In the Supreme Court of Georgia



                                                    Decided:       February 1, 2016


                      S15A1461. LOCKHART v. THE STATE.


       HINES, Presiding Justice.

       Joe Lockhart appeals from his convictions and sentences for malice

murder and possession of a firearm during the commission of a felony, all in

connection with the death of Bernard Campbell. For the reasons that follow, we

affirm.1

       Construed to support the verdicts, the evidence showed that Lockhart had


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         The crimes occurred on August 18, 2008. On April 10, 2009, a Fulton County grand jury
indicted Lockhart for malice murder, felony murder while in the commission of the crime of
aggravated assault, felony murder while in the commission of the crime of possession of a firearm
by a convicted felon, aggravated assault, possession of a firearm during the commission of a felony,
and possession of a firearm by a convicted felon. He was tried before a jury
 March 19-21, 2013, and found guilty of malice murder, felony murder while in the commission of
the crime of aggravated assault, aggravated assault, and possession of a firearm during the
commission of a felony; orders of nolle prosequi were entered on the charges of felony murder while
in the commission of the crime of possession of a firearm by a convicted felon and possession of a
firearm by a convicted felon. On March 23, 2013,Lockhart was sentenced to life in prison for malice
murder and a consecutive term of five years in prison for possession of a firearm during the
commission of a felony; the remaining charges either merged with a crime for which a sentence was
entered or were vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-374 (4), (5)
(434 SE2d 479) (1993). Lockhart filed a motion for new trial on April 10, 2013, which he amended
on September 18, 2014, and again on October 7, 2014; on January 13, 2015, the motion, as amended,
was denied. Lockhart filed a notice of appeal on January 20, 2015, the appeal was docketed in this
Court for the September 2015 term, and submitted for decision on the briefs.
supplied Campbell some automobile wheel rims to sell. Campbell, together with

Carl Freeman, sold the rims and then went to Freeman’s home at 6:00 p.m. on

August 18, 2008. Campbell then left and went to a nearby park. Lockhart,

seeking his share of the proceeds from the sale of the rims, went with Horace

Holt to Freeman’s home, and Freeman told them Campbell had gone to the park.

Lockhart and Holt went to the park and found Campbell; Holt left, driving

Lockhart’s vehicle. Later, Campbell drove by Freeman’s home and, from the

vehicle, said that Lockhart “pulled a pistol on me,” and continued driving.

      Reginald Blessett was driving near the park when he came upon

Campbell’s vehicle stopped in the road; Blessett drove around Campbell’s

vehicle, and his vehicle was then struck in the rear by Campbell’s. Campbell’s

vehicle pushed Blessett’s vehicle for a distance, and then went around it.

Lockhart then opened the door to Blessett’s vehicle, got inside and, pointing a

revolver at him, told Blessett to follow Campbell’s vehicle. At an intersection,

Lockhart directed Blessett to get next to Campbell’s vehicle; Lockhart quickly

exited Blessett’s vehicle, shot Campbell multiple times, striking him with at

least five projectiles, and quickly reentered Blessett’s vehicle. Lockhart then

directed Blessett to drive back to the area where he had entered Blessett’s

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vehicle, told Blessett “I know you,” and exited the vehicle. Seven weeks later,

Campbell died of his gunshot wounds.

      1. The evidence authorized the jury to find Lockhart guilty beyond a

reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia,

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

      2. Lockhart contends that his trial counsel failed to provide effective

assistance in regard to an incident that occurred during jury voir dire. In order

to prevail on this claim, he must show both that counsel’s performance was

deficient, and that the deficient performance was prejudicial to his defense.

Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing Strickland

v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984). To meet the

first prong of the required test, he must overcome the “strong presumption” that

counsel’s performance fell within a “wide range of reasonable professional

conduct,” and that counsel’s decisions were “made in the exercise of reasonable

professional judgment.” Id. The reasonableness of counsel’s conduct is

examined from counsel’s perspective at the time of trial and under the particular

circumstances of the case, id. at 784, and decisions regarding trial tactics and

strategy may form the basis for an ineffectiveness claim only if they were so

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patently unreasonable that no competent attorney would have followed such a

course. Redding v. State, 297 Ga. 845, 850 (5) (778 SE2d 774) (2015). To meet

the second prong of the test, Lockhart must show that there is a reasonable

probability that, absent any unprofessional errors on counsel’s part, the result

of his trial would have been different. Smith, supra at 783. “‘We 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).

      During jury voir dire, the court asked the panel of prospective jurors if

anyone knew Lockhart. Prospective Juror 18 indicated that he did, and when

asked how he knew Lockhart, responded, while the entire panel remained

present: “Before I started driving trucks, I worked for the Fulton County

Sheriff’s Department for 14 years. And I worked on the maximum security

floor, sixth and seventh floor, dealing with violent criminals.” The court said:

“Okay. So that’s where you know him from. Okay. Thank you, sir. You may

be seated.” Prospective Juror 18 was later brought before the court without the

remainder of the panel present, and stated that he had left the employ of the

Sheriff’s Department the previous year, recalled no specific issues with

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Lockhart during detention, but recognized his face; after discussion, Prospective

Juror 18 was excused for cause. Later, before the jury was selected, defense

counsel raised to the court the possibility of the court instructing the panel of

prospective jurors that Prospective Juror 18 had come into contact with

Lockhart pursuant to the case at issue during pretrial detention; the court

expressed a willingness to do so, but noted that the panel may not have paid

particular attention to Prospective Juror 18's remark. After discussion regarding

the potential effect of an instruction from the court, defense counsel declined to

have the court give an instruction and stated: “I probably should leave it alone

for the good of my client.”

      Lockhart contends that his trial counsel was ineffective in not seeking the

dismissal of the entire panel of prospective jurors because of Prospective Juror

18's remarks. See Kinder v. State, 284 Ga. 148, 150 (2) (663 SE2d 711) (2008);

Sharpe v. State, 272 Ga. 684, 688 (5) (531 SE2d 84) (2000). During the hearing

on the motion for new trial, trial counsel was asked about his failure to do so,

and testified that he should have done so “having looked back on it.” However,

that does not control the question of whether counsel was pursuing a reasonable

strategy; even counsel’s own hindsight “has no place in an assessment of the

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performance of trial counsel, the United States Supreme Court having instructed

that a fair assessment of attorney performance requires that every effort be made

to eliminate the distorting effects of hindsight.” Mohamud v. State, 297 Ga.

532, 533 (2) (a) (773 SE2d 755) (2015) (Citation and punctuation omitted.) The

strong presumption that counsel’s conduct was within the wide range of

reasonable conduct remains, and Lockhart must show that counsel’s actions

were patently unreasonable. Id.; Redding, supra.

      And, other evidence brought forth during the motion for new trial hearing

shows that counsel pursued a reasonable strategy in choosing to go forward with

the prospective jury panel that remained after the dismissal of Prospective Juror

18. Counsel testified that he made a decision before jury selection not to

address the matter further than he did, had “a pretty good idea of what the [jury]

pool was to draw from,” that as far as asking for a new panel, “I probably would

have thought that it would be better to go forward with this jury [panel] given

their responses to questions,” and that doing so was, in his judgment at the time,

in the best in interest of his client. Decisions regarding which jurors to strike

and which to accept are questions of trial strategy. See Simpson v. State, __ Ga.

___, ___ (4) (___ SE2d ___) (2016) (Case no. S15A1365, decided January 19,

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2016); Upton v. Parks, 284 Ga. 254, 257 (2) (664 SE2d 196) (2008); Baker v.

State, 295 Ga. App. 162, 170 (5) (c) (671 SE2d 206) (2008). Indeed, choosing

to keep Prospective Juror 18 on the panel would not necessarily have been

unreasonable strategy. See Prince v. State, 277 Ga. 230, 235-236 (3) (587 SE2d

637) (2003). Accordingly, choosing to proceed with the known prospective jury

panel rather than seeking a replacement panel was not ineffective assistance of

counsel. Redding, supra.

      Further, Lockhart cannot show prejudice arising from the failure to seek

a new panel. See Williams v. State, 292 Ga. 844, 852 (3) (e) (742 SE2d 445)

(2013). When “a prospective juror’s comments do not link a defendant with

criminal activity, or characterize the defendant as a criminal, the entire jury

panel does not have to be excused.” Edwards v. State, 282 Ga. 259, 262-263 (8)

(a) (646 SE2d 663) (2007). “We have previously held that evidence that an

accused has been confined in jail in connection with the case at issue does not

place his character in evidence.” Bright v. State, 292 Ga. 273, 275 (2) (a) (736

SE2d 380) (2013). As to Prospective Juror 18's response that he knew Lockhart

from working on the “maximum security floor . . . dealing with violent

criminals,” the jury was already aware that Lockhart was charged with murder,

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a manifestly violent crime. There is “no inherent prejudice when the comment

[in the presence of the prospective jury panel] is that the accused was in jail and

there is no evidence that the accused was in jail for any other reason other than

as a result of the charges in the case at issue.” Bennett v. State, 266 Ga. App.

502, 508 (597 SE2d 565) (2004). No information was conveyed in Prospective

Juror 18's response suggesting that Lockhart was in jail for any reason other

than that he was awaiting trial on the charges at issue, and thus, had trial counsel

sought to have the prospective jury panel replaced, there is no reasonable

probability that such a motion would have been granted, and no reasonable

probability that the result of his trial would have been different. Smith, supra.

      Judgments affirmed. All the Justices concur.




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