In the Supreme Court of Georgia



                                      Decided: September 12, 2016


                   S16A1023. BRYSON et al. v. JACKSON.


      MELTON, Justice.

      Following the grant of Fanoris Jackson’s petition for a writ of habeas

corpus, Homer Bryson, in his capacity as commissioner, appeals, contending

that the habeas court erred by finding that Jackson’s appellate counsel rendered

ineffective assistance by failing to preserve for direct appeal any claim that trial

counsel performed deficiently. For the reasons set forth below, we reverse.

      1. The underlying facts of this case were previously set forth in Jackson’s

direct appeal. Jackson v. State, 270 Ga. 436 (510 SE2d 815) (1999).

      Around 3:00 a.m. on the date of the killing, Jackson's girlfriend, the
      mother of his son, arrived home from a date to the house which she
      shared with her parents, her brother, and her son. As she walked up
      the driveway, Jackson appeared, grabbed her by her jacket, asked
      where she had been, and threatened to kill her. Screaming, she
      slipped out of the jacket and ran to the house. As she told her
      mother what had happened outside, she saw Jackson's shadow on
      the exterior door of her bedroom. She went to the back door, saw
      Jackson there, and went to the front room where her father was
      sleeping. As she tried to explain to him what was happening,
      Jackson kicked in the back door. He forced his girlfriend's mother
      and brother to accompany him at gunpoint to the front room. When
      her father started to sit up, Jackson told him to stay down, shot him
      in the hand when he started to pull the covers up over himself, then
      shot him several more times, one of the shots wounding the victim
      fatally in the head. Jackson unplugged the telephone in that room,
      forced the others to go with him to the room where the child had
      been sleeping, had the telephone in that room unplugged, then
      required everyone else to sit on the bed while he sat in a chair in
      front of the door. From there he conducted a conversation with his
      girlfriend about her date and their relationship, then began to
      threaten to kill himself. His girlfriend's mother eventually persuaded
      Jackson to take the bullets from the gun and let her call the police.
      Jackson was arrested when police officers came to the house.

Id. at 436-437.

      In this earlier direct appeal, Jackson’s appellate counsel, who had been

appointed after the trial was complete, immediately filed a notice of appeal

rather than a motion for new trial. As a result, Jackson became procedurally

barred from raising any claim that trial counsel performed deficiently, as those

claims were not raised at the earliest practicable moment. See Glover v. State,

266 Ga. 183 (2) (465 SE2d 659) (1996). In line with this precedent, this Court

found any such claims to be procedurally barred when Jackson’s appellate

counsel attempted to raise them for the first time on appeal. As a result, Jackson

contended in his habeas petition that trial counsel rendered ineffective assistance


                                        2
by failing to: (1) present evidence of the victim's belligerent nature pursuant to

Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991); (2) object to Jackson's

absence from two discussions (one in chambers and one at the bench) regarding

the use of Chandler evidence; (3) obtain a jury instruction on justification; and

(4) request an instruction on voluntary manslaughter. Jackson further contended

that his appellate counsel had rendered ineffective assistance by failing to

preserve the issue of trial counsel’s deficiencies on appeal. The habeas court

found that Jackson’s appellate counsel performed deficiently by failing to

preserve Jackson’s claims that trial counsel was ineffective and that Jackson

suffered actual prejudice because trial counsel had, in fact, provided ineffective

assistance. We disagree.

      With regard to Jackson’s claims that his appellate counsel rendered

ineffective assistance, Jackson is required to

      show that his appellate lawyer rendered deficient performance and
      that actual prejudice resulted. Strickland v. Washington, [466 U.S.
      668, 687 (III), 104 SCt 2052, 80 LE2d 674 (1984)]; Battles v.
      Chapman, 269 Ga. 702 (506 SE2d 838) (1998); Smith v. Francis,
      253 Ga. 782, 783–784 (1) (325 SE2d 362) (1985). With respect to
      the performance prong, counsel on appeal is “strongly presumed to
      have rendered adequate assistance and made all significant
      decisions in the exercise of reasonable professional judgment.”
      Strickland v. Washington, supra[, 466 U.S.] at 690. Because

                                        3
      counsel's performance is considered in light of the circumstances
      surrounding the representation, reference to hindsight is
      inappropriate in judging counsel's performance. [Id.] at 689–690. .
      . . In order to find actual prejudice, a court must conclude that
      “there is a reasonable probability (i.e., a probability sufficient to
      undermine confidence in the outcome) that, but for counsel's
      unprofessional errors, the result of the proceeding would have been
      different [cit.].” Smith v. Francis, supra[, 253 Ga.] at 783(1). An
      ineffective assistance claim presents a mixed question of fact and
      law, and we accept the habeas court's findings of fact unless clearly
      erroneous but independently apply those facts to the law. Strickland
      v. Washington, supra[, 466 U.S.] at 698; Lajara v. State, 263 Ga.
      438, 440 (3) (435 SE2d 600) (1993).

Head v. Ferrell, 274 Ga. 399, 403–404 (V) (554 SE2d 155) (2001). In this

context, then, Jackson must show that, had appellate counsel preserved and

properly raised claims of ineffective assistance of trial counsel, the results of his

direct appeal would have been different. As explained more fully below,

Jackson has failed to make this showing, as the record does not support a

finding that trial counsel provided ineffective assistance.

      2. (a) Jackson contends that trial counsel rendered ineffective assistance

by failing to present certain Chandler evidence during his trial. In Chandler,

decided under the former Evidence Code of Georgia,1 this Court created an

      1
       The Chandler exception is no longer viable under Georgia's new
Evidence Code. See Hendrix v. State, 298 Ga. 60, 62 (2) (a) n. 2 (779 SE2d
322) (2015).
                                         4
evidentiary exception to the general rule that evidence of a victim's character is

not admissible at trial. Pursuant to this former exception, evidence of specific

acts of violence by a victim against third persons could be used where a

defendant claims a justification defense, but this could occur only after the

defendant satisfied his burden of showing that the Chandler evidence was

admissible.

      To meet that burden, the defendant must, at a minimum, (1) follow
      the procedural requirements for introducing the evidence, (2)
      establish the existence of prior violent acts by competent evidence,
      and (3) make a prima facie showing of justification. Laster v. State,
      268 Ga. 172, 174 (486 SE2d 153) (1997) (footnotes omitted). The
      trial court's decision to admit or exclude Chandler evidence is
      subject to reversal only for abuse of discretion. See Jones v. State,
      265 Ga. 138, 141 (454 SE2d 482) (1995).

Spencer v. State, 287 Ga. 434, 436 (2) (a) (696 SE2d 617) (2010).

      In this case, however, as found by the trial court, Jackson made no

showing of justification for shooting the victim. The evidence shows only that

Jackson broke into his girlfriend’s home and shot her unarmed father while he

was lying on a mattress on the living room floor. At the habeas hearing, Jackson

maintained that there was slight evidence of justification based on the cross-

examination of his girlfriend during trial and the fact that Jackson first shot the


                                        5
victim in the hand. From this latter fact, Jackson argues that the jury could have

inferred that Jackson believed the victim was reaching for a gun. This contention

by Jackson, and the concomitant finding by the habeas court, however, are not

supported by the trial transcript. The transcript shows that Jackson’s trial

counsel asked Jackson’s girlfriend whether Jackson inquired about the location

of her father’s gun prior to shooting him. Contrary to Jackson’s arguments,

Jackson’s girlfriend did not respond to this question affirmatively. Instead, she

repeatedly responded that she did not remember. In addition, although the

testimony supported a finding that Jackson first shot the victim in the hand, the

only evidence was that the victim was trying to cover his naked body with a

sheet after being confronted. So, there was, in fact, no testimony from Jackson’s

girlfriend that supported Jackson’s contentions of justification, and Jackson,

himself, did not testify. In the absence of any evidence of justification, Jackson

was not entitled to the admission of Chandler evidence, and trial counsel was

not ineffective for failing to file a motion to present this inadmissible evidence.

See, e.g., Lupoe v. State, 284 Ga. 576, 580 (3) (f) (669 SE2d 133) (2008)

(failure to file meritless motion “cannot amount to ineffective assistance”)

(citation omitted). Moreover, the evidence shows that Jackson was the aggressor

                                        6
in this situation, forcefully breaking into his girlfriend’s house and confronting

her family. As the initial aggressor, Jackson was not entitled to the defense of

justification. See OCGA § 16–3–21 (b) (3).

      (b) Jackson further contends that trial counsel rendered ineffective

assistance by failing to object to Jackson's absence from two discussions (one

in chambers and one at the bench) regarding the use of Chandler evidence.

Specifically, Jackson contends that he could have informed trial counsel what

his Chandler witnesses would have said, and he could have reminded trial

counsel that some of the potential Chandler witnesses were in the courtroom. As

already discussed, however, Jackson was not entitled to present Chandler

evidence at trial. As such, he has shown no prejudice with regard to this

contention. Head, supra.

      (c) Jackson maintains that trial counsel rendered ineffective assistance by

failing to insist on a jury instruction regarding justification. A review of the trial

transcript shows that, although trial counsel requested such an instruction, the

trial court found that there was no evidence of justification and denied the

request. As set forth above, the trial court’s ruling was proper, and, in any event,

trial counsel did, in fact, request an instruction. There was neither deficient

                                          7
representation nor prejudice.

      (d) Finally, Jackson contends that trial counsel rendered ineffective

assistance by failing to request an instruction on voluntary manslaughter as a

lesser included offense of murder. “[A] written request to charge a lesser

included offense must always be given if there is any evidence that the

defendant is guilty of the lesser included offense.” State v. Alvarado, 260 Ga.

563, 564 (397 SE2d 550) (1990). However, there was no evidence in this case

that would have required or supported a charge of voluntary manslaughter.

Although Jackson’s girlfriend testified that she had been on a date before being

attacked by Jackson, she further testified that she never informed Jackson of that

fact at any time prior to the attack. See Tepanca v. State, 297 Ga. 47 (4) (771

SE2d 879) (2015).

      Accordingly, because the evidence of record did not support a jury charge

on voluntary manslaughter, trial counsel was not ineffective for failing to

request such an unwarranted instruction. See, e.g., Durden v. State, 293 Ga. 89,

97 (6 ) (a) ( 744 SE2d 9) (2013), overruled on other grounds by Jeffrey v. State,

296 Ga. 713 (770 SE2d 585) (2015).

      3. Because trial counsel did not render ineffective assistance in any of the

                                        8
ways claimed by Jackson, Jackson cannot show that he suffered actual prejudice

resulting from his appellant counsel’s failure to preserve the issue of trial

counsel’s performance on direct appeal.

      Judgment reversed. All the Justice concur.




                                      9
