author: McFADDEN, Judge.

text:
    A16A0727.
    LLOYD v. THE STATE.
    (792 SE2d 445)
   McFADDEN, Judge.

After a jury trial, Marcus Lloyd was convicted of aggravated assault and possession of a firearm during the commission of a felony. Just after he was sentenced, Lloyd learned that a juror had engaged in misconduct during jury deliberations. That juror had researched certain legal definitions on the Internet and, while out on a lunch break, had asked a police officer to explain the law of “stand your ground.” Lloyd filed an emergency motion for new trial, and once the trial court denied it, he filed this appeal. We conclude that the state has failed to overcome beyond a reasonable doubt the presumption of prejudice that arises from such juror misconduct in criminal cases. We therefore reverse Lloyd’s convictions.

1. Facts.

Lloyd was charged with malice murder, two counts of felony murder, two counts of aggravated assault, and five counts of possession of a firearm during the commission of a felony. Voir dire began on a Monday morning and continued after a lunch break. Before breaking for lunch, the trial court instructed the prospective jurors to refrain from independent research:

While you’re at lunch, please do not look up anything about this case or do any research. . . . Please do not look up anything about the case on the Internet or through the cell phones or anything like that because that would be improper. What you learn about this case you should learn here in this courtroom and nowhere else because the laws are designed to protect the accused, and only admissible evidence is allowed to be presented to jurors during the trial, and we try to preserve that. So please do not anytime during the trial look up anything about the case or any law. I’ll tell you the law, the lawyers will present the facts, and you put the two together to try to try the case, to decide the case that’s given to you. So please observe that.

Before recessing that Monday afternoon, the court again instructed the prospective jurors not to research the law or any other matters concerning the case.

By 10:00 on Tuesday morning, the jury had been selected and seated. The court gave the jury preliminary instructions, including that they should not discuss the case with anyone, conduct any independent research about the case, search the Internet to help them decide the case, or conduct any sort of online legal research.

The state began presenting its case shortly before 10:30 that morning. The evidence showed that an officer who was driving by saw the victim on the ground, Lloyd running toward the victim, and then Lloyd yanking shoes off the victim’s feet. He thought it looked suspicious so he stopped his car and got out. After calling an ambulance for the victim, the officer spoke with Lloyd, who said that he had placed an ad on Craigslist to sell some sneakers and had agreed to meet the victim at a gas station to make the sale. Lloyd told the officer that he had allowed the victim to try on the shoes and that once the victim had both shoes on, the victim pulled out what Lloyd believed to be a knife, tried to cut Lloyd across his stomach, and took off running. Lloyd told the officer that when the victim swiped at him, he was afraid. He shot at the victim once in the parking lot, chased him, and caught him. The victim swiped at Lloyd again and began running away, when Lloyd shot at him again, trying to get him to stop. The entire incident lasted six to eight seconds. No knife was found. A medical examiner with the Georgia Bureau of Investigation testified that the victim died from two gunshot wounds, one in the back and one in the buttock. The state concluded its case the next day, Wednesday

Lloyd testified in his own defense. He testified that he shot the first time in fear and the subsequent times, as the victim was fleeing, to scare the victim into stopping. But Lloyd also testified that he was still in fear while the victim was fleeing because he did not “know who he’s with and what he’s about to do nor his intent at that point.” The defense rested on Wednesday, and the court charged the jury. The court included the following charge on self-defense:

In applying the law of self-defense, a defendant is justified to use force against another person in defense of self or others and the standard is whether circumstances were such that they would excite not merely the fears of the defendant, but the fears of a reasonable person.
For the use of force to be justified under the law, the accused must truly have acted under the influence of these fears and not in a spirit of revenge.
What the facts are in this case is a matter solely for you, the jury, to determine given all the circumstances involved in this case.
One who is not the aggressor is not required to retreat before being justified in using such force as is necessary for personal defense or in using force that’s likely to cause death or great bodily harm if one reasonably believes that such force is necessary to prevent death or great bodily injury to himself or to prevent the commission of a forcible felony
The use of excessive or unlawful force while acting in self-defense is not justifiable and the defendant’s conduct in this case would not be justified if you find that the force used exceeded that which the defendant reasonably believed was necessary to defend against the victim’s use of unlawful force, if any.

Less than ten minutes after beginning deliberations late in the day, the jury returned to the courtroom to ask the court for written “definitions of the law.” The court instructed the jurors that he did not have the charges in written form that he could give to them. The jury decided to recess for the day

That evening, a juror whose initials are R. R. researched the definitions of malice murder and felony murder on the Internet. At the hearing on Lloyd’s emergency motion for new trial, Juror R. R. testified that the definitions he found were the same as the definitions the state had shown on a projection screen during closing argument.

When the jury reconvened Thursday morning, Juror R. R. attempted to speak with the other jurors about his research, but none of the other jurors wanted to discuss malice murder or felony murder because only one juror, Juror R. R. himself, voted to convict on those charges. Within the first two hours of reconvening, the jury sent out a note asking the following questions of the court:

Please provide definition of “stand your ground.”
When is it not allowed?
What is not considered “stand your ground”?
Is pursuit included?

In response, the trial court brought the jury into the courtroom, where he instructed the jury that Georgia does not have the legal concept “stand your ground.” The court explained:

Mr. Foreman, I have your note. Thank you. We’ll be glad to go over that with you. Your first question, and I’ll read it and then I’ll try to answer it is: Please provide the definition of “stand your ground.”
Well, “stand your ground” is a synonym not used under Georgia law. It has, you know, it’s justification, defense of justification, is the way it’s referred to which is just another way of saying the same things. And I have, I’ll go over that again with you. When it’s not allowed that will be given to you, too. And what is not considered “stand your ground.”
I think I’ll just re-charge you in that whole theory, and that will give you a better understanding, and then you have to make the decision. So you understand that?
THE FOREPERSON: Yes, sir.
THE COURT: Now I’ll give you that charge. When I finish, see if that answers your questions, okay?
THE FOREPERSON: Thank you, sir.
THE COURT: And your last question: Is pursuit included. That will be for you, you know, that will be explained in the charge, too, I think. It’s quite common for this to have to happen, so please just bear with us. Here’s the charge:
An affirmative defense is a defense that admits doing the act charged, but it seeks to justify, excuse, or mitigate it. Once an affirmative defense is raised, the burden is upon the state to prove — disprove it beyond a reasonable doubt. The fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct.
A defense of justification can be claimed when a person’s conduct is justified as follows: Aperson is justified in threatening or using force against another person when and to the extent that he reasonably believes that such threat of force is necessary to defend himself against the other’s imminent use of unlawful force.
A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself or to prevent the commission of a forceful felony upon him and the state has the burden of proof beyond a reasonable doubt that the defendant was not justified.
A forcible felony, as I mentioned, is a felony that involves the use of or threat of physical force or violence against any person. In applying the law of self-defense, a defendant is justified in using force against another person and the standard is whether the circumstances were such that they would excite not merely the fears of the defendant but the fears of a reasonable person. For the use of force to be justified under the law, the accused must truly have acted under the influence of these fears and not in a spirit of revenge. What are the facts in this case is a matter solely for you, the jury, to determine given all the circumstances of the case.
One who is not the aggressor is not required to retreat but before being justified and using such force as is necessary for personal defense or using force that is likely to cause death or great bodily harm if one reasonably believes that such force is necessary to prevent death or great bodily harm to oneself or to prevent the commission of a forcible felony
The use of excessive force or unlawful force while acting in self-defense is not justifiable, and the defendant’s conduct in this case would not be justified if you find that the force used exceeded that which the defendant reasonably believed was necessary to defend against the alleged victim’s use of unlawful force, if any
And I think that covers the entire section. Let me see — yeah, that covers the entire law as it applies in Georgia. Does that kind of answer your question?
THE FOREPERSON: Yes, sir.
THE COURT: If you have any, need it gone over again, just let me know. I don’t mind going over it any time.
THE FOREPERSON: That answers our question. . . .

(Emphasis supplied.)

While the jury was on its lunch break, Juror R. R. went to a grocery store. He testified that he saw a police officer in the store, approached the officer, and asked him to explain the law of “stand your ground.” He said that he saw it as an opportunity to have the concept explained in laymen’s terms because the trial court’s response to the jury’s question did not explain it. Juror R. R. did not remember exactly what the police officer told him, but, according to Juror R. R., it was something like:

You can only go to a certain limit. You have to have fear. . . . [Y]ou cannot be angry and recover things. You have to feel threatened. . . . [T]here’s a point where your life is threatened and you can “stand your ground.” But then once that element of fear goes away,... you cannot go beyond that point and . . . shoot somebody ... or use any deadly force . . . [bjecause you’re not scared.

The officer also told Juror R. R. that “you cannot pursue anyone.” When Juror R. R. returned from lunch, he related to some of the other jurors that he had spoken with a police officer about “stand your ground” and asked if they could discuss the issue. According to Juror R. R., the jury “never really got into that either [because ejveryone’s minds were pretty much made up.”

That afternoon, the jury informed the court that it was unable to come to a unanimous verdict on any count. The court instructed the jury to continue deliberating. About two hours later, the court recessed for the day.

Juror R. R. decided that he would create a presentation to illustrate his position to the other jurors. A flight instructor, he wanted to create a diagram that would show the relevant factors in Lloyd’s case in the same manner that he would use a diagram to show the relevant factors in an airplane crash. He wanted to include “stand your ground” in his diagram, and he had spoken with the officer at the grocery store so that he could complete the diagram. According to Juror R. R., the officer’s explanation of “stand your ground” gave Juror R. R. “a good idea of what it was to illustrate that point.”

At home that Thursday night, Juror R. R. used the officer’s information about “stand your ground” to create a draft of his diagram. Juror R. R. wanted to correlate the point of impact in a plane crash with the point at which Lloyd shot the victim. He testified that “that’s where [he] used the ‘stand your ground.’ That’s why [he] wanted to ask a question about that, to make sure [he] had that right.”

When the jury reconvened on Friday, Juror R. R. drew his diagram in the jury room. That diagram was admitted at the hearing on the motion for new trial. On it, Juror R. R. had written:

From this point when [the victim] flees threat element gone so no self-defense as stand your ground states. All that is left is preserving personal property you cannot use deadly force to protect that. Fact is Lloyd pursued to recover personal property used deadly force to cause death & taking shoes off. For whatever reason, subject flees, no threat — that defense doesn’t fly

He testified that he had “done some research on it, so that’s what [he] did, and that’s how [they] ultimately got [their] decision.” Just after Juror R. R. made his presentation, he heard a juror say, “Oh. I see it now,” and the jury reached a verdict.

Until that point, the vote had been eleven to one for acquittal; Juror R. R. was the only juror voting all along for conviction. In fact, that morning, the prosecutor had told the court that he and defense counsel were in agreement that it was appropriate to declare a mistrial. Accordingly, within 40 minutes of the jury resuming deliberations Friday morning, the court called in the jurors to determine whether they had made any progress. The foreman informed the court that the jury was very close to reaching a verdict, so the court allowed them to continue deliberations. Forty minutes later, the jury returned the verdict, finding Lloyd guilty of one count of aggravated assault and one firearms offense and not guilty of the other charges.

Some of the jurors remained in the courtroom during sentencing, where the court sentenced Lloyd to 25 years. Some jurors were upset with the sentence, approached defense counsel, and told him about Juror R. R.’s misconduct. As a result, Lloyd filed the instant emergency motion for new trial.

During the hearing on the motion, the trial court heard testimony from five jurors: the state called two jurors as witnesses, including Juror R. R., and Lloyd called three jurors as witnesses. The remaining seven jurors did not testify. (Lloyd presented affidavit testimony of two additional jurors, but the trial court ruled that the affidavits were largely inadmissible and did not refer to them in his order.)

2. Presumption of harm.

The state concedes that Juror R. R. engaged in misconduct, but it argues that the misconduct was harmless. We disagree.

In regard to improper juror communications in criminal cases, our Supreme Court has held, in a long line of authority, that “[t]he rule in this [s]tate is that where such an improper communication occurs, there is a presumption of harm and the burden is on the [s]tate to show the lack thereof.” Jones v. State, 258 Ga. 96, 96-97 (366 SE2d 144) (1988), citing Whitlock v. State, 230 Ga. 700, 700-702 (1) (198 SE2d 865) (1973), and Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888) (1986); accord Simmons v. State, 291 Ga. 705, 707 (4) (733 SE2d 280) (2012); Greer v. Thompson, 281 Ga. 419, 421 (637 SE2d 698) (2006). The state must overcome this presumption beyond a reasonable doubt, and we must determine whether the juror misconduct “is so inherently prejudicial as to require a new trial, or whether it is an immaterial irregularity without opportunity for injury.” Simmons, 291 Ga. at 707 (4) (citation omitted).

Both parties incorrectly take the position that this presumption no longer obtains in light of our decision in Armstrong v. Gynecology & Obstetrics of DeKalb, 327 Ga. App. 737, 738-741 (1) (761 SE2d 133) (2014). Because this is a criminal case, Armstrong is not controlling. In Armstrong, we reasoned that, under the new Evidence Code, it was appropriate to look to federal cases on the issue of juror misconduct, because new OCGA § 24-6-606 (b) is comparable to Fed. Rule of Evid. 606 (b) and both statutes concern juror testimony about verdicts. Id. at 738 (1). (The text of these statutes is reproduced in full below.) But Armstrong’s holding that in civil cases there is no presumption of prejudice arising from juror misconduct merely reaffirms prior authority. See, e.g., Wood v. Food Giant, 183 Ga. App. 604, 605 (3) (359 SE2d 410) (1987); Smith v. Blackshear, 127 Ga. App. 610, 611 (194 SE2d 519) (1972); Bi-Lo v. Stanciel, 148 Ga. App. 614, 616 (4) (251 SE2d 834) (1979). Armstrong cannot be read to undermine the long line of Supreme Court authority holding that such a presumption does obtain in criminal cases — especially since the analyses in that line of authority do not cite the Evidence Code. See Jones, supra; Whit-lock, supra; Dudley, supra; Simmons, supra; Greer, supra. So the trial court properly presumed harm, given the undisputed juror misconduct on a central issue in the case.

3. Communication with police officer.

We review the trial court’s conclusion that Juror R. R.’s communication with a police officer was harmless in light of that presumption. The trial court so concluded on the basis that the conversation involved a legal concept, not the facts of the case nor the officer’s opinion about a particular hypothetical fact scenario and that the officer’s explanation was consistent with the court’s jury instructions and Georgia law. The court resolved a troubling conflict in the jurors’ testimony in favor of the state: Although two of the jurors called by Lloyd testified that Juror R. R. told them that the police officer said it was never permissible to shoot someone in the back, Juror R. R. testified that he did not ask the officer about shooting someone in the back. The trial court found the state’s witnesses to be more credible. The court concluded that since Juror R. R. did not communicate to his fellow jurors that the police officer said it is never permissible to shoot a victim in the back, the state overcame the presumption of harm from Juror R. R.’s misconduct.

We must defer to the trial court’s findings of fact, but we disagree with his conclusion of law. Aside from the shot-in-the-back issue, the jury had specifically asked the court whether pursuit was included in “stand your ground.” The court told the jury that “stand your ground” is not a specific concept in Georgia, but he did not answer the jury’s question directly. Instead, the court properly instructed the jury that an accused is justified in using force when he reasonably believes that force is necessary to prevent death or great bodily harm and when the circumstances would excite the fears of a reasonable person, and that the accused must truly have acted under the influence of these fears and not in a spirit of revenge. At the motion for new trial hearing, Juror R. R. himself testified that, “I asked a question in here, sent a message out on this very point and it didn’t really get explained or anything,” so he decided to ask the officer, who told him that it is not permissible to pursue someone in a stand-your-ground situation. This testimony was confirmed by one of the jurors called by Lloyd, who testified that from the way Juror R. R. explained it, she concluded that the officer had told Juror R. R. that it was unjustifiable to shoot the victim when he turned around and ran. And Juror R. R.’s diagram — which he presented just before the jury reached its verdict — included language about pursuit and “stand your ground.” The testimony of the jurors indicates that Juror R. R.’s presentation to the jury of the information from the police officer via the diagram convinced them that they could not consider the issue of whether Lloyd’s fear of harm was reasonable when Lloyd shot the victim as the victim was running. We also observe that the trial court never heard from seven of the jurors, so it would be pure speculation to say that they were not affected by Juror R. R.’s misconduct. See Chambers v. State, 321 Ga. App. 512, 519-520 (1) (739 SE2d 513) (2013) (physical precedent only).

Decided October 18, 2016.

L. David Wolfe, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Jeffrey M. Gore, Assistant District Attorneys, for appellee.

[Bjecause the juror’s misconduct in the present case affected the key issue of self [-] defense and the verdict became unanimous only after the introduction of the improper [communication], we conclude that there is a reasonable possibility that the juror’s misconduct contributed to [Lloyd’s] conviction.

Hammock v. State, 277 Ga. 612, 614 (2) (592 SE2d 415) (2004). The state did not overcome the presumption of prejudice beyond a reasonable doubt.

4. Internet research.

Given our holding in Division 3, we do not reach Lloyd’s argument that the trial court erred in finding that Juror R. R.’s researching the definitions of malice murder and felony murder was harmless.

Judgment reversed.

Miller, P. J., concurs. McMillian, J., concurs fully in Divisions 1, 2 and 4, and in judgment only in Division 3.

       OCGA § 24-6-606 (b) provides:
      Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror’s statements be received in evidence as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the jury deliberations or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror’s attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.
      Fed. R. of Evid. 606 (b) provides:
      During an Inquiry into the Validity of a Verdict or Indictment.
      (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
      (2) Exceptions. A juror may testify about whether:
      (A) extraneous prejudicial information was improperly brought to the jury’s attention;
      (B) an outside influence was improperly brought to bear on any juror; or
      (C) a mistake was made in entering the verdict on the verdict form.


source: Caselaw Access Project

license: Public Domain

text:
    A16A0813.
    EQUITY TRUST COMPANY v. JONES.
    (792 SE2d 458)
   McFADDEN, Judge.

This appeal is from the denial of a motion to dismiss for improper venue. Because the trial court’s dismissal rests on an erroneous legal theory, we vacate the order and remand the case for further proceedings.

Ronald G. Jones II filed a complaint against Eddie L. Long, New Birth Missionary Baptist Church, Inc., Ephren Taylor, Jr., City Capital Corporation, Robert Batt, and Equity Trust Company, alleging that he had been fraudulently induced into moving $60,000 into sham investments. Equity Trust Company moved to dismiss the complaint for improper venue on the basis of forum selection clauses in two contracts between it and Jones. Acustodial account agreement provided that

[a]ny suit filed against [Equity] shall only be instituted in the county courts of Lorain County, Ohio where [Equity] maintains its principal office and you agree to submit to such jurisdiction both in connection with any such suit you may file and in connection with any suit which we may file against you.

Similarly, a direction of investment form provided that “[a]ny suit filed against [Equity] arising out of or in connection with its role as custodian of the undersigned’s Retirement Account shall only be instituted in the courts of Lorain County, Ohio; and the undersigned agrees to submit to such jurisdiction.”

The trial court denied the motion to dismiss, reasoning that Jones had alleged sufficient facts in the complaint from which a jury could find that defendants Long and New Birth had a confidential relationship with Jones, that Long and New Birth unduly influenced Jones to sign the contracts, and that such undue influence was “sufficient to overcome the presumption that the forum selection clause[s] should be enforced[.]” The trial court issued a certificate of immediate review, and this appeal followed.

Georgia courts have

adopted the United States Supreme Court’s ruling in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (92 SC 1907, 32 LE2d 513) (1972), that forum selection clauses are prima facie valid and should be enforced unless the opposing party shows that enforcement would be unreasonable under the circumstances. To invalidate such a clause, the opposing party must show that trial in the chosen forum will be so inconvenient that he will, for all practical purposes, be deprived of his day in court. A freely negotiated agreement should be upheld absent a compelling reason such as fraud, undue influence, or overweening bargaining power.

Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795, 797 (1) (b) (692 SE2d 61) (2010) (citations and punctuation omitted). See also Iero v. Mohawk Finishing Products, 243 Ga. App. 670, 670-671 (534 SE2d 136) (2000).

Equity asserts that there is no evidence that the forum selection clauses were included in the contract as the result of fraud or undue influence on its part, and thus the clauses should be enforced. The parties have not cited any Georgia law on this particular issue and we have found none, but federal courts have addressed the issue. While we are not bound by federal case law, we find their reasoning on this issue persuasive and apply it to the instant case. See Wegman v. Wegman, 338 Ga. App. 648 (1) (791 SE2d 431) (2016) (where no Georgia law on point, applying persuasive federal authority to resolve trial court ruling on motion to dismiss under doctrine of forum non conveniens). See also Tolson v. Sistrunk, 332 Ga. App. 324, 331 (1), n. 3 (772 SE2d 416) (2015) (decisions of federal courts are not binding authority on this court, but their reasoning may be persuasive).

The United States Supreme Court has explained that a “forum-selection clause in a contract is not enforceable if the in clusion of that clause in the contract was the product of fraud or coercion. [Cit.]” Scherk v. Alberto-Culver Co., 417 U. S. 506, 519, n. 14 (94 SCt 2449, 41 LE2d 270) (1974) (emphasis in original). “Aforum selection clause is viewed as a separate contract that is severable from the agreement in which it is contained.” Rucker v. Oasis Legal Finance, 632 F3d 1231, 1238 (IV) (11th Cir. 2011) (citations omitted).

A forum-selection clause is understood not merely as a contract provision, but as a distinct contract ... — that is, an agreement between the parties to settle disputes in a particular forum — that is separate from the obligations the parties owe to each other under the remainder of the contract.

Marra v. Papandreou, 216 F3d 1119, 1123 (II) (A) (D.C. Cir. 2000) (citation and footnote omitted). Thus, “[i]n order for a forum selection clause to be invalidated on the basis of . . . fraud or overreaching, a plaintiff must specifically allege that the clause was included in the contract at issue because of [such] fraud [or overreaching].” Rucker, supra at 1236 (IV) (citation omitted).

Unless there is a showing that the alleged fraud or misrepresentation induced the party opposing a forum selection clause to agree to inclusion of that clause in a contract, a general claim of fraud or misrepresentation as to the entire contract does not affect the validity of the forum selection clause.

Preferred Capital v. Assocs. in Urology, 453 F3d 718, 722 (III) (2) (6th Cir. 2006) (citations, punctuation and emphasis omitted).

By requiring the plaintiff specifically to allege that the choice clause itself was included in the contract due to fraud in order to succeed in a claim that the choice clause is unenforceable, courts may ensure that more general claims of fraud will be litigated in the chosen forum, in accordance with the contractual expectations of the parties.

Lipcon v. Underwriters at Lloyd’s, London, 148 F3d 1285, 1296 (III) (A) (11th Cir. 1998) (emphasis in original).

Here, the trial court made no findings as to whether Jones had sufficiently alleged or shown that Equity’s fraud or overreaching had induced him into agreeing to inclusion of the forum selection clauses in the contracts. Rather, the trial court premised its denial of the motion to dismiss solely on findings that Jones’ general allegations of fraud and undue influence by Long and New Birth were sufficient to invalidate the forum selection clauses included in the contracts between Jones and Equity. Such “mere allegation[s] of fraud in the complaint should not determine the enforceability of a forum selection clause.” Picken v. Minuteman Press Intl., 854 FSupp. 909, 911 (II) (N.D. Ga. 1993) (enforcing forum selection clause where the alleged fraud attacked only the underlying transaction as having been deceitful, but didnot attack the language of the contract itself). Thus, the trial court’s order was based on a flawed legal theory that failed to determine the critical issue of whether the forum selection clauses were included in the contracts due to fraud or overreaching. Compare Brinson v. Martin, 220 Ga. App. 638, 640 (1) (b) (469 SE2d 537) (1996) (upholding dismissal of complaint for improper venue where “nothing in the record indicat[ed] that [employer] obtained [employee’s] assent to the forum selection clause [in employment contract] by fraud or overreaching”). “Where it is apparent that a trial court’s judgment rests on an erroneous legal theory, an appellate court cannot affirm[, and instead may] vacate the trial court’s order . . . and remand the case for [further] proceedings^]” Nelson v. Powell, 293 Ga. App. 227, 228 (666 SE2d 598) (2008) (citations and punctuation omitted).

In so doing, we remind the trial court that improper venue is a matter in abatement. See OCGA § 9-11-12 (b) (3); Hight v. Blanken ship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991). See generally Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671 (1) (570 SE2d 1) (2002) (matter in abatement is not an adjudication on the merits).

Generally, when a motion to dismiss involves a factual issue as to a question of abatement, that is, lack of jurisdiction, improper venue, insufficiency of process, insufficiency of service of process or failure to join a party, the trial court is authorized under OCGA § 9-11-12 (d) to hear and determine these defenses before trial without a jury on application of any party

Marietta Properties v. City of Marietta, 319 Ga. App. 184, 186 (1) (732 SE2d 102) (2012) (citation and punctuation omitted; emphasis supplied). See also Parris v. Douthit, 287 Ga. 119 (694 SE2d 655) (2010) (“Under OCGA § 9-11-12 (d), the trial court may hear and determine a defense in abatement such as improper venue prior to trial without submitting it to a jury, or may defer such hearing and determination until trial. [Cits.]”). In considering a matter in abatement such as a motion to dismiss for improper venue under OCGA § 9-11-12 (b) (3),

a trial court is not confined to the allegations of the complaint, as the court would be if considering a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6). [Rather, t]he trial court may hear the matter on affidavits presented by the respective parties, and may direct that the matter be heard wholly or partly on oral testimony or depositions, OCGA § 9-11-43 (b), and has broad discretion in conducting the preliminary hearing on the motion. Accordingly, [on a motion to dismiss for improper venue,] the trial court may receive evidence and make relevant factual findings to decide the threshold issue of [venue].

James v. Dept. of Public Safety, 337 Ga. App. 864, 867 (2) (789 SE2d 236) (2016) (citations and punctuation omitted). Indeed, “[a]ll parties may present evidence at an OCGA § 9-11-12 (d) hearing, and... [t]he trial court cannot refuse to hear evidence at the hearing, except to order the hearing and determination of the motion in abatement be deferred until trial.” Dupree, supra at 675 (1) (b) (citations omitted). But whether the venue determination is made before trial or “deferred until trial, the determination remains one for the trial court, not the jury” James, supra at 868 (2) (citations omitted).

For the foregoing reasons, we hereby “vacate the trial court’s order [denying the] motion to dismiss . . . and remand the case for consideration of the issues under the proper legal standards.” Cleveland v. Katz, 311 Ga. App. 880, 884 (717 SE2d 500) (2011) (citations omitted), overruled in part on other grounds by Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 (765 SE2d 413) (2014). See also Classic Commercial Svcs. v. Baldwin, 336 Ga. App. 183, 190 (3) (784 SE2d 44) (2016) (vacating order on motion to dismiss and remanding case with direction).

Decided October 19, 2016.

William V. Hearnburg, Jr., for appellant.

Johnson & Ward, William D. deGolian; Drew Eckl & Farnham, Barbara A. Marschalk, Vivian B. Fisher, for appellee.

Judgment vacated and case remanded with direction.

Ellington, P. J., and Mercier, J., concur.


author: Per curiam.

text:
    A16A1278.
    SATTERFIELD v. THE STATE.
    (792 SE2d 451)
   Per curiam.

Following a trial by jury, James Satterfield was convicted on three counts of terroristic threats and two counts of terroristic threats with intent to retaliate against a judge. On appeal, he contends the trial court erred by allowing the State to introduce into evidence a gun found in Satterfield’s vehicle at the time of his arrest, by permitting the State to pose improper hypothetical questions to Satterfield’s expert witness, and by allowing the State’s “golden rule” argument and denying Satterfield’s request for a curative instruction. For the reasons shown below, we affirm.

On criminal appeal, appellant is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. Assessing a witness’s credibility is the responsibility of the factfinder, not this Court.

Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citations omitted).

So construed, the evidence shows that in April 2011, Satterfield, acting pro se, petitioned for divorce in the Superior Court of Cobb County By mid-2012, the divorce was granted; the final decree included an order that Satterfield pay his ex-wife $40,000, that his ex-wife receive the couple’s residence, and that Satterfield receive a lake property. In late 2012, Satterfield told a nurse that he wanted to hurt a judge’s wife because he was very unhappy with a divorce situation. Then on November 30, 2012, Satterfield told a professional counselor at an outpatient counseling session that he was angry with the judge who presided over his divorce and that he wanted to “kill” the judge or the judge’s family. The counselor told Satterfield that she was obligated to report his statement to authorities, and she did so. Within a day, the local sheriff notified the judge that Satterfield had threatened his family.

On December 30, 2012, the judge received a five-page, typewritten letter from Satterfield addressed to the judge’s wife (“the letter”). In the letter, Satterfield told the judge’s wife that at one point he fully intended to kill her and her children as a way of getting back at, or teaching a lesson to, her husband who had acted in a biased, unethical, and spiteful manner, often siding with his ex-wife’s attorney during the divorce proceedings. Satterfield then asserted that he had had a change of heart, no longer wanted to kill the judge’s family, and now wanted to warn the judge’s wife about others who have suffered from similar behavior by the judge. But, despite this purported change of heart, a review of the entire letter shows that a jury was fully authorized to conclude that Satterfield was still threatening to kill the judge’s family and that Satterfield was full of thoughts of revenge against the judge for the way he handled Satterfield’s divorce. For example, in the letter Satterfield gave veiled threats, such as “another ‘James Satterfield’ is out there. He may be [lying in wait in one of a number of ways]. Who know[s] how many different way[s] he will be able to get to you.” Or, “You have not suffered anything, so far”; and “so far, I have constrained myself.” Satterfield also wrote about how in preparation of punishing those responsible for his unhappiness, he gave away all of his money, land, and vehicles. Satterfield concluded the letter by stating: “In closing, I hope you take steps to protect yourself and your children from other people who like me are taken advantage of by your husband and his cohorts.”

Based on the letter, the judge felt that Satterfield was threatening to harm him and his family and that the threat was imminent; the judge’s wife also read the letter and their children learned of the contents. The judge therefore notified the sheriff’s department. Based on a warrant for his arrest, Satterfield was arrested on the same day that the judge read the letter. Satterfield was arrested as he walked out of his ex-wife’s house, and the sheriff’s department then obtained a warrant to search that house and Satterfield’s van, which was parked in the driveway. The officers found inside the van an unloaded Taurus revolver, which is capable of shooting both .410 shotgun shells and .45 caliber rounds. The manufacturer’s name for the gun is “The Judge,” and that name is printed on the side of the weapon. Ammunition for the gun was found inside the house, along with a Taurus box for the gun. The officers found a laptop computer inside the van, which the officers searched after obtaining a warrant to do so. The laptop contained a document entitled “fun things to do together or separately,” which had last been accessed on December 21, 2012. One of the items listed was “get revenge.” Officers also found a document that contained the judge’s address and a photograph of his house. The van contained clothes and other personal possessions that appeared to belong to Satterfield. On Satterfield’s person, the officers found a check written to his ex-wife in the amount of $71,500. Abank officer testified that the check had been processed and that only $857.84 remained in Satterfield’s account thereafter. These facts raised the implication that at the time he was arrested, Satterfield was in the process of doing what he stated in the letter — that he was disposing of his assets in advance of taking revenge on the judge and his family

Satterfield presented expert witnesses in his own defense who testified that Satterfield had serious mental disorders, including suicidal ideations, major depressive disorder, a variant of bipolar disorder, and post-traumatic stress disorder. Satterfield also presented evidence in support of his defense that he had a delusional compulsion that “overmastered his will to resist committing the crime.” See OCGA § 16-3-3. A forensic psychologist testified that although Satterfield knew the difference between right and wrong at the time Satterfield sent the letter to the judge’s wife, he also had a delusional compulsion that overmastered his will, which was that because the judge had mistreated him, the judge must have mistreated others in the same way; Satterfield therefore decided to warn the judge’s wife that others who had been mistreated by the judge might seek to harm the judge’s family Expert witnesses called by the court concurred in the opinion that Satterfield had a delusional compulsion, although one testified that if Satterfield had acted out of a sense of revenge, he would not have been acting out of a delusional compulsion.

Satterfield was charged with three counts of terroristic threats, OCGA § 16-11-37 (b), and two counts of terroristic threats with intent to retaliate against a judge, OCGA § 16-11-37 (e) (l). The indictment charged that the threat in each count was to murder one or more members of the judge’s family. The jury found Satterfield guilty on all counts. The trial court merged the two counts of threats with intent to retaliate and sentenced Satterfield to ten years with eight to serve on those counts; on the remaining counts, the court sentenced Satterfield to five years to serve concurrent with the retaliation counts. Satterfield’s motion for new trial was denied, and he appealed.

1. During trial, Satterfield objected to the introduction of the revolver into evidence on the same grounds raised on appeal, that it was not relevant to the charges against him and that even if it was relevant, the gun was significantly more prejudicial than probative. The trial court overruled the objection, and the gun was admitted into evidence. In denying Satterfield’s motion for new trial, the trial court held that the gun was evidence of Satterfield’s intent to terrorize and evidence that countered Satterfield’s argument that his letter indicated that he no longer had a present intent to terrorize. We review decisions to admit evidence for abuse of discretion. Blackledge v. State, 299 Ga. 385, 391 (5) (788 SE2d 353) (2016).

(a) Satterfield’s trial was held in January 2014 and was therefore governed by the new Evidence Code. See Ga. L. 2011, pp. 99, 214, §101 (new Evidence Code effective for trials commencing on or after January 1, 2013) . Under the new Code, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. Generally, all relevant evidence is admissible, OCGA § 24-4-402, but “maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403.

We find no abuse of discretion by the trial court allowing admission of the revolver. First, we disagree with Satterfield that the letter showed that he had “unequivocally renounced, rejected, and repudiated any former intention to harm the judge’s family,” and that, therefore, the State was not authorized to argue to the jury that the letter showed that Satterfield intended to kill the judge’s family. It is for the jury to decide whether the defendant’s actions constitute a terroristic threat, and “[a] communication is sufficient to constitute a threat if a reasonable person could conclude that it was a threat under the circumstances.” Clement v. State, 309 Ga.App. 376, 379-380 (1) (a) (710 SE2d 590) (2011) (citations and punctuation omitted). Our reading shows that Satterfield’s letter contained many veiled threats to kill the judge’s family; moreover, the jury was not required to believe that Satterfield had in fact changed his mind about killing the family. Accordingly, a reasonable person could conclude that the letter contained multiple threats to kill, and therefore the State was authorized to argue and the jury was authorized to find that Satter-field had threatened murder.

Second, Satterfield’s argument that the gun was not res gestae and constituted evidence wholly unconnected to the charges against him is without merit. Prior to the new Evidence Code, the concept of res gestae provided that all the acts and circumstances surrounding the charged offense were admissible even if they reflected upon the defendant’s character. Baughns v. State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016). This rule of admissibility has been carried forward to the new Evidence Code under the concept of “intrinsic” evidence, as opposed to “extrinsic” evidence, i.e., evidence of “other crimes, wrongs, or acts,” which is subject to the admissibility requirements of OCGA § 24-4-404 (b). Baughns, 335 Ga. App. at 602 (1). “Evidence is intrinsic ‘if it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense.’ ” Brooks v. State, 298 Ga. 722, 727 (2), n. 11 (783 SE2d 895) (2016), quoting United States v. Utter, 97 F3d 509, 513 (II) (B) (11th Cir. 1996). Here, at the time that Satterfield was arrested, the evidence of the gun, the gun box, and the ammunition strongly suggests that Satterfield was in the process of executing the steps outlined in the December 30, 2012 letter in that he was disposing of his assets and arming himself to follow through on his plan to murder the judge’s family, motivated by revenge. Accordingly, at a minimum, the gun and related evidence were inextricably intertwined with the evidence of the charged offenses and therefore relevant to the charges against Satterfield.

The gun evidence was also relevant to Satterfield’s defense to the crimes for which he was charged. In order to prove that Satterfield committed a terroristic threat, the State was required to prove that Satterfield communicated a threat to the victims, that the threat was of an act of violence, and that Satterfield acted with intent to terrorize. Carver v. State, 258 Ga. 385, 386 (1) (369 SE2d 471) (1988); see also Armour v. State, 265 Ga. App. 569, 571 (1) (594 SE2d 765) (2004) (“The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize.”) (footnote omitted). “Since a deliberate intent to terrorize is an integral part of the crime, evidence showing terroristic intent is not only relevant, but necessary, to proving such a case.” Carver, 258 Ga. at 386 (1). Satterfield’s defense was that he did not intend to threaten or terrorize but rather to warn the judge’s family that others like him might soon harm them because of the judge’s actions. As the trial court held, the evidence procured during Satterfield’s arrest, including the gun, tended to show that Satterfield was actually preparing to follow through on the threats contained in the letter. This evidence thus rebutted Satter-field’s defense that he was innocently trying to warn the victims of danger from other sources. See Blake v. State, 273 Ga. 447, 448 (2) (542 SE2d 492) (2001) (under former rules of evidence, evidence admissible where “it served to rebut appellant’s sole defense at trial — insanity that rendered him unable to control his actions in killing the victim”). The gun was also relevant to Satterfield’s threats because Satterfield stated in the letter that the sound of firecrackers on New Year’s eve “would help cover the noise of gunshots.”

In short, Satterfield’s possession of the gun was inextricably intertwined with the evidence relating to Satterfield’s terroristic letter and was relevant to rebutting his defense in that it tended to make his defense less probable. See OCGA §§ 24-4-401; 24-4-402. The trial court therefore did not abuse its discretion by finding the gun to be admissible.

(b) We also hold that the trial court did not abuse its discretion in determining that the prejudicial value of the gun did not substantially outweigh the probative value under OCGA § 24-4-403. Here, the evidence was very probative as rebuttal to Satterfield’s defense that he did not intend to threaten or terrorize but only to warn the judge’s family. And although certainly prejudicial, we cannot say that the trial court abused its discretion in determining that the prejudicial effect did not substantially outweigh the probative value of the gun. Exclusion of evidence under OCGA § 24-4-403 is “an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility” Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014) (punctuation and footnote omitted). We find no abuse of discretion by the trial court in its decision to allow into evidence the weapon found in Satterfield’s car at the time of his arrest.

2. Satterfield next contends the trial court erred by allowing the State to pose five improper questions of his expert witness because the questions were not based on facts in evidence. We find no error.

The essence of Satterfield’s argument is that in each of the five questions, the State asked Satterfield’s expert if the expert’s opinion that Satterfield had a delusional compulsion would be different, if it could be shown that Satterfield acted out of a desire for revenge on the judge. Satterfield objected on the ground that this fact was not in evidence. There were facts in evidence supporting a revenge theory, however. Two medical professionals testified that Satterfield told them that he was considering harming a judge’s family because of his anger at how the judge handled his divorce; a recently-accessed document found on Satterfield’s computer showed that he contemplated revenge; and the threatening letter itself was full of references to acting out of revenge. We find no abuse of discretion.

3. Finally, Satterfield contends the trial court erred by not sustaining his objection to the State’s closing argument on the ground that it violated the “golden rule,” which forbids any argument “that, regardless of the nomenclature used, asks the jurors to place themselves in a victim’s position.” Braithwaite v. State, 275 Ga. 884, 885 (2) (b) (572 SE2d 612) (2002) (footnote omitted).

In the relevant portion of the closing, the prosecutor argued:

Again, just — man, read the letter. Read the letter. It will make your heart skip a beat. A mother and father read this letter. You can just imagine how they felt.

Decided October 19, 2016.

Kilgore & Rodriguez, H. Maddox Kilgore; The Hames Law Firm, Adam M. Hames, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, John R. Edwards, Assistant District Attorneys, for appellee.

Jacqueline L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, amici curiae.

Satterfield objected and moved for a mistrial on the ground that the State violated the golden rule by asking the jury “to step into the shoes of the victims.” The court denied the motion for mistrial. We review a decision regarding improper argument for abuse of discretion. McKibbins v. State, 293 Ga. 843, 850 (3) (b) (750 SE2d 314) (2013).

“A ‘golden rule’ argument is one that, regardless of the nomenclature used, asks the jurors to place themselves in a victim’s position.” Braithwaite, 275 Ga. at 885 (2) (b) (footnote omitted). Such an argument is impermissible “because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” Spears v. State, 296 Ga. 598, 614 (11) (b) (769 SE2d 337) (2015) (citation and punctuation omitted). The statement at issue here did not violate this rule because it was not concerned with how a juror would feel if he or she were the victim. Rather it asked the jurors to imagine how the victims felt when they received the letter, and whether the letter constituted a threat was an issue to be decided by the jury. See Ellington v. State, 292 Ga. 109, 143 (10) (b) (735 SE2d 736) (2012) (not a violation of the golden rule where “the argument focused the jury’s attention on the evidence showing the nature of the acts [the defendant] committed against the victims rather than directly asking jurors to place themselves in the position of the victims”); Hargrove v. State, 291 Ga. 879, 884 (5) (734 SE2d 34) (2012) (not a violation of golden rule to ask jury to consider the feelings of the victim’s family); Ledford v. State, 289 Ga. 70, 86(17) (709 SE2d 239) (2011) (not a violation of golden rule to “urg[e] the jury to think about the unpleasant way in which the victim had died”). Compare Spears, 296 Ga. at 614 (11) (b) (violation of golden rule where the State argued, “If he ever escaped, it could be you.”). Accordingly, the trial court did not abuse its discretion by denying Satterfield’s motion for mistrial.

Judgment affirmed. Division Per Curiam.

All Judges concur.

       “A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” OCGA § 16-3-3.

       “A person commits the offense of a terroristic threat when he or she threatens to... [c]om-mit any crime of violence . .. [w]ith the purpose of terrorizing another [.] OCGA § 16-11-37 (b).

       A person who commits or attempts to commit a violation of subsection (b) or (c) of this Code section shall, upon conviction thereof, be punished by a fine of not less than $50,000.00, imprisonment for not less than five nor more than 20 years, or both, when such act is done with the intent to retaliate against any person for or intimidate or threaten any person from .. . [attending a judicial or administrative proceeding as a . . . judge.
      OCGA § 16-11-37 (e).

       Many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when we consider the meaning of these provisions, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit.

        Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016) (citation omitted).

       Evidence of “other crimes, wrongs, or acts,” so-called “extrinsic evidence,” is admissible for purposes “including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” provided proper notice is given. OCGA § 24-4-404 (b). Notice is not required when such evidence “is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.” OCGA § 24-4-404 (b).

       See United States v. Mills, 704 F2d 1553, 1560 (IV) (11th Cir. 1983) (“Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.”) (citation omitted; emphasis in original).


author: Rickman, Judge.

text:
    A16A0863.
    MISSION HEALTH OF GEORGIA, LLC et al. v. BAGNUOLO.
    (793 SE2d 98)
   Rickman, Judge.

On October 21, 2014, after the death of Stephen McLoughlin, the administrator of his estate, the appellee, filed a complaint against the appellants and his treating physician, Andrew Frinks, M.D. alleging claims of ordinary and professional negligence and seeking damages. The appellants filed an answer raising as a defense appellee’s failure to file an expert affidavit in accordance with OCGA § 9-11-9.1. The appellants did not file, however, a motion to dismiss. Frinks filed his answer also alleging a defense based upon the appellee’s failure to file an expert affidavit as required by OCGA § 9-11-9.1 and, contemporaneously, filed a motion to dismiss. On January 2, 2015, the appellee voluntarily dismissed her complaint without prejudice.

On June 26, 2015, the appellee refiled her complaint pursuant to OCGA § 9-2-61 and attached an expert affidavit. Frinks filed his answer to the renewed complaint and refiled his motion to dismiss based upon the appellee’s failure to attach an expert affidavit to the original complaint. The appellants also filed, for the first time, a motion to dismiss the appellee’s renewed complaint for failure to attach an expert affidavit to the original complaint.

The trial court granted Frinks’s motion to dismiss as to the professional negligence claim because the original complaint failed to comply with OCGA § 9-11-9.1. However, the trial court denied the appellants’ motion to dismiss, concluding that they waived any objection to the appellee’s failure to file an expert affidavit with the original complaint because they failed to file a motion to dismiss the original complaint. It is from this order that the appellants now appeal. The appellants contend that the trial court erred by denying their motion to dismiss. For the following reasons, we affirm.

The appellants argue that the trial court erred by denying their motion to dismiss because Frinks filed a motion to dismiss the original complaint and, thus, they were not required to file a motion to dismiss in addition to their answer to the original complaint. We disagree.

“On appeal, we conduct a de novo review of a trial court’s ruling on a motion to dismiss.” (Punctuation and footnote omitted.) Kerr v. OB/GYN Assoc. of Savannah, 314 Ga. App. 40, 41 (723 SE2d 302) (2012).

Pursuant to OCGA § 9-11-9.1 (f),

[i]f a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.

“On its face, this statute requires a motion to dismiss to be filed in addition to the first responsive pleading to foreclose the possibility of renewal under OCGA § 9-2-61.” Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). The appellants did not file a motion to dismiss contemporaneously with their answer to the original complaint. They argue that because Frinks filed a motion to dismiss along with his answer to the original complaint, they were not required to. However, not only did the appellants fail to file a motion to dismiss the original complaint as required by OCGA § 9-11-9.1 (f), they also did not join in Frinks’s motion to dismiss the original complaint. The trial court correctly noted in its order denying the appellants’ motion to dismiss that, “[n]o reason appears why [the appellants] should be able to rely on the motion [Frinks] filed in the original case[.]”

Decided October 20, 2016.

Quirk & Quirk, Kevin E. Quirk, Kathleen A. Marsh, for appellants.

The Casto Law Firm, Mark A. Casto; Insley & Race, Brynda R. Insley, Aynsley M. Harrow, Philip A. Henderson; Warner, Bates, McGough, McGinnis & Portnoy, J. Matthew Anthony, for appellee.

[I]n order to bar appellees from filing a renewal action, OCGA § 9-11-9.1 (c) required appellants to file a motion to dismiss at the same time they filed their answer to the original complaint. Only raising the matter as a defense in the answer was insufficient to preclude appellees from renewing their action pursuant to OCGA § 9-2-61.

Opensided MRI of Atlanta, 287 Ga. at 408. Thus, the trial court did not err in denying the appellants’ motion to dismiss. See id.; see also Dove v. Ty Cobb Healthcare Systems, 316 Ga. App. 7, 10-11 (2) (729 SE2d 58) (2012).

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.

       Frinks is not a party to this appeal.

       OCGA § 9-11-9.1 (a) requires that “[i]n any action for damages alleging professional malpractice ... the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

       OCGA § 9-2-61 (a) provides:
      When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

       We reject the appellants’ interpretation of OCGA § 9-11-9.1 (f) as requiring the entire complaint, including the claims for ordinary negligence not requiring an expert affidavit, to be dismissed if any defendant in an action files a motion to dismiss as required by the statute because it is inconsistent with this Court’s precedent. See Upson County Hosp. v. Head, 246 Ga. App. 386, 392-393 (2) (540 SE2d 626) (2000) (claims for professional negligence dismissed for failure to file an expert affidavit pursuant to OCGA § 9-11-9.1 (f) but claims for ordinary negligence survived); see also Williams v. Alvista Healthcare Center, 283 Ga. App. 613, 614-616 (1) (a), (b) (642 SE2d 232) (2007) (trial court properly dismissed professional negligence claims for failure to file an expert affidavit pursuant to OCGA § 9-11-9.1 (f) but improperly dismissed claims for ordinary negligence).

       This case dealt with a previous version of OCGA § 9-11-9.1. However, the analysis under the current version of the statute remains the same. See Opensided MRI of Atlanta, 287 Ga. at 407, n. 4.

       The appellants also contend that the trial court erred in denying their motion to dismiss by failing to dismiss the ordinary negligence claims alleged in the complaint and by failing to dismiss Mission Health of Georgia, LLC because it was not named in the original complaint. However, these claims were not alleged in their motion to dismiss the renewed complaint. “We are limited to considering only those grounds raised and ruled on below by the trial court and may not consider a basis for appeal not presented at the trial level. Therefore, this argument is waived.” (Punctuation and footnote omitted.) AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga. App. 615, 619 (2) (a) (621 SE2d 576) (2005).


text:
    A16A0927.
    DeGEORGIS v. THE STATE.
    (793 SE2d 101)
   Rickman, Judge.

Following a jury trial, David DeGeorgis was convicted of two counts of sexual exploitation of children for possessing both printed and electronic images depicting minors engaged in sexually explicit conduct. Prior to trial, DeGeorgis filed a motion to suppress the evidence seized during the execution of the warrants to search his computer equipment and residence, and he further moved to suppress a statement he made to the investigating officers conducting the search of his home. The trial court denied DeGeorgis’s motions and admitted the evidence, which DeGeorgis asserts was error. We disagree and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

(Citation omitted.) Brown v. State, 336 Ga. App. 428, 429 (785 SE2d 84) (2016).

So construed, the evidence shows that in August 2012, DeGeor-gis’s estranged wife brought a computer tower to the Holly Springs Police Department and expressed concern that she had discovered child pornography on its hard drive. Upon speaking to a police lieutenant, DeGeorgis’s wife explained that she had recently moved out of her and DeGeorgis’s marital home, but returned when she knew that DeGeorgis was absent in order to retrieve computer equipment used by DeGeorgis which she knew to contain sexually explicit pictures of herself. While later viewing images on the hard drive of one of the computer towers, she discovered what she believed to be child pornography and brought the tower to the police station. She requested that the lieutenant look at the computer’s contents to confirm whether it contained unlawful material.

The lieutenant agreed to do so and after viewing some of the images, he also came to suspect that the computer contained child pornography He thereafter took possession of the computer tower at issue, as well as a second computer tower and two external hard drives that DeGeorgis’s wife had also retrieved from the residence. The lieutenant obtained search warrants for each piece of equipment and requested that a forensic study of their contents be conducted.

At the same time that the lieutenant was in the process of obtaining the search warrants and releasing the towers and drives for forensic analysis, DeGeorgis filed a police report at the same police station in reference to the missing items. The lieutenant arranged to meet an unsuspecting DeGeorgis at his home the following day. Upon arrival, the lieutenant presented DeGeorgis with a search warrant for the residence, and he and a second officer proceeded to conduct the search while two additional officers remained outside for security.

The search focused primarily on an area of the garage that DeGeorgis had converted into a “man cave,” and in which he spent the vast majority of his time. The area contained a myriad of locked boxes, drawers, and compartments. When asked, DeGeorgis informed the lieutenant that one of the locked cabinets contained a metal key box holding color-coded keys to each of the remaining locked containers, and he provided the lieutenant with a key to the cabinet. In one locked drawer, the lieutenant found numerous ziplock baggies containing women’s undergarments, each individually labeled with a female’s name and a date. After being questioned about the items, DeGeorgis admitted that they were “in his possession.” The remaining locked containers contained a pornography collection so extensive that, once seized, it took law enforcement officers working in shifts almost two months to sift through its contents and to separate out the 28 printed images depicting child pornography that were ultimately tendered at trial.

A forensic study of the computer towers and of one of the external hard drives also revealed an immense collection of “bizarre” pornography, including 127 electronic images flagged by the forensic examiner as depicting pictures of naked underage minors.

DeGeorgis was charged with and convicted of two counts of sexual exploitation of children in violation of OCGA § 16-12-100 (b) (8). He filed a motion for new trial, which the trial court denied. This appeal follows.

1. DeGeorgis argues that the trial court erred in denying his motion to suppress the electronic images located on the computer equipment. Specifically, he contends that because his wife “was estranged, separated, and had reentered the marital residence without permission to take and view the computers,” her consent to search the computer tower was void and the lieutenant’s viewing of its contents was unlawful. DeGeorgis further asserts that the resultant search warrants for the remaining computer equipment and his residence amounted to fruit from the poisonous tree and were, thus, invalid.

It is well established, however, “that no illegal search and seizure occurs when a private citizen independently discovers contraband or other evidence of illegal conduct and then brings it to the attention of law enforcement.” Johnson v. State, 231 Ga. App. 823, 825 (3) (499 SE2d 145) (1998); see United States v. Jacobsen, 466 U. S. 109, 113 (I) (104 SCt 1652, 80 LE2d 85) (1984). Indeed, “[t]he protection afforded by the Fourth Amendment proscribes only governmental action and is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation of a government official.” (Citation, punctuation and footnote omitted.) Hitchcock v. State, 291 Ga. App. 455, 457 (2) (662 SE2d 155) (2008); see Jacobsen, 466 U. S. at 113 (I). In this context, “[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.” Jacobsen, 466 U. S. at 117 (I); see Hobbs v. State, 272 Ga. App. 148, 150 (1) (611 SE2d 775) (2005) (“No Fourth Amendment violation exists when an individual’s privacy is initially invoked by a private act, and any additional invasion of [a defendant’s] privacy ... is measured by the degree to which [the authorities] may have exceeded the scope of the private search.”) (citations omitted).

Here, the evidence is uncontroverted that the lieutenant’s initial viewing of the contents of the computer tower’s hard drive occurred at the request of DeGeorgis’s wife, the lieutenant was guided in his search by DeGeorgis’s wife so as to view the files that she had already viewed, and the lieutenant looked at the images solely for the purpose of verifying whether the computer contained unlawful material. The lieutenant’s initial search did not, therefore, amount to a violation of DeGeorgis’s Fourth Amendment rights. See Hobbs, 272 Ga. App. at 150 (1) (“Discovery of the contraband by a private citizen and the verification of this evidence by the investigators ... do not violate the Fourth Amendment.”); Hester v. State, 187 Ga. App. 46, 47 (369 SE2d 278) (1988) (rejecting appellant’s argument that his Fourth Amendment rights were violated when shop owner discovered what he suspected to be narcotics while working on appellant’s vehicle and reported the contraband to authorities); see also Jacobsen, 466 U. S. at 118-122 (II). After observing what he believed to be child pornography on the tower’s hard drive, the lieutenant had probable cause to obtain search warrants for the remaining computer equipment and home. See generally Henson v. State, 314 Ga. App. 152, 154-155 (723 SE2d 456) (2012) (noting that an officer who discovered child pornography on appellant’s laptop computer while searching its contents for evidence of a drug crime had probable cause to obtain additional search warrants for the phone and appellant’s computer equipment because the facts supported a finding that “there [was] a fair probability that evidence of a crime [would] be found in a particular place”) (punctuation and footnote omitted). The trial court, therefore, did not err in denying DeGeorgis’s motion to suppress on that basis.

2. DeGeorgis further contends that the trial court erred in denying his motion to suppress his admission made during the search of his residence that he possessed the ziplock baggies containing women’s undergarments. He argues specifically that the statement was rendered involuntary because the lieutenant had allegedly taken his cellular phone and his car keys and he did not believe that he was free to leave at the time the statement was made.

We begin by noting that the trial court excluded both the actual question posed to DeGeorgis as well as DeGeorgis’s detailed response to that question on the basis that they were unduly prejudicial. Thus, the evidence presented to the jury was limited solely to DeGeorgis’s admission that the ziplocked undergarments found during the search were “in his possession.” Nevertheless, DeGeorgis’s representation of the facts surrounding his admission is belied by the record. The lieutenant seized DeGeorgis’s cellular phone because it was specifically enumerated on the search warrant as an item that may contain evidence of a crime, and at no time did the lieutenant or any other law enforcement officer request or seize DeGeorgis’s car keys. Rather, after being asked if he would produce keys to the myriad of locked containers in his “man cave” so as to avoid the officers cutting those locks, DeGeorgis voluntarily produced a key ring holding the key to a locked cabinet in which the remaining keys were stored. DeGeorgis now contends, without having produced any evidence in support, that the same key ring also held his car key.

Regardless, even assuming DeGeorgis’s car key was inadvertently taken by the lieutenant, the record fully supports the trial court’s ruling that DeGeorgis’s admission to possessing the undergarments was voluntary Although DeGeorgis was asked to remain outside the home for officer safety during the search, he was not placed under arrest, was not confined in any way, and was never told that he could not leave. Indeed, the officers testified that had DeGeor-gis attempted to leave during the search, he would have been permitted to do so. It follows that DeGeorgis failed to prove that his statement was involuntary See Quedens v. State, 280 Ga. 355, 358-359 (2) (629 SE2d 197) (2006); see also Bragg v. State, 295 Ga. 676, 679 (4) (b) (763 SE2d 476) (2014).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Decided October 20, 2016.

Patrick G. Longhi, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

       The forensic examiner testified that the second external hard drive was defective and he was unable to image or copy any of its contents.

       The trial court suppressed details regarding the specific kinds of pornography not involving minors that were stored on the computers.

       “It is unlawful for any person knowingly to possess or control any material which depicts a minor or aportion of a minor’s body engaged in any sexually explicit conduct.” OCGA § 16-12-100 (b) (8).


author: BARNES, Presiding Judge.

text:
    A16A0970.
    HARRIS v. THE STATE.
    (793 SE2d 417)
   BARNES, Presiding Judge.

Timothy Harris shot and killed a man inside his house, and was tried on several counts of felony murder, aggravated assault, firearms possession, and other offenses. The jury convicted Harris of the lesser included offense of voluntary manslaughter and other charges, and the trial court sentenced him to twenty years to serve, followed by five years on probation. Following the denial of his motion for new trial, Harris appeals, arguing that his trial counsel was ineffective for withdrawing his requested charge of defense of habitation. For the reasons that follow, we conclude that the trial court did not abuse its discretion in concluding that trial counsel’s decision to withdraw that defense was not deficient performance, and affirm.

1. Harris was indicted for felony murder for causing the victim’s death by shooting while committing the offense of possession of a handgun by a convicted felon, and for felony murder for causing the victim’s death by shooting while committing the offense of aggravated assault. The jury found him not guilty of the first count of felony murder and guilty of the lesser included offense of voluntary manslaughter in the second count of felony murder.

Although [Harris] does not dispute that the evidence is legally sufficient to sustain his convictions, we nevertheless review the record and independently assess the legal sufficiency of the evidence. In doing so, we apply the familiar standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), asking whether any rational trier of fact could find beyond a reasonable doubt from the evidence adduced at trial that [Harris] is guilty of the crimes of which he was convicted. See 443 U. S. at 319 (III) (B).

White v. State, 293 Ga. 523, 523 (1) (753 SE2d 115) (2013).

So viewed, the evidence showed that Harris and his nephew lived in the same house, and the victim was a friend of Harris’s who came over nightly and sometimes stayed at the house. Another friend of Harris’s testified that he went to the house that evening hoping to get high on cocaine, which he usually bought from the nephew. Harris let him in, and the friend heard the victim back in the nephew’s bedroom “yelling in general about some female.” The friend went back and suggested that the victim step out of the bedroom to let the nephew dress, and the victim responded that he was going to confront Harris about money Harris owed him.

The victim went into the living room where Harris was lying on the couch and began jabbing him with a six- to seven-foot stick about the size of a closet rod, so the friend stepped between Harris and the victim. After the victim hit the friend in the face, the friend finally wrested the stick away, threw it down, and announced his intention to leave the house. Harris got up from the couch, and the friend pushed the victim to the doorway, trying to get him to leave, but the friend was unable to control the victim by himself. The nephew ran out the door, and as the friend yelled for the nephew to come back and help defuse the situation, the victim “got upset again,” walked back into the house, and confronted Harris a second time.

The friend heard the victim screaming and cursing at Harris but could see only Harris. He saw a flash, heard a pop, and then heard the victim stumbling back toward the bedroom. The friend went to the victim, who said, “Don’t let him shoot me again.” The friend saw an object in Harris’s hand, but could not tell if it was a gun or not. The friend tried to get the victim to lie down while directing Harris, whom he described as “hysterical,” to call 911. The friend finally dialed 911 himself and handed the phone to Harris, although he did not actually hear Harris speak to an operator. The friend finally managed to get the victim to lie down and then left the scene within two minutes of the shooting, explaining that he was high and frantic and did not know what to do.

The nephew testified that he saw the victim in the living room hitting Harris with a stick and offered to pay the victim whatever Harris owed “just to keep the commotion down.” The victim responded, “Bump you, I don’t want your money Somebody [sic] going to die tonight.” The nephew confirmed that the friend got between Harris and the victim, but the victim kept swinging his stick and hitting both men until Harris “staggered up out of there and that’s when the gun went bang.” The nephew testified that Harris was standing by the kitchen and shot the victim when the victim rushed Harris with the stick again. The nephew also testified that after the friend took Harris’s gun and left with it, Harris called the police. The nephew admitted he left the scene too.

A 911 supervisor testified that an operator received an emergency call at 3:12 a.m. from a man later identified as Harris. The supervisor prepared a report that quoted the caller as saying, “Its [sic] been an accident, send the police” and noted that the caller then hung up and no one answered a call back. A patrol officer was dispatched two minutes later and responded six minutes after that to find Harris alone in the house with the victim, who was lying on a bedroom floor with his pants down around his knees.

The victim appeared to be dead, and the officer testified that there was “blood everywhere in the room,” some of which had already dried. Harris initially told the responding officer that the victim had been shot by another man, but later admitted having shot the victim himself. In his second statement, Harris told the police that the victim came to the house and woke him with a stick. Harris said he went to the kitchen, pulled a gun from the drawer, and shot the victim in self-defense.

A paramedic who responded to the scene testified that the victim had been shot in the chest and his skin temperature was cool. Congealed blood was on the floor, and the paramedic testified that it normally took about two hours for blood to congeal. Also, rigor mortis was setting into the victim’s body, and that generally occurred from about an hour and a half to two hours after death. A crime scene investigator testified that he found a mop with bloody fingerprints on the handle sitting in a bucket of dark water at the scene, and a latent print examiner with the GBI testified that she matched a print from the mop handle to Harris. The medical examiner testified that the victim was shot in the chest from a few feet away, and the bullet struck the victim’s pulmonary artery, causing massive internal bleeding and death within five to ten minutes.

The jury could have determined that after the friend took the victim’s stick away, the victim had stopped his attack on Harris, and that Harris’s actions in going into his kitchen, pulling a gun from the drawer, and shooting the victim in the chest were disproportionate to the threat presented. See OCGA § 16-3-21 (a) (person justified in using force intended or likely to cause death or great bodily harm only if he reasonably believes such force necessary to prevent death or great bodily injury to himself). Further, Harris’s initial statement to the police in which he lied about someone else having shot the victim, along with evidence that he altered the crime scene, disposed of the handgun, and called the police only after the victim’s blood had congealed and rigor mortis had set in, could be viewed by a rational jury as consciousness of guilt. Sweet v. State, 278 Ga. 320, 325 (7) (602 SE2d 603) (2004) (attempt to blame another for shooting victim was relevant as evidence of consciousness of guilt); White v. State, 127 Ga. 273, 275 (56 SE 425) (1907) (“The conduct of a person charged with a crime, indicating a consciousness of his guilt, is relevant evidence against him.”).

Considering all of the evidence as summarized above, it was sufficient to authorize a rational jury to find Harris guilty of voluntary manslaughter and the other offenses of which he was convicted. Neverson v. State, 324 Ga. App. 322, 323-324 (1) (750 SE2d 397) (2013).

2. Harris argues that his trial counsel was ineffective for withdrawing his request to charge the jury on defense of habitation under OCGA § 16-3-21. The State responds that the defense was not supported by the evidence and that trial counsel made a reasonable strategic decision to pursue a defense of only justification.

A person accused of a crime has a right to the effective assistance of counsel. Strickland v. Washington, 466 U. S. 668, 686 (II) (104 SCt 2052, 80 LE2d 674) (1984). Strickland established a two-prong test for a claim of ineffective assistance of counsel: first, the appellant must show that counsel’s performance was deficient, and second, the appellant must show that counsel’s deficient performance prejudiced his defense. Id. at 687 (III). “[T]he burden is on the defendant to make both showings, and ... a reviewing court could find lack of sufficient prejudice without deciding whether counsel’s performance was deficient” or vice versa. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985).

In deciding whether trial counsel’s performance was deficient under the first prong of Strickland, Georgia has followed most federal and state courts and adopted the “reasonably effective assistance” standard, which asks whether counsel’s assistance was reasonable considering all of the circumstances. Smith, 253 Ga. at 783 (1). This standard also entitles counsel to “a strong presumption . . . that counsel’s conduct falls within the wide range of reasonable professional conduct and that all significant decisions were made in the exercise of reasonable professional judgment.” Id. We review a trial court’s decision on an ineffective assistance claim for abuse of discretion. Robinson v. State, 332 Ga. App. 240, 251 (5) (b) (771 SE2d 751) (2015).

Here, the trial court reviewed the evidence and found that Harris’s trial counsel was an experienced and seasoned criminal defense attorney whose testimony at the motion for new trial hearing was credible. The court found that the victim attacked Harris rather than Harris’s habitation, that self-defense was an appropriate defense, and that trial counsel “reasonably and strategically” decided to withdraw his request for a jury charge on defense of habitation and proceed with only a self-defense claim.

Trial counsel submitted the following request to charge:

One who is not the aggressor is not required to retreat before being justified in using such force as is necessary for personal defense or in using force that is likely to cause death or great bodily harm if one reasonably believes such force is necessary to prevent death or great bodily injury to oneself or a third person or to prevent the commission of a forcible felony.

During the charge conference, trial counsel withdrew that request without discussion, later explaining at the motion for new trial hearing that

the way the case played out at trial, it was pretty much an accepted fact that [the victim] stayed there regularly. He was sort of like an extended member of the family And at the time of the incident, [the victim] was acting kind of crazy . .. which led to the incident, versus [the victim] being an intruder.

Trial counsel testified at the new trial hearing that he was familiar with the defenses of justification or self-defense and habitation, and knew that there was case law that allowed for the defense of habitation “whether the victim was a common guest or not.” Here, his recollection was that “originally [the victim] came at Mr. Harris with a stick, struck him on the nose, causing some minor injury And then after it diffused [sic] somewhat, [the victim] then became belligerent again and came after Mr. Harris, and Mr. Harris retreated and got a gun and shot him,” as opposed to the victim having come straight into the house. Trial counsel further explained, “[A]t the time of the incident [the victim] didn’t fit the classic pattern of being an intruder, which is why I settled with going solely with self-defense versus going with self-defense and then defense of habitation,” and made the decision to withdraw the charge of defense of habitation.

Harris first argues that his trial counsel’s withdrawal of the defense of habitation defense constituted deficient performance, satisfying the first prong of the Strickland test. He contends that the evidence could have supported a charge on defense of habitation, and therefore trial counsel’s failure to ask for such a charge constituted deficient performance. The issue here is not, however, whether “any evidence, however slight” would have supported the charge, as it was in Hendrix v. State, 268 Ga. App. 455, 456 (1) (602 SE2d 133) (2004) (no error in trial court’s sua sponte decision to charge the jury on self-defense, because some evidence supported it). Rather, the issue is whether trial counsel was deficient for focusing on what he thought was the stronger defense.

The statute on defense of habitation, OCGA § 16-3-23, provides:

Aperson 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 prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.

The key to this defense is that the resident defendant had to use force either to prevent or terminate an unlawful entry into or attack on the defendant’s residence. Additionally, the use of deadly force is only defensible if the victim entered or tried to enter “in a violent and tumultuous manner,” “unlawfully and forcibly,” or for the purpose of committing a felony

Here, Harris admitted to the police that the victim stayed with him periodically, that the victim had come over that night to drink, and that Harris had let him inside through the front door. Harris’s friend testified that when he came to the house, the victim was already back in the nephew’s bedroom. The nephew also testified that the victim was at the house “like every night” and sometimes stayed there. The record contains no evidence that the victim entered violently, unlawfully, forcibly, or with the intent to commit a felony

Harris argues that the victim’s “refusal to cross the threshold” and leave the premises, coupled with his continued efforts to assault “was a violent and tumultuous entry for the purposes of violence to persons within the home” and supported a charge on defense of habitation under OCGA § 16-3-23. But

[t]he statute is clearly concerned with the use of deadly force to counter entry, or attempted entry, into the home . . . , and there is no evidence that [the victim] made any threats against the habitation. Further, he was there as a guest of [Harris], who was a resident of the [house], and defense of habitation is not a defense available to a defendant when the victim is a guest in the home.

Stobbart v. State, 272 Ga. 608, 612 (4) (533 SE2d 379) (2000). See also Reese v. State, 289 Ga. 446, 447 (2) (711 SE2d 717) (2011) (no error in failing to charge defense of habitation absent evidence victim made unlawful entry into or attack on house, victim entered in violent manner, or defendant reasonably believed victim intended personal violence); Neverson, 324 Ga. App. at 325 (2) (defense of habitation unavailable when evidence established victim was present on porch as guest and refused to leave).

Harris points out that our Supreme Court found trial counsel ineffective for failing to request a charge on defense of habitation in Benham v. State, 277 Ga. 516, 517-518 (591 SE2d 824) (2004). But in Benham, the “victim” had been assaulting the defendant through an open window while attempting to enter the defendant’s car (which constitutes a “habitation” under OCGA § 16-3-24.1). Trial counsel testified that she requested only a charge on self-defense and not on defense of habitation because she wanted the jury to believe that the defendant had feared for her safety and was not “merely protecting her vehicle.” Id. at 517. The court found that trial counsel did not “appreciate that the defense of habitation may have justified the use of deadly force in this case even if that amount of force was not necessarily required to repel [the other woman’s] attack,” because the woman had attempted entry in a violent or tumultuous manner for the purpose of assaulting the defendant. Id. Thus, trial counsel’s failure “to adequately research and understand the defenses available to the defendant” constituted deficient performance. Id. at 517-518 (1).

Decided October 20, 2016

Brock Law, Chaunda F. Brock, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Similarly, in Robison v. State, 277 Ga. App. 133 (625 SE2d 533) (2006), a victim was entitled to use force against the defendant, who was initially in the house as a guest, because the defendant left the house when asked to, retrieved a meat cleaver from his car, and returned to chase the victim into his bedroom. Id. at 133-134. The defendant’s re-entry into the habitation was violent and tumultuous, and the victim reasonably believed he was returning to assault him. Id. at 134. In contrast, the victim in this case was invited into the house and never left. Because the uncontroverted evidence adduced at trial would not have authorized a charge of defense of habitation, the trial court committed no abuse of discretion in finding that trial counsel’s withdrawal of that charge was not deficient performance.

Absent a finding of deficient performance, we need not consider whether withdrawing the defense of habitation charge prejudiced Harris’s defense.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       Harris was also convicted of aggravated assault, which merged into the voluntary manslaughter conviction, two counts of possession of a firearm during the commission of a crime, one of which the trial court directed a verdict of acquittal, making a false statement, and tampering with evidence, and acquitted of possession of a firearm by a convicted felon.