Parrott v. State

• Decision Date: 02 March 2015
• Docket Number: No. A14A1715.,A14A1715.
• Citation: 769 S.E.2d 549,330 Ga.App. 801
• Parties: PARROTT v. The STATE.
• Court: Georgia Court of Appeals

330 Ga.App. 801

769 S.E.2d 549

PARROTT

v.The STATE.

No. A14A1715.

Court of Appeals of Georgia.

March 2, 2015.

Certiorari Denied May 26, 2015.

Benjamin David Goldberg, for Appellant.

Scott L. Ballard, Dist. Atty., Robert Wright Smith Jr., Asst. Dist. Atty., for Appellee.

Opinion

PHIPPS, Chief Judge.

For the shooting death of Cody Ward, a jury found Joseph Parrott guilty of voluntary manslaughter (as a lesser included offense to the charge of murder), aggravated assault, and possession of a firearm during the commission of a crime. Ward was initially sentenced on all three counts. But in post-conviction proceedings, the trial court vacated the aggravated assault sentence, merging the aggravated assault into the voluntary manslaughter for sentencing purposes.

In this appeal, Parrott contends that the trial court erred by failing to take corrective action when the prosecutor made an improper remark during closing argument, by not including certain instructions in its final charge to the jury, and by rejecting his claim of ineffective assistance of trial counsel. For reasons that follow, we affirm.

The trial evidence showed the following. Parrott was 16 years old with an eighth-grade education when he fatally shot 19–year–old Ward. Parrott and Ward were neighbors, and part of the same circle of friends. During a temporary break-up between Ward and his girlfriend, Parrott had sex with her. Ward found out; he was upset and wanted to meet with Parrott.

On the day in question, November 21, 2008, Parrott agreed to meet Ward at Ward's home to discuss the situation. A mutual friend had left Ward's home and walked to Parrott's residence to accompany Parrott back to Ward's house. As the mutual friend recounted at trial, in several calls he had with Parrott earlier that day, Parrott had expressed concern that “we were going to jump him [Parrott].” So as they walked together toward Ward's house, Parrott carried with him a rifle. It was about 6:00 p.m.

Rather than walking directly to Ward's residence, Parrott and the friend headed first to the residence of the friend's girlfriend. She lived across the street from Ward. When Parrott and his friend had walked about 50 yards up the gravel driveway of the girlfriend's residence, they heard footsteps behind them and looked back. It was Ward.

Parrott's friend gave this account of the shooting that ensued. Ward—who “wasn't running, he was just steadily walking up the driveway”—was about 10 feet away. Parrott told Ward to stop; Ward stopped and put his hands up in the air. Parrott “started shooting I think he shot about four times.” Ward collapsed. As Ward lay on the ground, Parrott shot him several times in the back, then ran into nearby woods.

Ward was unarmed when he was fatally shot. As was later determined, one bullet entered Ward's front abdomen and passed through his aorta; a second bullet entered Ward's back and passed through his kidney, liver, and diaphragm; a third bullet entered his upper buttock and lodged in his sacrum. The pathologist who conducted the autopsy opined that, while the third bullet was a “minor gunshot wound

,” either of the other two bullets could have inflicted fatal injury.

A police investigator assigned to the case testified that Parrott was located the morning after the shooting and brought into the sheriff's office. Parrott agreed to give a statement. Therein, Parrott admitted that he had discharged the rifle about four times before Ward hit the ground. The investigator described that, as Parrott recounted the incident, “[Parrott] was very cold. It was almost like he didn't care.... There was no emotion at all.”

Parrott, who was the sole defense witness, admitted shooting Ward and further gave this account. When his friend arrived at his house, the friend told him that they were headed to Ward's house. The friend had told Parrott that Ward had been showing his guns to friends who were at his house, so Parrott carried a gun with him. As Parrott explained, “I really didn't intend—I just figured if I had it maybe he wouldn't mess with me.” When they reached Ward's driveway, however, the friend told Parrott that he wanted to first stop by his girlfriend's residence. As they walked up the driveway of her residence, Parrott recalled, “I heard someone come up behind me.” Parrott testified that he was already afraid, and so, “[b]efore I even turned around I pulled the gun down.” Parrott described that “[Ward] was running,” and, “I said stop. And—But I was already nervous—my hands were shaking—and I just pulled the trigger.” In a matter of two seconds, Parrott estimated, he had pulled the trigger three or four times. He added, “I was shooting towards [Ward], but I really wasn't trying to shoot him.”

1. Citing OCGA § 17–8–75,¹ Parrott contends that the trial court erred by failing to take curative action when the prosecutor included what he claims was a “future dangerousness” remark during closing argument.²

It is well settled that the burden is on the appellant “who asserts error to show it affirmatively by the record”;³ further, “an appellant, in order to secure a reversal, must demonstrate not only error but harm.”⁴ But as Parrott conceded in his appellate brief, closing arguments were not transcribed.⁵ “[W]here the transcript does not fully disclose what transpired in the trial court, the burden is on the complaining party to have the record completed pursuant to OCGA § 5–6–41.”⁶ Because Parrott did not supplement the transcript in accordance with that statute, this contention provides “nothing for the appellate court to review.”⁷

Although Parrott asserts that, through his testimony at the hearing on the motion for new trial, he established that the prosecutor made an impermissible future dangerousness remark, “[t]estimony at the hearing on the motion for new trial in this case is not a sufficient substitute for a transcript” setting forth closing arguments.⁸

2. Parrott contends that the trial court erred by failing to instruct the jury on the principle that “threats and menaces of what proved to be the unarmed victim could be a sufficient basis for a reasonable man to respond with deadly force.”⁹

Parrott acknowledges that he did not request such an instruction, but relies on the rule enunciated in Tarvestad v. State:¹⁰ “The trial court must charge the jury on the defendant's sole defense, even without a written request, if there is some evidence to support the charge.”¹¹

Assuming, but not deciding, that such an instruction was authorized by the evidence,¹² we find no reversible error. Parrott states in his brief that “[his] sole defense in the instant case was self-defense”; further, he acknowledges that the trial court charged the jury on self-defense and on justification.

The record illustrates that Parrott's defense was that the state failed to carry its burden of proving that the homicide was not justified.¹³ Further, the record confirms that the trial court fully and adequately instructed the jury on justification; self-defense, including the statutory language “reasonably believes” found in OCGA § 16–3–21(a) ; and on the state's burden to prove beyond a reasonable doubt that Parrott's actions had not been justified.¹⁴ Although Parrott maintains that the trial court should have given an additional explanatory charge on the “threats and menaces” principle, “[t]he giving of an otherwise correct charge is not rendered erroneous for lack of an additional explanatory charge, in the absence of an appropriate request.”¹⁵ Given these circumstances, Parrott has demonstrated no violation of the rule that requires that a defendant's sole defense must be charged even when not requested.¹⁶

3. Parrott contends that the trial court erred by rejecting his claim of ineffective assistance of trial counsel. Pursuant to Strickland v. Washington,¹⁷

[t]o prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.¹⁸

“In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”¹⁹

(a) Parrott complains that his trial lawyer did not request a curative instruction after the prosecutor's alleged future dangerousness remark.

Parrott's trial lawyer did not testify at the hearing on motion for new trial. “It is extremely difficult to overcome the presumption of reasonable professional assistance where counsel does not testify.”²⁰ Moreover, as noted in Division 1,²¹ the closing arguments were not transcribed. “[S]peculation that error may have occurred is insufficient to show any deficiency on the part of counsel, or prejudice therefrom, and is insufficient to show reversible error.”²²

(b) Parrott posits that his self-defense claim came down to whether the jury “reasonably believed” that he needed to use deadly force. He asserts that his trial lawyer failed to present evidence of what he claims showed “threats and menaces made by the deceased towards [him]” and evidence of what he claims showed “goading and taunting endured by [him] right before the shooting.” Further, Parrott complains that his trial lawyer did not request a jury instruction on the principle concerning threats and menaces.²³

At the hearing on motion for new trial, Parrott adduced evidence of two encounters he had with Ward prior to the day of the shooting, and evidence of contentious phone calls he (Parrott) received on the day of the shooting. Regarding the first such encounter, Parrott showed at the new trial hearing that, about six to eight weeks before the shooting, Ward appeared at...