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Scott v. State

Supreme Court of Georgia

August 5, 2019

SCOTT
v.
THE STATE.

          ELLINGTON, JUSTICE.

         Jeremy 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.[1] 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.

         Viewed 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.

         When 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 left.

         Ashley 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.

         Arianna 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.

         In a 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.

         1. 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)).

         2. 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.[2] 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 review.

         To 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).

         When 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).

         3. 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 analysis:

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 ...

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