Thomas v. State

838 S.E.2d 801, 308 Ga. 26

• Court: Supreme Court of Georgia
• Decided: February 10, 2020
• Docket: S19A1503
• Status: Published

Opinion

308 Ga. 26 FINAL COPY

S19A1503. THOMAS v. THE STATE.

PETERSON, Justice.

Daniel Maurice Thomas appeals his conviction for malice

murder in connection with the shooting death of Elliott Mizell.1

Thomas argues that the evidence was insufficient to support his

conviction; that the trial court erred by admitting an involuntary

custodial statement; and that trial counsel was ineffective in two

ways. We affirm because the evidence was sufficient to support

Thomas’s convictions; the custodial statement was not involuntary;

1 The crimes occurred on December 9, 2017. Thomas was indicted by a

Houston County grand jury on February 20, 2018, and charged with malice murder, felony murder, and aggravated assault. On December 12, 2018, Thomas was found guilty of all three counts in a jury trial. On December 14, 2018, Thomas was sentenced to life in prison without parole for malice murder; the aggravated assault count merged with malice murder, and the felony murder count was vacated by operation of law. Thomas’s trial counsel filed a motion for new trial on December 14, 2018. Appellate counsel filed an entry of appearance and a first amended motion for new trial on January 10, 2019. A second amended motion for new trial was filed on April 26, 2019. A motion for new trial hearing was held on April 30, 2019, and the trial court denied the motion the same day. Appellate counsel filed a notice of appeal on May 21, 2019. This case was docketed in this Court to the August 2019 term and submitted for a decision on the briefs. and Thomas failed to show that his trial counsel was deficient as to

one ineffective assistance of counsel claim, and failed to show

prejudice as to the other.

Viewed in the light most favorable to the verdicts, the evidence

presented at trial shows that in the early morning hours of

December 9, 2017, Mizell was shot in the back of the neck while lying

in his bed. Earlier that year, Mizell, who was known for mentoring

young men in the community, had befriended Thomas and began to

serve as a mentor to him. He offered Thomas help, such as giving

him money and taking him to dinner.

On the day Mizell was killed, Mizell’s neighbor was notified by

a security alarm company that Mizell’s security system was

reporting a “low battery” signal. The neighbor went to Mizell’s house

and knocked on the door. Hearing no answer, he went inside and

found that the house had been ransacked. The neighbor found Mizell

lying on his bed with what appeared to be a blanket covering his

head and immediately called 911. Upon instruction, he uncovered

Mizell’s head, and found him bloody and apparently deceased.

2 When police arrived, they found Mizell’s body in the bed with

a pillow case over his upper body. Authorities recovered a bullet and

a pillow with burn marks on one side, which indicated that a bullet

had been shot through it. Police determined that the gun had been

fired from within the pillow case into Mizell’s neck. There was no

gun or other ammunition found in Mizell’s residence, and testimony

at trial revealed that Mizell did not own a gun. There was no

indication on Mizell’s body that he had been struggling or fighting

with anyone. A State medical examiner later determined that Mizell

died from a gunshot wound to his neck that severed his left carotid

artery, causing him to bleed to death.

Police later obtained an Instagram video, that was posted on

the day before the murder, showing Thomas holding a 9mm pistol.

That evening, Thomas’s friend, Christopher Crawford, gave Thomas

a ride. When Crawford dropped Thomas off, he noticed an extended

clip of ammunition sticking out of Thomas’s shirt that appeared to

be a part of a black 9mm gun. At some point in the following days,

Thomas visited Crawford’s house. When Thomas left, Crawford

3 suspected that something was wrong, so he started cleaning his

house, and found hidden in his couch a black 9mm gun that

resembled the gun Crawford had previously seen Thomas carrying.

The day after the murder, Thomas called his mother on Mizell’s

cell phone and admitted to her that he killed someone. Thomas’s

mother was out of town at the time, and Thomas told her a story

about a robbery that had taken place in her home, which resulted in

him shooting the robber. Thomas’s mother did not believe Thomas’s

story, and after seeing a news report about Mizell’s murder, she

realized Thomas had called her using Mizell’s phone. She called the

police, reported Thomas’s statements, and agreed to go to the police

station for an interview. Police subsequently arrested Thomas

pursuant to warrants.

Following Thomas’s arrest, Detective Justin Clark read

Thomas his Miranda2 rights, and reviewed a form containing

written advice and a waiver of rights pursuant to Miranda, which

Thomas acknowledged and signed; Thomas agreed to answer

2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

4 questions without an attorney present. In a video-recorded

interview, Thomas admitted shooting and killing Mizell, claiming he

did so using Mizell’s gun and in self-defense because he was afraid

Mizell would rape him. Thomas’s custodial statement was admitted

at his trial.

1. Thomas argues that, setting aside his statement that he

claims was improperly admitted, the evidence was insufficient to

prove that he committed the crime for which he was convicted. We

disagree.

When we consider the sufficiency of the evidence, we view the

evidence in the light most favorable to the verdicts and evaluate

whether a rational trier of fact could have found the defendant guilty

beyond a reasonable doubt of the crime of which he was convicted.

See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d

560) (1979). “Under this review, we must put aside any questions

about conflicting evidence, the credibility of witnesses, or the weight

of the evidence, leaving the resolution of such things to the

discretion of the trier of fact.” Mims v. State, 304 Ga. 851, 853 (1) (a)

5 (823 SE2d 325) (2019) (citation and punctuation omitted).

As explained below, Thomas’s confession was properly

admitted. But even if it were not, a sufficiency review under Jackson

considers all evidence, whether admissible or not. Jackson, 443 U.S.

at 319 (“Once a defendant has been found guilty of the crime

charged, the factfinder’s role as weigher of the evidence is preserved

through a legal conclusion that upon judicial review all of the

evidence is to be considered in the light most favorable to the

prosecution.” (emphasis in original)); see also Green v. State, 291 Ga.

287, 289 (1) (728 SE2d 668) (2012) (wrongfully admitted evidence

may be considered in determining whether trial evidence was

sufficient). Thomas provides no argument as to why the evidence —

including his confession — was insufficient to support his conviction.

The jury was authorized to reject his claim of self-defense and find

beyond a reasonable doubt that Thomas was guilty of the crime of

which he was convicted. See Goodson v. State, 305 Ga. 246, 248 (1)

(b) (824 SE2d 371) (2019) (“Questions about the existence of

justification are for the jury to resolve, and the jury may reject any

6 evidence in support of a justification defense and accept evidence

that a shooting was not done in self-defense.”).

2. Thomas raises two challenges relating to his confession. He

argues that the trial court erred in denying his pretrial motion to

suppress the custodial statement he made to police as involuntary

in violation of OCGA § 24-8-824 because he was under the influence

of alcohol and/or drugs at the time of the interrogation. He also

argues that his confession was not sufficiently corroborated as

required by OCGA § 24-8-823.

(a) OCGA § 24-8-824 requires that any confession must “have

been made voluntarily” to be admissible. The trial court found

Thomas’s statement to be voluntary following a hearing on

November 21, 2018. The trial court found that Thomas appeared to

be coherent, understood his rights, and waived them freely and

voluntarily, and that no promises or threats were made to encourage

Thomas to make a statement.

Thomas argues that his statement was not voluntary because

he was intoxicated. In deciding the admissibility of Thomas’s

7 statements at the Jackson-Denno3 hearing, the trial court was

required to consider the totality of the circumstances and determine,

by a preponderance of the evidence, whether the statements were

knowingly and voluntarily given. Id. See also Lewis v. State, 298 Ga.

889, 890 (2) (785 SE2d 520) (2016). On appeal, “we accept the trial

court’s findings of fact and credibility determinations unless they

are clearly erroneous; but where controlling facts are not in dispute,

such as those facts discernible from a videotape, our review is de

novo.” Norris v. State, 302 Ga. 802, 804 (II) (809 SE2d 752) (2018)

(citation and punctuation omitted). We identify no clear error.

At the Jackson-Denno hearing, the interviewing detective,

Detective Clark, testified — and the video recording of the interview

shows — that Thomas was informed of his rights under Miranda

and formally waived those rights, and that Thomas expressed his

understanding and willingness to speak with police both by nodding

to show assent and in writing. Detective Clark also testified that he

did not smell alcohol or marijuana on Thomas’s breath, and

3 Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

8 Thomas’s appearance indicated that he was sober. The video shows

that although Thomas told police that he was “f**ked up” at the time

of the murder, he gave no indication that he was intoxicated two

days later when he was interviewed; he appeared calm and coherent.

This evidence sufficiently supports the trial court’s

determination that Thomas knowingly and voluntarily waived his

rights and gave his statement. Thomas has not shown that the trial

court clearly erred in denying Thomas’s pretrial motion to suppress

under OCGA § 24-8-824.

(b) Thomas also argues that his confession of guilt was not

properly corroborated by other evidence as required by OCGA § 24-

8-823, which provides in relevant part, “A confession alone,

uncorroborated by any other evidence, shall not justify a

conviction.”4 But this argument overlooks the difference between a

confession and a mere incriminating statement.

4 “[T]he confession corroboration requirement of OCGA § 24-8-823 was

carried forward from OCGA § 24-3-53 of the old Evidence Code, and we may therefore properly rely on our precedents applying the old provision.” Muckle v. State, 302 Ga. 675, 679 (1), n.6 (808 SE2d 713) (2017).

9 [A] mere incriminating statement is made where the accused, though admitting to damaging circumstances, nonetheless attempts to deny responsibility for the crime charged by putting forward exculpatory or legally justifying facts. Thus, [a] statement which includes facts or circumstances which show excuse or justification is not a confession of guilt even if it admits the main fact[.]

Robinson v. State, 232 Ga. 123, 126 (2) (205 SE2d 210) (1974)

(citation and punctuation omitted). See also Merritt v. State, 292 Ga.

327, 329 (1) (737 SE2d 673) (2013). Incriminating statements, unlike

confessions, do not require corroborating evidence. McMullen v.

State, 300 Ga. 173, 174 (1) (794 SE2d 118) (2016). Thomas’s

statement to police claimed self-defense, so it was a mere

incriminating statement and corroboration was not required.

3. Thomas argues that his trial counsel was ineffective for

failing to properly counsel him before trial, investigate facts, and

interview witnesses. We disagree.

For Thomas to prevail on any of his ineffectiveness claims, he

must satisfy the Strickland standard which requires a showing both

that trial counsel’s performance was constitutionally deficient and

that Thomas was prejudiced by this deficient performance.

10 Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d

674) (1984); Mims, 304 Ga. at 854-855 (2). “To establish deficient

performance, [Thomas] must overcome the strong presumption that

his . . . counsel’s conduct falls within the broad range of reasonable

professional conduct and show that his counsel performed in an

objectively unreasonable way” in the light of all of the

circumstances. Smith v. State, 296 Ga. 731, 733 (2) (770 SE2d 610)

(2015) (citation and punctuation omitted). To establish prejudice,

Thomas must show that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. Thomas

must prove both prongs of the Strickland test, and if he fails to prove

one prong, we need not examine the other prong. Smith, 296 Ga. at

733 (2). In reviewing either component of the inquiry, all factual

findings by the trial court will be affirmed unless clearly

erroneous. Id.

(a) Thomas argues that trial counsel was ineffective for failing

to investigate the case and for failing to interview witnesses for the

11 prosecution and the defense. Specifically, Thomas alleges that

counsel did not interview Thomas’s mother, Calandra Duggar, until

right before her testimony as a prosecution witness in the trial of

this case, and that counsel did not interview Crawford, the State’s

witness who said he gave Thomas a ride the night of the murder.

Thomas argues that these two witnesses were so crucial to the

State’s case that the outcome of the case would have been different

if trial counsel had properly investigated these witnesses. We

“[T]rial counsel has the obligation to make reasonable

investigations or to make a reasonable decision that makes a

particular investigation unnecessary.” Barker v. Barrow, 290 Ga.

711, 713 (1) (723 SE2d 905) (2012).

But, in any case in which the ineffectiveness of counsel for inadequate investigation is claimed, the reasonableness of a particular decision not to investigate in the manner urged must be assessed in light of all the circumstances at that time, and such assessment must include a heavy measure of deference to counsel’s judgments.

Id.

12 At the motion for new trial hearing, trial counsel testified that

her office attempted to reach all of the State’s witnesses, and that

Thomas did not provide counsel with the names of, or other

information about, other witnesses to investigate. She claimed that

she thought her office “made contact with everybody that testified,”

including Crawford. She testified that one of the first steps she took

in preparing the defense was attempting to contact Duggar. Counsel

said her office attempted to reach Duggar by phone, and counsel sent

investigators to Duggar’s home, but she was unsuccessful in

contacting Duggar until trial began. Counsel finally interviewed

Duggar just before her testimony at trial and was able to ask

questions and discuss the pending trial. Thomas provided no

evidence to refute counsel’s testimony. The trial court found “no

defective representation on [trial counsel’s] part at any point in the

progress of the case or trial.”

Thomas has not shown that counsel’s efforts to contact all

witnesses on the State’s witness list, including Duggar and

Crawford, were unreasonable. Counsel interviewed Duggar at the

13 earliest possible opportunity, and her co-counsel adjusted his cross-

examination in response to the interview. “[T]o establish that trial

counsel was deficient, [Thomas] has to show that no

reasonable attorney would have failed” to contact Duggar before

trial. Kennedy v. State, 304 Ga. 285, 288 (2) (818 SE2d 581)

(2018). Because Thomas has failed to provide any evidence of trial

counsel’s deficiency, Thomas has not shown that counsel was

deficient in this regard. Hassel v. State, 294 Ga. 834, 838-839 (2)

(755 SE2d 134) (2014) (concluding trial counsel was not deficient

where “[c]ounsel’s failure to interview [witness] was attributable to

[witness’s] unavailability, not counsel’s deficient performance”).

(b) Thomas also alleges that trial counsel did not adequately

consult with, advise, or prepare him prior to or during trial. We

The trial court found that counsel met with Thomas

approximately eight times between his arrest in December 2017 and

trial in December 2018. The trial court also found that counsel:

gathered information from law enforcement, the media, her

14 investigators, the prosecution, and Thomas himself; shared all of

this information with Thomas; counseled him as to the best defense;

and filed numerous motions on his behalf. The trial court also noted

counsel’s testimony that the decision not to testify was “strictly”

Thomas’s decision. Thomas does not dispute this, but argues that

the substance of the advice of his attorneys was lacking.

But Thomas provides no support for this claim and has failed

to show how additional time consulting with Thomas would have led

to a different outcome. Thomas’s “claim of ineffective assistance of

counsel is nothing more than speculation.” Vanholten v. State, 271

Ga. App. 782, 783 (2) (a) (610 SE2d 555) (2005). Because Thomas

has not shown that any alleged deficiencies in his counsel’s

consultation and preparation were prejudicial, his claim of

ineffective assistance fails.

Judgment affirmed. All the Justices concur.

DECIDED FEBRUARY 10, 2020. Murder. Houston Superior Court. Before Judge Lukemire. Jeffrey L. Grube, for appellant. George H. Hartwig III, District Attorney, Daniel P. Bibler, Assistant District Attorney; Christopher M. Carr, Attorney General,

15 Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine D. Emerson, Assistant Attorney General, for appellee.