Thomas v. State ( 2021 )

In the Supreme Court of Georgia
Decided: June 1, 2021
S21A0395. THOMAS v. THE STATE.
ELLINGTON, Justice.
A jury found Tony Thomas guilty of felony murder in the
shooting death of Dominique Boyer; malice murder in the shooting
deaths of Veondus Dennis and Antwan Wheeler; aggravated assault
against Fredrick Foster, Raheem Zeigler, Kevyn Courtney, and
Tiojah Johnson; and criminal gang activity. 1 On appeal, Thomas
1 The crimes against Boyer and Foster occurred on March 28, 2013; the
crimes against Dennis, Wheeler, Zeigler, Courtney, and Johnson occurred on
May 10, 2014. A DeKalb County grand jury returned an indictment against
Thomas for felony murder of Boyer predicated on aggravated assault (Count
1), malice murder of Dennis and Wheeler (Counts 6 and 10), felony murder
against Dennis and Wheeler predicated on aggravated assault (Counts 7 and
11), aggravated assault by shooting from within a motor vehicle in the direction
of each victim (Counts 2, 4, 8, 12, 14, 16, and 18), and seven counts of
participating in criminal street gang activity through the commission of the
charged murders and aggravated assaults (Counts 3, 5, 9, 13, 15, 17, and 19).
At a trial that ended on November 18, 2016, a jury found Thomas guilty on all
counts. The trial court sentenced Thomas to life in prison on Count 1 and life
in prison without parole on Counts 6 and 10 (the three murders), 20 years in
prison each on Counts 4, 14, 16, and 18 (aggravated assaults against the four
surviving victims), and 15 years in prison each on Counts 3, 5, 9, 13, 15, 17,
contends that the trial court plainly erred in failing to instruct the
jury on impeachment by a prior felony conviction and in denying his
motion for a new trial based on the State’s failure to disclose
evidence that two witnesses had felony convictions. Thomas also
contends that he received ineffective assistance of counsel. For the
reasons explained below, we affirm.
Pertinent to Thomas’s arguments on appeal, the evidence
presented at trial showed the following. 2
The 2013 Shooting (Boyer and Foster)
The first incident involved a drive-by shooting on March 28,
2013, at the Austin Oaks apartment complex in DeKalb County.
Foster testified that, at that time, he was a member of Blocc, a local
and 19 (street gang activity), with all sentences to run concurrently. Counts 7
and 11 (felony murder of Dennis and Wheeler) were vacated as a matter of law;
Counts 2, 8, and 12 (aggravated assault against Boyer, Dennis, and Wheeler)
merged with the respective murder counts. Thomas filed a timely motion for a
new trial, which he amended on February 26, 2018. The trial court conducted
a hearing on the motion on May 11, 2018, and denied the motion on August 3,
2020. Thomas filed a timely notice of appeal. The cases were docketed in this
Court to the term beginning in December 2020 and submitted for decision on
the briefs.
2 We remind litigants that the Court no longer routinely considers the
sufficiency of the evidence sua sponte in non-death penalty cases. See
Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020).
2
street gang. After school that day, Foster, Boyer, and two others
were sitting in front of an apartment building waiting for a friend
when a car approached. Shots were fired from inside the car as it
drove past, and Boyer was shot in the head. Foster testified that he
ran for cover when the shooting started and that he did not see who
the shooter was or how many people were in the car. Foster testified
that at the time of the shooting there was a “beef” between Blocc and
the Duct Tape Boyz gang (“DTB”), but he did not know whether the
shooting was gang-related.
Demetris Wilson, who was charged along with Thomas with
murdering Boyer, testified at Thomas’s trial. Wilson testified that
“Duct Tape” refers to the gang Duct Tape Boyz and also to the music
label, Duct Tape Entertainment, a business that includes many
people who are not in the gang. Wilson, who is known as “Peewee,”
testified that he was not a member of Duct Tape but that he was a
member of Runts, a gang that is “associated” with Duct Tape. Wilson
testified that, at the time of the shooting, he had a personal dispute
with Blocc. He testified that he had stolen a vehicle on the morning
3
of the shooting and gone out that afternoon with Deontay Cosby-
Hendon and three others to find and kill members of Blocc. Wilson
testified that he drove and that Cosby-Hendon and his friend, whom
Wilson knew only as “D-man,” shot at the victims. Wilson testified
that he had given Thomas a ride in the stolen car earlier that day
but that Thomas was not in the car during the shooting. He testified
that he had pleaded guilty to voluntary manslaughter for his role in
the shooting of Boyer and had been sentenced to 20 years with 15 to
serve in prison.
A detective testified that he and another detective interviewed
Wilson in June 2014, and an audio recording of the interview was
admitted and played for the jury. During that interview, contrary to
his trial testimony, Wilson stated that the shooters were Thomas
and Cosby-Hendon. Wilson picked Thomas out of a photo lineup and
stated that Thomas was in Duct Tape. An audio recording of a
telephone conversation Wilson had with his mother and
grandparents a few days before Thomas’s trial was also admitted
and played for the jury. During that call, Wilson stated that Thomas
4
was going to trial and that he was going to court to testify “to help
[Thomas] get out.” His grandmother asked if Thomas was the
shooter, and he replied, “yeah, him and [Cosby-Hendon].”
Another witness to the shooting, Marcus Emmett, was called
by the State, but he refused to be sworn, refused to state his name,
and answered “I don’t recall” to each of the State’s questions. A
detective testified about his interview with Emmett (an audio
recording of which was played for the jury), in which Emmett stated
that he was near Boyer when the shooting started and saw Wilson
driving the car, Thomas shooting from the front passenger seat, and
Cosby-Hendon shooting from the back. Emmett also told the
detectives that he had seen the same group driving around in the
same vehicle before the shooting that day and that they were looking
for Foster because of some type of “beef” between Foster and Wilson.
When the police recovered the vehicle Wilson drove during the
drive-by shooting, a cell phone case found inside the vehicle had
Thomas’s fingerprints on it.
The 2014 Shooting
5
(Johnson, Courtney, Dennis, Wheeler, and Zeigler)
Approximately a year after Boyer was killed, Johnson,
Courtney, Dennis, and Wheeler went to South DeKalb Mall to shop.
Raheem Zeigler testified that he and Wheeler were members of
Blocc and that Wheeler called him from the mall that day and said
that he had seen a person there whom Zeigler and Wheeler knew as
“Splash,” who was a member of the Fenesco City gang. Zeigler went
to the mall “to help [Wheeler] out.” Wheeler and Zeigler walked
around the mall to see what was going on. Zeigler testified that
Wheeler received a call from a Fenesco City member whom they
knew as “Umba.” Wheeler told Zeigler that Umba said he was
coming to the mall because he heard Wheeler and Zeigler were
there. Umba called again to make sure they were still there. Umba
called a third time and said he was waiting for Wheeler and Zeigler
behind the mall and that “Tony” was on his way to join them. Zeigler
took Wheeler’s phone and told Umba to stop calling them, and Umba
said that he had been waiting for a long time for Wheeler and Zeigler
to be together in one place.
6
Zeigler testified that, although he and Wheeler were armed, he
persuaded Wheeler not to meet the Fenesco City members to fight
because they did not know how many of them would be there. They
left the mall with Johnson, Courtney, and Dennis in Johnson’s car.
Courtney drove, Johnson sat in the front passenger seat, and
Dennis, Wheeler, and Zeigler sat in the back. Dennis told Courtney
where to turn to get to the house where Zeigler wanted to be dropped
off. When they were on Shamrock Drive in DeKalb County,
Courtney heard a window shatter and felt something hit her in the
back, and she realized she had been shot from a car that was behind
them. That car, a white Impala, pulled up close beside Johnson’s car.
Courtney and Johnson both saw two men, one in the front passenger
seat and one in the rear passenger seat, shooting multiple times into
Johnson’s car, primarily at the passengers in the back seat.
Courtney and Johnson saw that one of the guns had an extended
clip. Dennis and Wheeler were fatally shot in the head, and Zeigler
was shot in the arm. As the Impala sped away, Courtney, Johnson,
and Zeigler jumped out of the car. Johnson testified that Zeigler
7
started shooting at the Impala as it drove away. The police were able
to determine that one of the firearms used in the attack on the
occupants of Johnson’s car was an AK-47 rifle.
At trial, Zeigler testified that he did not see who was shooting
from the other car and in particular that he did not see Thomas. At
other points during his testimony, Zeigler changed his account,
admitted that he knew who carried out the shooting, and testified
that he did not identify the perpetrators to the police because he
planned “to handle it on the street” and avenge the deaths of his
friends Wheeler and Dennis by “kill[ing] somebody.” He admitted
telling detectives that Thomas was one of the shooters, but he
testified that he had only identified Thomas because “everybody . . .
kept throwing his name in, Tony this, Tony that” and that he
identified Thomas as a shooter so that he would be granted bond on
an aggravated assault charge that was pending against him. Zeigler
also denied ever having seen a line-up or filling out a form
identifying Thomas. Zeigler testified that Duct Tape was a record
label, although people associated with Duct Tape used hand signs,
8
and that there was “a petty beef” between Blocc and Duct Tape at
the time of the shooting that escalated into people getting shot.
Zeigler testified that Fenesco City is not Duct Tape, so the shooting
on Shamrock Drive did not arise from the “beef” between Blocc and
Duct Tape.
A detective testified that he interviewed Zeigler a few days
after the shooting. In a photo lineup, Zeigler identified Thomas as
one of three people he thought were “involved based on an
altercation that took place earlier that day at South DeKalb Mall.”
About a month after the shooting, the detective interviewed Zeigler
again. Zeigler told the detective that during the drive-by shooting he
had seen Thomas shooting at him with a “chopper” (slang for an AK-
47 rifle). The detective testified that Zeigler picked Thomas out of a
photo lineup, and he recorded his identification on a form and wrote
“Tony is the one who used the chopper who killed [Wheeler] and
[Dennis].” The State played an audio recording of the second
interview, when the detective showed Zeigler the line-up and he
filled out the form. Zeigler also told the detective that Thomas’s
9
Twitter page was “MoneyMakin_Tony.”
Shante Wheeler, the sister of victim Antwan Wheeler, testified
that there was “a little argument” between Blocc and DTB that
escalated into something bigger. Shante was not sure if DTB was a
music label or a gang. She testified that, on the day after her brother
was killed, Zeigler told her that “he looked up” from where he was
sitting in Johnson’s car and saw “Tony . . . with a gun and he was
shooting” from the other car, that he “looked [Tony] dead in his eye,”
and that he saw Tony “hanging out the window with the gun and . .
. shooting and he killed [Wheeler].” Shante testified that she told
Zeigler that she did not know Tony and “that’s when he told [her]
that Tony was in Duct Tape, DTB.” Shante asked Zeigler why he
had said nothing to the police, and he responded, “I didn’t tell the
police because I wanted to kill Tony myself.”
An investigator who was qualified as a gang expert testified
about a conflict between DTB and Blocc and explained that Fenesco
City is a subset of DTB. During the investigator’s testimony, the
State introduced social media posts by Thomas, and the investigator
10
testified about how the posts connected Thomas to Wilson, Cosby-
Hendon, DTB, and the 2013 and 2014 shootings.
1. Thomas contends that he was denied due process under
Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963),
and Giglio v. United States, 405 U. S. 150 (92 SCt 763, 31 LE2d 104)
(1972), because the prosecution failed to disclose evidence that
Emmett and Zeigler had felony convictions. In addition, Thomas
contends that he received constitutionally ineffective assistance of
counsel, based on his trial counsel’s failure to investigate the
criminal histories of the witnesses and discover Emmett’s and
Zeigler’s convicted-felon status. Thomas argues that he was
prejudiced by the purported Brady-Giglio violation, and by counsel’s
failure to impeach Emmett and Zeigler with evidence of their felony
convictions, because they were the only witnesses who directly
incriminated him. Thomas contends that the trial court erred in
denying his motion for a new trial on these grounds.
The record shows that in 2014 Emmett pleaded guilty in
DeKalb County to theft by receiving stolen property and burglary in
11
the first degree and that in 2015 Zeigler pleaded guilty in DeKalb
County to theft by receiving stolen property. Nothing in the record
shows that the State provided defense counsel with any information
about these convictions. In denying Thomas’s motion for a new trial,
the trial court found that “no Brady violation existed” because “the
information was accessible to trial counsel.”
(a) The State’s failure to disclose Emmett’s and Zeigler’s felony
convictions.
“[U]nder Brady and Giglio, the State violates due process when
it suppresses evidence that materially undermines witness
credibility[.]” Southall v. State, 300 Ga. 462, 469-470 (3) (796 SE2d
261) (2017) (citations omitted). To prevail on such a claim, Thomas
was required to show that
(1) the State possessed evidence favorable to his defense;
(2) he did not possess the favorable evidence and could not
obtain it himself with any reasonable diligence; (3) the
State suppressed the favorable evidence; and (4) had the
evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the trial would have
been different.
Bryant v. State, 298 Ga. 703, 705 (2) (784 SE2d 412) (2016) (citation
12
and punctuation omitted). Because OCGA § 35-3-34 (a) (2) “makes
the criminal history records of witnesses in a criminal case available
to the defendant upon written request,” we have “held many times
that Brady does not require the prosecution to turn over to the
defense criminal records of [S]tate’s witnesses.” Jackson v. State,
306 Ga. 69, 89 (6) (d) (829 SE2d 142) (2019) (citation and
punctuation omitted). Accordingly, there was no Brady-Giglio
violation because with reasonable diligence defense counsel could
have obtained information about Emmett’s and Zeigler’s felony
convictions. See Jackson, 306 Ga. at 89 (6) (d).
(b) Counsel’s failure to investigate the witnesses’ criminal
histories.
Thomas contends that his trial counsel performed deficiently
by failing to investigate Emmett’s and Zeigler’s criminal histories,
which he argues would have required minimal effort. Thomas
argues that he was harmed by counsel’s failure to investigate
because counsel was not prepared to impeach Emmett and Zeigler
with their felony convictions. Specifically, Thomas argues that, if the
13
jury had not credited Emmett’s pretrial statement identifying
Thomas as the shooter in the 2013 shooting, Wilson’s testimony in
that case would have lacked corroboration, as required under
Georgia law because Wilson was an accomplice. See OCGA § 24-14-
8. And Thomas argues that, if the jury had not credited Zeigler’s
pretrial statements, then the State would have had no evidence at
all identifying Thomas as the shooter in the 2014 shooting.
To establish ineffective assistance of counsel,
a defendant must show that his trial counsel’s
performance was professionally deficient and that, but for
such deficient performance, there is a reasonable
probability that the result of the trial would have been
different. See Strickland v. Washington, 466 U. S. 668,
695 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). If [the
defendant] fails to show either deficiency or prejudice,
this Court need not examine the other prong of the
Strickland test.
Hill v. State, 310 Ga. 180, 187 (3) (b) (850 SE2d 110) (2020) (citations
and punctuation omitted). “To satisfy the deficiency prong [of the
Strickland test], [Thomas] must show that his attorney performed
at trial in an objectively unreasonable way considering all the
circumstances and in light of prevailing professional norms.” Lofton
14
v. State, 309 Ga. 349, 360 (6) (846 SE2d 57) (2020) (citation omitted).
In this case, the jury heard evidence that Emmett and Zeigler
had criminal charges pending. Specifically, defense counsel cross-
examined a detective on the fact that Emmett had a pending
burglary charge against him at the time he was interviewed by
investigators. And counsel cross-examined another detective about
Zeigler being in jail charged with aggravated assault with a
handgun at the time of his interview. In addition, the jury had other
reasons to question both witnesses’ credibility. At trial, Emmett
refused to answer any of the State’s questions. Zeigler’s testimony
that he was not shown a line-up was refuted by a detective’s
testimony, the line-up and accompanying form marked with
Zeigler’s identification of Thomas, and an audio recording of Zeigler
viewing the line-up, identifying Thomas, and being instructed to fill
out the form. And Zeigler’s possible bias was revealed in his
testimony that he had only identified Thomas because investigators
insisted that he name Thomas, which he did so they would help him
get bond on his pending aggravated assault charge. Defense counsel
15
argued to the jury that Emmett’s and Zeigler’s identifications of
Thomas should not be believed for these and other reasons. Under
the circumstances, even assuming (without deciding)
constitutionally deficient performance, Thomas has not shown a
reasonable probability that the result of the trial would have been
different if counsel had been in a position to also argue that Emmett
was not credible based on his conviction for theft by receiving stolen
property and burglary and that Zeigler was not credible based on his
conviction for theft by receiving stolen property. See Clark v. State,
309 Ga. 566, 572-573 (2) (847 SE2d 160) (2020); Clark v. State, 307
Ga. 537, 542 (2) (a) (837 SE2d 265) (2019); Boothe v. State, 293 Ga.
285, 295 (4) (745 SE2d 594) (2013).
2. Thomas contends that he received ineffective assistance of
counsel based on his counsel’s failure to request a jury instruction
on impeachment with evidence of prior convictions after the
testimony of Wilson, who had previously pleaded guilty to voluntary
manslaughter in connection with the shooting death of Boyer. He
argues that his counsel’s reason for not requesting the jury
16
instruction was not objectively reasonable. In a related argument,
Thomas contends that the trial court plainly erred in failing sua
sponte to instruct the jury on impeachment by a prior conviction.
Thomas contends that he was harmed by these failures because,
without an instruction, the jury was not equipped to evaluate
Wilson’s credibility.
(a) Counsel’s failure to request a jury instruction on
impeachment by a prior conviction.
At the hearing on Thomas’s motion for a new trial, his trial
counsel testified that, although a jury instruction on impeachment
by prior conviction was warranted by Wilson’s testimony, he did not
request the instruction as a matter of trial strategy. Counsel
testified that, in his estimation, this jury instruction would not “add
any value” to the general impeachment instructions 3 because the
jury knew Wilson had made a deal with the State to plead guilty to
voluntary manslaughter and avoid a life sentence. The trial court
3 The trial court instructed the jury about impeachment with evidence
disproving the facts testified to by the witness, with prior inconsistent
statements, and with evidence of the witness’s possible motive in testifying,
including plea agreements and similar matters.
17
determined that counsel’s strategy was sound because he had
reasons not to discredit Wilson too broadly. We agree. Although in
his pretrial statement, Wilson identified Thomas as one of the
shooters, at trial he testified that Thomas was not in the vehicle
during the drive-by shooting and was innocent of the crimes. Wilson
even gave the defense an innocent explanation for the presence of
Thomas’s fingerprints in the vehicle Wilson stole mere hours before
the shooting, by testifying that he gave Thomas a ride after stealing
the vehicle but before he, Cosby-Hendon, and others went looking
for members of Blocc to kill.
“[D]ecisions 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.” Gardner v. State, 310 Ga. 515, 518 (2) (852 SE2d 574)
(2020) (citations and punctuation omitted). In particular, the
decision about “which jury charges to request [is a] classic matter[ ]
of trial strategy[.]” Id. (citations and punctuation omitted). It was
consistent with an objectively reasonable defense strategy to attack
18
Wilson’s credibility only to the extent of his inculpatory pretrial
statement, on the basis that he obtained a plea agreement that
avoided a life sentence by telling investigators what they wanted to
hear. It was objectively reasonable not to have the jury instructed
that Wilson’s felony conviction could be considered as evidence of
impeachment, given that his trial testimony was favorable to
Thomas. Because Thomas has not shown that his counsel’s
performance was constitutionally deficient, as required by
Strickland, the trial court did not err in denying Thomas’s motion
for a new trial on this ineffective assistance of counsel ground. See
id.; Walker v. State, 296 Ga. 161, 171 (3) (b) (766 SE2d 28) (2014).
(b) The trial court’s failure to give sua sponte a jury instruction
on impeachment by a prior conviction.
As with his related ineffective assistance of counsel claim,
Thomas contends that the evidence of Wilson’s voluntary
manslaughter plea warranted a jury instruction on impeachment by
a prior conviction and that, without an instruction, the jury was not
equipped to evaluate Wilson’s credibility. Thomas argues that the
19
trial court was required to give the instruction even absent a request
and that the failure to do so was plain error.
To show plain error, the appellant must demonstrate that
the instructional error was not affirmatively waived, was
obvious beyond reasonable dispute, likely affected the
outcome of the proceedings, and seriously affected the
fairness, integrity, or public reputation of judicial
proceedings. Satisfying all four prongs of this standard is
difficult, as it should be.
Clarke v. State, 308 Ga. 630, 637 (5) (842 SE2d 863) (2020) (citation
and punctuation omitted).
An appellate court can conclude that a defendant waived his
right to a particular instruction “if the appellate court can discern a
tactical reason on the part of the defense for failing to request (or
object to, as the case may be) a specific jury instruction.” Vasquez v.
State, 306 Ga. 216, 230 (2) (c) (830 SE2d 143) (2019) (citation and
punctuation omitted). As discussed above, the record reflects that
Thomas’s counsel elected not to request a jury instruction regarding
impeachment by proof of a felony conviction as part of a conscious
defense strategy to cast doubt on Wilson’s pretrial inculpatory
statement without casting doubt on his helpful trial testimony.
20
Thus, we conclude that Wilson intentionally relinquished any
request for this impeachment instruction, and this claim of error
therefore fails at the first step of plain error review. See id.
3. Thomas contends that his trial counsel performed deficiently
by failing to make a timely motion to sever counts and to object to
certain testimony.
(a) Failure to make a timely motion to sever counts.
Thomas contends that his counsel performed deficiently by
failing to file a timely motion to sever the trial based on the two
separate incidents and that the trial court would have granted a
timely motion to sever. 4 Thomas also contends that his counsel
performed deficiently by failing, when the trial court took up the
motion to sever that counsel filed on the morning the trial began, to
argue that the State’s evidence would show that the 2013 shooting
related to an issue between Blocc and Duct Tape Boyz and that the
4Thomas’s counsel filed a motion to sever on the morning the trial began,
nearly two years after the date of arraignment. See OCGA § 17-7-110 (All
pretrial motions “shall be filed within ten days after the date of arraignment,
unless the time for filing is extended by the court.”).
21
2014 shooting did not involve the same gang rivalry but instead
involved Blocc and Fenesco City.
Where offenses are joined in a single indictment, a
defendant has a right to severance where the offenses are
joined solely on the ground that they are of the same or
similar character because of the great risk of prejudice
from a joint disposition of unrelated charges. However,
where the joinder is based upon the same conduct or on a
series of acts connected together or constituting parts of a
single scheme or plan, severance lies within the sound
discretion of the trial judge since the facts in each case are
likely to be unique. If severance is not mandatory, it is
nevertheless incumbent upon the trial court to determine
whether severance was necessary to achieve a fair
determination of [the defendant’s] guilt or innocence as to
each offense. To make that determination, the court
should consider whether in view of the number of offenses
charged and the complexity of the evidence to be offered,
the trier of fact will be able to distinguish the evidence
and apply the law intelligently as to each offense.
Carson v. State, 308 Ga. 761, 764-765 (2) (a) (843 SE2d 421) (2020)
(citations and punctuation omitted).
Although the trial court denied Thomas’s motion to sever in
part on the basis that it was untimely, the court reached the merits
of the motion as well. The trial court’s explanation of its ruling at
the hearing shows that the court considered the factual bases and
22
legal arguments advanced by Thomas’s counsel, and the court found
that severance was not necessary to achieve a fair determination of
Thomas’s guilt or innocence as to each offense. In particular, the
trial court considered the number and complexity of the offenses
charged and determined that a trier of fact could parse the evidence
and apply the law intelligently with regard to each charge. Thus, the
record does not support Thomas’s contention that the trial court
would have granted the motion to sever if it had been timely filed,
and he cannot show that he was prejudiced by counsel’s tardiness.
In criticizing the substance of counsel’s argument at the
hearing on the motion to sever, Thomas argues that the evidence at
trial showed that the two incidents did not involve the same gang
rivalry, as the State contended. Specifically, Thomas argues that
Zeigler testified at trial that the 2014 shooting arose out of a conflict
between Blocc members and Fenesco City members; Zeigler, himself
a member of Blocc, testified that Fenesco City and DTB were not the
same group; and Wilson also testified that Fenesco City and DTB
were separate groups. During the pretrial hearing on Thomas’s
23
motion to sever, however, Fenesco City was never mentioned, and
neither the State nor the defense mentioned Fenesco City in their
opening statements. In fact the first reference to Fenesco City was
by Zeigler on the third day of the trial.
“In evaluating the reasonableness of trial strategy, every effort
should be made to eliminate the distorting effects of hindsight.”
Griffin v. State, 309 Ga. 860, 867 (3) (849 SE2d 191) (2020) (citation
and punctuation omitted). “[T]rial counsel’s performance is judged
according to an objective standard of reasonableness, considering all
the circumstances from counsel’s perspective at the time of the
challenged conduct, and in the light of prevailing professional
norms.” Crouch v. State, 305 Ga. 391, 400 (3) (825 SE2d 199) (2019)
(citations and punctuation omitted). Considering all the
circumstances from counsel’s perspective at the time he moved to
sever the trial of the two shootings, Thomas has not shown how his
defense counsel could have anticipated that there would be evidence
that a group other than DTB had a conflict with any Blocc members
so that his counsel could have made the argument before trial that
24
the two shootings did not arise out of the same gang rivalry. Indeed,
the gang expert testified that Fenesco City is a subset of DTB.
Consequently, Thomas has not carried his burden under Strickland
of showing that his counsel’s representation was deficient in this
respect. See id.; Lee v. State, 280 Ga. 521, 522 (2) (c) (630 SE2d 380)
(2006).
(b) Failure to object to hearsay.
Thomas contends that his counsel performed deficiently by
failing to object to Zeigler’s testimony about the phone calls Wheeler
received at the mall, including that Umba told Wheeler that “Tony”
was on his way to the mall. Thomas also contends that his counsel
should have objected to Wilson’s recorded interview, in which he
recounted what someone named “LJ” had told him about the second
shooting, specifically that Thomas shot Zeigler, Wheeler, and a third
person and that Splash was involved. Thomas contends he was
prejudiced by the admission of the hearsay because it reinforced the
hearsay from Zeigler that Umba, Splash, and Thomas were involved
in the dispute at the mall that led to the second shooting.
25
Thomas does not challenge Zeigler’s pretrial statements to the
detectives and to Wheeler’s sister that he saw Thomas shooting at
him, Wheeler, and Dennis while they were in the back of Johnson’s
car, which were admissible as prior inconsistent statements after
Zeigler testified that he ducked and did not see the shooters. See
Bridgewater v. State, 309 Ga. 882, 886-887 (2) (848 SE2d 865)
(2020). Even if trial counsel was deficient for failing to object to the
admission of additional evidence about the mall incident, which was
circumstantial evidence that Thomas was involved in the shooting,
Thomas was not prejudiced as a result, because of the strength of
the direct evidence that he was one of the shooters. See Shaw v.
State, 307 Ga. 233, 251 (6) (a) (835 SE2d 279) (2019); Bryant v. State,
306 Ga. 687, 696 (2) (b) (832 SE2d 826) (2019).
(c) Failure to object to an expert witness’s testimony as being
speculative.
Thomas contends that his counsel performed deficiently by
failing to object to the State’s gang expert’s opinion testimony that
Thomas was the author of a Twitter post and what was meant by
26
the statements in the post. Specifically, Thomas argues that it was
deficient performance not to object to the gang expert’s testimony
that the following message contained in State’s Exhibit 116 was
posted by Thomas and referred to the death of Boyer: “Y’all sayin
fuk my boi peewee like daz. Gne. Brang yall boi bak.asum. all I can
do is send yall. Wit him. WAZZAM.” Thomas argues that a person
with no knowledge of the case could not infer anything about the
meaning of the Twitter post because there is no mention of Boyer at
all. Thomas contends that his counsel’s failure to object to the
testimony was harmful to him because it purported to provide some
evidence of Thomas’s guilt in the 2013 shooting, “a case that was
supported by weak evidence.”
The gang expert testified that he checked the
MoneyMakin_TONY Twitter page after learning that several
witnesses had reported that that was Thomas’s page. The gang
expert determined that the profile photo for the page was a photo of
Thomas. The content of multiple messages posted on the page
further supported the gang expert’s conclusion that it was Thomas’s
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page. State’s Exhibit 116 shows that the message quoted above was
posted on May 16, 2013, with the handle “tony_dtbym” on the
“MoneyMakin_TONY” page. The gang expert interpreted the first
part of the post as “Y’all saying f*ck my boy Peewee like that’s going
to bring your friend back or something,” and concluded that “like
that’s going to bring your friend back” meant that their friend was
dead. And the gang expert interpreted the second part as “all I can
do is send y’all with him” and concluded that was a threat to kill
anyone who planned to harm the poster’s friend, Peewee. The gang
expert put the post in the context of the poster’s handle (which
included “Tony” and “DTB”), the post’s timing (a few weeks after
Boyer’s death), and the post’s reference to Wilson (by his nickname
Peewee), who was involved in the shooting of Boyer, and concluded
that Thomas posted the message and that it referred to the death of
Boyer.
The post, as explained by the gang expert’s opinion testimony,
did not suggest that it was Thomas who shot Boyer or otherwise
implicate him in the 2013 shooting. Even assuming counsel should
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have objected to the testimony, Thomas has not shown that he was
prejudiced by the gang expert’s opinion testimony. See Haney v.
State, 305 Ga. 785, 790 (2) (827 SE2d 843) (2019).
(d) Lastly, we consider the cumulative effect of prejudice
resulting from any assumed deficiencies in counsel’s performance.
See Mitchell v. State, 308 Ga. 1, 9 (2) (f) (838 SE2d 820) (2020); see
also Schofield v. Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56)
(2012) (“[I]t is the prejudice arising from counsel’s errors that is
constitutionally relevant, not that each individual error by counsel
should be considered in a vacuum.” (citation and punctuation
omitted)). Here, the cumulative prejudice from any assumed
deficiencies discussed in Divisions 1 (b), 3 (b), and 3 (c) is insufficient
to show a reasonable probability that the results of the proceedings
would have been different in the absence of the alleged deficiencies.
See Mitchell, 308 Ga. at 9 (2) (f); Davis v. State, 306 Ga. 140, 150 (3)
(j) (829 SE2d 321) (2019). We therefore see no merit in Thomas’s
claims of ineffective assistance.
Judgment affirmed. All the Justices concur.
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