In the Supreme Court of Georgia



                                                      Decided:       March 21, 2016


                        S15A1738. BRYANT v. THE STATE.


       BENHAM, Justice.

       Appellant Vonterry Bryant appeals his convictions stemming from the

death of Edward Hawkins and the aggravated assault of Allen Cook.1 On the

night in question, Hawkins, Cook, and Mitchieno Carmichael were at a sports

bar and, while there, Hawkins and appellant got into an argument regarding a

woman. Due to the crowd’s raucous behavior, the bar’s owner closed the bar
1
 The crimes occurred on February 5, 2005. A Richmond County grand jury returned a true bill of
indictment against appellant on June 28, 2005, charging him with malice murder, felony murder,
aggravated assault, two counts of possession of a firearm during the commission of a crime, and
possession of a firearm by a convicted felon. Appellant was tried before a jury from October 11,
2005 to October 12, 2005. The jury returned guilty verdicts on all counts in the indictment. The
trial court sentenced appellant to life in prison for malice murder, ten years for aggravated assault
to be served concurrently to the life sentence, and five consecutive years each for the three
possession charges. The felony murder count was vacated as a matter of law. Appellant moved
for a new trial on November 15, 2005, and amended the motion through new counsel on August
15, 2006, and on April 30, 2007. The trial court held hearings on the motion, as amended, on
May 2, 2007, and July 10, 2007. The trial court denied the motion for new trial on October 18,
2007. On February 6, 2008, appellant filed a pro se motion for an out-of-time appeal. The trial
court appointed appellant several new attorneys between May 2008 and April 2013. Appellant’s
present counsel entered an appearance in June 2013 and again moved for an out-of-time appeal
which the trial court granted on December 3, 2013. Appellant filed a notice of appeal on
December 20, 2013. The appeal is docketed to the September 2015 Term of this Court and has
been submitted for a decision to be made on the briefs.
and sent all patrons outside. As Cook and Hawkins were leaving the bar,

appellant approached them and brandished a gun. Cook and Hawkins ran and

appellant gave chase, shooting Hawkins2 and striking Cook with the gun. One

witness testified that appellant left the scene in a white four-door car and another

witness testified that, after the shootings, appellant told her he shot Hawkins and

that he would have also shot Cook had his gun not jammed. Hawkins died from

the gunshot wounds.

       1. The evidence adduced at trial and summarized above was sufficient to

authorize a rational trier of fact to find appellant guilty beyond a reasonable

doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S.

307 (99 SCt 2781, 61 LE2d 560) (1979).

       2. During trial, appellant became aware that Cook and Carmichael had

outstanding warrants pending against them. Appellant complained and moved

for a mistrial, arguing that the State had violated Brady and Giglio by failing to

disclose the warrants.

       The suppression by the prosecution of evidence favorable to an
       accused upon request violates due process where the evidence is

2
 The evidence indicates appellant fired eight shots from the gun, hitting Hawkins three times:
two shots to the back and one shot to the elbow.

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       material either to guilt or to punishment, irrespective of the good
       faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S.
       83, 87 (83 SCt 1194, 10 LE2d 215) (1963). This includes the
       suppression of impeachment evidence that may be used to challenge
       the credibility of a witness. See Giglio v. United States, 405 U.S.
       150, 154–155 (92 SCt 763, 31 LE2d 104) (1972). [Cits.] To prevail
       on a Brady claim, [appellant] was required to show that

       (1) the State possessed evidence favorable to his defense; (2) he did
       not possess the favorable evidence and could not obtain it himself
       with any reasonable diligence; (3) the State suppressed the
       favorable evidence; and (4) had the evidence been disclosed to the
       defense, a reasonable probability exists that the outcome of the trial
       would have been different. [Cits.]

(Punctuation omitted.) Danforth v. Chapman, 297 Ga. 29 (2) (771 SE2d 886)

(2015).

       Here, appellant cannot establish a Brady/ Giglio violation because he was

able to obtain the evidence himself. From the record, it appears that the

prosecution was unaware of the warrants because it had not performed criminal

background checks of the two witnesses in question.3 The defense obtained the

information on its own accord. Specifically, at trial, defense counsel informed

the trial court that he had found out about the warrants from the defense

investigator. This assertion by counsel was corroborated during the motion for

3
 The record also shows the warrants were issued after the State had provided discovery to
appellant about a month before trial.

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new trial hearing when the defense investigator testified he discovered

outstanding warrants against Cook while conducting a jailhouse interview of

Cook, who was in jail on an unrelated matter.

      Nevertheless, in response to appellant’s request for a mistrial and as a way

of mitigating the late discovery of the information, the trial court allowed

appellant broad leeway to cross-examine Cook and Carmichael, as well as the

investigators on the case, about the outstanding warrants. During his cross-

examination, appellant was able to establish that neither Cook nor Carmichael

had been arrested on the warrants and counsel was able to imply that the two

might be receiving such favorable treatment in exchange for their testimony

against appellant. Since there was no violation of Brady or Giglio, the trial

court did not abuse its discretion when it declined to grant a mistrial. This

allegation of error is without merit.

      3. Appellant alleges the trial court erred when it allowed the admission

of photographic lineups in which witnesses identified appellant as the shooter.

The record shows that authorities presented photographic lineups to Cook,

Carmicheal, and Karessa Johnson, who were all witnesses for the State. The

three were shown two different photographic lineups which were generated by

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two different investigators working on the case. While investigator Fanning

testified that he only showed witnesses one lineup, the other investigator who

also generated a lineup in the case did not testify at trial. Both lineups contained

a photograph of appellant, albeit in different positions among the other

photographs. All three of these witnesses testified that authorities did not

influence them as to which, if any, photograph to select. All three of these

witnesses made an in-court identification of appellant as the shooter. At trial,

appellant objected to the admission of the photographic lineups on the grounds

that they would “unnecessarily highlight the photographs” and unnecessarily

highlight the testimony of the victim Cook. The trial court overruled the

objections.

      Angela Askew, who owned the sports bar and who was a witness for the

defense, testified she did not see the shooting in question. However, sometime

during the events of that night, she saw a young man come into her bar with a

silver gun. Askew testified that she knew appellant and that he was not the

person who entered the bar with the silver gun. Askew said authorities showed

her two photographic lineups with appellant’s picture. She testified that an

investigator asked her three times, while “pointing at the photo,” whether the

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man she saw in the bar with the silver gun was appellant and she responded in

the negative, not identifying anyone in the lineups presented to her. The parties

did not ask Askew to make an in-court identification of appellant.

      On appeal, appellant contends the lineups were tainted and impermissibly

suggestive, leading to the misidentification of appellant. We disagree.

      An unduly suggestive procedure is one which leads the witness to
      the virtually inevitable identification of the defendant as the
      perpetrator, and is equivalent to the authorities telling the witness,
      “This is our suspect.” Where the identification procedure is not
      unduly suggestive, it is not necessary to consider whether there was
      a substantial likelihood of irreparable misidentification.

(Punctuation omitted.) Williams v. State, 290 Ga. 533 (2)(a) (722 SE2d 847)

(2012). The lineup procedure in this case was not unduly suggestive.

      Each lineup contained six pictures arranged in two rows of three and

numbered one through six. Each lineup had an identification number. Each

witness was given a preprinted form with instructions on how to make an

identification, if any. Using the preprinted form, the three State witnesses wrote

their initials under the number that corresponded with the photograph of the

person they recognized. The preprinted forms included the signatures of the

witness and the investigator, the date and time of the identification, and the


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lineup identification number. The three State witnesses were unequivocal in

their pretrial identifications and they all confirmed that they were not unduly

influenced by investigators.

       Defense witness Askew likewise was uninfluenced by authorities because

she made no identification of appellant, staying true to her statements and

testimony that the person who entered her bar with a silver gun was not

appellant. Askew did not make any in-court identification of appellant, she did

not witness the shooting, and the jury was free to weigh her testimony as it did

the other identification witnesses. The photographic lineup procedure here was

not suggestive as to the witnesses who made in-court identifications of

appellant; and so we need not reach the issue of whether there was an irreparable

misidentification at trial.4 Id. There was no reversible error.

       4. In order to prevail on a claim of ineffective assistance of counsel,

appellant




4
 As for the testimony of Audrey McNair, who was equivocal about her in-court identification of
appellant, her equivocation was not evidence that the lineup procedure was suggestive. McNair
did not say that anyone influenced her when she was presented with a photographic lineup. In
any event, the jury was free to weigh her equivocal in-court identification along with all the other
identification evidence in the case.

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      must show counsel's performance was deficient and that the
      deficient performance prejudiced him to the point that a reasonable
      probability exists that, but for counsel's errors, the outcome of the
      trial would have been different. A strong presumption exists that
      counsel's conduct falls within the broad range of professional
      conduct.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644

SE2d 837 (2007). If a defendant fails to meet his burden on one prong of the

two-prong test, then the other prong need not be reviewed by the Court. Wright

v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). Appellant cannot meet

his burden to show ineffective assistance.

      a. First, appellant contends counsel was ineffective for failing to discover

outstanding warrants pretrial. This allegation is of no moment because appellant

was not prejudiced. When counsel learned of the warrants during trial, he

obtained the trial court’s permission to extensively cross-examine Cook and

Carmichael about the warrants and, through that cross-examination, was able to

suggest to the jury that the two witnesses were not arrested on the warrants

because they were testifying for the State. Having the information pretrial might

have been more convenient for the defense, but appellant cannot show that the

outcome of the trial would have been different. Therefore, this allegation of


                                        8
error cannot be sustained.

          b. Appellant contends counsel rendered ineffective assistance when he

failed to obtain fifty pages of missing discovery. Appellant has not shown what

was in the missing pages or how not having access to these missing pages

prejudiced him at trial. This allegation is without merit.

          c. Appellant complains counsel did not investigate his alibi witnesses. At

the motion for new trial hearing, co-counsel5 and the defense investigator both

testified that the they did in fact investigate appellant’s alibi witnesses. The first

alibi witness, who was appellant’s brother, claimed he did not know appellant

and would not talk to the defense investigator. The second alibi witness would

have provided unhelpful information. Specifically, appellant told his trial

counsel he left the club with the first alibi witness before the shooting occurred;

however, the second alibi witness would have testified appellant was present for

the shooting but was not the shooter. It was not unreasonable for trial counsel

to make a strategic decision declining to put forward an uncooperative alibi

witness or an alibi witness who would have provided conflicting testimony. See



5
    The lead counsel was deceased by the time of the motion for new trial hearing.

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Andrews v. State, 293 Ga. 701 (2) (749 SE2d 734) (2013). No deficient

performance is shown.

     Judgment affirmed. All the Justices concur.




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