MORRISON v. THE STATE OF GEORGIA

Viewed in the light most favorable to the verdict, the evidence shows

that Morrison and Byrd were involved romantically and lived together in an

1 Byrd was killed on July 10, 2008. On August 27, 2010, a grand jury indicted Morrison and charged him with malice murder, felony murder, aggravated assault, and unlawful possession of a firearm during the commission of a felony. Morrison’s trial began on April 8, 2013, and the jury returned its verdict on April 11, finding Morrison guilty on all counts. On the day the verdict was announced, Morrison was sentenced to imprisonment for life for malice murder and a consecutive term of imprisonment for five years for unlawful possession of a firearm during the commission of a felony. The felony murder was vacated by operation of law, and the aggravated assault merged with the malice murder. See Malcolm v. State, 263 Ga. 369, 371-374 (4), (5) (434 SE2d 479) (1993). Morrison timely filed a motion for new trial on May 2, 2013, and he amended it on March 2, 2015. The trial court denied his motion on June 17, 2015, and Morrison timely filed a notice of appeal on July 14, 2015. His appeal was docketed in this Court for the September 2016 term and submitted for decision on the briefs.

apartment in southwest Atlanta. In the early morning hours of July 10, 2008,

they went to a nightclub, where they argued. Their argument escalated to a

physical struggle, security personnel intervened, and Morrison was escorted out

of the nightclub. Byrd told security personnel — who described Byrd as “upset”

and “emotional” — that she did not want to go home with Morrison. If she did,

she explained, the fighting would “start all over again.” Byrd nevertheless

returned to their apartment at some point on the morning of July 10, and around

4:30 a.m., a neighbor called 911 to report a shooting. When law enforcement

officers arrived, they found Byrd’s body on the bed. She had been shot in the

back of her head with a shotgun at close range.

Morrison gave a statement to officers in which he claimed that he

informed Byrd at the club that he was ending their relationship, and he said that

Byrd became angry. He claimed that Byrd was awaiting him with a shotgun

when he returned to their apartment, that she repeatedly pulled the trigger

(apparently unaware that the safety was engaged), that he attempted to gain

control of the shotgun, and that the gun accidentally discharged while it was

“solely in her hand.”

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Morrison now claims that no rational jury could have found beyond a

reasonable doubt that the killing of Byrd was murder, not an accident. But

“questions as to the reasonableness of hypotheses other than the guilt of the

defendant are generally for the jury to decide.” Lowe v. State, 295 Ga. 623, 625

(1) (759 SE2d 841) (2014). Here, especially considering that Morrison’s own

self-serving statement was the only evidence that Byrd’s death was accidental,

and considering as well that his hypothesis of accidental death was not

consistent with the forensic evidence,2 we conclude that the evidence authorized

the jury to find beyond a reasonable doubt that Morrison was guilty of murder

and unlawful possession of a firearm during the commission of a felony. See

Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Morrison claims that he was denied the effective assistance of counsel

because his lawyer failed to pursue an alternative defense of justification and

because the lawyer failed to object when the State offered hearsay evidence. To

prevail on a claim of ineffective assistance, Morrison must prove both that the

2 Among other things, the autopsy and crime scene evidence showed that Byrd was shot in the back of her head and from the left side. That evidence contradicted Morrison’s claim that the barrel was pointing upward and toward Byrd’s face when the gun fired accidentally. 3

performance of his lawyer was deficient and that he was prejudiced by this

deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104

SCt 2052, 80 LE2d 674) (1984). To prove that the performance of his lawyer

was deficient, Morrison must show that the lawyer performed his duties at trial

in an objectively unreasonable way, considering all the circumstances, and in the

light of prevailing professional norms. Id. at 687-688 (III) (A). See also

Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SCt 2574, 91 LE2d

305) (1986). And to prove that he was prejudiced by the performance of his

lawyer, Morrison must show “a reasonable probability that, but for counsel’s

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). See also Williams v. Taylor,

529 U. S. 362, 391 (III) (120 SCt 1495, 146 LE2d 389) (2000). This burden is

a heavy one, see Kimmelman, 477 U. S. at 382 (II) (C), and we conclude that

Morrison has failed to carry it.

First, Morrison asserts that his trial lawyer should have pursued a defense

of justification as an alternative to accident. See Turner v. State, 262 Ga. 359,

360 (2) (b) (418 SE2d 52) (1992) (“the facts of a case will, at times, present a

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situation where a party who is armed with a weapon contends that while he was

defending himself from another party, his weapon accidentally discharged and

killed that other party”) (footnote omitted). But in his statement to investigating

officers, Morrison never said that he accidentally shot Byrd while he was in the

process of defending himself. Instead, he claimed that he did not shoot Byrd at

all (whether accidentally or intentionally), and he asserted that she accidentally

shot herself while he was trying to get the gun away from her (but while the gun

remained “solely in her hand”). Morrison’s lawyer made a strategic decision to

argue to the jury that the statement was truthful and that Morrison did not shoot

Byrd in self-defense or otherwise. Morrison’s statement to the police did not

support a justification defense, and the decision to instead pursue only an

accident defense does not establish deficient performance. See Stinchcomb v.

State, 280 Ga. 170, 174 (5) (626 SE2d 88) (2006) (trial counsel’s performance

was not deficient for failing to pursue a defense that “was not adjusted to the

evidence of the case”).

Second, Morrison claims that his lawyer performed deficiently when he

failed to object to the testimony of a nightclub security guard, who testified that

Byrd said that she did not want to go back to the home that she shared with

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Morrison. To begin, Morrison has failed to show that a hearsay objection

ultimately would have been sustained, especially considering that the State —

if an objection had been made — might well have been able to lay a foundation

to establish that the statement nevertheless was admissible under an exception

to the hearsay rule. See, e.g., OCGA § 24-8-803 (1) (present-sense impression

of declarant) and (3) (existing mental, emotional, or physical condition of

declarant). At the hearing on his motion for new trial, Morrison did not recall

the guard as a witness to show that the State would have been unable at trial to

lay a foundation for a hearsay exception. More important, Morrison’s lawyer

explained at the hearing that he chose not to object to the testimony at issue

because he thought it supported Morrison’s defense. The testimony showed that

Byrd was angry and emotional at the nightclub, and in that respect, it

corroborated Morrison’s statement that he had broken up with Byrd at the

nightclub. It also suggested that she was likely to arm herself in preparation for

an altercation with Morrison upon her return to their apartment.