In the Supreme Court of Georgia



                                            Decided: October 19, 2015


                    S15A1188. INGRAM v. THE STATE.


      THOMPSON, Chief Justice.

      Appellant Kimjon Ingram appeals from his convictions of felony murder

and other crimes stemming from the asphyxiation deaths of sisters Donisha and

Lexusous Henderson.1 Appellant contends, among other things, that the trial

      1
        The crimes occurred on July 22, 1994. On May 7, 1999, a Fulton County
grand jury indicted appellant for the malice murder of Donisha and Lexusous
Henderson, for the felony murder of the sisters, for the aggravated assault of the
sisters’ mother, Charmaine Henderson, one count of arson in the first degree,
and one count of criminal possession of an explosive device. On September 21,
2001, a jury found appellant not guilty on both counts of malice murder, guilty
on the two counts of felony murder, and guilty on all the remaining counts. On
October 29, 2001, the trial court sentenced appellant to life without parole on the
felony murder verdicts and to concurrent twenty-year terms in prison on the
three remaining verdicts. Appellant filed an untimely motion for new trial on
December 23, 2009, which he amended several times. Appellant also filed a
motion for out-of-time appeal. On April 27, 2012, the trial court denied the
motion for new trial, as amended, but never ruled on the motion for out-of-time
appeal. On May 14, 2012, appellant filed a notice of appeal to this Court. On
December 11, 2014, we dismissed appellant’s appeal as untimely. See Ingram
v. State, Case No. S15A0453 (decided Dec. 11, 2014). On December 15, 2014,
appellant filed another motion for out-of-time appeal, which the trial court
granted on January 16, 2015. Appellant filed a timely notice of appeal, and the
court erred in denying his motion for a continuance, that his trial counsel was

constitutionally ineffective, and that the trial court erred in charging the jury.

For the reasons that follow, we affirm.

      1. Viewed in the light most favorable to the verdicts, the evidence showed

that appellant and his former girlfriend, Cassandra Heflin, were members of the

FOLKS gang. After their breakup, appellant and Heflin remained friends. On

July 22, 1994, Heflin called appellant and told him that her sister was being



case was docketed to the April 2015 term of this Court.

      Because of the delay of more than a decade from appellant’s conviction
to our receiving this appeal, we reiterate, as we have recently, that

      extended delays in proceedings on motions for new trial put at risk
      the rights of defendants and crime victims and the validity of
      convictions obtained after a full trial, and . . . it is the duty of all
      those involved in the criminal justice system, including trial courts
      and prosecutors as well as defense counsel and defendants, to
      ensure that the appropriate post-conviction motions are filed,
      litigated, and decided without unnecessary delay. Nevertheless, any
      failure to discharge that duty in this case does not affect the
      outcome of this appeal . . . because [appellant] has enumerated no
      error associated with the delay.

Walker v. State, 295 Ga. 688, 688 n.1 (763 SE2d 704) (2014) (citation and
quotation marks omitted).


                                         2
mistreated by some members of the CRIPS gang at the apartment of Charmaine

Henderson, the mother of the two deceased victims. Appellant told Heflin that

he would “go take care of that.” She told him to “[b]low them up if you have

to,” by which she meant that appellant, who always had a gun, should shoot

them if necessary. Appellant then prepared Molotov cocktails with gasoline,

went to Charmaine Henderson’s apartment, and threw a Molotov cocktail into

her apartment window. At that time, Charmaine and her two children, as well

as Cantinas White and her cousin, were in the apartment. The two children had

just gone to bed, and the other three were in the TV room. When the bomb hit,

it created a fireball that kept Charmaine from getting to her children. White and

her cousin ran to get help. Despite help from two men, Charmaine could not get

to the children.

      A police officer, the first responder to arrive, said that he could hear the

cries of the children inside the apartment. Neither he nor a fireman, who arrived

shortly after the officer, could enter the apartment because the room just inside

the apartment door was fully engulfed in flames.            Once the fire was

extinguished, responders crawled through thick smoke, located the children, and

pulled them from the apartment. By that time, they both had died from smoke

                                        3
inhalation.

      Appellant does not dispute the legal sufficiency of the evidence supporting

his convictions, but we conclude that, when viewed in the light most favorable

to the verdicts, the evidence presented at trial and summarized above was

sufficient to authorize a rational jury to find appellant guilty beyond a

reasonable doubt of the crimes for which he was convicted. See Jackson v.

Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega

v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury to

determine the credibility of the witnesses and to resolve any conflicts or

inconsistencies in the evidence.’” (citation omitted)).

      2. Appellant contends that the trial court erred in denying his motion for

a continuance. We find no error.

      The jury for this case was selected on September 10, 2001. Based on the

events of September 11, 2001, the trial court canceled court that day. Court

reconvened on September 12, and appellant moved for a continuance,

contending that, because this case involved deaths that occurred by fire and

smoke, along with rescuers crawling through thick smoke in an attempt to

rescue the children, and because the jurors selected had spent the day of

                                       4
September 11 watching events on television, the trial court should continue the

case. The trial court denied the motion

      “This Court will not reverse a trial court’s decision to deny a motion for

a continuance absent a showing of a clear abuse of discretion.” Geiger v. State,

295 Ga. 648, 651 (763 SE2d 453) (2014). Here, we find no abuse of discretion.

First, contrary to appellant’s contention, the trial court did not deny the motion

based on the need for the country to function normally and with as little

disruption as possible after the events of September 11. The trial court did say

that a return to normalcy was important, but that, in this case, “[o]bviously, that

depends on the jury. If there are jurors who say that they can’t continue due to

the fact of what happened yesterday . . . those people should be excused.” The

court further said that “I agree that we have to have a jury that can function. The

jury that you picked . . . I think could do that; but if the events of yesterday have

changed their position, then obviously that’s a different matter.” To find out

how the events of September 11 had impacted the jurors, the trial court voir

dired the jurors as a group, asking

      We are in an unusual time. Since you were selected on Monday, we
      have had a horrific event take place yesterday in New York and
      Washington which has had an effect on people all over this country.

                                         5
      And my question to you, to each of you individually, is have – has
      anything that occurred between the time you were picked on
      Monday and today affected you to such an extent that you believe
      that you would no longer be capable of being a fair and impartial
      juror on this case, or is there any other reason that you believe that
      you would be unable to serve appropriately as a fair and impartial
      juror on the trial of this case?
      I don’t presume to know the answer to that, and thought it would be
      best before we began to inquire of each of you to make sure that
      basically you’re all okay. If there’s anybody that would answer
      either of those questions that I asked in the affirmative, I would
      appreciate it if you would let me know.

No jurors responded to the trial court’s question, and defense counsel declined

the opportunity to ask the jurors any further questions.              Under these

circumstances, and because the events of this case did not involve a terror attack

like those of September 11, we conclude that the trial court did not clearly abuse

its discretion in denying appellant’s motion for a continuance.2 See Kemp v.

State, 259 Ga. App. 302, 303 (576 SE2d 673) (2003) (holding that the trial court

did not err in conducting appellant’s trial during the week of September 11,

2001).


      2
        Appellant says that the trial court excused one juror because she was
“obviously affected” by the events of September 11. This juror, however, was
not excused for that reason. As defense counsel said at trial: the juror’s inability
to serve “has nothing to do with yesterday or the week before that. She’s got
issues regarding depression, medication and she just can’t serve.”
                                         6
      3. Appellant contends that trial counsel was constitutionally ineffective

in not seeking an on the record waiver of appellant’s decision not to testify in

his own defense and in not objecting when, during closing argument, the

prosecutor sang “Happy Birthday” to the two deceased victims. Appellant,

however, is procedurally barred from raising these allegations. In his untimely

motion for new trial, see footnote 1 above, appellant raised these two allegations

of ineffective assistance of counsel. The trial court denied that motion, and we

dismissed the appeal that followed that denial on the ground that the motion for

new trial was untimely and did not toll the time for filing a notice of appeal.

After the trial court granted appellant an out-of-time appeal, he did not file a

motion for new trial raising these two claims of ineffective assistance of

counsel. We have held that, under these circumstances, the failure to file a

second and valid motion for new trial “‘raising the claim[s] of ineffective

assistance of trial counsel bars review of th[ose] claim[s] at this time.’” Sanders

v. State, 289 Ga. 655, 659 (715 SE2d 124) (2011) (citation omitted).

Accordingly, appellant is barred from raising these claims on appeal.

      4. Relying on McKenzie v. State, 293 Ga. App. 350 (667 SE2d 142)

(2008), appellant contends that the trial court erred in charging in both its

                                        7
preliminary and final instructions that the jury could consider, among numerous

other factors, the intelligence of witnesses in assessing their credibility.3

      In McKenzie, the Court of Appeals said that informing a jury that it may

consider intelligence as a factor in determining witness credibility is problematic

and confusing. See id. at 352. For these reasons, the court concluded that the

charge should not be given, but that it is not so “harmful as to require a

reversal.” Id. This Court, while noting the Court of Appeals’ concern with the

charge in McKenzie, has held that, even assuming that “the better practice is to

omit intelligence as one of the factors in the credibility charge, its inclusion is

not reversible error.” See Howard v. State, 288 Ga. 741, 747 (707 SE2d 80)

(2011). Accord Gamble v. State, 291 Ga. 581, 583 (731 SE2d 758) (2012)

(holding that, because “it is not reversible error to include intelligence as a

factor in the jury charge on witness credibility,” the giving of the charge did not

constitute plain error). Accordingly, the trial court did not commit reversible

error in giving the charge.

      Judgment affirmed. All the Justices concur.

      3
        Appellant did not object to the preliminary instruction, and because his
trial occurred before the effective date of OCGA § 17-8-58, he is barred from
attacking that charge on appeal. He properly reserved his objections to the trial
court’s final charge.
                                        8
                     S15A1188. INGRAM v. THE STATE

      HUNSTEIN, Justice, concurring.

      I agree with the majority opinion that Ingram’s ineffective-assistance-of-

trial-counsel claim is procedurally barred. See Sanders, 289 Ga. at 659. I write

specially to remind all prosecutors in this State

      that it is not their job to pursue stunts and antics during their closing

      arguments that are designed merely to appeal to the prejudices of

      jurors, but to see that justice is done and nothing more. That duty

      should not be forgotten in an excess of zeal or the eager quest for

      victory in any given case. The people of the state desire merely to

      ascertain beyond a reasonable doubt that the accused is guilty of the

      crime charged, and do not countenance any unfairness upon the part

      of their representatives in court.

(Citations omitted.) Smith v. State, 288 Ga. 348, 356 (10) (b) (2010). Likewise,

the trial judges of this State have a duty to maintain dignity and decorum in their

courtrooms, see R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 581(9) (292 SE2d

815) (1982), and, trial judges have the authority “to control the courtroom by

putting an end to the display of the prosecutor, even absent an objection from

defense counsel.” Smith, 288 Ga. at 356.
