Jackson v. State

• Decision Date: 01 March 2013
• Docket Number: No. A12A2557.,A12A2557.
• Citation: 321 Ga.App. 607,739 S.E.2d 86
• Parties: JACKSON v. The STATE.
• Court: Georgia Court of Appeals

321 Ga.App. 607

739 S.E.2d 86

JACKSON

v.The STATE.

No. A12A2557.

Court of Appeals of Georgia.

March 1, 2013.

Matthew Thomas Dale, for Appellant.

Timothy Grady Vaughn, Gregory Albert Oberry, for Appellee.

BRANCH, Judge.

Chelsea Jackson was tried by a Pulaski County jury and convicted of selling cocaine, in violation of OCGA § 16–13–30. He now appeals from the denial of his motion for a new trial, arguing that his lawyer's failure to object to the introduction of improper character evidence constituted ineffective assistance of counsel. Jackson further asserts that the court below committed plain error when it failed to instruct the jury, sua sponte, to disregard the improper character evidence. We find no error and affirm.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict. Martinez v. State, 306 Ga.App. 512, 514, 702 S.E.2d 747 (2010). So viewed, the record shows that in the fall of 2008, the Oconee Drug Task Force was using Stuart Lawson as a confidential informant to make undercover drug buys in and around Pulaski County, with these buys resulting in arrests and/or search warrants. On the day in question, a narcotics agent working the investigation met with Lawson and wired him with an audio-video recording device, which Lawson wore on his person and which recorded all of Lawson's activities. The agent also searched Lawson and the vehicle that Lawson was using, including both the passenger compartment and the trunk, and provided Lawson with $40 with which to buy drugs. Additionally, the agent followed Lawson in a separate vehicle, although he could not remain close enough to Lawson to see the exchange of drugs that occurred that day.

Lawson testified at trial and explained that on the day in question he made two cocaine purchases from two different people, with the second purchase being made from Jackson. After he made the buy from Jackson, Lawson then returned to a designated location and met again with the narcotics agent, to whom he gave the drugs.¹ Tests performed on the drugs purchased from Jackson were positive for cocaine.

Lawson also authenticated the audio-video recording he made on the day in question, and that recording was played in its entirety for the jury. The recording, which is approximately 30 minutes long, shows Lawson meeting with and receiving money from the narcotics agent and then chronicles his movements as he drives around looking for opportunities to purchase drugs. Lawson's first purchase of cocaine occurred approximately 16 minutes into the recording, and the transaction took less than one minute. He then relayed the address of the home where he made the purchase to law enforcement. Shortly thereafter, Lawson can be heard saying, “I got one. Going to see if I can get me one more.”

Approximately two minutes after he completed his first drug buy, the recording shows Lawson slowing his car and then saying out of his window, “Good to see you, Red.” ² There is an unintelligible response from someone outside of the car, and Lawson then pulls the car over, exits the vehicle, and approaches a house. The recording briefly shows Jackson sitting on the porch of the house and Lawson is heard greeting him as “L'il Red.” The men then have a very brief conversation that cannot be understood on the recording, but something that could be paper money can be heard making a crinkling sound. Lawson then says, “Thank you, L'il Red,” and he proceeds back to his car. As he is driving away, and approximately 30 seconds after leaving Jackson, Lawson reports to the narcotics agent that he has made a purchase of cocaine from “Johnny Mae Little's grandson. They call him Red.” Lawson then says he is returning to the rendezvous location to meet the narcotics agent. Approximately 30 seconds later, and almost a minute after leaving Jackson, Lawson says to himself, “the one that shot Freak Nasty in the stomach.” The recording shows Lawson returning to the rendezvous location and meeting the narcotics agent, and he can be heard saying to the agent, “that's Red's” and “that's the other buy.”

During deliberations, the jury asked to review that portion of the video relating to Jackson. The judge then allowed the jurors to review approximately three minutes of the recording, although it is not clear whether that portion of the video included Lawson's statement “the one that shot Freak Nasty.”

At the hearing on Jackson's motion for a new trial, his trial counsel testified that although he listened to the entire recording prior to trial, he did not hear Lawson's remark about “the one that shot Freak Nasty.” Nor did he hear that remark when he reviewed the recording with Jackson just prior to it being introduced into evidence, and Jackson did not point the remark out to him. The lawyer further stated that he did not hear the remark when the recording was played at trial for the jury and, if he had, he would have objected immediately.

Both Jackson and his grandmother also testified at the motion for new trial hearing, and each testified that they heard Lawson's remark regarding the shooting of Freak Nasty when the recording was played at trial. Jackson explained that he did not point out the statement to his lawyer, because he did not realize it was objectionable.

1. We first address Jackson's claim that his attorney's failure to object to Lawson's remark about “the one that shot Freak Nasty in the stomach” constituted ineffective assistance of counsel. To prevail on this claim, Jackson must prove both that his lawyer's performance was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With respect to the deficiency prong of the Strickland test, Jackson must show that his attorney performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in light of prevailing professional norms. Id. at 687–688(III)(A), 104 S.Ct. 2052.

We assume for purposes of this appeal that the jury had no choice but to view Lawson's statement, “the one that shot Freak Nasty in the stomach,” as referring to Jackson. Based on this assumption, the statement was clearly objectionable as improper character evidence. See Johnson v. State, 275 Ga. 508, 510(3), 570 S.E.2d 292 (2002) (“to protect an accused and to insure him of a fair and impartial trial before an unbiased jury, we have long embraced the fundamental principle that the general character of an accused is inadmissible unless the accused chooses to put his character in issue”) (citation and punctuation omitted). Jackson's trial counsel, therefore, performed deficiently when he failed to object to that portion of the audio-video recording when it was played at trial. See Ward v. State, 304 Ga.App. 517, 527(5)(a), 696 S.E.2d 471 (2010). Accordingly, we now turn to the second prong of Jackson's ineffective assistance claim.

To demonstrate that he suffered prejudice as a result of his attorney's performance, Jackson must prove “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 694(III)(B), 104 S.Ct. 2052. “This burden, though not impossible to carry, is a heavy one.” Arnold v. State, 292 Ga. 268, 270(2), 737 S.E.2d 98 (2013), citing Kimmelman v. Morrison, 477 U.S. 365, 382(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). We find that Jackson has failed to carry this burden.

When determining whether the unchallenged introduction of improper character evidence has prejudiced the defendant, Georgia's appellate courts consider a number of factors. These include whether the reference to the improper character evidence is isolated and brief, whether the jury's exposure was repeated or extensive, and whether the introduction of the objectionable evidence was inadvertent or whether it was deliberately elicited by the State. See Toomer v. State, 292 Ga. 49, 58–59(4), 734 S.E.2d 333 (2012) (no prejudice where the improper character evidence consisted of “passing references in ... police interviews to [defendant's] probation status, his prior arrest for fighting, and his burglary conviction [and these references] were buried in four long interview videotapes that were played during the testimony of three different witnesses”); Armour v. State, 290 Ga. 553, 556(2)(c), 722 S.E.2d 751 (2012) (the “fleeting introduction” of evidence that defendant had been previously arrested on a “gun charge” and for giving false information to a police officer did not create “a reasonable probability that the outcome of the trial would have been different, because the charges were never mentioned again during the trial”). Compare Merritt v. State, 255 Ga. 459, 460(2), 339 S.E.2d 594 (1986) (“We strongly disapprove the gratuitous introduction of irrelevant and prejudicial [character evidence], particularly where, as here, the prejudicial testimony is elicited from a witness by the prosecutor.”)

This Court has found prejudice where the case comes down to a question of whether the jury believes the version of events as told by the defendant or as told by a witness for the State, and the improper character evidence reflects directly on the defendant's credibility. For example, in Emilio v. State, 263 Ga.App. 604, 588 S.E.2d 797 (2003), the State's chief witness had been found in possession of the evidence of drug trafficking but had negotiated a plea based on her assertion that the drugs belonged to the defendant. The defendant's case at trial was based on his assertion that the drugs and cash belonged to the witness. Under these circumstances, we found that the defendant was prejudiced by trial counsel's...