State v. Sims, S14A1657.

• Decision Date: 02 February 2015
• Docket Number: No. S14A1657.,S14A1657.
• Citation: 769 S.E.2d 62,296 Ga. 465
• Parties: The STATE v. SIMS.
• Court: Georgia Supreme Court

296 Ga. 465

769 S.E.2d 62

The STATE

v.SIMS.

No. S14A1657.

Supreme Court of Georgia.

Feb. 2, 2015.

Richard King Bridgeman, Asst. Dist. Atty., Brian M. Rickman, Dist. Atty., Clarkesville, for appellant.

Brian Steel, The Steel Law Firm, P.C, Atlanta, for appellee.

Opinion

BENHAM, Justice.

The State appeals the trial court's decision to grant appellee Steve A. Sims, Jr.'s motion for new trial in regard to his convictions and sentences for felony murder and possession of a firearm during the commission of a felony.¹ For reasons set forth below, we affirm.

1. The evidence viewed in a light most favorable to the jury's verdict shows that several eyewitnesses saw appellee shoot Shawn Hancock after Hancock had interjected himself into an argument Sims was having with his ex-girlfriend K.M. K.M. testified that Hancock was like her brother. A week before the shooting outside the home of appellee's grandmother,² appellee and Hancock had also gotten into an argument regarding appellee's relationship with K.M., but no physical altercation occurred and Hancock left after appellee's grandmother threatened to call police. On the night of the shooting, K.M. was driving in her car with Hancock, her mother, and two friends when she spotted appellee in his car with a woman. K.M. followed appellee to his residence. K.M. parked in the street and got out of her vehicle to confront appellee and the two argued. During the argument, K.M. slapped appellee. Hancock, who had been watching the argument from the car, got out of the vehicle and tried to encourage K.M. to leave. The situation became heated and Hancock and appellee began to shove and push each other. K.M.'s mother testified she saw appellee and Hancock “swinging” at each other, but could not say whether any blows landed. The evidence showed Hancock was taller and three times heavier than appellee. All eyewitnesses testified Hancock was unarmed during the altercation.³ Witnesses said appellee went into his grandmother's residence, came back outside with a gun in his hand and shot Hancock several times. The medical examiner testified that Hancock had at least four gunshot wounds

, but was unable to say exactly how many bullets caused the wounds. Eyewitnesses testified they heard two to three gunshots. The medical examiner stated there was no stippling or gun residue on Hancock's clothing or on his body, indicating the shots were not made at close range. The medical examiner concluded that Hancock died from a gunshot wound to the chest piercing his heart and lung.

An agent with the Georgia Bureau of Investigation (GBI) interviewed appellee for an hour shortly after his arrest. The agent testified he did not notice any injury to appellee's face at the time of the interview. The State played an audio recording of appellee's interview with the GBI agent. During that interview, appellee initially denied having a gun or shooting the victim. When confronted with the knowledge that the agent had spoken with his father at the scene, appellee admitted to shooting the victim. Appellee told the agent Hancock hit him no more than three times in the face. He said the first blow was weak, that the second blow made him “dizzy,” and he was not sure about whether there was a third blow. After the second blow, he said he did not believe he could “beat” Hancock and he did not want to be “laying on the ground” in front of his grandmother and his grandmother having to “pick [him] up.” When asked where he “ha[d]” the gun used to shoot Hancock, appellee said it was under his grandmother's couch.⁴ Appellee never denied going inside the house to get the gun after Hancock hit him.

During the interview with the GBI agent, appellee was unaware that Hancock was deceased. At trial, witnesses testified that once Hancock was shot, he was able to sit down in K.M.'s car. At that point, all of K.M.'s passengers got back into the vehicle and drove off to take Hancock to the hospital. K.M., pulled over a few blocks away, however, and called 911 because Hancock had stopped breathing. Appellee told the GBI agent that after the shooting he dropped the gun and thought about fleeing, but that he ultimately went inside the house, where police arrested him. When the GBI agent interviewed appellee's father at the scene, he denied having any knowledge about a gun or the whereabouts of such a gun. When authorities confronted appellee's father a second time, however, he led them to a cousin's house where he had taken the gun minutes after the shooting.

The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellee 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).

2. The State contends the trial court erred when it granted appellee's motion for new trial on the ground that trial counsel rendered ineffective assistance when he failed to object to comments made by the State during opening argument referencing appellee's pre-arrest silence and failure to come forward to police after the shooting. The relevant comments made by the prosecutor during his opening statement were as follows:

• The evidence will also be that Steve Sims never called the police at any time, never called 911, nor did anybody associated with him, not to get help for Mr. Hancock or to report what had just happened. He never called police.

• You will hear that after the shooting, Mr. Sims didn't call 911 or the police.... You will also hear that when the police came in Mr. Sims' grandmother's house to come find out what's going on, he doesn't say, let me tell you what's happened. He doesn't say, I did what I had to do. He said, what's this all about. A man's shot. There's a man dead. There's a family member gone. And he says, what's this all about?

• The evidence will be that Steve Sims went inside, got the gun, and came back out, that he wasn't supposed to possess, and killed Shawn Hancock. Steve Sims never called the police to get help for Shawn Hancock or to tell what happened. He attempted to avoid responsibility by pretending as if he hadn't shot anybody and he wasn't really sure what happened. And, again, that's important, because we're going to be arguing to you that if Mr. Sims wants to claim self-defense, then you just lay it out. You just tell it. You tell what happened. There's no reason that you have to be untruthful, that you can't be candid.

The trial court, citing to several of this Court's precedents including Mallory v. State, 261 Ga. 625, 409 S.E.2d 839 (1991),⁵ implicitly found that when the prosecutor made the above-referenced comments, he violated the “bright-line rule in Georgia” that “the State may not comment on either a defendant's silence prior to arrest or failure to come forward voluntarily.” Sanders v. State, 290 Ga. 637(4), 723 S.E.2d 436 (2012). The trial court determined that trial counsel was deficient, pursuant to Strickland v. Washington, 466 U.S. 668(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to object to the comments and that appellee was prejudiced therefore.

In order to prevail on a claim of ineffective assistance of counsel, appellant

must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34(4), 644 S.E.2d 837 (2007). Whether a trial attorney renders constitutionally ineffective assistance is a mixed question of law and fact. Hulett v. State, 296 Ga. 49(5), 766 S.E.2d 1 (2014). When reviewing a trial court's decision to grant a motion for new trial based on ineffective assistance of counsel, we defer to the trial court's findings of fact unless clearly erroneous, but owe no such deference to its conclusions of law which we apply independently to the facts. Id.; State v. Worsley, 293 Ga. 315, 324(3), 745 S.E.2d 617 (3) (2013).⁶

a. The State contends the trial court erred because the comments at issue did not violate Mallory, supra, or its progeny, and so there was no valid basis for trial counsel to object or be found deficient in his performance. We disagree. Since Mallory was decided in 1991, this Court has unequivocally held:

It is a bright-line rule in Georgia that the State may not comment on either a defendant's silence prior to arrest or failure to come forward voluntarily. [Cits.] Finding such comments to be far more prejudicial than probative, this Court has determined that they are not to be permitted even in situations in which the defendant has not received Miranda warnings or takes the stand in his own defense. [Cit.]

Sanders v. State, 290 Ga. 637(4), 723 S.E.2d 436 (2012). The fact that appellee never invoked his right to silence upon being arrested and subject to interrogation does not necessarily vitiate this rule.⁷ Mallory focuses on commentary on a defendant's conduct between the time of the crime and prior to arrest. The cases cited by the State to argue that Mallory does not apply are distinguishable inasmuch as they concern commentary or questioning by the State exploring inconsistencies in a defendant's pre-trial statements to authorities. See, e.g., Rush v. State, 294 Ga. 388(2)(a), 754 S.E.2d 63 (2014) ; Johnson v. State, 292 Ga. 785(3), 741 S.E.2d 627 (2013) ; Gilyard v. State, 288 Ga. 800(2), 708 S.E.2d 329 (2011) ; Stringer v. State, 285 Ga. 842(4), 684 S.E.2d 590 (2009) ; McMichen v. State, 265 Ga. 598(11)(a), 458 S.E.2d 833 (1995). The comments at issue here are not limited to noting inconsistencies in appellee's pre-trial statements to authorities. Rather the comments expressly emphasize that appellee failed to call police after he shot Hancock and prior to being arrested. This violated the bright-line ...