Harrison v. State

FINAL COPY

             S20A0856. HARRISON v. THE STATE.


     BOGGS, Justice.

     In 2009, Appellant Richard James “Paul” Harrison was tried

on charges of murder and felony murder in connection with the

shooting death of Dewey Lamar Johnson, but the trial ended in a

mistrial when the jury was unable to reach a verdict. Appellant was

retried in 2011 before another jury and found guilty of murder and

felony murder. He was sentenced to life in prison, his amended

motion for new trial was denied, and he appeals, asserting five

enumerations of error: four claims of ineffective assistance of

counsel and a merger error in sentencing. For the reasons stated

below, we affirm the judgment of conviction and sentence on the

malice murder count. The felony murder conviction and sentence the

trial court erroneously imposed and then purported to “merge” with
the malice murder conviction stand vacated as a matter of law.1

      1. Construed in the light most favorable to the jury’s verdicts,

the evidence showed that on Friday, September 7, 2007, Appellant

was living in Alma with his cousin Kenneth “Kenny” Harrison,

Kenny’s wife Terretha Johnson, and Kenny and Terretha’s children.

Kenny was known in the community as a drug dealer. In addition to

selling drugs, Kenny also bought or traded drugs for stolen copper

wire, burned off the insulation, and sold it. On the evening of

September 7, as Appellant and Kenny were driving in Kenny’s SUV

around the Alma area with a load of wire, they encountered the

victim, whom Kenny knew from prior drug sales. Kenny asked the

victim if he wanted to make some money helping burn the wire, and


      1 The crime occurred on September 7, 2007. On December 18, 2007, a

Bacon County grand jury indicted Appellant for malice murder and felony
murder. A 2009 trial ended in a mistrial after the jury was unable to reach a
verdict. In a second jury trial from August 31 to September 1, 2011, Appellant
was found guilty on both counts, and the trial court erroneously sentenced him
to serve life in prison on both counts and then purported to merge Count 2 into
Count 1. On September 20, 2011, Appellant’s trial counsel filed a motion for
new trial, which was amended by subsequent counsel on October 23, 2019. On
December 26, 2019, the trial court denied Appellant’s amended motion for new
trial. Appellant filed a timely notice of appeal on January 10, 2020, and the
case was docketed in this Court to the April 2020 term and submitted for a
decision on the briefs.
the victim got into the vehicle with Kenny and Appellant.

     The three men snorted some cocaine, drove out into the

country, entered some nearby woods, and began unloading spools of

wire. Appellant and the victim got into an argument, which

escalated into “tussling,” and Appellant put the victim in a choke

hold until he fell to the ground, unconscious. Appellant then walked

back to Kenny’s vehicle, took Kenny’s pistol from under the front

seat, walked over to the victim who was lying motionless on the

ground, and shot him twice in the back of the head.

     Kenny asked Appellant, “What the hell is you doing?” and

Appellant responded, “He shouldn’t have tried me.” Kenny then told

Appellant to help him reload the spools of wire back into the vehicle

and take them to another location in the woods. Kenny told

Appellant to get rid of the gun — which was never found — and they

went to a local club with a friend, Thomas Lee. At some point Kenny

left the club, went to the home of an acquaintance, Gwen Tyre, and

then returned home about 4:00 or 5:00 a.m. and went to bed.

     A few hours after arriving back home, Kenny took Terretha
and the children fishing. They went to “two or three ponds” to fish,

including a spot near the woods where Kenny had seen Appellant

shoot the victim the night before. Terretha testified that she and

Kenny saw the body lying there, so Terretha told Kenny to go check

if the man was dead and to call police. Kenny called the police

around 1:00 p.m. on Saturday, gave his name to the dispatcher, and

described where the body was located. The police could not find the

victim, but a few hours later a passerby discovered the body and

called police. Terretha testified at trial that Appellant acknowledged

to her that he had shot the man that Terretha and Kenny found.

     Appellant told investigators that he had not seen the victim in

over a month. He stated that he was at his cousin Kenny’s house

with Kenny, Terretha, and the children all day on the day of the

shooting and never left the house that night. Appellant added that

he did not wake up on Saturday morning until after Kenny had gone

fishing with his family. He insisted that he had no involvement in

the death of the victim.

     At trial, Appellant testified in his own defense and repeated
that he knew nothing about the shooting. Instead of insisting that

he never left Kenny’s house, however, Appellant testified that at

8:00 on Friday night he went with Kenny and Lee and “some

females” to a nightclub, where he stayed until 12:00 a.m., when they

went to Tyre’s house. Appellant, Lee, and the women stayed the

night at Tyre’s house, and the women dropped Appellant off at

Kenny’s house the next morning. Appellant testified that “Kenny’s

wife let me in” and that he went “straight to bed” and woke up

around 10:00 or 11:00 a.m. when the others came back from fishing

and told him what they had found. Appellant testified that he did

not know Kenny owned a gun and that he had nothing to do with

the killing of the victim.

     Appellant has not challenged the sufficiency of the evidence to

support his conviction. However, as is this Court’s practice in

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

sufficiency of the evidence.2 We conclude that the evidence presented


     2 We remind litigants that the Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
at trial and summarized above was sufficient to enable a rational

trier of fact to conclude beyond a reasonable doubt that Appellant

was guilty of the crimes charged. See Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979).

     2. In four enumerations of error, Appellant contends that he

was denied the effective assistance of counsel at trial. To prevail on

his claims of ineffective assistance, Appellant must prove both that

the performance of his lawyer was professionally deficient and that

he was prejudiced by this deficient performance. See Strickland v.

Washington, 

 (III) (

, 80 LE2d 674)

(1984). If an appellant 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). To

prove deficient performance, Appellant must show that his attorney

“performed at trial in an objectively unreasonable way considering

all the circumstances and in the light of prevailing professional


term of court that begins in December 2020. See Davenport v. State, 

, ___ (4) (

) (2020). The Court began assigning cases to the
December term on August 3, 2020.
norms.” Romer v. State, 

 (3) (

) (2013).

This requires a defendant to “overcome the strong presumption that

counsel’s performance fell within a wide range of reasonable

professional conduct.” (Citation and punctuation omitted.) Marshall

v. State, 

 (2) (

) (2015). This burden,

although not impossible to carry, is a heavy one. Jones v. State, 

 (7) (

) (2013). We conclude that Appellant

has failed to show constitutional deficiency on the part of his trial

counsel.

     (a) In two enumerations of error, Appellant contends that trial

counsel was ineffective in failing to object on the grounds of

inadmissible hearsay and improper bolstering when the prosecutor

twice asked Terretha whether Kenny told her he was at the scene

and saw Appellant shoot the victim. Appellant also contends that

trial counsel likewise was ineffective in failing to raise the same

objections when a GBI agent testified that Terretha stated during

an interview that Kenny told her that he saw Appellant shoot the

victim.
     With respect to Terretha’s testimony, at the hearing on

Appellant’s motion for new trial, trial counsel acknowledged that the

testimony was hearsay and bolstering, but explained:

     You know, our whole defense was basically that this
     woman was a less-than-honest person, that she was a liar.
     . . . And it — by that time, it would probably have already
     been put into evidence that she had taken and failed a lie
     detector test.[3] She had changed her testimony after that.
     . . . [W]hen she changed her testimony . . . it was not put
     to a lie detector test. . . . [T]hen, the things she said, my
     whole — our whole defense was, it doesn’t matter what
     she says; it’s not believable. . . . [O]ur whole position was,
     you ought not to listen to anything this woman says
     regardless.

Trial counsel was asked whether he did not object as a matter of

“trial strategy,” and he responded, “Yes, I would say so.”

     Similarly, with respect to the GBI agent’s testimony, trial

counsel was asked if there were “hearsay concerns” and responded,

“Well, yes and no. I kind of get back to the same thing. Like I say,

our whole defense was that her testimony was — was immaterial.”

Appellate counsel then asked trial counsel if the agent’s testimony



     3 Trial counsel’s recollection was accurate; the State had elicited that

testimony from Terretha before discussing Kenny’s statement.
“suggests a problem with an improper bolstering of Kenny’s

testimony?” Trial counsel responded:

           Well, in one sense; but in another sense, our defense,
      as I recall, is it — seems like my name for Kenny was
      “Kenny, the Killer.” Our defense was that Kenny killed
      him — killed [the victim] — and that she was a part of the
      coverup helping Kenny lay the blame on [Appellant]. And
      so — so to some extent, we felt like when she’s saying
      these things, she is bolstering our position because she is
      helping Kenny hide the truth.

When asked, “So, in other words, were you following the trial

strategy, you believe[?]” counsel responded, “Well, yes. . . . [L]ike I

say, I felt like this played into what we were trying to sell to the

jury.” He added that he preferred to use cross-examination to

highlight Terretha’s inconsistent statements: “I wanted as many

different stories from her as possible.”4


      4 On cross-examination, Terretha acknowledged that she initially told

investigators that she knew nothing about the shooting, before stating that
Appellant told her he shot the victim; that she had also told investigators that
Kenny told her a man named Ashley Carter shot the victim; and that she told
investigators that Thomas Lee and another individual returned home with
Kenny on the night of the incident. In addition, Terretha testified at one point
during cross-examination that Kenny had not told her that he was present
when Appellant shot the victim. And in a letter written to Kenny in jail, which
trial counsel had Terretha read aloud to the jury, she asked, “Why didn’t you
just tell me that? Did you see everything that happened? . . . You actually saw
everything that happened. Did you see Ashley Carter shoot Dewey?”
     Finally, trial counsel testified that he was also Appellant’s trial

counsel in his 2009 trial, which ended in a hung jury and a mistrial,

and that he had used the same defense strategy in that trial.

     The standard regarding ineffective assistance of counsel
     is not errorless counsel and not counsel judged ineffective
     by hindsight, but counsel rendering reasonably effective
     assistance. In determining what constitutes ineffective
     assistance, a critical distinction is made between
     inadequate preparation and unwise choices of trial tactics
     and strategy. Particularly in regard to matters of trial
     strategy and tactic[s], effectiveness is not judged by
     hindsight or result.

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

(2) (b) (

) (2012). And “[a]n attorney’s decision about

which defense to present is a question of trial strategy.” (Citation

and punctuation omitted.) Bryant v. State, 

 (2) (c)

(

) (2019). Here, trial counsel articulated a reasonable

strategy in pointing out Terretha’s changing story rather than

objecting to one version of that story as hearsay. See Holmes v. State,

 (3) (b) (

) (2013) (trial counsel not

deficient in decision not to object to hearsay because he believed that

testimony supported appellant’s defense). See also Beck v. State, 

 (2) (

) (2007) (Trial counsel’s strategy

to use hearsay testimony to support appellant’s defense rather than

to object, “though unsuccessful, is not deficient performance.”).

“Thus, we cannot conclude that in failing to raise a hearsay

objection, counsel was pursuing an unreasonable strategy.” Holmes,

 (3) (b). Similarly, as trial counsel testified here, not

objecting to testimony as bolstering can be part of a reasonable trial

strategy calculated to cast doubt on the State’s belief in an

unreliable witness, among other reasons. See Jones, 

(7) (d). Appellant therefore has failed to carry his burden to prove he

was denied effective assistance of counsel. 

     (b) In his third and fourth enumerations of error, Appellant

contends that trial counsel was ineffective in failing to raise a

Confrontation Clause objection to Terretha’s testimony regarding

her polygraph examination and in failing to request the pattern jury

instruction on polygraph evidence. But at the hearing on Appellant’s

motion for new trial, trial counsel noted that the case was not a

typical situation involving polygraph tests, where “either there’s a
stipulation or there’s not. And if there’s not, they’re generally not

put in.”5 Here, no results of a polygraph examination were entered

into evidence, and the examiner did not testify. Rather, the evidence

came from the witness herself, Terretha, who testified that she lied

before the polygraph was administered, that she changed her story

after she was told she failed the polygraph, and that she was not

thereafter given another polygraph examination by the State.

      However, the question presented here is not the general

admissibility of polygraph results, but whether trial counsel was

constitutionally deficient in failing to object to the testimony

regarding the polygraph administered to Terretha. Trial counsel

testified, “I felt like we wanted it in and so I wasn’t going to

object. . . . I just felt like under the fact . . . situation that it was

beneficial to us.” He added, with reference to Appellant’s mistrial



      5 This was a correct statement of the law at the time of Appellant’s trial

in 2011, subject to certain exceptions. Compare State v. Chambers, 

 (

) (1977) (results of polygraph may be admitted upon express
stipulation by parties), with Newberry v. State, 

 (3) (

) (1990) (evidence that witness has taken polygraph admissible
without stipulation to explain witness’ conduct, if conduct relevant to issues on
trial).
due to a hung jury, “It had worked the first time and I wanted to

stick with what I felt like worked.” As in Delaney v. State, 

 (2) (

) (2018), “the testimony was utilized by

trial counsel to support the defense’s theory that [Kenny] was the

actual murderer.” Trial counsel argued that the failed polygraph

and its aftermath demonstrated that Terretha was willing to lie at

her husband’s direction in order to shield him, and on cross-

examination he established that Terretha was never given another

polygraph after she changed her story. Trial counsel used this

evidence to argue that the State was incurious about whether

Terretha was telling the truth “[a]fter she said what . . . they wanted

her to say.”

     In short, defense counsel used the polygraph-examination
     testimony to cast suspicion on [Kenny and Terretha], the
     State’s star witness[es], and cast doubt on the State’s
     investigatory tactics. Trial counsel’s decision not to object
     to the polygraph testimony was not unreasonable, and,
     thus, trial counsel did not perform deficiently in this
     regard.

Delaney, 

 (2). Appellant therefore has failed to

demonstrate that his trial counsel was deficient in failing to raise
this objection.

     With respect to the pattern instruction on polygraph evidence,

trial counsel did not have an independent recollection of why he did

not request the charge, but he agreed that if he thought it would

have helped his defense, he would have requested it. And he testified

that his failure to request the charge “would make sense, based on

what we were doing to not necessarily want to go there.” He believed

that not requesting the charge did not hurt his defense: “I felt like

the polygraph itself — the fact of it was that the only polygraph

[evidence] that was ever admitted into trial was that one of the main

witnesses against us had been untruthful.”

     The pattern jury instruction, moreover, goes primarily to the

expert opinion testimony of a polygraph examiner as to the results

of the examination that he or she administered to a witness. Here,

the contents of such a charge would have not aided and might have

harmed trial counsel’s theory of the case. The pattern jury

instruction provides:

           There has been certain evidence admitted during the
     trial concerning a polygraph test and the polygraph
     examiner’s opinions and conclusions as to its results.
     Polygraph evidence is considered opinion evidence and is
     governed by the law concerning opinion evidence as has
     been/will be given to you.
           A polygraph examiner’s opinion can only be used to
     indicate whether, at the time of the polygraph
     examination, the defendant/witness believed that he/she
     was telling the whole truth. You are not bound by the
     polygraph examiner’s conclusions, and the examiner’s
     testimony is not controlling on the issues and may be
     entirely disregarded by you. It is for you to decide what
     weight, if any, should be given to the evidence concerning
     the polygraph test, its results, and the examiner’s
     opinions and conclusions.

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases,

§ 1.31.11 (4th ed. 2020); see Chambers, 

. Aside from the

fact that no such opinion testimony was given, this instruction could

have injected doubt into the jury’s deliberations regarding trial

counsel’s theory of the case, by suggesting that the fact that

Terretha failed a polygraph test could be disregarded entirely.

Appellant therefore has not demonstrated that his trial counsel was

deficient in failing to request the pattern jury instruction.

     3. Finally, Appellant asserts error in sentencing, and the State

concedes this error. The trial court pronounced sentence as follows:
“All right. Mr. Harrison, having been found guilty of Murder on

Count 1, I’ll sentence you to life in prison. Having been found guilty

of Felony Murder on Count 2, I will sentence you to life in prison. I

will merge Count 2 into Count 1.” The judgment of conviction and

sentence shows: “Ct. 1: Life; Ct. 2: Life (will merge with Ct 1).”

     The record shows that the trial court sentenced
     [Appellant] to separate life sentences for malice murder
     and felony murder. However, because there was only one
     homicide victim, [Appellant] could not be sentenced for
     both malice murder and felony murder. See Martinez v.
     State, 

 (

) (2008).

Krause v. State, 

 (9) (

) (2010). The trial

court erred in pronouncing a sentence on a count that merged. The

court also erred in merging Count 2 into Count 1, because the felony

murder count was vacated by operation of law, so no judgment of

conviction or sentence could be imposed thereon, and appellant

properly could be sentenced only to one life term. Appellant’s

purported judgment of conviction and sentence on the vacated count

of felony murder therefore stands vacated as a matter of law. 

     Judgment affirmed. All the Justices concur.
                   Decided September 8, 2020.

     Murder. Bacon Superior Court. Before Judge Brooks.
     David J. Walker, for appellant.
     George E. Barnhill, District Attorney, Alexander J.
Markowich, Assistant District Attorney; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Matthew D. O’Brien, Assistant Attorney General, for appellee.