Avery L. Bryant was tried before a jury and found guilty of
malice murder, felony murder, aggravated assault with a
deadly weapon, possession of a firearm during the commission
of a felony, and possession of a pistol by a person under the
age of 18. He now appeals, asserting that the trial
court committed plain error in its jury instructions and that
he received ineffective assistance of trial counsel. We agree
that counsel was ineffective and therefore reverse.
Viewed in the light most favorable to the verdict, the
evidence showed that Bryant, who was then 17 years old, his
brother, X.M., and three other teenagers, D.B., D.J., and
D.T., all of whom testified at trial, had been playing
basketball at a recreation center in East Point when they all
left, walked down the street, and sat on a brick wall. The
victim, Newton Gordon, drove up and asked the teens for
directions. D.J. went up to the car and told the victim,
"I don't know how to get there." Bryant then
walked up to the car and "just start[ed] shooting"
at the victim. The victim's car lunged forward, hit a
telephone pole, and caught on fire.
five teens ran in different directions. When the group came
together again moments later in the neighborhood nearby, D.B.
asked Bryant, "why you do it?, " to which Bryant
responded that "he had his first body." The teens
then walked to D.J.'s home. D.J. told his mother what had
happened as police arrived on the scene, and she sent D.J.
with a detective to give a statement. Before police arrived,
Bryant changed his shirt and his uncle drove him, his brother
X.M., and D.T. to Bryant's home in Marietta. Officers
arrived at Bryant's home the next morning and arrested
the three teens, but the charges against X.M. and D.T. were
victim died from a gunshot wound to the chest. Officers found
.40 caliber shell casings and a .40 caliber bullet at the
scene. The murder weapon was never found, but officers found
an empty box for .40 caliber ammunition under Bryant's
bed in a search of his home.
evidence presented at trial and summarized above was
sufficient to enable a jury to find Bryant guilty beyond a
reasonable doubt of the crimes for which he was convicted.
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
Bryant argues that his trial counsel was ineffective.
To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (104
S.C. 2052, 80 L.Ed.2d 674) (1984), an appellant must show
both that counsel's performance was deficient and that
the deficient performance prejudiced the defense.
(Citations and punctuation omitted.) Dunn v. State,
291 Ga. 551, 553 (4) (732 S.E.2d 524) (2012).
asserts that trial counsel was ineffective for failing to
move to suppress the fruits of the search warrant on
particularity grounds. We agree.
Where defense counsel's failure to litigate a Fourth
Amendment claim competently is the principal allegation of
ineffectiveness, the defendant must also prove that his
Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been
different absent the excludable evidence in order to
demonstrate actual prejudice.
Kimmelman v. Morrison, 477 U.S. 365, 375 (II) (A)
(106 S.Ct. 2574, 91 L.Ed.2d 305) (1986).
obtained a search warrant for Bryant's residence and
searched the entire home. There they found a .38 caliber
bullet, a knife, some scales, several gloves, a BB pellet,
and a pair of sneakers. In a drawer under Bryant's bed,
officers found an empty box for .40 caliber ammunition.
Bryant moved to suppress these items, and following a
hearing, the trial court found that there was a "basis
to obtain the search warrant, " but that "the
search exceeded the scope of what would be within the terms
of the warrant, whether in writing or orally." The court
suppressed all of the above-listed items with the exception
of the empty .40 caliber ammunition box, which was admitted
at trial, and the sneakers.
argues that the search warrant is invalid on its face because
it fails to state with particularity the items to be seized.
We agree. The Fourth Amendment requires that a warrant
particularly describe the place to be searched and the
persons or things to be seized. U.S. Const. amend. IV.
"A warrant that fails to conform to the particularity
requirement of the Fourth Amendment is
unconstitutional." (Citations and punctuation omitted.)
Groh v. Ramirez, 540 U.S. 551, 557 (II) (124 S.Ct.
1284, 157 L.Ed.2d 1068) (2004). Here, the search warrant did
not provide a list of items to be seized. Rather, the box
provided for listing those items contained only a detailed
description of Bryant's ...