Beasley v. State

FINAL COPY




                    S18A1252. BEASLEY v. THE STATE.


      BOGGS, Justice.

      In 2011, Terrance Beasley was found guilty of malice murder, felony

murder, aggravated assault, and possession of a firearm during the commission

of a crime in connection with the shooting death of Rodriquez Hamm. Beasley

appeals from the denial of his amended motion for new trial, asserting three

enumerations of error. First, Beasley argues that his trial counsel was ineffective

for failing to object when the prosecutor allegedly violated Mallory v. State, 

 (5) (

) (1991), by commenting on his silence.

Second, he argues that the trial court erred when it instructed the jury on the

defense of habitation or, alternatively, that his counsel was ineffective for failing

to maintain his objection to the defense of habitation instruction after the charge

was given. Third, he argues that his counsel was ineffective for failing to object

to the trial court’s alleged closure of the courtroom, thus violating his
constitutional right to a public trial. We disagree and affirm.1

      Viewed in the light most favorable to the verdicts, the trial evidence

showed that Beasley attended a birthday party at the home of Hamm’s

grandmother on the night of November 21, 1998, where he argued with Hamm’s

sister and was told to leave. As he left with his girlfriend and two friends, he

angrily stated that he would be back.

      Beasley testified that as he and his then-girlfriend were standing by a truck



      1
          The shooting occurred during the early morning hours of November 22,
1998. On June 22, 1999, a Fulton County grand jury indicted Beasley for malice
murder, felony murder, aggravated assault, and possession of a firearm during
commission of a felony. He was tried in 2000, and the jury found him guilty on
all counts. But in 2009, the trial court granted Beasley a new trial. His second
trial was in July and August 2011, and he was again found guilty on all charges.
The trial court sentenced him to serve life in prison for malice murder, plus five
years consecutive for the firearm charge. The trial court purported to merge the
felony murder count, although it actually was vacated by operation of law, and
properly merged the aggravated assault count into the malice murder conviction.
On September 6, 2011, Beasley filed a motion for new trial, which he amended
on June 13, 2016. After a hearing, the trial court denied the motion on January
5, 2018. See Owens v. State, 

 (4) (

) (2018)
(reminding the bench and bar that “we do not condone . . . inordinate delay[s]
in . . . motion for new trial proceeding[s],” as such “delays put at risk the rights
of defendants and crime victims and the validity of convictions obtained after
a full trial”) (citation and punctuation omitted). Beasley filed a timely notice of
appeal, and the case was docketed in this Court for the August 2018 term. The
case was orally argued on September 10, 2018.
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to leave the party, Hamm and some other men with guns approached, and one

man put a gun to Beasley’s head. Beasley’s then-girlfriend testified that she

witnessed the incident. She further testified that, as they were driving away,

Beasley told her that he wanted to return to the party to retrieve his cousin

because he feared that the men who “threatened” him would harm his cousin.

She testified further that she tried to “cool off” Beasley by talking to him but

that his friend, Jamar Hendricks, “hype[d]” Beasley and said that they were

“going to go back and do th[o]se fools.” Beasley then testified that, after

dropping off their friends, he and Hendricks picked up a shotgun from a friend

named “Tip.” Beasley testified that he did not call the police after the alleged

assault because he did not “want the problem,” and he “just wanted to get [his]

cousin” from the party.

      The party was almost over when Beasley returned to Hamm’s

grandmother’s house. He went to the basement’s sliding-glass door with the

shotgun and asked for his cousin to come out. He then went inside, stated that

he was going to “kill every mother f----r in there,” stepped outside, shot once in

the air, and reentered the home. Witnesses testified that they did not see Hamm

with a gun, and did not see Beasley shoot Hamm, but they heard more gunshots

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as they tried to run away or take cover. Hamm’s mother testified that, when she

ran to Hamm after he was shot, he did not have a gun.2

      The State’s medical examiner testified that Hamm suffered two shotgun

wounds: one to the back of his right leg and the other, which killed him, to the

right side of his chest. No weapon was located on Hamm or in the basement of

the home where Hamm was shot, but spent shotgun shell casings were recovered

from the patio outside the sliding-glass door. A shotgun was never found.

      1. Although Beasley does not challenge the sufficiency of the evidence on

appeal, “it is our customary practice in murder cases nevertheless to review the

record and determine whether the evidence was legally sufficient.” Edwards v.

State, 

 (1) (

) (2017). After review, we conclude

that the evidence was sufficient to authorize a rational trier of fact to find

beyond a reasonable doubt that Beasley was guilty of the crimes of which he


      2
        Beasley claimed self-defense. He testified at trial that, when he returned
to the party, Hamm fired a weapon at him, hitting him in his thigh, but that
something in his pocket deflected the shot. Beasley testified that, after the shot
was fired, Hamm’s gun appeared to jam, and Beasley then fired his weapon four
times because Hamm kept lifting the gun up to shoot him again. Despite
Beasley’s testimony that he acted in self-defense, “the jury was authorized to
disbelieve his testimony and credit the testimony of the State’s witnesses.” Allen
v. State, 

 (1) (

) (2012).
                                        4
was convicted. See Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979).

      2. In his first enumeration of error, Beasley asserts that his trial counsel

was constitutionally ineffective for failing to object to the State’s mention of

Beasley’s pre-arrest silence during its questioning of him on cross-examination

and in the State’s closing argument. Specifically, he argues that the prosecutor

violated Mallory when he asked Beasley why he did not call the police before

returning to Hamm’s residence and then commented on that fact during his

closing argument. Beasley also argues that the prosecutor improperly elicited

testimony that, until Beasley’s first trial and after an opportunity to view the

State’s discovery, he had never before claimed that the victim shot a gun at him.3

      To succeed on a claim of ineffective assistance of counsel, Beasley must

show both that his attorney’s performance was deficient and that he was

prejudiced as a result of that deficient performance. See Strickland v.



      3
         During this exchange, the prosecutor asked Beasley, “[T]he first time
you mentioned that Rodriquez Hamm shot at you and his gun jammed was in
February of 2000, correct?” Beasley responded, “Right.” The prosecutor then
asked, “And you heard your previous attorney testify the State had turned over
all the photos and all the police records in 1999, correct?”
                                        5
Washington, 

 (III) (

, 80 LE2d 674) (1984).

Counsel’s performance was deficient “only if it was objectively unreasonable

under the circumstances and in light of prevailing professional norms.” Green

v. State, 

 (2) (

) (2018). And “prejudice is

demonstrated only where there is a reasonable probability that, absent counsel’s

errors, the result of the trial would have been different.” 

 “Failure to satisfy

either prong of the Strickland test is sufficient to defeat a claim of ineffective

assistance, and it is not incumbent upon this Court to examine the other prong.”

(Citation and punctuation omitted.) 

 (2).

      We have held that “in criminal cases, a comment upon a defendant’s

silence or failure to come forward is far more prejudicial than probative” and

that “such a comment will not be allowed even . . . where he takes the stand in

his own defense.” 

 (5).4 At a minimum, “Mallory

focuses on commentary on a defendant’s conduct between the time of the crime


      4
        Mallory was decided under Georgia’s old Evidence Code, which was in
effect at the time of Beasley’s 2011 trial. We express no opinion about the
continuing validity of Mallory under the new Evidence Code. See Eller v. State,

 (IV) (E) (

) (2018); see also State v. Orr, 345 Ga.
App. (

) (2018) (petition for certiorari granted to address this
question (S18G0994)).
                                        6
and prior to arrest.” State v. Sims, 

 (2) (a) (

)

(2015).

      Even if Beasley could demonstrate that his counsel was deficient in failing

to object to the prosecutor’s questions, Beasley has failed to show prejudice. In

an attempt to show prejudice, Beasley argues that the State’s improper

questioning harmed his credibility when he testified that he shot the victim in

self-defense. But even if the implication that Beasley should have called the

police if he had been assaulted or that he had the opportunity to tailor his self-

defense testimony might have harmed his credibility, the State presented other

significant evidence to refute Beasley’s claim of self-defense. Multiple

witnesses testified that they did not see the victim with a gun, and the victim’s

mother testified that he did not have a gun when she ran to him after he was

shot. Nor did police officers locate any weapon on the victim or in the crime

scene area or any evidence of the four shots Beasley claimed that the victim

fired. Thus, given the collective weight of the evidence refuting Beasley’s self-

defense claim, Beasley has not shown that there is a reasonable probability that,

absent counsel’s failure to object to the State’s questioning, the outcome of his

trial would have been more favorable to him. See 

                                        7
(2); Hernandez v. State, 

 (4) (

) (2016).

      3. In his second enumeration of error, Beasley contends that the trial court

erred in instructing the jury on the defense of habitation form of justification

because the “habitation must be the defendant’s, not the victim’s.”5 He claims

that he preserved this issue for appeal because his trial counsel asked for a

“continuing objection” to the habitation instruction at the charge conference and

objected after the charge was given.

      At the charge conference, trial counsel objected that the “habitation” that



      5
        The defense of habitation form of justification is codified at OCGA § 16-
3-23 and states:
             A person is justified in threatening or using force against
      another when and to the extent that he or she reasonably believes
      that such threat or force is necessary to prevent or terminate such
      other’s unlawful entry into or attack upon a habitation; however,
      such person is justified in the use of force which is intended or
      likely to cause death or great bodily harm only if: . . . [t]he entry is
      made or attempted in a violent and tumultuous manner and he or
      she reasonably believes that the entry is attempted or made for the
      purpose of assaulting or offering personal violence to any person
      dwelling or being therein and that such force is necessary to prevent
      the assault or offer of personal violence; . . . [or] the person using
      such force reasonably believes that the entry is made or attempted
      for the purpose of committing a felony therein and that such force
      is necessary to prevent the commission of the felony.

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will support this type of justification must be the defendant’s and not the

victim’s — the same argument he now raises on appeal. But that was not the

basis for his objection after the trial court charged the jury. Instead, he objected

that the trial court should have instructed the jury on the language of OCGA §

16-3-23 as it existed in 1998, when the crimes were committed, rather than the

language of that statute as it existed in 2011, when the case was tried. But he

does not pursue that argument on appeal. Thus, whether Beasley is entitled to

ordinary appellate review of his claim that the challenged instruction should not

have been given at all depends on whether the record shows that his request for

a “continuing objection” at the charge conference was granted. An objection

cannot be viewed as continuing unless “the trial court specifically grants a

continuing objection, or when the trial court on its own initiative clearly

designates an objection as continuing.” State v. Larocque, 

(

) (1997). The record does not show that either happened here.

      At the charge conference, the State requested that the trial court instruct

the jury that a person is justified in using force against another person when and

to the extent that the person reasonably believes that such force is necessary to

prevent or terminate another’s unlawful entry into or attack upon a residence.

                                         9
Beasley objected to the giving of such an instruction, and a lengthy discussion

between Beasley and the trial court followed. Beasley contended that the charge

was inappropriate because his defense was not that he used force against a

person coming into his residence. The trial court then recited the evidence

presented that supported the charge, namely that the victim had a gun and the

home was being invaded by someone with a shotgun. Beasley responded that the

State’s evidence did not support the charge and argued strenuously that the

particular charge was “for the use of a defendant, not a victim.” The trial court

asked why the charge could not apply to both the defendant and the victim, and

Beasley elaborated on his position that the instruction was never intended to

apply to a deceased victim, eventually stating that if “the court decide[d] to give

it, [he’d] ask it be a continuing objection.”

      The trial court, turning to the State for its position, said, “All right. What

do you say?” The prosecutor responded that “there’s no such thing as a charge

that’s only . . . able to be given by the defendant,” but stated that he would

research the issue over a break. The trial court then talked about other jury

instructions with Beasley and afterward took a recess. After the recess, the

prosecutor informed the trial court that he had found a Court of Appeals case

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that supported the giving of an instruction on the victim’s use of force against

the defendant when necessary to prevent or terminate an unlawful entry or attack

upon the victim’s residence, so the instruction at issue applied in Beasley’s case.

The trial court agreed with the State and indicated that it would give the charge.

Beasley did not ask for a ruling on his request for a continuing objection.

      Accordingly, the record does not show that the trial court specifically

granted Beasley a continuing objection, or that the trial court on its own

initiative clearly designated his objection as continuing. Therefore, the

objection, which he asked to be continuing, did not preserve this issue for

ordinary appellate review. See 

. And because his

request for a continuing objection was not granted, Beasley was required to

object with specificity after the court charged the jury, pursuant to OCGA § 17-

8-58, but he failed to do so.

      Although Beasley failed to preserve this issue in the trial court, he has

enumerated it as error on appeal, and we therefore review it for plain error. See

White v. State, 

 (2) (

) (2012). To meet the plain error

test, four prongs must be satisfied: (1) there was no affirmative waiver of the

issue; (2) the error was obvious; (3) the instruction likely affected the outcome

                                        11
of the proceedings; and (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings. 

 Pretermitting the other three

prongs, we conclude that Beasley has failed to show that any alleged error in

giving the instruction was obvious, given that we have not decided the issue and

that, in Robison v. State, 

 (

) (2006), the Court

of Appeals rejected an argument that the trial court erred in giving a jury

instruction on OCGA § 16-3-23, where the habitation being defended was the

victim’s and not the defendant’s. Because Robison remains good law, there is

no obvious error, and therefore, no plain error exists.6

      It is also because of Robison that Beasley’s related claim — that his trial

counsel was ineffective for failing to maintain his objection to the instruction —

fails. In light of Robison, the trial court was permitted to instruct the jury on the

defense of habitation. Therefore, any objection made by counsel would have

been meritless, and the “[f]ailure to make a meritless objection cannot support

a claim of ineffective assistance,” Watson v. State, 

 (3) (

) (2018).



      6
          We express no opinion on whether Robison was correctly decided.
                                         12
      4. In his third enumeration of error, Beasley claims that his trial counsel

was ineffective for failing to object to the trial court’s temporary closing of the

courtroom to the public during the trial. The trial court closed the courtroom to

question a male juror who reportedly knew people in the courtroom that day

who were associated with Beasley. After the male juror testified that he had told

another juror about his relationship with Beasley’s associates, the trial court

excluded the male juror. After a recess for lunch, the trial court polled the jury

and found that no juror had been improperly influenced by the excluded juror.

      Beasley did not question trial counsel at the motion for new trial hearing

regarding an alleged courtroom closure involving the questioning of jurors. “In

the absence of testimony to the contrary, counsel’s actions are presumed

strategic.” (Citation and punctuation omitted.) Holmes v. State, 

 (5) (c) (

) (2001).

      We cannot say that not objecting to the temporary closure was patently

unreasonable trial strategy under the circumstances of this case. A competent

attorney might reasonably decide that a temporary closure would benefit his

client in this situation. For example, the attorney might think it beneficial to his

client to be able to question jurors about their possible intimidation by his

                                        13
client’s associates without having those associates present during the

questioning. Doing so might aid his efforts to obtain a favorable jury

composition. See Johnson v. State, 

 (3) (

) (2013)

(“[P]ublic access to voir dire can be limited . . . to promote juror candor and

minimize the risk of juror taint.”); Muse v. State, 

 (2) (a) (

) (2013) (“We cannot say that it was unreasonable for the lawyer to

think that closing the courtroom might facilitate his efforts to [obtain a favorable

jury composition], and Appellant has failed, therefore, to overcome the strong

presumption that the failure of her lawyer to object to the closing was a

reasonable trial strategy.”); State v. Abernathy, 

 (5) (

) (2011) (“Given that the [closure] was designed with the express purpose of

maximizing the odds of . . . a fair trial, [the defendant] cannot make” the

required showing of harm.).

      Judgment affirmed. All the Justices concur.




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                         Decided February 18, 2019.

      Murder. Fulton Superior Court. Before Judge Newkirk.

      Brian Steel, for appellant.

      Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C.

Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Katherine D. Emerson, Assistant Attorney General,

for appellee.




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