In the Supreme Court of Georgia
Decided: May 17, 2021
S21A0321. POPE v. THE STATE.
WARREN, Justice.
Chauncey Arthur Pope was convicted of malice murder,
possession of a firearm during the commission of a felony, and
possession of a firearm by a convicted felon in connection with the
shooting death of Derrick Lamar Brooks. 1 On appeal, Pope’s sole
1 Brooks was shot on December 14, 2014, and died on February 26, 2015.
A Fulton County grand jury first returned an indictment in this case in 2015,
but on March 11, 2016, the grand jury re-indicted Pope for malice murder,
felony murder predicated on aggravated assault, felony murder predicated on
possession of a firearm by a convicted felon, aggravated assault, possession of
a firearm during the commission of a felony, and possession of a firearm by a
convicted felon. At a jury trial in May 2018, Pope was found guilty on all
counts. The trial court sentenced Pope to serve life in prison for malice murder,
a consecutive term of five years for possession of a firearm during the
commission of a felony, and a concurrent term of five years for possession of a
firearm by a convicted felon. The felony murder counts were vacated by
operation of law, and the trial court merged the aggravated assault count for
sentencing purposes. On May 23, 2018, Pope timely filed a motion for new
trial, which new counsel amended on October 17, 2019. The trial court denied
the amended motion on September 14, 2020. That same day, Pope filed a notice
of appeal. The case was docketed in this Court to the term beginning in
contention is that his trial counsel provided ineffective assistance by
failing to request a pre-trial immunity hearing. We conclude that
Pope’s trial counsel was not constitutionally deficient and affirm
Pope’s convictions.
The evidence presented at Pope’s trial showed the following. 2
On the night of December 14, 2014, a crowd of “over ten” people,
some of whom were drinking and gambling, were at an “after-hours
spot” at a “recording studio” in Atlanta. Angelita Hixon testified
that she was at the studio that night and recalled seeing Brooks and
Pope arguing by the pool table. It appeared that the two were
arguing over a dice game, though the altercation did not get
physical. Following the argument, someone suggested that Hixon
give Brooks a ride home, something Hixon often did for her friends
at the studio. Hixon went outside and got into her car, which was
December 2020 and submitted for a decision on the briefs.
2Pope does not raise the sufficiency of the evidence on appeal. And under
Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020), we no longer as a
matter of course consider sufficiency of the evidence sua sponte in non-death
penalty cases.
2
facing the front door of the studio. Brooks and Pope came out of the
studio shortly after she did, still arguing. Hixon was reluctant to
testify at trial about the shooting, but in a pre-trial statement to a
detective, said that Pope shot Brooks in the knee and then stood over
Brooks and shot him in the head. Moreover, an investigator who
interviewed Hixon before trial testified that Hixon told him that, a
few days after the shooting, Pope offered her money not to testify at
trial against him. At trial, Hixon testified that Brooks was not
armed on the night he was murdered.
Another witness at the studio that evening, Tiffany Lewis, saw
Pope and Brooks talking near a pool table. Pope was upset with how
close Brooks was standing to him, telling him to “back up off me.”
Later that night, Lewis was in Hixon’s car and observed Pope,
Brooks, and another man arguing near the front door. Lewis
testified that Pope walked around the side of the building, and that
a few minutes later, Brooks came outside and began shouting insults
and racial epithets in Pope’s direction. Pope returned to the front of
the building, which prompted Lewis to exit Hixon’s vehicle and head
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inside to find help with the situation. As Lewis walked towards the
door, she noticed Pope reach towards his side. Lewis heard two
gunshots shortly after going inside the studio. Pope came back
inside the studio and said, “Oh, hell no, what the f*** he done made
me do”; “I told him not to f*** with me, I told him, I told him.” Lewis
testified that she saw Pope with a gun that night, but that she never
saw Brooks with one. She also did not see Brooks “pull anything
from his side” or have “anything in his hands” and added that
Brooks did not run at Pope or act “aggressive” toward him.
Pope testified at trial about his interactions with Brooks,
claiming that they got into a disagreement while Pope was shooting
dice. According to Pope, Brooks made some comments about Pope
losing his dice game. Pope told Brooks to “watch out.” Brooks then
got “belligerent,” and Pope told Brooks to “leave [him] alone.”
Brooks, however, remained in Pope’s “personal space” and acted like
he wanted “to fight.” As Pope tried to get back to his dice game,
Brooks “trie[d] to sucker-punch” Pope. Pope, who had a gun, pulled
it out and pointed it at the ground. Brooks told Pope to go ahead
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and shoot, and Pope told Brooks to “leave me the hell alone.” At
this point, the person who ran the studio approached Pope and
Brooks and asked them what was happening. Pope went outside,
where he tried to get into a friend’s pickup truck. The truck,
however, was locked. Pope then walked back to the front door of the
studio. Brooks was coming out the door, yelling at Pope, and opened
a back door of Hixon’s car and acted like he was going to get in. Pope
further claimed that Brooks threatened to “kill [him],” and that just
as Pope told Brooks that Brooks should leave, Brooks charged at
Pope. According to Pope, Brooks was holding one of his hands
behind him, “like he’s concealing something.” Brooks was moving
“pretty fast” and Pope was “petrified.” As Brooks got to within
“arm’s length” of Pope, Pope shot Brooks twice. Pope then left the
studio with a friend.
Brooks suffered gunshot wounds to his leg and head and was
taken to a local hospital, where he later died. Law enforcement
officers did not find a weapon on Brooks.
To prevail on a claim of ineffective assistance of counsel, a
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defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a
defendant must demonstrate that his attorney “performed at trial in
an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms.” Romer v. State,
293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466
U.S. at 687-688. This requires a defendant to overcome the “strong
presumption” that trial counsel’s performance was adequate.
Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation
and punctuation omitted). To carry the burden of overcoming this
presumption, a defendant “must show that no reasonable lawyer
would have done what his lawyer did, or would have failed to do
what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d
221) (2016). “In particular, decisions regarding trial tactics and
strategy may form the basis for an ineffectiveness claim only if they
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were so patently unreasonable that no competent attorney would
have followed such a course.” Id. (citation and punctuation omitted).
To satisfy the prejudice prong, a defendant must establish a
reasonable probability that, in the absence of counsel’s deficient
performance, the result of the trial would have been different. See
Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her
burden of proving either prong of the Strickland test, the reviewing
court does not have to examine the other prong.” Lawrence v. State,
286 Ga. 533, 533-534 (690 SE2d 801) (2010).
In his amended motion for new trial, Pope contended that trial
counsel was constitutionally ineffective for failing to file an
immunity motion before trial. See OCGA § 16-3-24.2 (“A person who
uses threats or force in accordance with [certain statutes governing
justification as a defense, including self-defense,] shall be immune
from criminal prosecution therefor unless in the use of deadly force,
such person utilizes a weapon the carrying or possession of which is
unlawful by such person under Part 2 of Article 4 of Chapter 11 of
this title.”). At the hearing on the motion for new trial, Pope’s trial
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counsel testified that her primary defense theory was self-defense
and that, because Pope was a convicted felon, she was “under the
misimpression for a while” that she could not file an immunity
motion, but that she “was disabused of that notion at some point”
before trial.3 She then “determined that it wasn’t worth going in
front of the [prosecutor]” with the defense theory before trial. Trial
counsel also added that she did not think that the trial “judge would
find it sufficiently compelling to grant . . . an immunity motion, and
we just saved it for trial.”
Pope contends that it was objectively unreasonable for trial
counsel not to move for immunity under OCGA § 16-3-24.2 in a self-
defense case where, as here, the defendant intends to testify at trial.
In his brief on appeal, Pope argues that because he “had to testify at
3 “Prior to 2014, a felon in possession of a firearm generally could not
assert a claim for immunity from prosecution under OCGA § 16-3-24.2 for
crimes involving the use of deadly force.” State v. Remy, 308 Ga. 296, 296 (840
SE2d 385) (2020). However, at the time of Pope’s crimes in December 2014, a
felon like Pope, who was charged with possession of a firearm in violation of
OCGA § 16-11-131, was “no longer categorically precluded by the final clause
of OCGA § 16-3-24.2 from seeking immunity from criminal prosecution under
that statute,” Remy, 308 Ga. at 297, and Pope’s status as a convicted felon
would not preclude a finding of immunity as a matter of law. See id. at 300.
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trial if he had any hope of acquittal on self-defense grounds,”
(emphasis omitted) testifying before trial at an immunity hearing
and gaining the potential benefit of forgoing a trial entirely “would
have been strategically sound.”
But even if requesting an immunity hearing would have been
a reasonable strategy, that does not mean that trial counsel’s
different strategy was objectively unreasonable. See Lanier v. State,
310 Ga. 520, 525 (852 SE2d 509) (2020) (“The fact that appellate
counsel would have pursued the defense in different ways does not
render trial counsel ineffective.”) (citation and punctuation omitted);
Szorcsik v. State, 303 Ga. 737, 743 (814 SE2d 708) (2018) (“[W]hile
other counsel, had they represented appellant, may have exercised
different judgment, the fact that the trial counsel . . . made certain
difficult decisions regarding the defense tactics to be employed with
which appellant and his present counsel now disagree, does not
require a finding that the representation below was so inadequate
as to amount to a denial of effective assistance of counsel.”) (citation
and punctuation omitted).
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Pope has failed to show how his trial counsel’s strategic
decision not to reveal the defense theory to the prosecutor before
trial, and instead to wait and present Pope’s self-defense claim to
the jury, was objectively unreasonable. Because Pope has not
established that no competent attorney would have chosen not to
pursue a pre-trial immunity hearing under the circumstances of this
case, he has failed to show that his trial counsel’s performance was
constitutionally deficient, and his claim fails. See Broxton v. State,
306 Ga. 127, 138 (829 SE2d 333) (2019) (where trial counsel was not
asked why he did not file a pre-trial immunity motion, his decision
to forgo such a motion was presumed strategic because it “may be
reasonable for trial counsel to forgo a pre-trial immunity motion so
as to avoid subjecting his client to pre-trial cross-examination, or for
counsel to elect to demonstrate self-defense to the jury, rather than
to the judge”); Dent v. State, 303 Ga. 110, 119 (810 SE2d 527) (2018)
(where “trial counsel testified that it was a strategic decision not to
file . . . a [pre-trial] motion [for immunity from prosecution]
inasmuch as he did not want to expose [defendant] to pre-trial cross-
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examination from the State, thereby previewing [defendant]’s
anticipated trial testimony, and that he chose to attempt to
demonstrate self-defense to the jury, as opposed to the judge,”
defendant “failed to demonstrate that his trial counsel’s tactical
decision was unreasonable”).
Judgment affirmed. All the Justices concur.
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