Floyd v. State

898 S.E.2d 431

FLOYD

v.The STATE.

S23A1042

Supreme Court of Georgia.

Decided: February 20, 2024

Superior Court, Newton County, Jeffrey L. Foster, 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, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Randal Matthew McGinley, District Attorney, Alcovy Judicial Circuit District Attorney’s Office, 303 S. Hammond Drive, Suite 334, Monroe, Georgia 30655, Bailey Rachel Simkoff, Alcovy Judicial Circuit District Attorney’s Office, 1132 Usher Street, Room 313, Covington, Georgia 30014, for Appellee.

Boggs, Chief Justice.

Appellant Darnell Rene Floyd challenges his conviction for felony murder predicated on possession of a firearm by a convicted felon in connection with the shooting death of Telmo Ortiz. At trial, Appellant contended that he acted in self-defense, and he was acquitted of malice murder; felony murder predicated on attempted armed robbery and aggravated assault; and two counts of aggravated assault.¹ On appeal, Appellant chal- lenges only the felony murder and felon-in-possession convictions. He contends that his trial counsel was constitutionally ineffective in several ways related to counsel’s handling of the interplay between self-defense and possession of a firearm by a convicted felon. We agree and accordingly reverse, but because the evidence against him was constitutionally sufficient to authorize the conviction, he may be retried.²

1. The evidence presented at trial showed the following.³ The shooting took place on September 9, 2017, at the home of Caitlyn Croft and her twin sister, Casie Croft, who was Ortiz’s girlfriend. Caitlyn and Casie were present at the time, as was Destiny Welch, a mutual friend of everyone present.

Over a year before the shooting, Appellant, who was a convicted felon,⁴ was at a bar and encountered Ortiz for the first time. Words were exchanged between Appellant’s friends and Ortiz’s friends, and Ortiz and one of his friends left the bar and retrieved guns from a car. As Appellant and a friend left the bar, Ortiz and his friend approached Appellant with guns in their hands and made threatening gestures toward Appellant and Appellant’s friend. Appellant’s friend pulled him away, and they got into Appellant’s car and left. About a week later, Appellant saw Ortiz again at the bar and told him, "[Y]ou can’t be out here pulling guns on people because everyone is not just going to bow down." Ortiz responded, "I don’t give a f**k, I’m just the type of mother**cker that you just going to have to bust me." The two continued to talk for a short while longer, and then Appellant went to a different area of the bar.

About a month before the shooting occurred, Welch told Appellant that Ortiz was offering to sell a gun, and Appellant and Ortiz met at Casie and Caitlyn’s house to discuss the purchase. Appellant declined to buy the gun because Ortiz had raised the price of the gun from the earlier price he had quoted Welch. A short time after this encounter, Ortiz’s brother, or another person, stole cell phones from Welch and a friend of Welch’s; Ortiz later came into possession of the phones.⁵ Welch’s friend, with the assistance of Casie, was able to recover her phone from Ortiz by paying him for it, and Ortiz likewise told Welch she would have to pay him to get her phone back. Welch then communicated with Casie and Caitlyn to try to recover the phone, but she was unable to get her phone back.

At about 10:30 p.m. on the night the shooting occurred, Appellant and Welch drove to the house where Casie and Caitlyn lived so that Welch could try to get her phone back. When Appellant and Welch arrived at the house, Appellant parked his SUV facing the street, between the unpaved driveway and a large tree near the front porch of the house. Welch stepped out of the SUV and spoke to Caitlyn, who was on the front porch. Welch told Caitlyn that she wanted to get her phone back and wanted to speak to either Casie or Ortiz about it. Caitlyn told Welch that Casie and Ortiz were not there, but Caitlyn contacted Ortiz to tell him that Appellant and Welch were at the house. Caitlyn then went over to the SUV and visited with Welch’s child, who was in a car seat in the backseat. Caitlyn saw a "shotgun" in the backseat.

Shortly thereafter, Ortiz and Casie returned, drove past the SUV, and parked behind the house. Before Casie and Ortiz exited the car, she handed him a handgun, and he put it in the waistband of his shorts. Ortiz walked to the SUV on the driver’s side where Appellant was sitting, and Casie walked to the passenger side of the SUV. Caitlyn returned to the front porch. The witnesses provided conflicting pretrial statements and testimony about what happened next.

According to Appellant’s testimony at trial, he drove Welch and her child to Caitlyn and Casie’s house, believing that Welch was going to be dropping her child off with Caitlyn and Casie to babysit. Although he was aware that Ortiz had Welch’s stolen cell phone, he did not know that Ortiz lived there as well. When Ortiz arrived at the house, Ortiz approached the driver’s side window and asked, "[W]hat’s up." Appellant asked Ortiz about Welch’s cell phone, and Ortiz responded that he had paid for it and that if Appellant wanted it back, he would have to pay for it. Appellant accused Ortiz of robbing women for cell phones and saw Ortiz lift the hem of his shirt and reach for a firearm in his waistband. Appellant then opened the car door to deflect the gun and stepped out of the car, carrying a nine-millimeter handgun in his pocket and another handgun in his waistband. The door hit Ortiz, who started pulling out his gun and lunging at Appellant, but Ortiz’s gun seemed to get "stuck on something." Appellant pulled the nine-millimeter gun out of his pocket and fired at Ortiz. Appellant did not point his gun at Ortiz’s face or tell Ortiz to "run [his] pockets." When Appellant saw Ortiz with the gun in his hand and trying to pull it out of his waistband, Appellant feared for his life; after Appellant fired one shot, Ortiz continued to pull his gun out. Appellant fired another shot, and Ortiz began to turn and run away, but Ortiz started to turn back, and Appellant could see the gun "all the way out." Appellant then fired a third shot.

Appellant’s account was contradicted by Caitlyn’s statements and testimony. Caitlyn made several statements at the scene to officers, which were audio- and video-recorded on officers’ body cameras; a portion of the videos was played for the jury. When the first officer arrived at the scene in response to a 911 call, Caitlyn said she had not seen anything. A few minutes later, in response to questions from another officer, Caitlyn said she could explain what happened. She said that Ortiz bought a phone that been stolen from Welch. She told the officer that Appellant demanded the phone from Ortiz and threatened him if he did not give Appellant the phone and that Ortiz said he did not have it and told Appellant to "check my pockets." Then Ortiz started running, at which point Appellant shot him. Later, after Caitlyn and Casie had been in the house together outside of the officers’ presence, an officer asked Caitlyn to come out to the porch and "walk me through it." In this conversation, Caitlyn’s description of the events was that Appellant confronted Ortiz about the phone and then tried to rob Ortiz, and Appellant pulled a gun first. Ortiz pulled out his gun in response to Appellant’s threat to rob him, and Appellant told him, "Run your pockets." Ortiz responded, "[N]o," and started to run toward the house, and Appellant shot him in the back as he ran. Later that evening, in response to a request to give a statement at the police station, Caitlyn said "I didn’t see it, only my sister did."

In her trial testimony, Caitlyn said that she was on the front porch when Ortiz and Casie were standing by Appellant’s SUV; that it was dark; and that there was some lighting allowing her partially to see Ortiz and Casie, although the railing around the front porch blocked her view in part. She did not hear the conversation between Appellant and Ortiz until Appellant raised his voice. She saw Appellant exit the car and pull a gun. Then she saw the door hit Casie, who was standing next to Ortiz. Caitlyn saw Appellant point the gun at Ortiz’s head and heard Appellant tell Ortiz to empty his pockets. She also testified that Ortiz was holding his hands at his side with his palms out and told Appellant he would not empty his pockets. Appellant then told Ortiz he would shoot, and Ortiz responded, "[S]hoot." Appellant then shot Ortiz and fired the gun two more times. Caitlyn said she heard Ortiz fall, she did not see Ortiz holding his gun or gesture as if he were going to pull a gun, and she did not hear Ortiz threaten Appellant.

On the evening of the shooting, Casie gave a statement to officers at police headquarters; this statement was audio-recorded and played for the jury. According to Casie, when she and Ortiz heard Appellant and Welch were at Casie’s house, she believed it was about Welch’s cell phone. When she and Ortiz arrived back at the house, they walked up to the driver’s side of Appellant’s car; Ortiz had his gun "behind his pants" at the time. Appellant asked Ortiz where the phone was, demanded that Ortiz give it to him, said he was not going to pay for it, and asked why Welch should have to pay for her own phone. Ortiz responded that he had paid for it and did not know it had been stolen. Appellant then jumped out of the SUV with a pistol and told Ortiz to empty his pockets. Ortiz said he would not do that and...