Following 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. 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 Pathak 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 revolver 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.
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 trier of fact to find Turner guilty of all of the crimes of which he was convicted beyond a reasonable doubt. Jackson v. Virginia,
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 merit to these contentions.
In order to succeed on his claim of ineffective assistance, [Turner] must prove both that his trial counsel’s performance was 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,
Wright v. State,
(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 and 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) Turner consistently denied shooting Pathak, (2) there was no evidence that Pathak had a weapon of any kind, and (3) much of the video surveillance evidence showed the struggle between Turner and Pathak without making clear how, exactly, the fatal shot was fired, trial counsel believed that the best trial strategy would be to challenge the eyewitness testimony in an effort to show that the State could not prove that Turner was Pathak’s shooter beyond a reasonable doubt. In light of the evidence presented, we find this strategy to be reasonable. See McLean v. State,
(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 decision to make regarding whether or not he would testify Trial counsel also advised Turner that his statement to police in which he stated that he did not remember what happened on the night of the shooting, and Turner’s prior criminal history as a convicted felon, could be used against Turner if he decided to testify at trial. Moreover, the record belies Turner’s
Judgment affirmed.
Notes
On April 12, 2012, Turner was indicted for malice murder, two counts of felony murder (predicated on aggravated assault and possession of a firearm by a convicted felon), aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. Following a November 18-20, 2013 jury trial, Turner was found guilty on all counts. On November 20, 2013, the trial court sentenced Turner to life imprisonment without the possibility of parole for malice murder and consecutive sentences of five years for each of the possession of a firearm counts. The felony murder counts were vacated by operation of law (Malcolm v. State,
There is no sound on the surveillance videos to indicate shots being fired.