*1 legal DeYoung sions do not constitute ineffective assistance. (5) 780, The trial court was that, the circumstances as they authorized to find based upon time, agent at the the cross-examination was an appeared Thus, informed and trial tactic. there was no violation of reasonable right the constitutional of counsel. All the Justices concur.
Judgment affirmed. Decided October 2003. Frier, Charles H. for appellant. Howard, Jr., Hart, Bettieanne C. Assis- Attorney,
Paul L. District Baker, General, E. Adam M. Attorney, Attorney tant District Thurhert Homes, General, Assistant for Attorney appellee. v. THE
S03A1169. FORTSON STATE. (587 SE2d Chief Justice. Fletcher,
A in Lea jury County Tracy Madison convicted Fortson of malice murder and related crimes for the Benton.1 killing Douglas Because we find that was denied the effective Fortson assistance her a attorney unnecessarily counsel when used court, on juror already that had been excused for cause the trial we reverse and remand a new trial. 17, 2000,
1. The evidence at trial shows that on June presented neighbors they of Benton became concerned because had not seen him since June 2000. The alerted the and neighbors police informed them that they had seen Fortson at victim’s home on June 4. Fortson admitted to that she had at the police present been day. victim’s home on that
Meanwhile, manager nearby County a farm found Oglethorpe cattle on his farm that had suspicious trough painted been camou- with flage manager police, and filled cement. The farm contacted the who found the victim shower curtains and entombed wrapped 18, 2000, grand The crimes were committed on or around June 2000. On October jury murder, felony murder, assault, aggravated indicted Fortson for malice two counts of 12, 2001, attempted July and arson. On convicted on all Fortson counts. aggravated merged murder conviction and one of the assault convictions as a matter of law conviction, July 17, 2001, with the malice murder and on Fortson was sentenced to life in 13, 2001, prison plus twenty years. August for a new trial on and amended Fortson moved 27, 2003, May February the motion on and motion 2002. The court denied timely appeal was in this Fortson filed her notice of on March 2003. The case docketed 22, 2003, July 21, April argument Court on and oral was heard on 2003. trough. determined had killed a sin- Police later gle range multiple at caliber bullet wound to the head close .22 manager familiar with Fort- wounds the chest. The farm stab turkey son she used the farm to hunt and deer. because Investigators evi- obtained search warrants and discovered other connecting police home, crime. In Fortson’s dence *2 green, beige paint type spray black, the and that was same found trough had mailbox, on cattle and on which that used the Fortson’s camouflage. painted Police also found a .22 rifle and also been ammunition. caliber gun and were later determined consis- The bullets to be although police kill victim, those the tent with that were used to the conclusively from the could not determine whether the bullet taken gun. found victim had come from Fortson’s Police also a Wal-Mart receipt showing purchased on that Fortson had a shower curtain gone Ath- 4, 2000. later learned that had also to June Police Fortson day 80-pound bags purchased a cat- ens that and ten of concrete and trough in like the one which the victim was found. tle of truck simi-
Police found concrete the bed Fortson’s that was found lar to that which the victim had been encased. Police also place marks on the near the where the victim was that scuff found trees matched marks on Fortson’s truck. police home, cush-
At the victim’s found bloodstains the sofa carpet. They heavy kerosene, also a of and ions and noticed smell sofa, under the indi- found a candle that had burned down the stub unsuccessfully attempted cating the house that someone had set on fire. reviewing light in the most to the
After the evidence favorable jury’s a verdict, for we conclude that there was sufficient evidence guilty find of malice rational trier of fact to murder, of offenses attempted arson, and the related crimes.2 was effective 2. Fortson contends she denied assistance attorney unnecessarily peremptory used a counsel when her already dispute juror cause. on that had been excused for a juror. During dire, no. 8 Juror female voir Juror involves informed the no. arresting spoken that she had to the officer about husband, in law case, brother, and son all worked spite concerns, Fort- of these the trial court denied enforcement. son’s initial request to Juror no. 8 cause. After individual excuse jurors dire, therefore, no. remained on list of to which voir Juror Although parties would direct their strikes. she juror in fact the strike still listed as Juror no. she was the fourth on jurors had who had been excused for cause list because names Virginia, 443 U. S. SC LE2d Jackson been crossed off the list. parties proceeded jury,
Just before the to strike the Fortson’s attorney request although renewed his to excuse Juror no. improperly Reversing referred to her at that time as Juror no. 4. its granted request, stating, decision, earlier the trial court “I think already she is four on the list.” The actual Juror no. 4 had days juror. excused for cause earlier and was a male It is clear from attorney record both Fortson’s and the trial court intended to excuse Juror no. 8 at that time. parties proceeded silently jury. Inexplica- then strike the
bly,
attorney
Juror no. 8 remained on the strike list and Fortson’s
attorney
used his first
used his entire allotment of
strike to remove her. Fortson’s
strikes.
prevail
In order to
a claim
of ineffective assistance
counsel,
attorney
Fortson must show that the actions of her
were deficient
probability
and that there is a reasonable
that the deficient conduct
prejudice.3
agree,
caused her actual
found,
The trial court
and we
attorney
deficiently
unnecessarily
that Fortson’s
acted
when he
used
already
strike on a
that had
been excused for
attorney
cause. At the motion
trial,
for new
Fortson’s
testified that
*3
recently
juror
his use of a
strike on the
excused
was due
simple neglect.
credibility judgment
The trial court’s
that the mis
attorney
neglect
take made
Fortson’s
was due to
rather than
clearly
induced error was not
erroneous.4
Although the trial court denied Fortson’s motion for a new trial
prejudice
because it concluded that Fortson had suffered no
from the
recognized
causing
error, this Court has
that
a defendant to unneces
sarily
juror
use a
strike on that should have been
per
“[I]t
excused for cause is
Georgia
attorney
se harmful error.5
is well
established
that
strikes are invaluable.”6 Because Fortson’s
juror
already
used a
strike on a
who had
preju
cause,
excused for
we conclude that Fortson suffered actual
prong
dice, and the second
of the Strickland test is met.
distinguished
prior holdings by ruling
The trial court
these
that
necessary
it was not
to excuse Juror no. 8 for cause. We need not
juror
disqualified per
decide whether this
se, however, since the
trial court
did
fact excuse her for cause. Because the trial jury,
preju-
found that the
was unfit to serve on the
Fortson was
3 Strickland,
(104
674)
Washington,
(1984);
466 U. S.
687-688
SC
80 LE2d
(325
362) (1985).
Francis,
Smith v.
253 Ga.
SE2d
(581
13)
State,
Powell v.
276 Ga.
SE2d
(256
(1979);
Bradham v.
243 Ga.
SE2d
Kirkland v.
778, 780
6 Bradham,
3. Fortson also her States and search her home and truck violated the United of First, Constitutions, as OCGA 17-5-30. Fortson Georgia well § the for the home warrant was defective application asserts that and did not vague misleading it contained and statements because reliability the to determine the of provide any magistrate basis for Second, the evidence argues the information. that because that cause for the truck warrant was obtained probable established home, evidence the unconstitutional search the through suppressed from of her truck should have been obtained the search tree.”7 poisonous properly as “fruit of the Because both warrants were issued, affirm denial Fortson’s motion to sup we the court’s those during the evidence obtained searches. press protect the United States and Constitutions Georgia Both and Bill of against Georgia “unreasonable searches seizures.”8 that “no warrant shall issue Rights, provides except for example, by oath affirmation upon supported particularly cause or probable or place places persons the to be searched the describing things Georgia legislature to be seized.”9 has also codified addi In tional for the issuance of search warrants.10 requirements proper cause, magis whether the state has shown determining probable whether, given trate make a common-sense decision practical, must circumstances, there totality probability is a reasonable fruits, instrumentalities, or evidence of a crime will be found particular place.* at a credibility magistrate’s judgment We will disturb clearly the informant is judgment of the information and unless information case, magistrate enough erroneous.12 this had to issue the judge the of the information and the decision credibility At ample search warrants had investi support. beginning reported missing reported witnesses who the victim also gation, *4 they Fortson at the victim’s home near the time dis had observed body on the appeared. manager The farm who located the victim’s told used the police commonly farm Oglethorpe County 7 (379 507) (1989). State, 278, 282 SE2d Duncan v. 259 Ga. 8 const, Const, I, I, IV; para. sec. XIII. S. amend. Ga. art. U. 9 Const, I, I, para. art. XIII. Ga. sec. 10 warrants). (governing 17-5-20 to 17-5-32 search §§ OCGA (311 181,182 Stephens, SE2d 252 Ga. State 646) State, 53, SE2d Tate v. 264 Ga.
farm for hunting. police officer who testified at the probable cause hearing stated that he had personal knowledge of the tumultu- Fortson, ous between relationship police officer, former and the vic- tim, and this knowledge was corroborated through interviews with the victim’s personal friends. The officer had police personally also observed that Fortson’s painted mailbox was in a similar camouflage fashion trough cattle in which the victim was found. Under the totality circumstances, the state properly obtained its search warrants this case and it was not error for the trial court to admit the evidence obtained in the execution of those warrants.
Because the issuance of the search warrant for the house was proper, the evidence obtained later from the search of the truck was not tainted as “fruit of the poisonous tree.”
4. Fortson also argues that the trial court erred denying motion for a change of venue. Fortson claims that Madison County was an inherently prejudicial trial setting because of the pre- level of trial knowledge of the crime within the jury pool. Whether Fortson can receive a fair second trial in Madison will County depend level of knowledge prejudice within the jury pool selected for her trial, new and we therefore decline to rule on that issue.
Judgment concur, Sears, reversed. All the J., Justices except P. J., and Carley, who dissent. Justice, dissenting.
Carley, Because the majority relies on Georgia cases which either are distinguishable or should be reevaluated in light prece- recent dent of the Supreme Court of the States, United I dissent to Division 2 and to the reversal of judgment of conviction which resulted in a sentence of life plus twenty years for murder, malice aggravated assault and attempted arson. (2) (560
Citing State, Kirkland v. 6) (2002) Ga. 780 (3) (256 SE2d and Bradham v. State, (1979), the majority states that “this Court has recognized that causing defendant to unnecessarily use a on a [who] should have been excused for per cause is se harmful error. [Cits.]” 166.) (Maj. op. However, State, Kirkland v. p. at (2), actu- ally held that defense counsel’s failure to challenge prospective juror for cause prejudiced the defendant since it resulted “the seat- ing of disqualified jurors. Thus, . . .” Kirkland “was tried before a jury” biased and was deprived of his federal constitutional right “to be tried an impartial Kirkland v. jury.” supra. Under those circumstances, “extreme prejudice is implied counsel’s error is . .” Kirkland v. harmful se. . per supra. case, however, this the allegedly disqualified juror whom the trial court excused for cause and whom Fortson’s trial attorney peremptorily challenged *5 the United States Court of Supreme obviously never seated. rejected has consti- challenge of a peremptory notion that the loss an right impartial violation of the constitutional
tutes a challenges peremptory that recognized have jury. long We long So [Cits.] dimension. ... constitutional are not of defendant the fact that impartial, is jury that sits that result to achieve challenge peremptory had to use a [Cits.] was violated. Amendment does not mean the Sixth 80) (108 LE2d 2273, 101 81, 88 SC Oklahoma, 487 U. S. Ross v. Bradham, (2), at 779 also cites dicta, supra v. Kirkland “ in a fel- a defendant £[w]hen that decision, proposition 4-3 for the who to excuse a juror strikes to exhaust his ony trial has After [Cit.]” the error is harmful.’ for cause should have been excused the issue either which “considered Ross, however, most jurisdictions . prior their . . reversal rule or reaffirmed automatic rejected [this] was not challenge of a peremptory the curative use opinions State v. [Cits.]” the defendant. error, prejudice reversible absent 2003). (II) (B) (Ariz. Then in United States Hickman, 68 P3d (III) 774, 145 LE2d 304, 317 SC Martinez-Salazar, 528 U. S. v. open left question answered “the (2000), Court Supreme challenges exercise of held that “a defendant’s Ross” and (b) or impaired is not denied Proc.] Rule Grim. pursuant [Fed. to remove challenge chooses to use a when the defendant 15-12-165, for cause.” OCGA § have been excused who should juror (b), only provides Procedure of Criminal like Federal Rule num- a certain challenge may peremptorily case to a criminal parties law, per- the use of federal or state Thus, under either of jurors. ber guar- to insure the constitutional attempt in an challenge, emptory the trial an error of even if due to jury, impartial antee of trial an or loss deprivation does not constitute counsel, simply Martinez-Salazar, at 315-316 supra v. United States challenge. 2001). (Wash. If the defendant Fire, (III); v. 34 P3d State sat, on which no biased jury aby convicted subsequently “is right.” or constitutional rule-based any deprived has not been Since Martinez- Martinez-Salazar, at 307. supra States v. United adopted have courts Salazar, supreme additional state several neither challenge violates a peremptory the curative use of rule “that State right.” or statute-based nor a rule-based right, a constitutional (II) (C). Maynard, also Green v. See Hickman, at 421-422 supra (S.C. 2002). out, the have pointed those courts As some of 83, 86 field, playing not level the Bradham does reversal rule of automatic Hickman, tilts it in favor of the defendant. State v. at 426 but (Wise. (III) (V) (D) (C); Lindell, State v. 629 NW2d 248-249 2001). the rationale oí Bradham as follows: is majority quotes “[I]t
well established in
strikes are invaluable.
Georgia
[(3)].”
166.)
However,
(Maj.
p.
Bradham v.
at 639
[supra]
op.
acknowledgment
peremptory challenge
of the role of the
reinforc-
a defendant’s
to trial
an
does not
ing
right
impartial
preclude
*6
that such
are
United States v. Marti-
recognition
challenges
auxiliary.
(II).
nez-Salazar,
at 311
This
was
best
supra
principle
perhaps
articulated
the author of the
in
instant case:
majority opinion
The exercise of peremptory
long
strikes has
been recognized
as a
created to assist
in
a fair
procedure
litigants
obtaining
and not an
impartial
independent
substantive
right.
right
right
substantive
involved is the
to an
impartial
jury and
strikes are
one
peremptory
merely
possi-
ble
that can
used
procedure
jury. [Cits.]
be
to obtain such a
(4) (434
484) (1993).
State,
365,
Barner v.
263 Ga.
367
SE2d
In holding that defense counsel’s
use of a
unnecessary
peremp-
on a
tory challenge
disqualified juror
in a
trial
is harmful per
challenges
exhausted, Bradham,
(3),
se where such
are
at
supra
639
solely
very
relied
different principle
unnecessary
that the
per-
strike is harmless
where
emptory
per se
the defendant did not have
to exhaust his
peremptory challenges
disquali-
order to strike the
(2) (242
600)
juror.
State,
858,
fied
See Foster v.
240 Ga.
859
SE2d
(1978). That
principle
subsequently
abandoned
Harris v.
(2) (339
712)
State,
(1986),
255 Ga.
465
SE2d
which “held that
‘(t)he defendant’s use of his
strikes will ...
no
longer
a
play
role
our evaluation of the harm
caused
the refusal
State,
strike an unqualified juror.’ [Cit.]” Wallace v.
275 Ga.
(3) (572
579) (2002)
J.).
(Fletcher,
SE2d
C.
Accordingly,
the mere
exhaustion
waste of
strikes should not dictate
given action
regarding
disqualified juror
invariably
is either
harm-
or necessarily
Instead,
less
harmful.
the focus under current Georgia
law should be on whether any
juror was seated as the
unqualified
ultimate result of errors with respect
jurors challenged
for cause.
State,
See Kirkland v.
at 780
The trial
supra
ruling
court’s
did not
“result
in the
seating
any juror who should have been dismissed
[T]hat
cause.
. . .
would require
[Cits.]”
circumstance
reversal.
(III).
Martinez-Salazar,
United States v.
In my
at 316
supra
opinion,
therefore, Bradham,
(3),
at 640
should not have disapproved
previous
this Court’s
that a defendant who uses his
holding
peremp-
strikes to remove
meet
tory
disqualified jurors does not
his burden
complain
affirmatively showing
reversible error where he does
any
jurors. Kemp State,
other
v.
226 Ga.
about the inclusion
(2) (175
869) (1970).
State,
See also Patterson v.
239 Ga.
SE2d
(1) (238
2) (1977). Accordingly,
Bradham and those
409,
cases which have followed it should be
lowing:
SE2d
including
overruled,
the fol-
(1985);
McKinney
State,
SE2d
v.
[M]ost
error,
error,
and even most constitutional
is re-
“Virtually any error,
viewed for harmless error. . . .
under
[Cit.]
particular
If
circumstances, can
harmless.”
...
im-
be
subject
portant constitutional errors are
to harmless error
logically,
review, then,
a trial court’s erroneous denial of a
a
subsequent
challenge
for cause and the defendant’s
use of
challenge
subject
to cure that error should be
peremp-
A
harmless error review. ...
defendant’s use of
tory challenge
erroneous denial of a
to cure a trial court’s
process,
challenge
in the trial
and not
for cause is an error
proceeds.
affecting
*7
an error
the framework of how a
(III) (C)
supra
Hickman,
& in. 7. If a trial court’s
State v.
at 424-425
causing
not inevi
error in
the needless use of a
strike is
tably harmful,
deficient conduct in the same
then defense counsel’s
disturbing
regard
necessarily prejudicial.
is not
One
element
requires
the trial was
Bradham “is that it
a new trial
cases where
nearly perfect
unquestionably
v. Lin
and the verdict is
sound.” State
(II)
(V)(D).
supra
supra
Hickman,
at 422
dell,
at 249
See also State v.
(C).
reality
challenges
cause,
rule on
for
Given the
that trial courts
attorneys
peremptory strikes,
minute, often
exercise
and
deciding
gray
spot
pressure,
and under
“it
between shades of
incongruous that a
should receive a new trial sim
seems
defendant
counsel]
ply
judge [or
a mistake that
the trial
defense
made
because
jury’s
impact
reliability
Hick
verdict.” State v.
had no
on
(III) (C).
supra
States v. Martinez-
man,
at 425
See also United
(III).
attorney
here,
for an
Salazar,
Where, as
at 316
juror already
excused for
strike on a
accused “wastes”
cause,
itself,
a reason
not, in and of
create
that circumstance does
pro
probability
actions,
that,
the result of
able
but for counsel’s
ceeding
State, 939 SW2d
have
different. White v.
would
(Tex.
(II) (O) (Mo. 1997);
App.
State,
ant as she has probability, such a Fortson has failed to demonstrate seated, her conviction ever juror was any disqualified shown that attorney’s mistaken of her trial not be reversed on the basis should strike. use of a joins Justice Sears Presiding state that
I am authorized to this dissent.
Decided October 2003. Michael, D. Ronald Cook, Noell, Tolley, & Edward Tolley, Bates Houser, appellant. E. for Baker, Lavender, E. Attor- Attorney, District Thurbert
Robert W. General, General, Fisher, Attorney appel- Jason C. Assistant ney lee.
S03A1201. SELLERS v. THE STATE. Justice. Presiding
Sears, Sellers, from his conviction for appeals Frederick appellant, contends, Keith 2On Sellers felony appeal, murder of Williams.1 that by giving charge other that the trial court erred among things, the trial court erred Edge violated the v. State principles counsel; and his claim of ineffective assistance of trial ruling against into evidence. admitting that the trial court erred in a State’s exhibit contentions, merit Sellers’s we affirm his convic Finding any no tion for murder. verdict, light
1. the evidence in the most favorable to the Viewing would have authorized a rational trier we conclude that the evidence argument of fact to conclude that Sellers and the victim had an they when were to sell day began attempting of the crimes third late into the drugs person; argument persisted to a 25, 2001, May On Sellers was indicted for malice The crimes occurred on 2001. June *8 29, 2001, murder, murder, felony aggravated assault. On November found Sellers guilty guilty felony aggravated murder and assault. The trial of malice murder and conviction, felony merged aggravated assault conviction with the murder and sen- prison murder conviction. On November Sell- tenced Sellers to life 28, 2002, appointed On the trial court ers’s trial counsel filed a motion for new trial. June 25, 2002, appeal, appellate counsel filed an amended Sellers new counsel for and on October trial, 10, 2003, new trial. On March the trial court denied the motion for motion for new 25, 2003, appeal, April a notice of and on amended. On March Sellers filed appeal orally argued September appeal 2003. was docketed in this Court. The 865, 866-867