BRYSON v. JACKSON , 299 Ga. 751 ( 2016 )

In the Supreme Court of Georgia
Decided: September 12, 2016
S16A1023. BRYSON et al. v. JACKSON.
MELTON, Justice.
Following the grant of Fanoris Jackson’s petition for a writ of habeas
corpus, Homer Bryson, in his capacity as commissioner, appeals, contending
that the habeas court erred by finding that Jackson’s appellate counsel rendered
ineffective assistance by failing to preserve for direct appeal any claim that trial
counsel performed deficiently. For the reasons set forth below, we reverse.
1. The underlying facts of this case were previously set forth in Jackson’s
direct appeal. Jackson v. State, 270 Ga. 436 (510 SE2d 815) (1999).
Around 3:00 a.m. on the date of the killing, Jackson's girlfriend, the
mother of his son, arrived home from a date to the house which she
shared with her parents, her brother, and her son. As she walked up
the driveway, Jackson appeared, grabbed her by her jacket, asked
where she had been, and threatened to kill her. Screaming, she
slipped out of the jacket and ran to the house. As she told her
mother what had happened outside, she saw Jackson's shadow on
the exterior door of her bedroom. She went to the back door, saw
Jackson there, and went to the front room where her father was
sleeping. As she tried to explain to him what was happening,
Jackson kicked in the back door. He forced his girlfriend's mother
and brother to accompany him at gunpoint to the front room. When
her father started to sit up, Jackson told him to stay down, shot him
in the hand when he started to pull the covers up over himself, then
shot him several more times, one of the shots wounding the victim
fatally in the head. Jackson unplugged the telephone in that room,
forced the others to go with him to the room where the child had
been sleeping, had the telephone in that room unplugged, then
required everyone else to sit on the bed while he sat in a chair in
front of the door. From there he conducted a conversation with his
girlfriend about her date and their relationship, then began to
threaten to kill himself. His girlfriend's mother eventually persuaded
Jackson to take the bullets from the gun and let her call the police.
Jackson was arrested when police officers came to the house.
Id. at 436-437.
In this earlier direct appeal, Jackson’s appellate counsel, who had been
appointed after the trial was complete, immediately filed a notice of appeal
rather than a motion for new trial. As a result, Jackson became procedurally
barred from raising any claim that trial counsel performed deficiently, as those
claims were not raised at the earliest practicable moment. See Glover v. State,
266 Ga. 183 (2) (465 SE2d 659) (1996). In line with this precedent, this Court
found any such claims to be procedurally barred when Jackson’s appellate
counsel attempted to raise them for the first time on appeal. As a result, Jackson
contended in his habeas petition that trial counsel rendered ineffective assistance
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by failing to: (1) present evidence of the victim's belligerent nature pursuant to
Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991); (2) object to Jackson's
absence from two discussions (one in chambers and one at the bench) regarding
the use of Chandler evidence; (3) obtain a jury instruction on justification; and
(4) request an instruction on voluntary manslaughter. Jackson further contended
that his appellate counsel had rendered ineffective assistance by failing to
preserve the issue of trial counsel’s deficiencies on appeal. The habeas court
found that Jackson’s appellate counsel performed deficiently by failing to
preserve Jackson’s claims that trial counsel was ineffective and that Jackson
suffered actual prejudice because trial counsel had, in fact, provided ineffective
assistance. We disagree.
With regard to Jackson’s claims that his appellate counsel rendered
ineffective assistance, Jackson is required to
show that his appellate lawyer rendered deficient performance and
that actual prejudice resulted. Strickland v. Washington, [466 U.S.
668, 687 (III), 104 SCt 2052, 80 LE2d 674 (1984)]; Battles v.
Chapman, 269 Ga. 702 (506 SE2d 838) (1998); Smith v. Francis,
253 Ga. 782, 783–784 (1) (325 SE2d 362) (1985). With respect to
the performance prong, counsel on appeal is “strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.”
Strickland v. Washington, supra[, 466 U.S.] at 690. Because
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counsel's performance is considered in light of the circumstances
surrounding the representation, reference to hindsight is
inappropriate in judging counsel's performance. [Id.] at 689–690. .
. . In order to find actual prejudice, a court must conclude that
“there is a reasonable probability (i.e., a probability sufficient to
undermine confidence in the outcome) that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different [cit.].” Smith v. Francis, supra[, 253 Ga.] at 783(1). An
ineffective assistance claim presents a mixed question of fact and
law, and we accept the habeas court's findings of fact unless clearly
erroneous but independently apply those facts to the law. Strickland
v. Washington, supra[, 466 U.S.] at 698; Lajara v. State, 263 Ga.
438, 440 (3) (435 SE2d 600) (1993).
Head v. Ferrell, 274 Ga. 399, 403–404 (V) (554 SE2d 155) (2001). In this
context, then, Jackson must show that, had appellate counsel preserved and
properly raised claims of ineffective assistance of trial counsel, the results of his
direct appeal would have been different. As explained more fully below,
Jackson has failed to make this showing, as the record does not support a
finding that trial counsel provided ineffective assistance.
2. (a) Jackson contends that trial counsel rendered ineffective assistance
by failing to present certain Chandler evidence during his trial. In Chandler,
decided under the former Evidence Code of Georgia,1 this Court created an
1
The Chandler exception is no longer viable under Georgia's new
Evidence Code. See Hendrix v. State, 298 Ga. 60, 62 (2) (a) n. 2 (779 SE2d
322) (2015).
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evidentiary exception to the general rule that evidence of a victim's character is
not admissible at trial. Pursuant to this former exception, evidence of specific
acts of violence by a victim against third persons could be used where a
defendant claims a justification defense, but this could occur only after the
defendant satisfied his burden of showing that the Chandler evidence was
admissible.
To meet that burden, the defendant must, at a minimum, (1) follow
the procedural requirements for introducing the evidence, (2)
establish the existence of prior violent acts by competent evidence,
and (3) make a prima facie showing of justification. Laster v. State,
268 Ga. 172, 174 (486 SE2d 153) (1997) (footnotes omitted). The
trial court's decision to admit or exclude Chandler evidence is
subject to reversal only for abuse of discretion. See Jones v. State,
265 Ga. 138, 141 (454 SE2d 482) (1995).
Spencer v. State, 287 Ga. 434, 436 (2) (a) (696 SE2d 617) (2010).
In this case, however, as found by the trial court, Jackson made no
showing of justification for shooting the victim. The evidence shows only that
Jackson broke into his girlfriend’s home and shot her unarmed father while he
was lying on a mattress on the living room floor. At the habeas hearing, Jackson
maintained that there was slight evidence of justification based on the cross-
examination of his girlfriend during trial and the fact that Jackson first shot the
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victim in the hand. From this latter fact, Jackson argues that the jury could have
inferred that Jackson believed the victim was reaching for a gun. This contention
by Jackson, and the concomitant finding by the habeas court, however, are not
supported by the trial transcript. The transcript shows that Jackson’s trial
counsel asked Jackson’s girlfriend whether Jackson inquired about the location
of her father’s gun prior to shooting him. Contrary to Jackson’s arguments,
Jackson’s girlfriend did not respond to this question affirmatively. Instead, she
repeatedly responded that she did not remember. In addition, although the
testimony supported a finding that Jackson first shot the victim in the hand, the
only evidence was that the victim was trying to cover his naked body with a
sheet after being confronted. So, there was, in fact, no testimony from Jackson’s
girlfriend that supported Jackson’s contentions of justification, and Jackson,
himself, did not testify. In the absence of any evidence of justification, Jackson
was not entitled to the admission of Chandler evidence, and trial counsel was
not ineffective for failing to file a motion to present this inadmissible evidence.
See, e.g., Lupoe v. State, 284 Ga. 576, 580 (3) (f) (669 SE2d 133) (2008)
(failure to file meritless motion “cannot amount to ineffective assistance”)
(citation omitted). Moreover, the evidence shows that Jackson was the aggressor
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in this situation, forcefully breaking into his girlfriend’s house and confronting
her family. As the initial aggressor, Jackson was not entitled to the defense of
justification. See OCGA § 16–3–21 (b) (3).
(b) Jackson further contends that trial counsel rendered ineffective
assistance by failing to object to Jackson's absence from two discussions (one
in chambers and one at the bench) regarding the use of Chandler evidence.
Specifically, Jackson contends that he could have informed trial counsel what
his Chandler witnesses would have said, and he could have reminded trial
counsel that some of the potential Chandler witnesses were in the courtroom. As
already discussed, however, Jackson was not entitled to present Chandler
evidence at trial. As such, he has shown no prejudice with regard to this
contention. Head, supra.
(c) Jackson maintains that trial counsel rendered ineffective assistance by
failing to insist on a jury instruction regarding justification. A review of the trial
transcript shows that, although trial counsel requested such an instruction, the
trial court found that there was no evidence of justification and denied the
request. As set forth above, the trial court’s ruling was proper, and, in any event,
trial counsel did, in fact, request an instruction. There was neither deficient
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representation nor prejudice.
(d) Finally, Jackson contends that trial counsel rendered ineffective
assistance by failing to request an instruction on voluntary manslaughter as a
lesser included offense of murder. “[A] written request to charge a lesser
included offense must always be given if there is any evidence that the
defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga.
563, 564 (397 SE2d 550) (1990). However, there was no evidence in this case
that would have required or supported a charge of voluntary manslaughter.
Although Jackson’s girlfriend testified that she had been on a date before being
attacked by Jackson, she further testified that she never informed Jackson of that
fact at any time prior to the attack. See Tepanca v. State, 297 Ga. 47 (4) (771
SE2d 879) (2015).
Accordingly, because the evidence of record did not support a jury charge
on voluntary manslaughter, trial counsel was not ineffective for failing to
request such an unwarranted instruction. See, e.g., Durden v. State, 293 Ga. 89,
97 (6 ) (a) ( 744 SE2d 9) (2013), overruled on other grounds by Jeffrey v. State,
296 Ga. 713 (770 SE2d 585) (2015).
3. Because trial counsel did not render ineffective assistance in any of the
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ways claimed by Jackson, Jackson cannot show that he suffered actual prejudice
resulting from his appellant counsel’s failure to preserve the issue of trial
counsel’s performance on direct appeal.
Judgment reversed. All the Justice concur.
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