Render v. the State.

• Decision Date: 10 January 2011
• Docket Number: No. S10A1399.,S10A1399.
• Parties: RENDERv.The STATE.
• Court: Georgia Supreme Court

288 Ga. 420

704 S.E.2d 767

11 FCDR 61

RENDER

v.The STATE.

No. S10A1399.

Supreme Court of Georgia.

Jan. 10, 2011.

Gerard B. Kleinrock, Decatur, for appellant.Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, R. Javoyne Hicks, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Reggie A. Lampkin, Attorney General, for appellee.HINES, Justice.

Following the denial of his motion for new trial, Harold Lee Render appeals his convictions for felony murder, aggravated assault, and possession of a firearm during the commission of a crime in connection with the fatal shooting of Lamarcus Walker and the wounding of Edward Scott. Render's challenge is that his trial counsel provided him with ineffective assistance. For the reasons that follow, we affirm.¹

The evidence construed in favor of the verdicts showed the following. Render had a history of employment in law enforcement, including working as a police officer and as an armed security guard. Render's 26-year-old son was shot and killed in 2006. Within a few months after the shooting, the Render family began to suspect Lamarcus Walker as the perpetrator. Thereafter, Walker and his girlfriend, who was a Fulton County Deputy Sheriff, went to the Render home both to secure an address in order to obtain a protective order and to try to convince Render that Walker was not the man who killed his son. Neither Walker nor his girlfriend was armed. After Walker entered the home and attempted to talk to Render, Render pulled out a handgun and ordered Walker to be seated. Walker kept his hands raised in the air. Walker told Render that he did not injure or murder his son, and Render responded that he did not want to talk to anyone about it, that “all he wanted to do was find and kill whoever murdered his son.” Render told the couple that the police were looking for Walker. Render telephoned a detective involved in the investigation of his son's murder and was told that there was no new information in the case and that Walker was not needed. Render then fired a shot into the air. Render let the couple leave after Walker's girlfriend agreed to take Walker to the jail for any possible questioning or other action.

On April 30, 2007, Render encountered Walker at a convenience store in DeKalb County. Render and Walker exchanged words and Render drew a handgun and shot Walker multiple times. Walker tried to run from Render. Render fired more shots at Walker, and a stray bullet hit Edward Scott in the groin. Walker fell while he was running, and Render stood over him and again fired multiple shots into him. Walker died instantly. He had sustained gunshot wounds to his left upper arm, the right side of his face, and the back of his head. No weapons were found on Walker's body.

1. The evidence was sufficient to enable a rational trier of fact to find Render 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. Render contends that his trial counsel was ineffective in two respects. But, in order to prevail on his claims of ineffectiveness, Render has to demonstrate that trial counsel's performance was deficient and that the deficiency so prejudiced him that a reasonable probability exists that, but for counsel's errors, the outcome of Render's trial would have been different; in doing so he must overcome the strong presumption that his attorney's actions fell within the broad range of professional conduct. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Futch v. State, 286 Ga. 378, 380(2), 687 S.E.2d 805 (2010).

(a) Render contends that his trial counsel “egregiously erred” when counsel “made no attempt to introduce evidence that would have allowed the jury to understand the reasonable nature” of his fear of Walker. He urges that counsel was ineffective because he conceded the inadmissibility of evidence of Walker's prior acts of violence even though such evidence was “clearly admissible” and crucial to his sole defense of justification/self-defense.

Render argues that there are “two prongs” or methods by which a defendant may have admitted into evidence prior acts of the victim against third parties. First, he cites this Court's holding in Chandler v. State, 261 Ga. 402, 405 S.E.2d 669 (1991), that evidence of specific acts of violence by a victim against third persons can be admitted into evidence in the situation in which a defendant claims justification. Id. at 407(3)(b), 405 S.E.2d 669. The defendant has the burden of demonstrating the admissibility of Chandler evidence, and at a minimum must follow the procedural requirements for introducing the evidence, establish by competent evidence the existence of prior violent acts, and make a prima facie showing of justification. Spencer v. State, 287 Ga. 434, 436(2)(a), 696 S.E.2d 617 (2010). In his initial brief, Render states unequivocally that Chandler has no application in his case, conceding that there was no competent evidence of specific violent acts by Walker against other parties for his trial counsel to present; however, he urges that his situation was governed instead by “longstanding, statutorily-based evidentiary law” relating to self-defense, namely permitting evidence of his motivation or state of mind at the time of the shooting, as permitted by OCGA § 24–3–2.²

It is true that the exception under OCGA § 24–3–2 may allow evidence of a death threat against a defendant when the evidence is offered not for the truth of the matter asserted but rather to show the victim's state of mind; however, such evidence is admissible only in the circumstances in which there is a conflict in the evidence as to who instigated the fight, to corroborate evidence of communicated threats, or to establish the attitude of the deceased. Massey v. State, 272 Ga. 50, 51(3), 525 S.E.2d 694 (2000). But, that is not the type of evidence that Render claims should have been placed before the jury. He complains that the jury did not hear that he had heard from Walker's friends that they were scared that Walker would hurt them if they testified against him and that Walker had killed three or four people, i.e., that Render had knowledge of Walker's violence which made his alleged fear reasonable at the time he shot Walker. As noted, when a defendant claims he justifiably used force in self-defense, evidence of the victim's prior acts of violence can be relevant “to support the defendant's claim that the victim assaulted the defendant in accordance with this violent character.” Strozier v. State, 300 Ga.App. 199, 200(2), 685 S.E.2d 743 (2009). But, that is precisely the type of evidence contemplated in and controlled by Chandler. Strozier v. State, at 200(2), 685 S.E.2d 743. What is more, as for the jury being informed of Render's allegedly fearful state of mind with regard to Walker, Render's attorney was able to elicit testimony from Render on the stand about his belief that the victim was dangerous, including that at the time of the shooting, he knew of...