Henry v. State

297 Ga. 74FINAL COPY
S15A0189. HENRY v. THE STATE.
BLACKWELL, Justice.
Brandon Henry was tried by a Lowndes County jury and convicted of
murder and other crimes, all in connection with the fatal shooting of John
Golden. Henry appeals, contending that the evidence is legally insufficient to
sustain his convictions and that he was denied the effective assistance of
counsel. Upon our review of the record and briefs, we see no error, and we
affirm.1
1. Viewed in the light most favorable to the verdict, the evidence shows
that Cassandra Reynolds purchased an AK-47 for Henry’s use and kept it in a
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Golden was killed on August 9, 2010. Henry was indicted on April 1, 2011 and
charged with malice murder, burglary, and unlawful possession of a firearm during the
commission of a felony. His trial commenced on September 24, 2012, and the jury returned
its verdict the next day, finding him guilty on all counts. Henry was sentenced to
imprisonment for life for malice murder, a consecutive term of imprisonment for ten years
for burglary, and a consecutive term of imprisonment for five years for unlawful possession
of a firearm during the commission of a felony. Henry timely filed a motion for new trial on
September 28, 2012, and he amended it on January 17, 2014. The trial court denied his
motion on April 10, 2014, and Henry timely filed a notice of appeal to the Court of Appeals
on April 24, 2014. The case was transferred to this Court on June 4, 2014, where it was
docketed for the January 2015 term and submitted for decision on the briefs.
closet in her home. On the evening of August 9, 2010, Henry attended a party,
where he broke up one of several fights involving Nemiah Robinson. Golden,
who was Robinson’s stepfather, also intervened before returning home.
Meanwhile, Henry went to Reynolds’s house, entered it by kicking in a window,
grabbed Reynolds, pushed her into the closet, and “tore everything down in the
closet” until he found the gun. After Henry left Reynolds’s home, Tressie
Anthony saw him on the street yelling, cursing, saying that he had a loaded AK-
47, and asking “where was the guy who had his shirt off outside talking trash.”
Anthony then saw Henry step onto Golden’s front porch and repeatedly fire the
AK-47, striking Golden 15 times and killing him. Shortly afterwards, Henry told
a lifelong friend that he had shot someone, and he threw unspent bullets and
cartridges (of the same caliber used in the shooting) over a fence behind his
girlfriend’s house.
Henry argues in a cursory manner that the evidence is not sufficient to
support his conviction of malice murder, and he confuses the standard of review,
asserting that the verdict is not consistent with the weight of the evidence.
“When we consider the legal sufficiency of the evidence, we must put aside any
questions about conflicting evidence, the credibility of witnesses, or the weight
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of the evidence, leaving the resolution of such things to the discretion of the trier
of fact.” Walker v. State, 296 Ga. 161, 163 (1) (766 SE2d 28) (2014) (citation
and punctuation omitted). Applying the proper standard of review, we conclude
that the evidence adduced at trial was legally sufficient to authorize a rational
trier of fact to find beyond a reasonable doubt that Henry was guilty of the
crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307, 319 (III)
(B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Henry also contends that his trial counsel was ineffective in several
respects. To prevail on a claim of ineffective assistance, Henry must prove both
that the performance of his lawyer was deficient and that he was prejudiced by
this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III)
(104 SCt 2052, 80 LE2d 674) (1984). To prove that the performance of his
lawyer was deficient, Henry must show that the lawyer performed his duties at
trial in an objectively unreasonable way, considering all the circumstances, and
in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also
Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SCt 2574, 91 LE2d
305) (1986). And to prove that he was prejudiced by the performance of his
lawyer, Henry must show “a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U. S. at 694 (III) (B). See also Williams v. Taylor,
529 U. S. 362, 391 (III) (120 SCt 1495, 146 LE2d 389) (2000). This burden is
a heavy one, see Kimmelman, 477 U. S. at 382 (II) (C), and we conclude that
Henry has failed to carry it.
(a) Henry claims that his lawyer failed to consult with him properly.
Henry testified that his lawyer met with him only twice for a short time and
would not listen to him. “Although this testimony was rebutted by that of
counsel, in any event, there is no magic amount of time which counsel must
spend in actual conference with his client.” Lowe v. State, 295 Ga. 623, 627 (4)
(759 SE2d 841) (2014) (citation and punctuation omitted). See also Glass v.
State, 289 Ga. 542, 548 (6) (a) (712 SE2d 851) (2011). The lawyer testified that
Henry was a “jerk” who would “rant and rave like a crazed lunatic” and that the
lawyer would finally just leave. To the extent that there was a restriction of
communication between Henry and his lawyer, the evidence supports a finding
that it was due to Henry being an uncooperative and belligerent client. See Davis
v. State, 295 Ga. 168, 171 (3) (b), n. 3 (758 SE2d 296) (2014). The lawyer’s
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testimony shows that he provided Henry with a copy of discovery and made
reasonable efforts to discuss with Henry the charges against him, the possibility
of entering a guilty plea, and the advisability of testifying on his own behalf. See
Williams v. State, 281 Ga. 196 (637 SE2d 25) (2006). Having reviewed the
testimony of Henry and his trial lawyer at the hearing on the motion for new
trial, we conclude that Henry failed to show inadequate communication by his
lawyer. See Browder v. State, 294 Ga. 188, 193 (4) (751 SE2d 354) (2013).
Moreover, Henry “does not specifically describe how additional
communications with his lawyer would have changed the outcome of his trial.”
Glass, 289 Ga. at 548 (6) (a) (citations and punctuation omitted). See also Lowe,
295 Ga. at 627 (4).
(b) Henry also asserts that his lawyer failed to investigate the case
properly by interviewing several witnesses. The lawyer did interview Reynolds
and Anthony, but Henry complains that his lawyer failed to investigate a man
who was living with Reynolds, a man who, Henry argues, had access to the AK-
47 and could have been the killer. Reynolds testified, however, that the man
only lived with her off and on and that he did not know about the gun in her
closet. The lawyer’s testimony indicated that the other man was not seen at the
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party and had nothing to do with the case, and Henry neither called the man to
testify on motion for new trial nor otherwise showed prejudice resulting from
the alleged failure to investigate the potential suspect. See Washington v. State,
294 Ga. 560, 565-566 (3) (755 SE2d 160) (2014). Henry also argues that his
lawyer failed to interview Henry’s girlfriend even though he told his lawyer that
she was the primary alibi witness, but the lawyer testified that the girlfriend
refused to respond to the lawyer’s calls and letters. See Davis, 295 Ga. at 171
(3) (c). In any event, the State called Henry’s girlfriend as a witness at trial, and
she gave testimony that was consistent with his alibi defense. Henry has not
identified any other particular witness whom his lawyer unreasonably failed to
interview, and Henry therefore has failed to show either deficient performance
in this regard or any prejudice resulting from the allegedly deficient
investigation. See Shank v. State, 290 Ga. 844, 848 (5) (a) (725 SE2d 246)
(2012). See also Grant v. State, 295 Ga. 126, 132 (5) (c) (757 SE2d 831) (2014).
(c) Henry contends that his lawyer failed to show to the jury that Reynolds
and Anthony were biased by questioning them about their family relationships
with Golden. But “[d]ecisions about what questions to ask on cross-examination
are quintessential trial strategy . . . and will rarely constitute ineffective
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assistance of counsel.” Chance v. State, 291 Ga. 241, 247 (7) (b) (728 SE2d
635) (2012) (citations and punctuation omitted). In particular, “[w]hether to
impeach prosecution witnesses and how to do so are tactical decisions.” Dixon
v. State, 275 Ga. 232, 234 (5) (564 SE2d 198) (2002) (citation omitted). Golden
was Reynolds’s uncle. But Henry’s lawyer testified that he did not believe that
the jury would find that information relevant to Reynolds’s credibility or
indicative of bias, given that she testified to her purchase of the AK-47 for
Henry’s use. Moreover, evidence regarding potential bias or lack of credibility
was presented to the jury when Reynolds admitted that she had given conflicting
statements, had previously dated Henry for two years, and did not want to be in
court. In light of this testimony, it is unlikely that evidence of Reynolds’s family
connection to Golden would have affected the outcome of the trial. As for
Golden’s relationship with Anthony, she testified on direct examination that
Golden was her first cousin’s brother. So if the same evidence had been brought
out on cross-examination, it would only have been cumulative of Anthony’s
testimony on direct. See Hill v. State, 276 Ga. 220, 222 (4) (576 SE2d 886)
(2003).
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(d) Last, Henry claims that his lawyer failed to make necessary objections.
When Henry’s lawyer told the jurors during opening statement that they had
Henry’s life in their hands, the trial court explained at the prosecutor’s request
that the State was not seeking the death penalty, and the court told the jury that
its job was to determine whether the State proved the defendant’s guilt “or
innocence” beyond a reasonable doubt as to each charge. Henry’s lawyer should
have objected, Henry argues, because this statement shifted the burden of proof
such that Henry’s innocence would have to be proven, contrary to the
presumption of innocence. But this infirmity is not apparent upon a close
examination of the trial court’s statement. That statement squarely placed the
entire burden of proof beyond a reasonable doubt on the State. Because the
State’s responsibility was to prove Henry’s guilt, the trial court’s addition of the
phrase “or innocence” was an obvious slip of the tongue. “[A] mere verbal
inaccuracy in a charge, which results from a palpable ‘slip of the tongue,’ and
clearly could not have misled or confused the jury is not reversible error.”
Arthur v. Walker, 285 Ga. 578, 579-580 (679 SE2d 13) (2009) (citation and
punctuation omitted). In this case, neither the isolated charge referring to “guilt
or innocence” nor the charge as a whole shifted the burden of proof on any issue
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to Henry. See Roker v. State, 262 Ga. 220, 222 (4) (416 SE2d 281) (1992). See
also Roberts v. State, 276 Ga. 258, 260 (4) (577 SE2d 580) (2003). “[A]n
examination of the entire charge reveals that the trial court thoroughly charged
the jury on the State’s burden of proof, the defendant’s presumption of
innocence, and the fact that the burden of proof never shifts to the defendant [to
prove his innocence].” Arthur, 285 Ga. at 580. When the instructions are
considered as a whole, there is no reasonable likelihood that the trial court’s slip
of the tongue shifted the burden of proof to Henry. See Davis v. State, 329 Ga.
App. 797, 801-802 (2) (764 SE2d 588) (2014) (where the trial court
inadvertently charged the jury that “the burden shifts to the defendant to prove
innocence”); Rodriguez v. State, 211 Ga. App. 256, 257-258 (3) (439 SE2d 510)
(1993); Bass v. State, 208 Ga. App. 859, 861 (4) (432 SE2d 602) (1993).
Because it cannot be said under the circumstances that the trial court’s slip of the
tongue clearly could have misled the jury, Henry’s lawyer did not render
ineffective assistance by failing to object. See Arthur, 285 Ga. at 580. “Finally,
although [Henry] generally opines that his trial counsel failed to object to
leading questions, he fails to identify any specific instances of these alleged
deficiencies. It is not this Court’s job to cull the record on behalf of the
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[appellant] to find alleged errors.” Maxwell v. State, 290 Ga. 574, 575 (2) (722
SE2d 763) (2012) (citation omitted).
Judgment affirmed. All the Justices concur.
Decided May 11, 2015.
Murder. Lowndes Superior Court. Before Judge Horkan.
Lorie L. Williams-Smith, for appellant.
J. Daivd Miller, District Attorney, Jessica W. Clark, Meredith G. Brasher,
Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellee.
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