Wright v. State

FINAL COPY


                S22A1117. WRIGHT v. THE STATE.


     BOGGS, Chief Justice.

     Appellant Walter Russell Wright challenges his conviction for

felony murder in connection with the shooting death of Oletha

Brady. Appellant contends that the evidence was legally insufficient

to support his conviction, that the trial court committed plain error

in instructing the jury on good character evidence, and that he was

denied the effective assistance of counsel when counsel failed to

object to that instruction. We conclude that the evidence was

sufficient; that the instruction on good character evidence, which

tracked the pattern jury instruction in effect both then and now, was

not erroneous; and that Appellant’s counsel did not perform

deficiently in failing to make a meritless objection to the instruction.

Accordingly, we affirm.1


     1 The crime was committed on May 13, 2017. On August 3, 2017, a Coffee
      1. Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. On May 13, 2017, at 12:50

a.m., a Coffee County 911 operator received a “hang-up” call and

called the number back; it rang four times before Appellant

answered. Appellant told the operator that Brady shot herself with

his gun and that he did not know how she got it because he wore it

“by his foot.” Sheriff’s deputies responded to Brady’s home within

ten minutes of the 911 call. When Appellant opened the door to

Brady’s home, the deputies saw Brady lying face-up on the living

room floor with a gunshot wound to her torso and a Taurus .38

Special revolver on the floor near her body. The .38 Special

contained four live rounds and one fired shell. Appellant told one of

the deputies that he and Brady were having sex on the couch when


County grand jury indicted Appellant for malice murder and felony murder
based on aggravated assault with a deadly weapon. At a trial from January 15
to 18, 2019, the jury found him not guilty of malice murder but guilty of felony
murder. On January 30, 2019, the trial court sentenced Appellant to serve life
in prison without the possibility of parole. Appellant filed a motion for new
trial on February 28, 2019, which he amended with new counsel on November
15, 2021. The trial court held an evidentiary hearing on March 18, 2022, and
denied the motion on April 11, 2022. Appellant filed a timely notice of appeal,
and the case was docketed in this Court to the August 2022 term and submitted
for a decision on the briefs.
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the gun that was in his ankle holster “went off.” The deputy observed

the empty gun holster strapped to Appellant’s ankle. Appellant also

stated at the scene that while he and Brady were having sex on the

couch, Brady got his gun and shot herself. A bullet was later

recovered from a blood-stained couch cushion.

     At trial, a paramedic who arrived at Appellant’s home shortly

after the deputies arrived testified that Brady was wearing a

nightgown and that her body was cold to the touch, her skin was

turning gray, she had no pulse, and she was not breathing. The

paramedic further testified that she had never seen a body that was

cold to the touch and with graying skin within 15 minutes after an

injury had occurred. A GBI forensic firearms examiner testified that

the .38 Special found next to Brady’s body would not fire “without

the trigger being pulled and held to the rear.”

     The medical examiner who performed the autopsy on Brady

was admitted as an expert in forensic pathology and testified at trial

as follows. The cause of death was a gunshot wound to the torso,

which entered the center of Brady’s chest just below the breastbone

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and exited through her back. When the gun was fired, it was

anywhere from a few inches to three feet away from Brady. The

medical examiner concluded that the manner of death was homicide

rather than accident or suicide, based on her experience as a medical

examiner and her examination of multiple gunshot wound cases

involving homicide, accident, and suicide.

     After being taken into custody, Appellant waived his rights

under Miranda v. Arizona, 

 (

, 16 LE2d 694)

(1966), and was interviewed twice by law enforcement officers. The

interviews were video-recorded and played for the jury. According to

Appellant, he and Brady lived next to each other and had been in an

on-and-off relationship for six years, but the relationship had ended.

On the evening of the shooting, Appellant was outside his home

when Brady walked over and invited him to her home. Appellant

went to Brady’s home, and the two began drinking and talking about

Appellant’s relationships with other women. According to Appellant,

he was involved with three other women and these other

relationships were “causing issues.”

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     Appellant then provided three conflicting accounts of Brady’s

death. In one version that he told, Brady wanted to have sex, but he

declined because he was involved with someone else; he then went

to the bathroom; and when he came out, he heard a pop and saw

Brady lying on the living room floor with a gunshot wound. In the

second version, he and Brady were having sex on the couch when

the gun in his ankle holster discharged. In Appellant’s final version,

he was sitting on the floor in the living room taking his shoes off

when he removed the gun from his ankle holster and he saw that

the gun was cocked; he attempted to lower the hammer, but the gun

accidentally discharged; and Brady, who was standing in the

kitchen behind him, was struck by the bullet. Appellant elected not

to testify at trial, but he called three witnesses who testified that he

had a reputation for peacefulness, honesty, and abiding by the law.2

     2. Appellant contends, in conclusory terms, that the evidence

at trial failed to prove beyond a reasonable doubt either that he


     2 OCGA §§ 24-4-404 (a) (1) and 24-4-405 (a) authorize a criminal
defendant to offer evidence of a pertinent trait of character by presenting
testimony as to the defendant’s reputation for that trait.
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killed Brady or that he did so with the requisite criminal intent. We

disagree.

     Appellant’s sole conviction is for felony murder, which does not

require proof of intent to kill; the State needed only to prove that the

defendant possessed the criminal intent to commit the underlying

felony — here, aggravated assault. See Mathews v. State, 

 (

) (2022). When properly viewed in the light

most favorable to the verdicts, the evidence presented at trial and

summarized above was sufficient as a matter of constitutional due

process to authorize a rational jury to find Appellant guilty beyond

a reasonable doubt of felony murder through the commission of

aggravated assault with a deadly weapon. See Jackson v. Virginia,

 (

, 61 LE2d 560) (1979). See also

Adkins v. State, 

 (

) (2022) (holding

that jury was free to reject as unreasonable the defense theory of

suicide where medical examiner testified that injury was not one

that typically would have been self-inflicted and that suicide was

unlikely); Mathews, 

 (stating that “[c]riminal

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intent is a question for the jury, and it may be inferred from that

person’s conduct before, during, and after the commission of the

crime” (citation and punctuation omitted)); Eberhart v. State, 

 (

) (2019) (holding that the jury was free

to reject a claim of accident and that whether the acts charged were

committed by accident was a jury question).

     3. Acknowledging that the plain error standard of OCGA § 17-

8-58 (b) applies because he raised no objection to the trial court’s

jury instruction on good character evidence, Appellant asserts that

the trial court erred in its instruction on good character evidence

because it failed to inform the jury that good character is a

substantive fact that in and of itself may create a reasonable doubt

as to a defendant’s guilt and lead to an acquittal. See OCGA § 17-8-

58 (b) (authorizing review of jury instruction for plain error even

though a defendant fails to object at trial and where the defendant

raises the issue on appeal). To establish plain error, Appellant

     must point to an error that was not affirmatively waived,
     the error must have been clear and not open to reasonable
     dispute, the error must have affected his substantial

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     rights, and the error must have seriously affected the
     fairness, integrity, or public reputation of judicial
     proceedings.

Armstrong v. State, 

 (

) (2020)

(citation and punctuation omitted). And if an appellant fails to

establish any one of these elements, his plain error claim fails. 

.

     The trial court instructed the jury as follows:

           [Y]ou have heard the evidence of the character of the
     defendant for particular traits, more specifically, honesty,
     peacefulness, and being law-abiding in an effort to show
     the defendant likely acted in keeping with such character
     or trait at pertinent times or with reference to issues in
     this case. This evidence has been offered in the form of
     opinions of other witnesses and their testimony as to the
     defendant’s reputation. You shall consider any such
     evidence, along with all the other — other evidence in
     deciding whether or not you have a reasonable doubt
     about the guilt of the defendant.

The trial court’s instruction substantially tracked the language of

the current pattern jury instruction set forth in Georgia Suggested

Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.37.10 (4th ed.




                                  8
2007; updated Aug. 2022).3 And we have previously rejected the

contention that this pattern charge is inadequate if it omits the

“substantive fact” language. Jackson v. State, 

(

) (2019) (holding that there was no clear error in

giving pattern charge on defendant’s good character without

additional language stating that “good character is a substantive

fact which itself creates reasonable doubt as to the defendant’s




      3 The suggested pattern jury instruction states as follows:

      You have heard evidence of the (character of the defendant)
      (character of the defendant for a particular trait, more specifically
      __________) in an effort to show that the defendant likely acted in
      keeping with such character or trait at pertinent times or with
      reference to issues in this case. This evidence has been offered in
      the form of (opinion of (an)other witness(es)) (reputation) (specific
      instances of conduct of the defendant showing such trait). You
      should consider any such evidence along with all the other
      evidence in deciding whether or not you have a reasonable doubt
      about the guilt of the defendant.
                                       ...
             Note: The committee feels the above charge is complete and
      adequate for the principle of Good Character. However, in view of
      State v. Hobbs, 

 (2010) (pre-new evidence code), in order
      to be safe, consider adding the following:
             (Good character is not just a witness credibility issue, nor is
      it an excuse for crime. However, you may consider it as weighing
      on the issue of whether or not the defendant is guilty of the charges
      in the indictment.)
Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.37.10
(4th ed. 2007; updated Aug. 2022).
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guilt”). Indeed, the year before Appellant’s trial, we held that an

instruction substantially similar to the current pattern jury charge

on good character “properly explained” how character evidence

ought to be considered by the jury and that there was no plain error

in giving the pattern charge without including the “substantive fact”

language. Williams v. State, 

 (

)

(2018). Accordingly, Appellant cannot establish that the alleged

error was clear and not open to reasonable dispute, and thus, his

claim of plain error fails.

     4. Finally, Appellant asserts that his trial counsel provided

constitutionally ineffective assistance in failing to object to the trial

court’s instruction on good character evidence. A convicted

defendant who claims that his attorney’s assistance was so defective

as to require reversal of his conviction must prove both that the

attorney’s performance was professionally deficient and that this

deficiency resulted in prejudice to his case. See Strickland v.

Washington, 

 (

, 80 LE2d 674) (1984).

To prevail on a claim of ineffective assistance, an appellant must

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satisfy both prongs of the Strickland test, and if the appellant’s

showing fails as to one prong, this Court need not examine the other

prong. 

.

     Appellant’s trial counsel testified at the motion for new trial

hearing that he did not object to the trial court’s instruction on good

character because he believed it was legally correct. As explained in

Division 3 above, the trial court properly instructed the jury on how

to consider the character evidence, and thus, an objection to the

instruction would have been meritless. And trial counsel does not

perform deficiently by failing to make a meritless objection. See

Martin v. State, 

 (

) (2020).

Accordingly, the claim of ineffective assistance of trial counsel fails.

     Judgment affirmed. All the Justices concur.




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                    Decided January 18, 2023.

     Murder. Coffee Superior Court. Before Judge Spivey.

     Darden Law Firm, Richard M. Darden; Robert L. Persse, for

appellant.

     George E. Barnhill, District Attorney, John A. Rumker,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Emily R. Polk, Assistant

Attorney General, for appellee.




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