September 22, 2014
Murder. Fulton Superior Court. Before Judge Adams.
Andrew S. Fleischman, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Lenny I. Krick, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Christian A. Fuller, Assistant Attorney General, for appellee.
Donald Deloatch was tried by a Fulton County jury and convicted of the murder of Jermaine Bowlds. Deloatch appeals, contending only that he was denied the effective assistance of counsel. We find no merit in this contention, and we affirm.
1. Viewed in the light most favorable to the verdict, the evidence shows that Bowlds was in the business of selling marijuana, and Deloatch was his customer. On December 5, 2005, Bowlds was carrying approximately $1,000, and he told Terry Turner -- an acquaintance of both Bowlds and Deloatch -- that he planned to speak later with Deloatch about giving up the distribution of marijuana and dealing in cocaine instead. That evening, around 10:45 p.m., Bowlds left the apartment that he and his girlfriend shared, telling her that he would return shortly. About twenty minutes later, his body was discovered on Ono Road, near its intersection with Wilkerson Mill Road, just outside the City of Palmetto. Bowlds had been shot in the face at close range. His car was found -- with a shattered window and blood spatter on the driver's seat -- in the parking lot of the Pinegrove Apartments in Palmetto. The money that Bowlds had been carrying earlier in the day was not found on his body or in his car.
[295 Ga. 682] Just before Bowlds was killed, Deloatch (or someone using his phone) exchanged several calls with Bowlds. Cellular telephone records showed that Deloatch (or someone else with his phone) was in the same area as Bowlds around the time Bowlds was killed. Bowlds's empty wallet was found along a path that led from the Pinegrove Apartments to Deloatch's home. When investigators first spoke with Deloatch, he said that Bowlds had visited him at his home on the evening of December 5. According to Deloatch, he purchased marijuana from Bowlds, did not have a cell phone with him, and went to bed without leaving his home that night. He later admitted, however, that -- on the night of December 5 -- he had left his home to visit his girlfriend, and he did, in fact, have a cell phone.
Sometime in 2006, Deloatch drove past the intersection of Ono Road and Wilkerson Mill Road, accompanied by Thomas Drake. According to Drake, as they passed the intersection, Deloatch said that it was the location at which " he got somebody ... by the name of Jamal or somebody with some drugs or money one time." Deloatch added that he had " got[ten] away with it," Drake said.
Deloatch does not dispute that the evidence is sufficient to sustain his conviction. Nevertheless, consistent with our usual practice in murder cases, we have reviewed the evidence and considered its legal sufficiency. We now conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Deloatch was guilty of the crime of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. In his sole enumeration of error, Deloatch claims that he was denied the effective assistance of counsel. To prevail on
a claim of ineffective assistance, Deloatch must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To prove that the performance of his lawyer was deficient, Deloatch must prove that she performed her duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U.S. 365, 381 (II) (C) (106 S.Ct. 2574, 91 L.Ed.2d 305) (1986). And to prove that he was prejudiced by the performance of his lawyer, Deloatch must prove " 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." Strickland, 466 U.S. at 694 (III) (B). See also Williams v. Taylor, 529 U.S. 362, 391 (III) (120 S.Ct. 1495, 146 L.Ed.2d 389) (2000). This burden is a heavy one. See [295 Ga. 683] Kimmelman, 477 U.S. at 382 (II) (C). We conclude that Deloatch has failed to carry his burden.
Deloatch contends on appeal that his trial counsel was ineffective in several respects. Trial counsel failed to conduct an adequate investigation, Deloatch says, insofar as trial counsel failed to discover two witnesses who could have testified that Drake had falsely implicated Deloatch in some robberies, failed to investigate immunity that had been offered to Drake in a Coweta County case, and failed to look into statements made by Turner to investigators that might have been helpful to the defense. Deloatch also says that his trial counsel stipulating at trial that he previously had been convicted of attempted robbery in North Carolina was ineffective. But with one exception, these claims were not timely presented to the trial court by motion for new trial, and the trial court never ruled on them. As such, Deloatch has failed to preserve such claims for appellate review. See Lynch v. State, 280 Ga. 887, 890 (3) (635 S.E.2d 140) (2006) ( " [c]ontentions of ineffectiveness not raised on motion for new trial by counsel appointed ... after conviction are waived" ).
The one exception is the claim that trial counsel failed to discover two witnesses who could have testified, Deloatch says, that Drake had falsely implicated Deloatch in some robberies. This claim was timely presented to the trial court at the hearing on the motion for new trial, and the trial court ruled on it. The problem with this claim, however, is that Deloatch failed to elicit any testimony from the two witnesses that, he says, his trial counsel should have found. Even if trial counsel had gone looking for these witnesses, there is no evidence whatsoever that trial counsel could have found them, that they would have been available to testify at trial, or that they would have testified as Deloatch claims. In the absence of such proof, Deloatch has failed to carry his burden to prove ineffective assistance. See Jones v. State, 292 Ga. 593, 599-600 (7) (c) (740 S.E.2d 147) (2013).
All the Justices concur.