FINAL COPY 309 Ga. 557
S20A0966. FINNISSEE v. THE STATE.
MELTON, Chief Justice.
Following a jury trial, Freddie Finnissee, Jr., appeals his
convictions for malice murder and arson in the first degree,
contending that the evidence was insufficient to support the verdict
and that he received constitutionally ineffective assistance of
counsel.1 For the reasons set forth below, we affirm.
1. In the light most favorable to the verdicts, the evidence
presented at trial showed that, on the morning of December 14,
2015, Shamarise Brown was walking toward his home in Lowndes
County and passed his neighbor, Finnissee, walking hurriedly in the
1 On May 27, 2016, Finnissee was indicted for the malice murder of Diane
Calhoun and arson in the first degree. Finnissee was tried November 6-7, 2017, and a jury found Finnissee guilty of both counts. The trial court thereafter sentenced Finnissee to life imprisonment for malice murder and to twenty years for arson in the first degree, to run concurrently. Finnissee filed a motion for new trial on November 9, 2017, and after retaining new counsel, amended the motion on April 15, 2019. The trial court denied the motion for new trial on July 1, 2019. Finnissee timely filed a notice of appeal, and the resulting case, submitted on the briefs, was docketed to the April 2020 term of this Court. opposite direction. When Brown got home, he waited on his porch
for a ride to school, facing the house where Finnissee lived with his
mother, Diane Calhoun. Approximately three minutes after Brown
had seen Finnissee walking away, Brown saw flames through the
window of Finnissee and Calhoun’s house. Brown called 911 to
report the fire around 7:30 a.m., and Finnissee returned home
around 7:45 to 7:50 a.m.
When firefighters arrived, the fire was small, and it was
extinguished quickly. The fire had two points of origin: one was on
top of Calhoun’s body, which was found on the couch in the living
room, and the second was on the mattress in Calhoun’s bedroom.
Damage to the house was minimal because the fire had insufficient
oxygen to spread quickly. Expert testimony indicated that fires with
multiple origins are typically instances of arson.
Upon examination at the scene, Calhoun’s gums and the inside
of her nostrils were clear, indicating that she had stopped breathing
before the fire began. The area of origin of the fire on the couch was
around and on top of Calhoun’s waistline. There were no injuries to Calhoun’s back or damage to the back of her clothing, indicating that
she was on the couch before the fire started.
The GBI medical examiner who autopsied Calhoun on
December 16, 2015, concluded that the cause of Calhoun’s death was
asphyxia due to strangulation. Calhoun had extensive burns, but did
not die from those injuries. Testing for carbon monoxide in
Calhoun’s blood came back negative, and there was no soot in her
airway. These results provided further evidence that Calhoun had
stopped breathing before the fire began. Calhoun also had a soft
tissue hemorrhage to the right side of the back of her head,
indicative of a blunt force impact.
Evidence further showed that, in the days leading up to the
fire, Finnissee and Calhoun had been arguing. On December 8, 2015,
Officer Matthew Francis responded to Calhoun’s residence after
Calhoun called police concerning a dispute with Finnissee regarding
proceeds from the sale of pecans. Officer Francis testified that both
Finnissee and Calhoun were agitated and that Finnissee did not
seem to be “in his right mind.” On December 13, 2015, Nia Blount, who was visiting in the neighborhood, saw Calhoun sitting on her
porch with her head down; a man was sitting beside Calhoun, and
Finnissee was standing in the middle of the road talking loudly and
looking upset.
Later, at some point in early 2016, Steve Major, who was
Calhoun’s godson, met with Finnissee. At that time, Finnissee asked
Major how people could tell if someone had been strangled. Major
then asked Finnissee if he killed Calhoun. (Major had been under
the impression that Calhoun’s boyfriend had killed her.) Finnissee
responded that Calhoun’s boyfriend did not kill her. Instead,
Finnissee admitted that he and Calhoun got into a fight over money
and claimed that Calhoun kept hitting him. Finnissee said that he
then lost control, and the next thing he knew, his mother was dead.
Finnissee said that he then set the house on fire to try to make it
look like she died from smoke inhalation.
On March 22, 2016, Finnissee was interviewed by Lieutenant
Kyle Salter. Salter advised Finnissee of his Miranda rights,2 and
2 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Finnissee agreed to speak with him. Finnissee showed no emotion
over the death of Calhoun. When asked whether he knew anyone
who would harm Calhoun, Finnissee gave conflicting responses, but
ultimately cast aspersions against both Calhoun’s boyfriend and
Brown.
In August 2016, Major was arrested for armed robbery and
aggravated battery and was incarcerated. Major saw Finnissee in
jail, and they discussed Calhoun’s murder once again. Following this
conversation, Finnissee sent Major a message through a go-between.
In the message, Finnissee advised Major to “take the fall for
Finnissee.” In return, Finnissee promised to look out for Major while
he was in prison.
This evidence was sufficient to enable the jury to find Finnissee
guilty beyond a reasonable doubt of the crimes for which he was
convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d
560) (1979). And, though Finnissee now argues that he acted under
provocation and that there was no evidence presented to the jury
upon which malice could be found, he is incorrect. As recited above, the evidence, viewed in the light most favorable to the verdicts,
supported the conclusion that Finnissee had been angry with
Calhoun for some time before the murder, that Finnissee strangled
his mother in their home, and that afterwards, Finnissee attempted
to cover up his crime by burning down the home with Calhoun’s body
inside of it.
2. Finnissee argues that his trial counsel rendered
constitutionally ineffective assistance because he did not request an
instruction on the lesser offense of voluntary manslaughter. We
disagree.
To establish that his trial counsel was constitutionally ineffective, [Finnissee] must prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To show that his lawyer’s performance was deficient, [Finnissee] must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. This is no easy showing, as the law recognizes a “strong presumption” that counsel performed reasonably, and [Finnissee] bears the burden of overcoming this presumption. Id. at 689.
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FINAL COPY 309 Ga. 557
S20A0966. FINNISSEE v. THE STATE.
MELTON, Chief Justice.
Following a jury trial, Freddie Finnissee, Jr., appeals his
convictions for malice murder and arson in the first degree,
contending that the evidence was insufficient to support the verdict
and that he received constitutionally ineffective assistance of
counsel.1 For the reasons set forth below, we affirm.
1. In the light most favorable to the verdicts, the evidence
presented at trial showed that, on the morning of December 14,
2015, Shamarise Brown was walking toward his home in Lowndes
County and passed his neighbor, Finnissee, walking hurriedly in the
1 On May 27, 2016, Finnissee was indicted for the malice murder of Diane
Calhoun and arson in the first degree. Finnissee was tried November 6-7, 2017, and a jury found Finnissee guilty of both counts. The trial court thereafter sentenced Finnissee to life imprisonment for malice murder and to twenty years for arson in the first degree, to run concurrently. Finnissee filed a motion for new trial on November 9, 2017, and after retaining new counsel, amended the motion on April 15, 2019. The trial court denied the motion for new trial on July 1, 2019. Finnissee timely filed a notice of appeal, and the resulting case, submitted on the briefs, was docketed to the April 2020 term of this Court. opposite direction. When Brown got home, he waited on his porch
for a ride to school, facing the house where Finnissee lived with his
mother, Diane Calhoun. Approximately three minutes after Brown
had seen Finnissee walking away, Brown saw flames through the
window of Finnissee and Calhoun’s house. Brown called 911 to
report the fire around 7:30 a.m., and Finnissee returned home
around 7:45 to 7:50 a.m.
When firefighters arrived, the fire was small, and it was
extinguished quickly. The fire had two points of origin: one was on
top of Calhoun’s body, which was found on the couch in the living
room, and the second was on the mattress in Calhoun’s bedroom.
Damage to the house was minimal because the fire had insufficient
oxygen to spread quickly. Expert testimony indicated that fires with
multiple origins are typically instances of arson.
Upon examination at the scene, Calhoun’s gums and the inside
of her nostrils were clear, indicating that she had stopped breathing
before the fire began. The area of origin of the fire on the couch was
around and on top of Calhoun’s waistline. There were no injuries to Calhoun’s back or damage to the back of her clothing, indicating that
she was on the couch before the fire started.
The GBI medical examiner who autopsied Calhoun on
December 16, 2015, concluded that the cause of Calhoun’s death was
asphyxia due to strangulation. Calhoun had extensive burns, but did
not die from those injuries. Testing for carbon monoxide in
Calhoun’s blood came back negative, and there was no soot in her
airway. These results provided further evidence that Calhoun had
stopped breathing before the fire began. Calhoun also had a soft
tissue hemorrhage to the right side of the back of her head,
indicative of a blunt force impact.
Evidence further showed that, in the days leading up to the
fire, Finnissee and Calhoun had been arguing. On December 8, 2015,
Officer Matthew Francis responded to Calhoun’s residence after
Calhoun called police concerning a dispute with Finnissee regarding
proceeds from the sale of pecans. Officer Francis testified that both
Finnissee and Calhoun were agitated and that Finnissee did not
seem to be “in his right mind.” On December 13, 2015, Nia Blount, who was visiting in the neighborhood, saw Calhoun sitting on her
porch with her head down; a man was sitting beside Calhoun, and
Finnissee was standing in the middle of the road talking loudly and
looking upset.
Later, at some point in early 2016, Steve Major, who was
Calhoun’s godson, met with Finnissee. At that time, Finnissee asked
Major how people could tell if someone had been strangled. Major
then asked Finnissee if he killed Calhoun. (Major had been under
the impression that Calhoun’s boyfriend had killed her.) Finnissee
responded that Calhoun’s boyfriend did not kill her. Instead,
Finnissee admitted that he and Calhoun got into a fight over money
and claimed that Calhoun kept hitting him. Finnissee said that he
then lost control, and the next thing he knew, his mother was dead.
Finnissee said that he then set the house on fire to try to make it
look like she died from smoke inhalation.
On March 22, 2016, Finnissee was interviewed by Lieutenant
Kyle Salter. Salter advised Finnissee of his Miranda rights,2 and
2 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Finnissee agreed to speak with him. Finnissee showed no emotion
over the death of Calhoun. When asked whether he knew anyone
who would harm Calhoun, Finnissee gave conflicting responses, but
ultimately cast aspersions against both Calhoun’s boyfriend and
Brown.
In August 2016, Major was arrested for armed robbery and
aggravated battery and was incarcerated. Major saw Finnissee in
jail, and they discussed Calhoun’s murder once again. Following this
conversation, Finnissee sent Major a message through a go-between.
In the message, Finnissee advised Major to “take the fall for
Finnissee.” In return, Finnissee promised to look out for Major while
he was in prison.
This evidence was sufficient to enable the jury to find Finnissee
guilty beyond a reasonable doubt of the crimes for which he was
convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d
560) (1979). And, though Finnissee now argues that he acted under
provocation and that there was no evidence presented to the jury
upon which malice could be found, he is incorrect. As recited above, the evidence, viewed in the light most favorable to the verdicts,
supported the conclusion that Finnissee had been angry with
Calhoun for some time before the murder, that Finnissee strangled
his mother in their home, and that afterwards, Finnissee attempted
to cover up his crime by burning down the home with Calhoun’s body
inside of it.
2. Finnissee argues that his trial counsel rendered
constitutionally ineffective assistance because he did not request an
instruction on the lesser offense of voluntary manslaughter. We
disagree.
To establish that his trial counsel was constitutionally ineffective, [Finnissee] must prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To show that his lawyer’s performance was deficient, [Finnissee] must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. This is no easy showing, as the law recognizes a “strong presumption” that counsel performed reasonably, and [Finnissee] bears the burden of overcoming this presumption. Id. at 689. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. See Humphrey v. Nance, 293 Ga. 189, 192 (744 SE2d 706) (2013). In particular, “decisions 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.” Reed v. State, 294 Ga. 877, 882 (757 SE2d 84) (2014). Even when a defendant has proved that his counsel’s performance was deficient in this constitutional sense, he also must prove prejudice by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. . . . The reviewing court need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” [Id]. at 697.
Davis v. State, 299 Ga. 180, 182-183 (2) (787 SE2d 221) (2016).
Furthermore, “when ‘trial counsel does not testify at the motion for
new trial hearing about the subject, it is extremely difficult to
overcome’ the presumption that his conduct was reasonable.”
(Citation omitted.) Shaw v. State, 292 Ga. 871, 876 (3) (b) (742 SE2d
707) (2013).
In this case, Finnissee did not question trial counsel at the
hearing on his motion for new trial, and he has failed to overcome
the presumption that trial counsel’s choice not to request an instruction on voluntary manslaughter was strategic and
reasonable. We have made clear that
[d]ecisions as to which jury charges will be requested and when they will be requested fall within the realm of trial tactics and strategy. They provide no grounds for [a new trial] unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.
(Citation and punctuation omitted.) Davis v. State, 296 Ga. 126, 131
(3) (765 SE2d 336) (2014). Finnissee argues only that the evidence
supported a verdict of voluntary manslaughter, but he provides no
evidence at all that trial counsel’s choice not to pursue an instruction
on voluntary manslaughter was not a matter of reasonable trial
strategy. See Smith v. State, 301 Ga. 348, 353 (III) (b) (801 SE2d 18)
(2017) (“Pursuit of an ‘all or nothing’ defense [generally] is a
permissible trial strategy.”); Wells v. State, 295 Ga. 161, 166 (2) (b)
(758 SE2d 598) (2014) (“[T]he decision not to request a jury charge
on a lesser included offense in order to pursue an ‘all-or-nothing’
defense is a matter of trial strategy.”) (citation and punctuation
omitted). Moreover, the record appears to undercut Finnissee’s
contention. Prior to trial, the State offered a plea deal to Finnissee
that would have required him to plead guilty to voluntary
manslaughter while the arson count would be nolle prossed.
Finnissee rejected the deal. He stated on the record that he wanted
to go to trial instead. In addition, though Finnissee apparently did
not ask for opening and closing arguments at his trial to be
transcribed, his trial counsel’s questions to witnesses indicate a
defense strategy premised on the argument that Finnissee did not
commit the crimes in question. In these circumstances, trial
counsel’s decision not to request an instruction on voluntary
manslaughter was strategically in line with Finnissee’s rejection of
a plea deal in furtherance of an all-or-nothing defense. And, it
cannot be said that no competent attorney in trial counsel’s position
would not have employed the same strategy in this case.
Judgment affirmed. All the Justices concur. DECIDED AUGUST 10, 2020.
Murder. Lowndes Superior Court. Before Judge McDaniel.
Kathleen Strang, for appellant.
Bradfield M. Shealy, District Attorney, Michelle T. Harrison,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Matthew B. Crowder,
Assistant Attorney General, for appellee.