Priester v. StatePriester v. State
In March 2020, Darnell Priester was convicted of malice murder, aggravated battery, and other crimes in connection with the shooting death of Thomas Robinson and the non-fatal shooting of Timothy Nelson. He appeals those convictions, arguing that the evidence presented at trial was not sufficient to support them, the trial court erred by denying him a new trial on the general grounds, and the trial court committed plain error by not giving jury instructions related to justification and perjury. Priester also argues that his trial counsel provided ineffective assistance by failing to object to the lack of jury instructions related to justification and perjury; failing to object to testimony that implicated Priester‘s right to remain silent; failing to cross-examine Shane Godsey;
As explained below, we conclude that the evidence was sufficient to support Priester‘s convictions; his thirteenth juror claim presents nothing further for this Court to review; Priester has not shown plain error related to the jury instructions; and Priester has failed to prove that counsel‘s assistance was ineffective in any of the ways alleged. Thus, we affirm Priester‘s convictions.1
Lewis and the rest of Robinson‘s group then decided to drive to Godsey‘s house in Starks‘s car. At some point, either before they began driving or on the drive there, Bedford told the group that the Priester brothers owed her $20, and she said, “I want his head.” Bedford testified that the group was not “attempting to go get the $20, but their intentions were to fight,” and Nelson told a police officer after the shooting that the group went to fight the Priester brothers. At trial, however, Nelson testified that they were going to the house “to retrieve [Bedford]‘s money,” and Lewis testified that
The group arrived at Godsey‘s house around 11:30 p.m., and Bedford yelled at people inside the house about her $20. Robinson, Nelson, and Lewis got out of the car.5 Lewis walked around the house, and Nelson went to the front door. Nelson testified that he “calmly” “knocked on the door three times” using a “normal knock,” and Lewis testified that Nelson used a “simple knock” and was “very calm.” Sullivan, on the other hand, testified that when the group arrived, “they got out the car and started beating on the door, like bring your b**ch a** outside,” and they continued to “beat on the door” for five to ten minutes. Godsey similarly testified that Nelson knocked “very loudly” on the door, was “in a bit of a rage” and “very hostile,” and told the Priester brothers to “get the ‘F’ out here now.”
Godsey testified that he answered the door and told Nelson to
Nelson testified that when the shooter in the window was illuminated by the flash of the gun, he “saw a white shirt.” Lewis
Six days after the shooting, Sullivan wrote in a statement to police that after Robinson and Nelson “tried to lure” the Priester brothers outside Godsey‘s house, Priester “opened a window and shot at the crowd.”9 Godsey testified that after the shots were fired,
On the night of the shooting, Priester was interviewed by Chief Bill Gorman, the lead detective on the case, and another officer from the Dallas Police Department. A video recording of the interview was played for the jury. Priester, who was wearing a white shirt, admitted that he was at Godsey‘s house at the time of the shooting, but said that he “wasn‘t in the room when it was happening,” that he ducked down when the shots were fired, and that “Brandon Glenn,” who was wearing a red shirt, was the shooter. Priester said that he did not know Glenn, but Glenn had approached his group at the football game and gone back to Godsey‘s house with them. Priester “d[id]n‘t know” why Glenn shot at Robinson‘s group. Priester said that Glenn was 17 years old and attended Hiram High
Priester did not testify at trial. His defense was that he was not the shooter and he did not identify the real shooter because he was protecting that person. Priester also emphasized in closing argument the ongoing dispute between the two groups and the evidence showing that Robinson‘s group came to Godsey‘s house to fight. Priester was convicted of malice murder, aggravated battery, three counts of aggravated assault, and possession of a firearm during the commission of a felony.
2. Priester challenges the sufficiency of the evidence supporting his convictions in several ways.
(a) He argues that the evidence presented at trial was not sufficient to support his convictions as a matter of constitutional due process. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). “In evaluating the sufficiency of the evidence as a matter of constitutional due process, we view all of the evidence
As discussed above, the evidence presented at trial included undisputed evidence that Priester was at Godsey‘s house. Sullivan told police that he saw Priester open the window and shoot into the crowd. Two other witnesses testified that the person in the window from where the shots came was wearing a white shirt, and video from the football game and testimony showed that Priester was wearing a white shirt that night. People from Robinson‘s group testified that they were outside walking away from the house when shots were fired, and there was no evidence that any of them had a weapon. Thus, the evidence presented at trial, when viewed in the light most favorable to the convictions, was sufficient to support Priester‘s convictions. See Bullard v. State, 307 Ga. 482, 483 (837 SE2d 348) (2019) (holding that the evidence was sufficient to
(b) Priester further argues that the trial court erred by denying his motion for a directed verdict as to the charge of aggravated battery against Nelson. In considering this claim, we apply the same standard used to determine if the evidence is constitutionally sufficient. See Lumpkin v. State, 310 Ga. 139, 144 n.4 (849 SE2d 175) (2020). “A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.”
Priester argues that the evidence supporting the aggravated
(c) Priester contends that the evidence did not support his convictions under
Here, the State did not rely solely on circumstantial evidence. The State presented direct evidence of Priester‘s guilt in the form of Sullivan‘s written statement that Priester “shot at the crowd.” See Willis v. State, 315 Ga. 19, 24 (880 SE2d 158) (2022) (explaining that eyewitness testimony identifying the shooter is direct evidence of guilt). This is true even though Sullivan recanted his statement at trial. See Jackson, 310 Ga. at 228 (“[D]irect evidence is not converted into circumstantial evidence by a witness’ lack of
3. Priester next argues that the trial court should have granted him a new trial because the verdicts were “contrary to the law and evidence” and “to the principles of justice, fairness, and equity.” This argument implicates the “general grounds” for obtaining a new trial under
When these so-called “general grounds” are properly raised in a timely motion for new trial, the trial judge must exercise a broad discretion to sit as a ‘thirteenth juror. . . . [T]he merits of the trial court‘s decision on the general grounds are not subject to our review, and the decision to grant a new trial on the general grounds is vested solely in the trial court.
King v. State, 316 Ga. 611, 616 (889 SE2d 851) (2023) (citations and punctuation omitted).
To the extent Priester argues the trial court failed to exercise
To the extent this claim can be construed as a challenge to the sufficiency of the evidence supporting Priester‘s convictions, this claim fails for the reasons discussed in Division 2 above.13
4. Priester complains that the trial court did not give the jury instructions he requested related to justification and perjury.
To succeed on his claims, Priester must prove that all four prongs of the plain error test are met.
First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.
Id. (citations and punctuation omitted). “To authorize a requested jury instruction, there need only be slight evidence to support the theory of the charge.” Collins v. State, 308 Ga. 515, 519 (842 SE2d 275) (2020) (citation and punctuation omitted).
(b) Priester also argues that the trial court erred when it declined to instruct the jury on perjury, because Nelson, Starks, Sullivan, Bedford, and Lewis provided certain testimony at trial that was inconsistent with statements those witnesses gave to law enforcement before trial. Notably, however, Priester does not specify which of the statements—the unsworn ones the witnesses named above gave to law enforcement before trial or the testimony offered at trial under oath—he believes were false.
(i) At trial, Priester requested that the court instruct the jury:
[Y]ou can not base a conviction upon perjured testimony. A witness gives perjured testimony when his or her testimony at trial materially contradicts the statement
Priester has failed to show that the trial court committed a clear or obvious error by declining to give the requested instruction.
“A requested ‘jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law.‘” Tepanca v. State, 297 Ga. 47, 49 (771 SE2d 879) (2015) (citation omitted). At the time of Priester‘s trial,
(ii) To the extent Priester is now arguing that the trial court committed plain error by failing to give the pattern jury instruction on perjury, which he cites in his brief, he has again failed to show error, let alone clear or obvious error. Priester argues that a charge on perjury was warranted to address the discrepancies between trial testimony and statements given to law enforcement by Nelson, Starks, Sullivan, Bedford, and Lewis. However, as noted above, Priester does not specify whether his contention is that the unsworn statements to police were false or that the sworn trial testimony was false. And he has pointed to no cases, nor have we found any, holding that a perjury instruction should be given under these circumstances. Moreover, the trial court instructed the jurors that it was their duty to “determine the credibility of the witnesses,” and explained:
Your assessment of a trial witness‘s credibility may be
affected by comparing or contrasting that testimony to statements or testimony of that same witness before the trial started. It is for you to decide whether there is a reasonable explanation for any inconsistency in a witness‘s pretrial statements and testimony when compared to the same witness‘s trial testimony. As with all issues of witness credibility, you the jury must apply your common sense and reason to decide what testimony you believe or do not believe.
Thus, to the extent that Priester is arguing that an instruction on perjury is required to highlight inconsistencies between the pre-trial statements and trial testimony, the instructions as given covered that concept. See Wilson v. State, 315 Ga. 728, 737 (883 SE2d 802) (2023) (“We see no error [in the court‘s failure to give the requested instruction] because the points of law in Wilson‘s requested instruction were covered in the court‘s other instructions.“).
5. Priester argues that his trial counsel provided ineffective assistance in multiple ways. To prevail on these claims, Priester must show that his lawyer‘s performance was constitutionally deficient and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). See also Clark v. State, 315 Ga. 423, 442 (883 SE2d 317) (2023). To prove deficient performance, Priester must demonstrate that his counsel “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Clark, 315 Ga. at 442 (citation and punctuation omitted). To establish prejudice, Priester must show a reasonable probability that, “but for counsel‘s deficient performance, the result of the trial would have been different.” Id. We need not address both components of this test if Priester makes an insufficient showing on one. See id. See also Strickland, 466 U.S. at 697.
(a) Priester argues that his trial counsel provided ineffective assistance by failing to object after the trial court refused to give the justification-related instructions discussed in Division 4 (a) above. Even assuming that counsel was deficient in this respect, for the reasons discussed in Division 4 (a), Priester has failed to show that there is a reasonable probability he would have achieved a different result at trial if counsel had objected. See Clark, 315 Ga. at 442 (“[T]he test for prejudice in the ineffective assistance analysis is
Priester also argues that counsel provided ineffective assistance by failing to object to the court‘s failure to instruct the jury on perjury. This claim fails for the reasons discussed in Division 4 (b). Because the trial court did not err by declining to give the requested instruction, counsel was not deficient in failing to object to the lack of that instruction. See King, 316 Ga. at 625 (“[F]ailing to make a meritless objection is not constitutionally deficient.“).
(b) Priester argues that counsel provided ineffective assistance by failing to object to Chief Gorman‘s testimony that—according to
PROSECUTOR: Did the Defendant ever refuse to answer any further questions throughout the course of the interview?
GORMAN: No. He was very cooperative.
PROSECUTOR: Is the time that you are referring to the only time the Defendant was interviewed by you or in your presence?
GORMAN: Yes. After the interview I never spoke to him again.
At the motion-for-new-trial hearing, trial counsel explained that he did not object to this testimony because counsel did not see this statement as implicating Priester‘s right to remain silent, although he noted, “[i]n hindsight, I can see the implication.”
(c) Priester argues that his counsel provided ineffective assistance by failing to cross-examine Godsey and not asking Godsey if it was possible that the members of the group outside the house were going back to their car for guns. At trial, counsel did not ask Godsey any questions on cross-examination, and at the motion-for-new-trial hearing, counsel testified that he did not cross-examine Godsey because the defense team had spoken with Godsey before
“The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” Bonner v. State, 314 Ga. 472, 476 (877 SE2d 588) (2022) (citation and punctuation omitted). Priester has not shown that his counsel‘s decision—based on counsel‘s conversation with Godsey and Godsey‘s testimony—was deficient, particularly in light of Priester‘s failure to demonstrate that Godsey would have given a response helpful to Priester if he had been asked if it was possible that Robinson‘s group was going to retrieve guns from the car. See Bonner, 314 Ga. at 476 (holding that Bonner failed to show that counsel‘s performance was deficient in failing to cross-examine several witnesses, where counsel explained at the motion-for-new-trial hearing that he would usually cross-examine witnesses if he “ha[d] something to cross[-]examine” them about and Bonner did not “demonstrate how cross-
(d) Priester argues that counsel provided ineffective assistance by requesting an instruction on accomplice corroboration. At trial, Priester‘s counsel requested an accomplice corroboration instruction, arguing that Sullivan, who was in the house with Priester, “c[ould] be an accomplice, because he could be the shooter.” The trial court agreed to give the requested instruction. In closing argument, trial counsel reminded the jury that the State gave Sullivan, whom counsel described as “the only eyewitness,” use immunity for his testimony. Counsel argued: “one of the other things that the Judge is going to tell you about Mr. Sullivan is about an accomplice” and explained that an accomplice‘s testimony “must be supported by . . . some other evidence.” Later in his argument, counsel said, “Remember Makaylen Sullivan is an accomplice and you can‘t take the word of an accomplice on its own without some other supporting evidence.”
“Decisions on requests to charge involve trial tactics to which we must afford substantial latitude, and they provide no grounds for
(e) Priester argues that counsel provided ineffective assistance by failing to file a motion for immunity from prosecution under
(f) Finally, Priester argues that trial counsel provided ineffective assistance by failing to object to narrative testimony, to “asked and answered” testimony, and to the prosecutor “testifying” by repeating testimony given by a witness or asking leading questions. At the motion-for-new-trial hearing, trial counsel testified that deciding whether to raise these kinds of objections was
In raising this claim, Priester does not specifically discuss any of the allegedly improper questions or answers. Instead, he has included a string cite of transcript pages and argues generally that every instance of narrative testimony, “asked and answered” testimony, and the prosecutor “testifying” was prejudicial to him. These string cites—which fail to highlight any question or answer that was particularly prejudicial to Priester—do not suffice to show that counsel made a patently unreasonable decision by choosing not to object to each instance of allegedly objectionable questions or answers and choosing instead to consider factors such as the potential prejudice from the testimony or potential disruption from the objection. Thus, Priester has failed to demonstrate that counsel‘s performance was deficient. See Moulder, S23A0508, 2023 WL 5338774, at *6 (“[R]easonable decisions as to whether to raise a specific objection are ordinarily matters of trial strategy and provide
Judgment affirmed. All the Justices concur.
Notes
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other‘s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.
A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force.
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other‘s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) 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.