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