¶1In the Supreme Court of Georgia
¶2 Decided: April 5, 2021
¶3 S21A0392. THURMAN v. THE STATE.
¶4 BOGGS, Justice.
¶5 Appellant Derrick Thurman challenges his convictions for
¶6malice murder and other crimes in connection with the shooting
¶7death of Timothy Hobbs. 1 In his sole enumeration of error, Appellant
¶8contends that his trial counsel provided ineffective assistance by
¶9failing to investigate and call Appellant’s grandmother, Bernice
¶10 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.
¶11 The evidence presented at trial showed the following. There
¶12was a history of animosity between Appellant and Hobbs. On March
¶1313, 2016, Appellant was wounded in a shootout with an unknown
¶14assailant who the police suspected may have been Hobbs, leaving
¶15Appellant with damage to his abdomen that required a colostomy
¶16bag. In May 2016, Appellant and several other people were involved
¶17in a fistfight with Hobbs in which Hobbs was injured.
¶18 Between 3:00 a.m. and 3:15 a.m. on June 11, 2016, Hobbs left
¶19his fiancée’s apartment to get some beer from a known bootlegger in
¶20the apartment complex who lived in a building across the parking
¶21lot. As Hobbs was walking across the parking lot, Appellant, who
¶22was drinking beer with a man named Gary Sergeant, suddenly
¶23walked away and said he would be right back. As he walked away,
¶24Sergeant heard him say, “That looks like that motherf****r right
¶25there.” When Appellant did not return, Sergeant went back to his
¶26own apartment. Sergeant knew of Appellant’s reputation for
¶27carrying a gun and believed he owned a .40-caliber firearm.
¶28 2 As soon as Hobbs left the bootlegger’s apartment, Appellant
¶29shot him five times from behind, followed him as Hobbs fled up the
¶30stairs, and shot him three more times in the back. The police
¶31received a report of a shooting at the apartment complex at 3:17 a.m.
¶32Hobbs was found breathing, lying with his head at the bottom of the
¶33stairwell and his legs on the stairs. He was taken to Grady Hospital,
¶34where he later died of blood loss due to his wounds.
¶35 At the scene, the police collected eight .40-caliber shell casings
¶36from the bottom of the stairs where Hobbs was shot. These shell
¶37casings were fired from the same gun as the .40-caliber bullets
¶38recovered from the March 13, 2016 shooting. Appellant was also
¶39identified on a video surveillance recording by multiple witnesses as
¶40the person heading towards Hobbs only moments before he was
¶41shot.2
¶42 Appellant contends that his trial counsel’s performance was
¶43constitutionally deficient because he failed to investigate and call
¶44 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
¶45disagree.
¶46 To prevail on an ineffective assistance of counsel claim,
¶47Appellant must show both that his trial counsel’s performance was
¶48deficient and that this deficiency prejudiced his defense. See
¶49Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
¶50674) (1984). An appellant must satisfy both prongs of the Strickland
¶51test, and if one prong fails, “it is not incumbent upon this Court to
¶52examine the other prong.” Smith v. State, 296 Ga. 731, 733 (770
¶53SE2d 610) (2015) (citation and punctuation omitted). To establish
¶54deficient performance, an appellant “must overcome the strong
¶55presumption that his . . . counsel’s conduct falls within the broad
¶56range of reasonable professional conduct and show that his counsel
¶57performed in an objectively unreasonable way” in the light of all the
¶58circumstances and prevailing norms. Id. (citation and punctuation
¶59omitted). Even when trial counsel is no longer available to testify,
¶60an “appellant must still overcome this presumption.” Jones v. State,
¶61296 Ga. 561, 564 (769 SE2d 307) (2015). To establish prejudice, an
¶62 4 appellant must show that “there is a reasonable probability that, but
¶63for counsel’s unprofessional errors, the result of the proceeding
¶64would have been different.” Strickland, 466 U.S. at 694. In
¶65reviewing either component of the inquiry, all factual findings by the
¶66trial court will be affirmed unless clearly erroneous. See Smith, 296
¶68 Appellant was unable to call his trial counsel as a witness
¶69during the motion for new trial hearings because counsel had died.
¶70Instead, to support Appellant’s ineffectiveness claim, he called his
¶71grandmother, Bernice Thurman. While she testified that Appellant
¶72was in their shared apartment around 4:00 a.m. on June 11, 2016,
¶73she also explained that shortly after the incident she moved out of
¶74the apartment, moved several more times before Appellant’s trial,
¶75did not keep in contact with Appellant, and had no phone. She never
¶76spoke to Appellant or to his trial counsel about what she saw, even
¶77after learning about Appellant’s arrest.
¶78 Appellant and his mother also testified during the hearings.
¶79Appellant explained that he told his trial counsel that his
¶80 5 grandmother could be a potential alibi witness, but he also admitted
¶81that he never provided trial counsel with her contact information,
¶82did not know where she lived, and never contacted her because she
¶83did not have a phone. Appellant’s mother testified that she provided
¶84trial counsel with Bernice Thurman’s phone number and claimed to
¶85speak with her daily, but Appellant’s mother also admitted she did
¶86not know where her mother lived.
¶87 Given this testimony, the trial court concluded that trial
¶88counsel could not have contacted Appellant’s grandmother to
¶89investigate or call her as an alibi witness and expressly found
¶90Appellant’s mother’s testimony not credible, noting it contradicted
¶91Bernice Thurman’s testimony that she did not own a phone.
¶92 Given that finding and that trial counsel cannot be held
¶93constitutionally deficient for failing to investigate or call a witness
¶94“whose whereabouts are unknown,” Moreno-Rivera v. State, 291 Ga.
¶95336, 337 (729 SE2d 366) (2012) (citation and punctuation omitted),
¶96the trial court did not err by concluding that Appellant’s trial
¶97counsel was not ineffective for failing to contact or call the
¶98 6 grandmother as a witness here. See also Woods v. State, 275 Ga. 844,
¶99847 (573 SE2d 394) (2002) (trial counsel not ineffective for failing to
¶100call a witness when all appellant told him was that the witness was
¶101in jail somewhere in Ohio); Hernandez v. State, 303 Ga. App. 103,
¶102106 (692 SE2d 712) (2010) (trial counsel not ineffective for failing to
¶103investigate or call witnesses when appellant told him they had
¶104moved and he was unsure where to find or contact them).
¶105 Judgment affirmed. All the Justices concur.
¶106 7