Demarcus West v. State

• Court: Court of Appeals of Georgia
• Decided: September 26, 2023
• Docket: A23A1113
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., GOBEIL, J., and SENIOR JUDGE FULLER

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. https://www.gaappeals.us/rules

September 26, 2023

In the Court of Appeals of Georgia A23A1113. WEST v. THE STATE.

FULLER, Senior Judge.

Following the denial of his motion for new trial, Demarcus West appeals his

convictions of aggravated sodomy and other crimes. West contends that he received

ineffective assistance of trial counsel because his lawyer failed to object when the

prosecutor, in closing argument, (a) expressed his opinion about the veracity of the

victim and (b) improperly commented on his role as a prosecutor. We disagree and

affirm.

Viewed in the light most favorable to the jury verdict,1 the record shows that

the victim and her son lived on the third floor of an apartment building. One morning

1 “On appeal from a criminal conviction, the defendant is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict.” Johnson v. State, 304 Ga. 610, 612 (1) (b) (820 SE2d 690) (2018). in October 2016, the victim got her son ready for school and took him down to the

sidewalk to meet his friends to walk to school. The victim left her apartment door

unlocked and was gone for about three minutes. When she returned, she saw the light

in her bathroom turn off, and she went to investigate.

The victim pushed on the bathroom door but could not open it because there

was a man behind it. She saw the man in the bathroom mirror, did not recognize him,

and tried to run, but the man grabbed her from behind, choked her, and dragged her

by her hair into the living room. There, he ripped off her shorts and flipped her shirt

over her head so that she could not breathe. The man then removed her shirt, leaving

her naked. He asked her if she had “ever been f--ked in [her] ass,” punched her face

repeatedly, and kicked her until she began to lose consciousness. He put his hand on

her vagina, stuck his fingers in her mouth, and licked her breast. Then he pinned her

on the floor and put his penis in her mouth. The victim fought back by punching the

man in the face, and he jumped off of her and ran out the front door.

Still naked, the victim crawled to her balcony, where she screamed for help and

tried to jump over, afraid that the man would return and kill her. Two neighbors and

a retired police officer who was in the area heard the victim’s screams, came to help,

and called 911. They described the victim as “really scared,” “shak[en] up,” and

2 crying uncontrollably. The victim was taken to the hospital, where medical personnel

completed a sexual assault kit and noted scratches on her thigh, abrasions on her face

and both knees, swelling on her lip, and scratches and bruises on her arm. A nurse

testified that these injuries were consistent with the victim’s account of events. Swabs

taken from the victim’s body were later submitted for forensic testing, which showed

the presence of seminal fluid in the victim’s mouth2 and West’s DNA on her breast.

Inside the victim’s apartment, “things [were] lying around the floor like they

had been knocked over,” and “ripped” pieces of the victim’s shorts were strewn “all

over.” The victim’s shirt was missing, but surveillance footage from the apartment

building showed a man walking away from the complex at the time of the incident

with a shirt slung over his shoulder that matched the description of the victim’s shirt.

Based on the victim’s description of her attacker and the services of a forensic sketch

artist, police compiled photographic line-ups of potential suspects, and the victim

identified West as her attacker.

West was charged with aggravated sodomy, attempted rape, sexual battery,

burglary, and aggravated assault by strangulation. The case proceeded to trial, where

2 Because this seminal fluid did not contain sperm cells, it was not tested for DNA.

3 the victim again identified West as her attacker. West elected not to testify and

presented no evidence in his defense. In closing argument, his attorney maintained

that the victim’s account was not credible, while the prosecutor countered that it was.

The jury found West guilty of all charges. He filed a motion for new trial, raising

claims of ineffective assistance of trial counsel. The trial court denied the motion, and

this appeal followed.

West argues that he received ineffective assistance of trial counsel because his

lawyer did not object to the prosecutor’s comments in closing argument about the

credibility of the victim and his prosecutorial role. We find no ineffective assistance.

To prevail on a claim of ineffective assistance of counsel, a defendant must

show both that his trial attorney’s performance was deficient and that this deficient

performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687

(III) (104 SCt 2052, 80 LE2d 674) (1984). Deficient performance requires a showing

that trial counsel “made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Prejudice requires

demonstrating “a reasonable probability that, but for counsel’s errors, the outcome of

the trial would have been different.” Smith v. State, 296 Ga. 731, 733 (2) (770 SE2d

610) (2015). “If either Strickland prong is not met, [a reviewing court] need not

4 examine the other prong.” Walker v. State, 312 Ga. 232, 239 (4) (862 SE2d 285)

(2021) (citation and punctuation omitted).

(a) In his closing argument, the prosecutor told the jury, “[The victim]’s been

honest with us and she’s been honest with the police.” Later, the prosecutor said,

“Why do we believe [the victim]? Because we have every reason to and no reason not

to. She has no reason to lie.” Defense counsel did not object to these statements. West

argues that counsel’s failure to object amounted to ineffective assistance, but we do

not agree.

At the hearing on West’s motion for new trial, defense counsel explained that

a key focus of his trial strategy was to cast doubt on the victim’s credibility. Counsel

testified that, because he “went on for about a half an hour commenting on [the

victim’s] v[e]racity” in his own closing argument, he considered that topic to be “fair

game” and thus found nothing wrong with the prosecutor’s comments. Counsel

elaborated: “I think closing argument is built for that sort of thing. That’s how I

argue; that’s how [the prosecutor] argues.”

“Closing arguments are judged in the context in which they are made.” Pitts v.

State, 323 Ga. App. 770, 774 (3) (747 SE2d 699) (2013) (citation and punctuation

omitted). “A prosecutor is granted wide latitude in the conduct of closing argument,

5 the bounds of which are in the trial court’s discretion. Within that wide latitude, a

prosecutor may comment upon and draw deductions from the evidence presented to

the jury.” Arnold v. State, 309 Ga. 573, 577 (2) (a) (847 SE2d 358) (2020) (citation

and punctuation omitted). “While it is improper for counsel to state to the jury

counsel’s personal belief as to the veracity of a witness[,] it is not improper for

counsel to urge the jury to draw such a conclusion from the evidence.” Jones v. State,

361 Ga. App. 839, 842 (2) (b) (865 SE2d 836) (2021) (citation and punctuation

omitted); see also Moody v. State, 273 Ga. 24, 27 (4) (537 SE2d 666) (2000)

(prosecutor may properly “urge[ ] the jury to make a deduction about veracity from

the facts”).

Here, the prosecutor did not say that he personally believed the victim was

being truthful. Instead, considered in the full context of his closing argument, the

prosecutor urged the jury to find that the victim was credible based on the evidence,

including the consistency of her accounts to hospital personnel, law enforcement, and

the jury; her willingness to jump from a third-story balcony to escape her attacker; her

physical injuries; the presence of West’s DNA on her body; and her lack of a motive

to lie. Further, the prosecutor made his comments in response to West’s main trial

defense — that the victim’s account was not believable. Under these circumstances,

6 the comments in question were permissible. See Moody, 273 Ga. at 27 (4); Jones, 361

Ga. App. at 842 (2) (b). See also Johnson v. State, 271 Ga. 375, 384 (15) (b) (519

SE2d 221) (1999) (finding no error where “[t]he State’s argument that ‘no witnesses

lied’ was in response to defense counsel’s claim . . . that State witnesses had lied, and

the comment did not constitute the prosecutor’s personal opinion regarding the

veracity of the witnesses”). Because the prosecutor’s comments were not improper,

defense counsel did not render deficient performance by failing to object to them. See

Gaston v. State, 307 Ga. 634, 640 (2) (b) (837 SE2d 808) (2020).

Even if defense counsel’s failure to object had amounted to deficient

performance, West cannot show prejudice for two reasons. First, both the prosecutor

and the trial court told the jurors that determining the credibility of witnesses was

their responsibility. Second, the evidence against West was overwhelming. As the

prosecutor noted in his closing argument, the victim gave consistent accounts of the

attack to multiple people and later identified West as her attacker; her neighbors and

a police officer in the vicinity heard her screams and saw her torn clothing;

surveillance footage from the apartment complex showed a man leaving the complex

with what appeared to be the victim’s shirt; the victim had physical injuries consistent

with her account of the attack; and West’s DNA was found on her body. Under these

7 circumstances, West cannot show prejudice. See Lofton v. State, 309 Ga. 349, 366 (6)

(b) (iv) (846 SE2d 57) (2020) (finding no prejudice “[g]iven the trial court’s [jury]

instructions and the strong evidence of Appellant’s guilt”).

(b) West also contends that his trial counsel rendered deficient performance by

failing to object to this comment that the prosecutor made about his role in the

judicial system:

And the reason why there ha[ve] been numerous defenses presented is because [West] knows I’m comfortable. This is my city that I have sworn an oath to protect and he knows I’m comfortable. And when they see me coming, they start running. But I always catch them. And when I catch them, I take them down for each and every one of you to see so that one of you will have the privilege of standing up and proclaiming that man guilty five times over.

You see, when he went into that apartment, that was his arena because as I’m sure some of you are aware, sexual assault happens in seclusion. And he knew that because he had watched her leave and he knew no one else was present. That was his arena. He was a predator and [the victim] was a prey.

This is my arena. I’m the predator. He’s the prey. I’m coming for you.

8 West argues that these remarks “were inappropriate and meant only to aggrandize the

State and make personal comments about [West].” He also argues that the comments

were “inflammatory and argued facts not in evidence” and “implied that if [West] was

not guilty the State would not be [at trial] arguing the case.” Finally, West contends

that the prosecutor “sat in the witness box while making these totally inappropriate

comments,” thereby “add[ing] weight to the[ir] truth.” Again, we find no ineffective

assistance.

In analyzing whether defense counsel’s failure to object to potentially improper

argument by the prosecutor constituted deficient performance,3 our task is “to

determine whether, in the throes of the closing argument, no reasonable attorney,

listening to the inflection of the speaker’s voice and judging the juror’s reactions,

would choose to remain silent instead of objecting and calling attention to the

improper argument.” Braithwaite v. State, 275 Ga. 884, 886 (2) (b) (572 SE2d 612)

3 Citing Nguyen v. State, 296 Ga. App. 853 (676 SE2d 246) (2009), the trial court found that the prosecutor’s comments were not improper. In Nguyen, the prosecutor referred in closing to “the TV show To Catch a Predator” and called the defendant a predator. Id. at 858-859 (2) (b). We found that these comments were allowable because they were “derived from evidence properly before the jury” and that defense counsel’s failure to object was not ineffective assistance. Id. at 859 (2) (b) (citation and punctuation omitted). In light of our conclusion that West’s trial attorney’s failure to object was a reasonable strategic decision that did not prejudice West, we need not decide whether the comments in question were improper.

9 (2002). “Trial tactics and strategy, no matter how mistaken in hindsight, are almost

never adequate grounds for finding trial counsel ineffective unless they are so

patently unreasonable that no competent attorney would have chosen them.” Pitts,

323 Ga. App. at 775 (3) (citation and punctuation omitted). Thus, when counsel

articulates a strategic reason for not objecting, “we must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Maurer v. State, 320 Ga. App. 585, 593 (6) (e) (740 SE2d 318) (2013)

(citation and punctuation omitted).

At the hearing on West’s motion for new trial, defense counsel testified that he

felt “[t]he whole predator, prey thing was . . . kind of funny,” “very dramatic,” and

“silly.” Counsel “didn’t think it was very effective.” He considered objecting, but

decided that an objection “might have made it more effective” and “might have made

it look like [he] was trying to shut [the prosecutor] down, which . . . does not work

with the jury.” Because this strategy was not patently unreasonable, “we will not use

hindsight to judge” it. Braithwaite, 275 Ga. at 885 (2) (b). See Smith v. State, 288 Ga.

348, 356 (10) (b) (703 SE2d 629) (2010) (finding no ineffective assistance in the

failure to object to the prosecutor’s closing argument because it was “reasonable for

[defense counsel] to pursue a strategy that would allow the potentially inappropriate

10 antics of the prosecutor to backfire against her”). Further, as explained above, even

if counsel’s failure to object constituted deficient performance, West cannot show

prejudice in light of the overwhelming evidence of his guilt.

(c) West urges us to apply the cumulative error rule here, but “[o]ur rulings

above that [West] has not established any instances of deficient performance . . .

render it unnecessary to address his cumulative-error claim.” Bell v. State, 366 Ga.

App. 743, 749 (3) (f) (884 SE2d 129) (2023) (citation and punctuation omitted).

For these reasons, West’s claim of ineffective assistance of counsel fails, and

the trial court did not err by denying his motion for new trial.4

Judgment affirmed. Doyle, P. J., and Gobeil, J., concur.

4 For the first time on appeal, West complains about another comment by the prosecutor: “[I]t’s my job as a prosecutor to make sure that I speak the truth. And when I come before you, I better make sure I know what that truth is. And the truth is obvious in this case.” However, as West did not challenge this comment in the trial court, we will not consider it for the first time on appeal. See Reeves v. State, 329 Ga. App. 470, 476 (4) (b) (765 SE2d 407) (2014) (finding “nothing for us to review” where the defendant made a different ineffective assistance argument on appeal than the one he made in the trial court).