S18A1208. MIMS v. THE STATE.
Supreme Court of Georgia
January 22, 2019
304 Ga. 851
PETERSON, Justice.
FINAL COPY
her request to be present at the motion for new trial hearing on remand in order to support her ineffectiveness claims. We reverse Mims‘s theft conviction because trial counsel was ineffective for failing to move to sever this count from the murder-related offenses. All of the remaining ineffectiveness claims against trial counsel fail, and because these claims fail for reasons independent of her absence at the hearing, her due process rights were not violated. Therefore, we affirm in part and reverse in part.
Viewed in the light most favorable to the jury verdicts, the trial evidence showed the following. On January 30, 2014, Christopher Sears drove his fiancée‘s car, a green 2012 Kia Soul, to work in the Detroit, Michigan area. Before he left work for the day, Sears had his boss start the car and left it running to warm up while Sears remained inside to finish his work. Sears saw someone about six feet tall climb into the car and drive away in the vehicle. Sears did not get a good look at the thief, who was shielding his or her face with a hooded sweatshirt, but told the police that he thought the thief was a white male. Sears testified that the thief had “blondish-brown, crinkly, curly” hair. Sears‘s wallet was in the console of the car when it was stolen, and the vehicle had a Michigan State University license plate frame. The car was reported stolen, and insurance paid about $11,000.
Mims, a black woman about six feet tall, lived in Detroit around the time of the theft. Shortly after the theft, Mims announced on Facebook that she had moved to Atlanta. Upon arriving in Georgia, Mims initially lived in a green 2012 Kia Soul before eventually moving into a house with Kylle Harewood, Harewood‘s girlfriend, and the girlfriend‘s family.
Sometime in early March 2014, Mims became very happy when she thought she had a winning lottery ticket, but Harewood told her it was not a winning ticket. Afterward, Mims talked about all the things she could do if she won money. On March 8, Mims purchased a red bandana, gloves, a roll of red duct tape, a fish fillet knife, and an Airsoft pistol that she painted to make it look like a real gun. Later that day, Harewood, with others nearby, asked Mims about the duct tape she had placed on the bottom of her shoes. Mims replied jokingly that “the less [they] know, the better” and “I‘m going to go in there, ask them how much is in the register.”
The next day, Mims drove a 2012 green Kia Soul to three different gas stations in Whitfield County. The clerks at the first two stores testified that Mims acted strangely, and one clerk said that Mims had asked how much money was in the register and whether the store had a safe.
Mims entered the third gas station, a Kanku‘s Express. Mims had burnt-orange colored blond hair, wore a black hooded sweatshirt and gloves, and carried a bag over her shoulder. She went to the bathroom, stayed there for some time, and briefly spoke to the store clerk, Chaudhari, upon exiting the bathroom. She left the store and waited outside
Several customers entered the store soon after Mims left, discovered Chaudhari‘s body, and called the police. When police arrived, they found Chaudhari lying in a large pool of blood and a cell phone next to Chaudhari that was later connected to Mims. The events at Kanku‘s Express were captured by surveillance cameras, and the video recording was played for the jury. Chaudhari died from the stab wounds.
Police later located Mims at her residence and saw the Kia Soul parked outside. After police arrested Mims, they searched the residence and found approximately 80 $500-a-week-for-life lottery tickets, keys to the Kia Soul, a pair of large sunglasses, and a white hooded sweatshirt. Police also searched the Kia Soul and found additional $500-a-week-for-life lottery tickets, a pair of black boots with red duct tape on the soles, gloves with red duct tape on them, and a black bag containing a roll of red duct tape, a knife with red duct tape on the handle, and an Airsoft pistol. DNA analysis revealed that Chaudhari‘s blood was found on the knife, the gloves had blood from Chaudhari on the outside and Mims‘s DNA on the inside, and the red duct tape tested positive for Chaudhari‘s DNA.
Police also found several other items inside the vehicle: Mims‘s wallet containing a MasterCard belonging to Sears; a Michigan State University license plate frame in the back hatch; and Sears‘s wallet and driver‘s license in the hatch. Police also discovered that the license tag number had been altered. The Kia Soul also contained personal items belonging to Mims, including documents and receipts issued to Mims before January 30, 2014, that were from Michigan, and documents and receipts bearing later dates that were created in Georgia.
1. The evidence was sufficient to sustain Mims‘s convictions.
(a) Mims argues that the evidence was insufficient to sustain her conviction for theft by bringing stolen property into the state. We disagree.
When we consider the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and inquire only whether any rational trier of fact might find beyond a reasonable doubt that the defendant is guilty of the crimes of which she was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979); White v. State, 293 Ga. 523, 523 (1) (753 SE2d 115) (2013). Under this review, we must “put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.” White, 293 Ga. at 523 (1).
The evidence also authorized a finding that Mims knew or should have known that the car had been stolen. Indeed, the evidence supported a finding that Mims stole the vehicle. Sears reported that the vehicle was stolen in Michigan by someone who was about six feet tall and had “blondish-brown, crinkly, curly” hair. Mims was living in Detroit at the time of the theft, is about six feet tall, and had burnt-orange colored blond hair at the time of the offenses in Georgia. Although Mims cites Sears‘s statements to police in which he said he thought a white male stole the vehicle, Sears testified at trial that he did not see the thief‘s face or “skin features.” In any case, it was the jury‘s role to resolve any conflicts or inconsistencies in the evidence. See Williams v. State, 287 Ga. 199, 200 (695 SE2d 246) (2010).
Contrary to Mims‘s claim, the State presented evidence of the car‘s value. There was evidence that the insurance company paid about $11,000 after the vehicle was reported stolen. As a result, the evidence was more than sufficient to sustain Mims‘s theft conviction.
(b) Although Mims does not challenge the sufficiency of the evidence with respect to the other offenses, including her murder conviction, it is our customary practice in murder cases to review the record and determine whether the evidence was legally sufficient. Having done so, we conclude that the evidence summarized above was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Mims was guilty of the other offenses for which she was convicted. See Jackson, 443 U. S. at 319.
2. Mims argues that her trial counsel was ineffective in several respects.
To prevail on any of her claims, Mims must show both that her counsel‘s performance was constitutionally deficient and that she was prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To establish deficient performance, Mims must “overcome the strong presumption that counsel‘s performance fell within a wide range of reasonable professional conduct, and that counsel‘s decisions were made in the exercise of reasonable professional judgment.” Simmons v. State, 299 Ga. 370, 375 (3) (788 SE2d 494) (2016) (citation and punctuation omitted). Decisions made as a matter of trial strategy and tactics do not amount to ineffective assistance of counsel unless “they were so patently unreasonable that no competent attorney would have followed such a course.” Id.
To prove that she was prejudiced by any deficient performance of her lawyer, Mims must show “‘a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‘” Shaw v. State, 292 Ga. 871, 874 (3) (742 SE2d 707) (2013) (quoting Strickland, 466 U. S. at 694). Where an appellant fails to meet her burden in satisfying one prong of the Strickland test, we need not review the other, as a failure to meet either of the prongs is fatal to an ineffectiveness claim. See Lawrence v. State, 286 Ga. 533, 533-534 (2) (690 SE2d 801) (2010).
(a) Mims first argues that trial counsel was ineffective for failing to pursue a defense based on insanity or mental illness at the time of her offenses. We disagree.
In October 2014, trial counsel filed a motion for a mental health evaluation, and the trial court granted that motion. Mims was evaluated by psychologist Dr. Samuel Perri
At the March 2015 competency hearing, Dr. Perri testified that he evaluated Mims again on January 15, 2015, and she was discharged from Central State shortly thereafter. Dr. Perri reported that Mims did not exhibit any active symptoms of psychosis or behavioral disturbances when he first evaluated her or at any point during her hospitalization at Central State.3 Based on observations of Mims, she was diagnosed as having a bipolar disorder with a possible personality disorder, and doctors considered Mims‘s judgment and
impulse control to be impaired. Nevertheless, Dr. Perri testified that he believed Mims was competent because she understood the nature of her charges and the seriousness of the offense, understood basic courtroom procedures, and demonstrated an ability to communicate effectively with her attorney. After Dr. Perri testified, trial counsel conceded that Mims was competent to stand trial and added that Mims was able to assist her in developing theories for trial. No evaluation as to Mims‘s sanity at the time of the offenses was ever conducted.
Mims argues that trial counsel was ineffective for failing to obtain an expert evaluation and for failing to pursue an insanity or mental health defense based on the evaluation. Trial counsel testified on remand, however, and the trial court implicitly credited her testimony that she reviewed Dr. Perri‘s report, had several conversations with him about it, and, based on those conversations, did not believe that Mims met the criteria for an insanity plea. It is true that Dr. Perri was evaluating Mims‘s competency only. See Brown v. State, 215 Ga. 784, 786 (1) (113 SE2d 618) (1960) (“[A defendant] may have mental capacity to be placed on trial, and yet be insane within the contemplation of the law as to responsibility for a criminal act.” (citation and punctuation omitted)). But even if trial counsel was deficient for failing to secure an expert evaluation as to Mims‘s sanity, Mims has failed to establish prejudice. Mims did not present any evidence that she had ever been evaluated by an expert or that a psychologist reviewed the record and formed an opinion as to her culpability at the time of the offense, and speculation about results if she had is not enough. As a result, Mims has not shown what the result of any additional examination would have been, and thus fails to show that the result of her trial would have been different if such an evaluation had been pursued. See Arnold v. State, 292 Ga. 268, 272-273 (2) (b) (737 SE2d 98) (2013) (no prejudice from failure to request mental health evaluation where psychologist who testified at the motion for new trial hearing could not give an opinion as to whether defendant was suffering from mental health issues at the time of the offense).
(b) Mims next argues that trial counsel was ineffective for failing to move to sever the theft count (for bringing a stolen vehicle into the state) from the murder-related offenses, because the theft offense was not of a similar character to the murder-related counts, was not based on the same conduct, and did not involve the same victims or witnesses. Mims further argues that, although her possession of the Kia Soul was probative of identity of the perpetrator of the murder-related offenses because the car was used during the commission of those offenses, the
[T]wo or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
Harrell v. State, 297 Ga. 884, 889 (2) (778 SE2d 196) (2015) (citation and punctuation omitted).