295 Ga. 126
FINAL COPY


                       S14A0634. GRANT v. THE STATE.


       THOMPSON, Chief Justice.

       Appellant Devon Grant was convicted of malice murder and possession

of a firearm during the commission of a crime in connection with the shooting

death of Kattilius (“Deebo”) Middlebrooks.1 He appeals from the denial of his

motion for new trial, and for the reasons set forth below, we affirm.

       1. Viewed in the light most favorable to the jury’s verdict, the evidence

adduced at trial established that in December 2007, appellant and Middlebrooks

were in an apartment at Brooklyn Homes in Brunswick where, for a two dollar

entrance fee, patrons could gamble. Appellant was accused of not paying the

entrance fee and an argument ensued, during which Middlebrooks pushed his


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          The crimes occurred on December 31, 2007. Appellant was indicted by a Glynn
County grand jury on March 19, 2008, on charges of murder, felony murder, voluntary
manslaughter, and possession of a firearm during the commission of a crime. Appellant was
found guilty of all charges after a jury trial held on June 22, 24-26, 2009. He was sentenced
on June 26, 2009, to life imprisonment for the malice murder conviction and a consecutive
five-year term of imprisonment on his conviction for possession of a firearm. The remaining
charges were merged or vacated by operation of law. His motion for new trial was filed on
July 17, 2009, amended on November 19, 2012, and denied on February 13, 2013. A notice
of appeal was filed on March 8, 2013. The appeal was docketed in this Court for the April
2014 term and submitted for decision on the briefs.
hand into appellant’s face.      As appellant left the apartment, he told

Middlebrooks, “I’m going to kill you when I get back.”

      Two days later, appellant approached Middlebrooks as he played dice in

the parking lot outside of the apartment complex and shot him in the back of the

neck. A witness saw appellant walk toward Middlebrooks carrying a dark,

semi-automatic pistol and heard appellant say, “I’m going to murk him,” which

in street parlance means, “I am going to kill him.” As appellant walked away,

he stated, “I told you I was going to kill him.” Taliyah Thomas, appellant’s

cousin, testified that on the day of the shooting, appellant came home upset and

looking for his mother. She heard appellant tell his mother that he shot someone

named Deebo over a dice game. Middlebrooks was found lying in the parking

lot, where he died from a gunshot wound.

      We conclude the evidence was sufficient to enable the jury to find

appellant guilty of the crimes for which he was convicted beyond a reasonable

doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

      2. Appellant contends he was denied a fair trial because the State failed

to produce during discovery a videotaped interview of Brittany Gardner in

which Gardner stated that Ledell Ellis told her he shot Middlebrooks. See

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Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963). The State

concedes that the videotaped interview, made during the investigation of a

separate murder investigation, and a detective’s related report were inadvertently

not turned over to appellant before trial.

      To prevail on a Brady claim, appellant must show that the State possessed

evidence favorable to him, that he did not possess the evidence and could not

obtain it himself with reasonable diligence, that the State suppressed the

favorable evidence, and that, if the evidence had been disclosed to him, a

reasonable probability exists that the outcome of the proceeding would have

been different. See Kyles v. Whitley, 514 U. S. 419, 433-434 (115 SCt 1555,

131 LE2d 490) (1995); Blackshear v. State, 285 Ga. 619, 622 (680 SE2d 850)

(2009). Pretermitting the issue of whether appellant met his burden with regard

to the first three prongs of his Brady claim, we find no reversible error because

appellant has failed to show a reasonable probability that earlier disclosure of

the evidence would have produced a different outcome at trial. The defense

theory at trial was to challenge the sufficiency of the State’s evidence by

focusing on the weaknesses in the State’s case and appellant’s statement to

police that he was not in the Brunswick area when the shooting occurred.

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Although Gardner’s interview and related police report from the other shooting

were not provided to defense counsel, counsel was given a copy of the entire

police file in the Middlebrooks case, including a copy of Ellis’ interview with

police in which he denied shooting Middlebrooks, witness interviews

identifying Ellis as a possible suspect, and documents reflecting the State’s

conclusion that Ellis was not involved in the Middlebrooks shooting. Defense

counsel used this information at trial to question the lead detective about other

suspects, and more specifically, about Ellis, to which the detective responded

that Ellis was eliminated as a suspect when it was confirmed that he was not at

the scene of the shooting. Although appellant argues that his trial strategy

would have changed had he known about the Gardner interview, he presents no

evidence demonstrating how his strategy would have changed or that this

information would have led to other evidence favorable to his defense. In light

of defense counsel’s and the jury’s knowledge that Ellis had been questioned

and eliminated as a possible suspect, the testimony of an eyewitness who

identified appellant as the person who shot Middlebrooks, and appellant’s own

admission that he shot someone named Deebo over a dice game, we conclude

that there would not have been a reasonable probability of a different outcome

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at trial if appellant had been given that information. See Blackshear, supra, 285

Ga. at 622; Hester v. State, 282 Ga. 239, 242-243 (647 SE2d 60) (2007).

      3. Appellant’s claim that the trial court erred by closing the courtroom to

inquire whether the State had made a deal with a witness has not been preserved

for appeal because no objection to the closure was made at trial. See State v.

Abernathy, 289 Ga. 603, 611 (715 SE2d 48) (2011) (issue of closure may only

be raised in context of an ineffective assistance of counsel claim when no

objection to closure is made at trial).

      4. During deliberations, the jury sent several notes to the trial court. In

one, jurors asked to review a transcript of Taliyah Thomas’ testimony. The trial

court read the contents of this note to counsel and stated its intention not to give

the transcript to the jury but instead to allow the jury to hear a replay of the

testimony in the courtroom. After asking if this was agreeable to both parties

and receiving input from both sides, the trial court responded, telling jurors they

could rehear the witness’ testimony in the courtroom. The jury then sent a note

asking to also rehear investigator Scott Harrell’s testimony. The trial judge

followed the same procedure of reading the note to counsel and discussed the

amount of time it would take to replay Harrell’s testimony. The court informed

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the parties that it intended to deny the requests to rehear the testimony of both

witnesses because it feared jurors were going to want to rehear all of the

evidence and possibly cause a mistrial. To avoid this outcome, the court told the

jury that

      [t]he Court has decided not to go over again any . . . of the
      testimony. You must rely on your memory of the evidence as it was
      presented.

The jury then sent a final note to the trial court, asking:

      May we return to the courtroom to rehear the testimony and let the
      court reporter replay just Taliyah Thomas only, please, and thank
      you.

After reading this note in open court, and without eliciting a response from

either party, the court, consistent with its original ruling, informed counsel it

would respond by stating, “No.” None of the exchanged notes were marked as

exhibits, and they do not appear in the record.

      Appellant argues that the trial court violated the requirements for jury

communications laid out by this Court in Lowery v. State, 282 Ga. 68 (646

SE2d 67) (2007), by not marking the jury notes as exhibits and not providing

him a full opportunity to respond to the jurors’ requests to rehear testimony. In


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Lowery, we stated:

      In an exercise of this Court’s inherent power to maintain a court
      system capable of providing for the administration of justice in an
      orderly and efficient manner, we take this opportunity to require
      trial courts to have jurors’ communications submitted to the court
      in writing; to mark the written communication as a court exhibit in
      the presence of counsel; to afford counsel a full opportunity to
      suggest an appropriate response; and to make counsel aware of the
      substance of the trial court’s intended response in order that counsel
      may seek whatever modifications counsel deems appropriate before
      the jury is exposed to the instruction.

Id. at 76.

      It is undisputed in the present case that the jury notes were not marked as

exhibits. Their contents, nevertheless, were read into the record and are not

disputed by the parties in this appeal. Therefore, although the better practice

would have been for the trial court to mark the notes as exhibits to be included

with the appellate record, appellant has shown no harm from the trial court’s

failure to do so in this instance. See Humphreys v. State, 287 Ga. 63, 78 (694

SE2d 316) (2010) (defendant required to show harm as well as error where trial

court did not read jury note to counsel verbatim). See also Burtts v. State, 269

Ga. 402, 403-404 (499 SE2d 326) (1998) (court’s denial of jury request to

rehear testimony without notifying defendant or counsel not prejudicial to

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defendant).

      We similarly find no reversible error in the trial court’s handling of the

juror’s notes requesting to rehear the testimony of Thomas and Harrell.

Contrary to appellant’s assertion, the record shows that defense counsel was

given ample opportunity to suggest an appropriate response to the jury’s request

to rehear Thomas’ testimony and counsel, in fact, informed the court that he

preferred the court tell jurors they could not rehear this evidence. With regard

to the request for Harrell’s testimony, the record demonstrates that defense

counsel again had the opportunity to suggest an alternative response, but he

made none. The record, therefore, does not support his assertion that he was

denied an opportunity to suggest an alternative to either request. Moreover, this

enumeration of error fails because appellant has not shown what different or

further action he would have taken had the trial court followed more closely the

procedures set out in Lowery. See Humphreys, supra, 287 Ga. at 78.

      Appellant further argues that the trial court erred in refusing to allow the

jury to rehear the requested testimony. It is within the trial court’s discretion to

decide whether to allow a jury at its own instigation to rehear evidence after


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deliberations begin, and we find no abuse of that discretion in this appeal. See

Burtts, supra, 269 Ga. at 403; Byrd v. State, 237 Ga. 781, 782 (1) (229 SE2d

631) (1976).

      5. Appellant alleges on several grounds that trial counsel provided

ineffective assistance, thereby entitling him to a new trial. In order to prevail on

his claim of ineffective assistance, appellant must show both that counsel’s

performance was deficient and that the deficiency prejudiced him such that there

is a reasonable probability that, but for the deficiency, the outcome of his trial

would have been different. Strickland v. Washington, 466 U. S. 668 (III) (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). Moreover,

      a court need not determine whether counsel's performance was
      deficient before examining the prejudice suffered by the defendant
      as a result of the alleged deficiencies. The object of an
      ineffectiveness claim is not to grade counsel's performance. If it is
      easier to dispose of an ineffectiveness claim on the ground of lack
      of sufficient prejudice, which we expect will often be so, that course
      should be followed.

Strickland, supra, 466 U. S. at 697. In reviewing a claim of ineffective


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assistance, we give deference to the trial court’s factual findings and credibility

determinations unless clearly erroneous, but we review a trial court’s legal

conclusions de novo. Sanford v. State, 287 Ga. 351, 356 (695 SE2d 579)

(2010).

      (a) Appellant contends trial counsel provided ineffective assistance by

failing to raise a Batson challenge to the State’s use of its peremptory strikes.

See Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986). In

support of his claim, he argues that because he is African-American and the jury

was comprised of eleven white members and one African-American member,

counsel was deficient for failing to make a Batson challenge.

      “To succeed on [his] claim of ineffective assistance, [appellant] was

required to show not only that trial counsel should have raised a Batson

challenge, but also that the challenge would have been successful.” Pierce v.

State, 286 Ga. 194, 199 (686 SE2d 656) (2009). The burden of ensuring that the

trial court had sufficient information before it to rule on a Batson challenge

rested on appellant because the challenge is being raised in the context of a

claim of ineffectiveness. See Stokes v. State, 289 Ga. 702, 704 (715 SE2d 81)


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(2011); Pierce, supra, 286 Ga. at 200. The record demonstrates, however, that

appellant failed to present to the trial court evidence of any kind pertaining to

the State’s use of its peremptory strikes. The only question asked of trial

counsel at the motion for new trial hearing pertaining to the Batson issue was

why counsel did not raise a Batson challenge, to which trial counsel responded,

“I didn’t . . . believe . . . that the strikes that were made were based on a race

basis. . . . I didn’t feel that the strikes that were being used by the State

warranted that type of challenge.” Appellant’s conjecture, based solely on the

ultimate composition of the jury, is, by itself, insufficient evidence of purposeful

discriminatory intent. See Livingston v. State, 271 Ga. 714, 718 (524 SE2d

222) (1999) (“Even though ‘circumstantial evidence of invidious intent may

include proof of disproportionate impact,’ numbers alone may not establish a

disproportionate exercise of strikes sufficient to raise a prima facie inference

that the strikes were exercised with discriminatory intent. [Cit.]”). See also

Mitchell v. State, 275 Ga. 42, 45 (561 SE2d 803) (2002); Whitaker v. State, 269

Ga. 462, 464 (499 SE2d 888) (1998). Because appellant failed to carry his

burden of establishing a prima facie case of purposeful discrimination, the trial


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court did not err by denying his claim of ineffectiveness based on counsel’s

failure to raise a Batson challenge.

      (b) Appellant’s claim that trial counsel was ineffective by failing to object

to the trial court’s denial of his request to charge the jury on leniency in charges

or sentence similarly fails. The trial court refused to give the requested leniency

charge because no evidence of a grant of immunity or promise of leniency in

exchange for a witness’ testimony was presented at trial.

      A requested charge must be legal, apt, and precisely adjusted to
      some principle involved in the case and be authorized by the
      evidence. If any portion of the request to charge fails in these
      requirements, denial of the request is proper.

(Punctuation, footnotes and emphasis omitted.) Lane v. State, 268 Ga. 678, 680

(492 SE2d 230) (1997). In the absence of any evidence supporting the

requested charge, the trial court did not err by refusing to give it. See id.;

Stokes v. State, 281 Ga. 875, 877 (644 SE2d 116) (2007); Harris v. State, 274

Ga. 422, 426 (554 SE2d 458) (2001). Trial counsel’s failure to raise a meritless

objection is not evidence of ineffective assistance. See Hayes v. State, 262 Ga.

881, 884-885 (426 SE2d 886) (1993).

      Moreover, even assuming counsel was deficient in failing to object to the

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denial of this request to charge, appellant has failed to establish ineffective

assistance because the second prong of Strickland has not been met. Because

there was no evidence of a deal or leniency toward a witness at trial, we cannot

conclude there is a reasonable likelihood that the omission of the requested

charge affected the outcome of the proceedings.

       (c) Finally, appellant argues that trial counsel provided ineffective

assistance by failing to adequately prepare for trial, and more specifically,

failing to interview potential witnesses. Even assuming, arguendo, that defense

counsel’s preparation constituted deficient performance, appellant has failed to

show that counsel’s performance prejudicially affected him.2 See Goodwin v.

Cruz-Padillo, 265 Ga. 614, 614-615 (458 SE2d 623) (1995).                                 Appellant

presented no evidence of what further investigation by counsel would have

revealed and failed to identify any witness not interviewed by defense counsel

whose testimony would have been favorable to appellant. Absent a proffer of

what evidence would have been discovered had other witnesses been


       2
          At the hearing on a motion for new trial, appellant’s trial counsel testified that he spoke to
appellant for many hours prior to trial, reviewed the State’s files, and subpoenaed appellant’s mother
and Officer Wan Thorpe to testify at trial. Counsel also testified that he attempted to contact other
potential witnesses by telephone, but he was unable to reach them.

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interviewed, appellant cannot show that the failure to interview them affected

the outcome of trial. See id. Accordingly, his claim of ineffectiveness on this

asserted ground fails.

      Judgment affirmed. All the Justices concur.



                           Decided April 22, 2014.

      Murder. Glynn Superior Court. Before Judge Lane.

      Earle J. Duncan III, for appellant.

      Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant

District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway

Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Katherine L. Iannuzzi, Assistant Attorney General, for appellee.




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