Appellant’s request, involuntary manslaughter (based on
¶117affray, simple battery, and simple assault) was listed on the verdict
¶118form as a lesser included offense of the murder counts. 8 During
¶119closing argument, the prosecutor discussed the involuntary
¶120manslaughter charge, arguing that the jury should find Appellant
¶121not guilty of that unindicted offense because the evidence showed
¶122that he and Flowers were intentionally attempting to rob McBride
¶123at gunpoint when the fatal shooting occurred. The prosecutor then
¶124 7 We note that the jury was instructed on the definition of party to a crime. 8 See OCGA § 16-5-3 (a) (“A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.”). 9 said:
¶125 So there’s a trick here, all right. Here’s the trick. If you fill the [verdict] form out wrong, he gets off, it’s called a technicality. Yeah, that’s right. There is going to be a form, and if you fill it out incorrectly, he gets away. So, ladies and gentlemen, if your verdict is actually malice murder, guilty; or felony murder, guilty; do not write guilty on involuntary manslaughter, okay. I wish it wasn’t this way. I wish there wasn’t like a technicality where if somebody messes up a form and your true verdict is not given, but this [is] something we have to deal with. . . . [P]lease, if your verdict is guilty, write guilty on the appropriate line for the aggravated assault for the felony murder, because, literally, if you-all 12 people decide that, yes, he is guilty of the murder, but you write guilty on involuntary, that will be the verdict, a technicality, he will get away, that’s all I’m saying.
¶126Appellant’s counsel did not object.
¶127 The trial court’s final instructions to the jury included a
¶128discussion of how the jury should consider involuntary
¶129manslaughter:
¶130 After consideration of all of the evidence, before you would be authorized to return a verdict of guilty of malice murder or felony murder, . . . you must determine whether mitigating circumstances, if any, would cause the offense to be reduced to involuntary manslaughter. A person commits involuntary manslaughter when that person causes the death of another human being without any intention to do so, by the commission of the offense of
¶131 10 one of the following offenses: affray, simple battery, or simple assault.
¶132The court then defined those three misdemeanor offenses (which
¶133were not separately listed on the verdict form). The court also
¶134explained that it was the court’s duty to instruct the jurors on the
¶135law and that jurors “are not to concern [them]selves with
¶136punishment.”
¶137 After being instructed, the jury deliberated for a little less than
¶138an hour before being released for the day. Shortly after 9:00 a.m. the
¶139next morning, as the jury recommenced its deliberations,
¶140Appellant’s attorneys raised an objection to the prosecutor’s
¶141statement about involuntary manslaughter, acknowledging that the
¶142objection was untimely but explaining that they had consulted with
¶143someone in their “appeals department” overnight, who said that
¶144they should have objected. They argued that the prosecutor’s
¶145statement that if Appellant was convicted of involuntary
¶146manslaughter, he would “go free” was a mischaracterization of the
¶147law, and they asked the trial court to clarify that a guilty verdict on
¶148 11 any of the crimes “is a conviction and there is no going free.”
¶149 The court heard further argument about the objection and then
¶150reviewed the transcript of the closing argument. During this time,
¶151the jury sent a note asking to hear some of the evidence again. The
¶152jury was brought into the courtroom, and some witness statements
¶153were replayed. Before the jurors returned to their deliberations, the
¶154court advised them, without objection:
¶155 One thing I wanted to tell you is that involuntary manslaughter, as well as all of the other charges on the indictment[,] are all felony charges. There was some dispute as to whether he would be getting off or something, but they’re all felony charges and you need to be aware of that.
¶156The jury then deliberated for another four and a half hours before
¶157reaching its verdicts. Before the verdicts were read, Appellant’s
¶158counsel moved for a mistrial based on the prosecutor’s statement
¶159during closing argument, which the court denied. In its order
¶160denying Appellant’s motion for new trial, the court ruled that the
¶161prosecutor’s “getting away” argument was improper and thus
¶162objectionable, but trial counsel’s deficient performance in not
¶163 12 objecting did not cause Appellant prejudice.
¶164 (b) We agree with the trial court that Appellant has failed to
¶165demonstrate prejudice.
¶166 For [Appellant] 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 counsel’s deficient performance. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). If [Appellant] fails to establish one prong of the Strickland test, “we need not examine the other.” Robinson v. State, 308 Ga. 543, 553 (3) (842 SE2d 54) (2020). To establish prejudice, [Appellant] “must show that there is a reasonable probability that, but for counsel’s unprofessional error[ ], the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. To determine whether [Appellant] has shown Strickland prejudice, “we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done.” Swanson v. State, 306 Ga. 153, 163 (2) (b) (829 SE2d 312) (2019) (citation and punctuation omitted).
¶167Draughn v. State, 311 Ga. 378, 382-383 (858 SE2d 8) (2021).
¶168 The prosecutor’s argument was obviously improper, and
¶169Appellant’s trial counsel should have objected immediately. But
¶170Appellant has not shown that this deficient performance likely
¶171affected the outcome of his trial. Although the prosecutor’s
¶172comments were not immediately corrected, the trial court
¶173 13 specifically advised the jury the next morning that involuntary
¶174manslaughter is a felony charge and Appellant would not be “getting
¶175off,” and the jury continued to deliberate for about four and a half
¶176hours after receiving that instruction. Also, before deliberations
¶177began, the jurors were instructed on how to consider the involuntary
¶178manslaughter charge and told that the court would instruct them on
¶179the law and that they should not concern themselves with
¶180punishment. Moreover, there was little if any evidence of
¶181involuntary manslaughter, 9 so the jury was unlikely to find
¶182Appellant guilty of that offense regardless of the prosecutor’s
¶183misstatement.
¶184 Accordingly, Appellant’s claim of ineffective assistance of
¶185counsel fails. See Draughn, 311 Ga. at 384 (“Considering the
¶186strength of the evidence against [the appellant] and the trial court’s
¶187thorough and correct instructions to the jury, it is unlikely that
¶188defense counsel’s failure to object to the prosecutor’s [incorrect]
¶189 9 We need not and do not decide whether an involuntary manslaughter charge was properly given based on the trial evidence. 14 statements about reasonable doubt affected the outcome of [the
¶190appellant’s] trial.”); Clark v. State, 307 Ga. 537, 544 (837 SE2d 265)
¶191(2019) (holding that the appellant failed to show prejudice based on
¶192trial counsel’s failure to object to the prosecutor’s plain
¶193misstatement of the law on the presumption of innocence, because
¶194the trial court correctly instructed the jury on the relevant law and
¶195the appellant had not presented any evidence that the jury ignored
¶196those instructions).
¶197 Judgment affirmed. All the Justices concur.
¶198 15