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Docket Number

S00A0884.

Advocates

Billy C. Mathis, Jr., Mathis, Cannon Cormack, LLP, Albany, GA, Caroline Ann Cormack, Mathis, Cannon Cormack, LLP, Albany, GA, Attorneys for Appellant. Kenneth Bryant Hodges, III, D.A., Albany, GA, Bradford R. Pierce, A.D.A., Albany, GA, Hon. Thurbert E. Baker, A.G., Department of Law Atlanta, GA, Adam Marshall Hames, A.A.G., Department of Law, Atlanta, GA, Attorneys for Appellee.

Judges

Robert Benham

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Smart Summary

Case Summary: WARE v. THE STATE, S00A0884 (Supreme Court of Georgia, Oct. 23, 2000)

Factual and Procedural Background

Vincent Ware shot and killed his uncle and legal guardian, Roy Martin. Ware's defense at trial was justification based on battered person syndrome. During Ware's testimony, the witness hired by trial counsel to provide expert support for that defense discounted the validity of the syndrome. The jury found Ware guilty of malice murder and possession of a firearm during the commission of a crime. The trial court sentenced Ware to life imprisonment for murder and a consecutive five-year term for the firearm possession charge.

Procedurally: the crime occurred on January 8, 1998; Ware was indicted on March 19, 1998; trial commenced September 21, 1998 and concluded September 24, 1998 with convictions. Ware filed a motion for new trial (filed October 15, 1998; amended June 18, 1999), which was heard June 23, 1999 and denied July 2, 1999. A motion for out-of-time appeal was granted January 18, 2000; notice of appeal filed January 21, 2000; the appeal was docketed in this Court February 15, 2000 and submitted on the briefs.

Legal Issues Presented

Whether the evidence presented at trial was sufficient to support Ware's convictions beyond a reasonable doubt.
Whether testimony about Ware's disciplinary problems (offered by the State) improperly placed Ware's character in issue and was therefore inadmissible.
Whether Ware was denied effective assistance of counsel because trial counsel failed to verify the credentials of the expert witness retained to support the battered person syndrome defense.
Whether the trial court erred in admitting a note written by Ware and a videotape of the crime scene that Ware contends were not disclosed in compliance with reciprocal discovery statutes (OCGA § 17-16-1 et seq.).

Arguments of the Parties

Appellant's (Ware's) Arguments

The testimony from witnesses concerning Ware's disciplinary problems improperly put his character in issue and should have been excluded.
Trial counsel was ineffective for failing to check the credentials of the person retained to provide expert testimony supporting the battered person syndrome justification; this allegedly prejudiced Ware's defense.
The State failed to disclose, in a timely fashion, a note written by Ware and a videotape of the crime scene made with Ware's participation, in violation of reciprocal discovery rules; admission of that evidence prejudiced his defense.

Appellee's (State's) Position

The State presented testimony (from Martin's girlfriend, his brother, and Ware's mother) that Ware was living with Martin because of disciplinary problems at school and at home; this evidence was relevant to Ware's presence in Martin's home and to motive.
Regarding discovery, the note was provided to trial counsel the day before trial and the videotape was disclosed on the morning of trial; the trial court permitted counsel to review the videotape before trial, and the State argues that this remedial step was sufficient under the circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L.Ed.2d 560) (1979)	Standard for sufficiency of the evidence—whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.	The Court held the evidence at trial was sufficient under the Jackson standard to support Ware's convictions.
Pugh v. State, 260 Ga. 874 (1) (401 S.E.2d 270) (1991), overruled on other grounds, Smith v. State, 268 Ga. 196, 199 (486 S.E.2d 819) (1997)	Georgia authority relevant to the sufficiency inquiry cited alongside Jackson.	Cited in support of the Court's conclusion that the evidence was sufficient to sustain the convictions.
Smith v. State, 268 Ga. 196, 199 (486 S.E.2d 819) (1997)	Noted as having overruled Pugh on other grounds.	Referenced parenthetically to indicate Pugh was overruled on other grounds; not used as the primary basis for decision.
Johnson v. State, 260 Ga. 457 (2) (396 S.E.2d 888) (1990)	Principle that evidence relevant to an issue is not rendered inadmissible merely because it incidentally places a defendant's character in issue.	Applied to conclude that testimony about Ware's disciplinary problems was admissible because it was relevant to his presence in the uncle's home and to motive.
Gosdin v. State, 272 Ga. 205 (4) (528 S.E.2d 230) (2000)	Context: even if counsel's performance was deficient, defendant must show prejudice to prevail on ineffective-assistance claim.	Used as an analogous situation; Court held that, even assuming deficient performance, Ware could not show prejudice.
Goodwin v. Cruz-Padillo, 265 Ga. 614, 624 (458 S.E.2d 623) (1995)	Requirement that a defendant make an affirmative showing that counsel's failure would have affected the outcome to establish prejudice from counsel's omissions.	Applied to hold Ware failed to make the required affirmative showing that counsel's failure to check the expert's credentials affected the trial outcome.
Madge v. State, 245 Ga. App. 848 (539 S.E.2d 231) (2000) (Case No. A00A1586, decided September 11, 2000)	Principle that absent a proffer of what an expert's testimony would have been, a defendant cannot show a reasonable probability the outcome would have been different.	Applied to find Ware's post-conviction counsel failed to proffer expert testimony at the new-trial hearing, so Ware could not show a reasonable probability of a different result.
Felder v. State, 270 Ga. 641 (6) (514 S.E.2d 416) (1999)	Permissible remedial responses to the State's failure to comply with discovery; evidence is inadmissible only if defendant shows both prejudice and bad faith.	Applied to uphold the trial court's admission of Ware's note and the videotape after allowing counsel an opportunity to inspect them, since Ware showed neither prejudice nor bad faith.

Court's Reasoning and Analysis

The Court addressed each issue sequentially:

Sufficiency of the evidence. Citing Jackson v. Virginia and Pugh v. State, the Court concluded that the evidence presented at trial was sufficient to allow a rational trier of fact to find Ware guilty beyond a reasonable doubt of malice murder and possession of a firearm during the commission of a crime.
Admissibility of testimony regarding disciplinary problems. The Court observed the State's theory that Ware lived with his uncle because of disciplinary problems and that those problems strained the relationship and culminated in the killing. Even without deciding whether such testimony places character in issue, the Court held the testimony was relevant to presence in the home and motive and therefore admissible, citing Johnson v. State for the principle that relevant evidence is not rendered inadmissible merely because it incidentally places character in issue.
Ineffective assistance of counsel. Ware argued counsel failed to check the credentials of the retained expert. The Court assumed, arguendo, that counsel's performance might have been deficient but relied on precedent (Gosdin, Goodwin) requiring a showing of prejudice. Because Ware's post-conviction counsel made no proffer at the new-trial hearing of what an expert's testimony would have been, the Court found Ware could not demonstrate a reasonable probability that the outcome would have been different. The Court applied Madge to emphasize that, absent a proffer of the expert's expected testimony, prejudice cannot be shown.
Reciprocal discovery nondisclosure. Ware contended the State failed to disclose a note and a videotape in accordance with OCGA § 17-16-1 et seq. The Court noted the note was provided the day before trial and the videotape was made known on the morning of trial; the trial court permitted counsel to inspect the videotape before trial began. Citing Felder, the Court explained that allowing inspection is a permissible response to discovery failure and that evidence is excluded only if both prejudice and bad faith are shown. Because Ware did not show either prejudice or bad faith, admission of the evidence was proper.

Holding and Implications

Judgment affirmed. The Supreme Court of Georgia affirmed the trial court's judgment upholding Ware's convictions and sentences. All the Justices concurred.

Implications: The direct consequence is that Ware's convictions (malice murder and possession of a firearm during the commission of a crime) and the imposed sentences (life imprisonment plus a consecutive five-year term) remain affirmed. The opinion resolves the specific claims raised—sufficiency, admissibility of certain testimony, ineffective assistance for failure to verify an expert's credentials absent a proffer, and late disclosure remedied by permitting inspection—and does not announce a new legal rule beyond applying established precedent.

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WARE v. THE STATE

BENHAM, Chief Justice.

This appeal is from Vincent Ware's convictions for murder and possession of a firearm during the commission of a crime. Ware admittedly shot and killed his uncle and legal guardian, Roy Martin. His defense was justification based on battered person syndrome. During his testimony, the person hired by trial counsel to support the defense with expert testimony discounted the validity of the syndrome. The jury found Ware guilty and the trial court denied his motion for new trial.

The crime occurred on January 8, 1998, and Ware was indicted on March 19, 1998, for malice murder and possession of a firearm during the commission of a crime. His trial, commenced on September 21, 1998, concluded on September 24 with his conviction on both counts. The trial court sentenced Ware to life imprisonment for the murder and to a consecutive term of five years for the firearm possession charge. Ware's motion for new trial, filed October 15, 1998, and amended June 18, 1999, was heard on June 23 of that year and was denied on July 2, 1999. A motion for out-of-time appeal filed on January 12, 2000, was granted on January 18, 2000, and Ware's notice of appeal was filed on January 21, 2000. The appeal was docketed in this Court on February 15, 2000, and was submitted for decision on the briefs.

1. The evidence adduced at trial was sufficient to authorize a rational trier of fact to find Ware guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307 ( 99 S. Ct. 2781, 61 L.Ed.2d 560) (1979); Pugh v. State, 260 Ga. 874 (1) ( 401 S.E.2d 270) (1991), overruled on other grounds, Smith v. State, 268 Ga. 196, 199 ( 486 S.E.2d 819) (1997).

2. The State presented testimony from Martin's girlfriend, his brother, and Ware's mother to establish that Ware was living with Martin because he had disciplinary problems at school and at home. Ware complains that the testimony improperly put his character in issue and should have been excluded.

Without deciding whether testimony regarding disciplinary problems in school places a defendant's character in issue, we conclude that the admission of the testimony was not error. The State's theory of the case was that Ware was committed to his uncle's care by his mother because of disciplinary problems at school and at home, and that the problems continued and strained the relationship between Ware and his uncle, culminating in the killing. Thus, testimony concerning Ware's problems with discipline were relevant to his presence in his uncle's home and to his motive for killing his uncle. "Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant's character in issue. [Cit.]" Johnson v. State, 260 Ga. 457 (2) ( 396 S.E.2d 888) (1990).

3. Ware enumerates as error the trial court's denial of his motion for new trial, in which he contended he was denied effective assistance of counsel at trial. Ware bases his claim on counsel's failure to check the credentials of the witness she engaged to present expert testimony. However, as was the situation in Gosdin v. State, 272 Ga. 205 (4) ( 528 S.E.2d 230) (2000), even if it could be said that the performance of trial counsel was deficient, Ware cannot demonstrate he was prejudiced. To establish the prejudicial effect of counsel's failure to present certain evidence, one "is required to make an affirmative showing that specifically demonstrates how counsel's failure would have affected the outcome of [the] case." Goodwin v. Cruz-Padillo, 265 Ga. 614, 624 ( 458 S.E.2d 623) (1995). Because Ware's post-conviction counsel failed at the hearing on the motion for new trial to make any proffer of expert testimony supporting the justification defense, Ware cannot show there is a reasonable probability the results of the proceedings would have been different. Id. at 24. "Absent a proffer of what the testimony of [an] expert would have been at trial, [a defendant] cannot show that there is a reasonable probability that the outcome of the trial would have been different had . . . counsel taken the suggested course." Madge v. State, 245 Ga. App. 848) ( 539 S.E.2d 231)(2000) (Case No. A00A1586, decided September 11, 2000). Accordingly, we are constrained to hold that Ware has not shown on appeal that the trial court's denial of the motion for new trial on the ground of ineffective assistance of counsel was clearly erroneous.

4. Finally, although he alleges no bad faith on the part of the prosecution, and suggests no particular prejudice to his defense, Ware argues that the trial court erred in admitting evidence which Ware contends was not made known to the defense in accordance with the reciprocal discovery provisions of OCGA § 17-16-1 et seq. The challenged evidence consisted of a note written by Ware and a videotape of the crime scene which was made with Ware's participation. The note was provided to trial counsel the day before trial, and the videotape was made known to trial counsel by the State on the morning of trial. When Ware raised the issue of nondisclosure after jury selection, the trial court gave trial counsel an opportunity to review the videotape before trial began.

"This is a permissible response to the State's failure to comply with criminal discovery provisions. [Cit.] Moreover, the evidence would be inadmissible only if [Ware] could show both prejudice and bad faith. [Cits.] Because he showed neither, the trial court properly admitted the evidence after allowing his attorney the opportunity to inspect it."

Felder v. State, 270 Ga. 641 (6) ( 514 S.E.2d 416) (1999).

Judgment affirmed. All the Justices concur.

DECIDED OCTOBER 23, 2000.

WARE v. STATE