Swanson v. StateSwanson v. State
A jury found Sean Swanson guilty of felony murder, and of the predicate felony of sale of marijuana, in the shooting death of Noel Reed. On appeal, Swanson contends that his trial counsel was ineffective for failing to request a jury charge on use of force in defense of habitation and for withdrawing a request to charge the jury on voluntary manslaughter. Based on the facts and circumstances of this case, we conclude that Swanson‘s trial counsel rendered constitutionally ineffective assistance by failing to request a jury charge on use of force in defense of habitation and therefore reverse Swanson‘s felony murder conviction.1
1. Viewed in the light most favorable to the jury‘s verdicts,
Two residents of the apartment complex called 911 after they heard multiple gunshots and saw someone get out of a red car and take the bag that was lying next to Reed before driving away. Officers stopped Swanson‘s car soon afterward and arrested him. From Swanson‘s car, officers recovered a large bag of marijuana, a Sig Sauer 9-millimeter pistol, and a .460 Smith & Wesson Magnum revolver. From near Reed‘s body, officers recovered a TEC-9 pistol, a backpack, and two 9-millimeter shell casings that matched the bullets in the pistol found in Swanson‘s car.
At trial, Coleman testified for the State in exchange for testimonial immunity. She testified that when Reed arrived for the sale, Swanson got out of the car, the two men spoke briefly, and then Swanson got back in the driver‘s seat of the car. Reed was standing outside the car near the rear tire on the driver‘s side and began rummaging through a backpack that he was carrying. Coleman testified that she tried to warn Swanson and “screamed [Swanson‘s]
After the State finished presenting its case-in-chief, Swanson testified in his own defense. According to Swanson, he was sitting in his car with his door open and was using an application on his phone as Reed approached. Reed asked if Coleman was in the car and then walked toward the back, driver‘s-side tire while Swanson was still looking at his phone. Suddenly, one of Swanson‘s friends said “yo, watch out, he has a gun,” and when Swanson “look[ed] up,” Reed already had a gun pointing at Swanson‘s chest. Reed told Swanson to “run it, I need everything or I‘m going to shoot someone,” and then reached in and “snatched” the bag of marijuana while pointing the gun at Swanson. Swanson testified, “I was scared. I was terrified. I didn‘t want to die that day,” and also that he thought Reed may hurt the other vehicle occupants. Swanson testified that even after Reed took the marijuana, Reed did not leave and “still has the gun pointed at me wanting more stuff, and he — he — for a second, looked away toward the apartment area” as he took a step back, and that is when Swanson retrieved his own pistol from between the driver‘s seat and the console and fired three shots in “quick succession,” first a warning shot and then two shots that struck Reed, who was only a few feet away. With respect to timing, Swanson testified that Reed pointing a gun at Swanson, reaching into Swanson‘s car to grab the marijuana, and saying “run it[,] I want everything or I‘m shooting” happened “simultaneously,” and that the entire interaction — starting with Reed walking up to
2. Swanson contends that his trial counsel was ineffective for failing to request a jury charge on use of force in defense of habitation. For the reasons explained below, we agree.
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U. S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U. S. at 687-688. This requires a defendant to overcome the “strong presumption” that trial counsel‘s performance was adequate. Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation and punctuation omitted). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different. Strickland, 466 U. S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
To authorize a jury instruction, there need only be slight evidence at trial supporting the theory of the charge. State v. Newman, 305 Ga. __ (__ SE2d __) (2019). Under Georgia law, “[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such
(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.
At trial, Swanson‘s counsel did not request, and the trial court did not provide, a jury instruction on use of force in defense of habitation under
(a) Deficiency prong. Swanson contends that the evidence presented at trial included at least slight evidence that would have supported a jury instruction on defense of habitation. Indeed, the evidence was undisputed that Swanson was inside his car when he shot at Reed, who was pointing a gun at Swanson and (Swanson argues) was in the process of committing an armed robbery against Swanson and the passengers inside Swanson‘s car. To that end, Swanson testified that Reed — the aggressor — brandished a
We agree. The evidence presented at trial and described above constituted at least slight evidence that Swanson acted in defense of habitation. Important to this conclusion is Swanson‘s testimony that Reed had—while pointing a gun at Swanson—threatened, “I need everything or I‘m going to shoot someone” (emphasis supplied), and then reached into the car to “snatch” the bag of marijuana. Given Swanson‘s additional testimony that Reed continued to point a gun at a “terrified” Swanson and others in the car even after Reed took the marijuana, and that Reed “still ha[d] the gun pointed at me wanting more stuff,” Swanson reasonably could have believed that Reed would again attempt entry into Swanson‘s car to “assault[ ] or offer[ ] personal violence” to the occupants of the car, or that Reed would again attempt entry to “commit[ ] a felony.”
Moreover, given this record, a reasonable attorney would have pursued a justification defense on Swanson‘s behalf. And, indeed, Swanson‘s trial counsel did pursue such a defense. But the defense he elected to pursue — self-defense — was legally foreclosed, see
We can identify no reasonable basis for an attorney failing to request a jury instruction on defense of habitation under
This conclusion is consonant with relevant precedent. For example, in Coleman v. State, 286 Ga. 291 (687 SE2d 427) (2009), we concluded that one of the two co-defendants, Jackson, was entitled to a jury charge on defense of habitation and that his trial
Jackson‘s testimony that he remained in the vehicle and fired his weapon through the vehicle‘s open door or window at someone who had struck him while he was in the vehicle and who he believed was preparing to strike him again was the “slight evidence” necessary to authorize a jury charge on defense of habitation. Id. at 299.6
Similarly, in Benham v. State, 277 Ga. 516 (591 SE2d 824) (2004), we concluded that there was at least slight evidence supporting the theory of defense of habitation and that counsel‘s failure to request a jury instruction was constitutionally deficient. In that case, witness testimony corroborated Benham‘s testimony that she sat in her car with her eight-year-old son in the front passenger seat when someone approached the driver‘s side window and began arguing with her. When the person outside the car reached into the driver-side window and struck Benham, she grabbed a box cutter and repeatedly slashed the assailant. Counsel argued that Benham‘s actions were a justifiable use of force in defense of self or others, but did not request a jury instruction on defense of habitation, and the jury returned a verdict of guilty on aggravated assault. Id. at 516-517. At Benham‘s hearing on a motion for new trial, trial counsel testified that she had strategic reasons for choosing not to request a charge on defense of habitation, including that she “wanted the jury to believe Benham was in fear for her safety and the safety of her children, not that she was merely protecting her vehicle.” Id. at 517. On appeal, we concluded that Benham‘s trial counsel was deficient because it was “evident that
Here, as in Coleman, Swanson‘s “testimony that he remained in the vehicle and fired his weapon through the vehicle‘s open door or window at someone who had” pointed a gun at him “while he was in the vehicle and who he believed was preparing to” rob and injure him was the type of evidence necessary to authorize a jury charge on defense of habitation. Coleman, 286 Ga. at 299. And just as in Benham, it is “evident that defense counsel failed to appreciate that the defense of habitation may have justified the use of deadly force in this case.” 277 Ga. at 517.
The State, however, advances a different argument. Relying on Kendrick v. State, 287 Ga. 676 (699 SE2d 302) (2010), the State contends that it is critical to evaluate “‘the moment in time at which the defendant resorts to deadly force and the act being performed by the victim at that moment.‘” Id. at 679 (quoting Coleman, 286 Ga. at 298).7 According to the State, the evidence at Swanson‘s trial did not support the theory of defense of habitation because it showed that at the moment Swanson shot Reed, Reed had already reached into Swanson‘s car, taken the marijuana, and taken a “few steps away from” Swanson‘s car. Under this view, “‘there is no evidence that the victim was attempting to enter or attack the habitation at the time he was injured by the defendant,‘” and Swanson did “‘not
But the facts of Kendrick make that case inapposite. See Kendrick, 287 Ga. at 680 (“Under the facts of this case, there could be no reasonable belief that firing a pistol at the driver of another car while driving on the road was necessary to prevent or terminate the other‘s unlawful entry into or attack upon a motor vehicle.“) (punctuation omitted).8 Unlike in Kendrick, we cannot say that the record in this case does not support a “reasonable belief” that force was “necessary to prevent or terminate the other‘s unlawful entry into or attack upon a motor vehicle.” Id. at 680 (punctuation omitted). Because the failure to request a jury instruction on defense of habitation was “objectively unreasonable . . . in the light of prevailing professional norms,” Romer, 293 Ga. at 344, counsel was constitutionally deficient under the circumstances. See Coleman, 286 Ga. at 298-299; Benham, 277 Ga. at 517-518.
(b) Prejudice prong. Having determined that Swanson‘s counsel performed deficiently, we must turn to the second prong of the Strickland analysis. To support his claim of prejudice, Swanson asserts that “it is reasonably probable that [the jury] would have accepted the substantial evidence that Noel Reed made an entry or attempted entry” in the manner required by
We first look to the record evidence cutting against Swanson‘s prejudice arguments. The State contends that even if the jury had been charged on defense of habitation, it still would have returned a guilty verdict for felony murder. It reasons that the jury was charged on self-defense yet returned a guilty verdict, which shows that the jury already considered and rejected a similar (and even
We do not agree that these points are dispositive of the prejudice analysis here. To the contrary, the record shows that there is a “probability sufficient to undermine confidence in the outcome” of Swanson‘s trial. See Strickland, 466 U. S. at 694.
First, the State, in its closing argument, focused heavily on the inapplicability of a self-defense theory to the facts of Swanson‘s case. As just one example, the State argued in closing: “Let that sink in. Not justified in using force if that person is committing a felony.” Indeed, the State even conceded in closing that if Swanson had not been selling marijuana but had instead been “hanging out in the parking lot, Mr. Reed rolled up on them, put that gun to him and said run it, I‘m robbing you, Mr. Swanson would have had every right to defend himself with deadly force.” But, argued the State, because Swanson was selling marijuana when he shot Reed, “What you forfeit is your right to claim self-defense, to have a jury grant you justification.” These aspects of the State‘s closing argument are significant not only because they capitalize on trial counsel‘s deficiency, see Division 2 (a) above, but also because they effectively concede that if a justification defense that was not precluded by law were available, then Swanson would have had a strong defense at trial. This supports the notion that there is a reasonable probability the jury would have returned a different verdict had it been instructed on defense of habitation.
Second, the record shows that the jury was paying close attention to the defense on which it was instructed, and that it carefully considered whether it could apply that defense in Swanson‘s case. To that end, the trial court charged the jury on self-defense, including an instruction — consistent with Georgia law — that “a person is not justified in using force if that person is attempting to commit, is committing, or is fleeing after the commission or attempted commission of a felony.” During deliberations, the jury sent a note to the court asking: “GA law states
Our conclusion that Swanson has demonstrated prejudice is consistent with our precedent. In Benham, for example, we concluded that the defendant was prejudiced by her counsel‘s failure to request a jury charge on defense of habitation because it was reasonably probable that the jury would have accepted the substantial evidence, which included witness testimony, that the victim “unlawfully entered Benham‘s car in a violent and tumultuous manner for the purpose of offering personal violence to the occupants.” 277 Ga. at 517-518. And although our appellate courts have concluded in other cases that a defendant was not prejudiced by counsel‘s failure to request a jury charge on defense of habitation, those cases are generally distinguishable because, for example, the record showed the defendant used force against a victim who was no longer attempting to enter a habitation, see
Here, by contrast, given the record evidence recounted above, the jury — having been instructed on defense of habitation, and after weighing the evidence and credibility of the witnesses — could have reasonably concluded that Swanson justifiably used deadly force in defense of habitation. See Debelbot v. State, 305 Ga. 534, 541-542 (826 SE2d 129) (2019) (“[I]n examining whether a defendant has shown Strickland prejudice, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done.” (citing Woodard v. State, 296 Ga. 803, 810 n.5 (771 SE2d 362) (2015)). To be sure, there are some differences between Coleman‘s testimony and Swanson‘s, including about which passenger told Swanson to turn around because Reed was pointing a gun at him, and how exactly Reed obtained the bag of marijuana from Swanson‘s car. And Coleman‘s credibility must be viewed in light of the testimonial immunity the State offered her. Even so, Coleman‘s and Swanson‘s testimony aligned with respect to the core evidence presented at trial establishing that Reed pulled a TEC-9 handgun on Swanson and aimed it at Swanson (who was sitting with others in his car) before Swanson shot Reed. Moreover, Coleman‘s testimony that Reed “possibly” reached into the car to take the bag of marijuana, and her lack of certainty on that point, did not contradict Swanson‘s testimony that Reed in fact did so. We thus conclude that, even weighing the divergence in testimony and
In sum, when viewed as a whole, the record here shows that there is a reasonable probability that, but for counsel‘s deficient performance, the outcome of Swanson‘s trial would have been different. In other words, Swanson has established a “probability sufficient to undermine confidence in the outcome” in Swanson‘s trial. See Strickland, 466 U. S. at 694. Because we hold that counsel rendered constitutionally ineffective assistance in failing to seek a jury instruction on defense of habitation, Swanson‘s conviction for felony murder is reversed. Consequently, Swanson is entitled to a new trial.9
3. Swanson contends that his trial counsel was ineffective for withdrawing a request to charge the jury on voluntary manslaughter. Given that we have already reversed Swanson‘s conviction for felony murder, however, we need not reach this enumeration of error. See, e.g., Taylor v. State, 297 Ga. 132, 136 (772 SE2d 630) (2015).
Judgment reversed. All the Justices concur.