Mosley v. State ( 2014 )

295 Ga. 123
FINAL COPY
S14A0589. MOSLEY v. THE STATE.
THOMPSON, Chief Justice.
Appellant Brandon Mosley appeals his convictions for malice murder and
other crimes relating to the shooting death of Angelo Larocca, contending only
that his trial counsel provided constitutionally ineffective assistance. We
affirm.1
1. Viewed in the light most favorable to the verdict, the evidence
1
The crimes occurred on June 28, 2011. On April 1, 2012, a Gwinnett
County grand jury indicted Mosley for malice murder, felony murder based on
armed robbery, felony murder based on aggravated assault, armed robbery,
aggravated assault, two counts of possession of a firearm during the commission
of a felony, and two counts of criminal gang activity. The latter two counts
were nolle prossed before trial, which began on December 3, 2012. On
December 10, the jury found appellant guilty on the remaining counts. On
January 17, 2013, the trial court sentenced appellant to life in prison without the
possibility of parole for both malice murder and armed robbery and to five
consecutive years in prison for one of the firearm offenses. The felony murder
verdicts were vacated by operation of law, and the trial court merged the
aggravated assault offense, as well as the second firearm offense. On January
18, 2013, trial counsel filed a motion for new trial, which new appellate counsel
amended on August 8, 2013. On August 23, 2013, the trial court denied the
motion for new trial, as amended, and appellant filed a timely notice of appeal.
The case was docketed in this Court for the January 2014 term and submitted for
decision on the briefs.
shows that shortly before 2:00 p.m. on June 28, 2011, Larocca and three friends
drove to an apartment complex where Larocca was planning to buy Xanax pills
from appellant and Hunter Davis. Once at the apartment complex, Larocca got
out of the car and walked behind an apartment building to meet appellant and
Davis. Unbeknownst to him, however, appellant and Davis were planning to
rob him. Larocca initially told appellant and Davis that he did not have any
money, but when they examined his wallet, they discovered that he did.
Appellant and Davis became upset, and appellant shot Larocca twice, once in
the chest and once in the abdomen. The chest wound was fatal.
After the shooting, appellant and Davis ran in separate directions.
Appellant went to a nearby carwash, where a friend of his, Tyrone Baldwin,
worked. Baldwin, however, had just left after finishing his shift. Appellant told
another employee that he was in trouble, and he asked that employee if he could
borrow his phone to call Baldwin. The employee let him do so and also asked
appellant what had happened, because he could hear police cars and helicopters.
Appellant told him that he had shot somebody. Baldwin returned in his car a
short time later; appellant got in the car; and they left. A video surveillance
camera at the carwash recorded appellant’s encounter with the employee, as well
2
as appellant leaving in Baldwin’s car.
Appellant told Baldwin that he had shot somebody, and he asked Baldwin
to pick up a friend of his who was nearby. Baldwin agreed to do so. The friend
was Davis, and when Davis got in the car, he asked appellant, “why did you do
that?” Appellant responded that he did not know. Baldwin dropped off
appellant and Davis at a location about a mile away.
Appellant then hid from authorities at his cousin’s house in a neighboring
county. While there, he told his cousin, as well as one of his cousin’s friends,
that he shot the victim because the victim initially lied to him about having any
money. In a pre-trial statement to the police, appellant first said that Davis shot
the victim after he lied about not having any money, but later said that he was
the one who shot the victim.
Viewing the evidence in the light most favorable to the verdict, we
conclude that it was sufficient to authorize a rational jury to find appellant guilty
beyond a reasonable doubt of the crimes of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).
2. In his only enumeration of error, appellant contends that he received
ineffective assistance of trial counsel.
3
To prevail on this claim, appellant must show that his counsel performed
deficiently and that, but for the deficiency, there is a reasonable probability that
the outcome of the 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).
“This burden, although not impossible to carry, is a heavy one.” Young v.
State, 292 Ga. 443, 445 (738 SE2d 575) (2013). Moreover,
a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant
as a result of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel’s performance. If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that course
should be followed.
Strickland, 466 U.S. at 697.
Appellant contends that the trial court erred in ruling that trial counsel did
not provide ineffective assistance by failing to object when, during closing
argument, the prosecutor said:
Mr. Crosby [defense counsel] told you that when you go back in the
jury room, you should not sympathize, you should basically be
robots and look at the evidence robotically. That’s not the law.
That’s not the law. You aren’t going to be charged to that. How
can you not sympathize with a mother who lost her own child?
How can you not sympathize for a young man who has a pistol in
his face, begging for his life?
4
Appellant contends that this was an improper “golden rule” argument to which
trial counsel should have objected. See Ellington v. State, 292 Ga. 109, 142-143
(735 SE2d 736) (2012) (a “golden rule” argument is one that urges “the jurors
to imagine themselves in the place of the victims during the murders and thus
improperly evok[es] the jury’s passion, sympathy, and personal identification
with the victims”). However, even assuming trial counsel performed deficiently
by not objecting to this argument, we find no Strickland prejudice in light of the
strength of the evidence of appellant’s guilt and of the trial court’s charge to the
jury that it was to base its verdict on the evidence and the law given in the
court’s charge and not on “favor, affection, or sympathy to either party.” See
Rice v. State, 292 Ga. 191, 210-211 (733 SE2d 755) (2012) (holding that, even
assuming that trial counsel performed deficiently by failing to object to an
improper “golden rule” argument, the defendant’s ineffective assistance claim
failed because there was no prejudice due, in part, to the overwhelming evidence
of his guilt).
Judgment affirmed. All the Justices concur.
5
Decided April 22, 2014.
Murder. Gwinnett Superior Court. Before Judge W. Davis.
Michael S. Marr, for appellant.
Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District
Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,
Benjamin H. Pierman, Assistant Attorney General, for appellee.
6