Smith v. State, S18A0333

• Decision Date: 07 May 2018
• Docket Number: S18A0333
• Citation: 814 S.E.2d 411
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 643

814 S.E.2d 411

SMITH

v.The STATE.

S18A0333

Supreme Court of Georgia.

Decided: May 7, 2018

L. Michael Johnson, for appellant.

George E. Barnhill, District Attorney, Alexander J. Markowich, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.

Grant, Justice.

Deion Smith was found guilty of malice murder and arson in connection with the violent death of 15-year-old Jasmine Moore.¹ Smith now appeals, arguing that his trial counsel was ineffective for failing to challenge the sufficiency of the indictment and failing to thoroughly cross-examine Smith's co-defendant, Tyberius Murchinson. Because we find that Smith's trial counsel was not constitutionally ineffective, we affirm.

I.

Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Shortly before her death, Moore told her cousin, Murchinson's sister Teyonka, that she might be pregnant with Smith's child. At the time, Teyonka herself was pregnant by Smith. After Smith became aware that Moore might be pregnant, he discussed the situation with Murchinson, telling him that he wanted to kill Moore.

At the time of the murder, Moore lived with her mother. On the evening of August 8, 2009, Moore's mother left their home at around 9:15 p.m. to go to work. Moore's mother had just recently begun letting Moore stay home alone while she worked the night shift, on the condition that Moore was not to open the door for anyone.

Sometime after Moore's mother left for work, Smith and Murchinson met at Smith's home. They gathered a kitchen knife, a claw hammer, and cloth gloves for each of them, and walked to Moore's house. Smith carried the hammer, and Murchinson carried the knife. When they arrived at Moore's house, the front door was locked and Moore did not answer the door, so they left and went to a nearby Huddle House. Cell phone records introduced at trial showed several texts between Smith and Moore between 11:08 p.m. and 11:45 p.m., in which Smith told Moore that he and Murchinson were coming back and to open the front door. Moore texted that the front door was open, and Smith responded, confirming that they were on their way. Smith sent no texts between 11:46 p.m. and 12:15 a.m., and although he resumed texting at 12:16 a.m., he never again attempted to contact Moore. The last text message Moore ever sent was to Smith at 11:45 p.m. on August 8, 2009, acknowledging that Smith was on his way to her house.

A witness encountered Smith and Murchinson walking between the Huddle House and Moore's home shortly before midnight. She recognized the boys and greeted them. They seemed startled to see her, but returned her greeting and kept walking.

Upon arrival at the Moores' home, Smith went with Moore to Moore's bedroom, while Murchinson remained in the front of the house. After a while, Smith began beating Moore with the hammer, and Murchinson heard Moore exclaim that her head was bleeding. Murchinson stood in the hallway and listened to Moore screaming as Smith continued to hit her with the hammer, following her to the bedroom doorway where she finally fell. Smith handed Murchinson the hammer, and Murchinson hit Moore with the hammer on her head and upper body as she lay on the floor, to make sure that she was dead. Both boys wore the cloth gloves they had brought with them.

After Moore was dead, Smith and Murchinson poured bleach and dumped paper trash from a wastebasket on her body. Smith went to the stove, lit a piece of paper, and set the debris on top of Moore on fire. When a smoke alarm near her body began going off, one of the two pulled it out of the ceiling. Smith and Murchinson dumped the knife, hammer, and Moore's cell phone in a storm drain near Moore's house and went back to Smith's house to shower and burn their clothing in a fire barrel.

Later that morning, Moore's mother returned home from work to find the house full of smoke. She called out for Moore and found her body at the end of the hall near her bedroom door. An autopsy revealed that Moore had at least 18 blunt force injuries to the face and head, consistent with being hit with a hammer; at least 8 sharp force injuries to the head

, consistent with being cut with a knife; and multiple smaller blunt and sharp force injuries, including defensive injuries to the arms and hands. The autopsy also showed that Moore had been killed before her body was burned—and that she was not in fact pregnant at the time of her death.

Although Smith and Murchinson were questioned during the initial murder investigation, both denied any involvement in the crime. Smith gave authorities his cell phone number, and cell phone records revealed the text messages between Smith and Moore on the night of the murder. There was not enough evidence to obtain warrants, however, and the case went unsolved for almost five years.

In June 2014, after attending a three-night Baptist revival, Murchinson turned himself in to the Alma Police Department and confessed his role in Moore's murder. The storm drain that Murchinson identified was searched, and Moore's cell phone and a kitchen knife were discovered inside the drain about a foot apart. Smith and Murchinson were arrested and indicted for malice murder, felony murder, and first degree arson. Days before trial, Murchinson pled guilty to aggravated assault and arson and was sentenced to a total of 30 years in prison. As part of the plea agreement, he testified for the State at Smith's trial.

Although Smith does not challenge the legal sufficiency of the evidence supporting his convictions, we have reviewed the record according to our usual practice in murder cases and conclude that the evidence introduced at trial and summarized above was sufficient to authorize a rational trier of fact to find Smith guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

II.

In his sole enumeration of error, Smith contends that his trial counsel provided constitutionally ineffective assistance in two ways. To prevail on his ineffective assistance claims, Smith must show both that his lawyer's performance was professionally deficient and that he was prejudiced as a result. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In meeting his burden on the first prong, deficient performance, Smith must show that his trial counsel acted "in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms." Aikens v. State , 297 Ga. 229, 231, 773 S.E.2d 229 (2015) (citing Strickland , 466 U.S. at 687-688, 104 S.Ct. 2052 ). Smith must overcome the "strong presumption" that counsel's performance fell within "the wide range of reasonable professional assistance," and that counsel's decisions were made "in the exercise of reasonable professional judgment." Strickland , 466 U.S. at 689-690, 104 S.Ct. 2052 ; see Ford v. State , 298 Ga. 560, 566, 783 S.E.2d 906 (2016).

To satisfy the second prong, prejudice, Smith must show a reasonable probability that, but for counsel's deficiency, the outcome of the trial would have been different. See Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In evaluating a claim of ineffective assistance of counsel, we need not address both components of the Strickland inquiry if the defendant fails to make a sufficient showing on one. See Propst v. State , 299 Ga. 557, 565, 788 S.E.2d 484 (2016). The burden of proving ineffective assistance is a heavy one, see Lupoe v. State , 300 Ga. 233, 240, 794 S.E.2d 67 (2016), and Smith cannot meet it with regard to either of his claims.

A. Smith first claims that his trial attorney provided ineffective assistance in failing to challenge the sufficiency of the indictment, presumably by filing a special demurrer before trial. Smith argues that the indictment was unconstitutionally vague because the murder charges alleged that Smith and Murchinson killed Moore by "striking her with a hammer" and "stabbing her with a knife," without specifying which of them used the hammer and which one used the knife. This claim is without merit.

Count 1 of the indictment, which charged Smith and Murchinson with the malice murder of Moore, read as follows:

[The Grand Jurors,] In the name and behalf of the citizens of Georgia, charge and accuse DEION SMITH and TYBERIUS MURCHINSON with the offense of MALICE MURDER, For that the said accused on the 9th day of August, in the year Two Thousand and Nine, in the County of Bacon, did then and there unlawfully and with malice aforethought, cause the death of Jasmine Moore, a human being, by striking her with a hammer and stabbing her with a knife, in violation of OCGA § 16-5-1 (a), and did intentionally aid, abet, advise, encourage, and counsel one another in the commission of said crime, Contrary to the laws of said State, the good order, peace, and dignity

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