Anthony v. State ( 2021 )

In the Supreme Court of Georgia
Decided: April 19, 2021
S21A0089. ANTHONY v. THE STATE.
WARREN, Justice.
Terrone Anthony was convicted of malice murder, armed
robbery, and possession of a firearm during the commission of a
felony in connection with the shooting death of Kavader McKibben.1
1 The crimes were committed on December 4, 2009. On December 22,
2009, a Fulton County grand jury indicted Anthony and his co-defendant,
Aaron Jackson, for malice murder, felony murder predicated on armed robbery,
felony murder predicated on aggravated assault, armed robbery, aggravated
assault, and possession of a firearm during the commission of a felony.
Anthony alone was indicted for possession of a firearm by a convicted felon and
a third count of felony murder predicated on that firearm offense. At a joint
trial held from August 18 to 23, 2011, the trial court directed verdicts of not
guilty for possession of a firearm by a convicted felon and the felony murder
count predicated on that offense. A jury found Anthony guilty of all remaining
counts and found Jackson not guilty on all counts. On August 25, 2011, the
trial court sentenced Anthony to serve life in prison for malice murder, a
concurrent term of 20 years for armed robbery, and a consecutive term of 5
years for possession of a firearm during the commission of a felony. The two
remaining felony murder counts were vacated by operation of law, and the trial
court merged the aggravated assault count into the malice murder count.
Anthony timely filed a motion for new trial on August 25, 2011, which he
amended through new counsel on September 11, 2019. The trial court denied
the amended motion on October 22, 2019. Anthony timely filed a notice of
On appeal, Anthony contends that his trial counsel provided
constitutionally ineffective assistance in four ways. We disagree
and affirm Anthony’s convictions.
The evidence presented at Anthony’s trial showed the
following. 2 On the evening of December 4, 2009, Anthony and an
accomplice entered a liquor store where McKibben was working.
Anthony—who was wearing a ski mask—pointed a firearm at
McKibben while the accomplice searched McKibben’s pockets and
took belongings from him and money from a cash register.
McKibben’s co-worker, Roland Williams, began walking toward the
back of the store, and Anthony followed. A shoot-out ensued shortly
thereafter. The store owner pulled a gun and fired at Anthony,
striking him in the leg. Anthony fired back, and in doing so struck
McKibben three times. As Anthony reached to open the door and
appeal on November 19, 2019, which he amended the next day. The case was
docketed in this Court to the term beginning in December 2020 and submitted
for a decision on the briefs.
2 Anthony does not raise the sufficiency of the evidence on appeal.
Therefore, under Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020),
we do not consider sufficiency of the evidence sua sponte.
2
leave, the owner shot Anthony in the arm. Anthony limped out of
the store, holding his arm. A security guard across the street
followed Anthony to a nearby house where Anthony stopped, having
left behind a trail of blood from the liquor store. When police officers
arrived, they found Anthony bleeding profusely, clad in the same
camouflage jacket that witnesses described the shooter wearing.
McKibben died at the liquor store from his wounds. Anthony and his
friend, Aaron Jackson, were arrested.
At trial, video surveillance of the shoot-out was played for the
jury. Anthony testified and admitted that he entered the store while
wearing a mask, held a gun while his accomplice took money from
McKibben, ran toward the back of the store because he thought an
employee was probably going to get a gun, and then fired his gun at
the store owner after the owner shot Anthony in the leg. However,
he denied that he planned to shoot anyone or intended to do so when
he entered the liquor store. Anthony also testified that his
accomplice was not Jackson, but another person. The trial court
charged the jury on mutual combat and justification. The jury found
3
Anthony guilty of malice murder, armed robbery, the firearm
offense, and other offenses that were vacated by operation of law or
merged for sentencing purposes, and found Jackson not guilty on all
counts.
1. 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. See Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (689 SE2d 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 SE2d 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 SE2d 675) (2015) (citation
and punctuation omitted). To carry the burden of overcoming this
4
presumption, a defendant “must show that no reasonable lawyer
would have done what his lawyer did, or would have failed to do
what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d
221) (2016). “In particular, decisions regarding trial tactics and
strategy may form the basis for an ineffectiveness claim only if they
were so patently unreasonable that no competent attorney would
have followed such a course.” Id. (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. See
Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her
burden of proving either prong of the Strickland test, the reviewing
court does not have to examine the other prong.” Lawrence v. State,
286 Ga. 533, 533-534 (690 SE2d 801) (2010).
2. Anthony’s first claim is that his trial counsel was ineffective
because he did not seek a mistrial when the State discovered that
the indictment mistakenly alleged that Anthony was a convicted
felon. This claim fails, however, because the record shows that trial
5
counsel made a reasonable, strategic decision to request a curative
instruction and chose not to request a mistrial.
Anthony was charged with possession of a firearm by a
convicted felon based on a prior burglary conviction and was charged
with felony murder predicated on that firearm offense; the
indictment charging those counts was read to the jury. However,
shortly before the State rested its case at trial, the prosecutor
discovered that Anthony was in fact a first-offender probationer and
not a convicted felon. As a result, the prosecutor moved to nolle pros
the two convicted-felon counts and asked the trial court for a
curative instruction. Anthony, Jackson, and their attorneys
discussed the issue, and Anthony’s counsel announced that he would
not be requesting a mistrial, only a curative instruction. The trial
court told Anthony that he had “to pick. I’m neutral as to which one,
but I need an answer.” Anthony himself confirmed that he wanted
to proceed in the way that his counsel announced: to request a
curative instruction instead of a mistrial. The trial court then gave
the following curative instruction that his counsel and Jackson’s
6
counsel proposed:
[A]t the commencement of this trial, I read the indictment
to you, and I read to you a charge that alleged that Mr.
Terrone Anthony was a convicted felon and a charge of
felony murder as to Mr. Terrone Anthony based upon the
claim that he was a convicted felon. Let me now advise
you that the State has advised me that count 8 is a
mistake. Terrone Anthony is actually not a convicted
felon, so this count is now removed from your
consideration in this indictment, as is count 3, which is
the felony murder charge based upon that claim. You are,
therefore, not to consider either of these charges. You are
to disregard anything that I might have read to you or
said to you associated with those charges because they
are, in fact, a mistake by the State.
The trial court later directed verdicts of not guilty on the two counts
at issue. At the hearing on the motion for new trial, Anthony
testified that his trial counsel told him that a mistrial was “nothing,”
that Anthony should not “go for” a mistrial, and that trial counsel
“like[d] the jury that we selected.” Trial counsel testified that he
and Jackson’s attorney “liked the jury” and that he thought the trial
court “had cured” the problem with the indictment with its
instruction.
Given that the convicted-felon counts of the indictment were
7
read only once, that trial counsel wanted to try Anthony’s case in
front of the jury that he had already selected, that Anthony agreed
to trial counsel’s recommendation to seek a curative instruction and
not a mistrial, and that the trial court informed the jury that the
State had made a “mistake” in the charges because Anthony was not
actually a convicted felon, Anthony has failed to show that his trial
counsel’s decision not to request a mistrial was objectively
unreasonable. See, e.g., Lynn v. State, 310 Ga. 608, 613-614 (852
SE2d 843) (2020) (considering that a witness’s reference to a prior
jury in the case was brief and counsel’s explanations for the decision
not to move for mistrial were reasonable, defendant did not show
that that decision was constitutionally deficient); State v. Goff, 308
Ga. 330, 335 (840 SE2d 359) (2020) (given the fleeting, nonspecific
nature of trial counsel’s reference to the defendant’s probation
status, trial counsel was not objectively unreasonable when he did
not move for a mistrial because he thought “‘we had a pretty good
jury and a pretty good trial going’”).
3. Anthony claims that his trial counsel was ineffective
8
because he put Anthony on the witness stand to admit that he was
one of the people who robbed the liquor store and that he shot
McKibben. We disagree.
The primary thrust of this claim is that trial counsel “forced”
Anthony to testify and admit to his role in the robbery and shooting,
even though Anthony wanted to present a defense that he had gone
to the liquor store only to collect money that McKibben owed
Anthony’s friend for drugs—a theory that he claims trial counsel did
not investigate. Anthony relies on his testimony at the hearing on
his motion for new trial to support this claim. Prior to his testimony
at trial, however, Anthony personally affirmed his decision to
testify. And the trial court was authorized to credit trial counsel’s
testimony at the hearing on Anthony’s motion for new trial that trial
counsel recommended to Anthony that he not testify, and that
counsel had never been informed about the alleged drug-debt theory
Anthony later described.
Although the trial court made no express factual findings or
credibility determinations in its order denying Anthony’s motion for
9
new trial, it was nonetheless “authorized to credit the testimony of
[Anthony’s] counsel,” “[a]nd in the absence of explicit factual and
credibility findings by the trial court, we presume implicit findings
were made supporting the trial court’s decision.” Davis v. State, 306
Ga. 430, 432-433 (831 SE2d 804) (2019) (citation and punctuation
omitted). Accordingly, even though Anthony’s “testimony
contradicted that of [his counsel], the trial court implicitly credited
[counsel’s] version of events when it denied [Anthony’s] ineffective
assistance claim, and we accept the trial court’s factual findings.”
Williams v. State, 308 Ga. 532, 536 (842 SE2d 1) (2020). As a result,
Anthony has failed to show that his trial counsel’s performance was
constitutionally deficient. See Brooks v. State, 305 Ga. 600, 607-608
(826 SE2d 45) (2019) (defendant failed to show that trial counsel
performed deficiently by failing to inform him adequately of his right
to testify, where the trial court found credible counsel’s testimony
that she had advised defendant of his right to testify, that it was not
in his best interest to testify, and that the decision to testify was
ultimately his to make).
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4. Anthony claims that his trial counsel was ineffective
because counsel failed to argue meaningfully on Anthony’s behalf in
closing argument. This claim also fails, however, because the record
shows that counsel’s closing argument was strategic and was not
objectively unreasonable.
To advance his argument, Anthony primarily relies on the first
portion of his counsel’s closing argument: “I don’t have a defense.
None whatsoever. Not at all. A defense is, I wasn’t involved. My
client was involved. His gun, his bullet, his hand. He fired the fatal
shot. I don’t have a defense. Not at all. None whatsoever.” Anthony
contends that these words constitute an admission of counsel’s
ineffectiveness and, more specifically, a demonstration that he did
not intend to prepare a plausible defense like mutual combat and a
failure to hold the State to its burden of proof.
“An attorney’s decision about which defense to present is a
question of trial strategy.” Hills v. State, 306 Ga. 800, 807 (833 SE2d
515) (2019) (citation and punctuation omitted). “Unless the choice
of strategy is objectively unreasonable, such that no competent trial
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counsel would have pursued such a course, we will not second-guess
counsel’s decisions in this regard.” Id. at 807 (citation and
punctuation omitted). With respect to closing argument, “[d]efense
counsel is permitted wide latitude . . . and is not ineffective simply
because another attorney might have used different language or
placed a different emphasis on the evidence.” Merritt v. State, 310
Ga. 433, 435 (851 SE2d 555) (2020) (citation and punctuation
omitted). Moreover, “[a] closing argument is to be judged in the
context in which it is made.” Styles v. State, 308 Ga. 624, 629 (842
SE2d 869) (2020) (citation and punctuation omitted).
Here, a review of the whole closing argument, together with
counsel’s testimony at the hearing on the motion for new trial, shows
that trial counsel developed the following defense strategy after
discussion with Anthony: conceding guilt of both armed robbery and
the firearm charge in an effort to maintain credibility with the jury;
convincing the jury that Anthony lacked the intent to commit malice
murder; and making a causation argument to negate the felony-
murder charge because Anthony discharged his firearm only after
12
completing the robbery and in the course of trying to protect himself.
Thus, even though trial counsel disclaimed Anthony’s defense to
armed robbery or the firearm charge, the full context of his closing
argument makes clear that he was arguing that the jury should find
Anthony not guilty of the more serious murder charges. Indeed, the
record shows that at the time of closing argument, counsel’s choices
were limited: the evidence of Anthony’s involvement in the armed
robbery and the shooting was overwhelming, and Anthony had
insisted on testifying and had specifically admitted his involvement
in the robbery and shooting. Moreover, in contrast to Anthony’s
testimony at the motion for new trial hearing, trial counsel testified
that Anthony never said that he entered the liquor store to help a
friend confront McKibben about a drug debt, thus undercutting the
defense theory that Anthony claimed he wanted to advance at trial.
Under these circumstances, trial counsel’s strategic decisions
about Anthony’s defense and how to argue it in closing were not
objectively unreasonable and therefore did not amount to
constitutionally deficient performance. See, e.g., Blackwell v. State,
13
302 Ga. 820, 825-826 (809 SE2d 727) (2018) (it is not patently
unreasonable for trial counsel to make a strategic decision to base
the defense on the evidence at trial and on the defendant’s consistent
account, rather than risk losing credibility with jury); Muller v.
State, 284 Ga. 70, 71 (663 SE2d 206) (2008) (it was a reasonable
strategy to argue that the defendant lacked the malicious intent
necessary to support a malice-murder conviction when any other
defense was problematic). 3
5. Finally, Anthony claims that his trial counsel was
ineffective by explicitly conceding in closing argument Anthony’s
guilt of armed robbery and, as a result, implicitly conceding his guilt
of felony murder. We again disagree.
To support his claim, Anthony points to the following portion
of counsel’s closing argument:
3 We note that because no convictions were entered on Anthony’s felony
murder charges, his ineffective assistance claims are moot to the extent they
pertain to the portions of trial counsel’s closing argument that reference felony
murder. See Darville v. State, 289 Ga. 698, 702 (715 SE2d 110) (2011)
(defendant’s contention that counsel was ineffective by failing to object to the
omission of a particular jury instruction on felony murder was moot because
defendant was found guilty of malice murder and no conviction was entered on
the felony murder charge).
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And he’s wrong for that and guilty of armed robbery, so
we don’t even have to talk about that. So when you go
back in the back, you just check that off; guilty of armed
robbery. That’s Count Number 5. He’s guilty of
possession of a firearm during the commission of a felony.
Just check that off. He’s guilty of that. He told you that.
Anthony’s complaint about this concession is closely related to the
preceding claim that we considered and rejected above in Division 4.
Here, however, Anthony more specifically argues that conceding
guilt of armed robbery was tantamount to a guilty plea that was
entered without his consent or a valid waiver of his constitutional
rights, and that this concession was improper and presumptively
prejudicial.
In Florida v. Nixon, 543 U.S. 175, 187 (125 SCt 551, 160 LE2d
565) (2004), the United States Supreme Court made clear that
although trial counsel “undoubtedly has a duty to consult with the
client regarding ‘important decisions,’ including questions of
overarching defense strategy,” id. at 187 (citing Strickland, 455 U.S.
at 688; emphasis supplied), “trial counsel is not obligated to obtain
client consent as to decisions regarding trial strategy,” Hendrix v.
15
State, 298 Ga. 60, 64 n.3 (779 SE2d 322) (2015) (citing Nixon and
offering as examples of decisions requiring client consent “decisions
regarding whether to plead guilty, whether to waive a jury trial,
whether to waive the right to testify, and whether to pursue an
appeal”) (emphasis in original). Counsel’s strategic choice to
concede guilt therefore “is not impeded by any blanket rule
demanding the defendant’s explicit consent,” Nixon, 543 U.S. at 192;
likewise, counsel “is not per se ineffective for adopting a strategy to
concede guilt, even if his client does not expressly consent to that
strategy,” Harris v. State, Case No. A20A2054, 2021 WL 854897, at
*5 (Mar. 8, 2021) (citing Nixon). Cf. McCoy v. Louisiana, ___ U.S.
___, ___ (138 SCt 1500, 1510, 1511, 200 LE2d 821) (2018) (holding
that “counsel may not admit her client’s guilt of a charged crime over
the client’s intransigent objection to that admission,” and “counsel’s
admission of a client’s guilt over the client’s express objection is error
structural in kind,” not requiring any showing of prejudice). To that
end, counsel’s strategic decision to concede guilt is typically
reviewed under the familiar Strickland standard, see Nixon, 543
16
U.S. at 192, and if undisputed evidence of a defendant’s guilt on a
lesser charge has been presented at trial, it is not an objectively
unreasonable trial strategy to concede guilt of that offense “in an
effort to avoid a conviction on the more serious murder charges.”
Favors v. State, 296 Ga. 842, 846 (770 SE2d 855) (2015). Applying
the relevant principles of an attorney’s duty to consult and analyzing
trial counsel’s strategy through the lens of Strickland, the Supreme
Court in Nixon rejected the defendant’s claim that trial counsel’s
concession of guilt was the “functional equivalent of a guilty plea”
because the defendant “retained the rights accorded a defendant in
a criminal trial.” Nixon, 543 U.S at 188.
So too here. The record shows that trial counsel’s concession of
Anthony’s guilt of armed robbery was part and parcel of his trial
strategy—which, as we have already explained above, was not
objectively unreasonable—of maintaining credibility with the jury,
convincing the jury that Anthony lacked the intent to commit malice
murder, and making a causation argument on the felony-murder
charge. That strategy did not require Anthony’s consent, and
17
Anthony made no “intransigent objection” to counsel’s concession of
guilt of armed robbery; to the contrary, counsel’s defense strategy
was wholly consistent with Anthony’s own testimony at trial. See
Nixon, 543 U.S. at 187, 192. Cf. McCoy, ___ U.S. at ___ (138 SCt at
1510). Moreover, just as in Nixon, counsel’s concession of Anthony’s
guilt of lesser offenses is not tantamount to a guilty plea, because it
occurred in the context of a jury trial, and only after the State was
required to present evidence establishing the essential elements of
the crimes with which Anthony was charged, the defense was
afforded the right to confront and cross-examine witnesses for the
prosecution, and Anthony made an informed decision to waive his
privilege against self-incrimination. See Nixon, 543 U.S. at 188-189.
In light of the overwhelming evidence of Anthony’s guilt of the lesser
offenses of armed robbery and the firearm offense, it was not an
objectively unreasonable trial strategy for counsel to concede guilt
of those offenses in an attempt to avoid Anthony being convicted of
18
a more serious murder charge. See Favors, 296 Ga. at 846.4
Judgment affirmed. All the Justices concur.
4 Notably, trial counsel’s concession—to which Anthony did not object—
could not amount to the kind of structural error that could raise a presumption
of prejudice. See Nixon, 543 U.S. at 193. Cf. McCoy, ___ U.S. at ___ (138 SCt
at 1511).
We further note that Anthony’s argument that trial counsel implicitly
conceded Anthony’s guilt of felony murder is moot because no convictions were
entered on the felony-murder charges. See Darville, 289 Ga. at 702.
19