Merritt v. State

• Decision Date: 16 November 2020
• Docket Number: S20A1190
• Citation: 310 Ga. 433,851 S.E.2d 555
• Parties: MERRITT v. The STATE.
• Court: Georgia Supreme Court

310 Ga. 433

851 S.E.2d 555

MERRITT

v.The STATE.

S20A1190

Supreme Court of Georgia.

Decided: November 16, 2020

John M. Shelnutt, for Appellant.

Julia F. Slater, District Attorney, Wesley A. Lambertus, Frederick Lewis, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for Appellee.

Peterson, Justice.

Jerry Merritt appeals his convictions for malice murder and possession of a firearm during the commission of a felony for the shooting death of Anthony Taylor, following an argument between the two several hours earlier.¹ Merritt argues that his trial counsel was ineffective and that the trial court erred by failing to give jury instructions on voluntary manslaughter and duty to retreat and by allowing the prosecutor to ask leading questions. We conclude that any deficient performance by counsel did not prejudice Merritt's case, that any error by the trial court in allowing leading questions was harmless, and that the trial court did not plainly err in refusing to give the requested instructions. We affirm.

The evidence presented at Merritt's trial showed the following.² Merritt and Taylor both frequently spent time at the Pure Gas Station on Fort Benning Road in Muscogee County. Merritt was frail and skinny, weighing about 110 pounds, while Taylor stood over six feet tall and weighed at least 222 pounds. The two men ostensibly were friends, although Merritt's sister testified that on occasion Taylor would beat Merritt up or steal his money, and another defense witness testified that he witnessed Taylor making violent threats toward Merritt.

In the early morning hours of June 6, 2014, around 1:00 or 1:30, Merritt and Taylor had an argument at the gas station. Merritt entered the store carrying a stick, followed by Taylor, who was carrying a pipe. Taylor struck Merritt in the face with the pipe, bloodying Merritt's face. Merritt ran outside and left in a friend's vehicle. Upon returning home, Merritt showed his sister his injuries, and the two siblings drove around looking for Taylor. The search was unsuccessful, and Merritt's sister dropped him off near the gas station. Before his sister left, Merritt told her that he loved and missed her and would "not be home."

Later that morning at the gas station, Merritt told a friend about the fight with Taylor and that he planned to kill Taylor the next time he saw Taylor. Around 9:00 a.m., Taylor arrived at the gas station. Taylor got out of the car and began walking toward the store where Merritt was standing. Soon after approaching Merritt, Taylor turned away and started running. Merritt chased Taylor around the outside of the store, shooting at him multiple times. Taylor ran across the street, where he collapsed. Merritt proceeded down a side street, but returned shortly thereafter and turned himself in to police. He had a visible laceration above his eye at the time. Taylor died of a single gunshot wound to the back.

Questioned by police, Merritt was read his Miranda³ rights and agreed to be interviewed. Merritt reported being bullied repeatedly by Taylor. He said that, after the incident in which Taylor hit him with a pipe, he made up his mind that he was going to kill Taylor if Taylor returned to the store. Merritt said he retrieved his gun when he returned home that morning. He admitted chasing and shooting Taylor, saying that he fired the gun until he ran out of bullets. Merritt at one point claimed that Taylor had a knife in his hands when he got out of the truck, but later admitted that was not true. Merritt acknowledged that Taylor did not say anything to him when he got out of the truck, explaining that Taylor did not have an opportunity to do so. When told that Taylor was dead, Merritt responded that he was not going to "shed a tear" because "God don't like ugly." Merritt ultimately led police to the gun he used to shoot Taylor; the revolver's cylinder had five spent rounds.

1. Although Merritt does not challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the evidence presented at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).⁴

2. Merritt first argues that trial counsel was ineffective by failing to put forth a clear defense and failing to object properly to the State's impeachment of its own witness. We conclude that Merritt has not shown deficient performance by counsel as to the first issue, and that he has not shown prejudice as to the second.

To prevail on a claim of ineffective assistance of counsel, Merritt must show both that his trial counsel's performance was deficient and that this deficiency prejudiced his defense. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To establish deficient performance, [Merritt] must overcome the strong presumption that his ... counsel's conduct falls within the broad range of reasonable professional conduct and show that his counsel performed in an objectively unreasonable way" in the light of all of the circumstances. Smith v. State , 296 Ga. 731, 733 (2), 770 S.E.2d 610 (2015) (citation and punctuation omitted). To establish prejudice, Merritt "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. Merritt must prove both prongs of the Strickland test, and if he fails to prove one prong, "it is not incumbent upon this Court to examine the other prong." Smith , 296 Ga. at 733 (2), 770 S.E.2d 610 (citation and punctuation omitted). "In reviewing a ruling on a claim of ineffective assistance of counsel, we defer to the trial court's findings of fact unless they are clearly erroneous, but we apply the law to the facts de novo." State v. Spratlin , 305 Ga. 585, 591 (2), 826 S.E.2d 36 (2019).

(a) Merritt argues that his trial counsel was ineffective for failing to put forth a clear defense in either opening or closing statements. He points out that, even though the trial court ruled at the beginning of trial that the defense could not introduce expert testimony that Merritt suffered from either battered person syndrome or post-traumatic stress disorder, trial counsel made arguments to the jury seemingly in line with such a defense. In particular, trial counsel emphasized in her opening statement that she expected the evidence to "show that this is a pattern of repeated psychological and physical trauma suffered" by Merritt at the hands of Taylor. In closing, trial counsel argued that Merritt was in shock and, in his mind, Taylor's attack on him was "still happening" when Merritt responded with violence. She argued that Taylor had repeatedly bullied Merritt, who shot Taylor because he was traumatized and "tired" of "repeated attacks." Merritt complains on appeal that counsel did not point to a particular defense, such as justification, in her arguments to the jury, and did not discuss concepts like burden of proof and reasonable doubt.

Defense counsel is permitted wide latitude in making an opening statement and closing arguments and is not ineffective simply because another attorney "might have used different language or placed a different emphasis on the evidence."

Davenport v. State , 283 Ga. 171, 175 (5), 656 S.E.2d 844 (2008). Although Merritt complains on appeal that trial counsel did not explicitly argue self-defense to the jury, counsel did attempt to show — through her opening statement, questioning of witnesses, and closing argument — that Merritt had reason to be afraid for his life whenever he saw Taylor, highlighting the previous difficulties between the two and the disparity between their physical statures.⁵ See State v. Sims , 296 Ga. 465, 470-471 (2) (b), 769 S.E.2d 62 (2015) (approving trial court analysis as to why trial counsel's failure to object to prosecutor's opening comments prejudiced the defendant, who claimed self-defense in part based on significant physical disparity between himself and the victim); Mobley v. State , 269 Ga. 738, 739-740 (1), 505 S.E.2d 722 (1998) (explaining that "[e]vidence of past physical abuse is admissible for the limited purpose of illustrating that [the] defendant had a reasonable belief in the imminence of additional physical abuse at the hands of the victim and that, therefore, [the defendant] was presently justified in acting in self-defense" (citation and punctuation omitted)).

"Furthermore, when trial counsel does not testify at the motion for new trial hearing about the subject, it is extremely difficult to overcome the presumption that his conduct was reasonable." Finnissee v. State , 309 Ga. 557, 560 (2), 847 S.E.2d 184 (2020) (citation and punctuation omitted). In this case, Merritt did not question trial counsel at the hearing on his motion for new trial. Without trial counsel's testimony or some other evidence explaining trial counsel's decision, Merritt cannot overcome the presumption that trial counsel's choice of words in her arguments to the jury — not patently unreasonable on their face — was strategic and reasonable. He has not shown that counsel performed deficiently in that respect.

(b) Merritt also argues that trial counsel rendered ineffective assistance by failing to object to the State's impeachment of its own witness. At trial, eyewitness Anthony Bradley testified that, as he emerged from the gas station on the day of the shooting, he saw one person running and a second one (whom he identified in a photo array as Merritt) chasing the first person around the store with a gun. Bradley heard gunshots behind the store, heard another shot as the two men ran back...