Beard v. State

896 S.E.2d 497

BEARD

v.The STATE.

S28A0906

Supreme Court of Georgia.

Decided: December 19, 2023

Superior Court, DeKalb County, Asha F. Jackson, Judge

Matthew Kyle Winchester, Law Offices of Matthew K. Winchester, Garland Law Building, 3151 Maple Drive NE, Atlanta, Georgia 30305, Jason Michael McLendon, McLendon Law Firm, LLC, 1800 Peachtree Street NW, Suite 300, Atlanta, Georgia 30309, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Chelsea Sharonlyn-Clyde Harvey, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Deborah D. Wellborn, A.D.A., Lenny I. Krick, A.D.A., Sherry Boston, District Attorney, Drew Healy, A.D.A., Dekalb County District Attorney’s Office, 556 North McDonough Street, Decatur, Georgia 30030, for Appellee.

Boggs, Chief Justice.

Appellant James Leon Beard III challenges his convictions for felony murder and a firearm offense arising out of the shooting death of his wife, Angela Bishop. Appellant contends that the trial court committed plain error by failing to give the jury a no duty to retreat instruction and by giving the jury a sequential unanimity instruction on the lesser offense of involuntary manslaughter. Appellant also asserts that he was denied effective assistance of counsel and that the cumulative prejudice from the trial court’s errors and his trial counsel’s deficiencies entitles him to, a new trial. However, as explained below, Appellant has not demonstrated that the failure to instruct on no duty to retreat affected his substantial rights or that the trial court erroneously instructed the jury regarding the lesser offense, so he has not shown plain error. Moreover, Appellant has not shown deficiency and prejudice as required to establish ineffective assistance of counsel. Finally, the cumulative prejudice from an assumed trial court error and assumed deficiencies by trial counsel does not entitle him to a new trial. Accordingly, we affirm.¹

1. The evidence at trial showed as follows. Appellant and Bishop began a romantic relationship in 2003 and had four children together. Appellant and Bishop argued often, which led to physical altercations. Appellant had moved to the Atlanta area, but Bishop still lived in South Carolina with her extended family and the children. Two weeks before the shooting, the couple married.

Bishop and the children visited Appellant in Atlanta every few weeks, were going to move there, and had plans to visit Appellant on the weekend of the shooting. On the night of March 31, 2017, Bishop and the children arrived at Appellant’s apartment complex around midnight. The children waited in the car while Bishop went upstairs to Appellant’s second-floor apartment to see if he was awake. Bishop knocked on Appellant’s door. Appellant opened the door, Bishop screamed, and Appellant shot her in the center of her chest. Appellant then dragged Bishop down the stairs, threw his gun into the woods behind the apartment building, and put Bishop into the front passenger seat of her car. A bystander called 911, and the police arrived as Appellant was attempting to leave in the car with Bishop and the children. Bishop died from the gunshot wound.

Appellant told the police at the scene that he heard knocking on his door but that when he looked through the peephole, it was blocked. Appellant claimed that when he opened the door, "the gun went off." Later at police headquarters, Appellant told a detective that Bishop "slapped" him when he opened the door.

At trial, family and friends of Bishop testified about her tumultuous relationship with Appellant, including an instance when Bishop said that Appellant choked her until she blacked out and at least two instances when Bishop said that Appellant threatened her with a gun. Michelle Deutch, an expert on domestic violence, testified among other things that displaying a gun can be a form of intimidation that is consistent with an abusive relationship. A GBI firearms investigator testified that Appellant’s gun would, likely not fire accidentally.

Appellant testified in his own defense, denying that he ever initiated a physical fight with Bishop, threatened her with a gun, choked her, or threatened to kill her. According to Appellant, on the day of the shooting, Bishop texted him to say that she and the children were not coming to visit him that weekend. Appellant said that he was trying to get them to come and that his last text with Bishop was around 4:00 or 5:00 p.m. when his cell phone ran "out of minutes." Appellant testified that between 11:00 p.m. and midnight, he heard someone moving the doorknob to his apartment and what sounded like someone trying to kick in his door. Appellant said that because he was the maintenance man at his apartment complex, he was aware of previous home break-ins and shootings there, and he claimed that he thought that an intruder was trying to break into his apartment. Appellant also said that he looked through the peephole, but the person at the door was covering it, and that he asked through the door who was there three times, but there was no response. Appellant testified that he then grabbed his gun, opened the door, and looked to the right towards the stairs, and that his gun "went off’ when someone "struck" him with "a fist" on the left side of his face. Appellant further testified that after shooting Bishop, he dragged her down the stairs because she was too heavy to carry, and that he was preparing to transport her to the hospital in her car when the police arrived. According to Appellant, the detective who interviewed him at police headquarters made comments about his "face being swollen."

On cross-examination, Appellant admitted that his gun had never accidentally gone off before and that when he shot Bishop, he had his finger on the trigger of his gun and "intended to pull the trigger." However, he claimed that he did not know that the person he was shooting was Bishop; whom he said he did not see at all. The distance between his door and the wall to his left where he claimed Bishop stood was only about two to two-and-a-half feet.

[1–3] 2. Appellant contends that the trial court committed plain error by failing to give a no duty to retreat jury instruction. Appellant did not request such an instruction and did not object to the jury charge as given, Thus, as Appellant acknowledges, we review this claim only for plain error. See OCGA § 17-8-58 (b).

The plain-error standard has four prongs. First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally Relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rattier than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.

Reese v. State, 317 Ga. 189, 195, 891 S.E.2d 835 (2023) (cleaned up). Appellant must satisfy all four prongs to succeed on this claim. See id.

[4, 5] Trial courts have a duty to ascertain the law applicable to each case and to instruct the jury accordingly, See Gilchrist v. State, 270 Ga. 287, 288, 508 S.E.2d 409 (1998). To authorize a jury instruction, there must be at least "slight evidence" supporting the instruction. Munn v. State, 313 Ga. 716, 722, 873 S.E.2d 166 (2022). Appellant asserts that the trial court obviously erred in Ming to instruct the jury on OCGA § 16-3-23.1, which says:

A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force.

We have explained that such an instruction "is required only when the issue of retreat is raised by the evidence or placed in issue." Whittaker v. State, 317 Ga. 127, 133, 891 S.E.2d 849 (2023) (cleaned up).

Assuming without deciding that retreat was raised by the evidence or placed in issue, that the trial court’s failure to instruct the jury on no duty to retreat was a clear or obvious error, and that Appellant did not affirmatively waive the error, Appellant has not shown that the lack of a retreat instruction affected his substantial rights. Even when retreat is raised by the evidence or otherwise placed in issue, we have held that reversal is not required for failure to give an instruction on no duty to retreat when the jury is otherwise properly instructed on justification and self-defense. See, e.g., Ballard v. State, 297 Ga. 248, 250-251, 773 S.E.2d 254 (2015); Edmonds v. State, 275 Ga. 450, 454, 569 S.E.2d 530 (2002). Although some of us question the correctness of that case law, Appellant has not argued that these cases were wrongly decided, but more importantly, he has not demonstrated that the lack of an additional specific instruction on no duty to retreat affected the outcome of his trial. See Whittaker, 317 Ga. at 134, 891 S.E.2d 849. See also Shaw v. State, 292 Ga. 871, 871, 873-874, 742 S.E.2d 707 (2013) (affirming conviction because the defendant "had a fair opportunity to present evidence of his claim of self-defense through his own testimony at trial" and because "[t]he charges given … fairly informed the jury as to the law of self-defense").

[6] 3. Appellant also claims that the trial court...