Bulloch v. State

• Decision Date: 17 June 2013
• Docket Number: No. S13A0129.,S13A0129.
• Citation: Bulloch v. State, 293 Ga 179, 744 SE2d 763 (Ga. 2013)
• Parties: BULLOCH v. The STATE.
• Court: Georgia Supreme Court

293 Ga. 179

744 S.E.2d 763

BULLOCH

v.The STATE.

No. S13A0129.

Supreme Court of Georgia.

June 17, 2013.

Howard Jarrett Weintraub, Benjamin Black Alper, for appellant.

Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Peter J. Skandalakis, Dist. Atty., Raymond C. Mayer, Asst. Dist. Atty., Paula K. Smith, Sr. Asst. Atty. Gen., Jason C. Fisher, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

Charles Aldon Bulloch filed this appeal from his conviction for the murder of Paul McKeen, Jr.¹ Bulloch asserts reversible error with respect to the admission of certain hearsay testimony at trial and with respect to the instruction to the jury regarding venue.He also asserts the trial court erred in denying his motion for new trial on the ground of ineffective assistance of counsel.

This Court has previously reviewed and summarized the evidence presented at trial in the appeal filed by Bulloch's co-defendantJohnny Vernon Phillips.SeePhillips v. State,280 Ga. 728, 632 S.E.2d 131(2006).Viewed in the light most favorable to the verdict, the evidence shows Bulloch was an admitted drug dealer.McKeen owed Bulloch money for a cocaine purchase.A few days prior to McKeen's death, Bulloch got into a fist fight with McKeen and threatened to beat McKeen to death if he did not pay the money.On the evening of February 27, 1990, McKeen was with his wife in a bar called “The Pub.”Phillips and Bulloch were also there with co-defendantsGuy Walter Hardaway and James Randall Reagan.²McKeen and Bulloch played a game of pool, with the stakes being “double or nothing” on a debt, and Bulloch won the game.McKeen's wife left him in the company of Reagan and another man who was not charged with this crime.Later in the evening, Phillips and Bulloch took McKeen in a black Mustang convertible to a pull-off on the road on Pine Mountain in Harris County.Michael Railey followed them there in order to purchase drugs from Bulloch.When Railey approached the car that Bulloch was driving, McKeen asked him for a ride back to The Pub. Phillips, seated in the back seat with McKeen, refused to let him go and told Railey that McKeen was either going to pay the money he owed or get a beating.

The next morning, Bulloch went to the home of Robert Pearson, who regularly monitored police scanners.Bulloch asked Pearson if he had heard anything about “anything on top of the mountain.”Bulloch also told Pearson he would be leaving town for a bit because he, Phillips, Hardaway, and Reagan had severely beaten “that McKeen boy” because of a debt.Bulloch also said McKeen “wouldn't ever owe me no more money.”Pearson also testified Bulloch told him that “when [Phillips] got started that [Bulloch] couldn't stop him; that [Phillips] ended up hitting [McKeen] with a tire tool.”

That same morning, McKeen was found unconscious and barely alive beside a remote road in Meriwether County.He died in a hospital several days later.Doctors determined the cause of death to be blunt-force trauma to the head that had caused severe brain damage.Sixteen days prior to the McKeen beating, Bulloch and Reagan had beaten another man with a pool stick and driven away from the scene in a black Mustang convertible.

1.The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted.SeeJackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Bulloch asserts he was denied effective assistance of trial counsel on several grounds: because trial counsel did not investigate the prosecution's case; did not investigate and interview any defense witnesses except for Bulloch's sister; did not present probative evidence of his alibi; did not offer critical evidence in support of the defense that Bulloch did not participate in McKeen's beating; did not present probative evidence that another named individual was the killer; did not effectively impeach any of the witnesses; was unsuccessful in his effort to exclude the admission of highly prejudicial hearsay testimony; failed to object to the jury instruction on venue; and made several other unspecified trial errors.After conducting an evidentiary hearing on Bulloch's motion for new trial on the ground of ineffective assistance of counsel and other grounds, the motion was denied in a comprehensive and detailed order finding that, even if in hindsight trial counsel may have made some mistakes, trial counsel's performance was “more than adequate” and concluding that his representation cannot be considered ineffective under the standard set forth in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).This Court has reviewed the evidence presented in support of Bulloch's claim of ineffective assistance and the order denying his motion for new trial.Finding no error, we affirm the denial of the motion for new trial.

To prevail on a claim of ineffective assistance of counsel,

appellant must show that [his] attorney'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.In applying this test, we accept the trial court's findings of fact and credibility determinations unless they are clearly erroneous, but we independently apply the proper legal principles to the facts.

Waits v. State,282 Ga. 1, 5(4), 644 S.E.2d 127(2007)(citation omitted).Trial counsel's testimony established he was, at the time of the trial, an experienced criminal defense attorney with previous experience in murder trials.In preparation for trial, he interviewed only Bulloch and his sister.Trial counsel was aware, however, that attorneys for co-defendants had interviewed a number of other witnesses and he did not deem it necessary to duplicate their efforts.He also reviewed discovery reports on what the State's witnesses had stated to investigators.Trial counsel spent time preparing for cross-examination of witnesses, preparing jury charges, and other pre-trial tasks.Trial counsel acknowledged he did not interview Bulloch's then-girlfriend, who was the owner of the black Mustang convertible in which a witness testified Bulloch and the victim rode to Pine Mountain on the night of the murder, and he did not learn that the girlfriend was allegedly incarcerated and her car allegedly impounded as of the date of the murder.He acknowledged that had he known that fact, he would have used that information as part of his trial strategy.Nevertheless, the evidence established that trial counsel discussed the car with Bulloch and yet was not aware before trial that the car was allegedly impounded.In the Strickland opinion, the Supreme Court of the United States recognized that reasonable professional judgments may support limitations on trial counsel's investigations.466 U.S. at 691, 104 S.Ct. 2052.We find no error in the court's determination that trial counsel's trial preparation was not deficient.

Trial counsel acknowledged that he reviewed the State's interview of Debra Phillips, that he did not recall that the report showed she would have served as an alibi witness, that he did not recall why he did not call her as a witness, and that it was a mistake not to consider calling her as an alibi witness.Nevertheless, trial counsel did present alibi evidence at trial when Bulloch elected to testify.We find no error in the trial court's conclusion that, even if errors were made, trial counsel's performance was more than adequate.Even if mistakes were made, we conclude they were not “so serious as to deprive the defendant of a fair trial, a trial whose result[s are] reliable.”Id. at 687, 104 S.Ct. 2052.

With respect to Bulloch's assertion that trial counsel was ineffective as a result of his unsuccessful efforts to exclude hearsay testimony, the trial transcript shows that counsel raised objections to the admissibility of testimony of the victim's wife with respect to an out-of-court statement the victim made to her but raised no objection to the testimony of the victim's brother regarding an out-of-court statement made to him.This testimony is discussed in detail in Division 3, below, in which we conclude it was not error to admit the testimony of the wife over the objections of Bulloch's counsel and that Bulloch waived his right to assert error with respect to the brother's testimony because he failed to object to that testimony.We reject Bulloch's assertion that the victim's out-of-court statement to his brother is a “testimonial statement” as that term is used in Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004).³For the same reasons that we conclude, in Division 3, that the wife's testimony about the victim's out-of-court statements was admissible pursuant to the necessity exception of OCGA § 24–3–1(b),⁴we conclude the brother's testimony was also admissible.“There is no deficient performance when an attorney fails to object to admissible evidence.”Poole v. State,291 Ga. 848, 857(8), 734 S.E.2d 1(2012).Bulloch has not established ineffective assistance of counsel by showing trial counsel could have made other objections and presented additional evidence relating to those out-of-court statements.

Bulloch has not established ineffective assistance of counsel on the ground that trial counsel called Bulloch as the only defense witness.Under the version of OCGA § 17–8–71 in effect at the time of trial, a criminal defendant had the right to make the final closing argument to the jury if the defendant presented no evidence.⁵It was thus a reasonable trial strategy not to present evidence in order to preserve the right to close.In this case, this initial strategy was defeated when one of the co-defendants introduced documentary evidence.Nevertheless, Bulloch has failed to demonstrate that trial counsel failed to perform...