Smith v. State

FINAL COPY




                       S18A0333. SMITH v. THE STATE.


       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.




1
   Moore was killed on August 9, 2009. On August 20, 2014, Smith and Tyberius
Murchinson were indicted by a Bacon County grand jury for malice murder, felony murder
predicated on aggravated assault, and arson in the first degree. Murchinson pled guilty to
aggravated assault and arson before trial. At the conclusion of a trial held April 19-20,
2016, the jury found Smith guilty of all three counts of the indictment. The trial court
sentenced Smith to life in prison for murder and 15 years consecutive for arson. Although
the trial court purported to merge the felony murder count with the malice murder count,
the felony murder count actually was vacated by operation of law. See McClendon v. State,

 (

) (2016). On April 25, 2016, Smith filed a motion for
new trial, which he amended on July 14, 2017 through new counsel. After a hearing, the
trial court denied the motion for new trial on July 27, 2017. Smith filed a timely notice of
appeal on August 24, 2017, and the case was docketed in this Court for the term beginning
in December 2017 and submitted for a decision on the briefs.
                                       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 eight 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, 

 (

, 61 LE2d 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, 

 (

, 80

LE2d 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, 

 (

) (2015) (citing Strickland, 

). 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, 

; see Ford v. State, 

 (

) (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, 

.       “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

 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, 

 (

) (2016). The burden of proving ineffective assistance is a heavy

one, see Lupoe v. State, 

 (

) (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 thereof.

The language of the felony murder count was substantially identical to the

above, except that it charged Smith and Murchinson with the offense of felony

murder in that they caused Moore’s death “irrespective of malice” while in the

commission of the felony offense of aggravated assault “by striking her with a

hammer, an object which, when used offensively against a person is likely to

or actually does result in serious bodily injury, and by stabbing her with a knife,

a deadly weapon, in violation of OCGA § 16-5-1 (c).” At the motion for new

trial hearing, Smith’s trial attorney testified that he reviewed the indictment

and believed that it was not vague, overbroad, or subject to dismissal because

it was adequate to provide notice of what Smith was accused of doing.

      An indictment charging the violation of a statutory offense “shall be

deemed sufficiently technical and correct” if it describes the offense in the

language of the statute “or so plainly that the nature of the offense charged may
easily be understood by the jury[.]” OCGA § 17-7-54 (a); see State v. Wyatt,

 (

) (2014). And an indictment comports with

constitutional due process and is sufficient to withstand a special demurrer if

it contains the elements of the offense charged, sufficiently informs the

defendant of what he must be prepared to defend against, and in the event of

another prosecution for the same offense, enables the defendant to determine

accurately whether he may plead a former conviction or acquittal. See Wyatt,

; State v. Grube, 

 (

) (2013);

Arthur v. State, 

 (

) (2002) (“The true test of the

sufficiency of an indictment is not whether it could be made more certain and

definite, but whether it contains the elements of the offense charged, apprises

the accused of what he must be prepared to defend against, and protects against

double jeopardy.”). Where these requirements are met, the indictment need

not specify “the role each co-indictee played in the commission of the crime.”

Jones v. State, 

 (

) (2011).

      Here, each of the murder counts tracked the language of the applicable

statute and alleged the essential elements of the offense charged. See OCGA

§§ 16-5-1 (a) (malice murder); 16-5-1 (c) (felony murder). The indictment

provided the date and county of the offense and the identity of the victim, and
in terms clear enough to be easily understood by the jury and by the accused,

charged Smith with acting in concert with Murchinson to kill Moore by beating

and stabbing her to death. This information adequately informed Smith of the

crimes with which he was charged so that he could prepare a defense and

safeguard against double jeopardy. The indictment was thus sufficient to

satisfy due process and withstand a general or special demurrer, and Smith’s

trial counsel was not constitutionally ineffective for failing to challenge it. See

Wyatt, 

; Jones, 

; Moss v. State, 

(

) (2016) (“[T]he failure to make a meritless motion or objection

does not provide a basis upon which to find ineffective assistance of counsel.”

(citation and punctuation omitted)).

      B. Smith next contends that his trial counsel was ineffective for failing

to cross-examine Murchinson adequately regarding his motivation for

testifying for the State. Smith claims that Murchinson’s testimony that he

“thought [he] could’ve gotten out better” from his plea deal than the 30-year

sentence he received showed that his motivation for testifying was to receive

the lightest sentence possible by implicating Smith as the main culprit. Smith

argues that his trial attorney failed to ask sufficiently probing questions to

illuminate Murchinson’s ulterior motive for the jury.
      On direct examination, Murchinson testified about his plea bargain,

disclosing that he had pled guilty to aggravated assault and arson several days

before trial and received a sentence of 30 years in prison. Murchinson further

acknowledged that his truthful testimony at trial was a condition of his plea

agreement. When asked why he pled guilty, Murchinson testified, “Like I say,

my involvement doesn’t leave me innocent. I thought I could have gotten out

better but . . . I’m still not innocent.” Smith’s trial counsel cross-examined

Murchinson about his plea deal and his statement that he “thought [he] could

have gotten out better,” asking, “Well, how much better deal did you want?”

to which Murchinson responded, “It wasn’t up to me. It was up to the District

Attorney.” Counsel continued to press, asking, “Well, you didn’t want life

without parole, did you?” Murchinson answered, “No, I didn’t want that

either.”    Counsel then cross-examined Murchinson further on the

inconsistencies in his statements to police and the multiple details that

Murchinson claimed to have forgotten at the time of trial. At the motion for

new trial hearing, Smith’s trial attorney testified that he cross-examined

Murchinson as thoroughly as possible, based on counsel’s then 37 years of

experience trying criminal cases.
      “[D]ecisions about what questions to ask on cross-examination are

quintessential trial strategy and will rarely constitute ineffective assistance of

counsel. In particular, whether to impeach prosecution witnesses and how to

do so are tactical decisions.” Edwards v. State, 

 (

)

(2016). Smith has failed to show that his trial counsel’s cross-examination of

Murchinson constituted deficient performance, and his claim on this issue

therefore fails. See id.; Romer v. State, 

 (

)

(2013).

      Judgment affirmed. All the Justices concur.
                               Decided May 7, 2018.

      Murder. Bacon Superior Court. Before Judge Horkan, Senior Judge.

      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.