Hall v. Jackson

310 Ga. 714

854 S.E.2d 539

HALL, Warden

v.JACKSON.

Jackson

v.Hall, Warden.

S20A1574

S20X1575

Supreme Court of Georgia.

Decided: February 1, 2021

Ronald Edwards Daniels, Daniels Law LLC, P.O. BOX 4939, Eastman, Georgia 31023, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Attorneys for the Appellant in S20A1574.

Stephen Elijah Brown-Bennett, Taylor Lee & Associates, LLC, 6855 Jimmy Carter Boulevard, Building 2100, Suite 2150, Norcross, Georgia 30071, Attorneys for the Appellee in S20A1574.

Stephen Elijah Brown-Bennett, Taylor Lee & Associates, LLC, 6855 Jimmy Carter Boulevard, Building 2100, Suite 2150, Norcross, Georgia 30071, Attorneys for the Appellant in S20X1575.

Ronald Edwards Daniels, Daniels Law LLC, P.O. BOX 4939, Eastman, Georgia 31023, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Attorneys for the Appellee in S20X1575.

Nahmias, Presiding Justice.

In 2007, Matthew Jackson was convicted of 28 counts of armed robbery and other crimes. During his trial, motion for new trial proceeding, and direct appeal, in which the Court of Appeals affirmed his convictions, Jackson was represented by lawyers from the Paulding County Public Defender's Office. In 2016, represented by a lawyer in private practice, Jackson filed a petition for habeas corpus claiming that his trial counsel provided ineffective assistance in three ways and that his appellate counsel provided ineffective assistance because that lawyer had a conflict of interest that prevented him from raising ineffective assistance of trial counsel claims in Jackson's amended motion for new trial. The habeas court denied relief as to Jackson's ineffective assistance of trial counsel claims, but granted relief and set aside Jackson's convictions on the ground that his appellate counsel had an actual conflict of interest. Warden Phillip Hall appeals the portion of the habeas court's judgment granting relief on the conflict of interest claim. In a cross-appeal, Jackson contends that the habeas court erred by denying relief as to his ineffective assistance of trial counsel claims.

As we explain below in the Warden's appeal, Jackson's appellate counsel had an actual conflict of interest that significantly and adversely affected his performance, so we affirm the grant of habeas relief. However, we vacate the part of the habeas court's judgment setting aside Jackson's convictions, because the proper remedy under these circumstances is to grant Jackson a new opportunity to pursue a motion for new trial and direct appeal with conflict-free counsel, not a new trial. In Jackson's cross-appeal, we vacate the portion of the habeas court's judgment denying relief as to the ineffective assistance of trial counsel claims, because such claims should be evaluated and raised in a new motion for new trial by conflict-free counsel and decided in the first instance by the trial court.

1. In February 2007, while represented by Charles Norman of the Paulding County Public Defender's Office, Jackson was tried on dozens of charges in connection with robberies by men wearing face coverings at a Paulding County dry cleaners and restaurant. The jury found him guilty of 28 counts of armed robbery, two counts of possession of a firearm during the commission of a crime, and one count of theft by receiving stolen property. The trial court sentenced Jackson to serve four life sentences in prison for four of the armed robbery counts and consecutive or concurrent terms of 20 years for each of the remaining armed robbery counts and five years for each of the firearm counts, along with 10 years on probation for the theft count.

(a) In April 2008, after the trial court granted Jackson's motion for an out-of-time appeal, he filed a motion for new trial through new counsel from the Paulding County Public Defender's Office. Five years later, in September 2013, he amended the motion through another lawyer from that office, Andrew Fleischman.¹

Fleischman raised four claims of trial court error, all of which were related to the court's denial in part of Jackson's pretrial motion to suppress evidence that investigators had collected from his mother's house, where Jackson was living.² Fleischman claimed in two enumerations of error that all of the evidence taken from the house should have been suppressed because during the trial – after the trial court had partially denied the motion to suppress – Atlanta Police Department Officer Cojo Joyner testified that after investigators arrested Jackson at the house and conducted a "protective sweep" of the residence, Officer Joyner found a handgun linked to the restaurant robbery in a basement bedroom during a "secondary sweep." Officer Joyner had not testified at the pretrial hearing on the motion to suppress, where there was no mention of a "secondary" sweep.

Fleischman argued that the secondary sweep was unlawful because Officer Joyner found the gun after investigators had completed their search for potentially dangerous individuals during the protective sweep; that based on the unlawful discovery of the gun, investigators obtained a search warrant and collected the handgun and several other items of evidence linked to the robberies; and that about a week later, investigators collected additional evidence after they obtained a second search warrant that was largely based on the discovery of the gun and the other evidence gathered during the first search. Fleischman asserted that all of the evidence found during the execution of the two search warrants should have been suppressed, as the warrants were based on Joyner's discovery of the gun during the "impermissible secondary sweep."³ At the hearing on the motion for new trial, the trial court orally denied the motion.

Fleischman then filed a motion for reconsideration, and the court held a hearing on that motion, during which Fleischman submitted Officer Joyner's personnel file to try to show based on the officer's disciplinary history that his trial testimony that he found the handgun in plain view was not credible. The court reserved ruling on whether that evidence was admissible. In February 2014, the trial court entered an order denying the motion for new trial and the motion for reconsideration, and about a month later, the court issued an amended order denying the motions, which expressly said that Officer Joyner's personnel file was irrelevant and was not considered by the court in reaching its decision.

(b) Still represented by Fleischman, Jackson appealed, again raising the claims that the trial court erred by denying in part the motion to suppress because Officer Joyner found the handgun during an unlawful secondary sweep and, consequently, that all of the evidence found during the execution of the two search warrants should have been suppressed. In addition, Fleischman claimed that the trial court erred by ruling that the protective sweep was incident to a valid arrest because the arrest warrant for Jackson did not include the information required by OCGA § 17-4-41 for an arrest on a theft offense and was therefore "void." Fleischman also claimed that the State committed a due process violation under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to call Officer Joyner to testify at the pretrial motion to suppress hearing and by failing to disclose the officer's disciplinary history before the trial.⁴

The Court of Appeals affirmed in an unpublished opinion. See Jackson v. State , Case No. A14A1853, slip op. at 1 (Mar. 25, 2015) (unpublished). The court held that Jackson had waived appellate review of all of these claims. As to the claim that the handgun was found by Officer Joyner during an unlawful secondary sweep, the court noted that "the only evidence [presented at the suppression hearing] showed that the gun at issue had been found during a single protective sweep," and that Officer Joyner testified for the first time at trial and stated that he had found the gun during this "secondary sweep after the officers had already cleared the house of people." Id. at 14-15. The Court of Appeals pretermitted deciding whether the secondary sweep was unlawful, because when Officer Joyner testified about the issue at trial, Jackson's trial counsel Norman did not renew his motion to suppress to assert that new ground or ask the trial court to reconsider its earlier ruling denying the motion in relevant part, so the trial court did not abuse its discretion "in declining to reconsider its earlier ruling in light of Joyner's testimony." Id. at 15. Accordingly, the Court of Appeals also rejected Jackson's claim that the evidence obtained from the subsequent execution of the search warrants should be suppressed. See id. at 15-16.

Similarly, as to Jackson's claim regarding OCGA § 17-4-41, the Court of Appeals pretermitted deciding whether the arrest warrant for Jackson was "void" for lack of specificity, concluding that he had waived the claim because Norman did not raise it in the motion to suppress and the trial court did not rule on it. See Jackson , slip op. at 9-10 & n.3. The Court of Appeals also noted that Jackson made no argument that he did not have a copy of the arrest warrant when he filed the motion to suppress and that even if he did not have a copy at that time, he did not assert that the warrant was void when it was admitted into evidence during the trial. See id. at 10. Finally, the Court of Appeals held that Jackson also waived his Brady claims for appeal because he did not raise those claims in the trial court. See Jackson , slip op. at 16-18.⁵ This Court denied Jackson's petition for certiorari. See Jackson v. State , Case No. S15C1266 ...