Sullivan v. Kemp, 293 Ga. 770

Background

Patrick Sullivan babysat a one-year-old who suffered severe brain injuries consistent with shaken-baby syndrome; Sullivan gave varying explanations (fall from couch; admitted shaking the child playfully).
Sullivan was indicted on multiple counts; convicted of aggravated assault (felony) and false name (misdemeanor); sentenced to 20 years for aggravated assault.
At trial the court gave a general definition of crime (intent or criminal negligence) and defined criminal negligence, but the aggravated-assault instruction did not specify that specific intent to injure was required.
Prosecutor’s closing repeatedly characterized the case as one of criminal negligence and conceded Sullivan did not intend to injure the child.
Appellate counsel (not trial counsel) raised only sufficiency-of-the-evidence on direct appeal; Sullivan later petitioned for habeas relief asserting appellate ineffective assistance for failing to challenge the jury charge.
The habeas court denied relief; the Georgia Supreme Court granted a certificate of probable cause and reversed, finding appellate counsel deficient and prejudice as to the omitted jury-charge claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were the jury instructions erroneous because they allowed conviction based on criminal negligence rather than specific intent required for aggravated assault?	Sullivan: The charge, read with the general definition (intent or negligence) and absence of an intent element for aggravated assault, could mislead the jury to convict on negligence.	State: The instruction on criminal negligence as part of the general definition is not per se erroneous and is distinguishable from cases where negligence was substituted for intent.	The court held the instructions were erroneous because the court defined criminal negligence without also specifying aggravated assault requires intent, and prosecutor’s statements exacerbated the risk of confusion.
Did appellate counsel perform deficiently by not raising the erroneous jury-charge issue on direct appeal?	Sullivan: Counsel missed a clear, appealable error and admitted lack of familiarity with the controlling law; there was no strategic reason to omit the claim.	State: Counsel raised sufficiency and the Court of Appeals affirmed; the omission was not necessarily ineffective.	The court held counsel’s failure was objectively unreasonable and therefore deficient.
Did the deficient performance prejudice Sullivan under Strickland, i.e., a reasonable probability the appeal outcome would differ?	Sullivan: Because the jury could have convicted based on negligence (and prosecutor urged negligence), there is a reasonable probability the appellate outcome would differ.	State: The Court of Appeals already found evidence sufficient; any charge error may have been harmless given the evidence.	The court held prejudice was shown: evidence could support negligence (or intent), so failure to raise the charge error likely affected the outcome and undermines confidence in the conviction.
Is habeas relief appropriate given the preceding conclusions?	Sullivan: Yes; both Strickland prongs met, so habeas relief should be granted.	State: No, because error was distinguishable and not necessarily prejudicial.	The court reversed the habeas denial and granted relief on the ineffective-assistance-of-appellate-counsel claim.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard)
Dunagan v. State, 269 Ga. 590 (trial charge that substituted negligence for intent is erroneous)
Holmes v. State, 272 Ga. 517 (permissible to define negligence in general charge when court also specifies offense elements including intent)
Guyse v. State, 286 Ga. 574 (aggravated assault with a deadly weapon is a specific-intent offense)
Battles v. Chapman, 269 Ga. 702 (ineffective appellate counsel claim for failing to raise erroneous jury instructions can warrant relief)
Sullivan v. State, 277 Ga. App. 738 (Court of Appeals decision on sufficiency of the evidence in the underlying direct appeal)
Tompkins v. Hall, 291 Ga. 224 (defines ‘‘reasonable probability’’ prejudice standard)
Walker v. Hagins, 290 Ga. 512 (‘‘reasonable probability’’ undermines confidence in outcome standard)