BEASLEY v. THE STATE.
S18A1252
February 18, 2019
305 Ga. 231
BOGGS, Justice.
In 2011, Terrance Beasley was found guilty of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a crime in connection with the shooting death of Rodriquez Hamm. Beasley appeals from the denial of his amended motion for new trial, asserting three enumerations of error. First, Beasley argues that his trial counsel was ineffective for failing to object when the prosecutor allegedly violated Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991), by commenting on his silence. Second, he argues that the trial court erred when it instructed the jury on the defense of habitation or, alternatively, that his counsel was ineffective for failing to maintain his objection to the defense of habitation instruction after the charge was given. Third, he argues that his counsel was ineffective for failing to object to the trial court’s alleged closure of the courtroom, thus violating his
Viewed in the light most favorable to the verdicts, the trial evidence showed that Beasley attended a birthday party at the home of Hamm’s grandmother on the night of November 21, 1998, where he argued with Hamm’s sister and was told to leave. As he left with his girlfriend and two friends, he angrily stated that he would be back.
Beasley testified that as he and his then-girlfriend were standing by a truck
The party was almost over when Beasley returned to Hamm’s grandmother’s house. He went to the basement’s sliding-glass door with the shotgun and asked for his cousin to come out. He then went inside, stated that he was going to “kill every mother f----r in there,” stepped outside, shot once in the air, and reentered the home. Witnesses testified that they did not see Hamm with a gun, and did not see Beasley shoot Hamm, but they heard more gunshots
The State’s medical examiner testified that Hamm suffered two shotgun wounds: one to the back of his right leg and the other, which killed him, to the right side of his chest. No weapon was located on Hamm or in the basement of the home where Hamm was shot, but spent shotgun shell casings were recovered from the patio outside the sliding-glass door. A shotgun was never found.
1. Although Beasley does not challenge the sufficiency of the evidence on appeal, “it is our customary practice in murder cases nevertheless to review the record and determine whether the evidence was legally sufficient.” Edwards v. State, 301 Ga. 822, 824 (1) (804 SE2d 404) (2017). After review, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Beasley was guilty of the crimes of which he
2. In his first enumeration of error, Beasley asserts that his trial counsel was constitutionally ineffective for failing to object to the State’s mention of Beasley’s pre-arrest silence during its questioning of him on cross-examination and in the State’s closing argument. Specifically, he argues that the prosecutor violated Mallory when he asked Beasley why he did not call the police before returning to Hamm’s residence and then commented on that fact during his closing argument. Beasley also argues that the prosecutor improperly elicited testimony that, until Beasley’s first trial and after an opportunity to view the State’s discovery, he had never before claimed that the victim shot a gun at him.3
To succeed on a claim of ineffective assistance of counsel, Beasley must show both that his attorney’s performance was deficient and that he was prejudiced as a result of that deficient performance. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).
We have held that “in criminal cases, a comment upon a defendant’s silence or failure to come forward is far more prejudicial than probative” and that “such a comment will not be allowed even . . . where he takes the stand in his own defense.” Mallory, 261 Ga. at 630 (5).4
At a minimum, “Mallory focuses on commentary on a defendant’s conduct between the time of the crime
Even if Beasley could demonstrate that his counsel was deficient in failing to object to the prosecutor’s questions, Beasley has failed to show prejudice. In an attempt to show prejudice, Beasley argues that the State’s improper questioning harmed his credibility when he testified that he shot the victim in self-defense. But even if the implication that Beasley should have called the police if he had been assaulted or that he had the opportunity to tailor his self-defense testimony might have harmed his credibility, the State presented other significant evidence to refute Beasley’s claim of self-defense. Multiple witnesses testified that they did not see the victim with a gun, and the victim’s mother testified that he did not have a gun when she ran to him after he was shot. Nor did police officers locate any weapon on the victim or in the crime scene area or any evidence of the four shots Beasley claimed that the victim fired. Thus, given the collective weight of the evidence refuting Beasley’s self-defense claim, Beasley has not shown that there is a reasonable probability that, absent counsel’s failure to object to the State’s questioning, the outcome of his trial would have been more favorable to him. See Green, 302 Ga. at 817 (2); Hernandez v. State, 299 Ga. 796, 801 (4) (792 SE2d 373) (2016).
3. In his second enumeration of error, Beasley contends that the trial court erred in instructing the jury on the defense of habitation form of justification because the “habitation must be the defendant’s, not the victim’s.”5 He claims that he preserved this issue for appeal because his trial counsel asked for a “continuing objection” to the habitation instruction at the charge conference and objected after the charge was given.
At the charge conference, trial counsel objected that the “habitation” that
At the charge conference, the State requested that the trial court instruct the jury that a person is justified in using force against another person when and to the extent that the person reasonably believes that such force is necessary to prevent or terminate another’s unlawful entry into or attack upon a residence.
Beasley objected to the giving of such an instruction, and a lengthy discussion between Beasley and the trial court followed. Beasley contended that the charge was inappropriate because his defense was not that he used force against a person coming into his residence. The trial court then recited the evidence presented that supported the charge, namely that the victim had a gun and the home was being invaded by someone with a shotgun. Beasley responded that the State’s evidence did not support the charge and argued strenuously that the particular charge was “for the use of a defendant, not a victim.” The trial court asked why the charge could not apply to both the defendant and the victim, and Beasley elaborated on his position that the instruction was never intended to apply to a deceased victim, eventually stating that if “the court decide[d] to give it, [he’d] ask it be a continuing objection.”
The trial court, turning to the State for its position, said, “All right. What do you say?” The prosecutor responded that “there’s no such thing as a charge that’s only . . . able to be given by the defendant,” but stated that he would research the issue over a break. The trial court then talked about other jury instructions with Beasley and afterward took a recess. After the recess, the prosecutor informed the trial court that he had found a Court of Appeals case
Accordingly, the record does not show that the trial court specifically granted Beasley a continuing objection, or that the trial court on its own initiative clearly designated his objection as continuing. Therefore, the objection, which he asked to be continuing, did not preserve this issue for ordinary appellate review. See Larocque, 268 Ga. at 354. And because his request for a continuing objection was not granted, Beasley was required to object with specificity after the court charged the jury, pursuant to
Although Beasley failed to preserve this issue in the trial court, he has enumerated it as error on appeal, and we therefore review it for plain error. See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). To meet the plain error test, four prongs must be satisfied: (1) there was no affirmative waiver of the issue; (2) the error was obvious; (3) the instruction likely affected the outcome
It is also because of Robison that Beasley’s related claim — that his trial counsel was ineffective for failing to maintain his objection to the instruction — fails. In light of Robison, the trial court was permitted to instruct the jury on the defense of habitation. Therefore, any objection made by counsel would have been meritless, and the “[f]ailure to make a meritless objection cannot support a claim of ineffective assistance,” Watson v. State, 303 Ga. 758, 763 (3) (814 SE2d 396) (2018).
Beasley did not question trial counsel at the motion for new trial hearing regarding an alleged courtroom closure involving the questioning of jurors. “In the absence of testimony to the contrary, counsel’s actions are presumed strategic.” (Citation and punctuation omitted.) Holmes v. State, 273 Ga. 644, 648 (5) (c) (543 SE2d 688) (2001).
We cannot say that not objecting to the temporary closure was patently unreasonable trial strategy under the circumstances of this case. A competent attorney might reasonably decide that a temporary closure would benefit his client in this situation. For example, the attorney might think it beneficial to his client to be able to question jurors about their possible intimidation by his
Judgment affirmed. All the Justices concur.
Murder. Fulton Superior Court. Before Judge Newkirk.
Brian Steel, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine D. Emerson, Assistant Attorney General, for appellee.