ALBURY v. THE STATE.
S22A0616
In the Supreme Court of Georgia
Decided: August 23, 2022
WARREN, Justice.
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.
Riki Ray Albury was convicted of malice murder and other crimes in connection with the stabbing death of Ronald Roach.1 On appeal, Albury contends that the trial court erred by failing to excuse two jurors for cause and by admitting a particular autopsy photograph into evidence, and that Albury‘s trial counsel provided constitutionally ineffective assistance. Seeing no error, we affirm.
1. The evidence presented at Albury‘s trial showed the following. Roach‘s body was discovered on the floor of his bedroom on the morning of June 28, 2018. There was no indication of forced entry into his apartment, but there was blood in several locations inside, especially in Roach‘s bedroom where there were signs of a struggle. Roach‘s vehicle was missing. Neighbors who lived in the apartment below Roach‘s heard an argument, loud noises, and yelling upstairs at around 3:00 or 4:00 a.m. on the morning Roach was killed. They also heard the sound of people running outside the apartment, a car engine cranking, and a car driving away.
Evidence placed Albury in Roach‘s apartment on the night of the murder. Roach paid for rideshare services on the evening of June 27, 2018—including for a ride to a location near Roach‘s apartment for a man later identified as Albury. Prentiss Green visited Roach‘s apartment on the night of June 27, 2018, went into Roach‘s bedroom, saw two young men and a woman engaged in sexual activity, and left after 20 minutes. Green later identified the two men as Albury and Jared Kelvin Smith from photographic lineups. A GBI forensic biologist testified that the one pair of underwear recovered at the scene of Roach‘s murder tested positive for DNA matching Roach, Albury, and Kessiah Rowe.
Dr. Christy Cunningham, a DeKalb County medical examiner who performed Roach‘s autopsy, testified that Roach‘s cause of death was multiple stab wounds; she identified 38 stab wounds across Roach‘s body that were consistent with wounds made by a single knife or multiple knives. She also identified blunt-force trauma injuries on Roach‘s head and face.
2. Albury contends that the trial court erred by failing to excuse two jurors because, as they explained during voir dire, they had certain scheduling conflicts during the week of trial. The trial transcript does not demonstrate that Albury made any objection or motion to strike the two jurors at issue for cause. And Albury does not claim that he did so or that some portion of the transcript showing such an objection or motion is missing. Accordingly, this issue has not been preserved for ordinary appellate review. See Hill v. State, 310 Ga. 180, 186 (850 SE2d 110) (2020) (“Because Hill did not make a request to strike the juror for cause, the issue was waived for ordinary appellate review.“); Veal v. State, 301 Ga. 161, 163 (800 SE2d 325) (2017) (“Veal concedes that he did not make a request to strike the jurors. Therefore, the issue was waived for direct review.“). See also Thompson v. State, 294 Ga. 693, 700-701 (755 SE2d 713) (2014) (Nahmias, J., concurring specially) (noting lack of legal authority imposing any duty on trial courts to excuse jurors for cause sua sponte). Moreover, Albury does not claim that the trial court committed plain error, and in any event “plain-error review is not available for this issue.” Hill, 310 Ga. at 186.
3. Albury also contends that the trial court erred by admitting into evidence a post-incision autopsy photograph. He argues that the trial court never properly subjected the photograph to the balancing test required under
Under our current Evidence Code, “we generally evaluate the admissibility of autopsy photographs under
Albury filed a pre-trial motion in limine to exclude from evidence a post-incision autopsy photograph of an injury to Roach‘s head after the skin of his scalp and face had been peeled back. In the motion, Albury argued that the photograph did not depict a fatal injury, was not required to assist the jury‘s understanding of the circumstances surrounding Roach‘s death, and could be described effectively with the medical examiner‘s diagram of the injuries, as it was at co-indictee Smith‘s trial. When the motion in limine was heard at trial, the State provided the trial court with a copy of this Court‘s opinion in Venturino and referred to that decision‘s recognition of “the balancing test in 403.” Both parties extensively argued about the relevance of the photograph, including the weight of its probative value and its danger of unfair prejudice. The trial court said that it did not see the photograph as “that gory,” ruled that it would be relevant “based on the law being cited by the State,” and admitted it over Albury‘s objection.
Although the trial court did not cite the text of Rule 403 in its ruling, the trial transcript shows that both parties argued the text of the rule, that the trial court discussed the photograph‘s relevance and potential prejudice, and that it based its ruling on the case the State cited, Venturino, 306 Ga. at 395-396. In so doing, the trial court implicitly conducted the proper analysis under Rule 403, even though it did not expressly reference that rule. See Johnson v. State, 312 Ga. 481, 494 (863 SE2d 137) (2021) (“[W]e see no abuse of discretion in the trial court‘s implicit conclusion that the probative value of [certain] evidence was not substantially outweighed by its prejudicial effect.“) (emphasis supplied).
We next consider whether the trial court‘s ruling amounted to an abuse of its discretion and conclude that it did not. In that regard, Albury describes the photograph at issue as “gory,” “graphic,” “ghastly,” and “gruesome,” and argues that it neither showed Roach‘s cause of death nor supported the State‘s theory that more than one person attacked Roach. However, Dr. Cunningham testified that because of Roach‘s thick hair, she could see his head injury only after pulling back his scalp. The photograph shown to the jury thus depicted the only way that Roach‘s head injury was visible. Moreover, the wound depicted in that photograph differed from numerous other injuries that were consistent with evidence of Smith‘s participation in the crimes by striking Roach with Smith‘s knife and perhaps his fist. Because Dr. Cunningham testified that the particular injury depicted in the photograph was caused by a blunt force consistent with a person striking Roach‘s head with a heavy object—and not with a fist or a sharp object like a knife—the photograph had a tendency to make it “more probable” that someone other than Smith participated in the crimes—a fact of great consequence in Albury‘s trial. See Rule 401. Accordingly, although the photograph at issue could be characterized as somewhat gruesome, it nevertheless had significant probative value in showing the nature of Roach‘s various injuries and supported the theory that Albury (and not just Smith) participated in the attack—particularly in light of Rowe‘s testimony that Albury stayed with Smith during the attack and later admitted his participation in the attack.
Based on the foregoing, we cannot say that the trial court abused its discretion when it concluded that the photograph was relevant and implicitly ruled under Rule 403 that the photograph‘s probative value was not substantially outweighed by the danger of unfair prejudice. See Allen, 307 Ga. at 710; Moore v. State, 307 Ga. 290, 295 (835 SE2d 610) (2019) (holding that the trial court did not abuse its discretion in admitting post-incision autopsy photographs that “were relevant to show the nature and location of the victim‘s injuries, which corroborated the State‘s evidence of the circumstances of the killing“) (citation and punctuation omitted); Venturino, 306 Ga. at 395-396 (disavowing, in cases governed by our current Evidence Code, application of the former rule that a post-incision autopsy photograph is not admissible “unless necessary to show some material fact which becomes apparent only because of the autopsy,” and holding that trial court did not abuse its discretion in admitting such a photograph “[a]lthough [it] was relatively gruesome“) (citation and punctuation omitted).
4. Albury contends that he was denied the effective assistance of counsel in two ways. We conclude that Albury has failed to show that his trial counsel was constitutionally ineffective.
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466 U.S. at 687-688. This requires a defendant to overcome the “strong presumption” that trial counsel‘s performance was adequate. Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation and punctuation omitted). To carry the burden of overcoming this presumption, a defendant “must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d 221) (2016). “In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.” Id. (citation and punctuation omitted). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different. See Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
(a) Albury claims that his trial counsel was ineffective because, after Juror 28 became sick while the post-incision autopsy photograph was displayed to the jury, counsel failed to press the trial court to question the other jurors and ascertain any resulting bias.2 While the photograph was displayed and Dr. Cunningham was describing the injury depicted, Juror 28 said: “I might pass out.” After a 15-minute recess, the trial court explained that the juror had tried to stand up, “looked like he fell down on the floor, apparently threw up,” and was assisted by a court deputy and by medical personnel. The court then decided to release the jurors for the day and ask them in the morning if what happened would affect their ability to be fair and impartial. Counsel for
Pretermitting whether counsel performed deficiently by not requesting that the other jurors be questioned, Albury has failed to offer any evidence to show that, had the jurors been questioned, there is a reasonable probability that the outcome of the trial would have been different. See Jones v. State, 282 Ga. 47, 50 (644 SE2d 853) (2007) (“Even assuming, arguendo, that counsel performed deficiently by failing to make inquiry into whether the juror‘s behavior (clutching her stomach and leaving the courtroom with the bailiff) had any impact on the rest of the panel, appellant failed to adduce any evidence to show that he was prejudiced by the lack of inquiry.“).
(b) Albury also claims that his trial counsel was ineffective for failing to request a jury charge on voluntary manslaughter and failing to object when the trial court, while working from the jury charge given at Smith‘s trial, removed a charge on voluntary manslaughter. Prior to Smith‘s trial, Albury turned down a plea offer of 15 years in prison for voluntary manslaughter in exchange for his truthful testimony. During the charge conference, the trial court noted that neither party had requested a charge on voluntary manslaughter, so that charge would not be included in the charges given to the jury; neither party objected. At the hearing on the motion for new trial, Albury‘s trial counsel testified that she met frequently with Albury in preparation for trial and thoroughly explained the plea offer, including the difference between murder and voluntary manslaughter and what that would mean for sentencing. Counsel further testified that she and Albury discussed whether to ask for an instruction on voluntary manslaughter; that Albury wanted to argue only that he was not guilty; that her trial strategy was to argue that Albury was present but was not a party to the crimes; that both of them were concerned that the jury might reach a compromise verdict of guilt on voluntary manslaughter, resulting in a worse sentence than was offered prior to trial; and that she and Albury together decided not to request a charge on voluntary manslaughter. In the order denying Albury‘s motion for new trial, the trial court relied on counsel‘s testimony, recognized that pursuing an all-or-nothing defense is a generally permissible strategy, and found that Albury explicitly agreed to that strategy.
Albury argues that counsel could have foreseen the guilty verdict for malice murder, that no valid trial strategy would deprive the jury of an alternative to murder and its mandatory life sentence, that a compromise verdict would have been better than the resulting guilty verdict, and that despite counsel‘s testimony, Albury did not understand or sanction the trial strategy because he has little knowledge of the criminal justice system and relied heavily on counsel‘s advice.
Contrary to these arguments, and assuming that the evidence presented at trial authorized an instruction on voluntary manslaughter, it was not a patently unreasonable strategy for trial counsel to assert, after consultation with Albury, that he did not participate in the crimes and to pursue an all-or-nothing defense. See Outlaw v. State, 311 Ga. 396, 406 (858 SE2d 63) (2021) (“Decisions about which defenses to present and which jury charges to request are classic matters of trial strategy, and pursuit of an all-or-nothing defense is generally a permissible strategy.“) (citation and punctuation omitted); Floyd v. State, 307 Ga. 789, 802 (837 SE2d 790) (2020) (“Floyd‘s trial strategy was to assert that he had no involvement in Jackson‘s death. That strategy was reasonable. Moreover, in the execution of such a reasonable strategy, a trial counsel‘s decision not to
Judgment affirmed. All the Justices concur.