310 Ga. 515
FINAL COPY
S20A1183. GARDNER v. THE STATE.
ELLINGTON, Justice.
A Ware County jury found Reggie Gardner guilty of felony
murder in connection with the shooting death of Franklin Wright.1
1 On July 28, 1995, a Ware County grand jury indicted Gardner for
malice murder (Count 1); felony murder predicated on aggravated assault by
shooting the victim with a handgun (Count 2); aggravated assault with intent
to murder (Count 3); possession of a firearm during the commission of a crime
(Count 4); discharge of a firearm on a public roadway (Count 5); and carrying
a pistol without a license (Count 6). Following a trial commencing on December
12, 1996, a jury found Gardner not guilty on Counts 1 and 3, but guilty on all
remaining counts. On December 19, 1996, the trial court sentenced Gardner to
life in prison on Count 2; to five years in prison on Count 4 (consecutive to
Count 2); and to twelve months in prison on Counts 5 and 6 (concurrent with
Count 2). On December 31, 1996, trial counsel filed a motion for a new trial
and a motion to withdraw. On March 18, 1997, the trial court clerk mailed
Gardner a copy of counsel’s motion to withdraw and the court order granting
it, along with an application for the appointment of new counsel. Gardner
returned the completed application on December 11, 2001. On February 8,
2002, the trial court appointed Gardner new counsel to pursue post-conviction
remedies. On March 31, 2005, counsel wrote a letter to the trial court, noted
that the reason for the delay in scheduling a hearing on Gardner’s motion for
a new trial was “primarily [counsel’s] fault,” and requested a hearing. Counsel
then filed an amended motion for a new trial more than 13 years later, on
December 17, 2018. Then, a third attorney — Gardner’s current appellate
counsel — filed an entry of appearance on November 7, 2019. On that same
day, he filed an amended motion for a new trial. The trial court held a hearing
on the motion and denied it in an order filed January 15, 2020. Gardner filed
a timely notice of appeal. The appeal was docketed to the August 2020 term
and submitted for a decision on the briefs.
Gardner appeals from the denial of his motion for a new trial,
contending that his trial counsel was ineffective because he failed to
request a jury instruction on voluntary manslaughter. As explained
more fully below, the trial court did not err in finding that counsel’s
performance was not constitutionally deficient because counsel
chose to present an “all-or-nothing” defense, which was reasonable
given that the evidence did not show the irresistible passion
resulting from serious provocation required to support a charge on
voluntary manslaughter. Therefore, we affirm.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial shows the following. Around 2:00 a.m. on
June 11, 1995, Gardner was driving in Waycross with his girlfriend,
Robyn Grayer. As he approached a stop sign, Gardner almost
collided with a bicycle ridden by Wright. Gardner stopped his car,
but remained seated inside. Wright followed Gardner’s car, flung his
bicycle to the ground, and then walked toward Gardner, shouting
obscenities. Announcing that he was unarmed, Wright challenged
Gardner to a fistfight. He lifted his shirt to show that he had no
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concealed weapon. According to Grayer, two or three other people
also began moving toward the car. Instead of driving away, Gardner
fired a handgun at Wright. As Wright turned to flee, Gardner fired
again, hitting Wright, who collapsed on the ground. Gardner drove
away. One witness called 911, and another hailed the responding
officer, who found Wright gasping for air and unable to speak. While
driving to Grayer’s house, Gardner threw his handgun from the car.
After officers arrested Gardner later that morning, Grayer showed
the officers where Gardner had disposed of his gun.
Wright died at the hospital. The medical examiner testified
that a single bullet entered Wright’s right side, traveled upward,
pierced his heart, and lodged in the left side of his chest. A GBI
firearms expert determined that the bullet that killed Wright was
likely fired from Gardner’s gun.
On the morning of his arrest, Gardner gave a video-recorded
statement. During the 35-minute interview, Gardner first denied
that he was involved in the shooting. But he later admitted that he
shot Wright, whose hands were raised, only after Wright verbally
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threatened him and after Wright and others advanced toward him.
Gardner did not testify at trial.
Neither Gardner nor any of the eyewitnesses to the shooting
gave a statement or testimony demonstrating that Gardner shot
Wright as the result of a sudden, violent, and irresistible passion.
Grayer testified that Wright was responsible for the near collision
and that Gardner apologized to Wright, even though he was not at
fault. She testified that Wright was the angry party, not Gardner.
Wright threw down his bicycle and approached Gardner’s car
shouting obscenities and threatening to kill Gardner and his
brothers. She said that Gardner fired at Wright only after Wright
put them in fear of an assault. She testified that Gardner acted in
self-defense, and fired at Wright because it “looked like [Wright] was
about to pull something out of his pocket.”
In addition to Grayer’s testimony, the State offered the
testimony of four other eyewitnesses. William Nelson, who was in a
nearby car with his brother, Brett Nelson, testified that he saw
Wright pedal rapidly toward Gardner’s car, throw his bicycle down
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violently, and walk toward Gardner’s car shouting obscenities at
Gardner, who did not respond. Then he heard gunshots. Brett
testified that he saw Wright throw his bicycle down, shout at and
challenge Gardner to a fight, and then Gardner fired two shots from
his car while Wright’s hands were raised. Zachris Carter, a friend of
Wright’s, testified that Wright did not chase after Gardner’s car.
Rather, Gardner simply shot Wright when Wright walked toward
Gardner’s car. He said that he did not know whether Gardner and
Wright had argued. Regina James, who was acquainted with both
Gardner and Wright, testified that she saw Wright walk toward
Gardner’s car. Wright lifted his shirt and said that he had no
weapon. She heard Wright challenge Gardner to a fight. Seconds
later, she heard gunshots.
Gardner does not contest the legal sufficiency of the evidence
supporting his convictions. Nevertheless, in accordance with this
Court’s general practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial and summarized
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above was sufficient to authorize a rational jury to find Gardner
guilty beyond a reasonable doubt of the crimes for which he was
convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (
99 SCt 2781,
61 LE2d 560) (1979).2
2. Gardner contends that his trial counsel was constitutionally
ineffective because he failed to request a jury charge on voluntary
manslaughter as a lesser offense of murder.3 He argues that the trial
court erred in denying his motion for a new trial on this ineffective
assistance ground because a reasonable attorney would have
concluded from the evidence that a self-defense strategy was
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
term of court that begins in December 2020. See Davenport v. State, 309 Ga.
385, 391-392 (4) (
846 SE2d 83) (2020). The Court began assigning cases to the
December term on August 3, 2020.
3 OCGA § 16-5-2 (a) provides:
A person commits the offense of voluntary manslaughter
when he causes the death of another human being under
circumstances which would otherwise be murder and if he acts
solely as the result of a sudden, violent, and irresistible passion
resulting from serious provocation sufficient to excite such passion
in a reasonable person; however, if there should have been an
interval between the provocation and the killing sufficient for the
voice of reason and humanity to be heard, of which the jury in all
cases shall be the judge, the killing shall be attributed to deliberate
revenge and be punished as murder.
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unreasonable and, instead, pursued a defense based on serious
provocation and requested a charge on voluntary manslaughter.4
For the following reasons, we find no merit to this claim of error.
To establish that his trial counsel was constitutionally
ineffective, [Gardner] must prove both deficient
performance by counsel and resulting prejudice. See
Strickland v. Washington, 466 U. S. 668, 687 (
104 SCt
2052, 80 LE2d 674) (1984). To show that his lawyer’s
performance was deficient, [Gardner] must demonstrate
that the lawyer performed his duties in an objectively
unreasonable way, considering all the circumstances and
in the light of prevailing professional norms. See id. at
687-690. This is no easy showing, as the law recognizes a
“strong presumption” that counsel performed reasonably,
and [Gardner] bears the burden of overcoming this
presumption. Id. at 689. To carry this burden, he must
show that no reasonable lawyer would have done what his
lawyer did, or would have failed to do what his lawyer did
not. See Humphrey v. Nance, 293 Ga. 189, 192 (
744 SE2d
706) (2013). In particular, “decisions regarding trial
tactics and strategy may form the basis for an
ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have
followed such a course.” Reed v. State, 294 Ga. 877, 882
(757 SE2d 84) (2014).
Davis v. State,
299 Ga. 180, 182-183 (2) (
787 SE2d 221) (2016).
4 To authorize a jury instruction, there need only be slight evidence at
trial supporting the theory of the charge. State v. Newman, 305 Ga. 792 (
827
SE2d 678) (2019).
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At the hearing on Gardner’s motion for a new trial, trial
counsel testified that he was admitted to the Georgia Bar in 1979,
had tried several murder cases, and was once certified to try death
penalty cases. He testified that, in 1995, it was his practice to obtain
discovery, analyze the State’s evidence, and discuss the case with
his client. He recalled assessing the State’s case and testified that
he did not see evidence that Gardner acted out of the type of passion
sufficient to support a voluntary manslaughter defense. Rather,
based on Gardner’s statement and Grayer’s testimony, counsel
believed that Gardner’s best defense was self-defense. Counsel
further testified that he elected not to request a voluntary
manslaughter instruction for two reasons: (1) he did not see evidence
to support such a charge; but (2) even if he had, he chose to pursue
an “all-or-nothing” approach to his client’s defense. Counsel
explained that, “if you give a jury an option [to find the defendant
guilty of a lesser offense,] they’ll take it usually,” and he “didn’t want
that option in this case” because he “thought it was straight out self-
defense. [Wright] threw his bicycle down and he was going [after
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Gardner].” Gardner did not testify at the motion for a new trial
hearing, and the record contains no evidence that he disagreed with
trial counsel’s defense strategy.
“Decisions about which defenses to present and which jury
charges to request are classic matters of trial strategy, and pursuit
of an all-or-nothing defense is generally a permissible strategy.”
(Citations omitted.) Velasco v. State, 306 Ga. 888, 893 (3) (b) (
834
SE2d 21) (2019). See also Blackwell v. State,
302 Ga. 820, 824-825
(3) (
809 SE2d 727) (2018) (“The decision not to request a jury charge
on a lesser included offense in order to pursue an ‘all-or-nothing’
defense is a matter of trial strategy.” (citation and punctuation
omitted)). Here, trial counsel testified that he met and consulted
with Gardner before trial, that he investigated the case, and that a
key eyewitness testified Gardner acted in self-defense. Accordingly,
counsel decided to pursue a justification defense. Trial counsel did
not act unreasonably in deciding to pursue only the defense of self-
defense because that defense was consistent with Grayer’s
testimony and other trial evidence, and there was a dearth of
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evidence supporting a defense based on voluntary manslaughter.5
See Blackwell, 302 Ga. at 825-826 (3) (holding that trial counsel,
who pursued an all-or-nothing justification defense, was not
deficient for failing to request a voluntary manslaughter charge,
because he did not believe the evidence supported that charge and
because the defendant consistently maintained that he acted in self-
defense). Gardner has not demonstrated that counsel’s defense
strategy was unreasonable given the evidence in this case.
Because Gardner has not shown that counsel’s performance
was constitutionally deficient, as required by Strickland, the trial
5 We note that,
[w]hile it is true that jury charges on self-defense and voluntary
manslaughter are not mutually exclusive, the provocation
necessary to support a charge of voluntary manslaughter is
different from that which will support a claim of self-defense. The
distinguishing characteristic between the two claims is whether
the accused was so influenced and excited that he reacted
passionately rather than simply in an attempt to defend himself.
Only where this is shown will a charge on voluntary manslaughter
be warranted.
(Citation and punctuation omitted.) Ngumezi v. State, 300 Ga. 764, 767 (2) (
798
SE2d 229) (2017). See also Williams v. State,
306 Ga. 717, 721 (2) (
832 SE2d
805) (2019). Here, “[a]t best, [the] evidence show[ed] that [Gardner] was
attempting to repel an attack, not that he was so angered that he reacted
passionately.” Williams,
306 Ga. at 721 (2).
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court did not err in denying Gardner’s motion for a new trial on this
ineffective assistance of counsel ground.
Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Peterson, Bethel, and McMillian, JJ., concur. Warren, J., not
participating.
DECIDED DECEMBER 7, 2020.
Murder. Ware Superior Court. Before Judge Gillis.
Timothy C. Head, Jr., 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,
Michael O. Oldham, Assistant Attorney General, for appellee.
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