Anthony v. State

311 Ga. 293

857 S.E.2d 682

ANTHONY

v.The STATE.

S21A0089

Supreme Court of Georgia.

Decided: April 19, 2021

Charles H. Frier, for appellant.

Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Lyndsey H. Rudder, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant Attorney General, for appellee.

Warren, Justice.

Terrone Anthony was convicted of malice murder, armed robbery, and possession of a firearm during the commission of a felony in connection with the shooting death of Kavader McKibben.¹ On appeal, Anthony contends that his trial counsel provided constitutionally ineffective assistance in four ways. We disagree and affirm Anthony's convictions.

The evidence presented at Anthony's trial showed the following.² On the evening of December 4, 2009, Anthony and an accomplice entered a liquor store where McKibben was working. Anthony—who was wearing a ski mask—pointed a firearm at McKibben while the accomplice searched McKibben's pockets and took belongings from him and money from a cash register. McKibben's co-worker, Roland Williams, began walking toward the back of the store, and Anthony followed. A shoot-out ensued shortly thereafter. The store owner pulled a gun and fired at Anthony, striking him in the leg. Anthony fired back, and in doing so struck McKibben three times. As Anthony reached to open the door and leave, the owner shot Anthony in the arm. Anthony limped out of the store, holding his arm. A security guard across the street followed Anthony to a nearby house where Anthony stopped, having left behind a trail of blood from the liquor store. When police officers arrived, they found Anthony bleeding profusely, clad in the same camouflage jacket that witnesses described the shooter wearing. McKibben died at the liquor store from his wounds. Anthony and his friend, Aaron Jackson, were arrested.

At trial, video surveillance of the shoot-out was played for the jury. Anthony testified and admitted that he entered the store while wearing a mask, held a gun while his accomplice took money from McKibben, ran toward the back of the store because he thought an employee was probably going to get a gun, and then fired his gun at the store owner after the owner shot Anthony in the leg. However, he denied that he planned to shoot anyone or intended to do so when he entered the liquor store. Anthony also testified that his accomplice was not Jackson, but another person. The trial court charged the jury on mutual combat and justification. The jury found Anthony guilty of malice murder, armed robbery, the firearm offense, and other offenses that were vacated by operation of law or merged for sentencing purposes, and found Jackson not guilty on all counts.

1. 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. See 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 carry the burden of overcoming this presumption, a defendant "must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not." Davis v. State , 299 Ga. 180, 183, 787 S.E.2d 221 (2016). "In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course." Id. (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. See Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "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).

2. Anthony's first claim is that his trial counsel was ineffective because he did not seek a mistrial when the State discovered that the indictment mistakenly alleged that Anthony was a convicted felon. This claim fails, however, because the record shows that trial counsel made a reasonable, strategic decision to request a curative instruction and chose not to request a mistrial.

Anthony was charged with possession of a firearm by a convicted felon based on a prior burglary conviction and was charged with felony murder predicated on that firearm offense; the indictment charging those counts was read to the jury. However, shortly before the State rested its case at trial, the prosecutor discovered that Anthony was in fact a first-offender probationer and not a convicted felon. As a result, the prosecutor moved to nolle pros the two convicted-felon counts and asked the trial court for a curative instruction. Anthony, Jackson, and their attorneys discussed the issue, and Anthony's counsel announced that he would not be requesting a mistrial, only a curative instruction. The trial court told Anthony that he had "to pick. I'm neutral as to which one, but I need an answer." Anthony himself confirmed that he wanted to proceed in the way that his counsel announced: to request a curative instruction instead of a mistrial. The trial court then gave the following curative instruction that his counsel and Jackson's counsel proposed:

[A]t the commencement of this trial, I read the indictment to you, and I read to you a charge that alleged that Mr. Terrone Anthony was a convicted felon and a charge of felony murder as to Mr. Terrone Anthony based upon the claim that he was a convicted felon. Let me now advise you that the State has advised me that count 8 is a mistake. Terrone Anthony is actually not a convicted felon, so this count is now removed from your consideration in this indictment, as is count 3, which is the felony murder charge based upon that claim. You are, therefore, not to consider either of these charges. You are to disregard anything that I might have read to you or said to you associated with those charges because they are, in fact, a mistake by the State.

The trial court later directed verdicts of not guilty on the two counts at issue. At the hearing on the motion for new trial, Anthony testified that his trial counsel told him that a mistrial was "nothing," that Anthony should not "go for" a mistrial, and that trial counsel "like[d] the jury that we selected." Trial counsel testified that he and Jackson's attorney "liked the jury" and that he thought the trial court "had cured" the problem with the indictment with its instruction.

Given that the convicted-felon counts of the indictment were read only once, that trial counsel wanted to try Anthony's case in front of the jury that he had already selected, that Anthony agreed to trial counsel's recommendation to seek a curative instruction and not a mistrial, and that the trial court informed the jury that the State had made a "mistake" in the charges because Anthony was not actually a convicted felon, Anthony has failed to show that his trial counsel's decision not to request a mistrial was objectively unreasonable. See, e.g., Lynn v. State , 310 Ga. 608, 613-614, 852 S.E.2d 843 (2020) (considering that a witness's reference to a prior jury in the case was brief and counsel's explanations for the decision not to move for mistrial were reasonable, defendant did not show that that decision was constitutionally deficient); State v. Goff , 308 Ga. 330, 335, 840 S.E.2d 359 (2020) (given the fleeting, nonspecific nature of trial counsel's reference to the defendant's probation status, trial counsel was not objectively unreasonable when he did not move for a mistrial because he thought " ‘we had a pretty good jury and a pretty good trial going’ ").

3. Anthony claims that his trial counsel was ineffective because he put Anthony on the witness stand to admit that he was one of the people who robbed the liquor store and that he shot McKibben. We disagree.

The primary thrust of this claim is that trial counsel "forced" Anthony to testify and admit to his role in the robbery and shooting, even though Anthony wanted to present a defense that he had gone to the liquor store only to collect money that McKibben owed Anthony's friend for drugs—a theory that he claims trial counsel did not investigate. Anthony relies on his testimony at the hearing on his motion for new trial to support this claim. Prior to his testimony at trial, however, Anthony personally affirmed his decision to testify. And the trial court was authorized to credit trial counsel's testimony at the hearing on Anthony's motion for new trial that trial counsel recommended to Anthony that he not testify, and that counsel had never been informed about the alleged drug-debt theory Anthony later described.

Although the trial court made no express factual findings or credibility determinations in its order denying Anthony's motion for new trial, it was nonetheless "authorized to credit the testimony of [Anthony's] counsel," "[a]nd in the absence of explicit factual and credibility findings by the trial court, we presume implicit findings were made supporting the trial...