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Beasley v. State

Supreme Court of Georgia

February 18, 2019


          BOGGS, JUSTICE.

         In 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.[1]

         Viewed 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.

         Beasley 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.

         The 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.[2]

         The 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.

         1. 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).

         2. In 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.[3]

         To 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).

         We have 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).[4] 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).

         Even if 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).

         3. In 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."[5] 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.

         At the 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.

         At the 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 ...

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