Pritchett v. State ( 2022 )

In the Supreme Court of Georgia
Decided: October 4, 2022
S22A0809. PRITCHETT v. STATE.
MCMILLIAN, Justice.
Douglas Edwin Pritchett appeals his conviction for malice
murder in connection with the death of Richard Danley. 1 On appeal,
Pritchett asserts that the trial court erred in denying his amended
1 Danley was killed on July 8, 2017. On October 12, 2017, a Gilmer
County grand jury indicted Pritchett in connection with Danley’s death,
charging him with malice murder (Count 1); three counts of felony murder
(Count 2-4); aggravated assault with intent to murder (Count 5); aggravated
assault (Count 6); and aggravated battery (Count 7). Pritchett was tried before
a jury from February 27 to March 7, 2019, and convicted on all counts. Pritchett
was sentenced to life in prison for malice murder under Count 1; Counts 2-4
were vacated by operation of law; and Counts 5-7 were merged into Count 1 for
sentencing purposes. Pritchett’s trial counsel filed a timely motion for new
trial on March 29, 2019, which was amended through new counsel on January
21, 2020. Following a hearing, the trial court entered an order denying the
motion as amended on August 2, 2021. Pritchett filed a timely notice of appeal,
but the appeal was stricken from this Court’s docket and the case remanded to
the trial court for a determination as to whether Pritchett’s then-counsel would
be allowed to withdraw from the case. On remand, Pritchett’s counsel filed a
motion for withdrawal, which the trial court granted. New appellate counsel
was appointed, and this case was subsequently re-docketed to the April 2022
term of this Court and submitted for a decision on the briefs.
motion for new trial because (1) his conviction was based upon
insufficient evidence; (2) the trial court improperly admitted the
State’s evidence proffered under OCGA § 24-4-404 (b) (“Rule 404
(b)”); and (3) he received ineffective assistance of counsel. He also
asserts that he is entitled to a new trial based on the cumulative and
collective prejudice resulting from trial court error and the deficient
performance of his trial counsel. We disagree and affirm.
The parties stipulated at trial to the following facts. On July 8,
2017, Danley had been living with Pritchett in Pritchett’s home in
Gilmer County for approximately four to five months. And it was at
Pritchett’s home on July 8 that Pritchett shot Danley multiple times
with a .40-caliber Smith and Wesson handgun, killing him. The
parties also stipulated that a plastic “Mountain Lake Ice” bag (the
“ice bag”) was recovered from underneath Danley’s body.
Viewed in the light most favorable to the verdict, the evidence
at trial showed that Pritchett called 911 on the evening of July 8,
2017, around 5:35 p.m. to report “a home invasion shooting.” An
extended pause occurred after the operator asked Pritchett his
2
name, and then the line disconnected. The 911 operator attempted
to call Pritchett back three times before finally reaching him, about
four to five minutes later, on the fourth try. Pritchett told the
operator that Danley, whom he described as “an acquaintance,”
came at him with a knife and that Pritchett thought that he had
fired a few shots at Danley in the chest; then the line disconnected
again.
First responders and law enforcement officers were dispatched
to Pritchett’s home. When they arrived, they saw a car sitting in the
driveway and Pritchett on the porch of the home, talking on the
phone. Pritchett, who had an injury to his nose and blood on his
clothing, told the police that the victim was inside his home.
When the first officer entered Pritchett’s home, he saw a silver
pistol and a knife near the threshold of the front door. Danley was
lying on the floor near the kitchen and dining area of the home about
ten or twelve feet from the front door. The officer said that it was
“very evident” that Danley was dead and his body was lying in a pool
of blood.
3
During a later search, investigators recovered a loaded gun on
the front porch near the front door and a knife on the floor just inside
the threshold. No blood was located in the vicinity of the knife, and
there was no blood trail leading from the knife to the body. The
majority of the cartridge casings were found inside the house in the
kitchen, but police also found a number of spent shell casings and
blood droplets on the front porch. Police discovered the empty ice
bag under Danley’s body clutched in his left hand,2 with a spent shell
casing between his legs. The projectiles recovered from the scene
and from the victim’s body, along with the spent casings collected at
the scene, were determined to have been fired from the gun found
on the front porch. Later testing also showed Danley’s DNA on the
knife and the gun, along with DNA profiles from other unidentified
individuals. Pritchett’s DNA was not found on the weapons.
Pritchett told the police at the scene that he and Danley had
gotten into a physical altercation over $300 that Danley claimed
Pritchett owed him. Pritchett said that following the fight, Danley
2 Earlier, police had observed ice in the blender.
4
left the home and returned with a knife and attacked Pritchett, who
then shot Danley in self-defense. Gunshot residue was found on
Pritchett’s hands, but his hands showed no signs that he had been
involved in a physical fight. Danley’s hands also showed no signs
that he had been fighting. A later examination of Pritchett’s phone
records showed that he called a friend before calling 911 to report
the shooting. The friend testified at trial that Pritchett told him that
a man had come into his home while Pritchett was asleep and
attacked him with “a shovel or something.” Pritchett told the friend
that “he woke up on the floor and that boy was beating on him and
he got his hands on a gun and shot him.” No shovel was found at the
scene.
Elaina Coffee, a GBI special agent and crime scene specialist,
testifying as an expert for the State, opined that the evidence found
at the crime scene was not consistent with Danley being shot as he
entered the home with a knife, as no knife was found near the body.
Rather, Coffee stated the evidence was consistent with Danley
already being in the home when he was shot. Agent Coffee also
5
testified that the evidence was not consistent with Danley’s being on
top of Pritchett beating him when the shots were fired.
Danley was pronounced dead at the scene, and a later autopsy
revealed that there were six gunshot wounds to his body, three of
which were fired into his back. The medical examiner determined
from her examination of Danley’s body that the cause of his death
was multiple gunshot wounds.
The State also presented Rule 404 (b) evidence from four
witnesses, and that evidence will be discussed further in Division 2
below.
1. Pritchett asserts that the evidence at trial was insufficient
to support his conviction because the State did not disprove that
Pritchett was acting in self-defense when he shot Danley.
When considering whether the evidence at trial was sufficient
to support a conviction as a matter of constitutional due process, the
proper standard of review is whether the evidence, when viewed in
the light most favorable to the jury’s verdict, would have allowed a
rational trier of fact to find the defendant guilty beyond a reasonable
6
doubt of the crime for which he was convicted. See Jackson v.
Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979). And “[w]e leave to the jury the resolution of conflicts or
inconsistencies in the evidence, credibility of witnesses, and
reasonable inferences to be derived from the facts, and we do not
reweigh the evidence.” Harris v. State, 313 Ga. 225, 229 (2) (869
SE2d 461) (2022) (citations and punctuation omitted). In this case,
not only did the State bear the burden of proving beyond a
reasonable doubt that Pritchett was guilty of the crimes charged
against him, it also had the burden of disproving Pritchett’s claim of
justification based on self-defense beyond a reasonable doubt. See
McCray v. State, 301 Ga. 241, 243 (1) (799 SE2d 206) (2017) (where
a defendant effectively raises an affirmative defense of justification
or self-defense, the State has the burden of disproving that defense
beyond a reasonable doubt); Mosby v. State, 300 Ga. 450, 451 (1) (796
SE2d 277) (2017) (same). Whether the State met its burden in this
case was a question for the jury. See Blair v. State, 273 Ga. 668, 668
(1) (543 SE2d 685) (2001) (“It was a question for the jury whether
7
the circumstances justified [defendant’s] use of a deadly weapon
against the victim.”); Akins v. State, 269 Ga. 838, 839 (1) (504 SE2d
196) (1998) (jury is to determine “the question whether the
circumstances of the confrontation between appellant and the victim
were such as to excite the fears of a reasonable person that he had
to use deadly force in order to prevent the use of deadly force against
him” (citation and punctuation omitted)).
Pritchett asserts that the State failed to disprove his claim of
self-defense as no independent witness observed what happened
that day and “no objective, non-speculative, relevant ballistics
evidence, DNA evidence, fingerprint evidence, or other scientific
evidence” was presented that directly countermanded Pritchett’s
claimed defense. However, it is well settled that, “[a]lthough the
State is required to prove its case with competent evidence, there is
no requirement that it prove its case with any particular sort of
evidence.” Jackson v. State, 307 Ga. 770, 772 (838 SE2d 246) (2020)
(citation and punctuation omitted). And contrary to Pritchett’s
argument, the State presented evidence at trial that authorized the
8
jury to reject Pritchett’s claim of self-defense.
For example, Pritchett told conflicting stories about what
occurred, and these stories were also inconsistent with the physical
evidence. Pritchett told police that Danley first left Pritchett’s home
after the two men had fought over money, resulting in the injuries
to Pritchett’s nose, and that after Danley later returned with a knife,
Pritchett then shot Danley in self-defense. However, the evidence
showed that neither Danley nor Pritchett had injuries to their hands
consistent with having been in a fight. Moreover, the knife was
found ten to twelve feet from Danley’s body, and there was no blood
trail leading from the knife to the body to suggest that Danley
somehow moved away from knife after he was shot. Additionally,
three of the multiple gunshots inflicted on Danley by Pritchett
entered through Danley’s back.
In another version of the events, Pritchett told a friend that he
was asleep when Danley attacked him with a shovel, so Pritchett
shot him, but no shovel was found at the scene. And when Danley’s
body was moved, police discovered that he was clutching the empty
9
ice bag, not a knife or a shovel. Agent Coffee also gave her expert
opinion that her analysis of the crime scene was not consistent with
either of Pritchett’s versions of events.
This and other evidence at trial was sufficient to authorize the
jury to find beyond a reasonable doubt that Pritchett did not act in
self-defense and was not otherwise justified when he shot Danley.
See Slaughter v. State, 278 Ga. 896, 897 (608 SE2d 227) (2005)
(evidence sufficient to enable jury to find beyond a reasonable doubt
that defendant was not acting in self-defense when he shot the
victim and that he was guilty of malice murder); Clark v. State, 271
Ga. 27, 29 (1) (518 SE2d 117) (1999) (Where defendant’s various
versions of events changed materially with each iteration, “[t]he jury
was entitled to accept the circumstantial evidence of an intentional
act, and reject the claim that the shooting . . . was done in self[-
]defense.”). Thus, we conclude that the evidence was sufficient to
sustain the guilty verdict of murder as a matter of constitutional due
10
process. See Jackson, 443 U.S. at 319 (III) (B).3
2. Pritchett next argues that the trial court erred in admitting
the State’s evidence of three prior incidents involving Pritchett to
show plan, preparation, knowledge, and motive under Rule 404 (b).
Pritchett asserts that because all of the Rule 404 (b) evidence
involved incidents that took place after he had been drinking, the
incidents only showed that Pritchett had the propensity to be
abusive, violent, and angry after drinking. Although we agree that
the other-acts evidence should not have been admitted, we conclude
that the admission of this evidence was harmless error.
Prior to trial, the State filed a motion to present Rule 404 (b)
evidence of several prior incidents involving Pritchett: (1) a 2010
arrest and indictment on an aggravated assault charge; (2) an arrest
for disorderly conduct in May 2017; and (3) a series of incidents
3 Pritchett also argues that the trial court abused its discretion when it
declined to grant a new trial pursuant to the “general grounds” set forth in
OCGA §§ 5-5-20 and 5-5-21. However, “an appellate court does not review the
merits of the general grounds. Instead, this Court’s review of the trial court’s
ruling on the general grounds is limited to sufficiency of the evidence under
Jackson v. Virginia.” Ward v. State, 313 Ga. 265, 268 (2) n.5 (869 SE2d 470)
(2022) (citation and punctuation omitted; emphasis in original).
11
involving Pritchett’s girlfriend, which took place within months
before Danley’s death. Following several hearings on the Rule 404
(b) motion, the trial court ruled that the evidence would be
admissible and later entered a written order admitting the evidence
“to show motive (to use force, the threat of force and violence, to
control a domestic partner and individuals with whom the
Defendant is in a relationship), plan (to control disclosure of and
[the] nature of information, controlling the narrative and altering
facts), and knowledge (the previous firing of a weapon inside of his
home and towards another person).”
At trial, the State presented the Rule 404 (b) evidence through
its first four witnesses, and the trial court gave an instruction
limiting the jury’s use of the evidence both before these witnesses
testified and in the court’s final charge to the jury. These charges
instructed the jurors to consider the evidence “for the limited
purpose for which it is admitted, showing and illustrating, if it does,
the accused’s preparation or plan, knowledge or motive” and “not for
any other purpose” or “consideration.”
12
The first incident was presented through a crime scene
investigator for the Gilmer County Sheriff’s Office, who testified
that in December 2010, police were called to Pritchett’s home to
investigate reports of an illegal liquor operation.
When the investigator arrived at the scene, he observed a rifle
sticking up out of the snow and various spent cartridges and shells
on the front porch. The interior of the home was in “complete
disarray,” with things thrown everywhere and bullet holes in the
ceiling. The investigator said that it appeared from the scene that
Pritchett and another person had been there drinking when a fight
broke out. Pritchett, who was at the scene, admitted that he had
been in a fight. He told the investigator that he had awakened with
someone hitting him, so he began to fight back, and the fight got
worse. Pritchett said that he might have fired a shot or two at the
other man, and he hoped that he had “hit the SOB.”4 Photographs of
4 Although the State presented evidence that Pritchett was charged with
aggravated assault in connection with this incident, the investigator testified
that he did not know the disposition of the charge because he was never asked
to go to court about the incident.
13
Pritchett from the incident were also admitted in which Pritchett
appeared injured, and the investigator testified that the injuries
were inflicted by someone else.
Regarding the second incident, the State presented evidence
through a city of Rome police officer that Pritchett was arrested for
disorderly conduct on May 12, 2017, less than two months before
Danley’s death. The officer testified that he was called to a house in
Rome after police received a report that Pritchett was threatening
someone. Bodycam video of the incident was played for the jury,
which showed the officer speaking with those at the scene, placing
Pritchett under arrest for disorderly conduct after he used profanity
in front of children, and putting Pritchett in the backseat of a patrol
car. As the officer drove Pritchett away from the scene, a camera on
the dashboard was filming through the patrol car’s windshield,
while another camera was filming Pritchett in the backseat. These
video recordings were also played for the jury. The dashcam footage
shows the officer driving slowly though a residential neighborhood,
with no evidence of abrupt or hard braking, when an audible bump
14
can be heard on the video, followed by Pritchett’s announcement
that the officer failed to buckle him into a seat belt and then
slammed on the brakes, causing Pritchett to hit his head. However,
the backseat video recording from the same timeframe shows
Pritchett first look in the direction of the front seat, then throw
himself at the partition between the front and back seats of the
patrol car. At that point, Pritchett claims, as also heard on the
dashcam video, that the officer had slammed on his brakes, causing
Pritchett injury. The officer admitted at trial that he initially failed
to put Pritchett in a seat belt, but he said that he never slammed on
his brakes.5
As for the third incident, the State presented testimony from
Pritchett’s former girlfriend and her sister regarding a series of
altercations that occurred some months before Danley’s death when
5 Contrary to Pritchett’s argument that the evidence was introduced to
show he had the propensity to become violent or abusive when drinking, the
video recording of this incident did not show any acts of violence against others
by Pritchett, despite evidence that Pritchett had been drinking that day.
Although Pritchett was uncooperative and verbally challenged the officer when
he attempted to perform field sobriety tests to determine whether Pritchett
could legally drive himself from the scene, Pritchett was not violent or
physically abusive toward anyone during this incident.
15
the two women were on vacation with Pritchett in South Carolina.
Pritchett’s girlfriend testified that in one incident, Pritchett, who
had been drinking, hit the girlfriend in the head, causing her to fall
into the television in their motel room. The girlfriend also testified
that on the same vacation he elbowed her in the chest when she and
her sister got back in the car after shopping because Pritchett
thought they had taken too long. The girlfriend’s sister testified that
during the shopping incident, she saw Pritchett hitting the
girlfriend over and over with his fist. On that trip, the sister also
saw Pritchett hit the girlfriend in the back of a head with a duffel
bag as she lay in the bed because she would not get up when he
asked.
(a) Rule 404 (b) provides that “[e]vidence of other crimes,
wrongs, or acts shall not be admissible to prove the character of a
person in order to show action in conformity therewith[,]” but it may
“be admissible for other purposes, including, but not limited to, proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” See also State v. Jones,
16
297 Ga. 156, 159 (2) (773 SE2d 170) (2015) (“Rule 404 (b) explicitly
recognizes the relevance of other acts evidence offered for a
permissible purpose and, at the same time, prohibits the admission
of such evidence when it is offered solely for the impermissible
purpose of showing a defendant's bad character or propensity to
commit a crime.” (emphasis in original)). Therefore, the rule “is, on
its face, an evidentiary rule of inclusion which contains a non-
exhaustive list of purposes other than bad character for which other
acts evidence is deemed relevant and may be properly offered into
evidence.” Id. However, even evidence offered for a proper purpose
under Rule 404 (b) may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence.” OCGA § 24-4-403 (“Rule 403”).
Accordingly, Georgia courts employ a three-part test to
determine if the evidence of a defendant’s other acts is admissible,
which requires that the proponent of the evidence show:
17
(1) that the evidence is relevant to an issue in the case
other than the defendant's character; (2) that the
probative value of the evidence is not substantially
outweighed by its undue prejudice; and (3) that there is
sufficient proof for a jury to find by a preponderance of the
evidence that the defendant committed the other act.
Strong v. State, 309 Ga. 295, 300 (2) (845 SE2d 653) (2020). See also
Olds v. State, 299 Ga. 65, 69-70 (2) (786 SE2d 633) (2016). On appeal,
we review the trial court’s decision to admit evidence under Rule 404
(b) for an abuse of discretion. See Kirby v. State, 304 Ga. 472, 479 (4)
(819 SE2d 468) (2018).
(b) The State introduced evidence of the 2010 arrest and
indictment for aggravated assault and the 2017 arrest for disorderly
conduct to support the argument that Pritchett had the preparation
or plan to manufacture his claims of justification and self-defense in
connection with Danley’s death and stage the crime scene to support
this fabricated defense.
“Relevant evidence” is defined under OCGA § 24-4-401 as
“evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable
18
or less probable than it would be without the evidence.” “Rule 404
(b) does not define ‘plan’ or otherwise set limits on its scope.” Morrell
v. State, 313 Ga. 247, 256-57 (1) (869 SE2d 447) (2022) (citations and
punctuation omitted). In prior cases addressing the proper use of
Rule 404 (b) evidence to show plan or preparation in connection with
a defendant’s participation in the crimes charged, this Court has
applied federal case law to recognize “two general categories of ‘plan’
evidence under Rule 404 (b): the other-acts evidence shows the
planning of or preparation for the charged offense, or it tends to
prove that the defendant employed a ‘common scheme’ to commit a
series of similar crimes.” 6 Id. With respect to the “common scheme”
method of proving plan, we have explained that “[t]his approach
blends the purpose of plan with the purpose of identity – showing
that a distinctive plan was used tends to prove that the same person
executed both plans.” Heard v. State, 309 Ga. 76, 87 (844 SE2d 791)
6 “Because each of these Georgia evidence rules is modeled on its
counterpart in the Federal Rules of Evidence, we may look to federal appellate
precedents interpreting the pertinent federal rule for guidance in applying the
state provision.” Harris v. State, 314 Ga. 238, 264 (3) (a) (875 SE2d 659) (2022).
19
(2020). And when other-acts evidence is admitted to prove identity,
it “must satisfy a particularly stringent analysis.” Id. at 88 (citation
and punctuation omitted). “The physical similarity must be such
that it marks the offenses as the handiwork of the accused. The
extrinsic act must be a ‘signature’ crime, and the defendant must
have used a modus operandi that is uniquely his.” Id. (citation and
punctuation omitted).
Neither incident fits within the definitions of preparation or
plan under Rule 404 (b). The other-acts evidence had nothing to do
with the planning of the charged offenses, nor were they part of a
“common scheme to commit a series of similar crimes.” Morrell, 313
Ga. at 257. For one thing, the 2010 incident occurred over six years
before the crimes charged in this case, and there is no evidence that
the 2010 acts were part of his plan to shoot Danley. See Heard, 309
Ga. at 87 (no evidence that defendant’s later acts in stealing a car
with children in it, abandoning the children, and later burning the
car was part of a plan to steal another vehicle, use it to drive to a
robbery, commit a murder, and later burn the vehicle).
20
Moreover, at trial, the State failed to show that the 2010
incident was part of a “common scheme to commit a series of similar
crimes.” Heard, 309 Ga. at 88. The 2010 incident and the crime here
shared some common elements – Pritchett claimed that he had been
awakened by someone beating him and they both occurred at
Pritchett’s home – but that is where the similarity ends. In the 2010
incident, the crime being investigated was an illegal liquor
operation, and it was during that investigation that the investigator
found Pritchett at home with it in disarray and bullet holes in the
ceiling. 7 It appears that it was only in the course of speaking with
the investigator that Pritchett admitted that he had been in a fight
and that he had shot at someone, which led to his arrest for
aggravated assault. At trial, the evidence was unclear about who the
victim in the 2010 incident was or his relationship with Pritchett or
any of the other circumstances of the fight and attempted shooting. 8
7 At the scene of Danley’s shooting, bullet holes were also found in the
ceiling, but the record is not clear whether these bullet holes were the same
ones observed in 2010.
8 We note that the purported victim in the 2010 incident was called to
21
Thus, we fail to see how a previous claim that Pritchett perhaps had
been a victim of an attack under unknown circumstances made it
more probable that, years later, Pritchett planned the story that he
was the victim in an unprovoked attack by Danley. See Heard, 309
Ga. at 90 (“Because the State did not establish that the features of
the charged crimes and the later crimes, viewed individually or as a
whole, marked those crimes as the unique ‘signature’ of the same
perpetrator, the trial court abused its discretion by admitting
evidence of those acts to show a distinctive plan and
identity.”);United States v. LeCompte, 99 F3d 274, 278 (8th Cir.
1996) (prior sexual abuse committed against different victim eight
to ten years prior did not establish a “plan” because the evidence was
“relevant to ‘plan’ or ‘preparation’ only insofar as it tends to prove a
propensity to commit crimes, which Rule 404 (b) prohibits”).
While the 2017 incident occurred closer in time, it involved a
dissimilar disorderly conduct arrest for using profanity in front of
testify at one of the Rule 404 (b) hearings, but he asserted his Fifth
Amendment right against self-incrimination.
22
children and the staging of an injury in the backseat of a police car;
thus, this incident also is not relevant to the planning of the charged
offenses, nor was it part of a “common scheme to commit a series of
similar crimes.” Morrell, 313 Ga. at 257. Although the State argued
in closing that the police car video showed that Pritchett was willing
to injure himself to control the narrative and that he may have
injured his own nose to support his claim of self-defense, that
argument essentially is that Pritchett had a propensity to make up
injuries to get out of situations, but not that his actions in the back
of the police car showed how Pritchett planned to shoot Danley and
claim self-defense. Thus, we conclude that the trial court erred in
admitting the 2010 and 2017 other-acts evidence to show plan or
preparation.
The trial court also admitted the evidence of the 2010 incident
at Pritchett’s home to support that Pritchett had knowledge about
how to shoot at someone inside a house. But, “knowledge” under
Rule 404 (b) refers to “a special skill like safecracking, bomb-
making, or document forgery or to specific knowledge based on past
23
experience[.]” Rouzan v. State, 308 Ga. 894, 899 (2) (843 SE2d 814)
(2020). See also Harris v. State, 314 Ga. 238, 266 (3) (c) (875 SE2d
659) (2022) (“Appellant’s sexual activities gave no indication that he
had any knowledge related to how to kill a child by leaving the child
in a hot vehicle.”). The 2010 incident provided no specialized
knowledge to Pritchett about how to shoot someone inside a house,
nor does it support that Pritchett had any “specific knowledge” based
on the experience about how to shoot someone inside a house, so the
trial court also erred in admitting the 2010 other-acts evidence on
this basis. See Rouzan, 308 Ga. at 899 (2).
With respect to the incidents involving Pritchett’s girlfriend,
the State proffered the evidence to show that Pritchett had the
motive “to use violence to control anyone around him,” and, in its
written order, the trial court admitted the evidence for the purpose
of showing a motive to use force, or the threat of force and violence,
“to control a domestic partner and individuals with whom [Pritchett]
was in a relationship,” based on a finding that, as Pritchett’s
roommate, Danley “could be considered a domestic partner pursuant
24
to the statutes.”
“Motive is the reason that nudges the will and prods the mind
to indulge the criminal intent.” Kirby v. State, 304 Ga. 472, 486 (4)
(b) (819 SE2d 468) (2018). “To properly show motive, the extrinsic
evidence must be logically relevant and necessary to prove
something other than the accused’s propensity to commit the crime
charged.” Strong, 309 Ga. at 312 (d) (2). “To rule otherwise would
make all prior robberies admissible in any robbery case, all prior
murders admissible in any murder case, and so on.” Kirby, 304 Ga.
at 487.
Here, the State presented little evidence of Pritchett’s motive
for shooting Danley, but it argued in closing that Pritchett shot
Danley because Pritchett “was aggravated with him” or in
retaliation for being punched in the nose, even though the State
alternatively argued that Pritchett punched himself in the nose to
stage the scene. The State did not argue that Pritchett shot Danley
to control him, so it is difficult to discern how Pritchett’s violence
towards his girlfriend while attempting to control her was relevant.
25
That makes this case different from Smart v. State, 299 Ga. 414,
418-19 (2) (b) (788 SE2d 442) (2016), upon which the State relies.
There, we determined that the testimony of a defendant’s ex-wife
regarding defendant’s acts of violence against her was relevant to
show why the defendant might have used violence against his
current wife. And we held that the testimony was admissible in his
trial for the murder of his current wife because it “demonstrated that
the violence was a mechanism for control of his intimate partners”
and there was very little evidence to show why defendant “lashed
out at his wife.”
Moreover, even if we assume, without deciding, that the trial
court was correct in characterizing Danley as a “domestic partner”
and in a somewhat similar relationship to Pritchett as his girlfriend,
the trial court admitted the evidence to support that Pritchett
committed violent actions against those with whom he had a
relationship to control them. This stated basis goes to propensity
and is not a proper purpose to admit this evidence. See Strong, 309
Ga. at 312 (d) (2) (concluding that the State’s argument that Rule
26
404 (b) evidence illustrated defendant’s motive “to control other
people with violence. . . . is a classic improper propensity argument,
focusing on [the defendant’s] violent character” (citation and
punctuation omitted)); Kirby, 304 Ga. at 487 (4) (b) (holding that the
State’s proffer of other-acts evidence showing the defendant’s
“‘inclination’ to use violence to obtain money and sex . . . is a classic
improper propensity argument, . . . identifying his motive to act in
far too generic a fashion”). Thus, we conclude that the trial court
erred in admitting this other-acts evidence against Pritchett.
(c) However, “[e]videntiary errors require reversal only if they
harm a defendant’s substantial rights.” Williams v. State, 313 Ga.
443, 448 (1) (870 SE2d 397) (2022) (citation and punctuation
omitted). See also OCGA § 24-1-103 (a) (“Error shall not be
predicated upon a ruling which admits or excludes evidence unless
a substantial right of the party is affected.”). “The test for
determining nonconstitutional harmless error is whether it is highly
probable that the error did not contribute to the verdict.” Kirby, 304
Ga. at 478 (3) (c) (citation and punctuation omitted). And in making
27
that determination, “we review the record de novo and weigh the
evidence as we would expect reasonable jurors to have done so.”
Sams v. State, 314 Ga. 306, 313 (3) (875 SE2d 757) (2022) (citation
and punctuation omitted).
Here, the evidence supporting Pritchett’s commission of the
murder and undermining his claim of self-defense was substantial.
It is undisputed that Pritchett shot Danley, and the only question
was whether Pritchett shot in self-defense. The State’s expert
testified that the evidence at the crime scene did not support
Pritchett’s versions of events, and the jury was presented with
testimony describing, and photographs showing, the evidence upon
which the expert based her opinion. The jury also had reason to be
skeptical of Pritchett’s description of what happened because
Pritchett told his friend one version of events (Danley attacked
Pritchett with a shovel while Pritchett was asleep) shortly before he
gave the police a different version of what had occurred (that Danley
came at him with a knife after the two had fought over money). The
first version of events was undercut by the absence of a shovel at the
28
scene. Likewise, the version Pritchett gave police was contradicted
by the evidence at the scene. Pritchett never claimed that there was
a struggle after Danley retrieved the knife;9 rather, he said he shot
Danley as he approached with the knife, and his counsel argued that
the shooting occurred in the “short enclosed area” where Danley’s
body was found. Yet the knife with Danley’s DNA on it was found
ten feet away from Danley, who instead had the ice bag clutched in
his hand, and there was melting ice in the blender suggesting that
Danley was in the process of making something in the blender when
he was shot. Also, although Pritchett had injuries to his nose,
neither he nor Danley had any injuries to their hands consistent
with the two having been in a fight.
On the other hand, the other-acts evidence had little bearing
on the issues in the case. The State’s theory that Pritchett staged
the scene was amply supported by the physical evidence and
9 In fact, his counsel conceded in his closing argument that there had
never been “a fight” between the two men and Pritchett never “got any blows
in.” Rather, he argued that the evidence showed only that Danley punched
Pritchett in the nose.
29
Pritchett’s inconsistent statements and conduct after the crimes;
whether Pritchett had knowledge about how to shoot at someone
inside a house was not seriously contested; and the State was not
required to show motive to prove the crimes. See Romer v. State, 293
Ga. 339, 341 (745 SE2d 637) (2013) (explaining that motive is not an
essential element of a crime). In closing argument, the State did not
mention the other-acts evidence involving Pritchett’s girlfriend or
argue that it supported a motive for Danley’s shooting; nor did the
State refer to the 2010 aggravated assault arrest and indictment or
argue that it showed plan or preparation.10
Moreover, the trial court instructed the jury to consider this
other-acts evidence for preparation, plan, knowledge, or motive and
for no other purposes. We recognize the tension between the trial
court’s instructions to the jury to consider the other-acts evidence
for these purposes, and our conclusion that the evidence was not
relevant to these purposes. But we presume that the jury followed
10As explained above, the State only referred to the 2017 incident in the
back of the police car in its closing argument to support that Danley had
injured himself to fabricate his claim of self-defense.
30
those instructions and did not use the other-acts evidence
improperly to support that Pritchett had a propensity towards
violence. See Thomas v. State, __ Ga. ___, ___ (1) (2022 WL 4349298)
(Case No. S22A0798, decided Sept. 20, 2022) (in considering
whether admission of other-acts evidence was harmless, “we
presume that the jury followed the instructions not to consider it for
any other purpose”).
We recognize that the admission of this other-acts evidence
carried a risk of prejudice to Pritchett in no small part because the
State chose to emphasize the three prior incidents through the first
four witnesses that it called at trial. This case presents a close
question, but in light of the substantial evidence of Pritchett’s guilt
and after conducting a de novo review and weighing the evidence as
reasonable jurors would, we conclude that it is highly probable that
the error in admitting the other-acts evidence did not contribute to
the verdict finding Pritchett guilty of malice murder. See Thomas,
__ Ga. at __ (1) (2022 WL 4349298, at *5) (“In the light of the strong
independent evidence of [the defendant’s] guilt and the trial court’s
31
thorough instructions limiting the jury’s use of the other-acts
evidence, we conclude that it is highly probable that any error in the
admission of the other-acts evidence did not contribute to the guilty
verdicts against [the defendant].”) (cleaned up). Thus, the admission
of this evidence provides no basis for reversal. See Moore v. State,
307 Ga. 290, 294 (2) (835 SE2d 610) (2019).
3. Pritchett further asserts that he received ineffective
assistance of counsel at trial.
In order to succeed on his claim of ineffective assistance,
[Pritchett] must prove both that his trial counsel’s
performance was deficient and that there is a reasonable
probability that the trial result would have been different
if not for the deficient performance. If an appellant fails
to meet his or her burden of proving either prong of the
[Strickland v. Washington] test, the reviewing court does
not have to examine the other prong. In reviewing the
trial court’s decision, we accept the trial court’s factual
findings and credibility determinations unless clearly
erroneous, but we independently apply the legal
principles to the facts.
Lyons v. State, 309 Ga. 15, 25 (8) (843 SE2d 825) (2020) (citation and
punctuation omitted). See also Strickland v. Washington, 466 U.S.
668 (104 SCt 2052, 80 LE2d 674) (1984).
32
(a) Pritchett contends that his trial counsel provided ineffective
assistance when he failed to object to improper opinion testimony
from GBI Special Agent Ryan Hilton, who led the investigation into
Danley’s death, but who was not qualified as an expert at trial.
Pritchett asserts that his trial counsel should have objected when
Special Agent Hilton gave alleged expert testimony regarding the
ice bag, Pritchett’s injuries, and blood evidence.
Under OCGA § 24-7-701 (a) (“Rule 701 (a)”), a lay witness may
testify “in the form of opinions or inferences that are rationally
based on the witness’s perception, helpful to a clear understanding
of the determination of a fact in issue, and not based on scientific,
technical, or other specialized knowledge.” Glenn v. State, 302 Ga.
276, 279-80 (II) (806 SE2d 564) (2017). Moreover, “lay witnesses may
draw on their professional experiences to guide their opinions
without necessarily being treated as expert witnesses.” Bullard v.
State, 307 Ga. 482, 492 (4) (837 SE2d 348) (2019) (citation and
punctuation omitted).
(i) The ice bag: Agent Hilton testified that when Danley’s body
33
was moved, investigators discovered the plastic ice bag he was
clutching in his left hand, which was collected and preserved as
evidence. The agent later examined the bag for defects, such as
tears, cuts, rips and holes, and discovered seven holes, one being the
top opening of the bag. Agent Hilton testified that one hole, which
measured approximately one to two centimeters, could be consistent
with a .40-caliber projectile entering the bag and that two smaller
holes, measuring “probably three to four millimeters,” could be
consistent with fragments from a .40-caliber projectile.
Nevertheless, the agent clarified that he could not say definitively
that a .40-caliber projectile caused the holes.
We conclude that the agent’s opinion that the holes in the bag
could have been consistent with a .40-caliber projectile “was
rationally based on inferences he formed from his review of the
evidence and his prior observations.” Harris v. State, 309 Ga. 599,
604 (2) (a) (847 SE2d 563) (2020) (holding that detective’s testimony
as to how victim was shot was admissible where it was based on
detectives own review of the evidence and his prior observations of
34
gunshot wounds). See also Thornton v. State, 307 Ga. 121, 128 (3) (c)
(834 SE2d 814) (2019) (detective’s opinion that appellant was the
only person who had been in a position to shoot victim was properly
admitted under Rule 701 (a)). And the agent emphasized that he
could only say that the holes were generally consistent with a .40-
caliber round, but could not state definitively that the holes were
caused by .40-caliber shells. Moreover, this evidence was helpful to
the jury in determining how the events surrounding Danley’s
shooting transpired. Accordingly, because this evidence would have
been admissible under Rule 701, Pritchett has not shown that his
counsel would have been successful in raising an objection to the
agent’s testimony as improper expert testimony, and his ineffective
assistance of counsel claim fails on this ground. See Hampton v.
State, 295 Ga. 665, 670 (2) (763 SE2d 467) (2014) (“[T]he failure to
make a meritless . . . objection does not provide a basis upon which
to find ineffective assistance of counsel.”).
(ii) Pritchett’s injuries: Agent Hilton testified that he
supervised the transport of Pritchett from the crime scene to the
35
police station, where the agent executed a warrant to gather
evidence from Pritchett’s person. Agent Hilton observed that
Pritchett had a “busted nose,” and as part of the execution of the
warrant, he took photographs of this injury, which were later
published to the jury at trial. In describing the injuries depicted in
the photographs at trial, Agent Hilton said that Pritchett had
“bruising of the bridge of the nose, starting in between the eyebrows
and going about to the midline section down toward the point of the
nose,” in the middle of which was an abrasion that had already
begun scabbing over. Agent Hilton testified that this injury could be
consistent with someone punching him in the nose but could have
also been caused in another manner. Agent Hilton further testified
that the injury did not appear consistent with multiple blows to the
face because there was only one area where the skin was missing or
broken, and the remainder of the bruising “looked fairly
symmetrical going down either side of the bridge of the nose,
consistent with one injury.”
Trial counsel testified at the hearing on the motion for new
36
trial that Agent Hilton’s testimony in this regard would not require
specialized medical training except, perhaps, for the opinion that the
injuries appeared to have been caused by one punch and not
multiple punches. Although trial counsel could not recall whether
the defense argued that he had been hit once or multiple times, he
said that “looking at it from two years back, my guess is . . . it was
consistent with what we were saying happened, so I didn’t care.”
And, in fact, the record reflects that trial counsel never argued that
there were multiple blows, stating in closing that Danley “popped
[Pritchett] in the nose and popped him good.”
To establish deficient performance by his trial counsel,
Pritchett must overcome a strong presumption that trial counsel's
conduct “falls within the broad range of reasonable professional
conduct” and demonstrate that his counsel “performed in an
objectively unreasonable way, considering all circumstances and in
the light of prevailing professional norms.” Smith v. State, 296 Ga.
731, 733 (2) (770 SE2d 610) (2015) (citation and punctuation
omitted). Moreover, “[t]rial tactics or strategy are almost never
37
adequate grounds for finding trial counsel ineffective unless they are
so patently unreasonable that no competent attorney would have
chosen them.” Watts v. State, 308 Ga. 455, 460 (2) (841 SE2d 686)
(2020) (citation and punctuation omitted). And “[t]he matter of when
and how to raise objections is generally a matter of trial strategy.”
Robinson v. State, 278 Ga. 31, 36 (3) (c) (597 SE2d 386) (2004)
(citation and punctuation omitted).
Here, Pritchett has failed to overcome the presumption that his
trial counsel’s decision not to object fell within the wide range of
reasonable professional conduct. Pritchett has made no effort to
argue or show that evidence that the injuries to his nose were caused
by single blow, as opposed to multiple blows, was inconsistent with,
or undercut, the defense’s strategy at trial. Accordingly, he has
failed to establish that his counsel’s performance was deficient in
failing to object to this evidence.
(iii) Blood evidence: Agent Hilton clarified that he was not an
expert on blood pattern analysis but he had some training in what
blood looks like and blood directionality. The agent testified that
38
Pritchett was wearing khaki shorts at the time of the shooting, and
he collected the shorts from Pritchett pursuant to a search warrant.
Pritchett asserts that his trial attorney should have objected when
Agent Hilton identified suspected blood drops on the shorts at trial,
which he said did not “have tails,” and therefore appeared to show
that “blood in liquid form hit the absorbent material traveling . . .
perpendicular to the surface.” He also contends that his trial counsel
should have objected during the State’s re-direct examination of
Agent Hilton, when he testified that as soon as someone is shot,
blood begins to come out of his body, so if Danley were shot where
the knife was found, the agent would have expected to see blood
there as well as where his body was located.
Trial counsel testified at the hearing on the motion for new
trial that Agent Hilton’s testimony on this point was information
that the average juror might possess from his or her own experience:
“Can the average juror say there’s splatter of blood, and that means
somebody got shot, sure.” He also testified that you would not
necessarily require an expert witness to testify that blood can show
39
directionality or where the blood would pool. Trial counsel further
testified that because Agent Hilton was testifying based on his
professional experience, he did not believe that this evidence was
objectionable.
We conclude that this testimony was admissible under Rule
701. To the extent that the cited testimony could be considered
opinion testimony, as opposed to Agent Hilton’s observations of the
shorts and the crime scene itself, we conclude that it was rationally
based on inferences he formed from his review of the evidence and
his prior observations of similar evidence and crime scenes. And the
testimony was helpful to the jury in determining where in Pritchett’s
house Danley was shot. See Harris, 309 Ga. at 604 (2) (a); Thornton,
307 Ga. at 128 (3) (c). Thus, trial counsel was not deficient for failing
to make a meritless objection. See Hampton, 295 Ga. at 670 (2).
(b) Pritchett also asserts that his trial counsel performed
deficiently in asking, during cross-examination of Special Agent
Hilton, for the agent’s opinion on what had happened between
Pritchett and Danley, as it elicited opinion testimony on the
40
ultimate issue in the case in violation of OCGA § 24-4-704 (“Rule
704”), and in failing to object to the agent’s answer to the question.
During cross-examination, Pritchett’s trial counsel asked
Agent Hilton whether he had formed an opinion “as to how this
occurred, the relative positions of the two parties when the shooting
occurred.” A further line of questioning ensued on whether Agent
Hilton could properly testify as to the State’s theory of the case. And
when the agent began his answer, he first replied, “[W]hat I believed
happened is, Mr. Pritchett got popped in the nose, got p****d off and
shot this dude.” Defense counsel then asked to withdraw the
question and objected to this testimony as non-responsive, but the
trial court denied the request and overruled the objection. Trial
counsel again objected when Agent Hilton testified that he
approached the case with “an open mind,” stating that the answer
was “comment, that is, not factual, and that is certainly not
responsive to my question,” but was again overruled. The trial court
allowed Agent Hilton to continue his testimony, during which he
reviewed the evidence presented at trial and expressed his opinion
41
on it. Agent Hilton also testified that he was somewhat familiar with
the prior 2010 incident involving Pritchett, noting that Pritchett
admitted shooting at the other man in that incident and that he
hoped he had hit him. When Agent Hilton began to testify as to what
he would say, as a use-of-force instructor, regarding the case at bar,
the trial court halted his testimony.
At the motion for new trial hearing, trial counsel testified that
he did not believe that his question was open-ended and that he was
just trying to establish the narrative of the investigation. 11 However,
when it became apparent that the question was being treated as
open-ended, he objected that Agent Hilton’s testimony was beyond
the scope of the question.
To the extent that Pritchett asserts that his trial counsel was
deficient in failing to object to this testimony, the record
11 Trial counsel’s testimony that he was seeking only limited information
is supported by the transcript. After the trial court stopped Agent Hilton’s
narrative response, trial counsel again stated that he never got an answer to
his original question as to where the State contended the parties were standing
when the shooting occurred and specifically asked Agent Hilton where the
State believed Danley was standing when he was shot.
42
demonstrated that his counsel raised two objections on the basis
that the agent’s answers were nonresponsive and improper
commentary, but the objections were overruled on each occasion.
Pritchett does not appeal the trial court’s decisions to overrule these
objections. Moreover, although Pritchett asserts that trial counsel
should have objected to Agent Hilton’s testimony regarding the
December 2010 incident as placing his character in issue, at the time
that the testimony was given, the trial court had already ruled that
the incident could come in under Rule 404 (b) as other-acts evidence.
Thus, Pritchett has not shown that his counsel’s decision not to
object was unreasonable or that it fell outside the wide range of
reasonable professional conduct.. And to the extent that Pritchett
asserts that the testimony was inadmissible under Rule 704 because
it addressed the ultimate issue, subsection (a) of that statute
provides that “testimony in the form of an opinion or inference
otherwise admissible shall not be objectionable because it embraces
an ultimate issue to be decided by the trier of fact.” Accordingly,
Pritchett has failed to demonstrate that his counsel performed
43
deficiently in failing to further object to the testimony.
Pritchett also asserts, however, that his trial counsel was
deficient in asking Agent Hilton the question in the first place
because it led to extensive opinion testimony as to the ultimate
issue. At the motion for new trial hearing, Pritchett’s trial counsel
testified that he asked the question in order to establish the
narrative of the State’s investigation and as originally asked, the
question addressed only Agent Hilton’s opinion as to where Pritchett
and Danley were standing when the shooting occurred. When Agent
Hilton began to testify in a narrative form about the evidence that
had been presented at trial, counsel objected to Agent Hilton’s
testimony as nonresponsive and improper commentary, but was
overruled on two occasions.
It is well settled that “[d]ecisions about what questions to ask
on cross-examination are quintessential trial strategy and will
rarely constitute ineffective assistance of counsel.” Snipes v. State,
309 Ga. 785, 794 (848 SE2d 417) (2020). And although counsel’s
question led to an unanticipated result, Pritchett has failed to
44
demonstrate that the decision to ask the question fell outside the
wide range of reasonable professional conduct. Pritchett asserts that
Agent Hilton’s testimony supported the State’s case and improperly
went to the ultimate issue, but
counsel’s reasonableness is evaluated in conjunction with
the attendant circumstances of the challenged conduct
with every effort made to eliminate the distorting effects
of hindsight. Thus, deficiency cannot be demonstrated by
merely arguing that there is another, or even a better,
way for counsel to have performed.
Richards v. State, 306 Ga. 779, 782 (2) (a) (833 SE2d 96) (2019)
(counsel’s decision to elicit hearsay testimony from police
investigator regarding witness statements that guided her
investigation, but which defendant claimed improperly bolstered the
State’s case, did not amount to deficient performance) (citations and
punctuation omitted). Under the circumstances, we cannot say that
Pritchett has established that his trial counsel’s performance was
deficient in this regard.
(c) Pritchett also asserts that his trial counsel rendered
deficient performance because he failed to object when the State
45
elicited testimony from Agent Coffee, its expert witness, that a scale
and a marijuana grinder were located in Pritchett’s kitchen.
Pritchett contends that this testimony amounted to improper
character evidence harmful to Pritchett.
However, Agent Coffee identified these objects during
questioning asking her to describe what was depicted in a long list
of photographs she took of the crime scene. The agent merely
identified each object one time when it appeared in a photograph she
took in the kitchen, which was used by both Danley and Pritchett,
and then moved on to the next photograph. No testimony was
presented as to whom these objects belonged (either Pritchett or
Danley), nor was any evidence presented as to how the scales in the
kitchen were used.
Under these circumstances, where the identification of these
objects was only in passing and not linked to Pritchett specifically,
the testimony did not amount to improper character evidence. See,
e.g., Goins v. State, 310 Ga. 199, 206-07 (5) (850 SE2d 68) (2020)
(Where “two comments about Appellant’s having been in prison
46
were brief and nonspecific, . . . such passing references . . . did not
place his character in evidence.” (citation and punctuation omitted)).
Thus, trial counsel was not deficient for failing to make a meritless
objection. See Hampton, 295 Ga. at 670 (2).
4. Pritchett further asserts that he is entitled to a new trial
based on the collective prejudice resulting from the trial court’s
errors and the “numerous instances” of ineffective assistance on the
part of his trial counsel, citing State v. Lane, 308 Ga. 10 (838 SE2d
808) (2020).
To establish cumulative error [Pritchett] must show that
at least two errors were committed in the course of the
trial[, and when] considered together along with the
entire record, the multiple errors so infected the jury’s
deliberation that they denied [him] a fundamentally fair
trial.
Id. at 21 (4) (citation and punctuation omitted).
But here, although we have determined that the trial court
committed errors in admitting the other-acts evidence under Rule
404 (b), we have considered them cumulatively and concluded that
it is highly probable that any error in admitting the other-acts
47
evidence did not contribute to the verdict finding Pritchett guilty of
malice murder. Thus, these errors could not have “so infected the
jury’s deliberation that they denied [Pritchett] a fundamentally fair
trial.” Lane, 308 Ga. at 21 (4). With respect to the multiple claims of
ineffective assistance of counsel, we have determined that Pritchett
has failed to carry his burden of showing deficient performance by
his trial counsel. Accordingly, Pritchett cannot show cumulative
prejudice in this case sufficient to warrant a new trial. See Scott v.
State, 309 Ga. 764, 771 (3) (d) (848 SE2d 448) (2020) (“Assessing
cumulative prejudice is necessary only when multiple errors have
been shown.”).
Judgment affirmed. All the Justices concur.
48