Harris v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.
In the Supreme Court of Georgia
Decided: August 9, 2022
S22A0675. HARRIS v. THE STATE.
PETERSON, Presiding Justice.
Juan Keon Harris was convicted of murder and other crimes
committed against Tony Morris. 1 On appeal, Harris argues that the
1The crimes took place on September 29, 2001. Harris was first indicted
by a Fulton County grand jury on January 15, 2002. He was reindicted on May
5, 2006. The 2006 indictment, on which Harris was tried, charged him with
malice murder (Count 1), two counts of felony murder, predicated on criminal
attempt to commit armed robbery and aggravated assault (Counts 2-3),
aggravated assault with a deadly weapon (Count 4), and possession of a
firearm during commission of a felony, predicated on aggravated assault
(Count 5). Harris filed a motion to dismiss the indictment on May 9, 2007,
claiming that his rights to a speedy trial had been violated. The trial court
denied the motion on June 18, 2007. This Court affirmed. See Harris v. State,
284 Ga. 455 (667 SE2d 361) (2008). Harris was tried by a jury in December
2008. He was acquitted of felony murder predicated on attempted armed
robbery (Count 2), but found guilty of the other charges. The trial court
sentenced Harris to life imprisonment on Count 1 and merged Count 4 into it;
Count 3 was vacated by operation of law. On Count 5, the court imposed a
sentence of five years to be served consecutively.
Harris timely filed a motion for new trial on January 12, 2009. New
counsel amended the motion in October 2018 and March 2020. Following a
hearing, the trial court denied Harris’s motion in a written order dated
January 4, 2022. Harris timely filed a notice of appeal to the Court of Appeals,
trial court should have granted him a continuance to call missing
witnesses and that his trial counsel provided ineffective assistance
for several reasons related to witness preparations and for
withdrawing requests for jury charges. Harris had not subpoenaed
the missing witnesses and did not know where they were, so the trial
court did not abuse its discretion in denying the continuance. Harris
has failed to show what helpful testimony he would have elicited had
his counsel prepared better, and so he cannot show any prejudice.
Harris has failed to show that his counsel was deficient in
withdrawing requests for jury charges that the trial court
reasonably understood would have required that Harris admit the
shooting. And Harris has failed to show cumulative prejudice. We
affirm.
Tony Morris 2 was shot four times and killed in the early
which transferred the case to this Court. The case was docketed to our April
2022 term and submitted for a decision on the briefs.
2 The biologically male victim identified as a woman and went by “Erica
Morgan” at the time of the crimes. According to representations made by a
prosecutor to the trial court, the victim’s legal name was “Tony Morris,” and
this is the name used in the indictment.
2
morning hours on September 29, 2001. Using phone records, police
identified Harris as someone Morris had spoken to using a phone
chat line service the night Morris was killed. Talking with police
during a search of his property, Harris, trembling and breathing
quickly, denied owning a gun, and uttered, “[I]f I had a gun used to
kill someone, I would have done thrown it in the lake.” There was a
lake across the street from Harris’s home. Police found a half-empty
box of Magtech 9mm ammunition in Harris’s car; Harris claimed
that a friend had left it there. Investigators found Magtech 9mm
shell casings at Morris’s home.
Police later contacted the friend and asked him to call Harris.
During that call, the friend asked Harris whether Harris had given
his gun to anyone, and Harris indicated that he had not. Questioned
again by police, Harris said that he owned a BB gun that he had
given to his half-brother, Antravous Favors. Harris denied ever
having owned or held a 9mm handgun. But when the questioning
officer implied that the police knew more about a firearm than he
had previously told Harris, Harris’s lip began to quiver, his eyes
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watered, and he slumped forward, but did not say anything. Favors
later told police he had seen Harris with a Hi-Point 9mm handgun,
which a ballistics expert testified could have ejected the casings
found in Morris’s home.
Favors told the police and, during trial, testified that Harris
had confessed to the murder. On direct examination, Favors
admitted to a past conviction for armed robbery. Favors said Harris
called and said “[h]e had something to tell me.” The two met, and
Harris admitted that he killed someone (whom he did not name).
Harris said he had met this person on a phone chat line service, and
the person invited Harris over. The person was wearing women’s
lingerie when Harris arrived, but Harris noticed that the person had
male physical characteristics. Harris asked for the person’s phone
number, and the person stepped away to get something to write
with. When the person returned, Harris pulled out a gun and said
“you already know what it is,” by which Harris meant that it was a
robbery. The person began running at Harris and screaming, so
Harris shot the person repeatedly until his gun was empty. Harris
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told Favors that the person had only a pencil in hand, he shot the
person in the chest and stomach, and he threw the gun into a lake
after speaking with the police for the first time. Favors, who was in
jail when Morris was killed but had been released before speaking
to Harris, did not contact the police and initially denied knowing
anything when questioned, testifying that he had wanted to protect
Harris.
Before cross-examining Favors, Harris’s counsel said, “I didn’t
think he was testifying until today.” He had Favors stand to show
the jury that he was wearing a county jail inmate uniform (not, as
he had testified on direct examination, a state prison uniform).
Favors admitted that his convictions included numerous felonies.
Favors testified that he told the police about Harris’s confession only
after the police said Harris had identified Favors as the person who
killed Morris, angering him, but the questioning officer denied
telling Favors this. Favors denied telling Harris’s previous counsel
that Favors had fabricated his story, and denied writing a letter to
his grandmother expressing animus toward Harris.
5
Harris presented alibi evidence from his grandmother and
mother. He also sought a self-defense jury instruction. During the
jury charge conference, the trial court said it would instruct the jury
as to alibi and self-defense. When the trial court indicated that it
also intended to give an instruction on affirmative defenses
generally, Harris objected, noting that the intended instruction
“admits the doing of the act,” whereas in his case the issue of self-
defense was raised by Favors’s testimony, not by any admission on
Harris’s part. The court responded that Harris could not raise self-
defense or justification without an admission, although it did note
Harris’s ability to argue inconsistent defenses. Over Harris’s
objection, the trial court stated that it would charge the jury on both
self-defense and affirmative defenses, denying Harris’s request for
an additional charge on inconsistent defenses. Counsel then said
that he would “involuntarily withdraw” his request for a charge on
self-defense or any other justification charge, because he could not
“permit the jury to hear in any shape, manner or fashion that Mr.
Harris is admitting that he did anything.” When trial resumed the
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following Monday, the trial court denied Harris’s supplemental
request for modified versions of these charges. Harris renewed his
objections after the trial court’s charge, which lacked any instruction
on affirmative defenses, self-defense, or justification.
Immediately after the trial court denied his supplemental
request, Harris’s counsel said that he had been negligent in failing
to watch the videotaped interviews of Favors and Julius Martin (a
co-defendant of Harris and Favors in an unrelated case); he said the
videos would “substantially further any claim of self-defense” and
help him impeach Favors. He moved to reopen the evidence, but
conceded that Martin was unavailable, and that prosecutors had
indicated to him that they would not agree to admission of the
videotapes without the proper foundation being laid and Martin
being available for questioning. The trial court responded that
counsel was “intentionally trying to inject error” and it would
“overrule” his “objections.”
Harris’s closing arguments pointed to alibi evidence and urged
the jury to find Favors’s testimony not credible. Alternatively,
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counsel argued that the jury should find Harris guilty of voluntary
manslaughter if it believed Favors, but did not argue self-defense.
The jury acquitted Harris of felony murder predicated on attempted
armed robbery, but found him guilty of the remaining counts.
1. There was no error in denying Harris’s continuance motion.
Harris first argues that the trial court erred in not granting the
continuance motion that he made on the morning that trial began.
Explaining the basis for the motion, Harris’s trial counsel
represented to the court that he had “been unable to locate a number
of material witnesses” or “secure any current address or contact
information for them.” He wanted “another week or two to try to find
these people,” possibly by “serving a subpoena for the production of
evidence, perhaps on the Georgia Department of Driver Services, to
see if they have addresses for any of these individuals.” The trial
court denied the motion.
“All applications for continuances are addressed to the sound
legal discretion of the court[,]” and we review a trial court’s denial of
a continuance motion for an abuse of discretion. OCGA § 17-8-22;
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see also Geiger v. State, 295 Ga. 648, 651 (3) (763 SE2d 453) (2014).
None of the alleged missing witnesses had been subpoenaed by the
defense and counsel was unable to say where the witnesses were.
And there had already been a long delay due to Harris filing a
speedy trial motion, and then unsuccessfully appealing its denial.
See Harris v. State, 284 Ga. 455 (667 SE2d 361) (2008). Accordingly,
“we see no abuse of discretion in the denial of a continuance.” Cain
v. State, 277 Ga. 309, 311 (3) (588 SE2d 707) (2003), overruled in
part on other grounds by Dickens v. State, 280 Ga. 320, 323 (2) (627
SE2d 587) (2006). See also Dillingham v. State, 275 Ga. 665, 667 (2)
(571 SE2d 777) (2002) (holding no abuse of discretion in denying
continuance where “[t]here was no indication made to the trial court
that the witness could be located if an additional continuance was
granted”).
2. Harris has not shown ineffective assistance of counsel.
(a) Harris failed to show any prejudice as to two
ineffectiveness claims arising from his trial counsel’s
witness preparations.
Harris argues that his trial counsel provided ineffective
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assistance by not viewing the videos of Martin’s and Favors’s police
interviews and by failing to prepare for Favors’s testimony. To
prevail on a claim of ineffective assistance of counsel, a defendant
must prove both that his counsel’s performance was deficient and
that the deficient performance prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
Deficiency means that “no reasonable lawyer would have done” what
trial counsel did, while prejudice means there is a reasonable
likelihood that the outcome of the trial would have been different
but for the deficient performance. Wells v. State, 295 Ga. 161, 164
(2) (a) (758 SE2d 598) (2014). A defendant claiming that his counsel
was underprepared must show that more preparation “might have
produced [something] that would have made a difference in the
outcome of his trial.” Roberts v. State, 305 Ga. 257, 266 (5) (c) (824
SE2d 326) (2019) (citation and punctuation omitted).
Even assuming deficiency, Harris has failed to establish any
prejudice resulting from either of these alleged failures. Regarding
the videos, Harris’s trial counsel testified at the motion for new trial
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hearing that he did not know whether reviewing them would have
affected his trial strategy. Harris has not explained how his trial
counsel’s approach would have been different if counsel had viewed
the interviews, and has not explained how that different approach
was reasonably likely to lead to a difference in the outcome of the
trial. Harris has therefore not shown any prejudice as to his trial
counsel’s failure to watch the videos, and so he cannot establish
ineffective assistance of counsel on this basis.
Turning to Harris’s contention that his trial counsel did not
adequately prepare for Favors’s testimony, Harris has not even
suggested what avenues his trial counsel left unexplored in his
cross-examination, and Favors did not testify at the hearing on
Harris’s motion for new trial. At the motion for new trial hearing,
trial counsel enumerated ways in which he did prepare to examine
Favors. Harris has not shown any prejudice arising from any lack of
preparation on counsel’s part. Harris’s failure to show any prejudice
again dooms his claim of ineffective assistance of counsel. See Porter
v. State, 292 Ga. 292, 295 (3) (c) (736 SE2d 409) (2013) (claim of
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ineffective assistance of counsel based on counsel’s alleged failure to
prepare appellant and his alibi witnesses to testify fails where
appellant “offered no evidence to show a reasonable probability that
more preparation would have changed the outcome at trial”).
(b) Trial counsel did not perform deficiently in
withdrawing jury charge requests.
Harris next challenges his trial counsel’s decision to withdraw
requests for jury charges on self-defense and justification. 3 Trial
counsel did not perform deficiently in this regard. He withdrew the
requests after the trial court held that it would charge the jury on
both self-defense and affirmative defenses. The trial court relied on
pattern jury charges at the time of the trial, which, although we
have since clarified the law,4 stated: “An affirmative defense is a
3 Harris does not challenge the trial court’s ruling as to his requests
regarding jury charges on self-defense, affirmative defenses, or inconsistent
defenses. He challenges only trial counsel’s decision to withdraw the requests
after the trial court’s ruling.
4 Over a decade after Harris’s trial, we made it clear that a criminal
defendant need not admit as true for all purposes anything in order to raise an
affirmative defense:
[I]n order to raise an affirmative defense, a criminal defendant
need not “admit” anything, in the sense of acknowledging that any
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defense that admits the doing of the act charged but seeks to justify,
excuse, or mitigate it.” Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases (2007), § 3.00.00. Harris’s principal defense was
alibi, which would have been completely undermined by admitting
the shooting. Although trial counsel argued in the alternative that
the jury could find him guilty of voluntary manslaughter, at the very
least, we cannot say that no reasonable lawyer would have made the
facts alleged in the indictment or accusation are true. Rather, in
asserting an affirmative defense, a defendant may accept certain
facts as true for the sake of argument, and the defendant may do
so for the limited purpose of raising the specific affirmative
defense at issue. A defendant is entitled to a requested jury
instruction regarding an affirmative defense when at least slight
evidence supports the theory of the charge, whether in the State’s
evidence or evidence presented by the defendant, and regardless of
whether the theory of the affirmative defense conflicts with any
other theory being advanced by the defendant. It follows that a
trial court errs in denying a defendant’s request for a jury
instruction on an affirmative defense solely on the basis that the
defendant did not admit for all purposes the truth of the
allegations in the indictment or accusation regarding the allegedly
unlawful act.
McClure v. State, 306 Ga. 856, 864 (1) (834 SE2d 96) (2019). The current
pattern jury charge simply reads: “The defendant has raised a defense that
even if he committed the act described in the indictment, there are
circumstances that (justify) (excuse) (mitigate) it. Once this defense is raised,
the state must disprove it beyond a reasonable doubt.” Suggested Pattern Jury
Instructions, Vol. II: Criminal Cases (2020), § 3.00.00.
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strategic decision that trial counsel did here in the light of the
circumstances, and so he did not render deficient performance. See
Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004) (holding
no deficient performance where trial counsel’s strategy “was
reasonable under the circumstances”).5
(c) There is no cumulative prejudice from ineffective
assistance of counsel here.
Finally, Harris contends that the cumulative effect of the
ineffective assistance provided by his trial counsel amounted to
prejudice. See Bates v. State, 313 Ga. 57, 69 (3) (867 SE2d 140)
(2022) (“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.” (citation and punctuation
omitted)). But we already concluded that Harris failed to show any
prejudice from the assumed deficiencies in the matters challenged
5 We note that a defendant’s burden of demonstrating prejudice arising
from ineffective assistance of counsel is heavy, whereas a defendant is entitled
to a jury charge regarding a defense as long as “slight evidence” supports it.
See, e.g., McClure, 306 Ga. at 863-864 (1).
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above in Division (2) (a).6 Cumulative prejudice is therefore not a
ground for reversing Harris’s convictions.
Judgment affirmed. All the Justices concur.
6 Harris’s brief also enumerates as error that his trial counsel provided
ineffective assistance in not interviewing Jones and not calling Martin as a
witness. But these enumerations are “not supported by argument or citation of
authority in the brief” and so are abandoned. Supreme Court Rule 22.
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