Fisher v. State , 299 Ga. 478 ( 2016 )

In the Supreme Court of Georgia
Decided: July 8, 2016
S16A0515. FISHER v. THE STATE.
NAHMIAS, Justice.
Appellant Ronald L. Fisher was found guilty of malice murder and other
crimes in connection with the shooting death of Derrick Cullins. At Appellant’s
trial, the bulk of the evidence against him – including the only testimony
directly identifying him as the shooter – came from David Lewis, who claimed
that he was not involved in the crimes even though he admitted that he drove
Appellant and the victim to the crime scene, was present during the shooting,
and drove Appellant away afterwards.
Appellant’s trial counsel spoke before trial with Jonathan Clark, who said
he would testify that Lewis was a drug dealer and was looking for the victim to
collect on a debt and flashing a revolver – the type of gun used to kill the victim
– two or three days before the shooting. Trial counsel intended to call Clark to
testify on Appellant’s behalf but failed to subpoena or notify Clark, who then
did not show up. Trial counsel also agreed to a jury instruction that the
testimony of a single witness is generally sufficient to establish a fact, without
requesting an instruction on the exception that if the witness is an accomplice,
his testimony must be properly corroborated. We conclude that if Appellant’s
counsel had not represented him deficiently in those two ways, there is a
reasonable probability that the outcome of his trial would have been more
favorable to him.
Accordingly, Appellant has shown that he received constitutionally
ineffective assistance of counsel, and we therefore reverse his convictions.1
However, because the evidence at trial was legally sufficient to support the
guilty verdicts, the State may retry him if it chooses.
1
The victim was killed on May 26, 2009. On June 22, 2010, a Fulton County grand jury
indicted Appellant for malice murder, felony murder, aggravated assault with a deadly weapon, and
possession of a firearm during the commission of a crime. At a trial from July 19-21, 2011, the jury
found Appellant guilty of all charges. On August 24, 2011, the trial court sentenced Appellant to
serve life in prison for malice murder and a consecutive term of five years for the firearm possession
charge; the felony murder verdict was vacated by operation of law, and the aggravated assault verdict
merged. On August 25, 2011, Appellant filed a motion for new trial in which trial counsel asserted
his own ineffectiveness; Appellant was then appointed new counsel, who amended the motion on
May 15, 2013. The trial court held an evidentiary hearing on August 2, 2013, and summarily denied
the motion on October 23, 2014. Appellant filed a timely notice of appeal, and the case was
docketed in this Court for the January 2016 term and submitted for decision on the briefs.
We note that after this case was tried, Appellant was indicted, tried, and convicted for a
murder that occurred in 2005. His appeal in that case is pending in this Court. See Case No.
S16A0852.
2
1. Viewed in the light most favorable to the verdicts, the evidence at
trial showed the following. In May 2009, Laura Terrell lived with her husband
and two children in a townhouse complex called the Park at Lakewood in
southwest Atlanta. Shortly after 4:00 a.m. on May 26, Terrell was awakened by
banging on her front door. She looked out the window of her second-floor
bedroom and saw the victim, dressed in a white tank top, standing at her front
door. She could also hear but not see another man. Terrell asked who was
there, and the victim said, “Hey, where Black at; tell him these folks out here
want their money and they want their pills and they ready to take care of
business; they ready to take care of business.” Terrell replied, “Who is Black?
I don’t even know you,” and the victim responded, “Hey, these folks out here;
they ready to take care of business.” Terrell was afraid that the men were going
to kick in her door, so to stall for time, she said, “Hold on; I can’t see who I’m
talking to; let me go get my glasses.” Instead of getting her glasses, Terrell
called the police and then got down on the floor. She heard gunfire outside her
townhouse as she lay on the floor waiting for help to arrive.
Sunsharin Madden lived in the townhouse next door. She was awakened
by a commotion outside. When she looked out her bedroom window on the
3
second floor, she saw three men arguing about pills and money: the victim,
whom she described as a short, dark-skinned man with a white tank top; a tall
man with a “black” complexion, dreads or braids, and a black shirt, whom she
identified at trial as David Lewis; and a man who was about her height – 5'10"
– and her medium complexion, with a low haircut. Madden saw Lewis drive a
car around to the back of the building, so she went into her sons’ bedroom and
looked out the window to see what he was doing. She then quickly returned to
her bedroom to look out front, where she saw the victim banging on Terrell’s
front door and heard him asking for someone named Black. Madden heard
Terrell reply, “I don’t know anybody named Black,” but the victim kept saying,
“Please, come on, please,” or words to that effect.
Meanwhile, Madden saw the man who was about her height walk to the
side of the building and just stand there. The man eventually walked over to the
victim and said angrily, “I thought you said he had the money or the pills.” The
victim started backing up like he was scared or nervous, and the man raised a
gun and shot the victim, who fell to the ground. The shooter turned around to
leave but then came back and shot the victim twice more; as he stood over the
victim, Madden heard him say something about pills. Madden also heard the
4
shooter, who had a New Orleans accent, say something like “Roady,” which she
recognized as slang used by people from New Orleans. The shooter then walked
to the car and got in with Lewis, who drove them away. Madden called 911 and
went outside, where she found the victim lying dead face down on the ground
next to her van.
Madden was speaking to the police at the scene when she noticed Lewis
in the crowd fidgeting and looking upset. He was still wearing the same clothes,
and Madden pointed him out. The police spoke with Lewis, who was with the
victim’s brother. Lewis at first told the police that he was homeless and had
simply happened upon the scene, but he soon admitted that he saw the shooting
and that he drove the shooter and the victim there and left with the shooter
afterwards.
The police took Lewis to the station, where a detective interviewed him
later that morning. Lewis was emotional and demonstrative about what he had
seen and been through; he explained that he initially lied to the police at the
scene because the events of that night made him afraid for his safety. Lewis said
that he did not know the shooter’s real name but described him as a man of
average height with a medium-brown complexion and a low haircut who spoke
5
with a Cajun or New Orleans-type accent and went by the nickname “Noonie.”
Lewis was allowed to leave. The next day, the detective showed Lewis a
photograph of Appellant, and Lewis said that the man in the photo was the
person that he saw shoot the victim. A warrant was issued for Appellant’s arrest
the following day.
The murder weapon was never found, but ballistics indicated that the
victim was shot with a revolver. The medical examiner determined that the
victim died from a gunshot wound to the chest complicated by gunshot wounds
to the face and back. Despite speaking with family and friends of Appellant in
the area where the shooting took place, the police were unable to locate him.
About ten months after the shooting, Appellant was arrested in Detroit,
Michigan, and he was returned to Georgia for trial.
At trial, Lewis, who was not charged in connection with the shooting,
testified as follows. He had known Appellant for a year-and-a-half, and the
victim was his close friend. On the night of the shooting, Lewis went to the
apartment complex where Appellant and the victim both lived to hang out with
the victim and snort cocaine; Lewis said he often used drugs with the victim.
Around 12:30 or 1:00 a.m., Lewis, the victim, and Appellant were all in the
6
parking lot talking to different people. The victim went over to Appellant, who
gave the victim some pills to sell on consignment. Appellant then walked over
and asked Lewis to drive him to a nearby store to get a six-pack of beer. Lewis
drove Appellant to the store, where they ran into the victim. Appellant and the
victim were talking when Lewis came out of the store, and Lewis heard the
victim tell Appellant, “I’m going to have your money in a minute; I got to go get
it.” Lewis got into the car with Appellant, who said, “He’s taking too long with
my money.” Lewis then drove Appellant back to the apartment complex, where
they hung out in the parking lot drinking beer for the next hour-and-a-half or so.
After they finished drinking the six-pack, Appellant asked Lewis to drive
him to another store that was close to the Park at Lakewood townhouses. On the
way there, they saw the victim, and Lewis pulled to the side of the road so
Appellant could talk to him. Appellant said, “Where’s my money?” and the
victim said, “It’s at the Park at Lakewood . . . ; can I get in?” The victim got
into the backseat, and Lewis drove to the Park at Lakewood and parked in front
of the unit indicated by the victim. The three men got out of the car and stood
there talking for a couple minutes. The victim and Appellant then went up to the
front door and started knocking, and Lewis got back into the car. A woman
7
opened a window and said she did not know the victim or the person that he said
he was looking for, but Appellant and the victim kept banging on the door, with
the victim saying, “I just want the money; I want my money,” and the woman
responding, “I don’t know you.”
Appellant then demanded that the victim give him the money he owed or
give back the pills. The victim took some pills out of his hat and handed them
to Appellant. Appellant put the pills in his pocket and then pulled out a revolver
and shot the victim in the chest. After the victim fell, Appellant stood over him,
shot him in the face, and said, “That’s for stealing.” Appellant then walked back
to the car, got in with Lewis, told him to drive, and said, “That’s how we do in
Louisiana.”
Lewis drove toward the apartment of Ferlando Walker (who did not testify
at trial). On the way there, they passed a police car, and Lewis thought about
running into it so that he could get out of the car and get away. He decided not
to, though, because Appellant still had the revolver in his hand, and Lewis
figured that Appellant would probably shoot him before he could even get out
of the car. When they arrived at Walker’s apartment, Appellant and Lewis went
inside. Appellant spoke with Walker, and Lewis heard Appellant say, “I just
8
shot him.”
Lewis then drove Appellant back to the apartment complex where they
started out. Lewis walked around the corner to the home of a friend who could
help him find the victim’s mother’s apartment so Lewis could tell her what had
happened to her son. Lewis found the victim’s family and told them that the
victim had just been shot and that Lewis saw the shooting; he did not tell them
that he was driving the car. Lewis then returned to the scene of the shooting
with the victim’s brother, where the police approached him.
Appellant testified in his own defense. He said that he was from New
Orleans and had lived in Atlanta for only three years, and he denied knowing the
victim or having any association with him. At first, Appellant also denied
knowing Lewis, but then he acknowledged that he had once “exchanged words”
with Lewis when Appellant was trying to date Lewis’s sister. When asked if he
had ever seen Lewis before, Appellant replied, “Well, maybe when I walked to
the store.” Appellant denied that he had ever had a beer with Lewis, described
Lewis as a “crack head,” and claimed that he did not associate with Lewis’s
family and friends. Appellant flatly denied Lewis’s account and testified that
on the date of the shooting, he did not shoot anybody or tell or encourage
9
anyone to shoot anybody. Appellant claimed that he had never been to the
townhouse complex where the shooting occurred and asserted that the only
reason he was on trial was because Lewis accused him of something that he did
not do.
On cross-examination, Appellant admitted that he has a New Orleans
accent; that he is about 5'9", has a medium complexion, and always had a low
haircut; and that he knew the location of the townhouse complex where the
victim was shot. Appellant also acknowledged that he was friends with
Ferlando Walker and had been to Walker’s apartment. Appellant denied
knowing that there was a warrant out for his arrest, claiming that he was not in
contact with his family or friends in 2009. When pressed about whether he cut
off all contact with his family in the area, Appellant replied, “I would talk to
them, but I had no idea what was going on.” He offered no explanation for his
move to Detroit.
Appellant does not challenge the legal sufficiency of the evidence
supporting his convictions. Nevertheless, in accordance with this Court's
practice in murder cases, we have reviewed the record and conclude that, when
viewed in the light most favorable to the verdicts, the evidence presented at trial
10
and summarized above was sufficient as a matter of constitutional due process
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 he received ineffective assistance of counsel
based on the performance of his trial attorney, Ted Johnson. A claim of
ineffective assistance of counsel based on the quality of the representation
requires a showing of both deficient performance and resulting prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674)
(1984). To show deficient performance, the defendant must demonstrate that
his counsel performed his duties in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing professional
norms. See id. at 687-690. To show resulting prejudice, a defendant must
demonstrate that there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
11
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694. The combined effect of counsel’s unprofessional
errors must be considered in assessing whether the requisite prejudice has been
shown. See Schofield v. Holsey, 281 Ga. 809, 811 n.1 (642 SE2d 56) (2007)
(“The Supreme Court of the United States has held that it is the prejudice arising
from ‘counsel’s errors’ that is constitutionally relevant, not that each individual
error by counsel should be considered in a vacuum.” (citing Strickland, 466 U.S.
at 687)).
(a) Appellant identifies two omissions by Johnson that he
contends were not the result of reasonable professional judgment. He points
first to Johnson’s failure to secure the attendance of Jonathan Clark to testify for
the defense at trial. At the motion for new trial hearing, the State did not object
to the admission of Clark’s affidavit or dispute its contents.2 According to
2
The District Attorney notes in his brief that this Court has in the past approved the use of
affidavits to establish a claim of ineffective assistance of trial counsel at an evidentiary hearing on
a motion for new trial, citing Dickens v. State, 280 Ga. 320, 322 (627 SE2d 587) (2006), as well as
Benjamin v. State, 322 Ga. App. 8, 11 (743 SE2d 566) (2013) (citing Dickens). However, Dickens
and Benjamin were decided under Georgia’s old Evidence Code and relied on former OCGA § 24-
10-40 – a provision that was not carried forward in the new Evidence Code – and the evidentiary
hearing on Appellant’s motion for new trial took place after the effective date of the new Code. See
Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to
any motion made or hearing or trial commenced on or after such date.”). It is unclear whether the
holding of Dickens based on former § 24-10-40 survived the enactment of the new Evidence Code.
12
Clark’s affidavit, he knew Lewis because Lewis was his drug dealer; he also
knew the victim and Appellant, but he never saw Lewis and Appellant together;
he spoke to Johnson by telephone before the trial and knew that Johnson was
Appellant’s attorney; he told Johnson that he saw Lewis flashing a revolver
while looking for the victim to collect on a debt two or three days before the
shooting; he gave Johnson his contact information but never again heard from
Johnson; and he was available and willing to testify at Appellant’s trial but was
not aware that the trial had been scheduled until it was over.
Johnson put Clark on the defense’s witness list and testified at the motion
for new trial hearing that he fully intended to call Clark to testify at trial, both
to attack Lewis’s credibility directly (as on cross-examination, Lewis vigorously
denied the encounter with Clark recounted in Clark’s affidavit) and to establish
that Lewis was at least an accomplice to the shooting. Johnson’s only
explanation for his failure to subpoena Clark was that “since Mr. Clark was
associated with [Appellant], I attempted to have him just to show up on his own
free will,” although Clark’s affidavit indicates that he was never even notified
We have no occasion to decide that question in this case, however, because the State did not object
to the admission of Clark’s affidavit at the hearing on this ground or any other, and the State does
not argue on appeal that the trial court erred in admitting Clark’s affidavit as substantive evidence.
13
of the trial date.
The State does not dispute that Johnson was professionally deficient in
failing to secure Clark’s attendance at trial.3 Unlike many cases involving this
issue, there is no indication that Johnson had concerns about Clark’s potential
testimony or credibility that might have provided a reason not to call him to
testify despite listing him on the defense’s witness list. See, e.g., Bryant v.
State, 298 Ga. 703, 708 (784 SE2d 412) (2016) (“It was not unreasonable for
trial counsel to make a strategic decision declining to put forward an
uncooperative alibi witness or an alibi witness who would have provided
conflicting testimony.”); Fortson v. State, 280 Ga. 435, 437 (629 SE2d 798)
(2006) (concluding that the defendant did not show deficient performance where
his trial counsel did not call an alleged alibi witness due to concerns about her
credibility).
To the contrary, Johnson apparently thought that Clark would just show
up and wanted him to testify, but did not subpoena him to ensure that Clark
would appear or that Appellant would be able to have the trial continued if Clark
3
In their briefs to this Court, the Attorney General ignores the question of deficient
performance with respect to Clark, while the District Attorney pretermits this question and focuses
instead on Appellant’s alleged failure to show resulting prejudice.
14
did not appear. See OCGA § 17-8-25 (“In all applications for continuances
upon the ground of the absence of a witness, it shall be shown to the court that
the witness . . . has been subpoenaed . . . .”). Accordingly, we conclude that
Appellant has shown that Johnson was professionally deficient in failing to
subpoena Clark or otherwise secure his attendance at trial.
Appellant also points to Johnson’s failure to request that the trial court
instruct the jury on former OCGA § 24-4-8, which was in effect at the time of
Appellant’s trial and said that in felony cases the testimony of a single witness
whom the jury finds to be an accomplice is not sufficient to prove a fact.4
Johnson testified at the motion for new trial hearing that his failure to request
such an instruction was a simple “oversight,” adding, “It certainly was not trial
strategy; [it was] something that I overlooked to request of the court.”
4
Former OCGA § 24-4-8 said:
The testimony of a single witness is generally sufficient to establish a fact. However,
in certain cases, including prosecutions for treason, prosecutions for perjury, and
felony cases where the only witness is an accomplice, the testimony of a single
witness is not sufficient. Nevertheless, corroborating circumstances may dispense
with the necessity for the testimony of a second witness, except in prosecutions for
treason.
This provision was carried forward in the new Evidence Code as OCGA § 24-14-8, and we give the
new provision the same meaning as the old one. See Bradshaw v. State, 296 Ga. 650, 654 (769 SE2d
892) (2015).
15
The State does not contend that Johnson’s failure to request an accomplice
corroboration instruction was an exercise of reasonable professional judgment.
Lewis’s admission of his involvement with Appellant in the events before,
during, and after the shooting, along with his initial lies to the police at the crime
scene, could support a finding that Lewis was an accomplice and not merely
present for the crimes as he claimed on the witness stand. See Hicks v. State,
287 Ga. 260, 262 (695 SE2d 195) (2010) (“To authorize a requested jury
instruction, there need only be slight evidence supporting the theory of the
charge.”); Babbage v. State, 296 Ga. 364, 367 (768 SE2d 461) (2015)
(“[E]vidence regarding defendant’s presence at crime scene, motive, and
conduct before and after crime was sufficient to establish guilt as an
accomplice.”). See also Hamm v. State, 294 Ga. 791, 794 (756 SE2d 507)
(2014). And the defense theory was that Lewis was trying to shift blame from
himself and should not be believed regarding Appellant’s involvement in the
crimes.
Given the importance of Lewis’s testimony to the State’s ability to prove
its case against Appellant, it would have been entirely unreasonable for Johnson
to make a “strategic decision” to approve the trial court’s instruction to the jury
16
that “generally, the testimony of a single witness, if believed, is sufficient to
establish a fact,” without insisting that the court also instruct the jury that this
general rule did not apply to Lewis’s testimony if the jury found him to be an
accomplice. See Stanbury v. State, Case No. S16A0321, 2016 WL 2946426, at
*3-5 (May 23, 2016) (holding that the trial court committed plain error in a case
involving accomplice testimony by failing to charge the jury on former OCGA
§ 24-4-8’s corroboration requirement, where the court instructed the jury that
testimony by a single witness can prove a fact). See also Reed v. State, 294 Ga.
877, 882 (757 SE2d 84) (2014) (“[D]ecisions 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.”).
Thus, we agree with Appellant that Johnson’s failure to request an accomplice
corroboration instruction also constituted deficient performance under
Strickland.
(b) Whether sufficient prejudice resulted from trial counsel’s two
deficiencies is a closer and more disputed question. As mentioned previously,
Appellant must show that there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
17
different,” which means “a probability sufficient to undermine confidence in the
outcome” of his trial. Strickland, 466 U.S. at 694. In determining whether
Appellant has satisfied this prejudice standard, we must consider the effect of
his counsel’s two errors not in insolation but in combination, see Schofield, 281
Ga. at 811 n.1, reviewing the record de novo and weighing the evidence as
reasonable jurors would have done, see Woodard v. State, 296 Ga. 803, 810 n.5
(771 SE2d 362) (2015). Applying these principles, we conclude that Appellant
has shown the prejudice needed to prevail on his ineffective assistance claim.
We start with the recognition that the lynchpin of the State’s case against
Appellant was the credibility of David Lewis. There was no forensic evidence
linking Appellant to the victim, the crime scene, or the murder weapon. Neither
of the two women from the townhouse complex testified that Appellant was
there during the shooting. Terrell saw only one man, the victim, although she
heard a second man and the victim referred to “the[m],” indicating the presence
of someone else. Madden saw the victim, Lewis, and the third man she said was
the shooter, for whom she offered only a general description – about 5'10",
medium complexion, with a low haircut and a New Orleans accent. This
description matched Appellant, but it would match innumerable other men in
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Atlanta as well, except perhaps for the accent (and we note in this respect that
Lewis admitted on cross-examination that although he is from Atlanta, he is
known in the community as “N.O.,” or New Orleans, because of his voice).
There was also Appellant’s admission that he was acquainted with Lewis,
although he flatly denied any closer association, and Appellant’s unexplained
move to Detroit around the time of the shooting. Put together, this
circumstantial evidence might well constitute the “slight” evidence necessary to
corroborate an accomplice’s testimony and allow a conviction under former
§ 24-4-8, see Cowart v. State, 294 Ga. 333, 344 (751 SE2d 399) (2013), but it
would not have been sufficient to prove Appellant’s guilt beyond a reasonable
doubt.
That depended on the jurors believing what Lewis told them. His
testimony presented him as a pitiable drug user who got caught up in events
beyond his control with a dangerous and violent drug dealer – Appellant – who
unexpectedly killed his good friend and then made him drive Appellant around
in fear of being shot, after which he compassionately notified the victim’s
family and cooperated with the police despite some initial hesitation.
Clark’s affidavit paints a very different picture of Lewis, his relationship
19
with the victim, and his potential role in the fatal shooting. According to Clark,
Lewis was himself a drug dealer, and Lewis was looking for the victim and
flashing a revolver – the type of gun used to kill the victim – just days before the
shooting. As Lewis admitted and Madden confirmed, Lewis drove both the
victim and the shooter to the crime scene, was present during the shooting, and
then drove the shooter away. So as Johnson recognized, Clark’s testimony
would have provided critical support for the defense theory that Lewis was at
least an accomplice if not the shooter himself, and that he falsely implicated
Appellant in a successful attempt to deflect blame and portray himself as another
of Appellant’s victims.
The State points out that Clark did not witness the murder, that Johnson
vigorously cross-examined Lewis, and that there was some evidence
corroborating Lewis’s testimony. Clark did not purport to be able to identify the
shooter, but his testimony would have impeached the State’s only witness who
claimed to identify the shooter. Johnson did attempt to cross-examine Lewis
using the information he had obtained from talking to Clark before the trial. But
when Johnson asked Lewis if he had told Clark that he was looking for the
victim before the shooting because the victim owed him money, Lewis flatly
20
denied it. Johnson then was stuck with the denial, because Clark was not there
to testify to the contrary. Likewise, without Clark, Johnson had no way to
present substantive evidence that Lewis was flashing a revolver – the type of
gun used in the murder and a type of gun not linked to Appellant except by
Lewis’s testimony.
As for the evidence corroborating Lewis’s identification of Appellant as
the shooter, the State confuses the slight amount of evidence needed for the jury
to find sufficient corroboration in order to rely on an accomplice’s testimony
with the amount of evidence needed to independently prove the defendant guilty
beyond a reasonable doubt so that the failure to give the jury a proper
accomplice corroboration instruction could cause no prejudice. See, e.g., Hayes
v. State, 281 Ga. App. 749, 751 (637 SE2d 128) (2006) (holding that trial
counsel’s alleged deficiency in not requesting an accomplice corroboration
instruction resulted in no prejudice where the State “adduced ample evidence
wholly sufficient to warrant the verdict (independent of the accomplice’s
testimony),” including “the testimony of the victim of his armed robbery, . . .
two eyewitnesses who were nearby, [and] a police officer who intercepted the
vehicle in which [the defendant] was attempting to escape”). As already
21
discussed, the evidence aside from Lewis’s testimony falls short of that higher
standard.
Even without Clark’s testimony, Johnson should have requested an
accomplice corroboration instruction advising the jury of the requirements of
former OCGA § 24-4-8. As discussed earlier, there was enough evidence to
demand such a charge, which would have told the jurors that Lewis was
potentially not like the other witnesses they heard, on whom the trial court
instructed them they were entitled to base their entire verdict; instead, they
would need to determine if Lewis was actually an accomplice and then
determine if they could believe what he said not only in the way they evaluated
the other witnesses but because the State had presented other evidence
corroborating his identification of Appellant as a participant in the shooting.
Adding Clark’s testimony to the mix would have significantly bolstered the
basis for the jury instruction, the likelihood that the jurors would find Lewis to
be an accomplice, and the likelihood that they would disbelieve what Lewis told
them.
The parties’ closing arguments only magnified the effect of Johnson’s
deficiencies. Johnson focused on Lewis’s lack of credibility and the State’s
22
failure to present evidence corroborating his identification of Appellant as the
shooter – but without an accomplice corroboration instruction from the court to
support his contentions legally, and without Clark’s testimony to support them
factually. The State told the jury directly that Lewis’s testimony alone was
enough to prove Appellant’s guilt, because “testimony of a single witness alone
can prove a fact.” The State also asserted that the testimony of the medical
examiner, the firearms expert, and the two witnesses from the townhouse
complex corroborated various aspects of Lewis’s testimony other than his
identification of Appellant as the shooter – which is an appropriate way to
corroborate most witnesses, but insufficient to corroborate an accomplice. See
Crawford v. State, 294 Ga. 898, 901 (757 SE2d 102) (2014) (“[A]ccomplice
corroboration of only the chronology and details of the crimes is not sufficient[;]
. . . there must be some independent evidence tending to show that the defendant
himself was a participant in the crimes.”).
There is nothing incredible in Clark’s affidavit, the State has not disputed
what it says, and the trial court indicated no concern about accepting it as true.
Nevertheless, had Clark testified, the jury could have chosen not to believe what
he said about Lewis. But that is exactly the point. Due to the deficient
23
performance of Appellant’s trial counsel, the jurors who found him guilty did
not have the opportunity to hear Clark testify or to consider the evidence they
did hear with the instruction that if they found Lewis to be an accomplice to the
shooting, they must treat him unlike the other witnesses and decide whether his
identification of Appellant was corroborated by other evidence. A jury that
heard Clark and was properly instructed might reach the same verdict, but we
cannot say that with confidence. See Stanbury, 2016 WL 2946426, at *4 (“A
trial court’s failure to give an accomplice corroboration instruction when a
defendant is affirmatively identified as the . . . gunman in a murder based solely
on accomplice testimony undermines the fairness of the proceedings, at least
when coupled with the express authorization by the court for the jury to
establish critical facts based solely on this testimony.”).
Accordingly, we conclude that Appellant has carried his burden to show
that his trial counsel’s deficient performance resulted in prejudice as defined in
Strickland. His convictions must therefore be reversed, although the State may
choose to retry him. See Cowart, 294 Ga. at 343-344.
Judgment reversed. All the Justices concur.
24