303 Ga. 643 FINAL COPY
S18A0333. SMITH v. THE STATE.
GRANT, Justice.
Deion Smith was found guilty of malice murder and arson in connection
with the violent death of 15-year-old Jasmine Moore.1 Smith now appeals,
arguing that his trial counsel was ineffective for failing to challenge the
sufficiency of the indictment and failing to thoroughly cross-examine Smith’s
co-defendant, Tyberius Murchinson. Because we find that Smith’s trial
counsel was not constitutionally ineffective, we affirm.
1 Moore was killed on August 9, 2009. On August 20, 2014, Smith and Tyberius Murchinson were indicted by a Bacon County grand jury for malice murder, felony murder predicated on aggravated assault, and arson in the first degree. Murchinson pled guilty to aggravated assault and arson before trial. At the conclusion of a trial held April 19-20, 2016, the jury found Smith guilty of all three counts of the indictment. The trial court sentenced Smith to life in prison for murder and 15 years consecutive for arson. Although the trial court purported to merge the felony murder count with the malice murder count, the felony murder count actually was vacated by operation of law. See McClendon v. State, 299 Ga. 611, 618-619 (791 SE2d 69) (2016). On April 25, 2016, Smith filed a motion for new trial, which he amended on July 14, 2017 through new counsel. After a hearing, the trial court denied the motion for new trial on July 27, 2017. Smith filed a timely notice of appeal on August 24, 2017, and the case was docketed in this Court for the term beginning in December 2017 and submitted for a decision on the briefs. I.
Viewed in the light most favorable to the verdicts, the evidence presented
at trial showed the following. Shortly before her death, Moore told her cousin,
Murchinson’s sister Teyonka, that she might be pregnant with Smith’s child.
At the time, Teyonka herself was pregnant by Smith. After Smith became
aware that Moore might be pregnant, he discussed the situation with
Murchinson, telling him that he wanted to kill Moore.
At the time of the murder, Moore lived with her mother. On the evening
of August 8, 2009, Moore’s mother left their home at around 9:15 p.m. to go
to work. Moore’s mother had just recently begun letting Moore stay home
alone while she worked the night shift, on the condition that Moore was not to
open the door for anyone.
Sometime after Moore’s mother left for work, Smith and Murchinson
met at Smith’s home. They gathered a kitchen knife, a claw hammer, and cloth
gloves for each of them, and walked to Moore’s house. Smith carried the
hammer, and Murchinson carried the knife. When they arrived at Moore’s
house, the front door was locked and Moore did not answer the door, so they
left and went to a nearby Huddle House. Cell phone records introduced at trial
showed several texts between Smith and Moore between 11:08 p.m. and 11:45 p.m., in which Smith told Moore that he and Murchinson were coming back
and to open the front door. Moore texted that the front door was open, and
Smith responded, confirming that they were on their way. Smith sent no texts
between 11:46 p.m. and 12:15 a.m., and although he resumed texting at 12:16
a.m., he never again attempted to contact Moore. The last text message Moore
ever sent was to Smith at 11:45 p.m. on August 8, 2009, acknowledging that
Smith was on his way to her house.
A witness encountered Smith and Murchinson walking between the
Huddle House and Moore’s home shortly before midnight. She recognized the
boys and greeted them. They seemed startled to see her, but returned her
greeting and kept walking.
Upon arrival at the Moores’ home, Smith went with Moore to Moore’s
bedroom, while Murchinson remained in the front of the house. After a while,
Smith began beating Moore with the hammer, and Murchinson heard Moore
exclaim that her head was bleeding. Murchinson stood in the hallway and
listened to Moore screaming as Smith continued to hit her with the hammer,
following her to the bedroom doorway where she finally fell. Smith handed
Murchinson the hammer, and Murchinson hit Moore with the hammer on her head and upper body as she lay on the floor, to make sure that she was dead.
Both boys wore the cloth gloves they had brought with them.
After Moore was dead, Smith and Murchinson poured bleach and
dumped paper trash from a wastebasket on her body. Smith went to the stove,
lit a piece of paper, and set the debris on top of Moore on fire. When a smoke
alarm near her body began going off, one of the two pulled it out of the ceiling.
Smith and Murchinson dumped the knife, hammer, and Moore’s cell phone in
a storm drain near Moore’s house and went back to Smith’s house to shower
and burn their clothing in a fire barrel.
Later that morning, Moore’s mother returned home from work to find
the house full of smoke. She called out for Moore and found her body at the
end of the hall near her bedroom door. An autopsy revealed that Moore had at
least 18 blunt force injuries to the face and head, consistent with being hit with
a hammer; at least eight sharp force injuries to the head, consistent with being
cut with a knife; and multiple smaller blunt and sharp force injuries, including
defensive injuries to the arms and hands. The autopsy also showed that Moore
had been killed before her body was burned—and that she was not in fact
pregnant at the time of her death. Although Smith and Murchinson were questioned during the initial
murder investigation, both denied any involvement in the crime. Smith gave
authorities his cell phone number, and cell phone records revealed the text
messages between Smith and Moore on the night of the murder. There was
not enough evidence to obtain warrants, however, and the case went unsolved
for almost five years.
In June 2014, after attending a three-night Baptist revival, Murchinson
turned himself in to the Alma Police Department and confessed his role in
Moore’s murder. The storm drain that Murchinson identified was searched,
and Moore’s cell phone and a kitchen knife were discovered inside the drain
about a foot apart. Smith and Murchinson were arrested and indicted for
malice murder, felony murder, and first degree arson. Days before trial,
Murchinson pled guilty to aggravated assault and arson and was sentenced to
a total of 30 years in prison. As part of the plea agreement, he testified for the
State at Smith’s trial.
Although Smith does not challenge the legal sufficiency of the evidence
supporting his convictions, we have reviewed the record according to our usual
practice in murder cases and conclude that the evidence introduced at trial and
summarized above was sufficient to authorize a rational trier of fact to find Smith guilty beyond a reasonable doubt of the crimes of which he was
convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979).
II.
In his sole enumeration of error, Smith contends that his trial counsel
provided constitutionally ineffective assistance in two ways. To prevail on his
ineffective assistance claims, Smith must show both that his lawyer’s
performance was professionally deficient and that he was prejudiced as a
result. See Strickland v. Washington, 466 U. S. 668
Free access — add to your briefcase to read the full text and ask questions with AI
303 Ga. 643 FINAL COPY
S18A0333. SMITH v. THE STATE.
GRANT, Justice.
Deion Smith was found guilty of malice murder and arson in connection
with the violent death of 15-year-old Jasmine Moore.1 Smith now appeals,
arguing that his trial counsel was ineffective for failing to challenge the
sufficiency of the indictment and failing to thoroughly cross-examine Smith’s
co-defendant, Tyberius Murchinson. Because we find that Smith’s trial
counsel was not constitutionally ineffective, we affirm.
1 Moore was killed on August 9, 2009. On August 20, 2014, Smith and Tyberius Murchinson were indicted by a Bacon County grand jury for malice murder, felony murder predicated on aggravated assault, and arson in the first degree. Murchinson pled guilty to aggravated assault and arson before trial. At the conclusion of a trial held April 19-20, 2016, the jury found Smith guilty of all three counts of the indictment. The trial court sentenced Smith to life in prison for murder and 15 years consecutive for arson. Although the trial court purported to merge the felony murder count with the malice murder count, the felony murder count actually was vacated by operation of law. See McClendon v. State, 299 Ga. 611, 618-619 (791 SE2d 69) (2016). On April 25, 2016, Smith filed a motion for new trial, which he amended on July 14, 2017 through new counsel. After a hearing, the trial court denied the motion for new trial on July 27, 2017. Smith filed a timely notice of appeal on August 24, 2017, and the case was docketed in this Court for the term beginning in December 2017 and submitted for a decision on the briefs. I.
Viewed in the light most favorable to the verdicts, the evidence presented
at trial showed the following. Shortly before her death, Moore told her cousin,
Murchinson’s sister Teyonka, that she might be pregnant with Smith’s child.
At the time, Teyonka herself was pregnant by Smith. After Smith became
aware that Moore might be pregnant, he discussed the situation with
Murchinson, telling him that he wanted to kill Moore.
At the time of the murder, Moore lived with her mother. On the evening
of August 8, 2009, Moore’s mother left their home at around 9:15 p.m. to go
to work. Moore’s mother had just recently begun letting Moore stay home
alone while she worked the night shift, on the condition that Moore was not to
open the door for anyone.
Sometime after Moore’s mother left for work, Smith and Murchinson
met at Smith’s home. They gathered a kitchen knife, a claw hammer, and cloth
gloves for each of them, and walked to Moore’s house. Smith carried the
hammer, and Murchinson carried the knife. When they arrived at Moore’s
house, the front door was locked and Moore did not answer the door, so they
left and went to a nearby Huddle House. Cell phone records introduced at trial
showed several texts between Smith and Moore between 11:08 p.m. and 11:45 p.m., in which Smith told Moore that he and Murchinson were coming back
and to open the front door. Moore texted that the front door was open, and
Smith responded, confirming that they were on their way. Smith sent no texts
between 11:46 p.m. and 12:15 a.m., and although he resumed texting at 12:16
a.m., he never again attempted to contact Moore. The last text message Moore
ever sent was to Smith at 11:45 p.m. on August 8, 2009, acknowledging that
Smith was on his way to her house.
A witness encountered Smith and Murchinson walking between the
Huddle House and Moore’s home shortly before midnight. She recognized the
boys and greeted them. They seemed startled to see her, but returned her
greeting and kept walking.
Upon arrival at the Moores’ home, Smith went with Moore to Moore’s
bedroom, while Murchinson remained in the front of the house. After a while,
Smith began beating Moore with the hammer, and Murchinson heard Moore
exclaim that her head was bleeding. Murchinson stood in the hallway and
listened to Moore screaming as Smith continued to hit her with the hammer,
following her to the bedroom doorway where she finally fell. Smith handed
Murchinson the hammer, and Murchinson hit Moore with the hammer on her head and upper body as she lay on the floor, to make sure that she was dead.
Both boys wore the cloth gloves they had brought with them.
After Moore was dead, Smith and Murchinson poured bleach and
dumped paper trash from a wastebasket on her body. Smith went to the stove,
lit a piece of paper, and set the debris on top of Moore on fire. When a smoke
alarm near her body began going off, one of the two pulled it out of the ceiling.
Smith and Murchinson dumped the knife, hammer, and Moore’s cell phone in
a storm drain near Moore’s house and went back to Smith’s house to shower
and burn their clothing in a fire barrel.
Later that morning, Moore’s mother returned home from work to find
the house full of smoke. She called out for Moore and found her body at the
end of the hall near her bedroom door. An autopsy revealed that Moore had at
least 18 blunt force injuries to the face and head, consistent with being hit with
a hammer; at least eight sharp force injuries to the head, consistent with being
cut with a knife; and multiple smaller blunt and sharp force injuries, including
defensive injuries to the arms and hands. The autopsy also showed that Moore
had been killed before her body was burned—and that she was not in fact
pregnant at the time of her death. Although Smith and Murchinson were questioned during the initial
murder investigation, both denied any involvement in the crime. Smith gave
authorities his cell phone number, and cell phone records revealed the text
messages between Smith and Moore on the night of the murder. There was
not enough evidence to obtain warrants, however, and the case went unsolved
for almost five years.
In June 2014, after attending a three-night Baptist revival, Murchinson
turned himself in to the Alma Police Department and confessed his role in
Moore’s murder. The storm drain that Murchinson identified was searched,
and Moore’s cell phone and a kitchen knife were discovered inside the drain
about a foot apart. Smith and Murchinson were arrested and indicted for
malice murder, felony murder, and first degree arson. Days before trial,
Murchinson pled guilty to aggravated assault and arson and was sentenced to
a total of 30 years in prison. As part of the plea agreement, he testified for the
State at Smith’s trial.
Although Smith does not challenge the legal sufficiency of the evidence
supporting his convictions, we have reviewed the record according to our usual
practice in murder cases and conclude that the evidence introduced at trial and
summarized above was sufficient to authorize a rational trier of fact to find Smith guilty beyond a reasonable doubt of the crimes of which he was
convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979).
II.
In his sole enumeration of error, Smith contends that his trial counsel
provided constitutionally ineffective assistance in two ways. To prevail on his
ineffective assistance claims, Smith must show both that his lawyer’s
performance was professionally deficient and that he was prejudiced as a
result. See Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80
LE2d 674) (1984). In meeting his burden on the first prong, deficient
performance, Smith must show that his trial counsel acted “in an objectively
unreasonable way, considering all the circumstances and in the light of
prevailing professional norms.” Aikens v. State, 297 Ga. 229, 231 (773 SE2d
229) (2015) (citing Strickland, 466 U. S. at 687-688). Smith must overcome
the “strong presumption” that counsel’s performance fell within “the wide
range of reasonable professional assistance,” and that counsel’s decisions were
made “in the exercise of reasonable professional judgment.” Strickland, 466
U. S. at 689-690; see Ford v. State, 298 Ga. 560, 566 (783 SE2d 906) (2016). To satisfy the second prong, prejudice, Smith must show a reasonable
probability that, but for counsel’s deficiency, the outcome of the trial would
have been different. See Strickland, 466 U. S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id. In evaluating a claim of ineffective assistance of counsel, we need not
address both components of the Strickland inquiry if the defendant fails to
make a sufficient showing on one. See Propst v. State, 299 Ga. 557, 565 (788
SE2d 484) (2016). The burden of proving ineffective assistance is a heavy
one, see Lupoe v. State, 300 Ga. 233, 240 (794 SE2d 67) (2016), and Smith
cannot meet it with regard to either of his claims.
A. Smith first claims that his trial attorney provided ineffective
assistance in failing to challenge the sufficiency of the indictment, presumably
by filing a special demurrer before trial. Smith argues that the indictment was
unconstitutionally vague because the murder charges alleged that Smith and
Murchinson killed Moore by “striking her with a hammer” and “stabbing her
with a knife,” without specifying which of them used the hammer and which
one used the knife. This claim is without merit.
Count 1 of the indictment, which charged Smith and Murchinson with
the malice murder of Moore, read as follows: [The Grand Jurors,] In the name and behalf of the citizens of Georgia, charge and accuse DEION SMITH and TYBERIUS MURCHINSON with the offense of MALICE MURDER, For that the said accused on the 9th day of August, in the year Two Thousand and Nine, in the County of Bacon, did then and there unlawfully and with malice aforethought, cause the death of Jasmine Moore, a human being, by striking her with a hammer and stabbing her with a knife, in violation of OCGA § 16-5-1 (a), and did intentionally aid, abet, advise, encourage, and counsel one another in the commission of said crime, Contrary to the laws of said State, the good order, peace, and dignity thereof.
The language of the felony murder count was substantially identical to the
above, except that it charged Smith and Murchinson with the offense of felony
murder in that they caused Moore’s death “irrespective of malice” while in the
commission of the felony offense of aggravated assault “by striking her with a
hammer, an object which, when used offensively against a person is likely to
or actually does result in serious bodily injury, and by stabbing her with a knife,
a deadly weapon, in violation of OCGA § 16-5-1 (c).” At the motion for new
trial hearing, Smith’s trial attorney testified that he reviewed the indictment
and believed that it was not vague, overbroad, or subject to dismissal because
it was adequate to provide notice of what Smith was accused of doing.
An indictment charging the violation of a statutory offense “shall be
deemed sufficiently technical and correct” if it describes the offense in the
language of the statute “or so plainly that the nature of the offense charged may easily be understood by the jury[.]” OCGA § 17-7-54 (a); see State v. Wyatt,
295 Ga. 257, 260 (759 SE2d 500) (2014). And an indictment comports with
constitutional due process and is sufficient to withstand a special demurrer if
it contains the elements of the offense charged, sufficiently informs the
defendant of what he must be prepared to defend against, and in the event of
another prosecution for the same offense, enables the defendant to determine
accurately whether he may plead a former conviction or acquittal. See Wyatt,
295 Ga. at 260; State v. Grube, 293 Ga. 257, 258-260 (744 SE2d 1) (2013);
Arthur v. State, 275 Ga. 790, 791 (573 SE2d 44) (2002) (“The true test of the
sufficiency of an indictment is not whether it could be made more certain and
definite, but whether it contains the elements of the offense charged, apprises
the accused of what he must be prepared to defend against, and protects against
double jeopardy.”). Where these requirements are met, the indictment need
not specify “the role each co-indictee played in the commission of the crime.”
Jones v. State, 289 Ga. 111, 116 (709 SE2d 773) (2011).
Here, each of the murder counts tracked the language of the applicable
statute and alleged the essential elements of the offense charged. See OCGA
§§ 16-5-1 (a) (malice murder); 16-5-1 (c) (felony murder). The indictment
provided the date and county of the offense and the identity of the victim, and in terms clear enough to be easily understood by the jury and by the accused,
charged Smith with acting in concert with Murchinson to kill Moore by beating
and stabbing her to death. This information adequately informed Smith of the
crimes with which he was charged so that he could prepare a defense and
safeguard against double jeopardy. The indictment was thus sufficient to
satisfy due process and withstand a general or special demurrer, and Smith’s
trial counsel was not constitutionally ineffective for failing to challenge it. See
Wyatt, 295 Ga. at 260; Jones, 289 Ga. at 116; Moss v. State, 298 Ga. 613, 617
(783 SE2d 652) (2016) (“[T]he failure to make a meritless motion or objection
does not provide a basis upon which to find ineffective assistance of counsel.”
(citation and punctuation omitted)).
B. Smith next contends that his trial counsel was ineffective for failing
to cross-examine Murchinson adequately regarding his motivation for
testifying for the State. Smith claims that Murchinson’s testimony that he
“thought [he] could’ve gotten out better” from his plea deal than the 30-year
sentence he received showed that his motivation for testifying was to receive
the lightest sentence possible by implicating Smith as the main culprit. Smith
argues that his trial attorney failed to ask sufficiently probing questions to
illuminate Murchinson’s ulterior motive for the jury. On direct examination, Murchinson testified about his plea bargain,
disclosing that he had pled guilty to aggravated assault and arson several days
before trial and received a sentence of 30 years in prison. Murchinson further
acknowledged that his truthful testimony at trial was a condition of his plea
agreement. When asked why he pled guilty, Murchinson testified, “Like I say,
my involvement doesn’t leave me innocent. I thought I could have gotten out
better but . . . I’m still not innocent.” Smith’s trial counsel cross-examined
Murchinson about his plea deal and his statement that he “thought [he] could
have gotten out better,” asking, “Well, how much better deal did you want?”
to which Murchinson responded, “It wasn’t up to me. It was up to the District
Attorney.” Counsel continued to press, asking, “Well, you didn’t want life
without parole, did you?” Murchinson answered, “No, I didn’t want that
either.” Counsel then cross-examined Murchinson further on the
inconsistencies in his statements to police and the multiple details that
Murchinson claimed to have forgotten at the time of trial. At the motion for
new trial hearing, Smith’s trial attorney testified that he cross-examined
Murchinson as thoroughly as possible, based on counsel’s then 37 years of
experience trying criminal cases. “[D]ecisions about what questions to ask on cross-examination are
quintessential trial strategy and will rarely constitute ineffective assistance of
counsel. In particular, whether to impeach prosecution witnesses and how to
do so are tactical decisions.” Edwards v. State, 299 Ga. 20, 24 (785 SE2d 869)
(2016). Smith has failed to show that his trial counsel’s cross-examination of
Murchinson constituted deficient performance, and his claim on this issue
therefore fails. See id.; Romer v. State, 293 Ga. 339, 344 (745 SE2d 637)
(2013).
Judgment affirmed. All the Justices concur. Decided May 7, 2018.
Murder. Bacon Superior Court. Before Judge Horkan, Senior Judge.
L. Michael Johnson, for appellant.
George E. Barnhill, District Attorney, Alexander J. Markowich,
Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for
appellee.