Rhoden v. State

• Decision Date: 16 April 2018
• Docket Number: S18A0116
• Citation: 813 S.E.2d 375
• Parties: RHODEN v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 482

813 S.E.2d 375

RHODEN

v.The STATE.

S18A0116

Supreme Court of Georgia.

Decided: April 16, 2018

Ivars Lacis, Lacis Law, LLC, Peachtree City, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Matthew David O'Brien, Assistant Attorney General, Department of Law, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Arthur C. Walton, A.D.A., Fulton County District Attorney's Office, Atlanta, Attorneys for the Appellee.

Hines, Chief Justice.

Following the denial of his motion for new trial, as amended, Tefflon Derron Rhoden appeals his convictions for malice murder, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon in connection with the fatal shooting of Emmanuel Opoku–Afari. Rhoden’s sole challenge is that trial counsel was ineffective in two respects: in failing to move for a mistrial based on an alleged admission by the prosecutor of racial and gender discrimination during jury selection, and in not moving for a severance of Rhoden’s trial from that of his co-defendant, Tariq Smith. Finding the challenge to be unavailing, we affirm.¹

1. At Rhoden’s and Smith’s trial, Smith was convicted of felony murder and other crimes, and we affirmed in part, vacated in part, and remanded the case for resentencing. Smith v. State , 298 Ga. 357, 782 S.E.2d 26 (2016). In that appeal, we summarized the evidence presented at the joint trial as follows:

Viewed in the light most favorable to the verdict[s], the evidence shows that, on October 12, 2010, Smith sold a television to Opoku–Afari. During the transaction, Smith noticed that Opoku–Afari seemed to have a lot of money, and he devised a plan to rob him. Later that day, Smith discussed his plan with Anthony Norris and ... Rhoden, who agreed to assist Smith with the robbery. Traveling together in Norris’s truck, the three men located Opoku–Afari, and they followed him to his apartment in south Fulton County. But when the three men approached Opoku–Afari with guns, Rhoden apparently became afraid that the victim might "try to do something," and he shot the victim in the head before the robbery could take place. The men fled the scene....

Id. at 358 (1), 782 S.E.2d 26. Rhoden does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court’s practice in murder cases, we have reviewed the record and conclude that, construed to support the verdicts, the evidence presented at trial was sufficient to authorize a rational trier of fact to find Rhoden guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. 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), Rhoden "must show that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense." Daniels v. State , 302 Ga. 90, 93 (2), 805 S.E.2d 80 (2017). "While the test imposed by Strickland is not impossible to meet, the burden is a heavy one." Faust v. State , 302 Ga. 211, 217 (4), 805 S.E.2d 826 (2017) (citation and quotation marks omitted). For Rhoden to prove deficient performance, he must show that "his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional performance." Capps v. State , 300 Ga. 6, 8 (2), 792 S.E.2d 665 (2016) (citation omitted). Even though Rhoden’s trial counsel died prior to the hearing on the motion for new trial, Rhoden still must overcome this presumption and is not relieved of his heavy burden of proving ineffective assistance. See Jones v. State , 296 Ga. 561, 564 (2), 769 S.E.2d 307 (2015) ; Hicks v. State , 295 Ga. 268, 276 (3) (b), n. 7, 759 S.E.2d 509 (2014). The reasonableness of counsel’s conduct must be evaluated "from counsel’s perspective at the time of trial and under the particular circumstances of the case, and decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course." Daniels , 302 Ga. at 94 (2), 805 S.E.2d 80 (citations omitted). To prove prejudice to his defense, Rhoden "must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different." Id. at 94 (2), 805 S.E.2d 80 (citation omitted). "If the defendant fails to satisfy either the ‘deficient performance’ or the ‘prejudice’ prong of the Strickland test, this Court is not required to examine the other." Capps , 300 Ga. at 8 (2), 792 S.E.2d 665 (citation omitted).

(a) In Smith’s appeal, we rejected his claim that the trial court erred when, after the evidence was closed, it removed one of the jurors due to his violation of the court’s instruction not to do any independent investigation and due to the court’s concerns about the juror’s impartiality given a business relationship with Smith’s attorney. See Smith , 298 Ga. at 359–360 (3), 782 S.E.2d 26 (holding that both of these reasons were sound and that the trial court did not abuse its discretion). Before the juror at issue was individually questioned, the trial court recognized that he was "the only black man on our jury." After the juror was questioned, the trial court discussed the matter with the parties, and the prosecutor said the following:

I would also submit for the record that the court expressed concern regarding the fact that he is the only African–American male in this case. The defendants are entitled, as the court is aware, to a cross-section of the community. I mean, even if there’s not a black juror on the jury panel that

sits and considers the evidence, under the law that would not give rise to an issue with respect to going forward. So I certainly appreciate the fact that he is a black male on the case. One of the reasons why I selected him initially. I didn’t—you know, when he indicated that he could be fair, I accepted that as true. And you know, I want black males on the jury. But at the end of the day, if he was struck from this jury as a result of the violation of the court’s orders, it would not be a violation of the defendant’s constitutional rights to a fair and impartial trial.

(Emphasis supplied.) Rhoden asserts that his trial counsel should have moved for a mistrial because the language emphasized above amounts to an admission by the prosecutor that he had discriminated based on race and gender during jury selection in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama , 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

To succeed on this claim, Rhoden was required to show both "that trial counsel should have raised a Batson challenge [and] that the challenge would have been successful." Downey v. State , 298 Ga. 568, 573 (4) (a), 783 S.E.2d 622 (2016). Under Batson and J.E.B. , "it is unconstitutional for a prosecutor or defense counsel to exercise a peremptory challenge to a prospective juror because of the juror’s race or gender." Robinson v. State , 278 Ga. 134, 135 (1), 598 S.E.2d 466 (2004). In this case, however, Rhoden does not claim that the prosecutor exercised any peremptory challenge in a discriminatory manner. Instead, Rhoden argues that counsel’s discrimination consisted in his acceptance of a juror and purposely not striking that juror.

Rhoden cannot establish deficient performance by trial counsel for failing to make a motion for mistrial premised on Batson and J.E.B. when he has failed to present, and neither the State nor this Court has been able to find, any authority that extends Batson and its progeny to a prosecutor’s decision not to strike a prospective juror who is then seated on the jury. See Propst v. State , 299 Ga. 557, 565 (3) (a), 788 S.E.2d 484 (2016) (holding that because the defendant "fail[ed] to present any compelling authority questioning the constitutionality of [a statute], he cannot establish deficient performance by trial counsel for failing to challenge the same"). There is precedent that addresses a variety of Batson issues, such as the remedy for a trial court’s mistaken application of Batson to deny a peremptory challenge. See Rivera v. Illinois , 556 U.S. 148, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) ; United States v. Williams , 731 F.3d 1222, 1234–1236 (11th Cir. 2013). Other precedent addresses whether it is a violation of Batson for a prosecutor to strike one prospective juror in an effort either to achieve race and gender balance on the jury or to secure the service of another prospective juror of a particular race and gender. See Rice v. Collins , 546 U. S. 333, 336, 340–341, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) ; Ray–Simmons v. State , 446 Md. 429, 132 A.3d 275, 284–285 (2016). But we have not located or been informed of any precedent or rationale that extends Batson or J.E.B. or their remedies to a prosecutor’s mere non -exercise of a peremptory strike. And "there is no requirement for an attorney to prognosticate future law in order to render effective representation." Amos v. State , 298 Ga. 804, 809 (3), 783 S.E.2d 900 (2016) (citation and quotation marks omitted). Counsel is not obligated "to argue beyond existing precedent." Lyman v. State , 301 Ga. 312, 321 (3) (a), 800 S.E.2d 333 (2017) (citation omitted).

In light of the absence of supporting precedent, Rhoden’s trial counsel might well have concluded that there was not a good-faith basis for a Batson motion. Moreover, when removal of the juror...