In the Supreme Court of Georgia

Decided: April 19, 2021

S21A0089. ANTHONY v. THE STATE.

WARREN, Justice.

Terrone Anthony was convicted of malice murder, armed 

robbery, and possession of a firearm during the commission of a 

felony in connection with the shooting death of Kavader McKibben.1 

 1 The crimes were committed on December 4, 2009. On December 22, 

2009, a Fulton County grand jury indicted Anthony and his co-defendant, 

Aaron Jackson, for malice murder, felony murder predicated on armed robbery, 

felony murder predicated on aggravated assault, armed robbery, aggravated 

assault, and possession of a firearm during the commission of a felony. 

Anthony alone was indicted for possession of a firearm by a convicted felon and 

a third count of felony murder predicated on that firearm offense. At a joint

trial held from August 18 to 23, 2011, the trial court directed verdicts of not 

guilty for possession of a firearm by a convicted felon and the felony murder 

count predicated on that offense. A jury found Anthony guilty of all remaining 

counts and found Jackson not guilty on all counts. On August 25, 2011, the 

trial court sentenced Anthony to serve life in prison for malice murder, a 

concurrent term of 20 years for armed robbery, and a consecutive term of 5 

years for possession of a firearm during the commission of a felony. The two

remaining felony murder counts were vacated by operation of law, and the trial 

court merged the aggravated assault count into the malice murder count. 

Anthony timely filed a motion for new trial on August 25, 2011, which he 

amended through new counsel on September 11, 2019. The trial court denied 

the amended motion on October 22, 2019. Anthony timely filed a notice of 
2

On appeal, Anthony contends that his trial counsel provided 

constitutionally ineffective assistance in four ways. We disagree 

and affirm Anthony’s convictions.

The evidence presented at Anthony’s trial showed the 

following.2 On the evening of December 4, 2009, Anthony and an 

accomplice entered a liquor store where McKibben was working. 

Anthony—who was wearing a ski mask—pointed a firearm at 

McKibben while the accomplice searched McKibben’s pockets and 

took belongings from him and money from a cash register. 

McKibben’s co-worker, Roland Williams, began walking toward the 

back of the store, and Anthony followed. A shoot-out ensued shortly 

thereafter. The store owner pulled a gun and fired at Anthony, 

striking him in the leg. Anthony fired back, and in doing so struck

McKibben three times. As Anthony reached to open the door and 

 

appeal on November 19, 2019, which he amended the next day. The case was 

docketed in this Court to the term beginning in December 2020 and submitted 

for a decision on the briefs.

2 Anthony does not raise the sufficiency of the evidence on appeal. 

Therefore, under Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020), 

we do not consider sufficiency of the evidence sua sponte. 
3

leave, the owner shot Anthony in the arm. Anthony limped out of 

the store, holding his arm. A security guard across the street 

followed Anthony to a nearby house where Anthony stopped, having 

left behind a trail of blood from the liquor store. When police officers 

arrived, they found Anthony bleeding profusely, clad in the same 

camouflage jacket that witnesses described the shooter wearing. 

McKibben died at the liquor store from his wounds. Anthony and his 

friend, Aaron Jackson, were arrested. 

At trial, video surveillance of the shoot-out was played for the 

jury. Anthony testified and admitted that he entered the store while 

wearing a mask, held a gun while his accomplice took money from 

McKibben, ran toward the back of the store because he thought an 

employee was probably going to get a gun, and then fired his gun at 

the store owner after the owner shot Anthony in the leg. However, 

he denied that he planned to shoot anyone or intended to do so when 

he entered the liquor store. Anthony also testified that his 

accomplice was not Jackson, but another person. The trial court 

charged the jury on mutual combat and justification. The jury found 
4

Anthony guilty of malice murder, armed robbery, the firearm 

offense, and other offenses that were vacated by operation of law or 

merged for sentencing purposes, and found Jackson not guilty on all 

counts.

1. To prevail on a claim of ineffective assistance of counsel, a 

defendant generally must show that counsel’s performance was 

deficient and that the deficient performance resulted in prejudice to 

the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 

(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 

356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a 

defendant must demonstrate that his attorney “performed at trial in 

an objectively unreasonable way considering all the circumstances 

and in the light of prevailing professional norms.” Romer v. State, 

293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 

U.S. at 687-688. This requires a defendant to overcome the “strong 

presumption” that trial counsel’s performance was adequate.

Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation 

and punctuation omitted). To carry the burden of overcoming this 
5

presumption, a defendant “must show that no reasonable lawyer 

would have done what his lawyer did, or would have failed to do 

what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d 

221) (2016). “In particular, decisions regarding trial tactics and 

strategy may form the basis for an ineffectiveness claim only if they 

were so patently unreasonable that no competent attorney would 

have followed such a course.” Id. (citation and punctuation omitted). 

To satisfy the prejudice prong, a defendant must establish a 

reasonable probability that, in the absence of counsel’s deficient 

performance, the result of the trial would have been different. See

Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her 

burden of proving either prong of the Strickland test, the reviewing 

court does not have to examine the other prong.” Lawrence v. State, 

286 Ga. 533, 533-534 (690 SE2d 801) (2010).

2. Anthony’s first claim is that his trial counsel was ineffective 

because he did not seek a mistrial when the State discovered that 

the indictment mistakenly alleged that Anthony was a convicted 

felon. This claim fails, however, because the record shows that trial 
6

counsel made a reasonable, strategic decision to request a curative 

instruction and chose not to request a mistrial.

Anthony was charged with possession of a firearm by a 

convicted felon based on a prior burglary conviction and was charged 

with felony murder predicated on that firearm offense; the 

indictment charging those counts was read to the jury. However, 

shortly before the State rested its case at trial, the prosecutor 

discovered that Anthony was in fact a first-offender probationer and 

not a convicted felon. As a result, the prosecutor moved to nolle pros 

the two convicted-felon counts and asked the trial court for a 

curative instruction. Anthony, Jackson, and their attorneys 

discussed the issue, and Anthony’s counsel announced that he would 

not be requesting a mistrial, only a curative instruction. The trial 

court told Anthony that he had “to pick. I’m neutral as to which one, 

but I need an answer.” Anthony himself confirmed that he wanted 

to proceed in the way that his counsel announced: to request a 

curative instruction instead of a mistrial. The trial court then gave 

the following curative instruction that his counsel and Jackson’s 
7

counsel proposed:

[A]t the commencement of this trial, I read the indictment 

to you, and I read to you a charge that alleged that Mr. 

Terrone Anthony was a convicted felon and a charge of 

felony murder as to Mr. Terrone Anthony based upon the 

claim that he was a convicted felon. Let me now advise

you that the State has advised me that count 8 is a 

mistake. Terrone Anthony is actually not a convicted 

felon, so this count is now removed from your 

consideration in this indictment, as is count 3, which is 

the felony murder charge based upon that claim. You are, 

therefore, not to consider either of these charges. You are 

to disregard anything that I might have read to you or 

said to you associated with those charges because they 

are, in fact, a mistake by the State.

The trial court later directed verdicts of not guilty on the two counts 

at issue. At the hearing on the motion for new trial, Anthony 

testified that his trial counsel told him that a mistrial was “nothing,” 

that Anthony should not “go for” a mistrial, and that trial counsel 

“like[d] the jury that we selected.” Trial counsel testified that he 

and Jackson’s attorney “liked the jury” and that he thought the trial 

court “had cured” the problem with the indictment with its 

instruction.

Given that the convicted-felon counts of the indictment were 
8

read only once, that trial counsel wanted to try Anthony’s case in 

front of the jury that he had already selected, that Anthony agreed 

to trial counsel’s recommendation to seek a curative instruction and 

not a mistrial, and that the trial court informed the jury that the 

State had made a “mistake” in the charges because Anthony was not 

actually a convicted felon, Anthony has failed to show that his trial 

counsel’s decision not to request a mistrial was objectively 

unreasonable. See, e.g., Lynn v. State, 310 Ga. 608, 613-614 (852 

SE2d 843) (2020) (considering that a witness’s reference to a prior 

jury in the case was brief and counsel’s explanations for the decision 

not to move for mistrial were reasonable, defendant did not show 

that that decision was constitutionally deficient); State v. Goff, 308 

Ga. 330, 335 (840 SE2d 359) (2020) (given the fleeting, nonspecific 

nature of trial counsel’s reference to the defendant’s probation 

status, trial counsel was not objectively unreasonable when he did 

not move for a mistrial because he thought “‘we had a pretty good 

jury and a pretty good trial going’”).

3. Anthony claims that his trial counsel was ineffective 
9

because he put Anthony on the witness stand to admit that he was 

one of the people who robbed the liquor store and that he shot 

McKibben. We disagree.

The primary thrust of this claim is that trial counsel “forced” 

Anthony to testify and admit to his role in the robbery and shooting, 

even though Anthony wanted to present a defense that he had gone 

to the liquor store only to collect money that McKibben owed 

Anthony’s friend for drugs—a theory that he claims trial counsel did

not investigate. Anthony relies on his testimony at the hearing on 

his motion for new trial to support this claim. Prior to his testimony 

at trial, however, Anthony personally affirmed his decision to 

testify. And the trial court was authorized to credit trial counsel’s 

testimony at the hearing on Anthony’s motion for new trial that trial 

counsel recommended to Anthony that he not testify, and that 

counsel had never been informed about the alleged drug-debt theory 

Anthony later described. 

Although the trial court made no express factual findings or 

credibility determinations in its order denying Anthony’s motion for 
10

new trial, it was nonetheless “authorized to credit the testimony of 

[Anthony’s] counsel,” “[a]nd in the absence of explicit factual and 

credibility findings by the trial court, we presume implicit findings 

were made supporting the trial court’s decision.” Davis v. State, 306 

Ga. 430, 432-433 (831 SE2d 804) (2019) (citation and punctuation 

omitted). Accordingly, even though Anthony’s “testimony 

contradicted that of [his counsel], the trial court implicitly credited 

[counsel’s] version of events when it denied [Anthony’s] ineffective 

assistance claim, and we accept the trial court’s factual findings.” 

Williams v. State, 308 Ga. 532, 536 (842 SE2d 1) (2020). As a result,

Anthony has failed to show that his trial counsel’s performance was 

constitutionally deficient. See Brooks v. State, 305 Ga. 600, 607-608

(826 SE2d 45) (2019) (defendant failed to show that trial counsel 

performed deficiently by failing to inform him adequately of his right 

to testify, where the trial court found credible counsel’s testimony 

that she had advised defendant of his right to testify, that it was not 

in his best interest to testify, and that the decision to testify was 

ultimately his to make).
11

4. Anthony claims that his trial counsel was ineffective 

because counsel failed to argue meaningfully on Anthony’s behalf in 

closing argument. This claim also fails, however, because the record 

shows that counsel’s closing argument was strategic and was not 

objectively unreasonable.

To advance his argument, Anthony primarily relies on the first 

portion of his counsel’s closing argument: “I don’t have a defense. 

None whatsoever. Not at all. A defense is, I wasn’t involved. My 

client was involved. His gun, his bullet, his hand. He fired the fatal 

shot. I don’t have a defense. Not at all. None whatsoever.” Anthony 

contends that these words constitute an admission of counsel’s 

ineffectiveness and, more specifically, a demonstration that he did 

not intend to prepare a plausible defense like mutual combat and a 

failure to hold the State to its burden of proof. 

“An attorney’s decision about which defense to present is a 

question of trial strategy.” Hills v. State, 306 Ga. 800, 807 (833 SE2d 

515) (2019) (citation and punctuation omitted). “Unless the choice 

of strategy is objectively unreasonable, such that no competent trial 
12

counsel would have pursued such a course, we will not second-guess 

counsel’s decisions in this regard.” Id. at 807 (citation and 

punctuation omitted). With respect to closing argument, “[d]efense 

counsel is permitted wide latitude . . . and is not ineffective simply 

because another attorney might have used different language or 

placed a different emphasis on the evidence.” Merritt v. State, 310 

Ga. 433, 435 (851 SE2d 555) (2020) (citation and punctuation 

omitted). Moreover, “[a] closing argument is to be judged in the 

context in which it is made.” Styles v. State, 308 Ga. 624, 629 (842 

SE2d 869) (2020) (citation and punctuation omitted).

Here, a review of the whole closing argument, together with 

counsel’s testimony at the hearing on the motion for new trial, shows 

that trial counsel developed the following defense strategy after 

discussion with Anthony: conceding guilt of both armed robbery and 

the firearm charge in an effort to maintain credibility with the jury;

convincing the jury that Anthony lacked the intent to commit malice 

murder; and making a causation argument to negate the felonymurder charge because Anthony discharged his firearm only after 
13

completing the robbery and in the course of trying to protect himself. 

Thus, even though trial counsel disclaimed Anthony’s defense to 

armed robbery or the firearm charge, the full context of his closing 

argument makes clear that he was arguing that the jury should find 

Anthony not guilty of the more serious murder charges. Indeed, the 

record shows that at the time of closing argument, counsel’s choices 

were limited: the evidence of Anthony’s involvement in the armed 

robbery and the shooting was overwhelming, and Anthony had

insisted on testifying and had specifically admitted his involvement

in the robbery and shooting. Moreover, in contrast to Anthony’s 

testimony at the motion for new trial hearing, trial counsel testified 

that Anthony never said that he entered the liquor store to help a 

friend confront McKibben about a drug debt, thus undercutting the

defense theory that Anthony claimed he wanted to advance at trial.

Under these circumstances, trial counsel’s strategic decisions 

about Anthony’s defense and how to argue it in closing were not 

objectively unreasonable and therefore did not amount to 

constitutionally deficient performance. See, e.g., Blackwell v. State, 
14

302 Ga. 820, 825-826 (809 SE2d 727) (2018) (it is not patently 

unreasonable for trial counsel to make a strategic decision to base 

the defense on the evidence at trial and on the defendant’s consistent 

account, rather than risk losing credibility with jury); Muller v. 

State, 284 Ga. 70, 71 (663 SE2d 206) (2008) (it was a reasonable 

strategy to argue that the defendant lacked the malicious intent 

necessary to support a malice-murder conviction when any other 

defense was problematic).3 

5. Finally, Anthony claims that his trial counsel was 

ineffective by explicitly conceding in closing argument Anthony’s 

guilt of armed robbery and, as a result, implicitly conceding his guilt 

of felony murder. We again disagree. 

To support his claim, Anthony points to the following portion 

of counsel’s closing argument:

 3 We note that because no convictions were entered on Anthony’s felony 

murder charges, his ineffective assistance claims are moot to the extent they 

pertain to the portions of trial counsel’s closing argument that reference felony 

murder. See Darville v. State, 289 Ga. 698, 702 (715 SE2d 110) (2011) 

(defendant’s contention that counsel was ineffective by failing to object to the 

omission of a particular jury instruction on felony murder was moot because 

defendant was found guilty of malice murder and no conviction was entered on 

the felony murder charge).
15

And he’s wrong for that and guilty of armed robbery, so 

we don’t even have to talk about that. So when you go 

back in the back, you just check that off; guilty of armed 

robbery. That’s Count Number 5. He’s guilty of 

possession of a firearm during the commission of a felony. 

Just check that off. He’s guilty of that. He told you that.

Anthony’s complaint about this concession is closely related to the 

preceding claim that we considered and rejected above in Division 4. 

Here, however, Anthony more specifically argues that conceding 

guilt of armed robbery was tantamount to a guilty plea that was

entered without his consent or a valid waiver of his constitutional 

rights, and that this concession was improper and presumptively 

prejudicial.

In Florida v. Nixon, 543 U.S. 175, 187 (125 SCt 551, 160 LE2d 

565) (2004), the United States Supreme Court made clear that 

although trial counsel “undoubtedly has a duty to consult with the 

client regarding ‘important decisions,’ including questions of 

overarching defense strategy,” id. at 187 (citing Strickland, 455 U.S. 

at 688; emphasis supplied), “trial counsel is not obligated to obtain 

client consent as to decisions regarding trial strategy,” Hendrix v. 
16

State, 298 Ga. 60, 64 n.3 (779 SE2d 322) (2015) (citing Nixon and 

offering as examples of decisions requiring client consent “decisions 

regarding whether to plead guilty, whether to waive a jury trial, 

whether to waive the right to testify, and whether to pursue an 

appeal”) (emphasis in original). Counsel’s strategic choice to 

concede guilt therefore “is not impeded by any blanket rule 

demanding the defendant’s explicit consent,” Nixon, 543 U.S. at 192; 

likewise, counsel “is not per se ineffective for adopting a strategy to 

concede guilt, even if his client does not expressly consent to that 

strategy,” Harris v. State, Case No. A20A2054, 2021 WL 854897, at 

*5 (Mar. 8, 2021) (citing Nixon). Cf. McCoy v. Louisiana, ___ U.S. 

___, ___ (138 SCt 1500, 1510, 1511, 200 LE2d 821) (2018) (holding 

that “counsel may not admit her client’s guilt of a charged crime over 

the client’s intransigent objection to that admission,” and “counsel’s 

admission of a client’s guilt over the client’s express objection is error 

structural in kind,” not requiring any showing of prejudice). To that 

end, counsel’s strategic decision to concede guilt is typically 

reviewed under the familiar Strickland standard, see Nixon, 543 
17

U.S. at 192, and if undisputed evidence of a defendant’s guilt on a 

lesser charge has been presented at trial, it is not an objectively 

unreasonable trial strategy to concede guilt of that offense “in an 

effort to avoid a conviction on the more serious murder charges.” 

Favors v. State, 296 Ga. 842, 846 (770 SE2d 855) (2015). Applying 

the relevant principles of an attorney’s duty to consult and analyzing 

trial counsel’s strategy through the lens of Strickland, the Supreme 

Court in Nixon rejected the defendant’s claim that trial counsel’s 

concession of guilt was the “functional equivalent of a guilty plea” 

because the defendant “retained the rights accorded a defendant in 

a criminal trial.” Nixon, 543 U.S at 188. 

So too here. The record shows that trial counsel’s concession of 

Anthony’s guilt of armed robbery was part and parcel of his trial 

strategy—which, as we have already explained above, was not 

objectively unreasonable—of maintaining credibility with the jury,

convincing the jury that Anthony lacked the intent to commit malice 

murder, and making a causation argument on the felony-murder 

charge. That strategy did not require Anthony’s consent, and
18

Anthony made no “intransigent objection” to counsel’s concession of 

guilt of armed robbery; to the contrary, counsel’s defense strategy

was wholly consistent with Anthony’s own testimony at trial. See 

Nixon, 543 U.S. at 187, 192. Cf. McCoy, ___ U.S. at ___ (138 SCt at 

1510). Moreover, just as in Nixon, counsel’s concession of Anthony’s 

guilt of lesser offenses is not tantamount to a guilty plea, because it

occurred in the context of a jury trial, and only after the State was

required to present evidence establishing the essential elements of 

the crimes with which Anthony was charged, the defense was

afforded the right to confront and cross-examine witnesses for the 

prosecution, and Anthony made an informed decision to waive his 

privilege against self-incrimination. See Nixon, 543 U.S. at 188-189. 

In light of the overwhelming evidence of Anthony’s guilt of the lesser 

offenses of armed robbery and the firearm offense, it was not an 

objectively unreasonable trial strategy for counsel to concede guilt 

of those offenses in an attempt to avoid Anthony being convicted of
19

a more serious murder charge. See Favors, 296 Ga. at 846.4 

Judgment affirmed. All the Justices concur.

 4 Notably, trial counsel’s concession—to which Anthony did not object—

could not amount to the kind of structural error that could raise a presumption 

of prejudice. See Nixon, 543 U.S. at 193. Cf. McCoy, ___ U.S. at ___ (138 SCt 

at 1511).

We further note that Anthony’s argument that trial counsel implicitly 

conceded Anthony’s guilt of felony murder is moot because no convictions were 

entered on the felony-murder charges. See Darville, 289 Ga. at 702.