CourtListener 10680159

Gesamter Gesetzestext

315 Ga. 607
FINAL COPY

S22A0893. EVANS v. THE STATE.

BOGGS, Chief Justice.

Appellant Jonathan Tavarus Evans challenges his convictions

for malice murder and other crimes in connection with the shooting

death of Jamirus Wright and the non-fatal shooting of Brandon

Martin. Appellant’s only claim on appeal is that he was denied

constitutionally effective assistance of counsel at trial due to his

attorney’s failure to introduce into evidence footage from the initial

responding officers’ body cameras containing statements by them

that he claims would have lent support to his sole defense of

justification. However, Appellant has not shown that his trial

counsel’s failure to introduce such evidence was objectively

unreasonable. Thus, he has failed to show that his counsel’s

performance was constitutionally deficient, which is fatal to his
claim. Accordingly, we affirm.1

1. The evidence at trial showed the following. On Friday

night, April 27, 2018, Martin visited Wright at Wright’s mother’s

apartment in Augusta. The two men sat for hours on her patio

drinking beers and talking about sports. At some point, their friend

Angela Brooks, who lived in an adjacent building, stopped by.

Wright and Martin eventually ran out of beer, and at around 3:00

on the morning of Saturday, April 28, 2018, Wright, Martin, and

Brooks walked from the apartment complex to a nearby convenience

store. The trip took between five and ten minutes. Surveillance

1 Wright and Martin were shot in the early morning hours of Saturday,

April 28, 2018. On July 10, 2018, a Richmond County grand jury indicted
Appellant for malice murder, felony murder, aggravated assault for shooting
Martin, two counts of possession of a firearm during the commission of a felony,
and possession of less than an ounce of marijuana. At a trial from March 3 to
6, 2020, the jury found Appellant guilty of all charges except for the marijuana
possession count. The trial court sentenced Appellant to serve life in prison
without the possibility of parole for malice murder and a total of 30 years
consecutive for aggravated assault and the two firearm-possession convictions;
the felony murder count was vacated by operation of law. On March 27, 2020,
Appellant filed a motion for new trial, which he amended with new counsel on
October 22, 2020, and again on May 13, 2021. The trial court held an
evidentiary hearing on June 28, 2021, and entered an order denying the motion
on January 14, 2022. Appellant filed a timely notice of appeal, and the case
was docketed in this Court to the August 2022 term. The case was orally
argued on November 8, 2022.
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footage from the convenience store showed Martin entering the

convenience store at 3:07 a.m.; Wright and Brooks stayed outside

and smoked a cigarette. Martin bought a 12-pack of beer and exited

the store at 3:09 a.m. The three friends then walked back to the

apartment complex, where Brooks went home while Wright and

Martin resumed their positions sitting on Wright’s mother’s patio.

Appellant, who used to live in the same apartment complex as

Wright’s mother and Brooks, had previously gotten into a physical

altercation with Wright and Martin, and he spotted Martin inside

the convenience store. At 3:10 a.m., approximately one minute after

Martin exited the store, Appellant did the same. Appellant looked in

the direction that Martin went before abruptly turning around and

going back inside the store. He emerged from the store just 30

seconds later with a pair of clear latex gloves in his hand and got

into the driver’s seat of a black 2017 Honda Civic that was parked

in front of the store. Appellant waited in the parked car for several

minutes, and at 3:16 a.m., he drove to the apartment complex.

Martin testified that he saw Appellant drive to a nearby

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building in the apartment complex and get out of his car. According

to Martin, Appellant then got back in his car, drove by the patio on

which he and Wright were sitting, and parked his car in front of

Wright’s mother’s apartment. Martin testified that Appellant got

out of his car, and started firing at Wright and Martin. Several

rounds struck the iron railing in front of the patio and fragmented

into shrapnel that ricocheted in all directions. Wright sustained

multiple lacerations from the metal shrapnel, including one jacket

fragment that sliced through the right side of his throat and severed

his carotid artery, killing him. Martin was struck in the back of the

leg, between his buttocks and the back of his knee, but he was able

to crawl inside the apartment and call 911. Martin was in so much

pain that he could not effectively communicate with the 911

operator, so he handed the phone to Wright’s mother, who was

awakened by the gunfire and finished the call.

Later that same day, officers from the Richmond County

Sheriff’s Office arrested Appellant at his girlfriend’s apartment after

using the convenience store surveillance footage to determine the

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license plate number of the car that Appellant had been driving.

Appellant was taken into custody, where he was advised of his rights

under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966), and agreed to speak to law enforcement officers after signing

a written waiver of his rights. Investigator Lucas Grant, the lead

investigator, interviewed Appellant, and a video recording of the

interview was later played for the jury. In the interview, Appellant

said that Wright and Martin saw him parked at the apartment

complex and “talked s**t” to him and that Wright pointed a gun at

him and said that he was going to shoot Appellant’s “b**ch a**.”

Appellant admitted that Wright did not fire any shots at him but

said that he was scared for his life and that he fired four shots from

his rifle at Wright and Martin.

Although law enforcement officials found a black cell phone

that belonged to Wright on the patio of the apartment, they found

no gun or bullets on the patio or inside the apartment, and no

evidence that any shots had been fired from those locations. Further,

Martin testified that neither he nor Wright had a firearm, and

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Wright’s mother testified that her son and Martin had never owned

firearms. Brooks also testified that she did not see Martin with a

gun that night and that Wright and Martin have “never been the

type to carry a weapon.” Law enforcement officials recovered four

bullet casings from the location from which Appellant fired at

Wright and Martin, which was about 100 feet in front of Wright’s

mother’s apartment. Forensic evidence showed that those casings

were fired from Appellant’s SKS rifle, which a law enforcement

official recovered from one of Appellant’s friends. At trial, the jury

was instructed on the law of justification and self-defense.

2. Appellant’s sole claim on appeal is that he was denied

constitutionally effective assistance of counsel at trial. We disagree.

(a) As background, in an amended motion for new trial,

Appellant contended that trial counsel was constitutionally

ineffective by failing to present evidence of audio and video

recordings made by the initial responding officers’ body cameras,

which, according to Appellant, would have supported his claim of

self-defense.

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At the motion for new trial hearing, Appellant introduced the

body-camera recordings of several of the officers. The recordings

were made before law enforcement officials became aware of

Appellant’s role in the shooting and before evidence was discovered

showing that Appellant had fired four shots toward Wright and

Martin while standing about 100 feet away from the patio. In the

recordings, the officers said that the bullets were not fired “from . . .

outside” the apartment, but instead “came from the inside.” One

officer said “[a]ll that sh*t happened inside,” and another said, “I

think so too.” They also expressed concern that Martin “knows

something and isn’t saying anything”; that “[m]aybe [Wright and

Martin] shot each other”; and that Wright’s mother “had plenty of

time to hide the guns.”

At the motion for new trial hearing, trial counsel testified that

the defense at trial was that Wright and Martin “became verbally

abusive” to Appellant and that Appellant thought that “one of the

individuals was holding up what [Appellant] thought was a gun,”

prompting Appellant to fire in self-defense. Counsel added that he

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did not need any particular evidence to be able to argue to the jury

that there was time, before law enforcement officials arrived at the

scene, for someone in the apartment to hide a gun, and that

“anybody can figure that out.” Trial counsel explained that because

a black cell phone was found on the patio, he was able to present the

defense that Appellant was justified in shooting because he had been

threatened and because he either saw a firearm that had been

hidden after the shooting or he saw an object that it was reasonable

for him to think was a firearm. Furthermore, counsel testified that

the body-camera recordings were made when the officers had just

arrived at the scene and were “kind of spit-balling possibilities” and

that he “can’t ask somebody, well, did this ever cross your mind,”

adding that all he could “deal with is what the evidence is.” He also

explained that the officers’ initial speculation that there may have

been shots fired from inside the apartment would not have been

helpful to the defense because there was no forensic evidence that

shots were fired from inside the apartment; because, in his

statement, Appellant said that Wright and Martin were outside of

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the apartment on the patio and did not fire shots at him; because

the evidence at trial showed, consistent with Appellant’s statement,

that Wright and Martin were on the patio; and because, given the

darkness that night and the fact that Appellant was located about

100 feet from the apartment and at a lower elevation than the

apartment, someone inside the apartment “would have never known

that [Appellant] was even out there.” Further, counsel stated that

presenting evidence of the body-camera recordings would not “have

made a lot of sense given the entirety of the evidence” and did not

“really . . . fit in with what our defense had to be.” In denying

Appellant’s motion for new trial, the trial court concluded that trial

counsel’s decision not to introduce the evidence was a strategic one

and did not constitute constitutionally deficient performance.

On appeal, Appellant argues that trial counsel was

constitutionally ineffective in failing to present evidence of the

officers’ observations that shots were possibly fired from inside the

apartment toward Appellant’s location.

(b) To establish that his trial counsel was constitutionally

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ineffective, Appellant was required to prove both deficient

performance by counsel and resulting prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).

To show that his lawyer’s performance was deficient, Appellant had

to demonstrate that the lawyer performed his duties in an

objectively unreasonable way, considering all the circumstances and

in the light of prevailing professional norms. See id. at 687-688. The

law recognizes a “strong presumption” that counsel performed

reasonably, and the defendant bears the burden of overcoming this

presumption. See id. at 689. To carry this burden, Appellant must

show that “no reasonable lawyer would have done what his lawyer

did, or would have failed to do what his lawyer did not.” Washington

v. State, 313 Ga. 771, 773 (873 SE2d 132) (2022) (cleaned up). Even

when a defendant has proved that his counsel’s performance was

deficient, he also must prove resulting prejudice by showing “a

reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. Moreover, “there is no reason for a court deciding

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an ineffective assistance claim . . . to address both components of the

inquiry if the defendant makes an insufficient showing on one.” Id.

at 697.

counsel’s performance was deficient. To begin, contrary to

Appellant’s assertion, the body-camera recordings do not indicate

that the responding officers thought that shots were fired from

inside the apartment toward Appellant’s location some 100 feet

away. They indicate only that the officers thought that the shots

that hit Wright and Martin may have been fired from inside the

apartment and that Wright and Martin may have been shooting at

each other. Moreover, an attorney’s decisions “as to what witnesses

and other evidence to present are a matter of trial strategy,” see

Horton v. State, 310 Ga. 310, 328 (849 SE2d 382) (2020) (cleaned

up), and such decisions will form the basis for an ineffectiveness

claim “only if they were so patently unreasonable that no competent

attorney would have followed such a course.” Washington, 313 Ga.

at 773 (cleaned up). Here, the record shows that trial counsel made

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a strategic choice to establish the facts needed to support Appellant’s

self-defense claim by relying on Appellant’s statement that,

although the victims did not shoot toward him, Appellant

nevertheless acted in self-defense based on the victims’ verbal threat

to him and Appellant’s perception that Wright was pointing a gun

at him. Moreover, the defense as presented by counsel was

consistent with the forensic evidence that no shots were fired from

inside the apartment, with witnesses’ testimony that Wright and

Martin were unarmed, and with Appellant’s own statement that the

victims did not fire at him. On the other hand, the strategy that

Appellant now contends that counsel should have adopted would

have been inconsistent not only with the forensic evidence and

witness testimony but also with Appellant’s own statement. Under

these circumstances, Appellant has failed to overcome the strong

presumption that counsel’s performance was objectively reasonable.

See Davis v. State, 315 Ga. 252, 261-262 (882 SE2d 210) (2022)

(holding that the defendant had failed to overcome the strong

presumption that trial counsel performed reasonably where the

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record showed that counsel made a strategic choice to present the

defendant’s self-defense claim through cross-examination of a

witness and not by calling an expert witness to testify); Birdow v.

State, 305 Ga. 48, 49, 52-53 (823 SE2d 736) (2019) (holding that trial

counsel did not perform deficiently in electing not to call a defense

expert to help establish the defendant’s claim of self-defense and

instead relying on cross-examination of a State’s witness to support

that claim, particularly because the expert’s testimony would have

contradicted a part of the defendant’s statement to law enforcement

officers that formed the basis for his self-defense claim). Accordingly,

Appellant’s claim of ineffective assistance fails.

Judgment affirmed. All the Justices concur.

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Decided February 21, 2023.

Murder. Richmond Superior Court. Before Judge Dickert,

Senior Judge.

The Steel Law Firm, Brian Steel, for appellant.

Jared T. Williams, District Attorney, Joshua B. Smith,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Emily R. Polk, Assistant

Attorney General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: February 21, 2023