Terrance Scriven v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
February 22, 2021
In the Court of Appeals of Georgia
A20A1941. SCRIVEN v. THE STATE.
MERCIER, Judge.
A jury found Terrance Scriven guilty of aggravated assault, possession of a
firearm during the commission of a crime, and possession of a firearm by a convicted
felon, and he was subsequently convicted. Following his convictions, Scriven filed
a motion for new trial, which the trial court denied. He appeals, arguing that the trial
court erred in charging the jury and by admitting his statement into evidence. He also
claims that he received ineffective assistance of counsel at trial. Finding no basis for
reversal, we affirm.
Viewed in the light most favorable to the verdicts, the evidence presented at
trial showed the following. See Morris v. State, 308 Ga. 520 (1) (842 SE2d 45)
(2020). On October 3, 2012, the victim was drinking outside a package store with a
group that included Scriven. The individuals in the group were making fun of each
other, and the victim told the group, “you guys, been in and out . . . of prison . . . you
may have a boyfriend up in there,” and then called the group, including Scriven, a
homophobic slur. Scriven walked to his vehicle and drove away.
After approximately 15 minutes, Scriven returned to the area and asked where
the victim was, using a racist slur. The victim approached Scriven and said he was
“right here.” Scriven then pulled out a gun and demanded that the victim apologize.
The victim “didn’t want to say anything else to provoke him to pull the trigger” so he
refused, “turned around and walked off[.]” As the victim was walking away, Scriven
shot him in the left arm. The victim ran inside the store, and as he was running he
heard a second shot, but he was not hit by the second bullet.
The victim was transported to the hospital, where he told the investigating
deputy that Scriven had shot him. No weapons were recovered from the victim’s
person, and the victim testified that he did not have a weapon on his person at the
time.
The deputy interviewed Scriven, and a video recording of the interview was
played at trial. During the interview, Scriven stated that on the night in question, the
victim and the group were sitting on a truck joking around when the victim called
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everyone in the group homosexuals. The victim pulled out a knife, threatened to rape
him, and pushed Scriven off of the truck. Scriven then walked away to get a gun he
had observed a stranger put under a truck tire. Armed with the gun, Scriven walked
back to the victim and told him he would give the victim until the count of three to
apologize. The victim refused and began to run away, while still holding the knife.
Scriven counted to two and fired the gun towards the victim twice, hitting the victim
once.
1. Scriven claims that the trial court erred by refusing to give his requested
justification jury instructions. “To authorize a requested jury instruction, there need
only be slight evidence supporting the theory of the charge. Whether the evidence
presented is sufficient to authorize the giving of a charge is a question of law.”
Reddick v. State, 301 Ga. 90, 90 (1) (799 SE2d 754) (2017) (citation and punctuation
omitted.)
Scriven contends that justification was his sole defense and the trial court erred
by refusing to give the charge. However, “[a] charge on the defendant’s sole defense
is mandatory only if there is some evidence to support the charge. When a defendant
raises the affirmative defense of justification, he must present evidence that he was
justified in using deadly force. The burden then shifts to the State to disprove that
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defense beyond a reasonable doubt.” Porter v. State, 272 Ga. 533, 534 (3) (531 SE2d
97) (2000) (citations and punctuation omitted). As with the defendant in Porter,
Scriven offered no evidence at trial. He relied solely on his custodial statement to
carry his burden of production.
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 defend himself or herself or a third person against
such other’s imminent use of unlawful force; however, except as
provided in Code Section 16-3-23, a person is justified in using force
which is intended or likely to cause death or great bodily harm only if
he or she reasonably believes that such force is necessary to prevent
death or great bodily injury to himself or herself or a third person or to
prevent the commission of a forcible felony.
OCGA § 16-3-21 (a) (emphasis supplied).
In Porter, the victim and the defendant engaged in a physical fight in the
backseat of a car, the victim attempted to run away from the scene and the defendant
shot the fleeing unarmed victim. Supra at 533. The Porter defendant said in his
statement that he was scared and that he believed that the victim had other guns. Id.
at 534. The Supreme Court found that it was not error for the trial court to refuse to
provide the self defense jury charge because “any imminent threat of harm which may
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have occurred in the back seat of the vehicle had ended when both men emerged.” Id.
at 535 (3).
Similarly, while there was some evidence in this case that the victim had a
knife and had made threatening comments to Scriven, Scriven admittedly left and
returned to the scene armed with a gun, sought out the victim, demanded an apology,
and counted to two before shooting the victim as the victim ran away. There was no
imminent threat and thus no evidence that Scriven’s actions were justified. The trial
court did not err in refusing to charge the jury on justification. See id.; Carter v. State,
285 Ga. 565, 565-567 (2) (678 SE2d 909) (2009) (following a physical altercation
between the victim and the defendant, victim was shot by defendant as he was
running away; the jury charge of justification was not warranted even though the
victim had previously threatened a third party and may have had a knife).
2. Scriven argues that the jury charges regarding circumstantial evidence were
inconsistent and given in error. “A jury instruction must be adjusted to the evidence
and embody a correct, applicable, and complete statement of law.” Morris, supra at
529 (4) (citation and punctuation omitted).
In reviewing a challenge to the trial court’s jury charge, we view the
charge as a whole to determine whether that court fully and fairly
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instructed the jury on the law of the case. If the jury is charged in such
a manner as to work no prejudice to the defendant, then this Court will
not consider a challenge to the wording of isolated segments.
Watkins v. State, 265 Ga. App. 54, 54 (592 SE2d 868) (2004) (citation and
punctuation omitted).
The trial court’s first charge on circumstantial evidence followed the Georgia
pattern jury charges. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases
(2020), § 1.3.20. As to the second circumstantial evidence charge, the trial court
stated that:
I charge you that aggravated assault and possession of a firearm during
the commission of a crime may be shown by circumstantial evidence. In
order to support a conviction, the evidence need not exclude every
inference or hypothesis except the guilt of the accused, but only
reasonable inferences and hypotheses, so as to justify the inference
beyond a reasonable doubt of guilt.
This was not an incorrect statement of law. See Jones v. State, 299 Ga. 377,
379-380 (1) (b) (788 SE2d 477) (2016); Smith v. State, 309 Ga. App. 466, 468 (710
SE2d 654) (2011); OCGA § 24-14-6. While the verbiage in the second sentence may
not be as clear as desired, jury charges must be read as a whole, and the jury was
properly instructed as to how to interpret circumstantial evidence. Moreover, the
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primary evidence against Scriven (the victim’s testimony and Scriven’s statement)
was direct. See Stubbs v. State, 265 Ga. 883, 884-885 (2) (463 SE2d 686) (1995)
(“[t]raditionally, the term ‘direct evidence’ pertains to the testimony of witnesses”).
Scriven has offered no evidence that the jury was confused or misled by the
circumstantial evidence instructions. As such, this enumeration of error fails. See
generally Morris, supra at 530 (4); Watkins v. State, 265 Ga. App. 54, 57 (4) (592
SE2d 868) (2004) (“Even if an instruction is not as clear and precise as desired, it
provides no basis for reversal absent danger of prejudice to the defendant”) (citation
and punctuation omitted).
3. Scriven claims that the trial court erred by admitting his statement into
evidence because the trial court failed to determine whether he was mentally
competent at the time of his statement. On review of the admissibility of a defendant’s
statement, the finding of a trial judge will not be overturned unless clearly erroneous.
See Nelms v. State, 255 Ga. 473, 474 (1) (340 SE2d 1) (1986).
At the Jackson-Denno hearing, the deputy testified that he interviewed Scriven
after advising him of his Miranda rights and that Scriven did not appear to be under
the influence of alcohol or drugs. He also testified that he did not threaten or coerce
Scriven, or make any promises in order to obtain a statement. A video recording of
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the interview was played. Scriven testified at the hearing that at the time he gave his
statement he was “tired” and that he had been woken up at five o’clock in the
morning. Scriven stated: “I just was ready to get it over with, but I told him the truth
about the incident.” During the statement, Scriven stated that he had been diagnosed
as bipolar and a paranoid schizophrenic, but that he was on his medication.
“A person who is mentally ill can be competent to make a voluntary
confession.” Johnson v. State, 256 Ga. 259, 260 (4) (347 SE2d 584) (1986). “Further,
a mere showing that a person who confessed to a crime may have suffered from some
mental disability is not a sufficient basis on which to exclude the statement.” Brooks
v. State, 271 Ga. 698, 699 (2) (b) (523 SE2d 866) (1999) (citation and punctuation
omitted). Here, the deputy stated that he did not coerce Scriven or offer any
inducements, the video of the statement was played and Scriven himself did not claim
to be too mentally ill to give a voluntary confession. Instead he claimed that he did
not understand his right to have a lawyer present because he “was so tired [he] was
ready to get back to the bed.” Considering the testimony of the deputy and Scriven,
and following our review of the videotaped statement, we cannot find that the trial
court clearly erred in concluding that Scriven was mentally competent when he
incriminated himself. Therefore, admission of Scriven’s statement was a proper
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evidentiary ruling. See generally Nelms, supra at 474 (1); Fuss v. State, 271 Ga. 319,
320-321 (2) (519 SE2d 446) (1999).
4. Scriven claims that he received ineffective assistance of counsel. In order to
succeed in his ineffective assistance of counsel claim, Scriven
has the burden of proving both that the performance of his lawyer was
professionally deficient and that he was prejudiced as a result. To prove
deficient performance, [Scriven] must show that his trial counsel acted
or failed to act in an objectively unreasonable way, considering all of the
circumstances and in light of prevailing professional norms. To prove
resulting prejudice, [Scriven] must show a reasonable probability that,
but for counsel’s deficiency, the result of the trial would have been
different. In examining an ineffectiveness claim, a court need not
address both components of the inquiry if the defendant makes an
insufficient showing on one.
Morris, supra at 530-531 (6) (citations and punctuation omitted).
(a) Scriven claims that his trial counsel was ineffective for failing to object to
the deputy’s opinion testimony about his statement. At both the Jackson-Denno
hearing and the trial, the deputy who interviewed Scriven testified that based on his
experience as a law enforcement officer, Scriven gave his statement freely and
voluntarily.
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The deputy also testified that he fully advised Scriven of his Miranda rights
and that Scriven indicated he understood them, that Scriven did not request a lawyer
or that questioning be stopped, and that no offer of benefit or threats were made to
induce the statement. See Owens v. State, 161 Ga. App. 184 (288 SE2d 262) (1982)
(admission of officer’s testimony at trial that defendant’s pretrial statement was given
freely and voluntarily was not done in error where officer testified to the
circumstances giving rise to the statement.) Further, the trial court instructed the jury
that they were to determine for themselves whether Scriven’s statement was freely
and voluntarily given. As in Owens, the deputy testified to the circumstances which
gave rise to the statement and since the facts were also presented to the members of
the jury, they were able to draw their own conclusions. See id. As such, the testimony
was not improper opinion testimony, and Scriven’s trial counsel was not ineffective
for failing to make a meritless objection. See Owens, supra; Wesley v. State, 286 Ga.
355, 356 (3) (a) (689 SE2d 280) (2010) (“failure to make a meritless objection cannot
be evidence of ineffective assistance”).
(b) Scriven contends that trial counsel was ineffective for not requesting a
limiting instruction regarding Scriven’s statement during the jury charge. Prior to
Scriven’s statement being played at trial, the trial court gave a limiting instruction
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regarding other crimes that Scriven spoke about during his statement. However,
Scriven contends that trial counsel should have requested that the limiting instruction
be repeated during the jury charge.
During the charge conference, the trial court stated that it was not going to give
a limiting instruction regarding Scriven’s statement. Scriven’s counsel had initially
requested the charge and then stated that he would like to withdraw the request
because he did not “want the jury to think that the State has proved any other
wrongs[.]” Scriven has failed to meet his burden to show that trial counsel’s decision
was not a reasonable trial strategy or that such a request would have affected the
outcome of the trial. See Phillips v. State, 285 Ga. 213, 220 (5) (c) (675 SE2d 1)
(2009) (“Where trial counsel testifies that he chose not to seek a limiting instruction
because he did not wish to draw attention to the prior convictions, the omission was
trial strategy and not evidence of ineffective assistance of counsel.”).
(c) Scriven contends that his trial counsel was ineffective for failing to request
a limiting instruction after the victim testified that the members of the group drinking
outside of the package store, including Scriven, had previously been imprisoned.
Scriven’s trial counsel testified that he did not object to the victim’s statement
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because he did not want to draw further attention to it, and the statement was part of
the res gestae.
“It is well established that a witness’ passing reference to a defendant’s past
criminal record . . . does not improperly place his character in issue.” Brown v. State,
307 Ga. 24, 33 (6) (a) (834 SE2d 40) (2019) (citation and punctuation omitted). The
passing reference by the victim that all of the members of the group had been in and
out of prison did not amount to improper character evidence, and trial counsel’s
failure to request a limiting instruction does not amount to ineffective assistance of
counsel. See generally id.
(d) Scriven argues that trial counsel was ineffective for failing to “adequately”
research and prepare a mental health defense, particularly with respect to the
admission of his statement to the police. Setting aside whether trial counsel should
have requested a psychological evaluation of Scriven’s mental state at the time of the
statement, Scriven has failed to show that he was prejudiced in any way by the failure
of his counsel to do so. See Valentine v. State, 293 Ga. 533, 537 (3) (748 SE2d 437)
(2013). To establish prejudice, Scriven “must offer more than speculation.” Id.
(citation and punctuation omitted). But he has pointed to no expert testimony or other
evidence showing what an evaluation would have revealed, or whether it would have
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been favorable to the defense, had counsel requested one. See id. Scriven has not
shown a reasonable probability that the result of his trial would have been any
different if his counsel had pursued a mental health defense. See id.
(e) Scriven claims that he was not properly advised by his counsel regarding
the consequences of being sentenced as a recidivist when he received the State’s plea
offer. Prior to the trial, the State filed notice to seek recidivist punishment. The day
before trial, the State made a plea offer for 20 years with the first 15 years to serve in
prison and the remaining 5 to serve on probation. The details of the plea offer were
read into the trial record. Specifically, it was discussed that if Scriven did not accept
the offer he was an “(a) and (c) recidivist, so he is looking at 30 years in prison day-
to-day.” Scriven’s trial counsel stated that he had an opportunity to discuss the offer
with Scriven and that Scriven still wished to proceed with trial.
At the hearing for the motion for new trial, Scriven’s trial counsel testified that
he did not “believe” that he explained the consequences of being sentenced as a
recdivist to Scriven prior to trial, but that he was “not absolutely sure[.]” However,
he normally would have gone over recidivist sentencing with his clients. Scriven
testified at the hearing that his trial counsel did not explain recidivist sentencing and
its impact on parole eligibility, and he claimed that if his counsel had explained it to
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him, he would have accepted the plea offer. According to Scriven: “I never would
have went to trial knowing that my punishment would have been without the
possibility of parole.”
Scriven’s trial occurred in 2013. Under Georgia precedent, prior to 2015,
“counsel was not required to advise a defendant of parole eligibility with regard to
a plea agreement.” Swann v. State, __ Ga. ___, (2) (b) (850 SE2d 137) (S20A0767)
(decided October 19, 2020). Given the clear precedent at the time, “it was not
professionally deficient for counsel to either fail to predict the future or to seek to
create new law.” Id. “As such, [Scriven]’s trial counsel cannot be held
constitutionally ineffective for failing to do something he was not required to do at
the time.” Id.
(f) Finally, the cumulative prejudice from any assumed deficiencies is
insufficient to show a reasonable probability that the results of the proceedings would
have been different in the absence of the alleged deficiencies. The evidence against
Scriven was considerable with respect to each of his convictions and included the
victim’s account, as well as Scriven’s own statement. See generally Brown, supra at
36 (6) (i).
Judgment affirmed. Miller, P. J., and Senior Judge Herbert E. Phipps., concur.
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