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Bannister v. State

Supreme Court of Georgia

June 24, 2019

BANNISTER
v.
THE STATE.

          Nahmias, Presiding Justice.

         Appellant Donald Bannister was convicted of felony murder and a firearm offense in connection with the shooting death of Anthony Johnson, Jr. On appeal, he argues that the weight of the evidence presented at his trial was strongly against the verdicts; that his trial counsel was ineffective in withdrawing a request for jury instructions on voluntary manslaughter and mutual combat; and that the trial court erred by denying a mistrial and giving an improper Allen charge after the jury indicated that it was deadlocked, by holding that he had not made a prima facie showing supporting his Batson challenge, and by admitting two recordings of phone calls made from jail. We see no reversible error, so we affirm.[1]

         1. (a) Viewed in the light most favorable to the convictions, the evidence presented at Appellant's trial showed the following. On September 24, 2011, Tyrone Thomas drove Johnson and Terrance Denson to the townhouse where Ricardo Linton lived with his mother. Thomas testified that he could tell by "the way everything was going" and the phone calls that were coming in that Johnson and Denson were going to buy drugs. According to Linton, Johnson had contacted him through a third party to buy two pounds of marijuana for about $8, 600. Linton called Appellant to supply the marijuana for the deal, which Appellant brought to Linton's house that afternoon in a white Volvo. Linton said the buyers arrived in a green Cadillac.

         While Appellant and Linton waited for the buyers, Appellant cocked a handgun and hid it under a pillow in his lap. When Linton asked why he had a gun, Appellant said, "you never know when somebody will try to rob you." After Johnson and Denson arrived at the house, Linton led them in through the garage to his bedroom, which was on the lower level. Johnson pulled out some cash, which did not appear to be the full $8, 600; he would not let Linton count the money, and he asked to weigh the drugs. As Linton was leaving to get a scale, Denson pulled out a gun. Appellant lunged at him, and they struggled over the gun. Johnson, who was unarmed, pushed Linton to the floor, then went over to help Denson. Appellant kicked Denson off of him and fired two shots at Johnson, who was hit once in the shoulder and fell down. Appellant moved toward the bathroom while firing at Denson. Once Appellant made it to the bathroom, Denson fled the bedroom. [2]

         Linton's mother, who was on the floor above his bedroom, heard a loud boom; heard Linton say, "leave my mom alone, leave my mom alone"; and then saw a man running up the stairs from Linton's bedroom with a gun. She told him to leave the house. After the man ran outside, she looked out the window and saw a "big green car" she did not recognize parked nearby. She also saw the man who had just left the house still outside, so she hid behind a wall. When she looked out again, the man and the car were gone. Thomas, who had been waiting outside in the car, heard two or three gunshots and then saw Denson run out of the house with a gun. Denson got in the car and yelled at Thomas to drive away.

         Linton testified that after Denson left, Appellant, who had injured his finger in the struggle, was angry, saying, "I'm going to kill that motherf**ker." Appellant then gathered his belongings, including the marijuana. On his way out of the house, while still holding his gun, he looked at Linton in a threatening manner and told Linton to make the scene look like a burglary. After Appellant left, Linton called 911 and told the police that three men had tried to rob him and two of them fled after the other one was shot. This was also the story Linton first told to police officers when they arrived. Several hours later, he changed his story, admitting that Appellant had been there. He also admitted that he planned a "deal" with Johnson, but claimed that the deal was not supposed to take place at his house and that Johnson and Denson surprised him there to rob him. Linton was arrested, and several weeks later, he gave the police another statement, which was consistent with his testimony about the planned drug deal at his house. Once he admitted Appellant was present during the shooting, Linton was consistent in characterizing Appellant as a "hero" who saved him and his mother.

         Johnson died at Linton's house. He had been shot in the back left shoulder at close range, with the bullet traveling slightly downward from back to front, transecting his aorta. When the police searched Linton's bedroom, they smelled the strong odor of unburnt marijuana but found only a small amount of marijuana in little baggies. They also found three cartridge casings and two bullets, all of which had been fired from the same gun as the bullet that killed Johnson.

         In Linton's cell phone contacts, the police found phone numbers for "Ne-Yo Barbershop." Linton first told the police that these were numbers for a barbershop, but he later said that they were numbers for Appellant, whom Linton called "N.O." One of those numbers called Linton 15 times shortly after Linton called 911. The police determined that cell phones associated with that number and with another of the "Ne-Yo Barbershop" numbers, which the police independently connected to Appellant, were in the area of Linton's house around the time of the shooting.

         After Appellant and Linton were arrested, they were put together in a holding cell while waiting for preliminary hearings. Appellant told Linton that he had burned the clothes he wore during the shooting, that the gun was gone, and that he painted the white Volvo black, so if Linton kept his mouth shut, they would be "in the clear." When Appellant returned from his hearing, however, he told Linton, "I'm going to f**king kill you." About a year later, a black Volvo that was registered to the mother of Appellant's child was found; records indicated that the car was originally white. In addition, a Lexus connected to Appellant was located and searched shortly after his arrest. In the car, the police found $1, 878 and a vacuum sealer with a small amount of marijuana in it; an expert in drug dealing testified that such machines are often used to seal large packages of illegal drugs. When Appellant called the mother of his child from jail and she told him that the police had taken the Lexus, he sounded upset. In another phone call from jail, this one to his girlfriend, Appellant said, "I know I f**ked up. It's all messed up."[3]Prison medical records showed that 31 days after the shooting, Appellant was treated for a finger injury that he said he had suffered one month prior.

         (b) Appellant argues that the weight of the evidence presented at his trial does not support his convictions and that he should therefore be granted a new trial based on the so-called "general grounds" set forth in OCGA §§ 5-5-20 and 5-5-21.[4] Whether to grant a new trial under either of these statutes is a decision directed solely to the discretion of the trial court. See Dent v. State, 303 Ga. 110, 114 (810 S.E.2d 527) (2018). When an appellant asks this Court to review a trial court's denial of a new trial on these grounds, we review the case under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), meaning that we consider only whether the evidence, viewed in the light most favorable to the convictions, was sufficient to support them. See Dent, 303 Ga. at 114.

         Applying that standard, we conclude that the evidence presented at trial and summarized above was sufficient for a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. The evidence was clearly sufficient to prove that Appellant fatally shot Johnson, and although there was some evidence that he shot at Johnson to defend himself and Linton, the jury was entitled to give greater weight to the evidence that Appellant had a gun cocked and ready before the meeting with Denson and Johnson, while Johnson was unarmed. The jury could also consider Appellant's incriminating conduct after the shooting, including telling Linton to make the scene look like a burglary, threatening Linton, disposing of his gun and clothes, repainting his Volvo, and acknowledging to his girlfriend that he "f**ked up." See Ivey v. State, 305 Ga. 156, 159 (824 S.E.2d 242) (2019) ("[T]he jury is free to reject a defendant's claim that he acted in self-defense." (punctuation and citation omitted)); Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) ("'It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)).

         There was also evidence that Appellant was engaged in a felony drug deal at the time of the shooting, which would preclude his self-defense claim, as the jury was properly instructed. See OCGA § 16-3-21 (b) (2) ("A person is not justified in using force [in defense of self or others] if he . . . [i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony."); Smith v. State, 290 Ga. 768, 772 (723 S.E.2d 915) (2012).[5] This enumeration is therefore meritless.

         2. Appellant argues that his trial counsel was ineffective in withdrawing requests for jury instructions on mutual combat and voluntary manslaughter as lesser offenses of felony murder. Counsel initially requested those instructions, but after consulting with Appellant, he decided to withdraw them. In closing argument, counsel focused on highlighting weaknesses in the State's case, in particular the unreliability of Linton as a witness. In discussing Linton's changing stories, counsel also pointed out that Linton called Appellant a "hero."

         To succeed on his ineffective-assistance claim, Appellant must show that his trial counsel's performance was professionally deficient and that the deficiency likely affected the outcome of the trial; this Court need not "'address both components of the inquiry if the [appellant] makes an insufficient showing on one.'" Goodson v. State, 305 Ga. 246, 249 (824 S.E.2d 371) (2019) (quoting Strickland v. Washington, 466 U.S. 668, 687, 697 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984)). "Deciding which jury instructions to request is a matter of trial strategy," and to prove that counsel was deficient, Appellant must show that this strategy was patently unreasonable. Id. at 249-250.

A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.

OCGA § 16-5-2 (a). The defense of mutual combat requires the mutual willingness, readiness, and intent of both parties to fight. See Ruffin v. State, 296 Ga. 262, 264 (765 S.E.2d 913) (2014). A finding that a defendant was engaged in mutual combat when the victim was killed may authorize the jury to find the defendant guilty of voluntary manslaughter rather than murder. See Berrian v. State, 297 Ga. 740, 742 (778 S.E.2d 165) (2015).

         Appellant does not point to any evidence of voluntary manslaughter or mutual combat. Instead, Appellant focuses on Linton's statements that Appellant was a "hero" who saved lives. But that testimony supported an instruction on defense of self or others - which trial counsel requested and the trial court gave the jury - not an instruction on mutual combat or voluntary manslaughter. See id. at 743 ("'[F]ighting to repel an unprovoked attack[] is self-defense, and is authorized by the law, and should not be confused with mutual combat.'" (citation omitted)); Ruffin, 296 Ga. at 264 (explaining that evidence that the defendant acted in self-defense does not support an instruction on voluntary manslaughter based on mutual combat). Because there was no evidence supporting mutual combat or voluntary manslaughter instructions, trial counsel was not ineffective in declining to pursue them. See Jeffrey v. State, 296 Ga. 713, 716 (770 S.E.2d 585) (2015).

         3. Appellant next contends that the trial court erred in two ways when the jury indicated that it was deadlocked - first by failing to grant a mistrial, and second by giving a ...


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