Reid v. State

• Decision Date: 08 February 2010
• Docket Number: No. S09A1684.,S09A1684.
• Parties: REID v. The STATE.
• Court: Georgia Supreme Court

690 S.E.2d 177

286 Ga. 484

REID v. The STATE.

No. S09A1684.

Supreme Court of Georgia.

February 8, 2010.

Brian Steel, The Steel Law Firm, P.C., Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Peggy R. Katz, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Sara K. Sahni, Assistant Attorney General, for appellee.

CARLEY, Presiding Justice.

A jury found Travion Reid guilty of malice murder, two counts of felony murder, aggravated assault, criminal attempt to commit armed robbery and possession of a firearm during the commission of a felony. The trial court entered judgments of conviction and sentenced Reid to life imprisonment for malice murder and to five years imprisonment for the weapons charge, consecutive to the life sentence. The felony murder verdicts were vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372(4), 434 S.E.2d 479 (1993). The trial court merged the aggravated assault and attempted armed robbery verdicts into the malice murder conviction. Reid appeals after the denial of a motion for new trial.^*

1. Construed most strongly in support of the verdicts, the evidence shows that Reid killed Cheyenne Morgan by intentionally shooting him with a rifle during an attempted armed robbery. The evidence was sufficient for a rational trier of fact to find Reid guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Reid contends that the trial court erred in charging the jury that "[w]hen witnesses appear and testify, they are presumed to speak the truth unless impeached in some manner provided by law."

In Noggle v. State, 256 Ga. 383, 386(4), 349 S.E.2d 175 (1986), we recommended that trial courts discontinue giving [such a] presumption-of-truthfulness charge, as it "can be misleading and is of little positive value...." However, we also have repeatedly "held that the use of such a charge is not unconstitutional and does not constitute reversible error. (Cits.)" [Cit.]

Blackmon v. State, 272 Ga. 858, 860(3), 536 S.E.2d 148 (2000).

Moreover, "jury instructions must be read and considered as a whole. [Cit.]" Whitaker v. State, 283 Ga. 521, 525(4), 661 S.E.2d 557 (2008). Here, the trial court fully charged the jury on determining the credibility of witnesses, resolving conflicts in the evidence and the ways in which witnesses may be impeached. "When read in context, the [presumption of truthfulness] charge here was not misleading...." Blackmon v. State, supra. Although it certainly would have been the better practice not to give such a charge, the trial court did not commit reversible error in giving it. See Best v. State, 261 Ga. 30, 31(5), 401 S.E.2d 732 (1991); Davis v. State, 261 Ga. 18, 19(8), 401 S.E.2d 724 (1991); Baxter v. Kemp, 260 Ga. 184, 186(5), 391 S.E.2d 754 (1990); Mincey v. State, 257 Ga. 500, 506(9), 360 S.E.2d 578 (1987).

3. Reid claims that his trial counsel was ineffective. In order to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Reid "`must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. (Cit.)' [Cit.]" Hill v. State, 284 Ga. 521, 522(2), 668 S.E.2d 673 (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.]" King v. State, 282 Ga. 505, 506(2), 651 S.E.2d 711 (2007).

(a) Reid first alleges that his attorney was ineffective in failing to call alibi witnesses. At the motion for new trial hearing, trial counsel testified that she was approached at the start of the trial by one possible alibi witness, who was Reid's co-defendant in an unrelated drug case. After speaking with the witness, counsel advised Reid that the witness should not be called to testify because she was not credible and her testimony would be detrimental to the defense. "[T]he determination of which witnesses to call ... is a strategic and tactical decision within the exclusive province of the attorney after consultation with the client. [Cit.]" Fairclough v. State, 276 Ga. 602, 605(4), 581 S.E.2d 3 (2003). Reid has failed to overcome the strong presumption that his lawyer's tactical decision "falls within the broad range of professional conduct ([cit.])." Myers v. State, 275 Ga. 709, 713(4), 572 S.E.2d 606 (2002). As for Reid's further claim that there were two other potential alibi witnesses, counsel testified that Reid did not give her the names of any such witnesses or tell her anything about an alibi. "It is within the trial court's discretion to resolve conflicting testimony between trial counsel and a defendant at a hearing on motion for new trial. [Cits.]" Adkins v. State, 280 Ga. 761, 762(2)(a), 632 S.E.2d 650 (2006). Given the attorney's testimony, the trial court was authorized to conclude that "trial counsel cannot be deemed ineffective for failing to locate alibi witness[es] whose existence was not brought to counsel's attention." Ruffin v. State, 283 Ga. 87, 91(12)(d), 656 S.E.2d 140 (2008).

(b) Reid further contends that his lawyer was ineffective in failing to request a jury charge on voluntary manslaughter as a lesser included offense. At the motion for new trial hearing, the attorney testified that she did not request such a charge because it would have contradicted the defense theory that although Reid was present at the crime scene, he did not shoot the victim, and instead the victim was shot and killed by Reid's co-indictee. As counsel explained, "voluntary [manslaughter] would [mean] he killed him ... as opposed to he didn't have anything to do with the killing, which was our defense. And I didn't want the jury to ... just convict him on voluntary."

Accordingly, the record clearly shows that [Reid's] lawyer made the tactical decision to defend her client on the basis that he was innocent of any offense involving the death of the [victim], rather than by conceding that he was guilty of some lesser degree of homicide than murder. It is immaterial that another attorney may have made a different strategic decision.... "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." [Cit.] "`Decisions about which jury charges to request are strategic and provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.' (Cits.)" [Cit.]

King v. State, supra at 507(2)(a), 651 S.E.2d 711. Reid has not shown that counsel's tactical decision was patently unreasonable, and therefore it provides no grounds for reversal.

(c) Reid also claims that trial counsel was ineffective in failing to object to the trial court temporarily closing the courtroom for the testimony of two witnesses, because of concerns about the safety of the two witnesses and security in the courtroom. See Young v. State, 269 Ga. 478, 479(2), 499 S.E.2d 60 (1998) (trial court has discretion to use extraordinary security measures to prevent dangerous or disruptive behavior that threatens trial fairness and safety); State v. Drummond, 111 Ohio St.3d 14, 854 N.E.2d 1038, 1054 (2006) ("maintaining courtroom security and protecting witness safety supported the trial court's limited closure of the courtroom"); Rovinsky v. McKaskle, 722 F.2d 197, 200 (5th Cir.1984) (protecting witnesses from intimidation that would traumatize them or render them unable to testify justifies closure). The United States Supreme Court recently reversed a decision from this Court involving closure of a courtroom during voir dire, over the objection of the defendant. Presley v. Georgia, 558 U.S. ___, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). The Supreme Court held that trial courts are required to consider alternatives to closure even when they are not offered by the parties, and that this Court erred in concluding otherwise. Presley v. Georgia, supra. However, this case is distinguishable from Presley in that Reid did not object to the closing of the courtroom and the issue of closure is thus raised in the context of an ineffective assistance of counsel claim. Consequently, even if we assume for the sake of argument that trial counsel could have raised a meritorious objection on the ground that the trial court failed to consider alternatives to closure, Reid still must show that he was prejudiced by counsel's decision not to object to the brief closing of the courtroom. Glover v. State, 292 Ga.App. 22, 26-27(3), 663 S.E.2d 772 (2008); Hunt v. State, 268 Ga.App. 568, 576(6)(a), 602 S.E.2d 312 (2004); Turner v. State, 245 Ga.App. 294, 297-298(4)(e), 536 S.E.2d 814 (2000).

The dissent posits that Reid is not required to show prejudice on his ineffectiveness claim because the courtroom closure was a structural error. The improper closing of a courtroom is a structural error requiring reversal only if the defendant properly objected at trial and raised the issue on direct appeal, as was done in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), cited by the dissent, and as was also done in Presley v. Georgia, supra. However, where, as here, the issue of a courtroom closure is raised in the context of an ineffective assistance of counsel claim, prejudice will not be presumed. Glover v. State, supra; Purvis v. Crosby, 451 F.3d 734, 740-741(III) (11th Cir.2006); State v. Butterfield, 784 P.2d 153, 156-157 (Utah 1989).

It is one thing to recognize that structural errors and defects obviate any requirement that prejudice be shown on direct appeal and rule out an application of the harmless error rule in that context. It is another matter...