Vann v. State

• Decision Date: 19 April 2021
• Docket Number: S21A0121
• Citation: 857 S.E.2d 677,311 Ga. 301
• Court: Georgia Supreme Court
• Parties: VANN v. The STATE.

311 Ga. 301

857 S.E.2d 677

VANN

v.The STATE.

S21A0121

Supreme Court of Georgia.

Decided: April 19, 2021

Robert L. Persse, for appellant.

Jacqueline L. Johnson, District Attorney, Jan Kennedy, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.

Ellington, Justice.

An Appling County jury found James Vann guilty of malice murder and other crimes in connection with the shooting death of Tiesha Davis.¹ On appeal, Vann contends that his trial counsel was ineffective in failing to request a jury instruction on the lesser offense of voluntary manslaughter. Because Vann has failed to show that his trial counsel was constitutionally deficient in not requesting the instruction, we affirm.

1. The evidence presented at trial showed that on the morning of August 24, 2012, Davis drove to Vann's residence approximately four miles outside of Baxley to pick up her infant son. Davis called the police at approximately 10:05 a.m. after Vann, the child's father, refused to give her the baby. An Appling County Sheriff's deputy responded to the call and spoke with Vann, who returned the child to Davis.

While Davis was placing the baby in a car seat, Vann came outside and asked Davis and the deputy to leave. She and the deputy complied, drove towards Baxley, and then pulled their vehicles off the side of the road, where the deputy finished taking Davis's statement. While Davis was speaking to the deputy, Vann drove by.

Davis returned to her home in Baxley, where her mother Karen Moore and her cousin Marquetta White were waiting for her in White's car, which was parked in the yard. Moore got out of White's car and walked over to Davis's car when Davis arrived. Davis then handed the baby to Moore.

Moore testified that, after she took the child, Vann pulled up in a car, got out, and said, "What's poppin’, B? You're going to learn." Moore saw Vann reach into his pants, pull out a gun, and shoot Davis several times. After shooting Davis, Vann put the gun against Moore's head and the child's head. White testified that, from her vantage point in the car, she saw Vann pull up, get out of his car, and point a gun, and she then heard gunshots. White heard Vann comment, "That's for calling the folks on my house." After Vann drove away, White saw that Davis had collapsed face down.

Davis's brother, Tremaine Richburg, testified that he was inside the house when he heard Davis arrive. When he heard Moore scream, he went to the door. He saw Davis lying on the ground and Vann holding a gun. According to Richburg, he ran back into the house, grabbed his gun, came out on the porch and shot at Vann's car as Vann drove away. He chased after Vann on foot and then called 911 shortly after 11:00 a.m. with his prepaid cell phone. According to Richburg, he then headed to a nearby IGA grocery store to put "minutes" on his cell phone.

The responding officers found Davis dead at the scene. The medical examiner testified at trial that Davis had died as a result of multiple gunshot wounds.

While officers were working the crime scene they received a report about an agitated man at the IGA. An officer responding to the report found an agitated Richburg walking down the sidewalk.

Richburg refused the officer's request to stop and talk, but several more officers soon arrived and detained Richburg.

That same morning, Bryan Holmes, Moore's cousin, pulled up to a stop sign in his car when he noticed in his rear view mirror that a car was speeding toward him from behind. The car went around Holmes and turned left onto City Circle Road. Holmes saw that Vann was driving the vehicle. Holmes turned left onto City Circle Road behind Vann, and he saw Vann make a right turn onto a dirt road. Holmes saw Vann stop and throw what appeared to be a gun into the woods. Holmes stopped at a nearby gas station and called the police to report what he had just seen. Police later searched the area and recovered a magazine made to fit in either a .38-caliber or a 9mm pistol. Three 9mm shell casings were recovered at the crime scene.

When officers took Vann into custody later that day, they noticed that he had a small, round wound on his lower back. The passenger side window of Vann's car was "busted out," an officer testified, and there was blood on the back of the driver's seat.²

2. Vann claims that his trial counsel was constitutionally ineffective in failing to request a jury instruction on voluntary manslaughter as a lesser offense of murder.

To establish that his trial counsel was constitutionally ineffective, [Vann] must prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington , 466 U. S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that his lawyer's performance was deficient, [Vann] must demonstrate that the lawyer performed [her] duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. This is no easy showing, as the law recognizes a "strong presumption" that counsel performed reasonably, and [Vann] bears the burden of overcoming this presumption. Id. at 689. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, 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.

Gardner v. State , 310 Ga. 515, 518 (2), 852 S.E.2d 574 (2020) (citations and punctuation omitted).

Vann's trial counsel testified at the hearing on the motion for new trial. Her defense theory was that Richburg pulled a gun and started shooting, and that Davis was caught in the crossfire between Vann and Richburg. Consistent with this theory of defense, counsel requested jury instructions on accident and involuntary manslaughter. According to counsel, she did not request a charge on voluntary manslaughter because she had discussed her theory of defense with Vann and the charge did not "fit" with that theory. She also did not believe that the defense could show the "passion" required by a voluntary manslaughter defense in light of the lapse of time from the interaction between Vann and Davis at Vann's home and the shooting at Davis's home.³

During her closing at trial, trial counsel argued among other things that the testimony of the witnesses who claimed to have seen the shooting was not credible because White's line of sight was obscured and Moore's testimony was not consistent with White's testimony or Richburg's testimony. She also argued that Richburg fired at Vann and then ran from the scene without telling anyone where he was going or even asking his mother if sh...