Jackson v. State

FINAL COPY

                 S19A0861. JACKSON v. THE STATE.


      MELTON, Chief Justice.

      Following a jury trial, David Jackson was found guilty of

malice murder, aggravated assault, and various other offenses in

connection with the stabbing death of John Norman Thomas.1 On

appeal, Jackson contends that the trial court committed plain error

by giving an incorrect jury instruction on self-defense, that the trial

court erred in its recharge to the jury on voluntary manslaughter,


      1 On January 28, 2016, Jackson was indicted for malice murder, felony

murder predicated on aggravated assault, aggravated assault, and possession
of a knife during the commission of a felony. Following an October 3-4, 2016
jury trial, Jackson was found guilty on all counts. On October 4, 2015, the trial
court sentenced Jackson to life in prison for malice murder and five consecutive
years for possession of a knife during the commission of a felony. The felony
murder count was vacated by operation of law, Malcolm v. State, 

(4) (

) (1993), and the remaining aggravated assault count was
merged into the malice murder count for sentencing purposes. Jackson filed a
motion for out-of-time appeal on August 21, 2017, which was granted on
November 15, 2017. He then filed a motion for new trial with new counsel on
December 4, 2017, which he amended on January 23, 2018. Following an April
24, 2018 hearing, the trial court denied the motion on December 6, 2018.
Jackson filed a timely notice of appeal on December 17, 2018, and his appeal
was docketed to the April 2019 term of this Court and submitted for a decision
on the briefs.
and that his trial counsel was ineffective. For the reasons that

follow, we affirm.

     1. Viewed in the light most favorable to the jury’s verdict, the

evidence presented at trial reveals that, on December 24, 2013,

Jackson stabbed Thomas multiple times with a steak knife while he

was with Thomas in the yard of a home in Warren County. A

neighbor who was across the street from the stabbing saw Jackson,

who seemed to be on his knees, moving his arm in a stabbing motion

toward the ground. The witness then saw Jackson kick Thomas

three or four times while Thomas was on the ground. The witness

observed Jackson throw something in the bushes and then return to

kick Thomas again. Jackson walked away from Thomas, leaving him

dying in the yard. The neighbor called Jackson’s girlfriend, Eula

Evans, and told her to come and get Jackson. The neighbor then

called 911, and she crossed the street, finding Thomas bleeding

heavily in the yard.

     An officer who responded to the scene attempted to

communicate with Thomas, who was still alive at the time, but

                                 2
Thomas was unable to speak. Thomas had suffered at least forty-

seven sharp force injuries, including ten stab wounds to his head

and neck and five stab wounds to his torso. Thomas died from the

stab wounds to his neck and torso.

     Police found a black-handled steak knife with blood on it in the

dirt driveway outside of the house where the stabbing had taken

place, and no weapons were found on Thomas. Police also discovered

drops of blood leading away from the scene and along the route that

Jackson had walked after the stabbing. DNA testing later revealed

that the blood drops leading away from the scene belonged to

Jackson, and that two sets of blood profiles were present on the

knife. The major blood profile on the sharp tip of the knife and the

hilt of the knife where the blade joins the handle belonged to

Thomas, and the only place on the knife where the major blood

profile belonged to Jackson was on the handle.

     Police saw Jackson at the same hospital where Thomas had

been taken after the stabbing, as Jackson was there to be treated for

a laceration to the side of his face, a small wound to his abdomen,

                                 3
and some abrasions to his head. Jackson later claimed in an

interview with police that Thomas had attacked and stabbed him,

and that Jackson took the knife away from Thomas before stabbing

him two or three times. Jackson also claimed in his statement that

Thomas was still trying to fight him after Jackson had stabbed

Thomas to defend himself and had walked away from Thomas.

     Although Jackson has not challenged the sufficiency of the

evidence in this case, it is our customary practice to review the

sufficiency of the evidence in murder cases. See, e.g., Wainwright v.

State, 

 (1) (

) (2019). Having done so, we

conclude that the evidence presented at trial was sufficient to

authorize a rational jury to reject Jackson’s claim of self-defense and

find him guilty beyond a reasonable doubt of the crimes for which he

was convicted. See Jackson v. Virginia, 

 (

,

61 LE2d 560) (1979); Cotton v. State, 

 (1) (

) (2015) (despite defendant’s claim of self-defense, jury is “free to

accept the evidence that [a] stabbing was not done in self-defense

and to reject any evidence in support of a justification defense”)

                                   4
(citation and punctuation omitted).

      2. Jackson contends that the trial court committed plain error2

by giving a pattern jury instruction on self-defense that included

language stating that the defendant must not have acted “in the

spirit of revenge” at the time that he was defending himself in order

to properly claim self-defense. Compare Code of 1933, § 26-1012

(stating that party asserting justification defense must have “acted

under the influence of [the] fears [of a reasonable man], and not in

a spirit of revenge”) with OCGA § 16-3-21 (containing no “spirit of

revenge” language and stating that “a person is justified in using

force which is intended or likely to cause death or great bodily harm

only if he or she reasonably believes that such force is necessary to

prevent death or great bodily injury to himself or herself or a third

person or to prevent the commission of a forcible felony”).3



      2 Because Jackson did not object to this jury charge at trial, our review

of this issue is limited to an analysis for plain error. See OCGA § 17-8-58 (b);
Clark v. State, 

 (2) (

) (2016).

      3 As we explained in Pena v. State, 

 (6) (b) n.5 (

) (2015):

                                       5
     In order to satisfy the test for plain error,

     [f]irst, 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 seriously affects the
     fairness, integrity, or public reputation of judicial
     proceedings.

(Citation and punctuation omitted; emphasis in original.) State v.

Kelly, 

 (2) (a) (

) (2011).

     “[A] jury instruction must be adjusted to the evidence and

embody a correct, applicable, and complete statement of law.”

(Citation and punctuation omitted.) Roper v. State, 

, 880



     In 1968, when the statutes setting forth defenses to criminal
     liability were rewritten as a part of an act to provide a new Georgia
     Criminal Code, the “spirit of revenge” language [in section 26-1012
     of the Code of 1933] was omitted from the provisions defining
     justification. See Ga. L. 1968, pp. 1249, 1272-1274, enacting
     Chapter 26-9, “Defenses to Criminal Liability,” composed of Code
     Ann. §§ 26-901 through 26-907; Code Ann. § 26-902. The current
     version of the statute [OCGA § 16-3-21] also omits this language.
                                      6
(2) (

) (2007). Here, there was no error in giving the jury

charge in question, as this Court has previously determined that,

despite the fact OCGA § 16-3-21 does not contain language

indicating that a defendant must show that he or she did not act in

the spirit of revenge in order to assert self-defense,

     when comparing the current language of OCGA § 16-3-21
     with the previous statute that included the “spirit of
     revenge” language . . . “[i]n essence the old law and the
     new law have the same standard as to justification of
     homicide.” Brooks v. State, 

 (3) (

) (1971). Therefore, the instruction at issue [that
     included the “spirit of revenge” language] is [still] a
     correct statement of the law.

Pena v. State, 

 (6) (b) (

) (2015).

Because the trial court did not clearly err by giving the self-defense

charge in question, Jackson does not carry his burden of showing

plain error.

     3. Jackson also claims that the trial court plainly erred in its

recharge to the jury on voluntary manslaughter. Jackson is

incorrect.

     The record reveals that, during its deliberations, the jury sent


                                   7
a note to the trial court asking for clarification on the difference

between “involuntary manslaughter” and malice murder. However,

because involuntary manslaughter was not at issue in the case, the

court asked the jury foreperson if the jury intended to ask about

voluntary manslaughter rather than involuntary manslaughter.

The following colloquy then took place:

     JURY FOREPERSON: Voluntary, I’m sorry. Yes, sir,
     voluntary.
     COURT: Okay.
     JURY FOREPERSON: But if I might, Judge, when you
     were charging us and telling us the law you mentioned
     voluntary manslaughter, and I heard you say the word
     revenge at that time, and none of us completely
     understood that. We should have asked you at that time,
     but —
     COURT: Okay. That’s all right. I just —
     JURY FOREPERSON: I’m sorry, I just want the
     voluntary manslaughter.
     COURT: So your question is voluntary, then?
     JURY FOREPERSON: I’m sorry, yes.

     The trial court then recharged the jury on both malice murder

and voluntary manslaughter. After doing so, the following exchange

occurred between the court and the jury foreperson:

     COURT: Does that answer your question?
     JURY FOREPERSON: Yes, sir.

                                 8
     Defense counsel did not object to the manner in which the trial

court recharged the jury, even when the trial court asked if he had

any objection, but Jackson now contends on appeal that the recharge

was insufficient to address any specific confusion that the jury may

have had about the trial court saying the word “revenge” at some

point during its initial charge. However, as noted in the colloquy

above, the record supports the conclusion that the recharge did in

fact clear up any confusion that the jurors may have had, as

indicated by the jury foreperson informing the court that the jury

“just want[ed] the voluntary manslaughter” charge again and that

the recharge actually given answered the jury’s question. We see no

abuse of discretion in the trial court’s decision to recharge the jury

in full on malice murder and voluntary manslaughter in response to

the jury’s question. See Salahuddin v. State, 

(4) (

) (2004) (“Where the jury requests further

instructions upon a particular phase of the case, the court in [its]

discretion may recharge them in full, or only upon the point or points


                                  9
requested.”)   (citation,   punctuation    and    emphasis     omitted).

Accordingly, Jackson does not show any error, let alone plain error,

from the recharge given.

     4. Jackson asserts that his trial counsel was ineffective for (a)

failing to object to the trial court’s jury charge on self-defense, (b)

failing to call Jackson or his girlfriend, Evans, to testify on Jackson’s

behalf at trial, (c) failing to present evidence of Jackson’s fear of

Thomas, and (d) failing to present evidence of Thomas’s reputation

in the community. We disagree.

     In order to succeed on his claim of ineffective assistance,
     [Jackson] must prove both that his trial counsel’s
     performance was deficient and that there is a reasonable
     probability that the trial result would have been different
     if not for the deficient performance. Strickland v.
     Washington, 

 (

, 80 LE2d 674)
     (1984). 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. 

     (IV); Fuller v. State, 

 (3) (

)
     (2004). In reviewing the trial court’s decision, “‘[w]e
     accept the trial court’s factual findings and credibility
     determinations unless clearly erroneous, but we
     independently apply the legal principles to the facts.’
     [Cit.]” Robinson v. State, 

 (

)
     (2003).


                                   10
Wright v. State, 

 (2) (

) (2012).

     (a) For the reasons stated in Division 2, supra, an objection to

the trial court’s charge on self-defense would have been meritless.

Accordingly, trial counsel’s failure to make such an objection does

not amount to ineffective assistance. Hayes v. State, 

 (3) (c) (

) (1993) (“Failure to make a meritless

objection cannot be evidence of ineffective assistance.”).

     (b) Trial counsel testified at the motion for new trial hearing

that he spoke to Evans and Jackson several times before trial and

that he also reviewed Evans’s statement to police. Having done so,

trial counsel discovered that Evans did not witness the altercation

between Jackson and Thomas and that she only went to meet

Jackson after he was leaving the scene of the stabbing in order to

take him to the hospital. Accordingly, trial counsel concluded that

Evans’s testimony would not have added anything particularly

useful to the case, and he made a strategic decision not to call her as

a witness.

     [T]rial counsel’s decision as to which defense witnesses to call

                                  11
     is a matter of trial strategy and tactics, and tactical errors in
     that regard will not constitute ineffective assistance of counsel
     unless those errors are unreasonable ones no competent
     attorney would have made under similar circumstances.

(Citation and punctuation omitted.) Cato v. State, 

(3) (

) (2018). Here, trial counsel came to the reasonable

conclusion that Evans’s testimony would not have advanced

Jackson’s theory of self-defense, and Jackson has not shown that

counsel’s performance in failing to call her as a witness was

deficient.

     Jackson also claims that his trial counsel was ineffective for

failing to call Jackson to testify in support of his claim of self-

defense. However, the record reveals that Jackson’s theory of self-

defense was already presented to the jury in the form of his

statement to police in which he claimed that he was defending

himself from Thomas’s attack at the time that he stabbed him. Thus,

Jackson’s testimony was not needed to establish self-defense.

     To the extent that Jackson claims that his trial counsel

somehow inadequately presented his self-defense claim by failing to


                                 12
present Jackson’s own testimony, trial counsel testified at the

motion for new trial hearing about the inconsistencies and problems

that Jackson’s testimony could have created if presented at trial.

Specifically, in light of the DNA evidence showing only blood profiles

from Thomas and Jackson on the knife used in the stabbing,

Jackson’s counsel believed that any testimony from Jackson

implying that a third party must have stabbed and killed Thomas

after Jackson had only stabbed the victim “two or three times” in

self-defense and then walked away would not have come across as

credible. Accordingly, Jackson has not shown “that the failure to call

him as a witness was indicative of ineffectiveness as opposed to a

deliberate and reasonable trial strategy.” Gibson v. State, 

 (6) (b) (

) (2011).

     In any event, trial counsel left the ultimate decision to testify

up to Jackson, and Jackson himself made an informed decision not

to testify after consulting with trial counsel at the close of the State’s

case at trial. Because Jackson was fully informed of his right to

testify, it cannot be said in this case that his failure to testify on his

                                    13
own behalf was in any way connected to any alleged deficiency of his

trial counsel. See 

 (6) (b). See also, e.g.,

Lupoe v. State, 

 (3) (c) (

) (2008).

     (c) With respect to counsel’s failure to present evidence of

Jackson’s alleged fear of Thomas, trial counsel testified at the

motion for new trial hearing that Jackson never informed him that

he harbored any sort of fear of Thomas before he was allegedly

attacked, and counsel “cannot possibly have performed deficiently

by having failed to present [evidence] of which [Jackson] had never

made him aware.” (Citation omitted.) Lewis v. State, 

 (

) (2014). Also, as noted in Division 4 (b), supra,

Jackson chose not to testify when he had the opportunity to present

evidence of his alleged fears through his own testimony.

     (d) Similarly, when asked if he had been told anything about

Thomas’s reputation in the community, trial counsel testified at the

motion for new trial hearing that he had not. Trial counsel went on

to testify that he was given the impression by Jackson and Evans

that they “didn’t really know [Thomas] personally . . . [and] just kind

                                  14
of knew [Thomas] when they saw him and spoke.” Accordingly, trial

counsel had no basis to pursue and attempt to introduce at trial

evidence relating to Thomas’s alleged reputation, and Jackson has

failed to meet his burden of showing deficient performance. See

.

     5. Jackson also urges, in a separate enumeration, that the trial

court erred in denying his motion for a new trial in light of all of the

same alleged errors that he raises, and that we have rejected, in

Divisions 1-4, supra. Thus, “[n]othing is raised [in this separate

enumeration] that is not raised elsewhere in his brief, and this

enumeration is without merit.” Wade v. State, 

 (11)

(

) (1991).

     Judgment affirmed. All the Justices concur.

                      DECIDED AUGUST 5, 2019.

     Murder. Warren Superior Court. Before Judge Hinesley.
     Jane S. Dansie, for appellant.
     William P. Doupé, District Attorney; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Matthew M. Youn, Assistant Attorney General, for appellee.


                                  15