CALHOUN V. THE STATE (S19A1411)
A young man who was fleeing police when his car flipped over, killing his young female
passenger, is appealing his felony murder conviction and life prison sentence, arguing that a
Georgia State Patrol Officer’s use of a special maneuver was the cause of the wreck and the
woman’s death.
FACTS: On May 14, 2013, Thanquarius Rashawn Calhoun was speeding in a Toyota
Corolla on Interstate 85 in Banks County when he passed a Banks County Sheriff’s Deputy
while driving at more than 90 miles per hour in a 70-mph zone. The deputy, who was in an
unmarked SUV, activated his blue lights and attempted to initiate a traffic stop. Inside
Calhoun’s car was 19-year-old Marion Shore, whose mother owned the car, and Relpheal
Morton, another passenger seated in the back. Calhoun ignored the deputy and kept going,
crossing into Franklin County. The Banks County deputy contacted Franklin law enforcement
who joined the pursuit along with officers from the Georgia State Patrol. All officers drove
patrol cars with lights activated, wore uniforms, and displayed badges. As Calhoun increased
his speed in excess of 100 miles per hour and weaved in and out of traffic, officers attempted
several different methods of stopping the pursuit, including attempting to “box in” Calhoun and
deploying spike strips to deflate his vehicle’s tires. However, Calhoun eluded the officers and
continued to drive erratically, weaving in-and-out of traffic, and at times accelerating to speeds
greater than 110 miles per hour. In all, he would cover 21 miles before the chase would come to
an end, at one point speeding through a construction zone.
Officers spoke with one another on car-to-car radio and decided they needed to stop Calhoun’s car due to the danger to the public. Fourteen minutes after the pursuit began and after officers found a stretch of interstate in Franklin County with no traffic and clear areas around the road, Georgia State Patrol Trooper Donnie O’Neal Saddler performed a Precision Intercept Technique (“PIT”) maneuver, which is “a pursuit tactic by which a pursuing car can force a fleeing car to abruptly turn sideways, causing the driver to lose control and stop.” Ideally, the officer pulls alongside the fleeing vehicle so the officer’s front bumper is just ahead of the other vehicle’s back bumper. Matching the fleeing driver’s speed, the officer then makes a quick quarter turn of the wheel toward the fleeing car, touching but not ramming it. The PIT maneuver is designed to cause the fleeing car to spin out and safely stop.
When Saddler performed the maneuver, the Corolla Calhoun was driving at about 111 miles per hour spun clockwise, careened off the side of the highway into an embankment, and rolled over several times before coming to a stop. Calhoun was ejected from the car but survived. Morton, the backseat passenger, also survived. But Shore, who was sitting in the front passenger seat and wearing her seatbelt, wound up hanging partially out the passenger window and was killed as the car rolled over her.
Following a March 2015 trial, the jury found Calhoun guilty of felony murder, vehicular homicide, felony fleeing or attempting to elude a police officer, and a number of misdemeanors, including reckless driving, speeding, and driving with a suspended license – all in connection with the death of Marion Shore. He was sentenced to life in prison. In April 2015, representing himself pro se, Calhoun filed a motion for new trial. After he was represented by an attorney, who filed a supplemental motion for new trial, the trial court held a hearing and denied the motion. Calhoun’s attorney then appealed to the state Supreme Court, asking the high court to remand the case for further hearing so Calhoun could raise grounds of ineffective assistance of trial counsel as grounds for reversing his convictions. The Supreme Court granted Calhoun’s motion and remanded the case to the trial court for consideration of the claims. In March 2017, Calhoun’s attorney filed a subsequent motion for new trial adding the issue of ineffective assistance of counsel. The trial court held a hearing on the motion and denied it on April 1, 2019. Calhoun now appeals again to the state Supreme Court.
ARGUMENTS: Calhoun’s attorneys for his appeal argue that the trial court erred by concluding that his trial attorney’s performance was not deficient, and that Calhoun did not establish a reasonable probability that, but for the attorney’s deficiencies, the outcome of his trial would have been different. The trial attorney for the then 21-year-old Calhoun “did next to nothing to investigate, prepare, or present Calhoun’s defense,” the attorneys argue in briefs. “Calhoun was deprived of his constitutional right to effective assistance of counsel and is serving a life sentence as a result. Trial counsel put up no evidence in defense and prepared neither himself nor the jury to address the key factual issue in the case: whether it was unreasonable – and therefore an intervening cause – for the Georgia State Patrol to use deadly force on an innocent passenger in Calhoun’s car by executing the Precision Immobilization Technique (“PIT”) maneuver at 111 miles per hour to stop Calhoun, whose only underlying offense was speeding. He cross-examined fewer than half of the State’s 13 witnesses. He did no research and asked for no expert assistance.” “The evidence shows that Calhoun’s counsel performed his duties at trial in an objectively unreasonable way. The independent and cumulative effect of trial counsel’s errors, which fall well outside the broad range of reasonable professional conduct, severely prejudiced Calhoun, entitling him to a new trial,” Calhoun’s attorneys argue.
The State, represented by the District Attorney’s and Attorney General’s offices, argues that Calhoun received effective assistance of counsel from his trial attorney, and the Franklin County court’s decision should be upheld. Calhoun’s trial attorney, who had more than 20 years of experience in practicing law and had tried many criminal cases, was not ineffective for failing to investigate the use of the PIT maneuver, hire an expert to testify about the maneuver, or request jury instructions on proximate or intervening cause. All three alleged failures relate to Calhoun’s allegation that his attorney failed to put forth a certain defense. But decisions “regarding which particular defense to raise are trial strategy within the discretion of trial counsel,” the State argues in briefs. Furthermore, a trial attorney cannot be ineffective for failing to pursue a defense that is not authorized by the law. Under Georgia Code § 40-6-6 (d) (2), “when a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect…kills any person during the pursuit, the law enforcement officer's pursuit shall not be the proximate cause or a contributing proximate cause of the…death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer's decision to initiate or continue the pursuit.” Because Calhoun has not proven that Trooper Saddler acted with reckless disregard for proper law enforcement procedures, his actions cannot, by statute, be the proximate or contributing proximate cause for the death of Marion Shore, the State contends. “That cause, therefore, falls squarely onto the shoulders of Appellant Thanquarious Calhoun who created the dangerous situation which resulted in the death of Marion Shore.” The State argues that none of Calhoun’s other allegations of ineffective assistance of counsel has merit.
Attorneys for Appellant (Calhoun): Lucas Westby, Erika Birg, Brandon Moulard, Shaniqua
Singleton, Elizabeth Falconer
Attorneys for Appellee (State): D. Parks White, District Attorney, Brian Atkinson, Chief
Asst. D.A., Christopher Carr, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Michael Oldham, Asst. A.G.
