Thomas v. State

T
In the Supreme Court of Georgia



                                   Decided: April 5, 2021


                S21A0422. THOMAS v. THE STATE.


      BETHEL, Justice.

     A Fulton County jury found Courtney Thomas guilty of malice

murder and other offenses in connection with the shooting death of

his girlfriend, Shevonta Hardwick. Following the denial of his

motion for new trial, Thomas appeals, arguing that his trial counsel

provided constitutionally ineffective assistance by withdrawing a

motion to suppress evidence obtained by the police during a search

of Thomas’s vehicle. We affirm. 1


     1   The crimes occurred on October 31, 2013. On January 28, 2014, a
Fulton County grand jury returned an indictment charging Thomas with
malice murder, felony murder predicated on aggravated assault, aggravated
assault, and possession of a firearm during the commission of a felony. At a
jury trial held from September 14 to 16, 2016, Thomas was found guilty on all
counts. The trial court sentenced Thomas to life in prison for malice murder
and a consecutive term of 5 years in prison for possession of a firearm during
the commission of a felony. The remaining counts were either vacated by
operation of law or merged for sentencing. On September 22, 2016, Thomas
     1. The evidence presented at trial showed the following.

Thomas and Hardwick lived together in Hapeville in a ground-level

apartment with one of Thomas’s brothers, Dennis Thomas. The

apartment had a balcony that was about seven feet above the

ground. Several witnesses, including Thomas, testified that Thomas

and Hardwick had a good relationship and that there had never

been any violence, arguments, or aggressive behavior between them.

     On the evening of October 30, 2013, Thomas and Hardwick

were in the apartment alone together. Two upstairs neighbors

reported hearing three loud bangs, consistent with the sound of

gunshots, coming from an apartment below them around 11:00 p.m.

One neighbor also heard a man and woman arguing inside an

apartment prior to hearing the bangs. The neighbor testified that it

was obvious the argument was “turning physical.”



filed a motion for new trial, which he amended through new counsel on
November 12, 2019. The trial court held a hearing on the motion, as amended,
on January 9, 2020, and it denied the motion, as amended, on January 30,
2020. Thomas filed a motion for an out-of-time appeal on June 8, 2020, which
the trial court granted that day. Thomas filed a notice of appeal on June 12,
2020. This case was docketed to this Court’s term commencing in December
2020 and submitted for a decision on the briefs.
                                     2
     Dennis had spent the evening at a friend’s house. He came back

to the apartment after midnight and went to sleep. He did not see

Thomas or Hardwick when he came in. The next morning, Dennis

went into the bedroom that Thomas and Hardwick shared and found

Hardwick’s body on the floor, against the foot of the bed and facing

the balcony door. She was unresponsive. Dennis called Marquez

Higgins, and they both tried unsuccessfully to call Thomas. They

then called 911.

     Hapeville police officers responded to the 911 call and began

searching the apartment. In the bedroom, they found a receipt for

the purchase of a firearm in Thomas’s name,2 a broken cell phone

that belonged to Hardwick, four Luger Hornady 9mm shell casings,

one blood spot on the bed, and a bullet fragment. There were signs

of a struggle, including clothing and personal items strewn on the

floor, a broken shower curtain in the adjacent bathroom, and broken




     2A salesman from a pawn shop testified that he sold Thomas a Smith &
Wesson handgun, model SD9VE, in August 2013.

                                   3
wires on the bedroom television.3 It did not appear to the police that

Hardwick’s body had been moved.

      The balcony door was open when Dennis and Higgins came in

the bedroom and when the officers searched the apartment. Beneath

the balcony, the officers located a black left-foot Nike sandal that

Dennis indicated belonged to Thomas. The officers also noticed that

bushes surrounding the balcony were damaged.

      Later that day, a detective from the Hapeville Police

Department obtained a court order directing Thomas’s cell phone

service provider to release to the police certain data associated with

Thomas’s cell phone, including cell-site location information

(“CSLI”).4 The detective then worked with the service provider to


      3  Dennis testified that Thomas and Hardwick normally kept the bedroom
neat and clean.
       4 A “cell site” typically consists of a set of either three or six directional

radio antennas mounted on a tower, light post, flagpole, church steeple, or the
side of a building. See Carpenter v. United States, __ U. S. __, __ (I) (A) (138
SCt 2206, 2211, 201 LE2d 507) (2018). Unless powered off, a cell phone
continuously scans its environment looking for the strongest signal, which
generally comes from the nearest cell site. See

id. Each time a

phone connects
to a cell site, the connection generates a time-stamped digital record in the
service provider’s account records that includes the particular cell site and the
specific antenna activated (“sector” information); such records are known as
cell-site location information. See

id.
4

track Thomas’s cell phone using CSLI as the phone traveled away

from the Atlanta area to a location on a highway near the border

between Missouri and Iowa. The detective contacted the Iowa State

Patrol, stated that Thomas was a murder suspect and was being

tracked, and gave a description of the vehicle Thomas was thought

to be driving. Minutes later, an Iowa patrol officer stopped Thomas’s

vehicle and arrested him without incident.

     After obtaining a search warrant, officers from the Iowa State

Patrol and the Council Bluffs, Iowa, Police Department searched

Thomas’s vehicle. They found an iPhone; two unfired Luger Hornady

9mm rounds of ammunition, a disassembled Smith & Wesson

handgun (model SD9VE), 5 an empty 9mm handgun magazine, a

black handgun holster, clothing, $32 in cash, and a black right-foot

Nike sandal.

     The police searched and photographed Thomas after he was

arrested. During the search, the police found Hardwick’s bank debit

card in Thomas’s wallet. Records from the bank showed that


     5   The handgun was found in three separate pieces.
                                      5
Hardwick was the only authorized user of the card and that the card

had been used on October 31 at a gas station in Tennessee. Thomas

later admitted using the card to buy gas. Photographs of Thomas

showed that he had a bump on his forehead, a scrape on his elbow,

a swollen ankle, and other minor injuries.

     Hardwick’s autopsy revealed that she was shot four times and

that she died of multiple gunshots to the torso. The manner of her

death was homicide. The medical examiner recovered three bullets

from Hardwick’s body during the autopsy. There was no soot or

stippling on Hardwick’s body or clothing, which, according to the

medical examiner, indicated that she had been shot from at least

two feet away. The medical examiner also testified that Hardwick

had a bruise and cuts on her right arm that appeared to have been

caused at or near the time of her death. Hardwick had entry wounds

on both her front and back, which were consistent with Hardwick

turning away as she was being shot. Further, the bullets recovered

during Hardwick’s autopsy and the bullet and cartridge casings

found near Hardwick’s body were determined to be Hornady 9mm

                                 6
ammunition that had been fired from the handgun found in

Thomas’s car.

     Thomas testified at trial. He admitted shooting Hardwick, but

he claimed he acted in self-defense. He specifically testified as

follows.

     Thomas told the jury that he owned a gun that he often kept

on the nightstand of the bedroom he shared with Hardwick. He kept

the gun loaded and “ready to shoot” because he was worried that

someone could get into the apartment through the ground-level

balcony. Thomas said that Hardwick owned a .38-caliber handgun

that he had bought for her, but he did not know where she kept it.

On the night of the shooting, Thomas and Hardwick got into a

protracted argument after Hardwick became suspicious that

Thomas was sending text messages to other women. Their argument

escalated into a physical confrontation. Hardwick hit him in the

face, which broke his braces and caused his mouth to bleed. Later,

Hardwick came into the bathroom and hit him several times.

Thomas then shoved Hardwick against the bathroom wall. She

                                7
began crying, and Thomas apologized. Hardwick then stood up and

said, “You’re dead.”

     Hardwick then began rummaging through her belongings in

the apartment. In the bedroom, she tried to pull the television from

the wall, again told Thomas, “You’re dead,” and walked out of the

room, slamming the door behind her. Thomas could hear her

opening and closing kitchen drawers, and then Hardwick “busted”

into the bedroom and again shouted, “You’re dead.” According to

Thomas, she had her arm raised, and something was in her hand.

Thomas was sitting on the bed. He grabbed his gun from the

nightstand and began firing. He fired four shots and stopped firing

when Hardwick fell to the ground next to the foot of bed. Thomas

testified that he was not trying to kill Hardwick and was only trying

to stop her from coming toward him.

     Thomas did not check on Hardwick. Rather, he immediately

grabbed clothes from his closet and ran out of the bedroom through

the balcony door. He jumped over the balcony rail, went to his car,

and drove away. As Thomas drove away from the Atlanta area, he

                                 8
received numerous phone calls and text messages but refused to

answer because he was “ashamed.” While driving, he called a suicide

hotline because he considered committing suicide. He said that he

disassembled the gun and placed its pieces in different parts of the

car to “sav[e] his life” and that he threw unused rounds of

ammunition from his gun out of the car as he was driving. 6

     2. In his sole enumeration of error, Thomas argues that his

trial counsel provided constitutionally ineffective assistance by

withdrawing a motion to suppress evidence obtained by the police

during the search of Thomas’s car, the location of which was

determined by the use of “real-time” CSLI that identified the

location of his iPhone as Thomas was driving. Thomas argues that

his trial counsel should not have withdrawn the motion because she

should have been aware of then-existing case law from various state

and federal courts before the United States Supreme Court’s




     6 Thomas does not argue that the evidence was insufficient to support
his convictions, and because this case was docketed to the term beginning in
December 2020, we no longer routinely review that issue sua sponte. See
Davenport v. State, 

309 Ga. 385

, 391-392 (4) (846 SE2d 83) (2020).
                                     9
decision in Carpenter v. United States, __ U. S. __ (138 SCt 2206, 201

LE2d 507) (2018), which generally requires that law enforcement

obtain a search warrant supported by probable cause in order to

obtain “historical” CSLI. Thomas argues that had counsel pursued

the motion to suppress, the evidence obtained from Thomas’s car

after he was located through the use of CSLI would have been

excluded at trial, or, at a minimum, issues relating to the search

would have been properly preserved for appeal.

     The trial court determined that Thomas’s trial counsel did not

perform deficiently by not pursuing the motion to suppress. We

agree.

     To prevail on this claim, Thomas

     has the burden of proving both that the performance of
     his lawyer was professionally deficient and that he was
     prejudiced as a result. To prove deficient performance,
     [Thomas] must show that his trial counsel acted or failed
     to act in an objectively unreasonable way, considering all
     of the circumstances and in light of prevailing
     professional norms. To prove resulting prejudice,
     [Thomas] must show a reasonable probability that, but for
     counsel’s deficiency, the result of the trial would have
     been different. In examining an ineffectiveness claim, a
     court need not address both components of the inquiry if

                                 10
     the defendant makes an insufficient showing on one.

(Punctuation omitted.) Stuckey v. State, 

301 Ga. 767

, 771 (2) (804

SE2d 76) (2017) (citing Strickland v. Washington, 

466 U.S. 668

, 687

(104 SCt 2052, 80 LE2d 674) (1984)). “A strong presumption exists

that counsel’s conduct falls within the broad range of professional

conduct.” (Citation omitted.) Ford v. State, 

298 Ga. 560

, 566 (8) (783

SE2d 906) (2016).

     In October 2015, Thomas’s first trial counsel filed a pre-trial

motion to suppress evidence obtained during the search of Thomas’s

vehicle following his arrest in Iowa. In that motion, Thomas argued

that the police had been able to locate Thomas only by unlawfully

tracking his movements in real time utilizing CSLI. Thomas

asserted that the surveillance constituted a search under the Fourth

Amendment and that, although Georgia courts had yet to address

the issue, the Florida Supreme Court had recently held that

individuals have a reasonable expectation of privacy in the location

data transmitted from a personal cell phone, even while traveling on

public roads. See Tracey v. State, 152 S3d 504, 526 (Fla. 2014).

                                 11
Thomas argued that his arrest violated the United States

Constitution and the Georgia Constitution and that all evidence

obtained in the arrest and the subsequent search of his car should

be suppressed.

     Thomas’s first trial counsel later withdrew from representing

him, and Thomas obtained new counsel. At the start of Thomas’s

trial in September 2016, his new counsel withdrew the motion to

suppress. Counsel informed the trial court that, after reviewing the

motion to suppress, discussing it with Thomas, and conducting

further research, she did not believe there was a legal basis for the

motion and specifically noted a then-recent decision from the United

States District Court for the Northern District of Georgia denying a

defendant’s motion to suppress CSLI records based on the

determination that the defendant in that case had no legitimate

expectation of privacy in those records and that the Fourth

Amendment was not violated. See United States v. Wilson, No. 1:11-

cr-53-TCB, 

2013 U.S. Dist. LEXIS 37320

, at *2 (N.D. Ga. March 19,

2013). Later, at the hearing on Thomas’s motion for new trial, trial

                                 12
counsel testified that, at the time she withdrew the motion to

suppress, it was her impression that courts had been split about

whether a warrant would be required in order to obtain CSLI.

      At trial, as noted above, Thomas admitted shooting and killing

Hardwick and testified at length about the circumstances of the

shooting. He claimed he did not intend to kill Hardwick and that he

was acting in self-defense.7 In her opening statement and closing

argument, counsel argued that Thomas made a “split second”

decision to shoot Hardwick in self-defense when Hardwick came into

the bedroom with her arm raised. Counsel emphasized to the jury

that Thomas then fled from the apartment in a panic and later called

a suicide hotline and disassembled his gun in order to protect

himself because he was “distraught.” Counsel also emphasized that

Thomas had cooperated with the police and was taken into custody



      7 In addition to self-defense, at Thomas’s request, the jury was instructed
that it could find Thomas guilty of voluntary manslaughter as a lesser offense
of malice murder and felony murder. In her closing argument, without
conceding that Thomas was guilty, Thomas’s trial counsel referred to the
voluntary manslaughter charge as another “option” that the jury could
consider instead of finding Thomas guilty of murder. We express no opinion on
whether the evidence supported a charge on voluntary manslaughter.
                                       13
without incident.

     At the hearing on Thomas’s motion for new trial, trial counsel

testified that she abandoned the motion to suppress because

attempting to exclude items seized in the search of Thomas’s car

would be inconsistent with the self-defense theory she planned to

pursue at trial. Counsel testified that, in her discussions with

Thomas, he had been “adamant” that he acted in self-defense and

that counsel believed the evidence obtained in the search of his car

actually furthered the self-defense theory because it demonstrated

how “scared,” “panicked,” and “traumatized” Thomas was after

killing Hardwick.

     In light of Thomas’s decision to testify, his detailed testimony

regarding the circumstances of Hardwick’s shooting, and his

“adamant” claim to his counsel that he had acted in self-defense, it

was reasonable for counsel to vigorously pursue a self-defense

theory at trial and to characterize any evidence at her disposal in

any way that could advance that theory. Counsel’s testimony at the

hearing on Thomas’s motion for new trial makes clear that she

                                 14
believed at the time that, even if there were a legal basis for

suppressing the evidence found in Thomas’s car, it could be

advantageous to Thomas’s defense to have the evidence admitted

because counsel could use it to support the self-defense claim. This

decision was not objectively unreasonable under the circumstances

and therefore cannot form the basis of a claim of ineffective

assistance of counsel. See Reyes v. State, 

309 Ga. 660

, 671 (3) (a) (847

SE2d 194) (2020) (no deficient performance where counsel could

reasonably determine that best defense strategy was to forgo a

motion to suppress DNA evidence, welcome its admission, and offer

a plausible explanation for its presence at the crime scene); Dent v.

State, 

303 Ga. 110

, 118 (4) (a) (810 SE2d 527) (2018) (“[A]t the

motion-for-new-trial hearing, trial counsel testified that he wanted

the video of the custodial interrogation admitted because, in his

opinion, it assisted his client’s defense. Thus, this was a strategic

decision   which   has   not   been    shown    to   be   professionally

unreasonable.”); Gomez v. State, 

301 Ga. 445

, 459 (6) (a) (801 SE2d

847) (2017) (no deficient performance where counsel could

                                  15
reasonably determine that best strategy was to forgo objection to

certain testimony and instead use it to challenge the State’s theory

of the case). Because Thomas has failed to show that his trial counsel

performed deficiently by withdrawing the motion to suppress, his

claim of constitutionally ineffective assistance of counsel fails. 8

     Judgment affirmed. All the Justices concur.




     8  We note that this Court recently held that the exclusionary rule does
not apply where, before Carpenter was decided, law enforcement officers relied
on statutory law and then-binding appellate precedent to obtain CSLI without
a warrant. See Lofton v. State, __ Ga. __, __ (2) (__SE2d __) 

2021 WL 536259

,
at *10 (Case No. S20A1101, decided Feb. 15, 2021). Because we hold that
Thomas’s trial counsel did not perform deficiently because she had a
reasonable strategic purpose for withdrawing the motion to suppress, we need
not address whether her decision constituted ineffective assistance of counsel
related to the merits of the underlying motion.
                                     16

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