Putnam County man appealing murder conviction stemming from dog’s care

Staff reportsMarch 27, 2013 

A long-simmering feud over the care given a dog is at the heart of a Putnam County man’s appeal of his murder conviction.

David Banks Brett shot Jose Garcia-Castro to death in 2011. He claimed his actions were in self-defense after the two clashed over the dog’s treatment.

The Georgia Supreme Court is scheduled to hear Brett’s appeal Monday.

Here’s what happened, according to a court summary of the case:

Brett accused Garcia of neglect after a dog died while it was in Garcia’s care. A witness in the case later testified that Brett had said Garcia needed to be “whooped” for not taking the dog to a veterinarian before it died.

Word of that threat got around the community, and on June 10, 2011, Garcia called Brett on the phone, saying he had heard that Brett wanted to fight him.

After the phone call, Garcia got a knife from the kitchen. Soon afterward, Brett arrived at a trailer where Garcia was visiting, and Garcia walked to the door.

Brett and Garcia, armed with a gun and a knife by then, had a quick exchange before Brett fired a single shot, killing Garcia.

While he was being arrested, Brett told the sheriff he had talked to Garcia on the phone and “told (Garcia) I was coming down there to kick his a--, and I went down there and he had a knife and I shot him.”

In the state’s opening statement at trial, the prosecutor said Brett blamed Garcia for the dog’s death, “got madder and madder until he started telling people he was going to kill (Garcia),” then “drove over there and killed” Garcia.

In the defense’s opening statement, Brett’s trial attorney told the jury the state would fail to meet its burden of proving Brett had intended to kill Garcia. His trial attorney’s sole defense was that Brett had been justified in killing Garcia out of self-defense, since Garcia had threatened him with a knife.

The jury found Brett guilty of murder and gun charges, and he was sentenced to life plus five years in prison.

Brett’s attorneys contend that his constitutional right to effective counsel was violated during his three-day trial and that he should be granted a new one. His trial attorney failed to object to inadmissible testimony that Brett often carried a gun and threatened people with it. That testimony undermined his defense that he was defending himself when he shot Garcia.

Brett’s trial attorney was also incompetent for failing to switch his strategy after the judge said he planned to instruct the jury that Brett would not be justified in using deadly force if he was engaged in “combat by agreement,” or mutual combat, unless he withdrew from the fight, Brett’s current attorneys argue.

“It was this failure by trial counsel to realize the initial self-defense theory was no longer valid -- as evidenced by his closing argument -- and to respond appropriately that rendered him constitutionally ineffective,” they said.

Brett’s trial attorney should have modified his trial strategy and discussed with Brett the only viable defense remaining -- voluntary manslaughter, a less serious charge than murder.

Brett’s claim of ineffectiveness has no merit, the state contends. Brett failed to prove that his trial attorney’s deficiencies so harmed his case that it probably would have had a different outcome had it not been for his errors.

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