Gardner v. State

• Decision Date: 07 December 2020
• Docket Number: S20A1183
• Citation: 310 Ga. 515,852 S.E.2d 574
• Court: Georgia Supreme Court
• Parties: GARDNER v. The STATE.

310 Ga. 515

852 S.E.2d 574

GARDNER

v.The STATE.

S20A1183

Supreme Court of Georgia.

Decided: December 7, 2020

Timothy C. Head, Jr., for appellant.

George E. Barnhill, District Attorney, Alexander J. Markowich, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael O. Oldham, Assistant Attorney General, for appellee.

Ellington, Justice.

A Ware County jury found Reggie Gardner guilty of felony murder in connection with the shooting death of Franklin Wright.¹ Gardner appeals from the denial of his motion for a new trial, contending that his trial counsel was ineffective because he failed to request a jury instruction on voluntary manslaughter. As explained more fully below, the trial court did not err in finding that counsel's performance was not constitutionally deficient because counsel chose to present an "all-or-nothing" defense, which was reasonable given that the evidence did not show the irresistible passion resulting from serious provocation required to support a charge on voluntary manslaughter. Therefore, we affirm.

1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial shows the following. Around 2:00 a.m. on June 11, 1995, Gardner was driving in Waycross with his girlfriend, Robyn Grayer. As he approached a stop sign, Gardner almost collided with a bicycle ridden by Wright. Gardner stopped his car, but remained seated inside. Wright followed Gardner's car, flung his bicycle to the ground, and then walked toward Gardner, shouting obscenities. Announcing that he was unarmed, Wright challenged Gardner to a fistfight. He lifted his shirt to show that he had no concealed weapon. According to Grayer, two or three other people also began moving toward the car. Instead of driving away, Gardner fired a handgun at Wright. As Wright turned to flee, Gardner fired again, hitting Wright, who collapsed on the ground. Gardner drove away. One witness called 911, and another hailed the responding officer, who found Wright gasping for air and unable to speak. While driving to Grayer's house, Gardner threw his handgun from the car. After officers arrested Gardner later that morning, Grayer showed the officers where Gardner had disposed of his gun.

Wright died at the hospital. The medical examiner testified that a single bullet entered Wright's right side, traveled upward, pierced his heart, and lodged in the left side of his chest. A GBI firearms expert determined that the bullet that killed Wright was likely fired from Gardner's gun.

On the morning of his arrest, Gardner gave a video-recorded statement. During the 35-minute interview, Gardner first denied that he was involved in the shooting. But he later admitted that he shot Wright, whose hands were raised, only after Wright verbally threatened him and after Wright and others advanced toward him. Gardner did not testify at trial.

Neither Gardner nor any of the eyewitnesses to the shooting gave a statement or testimony demonstrating that Gardner shot Wright as the result of a sudden, violent, and irresistible passion. Grayer testified that Wright was responsible for the near collision and that Gardner apologized to Wright, even though he was not at fault. She testified that Wright was the angry party, not Gardner. Wright threw down his bicycle and approached Gardner's car shouting obscenities and threatening to kill Gardner and his brothers. She said that Gardner fired at Wright only after Wright put them in fear of an assault. She testified that Gardner acted in self-defense, and fired at Wright because it "looked like [Wright] was about to pull something out of his pocket."

In addition to Grayer's testimony, the State offered the testimony of four other eyewitnesses. William Nelson, who was in a nearby car with his brother, Brett Nelson, testified that he saw Wright pedal rapidly toward Gardner's car, throw his bicycle down violently, and walk toward Gardner's car shouting obscenities at Gardner, who did not respond. Then he heard gunshots. Brett testified that he saw Wright throw his bicycle down, shout at and challenge Gardner to a fight, and then Gardner fired two shots from his car while Wright's hands were raised. Zachris Carter, a friend of Wright's, testified that Wright did not chase after Gardner's car. Rather, Gardner simply shot Wright when Wright walked toward Gardner's car. He said that he did not know whether Gardner and Wright had argued. Regina James, who was acquainted with both Gardner and Wright, testified that she saw Wright walk toward Gardner's car. Wright lifted his shirt and said that he had no weapon. She heard Wright challenge Gardner to a fight. Seconds later, she heard gunshots.

Gardner does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Gardner guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).²

2. Gardner contends that his trial counsel was constitutionally ineffective because he failed to request a jury charge on voluntary manslaughter as a lesser offense of murder.³ He argues that the trial court erred in denying his motion for a new trial on this ineffective assistance ground because a reasonable attorney would have concluded from the evidence that a self-defense strategy was unreasonable and, instead, pursued a defense based on serious provocation and requested a charge on voluntary manslaughter.⁴ For the following reasons, we find no merit to this claim of error.

To establish that his trial counsel was constitutionally ineffective, [Gardner] must prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that his lawyer's performance was deficient, [Gardner] must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. This is no easy showing, as the law recognizes a "strong presumption" that counsel performed reasonably, and [Gardner] bears the burden of overcoming this presumption. Id. at 689. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. See Humphrey v. Nance , 293 Ga. 189, 192, 744 S.E.2d 706 (2013). In particular, "decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course." Reed v. State , 294 Ga. 877, 882, 757 S.E.2d 84 (2014).

Davis v. State , 299 Ga. 180, 182-183 (2), 787 S.E.2d 221 (2016).

At the hearing on Gardner's motion for a new trial, trial counsel testified that he was admitted to the Georgia Bar in 1979, had tried several murder cases, and was once certified to try death penalty cases. He testified that, in 1995, it was his practice to obtain discovery, analyze the State's evidence, and discuss the case with his client. He recalled assessing the State's case and testified that he did not see evidence that Gardner acted out of the type of passion sufficient to support a voluntary manslaughter defense. Rather, based on Gardner's statement and Grayer's testimony, counsel believed that Gardner's best defense was self-defense. Counsel further testified that he elected not to request a voluntary manslaughter instruction for two reasons: (1) he did not see evidence to support such a charge; but (2) even if he had, he chose to pursue an "all-or-nothing" approach to his client's defense. Counsel explained that, "if you give a jury an option [to find the defendant guilty of a lesser offense,] they'll take it usually," and he "didn't want that option in this case" because he "thought it was straight out self-defense. [Wright] threw his bicycle down and he was going [after Gardner]." Gardner did not testify at the motion for a new trial hearing, and the record contains no evidence that he disagreed with trial counsel's defense strategy.

"Decisions about which defenses to present and which jury charges to request are classic matters of trial strategy, and pursuit of an all-or-nothing defense is generally a permissible strategy." (Citations omitted.) Velasco v. State , 306 Ga. 888, 893 (3) (b), 834...