Pope v. State

¶1In the Supreme Court of Georgia

¶2 Decided: May 17, 2021

¶3 S21A0321. POPE v. THE STATE.

¶4 WARREN, Justice.

¶5 Chauncey Arthur Pope was convicted of malice murder,

¶6possession of a firearm during the commission of a felony, and

¶7possession of a firearm by a convicted felon in connection with the

¶8shooting death of Derrick Lamar Brooks. 1 On appeal, Pope’s sole

¶9 1 Brooks was shot on December 14, 2014, and died on February 26, 2015. A Fulton County grand jury first returned an indictment in this case in 2015, but on March 11, 2016, the grand jury re-indicted Pope for malice murder, felony murder predicated on aggravated assault, felony murder predicated on possession of a firearm by a convicted felon, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. At a jury trial in May 2018, Pope was found guilty on all counts. The trial court sentenced Pope to serve life in prison for malice murder, a consecutive term of five years for possession of a firearm during the commission of a felony, and a concurrent term of five years for possession of a firearm by a convicted felon. The felony murder counts were vacated by operation of law, and the trial court merged the aggravated assault count for sentencing purposes. On May 23, 2018, Pope timely filed a motion for new trial, which new counsel amended on October 17, 2019. The trial court denied the amended motion on September 14, 2020. That same day, Pope filed a notice of appeal. The case was docketed in this Court to the term beginning in contention is that his trial counsel provided ineffective assistance by

¶10failing to request a pre-trial immunity hearing. We conclude that

¶11Pope’s trial counsel was not constitutionally deficient and affirm

¶12Pope’s convictions.

¶13 The evidence presented at Pope’s trial showed the following. 2

¶14On the night of December 14, 2014, a crowd of “over ten” people,

¶15some of whom were drinking and gambling, were at an “after-hours

¶16spot” at a “recording studio” in Atlanta. Angelita Hixon testified

¶17that she was at the studio that night and recalled seeing Brooks and

¶18Pope arguing by the pool table. It appeared that the two were

¶19arguing over a dice game, though the altercation did not get

¶20physical. Following the argument, someone suggested that Hixon

¶21give Brooks a ride home, something Hixon often did for her friends

¶22at the studio. Hixon went outside and got into her car, which was

¶23December 2020 and submitted for a decision on the briefs.

¶24 2Pope does not raise the sufficiency of the evidence on appeal. And under Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020), we no longer as a matter of course consider sufficiency of the evidence sua sponte in non-death penalty cases. 2 facing the front door of the studio. Brooks and Pope came out of the

¶25studio shortly after she did, still arguing. Hixon was reluctant to

¶26testify at trial about the shooting, but in a pre-trial statement to a

¶27detective, said that Pope shot Brooks in the knee and then stood over

¶28Brooks and shot him in the head. Moreover, an investigator who

¶29interviewed Hixon before trial testified that Hixon told him that, a

¶30few days after the shooting, Pope offered her money not to testify at

¶31trial against him. At trial, Hixon testified that Brooks was not

¶32armed on the night he was murdered.

¶33 Another witness at the studio that evening, Tiffany Lewis, saw

¶34Pope and Brooks talking near a pool table. Pope was upset with how

¶35close Brooks was standing to him, telling him to “back up off me.”

¶36Later that night, Lewis was in Hixon’s car and observed Pope,

¶37Brooks, and another man arguing near the front door. Lewis

¶38testified that Pope walked around the side of the building, and that

¶39a few minutes later, Brooks came outside and began shouting insults

¶40and racial epithets in Pope’s direction. Pope returned to the front of

¶41the building, which prompted Lewis to exit Hixon’s vehicle and head

¶42 3 inside to find help with the situation. As Lewis walked towards the

¶43door, she noticed Pope reach towards his side. Lewis heard two

¶44gunshots shortly after going inside the studio. Pope came back

¶45inside the studio and said, “Oh, hell no, what the f*** he done made

¶46me do”; “I told him not to f*** with me, I told him, I told him.” Lewis

¶47testified that she saw Pope with a gun that night, but that she never

¶48saw Brooks with one. She also did not see Brooks “pull anything

¶49from his side” or have “anything in his hands” and added that

¶50Brooks did not run at Pope or act “aggressive” toward him.

¶51 Pope testified at trial about his interactions with Brooks,

¶52claiming that they got into a disagreement while Pope was shooting

¶53dice. According to Pope, Brooks made some comments about Pope

¶54losing his dice game. Pope told Brooks to “watch out.” Brooks then

¶55got “belligerent,” and Pope told Brooks to “leave [him] alone.”

¶56Brooks, however, remained in Pope’s “personal space” and acted like

¶57he wanted “to fight.” As Pope tried to get back to his dice game,

¶58Brooks “trie[d] to sucker-punch” Pope. Pope, who had a gun, pulled

¶59it out and pointed it at the ground. Brooks told Pope to go ahead

¶60 4 and shoot, and Pope told Brooks to “leave me the hell alone.” At

¶61this point, the person who ran the studio approached Pope and

¶62Brooks and asked them what was happening. Pope went outside,

¶63where he tried to get into a friend’s pickup truck. The truck,

¶64however, was locked. Pope then walked back to the front door of the

¶65studio. Brooks was coming out the door, yelling at Pope, and opened

¶66a back door of Hixon’s car and acted like he was going to get in. Pope

¶67further claimed that Brooks threatened to “kill [him],” and that just

¶68as Pope told Brooks that Brooks should leave, Brooks charged at

¶69Pope. According to Pope, Brooks was holding one of his hands

¶70behind him, “like he’s concealing something.” Brooks was moving

¶71“pretty fast” and Pope was “petrified.” As Brooks got to within

¶72“arm’s length” of Pope, Pope shot Brooks twice. Pope then left the

¶73studio with a friend.

¶74 Brooks suffered gunshot wounds to his leg and head and was

¶75taken to a local hospital, where he later died. Law enforcement

¶76officers did not find a weapon on Brooks.

¶77 To prevail on a claim of ineffective assistance of counsel, a

¶78 5 defendant generally must show that counsel’s performance was

¶79deficient and that the deficient performance resulted in prejudice to

¶80the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695

¶81(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,

¶82356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a

¶83defendant must demonstrate that his attorney “performed at trial in

¶84an objectively unreasonable way considering all the circumstances

¶85and in the light of prevailing professional norms.” Romer v. State,

¶86293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466

¶87U.S. at 687-688. This requires a defendant to overcome the “strong

¶88presumption” that trial counsel’s performance was adequate.

¶89Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation

¶90and punctuation omitted). To carry the burden of overcoming this

¶91presumption, a defendant “must show that no reasonable lawyer

¶92would have done what his lawyer did, or would have failed to do

¶93what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d

¶94221) (2016). “In particular, decisions regarding trial tactics and

¶95strategy may form the basis for an ineffectiveness claim only if they

¶96 6 were so patently unreasonable that no competent attorney would

¶97have followed such a course.” Id. (citation and punctuation omitted).

¶98To satisfy the prejudice prong, a defendant must establish a

¶99reasonable probability that, in the absence of counsel’s deficient

¶100performance, the result of the trial would have been different. See

¶101Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her

¶102burden of proving either prong of the Strickland test, the reviewing

¶103court does not have to examine the other prong.” Lawrence v. State,

¶104286 Ga. 533, 533-534 (690 SE2d 801) (2010).

¶105 In his amended motion for new trial, Pope contended that trial

¶106counsel was constitutionally ineffective for failing to file an

¶107immunity motion before trial. See OCGA § 16-3-24.2 (“A person who

¶108uses threats or force in accordance with [certain statutes governing

¶109justification as a defense, including self-defense,] shall be immune

¶110from criminal prosecution therefor unless in the use of deadly force,

¶111such person utilizes a weapon the carrying or possession of which is

¶112unlawful by such person under Part 2 of Article 4 of Chapter 11 of

¶113this title.”). At the hearing on the motion for new trial, Pope’s trial

¶114 7 counsel testified that her primary defense theory was self-defense

¶115and that, because Pope was a convicted felon, she was “under the

¶116misimpression for a while” that she could not file an immunity

¶117motion, but that she “was disabused of that notion at some point”

¶118before trial.3 She then “determined that it wasn’t worth going in

¶119front of the [prosecutor]” with the defense theory before trial. Trial

¶120counsel also added that she did not think that the trial “judge would

¶121find it sufficiently compelling to grant . . . an immunity motion, and

¶122we just saved it for trial.”

¶123 Pope contends that it was objectively unreasonable for trial

¶124counsel not to move for immunity under OCGA § 16-3-24.2 in a self-

¶125defense case where, as here, the defendant intends to testify at trial.

¶126In his brief on appeal, Pope argues that because he “had to testify at

¶127 3 “Prior to 2014, a felon in possession of a firearm generally could not assert a claim for immunity from prosecution under OCGA § 16-3-24.2 for crimes involving the use of deadly force.” State v. Remy, 308 Ga. 296, 296 (840 SE2d 385) (2020). However, at the time of Pope’s crimes in December 2014, a felon like Pope, who was charged with possession of a firearm in violation of OCGA § 16-11-131, was “no longer categorically precluded by the final clause of OCGA § 16-3-24.2 from seeking immunity from criminal prosecution under that statute,” Remy, 308 Ga. at 297, and Pope’s status as a convicted felon would not preclude a finding of immunity as a matter of law. See id. at 300. 8 trial if he had any hope of acquittal on self-defense grounds,”

¶128(emphasis omitted) testifying before trial at an immunity hearing

¶129and gaining the potential benefit of forgoing a trial entirely “would

¶130have been strategically sound.”

¶131 But even if requesting an immunity hearing would have been

¶132a reasonable strategy, that does not mean that trial counsel’s

¶133different strategy was objectively unreasonable. See Lanier v. State,

¶134310 Ga. 520, 525 (852 SE2d 509) (2020) (“The fact that appellate

¶135counsel would have pursued the defense in different ways does not

¶136render trial counsel ineffective.”) (citation and punctuation omitted);

¶137Szorcsik v. State, 303 Ga. 737, 743 (814 SE2d 708) (2018) (“[W]hile

¶138other counsel, had they represented appellant, may have exercised

¶139different judgment, the fact that the trial counsel . . . made certain

¶140difficult decisions regarding the defense tactics to be employed with

¶141which appellant and his present counsel now disagree, does not

¶142require a finding that the representation below was so inadequate

¶143as to amount to a denial of effective assistance of counsel.”) (citation

¶144and punctuation omitted).

¶145 9  Pope has failed to show how his trial counsel’s strategic

¶146decision not to reveal the defense theory to the prosecutor before

¶147trial, and instead to wait and present Pope’s self-defense claim to

¶148the jury, was objectively unreasonable. Because Pope has not

¶149established that no competent attorney would have chosen not to

¶150pursue a pre-trial immunity hearing under the circumstances of this

¶151case, he has failed to show that his trial counsel’s performance was

¶152constitutionally deficient, and his claim fails. See Broxton v. State,

¶153306 Ga. 127, 138 (829 SE2d 333) (2019) (where trial counsel was not

¶154asked why he did not file a pre-trial immunity motion, his decision

¶155to forgo such a motion was presumed strategic because it “may be

¶156reasonable for trial counsel to forgo a pre-trial immunity motion so

¶157as to avoid subjecting his client to pre-trial cross-examination, or for

¶158counsel to elect to demonstrate self-defense to the jury, rather than

¶159to the judge”); Dent v. State, 303 Ga. 110, 119 (810 SE2d 527) (2018)

¶160(where “trial counsel testified that it was a strategic decision not to

¶161file . . . a [pre-trial] motion [for immunity from prosecution]

¶162inasmuch as he did not want to expose [defendant] to pre-trial cross-

¶163 10 examination from the State, thereby previewing [defendant]’s

¶164anticipated trial testimony, and that he chose to attempt to

¶165demonstrate self-defense to the jury, as opposed to the judge,”

¶166defendant “failed to demonstrate that his trial counsel’s tactical

¶167decision was unreasonable”).

¶168 Judgment affirmed. All the Justices concur.

¶169 11