In the Supreme Court of Georgia


                                             Decided: November 3, 2014


                   S14A1573. POELLNITZ v. THE STATE.


      MELTON, Justice.

      Following a jury trial, Joseph Leroy Poellnitz, Jr., was found guilty of

malice murder, felony murder, aggravated assault, possession of a firearm by a

convicted felon, and possession of a firearm during the commission of a felony.1

On appeal, Poellnitz contends that the trial court made a number of improper

evidentiary rulings and that he received ineffective assistance of counsel. For the

      1
          On July 19, 2010, Poellnitz was indicted for malice murder, two counts
of felony murder, aggravated assault, possession of a firearm by a convicted
felon, and possession of a firearm during the commission of a felony. Following
a jury trial, Poellnitz was found guilty of all counts on July 22, 2010. That same
day, the trial court sentenced Poellnitz to life imprisonment for malice murder,
five consecutive years for possession of a firearm during the commission of a
felony, and five additional years for possession of a firearm by a convicted felon
to run consecutively to murder and concurrently to the other count of firearm
possession. The count of aggravated assault was merged with the murder count,
and the two counts of felony murder were vacated by operation of law. Malcolm
v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). Poellnitz’s motion for new
trial, filed on August 9, 2010 and amended on March 23, 2012, was denied by
the trial court on September 4, 2013. After the filing of a timely notice of appeal,
Poellnitz’s case was docketed to the September 2014 Term of this Court and
orally argued.
reasons set forth below, we affirm.

      1. In the light most favorable to the verdict, the record shows that, on

August 4, 2009, Alpha Lorenzo Booker was shot and killed. The day before the

murder, Poellnitz, Booker, and Maisha Wright, who has two children with

Poellnitz, were running errands. Afterwards, Poellnitz and Booker took Wright

to the apartment complex where she and Poellnitz lived. Poellnitz and Booker

then left together, and, later that night, Poellnitz returned in an agitated state.

Poellnitz went outside, and Wright followed. Booker jumped out of his truck

and onto a red car where he smashed the windshield with his foot. At that point,

Wright witnessed Poellnitz pull out a gun and shoot Booker. Poellnitz

immediately drove away in his green Ford Expedition. Police later received

multiple tips that a green Ford Expedition had been seen leaving the apartment

parking lot shortly after the shooting. Those tips were corroborated by the

security cameras.

      After being shot, Booker stumbled to the back porch of Lakitta Wyatt's

apartment. Police responded, and Booker was transported to a hospital where he

later died. Booker did not identify the person who shot him. Months later,

however, Wright told her friend Zabria Hill what happened on the night of the

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murder. This ultimately led to Wright telling the police in a recorded interview

that she had seen Poellnitz shoot Booker. Wright later recanted her statement

and provided an affidavit to the defense that she had lied to the police. She

claimed the police threatened to take her children away if she did not give a

statement implicating Poellnitz. She also stated that she never told Hill that she

saw Poellnitz shoot Booker. The detective who conducted the interview refuted

Wright's claims, as did Hill.

      This evidence was sufficient to allow the jury to find Poellnitz 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. Poellnitz contends that the trial court erred by denying his request to

instruct the jury regarding the voluntariness of Wright’s prior inconsistent

statement to police in which she implicated Poellnitz. Specifically, Poellnitz

asked the trial court to use the Suggested Pattern Jury Charge on the

voluntariness of a defendant’s statement. As Poellnitz recognizes, however, this

charge relates specifically to a defendant, and it is based on a statute regarding




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the admissibility of a confession. See OCGA § 24–3–50.2 It is axiomatic that a

requested “jury instruction must be adjusted to the evidence and embody a

correct, applicable, and complete statement of law.” (Citations and punctuation

omitted.) Roper v. State, 281 Ga. 878, 880 (644 SE2d 120) (2007). The charge

requested by Poellnitz was not applicable to the testimony of a witness other

than the defendant. As a result, it was not an applicable statement of law, and the

trial court did not err in rejecting the instruction. Id.

      3. Poellnitz argues that his due process rights were violated when, during

closing argument, the prosecutor was allowed to encourage jurors to find

Poellnitz guilty in order to send a message to other defendants in DeKalb

County. As an initial matter, Poellnitz made no contemporaneous objection

during closing argument, and he has waived this contention for purposes of

appeal. See Andrews v. State, 293 Ga. 701, 704 (4) (749 SE2d 734) (2013).

Moreover, as Poellnitz recognizes, “[i]t is not improper for a prosecutor to

appeal to the jury to convict for the safety of the community . . . , or to . . . argue



      2
       Though applicable to this case based on the date on which it was tried,
this Code section has been replaced by OCGA § 24-8-824 of the new Evidence
Code.
                                          4
to the jury the necessity for enforcement of the law and impress on the jury . .

. its responsibility in this regard.” (Citations and punctuation omitted.) Philmore

v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993). Accordingly, even if it had

been preserved, this enumeration would lack merit.

      4. Poellnitz maintains that trial counsel rendered ineffective assistance by

failing to move for a mistrial when the prosecutor argued, “I’ll promise you this

. . . he’s guilty.” We disagree.

      In order to succeed on his claim of ineffective assistance, [Poellnitz]
      must prove both that his trial counsel’s performance was deficient
      and that there is a reasonable probability that the trial result would
      have been different if not for the deficient performance. Strickland
      v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
      If an appellant fails to meet his or her burden of proving either
      prong of the Strickland test, the reviewing court does not have to
      examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga.
      505 (3) (591 SE2d 782) (2004). In reviewing the trial court's
      decision, “‘[w]e accept the trial court's factual findings and
      credibility determinations unless clearly erroneous, but we
      independently apply the legal principles to the facts.’ [Cit.]”
      Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

      As an initial matter, Poellnitz’s argument, as framed by appellate counsel,

is patently misleading. A review of the transcript reveals that the prosecutor

actually argued:

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      But I'll promise you this too: at the close of this case, after you see
      the physical evidence, after you've heard the various statements in
      connection with this case, you will find the only verdict possible on
      the evidence, both direct evidence and circumstantial evidence in
      this case, and that's guilty. He's guilty.

Appellate counsel employed ellipses to hide the true gist of the prosecutor’s

arguments. In their entirety and with the proper context restored to them, the

      prosecutor's comments with which appellant takes issue are
      permissible since they are the conclusion the prosecutor wished the
      jury to draw from the evidence, and not a statement of the
      prosecutor's personal belief as to the [defendant’s guilt].
      Accordingly, counsel's failure to object to these comments during
      argument was not deficient performance.

(Citation and punctuation omitted.) Adams v. State, 283 Ga. 298, 302 (3) (e)

(658 SE2d 627) (2008).

      5. Poellnitz contends that the trial court erred by allowing Wright’s prior

inconsistent statement to be considered by the jury as substantive evidence,

arguing that we should follow federal law rather than Georgia law. We have

previously rejected this argument.

      In Gibbons v. State, [248 Ga. 858 (286 SE2d 717) (1982)], this
      Court held that a prior inconsistent statement of a witness who takes
      the stand and is subject to cross-examination is admissible both to
      impeach the witness and as substantive evidence. Our rationale was
      that the rule would increase the criminal justice system's ability to
      discover the truth by protecting the state and defendant from erratic

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      and unpredictable witnesses and attempts to influence witnesses and
      by protecting witnesses from improper attempts to influence them.
      Although [Poellnitz] asks this Court to adopt the federal rule and
      allow prior inconsistent statements to be admitted as substantive
      evidence only if given under oath, we decline to follow that rule and
      instead adhere to the modern state rule. As we noted in Gibbons, the
      “oath is not as strong a guaranty of truth as once it may have been”
      and the prior inconsistent statement is admissible only if the
      out-of-court declarant testifies at trial and thus is subject to
      cross-examination. The availability of cross-examination “assures
      a meaningful opportunity for the trier of fact . . . to bear his or her
      sensory observations, experience, common sense and logic upon the
      witness to assess credibility and to determine the truth and accuracy
      of both the out-of-court declarations and the in-court testimony.”
      Moreover, prior statements are made closer in time to the event
      when memories are fresher and when there is less likelihood that the
      statement is the product of corruption, false suggestion, intimidation
      or appeals to sympathy.

(Footnotes and punctuation omitted.) Holiday v. State, 272 Ga. 779, 780-781 (2)

(534 SE2d 411) (2000). Therefore, the trial court did not err by allowing the jury

to consider Wright’s prior inconsistent statement as substantive evidence.

      6. In his brief, Poellnitz raised an additional enumeration that the trial

court erred by failing to assess, sua sponte, whether a certain statement made by

Poellnitz with regard to a similar transaction was made voluntarily. At oral

argument, however, Poellnitz withdrew this enumeration, and, as such, we do

not consider it.

      Judgment affirmed. All the Justices concur.

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