Albury v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: August 23, 2022
S22A0616. ALBURY v. THE STATE.
WARREN, Justice.
Riki Ray Albury was convicted of malice murder and other
crimes in connection with the stabbing death of Ronald Roach. 1 On
appeal, Albury contends that the trial court erred by failing to
1 The crimes occurred on June 28, 2018. On October 2, 2018, a DeKalb
County grand jury indicted Albury, Jared Kelvin Smith, and Kessiah Rowe for
malice murder, felony murder, aggravated assault, possession of a knife during
the commission of a felony, and theft by taking. Albury’s case was severed
from Smith’s. Smith was tried in July 2019 and convicted of malice murder
and theft by taking, and we affirmed his convictions in Smith v. State, 313 Ga.
584 (872 SE2d 262) (2022). Albury was tried from September 20 to 26, 2019,
and Rowe testified in exchange for dismissal of her charges. The jury found
Albury guilty on all counts. On September 26, 2019, the trial court sentenced
Albury to serve life in prison for malice murder and two probated terms of five
years each for the knife charge and theft by taking to run consecutively to the
murder sentence but concurrently to each other. The felony murder count was
vacated by operation of law, and the aggravated assault count was merged for
sentencing purposes. Through new counsel, Albury timely filed a motion for
new trial on October 2, 2019, and amended it on June 14, 2021. The trial court
denied the amended motion on September 30, 2021, and Albury timely filed a
notice of appeal on October 11, 2021. The case was docketed in this Court to
the April 2022 term and submitted for a decision on the briefs.
excuse two jurors for cause and by admitting a particular autopsy
photograph into evidence, and that Albury’s trial counsel provided
constitutionally ineffective assistance. Seeing no error, we affirm.
1. The evidence presented at Albury’s trial showed the
following. Roach’s body was discovered on the floor of his bedroom
on the morning of June 28, 2018. There was no indication of forced
entry into his apartment, but there was blood in several locations
inside, especially in Roach’s bedroom where there were signs of a
struggle. Roach’s vehicle was missing. Neighbors who lived in the
apartment below Roach’s heard an argument, loud noises, and
yelling upstairs at around 3:00 or 4:00 a.m. on the morning Roach
was killed. They also heard the sound of people running outside the
apartment, a car engine cranking, and a car driving away.
Evidence placed Albury in Roach’s apartment on the night of
the murder. Roach paid for rideshare services on the evening of
June 27, 2018—including for a ride to a location near Roach’s
apartment for a man later identified as Albury. Prentiss Green
visited Roach’s apartment on the night of June 27, 2018, went into
2
Roach’s bedroom, saw two young men and a woman engaged in
sexual activity, and left after 20 minutes. Green later identified the
two men as Albury and Jared Kelvin Smith from photographic
lineups. A GBI forensic biologist testified that the one pair of
underwear recovered at the scene of Roach’s murder tested positive
for DNA matching Roach, Albury, and Kessiah Rowe.
Rowe testified that on the night of Roach’s murder, Smith sent
an Uber to bring her to Roach’s apartment, where she engaged in
sexual activity with Smith and Albury while Roach sat nearby at his
desk. Rowe left with Smith and Albury and went to a gas station,
where there was an “altercation” with some other men and where
she saw Smith pull out a knife. Rowe then went back to Roach’s
apartment with Smith and Albury. A heated argument ensued, and
Smith gave Albury a “confirmation look” and struck Roach three
times with a closed fist on the back of Roach’s neck while Roach was
sitting at his dining room table. Due to the type of motion Smith
made, Rowe believed that Smith was stabbing Roach. Roach ran to
his bedroom, but Smith forced his way inside. Rowe heard fighting
3
and walked to the bedroom. She saw blood on the bed and observed
Smith attacking Roach on one side of the bed and Albury watching
from the other side of the bed. Rowe left the apartment. After 15 to
20 minutes, Smith, Albury, and Rowe left in Roach’s car. While in
the car, Albury said that “we left” Roach’s face “black and blue” and
that “we could have stopped at any time.” Smith and Albury
changed clothes, and Smith later dropped off Albury and Rowe at a
motel.
Dr. Christy Cunningham, a DeKalb County medical examiner
who performed Roach’s autopsy, testified that Roach’s cause of death
was multiple stab wounds; she identified 38 stab wounds across
Roach’s body that were consistent with wounds made by a single
knife or multiple knives. She also identified blunt-force trauma
injuries on Roach’s head and face.
2. Albury contends that the trial court erred by failing to
excuse two jurors because, as they explained during voir dire, they
had certain scheduling conflicts during the week of trial. The trial
transcript does not demonstrate that Albury made any objection or
4
motion to strike the two jurors at issue for cause. And Albury does
not claim that he did so or that some portion of the transcript
showing such an objection or motion is missing. Accordingly, this
issue has not been preserved for ordinary appellate review. See Hill
v. State, 310 Ga. 180, 186 (850 SE2d 110) (2020) (“Because Hill did
not make a request to strike the juror for cause, the issue was waived
for ordinary appellate review.”); Veal v. State, 301 Ga. 161, 163 (800
SE2d 325) (2017) (“Veal concedes that he did not make a request to
strike the jurors. Therefore, the issue was waived for direct
review.”). See also Thompson v. State, 294 Ga. 693, 700-701 (755
SE2d 713) (2014) (Nahmias, J., concurring specially) (noting lack of
legal authority imposing any duty on trial courts to excuse jurors for
cause sua sponte). Moreover, Albury does not claim that the trial
court committed plain error, and in any event “plain-error review is
not available for this issue.” Hill, 310 Ga. at 186.
3. Albury also contends that the trial court erred by admitting
into evidence a post-incision autopsy photograph. He argues that
the trial court never properly subjected the photograph to the
5
balancing test required under OCGA § 24-4-403 (“Rule 403”) and
that a thorough balancing test would have resulted in exclusion of
the photograph. We disagree.
Under our current Evidence Code, “we generally evaluate the
admissibility of autopsy photographs under OCGA §§ 24-4-401, 24-
4-402, and 24-4-403 (‘Rule 401, 402, and 403’), relying on ‘our cases
decided under the new Evidence Code, and also looking to federal
case law for guidance.’” Mitchell v. State, 307 Ga. 855, 863 (838
SE2d 847) (2020) (quoting Venturino v. State, 306 Ga. 391, 396 (830
SE2d 110) (2019)) (punctuation omitted). Rule 401 defines “relevant
evidence broadly,” State v. Orr, 305 Ga. 729, 736 (827 SE2d 892)
(2019), as “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” OCGA § 24-4-401. Rule 402 provides that “[a]ll relevant
evidence shall be admissible, except as limited by constitutional
requirements or as otherwise provided by law or by other rules, as
prescribed pursuant to constitutional or statutory authority,
6
applicable in the court in which the matter is pending. Evidence
which is not relevant shall not be admissible.” OCGA § 24-4-402.
And under Rule 403, “[r]elevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” OCGA § 24-4-403. “Decisions
regarding relevance are committed to the sound discretion of the
trial court, and the exclusion of relevant evidence under Rule 403 is
an extraordinary remedy that should be used only sparingly.”
Venturino, 306 Ga. at 395 (citations and punctuation omitted).
“Autopsy photographs may be relevant and probative to show the
nature and location of a victim’s injuries, even if the cause of death
is not disputed.” Allen v. State, 307 Ga. 707, 710 (838 SE2d 301)
(2020).
Albury filed a pre-trial motion in limine to exclude from
evidence a post-incision autopsy photograph of an injury to Roach’s
head after the skin of his scalp and face had been peeled back. In
7
the motion, Albury argued that the photograph did not depict a fatal
injury, was not required to assist the jury’s understanding of the
circumstances surrounding Roach’s death, and could be described
effectively with the medical examiner’s diagram of the injuries, as it
was at co-indictee Smith’s trial. When the motion in limine was
heard at trial, the State provided the trial court with a copy of this
Court’s opinion in Venturino and referred to that decision’s
recognition of “the balancing test in 403.” Both parties extensively
argued about the relevance of the photograph, including the weight
of its probative value and its danger of unfair prejudice. The trial
court said that it did not see the photograph as “that gory,” ruled
that it would be relevant “based on the law being cited by the State,”
and admitted it over Albury’s objection.
Although the trial court did not cite the text of Rule 403 in its
ruling, the trial transcript shows that both parties argued the text
of the rule, that the trial court discussed the photograph’s relevance
and potential prejudice, and that it based its ruling on the case the
State cited, Venturino, 306 Ga. at 395-396. In so doing, the trial
8
court implicitly conducted the proper analysis under Rule 403, even
though it did not expressly reference that rule. See Johnson v. State,
312 Ga. 481, 494 (863 SE2d 137) (2021) (“[W]e see no abuse of
discretion in the trial court’s implicit conclusion that the probative
value of [certain] evidence was not substantially outweighed by its
prejudicial effect.”) (emphasis supplied).
We next consider whether the trial court’s ruling amounted to
an abuse of its discretion and conclude that it did not. In that
regard, Albury describes the photograph at issue as “gory,”
“graphic,” “ghastly,” and “gruesome,” and argues that it neither
showed Roach’s cause of death nor supported the State’s theory that
more than one person attacked Roach. However, Dr. Cunningham
testified that because of Roach’s thick hair, she could see his head
injury only after pulling back his scalp. The photograph shown to
the jury thus depicted the only way that Roach’s head injury was
visible. Moreover, the wound depicted in that photograph differed
from numerous other injuries that were consistent with evidence of
Smith’s participation in the crimes by striking Roach with Smith’s
9
knife and perhaps his fist. Because Dr. Cunningham testified that
the particular injury depicted in the photograph was caused by a
blunt force consistent with a person striking Roach’s head with a
heavy object—and not with a fist or a sharp object like a knife—the
photograph had a tendency to make it “more probable” that someone
other than Smith participated in the crimes—a fact of great
consequence in Albury’s trial. See Rule 401. Accordingly, although
the photograph at issue could be characterized as somewhat
gruesome, it nevertheless had significant probative value in showing
the nature of Roach’s various injuries and supported the theory that
Albury (and not just Smith) participated in the attack— particularly
in light of Rowe’s testimony that Albury stayed with Smith during
the attack and later admitted his participation in the attack.
Based on the foregoing, we cannot say that the trial court
abused its discretion when it concluded that the photograph was
relevant and implicitly ruled under Rule 403 that the photograph’s
probative value was not substantially outweighed by the danger of
unfair prejudice. See Allen, 307 Ga. at 710; Moore v. State, 307 Ga.
10290, 295 (835 SE2d 610) (2019) (holding that the trial court did not
abuse its discretion in admitting post-incision autopsy photographs
that “were relevant to show the nature and location of the victim’s
injuries, which corroborated the State’s evidence of the
circumstances of the killing”) (citation and punctuation omitted);
Venturino, 306 Ga. at 395-396 (disavowing, in cases governed by our
current Evidence Code, application of the former rule that a post-
incision autopsy photograph is not admissible “unless necessary to
show some material fact which becomes apparent only because of
the autopsy,” and holding that trial court did not abuse its discretion
in admitting such a photograph “[a]lthough [it] was relatively
gruesome”) (citation and punctuation omitted).
4. Albury contends that he was denied the effective assistance
of counsel in two ways. We conclude that Albury has failed to show
that his trial counsel was constitutionally ineffective.
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
11
the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (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 the light of prevailing professional norms.” Romer v. State,
293 Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466
U.S. at 687-688. This requires a defendant to overcome the “strong
presumption” that trial counsel’s performance was adequate.
Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation
and punctuation omitted). To carry the burden of overcoming this
presumption, a defendant “must show that no reasonable lawyer
would have done what his lawyer did, or would have failed to do
what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d
221) (2016). “In particular, decisions regarding trial tactics and
strategy may form the basis for an ineffectiveness claim only if they
were so patently unreasonable that no competent attorney would
have followed such a course.” Id. (citation and punctuation omitted).
12
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 (690 SE2d 801) (2010).
(a) Albury claims that his trial counsel was ineffective because,
after Juror 28 became sick while the post-incision autopsy
photograph was displayed to the jury, counsel failed to press the
trial court to question the other jurors and ascertain any resulting
bias.2 While the photograph was displayed and Dr. Cunningham
2 Albury also raises this issue apart from his claim of ineffective
assistance, separately asserting that the trial court erred by failing to question
the other jurors. As recounted below, however, trial counsel did not express
any concern, let alone objection, after Juror 28 became sick. Accordingly,
Albury has waived ordinary appellate review of the trial court’s failure to
question the other jurors. See Davis v. State, 290 Ga. 584, 587-588 (723 SE2d
431) (2012) (holding that, when one juror asked for a break during the medical
examiner’s testimony and then became unconscious in the jury room,
“appellant did not posit any concern or objection to the trial court’s handling of
the interruption” and therefore had waived appellate review of the trial court’s
failure to poll the jury to determine the other jurors’ continued impartiality).
13
was describing the injury depicted, Juror 28 said: “I might pass out.”
After a 15-minute recess, the trial court explained that the juror had
tried to stand up, “looked like he fell down on the floor, apparently
threw up,” and was assisted by a court deputy and by medical
personnel. The court then decided to release the jurors for the day
and ask them in the morning if what happened would affect their
ability to be fair and impartial. Counsel for both parties stated “no
objection.” The trial court raised the possibility of replacing Juror
28 with an alternate, and defense counsel said she “would like to
wait and make that decision after the questioning, if he says he is
fine.” When questioned in the morning, Juror 28 said that he felt
“much better than yesterday,” that he was able to continue as a fair
and impartial juror, that “nerves” caused his sickness, and that he
was “checked . . . out” and everything was fine. The parties had no
questions for Juror 28, and the other jurors were not questioned
either generally or individually. The trial court briefly explained to
Albury does not claim that the trial court committed plain error, and indeed
such review is not available because there is no specific statutory provision for
plain-error review of this type of issue. See Hill, 310 Ga. at 186.
14
the jury that Juror 28 was able to continue, and the examination of
Dr. Cunningham proceeded without objection.
Pretermitting whether counsel performed deficiently by not
requesting that the other jurors be questioned, Albury has failed to
offer any evidence to show that, had the jurors been questioned,
there is a reasonable probability that the outcome of the trial would
have been different. See Jones v. State, 282 Ga. 47, 50 (644 SE2d
853) (2007) (“Even assuming, arguendo, that counsel performed
deficiently by failing to make inquiry into whether the juror’s
behavior (clutching her stomach and leaving the courtroom with the
bailiff) had any impact on the rest of the panel, appellant failed to
adduce any evidence to show that he was prejudiced by the lack of
inquiry.”).
(b) Albury also claims that his trial counsel was ineffective for
failing to request a jury charge on voluntary manslaughter and
failing to object when the trial court, while working from the jury
charge given at Smith’s trial, removed a charge on voluntary
manslaughter. Prior to Smith’s trial, Albury turned down a plea
15
offer of 15 years in prison for voluntary manslaughter in exchange
for his truthful testimony. During the charge conference, the trial
court noted that neither party had requested a charge on voluntary
manslaughter, so that charge would not be included in the charges
given to the jury; neither party objected. At the hearing on the
motion for new trial, Albury’s trial counsel testified that she met
frequently with Albury in preparation for trial and thoroughly
explained the plea offer, including the difference between murder
and voluntary manslaughter and what that would mean for
sentencing. Counsel further testified that she and Albury discussed
whether to ask for an instruction on voluntary manslaughter; that
Albury wanted to argue only that he was not guilty; that her trial
strategy was to argue that Albury was present but was not a party
to the crimes; that both of them were concerned that the jury might
reach a compromise verdict of guilt on voluntary manslaughter,
resulting in a worse sentence than was offered prior to trial; and
that she and Albury together decided not to request a charge on
voluntary manslaughter. In the order denying Albury’s motion for
16
new trial, the trial court relied on counsel’s testimony, recognized
that pursuing an all-or-nothing defense is a generally permissible
strategy, and found that Albury explicitly agreed to that strategy.
Albury argues that counsel could have foreseen the guilty
verdict for malice murder, that no valid trial strategy would deprive
the jury of an alternative to murder and its mandatory life sentence,
that a compromise verdict would have been better than the resulting
guilty verdict, and that despite counsel’s testimony, Albury did not
understand or sanction the trial strategy because he has little
knowledge of the criminal justice system and relied heavily on
counsel’s advice.
Contrary to these arguments, and assuming that the evidence
presented at trial authorized an instruction on voluntary
manslaughter, it was not a patently unreasonable strategy for trial
counsel to assert, after consultation with Albury, that he did not
participate in the crimes and to pursue an all-or-nothing defense.
See Outlaw v. State, 311 Ga. 396, 406 (858 SE2d 63) (2021)
(“Decisions about which defenses to present and which jury charges
17
to request are classic matters of trial strategy, and pursuit of an all-
or-nothing defense is generally a permissible strategy.”) (citation
and punctuation omitted); Floyd v. State, 307 Ga. 789, 802 (837
SE2d 790) (2020) (“Floyd’s trial strategy was to assert that he had
no involvement in Jackson’s death. That strategy was reasonable.
Moreover, in the execution of such a reasonable strategy, a trial
counsel’s decision not to request jury instructions on a lesser offense
in order to pursue an ‘all-or-nothing defense’ is itself a matter of trial
strategy.”); Szorcsik v. State, 303 Ga. 737, 742-743 (814 SE2d 708)
(2018) (“Counsel was free to pursue an all-or-nothing strategy . . .
after consulting with [the defendant], and the failure to request a
jury charge on voluntary manslaughter under such circumstances
does not amount to deficient performance. . . . Indeed, while other
counsel, had they represented appellant, may have exercised
different judgment, the fact that the trial counsel chose to try the
case in the manner in which it was tried and made certain difficult
decisions regarding the defense tactics to be employed with which
appellant and his present counsel now disagree, does not require a
18
finding that the representation below was so inadequate as to
amount to a denial of effective assistance of counsel.”) (citation and
punctuation omitted). As a result, Albury has not established that
his trial counsel performed deficiently in this regard, and this claim
of ineffective assistance of counsel fails. See Outlaw, 311 Ga. at 406;
Floyd, 307 Ga. at 802.
Judgment affirmed. All the Justices concur.
19