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Bryant v. State

Supreme Court of Georgia

May 30, 2017


          Boggs, Justice.

         Appellant 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.[1] 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.

         1. 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.

         The 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 later dismissed.

         The 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.

         The 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).

         2. 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).

         Bryant asserts that trial counsel was ineffective for failing to move to suppress the fruits of the search warrant on particularity grounds.[2] 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).

         Officers 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.

         Bryant 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 ...

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