NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: January 18, 2023
S22A1117. WRIGHT v. THE STATE.
BOGGS, Chief Justice.
Appellant Walter Russell Wright challenges his conviction for
felony murder in connection with the shooting death of Oletha
Brady. Appellant contends that the evidence was legally insufficient
to support his conviction, that the trial court committed plain error
in instructing the jury on good character evidence, and that he was
denied the effective assistance of counsel when counsel failed to
object to that instruction. We conclude that the evidence was
sufficient; that the instruction on good character evidence, which
tracked the pattern jury instruction in effect both then and now, was
not erroneous; and that Appellant’s counsel did not perform
deficiently in failing to make a meritless objection to the instruction.
Accordingly, we affirm. 1
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following. On May 13, 2017, at 12:50
a.m., a Coffee County 911 operator received a “hang-up” call and
called the number back; it rang four times before Appellant
answered. Appellant told the operator that Brady shot herself with
his gun and that he did not know how she got it because he wore it
“by his foot.” Sheriff’s deputies responded to Brady’s home within 10
minutes of the 911 call. When Appellant opened the door to Brady’s
home, the deputies saw Brady lying face-up on the living room floor
with a gunshot wound to her torso and a Taurus .38 Special revolver
on the floor near her body. The .38 Special contained four live rounds
1 The crime was committed on May 13, 2017. On August 3, 2017, a Coffee
County grand jury indicted Appellant for malice murder and felony murder
based on aggravated assault with a deadly weapon. At a trial from January 15
to 18, 2019, the jury found him not guilty of malice murder but guilty of felony
murder. On January 30, 2019, the trial court sentenced Appellant to serve life
in prison without the possibility of parole. Appellant filed a motion for new
trial on February 28, 2019, which he amended with new counsel on November
15, 2021. The trial court held an evidentiary hearing on March 18, 2022, and
denied the motion on April 11, 2022. Appellant filed a timely notice of appeal,
and the case was docketed in this Court for the August 2022 term and
submitted for a decision on the briefs.
2
and one fired shell. Appellant told one of the deputies that he and
Brady were having sex on the couch when the gun that was in his
ankle holster “went off.” The deputy observed the empty gun holster
strapped to Appellant’s ankle. Appellant also stated at the scene
that while he and Brady were having sex on the couch, Brady got
his gun and shot herself. A bullet was later recovered from a bloodstained couch cushion.
At trial, a paramedic who arrived at Appellant’s home shortly
after the deputies arrived testified that Brady was wearing a
nightgown and that her body was cold to the touch, her skin was
turning gray, she had no pulse, and she was not breathing. The
paramedic further testified that she had never seen a body that was
cold to the touch and with graying skin within 15 minutes after an
injury had occurred. A GBI forensic firearms examiner testified that
the .38 Special found next to Brady’s body would not fire “without
the trigger being pulled and held to the rear.”
The medical examiner who performed the autopsy on Brady
was admitted as an expert in forensic pathology and testified at trial
3
as follows. The cause of death was a gunshot wound to the torso,
which entered the center of Brady’s chest just below the breastbone
and exited through her back. When the gun was fired, it was
anywhere from a few inches to three feet away from Brady. The
medical examiner concluded that the manner of death was homicide
rather than accident or suicide, based on her experience as a medical
examiner and her examination of multiple gunshot wound cases
involving homicide, accident, and suicide.
After being taken into custody, Appellant waived his rights
under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966), and was interviewed twice by law enforcement officers. The
interviews were video-recorded and played for the jury. According to
Appellant, he and Brady lived next to each other and had been in an
on-and-off relationship for six years, but the relationship had ended.
On the evening of the shooting, Appellant was outside his home
when Brady walked over and invited him to her home. Appellant
went to Brady’s home, and the two began drinking and talking about
Appellant’s relationships with other women. According to Appellant,
4
he was involved with three other women and these other
relationships were “causing issues.”
Appellant then provided three conflicting accounts of Brady’s
death. In one version that he told, Brady wanted to have sex, but he
declined because he was involved with someone else; he then went
to the bathroom; and when he came out, he heard a pop and saw
Brady lying on the living room floor with a gunshot wound. In the
second version, he and Brady were having sex on the couch when
the gun in his ankle holster discharged. In Appellant’s final version,
he was sitting on the floor in the living room taking his shoes off
when he removed the gun from his ankle holster and he saw that
the gun was cocked; he attempted to lower the hammer, but the gun
accidentally discharged; and Brady, who was standing in the
kitchen behind him, was struck by the bullet. Appellant elected not
to testify at trial, but he called three witnesses who testified that he
had a reputation for peacefulness, honesty, and abiding by the law.2
2 OCGA §§ 24-4-404 (a) (1) and 24-4-405 (a) authorize a criminal
defendant to offer evidence of a pertinent trait of character by presenting
testimony as to the defendant’s reputation for that trait.
5
2. Appellant contends, in conclusory terms, that the evidence
at trial failed to prove beyond a reasonable doubt either that he
killed Brady or that he did so with the requisite criminal intent. We
disagree.
Appellant’s sole conviction is for felony murder, which does not
require proof of intent to kill; the State needed only to prove that the
defendant possessed the criminal intent to commit the underlying
felony—here, aggravated assault. See Mathews v. State, 314 Ga.
360, 365 (877 SE2d 188) (2022). When properly viewed in the light
most favorable to the verdicts, the evidence presented at trial and
summarized above was sufficient as a matter of constitutional due
process to authorize a rational jury to find Appellant guilty beyond
a reasonable doubt of felony murder through the commission of
aggravated assault with a deadly weapon. See Jackson v. Virginia,
443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also
Adkins v. State, 314 Ga. 477, 482 (877 SE2d 582) (2022) (holding
that jury was free to reject as unreasonable the defense theory of
suicide where medical examiner testified that injury was not one
6
that typically would have been self-inflicted and that suicide was
unlikely); Mathews, 314 Ga. at 364-365 (stating that “[c]riminal
intent is a question for the jury, and it may be inferred from that
person’s conduct before, during, and after the commission of the
crime” (citation omitted)); Eberhart v. State, 307 Ga. 254, 262 (835
SE2d 192) (2019) (holding that the jury was free to reject a claim of
accident and that whether the acts charged were committed by
accident was a jury question).
3. Acknowledging that the plain error standard of OCGA § 17-8-58 (b) applies because he raised no objection to the trial court’s
jury instruction on good character evidence, Appellant asserts that
the trial court erred in its instruction on good character evidence
because it failed to inform the jury that good character is a
substantive fact that in and of itself may create a reasonable doubt
as to a defendant’s guilt and lead to an acquittal. See OCGA § 17-8-58 (b) (authorizing review of jury instruction for plain error even
though a defendant fails to object at trial and where the defendant
raises the issue on appeal). To establish plain error, Appellant
7
must point to an error that was not affirmatively waived,
the error must have been clear and not open to reasonable
dispute, the error must have affected his substantial
rights, and the error must have seriously affected the
fairness, integrity, or public reputation of judicial
proceedings.
Armstrong v. State, 310 Ga. 598, 605-606 (852 SE2d 824) (2020)
(citation and punctuation omitted). And if an appellant fails to
establish any one of these elements, his plain error claim fails. Id.
at 606.
The trial court instructed the jury as follows:
[Y]ou have heard the evidence of the character of the
defendant for particular traits, more specifically, honesty,
peacefulness, and being law-abiding in an effort to show
the defendant likely acted in keeping with such character
or trait at pertinent times or with reference to issues in
this case. This evidence has been offered in the form of
opinions of other witnesses and their testimony as to the
defendant’s reputation. You shall consider any such
evidence, along with all the other - other evidence in
deciding whether or not you have a reasonable doubt
about the guilt of the defendant.
The trial court’s instruction substantially tracked the language of
the current pattern jury instruction set forth in Georgia Suggested
Pattern Jury Instructions, Vol. II: Criminal Cases § 1.37.10 (4th ed.
8
2007; updated Aug. 2022).3 And we have previously rejected the
contention that this pattern charge is inadequate if it omits the
“substantive fact” language. Jackson v. State, 305 Ga. 614, 620-621
(825 SE2d 188) (2019) (holding that there was no clear error in
giving pattern charge on defendant’s good character without
additional language stating that “good character is a substantive
fact which itself creates reasonable doubt as to the defendant’s
guilt”). Indeed, the year before Appellant’s trial, we held that an
3 The suggested pattern jury instruction states as follows:
You have heard evidence of the (character of the defendant)
(character of the defendant for a particular trait, more specifically
__________ ) in an effort to show that the defendant likely acted in
keeping with such character or trait at pertinent times or with
reference to issues in this case. This evidence has been offered in
the form of (opinion of (an)other witness(es)) (reputation) (specific
instances of conduct of the defendant showing such trait). You
should consider any such evidence along with all the other
evidence in deciding whether or not you have a reasonable doubt
about the guilt of the defendant.
Note: The committee feels the above charge is complete and
adequate for the principle of Good Character. However, in view of
State v. Hobbs, 288 Ga. 551 (2010) (pre-new evidence code), in
order to be safe, consider adding the following: (Good character is
not just a witness credibility issue, nor is it an excuse for crime.
However, you may consider it as weighing on the issue of whether
or not the defendant is guilty of the charges in the indictment.).
Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.37.10
(4th ed. 2007; updated Aug. 2022).
9
instruction substantially similar to the current pattern jury charge
on good character “properly explained” how character evidence
ought to be considered by the jury and that there was no plain error
in giving the pattern charge without including the “substantive fact”
language. Williams v. State, 304 Ga. 455, 458-459 (818 SE2d 653)
(2018). Accordingly, Appellant cannot establish that the alleged
error was clear and not open to reasonable dispute, and thus, his
claim of plain error fails.
4. Finally, Appellant asserts that his trial counsel provided
constitutionally ineffective assistance in failing to object to the trial
court’s instruction on good character evidence. A convicted
defendant who claims that his attorney’s assistance was so defective
as to require reversal of his conviction must prove both that the
attorney’s performance was professionally deficient and that this
deficiency resulted in prejudice to his case. See Strickland v.
Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
To prevail on a claim of ineffective assistance, an appellant must
satisfy both prongs of the Strickland test, and if the appellant’s
10
showing fails as to one prong, this Court need not examine the other
prong. Id. at 697.
Appellant’s trial counsel testified at the motion for new trial
hearing that he did not object to the trial court’s instruction on good
character because he believed it was legally correct. As explained in
Division 3 above, the trial court properly instructed the jury on how
to consider the character evidence, and thus, an objection to the
instruction would have been meritless. And trial counsel does not
perform deficiently by failing to make a meritless objection. See
Martin v. State, 308 Ga. 479, 484 (841 SE2d 667) (2020).
Accordingly, the claim of ineffective assistance of trial counsel fails.
Judgment affirmed. All the Justices concur.
11