Thurman v. State ( 2021 )

In the Supreme Court of Georgia
Decided: April 5, 2021
S21A0392. THURMAN v. THE STATE.
BOGGS, Justice.
Appellant Derrick Thurman challenges his convictions for
malice murder and other crimes in connection with the shooting
death of Timothy Hobbs. 1 In his sole enumeration of error, Appellant
contends that his trial counsel provided ineffective assistance by
failing to investigate and call Appellant’s grandmother, Bernice
1 Hobbs was killed on June 11, 2016. On February 14, 2017, a DeKalb
County grand jury indicted Appellant for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
felony. At a trial from October 9 to October 12, 2017, the jury found Appellant
guilty of all charges. The trial court sentenced Appellant to life in prison for
malice murder and five years suspended for possession of a firearm during the
commission of a felony. The felony murder count was vacated by operation of
law, and the aggravated assault count was merged with the malice murder
conviction. On November 9, 2017, Appellant filed a motion for new trial, which
he amended through new counsel on November 21, 2018. After hearings on
November 28, 2018 and February 1, 2019, the trial court denied the motion for
new trial as amended in an order filed on April 17, 2019. Appellant filed a
timely notice of appeal, and the case was docketed in this Court for the term
starting in December 2020 and submitted for decision on the briefs.
Thurman, as an alibi witness. We affirm.
The evidence presented at trial showed the following. There
was a history of animosity between Appellant and Hobbs. On March
13, 2016, Appellant was wounded in a shootout with an unknown
assailant who the police suspected may have been Hobbs, leaving
Appellant with damage to his abdomen that required a colostomy
bag. In May 2016, Appellant and several other people were involved
in a fistfight with Hobbs in which Hobbs was injured.
Between 3:00 a.m. and 3:15 a.m. on June 11, 2016, Hobbs left
his fiancée’s apartment to get some beer from a known bootlegger in
the apartment complex who lived in a building across the parking
lot. As Hobbs was walking across the parking lot, Appellant, who
was drinking beer with a man named Gary Sergeant, suddenly
walked away and said he would be right back. As he walked away,
Sergeant heard him say, “That looks like that motherf****r right
there.” When Appellant did not return, Sergeant went back to his
own apartment. Sergeant knew of Appellant’s reputation for
carrying a gun and believed he owned a .40-caliber firearm.
2
As soon as Hobbs left the bootlegger’s apartment, Appellant
shot him five times from behind, followed him as Hobbs fled up the
stairs, and shot him three more times in the back. The police
received a report of a shooting at the apartment complex at 3:17 a.m.
Hobbs was found breathing, lying with his head at the bottom of the
stairwell and his legs on the stairs. He was taken to Grady Hospital,
where he later died of blood loss due to his wounds.
At the scene, the police collected eight .40-caliber shell casings
from the bottom of the stairs where Hobbs was shot. These shell
casings were fired from the same gun as the .40-caliber bullets
recovered from the March 13, 2016 shooting. Appellant was also
identified on a video surveillance recording by multiple witnesses as
the person heading towards Hobbs only moments before he was
shot.2
Appellant contends that his trial counsel’s performance was
constitutionally deficient because he failed to investigate and call
2 We remind litigants that the Court no longer routinely considers the
sufficiency of the evidence sua sponte in non-death penalty cases. See
Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020).
3
Appellant’s grandmother, Bernice Thurman, as an alibi witness. We
disagree.
To prevail on an ineffective assistance of counsel claim,
Appellant must show both that his trial counsel’s performance was
deficient and that this deficiency prejudiced his defense. See
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984). An appellant must satisfy both prongs of the Strickland
test, and if one prong fails, “it is not incumbent upon this Court to
examine the other prong.” Smith v. State, 296 Ga. 731, 733 (770
SE2d 610) (2015) (citation and punctuation omitted). To establish
deficient performance, an appellant “must overcome the strong
presumption that his . . . counsel’s conduct falls within the broad
range of reasonable professional conduct and show that his counsel
performed in an objectively unreasonable way” in the light of all the
circumstances and prevailing norms. Id. (citation and punctuation
omitted). Even when trial counsel is no longer available to testify,
an “appellant must still overcome this presumption.” Jones v. State,
296 Ga. 561, 564 (769 SE2d 307) (2015). To establish prejudice, an
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appellant must show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. In
reviewing either component of the inquiry, all factual findings by the
trial court will be affirmed unless clearly erroneous. See Smith, 296
Ga. at 733.
Appellant was unable to call his trial counsel as a witness
during the motion for new trial hearings because counsel had died.
Instead, to support Appellant’s ineffectiveness claim, he called his
grandmother, Bernice Thurman. While she testified that Appellant
was in their shared apartment around 4:00 a.m. on June 11, 2016,
she also explained that shortly after the incident she moved out of
the apartment, moved several more times before Appellant’s trial,
did not keep in contact with Appellant, and had no phone. She never
spoke to Appellant or to his trial counsel about what she saw, even
after learning about Appellant’s arrest.
Appellant and his mother also testified during the hearings.
Appellant explained that he told his trial counsel that his
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grandmother could be a potential alibi witness, but he also admitted
that he never provided trial counsel with her contact information,
did not know where she lived, and never contacted her because she
did not have a phone. Appellant’s mother testified that she provided
trial counsel with Bernice Thurman’s phone number and claimed to
speak with her daily, but Appellant’s mother also admitted she did
not know where her mother lived.
Given this testimony, the trial court concluded that trial
counsel could not have contacted Appellant’s grandmother to
investigate or call her as an alibi witness and expressly found
Appellant’s mother’s testimony not credible, noting it contradicted
Bernice Thurman’s testimony that she did not own a phone.
Given that finding and that trial counsel cannot be held
constitutionally deficient for failing to investigate or call a witness
“whose whereabouts are unknown,” Moreno-Rivera v. State, 291 Ga.
336, 337 (729 SE2d 366) (2012) (citation and punctuation omitted),
the trial court did not err by concluding that Appellant’s trial
counsel was not ineffective for failing to contact or call the
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grandmother as a witness here. See also Woods v. State, 275 Ga. 844,
847 (573 SE2d 394) (2002) (trial counsel not ineffective for failing to
call a witness when all appellant told him was that the witness was
in jail somewhere in Ohio); Hernandez v. State, 303 Ga. App. 103,
106 (692 SE2d 712) (2010) (trial counsel not ineffective for failing to
investigate or call witnesses when appellant told him they had
moved and he was unsure where to find or contact them).
Judgment affirmed. All the Justices concur.
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