Harris v. State

314 Ga. 370

877 S.E.2d 255

HARRIS

v.The STATE.

S22A0675

Supreme Court of Georgia.

Decided: August 9, 2022

Stanley W. Schoolcraft, III, Office of the Public Defender, 289 Jonesboro Road, Suite 245, McDonough, Georgia 30253, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Ashleigh Dene Headrick, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Elizabeth Rosenwasser, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30303, Kevin Christopher Armstrong, Senior A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, 4th Floor, Atlanta, Georgia 30306, for Appellee.

Peterson, Presiding Justice.

Juan Keon Harris was convicted of murder and other crimes committed against Tony Morris.¹ On appeal, Harris argues that the trial court should have granted him a continuance to call missing witnesses and that his trial counsel provided ineffective assistance for several reasons related to witness preparations and for withdrawing requests for jury charges. Harris had not subpoenaed the missing witnesses and did not know where they were, so the trial court did not abuse its discretion in denying the continuance. Harris has failed to show what helpful testimony he would have elicited had his counsel prepared better, and so he cannot show any prejudice. Harris has failed to show that his counsel was deficient in withdrawing requests for jury charges that the trial court reasonably understood would have required that Harris admit the shooting. And Harris has failed to show cumulative prejudice. We affirm.

Tony Morris² was shot four times and killed in the early morning hours on September 29, 2001. Using phone records, police identified Harris as someone Morris had spoken to using a phone chat line service the night Morris was killed. Talking with police during a search of his property, Harris, trembling and breathing quickly, denied owning a gun, and uttered, "[I]f I had a gun used to kill someone, I would have done thrown it in the lake." There was a lake across the street from Harris's home. Police found a half-empty box of Magtech 9mm ammunition in Harris's car; Harris claimed that a friend had left it there. Investigators found Magtech 9mm shell casings at Morris's home.

Police later contacted the friend and asked him to call Harris. During that call, the friend asked Harris whether Harris had given his gun to anyone, and Harris indicated that he had not. Questioned again by police, Harris said that he owned a BB gun that he had given to his half-brother, Antravous Favors. Harris denied ever having owned or held a 9mm handgun. But when the questioning officer implied that the police knew more about a firearm than he had previously told Harris, Harris's lip began to quiver, his eyes watered, and he slumped forward, but did not say anything. Favors later told police he had seen Harris with a Hi-Point 9mm handgun, which a ballistics expert testified could have ejected the casings found in Morris's home.

Favors told the police and, during trial, testified that Harris had confessed to the murder. On direct examination, Favors admitted to a past conviction for armed robbery. Favors said Harris called and said "[h]e had something to tell me." The two met, and Harris admitted that he killed someone (whom he did not name). Harris said he had met this person on a phone chat line service, and the person invited Harris over. The person was wearing women's lingerie when Harris arrived, but Harris noticed that the person had male physical characteristics. Harris asked for the person's phone number, and the person stepped away to get something to write with. When the person returned, Harris pulled out a gun and said "you already know what it is," by which Harris meant that it was a robbery. The person began running at Harris and screaming, so Harris shot the person repeatedly until his gun was empty. Harris told Favors that the person had only a pencil in hand, he shot the person in the chest and stomach, and he threw the gun into a lake after speaking with the police for the first time. Favors, who was in jail when Morris was killed but had been released before speaking to Harris, did not contact the police and initially denied knowing anything when questioned, testifying that he had wanted to protect Harris.

Before cross-examining Favors, Harris's counsel said, "I didn't think he was testifying until today." He had Favors stand to show the jury that he was wearing a county jail inmate uniform (not, as he had testified on direct examination, a state prison uniform). Favors admitted that his convictions included numerous felonies. Favors testified that he told the police about Harris's confession only after the police said Harris had identified Favors as the person who killed Morris, angering him, but the questioning officer denied telling Favors this. Favors denied telling Harris's previous counsel that Favors had fabricated his story, and denied writing a letter to his grandmother expressing animus toward Harris.

Harris presented alibi evidence from his grandmother and mother. He also sought a self-defense jury instruction. During the jury charge conference, the trial court said it would instruct the jury as to alibi and self-defense. When the trial court indicated that it also intended to give an instruction on affirmative defenses generally, Harris objected, noting that the intended instruction "admits the doing of the act," whereas in his case the issue of self-defense was raised by Favors's testimony, not by any admission on Harris's part. The court responded that Harris could not raise self-defense or justification without an admission, although it did note Harris's ability to argue inconsistent defenses. Over Harris's objection, the trial court stated that it would charge the jury on both self-defense and affirmative defenses, denying Harris's request for an additional charge on inconsistent defenses. Counsel then said that he would "involuntarily withdraw" his request for a charge on self-defense or any other justification charge, because he could not "permit the jury to hear in any shape, manner or fashion that Mr. Harris is admitting that he did anything." When trial resumed the following Monday, the trial court denied Harris's supplemental request for modified versions of these charges. Harris renewed his objections after the trial court's charge, which lacked any instruction on affirmative defenses, self-defense, or justification.

Immediately after the trial court denied his supplemental request, Harris's counsel said that he had been negligent in failing to watch the videotaped interviews of Favors and Julius Martin (a co-defendant of Harris and Favors in an unrelated case); he said the videos would "substantially further any claim of self-defense" and help him impeach Favors. He moved to reopen the evidence, but conceded that Martin was unavailable, and that prosecutors had indicated to him that they would not agree to admission of the videotapes without the proper foundation being laid and Martin being available for questioning. The trial court responded that counsel was "intentionally trying to inject error" and it would "overrule" his "objections."

Harris's closing arguments pointed to alibi evidence and urged the jury to find Favors's testimony not credible. Alternatively, counsel argued that the jury should find Harris guilty of voluntary manslaughter if it believed Favors, but did not argue self-defense. The jury acquitted Harris of felony murder predicated on attempted armed robbery, but found him guilty of the remaining counts.

1. There was no error in denying Harris's continuance motion.

Harris first argues that the trial court erred in not granting the continuance motion that he made on the morning that trial began. Explaining the basis for the motion, Harris's trial counsel represented to the court that he had "been unable to locate a number of material witnesses" or "secure any current address or contact information" for them. He wanted "another week or two to try to find these people," possibly by "serving a subpoena for production of evidence, perhaps on the Georgia Department of Driver Services, to see if they have addresses for any of these individuals." The trial court denied the motion.

"All applications for continuances are addressed to the sound legal discretion of the court[,]" and we review a trial court's denial of a continuance motion for an abuse of discretion. OCGA § 17-8-22 ; see also Geiger v. State , 295 Ga. 648, 651 (3), 763 S.E.2d 453 (2014). None of the alleged missing witnesses had been subpoenaed by the defense, and counsel was unable to say where the witnesses were. And there had already been a long delay due to Harris filing a speedy trial motion, and then unsuccessfully appealing its denial. See Harris v. State , 284 Ga. 455, 667 S.E.2d 361 (2008). Accordingly, "we see no abuse of discretion in the denial of a continuance." Cain v. State , 277 Ga. 309, 311 (3), 588 S.E.2d 707 (2003), overruled in part on other grounds by Dickens v. State , 280 Ga. 320, 323 (2), 627 S.E.2d 587 (2006). See also Dillingham v. State , 275 Ga. 665, 667 (2), 571 S.E.2d 777 (2002) (holding no abuse of discretion in denying continuance where "[t]here was no indication made to the trial court that the witness could be located if an additional continuance was granted").

2. Harris has not shown ineffective assistance of counsel.

(a) Harris failed to show any prejudice as to two ineffectiveness claims arising from his trial counsel's witness preparations.

Harris argues that his trial counsel provided ineffective assistance by not viewing the videos of Martin's and Favors's police interviews and by failing to prepare for Favors's testimony....