Mohamed v. State

FINAL COPY

               S19A0705. MOHAMED v. THE STATE.


      BENHAM, Justice.

      Abdullahi Mohamed was convicted of malice murder in

connection with the stabbing death of fellow inmate Johnny Lee

Johnson. Following the trial court’s denial of his motion for new

trial, Mohamed appeals, contending that the evidence is insufficient

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

instances, and that trial counsel was constitutionally ineffective.1

We affirm.




      1 In March 2012, Mohamed and two co-defendants were indicted by a

Telfair County grand jury for malice murder. At a jury trial conducted
September 4 to 5, 2013, Mohamed and co-defendant Joseph Anthony Gittens
were found guilty of malice murder, while co-defendant Henry Gipson was
acquitted. On September 5, Mohamed was sentenced to serve life in prison
with the possibility of parole to run concurrently with his existing sentence.
Gittens’ case is not part of this appeal.
       Mohamed filed a timely motion for new trial on September 11, 2013,
which he amended on November 9, 2015. After a hearing on May 10, 2018, the
trial court denied the motion as amended on August 27, 2018. On August 31,
2018, Mohamed filed a timely notice of appeal; this case was docketed to the
April 2019 term of this Court and thereafter submitted for a decision on the
briefs.
     Viewed in a light most favorable to the jury’s verdict, the

evidence presented at trial showed the following. The victim,

Mohamed, and Mohamed’s two co-defendants were all inmates in

the D-2 dormitory at Telfair State Prison. Witnesses testified at trial

that the victim was in his cell when Mohamed entered with a knife

and started a fight with the victim that carried out into the cell

block’s common area; witnesses saw stab wounds on the victim’s

chest when he exited his cell.

     When the fight moved into the common area, the victim used a

broomstick to fight with multiple men, including Mohamed. During

this time, the victim was further punched and stabbed. The victim

suffered non-fatal stab wounds to his shoulder and chest and a fatal

stab wound to the chest.

     1. Mohamed asserts that the evidence adduced at trial was

insufficient to support his conviction for malice murder and,

relatedly, that the trial court erred in denying his motion for

directed verdict. A challenge to the trial court’s denial of a motion

for a directed verdict of acquittal is subject to the same test as we

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apply to a challenge to the sufficiency of the evidence supporting an

appellant’s conviction: “whether the evidence presented at trial,

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

sufficient to authorize a rational jury to find the appellant guilty

beyond a reasonable doubt of the crimes of which he was convicted.”

Virger v. State, 

 (2) (

) (2019). See also

Jackson v. Virginia, 

 (

, 61 LE2d 560)

(1979).

     Mohamed was charged individually and as a party to the crime

of malice murder.2 OCGA § 16-2-20 (a) provides that “[e]very person

concerned in the commission of a crime is a party thereto and may

be charged with and convicted of commission of the crime.” “Whether

a person is a party to a crime may be inferred from that person’s

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

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

 (1) (

) (2018). Whether the evidence


     2 “A person commits the offense of murder when he unlawfully and with

malice aforethought, either express or implied, causes the death of another
human being.” OCGA § 16-5-1 (a).
                                    3
supports such an inference is a question for the jury. See id.

      In this case, two eyewitnesses testified that they saw Mohamed

run into the victim’s cell wielding a knife and then attack the victim.

These two witnesses also testified that, when the victim emerged

from his cell as the fight moved into the common area, the victim

had a stab wound on his side. Mohamed, with support from his

fellow aggressors, continued fighting with the victim in the common

area where Mohamed was seen stabbing the victim again. As

Mohamed notes, the evidence did not establish which attacker

inflicted the fatal wound, but that makes no difference here; his

conduct supports the jury’s conclusion that he shared an intent to

murder the victim, regardless of whether he inflicted the fatal

wound.3 See Jackson v. State, 

 (1) (

)

(2018) (“Even where it is undisputed that the victim was [fatally




      3 In a related enumeration, Mohamed contends that his trial counsel

performed deficiently in failing to present evidence showing that Mohamed did
not inflict the fatal wound. However, trial counsel cannot be considered to have
performed ineffectively where he failed to introduce evidence that would have
made no difference to the outcome of the trial. See Morris v. State, 

 (3) (

) (2008).
                                       4
wounded] by another person, every person concerned in the

commission of the crime may be convicted of the crime.”).

     The evidence recounted above was sufficient to authorize a

rational jury to find Mohamed guilty beyond a reasonable doubt of

the crime of which he was convicted, see Jackson, 

,

and, accordingly, the trial court did not err in denying Mohamed’s

motion for a directed verdict of acquittal, see Virger, 

.

     2. Mohamed asserts that the trial court erred in three respects.

We address each in turn.

     (a) Mohamed argues that the trial court erred in permitting

armed, uniformed law enforcement officers to remain around him

throughout the trial, thereby unduly prejudicing him.

     “[U]se of security measures to prevent dangerous or disruptive

behavior that threatens the conduct of a fair and safe trial is within

the trial court’s discretion.” Krause v. State, 

 (5) (

) (2010). But we need not consider whether the trial court

abused its discretion here because the record shows, and Mohamed

concedes, that he failed to object to the security measures during the

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course of the trial. “Failure to raise the issue deprives the trial court

of the opportunity to take appropriate remedial action and waives

appellate review of any alleged impropriety.” Weldon v. State, 

 (

) (2015).

     (b) Mohamed next claims that the trial court erred when it

admitted testimony regarding the presence of gangs and gang

activity at Telfair State Prison, arguing that the evidence was

irrelevant and served no purpose other than to place his character

in issue.

     As an initial matter, we note that, while co-defendant Gipson

objected to the testimony at issue, Mohamed neither joined Gipson’s

objection nor raised his own. Accordingly, his claim may be reviewed

only for plain error. See Anthony v. State, 

 (7) (

) (2018). To establish plain error, a defendant must identify

a clear and obvious legal error that he did not affirmatively waive

and demonstrate that the error affected his substantial rights. See

State v. Kelly, 

 (2) (a) (

) (2011). Where a

defendant makes such a showing, this Court is authorized to

                                   6
exercise its discretion to correct that error only where the error

seriously affected the fairness, integrity, or public reputation of

judicial proceedings. 

     During the presentation of its case-in-chief, the State

questioned three witnesses about the presence of gangs in Telfair

State Prison. First, the State asked Officer Ben Northcutt, a

corrections officer at the prison, whether he was aware of any “gangs

or groups or affiliations of different inmates” at the prison around

the time of the crime. After Northcutt testified generally about the

prison’s “gang problem,” the State asked him how to determine

whether an inmate was a member of “a group or affiliation.” At that

point, co-defendant Gipson objected on grounds of relevance, which

the trial court overruled. Northcutt then testified regarding clothing

and tattoos inmates might display and noises they might make to

indicate their affiliation with other inmates. As to specific groups

present at the prison, Northcutt identified “the Muslim guys” and

“the Christian guys.” The State next questioned inmate Thomas

Echols about his observations of “groups or affiliations or gangs” in

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the prison, and Echols identified street gangs, like the Bloods and

the Crips, as well as religious groups. Finally, inmate Rashard

Styles testified that “a lot of gangs” were present in the prison. When

Styles mentioned the Bloods and Crips, the State pressed him

further, asking about other groups of people. Styles then specifically

mentioned “the Muslims.” These three witnesses offered no

explanation as to how membership in a religious group might relate

to gang activity.4

     Presuming for the sake of argument that the admission of this

concerning evidence was error, we conclude that there is no plain

error because Mohamed has not demonstrated that this testimony

affected his substantial rights or, in other words, that it likely

affected the outcome of his trial. See Kelly, 

 (2) (a).

Notably, there was no evidence showing either that the crime was

gang-related or that the defendants were motivated to participate in




     4  During the presentation of co-defendant Gipson’s defense, Gipson
acknowledged, on cross-examination, that he, Mohamed, and Gittens were
adherents of the Muslim faith and attended the same worship services at the
prison. The record also shows that Mohamed wore a kufi during the trial.
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the crime by virtue of shared group membership. The prosecution

made no reference to such a theory either in its opening statement

or closing argument. See Peoples v. State, 

 (4) (c) (

) (2014) (improperly admitted evidence of appellant’s prior

crimes likely did not affect jury’s verdict where State did not

emphasize the evidence either in opening statement or in closing

argument and strong evidence showed appellant was, at a

minimum, guilty as a party to the crime). In light of the tenuous

connection between this evidence and Mohamed, as well as the other

strong evidence against him, we conclude that Mohamed cannot

demonstrate that the admission of this evidence likely affected the

outcome of the trial, and this claim fails. See Harris v. State, 

 (2) (

) (2018) (no plain error where evidence of

defendant’s guilt was “strong”).

     (c) In his final claim of trial court error, Mohamed contends

that the trial court erred — and, as a result, violated his

constitutional right to be present at trial — when, outside

Mohamed’s presence, it responded to questions from the jury.

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     During the jury’s deliberations, the jury submitted a note to

the trial court in which it asked to review a DVD exhibit. Several

follow-up notes were exchanged between the trial court and the jury;

in each instance, the trial court formulated its response in

consultation with the State and counsel for Mohamed and his co-

defendants but outside the presence of the defendants themselves.

Before the jury returned to the courtroom to view the exhibit,

Mohamed and his co-defendants returned to the courtroom, and

Mohamed’s trial counsel “brought him up to speed” on what had

transpired in his absence. Mohamed neither voiced an objection nor

expressed opposition to the responses given to the jury by the trial

court.

     Assuming without deciding that Mohamed had a right to be

present at these discussions, “in failing to voice any objection during

the trial proceedings to [his] absence at the bench conference,

. . . [Mohamed] clearly acquiesced in [his] trial counsel’s waiver of

[his] right to be present at that bench conference.” Williams v. State,

 (3) (

) (2016) (concluding that

                                  10
defendant acquiesced to trial counsel’s waiver of her right to be

present at a bench conference where defendant remained silent after

being informed that conference had occurred in her absence and of

the nature of the discussions). Thus, this contention is without

merit.

     3.   Mohamed asserts that he was denied the effective

assistance of trial counsel in several respects. There is no merit to

any of his claims.

     To prevail on his claim of ineffective assistance, Mohamed

must clear a high bar. He must demonstrate not only that trial

counsel’s performance was objectively deficient, but also that he was

prejudiced as a result of that deficient performance or, in other

words, that a reasonable probability exists that the trial outcome

would have been different. See Strickland v. Washington, 

 (

, 80 LE2d 674) (1984). If an appellant

fails to make one of these showings, this Court is not required to

consider the other. See Grant v. State, 

 (5) (

) (2019).

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     (a) Mohamed contends that his trial counsel was ineffective in

failing to object to the presence of armed, uniformed law

enforcement officers at trial and in failing to suggest alternative,

less visible security measures. Where an appellant contends that his

trial counsel was ineffective in failing to object to security measures

implemented at trial, relief is authorized only where the appellant

“can show that there is a reasonable probability that the [security

measures] affected the outcome of the trial.” Whatley v. Terry, 

 (V) (D) (

) (2008).

     At the hearing on Mohamed’s motion for new trial, his trial

counsel recalled that there were “over five, [but] less than ten”

armed, uniformed security officers present at trial, including both

sheriff’s deputies and Correctional Emergency Response Team

officers. The record shows that the trial court was cognizant that

security measures might affect the jury’s perception of the

defendants, as he indicated to law enforcement that the defendants,




                                  12
including Mohamed, were not to be shackled in the jury’s presence.5

And before the jury entered the courtroom on the first day of trial,

the trial court permitted the officers to spread out through the

courtroom at the request of co-defendant Gittens. Again, given the

strong evidence of his guilt, Mohamed has not demonstrated that

his trial counsel’s failure to object to these security measures

affected the jury’s verdict.6

     (b) Mohamed also argues that trial counsel’s failure to object to

testimony regarding gangs in Telfair State Prison constitutes

ineffective assistance.

     As discussed in Division 2 (b) above, there was no plain error

because Mohamed cannot demonstrate that the admission of this

testimony affected the outcome at trial. Coextensive with that

determination, he cannot demonstrate prejudice in regard to this



     5 Even so, we doubt that many jurors would think it remarkable at all to

see enhanced security measures in a case involving three inmates accused of
murder. The jury knew that the defendants were inmates, and their awareness
of that fact lessens the danger of prejudice from enhanced security.
      6 We also note that Mohamed’s co-defendant Gipson was tried under the

same security measures as was Mohamed, yet Gipson was acquitted by the
jury.
                                    13
claim. See Hampton v. State, 

 (2) (

) (2017) (“[T]his Court has equated the prejudice step of the plain

error standard with the prejudice prong for an ineffective assistance

of counsel claim.”).

     (c) Mohamed asserts that trial counsel was ineffective for

failing to ensure that Mohamed was present at all stages of the trial,

specifically at the conference discussed in Division 2 (c) above.

     When an alleged violation of the Georgia constitutional
     right to be present is raised not directly but rather as a
     claim of ineffective assistance of counsel, the defendant
     must show both that his lawyer acted deficiently in not
     asserting his right and that this deficiency caused actual
     prejudice to the outcome of his trial.

Hardy v. State, 

 (3) (

) (2019).

Assuming both that Mohamed had a right to be present at the

conference and that trial counsel was deficient in failing to assert

that right, Mohamed has not shown that his absence from the

conference caused him any prejudice at all. See 

 Thus, this claim,

like the others, fails.

     (d) Mohamed’s next claim of ineffective assistance challenges


                                  14
his trial counsel’s failure to request a separate jury instruction on

causation, again related to his repeated arguments concerning who

inflicted the fatal wound.

     In charging the jury, the trial court read the indictment, which

alleged that Mohamed and his co-defendants “individually and as

parties concerned in the commission of a crime . . . did unlawfully,

with malice aforethought, cause the death of Johnny Lee Johnson, a

human being, by stabbing [him] with a shank[.]” (Emphasis

supplied.) The indictment was later sent out with the jury by the

trial court. The trial court charged the jury that the State must

“prove every material allegation of the indictment and every

essential element of the crime charged beyond a reasonable doubt.”

Moreover, the trial court gave instructions on the malice murder

charge and on parties to a crime. Viewing the charges as a whole,

they were clearly sufficient to instruct the jury on the relevant

principles of causation. See Brown v. State, 

 (3) (a)

(

) (2015). Further, Mohamed “has not identified the

specific alternative or additional instructions he believes should

                                 15
have been requested to improve the jury’s understanding of the

concept.” 

 Accordingly, he has failed to show how he was

prejudiced as a result of counsel’s failure to request “some

unarticulated different charge.” 

 See also Benson v. State, 

 (3) (b) (

) (2014) (trial counsel not ineffective for

failing to request charge on causation because “the charge as a whole

instructed the jury that the State had to prove beyond a reasonable

doubt that [the victim] was dead and that [defendant charged with

malice murder] had caused that death by committing a criminal

act”).

         (e) Mohamed also argues that trial counsel was ineffective for

failing to adequately investigate his case and prepare for trial. But

again, Mohamed hinges this claim on trial counsel’s failure to

investigate and present evidence regarding who inflicted the fatal

wound. As we have explained throughout this opinion, whether

Mohamed was personally responsible for inflicting the fatal wound

is immaterial because he was charged as a party to the crime. See

Jackson, 

 (1) (“Even where it is undisputed that the

                                    16
victim was [fatally wounded] by another person, every person

concerned in the commission of the crime may be convicted of the

crime.”). Accordingly, Mohamed has failed to show prejudice on this

claim of ineffective assistance.

      (f)   Finally, the cumulative prejudice resulting from any

assumed deficiencies discussed in Division 3 is insufficient to show

a reasonable probability that the result at trial would have been

different in the absence of such deficiencies. See Cochran v. State,

 (2) (e) (

) (2019). We thus find no merit

in Mohamed’s claims of ineffective assistance.7

      Judgment affirmed. All the Justices concur.


                      DECIDED OCTOBER 21, 2019.
      Murder. Telfair Superior Court. Before Judge Kaufold.
      Akil K. Secret, for appellant.
      Timothy G. Vaughn, District Attorney, Keely K. Pitts, Assistant

      7 Mohamed raises allegations of prosecutorial misconduct because “the

prosecution presented its case to the jury in a manner inconsistent with the
findings in the GBI reports.” However, because Mohamed “did not raise this
claim of prosecutorial misconduct at trial, it was not preserved for appeal.”
Brooks v. State, 

 (3) (

) (2019). Further, the State
has wide latitude in determining how to present its case. “[T]here is no
requirement that [the State] prove its case with any particular sort of
evidence,” so long as the evidence presented is “competent.” Plez v. State, 

 (1) (

) (2017).
                                      17
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Matthew M. Youn, Assistant Attorney
General, for appellee.




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