In the Supreme Court of Georgia


                                                  Decided: March 2, 2015


                      S14A1329. THE STATE v. MOBLEY.


       BLACKWELL, Justice.

       Ricci Mobley was tried by a Fulton County jury and convicted of murder

and several other crimes, all in connection with the killing of Bryan Tinch. On

a motion for new trial, however, the trial court set aside those convictions,

reasoning that Mobley was denied the effective assistance of counsel at trial

when his lawyers asked successfully for a jury charge on mutual combat, a

charge that impaired his defense of justification. The State appeals, and we

conclude that Mobley is not entitled to a new trial upon this ground.

Accordingly, we reverse the order awarding a new trial to Mobley, and we

reinstate the judgment of conviction.1

       1
         Tinch was killed on July 7, 2009. Mobley and a co-defendant were indicted on
September 29, 2009, and each was charged with malice murder, felony murder, two counts
of aggravated assault, unlawful possession of a firearm during the commission of a felony,
and unlawful possession of a pistol by a person under the age of eighteen. Mobley and his
co-defendant were tried together, beginning on May 9, 2011. The jury returned its verdict
four days later, finding Mobley not guilty of malice murder and guilty on all of the other
counts. His co-defendant was found guilty only of unlawful possession of a pistol by a person
under the age of eighteen. Mobley was sentenced to imprisonment for life for felony murder,
       To prevail on his claim that he was denied the effective assistance of

counsel, Mobley had to prove that the performance of his lawyers was deficient

and that he was prejudiced by this deficient performance. Strickland v.

Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To

prove that the performance of his lawyers was deficient, Mobley had to show

that they performed their duties at trial in an objectively unreasonable way,

considering all the circumstances, and in the light of prevailing professional

norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U. S.

365, 381 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986). This is no easy showing.

As the United States Supreme Court has explained:

       Judicial scrutiny of counsel’s performance must be highly
       deferential. It is all too tempting for a defendant to second-guess
       counsel’s assistance after conviction or adverse sentence, and it is
       all too easy for a court, examining counsel’s defense after it has
       proved unsuccessful, to conclude that a particular act or omission


a concurrent term of imprisonment for twenty years for an aggravated assault upon Tinch’s
brother, a consecutive term of imprisonment for five years for unlawful possession of a
firearm during the commission of a felony, and a concurrent term of imprisonment for twelve
months for unlawful possession of a pistol by a person under the age of eighteen. The
remaining count of aggravated assault merged with the felony murder. Mobley timely filed
a motion for new trial on May 16, 2011, and he amended it on November 29, 2012. The trial
court granted the motion on May 30, 2013. The State timely filed a notice of appeal on June
27, 2013, and the case was docketed in this Court for the September 2014 term and submitted
for decision on the briefs.

                                            2
      of counsel was unreasonable. A fair assessment of attorney
      performance requires that every effort be made to eliminate the
      distorting effects of hindsight, to reconstruct the circumstances of
      counsel’s challenged conduct, and to evaluate the conduct from
      counsel’s perspective at the time. . . . There are countless ways to
      provide effective assistance in any given case. Even the best
      criminal defense attorneys would not defend a particular client in
      the same way.

Strickland, 466 U. S. at 689-690 (III) (A) (citations omitted). See also

Humphrey v. Nance, 293 Ga. 189, 191 (II) (A) (744 SE2d 706) (2013). To these

ends, the law recognizes a “strong presumption” that counsel performed

reasonably, Strickland, 466 U. S. at 689 (III) (A), and Mobley bore the burden

of overcoming this presumption. See id. To carry his burden, Mobley had to

show that no reasonable lawyer would have done what his lawyers did or would

have failed to do what his lawyers did not, see Nance, 293 Ga. at 192 (II) (A)

(1), or put another way, that his lawyers “made errors so serious that [they were]

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Harrington v. Richter, 562 U. S. 86 (IV) (131 SCt 770, 178 LE2d

624) (2011) (citation and punctuation omitted). And to carry that burden,

Mobley had to show these things by competent evidence, for a silent or

ambiguous record is not sufficient to overcome the strong presumption of


                                        3
reasonable performance. Shaw v. State, 292 Ga. 871, 874 (3), n. 5 (742 SE2d

707) (2013).

      Even when a defendant has proved that the performance of his lawyers

was deficient in a constitutional sense, he also must prove prejudice by showing

“a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland, 466 U. S. at 694 (III)

(B). See also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SCt 1495, 146

LE2d 389) (2000). But a court is not required to “address both components of

the inquiry if the defendant makes an insufficient showing on one.” Strickland,

466 U. S. at 697 (IV). In all, the burden of proving a denial of the effective

assistance of counsel is a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C).

See also Richter, 562 U. S. at __ (IV). Whether the defendant has carried his

heavy burden is a question committed in the first instance to the trial court, and

even on appeal, we defer to its findings of fact unless clearly erroneous. See

Perkins v. Hall, 288 Ga. 810, 812 (II) (708 SE2d 335) (2011). We owe no

deference, however, to its conclusions of law, and we apply the law ourselves

to the material facts of a case. See id. In this case, we conclude that Mobley has

failed to carry his burden.

                                        4
      The trial court summarized the evidence presented at trial as follows:

      [Mobley] shot and killed Bryan Tinch in broad daylight on 7 July
      2009 — this fact was uncontested at trial. Earlier that day, [Mobley]
      and Tinch had become embroiled in a heated argument. Just prior
      to the shooting, Tinch and his brother Branden walked by
      [Mobley’s] grandmother’s yard where [Mobley] was sitting with his
      friends Chaze Scott and Laburk Styles. As Tinch and his brother
      passed by, Tinch and [Mobley] renewed their argument. Tinch, who
      was far larger than [Mobley], stepped towards the yard, reached
      towards his pants and, in the words of his brother, “did the one-on-
      one, that means he’ll fight you one-on-one,” “pull[ing] up his pants
      like he was fixing to run up in the yard.” [Mobley] backed away,
      and Scott handed him a gun. [Mobley] fired an initial shot either
      into the ground or into the air — the exact direction was unclear,
      other than that it was a warning shot not fired at Tinch — and then
      fired two or three more shots as Tinch and his brother ran back
      towards their house. Tinch was hit once in the chest and died from
      his wound.

(Emphasis in original.) On the motion for new trial, the trial court decided that

Mobley had been denied the effective assistance of counsel because his lawyers

had persuaded the trial court to give a jury charge on mutual combat.2 There was

no evidentiary basis for such a charge, the trial court explained, because there

was no evidence at trial that Tinch was armed with a deadly weapon. And in any

event, the trial court reasoned, the charge on mutual combat impaired the defense



      2
          Different judges presided at trial and the hearing on the motion for new trial.

                                              5
of justification — which, the trial court found, was the sole defense urged at trial

by Mobley — by instructing that a person engaged in mutual combat may claim

justification only if he first withdraws from the mutual combat and

communicates that withdrawal to the other combatant. Because no evidence

supported the charge on mutual combat, and because the charge impaired the sole

defense, it was unreasonable for the lawyers to have asked for the charge, the

trial court concluded, rendering their performance deficient in this respect. As to

prejudice, the trial court determined that Mobley had shown a reasonable

probability that the charge on mutual combat affected the outcome of the trial,

inasmuch as the case on justification was close, and the mutual combat charge

impaired the justification defense.

      We turn now to the question of deficient performance. To begin, we note

that the trial court was wrong to find that justification was the sole defense urged

by Mobley at trial. A review of the trial transcripts — including the closing

arguments of counsel — reveals quite clearly that the defense case was not

entirely and exclusively about justification. Although justification certainly was

the principal line of defense, Mobley’s lawyers also had a fallback position,

arguing that, if the killing was not justified, it amounted to only voluntary

                                         6
manslaughter, not murder. Indeed, in the closing arguments, one of those lawyers

pointed to evidence that Mobley had been provoked to kill Tinch, noting that

sufficient provocation could render a killing only voluntary manslaughter under

Georgia law. In particular, the lawyer pointed to evidence that Tinch had

threatened Mobley on the day of the killing and essentially had challenged

Mobley to a fight. And the trial court charged the jury on voluntary manslaughter

as a lesser included offense of murder. The finding that justification was the sole

defense at trial is clearly erroneous.3

      The trial court also erred with respect to the significance that it attached to

the absence of proof at trial that Tinch was armed with a deadly weapon.

According to the trial court, a charge on mutual combat is warranted only upon

such proof. Perhaps that is right, but it is not clearly so. As this Court

acknowledged only a few years ago, “[t]here is a conflict in the case law with

regard to whether there must be evidence that mutual combatants have deadly




       3
         “A claim that a killing is only voluntary manslaughter is not, strictly speaking, a
‘defense’ to a murder charge.” Lynn v. State, 296 Ga. 109, 113, n. 4 (2) (765 SE2d 322)
(2014) (citation omitted). Nevertheless, pursuing a finding of guilt of voluntary manslaughter
as an alternative to murder may properly form a part of the defense theory of a case.

                                             7
weapons in order for the jury to be charged on the law of mutual combat.”4 White

v. State, 287 Ga. 713, 723 (4) (c) (699 SE2d 291) (2010) (citations omitted). And

in any event, the jury charge requested in this case did not say anything about

any requirement that Tinch have been armed with a deadly weapon. To the

contrary, Mobley’s lawyers asked for, and the trial court gave, an instruction that:

      If you find from the evidence that there was between the defendant
      and the deceased a mutual combat, that is a mutual intent or a mutual
      agreement to fight, then you will consider the rules of law
      concerning mutual combat . . ..

      Mutual combat occurs where there is combat between two persons
      as a result of a sudden quarrel or such circumstances as indicate a
      purpose, willingness, and intent on the part of both to engage
      mutually in a fight. It is not essential to execute mutual combat, that
      blows be struck or shots be fired. There must be a mutual intent to
      fight or engage in combat. The existence of intent to engage in
      mutual combat may be establish[ed] by proof of acts and conduct, as
      well as by proof of an expressed agreement.

So, even if the law of mutual combat properly applies only when both

combatants are similarly armed, the jury was told nothing of any such

requirement, and as mutual combat was actually charged in this case, the jury

could have found mutual combat consistent with the instructions of the court.


       4
         We do not attempt today to resolve this conflict. For the reasons that follow, the
resolution of this case does not require it.

                                            8
        As the trial court noted, such a finding would have come at a cost for

Mobley. Specifically, as a part of its charge on mutual combat, the trial court

instructed that, if Mobley and Tinch were engaged in mutual combat at the time

of the killing:

        [T]hen in order for the killing to be justified . . . it must further
        appear that the defendant withdrew from the encounter, effectively
        communicated to the deceased the intent to do so, and the deceased
        notwithstanding, continued or threatened to continue the use of
        unlawful force.

See OCGA § 16-3-21 (b) (3). Because the law of justification does not otherwise

require such a withdrawal and communication as a predicate to the justified use

of force in defense of self, see OCGA § 16-3-21 (a), the charge on mutual

combat — to the extent that the jury found that Mobley and Tinch were, in fact,

engaged in mutual combat — would have impaired somewhat his justification

defense.

        Nevertheless, the charge on mutual combat clearly presented a potential

benefit for Mobley too. Also as a part of that charge, the trial court instructed the

jury:

        If you find that there was a mutual intention on the part of both the
        deceased and the defendant to enter into a fight or mutual combat
        and that under these circumstances the defendant killed the deceased,

                                         9
      then ordinarily such killing would be voluntary manslaughter,
      regardless of which party struck the first blow or fired the first shot.

Although the charge on mutual combat may have carried a cost to the

justification defense, it presented the benefit of improving the chances that the

jury might find Mobley guilty of only voluntary manslaughter, not murder.

      Whether the potential upside of a charge is worth its costs is a

quintessential question of trial strategy. As we have explained before,

“[d]ecisions as to which jury charges will be requested and when they will be

requested fall within the realm of trial tactics and strategy. They provide no

grounds for [a new trial] unless such tactical decisions are so patently

unreasonable that no competent attorney would have chosen them.” Davis v.

State, 296 Ga. 126, 131 (3) (765 SE2d 336) (2014) (citation and punctuation

omitted). This principle is a settled one. See Madrigal v. State, 287 Ga. 121, 123

(3) (694 SE2d 652) (2010), overruled on other grounds, State v. Kelly, 290 Ga.

29, 32 (1) (718 SE2d 232) (2011); Hill v. State, 284 Ga. 521, 524 (2) (b) (668

SE2d 673) (2008); King v. State, 282 Ga. 505, 507 (2) (a) (651 SE2d 711)

(2007); Jackson v. State, 278 Ga. 235, 239 (5) (a) (599 SE2d 129) (2004).

Moreover, a strategy that presents alternative defense theories — all of which are


                                        10
better for the defendant than the prosecution theory of the case — generally falls

within the broad range of reasonable professional conduct. See Ramsey v. State,

272 Ga. 28, 30 (3) (526 SE2d 842) (2000); Hodges v. State, 260 Ga. App. 483,

485 (2) (580 SE2d 614) (2003), disapproved on other grounds, Schofield v.

Holsey, 281 Ga. 809, 812 (II), n. 1 (642 SE2d 56) (2007). More specifically, it

ordinarily is not unreasonable for a defense lawyer to seek a charge on voluntary

manslaughter as an alternative defense theory in a murder case, in the event that

the jury does not accept the primary defense theory. See Thornton v. State, 292

Ga. 87, 89 (4) (734 SE2d 393) (2012). And it usually is not unreasonable in a

murder case to request a charge on mutual combat in aid of an instruction on

voluntary manslaughter as a lesser included offense. See Sanders v. State, 283

Ga. 372, 375 (2) (c) (659 SE2d 376) (2008). In this case in which the lawyers

pursued not only a justification defense, but also voluntary manslaughter as an

alternative to murder, it cannot be said that no reasonable lawyer would have

asked for the charge on mutual combat, even though it might have impaired to

some extent the principal defense of justification.

      For these reasons, the trial court erred when it concluded that Mobley’s

lawyers performed their duties at trial in an objectively unreasonable way.

                                       11
Mobley failed to carry his burden to show deficient performance, and we need

not consider the question of prejudice. Because he failed to carry his burden, his

claim that he was denied the effective assistance of counsel must fail, and he is

not entitled to a new trial upon that ground. The judgment of the trial court to the

contrary is reversed.

      Judgment reversed and case remanded. All the Justices concur.




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