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Prothro v. State

Supreme Court of Georgia

January 29, 2018


          GRANT, JUSTICE.

         After a bench trial, Appellant Anthony Prothro was found guilty of malice murder and other crimes associated with the violent death of his grandfather, Alvin Driver.[1] On direct appeal, Prothro claims that he received ineffective assistance of trial counsel. We disagree and affirm.


         Viewed in the light most favorable to the verdict, the evidence admitted at trial showed the following. On January 16, 2013, Anthony Prothro climbed into his grandfather's house through the window of what used to be Prothro's bedroom.[2] Knowing his grandfather's usual schedule, Prothro expected him to be in the shower and planned to steal money from his wallet to buy drugs. When he found that his grandfather was not in the shower, Prothro waited for a time and then climbed back out of the window and entered the house through the front door. He made up a story about needing to see a doctor and asked his grandfather for money. The two argued. Prothro went back to his old bedroom and returned to the living room with a 30-pound dumbbell that he used to strike his grandfather several times on the head. After bludgeoning his grandfather with the dumbbell, Prothro went outside and vomited into the bushes. He sat on the back porch for a while and smoked a cigarette, and then went back into the house where his grandfather lay on the living room floor to take the wallet out of his injured grandfather's pocket. He also took his grandfather's keys and left in his truck. When Prothro departed, his grandfather was bleeding from the head and "snoring." Prothro later used his grandfather's debit card to rent movies.

         A few days later, Prothro returned to the house late at night, poured gas around the house and on his grandfather's body, and set the house on fire. A neighbor saw the flames and called 911. After firefighters responded and eventually extinguished the fire, they found the grandfather's body inside on the living room floor. Samples taken from the house and from the grandfather's clothes tested positive for gasoline; an arson investigation determined that the fire had been intentionally started in Prothro's bedroom.

         A deputy medical examiner performed an autopsy and concluded that Prothro's grandfather had died of blunt force trauma to the head involving multiple skull fractures, as well as bruising and bleeding of the brain. The medical examiner identified at least eight forceful impacts to the top, back, and right side of the victim's head, though she conceded that it was possible that each blow with a dumbbell could cause more than one impact. The medical examiner also observed fractured bone and cartilage in the victim's neck, consistent with direct compression or "squeezing" of the neck. A forensic pathologist found no soot in the victim's airway and no carbon monoxide in the victim's lungs, indicating that he was dead before the fire started.

         Police canvassed the grandfather's neighborhood and interviewed a neighbor who reported seeing Prothro climb through his grandfather's window a few days before the fire. After obtaining a search warrant, investigators searched the apartment where Prothro and his mother lived and found the movies that had been rented with the victim's debit card.

         The lead police investigator interviewed Prothro at the Carrollton Police Department on three occasions. Each time, Prothro went voluntarily to the police station with his mother; he was not under arrest. During the third interview, Prothro admitted that he had gotten into a fight with his grandfather the week before, after his grandfather refused to give him money. Prothro confessed that he hit him with a dumbbell three or four times on the head, took his money and debit card, and left him to die. He also confessed that he returned three days later to set fire to the house. Although Prothro has not challenged the sufficiency of the evidence supporting his convictions, we have independently examined the record according to our usual practice and conclude that the evidence admitted at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Prothro was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 318-319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).


         Prothro claims that his trial counsel provided constitutionally ineffective assistance by waiting until the eve of trial to file a motion for the assistance of a forensic psychologist at trial. He argues that the trial court would have granted the motion if it had been filed earlier, in compliance with the Uniform Superior Court Rules. According to Prothro, the trial testimony of a forensic psychologist would have persuaded the trier of fact to find him guilty of the lesser offense of voluntary manslaughter, rather than malice murder. We are unconvinced.

         In order to prevail on his claim of ineffective assistance of counsel, Prothro must show both that his attorney's performance was deficient and that he was prejudiced by counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-696 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To demonstrate prejudice, Prothro "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." Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to a claim for ineffective assistance of counsel. See Speziali v. State, 301 Ga. 290, 293 (800 S.E.2d 525) (2017) (citing Strickland, 466 U.S. at 697); see also Schmidt v. State, 297 Ga. 692, 697 (778 S.E.2d 152) (2015).

         While Prothro's trial counsel admitted at the motion for new trial hearing that his motion for expert assistance was untimely, there is no evidence that the outcome of the trial would have been different if the motion had been filed earlier. To begin, the trial court evidently considered the motion on its merits, despite the late filing. The court even held a hearing on the motion, where Prothro's mother, one of Prothro's friends, and forensic psychologist Dr. Lauren Reba-Harrelson testified. Dr. Harrelson had evaluated Prothro before trial and determined that he was competent to stand trial, that he could tell the difference between right and wrong at the time of the alleged offense, and that he did not experience a delusional compulsion that overmastered his will to resist committing the act. In denying Prothro's request for the assistance of a forensic psychologist at trial, the court ruled that Prothro had not met his burden of showing that his sanity at the time of the offense would be a significant factor at trial. See Ake v. Oklahoma, 470 U.S. 68, 83 (105 S.Ct. 1087, 84 L.Ed.2d 53) (1985). Although the court also noted in its order that the motion had been filed late, Prothro has presented no evidence that the trial court would have ruled differently if the motion had been filed earlier.

         Nor has Prothro shown that the requested expert assistance would have changed the outcome at trial, even if the motion had been granted. At the hearing on Prothro's motion for new trial, Prothro proffered the testimony of psychologist James Stark, Ph.D. Dr. Stark evaluated Prothro after trial in order to determine his current mental state and make "educated guesses" as to what his mental state was at the time of the crimes. Dr. Stark made no determination regarding Prothro's legal sanity at the time of the offenses or his competence to stand trial. Based on his evaluation, Dr. Stark testified that several factors, including Prothro's alcohol and drug use and suicidal depression, led to Prothro being "very upset" generally in the time period leading up to his grandfather's killing. He also testified that Prothro said he was "out of [his] mind" on drugs on the day of the killing, and that Prothro argued with his grandfather when he refused to give Prothro money to buy more drugs.

         Contrary to Prothro's assertions, we cannot agree that there is a reasonable probability that the proffered testimony would have led the trier of fact to find Prothro guilty of voluntary manslaughter rather than murder. The offense of voluntary manslaughter is committed when the accused kills "solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." OCGA § 16-5-2. "[T]he provocation required to mitigate malice is that which would arouse a heat of passion in a reasonable person"; whether the provocation was sufficient to provoke deadly passion in the particular defendant is irrelevant. Johnson v. State, 297 Ga. 839, 842 (778 S.E.2d 769) (2015) (emphasis in original); see Lewandowski v. State, 267 Ga. 831, 832 (483 S.E.2d 582) (1997) (psychologist's expert testimony regarding the defendant's mental state properly excluded as irrelevant to claim of voluntary manslaughter). In finding Prothro guilty of malice murder rather than voluntary manslaughter, the trial court ...

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