Gittens v. State

• Decision Date: 10 February 2020
• Docket Number: S19A1044
• Citation: 838 S.E.2d 888,307 Ga. 841
• Court: Georgia Supreme Court
• Parties: GITTENS v. The STATE.

307 Ga. 841

838 S.E.2d 888

GITTENS

v.The STATE.

S19A1044

Supreme Court of Georgia.

Decided: February 10, 2020

Randall P. Sharp, for appellant.

Timothy G. Vaughn, District Attorney, Keely K. Pitts, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew M. Youn, Assistant Attorney General, for appellee.

Benham, Justice.

Appellant Joseph Anthony Gittens was convicted of malice murder in connection with the death of fellow inmate Johnny Lee Johnson.¹ Appellant argues on appeal that the evidence is insufficient to sustain his conviction, that trial counsel was constitutionally ineffective, that he was denied the right to communicate freely with counsel, and that newly discovered evidence entitles him to a new trial. We conclude that each claim is without merit and affirm.

Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. Appellant, his co-defendant Abdullahi Mohamed, and Johnson were all inmates at Telfair State Prison residing in the D-2 dormitory and were involved in a fight that led to Johnson's death. The jury heard testimony from several witnesses that Johnson had a cell phone and that the fight began when Mohamed attempted to take the cell phone from Johnson. Witnesses testified that Johnson was in his cell when Mohamed entered with a knife, tried to rob Johnson of the cellphone, and then started a fight with Johnson that carried out into the cell block's common area. Witnesses observed stab wounds on Johnson's chest when he exited his cell. The fight moved into the common area, where Appellant and multiple other inmates became involved as Johnson used a broomstick to fight back. Johnson was punched and stabbed again while in the common area. Two inmate witnesses testified that Appellant had a knife, that he participated in the fight with Johnson outside the cell, and that he stabbed Johnson. Johnson suffered superficial stab wounds to his shoulder and chest and a third stab wound to the chest that was fatal.

1. Appellant first contends that the evidence adduced at trial was insufficient to support his conviction and that the trial court erred in denying his motion for directed verdict. We apply the same standard to both claims: "whether the evidence presented at trial, when viewed in the light most favorable to the verdict[ ], was sufficient to authorize a rational jury to find the appellant guilty beyond a reasonable doubt of the crimes of which he was convicted." Virger v. State , 305 Ga. 281, 286 (2), 824 S.E.2d 346 (2019).

Two eyewitnesses testified to seeing Appellant fighting with Johnson after the melee spilled into the dormitory's common area, and both eyewitnesses testified that Appellant was wielding a knife, which he used to stab Johnson. Though Appellant argues that this testimony was inconsistent in certain respects, this Court "does not reweigh evidence or resolve conflicts in testimony." (Citation and punctuation omitted.) Cox v. State , 306 Ga. 736, 736 (1), 832 S.E.2d 354 (2019). "[I]t was for the jury to determine the credibility of any witnesses and to resolve any conflicts or inconsistencies in the evidence." (Citation and punctuation omitted.) Worthen v. State , 306 Ga. 600, 603 (1) (b), 832 S.E.2d 335 (2019). Likewise, it is of no consequence that the State did not adduce physical evidence – such as DNA evidence or fingerprints – connecting Appellant to the crime. See Plez v. State , 300 Ga. 505, 506 (1), 796 S.E.2d 704 (2017) ("Although the State is required to prove its case with competent evidence, there is no requirement that it prove its case with any particular sort of evidence, [such as DNA evidence or a confession].").²

The evidence recounted above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crime of which he was convicted. See Jackson v. Virginia , 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, the trial court did not err in denying Appellant's motion for a directed verdict of acquittal. See Virger , 305 Ga. at 288 (2), 824 S.E.2d 346.

2. Appellant next argues that he was denied the effective assistance of counsel in multiple respects. To prevail on these claims, Appellant must show both that his trial counsel's performance was professionally deficient and that he was prejudiced as a result of that performance. See Strickland v. Washington , 466 U. S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If Appellant fails to make one of these showings, this Court is not required to consider the other. See Grant v. State , 305 Ga. 170, 175 (5), 824 S.E.2d 255 (2019).

(a) Appellant first asserts that defense counsel was unprepared in three respects, but we agree with the trial court that this claim has no merit.

First, Appellant complains that trial counsel met with him only three to five times before trial, but "there exists no magic amount of time which counsel must spend in actual conference with his client." (Citation and punctuation omitted.)

Rice v. State , 301 Ga. 746, 748 (2), 804 S.E.2d 5 (2017). Next, Appellant takes issue with trial counsel's failure to file more than one pretrial motion. "Whether to file pretrial motions and how to argue them are strategic decisions, and when reasonable in the context of the case, do not constitute error." (Citation and punctuation omitted.) Jackson v. State , 306 Ga. 706, 714 (4) (a), 832 S.E.2d 809 (2019). Appellant has not identified what other motions trial counsel should have filed, nor has he articulated how trial counsel's failure to file additional motions was unreasonable. And "deficiency cannot be demonstrated by merely arguing that there is another, or even a better, way for counsel to have performed." Davis v. State , 306 Ga. 140, 144 (3), 829 S.E.2d 321 (2019).

Finally, while Appellant suggests that trial counsel should have engaged an investigator to interview potential witnesses, he offers no evidence in support of this claim other than generally asserting that these interviews could have led to exculpatory evidence. Unfounded speculation about what additional investigation might have uncovered or about what unnamed witnesses may have testified cannot support a claim that trial counsel was professionally deficient, nor can it establish prejudice. See Bozzie v. State , 302 Ga. 704, 711-712 (4) (d), 808 S.E.2d 671 (2017) ("[S]peculation about what the witnesses might have said on cross-examination is insufficient to establish prejudice."); Lanier v. State , 288 Ga. 109, 111 (3) (a), 702 S.E.2d 141 (2010) (no deficient performance in failing to hire an independent expert where appellant speculated that the State's DNA evidence was defective but failed to produce expert testimony supporting his claim).

(b) Appellant next argues that trial counsel was ineffective in failing to object to the

State's eliciting testimony regarding gangs and gang activity at Telfair State Prison, testimony which Appellant alleges amounts to nothing more than improper and irrelevant character evidence. We considered this "concerning" testimony in the appeal of Appellant's co-defendant Mohamed:

During the presentation of its case-in-chief, the State questioned three witnesses about the presence of gangs in Telfair State Prison. First, the State asked Officer Ben Northcutt, a corrections officer at the prison, whether he was aware of any "gangs or groups or affiliations of different inmates" at the prison around the time of the crime. After Northcutt testified generally about the prison's "gang problem," the State asked him how to determine whether an inmate was a member of "a group or affiliation." At that point, co-defendant Gipson objected on grounds of relevance, which the trial court overruled. Northcutt then testified regarding clothing and tattoos inmates might display and noises they might make to indicate their affiliation with other inmates. As to specific groups present at the prison, Northcutt identified "the Muslim guys" and "the Christian guys." The State next questioned inmate Thomas Echols about his observations of "groups or affiliations or gangs" in the prison, and Echols identified street gangs, like the Bloods and the Crips, as well as religious groups. Finally, inmate Rashard Styles testified that "a lot of gangs" were present in the prison. When Styles mentioned the Bloods and Crips, the State pressed him further, asking about other groups of people. Styles then specifically mentioned "the Muslims." These three witnesses offered no explanation as to how membership in a religious group might relate to gang activity.³

Mohamed v. State , 307 Ga. 89, 92 (2) (b), 834 S.E.2d 762, 766-767 (2019).

Assuming that trial counsel was deficient in failing to object to this testimony, we nevertheless conclude – as we did in Mohamed –that Appellant is not entitled to relief on this ground because he cannot demonstrate prejudice. As we noted in Mohamed , there was, at best, a tenuous connection between the problematic testimony and the co-defendants; Appellant's counsel noted as much during closing argument and emphasized the State's failure to connect the evidence to Appellant or to the crime. Moreover,

there was no evidence showing either that the crime was gang-related or that the defendants were motivated to participate in the crime by virtue of shared group membership. The prosecution made no reference to such a theory either in its opening statement or closing argument.

Id. Accordingly, Appellant has failed to show that his trial counsel was constitutionally ineffective in this regard.

(c) Appellant's third claim of ineffective assistance concerns his trial counsel's failure to object to testimony by State's witness Courtney Hughes. Hughes, an inmate who was incarcerated in the D-2 dorm when the crime occurred, repeatedly asserted on direct examination that he did not...