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Parker v. State

Supreme Court of Georgia

January 22, 2019

PARKER
v.
THE STATE.

          Blackwell, Justice.

         James Don Parker was tried by a Jones County jury and convicted of the murder of Alan Helmuth. Parker appeals, claiming that the trial court erred when it charged the jury and that he was denied the effective assistance of counsel. We see no reversible error and affirm.[1]

         1. Viewed in the light most favorable to the verdict, the evidence shows that Parker and Helmuth were best friends and neighbors in rural Jones County, near Haddock. At the time of his death, Helmuth was 61 years of age, and he suffered from a variety of medical conditions, including gout, diabetes, and a lung disease that often left him short-winded and dizzy. Parker, who described himself as "a lot healthier and a lot younger" than Helmuth, [2] was about eight inches shorter than his friend, but the men weighed about the same.

         On the evening of February 10, 2014, Parker invited Helmuth to drink moonshine at Parker's house. Helmuth told his wife that he would not be gone for long, but he never returned. Around seven o'clock on the morning of February 11, Parker appeared at the home of another neighbor and asked that neighbor to "call the law." When police officers responded to Parker's home, they found Helmuth's body. He had been shot once in the forehead and once in the side of his face.[3] The shot to the forehead left a bullet lodged in his brain, and the shot to the side of his face travelled through his neck and left a bullet lodged in his left lung.[4] Parker was arrested, and as he was booked at the jail, he spontaneously said, "That's what moonshine [will] do to you."

         At his trial, Parker testified that he killed Helmuth in self-defense. By Parker's account, Helmuth was in good spirits when he came over, and he did not appear to be angry when Parker told him that he was not as tough as he used to be. As the men continued drinking, however, Helmuth's mood changed. According to Parker, Helmuth spoke of his need to demonstrate that he "really [was] a badass," and he then hit Parker in the face. Helmuth continued to hit Parker and eventually knocked him out. Up to that point, Parker said, he never hit back. When Parker came to, Helmuth was slapping him in the face and telling him to get up. When Parker did not respond, Helmuth kicked him and announced that the beating would continue until Parker stood. At that point, Parker stood, and Helmuth continued to beat him with his fists. Parker testified that he repeatedly tried to escape, but Helmuth blocked him each time. Finally, Parker said, Helmuth knocked him into his bedroom, where Parker was able to retrieve his Marlin .22-caliber lever-action rifle. (On cross-examination, Parker acknowledged that-at the time that he was in his bedroom getting the gun-Helmuth was approximately 15 feet away in the living room, and Parker testified that he "didn't think to" close or lock the door to his bedroom.)[5] Parker claimed that he told Helmuth to leave his house, and Helmuth refused, saying "You'll have to kill me because I'm fixing to keep on whipping your ass." Parker said that Helmuth then lunged at him, and he shot at Helmuth. When Helmuth came at Parker a second time, he shot Helmuth again. Parker acknowledged that he then "collapsed onto [his] bed," and he fell asleep without checking on his friend or attempting to seek help for him.

         Much of the physical and medical evidence is inconsistent with Parker's account. For example, photographs and testimony admitted at trial show that, when Parker was arrested and booked on the morning of February 11, he had only minor bruising and a few superficial cuts on his face (none of which required medical treatment other than cleaning). And he had no significant bruising or defensive injuries on his torso or arms consistent with being kicked or punched in the way he described.

         Parker does not dispute that the evidence is sufficient to sustain his conviction. But consistent with our usual practice in murder cases, we independently have reviewed the record to assess the legal sufficiency of the evidence. We conclude that the evidence presented at trial, when viewed in the light most favorable to the verdict, was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Parker was guilty of murder. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Parker claims that the trial court erred when it charged the jury about how it should consider evidence of his good character. The trial court gave the pattern jury instruction on good character evidence, charging the jury as follows:

You have heard evidence of the character of the defendant in an effort to show that the defendant likely acted in keeping with such character or trait at pertinent times, or with reference to the issues of this case. This evidence has been offered in the form of opinion of other witnesses, reputation, and specific incidences of conduct of the defendant showing such trait. You should consider any such evidence along with all the other evidence in deciding whether or not you have a reasonable doubt about the guilt of the defendant.

See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed. 2007, updated Aug. 2018) § 1.37.10 (same). Parker argues that the pattern charge is inadequate because it does not include language that is required, he says, by State v. Hobbs, 288 Ga. 551 (705 S.E.2d 147) (2010). But "[n]othing in Hobbs suggests that it is error to give the current version of the pattern jury charge on good character." Williams v. State, Ga. (3) (818 S.E.2d 653) (2018). Despite Parker's claim to the contrary, the pattern charge adequately communicated to the jury that evidence of his good character could generate a reasonable doubt to acquit, and it "properly explained how character evidence ought to be considered by the jury." Id.

         3. Parker also challenges a charge in which the jury was instructed that "[a] person who fatally wounds another, even in self-defense, is not entitled to hasten the victim's death by continuing to pump bullets into the victim's body."[6] This charge was provided twice to the jury (first as a part of the initial charge and again in a recharge after the jury requested definitions of numerous terms). But Parker did not object to the charge on either occasion, so we review this claim only for plain error. See OCGA § 17-8-58 (b).[7]

         To show plain error, Parker "must establish not only that the jury instruction was erroneous, but also that it was obviously so and that it likely affected the outcome of the proceedings." DuBose v. State, 299 Ga. 652, 654 (4) (791 S.E.2d 9) (2016) (citation and punctuation omitted). He has failed to make the necessary showing of harm. First, it is true that the bullet-pumping charge was not well tailored to the evidence because it was undisputed that only two shots were fired at Helmuth and that Parker did not "pump [multiple] bullets" into Helmuth's body. But the State did not suggest otherwise, and Parker was able to argue to the jury in his closing that the bullet-pumping charge "doesn't apply here at all" because there were only "two bullets shot." Second, the bullet-pumping charge on its own did not properly inform the jury that a defendant who is justified in using deadly force is entitled to continue to use deadly force until the reasonably perceived threat of unlawful force is eliminated, and standing alone, that charge is arguably inconsistent with the usual rule of self-defense. But the jury was separately charged that "[j]ustification cannot be based on a deadly assault which has been completely ended, unless the assailant has some further apparent ability to continue it" and that "the doctrine of reasonable fear does not apply . . . where . . . the danger apprehended is not urgent and pressing or apparent at the time of the killing," and these instructions adequately conveyed the idea that justification to use force in defense of self continues for so long as the reasonable perception of the threat persists. Considering the jury charges as a whole, Parker has not shown any likelihood that the jury believed a defendant could be convicted of murder if the fatal shot was fired while he continued to reasonably believe that the force he employed was necessary to defend himself. See Gadson v. State, 303 Ga. 871, 875 (2) (815 S.E.2d 828) (2018) ("In evaluating claims of instructional error, we examine the jury charge as a whole." (citation and punctuation omitted)).

         Parker also argues that the jury charge on hastening a death violated OCGA § 17-8-57 because it intimated that the trial judge believed that Parker had no reason to fire the second shot at Helmuth. But the trial court informed the jury that "[w]hat the facts are in this case is a matter solely for you, the jury, to determine," that "[a] person is justified in . . . using force against another person when and to the extent he reasonably believes that such . . . force is necessary to defend himself," and that "[t]he State has the burden of proving beyond a reasonable doubt that the defendant was not justified." There is no likelihood that the jury considered the charge on hastening a death as an indication that the trial court believed the State's theory that Parker was not in fear for his safety when he fired the second shot. See Scudder v. State, 298 Ga. 438, 441 (4) (782 S.E.2d 638) (2016). See also Dubose v. State, 294 Ga. 579, 586 (5) (755 S.E.2d 174) (2014) (the "court's determination regarding what jury instructions were authorized by the evidence" did not violate OCGA § 17-8-57).

         4. Parker claims that he was denied the effective assistance of counsel when his lawyer failed to call an expert witness, strike a juror based upon his relationship with the Jones County Sheriff's Department, and sufficiently investigate the case. To prevail on a claim of ineffective assistance, Parker must prove both that his lawyer's performance was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To prove that the performance of his lawyer was deficient, Parker must show that the lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U.S. 365, 381 (II) (C) (106 S.Ct. 2574, 91 L.Ed.2d 305) (1986). And to prove that he was prejudiced by the performance of his lawyer, Parker must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would ...


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