1. Appellant and Amanda Harrison Spell married in 2004 and divorced in 2005. Even after their divorce, they sometimes would get together, and on the evening of July 30, 2007, Amanda visited Appellant at his home. Early the next morning, Appellant went to the Wayne County home that Amanda shared with her parents, Gary and Jeaney Harrison. Appellant confronted Amanda and accused her of having stolen $150 from his wallet. They argued, and at some point, Amanda drew a .22-caliber revolver. Appellant disarmed her, and he then fired a round into the sofa on which she was seated.
Having heard a gunshot, Mr. Harrison then emerged from a bedroom, carrying a 12-gauge shotgun. He fired or attempted to fire the shotgun at Appellant, but Appellant was not wounded in either event. At that point, Appellant fatally shot Mr. Harrison with the revolver and retrieved the shotgun. As Ms. Harrison ran from the house, Appellant shot her in the back with the shotgun.
(a) Appellant does not dispute that the evidence is legally sufficient to sustain
(b) Appellant does not raise any merger error, but we have discretion to correct merger errors on direct appeal, see Nazario v. State,
2. Appellant claims that he was denied the effective assistance of counsel when his lawyers failed to object to evidence that was, he says, inadmissible under Mallory v. State,
[Appellant] is a man who [has] been told several times to turn himself in, but he's going to Mexico. I'm sorry, is that what a guilty man does? Of course. Is that what someone who's innocent, who has no-who has-I was just defending myself. I need to go talk to the police. No. You don't flee to Mexico if you've done nothing wrong.
Appellant's lawyers objected to neither the evidence nor the argument.
To prevail on a claim of ineffective assistance, Appellant must prove both that the performance of his lawyers was deficient and that he was prejudiced by this deficient performance. See Strickland v. Washington,
By the time Jones testified, the prosecution already had presented overwhelming evidence that Appellant had killed Amanda and both of her parents and that the killings of Amanda and her mother were unlawful homicides. Although the evidence presented by the prosecution to that point suggested that Appellant may have been justified in killing
The testimony by Jones about which Appellant now complains-that Jones urged Appellant to go to the police but Appellant said he "couldn't" because he was scared-added little to the prosecution's strong case. To the extent that this testimony suggested
Considering all of the circumstances with which Appellant's lawyers were presented when Jones gave the testimony about which Appellant now complains-the limited downside of that testimony, its potential upside, the other strong evidence against Appellant, and the looming threat of a sentencing trial and possible death sentence-it was not unreasonable for the lawyers to forgo an objection to Jones's testimony. See Marshall v. State,
Appellant likewise has failed to establish that his lawyers rendered ineffective assistance when they failed to object to the prosecuting attorney referencing Jones's testimony in his closing argument. In the first place, Appellant having strategically forgone an objection to the testimony itself, that testimony-even if it might have been objectionable under Mallory when offered
Judgment affirmed in part and vacated in part.
All the Justices concur.
Notes
Appellant committed his crimes in July 2007. A Wayne County grand jury indicted Appellant in November 2007, charging him with the murder of Amanda Harrison Spell, the murder of Jeaney Harrison, the murder of Gary Harrison, an aggravated battery upon Ms. Harrison, an aggravated assault upon Ms. Harrison, cruelty to children, the unlawful possession of a firearm during the commission of a felony, and the unlawful possession of a firearm by a convicted felon. The prosecution gave notice of its intent to seek the death penalty, and the trial court moved venue to Glynn County for purposes of trial. In January 2012, Appellant was tried by a Glynn County jury. The trial court acquitted him by directed verdict of the murder of Mr. Harrison and of cruelty to children, and the jury found him guilty on all the remaining charges. After a sentencing trial, the jury declined to impose the death penalty. The trial court sentenced Appellant to consecutive terms of imprisonment for life without the possibility of parole for the murders of Amanda and Ms. Harrison, consecutive terms of imprisonment for twenty years for the aggravated battery and aggravated assault, and consecutive terms of imprisonment for five years for each of the firearm offenses. Appellant timely filed a motion for new trial, which he amended in August 2015. The trial court denied the motion for new trial in October 2017, and Appellant timely filed a notice of appeal. His appeal was docketed in this Court for the term beginning in December 2018 and submitted for decision on the briefs.
Ms. Harrison was wounded but escaped to the home of a neighbor. Her wounds, however, proved fatal, and she died four days later.
Mallory was decided under our old Evidence Code, and this case was tried under the old Evidence Code. We note, however, our recent decision in Orr v. State, --- Ga. ---- (2),
We note that Appellant's lawyers were at least partially successful; the jury ultimately declined to impose the death penalty.
The State has not asked us in this case to reconsider "whether Mallory's exclusionary rule should continue to be applied to cases governed by the old Evidence Code." Orr v. State, --- Ga. ---- (2) n.6,