Walker v. the States ( 2021 )

In the Supreme Court of Georgia
Decided: August 10, 2021
S21A0779. WALKER v. THE STATE.
LAGRUA, Justice.
Appellant Hezekiah Walker was convicted of felony murder
and other offenses in connection with the May 2018 shooting death
of Samuel Davis, IV. 1 On appeal, Appellant contends that (1) the
1 The crimes were committed on May 16, 2018. Appellant was indicted
by a Fulton County grand jury on September 19, 2018, on one count of malice
murder; two counts of felony murder; one count of aggravated assault; one
count of criminal attempt to sell marijuana; and one count of possession of a
firearm during the commission of a felony. At a jury trial held in March 2019,
Appellant was acquitted of malice murder and found guilty of all other counts.
On April 1, 2019, Appellant was sentenced to life in prison for felony murder,
a consecutive five-year term for criminal attempt to sell marijuana, and a
second consecutive five-year term for the firearm-possession count. The second
felony murder count was vacated by operation of law, and the aggravated
assault count merged into the first felony murder count. Appellant filed a
motion for new trial on April 1, 2019, which he amended through new counsel
on March 6 and July 31, 2020. Following a hearing held on October 22, 2020,
the trial court denied the motion for new trial in an order entered on December
15, 2020. The trial court granted Appellant an out-of-time appeal on February
2, 2021, and Appellant filed a notice of appeal that same day. The appeal was
docketed to the April 2021 term of this Court and was thereafter submitted for
a decision on the briefs.
evidence was insufficient to support his convictions and to overcome
his justification defense; (2) the prosecutor’s closing argument
violated his right to a fair trial; (3) the trial court erred by excluding
certain photographs of the victim offered by the defense while
allowing the State to offer a different photograph of the victim; and
(4) trial counsel rendered ineffective assistance in various respects.
We see no error, and thus we affirm.
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial established that, at 2:15 a.m. on May 16,
2018, Davis was shot and killed in the parking lot of a Shell gas
station in Fairburn. Two of Davis’s friends, who were interviewed
by police at the scene, described the shooter as a heavy-set man with
dreadlocks who fled in a red Mustang with white stripes. In the
parking lot, crime scene investigators found ten nine-millimeter
shell casings, eight .40-caliber shell casings, a counterfeit $100 bill,
and an iPhone, which was later determined to be Davis’s. Davis died
from multiple gunshot wounds. The bullets and bullet jacket
recovered from Davis’s body were later determined to have been
2
fired from a nine-millimeter pistol. Ballistics testing determined
that all of the nine-millimeter shell casings had been fired from a
single weapon and, likewise, all of the .40-caliber shell casings had
been fired from a single weapon.
Witness Christopher Stodghill, a close friend of Davis, testified
that he had been with Davis and another friend, Cerdon Abeny,
during the day and evening preceding the shooting. At some point
during the evening, Davis arranged to buy some marijuana. The
trio drove to a Waffle House for this purpose, but the seller never
showed up. Stodghill and Abeny then dropped Davis off at Davis’s
apartment and drove to the Shell gas station across the street. After
exiting the car, Stodghill noticed a man with dreadlocks, whom he
recognized as having previously sold marijuana to Davis; the man
had a gun tucked under his arm. Stodghill went into the gas
station’s convenience store and was soon joined by his brother,
Daniel, and another friend, Chalyne Tolbert, who had just arrived
at the gas station. While they were in the convenience store, they
heard gunshots coming from outside. Stodghill ran out to find Davis
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face down in the parking lot next to the convenience store. Daniel
also ran outside, saw Davis on the ground, and returned fire with a
.40-caliber handgun in the direction of the shooter, who fled in a red
Mustang.
Video from the gas station’s security camera, which was played
at trial, shows a red Mustang with white stripes driving up to a gas
pump at 2:12 a.m. A man, identified as Appellant, gets out of the
front passenger side, walks out of the frame, and then walks back
and begins pumping fuel. Another man, identified as Davis, is seen
approaching the gas station on foot and walking up to Appellant.
The men walk to the side of the convenience store, outside the view
of the camera. Seconds later, Appellant comes into view, rapidly
backing up and firing shots. Appellant jumps into the Mustang,
which speeds off. Immediately after the shots are heard, a man
identified as Daniel exits the store, surveys the scene, and begins
firing at the fleeing Mustang. A man identified as Stodghill runs
over to Davis.
4
Stodghill confirmed during his testimony that the video also
shows him removing a gun from Davis’s lower body. Stodghill
testified that this gun was his, that he removed it from either Davis’s
pocket or a fanny pack and gave it to Tolbert, and that Tolbert then
ran from the scene. He acknowledged that he had initially failed to
tell investigators about removing the gun and that it was only after
questioning by an investigator several months later that he
admitted having done so.
Davis’s girlfriend, Sydni Jordan, testified that she drove Daniel
and Tolbert to the gas station on the night of the shooting and that
she stayed in the car while they went inside to buy drinks and
snacks. While she sat there, she saw Davis walk past the car with
a man and shortly thereafter heard shots and saw gunfire.
South Fulton Police Detective Terrence Jackson testified that
the call log from Davis’s cell phone showed the last received call was
at approximately 2:05 a.m. The associated phone number was listed
in Davis’s contacts as “plug,” which, Detective Jackson testified, is
street slang for a drug dealer. Detective Jackson ran the phone
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number through a police database, which linked the number to
Appellant. From a photographic lineup shown on the morning of the
shooting, Stodghill identified Appellant as the man with dreadlocks
he had seen before entering the convenience store, and Jordan
identified Appellant as the man she had seen walking with Davis
just before the shooting.
Appellant admits that he shot Davis but claims he did so in
self-defense. At trial, the defense theory was that Davis lured
Appellant to the gas station with the intent to rob him and
brandished a gun first. Appellant testified that he met Davis a few
weeks before the shooting, that Davis contacted him on May 15
about purchasing marijuana, and that, because he was “picky” about
those he did business with, he was planning to meet Davis only “to
get to know him more” and took no marijuana with him to the
meeting. According to Appellant, when he arrived at the gas station,
Davis approached and invited him to “take a walk.” Davis ushered
Appellant over to the side of the convenience store, where Davis
pulled out what looked like a $100 bill with one hand and a gun with
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the other. Appellant pulled his gun and fired, then ran back to his
red Mustang, where his girlfriend Tamyah Clark was waiting. With
gunshots hitting the car, Clark drove off. The next day, Appellant
drove to a wooded area and threw his gun into the woods.
Clark admitted that she knew Appellant was a marijuana
dealer. She testified, however, that she had not seen any drugs in
the car or in Appellant’s possession on the night of the shooting and
had not overheard Appellant’s phone conversations that evening.
Clark admitted that they did not call the police after leaving the
scene. On cross-examination, Clark testified that Appellant told her
during a post-arrest phone conversation to give a police statement
saying that she had seen a gun in Davis’s possession at the gas
station. Clark refused because she was unsure of what she had seen.
That jail phone call was recorded, and the recording was played for
the jury.
The jury also heard a recording of Appellant’s jail phone
conversation with his friend Michael Dixon. In the recording,
Appellant can be heard telling Dixon that Clark saw him “weigh that
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sh*t up” before they left for the gas station, and Dixon remarks that
Clark knew they were going to the gas station to “sell weed” and
“make a transaction.”
1. Appellant contends that the evidence was insufficient to
overcome his justification defense and support his convictions. We
disagree.
When evaluating the sufficiency of evidence, we must
determine whether a rational trier of fact could have
found the defendant guilty beyond a reasonable doubt. In
making that determination, we view the evidence in the
light most favorable to the verdict, and we 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 jury. As
long as there is some competent evidence, even if
contradicted, to support each fact necessary to make out
the State’s case, the jury’s verdict will be upheld.
Thomas v. State, __ Ga. __ (1) (858 SE2d 504, 507) (2021) (citations
and punctuation omitted).
Here, Appellant admits that he shot Davis. Thus, the only
question as to the sufficiency of the evidence supporting Appellant’s
convictions for felony murder and firearm possession was whether
the shooting was committed in self-defense. Although Appellant
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testified that he fired his gun only after Davis brandished his, the
jury was entitled to disbelieve this testimony, and ample
corroborating evidence exists to support the convictions. See
Daughtie v. State, 297 Ga. 261, 263-264 (2) (773 SE2d 263) (2015).
Though it is undisputed that Davis had a gun on his person at the
time of his encounter with Appellant, there was no evidence – apart
from Appellant’s own testimony – that Davis drew the gun. It is
clear that Davis never fired his gun, as the ballistics evidence
established that only two guns were fired, and the surveillance video
showed that the second shooter was Daniel, not Davis. Further,
Stodghill testified that the gun he removed from Davis’s body was
either in Davis’s pocket or in his fanny pack. The jury was thus
authorized to find beyond a reasonable doubt that Appellant was not
acting in self-defense at the time he shot Davis. See Carter v. State,
310 Ga. 559, 561-562 (1) (b) (852 SE2d 542) (2020) (affirming jury’s
rejection of appellant’s self-defense claim); Shaw v. State, 292 Ga.
871, 872 (1) (742 SE2d 707) (2013) (“[T]he jury is free to reject the
defendant’s claim that he acted in self-defense.”).
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The evidence was also sufficient to support Appellant’s
conviction for criminal attempt to sell marijuana. Appellant
admitted that he was a marijuana dealer, that Davis contacted him
about purchasing marijuana, and that he agreed to meet Davis on
the night of the shooting. Although Appellant contends that he had
no plans to sell marijuana to Davis that night, the jury was
authorized to disbelieve this assertion, particularly in light of
Stodghill’s testimony that Davis was attempting to buy marijuana
that night and Appellant’s recorded remarks about “weighing that
sh*t up” before leaving for the gas station. See Daughtie, 297 Ga. at
263-264 (2).
Accordingly, the evidence presented at trial was sufficient as a
matter of constitutional due process to authorize a rational jury to
find beyond a reasonable doubt that Appellant was guilty of all the
crimes of which he was convicted. See Jackson v. Virginia, 443 U.S.
307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Appellant contends that a remark made during the State’s
closing argument amounted to prosecutorial misconduct.
10
Specifically, the prosecutor argued:
To acquit this man, you’re going to have to disregard
everything that you heard in this case; you’re going to
have to disregard the law because the evidence supports
wholeheartedly that this defendant went there to that gas
station to sell this victim weed. . . . And so to acquit this
man would mean that you would have to violate your oath
as jurors in following the law and looking at the facts in a
fair and impartial manner. Because if you do that, the
only reasonable conclusion is that he’s guilty of all counts.
(Emphasis supplied.) Appellant contends that this statement was
improper and prejudicial and violated his rights to due process and
a fair trial. However, as Appellant concedes, he failed to object to
this statement at trial. Accordingly, Appellant has waived appellate
review of this alleged error. See Gates v. State, 298 Ga. 324, 328 (4)
(78 SE2d 772) (2016) (the failure to object during closing arguments
waives appellate review – even for plain error – of alleged errors
therein). See also Keller v. State, 308 Ga. 492, 497 (2) (a) (842 SE2d
22) (2020) (noting that this Court has declined to extend plain error
review outside a narrow range of issues absent statutory authority).
3. Appellant contends that the trial court erred by allowing the
State to introduce an in-life photograph of Davis while declining to
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allow the defense to offer its own in-life photographs of Davis.
During Stodghill’s testimony, the State offered into evidence a
photograph of Davis wearing a graduation cap and gown and holding
a diploma, which the trial court admitted over the defense’s
relevancy objection. Appellant’s trial counsel then sought to offer
five images, apparently from a social media feed, depicting Davis
holding cash and a handgun and flashing what could be
characterized as gang signs. Counsel stated that he was offering
these images “as an in-life photo of the deceased” but stated further
that, “anticipating the State’s argument that [they] go to character,”
that objection should fail because “that’s a door that the State has
already opened” by offering the graduation photograph. The State
objected, and the trial court declined to admit the images, finding
that, to the extent they were offered as in-life photographs, they
were cumulative of the State’s in-life photograph, and to the extent
they were offered as character evidence, they were unduly
prejudicial and did not satisfy the applicable requirements of the
12
Georgia Evidence Code, see OCGA §§ 24-4-404 (a)2 and 24-4-405.3
Later, after an exchange in which Stodghill testified that he and his
2 OCGA § 24-4-404 (a) provides:
(a) Evidence of a person’s character or a trait of character shall not
be admissible for the purpose of proving action in conformity
therewith on a particular occasion, except for:
(1) Evidence of a pertinent trait of character offered by an accused
or by the prosecution to rebut the same; or if evidence of a trait of
character of the alleged victim of the crime is offered by an accused
and admitted under paragraph (2) of this subsection, evidence of
the same trait of character of the accused offered by the
prosecution;
(2) Subject to the limitations imposed by Code Section 24-4-412,
evidence of a pertinent trait of character of the alleged victim of
the crime offered by an accused or by the prosecution to rebut the
same; or evidence of a character trait of peacefulness of the alleged
victim offered by the prosecution in a homicide case to rebut
evidence that the alleged victim was the first aggressor; or
(3) Evidence of the character of a witness, as provided in Code
Sections 24-6-607, 24-6-608, and 24-6-609.
3 OCGA § 24-4-405 provides:
(a) In all proceedings in which evidence of character or a trait of
character of a person is admissible, proof shall be made by
testimony as to reputation or by testimony in the form of an
opinion.
(b) In proceedings in which character or a trait of character of a
person is an essential element of a charge, claim, or defense or
when an accused testifies to his or her own character, proof may
also be made of specific instances of that person’s conduct. The
character of the accused, including specific instances of the
accused’s conduct, shall also be admissible in a presentencing
hearing subject to the provisions of Code Section 17-10-2.
(c) On cross-examination, inquiry shall be allowable into relevant
specific instances of conduct.
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friends carried guns only for their protection and not to rob people,
trial counsel again sought admission of the images. Pointing out
that the text shown on the social media feed used the term “jug” –
street slang for “robbery” – counsel argued that Stodghill “opened
the door” to admission of the images, which “completely
contradict[ed]” Stodghill’s testimony. The trial court, noting that
trial counsel had earlier conceded that the text on the images would
likely have to be redacted as lacking foundation, again ruled the
images inadmissible.
We have held generally that, in a murder case, “a photograph
of a victim in life may be relevant to prove an element of the corpus
delicti, that is, that the person alleged to have been killed is actually
dead.” Ragan v. State, 299 Ga. 828, 832 (3) (792 SE2d 342) (2016)
(punctuation omitted). We have also noted, however, that “certain
steps must be taken to ensure that the tenuous probative value of a
victim-while-in-life photograph is not subsumed by [its] substantial
prejudicial impact.” Id. In this regard, we have encouraged the
State to use photographs depicting the victim alone and to proffer
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them through witnesses other than the victim’s relatives. See
Lofton v. State, 309 Ga. 349, 355 (2) (b) (846 SE2d 57) (2020). Here,
the State followed these prescriptions, proffering its photograph of
Davis, pictured alone, through Stodghill, a non-family member.
Thus, to the extent Appellant now challenges the admission of the
State’s photograph, we see no abuse of discretion.
Appellant also contends, however, that because the photograph
of Davis wearing a cap and gown was essentially “good character”
evidence, he should have been allowed to offer his five images under
OCGA § 24-4-404 (a) (2). As an initial matter, we do not accept
Appellant’s characterization of the State’s photograph as “good
character” evidence; the mere indication of Davis’s graduation was
not offered or argued as evidence of any particular character trait,
and thus the photograph’s admission did not, as Appellant argues,
open the door to the admission of evidence of Davis’s alleged bad
character.
In addition, while it is true that evidence of a “pertinent trait”
of a victim’s character may be admissible under OCGA § 24-4-404
15
(a), Appellant never identified any particular character trait the
images were offered to establish. Moreover, “as a general rule,
character evidence of a victim is limited to reputation or opinion[.]”
Mohamud v. State, 297 Ga. 532, 536 (3) (773 SE2d 755) (2015). See
also OCGA § 24-4-405 (a). The images Appellant sought to admit
constitute neither reputation nor opinion evidence. And while
evidence of specific instances of conduct may be admissible under
OCGA § 24-4-405 (b) where the character trait sought to be proven
“is an essential element of a charge, claim, or defense,” id., Appellant
never argued at trial that these images were being offered for this
purpose, and they would not have been admissible on this basis in
any event. See Griffin v. State, 309 Ga. 860, 873 (5) (b) (849 SE2d
191) (2020) (a victim’s violent character is not an essential element
of a self-defense claim). Thus, the photographs were not in a form
that was admissible under OCGA § 24-4-405 (a) or (b), and the trial
court did not abuse its discretion in excluding them. 4
4We do not address – as Appellant raised below, but not on appeal –
whether the images might have been admissible as impeachment evidence.
16
4. Appellant also contends that his trial counsel rendered
constitutionally ineffective assistance in various respects. To
establish ineffective assistance, a defendant generally must show
both that his counsel’s performance was deficient and that this
deficient performance prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). Deficient performance requires a showing that counsel
discharged his responsibilities in an “objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” Thomas v. State, 303 Ga. 700, 702 (2) (814
SE2d 692) (2018) (citation and punctuation omitted). Prejudice is
shown by demonstrating “a reasonable probability[,] sufficient to
undermine confidence in the outcome[,] that, but for counsel’s
alleged unprofessional errors, the result of the proceeding would
have been different.” Miller v. State, 285 Ga. 285, 286 (676 SE2d
173) (2009) (citation and punctuation omitted). “If either Strickland
prong is not met, this Court need not examine the other prong.”
Palmer v. State, 303 Ga. 810, 816 (IV) (814 SE2d 718) (2018).
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(a) Appellant first contends that his trial counsel was
ineffective for failing to “properly introduce” Appellant’s in-life
photographs of Davis. Specifically, Appellant maintains that the
photographs would have been admitted if counsel had offered them
again after Appellant testified that Davis was the aggressor in their
encounter and thus presented prima facie evidence of self-defense.
However, as we have already held, the photographs were not
admissible as character evidence because they were neither
reputation nor opinion testimony and because they did not provide
proof of any element of Appellant’s self-defense claim so as to be
admissible under OCGA § 24-4-405 (b). This claim is therefore
meritless. See Coggins v. State, 275 Ga. 479, 481 (3) (569 SE2d 505)
(2002) (counsel’s failure to assert non-meritorious claim does not
constitute deficient performance).
(b) Appellant next contends that trial counsel was ineffective
for failing to investigate the criminal histories of the State’s
witnesses and, specifically, to discover that, at the time of trial,
Stodghill had charges pending against him in Fulton County for
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theft by receiving and misdemeanor tampering with evidence.
According to evidence presented at the motion for new trial hearing,
the latter charge alleged that Stodghill had removed a weapon from
the scene of a suicide. Appellant claims that evidence that Stodghill
may have previously removed a gun from a crime scene, because of
its similarity to Stodghill’s conduct at the crime scene here, would
have supported a finding that Davis was carrying a gun at the time
of the shooting and thus supported Appellant’s self-defense claim.
Appellant also claims that evidence of these pending charges would
have been useful in impeaching Stodghill generally.
Although it is true that evidence of pending charges may be
relevant to show a witness’s bias, Appellant has presented no
evidence that Stodghill had any agreement with the State as to his
pending charges or any reason to shade his testimony in favor of the
State. Because there is no evidence of any nexus between Stodghill’s
pending charges and his testimony at Appellant’s trial, Appellant
can show no prejudice from trial counsel’s failure to discover and
attempt to impeach Stodghill with evidence of the pending charges.
19
See Colzie v. State, 289 Ga. 120, 124 (3) (710 SE2d 115) (2011)
(where there was no evidence of any deal or hope of a deal between
witness and prosecution, counsel was not ineffective in failing to
impeach witness with evidence of pending charges). Similarly, given
that Stodghill admitted taking a gun from Davis’s body, there was
no prejudice in trial counsel’s failing to present evidence that he was
charged with doing so on another occasion. See Wesley v. State, 286
Ga. 355, 358 (3) (h) (689 SE2d 280) (2010) (counsel’s failure to
present cumulative evidence does not result in prejudice).
(c) Appellant contends that his trial counsel was ineffective for
failing to object in several instances during the State’s closing
argument. At the outset, we note that “[a] prosecutor is granted
wide latitude in the conduct of closing argument, . . . . [and] [w]ithin
that wide latitude, [he] may comment upon and draw deductions
from the evidence presented to the jury.” Gaston v. State, 307 Ga.
634, 640 (2) (b) (837 SE2d 808) (2020) (citation and punctuation
omitted). In addition, “[w]hether to object to a particular part of a
prosecutor’s closing argument is a tactical decision, and counsel’s
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decision not to make an objection must be patently unreasonable to
rise to the level of deficient performance.” Smith v. State, 296 Ga.
731, 735-736 (2) (b) (770 SE2d 610) (2015). Here, trial counsel
testified at the motion for new trial hearing that his general practice
was to refrain from objecting during closing arguments unless the
prosecutor’s transgressions were “egregious” or “repeated.”
(i) Appellant first points to counsel’s failure to object to the
prosecutor’s statement that he had “prosecuted enough drug dealers
to know” how dangerous drug transactions can be. Given that
Appellant himself testified that he was in the business of selling
marijuana, there was nothing improper about the prosecutor’s
reference to drug dealers, and because there is nothing surprising
about the assertion that drug transactions are dangerous, counsel
could have reasonably chosen not to object to the prosecutor’s
comment, even if it was objectionable. See Rich v. State, 307 Ga.
757, 762 (3) (838 SE2d 255) (2020) (attorney’s decision not to object
to isolated improper remark during closing may be “a valid exercise
of his or her professional judgment”).
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(ii) Appellant next points to counsel’s failure to object when
the prosecutor referred to Appellant as a “psychopath.” This
statement was made in direct response to trial counsel’s closing
argument, in which counsel had referred to Daniel as a “psychopath”
for “running to the gunfight” after hearing the first gunshots. At the
motion for new trial hearing, trial counsel testified that he did not
object to the prosecutor’s “psychopath” reference because he himself
had used that term first, and because he did not find the prosecutor’s
argument to be very effective. Counsel’s decision not to object in this
instance was reasonable and affords no basis for a finding of
deficient performance. See Jackson v. State, 281 Ga. 705, 708 (6)
(642 SE2d 656) (2007) (counsel’s decision not to object during closing
argument was a “matter[ ] of reasonable trial strategy” that did not
support an ineffectiveness claim).
(iii) Appellant next challenges counsel’s failure to object when
the prosecutor cited Appellant’s remark to Dixon about “weigh[ing]
that sh*t up” and argued that this was a reference to “weighing up”
marijuana. Given that Dixon responded to Appellant’s remark with
22
a reference to “sell[ing] weed,” and given the evidence that Appellant
was a drug dealer and had communicated with Davis about selling
marijuana on the night of the shooting, the prosecutor’s statement
represented a reasonable inference from the evidence. Trial counsel
was thus not deficient in failing to object in this instance. See
Arnold v. State, 309 Ga. 573, 577 (2) (a) (847 SE2d 358) (2020)
(where there was evidentiary basis for inference made during
closing argument, counsel’s failure to object did not give rise to
ineffectiveness claim).
(iv) Finally, Appellant contends that trial counsel was
ineffective in failing to object to the prosecutor’s statement that
acquitting Appellant would require the jurors to “violate [their]
oath.” See Division 2 above. Though made in the context of an
argument about the weight of the evidence, this remark comes
uncomfortably close to – and may well cross over – the boundaries
of permissible argument. See United States v. Young, 470 U. S. 1,
18 (IV) (105 SCt 1038, 84 LE2d 1) (1985) (stating that an exhortation
to the jury to “do its job” “has no place in the administration of
23
criminal justice”). However, in light of all the evidence presented
and the isolated nature of the remark, even assuming we were to
conclude that the remark was improper and that trial counsel’s
failure to object was objectively unreasonable, we cannot say that,
had trial counsel objected, there is a reasonable probability that the
result of Appellant’s trial would have been different. See
Richardson v. State, 304 Ga. 900, 902-903 (2) (b) (823 SE2d 321)
(2019) (while prosecutor’s remark during closing was “troubling,”
defendant could not demonstrate prejudice from counsel’s failure to
object). Accordingly, Appellant’s ineffectiveness claim in this regard
fails. 5
Judgment affirmed. All the Justices concur, except Colvin, J.,
not participating.
5We also conclude that any cumulative prejudice from the deficiencies
assumed in Division 4 (b) and (d) (iv) does not create a reasonable probability
that the result of the proceedings would have been different in the absence of
the deficiencies alleged. See Wilkins v. State, 308 Ga. 131, 141 (6) (839 SE2d
525) (2020).
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