Thurman v. State

Derrick Thurman was convicted by a DeKalb County jury of malice murder and other charges for fatally shooting Timothy Hobbs, a man with whom he had a history of conflict, in an apartment complex stairwell. After his trial lawyer died, Thurman argued in a motion for new trial that the lawyer had been constitutionally ineffective for failing to investigate and call his grandmother, Bernice Thurman, as a witness who could testify he was home around the time of the shooting. At the hearing, the grandmother testified she moved often, had no phone, and never spoke to Thurman or his lawyer about the shooting. Thurman admitted he never gave his lawyer her contact information or address. His mother claimed she gave the lawyer a phone number for the grandmother, but the trial court found her not credible. The Supreme Court of Georgia held that a lawyer cannot be faulted for failing to contact or call a witness whose whereabouts are unknown, and affirmed the conviction.

A trial lawyer cannot be found constitutionally deficient for failing to investigate or call as a witness a person whose whereabouts were unknown to the lawyer, and because the trial court found the defendant never gave his lawyer usable contact information for his grandmother, the ineffective assistance claim failed.

The ruling reinforces that Georgia defendants claiming their lawyer failed to call a witness must show the lawyer actually had a real way to find and reach that person, which affects how ineffective-assistance claims are evaluated in future appeals.

Affirmed

1. To win an ineffective assistance of counsel claim, a defendant must satisfy the Strickland test, showing both that his lawyer's performance was deficient and that this deficiency likely changed the outcome of the trial; failing either part defeats the claim.
2. To show deficient performance, a defendant must overcome a strong presumption that the lawyer acted within the range of reasonable professional conduct given all the circumstances, even when the lawyer has died and cannot testify to explain his choices.
3. The trial court heard testimony that the grandmother moved frequently, had no phone, and never spoke with the defendant or his lawyer about the shooting, and that the defendant never gave his lawyer her address or contact information.
4. The trial court found the mother's testimony that she gave the lawyer a working phone number for the grandmother not credible, because it conflicted with the grandmother's own testimony that she had no phone.
5. Because a lawyer cannot be considered ineffective for failing to investigate or call a witness whose whereabouts are unknown, the Supreme Court of Georgia concluded the trial court correctly rejected the ineffective assistance claim.

• murder conviction
• ineffective assistance of counsel
• alibi witness
• DeKalb County