Powell v. State

FINAL COPY

                 S19A0721. POWELL v. THE STATE.


      ELLINGTON, Justice.

      Appellant Kenneth N. Powell was tried before a Dougherty

County jury and convicted of malice murder in the shooting death of

Lionel Turner.1 Appellant contends that the evidence was

insufficient to sustain his conviction, that the trial court erred in




      1 Turner was killed on June 19, 1993. On August 26, 1993, Appellant and

Donny C. Mimbs were jointly indicted by a Dougherty County grand jury for
malice murder (Count 1), felony murder predicated on aggravated assault by
shooting Turner with a gun (Count 2), and aggravated assault by beating
Turner with a chair (Count 3). Appellant was tried separately in a November
8 to 9, 1993, jury trial. The jury found Appellant guilty of malice murder only.
On November 9, 1993, the trial court sentenced Appellant to serve life in
prison. A motion for new trial was filed by trial counsel on November 22, 1993.
Appellant, through new counsel, filed an extraordinary motion for new trial on
July 8, 1997. Appellant represented therein that, although the motion for new
trial was heard December 29, 1993, no order had been entered on the motion
because no transcript of the motion for new trial proceeding existed. Appellant
represented that the court reporter had “left the area” before transcribing the
hearing. On September 19, 1997, the trial court granted new counsel’s motion
to withdraw. More than 20 years later, on April 3, 2018, Appellant’s current
counsel was appointed by the trial court. Appellant filed an amended motion
for new trial on September 11, 2018. Following a hearing, the trial court
entered its order denying the motion for new trial on November 15, 2018.
Appellant’s timely appeal was docketed in this Court to the April 2019 term
and submitted for decision on the briefs.
instructing the jury, and that his trial counsel provided ineffective

assistance. For the reasons that follow, we find no merit in these

claims of error, and we affirm.

     Viewed in a light most favorable to the verdict, the evidence at

trial showed the following. In mid-June 1993, Appellant’s cousin,

Tony Powell (“Powell”), was allegedly assaulted by Turner and

Stephon Davis. On June 19, Appellant and Donny Mimbs walked

around their neighborhood searching for Turner and Davis. A

witness testified that Appellant had “a problem” with Turner.

Appellant was carrying a gun in his hand and looked upset.

     During their search, Appellant and Mimbs crossed paths with

Powell and two other men, who joined the group. Powell asked

Appellant to put the gun away, but Appellant refused. Appellant

told Powell that he was looking for Davis because Davis and Turner

had “jumped on” Powell.

     When the group reached Davis’s girlfriend’s house, Appellant

told a resident to tell Davis that Appellant was “going to get him”

because “it wasn’t right how [Davis] did that night when they was

                                  2
fighting.” After learning that Davis was not there, the group began

walking toward Powell’s aunt’s house. On the way, Appellant saw

Turner outside his grandmother’s house, standing on the porch.

Appellant began walking toward Turner, and Mimbs and Powell

followed.

     Turner’s grandmother, who was on the porch with Turner,

testified that she saw three men approaching “like they were mad.”

Mimbs “reached and got the gun” from Appellant and shot Turner.

Turner’s grandmother ran into her house after the first shot. She

testified that, before she fled inside, she saw that Appellant and

Powell remained on the porch steps. Once inside, she heard three

more shots.

     According to Powell, Mimbs went up onto the porch first.

Mimbs told Appellant “you ought to kill the S. O. B.,” and then

“snatch[ed]” the gun from Appellant. Mimbs shot Turner once and

then, after a struggle between the two, shot him a second time, after

which Turner collapsed. Mimbs fired a third shot at Turner’s hip

area. Appellant then took the gun back from Mimbs and shot Turner

                                 3
in the knee, after which Mimbs grabbed a chair and began hitting

Turner in the back of the head. After the shooting, according to

Powell, he and Appellant “ran off separately.”

     Another cousin of Powell’s, Larry Brown, was approximately

four houses away from the scene at the time of the shooting. He

testified that he saw Mimbs grab the gun from Appellant and fire

four shots. Brown saw Appellant “throw a chair.” Another witness

testified that, after hearing about the shooting, she accused

Appellant of shooting “that boy,” and Appellant responded, “yeah,”

adding that anyone who assaulted his cousin “needs to be dead.”

     The testimony of the pathologist who performed Turner’s

autopsy showed that Turner suffered gunshot wounds to the chest,

abdomen, right buttocks, and right knee. According to the

pathologist, Turner bled to death. The pathologist agreed on cross-

examination that the wound to Turner’s chest, which passed

through both lungs and the aorta, would have caused death within

a minute. He also testified that, in reference to the gunshot to the

knee, “[i]f it contributed at all [to Turner’s death], it was a minor

                                  4
factor.”

     1. Appellant contends that the evidence was legally insufficient

to support his malice murder conviction because Mimbs is solely

responsible for Turner’s death. Appellant argues that, while

evidence showed that he shot Turner in the knee, the knee injury

was minor and Turner was already dead because his aorta had been

severed when Mimbs shot him in the chest. Further, Appellant

argues, he did not aid or abet Mimbs, who grabbed the gun out of

Appellant’s hands and then fatally shot Turner.

     When evaluating the sufficiency of evidence, “the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 

 (III) (B) (

,

61 LE2d 560) (1979) (Emphasis omitted.). Here, the evidence is

sufficient to show that Appellant was a party to the crime of malice

murder. See OCGA § 16-5-1 (a) (“A person commits the offense of

murder when he unlawfully and with malice aforethought, either

                                  5
express or implied, causes the death of another human being.”);

OCGA § 16-2-20 (a) (“Every person concerned in the commission of

a crime is a party thereto and may be charged with and convicted of

commission of the crime.”).

     In relevant part, a person is concerned in the commission of a

crime only if he “(3) Intentionally aids or abets in the commission of

the crime; or (4) Intentionally advises, encourages, hires, counsels,

or procures another to commit the crime.” OCGA § 16-2-20 (b) (3),

(4). Further, “a conviction as a party to a crime requires proof that

the defendant shared a common criminal intent with the principal

perpetrator of the crime.” Downey v. State, 

 (1) (

) (2016) (citation and punctuation omitted). “While mere

presence at the scene of a crime is not sufficient evidence to convict

one of being a party to a crime, criminal intent may be inferred from

presence, companionship, and conduct before, during and after the

offense.” Navarrete v. State, 

 (1) (

)

(2008) (citation and punctuation omitted).

     The evidence showed that Appellant and Mimbs canvassed the

                                  6
neighborhood together in search of Turner and Davis. Appellant was

openly carrying a gun, refused to put it away, and led the group to

the porch where Turner was shot to death. Even if Mimbs took the

gun and started shooting first, Appellant took the gun back and shot

Turner as well. Appellant, who believed that Turner had previously

assaulted Powell, thereafter acknowledged that he had shot Turner

and told the witness that anyone who had assaulted his cousin

needed “to be dead.” It may be reasonably inferred from the evidence

that, even though Mimbs fired the fatal shots, the shooting was a

common enterprise between Appellant and Mimbs in which

Appellant aided Mimbs through his active participation and in

which they shared in the criminal intent to kill Turner. It follows

that a rational trier of fact could have found beyond a reasonable

doubt that Appellant was a party to the crime of malice murder. See

Powell v. State, 

 (1) (

) (2012) (evidence

was sufficient to support appellant’s murder conviction as a party to

the crime even assuming that appellant’s companion, and not the

appellant, fired the fatal shot, as they were engaged in a common

                                 7
enterprise at the time of the shooting and it could be reasonably

inferred from the evidence that they shared a criminal intent);

Teasley v. State, 

 (

) (2010) (that

appellant did not actually fire the gun that fatally wounded the

victim was immaterial to his conviction as a party to the crime of

malice murder).

      2. Appellant contends that the trial court erred in failing to

instruct the jury on (a) causation in a homicide case, (b) the

respective responsibilities of the trial court and the jury, (c)

circumstantial evidence, and (d) venue. Although Appellant

reserved the right to object to the jury instructions as was customary

at the time of his 1993 trial,2 he was not relieved from the necessity

of requesting instructions other than “in those circumstances where



      2 See White v. State, 

 (

) (1979) (Holding

that “[w]here the trial court inquires whether there was objection [to the jury
charges] and the defendant’s counsel states that he reserves the right to object
in his motion for new trial or appeal, there is no waiver.”). Because Appellant’s
trial was conducted before July 1, 2007, the trial court’s charge is not subject
to OCGA § 17-8-58, which “changed the prior practice whereby counsel could
generally reserve objections to the charge pending a motion for new trial or
appeal.” State v. Kelly, 

 (1) (

) (2011) (citation and
punctuation omitted).
                                       8
the omission is clearly harmful and erroneous as a matter of law in

that it fails to provide the jury with the proper guidelines for

determining guilt or innocence.” Johnson v. State, 

(

) (1984) (citation and punctuation omitted). See also

OCGA § 5-5-24 (b) (“In all cases, at the close of the evidence or at

such earlier time during the trial as the court reasonably directs,

any party may present to the court written requests that it instruct

the jury on the law as set forth therein. . . .”); Barrett v. State, 

 (2) (

) (2012) (while appellant reserved

objections to the charge during his trial in 2005, he was not relieved

from the necessity of requesting instructions; the trial court did not

err in omitting the unrequested charge as the omission was not

clearly harmful as a matter of law). The only charge requested in

writing by Appellant concerned mere presence at the scene of a

crime.

     (a) Appellant contends that the trial court erred in failing to

instruct the jury sua sponte on causation in a homicide case. That

standard, as Appellant correctly points out, is proximate cause. See

                                   9
State v. Jackson, 

 (2) (

) (2010).

     The indictment, which the trial court read to the jurors and

which was provided to them during their deliberations, charged

Appellant with the offense of malice murder in that he “did

unlawfully and with malice aforethought cause the death of . . .

Turner . . . by shooting [him].” The trial court instructed the jury

that “a person commits murder when that person unlawfully and

with malice aforethought . . . causes the death of another human

being.” The court also thoroughly instructed the jury on the law of

parties to a crime. Considering the charge as a whole, the jury was

informed that, in order to convict, it was required to determine that

Appellant either caused or was a party in causing Turner’s death.

As the charge did not fail to provide the jury with the proper

guidelines for determining guilt or innocence, the trial court did not

err in failing to give a separate charge on causation in a homicide

case. See Whiting v. State, 

 (2) (

)

(2015) (in the defendant’s felony murder trial, the charge as given

was sufficient to inform the jury that it was required to find that the

                                  10
defendant caused or was a party in causing the victim’s death, and

the trial court did not err in failing to instruct the jury sua sponte

on the issue of proximate causation); Flournoy v. State, 

 (3) (

) (2014) (trial court did not err in failing to

instruct the jury on proximate cause because its “instruction on

felony murder and party to a crime, which referenced the allegations

of the indictment, was sufficient to inform the jury that, in order to

convict, it had to determine [the defendant] caused or was a party in

the causing of [the victim’s] death”).

     (b) Appellant claims that the trial court erred in failing to fully

instruct the jury on the respective responsibilities of the trial court

and the jury. During its final instruction, the trial court charged,

“[n]ow, you, as the jury in this case, will determine both the law and

the facts.” Appellant argues that the instruction given was

misleading and that the trial court was obligated to fully instruct

the jury that it was bound by the court’s instructions and was

required to apply the law given by the court.

     The language charged by the trial court “was formerly in the

                                  11
Suggested Pattern Jury Instructions [and] has since been replaced.”

Hampton v. State, 

 (7) (

) (2000). See

Dasher v. State, 

 (3) (

) (1997)

(Previously, “the Pattern Jury Instructions included a charge: ‘You

will determine both the law and the facts.’ This instruction was

replaced by a more accurate and complete instruction in January

1996[.]”). The instruction given was derived from the Georgia

Constitution of 1983, Art. I, Sec. I, Par. XI (a), which provides that

“the jury shall be the judges of the law and the facts.” See Hampton,

 (7).3

      The transcript also shows that, before closing argument, the

trial court instructed the jurors to keep their “minds clear” until they

heard counsels’ arguments and “the charge of the Court, so you will

know what the appropriate law is to apply to the facts that you find



      3  See also State v. Freeman, 

 (

) (1994)
(acknowledging the “firmly established” interpretation of Ga. Const. of 1983,
Art. I, Sec. I, Par. XI (a) that: “It is the province of the court to construe the law
applicable in the trial of a criminal case, and of the jury to apply the law so
construed to the facts in evidence. While the impaneled jurors are made
absolutely and exclusively judges of the facts in the case, they are, in this sense
only, judges of the law.” (citation omitted)).
                                         12
from the testimony that was presented here.” During the final

instructions, the trial court also instructed the jury that the “court

cannot interpret the facts for you,” and that “[y]ou must make your

decision upon the facts as you find them,” but that the jury could,

during the course of deliberations, submit questions to the court

which “must concern the law that the Court has charged you on.”

The trial court’s charge, viewed as a whole, instructed the jury to

apply the law as given by the court to the facts of the case, and did

not fail to provide the jury with the proper guidelines for

determining guilt or innocence. See Wright v. State, 

(2) (c) (

) (2002) (It was not error to charge the jury:

“you will both determine the law and the facts.” (punctuation

omitted)); Hampton, 

 (7) (It was not error to charge

the jury: “You will determine both the law and the facts in this case.”

(punctuation omitted)).

     (c) Appellant contends that the trial court erred in failing to

charge the jury on circumstantial evidence. Where, as here, the

State presents both direct and circumstantial evidence, a trial court

                                  13
must instruct the jury on circumstantial evidence only if requested

by the defendant. See Sumlin v. State, 

 (3) (

) (2008); Yarn v. State, 

 (1) (

)

(1995). Appellant does not show that he requested a charge on

circumstantial evidence. Accordingly, the trial court’s failure to give

the charge was not erroneous as a matter of law, and given the

amount of direct evidence, the failure to charge on circumstantial

evidence was not clearly harmful either.

     (d) Appellant further contends that the trial court erred in

failing to charge the jury on venue. We have urged, and continue to

urge, trial courts to give appropriate charges on venue. See, e.g.,

Thompson v. Brown, 

 (

) (2011); Lynn

v. State, 

 (3) (

) (2002). However,

“where venue is proven and the trial court charges the jury generally

on the law of reasonable doubt, it is not necessary for the court to

charge the jury that proof of venue is a material allegation of the

indictment.” Shahid v. State, 

 (2) (

) (2003) (citation and punctuation omitted). Accord Harwell v.

                                  14
State, 

 (1) (

) (1973). See also Lanham v.

State, 

 (3) (

) (2012) (“[W]e have declined

to reverse a conviction and require a new trial based on the trial

court’s failure to sua sponte instruct the jury on venue.”). Here, the

State presented unrebutted evidence that Turner was shot and

killed in Dougherty County, where the case was tried. See OCGA §

17-2-2 (c) (“Criminal homicide shall be considered as having been

committed in the county in which the cause of death was inflicted. .

. .”). The trial court correctly charged the jury on reasonable doubt.

In instructing the jury on the offense of murder, the trial court

specified, among other things, that

     [i]f after considering the testimony and evidence
     presented to you, together with the charge of the Court,
     you should find and believe beyond a reasonable doubt
     that the defendant did, in Dougherty County, Georgia, on
     or about the date alleged in the indictment, commit the
     offense of murder as alleged in Count 1, then you’d be
     authorized to find the defendant guilty.

(Emphasis supplied.) Accordingly, in the absence of a request, the

trial court’s failure to charge the jury on venue was not reversible

error. See Lanham, 

 (3); Shahid, 

-544

                                 15
(2).

       3. Appellant contends that trial counsel provided ineffective

assistance in failing to request jury instructions on (i) causation in

a homicide case, (ii) the respective responsibilities of the trial court

and jury, (iii) circumstantial evidence, (iv) venue, (v) Appellant’s

failure to testify, and (vi) the lesser offense of voluntary

manslaughter. To establish ineffective assistance of counsel, a

defendant must show that his trial counsel’s performance was

professionally deficient and that, but for such deficient performance,

there is a reasonable probability that the result of the trial would

have been different. See Strickland v. Washington, 

 (

, 80 LE2d 674) (1984).

       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) (citation omitted). See also Strickland, 

-

688. This requires a defendant to overcome the strong presumption

                                  16
that trial counsel’s performance was adequate. See Marshall v.

State, 

 (2) (

) (2015). In assessing

prejudice, “[w]hen the asserted error of failure to charge is reached

indirectly through a claim of ineffective assistance of counsel the test

is whether, had the charge been requested, authorized, and given,

there is a reasonable probability it would have changed the outcome

of the trial.” Springs v. Seese, 

 (3) (

)

(2002) (citations and emphasis omitted). See also Lee v. State, 

 (3) (

) (2007) (same).

     (a) Appellant cannot show that his counsel was ineffective in

failing to request jury instructions addressing (i) causation in a

homicide case, (ii) the respective responsibilities of the trial court

and jury, (iii) circumstantial evidence, and (iv) venue. Assuming

that trial counsel was deficient in failing to request these charges,

the omission of these charges did not fail to provide the jury with the

proper guidelines for determining guilt or innocence. See Division

2, supra. Considering the jury instructions as a whole as well as the

relevant evidence, Appellant cannot show that, had the charges been

                                  17
requested, authorized, and given, there is a reasonable probability

they would have changed the outcome of the trial. See Butts v. State,

 (18) (

) (2001) (where trial court’s

instructions were adequate as given, appellant could not show

prejudice in trial counsel’s failure to request charge).

     (b) Appellant, who did not testify at trial, claims that his trial

counsel was ineffective in failing to request an instruction informing

the jury that he was not required to take the stand and testify in his

defense, and that no adverse inference shall be drawn by the jury

from his failure to testify. The evidence that Appellant was a party

to Turner’s murder was strong, and the trial court instructed the

jury on the State’s burden of proof and the presumption of innocence.

Nor does Appellant point to any improper reference by the State to

his failure to testify. Pretermitting whether trial counsel’s

performance was deficient, we conclude that Appellant cannot

establish a reasonable likelihood that his counsel’s failure to request

the charge changed the outcome of the trial. See Mitchell v. State,

 (6) (e) (

) (2007) (in the absence of a

                                  18
curative need for the charge, and in view of the overwhelming

evidence of appellant’s guilt, appellant was not prejudiced by his

counsel’s failure to request a charge on a defendant’s right not to

testify).

      (c) Appellant also contends that his trial counsel was deficient

in failing to request a jury charge on the lesser offense of voluntary

manslaughter. See OCGA § 16-5-2 (a).4 The evidence showed that

Appellant was angry at Turner because of a fight involving Turner,

Davis, and Powell that occurred several days before the shooting.

However, that prior altercation would not support a charge on

voluntary manslaughter. See Smith v. State, 

 (3)

(

) (2015) (Where prior altercation and fighting



      4 OCGA § 16-5-2 (a) provides:

             A person commits the offense of voluntary manslaughter
      when he causes the death of another human being under
      circumstances which would otherwise be murder and if he acts
      solely as the result of a sudden, violent, and irresistible passion
      resulting from serious provocation sufficient to excite such passion
      in a reasonable person; however, if there should have been an
      interval between the provocation and the killing sufficient for the
      voice of reason and humanity to be heard, of which the jury in all
      cases shall be the judge, the killing shall be attributed to deliberate
      revenge and be punished as murder.
                                        19
involving defendant’s relatives occurred some 30 to 40 minutes

before defendant arrived at the scene of the shooting, the evidence

did not support a charge on voluntary manslaughter.). There is no

evidence that Appellant, upon his arrival at Turner’s grandmother’s

house, was provoked by Turner. Appellant argues that he was

nevertheless overwhelmed by the circumstances in that Mimbs

snatched his gun, and he saw Mimbs shoot Turner and hit Turner

with a chair. However, those are not circumstances that “would have

provoked a reasonable person to kill” Turner. Rigsby v. State, 

 (3) (

) (2019) (citations omitted; emphasis in

original). See also Bailey v. State, 

 (IV) (

) (2017) (we “evaluate the alleged provocation evidence with

respect to its impact on a reasonable person, putting aside any

peculiar response [the defendant] may have had”). Trial counsel was

not deficient for failing to request a charge on voluntary

manslaughter because there was no evidence to support the charge.

See Bryson v. Jackson, 

 (2) (d) (

) (2016)

(trial counsel was not ineffective in failing to request a charge on

                                20
voluntary manslaughter where the charge was not supported by the

evidence).

     (d) The effect of prejudice arising from trial counsel’s deficient

performance is viewed cumulatively. Schofield v. Holsey, 

 (II) n.1 (

) (2007) (“[I]t is the prejudice arising

from ‘counsel’s errors’ that is constitutionally relevant, not that each

individual error by counsel should be considered in a vacuum.”

(citation and punctuation omitted)). For the reasons stated in

Division 3 (c), trial counsel was not deficient in failing to request a

charge on voluntary manslaughter. Assuming that trial counsel was

deficient in failing to request the jury charges addressed in Divisions

3 (a) and (b), the cumulative prejudice from the assumed deficiencies

is insufficient to show a reasonable probability that the result of the

trial would have been different in the absence of the alleged

deficiencies.

     Judgment affirmed. All the Justices concur.




                                  21
     PETERSON, Justice, concurring.

     The Georgia Constitution has long provided that “the jury shall

be the judges of the law and the facts.” Ga. Const. of 1983, Art. I,



                                22
Sec. I, Par. XI (a).5 Division 2 (b) of today’s opinion essentially

concludes that it was harmless to instruct a jury in this

constitutional language because the rest of the jury instructions

made it sufficiently clear that the Constitution’s language does not

mean what it appears to say. This seems strange.

      But the Court’s opinion is a faithful application of case law that

has been consistent since at least 1940. See, e.g., Harris v. State, 

 (

) (1940) (overruling inconsistent

opinions that interpreted the provision more broadly). And no party

has challenged that precedent as failing to apply the original public

meaning of the Georgia Constitution, much less explained whether

the principles that guide our constitutional interpretation would

even allow such a challenge at this late date. Compare Elliott v.


      5 A version of this provision was in our first Constitution, a statute
enacted in 1816, and then every Constitution since 1868. See Ga. Const. of
1777, Art. XLI (“The jury shall be judges of law, as well as of fact . . . but if all,
or any of the jury, have any doubts concerning points of law, they shall apply
to the bench, who shall each of them in rotation give their opinion.”); Acts of
the General Assembly of the State of Georgia, passed in November and
December, 1816, Vol. 1, 195; Ga. L. 1833, p. 207 § 16; Ga. Const. of 1868, Art.
I, Sec. 19 (applying only to libel); Ga. Const. of 1877, Art. I, Sec. II, Par. I
(applying to all criminal cases); Ga. Const. of 1945, Art. I, Sec. II, Par. I (same);
Ga. Const. of 1976, Art. I, Sec. I, Par. VIII (same).
                                         23
State, 

, 182-184 (II) (A) (

) (2019)

(constitutional provision carried forward from previous Constitution

presumed to carry with it the provision’s original public meaning)

with id. at 184-187 (II) (B) (constitutional provision carried forward

from previous Constitution presumed to carry with it our consistent

and definitive interpretation). Accordingly, I join the Court’s opinion

in full.




                   DECIDED OCTOBER 21, 2019.
     Murder. Dougherty Superior Court. Before Judge Lockette.
     Troy E. Golden, for appellant.
     Gregory W. Edwards, District Attorney; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney

                                  24
General, Paula K. Smith, Senior Assistant Attorney General,
Elizabeth H. Brock, Assistant Attorney General, for appellee.




                             25