In the Supreme Court of Georgia



                                                 Decided: May 9, 2016


                     S16A0255. EDWARDS v. THE STATE.


       BLACKWELL, Justice.

       Phirronnius Edwards was tried by a Colquitt County jury and convicted

of murder and the unlawful possession of a firearm during the commission of

a felony, both in connection with the fatal shooting of Billy Hewitt. Edwards

appeals, contending that the evidence is insufficient to sustain his convictions,

that he was denied the effective assistance of counsel, and that the trial court

mishandled a note from the jury. Upon our review of the record and briefs, we

see no error, and we affirm.1


       1
         Hewitt was killed on September 23, 2011. Edwards and Michael Russell were
indicted on March 20, 2012, and they were charged with felony murder, armed robbery, and
two counts of unlawful possession of a firearm during the commission of a felony. Russell
pled guilty to armed robbery and testified for the State at the trial of Edwards, which
commenced on December 3, 2012. The jury returned its verdict two days later, finding him
guilty on all counts. Edwards was sentenced to imprisonment for life for felony murder and
a consecutive term of imprisonment for five years for one count of unlawful possession of
a firearm during the commission of a felony. The trial court merged the remaining counts of
armed robbery and unlawful possession of a firearm during the commission of a felony into
the crimes for which Edwards was sentenced. On December 21, 2012, Edwards timely filed
a motion for new trial, which he later amended twice. The trial court denied Edwards’s
      1. Viewed in the light most favorable to the verdict, the evidence shows

that Edwards needed money, and he and Michael Russell planned to rob Hewitt,

who worked with Russell at a beef processing plant. On the evening of

September 22, 2011, Russell and Hewitt were working on the late shift. Just

before midnight, Russell left the plant and met Edwards near a convenience

store that was located about 400 feet outside the gate of the plant. Russell left

his car parked just down the road from the store, dropped off Edwards at the

store, and drove Edwards’s silver Dodge Neon back to the plant. When Hewitt

left work around 12:25 on the morning of September 23, Russell followed him

at some distance to a Chevron gas station — picking up Edwards along the way

— and waited in the parking lot while Hewitt purchased some items in the gas

station. Hewitt then headed home, and Russell followed, still accompanied by

Edwards. As they followed Hewitt to his home, Russell noticed that Edwards

had a nine millimeter pistol.

      After Hewitt reached his home and turned into the driveway, Russell

stopped the car, and Edwards walked to the back of Hewitt’s house. Russell

motion for new trial on June 17, 2015, and Edwards timely filed a notice of appeal on July
15, 2015. The case was docketed in this Court for the January 2016 term and was submitted
for decision on the briefs.

                                            2
subsequently heard two gunshots, and Edwards ran back to the car and pulled

out some cash and a bank card with Hewitt’s name on it. Hewitt was able to run

across the street for help, wake the neighbors around 12:50 a.m., and tell a

responding officer that he did not know who had shot him. Hewitt later died,

however, from a gunshot wound to his abdomen. Meanwhile, Russell and

Edwards returned to Russell’s car, drove their cars to an apartment, and went

back to the Chevron in Russell’s car and then on to a Waffle House restaurant.

Two nine millimeter shell casings and one bullet were found in Hewitt’s yard.

      Edwards argues that the evidence is insufficient to sustain his convictions

because Russell’s testimony implicating him in the armed robbery and killing

of Hewitt was not sufficiently corroborated by other admissible evidence. As we

have often explained,

      in Georgia, a felony conviction cannot be sustained solely by the
      uncorroborated testimony of an accomplice. That said, sufficient
      corroborating evidence may be circumstantial, it may be slight, and
      it need not of itself be sufficient to warrant a conviction of the crime
      charged. It must, however, be independent of the accomplice
      testimony and must directly connect the defendant with the crime,
      or lead to the inference that he is guilty. Slight evidence from an
      extraneous source identifying the accused as a participant in the
      criminal act is sufficient corroboration of the accomplice to support
      a verdict.


                                         3
McKibbins v. State, 293 Ga. 843, 846 (1) (750 SE2d 314) (2013) (citations and

punctuation omitted). See also former OCGA § 24-4-8 (in “felony cases where

the only witness is an accomplice, the testimony of a single witness is not

sufficient” and must be supported by the testimony of another witness or by

“corroborating circumstances”).2 Moreover, although the timing and details of

the crime are not alone sufficient to satisfy the requirement of additional

evidence, they may “serve as corroborating circumstances if they are directly

linked to the identity of the defendant as the perpetrator of the crime on trial.”

Lindsey v. State, 295 Ga. 343, 347 (3) (760 SE2d 170) (2014). “And even

though evidence of motive without more is insufficient to corroborate the

testimony of an accomplice, it can be considered in the determination of whether

an accomplice’s version of events inculpating a defendant is corroborated.” Id.

(citations and punctuation omitted). Cf. Gilmore v. State, 315 Ga. App. 85, 91




       2
         This case was tried under the old Evidence Code, see Ga. L. 2011, p. 99, § 101, and
for that reason, we cite former OCGA § 24-4-8. We note, however, that the provisions of
former OCGA § 24-4-8 were carried forward into the new Evidence Code and now can be
found at OCGA § 24-14-8. See Bradshaw v. State, 296 Ga. 650, 654 (2) (769 SE2d 892)
(2015) (“we give the new accomplice provision the same meaning as the old one”) (citations
omitted).

                                             4
(1) (d) (726 SE2d 584) (2012) (“mere motive is not sufficient corroboration”

(citations omitted)).

      In this case, Edwards admitted that he talked with Russell by cell phone

on September 23, 2011 at 12:03 a.m. and 12:08 a.m., that a call was made from

his cell phone to his girlfriend at 12:05 a.m. (even though Edwards said that he

was with her until after 12:30 a.m.), and that he met Russell a little after 1:00

a.m. See Rivers v. State, 296 Ga. 396, 398 (1) (768 SE2d 486) (2015)

(“accused’s own testimony may be used to corroborate an accomplice’s

testimony against him” (citation omitted)); Crawford v. State, 294 Ga. 898, 901

(1) (757 SE2d 102) (2014) (cell phone records showing calls between the

defendant and the accomplice on the morning of the crimes were part of the

corroborating circumstantial evidence of the defendant’s participation).

Evidence independent of Russell’s testimony — specifically, testimony from the

county tax commissioner — proved that Edwards owned a silver Dodge Neon,

and surveillance video from the Chevron showed a Dodge Neon in the parking

lot just minutes before commission of the crimes. See Terrell v. State, 271 Ga.

783, 786 (3) (523 SE2d 294) (1999) (corroborating circumstances included the

accomplice being seen driving the defendant’s car near the victim’s house

                                       5
around the time of the crime). Cf. Hill v. State, 236 Ga. 831, 833 (225 SE2d

281) (1976) (no testimony except the accomplice’s that grey ski mask like the

one used in robbery belonged to the defendant). Other evidence showed that

Edwards had financial problems and, therefore, had a motive for robbery. See

Lindsey, 295 Ga. at 347 (3); Terrell, 271 Ga. at 786 (3). And after Russell was

arrested, the Georgia Bureau of Investigation recorded a phone call in which

Edwards told Russell that he had not used the bank card. Although Hewitt’s

name was not mentioned in that phone call, it nevertheless amounted to at least

slight evidence that Edwards possessed the victim’s property, and so it provided

additional corroboration of Edwards’s participation in the crimes. See

McDonald v. State, 296 Ga. 643, 645 (1) (770 SE2d 6) (2015) (possession of

necklace worn by the victim was a corroborating circumstance). We conclude

that the testimony given by Russell at trial was sufficiently corroborated to

sustain the convictions. And in all, the evidence was sufficient to authorize a

rational jury to find beyond a reasonable doubt that Edwards was guilty of the

crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319

(III) (B) (99 SCt 2781, 61 LE2d 560) (1979).



                                       6
      2. Edwards contends that he was denied the effective assistance of counsel

because his trial lawyer failed, he says, to adequately impeach Russell with

evidence of his plea agreement in this case. To prevail on a claim of ineffective

assistance, Edwards must prove both that the performance of his lawyer was

deficient and that he was prejudiced by this deficient performance. Strickland

v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

To prove that the performance of his lawyer was deficient, Edwards must show

that she performed her duties at trial in an objectively unreasonable way,

considering all the circumstances, and in the light of prevailing professional

norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U. S.

365, 381 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986). And to prove that he was

prejudiced by the performance of his lawyer, Edwards must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694

(III) (B). See also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SCt 1495,

146 LE2d 389) (2000). This burden is a heavy one, see Kimmelman, 477 U. S.

at 382 (II) (C), and we conclude that Edwards has failed to carry it.

                                       7
      Before Russell testified, the trial court addressed him in the presence of

the jury, and he confirmed that he had pled guilty in this case. On direct

examination, Russell testified that he had pled guilty to the armed robbery of

Hewitt but had not yet been sentenced. Edwards’s lawyer thoroughly cross-

examined Russell about his prior inconsistent statements to law enforcement,

she then specifically questioned him about his subsequent guilty plea, and he

affirmed that he was not pleading guilty to felony murder or the unlawful

possession of a firearm during the commission of a felony, but only to armed

robbery. Edwards’s lawyer then questioned Russell as to whether his testimony

at trial was aimed at getting himself out of trouble and whether it amounted to

an attempt to help himself. During her closing argument, Edwards’s lawyer

followed up by reminding the jury that Russell had pled guilty to armed robbery

and that felony murder and unlawful possession of a firearm during the

commission of a felony had been taken off the table, and she told the jurors that

they had to look at whether that was a powerful enough incentive for Russell to

come and tell them something that was not true.

      Edwards claims that his lawyer failed to elicit specific testimony from

Russell that he had been charged in the same indictment with the same offenses

                                       8
as Edwards, that the State had agreed to dismiss the felony murder charge in

exchange for Russell’s testimony, and that he faced only a ten-year mandatory

minimum sentence for armed robbery instead of the mandatory life sentence for

felony murder. “But decisions about what questions to ask on cross-examination

are quintessential trial strategy and will rarely constitute ineffective assistance

of counsel. In particular, whether to impeach prosecution witnesses and how to

do so are tactical decisions.” Henry v. State, 297 Ga. 74, 77 (2) (c) (772 SE2d

678) (2015) (citations and punctuation omitted). “Although an attorney is

permitted to thoroughly question a testifying co-defendant regarding the details

of any plea agreement, it does not necessarily follow that counsel is ineffective

for failing to elicit all details of the agreement.” Curtis v. State, 330 Ga. App.

839, 845 (1) (d) (769 SE2d 580) (2015) (citation omitted). “As trial counsel

obtained testimony from [Russell] that he had substantial motivation to testify

against [Edwards], we cannot say that [her] failure to ask about specific effects

of the plea deal was patently unreasonable.” Holder v. State, 319 Ga. App. 239,

249 (3) (b) (736 SE2d 449) (2012) (citations omitted). See also Romer v. State,

293 Ga. 339, 344 (3) (745 SE2d 637) (2013) (strategic and tactical decisions,

like those about the extent of cross-examination, “will not form the basis for an

                                        9
ineffective assistance of counsel claim unless it was so patently unreasonable

that no competent attorney would have chosen it” (citation and punctuation

omitted)); Crider v. State, ___ Ga. App. ___, ___ (3) (b) (Case Number

A15A1922, decided March 7, 2016); Curtis, 330 Ga. App. at 845 (1) (d).

Although Edwards also complains that his lawyer failed to obtain admission of

documentary evidence of Russell’s guilty plea, we cannot say that this failure

was patently unreasonable either when, as a result of Russell’s testimony, the

jury was informed of the plea and “provided with evidence that [Russell] was

potentially biased and had motivation to testify against [Edwards].” Curtis, 330

Ga. App. at 845 (1) (d) (footnote omitted). Moreover, for the same reasons,

Edwards has failed to show a reasonable probability that, if more details about

Russell’s guilty plea had been presented to the jury, the outcome of the trial

would have been different.

       3. Citing Lowery v. State, 282 Ga. 68, 74-76 (4) (b) (ii) (646 SE2d 67)

(2007), Edwards complains that the trial court failed to inform his lawyer of the

content of a note from the jury indicating that the jury was “deadlocked.”3 It is

       3
        In its entirety, the note, which was signed by the jury foreperson, read as follows:
“This jury is deadlocked 11-1 on all charges. We CANNOT move beyond this point based
on the evidence presented. Please Advise.”

                                            10
undisputed that the trial court recessed for lunch when it received the note, and

when it later reconvened, the court addressed both Edwards’s lawyer and the

prosecuting attorney on the record, saying that “the jury has sent a note, and I

think from reading the note and taking a break, I’m going to give what’s called

the Allen charge at the present time, once they come back in.” Neither party

objected at that time, and when the Allen charge4 had been given and the jury

again sent away to deliberate, both parties confirmed explicitly that they had no

exceptions or objections to the charge. In these circumstances, Edwards cannot

be heard to complain that the trial court failed to disclose the content of the note.

See Daniel v. State, 292 Ga. App. 560, 561 (1) (665 SE2d 696) (2008).

       That complaint is without merit in any event. At the first hearing on

Edwards’s motion for new trial, his trial lawyer testified that she did not see the

jury’s note during the trial, nor was she informed of its contents. But at a

subsequent hearing,5 the prosecuting attorney testified that, before the trial



       4
           See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896).
       5
        The trial court held a second hearing pursuant to the State’s request to reopen the
motion for new trial to present further testimony and evidence. The court was authorized to
reopen the evidence on motion for new trial to hear additional testimony on this matter. See
Lewis v. State, 277 Ga. 534, 539 (3) (592 SE2d 405) (2004).

                                             11
court’s lunch recess, he and Edwards’s lawyer had met with the judge in his

chambers, and the jury’s note was read and discussed. In its order denying the

motion for new trial, the trial court expressly credited this testimony and found

that Edwards’s lawyer “was present for the reading of the jury note, was aware

of the contents of the note, and had ample opportunity to ask for the discussions

in chambers to be put on the record along with the opportunity to object to the

Allen charge or any other handling of the note.” That finding is not clearly

erroneous, and the trial court did not mishandle the note from the jury.6

       Judgment affirmed. All the Justices concur.




       6
          In the alternative, Edwards argues that his lawyer was ineffective to the extent that
she failed to object to the Allen charge and request that the trial court instead declare a
mistrial due to the “deadlocked” jury. Edwards has failed to show, however, that the Allen
charge was impermissibly coercive, see Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305)
(2012), and he likewise has failed to show that a mistrial was required. See McKee v. State,
277 Ga. 577, 579 (5) (591 SE2d 814) (2004). Because there has been no showing that the
Allen charge was objectionable or that a mistrial was necessary, Edwards has failed to
support this claim of ineffective assistance by demonstrating any deficient performance by
his trial lawyer or any prejudice as a result of that deficiency. See Scott, 290 Ga. at 890 (7)
(d); Sharpe v. State, 288 Ga. 565, 570 (8) (707 SE2d 338) (2011); Hampton v. State, 279 Ga.
625, 629 (9) (619 SE2d 616) (2005).

                                             12
