Anthony v. State , 298 Ga. 827 ( 2016 )

In the Supreme Court of Georgia
Decided: April 4, 2016
S16A0059. ANTHONY v. THE STATE.
BLACKWELL, Justice.
Appellant Danny Lorenzo Anthony was tried by a Taylor County jury and
convicted of murder. He appeals, contending that the evidence is legally
insufficient to sustain his convictions and that the trial court erred when it
denied his motion for pretrial immunity, when it failed to excuse a prospective
juror for cause, when it admitted evidence of other acts of the appellant, and
when it charged the jury. Upon our review of the record and briefs, we see no
error, and we affirm.1
1
The victim was killed on October 20, 2011. The appellant was indicted on June 11,
2012 and charged with malice murder, felony murder, and aggravated assault. His trial
commenced on March 11, 2013, and the jury returned its verdict four days later, finding him
not guilty of malice murder and guilty on both of the other counts. The appellant was
sentenced to imprisonment for life for the felony murder, and the aggravated assault merged
with the felony murder. The appellant timely filed a motion for new trial on April 8, 2013,
and he amended it on January 6, 2014. The trial court denied his motion on November 12,
2014, and the appellant timely filed a notice of appeal on November 17, 2014. The case was
docketed in this Court for the January 2016 term and was submitted for decision on the
briefs.
1. Viewed in the light most favorable to the verdict, the evidence shows
that the appellant and his wife, Pam Anthony, raised horses. The Anthonys were
longtime friends of Harry and Linda Nipper, and Harry cared for the Anthonys’
horses as a farrier. In October 2010, Linda discovered — and told the appellant
— that Harry and Pam were having an affair. Although Harry and Pam denied
the affair, the appellant sent Harry a letter terminating his farrier services and,
after a failed reconciliation attempt, made Pam leave their home in January
2011. Pam moved into a nearby trailer, filed for divorce several months later,
and continued her affair with Harry. Twice thereafter, she reported to the
Sheriff’s Department that her car had a flat tire caused by a large cut, and the
appellant later admitted that he slit her tire once when she had parked her car at
a courthouse where she was to meet Harry. About two weeks before the
shooting, the appellant told Linda that he planned to use legal means to take
photos of Harry and Pam together, which he intended to use as evidence in his
divorce case. When Linda expressed concern about the plan, the appellant said
that he had something that would “handle” Harry, and the appellant showed
Linda a gun that he was carrying.
2
On October 20, 2011, Harry told Pam that he would pick her up at the end
of her driveway. The appellant drove by and stopped his truck just as Harry was
arriving. Harry exited his truck, approached the appellant’s truck, and told the
appellant that, if he had something to say, he should come and say it. Pam heard
two shots and ran to the front of her residence, where she found Harry leaning
against a tree. Harry said, “I hit him, Pam; he shot me, he shot me, Pam.” The
appellant then drove his truck through the front yard as Harry ran away. Harry
fell to the ground, and the appellant exited his truck, stood over Harry with a
gun, and cursed him. The appellant said that he wanted to see Harry “f**k her
now” and that the appellant was “going to watch [Harry] die.” The appellant
also told Pam to “[s]ee what [Harry] could do for you now, see if you can f**k
him now. . . . [Y]ou’re going to watch him die.” After walking away and calling
911, the appellant called Linda, calmly telling her that he “just shot Harry. . . .
[H]e slapped me upside the head, so I shot him.” And when law enforcement
officers arrived, the appellant told them about the affair and said that Harry “hit
him upside the head and [the appellant] shot him.”
Responding officers discovered no bruising, bleeding, or other injury on
the appellant’s face or body. According to the medical examiner, Harry died
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from a single gunshot wound that perforated his heart, and the shot was fired
from an indeterminate range at least two to three feet away. The firearms
examiner testified that the shot was fired from a distance of 24 to 30 inches
away. Although Harry was a much larger man than the appellant, and although
the appellant presented several witnesses in support of his theory of self-
defense, he admitted during his own testimony that he told his daughter that he
“screwed up,” that Harry “hit me first but I let my temper go away, I guess,” that
“I lost control of my actions,” and that he could have driven away from the
confrontation.
About the sufficiency of the evidence, the appellant argues that the State
failed to prove beyond a reasonable doubt that he was not justified in shooting
Harry. The appellant relies on his own testimony, as corroborated by Pam, that
he carried a gun to protect himself from Harry, who had a reputation for
violence and had threatened the appellant, that the appellant never intended a
confrontation with Harry, and that Harry hit the appellant, knocking his glasses
off, and was trying to pull him out of his truck window when the appellant fired
his gun. But other evidence, including other testimony from the appellant
himself, refuted the evidence of Harry’s violent reputation and was not
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consistent with self-defense. The testimony that Harry was shot from at least 24
to 30 inches away indicates that he was not locked in combat with the appellant,
there is no evidence that Harry was armed, his striking of the appellant did not
cause any visible injury, and the appellant admitted that he could have driven
away. See Payne v. State, 289 Ga. 691, 692 (1) (b) (715 SE2d 104) (2011).
Moreover, the appellant’s subsequent actions and words arguably did not
comport with self-defense. “As we have explained many times before, conflicts
in the evidence, questions about the credibility of witnesses, and questions about
the existence of justification are for the jury to resolve.” Grimes v. State, 293
Ga. 559, 560 (1) (748 SE2d 441) (2013). The jury is free to reject any evidence
in support of a justification defense and to accept the evidence that the shooting
was not done in self-defense. See Cotton v. State, 297 Ga. 257, 258 (1) (773
SE2d 242) (2015). Viewing the evidence in the light most favorable to the
verdict, as we must, we conclude that the evidence was sufficient to authorize
a rational trier of fact to find beyond a reasonable doubt that the appellant was
guilty of murder. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt
2781, 61 LE2d 560) (1979).
5
2. Before trial, the appellant filed a motion under OCGA § 16-3-24.2 for
immunity from prosecution. Following a hearing, the trial court denied the
motion, and the appellant now claims that the trial court erred when it
determined that his justification defense was not strong enough to afford him
immunity from prosecution. “In reviewing the denial of [a] motion for pretrial
immunity, we must view the evidence in the light most favorable to the trial
court’s ruling and accept the trial court’s findings of fact and credibility
determinations if there is any evidence to support them.” Sifuentes v. State, 293
Ga. 441, 444 (2) (746 SE2d 127) (2013). To avoid trial based on a justification
defense presented at an immunity hearing, “a defendant bears the burden of
showing that he is entitled to immunity under OCGA § 16-3-24.2 by a
preponderance of the evidence.” Bunn v. State, 284 Ga. 410, 413 (3) (667 SE2d
605) (2008). See also Cotton, 297 Ga. at 258 (2).
At the hearing on the appellant’s motion, his lawyer presented the
testimony of several witnesses regarding Harry’s reputation for violence and a
prior threat against the appellant, and those witnesses were cross-examined. The
lawyer then stated in his place what he expected that the testimony of the
appellant and Pam would show about the confrontation between Harry and the
6
appellant. The prosecuting attorney explained what she anticipated would be
shown by the State’s evidence, but she did not call any witnesses, and she
objected that it would be inappropriate for the trial court to rule that the
appellant has immunity from prosecution based on the statement of his lawyer
without any evidence about the confrontation.
“Attorneys are officers of the court and a statement to the court in their
place is prima facie true and needs no further verification unless the same is
required by the court or the opposite party.” Sherman v. City of Atlanta, 293
Ga. 169, 173-174 (4) (744 SE2d 689) (2013) (citations and punctuation omitted;
emphasis in original). The statements-in-place by the appellant’s lawyer were
not a proper substitute for evidence at the hearing on the motion for immunity
because the State did not accept those proffers but rather insisted that the
appellant prove his immunity with traditional evidence. Id. at 173 (4). Cf. State
v. Cooper, 324 Ga. App. 32 (749 SE2d 35) (2013) (affirming the grant of a
motion for immunity from prosecution and denying the State’s motion to reopen
the evidence, where the State never presented any evidence, made any proffer
as to the omitted evidence, or cross-examined any of the defendant’s witnesses
at the hearing). Assuming that the statements-in-place of the appellant’s lawyer
7
nevertheless could be considered, there would be no reason why the trial court
could not also consider the prosecuting attorney’s statements about the
confrontation between Harry and the appellant. And because the statements of
the appellant’s lawyer and the prosecuting attorney were consistent with the
evidence subsequently presented at trial — which, as discussed in Division 1,
supra, was sufficient for the jury to find beyond a reasonable doubt that the
appellant did not act in self-defense — the trial court certainly was authorized
to find that the appellant failed to show self-defense by a preponderance of the
evidence. For the same reason, we reject the appellant’s further argument that,
under Hipp v. State, 293 Ga. 415 (746 SE2d 95) (2013), the trial court should
have exercised its inherent authority to grant his renewed motion to dismiss at
trial and on motion for new trial after the trial court had the benefit of hearing
the appellant’s own testimony. In short, the trial court was authorized to find
that the appellant failed — before, during, and after trial — to meet his burden
of showing that he was entitled to immunity under OCGA § 16-3-24.2.
3. The appellant contends that the trial court erred when it failed to excuse
a certain prospective juror for cause because of his law enforcement
background, his friendship with two potential witnesses for the State, his
8
acknowledged bias in favor of the prosecution, and his admission that, for him,
the appellant would have the burden of proving self-defense. At trial, however,
the appellant’s lawyer asked the trial court to remove this prospective juror only
because of his law enforcement background and his view of the burden of
proving self-defense. So the issues of the prospective juror’s friendship with
potential witnesses and his general bias in favor of the prosecution are waived
because the appellant’s motion to excuse made no mention of those issues.2 See
Rice v. State, 292 Ga. 191, 197 (3) (f) (733 SE2d 755) (2012). See also Turner
v. State, 293 Ga. App. 869, 870-871 (2) (668 SE2d 268) (2008) (because the
objection raised in a motion to strike a juror for cause was different from the
argument on appeal, there was nothing to review).
The objections to this prospective juror that were preserved for review did
not require that he be excused for cause. Although he had served as a
conservation ranger with the Georgia Department of Natural Resources, he had
2
As to the merits of these waived issues, however, we note that the prospective juror
said that his friendship with the sheriff and a deputy who were potential witnesses would
make the job of the appellant’s lawyer “a little bit harder” and that the juror would lean to
the law enforcement side although he had no great prejudice and thought defense lawyers do
a great job. Such beliefs do not necessarily require that a prospective juror be excused for
cause. See Ellis v. State, 292 Ga. 276, 286 (4) (d) (736 SE2d 412) (2013); Roberts v. State,
276 Ga. 258, 259 (2) (577 SE2d 580) (2003).
9
been retired for 25 years at the time of trial. See Ellis v. State, 292 Ga. 276, 284-
285 (4) (c) (736 SE2d 412) (2013); Chavarria v. State, 248 Ga. App. 398, 398-
399 (1) (a) (546 SE2d 811) (2001). And while one of his responses during voir
dire showed a misunderstanding of the law when he indicated that the defendant
would bear the burden of proving self-defense, the prospective juror later
testified unequivocally that he could follow the court’s instructions on the law
“as it relates to the burden of proof, who has the burden of proving what.” See
Nelson v. State, 247 Ga. 172, 176 (8) (274 SE2d 317) (1981). See also Roberts
v. State, 276 Ga. 258, 259-260 (2) (577 SE2d 580) (2003); Chambers v. State,
252 Ga. App. 190, 191-192 (2) (556 SE2d 444) (2001). Cf. Carter v. State, 326
Ga. App. 144, 151 (4) (a) (756 SE2d 232) (2014) (where the juror never gave
an affirmative response that he would be able to follow the court’s instructions
that the defendant had no burden to put forth proof of his innocence); McGuire
v. State, 287 Ga. App. 764, 765 (1) (653 SE2d 101) (2007) (same). We
conclude, therefore, that the trial court did not abuse its discretion when it
declined to excuse this prospective juror for cause.
4. The appellant claims that the trial court erred when it admitted evidence
pursuant to OCGA § 24-4-404 (b) relating to four “other acts” allegedly
10
committed by the appellant. Although the State argues that the appellant did not
object to the testimony about those acts, the trial court ruled definitively at a
pretrial hearing that evidence of the four acts would be admissible. “Once the
court makes a definitive ruling on the record admitting or excluding any
evidence, either at or before trial, a party need not renew an objection or offer
of proof to preserve such claim of error for appeal.” OCGA § 24-1-103 (a). See
also United States v. Isley, 369 Fed. Appx. 80, 92 (II) (C) (2) (11th Cir. 2010);
Paul S. Milich, Ga. Rules of Evidence § 3:6 (database updated October 2015).
Cf. Whitehead v. State, 287 Ga. 242 (695 SE2d 255) (2010) (decided prior to
the effective date of the new Evidence Code, which includes OCGA § 24-1-103
(a)). Consequently, we now turn to the merits of this claim.
The four “other acts” at issue are an alleged cutting of Pam’s car tire by
the appellant at her residence, his display of a gun and threat to use it on Harry,
his following Pam to the courthouse and surveilling her car overnight while she
was with Harry, and his cutting her tire when her car was parked at the
courthouse. The trial court admitted evidence of these acts as relevant to motive,
preparation, and plan, finding that their probative value was not substantially
outweighed by their potential for undue prejudice. In order to admit “other acts”
11
evidence for such purposes, a trial court must find that “(1) the evidence is
relevant to an issue in the case other than the defendant’s character, (2) the
probative value is not substantially outweighed by undue prejudice, and (3)
there is sufficient proof for a jury to find by a preponderance of the evidence
that the defendant committed the prior act.” Brannon v. State, ___ Ga. ___, ___
(4) (Case Number S15A1724, decided March 7, 2016) (citation omitted).
The trial court here was authorized to find that the other acts were relevant
to motive,3 which is “the reason that nudges the will and prods the mind to
indulge the criminal intent.” Brooks v. State, ___ Ga. ___, ___ (2) (Case
Number S15A1480, decided March 7, 2016). The appellant argues that the tire
cutting and surveillance incidents show only that he was hurt by Pam’s decision
to divorce him and that he was gathering evidence for the pending divorce
action. That certainly is one way in which the jury might have seen this
evidence. But the evidence also could readily be understood as demonstrating
the appellant’s desire to take revenge and to provoke confrontation in response
to his wife’s affair with the victim. See Bradshaw v. State, 296 Ga. 650, 657 (3)
3
Because the evidence was admissible as to motive, we need not determine whether
it was also admissible to show preparation and plan. See Brannon, ___ Ga. at ___, n. 3 (4);
Bradshaw, 296 Ga. 650, 657, n. 5 (3) (769 SE2d 892) (2015).
12
(769 SE2d 892) (2015) (“other acts” evidence showed the defendant’s desire to
use violence in response to cheating in a drug deal). Which is the better view of
the evidence was for the jury to decide.
As this evidence of the four other acts was needed to counter the
appellant’s testimony at trial and the theory of self-defense on which he relied,
the trial court did not err when it found that the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice to the
appellant. See Brannon, supra at ___ (4). The appellant asserts that the State was
using the evidence for improper character purposes by trying to imply that he
was disturbed enough to commit murder. But the other acts at issue here are
probative precisely because they tend to show just how disturbed the appellant
was as a result of the affair, which establishes his motive to kill Harry.
Finally, the record contains sufficient proof that the appellant committed
three of the four prior acts at issue, as he admitted as much to others and later
admitted the three acts during his testimony at trial. The other prior act was the
tire cutting incident at Pam’s residence. Assuming that the trial court improperly
admitted evidence of that act due to a failure to prove the appellant’s
involvement, the error was harmless because the jury properly heard evidence
13
of the other tire cutting incident, which was highly probative, having been
confirmed by the appellant and having occurred during the surveillance incident,
closer in time to the homicide. See Gomillion v. State, ___ Ga. ___, ___ (2)
(Case Number S15A1617, decided February 22, 2016).
5. The appellant further contends that two of the trial court’s charges to
the jury were improper. First, there is not even slight evidence, the appellant
claims, to support the charge that “[a] person is not justified in using force if that
person initially provokes the use of force against himself with the intent to use
such force as an excuse to inflict bodily harm upon the assailant.” See OCGA
§ 16-3-21 (b) (3). The evidence, however, showed that the appellant, possessing
a firearm and believing that Harry did not want to speak with him, stopped his
truck at Pam’s residence, and a reasonable jury could infer that he did so to
provoke a confrontation with Harry about the affair. The jury reasonably could
have viewed the appellant’s actions as being intended to provoke the use of
force. See Johnson v. State, 229 Ga. App. 586, 588 (5) (494 SE2d 382) (1997).
See also Williams v. State, 249 Ga. 822, 824-825 (2) (295 SE2d 293) (1982);
Jackson v. State, 239 Ga. 40, 41 (3) (235 SE2d 477) (1977). Moreover, even if
there were no evidence or contention that the appellant initially provoked
14
Harry’s use of force with the intent to use that force as an excuse to shoot him,
“inclusion of the instruction on that principle in the context of the entirety of the
charge on justification did not mislead the jury or violate [the appellant’s] due
process rights.” Lowe v. State, 267 Ga. 410, 413 (4) (478 SE2d 762) (1996)
(citation and punctuation omitted) (the charge did not authorize the jury to
convict the defendant of the commission of a crime in a manner not charged in
the indictment, but rather addressed the inapplicability of justification as a
defense to the crimes charged).
The second jury charge about which the appellant complains reads as
follows: “However, the State is not required to prove the guilt of the accused
beyond all doubt or to a mathematical certainty.” This instruction is part of the
pattern charge on reasonable doubt. Suggested Pattern Jury Instructions, Vol.
II: Criminal Cases, § 1.20.10 (4th ed. 2007, updated through January 2016). It
specifically has been approved by our Court of Appeals. See Boyd v. State, 230
Ga. App. 314, 315-316 (3) (497 SE2d 3) (1998); Pilcher v. State, 214 Ga. App.
395, 396-397 (1) (448 SE2d 61) (1994) (reviewing relevant United States
Supreme Court precedent); Weldon v. State, 202 Ga. App. 51, 52 (3) (413 SE2d
229) (1991); Sell v. State, 156 Ga. App. 333, 335 (3) (274 SE2d 723) (1980).
15
Cf. Coleman v. State, 271 Ga. 800, 805 (8) (523 SE2d 852) (1999)
(disapproving a different instruction on the definition of reasonable doubt,
saying that “there are few, if any, circumstances which would justify a trial
court’s failure to use the suggested pattern criminal charges” on that topic). And
the appellant has failed to cite any applicable authority in support of this claim.
See Boyd, 230 Ga. App. at 315 (3). The fact that the sentence of which the
appellant complains was introduced by the word “however” does not change the
meaning of “all doubt” or “mathematical certainty.” See McTyier v. State, 91
Ga. 254, 255 (10) (18 S.E. 140) (1892). Even assuming that the use of those
terms amounted to error, we will not reverse the judgment on that basis because
the charge as a whole properly informed the jury of the State’s burden of proof
and the meaning of reasonable doubt. See Whitt v. State, 257 Ga. 8, 9 (3) (354
SE2d 116) (1987); Jackson v. State, 214 Ga. App. 683, 683-684 (1) (448 SE2d
763) (1994).
Judgment affirmed. All the Justices concur.
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