                              SECOND DIVISION
                                BARNES, P. J.,
                            BOGGS and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 20, 2016


In the Court of Appeals of Georgia
 A16A0970. HARRIS v. THE STATE.

      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 20 years to serve, followed by

5 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.1 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

      1
        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.

                                           2
“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 towards

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

                                           3
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

                                           4
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

                                           5
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.”)



                                          6
      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 (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. “[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).



                                          7
      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


                                          8
      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,

                                          9
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:

      A person is justified in threatening or using force against another when
      and to the extent that he or she reasonably believes that such threat or
      force is necessary to 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:


                                          10
       (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


                                          11
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 v. State, 324 Ga. App. at 325 (2) (defense of




                                         12
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).

      Similarly, in Robison v. State, a victim was entitled to use force against the

defendant, who was initially in the house as a guest, because the defendant left the

                                          13
house when asked to, retrieved a meat cleaver from his car, and returned to chase the

victim into his bedroom. 277 Ga. App. 133, 133-134 (625 SE2d 533) (2006). 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 authorize 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.




                                          14
