In the Supreme Court of Georgia



                                                          Decided: March 16, 2015


                          S14A1715. SMITH v. THE STATE.


       THOMPSON, Chief Justice.


       Appellant Perrie Quintez Smith was found guilty of malice murder, felony

murder, aggravated assault, possession of a firearm during the commission of

a felony, and possession of a firearm by a first offender probationer in

connection with the shooting death of Raynell Cornell.1 On appeal, appellant

claims he received ineffective assistance of counsel at trial and that the trial

       1
           The crimes occurred on October 1, 2010. Appellant was indicted by a DeKalb County
grand jury on January 28, 2011, on charges of malice murder, felony murder (two counts),
aggravated assault, possession of a firearm during the commission of felony and possession of a
firearm by a first offender probationer. Following a jury trial from February 13-17, 2012, appellant
was found guilty of malice murder, one count of felony murder, aggravated assault, possession of
a firearm during the commission of a felony and possession of a firearm by a first offender
probationer. Upon receipt of the jury’s verdict, the trial court sentenced appellant to life on the
malice murder count, five years consecutive for possession of a firearm during the commission of
a felony, and five years concurrent with the life sentence for possession of a firearm by a first
offender probationer. The felony murder count was vacated by operation of law and the aggravated
assault count was merged with the malice murder count for sentencing. See Malcolm v. State, 263
Ga. 369 (434 SE2d 479) (1993). Appellant filed a timely motion for new trial on March 14, 2012
and an amended motion on March 10, 2014. Following a hearing held March 19, 2014, the trial
court entered an order June 3, 2014 denying appellant’s motion for new trial. Appellant filed a
notice of appeal on June 30, 2014 and the appeal was docketed in this Court for the September 2014
term and submitted for a decision on the briefs.
court erred in refusing to charge the jury on voluntary manslaughter. Finding

no error, we affirm.

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

at trial revealed that on October 1, 2010 a fight broke out between adults at a

children’s birthday party hosted by a relative of the appellant. When the fight

escalated, appellant’s grandmother called him to come to the party to help his

cousins. Appellant and his brother, Andre Woods, drove to the party with

Rocheford Harris in Harris’s white Jeep Cherokee.

       While at the party, Harris noticed appellant was holding a black handgun.

Soon thereafter, Harris heard gunshots and ran to his Jeep. Appellant and

Woods also returned to Harris’s Jeep and the three men drove away from the

scene. Before they could exit the apartment complex, however, the Jeep was

stopped by police.2 Appellant, Harris and Woods were detained, their cell

phones were collected by the police, and the Jeep was impounded until a search

warrant could be obtained. Upon processing the scene of the shooting, police



       2
          Having responded to an earlier call about fighting at the complex, the police were still in
the vicinity and arrived quickly when called about the shooting. Upon their arrival, the officers were
told by witnesses that the shooter was an African-American male with dreadlocks wearing dark
clothing who left the scene in a white Jeep. This description fit both appellant and Harris’s vehicle.

                                                  2
found the victim unresponsive on the ground with a single gunshot wound to the

chest. Police also recovered three .380 shell casings at the scene. A subsequent

search of Harris’s Jeep revealed two guns beneath the back seat, one of which

was a black Cobra .380 caliber handgun. Further investigation matched the

Cobra .380 obtained from the Jeep to the bullet recovered from the victim’s

body.

        Shortly before trial, an investigator from the district attorney’s office

obtained a search warrant to gather contacts, text messages, call logs,

photographs, ring tones, audio and video from appellant’s cell phone and four

others collected by the police from individuals involved in the incident. A

photograph taken three months prior to the incident showing appellant holding

a handgun similar to the Cobra .380 recovered from the Jeep was extracted from

appellant’s cell phone and admitted into evidence.

        We conclude the evidence was sufficient to enable a rational trier of fact

to find appellant guilty beyond a reasonable doubt of the crimes for which he

was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d

560) (1979).

        2.   Appellant contends that his trial counsel was constitutionally

                                         3
ineffective for several reasons. In order to prevail on a claim of ineffective

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

performance was deficient and that there is a reasonable probability that, but for

counsel’s errors, the outcome of the trial would have been different. See

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

“Failure to satisfy either prong of the Strickland test is sufficient to defeat a

claim of ineffective assistance, and it is not incumbent upon this Court to

examine the other prong.” Hargrove v. State, 291 Ga. 879, 881 (734 SE2d 34)

(2012). To establish deficient performance, an appellant must overcome the

strong presumption that his or her counsel’s conduct falls within the broad range

of reasonable professional conduct and “show that his counsel performed in an

objectively unreasonable way, considering all circumstances and in the light of

prevailing professional norms.” Prince v. State, 295 Ga. 788, 791 (764 SE2d

362) (2014). Further, although both the performance and prejudice components

of an ineffectiveness inquiry involve mixed questions of law and fact, a trial

court’s factual findings made in the course of deciding an ineffective assistance

of counsel claim will be affirmed by the reviewing court unless clearly

erroneous. See Strickland, supra, 466 U.S. at 698.

                                        4
       (a) Appellant first asserts his trial counsel was ineffective for failing to

file a motion to suppress the evidence obtained from appellant’s cell phone.

Appellant contends that probable cause did not exist for the issuance of a

warrant allowing a search of the entire contents of his cell phone and claims he

was prejudiced by counsel’s failure to suppress the photograph recovered

therefrom which showed appellant holding a gun.3 Where, as here, trial

counsel’s failure to file a motion to suppress is the basis for a claim for

ineffective assistance, the burden is on the appellant to make a strong showing

that the damaging evidence would have been suppressed had counsel made the

motion. See Biggs v. State, 281 Ga. 627, 631 (4) (b) (642 SE2d 74) (2007).

Appellant has failed to meet this burden.

       In this case, the affidavit on which the warrant was based stated that the

five cell phones to be searched had been secured by DeKalb County police

officers and detectives during the course of their investigation from different


       3
          The record reveals that appellant’s trial counsel was an experienced criminal defense
attorney and part time magistrate judge, who testified at the motion for new trial hearing that, in his
experience, it was common to find relevant evidence in cell phones. While trial counsel did not file
a motion to suppress the photographs obtained from appellant’s cell phone on constitutional grounds,
the record shows that he did file a motion in limine seeking to exclude the photograph of appellant
holding a gun arguing that the picture, taken some three months prior to the shooting, was not
relevant and that its admission into evidence would be more prejudicial than probative.

                                                  5
locations and different individuals involved in the incident. The affidavit listed

the nature of the crime and outlined the police investigation, including

statements from witnesses reporting that following an altercation between

residents of an apartment complex on October 1, 2010, family members of one

of the parties involved allegedly telephoned additional family members for

assistance. According to the affidavit, appellant was contacted by a family

member of one of the parties and he subsequently contacted Harris to ask for a

ride to the scene for himself and Woods. The affidavit further provided that

witnesses at the scene described the shooter as a person matching appellant’s

description who fled the scene in a white Jeep Cherokee; that officers

responding to a 911 call about the shooting stopped appellant, Harris and Woods

in a white Jeep Cherokee down the street from the incident shortly thereafter;

and that all three men admitted to having been at the location when the incident

took place.

      Although the affidavit did not specify to whom each of the cell phones

belonged, it provided the issuing magistrate with sufficient information to make

a practical, common sense decision that there was a fair probability that

evidence of the crime would be found on the items to be searched. See State v.

                                        6
Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009). As previously noted by this

Court, “[t]he test for probable cause is not a hypertechnical one to be employed

by legal technicians, but is based on the ‘factual and practical considerations of

everyday life on which reasonable and prudent men . . . act.’” State v. Hunter,

282 Ga. 278, 278 (646 SE2d 465) (2007), quoting Curry v. State, 255 Ga. 215,

217 (1) (336 SE2d 762) (1985) (citation and punctuation omitted.). Further,

where the basis for the issuance of a search warrant has been challenged, this

Court has stated that

      [d]oubtful cases should be resolved in favor of upholding the
      determination that issuance of a warrant was proper, reflecting both
      a desire to encourage use of the warrant process by police officers
      and a recognition that once a warrant has been obtained, intrusion
      upon interests protected by the Fourth Amendment is less severe
      than otherwise may be the case.

Glenn v. State, 288 Ga. 462, 466 (2) (d) (704 SE2d 794) (2010) (citations and

punctuation omitted.).

      In this case, the issuing magistrate granted the State’s application for a

warrant to search five cell phones, including appellant’s, for specific

information contained therein “that would indicate the planning or

premeditation to commit murder, and or any indication of participation in said


                                        7
crime.” See Reaves v. State, 284 Ga. 181, 184 (2) (d) (664 SE2d 211) (2008)

(warrants containing residual clauses limiting the items to be seized to those

relevant to the crimes identified are sufficiently particular and do not authorize

a general search in violation of the Fourth Amendment). It appears from the

record that the magistrate had a substantial basis on which to conclude sufficient

probable cause existed to support the warrant issued, thus appellant cannot make

a strong showing that a motion to suppress the evidence obtained from his cell

phone based on a lack of probable cause would have been granted.4 As trial

counsel’s performance cannot be deemed deficient due to his failure to make a

meritless motion, appellant’s ineffective assistance of counsel claim lacks merit.

       (b) A review of the record reveals that while highlighting during closing

argument the cumulative circumstantial evidence of appellant’s guilt and


       4
         Although appellant additionally contends that the scope of the search warrant issued in this
case was overly broad in that the affidavit failed to state any reasonable grounds from which to
believe that evidence of the shooting would be found in photographs recovered from the cell phones,
photographs often provide evidence of a fact or event. See Henson v. State, 314 Ga. App. 152, 156
(723 SE2d 456) (2012). Moreover, appellant’s argument relies on cases involving the warrantless
search of cell phones incident to an arrest which are inapplicable to this case in which a search
warrant was obtained. See Hawkins v. State, 290 Ga. 785, 788 (723 SE2d 924) (2012) (holding the
scope of a search incident to an arrest of a suspect’s cell phone “must be limited as much as is
reasonably practicable by the object of the search”). But see Riley v. California, ___ U.S. ___ (IV)
(134 SCt 2473, 189 SE2d 430) (2014) (search incident to an arrest exception does not apply to cell
phones and, except under exigent circumstances or other case-specific exceptions, the warrantless
search of a cell phone is unconstitutional).

                                                 8
offering jurors a method by which they could assess this evidence, the

prosecutor suggested jurors use their common sense and consider the evidence

as if it were being reported in a newspaper. Appellant contends his trial counsel

was ineffective for failing to object to this portion of the State’s closing

argument and alternatively contends that it was plain error for the trial court to

fail to take curative measures in the absence of an objection. See OCGA § 17-8-

75. Both contentions lack merit.

      Whether to object to a particular part of a prosecutor’s closing
      argument is a tactical decision, see Westmoreland v. State, 287 Ga.
      688, 695-696 (699 SE2d 13) (2010), and counsel’s decision not to
      make an objection must be patently unreasonable to rise to the level
      of deficient performance, see Westbrook v. State, 291 Ga. 60, 64
      (727 SE2d 473) (2012).

Peoples v. State, 295 Ga. 44, 60 (757 SE2d 646) (2014). At the motion for new

trial hearing, appellant’s trial counsel testified that he normally does not object

to another lawyer’s closing argument unless it is egregious. Counsel stated that

he had heard the prosecutor use this newspaper analogy in other cases and he

strategically decided not to object, choosing instead to comment on the

prosecution’s “theatrics” in his own closing as a way to turn the prosecutor’s

remarks to appellant’s advantage. Appellant has not shown how his trial


                                        9
counsel’s conscious decision to remain silent and use the prosecutor’s argument

for the benefit of the defense was an unreasonable strategy under the

circumstances. See Smith v. State, 288 Ga. 348, 354 (703 SE2d 629) (2010).

See also Smith v. State, 284 Ga. 599, 602 (2) (a) (669 SE2d 98) (2008) (Where

the remarks complained of are based on evidence properly before the jury, wide

latitude is afforded the prosecution in closing argument.).

      Equally unavailing is appellant’s assertion that the trial court should have

interposed its own corrective action pursuant to OCGA § 17-8-75.5 The

prosecutor’s argument did not include any statements that were not supported

by the evidence in this case. Moreover, “a trial judge has no obligation under

OCGA § 17-8-75 to rebuke a prosecuting attorney or give a curative instruction

in the absence of a timely objection.” Powell v. State, 291 Ga. 743, 746 (733

SE2d 294) (2012). See Scott v. State, 290 Ga. 883, 885 (2) (725 SE2d 305)

(2012) (“In the appeal of a non-capital case, ‘the defendant’s failure to object

      5
          OCGA § 17-8-75 provides:

      Where counsel in the hearing of the jury make statements of prejudicial matters
      which are not in evidence, it is the duty of the court to interpose and prevent the
      same. On objection made, the court shall also rebuke the counsel and by all needful
      and proper instructions to the jury endeavor to remove the improper impressions
      from their minds; or, in his discretion, he may order a mistrial if the prosecuting
      attorney is the offender.

                                              10
to the State’s closing argument waives his right to rely on the alleged

impropriety of that argument as a basis for reversal.’ [Cit.]”).

       (c) Appellant additionally contends his trial counsel was ineffective for

failing to object to the prosecutor’s remarks to the jury during closing argument

that “[c]rime is a cancer that eats away at society,” and that the jury should

“stand in the way of injustice.”6 Prosecutors are prohibited from injecting

extrinsic and prejudicial statements which have no basis in the evidence into

closing arguments. See Bell v. State, 263 Ga. 776, 777 (439 SE2d 480) (1994).

However, general appeals to enforce the criminal law for the safety of the

community have long been held by this Court to be within the bounds of

permissible argument. See Spencer v. State, 287 Ga. 434, 439-440 (696 SE2d

617) (2010); Davis v. State, 266 Ga. 801, 804 (8) (471 SE2d 191) (1996).

Judged in the context in which they were made, we find the alleged offending



       6
          Having stated early in his closing argument that the motive for the shooting was vigilante
justice with appellant deciding to be “[a] vigilante judge, vigilante juror, and vigilante executioner,”
the prosecutor concluded his closing with the following statement:

       Crime is a cancer that eats away at society. And at some point, we, as citizens, have
       to stand in the way of it. I’m asking you to stand in the way of injustice. Stand in the
       way of a vigilante judge. Stand in the way of a vigilante juror. Stand in the way of
       a vigilante executioner, and find [appellant] . . . guilty of each and every charge in
       this indictment.

                                                  11
remarks merely reflected the State’s theory that the motive for the crime was

vigilante justice and generally and properly appealed to the jury to enforce the

law for the safety of the community. See Scott, supra, 290 Ga. at 885; Smith,

supra, 284 Ga. at 602 (2) (a). Inasmuch as the State’s closing argument was not

improper on the basis asserted by appellant, trial counsel’s failure to object to

the State’s argument is not evidence of ineffective assistance. See Scott, supra,

290 Ga. at 889 (7) (a). Accordingly, this ineffective assistance of counsel claim

also lacks merit.

      3. Finally, appellant contends that the trial court erred in refusing to

charge the jury on the lesser included offense of voluntary manslaughter. To

support a charge of voluntary manslaughter, there must be evidence that the

accused “act[ed] solely as the result of a sudden, violent, and irresistible passion

resulting from serious provocation sufficient to excite such passion in a

reasonable person.” OCGA § 16-5-2 (a). Whether such evidence exists is a

question of law, but even slight evidence showing that the victim seriously

provoked the defendant requires the trial court to give a requested charge on

voluntary manslaughter. See Merritt v. State, 292 Ga. 327, 331 (737 SE2d 673)

(2013). This Court has held, however, that neither fear that someone is going

                                        12
to pull a gun nor fighting are the types of provocation which demand a voluntary

manslaughter charge. See Brown v. State, 294 Ga. 677, 680 (3) (755 SE2d 699)

(2014); Merritt v. State, 292 Ga. 327, 331 (737 SE2d 673) (2013). Further,

words alone are generally insufficient to excite the passion necessary to give rise

to voluntary manslaughter. See Gresham v. State, 289 Ga. 103, 104 (3) (709

SE2d 780) (2011). In this case, there is no evidence that following his arrival

appellant was taunted by the victim or subjected to any conduct that would

excite the passions of a reasonable person. Rather, the evidence shows that the

prior altercation and fighting involving appellant’s relatives occurred some 30

or 40 minutes before the appellant arrived at the apartment complex. As the

evidence in this case does not rise to a level sufficient to support a voluntary

manslaughter charge, the trial court did not err in refusing to give the charge

requested.

      Judgment affirmed. All the Justices concur.




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