Anthony v. State

¶1In the Supreme Court of Georgia

¶2 Decided: April 19, 2021

¶3 S21A0089. ANTHONY v. THE STATE.

¶4 WARREN, Justice.

¶5 Terrone Anthony was convicted of malice murder, armed

¶6robbery, and possession of a firearm during the commission of a

¶7felony in connection with the shooting death of Kavader McKibben.1

¶8 1 The crimes were committed on December 4, 2009. On December 22, 2009, a Fulton County grand jury indicted Anthony and his co-defendant, Aaron Jackson, for malice murder, felony murder predicated on armed robbery, felony murder predicated on aggravated assault, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. Anthony alone was indicted for possession of a firearm by a convicted felon and a third count of felony murder predicated on that firearm offense. At a joint trial held from August 18 to 23, 2011, the trial court directed verdicts of not guilty for possession of a firearm by a convicted felon and the felony murder count predicated on that offense. A jury found Anthony guilty of all remaining counts and found Jackson not guilty on all counts. On August 25, 2011, the trial court sentenced Anthony to serve life in prison for malice murder, a concurrent term of 20 years for armed robbery, and a consecutive term of 5 years for possession of a firearm during the commission of a felony. The two remaining felony murder counts were vacated by operation of law, and the trial court merged the aggravated assault count into the malice murder count. Anthony timely filed a motion for new trial on August 25, 2011, which he amended through new counsel on September 11, 2019. The trial court denied the amended motion on October 22, 2019. Anthony timely filed a notice of On appeal, Anthony contends that his trial counsel provided

¶9constitutionally ineffective assistance in four ways. We disagree

¶10and affirm Anthony’s convictions.

¶11 The evidence presented at Anthony’s trial showed the

¶12following. 2 On the evening of December 4, 2009, Anthony and an

¶13accomplice entered a liquor store where McKibben was working.

¶14Anthony—who was wearing a ski mask—pointed a firearm at

¶15McKibben while the accomplice searched McKibben’s pockets and

¶16took belongings from him and money from a cash register.

¶17McKibben’s co-worker, Roland Williams, began walking toward the

¶18back of the store, and Anthony followed. A shoot-out ensued shortly

¶19thereafter. The store owner pulled a gun and fired at Anthony,

¶20striking him in the leg. Anthony fired back, and in doing so struck

¶21McKibben three times. As Anthony reached to open the door and

¶22appeal on November 19, 2019, which he amended the next day. The case was docketed in this Court to the term beginning in December 2020 and submitted for a decision on the briefs.

¶23 2 Anthony does not raise the sufficiency of the evidence on appeal. Therefore, under Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020), we do not consider sufficiency of the evidence sua sponte. 2 leave, the owner shot Anthony in the arm. Anthony limped out of

¶24the store, holding his arm. A security guard across the street

¶25followed Anthony to a nearby house where Anthony stopped, having

¶26left behind a trail of blood from the liquor store. When police officers

¶27arrived, they found Anthony bleeding profusely, clad in the same

¶28camouflage jacket that witnesses described the shooter wearing.

¶29McKibben died at the liquor store from his wounds. Anthony and his

¶30friend, Aaron Jackson, were arrested.

¶31 At trial, video surveillance of the shoot-out was played for the

¶32jury. Anthony testified and admitted that he entered the store while

¶33wearing a mask, held a gun while his accomplice took money from

¶34McKibben, ran toward the back of the store because he thought an

¶35employee was probably going to get a gun, and then fired his gun at

¶36the store owner after the owner shot Anthony in the leg. However,

¶37he denied that he planned to shoot anyone or intended to do so when

¶38he entered the liquor store. Anthony also testified that his

¶39accomplice was not Jackson, but another person. The trial court

¶40charged the jury on mutual combat and justification. The jury found

¶41 3 Anthony guilty of malice murder, armed robbery, the firearm

¶42offense, and other offenses that were vacated by operation of law or

¶43merged for sentencing purposes, and found Jackson not guilty on all

¶44counts.

¶45 1. To prevail on a claim of ineffective assistance of counsel, a

¶46defendant generally must show that counsel’s performance was

¶47deficient and that the deficient performance resulted in prejudice to

¶48the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695

¶49(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,

¶50356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a

¶51defendant must demonstrate that his attorney “performed at trial in

¶52an objectively unreasonable way considering all the circumstances

¶53and in the light of prevailing professional norms.” Romer v. State,

¶54293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466

¶55U.S. at 687-688. This requires a defendant to overcome the “strong

¶56presumption” that trial counsel’s performance was adequate.

¶57Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation

¶58and punctuation omitted). To carry the burden of overcoming this

¶59 4 presumption, a defendant “must show that no reasonable lawyer

¶60would have done what his lawyer did, or would have failed to do

¶61what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d

¶62221) (2016). “In particular, decisions regarding trial tactics and

¶63strategy may form the basis for an ineffectiveness claim only if they

¶64were so patently unreasonable that no competent attorney would

¶65have followed such a course.” Id. (citation and punctuation omitted).

¶66To satisfy the prejudice prong, a defendant must establish a

¶67reasonable probability that, in the absence of counsel’s deficient

¶68performance, the result of the trial would have been different. See

¶69Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her

¶70burden of proving either prong of the Strickland test, the reviewing

¶71court does not have to examine the other prong.” Lawrence v. State,

¶72286 Ga. 533, 533-534 (690 SE2d 801) (2010).

¶73 2. Anthony’s first claim is that his trial counsel was ineffective

¶74because he did not seek a mistrial when the State discovered that

¶75the indictment mistakenly alleged that Anthony was a convicted

¶76felon. This claim fails, however, because the record shows that trial

¶77 5 counsel made a reasonable, strategic decision to request a curative

¶78instruction and chose not to request a mistrial.

¶79 Anthony was charged with possession of a firearm by a

¶80convicted felon based on a prior burglary conviction and was charged

¶81with felony murder predicated on that firearm offense; the

¶82indictment charging those counts was read to the jury. However,

¶83shortly before the State rested its case at trial, the prosecutor

¶84discovered that Anthony was in fact a first-offender probationer and

¶85not a convicted felon. As a result, the prosecutor moved to nolle pros

¶86the two convicted-felon counts and asked the trial court for a

¶87curative instruction. Anthony, Jackson, and their attorneys

¶88discussed the issue, and Anthony’s counsel announced that he would

¶89not be requesting a mistrial, only a curative instruction. The trial

¶90court told Anthony that he had “to pick. I’m neutral as to which one,

¶91but I need an answer.” Anthony himself confirmed that he wanted

¶92to proceed in the way that his counsel announced: to request a

¶93curative instruction instead of a mistrial. The trial court then gave

¶94the following curative instruction that his counsel and Jackson’s

¶95 6 counsel proposed:

¶96 [A]t the commencement of this trial, I read the indictment to you, and I read to you a charge that alleged that Mr. Terrone Anthony was a convicted felon and a charge of felony murder as to Mr. Terrone Anthony based upon the claim that he was a convicted felon. Let me now advise you that the State has advised me that count 8 is a mistake. Terrone Anthony is actually not a convicted felon, so this count is now removed from your consideration in this indictment, as is count 3, which is the felony murder charge based upon that claim. You are, therefore, not to consider either of these charges. You are to disregard anything that I might have read to you or said to you associated with those charges because they are, in fact, a mistake by the State.

¶97The trial court later directed verdicts of not guilty on the two counts

¶98at issue. At the hearing on the motion for new trial, Anthony

¶99testified that his trial counsel told him that a mistrial was “nothing,”

¶100that Anthony should not “go for” a mistrial, and that trial counsel

¶101“like[d] the jury that we selected.” Trial counsel testified that he

¶102and Jackson’s attorney “liked the jury” and that he thought the trial

¶103court “had cured” the problem with the indictment with its

¶104instruction.

¶105 Given that the convicted-felon counts of the indictment were

¶106 7 read only once, that trial counsel wanted to try Anthony’s case in

¶107front of the jury that he had already selected, that Anthony agreed

¶108to trial counsel’s recommendation to seek a curative instruction and

¶109not a mistrial, and that the trial court informed the jury that the

¶110State had made a “mistake” in the charges because Anthony was not

¶111actually a convicted felon, Anthony has failed to show that his trial

¶112counsel’s decision not to request a mistrial was objectively

¶113unreasonable. See, e.g., Lynn v. State, 310 Ga. 608, 613-614 (852

¶114SE2d 843) (2020) (considering that a witness’s reference to a prior

¶115jury in the case was brief and counsel’s explanations for the decision

¶116not to move for mistrial were reasonable, defendant did not show

¶117that that decision was constitutionally deficient); State v. Goff, 308

¶118Ga. 330, 335 (840 SE2d 359) (2020) (given the fleeting, nonspecific

¶119nature of trial counsel’s reference to the defendant’s probation

¶120status, trial counsel was not objectively unreasonable when he did

¶121not move for a mistrial because he thought “‘we had a pretty good

¶122jury and a pretty good trial going’”).

¶123 3. Anthony claims that his trial counsel was ineffective

¶124 8 because he put Anthony on the witness stand to admit that he was

¶125one of the people who robbed the liquor store and that he shot

¶126McKibben. We disagree.

¶127 The primary thrust of this claim is that trial counsel “forced”

¶128Anthony to testify and admit to his role in the robbery and shooting,

¶129even though Anthony wanted to present a defense that he had gone

¶130to the liquor store only to collect money that McKibben owed

¶131Anthony’s friend for drugs—a theory that he claims trial counsel did

¶132not investigate. Anthony relies on his testimony at the hearing on

¶133his motion for new trial to support this claim. Prior to his testimony

¶134at trial, however, Anthony personally affirmed his decision to

¶135testify. And the trial court was authorized to credit trial counsel’s

¶136testimony at the hearing on Anthony’s motion for new trial that trial

¶137counsel recommended to Anthony that he not testify, and that

¶138counsel had never been informed about the alleged drug-debt theory

¶139Anthony later described.

¶140 Although the trial court made no express factual findings or

¶141credibility determinations in its order denying Anthony’s motion for

¶142 9 new trial, it was nonetheless “authorized to credit the testimony of

¶143[Anthony’s] counsel,” “[a]nd in the absence of explicit factual and

¶144credibility findings by the trial court, we presume implicit findings

¶145were made supporting the trial court’s decision.” Davis v. State, 306

¶146Ga. 430, 432-433 (831 SE2d 804) (2019) (citation and punctuation

¶147omitted). Accordingly, even though Anthony’s “testimony

¶148contradicted that of [his counsel], the trial court implicitly credited

¶149[counsel’s] version of events when it denied [Anthony’s] ineffective

¶150assistance claim, and we accept the trial court’s factual findings.”

¶151Williams v. State, 308 Ga. 532, 536 (842 SE2d 1) (2020). As a result,

¶152Anthony has failed to show that his trial counsel’s performance was

¶153constitutionally deficient. See Brooks v. State, 305 Ga. 600, 607-608

¶154(826 SE2d 45) (2019) (defendant failed to show that trial counsel

¶155performed deficiently by failing to inform him adequately of his right

¶156to testify, where the trial court found credible counsel’s testimony

¶157that she had advised defendant of his right to testify, that it was not

¶158in his best interest to testify, and that the decision to testify was

¶159ultimately his to make).

¶160 10  4. Anthony claims that his trial counsel was ineffective

¶161because counsel failed to argue meaningfully on Anthony’s behalf in

¶162closing argument. This claim also fails, however, because the record

¶163shows that counsel’s closing argument was strategic and was not

¶164objectively unreasonable.

¶165 To advance his argument, Anthony primarily relies on the first

¶166portion of his counsel’s closing argument: “I don’t have a defense.

¶167None whatsoever. Not at all. A defense is, I wasn’t involved. My

¶168client was involved. His gun, his bullet, his hand. He fired the fatal

¶169shot. I don’t have a defense. Not at all. None whatsoever.” Anthony

¶170contends that these words constitute an admission of counsel’s

¶171ineffectiveness and, more specifically, a demonstration that he did

¶172not intend to prepare a plausible defense like mutual combat and a

¶173failure to hold the State to its burden of proof.

¶174 “An attorney’s decision about which defense to present is a

¶175question of trial strategy.” Hills v. State, 306 Ga. 800, 807 (833 SE2d

¶176515) (2019) (citation and punctuation omitted). “Unless the choice

¶177of strategy is objectively unreasonable, such that no competent trial

¶178 11 counsel would have pursued such a course, we will not second-guess

¶179counsel’s decisions in this regard.” Id. at 807 (citation and

¶180punctuation omitted). With respect to closing argument, “[d]efense

¶181counsel is permitted wide latitude . . . and is not ineffective simply

¶182because another attorney might have used different language or

¶183placed a different emphasis on the evidence.” Merritt v. State, 310

¶184Ga. 433, 435 (851 SE2d 555) (2020) (citation and punctuation

¶185omitted). Moreover, “[a] closing argument is to be judged in the

¶186context in which it is made.” Styles v. State, 308 Ga. 624, 629 (842

¶187SE2d 869) (2020) (citation and punctuation omitted).

¶188 Here, a review of the whole closing argument, together with

¶189counsel’s testimony at the hearing on the motion for new trial, shows

¶190that trial counsel developed the following defense strategy after

¶191discussion with Anthony: conceding guilt of both armed robbery and

¶192the firearm charge in an effort to maintain credibility with the jury;

¶193convincing the jury that Anthony lacked the intent to commit malice

¶194murder; and making a causation argument to negate the felony-

¶195murder charge because Anthony discharged his firearm only after

¶196 12 completing the robbery and in the course of trying to protect himself.

¶197Thus, even though trial counsel disclaimed Anthony’s defense to

¶198armed robbery or the firearm charge, the full context of his closing

¶199argument makes clear that he was arguing that the jury should find

¶200Anthony not guilty of the more serious murder charges. Indeed, the

¶201record shows that at the time of closing argument, counsel’s choices

¶202were limited: the evidence of Anthony’s involvement in the armed

¶203robbery and the shooting was overwhelming, and Anthony had

¶204insisted on testifying and had specifically admitted his involvement

¶205in the robbery and shooting. Moreover, in contrast to Anthony’s

¶206testimony at the motion for new trial hearing, trial counsel testified

¶207that Anthony never said that he entered the liquor store to help a

¶208friend confront McKibben about a drug debt, thus undercutting the

¶209defense theory that Anthony claimed he wanted to advance at trial.

¶210 Under these circumstances, trial counsel’s strategic decisions

¶211about Anthony’s defense and how to argue it in closing were not

¶212objectively unreasonable and therefore did not amount to

¶213constitutionally deficient performance. See, e.g., Blackwell v. State,

¶214 13 302 Ga. 820, 825-826 (809 SE2d 727) (2018) (it is not patently

¶215unreasonable for trial counsel to make a strategic decision to base

¶216the defense on the evidence at trial and on the defendant’s consistent

¶217account, rather than risk losing credibility with jury); Muller v.

¶218State, 284 Ga. 70, 71 (663 SE2d 206) (2008) (it was a reasonable

¶219strategy to argue that the defendant lacked the malicious intent

¶220necessary to support a malice-murder conviction when any other

¶221defense was problematic). 3

¶222 5. Finally, Anthony claims that his trial counsel was

¶223ineffective by explicitly conceding in closing argument Anthony’s

¶224guilt of armed robbery and, as a result, implicitly conceding his guilt

¶225of felony murder. We again disagree.

¶226 To support his claim, Anthony points to the following portion

¶227of counsel’s closing argument:

¶228 3 We note that because no convictions were entered on Anthony’s felony murder charges, his ineffective assistance claims are moot to the extent they pertain to the portions of trial counsel’s closing argument that reference felony murder. See Darville v. State, 289 Ga. 698, 702 (715 SE2d 110) (2011) (defendant’s contention that counsel was ineffective by failing to object to the omission of a particular jury instruction on felony murder was moot because defendant was found guilty of malice murder and no conviction was entered on the felony murder charge). 14  And he’s wrong for that and guilty of armed robbery, so we don’t even have to talk about that. So when you go back in the back, you just check that off; guilty of armed robbery. That’s Count Number 5. He’s guilty of possession of a firearm during the commission of a felony. Just check that off. He’s guilty of that. He told you that.

¶229Anthony’s complaint about this concession is closely related to the

¶230preceding claim that we considered and rejected above in Division 4.

¶231Here, however, Anthony more specifically argues that conceding

¶232guilt of armed robbery was tantamount to a guilty plea that was

¶233entered without his consent or a valid waiver of his constitutional

¶234rights, and that this concession was improper and presumptively

¶235prejudicial.

¶236 In Florida v. Nixon, 543 U.S. 175, 187 (125 SCt 551, 160 LE2d

¶237565) (2004), the United States Supreme Court made clear that

¶238although trial counsel “undoubtedly has a duty to consult with the

¶239client regarding ‘important decisions,’ including questions of

¶240overarching defense strategy,” id. at 187 (citing Strickland, 455 U.S.

¶241at 688; emphasis supplied), “trial counsel is not obligated to obtain

¶242client consent as to decisions regarding trial strategy,” Hendrix v.

¶243 15 State, 298 Ga. 60, 64 n.3 (779 SE2d 322) (2015) (citing Nixon and

¶244offering as examples of decisions requiring client consent “decisions

¶245regarding whether to plead guilty, whether to waive a jury trial,

¶246whether to waive the right to testify, and whether to pursue an

¶247appeal”) (emphasis in original). Counsel’s strategic choice to

¶248concede guilt therefore “is not impeded by any blanket rule

¶249demanding the defendant’s explicit consent,” Nixon, 543 U.S. at 192;

¶250likewise, counsel “is not per se ineffective for adopting a strategy to

¶251concede guilt, even if his client does not expressly consent to that

¶252strategy,” Harris v. State, Case No. A20A2054, 2021 WL 854897, at

¶253*5 (Mar. 8, 2021) (citing Nixon). Cf. McCoy v. Louisiana, ___ U.S.

¶254___, ___ (138 SCt 1500, 1510, 1511, 200 LE2d 821) (2018) (holding

¶255that “counsel may not admit her client’s guilt of a charged crime over

¶256the client’s intransigent objection to that admission,” and “counsel’s

¶257admission of a client’s guilt over the client’s express objection is error

¶258structural in kind,” not requiring any showing of prejudice). To that

¶259end, counsel’s strategic decision to concede guilt is typically

¶260reviewed under the familiar Strickland standard, see Nixon, 543

¶261 16 U.S. at 192, and if undisputed evidence of a defendant’s guilt on a

¶262lesser charge has been presented at trial, it is not an objectively

¶263unreasonable trial strategy to concede guilt of that offense “in an

¶264effort to avoid a conviction on the more serious murder charges.”

¶265Favors v. State, 296 Ga. 842, 846 (770 SE2d 855) (2015). Applying

¶266the relevant principles of an attorney’s duty to consult and analyzing

¶267trial counsel’s strategy through the lens of Strickland, the Supreme

¶268Court in Nixon rejected the defendant’s claim that trial counsel’s

¶269concession of guilt was the “functional equivalent of a guilty plea”

¶270because the defendant “retained the rights accorded a defendant in

¶271a criminal trial.” Nixon, 543 U.S at 188.

¶272 So too here. The record shows that trial counsel’s concession of

¶273Anthony’s guilt of armed robbery was part and parcel of his trial

¶274strategy—which, as we have already explained above, was not

¶275objectively unreasonable—of maintaining credibility with the jury,

¶276convincing the jury that Anthony lacked the intent to commit malice

¶277murder, and making a causation argument on the felony-murder

¶278charge. That strategy did not require Anthony’s consent, and

¶279 17 Anthony made no “intransigent objection” to counsel’s concession of

¶280guilt of armed robbery; to the contrary, counsel’s defense strategy

¶281was wholly consistent with Anthony’s own testimony at trial. See

¶282Nixon, 543 U.S. at 187, 192. Cf. McCoy, ___ U.S. at ___ (138 SCt at

¶2831510). Moreover, just as in Nixon, counsel’s concession of Anthony’s

¶284guilt of lesser offenses is not tantamount to a guilty plea, because it

¶285occurred in the context of a jury trial, and only after the State was

¶286required to present evidence establishing the essential elements of

¶287the crimes with which Anthony was charged, the defense was

¶288afforded the right to confront and cross-examine witnesses for the

¶289prosecution, and Anthony made an informed decision to waive his

¶290privilege against self-incrimination. See Nixon, 543 U.S. at 188-189.

¶291In light of the overwhelming evidence of Anthony’s guilt of the lesser

¶292offenses of armed robbery and the firearm offense, it was not an

¶293objectively unreasonable trial strategy for counsel to concede guilt

¶294of those offenses in an attempt to avoid Anthony being convicted of

¶295 18 a more serious murder charge. See Favors, 296 Ga. at 846.4

¶296 Judgment affirmed. All the Justices concur.

¶297 4 Notably, trial counsel’s concession—to which Anthony did not object— could not amount to the kind of structural error that could raise a presumption of prejudice. See Nixon, 543 U.S. at 193. Cf. McCoy, ___ U.S. at ___ (138 SCt at 1511). We further note that Anthony’s argument that trial counsel implicitly conceded Anthony’s guilt of felony murder is moot because no convictions were entered on the felony-murder charges. See Darville, 289 Ga. at 702. 19