309 Ga. 747
Ga.2020Background:
- Sept. 7, 2007: Harrison (Appellant) was living with cousin Kenneth “Kenny” Harrison, Kenny’s wife Terretha, and their children; Kenny sold drugs and traded stolen copper wire.
- That evening Harrison, Kenny, and the victim snorted cocaine, drove to woods to burn wire; an argument led Harrison to put the victim in a choke hold, after which Harrison retrieved Kenny’s pistol and shot the victim twice in the back of the head.
- Kenny and Terretha returned to the scene the next day, discovered the body, and Kenny called police; Terretha testified Harrison admitted to her that he had shot the man.
- Harrison gave inconsistent statements (initially claiming he stayed home; at trial he said he was at a club and at an acquaintance’s house) and testified he did not kill the victim.
- Procedural history: 2009 trial ended in mistrial; retried in 2011, convicted of malice murder and felony murder and sentenced to life on each count; amended motion for new trial denied; appeal raised four ineffective-assistance claims and a sentencing/merger error.
Issues:
| Issue | Plaintiff's Argument (Harrison) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Failure to object to Terretha’s testimony about Kenny saying he saw Harrison shoot (hearsay/bolstering) | Counsel was ineffective for not objecting; testimony was inadmissible hearsay and improper bolstering | Trial counsel intentionally used Terretha’s inconsistent statements to impeach her credibility and support theory that Kenny was the killer | Counsel’s strategy was reasonable; no deficient performance shown; claim fails |
| Failure to object to GBI agent repeating Terretha’s statement about Kenny (hearsay/bolstering) | Same ineffective-assistance claim as to agent’s testimony repeating Terretha | Same: counsel used the testimony strategically to highlight inconsistencies and bolster defense theory | Not deficient; part of reasonable trial strategy; claim fails |
| Failure to object to polygraph-related testimony and failure to request polygraph jury instruction | Counsel was ineffective for allowing testimony about Terretha’s polygraph and not requesting pattern instruction | Polygraph results were not introduced; Terretha’s testimony about failing a polygraph was used by defense to impeach State’s witnesses; the pattern instruction would have been unhelpful or harmful to defense theory | Counsel reasonably declined to object and reasonably omitted the pattern charge; no deficient performance shown |
| Sentencing for both malice murder and felony murder and attempted merger | Harrison argued the double sentencing/merger was error because one homicide cannot support separate punishments for both counts | State conceded the sentencing/merger was erroneous as to felony murder | Trial court erred: felony-murder conviction/sentence vacated as a matter of law; malice-murder conviction and life sentence affirmed |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes sufficiency-of-the-evidence standard)
- Strickland v. Washington, 466 U.S. 668 (sets two-part ineffective-assistance test)
- Romer v. State, 293 Ga. 339 (discusses standards for assessing counsel performance)
- Holmes v. State, 293 Ga. 229 (counsel not deficient for not objecting when testimony supports defense theory)
- Jones v. State, 292 Ga. 593 (trial strategy decisions and bolstering objections)
- Delaney v. State, 304 Ga. 256 (use of polygraph testimony to support defense theory)
- Chambers v. State, 240 Ga. 76 (polygraph evidence admissibility principles)
- Martinez v. State, 283 Ga. 122 (one victim cannot support separate punishments for malice and felony murder)
- Krause v. State, 286 Ga. 745 (vacatur of merged felony-murder sentence as matter of law)