McDuffie v. State
| Decision Date | 16 November 2015 |
| Docket Number | No. S15A1093.,S15A1093. |
| Citation | 779 S.E.2d 620,298 Ga. 112 |
| Parties | McDUFFIE v. The STATE. |
| Court | Georgia Supreme Court |
R. Gary Spencer, R. Gary Spencer, P.C., Atlanta, for appellant.
Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, Joshua Wade Powell, Asst. Dist. Atty., Timothy Grady Vaughn, Dist. Atty., Oconee Judicial Circuit District Attorney's Office, for appellee.
Appellant Eugene McDuffie was convicted of malice murder for the shooting death of Jurrell Clarke.1 On appeal, he contends that his trial counsel provided ineffective assistance and that remarks by the prosecutor during closing argument deprived him of due process. We affirm.2
1. Viewed in the light most favorable to the verdict, the evidence at trial showed the following. Around 9:30 p.m. on August 18, 2004, Clarke was driving in McRae, Georgia, when he spotted Appellant's Jeep Cherokee and turned to follow it, telling his nephew and his nephew's friend, who were in the car with him, that he needed to handle some business with Appellant. Appellant parked in front of the home of George Harris and walked up to the front porch, where Harris was talking with Tyler Southerland. Clarke parked behind the Jeep, got out, walked over to Appellant, and said to Appellant that Appellant's father had taken some "merchandise"—meaning cocaine—from his backyard and that he wanted it back. Appellant admitted that his father took the cocaine but said that he was not responsible for his father's actions. Appellant and Clarke then started arguing.
Meanwhile, Rashaan Crisp was in the backyard talking to Chelsea Walker. Appellant had given Crisp a ride to Harris's earlier that day, and on the way over Appellant showed Crisp a 9mm handgun that he just got. Crisp heard Appellant and Clarke arguing in the front yard and came around from the back and positioned himself where he could overhear what was being said without being seen.
The argument between Appellant and Clarke became increasingly heated, and Clarke, who was much larger than Appellant, suggested that they fight it out in the street. Southerland, who was about the same size as Clarke, stepped up, said that Appellant was too small to fight, and invited Clarke to "fight me." At that point, Clarke called to his nephew to "get my gun" and started turning around to go back to his car. (Evidently this was a bluff, as Clarke did not have a gun in his car.) Appellant said, "you not the only one that has a gun," pulled out his new 9mm handgun, and fired two to three shots at Clarke from a distance of six or seven feet, hitting him once in the left thigh and once in the back of the head, which killed him. Crisp testified that he peeked around the corner just in time to see Appellant shoot Clarke.
Officer Benton Shumate of the McRae Police Department was outside the nearby police station, heard the shots, and went to investigate. As Officer Shumate drove down Harris's street, he saw Appellant's Jeep idling in the middle of the road and Southerland and two other men standing alongside the Jeep talking to Appellant. The Jeep pulled forward into an intersection, turned right, and stopped again. One of the men with Southerland walked to Harris's front porch while Southerland and the other man walked over to the Jeep and resumed talking to Appellant. When the man who went to the porch saw the police car, he whistled and called out to Appellant, Southerland, and the other man, and they turned and looked at Officer Shumate. Appellant then sped off in the Jeep. Officer Shumate attempted to follow, but Southerland and the man with him came out into the street and waved him down under the pretense of asking for a ride home, allowing Appellant to get away. Officer Shumate contacted another officer in the area and gave him a description of Appellant's vehicle. That officer pulled the Jeep over a couple blocks away, and Appellant consented to a search, but no gun was found in the Jeep. Appellant was allowed to drive to the police station, where he was questioned, cited for impeding the flow of traffic and failing to stop for a stop sign, and released.
Two 9mm shell casings and two 9mm bullets fired from the same gun were found by the police at the crime scene, but the gun was not found. Within days of the shooting, someone told Appellant's girlfriend where the gun was hidden, and she asked Cena Knowles to help her dispose of it. Knowles went with Appellant's girlfriend and another woman to the crime scene, retrieved the gun from its hiding place, and threw the gun into the middle of a river. Appellant was not arrested until January 4, 2005.
Southerland, Crisp, Clarke's nephew, and the nephew's friend all knew Appellant, and they each testified at trial that they saw Appellant shoot Clarke. Knowles testified about helping Appellant's girlfriend dispose of the gun. The defense acknowledged that Appellant was at the crime scene and that he argued with Clarke before the shooting, but denied that Appellant was the shooter, trying to cast suspicion on Harris, who did not testify at trial. Appellant did not testify, but he called the officer who pulled him over on the night of the shooting to testify that the consent search of the Jeep did not turn up a gun, bullets, or drugs; his girlfriend, who claimed that she had never been to Harris's place and denied helping Knowles dispose of a gun; and a character witness. Appellant also called Chelsea Walker, who was at the courthouse but refused to take the witness stand; Appellant declined the court's offer to compel Walker to testify.
Appellant does not dispute the legal sufficiency of the evidence supporting his conviction. Nevertheless, as is this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of malice murder. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) .
2. Appellant contends that his trial counsel provided ineffective assistance. To prevail on this claim, Appellant must show both that his counsel's performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to him. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Long v. State, 287 Ga. 886, 891, 700 S.E.2d 399 (2010). "This burden, although not impossible to carry, is a heavy one." Young v. State, 292 Ga. 443, 445, 738 S.E.2d 575 (2013). We conclude that Appellant failed to carry his burden.
Appellant alleges that his trial counsel performed deficiently in three ways. First, Appellant argues that his counsel should have called GBI Special Agent Spencer Barron, the lead investigator on the case, to impeach the State's witnesses and to introduce positive evidence that Appellant was not present during the shooting. Specifically, he claims that Agent Barron would have been able to testify that Crisp initially said that he did not see the shooting and did not see Appellant at Harris's place at all, and that Harris was originally arrested for the murder. But trial counsel—an experienced criminal defense lawyer—testified at the motion for new trial hearing that she made a strategic decision not to call Agent Barron, because case agents are generally more harmful than helpful to the defense and she was able to use Crisp's initial statements to impeach him on cross-examination. In fact, Agent Barron could have testified that Appellant had admitted to being present at the crime scene and that it was Appellant's initial false statement to law enforcement that led to the arrest of Harris, who was held almost five months before being released.
[D]ecisions about which witnesses to call at trial "are...
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