Reed v. State

FINAL COPY

                    S19A1342. REED v. THE STATE.


      NAHMIAS, Presiding Justice.

      Appellant Hentrez Reed was convicted of malice murder and

other crimes in connection with the shooting death of Nigel James.

On appeal, he contends that his trial counsel provided ineffective

assistance in three ways: (1) by not filing a motion to suppress

inculpatory statements Appellant made during his interview by the

police; (2) by not filing a motion to suppress his historical cell site

location information; and (3) by not objecting to the admission of

testimony regarding an “affidavit” he wrote and the admission of an

accompanying note written by a co-defendant. We affirm.1


      1 James was killed on September 1, 2015. On December 4, 2015, a
Newton County grand jury indicted Appellant for malice murder, two counts
of felony murder, criminal attempt to commit armed robbery, aggravated
assault, possession of cocaine with intent to distribute, theft by receiving stolen
property (a 9mm handgun), and possession of a firearm during the commission
of a felony. Curtis McCammon and Areon Clemons were each separately
indicted for similar crimes except the cocaine and theft charges. Clemons
entered negotiated guilty pleas and testified for the State at the joint trial of
Appellant and McCammon, which began on March 20, 2017. On March 22, the
      1. As described in our opinion affirming the convictions of

Appellant’s co-defendant Curtis McCammon, when viewed in the

light most favorable to the verdicts, the evidence presented at their

joint trial showed the following:2

           According to Areon Clemons, on the afternoon of
      September 1, 2015, McCammon called Clemons to ask for
      a ride. McCammon and Clemons had been friends for
      about six months, during which the two men would
      “[s]moke weed, play basketball together, [and] burglarize
      houses.” McCammon had just stolen some televisions and
      needed help transporting them. Clemons drove to meet
      McCammon in the Ellington residential community in
      Covington, and McCammon told him that Nigel James
      was coming to meet them to buy the stolen televisions.
      After James left the community with two televisions,
      McCammon and Clemons went to buy marijuana from a
      drug dealer they knew as “Dizzy.” That evening, James


jury found them guilty on all counts. The trial court sentenced Appellant to
serve life in prison for malice murder and consecutive terms of 15 years for
attempted armed robbery, 10 years for the cocaine offense, 10 years for theft,
and five years for the firearm offense. The felony murder counts were vacated,
and the aggravated assault count merged. Appellant filed a timely motion for
new trial through his trial counsel, which he amended twice through new
counsel and one more time with his current counsel. After a hearing on October
23, 2018, the trial court denied the motion on March 12, 2019. Appellant then
filed a timely notice of appeal, and the case was docketed in this Court for the
August 2019 term and orally argued on October 22, 2019.
       2 Because Reed rather than McCammon is now the appellant at issue,

throughout this quoted passage the original “Reed” has been changed to
“Appellant,” and “Appellant” has been changed to “McCammon.” These
changes are not indicated with brackets.

                                       2
     called McCammon to say that he wanted some money
     back because one television was not the right size, and
     they agreed to meet at the community’s pool house.[3]
          On the way there in Clemons’s car, McCammon told
     Clemons that he wanted to rob and kill James.
     McCammon had seen James with cash when James paid
     for the televisions earlier that day. McCammon told
     Clemons to stop at Appellant’s house on the west side of
     the Ellington community so McCammon could get a gun.
     Appellant was using drugs when they arrived. Appellant
     then joined McCammon and Clemons, and Clemons drove
     to a street near the pool house, where they parked. The
     three men walked to the rear of the pool house to wait for
     James. As they waited, Appellant showed McCammon
     how to use the gun and told him not to be scared. When
     James arrived, Clemons ran back to his car as
     McCammon and Appellant walked toward James’s car;
     the gun was in McCammon’s hand. As Clemons ran, he
     heard several gunshots. McCammon and Appellant then
     returned to Clemons’s car; they apparently had not taken
     anything from James. As Clemons drove away,
     McCammon and Appellant said that they wanted to go
     rob Dizzy (the drug dealer) because they believed Dizzy
     would have cash they could steal. Clemons refused,
     however, and instead he dropped off McCammon and
     Appellant at Appellant’s house and left.

          James had been shot several times, but he managed
     to drive away from the pool house area toward the east
     side of the community. Minutes later, a teenager called

     3 James’s   girlfriend testified that James told her that he bought the
televisions from his friends “over in the Ellingtons.” She did not know their
real names. She said that when James realized that one of the televisions was
too small, he told her that he was going back to meet with his friends to
exchange it or get his money back.
                                     3
911 to report that a man was yelling for help, saying he
had been shot, and banging on the front door of the
teenager’s home and neighbors’ homes. Responding
officers found James lying in the grass with a garden hose
running water over his bleeding wounds. His car was
stopped in the middle of the street with the engine still
running; the car had blood and bullet holes in it. James
told the officers that he had been shot near the bridge and
the lake, which were next to the pool house. He asked the
officers for his cell phone, indicating that it would have
information about the shooter on it, but the officers could
not find the cell phone at that time. James was taken to a
hospital, but soon died. The police found about $1,300 in
cash in James’s belongings at the hospital.
      Eight days later, police officers arrested McCammon
and Clemons as they were driving away from a house that
they had just burglarized. In an interview with the police,
McCammon admitted that he had sold stolen televisions
to James and that James had called him later that day to
get a refund for the television that was too small. After
telling the police a variety of stories, Clemons confessed
to his, Appellant’s, and McCammon’s involvement in the
murder.
      [About two weeks after the murder, detectives
interviewed Appellant at the police station. He denied any
knowledge of the murder and claimed that he was not
home that evening but instead was in Riverdale,
approximately 20 to 30 miles away from the Ellington
community. He also initially denied knowing anything
about the gun used in the murder. Eventually, however,
Appellant admitted knowing where the gun was located.
He then took the detectives to his brother’s home to
retrieve the gun – a .45-caliber pistol – which he had
hidden behind a washing machine. Appellant also
admitted buying a 9mm handgun that he knew was

                            4
     stolen. The same day Appellant was interviewed, the
     police searched his home and car. They found the stolen
     9mm handgun, cocaine, baggies, a baggie sealer, and a
     scale.]
            According to Clemons, he and McCammon were in
     jail in adjoining cells and were talking when McCammon
     slid a one-page, handwritten document under the door to
     Clemons. On the front of the document was an affidavit
     stating (falsely) that Clemons had stolen the murder
     weapon from Appellant’s house without Appellant’s
     knowledge. On the back was a note indicating that
     Appellant wanted McCammon to sign the affidavit, but
     that McCammon was not going to do that. Clemons
     believed that Appellant wrote the affidavit and that
     McCammon wrote the note on the back.[4] Clemons later

     4 The document was admitted into evidence at trial. At trial, Clemons,

whose nickname is “Too Tall,” read the affidavit on the front of the document
aloud for the jury as follows:
      [Y]our first and last name hereby does [s]tate the following: I . . .
      went to Mrs. Bennett’s house, [Appellant’s] mom, to sell a flat-
      screen TV. [Appellant] opened the garage to take a look at the TV
      and see if it was working. So me and Too Tall put the TVs in the
      garage. After looking at the flat-screen, [Appellant] went back into
      his mom’s house[.] I noticed that Too Tall was going through bags
      and boxes inside the garage while [Appellant] was in the house.
      After we left is when I noticed that Too Tall had taken the gun
      from the garage. At no time did [Appellant] know that Too Tall had
      took a firearm and neither did I mention anything to [Appellant]
      about the firearm. A week or so after we had seen [Appellant], he,
      [Appellant], called looking for a firearm and that’s when I told him
      . . . Too Tall had it and that I would . . . get it back from him. I
      called and asked [Appellant] for his whereabouts. I took the
      firearm . . . back to [Appellant]. At no time did [Appellant] know
      anything about the firearm was in the crime. Neither did
      [Appellant] know that Too Tall had taken the firearm from the
      garage only until he called and ask[ed] did we have it is when I

                                     5
     entered a negotiated guilty plea to conspiracy to commit
     murder, attempted armed robbery, aggravated assault,
     and a gun crime, for which he was sentenced to serve a
     total of 10 years in prison followed by 25 years on
     probation. In exchange, Clemons testified for the State at
     McCammon’s and Appellant’s joint trial.
          At the trial, the medical examiner who performed
     James’s autopsy testified that James suffered five
     gunshot wounds — four to the left side of his torso and
     one to his right leg. Two of the wounds to his lower torso
     caused severe and ultimately fatal internal bleeding.
     Bullets recovered from James’s body and from the crime
     scene matched the [.45-caliber] gun that Appellant had
     hidden at his brother’s house. Cell phone records showed
     that McCammon’s and James’s phones called each other
     three times just minutes before the murder, that
     McCammon’s and Appellant’s phones were in the
     Ellington community area at the time of the murder, and
     that — although McCammon and Appellant had no phone
     contact in the 11 days before the murder — McCammon’s
     phone communicated with Appellant’s phone 36 times
     throughout the eight days between the murder and
     McCammon’s arrest.
          Appellant did not testify.

McCammon v. State, 

 (

) (2019)



       told him Too Tall had taken it and I would get [it] back from him.
       . . . [U]nder penalty of perjury the foregoing is true and correct to
       the best of my knowledge.
       The note on the back of the document, which Clemons also read to the
jury, says: “This what [Appellant] wanted me to write about you but I’m not
gonna do it, I f**k with you bruh. What you gonna do about your statement[?]
I’m thinking about going to trial[;] what you thinking about doing? Write me
back whenever you can[.]”
                                     6
(bracketed paragraph added to include evidence specific to

Appellant).

     Appellant does not dispute the legal sufficiency of the evidence

supporting his convictions. Nevertheless, as is this Court’s practice

in murder cases, we have reviewed the record and conclude that,

when viewed in the light most favorable to the verdicts, the evidence

presented at trial and summarized above was sufficient to authorize

a rational jury to find Appellant guilty beyond a reasonable doubt of

the crimes of which he was convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979); McCammon, 

. See also Vega v. State, 

 (

)

(2009) (“‘It was for the jury to determine the credibility of the

witnesses and to resolve any conflicts or inconsistencies in the

evidence.’” (citation omitted)).

     2. Appellant contends that his trial counsel provided ineffective

assistance in three ways. To prevail on these claims, Appellant must

prove that his counsel’s performance was professionally deficient

and that he was prejudiced as a result. See Strickland v.

                                   7
Washington, 

 (

, 80 LE2d 674) (1984).

To establish deficient performance, Appellant must show that

counsel performed his duties in an objectively unreasonable way,

considering all the circumstances and in the light of prevailing

professional norms. See 

; Davis v. State, 

 (

) (2016). “‘[A] fair assessment of attorney

performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.’” Stripling v. State, 

 (

) (2018) (citation omitted). To establish prejudice,

Appellant must show “a reasonable probability that, but for

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

have been different.” Strickland, 

. “We need not

review both elements of this test if the appellant fails to prove one

of them.” Stripling, 

.

     (a) Appellant first argues that his trial counsel provided

ineffective assistance by failing to file a motion to suppress his

                                  8
statements that led the police to the murder weapon. Appellant

asserts that his incriminating statements during his police

interview were involuntary and inadmissible under OCGA § 24-8-

824 because they were induced by a “hope of benefit,” namely,

promises by the detectives that he would not be charged with

murder. The record does not support this assertion.

      At the outset of the interview, which occurred at the police

station, Appellant was advised of and waived his rights under

Miranda v. Arizona, 

 (

, 16 LE2d

694) (1966), both orally and on a written form.5 Appellant denied any

knowledge of the murder and initially denied knowledge of the

murder weapon. After further questioning by the detectives,

Appellant claimed that McCammon had stolen a pistol from his

garage and that he did not know where the pistol was located. The

detectives then repeatedly encouraged Appellant to tell the truth

and to lead them to the murder weapon, saying that they could then


      5 The interview was audio-recorded, and the recording is in the record.

At trial, however, the recording was not admitted into evidence or played for
the jury; instead, a detective testified about some of Appellant’s statements.
                                      9
test the gun to prove who pulled the trigger and whether Appellant

was involved beyond his claim that the pistol had been stolen. They

told Appellant several times that they could place him at the scene

of the murder. A detective later said: “You need to help yourself limit

the problems that are facing you, right at you. Cause it’s facing you

right now. You’re looking at a murder charge.” Several minutes

later, one detective told Appellant: “Nothing else is going to help. If

[the lead detective is] fixing to take murder charges on you right now

. . . .” Later, the detectives indicated that they were ending the

interview, telling Appellant, “Malice murder. Armed robbery. You’re

going for all that.” After some more back and forth about the pistol,

Appellant admitted knowing its location, and he later led the

detectives to it at his brother’s home.

     For a confession to be admissible under Georgia law, “it shall

have been made voluntarily, without being induced by another by

the slightest hope of benefit or remotest fear of injury.” OCGA § 24-




                                  10
8-824.6 “It has long been understood that ‘slightest hope of benefit’

refers to promises related to reduced criminal punishment — a

shorter sentence, lesser charges, or no charges at all.” Budhani v.

State, 

 (

) (2019) (citation and

punctuation omitted). By contrast, exhortations or encouragement

to tell the truth and comments conveying the seriousness of a

suspect’s situation do not render his subsequent statements

involuntary. See, e.g., Johnson v. State, 

 (

) (2014) (holding that the interviewing detective’s warning

that he “can get up and walk out this door and send your a** to the

county jail and change this charge from aggravated assault to a

f**ing murder charge” was not an impermissible hope of benefit but

rather “a true statement that emphasized the gravity of the

situation [the suspect] faced”); Rogers v. State, 

(

) (2011) (holding that the interviewing officer’s


     6 This provision in the current Evidence Code tracks the language of

former OCGA § 24-3-50, and there is no counterpart in the Federal Rules of
Evidence. We therefore may rely on our precedents applying both the old and
the current statute. See State v. Chulpayev, 

 (

)
(2015).
                                    11
statement that the suspect should “help [him]self” was an

encouragement to tell the truth and not an impermissible hope of

benefit); Preston v. State, 

 (

) (2007)

(holding that the interviewing officer’s discussion of the death

penalty and life without parole “amounted to no more than an

explanation of the seriousness of [the suspect’s] situation”); Pittman

v. State, 

 (

) (2004) (holding that the

interviewing detective’s urging the suspect to tell the truth so that

the detective could work with his information and try to help him

was not an impermissible hope of benefit).

     Considered in the context of Appellant’s interview, the

detectives’ references to murder charges were explanations to

Appellant of the seriousness of his situation. The detectives never

promised Appellant that he would not be charged with murder if he

helped them locate the murder weapon, nor did they say that

Appellant would not be charged if they found other evidence

implicating him in James’s murder. Instead, they indicated that if

the gun was recovered, forensic testing could determine who pulled

                                 12
the trigger and that Appellant might thus “help [him]self” to show

that he was not the shooter. See, e.g., Johnson, 

 (“At

no time did [the detective] indicate that a confession would result in

lesser charges; rather, he merely suggested that [the suspect] would

be well served by offering his version of events as a means of

justifying or mitigating his role in the assaults.”). Thus, Appellant’s

statements leading the detectives to the murder weapon were not

induced by a hope of benefit in violation of OCGA § 24-8-824; a

motion to suppress on that ground would have been properly denied;

and Appellant’s trial counsel did not perform deficiently by failing

to make that meritless motion. See Hampton v. State, 

 (

) (2014) (“[T]he failure to make a meritless motion

or objection does not provide a basis upon which to find ineffective

assistance of counsel.”).

     (b) Appellant next argues that his trial counsel provided

ineffective assistance by failing to file a motion to suppress his

historical cell site location information (“CSLI”) — evidence that put

his cell phone in the area of the Ellington community at the time of

                                  13
the murder and thus undermined his claim to the police that he was

in Riverdale at that time. Appellant contends that because the police

obtained 32 days of his CSLI from his wireless carrier using a

subpoena rather than a court order or a search warrant, that

evidence should have been suppressed. Again, however, Appellant

has not shown that his counsel’s performance was deficient.

     Appellant’s argument that his CSLI was obtained illegally

because the police used a subpoena rather than a court order is

contradicted by the record, which shows that the police did use a

court order to obtain the CSLI. As for the need to use a search

warrant instead, in June 2018, the United States Supreme Court

held in Carpenter v. United States, __ U.S. __ (

, 201

LE2d 507) (2018), that under the Fourth Amendment to the United

States Constitution, law enforcement officers generally must obtain

a search warrant supported by probable cause before acquiring CSLI

from a wireless carrier, at least if the CSLI is for seven days or more.

See 

 & n.3, 2222-2223.

     Carpenter was decided more than a year after Appellant’s trial,

                                  14
however, and

     [i]n making litigation decisions, there is no general duty
     on the part of defense counsel to anticipate changes in
     the law, and only in a rare case would it
     be ineffective assistance by a trial attorney not to make
     an objection that would be overruled under prevailing
     law. Although this Court has held that a new decision
     applies to the admission of evidence in cases pending on
     direct review at the time that opinion was issued, that
     does not alter the long-standing precedent that, when
     addressing a claim of ineffectiveness of counsel, the
     reasonableness of counsel’s conduct is examined from
     counsel’s perspective at the time of trial. Thus, a new
     decision does not apply in a manner that would require
     counsel to argue beyond existing precedent and anticipate
     the substance of the opinion before it was issued.

Walker v. State, 

 (

) (2019) (citation

and punctuation omitted). At the time of Appellant’s trial, Georgia

appellate precedent held that a search warrant was not required to

obtain CSLI. See Smarr v. State, 

 (

) (2012). Some federal appellate courts, including the Eleventh

Circuit, held the same. See, e.g., United States v. Davis, 

 (11th Cir. 2015) (en banc). Appellant’s trial counsel was not

deficient (and thus was not ineffective) for failing to predict the 5-4

decision in Carpenter. See Walker, 

.

                                  15
     (c) Finally, Appellant argues that his trial counsel provided

ineffective assistance by not objecting to the admission of the

“affidavit” document and Clemons’s testimony about it. Appellant

contends that this evidence should have been excluded because it

was inadmissible hearsay and that the admission of the document

also violated the Confrontation Clause of the Sixth Amendment to

the United States Constitution.

     To begin with, Clemons’s testimony in court about the

circumstances in which McCammon gave him the document and

about his belief that Appellant wrote the affidavit and McCammon

wrote the note on the back was not hearsay. Although Clemons

explained that he was “talk[ing] to [McCammon] through the [jail

cell] door” when McCammon slid the document under the door,

Clemons did not testify about anything McCammon said to him. Nor

did Clemons indicate that he relied on anything McCammon said

when McCammon passed him the document as the reason for his

belief that Appellant wrote the affidavit and McCammon wrote the

note. See McCammon, 

 (“[E]ven if Clemons was not

                                  16
familiar with [McCammon’s] handwriting, the references in the

document and the circumstances in which Clemons received it

authorized the court to find that the State had properly

authenticated the note.”). See also Brown v. State, 

 (

) (2015).7

     As for the affidavit written by Appellant, it was hearsay, but it

was nevertheless admissible as an admission by a party-opponent.

See OCGA § 24-8-801 (d) (2) (A) (“Admissions shall not be excluded

by the hearsay rule. An admission is a statement offered against a

party which is . . . [t]he party’s own statement . . . .”). And such an

admission by a defendant generally is not subject to the

Confrontation Clause. See United States v. Carr, 

 (11th Cir. 2015) (“A defendant’s own statements . . . do not

implicate the Confrontation Clause and are admissible under Rule

801 (d) (2) (A) of the Federal Rules of Evidence, as admissions by a

party-opponent.”); United States v. Tolliver, 

 (7th



     7 Unlike McCammon, Appellant does not enumerate any error regarding

the authentication of the document.
                                      17
Cir. 2006) (holding that admissions by a party-opponent are not

subject to the Confrontation Clause because they are excluded from

the hearsay rule).8 See also Artem M. Joukov, Isn’t That Hearsay

Anyway? How the Federal Hearsay Rule Can Serve as a Map to the

Confrontation Clause, 

, 350-351 (2018) (“It

would be counter-intuitive for the Confrontation Clause to exclude

[a defendant’s own prior communications], since any objection to the

introduction of a defendant’s confession under this clause would be

the equivalent of a defendant demanding to confront himself or

herself.”). Thus, a hearsay or Confrontation Clause objection to the

admission of the affidavit would have been meritless, and counsel

did not perform deficiently by not making such an objection. See



      8 The Federal Rules of Evidence refer to admissions by a party-opponent

as “not hearsay,” see Fed. R. Evid. 801 (d), while the Georgia Evidence Code
refers to such admissions as an “exclusion[ ]” from the hearsay rule. See OCGA
§ 24-8-801 (d). This is a distinction without a difference. See Paul S. Milich,
Georgia Rules of Evidence, § 18:3 n.5 (2019-2020 ed.) (explaining that the
federal rules label admissions by a party-opponent as “not hearsay” for mostly
academic reasons, and that the Georgia Evidence Code “avoid[s] any confusion
by simply treating admissions as exceptions to the hearsay rule”). Because
OCGA § 24-8-801 (d) (2) (A) is essentially identical to its federal counterpart,
we look to decisions of the federal appellate courts for guidance in its
application. See Kemp v. State, 

, 392 n.6 (

) (2018).
                                      18
Hampton, 295 Ga. at 670.

     A Confrontation Clause objection to the note written by

McCammon on the back of the document would have been equally

meritless. “The admission of an out-of-court statement into evidence

at a criminal trial comes within the scope of the Confrontation

Clause only if the statement was ‘testimonial.’” Billings v. State, 

 (

) (2013) (citations omitted). “A statement

is testimonial if its primary purpose was to establish evidence for

use in a future prosecution.” Allen v. State, 

 (

) (2017). McCammon wrote the note to inform Clemons

that Appellant was unsuccessfully trying to have McCammon adopt

the affidavit and to ask what Clemons was doing about his own

statement and whether he was going to trial. The note was not

intended for use in a future prosecution, so it was not testimonial,

and trial counsel’s failure to object to its admission as a violation of

the Confrontation Clause was not deficient. See Hampton, 

.

     The only remaining question is whether Appellant’s trial

                                  19
counsel was ineffective for not objecting to the note as hearsay.

Pretermitting whether such an objection would have succeeded, the

admission of the note was not prejudicial. For the most part, the note

was a communication from McCammon to Clemons regarding their

own statements and trials. The note also may have suggested that

the affidavit that Appellant drafted was untrue, but it did not say

that explicitly, and McCammon may have had other reasons for

telling Clemons that he would not say what was in the affidavit. In

any event, the main evidence of the affidavit’s lack of veracity came

from Clemons’s testimony about the events surrounding the murder

and from the other evidence of Appellant’s guilt, including the false

alibi he gave the police, his connection to the murder weapon, and

the cell phone records. Under these circumstances, we cannot say

that the admission of the note alone, even if erroneous, causes us to

lack confidence in the outcome of the trial. See Strickland, 

.

     Judgment affirmed. All the Justices concur.



                                 20
                    DECIDED DECEMBER 23, 2019.
     Murder. Newton Superior Court. Before Judge Ott.
     Brian Steel, for appellant.
     Layla H. Zon, District Attorney, Amber R. Bennett, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Katherine D. Emerson, Assistant
Attorney General, for appellee.




                                 21