Smith v. State

FINAL COPY

                   S22A0271. SMITH v. THE STATE.


      MCMILLIAN, Justice.

      Tracy LaShawn Smith appeals his conviction for felony murder

in connection with the death of Jerome Walden.1 On appeal, Smith


      1  Walden was killed on June 24, 2011. On September 28, 2011, a
Dougherty County grand jury indicted Smith, Calvin Sharmond Brooks, and
Demarcus Dontravious Lewis in connection with Walden’s death, charging
them with felony murder (Count 1), aggravated assault (Count 2), and
aggravated battery (Count 3). Smith was first tried separately in a jury trial
from December 12 to 20, 2011. The jury found Smith guilty of aggravated
assault and aggravated battery but was unable to reach a verdict on the felony
murder charge in Count 1. The trial court granted a mistrial as to that count,
and Smith filed a plea in bar on double jeopardy grounds to prevent his retrial
for felony murder. The trial court denied the plea, and this Court affirmed that
denial in Smith v. State, 

 (1) (

) (2013).
       Upon return of the remittitur from that appeal, Smith was tried a second
time from April 22 to May 2, 2013. Although Smith was scheduled to be tried
along with Lewis and Brooks, Lewis pleaded guilty to aggravated assault and
aggravated battery on the first day of trial, and the trial court granted Brooks’s
motion for severance. Therefore, Lewis’s and Brooks’s cases are not a part of
this appeal. Smith was again tried separately on the sole count of felony
murder, and the jury found him guilty. The trial court sentenced Smith to serve
life in prison on the felony murder charge, and the aggravated assault and
aggravated battery convictions were merged. Smith’s trial counsel filed a
timely motion for new trial, which was amended by new counsel on September
13, 2019, and by appellate counsel on October 3 and 14, 2019. The motion for
new trial was heard on March 6 and December 2, 2020, and the trial court
denied the motion, as amended, on March 2, 2021. Smith filed a timely notice
of appeal, and the case was docketed to the term of this Court beginning in
December 2021 and orally argued on February 17, 2022.
asserts that the trial court erred in overruling his special demurrer

to the felony murder charge. He further argues that the trial court

erred in failing to grant a new trial on his claims of constitutionally

ineffective assistance of trial counsel, based on counsel’s failure to

(1) object to the verdict form and the trial court’s jury instruction on

felony murder, which Smith contends allowed the jurors to render a

potentially non-unanimous verdict; (2) file a general demurrer as to

the felony murder count; and (3) file a plea in bar on the ground that

Smith was not re-tried within the time period required by his

statutory speedy trial demand. We affirm for the reasons discussed

below.

     The evidence presented at trial showed that on or about June

22, 2011, Smith sold Walden $30 worth of crack cocaine and a pack

of cigarettes “on credit.” Two days later, on the night of June 24,

Demarcus Dontravious Lewis was riding with Smith and Calvin

Sharmond Brooks when Smith told the others that he was going to

collect the money Walden owed him. Lewis said that the three drove

to Melissa Moncrief’s house to find Walden, and Smith knocked on

                                   2
the door. Walden was at Moncrief’s house, and when Smith asked

for his money, Walden said he did not have it. Smith left briefly but

then returned and knocked again. Walden again said he did not have

the money and shut the door. Lewis said that Smith went to the side

of Moncrief’s house and grabbed a board with nails in it on his way

to Moncrief’s back door.

     As Smith entered Moncrief’s house carrying the board, Walden

ran out the front door and down an alley beside the house. Brooks

and Lewis pursued Walden. When they caught up to Walden, Lewis

hit him and knocked him down. According to Lewis, both he and

Brooks then kicked Walden. Smith arrived on the scene, and Lewis

said Smith used the board to beat Walden “from his stomach to his

head.” A witness who was in the vicinity at the time saw someone

lying in the alley with two men standing over him — Smith and a

person the witness knew as “Wocka-Flocka.”2 The witness said that

Wocka-Flocka was kicking the person on the ground, and Smith was



     2 This witness did not know Wocka-Flocka by any other name, but upon

reviewing a police photo lineup, Moncrief identified Lewis as “Wocka-Flocka.”
                                      3
beating the person with a board.

     Moncrief testified that, while inside her house, she could hear

the sounds of someone being beaten outside and told her sister to

call 911. When Moncrief went outside to check on Walden, she saw

Lewis jumping up and down on Walden in the alley. As Smith and

the others began to leave, Moncrief asked about Walden, and Smith

replied, “Oh, we just knocked that n****r out.” Smith and the others

then left Walden in the alley. Walden never regained consciousness

and later died from what the medical examiner described as

“complications of blunt force injuries of the head.”

     1. Smith first contends that the trial court erred by overruling

his special demurrer, asserting that Count 1 of the indictment

alleging felony murder was duplicitous because it was predicated on

the commission of aggravated assault “and/or” aggravated battery.

“We review [the trial court’s] ruling on [Smith’s] special demurrer

de novo to determine the legal sufficiency of the allegations in the

indictment.” Bullard v. State, 

 (2) (

)

(2019).

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     “An [indictment] is duplicitous if it joins separate and distinct

offenses in one and the same count. ‘Duplicity’ is the technical fault

in pleading of uniting two or more offenses in the same count of an

indictment.” State v. Boyer, 

 (2) (

)

(1999) (citations and punctuation omitted). However, “[t]he

longstanding rule in Georgia is that an indictment may take the

form of a single count which contains alternative allegations as to

the various ways in which the crime may have been committed.”

Dugger v. State, 

 (5) (

) (2015) (citation

and punctuation omitted). See also Morris v. State, 

(3) (b) (

) (2006) (“This court has long held that where

one offense could be committed in several ways, it is permissible to

incorporate the different ways in one count.” (punctuation omitted)

(quoting Leutner v. State, 

 (2) (

) (1975)).

     Count 1 of the indictment charged Smith with felony murder

“for that the said accused . . . while in the commission of the offense

of aggravated assault, a felony, and/or aggravated battery, a felony,

did, acting jointly and in concert with another as parties to the crime

                                  5
thereto, cause the death of Jerome Walden[.]” Smith filed a special

demurrer to the indictment, asserting that the felony murder count

was defective because it charged multiple offenses — felony murder

based on aggravated assault and felony murder based on aggravated

battery — in the same count and citing OCGA § 16-1-7 (a) (2).3 The

trial court denied the special demurrer at a subsequent hearing on

the matter.




      3 OCGA § 16-1-7 (a) provides:

            When the same conduct of an accused may establish the
      commission of more than one crime, the accused may be prosecuted
      for each crime. He may not, however, be convicted of more than
      one crime if:
                   (1) One crime is included in the other; or
                   (2) The crimes differ only in that one is defined to
            prohibit a designated kind of conduct generally and the other
            to prohibit a specific instance of such conduct.
We note that in Hall v. State, 

 (1) (

) (1999),
the Court of Appeals stated without analysis of the statutory language that
“OCGA § 16-1-7 (a) (2) prohibits multiple prosecutions, including the defect of
duplicity” and then explained the concept of duplicity by quoting from Boyer,

 (2). However, Boyer addressed whether OCGA § 16-1-7 (a) (2)
prohibited charging two different offenses based on the same transaction in
two separate counts of the indictment and concluded that such pleading was
not prohibited by the statute. We need not address the bases of the duplicity
doctrine or whether it stems from OCGA § 16-1-7 in order to resolve this
enumeration of error. See Long v. State, 

 (2) (1852) (“[T]here is
no doubt of the rule that two distinct offen[s]es cannot be joined in the same
count.”).

                                       6
     Contrary to Smith’s argument, Count 1 of the indictment

charged Smith with only one offense — the unlawful killing of

Walden during the commission of a felony in violation of OCGA § 16-

5-1 (c).4 Although it alleged alternate ways that the crime of felony

murder was committed, i.e., during the commission of aggravated

assault and/or during the commission of aggravated battery, such

an allegation is proper under Georgia law. Therefore, the trial court

correctly determined that Count 1 was not subject to a special

demurrer on the ground of duplicity. See Lumpkins v. State, 

 (1) (

) (1994) (recognizing that it is permissible

to charge felony murder in one count of an indictment, “which

alternatively alleged the underlying felonies”). Cf. Leutner, 

 (2) (indictment not subject to special demurrer where it

incorporated elements of both malice murder and felony murder

under former 

 in one count (now codified at

OCGA § 16-5-1 (a) (malice murder) and 16-5-1 (c) (felony murder))).


     4 Under OCGA § 16-5-1 (c), “[a] person commits the offense of murder

when, in the commission of a felony, he or she causes the death of another
human being irrespective of malice.”
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     2. Smith also asserts that the trial court erred in failing to

grant a new trial based on his three claims of ineffective assistance

of trial counsel.

     To establish these claims of constitutionally ineffective

assistance of counsel, Smith must show both that his trial counsel’s

performance was deficient and that he suffered prejudice as a result.

See Strickland v. Washington, 

 (III) (

,

80 LE2d 674) (1984). “An appellant must prove both prongs of the

Strickland test, and if he fails to prove one prong, it is not incumbent

upon this Court to examine the other prong.” Winters v. State, 

 (4) (

) (2019) (citation and punctuation

omitted).

     To establish deficient performance, an appellant must
     overcome the strong presumption that his counsel’s
     conduct falls within the broad range of reasonable
     professional conduct and show that his counsel performed
     in an objectively unreasonable way in light of all the
     circumstances and prevailing norms.

Hughes v. State, 

 (2) (

) (2021)

(citation and punctuation omitted). To establish the prejudice prong,


                                   8
Smith must show “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 

 (III) (B).

     (a) Smith asserts that his trial counsel’s performance was

deficient because he failed to object to the trial court’s jury

instruction on the charge of felony murder and to the general verdict

form provided to the jury, which he contends allowed the jury to

return a potentially non-unanimous verdict on felony murder. See

Ramos v. Louisiana, __ U.S. __ (

, 206 LE2d 583)

(2020) (holding that the jury unanimity requirement under the

Sixth Amendment to the United States Constitution applies to state

and federal criminal trials equally); Richardson v. United States,

 (II) (B) (

, 143 LE2d 985) (1999)

(holding that the jury must agree unanimously about which specific

violations made up “the continuing series of violations” required for

conviction under former 

 (a) based on a statute-specific

analysis of the unanimity requirement).

     Smith contends that his trial counsel should have objected to

                                  9
the following portion of the trial court’s final instruction to the jury:

           If you find and believe beyond a reasonable doubt
      that [the] defendant committed the homicide alleged in
      this bill of indictment at the time [the] defendant was
      engaged in the commission of the felony of aggravated
      assault or aggravated battery, then you would be
      authorized to find the defendant guilty of murder,
      whether the homicide was intended or not.


He further asserts that his trial counsel should have objected to the

jury’s use of a general verdict in considering the felony murder

count.5 He argues that the instruction and the verdict form allowed

the jurors to convict him of felony murder even if they were not in

unanimous agreement on the underlying felony upon which his

felony murder conviction was based. In other words, some jurors

may have found him guilty of felony murder based on aggravated

assault, while others may have found him guilty of that charge

based on aggravated battery.




      5 At the hearing on Smith’s special demurrer as to the felony murder

count, the trial court noted that any confusion as to which of the two predicate
offenses the jury found in potentially convicting Smith could be eliminated by
using a verdict form that allowed the jurors to indicate the underlying felony
upon which they relied. Nevertheless, a general verdict form was used at trial.
                                      10
     We considered a similar issue in Miller v. State, 

 (6) (

) (2002). The defendant in Miller was also

charged with felony murder based on aggravated assault and

aggravated battery and was further charged with separate counts of

aggravated battery and aggravated assault. As in this case, the trial

court charged the jury that it could find the defendant guilty of

felony murder based upon aggravated assault or based upon

aggravated battery.6 See 

 We rejected the defendant’s argument

that his felony murder conviction was deficient on the ground that

the court’s jury charge “may have led to a less than unanimous

verdict,” concluding that because the jury also convicted him of both

of the alleged underlying felonies, aggravated assault and

aggravated battery, “there [were] two independent underlying

felony convictions that sustain[ed] the felony murder conviction.” 

     Smith likewise was charged and convicted of the offenses of


     6 Although the Miller opinion does not expressly address the verdict form

used by the jury, it appears from the defendant’s argument that the verdict
form did not clarify the underlying felony upon which the felony murder
conviction was based.

                                     11
aggravated assault and aggravated battery underlying the charge of

felony murder,7 but a different jury found him guilty of those

offenses. Miller did not address such a scenario, and Smith has not

cited, and we have not found, any binding legal authority addressing

how the unanimous jury rule applies to the circumstances presented

here — when a jury was instructed that it may find a defendant

guilty of felony murder based on alternate predicate offenses, but a

prior jury determined that the defendant was guilty of those

predicate offenses. It is well settled that “[a] criminal defense

attorney does not perform deficiently when he fails to advance a

legal theory that would require an extension of existing precedents

and the adoption of an unproven theory of law.” Esprit v. State, 

 (2) (c) (

) (2019) (citation and punctuation

omitted).   Because there is no clear legal authority on how the

unanimous jury rule applies when the predicate offenses of a felony

murder count are charged in the alternative and different juries



     7 Smith has not appealed his convictions for aggravated assault and
aggravated battery.
                                  12
decide the main charge and the predicate offenses, “trial counsel’s

failure to raise a novel legal argument does not constitute ineffective

assistance of counsel.” Griffin v. State, 

 (2) (

) (2020) (citation and punctuation omitted). See also

Rhoden v. State, 

 (2) (a) (

) (2018)

(“[T]here is no requirement for an attorney to prognosticate future

law in order to render effective representation. Counsel is not

obligated to argue beyond existing precedent.” (citations and

punctuation omitted)).

     Accordingly, Smith cannot show that his trial counsel

performed deficiently in failing to raise the objections Smith now

claims counsel should have, and we conclude that the trial court

properly denied Smith’s motion for new trial on this ground.

     (b) Smith further contends that his trial counsel was ineffective

in failing to file a general demurrer to the felony murder count

because it failed to allege all the elements of the underlying

predicate offenses for that charge.

     A general demurrer challenges the legality, validity, and

                                  13
     substance of an indictment by asserting that the
     indictment is fatally defective and thus incapable of
     supporting that a crime was committed; it can be granted
     only if the defendant could admit each and every fact
     alleged in the indictment and still be innocent of any
     crime.

State v. Owens, 

 (4) (b) (

) (2021). Smith

contends that the felony murder count alleged only the elements of

misdemeanor assault and battery, and not all the elements of

aggravated assault and aggravated battery, and thus Smith could

have admitted each and every fact alleged and not be guilty of felony

murder. We disagree.

     As an initial matter, we note that Smith was originally indicted

and tried on three counts — felony murder, aggravated assault, and

aggravated battery — and Smith does not contend that the counts

charging aggravated assault and aggravated battery failed to charge

those offenses completely. However, at the retrial, after he was

convicted on the other two counts, only the felony murder count of

the indictment was presented to the jury, and that count charged

that Smith committed felony murder by causing Walden’s death


                                 14
“while in the commission of the offense of aggravated assault, a

felony, and/or aggravated battery, a felony.” See OCGA §§ 16-5-21

(b), 16-5-24 (b) (defining the crimes as felonies). Assuming without

deciding that we should focus our analysis only on the felony murder

count of the indictment under the unusual circumstances of this

case, the allegations of the indictment are sufficient to withstand a

general demurrer “because appellant cannot admit he caused the

death of the victim while in the commission of aggravated assault

[or the felony of aggravated battery] and not be guilty of the crime

[of felony murder].” Stinson v. State, 

 (2) (

) (2005) (indictment redacted to one count charging felony murder

based on “aggravated assault” without alleging the elements of that

predicate crime was not subject to general demurrer). See also Lowe

v. State, 

 (1) (

) (2003) (indictment that

merely alleged that defendant caused the victim’s death while

engaged in the commission of aggravated battery was sufficient to




                                 15
withstand a general demurrer).8

      Accordingly, because a general demurrer would have been

meritless in this case, the trial court properly found that counsel was

not ineffective in failing to make such a filing. See White v. State,

 (3) (c) (

) (2020) (“The failure to make

a meritless motion or objection does not provide a basis upon which

to find ineffective assistance of counsel.” (citation and punctuation

omitted)).

      (c) Smith next contends that his trial counsel provided

ineffective assistance by failing to move for Smith’s acquittal after

the State failed to try him on the felony murder charge within the

period authorized by the speedy trial statute for capital cases. See

OCGA § 17-7-171. Cf. OCGA § 17-7-170 (speedy trial statute for non-



      8 To the extent that Smith is claiming that the indictment presented at

the second trial was deficient because it did not contain the essential elements
of the underlying crimes of aggravated assault and aggravated battery, that
claim is in the nature of a special demurrer. See Stinson, 

 (2).
And the failure to file a special demurrer generally will not support a finding
of ineffective assistance of counsel because a defendant can be reindicted after
the grant of a special demurrer, unless there are other reasons why a further
indictment is barred. See Bighams v. State, 

 (3) (

) (2014).
                                      16
capital cases).

     Subsection (a) of OCGA § 17-7-171 sets out the requirements

for a defendant accused of a capital offense to file a valid statutory

speedy trial demand, and subsection (b) provides:

           If more than two regular terms of court are convened
     and adjourned after the term at which the demand for
     speedy trial is filed and the defendant is not given a trial,
     then the defendant shall be absolutely discharged and
     acquitted of the offense charged in the indictment,
     provided that at both terms there were juries impaneled
     and qualified to try the defendant and provided, further,
     that the defendant was present in court announcing ready
     for trial and requesting a trial on the indictment.

This Court has determined that “under the plain language of OCGA

§ 17-7-171 (b), a defendant accused of a capital offense may be

discharged and acquitted only if she is not given a trial after at least

three full terms of court have expired since the term in which her

demand was filed.” Walker v. State, 

 (2) (

) (2012) (citing statutory language requiring “more than two

regular terms” to expire before discharge and acquittal granted to

defendant). Moreover, under the language of the statute, the State

is required to try a defendant in a particular term, only if there are

                                  17
juries impaneled and qualified to try the defendant and the

defendant is “present in court announcing ready for trial” and

requesting a trial under the indictment. See Azizi v. State, 

 (

) (2001) (“OCGA § 17-7-171 sets forth strict

requirements for the assertion of speedy trial rights and stringent

adherence to those requirements is mandated.”); Henry v. James,

 (1) (a) (

) (1994) (addressing statutory

requirements); Smith v. State, 

 (1) (

)

(1991) (same).

     Smith filed his demand for speedy trial on October 17, 2011,

during the September 2011 term of the Superior Court of Dougherty

County.9 Smith was first tried from December 12 to 20, 2011, during

the next court term, the November 2011 term. Therefore, he was

given a trial during the time period prescribed by the statute.

However, as previously discussed, Smith was convicted of

aggravated assault (Count 2) and aggravated battery (Count 3) at


     9 See OCGA § 15-6-3 (15) (providing that Dougherty County terms of

court begin on the second Monday in January, March, May, July, September,
and November).
                                   18
that trial, but because the jury could not reach a verdict as to the

felony murder charge under Count 1 of the indictment, the trial

court declared a mistrial as to that count.

     “Where a defendant has filed a demand for trial, a mistrial

resulting from other than ‘inevitable accident, such as the death or

sickness of the [j]udge or one or more of the jury . . . ’ does not

constitute a trial that satisfies the State’s obligation under the

demand for trial statutes.” State v. Varner, 

 (

) (2003) (quoting Geiger v. State, 

(1858)). Thus, pursuant to Smith’s speedy trial demand, which was

filed in the September 2011 term of court, he was required to be

retried by the end of the March 2012 term of court, which was the

third full term of court after the filing of the speedy trial demand.

     However, subsequent proceedings prevented such a retrial

during the remainder of the November 2011 term and the next two

terms of court. On January 3, 2012, before the November 2011 court

term expired, Smith filed a plea in bar to prevent his retrial on the

felony murder charge. During the pendency of that motion, the State

                                  19
had no obligation to try Smith because he was not appearing in open

court announcing ready for trial, nor was he seeking a trial under

the indictment. To the contrary, he was seeking to prevent such a

trial. See Azizi, 

 (affirming denial of motion for

discharge and acquittal where defendant failed to strictly comply

with requirements to appear in open court and announce ready for

trial); Smith, 

 (1) n.3 (compliance with requirement of

being present in court and announcing ready for trial is mandatory

and can be accomplished either by defendant himself or his counsel).

Additionally, the record is silent as to whether Smith was present in

court and announced ready for trial during the holiday period

between the end of his trial on December 20, 2011, and the filing of

the plea in bar on January 3, 2012, and Smith has not pointed us to

any evidence that juries were impaneled and qualified to try Smith’s

case during that time frame. See Varner, 

 (retrial

following a mistrial only needs to occur during portions of terms in

which jurors are impaneled and qualified to hear the case).

     The trial court denied Smith’s plea in bar on February 8, 2012,

                                 20
and Smith appealed that ruling the next day. This occurred in the

January 2012 term of court. The parties do not dispute that “the

demand clock” was tolled during the pendency of the appeal. See

Henry, 

 (1) (c) (period of time within which a

defendant must be tried pursuant to speedy trial demand is tolled

while the appellate court has jurisdiction of the appeal). And this

Court has established that (1) the demand clock does not begin to

run again until the remittitur has been filed in the trial court

following the appeal and (2) the State has the remainder of the term

in which it is filed and one additional regular term in which to try

the defendant. See 

 (1) (c).

      Here, this Court affirmed the trial court’s denial of the plea in

bar on February 18, 2013, and the remittitur was filed in the trial

court on March 8, the last day of the January 2013 term of court.10

The March 2013 term began on Monday, March 11, and Smith was

tried on the felony murder charge during that term, from April 22 to



      10 In fact, the record reflects that the remittitur was not filed until 3:01

p.m. that day.
                                       21
May 2, 2013. Thus, Smith was tried during the term following the

filing of the remittitur, and no speedy trial violation occurred.

     Accordingly, the trial court correctly determined that trial

counsel was not ineffective in failing to file a meritless motion for

acquittal. See White, 

 (3) (c).

     Judgment affirmed. All the Justices concur.




                       Decided May 17, 2022.

     Murder. Dougherty Superior Court. Before Judge Lockette.

     Benjamin A. Davis, Jr., for appellant.

     Gregory W. Edwards, District Attorney, H. R. Moroz, Jeremy R.

Hager, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General,

Paula K. Smith, Senior Assistant Attorney General, Parisa F.

Sarfarazi, Assistant Attorney General, for appellee.




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