Benham v. State

• Decision Date: 12 January 2004
• Docket Number: No. S03G1015.,S03G1015.
• Citation: 277 Ga. 516,591 S.E.2d 824
• Parties: BENHAM v. The STATE.
• Court: Georgia Supreme Court

591 S.E.2d 824

277 Ga. 516

BENHAM v. The STATE.

No. S03G1015.

Supreme Court of Georgia.

January 12, 2004.

Vaughan & Evans, Donald C. Evans, Jr., Lance T. McCoy, Cartersville, for appellant.

Leigh E. Patterson, Dist. Atty., Mary Beth Gregoire, Asst. Dist. Atty., for appellee

THOMPSON, Justice.

In this granted certiorari, we hold that Jamerica Benham was denied constitutionally effective assistance of trial counsel by counsel's failure to request a jury instruction on the use of force in defense of habitation as provided in OCGA § 16-3-23. To the extent that the Court of Appeals ruled otherwise in Benham v. State, 260 Ga.App. 243(5)(b), 581 S.E.2d 586 (2003), that case is hereby reversed.

Benham was convicted of the aggravated assault of Farrah Kennemore and was sentenced to serve ten years in prison plus ten years on probation. The trial evidence showed that there was a history of animosity between Benham and Kennemore due to the fact that Kennemore's husband had fathered children with both women. One week earlier, the two women had argued and Kennemore accused Benham of "disrespecting" her. On the day in question, Kennemore went to the apartment of her sister-in-law who had been babysitting for Kennemore's son. Shortly thereafter, Benham drove up and parked in front of the building; she had three young children in her car. Benham remained in her car with her children while she engaged in a conversation with neighborhood friends. As Kennemore prepared to leave the apartment, she told her sister-in-law, "I'm going to go out there and front [sic] [Benham]." Despite admonitions from her sister-in-law to avoid a confrontation, Kennemore left the building and approached the front passenger window of Benham's car. Over the head of Benham's eight-year-old son who was seated in the front passenger seat, Kennemore told Benham, "you ain't going to keep disrespecting me." A heated conversation ensued between the two women. Kennemore then walked around the car and confronted Benham at the driver's side where the argument escalated through the open window. Although there were several onlookers, no one was in a position to observe how the physical altercation began. Kennemore admitted to throwing the first blow, but only after Benham grabbed her shirt. Benham testified that Kennemore reached into the car window and began clawing at her face and although she tried to fight back, Kennemore would not let go of her face; Benham then grabbed a box cutter from the console and repeatedly slashed Kennemore. Observers saw Kennemore reach inside the car window to strike at Benham. Another one of Kennemore's sisters-in-law twice attempted to pull her away from Benham's car, but she resisted both attempts, stating "hell no, bitch," while continuing to fight through the open window. While this was going on, Benham tried to drive away but her path was blocked by onlookers in the street. Ultimately, Kennemore was pulled away from the car and Benham was able to drive from the scene.

In order to prevail on a claim of ineffective assistance of trial counsel, a defendant must show that his trial counsel's performance fell below an objective standard of reasonableness, and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Doctor v. State, 275 Ga. 612(5), 571 S.E.2d 347 (2002).

At trial, defense counsel proffered a justification defense pursuant to OCGA § 16-3-21, and the jury was charged accordingly. The jury was thus authorized to consider a defense of self-defense only if they found that Benham reasonably believed her use of deadly force was necessary to prevent death or great bodily injury to herself or others, or to prevent a forcible felony. Id. The jury was also instructed under OCGA § 16-3-21(b)(1) that they must reject the justification defense if they found that Benham initially provoked the attack with the intent to use force as an excuse to inflict bodily harm on her assailant.

Counsel did not request a jury instruction on defense of habitation under OCGA § 16-3-23(1), and none was given. That statute authorizes the use of force which is intended to cause death or great bodily injury to prevent or terminate unlawful entry into or attack upon a "habitation" (including a motor vehicle under OCGA § 16-3-24.1) if the "entry is made or attempted in a violent and tumultuous manner" and there is a reasonable belief that the entry is made "for the purpose of assaulting or offering personal violence to any person" therein. The uncontroverted evidence adduced at trial clearly would have authorized such a charge. Not only did Benham and Kennemore both testify that the latter landed the first blow through the car window, eyewitnesses also testified that Kennemore reached into the car and struck Benham, and that it took two attempts to restrain Kennemore from continuing the attack.¹

At the hearing on the motion for new trial, defense counsel was asked why she failed to request a charge pursuant to OCGA § 16-3-23(1). She responded that she considered self-defense to be Benham's best defense, and that she wanted the jury to believe Benham was in fear for her safety and the safety of her children, not that she was merely protecting her vehicle. From this response, it is evident that defense counsel failed to appreciate that the defense of habitation may have justified the use of deadly force in this case even if that amount of force was not necessarily required to repel Kennemore's attack. In failing to adequately research and understand the defenses available to her client, defense counsel rendered assistance that fell below the minimum standard set forth in Strickland, supra.

The Court of Appeals characterized counsel's decision as trial strategy, and it found no error. But "[i]nvoking the words `tactics' and `strategy' does not automatically immunize trial counsel against a claim that a tactical decision or strategic maneuver was an unreasonable one no competent attorney would have made under the same circumstances. `Tactics' and `strategy' provide no talismanic protection against an ineffective assistance of counsel claim." Braithwaite v. State, 275 Ga. 884, 895, 572 S.E.2d 612 (2002) (Hunstein, J., dissenting). Even assuming that trial counsel in this case knowingly made the tactical decision to forego requesting a charge on defense of habitation, it is not a reasonable decision a competent attorney would have made under the same circumstances.

As for the prejudice prong of Strickland, the inquiry is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Stanford v. Stewart, 274 Ga. 468(1), 554 S.E.2d 480 (2001). Had the jury been properly charged on defense of habitation, it is reasonably probable that they would have accepted the substantial evidence that Kennemore unlawfully entered Benham's car in a violent and tumultuous manner for the purpose of offering personal violence to the occupants. The only evidence to the contrary came from Kennemore who testified that she could not withdraw because Benham was holding onto her shirt. The jury would have been authorized to discredit that evidence, accept the testimony of the disinterested witnesses who stated that Kennemore refused to be ejected from the fracas, and conclude that Benham was justified under the circumstances in using deadly force to repel the attack. Thus, Benham established both that her trial counsel was deficient, and but for counsel's error there is a reasonable probability the result of the proceeding would have been different. Strickland, supra.

Judgment reversed.

FLETCHER, C.J., SEARS, P.J., HUNSTEIN, and HINES, JJ., and Judge KATHY PALMER concur.

CARLEY, J., dissents.

BENHAM, J., not participating.

CARLEY, Justice, dissenting.

I respectfully submit that the majority misapprehends the statutory parameters of the defense of habitation and, as a result, it does not properly analyze Appellant's claim that her trial counsel was ineffective. An accurate understanding of that defense demands the conclusion that, even if Appellant's trial counsel had requested a jury instruction on the defense, there is no reasonable probability that the outcome of the trial would have been different. Therefore, Appellant has not met the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the Court of Appeals correctly affirmed her conviction.

Appellant's attorney requested a charge on self-defense, and the trial court gave a full and fair instruction on that defense. The decisions of defense counsel regarding "`the choice of defenses and theories to be advanced at trial, even if unwise, are deemed matters of tactic and strategy; as a matter of law, strategic decisions do not amount to ineffective assistance of counsel.' [Cit.]" Fairclough v. State, 276 Ga. 602, 605(4), 581 S.E.2d 3 (2003). See also Welch v. State, 243 Ga.App. 798, 800(2), 534 S.E.2d 471 (2000). There is considerable doubt whether the defense of habitation is anything other than a specialized adaptation of the concept of self-defense. See Wiggins v. State, 252 Ga. 467(2), 314 S.E.2d 212 (1984). For purposes of this opinion, however, I will assume that the two defenses can materially differ, and that the failure of Appellant's trial...