Brooks v. State

FINAL COPY

               S20A0895. BROOKS v. THE STATE.


     BOGGS, Justice.

     Deontae Tremayne Brooks was convicted of malice murder,

aggravated assault, and possession of a firearm by a convicted felon

under OCGA § 16-11-133 (b) in connection with the shooting death

of Branden “Big B” Tinch and the aggravated assault of Lenard Gay.

He was sentenced to life without the possibility of parole. He

appeals, asserting three enumerations of error: insufficiency of the

evidence to support his conviction under OCGA § 16-11-133 (b),

ineffective assistance of counsel, and trial court error in failing to

grant his motion for mistrial. For the reasons stated below, we

reverse Brooks’ conviction under OCGA § 16-11-133 (b), affirm his

convictions for malice murder and the aggravated assault of Gay,

and remand the case to the trial court with direction to enter a

judgment of conviction and sentence on the guilty verdicts for

possession of a firearm during the commission of a felony and
possession of a firearm by a convicted felon under OCGA § 16-11-

131, which the trial court originally merged into the conviction

under OCGA § 16-11-133 (b).1

      1. Construed in the light most favorable to the jury’s verdicts,

the evidence presented at Brooks’ trial showed that on July 22, 2015,

Tinch, who was a drug dealer, lived with his father and stepmother

in a subdivision in College Park. Tinch and his friend Gay were



      1 The crimes occurred on July 22, 2015. On November 24, 2015, a Fulton

County grand jury indicted Brooks for malice murder, three counts of felony
murder, two counts of aggravated assault against Brooks and Gay, possession
of a firearm during the commission of a felony, possession of a firearm by a
convicted felon under OCGA § 16-11-131, and possession of a firearm during
commission of a crime against a person by a felon previously convicted of a
crime involving a firearm under OCGA § 16-11-133 (b). After several delays
and substitutions of trial counsel, Brooks was tried before a jury from May 7
to 14, 2018, and found guilty on all counts. On May 15, 2018, Brooks was
sentenced to serve life in prison without the possibility of parole, plus ten years
in prison to be served concurrently on the conviction for aggravated assault
involving Gay, and five years in prison to be served concurrently on the
conviction under OCGA § 16-11-133 (b), although that Code section mandates
a fifteen-year consecutive sentence. The trial court merged the other
aggravated assault count into the malice murder conviction and merged the
remaining firearms counts into the conviction under OCGA § 16-11-133 (b); the
felony murder charges were vacated by operation of law. On May 29, 2018,
Brooks’ trial counsel filed a motion for new trial, which was amended by
appellate counsel on September 5, 2019. After a hearing on November 12, 2019,
the motion was denied on December 2, 2019. Brooks’ notice of appeal was filed
on December 20, 2019, and the case was docketed in this Court for the April
2020 term and submitted for decision on the briefs.
riding around the area in Tinch’s car, a Toyota Camry, with Gay

driving. Tinch received several calls from someone known as “Black

Boy,” who said he was looking for a ride to cash a check and gave

Tinch the address of a nearby house.2 Gay did not really know “Black

Boy” but recalled seeing him around the neighborhood. Tinch and

Gay drove to the address, and Brooks walked out of the house, got

into the rear passenger seat, and, without saying anything, pulled

out a revolver. As Gay grabbed a gun from under the dashboard and

rolled out of the car, he heard a gunshot and saw Tinch trying to

crawl over toward the driver’s door, so he fired a shot at Brooks.

Tinch, wounded and bleeding, managed to crawl out of the car with

Gay’s help, and several witnesses in the neighborhood saw Brooks

shooting at Tinch and Gay as they fled. Brooks then ran from the

scene, and Tinch and Gay sought assistance from a neighbor, who

drove Tinch to his parents’ house nearby. Police and EMTs arrived,

and Tinch was taken to the hospital, where he was pronounced dead.



      2 A cell phone forensic expert testified that Brooks’ cell phone made six

calls to Tinch that morning.
The medical examiner testified that Tinch was shot twice from

behind, in the head and in the lower body, and that the cause of

death was a gunshot wound to the head. Gay identified Brooks from

a photo lineup, and Brooks was arrested in Ohio approximately one

month later.

     (a) Brooks argues that the evidence was insufficient to support

his conviction on Count 9, possession of a firearm by a convicted

felon during the commission of another felony enumerated under

OCGA § 16-11-133 (b). Both the District Attorney and the Attorney

General concede that the evidence adduced at trial was insufficient,

and we agree.

     As part of the proof of a violation of OCGA § 16-11-133 (b), the

State must present evidence that the defendant possessed a firearm

in the commission of certain crimes after having been convicted of

one of nine enumerated felonies or “any felony involving the use or

possession of a firearm.” OCGA § 16-11-133 (b).3 Count 9 of the


     3 OCGA § 16-11-133 (b) provides:

          Any person who has previously been convicted of or who has
indictment charged Brooks with possessing a handgun during the

commission of a felony against the person of another, see OCGA §

16-11-133 (b) (1), “said accused having been previously convicted of

a felony involving the possession or use of a firearm on indictment

number 06SC51346 in the Superior Court of Fulton County, on

October 1, 2007.”

     At Brooks’ trial, the State tendered an exhibit consisting of the



     previously entered a guilty plea to the offense of murder, murder
     in the second degree, armed robbery, home invasion in any degree,
     kidnapping, rape, aggravated child molestation, aggravated
     sodomy, aggravated sexual battery, or any felony involving the use
     or possession of a firearm and who shall have on or within arm’s
     reach of his or her person a firearm during the commission of, or
     the attempt to commit:
                 (1) Any crime against or involving the person of
           another;
                 (2) The unlawful entry into a building or vehicle;
                 (3) A theft from a building or theft of a vehicle;
                 (4) Any crime involving the possession, manufacture,
           delivery, distribution, dispensing, administering, selling, or
           possession with intent to distribute any controlled substance
           as provided in Code Section 16-13-30; or
                 (5) Any crime involving the trafficking of cocaine,
           marijuana, or illegal drugs as provided in Code Section 16-
           13-31,
     and which crime is a felony, commits a felony and, upon conviction
     thereof, shall be punished by confinement for a period of 15 years,
     such sentence to run consecutively to any other sentence which the
     person has received.
indictment, plea, charge disposition report, and judgment of

conviction and sentence in Brooks’ 2007 conviction, showing that

while Brooks was originally charged with armed robbery, hijacking

a motor vehicle, aggravated assault with intent to rob, and

possession of a firearm during the commission of a felony, he entered

a guilty plea and was sentenced only for the lesser included offense

of theft by taking, aggravated assault with intent to rob, and

possession of a firearm in the commission of a felony; the charge of

hijacking a motor vehicle was dead-docketed. The trial court

excluded the exhibit as unduly prejudicial.4 Instead, a stipulation

was read to the jury as part of the trial court’s charge:

          The parties have entered into a stipulation that has
     been approved by the court about the following facts: this
     defendant was convicted . . . of aggravated assault with
     intent to rob on October 1, 2007.

The stipulation does not state that the aggravated assault involved




     4 See Old Chief v. United States, 

 (

, 136

LE2d 574) (1997) (excluding full record of prior felony conviction when “the
name or nature of the prior offense raises the risk of a verdict tainted by
improper considerations”).
the use of a firearm, and the title of the crime — aggravated assault

with intent to rob — does not suggest the use of a firearm. See OCGA

§§ 16-5-20, 16-5-21.5 Indeed, aggravated assault with intent to rob

may be committed without the use of a firearm. See, e.g., Mathis v.

State, 

 (1) (

) (2014) (defendant

attacked victim with hands, feet, a battery charger, and gasoline,

and then took victim’s wallet). Moreover, here the State presented



     5 The simple assault statute, OCGA § 16-5-20, provides:

           (a) A person commits the offense of simple assault when he
       or she either:
                  (1) Attempts to commit a violent injury to the
           person of another; or
                  (2) Commits an act which places another in
           reasonable apprehension of immediately receiving a
           violent injury.
The aggravated assault statute, OCGA § 16-5-21, provides:
            (a) A person commits the offense of aggravated assault
       when he or she assaults:
                  (1) With intent to murder, to rape, or to rob;
                  (2) With a deadly weapon or with any object,
            device, or instrument which, when used offensively
            against a person, is likely to or actually does result in
            serious bodily injury;
                  (3) With any object, device, or instrument which,
            when used offensively against a person, is likely to or
            actually does result in strangulation; or
                  (4) A person or persons without legal
            justification by discharging a firearm from within a
            motor vehicle toward a person or persons.
no witnesses from the 2007 case. The evidence presented at trial

therefore was insufficient to authorize the jury to convict Brooks

under OCGA § 16-11-133 (b). See Tiller v. State, 

 (

) (2007) (reversing conviction for possession of

firearm by convicted felon when prior conviction could have been for

felony or for misdemeanor and evidence at trial did not specify). Cf.

McKie v. State, 

 (

) (2019)

(distinguishing Tiller).

     Accordingly, we reverse the conviction on Count 9 and remand

to the trial court to enter convictions and sentences on the two

firearm possession counts that were merged with Count 9 for

sentencing. See Blackmon v. State, 

 (2) (

) (2016); Chester v. State, 

 (1) (

)

(2008).

     (b) Brooks has not challenged the sufficiency of the evidence to

support his remaining convictions. However, as is this Court’s

practice in murder cases, we have reviewed the record to determine

the legal sufficiency of the evidence supporting his convictions for
malice murder and aggravated assault.6 And, in light of the remand,

we also have reviewed the record to determine the sufficiency of the

evidence supporting the charges of possession of a firearm by a

convicted felon and possession of a firearm during the commission

of a felony. We conclude that the evidence presented at trial and

summarized above was sufficient to enable a rational trier of fact to

conclude beyond a reasonable doubt that Brooks was guilty of these

other crimes. See Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979).

     2. Brooks contends that his trial counsel was constitutionally

ineffective in his choice of a theory of defense. Relying on Swanson

v. State, 

 (2) (

) (2019), Brooks asserts

that his trial counsel was ineffective in pursuing a defense of

justification   by   self-defense,7   contending      it   was    a   legally



     6 We remind litigants that the Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, ___ Ga.
___ (___ SE2d ___) (2020). The Court began assigning cases to the December
Term on August 3, 2020.
       7 “A person is justified in threatening or using force against another
unsupportable theory, and that trial counsel instead should have

asserted the “viable” defense of justification by defense of

habitation.8 We conclude that Brooks has failed to show ineffective

assistance.

      To prevail on his claim of ineffective assistance, Brooks must

prove both that the performance of his lawyer was professionally

deficient and that he was prejudiced by this deficient performance.

See Strickland v. Washington, 

 (III) (

,

80 LE2d 674) (1984). To prove deficient performance, Brooks must

show that his attorney “performed at trial in an objectively

unreasonable way considering all the circumstances and in the light

of prevailing professional norms.” Romer v. State, 

(3) (

) (2013). This requires a defendant to “overcome

the strong presumption that counsel’s performance fell within a


when and to the extent that he or she reasonably believes that such threat or
force is necessary to defend himself or herself or a third person against such
other’s imminent use of unlawful force[.]” OCGA § 16-3-21 (a).
       8 “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[.]” OCGA § 16-3-23. The definition of “habitation”
includes a motor vehicle. See OCGA § 16-3-24.1.
wide range of reasonable professional conduct.” (Citation and

punctuation omitted.) Marshall v. State, 

 (2) (

) (2015). And to prove prejudice, Brooks “must show that

there   is   a   reasonable   probability   that,   but   for   counsel’s

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 

(III) (B). If there is no showing of deficient performance, we need not

address the prejudice prong. See Romer, 

 (3) (citing

Strickland, 

 (IV)).

     Brooks contends that trial counsel was constitutionally

deficient in choosing to assert justification by self-defense instead of

by defense of habitation. He contends that self-defense was

foreclosed because, Brooks asserts for the first time on appeal, he

was engaged in a felony, criminal attempt to purchase marijuana,

at the time of the fatal shooting. See OCGA §§ 16-3-21 (b) (2); 16-13-

30 (j). He contends that trial counsel instead should have relied upon

defense of habitation. Brooks points to Swanson, 

 (2),
in which appellant’s trial counsel asserted self-defense but not

defense of habitation. There, Swanson testified at trial that he shot

the victim in self-defense, but also admitted that he was engaged in

the sale of marijuana, a felony, when the victim attempted to rob

him and the passengers in his car. This Court held that, because

self-defense was foreclosed by OCGA § 16-3-21 (b) (2) and Swanson’s

trial testimony, his trial counsel was deficient in requesting a jury

instruction on self-defense but not an instruction on defense of

habitation, which does not contain an exception for the commission

of a felony. See id. at 157-158 (2) (a); OCGA § 16-3-23.

     But the circumstances here are quite different from those in

Swanson. Unlike Swanson, Brooks did not testify and did not admit

that he was committing a felony at the time of the incident. During

closing argument, Brooks’ trial counsel argued that the State had

failed to prove the circumstances of the shooting and had failed to

exclude the possibility that Brooks acted in self-defense. Trial

counsel suggested multiple theories of how the incident occurred,

including a possible “drug deal gone wrong,” the presence of a fourth
man who shot at the victims,9 or an attempted robbery by Tinch and

Gay.

       Brooks contends that trial counsel’s speculation in closing

argument amounted to an admission that Brooks was guilty of a

felony — criminal attempt to purchase marijuana — and that trial

counsel therefore could not successfully assert a defense of

justification by self-defense. However, as trial counsel observed at

the hearing on Brooks’ motion for new trial, no evidence showed that

a drug deal was in progress when the shooting occurred. While Gay

readily acknowledged that Tinch was a drug dealer, on cross-

examination Gay denied that a drug deal was taking place at the

time of the shooting or that it was a “drug deal gone bad.” No drugs




       9 An eyewitness testified that a fourth man, dressed in camouflage pants,

emerged from the house and fired at the car until his gun jammed. Police found
a man in camouflage pants inside the house, questioned him, and found
gunpowder residue on his hands. This man, later identified as Chravis Shaw,
testified at trial but denied firing at the car, contending that he was inside the
house and upstairs throughout the incident. In his closing argument, in
addition to asserting self-defense, Brooks’ trial counsel suggested that Shaw
could have fired the fatal shot based upon the trajectory of the bullets and
Tinch’s possible location at the time shots were fired.
were found in the car.10

      Moreover, “counsel’s statements in closing argument were not

evidence, as Georgia law has long held. Indeed, the trial court so

instructed the jury.” (Citation omitted.) McKie, 

(declining to treat as admission counsel’s statement in closing

argument, “Yes, he’s a convicted felon, we admit that all day. It’s

true.”) (punctuation omitted). Here, the trial court likewise

instructed the jury that “[e]vidence does not include . . . opening or

closing remarks of the attorneys, or questions asked by the

attorneys,” and the jury instructions did not include the language of

OCGA § 16-3-21 (b) (2) barring the assertion of self-defense in the

commission of a felony. “It is presumed that the jury, which was

under oath, followed the trial court’s instructions unless there is

clear evidence to the contrary.” Menefee v. State, 

(4) (b) (

) (2017). Given the lack of evidence and the




      10  The forensic investigator found only what he testified was drug
paraphernalia and some “remnants of small green leafy material fragments”
in the vehicle. The only drugs found were in a plastic bag discovered by police
in the living room of the house from which Brooks emerged before the incident.
instructions the jury received, there was nothing from which the

jury could conclude that Brooks was barred from asserting a claim

of justification by self-defense based upon his counsel’s speculation

in closing argument that he may have been attempting to purchase

marijuana.

     Brooks’ claim that trial counsel was ineffective in failing to

assert a defense of justification by defense of habitation is also

without merit. Again citing Swanson, 

 (2), Brooks

contends that his trial counsel was deficient in failing to assert this

defense because slight evidence supported the theory that Tinch and

Gay committed an “unlawful . . . attack upon a habitation,” i.e., their

own vehicle, to commit two felonies: an armed robbery and

aggravated assault upon Brooks. See OCGA § 16-3-23. But this

interpretation is belied by the language of OCGA § 16-3-23, which

provides that deadly force may be used only when an “entry is made

or attempted in a violent and tumultuous manner” or “for the

purpose of committing a felony[.]” (Emphasis supplied.) OCGA § 16-

3-23 (1), (3). It does not contemplate the use of deadly force when no
entry is made or attempted.

     During the incident in question, neither Tinch nor Gay

“entered” the vehicle, as they were already inside at the time Brooks

entered it. Cf. Kendrick v. State, 

 (3) (

) (2010) (trial court did not err in denying request to charge on

defense of habitation when appellant chased down his stolen car and

shot driver; use of deadly force after theft complete not “necessary

to prevent or terminate the other’s unlawful entry into or attack

upon a motor vehicle”) (punctuation omitted). And it is doubtful in

any event whether Brooks could claim the victims’ vehicle as his

“habitation” as opposed to the “habitation” of the victims, the driver

and owner. See Hammock v. State, 

 (3) (

) (2004) (holding that, “for purposes of OCGA § 16-3-23, a

person’s habitation can be a particular space in a jointly-occupied

dwelling provided that such person has obtained the right to occupy

that space and exclude his co-inhabitants therefrom.”) (emphasis

supplied). And, as this Court has observed, “our precedents do not

clearly establish that a person can claim the defense of habitation to
protect the habitation of another.” Williams v. State, 

 (2) (

) (2018) (no deficient performance for failing

to request charge on defense of habitation when appellant, member

of nightclub performer’s entourage, claimed that victim and his

brothers attacked performer’s car, while appellant was in another

vehicle).

      Brooks claims that “there is no Georgia precedent holding that

the defense of habitation may only be claimed by the owner or

possessor of the habitation.”11 But this is not the correct analysis for

a claim of ineffective assistance of counsel. “The standard for

effectiveness of counsel does not require a lawyer to anticipate

changes in the law or pursue novel theories of defense.” (Citation

and punctuation omitted.) Sawyer v. State, 

 (2) (a)

(

) (2020). “An attorney’s decision about which defense



      11 We have found no Georgia precedent in which a defense of habitation

claim was asserted by a casual visitor or passenger in a vehicle as against the
actual owner or driver. In the cases cited by Brooks, the appellants either
owned and were driving the vehicle involved, as in Swanson, 

(1), and Benham v. State, 

 (

) (2004), or, like Gay,
were operating the vehicle with the permission and in the presence of the
owner, as in Coleman v. State, 

 (6) (a) (

) (2009).
to present is a question of trial strategy, and trial strategy, if

reasonable, does not constitute ineffective assistance of counsel.”

(Citation and punctuation omitted.) Mann v. State, 

(3) (a) (

) (2020). The record shows that trial counsel’s

defense of justification by self-defense was based upon the evidence

and an established legal theory and constituted a reasonable trial

strategy. Failing to interpose a novel defense of doubtful application

to these facts did not constitute deficiency. “[Brooks’] trial lawyer

did not perform deficiently when he failed to pursue a jury charge

that would have required an extension of existing precedents and

the adoption of an unproven theory of law.” Williams, 

(2).

       3. Finally, Brooks asserts as error the trial court’s denial of his

motion for a mistrial based on a witness’ testimony. During the

direct examination of Gay, the prosecutor asked if Gay knew the

individual identified as “Black Boy.” The following exchange

occurred:

       GAY: I seen him — I ain’t never really know him like that.
     All I heard he was, like, in jail for a long time, or
     something like that.
     DEFENSE COUNSEL: Objection. Move to strike.
     COURT: I sustain the objection. And I’m informing the
     jury that that is not part of the evidence, that was
     improper.

Brooks immediately moved for a mistrial. The trial court reserved

ruling on the motion, remarking that “I may well grant it at some

point.” The prosecutor inquired whether a curative instruction

might be of some benefit, and the trial court responded that it had

already instructed the jury that the statement was improper and not

part of the evidence. As Brooks acknowledges, however, the trial

court never ruled on his motion for mistrial, and even though the

trial court noted at a later time that it had not ruled on the motion,

Brooks never sought or received a ruling. “It is the duty of counsel

to obtain a ruling on his motions or objections,” and failure to do so

will result in waiver for purposes of appeal. (Citation and

punctuation omitted.) Smith v. Stacey, 

 (1) (

) (2007). See also Carman v. State, 

 (3) (

) (2018).
     Brooks contends that his enumeration of error nevertheless

should be reviewed for “plain error” under State v. Kelly, 

 (2) (a) (

) (2011). But in Georgia, plain error review

is limited to

     the sentencing phase of a trial resulting in the death
     penalty, a trial judge’s expression of opinion in violation
     of OCGA § 17-8-57, and a jury charge affecting
     substantial rights of the parties as provided under OCGA
     § 17-8-58 (b), [and, f]or cases tried after January 1, 2013,
     with regard to rulings on evidence, a court is allowed to
     consider plain errors affecting substantial rights although
     such errors were not brought to the attention of the court.
     OCGA § 24-1-103 (d).

(Citation and punctuation omitted.) Ross v. State, 

(2) n.6 (

) (2015). This Court has declined to extend plain

error analysis to other claims of error in the absence of a specific

provision by the General Assembly. See id.; Gates v. State, 

 (4) (

) (2016).

    Judgment affirmed in part and reversed in part, and case
remanded with direction. All the Justices concur.
                     DECIDED AUGUST 24, 2020.

     Murder. Fulton Superior Court. Before Judge Downs.

     Matthew K. Winchester, for appellant.

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

Juliana Sleeper, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General, Eric

C. Peters, Assistant Attorney General, for appellee.