¶1NOTICE: 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.
¶2In the Supreme Court of Georgia
¶3 Decided: May 16, 2023
¶4 S23A0084. JONES v. THE STATE.
¶5 PINSON, Justice.
¶6 Bryan Jones was convicted of felony murder and other offenses
¶7in connection with a shooting that killed Dorian Drewery and
¶8injured Joshua Childs. 1 Jones now appeals, contending that (1) the
¶9trial court erred in giving a jury instruction on other-acts evidence
¶10 Jones was indicted in June 2018 by a DeKalb County grand jury for 1
¶11malice murder, felony murder, two counts of aggravated assault (one count as to Drewery and one count as to Childs), and one count of possession of a firearm during the commission of a felony. At the conclusion of a jury trial held September 23 to 27, 2019, Jones was acquitted of malice murder but found guilty on all remaining counts. Jones was sentenced on October 3, 2019 to life in prison without the possibility of parole for the felony murder count, plus a consecutive 20-year term for the aggravated assault of Childs and a consecutive 5-year term for the firearm-possession count. The remaining aggravated assault count merged into the felony murder count for sentencing purposes. Through new counsel, Jones filed a timely motion for new trial on November 1, 2019, which was amended on April 1, 2022. Following a hearing, the trial court denied the motion on June 8, 2022. Jones filed a timely notice of appeal on July 6, 2022. The appeal was docketed to the term of this Court beginning in December 2022 and was thereafter submitted for a decision on the briefs. under OCGA § 24-4-404 (b) when no such evidence was admitted at
¶12trial; and (2) trial counsel rendered constitutionally ineffective
¶13assistance in (a) agreeing to a stipulation that prejudiced Jones’s
¶14defense and (b) failing to request a jury instruction on voluntary
¶15manslaughter. But the trial court’s error in giving the other-acts
¶16jury instruction was harmless: among other things, the court
¶17omitted that oral instruction from the written instructions sent back
¶18with the jury; it properly instructed that other acts could be
¶19considered only if it was more likely than not that Jones had
¶20committed them, and because there was no evidence of such other
¶21acts, the jury could not have made that finding; and in any event,
¶22the instruction had little relevance to the central question of
¶23whether Jones’s use of deadly force was justified under the
¶24circumstances. As for the ineffective-assistance claims, the record
¶25shows that trial counsel’s decision to agree to the stipulation was the
¶26product of a reasonable strategic effort to prevent the State from
¶27offering potentially “devastating” rebuttal evidence. Similarly,
¶28counsel’s decision not to request a jury instruction on voluntary
¶29 2 manslaughter was reasonable given Jones’s desire to present an “all
¶30or nothing” justification defense and the fact that the evidence
¶31supporting voluntary manslaughter was thin. So Jones has failed to
¶32establish trial error or ineffective assistance, and we therefore
¶33affirm his convictions and sentences.
¶34 1. Drewery was shot and killed on the evening of March 17,
¶352018, at a gas station in Lithonia. It is undisputed that Jones was
¶36the shooter, and the central question in the case was whether the
¶37shooting was a justifiable act of self-defense.
¶38 The evidence at trial showed that Jones and Drewery were
¶39both bikers who frequented that particular gas station, which was a
¶40popular hangout for bikers and the site of two past altercations
¶41between the two men. The first happened around two weeks before
¶42the shooting: the men argued and shouted obscenities at each other,
¶43and as Jones prepared to drive away, Drewery smacked Jones. A
¶44witness to that incident testified that he heard Jones say to
¶45Drewery, “[I]f I do something to you, I’m going to make sure that
¶46you’re never seen again.”
¶47 3 The second incident happened on the afternoon of the shooting,
¶48when the men again got into an argument. A witness to that incident
¶49testified that he saw Jones and Drewery arguing with each other
¶50and then, as Jones walked away from Drewery, Jones said, “let me
¶51go cover myself. I’m going to go shoot this n****.”
¶52 Afterwards, Jones and Drewery approached the gas station
¶53security officer—off-duty DeKalb County police officer Marcus
¶54Brooks—about their altercation. Drewery told Officer Brooks that
¶55Jones had threatened to kill him, while Jones reported that he and
¶56Drewery had been having “an ongoing problem” related to
¶57“motorcycle rage” and that Drewery had recently slapped and
¶58threatened him. Officer Brooks wrote up a police report for both men
¶59for terroristic threats and told them to leave. Jones asked Officer
¶60Brooks to escort him to his bike because he was scared, but Officer
¶61Brooks declined.
¶62 The shooting happened around 8:30 p.m. that night. A group of
¶63bikers had gathered at the gas station, and Jones and Drewery both
¶64showed up. At some point, the men began arguing, and the
¶65 4 argument ended with Jones shooting Drewery. Drewery was shot
¶66four times: once in the back of his head, twice in his back, and once
¶67in his buttocks. Childs, a bystander, was shot once in the leg.
¶68 Eyewitnesses gave mostly similar accounts of the shooting, but
¶69they varied in certain respects. Witness Maurice Bonner testified
¶70that on the night of the shooting, he was at the gas station talking
¶71to Drewery when he saw Jones. Drewery said, “[T]here’s that b***h
¶72mother f**ker right there, he’s always running his mouth.” Witness
¶73Titus Rumph, who was standing with Bonner at the time, testified
¶74that Jones made an obscene gesture to Drewery. Both Bonner and
¶75Rumph testified that Drewery turned to Jones, and they began
¶76“trash talking.”
¶77 Bonner testified that Drewery called Jones “a punk” and “a
¶78b***h,” taunting that Jones was scared. Jones responded, “[D]o I
¶79look like I’m scared?” while raising his arms, revealing a gun in his
¶80waist belt. Jones, who had been headed toward the gas station’s
¶81convenience store, turned and started walking back toward his bike.
¶82Drewery continued the taunts, saying “[Y]ou’re scared, that’s why
¶83 5 you’re way over there. And if you ain’t scared, we can do something
¶84now.” Drewery started walking quickly toward Jones, still calling
¶85him names. Bonner did not see a gun on Drewery, but he “figured
¶86[Drewery] was going to try to hurt [Jones].” Jones turned toward
¶87Drewery, and then Bonner heard the gunshots. He estimated the
¶88men were 10 to 15 feet apart at the time.
¶89 Bonner also testified, on cross-examination, about a
¶90confrontation he saw at the same gas station in May 2017 between
¶91Drewery and a man named Joshua Booth, which began with “trash
¶92talking” and escalated into pushing. Booth pulled out a knife, and
¶93Drewery either pulled out or was handed a gun. Ultimately the
¶94situation was diffused. Bonner also testified that Drewery was
¶95“known to get violent.”
¶96 Witness Cornell Keith testified that he too was at the gas
¶97station and heard someone say, “I have these hands for you,” which
¶98got his attention. Keith turned to see Jones backing up, as if
¶99retreating, and Drewery walking toward him “in a boxing stance.”
¶100Keith saw Jones stop and pull out his gun; Jones did not rack the
¶101 6 gun, fire warning shots, or tell Drewery to back up before firing.
¶102 Witness James Grimsley testified that he saw Drewery
¶103walking toward Jones at a normal pace, with his hands open, and
¶104then saw Jones pull the gun out when the men were about five feet
¶105from one another. Drewery turned around to run, and then Jones
¶106began firing the gun. Afterward, Jones walked calmly to his bike.
¶107 Childs testified that he saw Jones arrive and make eye contact
¶108with Drewery. At some point, Childs saw the men “coming towards
¶109each other” and then heard gunshots. He was knocked to the ground
¶110by others who were diving down to avoid the shots, and then realized
¶111he had been shot in the leg.
¶112 Officer Brooks testified that he was inside the gas station when
¶113the shooting happened. He ran outside and approached Jones, who
¶114said, “[H]e charged at me.” Officer Brooks arrested Jones and took
¶115his gun; Jones was calm and compliant. Video footage from Officer
¶116Brooks’s body camera showed that, as Jones was being detained and
¶117handcuffed, Jones said Drewery had threatened him and “assaulted”
¶118him in the past. Officer Brooks testified that no weapons were found
¶119 7 on Drewery’s body.
¶120 The GBI firearms examiner testified that all the cartridge
¶121casings, bullets, and metal jacket fragments collected at the scene
¶122had been shot from Jones’s gun. The medical examiner testified that
¶123no soot or stippling appeared on Drewery’s clothes, meaning that the
¶124gun had been fired from an “intermediate or distant range.”
¶125 After the State rested, Jones’s counsel read to the jury a
¶126stipulation, prepared by the defense and agreed to by the
¶127prosecution, about the May 2017 incident between Drewery and
¶128Booth. The stipulation stated:
¶129 One: Zachary Wallace is a person who was involved in the motorcycle scene and knew both Bryan Jones and Dorian Drewery prior to March 17th, 2018.
¶130 Two: Zachary Wallace did not witness the incident at issue where Dorian Drewery was shot on March 17th, 2018.
¶131 Three: Zachary Wallace did witness an incident on May 29th, 2017 involving Joshua Booth and Dorian Drewery via Facebook live. Zachary Wallace saw the two parties arguing back and forth. He witnessed Joshua Booth with a knife. He witnessed Dorian Drewery with a gun. Dorian Drewery was making verbal threats to Joshua Booth.
¶132 8 Four: On a telephone conversation, Zachary Wallace told Bryan Jones what Zachary Wallace witnessed via Facebook Live. Joshua Booth with a knife and Dorian Drewery with a gun. Dorian Drewery was making verbal threats to Joshua Booth.
¶133 Five: During the same telephone conversation between Bryan Jones and Zachary Wallace, Bryan Jones told Zachary Wallace a) I’m not fixing to let nobody just be punking me and slapping me; b) if he approaches me, threatens me, if he comes to me again like he is going to try and fight me, slap me, or whatever, then I’m going to shoot. I am going to protect myself.
¶134The defense presented no other evidence.
¶135 2. Jones contends that the trial court erred by instructing the
¶136jury on evidence of “other acts” admitted under OCGA § 24-4-404 (b)
¶137(“Rule 404 (b)”)2. Before trial, the State served notice of its intent to
¶138offer Rule 404 (b) evidence in the form of pending criminal charges
¶139against Jones arising out of an alleged “road rage” incident. The trial
¶140court later ruled that the State could offer this evidence solely for
¶141the purpose of showing intent, knowledge, and absence of mistake.
¶142 2 Under that Code section, “[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 9 At trial, the State did not present the Rule 404 (b) evidence during
¶143its case-in-chief but considered presenting it during rebuttal, and
¶144during the charge conference, the Rule 404 (b) language was
¶145tentatively agreed to. Ultimately, the State did not present any
¶146rebuttal evidence, but the 404 (b) language was not removed from
¶147the jury charge. Thus, the trial court’s instructions to the jury
¶148included that instruction, which began by saying, “[T]he State has
¶149offered evidence of other crimes allegedly committed by the accused
¶150. . .”3 Although Jones’s counsel objected after the court gave the
¶151 3 The relevant portion of the charge reads as follows:
¶152 In order to prove its case in Counts One through Five, the State must show knowledge and intent and must negate or disprove mistake. To do this, the State has offered evidence of other crimes allegedly committed by the accused. You are permitted to consider that evidence only insofar as it may relate to those issues and not for any other purpose. You may not infer from such evidence that the defendant is of character that would commit such crimes. The evidence may be considered only to the extent that it may show the elements of [sic] the State is required to prove of the crimes charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose.
¶153 The defendant is on trial for the offense charged in this bill of indictment only and not for any other acts. Before you may consider any other alleged acts for the limited purpose stated, you must first determine whether it is more likely than not that the
¶154 10 instructions and asked for a curative instruction—and the State
¶155agreed—the trial court declined to give one, instead opting to delete
¶156the erroneous instruction from the written instructions sent back
¶157with the jury.
¶158 There is no question that the Rule 404 (b) portion of this
¶159instruction should not have been given, because the State did not
¶160present any evidence of alleged other crimes committed by Jones.
¶161See Rammage v. State, 307 Ga. 763, 767 (4) (838 SE2d 249) (2020)
¶162(“‘There must be at least slight evidence produced at trial to
¶163authorize a jury instruction.’”) (citation omitted). The question is
¶164whether this undisputed error was harmless or not.
¶165 “Even when we find error in a jury charge, we will not reverse
¶166 accused committed the other alleged acts. If so, you must then determine whether the acts shed any light on the elements of the offense for which the act was admitted in the crimes charged in the indictment in this trial.
¶167 Remember to keep in mind the limited use and the prohibited use of this evidence about other acts of the defendant.
¶168 By giving this instruction, the Court in no way suggest [sic] to you that the defendant has or has not committed any other acts, nor whether any such acts, if committed, prove anything. This is solely a matter for your determination. 11 when the error is harmless, that is, when it is highly probable that
¶169the instruction did not contribute to the verdict.” Jones v. State, 302
¶170Ga. 892, 897 (3) (810 SE2d 140) (2018) (citation and punctuation
¶171omitted). Accord Middleton v. State, 310 Ga. 365, 370 (3) (850 SE2d
¶172126) (2020). To figure out whether an instructional error was
¶173harmless, we assess it in the context of the instructions as a whole.
¶174See Jones, 302 Ga. at 897 (3) (assessing effect of arguably misleading
¶175instruction by reference to jury instructions in their totality). See
¶176also Johnson v. State, 312 Ga. 481, 490 (3) (863 SE2d 137) (2021)
¶177(noting that, in determining the impact of a challenged instruction,
¶178“we do not evaluate jury charges in isolation, but rather consider
¶179them as a whole”) (citation and punctuation omitted). And as with
¶180other trial errors, in assessing harm “we review the record de novo,
¶181and we weigh the evidence as we would expect reasonable jurors to
¶182have done so.” Middleton, 310 Ga. at 370 (3).
¶183 Under these standards, the instructional error here was
¶184harmless. First, the oral instructions told the jury it could consider
¶185evidence of other alleged crimes only if it found it more likely than
¶186 12 not that Jones committed such other crimes. Given that the State
¶187actually presented no evidence of other crimes, the jury could not
¶188have made the finding necessary to permit its consideration of any
¶189other alleged crimes. Nor is there any indication from the record that
¶190the jury was confused, either by the difference between the oral and
¶191written instructions or by the language of the other-acts instruction
¶192itself.
¶193 Further, the other-acts instruction had little to do with the
¶194case’s central question, which was whether the shooting was a
¶195justifiable act of self-defense. The jury was correctly instructed that
¶196it could find that Jones was justified in using deadly force only if he
¶197“reasonably believe[d] that such force [was] necessary to prevent
¶198death or great bodily injury to himself or a third person, or to
¶199prevent the commission of a forcible felony.” See OCGA § 16-3-21
¶200(a). It is not at all clear how a suggestion from the mistaken oral
¶201instruction that Jones had committed some undefined past crimes
¶202would have had any bearing on whether, at the time of the shooting,
¶203Jones reasonably believed that it was necessary to shoot Drewery in
¶204 13 order to protect himself from grave or mortal harm. See Lewis v.
¶205State, 291 Ga. 273, 278-279 (4) (731 SE2d 51) (2012) (giving of
¶206improper jury charge on reliability of eyewitness testimony was
¶207harmless given that eyewitness identification “did not play a
¶208significant role in the State’s case”).
¶209 Finally, the evidence against Jones was quite strong: it was
¶210undisputed that he shot the unarmed Drewery, without warning,
¶211from a distance of several feet, in the back. So any confusion over
¶212the oral instruction’s possible implication that Jones had committed
¶213some unknown past crimes was unlikely to have affected the jury’s
¶214determination on Jones’s guilt of the crimes against Drewery. See
¶215Jones, 302 Ga. at 897-898 (3) (any error in particular instruction was
¶216harmless within context of jury charge as a whole and in light of
¶217“very strong” evidence of defendant’s guilt).
¶218 For all of these reasons, we conclude that it is highly probable
¶219that the instructional error here did not contribute to the verdicts.
¶220 3. Jones next contends that his trial counsel rendered
¶221constitutionally ineffective assistance in two respects. To succeed on
¶222 14 a claim of ineffective assistance, a defendant must establish both
¶223that his counsel’s performance was deficient and that he was
¶224prejudiced as a result of that deficient performance. See Washington
¶225v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022) (citing
¶226Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
¶227674) (1984)).
¶228 To prove deficient performance, a defendant must establish
¶229that counsel “performed his duties in an objectively unreasonable
¶230way, considering all the circumstances and in the light of prevailing
¶231professional norms.” Washington, 313 Ga. at 773 (3) (citation and
¶232punctuation omitted). To overcome the “strong presumption” that
¶233counsel performed reasonably, the defendant must show that “no
¶234reasonable lawyer would have done what his lawyer did, or would
¶235have failed to do what his lawyer did not.” Id. (citation and
¶236punctuation omitted). To prove prejudice, a defendant must
¶237establish that there is a “reasonable probability that, but for
¶238counsel’s deficiency, the result of the trial would have been
¶239different.” Id. A reasonable probability is a probability “sufficient to
¶240 15 undermine confidence in the outcome” of the trial. Neal v. State, 313
¶241Ga. 746, 751 (3) (873 SE2d 209) (2022) (citation and punctuation
¶242omitted). An ineffective-assistance claim fails if the defendant fails
¶243to establish either deficient performance or prejudice. See
¶244Washington, 313 Ga. at 773 (3).
¶245 In reviewing a trial court’s ruling on an ineffective-assistance
¶246claim, we accept the trial court’s factual findings and credibility
¶247determinations unless they are clearly erroneous, but we
¶248independently apply the relevant legal principles to the facts. See
¶249Sullivan v. State, 301 Ga. 37, 40 (2) (799 SE2d 163) (2017).
¶250 (a) Jones first contends that his counsel rendered ineffective
¶251assistance by agreeing to the stipulation about Zachary Wallace’s
¶252account of Drewery’s encounter with Joshua Booth. Jones contends
¶253that by stipulating that Jones told Wallace he “was going to shoot”
¶254if Drewery approached, threatened, or tried to fight him, trial
¶255counsel needlessly put forth evidence that undercut his defense by
¶256suggesting he was primed to shoot Drewery, whether justified or
¶257not.
¶258 16 At the motion for new trial hearing, Jones’s trial counsel
¶259testified that entering into the stipulation was a strategic decision
¶260intended to avoid putting up any witnesses. That prevented the
¶261State from offering rebuttal evidence of the road rage incident,
¶262which counsel believed would have been “devastating” to the
¶263defense.4 Counsel testified that he and his co-counsel drafted the
¶264stipulation to include what they believed their witnesses would
¶265otherwise testify to. As to the part of the stipulation about Jones’s
¶266“I’m going to shoot” statement, counsel testified that he believed
¶267“that was the language we expected to come out, whether we called
¶268a live witness or . . . did it through a stipulation.” He also testified
¶269that at the time he believed the impact of that evidence would have
¶270been mitigated to some degree by the fact that Jones’s statement
¶271was made almost a year before the shooting. In denying Jones’s
¶272 4 The gist of this evidence was that, around seven months before Drewery’s shooting, Jones intentionally rammed his truck into the back of another vehicle and tried to run it off the road while brandishing a gun, ultimately causing an accident. According to the prosecutor, “at least” five witnesses would testify that Jones was “the aggressor” in the incident. At the time of the crimes here, Jones had been indicted for aggravated assault in connection with the road rage incident and had been released on bond. 17 motion for new trial, the trial court credited counsel’s testimony and
¶273concluded that the decision to enter into the stipulation was
¶274reasonable trial strategy.
¶275 We see no clear error in the trial court’s crediting of counsel’s
¶276testimony, and we conclude, as the trial court did, that agreeing to
¶277the stipulation was an objectively reasonable strategic decision by
¶278counsel. Counsel determined that it was important to highlight for
¶279the jury both that Drewery had brandished a gun in a past dispute
¶280related to “the motorcycle scene” and that Jones was aware of that
¶281incident. 5 Counsel determined that it would help Jones to do this
¶282through a stipulation rather than live testimony, because it would
¶283prevent the State from offering its “devastating” rebuttal evidence,
¶284and he surmised that to get the State to agree, the stipulation would
¶285have to include Wallace’s expected testimony in its entirety. We
¶286cannot say that no reasonable attorney would have made these
¶287determinations, and thus the decision to agree to the stipulation did
¶288 5 While Jones contends that Wallace’s testimony was unnecessary because Bonner had already testified about Drewery’s altercation with Booth, Bonner did not testify that Jones knew about the incident. 18 not amount to deficient performance. See, e.g., Broxton v. State, 306
¶289Ga. 127, 135 (2) (829 SE2d 333) (2019) (trial counsel’s agreement to
¶290stipulation that defendant was a gang member, intended to bolster
¶291defendant’s credibility and prevent jury from focusing on issues not
¶292relevant to defense theory, was reasonable trial strategy); Norman
¶293v. State, 303 Ga. 635, 639 (2) (814 SE2d 401) (2018) (trial counsel’s
¶294agreement to stipulation, intended to prevent State from presenting
¶295same evidence through multiple witnesses, was “eminently
¶296reasonable” and did not offer a basis for an ineffective assistance
¶297claim). So this claim of ineffective assistance fails.
¶298 (b) Jones also contends that trial counsel rendered ineffective
¶299assistance in failing to ask for a jury instruction on voluntary
¶300manslaughter.
¶301 Trial counsel testified at the motion-for-new-trial hearing that,
¶302although he had considered requesting a voluntary manslaughter
¶303instruction, Jones “always made it very clear” that he had acted in
¶304self-defense and without any criminal intent. So counsel deferred to
¶305Jones’s preference to pursue an “all or nothing” approach. The trial
¶306 19 court credited counsel’s testimony and concluded that this decision
¶307amounted to reasonable trial strategy.
¶308 We agree. Some evidence supported Jones’s self-defense claim,
¶309including testimony that Drewery advanced on Jones after the
¶310“trash-talking” began, as well as evidence of the parties’ past
¶311altercations and Jones’s expression of fear earlier that day after his
¶312run-in with Drewery. By contrast, it is questionable whether the
¶313evidence supported an instruction on voluntary manslaughter,
¶314because “words alone, regardless of whether they are highly
¶315insulting, will not justify the excitement of such passion so as to
¶316reduce the crime of murder to the lesser offense of voluntary
¶317manslaughter.” Barron v. State, 297 Ga. 706, 708 (2) (777 SE2d 435)
¶318(2015). And even assuming there was the “slight” evidence necessary
¶319to support a voluntary-manslaughter instruction, see Hatney v.
¶320State, 308 Ga. 438, 441 (2) (841 SE2d 702) (2020), it was not
¶321objectively unreasonable for counsel to conclude that presenting
¶322that theory would undermine Jones’s self-defense claim. See Velasco
¶323v. State, 306 Ga. 888, 893-894 (3) (b) (834 SE2d 21) (2019) (holding
¶324 20 that “[t]rial counsel did not act unreasonably in deciding to pursue
¶325only a defense that was consistent with Appellant’s claim of self-
¶326defense,” noting not only “the lack of evidence supporting a
¶327voluntary manslaughter charge” but also “the general inconsistency
¶328between self-defense and voluntary manslaughter claims”).
¶329Counsel’s choice was reasonable, see id., and so this claim of
¶330ineffective assistance fails, too.
¶331 Judgment affirmed. All the Justices concur.
¶332 21