Cartwright v. Caldwell

305 Ga. 371

825 S.E.2d 168

CARTWRIGHT

v.CALDWELL

S18A1396

Supreme Court of Georgia.

Decided: March 4, 2019

J. Mark Shelnutt, for appellant.

Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vanessa T. Sassano, Assistant Attorney General, for appellee.

NAHMIAS, Presiding Justice.

During his 2007 trial, Derrick Cartwright asserted an alibi defense to charges of murder and other crimes in connection with the shooting death of Kevin Stafford. Cartwright was convicted and sentenced to serve life in prison plus five years. On direct appeal, he claimed among other things that his trial counsel provided ineffective assistance by failing to challenge Detective Andrew Tyner's testimony that Cartwright had not mentioned his alibi during his post-arrest police interview. Cartwright contended that during a preliminary hearing, Detective Bernard Spicer, the lead investigator in the case, testified that Detective Tyner told him that Cartwright had mentioned his alibi during the interview. This Court affirmed Cartwright's convictions, rejecting his claim that his trial counsel provided ineffective assistance by failing to introduce Detective Spicer's testimony; we held that Cartwright had not shown prejudice because at the motion for new trial hearing, he failed to call Detective Spicer as a witness or introduce a transcript of the detective's preliminary hearing testimony. See Cartwright v. State, 291 Ga. 498, 500, 731 S.E.2d 353 (2012).

Cartwright then filed a petition for habeas corpus, alleging among other things that his appellate counsel provided ineffective assistance by failing to introduce evidence to prove trial counsel's ineffectiveness in failing to impeach Detective Tyner. The habeas court denied the petition. We granted Cartwright's application to appeal to consider whether the habeas court erred in ruling that Cartwright had not shown that his appellate counsel provided ineffective assistance. We conclude that the habeas court's ruling was erroneous, and we therefore reverse the denial of habeas relief.

1. (a) The evidence presented at Cartwright's trial showed the following.¹ In the early morning hours of April 3, 2006, police officers responded to reports of a car crash at the corner of 35th Street and 6th Avenue in Columbus. At the scene, officers found a car that had crashed into some steps outside a house; in the driver's seat was Kevin Stafford, who had been shot once in the neck. He was taken to a hospital, where he soon died from the gunshot wound.

Officers investigating the shooting found a shell casing, a bullet jacket, and a bullet fragment in Stafford's car. A ballistics examiner later determined that the bullet jacket and fragment were fired from a .380-caliber pistol and that the shell casing was consistent with being fired from a .380-caliber pistol. The police did not find a gun at the scene.

About two weeks later, an officer interviewed Diane Ruhl, who lived on 6th Avenue. She said that she had seen Derrick Cartwright shoot Stafford after Cartwright asked Stafford, "where is my $40.00, mother f* *ker?" Ruhl also identified Cartwright as the shooter in a photo lineup. The police then obtained a warrant for Cartwright's arrest, and he turned himself in on April 26. He was interviewed by Detective Tyner later that day. On November 28, 2006, a Muscogee County grand jury indicted Cartwright for malice murder, felony murder based on aggravated assault, aggravated assault, and possession of a firearm during the commission of a crime.

At a trial that began on April 30 and ended on May 3, 2007, the State presented testimony from four eyewitnesses who identified Cartwright in court as the shooter. Ruhl and her friend Antonio Willis, who is known as "T-Mac" and who was selling cocaine near 35th Street at the time of the shooting, both testified that sometime between 3:00 a.m. and 4:30 a.m., Stafford pulled his car over on 6th Avenue, and Cartwright approached Stafford, who was sitting in the driver's seat; Cartwright told Stafford that he owed Cartwright $40, and they began to argue; Cartwright shot Stafford; and Stafford then fled in his car before crashing. Willis testified that Cartwright had been carrying a .380-caliber gun earlier that evening.² Willis also testified that on the day after the murder, Cartwright asked him if anyone had said that Cartwright was involved in the shooting. Willis was asked at trial if he had any involvement in the shooting, and he denied it.

In addition, Marcus Brown and his sister, who had both been at a party near 6th Avenue just before the murder, identified Cartwright as the shooter in photo lineups before trial and later testified that they saw Cartwright shoot Stafford.³ Brown also testified that while he was in a holding cell in the courthouse with Cartwright on the second day of the trial, Cartwright had threatened him, saying that he "had better tell people [he] didn't know [Cartwright]."

Cartwright presented an alibi defense at trial. He did not testify, but he presented testimony from five witnesses—his mother, two sisters, his sister's boyfriend, and a family friend—to support his claim.⁴ The defense also presented testimony from two other witnesses who claimed that Willis told them that he shot Stafford over a drug dispute.⁵ In addition, Cartwright impeached Ruhl and Willis with evidence of their felony drug convictions, elicited Ruhl's admission that she had used cocaine just before the shooting, argued in closing that Brown and his sister were biased in favor of the State because Brown was facing felony charges at the time of trial, and pointed out inconsistencies between the witnesses’ accounts of the shooting.⁶

To rebut Cartwright's alibi defense, the prosecutor asked Detective Tyner multiple questions to establish that Cartwright had not mentioned his alibi during his post-arrest interview.⁷

Cartwright's trial counsel did not cross-examine Detective Tyner about Cartwright's statements during the interview.⁸ During closing arguments, the prosecutor repeatedly asserted that Cartwright never mentioned his alibi to Detective Tyner; said that Detective Tyner's testimony in that respect was "undisputed evidence"; and argued over and over again that Cartwright must have invented his alibi after his interview and then asked his mother and sister to testify to the alibi at his preliminary hearing a week later.⁹

The jury found Cartwright not guilty of malice murder but guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a crime.¹⁰ He was sentenced to serve life in prison for felony murder and five consecutive years for the firearm offense; the aggravated assault count merged.

(b) Cartwright filed a motion for new trial, which he amended twice with new counsel, claiming among other things that his trial counsel provided ineffective assistance by failing to impeach Detective Tyner's testimony that Cartwright had not mentioned his alibi during his post-arrest interview. Cartwright asserted that at his May 2006 preliminary hearing, Detective Bernard Spicer, the lead investigator in the case, testified that Detective Tyner told him that Cartwright said in his interview that he was at home with his mother and sister at the time of the murder. After an evidentiary hearing, the trial court denied Cartwright's motion for new trial in November 2011.

Cartwright then filed an appeal raising the same ineffectiveness claim, among other things.¹¹ In September 2012, this Court affirmed Cartwright's convictions. See Cartwright, 291 Ga. at 501, 731 S.E.2d 353. As to his claim that his trial counsel provided ineffective assistance by failing to impeach Detective Tyner's testimony, we noted that a defendant who bases an ineffective assistance claim on counsel's decision not to call a particular witness may not rely on hearsay or speculation regarding what the witness would have testified to. See id. at 500, 731 S.E.2d 353. We then said:

Cartwright did not call Detective Spicer to testify at the motion for new trial hearing, nor did he introduce a transcript of the detective's testimony from the preliminary hearing. As such, Cartwright has failed to establish a reasonable probability that the outcome of the trial would have been different if Detective Spicer's testimony had been introduced to impeach that of Detective Tyner. Therefore, the second prong of the Strickland test is not met.

Id. (referring to Strickland v. Washington, 466 U.S. 668, 687, (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984) ).

(c) In September 2016, Cartwright, through new counsel, filed a petition for habeas corpus raising two claims, only one of which is raised in this appeal: that his appellate counsel provided ineffective assistance by failing to introduce evidence at the motion for new trial hearing to prove trial counsel's ineffectiveness in failing to impeach Detective Tyner's testimony that Cartwright had not mentioned his alibi during his post-arrest interview. At an evidentiary hearing in January 2017, Cartwright introduced into evidence, without objection, the transcript of his preliminary hearing. The transcript shows that Cartwright's pre-trial attorney asked Detective Spicer: "[D]o you know if ... within [Cartwright's post-arrest interview, Cartwright] told Detective Tyner that ... at the time of this alleged murder ... he was at home with his mama and sister?" Detective Spicer answered, "Yes, sir. Detective Tyner did relate that to me."

At the habeas hearing, Cartwright also introduced into evidence, without objection, an affidavit from Detective Spicer stating that "Detective Tyner did relate to me that Cartwright stated [in the interview] that at the time of the murder, he was at home with his mother and sister." Detective Spicer also said that Cartwright's trial and appellate attorneys never interviewed him about the case or called him as a witness. See OCGA § 9-14-48...