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: August 21, 2023
S23A0628. JACKSON v. THE STATE.
PETERSON, Presiding Justice.
Joseph Jackson appeals his malice murder conviction for the
stabbing death of Claudine Hargrove.1 Jackson argues that (1) the
trial court erred in failing to take curative action after the prosecutor
commented on his post-arrest silence by questioning him about why
he waited until trial to assert that he acted in self-defense; (2) trial
counsel was ineffective for failing to move for a mistrial after this
questioning; and (3) the cumulative harm from these errors
1 The crime occurred on the night of August 10, 2018. In October 2018, a
Gwinnett County grand jury indicted Jackson and charged him with malice
murder, felony murder, and aggravated assault. After a jury trial in April 2022,
the jury found Jackson guilty on all counts. He was sentenced to life without
the possibility of parole on the malice murder count, and the remaining counts
were vacated by operation of law or merged for sentencing purposes. Jackson
timely filed a motion for new trial. The trial court denied the motion in January
2023, and Jackson timely filed a notice of appeal. Jackson’s appeal was
docketed to this Court’s April 2023 Term and submitted for a decision on the
briefs.
warrants a new trial. Given the overwhelming evidence of guilt, we
conclude that any error by the trial court in failing to take some
corrective action was harmless, trial counsel was not deficient in
failing to move for a mistrial because such a motion would have been
futile, and there were not multiple errors to assess cumulatively.
Therefore, we affirm.
The trial evidence showed the following. In August 2018,
Jackson and Hargrove lived together at an extended-stay hotel in
Gwinnett County. Jackson’s father and brother were also staying at
the same hotel but in a different room.
On the night of August 10, Jocelyn Walker, who was staying in
a room next to Jackson and Hargrove, heard a man and a woman
arguing in Jackson and Hargrove’s room. Walker testified that she
initially heard “fussing” but soon heard what seemed like furniture
moving and “pounding” and “kicking” on the walls. Walker could not
hear what the man was saying, but she heard the woman say
repeatedly, “I’m not lying.” Walker called security, saying, “This is
not a fight . . . I think she’s getting beat down.” As she waited for
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security to arrive, Walker heard the woman next door say, “Oh, no;
oh, my God, no; oh, my God.”
When a security guard arrived, he was directed to Jackson and
Hargrove’s room. He knocked on the door and stayed there for about
a minute. Walker heard the security guard talking to someone. The
surveillance video from the hotel does not show the door ever
opening while the security guard was there. Walker later looked out
her window and saw a man with a dripping towel wrapped around
his left hand.
At some point that night, Jackson’s father went to Hargrove’s
room because security informed him that there had been complaints
of an argument coming from that room. Jackson left the room,
quickly shutting the door behind him, and walked with his father to
his father’s room, at which point Jackson’s father noticed that
Jackson’s hand was bleeding. Jackson’s father grabbed a towel and
asked Jackson what happened, but Jackson refused to talk about it.
Jackson called his brother and said he was bleeding from several
injuries to his hands, but Jackson did not mention how he sustained
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those injuries or that Hargrove had been injured in any way.
Jackson called 911 for his bleeding hand. A responding medic
noticed severe lacerations on Jackson’s hands that Jackson claimed
were sustained while doing a magic trick with a knife. A police
officer arrived shortly thereafter and found Jackson in an
ambulance with his hands wrapped with a bandage soaked with
blood. The police officer asked Jackson what happened, and he
responded that he had cut himself “doing knife tricks” and denied
that he had been attacked. Jackson provided no other information
and was transported to a hospital. There, he told medical providers
that he was injured while doing a magic trick.
While Jackson was at the hospital, his brother asked security
to check Hargrove’s room because he was still concerned about
Jackson’s phone call and wanted to know what happened at the
hotel. No one responded to knocks on the door, so security opened
the door, went inside the room, and found Hargrove on the floor.
Security called 911, and police found Hargrove’s dead body on the
floor next to the bed and a knife blade under her body. The blade
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was about 7.5 inches long, was bent, and was covered in blood. The
handle was located on a nearby table.
After Hargrove’s dead body was found, a detective interviewed
Jackson at the hospital. Other than the injuries to Jackson’s hands,
the detective did not notice any other injuries to Jackson, and
Jackson never reported any. After asking some background
questions and getting more detailed information about the claimed
knife trick, the detective asked Jackson whether anyone else was
with him at the time he was injured. Jackson said he was alone in
his room at the time. The detective informed Jackson that Hargrove
had “a cut on her” and asked Jackson if he knew anything about
it.Jackson began asking questions about Hargrove’s injury
suggesting that he did not know anything about it, at which point
the detective read Jackson his Miranda 2 rights. After asking more
questions about Hargrove and being informed that she had died,
Jackson said he did not want to speak any more and then invoked
his right to counsel, ending the interview.
2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
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Hargrove’s autopsy revealed 13 different cut and stab wounds,
with many injuries to the left side of her body, including her face,
neck, and chest. One stab wound severed her carotid artery and was
so large that her spine was visible. Another stab wound completely
severed Hargrove’s jugular vein, and another reached her heart.
These wounds would have caused massive blood loss and death
within minutes. Hargrove also sustained wounds to her hand and
arm that were consistent with defensive wounds and had fractures
to her nose and jawbone that were determined to have occurred
around the time of her death. The medical examiner determined
that the cause of death was sharp-force injuries to the neck and
chest, with other significant conditions being sharp-force injuries to
the head and arm and blunt-force trauma of the head and face.
Jackson testified at his trial and claimed that he acted in selfdefense. Jackson said that Hargrove had been drinking, became
upset by something he said about her children, grabbed a knife, and
swung it at him. Jackson stated that he grabbed the knife blade,
causing the cut to his hand, and that a struggle ensued, during
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which time he began “passing out.” Jackson said he punched
Hargrove a couple of times, gained control of the knife, and began
swinging “aimlessly” at her. On cross-examination, Jackson
admitted that he lied to everyone he talked to following the stabbing
when he reported that he was injured doing a knife trick. Jackson
also “guess[ed]” that he had enough strength to break bones in
Hargrove’s face despite feeling like he was about to pass out. Later,
the following exchange occurred:
PROSECUTOR: And you would admit, Mr. Jackson, that
in four years [from the time of the crime to the time of the
trial], this is the first time you have told anybody that this
was self-defense?
JACKSON: That it was — I never talked about it to
anybody except my lawyer.
PROSECUTOR: But no one ever called me, right?
JACKSON: Huh?
PROSECUTOR: You didn’t call me. Your family never
contacted me. Nobody ever contacted me.
At this point, trial counsel objected, arguing that Jackson had no
obligation to call the prosecutor when he was represented by
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counsel. Counsel also argued that the question was overly
argumentative because Jackson had answered the question. “It’s his
constitutional right,” counsel added. The prosecutor agreed to “move
on,” leading to the following inquiry.
PROSECUTOR: But you would agree, Mr. Jackson, that
you have never told anyone from the State back then, that
you killed [Hargrove] in self-defense?
JACKSON: No.
PROSECUTOR: All because you didn’t want to deal with
it, right?
JACKSON: Well, I just didn’t trust to talk to anybody
except for my lawyer.
PROSECUTOR: So you waited until now? Now’s when
you decided to tell everybody about self-defense?
JACKSON: I just wanted — I wanted to — I mean, I just
— I don’t — I guess now was — I mean when I talked —
now is not the first time, like here, right this second. But
talking to my lawyer, it was probably the first time.
1. Jackson argues that the prosecutor improperly “questioned
[him] about this post-arrest silence” in the above-quoted crossexamination. Jackson argues that, as a result of the prosecutor’s
remarks, the trial court had a duty under OCGA § 17-8-75 to rebuke
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the prosecutor or take some other curative action, such as declaring
a mistrial. Jackson fails to show that any error by the trial court
entitles him to relief.
OCGA § 17-8-75 provides:
Where counsel in the hearing of the jury make statements
of prejudicial matters which are not in evidence, it is the
duty of the court to interpose and prevent the same. On
objection made, the court shall also rebuke the counsel
and by all needful and proper instructions to the jury
endeavor to remove the improper impression from their
minds; or, in his discretion, he may order a mistrial if the
prosecuting attorney is the offender.
Even assuming that Jackson’s objection about his
“constitutional right” 3 was sufficient to preserve the issue, not all of
the prosecutor’s questions or remarks were improper. Before he was
arrested, Jackson did not remain silent, but talked to the police and
others. And the prosecutor was entitled to point out inconsistencies
between Jackson’s trial testimony that he acted in self-defense and
his pre-arrest statements that he sustained his injuries while doing
3 Counsel’s objection did not identify which constitutional right he was
referring to, including whether it was one based on the United States
Constitution or the Georgia Constitution.
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magic tricks. See Johnson v. State, 292 Ga. 785, 788 (3) (741 SE2d
627) (2013) (permissible for prosecutor to cross-examine testifying
defendant about his failure to mention his fear for his safety to police
or others when defendant had talked to police without having
invoked his right to remain silent); see also Bradford v. State, 299
Ga. 880, 887 (7) (792 SE2d 684) (2016) (“[T]he prosecutor’s line of
questioning permissibly explored the inconsistencies between
appellant’s trial testimony and his prior statements made to
civilians on the scene and the police soon after the shooting.”)
On the other hand, to the extent that some of the prosecutor’s
questions regarded Jackson’s failure to come forward after invoking
his constitutional right to counsel, this was improper. See Doyle v.
Ohio, 426 U.S. 610, 619 (96 SCt 2240, 49 LE2d 91) (1976) (“We hold
that the use [even] for impeachment purposes of petitioners’ silence,
at the time of arrest and after receiving Miranda warnings, violated
the Due Process Clause of the Fourteenth Amendment.”). But even
assuming that the court erred in failing to take any remedial action,
such assumed error was harmless. See O’Neal v. State, 288 Ga. 219,
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223 (702 SE2d 288) (2010) (trial court’s OCGA § 17-8-75 error is
reviewed for harmlessness).
Although the prosecutor’s questioning may have touched on
Jackson’s constitutional right to remain silent, Jackson’s argument
is not directly constitutional in nature; instead, he argues that the
trial court failed to meet its statutory duty under OCGA § 17-8-75.
And we have reviewed such alleged errors under the
nonconstitutional harmless test, under which an error is “harmless
if the State shows that it is highly probable that the error did not
contribute to the verdict, an inquiry that involves consideration of
the other evidence heard by the jury.” State v. Lane, 308 Ga. 10, 21
(4) (838 SE2d 808) (2020); see also Meadows v. State, 316 Ga. 22, 28
(4) (c) (885 SE2d 780) (2023) (applying nonconstitutional
harmlessness test to trial court’s failure to take curative action
under OCGA 17-8-75 after the prosecutor commented on defendant’s
right to remain silent).
Here, in conducting that review, we consider only the harm
from comments that touched on Jackson’s failure to come forward
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following the assertion of his constitutional right, as some of the
other questioning was proper. Considering all of the evidence, as a
reasonable juror would, we are convinced the error was harmless.
The evidence of Jackson’s guilt was overwhelming. The trial
evidence pointed only to Jackson as the culprit, and Jackson
admitted that he stabbed Hargrove. Although Jackson claimed at
trial that he acted in self-defense, the claim was not credible.
Jackson’s self-defense claim hinged on his own trial testimony, but
that testimony was severely impeached by his prior inconsistent
statements. Jackson told various people prior to his arrest that the
injuries to his hands were caused by doing knife tricks, not as a
result of stabbing Hargrove repeatedly, and the jury was free to use
these prior inconsistent statements not only to find him not credible,
but also as substantive evidence of guilt. See Esprit v. State, 305 Ga.
429, 437 (2) (c) (826 SE2d 7) (2019) (under the current Evidence
Code, “a prior inconsistent statement of a witness who takes the
stand and is subject to cross-examination is admissible as
substantive evidence, and is not limited in value only to
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impeachment purposes” (citation and punctuation omitted)).
Moreover, even if Hargrove was the initial aggressor as Jackson
claimed, a jury could easily reject his self-defense claim given that
Jackson brutally and repeated stabbed Hargrove and he had no
visible injuries, other than those to his hands, following that
onslaught. See Wynn v. State, 313 Ga. 827, 839 (5) (874 SE2d 42)
(2022) (“[A defendant who uses excessive force in response to the
victim’s use of force is not justified.” (citation and punctuation
omitted)). Given these circumstances, even if some of the
prosecutor’s questioning was improper, it was highly probable that
it did not make any difference to the outcome of the case, and so any
error was harmless.
2. Jackson next argues that trial counsel was ineffective for
failing to move for a mistrial based on the prosecutor’s allegedly
improper questioning above. We disagree.
To succeed on his claim, Jackson must establish that his
counsel’s performance was constitutionally deficient and that he
was prejudiced by this deficient performance. See Strickland v.
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Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
To show deficient performance, Jackson’s must “overcome the strong
presumption that counsel’s performance fell within a wide range of
reasonable professional conduct, and that counsel’s decisions were
made in the exercise of reasonable professional judgment.” Mims v.
State, 304 Ga. 851, 855 (2) (823 SE2d 325) (2019) (citation and
punctuation omitted). “[D]ecisions regarding trial tactics and
strategy may form the basis for an ineffectiveness claim only if they
were so patently unreasonable that no competent attorney would
have followed such a course.” Richards v. State, 306 Ga. 779, 781 (2)
(833 SE2d 96) (2019) (citation and punctuation omitted). To
demonstrate prejudice, Jackson must establish “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.” Mims, 304 Ga. at 855 (2) (citation and punctuation
omitted). A defendant must meet both prongs of the Strickland test;
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otherwise, his ineffective assistance claim fails. See Smith v. State,
296 Ga. 731, 733 (2) (770 SE2d 610) (2015).
“When prejudicial matter is improperly placed before the jury,
a mistrial is appropriate if it is essential to the preservation of the
defendant’s right to a fair trial.” Lynn v. State, 310 Ga. 608, 612 (3)
(852 SE2d 843) (2020). A trial court has broad discretion to grant a
mistrial and may consider less drastic alternatives. See Brown v.
State, 285 Ga. 324, 325 (1) (676 SE2d 221) (2009). A claim based on
the failure to move for a mistrial fails if a defendant cannot show
that such a motion would have been granted. See Lynn, 310 Ga. at
613 (4) (a).
Jackson has not shown that his counsel’s performance was
deficient. As discussed above, the evidence of guilt was
overwhelming, and his claim of self-defense was dubious at best.
Although we have assumed without deciding that the prosecutor
made an improper reference to Jackson’s post-arrest silence, this
came after the prosecutor presented evidence revealing the brutal
attack on Hargrove and after Jackson admitted on cross15
examination that, prior to his arrest, he had lied to police and others
about Hargrove’s death and the cause of his injuries. The prosecutor
also permissibly commented on his pre-arrest statements, noting
that he never once suggested before his arrest that he had stabbed
Hargrove in self-defense. Thus, although a comment on Jackson’s
post-arrest silence would have been unfairly prejudicial, any such
comment had very little, if any, effect on Jackson’s defense given the
overwhelming evidence of guilt, his admission to stabbing Hargrove,
and the significant evidence undercutting his justification defense.
These circumstances do not show that a mistrial was required to
preserve Jackson’s right to a fair trial, so trial counsel was not
deficient for failing to request one. See Lynn, 310 Ga. at 613 (4) (a);
see also Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467)
(2014) (“[T]he failure to make a meritless motion or objection does
not provide a basis upon which to find ineffective assistance of
counsel.”); Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557)
(2008) (mistrial required when improper comment on defendant’s
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exercise of his right to remain silent “substantially prejudice[s] the
defendant in the eyes of the jury”). Accordingly, this claim fails.
3. And because there are not multiple errors to aggregate,
Jackson’s cumulative prejudice claim also fails. See State v. Lane,
308 Ga. 10, 21 (4) (838 SE2d 808) (2020) (cumulative error claim
requires that the defendant first show that “at least two errors were
committed in the course of the trial” (citation and punctuation
omitted)).
Judgment affirmed. All the Justices concur.
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