Moss v. State ( 2021 )

In the Supreme Court of Georgia
Decided: August 10, 2021
S21A0623. MOSS v. THE STATE.
BETHEL, Justice.
Lenny Ozzylee Moss was found guilty of the malice murder of
Tyisha Davis and other offenses at a bench trial before the McDuffie
County Superior Court. Following the denial of his motion for new
trial, Moss appeals, arguing that we should reverse his murder
conviction because his trial counsel had a conflict of interest which
prevented her from vigorously cross-examining a State witness she
had previously represented in an unrelated criminal matter. We
affirm. 1
1 The crimes occurred on December 20, 2016. On June 13, 2017, a
McDuffie County grand jury returned a nine-count indictment against Moss,
charging him with the malice murder of Davis (Count 1); the felony murder of
Davis (Count 2); the aggravated assaults of Davis, C. I. (a minor), T. M. (a
minor), Jacorbin Ivey, and O. W. (a minor) (Counts 3 to 7); cruelty to children
in the first degree against L. M., A. M., J. M., and M. M. (minors) (Count 8);
1. The evidence presented at trial showed the following. Moss
and Davis were married and had four children together — L. M., A.
M., J. M., and M. M. — who ranged in age from one year old to six
years old at the time of the crimes. The relationship between Moss
and Davis was marred by several incidents involving physical
violence. As a result, Moss and Davis separated in the fall of 2016,
and Davis lived for a time at her grandmother’s house with the
children.
In December 2016, Davis moved with her children back to the
house she previously shared with Moss and changed the locks. In
and three counts of possession of a firearm during the commission of a felony
(Counts 9 to 11). Following a hearing on March 14, 2018, Moss waived his right
to a jury trial. At a bench trial held from May 15 to 17, 2018, the trial court
found Moss guilty of all counts. On May 18, 2018, the trial court sentenced
Moss to life in prison without the possibility of parole on Count 1, terms of 20
years in prison each on Counts 4 to 8, to be served consecutively to Count 1 but
concurrently with each other, and terms of 5 years in prison each on Counts 9
to 11, to be served consecutively to Count 8 and to each other. Counts 2 and 3
were vacated by operation of law or merged for sentencing. On June 14, 2018,
Moss filed a motion for new trial, which he amended through new counsel on
February 12, 2020. Following a series of hearings, the trial court denied the
motion, as amended, on November 4, 2020. Moss filed a notice of appeal on
December 2, 2020. His case was docketed to this Court’s April 2021 Term and
orally argued on April 22, 2021.
2
the days just before Davis and the children moved back to the house,
Moss was staying overnight elsewhere but had been coming to the
house periodically to pick up clothing and shower. Jacorbin Ivey and
C. I., Davis’s brother and sister, came to stay with Davis. 2 Davis told
Ivey that Moss had threatened to kill her, and Ivey testified that he
was staying with Davis “for her protection.”
On the evening of December 20, 2016, Davis, Ivey, C. I., and
Davis’s children were at the house. Davis’s cousin, O. W., and Ivey’s
friend, T. M., were also visiting the house that evening. 3 T. M. was
in the kitchen with Davis and C. I. as they were preparing dinner.
At some point that evening, Moss sent Davis a text message
that said, “If I can’t have you, nobody else can.” Davis replied that
she did not want to be with him and that he should stop texting her;
she then blocked his number. 4 A few minutes later, Moss knocked
2 C. I. was 14 years old when she testified at Moss’s trial, which occurred
roughly a year and a half after Davis was killed.
3 T. M. and O. W. were 18 and 15 years old, respectively, at the time of
Moss’s trial.
4 O. W. saw this text exchange on Davis’s phone and testified about it.
Efforts by investigators to retrieve the contents of Davis’s phone were
3
on the front door, and one of his children let him in. Moss came in
the house, pointed his gun at T. M., and said, “Why you in my
house?” T. M. ran into the back bedroom and hid in a closet with
Ivey. Moss walked down the hallway with his gun and pointed it at
O. W.
Moss then went into the kitchen to confront Davis. C. I. began
to run out of the house, and Davis told Moss to put the gun down.
Moss then shot Davis in the chest, knocking her to the ground. C. I.
ran out the front door and to a neighbor’s house where she called
911. The children, who were in the living room, tried to run out of
the house to C. I., but Moss “grabbed them” and “put [them] back in
the house.”
After hearing gunshots, O. W. also called 911. Moss then went
outside, walked around the house to the back bedroom window, and
fired several shots through the window and into the room where Ivey
and T. M. were still hiding. Moss then fled.
unsuccessful because the phone’s ports had been damaged. Moss’s cell phone
was recovered when he was arrested, but no messages dated before December
21, 2016, were found on the phone.
4
Several police officers arrived in response to the 911 calls. One
officer went inside the house, where he found the children in the
living room sitting on the couch and crying. One of the children said,
“He shot my mama, he shot my mama.” The officer removed the
children from the house and took them to the neighbor’s house
across the street.
The officer then found Davis’s body in the kitchen. She was
wearing only a t-shirt and socks. By the time the officer reached her,
she had no pulse, and efforts to revive her were unsuccessful. The
medical examiner testified that Davis suffered gunshot wounds to
her chest and right groin. The shot fired at Davis’s chest appeared
to have been fired from less than a foot away and was fatal. The
gunshot wound to her groin appeared to have been inflicted as she
lay on the kitchen floor.
Moss testified in his own defense at trial as follows. Davis had
once told him that another man was the father of M. M. Moss had
never met T. M. prior to the night of the shooting, but he claimed
that, before the shooting, he saw a video on Facebook in which T. M.
5
was in the house with Moss’s children and referred to them as his
“stepkids.” Moss also claimed that he saw text messages sent
between Davis and T. M. (and between Davis and several other
men). 5
As to Davis’s shooting, Moss learned on December 20 that
Davis and the children had moved back into the house. Earlier in
the day, Davis asked him to buy several items from the store and
bring them to the house. Moss came to the house that night and saw
Davis through the kitchen window as Moss was pushing a trash can
to the street. He also saw T. M., whom he did not recognize at the
time, sitting at the kitchen table. Davis was wearing only a t-shirt
and socks. T. M. then approached Davis and began kissing her,
grabbing her breasts, and reaching under her shirt. Moss “got a raise
of energy,” finished pushing the trash can to the street, came around
the house, and knocked on the front door. After one of the children
let him in, Moss saw T. M. and was “spooked.” He approached T. M.
5 Moss admitted on cross-examination that he had no physical evidence
that these messages existed.
6
and said, “Who are you? What are you doing in my house?” Moss
then “blacked out,” “lost it,” and began firing his gun.
Moss testified that he had no intention of harming anyone
when he went to the house that night. He felt “rage” when he saw T.
M. touching Davis, and he recalled chasing T. M. down the hallway
to the bedroom and firing into the bedroom. He did not realize that
Davis had been shot until he came back up the hallway. He then
grabbed several items from the house and ran away. He later
admitted firing four shots into the bedroom from outside after he left
the house. He stated that this was the first time he had ever caught
another man “in the house with [Davis] while she’s ninety percent
naked.”
Moss also called his sister, Lukenya Moss-Jones, to testify. She
testified that she saw text messages sent between Davis and T. M.
in October 2016 that suggested to her that the two of them had a
relationship. Moss-Jones testified that she told Moss about the text
messages. She testified that Moss had been suspicious “for years”
that Davis had been unfaithful to him throughout their relationship
7
and that another man was the father of one of the children.
Regarding Moss’s assertion that he and Davis were in a
relationship, T. M. testified that he knew Davis only through Ivey
and that he and Davis did not have a relationship and had not met
before the day of the shooting.6 Ivey testified that Davis and T. M.
“didn’t have nothing going on, nothing, nothing whatsoever.”
Finally, C. I. testified that Davis and T. M. were friends, that she
did not see him touch Davis, and that there was no “intimate
contact” between them.
2. In his sole enumeration of error, Moss argues that his right
to the effective assistance of counsel under the United States
Constitution and the Georgia Constitution was violated. See U.S.
6 Moss and T. M. are cousins, but T. M. testified that they did not know
each other well. During his direct examination, T. M. admitted that he had
since been convicted of voluntary manslaughter and was serving a term of 20
years in prison. He was otherwise largely uncooperative with the prosecutor
and stated repeatedly that he could not remember that evening’s events,
including whether he had given a statement to the police. The trial court
eventually permitted the prosecutor to treat T. M. as a hostile witness. During
cross-examination, T. M. stated several times that he did not remember certain
events from the evening. Through the testimony of a police officer, the trial
court admitted statements that T. M. gave to the police on the night of the
shooting about the incident. In those statements, T. M. admitted being in the
kitchen that night before the shooting.
8
Const. amend. VI; Ga. Const. of 1983, Art. I, Sec. I, Par. XIV. Moss
argues, as he did before the trial court, that his trial counsel’s
previous representation of T. M. in an unrelated criminal matter
created an actual conflict of interest that hindered counsel from
vigorously cross-examining T. M. at trial. Moss argues that a more
thorough cross-examination of T. M., specifically with respect to
whether T. M. had any physical or romantic relationship with Davis
or made any intimate contact with her on the night of the shooting,
was critical to Moss’s defense strategy of being found guilty of
voluntary manslaughter rather than malice murder. We disagree
that Moss has shown an actual conflict of interest on the part of his
trial counsel.
(a) The Sixth Amendment to the United States Constitution
guarantees that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.”
Similarly, the Georgia Constitution of 1983 provides that “[e]very
person charged with an offense against the laws of this state shall
have the privilege and benefit of counsel.” Ga. Const. of 1983, Art. I,
9
Sec. I, Par. XIV. “It is well established that the right to counsel
protected by the Sixth Amendment and the Georgia Constitution is
the right to the effective assistance of counsel.” Edwards v. Lewis,
283 Ga. 345, 348 (2) (658 SE2d 116) (2008).
“One component of the right to the effective assistance of
counsel is the right to representation that is free of actual conflicts
of interests.” Id. at 348 (2); see also Cuyler v. Sullivan, 446 U. S. 335,
350 (100 SCt 1708, 64 LE2d 333) (1980). An actual conflict, for
purposes of the right to counsel, “is a conflict of interest that
adversely affects counsel’s performance, not just a mere theoretical
division of loyalties.” (Citation and punctuation omitted.) Williams
v. State, 302 Ga. 404, 408 (3) (807 SE2d 418) (2017). If the defendant
shows that his trial counsel had an actual conflict of interest, he
need not show that the outcome of the proceedings would have been
different to receive a new trial. See Holloway v. Arkansas, 435 U. S.
475, 487-491 (II) (98 SCt 1173, 55 LE2d 426) (1978). Instead,
prejudice is presumed if the defendant “demonstrate[s] that the
conflict of interest existed and that it significantly affected counsel’s
10
performance.” (Footnote and punctuation omitted.) Edwards, 283
Ga. at 349 (2).7
In cases where an alleged conflict of interest is based upon
defense counsel’s prior representation of a prosecution
witness, [courts] must examine the particular
circumstances of the representations to determine
whether counsel’s undivided loyalties remain with his or
her current client, as they must. In this regard, . . . the
factors that arguably may interfere with effective cross-
examination include: (1) concern that the lawyer’s
pecuniary interest in possible future business may cause
him or her to avoid vigorous cross-examination which
might be embarrassing or offensive to the witness; and (2)
the possibility that privileged information obtained from
the witness in the earlier representation might be
relevant to cross-examination. Another factor that should
be considered in determining whether an actual or
potential conflict of interest rendered trial counsel
ineffective, is whether the subject matter of the first
representation is substantially related to that of the
second.
(Citation and punctuation omitted.) Moon v. State, 288 Ga. 508, 514-
7 The question of whether counsel’s representation of the defendant was
affected is different from the question of whether the outcome of the trial was
affected, which is at issue in most ineffective assistance of counsel cases. See
Strickland v. Washington, 466 U. S. 668, 684 (I) (D) (104 SCt 2052, 80 LE2d
674) (1984); see also Edwards, 283 Ga. at 351 (2) (“[T]he critical question is
whether the conflict significantly affected the representation, not whether it
affected the outcome of the underlying proceedings.” (emphasis in original)).
Moss has not raised a claim of ineffective assistance of counsel under
Strickland in this appeal.
11
515 (8) (705 SE2d 649) (2011). In reviewing the decision of the trial
court on a conflict-of-interest claim,
we owe no deference to its application of the law to the
facts of this case. We owe substantial deference, however,
to the way in which the trial court assessed the credibility
of witnesses and found the relevant facts. To that end, we
must accept the factual findings of the trial court unless
they are clearly erroneous, and we must view the
evidentiary record in the light most favorable to the
findings and judgment of the trial court.
(Citations omitted.) Tolbert v. State, 298 Ga. 147, 151 (2) (a) (780
SE2d 298) (2015).
As discussed below, we agree with the trial court’s
determination that Moss has failed to show that his trial counsel
had an actual conflict of interest that significantly and adversely
affected her representation of Moss. Thus, Moss’s claim of ineffective
assistance of counsel on this basis fails.
(b) At the hearing on Moss’s motion for new trial, his trial
counsel testified that the defense strategy was to show that Moss
shot Davis “in the heat of passion” and that because he appeared to
have no complete defense to murder available, the goal of the trial
12
was to avoid a murder conviction even if that meant Moss would be
convicted of voluntary manslaughter. Trial counsel indicated that it
was important to corroborate Moss’s testimony about seeing T. M.
with Davis just before the shooting and to establish that T. M. and
Davis had a relationship leading up to the shooting. Counsel
testified that her goal was to show that whatever Moss saw or heard
just before the shooting was sufficient to “provoke him into a rage
that caused him to act as he did.”
At the hearing, trial counsel recalled that T. M. testified on
direct examination that he did not have any relationship with Davis.
Trial counsel also conceded on cross-examination that “it was going
to be a difficult road or battle” regardless of T. M.’s trial testimony.
She acknowledged that Moss’s account of the crimes, including his
testimony about moving a trash can to the street, chasing others in
the house down a hallway, and later firing shots into the house from
the yard, made the defense strategy “more difficult.”
The record also shows that trial counsel had previously
represented T. M. in an unrelated murder case. She began
13
representing him on July 14, 2015. Counsel testified that, due to T.
M.’s lack of cooperation in preparing his defense, she did not have
“any meaningful contact” with T. M. after August 21, 2015.
According to counsel, T. M. was no longer communicating with her
after that date, and her relationship with T. M. was “for all intents
and purposes . . . pretty much over” by that time, although she did
not formally withdraw from representing him until October 24,
2017. She began representing Moss on July 17, 2017.8Thus, the
period in which she was serving as counsel for both T. M. and Moss
in their separate cases overlapped by a few months. 9
Counsel testified that, at the time she represented T. M., she
was not aware that he was connected to Moss’s case. Counsel
8 Moss was initially represented by a public defender.
9 Moss’s trial counsel began practicing law in 1983 and focused primarily
on criminal and domestic-relations cases, including four years of service as a
public defender. She testified that she generally practiced in small rural
counties and that it was common for her to try cases in which she had
previously represented a State witness. Counsel testified that because of this
experience she was “keen and aware” of possible conflicts in the representation
and that she “kept an eye out” for such conflicts. Counsel later reiterated that
this situation, in which a former client was a witness for the State, “was . . .
something [she] had dealt with before.”
14
testified that she only became aware that T. M. had been a witness
to Davis’s shooting in January 2018, when she received discovery
from the State listing T. M. as a witness. This was several months
after her representation of T. M. ended and roughly two and a half
years since her last contact with him.
T. M. was serving a 20-year prison sentence at the time, 10 and
in the months leading up to Moss’s trial, counsel did not try to
interview T. M. She saw T. M. at the jail on one occasion when she
was there to visit Moss. In a brief conversation, counsel and T. M.
mostly discussed T. M.’s case and a case involving his father.
Counsel asked T. M. if he knew Moss. T. M. told her that Moss was
his cousin but did not tell her anything about Davis’s shooting.
Counsel testified that, before trial, she met with Moss five or
six times. Moss told counsel about the shooting and that he believed
Davis was having an affair with the man he saw in the kitchen that
10 After trial counsel withdrew from representing T. M., new counsel was
appointed for him. T. M. later went to trial on his murder charge. He was found
guilty of voluntary manslaughter and sentenced to 20 years in prison, which
he was serving at the time of Moss’s trial.
15
night, based at least in part on a video he had previously seen on
Facebook of the man talking about Davis’s children. Moss told her
that in the video the man referred to Davis’s children as his
“stepkids.” However, counsel indicated that she was never able to
obtain the video to which Moss referred. At the time, neither Moss
nor counsel knew that the man Moss claimed to have seen was T. M.
Counsel testified that because T. M. was four or five years younger
than Davis and only 15 years old when counsel began representing
him, she did not think, given his young age, he “would have been
having an affair with anybody, especially knowing what his
circumstances were” at the time of Davis’s shooting, namely, that he
was out of jail on bond and awaiting trial on a murder charge.
However, counsel testified that, in light of the defense strategy
she planned for Moss, once she determined that T. M. was in the
house when Moss shot Davis, she wanted to find some evidence to
corroborate Moss’s allegation that T. M. had a relationship with
Davis. Counsel was unable to do so but expressed her view that a
video or similar evidence that T. M. and Davis were in a relationship
16
“wouldn’t have been Earth-shattering news one way or another.”
Counsel testified that she attempted to cross-examine T. M. at
trial but that he was uncooperative. Counsel denied that she was
worried that a “heavy” cross-examination of T. M. would cost her
further referrals in criminal cases from T. M. or his father (who had
initially approached counsel to represent T. M.),11 and she indicated
that she did not have an emotional bond with T. M. that caused her
to limit her questioning of him. Counsel testified that she was
“stunned” by T. M.’s trial testimony, as she assumed he would be
forthright and answer the questions he was asked, including in
regard to his relationship with Davis and other members of her
family. Counsel agreed that T. M. was “significantly discredited”
during his direct examination by the prosecutor and through the
testimony of a police officer who testified about previous statements
T. M. had given about being present in the house during the
11 By the time of Moss’s trial, T. M.’s father had already indicated to
counsel that he would not pay for any further defense for T. M. due to his lack
of cooperation with counsel. In addition, T. M.’s father had been charged with
a number of federal offenses. Counsel was not representing the father in his
case.
17
shooting. In its order denying Moss’s motion for new trial, the trial
court stated that it credited the testimony of trial counsel in
reaching its determination that no actual conflict of interest was
present.
(c) Here, all of the factors this Court identified in Moon support
the conclusion that counsel had no actual conflict of interest. See 288
Ga. at 514-515 (8).
(i) Pecuniary Interest. First, as the trial court found, there was
no evidence that counsel had any pecuniary interest in receiving
future legal business from T. M. or members of his family. The
record shows that T. M. was serving a 20-year prison sentence at the
time of Moss’s trial and that T. M.’s father was facing federal
criminal charges. Counsel herself indicated that she had no
expectation that she would provide further representation for T. M.
or his family members. In its order on Moss’s motion for new trial,
the trial court noted that it found trial counsel’s testimony to be
credible. Because we defer to the trial court’s credibility judgments
and because the trial court’s determination in regard to this factor
18
was otherwise supported by evidence in the record, we do not disturb
it. See Hill v. State, 269 Ga. 23, 25 (2) (494 SE2d 661) (1998) (no
hope of pecuniary gain where State witness who was prior client of
defense counsel was serving 20-year prison sentence at time of
defendant’s trial).
(ii) Confidential Information Received in Prior Representation
of T. M. Likewise, we agree with the trial court that Moss has
presented no evidence that counsel obtained privileged information
from T. M. that prevented her from conducting a thorough cross-
examination of him at Moss’s trial. The record shows that, although
counsel simultaneously represented T. M. and Moss for a few
months, her relationship with T. M. had essentially concluded in
August 2015 — over a year before Moss shot and killed Davis — and
that counsel had no meaningful contact with T. M. in an attorney-
client capacity after that time. Counsel testified that she did not
become aware that T. M. was a witness and alleged victim in Moss’s
case until after her representation of T. M. had concluded and that
she did not receive any information from T. M. about Moss’s case. As
19
noted above, the trial court found counsel’s testimony about her
relationship with T. M. to be credible.
Moss argues that “if” T. M. told trial counsel whether he was
having an affair with Davis (including a denial that such a
relationship existed), counsel would have been barred by the
Georgia Rules of Professional Conduct from disclosing that
information to Moss. Moss further argues that if T. M. denied having
a relationship with Davis, counsel would be barred from introducing
evidence suggesting otherwise. Finally, Moss suggests that counsel’s
failure to more aggressively confront T. M. about his relationship
with Davis is itself evidence that counsel was operating under a
conflict of interest that limited her ability to cross-examine T. M.
However, we need not consider the extent to which compliance
with the Georgia Rules of Professional Conduct might have limited
counsel’s ability to question T. M. Moss’s assertions about what T.
M. may have told counsel about his relationship with Davis or how
counsel might have in turn limited the scope of her questioning of T.
M. are purely speculative, and mere speculation about potential
20
conflicts of interest cannot establish that a conflict significantly and
adversely affected counsel’s performance at trial. See Sullivan, 446
U. S. at 350 (IV) (C) (“[T]he possibility of conflict is insufficient to
impugn a criminal conviction.”); see also Lamb v. State, 267 Ga. 41,
42 (1) (472 SE2d 683) (1996) (“[T]he conflict must be palpable and
have a substantial basis in fact. A theoretical or speculative conflict
will not impugn a conviction which is supported by competent
evidence.”).
Moreover, counsel’s decisions regarding the scope and extent of
her cross-examination of T. M. and how best to present evidence of
a relationship between T. M. and Davis were objectively reasonable
under the circumstances of Moss’s trial. Counsel had been unable to
locate video or other physical evidence of a relationship between T.
M. and Davis with which she could confront T. M. Counsel did,
however, call Moss’s sister to testify about the alleged relationship
between T. M. and Davis.
Based on counsel’s assessment of the damage already done to
T. M.’s credibility by his performance on the witness stand and the
21
limited prospect that he would suddenly choose to cooperate, counsel
could reasonably determine that any further efforts to cross-
examine him or impeach his testimony would be fruitless or
unnecessary and that evidence of the relationship could be
presented through the testimony of other witnesses. We regularly
afford deference to these types of decisions in the context of a claim
that counsel performed deficiently under Strickland v. Washington,
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), and claims
involving alleged conflicts of interest on the part of counsel, and we
do so here. See Tolbert, 298 Ga. at 157 n.11 (2) (d) (noting that
reasonable strategic defense choices are “virtually unassailable” in
the context of a conflict-of-interest claim of ineffective assistance of
counsel); see also Gaston v. State, 307 Ga. 634, 643 (2) (d) (837 SE2d
808) (2020) (reasonable to forgo cross-examination of State
witnesses where defense counsel determined that witnesses were
“complete failures who destroyed themselves when they got on the
stand[.]” (punctuation omitted)); Edwards v. State, 299 Ga. 20, 24
(2) (785 SE2d 869) (2016) (“Decisions about what questions to ask
22
on cross-examination are quintessential trial strategy and will
rarely constitute ineffective assistance of counsel. In particular,
whether to impeach prosecution witnesses and how to do so are
tactical decisions.” (citation omitted)).
(iii) Subject Matter of Representations. Finally, counsel
represented Moss and T. M. in separate cases involving separate
events. By the time of Moss’s trial in 2018, counsel’s “prior
representation [of T. M.] was concluded[,] and [it] was wholly
unrelated to the present case.” Moon, 288 Ga. at 515 (8). Thus, the
subject matter of counsel’s representation of T. M. was not
“substantially related” to her representation of Moss. Id.
For these reasons, we conclude that Moss has not shown that
his trial counsel labored under “an actual conflict of interest that
significantly and adversely affected the adequacy of the lawyer’s
representation of him at trial.” Tolbert, 298 Ga. at 157 (2) (d). Moss’s
claim of ineffective assistance of counsel on that basis therefore fails.
Judgment affirmed. All the Justices concur, except Colvin, J., not
participating.
23