In the Supreme Court of Georgia



                                                   Decided: October 20, 2014


                       S14A0804. LAWSON v. THE STATE.
                        S14A0805. JAMES v. THE STATE.


       BENHAM, Justice.

       Herman Lawson and Christopher James were jointly indicted, along with

two others, for charges arising out of the shooting deaths of two victims. In

separate trials, appellants were convicted of all charges, including the malice

murder of both victims. At the first appearance of these cases before this Court,

we reversed the trial court’s grant of new trial to each appellant. State v. James,

292 Ga. 440 (738 SE2d 601) (2013). Upon remand, each appellant’s sentence

was reinstated, the remaining grounds for new trial raised in each appellant’s

motion for new trial were considered, and the trial court denied those motions.

Lawson’s and James’s appeals were consolidated for review by this Court. For

the reasons set forth below, we affirm the convictions as to each appellant.1

       1
        The crimes were committed on August 20, 2005, and resulted in the deaths of Jeremiah
Ingram and Fatima Fisher. On November 21, 2006, appellants Herman Lawson and Christopher
James were jointly indicted, along with two others, by the Fulton County Grand Jury on identical
charges with respect to each victim: malice murder, felony murder (predicated upon aggravated
       Viewed in the light most favorable to the verdicts, the evidence in both

trials showed the deaths arose out of a dispute over whether drugs had been

stolen from co-indictee Bruce Roberts’s apartment where the victims, Jeremiah

Ingram and Fatima Fisher, were found by the co-indictees when they returned

to Roberts’s apartment after spending the evening at a night club. The co-

indictees blamed the victims for stealing cocaine and then bound the victims and



assault with a deadly weapon), aggravated assault with a deadly weapon, kidnapping with bodily
injury, and possession of a firearm during the commission of a felony. Appellant Lawson, alone, was
also indicted for felony murder (predicated upon possession of a firearm by a convicted felon) with
respect to each victim, and possession of a firearm by a convicted felon. Appellant Lawson was tried
before a jury from April 29 to May 6, 2008 and was found guilty on all charges. With respect to the
crimes against each victim, the felony murder conviction was vacated as a matter of law and the
convictions for aggravated assault and kidnapping were merged with the conviction for the murder
of that victim. The conviction for possession of a firearm by a convicted felon was also merged with
the conviction for Ingram’s murder. Lawson was sentenced to life imprisonment for both murders,
to be served consecutively. The convictions on the two counts for possession of a firearm during
the commission of a felony were merged and Lawson received a five-year suspended sentence.
         Appellant James was tried before a jury from June 23 to June 27, 2008, and was found guilty
on all charges. With respect to the crimes against each victim, the felony murder conviction was
vacated as a matter of law and the convictions for aggravated assault and kidnapping were merged
with the conviction for the murder of that victim. James was sentenced to life imprisonment for the
murder of each victim, to be served consecutively. The convictions on the two counts for
possession of a firearm during the commission of a felony were merged and James received a five-
year suspended sentence.
         Both appellants filed timely motions for new trial which were later amended. By order dated
September 7, 2011, the trial court granted new trials to both appellants, and that order was reversed
by this Court by judgment entered February 18, 2013. See State v. James, supra. Upon remand, each
appellant’s sentence was reinstated. After a hearing on Lawson’s motion for new trial, and upon
review of the record and transcript of the earlier hearing in James’s case, the trial court considered
the remaining grounds raised in each appellant’s motion for new trial. Both Lawson’s and James’s
motions for new trial were denied. James filed a timely notice of appeal on September 11, 2013, and
Lawson filed a timely notice of appeal on September 27, 2013. Both appeals were docketed to the
April 2014 term of this Court for decisions to be made on the briefs.

                                                  2
transported them in two different vehicles to a location in Fulton County where

Lawson shot them at James’s urging. The bodies were left near the side of the

road. After the shooting, the co-indictees changed the tires on one of the

vehicles and drove the other vehicle to a rural area in another county and set fire

to it, as part of an attempted cover-up of the crimes.

      The State’s primary witness against all three of the co-indictees who faced

trial2 was Karryngton Sims, an unindicted witness to the crimes who was

characterized by the State as a third victim. He testified about the events that

transpired before and after the shootings, and testified that the shootings

occurred at about sunrise. Sims testified that after these events he and the co-

indictees returned to Roberts’s apartment to hide out for a few days and agreed

to tell police, if questioned, that they had last seen the victims leaving in the

vehicle they had burned. Members of the group called Ingram’s phone to leave

messages in an effort to make it appear they did not know his fate. Another

witness testified at the trials of both Lawson and James that she spoke to victim

Fisher by phone several different times during the evening of August 19 into the

morning of August 20. The witness testified that earlier in the evening, Fisher

      2
          The other co-indictee who faced trial was Bruce Roberts.

                                               3
was upset because Ingram was late picking her up. Eventually, Ingram let

Fisher know he was coming to get her to take her out. This testimony is

consistent with other testimony that Ingram had been seen at the night club

earlier in the evening. The witness further testified that she last spoke to Fisher

at approximately 4:00 a.m., at which time Fisher told her she and Ingram were

about to leave Ingram’s apartment at the Clairmont Lodge to go somewhere else.

      Sims lived with Ingram at that apartment and testified that the two were

partners in a drug dealing enterprise. Ingram’s brother, Jayron Ingram, who also

stayed at times at the Clairmont Lodge apartment, testified that Fisher had been

at the apartment on the night of the shooting, that Ingram had stopped by to pick

her up, and they left together. The brother also testified that later that night, a

group comprised of Lawson, James, Roberts, and the other co-indictee, Michael

Jenkins, came to the Clairmont Lodge apartment looking for drugs and searched

the apartment. At James’s trial, Jayron Ingram further testified that while the

group was searching the apartment Roberts said he would kill Ingram.

      The evidence further showed that a passerby discovered the bodies at

around 8:30 a.m. along the roadway where Sims testified the victims were shot,

and the passerby made a call to 9-1-1, thus resulting in an investigation of the

                                        4
murders. The murders were linked to the burning of the vehicle, and a traffic

ticket for Lawson and Lawson’s probation papers were found at a later date on

the ground at the scene where the burning vehicle had been discovered. The

traffic ticket was dated just two days before the murders.

      Both appellants attacked the credibility of witnesses Sims and Jayron

Ingram and argued that except for this testimony there was no direct evidence

linking them to the crimes. Each appellant asserted as a theory of the case that

he did not accompany those who transported the victims to the place where they

were shot and thus was not a party to the crimes. Lawson asserted that the

evidence of his traffic ticket and probation papers were at most evidence that at

some point he had been in the burned vehicle, which the evidence showed was

shared and driven by several different people.

      1. The evidence adduced at both trials and summarized above was

sufficient to authorize a rational trier of fact to find both appellants guilty

beyond a reasonable doubt of the crimes for which they were convicted.

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

      2. (a) At the trials of both appellants, the trial court admitted into

evidence the medical examiner’s autopsy report as to each victim, along with an

                                       5
investigative summary compiled by the medical examiner’s office which

accompanied each autopsy report.                 The summary referenced information

reported by the detective who investigated the crime scene, including certain

information about the time and place where the victim’s body was found. As set

forth in this Court’s previous opinion, the investigative summaries attached to

the medical examiner’s reports on these two victims consisted of pages labeled

“Page 1 of 3” and “Page 3 of 3.” State v. James, supra, 292 Ga. at 440-441.3

Trial counsel for each appellant failed to object to the admission of the

investigative summaries even though the clearly marked pagination of both

reports indicated they were missing page two of three pages. As shown at the

hearings on the motions for new trial, the missing page from each summary

contained information regarding the condition of the bodies at the time the

investigating officers examined them which was relevant to the time of death.

Specifically, the summaries noted that the bodies were still warm to the touch

       3
          In this Court’s earlier opinion, we held the appellants failed to establish that the State
violated Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963) by suppressing
favorable evidence because appellants failed to show the missing page could not have been obtained
with reasonable diligence. State v. James, supra, 292 Ga. at 441. Page two was also missing from
the prosecutor’s case file, leading the trial court to conclude in its order granting the appellants’
motions for new trial that no malfeasance was involved and that the mistake was probably due to the
fact that the reports, which were printed as three-paged double-sided documents, had been
photocopied as one-sided documents. See id., at footnote 2.

                                                 6
and that rigor mortis had not set in. The fact that a page was missing came to

light only after it was discovered and admitted at the later trial of co-indictee,

Bruce Roberts, who was acquitted.

      Both appellants assert that their respective trial counsel provided

ineffective assistance as a result of counsel’s failure to object to introduction of

the incomplete investigative summaries along with counsel’s failure

independently to obtain the complete reports. According to each appellant, the

missing information could have been used to impeach Sims’s testimony about

the time of day the murders took place, as well as to challenge the medical

examiner’s testimony regarding the estimated time of death, and thus each

appellant claims he was prejudiced by his counsel’s failure to obtain the reports.

As evidence of alleged deficient performance of counsel, as well as the alleged

prejudice created by that deficient performance, appellants point to the fact that

Roberts’s counsel noticed the missing pages and obtained them for use at

Roberts’s trial, and that he was acquitted. Both appellants assert their counsel’s

failure to notice the missing page and to obtain the complete report prior to trial

demonstrates a failure of counsel to conduct even a rudimentary investigation

into the accuracy of the medical examiner’s report and thus establishes deficient

                                         7
performance of counsel. Lawson asserts the medical examiner’s testimony

concerning estimated time of death was “wildly contradictory,” and that he was

prejudiced as a result of counsel’s failure to obtain the summary reports because

the reports could have been used to challenge the medical examiner’s testimony.

Both appellants point to what they deem to be significant differences between

Sims’s testimony about the time of the shootings and the medical examiner’s

testimony about the estimated time of death across the three trials of the co-

indictees charged with these crimes.

       The only information contained in the summary reports that was not

otherwise established by other evidence, however, was (a) that neighborhood

residents reported hearing gunshots around daybreak; and (b) that when the

victims’ bodies were examined by investigators at the scene at 9:45 a.m. they

were warm to the touch and displayed no rigor mortis. Having reviewed the

medical examiner’s testimony in all three trials of the co-indictees4, we find the

testimony was not “wildly contradictory” at the Lawson trial as he asserts, nor

was the testimony materially inconsistent between these two trials or between


       4
         The pertinent volumes of the transcript of co-indictee Bruce Roberts’s trial were attached
as an exhibit to appellants’ motions for new trial.

                                                8
the testimony at these trials as compared to the testimony offered at the Roberts

trial. Moreover, neither appellant has demonstrated how the information

regarding the condition of the bodies at 9:45 a.m. was in any way materially

inconsistent with the medical examiner’s testimony that the window of time for

the estimated time of death was between 4:30 a.m. and the time the autopsy was

conducted at 12:30 p.m. Nor have they demonstrated how this information

would have given them grounds to impeach Sims’s testimony concerning the

time of the shootings. In fact, that neighborhood residents reported hearing

gunshots around daybreak was consistent with Sims’s testimony. Further, the

information in the summaries that the bodies were still warm when examined at

9:45 a.m., in conjunction with the medical examiner’s testimony relating to how

quickly body temperature cools after death, corroborates Sims’s testimony that

the shootings occurred later than 4:30 a.m., the earliest time within the medical

examiner’s window of time for the estimated time of death, and this information

would not have assisted either counsel in their attempts to impeach Sims.

      James was tried after Lawson, and at James’s trial his counsel cross-

examined Sims based upon his testimony in the Lawson trial. Counsel’s failure

to obtain a complete copy of the medical examiner’s summary report did not

                                       9
hamper James’s opportunity to attempt to impeach Sims’s testimony regarding

the time of the shootings.

      That Roberts, whose counsel obtained and used the complete summaries

attached to the autopsy reports, was acquitted does not establish that the reason

for acquittal was related to the introduction of the complete summary reports.

Reliance upon Roberts’s acquittal as evidence of insufficiency of trial counsel’s

representation fails to take into account that the undisputed testimony in all three

trials that, among all the indictees, it was Lawson who shot the victims at

James’s urging. Such reliance fails to take into account that unlike appellants,

Roberts presented alibi witnesses; that Roberts presented evidence from which

the jury could conclude Roberts did not make calls to Ingram’s phone the day

following the murders, as Sims testified all the men agreed to do; and that

Roberts impeached the testimony of a witness who testified that Roberts drove

a gray Crown Victoria to the club where the others gathered on the night of the

murders, by presenting evidence that he did not own such a vehicle at that time.

Thus, that Roberts was acquitted fails to demonstrate these appellants were

prejudiced by their counsel’s failure to obtain the complete summaries because

it fails to demonstrate that, but for counsel’s omission, the result of either of

                                        10
appellants’ trials would have been different.

      “To prevail on a claim of ineffective assistance of counsel, an appellant

must prove both deficient performance of counsel and prejudice from the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (III) (104

SCt 2052, 80 LE2d 674) (1984).” Bell v. State, 294 Ga. 443, 445 (2) (754 SE2d

327) (2014). Pretermitting the issue of whether deficient performance is

established by counsel’s failure to notice the missing pages of the summary

reports attached to these autopsies, object to the admission of incomplete

documents, or obtain complete copies of the documents, both appellants have

failed to make the showing necessary to establish constitutionally ineffective

assistance of counsel. Because we find appellants failed to satisfy the prejudice

prong of the Strickland test, this Court is not required to examine the other

prong of the test. See Johnson v. State, 295 Ga. 421 (3) (761 SE2d 13) (2014).

      (b) Both appellants also assert their trial counsel was deficient in failing

to interview Altresa Hood and to call her as witness because, they argue, her

testimony at the Roberts trial showed Sims’s testimony was not credible. They

further argue that Hood’s testimony would have supported a jury finding that

Sims was an accomplice to the murders and thus his uncorroborated testimony

                                       11
could not alone convict them. Appellants claim that trial counsels’ failure to call

Hood as a witness was unreasonable because it resulted from negligence and not

from a reasoned trial strategy. See Martin v. Barrett, 279 Ga. 593, 595 (619

SE2d 656) (2005). Thus, appellants assert that deficient performance of counsel

is shown. Further, according to appellants, the testimony of Ms. Hood was one

of the few significant differences between the evidence presented at these

appellants’ trials and the evidence presented at the Roberts trial, and this

difference demonstrates another reason why Roberts was acquitted while these

appellants were convicted. According to appellants, prejudice from the deficient

performance of trial counsel is established.

      Pretermitting the issue of whether prejudice has been shown, we disagree

that the failure of trial counsel for either James or Lawson to interview or call

Ms. Hood as a witness was unreasonable and unsupportable as trial strategy so

as to constitute deficient performance. A strong presumption exists that

counsel’s conduct falls within the range of reasonable professional conduct, and

a defendant has the burden of proof to affirmatively show that the purported

deficiencies in counsel’s performance were indicative of ineffective assistance

and not examples of a reasonable trial strategy. See Gill v. State, ___ Ga. ___

                                        12
(2) (___ SE2d ___) (2014 WL 4667535) (Sept. 22, 2014). Ms. Hood’s police

interview was reviewed by appellants’ respective trial counsel. While Lawson’s

counsel did not specifically remember her as a potential witness, his undisputed

testimony at the motion for new trial hearing was that had he seen any useful

testimony in her statement, he would have called her as a witness. James’s trial

counsel testified at the motion for new trial hearing that he attempted to contact

Hood but was unable to do so. He also testified that based upon his review of

Hood’s statement to police, he did not want her “anywhere near the courthouse”

during James’s trial because he believed her testimony would implicate James.

In fact, Hood’s testimony at the Roberts trial corroborated Sims’s testimony in

that she testified Sims told her about the murders, and said “we,” including

Sims, Lawson, and James, were involved in tying up Ingram and transporting

the victims to the place they were shot, and that Lawson shot them, thereby

implicating both Lawson and James. That her testimony also implicated Sims,

in that he included himself in the group that tied up and transported the victims,

is merely cumulative of Sims’s own testimony. At their trials, even without

Hood’s testimony, both appellants used the evidence presented to attempt to

impeach Sims’s credibility and portray him as a participant in the crimes whose

                                       13
testimony should not be believed. From the evidence as a whole, however, the

jury was entitled to reject these arguments. See Gill v. State, supra, ___ Ga. at

(1). The failure to call Hood as a witness was a reasonable trial strategy for trial

counsel and, accordingly, appellants have failed to establish ineffective

assistance of trial counsel. See Miller v. State, ___ Ga. ___ (2) (a) (I) (___

SE2d ___) (2014 WL 4958168) (Oct. 6, 2014).

      3. Both appellants claim that a review of all three trials shows such

inconsistency between Sims’s testimony that the truthfulness of his statements

must be called into question. Accordingly, each appellant argues his conviction

based upon Sims’s testimony must be deemed a due process violation. Relying

upon an opinion of the United States Court of Appeals for the Eighth Circuit,

appellants argue that a due process violation occurs when “the State’s zeal to

obtain multiple murder convictions on diametrically opposed testimony renders

[a conviction] infirm.” Smith v. Groose, 205 F3d 1045 (8th Cir. 2000). But in

the Smith case, “what the State claimed to be true in [one] case it rejected in [the

co-defendant’s] case, and vice versa.” Id. at 1050. The Smith case involved two

defendants who were separately indicted and tried at different times for, among

other offenses, burglary and murder. In the first case tried, the State presented

                                        14
an out-of-court statement to impeach a witness, in which the witness told police

that the murders occurred after he entered the victims’ home, and, based on this

evidence, the jury convicted the defendant in that trial, one of the witness’

accomplices, of felony murder. In the trial of the second defendant, the same

witness testified that the victims were already dead when he and his accomplices

entered the victims’ home, and, based on that testimony, the jury convicted the

defendant in that trial, who had preceded the witness and his accomplices into

the home, of first-degree murder. In the trials at issue in this case, however, the

State did not argue at one trial that Lawson was the trigger man and in the other

trials that James or Roberts did the shooting. Rather, in each trial, Sims testified

that Lawson was the shooter and that James encouraged him to commit the

shootings.

      Having reviewed the three transcripts, we conclude the differences

between Sims’s testimony at these trials is not materially significant with respect

to the sufficiency of the evidence to convict these appellants. The discrepancies

between his testimony at these trials consists largely of such details as who went

to the club the evening of the shootings; whether, upon returning from the club

and learning that Roberts claimed drugs were missing from his apartment,

                                        15
Lawson pulled out his gun and forced everyone inside the apartment, or pulled

out the gun once everyone was already inside; whether the group went to

change the tires on Roberts’s car before or after driving the vehicle to the

countryside to set it afire; and Sims’s inability to pinpoint the exact time of

certain occurrences surrounding the killings. These variations in testimony are

the sort that may be reasonably explained by the passage of time. This is not a

case where the government used “inherently factually contradictory theories and

changed the color of its stripes from one trial to the next by advancing an

inconsistency . . . at the core of the prosecutor’s separate cases against

defendants for the same crime. Far from it.” (Citations and punctuation

omitted.) United States v. Hill, 643 F3d 807, 834 (11th Cir. 2011). Accordingly,

each appellant’s assertion that his constitutional right to due process was

violated lacks merit.

      Judgments affirmed. All the Justices concur.




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