Thomas v. State

314 Ga. 681

878 S.E.2d 493

THOMAS

v.The STATE.

S22A0798

Supreme Court of Georgia.

Decided: September 20, 2022

Brian Steel, The Steel Law Firm, P.C., 1800 Peachtree Street, N.W., Suite 300, Atlanta, Georgia 30309, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Emily Rebecca Polk, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Richard Benjamin Caplan, Kevin Christopher Armstrong, Senior A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, Third Floor, Atlanta, Georgia 30303, Lyndsey Hurst Rudder, General Counsel, FSIG, 41 Islanders Retreat, Savannah, Georgia 31411, for Appellee.

Peterson, Presiding Justice.

Derrico Thomas appeals his convictions for malice murder and possession of a firearm during the commission of a felony, stemming from the shooting death of Orlando Young.¹ Thomas argues that (1) the trial court erred in admitting evidence of a prior shooting and his aggravated battery conviction that flowed from it; and (2) he was deprived of his right to testify due to the ineffective assistance of counsel. We conclude that although the trial court erred in admitting the evidence of the prior shooting, it is highly probable that the error in admitting the evidence about the shooting did not contribute to the verdict. And we conclude that Thomas has not met his burden to show that trial counsel was constitutionally ineffective. We therefore affirm Thomas's convictions.

The evidence presented at trial showed that Thomas shot and killed Young at a Fulton County apartment complex on August 29, 2013. Earlier in the day, at an apartment in the complex where Thomas and Young sold drugs, Thomas and Young had argued after Thomas refused Young's request to provide free marijuana to a young woman named Brittany. Young put his gun under his arm and left the apartment.

That night, Thomas was alone in the back of the apartment when Young returned home. Young handed his gun to another person before going alone toward the back of the apartment. Soon after, gunshots rang out from the back of the apartment. Thomas was seen emerging from the apartment holding a firearm. Young was found lying in the apartment with 12 gunshot wounds. A 911 call reporting the shooting was placed at 10:51 p.m. Young died of gunshot wounds to the head and torso.

1. Thomas argues that the trial court erred in admitting evidence of a prior shooting by Thomas that resulted in his conviction for aggravated battery. We agree but conclude that this error was harmless.

The State filed a pretrial notice of its intent to present evidence of an April 2009 shooting by Thomas under OCGA § 24-4-404 (b) ("Rule 404 (b)"). Thomas objected, arguing that it was not relevant for a proper purpose because the defense would not claim self-defense, accident, or duress; for that matter, intent would simply not be an issue in the case. And even if the evidence were relevant, Thomas argued, any probative value of the evidence would be substantially outweighed by its prejudice. The trial court ruled at the start of trial that the evidence was admissible to show intent, motive, and "possibly" absence of mistake or accident, depending on what was presented at trial.

During the trial, over renewed defense objections, the State presented testimony from Thomas's former girlfriend about the April 29, 2009, shooting of Eric Ellis. The former girlfriend, Laney McLester, was dating Ellis at the time of the shooting. According to that testimony, McLester had loaned Ellis her car, and Ellis called her, upset, to report that Thomas had taken the keys from him. Thomas called McLester about an hour later to report that he had shot Ellis. The jury heard from an officer who responded to the incident; he testified that he responded to a call about the shooting of Ellis at about 11:00 p.m., about a block away from the location where Young was shot years later. The jury also was informed that Thomas pleaded guilty to aggravated battery in February 2010, admitting that he had maliciously caused Ellis bodily injury by rendering his legs useless, shattering his jaw, and puncturing his lung. Although the court initially gave a limiting instruction to the jury that it was to consider the other-acts evidence only to establish intent, motive, or absence of mistake or accident, in two later instructions, including during its closing charge, the court told the jury that it could consider the evidence only for intent or motive. On appeal, the State defends only intent and motive as possible bases for admission of the evidence.

Under Rule 404 (b), "[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith[,]" but such evidence may be admissible for other purposes, including to prove intent and motive. See OCGA § 24-4-404 (b) (containing non-exhaustive list of permissible purposes); State v. Jones , 297 Ga. 156, 159 (2), 773 S.E.2d 170 (2015) (Rule 404 (b) "is, on its face, an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered into evidence"). When the State seeks to introduce other-acts evidence under Rule 404 (b), it must show that (1) the evidence is relevant to an issue in the case other than the defendant's character; (2) the probative value of the evidence is not substantially outweighed by its unfair prejudice under OCGA § 24-4-403 ("Rule 403"); and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act. See Jones v. State , 301 Ga. 544, 545, 802 S.E.2d 234 (2017). We review the trial court's decision to admit Rule 404 (b) evidence for an abuse of discretion. See Kirby v. State , 304 Ga. 472, 479 (4), 819 S.E.2d 468 (2018). Here, we conclude that the trial court abused its discretion in admitting the other-acts evidence for the purposes of intent and motive, but that error was harmless.

(a) Intent

The trial court abused its discretion to the extent that it admitted the other-acts evidence for the purpose of showing intent. Thomas concedes that the other-acts evidence was relevant to the issue of intent. See Olds v. State , 299 Ga. 65, 72 (2), 786 S.E.2d 633 (2016) ("[E]vidence that an accused committed an intentional act generally is relevant to show ... that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed close in time and in similar circumstances."). But Thomas argues that the probative value of the evidence for that purpose was substantially outweighed by unfair prejudice, and we agree.

As to the second Rule 404 (b) prong, in evaluating the probative value of other-acts evidence offered to prove intent, we consider the overall similarity between the other acts and the charged crimes, the other act's temporal remoteness, and the prosecutorial need for the evidence. See Hood v. State , 309 Ga. 493, 501 (2), 847 S.E.2d 172 (2020). Here, the other act and the charged crimes were somewhat similar in that both involved shooting the victim in the head and torso over a personal dispute and took place within a block of one another and at similar times of the evening. The shooting of Ellis took place less than four-and-a-half years prior to the shooting of Young, which is not so remote as to be lacking in evidentiary value, particularly given that it appears that Thomas was incarcerated for a substantial portion of the time between the two shootings. See Jones v. State , 311 Ga. 455, 464 (3) (b) (ii), 858 S.E.2d 462 (2021). But, although the trial court accepted the State's characterization that each shooting involved "some type of dispute over a girl," that broadly stated connection is not a very meaningful similarity. See Jackson v. State , 306 Ga. 69, 77-78 (2) (b) (ii), 829 S.E.2d 142 (2019) (rejecting the State's "general" treatment of similarities between other-act evidence and the charged crime, and undertaking a "more careful and granular comparison of the two incidents").

Moreover, the State had little, if any, need for extrinsic evidence to show that Thomas had the intent to murder or assault Young. As the parties framed the issue for the jury, either Thomas shot Young 12 times intentionally with the requisite intent, or he did not shoot him at all; there was no suggestion in the case that Thomas shot Young in self-defense or, even more improbably, that the 12 shots were all fired by accident. Although the State emphasizes that Thomas appears to have requested, and received, a jury charge on mere presence, the defense did not argue to the jury that Thomas was present for the shooting but did not have the requisite intent for conviction. Rather, the defense argued in closing that the State's witnesses were not credible and someone else killed Young, telling the jury, "[t]he issue is whether Derrico Thomas was there." Indeed, the State in its closing argument also framed the choice before the jury as whether to conclude that Thomas "murdered Orlando Young" or "he wasn't there."

Given the limited similarities and minimal prosecutorial need for the evidence, it had little probative value as to intent. And evidence that Thomas had previously committed a shooting that severely injured the victim certainly held considerable potential for unfair prejudice. Moreover, the prosecutor discussed the other-acts evidence in closing argument, highlighting the injuries that Ellis suffered as a result. And the jury does not appear to have learned what, if any, punishment Thomas received for that act, which may have "increased the risk that the jury would want to punish [him] for his past conduct, rather than only for the charged crimes." Jackson ,...