In the Supreme Court of Georgia



                                              Decided: October 6, 2014


                   S14A0663. COMPTON v. JACKSON.


      HUNSTEIN, Justice.

      We granted Appellant Larry Compton’s application for a certificate of

probable cause to examine whether the habeas court erred in rejecting

Compton’s claim of ineffective assistance of trial counsel. Finding no error, we

affirm.

      Compton was convicted of murder and related offenses, and the trial court

sentenced him to life imprisonment plus five consecutive years. This Court

affirmed his convictions and sentences on appeal. Compton v. State, 281 Ga.

45 (635 SE2d 766) (2006). In 2007, Compton, proceeding pro se, filed a

petition for habeas corpus, which he later amended in 2012 through counsel,

arguing that he received ineffective assistance of counsel because (1) trial

counsel did not object to the excusal of a juror who was voting to acquit

Compton; and (2) trial counsel allowed the trial court to consult two different
jurors outside his presence and the presence of his counsel. After an evidentiary

hearing, at which Compton testified and also presented the affidavit of his trial

counsel, the habeas court denied his petition.       We subsequently granted

Compton’s application for a certificate of probable cause and directed the parties

to address the following question:

      Did the habeas court err in rejecting petitioner’s claim that trial
      counsel was constitutionally ineffective for failing to object to the
      court excusing a juror based on a conversation that occurred outside
      the presence of petitioner or counsel where the record reflects that
      the juror was released due to her inability to reach a verdict either
      way?

      The record reflects that on the third day of jury deliberations, Juror White

and the trial judge, Gail Tusan, met in chambers without Compton or any

counsel present. During this initial discussion, Juror White expressed to the

judge that she was not able to continue with deliberations. This discussion was

not recorded.    Approximately 25 minutes later, the judge held another

conference with Juror White in chambers, without Compton or any counsel

present, and this time the discussion was transcribed in order to “create a

record.” The transcript from this subsequent discussion shows that Juror White

expressed to the judge that she could not carry out her oath or duties as a juror


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and she could not “hang in there and finish [her] part of the process” because

she could not “do it anymore.” Upon further questioning by the judge, Juror

White explained that she could not “come to a decision” and she had been

“having a hard time.” Juror White stated, “I can’t sit here today and tell them

guilty on this charge or not guilty or just innocent. I can’t.” Based on this, the

judge told Juror White that she would excuse her and call in an alternate juror.

      Judge Tusan returned to courtroom and informed the jury, as well as

counsel and Compton, that based on her conversation with one of the jurors, she

had excused the juror and seated an alternate. She told the jury that they needed

to begin their deliberations anew and gave them further instructions. The judge

did not read the transcript from the in-chambers discussion with Juror White in

open court. Neither Compton’s counsel nor the State objected to the in-

chambers discussion or to Juror White’s dismissal.1

      In denying Compton’s habeas petition on his claim for ineffective

assistance of counsel, the court found that Compton failed to show the requisite

      1
       On direct appeal, Compton argued that the trial court erred in dismissing
Juror White. We held that Compton had waived this argument on appeal because
“[n]o matter how erroneous a ruling of a trial court might be, a litigant cannot
submit to a ruling or acquiesce in the holding, and then complain of the same on
appeal.” Compton, 281 Ga. at 46 (citation and punctuation omitted).
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prejudice with regard to his counsel’s failure to object to the in-chambers

discussion and that the in-chambers discussion was merely limited to whether

Juror White could follow the trial court’s instructions.          With regard to

Compton’s claim that counsel was ineffective for failing to object to the excusal

of Juror White, the court found that counsel did not act unreasonably by failing

to make a meritless objection because excusing and substituting a juror are

strictly within the sound discretion of the trial court, and Compton did not show

the requisite prejudice.

      “In reviewing the grant or denial of a petition for habeas corpus, this Court

accepts the habeas court's factual findings and credibility determinations unless

they are clearly erroneous, but we independently apply the law to the facts.”

Henderson v. Hames, 287 Ga. 534, 536 (2) (697 SE2d 798) (2010). To establish

ineffective assistance of counsel, a habeas petitioner must show that his trial

counsel’s performance was professionally deficient and that but for such

deficient performance there is a reasonable probability that the result of the trial

would have been different. Strickland v. Washington, 466 U. S. 668, 687 (III)

(104 SCt 2052, 80 LE2d 674) (1984); see also Reid v. State, 286 Ga. 484 (3) (c)

(690 SE2d 177) (2010) (prejudice is not presumed where a structural error is

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raised in the context of an ineffective assistance of counsel claim); Brooks v.

State, 281 Ga. 14 (3) (635 SE2d 723) (2006) (setting out standard for claim of

ineffective assistance of counsel for failure to object to trial court’s decision to

replace a juror). “In reviewing the habeas court’s order, this Court is not

required to address the two elements in any particular order ‘or even to address

both components if the defendant has made an insufficient showing on one.’”

Walker v. Houston, 277 Ga. 470, 470 (1) (588 SE2d 715) (2003).

      Turning first to the prejudice prong, Compton must show that there is a

reasonable probability that the outcome of trial would have been more favorable

if counsel had objected to either his absence during the in-chambers discussion

with Juror White or to the court’s dismissal of Juror White. Compton argues

that he has shown actual prejudice because Juror White indicated that she was

voting not to convict. He contends further that without his attorney’s errors, he

would have been present at the discussion with Juror White, objected to the

judge’s dismissal of her, and requested that she be re-charged on the burden of

proof and reasonable doubt and given further instructions to continue

deliberations.

      The record does not support Compton’s contention that Juror White would

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not have voted to convict; instead, she could not reach a verdict either way. She

explained to the judge, “It’s like I can’t say guilty. I can’t say not guilty. It’s like

I’m just – and it doesn’t make sense to me because it’s like – it seems like it’s

one way or the other way.” She informed the judge that she could not continue

with the deliberation process and could not reach a decision. Moreover,

although without counsel’s alleged errors, Compton may have objected and

requested that Juror White remain on the jury for further deliberations, the trial

judge would still have had the discretion to remove Juror White and replace her

with an alternate based on the judge’s findings that Juror White could no longer

fulfill her duties as a juror. Smith v. State, 284 Ga. 17, 22 (4) (663 SE2d 142)

(2008) (“A trial court is statutorily vested [pursuant to OCGA § 15-12-172] with

the discretion to discharge a juror and seat an alternate juror at any time during

the proceedings, as long as the trial court has a sound legal basis to do so.”). We

find no abuse of discretion here in dismissing Juror White. Finally, even if the

judge had required Juror White to remain on the jury, there is not a reasonable

probability that the result of the trial would have been different; Juror White

may have voted to convict Compton. Having found that Compton has failed to

show actual prejudice, we need not assess whether counsel performed

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deficiently. See Walker, 277 Ga. at 470. Accordingly, the habeas court did not

err in rejecting petitioner’s claim that trial counsel was constitutionally

ineffective.

      Affirmed. All the Justices concur.




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