S16A1583. TURNER v. THE STATE.
Supreme Court of Georgia
February 6, 2017
300 Ga. 513
MELTON, Presiding Justice.
FINAL COPY
Fоllowing a jury trial, Earlin Turner was found guilty of malice murder, felony murder, aggravated assault, and various other offenses in connection with the shooting death of Damodar Pathak.1 On appeal, Turner contends only that his trial counsel was ineffective for failing to pursue a particular defense theory and for failing to prоperly advise Turner about his right to testify at trial. We
affirm.
1.
Viewed in the light most favorable to the jury’s verdict, the evidence reveals that, on the night of January 9, 2012, Turner, a convicted felon, walked into a BP gas station convenience store in Conley, Georgia, with an acquaintance, Cuevin Stringer. Pathak, a cashier at the store, and Joseph Pryor, another employee, were the only ones working at the BP store that night, and there were no other customers in the store at that time. Pathak was not carrying a gun. While Stringer was at the cash register with Pathak, Turner went to the gaming room near the back of the store. However, because the store was about to close, Pathak went to the gaming room in an effort to prevent Turner from staying in the gaming room. While there were surveillance cameras in the convenience store, there were no cameras in the gaming room to record Pathak’s initial interaction with Turner there. However, Stringer overheard Pаthak asking Turner, without raising his voice, to leave the gaming room, but Turner refused. This led to a scuffle between Pathak and Turner, during which, Stringer saw Turner pull out a chrome revоlver from his right waistband and point it at Pathak. Stringer then ran from the store, and he heard a gunshot coming from inside the store while he was outside.
Pryor, Pathak’s co-worker who was stocking drinks at the time that the altercation began, also heard the gunshot. Pryor then saw Pathak and Turner continue to struggle, as Pathak attempted to take Turner’s gun away from him. Turner got Pathak on the ground inside the store and shot him again, and much of this struggle was captured on surveillance cameras in the store.2 Turner ran оut of the store after pointing the gun at Pryor. Pathak then followed Turner out of the store, where their fight continued in the parking lot. A security camera outside the stоre recorded much of the continued struggle between Pathak and Turner. Turner was able to get Pathak on the ground outside the store, and, while the video surveillance does not definitively show Turner shooting Pathak, Pryor saw Turner shoot Pathak in the torso while Turner had control of the gun.
During the struggles with Turner, Pathak had been shot three times, twice in the left hand and once in the chest. The gunshot to Pathak’s chest caused perforations of his lung, killing him.
This evidence was sufficient to enable a rational triеr of fact to find Turner guilty of all of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2.
Turner contends that his trial counsel was ineffective for (a) failing to assert the affirmative defense of self-defense at trial, and (b) failing to adequately advise Turner about his right to testify or refuse to testify at trial. We find no mеrit to these contentions.
In order to succeed on his claim of ineffective assistance, [Turner] must prove both that his trial counsel‘s performance wаs deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an apрellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004). In reviewing the trial court‘s decision, “‘[w]e accept the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).
Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).
(a) Trial counsel testified at the motion-for-new-trial hearing that he discussed the facts of the case and the trial strategy with Turner аnd reviewed the convenience store video footage with Turner, and that Turner consistently insisted that he did not shoot Pathak. In fact, Turner claimed that Stringer, who exited the convenience store after the confrontation between Turner and Pathak began inside the store, was the one who shot Pathak outside the store. Turner also never indicated to his trial counsel that Pathak had a weapon. Because (1)
(b) Contrary to Turner’s contentions, Turner’s trial counsel testified at the motion-for-new-trial hearing that he discussed with Turner his right to testify and advised Turner that it was Turner’s dеcision to make regarding whether or
Judgment affirmed. All the Justices concur.
Decided February 6, 2017.
Murder. DeKalb Superior Court. Before Judge Barrie.
Leah Davis Madden, for appellant.
Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Helen Virginia Peters, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Dеputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew M. Youn, Assistant Attorney General, for appellee.