Howard v. State

FINAL COPY

                S19A0785. HOWARD v. THE STATE.


      BOGGS, Justice.

      Appellant Bahir Ramiz Howard was convicted of murder and

related crimes for the 2010 shooting death of Jerode Martez Paige.

He appeals, asserting error in several jury instructions and violation

of his constitutional right to be present during his trial. For the

reasons stated below, we affirm.1


      1 The crimes occurred on May 15, 2010. On August 12, 2011, a Spalding

County grand jury indicted Howard for malice murder, felony murder,
aggravated assault, criminal gang activity in the commission of murder,
discharge of a firearm near a public highway, carrying a deadly weapon to a
public gathering, and possession of a firearm during the commission of a crime.
Howard was tried before a jury on July 9 to 13, 2012, and found guilty of all
charges except that of criminal gang activity, as to which the jury found him
not guilty. The trial court sentenced Howard to serve life in prison for malice
murder, twelve months to serve concurrently with the malice murder count on
the first two firearms charges, and five years consecutive for possession of a
firearm during the commission of a crime; the remaining counts were vacated
by operation of law or merged. On July 26, 2012, Howard, acting pro se, filed a
motion for new trial. Thereafter current appellate counsel undertook
representation and filed several amended motions. After a hearing on
September 7, 2017, the trial court denied the motion on October 1, 2018.
Howard’s initial pro se motion was a nullity, however, because he was still
represented by counsel at the time of filing. Accordingly, this Court dismissed
Howard’s appeal, noting that Howard could seek an out-of-time appeal.
     1. Construed in the light most favorable to the jury’s verdicts,

the evidence showed that Paige a/k/a “Yung Hott” was filming a rap

video in Griffin. One of the sites was located on the east side of

Griffin, which witnesses testified is considered the territory of the

Crips gang, which uses the color blue as an identifying mark.

According to Leonard Taylor, the video producer and owner of

Paige’s record label, Paige was not a gang member, but his record

label had a red color theme. The color red is an identifying mark of

the Bloods gang, a rival of the Crips. During the filming, Taylor

noticed that various individuals wearing blue had suddenly

appeared on the scene, and Taylor expressed his concerns to Paige,

who told him “everything is cool” because he had made

arrangements to film there.2 Taylor still felt uncomfortable and

instructed the video crew to “shut it down” and resume filming on

the other side of town. Paige walked over to a nearby truck to tell



Permission to file an out-of-time appeal was granted by consent order on
December 26, 2018, and Howard filed a timely notice of appeal. The case was
docketed in this Court for the April 2019 term and was orally argued on May
7, 2019.
      2 Witnesses agreed that at least 200 people were on the scene.

                                    2
the owner where the filming would resume. Taylor saw Paige come

back, limping, and fall as Taylor heard gunshots. A man came

running after Paige, stood over him, and shot him in the head at

close range, killing him. Multiple gunshots were fired thereafter.3

Taylor identified Howard from a police photo lineup and in the

courtroom as the shooter.

     Willie Hollis, who was at the video shoot with Paige, had

walked with Paige to look for the truck’s owner. He testified that

Howard told Paige to “go and wrap it up. Get out from over there.”

Paige replied, “I’m on your side of town. What you want to do?”

Howard said nothing more but “[p]ulled out a gun and started

shooting.” At that point, no other shots had been fired, but when

Hollis heard more shots, he “took off running.” Hollis identified

Howard in a police photo lineup and in court as the shooter.

     Jaquonto Redding, Paige’s half-brother, testified that he was




     3  Police investigators on the scene found numerous spent shells of
various calibers, including steel Wolf brand shells in .40 Smith & Wesson
caliber and brass shells from 9mm and .45 Auto ammunition, as well as one
unfired .45 Auto round and three spent 12-gauge shotgun shells.
                                   3
standing some distance away when he saw Paige say something to

Howard and turn around. Howard then pulled out a gun and shot

Paige, who stumbled back and fell as Howard shot him again.

Howard walked up to Paige, stood over him, and appeared to be

trying to cock or clear his pistol. Redding then left the scene.

Redding identified Howard from a police photo lineup and in court

as the shooter. He testified that Howard shot first, and “then there

was a lot of shots fired.” Five individuals were struck, including

Paige and Howard.

     Octavius White, a close friend of Paige, testified that he saw

Howard and a group of men wearing blue bandannas speak with

Paige, and then Howard pulled out a gun and shot Paige. He

testified that Howard’s was the first shot fired on the scene. Paige

stumbled back and fell to the ground, “holding his hands up in the

air like if he was saying don’t shoot me, don’t shoot me.” Howard

walked up to Paige lying on the ground and “just pulled the trigger.”

White identified Howard in court as the shooter.

     The medical examiner testified that Paige suffered multiple

                                 4
gunshot wounds to his lower extremities, including a wound to his

right thigh that shattered the femur, which would have made it

difficult for him to walk or run, and probably would have caused him

to fall. Paige suffered a total of six gunshot wounds, including a

bullet that entered near his right temple, passed through the brain

and a portion of the brain stem, and lodged under the skin of his left

cheekbone. This wound was “immediately lethal” and caused

“instantaneous death.” Given testimony that Paige was moving after

he was shot, the medical examiner agreed that the gunshot wound

to his temple could not have been the first wound he suffered. The

bullet that lodged in Paige’s head was removed by the medical

examiner, and a firearms examiner identified it as a .40-caliber

bullet “consistent with being fired from a Smith & Wesson .40

pistol.”

     In addition, two other individuals picked Howard out of a photo

lineup as the man who shot Paige, four other individuals identified

Howard as one of the people firing a gun at the scene, and a gun



                                  5
shop owner testified that he sold Howard a Smith & Wesson .40-

caliber pistol and that his shop carried Wolf brand .40-caliber

ammunition. Howard told police that he did not know what

happened to his pistol, and it was never found.

     Although Howard has not challenged the sufficiency of the

evidence to support his convictions, as is this Court’s practice in

murder cases, we have reviewed the record to determine the legal

sufficiency of the evidence. We conclude that the evidence

summarized above was more than sufficient to enable a rational

trier of fact to conclude beyond a reasonable doubt that Howard was

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

Virginia, 

 (III) (

, 61 LE2d 560) (1979);

see also Strother v. State, 

 (2) (

) (2019)

(“It is the role of the jury to resolve conflicts in the evidence and to

determine the credibility of witnesses, and the resolution of such

conflicts adversely to the defendant does not render the evidence

insufficient.” (Citations and punctuation omitted.))

     2. In his first enumeration of error, Howard argues that the

                                   6
trial court erred in instructing the jury, after a juror was excused

and replaced with an alternate, with the following charge:

     COURT: Ladies and gentlemen, I have made the decision
     to excuse [Juror No. 22] from participation on the jury. So,
     ma’am, you will be excused shortly, and you will be free
     to go. [Juror No. 56], you will be taking her place on the
     jury. So you will go back into the jury room at this point.
     You all will need to kind of start fresh with your
     deliberations with [Juror No. 56] and get him caught up
     to speed. And sir, you catch them up to speed with your
     thoughts on this case also. Resume your deliberations at
     this time. With that, [Juror No. 22], do you have any
     personal items in the jury room?
     JUROR [No. 22]: (Nods head affirmatively.)
     COURT: Okay. You will be allowed to get those and then
     you will be free to go. And the rest of you, I will ask that
     you resume your deliberations with [Juror No. 56]. Thank
     you.

     As Howard acknowledges, he failed to object to this instruction

at the time it was given, and thus must demonstrate plain error:

that the error was not affirmatively waived; that it was obvious

beyond reasonable dispute; that it likely affected the outcome of the

proceedings; and that it seriously affected the fairness, integrity, or

public reputation of the proceedings. See OCGA § 17-8-58 (b); State

v. Kelly, 

 (1) (

) (2011). Howard has failed


                                  7
to meet this standard.

     Howard contends that the trial court’s instruction, by using the

terms “start fresh,” “get him caught up to speed,” “catch them up to

speed,” and “resume your deliberations,” failed sufficiently to

instruct the jury that it must begin its deliberations anew, thus

placing the alternate in the position of being coerced to comply with

the prior deliberations of the other jurors. This argument, however,

is foreclosed by this Court’s decision in Sharpe v. State, 

 (7) (

) (2011), in which a very similar instruction

was given to the jury, after the trial court told jurors “that it wanted

them to deliberate more on the case” after a juror was replaced with

an alternate. The trial court further instructed the jury:

          When I told you to start fresh today, that was
     because I wanted you to have a fresh start and also you
     need to bring [the alternate] on board, too, since she has
     joined you rather late in the game and you need to bring
     her up to speed by going over where you’ve been before.
     And I trust that you’ve done that.

 This Court held that “start[ing] deliberations anew . . . is exactly

what the trial court, in essence, did instruct the reconstituted jury


                                   8
to do by bringing [the alternate] ‘up to speed’ after making a ‘fresh

start.’” 

 (7). The remarkably similar language employed by

the trial court here likewise instructed the jury to begin its

deliberations anew, with the additional instruction that the

alternate “catch them up to speed with [his] thoughts on this case

also,” thus militating against the possibility of coercion urged by

Howard.4

      Relying almost exclusively upon decisions from a number of

federal courts of appeal and state courts, Howard contends that the

substitution of an alternate juror without a clear instruction that

the jury must start deliberating again from the very beginning had

an “inherently coercive effect” and deprived Howard of a fairly

constituted     jury.   But     this   argument       overlooks     important

distinctions between the law applicable in those cases and the law




      4 Howard’s assertion that the trial court’s initial charge to the alternate

jurors before deliberation began was erroneous because it included the term
“get caught up to speed on any negotiation[s] that have taken place” is likewise
without merit, given that the trial court in Sharpe instructed the jury to “bring
[the alternate] up to speed by going over where you’ve been before.”
(Punctuation omitted; emphasis supplied.) Sharpe, 

.
                                       9
of Georgia, particularly the fundamental difference between federal

and Georgia criminal procedure on this point.

     The replacement of an incapacitated juror is governed in

Georgia by OCGA § 15-12-172, which prescribes the method for

substituting an alternate juror “at any time, whether before or after

final submission of the case to the jury.”5 In stark contrast, before

1999, Rule 24 (c) of the Federal Rules of Criminal Procedure

provided, in relevant part: “An alternate juror who does not replace

a regular juror shall be discharged after the jury retires to consider

its verdict.”6 The federal cases cited by Howard were decided under


     5 OCGA § 15-12-172 provides in its entirety:

           If at any time, whether before or after final submission of the
     case to the jury, a juror dies, becomes ill, upon other good cause
     shown to the court is found to be unable to perform his duty, or is
     discharged for other legal cause, the first alternate juror shall take
     the place of the first juror becoming incapacitated. Further
     replacements shall be made in similar numerical sequence
     provided the alternate jurors have not been discharged. An
     alternate juror taking the place of any incapacitated juror shall
     thereafter be deemed to be a member of the jury of 12 and shall
     have full power to take part in the deliberations of the jury and the
     finding of the verdict. Any verdict found by any jury having
     thereon alternate jurors shall have the same force, effect, and
     validity as if found by the original jury of 12.
     6 The 1999 amendment altered that provision as follows:

           Retaining Alternate Jurors. The court may retain alternate

                                      10
that former rule. See, e.g., United States v. Josefik, 753 F2d 585, 587

(7th Cir. 1985); United States v. Lamb, 529 F2d 1153 (9th Cir. 1975).

But even under the former federal rule, the Eleventh Circuit

explicitly declined to follow Lamb, preferring instead to interpret

the former rule to permit substitution of an alternate juror even

after the jury began deliberations, so long as the jury was

“instructed to begin its deliberations anew.” See United States v.

Barker, 735 F2d 1280, 1282 (11th Cir. 1984) (citing United States v.

Phillips, 664 F2d 971, 990-997 (II) (5th Cir. 1981)). The revised

federal rule appears to have adopted that approach.

      Similarly, the state decisions cited by Howard rely upon

statutory provisions similar to the post-1999 federal rule, explicitly

requiring trial courts to instruct the jury to begin its deliberations

anew. See, e.g., State v. Corne, 

 (2006)




      jurors after the jury retires to deliberate. The court must ensure
      that a retained alternate does not discuss the case with anyone
      until that alternate replaces a juror or is discharged. If an
      alternate replaces a juror after deliberations have begun, the court
      must instruct the jury to begin its deliberations anew.
Fed. R. Crim. P. 24 (c) (3).
                                      11
(affirming by unpublished per curiam opinion) (citing Washington

Superior Court Criminal Rule 6.5 (“If the jury has commenced

deliberations prior to replacement of an initial juror with an

alternate juror, the jury shall be instructed to disregard all previous

deliberations and begin deliberations anew.”)); State v. Gomez, 

 (

) (Idaho App. 2002) (citing Idaho Criminal

Rule 24 (d) (2) (“If an alternate replaces a juror after deliberations

have begun, the court must instruct the jury to begin its

deliberations anew.”), as well as the lengthy, specific jury

instruction required by Idaho Criminal Jury Instruction 231).

Georgia’s statute governing the replacement of a juror with an

alternate contains no such provision.

     The decisions cited by Howard therefore are inconsistent with

Georgia’s statutory scheme for alternate jurors as laid out in OCGA

§ 15-12-168 et seq., particularly the provision that the trial court

may for good cause substitute an alternate “whether before or after

final submission of the case to the jury.” OCGA § 15-12-172. As this

Court noted in Tanner v. State, 

 (1) (

) (1978), explicitly rejecting inter alia the Lamb decision relied

upon by Howard:

            The cases relied upon by Tanner are based on the
      Federal Rules of Criminal Procedure and the laws and
      constitutions of other jurisdictions. These cases neither
      are binding upon us nor are they persuasive in their
      analysis. . . . When an alternate later is admitted to the
      panel of twelve in substitution for an original, he has full
      access to previous deliberations and may apprise himself
      of what has transpired in his absence by asking
      appropriate questions or by listening to the deliberations.
      We shall presume that he casts his vote knowingly and
      intelligently. Our statute promotes the important state
      interest of judicial efficiency by avoiding unnecessary
      retrials when a juror who is participating in a case
      becomes unable to continue.

(Citations omitted.)

      For the same reasons, we find the cases cited by Howard from

other jurisdictions unpersuasive, particularly in light of our opinion

in Sharpe.7 Howard cannot demonstrate error, and certainly not


      7 In the Georgia decisions cited by Howard, the jury instruction given

after seating an alternate was mentioned, but was not raised as an issue by
the parties. See, e.g., Wallace v. State, 

 (2) (

) (2018)
(holding trial court did not abuse discretion in dismissing holdout juror);
Compton v. Jackson, 

 (

) (2014) (on habeas
corpus, petitioner failed to show ineffective assistance of trial counsel in failing
to object to dismissal of juror or in-chambers conference); O’Donnell v. Smith,

 (1) (

) (2013) (on habeas corpus, juror not allowed
to impeach verdict).
                                        13
obvious error beyond reasonable dispute, in the giving of the

instruction at issue. We therefore need not reach the remaining

prongs of the plain error analysis, see Kelly, 

 (2) n. 5,

and this enumeration of error is without merit.

      3. In his second enumeration of error, Howard contends that

the trial court improperly instructed the jury on spoliation. While,

as the State concedes, the giving of a spoliation charge is

inappropriate in a criminal case, in light of the entire jury charge

and the evidence presented at trial as a whole, Howard has not

shown harmful error.

      During the investigation, police executed a search warrant at

a nearby home and found mail with Howard’s name on it, and a box

for a Smith & Wesson pistol with the serial number of the pistol sold

to Howard and containing an exemplar shell and a partial box of

Wolf ammunition.8 These items, as well as a spent Wolf shell found

at the scene and submitted to the GBI for testing, were lost by law



      8 An exemplar is the spent shell from a round of ammunition fired by the

manufacturer; it is included with the sale of the firearm.
                                      14
enforcement and never found. After a lengthy discussion and a

motion to dismiss by Howard, the trial court took the motion under

advisement but excluded the results of the GBI forensic testing of

the missing shells, which showed that the Wolf shell recovered from

the scene matched the exemplar shell in the box. After the close of

evidence, the trial court declined to dismiss the charges but gave the

following instruction to the jury:

          Ladies and gentlemen, if you should find that either
     party to this case destroyed or lost evidence in this case,
     and if you find that in so doing there was bad faith on the
     part of that party, then you would be authorized to infer
     that if the evidence were here, that the evidence, if
     available, would have been against that party’s interest.

     Howard objected to the giving of this instruction on the ground

that it should have included the possibility of finding prejudice to

the defendant as well as bad faith. The trial court declined to do so,

noting that the State suggested in closing argument that Howard

intentionally hid his pistol, so that including a prejudice element in

the charge would have required a further instruction that the jury

could infer that the fatal bullet had been fired from Howard’s pistol.


                                     15
Howard pointed out that such a charge would be improper because

it would shift the burden of proof to himself. Howard now argues

that the spoliation charge was burden-shifting even without the

further instruction, allowing the jury to infer that the fatal bullet

would have matched Howard’s pistol.9

     This Court has held that a typical spoliation charge, based

upon former OCGA § 24-4-22,10 is improper in a criminal case, even

when requested by a defendant:

           This court has previously held the section
     inapplicable in criminal cases and violative of a
     defendant’s right to be convicted by evidence establishing
     guilt beyond a reasonable doubt. . . . The charge, if given,
     would be more applicable to defendant than to the state
     and would apply to all the evidence on all counts,
     including the defendant’s failure to testify. This,

     9  Howard acknowledges in a footnote that the spoliation charge also
applied to the missing evidence lost by the State.
      10 The former Code section was in effect when Howard was tried in 2012.

It provided:
             If a party has evidence in his power and within his reach by
      which he may repel a claim or charge against him but omits to
      produce it, or if he has more certain and satisfactory evidence in
      his power but relies on that which is of a weaker and inferior
      nature, a presumption arises that the charge or claim against him
      is well founded; but this presumption may be rebutted.
This provision was carried forward substantially unchanged into the new
Evidence Code as OCGA § 24-14-22.

                                     16
       undeniably, would fly in the face of justice and the right
       of defendant to remain silent as well as having an eroding
       effect on the state’s burden of proving the defendant
       guilty beyond a reasonable doubt.

(Citations and punctuation omitted.) Radford v. State, 

 (7) (

) (1983) (affirming trial court’s refusal to give

spoliation charge requested by defendant).

       This does not conclude our analysis, however. In Ruiz v. State,

 (

) (2009), the trial court erred in giving a

jury    instruction   that   impermissibly    commented     upon     the

defendant’s right to remain silent. We observed that

       it does not follow that reversal is required. First[,]
       erroneous jury instructions are not judged in isolation,
       but rather are considered in the context of the entire jury
       charge and the trial record as a whole to determine
       whether there is a reasonable likelihood that the jury has
       applied the challenged instruction in a way that violates
       the Constitution. Second, an erroneous jury charge is not
       reversible unless it causes harm.

(Citations and punctuation omitted.) 

 (3).

       Here, the trial court charged the jury on the burden of proof

and presumption of innocence; the State’s burden to prove every

element of the offense beyond a reasonable doubt; that the defendant

                                   17
has no burden of proof; that the burden never shifts to the defendant

to introduce evidence or to prove innocence; and that any defense

raised by the evidence must be disproved by the State beyond a

reasonable doubt. In addition, the trial court instructed the jury that

“[t]he defendant in a criminal case is under no duty to present any

evidence tending to prove innocence and is not required to take the

stand and testify in the case.”

     Moreover, the trial record demonstrates that the parties and

the trial court considered the instruction at issue primarily in regard

to the State’s lost evidence, which was the focus of repeated

questioning throughout the trial. The two firearms examiners for

the State and for the defense testified briefly that an exact

comparison of a bullet could not be made without the gun at issue,

and the prosecutor argued in closing that Howard, not the State,

was responsible for the absence of the gun, and suggested that

Howard lost it because it would have incriminated him. The trial

court, however, instructed the jury that closing arguments are not

evidence. In the context of the entire charge and the trial record as

                                  18
a whole, Howard has not shown a reasonable likelihood that the jury

misapplied the challenged instruction, particularly since the

instruction as given omitted any mention of a charge or claim

against a party or the creation of a presumption “that the charge or

claim against such party is well founded.”

     In addition, the trial record as a whole indicates that the error

was harmless. Howard admitted firing his pistol at the scene,

although he contended that he acted in self-defense by firing into

the crowd or toward gunshots that he heard as he was running away

from the scene. Moreover, a total of ten eyewitnesses saw Howard

fire a pistol at the scene. Some testified that Howard fired the first

shot, some that he shot Paige multiple times, and some that he then

stood over Paige as he lay helpless on the ground and shot him in

the head. “[T]he evidence of guilt was overwhelming, and the

erroneous charge in no way pointed directly at the substance of

[Howard’s] defense. [Cit.]” Ruiz, 

 (3). Under these

circumstances, the giving of the erroneous charge was harmless.

     4. In his third enumeration of error, Howard asserts that his

                                 19
constitutional right to be present during a critical stage of the

proceedings was violated when the trial court met with a juror, all

counsel, and the court reporter in chambers before excusing the

juror from the jury.

     This Court has long recognized that a criminal defendant
     has a state constitutional right to be present during all
     critical stages of the proceedings against him. We have
     defined a “critical stage” of a criminal proceeding as one
     in which the defendant’s rights may be lost, defenses
     waived, privileges claimed or waived, or one in which the
     outcome of the case is substantially affected in some other
     way. If not waived by the defendant, a direct violation of
     the right to be present is presumed prejudicial and
     requires a new trial.

(Citations and punctuation omitted.) Hardy v. State, 

, __

(__ SE2d __) (2019). That right may be waived by a defendant,

however, “if the defendant personally waives it in court; if counsel

waives it at the defendant’s express direction; if counsel waives it in

open court while the defendant is present; or if counsel waives it and

the defendant subsequently acquiesces in the waiver.” (Citation and

punctuation omitted.) Brewner v. State, 

 (II) (

) (2017). Acquiescence may occur when “a defendant remains


                                  20
silent after he or she is made aware of the proceedings occurring in

his or her absence.” (Citation and punctuation omitted.) Burney v.

State, 

 (3) (b) (

) (2016). The question

is whether the defendant “had sufficient information concerning

[matters occurring outside his presence] to fairly construe his silence

in this regard as acquiescence.” 

 A trial court’s findings of fact in

this regard will be upheld unless clearly erroneous. See Tookes v.

State, 

 (3) (

) (2019).

     In its order on Howard’s motion for new trial, the trial court

found that Howard “did have a right to be present during the

discussions related to the deliberating juror, but that he waived that

right both through counsel (said waiver being made in Defendant’s

presence) and by acquiescence.” This decision was not clearly

erroneous. See Tookes, 

 (3).

     During deliberations, a juror sent a series of three notes asking

to be relieved from jury service because of her distress and inability

to deliberate. After the final note was received, the trial court

proposed to examine the juror in open court, but defense counsel

                                  21
requested that the juror be examined in chambers with the court

reporter and trial counsel present.11 After the proceedings in

chambers concluded, the participants returned to the courtroom and

the trial court announced that the juror would be replaced.

      Although Howard denied being present in court when the in-

chambers meeting was convened, he acknowledged that he was

present on the preceding day when the juror’s first note was read

“asking could they be replaced.” He also acknowledged that he was

present when the trial court returned to the courtroom after the

meeting to “put it on the record.” In open court and in Howard’s

presence, the trial court announced that a hearing had occurred in

chambers, laid out the substance of the juror’s testimony in detail,

and announced his decision to excuse the juror while noting it was

over defense counsel’s objection. Howard raised no objection to the

in-chambers meeting at that time or when the verdict was returned.




      11 At the hearing on Howard’s motion for new trial, trial counsel
explained that he wanted the juror to be examined in a less public setting,
hoping that he might still be able to persuade the judge to allow her to remain
on the jury.
                                      22
     At the time the trial court, in Howard’s presence, excused the

juror and placed upon the record the substance of the examination

of the juror in chambers, it is apparent that Howard had sufficient

information concerning the in-chambers meeting “to fairly construe

his silence in this regard as acquiescence.” Burney, 

(3) (b); see also Brewner, 

 (II) (defendant waived right

to be present during trial court interview of juror after decision was

announced in open court and defendant never voiced any

disagreement during trial); Fuller v. State, 

 (2) (

) (2004) (defendant waived right to be present at meeting

in jury room with trial judge and all counsel by failing to object after

learning of meeting; defendant was not “required to be silent at all

times and under all circumstances” during his trial). Accordingly,

Howard has waived this issue for appeal.

     5. Finally, Howard asserts that his trial counsel was ineffective

in failing to request a jury instruction on the principle of transferred

justification. “Under that principle, no guilt attaches if an accused

is justified in shooting to repel an assault, but misses and kills an

                                  23
innocent bystander. [Cits.]” Crawford v. State, 

 (2)

(

) (1997).

     To prevail on his Sixth Amendment claim of ineffective

assistance, Howard must prove both that the performance of his

lawyers was professionally deficient and that he was prejudiced by

this deficient performance. Strickland v. Washington, 

 (III) (

, 80 LE2d 674) (1984); Terry v. State, 

 (2) (

) (2008). To prove deficient performance,

Howard 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.” Romer v. State, 

 (3) (

) (2013). And to prove prejudice,

Howard “must show that there is 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. [Cit.]” Young v.

State, 

 (5) (

) (2019). And if an appellant

                                 24
fails to show either deficiency or prejudice, this Court need not

examine the other prong of the Strickland test. See Palmer v. State,

 (IV) (

) (2018).

     At the hearing on Howard’s motion for new trial, his lead

counsel testified that he did not request an instruction on

transferred justification because, in his view, “as I recall the theory

of this case, it was pure self-defense, that he was being shot at and

was shot . . . . I can’t tell you whether he was shooting at somebody

else and shot someone else. I can’t tell you that that was the theory

of this case.” Counsel added that after the passage of five years, he

could not recall all the facts in the case, and if the facts did fit that

charge, he “was wrong.”

     The only evidence supporting a claim of self-defense was

Howard’s statements to police officers that he was shot and in

response fired “into the crowd” or in the direction of the gunshots

that he heard. No evidence was presented that Howard fired at a

particular person, missed, and hit another. Compare Allen v. State,

 (1) (

) (2012) (appellant claimed

                                   25
that he aimed at unidentified man who pointed gun at him, but

missed, and bullet struck victim). And in language almost identical

to that quoted in Allen, the trial court did instruct the jury on

justification and self-defense, including that “a defendant is justified

to kill or use force against another person in defense of self or others”

(emphasis supplied) if “he reasonably believes that such threat or

force is necessary to prevent death or great bodily injury to himself

or a third person.” See Allen, 

 (3).

     Given that the instruction referred generally to “another

person,” as this Court noted in Allen, “considered as a whole the

court’s charge made clear to the jury that it should acquit appellant

if it determined he was justified in firing his weapon, regardless of

whom the bullet struck. [Cit.]” 

 Moreover, “the principle of

transferred justification does not apply if the accused shot carelessly

and in reckless and wanton disregard of the danger resulting to the

bystander.” (Citation and punctuation omitted.) Crawford, 

 (2) (defendant’s testimony that he turned and fired blindly at

noise did not support charge on transferred justification or self-

                                   26
defense).12 Howard’s statement to police that he fired in the general

direction of the crowd while running away does not constitute slight

evidence    supporting      a   jury   instruction     on    self-defense    or

justification.

      Howard therefore has failed to show deficiency on the part of

his trial counsel in not requesting a charge on transferred

justification.

      Judgment affirmed. All the Justices concur.




                         DECIDED OCTOBER 7, 2019.
      Murder. Spalding Superior Court. Before Judge Sams.
      Brian Steel, for appellant.
      Benjamin D. Coker, District Attorney, E. Morgan Kendrick,

      12 Howard contends that the State argued that “even if the jury believed

Appellant’s defense on this issue, Appellant, by killing an unarmed innocent
man was guilty of murder under the trial court’s jury instructions.” But the
State at the time was contending that Howard’s actions in shooting into a
crowd constituted implied malice, which the prosecutor defined as “where there
appears to be no provocation and all of the circumstances of the killing
evidenced an abandoned and malignant heart. You don’t care what you do.”
(Emphasis supplied.) Similarly, the trial court instructed the jury that
“[m]alice may, but need not, be implied when no considerable provocation
appears and when all the circumstances of the killing show an abandoned and
malignant heart. It is for you, the jury, to decide whether or not the facts and
circumstances of this case . . . show malice.” (Emphasis supplied.)
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Elizabeth H. Brock, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellee.




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