303 Ga. 700 FINAL COPY
S18A0003. THOMAS v. THE STATE.
BLACKWELL, Justice.
Maurice Thomas was tried by an Emanuel County jury and convicted of
murder and other crimes in connection with the fatal shooting of Eugene Grier.
Thomas appeals, contending that he was denied the effective assistance of
counsel when his lawyer opened the door and failed to object to evidence of a
statement made by his co-defendant, which, Thomas says, violated Bruton v.
United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968).1 We affirm.2
1 In Bruton, the United States Supreme Court held that the admission of a nontestifying co-defendant’s confession — in which the co-defendant admitted to committing the crime with the defendant — violated the defendant’s constitutional right to confrontation, notwithstanding a limiting jury instruction. See 391 U. S. at 136-137. See also Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998). 2 Grier was killed on August 29, 2010. On November 15, 2010, an Emanuel County grand jury indicted Thomas and co-defendant Carlton Thomas, charging them with malice murder, felony murder, aggravated assault, terroristic threats, and four counts of possession of a firearm during the commission of a felony. Thomas and Carlton were tried in July 2011, and the jury found Thomas guilty of malice murder, aggravated assault, terroristic threats, and three counts of possession of a firearm during the commission of a felony. Carlton was acquitted on all counts. The trial court sentenced Thomas to imprisonment for life for murder, 20 years for aggravated assault, five years for terroristic threats, and five years for each of the firearm possession counts. Still represented by his trial lawyer, Thomas filed a 1. Viewed in the light most favorable to the verdicts, the evidence shows
that Grier and his girlfriend, Janice Wadley, operated a small club known as
“Janice’s Place.” Early on the morning of August 29, 2010, Grier and Wadley
were working at the club and preparing to close when a group of young people
came in and ordered food. Grier and Wadley prepared the order in the kitchen
and then came out to the front counter with the food. As Grier stood there,
Thomas approached the counter and shot him in the head, causing him to fall to
the floor. Thomas then walked up to Wadley, pointed a gun to her face, and said,
“I’m fixing to kill you.” Thomas attempted to fire the gun, but he was unable to
do so for some reason (perhaps because the gun jammed). Thomas was enraged,
but his sister pulled on his shirt and implored him not to shoot, and he left the
club soon thereafter.
motion for new trial, which was denied. Thomas did not appeal at that time. Later, new counsel appeared for Thomas, and Thomas was permitted to file a second out-of-time motion for new trial. Following a hearing, that motion was denied on December 15, 2016, and Thomas filed a notice of appeal. After the appeal was docketed in this Court, Thomas filed a pro se motion to represent himself on appeal, and we remanded the case for a hearing on the question of representation. At that hearing, Thomas changed his mind and withdrew the request to represent himself. The record was transmitted back to this Court, and the appeal was docketed to the term beginning in December 2017 and submitted for a decision on the briefs.
2 Wadley testified at trial that she had known Thomas since he was a little
boy, and she identified him in the courtroom as the shooter. Two other
eyewitnesses also testified that Thomas was the shooter. One of these
eyewitnesses had known Thomas and his co-defendant (and cousin) Carlton for
many years. Before the shooting, she said, Thomas was outside the club, angry
and searching for a gun. After Thomas entered the club, this eyewitness saw
Carlton pass a handgun to Thomas, she watched Thomas shoot Grier, and she
then observed Thomas returning the gun to Carlton. This eyewitness admitted
that she was a crack cocaine addict at the time and stole items from the club in
the chaos that followed the shooting. The second eyewitness testified that he too
saw Thomas shoot Grier, and he identified Thomas in the courtroom as the
shooter. The second eyewitness admitted that he was a drug user as well, and he
conceded that Grier was his friend and mentor, explaining that he did odd jobs
for Grier and Wadley for food and rent.
Thomas does not dispute that the evidence is sufficient to sustain his
convictions. But consistent with our usual practice in murder cases, we
independently have reviewed the record to assess the legal sufficiency of the
evidence. We conclude that the evidence presented at trial was sufficient to
3 authorize a rational trier of fact to find beyond a reasonable doubt that Thomas
was guilty of the crimes of which he was convicted. See Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. In his sole enumeration of error, Thomas contends that he was denied
the effective assistance of counsel when his trial lawyer allowed a GBI agent to
testify without objection about a statement made by his co-defendant, which
incriminated Thomas. The GBI agent was a witness for the State, and she
testified about her investigation of the murder. The State did not ask her on
direct examination about any statements made by the co-defendant. But on
cross-examination, Thomas’s attorney asked what she had discovered during her
investigation about the motive for the murder. The GBI agent responded that she
had learned “from a couple of people” that, a week or two before the shooting,
Thomas and Grier had a disagreement about a small amount of marijuana and
that Grier had “pulled a gun on [Thomas].” On re-direct examination, the
prosecutor asked, “Now you were asked on cross examination about a prior
incident that occurred between [Thomas] and [Grier]. Did [the co-defendant] say
anything to you about that incident?” The GBI agent responded:
4 Yes, he did. . . . He told me that Mr. Grier and [Thomas] had an altercation a few weeks ago at a place called Cool Breeze, which is right up the street from where this incident took place, that he was not present but that [Thomas] had told him about it. He said that it was maybe over some marijuana, somebody maybe shorted some marijuana, that Mr. Grier had pointed a gun, and it does say in his face, had pointed a gun in [Thomas]’s face. And then there was some resolution to that, and that he also told me that [Thomas] had — that it had messed him up and that he had been thinking about it a lot and was going to get him back, or that [Thomas] was going to get [Grier] back, and that it was to the point where he was actually dreaming about it.
Thomas’s lawyer did not object to this testimony.
To obtain relief on a claim of ineffective assistance of counsel, a
defendant must show both that his lawyer’s performance was deficient and that
this deficient performance prejudiced the defense. Strickland v. Washington,
466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). An attorney
performs deficiently under Strickland if he does so in an “objectively
unreasonable way considering all the circumstances and in the light of
prevailing professional norms.” Jessie v. State, 294 Ga. 375, 377 (2) (754 SE2d
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303 Ga. 700 FINAL COPY
S18A0003. THOMAS v. THE STATE.
BLACKWELL, Justice.
Maurice Thomas was tried by an Emanuel County jury and convicted of
murder and other crimes in connection with the fatal shooting of Eugene Grier.
Thomas appeals, contending that he was denied the effective assistance of
counsel when his lawyer opened the door and failed to object to evidence of a
statement made by his co-defendant, which, Thomas says, violated Bruton v.
United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968).1 We affirm.2
1 In Bruton, the United States Supreme Court held that the admission of a nontestifying co-defendant’s confession — in which the co-defendant admitted to committing the crime with the defendant — violated the defendant’s constitutional right to confrontation, notwithstanding a limiting jury instruction. See 391 U. S. at 136-137. See also Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998). 2 Grier was killed on August 29, 2010. On November 15, 2010, an Emanuel County grand jury indicted Thomas and co-defendant Carlton Thomas, charging them with malice murder, felony murder, aggravated assault, terroristic threats, and four counts of possession of a firearm during the commission of a felony. Thomas and Carlton were tried in July 2011, and the jury found Thomas guilty of malice murder, aggravated assault, terroristic threats, and three counts of possession of a firearm during the commission of a felony. Carlton was acquitted on all counts. The trial court sentenced Thomas to imprisonment for life for murder, 20 years for aggravated assault, five years for terroristic threats, and five years for each of the firearm possession counts. Still represented by his trial lawyer, Thomas filed a 1. Viewed in the light most favorable to the verdicts, the evidence shows
that Grier and his girlfriend, Janice Wadley, operated a small club known as
“Janice’s Place.” Early on the morning of August 29, 2010, Grier and Wadley
were working at the club and preparing to close when a group of young people
came in and ordered food. Grier and Wadley prepared the order in the kitchen
and then came out to the front counter with the food. As Grier stood there,
Thomas approached the counter and shot him in the head, causing him to fall to
the floor. Thomas then walked up to Wadley, pointed a gun to her face, and said,
“I’m fixing to kill you.” Thomas attempted to fire the gun, but he was unable to
do so for some reason (perhaps because the gun jammed). Thomas was enraged,
but his sister pulled on his shirt and implored him not to shoot, and he left the
club soon thereafter.
motion for new trial, which was denied. Thomas did not appeal at that time. Later, new counsel appeared for Thomas, and Thomas was permitted to file a second out-of-time motion for new trial. Following a hearing, that motion was denied on December 15, 2016, and Thomas filed a notice of appeal. After the appeal was docketed in this Court, Thomas filed a pro se motion to represent himself on appeal, and we remanded the case for a hearing on the question of representation. At that hearing, Thomas changed his mind and withdrew the request to represent himself. The record was transmitted back to this Court, and the appeal was docketed to the term beginning in December 2017 and submitted for a decision on the briefs.
2 Wadley testified at trial that she had known Thomas since he was a little
boy, and she identified him in the courtroom as the shooter. Two other
eyewitnesses also testified that Thomas was the shooter. One of these
eyewitnesses had known Thomas and his co-defendant (and cousin) Carlton for
many years. Before the shooting, she said, Thomas was outside the club, angry
and searching for a gun. After Thomas entered the club, this eyewitness saw
Carlton pass a handgun to Thomas, she watched Thomas shoot Grier, and she
then observed Thomas returning the gun to Carlton. This eyewitness admitted
that she was a crack cocaine addict at the time and stole items from the club in
the chaos that followed the shooting. The second eyewitness testified that he too
saw Thomas shoot Grier, and he identified Thomas in the courtroom as the
shooter. The second eyewitness admitted that he was a drug user as well, and he
conceded that Grier was his friend and mentor, explaining that he did odd jobs
for Grier and Wadley for food and rent.
Thomas does not dispute that the evidence is sufficient to sustain his
convictions. But consistent with our usual practice in murder cases, we
independently have reviewed the record to assess the legal sufficiency of the
evidence. We conclude that the evidence presented at trial was sufficient to
3 authorize a rational trier of fact to find beyond a reasonable doubt that Thomas
was guilty of the crimes of which he was convicted. See Jackson v. Virginia,
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. In his sole enumeration of error, Thomas contends that he was denied
the effective assistance of counsel when his trial lawyer allowed a GBI agent to
testify without objection about a statement made by his co-defendant, which
incriminated Thomas. The GBI agent was a witness for the State, and she
testified about her investigation of the murder. The State did not ask her on
direct examination about any statements made by the co-defendant. But on
cross-examination, Thomas’s attorney asked what she had discovered during her
investigation about the motive for the murder. The GBI agent responded that she
had learned “from a couple of people” that, a week or two before the shooting,
Thomas and Grier had a disagreement about a small amount of marijuana and
that Grier had “pulled a gun on [Thomas].” On re-direct examination, the
prosecutor asked, “Now you were asked on cross examination about a prior
incident that occurred between [Thomas] and [Grier]. Did [the co-defendant] say
anything to you about that incident?” The GBI agent responded:
4 Yes, he did. . . . He told me that Mr. Grier and [Thomas] had an altercation a few weeks ago at a place called Cool Breeze, which is right up the street from where this incident took place, that he was not present but that [Thomas] had told him about it. He said that it was maybe over some marijuana, somebody maybe shorted some marijuana, that Mr. Grier had pointed a gun, and it does say in his face, had pointed a gun in [Thomas]’s face. And then there was some resolution to that, and that he also told me that [Thomas] had — that it had messed him up and that he had been thinking about it a lot and was going to get him back, or that [Thomas] was going to get [Grier] back, and that it was to the point where he was actually dreaming about it.
Thomas’s lawyer did not object to this testimony.
To obtain relief on a claim of ineffective assistance of counsel, a
defendant must show both that his lawyer’s performance was deficient and that
this deficient performance prejudiced the defense. Strickland v. Washington,
466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). An attorney
performs deficiently under Strickland if he does so in an “objectively
unreasonable way considering all the circumstances and in the light of
prevailing professional norms.” Jessie v. State, 294 Ga. 375, 377 (2) (754 SE2d
46) (2014) (citation and punctuation omitted). Prejudice is shown by
demonstrating “a reasonable probability sufficient to undermine confidence in
the outcome that, but for counsel’s alleged unprofessional errors, the result of
5 the proceeding would have been different.” Miller v. State, 285 Ga. 285, 286
(676 SE2d 173) (2009) (citation and punctuation omitted). “If the defendant
fails to satisfy either the ‘deficient performance’ or the ‘prejudice’ prong of the
Strickland test, this Court is not required to examine the other.” Jessie, 294 Ga.
at 377 (2). See also Jones v. State, 290 Ga. 576, 578 (3) (722 SE2d 853) (2012).
Assuming that Thomas’s lawyer performed deficiently, we cannot say
that, even if the GBI agent’s testimony had been excluded, there is a reasonable
probability that the outcome of Thomas’s trial would have been different. First,
the GBI agent’s testimony was not the only evidence of motive; similar evidence
was also introduced through a jailhouse informant, who testified that the co-
defendant told him that, “a couple of days” before the shooting,
[Thomas] had a[n] altercation with a fellow about quantity of some drugs or something, and the fellow actually had pulled a gun on him. And then a couple of days later, I don’t know if they were riding to find him or however it went, but, you know, they come across him and he had a gun and they had another altercation and he said [Thomas] shot him.
See Battle v. State, 301 Ga. 694, 700 (4) (804 SE2d 46) (2017) (“A Bruton
violation may not be prejudicial when the complained-of statements are
substantially similar to evidence properly admitted at trial.”). Thomas does not
6 claim that the jailhouse informant’s testimony was inadmissible, and in fact, the
co-defendant’s statements to the informant were not precluded under Bruton
because they were not testimonial. See Billings v. State, 293 Ga. 99, 104 (4)
(745 SE2d 583) (2013) (Bruton “does not apply to non-testimonial out-of-court
statements made by [non-testifying] co-defendant” (emphasis in original)).3
Moreover, the evidence against Thomas was very strong, as three
eyewitnesses — Wadley and two others — testified unequivocally that they saw
him shoot Grier, and their testimonies were largely consistent as to how the
shooting occurred. While Thomas contends that the eyewitnesses suffered from
credibility issues, it is highly unlikely that the jury would have completely
discredited all three but for the more detailed evidence of motive provided by
the GBI agent. After all, there was no other suspect in the shooting — to the
extent the co-defendant was involved at all (he was acquitted), no one suggested
3 A co-defendant’s statement to a jailhouse informant may be considered testimonial if the informant was a “government agent” in that he was “acting under the instructions of the government.” Rai v. State, 297 Ga. 472, 478 (3) (775 SE2d 129) (2015) (citation and punctuation omitted). But “an informant may be classified as a government agent only if there is both (1) an agreement between the informant and government authorities to exchange incriminating information for payment, lenient treatment, or some other benefit and (2) some action by the informant designed deliberately to elicit incriminating information.” Id. at 478- 479. There is no indication here that the jailhouse informant who testified in this case was a government agent.
7 that he was the triggerman. It was undisputed that the killing occurred in the
presence of multiple eyewitnesses. And the defense has not presented any
theories as to why those eyewitnesses would want to blame Thomas for the
murder while concealing the real killer’s identity. In sum, there is no reasonable
probability that any Bruton error affected the outcome of the trial, so Thomas
has failed to show ineffective assistance of counsel. See Battle v. State, 301 Ga.
at 700 (4) (“[R]eversal of a defendant’s convictions for [a Bruton] violation in
the context of a claim of ineffectiveness of trial counsel is not warranted if given
the strength of the evidence against the defendant, there is no reasonable
probability that the outcome of the defendant’s trial would have been more
favorable had defense counsel made a Bruton objection which was sustained.”).
Judgment affirmed. All the Justices concur.
8 Decided May 21, 2018.
Murder. Emanuel Superior Court. Before Judge Reeves.
Tyler R. Conklin, for appellant.
S. Hayward Altman, District Attorney, John A. Fitzner III, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Aimee F. Sobhani, Assistant Attorney General, for appellee.