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Horton v. State

Court of Appeals of Georgia, First Division

May 9, 2019

HORTON
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Brown, Judge.

         Darius Horton appeals from his convictions of aggravated assault on a police officer and five counts of obstruction of an officer. In his sole enumeration of error on appeal, he contends that plain error resulted from the trial court's failure to charge the jury, sua sponte, on his right to resist an unlawful arrest or excessive force. For the reasons explained below, we disagree and affirm.

         The record shows that the incident leading to Horton's arrest began when Deputy Morris, a uniformed officer, received a dispatch around 6:15 p.m. to a specific address for a "physical domestic" in which "the suspect had a chain that he was using." He testified that

[a]s I was walking up to the residence, just like we do on every domestic, we take it slow and try listen for fighting, because I didn't know if the suspect and the victim was still in the residence, or if they were separated. So as I'm walking up to the door, I'm not hearing no arguing coming from the trailer, no sign of a domestic going on at that time. So I knocked on the front door, Mr. Horton come to the door with a chain around his neck, and as he come to the door the screen door was still closed, and I asked him to step out and talk to me for a minute.[1] And he stepped outside, I asked him several times just to lay the chain down on the ground, or on the porch, that way nothing would escalate from there with that. He refused to lay the chain d[o]wn.

         Horton, who "was already agitated for some reason," ignored the officer's command and held the chain while telling the officer "there is no reason for [him] to be there and . . . his wife needed to come, get her a** back in the house because she had food burning on the stove." The officer asked him more than five times to put the chain down, and Horton refused, all the while yelling for his wife to come back in the house in a "loud and boisterous" manner. Horton also "attempted to go back in the residence several times, and every time that [Deputy Morris told] him not to, he would stop for a second and then he would try again." At this point in time, two other officers arrived, Sergeant Philpott and Corporal Franklin.

As these officers stepped onto the porch, Horton
attempted to go back and he actually grabbed the door to go back in the residence. At that time [Deputy Morris] stepped over and put [his] hands and foot in front of the door so (sic) couldn't open it. And when [Horton] done that is when [Sergeant] Philpott asked [Horton] to move over to the other side of the porch. [Horton] yanked away from Sergeant Philpott and jumped across the porch and took an aggressive stance and pulled the chain from his shoulders and as he was pulling the chain, [Deputy Morris] deployed [his] taser [because he was afraid Horton was going to hit him with his chain].

         When one of the taser probes failed to hit Horton, he stepped back, ripped the connected probe out, and then swung the chain at Deputy Morris. The chain wrapped around Deputy Morris' forearm and Horton "yanked it away." Corporal Franklin "tased" Horton again, Horton immediately ripped the cords out, and it took the three officers about five minutes to physically subdue and handcuff Horton. Deputy Morris had an imprint from the chain on his arm for about four weeks before it started to fade.

         Corporal Franklin testified that it is routine practice in domestic calls to "isolate them in one area" because "we don't know what or who is in the house . . . we don't know if there's guns, knives, whatever in the house, so we like to keep them isolated if we can until we find out what's going on." Deputy Morris testified that he did not speak to Horton's wife, who had fled to a neighbor's home, until after Horton had been arrested and placed in a patrol car. Horton did not testify at trial.

         On appeal, Horton asserts that the trial court committed plain error by failing to charge the jury that he had the right to resist an unlawful arrest, as well as a right to resist excessive force in a lawful arrest. He characterizes the omitted charges as ones involving his sole defense of justification.

An appellate court may reverse a trial court for plain error if the instructional error was not affirmatively waived by the defendant, was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.

(Citations and punctuation omitted.) Woodard v. State, 296 Ga. 803, 806 (2) (771 S.E.2d 362) (2015). In considering such a claim, "we examine the jury charge as a whole. [Cit.]" Id. Horton bears the burden of establishing plain error, and "as our Supreme Court has emphasized, satisfying the plain-error standard is difficult, as it should be." State v. Crist, 341 Ga.App. 411, 415 (801 S.E.2d 545) (2017).

         1.With regard to the obstruction charges, Horton cannot establish error, much less plain error, as the trial court instructed the jury that the State must prove beyond a reasonable doubt that the officers were "in the lawful discharge of official duties" at the time of Horton's obstruction. As the lawful discharge of an officer's duties was an essential element of the crime, rather than an affirmative defense, the charge as a whole adequately covered the principle. See Curtis v. State, 285 Ga.App. 298, 300-301 (1) (a) (645 S.E.2d 705) (2007); Lo ...


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