In the Supreme Court of Georgia


                                                       Decided: June 2, 2014


                           S14A0396. HICKS v. THE STATE.

       THOMPSON, Chief Justice.

       Appellant Latilia Hicks, Leo Sanders, Darrian Pye, and Lorenzo Chambers

were jointly indicted for felony murder and numerous other crimes relating to

the shooting death of Maynon Freeman.1 Sanders pled guilty to voluntary

manslaughter and testified against the remaining defendants, who were tried

together. Appellant and Pye were found guilty on all counts, and Chambers was

found not guilty on all counts.2 In her appeal, appellant contends, among other

       1
          In a pre-trial appeal, we addressed whether the trial court erred in suppressing oral and
written statements made to the police by Pye and Chambers. We affirmed in part and reversed in
part in Pye’s case and affirmed in Chambers’s case. See State v. Pye, 282 Ga. 796 (653 SE2d 450)
(2007).
       2
         The crimes occurred on June 27, 2005. On December 27, 2005, appellant was indicted by
a Fulton County grand jury for (1) felony murder based on conspiracy to commit armed robbery,
conspiracy to commit hijacking a motor vehicle, armed robbery, hijacking a motor vehicle, and
aggravated assault with a deadly weapon; (2) aggravated assault with a deadly weapon; (3) armed
robbery; (4) hijacking a motor vehicle; (5) possession of a firearm during the commission of a
felony; (6) conspiracy to commit armed robbery; and (7) conspiracy to commit hijacking a motor
vehicle. Appellant’s jury trial began on March 17, 2008, and on March 26, the jury found appellant
guilty on all counts. That same day, the trial court sentenced appellant to life with the possibility of
parole for felony murder, to 20 concurrent years in prison for hijacking a motor vehicle, and to five
consecutive years in prison for the firearm offense. The court merged the remaining verdicts for
sentencing purposes. Appellant filed a timely motion for new trial, which she amended on January
24, 2012. That same day, the trial court held a hearing on the motion. Appellant filed a premature
notice of appeal on February 16, 2012, and premature amended notices of appeal on June 6 and 11,
things, that the evidence is insufficient to support her convictions and that her

trial counsel provided ineffective assistance. For the reasons that follow, we

affirm.

       1. Viewed in the light most favorable to the verdict, the evidence shows

that about 4:00 a.m. on June 27, 2005, the victim was shot once in the back of

the head with an AK-47 rifle shortly after he drove his family’s blue Ford

Expedition into the driveway of his family’s home at 3790 Clearwater Drive in

College Park, Georgia. A few days before, on June 23, 2005, Pye called the

Fulton County Police Department and told an officer that the rims to his car had

been stolen; that some friends of his had seen a blue Ford Expedition with what

looked like his rims on it; and that his friends followed the Expedition to a

house at 3760 Clearwater Drive in College Park, Georgia. That address,

however, was several houses away from the Freemans’ residence. The next day,

a police officer drove by that address and did not see a blue Ford Expedition

there, and the lead was not pursued thereafter.

       On June 26, 2005, appellant, who lived in Florida, came to Atlanta to visit



2012. The trial court denied the motion for new trial, as amended, on September 26, 2013. The case
was docketed in this Court for the January 2014 term and submitted for decision on the briefs.

                                                2
Sanders, with whom she had been in a long distance relationship for several

weeks. About 11:00 p.m. that night, she and Sanders met Pye and Chambers in

the parking lot of a skating rink. Sanders was friends with Pye but had not

previously met Chambers. The victim and his brother, Dominique Freeman,

were also at the skating rink, having driven there with two women in the

family’s blue Ford Expedition. Sanders testified that while he was talking with

Pye and Chambers at Pye’s car, Pye pointed out the blue Ford Expedition,

claimed that the vehicle’s rims had recently been stolen from him, and said that

he planned to recover the rims. Sanders saw an AK-47 rifle in the back seat of

Pye’s car. According to Sanders, appellant was not with him at that time but

was instead standing by her car.

      Appellant then approached the SUV by herself and began talking to

Dominique Freeman, who gave her his cell phone number, and the two agreed

to meet at the 20 Grand nightclub later that night. Appellant rejoined Sanders,

Pye, and Chambers, and they drove in Pye’s and appellant’s cars to a hotel in

College Park where appellant and Sanders were staying. There, the AK-47 was

moved from Pye’s car to the trunk of appellant’s car. Sanders testified that he

did not know how the AK-47 got into appellant’s car, but he admitted that he

                                       3
told a police officer before trial that Pye told him to open the trunk when they

were at the hotel. The four then drove appellant’s car to the 20 Grand nightclub.

The Freeman brothers were there. Appellant approached them and then left with

them and the two women who were with them in the blue Expedition. They

drove to the Freeman residence, and during the ride, appellant told Dominique

that they should have sex at a hotel. Pye, Chambers, and Sanders also left the

nightclub, drove down the street on which the Freemans lived, and then to a

nearby gas station. About 2:00 a.m., appellant left the Freeman residence with

the brothers and the two women. The two women were dropped off at a game

room, and appellant and the Freeman brothers drove to a hotel in Union City.

Sanders, Pye and Chambers followed the brothers’ SUV in appellant’s car.

Appellant and Dominique entered the hotel, while Maynon drove off in the

SUV. Cell phone records presented at trial revealed that appellant was in

communication with Sanders throughout this time.

      After Maynon left the hotel, Sanders, Pye and Chambers followed him to

a Waffle House near Maynon’s home. Maynon stopped to get food, but the

three men did not. Instead, they drove to the victim’s neighborhood and parked

two houses away from his house. Sanders testified that, “from the beginning,

                                        4
it [was] supposed to be a confrontation,” but that he did not think Maynon

would be shot. The men exited their car and walked to the Freeman residence

to wait for Maynon to arrive. When he did and was confronted by the men, he

ran. One of the men fired a shot from the AK-47, striking Maynon in the back

of the head and causing his death, and then placed the AK-47 in the trunk of

appellant’s car. Several neighbors of the Freemans heard the shot, which they

said occurred shortly after 4:00 a.m. Pye took Maynon’s keys and drove the

SUV to a middle school, while Sanders and Chambers drove appellant’s car

back to the Union City hotel.

      Back at the hotel, appellant initiated intimate contact with Dominique, but

then stopped it to talk on the phone. After speaking on the phone a number of

times, appellant told Dominique that she was going to get ice. Instead, however,

appellant met Sanders and Chambers in the parking lot and left the hotel with

them. Sanders called Pye about 5:00 a.m. to find out where Pye had gone, and

the group from the hotel then drove to the middle school. A few minutes later,

a City of Atlanta police officer who was responding to an unrelated silent alarm

going off at the school drove into the school parking lot. Sanders told appellant

to drive away while he stayed with the SUV, and Pye and Chambers fled the

                                        5
scene on foot. Appellant then picked up Pye and Chambers and dropped them

off with the gun at another location. Meanwhile, the officer, who testified that

it looked like someone was attempting to take “some wheels” off the Ford

Expedition, questioned Sanders, who gave the officer his younger brother’s

name. After dropping off Pye and Chambers, appellant returned to the school,

where she was also questioned by the officer. Finding no outstanding warrants

on Sanders or appellant and no stolen vehicle reports for either vehicle, the

officer eventually let them leave in appellant’s car and towed the SUV. The

officer’s investigation lasted about an hour, and cell phone records show that

Sanders called Pye at 6:27 a.m. After being released by the officer, Sanders and

appellant checked out of their hotel room in College Park and left for Florida.

      The police officer who spoke with Pye on June 23 about his stolen rims

also responded to the crime scene at the Freeman home on June 27. He

remembered Pye’s call and the Clearwater Drive address that Pye had provided

and told the investigating homicide officer about it. On September 29, 2005,

Pye was arrested; Chambers was arrested on October 3; and Sanders and

appellant were arrested in Florida in October and November 2005, respectively.

      At trial, Sanders denied that appellant, whom Sanders referred in a pre-

                                       6
trial statement as his “future wife,” knew of or participated in the plan to recover

Pye’s rims. However, Sanders admitted that he told the police shortly after his

arrest that “she was involved, knew what was going on, had been told to get in

the [Expedition], and report back to [him] on the [its] location.” On another

occasion, Sanders admitted that he had told police that Pye told appellant “to get

in the Expedition.”

      Appellant contends that the evidence is insufficient to support her

convictions. She correctly says that all of the crimes with which she was

charged – aggravated assault with a deadly weapon, armed robbery, hijacking

a motor vehicle, the conspiracy to commit armed robbery and hijacking a motor

vehicle, and felony murder predicated on those offenses – require the use of a

firearm. See, e.g., OCGA § 16-5-21 (a) (2) (aggravated assault with a deadly

weapon); OCGA § 16-8-41 (a) (armed robbery); OCGA § 16-5-44.1 (b)

(hijacking a motor vehicle). Appellant argues that the State had to prove that

she participated in the crimes with knowledge that one of her co-conspirators

had an AK-47 and that the State failed to offer sufficient proof of that element.

      Contrary to appellant’s contention, there is some evidence by which the

jury could infer that appellant knew of the rifle. Sanders’s prior inconsistent

                                         7
statements were that appellant had knowledge of “what was going on [and] had

been told to get in the [Expedition] and report back to [Sanders] on [its]

location.” Further, appellant did get in the Expedition; she told Dominique that

she wanted to have sex with him even though she was dating Sanders, thereby

isolating the victim and making it easier for her confederates to take back the

rims; the rifle was moved from Pye’s car to the trunk of her car at the hotel in

which she was staying; and she helped Pye and Chambers escape with the rifle

after the police officer arrived at the middle school. We need not decide

whether this and other evidence is sufficient to prove beyond a reasonable doubt

that she knew of the rifle, because appellant is wrong that she had to have

knowledge of the weapon to be convicted of the charged crimes.

      [A] criminal conspiracy is a partnership in crime, and . . . there is in
      each conspiracy a joint or mutual agency for the prosecution of a
      common plan. Thus, if two or more persons enter into a conspiracy,
      any act done by any of them pursuant to the agreement is, in
      contemplation of law, the act of each of them and they are jointly
      responsible therefor. This means that everything said, written, or
      done by any of the conspirators in execution or furtherance of the
      common purpose is deemed to have been said, done, or written by
      each of them. . . . And this joint responsibility extends not only to
      what is done by any of the conspirators pursuant to the original
      agreement but also to collateral acts incident to and growing out of
      the original purpose[, so long as] . . . they are a natural and
      probable consequence of the conspiracy.

                                         8
Everritt v. State, 277 Ga. 457, 459 (588 SE2d 691) (2003) (citations omitted;

emphasis in original). And a collateral crime is a natural and probable

consequence of the original purpose of the conspiracy if that crime is a

reasonably foreseeable consequence of the original conspiracy. See id. Thus,

we have held that:

      Where two or more persons conspire to rob another who is
      employed in a building, and one of the conspirators keeps watch or
      guard at a convenient distance while the others enter the building
      and, in furtherance of the common design to rob, kill the person
      intended to be robbed, such killing is a probable consequence of the
      unlawful design to rob, and all the conspirators are guilty of murder,
      including the one on guard. It is not necessary that the crime of
      murder should be a part of the original design; but it is enough if it
      be one of the incidental probable consequences of the execution of
      their design, and should appear at the moment to one of the
      participants to be expedient for the common purpose. The intent of
      the actual slayer is imputable to his coconspirators.

Burke v. State, 234 Ga. 512, 513 (216 SE2d 812) (1975) (citations and internal

punctuation omitted), overruled on other grounds by Hutchins v. State, 284 Ga.

395, 396-397 (667 SE2d 589) (2008). Relying on these principles, this Court

has rejected the argument that a co-conspirator to a robbery must know that his

fellow conspirator has a gun before he can be found guilty of felony murder

based on armed robbery. See Williams v. State, 276 Ga. 384, 386 (578 SE2d


                                        9
858) (2003) (holding that the defendant’s knowledge of whether his co-

conspirator had a gun “was not a necessary component of his guilt for armed

robbery and, consequently, for felony murder” and that “[a]ll that the State was

required to prove was that Appellant was a member of a conspiracy to rob the

store and that [his co-conspirator’s] use of the weapon was naturally or

necessarily done in furtherance of that crime”).3

      Here, the trial court charged the jury on these principles,4 including

      3
        The United States Supreme Court recently held that, under the federal
aiding and abetting statute, see 18 USC § 2, a person may be convicted of aiding
and abetting the federal crime of using or carrying a firearm in connection with
a drug trafficking crime, see 18 USC § 924 (c), only if he had advance
knowledge that a co-defendant would use or carry a firearm. See Rosemond v.
United States,       U.S.      ,    (134 S Ct 1240, 1248-1250, 188 LE2d 248,
261-263) (2014). That case arose under federal law and thus does not control
here. Further, the Supreme Court explicitly said that, because “no one contends
that a § 924 (c) violation is a natural and probable consequence of simple drug
trafficking[,] [w]e . . . express no view on the issue.” Id. at 1248 n.7. At least
one federal court has said that Rosemond’s advance knowledge requirement to
convict someone for aiding and abetting a § 924 (c) violation does not apply
when the government seeks to convict under the alternate theory that a
conspirator can be liable for his co-conspirator’s reasonably foreseeable use of
a firearm during a drug trafficking crime. See United States v. Young, Fed.
Appx. , , 2014 U.S. App. LEXIS 6322, 15-17 (2d Cir. N.Y. Apr. 4, 2014).
      4
          The trial court charged, among other things, that:

      Before a person may be held responsible for any act done in furtherance of a
      conspiracy that was not part of the original agreement; that is, any act that is incident
      to and grew out of the original purpose of the agreement, you must find that the act

                                                 10
reasonable foreseeability, and viewing the evidence in the light most favorable

to the verdict, we conclude that it was sufficient to authorize a rational jury to

find beyond a reasonable doubt that appellant conspired to rob the Freeman

brothers and that murder was a reasonably foreseeable consequence of the

conspiracy. The jury was authorized to find that Pye’s conspirators knew that

he was upset by the loss of his rims and that the purpose of separating the two

brothers was so that Pye, Sanders, and Chambers could confront one brother by

himself to obtain the rims. The jury was also authorized to find that the

conspirators must have been aware of the prospect that, wherever the victim

stopped after he left appellant and Dominique at the hotel, it would not be in a

place hidden from view; that to obtain the rims, the conspirators would steal the

Ford Expedition, as they would not run the risk, even late at night, of removing

four wheels from the SUV in a place where they could be easily discovered; of

the prospect that the victim would not willingly hand over the keys to the

family’s car; of the prospect that another member of the conspiracy would take

a weapon to the confrontation; and of the prospect that deadly force would be



      was a natural and probable consequence of the conspiracy. That is, the incidental act
      must have been reasonably foreseeable to the defendants.

                                               11
used to obtain the car.

      The evidence was thus sufficient to authorize the jury to find appellant

guilty beyond a reasonable doubt of the crimes of which she was convicted and

sentenced. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d

560) (1979); OCGA § 16-2-20 (parties to a crime); Williams, 276 Ga. at 386.

      2. During jury deliberations, the jury sent the court a note, saying that it

had “reached a unanimous verdict on all but three counts, 3, 4, and 6 for one

defendant,”5 and asking the court two questions:

            (1) Would a defendant have to be aware of a weapons [sic]
      presence before a crime is committed to convict the defendant of
      possession of a firearm?
            (2) During the commission of a felony when does a felony
      begin and when does a felony end?

      After some discussion, in which the State and appellant told the trial court

that it should not answer the second question and the State objected to

answering the first question, the trial court stated that it would not answer either

one. Appellant’s trial counsel then said, “I think you have to leave [both


      5
       If the dissent is correct that the jury was referring to appellant in this
statement, see dissent at 3, that means that the jury had reached a unanimous
verdict of guilty against appellant on felony murder and hijacking a motor
vehicle.
                                        12
questions] alone.” The trial court then told the parties, “I think that’s the best

thing to do.”

      Appellant now contends that the trial court erred in not charging the jury

in response to the first question.6 However, because appellant expressly told the

trial court that it should not answer the question, appellant

      invited the alleged error, and it therefore provides no basis for
      reversal. See Barnes v. State, 269 Ga. 345, 356 (496 SE2d 674)
      (1998). See also Cheddersingh v. State, 290 Ga. 680, 682-684 (724
      SE2d 366) (2012) (explaining that affirmative waiver, as opposed
      to mere forfeiture by failing to object, prevents a finding of “plain
      error” under OCGA § 17-8-58 (b)).

Shank v. State, 290 Ga. 844, 845-846 (725 SE2d 246) (2012). Accord Lake v.

State, 293 Ga. 56, 57 (743 SE2d 414) (2013) (holding that, because the

defendant told the trial court that it should not recharge the jury in response to

its request, the defendant had “waived review of this issue on appeal”); United

States v. Fulford, 267 F3d 1241, 1247 (11th Cir. 2001) (holding that a

defendant’s explicit agreement with a proposed jury instruction constituted


      6
       Although the jury specifically limited the question to the firearm
possession offense, Count 6, the dissent appears to assume that the jury was
directing the question to the aggravated assault and armed robbery counts,
Counts 3 and 4. For purposes of this opinion, we assume the jury was asking
about all counts.
                                        13
invited error). Moreover, even applying plain error review, reversal is not

warranted. Because the trial court adequately instructed the jury regarding

appellant’s liability as a conspirator for other crimes committed by her partners

in crime, we cannot conclude that the trial court’s error, if any, in declining to

answer the jury’s question “likely affected the outcome of the proceedings” and

“seriously affected the fairness, integrity, or public reputation” of the trial.

Inman v. State, 294 Ga. 650, 655 (     SE2d     ) (2014).

      3. Appellant contends that she received ineffective assistance of trial

counsel. To prevail on this claim, appellant must show that her counsel

performed deficiently and that, but for the deficiency, there is a reasonable

probability that the outcome of the trial would have been more favorable to her.

See Strickland v. Washington, 466 U.S. 668, 687, 694 (104 SCt 2052, 80 LE2d

674) (1984). “This burden, although not impossible to carry, is a heavy one.”

Young v. State, 292 Ga. 443, 445 (738 SE2d 575) (2013), and appellant has not

carried it here.

      (a) Appellant claims that trial counsel was ineffective in failing to

adequately stress the defense that she could not be convicted of any of the

crimes with which she was charged unless the State proved that she knew that

                                       14
her fellow conspirators possessed a weapon. This ineffectiveness claim has no

foundation, because, as explained above, appellant could be convicted of the

crimes in question even if she did not know about the weapon. Thus, this claim

is without merit.

      (b) At trial, appellant pursued the defense that she did not conspire with

Pye, Chambers, and Sanders to commit any crime. The dissent now asserts that

trial counsel was ineffective in pursuing this defense and in not pursuing a

different one – that appellant conspired to commit the crime of theft by taking,

which, according to the dissent, could not be a basis for her convictions.

Although appellant asserted other claims of ineffective assistance of trial

counsel in her motion for new trial, this specific claim was not asserted in that

motion, and at the hearing on the motion, appellant did not mention any claim

of ineffective assistance of trial counsel. Thus, the claim is not properly before

us. See Benson v. State, 294 Ga. 618, 622 (754 SE2d 23) (2014); Jones v. State,

294 Ga. 501, 503 (755 SE2d 131) (2014).

      Moreover, even if the claim were properly before us, it lacks merit.

“‘Judicial scrutiny of counsel’s performance must be highly deferential.’” Wells

v. State,    Ga.     ,    (    SE2d      ) 2014 Ga. LEXIS 348, *7 (Case No.

                                       15
S14A0491, decided May 5, 2014) (citation omitted). For this reason, “the law

recognizes a ‘strong presumption’ that counsel performed reasonably, and the

defendant bears the burden of overcoming this presumption.” Id. (citation

omitted). “‘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

omitted). Moreover, there are

      “countless ways to provide effective assistance in any given case.
      Even the best criminal defense attorneys would not defend a
      particular client in the same way.” Rare are the situations in which
      the “wide latitude counsel must have in making tactical decisions”
      will be limited to any one technique or approach.

Harrington v. Richter, 562 U.S.     ,   (131 SCt 770, 788-789, 178 LE2d 624,

643) (2011) (citation omitted). And, as we have explained, when, as here, “‘trial

counsel does not testify at the motion for new trial hearing about [a] subject, it

is extremely difficult to overcome’ the presumption that his conduct was

reasonable.” Shaw v. State, 292 Ga. 871 (742 SE2d 707) (2013) (citation

omitted).7

      7
        Appellant’s trial counsel died before the hearing on her motion for new
trial, but that “does not relieve the petitioner of his ‘heavy burden’ of proving
ineffective assistance.” Schofield v. Meders, 280 Ga. 865, 867 n.2 (632 SE2d
                                        16
      Here, trial counsel’s defense was that appellant did not have any motive

to enter into a conspiracy to take the rims, since she did not know Pye and

Chambers and did not have any interest in obtaining Pye’s rims; that Sanders,

whom the evidence showed had a prior criminal record and had lied to the police

in this case, was not a credible witness and had put appellant in a position to be

an unfortunate victim of circumstance on the night of the crimes; that

Dominique Freeman and appellant had seen each other at the skating rink before

the night of the crimes, thus explaining why they spoke to each other and got

together on the night of the crimes; and that, if appellant was guilty of the

conspiracy that the State alleged, she would not have driven back to the middle

school, knowing that the police officer was there speaking with Sanders about

the Ford Expedition and knowing that the officer would, as he did, ask for her

identification and run the tags on her car. In light of these circumstances, we

cannot conclude that trial counsel’s strategy was “so patently unreasonable that

no competent attorney would have followed such a course.” Wells v. State,

Ga. at    , 2014 Ga. LEXIS 348, *7.

      This is particularly true, given that the theory proposed by the dissent –


369) (2006) (citation omitted).
                                       17
that appellant actually conspired with Pye, Chambers, and Sanders to commit

a theft by taking once the victim parked the car and entered his house – would

have required the jury to believe that, although Pye, Chambers, and Sanders

discussed with appellant a detailed plan of having appellant seek to have sex

with Dominique at a hotel to attempt to get rid of the other two women in the

car, of then hoping that the victim would return home, of then waiting until he

entered the house to take the wheels off the car, and of then returning to the

hotel to pick up appellant, they did not share that the plan “from the beginning,”

as Sanders testified, was to confront the victim or that the three men had a gun.

And, such a defense also would have required trial counsel to convince the jury

that the conspirators would have agreed to a plan that would have forced them

to remove four wheels from the Ford Expedition in the Freemans’ driveway, a

public place where they might be discovered even early in the morning. The

theft-by-taking plan also would have been hard to reconcile with the fact that the

conspirators had no way to know if the victim would in fact return home after

leaving appellant and Dominique at a hotel.

      For these reasons, trial counsel did not perform deficiently in pursuing the

chosen defense strategy, and this claim of ineffective assistance of counsel lacks

                                       18
merit.

         4. Appellant contends that the trial court erred by refusing to sever her

trial from those of the other defendants. Even assuming appellant preserved this

issue for appeal,8 it is without merit.

         In a murder case where the death penalty is not sought, the trial
         court has broad discretion to grant or deny a motion for severance.
         In ruling on a severance motion, the court should consider: (1) the
         likelihood of confusion of the evidence and law; (2) the possibility
         that evidence against one defendant may be considered against the
         other defendant; and (3) the presence or absence of antagonistic
         defenses.

Billings v. State, 293 Ga. 99, 105 (745 SE2d 583) (2013) (citation omitted).

         Here, because there were only three defendants and the law and evidence

applicable to each defendant were substantially the same, there was little

likelihood of jury confusion. See Glass v. State, 289 Ga. 706, 708 (715 SE2d

85) (2011) (holding that “‘[m]erely because three defendants are tried together

is not cause for a severance’” (citation omitted)); Moon v. State, 288 Ga. 508,

510 (705 SE2d 649) (2011) (holding that “there was no likelihood of confusion


         8
       The record shows that before trial, the trial court denied a motion by
Chambers to sever his trial from that of his co-defendants. After the jury was
selected, Chambers objected to the denial of his motion, and appellant joined in
that objection. Appellant, however, never filed a motion to sever.
                                          19
by the jury as to the evidence and the law because there were only two

defendants ‘who were jointly indicted for the same offenses, which involved the

same witnesses, and the evidence indicated that they acted in concert’” (citation

omitted)). Also, the fact that the jury reached a different verdict as to Chambers

than it did with regard to appellant and Pye indicates that it was not confused by

the evidence and law. See Thorpe v. State, 285 Ga. 604, 609 (678 SE2d 913)

(2009) (“There is likewise no indication that the jury confused the evidence or

law; all three defendants were charged with identical crimes, and the jury, in

reaching different verdicts as to each co-defendant, proved itself amply capable

of distinguishing the evidence relevant to each.”). Furthermore, any confusion

represented by the jury’s question regarding whether someone had to be aware

of a weapon before she could be found guilty of possession a firearm would

have applied equally to a separate trial, and Hicks points to no evidence that was

admissible against one of her co-defendants that was not also admissible against

her. See Moon, 288 Ga. at 510 (holding that a co-conspirator’s statements

would have been admissible against the defendant in a separate trial);9 Adams


       9
         Former OCGA § 24-3-5, which was in effect at the time of appellant’s trial, provided:
“After the fact of conspiracy is proved, the declarations by any one of the conspirators during the
pendency of the criminal project shall be admissible against all.” Under the new Georgia Evidence

                                                20
v. State, 283 Ga. 298, 300 (658 SE2d 627) (2008) (holding that the acts of a co-

conspirator committed during the conspiracy were admissible against the

defendant).

       Finally, although appellant and her co-defendants did have antagonistic

defenses, “[t]hat alone . . . is insufficient to require severance, because ‘unless

there is a showing of resulting prejudice, antagonistic defenses do not

automatically require a severance.’” Herbert v. State, 288 Ga. 843, 845 (708

SE2d 260) (2011) (citation omitted). Appellant argues that she was prejudiced

by the joint trial because the evidence against her was weaker than the evidence

against her co-defendants. “However, it is not enough for the defendant to show

that he would have a better chance of acquittal at a separate trial or that the

evidence against a co-defendant is stronger. The defendant must show clearly

that a joint trial prejudiced his defense, resulting in a denial of due process.” Id.

(citations omitted). Appellant has failed to make that showing.

       Judgment affirmed. All the Justices concur, except Benham and Hunstein,

JJ., who dissent.



Code, which became effective January 1, 2013, the admission of co-conspirator statements is
governed by OCGA § 24-8-801 (d) (2) (E).

                                            21
                       S14A0396. HICKS v. THE STATE


         BENHAM, Justice, dissenting.

         I would reverse because I conclude the trial court erred in denying

appellant’s motion for new trial on the ground of ineffective assistance of trial

counsel. First, I find ineffective assistance as a result of trial counsel’s

affirmative waiver of a legal right to have the trial court recharge the jury in

response to the jury’s question: “Would a defendant have to be aware of a

weapons presence before a crime is committed to convict the defendant of

possession of a firearm?” In the course of discussing how to respond to this

question, the court, the prosecutor, and defendants’ counsel reached an

agreement that the question called for a factual conclusion that should not be

answered. In fact, the question did not call for a factual conclusion but must

reasonably be viewed as a question regarding a point of law, i.e., the

circumstances pursuant to which a defendant may be deemed culpable for the

acts of other parties to a crime or the acts of the defendant’s co-conspirators in

furtherance of the conspiracy. The question thus called for a recharge on this

issue.
      “A trial court has a duty to recharge the jury on issues for which the jury

requests a recharge, and the trial court commits reversible error if it fails to do

so.” Dill v. State, 277 Ga. 150, 151 (2) (587 SE2d 56) (2003). See also

Edwards v. State, 233 Ga. 625, 626 (22 SE2d 802) (1975); Glisson v. Glisson,

268 Ga. 164, 165 (486 SE2d 167) (1997). That the jury was adequately

instructed regarding appellant’s liability as a conspirator for the crimes

committed by her codefendants does not relieve the trial court from the duty to

recharge in this case. To hold otherwise would eviscerate the well-established

rule that a trial court has a duty to recharge when the jury so requests. The trial

court’s failure to recharge the jury on an essential element of the crimes for

which appellant was tried would be reversible but for trial counsel’s intentional

waiver of the error.

      “The necessity that the jury clearly understand the law in order to render

a lawfully arrived-at verdict renders it imperative that pertinent points of law be

repeated or clarified or both, to set the jury on the right course in the event of

questions.” Glisson, supra, 268 Ga. at 168. Included with the jury’s question

in this case was a statement that the jury still had not reached a verdict as to one

of the defendants on certain counts of the indictment, namely aggravated assault

                                         2
with a deadly weapon, armed robbery, and possession of a firearm while in the

commission of the felony of aggravated assault. Since appellant was the only

defendant for whom there was no direct evidence of knowledge that the other

defendants were in possession of a firearm, it is obvious the jury was referring

to appellant. Given the facts of this case, a rational jury could have found

appellant possessed the intent to join in a conspiracy to commit theft by taking

of the victim’s wheel rims, but not to join in a conspiracy to commit any of the

other felonies that involved possession of a firearm, because no evidence was

presented that she was aware of the rifle prior to the commission of the crimes.1

      The majority is correct that a co-conspirator to a robbery may be found

guilty of felony murder based on armed robbery even without knowledge that

her fellow conspirators had a gun when the co-conspirator had the intent to

commit robbery. See Williams v. State, 276 Ga. 384, 386 (4) (578 SE2d 858)

(2003). But Williams and other cases in which this rule has been applied

involve the defendant’s intent to engage in a conspiracy to commit robbery,

      1
          That appellant picked up Pye and Chambers, and helped them flee with
the rifle after a police officer arrived at the school parking lot where they were
apparently trying to remove the rims from the victim’s vehicle, may be evidence
that she was an accessory after the fact, but she was not charged with that crime.

                                        3
which by definition requires taking property from another person by force or

intimidation. See OCGA § 16-8-40; see, e.g., Crawford v. State, 210 Ga. App.

36 (435 SE2d 64) (1993). For that reason, “a defendant can be convicted of

armed robbery even though he might not have had knowledge that his

accomplice was going to use a weapon to perpetrate it, so long as it can be found

that use of the weapon by the accomplice was naturally or necessarily done in

furtherance of the conspiracy to commit the robbery even though not part of the

original agreement.” Crawford, supra, at 38 (1). In this case, by contrast, no

evidence was presented that appellant knowingly joined in a conspiracy to rob

the victim by confronting him or to hijack his car. Instead, the evidence was

consistent with the conclusion that appellant agreed to help her friends obtain

access to the vehicle to reclaim rims that had been stolen from her friends, and

that she did this by occupying the victim’s brother so that he got rid of the other

two women in the car, and by then getting the victim to go home for the evening

and park the car so that the others could reclaim the rims. The evidence shows

that as soon as she knew the victim had left to go home, she called Sanders.

Accordingly, unlike in Williams, a jury could have found appellant was, at most,

a conspirator to theft without finding that her accomplices’ use of a firearm was

                                        4
naturally or necessarily done in furtherance of that conspiracy.

      For that reason, appellant is entitled to a new trial on the ground of

ineffective assistance of trial counsel. The majority concludes that appellant

could be convicted of the crimes in question even if she did not know about the

weapon and that, accordingly, her claim of ineffective assistance is without

merit. But a common criminal intent is required to establish that a defendant is

a party to a crime. See Jordan v. State, 272 Ga. 395, 396 (530 SE2d 192)

(2000). Pursuant to the specific facts of this case, with no evidence that

appellant intended to engage in a conspiracy to rob the victim by force or

intimidation, it was, as in Glisson, “imperative that pertinent points of law be

repeated or clarified or both, to set the jury on the right course” since the jury

raised a question that went to the heart of her culpability for the crimes charged.

I conclude trial counsel erred by consenting to the trial court’s refusal to

recharge on these important issues and thereby waiving appellant’s right to

assert this error on appeal.

      Further, I agree with appellant that her trial counsel was ineffective in that

the record shows he did not adequately prepare her defense. Trial counsel failed

to submit requests to charge that were tailored to the facts of this case, including

                                         5
a charge on theft by taking. The only defense presented by trial counsel was that

appellant was not knowingly involved in any manner in a criminal enterprise

with her co-defendants. Given the weight of the evidence that appellant did

participate in some criminal enterprise by manipulating the victim’s activities

and keeping the other conspirators informed of the location of the vehicle and

its occupants, trial counsel performed deficiently by relying solely on this

defense. In my opinion, effective counsel would have presented a more

effective defense and a more compelling closing argument by urging that if the

jury did find appellant was involved in a conspiracy to commit a crime in this

case, they could find from the evidence that appellant was not involved in a

conspiracy to commit armed robbery but participated, if at all, only with the

intent to commit the lesser offense of theft. Applying the standard set forth in

Strickland v. Washington, I conclude the facts demonstrate appellant’s trial

counsel performed deficiently and a reasonable probability exists that, but for

these deficiencies, the outcome of the trial would have been more favorable to

the appellant.

      I am authorized to state that Justice Hunstein joins in this dissent.



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