JACKSON v. THE STATE
A19A2017
In the Court of Appeals of Georgia
March 9, 2020
BROWN, Judge
FIRST DIVISION, BARNES, P. J., MERCIER and BROWN, JJ.
BROWN, Judge.
Dell Jackson appeals from his convictions of armed robbery and possession of a firearm during the commission of a felony. He asserts that insufficient evidence supports his convictions and that he is entitled to a new trial due to ineffective assistance of counsel. For the reasons explained below, we agree that Jackson is entitled to a new trial.
On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence
is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light
most favorable to the verdict, with deference to the jury‘s assessment of the weight and credibility of the evidence.
(Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506 (739 SE2d 313) (2013). So viewed, the record shows that the victim, who worked at a cafe, went to the bank around 1:30 a.m. to 2:00 a.m. after he got off work. After leaving the bank, he went to a convenience store before driving home. When he was around halfway home, he noticed that a car appeared to be following him. After parking, he walked to the end of his driveway to close the gate and the passenger in the car that had followed him asked him for directions. When the man asked him for “a light,” the victim walked back to his car, retrieved a lighter, and gave it to the passenger. As he turned away, the passenger, who was still inside the car, “pulled a gun,” pointed it at the victim‘s head and told him to “[g]et on the ground.” The man got out of the car, took his wallet, got back in the car, and left. The victim testified that a bright light post near his driveway allowed him to get a good look at the robber, who was wearing a white T-shirt, some jeans, and white tennis shoes. The gun was black and “either a 9-millimeter or a .45.”
Immediately after he was robbed, the victim called 911, and police officers arrived within “three minutes, if that.” They found a Virginia College lanyard with
The police brought the victim to Jackson‘s location at the apartment complex, where he identified Jackson as the man who had robbed him. The lanyard and keys were also taken to that location, where they opened the Lincoln MKS “that was registered to Mr. Jackson.” After being placed under arrest and read his Miranda rights, Jackson told the officer that he had not been in the Dodge Charger that evening, that someone named James was the driver, that someone named Trent was the passenger, and that he was with a woman named Ashley during the robbery. He could not provide her number to the officer because his pink iPhone had fallen out of
According to Jackson, Clark then drove to two banks and followed cars that had pulled away from an ATM before following the victim in this case. After following the victim to his home, Clark pulled out a chrome .45. When Jackson asked
the chrome gun provided by Clark was loaded. Finally, Jackson explained that he did
Although Jackson did not testify at trial, he presented testimony from a barbershop coworker that Jackson and Clark had an altercation when Clark came into the barbershop approximately four months after the robbery. They “exchanged words verbally...cussing back and forth,” and Clark threatened Jackson by “pretty much telling him that he should have been dead.” He explained “they got to fighting” and Clark pulled a gun on Jackson. According to the coworker, Jackson reported this incident to the police.
1. Jackson asserts that insufficient evidence supports his armed robbery conviction because the State did not disprove coercion. We disagree.
Coercion is, of course, a defense to any crime except murder.
OCGA § 16-3-26 . However, the fear engendered by the coercion must be of present and immediate violence at the time the coerced crime is being committed. Coercion is a defense only if the person coerced has no reasonable way, other than committing the crime, to escape the threat of harm. That question is for the jury, as are questions of the credibility of the witnesses.
2. Jackson asserts that he is entitled to a new trial because his attorney failed to seek redaction of the comments she made about the reasonableness of his story during his videotaped interview.
In order to succeed on his claim of ineffective assistance, [Jackson] must prove both that his trial counsel‘s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails to meet his burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong. Id. at 697 (IV).
(Citation and punctuation omitted.) Baugh v. State, 293 Ga. 52, 54 (2) (743 SE2d 407) (2013). “The test for determining whether trial counsel‘s performance was deficient is whether a reasonable lawyer could have acted, under the same circumstances, as defense counsel acted before and during the trial.” (Citation and punctuation omitted.) Davis v. State, 342 Ga. App. 889, 896 (2) (806 SE2d 2) (2017). In this case, trial counsel testified in the motion for new trial hearing that she did not consider filing a motion to redact her comments and that she should have done so. She explained that she watched the interview video with her client, his wife, and her assistant a few days before trial and advised Jackson that he should enter a plea rather than going to trial. Although they had “intended to enter a plea the whole time,” he changed his mind on a Monday, and they “picked a jury that same day.” At that point, she had not subpoenaed any witnesses because she “really, really thought” that Jackson would plead guilty. The case was tried on Wednesday and Thursday. Trial counsel offered no strategic reason for failing to ask that the interview be redacted before it was played for the jury. She stated that Jackson‘s main defense was coercion.
I‘m sure [the State] is going to play the tape of Dell Jackson speaking to the detective. . . . I‘m sure that‘s going to happen. What you don‘t know, and you will find out, is I called that meeting. I did. On Dell Jackson‘s request. Because he really, really, really wanted to meet with the detective and tell him what happened, what really happened that night.
During its closing argument, the State quoted trial counsel‘s statement in the video as follows:
And remember the response at some point when they‘re talking about that from [trial counsel.] She goes, Dell, you‘re not going to convince us that this was reasonable behavior. It wasn‘t. That‘s what I told you the first time I met you. It‘s kind of crazy. Even his own attorney at that interview thought that‘s not reasonable behavior. That‘s not what a reasonable person would do. And under the law, there has to be a reasonable cause to believe. Not what Dell Jackson thought, . . . but what he reasonably believed. But his action was not reasonable behavior, just like [trial counsel] said in the tape.
Having concluded that counsel‘s performance was deficient, we must now determine whether a reasonable probability exists that the trial result would have been different if not for the deficient performance. See Baugh, 293 Ga. at 54 (2). While the State submitted evidence sufficient to disprove the coercion defense asserted by Jackson in the video, Jackson presented evidence at trial of a subsequent altercation between himself and Clark, during which Clark stated that Jackson should be dead. Given the damaging nature of counsel‘s unredacted comments used to great effect by
3. Jackson‘s remaining claims of ineffective assistance of counsel are rendered moot by our holding in Division 2.
Judgment reversed. Barnes, P. J., and Mercier, J., concur.