2011, Terrance Beasley was found guilty of malice murder,
felony murder, aggravated assault, and possession of a
firearm during the commission of a crime in connection with
the shooting death of Rodriquez Hamm. Beasley appeals from
the denial of his amended motion for new trial, asserting
three enumerations of error. First, Beasley argues that his
trial counsel was ineffective for failing to object when the
prosecutor allegedly violated Mallory v. State, 261
Ga. 625, 629-630 (5) (409 S.E.2d 839) (1991), by commenting
on his silence. Second, he argues that the trial court erred
when it instructed the jury on the defense of habitation or,
alternatively, that his counsel was ineffective for failing
to maintain his objection to the defense of habitation
instruction after the charge was given. Third, he argues that
his counsel was ineffective for failing to object to the
trial court's alleged closure of the courtroom, thus
violating his constitutional right to a public trial. We
disagree and affirm.
in the light most favorable to the verdicts, the trial
evidence showed that Beasley attended a birthday party at the
home of Hamm's grandmother on the night of November 21,
1998, where he argued with Hamm's sister and was told to
leave. As he left with his girlfriend and two friends, he
angrily stated that he would be back.
testified that as he and his then-girlfriend were standing by
a truck to leave the party, Hamm and some other men with guns
approached, and one man put a gun to Beasley's head.
Beasley's then-girlfriend testified that she witnessed
the incident. She further testified that, as they were
driving away, Beasley told her that he wanted to return to
the party to retrieve his cousin because he feared that the
men who "threatened" him would harm his cousin. She
testified further that she tried to "cool off"
Beasley by talking to him but that his friend, Jamar
Hendricks, "hype[d]" Beasley and said that they
were "going to go back and do th[o]se fools."
Beasley then testified that, after dropping off their
friends, he and Hendricks picked up a shotgun from a friend
named "Tip." Beasley testified that he did not call
the police after the alleged assault because he did not
"want the problem," and he "just wanted to get
[his] cousin" from the party.
party was almost over when Beasley returned to Hamm's
grandmother's house. He went to the basement's
sliding-glass door with the shotgun and asked for his cousin
to come out. He then went inside, stated that he was going to
"kill every mother f----r in there," stepped
outside, shot once in the air, and reentered the home.
Witnesses testified that they did not see Hamm with a gun,
and did not see Beasley shoot Hamm, but they heard more
gunshots as they tried to run away or take cover. Hamm's
mother testified that, when she ran to Hamm after he was
shot, he did not have a gun.
State's medical examiner testified that Hamm suffered two
shotgun wounds: one to the back of his right leg and the
other, which killed him, to the right side of his chest. No
weapon was located on Hamm or in the basement of the home
where Hamm was shot, but spent shotgun shell casings were
recovered from the patio outside the sliding-glass door. A
shotgun was never found.
Although Beasley does not challenge the sufficiency of the
evidence on appeal, "it is our customary practice in
murder cases nevertheless to review the record and determine
whether the evidence was legally sufficient."
Edwards v. State, 301 Ga. 822, 824 (1) (804 S.E.2d
404) (2017). After review, we conclude that the evidence was
sufficient to authorize a rational trier of fact to find
beyond a reasonable doubt that Beasley was guilty of the
crimes of which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
his first enumeration of error, Beasley asserts that his
trial counsel was constitutionally ineffective for failing to
object to the State's mention of Beasley's pre-arrest
silence during its questioning of him on cross-examination
and in the State's closing argument. Specifically, he
argues that the prosecutor violated Mallory when he
asked Beasley why he did not call the police before returning
to Hamm's residence and then commented on that fact
during his closing argument. Beasley also argues that the
prosecutor improperly elicited testimony that, until
Beasley's first trial and after an opportunity to view
the State's discovery, he had never before claimed that
the victim shot a gun at him.
succeed on a claim of ineffective assistance of counsel,
Beasley must show both that his attorney's performance
was deficient and that he was prejudiced as a result of that
deficient performance. See Strickland v. Washington,
466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674)
(1984). Counsel's performance was deficient "only if
it was objectively unreasonable under the circumstances and
in light of prevailing professional norms." Green v.
State, 302 Ga. 816, 817 (2) (809 S.E.2d 738) (2018). And
"prejudice is demonstrated only where there is a
reasonable probability that, absent counsel's errors, the
result of the trial would have been different."
Id. "Failure to satisfy either prong of the
Strickland test is sufficient to defeat a claim of
ineffective assistance, and it is not incumbent upon this
Court to examine the other prong." (Citation and
punctuation omitted.) Id. at 818 (2).
held that "in criminal cases, a comment upon a
defendant's silence or failure to come forward is far
more prejudicial than probative" and that "such a
comment will not be allowed even . . . where he takes the
stand in his own defense." Mallory, supra, 261
Ga. at 630 (5). At a minimum, "Mallory
focuses on commentary on a defendant's conduct between
the time of the crime and prior to arrest." State v.
Sims, 296 Ga. 465, 469 (2) (a) (769 S.E.2d 62) (2015).
Beasley could demonstrate that his counsel was deficient in
failing to object to the prosecutor's questions, Beasley
has failed to show prejudice. In an attempt to show
prejudice, Beasley argues that the State's improper
questioning harmed his credibility when he testified that he
shot the victim in self-defense. But even if the implication
that Beasley should have called the police if he had been
assaulted or that he had the opportunity to tailor his
self-defense testimony might have harmed his credibility, the
State presented other significant evidence to refute
Beasley's claim of self-defense. Multiple witnesses
testified that they did not see the victim with a gun, and
the victim's mother testified that he did not have a gun
when she ran to him after he was shot. Nor did police
officers locate any weapon on the victim or in the crime
scene area or any evidence of the four shots Beasley claimed
that the victim fired. Thus, given the collective weight of
the evidence refuting Beasley's self-defense claim,
Beasley has not shown that there is a reasonable probability
that, absent counsel's failure to object to the
State's questioning, the outcome of his trial would have
been more favorable to him. See Green, supra, 302
Ga. At 817 (2); Hernandez v. State, 299 Ga. 796, 801
(4) (792 S.E.2d 373) (2016).
his second enumeration of error, Beasley contends that the
trial court erred in instructing the jury on the defense of
habitation form of justification because the "habitation
must be the defendant's, not the
victim's." He claims that he preserved this issue for
appeal because his trial counsel asked for a "continuing
objection" to the habitation instruction at the charge
conference and objected after the charge was given.
charge conference, trial counsel objected that the
"habitation" that will support this type of
justification must be the defendant's and not the
victim's - the same argument he now raises on appeal. But
that was not the basis for his objection after the trial
court charged the jury. Instead, he objected that the trial
court should have instructed the jury on the language of OCGA
§ 16-2-23 as it existed in 1998, when the crimes were
committed, rather than the language of that statute as it
existed in 2011, when the case was tried. But he does not
pursue that argument on appeal. Thus, whether Beasley is
entitled to ordinary appellate review of his claim that the
challenged instruction should not have been given at all
depends on whether the record shows that his request for a
"continuing objection" at the charge conference was
granted. An objection cannot be viewed as continuing unless
"the trial court specifically grants a continuing
objection, or when the trial court on its own initiative
clearly designates an objection as continuing."
State v. Larocque, 268 Ga. 352, 353 (489 S.E.2d 806)
(1997). The record does not show that either happened here.
charge conference, the State requested that the trial court
instruct the jury that a person is justified in using force
against another person when and to the extent that the person
reasonably believes that such force is necessary to prevent
or terminate another's unlawful entry into or attack upon
a residence. Beasley objected to the giving of such an
instruction, and a lengthy discussion between Beasley and the
trial court followed. Beasley contended that the charge was
inappropriate because his defense was not that he used force
against a person coming into his residence. The trial court
then recited the evidence presented that supported the
charge, namely that the victim had a gun and the home was
being invaded by someone with a shotgun. Beasley responded
that the State's evidence did not support the charge and
argued strenuously that the particular charge was "for
the use of a defendant, not a victim." The trial court
asked why the charge could not apply to both the ...