Georgia Supreme Court Reports

LEE v. STATE, 280 Ga. 521 (2006) LEE v. THE STATE.
S06A0538. Supreme Court of Georgia. DECIDED MAY 17, 2006.

THOMPSON, Justice.

Defendant Johnny Franklin Lee was convicted of malice
murder and possession of a firearm by a convicted felon in
connection with the death of Charles Watford.[fn1] He
appeals, asserting he was denied his right to effective
assistance of counsel. We find no error and affirm.

Construing the evidence in a light favorable to the
verdict, we find the following:

Shortly after he was released from jail, Lee joined friends
and discussed robbing someone to make some quick money. Lee
then went to a gas station to speak with a “fence” who was
interested in buying car wheels. While Lee was at the gas
station, an automobile with 20-inch wheels pulled in.
Watford was a passenger in the automobile. Lee approached a
witness, told her that he had just been released from jail,
asked if she knew one of the occupants of the automobile,
and said he was going to rob him with a gun. Then Lee went
to the automobile, pulled a handgun from the waistband of
his pants, and shot and killed Watford.

1. The evidence was sufficient to enable any rational trier
of fact to find Lee guilty beyond a reasonable doubt of
malice murder and possession of a firearm by a convicted
felon. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61
LE2d 560) (1979). Page 522

2. Relying upon Strickland v. Washington, 466 U.S. 668
(104 SC 2052, 80 LE2d 674) (1984), Lee asserts his trial
counsel was ineffective because he failed to (a) object to
evidence that Lee told a witness he had just been released
from jail; (b) seek a limiting instruction on the use of
his prior felony conviction; and (c) move to sever the
firearm possession count from the other counts of the
indictment. We disagree.

To prevail on an ineffective assistance of counsel claim
under Strickland, a defendant must show that counsel’s
“performance was deficient and that, but for that deficient
representation, there is a reasonable probability that the
proceeding would have ended differently. [Cit.]” Silvers v.
State, 278 Ga. 45, 46 (2) (597 SE2d 373) (2004). To meet
his burden, a defendant must overcome the strong
presumption that his counsel’s representation fell within
the wide range of reasonable professional conduct. Id.

(a) Lee’s statement that he had just been released from
jail was an integral part of the res gestae. Thus, Lee’s
statement was admissible even though it placed his
character in issue. Johnson v. State, 264 Ga. 456 (1) (448
SE2d 177) (1994); Shouse v. State, 231 Ga. 716, 719 (8)
(203 SE2d 537) (1974); Gadson v. State, 223 Ga. App. 342,
344 (2) (477 SE2d 598) (1996). It cannot be said that
counsel rendered ineffective assistance by failing to
object to admissible evidence. Massingill v. State, 240 Ga.
App. 690, 691 (2) (b) (524 SE2d 746) (1999).

(b) In its charge to the jury, the trial court gave
instructions concerning the limited use of Lee’s prior
felony conviction. Thus, trial counsel’s failure to request
a limiting instruction had no effect on the outcome of the
trial.

(c) Finally, trial counsel’s performance was not deficient
simply because he did not move to sever the firearm
possession charge from the other counts of the indictment.
The firearm possession charge was material to the more
serious charges. Thus, it was not incumbent upon the trial
court to bifurcate the trial. Williams v. State, 263 Ga.
135, 136 (1) (429 SE2d 512) (1993).

Judgment affirmed. All the Justices concur.

[fn1] Lee shot and killed Watford on June 13, 2001. Lee was
indicted on September 10, 2001, and charged with malice
murder, two counts of felony murder, predicated on the
underlying felonies of aggravated assault and possession of
a firearm by a convicted felon, and the respective
underlying felonies as well. Trial commenced on December
11, 2001, and the jury returned its verdict of guilty on
all counts on December 13. Lee was sentenced to life in
prison for malice murder and a consecutive term of five
years for the firearm charge. The remaining counts were
merged with the malice murder charge. Lee’s timely filed
motion for a new trial, as amended, was denied on September
7, 2005. Lee filed a notice of appeal on October 7, 2005.
The case was docketed in this Court on November 30, 2005,
and submitted for decision on the briefs on January 23,
2006.

DECIDED MAY 17, 2006.

Murder. DeKalb Superior Court. Before Judge Seeliger.

William F. Rucker, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Robert M.
Coker, Assistant District Attorney, Thurbert E. Baker,
Attorney General, Edwina M. Watkins, Assistant Attorney
General, for appellee. Page 523