Carter v. State

• Citation: 285 Ga. 565,678 S.E.2d 909
• Decision Date: 17 June 2009
• Docket Number: No. S09A0228.,S09A0228.
• Parties: CARTER v. The STATE.
• Court: Georgia Supreme Court

678 S.E.2d 909

285 Ga. 565

CARTER v. The STATE.

No. S09A0228.

Supreme Court of Georgia.

June 17, 2009.

Charles E.W. Barrow, Athens, for appellant.

Robert W. Lavender, Dist. Atty., James A. Carmichael, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Mary K. Ware, Asst. Atty. Gen., for appellee.

MELTON, Justice.

Following a jury trial, Antawyn Carter appeals his conviction for the felony murder of his brother, Tamitrea Carter.¹ Antawyn contends that his trial counsel rendered ineffective assistance by failing to pursue the affirmative defense of justification based on the defense of third parties. Because no evidence supported this defense, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, on the evening of August 6, 2006, Tamitrea was arguing with his father, Carey Carter, after the two of them had been drinking together. At that time, Tamitrea was living at home with his parents. At some point, Antawyn was called to come to his parents' home. Antawyn's father, however, told him to go away, and Antawyn and Tamitrea were left outside the house. Neighbors then witnessed the brothers arguing in the street, and Antawyn threatened Tamitrea, "I'll take you out." Antawyn then hit Tamitrea, knocking him to the ground. Tamitrea next got up and began running away from Antawyn towards a stop sign at the end of the street. Antawyn shot Tamitrea as he ran away, hitting him in the back of the head and killing him. Tamitrea's body was discovered in a ditch by the street with a knife laying on the ground nearby. Antawyn later admitted that he shot Tamitrea, but he claimed that it was an accident.

1. This evidence was sufficient to enable the jury to find that Antawyn was guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Antawyn contends that his trial counsel rendered ineffective assistance of counsel by failing to pursue the affirmative defense of justification based on the defense of a third party. More specifically, Antawyn contends that his trial counsel should have pursued a defense that he shot Tamitrea in order to protect his father, based on a previous threat made by Tamitrea.

To prove ineffective assistance, [Antawyn] must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to prove one prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697(IV), 104 S.Ct. 2052. See also Fuller v. State, 277 Ga. 505(3), 591 S.E.2d 782 (2004).

McDougal v. State, 284 Ga. 427, 428(2), 667 S.E.2d 592 (2008).

Based on the facts of this case, Antawyn was not prejudiced by his trial counsel's failure to pursue the affirmative defense of justification. OCGA § 16-3-21(a) provides: "A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force." (Emphasis supplied.) Furthermore, "[t]he doctrine of reasonable fear does not apply to any case of homicide where the danger apprehended is not urgent and pressing, or apparently so, at the time of the killing." Short v. State, 140 Ga. 780(3), 80 S.E. 8 (1913).

In this case, it is undisputed that, at the time that Antawyn shot Tamitrea, both men had fought in the street outside their father's home, their father was inside the home and not with them, and Tamitrea was running away from Antawyn who had pulled out his pistol. There is some evidence from which it could be inferred that Tamitrea was carrying a knife, but there is no evidence that Tamitrea was trying to go to his father's house when he was shot, only that Tamitrea was running away from Antawyn towards a stop sign located at the end of the street. In any event, it is undisputed that Carey Carter was inside his home at the time of the shooting and that, even if we assume that Tamitrea was going towards the house, he was shot before he even reached the front yard. These facts do not support any finding that Carey Carter was in imminent danger from Tamitrea at the time of the shooting. Brown v. State, 270 Ga. 601, 603(2), 512 S.E.2d 260 (1999) ("because the [third person] was not even present at the time of the shooting, there was no evidence that [the third person] was in any immediate danger from [the defendant]"). The fact that Tamitrea may have made a threat against his father earlier in the evening does not change this result. Chameckia Sturghill, Antawyn's cousin, testified at the motion for new trial hearing in relation to the ineffective assistance of counsel claim; however, her testimony, the sole evidence of the threat, indicated that the threat occurred at least thirty minutes before the murder occurred.

Because, as a matter of law, the facts of this case do not support a justification defense based on the defense of third persons or the giving of a jury instruction in that regard, it cannot be said that "there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's [failure to pursue such a defense or request such an instruction]." Brogdon v. State, 255 Ga. 64, 68(3), 335 S.E.2d 383 (1985).

Judgment affirmed.

All the Justices concur, except SEARS, C.J., BENHAM and HINES, JJ., who dissent.

HINES, Justice, dissenting.

As the majority incorrectly applies the standard regarding whether a jury instruction is warranted by the evidence, I respectfully dissent.

Although the majority declares that, as a matter of law, a jury instruction on justification based upon defense of a third person was not available to Antawyn, the proper legal inquiry is whether there is evidence supporting the instruction, not whether there is evidence from which a jury could reject the asserted defense. Davis v. State, 269 Ga. 276(3), 496 S.E.2d 699 (1998). Ultimately rejecting or accepting such a defense is the proper province of the jury, not this Court. See McNeil v. State, 284 Ga. 586, 588(1), 669 S.E.2d 111 (2008).

In stating that no such jury instruction was warranted, the majority focuses upon three factual elements. Even though the majority concedes that there was evidence that Tamitrea was carrying a knife, it states that there was no evidence that Tamitrea was running toward Carey's house, but rather only evidence that he was running away from Antawyn and "towards a stop sign located at the end of the street." However, the majority neglects to mention that Carey's house is located at the end of the street, that there is a stop sign there, and that Tamitrea died at the side of Carey's yard. Further, the evidence at trial was presented with the aid of exhibits, apparently by utilizing a user-controlled video screen display, and much of the testimony regarding the positions of Tamitrea, Antawyn, and the witnesses was done by physical indications to the jury using these exhibits,¹ and these indications upon them have not been preserved. The exhibits show two stop signs, with Carey's house essentially between them, and the testimonial references to stop signs do not foreclose the conclusion that Tamitrea was running toward a door to Carey's house.² Based upon testimony that is preserved in the record, a jury could infer that Tamitrea was running not toward a stop sign, but toward Carey's house.

The majority also states that a jury could not find that there was imminent danger to Carey because he was not "present" at the time of the shooting. The case cited by the majority for the proposition that a third person whom an actor is defending must be "present" to warrant a justification instruction does not illuminate what "present" means in this context. See Brown v. State, 270 Ga. 601, 603(2), 512 S.E.2d 260 (1999). The evidence was that Tamitrea had reached the side yard of Carey's house, within feet of the structure, and the majority provides no guidance as to just how close to an intended victim a knife-wielding person who has threatened to stab another may be allowed to approach before the danger may be considered imminent. Such a determination should not generally be declared as a matter of law, but should be made by the jury, under the specific facts of the case, and with the proper legal instruction.

Further, the majority notes that Tamitrea's threat to Carey was uttered thirty minutes before the shooting. However, a threat need not be contemporaneous with the defensive use of force for one to reasonably believe that such force is necessary. This Court has long recognized that, even though a threat may have been made well prior to the defensive use of force, the threat is nonetheless relevant to whether the defendant held a reasonable belief that it was necessary to use force to protect himself or another. See Sturkey v. State, 271 Ga. 572, 573-574(2), 522 S.E.2d 463 (1999); Shaw v. State, 241 Ga. 308, 309(1), 245 S.E.2d 262 (1978); Baker v. State, 142 Ga. 619, 83 S.E. 531 (1914). See also McDonald v. State, 182 Ga.App. 509, 509-511(1), 356 S.E.2d 264 (1987).

The evidence would have allowed the jury to infer that Antawyn had a reasonable belief that Tamitrea posed an "urgent and pressing danger" to his father, Brown, supra, requiring the use of force to prevent his father's death, or great bodily injury to him. Accordingly, had counsel requested an instruction on justification in the defense of third person, the trial court would have been compelled to give it.³

Of course, to prevail on a claim of ineffective assistance of counsel, Antawyn must show both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)...