Prothro v. State

• Decision Date: 29 January 2018
• Docket Number: S17A1399
• Citation: 809 S.E.2d 787
• Parties: PROTHRO v. The STATE.
• Court: Georgia Supreme Court

302 Ga. 769

809 S.E.2d 787

PROTHRO

v.The STATE.

S17A1399

Supreme Court of Georgia.

Decided: January 29, 2018

Swindle Law Group, Jason W. Swindle, Sr., Dane M. Garland, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.

Grant, Justice.

After a bench trial, Appellant Anthony Prothro was found guilty of malice murder and other crimes associated with the violent death of his grandfather, Alvin Driver.¹ On direct appeal, Prothro claims that he received ineffective assistance of trial counsel. We disagree and affirm.

I.

Viewed in the light most favorable to the verdict, the evidence admitted at trial showed the following. On January 16, 2013, Anthony Prothro climbed into his grandfather's house through the window of what used to be Prothro's bedroom.² Knowing his grandfather's usual schedule, Prothro expected him to be in the shower and planned to steal money from his wallet to buy drugs. When he found that his grandfather was not in the shower, Prothro waited for a time and then climbed back out of the window and entered the house through the front door. He made up a story about needing to see a doctor and asked his grandfather for money. The two argued. Prothro went back to his old bedroom and returned to the living room with a 30-pound dumbbell that he used to strike his grandfather several times on the head. After bludgeoning his grandfather with the dumbbell, Prothro went outside and vomited into the bushes. He sat on the back porch for a while and smoked a cigarette, and then went back into the house where his grandfather lay on the living room floor to take the wallet out of his injured grandfather's pocket. He also took his grandfather's keys and left in his truck. When Prothro departed, his grandfather was bleeding from the head and "snoring." Prothro later used his grandfather's debit card to rent movies.

A few days later, Prothro returned to the house late at night, poured gas around the house and on his grandfather's body, and set the house on fire. A neighbor saw the flames and called 911. After firefighters responded and eventually extinguished the fire, they found the grandfather's body inside on the living room floor. Samples taken from the house and from the grandfather's clothes tested positive for gasoline; an arson investigation determined that the fire had been intentionally started in Prothro's bedroom.

A deputy medical examiner performed an autopsy and concluded that Prothro's grandfather had died of blunt force trauma to the head involving multiple skull fractures, as well as bruising and bleeding of the brain. The medical examiner identified at least eight forceful impacts to the top, back, and right side of the victim's head, though she conceded that it was possible that each blow with a dumbbell could cause more than one impact. The medical examiner also observed fractured bone and cartilage in the victim's neck, consistent with direct compression or "squeezing" of the neck. A forensic pathologist found no soot in the victim's airway and no carbon monoxide in the victim's lungs, indicating that he was dead before the fire started.

Police canvassed the grandfather's neighborhood and interviewed a neighbor who reported seeing Prothro climb through his grandfather's window a few days before the fire. After obtaining a search warrant, investigators searched the apartment where Prothro and his mother lived and found the movies that had been rented with the victim's debit card.

The lead police investigator interviewed Prothro at the Carrollton Police Department on three occasions. Each time, Prothro went voluntarily to the police station with his mother; he was not under arrest. During the third interview, Prothro admitted that he had gotten into a fight with his grandfather the week before, after his grandfather refused to give him money. Prothro confessed that he hit him with a dumbbell three or four times on the head, took his money and debit card, and left him to die. He also confessed that he returned three days later to set fire to the house. Although Prothro has not challenged the sufficiency of the evidence supporting his convictions, we have independently examined the record according to our usual practice and conclude that the evidence admitted at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Prothro was guilty of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

II.

Prothro claims that his trial counsel provided constitutionally ineffective assistance by waiting until the eve of trial to file a motion for the assistance of a forensic psychologist at trial. He argues that the trial court would have granted the motion if it had been filed earlier, in compliance with the Uniform Superior Court Rules. According to Prothro, the trial testimony of a forensic psychologist would have persuaded the trier of fact to find him guilty of the lesser offense of voluntary manslaughter, rather than malice murder. We are unconvinced.

In order to prevail on his claim of ineffective assistance of counsel, Prothro must show both that his attorney's performance was deficient and that he was prejudiced by counsel's errors. Strickland v. Washington , 466 U.S. 668, 687-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate prejudice, Prothro "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to a claim of ineffective assistance of counsel. See Speziali v. State , 301 Ga. 290, 293, 800 S.E.2d 525 (2017) (citing Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ); see also Schmidt v. State , 297 Ga. 692, 697, 778 S.E.2d 152 (2015).

While Prothro's trial counsel admitted at the motion for new trial hearing that his motion for expert assistance was untimely, there is no evidence that the outcome of the trial would have been different if the motion had been filed earlier. To begin, the trial court evidently considered the motion on its merits, despite the late filing. The court even held a hearing on the motion, where Prothro's mother, one of Prothro's friends, and forensic psychologist Dr. Lauren Reba-Harrelson testified. Dr. Harrelson had evaluated Prothro before trial and...