Harrison v. State

• Decision Date: 08 September 2020
• Docket Number: S20A0856
• Citation: 309 Ga. 747,848 S.E.2d 84
• Parties: HARRISON v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 747

848 S.E.2d 84

HARRISON

v.The STATE.

S20A0856

Supreme Court of Georgia.

Decided: September 8, 2020

David Joseph Walker, Public Defender's Office, PO Box 747, Gray, Georgia 31032, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew David O'Brien, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, George Elemuel Barnhill, District Attorney, Alexander John Markowich, A.D.A., Waycross Judicial Circuit District Attorney's Office, 306 Albany Avenue, Waycross, Georgia 31501, Attorneys for the Appellee.

Boggs, Justice.

In 2009, Appellant Richard James "Paul" Harrison was tried on charges of murder and felony murder in connection with the shooting death of Dewey Lamar Johnson, but the trial ended in a mistrial when the jury was unable to reach a verdict. Appellant was retried in 2011 before another jury and found guilty of murder and felony murder. He was sentenced to life in prison, his amended motion for new trial was denied, and he appeals, asserting five enumerations of error: four claims of ineffective assistance of counsel and a merger error in sentencing. For the reasons stated below, we affirm the judgment of conviction and sentence on the malice murder count. The felony murder conviction and sentence the trial court erroneously imposed and then purported to "merge" with the malice murder conviction stand vacated as a matter of law.¹

1. Construed in the light most favorable to the jury's verdicts, the evidence showed that on Friday, September 7, 2007, Appellant was living in Alma with his cousin Kenneth "Kenny" Harrison, Kenny's wife Terretha Johnson, and Kenny and Terretha's children. Kenny was known in the community as a drug dealer. In addition to selling drugs, Kenny also bought or traded drugs for stolen copper

wire, burned off the insulation, and sold it. On the evening of September 7, as Appellant and Kenny were driving in Kenny's SUV around the Alma area with a load of wire, they encountered the victim, whom Kenny knew from prior drug sales. Kenny asked the victim if he wanted to make some money helping burn the wire, and the victim got into the vehicle with Kenny and Appellant.

The three men snorted some cocaine, drove out into the country, entered some nearby woods, and began unloading spools of wire. Appellant and the victim got into an argument, which escalated into "tussling," and Appellant put the victim in a choke hold until he fell to the ground, unconscious. Appellant then walked back to Kenny's vehicle, took Kenny's pistol from under the front seat, walked over to the victim who was lying motionless on the ground, and shot him twice in the back of the head.

Kenny asked Appellant, "What the hell is you doing?" and Appellant responded, "He shouldn't have tried me." Kenny then told Appellant to help him reload the spools of wire back into the vehicle and take them to another location in the woods. Kenny told Appellant to get rid of the gun – which was never found – and they went to a local club with a friend, Thomas Lee. At some point Kenny left the club, went to the home of an acquaintance, and then returned home about 4:00 or 5:00 a.m. and went to bed.

A few hours after arriving back home, Kenny took Terretha and the children fishing. They went to "two or three ponds" to fish, including a spot near the woods where Kenny had seen Appellant shoot the victim the night before. Terretha testified that she and Kenny saw the body lying there, so Terretha told Kenny to go check if the man was dead and to call police. Kenny called the police around 1:00 p.m. on Saturday, gave his name to the dispatcher, and described where the body was located. The police could not find the victim, but a few hours later a passerby discovered the body and called police. Terretha testified at trial that Appellant acknowledged to her that he had shot the man that Terretha and Kenny found.

Appellant told investigators that he had not seen the victim in over a month. He stated that he was at his cousin Kenny's house with Kenny, Terretha, and the children all day on the day of the shooting and never left the house that night. Appellant added that he did not wake up on Saturday morning until after Kenny had gone fishing with his family. He insisted that he had no involvement in the death of the victim.

At trial, Appellant testified in his own defense and repeated that he knew nothing about the shooting. Instead of insisting that he never left Kenny's house, however, Appellant testified that at 8:00 p.m. on Friday night he went with Kenny and Lee and "some females" to a nightclub, where he stayed until 12:00 a.m., when they went to Gwen's house. Appellant, Lee, and the women stayed the night at Gwen's house, and the women dropped Appellant off at Kenny's house the next morning. Appellant testified that "Kenny's wife let me in" and that he went "straight to bed" and woke up around 10:00 or 11:00 a.m. when the others came back from fishing and told him what they had found. Appellant testified that he did not know Kenny owned a gun and that he had nothing to do with the killing of the victim.

Appellant has not challenged the sufficiency of the evidence to support his conviction. However, as is this Court's practice in murder cases, we have reviewed the record to determine the legal sufficiency of the evidence.² We conclude that the evidence presented at trial and summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of the crimes charged. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.E.2d 560 (1979).

2. In four enumerations of error, Appellant contends that he was denied the effective assistance of counsel at trial. To prevail on his claims of ineffective assistance, Appellant must prove both that the performance of his lawyer was professionally deficient and that he was prejudiced by this deficient performance. See Strickland v. Washington , 466 U.S. 668, 687 (III), 104 S.Ct. 2052, 80 L.E.2d 674 (1984). If an appellant fails to show either deficiency or prejudice, this Court need not examine the other prong of the Strickland test. See Palmer v. State , 303 Ga. 810, 816 (IV), 814 S.E.2d 718 (2018). To prove deficient performance, Appellant must show that his attorney "performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." (Citation omitted.) Romer v. State , 293 Ga. 339, 344 (3), 745 S.E.2d 637 (2013). This requires a defendant to "overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional conduct." (Citation and punctuation omitted.) Marshall v. State , 297 Ga. 445, 448 (2), 774 S.E.2d 675 (2015). This burden, although not impossible to carry, is a heavy one. Jones v. State , 292 Ga. 593, 599 (7), 740 S.E.2d 147 (2013). We conclude that Appellant has failed to show constitutional deficiency on the part of his trial counsel.

(a) In two enumerations of error, Appellant contends that trial counsel was ineffective in failing to object on the grounds of inadmissible hearsay and improper bolstering when the prosecutor twice asked Terretha whether Kenny told her he was at the scene and saw Appellant shoot the victim. Appellant also contends that trial counsel likewise was ineffective in failing to raise the same objections when a GBI agent testified that Terretha stated during an interview that Kenny told her that he saw Appellant shoot the victim.

With respect to Terretha's testimony, at the hearing on Appellant's motion for new trial, trial counsel acknowledged that the testimony was hearsay and bolstering, but explained:

You know, our whole defense was basically that this woman was a less-than-honest person, that she was a liar. And it – by that time, it would probably have already been put into evidence that she had taken and failed a lie detector test.^{[3 ]} She had changed her testimony after that .... [W]hen she changed her testimony ... it was not put to a lie detector test. Then, the things she said, my whole – our whole defense was, it doesn't matter what she says; it's not believable.... [O]ur whole position was, you ought not to listen to anything this woman says regardless.

Trial counsel was asked whether he did not object as a matter of "trial strategy," and he responded, "Yes, I would say so."

Similarly, with respect to the GBI agent's testimony, trial counsel was asked if there "were hearsay concerns" and responded, "Well, yes and no. I kind of get back to the same thing. Like I say, our whole defense was that her testimony was – was immaterial." Appellate counsel then asked trial counsel if the agent's testimony "suggests a problem with an improper bolstering of Kenny's testimony?" Trial counsel responded:

Well, in one sense; but in another sense, our defense, as I recall, is it – seems like my name for Kenny was "Kenny, the Killer." Our defense was that Kenny killed him – killed [the victim] – and that she was a part of the coverup helping Kenny lay the blame on [Appellant]. And so – so to some extent, we felt like when she's saying these things, she is bolstering our position because she is helping Kenny hide the truth.

When asked, "So, in other words, were you following the trial strategy, you believe[?]" counsel responded, "Well, yes.... [L]ike I say, I felt like this played into what we were trying to sell to the jury." He added that he preferred to use cross-examination to highlight Terretha's inconsistent statements: "I wanted as many different stories from her as possible."⁴

Finally, trial counsel testified that he was also Appellant's trial counsel in his 2009 trial, which ended in a hung jury and a mistrial, and that he had used the same defense strategy in that trial.

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