IN THE MATTER OF PEARLIE L. LEWIS BUSH.
S05Y0854
Supreme Court of Georgia
March 28, 2005
279 Ga. 189 | 611 SE2d 50
This disciplinary matter is before the Court pursuant to the report and recommendation of a special master who was appointed pursuant to Bar Rule 4-106 (e) and who recommends disbarring Respondent Pearlie L. Lewis Bush for her violation of
The record in this case shows that on June 14, 2004, Bush, who has been a member of the Bar since 2000, pled guilty to three counts of first degree forgery and one count of financial identity fraud, all felony violations of the Criminal Code of Georgia. Bush was sentenced under the First Offender Act to a total of one year in prison followed by six years on probation. Entry of judgment on this guilty plea amounted to a clear violation of
Under these circumstances, we find that Pearlie L. Lewis Bush should be, and hereby is, disbarred and we order that her name be stricken from the roll of attorneys licensed to practice law in this state. She is reminded of her obligations under Bar Rule 4-219 (c).
Disbarred. All the Justices concur.
William P. Smith III, General Counsel State Bar, K. Gene Chapman, Assistant General Counsel State Bar, for State Bar of Georgia.
COOPER v. THE STATE.
S04A2003
Supreme Court of Georgia
March 28, 2005
279 Ga. 189 | 612 SE2d 256
HINES, Justice.
Shermont Monte Cooper appeals his conviction for the malice murder of Kenneth Ellis.1 For the reasons that follow, we affirm.
Cooper and his mother left Ellis‘s home and joined Watkins and Caver outside; they had left before the third shot. The five drove away and stopped for some cigarettes; Cooper returned the pistol to Watkins. Cooper‘s mother laughed as though the occurrеnce was “a big joke” and said: “You shot him, Shermont.” Cooper told a police investigator that Ellis “got in my face so I just shot him.”
1. The evidence was sufficient to enable a rational trier of fact to find Cooper guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Cooper contends that he did not receive effective representation of trial counsel. In order to prevail on this claim, Cooper must show both that counsel‘s performance was deficient and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). To meet
Cooper argues that counsel was deficient in nоt sufficiently investigating Ellis‘s violent nature, and then presenting evidence of it to the jury. He contends that had counsel searched for Ellis‘s criminal convictions in counties other than the one in which he resided, counsel would have discovered that Ellis had previously been convicted of aggravated assault, burglary, felony obstruction of an officer, and possession оf a firearm by a convicted felon. He also contends that if counsel had interviewed Cooper‘s family and other potential witnesses, and met with Cooper more often, counsel would have uncovered similar information about Ellis‘s violent past and certain specific acts of violence, and that counsel should have secured the servicеs of an independent expert witness to review the physical evidence.5
Although the trial court‘s order states that it “views with caution” the testimony of Cooper and his family concerning what was communicated to counsel ten years earlier during the criminal prosecution,6 the court did not decide Cooper‘s motion for new trial on credibility grounds, or even оn the ground that counsel‘s performance was not deficient. Rather, the court found that even assuming that which Cooper now contends should have been done had been done by counsel, the outcome of Cooper‘s trial would have been different. This was not error.
As to the evidence Cooper now brings forth concerning the violent character and specific acts of the victim,7 through Cooper‘s
Cooper‘s statement that Ellis was “charging” him is likewise inconsistent with the evidence, as is Cooper‘s claim that Ellis “got in his face.” The trial court‘s finding that, even if the evidence Cooper now brings forth had been admitted, there was no reasonable probability that the result of the jury trial would have been different was not clearly erroneous. Robinson, supra. Any reliance on Johnson v. State, 266 Ga. 380 (467 SE2d 542) (1996), is misplaced. In that case, the trial court made no finding concerning prejudice, ruling solely on the question of whether counsel‘s performance was deficient. Id. at 382 (2). Compare Robinson, supra. See also White v. State, 265 Ga. 22, 23 (2) (453 SE2d 6) (1995). Further, in Johnson, the evidence of malice did not include the cirсumstance that the defendant, after already wounding the victim, approached him and, at a close distance, shot him again. See Landers v. State, 270 Ga. 189, 191 (4) (508 SE2d 637) (1998) (evidence deemed overwhelming so that, even if counsel‘s performance was deficient, there could be no showing of a “reasonable probability that the jury would have had a reasonable doubt respecting his guilt. . . .“).
Cooper‘s assertion that counsel should have retained an independent expert witness to review the physical evidence does not establish ineffective assistance of counsel. The expert that Cooper retained for the motion for new trial testified that there was nothing
Judgment affirmed. All the Justices concur, except Fletcher, C. J., Sears, P. J., and Hunstein, J., who dissent.
COOPER v. THE STATE.
S04A2003
Supreme Court of Georgia
March 28, 2005
FLETCHER, Chief Justice, dissenting.
I dissent, because I conclude that Cooper established that his trial counsel was deficient in failing to investigate and presеnt evidence of the victim‘s substantial history of violence against the defendant, his mother, and others, and that this deficiency prejudiced Cooper.
To establish a claim of ineffective assistance of counsel at trial, a defendant must show that the attorney‘s performance was deficient and that the deficient performance prejudiced the defense.10 On appeal, this Court accepts the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.11
In this case, the defense was justification and Cooper contends his trial counsel was ineffective in failing to present evidence of the victim‘s prior acts of violence. At the motion for new trial hearing, Cooper established that the victim in the case had committed several prior acts of violence including an aggravated assault at the home of Cooper‘s mother, robbery by intimidation, and assault against a uniformed police officer who was attempting to serve a warrant. Cooper also presented evidence of the victim‘s violent nature when he had been drinking, the victim‘s long-term abuse of Cooper‘s mother, and the victim‘s threatening Cooper and his brother with a gun. Additionally, Cooper established that the victim had a prior conviction for possession of a gun by a convicted felon.
Cooper‘s trial counsel testified that he did not recаll anything
Just a few years before the trial in this case, this Court held that a victim‘s prior violent acts against the defendant and others is relevаnt in weighing the defendant‘s claim of justification.13 Additionally, the evidence that the victim had a conviction for possession of a gun would have been admissible in light of testimony that it appeared that the victim was reaching for a gun when he was shot.14 Trial counsel offered no explanation for his failure to investigate the victim‘s past or his failure to present evidenсe of the victim‘s prior violent acts and I conclude that the failure constituted deficient performance.15
The question of whether this deficiency was prejudicial requires that this Court examine the evidence that could have been presented in light of the evidence that was before the jury.16 The evidence at trial showed that Cooper was 17 years old at the time of the shooting. According to his statement to police, which was admitted into evidence, his mother asked him to come help her leave the victim‘s house, and said that the victim was beating her and she was scared. During one phone conversation that evening, the victim got on the phone and threatened to kill Cooper the next time he saw him. Cooper and his friends Catrice Watkins and Terrence Caver drove to the victim‘s house to assist Cooper‘s mother in leaving. When they arrived, the victim pushed Cooper, started to hit Caver, and then came charging at Cooper, at which point Cooper fired the gun.
Watkins testified that when they arrived at the victim‘s home, it appeared that Cooper‘s mother had been beaten. The victim started cursing at them and swung at Caver, but missed. Caver then hit the victim, who fell on to the couch. The victim then began reaching under
No evidence of the victim‘s priоr acts of violence against Cooper, his mother, or others came into evidence. The evidence that the majority focuses on came from Cooper‘s statement and the testimony of Watkins, who admitted she was a “real close friend” of Cooper‘s. The jury may well have discounted this evidence as self-serving. Furthermore, the evidence relаted solely to the events immediately preceding the death of the victim. If the jury had been given the independent evidence of the victim‘s substantial history of violent acts, I conclude there is a reasonable probability that the result would have been different — either an acquittal or a conviction on the lesser charge of voluntary manslaughter.
This case is substantially similar to Johnson v. State,17 in which this Court rеversed a conviction based on the failure of trial counsel to present evidence of the victim‘s prior acts of violence. In that case, Justice Hunstein, writing for the Court, held that
[a]lthough the jury heard evidence that, just prior to his death, the victim was drunk, enraged and threatening to kill appellant with a knife or gun, all but one of those witnesses also testified that thеy saw nothing in the victim‘s hands. There was no testimony regarding the victim‘s propensity toward violence; our review of the record fails to confirm counsel‘s determination that evidence of specific prior acts would have been cumulative. Those witnesses whom counsel chose not to call would have testified to specific occasions when the victim had shot at or otherwise assaulted others or threatened them with weapons. . . . In view of appellant‘s justification defense, we conclude that appellant has shown a reasonable probability that his trial might have resulted in conviction of a lesser offense, if not of acquittal, had the jury heard those witnesses.18
I see no substantial difference between Johnson and this case, and accordingly, I conclude that Cooper is entitled to a new trial.
I am authorized to state that Presiding Justice Sears and Justice Hunstein join in this dissent.
Decided March 30, 2005.
Michael B. Nation, for appellant.
Dennis C. Sanders, District Attorney, William P. Doupé, Assistant District Attorney, Thurbert E. Baker, Attorney General, Frank M. Gaither, Jr., Assistant Attorney General, for appellee.