¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2 In the Supreme Court of Georgia
¶3 Decided: February 21, 2023
¶4 S22A0893. EVANS v. THE STATE.
¶5 BOGGS, Chief Justice.
¶6 Appellant Jonathan Tavarus Evans challenges his convictions
¶7for malice murder and other crimes in connection with the shooting
¶8death of Jamirus Wright and the non-fatal shooting of Brandon
¶9Martin. Appellant’s only claim on appeal is that he was denied
¶10constitutionally effective assistance of counsel at trial due to his
¶11attorney’s failure to introduce into evidence footage from the initial
¶12responding officers’ body cameras containing statements by them
¶13that he claims would have lent support to his sole defense of
¶14justification. However, Appellant has not shown that his trial
¶15counsel’s failure to introduce such evidence was objectively
¶16unreasonable. Thus, he has failed to show that his counsel’s
¶17performance was constitutionally deficient, which is fatal to his claim. Accordingly, we affirm. 1
¶18 1. The evidence at trial showed the following. On Friday
¶19night, April 27, 2018, Martin visited Wright at Wright’s mother’s
¶20apartment in Augusta. The two men sat for hours on her patio
¶21drinking beers and talking about sports. At some point, their friend
¶22Angela Brooks, who lived in an adjacent building, stopped by.
¶23Wright and Martin eventually ran out of beer, and at around 3:00
¶24a.m. on the morning of Saturday, April 28, 2018, Wright, Martin,
¶25and Brooks walked from the apartment complex to a nearby
¶26convenience store. The trip took between five and ten minutes.
¶27 1 Wright and Martin were shot in the early morning hours of Saturday, April 28, 2018. On July 10, 2018, a Richmond County grand jury indicted Appellant for malice murder, felony murder, aggravated assault for shooting Martin, two counts of possession of a firearm during the commission of a felony, and possession of less than an ounce of marijuana. At a trial from March 3 to 6, 2020, the jury found Appellant guilty of all charges except for the marijuana possession count. The trial court sentenced Appellant to serve life in prison without the possibility of parole for malice murder and a total of 30 years consecutive for aggravated assault and the two firearm-possession convictions; the felony murder count was vacated by operation of law. On March 27, 2020, Appellant filed a motion for new trial, which he amended with new counsel on October 22, 2020, and again on May 13, 2021. The trial court held an evidentiary hearing on June 28, 2021, and entered an order denying the motion on January 14, 2022. Appellant filed a timely notice of appeal, and the case was docketed in this Court to the August 2022 term. The case was orally argued on November 8, 2022. 2 Surveillance footage from the convenience store showed Martin
¶28entering the convenience store at 3:07 a.m.; Wright and Brooks
¶29stayed outside and smoked a cigarette. Martin bought a 12-pack of
¶30beer and exited the store at 3:09 a.m. The three friends then walked
¶31back to the apartment complex, where Brooks went home while
¶32Wright and Martin resumed their positions sitting on Wright’s
¶33mother’s patio.
¶34 Appellant, who used to live in the same apartment complex as
¶35Wright’s mother and Brooks, had previously gotten into a physical
¶36altercation with Wright and Martin, and he spotted Martin inside
¶37the convenience store. At 3:10 a.m., approximately one minute after
¶38Martin exited the store, Appellant did the same. Appellant looked in
¶39the direction that Martin went before abruptly turning around and
¶40going back inside the store. He emerged from the store just 30
¶41seconds later with a pair of clear latex gloves in his hand and got
¶42into the driver’s seat of a black 2017 Honda Civic that was parked
¶43in front of the store. Appellant waited in the parked car for several
¶44minutes, and at 3:16 a.m., he drove to the apartment complex.
¶45 3 Martin testified that he saw Evans drive to a nearby building
¶46in the apartment complex and get out of his car. According to
¶47Martin, Evans then got back in his car, drove by the patio on which
¶48he and Wright were sitting, and parked his car in front of Wright’s
¶49mother’s apartment. Martin testified that Evans got out of his car,
¶50and started firing at Martin and Wright. Several rounds struck the
¶51iron railing in front of the patio and fragmented into shrapnel that
¶52ricocheted in all directions. Wright sustained multiple lacerations
¶53from the metal shrapnel, including one jacket fragment that sliced
¶54through the right side of his throat and severed his carotid artery,
¶55killing him. Martin was struck in the back of the leg, between his
¶56buttocks and the back of his knee, but he was able to crawl inside
¶57the apartment and call 911. Martin was in so much pain that he
¶58could not effectively communicate with the 911 operator, so he
¶59handed the phone to Wright’s mother, who was awakened by the
¶60gunfire and finished the call.
¶61 Later that same day, officers from the Richmond County
¶62Sheriff’s Office arrested Appellant at his girlfriend’s apartment after
¶63 4 using the convenience store surveillance footage to determine the
¶64license plate number of the car that Appellant had been driving.
¶65Appellant was taken into custody, where he was advised of his rights
¶66under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
¶67(1966), and agreed to speak to law enforcement officers after signing
¶68a written waiver of his rights. Investigator Lucas Grant, the lead
¶69investigator, interviewed Appellant, and a video recording of the
¶70interview was later played for the jury. In the interview, Appellant
¶71said that Wright and Martin saw him parked at the apartment
¶72complex and “talked s**t” to him and that Wright pointed a gun at
¶73him and said that he was going to shoot Appellant’s “b**ch a**.”
¶74Appellant admitted that Wright did not fire any shots at him but
¶75said that he was scared for his life and that he fired four shots from
¶76his rifle at Wright and Martin.
¶77 Although law enforcement officials found a black cell phone
¶78that belonged to Wright on the patio of the apartment, they found
¶79no gun or bullets on the patio or inside the apartment, and no
¶80evidence that any shots had been fired from those locations. Further,
¶81 5 Martin testified that neither he nor Wright had a firearm, and
¶82Wright’s mother testified that her son and Martin had never owned
¶83firearms. Brooks also testified that she did not see Martin with a
¶84gun that night and that Martin and Wright have “never been the
¶85type to carry a weapon.” Law enforcement officials recovered four
¶86bullet casings from the location from which Appellant fired at
¶87Wright and Martin, which was about 100 feet in front of Wright’s
¶88mother’s apartment. Forensic evidence showed that those casings
¶89were fired from Appellant’s SKS rifle, which a law enforcement
¶90official recovered from one of Appellant’s friends. At trial, the jury
¶91was instructed on the law of justification and self-defense
¶92 2. Appellant’s sole claim on appeal is that he was denied
¶93constitutionally effective assistance of counsel at trial. We disagree.
¶94 (a) As background, in an amended motion for new trial,
¶95Appellant contended that trial counsel was constitutionally
¶96ineffective by failing to present evidence of audio and video
¶97recordings made by the initial responding officers’ body cameras,
¶98which, according to Appellant, would have supported his claim of
¶99 6 self-defense.
¶100 At the motion for new trial hearing, Appellant introduced the
¶101body-camera recordings of several of the officers. The recordings
¶102were made before law enforcement officials became aware of
¶103Appellant’s role in the shooting and before evidence was discovered
¶104showing that Appellant had fired four shots toward Wright and
¶105Martin while standing about 100 feet away from the patio. In the
¶106recordings, the officers said that the bullets were not fired “from . . .
¶107outside” the apartment, but instead “came from the inside.” One
¶108officer said “[a]ll that sh*t happened inside,” and another said, “I
¶109think so too.” They also expressed concern that Martin “knows
¶110something and isn’t saying anything”; that “[m]aybe [Martin and
¶111Wright] shot each other”; and that Wright’s mother “had plenty of
¶112time to hide the guns.”
¶113 At the motion for new trial hearing, trial counsel testified that
¶114the defense at trial was that Wright and Martin “became verbally
¶115abusive” to Appellant and that Appellant thought that “one of the
¶116individuals was holding up what [Appellant] thought was a gun,”
¶117 7 prompting Appellant to fire in self-defense. Counsel added that he
¶118did not need any particular evidence to be able to argue to the jury
¶119that there was time, before law enforcement officials arrived at the
¶120scene, for someone in the apartment to hide a gun, and that
¶121“anybody can figure that out.” Trial counsel explained that because
¶122a black cell phone was found on the patio, he was able to present the
¶123defense that Appellant was justified in shooting because he had been
¶124threatened and because he either saw a firearm that had been
¶125hidden after the shooting or he saw an object that it was reasonable
¶126for him to think was a firearm. Furthermore, counsel testified that
¶127the body-camera recordings were made when the officers had just
¶128arrived at the scene and were “kind of spit-balling possibilities” and
¶129that he “can’t ask somebody, well, did this ever cross your mind,”
¶130adding that all he could “deal with is what the evidence is.” He also
¶131explained that the officers’ initial speculation that there may have
¶132shots fired from inside the apartment would not have been helpful
¶133to the defense because there was no forensic evidence that shots
¶134were fired from inside the apartment; because, in his statement,
¶135 8 Appellant said that Wright and Martin were outside of the
¶136apartment on the patio and did not fire shots at him; because the
¶137evidence at trial showed, consistent with Evans’s statement, that
¶138Wright and Martin were on the patio; and because, given the
¶139darkness that night and the fact that Appellant was located about
¶140100 feet from the apartment and at a lower elevation than the
¶141apartment, someone inside the apartment “would have never known
¶142that [Appellant] was even out there.” Further, counsel stated that
¶143presenting evidence of the body-camera recordings would not “have
¶144made a lot of sense given the entirety of the evidence” and did not
¶145“really . . . fit in with what our defense had to be.” In denying
¶146Appellant’s motion for new trial, the trial court concluded that trial
¶147counsel’s decision not to introduce the evidence was a strategic one
¶148and did not constitute constitutionally deficient performance.
¶149 On appeal, Appellant argues that trial counsel was
¶150constitutionally ineffective in failing to present evidence of the
¶151officers’ observations that shots were possibly fired from inside the
¶152apartment toward Appellant’s location.
¶153 9 (b) To establish that his trial counsel was constitutionally
¶154ineffective, Appellant was required to prove both deficient
¶155performance by counsel and resulting prejudice. See Strickland v.
¶156Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
¶157To show that his lawyer’s performance was deficient, Appellant had
¶158to demonstrate that the lawyer performed his duties in an
¶159objectively unreasonable way, considering all the circumstances and
¶160in the light of prevailing professional norms. See id. at 687-688. The
¶161law recognizes a “strong presumption” that counsel performed
¶162reasonably, and the defendant bears the burden of overcoming this
¶163presumption. See Strickland, 466 U.S. at 689. To carry this burden,
¶164Appellant must show that “no reasonable lawyer would have done
¶165what his lawyer did, or would have failed to do what his lawyer did
¶166not.” Washington v. State, 313 Ga. 771, 773 (873 SE2d 132) (2022)
¶167(cleaned up). Even when a defendant has proved that his counsel’s
¶168performance was deficient, he also must prove resulting prejudice
¶169by showing “a reasonable probability that, but for counsel’s
¶170unprofessional errors, the result of the proceeding would have been
¶171 10 different.” Strickland, 466 U.S. at 694. Moreover, “there is no reason
¶172for a court deciding an ineffective assistance claim . . . to address
¶173both components of the inquiry if the defendant makes an
¶174insufficient showing on one.” Id. at 697.
¶175 (c) Based on this record, Appellant has failed to prove that trial
¶176counsel’s performance was deficient. To begin, contrary to
¶177Appellant’s assertion, the body-camera recordings do not indicate
¶178that the responding officers thought that shots were fired from
¶179inside the apartment toward Appellant’s location some 100 feet
¶180away. They indicate only that the officers thought that the shots
¶181that hit Wright and Martin may have been fired from inside the
¶182apartment and that Wright and Martin may have been shooting at
¶183each other. Moreover, an attorney’s decisions “as to what witnesses
¶184and other evidence to present are a matter of trial strategy,” see
¶185Horton v. State, 310 Ga. 310, 328 (849 SE2d 382) (2020) (cleaned
¶186up), and such decisions will form the basis for an ineffectiveness
¶187claim “only if they were so patently unreasonable that no competent
¶188attorney would have followed such a course.” Washington, 313 Ga.
¶189 11 at 773 (cleaned up). Here, the record shows that trial counsel made
¶190a strategic choice to establish the facts needed to support Appellant’s
¶191self-defense claim by relying on Appellant’s statement that,
¶192although the victims did not shoot toward him, Appellant
¶193nevertheless acted in self-defense based on the victims’ verbal threat
¶194to him and Appellant’s perception that Wright was pointing a gun
¶195at him. Moreover, the defense as presented by counsel was
¶196consistent with the forensic evidence that no shots were fired from
¶197inside the apartment, with witnesses’ testimony that Martin and
¶198Wright were unarmed, and with Appellant’s own statement that the
¶199victims did not fire at him. On the other hand, the strategy that
¶200Appellant now contends that counsel should have adopted would
¶201have been inconsistent not only with the forensic evidence and
¶202witness testimony but also with Appellant’s own statement. Under
¶203these circumstances, Appellant has failed to overcome the strong
¶204presumption that counsel’s performance was objectively reasonable.
¶205See Davis v. State, ___ Ga. ___ (___ SE2d ___) (2022 WL 17813444,
¶206at *8) (Dec. 20, 2022) (holding that the defendant had failed to
¶207 12 overcome the strong presumption that trial counsel performed
¶208reasonably where the record showed that counsel made a strategic
¶209choice to present the defendant’s self-defense claim through cross-
¶210examination of a witness and not by calling an expert witness to
¶211testify); Birdow v. State, 305 Ga. 48, 49, 52-53 (823 SE2d 736) (2019)
¶212(holding that trial counsel did not perform deficiently in electing not
¶213to call a defense expert to help establish the defendant’s claim of
¶214self-defense and instead relying on cross-examination of a State’s
¶215witness to support that claim, particularly because the expert’s
¶216testimony would have contradicted a part of the defendant’s
¶217statement to law enforcement officers that formed the basis for his
¶218self-defense claim). Accordingly, Appellant’s claim of ineffective
¶219assistance fails.
¶220 Judgment affirmed. All the Justices concur.
¶221 13