Gill v. State ( 2014 )

In the Supreme Court of Georgia
Decided: September 22, 2014
S14A0962. GILL v. THE STATE.
BENHAM, Justice.
Appellant Ahmad Rashad Gill was convicted of malice murder and other
related crimes involving the shooting of a security guard working at a strip club
in the early morning hours of November 21, 2010.1 He appeals, alleging the
evidence was insufficient to support his convictions and alleging he was denied
effective assistance of trial counsel. For the reasons set forth herein, we affirm.
Viewed in the light most favorable to the verdict, the trial evidence
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The crimes occurred on November 21, 2010. On February 22, 2011, a DeKalb County
grand jury returned an indictment charging appellant with malice murder, felony murder (aggravated
assault), aggravated assault of victim Christopher Long, possession of a firearm during the
commission of a felony, and four additional counts of aggravated assault upon other victims.
Appellant was tried December 5-9, 2011. The trial court granted a directed verdict on the aggravated
assault counts relating to victims Marc Koger and Ashley Black. The aggravated assault counts
relating to victims Sabrina Feldner and Leah Holmes were disposed of by order of nolle prosequi.
A jury found appellant guilty on all remaining counts. The conviction for felony murder was vacated
as a matter of law and the conviction for the aggravated assault of Christopher Long merged with
the murder conviction, and appellant was sentenced to life imprisonment as to the murder conviction,
and five years to serve consecutively for the possession of a firearm conviction. Appellant filed a
timely motion for new trial which was later amended. After an evidentiary hearing on July 5, 2013,
the trial court denied appellant’s motion for new trial by order dated August 5, 2013. Appellant filed
a timely notice of appeal on August 13, 2013, and the case was docketed in this Court to the April
2014 term for a decision to be made on the briefs.
showed Gill and two friends visited the club earlier in the evening, and security
guards asked the men to leave because Gill was inappropriately touching the
dancers. Gill became irate at being asked to leave, a commotion ensued, and the
manager became involved. After a short scuffle, Gill was removed. Once he
was outside, the scuffle continued and Gill stated he would return and made
death threats to the security guards and manager. Gill returned to his
girlfriend’s mother’s house where he was living and where several others were
staying that night, put on a “hoodie”-type jacket, and retrieved a handgun.
About an hour after leaving the club, Gill returned, driving his girlfriend’s
mother’s green SUV. He walked inside, pulled out a gun, and fired eight shots
at guard Christopher Long who died on the premises from his wounds.
Investigators recovered Gill’s driver’s license from the scene. Witnesses
interviewed by police investigators identified Gill from a photographic line up
as the club patron who had been involved in a fight earlier in the evening before
the shooting, and at trial, an eyewitness identified Gill as the shooter. When
questioned by the police after his arrest, Gill admitted he was at the club and
was involved in the initial fight upon being asked to leave. He further stated he
believed it was during this scuffle when he dropped his identification. Gill
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denied he came back to the club after he was asked to leave and denied he was
the shooter, but he refused to answer any further questions.
1. Gill first asserts the evidence was insufficient to support a conviction.
This argument is premised upon his claim that the evidence against him was
speculative and impermissibly circumstantial. That is not the case. The
eyewitness who testified at the trial and identified Gill as the shooter was a
dancer at the club. She not only remembered Gill from an earlier visit he made
to the club prior to the date of the shooting, but testified that she had been within
inches of Gill’s face when he was in the club earlier in the evening of the
shooting when she danced for him, and that he inappropriately pulled her toward
him. She testified that she never forgot the face of a patron she had danced for
because, in her business, she needed to remember who “took good care of [her]”
and who behaved inappropriately so that she knew to stay away from them. She
testified that one of the reasons she remembered Gill was that “his eyebrows
were bushy.” She testified that she was about thirty feet away from the victim
who was shot, had a direct line of sight at the shooter, and recognized him as
Gill. She described how the shooter was holding a small gun straight out in
front of him as he entered the club. Several shots were fired, and she witnessed
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two of them before she hit the ground and saw the victim fall. The eyewitness
testified Gill did not have on the same clothes as those he was wearing when she
danced for him earlier in the evening, but was wearing a dark colored “hoodie”-
type jacket. At trial, Gill’s counsel attempted to impeach the credibility of the
eyewitness by establishing she had consumed up to three alcoholic beverages
during the course of the evening and by focusing on her location at the time of
the shooting in relation to the position of the shooter. Assessing witness
credibility, however, is the province of the jury, not this Court. Garey v. State,
273 Ga. 133, 137 (3) (539 SE2d 123) (2000); Hampton v. State, 272 Ga. 284,
285 (527 SE2d 872) (2000).
The State also presented circumstantial evidence that corroborated the
eyewitness testimony. Two dark colored hoodie jackets were recovered from
Gill’s residence at the time he was arrested later in the day of the early-morning
shooting. A surveillance videotape from the club showed the shooter wore a
hoodie jacket that appeared to be dark in color. It also showed the shooter was
wearing a bracelet that appeared to be a white rubber bracelet. When he was
arrested, Gill was wearing a white “Livestrong”-type rubber bracelet. The
videotape of the shooting was played to the jury, and although the State
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concedes the face of the shooter cannot be seen in the video, it reflected other
facts that corroborated the eyewitness testimony identifying Gill as the shooter.
Additionally, evidence was presented that, upon returning to his place of
residence after he was engaged in the fight at the club, Gill had access to an
SUV that matched the description of one captured on videotape arriving in the
club parking lot just before the shooting. One of the trial witnesses, who
testified she spent the night at the same residence where Gill was staying on the
night of these events, acknowledged that, when the police took her statement
within a few days after the events, she told them she had seen Gill reach under
a bed or a dresser and retrieve a small silver handgun. The evidence established
that this residence, where Gill claimed in his statement to police that he stayed
all night after returning from the club, was only a six- to seven-minute drive
from the club. Gill was arrested on November 24, 2010, at the home of one the
companions who accompanied him on his first visit to the club. That friend
testified that Gill told him he knew the authorities were looking for him and that
he intended to turn himself in to police. When the authorities arrived with a
warrant to arrest Gill, Gill attempted to avoid arrest by breaking through the
attic space into the adjoining townhouse.
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To refute the evidence against him, Gill points to testimony of certain
witnesses who spent the night at his place of residence on the evening in
question attesting that Gill was at that house when they went to sleep and was
there when they awoke the next morning. No testimony was presented, however,
that Gill did not leave the residence for the remainder of the night. Even if such
testimony had been presented, when reviewing the sufficiency of the evidence,
this Court “does not re-weigh the evidence or resolve conflicts in witness
testimony, but instead it defers to the jury’s assessment of the weight and
credibility of the evidence.” (Citations and punctuation omitted.) Hamilton v.
State, 2014 WL 2451377, ___ Ga. ___, ____ (1) ( ___ SE2d ____) (June 2,
2014). The inquiry conducted by this Court is to determine whether the
evidence is sufficient to permit a rational trier of fact to find the appellant guilty
beyond a reasonable doubt under the standard of Jackson v. Virginia, 443 U.S.
307 (99 SCt 2781, 61 LE2d 560 (1979). Having reviewed the evidence pursuant
to this familiar standard, we conclude it was sufficient to sustain the convictions.
2. Gill next asserts his convictions must be reversed because he received
ineffective assistance of counsel because trial counsel failed to request and
secure video footage of the earlier altercation between Gill and employees of the
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club. The State’s theory was that Gill became irate and belligerent when he was
asked to leave the club and that he threatened the lives of the employees of the
club, thus providing the motive for the shooting. Testimony showed the club
had video camera coverage of the entire crime scene, including the parking lot,
front door, and certain areas of the exterior of the club. Video footage of the
prior altercation existed (though it no longer existed at the time of trial) and the
investigating officer testified at the preliminary hearing that he reviewed such
footage, but the record shows neither the officer nor any other person acting on
behalf of the State obtained a copy of it. During the trial, Gill complained to the
judge that he had requested his counsel to obtain the footage but that counsel
failed to do so. At the hearing on Gill’s motion for new trial, trial counsel
testified that not having video footage of the fight was part of his trial strategy.
Trial counsel testified he did not think the footage would be helpful to the
defense, that he was “personally satisfied” not to have the footage, and that he
did not want the tape so he could argue during closing, as he did, that the State’s
failure to find the tape of the fight was a basis for reasonable doubt. Although
counsel did not know, without first reviewing it, whether footage of the fight
was inculpatory or exculpatory, it is undisputed that it would have shown the
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fight, which, according to the State, provided the motive for the shooting. The
judge at the motion for new trial hearing, who was also the trial judge, noted that
obtaining the footage would likely have triggered a requirement that it be
produced to the State, thus creating a risk that such a request would result in
providing the State with inculpatory evidence that would have bolstered the
State’s case.
“To prevail on a claim of ineffective assistance of counsel, an appellant
must prove both deficient performance of counsel and prejudice from the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984).” Bell v. State, 294 Ga. 443, 445 (2) (754 SE2d
327) (2014). “To prove that the performance of his lawyer was deficient, [Gill]
must show that his lawyer performed his duties at trial in an objectively
unreasonable way, considering all the circumstances, and in the light of
prevailing professional norms. . . .” (Citations and punctuation omitted.)
Powell v. State, 291 Ga. 743, 746 (2) (b) (733 SE2d 294) (2012).
With respect to the issue of performance, when reviewing ineffective
assistance of counsel claims, this Court applies a strong presumption that
counsel’s performance falls within the wide range of reasonable professional
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assistance. See Ford v. State, 290 Ga. 45, 47-48 (5) (717 SE2d 464) (2011)
(citing Strickland v. Washington, supra). “[A] decision amounting to reasonable
trial strategy does not constitute deficient performance.” Harris v. State, 279
Ga. 522, 529 (6) (615 SE2d 532) (2005). Instead, matters of trial tactics provide
grounds to find counsel ineffective “only if the tactical decision is so patently
unreasonable that no competent attorney would have chosen it.” McKenzie v.
State, 284 Ga. 342, 347 (4) (b) (667 SE2d 43) (2008). Gill’s trial counsel
testified and offered his reasons for the strategic decision not to seek the video
footage at issue. Gill failed to demonstrate this decision was patently
unreasonable, and thus he has failed to establish that his trial counsel provided
constitutionally deficient assistance of counsel.
Because both the “deficient performance” prong and the “prejudice” prong
of the Strickland test must be met, having found that Gill failed to satisfy the
deficient performance prong, this Court is not required to examine the other
prong of the test. See Johnson v. State, 2014 WL 2924869, ____ Ga. ____ (3)
(____ SE2d ____) (June 30, 2014). This enumeration of error fails. The trial
court’s order denying the motion for new trial is affirmed.
Judgment affirmed. All the Justices concur.
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