Moss v. State

312 Ga. 202

862 S.E.2d 309

MOSS

v.The STATE.

S21A0623

Supreme Court of Georgia.

Decided: August 10, 2021

Konrad Gerhard Waldemar Ziegler, Lee & Ziegler, LLP, 150 North Street, Suite M, Canton, Georgia 30114, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Debra Rhodes Neumann, A.D.A., William Patrick Doupé, District Attorney, Toombs Judicial Circuit District Attorney's Office, P. O. Drawer 966, Thomson, Georgia 30824, Steven Tyler Normandia, A.D.A., District Attorney's Office for the Western Judicial Circuit, 325 E. Washington Street, Rm 370, Athens, Georgia 30601, for Appellee.

Bethel, Justice.

Lenny Ozzylee Moss was found guilty of the malice murder of Tyisha Davis and other offenses at a bench trial before the McDuffie County Superior Court. Following the denial of his motion for new trial, Moss appeals, arguing that we should reverse his murder conviction because his trial counsel had a conflict of interest which prevented her from vigorously cross-examining a State witness she had previously represented in an unrelated criminal matter. We affirm.¹

1. The evidence presented at trial showed the following. Moss and Davis were married and had four children together — L. M., A. M., J. M., and M. M. — who ranged in age from one year old to six years old at the time of the crimes. The relationship between Moss and Davis was marred by several incidents involving physical violence. As a result, Moss and Davis separated in the fall of 2016, and Davis lived for a time at her grandmother's house with the children.

In December 2016, Davis moved with her children back to the house she previously shared with Moss and changed the locks. In the days just before Davis and the children moved back to the house, Moss was staying overnight elsewhere but had been coming to the house periodically to pick up clothing and shower. Jacorbin Ivey and C. I., Davis's brother and sister, came to stay with Davis.² Davis told Ivey that Moss had threatened to kill her, and Ivey testified that he was staying with Davis "for her protection."

On the evening of December 20, 2016, Davis, Ivey, C. I., and Davis's children were at the house. Davis's cousin, O. W., and Ivey's friend, T. M., were also visiting the house that evening.³ T. M. was in the kitchen with Davis and C. I. as they were preparing dinner.

At some point that evening, Moss sent Davis a text message that said, "If I can't have you, nobody else can." Davis replied that she did not want to be with him and that he should stop texting her; she then blocked his number.⁴ A few minutes later, Moss knocked on the front door, and one of his children let him in. Moss came in the house, pointed his gun at T. M., and said, "Why you in my house?" T. M. ran into the back bedroom and hid in a closet with Ivey. Moss walked down the hallway with his gun and pointed it at O. W.

Moss then went into the kitchen to confront Davis. C. I. began to run out of the house, and Davis told Moss to put the gun down. Moss then shot Davis in the chest, knocking her to the ground. C. I. ran out the front door and to a neighbor's house where she called 911. The children, who were in the living room, tried to run out of the house to C. I., but Moss "grabbed them" and "put [them] back in the house."

After hearing gunshots, O. W. also called 911. Moss then went outside, walked around the house to the back bedroom window, and fired several shots through the window and into the room where Ivey and T. M. were still hiding. Moss then fled.

Several police officers arrived in response to the 911 calls. One officer went inside the house, where he found the children in the living room sitting on the couch and crying. One of the children said, "He shot my mama, he shot my mama." The officer removed the children from the house and took them to the neighbor's house across the street.

The officer then found Davis's body in the kitchen. She was wearing only a t-shirt and socks. By the time the officer reached her, she had no pulse, and efforts to revive her were unsuccessful. The medical examiner testified that Davis suffered gunshot wounds to her chest and right groin. The shot fired at Davis's chest appeared to have been fired from less than a foot away and was fatal. The gunshot wound to her groin appeared to have been inflicted as she lay on the kitchen floor.

Moss testified in his own defense at trial as follows. Davis had once told him that another man was the father of M. M. Moss had never met T. M. prior to the night of the shooting, but he claimed that, before the shooting, he saw a video on Facebook in which T. M. was in the house with Moss's children and referred to them as his "stepkids." Moss also claimed that he saw text messages sent between Davis and T. M. (and between Davis and several other men).⁵

As to Davis's shooting, Moss learned on December 20 that Davis and the children had moved back into the house. Earlier in the day, Davis asked him to buy several items from the store and bring them to the house. Moss came to the house that night and saw Davis through the kitchen window as Moss was pushing a trash can to the street. He also saw T. M., whom he did not recognize at the time, sitting at the kitchen table. Davis was wearing only a t-shirt and socks. T. M. then approached Davis and began kissing her, grabbing her breasts, and reaching under her shirt. Moss "got a raise of energy," finished pushing the trash can to the street, came around the house, and knocked on the front door. After one of the children let him in, Moss saw T. M. and was "spooked." He approached T. M. and said, "Who are you? What are you doing in my house?" Moss then "blacked out," "lost it," and began firing his gun.

Moss testified that he had no intention of harming anyone when he went to the house that night. He felt "rage" when he saw T. M. touching Davis, and he recalled chasing T. M. down the hallway to the bedroom and firing into the bedroom. He did not realize that Davis had been shot until he came back up the hallway. He then grabbed several items from the house and ran away. He later admitted firing four shots into the bedroom from outside after he left the house. He stated that this was the first time he had ever caught another man "in the house with [Davis] while she's ninety percent naked."

Moss also called his sister, Lukenya Moss-Jones, to testify. She testified that she saw text messages sent between Davis and T. M. in October 2016 that suggested to her that the two of them had a relationship. Moss-Jones testified that she told Moss about the text messages. She testified that Moss had been suspicious "for years" that Davis had been unfaithful to him throughout their relationship and that another man was the father of one of the children.

Regarding Moss's assertion that he and Davis were in a relationship, T. M. testified that he knew Davis only through Ivey and that he and Davis did not have a relationship and had not met before the day of the shooting.⁶ Ivey testified that Davis and T. M. "didn't have nothing going on, nothing, nothing whatsoever." Finally, C. I. testified that Davis and T. M. were friends, that she did not see him touch Davis, and that there was no "intimate contact" between them.

2. In his sole enumeration of error, Moss argues that his right to the effective assistance of counsel under the United States Constitution and the Georgia Constitution was violated. See U.S. Const. amend. VI ; Ga. Const. of 1983, Art. I, Sec. I, Par. XIV. Moss argues, as he did before the trial court, that his trial counsel's previous representation of T. M. in an unrelated criminal matter created an actual conflict of interest that hindered counsel from vigorously cross-examining T. M. at trial. Moss argues that a more thorough cross-examination of T. M., specifically with respect to whether T. M. had any physical or romantic relationship with Davis or made any intimate contact with her on the night of the shooting, was critical to Moss's defense strategy of being found guilty of voluntary manslaughter rather than malice murder. We disagree that Moss has shown an actual conflict of interest on the part of his trial counsel.

(a) The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." Similarly, the Georgia Constitution of 1983 provides that "[e]very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel." Ga. Const. of 1983, Art. I, Sec. I, Par. XIV. "It is well established that the right to counsel protected by the Sixth Amendment and the Georgia Constitution is the right to the effective assistance of counsel." Edwards v. Lewis , 283 Ga. 345, 348 (2), 658 S.E.2d 116 (2008).

"One component of the right to the effective assistance of counsel is the right to representation that is free of actual conflicts of interests." Id. at 348 (2), 658 S.E.2d 116 ; see also Cuyler v. Sullivan , 446 U. S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

An actual conflict, for purposes of the right to counsel, "is a conflict of interest that adversely affects counsel's performance, not just a mere theoretical division of loyalties." (Citation and punctuation omitted.) Williams v. State , 302 Ga. 404, 408 (3), 807 S.E.2d 418 (2017). If the defendant shows that his trial counsel had an actual conflict of interest, he need not show that the outcome of the proceedings would have been different to receive a new trial. See Holloway v. Arkansas , 435 U. S. 475, 487-491 (II), 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Instead, prejudice is presumed if the defendant "demonstrate[s] that the conflict of interest existed and that it significantly affected counsel's...