Massingill v. State

366 Ga.App. 26

880 S.E.2d 599

MASSINGILL

v.The STATE.

A22A1407

Court of Appeals of Georgia.

November 2, 2022

Katie Hingerty Borodin, Eliot Jay Abt, for Appellant.

Leigh Ellen Patterson, Rome, Natalee Lyn Staats, for Appellee.

Reese, Judge.

A jury found David Lee Massingill guilty of stalking.¹ The trial court denied Massingill's motion for new trial, and he appeals. Massingill contends that (1) his trial counsel provided ineffective assistance, (2) the trial court erred in denying his motion for directed verdict, (3) the trial court erred in failing to strike a potential juror for cause, (4) the prosecutor committed misconduct during her closing argument, and (5) the cumulative effect of these errors deprived Massingill of a fair trial. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's verdict,² the record shows that Massingill and S. C. began a relationship in 2000 and began living together in 2009. After they began living together, Massingill became verbally abusive. He also threatened S. C., pushed her, and put his hands around her throat. S. C. was afraid to leave Massingill because she did not know what he would do to her. However, in May 2019, S. C. moved out.

After their breakup, S. C. purchased a new house, but Massingill found it. S. C. saw Massingill intermittently and stayed in contact with him in order to keep the peace. In January 2021, S. C. stopped responding to Massingill's text messages and phone calls and cut off all contact with him. She confided in her preacher that she was afraid of Massingill.

On January 26, 2021, S. C. was attending church services when Massingill arrived at the church. Two members of the congregation who provided security, including monitoring the parking lot, observed Massingill underneath S. C.’s vehicle. Another member of the congregation then discovered a GPS tracking device underneath S. C.’s vehicle. S. C. testified that she felt terrified when she learned that a tracking device had been installed underneath her car without her knowledge.

As set forth above, a jury found Massingill guilty of stalking, and the trial court denied his motion for new trial. This appeal follows.

In reviewing Massingill's claim of ineffective assistance of counsel, "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts."³ With these guiding principles in mind, we now turn to Massingill's specific claims of error.

1. Massingill argues that his trial counsel provided ineffective assistance in several respects.

To evaluate Massingill's claims,

we apply the two-pronged test established in Strickland v. Washington ,⁴ which requires him to show that his trial counsel's performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. Importantly, should a defendant fail to meet his burden on one prong of this two-prong test, we need not review the other prong. In addition, there is a strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. In fact, the reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. And decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.⁵

(a) Massingill contends that his trial counsel was ineffective when he failed to object to juror R. P. and failed to strike potential juror M. C. for cause.

"Which, and how many, prospective jurors to strike is a quintessential strategic decision."⁶

During voir dire, R. P. indicated that in 2006 or 2007, her husband had been charged with domestic violence and had accused her of falsifying documents, but that he was later found to have falsified documents. She ultimately served on the jury. Because R. P. expressed no fixed opinion as to Massingill's guilt or innocence, showed no bias, and confirmed that she could listen fairly and objectively to the testimony, Massingill has not shown that trial counsel was deficient in failing to object to R. P. serving as a juror.⁷

As to potential juror M. C., she disclosed during voir dire that, 20 years earlier, her ex-husband had tried to hire a hit man. Defense counsel used a peremptory challenge to strike her. At the hearing on the motion for new trial, defense counsel testified that he did not want M. C. to serve on Massingill's jury, but he saw no reason to strike her for cause. Counsel also explained that using a peremptory challenge to strike M. C. did not prevent him from striking any other potential jurors he wished to keep off of the jury. When defense counsel fails to strike a potential juror for cause, but uses a peremptory challenge to strike the same juror, and the defendant has not shown that any challenged juror who served was unqualified, the defendant has failed to show any reasonable probability that the outcome of the case would have been different but for counsel's alleged deficiency.⁸ Accordingly, this claim of ineffective assistance of counsel also fails.⁹

(b) Massingill next contends that his trial counsel improperly advised him regarding his right to testify and failed to object to possible impeachment evidence.

"A criminal defendant has a constitutional right to testify in his or her defense, that right is personal to the defendant, and the decision whether to testify is made by the defendant after consultation with counsel."¹⁰ "Defense counsel bears the primary responsibility for advising the defendant of his right to testify and the strategic implications of this choice, as well as for informing the defendant that the decision whether to testify is his to make."¹¹ Counsel's advice "is crucial because in the absence of an intentional relinquishment or abandonment of a known right or privilege, there can be no effective waiver of a fundamental constitutional right."¹²

On the first day of trial, Massingill announced through counsel that he intended to testify, and the trial court instructed Massingill that he had an absolute right to testify and that it was his right, not counsel's, to decide whether to testify. Following a further colloquy with the court, Massingill informed the court that he wished to testify, and the court found that he had been properly advised of his rights and that, with a full understanding of those rights, he had elected to testify.

After Massingill elected to testify, the State disclosed possible impeachment evidence, including evidence that Massingill had falsely reported a co-worker for sexual harassment. Defense counsel argued against the admissibility of the possible impeachment evidence, and the court announced that it would reserve ruling on admissibility unless and until Massingill testified. The court then recessed for the day so that Massingill and defense counsel could review the impeachment evidence. The following morning, the defense rested without Massingill testifying.

At the hearing on the motion for new trial, defense counsel testified that he saw nothing to be gained from Massingill testifying, but that Massingill fully understood his right to testify and was specifically advised that whether to testify was his decision. Initially, at the hearing, counsel denied that he had quantified for Massingill the chances of success at trial based on whether or not Massingill testified. Massingill, however, presented an audio recording of a phone call between himself and defense counsel in which defense counsel, at Massingill's request, quantified the likely chance of success depending on whether or not Massingill testified. The trial court specifically found defense counsel's testimony to be credible and, considering the totality of Massingill's recorded conversation and the court's instructions, found that Massingill understood it was his decision whether to testify.

As an initial matter, contrary to Massingill's argument, defense counsel did object to the impeachment evidence. Moreover, the trial court specifically found credible counsel's testimony that counsel had fully advised Massingill of his right to testify and the strategic implications of his choice, and we must accept that finding because it is not clearly erroneous.¹³ Accordingly, Massingill has not shown that his counsel's performance was deficient.

(c) Massingill contends that trial counsel provided ineffective assistance when he called Kenneth Smith as a defense witness.

"Strategic decisions regarding what witnesses to call after consultation with the client are virtually unchallengeable and do not amount to ineffective assistance."¹⁴

At trial, Smith testified that even after their breakup, Massingill and S. C. got along very well. Smith also testified that Massingill had put a GPS tracking device on S. C.’s vehicle prior to the incident at the church.

At the hearing on the motion for new trial, defense counsel explained that he interviewed Smith prior to trial, and he was aware that Massingill had talked to Smith about placing a tracking device on S. C.’s vehicle. Defense counsel nevertheless decided to call Smith as a witness because Massingill was "adamant" that he do so and because Smith provided some positive testimony. Counsel ultimately regretted his decision to call Smith.

Of course, "[e]ffectiveness is not judged by hindsight or by the result."¹⁵ It is not a ground for reversal that defense counsel made a strategic decision that the positive aspects of Smith's testimony outweighed the negative aspects, and the fact that, in hindsight, Massingill and trial counsel now question "the efficacy of the chosen defense strategy cannot establish...