Following a jury trial, Jermaine Revere was found guilty of murder and various other offenses in connection with the stabbing death of Angelo Patterson.
1. Viewed in the light most favorable to the verdict, the record shows that Patterson ran a nonprofit organization that provided assistance to released felons who were attempting to reintegrate into society. Revere was one of the released felons to whom Patterson was serving as a mentor. On August 16, 2011, Patterson picked up Revere from an Atlanta MARTA station and took Revere back to his home, where Revere stabbed him in the throat and the back, killing him. Revere stole Patterson’s wallet, and he left the scene in Patterson’s car. When he was called to meet with his probation officer about a week later, Revere drove to the appointment in Patterson’s car, but he parked the car away from the building and hid the keys to the car so that his probation officer would not find them on him at the meeting.
At trial, Revere testified that he had stabbed Patterson by accident while acting in self-defense. Specifically, Revere claimed that, while he was lying down on a sofa in Patterson’s home, Patterson made an unwanted sexual advance upon him. According to Revere, he then jumped up from the sofa to confront Patterson about his actions, and Patterson began backing away from Revere
The jury was authorized to reject Revere’s contentions that the stabbing took place by accident or while he was acting in self-defense and find that Revere was guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia,
2. Revere contends that his trial counsel was ineffective for failing to (a) object or request a mistrial after three of the State’s witnesses improperly placed Patterson’s character in issue, and (b) introduce evidence of Patterson’s prior felony convictions to rebut or impeach the State’s improper character evidence. We disagree.
In order to succeed on his claim of ineffective assistance, [Revere] 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 SC[t] 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State,277 Ga. 505 (3) (591 SE2d 782 ) (2004). In reviewing the trial court’s decision, “‘[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State,277 Ga. 75 , 76 (586 SE2d 313 ) (2003).
Wright v. State,
(a) Three witnesses with whom Patterson had lived and to whom, like Revere, he had served as a mentor, testified at trial. These State’s witnesses were Sanchez Griffin, Shannon Williams (Griffin’s brother), and Brittani Ledford. Revere contends that these witnesses improperly placed Patterson’s good character in issue and that trial counsel should have objected or moved for a mistrial in response to the testimony from these witnesses when (1) Griffin was asked why he chose Patterson as a mentor and he testified that it was because Patterson was a “good dude”; (2) Williams testified that Patterson was “like a father to [him]” and that he did not know where he would have gone if it had not been for Patterson taking him in; and (3) in response to questions about whether Patterson had ever made inappropriate sexual advances on her or any of his mentees, Ledford testified that Patterson had not, and that she knew “that he wouldn’t have[,] [because] [t]hat’s not his character.” For the reasons that follow, we agree with Revere that counsel should have objected to these inadmissible statements and that he performed deficiently by failing to do so. However,
The admissibility of the aforementioned testimony is controlled by OCGA § 24-4-404 (a) (2) (Rule 404 (a) (2)) and § 24-4-405 (a) (Rule 405 (a)) of Georgia’s new Evidence Code.
Evidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, except for . . . [s]ubject to the limitations imposedby Code Section 24-4-412 [dealing with a witness’s past sexual history], evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same; or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor [.]
And, under Rule 405 (a):
In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion.
Consistent with Federal Rule of Evidence 404 (a) (2), the Rule upon which Georgia’s Rule 404 (a) (2) is based, the State may only introduce evidence of a victim’s good character to rebut evidence of a pertinent character trait of the victim after the defendant has first introduced such evidence at trial. Federal Rule 404 (a) (2) states in relevant part:
Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. [However,] [t]he following exceptions apply in a criminal case .... [S]ubject to the limitations in Rule 412 [dealing with a witness’s past sexual history], a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may . . . offer evidence to rebut it. .. . [I]n a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(Emphasis supplied.) Id. at (a) (1), (2) (B) (i) and (C).
Here, the testimony mentioned above was introduced during the State’s case-in-chief before Revere offered any testimony or evidence of his own regarding Patterson’s
However, counsel’s failure to object to the aforementioned evidence was not prejudicial. The burden of showing a reasonable probability that the outcome would have been different but for counsel’s deficient performance, “though not impossible to carry, is a heavy one.” Arnold v. State,
(b) Revere also contends that his trial counsel was ineffective for failing to introduce evidence of Patterson’s alleged prior crimes from Texas relating to sexual offenses to rebut the good character evidence presented by the State’s witnesses. However, to the extent that Revere
bases his contention on Chandler v. State,261 Ga. 402 , 407 (3) (c) (405 SE2d 669 ) (1991), in which this Court created an evidentiary exception “permit [ting] a defendant claiming justification to introduce evidence of specific acts of violence by the victim against third persons[,]” [his claim must fail]. Chandler . . . was decided under Georgia’s old Evidence Code, and, it related specifically to the application of that old code. The present case, because it was tried on or after January 1, 2013, is subject to the new Evidence Code, under which the admissibility of evidence of a victim’s character is governed by OCGA §§ 24-4-404 and 24-4-405. . . . [T]he evidentiary rule set forth in Chan dler does not remain viable under the new Evidence Code, and [Revere’s] argument based on this outdated precedent fails.
Mohamud v. State,
Judgment affirmed.
Notes
On November 22, 2011, Revere was indicted for malice murder, felony murder predicated on aggravated assault, aggravated assault, theft by taking, and possession of a knife during the commission of a felony. Following a February 28-March 5, 2013 jury trial, Revere was found guilty on all counts. Revere was sentenced to life imprisonment for murder, ten years concurrent for theft by taking, and five consecutive years for possession of a knife during the commission of a felony. Although the trial court purported to merge the felony murder counts into the malice murder count, the felony murder counts were actually vacated by operation of law, Malcolm v. State,
Because Revere’s trial took place after January 1, 2013, Georgia’s new Evidence Code is applicable here.
We note that, while the language in Federal Rule 404 (a) (2) differs slightly from that of Georgia’s Rule 404 (a) (2), the differences between the two Rules are not substantive. Through the adoption of the new Evidence Code, it was “the intent of the General Assembly ... to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1, 2013, to the extent that such interpretation is consistent with the Constitution of Georgia.” (Citation and punctuation omitted.) Parker v. State,