Thompson v. State
| Decision Date | 07 July 2014 |
| Docket Number | No. A14A0536.,A14A0536. |
| Citation | 761 S.E.2d 413,327 Ga.App. 893 |
| Parties | THOMPSON v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Raina Jeager Nadler, for Appellant.
D. Victor Reynolds, Marietta, Amelia Greeson Pray, for Appellee.
Donald Thompson was convicted of two counts of voluntary manslaughter 1 as a lesser included charge of murder and felony murder, one count of pointing a firearm at another 2 as a lesser included charge of aggravated assault, four counts of reckless conduct,3 AND ONE COUNT Of cruelty to children in the third degree.4 The trial court denied Thompson's motion for new trial, and he appeals, arguing that (1) the trial court erred by failing to grant his motion for pretrial immunity based on self-defense; and (2) he received ineffective assistance of counsel. For the reasons that follow, we affirm.
Viewed in favor of the verdict,5 the facts show that then 17–year–old Thompson met his then 15–year–old girlfriend, Jessica Lecroy, on the internet, and he traveled from his home in Savannah, Georgia, to the home of her mother, Opal, in Marietta, Georgia, in order to visit Jessica. Thompson first visited Jessica in September 2009. Thompson visited Jessica again in April 2010, but the two fought, and in May 2010, Jessica's uncle took Thompson to the bus station so he could return home to Savannah. Thompson was allowed to return to the Lecroy home later that summer, and he secured a job in the area.
On October 23, 2010, Opal was visiting her sister-in-law's home in Newnan, Georgia, and she attempted to speak with Jessica on the phone, but Thompson tried to prevent it. Opal, accompanied by her niece, Amanda Hawkins, went back to Marietta to confront Thompson and tell him to leave her home. Amanda's boyfriend, Daniel Langley (who was 19 at the time), Daniel's brother, Tyler (who was 16 at the time), and their friend, Josh Marando, traveled separately to meet Opal and her companions at the home. Upon learning of their intention to come to the home, Thompson told Jessica that he would hurt them if they lay a finger on him. Thompson also told Officer David L. Smith that he was “going to be prepared for them.”
When Opal and the others arrived at the home, Thompson unlocked the doors for them, and he and Amanda began to argue at which point Thompson pushed Amanda against the wall, tearing her shirt. Opal called Daniel, Tyler, and Josh (who had been waiting outside) into the house after Thompson pushed Amanda, and Opal searched for her home phones, which had been hidden under her mattress.
Daniel entered the living room to check on Jessica, whom Thompson had told to stay on the couch, but Thompson was standing in the middle of the room holding a silver .38 caliber handgun, which he pointed at Daniel and told him to “stop before I kill you.” While Josh tried to pull Daniel away from the area, Tyler circled around the hallway to try and disarm Thompson by grabbing him across the chest and pushing his weapon hand away from Daniel. Thompson was able to get his arm away from Tyler's reach and shot him in the abdomen, causing Tyler to fall backward. Josh pulled Amanda out of the room after the gunshot, and Daniel attempted to retreat down the hall, but Thompson shot him in the back. As the wounded Tyler crawled onto the couch, Thompson shot him in the forehead just above his eyebrow from only a few inches away. Tyler died from this injury.6
1. Thompson contends that the trial court erred by denying his motion for pretrial immunity pursuant to OCGA § 16–3–24.2 based on self-defense. We disagree.
OCGA § 16–3–21(a) states that
[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.
“In reviewing the denial of a motion for pretrial immunity, we must view the evidence in the light most favorable to the trial court's ruling and accept the trial court's findings of fact and credibility determinations if there is any evidence to support them.” 7 The trial court assesses such motions under the preponderance of evidence standard, which
means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other. Nothing in this standard requires the elimination of all fact disputes as a matter of law. Rather, the standard requires only that the finder of fact be inclined by the evidence toward one side or the other. 8
Thompson has not shown that the trial court erred by denying his motion for pretrial immunity. At the motion in limine hearing, the superior weight of evidence showed that Thompson (who was at most a house guest of Opal, who came to her own home in order to make Thompson leave) intended to use deadly force against the Langleys before they arrived at the scene, that Thompson brandished the weapon against them after physically attacking Hawkins and before any physical threat was made toward him, and that Thompson continued to use an unnecessary level of force by shooting an already injured Tyler in the head at close range and shooting a fleeing Daniel in the back. As such, there was no error on the part of the trial court in the denial of the motion for pretrial immunity.9
2. Thompson raises multiple claims of ineffective assistance of counsel.
Under Strickland v. Washington,10
[i]n order to establish ineffectiveness of trial counsel, appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court's determination of a claim of ineffective assistance of counsel, we give deference to the trial court's factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court's legal conclusions de novo.11
(a) First, Thompson argues that trial counsel was ineffective for failing to hire an expert to rebut the testimony of the medical examiner regarding whether Tyler could have been holding the weapon when it discharged.
On cross-examination of the medical examiner, the following exchange occurred:
Thompson argues that the medical examiner incorrectly stated that the proper way to assess the existence of gunshot residue is through a visual inspection of the individual's skin. Thompson contends that his trial counsel was ineffective because he failed to properly prepare for the medical examiner's testimony, failed to present expert testimony in rebuttal to the testimony, and failed to request a continuance to present rebuttal evidence regarding this testimony. Thompson contends that because of counsel's failures, the jury was allowed to hear without rebuttal the medical examiner's erroneous statement regarding the test for gunshot residue and his equally erroneous conclusion based thereon that Tyler was not holding the gun in his hand when the first shot impacted his abdomen.
Thompson contends that this was prejudicial to him because it removed as a possible conclusion the hypothesis that Tyler and he were wrestling over the weapon, which accidentally discharged or was fired by Tyler himself, which trial counsel admitted at the motion for new trial hearing. Thompson also presented at the motion for new trial hearing an expert affidavit stating that the medical examiner testified incorrectly regarding the type of test used to detect gunshot residue; however, the affidavit does not contain any information regarding the individual's qualifications.
As counsel explained in an ex-parte hearing on the matter and at the motion for new trial hearing, At trial, counsel presented Thompson's claim of...
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