Emmons v. Bryant

864 S.E.2d 1

EMMONS, Warden

v.BRYANT.

S21A0532

Supreme Court of Georgia.

Decided: October 4, 2021

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Matthew David O'Brien, Meghan Hobbs Hill, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, for Appellant.

Brian Kammer, Mercer Law School, 1021 Georgia Avenue, Macon, Georgia 31207, for Appellee.

LaGrua, Justice.

This appeal arises from the grant of a petition for habeas corpus filed by Steven Bryant in connection with his 2015 conviction for aggravated sexual battery. In granting Bryant's petition, the habeas court ruled that Bryant's appellate counsel had rendered ineffective assistance by failing to properly assert several instances of trial counsel ineffectiveness, failing to properly present certain claims of trial court error, and failing to pursue relief for the violation of Bryant's right to conflict-free counsel under Garland v. State , 283 Ga. 201, 657 S.E.2d 842 (2008). The Warden contends that the habeas court erred, both in its substantive rulings and by granting relief on grounds not asserted by Bryant. We agree with the Warden that the habeas court erred in its rulings. Accordingly, we reverse.

1. The facts and procedural history relevant to our consideration of this appeal are as follows.

(a) Indictment and Trial.

In April 2015, Bryant was indicted on one count of aggravated sexual battery. The indictment charged that, in February 2015, Bryant intentionally penetrated the victim's vagina with his fingers without her consent. Also charged in the indictment was Kimberly Bridges, Bryant's girlfriend at the time, who later pled guilty to a lesser charge and testified at trial for the State.

The victim, Shirley Hudgins, died before trial. Without Hudgins’ testimony, the State's case rested largely on the testimony of Bridges. Bridges testified that on the night of the incident, she and Bryant, who were staying at Hudgins’ home at the time, had gotten high; that Bryant suggested waking Hudgins to participate in a sexual tryst but Bridges rejected the idea; and that, later, she saw Bryant commit the battery on Hudgins. Bridges also testified that Bryant texted Hudgins afterwards to apologize.

The State also presented the testimony of three other witnesses who were in contact with Hudgins in the aftermath of the incident. Tina Gentry, a sexual assault nurse who examined Hudgins less than 24 hours after the incident, testified that in the course of her examination she observed a small abrasion in Hudgins’ vaginal area, which was consistent with Hudgins’ description of how she had been penetrated. Gentry also testified that Hudgins described receiving text messages from Bryant after the incident, asking Hudgins to "just let this go and forget about it." The other two witnesses — Hudgins’ boyfriend, Jimmy Ray Hunter, and her close friend, Krista Barker — testified that Hudgins told them on the morning after the incident that she had awakened to find Bryant breathing heavily in her ear and with his fingers in her vagina; both testified that she was extremely distraught.

Bryant testified in his own defense, denying having touched Hudgins and claiming that he had only been attempting to ask her where he could find a light for his cigarette. Bryant presented no other evidence. The jury found Bryant guilty, and he was thereafter sentenced as a recidivist to life in prison without the possibility of parole.¹

(b) Post-Trial Proceedings and Appeal.

Through his appointed trial counsel, James Wyatt, Bryant filed a motion for new trial. While the motion for new trial was pending, Bryant filed a pro se motion to remove Wyatt, alleging he had rendered ineffective assistance. Seven days later, Bryant filed a pro se "amendment" to his pro se motion, indicating his desire to continue with Wyatt's representation. The motion for new trial was ultimately denied,² and, through Wyatt, Bryant appealed.

While the appeal was pending, Bryant filed various pro se motions in the trial court requesting the substitution of counsel, again alleging ineffective assistance and a conflict of interest. In light of these filings, Wyatt filed a motion on Bryant's behalf in the Court of Appeals, seeking a remand of the appeal. Wyatt also filed Bryant's appellate brief, asserting trial court error in various respects. Subsequently, the motion to remand was granted, and the case was remanded to the trial court with direction to appoint new appellate counsel and to conduct "appropriate proceedings concerning the issue of ineffective assistance."

On remand, new appellate counsel, Juwayn Haddad, was appointed. Haddad filed a second motion for new trial on Bryant's behalf, asserting both trial court error and ineffective assistance claims. At the hearing on the motion, after the court reviewed the history of the case, Haddad notified the court that he had not been aware until then that any prior post-trial proceedings had taken place. Presuming that any claims of trial court error had already been addressed, Haddad then proceeded only on the ineffectiveness claims, questioning Wyatt about his trial strategy in two respects. First, Haddad asked why Wyatt did not object to the testimony from Bridges and Gentry about Bryant's apologetic text messages to Hudgins, given that the original text messages were never admitted in evidence. Wyatt responded that he "probably didn't think to object" to them and there was no strategic reason he did not. Second, Haddad asked about why Wyatt did not cross-examine Bridges regarding her plea deal. Wyatt testified that he did not do so because "I was of the opinion she received quite a harsh sentence for her part in this case .... I think she had some probation revoked and — got some time for it, and her involvement was fairly minor, was my opinion." Following the hearing, the second motion for new trial was denied.

Bryant's appeal was transmitted back to the Court of Appeals,³ and Haddad filed a second appellate brief, raising enumerations both as to trial court error and Wyatt's ineffectiveness. Rejecting these contentions, the Court of Appeals affirmed in an unpublished opinion. See Bryant v. State , Case No. A18A0342 (decided June 12, 2018). After concluding that the trial court had not abused its discretion in admitting Hudgins’ hearsay statements through Barker and Gentry, the Court of Appeals rejected Bryant's two claims of trial counsel ineffectiveness. First, as to Wyatt's failure to assert a "best evidence" objection⁴ to the testimony about the apologetic text messages, the Court of Appeals held that Bryant had demonstrated no prejudice. See id., slip op. at 11-13 (2) (a). Specifically, the Court of Appeals held that Bryant had not demonstrated that the testimony regarding the text messages would not have been admissible under OCGA § 24-10-1004 (providing that original writings are not required if they are lost, destroyed, or otherwise unattainable). As to Bridges’ plea deal, the Court of Appeals noted that Bryant had presented no evidence of the terms of the plea agreement, including the sentence Bridges received and whether the agreement required her to testify against Bryant. See Bryant , slip op. at 13-14 (2) (b). In addition, the Court of Appeals concluded that Wyatt's tactical decision not to probe Bridges on this topic — because he believed she had received a harsh sentence given her level of involvement — was not patently unreasonable. See id. at 14 (2) (b).

(c) Habeas Proceedings.

Bryant filed a pro se petition for habeas corpus, which he later amended, asserting a litany of alleged trial and appellate errors and other claims, including due process violations, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. At the subsequent habeas hearing, both Haddad and Wyatt testified about their involvement in Bryant's case.

Upon questioning by the Warden's counsel, Haddad testified that he has practiced criminal defense since 1993 and, at the time he was appointed to represent Bryant, had handled more than 150 jury trials and 80 appeals. Haddad testified that he believed he was sufficiently prepared for the motion for new trial hearing and would have sought a continuance had he believed it was necessary. In pursuing Bryant's appeal, Haddad testified that he conferred with Bryant and reviewed Wyatt's initial appellate brief, Wyatt's trial file, and the trial transcript. As to which arguments to assert, Haddad testified that he decided to raise the two ineffectiveness claims he believed were the strongest, stated that his practice on appeal was to raise only what he believed were the most viable issues, and explained his reasoning for not raising certain claims of trial error. Specifically, he explained that he had not challenged the trial court's refusal to give a jury instruction on the lesser included offense of sexual battery because he believed Bryant's denial of any contact with Hudgins precluded his entitlement to such an instruction; that he had not challenged Bryant's life-without-parole sentence because he believed the recidivist statute compelled that result; and that he had not raised insufficiency of the evidence because he did not believe it was a viable argument. He also testified that he believed he was procedurally barred from raising trial errors that had not already been raised in the initial appellate brief filed by Wyatt.

Bryant, who appeared at the hearing pro se, questioned Haddad only about what documents he had received from Wyatt and why he had not raised insufficiency of the evidence.

Haddad reiterated that, in light of Bridges’ and Gentry's testimony, he "didn't think sufficiency was a valid argument to raise," noting also that, because this argument was not raised in the initial appellate brief, he believed he was barred from raising it.

Bryant questioned Wyatt at much greater length. Bryant asked whether Wyatt had obtained audio recordings of statements made to an...