¶1In the Supreme Court of Georgia
¶2 Decided: April 5, 2021
¶3 S21A0422. THOMAS v. THE STATE.
¶4 BETHEL, Justice.
¶5 A Fulton County jury found Courtney Thomas guilty of malice
¶6murder and other offenses in connection with the shooting death of
¶7his girlfriend, Shevonta Hardwick. Following the denial of his
¶8motion for new trial, Thomas appeals, arguing that his trial counsel
¶9provided constitutionally ineffective assistance by withdrawing a
¶10motion to suppress evidence obtained by the police during a search
¶11of Thomas’s vehicle. We affirm. 1
¶12 1 The crimes occurred on October 31, 2013. On January 28, 2014, a Fulton County grand jury returned an indictment charging Thomas with malice murder, felony murder predicated on aggravated assault, aggravated assault, and possession of a firearm during the commission of a felony. At a jury trial held from September 14 to 16, 2016, Thomas was found guilty on all counts. The trial court sentenced Thomas to life in prison for malice murder and a consecutive term of 5 years in prison for possession of a firearm during the commission of a felony. The remaining counts were either vacated by operation of law or merged for sentencing. On September 22, 2016, Thomas 1. The evidence presented at trial showed the following.
¶13Thomas and Hardwick lived together in Hapeville in a ground-level
¶14apartment with one of Thomas’s brothers, Dennis Thomas. The
¶15apartment had a balcony that was about seven feet above the
¶16ground. Several witnesses, including Thomas, testified that Thomas
¶17and Hardwick had a good relationship and that there had never
¶18been any violence, arguments, or aggressive behavior between them.
¶19 On the evening of October 30, 2013, Thomas and Hardwick
¶20were in the apartment alone together. Two upstairs neighbors
¶21reported hearing three loud bangs, consistent with the sound of
¶22gunshots, coming from an apartment below them around 11:00 p.m.
¶23One neighbor also heard a man and woman arguing inside an
¶24apartment prior to hearing the bangs. The neighbor testified that it
¶25was obvious the argument was “turning physical.”
¶26filed a motion for new trial, which he amended through new counsel on November 12, 2019. The trial court held a hearing on the motion, as amended, on January 9, 2020, and it denied the motion, as amended, on January 30, 2020. Thomas filed a motion for an out-of-time appeal on June 8, 2020, which the trial court granted that day. Thomas filed a notice of appeal on June 12, 2020. This case was docketed to this Court’s term commencing in December 2020 and submitted for a decision on the briefs. 2 Dennis had spent the evening at a friend’s house. He came back
¶27to the apartment after midnight and went to sleep. He did not see
¶28Thomas or Hardwick when he came in. The next morning, Dennis
¶29went into the bedroom that Thomas and Hardwick shared and found
¶30Hardwick’s body on the floor, against the foot of the bed and facing
¶31the balcony door. She was unresponsive. Dennis called Marquez
¶32Higgins, and they both tried unsuccessfully to call Thomas. They
¶33then called 911.
¶34 Hapeville police officers responded to the 911 call and began
¶35searching the apartment. In the bedroom, they found a receipt for
¶36the purchase of a firearm in Thomas’s name,2 a broken cell phone
¶37that belonged to Hardwick, four Luger Hornady 9mm shell casings,
¶38one blood spot on the bed, and a bullet fragment. There were signs
¶39of a struggle, including clothing and personal items strewn on the
¶40floor, a broken shower curtain in the adjacent bathroom, and broken
¶41 2A salesman from a pawn shop testified that he sold Thomas a Smith & Wesson handgun, model SD9VE, in August 2013.
¶42 3 wires on the bedroom television.3 It did not appear to the police that
¶43Hardwick’s body had been moved.
¶44 The balcony door was open when Dennis and Higgins came in
¶45the bedroom and when the officers searched the apartment. Beneath
¶46the balcony, the officers located a black left-foot Nike sandal that
¶47Dennis indicated belonged to Thomas. The officers also noticed that
¶48bushes surrounding the balcony were damaged.
¶49 Later that day, a detective from the Hapeville Police
¶50Department obtained a court order directing Thomas’s cell phone
¶51service provider to release to the police certain data associated with
¶52Thomas’s cell phone, including cell-site location information
¶53(“CSLI”).4 The detective then worked with the service provider to
¶54 3 Dennis testified that Thomas and Hardwick normally kept the bedroom neat and clean. 4 A “cell site” typically consists of a set of either three or six directional
¶55radio antennas mounted on a tower, light post, flagpole, church steeple, or the side of a building. See Carpenter v. United States, __ U. S. __, __ (I) (A) (138 SCt 2206, 2211, 201 LE2d 507) (2018). Unless powered off, a cell phone continuously scans its environment looking for the strongest signal, which generally comes from the nearest cell site. See id. Each time a phone connects to a cell site, the connection generates a time-stamped digital record in the service provider’s account records that includes the particular cell site and the specific antenna activated (“sector” information); such records are known as cell-site location information. See id. 4 track Thomas’s cell phone using CSLI as the phone traveled away
¶56from the Atlanta area to a location on a highway near the border
¶57between Missouri and Iowa. The detective contacted the Iowa State
¶58Patrol, stated that Thomas was a murder suspect and was being
¶59tracked, and gave a description of the vehicle Thomas was thought
¶60to be driving. Minutes later, an Iowa patrol officer stopped Thomas’s
¶61vehicle and arrested him without incident.
¶62 After obtaining a search warrant, officers from the Iowa State
¶63Patrol and the Council Bluffs, Iowa, Police Department searched
¶64Thomas’s vehicle. They found an iPhone; two unfired Luger Hornady
¶659mm rounds of ammunition, a disassembled Smith & Wesson
¶66handgun (model SD9VE), 5 an empty 9mm handgun magazine, a
¶67black handgun holster, clothing, $32 in cash, and a black right-foot
¶68Nike sandal.
¶69 The police searched and photographed Thomas after he was
¶70arrested. During the search, the police found Hardwick’s bank debit
¶71card in Thomas’s wallet. Records from the bank showed that
¶72 5 The handgun was found in three separate pieces. 5 Hardwick was the only authorized user of the card and that the card
¶73had been used on October 31 at a gas station in Tennessee. Thomas
¶74later admitted using the card to buy gas. Photographs of Thomas
¶75showed that he had a bump on his forehead, a scrape on his elbow,
¶76a swollen ankle, and other minor injuries.
¶77 Hardwick’s autopsy revealed that she was shot four times and
¶78that she died of multiple gunshots to the torso. The manner of her
¶79death was homicide. The medical examiner recovered three bullets
¶80from Hardwick’s body during the autopsy. There was no soot or
¶81stippling on Hardwick’s body or clothing, which, according to the
¶82medical examiner, indicated that she had been shot from at least
¶83two feet away. The medical examiner also testified that Hardwick
¶84had a bruise and cuts on her right arm that appeared to have been
¶85caused at or near the time of her death. Hardwick had entry wounds
¶86on both her front and back, which were consistent with Hardwick
¶87turning away as she was being shot. Further, the bullets recovered
¶88during Hardwick’s autopsy and the bullet and cartridge casings
¶89found near Hardwick’s body were determined to be Hornady 9mm
¶90 6 ammunition that had been fired from the handgun found in
¶91Thomas’s car.
¶92 Thomas testified at trial. He admitted shooting Hardwick, but
¶93he claimed he acted in self-defense. He specifically testified as
¶94follows.
¶95 Thomas told the jury that he owned a gun that he often kept
¶96on the nightstand of the bedroom he shared with Hardwick. He kept
¶97the gun loaded and “ready to shoot” because he was worried that
¶98someone could get into the apartment through the ground-level
¶99balcony. Thomas said that Hardwick owned a .38-caliber handgun
¶100that he had bought for her, but he did not know where she kept it.
¶101On the night of the shooting, Thomas and Hardwick got into a
¶102protracted argument after Hardwick became suspicious that
¶103Thomas was sending text messages to other women. Their argument
¶104escalated into a physical confrontation. Hardwick hit him in the
¶105face, which broke his braces and caused his mouth to bleed. Later,
¶106Hardwick came into the bathroom and hit him several times.
¶107Thomas then shoved Hardwick against the bathroom wall. She
¶108 7 began crying, and Thomas apologized. Hardwick then stood up and
¶109said, “You’re dead.”
¶110 Hardwick then began rummaging through her belongings in
¶111the apartment. In the bedroom, she tried to pull the television from
¶112the wall, again told Thomas, “You’re dead,” and walked out of the
¶113room, slamming the door behind her. Thomas could hear her
¶114opening and closing kitchen drawers, and then Hardwick “busted”
¶115into the bedroom and again shouted, “You’re dead.” According to
¶116Thomas, she had her arm raised, and something was in her hand.
¶117Thomas was sitting on the bed. He grabbed his gun from the
¶118nightstand and began firing. He fired four shots and stopped firing
¶119when Hardwick fell to the ground next to the foot of bed. Thomas
¶120testified that he was not trying to kill Hardwick and was only trying
¶121to stop her from coming toward him.
¶122 Thomas did not check on Hardwick. Rather, he immediately
¶123grabbed clothes from his closet and ran out of the bedroom through
¶124the balcony door. He jumped over the balcony rail, went to his car,
¶125and drove away. As Thomas drove away from the Atlanta area, he
¶126 8 received numerous phone calls and text messages but refused to
¶127answer because he was “ashamed.” While driving, he called a suicide
¶128hotline because he considered committing suicide. He said that he
¶129disassembled the gun and placed its pieces in different parts of the
¶130car to “sav[e] his life” and that he threw unused rounds of
¶131ammunition from his gun out of the car as he was driving. 6
¶132 2. In his sole enumeration of error, Thomas argues that his
¶133trial counsel provided constitutionally ineffective assistance by
¶134withdrawing a motion to suppress evidence obtained by the police
¶135during the search of Thomas’s car, the location of which was
¶136determined by the use of “real-time” CSLI that identified the
¶137location of his iPhone as Thomas was driving. Thomas argues that
¶138his trial counsel should not have withdrawn the motion because she
¶139should have been aware of then-existing case law from various state
¶140and federal courts before the United States Supreme Court’s
¶141 6 Thomas does not argue that the evidence was insufficient to support his convictions, and because this case was docketed to the term beginning in December 2020, we no longer routinely review that issue sua sponte. See Davenport v. State, 309 Ga. 385, 391-392 (4) (846 SE2d 83) (2020). 9 decision in Carpenter v. United States, __ U. S. __ (138 SCt 2206, 201
¶142LE2d 507) (2018), which generally requires that law enforcement
¶143obtain a search warrant supported by probable cause in order to
¶144obtain “historical” CSLI. Thomas argues that had counsel pursued
¶145the motion to suppress, the evidence obtained from Thomas’s car
¶146after he was located through the use of CSLI would have been
¶147excluded at trial, or, at a minimum, issues relating to the search
¶148would have been properly preserved for appeal.
¶149 The trial court determined that Thomas’s trial counsel did not
¶150perform deficiently by not pursuing the motion to suppress. We
¶151agree.
¶152 To prevail on this claim, Thomas
¶153 has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [Thomas] must show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [Thomas] must show a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if
¶154 10 the defendant makes an insufficient showing on one.
¶155(Punctuation omitted.) Stuckey v. State, 301 Ga. 767, 771 (2) (804
¶156SE2d 76) (2017) (citing Strickland v. Washington, 466 U. S. 668, 687
¶157(104 SCt 2052, 80 LE2d 674) (1984)). “A strong presumption exists
¶158that counsel’s conduct falls within the broad range of professional
¶159conduct.” (Citation omitted.) Ford v. State, 298 Ga. 560, 566 (8) (783
¶160SE2d 906) (2016).
¶161 In October 2015, Thomas’s first trial counsel filed a pre-trial
¶162motion to suppress evidence obtained during the search of Thomas’s
¶163vehicle following his arrest in Iowa. In that motion, Thomas argued
¶164that the police had been able to locate Thomas only by unlawfully
¶165tracking his movements in real time utilizing CSLI. Thomas
¶166asserted that the surveillance constituted a search under the Fourth
¶167Amendment and that, although Georgia courts had yet to address
¶168the issue, the Florida Supreme Court had recently held that
¶169individuals have a reasonable expectation of privacy in the location
¶170data transmitted from a personal cell phone, even while traveling on
¶171public roads. See Tracey v. State, 152 S3d 504, 526 (Fla. 2014).
¶172 11 Thomas argued that his arrest violated the United States
¶173Constitution and the Georgia Constitution and that all evidence
¶174obtained in the arrest and the subsequent search of his car should
¶175be suppressed.
¶176 Thomas’s first trial counsel later withdrew from representing
¶177him, and Thomas obtained new counsel. At the start of Thomas’s
¶178trial in September 2016, his new counsel withdrew the motion to
¶179suppress. Counsel informed the trial court that, after reviewing the
¶180motion to suppress, discussing it with Thomas, and conducting
¶181further research, she did not believe there was a legal basis for the
¶182motion and specifically noted a then-recent decision from the United
¶183States District Court for the Northern District of Georgia denying a
¶184defendant’s motion to suppress CSLI records based on the
¶185determination that the defendant in that case had no legitimate
¶186expectation of privacy in those records and that the Fourth
¶187Amendment was not violated. See United States v. Wilson, No. 1:11-
¶188cr-53-TCB, 2013 U.S. Dist. LEXIS 37320, at *2 (N.D. Ga. March 19,
¶1892013). Later, at the hearing on Thomas’s motion for new trial, trial
¶190 12 counsel testified that, at the time she withdrew the motion to
¶191suppress, it was her impression that courts had been split about
¶192whether a warrant would be required in order to obtain CSLI.
¶193 At trial, as noted above, Thomas admitted shooting and killing
¶194Hardwick and testified at length about the circumstances of the
¶195shooting. He claimed he did not intend to kill Hardwick and that he
¶196was acting in self-defense.7 In her opening statement and closing
¶197argument, counsel argued that Thomas made a “split second”
¶198decision to shoot Hardwick in self-defense when Hardwick came into
¶199the bedroom with her arm raised. Counsel emphasized to the jury
¶200that Thomas then fled from the apartment in a panic and later called
¶201a suicide hotline and disassembled his gun in order to protect
¶202himself because he was “distraught.” Counsel also emphasized that
¶203Thomas had cooperated with the police and was taken into custody
¶204 7 In addition to self-defense, at Thomas’s request, the jury was instructed that it could find Thomas guilty of voluntary manslaughter as a lesser offense of malice murder and felony murder. In her closing argument, without conceding that Thomas was guilty, Thomas’s trial counsel referred to the voluntary manslaughter charge as another “option” that the jury could consider instead of finding Thomas guilty of murder. We express no opinion on whether the evidence supported a charge on voluntary manslaughter. 13 without incident.
¶205 At the hearing on Thomas’s motion for new trial, trial counsel
¶206testified that she abandoned the motion to suppress because
¶207attempting to exclude items seized in the search of Thomas’s car
¶208would be inconsistent with the self-defense theory she planned to
¶209pursue at trial. Counsel testified that, in her discussions with
¶210Thomas, he had been “adamant” that he acted in self-defense and
¶211that counsel believed the evidence obtained in the search of his car
¶212actually furthered the self-defense theory because it demonstrated
¶213how “scared,” “panicked,” and “traumatized” Thomas was after
¶214killing Hardwick.
¶215 In light of Thomas’s decision to testify, his detailed testimony
¶216regarding the circumstances of Hardwick’s shooting, and his
¶217“adamant” claim to his counsel that he had acted in self-defense, it
¶218was reasonable for counsel to vigorously pursue a self-defense
¶219theory at trial and to characterize any evidence at her disposal in
¶220any way that could advance that theory. Counsel’s testimony at the
¶221hearing on Thomas’s motion for new trial makes clear that she
¶222 14 believed at the time that, even if there were a legal basis for
¶223suppressing the evidence found in Thomas’s car, it could be
¶224advantageous to Thomas’s defense to have the evidence admitted
¶225because counsel could use it to support the self-defense claim. This
¶226decision was not objectively unreasonable under the circumstances
¶227and therefore cannot form the basis of a claim of ineffective
¶228assistance of counsel. See Reyes v. State, 309 Ga. 660, 671 (3) (a) (847
¶229SE2d 194) (2020) (no deficient performance where counsel could
¶230reasonably determine that best defense strategy was to forgo a
¶231motion to suppress DNA evidence, welcome its admission, and offer
¶232a plausible explanation for its presence at the crime scene); Dent v.
¶233State, 303 Ga. 110, 118 (4) (a) (810 SE2d 527) (2018) (“[A]t the
¶234motion-for-new-trial hearing, trial counsel testified that he wanted
¶235the video of the custodial interrogation admitted because, in his
¶236opinion, it assisted his client’s defense. Thus, this was a strategic
¶237decision which has not been shown to be professionally
¶238unreasonable.”); Gomez v. State, 301 Ga. 445, 459 (6) (a) (801 SE2d
¶239847) (2017) (no deficient performance where counsel could
¶240 15 reasonably determine that best strategy was to forgo objection to
¶241certain testimony and instead use it to challenge the State’s theory
¶242of the case). Because Thomas has failed to show that his trial counsel
¶243performed deficiently by withdrawing the motion to suppress, his
¶244claim of constitutionally ineffective assistance of counsel fails. 8
¶245 Judgment affirmed. All the Justices concur.
¶246 8 We note that this Court recently held that the exclusionary rule does not apply where, before Carpenter was decided, law enforcement officers relied on statutory law and then-binding appellate precedent to obtain CSLI without a warrant. See Lofton v. State, __ Ga. __, __ (2) (__SE2d __) 2021 WL 536259, at *10 (Case No. S20A1101, decided Feb. 15, 2021). Because we hold that Thomas’s trial counsel did not perform deficiently because she had a reasonable strategic purpose for withdrawing the motion to suppress, we need not address whether her decision constituted ineffective assistance of counsel related to the merits of the underlying motion. 16