Thomas v. State , 298 Ga. 106 ( 2015 )

In the Supreme Court of Georgia
Decided: November 16, 2015
S15A0777. THOMAS v. THE STATE.
NAHMIAS, Justice.
Appellant Joseph Andrew Thomas was convicted of malice murder and
numerous other crimes in connection with four armed robberies and the shooting
death of Robert Stone. Appellant contends that the trial court erred by denying
his pro se motion to substitute trial counsel, and that his trial counsel provided
ineffective assistance by failing to obtain a ruling on her motion to withdraw as
counsel. As explained below, we reject these contentions, but we have
identified an error in the sentences imposed on Appellant. We therefore affirm
the trial court’s judgment in part and vacate it in part.1
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The crimes occurred between August 24 and September 12, 2009. On December 8, 2009,
Appellant and Jason Lee were indicted together in Richmond County. Lee was indicted only for
crimes occurring on September 12, 2009; on October 27, 2010, he pled guilty to those charges. On
May 24, 2011, Appellant was re-indicted alone for 28 crimes: one count of malice murder and one
count of felony murder; four counts of armed robbery and two counts of criminal attempt to commit
armed robbery; one count of hijacking a motor vehicle and one count of attempted hijacking; five
counts of aggravated assault with a deadly weapon; seven counts of possession of a firearm during
the commission of a crime; one count of theft by receiving stolen property; and five counts of
possession of a firearm by a convicted felon. The last five of these charges were later nolle prossed.
Appellant’s trial began on June 6, 2011. On June 10, the trial court granted a directed verdict of
acquittal on the theft by receiving count, and the jury found Appellant guilty of the remaining 22
1. Viewed in the light most favorable to the verdicts, the evidence at
trial showed the following.
Attempted Armed Robbery of Richard Howard and Gregory Smoot: On
August 24, 2009, Howard and Smoot were standing in the parking lot of a
business on Deans Bridge Road in Augusta when Appellant and another man
drove up in a Buick Skylark. Appellant got out of the car, took a handgun out
of the trunk, approached Howard and Smoot, and told them to give him their
money. When Howard refused, Appellant fired a shot at the two victims, which
missed, and Howard and Smoot ran to a nearby restaurant to call the police.
Within an hour, investigators located the Buick abandoned on the side of a road
less than a mile away. The car contained clothing matching the descriptions of
the robber that Howard and Smoot had given to the police; Appellant’s
fingerprints were found on the center console and exterior windows; and a
wallet containing his social security card was found on the ground nearby.
counts. The felony murder verdict was vacated as a matter of law, and the trial court sentenced
Appellant as a recidivist to serve four consecutive life sentences on the malice murder and three of
the armed robbery counts, plus an additional 255 consecutive years on the other counts. On June 15,
2011, Appellant filed a motion for new trial, which he amended with new counsel on October 4,
2013, and March 31, 2014. On May 19, 2014, after an evidentiary hearing, the trial court denied the
motion in part and granted it in part to address a sentencing issue regarding fines. Appellant filed
a timely notice of appeal, and the case was docketed in this Court for the April 2015 term and
submitted for decision on the briefs.
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Howard and Smoot later identified Appellant in a photo lineup. Based on these
facts, Appellant was found guilty of two counts each of attempt to commit
armed robbery, aggravated assault, and possession of a firearm during the
commission of a crime.
Armed Robbery and Carjacking of Michael Pettis: Two weeks later, on
September 7, 2009, Pettis drove Appellant, Jason Lee, and Brandon Ross home
from a nightclub in his Hummer. Around 3:00 a.m., Pettis pulled into
Appellant’s apartment complex on Killingsworth Road, and Lee and Ross got
out. Appellant, who remained seated behind Pettis, then pulled out a revolver
and pointed it at Pettis. Pettis jumped out of the Hummer and tried to run away,
but Appellant chased after him, shooting as they ran. Appellant caught Pettis
in a stairwell and marched him back to the Hummer at gunpoint. Appellant
went through Pettis’s pockets and took $20, while Lee and Ross watched from
the sidewalk. Pettis then punched Appellant and ran away again; Appellant
drove off in the Hummer. Pettis later identified Appellant in a photo lineup.
Based on these facts, Appellant was found guilty of armed robbery, aggravated
assault, hijacking a motor vehicle, and possession of a firearm during the
commission of a crime.
3
Armed Robbery and Attempted Carjacking of Hamilton Aigbogun: Three
days later, on the afternoon of September 10, 2009, Aigbogun, a cable company
service technician, was preparing to install cable at a residence on Second
Avenue. As he unloaded his tools from the company van, Appellant and another
man approached. Appellant pointed a revolver at Aigbogun and demanded his
wallet, personal cell phone, and company cell phone; Aigbogun complied.
Appellant demanded the keys to the van, but then several other people walked
past, talking to Appellant. In response, Appellant said “go about your business,”
and did not take the keys when Aigbogun offered them. Instead, Appellant and
the other man walked away. Aigbogun later identified Appellant in a photo
lineup. Based on these facts, Appellant was found guilty of armed robbery,
attempted hijacking of a motor vehicle, and possession of a firearm during the
commission of a crime.
Murder of Robert Lee Stone, Jr.: Around 9:30 p.m. on the same day,
Stone, who was a truck driver, stopped at a convenience store on Gordon
Highway to buy an ice cream sandwich. Shortly after he walked out of the store,
Stone was shot at repeatedly, and two shots hit him in the chest, killing him.
Two eyewitnesses described the shooter as a black man wearing a yellow shirt
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who ran away from the scene; they both later identified the shooter as the man
wearing a yellow shirt who was shown in a video from the store’s surveillance
camera peering into the store shortly before the shooting. Two other witnesses
saw Appellant wearing a yellow shirt when they spoke with him near the store
shortly before the shooting, and one of them identified Appellant as the man in
the video. Based on these facts, Appellant was found guilty of malice murder,
felony murder, and possession of a firearm during the commission of a crime.
Armed Robbery of Rodney Burns and Patrick Boatner: Two nights later,
on September 12, 2009, Burns and Boatner stopped at an ATM on Deans Bridge
Road to withdraw cash. As they were leaving, Appellant and Lee approached,
claiming that their car would not start and asking for a ride home. Burns and
Boatner agreed; all four men got into Boatner’s car; and Appellant directed
Burns, who was driving, to a neighborhood of vacant homes on Memory Drive.
When Burns stopped the car there, Lee, who was sitting behind Burns, held a
sawed-off shotgun to Burns’s head, and Appellant, who was seated behind
Boatner, held a handgun to Boatner’s head. They demanded money. Burns
handed Lee his cell phone, but when the victims denied having any money,
Appellant and Lee fired their guns, hitting Boatner in the chest and shoulder but
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missing Burns. Appellant, Lee, and Boatner got out of the car, while Burns
grabbed his own gun from under the car seat and began to shoot at the two
robbers. Boatner threw $4,700 on the ground and dove back into the car as
Burns sped away. They later identified Appellant and Lee in photo lineups.
Based on these facts, Appellant was found guilty of two counts each of armed
robbery, aggravated assault, and possession of a firearm during the commission
of a crime.
Appellant was arrested on September 15, 2009, driving the same Buick
Skylark that he had abandoned after the crimes on August 24 and possessing a
9mm pistol.
The Trial: At his trial in June 2011, Appellant testified that he had argued
with Pettis over a girl and struck him, but denied any knowledge of or
involvement in other crimes. Appellant also called five other witnesses
including Lee, his former co-indictee and alleged accomplice in the September
12 crimes. Lee testified that Appellant was not with him on the night of
September 12, and he described the events of that night as a drug deal gone
wrong between Burns, Boatner, and a man named Antonio Willis.
Appellant does not dispute the legal sufficiency of the evidence supporting
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his convictions. Nevertheless, as is this Court’s practice in murder cases, we
have reviewed the record and conclude that, when viewed in the light most
favorable to the verdict, the evidence presented at trial and summarized above
was sufficient to authorize a rational jury to find Appellant guilty beyond a
reasonable doubt of the crimes for which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega
v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury to
determine the credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.’” (citation omitted)).
2. As mentioned in footnote 1 above, Appellant and Jason Lee were
originally indicted together for the September 12 crimes, with Appellant charged
with the other crimes as well, and both men were represented by lawyers from
the Augusta Judicial Circuit’s Public Defender’s Office. On May 14, 2010,
Appellant’s trial counsel filed a motion to withdraw on the ground that a conflict
of interest could arise if the State called Lee to testify against Appellant. The
trial court never ruled on that motion. On October 27, 2010, Lee pled guilty to
robbery and aggravated assault and was sentenced to serve 13 concurrent years
for each crime. On May 3, 2011, Appellant filed a pro se motion to substitute
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his counsel on the ground of ineffective assistance. On May 24, Appellant was
re-indicted alone, and on June 6, the first day of his trial, the court denied
Appellant’s pro se motion.
(a) Appellant contends first that the trial court erred in denying
his pro se motion to substitute counsel, which, he now asserts, resulted in his
being represented at trial by a lawyer who had a conflict of interest because she
worked in the same public defender’s office as Lee’s lawyer. In support of this
contention, Appellant notes that this Court explained (two years after his trial)
that
if it is determined that a single public defender in the circuit public
defender’s office of a particular judicial circuit has an
impermissible conflict of interest concerning the representation of
co-defendants, then that conflict of interest is imputed to all of the
public defenders working in the circuit public defender office of
that particular judicial circuit.
In re Formal Advisory Opinion 10-1, 293 Ga. 397, 399 (744 SE2d 798) (2013)
(FAO 10-1).
Pretermitting whether Appellant’s pro se motion, filed while he was
represented by counsel, was even cognizable, see Tolbert v. Toole, 296 Ga. 357,
363 (767 SE2d 24) (2014), the motion did not allege any conflict of interest
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issue. Instead, the motion was based solely on allegations that his trial counsel
had provided ineffective assistance by failing to communicate with him and
refusing to follow his wishes. Appellant has abandoned those complaints on
appeal, and his motion did not raise and preserve for appeal the conflict of
interest claim he now asks us to decide. “‘It is a general principle that a party
cannot assert one ground in support of a plea, motion, or objection in the trial
court and then expect the appellate court to review an entirely new ground to
which he has switched on appeal.’” Coleman v. State, 163 Ga. App. 173, 175
(293 SE2d 395) (1982) (citation omitted). See also Hulett v. State, 296 Ga. 49,
58 (766 SE2d 1) (2014) (“[A]n appellant is ‘limited on appeal to the grounds
which he properly presented in the trial court.’” (citation omitted)).
Accordingly, this enumeration of error fails.
(b) Appellant also contends that his trial counsel rendered
ineffective assistance by failing to obtain a ruling on her motion to withdraw.
Unlike Appellant’s later pro se motion, trial counsel’s motion was based on a
possible conflict of interest due to the representation of Appellant’s then co-
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indictee by another lawyer in her office.2 To prevail on this claim, Appellant
must show that his lawyer’s performance was professionally deficient and that,
but for the deficiency, there is a reasonable probability that the outcome of his
trial would have been more favorable to him. See Strickland v. Washington,
466 U.S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984); Woodard v. State,
296 Ga. 803, 814-815 (771 SE2d 362) (2015).
Although at the time trial counsel filed her motion there was the potential
that the representation of Appellant and his co-indictee by lawyers from the
same public defender’s office would cause a conflict of interest, by the time
Appellant’s trial began, there was no conflict. The record shows that when trial
counsel filed her motion in May 2010, she presumed that the State would call
Lee to testify against Appellant at trial. Before the trial began in June 2011,
however, the situation changed significantly: Lee pled guilty and was sentenced;
Appellant was re-indicted alone; the prosecutor notified Appellant’s counsel that
the State would not call Lee at trial; and counsel decided that Appellant would
2
Trial counsel’s motion to withdraw cited a version of the State Bar Formal Advisory
Opinion Board’s proposed opinion addressing conflicts of interest within a public defender’s office
with regard to the representation of co-defendants. The version of that formal advisory opinion that
the Board finally promulgated was approved by this Court, with some limitation and clarification,
in 2013. See FAO 10-1, 293 Ga. at 397-398 & n.1.
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call Lee as a witness because Lee’s testimony would benefit his defense.
Appellant then called Lee as a defense witness, and Lee corroborated
Appellant’s testimony that he was not present for the crimes against Burns and
Boatner. Under these circumstances, had trial counsel pursued a ruling on her
motion to withdraw at trial, the court would have been entitled to deny the
motion for failure to establish that an impermissible conflict of interest existed
at that time. See FAO 10-1, 293 Ga. at 400 (explaining that the imputed conflict
rule “does not become relevant or applicable until after an impermissible
conflict of interest has been found to exist”). See also Burns v. State, 281 Ga.
338, 340 (638 SE2d 299) (2006) (“[C]ounsel from the same [public defender’s
office] are not automatically disqualified from representing multiple defendants
charged with offenses arising from the same conduct.”). Thus, Appellant has
failed to show that his trial counsel was ineffective. See Moore v. State, 293 Ga.
676, 679 (748 SE2d 419) (2013).
3. Although we reject Appellant’s enumerations of error, we have
identified an error regarding the failure to merge certain counts for sentencing.
See Hulett v. State, 296 Ga. 49, 54 (766 SE2d 1) (2014) (explaining that
appellate courts may consider merger errors sua sponte). The five aggravated
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assault with a deadly weapon counts involving victims Howard, Smoot, Pettis,
Burns, and Boatner (Counts 3, 4, 9, 19, and 22) should have been merged into
the armed robbery and attempted armed robbery convictions involving those
victims (Counts 1, 2, 8, 18, and 21). See Long v. State, 287 Ga. 886, 888-889
(700 SE2d 399) (2010); Garland v. State, 311 Ga. App. 7, 13 (714 SE2d 707)
(2011). Thus, Appellant’s convictions and sentences on all five of the
aggravated assault counts must be vacated.
Judgment affirmed in part and vacated in part. All the Justices concur.
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