Reed v. State

304 Ga. 400

819 S.E.2d 44

REED

v.The STATE.

S18A0624

Supreme Court of Georgia.

Decided: September 10, 2018

Nazish Altaf Ahmed, Atlanta Circuit Public Defender's Office, 100 Peachtree Street, Suite 1600, Atlanta, Georgia 30303, Stephen Randall Scarborough, Stephen R. Scarborough, P.C., 100 Peachtree Street NW, Suite 2095, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Joshua Daniel Morrison, Senior A.D.A., Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, Fulton County Courthouse 136, Pryor St, N.W., 4th Floor, Atlanta, Georgia 30318, Aslean Beth Zachary, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Suite C-640, Atlanta, Georgia 30303, for Appellee.

Benham, Justice.

Appellant Philmore Reed, Jr. resided at a property located at 1020 Donald Lee Hollowell Parkway and operated businesses there and at other contiguous parcels. He was in his mid-seventies when these offenses occurred.¹ At trial, evidence was presented to show that commencing in 2009, appellant was involved in a civil dispute with other parties concerning ownership of these parcels. In late 2010, the party who claimed to be the rightful owner of the parcel on which appellant resided, by virtue of a judicial sale of the property, hired a tow company to enter the property to remove old vehicles parked on it. That tow truck operator left after appellant threatened his life if he came back. In February 2011, the owner hired a different company, and employees Travis Fenty and James Donegan went to the property three different times. On February 3, appellant called the police, and when the police arrived, Fenty and Donegan stated they would not return without the proper documentation to show they had authority from the true owner of the property. On February 24, they came to the property again and towed several vehicles away. When they returned later that day, they saw appellant standing on the roof of the building with a shotgun. Fenty commenced calling 911 and asked appellant to come down to talk, telling him they had with them a copy of the deed showing the person who hired them owned the property. Appellant told the men he was through talking and fired two shots at them. Fenty was struck in the chest with the spray of shotgun pellets from the first shot, and died from his wounds. The evidence showed appellant fired a second shot which hit one of the truck tires.

The police arrived at the scene and took appellant into custody. After being informed of his rights, appellant voluntarily gave a statement in which he confessed to the shooting.

Appellant was charged with murder and other offenses. Following a jury trial, the jury returned a verdict of not guilty on the lesser included offense of voluntary manslaughter, as well as the count alleging aggravated assault upon Donegan. Appellant was found guilty of all remaining counts, and the trial judge sentenced him to life in prison for malice murder plus five years to serve for the possession of a firearm offense. He now appeals.

1. Although appellant does not challenge the sufficiency of the evidence to convict him, it is this Court’s practice to examine the sufficiency of the evidence in murder cases. Viewed in the light most favorable to the guilty verdicts, we conclude the evidence, as summarized above, was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The trial court’s failure to give a jury instruction on no duty to retreat. Appellant asserts that the trial court committed plain error when it failed to instruct the jury on the principle of no duty to retreat. We disagree.

We start by noting that the trial court gave an appropriate charge on the appellant’s sole defense, the defense of habitation. As part of his theory of defense, appellant claims he reasonably believed the victim and his co-worker entered his property for the purpose of committing the felony of theft by taking his vehicles from the property and that his use of force was necessary to prevent that felony, thereby establishing, according to appellant, one of the grounds for the permissible use of force in defending an unlawful entry into a habitation. See OCGA § 16-3-23 (3).² In response to appellant’s request, the trial court gave an instruction on theft by taking. Appellant asserts, however, that the State inserted the issue of duty to retreat into the proceedings when the prosecutor raised during appellant’s cross-examination, and in the State’s closing argument, that appellant could have called the police instead of confronting Fenty and Donegan. At a charge conference, appellant’s counsel made a written request for instructions on what he referred to as "the general principle of justification" and on the principle of no duty to retreat. Both of these instructions were denied, although, as noted, the trial court agreed to give an instruction on defense of habitation. Trial counsel asked to reserve his objection regarding the failure to give these requested instructions until after theall the evidence was presented. Appellant made no further request for these two instructions, however, and made no objection to the failure to give the instructions after the trial court delivered the jury charge. Accordingly, appellant acknowledges that he must show plain error in order to prevail on his assertion that the trial court’s failure to give these instructions constitutes reversible error. See Willis v. State, 304 Ga. 122, 129–30 (2) (c), 816 S.E.2d 656 (2018).

As this Court has repeatedly stated:

In order to establish reversible error under the plain error standard of review for jury instructions, the instruction must not only be erroneous; the error must be obvious; the error must not have been affirmatively waived; and the appellant must make an affirmative showing that the instruction likely affected the outcome of the proceedings. See State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011) ; see also Shaw v. State , 292 Ga. 871, 873 (2), 742 S.E.2d 707 (2013). Only if the appellant has met the burden of proof with respect to these three prongs of the plain error test, the appellate court may, in its discretion, remedy the error if it seriously affects the fairness, integrity or public reputation of the judicial proceedings. [Cit.]

Id. at 129–30 (2) (c), 816 S.E.2d 656. Citing Price v. State ,³ appellant claims the trial court’s failure to give a charge on no duty to retreat was erroneous because a trial court must charge the jury completely on a defendant’s sole theory of defense, even absent a request to do so, if there is some evidence to support the charge.⁴ With respect to the principle of no duty to retreat, appellant argues that the jury charge as a whole was incomplete and not adjusted to the evidence because the jury was not instructed that an individual who is not the aggressor is not required to retreat, and has the right to stand his or her ground and use force in defense of habitation in the manner set forth in OCGA § 16-3-23 (1) or (3).⁵ See OCGA § 16-3-23.1.⁶

Even assuming the evidence showed appellant was not the aggressor and that the jury could find his use of force was justified, and also assuming, without deciding, that the prosecutor’s questions to appellant about why he did not call the police raised the issue of retreat, the trial court’s failure to instruct the jury that a person who is justified in using force to defend a habitation has no duty to retreat does not mandate reversal because the given charge fairly presented appellant’s defense to the jury. See Price , supra, 289 Ga. at 460 (2), 712 S.E.2d 828. The trial court’s instructions covered the law of justification in general. It also specifically covered the law of justification with respect to use of force in defense of habitation "such that all of [appellant’s] defenses could be properly considered, and any ... additional specific instructions by the court on the duty to retreat were unnecessary." Ballard v. State , 297 Ga. 248, 250 (3), 773 S.E.2d 254 (2015). The trial court charged the jury that "[a] person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon habitation." It charged that the use of force which is intended or likely to cause death or bodily harm is justified only, among other reasons, if "the person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein, and that such force is necessary to prevent the commission of the felony." Having reviewed the trial transcript and the entire jury charge, we conclude appellant has failed to make an affirmative showing that the alleged erroneous instructions likely affected the outcome of the proceedings. See Shaw v. State , 292 Ga. 871, 873-874 (2), 742 S.E.2d 707 (2013) (rejecting appellant’s assertion that a charge on no duty to retreat should have been given because he failed to show the alleged error probably affected the outcome since he had a fair opportunity to present his defense of self-defense and the transcript showed the trial court adequately charged the jury on the justification of self-defense). Because appellant has failed to meet the burden of proof to establish one of the mandatory prongs of the plain error test, he cannot prevail on his assertion that the trial court’s jury instructions created reversible...