In the Supreme Court of Georgia



                                                 Decided: April 26, 2016


                    S16A0179. BROWN v. THE STATE.


      MELTON, Justice.

      Following a jury trial, Roger Shannon Brown appeals his convictions for

the malice murder and aggravated assault of Dennis Freeman and the aggravated

assault of Roger Emory. Brown contends, among other things, that the trial court

gave incomplete jury instructions and that he received ineffective assistance of

trial counsel.1 For the reasons set forth below, we affirm.



      1
        On June 26, 2008, Brown was indicted for the malice murder, felony
murder, and aggravated assault of Freeman; the aggravated assault of Emory;
and the aggravated assault of Timothy Shipman. Following a jury trial ending
on February 4, 2011, the jury found Brown guilty of all charges except those
relating to Shipman. The trial court sentenced Brown to life imprisonment for
the malice murder of Freeman and twenty consecutive years for the aggravated
assault of Emory. The conviction for felony murder was vacated by operation
of law, Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993), and the
remaining charge was merged for purposes of sentencing. On February 7, 2011,
Brown filed a motion for new trial, amended on October 14, 2013. The trial
court denied the motion on May 22, 2014, and Brown filed a timely notice of
appeal. Thereafter, his case was docketed to the January 2016 Term of this Court
and orally argued on January 4, 2016.
      1. Viewed in the light most favorable to the verdict, the record shows that,

on the evening of January 18, 2008, Emory, along with his wife, Tammy, his

daughter, Laura Free, Timothy Shipman, and Freeman, was working late in an

outside wood lot adjacent to a package store. Brown and fellow members of his

work crew arrived at the package store to cash their pay checks. At that time,

Brown walked behind the package store and began urinating next to a dumpster,

in view of Emory and his family and co-workers. Emory asked Brown to stop

urinating, and Brown started screaming that Emory was not showing him

respect. After a brief confrontation, Brown retrieved a claw hammer and pry bar

from his work truck parked nearby. Brown walked toward Emory and the others,

beating the pry bar and hammer together in a threatening manner. At this point,

Emory was standing by his pickup truck approximately ten feet from Brown,

and Freeman was standing approximately five to six feet from Brown.

According to Emory, Brown threatened to kill Freeman, who was silently

smoking a cigarette. Brown then swung the hammer and struck Freeman in the

side of the head, and, as Freeman fell to the ground, fatally wounded, Brown

screamed, "Die motherf---er." It is undisputed that Freeman neither challenged

Brown nor took any aggressive actions towards him.

                                        2
      Emory testified that Brown threatened to kill him next, so Emory retrieved

an ax handle from his own truck to defend himself. At that point, Brown

stopped, looked at Freeman’s body, and decided to leave the wood lot area.

Brown threw the hammer in a wood pile and discarded the pry bar into a pile of

boxes. Brown stopped momentarily at the doorway of the package store in order

to retrieve his work pay, but he soon fled. Brown was later apprehended by

police in a culvert near the scene of the murder.

      At trial, Brown testified and contended that he was merely acting in

self-defense to ward off Emory's belligerent advances with the ax handle. Brown

argued that he swung his hammer to make Emory step back, and he

unintentionally hit Freeman when he made that "warning" swing. Brown

admitted that Freeman was merely an innocent bystander in the confrontation

with Emory.

      This evidence was sufficient to enable the jury to find Brown guilty of the

crimes for which he was convicted beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307 (99 SCT 2781, 61 LE2d 560) (1979).

      2. Brown contends that the trial court erred by admitting into evidence

certain autopsy photographs of Freeman which showed the wound to his skull.

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We disagree.

      With regard to the images in question, the medical examiner testified that

the photographs were necessary to show the extent of the skull fracture suffered

by Freeman; therefore, the photographs were relevant. See Brown v. State, 250

Ga. 862, 867 (5) (302 SE2d 347) (1983) (holding, under former Evidence Code,

that “[a] photograph which depicts the victim after autopsy incisions are made

. . . will not be admissible unless necessary to show some material fact which

becomes apparent only because of the autopsy”). Before admitting the

photographs, the trial court carefully considered whether their probative value

was substantially outweighed by the danger of unfair prejudice. By finding that

the probative value was not substantially outweighed, the trial court did not

abuse its discretion in this case. Brown, supra.2

      3. Brown argues that the trial court committed plain error by administering

an incomplete jury charge regarding Brown’s defense of justification. We

disagree.



      2
       For a general discussion of the relevance of autopsy photographs under
the new evidence code, see Moss v. State, Case No. S15A1736 (decided March
7, 2016).
                                       4
      The trial court charged the jury: “To justify an assault, it is not essential

that there should be an actual assault made upon the defendant. Threats

accompanied by menaces, though the menaces do not amount to an actual

assault, may in some instances be sufficient to arouse a reasonable belief that

one’s life is in imminent danger.” (Emphasis supplied.) Brown contends that the

trial court should have given the standard pattern charge which refers to the

justification of a homicide rather than the justification of an assault.3

      A review of the record shows that the justification charge was initially

requested by the State, and it tracked the pattern charge by referring to a

homicide rather than an assault. During the charge conference, however, Brown

clarified that he only wanted a justification charge for the aggravated assault of

Emory and not for the counts regarding the malice murder and felony murder of

Freeman. The trial court and the parties concluded that there was no basis for

any self-defense claim against Freeman, who had merely been a bystander to the

interaction between Brown and Emory. Brown agreed that the justification

charge should only refer to Emory, not Freeman, because there was "no other


      3
       See Georgia Suggested Pattern Jury Instructions Volume II: Criminal
Cases, § 3.16.10.
                                        5
evidence except for that." As a result, the trial court carefully tailored the

justification charge to address the aggravated assault of Emory.

      Based on this record, even if the charge were erroneous, Brown invited

that error. As such, any contention of plain error by Brown has been effectively

waived for review. See Shaw v. State, 292 Ga. 871, 873 (2) n. 3 (742 SE2d 707)

(2013) (“[E]ven where plain error appears, reversal is not warranted if the error

was invited by the appellant. Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d

246 (2012)”). Even if not waived, however, Brown has not shown plain error.

      “Plain error” requires a clear or obvious legal error or defect not
      affirmatively waived by the appellant that must have affected the
      appellant's substantial rights, i.e., it affected the outcome of the trial
      court proceedings. Stated more succinctly, “the proper inquiry is
      whether the instruction was erroneous, whether it was obviously so,
      and whether it likely affected the outcome of the proceedings.” If
      the failure to give an instruction is shown to constitute such an
      error, the appellate court may remedy the error by exercising its
      discretion if the error seriously affects the fairness, integrity or
      public reputation of judicial proceedings.

(Citation and punctuation omitted.) Alvelo v. State, 290 Ga. 609, 614-615 (3)

(724 SE2d 377) (2012). In this case, there was no showing of plain error as

Brown has proven no harm. Even if the trial court had instructed the jury that

self-defense was applicable to a homicide in general, self-defense could be


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applicable to the specific murder of Freeman only if Brown’s intent to defend

himself against Emory could be transferred. The jury, however, found that

Brown did not act in self-defense against Emory when he swung the hammer,

and, as such, there was no justification defense which could have been

applicable to the murder of Freeman pursuant to any argument of transferred

intent. As such, the trial court did not commit plain error by tailoring a self-

defense instruction to the specific facts of this case.

      4. Finally, Brown contends that he received ineffective assistance of

counsel, arguing that the theory of defense that was presented at trial on his

behalf was untenable.

      In order to succeed on his claim of ineffective assistance, [Brown]
      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 SCT 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, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

                                         7
      The record shows that, in an attempt to prevent Brown from being

convicted of murder or felony murder, trial counsel raised dual defenses with

regard to Freeman’s death: (1) he argued that, under OCGA § 16-5-3 (b),

Brown committed involuntary manslaughter- by swinging the hammer at

Emory, Brown committed a criminally negligent act of self-defense (a lawful act

in an unlawful manner); and (2) in the alternative, under OCGA § 16-5-3 (a),

Brown committed only an act of reckless conduct by swinging the hammer at

Emory- a misdemeanor. Brown now contends that neither of these defenses was

legally viable, and, as such, he was somehow harmed.

      As a general matter, a tactical decision made by an attorney will not

support an ineffective assistance of counsel claim unless it was “so patently

unreasonable that no competent attorney would have chosen it.” McKenzie v.

State, 284 Ga. 342, 347 (667 SE2d 43) (2008). Here, trial counsel reasonably

tried to provide the jury with less severely punished alternatives to the charges

relating to the murder of Freeman, and, even if we accept Brown’s contention

that trial counsel’s defenses should not have been allowed by the trial court, they

were, in fact, allowed. The record shows that the trial court instructed the jury

on   justification,   involuntary    manslaughter,     and    reckless   conduct,

                                        8
notwithstanding Brown’s current contentions that the trial court was prohibited

from giving these instructions. See Demery v. State, 287 Ga. 805, 809 (3) (700

SE2d 373) (2010). So, at worst, Brown’s trial counsel was able to provide him

with extra defenses to which Brown now claims that he was not entitled. This

is a benefit to Brown, not a harm. There was no prejudice.

      Brown also contends trial counsel should have raised a defense based on

the concept of transferred intent. Specifically, Brown argues that trial counsel

performed deficiently because he did not argue that Brown’s intent to defend

himself from Emory should be transferred to the act of striking Freeman in the

head. This contention fails. The record shows that the jury rejected Brown’s

contention that he was acting in self-defense even towards Emory, as the jury

found Brown guilty of aggravated assault in that context. Therefore, even if it

could be said that trial counsel should have raised the issue of transferred intent,

there has been no showing of prejudice.

      In any event, Brown’s contention regarding a transferred intent defense

is wholly based on hindsight.

      But hindsight has no place in an assessment of the performance of
      trial counsel, the United States Supreme Court having instructed
      that “[a] fair assessment of attorney performance requires that every

                                         9
      effort be made to eliminate the distorting effects of hindsight.”
      Strickland, supra, 466 U.S. at 689 (III) (A). Instead, we “must
      indulge a strong presumption that counsel's conduct falls within the
      wide range of reasonable professional assistance,” id., and to
      overcome that presumption, [Brown] must show that no reasonable
      counsel would have failed to [raise a transferred intent defense].

(Citation omitted.) Jones v. State, 292 Ga. 593, 600–601 (7) (d) (740 SE2d 147)

(2013). Brown has failed to make this showing.

      Judgment affirmed. All the Justices concur.




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