Allen v. State

• Decision Date: 12 January 2004
• Docket Number: No. S03A1652.,S03A1652.
• Citation: 591 S.E.2d 784,277 Ga. 502
• Parties: ALLEN v. The STATE.
• Court: Georgia Supreme Court

591 S.E.2d 784

277 Ga. 502

ALLEN v. The STATE.

No. S03A1652.

Supreme Court of Georgia.

January 12, 2004.

Dell Jackson, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Peggy R. Katz, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Jason C. Fisher, Asst. Atty. Gen., for appellee. HUNSTEIN, Justice.

Randy Allen was convicted of murder, felony murder, aggravated assault and possession of a firearm during the commission of a felony arising out of the shooting death of Dhavell Carter.¹ Allen appeals the denial of his motion for new trial contending that (1) the verdict was contrary to the evidence, (2) the State committed prosecutorial misconduct, and (3) trial counsel provided ineffective assistance. Finding no error, we affirm.

1. Evidence was adduced at trial that on July 15, 2000, Carter, Benjamin Kuku and Carter's cousin spotted Allen driving into the parking lot of an apartment complex they were visiting. Carter approached Allen and accused him of breaking his brother's car windows. Allen exited his vehicle and shot Carter twice with a revolver, the first in the chest and the second through Carter's left arm into his head. Both shots inflicted fatal wounds. Eyewitnesses testified that Carter was unarmed and no weapons were discovered at the scene by emergency personnel. After the shooting Allen fled on foot. At some point he sustained a gunshot wound to the bottom of his foot; he was arrested after seeking medical treatment at Grady Hospital.

Allen testified at trial that Carter had a gun in his hand as he approached him. He claimed he fired in self-defense and that Carter's cousin then used Carter's weapon to shoot Allen as he fled.

The evidence presented by the State was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Allen did not act in self-defense in shooting Carter and that Allen was guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Allen's contentions alleging prosecutorial misconduct present no reversible error. The first alleged instance involved the cross-examination of Allen in which the prosecutor questioned Allen why he made no mention to the police officer who detained him at Grady Hospital that he had been shot during the altercation with Carter. The transcript reveals that the trial court sustained Allen's objections to the question and gave a curative instruction that was adequate to ensure a fair trial. Defense counsel neither objected to the curative instruction nor moved for a mistrial following issuance of the curative instruction. Accordingly, Allen has waived this issue on appeal. See Kelly v. State, 242 Ga.App. 30(3), 528 S.E.2d 812 (2000). Allen's remaining claims of prosecutorial misconduct² are similarly not reviewable on appeal because Allen failed in each instance to object at trial. See Carr v. State, 275 Ga. 185(2), 563 S.E.2d 850 (2002).

3. Allen raises five claims relating to ineffective assistance of counsel. The burden was on Allen to show that trial counsel's performance fell below a reasonable standard of conduct and that a reasonable probability exists that the outcome of the case would have been different but for the deficient performance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 325 S.E.2d 362 (1985). Allen has failed to make the requisite showings.

(a) Allen contends that his counsel was ineffective for failing to move for a mistrial when the State questioned him about his post-arrest silence at trial. The transcript reveals that the State's inquiry into Allen's silence was neither manifestly intended to comment on his failure to testify nor was it of such character that it would prejudice the jury on his failure to testify. LeMay v. State, 265 Ga. 73(4), 453 S.E.2d 737 (1995). Because the trial court sustained the defense's objection to the questioning and gave a curative instruction to the jury, Allen cannot show either that counsel's tactical decision not to move for a mistrial fell outside "the wide range of reasonably effective assistance [cit.]," Jefferson v. Zant, 263 Ga. 316, 320, 431 S.E.2d 110 (1993), or that he would have been granted a mistrial but for counsel's decision not to move for one.

(b) Given eyewitness testimony that the victim was either on the ground or falling at the time Allen shot him in the head and the medical examiner's acknowledgment that the victim's head wound was consistent with the victim being on the ground at the time the injury was inflicted, defense counsel was not ineffective for failing to object or request a mistrial when the prosecutor argued at closing that Allen slayed Carter with a fatal shot to the head as Carter lay helpless on the ground. See Messick v. State, 276 Ga. 528, 529, 580 S.E.2d 213 (2003) (during closing, counsel may draw reasonable inferences or deductions from the evidence).

(c) We need not determine whether the prosecutor misrepresented the law of justification during closing argument because qualified jurors under oath are presumed to follow the instructions of the trial court, Holmes v. State, 273 Ga. 644(5)(c), 543 S.E.2d 688 (2001), and Allen has not shown that the jurors were so confused or misled by the State's argument that they ignored the trial court's proper instructions setting forth the law of justification. Accordingly, Allen has failed to...