Brett v. State

751 S.E.2d 59, 294 Ga. 30, 2013 Fulton County D. Rep. 3350, 2013 WL 5878144, 2013 Ga. LEXIS 890
CourtSupreme Court of Georgia
DecidedNovember 4, 2013
DocketS13A0701
StatusPublished

This text of 751 S.E.2d 59 (Brett v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brett v. State, 751 S.E.2d 59, 294 Ga. 30, 2013 Fulton County D. Rep. 3350, 2013 WL 5878144, 2013 Ga. LEXIS 890 (Ga. 2013).

Opinion

Benham, Justice.

Appellant David Banks Brett appeals his convictions for the shooting death of Jose Garcia-Castro.1 In his motion for new trial, appellant alleged his trial counsel rendered ineffective assistance, but the trial court denied the motion, finding appellant had failed to show that counsel’s performance was deficient. On appeal, appellant maintains his ineffective assistance claim, arguing that counsel failed to object to inadmissible hearsay and failed to appreciate and “adapt” the defenses available to his client during trial. We affirm for reasons discussed below.

The evidence construed in favor of the verdict showed appellant and the victim were part of a group of mutual friends and drinking buddies who lived in close proximity to each other. On June 9, 2011, appellant became upset when he learned that a dog in the victim’s care had died. Three witnesses testified that appellant expressed his anger about the dog’s death and made threats about killing the victim on June 9 and on June 10, the day of the shooting. After speaking with the victim on the telephone in the late afternoon of June 10, appellant went to the trailer home of a mutual friend and shot the victim.2 One witness stated the victim was armed with a knife from the kitchen by [31]*31the time appellant arrived; however, no one other than appellant witnessed the actual shooting. The two witnesses who were inside the house at the time said they only heard appellant and the victim exchange words and then heard the gunshot. At trial, appellant took the stand and testified that when he arrived at the trailer, he opened the front door and saw the victim with a knife in his hand. Appellant stated the victim came at him slowly at first and then quickened his pace moving the knife up and down with his hand as if he was going to throw the knife to injure appellant. Appellant stated he feared for his life and shot the victim with a gun he said he carried with him for protection. After the shooting, appellant stepped over the victim’s body and told the two people inside the trailer to call 911. Appellant then drove to his house where he waited for police to arrive. The victim was transported to the hospital where he died from his injuries. When the police arrived at appellant’s home, he told them he had gone to the friend’s house to “kick [the victim’s] ass,” when he arrived the victim had a knife, and he shot the victim with a gun he had brought with him. The sheriff testified that as appellant was being arrested, appellant uttered the words, “That’s one Mexican no one will miss.” The medical examiner testified the victim was shot in the chest and said the bullet passed through several vital organs including the heart, lung, and liver, causing the victim to die from internal bleeding.

1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Appellant’s sole enumeration of error is that his trial counsel rendered constitutionally ineffective assistance at trial. In order to prevail on such a claim, appellant

must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court. Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

[32]*32(a) At trial, a witness testified he had heard that appellant carried a gun and would threaten people with it. Trial counsel did not object to this testimony, and so appellant alleges counsel was deficient in his performance and but for counsel’s failure to object to this statement as hearsay or as improper prior difficulty evidence, the outcome of the trial would have been different. Pretermitting whether counsel was deficient for failing to object to the testimony, appellant cannot show he was prejudiced. Appellant himself testified that he carried a gun for protection and that he had a gun with him on the night he shot the victim. Appellant also admitted he wanted to fight the victim on the night in question. In light of appellant’s admissions, he cannot show that he was prejudiced by counsel’s failure to object to the testimony at issue.

(b) At the motion for new trial hearing, trial counsel testified that the theory of defense was justification based on appellant’s assertion that the victim came at him with a knife and that appellant feared for his life. Appellant now contends his counsel rendered ineffective assistance by failing to appreciate that a justification defense was not viable in light of testimony showing appellant intended to fight the victim, in light of some evidence showing the victim also agreed to the fight, and in light of the fact that the trial court charged on combat by agreement which is an exception to the justification defense.3 Appellant argues that with the instruction on combat by agreement, it was not possible for the jury to find justification without disregarding the jury instructions. Appellant further maintains that the only viable defense strategy at the close of evidence would have been instructing the jury on the lesser crime of voluntary manslaughter.

Pretermitting whether counsel was deficient for maintaining the defense of justification throughout the trial, appellant cannot show he was prejudiced thereby. Any evidence of combat by agreement was tangential at best, namely because no one but appellant witnessed the shooting or was privy to the preceding telephone call between appellant and the victim. Appellant testified that during the telephone conversation the victim told him, “I hear you think I need my ass whooped,” appellant asked the victim where he was, and the victim said he was at Billy’s house and for appellant to “come on down.” Another witness testified that after speaking with appellant on the telephone that day, the victim stated he was not going to let appellant kill him and that he would kill appellant. During the time [33]*33leading up to this telephone conversation, however, appellant had been making threats on the victim’s life to their mutual friends. In addition, appellant was equivocal about his reasons for going over to see the victim after their telephone conversation on the day of the shooting. On the one hand, appellant testified he just wanted to talk to the victim, but he also admitted he told police he had gone over there to “whoop [the victim’s] ass.” While some of this evidence may have mitigated against appellant’s justification defense, it was not necessarily strong evidence of combat by agreement. For example, there was no evidence of a scuffle between appellant and the victim and no evidence of any injury to appellant from a knife wielded by the victim. Considering this evidence, the jury could have reasonably concluded that the victim did not agree to fight appellant, but decided to defend himself against any aggressive behavior by appellant.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Pruitt v. State
644 S.E.2d 837 (Supreme Court of Georgia, 2007)
Pulley v. State
729 S.E.2d 338 (Supreme Court of Georgia, 2012)
Wright v. State
734 S.E.2d 876 (Supreme Court of Georgia, 2012)

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Bluebook (online)
751 S.E.2d 59, 294 Ga. 30, 2013 Fulton County D. Rep. 3350, 2013 WL 5878144, 2013 Ga. LEXIS 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brett-v-state-ga-2013.