Opinion
S19A0694
08-19-2019
SMITH v. STATE.
Michael Shane Howard, McMillan & Rawlings, LLP, P.O. Box 5746, Sandersville, Georgia 31082, for Appellant. Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Joshua Bradley Smith, A.D.A., Rebecca Ashley Wright, Natalie Spires Paine, District Attorneys, Augusta Judicial Circuit District Attorney's Office, 735 James Brown Blvd., Suite 2400, Augusta, Georgia 30901, for Appellee.
Michael Shane Howard, McMillan & Rawlings, LLP, P.O. Box 5746, Sandersville, Georgia 31082, for Appellant.
Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Joshua Bradley Smith, A.D.A., Rebecca Ashley Wright, Natalie Spires Paine, District Attorneys, Augusta Judicial Circuit District Attorney's Office, 735 James Brown Blvd., Suite 2400, Augusta, Georgia 30901, for Appellee.
Bethel, Justice. Following his conviction for the murder of Patricia Burley, Corey Smith appeals from the denial of his motion for new trial, arguing that the trial court erred in denying his motion because he received ineffective assistance of counsel at trial. We disagree and affirm.
The crimes occurred in August 2010. On March 6, 2012, a Richmond County grand jury indicted Smith for malice murder and felony murder predicated on the aggravated assault of Patricia Burley. At a March 2012 trial, a jury found Smith guilty of both charges. The trial court purported to merge the felony murder count into the malice murder count, but the felony murder count was actually vacated by operation of law. See Malcolm v. State , 263 Ga. 369 (5), 434 S.E.2d 479 (1993). Smith was sentenced to life without the possibility of parole.
Smith filed a motion for new trial on April 4, 2012, and he amended that motion on February 2, 2016. Following a hearing, the trial court denied the motion (as amended) on August 17, 2018. Smith filed a notice of appeal to this Court on August 20, 2018, and the case was docketed in this Court to the April 2019 term and submitted for a decision on the briefs.
Viewed in the light most favorable to the verdicts, the evidence presented at trial shows the following. On the morning of August 22, 2010, 54-year-old Burley was staying at the house of her neighbor, Mary Williams. Burley had Down Syndrome and according to her cousin, who cared for her, had the mental capacity of a seven-year-old child. Burley was on the front porch with Williams’ grandson when Smith approached and began talking to Burley. When the grandson asked Burley who Smith was, she replied that Smith was her boyfriend.
The grandson went inside the house and told Williams that a man was on the front porch with Burley. Williams came outside, and Smith introduced himself after Williams asked him his name. Williams returned inside, but, when she came out a little bit later, Smith was "hugging on" Burley. Williams asked Burley to come inside. Later that evening at around 10 p.m., Burley’s cousin called Williams and asked for Burley to return home. However, Burley did not return home.
Williams’ grandson testified that when Burley left the house that evening, she was walking with Smith away from her home, toward her church. Another neighbor witnessed Burley walking hand-in-hand with Smith through some bushes near his home. Several days later, Burley’s body was discovered next to a trashcan in a wooded lot some distance away. An autopsy revealed that Burley had died from asphyxiation. Smith’s partial palm print and a fingerprint were found on that trashcan, and two witnesses informed police that they had observed Smith pushing a trashcan near that area. A couple of days before Burley’s body was found, Smith was seen scrubbing his hands and wiping his body down with water at a nearby gas station. Investigators later found Burley’s DNA on Smith’s shorts.
Smith was arrested for Burley’s murder. Prior to trial, Smith filed a special plea of mental incompetence and a notice of intent to raise insanity or mental incompetence. The court ordered a competency-to-stand-trial evaluation and a criminal-responsibility evaluation of insanity. A special jury trial on the issue of competency was held on March 12, 2012. At that trial, the evaluator testified that Smith suffered from schizophrenia with paranoid subtype. However, the evaluator did not testify that Smith was unable to distinguish between right and wrong or that he was operating under a delusional compulsion at the time of the offense. After the competency trial, the jury returned a verdict against Smith’s special plea of incompetence. Before his trial, Smith requested jury charges on mental illness that tracked the language pertaining to "guilty but mentally ill" set forth in OCGA § 17-7-131 and on considering mental illness with the evidence as a whole. Smith ultimately presented a defense of innocence, rather than insanity or mental illness, and the charges were not given. Smith was found guilty. Although Smith does not challenge the sufficiency of the evidence supporting his conviction, as is our practice in murder cases, we have reviewed the record and conclude that the evidence presented at trial and summarized above was sufficient for a rational trier of fact to find Smith guilty beyond a reasonable doubt of the crime for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The charge conference was not transcribed and the record does not indicate why the requested charges ultimately were not given.
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1. Smith argues that he received ineffective assistance because his trial counsel failed to request a jury instruction on insanity or mental illness as set forth in OCGA § 17-7-131. We disagree.
In order to succeed on his claim of ineffective assistance, [Smith] must prove both that his trial counsel’s performance
was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV) ; Fuller v. State , 277 Ga. 505 (3), 591 S.E.2d 782 (2004).
Wright v. State , 291 Ga. 869, 870 (2), 734 S.E.2d 876 (2012). "Decisions on requests to charge involve trial tactics to which we must afford substantial latitude, and they provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them." (Citation and punctuation omitted.) Mitchell v. State , 282 Ga. 416, 420 (6) (d), 651 S.E.2d 49 (2007).
Here, Smith generally asserts that the outcome of his trial would have been different had trial counsel requested and the jury received an instruction under OCGA § 17-7-131. However, the record indicates that trial counsel actually requested a charge on guilty but mentally ill that tracked that portion of OCGA § 17-7-131, although the record does not indicate why the charge was not given. Even assuming trial counsel withdrew her request or waived the charge, Smith’s trial counsel testified at the motion for new trial hearing that she made a strategic decision not to pursue the affirmative defenses of insanity or mental illness. This was because Smith maintained that he did not commit the murder and because the evaluator had not concluded that Smith was insane at the time of the murder. Indeed, Smith steadfastly maintained his innocence even at the motion for new trial hearing. Counsel’s strategic decision was not unreasonable under these circumstances, so Smith has failed to prove that his counsel performed deficiently. See King v. State , 282 Ga. 505, 507 (2) (a), 651 S.E.2d 711 (2007) (finding that the appellant did not prove ineffective assistance when his trial attorney chose to argue innocence rather than a lesser included offense where defendant had asserted his innocence); Mitchell , 282 Ga. at 420 (6) (d), 651 S.E.2d 49.
Judgment affirmed.
All the Justices concur.