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Blackwell v. State

Supreme Court of Georgia

January 29, 2018

BLACKWELL
v.
THE STATE. THE STATE
v.
BLACKWELL

          HINES, CHIEF JUSTICE.

         In Case Number S17A1928, Samuel Rickey Blackwell appeals his convictions for malice murder, two counts of aggravated assault, two counts of cruelty to children in the first degree, and possession of a firearm during the commission of a felony, all in connection with the fatal shooting of Deirdre Smith and the wounding of two children. Blackwell challenges the sufficiency of the evidence of his guilt, the effectiveness of his trial counsel, and certain instructions to the jury. In Case Number S17A1929, the State appeals the trial court's denial of its motion to vacate Blackwell's sentence of life in prison for murder as void and to enter a sentence of life in prison without the possibility of parole. For the reasons that follow, we affirm in both cases.[1]

         Case No. S17A1928

         1. Construed to support the verdicts, the evidence showed the following. On the evening of September 16, 2013, Dionna Jackson and Takeisha Lindsey began to physically fight in the parking lot of an apartment complex. As the two girls fought, Jackson's boyfriend, Khalil Kelly, walked about the scene with his arms folded and a gun tucked into his pants. Several witnesses felt that Kelly presented a threat to those in the parking lot, and one neighbor called 911. Smith, who was the mother of Lindsey's boyfriend, Darrold Hadley, went out to break up the fight. Blackwell also came outside and asked about breaking up the fight. Kelly began arguing with Blackwell and told him to "get the 'F' back inside before some stuff goes down." This expression was understood by those in the neighborhood to be a very serious threat that would generally include fighting or shooting. Blackwell returned to his apartment for about one minute. When he came back outside, Blackwell asked Hadley if Kelly was in his family, and Hadley answered that he did not know Kelly. Blackwell immediately began shooting a .40 caliber pistol at Kelly, who fired back with a 9-millimeter pistol. The two continued to shoot at each other from some distance with other people caught in the middle. Smith died at the scene from gunshot wounds. Lindsey's four-year-old brother was wounded in his upper right leg, and her ten-year-old sister was wounded in her right hip. After the gunfight, Blackwell fled in an automobile and, four days later, turned himself in to police. Kelly also fled and subsequently was taken to a hospital for treatment of gunshot wounds to his chin and left foot.

         Blackwell argues that there was no evidence that he knew Smith at all or intended any harm to her, much less that he acted with express or implied malice toward her. From the circumstances proven in this case, however, a rational jury could have inferred that Blackwell shared a common criminal intent with Kelly to engage in a gunfight in the presence of innocent bystanders, and even though Smith evidently was not an intended victim of the gunfight and Kelly fired the fatal shot, the evidence was sufficient for a rational trier of fact to find that Blackwell was a party to the crime of malice murder under the doctrine of transferred intent. See Coe v. State, 293 Ga. 233, 235 (1) (748 S.E.2d 824) (2013); see also Giddens v. State, 299 Ga. 109, 111 (1) (b) (786 S.E.2d 659) (2016); Jones v. State, 292 Ga. 656, 658 (1) (a) (740 S.E.2d 590) (2013). Moreover, we conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial authorized the jury to find Blackwell guilty beyond a reasonable doubt of all crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         Blackwell also argues that when the trial court instructed the jury what was required to find Blackwell guilty of felony murder, it used the term "murder" instead of "felony murder, "[2] thereby conveying the notion that the jury would be authorized to convict Blackwell of malice murder even without evidence of malice toward Smith. But any deficiency in the jury charge does not control the separate question of whether the proof of malice was sufficient, and Blackwell's complaint about the jury charge is not itself properly before us because he failed to object to that charge at trial and, "unlike the allegedly insufficient evidence of [malice murder], it was not enumerated as error." Faulkner v. State, 295 Ga. 321, 323-324 (1) (b) (758 S.E.2d 817) (2014). See also Terry v. State, 291 Ga. 508, 509 (2) (731 S.E.2d 669) (2012) (review of a jury instruction for plain error is available only "if the error is properly enumerated and argued on appeal"). Even assuming that Blackwell has properly complained about the jury instruction, it was taken from the pattern charge, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 2.10.30 (4th ed. 2007); the trial court specifically indicated that it was defining felony murder; and, read as a whole, the jury charge "clearly did not commingle malice murder and felony murder together and confuse the jury into believing that the two are the same." Parker v. State, 282 Ga. 897, 900 (7) (655 S.E.2d 582) (2008).

         2. Blackwell does enumerate as error the trial court's jury charges on accident and transferred intent, asserting that, taken together, they were misleading and contradictory. But he "did not object to [those] instruction[s] [at trial], and for that reason, we review [them] only for plain error. See OCGA § 17-8-58 (b). See also State v. Kelly, 290 Ga. 29, 31-32 (1) (718 S.E.2d 232) (2011)." Faulkner, 295 Ga. at 327 (5). As we have often explained, review for plain error means that we will reverse the trial court only if there was an instructional error that "was not affirmatively waived, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings." Herrington v. State, 300 Ga. 149, 151 (2) (794 S.E.2d 145) (2016) (citation and punctuation omitted). The appellant has the burden of showing a clear or obvious error and further making an affirmative showing that the error probably did affect the outcome below. Lyman v. State, 301 Ga. 312, 317 (2) (800 S.E.2d 333) (2017).

         With these principles in mind, we turn now to examine the language of the charges that we must review for plain error. The charge on the affirmative defense of accident began as follows: "No person shall be found guilty of any crime committed by misfortune or accident in which there was no criminal scheme, undertaking or intention." This language was correct in substance. See Hamilton v. State, 260 Ga. 3, 5 (5) (389 S.E.2d 225) (1990). Immediately before that accident charge, the instruction on transferred intent stated that, "[i]f one intentionally commits an unlawful act, yet the act harmed a victim other than the one intended, it is not a defense that the defendant did not intend to harm the actual person injured." This charge also fairly covered the correct legal principles related to transferred intent. See Armstrong v. State, 250 Ga.App. 784, 785-786 (552 S.E.2d 920) (2001).

         Blackwell contends, however, that these successive charges effectively negated the accident instruction by telling the jury that there could be an accident if Blackwell had no intent, but that under the legal fiction of transferred intent, it did not matter if he had no intent. But it is not difficult to understand the difference in the two instructions at issue. The charge on transferred intent addresses the circumstance of an intentional act by which the defendant intended to harm someone other than the injured person, while the charge on accident deals with the absence of any criminal intention whatsoever. See Berry v. State, 267 Ga. 476, 478 (3) (480 S.E.2d 32) (1997) (relating in part to the difference between charges on accident and transferred intent).

         Moreover, where, as here, a defendant complains of the juxtaposition of correct statements of law in the charge to the jury, we apply the usual rule that they must be read in context of the whole jury charge. See Pollard v. State, 230 Ga.App. 159, 160 (3) (495 S.E.2d 629) (1998). In this case, the trial court thoroughly charged the jury on the presumption of innocence, the burden to prove each element of the crime beyond a reasonable doubt, and the definition of a crime as being a joint operation of an act and intention. The court specifically instructed the jury that "intent is an essential element of any crime and must be proved by the state beyond a reasonable doubt." And the court later charged that, "in order to prove its case, the state must show intent [and] must negate or disprove mistake, accident and lack of justification." It therefore does not appear that the charges on accident and transferred intent, assessed in the context of the entire charge and not from isolated excerpts, were confusing or misleading with respect to criminal intent. See Berry, 267 Ga. at 478 (3). Accordingly, Blackwell has failed to show either an obvious instructional error or an error that likely affected the outcome of his trial, and it follows that there was no plain error.

         3. Blackwell asserts that his trial counsel rendered ineffective assistance by pursuing an all-or-nothing trial strategy and waiving a jury charge on voluntary manslaughter as a lesser included offense without consulting Blackwell. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984), "a defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different." Harvey v. State, 300 Ga. 598, 606 (9) (797 S.E.2d 75) (2017) (citations omitted). "While the test imposed by Strickland is not impossible to meet, the burden is a heavy one." Faust v. State, 302 Ga. 211, 217 (4) (805 S.E.2d 826) (2017) (citation and quotation marks omitted). For Blackwell "to satisfy the first requirement of Strickland, he has to overcome the strong presumption that his trial counsel's performance was within the wide range of reasonable professional conduct, and that counsel's decisions were the result of reasonable professional judgment." Schmidt v. State, 297 Ga. 692, 696 (3) (778 S.E.2d 152) (2015) (citation omitted). The reasonableness of counsel's conduct must be evaluated "from counsel's perspective at the time of trial and under the particular circumstances of the case, and 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." Daniels v. State, 302 Ga. 90, 94 (2) (805 S.E.2d 80) (2017) (citations omitted).

         "An attorney's decision about which defense to present is a question of trial strategy." Hendrix v. State, 298 Ga. 60, 62 (2) (a) (779 S.E.2d 322) (2015) (citation and quotation marks omitted). More specifically, "[p]ursuit of an 'all or nothing' defense [generally] is a permissible trial strategy." Smith v. State, 301 Ga. 348, 353 (III) (b) (801 S.E.2d 18) (2017). "[T]he decision not to request a jury charge on a lesser included offense in order to pursue an 'all-or-nothing' defense is a matter of trial strategy." Wells v. State, 295 Ga. 161, 166 (2) (b) (758 S.E.2d 598) (2014) (citation and quotation marks omitted). Furthermore, although "attorneys do have an affirmative duty to consult with their clients" about what defense to present, "an attorney's failure to fulfill the duty to consult regarding trial strategy does not in and of itself constitute ineffective assistance." Hendrix, 298 Ga. at 64-65 (2) (a) (citations omitted). As authority for this principle, Hendrix cited Van Alstine v. State, 263 Ga. 1, 3-4 (426 S.E.2d 360) (1993), which relied on the portion of the commentary to ABA Standard for Criminal Justice 4-5.2 (2nd ed. 1980) that recognized the defense lawyer's duty to consult fully with the accused about submission of lesser included offenses to the jury, but which rejected the same commentary's statement that the defendant rather than the lawyer should decide whether to seek such submission. Since Van Alstine, we are not aware of any development that would cause us to reconsider its holding. To the contrary, the commentary to the next edition of that same ABA Standard continued to recognize the duty to consult with the defendant about lesser included offenses but removed the language assigning the ultimate decision to the defendant, see ABA Standard for Criminal Justice 4-5.2 cmt. (3rd ed. 1993), and afterwards "courts have uniformly decided that whether or not to ask the trial judge to instruct the jury on lesser-included offenses is a matter of strategy and tactics ceded by a defendant to his lawyer." People v. Colville, 979 N.E.2d 1125, 1130 (N.Y. 2012) (collecting cases). See also Rule 1.2 (a) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102 (d) (also omitting such decision from its list of decisions reserved to criminal defendants). Accordingly, we adhere to our decision in Van Alstine that the failure to consult fully with the accused about whether to pursue an all-or-nothing defense or request a jury charge on a lesser included offense should be rigorously scrutinized, but that such failure does not constitute ineffective assistance of counsel in every case as a matter of law. 263 Ga. at 4. See also Roberts v. State, 263 Ga. 807, 808-809 (2) (c) (439 S.E.2d 911) (1994).

         At the hearing on the motion for new trial, Blackwell's trial counsel explained that he requested jury charges on justification and accident, but not voluntary manslaughter, based on his discussions with Blackwell, the evidence supporting the self-defense charge, and the lack of evidence supporting a charge on voluntary manslaughter. Counsel believed that it would have been inconsistent under the evidence to claim self-defense, but then also to ask for a charge on voluntary manslaughter. Throughout the case, including in his testimony on motion for new trial, Blackwell himself consistently maintained that he acted in self-defense. In this case, therefore, as in Van Alstine, the transcript of the hearing on Blackwell's motion for new trial establishes that a charge on voluntary manslaughter "was declined pursuant to an informed strategic choice by trial counsel which comported with [Blackwell]'s strong feelings about the justification defense." 263 Ga. at 4. It was not patently unreasonable for trial counsel, rather than risk losing credibility, to make the strategic decision not to seek a voluntary manslaughter charge and not "to convince [Blackwell] that it was the preferable way to proceed." Wells, 295 Ga. at 165 (2) (b). See also Savior v. State, 284 Ga. 488, 493 (4) (668 S.E.2d 695) (2008) ("counsel is entitled to base the defense on the veracity of the client's assertions" (citation and quotation marks omitted)).

         Moreover, even assuming that trial counsel's performance was deficient, Blackwell has not shown resulting prejudice. "In the context of a failure-to-consult claim such as that alleged here, the defendant must establish that his counsel's failure to consult was prejudicial to his defense, i.e., that there is a reasonable probability that, but for counsel's failure to consult, the result of his trial would have been different." Hendrix, 298 Ga. at 64 (2) (a) (citation and punctuation omitted). Blackwell relies on his testimony that, had counsel explained the offense of voluntary manslaughter and its penalty, he would have asked trial counsel to request a charge on that offense. To demonstrate prejudice, however, Blackwell would have to establish a reasonable probability that, had counsel consulted with him, counsel would have opted to pursue a charge on the lesser included offense of voluntary manslaughter and that such a strategy would in reasonable probability have resulted in a different outcome. See id. In the first place, there is no evidence that counsel would have requested a charge on voluntary manslaughter, a decision that was his to make, even if he had properly consulted Blackwell. To the contrary, counsel's testimony shows that he reasonably viewed such a charge as inappropriate and unhelpful. Second, had trial counsel consulted with Blackwell and requested a charge on voluntary manslaughter, there could be no ineffective assistance if the charge was not supported by even slight evidence that he was seriously provoked, causing him to begin shooting solely as the result of a sudden, violent, and irresistible passion. See Jeffrey v. State, 296 Ga. 713, 716 (2) (770 S.E.2d 585) (2015). There was some evidence, on which Blackwell relies, that he had been injured by numerous gunshots on two prior occasions, that he did not go back inside his apartment on this occasion, and that he may have acted in self-defense after Kelly made a verbal threat and cocked his pistol. But Blackwell did not testify at trial, and there is no evidence that he reacted passionately to Kelly's threat and pistol-wielding. See Allen v. State, 290 Ga. 743, 746-747 (4) (723 S.E.2d 684) (2012); see also Dugger v. State, 297 Ga. 120, 124 (7) (772 S.E.2d 695) (2015). Finally, even if the record could be construed to include slight evidence of voluntary manslaughter so as to warrant a charge thereon, Blackwell was not prejudiced unless there is a reasonable probability that, absent counsel's alleged ...


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