Redding v. State

• Decision Date: 17 May 2021
• Docket Number: S21A0331
• Citation: 858 S.E.2d 469,311 Ga. 757
• Court: Georgia Supreme Court
• Parties: REDDING v. The STATE.

311 Ga. 757

858 S.E.2d 469

REDDING

v.The STATE.

S21A0331

Supreme Court of Georgia.

Decided: May 17, 2021

Matthew Kyle Winchester, Law Offices of Matthew K. Winchester, 1800 Peachtree Street, NW, Suite 300, Atlanta, Georgia 30309, Ashutosh S. Joshi, Joshi Law Firm, PC, 66 Lenox Pointe NE, Atlanta, Georgia 30324, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Kathleen Leona McCanless, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Darius T. Pattillo, District Attorney, Sharon Lee Hopkins, A.D.A., Flint Circuit District Attorney's Office, One Courthouse Square, West Tower, 3rd Floor, McDonough, Georgia 30253, for Appellee.

Boggs, Justice.

After a 2017 jury trial, Julian Keyon Redding was convicted of malice murder and possession of a firearm during the commission of a felony in connection with the shooting death of Prince Varner. He appeals, asserting three errors in the trial court's jury instructions and ineffective assistance of trial counsel. For the reasons stated below, we affirm.¹

1. The evidence at trial² showed that on September 13, 2015, Redding's cousin, DeMarcus Jester, was shot in the leg. Redding was aware of rumors that Prince Varner was responsible. On October 25, 2015, Varner, his girlfriend, and two friends went to the Red Zone, a local bar in McDonough. All four were patted down by a bouncer for weapons. During the evening, Redding and some of his friends followed Varner around the bar and told him, "Somebody die tonight." They continued to harass him throughout the night, and Varner told his girlfriend, "I feel like they going to jump me." In the early morning hours, one of Redding's friends lured Varner outside the bar by offering him a cigar. Redding emerged from the bar and again told Varner, "Somebody die tonight. Somebody die tonight." Varner was standing at the bar entrance talking on his cell phone when Redding retrieved a pistol from his car and approached Varner, who said, "I'll beat your mother******g *ss. Put down the pistol."³ Varner then ran back into the crowded bar. Redding followed him to the entrance doorway and shot him six times from behind, striking and wounding a bystander, and continuing to shoot even after Varner fell face-down on the floor. Redding then fled; Varner died at the scene.

The bar had an extensive video and audio surveillance system, including close-up views of the bar entrance, and the shooting was recorded and played for the jury. Video recordings and still frames from the videos showed Varner standing outside the bar's front entrance, Redding running toward him from the parking lot, Varner ducking and fleeing into the bar as Redding followed him through the entrance doors, and Redding shooting Varner in the back multiple times from only a few feet away, even after Varner fell to the floor. Police officers recovered six shell casings near the bar entrance, but no firearm was found on or near Varner's body, and three witnesses testified that Varner never had a gun. At trial, Redding admitted that the shells were fired from his pistol.

Redding asserted a defense of justification by self-defense, claiming that Varner had a violent reputation, belonged to a gang, was known to carry a gun, was seen earlier in the evening taking a pistol from his girlfriend's purse, and was suspected of having shot Jester. Redding claimed that Varner had threatened him on Facebook and had sent threatening messages by cell phone, but he did not produce any social media or telephone messages. In addition, Redding testified that Varner had threatened him "earlier that night" and that he overheard Varner threatening his cousin, Javon Redding, and saying that he had a "MAC-10" submachine gun "on deck." Finally, Redding testified that when he approached Varner outside the bar, "[w]hen he turned back toward me, it appeared I seen a weapon, so I started shooting." But Redding also testified that he did not see what he said appeared to be a weapon until after he approached Varner at the bar door with his pistol drawn, and did not feel threatened until Redding "first walked towards him." The detective in charge of the investigation testified that the video and still frames showed nothing in Varner's right hand and a cell phone in his left hand.⁴

2. In Redding's first enumeration of error, he contends that the trial court erred in failing to give his requested charge on the defense of mistake of fact under OCGA § 16-3-5, which provides: "A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission." He cites this Court's decision in Pullin v. State , 257 Ga. 815, 364 S.E.2d 848 (1988), in which we held that because the trial court fully charged the jury on justification and self-defense, Pullin was not entitled to a charge on mistake of fact pursuant to OCGA § 16-3-5. Id. at 817 (3), 364 S.E.2d 848.

Redding urges that Pullin be overruled because, he claims, it fails to provide any reasoning or discussion of the language of the relevant Code section in support of its holding.⁵ But Pullin is not the origin of this holding, which has been relied upon by this Court and the Court of Appeals in opinions dating back nearly half a century, and we decline Redding's invitation to overrule Pullin or this line of cases.

Since 1965,⁶ a series of decisions has held that a mistake-of-fact instruction is not required, even upon request, if the "mistake" or "misapprehension" alleged by the defendant is the belief that the victim possessed a weapon or was about to use deadly force against the defendant, so long as the trial court fully instructs the jury on justification and self-defense, including analogous principles of justification and reasonable belief. See, e.g., Jordon v. State , 232 Ga. 749, 754 (4), 208 S.E.2d 840 (1974) (not error to refuse charge on mistake of fact when "trial judge fully charged on justifiable homicide"); McClendon v. State , 231 Ga. 47, 48 (4), 199 S.E.2d 904 (1973) (requested charge on mistake of fact not required when "court fully covered the principles of justifiable homicide, and it was not error to fail to charge in the exact language requested." (Citation omitted.)). Also, in Ellis v. State , 174 Ga. App. 535, 330 S.E.2d 764 (1985), the Court of Appeals relied upon both its decisions and those of this Court to hold that the appellant was not entitled to a mistake-of-fact charge when the trial court's full charge on self-defense included an instruction that "a person is legally justified in using force against another when and to the extent that he reasonably believes that such force is necessary to defend himself against such other's [imminent] use of unlawful force." (Interpolation and emphasis in original.) Id. at 536 (2), 330 S.E.2d 764.

This Court has continued to follow this line of cases after its decision in Pullin . See, e.g., Winters v. State , 303 Ga. 127, 133 (III), 810 S.E.2d 496 (2018) (holding that "mistake of fact is not separate from a self-defense argument where the asserted mistake concerned whether the victim was armed and the defendant's use of force was thus justified." (Citation omitted.)); Daniel v. State , 285 Ga. 406, 411 (7), 677 S.E.2d 120 (2009) (mistake of fact not separate defense when alleged mistake "concerned whether the victim was armed, and thus, whether [appellant] was justified in shooting first in self-defense." (Citations and punctuation omitted.)); Bell v. State , 280 Ga. 562, 567 (5) (b), 629 S.E.2d 213 (2006) (same); Slaughter v. State , 278 Ga. 896, 896, 608 S.E.2d 227 (2005) (same).

Here, considering the charge as a whole, see Powell v. State , 307 Ga. 96, 100 (2) (a), 834 S.E.2d 822 (2019), the trial court did not err in declining to give a mistake-of-fact instruction. The only mistake of fact asserted by Redding was that he mistakenly believed Varner had a gun, thus supporting his defense of justification by self-defense. The trial court's instructions included a lengthy series of pattern jury instructions on justification and self-defense, including language repeatedly instructing the jury on a defendant's "reasonable belief" with respect to the use of force in self-defense. A mistake-of-fact instruction therefore was unnecessary, given the trial court's full and complete instructions on self-defense and justification, and the trial court did not err in failing to give it on request.

3. Redding asserts that the trial court committed plain error when it failed to instruct the jury sua sponte that he had no duty to retreat after the State questioned him about his testimony that he left the bar and went to his car, asking why he did not leave if he was afraid of Varner.

To establish plain error, [Redding] must identify an error that was not affirmatively waived, was clear and not open to reasonable dispute, likely affected the outcome of the proceeding, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.

(Citation omitted.) Thompson v. State , 304 Ga. 146, 151 (6), 816 S.E.2d 646 (2018).⁷

The relevant instruction says:

One who is not the aggressor is not required to retreat before being justified in using such force as is necessary for personal defense or in using force that is likely to cause death or great bodily harm if one reasonably believes such force is necessary to prevent death or great bodily injury to oneself or a third person or to prevent the commission of a forcible felony.

(Emphasis supplied.) Georgia Suggested Pattern Jury Instructions, Criminal Cases 3.10.13 (2020).

Redding claims that his testimony regarding Varner's earlier threat to his cousin and Varner's statement that he had a "MAC-10 on deck" was evidence that Varner was the "original aggressor." However, no evidence...