Chеlsea Jackson was tried by a Pulaski County jury and convicted of selling cocaine, in violation of OCGA § 16-13-30. He now appeals from the denial of his motion for a new trial, arguing that his lawyer’s failure to object to the introduction of improper character evidence constituted ineffective assistance of counsel. Jackson further asserts that the court belоw committed plain error when it failed to instruct the jury, sua sponte, to disregard the improper character evidence. We find no error and affirm.
On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence, and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State,
Lawson testified at trial and explained that on the day in question he made two cocaine purchases from two different people, with the second purchase being made from Jackson. After he made the buy from Jackson, Lawson then returned to a designated location and met again with the narcotics agent, to whom he gave the drugs.
Lawson also authenticated the audio-video recording he made on the day in question, and that recording was played in its entirety for the jury. The recording, which is approximately 30 minutes long, shows Lawson meeting with and receiving money from the narcotics agent and then chronicles his movеments as he drives around looking for opportunities to purchase drugs. Lawson’s first purchase of cocaine occurred approximately sixteen minutes into the recording, and the transaction took less than one minute. He then relayed the address of the home where he made the purchase to law enforcement. Shortly thereafter, Lawson can be heard saying, “I got one. Going to see if I can get me one more.”
Approximately two minutes after he completed his first drug buy, the recording shows Lawson slowing his car and then saying out of his window, “Good to see you, Red.”
During deliberations, the jury asked to review that portion of the video relating to Jackson. The judge then allowed the jurors to rеview approximately three minutes of the recording, although it is not clear whether that portion of the video included Lawson’s statement “the one that shot Freak Nasty in the stomach.”
At the hearing on Jackson’s motion for a new trial, his trial counsel testified that although he listened to the entire recording prior to trial, he did not hear Lawson’s remark about “the one that shot Freak Nasty.” Nor did he hear that remark when he reviewed the recording with Jackson just prior to it being introduced into evidence, and Jackson did not point the remark out to him. The lawyer further stated that he did not hear the remark when the recording was played at trial for the jury and, if he had, he would have objected immediately.
Both Jackson and his grandmother also testifiеd at the motion for new trial hearing, and each testified that they heard Lawson’s remark regarding the shooting of Freak Nasty when the recording was played at trial. Jackson explained that he did not point out the statement to his lawyer, because he did not realize it was objectionable.
1. We first address Jackson’s claim that his attorney’s failure to object to Lawson’s remark about “the one that shot Freak Nasty in the stomach” constituted ineffective assistance of counsel. To prevail on this claim, Jackson must prove both that his lawyer’s performance was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington,
We assume for purposes of this appeal that the jury had no choice but to view Lawson’s statement, “the one that shot Freak Nasty in the stomach,” as referring to Jackson. Based on this assumption, the statеment was clearly objectionable as improper character evidence. See Johnson v. State,
To demonstrate that he sufferеd prejudice as a result of his attorney’s performance, Jackson must prove “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 694 (III) (B). “This burden, though not impossible to carry, is а heavy one.” Arnold v. State,
When determining whether the unchallenged introduction of improper character evidence has prejudiced the defendant, Georgia’s appellate courts consider a number of factors. These include whether the reference to the improper character evidence is isolated and brief, whether the jury’s exposure was repeated or extensive, and whether the introduction of the objectionable evidence was inadvertent or whether it was deliberately elicited by the State. See Toomer v. State,
This Court has found prejudice where the case comes down to a question of whether the jury believes the version of events as told by the defendant or as told by a witness for the State, and the improper character evidence reflects directly on the defendant’s credibility. For example, in Emilio v. State,
We have also found prejudice where the defendant is being tried for a violent crime and the improper character evidence tends to show the defendant’s propensity to violence. Thus, in Ward, supra, the defendant had been convicted of multiple counts of armed robbеry, aggravated assault, false imprisonment, and possession of a firearm during the commission of a felony, and we found that he was prejudiced by his lawyer’s failure to object to testimony that he “was a drug trafficker who always carried a gun, that he was a dangerous man, [and] that he was the shooter in the similar transaction.” Id. at 529 (5) (b). See also Merritt, supra at 460 (2) (defendant in murder trial prеjudiced by admission of testimony that he had threatened his grandfather with a Molotov cocktail because “he just wanted to see a man burn”); Pelowski v. State,
Finally, we analyze whether, considering the foregoing factors and in light of the evidence presented at trial, there was a possibility that the jury’s exposure to the improper character evidence contributed to the guilty verdict. See Kitchens v. State,
Examining the relevant factors together with the evidence presented against Jackson at trial, we find that he has failed to prove a reasonable probability that Lawson’s remark about the shooting of “Freak Nasty’ contributed to the guilty verdict. Although the remark could be interpreted as referring to Jackson, it was nоt an affirmative statement that Jackson was the one that shot Freak Nasty. Moreover, the State did not elicit this statement, and the evidence indicates that it was likely heard by the jury only once, and no more than twice.
Most importantly, the record shows that the evidence of Jackson’s guilt was substantial. It consisted not only of the testimony of Lawson, but also of the recording that Lawson made. And although that recording “does not mention cocaine or show an actual exchange between [Jackson] and the informant, ... it does clearly show [Jackson’s] face and it supports [Lawson’s] testimony regarding” Lawson’s actions on the day in question and his transaction with Jackson. Culpepper v. State,
2. Jackson also contends that the court’s failure to instruct the jury, sua sponte, to disregard Lawson’s remark regarding the shooting constitutes reversible error. We disagree.
For the reasons set forth above, we affirm the order of the court below denying Jackson’s motion for a new trial.
Judgment affirmed.
Notes
According to Lawson, he kept the cocaine purchases separate by placing the drugs from the first transaction in the car’s glove compartment, while keeping the drugs purchased from Jackson in the passenger compartment. He was therefore able to identify for law enforcement what cocaine he had obtained from Jackson.
It was established at trial that Jackson’s nickname was L’il Red.
Despite Jackson’s assertion to the contrary, there is no evidence that the remark was played repeatedly for the jury. Rather, the recording was played in its entirety for the jury only once. There is also a possibility that the remark may have been heard by the jurors a second time, when they asked to review that part of the video relating to Jackson. Jackson’s lawyer testified at the heаring below that his recollection was that the jury began viewing the video at the point where Lawson first saw and spoke to Jackson. The jury then viewed approximately three minutes of the recording. That portion may or may not have included the remark in question, given that Lawson made that remark approximately three minutes after he first approached Jackson.