Spell v. State

FINAL COPY

                  S19A0066. SPELL v. THE STATE.


      BLACKWELL, Justice.

      Appellant James Ralph Spell was tried and convicted of two

murders, an aggravated battery, an aggravated assault, and two

firearm offenses, all in connection with the fatal stabbing of his ex-

wife and the fatal shootings of her parents. On appeal, he claims

that he was denied the effective assistance of counsel at trial. We

find no merit in this claim, but we note that the trial court erred

when it failed to merge the aggravated battery and aggravated

assault with one of the murders of which Appellant was convicted.

Accordingly, we vacate the convictions for aggravated battery and

aggravated assault, and we otherwise affirm.1



      1 Appellant committed his crimes in July 2007. A Wayne County grand

jury indicted Appellant in November 2007, charging him with the murder of
Amanda Harrison Spell, the murder of Jeaney Harrison, the murder of Gary
Harrison, an aggravated battery upon Ms. Harrison, an aggravated assault
upon Ms. Harrison, cruelty to children, the unlawful possession of a firearm
during the commission of a felony, and the unlawful possession of a firearm by
      1. Appellant and Amanda Harrison Spell married in 2004 and

divorced in 2005. Even after their divorce, they sometimes would get

together, and on the evening of July 30, 2007, Amanda visited

Appellant at his home. Early the next morning, Appellant went to

the Wayne County home that Amanda shared with her parents,

Gary and Jeaney Harrison. Appellant confronted Amanda and

accused her of having stolen $150 from his wallet. They argued, and

at some point, Amanda drew a .22-caliber revolver. Appellant

disarmed her, and he then fired a round into the sofa on which she

was seated.



a convicted felon. The prosecution gave notice of its intent to seek the death
penalty, and the trial court moved venue to Glynn County for purposes of trial.
In January 2012, Appellant was tried by a Glynn County jury. The trial court
acquitted him by directed verdict of the murder of Mr. Harrison and of cruelty
to children, and the jury found him guilty on all the remaining charges. After
a sentencing trial, the jury declined to impose the death penalty. The trial court
sentenced Appellant to consecutive terms of imprisonment for life without the
possibility of parole for the murders of Amanda and Ms. Harrison, consecutive
terms of imprisonment for twenty years for the aggravated battery and
aggravated assault, and consecutive terms of imprisonment for five years for
each of the firearm offenses. Appellant timely filed a motion for new trial,
which he amended in August 2015. The trial court denied the motion for new
trial in October 2017, and Appellant timely filed a notice of appeal. His appeal
was docketed in this Court for the term beginning in December 2018 and
submitted for decision on the briefs.
     Having heard a gunshot, Mr. Harrison then emerged from a

bedroom, carrying a 12-gauge shotgun. He fired or attempted to fire

the shotgun at Appellant, but Appellant was not wounded in either

event. At that point, Appellant fatally shot Mr. Harrison with the

revolver and retrieved the shotgun. As Ms. Harrison ran from the

house, Appellant shot her in the back with the shotgun.2 Appellant

then grabbed a knife from the kitchen and found Amanda in a

bedroom to which she had retreated. He said to her: “See what you

made me do? All you had to do was give me my motherf***ing sh*t.”

He then fatally stabbed Amanda.

     Appellant left the scene, and he was apprehended the next day

as he was preparing to flee to Mexico. At the time of his

apprehension, Appellant urged the arresting officers to shoot him.

Following his arrest, Appellant confessed that he had shot the

Harrisons and that — just before he “ripped [Amanda] open” with

the knife — he told her that “all this could’ve been avoided” if she



     2 Ms. Harrison was wounded but escaped to the home of a neighbor. Her

wounds, however, proved fatal, and she died four days later.
had returned his money.

      (a) Appellant does not dispute that the evidence is legally

sufficient to sustain his convictions, but consistent with our usual

practice in murder cases, we nevertheless have reviewed the

evidence and considered its sufficiency. Viewed in the light most

favorable to the verdict, we conclude that the evidence adduced at

trial is sufficient to authorize a rational trier of fact to find Appellant

guilty of the crimes of which he was convicted. See Jackson v.

Virginia, 

 (III) (B) (

, 61 LE2d 560)

(1979).

     (b) Appellant does not raise any merger error, but we have

discretion to correct merger errors on direct appeal, see Nazario v.

State, 

 (2) (b) (

) (2013), and here,

we note that the trial court erred when it failed to merge the

aggravated battery of Ms. Harrison and the aggravated assault upon

Ms. Harrison with her murder. The murder, aggravated battery,

and aggravated assault all are based upon the same act — Appellant

shooting Ms. Harrison in the back with a shotgun. Accordingly, we
vacate the convictions for aggravated battery and aggravated

assault. See Sullivan v. State, 

 (3) (

)

(2017).

      2. Appellant claims that he was denied the effective assistance

of counsel when his lawyers failed to object to evidence that was, he

says, inadmissible under Mallory v. State, 

 (

) (1991), and when they failed to object to the prosecuting

attorney referencing the same evidence in his closing argument. In

Mallory, this Court announced as a categorical rule that evidence

that an accused failed to come forward to law enforcement prior to

his arrest is “far more prejudicial than probative” and is, therefore,

inadmissible. 

 (5).3 In this case, the prosecution

presented evidence that, after shooting the Harrisons and stabbing

Amanda, Appellant went to the home of his best friend, Derrick

Jones, and subsequently spoke again with Jones by telephone. Jones



      3 Mallory was decided under our old Evidence Code, and this case was

tried under the old Evidence Code. We note, however, our recent decision in
State v. Orr, 

 (2) (

) (2019), in which we held that
the Mallory rule was abrogated by the adoption of our new Evidence Code.
testified that, on both occasions, he urged Appellant to go to the

police. Appellant responded that he “couldn’t” go to the police, Jones

said, because he was scared. The prosecuting attorney briefly

referred to this evidence in closing argument:

     [Appellant] is a man who [has] been told several times to
     turn himself in, but he’s going to Mexico. I’m sorry, is that
     what a guilty man does? Of course. Is that what someone
     who’s innocent, who has no — who has — I was just
     defending myself. I need to go talk to the police. No. You
     don’t flee to Mexico if you’ve done nothing wrong.

Appellant’s lawyers objected to neither the evidence nor the

argument.

     To prevail on a claim of ineffective assistance, Appellant must

prove both that the performance of his lawyers was deficient and

that he was prejudiced by this deficient performance. See Strickland

v. Washington, 

 (III) (

, 80 LE2d 674)

(1984). To prove that the performance of his lawyers was deficient,

Appellant must show that his lawyers performed their duties at trial

in   an   objectively   unreasonable    way,   considering    all    the

circumstances and in the light of prevailing professional norms. See


 (III) (A). See also Kimmelman v. Morrison, 

 (II) (C) (

, 91 LE2d 305) (1986). And to prove

that he was prejudiced by the performance of his lawyers, Appellant

must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 

(III) (B). This burden is a heavy one, see Kimmelman, 

 (II) (C), and Appellant has failed to carry it.

     By the time Jones testified, the prosecution already had

presented overwhelming evidence that Appellant had killed

Amanda and both of her parents and that the killings of Amanda

and her mother were unlawful homicides. Although the evidence

presented by the prosecution to that point suggested that Appellant

may have been justified in killing Mr. Harrison, the evidence made

out a strong case that he was not justified in killing Amanda or Ms.

Harrison. By that point, his lawyers had become convinced that he

likely would be found guilty of unlawfully killing Amanda and her
mother — either as murder or voluntary manslaughter — and to the

extent that he was found guilty of one or more murders, his lawyers

were worried about the death penalty.

     The testimony by Jones about which Appellant now complains

— that Jones urged Appellant to go to the police but Appellant said

he “couldn’t” because he was scared — added little to the

prosecution’s strong case. To the extent that this testimony

suggested consciousness of guilt, it did so no more strongly than

evidence that Appellant was preparing to flee to Mexico when he

was apprehended and that he urged the arresting officers to shoot

him. For these reasons, the testimony had a limited downside for

Appellant. Moreover, there was a potential upside to Jones’s

testimony. As one of the lawyers explained at the hearing on the

motion for new trial, Jones’s emotional testimony about his best

friend — which linked Appellant’s failure to go to the police with his

statements that he was scared — was “very powerful” and would

tend to humanize Appellant in the eyes of the jury. Humanizing

Appellant would be especially important, of course, to lawyers like
Appellant’s, who had reasonably become concerned about the

possibility of the death penalty.4

      Considering all of the circumstances with which Appellant’s

lawyers were presented when Jones gave the testimony about which

Appellant now complains — the limited downside of that testimony,

its potential upside, the other strong evidence against Appellant,

and the looming threat of a sentencing trial and possible death

sentence — it was not unreasonable for the lawyers to forgo an

objection to Jones’s testimony. See Marshall v. State, 

 (2) (a) (

) (2016). Moreover, in light of the other

strong evidence against Appellant, we see no reasonable probability

that an objection to this evidence would have produced a different

and more favorable outcome for Appellant. See Blaine v. State, 

 (4) (

) (2019) (“[T]rial counsel cannot be

ineffective for failing to raise claims that would not have . . . made

any difference in the outcome of [the defendant’s] case.”). Appellant



      4 We note that Appellant’s lawyers were at least partially successful; the

jury ultimately declined to impose the death penalty.
has failed to prove that he was denied the effective assistance of

counsel when his lawyers failed to object under Mallory.

     Appellant likewise has failed to establish that his lawyers

rendered ineffective assistance when they failed to object to the

prosecuting attorney referencing Jones’s testimony in his closing

argument. In the first place, Appellant having strategically forgone

an objection to the testimony itself, that testimony — even if it might

have been objectionable under Mallory when offered5 — was

properly in evidence by the time of closing argument. See Sanders

v. State, 

 (4) (

) (2012). Moreover,

the reference in closing argument was brief, and it was commingled

with references to the evidence that Appellant was preparing to flee

to Mexico, which separately and at least as strongly suggested a

consciousness of guilt. Especially in light of the other strong

evidence against Appellant, there is no reasonable probability that

an objection to the closing argument of the prosecuting attorney


     5 The State has not asked us in this case to reconsider “whether Mallory’s

exclusionary rule should continue to be applied to cases governed by the old
Evidence Code.” Orr, 

 (2) n.6.
would have produced a different outcome for Appellant. See Blaine,

 (4).

     Judgment affirmed in part and vacated in part. All the Justices

concur.




                      Decided May 20, 2019.

     Murder. Glynn Superior Court. Before Judge Scarlett.

     Betsey L. Tate, Katherine L. Dodd, for appellant.

     Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou,

Thomas E. Buscemi, Assistant District Attorneys; Christopher M.

Carr, Attorney General, Patricia B. Attaway Burton, Deputy

Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Katherine D. Emerson, Assistant Attorney General, for

appellee.