Anthony v. State

• Decision Date: 04 April 2016
• Docket Number: No. S16A0059.,S16A0059.
• Citation: 785 S.E.2d 277,298 Ga. 827
• Parties: ANTHONY v. The STATE.
• Court: Georgia Supreme Court

298 Ga. 827

785 S.E.2d 277

ANTHONY

v.The STATE.

No. S16A0059.

Supreme Court of Georgia.

April 4, 2016.

Bentley C. Adams III, Columbus, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Robert Bradford Bickerstaff II, Asst. Dist. Atty., Julia Anne Fessenden Slater, Dist. Atty., Elizabeth M. Haase, Asst. Atty. Gen., for appellee.

BLACKWELL

, Justice.

Appellant Danny Lorenzo Anthony was tried by a Taylor County jury and convicted of murder. He appeals, contending that the evidence is legally insufficient to sustain his convictions and that the trial court erred when it denied his motion for pretrial immunity, when it failed to excuse a prospective juror for cause, when it admitted evidence of other acts of the appellant, and when it charged the jury. Upon our review of the record and briefs, we see no error, and we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that the appellant and his wife, Pam Anthony, raised horses. The Anthonys were longtime friends of Harry and Linda Nipper, and Harry cared for the Anthonys' horses as a farrier. In October 2010, Linda discovered—and told the appellant—that Harry and Pam were having an affair. Although Harry and Pam denied the affair, the appellant sent Harry a letter terminating his farrier services and, after a failed reconciliation attempt, made Pam leave their home in January 2011. Pam moved into a nearby trailer, filed for divorce several months later, and continued her affair with Harry. Twice thereafter, she reported to the Sheriff's Department that her car had a flat tire caused by a large cut, and the appellant later admitted that he slit her tire once when she had parked her car at a courthouse where she was to meet Harry. About two weeks before the shooting, the appellant told Linda that he planned to use legal means to take photos of Harry and Pam together, which he intended to use as evidence in his divorce case. When Linda expressed concern about the plan, the appellant said that he had something that would “handle” Harry, and the appellant showed Linda a gun that he was carrying.

On October 20, 2011, Harry told Pam that he would pick her up at the end of her driveway. The appellant drove by and stopped his truck just as Harry was arriving. Harry exited his truck, approached the appellant's truck, and told the appellant that, if he had something to say, he should come and say it. Pam heard two shots and ran to the front of her residence, where she found Harry leaning against a tree. Harry said, “I hit him, Pam; he shot me, he shot me, Pam.” The appellant then drove his truck through the front yard as Harry ran away. Harry fell to the ground, and the appellant exited his truck, stood over Harry with a gun, and cursed him. The appellant said that he wanted to see Harry “f* *k her now” and that the appellant was “going to watch [Harry] die.” The appellant also told Pam to “[s]ee what [Harry] could do for you now, see if you can f* *k him now.... [Y]ou're going to watch him die.” After walking away and calling 911, the appellant called Linda, calmly telling her that he “just shot Harry.... [H]e slapped me upside the head, so I shot him.” And when law enforcement officers arrived, the appellant told them about the affair and said that Harry “hit him upside the head and [the appellant] shot him.”

Responding officers discovered no bruising, bleeding, or other injury on the appellant's face or body. According to the medical examiner, Harry died from a single gunshot wound

that perforated his heart, and the shot was fired from an indeterminate range at least two to three feet away. The firearms examiner testified that the shot was fired from a distance of 24 to 30 inches away. Although Harry was a much larger man than the appellant, and although the appellant presented several witnesses in support of his theory of self-defense, he admitted during his own testimony that he told his daughter that he “screwed up,” that Harry “hit me first but I let my temper go away, I guess,” that “I lost control of my actions,” and that he could have driven away from the confrontation.

About the sufficiency of the evidence, the appellant argues that the State failed to prove beyond a reasonable doubt that he was not justified in shooting Harry. The appellant relies on his own testimony, as corroborated by Pam, that he carried a gun to protect himself from Harry, who had a reputation for violence and had threatened the appellant, that the appellant never intended a confrontation with Harry, and that Harry hit the appellant, knocking his glasses off, and was trying to pull him out of his truck window when the appellant fired his gun. But other evidence, including other testimony from the appellant himself, refuted the evidence of Harry's violent reputation and was not consistent with self-defense. The testimony that Harry was shot from at least 24 to 30 inches away indicates that he was not locked in combat with the appellant, there is no evidence that Harry was armed, his striking of the appellant did not cause any visible injury, and the appellant admitted that he could have driven away. See Payne v. State, 289 Ga. 691, 692(1)(b), 715 S.E.2d 104 (2011)

. Moreover, the appellant's subsequent actions and words arguably did not comport with self-defense. “As we have explained many times before, conflicts in the evidence, questions about the credibility of witnesses, and questions about the existence of justification are for the jury to resolve.” Grimes v. State, 293 Ga. 559, 560(1), 748 S.E.2d 441 (2013). The jury is free to reject any evidence in support of a justification defense and to accept the evidence that the shooting was not done in self-defense. See Cotton v. State, 297 Ga. 257, 258(1), 773 S.E.2d 242 (2015). Viewing the evidence in the light most favorable to the verdict, as we must, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the appellant was guilty of murder. See Jackson v. Virginia, 443 U.S. 307, 319(III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Before trial, the appellant filed a motion under OCGA § 16–3–24.2

for immunity from prosecution. Following a hearing, the trial court denied the motion, and the appellant now claims that the trial court erred when it determined that his justification defense was not strong enough to afford him immunity from prosecution. “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.” Sifuentes v. State, 293 Ga. 441, 444(2), 746 S.E.2d 127 (2013). To avoid trial based on a justification defense presented at an immunity hearing, “a defendant bears the burden of showing that he is entitled to immunity under OCGA § 16–3–24.2 by a preponderance of the evidence.” Bunn v. State, 284 Ga. 410, 413(3), 667 S.E.2d 605 (2008). See also Cotton, 297 Ga. at 258(2), 773 S.E.2d 242.

At the hearing on the appellant's motion, his lawyer presented the testimony of several witnesses regarding Harry's reputation for violence and a prior threat against the appellant, and those witnesses were cross-examined. The lawyer then stated in his place what he expected that the testimony of the appellant and Pam would show about the confrontation between Harry and the appellant. The prosecuting attorney explained what she anticipated would be shown by the State's evidence, but she did not call any witnesses, and she objected that it would be inappropriate for the trial court to rule that the appellant has immunity from prosecution based on the statement of his lawyer without any evidence about the confrontation.

“Attorneys are officers of the court and a statement to the court in their place is prima facie true and needs no further verification unless the same is required by the court or the opposite party. ” Sherman v. City of Atlanta,

293 Ga. 169, 173–174(4), 744 S.E.2d 689 (2013) (citations and punctuation omitted; emphasis in original). The statements-in-place by the appellant's lawyer were not a proper substitute for evidence at the hearing on the motion for immunity because the State did not accept those proffers but rather insisted that the appellant prove his immunity with traditional evidence. Id. at 173(4), 744 S.E.2d 689. Cf. State v. Cooper, 324 Ga.App. 32, 749 S.E.2d 35 (2013) (affirming the grant of a motion for immunity from prosecution and denying the State's motion to reopen the evidence, where the State never presented any evidence, made any proffer as to the omitted evidence, or cross-examined any of the defendant's witnesses at the hearing). Assuming that the statements-in-place of the appellant's lawyer nevertheless could be considered, there would be no reason why the trial court could not also consider the prosecuting attorney's statements about the confrontation between Harry and the appellant. And because the statements of the appellant's lawyer and the prosecuting attorney were consistent with the evidence subsequently presented at trial—which, as discussed in Division 1, supra, was sufficient for the jury to find beyond a reasonable doubt that the appellant did not act in self-defense—the trial court certainly was authorized to find that the appellant failed to show self-defense by a preponderance of the evidence. For the same reason, we reject the appellant's further argument that, under Hipp v. State, 293 Ga. 415, 746 S.E.2d 95 (2013), the trial court should have exercised its inherent authority to grant his renewed motion to dismiss at trial and on motion for new trial after the trial court had the benefit of hearing the appellant's own testimony. In short, the trial court was authorized to find that the appellant failed—before, during, and...