Lee v. State

314 Ga. 724

879 S.E.2d 416

LEE

v.The STATE.

S22A0720

Supreme Court of Georgia.

Decided: October 4, 2022

Lynn M. Kleinrock, Law Office of Lynn M. Kleinrock, 3754 LaVista Road, Suite 250, Tucker Georgia 30084, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Michael Alexander Oldham, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta Georgia 30334, Patsy A. Austin-Gatson, District Attorney, Clifford Louis Kurlander, A.D.A., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville Georgia 30046, for Appellee.

McMillian, Justice.

After a jury trial in 2019, Harvey Lee was convicted of malice murder in connection with the shooting death of George Young.¹ On appeal, Lee claims that trial counsel rendered constitutionally ineffective assistance by failing to object to (a) evidence of George's good character, (b) a photograph of George in life with his children, and (c) the presentation of and comments on Lee's silence after he was advised of his rights under Miranda .² Because Lee has not shown reversible error, we affirm his convictions.

The evidence presented at trial showed that George and Tia Young were married and lived in Gwinnett County with their three children. George worked in security and, in an effort to help Lee, a family friend, hired Lee as a subcontractor and allowed him to live in the family's home.

Late on the night of November 16, 2017, George arrived home from work and was shot twice on his front porch. Phone records show that George was on the phone with his co-worker, Latanya Knowles, while in the car on his way home until the call ended at 11:23 p.m. Knowles testified at trial that she and George spoke until he said he arrived home and that George did not mention anything out of the ordinary during this call.

At 11:31 p.m., Tia called 911, and at 11:40 p.m., police officers arrived to find George deceased, lying on his back on the front porch with his feet facing the door. The autopsy showed that two gunshot wounds had entered the front of George's body, and the medical examiner testified that these wounds were the cause of George's death. George's keys were still in the door, and a shell casing was recovered from the porch. The home had a security system with a camera facing the front door, but the device was not working at the time of the shooting. George's eldest son testified that the camera had been broken for many months.

When interviewed by police officers at the scene, Lee said that he was sitting at the kitchen table on his computer when he heard gunshots. He then ran upstairs to get his pistol, came downstairs, and saw George. Lee ran back upstairs, put the gun away, and told Tia to call 911. Lee told the officers that he returned to George and performed CPR until a neighbor arrived and took over for him.

Tia told officers at the scene that she woke up to the sound of two gunshots. She said that Lee went to grab his gun and told her to call 911, which she did. When asked about problems in the home, Tia told officers that they "stay broke." She said she recently lost her job and that George had been borrowing money from different people. She also told officers that George had previously mentioned that a white SUV followed him on two occasions, and that, on one of these occasions, the SUV tried to run George off the road.

One neighbor testified that he heard gunshots and, after consulting with his family about the noise, looked out of his window where he could see the front of the Young house. Less than ten minutes after hearing the gunshots, the neighbor noticed a person moving from the direction of the Young house to a vehicle in the Young driveway and testified that the person was "hunched over or ... did something to the vehicle" before running back toward the house. The neighbor continued watching and saw the person do the "exact same thing again" a minute or two later.

George and Tia's three children slept through the events and neither heard nor saw anything. The oldest child testified that he was a heavy sleeper. Another of the children was prescribed sleeping medication, and although he did not take it regularly, Tia had given him a sleeping pill that night. Tia's mother, who also lived in the home, explained that she did not hear anything because her television's volume was high. Seven neighbors testified at the trial about hearing the gunshots, but only one testified about hearing a car leave the scene after the gunshots.

Officers searched the home and found two handgun holsters and one handgun in Lee's room, as well as a rifle in Lee's truck. A GBI firearms examiner determined that the shooter used a .40-caliber Smith and Wesson. This weapon was never located, and there was no evidence that Lee owned a .40-caliber Smith and Wesson. Crime scene technicians performed gunshot residue tests and found no residue on Lee's hands. No fingerprints were found on the bullets.

On November 17, the morning after the shooting, George's employer went to the Young home, and Tia asked him to help her find George's one-million-dollar life insurance policy, of which she was the primary beneficiary. Tia located the policy and notified the insurance company of George's death later that day.

That same day, Lee went to George's office building. He told one of George's co-workers that George had been shot and killed. The co-worker asked about the home's surveillance camera, and Lee replied that the camera was not working. Lee then asked the co-worker if he could continue to work for the security company as a subcontractor.

Later that same day, police officers asked Lee and Tia to go to the police station to speak with a detective, and they agreed. During Lee's interview, investigators questioned Lee about an individual going to the victim's vehicle after George was shot. Lee told officers that he was removing a tracking device that he had placed under George's car. Lee also said that George had asked Lee to buy the tracking device, and if anything happened to George, George wanted Lee to know where George's car was and to take the tracking device off. Lee did not provide evidence of this agreement with George, and further, text messages between George and Lee introduced at trial contradicted the idea that George was aware of or consented to the tracking device on his car. Lee told the investigators that the tracking device was in his bedroom.

The evidence introduced at trial also showed that, while away from home on November 17, Tia called a friend who had come to the Young home after hearing of George's death. Tia asked the friend to find the cell phones belonging to both Tia and Lee and place the phones in Tia's room. The friend did not comply with this request. At trial, the friend testified that Tia apologized and explained that she made the request because one of Lee's texts would have made him seem violent. The friend testified that Tia did not give an explanation for why she also asked the friend to move her phone as well.

After the interviews, officers went to the Young home with a search warrant, seized the tracking device from Lee's bedroom, and subpoenaed records from the device. Officers also recovered cell phones from the home. Lee's phone revealed internet searches on October 28, 2017, about poisonous snake or spider venom for sale. Lee's phone history also showed that on the night of the shooting, while officers were still on the scene, Lee looked up a different murder case and an article about the defendant in that case pleading guilty. Tia's phone revealed a meme that said: "The fortuneteller says your husband will meet a violent end. The lady responds, will I be convicted?" The cell phone also contained emails showing a romantic affair between Lee and Tia. Both Lee and Tia were arrested for George's murder.

1. Lee asserts that he received constitutionally ineffective assistance of counsel on the grounds that his counsel failed to object to (a) evidence of George's good character, (b) a photograph of George in life with his children, and (c) the introduction of and comment on Lee's post- Miranda silence.

To succeed on his claim of ineffective assistance, Lee must prove both that "his counsel's performance was professionally deficient and that he suffered prejudice as a result." Washington v. State , 313 Ga. 771, 773 (3), 873 S.E.2d 132 (2022). To show deficient performance, Lee "must prove that his counsel acted or failed to act in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms." Kennebrew v. State , 299 Ga. 864, 868 (2), 792 S.E.2d 695 (2016). Lee bears the burden of overcoming the "strong presumption" that counsel performed reasonably. Washington , 313 Ga. at 773 (3), 873 S.E.2d 132 (citation and punctuation omitted). To show prejudice, Lee "must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Kennebrew , 299 Ga. at 868 (2), 792 S.E.2d 695 (citation and punctuation omitted). Additionally, "there is no reason for a court deciding an ineffective assistance claim to ... address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington , 466 U.S. 668, 697 (IV), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

(a) Lee asserts that his trial counsel performed deficiently by failing to object to the State's evidence of, and repeated references to, George's good character throughout the trial. We disagree.

At trial, the State introduced evidence regarding George's good character as part of its trial theme: "beloved became betrayed" when George, a "beloved" man, was betrayed and killed by Lee and Tia. Discussion of George's...