CourtListener 10680334

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official text of the opinion.

In the Supreme Court of Georgia

Decided: May 14, 2024

S24A0382. JACKSON v. THE STATE.

WARREN, Justice.

Appellant Derylmyaize Jackson was convicted of felony murder

and a firearm offense in connection with the shooting death of

Tazavia Cooper. 1 In his sole claim on appeal, Jackson contends that

his trial counsel provided ineffective assistance by failing to object

to statements that the prosecutor made during her closing

argument. As explained below, we affirm.

1 Cooper was killed on July 5, 2019. In October 2020, a Thomas County
grand jury indicted Jackson for felony murder based on aggravated assault,
aggravated assault, and possession of a firearm during the commission of a
felony. At a trial from June 28 to 30, 2021, a jury found him guilty of all counts.
The trial court sentenced Jackson to serve life in prison without the possibility
of parole for felony murder and five consecutive years for the firearm offense;
the aggravated-assault count merged for sentencing purposes. Jackson filed a
timely motion for new trial, which he later amended through new counsel.
After an evidentiary hearing, the trial court denied the motion in August 2023.
Jackson then filed a timely notice of appeal, and the case was docketed to the
term of this Court beginning in December 2023 and submitted for a decision
on the briefs.
1. The evidence presented at Jackson’s trial showed the

following. On July 5, 2019, Jackson and Cooper exchanged text

messages in which Jackson offered to trade his “[G]lock” handgun

for Cooper’s “[K]el [T]ec” gun. Around 1:15 p.m., Cooper arrived on

Feinberg Street in Thomasville, where he and Jackson had arranged

to meet.

According to Tahrik Anderson, he and Jackson were hanging

out on Feinberg Street when two men, whom Anderson did not know

but whom investigators later identified as David McNair and

Cooper, arrived in a car. Jackson began “acting weird”; he walked

to the driver-side window and discussed “exchang[ing] guns” with

Cooper, who pulled out a Kel-Tec handgun. Jackson pulled out a

black handgun, which Cooper examined. McNair then got out of the

passenger seat, urinated on the ground, got back in the car, and

reached down toward the floorboard. Jackson fired shots toward

Cooper, grabbed the Kel-Tec handgun from Cooper’s lap, and ran

away. Anderson fled with Jackson. Although Anderson testified

that he was “in fear of [his] life” because he thought McNair was

2
reaching for a gun, Anderson also testified that he did not hear

Cooper or McNair threaten Jackson and he did not see McNair with

a weapon.2

McNair called 911. Investigators who responded to the scene

found Cooper, who had been shot once on the left side of his head,

slumped over the center console of the car, dead. McNair was sitting

on a nearby curb, crying. Investigators did not find any weapons at

the scene, and they did not see any weapons on McNair.3 A crime

scene investigator found three Luger 9mm shell casings on the

ground near the car, which she testified indicated that one gun was

fired three times. Based on the location of two bullet holes in the

back driver-side window and the position of Cooper’s body on the

center console, the investigator concluded that the first shot was

fired through the open driver-side window, hitting Cooper, who was

likely sitting upright (rather than leaning toward the driver-side

2 On direct examination, Anderson testified that during an interview

with investigators on the day after the shooting, he untruthfully said that
Jackson shot because McNair “pulled a gun.”

3 McNair did not testify at trial.

3
window), and causing him to slump over the console; the second and

third shots were then fired through the back driver-side window,

indicating that the shooter moved from the driver-side window

toward the back of the car as he shot.

After the shooting, a friend picked up Jackson and Anderson

and drove them to a nearby apartment complex. A woman who was

at the complex testified that Jackson looked “scared” and said that

he “need[ed] some bleach, [he] just killed someone.” According to

Anderson, someone then drove him and Jackson to a friend’s house.

Jackson had the Kel-Tec handgun there, but Anderson did know

what ultimately happened to that gun or the gun Jackson used to

shoot Cooper. Investigators never recovered the guns. Jackson

turned himself in at a police station later that evening.

Jackson did not testify at trial. His theory of defense was that

the State could not meet its burden of proving that he did not act in

self-defense.

2. Jackson contends that his trial counsel provided

constitutionally ineffective assistance by failing to object during the

4
prosecutor’s closing argument. Specifically, Jackson points to the

prosecutor’s following statements to the jury, while discussing the

State’s burden of proof: “[W]hat it all boils down to, is what your

heart and your mind tell you about the evidence. If you find in your

heart and your mind that you believe Derylmyaize Jackson

committed these offenses, then you are authorized to return a

verdict of guilty.” Relying primarily on Debelbot v. State, 308 Ga.

165 (839 SE2d 513) (2020), in which we held that the appellants’

trial counsel provided ineffective assistance by failing to object to the

prosecutor’s “‘egregious misstatement of the law’” “that proof beyond

a reasonable doubt requires something less than proof that leaves a

jury with 51 percent certainty,” Jackson claims that the prosecutor’s

statements here similarly reduced the State’s burden to prove the

charged crimes beyond a reasonable doubt. Id. at 167 (citation

omitted).

To prevail on his claim of ineffective assistance, Jackson must

establish that his counsel’s performance was constitutionally

deficient and that he suffered prejudice as a result. See Strickland

5
v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674)

(1984); Scott v. State, 317 Ga. 218, 221 (892 SE2d 744) (2023). To

prove deficient performance, Jackson must show that his lawyer

“‘performed his duties in an objectively unreasonable way,

considering all the circumstances and in the light of prevailing

professional norms.’” Id. (citation omitted). To prove prejudice,

Jackson must demonstrate “‘that there is a reasonable probability

that, but for counsel’s deficiency, the result of the trial would have

been different.’” Id. at 221-222 (citation omitted). “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.

Assuming (without deciding) that Jackson’s trial counsel

performed deficiently by failing to object to the prosecutor’s

statements about reasonable doubt, Jackson has not established a

reasonable probability that the outcome of his trial would have been

different if counsel had objected, so he has not shown prejudice. See

Scott, 317 Ga. at 222 (explaining that if a defendant fails to make a

sufficient showing on one part of the Strickland test, we need not

6
address the other part).

As we have explained in decisions after Debelbot,
that case involved a specific set of circumstances that
made the prosecutor’s comments about reasonable doubt
uniquely prejudicial. It was already a close question
whether the underwhelming and almost entirely
circumstantial evidence was legally sufficient. That
evidence was unusual in that it showed that the two
defendants had essentially equal opportunities—and no
one else had any opportunity at all—to inflict the fatal
injuries, so the logical probability that either [defendant]
inflicted the fatal trauma would be 50 percent. And, given
that peculiarity, the prosecutor’s suggestion that the jury
could convict a defendant even if it was less than 51
percent sure about the defendants’ guilt was uniquely
harmful. Finally, the trial court’s instruction in Debelbot
that the State is not required to prove its case to “a
mathematical certainty,” a phrase which the State
repeated twice, may well have been understood by the
jury not as correcting the State’s error, but as reinforcing
it. Absent those unique circumstances, defendants
seeking to establish prejudice from a prosecutor’s
comments that do not accurately characterize reasonable
doubt cannot simply rest on Debelbot. Instead, a
defendant asserting an ineffective-assistance claim like
the one here must show how a prosecutor’s particular
mischaracterization of reasonable doubt likely affected
how a jury weighed the evidence of his guilt under the
circumstances of his case (and in doing so, show how
objecting to the comments would have created a
reasonable probability of a different outcome).

Scott, 317 Ga. 225-226 (cleaned up).

7
Here, although the statements that Jackson points to, if viewed

in isolation, may have misinformed the jurors that they would be

authorized to find Jackson guilty if they believed in their “heart[s]”

and their “mind[s]” that he was guilty—rather than if the State

proved beyond a reasonable doubt each essential element of the

charged crimes—Jackson makes no specific argument as to how

these statements affected the outcome of his trial, in light of the

evidence of his guilt, other statements that the prosecutor made

during closing, and the trial court’s instructions to the jury. Given

the facts of his case, however, we have no difficulty concluding that

this case is distinguishable from Debelbot. To begin, unlike the

evidence in Debelbot, the evidence of Jackson’s guilt was not

“underwhelming,” because the State presented significant proof to

rebut his claim of self-defense. In this respect, Anderson testified

that Jackson shot Cooper and then stole his gun, Anderson did not

hear Cooper or McNair threaten Jackson, and McNair did not have

a gun. Investigators did not find any weapons at the scene or see

any weapons on McNair, and the ballistics evidence suggested that

8
only one gun was fired at the time of the shooting, indicating that

neither Cooper nor McNair shot toward Jackson. And although

Jackson eventually turned himself in to law enforcement officials,

he fled the crime scene just after the shooting and told a witness

that he needed “bleach” because he had “just killed someone.” See,

e.g., Scoggins v. State, 317 Ga. 832, 838 (896 SE2d 476) (2023)

(noting that flight from the scene of a crime generally can be viewed

as circumstantial evidence of guilt).

Moreover, before the prosecutor made the statements at issue

here, she accurately explained that “[t]he burden of proof is always

on the State to prove each element beyond a reasonable doubt.” She

also correctly characterized reasonable doubt as “not arbitrary or

capricious doubt. It’s not a far[-]flung doubt. It’s not a doubt for

which you can give a mathematical certainty, but it is a doubt of a

fair and impartial minded juror honestly seeking the truth. It is a

doubt for which you can give a reason.” In addition, she told the

jurors that the trial court would instruct them on the law that

applied to the case, and the trial court did so. To that end, during

9
the final jury charge, the trial court thoroughly and properly

instructed the jury on the presumption of innocence, the State’s

burden to prove beyond a reasonable doubt every essential element

of the crimes charged, and the definition of reasonable doubt.4 The

court then stated, among other things, that it was the court’s duty

to instruct the jury on the law, that the jury was bound by such

instructions, that the jury had the responsibility to determine the

facts from the evidence presented and to apply the law to the facts,

and that the lawyers’ closing arguments were not evidence.

Thus, to the extent that the prosecutor mischaracterized the

4 As to the definition of reasonable doubt, the court said:

A reasonable doubt means just what it says. A reasonable
doubt is a doubt of a fair-minded, impartial juror honestly seeking
the truth. A reasonable doubt is a doubt based upon common sense
and reason. It does not mean a vague or arbitrary doubt but is a
doubt for which a reason can be given, arising from a consideration
of evidence, a lack of evidence, or a conflict in the evidence.
Now, after giving consideration to all of the facts and
circumstances of this case, if your minds are wavering, unsettled,
or unsatisfied, then that is a doubt of the law, and you must acquit
the defendant. But, if that doubt does not exist in your minds as
to the guilt of the accused, then you would be authorized to convict
the defendant. If the State fails to prove the defendant’s guilt
beyond a reasonable doubt, it would be your duty to acquit the
defendant.
10
reasonable doubt standard, we cannot say that it was as egregious

as the characterization in Debelbot and, unlike in that case, the

statements here were corrected by the trial court’s jury instructions.

Especially given that the evidence of guilt was stronger in this case

than in Debelbot, Jackson has not shown a reasonable probability

that his lawyer’s failure to object to the prosecutor’s statements

affected the outcome of his trial, and this claim fails. See, e.g., Scott,

317 Ga. 225-226 (assuming that the appellant’s trial counsel

performed deficiently by failing to object to the prosecutor’s

statement during closing argument that “[o]nce you believe that the

defendant is guilty, that is guilt beyond a reasonable doubt,” among

other things, and holding that the appellant failed to show prejudice

because the evidence of his guilt was strong, the prosecutor told the

jury that the trial court would instruct on the law, and the court

thoroughly instructed the jury on the burden of proof, the

presumption of innocence, and reasonable doubt); Warren v. State,

314 Ga. 598, 602-603 (878 SE2d 438) (2022) (assuming that the

appellant’s trial counsel performed deficiently by failing to object to

11
the prosecutor’s comment that proof beyond a reasonable doubt was

not “‘95 percent, 85 percent’” and holding that the appellant had not

proved prejudice because he had “not pointed to anything in this

case like the circumstances in Debelbot that made the prosecutor’s

more egregious remark ‘uniquely harmful’ there, and the trial court

. . . ‘explained presumption of innocence, burden of proof, and

reasonable doubt accurately and at length’”) (citation omitted);

Draughn v. State, 311 Ga. 378, 382-384 & n.5 (858 SE2d 8) (2021)

(assuming that the appellant’s trial counsel performed deficiently by

failing to object to the prosecutor’s “inadvisable” statements about

reasonable doubt, and holding that the appellant failed to show

prejudice because the evidence of his guilt was “plainly sufficient”

and the trial court accurately instructed on the presumption of

innocence, the State’s burden of proof, and reasonable doubt).

Judgment affirmed. All the Justices concur.

319 Ga. 51
FINAL COPY

S24A0382. JACKSON v. THE STATE.

WARREN, Justice.

Appellant Derylmyaize Jackson was convicted of felony murder

and a firearm offense in connection with the shooting death of

Tazavia Cooper.1 In his sole claim on appeal, Jackson contends that

his trial counsel provided ineffective assistance by failing to object

to statements that the prosecutor made during her closing

argument. As explained below, we affirm.

1. The evidence presented at Jackson’s trial showed the

following. On July 5, 2019, Jackson and Cooper exchanged text

1 Cooper was killed on July 5, 2019. In October 2020, a Thomas County

grand jury indicted Jackson for felony murder based on aggravated assault,
aggravated assault, and possession of a firearm during the commission of a
felony. At a trial from June 28 to 30, 2021, a jury found him guilty of all counts.
The trial court sentenced Jackson to serve life in prison without the possibility
of parole for felony murder and five consecutive years for the firearm offense;
the aggravated-assault count merged for sentencing purposes. Jackson filed a
timely motion for new trial, which he later amended through new counsel.
After an evidentiary hearing, the trial court denied the motion in August 2023.
Jackson then filed a timely notice of appeal, and the case was docketed to the
term of this Court beginning in December 2023 and submitted for a decision
on the briefs.
messages in which Jackson offered to trade his “[G]lock” handgun

for Cooper’s “[K]el [T]ec” gun. Around 1:15 p.m., Cooper arrived on

Feinberg Street in Thomasville, where he and Jackson had arranged

to meet.

According to Tahrik Anderson, he and Jackson were hanging

out on Feinberg Street when two men, whom Anderson did not know

but whom investigators later identified as David McNair and

Cooper, arrived in a car. Jackson began “acting weird”; he walked to

the driver-side window and discussed “exchang[ing] guns” with

Cooper, who pulled out a Kel-Tec handgun. Jackson pulled out a

black handgun, which Cooper examined. McNair then got out of the

passenger seat, urinated on the ground, got back in the car, and

reached down toward the floorboard. Jackson fired shots toward

Cooper, grabbed the Kel-Tec handgun from Cooper’s lap, and ran

away. Anderson fled with Jackson. Although Anderson testified that

he was “in fear of [his] life” because he thought McNair was reaching

for a gun, Anderson also testified that he did not hear Cooper or

2
McNair threaten Jackson and he did not see McNair with a weapon.2