State v. Small

• Docket Number: A23A1140
• Decision Date: 28 August 2023
• Parties: THE STATE v. SMALL.
• Court: Georgia Court of Appeals

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THE STATE
v.
SMALL.

No. A23A1140

Court of Appeals of Georgia, Second Division

August 28, 2023

MERCIER, C. J., MILLER, P. J., and HODGES, J.

MILLER, Presiding Judge

In connection with a shooting incident, a jury found Percy Small guilty of aggravated assault with a deadly weapon and various other offenses. The trial court granted Small's motion for new trial in part, determining that Small received ineffective assistance of counsel based on his trial attorney's failure to request a jury instruction on reckless conduct as a lesser included offense of aggravated assault. The State now appeals, arguing that the trial court erred in granting Small a new trial because the court misapplied the law and made clearly erroneous findings. We agree that the trial court erred in determining that Small received ineffective assistance, and therefore we reverse the trial court's grant of a partial new trial.

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The record shows that on an evening in November 2015, Anthony Lundy and Demeco Person were driving in a white van in a Fulton County neighborhood, headed to a friend's home for a birthday party. It was dark, however, and the men had difficulty finding the apartment. An individual saw the van and announced to a group of men, including Small, that it appeared that "some boys [were] riding around the hood" to attempt a robbery. Small and two other men saw the white van in the vicinity and began firing at it and toward the air. A witness heard approximately 12 gunshots, and multiple bullets hit the van. Lundy was shot and killed.

Small was indicted on 11 counts, including malice murder, felony murder, and aggravated assault with a deadly weapon. Count 7 of the indictment alleged that Small and the other two shooters committed aggravated assault with a deadly weapon by "shooting [Lundy] with a handgun...." Count 8 alleged that Small and the other two shooters committed aggravated assault with a deadly weapon by "shooting at, toward, and in [Person's] direction with a handgun...." At trial, the jury was instructed on the principle of parties to a crime. Small was found guilty of five counts: two counts of aggravated assault with a deadly weapon, one count of possession of a firearm during the commission of a felony, and two counts of possession of a firearm by a convicted felon. He was acquitted on the remaining

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counts and sentenced to serve 65 years in confinement. In his motion for new trial, Small argued that he received ineffective assistance of counsel because his trial attorney failed to request a jury instruction on the lesser included offense of reckless conduct. At the motion hearing, Small's trial counsel acknowledged that discharging a firearm into the air could constitute reckless conduct, but he testified that he did not see any basis for requesting such a charge. Instead, he requested a jury instruction on the lesser included offense of discharge of a pistol near a public highway, which had been rejected by the trial court.

Following the hearing and the submission of additional letter briefs, the trial court granted Small's motion for new trial in part. The court reasoned that Small's trial counsel performed deficiently by not requesting a jury instruction on reckless conduct, after first failing to perform research to determine that the lesser included instruction that he had requested was foreclosed by precedent. Also, the trial court found that a charge on reckless conduct was supported by slight evidence based on Small's statement to law enforcement that he merely fired his gun into the air while standing on a street corner. Ultimately, the court found that if the jury had been presented with the possibility of finding Small guilty of reckless conduct and had accepted this lesser offense as its verdict, it would have operated as an acquittal on

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the two aggravated assault counts (Counts 7 and 8), possession of a firearm during the commission of a felony (Count 10), and one count of possession of a firearm by a convicted felon (Count 15). Applying this rationale, the trial court granted Small a new trial on these four counts. The State now appeals.

In two related claims of error, the State contends that (1) the trial court misapplied the law when determining that Small's trial counsel performed deficiently in not requesting a jury charge on reckless conduct; and (2) the trial court erred in finding that the facts of this case provided evidence of reckless conduct. We agree that the trial court erred in granting Small a partial new trial because Small's act of firing into the air constituted aggravated assault - not reckless conduct - and therefore Small's trial counsel did not render deficient performance by not requesting a jury charge on reckless conduct as a lesser offense.

In assessing whether Small received ineffective assistance of counsel, we apply the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).

To show that the performance of his lawyer was deficient, [Small] must prove that his lawyer performed [his] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. As for prejudice, the proper standard

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requires [Small] to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. If the defendant fails to satisfy

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