In the Supreme Court of Georgia



                                                    Decided: November 3, 2014


                       S14A0748. MERRITT v. THE STATE.

       HINES, Presiding Justice.

       Anthony C. Merritt appeals from his convictions and sentences for malice

murder, possession of a firearm by a convicted felon, and possession of a

firearm during the commission of the crime of malice murder, in connection

with the death of Jerron Jackson. For the reasons that follow, we affirm.1

       Construed to support the verdicts, the evidence showed that Merritt and

Jackson shared a home in a mobile home park. On the afternoon of July 31,

2011, Timms, who was a neighbor of Merritt and Jackson, heard gunshots,

       1
         The crimes were committed on July 31, 2011. On October 5, 2011, a Stephens County
grand jury indicted Merritt for malice murder, felony murder while in the commission of aggravated
assault, felony murder while in the commission of possession of a firearm by a convicted felon,
aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during
the commission of the crime of malice murder. Merritt was tried before a jury April 16-19, 2012,
and found guilty on all counts. On April 25, 2012, he was sentenced as a recidivist to life in prison
without the possibility of parole for the crime of malice murder, and two consecutive terms of five
years in prison for possession of a firearm by a convicted felon and possession of a firearm during
the commission of the crime of malice murder; 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). Merritt moved for a new trial on May 11, 2012,
and amended the motion on December 31, 2012. On November 7, 2013, the motion, as amended,
was denied. Merritt filed a notice of appeal on December 6, 2013, and the appeal was docketed in
this Court for the April 2014 term and submitted for decision on the briefs.
although she did not see who fired them; Jackson approached Timms and asked

her to call 911. Soon thereafter, Merritt approached her and said not to call the

police as he was a convicted felon. As the two men walked back to their home,

they argued; Jackson told Merritt to find another place to stay and Merritt said

that if Jackson had a “beef” with him, they could settle it “right now.”       A

handgun fell from Merritt’s pants, and he retrieved it from the ground. Timms

called 911, but the responding sheriff’s deputy was unable to get a response at

Merritt’s home.

      Later that afternoon, Timms heard two gunshots from inside Merritt’s

home. She did not see Jackson again, but saw Merritt leave the home and go

into a nearby wooded area; on multiple occasions, Merritt paced outside the

home, apparently under the influence of drugs or alcohol. At some point,

Merritt telephoned his former fiancee and said “something about somebody got

shot or something like that.” Merritt also telephoned his grandmother and said

“something had happened and somebody had been shot, something about his

roommate.”

      After hearing the gunshots from inside Merritt’s home, Timms stopped a

passing sheriff’s deputy and identified Merritt as the person from whose pants

                                        2
the handgun had fallen, and the deputy left the area. Merritt went to Timms’s

home and asked what Timms had told the deputy; she responded “nothing,” and

Merritt said he “could take [Timms] out, too.”                      Timms called 911 and

responding sheriff’s deputies established a perimeter around Merritt’s home,

rather than immediately attempting to enter it. Before the deputies arrived, a

man came to Timms’s home, asked which mobile home was Merritt’s, and said

that he had received a telephone call to the effect that Merritt had shot his

roommate; the man went to Merritt’s mobile home, but did not stay long.2

       After sheriff’s deputies had been outside Merritt’s home for two hours, the

Sheriff of Stephens County was informed that the Georgia State Patrol SWAT

team would not assist without a warrant being secured. Thereafter, deputies

near the mobile home heard sounds from inside that appeared to be a person

moaning, and the decision was made to enter the mobile home without a

warrant. Inside, deputies found Jackson’s body lying face up on the bedroom

floor and Merritt lying face down on the bed, crying. A deputy handcuffed

       2
          A defense witness testified that: Merritt’s grandmother asked him to go check on Merritt
as she understood that Merritt had shot his roommate; the witness went directly to Merritt’s home
by the directions he had been given; Merritt answered the door; from the door, the witness could see
a dead body in the front room; it was difficult to communicate with Merritt, who appeared to be in
a state of shock; and the witness left the home and telephoned Merritt’s grandmother in an attempt
to get further assistance for Merritt.

                                                 3
Merritt, who spoke toward Jackson’s body, saying “get up off the floor and quit

playing.” Law enforcement investigators collected evidence from inside the

mobile home that included unfired bullets, cartridge cases, and spent projectiles;

a leafy green substance that appeared to be marijuana was found inmultiple

places inside the home. Merritt smelled of alcohol and a later test of his blood

showed the presence of marijuana. Jackson was lifeless and had been fatally

shot once in the back by a handgun found in the woods outside the mobile

home; the fatal projectile matched other projectiles recovered from inside the

home. The moaning noise that deputies had heard was determined to have

emanated from a refrigerator inside the home.

      Merritt was interviewed by an agent of the Georgia Bureau of

Investigation and, at first, said that he had gone to sleep, been awakened when

deputies were standing over his bed, and that Jackson was alive and speaking

to the deputies when Merritt was taken from the home. He later told the agent

that he and Jackson sold marijuana; that “Carolina men” entered the home and

robbed them in a “drug deal [that] went bad,” and killed Jackson.

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

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

                                        4
443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

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

representation in two respects. In order to prevail on these claims, 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.

To meet the second prong of the test, he 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. 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).

                                        5
      (a) Merritt contends that counsel should have pursued a motion to

suppress the evidence taken from the mobile home as it was secured without a

search warrant and no exigent circumstances existed such as to justify the entry

without one. However,

      “‘[w]hen trial counsel’s failure to file a motion to suppress is the
      basis for a claim of ineffective assistance, the defendant must make
      a strong showing that the damaging evidence would have been
      suppressed had counsel made the motion.’” Biggs v. State, 281 Ga.
      627, 631–632 (642 SE2d 74) (2007) (citation omitted).

Williams v. State, 290 Ga. 533, 535 (2) (a) (722 SE2d 847) (2012). And, Merritt

fails to meet this standard.

      Trial counsel testified that he did not pursue a motion to suppress the

evidence because he did not believe such a motion would have been successful,

as the court would likely find that exigent circumstances existed to justify the

warrantless entry into the home. And, the evidence was such that this was

certainly a reasonable strategic decision. Law enforcement officers at the crime

scene testified that, after being at the scene for some time, they heard sounds

inside the home that appeared to be “moaning or gasping,” and that the decision

was then made to enter the home as there may have been a person inside needing

immediate medical attention. Such an exigency justifies a warrantless entry.

                                       6
See Brigham City v. Stuart, 547 U.S. 398, 403 (II) (126 SCt 1943, 164 LE2d

650) (2006); Johnson v. State, 272 Ga. 468, 470 (2) (532 SE2d 377) (2000);

Lord v. State, 297 Ga. App. 88, 91-92 (1) (a) (676 SE2d 404) (2009); Love v.

State, 290 Ga. App. 486, 489 (659 SE2d 835) (2008). Merritt asserts that the

testimony of the Sheriff and his deputies regarding the exigency should not be

credited. However, the testimony at the motion for new trial hearing authorized

the trial court’s conclusion that, although the deputies had been on the scene for

some time, they did not hear the moaning sound until much later, just before

their entry, and did not have prior cause to believe that a living victim might be

inside the home until the sounds arose.3 See Stringer v. State, 285 Ga. 842,

843(2) (684 SE2d 590) (2009) (“On reviewing a trial court’s ruling on a motion

to suppress, evidence is construed most favorably to uphold the findings and

judgment and the trial court’s findings on disputed facts and credibility must be

accepted unless clearly erroneous.” (Citation and punctuation omitted.))

Although Merritt contends that there was sufficient time for the sheriff’s

deputies to secure a search warrant after they arrived at the crime scene, but

       3
         Merritt’s grandmother had previously telephoned 911 in a neighboring county to report a
“murder” at Merritt’s home, and this information was communicated to the Stephens County
Sheriff’s office.

                                               7
before the warrantless entry, the exigency justifying such an entry “may arise at

any time, and the fact that the police might have obtained a warrant earlier does

not negate the possibility of a current situation's necessitating prompt police

action.” Cardwell v. Lewis, 417 U.S. 583, 595–596 (III) (94 SCt 2464, 41 LE2d

325) (1974). See also Hall v. State, 176 Ga. App. 428, 431 (2) (336 SE2d 291)

(1985). Accordingly, even if counsel had moved to suppress the evidence

gained by the warrantless entry into Merritt’s home, there is no reasonable

probability that the motion would have been granted and that the result of

Merritt’s trial would have been different. Smith, supra.

      (b) Merritt also asserts that trial counsel was ineffective in failing to

request jury charges on the lesser included offenses of voluntary and involuntary

manslaughter. See OCGA §§ 16-5-2 and 16-5-3. However, counsel testified

that Merritt was adamant that Jackson was killed by others in a “drug deal gone

wrong” and that he had done nothing wrong; in fact, Merritt would not allow

counsel even to discuss manslaughter with the District Attorney. “[D]efense

counsel is entitled to base the defense on the veracity of the client’s assertions.”

Williams v. State, 292 Ga. 844, 853 (3) (f) (742 SE2d 445) (2013) (Punctuation

omitted.) And, counsel pursued the defense based upon these contentions by

                                         8
Merritt, which were placed before the jury by introduction of his statement to

a law enforcement investigator. The instructions that Merritt now claims should

have been requested were inconsistent with the defense based upon Merritt’s

factual assertions, and “‘it was reasonable for counsel not to request the charges

in question.’ [Cit.]” Id.

      Judgments affirmed. All the Justices concur.




                                        9
