In the Supreme Court of Georgia



                                          Decided: March 7, 2016


                     S15A1692. SEABOLT v. NORRIS.


      MELTON, Justice.

       Following the grant of Melissa Norris’ petition for a writ of habeas

corpus, Kathy Seabolt, in her capacity as warden, appeals, contending that the

habeas court erred in finding appellate counsel was ineffective for (1) failing to

allege error from the trial court’s refusal to charge on accident; (2) failing to

argue on appeal that the trial court erred by not charging involuntary

manslaughter as a lesser included offense of malice murder; (3) failing to argue

ineffective assistance of trial counsel on appeal based on trial counsel’s lack of

objection to questions and closing argument that allegedly commented on

Norris’ right to remain silent; and (4) failing to argue on appeal that the trial

court erred by improperly limiting trial counsel’s closing argument to one hour.

As explained more fully below, because the habeas court properly granted relief

to Norris on the second ground mentioned above, but erred with respect to
various other aspects of its ruling, we affirm the habeas court’s ruling in part

and reverse it in part.1

      As found by this Court in Norris’ prior direct appeal, the underlying facts

of this case are as follows:

      [On December 20, 1995,] Barry Norris was found shot to death in
      his home. [Melissa Norris], who was 15 years old, confessed to her
      brother and to police that, after an argument with her father, she
      took a pistol and shot him in the back of the head at close range.
      Expert medical testimony showed that the victim died as the result
      of a contact range gunshot to the back of his head.

Norris v. State, 282 Ga. 430, 430-431 (1) (651 SE2d 40) (2007). Following an

August 5-7, 1997 jury trial, Norris was found guilty of murder, aggravated

assault, and possession of a firearm during the commission of a felony, but

acquitted of felony murder and voluntary manslaughter and involuntary

manslaughter as lesser included offenses of felony murder. Although trial



      1
        We address the matters upon which the habeas court erred because they
involve issues that are likely to recur in the event of a retrial. See, e.g., Davis v.
State, 272 Ga. 327 (6) (528 SE2d 800) (2000). We also note, however, that a
new trial in this case would now be governed by the provisions of “Georgia’s
new Evidence Code, which applies to cases tried after January 1, 2013” (
Solomon v. State, 293 Ga. 605, 607 (2) n.2 (748 SE2d 865 (2013)), and we
make no rulings here relating to the manner in which the new Evidence Code
may impact the issues involved in this case.
                                          2
counsel had requested a charge on accident as an affirmative defense and

involuntary manslaughter as a lesser included offense of malice murder, the trial

court refused to give these charges. New appellate counsel filed a motion for

out-of-time appeal on March 1, 2006, which motion the trial court granted on

January 30, 2007, and this Court affirmed Norris’ conviction on appeal. See

Norris, supra.

      On September 23, 2011, Norris filed a petition for a writ of habeas corpus

but dismissed it without prejudice on November 28, 2011, due to the

unavailability of her prior attorneys. She then re-filed her habeas petition on

May 29, 2012 pursuant to the six-month renewal provision of OCGA § 9-2-60

(see Phagan v. State, 287 Ga. 856 (700 SE2d 589) (2010)), and she amended it

on February 11, 2013.

      Due to the continuing health issues of Norris’ trial and appellate counsel,

the parties conducted depositions of the attorneys in lieu of their appearance in

court. Following evidentiary hearings in which the testimony of trial and

appellate counsel was admitted via deposition, the habeas court granted relief

to Norris, finding that appellate counsel was ineffective. The warden appeals

from the habeas court’s ruling.

                                        3
      In order to prevail on her claims, Norris

      must show that h[er] 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 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).

      1. The State correctly argues that the habeas court erred in granting habeas

relief to Norris on her claim that appellate counsel was ineffective for not

arguing on appeal that the trial court erred by failing to give a requested jury

instruction on the affirmative defense of accident at trial. As explained more


                                        4
fully in Division 2, infra, the facts of this case showing that Norris may have

been “playing with” the gun near the back of her father’s head when she shot

him supports the giving of a charge on involuntary manslaughter based on

misdemeanor reckless conduct, but not accident. See, e.g., Browner v. State, 296

Ga. 138 (4) (765 SE2d 348) (2014).

      2. The habeas court properly granted relief to Norris on her claim that

appellate counsel was ineffective for failing to argue that the trial court erred by

not giving a requested charge on involuntary manslaughter as a lesser included

offense of malice 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). Despite

counsel’s proper request, the trial court refused to give a charge on involuntary

manslaughter as a lesser included offense of malice murder, and instead charged

the jury that involuntary manslaughter was only a lesser included offense of

felony murder. However, as explained more fully below, the very same evidence

that supported a charge of involuntary manslaughter as a lesser included offense

of felony murder supports the conclusion that Norris could have been guilty of

                                         5
involuntary manslaughter as a lesser included offense of malice murder.

      “A person commits the offense of involuntary manslaughter in the

commission of an unlawful act when he causes the death of another human

being without any intention to do so by the commission of an unlawful act other

than a felony.” OCGA § 16-5-3 (a). In this regard, a person may be found guilty

of misdemeanor reckless conduct when he or she “causes bodily harm to or

endangers the bodily safety of another person by consciously disregarding a

substantial and unjustifiable risk that his [or her] act or omission will cause harm

or endanger the safety of the other person and the disregard constitutes a gross

deviation from the standard of care which a reasonable person would exercise

in the situation.” OCGA § 16-5-60. Here, Norris was not necessarily engaged

in the felony of aggravated assault if she was playing with the gun or even

pointing it at the back of her father’s head, ostensibly without his knowledge.

See OCGA § 16-11-102 (“A person is guilty of a misdemeanor when he

intentionally and without legal justification points or aims a gun or pistol at

another, whether the gun or pistol is loaded or unloaded”). Indeed, based on

Norris’ statement to police that she did not even know that the gun was loaded

when she pointed it at the back of her father’s head, the jury could have

                                         6
reasonably concluded that Norris acted in a manner that amounted to reckless

conduct, but did not act with the requisite malice to support a finding of guilt for

murder or commit an underlying felony to support conviction for felony murder,

at the time that the fatal shot was fired. See OCGA § 16-5-1 (a) (“A person

commits the offense of [malice] murder when he unlawfully and with malice

aforethought, either express or implied, causes the death of another human

being”). The trial court therefore should have given the requested charge on

involuntary manslaughter as a lesser included offense of malice murder, and not

just as a lesser included offense of felony murder, and erred by failing to do so.

      The trial court’s failure to charge on involuntary manslaughter as a lesser

included offense of malice murder was prejudicial, as the evidence presented at

trial was not overwehelming. See, e.g., Smith v. State, 244 Ga. App. 667 (1)

(536 SE2d 561) (2000) (trial court committed reversible error by failing to

charge on lesser included offense where evidence supported charge and

evidence of guilt was not overwhelming). Indeed, while the evidence was

undisputed that the victim was shot in the back of the head at point blank range,

the conflicting evidence about the manner in which the shooting transpired –

including Norris’ statement to police that she did not know that the gun was

                                         7
loaded when she was playing with it and her trial testimony in which she

claimed that she had not shot her father at all and was simply trying to cover up

her brother’s actions – would have allowed a properly instructed jury to consider

reasonable alternatives for the shooting that did not involve an outright intent

to commit malice murder. Compare O'Connell v. State, 297 Ga. 410 (3) (774

SE2d 645) (2015). Because appellate counsel likely would have prevailed on

this issue that he should have raised but did not raise on appeal, the habeas court

properly granted relief to Norris on her claim of ineffective assistance of

appellate counsel on this ground.

      3. The State correctly argues, however, that the habeas court erred in

concluding that appellate counsel would have succeeded on a claim that trial

counsel was ineffective for failing to object to questions and closing argument

that allegedly commented on Norris’ right to remain silent.2 Contrary to the

habeas court’s conclusions, the record reveals that the State only cross-examined

Norris about and commented on inconsistencies between her pre-trial statement

to police, in which she claimed that the shooting had occurred by accident, and


      2
       We address this enumeration because the nature of the prosecutor’s
cross-examination touches upon an issue that is likely to recur at any retrial.
                                         8
her changed testimony at trial, in which she claimed that she had not shot her

father at all. “It was not improper for the prosecutor to cross-examine [Norris]

regarding [her] failure to mention the [fact that she allegedly had not shot her

father at all] to officers or others when [she] made [her] statement or at any other

time before trial.” Stringer v. State, 285 Ga. 842, 845-846 (4) (684 SE2d 590)

(2009). See also State v. Sims, 296 Ga. 465, 469 (2) (a) (769 SE2d 62) (2015)

(State does not violate Georgia’s “bright line rule” of Mallory v. State, 261 Ga.

625 (409 SE2d 839) (1991), that forbids commenting on a defendant’s right to

remain silent where the comments are “limited to noting inconsistencies in [the

defendant’s] pre-trial statements to authorities”).3 Because an objection by trial

counsel to the prosecutor’s comments would have been without merit, a claim

on appeal of ineffective assistance of trial counsel based on his failure to object


      3
        We make no ruling here on the continued viability of the “bright line”
rule articulated in Mallory v. State, 261 Ga. 625 (409 SE2d 839) (1991) for
purposes of any retrial. As we also noted in State v. Sims, supra:

      Mallory was decided not on constitutional grounds but rather based on
      former OCGA § 24-3-36. See Mallory, supra, 261 Ga. at 630. When this
      case is retried, the new Evidence Code will apply. We express no opinion
      about the continuing validity of Mallory under the new Evidence Code.

(Citation omitted.) Id. at 471 (3).
                                         9
would have been unsuccessful. Hayes v. State, 262 Ga. 881, 884 (3) (c) (426

SE2d 886) (1993) (“Failure to make a meritless objection cannot be evidence of

ineffective assistance”). Accordingly, the habeas court erred in concluding that

appellate counsel rendered ineffective assistance on this ground.

      4. The State also correctly argues that the habeas court erroneously

concluded that appellate counsel was ineffective for failing to argue on appeal

that the trial court erred by improperly limiting trial counsel’s closing argument

to one hour.4 While it is true that “[i]n cases involving capital felonies, counsel

shall be limited to two hours [for closing arguments] for each side” ([emphasis

supplied] OCGA § 17-8-73), the record reveals that trial counsel acquiesced at

trial to the court’s ruling that closing arguments would be limited to one hour

per side. Indeed, further underscoring the fact that trial counsel consciously

acquiesced to this ruling, counsel even conceded in his post-trial deposition that

he “went along with the Court[’s limiting of closing arguments to one hour for

each side] because [h]e. . . believed [h]e [was] entitled to one hour, rather than

two.” Because “defense counsel acquiesced in the court’s ruling and waived


      4
       We address this issue to clarify the proper duration of closing arguments
in any retrial.
                                        10
th[e] issue on appeal” relating to the duration of the closing arguments (Agee v.

State, 279 Ga. 774, 775 (2) (621 SE2d 434) (2005)), it cannot be said that

appellate counsel was ineffective for having failed to raise this alleged error by

the trial court. Humphrey v. Lewis, 291 Ga. 202 (V) (A) (iv) (728 SE2d 603)

(2012). The habeas court therefore erred in concluding otherwise.

      Judgment affirmed in part and reversed in part. All the Justices concur.




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