SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 20, 2016
In the Court of Appeals of Georgia
A16A0970. HARRIS v. THE STATE.
BARNES, Presiding Judge.
Timothy Harris shot and killed a man inside his house, and was tried on several
counts of felony murder, aggravated assault, firearms possession, and other offenses.
The jury convicted Harris of the lesser included offense of voluntary manslaughter
and other charges and the trial court sentenced him to 20 years to serve, followed by
5 years on probation. Following the denial of his motion for new trial, Harris appeals,
arguing that his trial counsel was ineffective for withdrawing his requested charge of
defense of habitation. For the reasons that follow, we conclude that the trial court did
not abuse its discretion in concluding that trial counsel’s decision to withdraw that
defense was not deficient performance, and affirm.
1. Harris was indicted for felony murder for causing the victim’s death by
shooting while committing the offense of possession of a handgun by a convicted
felon, and for felony murder for causing the victim’s death by shooting while
committing the offense of aggravated assault.1 The jury found him not guilty of the
first count of felony murder and guilty of the lesser included offense of voluntary
manslaughter in the second count of felony murder.
Although [Harris] does not dispute that the evidence is legally sufficient
to sustain his convictions, we nevertheless review the record and
independently assess the legal sufficiency of the evidence. In doing so,
we apply the familiar standard of Jackson v. Virginia, 443 U. S. 307 (99
SCt 2781, 61 LE2d 560) (1979), asking whether any rational trier of fact
could find beyond a reasonable doubt from the evidence adduced at trial
that [Harris] is guilty of the crimes of which he was convicted. See 443
U. S. at 319 (III) (B).
White v. State, 293 Ga. 523, 523 (1) (753 SE2d 115) (2013).
So viewed, the evidence showed that Harris and his nephew lived in the same
house, and the victim was a friend of Harris’s who came over nightly and sometimes
stayed at the house. Another friend of Harris’s testified that he went to the house that
evening hoping to get high on cocaine, which he usually bought from the nephew.
Harris let him in, and the friend heard the victim back in the nephew’s bedroom
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Harris was also convicted of aggravated assault, which merged into the
voluntary manslaughter conviction, two counts of possession of a firearm during the
commission of a crime, one of which the trial court directed a verdict of acquittal,
making a false statement, and tampering with evidence, and acquitted of possession
of a firearm by a convicted felon.
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“yelling in general about some female.” The friend went back and suggested that the
victim step out of the bedroom to let the nephew dress, and the victim responded that
he was going to confront Harris about money Harris owed him.
The victim went into the living room where Harris was lying on the couch and
began jabbing him with a six- to seven-foot stick about the size of a closet rod, so the
friend stepped between Harris and the victim. After the victim hit the friend in the
face, the friend finally wrested the stick away, threw it down, and announced his
intention to leave the house. Harris got up from the couch and the friend pushed the
victim to the doorway, trying to get him to leave, but the friend was unable to control
the victim by himself. The nephew ran out the door, and as the friend yelled for the
nephew to come back and help defuse the situation, the victim “got upset again,”
walked back into the house, and confronted Harris a second time.
The friend heard the victim screaming and cursing at Harris but could see only
Harris. He saw a flash, heard a pop, and then heard the victim stumbling back towards
the bedroom. The friend went to the victim, who said, “Don’t let him shoot me
again.” The friend saw an object in Harris’s hand, but could not tell if it was a gun or
not. The friend tried to get the victim to lie down while directing Harris, whom he
described as “hysterical,” to call 911. The friend finally dialed 911 himself and
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handed the phone to Harris, although he did not actually hear Harris speak to an
operator. The friend finally managed to get the victim to lie down and then left the
scene within two minutes of the shooting, explaining that he was high and frantic and
did not know what to do.
The nephew testified that he saw the victim in the living room hitting Harris
with a stick and offered to pay the victim whatever Harris owed “just to keep the
commotion down.” The victim responded, “Bump you, I don’t want your money.
Somebody [sic] going to die tonight.” The nephew confirmed that the friend got
between Harris and the victim, but the victim kept swinging his stick and hitting both
men until Harris “staggered up out of there and that’s when the gun went bang.” The
nephew testified that Harris was standing by the kitchen and shot the victim when the
victim rushed Harris with the stick again. The nephew also testified that after the
friend took Harris’s gun and left with it, Harris called the police. The nephew
admitted he left the scene too.
A 911 supervisor testified that an operator received an emergency call at 3:12
a.m. from a man later identified as Harris. The supervisor prepared a report that
quoted the caller as saying, “Its [sic] been an accident, send the police” and noted that
the caller then hung up and no one answered a call back. A patrol officer was
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dispatched two minutes later and responded six minutes after that to find Harris alone
in the house with the victim, who was lying on a bedroom floor with his pants down
around his knees.
The victim appeared to be dead, and the officer testified that there was “blood
everywhere in the room,” some of which had already dried. Harris initially told the
responding officer that the victim had been shot by another man, but later admitted
having shot the victim himself. In his second statement, Harris told the police that the
victim came to the house and woke him with a stick. Harris said he went to the
kitchen, pulled a gun from the drawer, and shot the victim in self-defense.
A paramedic who responded to the scene testified that the victim had been shot
in the chest and his skin temperature was cool. Congealed blood was on the floor, and
the paramedic testified that it normally took about two hours for blood to congeal.
Also, rigor mortis was setting into the victim’s body, and that generally occurred from
about an hour and a half to two hours after death. A crime scene investigator testified
that he found a mop with bloody fingerprints on the handle sitting in a bucket of dark
water at the scene, and a latent print examiner with the GBI testified that she matched
a print from the mop handle to Harris. The medical examiner testified that the victim
was shot in the chest from a few feet away, and the bullet struck the victim’s
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pulmonary artery, causing massive internal bleeding and death within five to ten
minutes.
The jury could have determined that after the friend took the victim’s stick
away, the victim had stopped his attack on Harris, and that Harris’s actions in going
into his kitchen, pulling a gun from the drawer, and shooting the victim in the chest
were disproportionate to the threat presented. See OCGA § 16-3-21 (a) (person
justified in using force intended or likely to cause death or great bodily harm only if
he reasonably believes such force necessary to prevent death or great bodily injury
to himself) Further, Harris’s initial statement to the police in which he lied about
someone else having shot the victim, along with evidence that he altered the crime
scene, disposed of the handgun, and called the police only after the victim’s blood
had congealed and rigor mortis had set in, could be viewed by a rational jury as
consciousness of guilt. Sweet v. State, 278 Ga. 320, 325 (7) (602 SE2d 603) (2004)
(attempt to blame another for shooting victim was relevant as evidence of
consciousness of guilt); White v. State, 127 Ga. 273, 275 (56 SE 425) (1907) (“The
conduct of a person charged with a crime, indicating a consciousness of his guilt, is
relevant evidence against him.”)
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Considering all of the evidence as summarized above, it was sufficient to
authorize a rational jury to find Harris guilty of voluntary manslaughter and the other
offenses of which he was convicted. Neverson v. State, 324 Ga. App. 322, 323-324
(1) (750 SE2d 397) (2013).
2. Harris argues that his trial counsel was ineffective for withdrawing his
request to charge the jury on defense of habitation under OCGA § 16-3-21. The State
responds that the defense was not supported by the evidence and that trial counsel
made a reasonable strategic decision to pursue a defense of only justification.
A person accused of a crime has a right to the effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (104 SCt 2052, 80 LE2d 674) (1984).
Strickland established a two prong test for a claim of ineffective assistance of
counsel: first, the appellant must show that counsel’s performance was deficient, and
second, the appellant must show that counsel’s deficient performance prejudiced his
defense. Id. at 687. “[T]he burden is on the defendant to make both showings, and ...
a reviewing court could find lack of sufficient prejudice without deciding whether
counsel’s performance was deficient” or vice-versa. Smith v. Francis, 253 Ga. 782,
783(1) (325 SE2d 362) (1985).
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In deciding whether trial counsel’s performance was deficient under the first
prong of Strickland, Georgia has followed most federal and state courts and adopted
the “reasonably effective assistance” standard, which asks whether counsel’s
assistance was reasonable considering all of the circumstances. Smith, 253 Ga. at 783
(1). This standard also entitles counsel to “a strong presumption . . . that counsel’s
conduct falls within the wide range of reasonable professional conduct and that all
significant decisions were made in the exercise of reasonable professional judgment.”
Id. We review a trial court’s decision on an ineffective assistance claim for abuse of
discretion. Robinson v. State, 332 Ga. App. 240, 251 (5) (b) (771 SE2d 751) (2015).
Here, the trial court reviewed the evidence and found that Harris’s trial counsel
was an experienced and seasoned criminal defense attorney whose testimony at the
motion for new trial hearing was credible. The court found that the victim attacked
Harris rather than Harris’s habitation, that self-defense was an appropriate defense,
and that trial counsel “reasonably and strategically” decided to withdraw his request
for a jury charge on defense of habitation and proceed with only a self-defense claim.
Trial counsel submitted the following request to charge:
One who is not the aggressor is not required to retreat before being
justified in using such force as is necessary for personal defense or in
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using force that is likely to cause death or great bodily harm if one
reasonably believes such force is necessary to prevent death or great
bodily injury to oneself or a third person or to prevent the commission
of a forcible felony.
During the charge conference, trial counsel withdrew that request without
discussion, later explaining at the motion for new trial hearing that “the way the case
played out at trial, it was pretty much an accepted fact that [the victim] stayed there
regularly. He was sort of like an extended member of the family. And at the time of
the incident, [the victim] was acting kind of crazy . . . which led to the incident,
versus [the victim] being an intruder.”
Trial counsel testified at the new trial hearing that he was familiar with the
defenses of justification or self-defense and habitation, and knew that there was case
law that allowed for the defense of habitation “whether the victim was a common
guest or not.” Here, his recollection was that “originally [the victim] came at Mr.
Harris with a stick, struck him on the nose, causing some minor injury. And then after
it diffused [sic] somewhat, [the victim] then became belligerent again and came after
Mr. Harris, and Mr. Harris retreated and got a gun and shot him,” as opposed to the
victim having come straight into the house. Trial counsel further explained, “[A]t the
time of the incident [the victim] didn’t fit the classic pattern of being an intruder,
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which is why I settled with going solely with self-defense versus going with self-
defense and then defense of habitation,” and made the decision to withdraw the
charge of defense of habitation.
Harris first argues that his trial counsel’s withdrawal of the defense of
habitation defense constituted deficient performance, satisfying the first prong of the
Strickland test. He contends that the evidence could have supported a charge on
defense of habitation, and therefore trial counsel’s failure to ask for such a charge
constituted deficient performance. The issue here is not, however, whether “any
evidence, however slight” would have supported the charge, as it was in Hendrix v.
State, 268 Ga. App. 455, 456 (1) (602 SE2d 133) (2004) (no error in trial court’s sua
sponte decision to charge the jury on self-defense, because some evidence supported
it). Rather, the issue is whether trial counsel was deficient for focusing on what he
thought was the stronger defense.
The statute on defense of habitation, OCGA 16-3-23, provides:
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; however, such person is justified in the
use of force which is intended or likely to cause death or great bodily
harm only if:
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(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.
The key to this defense is that the resident defendant had to use force either to
prevent or terminate an unlawful entry into or attack on the defendant’s residence.
Additionally, the use of deadly force is only defensible if the victim entered or tried
to enter “in a violent and tumultuous manner,” “unlawfully and forcibly,” or for the
purpose of committing a felony.
Here, Harris admitted to the police that the victim stayed with him periodically,
that the victim had come over that night to drink, and that Harris had let him inside
through the front door. Harris’s friend testified that when he came to the house, the
victim was already back in the nephew’s bedroom. The nephew also testified that the
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victim was at the house “like every night” and sometimes stayed there. The record
contains no evidence that the victim entered violently, unlawfully, forcibly, or with
the intent to commit a felony.
Harris argues that the victim’s “refusal to cross the threshold” and leave the
premises, coupled with his continued efforts to assault “was a violent and tumultuous
entry for the purposes of violence to persons within the home” and supported a charge
on defense of habitation under OCGA § 16-3-23. But
[t]he statute is clearly concerned with the use of deadly force to counter
entry, or attempted entry, into the home..., and there is no evidence that
[the victim] made any threats against the habitation. Further, he was
there as a guest of [Harris], who was a resident of the [house], and
defense of habitation is not a defense available to a defendant when the
victim is a guest in the home.
Stobbart v. State, 272 Ga. 608, 612 (4) (533 SE2d 379) (2000). See also Reese v.
State, 289 Ga. 446, 447 (2) (711 SE2d 717) (2011) (no error in failing to charge
defense of habitation absent evidence victim made unlawful entry into or attack on
house, victim entered in violent manner, or defendant reasonably believed victim
intended personal violence); Neverson v. State, 324 Ga. App. at 325 (2) (defense of
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habitation unavailable when evidence established victim was present on porch as
guest and refused to leave).
Harris points out that our Supreme Court found trial counsel ineffective for
failing to request a charge on defense of habitation in Benham v. State, 277 Ga. 516,
517-518 (591 SE2d 824) (2004). But in Benham, the “victim” had been assaulting the
defendant through an open window while attempting to enter the defendant’s car
(which constitutes a “habitation” under OCGA § 16-3-24.1). Trial counsel testified
that she requested only a charge on self-defense and not on defense of habitation
because she wanted the jury to believe that the defendant had feared for her safety and
was not “merely protecting her vehicle.” Id. at 517. The court found that trial counsel
did not “appreciate that the defense of habitation may have justified the use of deadly
force in this case even if that amount of force was not necessarily required to repel
[the other woman’s] attack,” because the woman had attempted entry in a violent or
tumultuous manner for the purpose of assaulting the defendant. Id. Thus, trial
counsel’s failure “to adequately research and understand the defenses available to the
defendant” constituted deficient performance. Id. at 517-518 (1).
Similarly, in Robison v. State, a victim was entitled to use force against the
defendant, who was initially in the house as a guest, because the defendant left the
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house when asked to, retrieved a meat cleaver from his car, and returned to chase the
victim into his bedroom. 277 Ga. App. 133, 133-134 (625 SE2d 533) (2006). The
defendant’s re-entry into the habitation was violent and tumultuous, and the victim
reasonably believed he was returning to assault him. Id. at 134. In contrast, the victim
in this case was invited into the house and never left. Because the uncontroverted
evidence adduced at trial would not have authorize a charge of defense of habitation,
the trial court committed no abuse of discretion in finding that trial counsel’s
withdrawal of that charge was not deficient performance.
Absent a finding of deficient performance, we need not consider whether
withdrawing the defense of habitation charge prejudiced Harris’s defense.
Judgment affirmed. Boggs and Rickman, JJ., concur.
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