Allen v. State
| Docket Number | S23A0436 |
| Decision Date | 05 July 2023 |
| Parties | ALLEN v. THE STATE. |
| Court | Georgia Supreme Court |
Sean Allen appeals his conviction for felony murder for the shooting death of Daquan Gillett.[1] Allen argues that (1) the trial court erred when it failed to grant him immunity from prosecution based on self-defense; (2) the evidence presented at trial was insufficient to support his conviction; (3) the trial court erred by limiting his ability to argue the law of self-defense in closing argument; and (4) trial counsel was ineffective in several respects. We conclude that the evidence authorized the trial court to deny Allen's claim of immunity, the evidence was sufficient to support Allen's convictions, and the trial court's error in limiting Allen's closing argument did not prejudice his defense. Regarding Allen's claims of ineffective assistance of counsel, we conclude that one claim was not preserved for appellate review, and the other claims fail because Allen has failed to show prejudice from any of the other alleged instances of deficient performance. We therefore affirm.
After Allen was indicted for malice murder and other charges, he filed a motion for immunity from prosecution under OCGA § 163-24.2 based on a claim of self-defense. At a hearing on the motion, a video recording of the shooting (with no audio) was admitted into evidence, and Allen and another witness testified in support of Allen's motion.
The video recording[2] captured the shooting of Daquan Gillett at a Fayette County park and shows the following. Daquan[3] and his twin brother Davon[4] were playing with water guns in a parking lot with other teenagers. Allen[5] entered that area of the parking lot with several others, greeted Neeko Page,[6] then spoke to Davon. Daquan punched Allen, leading to a brief physical skirmish among the Gillett brothers and Allen's group. Allen dropped a firearm, after which Jonathan Alexander, who was with Allen's group, started hopping away.[7] Daquan apparently picked up the gun, at which point Allen started hitting him. Davon grabbed and held Allen.
Allen's friend, Jeffery Stephens,[8] was slammed against a car. Jamir Culbreath,[9] from Allen's group, pointed a gun or other object straight into the air. Culbreath and Daquan pointed guns at one another, then Daquan appears to have lowered his gun before he disappeared between two cars. Davon released Allen, who then appears to have retrieved a firearm and shot Daquan while Daquan was partially hidden from camera view between the cars.
Allen testified at the immunity hearing as follows. Allen's group went to the parking lot looking for Page so they would have a fifth player for their basketball game. When Allen asked Davon where Page was, Davon and Daquan asked Allen why he was talking to Davon, both brothers referring to Allen as the "opp"; Allen explained in his hearing testimony that this meant "enemy" or "opposition." Allen then started to walk away but was "hit from behind" or "jumped" by multiple people. Allen heard a gun fire, then realized his own gun had fallen from his pants. Allen saw Daquan pointing a gun at him and his friends. Davon then put Allen in a chokehold when Allen tried to retrieve his gun. When Davon had Allen in a chokehold, Davon told Allen that Allen was "over with" and was "fixing to die." Allen felt like he was going to pass out and his ears were ringing. While Allen was still in the chokehold Daquan hit him in the face with a gun. Allen again heard a gun fire, and Davon then let him go. Allen started to walk away, but saw Daquan pointing a gun, so he took a gun from Culbreath. Allen shot Daquan after he heard Davon telling Daquan to shoot Allen. "I felt like he was fixing to kill me," Allen testified. "He already told me that he was going to kill me; he just told his brother to shoot me."
Stephens gave testimony generally consistent with Allen's, testifying that Daquan was still pointing the gun at Allen, Stephens, and Culbreath when Allen "retaliated" and shot Daquan.[10] The trial court orally denied the motion for immunity at the conclusion of the hearing, stating that "a reasonable person would not feel that force was justified in this matter." The trial court found the following facts: Allen was not looking for Page when he came into the parking lot and approached Davon, Allen chose to hit Daquan when he had a chance to walk away from the fight, and Allen shot Daquan after Daquan had lowered the gun he was holding.
At the subsequent jury trial, in addition to viewing the surveillance video of the incident, the jury heard from several eyewitnesses for the State. Davon testified that when Allen approached his group on the day of the shooting, Allen called them "fake opps" or "opps" and mentioned "something about Instagram." Davon testified that Allen told Daquan to "stop talking before I hit you with this fire" or "shoot you with this fire," referring to the firearm visible in Allen's pants. Davon testified that he later tackled Allen so that Allen could not pick up his gun from the ground. Davon balked at saying that he put Allen in a chokehold but acknowledged he was "holding him tight." But when Davon let Allen go, Davon said, Allen retrieved another gun and shot Daquan.[11]
A young woman who was at the water fight, Mariah Washington, testified that when Allen approached her group, he stated, "this is the guy that was talking," but she didn't know which Gillett twin he was referencing. Both Washington and another young woman, Kierra Munford, recalled that Page was at the water fight and greeted Allen with a handshake when he approached; Munford recalled hearing Allen calling out Page's name as he approached the group. Munford's boyfriend, Dejuan Thurman, testified that the physical altercation began when Allen approached the twins and said something to Davon like "why you trying to be a fake opp."
Munford testified that, a few months before the shooting, Allen had posted on Instagram a video of Daquan rapping, leading to an unfriendly exchange on Instagram between Allen and Daquan. Allen's Instagram account was deleted the morning after the shooting. The State elicited vague testimony from a detective that law enforcement found evidence "in Mr. Alexander's phone that there was some indication or planning of an altercation at this park." The medical examiner testified that Daquan died from gunshot wounds to the back of his head and his left thigh, with the relative amount of bleeding from each suggesting that the wound to the head occurred first.
Allen testified at trial as follows. Before the day of the shooting, Allen had no disputes with the Gillett brothers. Allen had just greeted Page at the park when Davon approached him saying, "why you here; you opp; we don't mess with you"; both brothers referred to Allen as "opp." Allen replied that he was not worried about being "opp" and was simply looking for Page. Allen did not threaten to shoot anyone that day. Allen was tussling with Daquan and Daquan's hand was on Allen's gun when it discharged before falling to the ground. After Allen picked up his weapon, he told Daquan to "let it go" and end the fight. But when Allen's gun fell to the ground again, one of the Gilletts' friends punched Allen in the face, Davon put him in a chokehold, and Daquan hit him with a gun. Davon said, "you over with, you fixing to die" while choking Allen. Allen shot Daquan in self-defense while Daquan was pointing a gun at him, and Davon was saying to Daquan, "shoot, shoot."
Allen also called several other witnesses at trial. Stephens again testified, giving an account similar to Allen's. Stephens testified that when Allen shot Daquan, Daquan was in between cars but still pointing a gun at Allen. Jamir Culbreath offered similar testimony. Culbreath testified that Daquan was still pointing a gun at him and Allen, and Davon was saying "shoot, shoot," when Allen took the gun that Culbreath was holding and shot Daquan. Two other friends of Allen testified that although they did not actually meet up with Allen's group prior to the shooting, they had planned to meet simply to play basketball.
1. Allen argues that the trial court erred by denying his motion for immunity. We disagree.
With some exceptions, a person who uses threats or force in accordance with OCGA § 16-3-21 is immune from criminal prosecution. See OCGA § 16-3-24.2. OCGA § 16-3-21 (a) provides a standard with both subjective and objective components: a person generally "is justified in using force which is intended or likely to cause death or great bodily harm . . . if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person[.]" In addition to showing that the defendant actually believed that his use of force was necessary, in order "[t]o establish justification for killing another, a defendant must show the circumstances were such as to excite the fears of a reasonable person" that he or a third person faced death or great bodily injury; in other words, a defendant must show that his fear was objectively reasonable. Howard v. State, 298 Ga. 396, 398 (1) (782 S.E.2d 255) (2016) (citation and punctuation omitted). "To prevail on a motion for immunity under OCGA § 16-3-24.2, a defendant must establish his justification defense by a preponderance of the evidence." Ellison v. State, 313 Ga. 107, 110 (868 S.E.2d 189) (2022).
"In reviewing the denial of a motion for pretrial immunity, we must view the evidence in the light most favorable to the trial court's ruling and accept the trial court's findings of fact and credibility determinations if there is any evidence to support them." Id. (citation and punctuation omitted). "In doing so, however, w...
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