BROOKS v. THE STATE
S20A0895
Supreme Court of Georgia
August 24, 2020
309 Ga. 630
BOGGS, Justice.
FINAL COPY
Dеontae Tremayne Brooks was convicted of malice murder, aggravated assault, and possession of a firearm by a convicted felon under
1. Construed in the light most favorable to the jury‘s verdicts, the evidence presented at Brooks’ trial showed that on July 22, 2015, Tinch, who was a drug dealer, lived with his father and stepmother in a subdivision in College Park. Tinch and his friend Gay were riding around the area in Tinch‘s car, a Toyota Camry, with Gay driving. Tinch received several calls from someone known as “Black Boy,” who said he wаs looking for a ride to cash a check and gave Tinch the address of a nearby house.2 Gay did not really know
The medical examiner testified that Tinch was shot twice from behind, in the head and in the lower body, and that the cause of death was a gunshot wound to the head. Gay identified Brooks from a photo lineup, and Brooks was arrested in Ohio approximately one month later.
(a) Brooks argues that the evidence was insufficient to support his conviction on Count 9, possession of a firearm by a convicted felon during the commission of another felony enumerated under
As part of the proof of a violation of
indictment charged Brooks with possessing a handgun during the commission of a felony аgainst the person of another, see
At Brooks’ trial, the State tendered an exhibit consisting of the
previously entered a guilty plea to the offense of murder, murder in the second degree, armed robbery, home invasion in any degree, kidnapping, rape, aggravated child molestation, aggravated sodomy, aggravated sexual battery, or any felony involving the use or possession of a firearm and who shall have on or within arm‘s reach of his or her person a firearm during the commission of, or the attempt to commit:
(1) Any crime against or involving the person of another;
(2) The unlawful entry into a building or vehicle;
(3) A theft from a building or theft of a vehicle;
(4) Any crime involving the possession, manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any controlled substance as provided in Code Section 16-13-30; or
(5) Any crime involving the trafficking of cocaine, marijuana, or illegal drugs as provided in Code Section 16-13-31,
and which crime is a felony, commits a felony and, upon conviction thereof, shall be punished by confinement for a period of 15 years, such sentence to run consecutively to any other sentence which the person has received.
indictment, plea, charge disposition report, and judgment of conviction and sentence in Brooks’ 2007 conviction, showing that while Brooks was originally charged with armed robbery, hijacking a motor vehicle, aggravated assault with intent to rob, and possession of a firearm during the commission of a felony, he entered a guilty plea and was sentenced only for the lesser included offense of theft by taking, aggravated assault with intent to rob, and possession of a firearm in the commission of a felony; the charge of hijacking a motor vehicle was dead-docketed. The triаl court excluded the exhibit as unduly prejudicial.4 Instead, a stipulation was read to the jury as part of the trial court‘s charge:
The parties have entered into a stipulation that has been approved by the court about the following facts: this defendant was convicted
. . . of aggravated assault with intent to rob on October 1, 2007.
The stipulation does not state that the aggravated assault involved
the use of a firearm, and the title of the crime — aggravated assault with intent to rob — does not suggest the use of a firearm. See
no witnesses from the 2007 case. The evidence presented at trial therefore was insufficient to authorize the jury to convict Brooks under
Accordingly, we reverse the conviction on Count 9 and remand to the trial court to enter convictions and sentences on the two firearm possession counts that were merged with Count 9 for sentencing. See Blackmon v. State, 300 Ga. 35, 36-37 (2) (793 SE2d 69) (2016); Chester v. State, 284 Ga. 162, 162 (1) (664 SE2d 220) (2008).
(b) Brooks has not challenged the sufficiency of the evidence to support his remaining convictions. However, as is this Court‘s practice in murder cases, we have reviewed the record to determine the legal sufficiency of the evidence supporting his convictions for malice murder and aggravated assault.6 And, in light of the remand, we also have reviewed the record to determine the sufficiency of the evidence supporting the charges of possession of a firearm by a convicted felon and possession of a firearm during the commission of a felony. We conclude that the evidence presented at trial and summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Brooks was guilty of these other crimes. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Brooks contends that his trial counsel was constitutionally ineffective in his choice of a thеory of defense. Relying on Swanson v. State, 306 Ga. 153, 156 (2) (829 SE2d 312) (2019), Brooks asserts that his trial counsel was ineffective in pursuing a defense of justification by self-defense,7 contending it was a legally
unsupportable theory, and that trial counsel instead should have asserted the “viable” defense of justification by defense of habitation.8 We conclude that Brooks has failed to show ineffective assistance.
wide range of reasonable professional conduct.” (Citation and punctuation omitted.) Marshall v. State, 297 Ga. 445, 448 (2) (774 SE2d 675) (2015). And to prove prejudice, Brooks “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B). If there is no showing of deficient performance, we nеed not address the prejudice prong. See Romer, 293 Ga. at 344 (3) (citing Strickland, 466 U. S. at 697 (IV)).
Brooks contends that trial counsel was constitutionally deficient in choosing to assert justification by self-defense instead of by defense of habitation. He contends that self-defense was foreclosed because, Brooks asserts for the first time on appeal, he was engaged in a felony, criminal attempt to purchase marijuana, at the time of the fatal shooting. See
in which appellant‘s trial counsel asserted self-defense but not defense of habitation. There, Swanson testified at trial that he shot the victim in self-defense, but also admitted that he was engaged in the sale of marijuana, a felony, when the victim attempted to rob him and the passengers in his car. This Court held that, because self-defense was foreсlosed by
But the circumstances here are quite different from those in Swanson. Unlike Swanson, Brooks did not testify and did not admit that he was committing a felony at the time of the incident. During closing argument, Brooks’ trial counsel argued that the State had fаiled to prove the circumstances of the shooting and had failed to exclude the possibility that Brooks acted in self-defense. Trial counsel suggested multiple theories of how the incident occurred, including a possible “drug deal gone wrong,” the presence of a fourth man who shot at the victims,9 or an attempted robbery by Tinch and Gay.
Brooks contends that trial counsel‘s speculation in closing argument amounted to an admission that Brooks was guilty of a felony — criminal attempt to purchase marijuana — and that trial counsel therefore could not successfully assert a defense of justification by self-defense. However, as trial counsel observed at the hearing on Brooks’ motion for new trial, no evidence showed that a drug deal was in progress when the shooting occurred. While Gay readily acknowledged that Tinch was a drug dealer, on cross-examination Gay denied that a drug deal was taking place at thе time of the shooting or that
were found in the car.10
Moreover, “counsel‘s statements in closing argument were not evidence, as Georgia law has long held. Indeed, the trial court so instructed the jury.” (Citation omitted.) McKie, 306 Ga. at 112, 114 (declining to treat as admission counsel‘s statement in closing argument, “Yes, he‘s a convicted felon, we admit that all day. It‘s true.“) (punctuation omitted). Here, the trial court likewise instructed the jury that “[e]vidence does not include . . . opening or closing remarks of the аttorneys, or questions asked by the attorneys,” and the jury instructions did not include the language of
instructions the jury received, there was nothing from which the jury could conclude that Brooks was barred from asserting a claim of justification by self-defense based upon his cоunsel‘s speculation in closing argument that he may have been attempting to purchase marijuana.
Brooks’ claim that trial counsel was ineffective in failing to assert a defense of justification by defense of habitation is also without merit. Again citing Swanson, 306 Ga. at 156 (2), Brooks contends that his trial counsel was deficient in failing to assert this defense because slight evidence supported the theory that Tinch and Gay committed an “unlawful . . . attack upon a habitatiоn,” i.e., their own vehicle, to commit two felonies: an armed robbery and aggravated assault upon Brooks. See
entry is made or attempted.
During the incident in question, neither Tinch nor Gay “entered” the vehicle, as they were already inside at the time Brooks entered it. Cf. Kendrick v. State, 287 Ga. 676, 679-680 (3) (699 SE2d 302) (2010) (trial court did not err in denying requеst to charge on defense of habitation when appellant chased down his stolen car and shot driver; use of deadly force after theft complete not “necessary to prevent or terminate the other‘s unlawful entry into or attack upon a motor vehicle“) (punctuation omitted). And it is doubtful in any event whether Brooks could claim the victims’ vehicle as his “habitation” as opposed to the “habitation” of the victims, the driver and owner. See Hammock v. State, 277 Ga. 612, 616 (3) (592 SE2d 415) (2004) (holding that, “for purposes of
protect the habitation of another.” Williams v. State, 304 Ga. 455, 457 (2) (818 SE2d 653) (2018) (no deficient performance for failing to request charge on defense of habitation when appellant, member of nightclub performer‘s entourage, claimed that victim and his brothers attacked performer‘s car, while appellant was in another vehicle).
Brooks claims that “there is no Georgia precedent holding that the defense of habitation may only be claimed by the owner or possessor of the habitation.”11 But
to present is a question of trial strategy, and trial strategy, if reasonable, does not constitute ineffective assistance of counsel.” (Citation and punctuation omitted.) Mann v. State, 307 Ga. 696, 705 (3) (a) (838 SE2d 305) (2020). The record shows that trial counsel‘s defense of justification by self-defense was based upon the evidence and an established legal theory and constituted a reasonable trial strategy. Failing to interpose a novel defense of doubtful application to these facts did not constitute deficiency. “[Brooks‘] trial lawyer did not perform deficiently when he failed to pursue a jury charge that would have required an extension of existing precedents and the adoption оf an unproven theory of law.” Williams, 304 Ga. at 458 (2).
3. Finally, Brooks asserts as error the trial court‘s denial of his motion for a mistrial based on a witness’ testimony. During the direct examination of Gay, the prosecutor asked if Gay knew the individual identified as “Black Boy.” The following exchange occurred:
GAY: I seen him — I ain‘t never really know him like that. All I heard he was, like, in jail for a long time, or something like that.
DEFENSE COUNSEL: Objection. Move to strike.
COURT: I sustain the objection. And I‘m informing the jury that that is not part of the evidence, that was improper.
Brooks immediately moved for a mistrial. The trial court reserved ruling on the motion, remarking that “I may well grant it at some point.” The prosecutor inquired whether a curative instruction might be of some benefit, and the trial court responded that it had already instructed the jury that the statement was improper and not part of the evidence. As Brooks acknowledges, however, the trial court never ruled on his motion for mistrial, and even though the trial court noted at a later time that it had not ruled on the motion, Brooks never sought or received a ruling. “It is the duty of counsel to obtain a ruling on his motions or objections,” and failure to do so will result in waiver for purposes of appeal. (Citation and punctuation omitted.) Smith v. Stacey, 281 Ga. 601, 602 (1) (642 SE2d 28) (2007). See also Carman v. State, 304 Ga. 21, 34 (3) (815 SE2d 860) (2018).
Brooks contends that his enumeration of error nevertheless should be reviewed for “plain error” under State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). But in Georgia, plain error review is limited to
the sentencing phase of a trial resulting in the death penalty, a trial judgе‘s expression of opinion in violation of
OCGA § 17-8-57 , and a jury charge affecting substantial rights of the parties as provided underOCGA § 17-8-58 (b) , [and, f]or cases tried after January 1, 2013, with regard to rulings on evidence, a court is allowed to consider plain errors affecting substantial rights although such errors were not brought to the attention of the court.OCGA § 24-1-103 (d) .
(Citation and punctuation omitted.) Ross v. State, 296 Ga. 636, 639 (2) n.6 (769 SE2d 43) (2015). This Court has declined to extend plain error analysis to other claims of error in the absence of a specific provision by the General Assembly. See id.; Gates v. State, 298 Ga. 324, 328-329 (4) (781 SE2d 772) (2016).
Judgment affirmed in part and reversed in part, and case remanded with direction. All the Justices concur.
DECIDED AUGUST 24, 2020.
Murder. Fulton Superior Court. Before Judge Downs.
Matthew K. Winchester, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Juliana Sleeper, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant Attorney General, for appellee.
Notes
Any person who has previously been convicted of or who has
(a) A person commits the offense of simple assault when he or she eithеr:
(1) Attempts to commit a violent injury to the person of another; or
(2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.
The aggravated assault statute,
(a) A person commits the offense of aggravated assault when he or she assaults:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;
(3) With any object, deviсe, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or
(4) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.