Scott was convicted of felony murder, aggravated assault,
possession of a firearm during the commission of a felony,
and criminal use of a firearm with an altered identification
mark in connection with the death of Romondo
Ashley. Scott contends that his trial counsel was
ineffective and that the trial court erred by giving the jury
an incomplete and misleading charge on accident. Finding no
reversible error, we affirm.
in the light most favorable to the verdicts, the record shows
the following. On December 20, 2014, Ashley was visiting his
girlfriend, Arianna Kearse, and their daughter at
Arianna's house. Arianna's sister, Dionna Kearse, and
others were also present. Around 1:00 a.m., Ashley woke
Arianna and told her that her ex-boyfriend, Scott, was
outside her house in his brother's truck. Arianna had
dated Scott briefly after being in a relationship with
Ashley, but she and Scott broke up in November. Thereafter,
she resumed her relationship with Ashley.
Arianna heard that Scott was outside, she woke her sister.
The two women went outside to ensure that there was no
friction between Scott and Ashley, given that Ashley had gone
onto the front porch to wait for a ride home from a friend.
As Arianna and Dionna tried to convince Ashley to come back
inside, Scott walked toward the porch. The sisters told Scott
to leave, but Scott started cursing, asking Arianna if she
was having sex with Ashley. Angered, Ashley swung his fist at
Scott, but missed. The sisters pulled Ashley away by his
arms, attempting to get him back inside. Scott followed,
pulled a gun from behind him, and shot Ashley twice in the
head. Scott then walked back to his brother's car and
collapsed onto the porch, bleeding profusely and shouting his
daughter's name. Neighbors called the police while
Arianna and Dionna tried to comfort Ashley until help
arrived. Ashley later died at the hospital. One bullet
entered his cheek and exited through the back part of his
ear; another entered his forehead and passed through his
brain before lodging in his skull.
and Dionna told the responding officers what had happened and
both identified Scott as the shooter. The sisters also later
identified Scott from a photographic lineup. Arianna took the
police to Scott's home and showed them the truck that he
had driven to her house. While Arianna was aiding the police
with the investigation, Scott called her and asked her if she
had "told on him." Officers secured search warrants
for Scott's property. During their search, the officers
found a revolver hidden under a shed. The weapon contained
three empty shell casings and part of its serial number had
been filed away. A ballistics expert determined that the
bullet the medical examiner had removed from Ashley's
skull had been fired from the revolver. The weapon was
functional and it took about ten-and-a-half pounds of
pressure to pull the trigger. The expert testified that it is
"highly unlikely" that the revolver would have
fired absent pressure on the trigger.
recorded interview, Scott told the police that he felt
threatened by Ashley. He claimed that he took the gun from
his pocket, pointed it at Ashley, and then, using the
revolver as a blunt instrument, struck Ashley on the head
with it in self-defense. He claimed that the gun accidentally
discharged during the altercation.
Scott does not dispute the legal sufficiency of the evidence
supporting his convictions. Nevertheless, as is this
Court's practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most
favorable to the verdicts, the evidence presented at trial
and summarized above was sufficient to authorize a rational
jury to find Scott guilty beyond a reasonable doubt of the
crimes of which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979). See also Vega v. State, 285 Ga.
32, 33 (1) (673 S.E.2d 223) (2009) ("It was for the jury
to determine the credibility of the witnesses and to resolve
any conflicts or inconsistencies in the evidence."
(citation and punctuation omitted)).
During closing argument, the prosecutor argued that the jury
could infer malice from Scott's decision to leave the
scene of the shooting without calling the police, rendering
aid, or giving any explanation for what he had
done. Scott contends that the prosecutor's
argument improperly commented on his pre-arrest silence in
violation of this Court's holding in Mallory v.
State, 261 Ga. 625, 629-630 (5) (409 S.E.2d 839) (1991),
and that, therefore, his trial counsel was ineffective for
failing to object and preserve the error for appellate
prevail on an ineffective assistance of counsel claim, a
defendant must show that his counsel's performance was
professionally deficient and that such deficient performance
resulted in prejudice to the defendant. Strickland v.
Washington, 466 U.S. 668, 687-695 (III) (104 S.Ct. 2052,
80 L.Ed.2d 674) (1984); Wesley v. State, 286 Ga.
355, 356 (3) (689 S.E.2d 280) (2010). To satisfy the first
prong, deficient performance, a defendant must show that his
attorney "performed at trial in an objectively
unreasonable way considering all the circumstances and in the
light of prevailing professional norms." (Citations
omitted.) Romer v. State, 293 Ga. 339, 344
(3) (745 S.E.2d 637) (2013); see also Strickland,
466 U.S. at 687-688 (III) (A). This requires a defendant to
"overcome the strong presumption that counsel's
performance fell within a wide range of reasonable
professional conduct, and that counsel's decisions were
made in the exercise of reasonable professional
judgment." (Citations and punctuation omitted.)
Simmons v. State, 299 Ga. 370, 375 (3) (788 S.E.2d
494) (2016). To satisfy the second prong, prejudice, the
defendant must establish a reasonable probability that, in
the absence of counsel's deficient performance, the
result of the trial would have been different.
Strickland, 466 U.S. at 694 (II) (B). "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
"If an appellant fails to meet his or her burden of
proving either prong of the Strickland test, the
reviewing court does not have to examine the other
prong." (Citations omitted.) Lawrence v. State,
286 Ga. 533, 533-534 (2) (690 S.E.2d 801) (2010).
Scott was tried in 2015, the new Evidence Code was in effect.
At that time, whether the Mallory rule had been
abrogated by the new Evidence Code was unsettled and subject
to dispute. See Eller v. State, 303 Ga. 373, 384
(IV) (E) (811 S.E.2d 299) (2018) ("We have specifically
declined thus far to decide whether Mallory applies
in trials after January 2013." (citations omitted)).
Shortly after Scott's appeal was docketed, however, this
Court expressly held that "Mallory's
categorical, bright-line rule excluding all comment upon a
defendant's silence or failure to come forward as far
more prejudicial than probative . . . was abrogated by the
new Evidence Code." (Citation, footnote, and punctuation
omitted.) State v. Orr, 305 Ga. 729, 739 (3) (827
S.E.2d 892) (2019). "Now that we have squarely held that
Mallory was abrogated by Georgia's new Evidence
Code, it is clear that a defendant cannot prevail on a claim
of ineffectiveness on the basis that his trial counsel failed
to rely on a case that was not applicable to his trial."
Jackson v. State, Case No. S19A0231, ____ Ga. ____
(5) (a) (___ S.E.2d ___) Ga. LEXIS 443 *14-15, 2019 WL
2570973 (June 24, 2019).
Scott contends the trial court erred by giving the jury
incomplete and misleading instructions on his defense of
accident. He argues that the trial court should have
instructed the jury that accident was a legal defense to
aggravated assault, the felony upon which his felony murder
and firearm possession counts were based. Further, he argues
that the trial court should have informed the jury that if
the jury found the defense of accident to be applicable to
the underlying felony of aggravated assault, the jury's
verdict should be not guilty on the charges premised on this
predicate felony. Because Scott did not object on this ground
before the jury retired to deliberate, his claim may be
reviewed on appeal for "plain error" only. OCGA
§ 17-8-58 (b). Plain error review has a four-part
First, there must be an error or defect - some sort of
deviation from a legal rule - that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the
appellant. Second, the legal error must be clear or obvious,
rather than subject to reasonable dispute. Third, the error
must have affected the appellant's substantial rights,
which in the ordinary case means he must demonstrate that it
affected the outcome of the trial court proceedings. Fourth
and finally, if the above three prongs are satisfied, the
appellate court has the discretion to remedy the error -
discretion which ought to be exercised only if the error