Marquis Jackson appeals his convictions for malice murder and
other charges related to the shooting death of Detavious
Milner at an April 2015 house party in Floyd
County. He argues that his trial counsel was
constitutionally ineffective when he argued against
bifurcating a charge that Appellant possessed a firearm as a
convicted felon. Appellant also argues that his post-trial
discovery of material evidence requires that he be granted a
new trial. Appellant has not overcome the presumption that
trial counsel's decision to withdraw Appellant's
request for bifurcation was part of an objectively reasonable
trial strategy, and Appellant has not satisfied the standard
for obtaining a new trial based on newly discovered evidence.
evidence in the light most favorable to the verdict shows
that Appellant, Joseph Jackson, and Javarick McCain met on
the evening of April 7, 2015, and Appellant told the others
that Quatevious Johnson owed him money. Appellant gave Joseph
Jackson a gun and said they were going to go get his money.
McCain dropped off Appellant and Joseph Jackson near
Johnson's house. Appellant and Joseph Jackson went into
the house and approached a crowd gathered in a bedroom.
Pointing the gun at the room, Joseph Jackson demanded money.
When no one complied, Appellant told Joseph Jackson to shoot.
Joseph Jackson didn't shoot, and so Appellant took the
gun and started shooting, fatally wounding Milner. Three
other victims, including Johnson, were shot but survived.
Appellant chased Johnson, convinced him to give up money
stashed in his sock, and tried to shoot him again, but the
gun did not fire. McCain then picked up Appellant and Joseph
Jackson and drove off.
Joseph Jackson (also indicted for murder) testified that
Appellant fired the gun, other prosecution witnesses
implicated Joseph Jackson as the shooter. McCain (also
indicted) testified that Joseph Jackson acknowledged shooting
someone. Johnson identified Joseph Jackson as the shooter,
thought he recognized the voice of one of the robbers as
Appellant's, and picked Appellant out of a photo array.
Two other witnesses who survived being shot did not
positively identify the shooter at trial but indicated in
their testimony that the person who had the gun initially was
the same one who fired it.
Smith, an inmate incarcerated with Appellant, testified that
Appellant admitted he went to Johnson's house the night
of the shooting but claimed Joseph Jackson was the shooter;
Smith acknowledged having previously told police that
Appellant admitted to being the shooter. The jury also heard
evidence that Appellant offered money to people in exchange
for implicating Joseph Jackson.
defense presented the testimony of Calvin Adams, who claimed
that he saw Joseph Jackson (carrying a gun) and McCain, but
not Appellant, walking up the street by Johnson's house
on the night of the shooting.
Appellant does not challenge the sufficiency of the evidence,
we have independently reviewed the record and conclude that
the trial evidence was legally sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that
he was guilty of the crimes for which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979).
argues that he was denied the assistance of constitutionally
effective counsel when his lawyer argued against bifurcation
of the felon in possession of a firearm charge. We disagree.
was indicted for malice murder, felony murder (predicated on
armed robbery, aggravated assault, aggravated battery, and
burglary), armed robbery, burglary, five counts of aggravated
assault, four counts of aggravated battery, two counts of
possession of a firearm during the commission of a crime,
participation in criminal street gang activity, and
possession of a firearm by a convicted felon. Appellant filed
a pre-trial motion to bifurcate the trial such that the felon
in possession count would not be tried until after the jury
returned a verdict on the "homicide phase"; he also
asked the trial court to accept a stipulation of his status
as a convicted felon and preclude the State from referring to
his past convictions or the felon in possession charge during
the first phase of trial. At a pre-trial hearing, however,
Appellant withdrew the request to bifurcate, although he
continued to insist that he be allowed to stipulate to his
status as a felon. Both the trial court and the State
indicated a preference for a bifurcated trial, but the trial
court ultimately agreed to try all counts together. The jury
was told that the parties stipulated that Appellant
previously had been convicted of a felony.
at a hearing on Appellant's motion for new trial about
the withdrawal of Appellant's request for bifurcation,
trial counsel acknowledged that he did not want the jury to
hear about the prior felony and that the Court would have
bifurcated the trial had he insisted on it. But trial counsel
testified that he had concluded that bifurcation was not
required and that trying all counts together was the best
strategy. Trial counsel indicated that he viewed the
State's case as flawed, recalling that two surviving
victims identified the shooter as Joseph Jackson, who was the
only person who named Appellant as the shooter. "I
thought if we were going to win it, we were going to win it
on - on the first time," trial counsel testified.
"Beyond that, we were talking about having to win two
prevail on his ineffectiveness claim, Appellant "must
show that trial counsel's performance fell below a
reasonable standard of conduct and that there existed a
reasonable probability that the outcome of the case would
have been different had it not been for counsel's
deficient performance." Scott v. State, 290 Ga.
883, 889 (7) (725 S.E.2d 305) (2012) (citing Strickland
v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d
674) (1984)). Where a convicted defendant fails to meet his
burden of establishing one prong of the Strickland
test, we need not review the other, as a failure to meet
either of the prongs is fatal to an ineffectiveness claim.
See Lawrence v. State, 286 Ga. 533, 533-534 (2) (690
S.E.2d 801) (2010). A party seeking to prove deficient
performance "must show that his trial counsel acted or
failed to act in an objectively unreasonable way, considering
all of the circumstances and in light of prevailing
professional norms." Muckle v. State, 302 Ga.
675, 680 (2) (808 S.E.2d 713) (2017) (citation omitted).
"There is a strong presumption that trial counsel's
conduct falls within the range of sound trial strategy and
reasonable professional judgment." Newkirk v.
State, 290 Ga. 581, 582 (2) (722 S.E.2d 760) (2012).
"We accept the trial court's factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts."
Robinson v. State, 277 Ga. 75, 76 (586 S.E.2d 313)
(2003) (citation and punctuation omitted).
whether bifurcation were even available, see Jones v.
State, 265 Ga. 138, 139-141 (2) (454 S.E.2d 482) (1995),
we cannot say that Appellant has overcome the strong
presumption that trial counsel's decision to withdraw the
request for bifurcation was within the range of sound trial
strategy and reasonable professional judgment. We reach this
conclusion in the light of trial counsel's stated reasons
for trying all counts together - that he assessed the
State's evidence as weak, and he did not want to give the
prosecution multiple opportunities to persuade the jury to
convict Appellant of something. See Harris v. State,
234 Ga.App. 126, 129 (3) (505 S.E.2d 49) (1998) (no
ineffectiveness in failing to move for bifurcation of felon
in possession count where strategy was to seek acquittal on
aggravated assault count; "[t]rial counsel's
decision not to move for a bifurcated trial was not the
result of inadequate preparation but the result of his choice
of trial tactics" based on conversations with client).
Appellant also argues that the trial court erred in denying
him a new trial based on his claim of newly discovered
evidence. Again, we disagree.
claims that he is entitled to a new trial due to the
discovery of a new witness, Brandon McGlotha. McGlotha
testified at a hearing on the motion for new trial that on
the night of the shooting, Joseph Jackson and McCain
approached him in front of Johnson's house, asking for a
cigarette. He testified that he then saw Joseph Jackson and
McCain enter the house, heard gunshots about five minutes
later, then saw two men wearing the same clothes that Joseph
Jackson and McCain had been wearing "running after"
Johnson. McGlotha testified that he did not see Appellant at
Johnson's house that night. Appellant testified at the
hearing that, although he had known McGlotha for more than a
decade, he did not realize McGlotha had been at the scene of