Battles v. Chapman, S98A0734.

• Decision Date: 14 September 1998
• Docket Number: No. S98A0734.,S98A0734.
• Parties: BATTLES v. CHAPMAN.
• Court: Georgia Supreme Court

506 S.E.2d 838

269 Ga. 702

BATTLES v. CHAPMAN.

No. S98A0734.

Supreme Court of Georgia.

September 14, 1998.

Richard L. Dickson, Athens, for Joseph Battles.

W. Dennis Mullis, Cochran, Hon. Thurbert E. Baker, Atty. Gen., Paula K. Smith, Asst. Atty. Gen., Department of Law, Atlanta, for John Chapman.

HUNSTEIN, Justice.

We granted Joseph Battles a certificate of probable cause to appeal the denial of his petition for habeas corpus. Because we agree with Battles that his appellate counsel's performance was deficient and that there is a reasonable probability that counsel's error prejudiced the defense, we reverse the habeas court's ruling.

1. The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) established the standard for ineffective assistance of counsel, and though the opinion is phrased in terms of ineffective assistance of trial counsel, it can be used as a basis for establishing a standard for ineffective assistance of appellate counsel. Accord Griffin v. Aiken, 775 F.2d 1226, 1235(7) (4th Cir.1985); Schwander v. Blackburn, 750 F.2d 494, 502(12) (5th Cir. 1985); Morgan v. Zant, 743 F.2d 775, 780(8) (11th Cir.1984). The Strickland v. Washington standard consists of a two-prong analysis: first, counsel's performance must have been deficient, and second, the deficiency must have prejudiced the defense. Jenkins v. State, 268 Ga. 468(10), 491 S.E.2d 54 (1997). This Court has recognized that a habeas petitioner who meets both prongs of the Strickland test has established the necessary cause and prejudice to overcome the procedural bar of OCGA § 9-14-48(d). Turpin v. Todd, 268 Ga. 820(2), 493 S.E.2d 900 (1997).

(a) Battles contends his appellate counsel's performance was deficient because counsel failed to raise a nonfrivolous trial error for consideration by this Court.

It is the attorney's decision as to what issues should be raised on appeal, and that decision, like other strategic decisions of the attorney, is presumptively correct absent a showing to the contrary by the defendant. Jones v. Barnes, 463 U.S. 745, 751-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Gaither v. Cannida, 258 Ga. 557, 561(3), 372 S.E.2d 429 (1988). "Th[e] process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. [Cit.]" Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), citing Jones v. Barnes, supra, 463 U.S. at 751-752, 103 S.Ct. 3308. Accordingly, it has been recognized that

[i]n attempting to demonstrate that appellate counsel's failure to raise a state claim constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made. [Cit.]

Mayo v. Henderson, 13 F.3d 528, 533 (2nd Cir.1994). Rather, in determining under the first Strickland prong whether an appellate counsel's performance was deficient for failing to raise a claim,

[t]he question is not whether [an appellate] attorney's decision not to raise the issue was correct or wise, but rather whether his decision was an unreasonable one which only an incompetent attorney would adopt.

Parton v. Wyrick, 704 F.2d 415, 417 (8th Cir.1983). Accord Smith v. South Carolina, 882 F.2d 895, 898-899(II) (4th Cir.1989) (it is not necessary to evaluate the merits of the issue defendant claims appellate counsel should have raised; court must "only determine whether [counsel] made a reasonable decision in refusing to raise the claim").

By citing Jones v. Barnes, supra, 463 U.S. at 751-752, 103 S.Ct. 3308 as the authority for its holding in Gaither v. Cannida, supra, 258 Ga. at 561(3), 372 S.E.2d 429, this Court was recognizing that effective appellate representation requires counsel to make the tactical decisions about the relative strengths and weaknesses of arguments. However, the mere fact that a tactical decision was made does not place that decision beyond all criticism. "Were it legitimate to dismiss a claim of ineffective assistance of counsel on appeal solely because we found it improper to review appellate counsel's choice of issues, the right to effective assistance of counsel on appeal would be worthless." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985). We agree that the correct focus is not only on whether the decision was a deliberate, tactical move, but whether the decision was also reasonable on the basis of the facts of the particular case, viewed as of the time of counsel's conduct. Strickland v. Washington, supra, 466 U.S. at 690, 104 S.Ct. 2052; Berry v. State, 267 Ga. 476(4), 480 S.E.2d 32 (1997). The reviewing court may not use hindsight to second-guess appellate counsel's strategy and tactical choices. See generally Johnson v. State, 268 Ga. 416(4), 490 S.E.2d 91 (1997).

For a habeas petitioner to establish constitutionally inadequate performance of counsel based on the failure to assert a nonfrivolous error on appeal, the petitioner must show that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, supra, 13 F.3d at 533. In assessing the petitioner's showing, a reviewing court should consider the trial errors which counsel had available to raise on appeal and determine whether counsel acted reasonably when choosing among those errors.

When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the [reviewing] court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.

Gray v. Greer, supra, 800 F.2d at 646. The Eleventh Circuit Court of Appeals applied this analysis in Matire v. Wainwright, 811 F.2d 1430(III) (11th Cir.1987), holding that appellate counsel's performance was substandard because counsel asserted "only a single, weak issue, notwithstanding the fact that a substantial, meritorious Fifth Amendment issue was obvious upon even a casual reading of the trial transcript." Id. at 1438. See also Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir.1991).

We conclude that the Federal courts' approach to this issue is consistent with Strickland v. Washington and consonant with Georgia law. Accordingly, we hold that when appellate counsel's performance is claimed to be deficient because of a failure to assert an error on appeal, the reviewing court should resolve whether the decision was a reasonable tactical move which any competent attorney in the same situation would have made, by comparing the strength of the errors raised against the significance and obviousness of the alleged error passed over. The presumption of effective assistance of counsel can be overcome only when the ignored issue was so clearly stronger than the errors presented that the tactical decision must be deemed an unreasonable one which only an incompetent attorney would have adopted.¹

(b) We apply these principles to Battles' claim that appellate counsel's performance was deficient. The record reveals that Battles was charged with malice murder and felony murder based on the underlying felony of aggravated assault. He was convicted of felony murder in November 1991. The evidence adduced at his trial established that Battles struck the victim, who was dating Battles' former girlfriend, from behind in the head with a round-pointed instrument that broke through the victim's skull and caused a fatal concussion. In his statement to the police, Battles claimed that the victim had approached Battles and confronted him about an argument between Battles and the former girlfriend. Battles told police that the victim had kicked him in the knee, knocking him to the ground. Battles then followed the victim into another room and, without any further provocation, inflicted the fatal injury. In its instructions to the jury on voluntary manslaughter, the trial court charged the jury that "[i]f you do not believe [Battles] is guilty of either malice murder or felony murder, you should then consider whether or not ... [Battles] is guilty of the lesser included offense of voluntary manslaughter." The trial transcript reflects that Battles' trial counsel reserved his objections to the charge.

Battles did not file a motion for new trial but instead filed an appeal, which was docketed in this Court on February 21, 1992. Battles' trial counsel served as his appellate counsel and filed a brief on behalf of Battles arguing seven enumerations of error. Both the brief and the separately-stated enumerations of error were filed on March 20, 1992. In the second enumeration, counsel urged this Court to adopt a merger rule that would preclude a conviction for felony murder which was based on any aggravated assault by the defendant on the victim² and thus reverse Battles' conviction. Seventeen days before Battles' appeal was docketed and 45 days before Battles' brief and enumerations were filed, this Court rendered its holding in Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), in which we decided not to adopt the merger doctrine in toto but only to follow a modified merger rule. The argument Battles' counsel raised was rejected in a case rendered two days after Edge. Witherspoon v. State, 262 Ga. 2, 412 S.E.2d 829 (1992) (decided February 6, 1992, 15 days before Battles' appeal was docketed and 43 days before his brief and enumerations were filed). Although Battles' counsel expressly cited Edge v. State in his appellate brief when discussing the second enumerated error,...