Anthony v. State
311 Ga. 293
Ga.2021Background:
- December 4, 2009: Anthony (masked) and an accomplice robbed a liquor store; during a shootout Anthony was shot and returned fire, fatally wounding store employee Kavader McKibben.
- Surveillance video and witness testimony placed Anthony at the scene; Anthony testified and admitted entering masked, holding a gun, participating in the robbery, and firing his weapon but denied intent to kill or preplanning to shoot.
- Indictment erroneously alleged Anthony was a convicted felon; the error was discovered at trial, the State nol prossed those counts, and the trial court gave a curative instruction; directed verdicts were later entered on those counts.
- At a joint trial (Aaron Jackson acquitted), the jury convicted Anthony of malice murder, armed robbery, and possession of a firearm during commission of a felony; Anthony was sentenced to life plus terms.
- Anthony moved for a new trial, amended it years later, and appealed claiming four instances of ineffective assistance of counsel relating to: (1) not seeking a mistrial over the felony-status error; (2) being put on the stand and admitting guilt; (3) ineffectual closing; and (4) counsel’s concession of armed robbery (and implicit felony-murder concession).
Issues:
| Issue | Plaintiff's Argument (Anthony) | Defendant's Argument (State / Trial Counsel) | Held |
|---|---|---|---|
| 1) Counsel failed to move for mistrial after indictment mislabeled Anthony as a convicted felon | Trial counsel should have sought a mistrial because the jury heard the felon allegation | Counsel reasonably chose a curative instruction to preserve the chosen jury and the court removed those counts | Denied — counsel’s decision was a reasonable, strategic choice; Anthony consented and curative instruction cured error |
| 2) Counsel forced Anthony to testify and elicited admissions of robbery and shooting | Counsel coerced testimony and admitted damaging facts despite alternate (drug-debt) defense theory | Anthony affirmed decision to testify; counsel testified he advised against testifying and was unaware of the drug-debt theory | Denied — trial court credited counsel; no deficient performance shown |
| 3) Counsel’s closing was ineffective (e.g., “I don’t have a defense”) | Closing conceded too much and failed to press defenses (mutual combat/justification) or force State to meet burden | Counsel’s full argument strategically conceded lesser charges to retain credibility while arguing lack of malice and causation; other defenses were weak given evidence and testimony | Denied — closing judged in context; strategy was reasonable and not objectively unreasonable |
| 4) Counsel improperly conceded guilt of armed robbery (and implicitly felony murder) without Anthony’s consent | Concession was equivalent to pleading guilty without client consent and caused prejudice | Counsel may adopt overarching trial strategy without explicit client consent; concession aimed to avoid conviction on more serious charge; Anthony did not object intransigently | Denied — concession was strategic (Strickland review); not a structural error and no prejudice presumed; felony-murder contention moot as no felony-murder convictions were entered |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard: deficiency and prejudice)
- Florida v. Nixon, 543 U.S. 175 (counsel may concede guilt as part of strategy; consultation required for overarching decisions but not every strategic choice)
- McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (counsel may not concede guilt over a client’s express, intransigent objection — structural error)
- Romer v. State, 293 Ga. 339 (discusses objective-reasonableness inquiry for counsel performance)
- Favors v. State, 296 Ga. 842 (conceding lesser offense to avoid more serious conviction can be reasonable strategy)
- Brooks v. State, 305 Ga. 600 (counsel’s advice about testifying and court’s crediting of counsel testimony)
- Blackwell v. State, 302 Ga. 820 (strategic choices to base defense on evidence and defendant’s account can be reasonable)
- Lynn v. State, 310 Ga. 608 (brief references or fleeting errors may not make counsel objectively unreasonable)
- Goff v. State, 308 Ga. 330 (contextual review of counsel’s references and decision not to move for mistrial)
- Muller v. State, 284 Ga. 70 (reasonable strategy to argue lack of malice when other defenses are weak)