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Swanson v. State

Supreme Court of Georgia

June 10, 2019

SWANSON
v.
THE STATE.

          WARREN, JUSTICE.

         A jury found Sean Swanson guilty of felony murder, and of the predicate felony of sale of marijuana, in the shooting death of Noel Reed. On appeal, Swanson contends that his trial counsel was ineffective for failing to request a jury charge on use of force in defense of habitation and for withdrawing a request to charge the jury on voluntary manslaughter. Based on the facts and circumstances of this case, we conclude that Swanson's trial counsel rendered constitutionally ineffective assistance by failing to request a jury charge on use of force in defense of habitation and therefore reverse Swanson's felony murder conviction.[1]

          1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial showed the following. On August 19, 2016, Swanson's close friend, Tia Coleman, received a call from an acquaintance asking if Coleman would sell marijuana to Noel Reed. Swanson and Coleman arranged a meeting to sell a half-pound of marijuana, plus an ounce, to Reed at an apartment complex in Gwinnett County. Swanson drove his red car to the apartment complex; Coleman and three other friends were in the vehicle with him. Swanson parked his car to wait on Reed, who arrived shortly thereafter and approached Swanson's car on foot. At some point during the encounter, Reed pulled out an Intratec 9-millimeter handgun (more commonly known as a TEC-9); Swanson then pulled out his own Sig Sauer 9-millimeter pistol and, from the driver's seat, shot Reed twice, killing him. Before driving out of the apartment complex, Swanson got out of his car and took back the bag of marijuana (which was laying on the ground) from near Reed's body.

         Two residents of the apartment complex called 911 after they heard multiple gunshots and saw someone get out of a red car and take the bag that was lying next to Reed before driving away. Officers stopped Swanson's car soon afterward and arrested him. From Swanson's car, officers recovered a large bag of marijuana, a Sig-Sauer 9-millimeter pistol, and a .460 Smith & Wesson Magnum revolver. From near Reed's body, officers recovered a TEC-9 pistol, a backpack, and two 9-millimeter shell casings that matched the bullets in the pistol found in Swanson's car.

         At trial, Coleman testified for the State in exchange for testimonial immunity. She testified that when Reed arrived for the sale, Swanson got out of the car, the two men spoke briefly, and then Swanson got back in the driver's seat of the car. Reed was standing outside the car near the rear tire on the driver's side and began rummaging through a backpack that he was carrying. Coleman testified that she tried to warn Swanson and "screamed [Swanson's] name" when she saw Reed holding a gun; Reed possibly "snatched" the bag of marijuana at that time, though Coleman was not sure of this detail; and Swanson "shook violently before he turned around, he saw the gun and out of instinct, he pulled out his gun and shot [Reed] twice." Coleman also testified that she thought Reed "took a few steps back" before Swanson shot him, and that she feared that Reed would shoot Swanson and the other vehicle occupants. Coleman further testified that after they drove away, Swanson told her to tell the police that Coleman was selling the marijuana to Reed, that Reed tried to rob her, and that Swanson shot Reed to defend Coleman; Swanson also relayed this story when police interviewed him on the night of Reed's killing.

         After the State finished presenting its case-in-chief, Swanson testified in his own defense. According to Swanson, he was sitting in his car with his door open and was using an application on his phone as Reed approached. Reed asked if Coleman was in the car and then walked toward the back, driver's-side tire while Swanson was still looking at his phone. Suddenly, one of Swanson's friends said "yo, watch out, he has a gun," and when Swanson "look[ed] up," Reed already had a gun pointing at Swanson's chest. Reed told Swanson to "run it, I need everything or I'm going to shoot someone," and then reached in and "snatched" the bag of marijuana while pointing the gun at Swanson. Swanson testified, "I was scared. I was terrified. I didn't want to die that day," and also that he thought Reed may hurt the other vehicle occupants. Swanson testified that even after Reed took the marijuana, Reed did not leave and "still has the gun pointed at me wanting more stuff, and he - he - for a second, looked away toward the apartment area" as he took a step back, and that is when Swanson retrieved his own pistol from between the driver's seat and the console and fired three shots in "quick succession," first a warning shot and then two shots that struck Reed, who was only a few feet away. With respect to timing, Swanson testified that Reed pointing a gun at Swanson, reaching into Swanson's car to grab the marijuana, and saying "run it[, ] I want everything or I'm shooting" happened "simultaneously," and that the entire interaction-starting with Reed walking up to Swanson's car-"happened fast, real fast." Swanson does not contest the legal sufficiency of the evidence supporting his conviction. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Swanson guilty beyond a reasonable doubt of the crimes for which the jury found him guilty. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Swanson contends that his trial counsel was ineffective for failing to request a jury charge on use of force in defense of habitation. For the reasons explained below, we agree.

         To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel's performance was deficient and that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-695 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 S.E.2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney "performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." Romer v. State, 293 Ga. 339, 344 (745 S.E.2d 637) (2013); see also Strickland, 466 U.S. at 687-688. This requires a defendant to overcome the "strong presumption" that trial counsel's performance was adequate. Marshall v. State, 297 Ga. 445, 448 (774 S.E.2d 675) (2015) (citation and punctuation omitted). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel's deficient performance, the result of the trial would have been different. Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

         To authorize a jury instruction, there need only be slight evidence at trial supporting the theory of the charge. State v. Newman, Case No. S19A0374, 2019 WL 1890204, at *4 (Apr. 29, 2019). Under Georgia law, "a person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation." OCGA § 16-3-23. However, "in the use of force which is intended or likely to cause death or great bodily harm" a person is justified "only if:"

(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.

Id. "Habitation," as used in OCGA § 16-3-23, includes "any dwelling, motor vehicle, or place of business." See OCGA § 16-3-24.1.

         At trial, Swanson's counsel did not request, and the trial court did not provide, a jury instruction on use of force in defense of habitation under OCGA § 16-3-23. Counsel did request, and the trial court did provide, a jury instruction on use of force in defense of self or others under OCGA § 16-3-21. However, the statute pertaining to the justification of use of force in defense of self or others expressly provides, and the jury was accordingly charged, that "[a] person is not justified in using [such] force . . . if he . . . [i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony," OCGA § 16-3-21 (b), and Swanson ...


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