Nichols v. State

• Decision Date: 28 September 2009
• Docket Number: No. S09A1181.,S09A1181.
• Citation: 285 Ga. 784,683 S.E.2d 610
• Parties: NICHOLS v. The STATE.
• Court: Georgia Supreme Court

683 S.E.2d 610

285 Ga. 784

NICHOLS v. The STATE.

No. S09A1181.

Supreme Court of Georgia.

September 28, 2009.

Carl P. Greenberg, for appellant.

Gwendolyn Keyes Fleming, Dist. Atty., Leonora Grant, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Jason C. Fisher, Asst. Atty. Gen., for appellee.

CARLEY, Presiding Justice.

On June 6, 2005, James Lynn Nichols, who was a truck driver, shot Rodwell Jones, Jr., several times following an altercation between the two men at a gas station. The victim died from the gunshot wounds he sustained. After a jury trial in March 2006, at which Nichols claimed that he acted in self-defense, he was convicted of malice murder and sentenced to life imprisonment. This Court reversed the conviction due to evidentiary error. Nichols v. State, 282 Ga. 401, 651 S.E.2d 15 (2007). Following retrial in April 2008, a jury found Nichols guilty of malice murder, felony murder, and aggravated assault. Treating the felony murder verdict as surplusage and merging the aggravated assault count into the malice murder, the trial court entered judgment of conviction on the malice murder verdict and again imposed a sentence of life imprisonment. Following an evidentiary hearing, a motion for new trial was denied, and Nichols appeals.^*

1. The evidence at retrial was sufficient for a rational trier of fact to reject Nichols' claim of self-defense and to find him guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Nichols v. State, supra at 402(1), 651 S.E.2d 15.

2. Nichols contends that his counsel at trial was ineffective in two respects. To prevail on a claim of ineffective assistance of trial counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant

"must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct." [Cit.]

Sanders v. State, 283 Ga. 372, 374(2), 659 S.E.2d 376 (2008). "`"On appeal, this Court accepts the trial court's findings of fact, unless they are clearly erroneous. However, the trial court's legal conclusions are reviewed de novo. (Cit.)" (Cit.)' [Cit.]" Timmreck v. State, 285 Ga. 39, 42(3), 673 S.E.2d 198 (2009).

(a) Trial counsel tendered into evidence Nichols' truck driver's logs from the days following the shooting and questioned him concerning his whereabouts during that time. On cross-examination, the State asked Nichols about his driver's logs from the day of the shooting and the day before the shooting. The information in the driver's logs for that earlier time period contradicted prior testimony from Nichols concerning his whereabouts on those days. The prosecutor used this contradiction to impeach Nichols. At the hearing on the motion for new trial, Nichols contended that his trial attorney rendered ineffective assistance when he opened the door to significant impeachment by tendering the later truck driver's logs even though he knew that the State possessed another set of logs. On appeal, however, Nichols abandons this contention, and instead urges that counsel failed to investigate the case adequately, causing him to be ignorant of the other set of logs and to question Nichols in a manner which opened the door to prejudicial cross-examination.

The trial court did not rule on the issue which Nichols raises on appeal. In the absence of any "`ruling by the trial court on this issue, there is nothing for this Court to review. Because this allegation of ineffectiveness raised by [Nichols] on appeal differs from [that] raised before the trial court, this ground is deemed waived.' [Cit.]" Ogden v. State, 266 Ga.App. 399, 401(2)(a), 597 S.E.2d 491 (2004). See also Lynch v. State, 280 Ga. 887, 890(3), 635 S.E.2d 140 (2006) (contention on appeal that trial counsel was ineffective for not investigating the case was waived because it was not raised on motion for new trial); Moore v. State, 283 Ga.App. 533, 536(1), n. 3, 642 S.E.2d 163 (2007) (claim of ineffectiveness for opening door to hearsay waived when only claim on motion for new trial was failure to object to hearsay as violating the right of confrontation).

Moreover, trial counsel did not testify at the hearing on the motion for new trial. The decision concerning what evidence to present or forego in defending a client charged with a crime is a matter of trial strategy. Sanders v. State, supra at 374(2)(a), 659 S.E.2d 376. Without trial counsel's testimony, there is no evidence in the record as to why he tendered the driver's logs or why he elicited the testimony of Nichols which was later impeached. Thus, Nichols failed to make the necessary "`affirmative showing that the purported deficiencies in his trial counsel's representation were indicative of ineffectiveness and were not examples of conscious and deliberate trial strategy[.]'" Sanders v. State, supra. See also Morgan v. State, 275 Ga. 222, 227(10), 564 S.E.2d 192 (2002).

With regard to the claim which was raised on motion for new...