Smith v. State
| Citation | 284 Ga. 599,669 S.E.2d 98 |
| Decision Date | 03 November 2008 |
| Docket Number | No. S08A1496.,No. S08A1581.,S08A1496.,S08A1581. |
| Parties | SMITH v. The STATE. Lightburn v. The State. |
| Court | Georgia Supreme Court |
Wilkerson, Assistant District Attorney, Thurbert E. Baker, Attorney General, Benjamin H. Pierman, Assistant Attorney General, for appellee.
Gerard Bradley Kleinrock, Decatur, GA, for Lightburn.
In 2007, a DeKalb County jury convicted Anthony Maurice Smith and Vernon Lightburn of malice murder and related crimes arising out of the shooting death of Rodney Gresham and the kidnapping of his live-in bodyguard and chef, Bosheal "Bo" Morris. Smith and Lightburn claim their trial attorneys rendered constitutionally ineffective assistance of counsel by failing to object to improper argument in the prosecutor's closing and the presence in the jury room of two sign language interpreters. Smith argues in addition that his lawyer was ineffective in failing to call a critical impeachment witness at trial. In an argument not raised by Smith, Lightburn contends that the trial court violated his constitutional right to be present at all critical stages of the proceedings against him by excusing a juror from service after Lightburn had been taken from the courtroom due to illness. For the reasons that follow, we affirm.1
1. Gresham owned a start-up music business called MDC, which stands for "Million Dollar Corporation." He frequented night clubs with Morris where he would flash around large amounts of cash to project an image of success for himself and his fledgling music company. Lightburn was a friend of Gresham and a frequent visitor to his home. Smith was a friend of Gresham's brother and had visited Gresham's house only once before the incident in question.
On the morning of September 7, 2006, Lightburn paid a visit to Gresham at his house. Morris let Lightburn in, and Lightburn proceeded up the stairs to talk to Gresham. Shortly thereafter, Lightburn came back downstairs, telling Morris he needed to retrieve something from his car but that he would be right back.
When Lightburn returned, he was accompanied by three men, one of whom was Smith. One of the men put a gun in Morris's face, forced him to back up and sit down on the couch, and warned him not to alert Gresham. Morris was tied up with duct tape as Lightburn and another man headed up the stairs to confront Gresham. Lightburn demanded that Gresham tell him where "the money" was as his accomplice beat and tortured him. Lightburn threatened to kill Gresham and his entire family if he refused to cooperate.
When Smith entered the house, he put a sheet over Morris's head. He commented to Morris that "[y]our boys [sic] is getting busted open real bad." As the beating of Gresham continued, Morris heard Lightburn tell Gresham that they planned to kill everyone in the house. Fueled by fear, Morris managed to bite through the duct tape securing his hands, hop to the back staircase, and throw himself down.2 The force of the fall loosened the duct tape around his legs, and he was able to break free.
Morris ran for the neighbors' house. His captors soon realized he was gone and gave chase, and Morris heard two gunshots ring out from Gresham's room. By the time Morris reached the neighbors' house, the men were already firing on him. Morris kicked in the neighbors' door and threw himself inside amidst a hail of bullets. The neighbors, who were home, gave Morris a gun to return fire while frantically dialing 911. A fierce firefight ensued.
The assailants departed only when the police neared. They led police on a high-speed chase that ended when they made a wrong turn, and the police captured Lightburn and Smith as they fled from the vehicle on foot. Smith was arrested largely without incident, but Lightburn violently resisted, which resulted in his being shot in the abdomen before he could be subdued. Lightburn and Smith were indicted eight months later, and the following month, they were convicted on all charges. The trial court denied their motions for new trial, and both men filed timely notices of appeal.
Viewed in the light most favorable to the verdict, we have no difficulty concluding that the evidence presented at trial was more than sufficient to authorize a rational trier of fact to find the defendants guilty beyond a reasonable doubt of the malice murder of Gresham as well as the other crimes for which they were convicted.3
2. Ineffective Assistance of Counsel. The defendants accuse their trial attorneys of providing constitutionally ineffective assistance of counsel for failing to make additional objections during the prosecution's closing argument and failing to object to the presence in the jury room of two sign language interpreters. To prevail on this claim, the defendants must show both that their attorneys' performance at trial was professionally deficient and that but for their defective performance, there is a reasonable probability the trial would have ended more favorably to them.4 As the trial court correctly held in rejecting their new trial motions, the defendants have demonstrated neither deficient performance nor resulting prejudice.
(a) Additional Objections During Closing Argument. The defendants were separately represented by experienced criminal defense attorneys who thoroughly prepared for trial and aggressively cross-examined the State's witnesses. Defense counsel objected at several points during the State's lengthy closing argument, and with some success. Nevertheless, the defendants now claim that their attorneys were professionally deficient in failing to raise more objections. Specifically, they contend their attorneys should also have objected when the prosecution: (1) improperly vouched for the truth of Morris's testimony; (2) argued defense counsel would "do anything or say anything" to secure acquittals; (3) asserted that both the defendants and their attorneys knew that they were guilty as charged; and (4) commented on the defendants' smiling at trial and the difference between how they were dressed and groomed at trial as opposed to at the time of their arrest.
Both the prosecution and the defense are permitted wide latitude in their closing arguments.5 As a general rule, closing argument is appropriate as long as it is based on evidence that is properly before the jury.6 Requests to limit the scope of closing argument are addressed to the sound discretion of the trial court, and the trial court's resolution of such matters will not be reversed on appeal absent an abuse of that discretion.7 We agree with the trial court that the defendants have failed to show that their attorneys were professionally deficient in failing to raise the additional objections.
Defense counsel were not required to object to the prosecution's improperly vouching for Morris's credibility for the simple reason that it never occurred. Read in context, it is perfectly clear that the prosecutor was arguing that the evidence showed that Morris's testimony was truthful, not that the prosecutor was himself vouching for Morris's credibility.
The prosecution's statement that defense counsel would "do anything or say anything" to obtain acquittals is troubling. Defense counsel would certainly have been within their rights to object, and the trial court would not have abused its discretion had it sustained the objection. Nevertheless, there are often sound tactical reasons for not objecting to every improper statement made by the prosecution during closing argument, and the defendants have not demonstrated that the failure to object to the prosecution's fleeting attack on defense counsel's integrity was "outside the wide range of professionally competent assistance" and therefore "fell below an objective standard of reasonableness."
The claim that the prosecutor asserted that the defendants' own attorneys knew they were guilty is based on a misreading of the record. Smith argues in his brief on appeal, in a section adopted verbatim by Lightburn, that the prosecution stated as follows during closing argument: "[Appellant and his counsel] know they're guilty." However, what the prosecutor actually said, at the conclusion of his rebuttal to defense counsel's closing arguments, was: The obvious referent of the word "They" in the second sentence is the defendants themselves, not their lawyers. Moreover, it is clear from context that, aside from the defendants themselves, the prosecutor was not implying that he or the other prosecutor or anyone else had some secret knowledge of the defendants' guilt other than that shown by the evidence presented at trial.
The defendants contend trial counsel should have objected when the prosecution commented on the defendants' courtroom dress and demeanor. This contention might have some force if this case had been tried in federal court or the courts of our many sister states that have held that such statements are objectionable where a defendant has exercised his or her constitutional right not to take the stand at trial.8 However, this Court has held on several occasions that, generally speaking, it is not improper for the prosecutor to comment in closing argument on a non-testifying defendant's appearance and facial expressions.9 Thus, counsel's performance was not deficient in this regard.
In any event, even if we concluded that trial counsel performed unprofessionally in failing to lodge the additional objections now urged by the defendants, the defendants' ineffective assistance of counsel claim still fails. The evidence of Smith and Lightburn's guilt was overwhelming, and they failed to...
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