Bonner v. State

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Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.
In the Supreme Court of Georgia
Decided: August 23, 2022
S22A0789. BONNER v. THE STATE.
LAGRUA, Justice.
Appellant Aurie Bonner III was convicted of murder in
connection with the death of Christine Cook. 1 In this appeal, he
1Cook died on October 17, 2012. On February 19, 2013, a Bibb County
grand jury indicted Appellant for malice murder, two counts of felony murder,
aggravated assault, and burglary in the first degree. At a trial from August 26
to 28, 2013, the jury found Appellant guilty of all counts. Appellant was
sentenced to serve life in prison without the possibility of parole for malice
murder. The aggravated assault count was merged into malice murder for
sentencing purposes, and the felony murder counts were vacated by operation
of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993).
The trial court merged the burglary count into the malice murder count, but
“[t]he burglary count . . . does not merge with malice murder as a matter of
law, because each crime by definition requires proof of an element that the
other does not.” Favors v. State, 296 Ga. 842, 848 (5) (770 SE2d 855) (2015).
However, because this merger error benefits the defendant and is not one of
those exceptional circumstances in which we exercise our discretion to correct
sentencing errors, we decline to correct it here. See Dixon v. State, 302 Ga. 691,
698 (4) (808 SE2d 696) (2017).
Appellant filed a timely motion for new trial, which the trial court denied
in January 2022. Appellant filed a timely notice of appeal, and the case was
docketed to this Court’s April 2022 term and submitted for a decision on the
briefs.
contends that his trial counsel provided constitutionally ineffective
assistance. For the reasons explained below, we affirm.
The evidence presented at trial shows that in the early
morning hours of October 18, 2012, law enforcement officers arrived
at Cook’s home to conduct a welfare check. Cook’s front door was
unlocked; she was discovered lying on the floor deceased “with a
jacket with dry cleaner plastic on it draped over her face.” A nearby
jewelry box had been ransacked. The police determined that Cook’s
diamond wedding ring was missing, along with her Cadillac, a
television, and a ruby ring. Cook’s Cadillac was discovered
abandoned approximately one block from her home; the police
swabbed the Cadillac’s steering wheel and collected DNA.
During his investigation, Sergeant Scott Chapman obtained
the names of several men who performed maintenance at Cook’s
home, including Appellant’s father, who did Cook’s yard work for “a
number of years.” Law enforcement officers also obtained a
photograph of Cook’s wedding ring and circulated it to local pawn
shops and jewelry stores. On October 23, Sergeant Chapman
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responded to the pawn shop after an employee determined that a
customer was attempting to pawn the same ring in the photograph.
At the pawn shop, Sergeant Chapman spoke with Lamar
Johenkins, the customer who had attempted to pawn the wedding
ring. Johenkins testified that Appellant came to his home on October
22 and sold him the ring for seven dollars. Johenkins gave the ring
to his wife, but she did not want it, so he tried to pawn the ring.
Sergeant Chapman then located Appellant and placed him
under arrest for an outstanding traffic citation. Appellant agreed to
speak with the police regarding Cook’s murder. 2 During Appellant’s
interview, which was recorded, he gave conflicting statements.
Initially, Appellant stated he had not been to Cook’s home within
the last month and had purchased the wedding ring “from a
crackhead.” However, later in the interview, Appellant stated he
went to Cook’s home to perform yard work, left to buy cigarettes,
and came back to find Cook deceased on the floor of her home. When
2 At the beginning of the interview, Appellant was read his rights under
Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966), and he
waived said rights.
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questioned further, Appellant then stated he went to Cook’s home
with a person named “Top Dog” to perform yard work. Appellant left
Cook’s home to buy cigarettes, and he came back to find “Top Dog”
exiting Cook’s home saying: “[M]an, I’m fixing to go . . . I done did
something.” Appellant then went inside Cook’s home and found her
deceased on the floor. During Appellant’s latter two versions of
events, he admitted to stealing Cook’s wedding ring, her television,
and her Cadillac; he denied stealing any other ring.
Appellant told the police that “Top Dog,” a 17 year old member
of the Bloods gang, was from the Pleasant Hill neighborhood, but it
will be “hard to find him.” The police then informed Appellant that
he was under arrest for Cook’s murder, and he was left alone in the
interrogation room. While alone, Appellant placed a phone call to his
sister. During this phone call, Appellant stated that “Terry” knows
the real name of “Top Dog,” that “Top Dog” was usually “downtown
at the bus station,” and “he just got out [of prison].” Appellant also
stated that his cousin’s girlfriend may know “Top Dog” because he
once “showed his prison [identification card] to her.” The police
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obtained Bonner’s DNA pursuant to a search warrant.
The police attempted to locate “Top Dog” by checking with their
internal gang unit, speaking to people in various neighborhoods, and
conducting patrols in Pleasant Hill. According to Sergeant
Chapman, the police were unable to locate anyone who had ever
“known anybody that goes by the specific nickname of ‘Top Dog.’” At
trial, Terry Miller, a family friend of Appellant’s, testified that he
did not know a person named “Top Dog.”
At trial, the medical examiner testified that Cook’s cause of
death was asphyxiation either by manual strangulation or by
smothering. The medical examiner also cut and collected some of
Cook’s fingernails and sent them for forensic testing. A GBI forensic
biologist testified that he swabbed underneath Cook’s fingernails
and collected DNA. He further testified that Appellant’s DNA
matched the DNA collected from underneath Cook’s fingernails and
the DNA that law enforcement collected from the steering wheel of
Cook’s Cadillac.
1. Appellant contends that his trial counsel provided
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constitutionally ineffective assistance in multiple ways. To prevail
on these claims, Appellant must demonstrate both that his trial
counsel’s performance was professionally deficient and that he was
prejudiced by this deficient performance. See Bates v. State, 313 Ga.
57, 62 (2) (867 SE2d 140) (2022) (citing Strickland v. Washington,
466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984)). To
establish deficient performance, Appellant must show that trial
counsel performed his duties in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing
professional norms. See id. Establishing deficient performance
is no easy showing, as the law recognizes a strong
presumption that counsel performed reasonably, and
[Appellant] bears the burden of overcoming this
presumption. To carry this burden, he must show that no
reasonable lawyer would have done what his lawyer did,
or would have failed to do what his lawyer did not. 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.
Vann v. State, 311 Ga. 301, 303 (2) (857 SE2d 677) (2021) (citations
and punctuation omitted).
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To establish prejudice, Appellant must prove that there is a
reasonable probability that, but for his trial counsel’s deficiency, the
result of the trial would have been different. See Bates, 313 Ga. at
62 (2). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. (citation and punctuation
omitted). “And, this burden is a heavy one.” Id. at 62-63 (2) (citation
and punctuation omitted). “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 63 (2)
(citation and punctuation omitted). “This Court accepts a trial
court’s factual findings and credibility determinations on an
ineffectiveness claim unless they are clearly erroneous, but we apply
legal principles to the facts de novo.” Powell v. State, 309 Ga. 523,
526-27 (2) (847 SE2d 338) (2020).
Appellant contends that his trial counsel provided
constitutionally ineffective assistance by failing to subpoena alibi
evidence from Georgia Power. We disagree.
At the motion-for-new-trial hearing, Appellant’s lead trial
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counsel testified that Appellant told him that “he had gone to
Georgia Power to pay a power bill” at the time of Cook’s murder.
Counsel asked his investigator “to check with [Georgia Power] to see
if they had any sort of proof that he might have been there, any sort
of receipt, or surveillance video, anything like that.” However,
counsel testified that the search “proved fruitless” and they “couldn’t
come up with anything that placed [Appellant] at [Georgia Power]
at the time” of Cook’s murder. Regarding alibi witnesses in general,
counsel stated, “We searched for alibi witnesses; we just couldn’t
find any.” Counsel was asked whether he served a subpoena on
Georgia Power and responded that he did not, but he was not asked
about why he did not do so.
“Concerning the adequacy of investigations, counsel has a
duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary, and
heavy deference is given to counsel’s judgments.” Henderson v.
State, 310 Ga. 231, 244 (3) (b) (850 SE2d 152) (2020) (citation and
punctuation omitted). The undisputed testimony at the motion-for-
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new-trial hearing was that trial counsel’s investigator searched for
evidence that Appellant was at Georgia Power during Cook’s murder
and this search “proved fruitless.”
In his appellate brief, Appellant argues that “had a subpoena
been issued [to Georgia Power] at the time of trial, exculpatory
evidence may have been obtained.” (Emphasis added.) However,
Appellant was “required to offer more than ‘mere speculation’ that
[a subpoena issued to Georgia Power] would have bolstered his
defense.” Henderson, 310 Ga. at 244 (3) (b). Here, Appellant offers
mere speculation and has failed to show that a subpoena issued to
Georgia Power would have discovered alibi evidence. Further,
Appellant has failed to show that his trial counsel’s failure to issue
the subpoena was so patently unreasonable that no competent
attorney would have followed such a course. Thus, Appellant has
failed to demonstrate that his counsel performed deficiently, and
this ineffectiveness claim fails. See id. (trial counsel did not perform
deficiently when his investigator “reach[ed] out to [potential alibi
witnesses], but they could not be found or could not testify to a
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credible alibi defense on [the defendant’s] behalf”).
2. Appellant contends that his trial counsel provided
constitutionally ineffective assistance by failing to cross-examine
Sergeant Chapman, the medical examiner, or “many of the factual
witnesses.” We disagree.
At the motion-for-new-trial hearing, Appellant’s lead trial
counsel testified that he could not recall why he cross-examined only
four of the State’s witnesses. But, counsel elaborated as follows:
[I]t’s typically my practice to cross[-]examine the witness
if I have something to cross[-]examine the witness about.
Sometimes the best thing I can do is to get them off the
stand. Sometimes there’s really nothing more to go into.
They’re sort of—if it’s a neutral witness that’s just
something that they know, there’s generally not a lot of
room for cross[-]examination.
He further testified that he did not cross-examine the medical
examiner because “it seemed like the cause of death was pretty
certain” and “[t]o go in a different direction . . . would have been
pointless.”
“The scope of cross-examination is grounded in trial tactics and
strategy, and will rarely constitute ineffective assistance of counsel.”
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Gaston v. State, 307 Ga. 634, 642 (2) (d) (837 SE2d 808) (2020)
(citation and punctuation omitted). “More specifically, the extent of
cross-examination is a strategic and tactical decision.” See id.(citation and punctuation omitted). “Decisions about cross-
examination do not amount to deficient performance unless they are
so unreasonable that no competent attorney would have made them
under similar circumstances. See id. (citation and punctuation
omitted).
In his appellate brief, Appellant argues merely that his trial
counsel performed deficiently by failing to cross-examine Sergeant
Chapman, the medical examiner, or “many of the factual witnesses.”
However, Appellant has failed to demonstrate how cross-
examination of these witnesses would have been helpful to him. See
Johnson v. State, 310 Ga. 685, 692 (3) (853 SE2d 635) (2021) (the
appellant failed to show deficient performance under Strickland
where he “does not explain, and the record does not show, how [the]
cross-examination would have been particularly helpful to him”).
Thus, Appellant has failed to demonstrate that his counsel
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performed deficiently, and this ineffectiveness claim fails.
3. Appellant contends that his trial counsel provided
constitutionally ineffective assistance by failing to present any
defense witnesses. We disagree.
Appellant has failed to articulate which witnesses his trial
counsel should have presented at trial and what their testimony
would have been. Even so, as stated in Division 1, Appellant’s lead
trial counsel testified at the motion-for-new-trial hearing, “We
searched for alibi witnesses; we just couldn’t find any.”
“[A] decision as to which defense witnesses to call is a matter
of counsel’s trial strategy and tactics and will not support a claim of
ineffective assistance of counsel unless it is so unreasonable that no
competent attorney would have made the decision under the
circumstances.” Sullivan v. State, 308 Ga. 508, 511 (2) (a) (842 SE2d
5) (2020) (citation and punctuation omitted). Here, Appellant has
failed to carry his burden to demonstrate that his trial counsel
performed unreasonably when he has failed to even articulate which
witnesses his trial counsel should have presented at trial and how
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their testimony would have been favorable to Appellant. Thus,
Appellant has failed to demonstrate that his counsel performed
deficiently by failing to present witnesses, and this claim fails.
Judgment affirmed. All the Justices concur.
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