SPELL v. The STATE.

S19A0066

Supreme Court of Georgia.

Decided: May 20, 2019

Betsey L. Tate, Attorney General, Georgia Public Defender Standards Council - Appellate Division, 540 W. Lamar Street, 2nd Floor, Katherine Lynn Dodd, Georgia Public Defender Standards Council - Appellate Division, 510 W. Lamar Street, 2nd Floor, Americus, Georgia 31709, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Katherine DeRosa Emerson, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Andrew J. Ekonomou, Thomas Edwars Buscemi, Brunswick Judicial Circuit District Attorney's Office, Glynn County Courthouse, 701 H Street, Box 301, Brunswick, Georgia 31520, Jacquelyn Lee Johnson, District Attorney, Brunswick Judicial Circuit District Attorney's Office, P.O. Box 369, Woodbine, Georgia 31569, for Appellee.

Blackwell, Justice.

*347**822Appellant James Ralph Spell was tried and convicted of two murders, an aggravated battery, an aggravated assault, and two firearm offenses, all in connection with the fatal stabbing of his **823ex-wife and the fatal shootings of her parents. On appeal, he claims that he was denied the effective assistance of counsel at trial. We find no merit in this claim, but we note that the trial court erred when it failed to merge the aggravated battery and aggravated assault with one of the murders of which Appellant was convicted. Accordingly, we vacate the convictions for aggravated battery and aggravated assault, and we otherwise affirm.1

1. Appellant and Amanda Harrison Spell married in 2004 and divorced in 2005. Even after their divorce, they sometimes would get together, and on the evening of July 30, 2007, Amanda visited Appellant at his home. Early the next morning, Appellant went to the Wayne County home that Amanda shared with her parents, Gary and Jeaney Harrison. Appellant confronted Amanda and accused her of having stolen $150 from his wallet. They argued, and at some point, Amanda drew a .22-caliber revolver. Appellant disarmed her, and he then fired a round into the sofa on which she was seated.

Having heard a gunshot, Mr. Harrison then emerged from a bedroom, carrying a 12-gauge shotgun. He fired or attempted to fire the shotgun at Appellant, but Appellant was not wounded in either event. At that point, Appellant fatally shot Mr. Harrison with the revolver and retrieved the shotgun. As Ms. Harrison ran from the house, Appellant shot her in the back with the shotgun.2 Appellant then grabbed a knife from the kitchen and found Amanda in a bedroom to which she had retreated. He said to her: "See what you made me do? All you had to do was give me my motherf***ing sh*t." He then fatally stabbed Amanda.

**824Appellant left the scene, and he was apprehended the next day as he was preparing to flee to Mexico. At the time of his apprehension, Appellant urged the arresting officers to shoot him. Following his arrest, Appellant confessed that he had shot the Harrisons and that-just before he "ripped [Amanda] open" with the knife-he told her that "all this could've been avoided" if she had returned his money.

(a) Appellant does not dispute that the evidence is legally sufficient to sustain *348his convictions, but consistent with our usual practice in murder cases, we nevertheless have reviewed the evidence and considered its sufficiency. Viewed in the light most favorable to the verdict, we conclude that the evidence adduced at trial is sufficient to authorize a rational trier of fact to find Appellant guilty of the crimes of which he was convicted. See *Jackson v. Virginia*, 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(b) Appellant does not raise any merger error, but we have discretion to correct merger errors on direct appeal, see *Nazario v. State*, 293 Ga. 480, 486-487 (2) (b), 746 S.E.2d 109 (2013), and here, we note that the trial court erred when it failed to merge the aggravated battery of Ms. Harrison and the aggravated assault upon Ms. Harrison with her murder. The murder, aggravated battery, and aggravated assault all are based upon the same act-Appellant shooting Ms. Harrison in the back with a shotgun. Accordingly, we vacate the convictions for aggravated battery and aggravated assault. See *Sullivan v. State*, 301 Ga. 37, 43 (3), 799 S.E.2d 163 (2017).

2. Appellant claims that he was denied the effective assistance of counsel when his lawyers failed to object to evidence that was, he says, inadmissible under *Mallory v. State*, 261 Ga. 625, 409 S.E.2d 839 (1991), and when they failed to object to the prosecuting attorney referencing the same evidence in his closing argument. In *Mallory*, this Court announced as a categorical rule that evidence that an accused failed to come forward to law enforcement prior to his arrest is "far more prejudicial than probative" and is, therefore, inadmissible. 261 Ga. at 630 (5), 409 S.E.2d 839.3 In this case, the prosecution presented evidence that, after shooting the Harrisons and stabbing Amanda, Appellant went to the home of his best friend, Derrick Jones, and subsequently spoke again with Jones by telephone. Jones testified that, on both occasions, he urged Appellant to go to the police. Appellant responded that he "couldn't" go to the police, Jones said, because he was scared.

**825The prosecuting attorney briefly referred to this evidence in closing argument:

> [Appellant] is a man who [has] been told several times to turn himself in, but he's going to Mexico. I'm sorry, is that what a guilty man does? Of course. Is that what someone who's innocent, who has no-who has-I was just defending myself. I need to go talk to the police. No. You don't flee to Mexico if you've done nothing wrong.

Appellant's lawyers objected to neither the evidence nor the argument.

To prevail on a claim of ineffective assistance, Appellant must prove both that the performance of his lawyers was deficient and that he was prejudiced by this deficient performance. See *Strickland v. Washington*, 466 U.S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that the performance of his lawyers was deficient, Appellant must show that his lawyers performed their duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-688 (III) (A), 104 S.Ct. 2052. See also *Kimmelman v. Morrison*, 477 U.S. 365, 381 (II) (C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to prove that he was prejudiced by the performance of his lawyers, Appellant must show "a reasonable probability that, but for his lawyers' unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." *Strickland*, 466 U.S. at 694 (III) (B), 104 S.Ct. 2052. This burden is a heavy one, see *Kimmelman*, 477 U.S. at 382 (II) (C), 106 S.Ct. 2574, and Appellant has failed to carry it.

By the time Jones testified, the prosecution already had presented overwhelming evidence that Appellant had killed Amanda and both of her parents and that the killings of Amanda and her mother were unlawful homicides. Although the evidence presented by the prosecution to that point suggested that Appellant may have been justified in killing *349Mr. Harrison, the evidence made out a strong case that he was not justified in killing Amanda or Ms. Harrison. By that point, his lawyers had become convinced that he likely would be found guilty of unlawfully killing Amanda and her mother-either as murder or voluntary manslaughter-and to the extent that he was found guilty of one or more murders, his lawyers were worried about the death penalty.

The testimony by Jones about which Appellant now complains-that Jones urged Appellant to go to the police but Appellant said he "couldn't" because he was scared-added little to the prosecution's strong case. To the extent that this testimony suggested **826consciousness of guilt, it did so no more strongly than evidence that Appellant was preparing to flee to Mexico when he was apprehended and that he urged the arresting officers to shoot him. For these reasons, the testimony had a limited downside for Appellant. Moreover, there was a potential upside to Jones's testimony. As one of the lawyers explained at the hearing on the motion for new trial, Jones's emotional testimony about his best friend-which linked Appellant's failure to go to the police with his statements that he was scared-was "very powerful" and would tend to humanize Appellant in the eyes of the jury. Humanizing Appellant would be especially important, of course, to lawyers like Appellant's, who had reasonably become concerned about the possibility of the death penalty.4

Considering all of the circumstances with which Appellant's lawyers were presented when Jones gave the testimony about which Appellant now complains-the limited downside of that testimony, its potential upside, the other strong evidence against Appellant, and the looming threat of a sentencing trial and possible death sentence-it was not unreasonable for the lawyers to forgo an objection to Jones's testimony. See *Marshall v. State*, 299 Ga. 825, 827 (2) (a), 792 S.E.2d 350 (2016). Moreover, in light of the other strong evidence against Appellant, we see no reasonable probability that an objection to this evidence would have produced a different and more favorable outcome for Appellant. See *Blaine v. State*, 305 Ga. 513 (4), 826 S.E.2d 82 (2019) ("[T]rial counsel cannot be ineffective for failing to raise claims that would not have ... made any difference in the outcome of [the defendant's] case."). Appellant has failed to prove that he was denied the effective assistance of counsel when his lawyers failed to object under *Mallory*.

Appellant likewise has failed to establish that his lawyers rendered ineffective assistance when they failed to object to the prosecuting attorney referencing Jones's testimony in his closing argument. In the first place, Appellant having strategically forgone an objection to the testimony itself, that testimony-even if it might have been objectionable under *Mallory* when offered5 -was properly in evidence by the time of closing argument. See *Sanders v. State*, 290 Ga. 637, 640-641 (4), 723 S.E.2d 436 (2012). Moreover, the reference in closing argument was brief, and it was commingled with references to the evidence that Appellant was preparing to flee to Mexico, which **827separately and at least as strongly suggested a consciousness of guilt. Especially in light of the other strong evidence against Appellant, there is no reasonable probability that an objection to the closing argument of the prosecuting attorney would have produced a different outcome for Appellant. See *Blaine*, 305 Ga. at 521 (4), 826 S.E.2d 82.

*Judgment affirmed in part and vacated in part.*

All the Justices concur.

1

Appellant committed his crimes in July 2007. A Wayne County grand jury indicted Appellant in November 2007, charging him with the murder of Amanda Harrison Spell, the murder of Jeaney Harrison, the murder of Gary Harrison, an aggravated battery upon Ms. Harrison, an aggravated assault upon Ms. Harrison, cruelty to children, the unlawful possession of a firearm during the commission of a felony, and the unlawful possession of a firearm by a convicted felon. The prosecution gave notice of its intent to seek the death penalty, and the trial court moved venue to Glynn County for purposes of trial. In January 2012, Appellant was tried by a Glynn County jury. The trial court acquitted him by directed verdict of the murder of Mr. Harrison and of cruelty to children, and the jury found him guilty on all the remaining charges. After a sentencing trial, the jury declined to impose the death penalty. The trial court sentenced Appellant to consecutive terms of imprisonment for life without the possibility of parole for the murders of Amanda and Ms. Harrison, consecutive terms of imprisonment for twenty years for the aggravated battery and aggravated assault, and consecutive terms of imprisonment for five years for each of the firearm offenses. Appellant timely filed a motion for new trial, which he amended in August 2015. The trial court denied the motion for new trial in October 2017, and Appellant timely filed a notice of appeal. His appeal was docketed in this Court for the term beginning in December 2018 and submitted for decision on the briefs.

2

Ms. Harrison was wounded but escaped to the home of a neighbor. Her wounds, however, proved fatal, and she died four days later.

3

*Mallory* was decided under our old Evidence Code, and this case was tried under the old Evidence Code. We note, however, our recent decision in *Orr v. State*, --- Ga. ---- (2), 827 S.E.2d 892, 2019 WL 1982963 (Case No. S18G0994, decided May 6, 2019), in which we held that the *Mallory* rule was abrogated by the adoption of our new Evidence Code.

4

We note that Appellant's lawyers were at least partially successful; the jury ultimately declined to impose the death penalty.

5

The State has not asked us in this case to reconsider "whether *Mallory*'s exclusionary rule should continue to be applied to cases governed by the old Evidence Code." *Orr v. State*, --- Ga. ---- (2) n.6, 827 S.E.2d 892, 2019 WL 1982963 (Case No. S18G0994, decided May 6, 2019).