Sullivan v. State

• Citation: 308 Ga. 508,842 S.E.2d 5
• Decision Date: 20 April 2020
• Docket Number: S20A0056
• Parties: SULLIVAN v. The STATE.
• Court: Supreme Court of Georgia

308 Ga. 508

842 S.E.2d 5

SULLIVAN

v.The STATE.

S20A0056

Supreme Court of Georgia.

Decided: April 20, 2020

Lauren Beth Shubow, Stephen Randall Scarborough, for Appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.

Warren, Justice.

A jury convicted Antonio Sullivan of malice murder and other crimes in connection with the shooting death of Wava Benton.¹ On appeal, Sullivan contends that his trial counsel was constitutionally ineffective by failing to present evidence at trial to corroborate Sullivan's testimony about prior difficulties between Sullivan and Benton, and by failing to procure expert testimony about Sullivan's mental health—specifically about post-traumatic stress disorder—to be presented to the jury. Because Sullivan has failed to establish that his trial counsel was deficient in either respect, we affirm his convictions.

1. There is no dispute in this case that Sullivan shot and killed an unarmed Benton at the Caribou Apartment complex; multiple eyewitnesses testified that they saw Sullivan shoot Benton, and Sullivan himself admitted it on the stand and continues to admit it on appeal.² Viewed in the light most favorable to the jury's verdicts, additional evidence presented at Sullivan's trial showed the following. On the day of Benton's murder, the regional manager of the Caribou Apartment complex, who was sitting in the leasing office, heard a gunshot. When he looked out the window, he saw one man running "in a zigzag" while another man was running behind him shooting. According to the regional manager, the man running in a zigzag got "hit and he went down .... And then I saw the shooter go up to the victim one more time and fire one more round and then took off." From the leasing office window, the assistant manager of the complex saw one man running and "then a couple of seconds later I see the man shooting behind him. He must have hit him because he fell on the ground and after that I see him walk up to him and shoot him in the head; popped his hoodie on and took off running." The assistant manager positively identified Sullivan from a photographic lineup as the shooter.

Two residents of the apartment complex who witnessed the shooting also testified at trial. One of the residents testified that she heard a sound like "fire crackers," looked out of her apartment window, and "saw a boy running .... And I saw another boy running; shot him in the back .... The boy fell, and then he walked up and shot the boy in the head." That resident also positively identified Sullivan from a photographic lineup as the shooter. The other resident testified, "I saw two men running and one fell and the shooter stood over him and shot him two times." She also positively identified Sullivan from a photographic lineup as the shooter.

Sullivan testified in his own defense at trial, and his was the only testimony or evidence the defense presented. He testified that in 2008, Benton and one of Benton's associates robbed Sullivan at gunpoint. Sullivan also suggested that in early 2013, while Benton was incarcerated, Benton, through his associates, continued to intimidate Sullivan, demanding that Sullivan "put some money on [Benton's] books or something," and emphasizing that "once they got you, they really got you," and they "keep coming at you until you can't take no more." Sullivan also testified that after Benton got out of prison, Sullivan saw Benton at a gas station about a week before the crimes occurred, and Benton told Sullivan, "if you going to be around here," but not "shop[ ] for drugs" from Benton's street gang, then you have to "pay your homage," which Sullivan understood to mean "you've got to give him money; got to give him something."

Sullivan testified that on the day of the shooting, he was leaving the Caribou Apartment complex when Benton and "like five other guys" (all of whom Sullivan said he had seen with guns in the past) confronted him. Benton said to Sullivan, "didn't I tell you not to come around here unless you going to buy from us," and to "give me what you got," before Benton "grabbed from [Sullivan's] pocket." Sullivan then saw one of the other men "displaying [a] gun," so Sullivan "snatched back and grabbed [his own] firearm off of [his own] waist." Sullivan testified that "[Benton] grabbed my wrist. And as we struggle I fired. I kept firing. He struggled and I kept firing .... When I fired the gun went off and he just let go, just ran." Sullivan testified that when Benton ran, "I chased behind him." According to Sullivan, he was shooting as he was chasing Benton. Sullivan testified, "I wasn't thinking. I was just tired." Sullivan further testified that at some point, Benton fell to the ground, and then "I just shot him. I stood over him and shot him."

As to his mental state during the incident, Sullivan testified that he pulled his weapon in the first place because he was "tired. [Benton] going to keep coming .... It's not going to stop," and that Sullivan was "scared for my life. Scared if I don't – if I don't deal with it, it's already done .... You either do what you got [to] do or you going to get got or your family going to get got." And Sullivan testified that based on his past experience with Benton, "[Benton] always had a gun." Sullivan admitted that he never saw Benton with a gun that day. And in a custodial interview conducted over a month after the crimes, Sullivan admitted to a detective that he shot Benton, would do it again, and would "piss on [Benton's] grave."

Sullivan does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Sullivan guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Sullivan raises one enumeration of error: that his trial counsel was constitutionally ineffective in two ways: (a) by failing to present the testimony of other witnesses at trial to corroborate Sullivan's testimony about prior difficulties between Sullivan and Benton, and (b) by failing to procure expert testimony about Sullivan's mental health to be presented to the jury.

To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel's performance was deficient and that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington , 466 U.S. 668, 687-695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Wesley v. State , 286 Ga. 355, 356, 689 S.E.2d 280 (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney "performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." Romer v. State , 293 Ga. 339, 344, 745 S.E.2d 637 (2013) ; see also Strickland , 466 U.S. at 687-688, 104 S.Ct. 2052. This requires a defendant to overcome the "strong presumption" that trial counsel's performance was adequate. Marshall v. State , 297 Ga. 445, 448, 774 S.E.2d 675 (2015) (citation and punctuation omitted). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel's deficient performance, the result of the trial would have been different. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "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." Lawrence v. State , 286 Ga. 533, 533-534, 690 S.E.2d 801 (2010). Ineffectiveness claims involve mixed questions of law and fact, and "a trial court's factual findings made in the course of deciding an ineffective assistance of counsel claim will be affirmed by the reviewing court unless clearly erroneous," Green v. State , 302 Ga. 816, 818, 809 S.E.2d 738 (2018) (citation and punctuation omitted), whereas conclusions of law based on those facts are reviewed de novo. See Bright v. State , 292 Ga. 273, 274, 736 S.E.2d 380 (2013).

(a) Sullivan contends that his trial counsel was constitutionally ineffective because he failed to call witnesses to corroborate Sullivan's trial testimony about Benton's prior threats to, and harassment of, Sullivan. According to Sullivan, calling witnesses other than himself would have supported the defense's theory that Sullivan acted in self-defense or was guilty of only voluntary manslaughter. He argues that such evidence was all the more important given that there was no doubt that Sullivan killed Benton in what appeared to be an especially cruel manner.

But "[a] decision as to which defense witnesses to call is a matter of counsel's trial strategy and tactics and will not support a claim of ineffective assistance of counsel unless it is so unreasonable that no competent attorney would have made the decision under the circumstances." Neely v. State , 302 Ga. 121, 125, 805 S.E.2d 18 (2017) (citation and punctuation omitted). And at Sullivan's motion for new trial hearing, trial counsel testified that after receiving a list of potential witnesses from Sullivan and members of his family, trial counsel talked to "between six to eight" potential witnesses, considered each of them, and ultimately made the choice not to call any of them at trial. Trial counsel further explained that although "there could be value" in calling witnesses to corroborate...