Rozier v. Caldwell

• Decision Date: 31 October 2016
• Docket Number: S16A1247
• Citation: 793 S.E.2d 73,300 Ga. 30
• Parties: ROZIER v. CALDWELL.
• Court: Georgia Supreme Court

300 Ga. 30

793 S.E.2d 73

ROZIER

v.CALDWELL.

S16A1247

Supreme Court of Georgia.

Decided: October 31, 2016

Rodney Samuel Zell, Zell & Zell, P.C., Atlanta, for Appellant

Patricia B. Attaway Burton, Senior A.A.G., Paula Khristian Smith, Senior A.A.G., Samuel S. Olens, A.G., Aimee F. Sobhani, Department of Law, Atlanta,

THOMPSON, Chief Justice.

In 2008, a jury found appellant Christopher Rozier and his co-defendant, Xavier Dyer, guilty of murder and other crimes in connection with the death of Rufus Richardson. They appealed, and we affirmed both of their convictions. See Dyer v. State, 287 Ga. 137, 695 S.E.2d 15 (2010). In 2011, appellant filed a habeas petition, alleging that his appellate counsel had been constitutionally ineffective in failing to contend that his trial counsel had been ineffective in several respects. The habeas court denied relief on the ground that appellate counsel's representation had not been constitutionally deficient. We then granted appellant's application to appeal to consider whether the trial court erred in erred in ruling that appellant did not receive ineffective assistance of appellate counsel. We now affirm.

1. "To prevail on a claim of ineffective assistance of appellate counsel, a habeas petitioner must show that his appellate counsel was deficient in failing to raise an issue on appeal and that, if counsel had raised that issue, there is a reasonable probability that the outcome of the appeal would have been different." Thompson v. Brown, 288 Ga. 855, 855, 708 S.E.2d 270 (2011). "This burden, although not impossible to carry, is a heavy one." Young v. State, 292 Ga. 443, 445, 738 S.E.2d 575 (2013). In examining an ineffectiveness claim, a court need not

address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Moreover, even though the trial court ruled against appellant's ineffectiveness claim based solely on the ground that appellant failed to show that appellate counsel's performance was deficient, this Court may resolve appellant's ineffective assistance claim on the ground that he failed to show prejudice. See Barrett v. State, 292 Ga. 160, 185–186, 733 S.E.2d 304 (2012) (where the trial court resolved the defendant's ineffective assistance claim without addressing prejudice, this Court resolved the issue on the prejudice prong, holding that "[a]fter an independent review of the record, this Court concludes as a matter of law that, even assuming" that trial counsel performed deficiently, the defendant "has failed to show that he was prejudiced"). Accord Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (holding that where a state court found that the defendant's representation was adequate and did not reach the issue of prejudice, the Court could "examine this element of the Strickland claim de novo"). Finally, to determine prejudice involving a claim that appellate counsel was ineffective in failing to raise a claim concerning trial counsel's effectiveness, "this Court must examine the underlying ineffectiveness of trial counsel claim and determine whether that claim would have had a reasonable probability of success." Hall v. Lewis, 286 Ga. 767, 770, 692 S.E.2d 580 (2010).

2. At trial, a fingerprint examiner from the GBI testified that he found appellant's fingerprints on the shotgun that was used to commit a "similar transaction" about a month before the victim's murder. See Dyer, 287 Ga. at 138, 695 S.E.2d 15. Appellant contends that the fingerprint card that the examiner said contained appellant's fingerprints was never authenticated by the person who took the prints; that trial counsel should have but did not object on this ground; and that appellate counsel was ineffective for failing to assert on appeal that trial counsel was ineffective in failing to make that objection.

We conclude, however, that even if appellate counsel had raised this ineffectiveness issue on appeal, there is not a reasonable probability that the outcome of the appeal would have been different. Three witnesses testified that the shotgun in question belonged to appellant; two of those witnesses testified that appellant threatened them with that shotgun; the shotgun, contrary to appellant's contention in this appeal, was not the murder weapon; the murder weapon was a 9mm handgun; and the 9mm shell casings found around the victim's body were fired from the same 9mm handgun that fired the shell casings that the police found in appellant's yard. To prevail on the claim that trial counsel was ineffective in failing to object to the fingerprint cards, appellate counsel would have had to show that there was a reasonable probability that the outcome of the trial would have been different if trial counsel had objected. However, based on the evidence summarized above and other evidence introduced against appellant at trial, see Dyer, 287 Ga. at 137–138, 695 S.E.2d 15, which is extremely strong, if not overwhelming, we conclude that appellant has not shown that appellate counsel could have prevailed on such a claim. Therefore, this claim of ineffective assistance of appellate counsel is without merit.

3. Appellant contends that appellate counsel was ineffective for failing to raise on appeal that trial counsel was ineffective for failing to sufficiently explore the potential bias of Liberty Harris.

At the time of trial, Harris had been convicted of three felonies and was under indictment for the murder of the victim in this case. "Harris testified for the State pursuant to an immunity agreement, and, although the State had offered her a plea deal of ten years, Harris ... rejected the deal." Dyer, 287 Ga. at 140, 695 S.E.2d 15. Based on her prior felony convictions, appellant contends that Harris was subject to recidivist punishment and would never get out of jail if convicted of the victim's murder. And he contends that trial counsel was ineffective in failing to cross-examine Harris about this recidivist punishment and that appellate c...