Thorpe v. State

818 S.E.2d 547, 304 Ga. 266
Supreme Court of Georgia·Decided August 20, 2018·No. S18A0732·Published·Cited by 7 cases

Opinion

HUNSTEIN, Justice.

**266Appellant Taurean Thorpe was tried and convicted of felony murder and related offenses in connection with the June 2010 shooting death of Justin Evans.1 Thorpe appeals, alleging that he **267received ineffective assistance of counsel and that the trial court committed reversible error. We affirm.

Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established that, on June 21, 2010, Justin Evans arranged to buy marijuana from Thorpe and his co-indictee Gary Mosley.2

*550When the three met, however, Evans robbed Mosley and Thorpe.

Later that day, Mosley and Darelle Phillips learned Evans resided at an apartment complex in Union City, Georgia, after which Mosley called Thorpe to come to the complex for assistance. Thorpe arrived at the apartment complex with Santino Butler and Paul Hill. Later, as Evans drove past the group on his way into the apartment complex, Mosley, armed with a .40 caliber pistol, shot at the moving car; the bullet struck Evans in the ankle. Shortly thereafter, Evans crashed the car, got out of the driver's seat and attempted to run away, but could only manage to limp. Thorpe pursued Evans, cornered him near one of the buildings in the apartment complex, and, also using a .40 caliber gun, shot Evans in the leg three times; one of the shots severed Evans' femoral artery, which later caused his death. Ballistics evidence confirmed that two different .40 caliber guns were utilized during the assault. Thorpe's cell phone records established he was near the scene of the crime when the shooting occurred and that he was in constant contact with Mosley, Hill and Butler around the time of the shooting.

Thorpe made numerous inculpatory statements to both witnesses and co-conspirators regarding his participation in the drug transaction with Evans, as well as his planning of and participation in the subsequent shooting. Thorpe fled the State after the murder and was eventually arrested in Ohio. He testified in his own defense, admitting that he was present at the scene but denying involvement in the shooting.

**2681. Though not enumerated by Thorpe, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Thorpe was guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Thorpe alleges two instances of ineffective assistance of counsel. In order to establish ineffective assistance of counsel, a defendant must show that his counsel's performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "If the defendant fails to satisfy either prong of the Strickland test, this Court is not required to examine the other." (Citation omitted.) Propst v. State, 299 Ga. 557, 565 (3), 788 S.E.2d 484 (2016). "A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." (Citation omitted.) Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). "In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Punctuation and citation omitted.) Wright v. State, 291 Ga. 869, 870, 734 S.E.2d 876 (2012). With these principles in mind, we review Thorpe's alleged errors.

a) Witness Impeachment

Thorpe first alleges that trial counsel was ineffective for failing to impeach Paul Hill with evidence of his prior felony convictions, arguing that discrediting this witness was crucial to the defense's case. Thorpe did not, however, introduce any of Hill's alleged prior convictions into evidence at the motion for new trial hearing, and it was his burden to show deficient performance and prejudice through "competent evidence, for a silent or ambiguous record is not sufficient to overcome the strong presumption of reasonable performance." State v. Mobley, 296 Ga. 876, 877, 770 S.E.2d 1 (2015). See also Revere v. State, 302 Ga. 44 (2) (b), 805 S.E.2d 69 (2017) (defendant did not meet his burden of showing ineffective assistance where he failed to introduce certified copies of the prior acts to support his claim). Accordingly, this claim fails.

b) Mosley's hearsay statements

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Thorpe v. State, 818 S.E.2d 547, 304 Ga. 266 (Ga. 2018).

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