In the Supreme Court of Georgia


                                       Decided: September 12, 2016


                 S16A0699. MCCLENDON v. THE STATE.
                    S16A0700. BURKS v. THE STATE.


      HUNSTEIN, Justice.

      Appellants Johnny McClendon and Marquice Burks were tried jointly and

convicted of malice murder and related offenses in connection with the April

2007 shooting death of Christopher Crawford.1 Both men now appeal. Though
      1
         On March 19, 2010, a Fulton County grand jury indicted co-defendants
Johnny McClendon, Marquice Burks, and Courtney Franklin together as follows:
malice murder (count 1), felony murder predicated on aggravated assault (count 2),
felony murder predicated on possession of a firearm by a convicted felon (count 3),
aggravated assault with a deadly weapon (count 4), possession of a firearm during the
commission of a crime (count 5), and possession of a firearm by a convicted felon
(count 6 - Burks, count 7 - Franklin, count 8 - McClendon). Franklin was also
charged with three additional counts of criminal solicitation to commit murder of
State’s witnesses and one count of conspiracy escape. After a five day joint trial in
April 2010, the three co-defendants were convicted of all charges. Both McClendon
and Burks were sentenced to life for malice murder, plus consecutive suspended time
for the two weapons charges, for a total sentence of life plus 10 years suspended.
Although the trial court purportedly merged the two felony murder counts and the
aggravated assault into Appellants’ malice murder convictions, as discussed in
Division 5 below, the “merger” of the felony murder convictions was error. Each
appellant timely filed a motion for new trial, which were respectively amended, and,
following a joint hearing on August 19, 2014, the trial court denied both motions.
Each appellant timely filed a notice of appeal, both of which were docketed to the
we find no merit in any of the pre-trial and trial phase enumerations raised by

Appellants, we agree with Burks that the trial court erred during sentencing

when it failed to recognize that his felony murder verdicts were vacated by

operation of law. Further, although not raised by McClendon, the trial court’s

purported merger of his felony murder verdicts was similarly erroneous. See

Hulett v. State, 296 Ga. 49 (2) (766 SE2d 1) (2014) (merger error, even if not

raised by the parties, may be addressed by appellate court sua sponte).

Therefore, we must vacate those aspects of the sentences.

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

adduced at trial established as follows. Victim Crawford was shot and killed on

the evening of April 13, 2007, in a West Atlanta neighborhood. At the time, co-

defendant Franklin, a local pimp, was on unfriendly terms with Crawford, whose

“baby mother,” Natasha Hurst, had begun working as a prostitute for Franklin.

Franklin and Crawford often exchanged taunts and threats when they

encountered each other on the street.




April 2016 term of this Court and were thereafter submitted for decision on the briefs.
This Court has already affirmed Franklin’s convictions and sentences. See Franklin
v. State, 298 Ga. 636 (784 SE2d 359) (2016).
                                          2
      On the day of the shooting, Crawford and others were gathered in and

around the neighborhood KFC, and Franklin was driving around the area. At

one point, Crawford challenged Franklin to get out of his car and fight, to which

Franklin replied that he would kill Crawford “with this .45.” Later in the day,

Crawford noticed Natalie Crews, a prostitute associated with Franklin, alone

outside the KFC and announced he was going to “rob that ho.” Crawford exited

the restaurant, approached Crews, and robbed her of the $5 she had on her

person.

      Crews found Franklin at a nearby gas station and informed him of the

robbery. Franklin made a series of phone calls, during which he discussed

getting a gun and killing Crawford. Crews testified that she and Franklin, who

was driving her blue Chevy Cobalt, left the gas station and met up with

Marquice “Queesy” Burks with whom Crews’ sister Teresa – also a prostitute

working for Franklin – had had a sexual relationship. Burks, who was

accompanied by another man unfamiliar to Crews, arrived in a red Chevy Cobalt

belonging to Teresa. After the meeting, Crews testified, she and Franklin drove




                                        3
back to the area around the KFC, with Franklin talking on his cell phone,

attempting to locate Crawford.

      Witnesses Jarvis Green and Shaketa Edwards Ba, who were at the KFC

that day, testified that Franklin called them after the robbery to warn them to

leave the KFC because he planned to come “show everybody I ain’t playing.”

Hurst, who was also present, testified that Franklin stated that Crawford would

“feel this .45” “since he went and robbed one of my hos.” These witnesses

urged Crawford to leave the area, but he refused.

      Sometime later, Crawford departed the nearby home of a friend and was

walking down the sidewalk with Hurst.           Hurst testified that they were

approached from the opposite direction by a male with his face partially covered

by some article of clothing, who walked past them, then turned and shot at

Crawford from behind. Green and Ba, who were standing together nearby, both

testified that they saw a man with his face partially covered exit a red car, walk

past Crawford and Hurst, turn and fire at Crawford, and return to the red car to

flee. Crawford died at the scene from a gunshot wound to the back, which

traversed his heart.

      Teresa Crews testified that on the night of the shooting, after prostituting

                                        4
on Cleveland Avenue, she was picked up by Franklin and her sister Natalie.

When she and her sister parted from Franklin, Teresa testified, he instructed

them to “lay low.” When the sisters subsequently went to retrieve Teresa’s car

from Burks, he told them about the shooting and remarked that, had he known

that the robbery he was avenging involved a mere five dollars, he would never

have agreed to it. Both sisters identified Burks as the person they knew as

“Queesy.”

      Several months after the shooting, Green contacted Atlanta Police

Department homicide detective A.C. Smith with information regarding the case.

Green, who at the time was in jail on unrelated drug charges, testified at trial

that he had been approached by another jail inmate, who admitted that he, along

with Burks, at Franklin’s behest, had shot Crawford in retaliation for the robbery

of Franklin’s prostitute. Thereafter, Green identified Johnny McClendon from

a photographic lineup as the person who had made this jailhouse statement.

Witness Ba also identified McClendon from a photo lineup as having been the

shooter, noting that she recognized him by his distinctive eyes.

      The State also adduced evidence of communications between cell phones,



                                        5
one registered to Franklin and the other to Burks’ girlfriend, spanning the day

of the shooting, ending just minutes after the shooting was reported to police;

these communications were transmitted from the cell tower covering the vicinity

of the crime scene. Franklin’s cell phone was disconnected the day after the

shooting.

      In addition, the State presented evidence that both Franklin and

McClendon had made threats to Green after learning he was cooperating with

investigators. The State also offered recordings of phone calls made by Franklin

from jail in which he issued directives to kill Natalie Crews and Green because

they had given statements to police inculpating him in Crawford’s murder.

      1. Though not raised by either Appellant, we find that the evidence as

summarized above was sufficient to enable a rational trier of fact to conclude

beyond a reasonable doubt that both McClendon and Burks were guilty of the

crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307 (99

SCt 2781, 61 LE2d 560) (1979).

                              Case No. S16A0699

      2.    McClendon contends that his trial counsel rendered ineffective

assistance for failing to move for a mistrial during closing argument after Burks’

                                        6
attorney impermissibly commented on McClendon’s right not to testify. We

disagree.

      To establish ineffective assistance of counsel, a defendant must show that

his 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. See Strickland v. Washington, 466 U.S. 668 (104

SCt 2052, 80 LE2d 674) (1984). If the defendant fails to satisfy either 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). Although the trial court failed

to make any specific factual findings regarding McClendon’s ineffectiveness

claim, “[r]emand is not mandated if we can determine from the record that the

defendant cannot establish ineffective assistance of counsel under the two-prong

test set forth in Strickland.” (Citations omitted.) Ruiz v. State, 286 Ga. 146, 149

(2) (b) (686 SE2d 253) (2009).

      The record shows that, during closing arguments, counsel for co-

defendant Burks made the following statement:

       The next thing that happens in this investigation is Jarvis Green
       calls the detective on September 27th and tells him that he is in the


                                         7
       jail cell with Johnny McClendon and that my client is the driver
       but the police think it is his girlfriend. I would have loved to cross-
       examine Mr. McClendon on that statement, whether he made that
       statement, what he meant by that statement, if he said that
       statement at all.

Trial counsel objected, arguing that Burks’ attorney had commented on

McClendon’s right to remain silent; however, counsel did not move for a

mistrial at this time. At the motion for new trial hearing, trial counsel testified

that he made a tactical decision not to move for a mistrial during closing

argument. Specifically, counsel recalled that the State’s key witness, Jarvis

Green, was in custody at the time, and counsel did not want to risk a less

effective second cross-examination of Green if he were released from custody

prior to a new trial.

      Though the trial court failed to make specific findings of fact with respect

to this claim, it is evident from the record that trial counsel’s strategic decision

regarding a mistrial was not objectively unreasonable. 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). “A court considering a claim of ineffective assistance must

                                         8
apply a ‘strong presumption’ that counsel’s representation was within the ‘wide

range’ of reasonable professional assistance.” (Citation omitted). Harrington

v. Richter, 562 U.S. 86, 104 (IV) (131 SCt 770, 178 LEd2d 624) (2011). To

overcome that presumption, McClendon must show that no reasonable counsel

would have failed to move for a mistrial. See, e.g., Jones v. State, 292 Ga. 593

(7) (d) (740 SE2d 147) (2013); Hartsfield v. State, 294 Ga. 883, 888 (3) (b) (757

SE2d 90) (2014) (“The proper assessment is ‘an inquiry into the objective

reasonableness of counsel’s performance, not counsel’s subjective state of

mind.’” (citing Harrington, 562 U.S. at 110)). Here, McClendon has failed to

establish that trial counsel’s strategic decision not to move for a mistrial was

deficient performance. Accordingly, his ineffectiveness claim is without merit.

      3.    McClendon further argues that the trial court erred in denying his

motion to sever his trial from that of his two co-defendants. In non-death

penalty cases, “a trial court has the discretion to grant or deny a severance in a

joint trial.” Ballard v. State, 297 Ga. 248, 255 (8) (773 SE2d 254) (2015). See

also OCGA § 17-8-4. The three factors a trial court should consider when

determining whether to grant or deny a motion to sever are:



                                        9
      1) whether the number of defendants will confuse the jury as to the
      evidence and the law applicable to each defendant; 2) whether,
      despite cautionary instructions from the court, there is a danger that
      evidence admissible against one defendant will be improperly
      considered against another defendant; and 3) whether the defenses
      of the defendants are antagonistic to each other or to each other’s
      rights of due process.

Green v. State, 274 Ga. 686, 687-688 (2) (558 SE2d 707) (2002). “It is

incumbent upon the defendant who seeks a severance to show clearly that he

will be prejudiced by a joint trial, and in the absence of such a showing, the trial

court’s denial of a severance motion will not be disturbed.” Id. at 688.

      McClendon has failed make the required showing of prejudice. First,

there is no indication that the jury confused the evidence or the law applicable

to McClendon and his co-defendant as all three defendants were largely charged

with the same offenses that stemmed from the same evidence and fact pattern.

Further, the jury was instructed on mere association, mere presence, and parties

to a crime and the jury returned a separate verdict for each defendant pursuant

to the trial court’s instruction. Next, contrary to McClendon’s assertions, it is

highly unlikely that the evidence admitted against his co-defendants was

improperly considered against him, especially since there was overwhelming

evidence that the defendants knew one another and acted in concert to murder

                                        10
the victim. Finally, McClendon does not argue, nor does the record show, that

the defenses of the co-defendants were antagonistic. Based on the foregoing,

the trial court did not abuse its discretion in denying McClendon’s motion to

sever.

                                Case No. S16A0700

         4. Burks contends that the trial court erred by admitting the hearsay

statements of co-defendant McClendon at trial in violation of his Sixth

Amendment right to confrontation. Prior to trial, Burks moved in limine to

prevent Green from testifying regarding his jailhouse conversation with

McClendon. The trial court denied Burks’ motion. Green testified at trial, and

McClendon did not. Burks now claims that the admission of McClendon’s

inculpatory statements was error because, he says, the State failed to show the

existence of a conspiracy and because the State failed to establish the required

indicia of reliability in violation of the Confrontation Clause. We disagree.

         A)     Conspiracy Claim

         In his pre-trial motion, Burks relied upon former OCGA § 24-3-522 to

         2
             Former OCGA § 24-3-52 states, in relevant part, as follows: “The
confession of one joint offender or conspirator made after the enterprise is ended shall


                                          11
argue that McClendon’s jailhouse statements were inadmissible because they

were made after the criminal enterprise had ended. However, Burks did not

argue either prior to or during trial that the statements were inadmissible because

a conspiracy did not exist at the time they were made, nor did Burks cite to any

legal authority to support this position. Now, on appeal, Burks argues that the

statements were inadmissible because the State failed to prove the existence of

a conspiracy pursuant to former OCGA § 24-3-53.

      Because Burks raises an issue on appeal that was not presented or ruled

upon by the trial court, his argument is not preserved for review by this Court.

See Higuera-Hernandez v. State, 289 Ga. 553, 555 (2) (714 SE2d 236) (2011)

(Citation omitted.) (“Standard practice in Georgia has long required a party to

make and obtain a ruling on an objection to evidence in the trial court, before or

as the evidence is admitted, in order to preserve the objection for appeal, and

standard practice also allows parties to raise on appeal only the same objections

that were properly preserved below.”). Moreover, prior to trial, Burks argued
be admissible only against himself.” Because this code section was in effect at the
time of Appellants’ trial, and was relied upon by Burks in his pre-trial motion in
limine, we analyze his claim under the former code section.
      3
        “After the fact of a conspiracy is proved, the declarations by one of the
conspirators during the pendency of the criminal project shall be admissible against
all.”
                                        12
that the statements were inadmissible because the enterprise had ended before

the conversation took place; this assertion acknowledges the existence of a

conspiracy at the time the statements were made. See Franklin v. State, 298 Ga.
636, 639 (2) (784 SE2d 359) (2016) (“For purposes of the [co-conspirator]

hearsay exception, a conspiracy is deemed to endure so long as the parties

thereto attempt to conceal either the crime itself or the identity of the

perpetrators.”). See also Young v. State, 291 Ga. 627 (3) (732 SE2d 269)

(2012); Allen v. State, 288 Ga. 263 (4) (702 SE2d 869) (2010).

Consequentially, this claim is not preserved for appellate review.

      B)    Indicia of Reliability

      Burks also argues, as he did below, that the trial court erred in admitting

Green’s hearsay testimony because the State failed to show the required indicia

of reliability as established in Copeland v. State, 266 Ga. 664 (469 SE2d 672)

(1996), and Dutton v. Evans, 400 U.S. 74 (91 SCt 210, 27 LE2d 213) (1970),

therefore violating his Sixth Amendment right to confrontation. The State,

however, argues that, in light of the decision by the United States Supreme

Court in Whorton v. Bockting, 549 U.S. 406 (127 SCt 1173, 167 LE2d 1)



                                       13
(2007), the “indicia of reliability” test established in Copeland is no longer good

law. We agree with the State.

      As we explained in co-defendant Franklin’s appeal, “the Dutton paradigm

is no longer applicable in light of Crawford v. Washington, 541 U.S. 36, 68-69

(124 SCt 1354, 158 LE2d 177) (2004), which held that the Confrontation Clause

applies only to out-of-court statements that are testimonial in nature.”

(Emphasis added.) Franklin, 298 Ga. at 640. Accordingly, just as in Franklin,

we will assess the alleged Confrontation Clause violation pursuant to Crawford

and its progeny.

      In Crawford, the United States Supreme Court overturned the “indicia of

reliability” test as laid out in Ohio v. Roberts, 448 U.S. 56 (100 SCt 2531, 65

LE2d 597) (1980), holding that a Confrontation Clause violation occurs when

a declarant is unavailable to be called as a witness, was not previously subject

to cross-examination, and when the statements to be introduced at trial are

“testimonial”4 in nature. See also Jackson v. State, 291 Ga. 22, 24 (2) (727

SE2d 106) (2012) (“The Confrontation Clause imposes an absolute bar to


      4
        “A statement is testimonial if its primary purpose was to establish evidence
that could be used in a future prosecution.” (Citations omitted). Franklin, 298 Ga.
at 640.
                                        14
admitting out-of-court statements in evidence when they are testimonial in

nature, and when the defendant does not have an opportunity to cross-examine

the declarant.”).     In other words, “[u]nder Roberts, an out-of-court

nontestimonial statement not subject to prior cross-examination could not be

admitted without a judicial determination regarding reliability.” Whorton, 549
U.S. at 420. However, under Crawford, “the Confrontation Clause has no

application to such statements and therefore permits their admission even if they

lack indicia of reliability.” Whorton, 549 U.S. at 420. Thus, the question of

whether hearsay evidence violates the Confrontation Clause turns, not on indicia

of reliability, but rather on whether the hearsay statement is testimonial.

      Relying on United States Supreme Court precedent, this Court has held

that statements properly admitted pursuant to the co-conspirator hearsay

exception do not qualify as “testimonial” statements which implicate Sixth

Amendment protections. See McKinney v. State, 281 Ga. 92, 95 (4) (635 SE2d

153) (2006) (“Statements admissible pursuant to the hearsay exception

permitting the use of statements made in furtherance of a conspiracy are not

‘testimonial’ . . . Accordingly, the holding in Crawford is not applicable to the



                                       15
admission of the statements of the co-conspirators made during the pendency of

the conspiracy.”) (citations omitted); Favors v. State, 296 Ga. 842 (2) (770 SE2d

855) (2015); Billings v. State, 293 Ga. 99 (4) (745 SE2d 583) (2013).

         Here, the statements made by McClendon and testified to by Green were

not testimonial and therefore did not violate the Confrontation Clause. Further,

we agree with the State that the “indicia of reliability test” established by this

Court in Copeland is no longer good law. We therefore disapprove of Copeland

and its progeny in this regard.

         5.   Like McClendon, Burks argues that the trial court abused its

discretion by failing to sever his trial from his co-defendants. For the reasons

discussed in Section 3, supra, we disagree. Consequently, this claim has no

merit.

                          Sentencing of Both Defendants

         6.   Finally, Burks has alleged that the trial court erred during sentencing

by merging his two felony murder convictions into his malice murder charge

instead of vacating them. While the evidence was sufficient to sustain Burks’

convictions, we do find error in his sentences, as well as McClendon’s

sentences.

                                          16
      As noted in footnote 1, supra, Burks and McClendon were found guilty

of malice murder, felony murder predicated on aggravated assault, felony

murder predicated on possession of a firearm by a convicted felon, aggravated

assault, possession of a firearm during the commission of a crime, and

possession of a firearm by a convicted felon. The trial court sentenced both men

to life imprisonment for the malice murder conviction, five years suspended for

possession of a firearm during the commission of a crime to run consecutively

to malice murder, and another five years suspended for possession of a firearm

by a convicted felon to run consecutively to the other weapons charge, for a total

sentence of life plus ten years suspended. The trial court then purportedly

merged the Appellants’ felony murder counts and aggravated assault charges

into their respective malice murder convictions. However, the felony murder

counts did not “merge” but were vacated by operation of law. See Favors, 296
Ga. at 847-848 (holding that felony murder verdicts did not “merge” into a

malice murder verdict, but were instead vacated by operation of law); Hurt v.

State, 298 Ga. 51 (779 SE2d 313) (2015). Accordingly, we vacate both Burks’

and McClendon’s felony murder convictions. We do note that the trial court



                                       17
properly merged both Appellants’ aggravated assault charges into their malice

murder convictions. See Favors, 296 Ga. at 848; Hulett v. State, 296 Ga. 49 (2)

(766 SE2d 1) (2014).

      Judgments affirmed in part and vacated in part. All the Justices concur.




                                      18