Petition for Writ of Certiorari — Lawrence B. Hughes, Petitioner v. Georgia

Supreme Court briefFeb 7, 2021

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Supreme Court, U.S.

FILED

FEB 0 7 2021

No.

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OFFICE OF THE CLERK

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Supreme Court of tje fflntteb States

LAWRENCE B. HUGHES,

Petitioner,

STATE OF GEORGIA,

Respondent.

On Petition For Writ Of Certiorari

To The Georgia Supreme Court

PETITION FOR WRIT OF CERTIORARI

Lawrence B. Hughes

RO. Box 426

Oglethorpe, GA 31068

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QUESTIONS PRESENTED

Is it a requirement within State Statute of Fed

eral law for an indictment to be clear and precise

within accusation?

II.

In review of deliberation stage was the state juror(s) confused concerning jury charge in area of

state’s indictment in Count 1 and Count 2?

III.

With each error submitted before conclusion of

closing argument, does the lead prosecution re

veal the erroneous factual bases omitted at the

conclusion of closing argument?

IV.

If the appellate counsel reiterate upon record

of misconduct involving prosecution actual

contribution including in the evidence or in

dictment; stating “But ultimately, ladies and

gentlemen it doesn’t matter where the bullet

came from.” Wouldn’t this be considered as evi

dence to finding upon?

Did the trial court administer an erroneous find

ing of the defendant substantial rights were

violated regarding the 14th Amendment “Due

Process”?

VI.

In review of plain error analysis applied at Geor

gia Supreme Court acknowledgement of non

consideration was due, “Hughes did not raise

the issue” was this legitimate rebuttal to contest

error from review?

VII.

Was a proper review performed in the denial of

justification charge even if petitioner was not

the initial aggressor?

QUESTIONS PRESENTED - Continued

VIII. Were the jurors deprived of any adequate oppor

tunity to consider the justification defense?

IX.

Was the direct verdict of acquittal properly re

viewed surrounding self-defense?

Ill

LIST OF PARTIES

All Parties appear in the caption of the case on the

cover page.

RELATED CASES

•

The State of Georgia v. Lawrence B. Hughes,

Case Number CR160687

•

S20A1309, Hughes v. The State,

In Supreme Court of Georgia

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................................

LIST OF PARTIES.................................................

RELATED CASES..................................................

TABLE OF AUTHORITIES...................................

OPINIONS BELOW................................................

JURISDICTION......................................................

CONSTITUTIONAL AND STATUTORY PROVI

SIONS INVOLVED..............................................

LEGAL ARGUMENT..............................................

STATEMENT OF THE CASE...............................

REASON FOR GRANTING THE WRIT..............

CONCLUSION........................................................

INDEX OF APPENDICES

APPENDIX A

Supreme Court............................

APPENDIX B

Decision of State Superior Court

A13

TABLE OF AUTHORITIES

Page

Cases:

Auman v. People, 109 P.3d 647 (Colo. 2005).........

Hatley v. State, 290 GA. 480, 722 S.E.2d 67

(2012).......................................................................

Heard v. State, 261 GA 262, 403 S.E.2d 438

(1991).......................................................................

Jenkins u. State, 230 A.2d 262 (Del. 1967)...........

Jones u. State, 220 GA App. 784, 470 S.E.2d 326

(Ga. Ct. App. 1996)................................................

McMann v. Richardson, 397 U.S. 759 (1970)......

Means v. Solem, 646 F.2d 322 (8th Cir. 1980).....

Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009).......................................................................

Michigan u. Bryant, 562 U.S. 344 (Fed. R. Evid.

Serv. 1033, 2011)...................................................

Printup v. State, 217 GA 495 458 S.E.2d 662 (Ga.

Ct. App. 1995).........................................................

Quiroz v. State, 662 S.E.2d 235 (Ga. Ct. App.

2008)........................................................................

Simpson v. State, 876 P.2d 690 (Okla. Crim. App.

1994)........................................................................

Strickland v. Washington, 466 U.S. 668 (1984)....

3,9

Tripp v. State, No. A18A1782, 2019 WL 1054261

(Ga. Ct. App. 2019)..................................................

United States v. Lander, 688 F.3d 1289 (11th Cir.

2012)......................................................................... 8,12

TABLE OF AUTHORITIES - Continued

Page

United States v. Madden, 733 F.3d 1314 (11th

Cir. 2013).................................................................

United States v. Rodriguez, 283 Fed.Appx. 743

(11th Cir. 2008).......................................................

Watts v. State, 259 GA App. 531, 578 S.E.2d 231

(Ga. Ct. App. 2003)................................................

Yarber u. State, 337 GA App. 40, 785 S.E.2d 677

(2016).......................................................................

Statute and Rules:

O.C.G.A. 24-1-103....

1, 2, 6,12

GA Constitution / / Georgia First Enacted Felony

Murder.....................................................................

O.C.G.A. 16-3-24.........................................................

2,7

Other:

Attorney/Client Relationship Canon [1.1]

Judicial Canon #3.......................................

OPINIONS BELOW

The unpublished memorandum opinion of the

Georgia Supreme Court for the Eleventh Circuit is in

cluded herein as Appendix A.

JURISDICTION

Petitioner Hughes appealed his conviction for Fel

ony Murder, et al. (O.C.G.A. § 16-5-l(c)) an offense for

which death could have been imposed, giving this court

exclusive jurisdiction. GA Const. Art. VI § VI III (8),

Neal v. State, 290 GA 563, 567-72, 722 S.E.2d 765

(2012). Judgment of conviction.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Plain Error analysis - State Statute (O.C.G.A. 24-1103) GA Constitution 5th Amendment; 14th Amend

ment

Article IIIA, IIIB,V,IV

Federal Statute:

Federal Rule Procedure (R).52

Appendix A: Supreme Court//Acknowledge excluded

error disjointly brought forth

Appendix B: Decision of Superior Court//Factor for

misapplication

Failure of Justification Charge: State statute (O.C.G.A.

16-3-21) through (O.C.G.A. 16-3-24) GA Constitution

6th Amendment; 14th Amendment.

LEGAL ARGUMENT

The misapplication of Plain Error analysis and

failure to uphold state statute (O.C.G.A. 24-1-103)

in lower Superior Court; and Georgia Supreme

Court. Consideration of error submitted at the

lower court (Case # CR160687) that misapplied

harmless error analysis which was initially intro

duced during Motion for New Trial. See: (Trial

Transcript page 650; Lines 4-10). The petitioner

appellate counsel (Kimberly L. Copeland) who

raised the deficiency of trial counsel (Mr. Darden)

and his performance which led up to trial and af

terward. Regarding his non-contestation of Fatal

Variance or rendering no objection; prior trial and

afterward. See: (Trial Transcript page 650; Lines

4-8). The same prejudicial error became obvious

during deliberation stage where the juror made in

quiry toward difference of Actual Act; result of

causing death specified in juror charge and indict

ment. The juror made inquiry toward disparity be

tween both counts and injury charge Count 1 and

Count 2 stating: Count 1 Felony murder, read this

way. “In the name of on behalf of the citizen of the

State of Georgia, charge and accuse Lawrence Ber

nard Hughes with the offense of felony murder for

that said Lawrence Bernard Hughes in the county

of Chatham and State of Georgia on or about the

25th day of June 2015, while in the commission of

a felony, to wit aggravated assault, did cause the

death of Jamon Epps, a human being, by shooting

him, contrary to the law of the State of Georgia.”

Count 2 Felony Murder (O.C.G.A. 16-5-1) and ju

rors afore said, “In the name of and on behalf of

the citizen of the State of Georgia further charge

and accuse Lawrence Bernard Hughes with the of

fense of Felony Murder for the said Lawrence Ber

nard Hughes, in the county of Chatham, State of

Georgia on or about the 25th day of June 2015

while in commission of a felony to wit; possession

of a fire arm by a convicted felon did cause the

death of Jamon Epps a human being by shooting

him contrary to the law of the State of Georgia.”

Thus, it was imperative of trial counsel in earlier

proceeding to review the necessity of prosecution

to properly setting forth and providing essential

element of accusation. See: (Quiroz u. State, 662

S.E.2d 235). In common practice, prosecution ac

cusation should have been properly reviewed and

challenged. As result of trial counsel (Mr. Darden)

deficiency in area of competence [1.1] See: (Attor

ney/Client Relationship Canon). That states, “At

torney shall have legal experience and knowledge,

also thoroughness.” Standard research of state’s

indictment and language specified that should

have ensured some type of defense and such error

should have surfaced during earlier proceeding as

prevention. See: (Strickland v. Washington, 466

U.S. 668 (1984)). Neither possibility nor actual

logic supportive of petitioner being in direct pos

session of weapon that could directly have caused

the victim’s death (where no evidence was shown)

See: (Trial Transcript page 150; Lines 18-20) stat

ing “Here are key facts to remember: One, no one

is saying the defendant intended to kill Jamon

Epps he is not charged with intentionally killing

Jamon Epps. No one is arguing that he did inten

tionally kill Jamon Epps.”

As a result of uncertainty, beyond a reasonable

doubt presided when the juror who made inquiry

toward deliberation stage. See: (Trial Transcript

page 651; Lines 10-17). As states “Again Ladies

and gentlemen, you look at the wording in the in

dictment. You also have the charge which is the

one gave you which is the law that applies in this

case and you have the evidence. The evidence you

heard and the physical evidence. You can put all

the stuff together and make a decision on each one

of the counts of the indictment”

“I hope that resolves this.”

Female Juror:

The Court:

It does resolve it?

Male Juror:

Yes

Contradiction presided in the terminology usage

or descriptive language pertaining the way speci

fied in each count of Felony Murder. See: (Trial

Transcript page 650//Jury’s note concerning dif

ference!/State’s Indictment). Error presided in

predicate felony to support same Count 2; thus,

contrary to Felony Murder rule only being appli

cable in commission of an inherently dangerous

felony. See: 0Jenkins v. State, 230 A.2d 262 (Del.

1967)).

“Moreover application of rule to felonies not fore

seeable dangerous would be unsound.” Therefore,

reviewing circumstance of the status felony that

was utilized, such as “possession of a firearm by

convicted felon” and usage in this current jurisdic

tion presided error. See: (GA Constitution!'/Georgia

first enacted a felony murder statute 1811).

Thus, error revealing the inconsistency in state ev

idence that went contrary to (jury charge and in

dictment) and in return of “not guilty” on both

aggravated assault and felony murder towards di

rect cause of victim death.

On remaining Count 2 which permitted errone

ous impression of detail, surrounding petitioner

simply by being in mere “possession of firearm”

which does not constitute result being cause of vic

tim death. In review of error trial court made at

tempt to remain neutral. (Judicial Canon #3).

Thereafter uncertainty went uncorrected and

counsel made diligent attempt to cure improper

determination by requesting for direct verdict at

latter stage of trial. See: (Trial Transcript page

500; lines 19-25). “Where mitigating circumstances

surrounded self-defense.”

Trial counsel failure to drawing court attention to

wording and descriptive nature specified in Count

2 having caused the death of victim and placed the

petitioner in harms way twice of actual death of

victim. Therefore, exceeding the grand jury indict

ment and infringement upon petitioner constitu

tional aspect of 5th Amendment; 14th Amendment

(GA Constitution and U.S. Constitution). Acknowl

edgment became evident during closing argument

where prosecution made direct inference toward

disparity in the evidence and allegation set forth

contrary to was specified. See: (Trail Transcript

page 150; Lines 18-21). Thus, further harm was

subjected after jury found petitioner not guilty of

actual act of Aggravated Assault or Felony Mur

der, See: (Auman v. People, 109 P.3d 647, 671).

Omission of statement render during trial of state

witness, which was a close relative (surrounding

being in possession of gun) this enabled the jury to

find petitioner guilty. These same factors arose

during appellate stage and the Attorney General

who sought to undermine such arguments due to

misapplication of plain error analysis in compli

ance of state statute. See: (O.C.G.A. 24-1-103),

without weighing each of the factors properly that

met circumstances of petitioner or coincide with

plain error analysis. Prosecution rebuttal was in

reference to ground which did not properly surface

to attention of lower court review. This should

have excluded such rebuttal in compliance to such

statute; as stated in cases tried after January 1,

2013 (O.C.G.A. 241-103). Expanded the plain error

doctrine to permit the appellate court to consider

such ground. The petitioner circumstance met

such criteria in chronical sequence in compliance

to plain error doctrine.

II. Trial court denial of jury charge of justification

and circumstance improperly reviewed at both

lower superior court and at appellate stage. In re

view of jury charge that was requested by defense

and circumstance introduced regarding justifica

tion charge being administered by the trial court

for consideration and was erroneously declined.

Theory set forth by prosecution which was intro

duced and caused of a direct interference in

properly accessing each factor of such defense.

See: {Means v. Solem, 646 F.2d 322 (8th Cir. 1980)).

Presumption of petitioner seeking mischief was

prosecution primary opportunity to discredit de

fense by improperly introducing character. See:

(Trial Transcript page 143 opening statement

Lines 16-19). This enabled means for justification

defense to be precluded from jury and fictious se

quence of event that lead up to the indictment

diverting attention of other individual not men

tioned that were the primary aggressor in the in

cident surrounding felony murder. See: (Trial

Transcript page 329; Line 15-18). Clearly, the peti

tioner sole argument became undermined which

made petitioner inapplicable in accordance to the

state statute. See: (O.C.G.A. 16-3-24). Stating “One

shall be immune from criminal prosecution there

fore unless in the use of deadly force such person

utilizes a weapon” These factors were improperly

reviewed. See: (Printup v. State, 217 GA 495, 458

S.E.2d 662). Similarity of trial court erroring in

failure to instruct the jury on the law of self-de

fense consideration that occurred and evidence

showing petitioner not being the initial aggressor.

See: (.Heard v. State, 261 GA 262, 403 S.E.2d 438).

Prosecution utilized a persuasive tactic to intro

duce character which may have swayed trial court

basing their finding upon status of convicted felon

in possession of firearm also one seeking mischief.

See: {Jones u. State, 220 GA App. 784, 470 S.E.2d

326). That even in status of one being a convicted

felon, defense was still eligible and should not be

prohibited an adequate opportunity of defending

one-self or impression otherwise. No other collab

orating evidence could support trial court refusal

of circumstance specified. See: (Watts v. State, 259

GA App. 531, 578 S.E.2d 231). “To justify a charge

on a given subject, it is not necessary there should

be compelling evidence but enough if there is

something from which a legitimate process of rea

soning can be drawn.” Jury reasoning was limited

which restricted life threatening situation that

occurred beginning with 1.) There was an error

or defeat that has not been intentionally relin

quished or abandoned. During Motion for New

Trial, deficiency of trial counsel came forth in the

area of objection being render upon records. There

fore, abandonment of fatal variance became ob

vious first when juror went to deliberate, and

complication arose in reading verdict surrounding

basic legal question. See: (United States u. Lander,

688 F.3d 1289 (11th Cir. 2012)). The legal error

must be clear or obvious rather than subject to

reasonable dispute. By the juror addressing a gen

eral note before attention of the courts and inquir

ing of difference in terminology. See: (United

States v. Madden, 733 F.3d 1314 (11th Cir. 2013)).

the error must have affected the outcome of the

trail. Petitioner “Due Process” was infringed upon

placing him in harm’s way twice after acquittal of

Aggravated Assault and Felony Murder, which

were only logical result of victim death. Generally

summing up the last and final conclusion for re

quirement. See: (Simpson v. State, 876 P.2d 690

(Okla. Crim. App. 1994)). being overlooked and not

direct cause resulting from petitioner. Thus, trial

court failure to instruct the jury on justification

was a reversible error.

III. Hughes received the ineffective assistance of coun

sel in violation of his 6th Amendment. The 6th

Amendment guarantees every criminal defendant

the right to effective assistance of counsel. See:

(Strickland v. Washington, 466 U.S. 668, 686, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); McMann v.

Richardson, 397 U.S. 759,771, n. 14,90 S.Ct. 1441,

1449, 25 L.Ed.2d 763 (1970)). Generally Strick

land held that ineffective assistance of counsel

consists of performance below minimum standard

of competence and resulting prejudice. See: (Tripp

v. State, No. A18A1782, 2019 WL 1054261, at 2

(GA Ct. App. Mar. 6, 2019); Lawrence u. State, 257

GA 423, 423, 360 S.E.2d 716, 716 (1987); United

States v. Rodriguez, 283 Fed.Appx. 743 (11th Cir.

2008)). If the defendant makes insufficient show

ing on one component the court need not address

the other. Id. at 688-89,104 S.Ct. 2052. Unless the

defendant can rebut the “strong presumption that

the counsel’s performance was constitutionally de

ficient. Id. at 689 104 S.Ct. 2052, U.S. Const.

Amend. VI, GA Const. Art. I § I, Para. XTV. (Failure

to object may constitute a waiver of these constitu

tional rights). Melendez-Diaz v. Massachusetts,

557 U.S. 305,313, n. 3,129 S.Ct. 2527,174 L.Ed.2d

314 (2009); Hatley v. State, 290 GA 480, 722 S.E.2d

67 (2012); Yarber v. State, 337 GA App. 40, 785

S.E.2d 677 (2016). Cf. Michigan v. Bryant, 562 U.S.

344, 358,131 S.Ct. 1143, 1155,179 L.Ed.2d 93,84

Fed. R. Evid. Serv. 1033, 2011.

STATEMENT OF THE CASE

On June 25, 2015 at approximately 9-10 PM, in

Savannah, Georgia, a gunfight occurred among several

participants. The incident ensued on Skidaway Road

near the Top China Restaurant. A witness, Ms. Janie

Geiger, was sitting in her vehicle in front of a laun

dromat, across from the Chinese Restaurant when she

heard what she believed to be gunfire. A few seconds

later, Ms. Geiger’s vehicle was hijacked at gunpoint by

a tall, skinny African American man. She had seen the

man ducking and running from the direction of the res

taurant with a firearm in his hands as numerous gun

shots were heard. Ms. Geiger was afraid she would be

shot. The firearm was long and looked like a rifle or a

cutoff gun. The man ordered Ms. Geiger to get out of

her car because he needed it. She relinquished her ve

hicle and the man immediately left the scene. (TR: 155158, 165-169, 174).

Upon the arrival of a forensic investigator from

the Savannah Police Department Police Department

(SPD), numerous pieces of dark tinted glass, eighteen

(18) 762x39 Tulammo shell casings were collected from

the drive thru area of the restaurant and the grassy

area at the restaurant and the parking lot. The scene

was then photographed, and videotaped. The investi

gator also noted a strong odor of gasoline where it ap

peared gasoline was leaking into the street from a

vehicle in the parking lot. (TR: 175-183, 186, 193). In

vestigators followed the leaking line of gasoline which

eventually led to Tennessee and Maryland Avenues

in Savannah, where they found Ms. Geiger’s vehicle

parked with Hughes’ blood on the steering wheel. (TR:

189-193).

On the same date of the incident, Sgt. Robert Mow

ers of SPD was dispatched to Laroche Avenue, at the

entrance to the Ponderosa Apartment Complex. Upon

his arrival, he found a black SUV [Yukon] with the

lights on sitting in the middle of the street. The vehicle

appeared to have left the Top China Restaurant where

the shootout occurred. There was a strong odor of gas

oline and he discovered a large black male in the

driver’s seat slumped over. He appeared to have sus

tained serious trauma. (TR: 198-203, 207). Later,

Crime Scene Investigator (CSI) Officer Todd Selva

(SPD) arrived at the Laroche Avenue location and be

gan collecting evidence, photographing and videotap

ing the scene. The Yukon had numerous bullet holes in

it, with bullets entering and leaving the SUV; the back

glass was shot out and there was a strong odor of gas

oline. The CSI also collected a number of .40 caliber

and .223 rifle casings from the rear cargo area of the

Yukon. A .40 caliber pistol was found on the floorboard

and a Bushmaster .223 rifle was found on the back seat

of the Yukon. Officer Selva recovered a total of nine

teen (19) .223 shell casings, three (3) Winchester .40

casings, nine (9) Hornady .40 casings and four (4) PMC

.40 casings. (TR: 209-218, 235). Forensic Officer Jenna

Rojas, SPD also arrived on the scene and processed ev

idence. She observed a bullet entry hole in the back of

the headrest of the driver’s seat. This discovery was

consistent with the mortal wound sustained my Jamon

Epps, the victim of the Two Counts of Felony Murder.

(TR: 254-256, 310-314).

REASON FOR GRANTING THE WRIT

In consideration of each enumeration of error sub

mitted or specified in the above writ (before Honorable

Court). Relating to such issues or grounds that has

continuance affected majority of petitioner collectively

surrounding substantial rights that were misapplied

and upheld by U.S. Constitution (6th Amendment;

14th Amendment; Article III A, III, IV, V).

Concerning subsection (I) The misapplication of

plain error analysis and failure to uphold state statute

(O.C.G.A. 24-1-103). Lower assessment of predicate fel

ony “possession of firearm by convicted felon” that are

obvious error and not direct cause of victim death and

disparity in state accusation that usage is erroneously

applied. See: (Nash v. State, 222 GA App. 766, 766-767)

Thereafter, higher review has sought to rectify only se

lective case with similar finding majority opinioned.

See: (United States v. Lander, 668 F.3d 1289 (11th Cir.

2012); United States v. Fuentes, Coba, 738 F.2d 1191,

1196 (11th Cir. 1984)). Demonstration of Plain Error

becomes an issue during deliberation stage and the in

decisiveness illustrated thru the general letter of in

quire toward trial court for further instruction. See:

0Collier v. State, 288 GA 756, 707 S.E.2d 102). There

fore, addressing (Nahmius, J., specially concurring)

where same jurisdiction Georgia Court have recog

nized plain error in only limited circumstances.

Second enumeration of error submitted was sub

section (II) Trial court denial of jury charge of justifi

cation and circumstances improperly reviewed at both

(lower Superior Court, and at appellate stage). Assess

ment of petitioner not being primary aggressor and

hostile confrontation should have satisfied trial court

for jury charge instruction to be administered. Beyond

character projected by the prosecution diverting atten

tion of the individual does not mention that were pri

mary aggressor in the incident. See: (Tarvestad v.

State, 261 GA 605, 606, 409 S.E.2d 513) and (Smith v.

State, 290 GA 768, 770-71, 723 S.E.2d 915). Hence, the

trial court should have given a justification charge. See

CO.C.G.A. 16-3-21) through (O.C.G.A. 16-3-23).

Thus, had court honored state statute or even

at the appellate level, no other solution could have

surfaced. Therefore, trial counsel should have been

resourceful in preparation to adequately review of

defense to improve performance in accordance sound

strategy.

CONCLUSION

The trial of the petitioner has resulted in mis

carriage of justice. Thus, non-contestation of fatal

variance that brought forth confusion prohibit a fair

assessments of state case exceeding the evidence.

The Honorable court to rectify court failing to prop

erly charge the jury of petitioner constitutional

rights were violated by his counsel deficient perfor

mance. Therefore, the court reverse decision of both

lower courts and Georgia Supreme Court erroneous

finding.

Respectfully submitted,

Lawrence B. Hughes

RO. Box 426

Oglethorpe, GA 31068

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