Merritt v. State

FINAL COPY

                 S20A1190. MERRITT v. THE STATE.


      PETERSON, Justice.

      Jerry Merritt appeals his convictions for malice murder and

possession of a firearm during the commission of a felony for the

shooting death of Anthony Taylor, following an argument between

the two several hours earlier.1 Merritt argues that his trial counsel

was ineffective and that the trial court erred by failing to give jury

instructions on voluntary manslaughter and duty to retreat and by




      1 The crimes occurred on June 6, 2014. On March 10, 2015, a Muscogee

County grand jury returned an indictment charging Merritt with malice
murder, felony murder predicated on aggravated assault, aggravated assault,
and possession of a firearm during the commission of a felony. A jury found
Merritt guilty of all counts at a February 2017 trial. The trial court sentenced
Merritt to life without parole for malice murder, as well as a consecutive fiveyear sentence for the firearms offense. The felony murder count was vacated
by operation of law, and the aggravated assault count merged into malice
murder. Merritt filed a motion for new trial through trial counsel on February
13, 2017, and amended the motion through appellate counsel on November 6,
2019. Following a hearing on November 26, 2019, the trial court denied the
motion in an order entered on February 3, 2020. Merritt filed a timely notice
of appeal, and the appeal was docketed to this Court’s August 2020 term and
submitted for a decision on the briefs.
allowing the prosecutor to ask leading questions. We conclude that

any deficient performance by counsel did not prejudice Merritt’s

case, that any error by the trial court in allowing leading questions

was harmless, and that the trial court did not plainly err in refusing

to give the requested instructions. We affirm.

      The evidence presented at Merritt’s trial showed the following.2

Merritt and Taylor both frequently spent time at the Pure Gas

Station on Fort Benning Road in Muscogee County. Merritt was frail

and skinny, weighing about 110 pounds, while Taylor stood over six

feet tall and weighed at least 222 pounds. The two men ostensibly

were friends, although Merritt’s sister testified that on occasion

Taylor would beat Merritt up or steal his money, and another

defense witness testified that he witnessed Taylor making violent

threats toward Merritt.

      In the early morning hours of June 6, 2014, around 1:00 or 1:30,

Merritt and Taylor had an argument at the gas station. Merritt


      2 Because this case requires an assessment of the harmful or prejudicial

effect of alleged trial court error and deficient performance by counsel, we lay
out the evidence in detail and not only in the light most favorable to the verdict.
                                        2
entered the store carrying a stick, followed by Taylor, who was

carrying a pipe. Taylor struck Merritt in the face with the pipe,

bloodying Merritt’s face. Merritt ran outside and left in a friend’s

vehicle. Upon returning home, Merritt showed his sister his injuries,

and the two siblings drove around looking for Taylor. The search was

unsuccessful, and Merritt’s sister dropped him off near the gas

station. Before his sister left, Merritt told her that he loved and

missed her and would “not be home.”

     Later that morning at the gas station, Merritt told a friend

about the fight with Taylor and that he planned to kill Taylor the

next time he saw Taylor. Around 9:00 a.m., Taylor arrived at the gas

station. Taylor got out of the car and began walking toward the store

where Merritt was standing. Soon after approaching Merritt, Taylor

turned away and started running. Merritt chased Taylor around the

outside of the store, shooting at him multiple times. Taylor ran

across the street, where he collapsed. Merritt proceeded down a side

street, but returned shortly thereafter and turned himself in to

police. He had a visible laceration above his eye at the time. Taylor

                                 3
died of a single gunshot wound to the back.

     Questioned by police, Merritt was read his Miranda3 rights and

agreed to be interviewed. Merritt reported being bullied repeatedly

by Taylor. He said that, after the incident in which Taylor hit him

with a pipe, he made up his mind that he was going to kill Taylor if

Taylor returned to the store. Merritt said he retrieved his gun when

he returned home that morning. He admitted chasing and shooting

Taylor, saying that he fired the gun until he ran out of bullets.

Merritt at one point claimed that Taylor had a knife in his hands

when he got out of the truck, but later admitted that was not true.

Merritt acknowledged that Taylor did not say anything to him when

he got out of the truck, explaining that Taylor did not have an

opportunity to do so. When told that Taylor was dead, Merritt

responded that he was not going to “shed a tear” because “God don’t

like ugly.” Merritt ultimately led police to the gun he used to shoot

Taylor; the revolver’s cylinder had five spent rounds.

     1. Although Merritt does not challenge the sufficiency of the


     3 Miranda v. Arizona, 

 (

, 16 LE2d 694) (1966).

                                    4
evidence, we have independently reviewed the record and conclude

that the evidence presented at trial was legally sufficient to

authorize a rational trier of fact to find beyond a reasonable doubt

that he was guilty of the crimes of which he was convicted. See

Jackson v. Virginia, 

 (

, 61 LE2d 560)

(1979).4

     2. Merritt first argues that trial counsel was ineffective by

failing to put forth a clear defense and failing to object properly to

the State’s impeachment of its own witness. We conclude that

Merritt has not shown deficient performance by counsel as to the

first issue, and that he has not shown prejudice as to the second.

     To prevail on a claim of ineffective assistance of counsel,

Merritt must show both that his trial counsel’s performance was

deficient and that this deficiency prejudiced his defense. See

Strickland v. Washington, 

 (

, 80 LE2d


     4 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
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.
                                     5
674) (1984). “To establish deficient performance, [Merritt] must

overcome the strong presumption that his . . . counsel’s conduct falls

within the broad range of reasonable professional conduct and show

that his counsel performed in an objectively unreasonable way” in

the light of all of the circumstances. Smith v. State, 

(2) (

) (2015) (citation and punctuation omitted). To

establish prejudice, Merritt “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland, 

. Merritt must prove both prongs of the Strickland test, and if

he fails to prove one prong, “it is not incumbent upon this Court to

examine the other prong.” Smith, 

 (2) (citation and

punctuation omitted). “In reviewing a ruling on a claim of ineffective

assistance of counsel, we defer to the trial court’s findings of fact

unless they are clearly erroneous, but we apply the law to the facts

de novo.” State v. Spratlin, 

 (2) (

) (2019).

     (a) Merritt argues that his trial counsel was ineffective for

failing to put forth a clear defense in either opening or closing

                                  6
statements. He points out that, even though the trial court ruled at

the beginning of trial that the defense could not introduce expert

testimony that Merritt suffered from either battered person

syndrome or post-traumatic stress disorder, trial counsel made

arguments to the jury seemingly in line with such a defense. In

particular, trial counsel emphasized in her opening statement that

she expected the evidence to “show that this is a pattern of repeated

psychological and physical trauma suffered” by Merritt at the hands

of Taylor. In closing, trial counsel argued that Merritt was in shock

and, in his mind, Taylor’s attack on him was “still happening” when

Merritt responded with violence. She argued that Taylor had

repeatedly bullied Merritt, who shot Taylor because he was

traumatized and “tired” of “repeated attacks.” Merritt complains on

appeal that counsel did not point to a particular defense, such as

justification, in her arguments to the jury, and did not discuss

concepts like burden of proof and reasonable doubt.

     Defense counsel is permitted wide latitude in making an

opening statement and closing arguments and is not ineffective

                                 7
simply because another attorney “might have used different

language or placed a different emphasis on the evidence.” Davenport

v. State, 

 (5) (

) (2008). Although

Merritt complains on appeal that trial counsel did not explicitly

argue self-defense to the jury, counsel did attempt to show —

through her opening statement, questioning of witnesses, and

closing argument — that Merritt had reason to be afraid for his life

whenever he saw Taylor, highlighting the previous difficulties

between the two and the disparity between their physical statures.5

See State v. Sims, 

 (2) (b) (

) (2015)

(approving trial court analysis as to why trial counsel’s failure to

object to prosecutor’s opening comments prejudiced the defendant,

who claimed self-defense in part based on significant physical

disparity between himself and the victim); Mobley v. State, 

 (1) (

) (1998) (explaining that “[e]vidence

of past physical abuse is admissible for the limited purpose of



      5 We note also that the trial court instructed the jury on prior difficulties

and self-defense.
                                        8
illustrating that [the] defendant had a reasonable belief in the

imminence of additional physical abuse at the hands of the victim

and that, therefore, [the defendant] was presently justified in acting

in self-defense” (citation and punctuation omitted)).

     “Furthermore, when trial counsel does not testify at the motion

for new trial hearing about the subject, it is extremely difficult to

overcome the presumption that his conduct was reasonable.”

Finnissee v. State, 

 (2) (

) (2020)

(citation and punctuation omitted). In this case, Merritt did not

question trial counsel at the hearing on his motion for new trial.

Without trial counsel’s testimony or some other evidence explaining

trial counsel’s decision, Merritt cannot overcome the presumption

that trial counsel’s choice of words in her arguments to the jury —

not patently unreasonable on their face — was strategic and

reasonable. He has not shown that counsel performed deficiently in

that respect.

      (b) Merritt also argues that trial counsel rendered ineffective

assistance by failing to object to the State’s impeachment of its own

                                  9
witness. At trial, eyewitness Anthony Bradley testified that, as he

emerged from the gas station on the day of the shooting, he saw one

person running and a second one (whom he identified in a photo

array as Merritt) chasing the first person around the store with a

gun. Bradley heard gunshots behind the store, heard another shot

as the two men ran back between the gas pumps, and then saw the

victim go across the street before collapsing, whereupon Merritt ran

away. Bradley was not asked about a previous statement to police

in which he said that even after Taylor had fallen, Merritt stood over

him and continued to pull the trigger of his gun, even after no

cartridges remained. Sergeant Michael Dahnke later testified about

this statement over the defense’s objection; the trial court admitted

the testimony as impeachment with a prior inconsistent statement.

Merritt argues on appeal that the defense’s objection — that the jury

had “just heard from” Bradley and that Bradley had not said he was

unable to recall his prior statement — failed to raise the correct

objection that the State was improperly attempting to introduce a

prior inconsistent statement. See OCGA § 24-6-613 (b) (“Except as

                                 10
provided in Code Section 24-8-806, extrinsic evidence of a prior

inconsistent statement by a witness shall not be admissible unless

the witness is first afforded an opportunity to explain or deny the

prior inconsistent statement and the opposite party is afforded an

opportunity to interrogate the witness on the prior inconsistent

statement or the interests of justice otherwise require.”).6

     Here, it appears that defense counsel’s objection may have

been sufficiently specific to alert the trial court to the issue that



     6 After  Sergeant Dahnke began to testify about Bradley’s statement,
Merritt objected as follows:
            [DEFENSE COUNSEL]: At this point, Your Honor, I am going
     to object to this line of questioning and testimony. We just heard from
     the witness. We heard his statement. I don’t know if the State is just
     trying to put in a second version of his statement. I mean, we have
     heard from him.
            COURT: I will allow you to continue. Just as long as it’s not
     cumulative testimony.
            [PROSECUTOR]: No, it’s not. It’s not cumulative, Your Honor.
     The witness was not able to remember everything that he said to the
     police.
            [DEFENSE COUNSEL]: At no point did he say he didn’t recall
     or that he didn’t remember his statement. He gave testimony without
     issue, Your Honor.
            [PROSECUTOR]: Which is inconsistent with what he said to
     Sergeant Dahnke. So without trying to make the witness look bad,
     I’m just allowing this witness to impeach Mr. Bradley with prior
     inconsistent statement. And that witness is still available for cross-examination if [defense counsel] chooses to do so.
            COURT: Continue.
                                    11
Merritt raises on appeal. The State defended Merritt’s objection on

the ground that the evidence was a prior inconsistent statement,

and defense counsel raised the argument that Merritt raises now,

i.e., that Bradley had not testified that he did not remember the

statement. See Mitchell v. State, 

 (2) (a) (

) (2020) (counsel need not use any specific phrasing to lodge a

particular objection). But even assuming that counsel performed

deficiently in failing to raise this objection more clearly, Merritt has

not shown that he was prejudiced by this failure. Had counsel raised

the objection more clearly, leading the trial court to rule that

testimony inadmissible as offered by the State, the State then could

have recalled Bradley to the stand, either to elicit testimony

consistent with his prior statement or to lay the foundation for

admission of the statement through Sergeant Dahnke if Bradley

denied or could not remember making the statement. See London v.

State, 

 (3) (a) (

) (2020) (“A witness’s

failure to remember making a statement may provide the

foundation for offering extrinsic evidence to prove that the

                                  12
statement was made.” (citation and punctuation omitted)); see also

Smith v. State, 

 (3) (a) (

) (2019) (no

reasonable probability of different outcome of trial had defense

counsel raised particular objections to playing of recordings for

purpose of refreshing witnesses’ recollection, as such objections

could have been readily overcome by the State).

     Moreover, although Merritt argues that the admission of

Bradley’s prior statement was highly prejudicial because no

eyewitness testified that Merritt crossed the street to where Taylor

lay, Taylor’s cousin-in-law did testify that Merritt squeezed the

trigger of his gun two or three more times after Taylor collapsed,

until it clicked. And the jury heard other evidence, including

Merritt’s own statement, that Merritt shot at Taylor until he was

out of bullets. Thus, Bradley’s statement was cumulative of other

evidence, and Merritt has not shown a reasonable probability that

the outcome of his trial would have been different had his counsel

objected differently. See Anderson v. State, 

 (5) (c)

(

) (2020) (even assuming trial counsel performed

                                 13
deficiently by failing to object to certain testimony, appellant did not

show prejudice given that the statements were cumulative of other

admissible evidence).

     3. Merritt next argues that the trial court erred by allowing the

State to ask leading questions of a witness who testified about prior

bad acts by Merritt. We conclude that any error was harmless.

     The State offered evidence under OCGA § 24-4-404 (b)

regarding a December 2013 incident in which Merritt allegedly

stabbed Rashan Harris during an altercation. Harris testified that

he threw the first punch and that he had no ill feelings toward

Merritt. On cross-examination, Harris testified that two months

prior to trial, he and Merritt were housed in the same area of the

county jail and did not have any issues between them. On redirect

examination, Harris clarified that he and Merritt had shared a cell.

The State repeatedly asked Harris on redirect whether the 2013

incident was a “big deal,” culminating in the question, “It was a big

deal on December 2, 2013, wasn’t it, that you got stabbed seven

times in the back?” Trial counsel objected to the question as leading,

                                  14
and the trial court overruled the objection. The prosecutor stated in

front of the jury that the witness appeared to be “in compliance with

the defense” and posed additional questions to which the defense

objected as leading; the court overruled some, but not all, of the

objections. Over defense counsel’s objection to a question as leading,

Harris elaborated on his testimony that in recent weeks he had

received phone calls in which he was accused of being a “snitch.”

     OCGA § 24-6-611 (c) provides that “[l]eading questions shall

not be used on the direct examination of a witness except as may be

necessary to develop the witness’s testimony” or where the witness

is hostile, an adverse party, or associated with an adverse party.

Whether to allow leading questions is a matter committed to the

trial court’s discretion. See Slaton v. State, 

 (5)

(

) (2018). Here, any abuse of discretion in the trial

court’s allowing the complained-of leading questions was harmless.

     It is not clear from Merritt’s briefing precisely what testimony

he challenges on appeal; he argues that “[t]he entire line of

questioning, plus the gratuitous comments of the State, made over

                                  15
objection, certainly constituted improper leading questions and

certainly prejudiced” his case. But much of Harris’s testimony in the

portion of his redirect examination that Merritt cites on appeal was

cumulative of testimony Harris gave on his initial direct

examination, without objection. Merritt apparently complains about

Harris’s testimony that he was stabbed seven times in the back,

sought medical attention in a hospital, and was told that a jacket

that he was wearing prevented more severe injury, as well as

Harris’s testimony that Merritt’s dispute primarily was with

Harris’s cousin, who pulled Merritt off Harris. But Harris already

had testified to those facts without objection during his direct

examination. Although the portions of the record that Merritt cites

on appeal also include objected-to testimony about Harris or his

family receiving threatening calls, Harris’s initial testimony on

redirect examination about being called a “snitch” was not objected

to specifically and was not elicited by a leading question. Similarly,

to the extent that Merritt complains about testimony about Harris

having shared a cell with him, Harris already had testified to that

                                 16
without objection on redirect examination.

     The only other testimony by Harris about which Merritt

complains involves Harris’s subjective assessment of whether the

stabbing was a “big deal,” which seems unlikely to have prejudiced

Merritt’s case given the objective details of the stabbing. And to the

extent that the prosecutor made gratuitous comments to which

Merritt objected, statements or questions by counsel are not

evidence, as the trial court instructed the jury. See Elkins v. State,

 (3) (

) (2019). Thus, it is highly

probable that none of the objected-to testimony by Harris or

comments by the prosecutor contributed to the verdict, and any

abuse of discretion was harmless. See Calmer v. State, 

 (2) (c) (

) (2020) (nonconstitutional error is harmless

when it is highly probable that the error did not contribute to the

verdict).7


     7  Our conclusion remains the same even if we consider the harm
resulting from the objected-to testimony or comments cumulatively with any
prejudice caused by counsel’s allegedly deficient handling of Sergeant
Dahnke’s testimony about Bradley’s statements to him. See State v. Lane, 

 (1) (

) (2020).
                                    17
     4. Finally, Merritt argues that the trial court erred in refusing

to instruct the jury that Merritt had no duty to retreat and on

voluntary manslaughter. We disagree.

     (a) Merritt made a written request for a jury charge explaining

that a defendant need not necessarily retreat before justifiably using

force, and at the charge conference his counsel gave a brief

explanation as to why she had requested that charge. But Merritt

did not object to the omission of the charge after the trial court

instructed the jury. “[T]he failure to object to the charge as given

precludes appellate review ‘unless such portion of the jury charge

constitutes plain error which affects substantial rights of the

parties.’” White v. State, 

 (2) (

) (2012)

(quoting OCGA § 17-8-58 (b)); see also Williams v. State, 

 (2) (

) (2019).

     Merritt’s claim fails because it was not error to refuse to give

the instruction. See Morris v. State, 

 (V) (

) (2018) (citing State v. Kelly, 

 (2) (a) (

) (2011)) (where an alleged error regarding a jury instruction is

                                 18
not affirmatively waived, reversal is authorized under plain error

review if the instruction was erroneous, the error was obvious, the

instruction likely affected the outcome of the proceedings, and the

error seriously affects the fairness, integrity or public reputation of

judicial proceedings). “Where self-defense is the sole defense, and

the issue of retreat is raised by the evidence or placed in issue, the

defense is entitled to a charge on the principles of retreat.” White,

 (2) (citation and punctuation omitted). But Merritt

points to no evidence raising an issue as to why he did not leave the

gas station when Taylor arrived. Merritt did not testify at trial, and

he does not identify any point where detectives questioned him as to

why he did not leave the gas station before shooting Taylor. Merritt

argues only that the “theme” of the State’s case was that Merritt

came to the gas station that morning to exact revenge by killing

Taylor and that this implied Merritt should not have been at the gas

station that morning, despite it being a place that he frequented.

Indeed, the jury heard evidence that Merritt returned to the gas

station with plans to kill Taylor. But evidence that a defendant goes

                                  19
to a location with malicious intentions is not evidence raising an

issue of retreat. See 

 (issue of retreat was not raised by the

evidence where appellant claimed that his actions of approaching

victim and stabbing him were justified because victim had

“tortured” him earlier that day, and appellant was not questioned at

trial as to why he did not leave the scene (punctuation omitted));

Higginbotham v. State, 

 (4) (

)

(2010) (no error in failure to instruct on no duty to retreat where

appellant came to victim’s apartment and fought with victim before

shooting him, and appellant was not questioned as to why he did not

leave the scene). The trial court’s failure to instruct the jury on no

duty to retreat is not a basis to reverse Merritt’s convictions.

     (b) Merritt also made a written request for a charge on

voluntary manslaughter. But, again, Merritt did not object to the

omission of that instruction from the jury charge that the trial court

eventually gave. Thus, we will review the failure to charge on

voluntary manslaughter only for plain error. See White, 

 (2). Merritt’s claim fails because there was no error, plain or

                                  20
otherwise, in the trial court’s refusal to give a voluntary

manslaughter instruction.

     A charge on voluntary manslaughter is warranted where there

is slight evidence showing that the accused was so excited that he

“reacted passionately rather than simply in an attempt to defend

himself.” Jackson v. State, 

 (2) (

)

(2017) (citation and punctuation omitted). Evidence of an

“antagonistic relationship with the victim, even to the extent it

involved physical confrontations,” is not sufficient to authorize a

charge on voluntary manslaughter. Johnson v. State, 

 (2) (

) (2015); see also Cochran v. State, 

 (2) (c) (

) (2019). This is especially true

when there is a “lengthy interval between the past altercations and

the killing.” Johnson, 

 (2); see also Barron v. State,

 (2) (

) (2015); Howard v. State, 

 (4) (

) (2011). Moreover, “neither fear that

someone is going to pull a gun nor fighting are the types of

provocation which demand a voluntary manslaughter charge.”

                                

 Ga. at 737 (3).

     Here, there was no evidence to support a charge on voluntary

manslaughter. Evidence of the antagonistic relationship between

Merritt and Taylor does not show that Merritt was provoked by a

sudden, irresistible passion when he shot Taylor. And several hours

passed between the previous fight and the shooting, ample time to

cool any passions heated by the earlier altercation. Merritt’s actions

on the day of the shooting further demonstrate that he was rational

and calculating, not acting in the heat of passion. After the fight,

Merritt went home to get his gun and, once there, discussed the

issue with his sister. Merritt and his sister then drove around the

area in search of Taylor, and Merritt returned to the gas station

when the search was unfruitful. There is no evidence that Taylor did

or said anything to provoke Merritt’s passions just before the

shooting; rather, the evidence showed that Taylor did not have a

weapon or other object in his hand when he approached Merritt, and

that Merritt did not give Taylor a chance to say anything before he

began chasing Taylor with a gun. The trial court did not err in

                                 22
refusing to charge the jury on voluntary manslaughter. Compare

Barron, 297 Ga. at 708 (2) (no error in failing to charge on voluntary

manslaughter where defendant took the time after alleged

provocation to obtain a weapon, discuss issue with his cellmate, and

then go in search of victim); Jones v. State, 

 (2)

(

) (2015) (trial court did not plainly err in failing to

instruct on voluntary manslaughter despite evidence that gang

members may have threatened the appellant with a gun and a taser

the night before the shootings, as trial court could determine as a

matter of law that a one-day interval between possible provocation

and killings was “sufficient for the voice of reason and humanity to

be heard” (citation and punctuation omitted)), disapproved on other

grounds by Veal v. State, 

 (5) (d) (

)

(2016); Francis v. State, 

 (2) (

) (2014)

(“Though there was evidence of ongoing marital difficulties between

[appellant] and [the victim] and past acts of violence committed by

[the victim] against [appellant], there was no evidence of any specific

provocation at or around the time of the murders such as would

                                  23
generate the sudden and irresistible passion necessary to support a

conviction for voluntary manslaughter.” (citation and punctuation

omitted)); with Scott v. State, 

 (2) (

) (2012) (trial court erred by not instructing on voluntary

manslaughter where victim taunted defendant about molesting the

defendant’s niece just before the shooting); Coleman v. State, 

 (1) (

) (1986) (court erred by refusing to

charge on voluntary manslaughter where there was evidence that

killing immediately followed violent dispute about victim’s

involvement with another man).

     Judgment affirmed. All the Justices concur, except Warren, J.,
not participating.



                      Decided November 16, 2020.

     Murder. Muscogee Superior Court. Before Judge Smith.
     John M. Shelnutt, for appellant.
     Julia F. Slater, District Attorney, Wesley A. Lambertus,
Frederick Lewis, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, Mark
S. Lindemann, Assistant Attorney General, for appellee.


                                 24