¶1In the Supreme Court of Georgia
¶2 Decided: August 10, 2021
¶3 S21A0997. TOWNSEND v. THE STATE.
¶4 NAHMIAS, Chief Justice.
¶5 Appellant Brandon Townsend was convicted of two counts of
¶6malice murder in connection with the deaths of Krystal Spainhour
¶7and Judy Potts. He appeals, arguing only that his trial counsel
¶8provided ineffective assistance by not requesting a jury instruction
¶9on voluntary manslaughter as a lesser offense. Because Appellant
¶10has not shown that his trial counsel performed deficiently, we
¶11affirm. 1
¶12 1 The crimes occurred on January 9, 2019. In May 2019, a Whitfield County grand jury indicted Appellant for two counts each of malice murder, felony murder based on aggravated assault, aggravated assault, and aggravated battery. At a trial from September 9 to 12, 2019, the jury found Appellant guilty of all charges. The trial court imposed consecutive sentences of life in prison without the possibility of parole on the malice murder counts; the felony murder counts were vacated, and the aggravated assault and aggravated battery counts merged. Appellant filed a timely motion for new trial, which he later amended with new counsel. After an evidentiary hearing, 1. The evidence presented at Appellant’s trial showed the
¶13following. Appellant lived in Dalton with his friend and former co-
¶14worker Spainhour and her mother Potts on and off for several years.
¶15At 4:45 p.m. on January 8, 2019, Spainhour called 911. She told the
¶16operator that Appellant had been drinking and arguing with her and
¶17her mother. Potts then took the phone from Spainhour and said that
¶18Appellant had approached the two women “hollering and
¶19screaming.” Potts also said, “I have hit him in his face, and if he
¶20keeps it up, I might do it again.” A loud argument between
¶21Appellant, Potts, and Spainhour can be heard in the background
¶22throughout the audio-recorded call.
¶23 When a Whitfield County Sheriff’s deputy responded to the 911
¶24call, Potts told him that Appellant had screamed in her face and
¶25“backed her down” until she tripped over a chair, after which she
¶26slapped him. Appellant told the deputy that he was sitting in the
¶27living room when he heard Potts yelling at him through a door, and
¶28the trial court denied the motion in March 2021. Appellant then filed a timely notice of appeal, and the case was docketed to the August 2021 term of this Court and submitted for decision on the briefs. 2 upon opening the door, Potts slapped him two or three times and
¶29then he “backed her down” and she tripped over the chair. The
¶30deputy ultimately told Appellant to leave the house until things
¶31calmed down.
¶32 The next day, Spainhour went to care for an elderly family
¶33member. When Spainhour’s stepbrother drove her home at about
¶347:45 p.m., he saw Appellant inside the house. Around 3:00 a.m. the
¶35next morning, Appellant called the sheriff’s office and said, “I need
¶36to turn myself in.” A 911 operator called him back to gather more
¶37information, at which point he said, “I lost my mind earlier and I
¶38choked two ladies.” Appellant also told the operator that Spainhour
¶39had said something to him that “triggered” him.
¶40 When law enforcement officers arrived at the house, they found
¶41Spainhour lying dead on a couch, covered with a blanket, and Potts
¶42lying dead in her bed, also covered with a blanket. Both women had
¶43their faces severely beaten, their throats cut, and stab wounds to
¶44their abdomens. Appellant, who was described by deputies as “calm
¶45and cooperative,” was taken into custody.
¶46 3 During two custodial interviews, Appellant gave the following
¶47account of what led to Spainhour’s and Potts’s deaths. On the night
¶48of January 8, he had returned to the house, apologized for raising
¶49his voice, and was allowed back inside. While Spainhour was away
¶50caring for her family member the next day, Appellant drank alcohol,
¶51slept five or six hours, and at some point became angry and flipped
¶52over a coffee table in the living room. When Spainhour got home, she
¶53confronted him about his drinking and the table being overturned.
¶54Spainhour told Potts to “call the law,” at which point Appellant
¶55“snapped” and “lost his temper.” He grabbed Spainhour and began
¶56choking her on the living room floor. Potts tried to help Spainhour,
¶57and Appellant grabbed her and began choking her as well. Appellant
¶58choked both women at the same time until they stopped moving.
¶59Then he stomped on them, stabbed them, and cut their throats
¶60because he was unsure if they were alive and did not want them to
¶61“lay [sic] there and suffer.”
¶62 When Appellant was asked what made him “snap,” he
¶63responded: “I don’t even remember what [Spainhour] said, honestly,
¶64 4 but it’s not her fault. It’s me. I lost it. I’ve got no excuse.” He also
¶65said, “There really wasn’t no fighting. I choked them out.” Appellant
¶66also admitted that he moved Spainhour’s body to the couch and
¶67Potts’s body to the bed and changed his clothes before calling the
¶68sheriff’s office.
¶69 Appellant had cuts and scratches on his back, shoulders, neck,
¶70head, face, hands, and heel, as well as a knot on the top of his head
¶71and rug burns on his knees. Some of the marks appeared to come
¶72from fingernail scratches, and Spainhour had “debris” under her
¶73fingernails. When Appellant was asked if his injuries were the result
¶74of the women defending themselves, he answered, “Probably, yeah.”
¶75He said the knot on his head came from Potts striking him with a
¶76phone while she was fighting back. The cause of death for both
¶77victims was later determined to be manual strangulation, with blunt
¶78force injuries to the head and torso as significant contributing
¶79factors; the knife wounds were inflicted post-mortem.
¶80 At trial, the State also offered into evidence several pages of a
¶81notebook that Appellant wrote in before and after the killings. Some
¶82 5 passages appeared to describe the events of January 8 and 9,
¶83including: “I did that s**t. No appeals”; “Y’all slow as f**k retarded
¶84bird brains”; “I break y’all’s rules and beat you. Why, because y’all
¶85suck”; “Who goes and tattles, a dumbass”; “I wring that neck”; and
¶86“I’ll wring your god**mn neck.”
¶87 Appellant did not testify at trial. His defense was that he was
¶88insane at the time he killed Spainhour and Potts. Dr. Samuel Perri,
¶89a forensic psychologist with the Georgia Department of Behavioral
¶90Health and Developmental Disabilities, evaluated Appellant before
¶91trial and was called as an expert witness by the defense at trial. Dr.
¶92Perri testified that “given the nature of the offense, . . . I think there
¶93is a mental issue going on.” He also discussed reviewing a diagnostic
¶94exam that Appellant had completed in the past that listed
¶95prescriptions for the antidepressant drugs Zoloft, Effexor, and
¶96Wellbutrin, as well as Seroquel, an antipsychotic drug. Appellant’s
¶97counsel also pointed to his repeated declarations during the post-
¶98killing 911 call and in interviews that he had “lost his mind,” and
¶99argued that evidence presented about Appellant’s long-term use of
¶100 6 drugs and alcohol showed an attempt to self-medicate for underlying
¶101mental illness.
¶102 However, in a video recording of one interview that was played
¶103for the jury, Appellant said that he had not used methamphetamine
¶104for several months leading up to the killings. And Dr. Perri also
¶105testified that during the evaluation, Appellant said that he would
¶106know the difference between right and wrong, although at the time
¶107of the killings he was “not thinking right and wrong.” Dr. Perri also
¶108found no evidence of a delusional compulsion that would have
¶109“overmastered” Appellant’s will to have resisted committing the
¶110crimes. The trial court instructed the jury on the potential verdicts
¶111of not guilty, not guilty by reason of insanity, guilty but mentally ill,
¶112guilty but with an intellectual disability, and guilty, and those
¶113options were provided on the verdict form. The jury found Appellant
¶114guilty.
¶115 2. Appellant claims that his trial counsel provided ineffective
¶116assistance by failing to request a jury instruction on the lesser
¶117 7 offense of voluntary manslaughter. 2 To prevail on this claim,
¶118Appellant must show that his counsel’s performance was
¶119professionally deficient and that he suffered prejudice as a result.
¶120See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80
¶121LE2d 674) (1984). To establish deficient performance, Appellant
¶122must show that his lawyer performed his duties in an objectively
¶123unreasonable way, considering all of the circumstances and in light
¶124of prevailing professional norms. See id. at 687-690.
¶125 “This is no easy showing, as the law recognizes a ‘strong presumption’ that counsel performed reasonably, and Appellant bears the burden of overcoming this presumption. 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. 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.’”
¶126Velasco v. State, 306 Ga. 888, 892 (834 SE2d 21) (2019) (citation
¶127 2 In stating his claim in the enumeration of error section of his brief, Appellant says that his trial counsel also “failed to present evidence of passion and provocation,” but when Appellant restates his claim in the argument section, it does not include this language, and he makes no argument on this point. Thus, this issue is abandoned. See Supreme Court Rule 22; Thompson v. State, 304 Ga. 146, 153 (816 SE2d 646) (2018). 8 omitted). To prove prejudice, Appellant must demonstrate that
¶128there is a reasonable probability that, but for counsel’s deficiency,
¶129the result of the trial would have been different. See Strickland, 466
¶130U.S. at 694. If Appellant makes an insufficient showing on one part
¶131of the Strickland test, we need not address the other part. See id. at
¶132697; Velasco, 306 Ga. at 892.
¶133 Under Georgia law,
¶134 [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.
¶135OCGA § 16-5-2 (a). The trial court is required to grant a defendant’s
¶136request for a jury instruction on voluntary manslaughter if there is
¶137slight evidence to support the charge. See Johnson v. State, 297 Ga.
¶138839, 842 (778 SE2d 769) (2015). Appellant contends that a voluntary
¶139manslaughter instruction was supported by evidence showing that
¶140 9 he was provoked by Potts’s and Spainhour’s violence toward him,
¶141including the 911 call during which Potts said that she would strike
¶142Appellant again, the debris found under Spainhour’s fingernails,
¶143and his injuries.
¶144 “Decisions about which defenses to present and which jury
¶145charges to request are classic matters of trial strategy, and pursuit
¶146of an all-or-nothing defense is generally a permissible strategy.”
¶147Velasco, 306 Ga. at 893. In this case, both of Appellant’s trial
¶148attorneys testified at the hearing on the motion for new trial that
¶149they concluded that the evidence did not support a voluntary
¶150manslaughter theory. Appellant’s lead counsel also explained that
¶151he thought that pursuing a defense theory of not guilty by reason of
¶152insanity offered the best chance of success and worried that
¶153presenting a voluntary manslaughter theory would “water down”
¶154the insanity defense. Co-counsel added that when discussing
¶155possible defenses, Appellant said that he did not want to “put any
¶156blame on the victims.”
¶157 If there was any evidence to support a voluntary manslaughter
¶158 10 instruction (an issue we need not decide), it was very weak. 3
¶159Considering all of the circumstances, we cannot say that trial
¶160counsel’s strategic decision to pursue an insanity defense and not to
¶161request a voluntary manslaughter charge was patently
¶162unreasonable. See, e.g., Vann v. State, ___ Ga. ___, ___ (857 SE2d
¶163677, 680-681) (2021) (concluding that trial counsel did not perform
¶164deficiently by deciding not to request a voluntary manslaughter
¶165instruction where “[a] competent attorney could have assessed that
¶166a voluntary manslaughter defense was either unavailable or weak
¶167because the evidence did not show, or only questionably showed,
¶168 3 See Hudson v. State, 308 Ga. 443, 446 (841 SE2d 696) (2020) (explaining that “it is well established that words alone, regardless of the degree of their insulting nature, will not in any case justify the excitement of passion so as to reduce the crime from murder to manslaughter” (citation and punctuation omitted)); Johnson, 297 Ga. at 843 (explaining that evidence of the appellant’s “generally antagonistic relationship with the victim, even to the extent it involved [prior] physical confrontations, did not require a voluntary manslaughter charge”); Jones v. State, 296 Ga. 663, 666 (769 SE2d 901) (2015) (holding that “the trial court [could] determine, as a matter of law, that the one-day interval between that possible provocation and the killings was ‘sufficient for the voice of reason and humanity to be heard’ by Appellant, so that ‘the killing[s] shall be attributed to deliberate revenge and be punished as murder,’ OCGA § 16-5-2 (a),” and citing similar holdings where the interval was only “a few hours” and “three to four hours”), disapproved of on other grounds by Veal v. State, 298 Ga. 691, 703 (784 SE2d 403) (2016).
¶169 11 that [the defendant] had been seriously provoked,” but “did show, on
¶170the other hand, an opportunity for [the defendant] to cool down”);
¶171Velasco, 306 Ga. at 893-894 (holding that trial counsel did not
¶172perform deficiently by failing to request a voluntary manslaughter
¶173instruction, because there was a lack of evidence to support the
¶174instruction and the defendant maintained that he acted in self-
¶175defense). Thus, Appellant has failed to show that his trial counsel
¶176performed deficiently, and his claim of ineffective assistance of
¶177counsel fails.
¶178 Judgment affirmed. All the Justices concur, except Bethel, J., disqualified, and Colvin, J., not participating.
¶179 12