Pugh v. State

899 S.E.2d 653

Andre PUGH

v.The STATE.

S23A1063

Supreme Court of Georgia.

March 14, 2024

Superior Court, Fulton County, Thomas Arthur Cox, Jr., Judge

Andrew Santos Fleischman, Sessions & Fleischman, LLC, 3156 Roswell Road, NE, Suite 220, Atlanta, Georgia 30305, David Edward Clark, Clarke & Towne, PC, 753 Cherokee Avenue SE, Suite A-55, Atlanta, Georgia 30315, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Michael Alexander Oldham, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Ruth M. Pawlak, A.D.A., 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, for Appellee.

Upon consideration, the Court has revised the deadline for motions for reconsideration in this matter. It is ordered that a motion for reconsideration, if any, including motions submitted via the Court’s electronic filing system, must be received in the Clerk’s Office by 12:00 p.m. on Friday, March 22, 2024.

Bethel, Justice.

Andre Pugh was convicted of the malice murder of his wife Tiffany Jackson-Pugh and possession of a firearm during the commission of a felony.¹ In this appeal, Pugh contends that the trial court erred by denying his motion to suppress evidence obtained pursuant to a search warrant for his cell phone records, that trial counsel was ineffective for failing to raise a particularity challenge to the same search warrant, and that motion-for-new-trial counsel was ineffective in various respects. Concluding that these claims are meritless, we affirm.

1. The evidence presented at Pugh’s trial showed the following. Around 6:00 a.m. on November 23, 2014, Tiffany was shot and killed while asleep in her bed at the Pughs’ East Point residence. At 6:05 a.m., Pugh called his boss to report that someone had broken into his home. Pugh’s boss drove to Pugh’s home, and when he arrived, Pugh indicated that he had not been inside the residence but had noticed a suspected intrusion upon his return from overnight employment. At approximately 6:15 a.m., Pugh called 911 and informed the operator that he was at the residence, the garage door was open, and a downstairs window was broken. He told the operator that Tiffany had been murdered but again claimed that he had not been inside the home.

When responding officers arrived, Pugh was outside the home, waving his arms, and exclaiming, "My kids are in there. She’s not picking up the phone." Pugh stated that he received a call from ADT, his alarm-service provider, alerting of a break-in at the residence. Pugh further noted that the garage door and a rear window were open. Pugh also called a neighbor early that morning while "it was still dark" to report that someone broke into the house, that "they hurt Tiffany," and that Pugh thought Tiffany was dead.²

Upon entering the house, officers found Tiffany in bed in the main-level bedroom; she was bleeding from a gunshot wound to her left eye, which was "obviously swollen and oozing," and had no pulse.³ Her crying toddler was sitting on her chest; two older children were asleep in an upstairs bedroom. Officers found the basement door and storm door unlocked, a basement window open with its screen cut, and the gate to the backyard open; during a sweep of the house, they found nothing else of interest.

That morning, Pugh, whom law enforcement did not yet consider a suspect in Tiffany’s murder, provided a statement to police, a video-recording of which was played at trial. According to Pugh, he left work around 5:15 a.m., and, sometime between 5:30 a.m. and 5:50 a.m. while driving home, he missed a call from ADT. Pugh returned the call and requested that ADT turn off the alarm so as not to disturb his children. Pugh stated that, upon arriving at home, he went inside to find the alarm still armed. When he turned on a light in Tiffany’s bedroom, he "just saw a body," but he claimed that he did not notice any blood and that she appeared to be sleeping. He also claimed that he did not try to wake Tiffany because he was "scared." Pugh then went downstairs and found broken glass. Pugh stated that he told responding officers that he could not find his son and that his wife was not moving. When asked why he left his children inside the home despite signs of an apparent break-in, Pugh responded that he did not want to wake the older children and that he was unable to find his son.

During the interview, Pugh expressly stated that he had only one cell phone; the next day, however, investigators learned that Pugh in fact had a second cell phone. Thereafter, officers secured search warrants to obtain the records for both phone numbers from Sprint, the cell-service provider, as well as for a tower dump of phone numbers used on the Sprint cell phone tower near Pugh’s residence around the time of the crime. By cross-referencing phone numbers appearing in the tower dump with those in Pugh’s contact list, investigators identified co-indictee Adrian Harley as a person of interest.⁴ Data from Pugh’s and Harley’s cell phones showed that both phones were near the residence just before the murder and that several calls were exchanged between the phones.

Investigators also obtained security footage from Pugh’s and a neighbor’s⁵ residences around the time of the murder, which investigators determined occurred at approximately 5:58 a.m. The footage showed two vehicles on the street and in the cul-de-sac near Pugh’s residence shortly before the murder. One vehicle, which had a non-operative driver-side parking light, first passed the neighbor’s residence at 4:50 a.m., corresponding to Harley’s phone records placing him in Pugh’s neighborhood at 4:49 a.m. That same vehicle pulled into the cul-de-sac about ten minutes before the murder, where it remained parked for several minutes. At 5:57 a.m., the vehicle’s headlights flashed, and a second vehicle pulled alongside it. At 5:58 a.m., the vehicle with the non-operative parking light moved forward and stopped in front of Pugh’s house for two or three minutes; the other vehicle drove away. Security footage showed that, soon thereafter, a light came on in the rear of the residence. Also at 5:58 a.m., Pugh received a phone call from ADT. Investigators later determined that the vehicle with the non-operative parking light matched the appearance of Harley’s vehicle, which also had a non-operative driver-side parking light.

At trial, the State presented evidence undermining Pugh's various stories about his actions on the morning of Tiffany’s murder. Records from ADT showed that ADT called Pugh at 5:58 a.m. and that Pugh returned the call at 6:03 a.m., contradicting Pugh’s claim that the call regarding the triggered alarm came between 5:30 a.m. and 5:50 a.m. Surveillance footage showed that, upon parking and exiting his vehicle in front of the home, Pugh in fact did not enter the home in the manner he described and instead waited for the police outside, despite his fairly detailed statement to the contrary.

The State also presented significant evidence of Pugh and Tiffany’s marital difficulties and impending divorce. In September 2014, Tiffany consulted a divorce attorney, made plans to move out of the marital residence on December 1, and intended to file for divorce. According to Pugh’s boss, Pugh was angry with Tiffany for wanting a divorce. Text messages between Pugh and Tiffany reflected discord in the relationship. Five days before the crimes, Pugh texted Tiffany, "I won’t let you leave me now or never." Tiffany responded that she took the statement "as a threat." In other text messages found on Pugh’s phone, Pugh engaged in sexually explicit conversations with multiple women, exchanged sexually explicit photographs with other women, and stated that he cheated on Tiffany every time she was out of town. In addition, a co-worker of Tiffany’s with whom she had a romantic relationship in the weeks before her death testified regarding Pugh’s suspicions about that relationship. Pugh’s boss testified that Pugh placed a second phone in Tiffany’s vehicle to use as a GPS tracker because Pugh had been "speculating" that Tiffany "was possibly cheating" and that Pugh had previously sent Harley to the marital residence to lock Tiffany out of the home.

Evidence of Pugh’s financial motive for the murder was also a prominent focus of the State’s case, with text messages showing that Pugh would be unable to maintain the marital home following the divorce. Within 36 hours after Tiffany’s murder, Pugh reported to his boss that he went to the social security office to "find out how much — what he can get for the passing of his wife" and that, "based upon what social security told him, he was going to be able to maintain paying his mortgage." And a family friend testified that, before Tiffany’s funeral, Pugh sought her help in contacting Tiffany’s employer’s benefits provider. Finally, the State presented testimony regarding Pugh’s unusual conduct and demeanor in the wake of Tiffany’s murder, particularly his general lack of emotion and apparently contrived expressions of grief.

2. On appeal, Pugh challenges the trial court’s denial of his motion to suppress evidence obtained pursuant to a search warrant for his cell phone records. As he did below, Pugh argues that the warrant application failed to establish probable cause to believe that he had committed a crime or that evidence of such crime would be found in the phone records. He also asserts for the first time on appeal that the warrant authorized the seizure of items for which there was no probable cause and, thus, was overbroad. And in a related claim, Pugh contends that trial counsel was ineffective for failing to challenge the warrant on particularity grounds.

(a) The search warrant at issue was obtained by Sergeant Allyn...