¶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: March 19, 2024
¶4 S24A0396. EVERETT v. THE STATE.
¶5 BETHEL, Justice.
¶6 Jerome Everett was convicted of felony murder and other
¶7crimes in connection with the shooting death of Keith Nelson.1
¶8Everett contends that the trial court erred by giving an incorrect
¶9jury instruction on justification and that his trial counsel rendered
¶10 1 The crimes occurred in the early morning of March 28, 2008. On June
¶1124, 2008, a Fulton County grand jury indicted Everett for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault with a deadly weapon (Count 3), possession of a firearm during the commission of a felony (Count 4), and possession of a firearm by a convicted felon (Count 5). Following a jury trial from March 29 to April 6, 2010, the jury found Everett not guilty of malice murder (Count 1), but guilty on the remaining counts. The trial court sentenced Everett to serve life in prison on Count 2 and a consecutive term of five years in prison on Count 4; Count 3 merged into Count 2. Everett pled guilty to Count 5 and was sentenced to serve a concurrent term of five years in prison. Everett filed a timely motion for new trial, which was amended 12 years later through counsel. Following a hearing on August 8, 2023, the trial court denied the amended motion on September 28, 2023. Everett then filed a timely notice of appeal, and his appeal was docketed to this Court’s term commencing in December 2023 and submitted for a decision on the briefs. ineffective assistance by failing to object to the State’s use of his
¶12prior convictions as impeachment evidence. But the jury instruction,
¶13even if erroneous, was a harmless error, and the ineffective
¶14assistance claim fails because trial counsel was not deficient.
¶15Accordingly, we affirm.2
¶16 1. The evidence presented at trial showed the following. 3 On
¶17March 28, 2008, Nelson’s next-door neighbor awoke around 2:30
¶18a.m. to the sound of loud noises coming from Nelson’s condominium,
¶19including Nelson’s cries for help followed by what sounded like two
¶20gunshots. The neighbor called the police, and then she heard
¶21someone run down a flight of stairs, followed by a third gunshot.
¶22 2 We are troubled by the inordinate and unexplained delay between the
¶23filing of Everett’s motion for new trial in 2010 and the filing of an amended motion 12 years later. So, yet again, we remind the bench and bar that long post-conviction delays “put at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial,” and we “reiterate that it is the duty of all those involved in the criminal justice system . . . to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.” Owens v. State, 303 Ga. 254, 258 (811 SE2d 420) (2018) (citation and punctuation omitted.). 3 Because this case requires our assessment of whether an instructional
¶24error was harmless, see Division 2 below, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done. See Jones v. State, 316 Ga. 481, 486 (2) (888 SE2d 91) (2023). 2 Police responded to the call and entered Nelson’s home through the
¶25balcony door. Inside, the police found signs of a struggle, bloody
¶26footprints on the stairs leading to the front door, and Nelson’s body
¶27lying in a pool of blood near the front door. Nelson was declared dead
¶28by a paramedic, and it was later determined that he died from blood
¶29loss caused by a gunshot wound that perforated his femoral artery.
¶30Nelson also had two gunshot wounds to his abdomen and a number
¶31of superficial injuries.
¶32 Officers spotted a man, who was later determined to be
¶33Everett, “walking briskly” away from the condo, carrying something.
¶34Officers eventually stopped Everett and returned him to the crime
¶35scene. The officers found Nelson’s car and house keys in Everett’s
¶36pockets, and they found blood that was later determined to be
¶37Nelson’s on Everett’s clothes and shoes. In the area where Everett
¶38was apprehended, officers found a flatscreen television, which
¶39Everett later admitted to stealing from Nelson’s condominium, and
¶40a pair of bloody gloves. Officers also discovered a partially loaded
¶41gun in the area where Everett was apprehended, and a firearms
¶42 3 examiner determined that three shell casings found at the crime
¶43scene were fired from the gun.
¶44 At trial, Everett testified in his own defense, admitting to
¶45shooting Nelson, but claiming he did so in self-defense. Everett
¶46testified that he was working as a prostitute the night of the murder,
¶47and that while he was at Nelson’s home, Nelson took off his pants,
¶48attempted to renegotiate their agreement, and pressured him for
¶49sexual acts they had not agreed on. Everett explained that, during
¶50the back-and-forth, Nelson produced a gun and pointed it at him.
¶51The two men then fought over the gun, and it fired. Everett further
¶52testified that, after the gun first discharged, Nelson grabbed a large
¶53kitchen knife and that the gun, which by then Everett was holding,
¶54fired a second time. Nelson then dropped the knife but kept fighting
¶55and, at some point, fell down the stairs to the first floor. Everett
¶56claimed that, as he tried to pass the unarmed Nelson to exit the
¶57condo, Nelson grabbed his leg and tried to attack him. Everett tried
¶58to stop him, and the gun, which Everett was still holding, fired a
¶59third time. According to Everett, he then went back upstairs, put on
¶60 4 gloves he found in his backpack, took Nelson’s television as
¶61“payment,” and lowered the television and himself off Nelson’s
¶62balcony.
¶63 2. In his first enumeration of error, Everett argues that the
¶64trial court erred in its jury charge with respect to the law of
¶65justification. Specifically, Everett points to a portion of the jury
¶66charge that deviated from the pattern jury charge in a manner that
¶67he contends could have misled the jury into believing that
¶68justification was not available as a defense to Everett if he was
¶69attempting to commit, committing, or fleeing after committing a
¶70theft offense that was not a felony. While we agree the instruction
¶71was not as clear as it could have been, any error in giving the
¶72instruction was harmless because the jury was highly unlikely to
¶73have believed the use of deadly force was justified in the first place.
¶74 The relevant pattern jury instruction in effect at the time of
¶75Everett’s 2010 trial provided that “[a] person is not justified in using
¶76force if that person . . . is attempting to commit, is committing, or is
¶77fleeing after the commission or attempted commission of a felony
¶78 5 (define arguable felony).” Suggested Pattern Jury Instructions, Vol.
¶79II: Criminal Cases (4th ed.) § 3.10.10 (b) (4th ed. 2007). See also
¶80OCGA § 16-3-21 (b) (2) (providing that “[a] person is not justified in
¶81using force under the circumstances specified in subsection (a) of
¶82this Code section if he . . . [i]s attempting to commit, committing, or
¶83fleeing after the commission or attempted commission of a felony”).
¶84However, when the trial court charged the jury, it omitted the
¶85reference to a “felony,” and instructed that a person is not justified
¶86in using force to defend himself if he is “attempting to commit, is
¶87committing, or is fleeing after the commission or attempted
¶88commission of a theft.” (Emphasis supplied.) The court did not define
¶89“theft” for the jury. The trial court overruled Everett’s objection to
¶90the charge.
¶91 The State’s theory at trial was that Everett, armed with a gun,
¶92went to Nelson’s home with the intent to rob him. The State argues
¶93that the evidence presented at trial supported this theory, and that,
¶94accordingly, the court’s instruction on “theft” was authorized
¶95because it encompassed burglary and robbery, which are felonies.
¶96 6 See Smith v. State, 290 Ga. 768, 771-772 (2) (723 SE2d 915) (2012);
¶97see also OCGA §§ 16-8-40 (defining robbery as a felony) and 16-7-1
¶98(defining burglary as a felony).
¶99 Everett, however, argues that the instruction, as given, could
¶100have misled the jury into believing that he was not entitled to a
¶101justification defense if he was attempting to commit, was in the act
¶102of committing, or fleeing following the commission of any theft,
¶103including thefts which are misdemeanors, at the time he committed
¶104the act he claims was justified. Although Everett does not explain
¶105his argument further, the only way instructional error here could
¶106have contributed to the verdict is if reasonable jurors could have
¶107viewed the evidence as supporting the conclusion that Everett would
¶108have been justified in shooting Nelson, but that he used deadly force
¶109while committing an undefined “theft” that was not a felony.
¶110However, Everett does not specify what theft or thefts would have
¶111qualified as misdemeanors under the facts of this case.
¶112 Nonetheless, even assuming, without deciding, that the charge
¶113was erroneous because the jury was not explicitly instructed that
¶114 7 the exception to a justification defense applied only to actions that
¶115constituted a felony, we conclude that any such error was harmless
¶116in light of the evidence presented in this case. As we have explained
¶117before, “[e]ven when we find error in a jury charge, we will not
¶118reverse when the error is harmless, that is, when it is highly
¶119probable that the instruction did not contribute to the verdict.”
¶120Jones v. State, 302 Ga. 892, 897 (3) (810 SE2d 140) (2018) (citation
¶121and punctuation omitted). To determine whether an instructional
¶122error was harmless, “we assess it in the context of the instructions
¶123as a whole.” See Jones v. State, 316 Ga. 481, 486 (2) (888 SE2d 91)
¶124(2023). Additionally, as with other trial court errors, in assessing
¶125harm, “we review the record de novo, and we weigh the evidence as
¶126we would expect reasonable jurors to have done so.” Middleton v.
¶127State, 310 Ga. 365, 370 (3) (850 SE2d 126) (2020) (citation omitted).
¶128 Under these standards, the alleged instructional error here
¶129was harmless. First, the trial court thoroughly instructed the jury
¶130on justification, correctly explaining that it could find that Everett
¶131was justified in using deadly force only if he
¶132 8 reasonably believe[d] that such threat or force [was] necessary to defend himself against the other’s imminent use of unlawful force. A person is justified in using force that is intended to or likely to cause death or great bodily injury only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself or to prevent the commission of a forcible felony.
¶133See OCGA § 16-3-21 (a). The trial court also instructed the jury on
¶134the State’s burden of proving beyond a reasonable doubt that the
¶135killing was not justified. It was only after the court gave these
¶136general instructions on justification that it then explained the
¶137exception under which the defense would not apply, to which Everett
¶138objects.
¶139 As we noted above, the only testimony supporting Everett’s
¶140justification defense was his own testimony. But the evidence
¶141presented significantly undermined his credibility and showed that
¶142his version of events was untenable. It was undisputed that he shot
¶143Nelson three times in two different locations in Nelson’s home and
¶144that Nelson was unarmed when at least the last shot was fired.
¶145Police also found Nelson’s house and car keys in Everett’s pockets,
¶146 9 and Nelson’s television, the firearm used in the shooting, and bloody
¶147gloves discarded near where Everett was arrested. Additionally, no
¶148gunshot residue was found on Everett’s hands, corroborating the
¶149State’s theory that Everett was wearing gloves when he shot Nelson,
¶150and contradicting Everett’s testimony. And police apprehended
¶151Everett near the scene as he was trying to flee, which the jury was
¶152authorized to view as consciousness of guilt.
¶153 Taking all of these circumstances together, we are not
¶154persuaded that there was a meaningful likelihood that the jury
¶155would have found Everett to be justified independent of any
¶156exceptions to the availability of the defense. Because a jury would
¶157have had to find Everett justified before it could consider the
¶158exception to that defense, it is highly probable that the instruction
¶159he claims to be erroneous did not contribute to the verdict.
¶160Accordingly, any error in instructing the jury was harmless. See,
¶161e.g., Jones, 302 Ga. at 898 (3) (no reversible error where the evidence
¶162of the defendant’s guilt was “very strong” and, thus, it was not
¶163probable that the instruction contributed to the verdict); Mullins v.
¶164 10 State, 299 Ga. 681, 690 (4) (791 SE2d 828) (2016) (concluding that
¶165trial court erroneously instructed jury regarding inapplicable
¶166exception to justification defense but identifying no reversible error
¶167where “the undisputed evidence [showed] that the victim was
¶168unarmed when appellant shot him” and “the trial court fully charged
¶169the jury on the defense of self and the defense of habitation”).
¶170Everett’s claim therefore fails.4
¶171 3. Everett next argues that trial counsel provided ineffective
¶172assistance by failing to object to the State’s use of his prior
¶173convictions as impeachment evidence, thereby failing to preserve
¶174the issue for appellate review. Because the record shows that trial
¶175counsel in fact objected and properly preserved the issue for appeal,
¶176this claim fails.
¶177 To prevail on his claim of ineffective assistance, Everett
¶178 4 In his brief, Everett purported to enumerate as error a second instance
¶179of alleged trial court error, namely that the trial court erred in admitting evidence of his prior convictions. However, Everett failed to support this particular assertion with any argument or citation to legal authority in his brief. Accordingly, to the extent he intended to assert this error, it is abandoned. See former Supreme Court Rule 22 (2023). See also Ruffin v. State, 283 Ga. 87, 88 (4) (656 SE2d 140) (2008) (deeming abandoned under Rule 22 an unsupported claim of error). 11 has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [an appellant] must show that his trial counsel acted or failed to act in an objectively reasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [an appellant] must show a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one.
¶180Floyd v. State, 307 Ga. 789, 799 (4) (837 SE2d 790) (2020) (citation
¶181and punctuation omitted). With these principles in mind, we turn to
¶182Everett’s claim.
¶183 Everett filed two pretrial motions in limine to prevent the use
¶184of his five prior convictions as impeachment evidence, arguing that
¶185the crimes did not involve veracity. However, the trial court did not
¶186rule on the admissibility of the evidence at the pretrial hearing.
¶187Rather, after hearing argument on Everett’s motions, the trial court
¶188reserved ruling on them until Everett opted to testify at trial. After
¶189Everett testified on direct examination but prior to his cross-
¶190examination, counsel renewed her objection to the admission of
¶191 12 evidence of his prior convictions. The trial court sustained the
¶192objection as to two convictions but overruled the objection as to the
¶193remaining three: two convictions for retail shoplifting and one for
¶194receipt of stolen property, all felonies. When the State began to
¶195cross-examine Everett about his prior convictions, trial counsel
¶196objected once more and asked that the State tender the physical
¶197copies of the indictments before reading from them; the court
¶198overruled that objection. After the physical copies of the convictions
¶199were admitted, counsel raised no further objection.
¶200 We have previously stated that the “[s]tandard practice in
¶201Georgia has long required a party to make and obtain a ruling on an
¶202objection to evidence in the trial court, before or as the evidence is
¶203admitted, in order to preserve the objection for appeal[.]” Whitehead
¶204v. State, 287 Ga. 242, 246 (2) (695 SE2d 255) (2010). Everett’s
¶205counsel did so here, and “[t]he trial court ha[d] been apprised of the
¶206possible error in admitting the evidence and ha[d] made its ruling,
¶207and the record ha[d] been perfected for appeal purposes.” Id. at 247
¶208 13 (2). There was no reason to make another objection.5 See Simpson v.
¶209State, 277 Ga. 356, 357 (2) (589 SE2d 90) (2003) (noting that
¶210requiring a second objection would be “superfluous because the trial
¶211court has been apprised of the possible error in admitting the
¶212evidence and has made its ruling,” and additional objection “may
¶213further highlight the inflammatory evidence, as well as unduly
¶214burden the trial court, which has already ruled on the issue”
¶215(cleaned up)). Compare Watson v. State, 278 Ga. 763, 767 (2) (b) (604
¶216SE2d 804) (2004) (holding that an issue was not adequately
¶217preserved where defendant filed a motion in limine, trial court did
¶218not issue a pretrial ruling, and defendant did not object until after
¶219the problematic testimony had concluded), overruled on other
¶220grounds, State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020).
¶221Accordingly, trial counsel in fact properly objected to the admission
¶222of evidence of Everett’s prior convictions and thereby preserved the
¶223 5 Because this case was tried in 2010, the former Evidence Code applies.
¶224However, the rule is the same under the current Evidence Code. See OCGA § 24-1-103; see also Rashad v. State, ___ Ga. ___ (3) (a) (___ SE2d ___), (2024 WL 422781, 2024 LEXIS 19) (Case No. S23A0864, decided Feb. 6, 2024). 14 issue for ordinary appellate review, and Everett’s claim of ineffective
¶225assistance fails. See Salvesen v. State, 317 Ga. 314, 321 (4) (893
¶226SE2d 66) (2023) (rejecting claim of ineffective assistance based on
¶227purported failure to preserve errors where trial counsel properly
¶228preserved claim by making a timely objection in the trial court).
¶229 Judgment affirmed. All the Justices concur.
¶230 15