Cato v. State
304 Ga. 496
Ga.2018Background
- T'Shanerka Smith was shot and killed after a dispute between her brother (Eddie Edwards) and a group that included Darron Cato; eyewitness testimony identified Cato as one of the shooters.
- Cato was indicted with co-defendants for malice murder, felony murder (predicated on aggravated assault by shooting), aggravated assault with a deadly weapon, and possession of a firearm during a felony.
- At trial Cato was acquitted of malice murder but convicted of felony murder, aggravated assault (merged into felony murder), and a firearm offense; he received life for felony murder plus a consecutive five-year firearm sentence.
- Cato did not object at trial to a jury instruction that defined aggravated assault to include placing a victim in reasonable fear of immediate injury (an act such as pointing a gun), even though the indictment alleged aggravated assault by shooting.
- Cato also argues ineffective assistance because trial counsel did not call his father as an alibi witness; mother and cousin testified to an alibi but cellphone evidence and trial counsel’s credibility concerns undermined their testimony.
- The trial court denied a new-trial motion; on appeal the Georgia Supreme Court reviewed (1) whether the unobjected-to jury instruction was plain error and (2) whether counsel’s decision not to call the father was constitutionally deficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the aggravated-assault instruction (allowing reasonable apprehension as a means) was plain error because it permitted a theory not charged (pointing vs. shooting) | Cato: Instruction allowed conviction on unindicted theory (mere apprehension/pointing) and thus was error | State: Other instructions, the indictment given to jury, the nature of charges, and evidence (victim was shot) removed any likelihood of confusion; any error was harmless | No reversible plain error; any instructional defect was cured and unlikely affected outcome |
| Whether counsel’s failure to call Cato Sr. as an alibi witness was ineffective assistance | Cato: Father would have corroborated mother’s alibi testimony and cellphone explanations; his absence prejudiced defense | State: Counsel investigated, questioned father’s and mother’s credibility, named father as available witness but reasonably decided not to call him as trial strategy | No ineffective assistance; decision was reasonable tactical choice and not deficient |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (legal sufficiency standard) (1979) (evidentiary sufficiency reviewed under rational-trier-of-fact standard)
- Chapman v. State, 273 Ga. 865 (indictment and permitted theories error) (2001) (cannot convict on a method not alleged in indictment)
- Saffold v. State, 298 Ga. 643 (plain error standard for unpreserved jury-charge claims) (2016) (elements required to reverse for plain error)
- Simpson v. State, 302 Ga. 875 (jury instructions curing defects) (2017) (other instructions can cure charging defects)
- Herrington v. State, 300 Ga. 149 (instructional error harmlessness) (2016) (context can negate likelihood of jury confusion)
- Johnson v. State, 295 Ga. 615 (felony-murder predicate instruction) (2014) (no reversal where victim’s death from shooting made alternative theory unlikely)
- Patel v. State, 278 Ga. 403 (indictment-specific theory vs. jury instruction) (2004) (rejecting argument that jury could rely on mere apprehension where murder conviction required shooting)
- Scott v. State, 290 Ga. 883 (ineffective-assistance standard) (2012) (Strickland framework application)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance test) (1984) (performance and prejudice prongs)
- Muckle v. State, 302 Ga. 675 (trial strategy re: witnesses) (2017) (failure to call witness is tactical and not per se deficient)
- Robinson v. State, 277 Ga. 75 (appellate review of trial-court factual findings) (2003) (appellate court accepts trial-court credibility findings unless clearly erroneous)
- Lawrence v. State, 286 Ga. 533 (Strickland prong analysis) (2010) (failure to prove either Strickland prong is fatal to claim)