Gold v. State

902 S.E.2d 593, 319 Ga. 149

• Court: Supreme Court of Georgia
• Decided: May 29, 2024
• Docket: S24A0445
• Status: Published

Opinion

319 Ga. 149 FINAL COPY

S24A0445. GOLD v. THE STATE.

MCMILLIAN, Justice.

Appellant Justin Christopher Gold was convicted of malice

murder in relation to the stabbing death of Antonio DePass.1 On

appeal, Gold argues that the trial court erred in charging the jury

on excessive force and that his trial counsel rendered ineffective

assistance by failing to object to evidence of DePass’s good character

or to a detective’s testimony about whether Gold’s conduct was

1 DePass died on September 11, 2018. On November 15, 2018, a DeKalb

County grand jury indicted Gold for malice murder (Count 1), felony murder (Count 2), aggravated assault (Count 3), and possession of a knife during the commission of a felony (Count 4). At a trial from November 8 through 16, 2021, a jury found Gold guilty on all counts. The trial court sentenced Gold to life in prison without the possibility of parole for malice murder, plus a consecutive five years in prison for the weapon charge. The felony murder count was vacated by operation of law, and the aggravated assault count merged for sentencing purposes. Gold filed a timely motion for new trial on November 17, 2021, which was amended by new counsel on July 28, 2023. Following a hearing on August 2, 2023, the trial court denied Gold’s motion for new trial, as amended, on October 10, 2023, except the trial court modified the sentence on Count 1 to life in prison with the possibility of parole. Gold filed a timely notice of appeal on November 1, 2023, and the case was docketed to the April 2024 term of this Court and thereafter submitted for a decision on the briefs. consistent with an assertion of self-defense. For the reasons that

follow, we affirm.

The evidence at trial showed that on the afternoon of

September 11, 2018, as a resident arrived home at the Covington

Glenn Apartment Complex and pulled into her parking spot, she

saw a man lying face-down in a pool of blood in the grass nearby, so

she called 911. Officers with the DeKalb County Police Department

arrived on the scene, where they found a dead body, later identified

as DePass, with wounds to the face, neck, and shoulder. Officers

found DePass’s car nearby, still running, with a trail of blood leading

from the driver’s side of the car to DePass’s body.

An Uber driver also saw DePass’s body, called 911, and spoke

with officers when they arrived. She explained during her 911 call

that she had received a request to pick up a rider from the

apartment complex, and when she arrived, she saw the body. She

also interacted with the man who had requested the ride, but she

cancelled his ride because he was “acting really strange” and “trying

to rush [her] off,” but she “didn’t feel comfortable leaving.” When

2 officers arrived on scene and spoke with the Uber driver, she

provided a physical description of the man who had requested the

ride; the e-mail address associated with the rider’s Uber account,

which included the name “jgold”; and the address where he had

requested to be taken.

Based on this information, an officer conducted surveillance on

that address, where he observed a person matching the description

given by the Uber driver exit the home while carrying a red bag and

ride away in the passenger side of a vehicle. The officer conducted a

traffic stop on the vehicle, and the passenger, Gold, was non-

compliant, yelled at the officer to shoot him and kill him, and tried

to flee as he was being arrested. The bag Gold carried contained a

bloody knife, and DNA testing confirmed the blood on the knife to be

DePass’s.

Gold was arrested and transported to the police department

where he waived his rights under Miranda v. Arizona, 384 U.S. 436

(86 SCt 1602, 16 LE2d 694) (1966), and was interviewed by

Detective Bryan Smith. The interview was audio-recorded. During

3 the interview, Gold initially stated that DePass was coming to meet

him to give him money but that when Gold came outside, he found

DePass already dead, after which Gold picked up the knife from the

ground; Gold also said that he noticed another person sitting in the

passenger seat of DePass’s car. After being challenged on this

version of events, Gold admitted that he and DePass had argued

over the money, but Gold maintained that he did not stab DePass.

Gold said that DePass arrived at the apartment complex and Gold

greeted him, but that Gold then went inside to change and when he

came back out, he found DePass on the ground bleeding; Gold

maintained that another person was sitting in DePass’s vehicle.

Later, another detective spoke to Gold, and at that time, Gold asked

“can I please just kill myself?,” before admitting that he stabbed

DePass, stating that DePass pulled a knife on him and swung it at

him, so Gold took it from DePass, and then Gold stabbed DePass

because “I was trying to defend myself and I was mad that he did

that.”

The medical examiner who performed DePass’s autopsy

4 testified that DePass suffered “probably 20 different cuts on his

face,” and a “fatal” stab wound to his shoulder that severed his aorta

and trachea, causing massive blood loss and blood aspiration; the

medical examiner ruled DePass’s death a homicide. DePass’s sister

testified at trial that shortly before DePass’s death, Gold had

contacted their mother about money that DePass owed him. During

their investigation, law enforcement officers also discovered text

messages sent between Gold and DePass on September 11, 2018,

about settling a drug debt; in those messages, DePass expressed

anger about Gold contacting DePass’s mother regarding the debt.

1. Gold contends that the trial court erred in charging the

jury on excessive force.2 More precisely, Gold argues that because

he—who provided the only direct evidence about what happened

2 The trial court charged the jury:

A defendant is not justified in using excessive force while acting in self-defense. If you decide that the defendant used more force than was reasonably necessary to defend against the alleged victim’s threats or use of force, then the defendant’s actions would not be justified. See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 3.16.20.

5 during the altercation between himself and DePass—claimed that

he acted in response to DePass attacking him with the knife, there

was no evidence that DePass used anything less than deadly force,

making it confusing and misleading to charge the jury on excessive

force.

Gold objected to the excessive force charge at the charge

conference and renewed his objection after the trial court charged

the jury, so the issue is preserved for ordinary review on appeal.

Wynn v. State, 313 Ga. 827, 839 (5) (874 SE2d 42) (2022). “When

determining whether a charge is erroneous, we look to the charges

given as a whole.” Id. (citation and punctuation omitted). “Jury

instructions must tell the jury the law of the case fully and fairly

and are authorized if supported by slight evidence.” Bowman v.

State, 317 Ga. 457, 463 (2) (b) (893 SE2d 735) (2023) (citations and

punctuation omitted).

The trial court provided the full suggested pattern jury

instructions on self-defense, including that “[a] defendant is justified

in using force that is intended or likely to cause death or serious

6 bodily injury when he reasonably believes that the use of such force

is necessary to prevent a death or serious bodily injury to himself or

the commission of a forcible felony, which means a felony that

involves the use of force or violence against another”; “[t]he State

has the burden of proving beyond a reasonable doubt that the

Defendant’s actions were not justified”; and “[a] person who is not

the aggressor is not required to retreat before being justified in using

force he or she reasonably believes to be necessary.” See Georgia

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases §§

3.10.10; 3.10.13.

These charges were a correct statement of the law, see OCGA

§§ 16-3-20 (1); 16-3-21 (a); 16-3-23.1, and, given the evidence

presented, the trial court did not err in also giving the suggested

pattern jury instruction on excessive force as part of its broader

instructions on self-defense. Although Gold claimed that DePass

pulled the knife on him and that Gold was defending himself in

disarming DePass, the jury was not required to believe this account,

particularly in light of Gold’s conflicting stories about the stabbing.

7 Moreover, Gold inflicted some 20 knife wounds upon DePass, which

was at least slight evidence that the force Gold used was excessive.

See Wynn, 313 Ga. at 838-40 (5) (holding that trial court’s self-

defense charge, which included charge on excessive force, “when

viewed as a whole, was proper” where the only evidence about the

sequence of events leading to the deceased’s death came from the

defendant’s testimony that the deceased was the initial aggressor

and was going to kill him); Welbon v. State, 278 Ga. 312, 312 (1), 313

(3) (602 SE2d 610) (2004) (explaining that “[t]his Court has held that

the [excessive force] charge, which comes from the Suggested

Pattern Jury Instructions, is a correct statement of the law, and it

was proper in light of the entire justification charge given,” where

defendant claimed that he shot the deceased four to six times in self-

defense because she was reaching for a gun (citation omitted)); see

also Jackson v. State, 317 Ga. 139, 144 (1) (891 SE2d 878) (2023)

(“[E]ven if [the deceased] was the initial aggressor as [the defendant]

claimed, a jury could easily reject his self-defense claim given that

[the defendant] brutally and repeated[ly] stabbed [the victim].”).

8 Accordingly, this enumeration of error fails.

2. Gold also asserts that his trial counsel rendered ineffective

assistance by failing to object (a) to improper evidence of DePass’s

good character from the testimony of DePass’s sister and (b) to

testimony of Detective Smith that opined that Gold’s actions were

not consistent with an assertion of self-defense. These claims fail.

To succeed on a claim of ineffective assistance of counsel, Gold

must show both that his counsel’s performance was deficient and

that such deficiency prejudiced his defense. See Strickland v.

Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984). To satisfy the deficiency prong, Gold must demonstrate that

his counsel “performed at trial in an objectively unreasonable way

considering all the circumstances and in the light of prevailing

professional norms.” Bacon v. State, 316 Ga. 234, 239 (3) (887 SE2d

263) (2023) (citation and punctuation omitted). In doing so, Gold

must overcome “[a] strong presumption . . . that trial counsel’s

performance was reasonable and that counsel’s decisions and

choices at trial fell within the broad range of professional conduct as

9 assessed from counsel’s perspective at the time of trial and under

the specific circumstances of the case.” Id. (citation and punctuation

omitted). To establish prejudice, Gold “must prove that there is a

reasonable probability that, but for his trial counsel’s deficiency, the

result of the trial would have been different.” Bates v. State, 313 Ga.

57, 62 (2) (867 SE2d 140) (2022). And if Gold fails to make a

sufficient showing on either the deficiency or the prejudice prong,

we need not address the other prong. See Washington v. State, 313

Ga. 771, 773 (3) (873 SE2d 132) (2022).

(a) Gold argues that his trial counsel rendered ineffective

assistance by failing to object under OCGA §§ 24-4-404 (character

evidence) and 24-6-608 (character and conduct of witness) to

DePass’s sister’s trial testimony, in response to the prosecutor’s

question “can you tell the jury just a little about who your brother

was as a person?,” that “Antoine was the life of the party, the nice

guy. He was always willing to help someone,” and that “[h]e was a

great dad.”

We recognize that “reasonable decisions as to whether to raise

10 a specific objection are ordinarily matters of trial strategy and

provide no ground for reversal,” Clements v. State, 317 Ga. 772, 798

(7) (c) (896 SE2d 549) (2023) (citation and punctuation omitted), and

that an attorney in the position of Gold’s trial counsel may

reasonably choose not to object to certain evidence even if it is

objectionable, particularly where, as here, DePass’s sister’s

comments were fleeting and counsel may not have wanted to

antagonize a sympathetic witness. See, e.g., Moore v. State, 315 Ga.

263, 268-69 (2) (c) (882 SE2d 227) (2022) (counsel acted reasonably

in not objecting to victim’s grieving mother’s testimony that victim

was “a ‘good kid’ and a good older brother,” as trial counsel “might

very well have wanted to avoid the appearance of attacking a grief-

stricken witness”); Kilpatrick v. State, 276 Ga. 151, 152-53 (2) (575

SE2d 478) (2003) (counsel acted reasonably in not objecting to non-

crucial testimony of victim’s mother to avoid appearing insensitive).

However, we need not decide whether counsel’s failure to object to

this allegedly improper good character evidence fell within the broad

range of professional conduct because Gold has not carried his

11 burden of proving a reasonable probability that had his trial counsel

successfully objected to DePass’s sister’s brief positive comments

about her brother, the result of Gold’s trial would have been

different.

As the trial court observed in its order denying Gold’s motion

for new trial, it is unlikely the jury was surprised to hear DePass’s

sister remember her deceased brother fondly. Moreover, despite

Gold’s argument on appeal that this testimony was detrimental to

his claim that DePass was the initial aggressor, DePass’s sister’s

testimony did not touch on whether DePass had a character of

peacefulness and thus provided little, if any, rebuttal to Gold’s claim

that DePass attacked him first. Cf. OCGA § 24-4-404 (a) (2)

(“[E]vidence of a character trait of peacefulness of the alleged victim”

may be “offered by the prosecution in a homicide case to rebut

evidence that the alleged victim was the first aggressor.”). Finally,

aside from the complained-of testimony, the evidence of Gold’s guilt

was strong. This evidence included Gold’s admission that he stabbed

DePass, Gold’s possession of the murder weapon, his leaving the

12 scene without calling for any aid for DePass, the several changing

versions of events he told police, his statement that he stabbed

DePass, in part, because he was mad at DePass, evidence that

DePass suffered about 20 different cuts on his face in addition to the

fatal stab wound, evidence of motive regarding a money debt

between the two men, and Gold’s erratic behavior after the killing

in attempting to flee and repeatedly expressing a desire to die

himself. See, e.g., Clements, 317 Ga. at 798 (7) (c) (“Even if [a

witness’s] testimony was improper character evidence that should

have been excluded . . . the admission of this testimony did not

prejudice [defendant’s] defense given the other compelling evidence

[of guilt].”); Ingram v. State, 316 Ga. 196, 203-05 (1) (a) (887 SE2d

269) (2023) (no prejudice in failing to object to testimony of the

mother of the victim’s children that the victim was “a good person”

and a “good father” who “would give you literally the shirt off his

back” and of the victim’s girlfriend that the victim was “a very caring

person” who “loved his family” and “[w]anted everybody to be happy

around him,” because “[t]he evidence of [defendant’s] guilt in this

13 case was strong” (punctuation omitted)). Because Gold has failed to

establish that he was prejudiced by trial counsel’s failure to object,

this claim of ineffectiveness fails.

(b) Gold argues that his trial counsel rendered ineffective

assistance by failing to object on the proper grounds to a portion of

Detective Smith’s testimony. Specifically, Detective Smith was

asked on direct whether a statement Gold made in his interview—

that he “didn’t want to be around when the police came”—was “[i]n

[Detective Smith’s] experience, . . . consistent with self-defense[.]”

Detective Smith replied, “No.”3 Gold argues that trial counsel should

have objected to Smith’s testimony on the grounds that it improperly

drew a legal conclusion and opined on the law regarding self-

3 This testimony came during the following exchange between the prosecutor and Detective Smith: Q: Okay. And Justin said I just didn’t want to be around when the police came. Is that what he just said on the tape? A: Yes, it is. [Trial Counsel]: Objection, Your Honor, leading. Court: Sustained. Don’t lead the witness. [State]: I’ll rephrase. By the prosecutor: Q: In your experience, is a statement like that consistent with self defense? A: No. 14 defense.

This testimony of Detective Smith was permissible under

OCGA § 24-7-701 (a)4 and OCGA § 24-7-704 (a).5 Relying on these

Code provisions, we have held that as a general matter a lay witness

may offer opinion testimony based on experience even if the

testimony touches upon an ultimate issue to be decided by the jury.

See Grier v. State, 305 Ga. 882, 884-86 (2) (a) (828 SE2d 304) (2019)

(witnesses’ opinion that defendant “must have been the one to kill

the victims” was not inadmissible for “invad[ing] the jury’s province

and comment[ing] upon the ultimate issue” but was admissible

under OCGA §§ 24-7-701 (a) and 24-7-704 (a)); see also Mack v.

4 OCGA § 24-7-701 provides:

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are: (1) Rationally based on the perception of the witness; (2) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24- 7-702 [Expert testimony; qualifications as expert]. 5 OCGA § 24-7-704 (a) states: “[T]estimony in the form of an opinion or

inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.” 15 State, 306 Ga. 607, 609-10 (2) (832 SE2d 415) (2019) (no error in

admitting comments by detective that touched on the ultimate issue

of accident in a fatal shooting where the comments were offered as

lay opinion and to counter the defense’s theory); Taylor v. State, 365

Ga. App. 30, 32-33 (877 SE2d 286) (2022) (detective’s testimony that

based on his experience, autopsy evidence was inconsistent with

defendant’s self-defense theory, an ultimate issue in the case, was

admissible lay witness testimony, rather than inadmissible expert

testimony) (citing Bullard v. State, 307 Ga. 482, 492 (4) (837 SE2d

348) (2019); Mack, 306 Ga. at 609-10 (2)).

“Trial counsel cannot be deficient for failing to object to

admissible testimony.” Grier, 305 Ga. at 886 (2) (a). Therefore, this

claim of ineffective assistance also fails.

Judgment affirmed. All the Justices concur.

16 Decided May 29, 2024.

Murder. DeKalb Superior Court. Before Judge Asha Jackson.

Daniel H. Petrey, for appellant.

Sherry Boston, District Attorney, Thomas L. Williams, Deborah

D. Wellborn, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Meghan

H. Hill, Michael A. Oldham, Clint C. Malcolm, Senior Assistant

Attorneys General, for appellee.