In the Supreme Court of Georgia



                                            Decided: June 20, 2016


                   S16A0152. WALKER v. THE STATE.


      HINES, Presiding Justice.

      Zerrick Walker appeals from the denial of his motion for new trial

following his convictions for the malice murder of Ronaldo Lorenzo Hill and

the crime of possession of a firearm during the commission of a felony. For the

reasons that follow, we affirm.

      This is the second appearance of this case in this Court. In Walker v.

State, 292 Ga. 262 (737 SE2d 311) (2013), we found the evidence against

Walker to be sufficient to convict him of malice murder and possession of a

firearm during the commission of a felony, but vacated the trial court’s denial

of Walker’s motion for new trial, and remanded the case to the trial court for

further proceedings; upon remand, the trial court vacated its original order

denying Walker’s motion for new trial and entered a new order that denied the
motion, from which Walker now appeals. See id. at 264-265 (2).1

       As noted in our prior decision, evidence presented at trial showed that Hill

was shot by a man who entered the barbershop where Hill worked, spoke with

him, walked back toward the door of the shop, turned and fired at Hill, and left

the barbershop. Id. at 263 (1). The assailant fired a second shot at the barbershop

from outside, and fled the scene in a waiting white Ford F150 pickup truck;

another barber recognized the shooter as a customer whose hair Hill had cut

recently, and at trial, this barber and a customer identified Walker as the shooter;

another customer identified a photo of Walker taken on the day of the shooting

as a photo of the shooter. Id. Additionally, a witness who was in the parking

lot of the barbershop identified Walker as the man who exited the passenger side

door of a pickup truck in the parking lot, entered the barbershop, left the

barbershop shortly after the witness heard a gunshot, turned and fired a revolver

into the barbershop, and re-entered the passenger side of the pickup truck, which

drove away; the witness was able to supply emergency services personnel with



       1
         In its first order on the motion for new trial, the trial court failed to address Walker’s
assertions under OCGA §§ 5-5-20 & 5-5-21 properly in its role as “the thirteenth juror,” but went
on to address Walker’s claim of ineffective assistance of trial counsel; in this appeal, Walker raises
no issue regarding the trial court’s treatment of his assertions under OCGA §§ 5-5-20 & 5-5-21.

                                                  2
the license plate number of the pickup truck, which was stopped by law

enforcement personnel shortly thereafter. Hill died seventeen days later.

      In his sole enumeration of error in this appeal, Walker contends that the

trial court erred in denying his motion for new trial on the ground of ineffective

assistance of trial counsel, and asserts that counsel was ineffective in changing

trial strategy from a claim that someone other than Walker shot Hill, to include

an argument that whoever shot Hill was justified in doing so. In order to prevail

on a claim of ineffective assistance of counsel, Walker 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.

To meet the second prong of the test, he must show that there is a reasonable

                                        3
probability that, absent any unprofessional errors on counsel’s part, the result

of his trial would have been different. Id. 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).

        Pretermitting whether trial counsel’s performance was deficient, Walker

has failed to meet the prejudice prong of the Strickland test, and it is not

necessary for us to examine the performance prong of the test. See Smith v.

State, 298 Ga. 491, 494 (4) (783 SE2d 91) (2016). Even if we assume that

counsel did not, in fact, consult with Walker before requesting that the trial

court instruct the jury on the law of justification,2

        [i]n the context of a failure-to-consult claim such as that alleged
        here, the defendant must establish that his counsel’s failure to
        consult was prejudicial to his defense, i.e., that there is a reasonable
        probability that, but for counsel’s failure to consult, the result of
        [his trial] would have been different.

        2
          During the hearing on the motion for new trial, trial counsel explained that, as multiple
witnesses testified that Walker was the shooter, and there was evidence that another handgun was
found near Hill, counsel decided to ask for the justification instruction so that he could argue to the
jury that, although the witnesses may have misidentified Walker, whoever that person was, he was
justified in shooting back into the barbershop in self-defense. Counsel described the situation as one
“I had to deal with . . . whether or not I got [Walker’s] approval [for the justification instruction, and]
if he says I didn’t discuss it with him, then I have no reason to disagree with that and I should have
[discussed it with him].”

                                                    4
Hendrix v. State, 298 Ga. 60, 64 (2) (a) (779 SE2d 322) (2015) (Citation and

punctuation omitted.) Thus, Walker must show that there is a reasonable

probability that the result of his trial would have been different had counsel

consulted with him and then not requested a jury instruction on justification, but

pursued only the defense that Walker was not the person who shot and killed

Hill. Id. However, the evidence against Walker included testimony of multiple

witnesses who were present when Hill was killed and testified that Walker was

the shooter, including some who were previously acquainted with Walker, and

Walker fails to show that there is a reasonable probability that the outcome of

his trial would have been different had counsel pursued only the defense that

Walker was not the shooter. Sanders v. State, 290 Ga. 637, 641-642 (5) (723

SE2d 436) (2012).3

       Judgments affirmed. All the Justices concur.




       3
         Contrary to Walker’s assertion, the trial court did not inform the jury that an affirmative
defense is one which “admits the doing of the act.” Compare Williams v. State, 297 Ga. 460, 463-
464 (2) (fn. 2) (773 SE2d 460) (2015).

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