Carter v. State

¶1dissenting.

¶2As the majority incorrectly applies the standard regarding whether a jury instruction is warranted by the evidence, I respectfully dissent.

¶3Although the majority declares that, as a matter of law, a jury instruction on justification based upon defense of a third person was not available to Antawyn, the proper legal inquiry is whether there is evidence supporting the instruction, not whether there is evidence from which a jury could reject the asserted defense. Davis v. State, 269 Ga. 276 (3) (496 SE2d 699) (1998). Ultimately rejecting or accepting such a defense is the proper province of the jury, not this Court. See McNeil v. State, 284 Ga. 586, 588 (1) (669 SE2d 111) (2008).

¶4In stating that no such jury instruction was warranted, the majority focuses upon three factual elements. Even though the majority concedes that there was evidence that Tamitrea was carrying a knife, it states that there was no evidence that Tamitrea was running toward Carey’s house, but rather only evidence that he was running away from Antawyn and “towards a stop sign located at the end of the street.” However, the majority neglects to mention that Carey’s house is located at the end of the street, that there is a stop sign there, and that Tamitrea died at the side of Carey’s yard. Further, the evidence at trial was presented with the aid of exhibits, apparently by utilizing a user-controlled video screen display, and much of the testimony regarding the positions of Tamitrea, Antawyn, and the witnesses was done by physical indications to the jury using these exhibits,2 and these indications upon them have not *568been preserved. The exhibits show two stop signs, with Carey’s house essentially between them, and the testimonial references to stop signs do not foreclose the conclusion that Tamitrea was running toward a door to Carey’s house.3 Based upon testimony that is preserved in the record, a jury could infer that Tamitrea was running not toward a stop sign, but toward Carey’s house.

¶5The majority also states that a jury could not find that there was imminent danger to Carey because he was not “present” at the time of the shooting. The case cited by the majority for the proposition that a third person whom an actor is defending must be “present” to warrant a justification instruction does not illuminate what “present” means in this context. See Brown v. State, 270 Ga. 601, 603 (2) (512 SE2d 260) (1999). The evidence was that Tamitrea had reached the side yard of Carey’s house, within feet of the structure, and the majority provides no guidance as to just how close to an intended victim a knife-wielding person who has threatened to stab another may be allowed to approach before the danger may be considered imminent. Such a determination should not generally be declared as a matter of law, but should be made by the jury, under the specific facts of the case, and with the proper legal instruction.

¶6Further, the majority notes that Tamitrea’s threat to Carey was uttered thirty minutes before the shooting. However, a threat need not be contemporaneous with the defensive use of force for one to reasonably believe that such force is necessary. This Court has long recognized that, even though a threat may have been made well prior to the defensive use of force, the threat is nonetheless relevant to whether the defendant held a reasonable belief that it was necessary to use force to protect himself or another. See Sturkey v. State, 271 Ga. 572, 573-574 (2) (522 SE2d 463) (1999); Shaw v. State, 241 Ga. 308, 309 (1) (245 SE2d 262) (1978); Baker v. State, 142 Ga. 619 (83 SE 531) (1914). See also McDonald v. State, 182 Ga. App. 509, 509-511 (1) (356 SE2d 264) (1987).

¶7The evidence would have allowed the jury to infer that Antawyn had a reasonable belief that Tamitrea posed an “urgent and pressing danger” to his father, Brown, supra, requiring the use of force to prevent his father’s death, or great bodily injury to him. Accordingly, had counsel requested an instruction on justification in the defense of third person, the trial court would have been compelled to give it.4

¶8*569Of course, to prevail on a claim of ineffective assistance of counsel, Antawyn must show both prongs of the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). And here, there is no question that counsel’s performance was deficient. While “[tjhere is a ‘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,’ [cit.],” Turpin v. Helmeci, 271 Ga. 224, 226 (518 SE2d 887) (1999), here the presumption is certainly overcome.

¶9Counsel completely ignored the defense of justification. Rather, counsel asserted to the jury that it should consider the shooting to be an accident; “an accident” is how Antawyn had described the fatal events to a law enforcement officer, but this characterization was legally incorrect, as counsel should have known. Although counsel requested a jury instruction on the law pertaining to the defense of accident, no such instruction was given; the trial court properly rejected the request, reasoning that an intentional discharge of a firearm cannot support an accident defense, even if it is done to scare another person, which is what Antawyn claimed he did. See Cornell v. State, 277 Ga. 228, 229 (587 SE2d 652) (2003).

¶10Counsel testified at the hearing on the motion for new trial that she was surprised when she was presented with case law precluding a jury instruction on accident; that she had not prepared to meet such a challenge to the requested charge; and that she did not have any “Plan B.” Antawyn correctly characterizes this as counsel’s failure to adequately research the law. And,

reasonable professional judgment requires proper investigation. [Cit.] Here, counsel did not adequately research the law. [Cit.] The right to reasonably effective counsel is violated when “the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.” [Cit.]

¶11Turpin v. Helmeci, supra. Had counsel adequately researched the law, she would have recognized that accident was not a viable defense to the charges Antawyn faced. While great deference is generally given to counsel over matters of trial strategy, “an attorney’s strategic decision is not reasonable when the attorney has failed to investigate his [or her] options and make a reasonable choice between them.” (Citation and punctuation omitted.) Turpin v. *570Christenson, 269 Ga. 226, 239 (497 SE2d 216) (1998).5

¶12Counsel could have, and should have, shown at trial that “the circumstances were such as to excite the fears of a reasonable person that [Antawyn’s father’s] safety was in danger. [Cit.]” Hunter v. State, 281 Ga. 693, 694 (2) (642 SE2d 668) (2007). In an interview with an investigating law enforcement officer, Sturghill reported that during a telephone conversation with Antawyn after the shooting, Antawyn told her that Tamitrea had stated that he was going to return to his home and stab their father. Counsel did not question Sturghill about this statement; indeed, counsel did not cross-examine Sturghill at all. At the hearing on the motion for new trial, counsel testified that during the “two or three times” she listened to the audiotape of Sturghill’s statement, she did not hear Sturghill report that Tamitrea said that he would stab Carey, but the trial transcript belies counsel’s testimony. The trial transcript reveals that counsel sought to have a portion of the tape of Sturghill’s statement re-played for the jury, and during the lengthy colloquy on the subject, counsel said, “[w]ell, I’m talking about the part of the tape where [Sturghill] says that Antawyn told her that Tamitrea was going to the house to stab Carey.” Thus, it is plain that although counsel knew that evidence existed that Tamitrea had made a threat against Antawyn’s father, counsel ignored that fact in preparing and executing Antawyn’s defense.6

What does the right to reasonably effective assistance of counsel guarantee the defendant in a criminal trial? “When inadequate representation is alleged, the critical factual inquiry ordinarily relates to . . . whether the defendant had a defense which was not presented-, whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.” [Cit.]

¶13(Emphasis supplied.) Hawes v. State, 240 Ga. 327, 329 (1) (240 SE2d 833) (1977). Here, there was a defense available to Antawyn that was never even considered by counsel. And, the failure to consider such defense was not made in the exercise of reasonable professional *571judgment, but was due to inadequate preparation, investigation, and research. Turpin v. Helmeci, supra;Turpin v. Christenson, supra. Counsel did not evaluate a justification defense and choose another. Compare Taylor v. State, 282 Ga. 693, 695-696 (2) (653 SE2d 477) (2007). Rather, counsel ignored justification and pursued a defense of accident, which was clearly unavailable under the facts. Accordingly, Antawyn established both prongs of the test for ineffective assistance of counsel set forth in Strickland, supra, and the trial court erred in denying the motion for new trial.

¶14I am authorized to state that Chief Justice Sears and Justice Benham join in this dissent.