Fisher v. State

In the Supreme Court of Georgia
Decided: September 12, 2016
S16A0852. FISHER v. THE STATE.
MELTON, Justice.
Following a jury trial, Ronald Fisher appeals his conviction for malice
murder, contending that the evidence was insufficient to support the verdict and
that trial counsel rendered ineffective assistance.1 For the reasons set forth
below, we affirm.
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On September 23, 2011, Fisher was indicted for malice murder, felony
murder, aggravated assault with a deadly weapon, and possession of a firearm
during the commission of a felony in connection with the May 30, 2005
shooting of Eddie Shaheed. On May 23, 2013, the trial court dismissed the
counts of aggravated assault and possession of a firearm because they were time
barred. Following a jury trial beginning on September 25, 2013, Fisher was
found guilty of malice murder and felony murder. The trial court sentenced
Fisher to life imprisonment for malice murder, and the count of felony murder
was vacated by operation of law. Malcolm v. State, 263 Ga. 369 (4) (434 SE2d
479) (1993). On October 8, 2013, Fisher filed a motion for new trial that he
amended on June 22, 2015 and July 2, 2015. On October 5, 2015, the trial court
denied the motion for new trial, and Fisher filed a timely notice of appeal.
Thereafter, his case was docketed to the April 2016 term of this Court and
submitted for decision on the briefs. We note that, in a prior opinion, this Court
reversed Fisher’s conviction for an unrelated murder. See Fisher v. State, Case
No. S16A0515, decided July 8, 2016.
1. In the light most favorable to the verdict, the record shows that, on the
afternoon of May 30, 2005, Eddie Shaheed was walking along Cascade Avenue
in Atlanta with friends, including Detavious Jackson and Richard Varner. At
about the same time, Fisher and his colleagues, including Darrel Horace and
Ferlando Walker, arrived on scene. Both groups converged at a nearby
convenience store and began conversing about various topics. Walker, however,
did not stay long and walked back to the car that he, Horace, and Fisher had
driven to the scene. At one point, a group of teenagers approached the
convenience store, and Fisher became agitated and suspicious, asking, “What's
all the mob s**t for?” Jackson attempted to diffuse the situation, but Shaheed
was annoyed by Fisher’s negative comment. Shaheed voiced his annoyance by
saying "F**k this s**t," turned his back on Fisher, and started walking away.
Fisher responded by pulling out a gun, putting it to the back of Shaheed’s head,
and fatally shooting Shaheed. Fisher then fired the weapon several more times
as the crowd dispersed. Fisher and Horace ran back to the car in which Fisher
and his group had arrived, and the group drove away. Walker saw Fisher
running back to the car with a gun in his hand, and Fisher got into the back seat
on the passenger’s side of the car. Michael Cunningham, who had been at the
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scene, separately saw the shooter, whom he did not know, run with the gun to
the passenger side of a car matching the description of the one Fisher and his
cohorts were driving. Later, Fisher explained to his friends that he shot Shaheed
because he saw Shaheed reaching inside his jacket– a move Fisher found
threatening– and asserting that "he wasn't going to let that happen."
At trial, Horace testified that he witnessed Fisher shoot Shaheed, and,
although Walker did not witness the actual shooting, Walker testified to an
identical chain of events. Jackson’s testimony also supported the testimony of
Horace and Walker, though Jackson was unable to unequivocally identify Fisher
as the shooter. Jackson did, however, know both Horace and Walker, and he and
other witnesses affirmatively placed them at the scene of the shooting. In
addition, testimony indicated that Varner identified Fisher as the shooter in a
photo lineup some years after the shooting occurred, though his identification
was not one hundred percent certain.
This evidence was sufficient to enable the jury to find Fisher guilty of
malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307
(99 SCt 2781, 61 LE2d 560) (1979). Furthermore, though some of the evidence
was conveyed through the testimony of co-defendants, that evidence was
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properly corroborated. See OCGA § 24-14-8.
2. Fisher contends that trial counsel rendered ineffective assistance by
introducing testimony regarding Varner’s identification of him as the shooter.
We disagree.
In order to succeed on his claim of ineffective assistance, [Fisher]
must prove both that his trial counsel’s performance was deficient
and that there is a reasonable probability that the trial result would
have been different if not for the deficient performance. Strickland
v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
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. Id. at 697 (IV); Fuller v. State, 277 Ga.
505 (3) (591 SE2d 782) (2004). In reviewing the trial court's
decision, “‘[w]e accept the trial court's factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.’ [Cit.]”
Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).
Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).
The record shows that the State called Sergeant Longshore and Detective
Zimbrick during trial to discuss the nature of the investigation and the
development of the case against Fisher. Sergeant Longshore testified that,
among other witnesses, the investigation led him to Varner. Sergeant Longshore
testified on direct that he showed Varner a photo lineup, but he did not testify
regarding any details of the lineup. Detective Zimbrick, who ultimately took
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over the investigation from Sergeant Longshore, also discussed the process of
tracking down Fisher. He testified that he showed photo lineups to witnesses,
but he did not always name who those witnesses were in a consistent fashion.
He did testify that, when he resumed the investigation after a number of years
had passed, he went back to interview the “original” witnesses to the crime.
When asked why he secured a warrant against Fisher for the murder of Shaheed,
Detective Zimbrick replied that it was “[b]ased on the witness statements and
the suspect identification of the witnesses.”
On cross-examination, Fisher’s trial counsel began drawing into question
Detective Zimbrick’s characterizations of and memory concerning the
statements he amassed in his investigation, highlighting, among other things,
that some witnesses had actually identified another person who was in jail at the
time that the crimes were committed. As part of this questioning, trial counsel
decided to question Detective Zimbrick about his police report concerning a
photo lineup he showed to Varner, despite the fact that Varner had not testified
(and ultimately was never called by the State). Specifically, trial counsel
challenged Detective Zimbrick’s characterization in his report that Varner
immediately identified Fisher, using the record of evidence to show that Varner
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expressed some hesitation and uncertainty that he had chosen the right person.
In addition, trial counsel brought out evidence that Varner explicitly questioned
the reliability of his identification after he made it. In a similar manner, trial
counsel questioned Detective Zimbrick’s recollection of his interview with
Horace, attempting to point out inconsistencies in the detective’s testimony. On
redirect, the State responded by playing Varner’s taped statement to the jury,
another argued consequence of trial counsel’s alleged ineffective assistance.
However, it is evident from a review of the transcript that trial counsel was
attempting to draw the accuracy of Detective Zimbrick’s testimony and the
propriety of his investigation into question. In addition, trial counsel drew into
question the accuracy of the witness identifications.
Though Varner’s identification of Fisher had not been previously
introduced into evidence, he had been mentioned in testimony as one of the
several witnesses interviewed by police. Given this fact, trial counsel’s strategy
of undermining as much of the eyewitness testimony as she could, including
Varner’s, cannot be classified as unreasonable. Accordingly, the trial court did
not err by rejecting Fisher’s claim of ineffective assistance. Id.
Judgment affirmed. All the Justices concur.
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