Hardy v. State

Deveric Hardy was convicted of malice murder for shooting and killing Kyree Smith during what Hardy said was a phone sale that turned into a drug deal and then a struggle over a gun in a Gwinnett County parking lot in 2016. Hardy claimed he shot Smith in self-defense after Smith pulled a gun on him. On appeal, Hardy argued his trial lawyer failed him in two ways: by not eliciting testimony from a witness that Smith had a reputation for violence, and by not asking the judge to instruct the jury that testimony from an alleged accomplice needed outside corroboration. The Supreme Court of Georgia rejected both arguments. It found Hardy could not show the missing violence testimony would have changed the trial's outcome, and it found his lawyer's decision to skip the accomplice instruction was a reasonable strategic choice that fit the defense theory that Hardy was there to buy phones, not drugs.

Trial counsel was not constitutionally ineffective: failing to elicit violent-character testimony did not cause prejudice because Hardy offered no actual testimony from the witness showing what he would have said, and declining to request an accomplice-corroboration instruction was a reasonable strategic choice consistent with the defense theory.

The decision reinforces that Georgia defendants challenging their lawyers' strategic choices, including which witnesses to question and which jury instructions to request, face a high bar on appeal, and that speculation about what an uncalled witness might have said is not enough to win a new trial.

Affirmed

1. The court applied the two-part Strickland test for ineffective assistance of counsel, which requires showing both that the lawyer's performance was objectively unreasonable and that this failure likely changed the outcome of the trial.
2. On the character-evidence claim, the court explained that a defendant cannot prove prejudice merely from his own trial lawyer's guess about what an uncalled witness would have said; the witness must actually testify or the defendant must offer a legally recognized substitute for that testimony.
3. Because Hardy never had the witness, Brevin Egerton, testify at the hearing on his motion for a new trial about Smith's alleged violent character, the court found no way to know whether that testimony would have helped Hardy, so there was no prejudice.
4. On the jury-instruction claim, the court applied the rule that decisions about which jury charges to request are typically a matter of trial strategy, reviewed only to see if no competent lawyer would have made the same choice.
5. The court found the lawyer's choice reasonable because requesting an instruction suggesting Smith's friend Anthony Benson was an accomplice would have undercut the defense's core story that Hardy went to the parking lot only to buy phones, not to participate in a drug deal with Smith and Benson.
6. Because the strategic choice was reasonable, the court concluded trial counsel was not deficient on that claim, so it did not need to separately analyze whether the outcome would have differed.

• murder conviction
• ineffective assistance of counsel
• self-defense claim
• jury instructions
• accomplice testimony