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In the Supreme Court of Georgia
Decided: February 21, 2023
S22A0893. EVANS v. THE STATE.
BOGGS, Chief Justice.
Appellant Jonathan Tavarus Evans challenges his convictions
for malice murder and other crimes in connection with the shooting
death of Jamirus Wright and the non-fatal shooting of Brandon
Martin. Appellant’s only claim on appeal is that he was denied
constitutionally effective assistance of counsel at trial due to his
attorney’s failure to introduce into evidence footage from the initial
responding officers’ body cameras containing statements by them
that he claims would have lent support to his sole defense of
justification. However, Appellant has not shown that his trial
counsel’s failure to introduce such evidence was objectively
unreasonable. Thus, he has failed to show that his counsel’s
performance was constitutionally deficient, which is fatal to his
claim. Accordingly, we affirm. 1
1. The evidence at trial showed the following. On Friday
night, April 27, 2018, Martin visited Wright at Wright’s mother’s
apartment in Augusta. The two men sat for hours on her patio
drinking beers and talking about sports. At some point, their friend
Angela Brooks, who lived in an adjacent building, stopped by.
Wright and Martin eventually ran out of beer, and at around 3:00
a.m. on the morning of Saturday, April 28, 2018, Wright, Martin,
and Brooks walked from the apartment complex to a nearby
convenience store. The trip took between five and ten minutes.
1 Wright and Martin were shot in the early morning hours of Saturday,
April 28, 2018. On July 10, 2018, a Richmond County grand jury indicted
Appellant for malice murder, felony murder, aggravated assault for shooting
Martin, two counts of possession of a firearm during the commission of a felony,
and possession of less than an ounce of marijuana. At a trial from March 3 to
6, 2020, the jury found Appellant guilty of all charges except for the marijuana
possession count. The trial court sentenced Appellant to serve life in prison
without the possibility of parole for malice murder and a total of 30 years
consecutive for aggravated assault and the two firearm-possession convictions;
the felony murder count was vacated by operation of law. On March 27, 2020,
Appellant filed a motion for new trial, which he amended with new counsel on
October 22, 2020, and again on May 13, 2021. The trial court held an
evidentiary hearing on June 28, 2021, and entered an order denying the motion
on January 14, 2022. Appellant filed a timely notice of appeal, and the case
was docketed in this Court to the August 2022 term. The case was orally
argued on November 8, 2022.
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Surveillance footage from the convenience store showed Martin
entering the convenience store at 3:07 a.m.; Wright and Brooks
stayed outside and smoked a cigarette. Martin bought a 12-pack of
beer and exited the store at 3:09 a.m. The three friends then walked
back to the apartment complex, where Brooks went home while
Wright and Martin resumed their positions sitting on Wright’s
mother’s patio.
Appellant, who used to live in the same apartment complex as
Wright’s mother and Brooks, had previously gotten into a physical
altercation with Wright and Martin, and he spotted Martin inside
the convenience store. At 3:10 a.m., approximately one minute after
Martin exited the store, Appellant did the same. Appellant looked in
the direction that Martin went before abruptly turning around and
going back inside the store. He emerged from the store just 30
seconds later with a pair of clear latex gloves in his hand and got
into the driver’s seat of a black 2017 Honda Civic that was parked
in front of the store. Appellant waited in the parked car for several
minutes, and at 3:16 a.m., he drove to the apartment complex.
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Martin testified that he saw Evans drive to a nearby building
in the apartment complex and get out of his car. According to
Martin, Evans then got back in his car, drove by the patio on which
he and Wright were sitting, and parked his car in front of Wright’s
mother’s apartment. Martin testified that Evans got out of his car,
and started firing at Martin and Wright. Several rounds struck the
iron railing in front of the patio and fragmented into shrapnel that
ricocheted in all directions. Wright sustained multiple lacerations
from the metal shrapnel, including one jacket fragment that sliced
through the right side of his throat and severed his carotid artery,
killing him. Martin was struck in the back of the leg, between his
buttocks and the back of his knee, but he was able to crawl inside
the apartment and call 911. Martin was in so much pain that he
could not effectively communicate with the 911 operator, so he
handed the phone to Wright’s mother, who was awakened by the
gunfire and finished the call.
Later that same day, officers from the Richmond County
Sheriff’s Office arrested Appellant at his girlfriend’s apartment after
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using the convenience store surveillance footage to determine the
license plate number of the car that Appellant had been driving.
Appellant was taken into custody, where he was advised of his rights
under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966), and agreed to speak to law enforcement officers after signing
a written waiver of his rights. Investigator Lucas Grant, the lead
investigator, interviewed Appellant, and a video recording of the
interview was later played for the jury. In the interview, Appellant
said that Wright and Martin saw him parked at the apartment
complex and “talked s**t” to him and that Wright pointed a gun at
him and said that he was going to shoot Appellant’s “b**ch a**.”
Appellant admitted that Wright did not fire any shots at him but
said that he was scared for his life and that he fired four shots from
his rifle at Wright and Martin.
Although law enforcement officials found a black cell phone
that belonged to Wright on the patio of the apartment, they found
no gun or bullets on the patio or inside the apartment, and no
evidence that any shots had been fired from those locations. Further,
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Martin testified that neither he nor Wright had a firearm, and
Wright’s mother testified that her son and Martin had never owned
firearms. Brooks also testified that she did not see Martin with a
gun that night and that Martin and Wright have “never been the
type to carry a weapon.” Law enforcement officials recovered four
bullet casings from the location from which Appellant fired at
Wright and Martin, which was about 100 feet in front of Wright’s
mother’s apartment. Forensic evidence showed that those casings
were fired from Appellant’s SKS rifle, which a law enforcement
official recovered from one of Appellant’s friends. At trial, the jury
was instructed on the law of justification and self-defense
2. Appellant’s sole claim on appeal is that he was denied
constitutionally effective assistance of counsel at trial. We disagree.
(a) As background, in an amended motion for new trial,
Appellant contended that trial counsel was constitutionally
ineffective by failing to present evidence of audio and video
recordings made by the initial responding officers’ body cameras,
which, according to Appellant, would have supported his claim of
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self-defense.
At the motion for new trial hearing, Appellant introduced the
body-camera recordings of several of the officers. The recordings
were made before law enforcement officials became aware of
Appellant’s role in the shooting and before evidence was discovered
showing that Appellant had fired four shots toward Wright and
Martin while standing about 100 feet away from the patio. In the
recordings, the officers said that the bullets were not fired “from . . .
outside” the apartment, but instead “came from the inside.” One
officer said “[a]ll that sh*t happened inside,” and another said, “I
think so too.” They also expressed concern that Martin “knows
something and isn’t saying anything”; that “[m]aybe [Martin and
Wright] shot each other”; and that Wright’s mother “had plenty of
time to hide the guns.”
At the motion for new trial hearing, trial counsel testified that
the defense at trial was that Wright and Martin “became verbally
abusive” to Appellant and that Appellant thought that “one of the
individuals was holding up what [Appellant] thought was a gun,”
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prompting Appellant to fire in self-defense. Counsel added that he
did not need any particular evidence to be able to argue to the jury
that there was time, before law enforcement officials arrived at the
scene, for someone in the apartment to hide a gun, and that
“anybody can figure that out.” Trial counsel explained that because
a black cell phone was found on the patio, he was able to present the
defense that Appellant was justified in shooting because he had been
threatened and because he either saw a firearm that had been
hidden after the shooting or he saw an object that it was reasonable
for him to think was a firearm. Furthermore, counsel testified that
the body-camera recordings were made when the officers had just
arrived at the scene and were “kind of spit-balling possibilities” and
that he “can’t ask somebody, well, did this ever cross your mind,”
adding that all he could “deal with is what the evidence is.” He also
explained that the officers’ initial speculation that there may have
shots fired from inside the apartment would not have been helpful
to the defense because there was no forensic evidence that shots
were fired from inside the apartment; because, in his statement,
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Appellant said that Wright and Martin were outside of the
apartment on the patio and did not fire shots at him; because the
evidence at trial showed, consistent with Evans’s statement, that
Wright and Martin were on the patio; and because, given the
darkness that night and the fact that Appellant was located about
100 feet from the apartment and at a lower elevation than the
apartment, someone inside the apartment “would have never known
that [Appellant] was even out there.” Further, counsel stated that
presenting evidence of the body-camera recordings would not “have
made a lot of sense given the entirety of the evidence” and did not
“really . . . fit in with what our defense had to be.” In denying
Appellant’s motion for new trial, the trial court concluded that trial
counsel’s decision not to introduce the evidence was a strategic one
and did not constitute constitutionally deficient performance.
On appeal, Appellant argues that trial counsel was
constitutionally ineffective in failing to present evidence of the
officers’ observations that shots were possibly fired from inside the
apartment toward Appellant’s location.
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(b) To establish that his trial counsel was constitutionally
ineffective, Appellant was required to prove both deficient
performance by counsel and resulting prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
To show that his lawyer’s performance was deficient, Appellant had
to demonstrate that the lawyer performed his duties in an
objectively unreasonable way, considering all the circumstances and
in the light of prevailing professional norms. See id. at 687-688. The
law recognizes a “strong presumption” that counsel performed
reasonably, and the defendant bears the burden of overcoming this
presumption. See Strickland, 466 U.S. at 689. To carry this burden,
Appellant must show that “no reasonable lawyer would have done
what his lawyer did, or would have failed to do what his lawyer did
not.” Washington v. State, 313 Ga. 771, 773 (873 SE2d 132) (2022)
(cleaned up). Even when a defendant has proved that his counsel’s
performance was deficient, he also must prove resulting prejudice
by showing “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
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different.” Strickland, 466 U.S. at 694. Moreover, “there is no reason
for a court deciding an ineffective assistance claim . . . to address
both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697.
(c) Based on this record, Appellant has failed to prove that trial
counsel’s performance was deficient. To begin, contrary to
Appellant’s assertion, the body-camera recordings do not indicate
that the responding officers thought that shots were fired from
inside the apartment toward Appellant’s location some 100 feet
away. They indicate only that the officers thought that the shots
that hit Wright and Martin may have been fired from inside the
apartment and that Wright and Martin may have been shooting at
each other. Moreover, an attorney’s decisions “as to what witnesses
and other evidence to present are a matter of trial strategy,” see
Horton v. State, 310 Ga. 310, 328 (849 SE2d 382) (2020) (cleaned
up), and such decisions will form the basis for an ineffectiveness
claim “only if they were so patently unreasonable that no competent
attorney would have followed such a course.” Washington, 313 Ga.
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at 773 (cleaned up). Here, the record shows that trial counsel made
a strategic choice to establish the facts needed to support Appellant’s
self-defense claim by relying on Appellant’s statement that,
although the victims did not shoot toward him, Appellant
nevertheless acted in self-defense based on the victims’ verbal threat
to him and Appellant’s perception that Wright was pointing a gun
at him. Moreover, the defense as presented by counsel was
consistent with the forensic evidence that no shots were fired from
inside the apartment, with witnesses’ testimony that Martin and
Wright were unarmed, and with Appellant’s own statement that the
victims did not fire at him. On the other hand, the strategy that
Appellant now contends that counsel should have adopted would
have been inconsistent not only with the forensic evidence and
witness testimony but also with Appellant’s own statement. Under
these circumstances, Appellant has failed to overcome the strong
presumption that counsel’s performance was objectively reasonable.
See Davis v. State, ___ Ga. ___ (___ SE2d ___) (2022 WL 17813444,
at *8) (Dec. 20, 2022) (holding that the defendant had failed to
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overcome the strong presumption that trial counsel performed
reasonably where the record showed that counsel made a strategic
choice to present the defendant’s self-defense claim through cross-
examination of a witness and not by calling an expert witness to
testify); Birdow v. State, 305 Ga. 48, 49, 52-53 (823 SE2d 736) (2019)
(holding that trial counsel did not perform deficiently in electing not
to call a defense expert to help establish the defendant’s claim of
self-defense and instead relying on cross-examination of a State’s
witness to support that claim, particularly because the expert’s
testimony would have contradicted a part of the defendant’s
statement to law enforcement officers that formed the basis for his
self-defense claim). Accordingly, Appellant’s claim of ineffective
assistance fails.
Judgment affirmed. All the Justices concur.
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