Harper v. State

897 S.E.2d 818

HARPER

v.The STATE.

S23A0810

Supreme Court of Georgia.

Decided: February 6, 2024

Superior Court, Fulton County, Ural Glanville, Judge

Benjamin David Goldberg, The Law Office of Ben Goldberg, LLC, P.O. Box 427, Mableton, Georgia 30126, for Appellant.

Elizabeth Rosenwasser, Assistant Attorney General, Department of Law, 40 Capital Square, Atlanta, Georgia 30303, Fani T. Willis, District Attorney, Kevin Christopher Armstrong, Senior A.D.A., Fulton County District Attorney’s Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 80334, for Appellee.

McMillian, Justice.

On August 27, 2008, a jury found Terry Harper, along with his co-defendant Emmanuel Ruiz, guilty of murder and related charges in connection with the shooting deaths of Joe Luhrman, David Carty, and Tracy Glover in 2001.¹ On appeal, Harper contends that (1) his right to due process was violated by the "almost 20-year delay" between his conviction and his direct appeal; (2) the trial court abused its discretion in denying his motion for mistrial after the State referenced, in its opening statement, a response Harper gave to police questioning that Harper contends was previously excluded and "highly prejudicial"; and (3) he was, denied effective assistance of counsel when his trial attorneys failed to obtain and introduce evidence that he was suffering a "severe injury" to his dominant hand at the time of the shootings. We affirm for the reasons set forth below.

We recounted many of the facts in this case in our opinion affirming the conviction of Harper’s co-defendant, Ruiz, as follows:

Viewed in a light most favorable to the verdict, the evidence established that Ruiz had been paid $2,500 by Joe Lurhman, the proprietor of F.J.’s Tavern, to procure drugs. Ruiz, however, failed to deliver the drugs and on the afternoon of the shooting, Lurhman made several phone calls to Ruiz attempting to collect his money. That evening, Ruiz told a friend that he intended to go to FJ.’s Tavern to kill Lurhman and everyone else in the bar. Ruiz and co-defendant Terry Brandon Harper entered FJ.’s Tavern where Harper shot and killed Lurhman and bar patron David Carty. Ruiz fatally shot bartender Tracy Glover in the parking lot as she ran from the building after shots had been fired in the bar. Ruiz and Harper returned to Ruiz’s apartment where they solicited help from a Mend to dispose of the two murder weapons in nearby lakes. These were later retrieved by the police and identified as belonging to Ruiz.

Later on the night of the shooting, Ruiz telephoned his girlfriend and told her, "somebody went up to F.J.’s Tavern and took everyone out." He admitted to her that he shot a woman in the parking lot because she could have been a witness to the other shootings. Harper told others that he shot Lurhman and another, man who happened to be in the bar. Each victim died of multiple gunshot wounds.

At trial, Ruiz acknowledged through his attorneys that he shot and killed Glover as she ran through the parking lot, but he claimed that he "panicked" and shot her in self-defense.

Ruiz v. State, 286 Ga. 146, 147, 686 S.E.2d 253 (2009).

In addition to the facts recounted in the Ruiz opinion, the evidence at trial showed the following. The friend whose help Harper and Ruiz solicited to dispose of the guns testified at trial that on the evening the murders took place, he drove Harper to Ruiz’s apartment at around 8:00 or 8:30 p.m. The Mend said that he, Ruiz, and Harper drank alcoholic beverages and took Xanax. The Mend recalled that Ruiz and Harper left the apartment at around 9:00 p.m. after Ruiz received a phone call, while the Mend stayed behind and fell asleep. He was awakened sometime around 11:00 to 11:30 p.m, when Ruiz and Harper returned, stating that they needed "to get rid of a couple of guns." The Mend drove Harper to two nearby lakes where Harper threw out two guns, one gun into each lake, and then the Mend drove Harper home. The friend recognized the guns because Ruiz had shown them to him before.

Ruiz’s girlfriend testified that when she got to Ruiz’s apartment on the night of the shooting, the friend was there and she heard him tell Ruiz that he had dropped Harper at home and "they got rid of some guns." The friend later led investigators to the locations where Harper had thrown the guns, and police recovered the weapons. Ruiz’s girlfriend testified that the day after the shooting, Ruiz told her that he and Harper went to F. J.’s Tavern earlier on January 26, and Luhrman got mad at Harper, threatening that he would "go to Stockbridge to find" Harper. She also overheard Harper telling others that he walked into the tavern later that day and said to Luhrman, "Now come to Stockbridge and find me, motherf***er."

Harper said he then shot Luhrman and Carty, who was standing there at the time.

[1–3] 1. Harper first contends that the over-19-year delay between his conviction and his direct appeal violated his right to due process under the Fourteenth Amendment of the United States Constitution. We review Harper’s claim that his delayed appeal constituted a due process violation under the four-part balancing test set forth in Barker v. Wingo, 407 U.S., 514, 530 (IV), 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See Hyden v. State, 308 Ga. 218, 223, 839 S.E.2d 506 (2020) ("[S]peedy appeal claims are assessed by balancing the same four factors applicable to speedy trial claims as articulated in Barker v. Wingo"); Chatman v. Mancill, 280 Ga. 253, 256-57 (2) (a), 626 S.E.2d 102 (2006) (adopting the four-factor test for speedy-trial claims set forth in Barker for claims asserting violation of due process for lack of a timely appeal). Under that test, "the court must examine the length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant." Morris v. State, 308 Ga. 520, 525 (2), 842 S.E.2d 45 (2020) (citation and punctuation omitted). However, in a speedy appeal claim, unlike a speedy trial claim, the failure to show actual prejudice from the delay is "fatal to the claim, even when the other three factors weigh in the appellant’s favor." Veal v. State, 301 Ga. 161, 168 (3), 800 S.E.2d 325 (2017), overruled in part on other grounds in Johnson v. State, 315 Ga. 876, 889 (3) n.11, 885 S.E.2d 725 (2023). See also Leslie v. State, 292 Ga. 368, 373 (7), 738 S.E.2d 42 (2013); Whitaker v. State, 291 Ga. 139, 143-44 (3), 728 S.E.2d 209 (2012). "In evaluating a trial court’s decision to deny a speedy appeal claim, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion." Hyden, 308 Ga. at 224 (3), 839 S.E.2d 506 (citation and punctuation omitted).

The record shows that Harper was sentenced on August 29, 2003, and afterward, Harper’s first appointed appellate counsel, who was also one of his trial attorneys, filed a timely motion for new trial on September 5, 2003. After filing that motion, Harper’s first appellate counsel took no further action in his case and failed to communicate with Harper or his family when they reached out to him. It was not until July 10, 2014, after Harper began petitioning the trial court, pro se, for assistance in pursuing an appeal, that he was appointed a second appellate counsel, who filed an amended motion for new trial on November 23, 2015. A month later, however, on December 22, 2015, Harper filed a pro se motion asking that his second appellate counsel be removed and that his case be "stayed," and on March 31, 2016, Harper’s second appellate counsel filed a motion to withdraw. At an April 15, 2016, hearing on that motion, the second appellate counsel informed the trial court that Harper had initiated a bar complaint seeking to have her disbarred.²

No further court action occurred in the case until December 15, 2020, when a new judge who was assigned to Harper’s case³ scheduled a status conference for January 5, 2021. During that conference, the second appellate counsel appeared for Harper and asked the court to grant her still-pending motion to withdraw.⁴ On February 4, 2021, the trial court granted the second appellate counsel’s withdrawal motion and appointed Harper a third appellate counsel. After filing two motions for continuance to allow time to prepare a second amended motion for new trial, the third appellate counsel filed the second amended motion on October 6, 2021. Before a hearing could be held on the amended motion, however, Harpers third appellate counsel was appointed to be a judge, and he withdrew from Harper’s representation.

Harper’s third appellate counsel was replaced by Harper’s current appellate counsel, who, after obtaining a continuance, filed a third amended motion for new trial on September 29, 2022. The trial court denied Harper’s motion for new trial, as amended, on November 30, 2022, approximately nineteen years and three months after the first motion had been filed.

In denying the speedy appeal claim, the trial court considered the Barker v. Wingo factors. As for the first factor—the length of delay—the court found that the delay in the decision on the motion for new trial was lengthy and thus that the first factor weighed in Harper’s favor.

In addressing the reason for the delay under the second factor, the trial court divided the delay period into two parts: (1) the first twelve years, from September 5, 2003, when the original motion for new trial was filed, to the day the first amended motion for new trial was filed in November 2015; and (2) the last seven years, from November 18, 2015, when Harper decided that he did not want to be represented by his second appellate counsel, to November 30, 2022, the date of the...