Terrell v. State

• Decision Date: 01 February 2022
• Docket Number: S21A0942
• Parties: TERRELL v. THE STATE.
• Court: Georgia Supreme Court

TERRELL v. THE STATE.

No. S21A0942

Supreme Court of Georgia

February 1, 2022

MCMILLIAN, JUSTICE.

In 2005, a jury found Frederick Terrell guilty of felony murder aggravated assault, and other crimes related to the shooting death of Tashiba Matthews.^[1] On appeal, Terrell asserts that he is entitled to a new trial based on the inordinate delay of his appeal the State's improper comment on his right to remain silent, the denial of his motion to sever, the denial of his motion for mistrial, constitutionally ineffective assistance of counsel, and the prejudicial effect of the combined errors of the trial court and counsel. For the reasons that follow we affirm, except that we vacate in part to correct a sentencing error.

The evidence presented at trial showed that in September 2004, Terrell lived in an apartment located on James P. Brawley Street in Atlanta ("the apartment"), along with Lesia Gilliam, whom he considered to be his aunt, and co-defendant Michael Stinchcomb. Lesia is co-defendant Kelvin Gilliam's mother. On September 5, Stinchcomb got into a dispute with Janet Lymon over a portion of drugs they were supposed to be splitting and punched her in the eye while they were arguing outside the apartment. A. H., a 13-year-old boy who knew Janet from the neighborhood, saw Stinchcomb strike her. A. H. lived in a nearby house on James P. Brawley Street ("the house"), just down the street from the apartment, with his grandmother, sisters Matthews and Keretesha Hines, their mother Unita Hines, and Keretesha's boyfriend Anthony Taylor. When he arrived home, A. H. told his family what he had seen, and the news reached Janet's daughter, Karen Lymon.

Karen joined her boyfriend, Paul Smith, and multiple friends at the house, and the group walked down the street to the apartment to question Stinchcomb about hitting Janet. When they arrived, Karen saw her mother's injuries and confronted Stinchcomb outside the apartment. Stinchcomb retreated inside, and several people followed, pushing their way past Lesia at the apartment door.

Karen, Smith, and at least one other friend began beating Stinchcomb.

Multiple witnesses testified that shortly after the incident with Stinchcomb, they saw a car stop in front of the house and four men, including Terrell, get out of the car. Terrell yelled, "I'm fittin to kill all y'all motherf***ers" and shot multiple times in the direction of the people sitting on the front porch.^[2] Stinchcomb pointed out two women, who were running away, and said, "There go two of them right there." Before leaving, Terrell told Unita, "Tell that b***h, [Paula Mathis] and [Karen], [I'm] going to kill them when [I] see them. As a matter of fact, anybody off this porch come down this street, I'm going to kill them."

Matthews, who was inside the house at the time, walked down the street with her boyfriend, Broderick Stallings, to talk to Terrell when she learned that Terrell had shot at the house. Neither Matthews nor Stalling were armed, but Matthews was friends with Terrell and thought that she would be able to reason with him. However, as Matthews and Stallings approached the apartment, Terrell fired multiple rounds at them, fatally striking Matthews. Terrell, Stinchcomb, Gilliam, and Parks then fled the scene in Gilliam's car.

Officer Thomas Burns of the Atlanta Police Department responded to a call of shots fired from a brown Crown Victoria occupied by four men in the area of James P. Brawley Street and Neal Street. As he was approaching the scene, Officer Burns noticed a vehicle with a tag number matching that provided to the 911 dispatcher and initiated a stop of the vehicle. Responding officers located four men in the vehicle; the front passenger, later identified as Terrell, had a rifle on his lap and an extra magazine containing 9mm ammunition in his front left pocket.

When police officers arrived at the house, there were a lot of people milling around outside. Officers discovered two 9mm shell casings on the ground and several bullet holes in the house. Officers located Matthews's body on the street outside the apartment and retrieved four 9mm shell casings nearby. Two witnesses at the scene said that they saw "Boochie" shoot Matthews and later identified Terrell's photo in a photographic lineup as Boochie. The medical examiner testified that Matthews died from a single gunshot wound to the head. A GBI firearms examiner testified that the firearm recovered from Terrell had fired the bullet that killed Matthews, as well as each of the casings recovered from the crime scenes.

Co-indictee Dwight Parks testified that soon after the confrontation between Stinchcomb and Janet, Terrell called to tell him what had happened and said that he was coming to Parks's house and that Gilliam would pick them up so they could go check on Lesia. According to Parks, when Terrell got to his house, Terrell was upset and said he was going to shoot Stallings, Matthews's boyfriend. Parks did not know why Terrell thought Stallings was involved in the incident. Gilliam arrived in a brown four-door Crown Victoria, and Parks noticed a rifle leaning against the front passenger seat where Terrell sat. When the three men arrived at the apartment, Terrell and Gilliam went inside for a few minutes and returned with Stinchcomb, whose mouth was "busted up." Gilliam drove them down the street to the house, and Stinchcomb began pointing out people, saying, "There they go. There they go." Terrell then started shooting in the direction of the porch. Everyone got back in the car, and they returned to the apartment. Parks was walking away from the car when he heard gunfire again and ran behind a wall. When he realized it was Terrell shooting, he thought, "[T]hat guy done went crazy." Lesia started yelling at them "to get the hell out of here," and the four men got back into the car and drove away.

Terrell testified on his own behalf at trial and admitted that he went to the house that evening "to get answers" after a group had broken into and "trashed" his apartment. However, Terrell claimed that Stallings was standing in the doorway with a gun and that Stallings first raised the gun and shot toward him.^[3] Terrell responded with two or three shots before the four men returned to the apartment in Gilliam's car. While Terrell remained outside the apartment talking to Lesia, he saw Stallings and Matthews walking towards the apartment. Terrell claimed that Stallings raised a handgun at him, so he picked up his rifle and fired at Stallings two or three times in self-defense. Terrell also testified that he had spoken with Stallings a few days before the shooting and learned that Stallings had recently been released from prison after serving ten years for what Terrell believed to be murder. Terrell claimed that he had brought a gun with him to the house because he "knew what kind of people [he] was up against."

1. Terrell first asserts that he is entitled to a new trial based on the inordinate delay of his appeal. Specifically, Terrell contends that, because of the delay in his appeal, a change in the law in 2018 regarding the presumption of harm from a defendant's use of peremptory strikes on a juror who should have been excused for cause made his appeal on this basis less likely to be successful. We disagree.

We begin our analysis by setting out the four factors relevant to a due process claim premised on appellate delay: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. See Dawson v. State, 308 Ga. 613, 623 (4) (842 S.E.2d 875) (2020). In the context of appellate delay, "prejudice, unlike in the speedy trial context, is not presumed but must be shown." Id. (citation and punctuation omitted). This Court has "repeatedly found that the failure to make this showing of prejudice in an appellate delay claim [is] fatal to the claim, even when the other three factors weigh in the appellant's favor." Id. (citation and punctuation omitted). And finally, in this context, the necessary prejudice "is prejudice to the ability of the defendant to assert his arguments on appeal and, should it be established that the appeal was prejudiced, whether the delay prejudiced the defendant's defenses in the event of retrial or resentencing." Chatman v. Mancill, 280 Ga. 253, 260 (2) (e) (626 S.E.2d 102) (2006).

The record shows that Terrell was represented at trial by Lawrence Lewis; Lewis timely filed a motion for new trial and a motion to withdraw on May 2, 2005. The trial court entered an order appointing the Public Defender's Office as appellate counsel on June 7, 2005, and an order permitting Lewis's withdrawal from representation on June 12, 2005. Although Terrell was purportedly represented by two different attorneys in the following years, his appeal did not progress. Terrell, however, contacted the clerk's office numerous times to ask about his appeal and filed a motion for the appointment of appellate counsel in February 2017. Terrell's current counsel was appointed in March 2017, and counsel later amended the motion for new trial in April 2019 to raise a claim regarding post-trial delay.

To show prejudice by the appellate delay, Terrell points to the voir dire of Juror No. 3, whom he claims should have been excused for cause. He asserts that Juror No. 3 stated that she might be influenced by her cousin's conviction for armed robbery and her ex-boyfriend's shooting that occurred when he was the victim of a carjacking. With respect to her cousin's conviction, Juror No. 3 explained, "Well, I felt like he had committed the crime. He was on drugs and he needed money and he committed the crime. So I felt like the verdict was just." When asked whether she...