312 Ga. 466 - Mahdi v. State

¶2 Decided: September 21, 2021

¶3 S21A0740. MAHDI v. THE STATE.

¶4 ELLINGTON, Justice.

¶5 A Fayette County jury found Mustafa Mahdi guilty but

¶6mentally ill of the malice murder of John David Quincy III and

¶7guilty of possession of a knife during the commission of a felony.1 In

¶8 1 Quincy was stabbed to death on March 24, 2014. On April 4, 2014, a Fayette County grand jury indicted Mahdi for malice murder (Count 2), felony murder (Count 1), aggravated assault (Count 3), and possession of a knife during the commission of a felony (Count 4). At a July 2018 trial, the jury found Mahdi guilty but mentally ill of malice murder, felony murder, and aggravated assault, and guilty of possession of a knife during the commission of a felony. The trial court sentenced Mahdi to life in prison for malice murder and to a consecutive sentence of five years in prison for the possession charge. The aggravated assault count merged into the malice murder conviction, and the felony murder count was vacated as a matter of law. See Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). Mahdi filed a motion for new trial on August 6, 2018, which was amended on January 24 and February 10, 2020. Following a hearing, the trial court denied Mahdi’s motion for a new trial, as amended, on March 19, 2020. Mahdi initially appealed his convictions through appointed counsel in Case No. S20A1414, but this Court struck that appeal from our docket and remanded the case to the trial court to hold a hearing on Mahdi’s request that appointed appellate counsel be removed from the case and that Mahdi be this pro se appeal, Mahdi broadly asserts that the trial court, as well

¶9as his trial and appellate counsel, violated his constitutional rights.

¶10We discern from these claims that Mahdi contends (1) the trial court

¶11violated his due process rights by allowing his trial attorneys to

¶12present an insanity defense against his wishes; (2) he received

¶13ineffective assistance of trial and motion-for-new trial counsel; and

¶14(3) his trial and motion counsel violated his right to conflict-free

¶15representation. We affirm for the reasons set forth below.

¶16 The evidence at trial showed the following. In 2014, Mahdi

¶17lived with his grandmother, Blondyne Greer. On March 24, the day

¶18of Quincy’s death, Greer confronted then 17-year-old Mahdi about

¶19his misbehavior and failing grades. Upset that she was unable to

¶20handle Mahdi, Greer called her daughter, Darlene, and asked for

¶21help. Darlene told Greer that she would send her husband, Quincy,

¶22over to Greer’s house to pick up Mahdi.

¶23permitted to pursue his appeal pro se. Following a hearing, the trial court relieved appointed counsel from the case and allowed Mahdi to proceed pro se. Mahdi filed a timely notice of appeal, and the case was docketed to the April 2021 term of this Court and submitted for a decision on the briefs. 2 When Quincy arrived at Greer’s house that evening, he told her

¶24that he was going to get some of Mahdi’s clothes and take Mahdi

¶25home with him. Greer testified that she “heard a scuffle” while she

¶26was in her bedroom, and when she went to the living room, she saw

¶27Quincy on the floor, struggling with Mahdi. When Greer realized

¶28that Quincy was wounded and bleeding, she tried to get Mahdi off of

¶29Quincy by beating Mahdi with her cane. She heard Quincy say,

¶30“You’re killing me Mustafa.” Greer phoned the police, and a City of

¶31Fayetteville police officer responded within minutes.

¶32 The responding officer saw a bloody footprint on a rug inside

¶33the home. In the living room, he encountered Mahdi, who was

¶34standing over Quincy. Greer was cowering in a corner of the room.

¶35After a second officer arrived at the scene, Mahdi yelled, “I stabbed

¶36him. I stabbed him.” The officers arrested Mahdi and took him to

¶37the hospital, where he received stiches in one finger.

¶38 Quincy was transported to a hospital, where he died. The

¶39medical examiner testified that Quincy suffered over 75 blunt- and

¶40sharp-force wounds to the neck, torso, extremities, head, and eyes,

¶41 3 including 11 deep stab wounds. Quincy died as a result of stab

¶42wounds to his neck and torso.

¶43 Police officers recovered a steak knife from the living room

¶44where Quincy had been. The blood on the knife contained the DNA

¶45of both Quincy and Mahdi.

¶46 Mahdi’s attorneys presented an insanity defense. Mahdi had

¶47begun acting strangely following the death of his mother in 2012.

¶48Greer testified that Mahdi did not like Quincy, whom Mahdi accused

¶49of “sexually harassing” him. A clinical psychologist, Dr. Robert

¶50Shaffer, opined that Mahdi was suffering from paranoid

¶51schizophrenia, including delusions that persons intended to sexually

¶52violate him or were actively sexually violating him. Shaffer testified

¶53that Mahdi believed that Quincy was going to kill or rape him on the

¶54night that he stabbed Quincy. In Shaffer’s opinion, Mahdi’s belief

¶55that he was in imminent danger was the result of his delusion.

¶56Mahdi did not testify at trial.

¶57 After the State presented rebuttal witnesses, forensic

¶58psychologist Dr. Darcy Shore testified as a court’s witness.

¶59 4 According to Dr. Shore, she had evaluated Mahdi pursuant to the

¶60court’s order and found no presence of a mental illness in Mahdi.

¶61 1. Mahdi contends that the trial court violated his right to due

¶62process under the Fourteenth Amendment to the United States

¶63Constitution because “the Court clearly saw [him] directly state that

¶64he was under no delusion[, and the Court] certainly could have ruled

¶65that [he] did not qualify for the insanity defense[,] . . . yet [the Court]

¶66opt[ed] to move forward[.]” To support this claim, Mahdi points to

¶67an ex parte discussion during the trial among himself, the trial

¶68court, and his two trial attorneys. During that proceeding, the court

¶69advised Mahdi of his right to testify and asked his attorneys to

¶70discuss with him whether testifying at trial was in his best interest.

¶71The court then allowed trial counsel to put on the record at the ex

¶72parte hearing any advice that they had given Mahdi. One of Mahdi’s

¶73trial attorneys stated that both attorneys had advised Mahdi not to

¶74testify. Counsel explained, among other concerns, that he

¶75anticipated such testimony would provide direct evidence that

¶76Quincy had molested Mahdi. Counsel assessed that such testimony

¶77 5 would make it more likely that the trial court would charge the jury

¶78on revenge for a prior wrong and would also make it more difficult

¶79for the defense to argue to the jury that there was no evidence that

¶80Mahdi had acted out of revenge.

¶81 Following counsel’s statement, Mahdi told the trial court that

¶82the “claims of [his] molestation [by Quincy] . . . are the central focus

¶83of [his] defense.” Mahdi also represented to the court that he had

¶84only realized during opening statements that his attorneys would

¶85maintain that “there is no objective evidence that any of these sexual

¶86abuses happened.” The trial court asked Mahdi to discuss with his

¶87attorneys further whether he should testify and to reflect carefully

¶88on that decision. Mahdi later acknowledged that he had freely and

¶89voluntarily decided not to testify.

¶90 Mahdi’s due process claim was not raised and ruled on below.

¶91Accordingly, this argument is not preserved for review on appeal.

¶92See, e.g., Hampton v. State, 308 Ga. 797, 804 (3) (a) (843 SE2d 542)

¶93(2020); Willis v. State, 304 Ga. 686, 695 (6) (820 SE2d 640) (2018);

¶94 Atkinson v. State, 301 Ga. 518, 522 (3) (801 SE2d 833) (2017).

¶95 6 2. Mahdi asserts several claims of ineffective assistance of trial

¶96and motion-for-new-trial counsel. To show ineffective assistance of

¶97counsel, Mahdi “must prove both that his lawyer’s performance was

¶98professionally deficient and that he was prejudiced as a result.”

¶99 Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325) (2020) (citation

¶100and punctuation omitted). See also Strickland v. Washington, 466

¶101U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Mahdi

¶102“fails to prove one element of this test, we need not address the other

¶103element.” Styles, 309 Ga. at 471 (5) (citation omitted).

¶104 (a) Mahdi argues that his trial counsel was ineffective (1) in

¶105not moving for a mistrial when, during the ex parte hearing, Mahdi

¶106asserted that he was not delusional and (2) in pursuing an insanity

¶107defense. “Claims of trial counsel ineffectiveness must be raised at

¶108the earliest practicable opportunity.” Terrell v. State, 300 Ga. 81, 86-

¶10987 (3) (793 SE2d 411) (2016) (citations omitted). Mahdi’s motion

¶110counsel asserted numerous claims of trial counsel ineffectiveness

¶111through amendments to Mahdi’s motion for new trial, and the trial

¶112court ruled that those claims were without merit. Although afforded

¶113 7 the opportunity to raise claims of ineffective assistance of trial

¶114counsel through motion counsel, Mahdi did not then raise the

¶115specific claims of ineffectiveness at issue in this appeal. Accordingly,

¶116these claims “are procedurally barred for failure to assert them at

¶117the first practicable opportunity.” Bedford v. State, 311 Ga. 329, 338

¶118(5) (c) (857 SE2d 708) (2021).

¶119 (b) Mahdi also contends that he received ineffective assistance

¶120of motion-for-new-trial counsel. In that respect, Mahdi argues that

¶121his motion counsel was ineffective for not claiming that his trial

¶122counsel was ineffective in (1) pursuing an insanity defense and (2)

¶123not fully explaining the insanity defense to him. Mahdi posits that

¶124his motion counsel should have questioned trial counsel about these

¶125issues at the motion-for-new-trial hearing.

¶126 Mahdi’s motion counsel was appointed to act as his appellate

¶127counsel following the trial. Motion counsel filed amendments to the

¶128motion for new trial filed by trial counsel, represented Mahdi at the

¶129motion hearing, and filed a notice of appeal to this Court after the

¶130 8 trial court denied Mahdi’s motion for new trial. As we noted above, 2

¶131this Court remanded that appeal to the trial court to consider

¶132Mahdi’s request that appointed appellate counsel be removed from

¶133the case and that Mahdi be permitted to pursue his appeal pro se.

¶134On remand, the trial court relieved motion counsel from his

¶135appointment as Mahdi’s appellate counsel and allowed Mahdi to

¶136proceed with this appeal pro se. Mahdi then asked the trial court for

¶137leave to file a second motion for new trial, but the trial court denied

¶138that request.

¶139 Given this case’s procedural posture, this appeal is the first

¶140practicable opportunity for Mahdi to assert that his motion counsel

¶141was ineffective. “Generally, when a preserved ineffective assistance

¶142of counsel claim is raised for the first time on appeal, we must

¶143remand for an evidentiary hearing on the issue.” Anthony v. State,

¶144 302 Ga. 546, 554 (V) (807 SE2d 891) (2017) (citation and punctuation

¶145omitted). However, this Court does “not allow a defendant to

¶146resuscitate a specific claim of ineffective assistance of trial counsel

¶147 2 See footnote 1. 9 that was not raised at the motion-for-new-trial stage by recasting

¶148the claim on appeal as one of ineffective assistance of motion-for-

¶149new-trial counsel for failing to raise the specific claim of trial

¶150counsel’s ineffectiveness.” Bedford, 311 Ga. at 339 (5) (c). Mahdi’s

¶151claims of ineffective assistance of motion counsel hinge on motion

¶152counsel’s failure to raise specific claims of trial counsel

¶153ineffectiveness at the motion-for-new-trial stage. “If [Mahdi] wishes

¶154to pursue a claim that his motion-for-new-trial counsel was

¶155ineffective in this regard, he must do so through a petition for a writ

¶156of habeas corpus.” Id. at 339 (5) (c).

¶157 3. Mahdi also claims that a conflict existed between “trial

¶158counsel/appellate counsel strategy and defense testimony,” 3 such

¶159that “trial and appellate counsel also violated the counsel without

¶160conflict” protections of the Sixth Amendment. Pretermitting

¶161whether these claims are preserved for appellate review, Mahdi

¶162 3 As we noted in Division 1, Mahdi did not testify at trial. In his appellate brief, Mahdi cites the transcript of his testimony at the hearing on the motion for new trial in support of his conflict claims. Mahdi testified at that hearing that he had been molested by Quincy and was not delusional. 10 provides no support for his proposition that an alleged conflict based

¶163on his counsels’ “strategy” rises to the level of an actual conflict of

¶164interest for the purposes of the Sixth Amendment. See White v.

¶165State, 287 Ga. 713, 722 (4) (a) (699 SE2d 291) (2010) (“The question

¶166of whether an attorney labors under an actual conflict of interest for

¶167purposes of the Sixth Amendment generally arises when the

¶168purported conflict stems from the attorney’s representation of

¶169multiple defendants concurrently [or] when the attorney’s duty of

¶170loyalty to his client conflicts with the attorney’s duty to the

¶171attorney’s employer.”) (citations omitted). His ill-defined argument

¶172is at best a matter of theory or speculation. See Henry v. State, 269

¶173Ga. 851, 854 (3) (507 SE2d 419) (1998) (For a criminal defendant to

¶174show counsel was ineffective due to a conflict of interest, “the conflict

¶175of interest must be palpable and have a substantial basis in fact. A

¶176theoretical or speculative conflict will not impugn a conviction . . .

¶177which is supported by competent evidence.”) (citation and

¶178punctuation omitted). Thus, the claim lacks merit. See id. See also

¶179 State v. Abernathy, 289 Ga. 603, 604 (715 SE2d 48) (2011) (“[A]

¶180 11 defendant asserting ineffective assistance of counsel based on an

¶181actual conflict of interest must demonstrate that the conflict of

¶182interest existed and that it significantly affected counsel’s

¶183performance.”) (citation and punctuation omitted).

¶184 Judgment affirmed. All the Justices concur.

¶185 12