Allen v. State
| Decision Date | 23 September 2013 |
| Docket Number | No. S13A0979.,S13A0979. |
| Citation | 748 S.E.2d 881,293 Ga. 626 |
| Parties | ALLEN v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Sheueli Cindy Wang, Georgia Public Defender Standards Council, Atlanta, for appellant.
Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., Department of Law, Paul L. Howard Jr., Dist. Atty., Arthur C. Walton, Asst. Dist. Atty., Fulton County District Attorney's Office, for appellee.
Following the denial of his motion for new trial, Jerome Allen appeals his convictions and sentences for malice murder and possession of a firearm during the commission of a felony in connection with the fatal shooting of Stacy Morman. His sole challenge is that his trial counsel rendered ineffective assistance. Finding the challenge to be without merit, we affirm. 1
The evidence construed in favor of the verdicts showed the following. On February 21, 2005, about a week after being robbed at gunpoint, Allen was driving home from work with two other individuals when he saw Morman walking with a group of teenagers. Allen believed that Morman was the individual who robbed him, and he approached Morman. Allen was carrying a firearm, and after asking the unarmed Morman if he remembered him, Allen drew his handgun and shot Morman multiple times in the back. After Morman fell to the ground, Allen stood over him and fired several more shots into him. Allen then returned to his vehicle, warned Morman's friends not to say anything, and drove away. Morman died at the scene; he had sustained twelve gunshot wounds and his death resulted from wounds to his head and torso. Allen was subsequentlyarrested and questioned by the police.
1. The evidence was sufficient to enable a rational trier of fact to find Allen guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Allen contends that he was denied his Sixth Amendment right to effective legal representation because his trial counsel was ineffective in three respects.2 However, in order to prevail on a claim of ineffective assistance of trial counsel, a criminal defendant must demonstrate, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that his counsel's performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of his trial would have been different. Johnson v. State, 290 Ga. 382, 383(2), 721 S.E.2d 851 (2012). To meet the first prong of Strickland, the defendant must overcome the strong presumption that his counsel's performance fell within a wide range of reasonable professional conduct and that the decisions made by counsel were done so in the exercise of reasonable professional judgment. Norton v. State, 293 Ga. 332, 745 S.E.2d 630 (2013). The reasonableness of such conduct is to be examined from counsel's perspective at the time of trial and under the particular circumstances then existing in the case. Id. The second prong of the Strickland test requires that the defendant show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. In its review, this Court will accept the trial court's factual findings and credibility determinations unless they are clearly erroneous, but will independently apply the legal principles to the facts. Johnson v. State, supra at 383(2), 721 S.E.2d 851;Handley v. State, 289 Ga. 786, 787(2), 716 S.E.2d 176 (2011).
a) Allen first asserts that his trial counsel was ineffective because counsel did not object to the prosecution's alleged improper question regarding a defense character witness's awareness of Allen's previous arrests. On cross-examination, the State asked defense character witness, Rucker, if he was aware of any “previous arrests” of Allen, and whether the “previous arrest [would] change [Rucker's] opinion about [Allen].” Allen argues that the State had no basis to ask this given the fact that his prior criminal history showed only underage possession of alcohol. At the motion-for-new-trial hearing, trial counsel testified that he did not object to the line of questioning because he believed that the defense had “opened the door” to it by presenting character witnesses. And, so it had.
A defendant makes his or her good character an issue when the defendant offers testimony of a witness as to the defendant's general good reputation in the community. Harris v. State, 279 Ga. 522, 526(5), 615 S.E.2d 532 (2005). On direct examination by the defense, Rucker was asked if he had an opinion about Allen's reputation in the community and Rucker testified that Allen “was a very humble dude” whose reputation involved “no form of violence.” It was thus permissible for the State on cross-examination of Allen's character witness to explore specific acts of bad conduct for the purpose of testing the witness's knowledge of Allen's reputation. Jones v. State, 257 Ga. 753, 758(1)(n. 8), 363 S.E.2d 529 (1988). Consequently, an objection by the defense on the basis urged would not have succeeded.
b) Allen further complains that his trial counsel then compounded the alleged erroneous failure to object to the prosecutor's...
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...the “defense of others” defense, causing him to shift his emphasis during closing argument to self-defense. See Allen v. State, 293 Ga. 626, 629(2)(c), 748 S.E.2d 881 (2013). Indeed, our review of the transcript shows that the evidence of defense of others appears to be considerably weaker ......