Middlebrooks v. State ( 2021 )

In the Supreme Court of Georgia
Decided: February 1, 2021
S21A0381. MIDDLEBROOKS v. THE STATE.
BETHEL, Justice.
Deshaun Middlebrooks appeals his convictions for malice
murder and other crimes in connection with the shooting death of
Quintavious Barber and the aggravated assault of Keundre
Chappell. 1 Middlebrooks contends that the trial court erred in
1 The crimes occurred on January 25, 2017. In March 2017, a Henry
County grand jury indicted Middlebrooks and Tory Jaleel Jones for malice
murder of Barber (Count 1), felony murder based on aggravated assault of
Barber (Count 2), aggravated assault of Barber (Count 3), aggravated assault
of Chappell (Count 4), aggravated battery of Chappell (Count 5), and
possession of a firearm during the commission of a felony (Count 6). Jones was
also charged individually with possession of less than an ounce of marijuana
(Count 7). His case is not part of this appeal. A jury jointly tried Middlebrooks
and Jones in October to November 2018 and found them both guilty on all
counts. The trial court sentenced Middlebrooks to life in prison without the
possibility of parole on Count 1, twenty years concurrent on Count 3, twenty
years consecutive to Count 1 on Count 4, and five years consecutive to Count 4
on Count 6. The trial court vacated Count 2, and purported to merge Count 5
into Count 4, although it appears the inverse would have been the proper
action. See Welch v. State, ___ Ga. ___ (848 SE2d 846, 852 (4)) (2020). However,
as this merger error does no harm to Middlebrooks and the State has not raised
denying his motion to exclude evidence of gang activity and that he
received constitutionally ineffective assistance of trial counsel.
Because Middlebrooks’ conviction for the aggravated assault of
Barber should have merged into the malice murder conviction, we
vacate the conviction and sentence for that count. Otherwise, we
affirm.
1. Evidence presented at trial showed that Barber was a
member of the Bloods street gang – specifically, a subset called “Sex
Money Murder” – and that Tory Jones and Middlebrooks were also
members of that same subset. In January 2017, Barber sent out a
message to some of his contacts indicating that he was looking to
trade his rifle for two pistols. One person responded that he or she
knew someone who would be interested in the exchange and
provided Middlebrooks’ number. Another person messaged Barber
it by cross-appeal, we decline to correct the error. See Dixon v. State, 302 Ga.
691, 698 (808 SE2d 696) (2017). On November 29, 2018, Middlebrooks filed a
motion for new trial, which was subsequently amended. The trial court denied
the motion for new trial on August 10, 2020. Appellate counsel filed a timely
notice of appeal on August 14, 2020. This case was docketed in this Court to
the term commencing in December 2020 and submitted for a decision on the
briefs.
2
to let him know that he or she and a fellow gang member each had
a pistol to trade for the rifle. Barber then met with Jones and traded
a rifle for the two pistols. However, after the trade, both Jones and
Barber were dissatisfied. Barber told the contact who organized the
exchange that he felt that they had tried to “slime” or “rob” him.
Barber eventually agreed to meet with Jones to get back the
rifle he had traded. Barber reassured his concerned friend, Keundre
Chappell, that the trade would be fine because Barber and Jones
were members of the same gang. Additionally, a “big homie” (i.e.,
Middlebrooks) who was “over” other gang members, was coming. On
January 25, Barber and Chappell met Jones and Middlebrooks in a
parking lot for the trade. Middlebrooks exited his car and began
speaking with Barber by the car’s trunk. Jones also exited the car,
greeted Barber, and returned to sit in the car. Chappell, who felt
uneasy, backed away from the group to stand some distance away.
Barber asked for his rifle that he had exchanged, and Middlebrooks
told Jones to open the trunk. Jones replied that he could not find the
trunk-release button, so Middlebrooks walked towards the driver’s
3
side door to open the trunk. As soon as the trunk opened,
Middlebrooks started shooting at Barber and Chappell. Chappell
was shot in his left hand and fell to the ground between two cars.
Chappell saw Barber run past him, and he got up and started
running behind him. Chappell and Barber ran to a nearby
apartment, where Barber collapsed on the floor. Barber had been
shot six times and died from his injuries. Middlebrooks later told
Chappell’s cousin, who shared his dorm in jail, that he shot Barber
because Barber moved from a subset of the Eastside Bloods to Sex
Money Murder, and because Barber, who was his subordinate in the
gang, did not give him a gun. 2
2. Prior to trial, Middlebrooks filed motions to exclude any
evidence regarding his gang participation or activity as improper
character evidence under OCGA § 24-4-404 (b), irrelevant, and
highly prejudicial. The trial court denied Middlebrooks’ motions
2 Middlebrooks does not argue that the evidence was insufficient to
support his convictions, and because this case was docketed to the term of
Court that began in December 2020, we do not review that issue sua sponte.
See Davenport v. State, 309 Ga. 385, 391-392 (4) (846 SE2d 83) (2020).
4
following a pre-trial hearing and ruled that the gang evidence was
admissible because it was intrinsic to the crimes charged.
Middlebrooks argues that the trial court abused its discretion in
denying his motions and that as a result, the trial was “riddled” with
gang evidence and references to gang activity including during voir
dire questioning, opening statements, witness examinations, and
closing statements. As explained below, we conclude that the trial
court did not abuse its discretion by admitting this evidence at trial.
(a) Middlebrooks argues that the gang evidence was not
relevant because the State did not charge him with a violation of
Georgia Street Gang Terrorism and Prevention Act, there was no
evidence of ongoing gang activity, the State did not adequately prove
that Middlebrooks was a gang member, and the evidence was
unnecessary to prove motive. We disagree.
Evidence is admissible as intrinsic evidence when it is (1)
an uncharged offense arising from the same transaction
or series of transactions as the charged offense; (2)
necessary to complete the story of the crime; or (3)
inextricably intertwined with the evidence regarding the
charged offense.
5
(Citation and punctuation omitted.) Williams v. State, 302 Ga. 474,
485 (IV) (d) (807 SE2d 350) (2017). In applying these factors, this
Court has previously noted that
evidence pertaining to the chain of events explaining the
context, motive, and set-up of the crime is properly
admitted if it is linked in time and circumstances with the
charged crime, or forms an integral and natural part of an
account of the crime, or is necessary to complete the story
of the crime for the jury.
(Citation and punctuation omitted.) Id. “It is within the trial court’s
sound discretion to determine whether to admit such evidence, so
we review a trial court’s ruling admitting evidence as intrinsic for
an abuse of that discretion.” (Citation and punctuation omitted.)
Harris v. State, ___ Ga. _____ (850 SE2d 77, 83 (2) (b)) (2020).
Here, the State presented evidence from which the jury could
conclude that Middlebrooks and Barber were active gang members
in the same gang and that Middlebrooks was motivated to shoot
Barber because of a perceived disrespect. The challenged gang
evidence thus plainly pertained to the chain of events in the case
and was linked in time and circumstance with the charged crimes,
6
making the information necessary to complete the story for the jury.
See Williams, 302 Ga. at 486 (IV) (d). See also Harris, 850 SE2d at
83 (2) (b) (“necessary” evidence is that which is “reasonably
necessary” to help the jury understand the sequence of events, not
that which is “strictly necessary”). Further, even in the absence of a
gang-related charge, evidence of gang activity or affiliation may still
be admissible to show motive. See Armstrong v. State, Case No.
S20A1364, 2020 WL 7481747, at *4 (2) (a) (Ga. Dec. 21, 2020).
Accordingly, Middlebrooks’ arguments lack merit.
(b) Middlebrooks also argues that evidence of his gang
involvement was more prejudicial than probative and was also
inaccurate. Under OCGA § 24-4-403 (“Rule 403”), “[r]elevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice[.]” Although “evidence
of gang membership can be highly prejudicial[,]” all inculpatory
evidence is inherently prejudicial; “it is only when unfair prejudice
substantially outweighs probative value that the rule permits
exclusion.” (Citation and punctuation omitted; emphasis in
7
original.) Anglin v. State, 302 Ga. 333, 337 (3) (806 SE2d 573) (2017).
Intrinsic evidence must satisfy Rule 403. See Williams, 302 Ga. at
485 (IV) (d).
Here, the trial court did not abuse its discretion in determining
that the probative value of the gang evidence in establishing the
context and motive for the charged offenses was not substantially
outweighed by the danger of unfair prejudice. See Anglin, 302 Ga.
at 337 (3) (probative value of evidence of defendant’s alleged gang
membership outweighed danger of unfair prejudice where evidence
was relevant and probative of motive). Additionally, any alleged
inaccuracies or objections raised on appeal by Middlebrooks with
respect to the credibility of the gang evidence went not to the
evidence’s admissibility but rather its weight, which is for the jury
to resolve. See Davis v. State, 272 Ga. 327, 330 (4) (528 SE2d 800)
(2000) (discrepancy in witness testimony went to weight and
credibility of evidence rather than its admissibility). Thus, the trial
court did not abuse its discretion in admitting the evidence
Middlebrooks complains about on appeal.
8
3. Middlebrooks next argues that he received constitutionally
ineffective assistance because his trial counsel should have retained
an expert on gangs to advance the defense’s theory that the shooting
was not actually gang-related and that Chappell was the aggressor
in the shooting. Middlebrooks argues that his trial counsel was not
prepared to defend Middlebrooks or to explain the gang evidence
because trial counsel failed to retain such an expert. We disagree.
To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance was
constitutionally deficient and that the deficient performance
resulted in prejudice to the defendant. See Strickland v.
Washington, 466 U. S. 668, 687-696 (104 SCt 2052, 80 LE2d 674)
(1984); Wesley v. State, 286 Ga. 355, 356 (3) (689 SE2d 280) (2010).
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 light of prevailing
professional norms.” Romer, 293 Ga. at 344 (3); see also Strickland,
466 U. S. at 687-688. This requires a defendant to overcome the
9
“strong presumption” that trial counsel’s performance was
adequate. Marshall v. State, 297 Ga. 445, 448 (2) (774 SE2d 675)
(2015). To satisfy the prejudice prong, a defendant must establish a
reasonable probability that, in the absence of counsel’s deficient
performance, the result of the trial would have been different. See
Strickland, 466 U. S. at 694. “If an appellant fails to meet his or her
burden of proving either prong of the Strickland test, the reviewing
court does not have to examine the other prong.” Lawrence v. State,
286 Ga. 533, 533-534 (2) (690 SE2d 801) (2010).
“[T]he decision whether to present an expert witness, like other
decisions about which defense witnesses to call, is a matter of trial
strategy that, if reasonable, will not sustain a claim of ineffective
assistance.” (Citation and punctuation omitted.) Sullivan v. State,
308 Ga. 508, 512 (2) (b) (842 SE2d 5) (2020). See also Thomas v.
State, 284 Ga. 647, 650 (3) (670 SE2d 421) (2008). Here, trial counsel
admitted at the motion for new trial hearing that she did not
anticipate the introduction of gang-related evidence and therefore
did not retain an expert witness. But the inquiry focuses on what a
10
reasonably competent attorney may do under the circumstances.
See Chavez v. State, 307 Ga. 804, 811 (2) (b) (837 SE2d 766) (2020)
(trial counsel’s own assessment of his performance does not control;
rather, to establish that trial counsel was deficient, the appellant
has to show that “no reasonable attorney” would have taken the
same course of action as trial counsel). And although expert
testimony might have been helpful in rebutting the evidence of gang
activity and affiliation presented by the State at trial – as the expert
that new counsel retained attacked the reliability of the State’s gang
evidence at the hearing on the motion for new trial – competent trial
counsel could have reasonably determined that calling a gang expert
to testify at trial might have served only to emphasize evidence that
Middlebrooks was involved in a gang, which was key to the State’s
theory for Middlebrooks’ motive. Rather than attack such evidence
with an expert, competent trial counsel could have reasonably
decided to attack the gang evidence in other ways, including by
cross-examining the State’s witnesses who testified about gang
activity and by arguing to the jury that the gang evidence was not
11
credible or accurate, as trial counsel did here. Accordingly, because
Middlebrooks cannot establish that his trial counsel performed
deficiently, this enumeration fails. See Stripling v. State, 304 Ga.
131, 139 (3) (b) (816 SE2d 663) (2018) (counsel could reasonably
decide not to call competing expert witness and instead focus on
cross-examination of State’s witness); Matthews v. State, 301 Ga.
286, 289 (800 SE2d 533) (2017) (counsel reasonably determined not
to call expert witness and focused on cross-examination and
argument to advance defense theory).
4. Finally, although not raised as error by Middlebrooks, we
have identified a sentencing error. The trial court sentenced
Middlebrooks for both the malice murder and aggravated assault of
Barber. But, as charged in the indictment, the malice murder charge
and the aggravated assault charge were both based on the gunshot
that killed Barber. In light of the jury’s verdicts, the trial court
should have merged the count for the aggravated assault of Barber
with the conviction for his malice murder. Because it did not, we
vacate Middlebrooks’ conviction and sentence for the aggravated
12
assault of Barber. See Lumpkin v. State, ___ Ga. ___ (4) (849 SE2d
175, 186) (2020).
Judgment affirmed in part and vacated in part. All the Justices
concur.
13