BENHAM, Justice.
Frances C. Kuo, Stephen T. Maples, Decatur, for appellant.
Patricia B. Attaway Burton, Sr. Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, Deborah D. Wellborn, Asst. Dist. Atty., Robert D. James Jr., Dist. Atty., Dekalb County District Attorney's Office, for appellee.
Opinion
BENHAM, Justice.
On April 4, 2011, appellant Antwuan Crayton shot and killed Curtis Lee Mack, III. We affirm his convictions.
The facts, viewed in a light most favorable to sustaining the verdicts, show that appellant was sitting in his green truck when Mack approached him about driving too fast down the street earlier in the day. Witnesses testified that just a few hours prior to the shooting, appellant said he was going to “bury one of them” and the witnesses took that to be a threat against Mack and/or one of his friends who had witnessed appellant's reckless driving earlier in the day. Immediately prior to the shooting, Mack and appellant began to argue. Witnesses saw Mack beat his hands on appellant's truck and heard him use profanities. Appellant, who was a convicted felon and prohibited from having a gun, reached for a gun inside his truck and shot Mack five times. The medical examiner testified that Mack was 1.5 to 3 feet away when he was shot. Mack later died from his injuries which included bullet wounds to the torso that traversed major organs including Mack's heart, lung and liver. After the shooting, appellant fled the scene and threw the gun away in a body of water. About eight days later, appellant turned himself in to police and surrendered his truck which contained seven shell casings inside.
Appellant admitted to authorities and testified at trial that he shot the victim, but said he acted in self-defense. According to appellant, Mack revealed a gun in the waistband of his pants while trying to get into his truck and that this action by Mack caused appellant to fear for his life. No gun was recovered from Mack's body and other eyewitnesses testified that Mack was unarmed. Appellant testified that he kept his gun with him to protect himself from being car-jacked. Appellant also identified a picture of the gun he used to shoot the victim. The picture matched witnesses' description of the gun as being a black semiautomatic hand gun with an extended clip. Appellant also admitted he was guilty of being a convicted felon in possession of a gun.
1. Appellant argues that the State failed to disprove appellant's affirmative defenses of self-defense and defense of habitation beyond a reasonable doubt. “The determination of whether the State has met its burden to disprove the affirmative defense is for the jury, and the jury's determination in the present case that the burden was met was supported by the evidence.” (Citation omitted.) Bentley v. State, 261 Ga. 229(2), 404 S.E.2d 101 (1991). Here, the State presented evidence showing appellant shot the victim, evidence showing the victim was unarmed, and evidence showing the victim was 1.5 to 3 feet away from the gun when appellant fired it. While appellant testified the victim was armed at the time of the altercation,
the jury was free to weigh appellant's credibility as it did the credibility of the other witnesses, and it was free to reject appellant's affirmative defenses. See
Hoffler v. State, 292 Ga. 537(1),
739 S.E.2d 362 (2013). See also
Glenn v. State, 296 Ga. 509(1),
769 S.E.2d 291 (2015). The evidence as summarized above was otherwise sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses for which the jury returned verdicts of guilt.
Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781,
61 L.Ed.2d 560 (1979). Accordingly, this enumeration of error is without merit.
2. Appellant alleges that the prosecutor made a misstatement of the law on felony murder predicated on possessing a firearm by a convicted felon during his opening statement. Trial counsel never objected to this portion of the prosecutor's opening statement. Inasmuch as there was no contemporaneous objection made, this allegation of error has not been preserved for review on appeal. See Phillips v. State, 285 Ga. 213(3), 675 S.E.2d 1 (2009). Also, there is no authority for the application of plain error review to comments made by lawyers during opening statements. Rather, we apply plain error review to the trial court's jury instructions (see OCGA § 17–8–58(b)) and to the trial court's rulings on evidence. See OCGA § 24–1–103(d). Opening statements are neither instructions by the trial court nor evidence. Accordingly, in the absence of an objection, this allegation of error will not be considered by the Court.
3. Appellant alleges counsel was ineffective when he failed to object to the comments made by the prosecutor during opening statements and when he failed to move to suppress the search of appellant's cell phones. In order to prevail on a claim of ineffective assistance of counsel, appellant
must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct.
(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34(4), 644 S.E.2d 837 (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court. Wright v. State, 291 Ga. 869, 870(2), 734 S.E.2d 876 (2012).
a. During his opening statement, the prosecutor made the following comments:
The defendant is charged with malice murder, felony murder during an aggravate[d] assault, felony murder, possession of a firearm by a felon, ... and possession of a gun during a crime....Listen carefully as you hear the witnesses testify. Malice murder simply means he deliberately intended to kill [the victim]. Felony murder means he killed [the victim] during a shooting where he didn't maybe shoot him in the leg and they bleed out or something like that, without the intent to kill but you're committing an aggravated assault and they die. And the third one is
felony murder by possessing a firearm by a convicted felon alone is sufficient to convict him of felony murder. Him being a convicted felon, having a gun and using that gun to kill somebody, regardless of the circumstances, that is felony murder itself.
Appellant contends that the italicized language is a misstatement of law and that his trial counsel was deficient for failing to object. While trial counsel did not make an objection, he did address the prosecutor's comments through his own opening statement. Specifically, trial counsel said in his opening: