Harris v. State
| Decision Date | 05 November 2018 |
| Docket Number | S18A1305 |
| Citation | 304 Ga. 652,821 S.E.2d 346 |
| Parties | HARRIS v. The STATE. |
| Court | Georgia Supreme Court |
Steven Lee Sparger, Savannah, Attorney for the Appellant
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Department of Law, Margaret Ellen Heap, District Attorney, Christine Sieger Barker, A.D.A., Office of the District Attorney Eastern Judicial Circuit, Attorneys for the Appellee
Following a jury trial, James S. Harris appeals his conviction for murder and related crimes, contending that he received ineffective assistance of counsel.1 For the reasons set forth below, we affirm.
1. In the light most favorable to the verdict, the evidence shows that, on the evening of March 17, 2014, Dominique Ellison and Barry Williams were walking to Ellison’s house. As they did so, Harris shot at the two men multiple times, wounding Ellison and killing Williams. An eyewitness saw the shooter standing over Williams’s body and shooting him.2 Ellison fled to the nearby home of an acquaintance, Tracie Roberson. Although Ellison initially stated at the scene that he did not know who shot him, he later identified Harris, whom Ellison knew as "Sambo." Ellison was familiar with Harris as someone who lived in his neighborhood. Ellison first identified Harris when interviewed by police in his hospital room two days after the shooting. He then affirmed this identification in a photo lineup and, again, at trial.
At the scene of the shooting, investigating officers discovered a cell phone that had been dropped or discarded in a nearby vacant lot. Law enforcement found a contact titled "Sis" in the abandoned phone, which corresponded with a number belonging to Harris’s sister. Police also discovered a text message calling Harris by his nickname "Sambo," and notifications for 80 missed calls, some of which were from Harris’s girlfriend. In addition, police recovered six shell casings, all fired from the same gun.
This evidence was sufficient to enable the jury to find Harris guilty beyond a reasonable doubt 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).3
2. Harris argues that his trial counsel rendered ineffective assistance by failing to: (a) question Ellison and other potential witnesses about every time he told another person that he did not know who shot him; (b) question Ellison and other potential witnesses about every time that he told another person that the shooter was in a car, not on foot; and (c) object to allegedly improper opinion testimony from the lead detective that bolstered Ellison’s testimony.
In order to succeed on his claim of ineffective assistance, [Harris] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV), 104 S.Ct. 2052 ; Fuller v. State, 277 Ga. 505 (3), 591 S.E.2d 782 (2004). In reviewing the trial court’s decision, Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).
Wright v. State, 291 Ga. 869, 870 (2), 734 S.E.2d 876 (2012). Furthermore, "[t]rial tactics and strategy ... are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them." (Citation and punctuation omitted.) McNair v. State, 296 Ga. 181, 184 (2) (b), 766 S.E.2d 45 (2014). Moreover, " ‘hindsight has no place in an assessment of the performance of trial counsel,’ and a lawyer second-guessing his own performance with the benefit of hindsight has no significance for an ineffective assistance of counsel claim." (Citation omitted.) Shaw v. State, 292 Ga. 871, 876 (3) (a) n.9, 742 S.E.2d 707 (2013).
(a) Harris first argues that his trial counsel rendered ineffective assistance by failing to question Ellison about each and every time he told another person that he did not know who shot him. Harris contends that Ellison told Roberson and Officer David Barker at the scene that he did not know who shot him, and, after he had been transported to the hospital, but still on the same day as the shooting, he told Detective Santoro that he did not know who shot him. He also contends that Roberson’s sister, Ketia Miller, overheard Ellison’s conversations with Roberson. Of these alleged witnesses, only Roberson testified at trial, and none of the alleged witnesses testified at the hearing on Harris’s motion for new trial.
Instead of presenting testimony from these witnesses at the hearing, Harris relies on unsworn statements made by them in police reports and interviews. With regard to the purported witnesses who never testified, Harris "must introduce either testimony from the uncalled witness or a legally recognized substitute for his [or her] testimony." (Citations omitted.) Manriquez v. State, 285 Ga. 880, 881, 684 S.E.2d 650 (2009). He may not rely on hearsay and speculation to prove ineffective assistance. Id. Here, Harris called none of these witnesses to testify at the motion for new trial hearing. Instead, he merely relied on unsworn police reports and interviews, which are not appropriate substitutes for testimony. Id. Therefore, Harris provides no evidentiary basis to make even a threshold claim of prejudice, which he bears the burden of proving. Because Harris has failed to show prejudice as to these other witnesses, his claim of ineffective assistance of counsel fails in that regard.
In any event, the transcript shows that trial counsel did ask Ellison about his initial inability to name the shooter. The following questioning took place on cross-examination:
So, trial counsel did, in fact, elicit an admission from Ellison that, when asked what happened to him at the time of the shooting, he answered that he did not know who shot him. In addition, when Roberson testified, trial counsel also questioned her about Ellison’s statements at the scene; however, Roberson responded that she did not recall what was said.
Therefore, the evidence about which Harris now complains—that Ellison did not or could not identify his shooter on the day that he was shot—was, in fact, placed before the jury.
(b) Harris argues that his trial counsel rendered ineffective assistance by failing to question Ellison about every time that he told another person that the shooter may have been in a car, not on foot. Harris contends that, in an interview with Detective Puhala, Roberson stated that Ellison told a "police lady" at the scene that his assailant had been in a car, not on foot. He also maintains that, when interviewed by Detective Santoro at the hospital on the day of the shooting, Ellison stated, He further argues that Miller, Roberson’s sister, once again overheard the conversation.
With the exception of Detective Puhala, who was a witness called by the State at trial, none of the other alleged impeaching witnesses testified at trial, and Harris did not call any of them, including Detective Puhala, at the hearing on the motion for new trial. Nor did he call Ellison at the hearing to show what additional cross-examination would have yielded. Once again, Harris attempts to support his claim of ineffective assistance with unsworn statements made to police, but unsworn statements to police are not a legally acceptable substitute for witness testimony needed to prove prejudice. See Manriquez, supra. The result is that Harris, who has the burden to show prejudice, has provided no evidence supporting his claim that prejudice occurred, and his contention must fail.
(c) Finally, Harris argues that his trial counsel rendered ineffective assistance by failing to object to allegedly improper opinion testimony from Detective Puhala.4
During the direct examination of Detective Puhala, the following exchange occurred:
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