Brown v. StateBrown v. State
Following the denial of her motion for new trial, as amended, Jessica Lee Brown appeals her conviction for malice murder in connection with the fatal shooting of Joshua Gallimore. She challenges the sufficiency of the evidence and the effectiveness of her trial counsel, and she further complains that the trial court deprived her of a fair trial and failed to provide her with counsel for this appeal. Finding the challenges to be unavailing, we affirm.1
We first address Brown’s contention that she has been denied her right to the appointment of appellate counsel. Brown asserts that her last attorney works for the public defender’s office but abandoned the case without notification, and she alleges that, after this appeal was docketed, she submitted to that office an application for an attorney which has not yet been acted on. The record shows, however, that Brown retained trial counsel and paid him out of her personal funds, and both attorneys who represented her on motion for new trial were from the same private law firm. In one of her filings in this Court, Brown admits that she was represented on motion for new trial by retained counsel. The trial court explicitly informed Brown that she had the right to counsel for her motion for new trial and for her appeal and that if she could not afford an attorney, she must notify the court so that it could provide her with sufficient counsel. But the record does not contain any request for leave to proceed as a pauper, any attempt to establish Brown’s indigency, or any request for the appointment of counsel. See
It is true that “an indigent has the right to appointed counsel to assist him on direct appeal and an individual desiring an appeal need not, once a responsible state authority knows of the desire to appeal and knows of the status of indigency, specifically request appointment of appellate counsel.” Trauth v. State, 295 Ga. 874, 875-876 (1) (763 SE2d 854) (2014) (citations and punctuation omitted). Nevertheless, where, as here, a defendant is represented by retained counsel at trial and on motion for new trial,
it must be made known to the trial court or some responsible state official that the defendant is indigent and cannot afford retained counsel to pursue an appeal. If the trial court has no reason to believe that the defendant is indigent and cannot afford the services of retained counsel for the purpose of appeal, it is under no duty to inquire as to the defendant’s indigency and may presume that his retained counsel will protect his appellate rights.
Hopkins v. Hopper, 234 Ga. 236, 238 (3) (215 SE2d 241) (1975). See also Watkins v. State, 340 Ga. App. 218, 221 (1) (797 SE2d 144) (2017). Moreover, the trial court specifically informed Brown of her right to appointed counsel in the event of indigence for her appeal as well as her motion for new trial. Cf. Watkins, 340 Ga. App. at 221-222 (1). In these circumstances, and in the absence of any proof of indigency or request in the trial court for appointed counsel, the trial court had no reason to make a determination as to whether Brown was indigent and entitled to appointed counsel on appeal, and we cannot conclude that Brown has been deprived of her right to appellate counsel or that a remand for appointment of such counsel is either necessary or appropriate.
2.
Construed to support the verdict, the evidence showed the following. Brown dated Gallimore for about a year and a half, she lived with him in his trailer for most of that time, and they separated about three months before Gallimore was killed. After the separation, Brown continued to see Gallimore periodically and do things for him, and she told his father that if she could not have him, nobody would have him. On May 19, 2010, Brown loaned her car to Gallimore for him to use to handle some business that afternoon. Instead, Gallimore and his friend Charles Webb drove to see Gallimore’s new girlfriend. Brown became upset after hearing a woman in the background during a phone call with Gallimore, and Brown texted him that he had “f***ed up” and that she hated him for what he did. She called the police to report that Gallimore would not bring her car back. Gallimore and Webb finally returned to Gallimore’s trailer about 1:00 a.m. on May 20, which was the last time that Gallimore was seen alive. His last phone contact with Brown occurred at 6:11 a.m. that morning, and his last communication
Webb testified that, although it was not unusual to see Gallimore infrequently, Brown asked Webb, on May 21, to check on Gallimore because she thought something was wrong, and no one else ever expressed a similar concern to Webb about Gallimore. Brown never asked police to do any sort of welfare check on Gallimore, but, on May 25, she finally convinced Gallimore’s cousin to go with her to check on him. Another friend of Gallimore’s met them there, entered his trailer, and then screamed for Brown to call 911. Gallimore was dead, and his body was in a “moderate to marked” state of decomposition. The medical examiner concluded that Gallimore had suffered eight gunshot wounds to his head in rapid succession and had been deceased for three to ten days. Police found no evidence of any weapons, drugs, burglary, or robbery, and Brown was the only person known to have conflict with Gallimore.
Law enforcement officials interviewed Brown on three consecutive days. The first interview occurred on May 25, soon after the discovery of Gallimore’s body. At that time, the bodily decomposition was “so bad” that police did not know that Gallimore had been shot, and no one had mentioned that possibility. Indeed, police did not even know whether Gallimore had died of natural causes, an accident, or a homicide. Yet Brown asked if he had been shot. On May 26, she explained that she had done “everything” for Gallimore, felt “underappreciated,” burned and bleached his clothes after they broke up, and felt disrespected when he took her car to see another woman. On May 27, Brown admitted that she was at Gallimore’s residence on May 20, that she was upset with him, and that things “went bad.” At trial, Brown testified that she went straight home after work on May 20 and that her brother then took her to her cousin’s house, where she stayed until late that evening when her brother gave her a ride home.
Brown argues that the circumstantial evidence was not sufficient to support her conviction for murder, and she specifically complains that no murder weapon was found, that there is no proof of motive or of malice, and that someone else could have killed Gallimore. Under former
But not every hypothesis is a reasonable one, and the evidence need not exclude every conceivable inference or hypothesis – only those that are reasonable. Whether an alternative hypothesis raised by the defendant is “reasonable” is a question committed principally to the jury, and where the jury is authorized to find that the evidence,
though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law.
Gibson v. State, 300 Ga. 494, 495 (1) (796 SE2d 712) (2017) (citations and punctuation omitted). See also Nichols v. State, 292 Ga. 290, 291 (736 SE2d 407) (2013) (“Questions about the reasonableness of hypotheses, which would include the possibility of another perpetrator, are for the jury to decide in cases predicated on circumstantial evidence.” (citations omitted)).
In this case, the evidence showed that Brown wanted to prevent Gallimore from being with any other woman, that she was angry with him for using her car to see another woman, that she admitted going to Gallimore’s house where things “went bad,” that he was shot eight times, and that Brown attempted to have persons other than the police check on him. Thus, the circumstantial evidence included proof of Brown’s motive, her opportunity for the killing, her malicious
3.
Many of Brown’s enumerations of error cannot be reached in this appeal. She complains that, although the indictment alleges that she shot Gallimore, she was not indicted for the offense of possession of a firearm or aggravated assault, and neither of those crimes was proved. To the extent that Brown is further arguing that the evidence is not sufficient, her argument is fully answered in Division 2, supra, with respect to malice murder, and she presents nothing for review with respect to aggravated assault or possession of a firearm because she was not convicted or sentenced for either of those offenses. See Wallin v. State, 270 Ga. 889, 890 (514 SE2d 828) (1999). To the extent that Brown challenges the indictment itself, her challenge is waived due to her failure to raise it in the trial court. See Bighams v. State, 296 Ga. 267, 269-270 (2) (765 SE2d 917) (2014); Thompson v. State, 286 Ga. 889, 890 (2) (692 SE2d 379) (2010), overruled on other grounds, State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011).
With respect to certain other alleged errors that Brown asserts deprived her of a fair trial, including the selection of a juror who recognized Brown from working with her, the admission of hearsay testimony, and the prosecutor’s use of leading questions, these arguments also have been waived as no proper objection was raised in the trial court, and plain error review is unavailable even for the evidentiary matters because, as noted in footnote 2, supra, Brown was tried under the former Evidence Code. See Atkinson v. State, 301 Ga. 518, 522 (3), n. 5 (801 SE2d 833) (2017). As for Brown’s contention that she heard the jury foreman say that she was guilty during her testimony, her post-verdict objection was untimely because she knew of the alleged misconduct prior to the verdict.3 See Parker v. State, 249 Ga. App. 509, 511-512 (2) (548 SE2d 475) (2001); see also Morakes v. State, 201 Ga. 425, 431 (3) (40 SE2d 120) (1946).
The jury selection and juror misconduct issues just mentioned cannot be reached in this appeal for the additional reason
by a friend of Gallimore’s after his testimony to other witnesses who had not yet testified;7 and the failure of the attorneys who represented Brown on motion for new trial to call trial counsel as a witness to answer the allegations made against him in that motion. Brown also complains that Gallimore’s
4.
Brown contends that trial counsel provided constitutionally ineffective assistance in several respects. Under Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984), to prevail on this claim, Brown must show both that her “counsel performed deficiently and that, but for the deficiency, there is a reasonable probability that the outcome of [her] trial would have been more favorable. While the test imposed by Strickland is not impossible to meet, the burden is a heavy one.” Speziali v. State, 301 Ga. 290, 293 (2) (800 SE2d 525) (2017) (citation and punctuation omitted).
To prove deficient performance, one must show that [her] attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional performance. Thus, 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. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other.
Capps v. State, 300 Ga. 6, 8 (2) (792 SE2d 665) (2016) (citation omitted). Although Brown’s trial counsel was present at the hearing on her motion for new trial, the attorneys who were then representing her decided not to call trial counsel as a witness. “As we have explained, when trial counsel does not testify at the motion for new trial hearing about the subject, it is extremely difficult to overcome the presumption that his conduct was reasonable.” Faulkner v. State, 295 Ga. 321, 327 (4) (758 SE2d 817) (2014) (citation and punctuation omitted).
Brown has presented her assertions of ineffective assistance to this Court in a cursory manner,8 and most of them involve her trial counsel’s alleged failure to prepare for trial adequately and investigate information that she gave him and other potentially favorable evidence. In the absence of testimony by trial counsel or any other evidence to the contrary, Brown has made “no affirmative showing that the purported deficiencies in [her] trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.” Jones v. State, 296 Ga. 561, 567 (4) (769 SE2d 307) (2015) (citation and punctuation omitted). Moreover, Brown has
failed to present any evidence as to what further research would have revealed or how any additional information would have improved [her] position. To show prejudice on a claim that trial counsel failed to adequately investigate the case, [Brown] had to at least make a proffer as to what additional investigation would have uncovered, and not merely speculate that such
information exists and would have made a difference.
Lupoe v. State, 300 Ga. 233, 241 (2) (b) (794 SE2d 67) (2016) (citations and punctuation omitted). See also Hampton v. State, 279 Ga. 625, 627-628 (4), (5) (619 SE2d 616) (2005). Although Brown herself testified at the hearing on her motion for new trial, she did not proffer the testimony of any uncalled witness, a legally recognized substitute, or other potentially favorable evidence. See Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014).
Brown claims that her trial counsel rendered ineffective assistance with regard to jury selection. She supports this claim by pointing to her testimony at the hearing on her motion for new trial that one juror, who recognized her from work but denied knowing her personally, had some disagreement with her and told others that she was guilty. This testimony was not supported by anything in the trial transcript or by any testimony of trial counsel, and “juror selection is a matter of trial tactics and strategy.” Capps, 300 Ga. at 12 (2) (e). See also Simpson v. State, 298 Ga. 314, 318 (4) (781 SE2d 762) (2016) (“Which, and how many, prospective jurors to strike is a quintessential strategic decision.” (citation and punctuation omitted)). Moreover, Brown’s credibility “as a witness at the motion for new trial hearing was a matter for the trial court’s discretion.” Harris v. State, 279 Ga. 304, 308 (3) (d) (612 SE2d 789) (2005). Brown has not shown any other way that “counsel may have acted unreasonably during the jury selection process, and has not shown how, absent some deficiency in counsel’s performance, a different jury would have been selected that would have reached a result more favorable to [her] at [her] trial.” Clements v. State, 301 Ga. 267, 271 (3) (a) (800 SE2d 552) (2017).
Brown also contends that her trial counsel failed to file motions or to object to various leading questions, hearsay, and illegal evidence. Brown does not, however, identify any specific motion that should have been filed. In any event, reasonable decisions as to whether to make a specific objection or motion are “ordinarily matters of trial strategy and provide no ground for reversal.” Ballard v. State, 297 Ga. 248, 254 (6) (h) (773 SE2d 254) (2015) (citation and punctuation omitted). Because trial counsel’s failure to make certain objections and motions may have amounted to strategic decisions, and because Brown never called counsel to question him concerning those decisions, she has failed to carry her burden of demonstrating that he provided deficient performance. See Dyer v. State, 278 Ga. 656, 660 (7) (604 SE2d 756) (2004).
Judgment affirmed. All the Justices concur.