Redding v. State ( 2021 )

In the Supreme Court of Georgia
Decided: May 17, 2021
S21A0331. REDDING v. THE STATE.
BOGGS, Justice.
After a 2017 jury trial, Julian Keyon Redding was convicted of
malice murder and possession of a firearm during the commission of
a felony in connection with the shooting death of Prince Varner. He
appeals, asserting three errors in the trial court’s jury instructions
and ineffective assistance of trial counsel. For the reasons stated
below, we affirm. 1
1 The murder occurred on October 24, 2015. On January 14, 2016, a
Henry County grand jury indicted Redding for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
felony. Redding was tried before a jury from July 10 to 14, 2017, and found
guilty of all charges. Redding was sentenced to serve life in prison without the
possibility of parole for malice murder and five years to serve consecutively on
the firearm charge. The trial court merged the aggravated assault count into
the malice murder conviction, and the felony murder charge was vacated by
operation of law. On July 17, 2017, Redding’s trial counsel filed a timely motion
for new trial, which was amended by appellate counsel on December 2, 2019
and February 20, 2020. After a hearing, the motion for new trial was denied
1. The evidence at trial2 showed that on September 13, 2015,
Redding’s cousin, DeMarcus Jester, was shot in the leg. Redding was
aware of rumors that Prince Varner was responsible. On October 25,
2015, Varner, his girlfriend, and two friends went to the Red Zone,
a local bar in McDonough. All four were patted down by a bouncer
for weapons. During the evening, Redding and some of his friends
followed Varner around the bar and told him, “Somebody die
tonight.” They continued to harass him throughout the night, and
Varner told his girlfriend, “I feel like they going to jump me.” In the
early morning hours, one of Redding’s friends lured Varner outside
the bar by offering him a cigar. Redding emerged from the bar and
again told Varner, “Somebody die tonight. Somebody die tonight.”
Varner was standing at the bar entrance talking on his cell phone
on May 19, 2020. Redding’s notice of appeal was filed on May 20, 2020, and the
case was docketed in this Court for the term beginning in December 2020 and
submitted for decision on the briefs.
2 This Court no longer routinely considers sua sponte the sufficiency of
the evidence in non-death penalty cases. See Davenport v. State, 309 Ga. 385,
392 (4) (846 SE2d 83) (2020). But a review of the evidence here is relevant to
Redding’s enumerations of error.
2
when Redding retrieved a pistol from his car and approached
Varner, who said, “I’ll beat your mother******g *ss. Put down the
pistol.”3 Varner then ran back into the crowded bar. Redding
followed him to the entrance doorway and shot him six times from
behind, striking and wounding a bystander, and continuing to shoot
even after Varner fell face-down on the floor. Redding then fled;
Varner died at the scene.
The bar had an extensive video and audio surveillance system,
including close-up views of the bar entrance, and the shooting was
recorded and played for the jury. Video recordings and still frames
from the videos showed Varner standing outside the bar’s front
entrance, Redding running toward him from the parking lot, Varner
ducking and fleeing into the bar as Redding followed him through
the entrance doors, and Redding shooting Varner in the back
multiple times from only a few feet away, even after Varner fell to
3 Varner’s cousin, who was standing nearby, testified to Varner’s
statement. On direct examination, Redding denied that he heard this, claiming
instead that Varner said Redding should not create any “smoke” or controversy
or else Varner would “kill y’all.” But on cross-examination, Redding testified
only that Varner had threatened him at some unspecified earlier time.
3
the floor. Police officers recovered six shell casings near the bar
entrance, but no firearm was found on or near Varner’s body, and
three witnesses testified that Varner never had a gun. At trial,
Redding admitted that the shells were fired from his pistol.
Redding asserted a defense of justification by self-defense,
claiming that Varner had a violent reputation, belonged to a gang,
was known to carry a gun, was seen earlier in the evening taking a
pistol from his girlfriend’s purse, and was suspected of having shot
Jester. Redding claimed that Varner had threatened him on
Facebook and had sent threatening messages by cell phone, but he
did not produce any social media or telephone messages. In addition,
Redding testified that Varner had threatened him “earlier that
night” and that he overheard Varner threatening his cousin, Javon
Redding, and saying that he had a “MAC-10” submachine gun “on
deck.” Finally, Redding testified that when he approached Varner
outside the bar, “[w]hen he turned back toward me, it appeared I
seen a weapon, so I started shooting.” But Redding also testified that
he did not see what he said appeared to be a weapon until after he
4
approached Varner at the bar door with his pistol drawn, and did
not feel threatened until Redding “first walked towards him.” The
detective in charge of the investigation testified that the video and
still frames showed nothing in Varner’s right hand and a cell phone
in his left hand. 4
2. In Redding’s first enumeration of error, he contends that the
trial court erred in failing to give his requested charge on the defense
of mistake of fact under OCGA § 16-3-5, which provides: “A person
shall not be found guilty of a crime if the act or omission to act
constituting the crime was induced by a misapprehension of fact
4 While Redding asserts in his brief that the detective acknowledged at
trial that a still frame from the video could depict Varner with an object in his
right hand, this statement is not accurate. On cross-examination, Redding
repeatedly attempted to elicit testimony from the detective that several still
frames from the video showed that Varner could have had a gun in his right
hand, but the detective denied it, saying that at most he could not see what
was in Varner’s right hand in several frames because that hand was not visible
at that moment. On redirect, the prosecutor played the video of the shooting
again, and the detective testified positively that there was nothing in Varner’s
right hand. Moreover, the video recordings and the still frames were displayed
for the jury and form part of the record on appeal. See Jones v. State, 310 Ga.
886, 889 (2) (855 SE2d 573) (2021) (jury viewed video of shooting, and video
did not suggest that appellant was in such danger as to reasonably believe it
was necessary to shoot the victim); Henderson v. State, 310 Ga. 708, 709-710
(1) (854 SE2d 523) (2021) (same).
5
which, if true, would have justified the act or omission.” He cites this
Court’s decision in Pullin v. State, 257 Ga. 815 (364 SE2d 848)
(1988), in which we held that because the trial court fully charged
the jury on justification and self-defense, Pullin was not entitled to
a charge on mistake of fact pursuant to OCGA § 16-3-5. Id. at 817
(3).
Redding urges that Pullin be overruled because, he claims, it
fails to provide any reasoning or discussion of the language of the
relevant Code section in support of its holding. 5 But Pullin is not the
origin of this holding, which has been relied upon by this Court and
the Court of Appeals in opinions dating back nearly half a century,
and we decline Redding’s invitation to overrule Pullin or this line of
cases.
5Redding complains that “Pullin’s division 3 offered no reasoning at all,”
but that division actually referred specifically to the discussion of the “full and
fair” jury instructions on justification and self-defense in an earlier division of
the opinion. Moreover, Division 3 of the opinion cited Ellis v. State, 174 Ga.
App. 535 (330 SE2d 764) (1985), which cited numerous earlier decisions of this
Court and the Court of Appeals holding the mistake-of-fact instruction
substantially duplicative of a full and complete instruction on self-defense in
this context. Id. at 536 (2).
6
Since 1965, 6 a series of decisions has held that a mistake-of-
fact instruction is not required, even upon request, if the “mistake”
or “misapprehension” alleged by the defendant is the belief that the
victim possessed a weapon or was about to use deadly force against
the defendant, so long as the trial court fully instructs the jury on
justification and self-defense, including analogous principles of
justification and reasonable belief. See, e.g., Jordon v. State, 232 Ga.
749, 754 (4) (208 SE2d 840) (1974) (not error to refuse charge on
mistake of fact when “trial judge fully charged on justifiable
homicide”); McClendon v. State, 231 Ga. 47, 48 (4) (199 SE2d 904)
(1973) (requested charge on mistake of fact not required when “court
6 The Code of 1933, § 70-207, provided: “A new trial may be granted in
all cases when the presiding judge may deliver an erroneous charge to the jury
against such applicant on a material point, or refuse to give a pertinent legal
charge in the language requested, when the charge so requested shall be
submitted in writing.” In 1965, the General Assembly revised former Ga. Code
Ann. § 70-207, now OCGA § 5-5-24, removing the previous requirement that a
jury instruction requested in writing be given in the exact language requested.
See Ga. L. 1965, p. 18, § 17; see also Hardwick v. Price, 114 Ga. App. 817, 821
(3) (152 SE2d 905) (1966). Therefore “[t]he failure to give requested
instructions in the exact language requested, where the charge given
substantially covers the same principles, is no longer a ground for new trial.”
(Citations omitted.) Young v. State, 226 Ga. 553, 556 (5) (176 SE2d 52) (1970)
(citing Hardwick).
7
fully covered the principles of justifiable homicide, and it was not
error to fail to charge in the exact language requested.” (Citation
omitted.)). Also, in Ellis v. State, 174 Ga. App. 535 (330 SE2d 764)
(1985),the Court of Appeals relied upon both its decisions and those
of this Court to hold that the appellant was not entitled to a mistake-
of-fact charge when the trial court’s full charge on self-defense
included an instruction that “a person is legally justified in using
force against another when and to the extent that he reasonably
believes that such force is necessary to defend himself against such
other’s [imminent] use of unlawful force.” (Interpolation and
emphasis in original.) Id. at 536 (2).
This Court has continued to follow this line of cases after its
decision in Pullin. See, e.g., Winters v. State, 303 Ga. 127, 133 (III)
(810 SE2d 496) (2018) (holding that “mistake of fact is not separate
from a self-defense argument where the asserted mistake concerned
whether the victim was armed and the defendant’s use of force was
thus justified.” (Citation omitted.)); Daniel v. State, 285 Ga. 406, 411
(7) (677 SE2d 120) (2009) (mistake of fact not separate defense when
8
alleged mistake “concerned whether the victim was armed, and
thus, whether [appellant] was justified in shooting first in self-
defense.” (Citations and punctuation omitted.)); Bell v. State, 280
Ga. 562, 567 (5) (b) (629 SE2d 213) (2006) (same); Slaughter v. State,
278 Ga. 896, 896 (608 SE2d 227) (2005) (same).
Here, considering the charge as a whole, see Powell v. State,
307 Ga. 96, 100 (2) (a) (834 SE2d 822) (2019), the trial court did not
err in declining to give a mistake-of-fact instruction. The only
mistake of fact asserted by Redding was that he mistakenly believed
Varner had a gun, thus supporting his defense of justification by
self-defense. The trial court’s instructions included a lengthy series
of pattern jury instructions on justification and self-defense,
including language repeatedly instructing the jury on a defendant’s
“reasonable belief” with respect to the use of force in self-defense. A
mistake-of-fact instruction therefore was unnecessary, given the
trial court’s full and complete instructions on self-defense and
justification, and the trial court did not err in failing to give it on
request.
9
3. Redding asserts that the trial court committed plain error
when it failed to instruct the jury sua sponte that he had no duty to
retreat after the State questioned him about his testimony that he
left the bar and went to his car, asking why he did not leave if he
was afraid of Varner.
To establish plain error, [Redding] must identify an error
that was not affirmatively waived, was clear and not open
to reasonable dispute, likely affected the outcome of the
proceeding, and seriously affected the fairness, integrity,
or public reputation of judicial proceedings.
(Citation omitted.) Thompson v. State, 304 Ga. 146, 151 (6) (816
SE2d 646) (2018). 7
The relevant instruction says:
One who is not the aggressor is not required to retreat
before being justified in using such force as is necessary
for personal defense or in using force that is likely to
cause death or great bodily harm if one reasonably
believes such force is necessary to prevent death or great
bodily injury to oneself or a third person or to prevent the
commission of a forcible felony.
(Emphasis supplied.) Georgia Suggested Pattern Jury Instructions,
7 Redding acknowledges in his brief that he failed to request the charge
and raised no objection at trial, and that the plain error standard therefore
applies.
10
Criminal Cases 3.10.13 (2020).
Redding claims that his testimony regarding Varner’s earlier
threat to his cousin and Varner’s statement that he had a “MAC-10
on deck” was evidence that Varner was the “original aggressor.”
However, no evidence was presented that Varner had such a firearm
in his actual possession at the time.
A person is justified in threatening or using force against
another when and to the extent that he or she reasonably
believes that such threat or force is necessary to defend
himself or herself or a third person against such other’s
imminent use of unlawful force. Furthermore, the
doctrine of reasonable fear does not apply to any case of
homicide where the danger apprehended is not urgent
and pressing, or apparently so, at the time of the killing.
(Citations and punctuation omitted; emphasis in original.) Carter v.
State, 285 Ga. 565, 566 (2) (678 SE2d 909) (2009); see also OCGA §§
16-3-21, 16-3-23.1; Rammage v. State, 307 Ga. 763, 766-767 (2) (838
SE2d 249) (2020). Redding’s testimony that Varner threatened him
and his cousin earlier in the evening does not show imminent
danger. See Carter, 285 Ga. at 566-567 (2) (threat against
appellant’s relative 30 minutes before shooting insufficient to show
11
appellant was in imminent danger from victim.)
Nor does it show that Varner was an “aggressor” within the
meaning of OCGA § 16-3-21 (b). In Hoffler v. State, 292 Ga. 537 (739
SE2d 362) (2013), we rejected a similar allegation that the trial court
committed plain error in failing to instruct the jury on retreat. Id. at
542 (4). At his trial, Hoffler testified that he and the victim had an
earlier argument, during which the victim pulled out a knife. Hoffler
backed away, and no physical fight occurred at that time, but Hoffler
obtained a gun from a friend and later the same day confronted the
victim and shot and killed him, although he claimed that the victim
once again displayed a knife. Id. Noting that the legal theory of no
duty to retreat requires that the person claiming self-defense not be
the original aggressor, this Court observed:
Even though Hoffler claimed he saw a knife with blade
exposed, he was wielding a loaded handgun and he did
not testify that [the victim] threatened him verbally or
lunged at him or in any way attempted a physical attack
upon him. Indeed, the eyewitness accounts and the
forensic evidence do not support a claim that [the victim]
was the original aggressor.
(Punctuation omitted.) Id. We concluded that there was “no legal
12
error, obvious or otherwise,” and Hoffler could not “make it past the
first prong of the plain error review.” Id.Similarly, Redding testified that he and his cousin were
threatened by Varner earlier in the evening, but no confrontation
took place at that time. Instead, Redding acknowledged that he went
out to his car, retrieved a pistol, and approached Varner with his
pistol in hand before “[i]t appeared I seen a weapon.” While Redding
testified that Varner verbally threatened him, he acknowledged that
Varner turned away and ran into the bar, and that he pursued
Varner into the bar and shot him repeatedly. And in Redding’s case,
in addition to eyewitness accounts, the evidence includes multiple
video recordings of the incident, which also fail to support a claim
that Varner was the aggressor at the time of the shooting. No
evidence supports Redding’s claim that Varner was the aggressor,
and he therefore was not entitled to a jury instruction under OCGA
§ 16-3-23.1.
This Court further held in Hoffler that even assuming that
some evidence existed that Hoffler was not the original aggressor,
13
reversal was not required because his “defense of self-defense was
fairly presented to the jury, and the jury was fully instructed on the
law of justification and self-defense.” (Citation omitted.) 292 Ga. at
542-543 (4). As noted above, Redding’s claim of self-defense was
fairly presented to the jury, and the jury was also fully instructed in
the law of justification and self-defense. Redding therefore “has not
met his high burden of establishing plain error.” Knighton v. State,
310 Ga. 586, 595 (2) (a) (853 SE2d 89) (2020).
4. Redding also asserts that the trial court committed plain
error in instructing the jury to consider “intelligence” as a factor in
its assessment of witness credibility. The trial court gave the
following instruction:
The jury must determine the credibility of the witnesses.
In deciding this, you may consider all the facts and
circumstances of the case, including the witnesses’
manner of testifying, their intelligence, their means and
opportunity of knowing the facts about which they testify,
the nature of the facts about which they testify, the
probability or improbability of their testimony, their
interest or lack of interest in the outcome of the case, and
their personal credibility as you observed it.
“In the case of a review for plain error, it is not sufficient to find
14
actual legal error, as the jury instruction in question must have an
obvious defect rather than a merely arguable defect.” (Citations and
punctuation omitted.) Smith v. State, 301 Ga. 79, 81 (3) (799 SE2d
762) (2017).
[T]his Court has previously reviewed jury charges where
intelligence is given as a factor that may be considered
with respect to witness credibility and found no reversible
error where, as here, the court’s charge shows that the
intelligence factor was not highlighted or singled out; as
intelligence was just one of several factors which could be
considered. Indeed, even assuming that the better
practice is to omit intelligence as one of the factors in the
credibility charge, its inclusion is not reversible error
under the circumstances presented here. We find no
reversible error, much less any “plain error,” in the jury
instruction given by the trial court.
(Citations and punctuation omitted.) Id. at 82 (3). Similarly, we see
no plain error in the inclusion, without any particular emphasis or
comment, of these two words in the trial court’s jury instruction.
5. Redding asserts that his trial counsel provided
constitutionally ineffective assistance in four respects. To prevail on
his claim of ineffective assistance, Redding must prove both that the
performance of his lawyer was professionally deficient and that he
15
was prejudiced by this deficient performance. See Strickland v.
Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To prove deficient performance, he must show that his
attorney “performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” (Citation omitted.) Romer v. State, 293 Ga. 339,
344 (3) (745 SE2d 637) (2013). This requires a defendant to
“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.” (Citation and punctuation omitted.)
Marshall v. State, 297 Ga. 445, 448 (2) (774 SE2d 675) (2015). And
to prove prejudice, Redding “must show that there is 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). “If either Strickland
prong is not met, this Court need not examine the other prong.”
16
Palmer v. State, 303 Ga. 810, 816 (IV) (814 SE2d 718) (2018). We
conclude that Redding’s counsel did not render ineffective assistance
for the reasons stated below.
(a) Redding asserts that his trial counsel was ineffective in
“opening the door” to testimony regarding Redding’s calls from jail
by eliciting testimony from Redding that he regretted the shooting,
that he was sorry that it happened, and that he only shot Varner
because he feared for his life and that of his cousin. The State then,
over Redding’s counsel’s objection – which was denied because the
trial court concluded it was impeachment testimony – called the lead
detective in rebuttal to testify that he listened to Redding’s calls
from the jail and that in several calls Redding was laughing and
joking about the shooting. 8 Trial counsel again objected and moved
for a mistrial after the detective testified that Redding “never
appeared to be scared, nervous, or remorseful for the shooting, in my
opinion.” The motion for mistrial was denied, but the jury was
instructed to disregard the detective’s statement.
8 Neither a recording nor a transcript of the calls was offered in evidence.
17
At the hearing on Redding’s motion for new trial, trial counsel
testified that he was aware of the jail calls but made a decision to
elicit an expression of regret from Redding in an attempt to make
Redding appear more sympathetic to the jurors, to emphasize that
Redding feared for his life, and to counter evidence that Redding had
threatened the victim and that the shooting was in revenge for the
earlier shooting of Redding’s cousin. Counsel testified that, given the
lengthy time Redding had been in jail, he believed that any
statements in a telephone conversation with a friend would have
been only casual remarks “in a light moment” that would not
contradict that Redding felt remorse and regret for what had
happened. Counsel further testified that he still believed that all of
the investigating officer’s testimony was objectionable and that the
trial court should not have admitted any of it.
The trial court concluded that counsel had a strategic basis for
his questions to Redding, and that even though the strategy was not
successful, it was not professionally deficient. We agree.
With the benefit of hindsight, it would appear that this
18
strategy may have backfired. But that is not to say that it
was ineffective. Informed strategic decisions do not
amount to inadequacy under Strickland. The fact that
[Redding] and his . . . present counsel now disagree with
the difficult decisions regarding trial tactics and strategy
made by trial counsel does not require a finding that
[Redding] received representation amounting to
ineffective assistance of counsel.
(Citations and punctuation omitted.) Muller v. State, 284 Ga. 70, 73-
74 (3) (663 SE2d 206) (2008). In light of the evidence presented
against Redding, trial counsel’s strategic choices were limited, and
we cannot say that the decision to elicit this testimony requires a
finding of deficiency. Moreover, as the trial court also observed, the
evidence of Redding’s guilt was compelling, including multiple close-
range video recordings of the shooting itself, and Redding therefore
cannot show a reasonable probability that, but for the detective’s
testimony, the result at trial would have been different.
(b) Redding also asserts that his trial counsel was ineffective
in failing to object to the prosecutor’s comments on Redding’s pre-
arrest silence and failure to come forward with evidence to law
enforcement. He relies upon the “bright-line rule” announced in
19
Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991), but
that rule was abrogated by the adoption of Georgia’s current
Evidence Code, which was in effect at the time of Redding’s 2017
trial. See State v. Orr, 305 Ga. 729, 736 (2) (827 SE2d 892) (2019).
Acknowledging that Mallory no longer applies, Redding contends
that Orr permits appellants to “raise Mallory-style challenges to
evidence of a defendant’s pre-arrest silence,” and that trial counsel
should have done so. But Orr was decided in 2019, and at the time
of Redding’s trial the viability of Mallory remained unsettled. See
Williams v. State, 302 Ga. 474, 482 (IV) (a) (807 SE2d 350) (2017)
(“[T]rial counsel’s performance cannot be deemed deficient for not
raising an unsettled question of law.”).
Before Orr, this Court held that, because the validity of
Mallory was “subject to reasonable dispute,” trial counsel
was not ineffective for failing to lodge an objection under
that decision as it was an unsettled question of law. Now
that we have squarely held that Mallory was abrogated
by Georgia’s new Evidence Code, it is clear that a
defendant cannot prevail on a claim of ineffectiveness on
the basis that his trial counsel failed to rely on a case that
was not applicable to his trial.
(Citations and punctuation omitted.) Jackson v. State, 306 Ga. 266,
20
273 (5) (a) (830 SE2d 99) (2019). Redding cites no controlling
precedent that his trial counsel supposedly missed in not raising
“Mallory-style” challenges, and Redding therefore has failed to show
deficiency on the part of his trial counsel in this respect.
(c) Redding next asserts that his trial counsel was ineffective
in failing to request a jury instruction on the lesser offense of
voluntary manslaughter. Voluntary manslaughter applies to
“circumstances which would otherwise be murder [when the
defendant] acts solely as the result of a sudden, violent, and
irresistible passion resulting from serious provocation sufficient to
excite such passion in a reasonable person.” OCGA § 16-5-2 (a).
We have made clear that decisions as to which jury
charges will be requested and when they will be requested
fall within the realm of trial tactics and strategy. They
provide no grounds for a new trial unless such tactical
decisions are so patently unreasonable that no competent
attorney would have chosen them.
(Citation and punctuation omitted.) Finnissee v. State, 309 Ga. 557,
560-561 (2) (847 SE2d 184) (2020).
At the hearing on the motion for new trial, Redding’s trial
21
counsel was asked why he did not ask for instructions on voluntary
manslaughter, and he responded that he did not do so because “the
facts of the case didn’t suggest that it was warranted. . . . It just
seems to me that under those facts, those charges, I don’t believe
they would have been given had they been requested.”
[W]hile jury charges on self-defense and voluntary
manslaughter are not mutually exclusive, the provocation
necessary to support a charge of voluntary manslaughter
is different from that which will support a claim of self-
defense. The distinguishing characteristic between the
two claims is whether the accused was so influenced and
excited that he reacted passionately rather than simply
in an attempt to defend himself. Only where this is shown
will a charge on voluntary manslaughter be warranted. A
charge on voluntary manslaughter is not available to a
defendant whose own statement unequivocally shows
that he was not angered or impassioned when a killing
occurred, and when the other evidence does not show
otherwise.
(Citations and punctuation omitted.) Tarpley v. State, 298 Ga. 442,
444-445 (3) (a) (782 SE2d 642) (2016). In his testimony, Redding
denied being angry at Varner; under cross examination by the State,
he denied the prosecutor’s suggestion that the video recording and
still frames showed “anger and determination,” stating, “It’s a
22
normal look, ain’t it?” and that “[m]y mouth just open.”
The other evidence presented tended to show that the shooting
was not done in self-defense but rather was motivated by
antagonism between Redding and Varner and their associates,
largely due to Redding’s belief that Varner had shot Redding’s
cousin weeks before. See Johnson v. State, 297 Ga. 839, 842-843 (2)
(778 SE2d 769) (2015) (voluntary manslaughter charge not
warranted in malice murder prosecution, despite defendant’s
allegation that he and victim had an antagonistic relationship,
including physical confrontations). See also Finley v. State, 286 Ga.
47, 49 (3) (a) (685 SE2d 258) (2009) (“[W]ords alone cannot constitute
serious provocation.” (Citation omitted.)). “As counsel articulated a
valid strategic decision regarding this instruction, failure to request
this charge is not ineffective assistance.” (Citation and punctuation
omitted.) Walker v. State, 308 Ga. 33, 42 (3) (e) (838 SE2d 792)
(2020).
(d) Redding asserts that his trial counsel was ineffective in
failing to request a jury instruction that Redding had no duty to
23
retreat. Trial counsel testified that, given that the video did not
show any aggressive action on Varner’s part and that Varner was
unarmed and was shot in the back, “[i]t just seems to me that the
facts likely weren’t there to talk about retreating and these sorts of
things under those circumstances.” As noted in Division 3, supra,
this instruction was not adjusted to the facts, and “[t]rial counsel
cannot be faulted for failing to request a jury charge that was not
authorized by the evidence.” (Citation and punctuation omitted.)
Barnes v. State, 305 Ga. 18, 21 (2) (b) (823 SE2d 302) (2019).
(e) Finally, Redding asserts that the cumulative effect of the
trial court’s errors and ineffectiveness of his trial counsel deprived
him of a fair trial. See State v. Lane, 308 Ga. 10, 13-14 (1) (838 SE2d
808) (2020). But here, we have found no deficiency on the part of
trial counsel and no error on the part of the trial court, and Redding
therefore cannot show cumulative error. See Cox v. State, 306 Ga.
736, 743 (2) (e) (832 SE2d 354) (2019) (“[W]e evaluate only the effects
of matters determined to be error, not the cumulative effect of non-
errors.” (Citations and punctuation omitted.)).
24
Judgment affirmed. All the Justices concur.
25