Scriven v. State
| Decision Date | 22 February 2021 |
| Docket Number | A20A1941 |
| Parties | SCRIVEN v. The STATE. |
| Court | Georgia Court of Appeals |
Thomas Edward McCants, for Appellant.
Joshua Bradley Smith, Augusta, Henry Wayne Syms Jr., Jared Tolton Williams, Augusta, for Appellee.
A jury found Terrance Scriven guilty of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon, and he was subsequently convicted. Following his convictions, Scriven filed a motion for new trial, which the trial court denied. He appeals, arguing that the trial court erred in charging the jury and by admitting his statement into evidence. He also claims that he received ineffective assistance of counsel at trial. Finding no basis for reversal, we affirm.
Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. See Morris v. State , 308 Ga. 520 (1), 842 S.E.2d 45 (2020). On October 3, 2012, the victim was drinking outside a package store with a group that included Scriven. The individuals in the group were making fun of each other, and the victim told the group, "you guys, been in and out ... of prison ... you may have a boyfriend up in there," and then called the group, including Scriven, a homophobic slur. Scriven walked to his vehicle and drove away.
After approximately 15 minutes, Scriven returned to the area and asked where the victim was, using a racist slur. The victim approached Scriven and said he was "right here." Scriven then pulled out a gun and demanded that the victim apologize. The victim "didn't want to say anything else to provoke him to pull the trigger" so he refused, "turned around and walked off[.]" As the victim was walking away, Scriven shot him in the left arm. The victim ran inside the store, and as he was running he heard a second shot, but he was not hit by the second bullet.
The victim was transported to the hospital, where he told the investigating deputy that Scriven had shot him. No weapons were recovered from the victim's person, and the victim testified that he did not have a weapon on his person at the time.
The deputy interviewed Scriven, and a video recording of the interview was played at trial. During the interview, Scriven stated that on the night in question, the victim and the group were sitting on a truck joking around when the victim called everyone in the group homosexuals. The victim pulled out a knife, threatened to rape him, and pushed Scriven off of the truck. Scriven then walked away to get a gun he had observed a stranger put under a truck tire. Armed with the gun, Scriven walked back to the victim and told him he would give the victim until the count of three to apologize. The victim refused and began to run away, while still holding the knife. Scriven counted to two and fired the gun towards the victim twice, hitting the victim once.
1. Scriven claims that the trial court erred by refusing to give his requested justification jury instructions. Reddick v. State , 301 Ga. 90, 90 (1), 799 S.E.2d 754 (2017) (citation and punctuation omitted.)
Scriven contends that justification was his sole defense and the trial court erred by refusing to give the charge. However, Porter v. State , 272 Ga. 533, 534 (3), 531 S.E.2d 97 (2000) (citations and punctuation omitted). As with the defendant in Porter , Scriven offered no evidence at trial. He relied solely on his custodial statement to carry his burden of production.
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; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.
OCGA § 16-3-21 (a) (emphasis supplied).
In Porter , the victim and the defendant engaged in a physical fight in the backseat of a car, the victim attempted to run away from the scene and the defendant shot the fleeing unarmed victim. Supra at 533, 531 S.E.2d 97. The Porter defendant said in his statement that he was scared and that he believed that the victim had other guns. Id. at 534, 531 S.E.2d 97. The Supreme Court found that it was not error for the trial court to refuse to provide the self defense jury charge because "any imminent threat of harm which may have occurred in the back seat of the vehicle had ended when both men emerged." Id. at 535 (3), 531 S.E.2d 97.
Similarly, while there was some evidence in this case that the victim had a knife and had made threatening comments to Scriven, Scriven admittedly left and returned to the scene armed with a gun, sought out the victim, demanded an apology, and counted to two before shooting the victim as the victim ran away. There was no imminent threat and thus no evidence that Scriven's actions were justified. The trial court did not err in refusing to charge the jury on justification. See id. ; Carter v. State , 285 Ga. 565, 565-567 (2), 678 S.E.2d 909 (2009) ().
2. Scriven argues that the jury charges regarding circumstantial evidence were inconsistent and given in error. "A jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law." Morris , supra at 529 (4), 842 S.E.2d 45 (citation and punctuation omitted).
In reviewing a challenge to the trial court's jury charge, we view the charge as a whole to determine whether that court fully and fairly instructed the jury on the law of the case. If the jury is charged in such a manner as to work no prejudice to the defendant, then this Court will not consider a challenge to the wording of isolated segments.
Watkins v. State , 265 Ga. App. 54, 54, 592 S.E.2d 868 (2004) (citation and punctuation omitted).
The trial court's first charge on circumstantial evidence followed the Georgia pattern jury charges. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2020), § 1.3.20. As to the second circumstantial evidence charge, the trial court stated that:
I charge you that aggravated assault and possession of a firearm during the commission of a crime may be shown by circumstantial evidence. In order to support a conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference beyond a reasonable doubt of guilt.
This was not an incorrect statement of law. See Jones v. State , 299 Ga. 377, 379-380 (1) (b), 788 S.E.2d 477 (2016) ; Smith v. State , 309 Ga. App. 466, 468, 710 S.E.2d 654 (2011) ; OCGA § 24-14-6. While the verbiage in the second sentence may not be as clear as desired, jury charges must be read as a whole, and the jury was properly instructed as to how to interpret circumstantial evidence. Moreover, the primary evidence against Scriven (the victim's testimony and Scriven's statement) was direct. See Stubbs v. State , 265 Ga. 883, 884-885 (2), 463 S.E.2d 686 (1995) (). Scriven has offered no evidence that the jury was confused or misled by the circumstantial evidence instructions. As such, this enumeration of error fails. See generally Morris , supra at 530 (4), 842 S.E.2d 45 ; Watkins v. State , 265 Ga. App. 54, 57 (4), 592 S.E.2d 868 (2004) () (citation and punctuation omitted).
3. Scriven claims that the trial court erred by admitting his statement into evidence because the trial court failed to determine whether he was mentally competent at the time of his statement. On review of the admissibility of a defendant's statement, the finding of a trial judge will not be overturned unless clearly erroneous. See Nelms v. State , 255 Ga. 473, 474 (1), 340 S.E.2d 1 (1986).
At the Jackson-Denno hearing, the deputy testified that he interviewed Scriven after advising him of his Miranda rights and that Scriven did not appear to be under the influence of alcohol or drugs. He also testified that he did not threaten or coerce Scriven, or make any promises in order to obtain a statement. A video recording of the interview was played. Scriven testified at the hearing that at the time he gave his statement he was "tired" and that he had been woken up at five o'clock in the morning. Scriven stated: "I just was ready to get it over with, but I told him the truth about the incident." During the statement, Scriven stated that he had been diagnosed as bipolar and a paranoid schizophrenic, but that he was on his medication.
"A person who is mentally ill can be competent to make a voluntary confession." Johnson v. State , 256 Ga. 259, 260 (4), 347 S.E.2d 584 (1986). "Further, a mere showing that a person who...
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