                                FIRST DIVISION
                                BARNES, P. J.,
                            MERCIER and BROWN, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                       March 9, 2020




In the Court of Appeals of Georgia
 A19A2017. JACKSON v. THE STATE.

       BROWN, Judge.

       Dell Jackson appeals from his convictions of armed robbery and possession of

a firearm during the commission of a felony. He asserts that insufficient evidence

supports his convictions and that he is entitled to a new trial due to ineffective

assistance of counsel. For the reasons explained below, we agree that Jackson is

entitled to a new trial.

        On appeal from a criminal conviction, the standard for reviewing the

sufficiency of the evidence

       is whether a rational trier of fact could have found the defendant guilty
       beyond a reasonable doubt. This Court does not reweigh evidence or
       resolve conflicts in testimony; instead, evidence is reviewed in a light
      most favorable to the verdict, with deference to the jury’s assessment of
      the weight and credibility of the evidence.


(Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506 (739 SE2d 313)

(2013). So viewed, the record shows that the victim, who worked at a café, went to

the bank around 1:30 a.m. to 2:00 a.m. after he got off work. After leaving the bank,

he went to a convenience store before driving home. When he was around halfway

home, he noticed that a car appeared to be following him. After parking, he walked

to the end of his driveway to close the gate and the passenger in the car that had

followed him asked him for directions. When the man asked him for “a light,” the

victim walked back to his car, retrieved a lighter, and gave it to the passenger. As he

turned away, the passenger, who was still inside the car, “pulled a gun,” pointed it at

the victim’s head and told him to “[g]et on the ground.” The man got out of the car,

took his wallet, got back in the car, and left. The victim testified that a bright light

post near his driveway allowed him to get a good look at the robber, who was wearing

a white T-shirt, some jeans, and white tennis shoes. The gun was black and “either

a 9-millimeter or a .45.”

      Immediately after he was robbed, the victim called 911, and police officers

arrived within “three minutes, if that.” They found a Virginia College lanyard with

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keys in the yard that did not belong to the victim. A patrol officer saw a car matching

the description of the car involved in the armed robbery, a Dodge Charger, and

followed it into an apartment complex. She saw the driver get out of the car and go

inside an apartment, while the passenger got out and “ducked down” between two

cars. She got out of her patrol car, asked the passenger what he was doing, and

learned that he was looking for his keys to a Lincoln MKS. When she asked where

he had been, he said he had just left an apartment after “having relations with some

female.” She asked for the passenger’s identification, learned that he was Jackson,

used her radio to contact the primary investigating officer to confirm the physical

description and clothing, and advised that Jackson stated he was looking for his keys.

      The police brought the victim to Jackson’s location at the apartment complex,

where he identified Jackson as the man who had robbed him. The lanyard and keys

were also taken to that location, where they opened the Lincoln MKS “that was

registered to Mr. Jackson.” After being placed under arrest and read his Miranda

rights, Jackson told the officer that he had not been in the Dodge Charger that

evening, that someone named James was the driver, that someone named Trent was

the passenger, and that he was with a woman named Ashley during the robbery. He

could not provide her number to the officer because his pink iPhone had fallen out of

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his back pocket, which had a hole in it. At no time during the interview did Jackson

state that he had been coerced to commit an armed robbery by Brandon Clark. Police

investigation revealed that the Dodge Charger was registered in the name of Brandon

Clark’s wife, and that the car was parked in front of their apartment after the robbery.

A search of the Dodge Charger revealed a pink iPhone in the front passenger seat, and

a loaded 9-millimeter chrome pistol with a black handle under the front passenger

seat. Approximately six weeks after the robbery, Jackson and his trial counsel met

with the detective assigned to the case to provide information about “other events”

that might help with bond and “the main case”; the meeting was video recorded and

played in its entirety for the jury. In this meeting, Jackson explained that he was

riding with Clark because Clark owed him $80 and asked if he wanted to ride with

him to go pick it up. After driving Jackson to a house and leaving him outside for

approximately 30 minutes, Clark came out with red eyes and a white substance in his

nose. When Jackson asked Clark to take him to his car, Clark said, “I’m about to go

get the money.”

      According to Jackson, Clark then drove to two banks and followed cars that

had pulled away from an ATM before following the victim in this case. After

following the victim to his home, Clark pulled out a chrome .45. When Jackson asked

                                           4
what it was for, Clark said “you’re about to see.” Jackson told him not to do it and to

“chill.” Clark rolled down the passenger side window beside Jackson and asked the

victim a question. When the victim returned to his car, Clark tried to hand the gun to

Jackson and told him “to go see what he got there.” Jackson asked Clark to take him

“to [his] car or [he] would get out and walk.” After the victim closed his car door,

Jackson felt Clark press the gun on his leg in a twisting motion and Clark told him

again “to go see what he got.” Jackson explained that at that moment, he knew Clark

was serious and he took the chrome gun, got out of the car with it, and robbed the

victim. From the moment Clark put the gun on his leg, Jackson was scared. As they

were leaving the scene of the robbery, Jackson threw the victim’s wallet and the

chrome gun out the window. When questioned by the detective, Jackson said that the

gun held to his leg was a small black gun that could fit in a pocket.1 As Jackson was

explaining why he did not run away after Clark handed him a gun, his attorney

interrupted him, stating, “Dell, Dell, you’re not going to convince us that this was

reasonable behavior. It wasn’t. . . . What I told you the first time I met you . . . kind

of crazy.” She then asked another question clarifying that he did not know whether

      1
          The police never recovered a small, black gun that could fit inside someone’s
pocket.


                                            5
the chrome gun provided by Clark was loaded. Finally, Jackson explained that he did

not initially tell the police about Clark’s involvement because Clark threatened to kill

him if he told anybody about it.

      Although Jackson did not testify at trial, he presented testimony from a

barbershop coworker that Jackson and Clark had an altercation when Clark came into

the barbershop approximately four months after the robbery. They “exchanged words

verbally . . . cussing back and forth,” and Clark threatened Jackson by “pretty much

telling him that he should have been dead.” He explained “they got to fighting” and

Clark pulled a gun on Jackson. According to the coworker, Jackson reported this

incident to the police.

      1. Jackson asserts that insufficient evidence supports his armed robbery

conviction because the State did not disprove coercion. We disagree.

      Coercion is, of course, a defense to any crime except murder. OCGA §
      16-3-26. However, the fear engendered by the coercion must be of
      present and immediate violence at the time the coerced crime is being
      committed. Coercion is a defense only if the person coerced has no
      reasonable way, other than committing the crime, to escape the threat of
      harm. That question is for the jury, as are questions of the credibility of
      the witnesses.




                                           6
(Citations and punctuation omitted.) Stitt v. State, 190 Ga. App. 58, 59 (378 SE2d

168) (1989). See also Bailey v. State, 245 Ga. App. 852, 854 (1) (539 SE2d 191)

(2000) (whether State has met its burden to disprove coercion is for the jury). We find

that a reasonable finder of fact could conclude that the State disproved Jackson’s

coercion defense based upon his failure to tell the police that he was coerced in the

first statement he gave immediately after his arrest and the fact that he had an

opportunity to escape when he exited the car to rob the victim. See Edwards v. State,

285 Ga. App. 227, 228 (1) (645 SE2d 699) (2007) (failure to mention coercion in

statement to police can be used to disprove coercion); Stitt, 190 Ga. App. at 59

(opportunity to escape can be used to disprove coercion).

      2. Jackson asserts that he is entitled to a new trial because his attorney failed

to seek redaction of the comments she made about the reasonableness of his story

during his videotaped interview.

      In order to succeed on his claim of ineffective assistance, [Jackson] 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 burden of proving either prong of the Strickland test, the



                                          7
      reviewing court does not have to examine the other prong. Id. at 697
      (IV).


(Citation and punctuation omitted.) Baugh v. State, 293 Ga. 52, 54 (2) (743 SE2d

407) (2013). “The test for determining whether trial counsel’s performance was

deficient is whether a reasonable lawyer could have acted, under the same

circumstances, as defense counsel acted before and during the trial.” (Citation and

punctuation omitted.) Davis v. State, 342 Ga. App. 889, 896 (2) (806 SE2d 2) (2017).

In this case, trial counsel testified in the motion for new trial hearing that she did not

consider filing a motion to redact her comments and that she should have done so.

She explained that she watched the interview video with her client, his wife, and her

assistant a few days before trial and advised Jackson that he should enter a plea rather

than going to trial. Although they had “intended to enter a plea the whole time,” he

changed his mind on a Monday, and they “picked a jury that same day.” At that point,

she had not subpoenaed any witnesses because she “really, really thought” that

Jackson would plead guilty. The case was tried on Wednesday and Thursday. Trial

counsel offered no strategic reason for failing to ask that the interview be redacted

before it was played for the jury. She stated that Jackson’s main defense was

coercion.

                                            8
      In trial counsel’s opening argument, she stated that this was a case about

“[c]oercion, duress, having a gun pointed against your leg and being forced to rob

somebody, contacting the detective and telling your side of the story and the detective

not believing a word you say; these are the things you’re going to hear about this

week.” She also explained:

      I’m sure [the State] is going to play the tape of Dell Jackson speaking to
      the detective. . . . I’m sure that’s going to happen. What you don’t know,
      and you will find out, is I called that meeting. I did. On Dell Jackson’s
      request. Because he really, really, really wanted to meet with the
      detective and tell him what happened, what really happened that night.


During its closing argument, the State quoted trial counsel’s statement in the video

as follows:

      And remember the response at some point when they’re talking about
      that from [trial counsel.] She goes, Dell, you’re not going to convince us
      that this was reasonable behavior. It wasn’t. That’s what I told you the
      first time I met you. It’s kind of crazy. Even his own attorney at that
      interview thought that’s not reasonable behavior. That’s not what a
      reasonable person would do. And under the law, there has to be a
      reasonable cause to believe. Not what Dell Jackson thought, . . . but
      what he reasonably believed. But his action was not reasonable
      behavior, just like [trial counsel] said in the tape.



                                           9
Based upon this record, it is obvious that no reasonable attorney would have failed

to seek redaction of her comments from the videotape and that a trial court would

have abused its discretion in failing to authorize such a redaction. The attorney’s

statements related to opinion, not fact, and were not relevant evidence. See OCGA

§ 24-4-401 (relevant evidence has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence”) (emphasis supplied); OCGA § 24-4-

402 (“Evidence which is not relevant shall not be admissible.”). Even if they were

somehow relevant and admissible, there can be no doubt that a trial court would

abuse its discretion by failing to conclude that the statements should be excluded

under OCGA § 24-4-403 based upon the danger of unfair prejudice.

      Having concluded that counsel’s performance was deficient, we must now

determine whether a reasonable probability exists that the trial result would have been

different if not for the deficient performance. See Baugh, 293 Ga. at 54 (2). While the

State submitted evidence sufficient to disprove the coercion defense asserted by

Jackson in the video, Jackson presented evidence at trial of a subsequent altercation

between himself and Clark, during which Clark stated that Jackson should be dead.

Given the damaging nature of counsel’s unredacted comments used to great effect by

                                          10
the State in its closing argument and the fact that the credibility of witnesses and

questions of coercion are for the jury, we conclude that a reasonable probability exists

that the outcome would have been different but for counsel’s deficient performance.

We therefore reverse Jackson’s conviction. Because we found that sufficient evidence

supports his convictions, the State may retry him. See generally Fisher v. State, 299

Ga. 478 (788 SE2d 757) (2016).

      3. Jackson’s remaining claims of ineffective assistance of counsel are rendered

moot by our holding in Division 2.

      Judgment reversed. Barnes, P. J., and Mercier, J., concur.




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