296 Ga. 364
FINAL COPY


                    S14A1286. BABBAGE v. THE STATE.
                      S14A1287. HALL v. THE STATE.


      HUNSTEIN, Justice.

      Appellants Mason Babbage and Samuel Hall were jointly tried and

convicted of murder, armed robbery, and related crimes in connection with the

October 2011 death of Breyon Alexander. Both men were sentenced to life in

prison without the possibility of parole plus consecutive terms of years, and each

now appeals his convictions and sentences. Finding no error in regard to either

appellant, we affirm.1

      1
       Appellants, together with co-defendant Phillip Kennebrew, were indicted by
a DeKalb County grand jury on counts of malice murder, felony murder, aggravated
assault, armed robbery, false imprisonment, and possession of a knife during the
commission of a felony. Hall was additionally charged with possession of a firearm
during the commission of a felony and firearm possession by a convicted felon. The
three men were jointly tried in August 2012 and found guilty on all counts. Babbage
was sentenced to life without parole for malice murder plus various consecutive and
concurrent terms of years for armed robbery, false imprisonment, and weapon
possession, for a total sentence of life plus 25 consecutive years; the remaining counts
merged or were vacated as a matter of law. Hall was sentenced to life without parole
for malice murder plus various consecutive and concurrent terms of years for the
counts that were not merged or vacated, for a total sentence of life plus 45
consecutive years. Both appellants filed timely motions for new trial, which they
each subsequently amended, and, following a joint hearing in October 2013, the trial
court denied both motions on December 30, 2013. Each appellant filed a timely
      Viewed in the light most favorable to the jury’s verdicts, the evidence

adduced at trial established as follows. Around midday on October 18, 2011,

Marvin Evans heard a loud noise from the back of his second floor DeKalb

County apartment. From his balcony, Evans observed a white Chevrolet Malibu

with its back side facing the apartment building. Evans saw two light-skinned

black men, one beside the car and the other, whose hair was worn in dreadlocks,

running toward the car. Proceeding downstairs to investigate, Evans passed a

bald, light-skinned black man coming up the stairs. At trial, Evans identified

Hall as the man he passed on the stairs.

      In the downstairs apartment, Evans discovered the victim hogtied and

bleeding, with several teeth knocked out of his mouth. The apartment had been

ransacked. Evans called 911. Though conscious when Evans discovered him,

the victim died from his injuries soon thereafter. His injuries included both

blunt and sharp force injuries, consistent with having been stabbed and beaten

with the butt of a gun. A knife was found in the apartment’s patio area.

      There were no signs of forced entry into the apartment, from which

notice of appeal in January 2014, and both appeals were docketed to the September
2014 term of this Court. Babbage’s appeal was orally argued on September 9, 2014,
and Hall’s appeal was submitted for decision on the briefs.
                                        2
numerous items of electronic equipment, firearms, and a large sum of cash had

been taken. Among the stolen items were a 50-inch flat screen television, a 42-

inch television, a 12-gauge shotgun, two laptop computers, two Playstation

gaming systems, an Xbox gaming system, a .40 caliber Smith and Wesson

handgun, two .380 caliber handguns, and three other guns. The victim’s

roommate testified that the victim sold drugs from their apartment and for this

reason was always careful about whom he allowed inside.

      As of the time of the crimes, Babbage had known the victim for six to

seven years. Babbage had stayed in the victim’s apartment the week prior to the

crimes, had been in the apartment many times, and knew that there were guns,

money, and marijuana there. Babbage had sold a 50-inch TV to the victim a few

weeks prior, and there was testimony that Babbage had recently demanded the

victim sell it back, a demand the victim had refused. A search of Babbage’s

home uncovered a pair of black pants, identified as belonging to Babbage,

bearing blood stains matched to the victim and DNA matched to Babbage.

Babbage’s wife owned a white Chevrolet Malibu, and there was evidence that

Babbage had driven that vehicle on the morning of the crimes. A search of the

Malibu uncovered fingerprints on the exterior of the front passenger side door

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belonging to Hall, a friend of Babbage.

      Hall’s girlfriend, Erin Tew, testified that, on the day before the crimes, she

had overheard a telephone conversation on speaker phone between Hall and

Babbage, in which they discussed “hitting a lick” on a man who had molested

Babbage’s niece and who had guns and drugs. The State established that, at the

time of the murder, the victim was under indictment for child molestation.

      A search of the home Hall shared with his girlfriend uncovered a 12-gauge

shotgun, a .380 caliber handgun, 12-gauge shotgun shells, and .38 caliber live

rounds. In the back yard of the home, investigators also discovered a makeshift

barbeque grill containing ashes and charred clothing remnants. The son and

daughter of Hall’s girlfriend, who also lived in the home, testified that when

they returned home from school on the day of the crimes, Hall, Babbage, and an

unknown third man had “cool” electronic equipment at the house, which

Babbage loaded into his car the following day. They also testified that on the

same day Babbage and Hall had cut off their hair and all three men had used the

backyard grill to burn clothing.

      Tew testified that, on the day of the crimes, she received two text

messages from Hall, the first stating, “I think we f**ked up,” and the second

                                         4
stating, “I think we killed somebody.” Immediately thereafter, she received

electronic photographs showing a sink full of dreadlocks and Hall, who, though

previously having worn dreadlocks and full facial hair, was now bald and clean-

shaven. On the evening of the crimes, Tew testified, Hall told her that “it wasn’t

even worth it” and that “he didn’t even get anything.”

      A cigarette butt recovered from the victim’s apartment was determined to

bear the DNA of co-defendant Phillip Kennebrew. Kennebrew’s girlfriend

testified that, on the morning of the crimes, she had driven Kennebrew to meet

Babbage, who was driving a white Chevrolet. Kennebrew’s girlfriend also

testified that when she saw him later that day he was wearing different clothes

than he had been wearing in the morning. During the investigation, a search

uncovered live .40 caliber Smith and Wesson rounds and 12-gauge shotgun

rounds, as well as a knife, in backpacks belonging to Kennebrew.

      Cell phone records revealed that, on the day of the crimes, 15 separate text

or voice communications took place between Babbage’s cell phone and Hall’s

cell phone. Six of these communications, which occurred during a 36-minute

period around the time of the crimes, were transmitted via the cell tower

servicing the area of the victim’s apartment. The phone records also showed

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seven communications between Babbage’s cell phone and Kennebrew’s cell

phone from that morning.

                             Case No. S14A1286

      1.   Though Babbage has not enumerated the general grounds, we

nonetheless find that the evidence as summarized above was sufficient to enable

a rational trier of fact to conclude beyond a reasonable doubt that Babbage was

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

307 (99 SCt 2781, 61 LE2d 560) (1979). The victim’s blood was found on

Babbage’s pants, and Babbage’s car was seen at the crime scene at the time of

the crimes. Babbage had established motives for the crimes, was familiar with

the victim’s apartment and the valuables kept there, and was likely to have been

able to enter the apartment with the victim’s consent. On the afternoon of the

crimes, Babbage was seen in possession of items identical to those stolen from

the victim’s apartment. He was also observed on that same day cutting his hair

and burning clothing, strongly indicative of an attempt to elude recognition.

There was evidence that Babbage was in the company of, and in frequent cell

phone contact with, both Hall and Kennebrew on the day of the crimes, both of

whom were linked to the crimes independent of the evidence of their association

                                       6
with Babbage. While there is little evidence regarding precisely “who did what”

in the victim’s apartment, there is ample evidence to implicate Babbage either

as a principal or as a party to the crimes. See OCGA § 16-2-20 (persons

“concerned in the commission of a crime,” by way of intentionally aiding and

abetting or intentionally advising, encouraging, or counseling another to commit

such crime, may be charged with and convicted of commission of the crime); see

also Hassel v. State, 294 Ga. 834 (1) (755 SE2d 134) (2014) (evidence regarding

defendant’s presence at crime scene, motive, and conduct before and after crime

was sufficient to establish guilt as an accomplice); Rush v. State, 294 Ga. 388,

389 (1) (754 SE2d 63) (2014) (“‘[p]resence, companionship, and conduct before

and after an offense is committed are circumstances from which participation in

the criminal act may be inferred’”).

      2. Babbage contends that his trial counsel rendered ineffective assistance

in two respects. To establish ineffective assistance of counsel, a defendant must

show that his trial counsel’s performance was professionally deficient and that

but for such deficient performance there is a reasonable probability that the

result of the trial would have been different. Strickland v. Washington, 466 U.

S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355

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(3) (689 SE2d 280) (2010). To prove deficient performance, one must show

that his attorney “performed at trial in an objectively unreasonable way

considering all the circumstances and in the light of prevailing professional

norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). Courts

reviewing ineffectiveness claims must apply a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional performance. Id.

Thus, decisions regarding trial tactics and strategy may form the basis for an

ineffectiveness claim only if they were so patently unreasonable that no

competent attorney would have followed such a course. Id. If the defendant

fails to satisfy either the “deficient performance” or the “prejudice” prong of the

Strickland test, this Court is not required to examine the other. See Green v.

State, 291 Ga. 579 (2) (731 SE2d 359) (2012).

      (a) Babbage first claims his counsel was ineffective for failing to object

to the trial court’s jury instruction on parties to a crime, insofar as the indictment

did not specifically charge Babbage as a party. However, it is well-settled that

the indictment need not specifically charge a defendant as a party to the crime

in order to permit a jury instruction on accomplice liability and authorize a

conviction based thereon. Jennings v. State, 288 Ga. 120 (2) (702 SE2d 151)

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(2010). As counsel cannot be deemed ineffective for failing to make a meritless

objection, see Williams v. State, 289 Ga. 672 (2) (715 SE2d 76) (2011), this

enumeration is without merit.

      (b) Babbage also contends his trial counsel was ineffective for failing to

object to the imposition of a life sentence without the possibility of parole given

the absence of any jury determination that such punishment was appropriate.

Babbage claims that Georgia law permitting trial judges to impose such a

sentence without a jury’s input, OCGA § 16-5-1 (e) (1); Williams v. State, 291

Ga. 19 (1) (727 SE2d 95) (2012), is at odds with United States Supreme Court

precedent delineating the jury’s constitutionally mandated role in the imposition

of enhanced punishment. Apprendi v. New Jersey, 530 U. S. 466 (IV) (120 SCt

2348, 147 LE2d 435) (2000) (holding that any fact, other than that of a prior

conviction, that increases the penalty for a crime beyond the statutory maximum

must be submitted to a jury and proven beyond a reasonable doubt). Babbage

asserts that trial counsel performed deficiently in failing to make this argument

at sentencing.

      We disagree. As we noted in Williams, supra, the Georgia General

Assembly in 2009 amended our murder statute, OCGA § 16-5-1, to add life

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imprisonment without the possibility of parole as an authorized punishment for

murder without regard to whether the State seeks the death penalty. Williams,

291 Ga. at 20.2 Thus, life without parole is now within the range of statutorily

authorized punishments in all but a discrete, narrowly defined subset of murder

cases. OCGA § 16-5-1 (e) (1), (2).3 Because life without parole falls within the

statutory range, Apprendi simply does not apply to this sentencing scheme. See

Apprendi, 530 U. S. at 490 (Sixth and Fourteenth Amendments require jury

determination as to facts that “increase[ ] the penalty for a crime beyond the

prescribed statutory maximum” or “increase the prescribed range of penalties

to which a criminal defendant is exposed”). Consequently, trial counsel’s

failure to make the novel — and, ultimately, unsuccessful — argument that

Babbage now propounds cannot provide the basis for an ineffectiveness claim.

See Rickman v. State, 277 Ga. 277 (2) (587 SE2d 596) (2003) (noting that trial

counsel are under no general duty to anticipate changes in the law and thus only


      2
        As originally enacted, the life without parole provision appeared at subsection
(d) of OCGA § 16-5-1, see Ga. L. 2009, p. 223, § 1; however, that Code section has
since been amended such that the life without parole provision now appears at
subsection (e). See Ga. L. 2014, p. 445, § 1-1.
      3
       Specifically, life without parole is not available for felony murder premised
on second degree child cruelty, as defined in OCGA § 16-5-1 (d).
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rarely could a successful ineffectiveness claim be premised on the failure to

make an objection that would have lacked merit under existing law).

                              Case No. S14A1287

      3. Appellant Hall, unlike Babbage, does challenge the sufficiency of the

evidence in support of his convictions. However, we find that the evidence was

more than sufficient to sustain Hall’s convictions. Jackson, 443 U. S. at 316.

Hall was identified by witness Marvin Evans as the man he saw coming upstairs

from the victim’s apartment just before Evans’ discovery of the crimes; his

fingerprints were found on the car used in the crimes; a search of the home

where Hall lived uncovered various firearms matching the descriptions of those

stolen from the victim’s apartment; Hall was seen on the afternoon of the crimes

with electronic equipment just like that which was stolen; Hall cut off his hair,

shaved his beard, and burned his clothing on the afternoon of the crimes; Hall

was an associate of Babbage, who was implicated in the crimes by evidence

independent of his association with Hall; Hall’s cell phone was shown to have

transmitted several communications with Babbage’s cell phone through a cell

tower in close proximity to the victim’s apartment around the time of the crimes;

and Hall’s own statements to his girlfriend, both via text message and in person,

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corroborated his participation in the murder and robbery. Though Hall asserts

that all the evidence implicating him was circumstantial, see former OCGA §

24-4-6,4 the sheer weight of this evidence effectively defeats the plausibility of

any hypothesis other than that of Hall’s guilt. See Owens v. State, 286 Ga. 821

(1) (693 SE2d 490) (2010).

      4. Hall next contends that the trial court erred in allowing Erin Tew to

testify that Hall was previously incarcerated. During cross-examination, Hall’s

counsel pressed Tew on how long she had known Hall, to which Tew responded

that she had been dating Hall for two-and-a-half years and had known him

slightly longer than that, remarking that “he’s only been out of prison for three

years.” Given that no objection was made at the time Tew gave this testimony,

Hall has failed to preserve this issue for appellate review. See, e.g., Jones v.

State, 292 Ga. 593 (6) (740 SE2d 147) (2013).

      5. Hall also contends his trial counsel rendered ineffective assistance of

counsel in several respects.

      (a) First, Hall makes the general claim that trial counsel failed to


      4
        For trials occurring on and after January 1, 2013, this provision is now
codified at OCGA § 24-14-6.
                                        12
adequately investigate the case, consult with Hall, or prepare for trial. However,

the trial court was authorized to credit counsel’s testimony at the new trial

hearing that he met with Hall several times prior to and during trial, shared with

Hall the State’s discovery materials and explained to Hall his proposed trial

strategy, and, in coordination with his private investigator, interviewed

witnesses, visited the crime scene, and otherwise investigated the case.

Moreover, insofar as Hall has failed to proffer any specific evidence that trial

counsel would have uncovered or alternative strategies counsel would have

pursued had he investigated more thoroughly, Hall cannot establish prejudice

in this regard.

      (b) Hall next contends that trial counsel rendered ineffective assistance by

failing to object during opening statements when the prosecutor referred to the

victim as a “nice kid.” Given that the jury was instructed that opening

statements are not evidence and that this isolated comment was contradicted by

actual evidence that the victim was a drug dealer and accused child molester, we

find no deficient performance in counsel’s failure to object. Moreover, given

the strength of the evidence against Hall, we find no reasonable probability that

the result of Hall’s trial would have been different had counsel responded to the

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remark differently.

      (c) Hall also contends that trial counsel performed in an objectively

unreasonable manner in deliberately characterizing Hall as a drug dealer. Trial

counsel testified at the new trial hearing that his strategy was to present to the

jury a credible alternative explanation for what Hall was doing at the time of the

murder and also to preempt or blunt the effect of the evidence of drugs and drug

paraphernalia found in the search of Hall’s home. Because the phone records

showed that Hall was in the vicinity of the crime scene around the time of the

crimes, counsel chose to argue that Hall was simply at his home — which was

in close proximity to the crime scene — doing what he normally did. Though

this strategy was ultimately unsuccessful, we do not find that it was patently

unreasonable given the nature of the State’s evidence against Hall and the

apparent absence of any alternative strategies.

      (d) Hall’s final contention is that counsel rendered ineffective assistance

in failing to object or request a mistrial when Tew made reference to Hall’s prior

incarceration. See Division 4, supra. However, it is well established that a

witness’ passing reference to a defendant’s past criminal record — particularly

when it is not responsive to the question posed — does not improperly place his

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character in issue. See Lanier v. State, 288 Ga. 109, 110 (2) (702 SE2d 141)

(2010) (“a nonresponsive answer that impacts negatively on a defendant’s

character does not improperly place (his) character in issue” (punctuation

omitted)); Isaac v. State, 269 Ga. 875, 877-878 (5) (505 SE2d 480) (1998)

(“‘passing reference’” to defendant’s criminal history did not create reversible

error). Counsel’s decision not to draw attention to this remark by making an

objection neither constitutes deficient performance nor, given the weight of the

evidence against Hall, resulted in any prejudice.

      Judgments affirmed. All the Justices concur.



                          Decided January 20, 2015.

      Murder. DeKalb Superior Court. Before Judge Flake.

      Ghanayem & Rayasham, Musa M. Ghanayem, Mark J. Issa, Jonathon J.

Majeske, for appellant (case no. A14A1286).

      Anthony S. Carter, for appellant (case no. A14A1287).

      Robert D. James, Jr., District Attorney, Gary D. Bergman, Charles C.

Olson, Charles A. Spahos, Joseph F. Burford, Samuel S. Olens, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K, Smith,

                                       15
Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney

General, for appellee.




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