WHITE v. THE STATE
S19A1257
Supreme Court of Georgia
February 10, 2020
307 Ga. 882
Lazarus Jacobe White was convicted of malice murder and another crime in connection with the 2012 stabbing death of Terry Bell. He appeals, asserting error in the trial court‘s exclusion of testimony regarding Bell‘s alleged act of violence against a third party and three instances of ineffective assistance of trial counsel. For the reasons stated below, we affirm.1
Early the next morning, around 4:00 or 5:00 a.m., White said that he wanted to go get some cigarettes. Bell and Goodman went to their bedroom, undressed, and got into bed. White and Quidort left, with White driving Quidort‘s car, leaving Pope behind watching television in the living room. As the car pulled out of the driveway, White told Quidort that he “wanted a cigarette for the ride,” and White went back into the house.
Shortly after Pope asked Bell and Goodman for a cigarette and
After White returned to Quidort‘s car, he appeared agitated and began driving erratically. When Quidort noticed that White “had blood on him,” White claimed that “he got in a fight with his girlfriend,” Pope. White drove around back roads until Quidort,
A police investigator found a blood-covered knife by the side of Bell and Goodman‘s bed. Goodman identified that knife as the one that White used to stab and cut Bell, and testified that it was the same knife White had displayed earlier in the evening. Quidort testified that Bell usually carried a knife, but that Bell did not have it that evening because he left it in Quidort‘s car. Goodman testified that she did not find any other knife in the bedroom. When White turned himself in several days later, he did not appear to have any injuries other than some “old scratches” on his neck and a more recent scratch on his shin.
Though White has not challenged the sufficiency of the evidence to support his convictions, as is this Court‘s practice in murder cases, we have reviewed the record to determine the legal
2. White asserts that the trial court erred by barring evidence that Bell was involved in an altercation with a third party on the evening before the killing. We review that ruling for clear abuse of discretion. See Jones v. State, 299 Ga. 377, 383 (4) (788 S.E.2d 477) (2016).
Shortly before trial, White filed a “Notice of Defendant‘s Intent to Introduce Evidence of Violent Act Against a Third Party.” White asserted that the day before Bell was stabbed, Bell threatened a man named Frank with a knife, and that testimony would be elicited “only to show a specific act of violence against a third party in support of Mr. White‘s claim of self-defense.” After jury selection, the trial court took up the matter. White contended the evidence was admissible “only just to support his claim of self-defense later on in
At this hearing on the third-party incident, White testified that he never had possession of a knife, and that both Bell and Goodman suddenly and without warning attacked him, and that Goodman swung an “object” at him that he believed was Bell‘s knife. All three
The next day, before opening statements, the issue was briefly revisited, and White‘s counsel stated that “we are not proceeding on a self-defense claim.” The trial court rejected White‘s counsel‘s argument that the evidence could still be applied to a claim of accident, but allowed White‘s counsel to present evidence that Bell had a knife in his possession earlier in the day, without going “into the details of the act of violence against a third-party.” In his cross-
White‘s trial took place in April 2013, and the current Evidence Code therefore applies. Admissibility of evidence of a victim‘s character is now governed by
Here, as in Mohamud, we need not address that question. As the trial began, White‘s counsel expressly stated that he sought to admit evidence of the incident with Frank solely to show White‘s state of mind “to support [White‘s] claim of self-defense later on in the evening. And that‘s the only reason that — that we would introduce it.” The trial court‘s ruling was tentative, noting that White had presented no evidence of self-defense “at this point in time,” but might in the future. But White never asserted any claim
3. White alleges three instances of ineffective assistance of trial counsel. To prevail on his claim of ineffective assistance, White must prove both that the performance of his lawyer was professionally deficient and that he was prejudiced by this deficient performance. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 S. Ct. 2052, 80 L. Ed. 2d 674) (1984). To prove deficient performance, White must show that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 S.E.2d 637) (2013). To prove prejudice, White “must show that there is a reasonable probability that, but for counsel‘s
(a) White first alleges that his trial counsel was professionally deficient in failing to locate and secure the attendance of Frank, the alleged participant in the altercation with Bell the day before the stabbing. But White has not demonstrated a reasonable probability that the result of the trial would have changed, but for his trial counsel‘s failure to secure Frank‘s attendance at trial. Neither White nor the State presented any evidence at trial to support a claim of self-defense. Therefore, as we note in Division 2, White has failed to show how the proposed testimony of Frank could have been relevant to any issue at trial and accordingly has not shown a reasonable
(b) Relying upon Zamora v. State, 291 Ga. 512 (731 S.E.2d 658) (2012), White contends that his trial counsel was ineffective in failing to preserve his right to be present for bench conferences. To be sure, White had a “right under the Georgia Constitution to be present during all critical stages of the criminal proceeding against him.” Id. at 517 (7) (b). A bench conference could be a critical stage of a criminal proceeding, depending upon the subject matter of the conference. See Brewner v. State, 302 Ga. 6, 10 (II) (804 S.E.2d 94) (2017). But, as this Court also observed in Zamora,
[a] defendant may personally waive his right to be present at a stage in the trial, or counsel may waive this right for the defendant. . . . [I]n order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him.
(Citations and punctuation omitted.) 291 Ga. at 519 (7) (c). See also Smith v. State, 298 Ga. 406, 409-410 (2) (782 S.E.2d 269) (2016).
DEFENSE COUNSEL: Your Honor, on discussion with Mr. White, he said that he would waive his presence at any bench conferences —
COURT: Is that your decision, Mr. White?
DEFENDANT: Yes, sir.
COURT: All right. Thank you.
Thus, the record shows that White clearly waived his right to be present at bench conferences after consultation with counsel. As such, trial counsel was not ineffective in failing to preserve a right that White affirmatively waived. See generally Hampton v. State, 282 Ga. 490, 492 (2) (a) (651 S.E.2d 698) (2007) (trial counsel not ineffective in failing to object to trial court interviewing jurors outside defendant‘s presence because defendant “personally and
(c) Finally, White asserts that his trial counsel was professionally deficient in failing to move for a mistrial when his character was placed in evidence by Goodman‘s testimony regarding White‘s exclamation that he would “end up going back to prison. I‘m gonna end up taking me somebody.” White‘s counsel immediately objected, and at a bench conference, the State argued that the exclamation was evidence of White‘s state of mind, further noting that White intended to testify, and in that event the State intended to impeach White with his prior convictions. White‘s trial counsel acknowledged White‘s criminal record and that, if White took the stand, “at that point in time, it may be appropriate.” He nevertheless objected that, at that time in the trial, no basis had been shown for the statement‘s admissibility. The State offered to “move on” and to instruct the witness “not to talk about that anymore,” and the trial court observed that, “assuming the Defendant takes the stand, then you could, obviously, bring [Goodman] back in rebuttal.” When asked if he had “anything else,” White‘s trial counsel responded,
In denying White‘s motion for new trial, the trial court found that the reference to prison generally would be considered character evidence, but that it was relevant to White‘s motive and intent to commit the crimes at issue. In addition, the requirements of
Evidence of other acts is inextricably intertwined with the evidence regarding the charged offense if it forms an integral and natural part of the witness‘s accounts of the circumstances surrounding the offenses for which the defendant was indicted. And this sort of intrinsic evidence remains admissible even if it incidentally places the defendant‘s character at issue.
(Citations and punctuation omitted.) Id. at 486 (IV) (d). White‘s behavior a few hours before the killing, especially in brandishing the
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 10, 2020.
Murder. Spalding Superior Court. Before Judge Sams.
Brown & Gill, Angela B. Dillon, for appellant.
Benjamin D. Coker, District Attorney, E. Morgan Kendrick, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vanessa T. Sassano,