Patterson v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 30, 2022
S22A0413. PATTERSON v. THE STATE.
LAGRUA, Justice.
Appellant James Patterson was convicted of felony murder in
connection with the beating death of Jeffrey Burke. 1 In this appeal,
Appellant contends that: (1) he received constitutionally ineffective
assistance of counsel; (2) the trial court erred in permitting a witness
to be impeached under OCGA § 24-6-609 (“Rule 609”); and (3) a new
trial is warranted due to newly discovered evidence. For the reasons
1 Burke was beaten on June 17, 2018, and he died following
complications of his injuries on September 9, 2018. On December 18, 2018, a
Bibb County grand jury indicted Appellant for malice murder, felony murder,
and aggravated assault “by beating [Burke] with his hands and feet.” At a trial
from August 27 to 28, 2019, the jury found Appellant not guilty of malice
murder but guilty of the remaining counts. Appellant was sentenced to serve
life in prison for felony murder, and the aggravated assault count was merged
for sentencing purposes. Appellant filed a timely motion for new trial. After
holding two hearings in May 2021, the trial court denied the motion for new
trial. Appellant filed a timely notice of appeal, and the case was docketed to
this Court’s April 2022 term and submitted for a decision on the briefs.
1
explained below, we affirm.
1. The evidence at trial showed that on June 17, 2018,
Appellant’s mother and stepfather hosted a cookout attended by
Appellant and approximately 20 family members and friends.
Jeremiah Thomas drove Burke, Arthur Ross, and Frances Simmons
to the cookout in his truck.
According to Ross, after a few hours, Burke and Appellant
began arguing in the front yard about who was going to pay for the
alcohol. Simmons came out of the house with to-go plates, and Ross
asked Burke to take the to-go plates to Thomas’s truck because they
were preparing to leave the cookout. Simmons then returned inside.
Ross then witnessed Appellant hit Burke. Burke “spun around and
fell,” and Appellant and another man began “kicking him and
stomping him.” Burke was “l[y]ing down, flat on his face, on his
stomach, right there by [Thomas’s] truck, on the concrete.” Ross
testified that Appellant then “went back up towards the street and
c[a]me back down, had his pistol in his hand, and went to talking,
y’all get on away from here before I kill him and all that.” Burke
2
then sent someone to retrieve Thomas and Simmons from inside the
house.
In contrast to Ross’s testimony, Appellant’s three cousins—
Melissa Rozier-Fleming, Darrell Rozier, and Kevin Rozier—testified
that Burke stumbled down the stairs, fell forward, and hit Thomas’s
truck. They did not witness anyone assault Burke. Rozier-Fleming
and Kevin further testified that they did not see Appellant with a
gun that day.2
Simmons and Thomas testified that when they came outside,
they saw Burke lying on the ground and bleeding from his face.
Thomas asked Burke what happened, but Burke did not answer.
They helped Burke into Thomas’s truck. Ross called Burke’s wife,
Beverly Burke, but was unable to reach her. Ross eventually spoke
to Burke’s brother, Johnny Burke, who said to bring Burke home. At
Burke’s home, an ambulance was waiting, and it transported him to
the hospital. Beverly testified that she asked Ross, Thomas, and
Johnny how Burke was injured, and “they said that he fell.”
2 Darrell was not asked whether he witnessed Appellant with a gun.
3
Burke’s doctor at the hospital testified: “The report that I got
was that [Burke] had sustained significant facial and neck trauma.
They weren’t sure how. They thought, possibly, that he got hit by a
car, but there was really no clear indication of what had happened,
other than he was hurt.” The doctor further testified that Burke had
numerous injuries to his head, neck, and spine that were consistent
with both “being struck by an automobile” and “being kicked
repeatedly about the head and body.” Burke had three surgeries to
treat his spinal injuries, but his lower extremities were paralyzed.
Beverly testified that when she visited Burke in the hospital,
he told her: “He had fixed him a plate to take home and . . . somebody
hit him . . . came up behind him and hit him in the eye with a butt
of a gun and he fell to the ground.” He also said, “[T]wo or three
people [were] kicking him.”
A law enforcement officer reported to the hospital to take
Burke’s statement, and the encounter was recorded by the officer’s
body camera. The recording shows Burke lying in the hospital bed
and two male visitors sitting in chairs. The officer testified that one
4
of the visitors was Ross but did not name the other visitor. The
officer asked Burke what happened, and he stated that he put two
to-go plates in the truck, and “the next thing [he] kn[ew],” he was
“blacked out.” After Burke described his injuries, one of the visitors
in the room said something inaudible. Burke then stated that he
“can’t say how [the assailant] hit [him].” 3 Rather, he “t[hought] what
[the assailant] did–[the assailant] got mad [be]cause [the assailant]
wanted to bet [him] . . . wanted to bet on the shots of liquor,” and
Burke refused. Burke continued that “[the assailant] got mad” and
“was drinking a big old bottle of wine,” and Burke told the assailant
that he “[did not] want to bet.” The assailant then “knocked him out”
while he was putting the to-go plates in the truck. The officer
testified that a different law enforcement officer obtained the arrest
warrant for Appellant.
Johnny testified that the day after Burke’s assault, he saw
Appellant and asked, “Did you see what happened, what happened
3 On the recording, Burke only refers to the assailant as “he,” without
identifying him by name or otherwise.
5
to my brother?” Appellant responded, “Is that your brother?” When
Johnny stated, “Yeah, that’s my brother,” Appellant said, “Well, you
need to tell your brother to keep his damn mouth shut.”
Approximately two months after the assault, Burke was
released from the hospital in a wheelchair and neck brace and with
a catheter for urination. Burke’s doctor testified that the type of
paralysis that Burke had could result in a “neurogenic bladder”—
meaning the person lacks bladder control requiring the use of a
catheter for urination. The doctor further testified that the failure
to maintain a catheter could result in pyelonephritis also known as
a kidney infection. He testified that he believed the nurses provide
discharge instructions to patients on how to maintain the catheter
and observe it for signs of infection.
Beverly testified that she received training on how to empty
the catheter and clean it. She further testified that she cleaned the
catheter every time she emptied it and every time she gave Burke a
bath, so it was cleaned “at least . . . twice a day.”
Several weeks after Burke returned home, his daughter
6
discovered him slumped over, not moving. Beverly attempted CPR,
which was unsuccessful. She then called 911, but the EMTs were
unable to resuscitate Burke. Beverly testified that all of Burke’s
injuries and medical issues were a result of the June 2018 assault.
According to the medical examiner, Burke’s medical records
showed that he was a victim of a physical assault; he was diagnosed
with a traumatic rupture of the right eye, surrounding lacerations
of tears of the skin around this eye, skull fractures around this eye,
a spinal cord injury of the neck, and fractures of the first three
cervical vertebrae. She stated that Burke’s injuries were “very
localized, which would not be consistent with being struck by a
vehicle.” Additionally, when asked whether Burke’s injuries were
“consistent with . . . someone stumbl[ing] and hit[ting] their head on
a truck,” the medical examiner testified that she “would expect in
that case [that] there would be injuries at the site of impact, either
facial or skull injuries, but the severe injuries that involved, also,
the entirety of [Burke’s] cervical or neck vertebrae in the spinal cord
would not be consistent with it.” She testified that instead Burke’s
7
injuries were consistent with someone who had been repeatedly
kicked in the head and body.
The medical examiner also testified that Burke’s medical
records showed he had surgery to stabilize the cervical vertebrae
and to relieve pressure on the spinal cord due to “decreased
movement of the upper and lower extremities.” And she noted
during the autopsy that he had “evidence of surgical hardware
involving the cervical vertebrae or the neck vertebrae.” Additionally,
Burke’s catheter was in-place when he arrived at the medical
examiner’s office. The medical examiner testified that Burke’s
medical records showed that he had a “dysfunctioning bladder,”
meaning that his “bladder would not contract properly on its own in
order for him to urinate.” She found evidence of a bacterial infection
in both of Burke’s kidneys and his bladder, and there was evidence
of decreased kidney function. The medical examiner testified that
Burke’s cause of death was “complications of the acute
pyelonephritis,[4] due to the urinary retention, due to the spinal cord
4 The medical examiner testified that acute pyelonephritis is a bacterial
8
injury, which was due to an assault,” and that Burke’s paralysis
directly and materially contributed to the pyelonephritis because it
was the cause of the urinary retention.
2. Appellant contends he received constitutionally ineffective
assistance of counsel in multiple ways. To prevail on these claims,
Appellant must demonstrate that his trial counsel’s performance
was professionally deficient and that he was prejudiced by this
deficient performance. See Sullivan v. State, 308 Ga. 508, 510 (2)
(842 SE2d 5) (2020) (citing Strickland v. Washington, 466 U.S. 668,
687 (III) (104 SCt 2052, 80 LE2d 674) (1984)). To establish deficient
performance, Appellant must show that trial counsel performed his
duties in an objectively unreasonable way, considering all the
circumstances and in the light of prevailing professional norms. See
id. Establishing deficient performance
is no easy showing, as the law recognizes a strong
presumption that counsel performed reasonably, and
[Appellant] bears the burden of overcoming this
presumption. To carry this burden, he must show that no
reasonable lawyer would have done what his lawyer did,
or would have failed to do what his lawyer did not. In
infection of the kidneys.
9
particular, decisions regarding trial tactics and strategy
may form the basis for an ineffectiveness claim only if
they were so patently unreasonable that no competent
attorney would have followed such a course.
Vann v. State, 311 Ga. 301, 303 (2) (857 SE2d 677) (2021) (citations
and punctuation omitted).
To establish prejudice, Appellant must prove that there is a
reasonable probability that, but for his trial counsel’s deficiency, the
result of the trial would have been different. See Sullivan, 308 Ga.
at 510 (2). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. (citation and punctuation
omitted). “And, this burden is a heavy one.” Bates v. State, 313 Ga.
57, 62-63 (2) (867 SE2d 140) (2022) (citation and punctuation
omitted). “If an appellant fails to meet his or her burden of proving
either prong of the Strickland test, the reviewing court does not have
to examine the other prong.” Id. at 63 (2).
(a) Appellant contends his trial counsel was ineffective for
failing to argue proximate cause and for failing to request a jury
instruction on proximate cause and intervening cause.
10
Ineffectiveness claims must be raised and pursued at the earliest
practicable moment, which for a claim of ineffective assistance of
trial counsel is at the motion for new trial stage if the defendant is
no longer represented by the attorney who represented him at trial.
See Moore v. State, 311 Ga. 506, 513 (6) (858 SE2d 676) (2021).
Because Appellant did not do so here, as explained below, Appellant
forfeited this claim of ineffective assistance.
At the motion-for-new-trial hearing, Appellant, who was
represented by new counsel, asserted he was asking for a new trial
on the bases “outlined in [the] amended motion for new trial.”
Additionally, the parties agreed to file post-hearing briefs after
preparation of the motion-for-new-trial transcript. In the motion for
new trial, amended motion for new trial, supplemental brief in
support of the amended motion for new trial, and post-hearing brief
in support of the amended motion for new trial, Appellant identified
several claims of ineffective assistance of counsel; however, none of
these claims involved a contention that his trial counsel provided
ineffective assistance by failing to argue proximate cause to the jury
11
or by failing to request a jury instruction on proximate cause and
intervening cause.
Appellant directs us to some of the questions asked of trial
counsel at the motion-for-new-trial hearing, arguing that his claim
has been properly preserved based on appellate counsel’s
questioning. However, questioning during the motion-for-new-trial
hearing, by itself, is insufficient to amend a motion for new trial to
add a claim where the trial court did not rule on the claim. See Smith
v. State, 310 Ga. 790, 796 (4) (854 SE2d 721) (2021) (“[T]he trial
court’s failure to address the ineffectiveness claim in its ruling on
the motion meant that there was no implicit amendment [by the
questioning at the motion-for-new-trial hearing] and that there was
no ruling on the issue for this Court to review.” (citation and
punctuation omitted)). And in the order denying the motion for new
trial, the trial court addressed Appellant’s ineffectiveness claims,
but not an ineffectiveness claim concerning the failure to argue
proximate cause or failure to request a jury instruction on proximate
cause.
12
Accordingly, we conclude Appellant failed to raise this
ineffectiveness claim in his motion for new trial or at the motion-for-
new-trial hearing. Thus, Appellant forfeited this ineffectiveness
claim. See Elkins v. State, 306 Ga. 351, 361 (4) (a) (830 SE2d 217)
(2019) (an ineffectiveness claim must be raised in a motion for new
trial or at the motion-for-new-trial hearing or else it is waived when
the appellant is represented by new counsel at the motion-for-new-
trial stage).
(b) Appellant contends his trial counsel provided ineffective
assistance by failing to thoroughly cross-examine Beverly on any
cleaning instructions she was given regarding the catheter and her
method of cleaning the catheter. In its order denying Appellant’s
motion for new trial, the trial court found that the decision of
Appellant’s trial counsel “to take it easy on [Beverly] because he did
not want to be seen as attacking a sympathetic witness” was a
strategic decision and did not constitute ineffective assistance of
counsel. As explained below, we agree.
At the motion-for-new-trial hearing, Appellant’s trial counsel
13
acknowledged that he “treaded lightly with [Beverly] because of just
the sensitive nature of the trial” and “the strategy was to not come
across as a jerk [to] this widow.” Indeed, in his closing argument,
trial counsel stated, “I didn’t want to be a jerk and beat [Beverly] up
on the stand, but I think [Burke’s doctor] stated that the catheter
has to be properly cared for, otherwise, it could lead to that
particular illness.” Appellant’s trial counsel elicited testimony from
Burke’s doctor that the failure to maintain a catheter could lead to
a kidney infection.
As we have explained,
[t]rial tactics or strategy are almost never adequate
grounds for finding trial counsel ineffective unless they
are so patently unreasonable that no competent attorney
would have chosen them. More specifically, decisions
about what particular questions to ask on cross-
examination are quintessential trial strategy and will
rarely constitute ineffective assistance of counsel.
Watts v. State, 308 Ga. 455, 460 (2) (841 SE2d 686) (2020) (citation
and punctuation omitted). And “the degree to which an attorney
chooses to cross-examine witnesses and the manner in which to
attack their credibility fall within the ambit of trial tactics.”
14
Lawrence v. State, 274 Ga. 794, 795 (3) (560 SE2d 17) (2002) (citation
and punctuation omitted).
We cannot say that Appellant’s trial counsel’s decision to not
question Beverly further was patently unreasonable given that she
gave no indication that she failed to properly care for Burke’s
catheter and there was no evidence presented at trial or at the
motion-for-new-trial hearing that Beverly improperly cleaned the
catheter. See Johnson v. State, 310 Ga. 685, 692 (3) (853 SE2d 635)
(2021) (Appellant failed to show deficient performance under
Strickland where he “does not explain, and the record does not show,
how [the] cross-examination would have been particularly helpful to
him”). Accordingly, Appellant has failed to show deficient
performance, and this claim fails.
(c) Appellant contends his trial counsel was deficient for failing
to review discovery with him prior to trial. At the motion-for-new-
trial hearing, Appellant testified that his trial counsel reviewed the
police report with him, but did not review any other discovery. But
in its order denying Appellant’s motion for new trial, the trial court
15
noted that Appellant’s trial counsel “testified that he reviewed all
discovery with [Appellant], including the incident report, witness
statements, and the medical examiner’s report.” The trial court’s
finding is supported by the testimony of Appellant’s trial counsel at
the hearing. The trial court implicitly credited the testimony of
Appellant’s trial counsel over Appellant on this issue. See Anthony
v. State, 311 Ga. 293, 297 (3) (857 SE2d 682) (2021) (in the absence
of explicit credibility findings by the trial court, we presume implicit
findings were made supporting the trial court’s decision). And the
trial court was entitled to do so. See Miller v. State, 295 Ga. 769, 772
(2) (a) (i) (764 SE2d 135) (2014) (“The trial court was entitled to
believe counsel’s testimony he consulted with his client over
appellant’s testimony that he did not.” (citation and punctuation
omitted)).
Appellant has failed to demonstrate that counsel was deficient
in reviewing discovery with him prior to trial. Accordingly, this
claim fails.
(d) Appellant contends his trial counsel was deficient by failing
16
to relay a plea offer to him. In its order denying Appellant’s motion
for new trial, the trial court found that Appellant’s trial counsel
“testified that there were no negotiations to convey to [Appellant] as
the State’s recommendation was a life sentence [with the possibility
of parole], which was also the minimum sentence that [Appellant]
could receive at trial, and that the State refused to reconsider its
recommendation when counsel attempted negotiations.” Moreover,
Appellant’s trial counsel testified that, “[I]f I’m not mistaken, I
would have—I know I would have told [Appellant] that the deal is
life [with the possibility of parole]” and “I would like to say I
[conveyed the plea offer], because the plea negotiations from the
outset were always life, with the possibility of parole.”
Even assuming without deciding that a plea offer existed and
that trial counsel was deficient for failing to relay the plea offer,
Appellant has not demonstrated prejudice because the sentence
under the plea offer was the same as the sentence Appellant actually
received, i.e., life in prison with the possibility of parole. See Jacobs
v. State, 306 Ga. 571, 574(832 SE2d 363 (2019) (“Where a defendant
17
alleges that a plea offer was not disclosed to [him], . . . [t]he
defendant must show: . . . that the conviction or sentence, or both,
under the offer’s terms would have been less severe than under the
judgment and sentence that in fact were imposed.” (citations and
punctuation omitted)). Accordingly, this claim fails.
(e) Appellant contends his trial counsel failed to properly
advise him of his right to testify and if he was so informed, he would
have testified. In its order denying Appellant’s motion for new trial,
the trial court found that both Appellant’s trial counsel and the court
explained Appellant’s right to testify to him.
Appellant’s trial counsel testified at the motion-for-new-trial
hearing that at trial he explained to Appellant that he had a right
to testify.5 Prior to the presentation of the defense witnesses, the
trial court also engaged in an extended on-the-record colloquy with
Appellant concerning his right to testify. During this colloquy,
5 When questioned at the hearing on whether he was informed that he
had the right to testify, Appellant stated, “I mean, I did [sic], but he told me
not to. He told me it wouldn’t be a smart idea if I testified.” He further testified
that had he been fully informed of his right to testify, he would have chosen to
testify.
18
Appellant stated that he understood he had the right to testify and
that if he wanted to testify, no one could prevent him from doing so.
After Appellant stated he did not want to testify, he affirmed twice
that this was his decision.
“It is well settled that defense counsel bears the primary
responsibility for advising the defendant of his right to testify or not
to testify, the strategic implications of each choice, and that it is
ultimately for the defendant himself to decide.” Adams v. State, 298
Ga. 371, 373 (2) (b) (782 SE2d 36) (2016) (citation and punctuation
omitted). In order to succeed on this claim, Appellant “must
overcome the strong presumption that trial counsel’s conduct falls
within the broad range of reasonable professional conduct.” Goodson
v. State, 305 Ga. 246, 249 (2) (824 SE2d 371) (2019) (citation and
punctuation omitted).
As explained above, Appellant’s trial counsel testified at the
motion-for-new-trial hearing that he explained to Appellant that he
had the right to testify, and some of Appellant’s testimony at the
hearing indicates that his trial counsel actually discussed the right
19
to testify with him. The trial court implicitly credited the testimony
of Appellant’s trial counsel over Appellant on this issue, and it was
entitled to do so. See Miller, 295 Ga. at 772 (2) (a) (i).
Appellant has failed to demonstrate that his trial counsel
performed deficiently by failing to properly advise him of his right
to testify. Accordingly, this claim fails.
(f) Appellant contends that his trial counsel failed to present
his stepfather, Dale Gilmore, and Deputy James Heidenreich as
witnesses and that his trial counsel “failed to adequately
investigate” Darrell prior to trial. In its order denying Appellant’s
motion for new trial, the trial court ruled that the testimony of
Gilmore and Deputy Heidenreich would have been cumulative and
therefore trial counsel was not deficient in failing to call them as
witnesses. The trial court also ruled that “trial counsel was able to
explain his actions in preparing witnesses for trial and that
counsel’s performance fell within the range of professional
assistance.” 6
6 While the trial court acknowledged that Appellant “complain[ed] that
20
Deputy Heidenreich testified at the motion-for-new-trial
hearing that he was dispatched to the hospital “in reference to a
pedestrian hit by a vehicle.” When he arrived, he spoke to a nurse,
who stated that Burke was getting a CT scan. The nurse informed
Deputy Heidenreich of Burke’s injuries and stated that he was
“extremely intoxicated.” Deputy Heidenreich then spoke to Beverly,
who told him that one of Burke’s friends “had brought [Burke] to
their house and told her that he had fell and hit his head on a truck.”
Deputy Heidenreich left the hospital without speaking to Burke,
turned his report over to a supervisor, did not do any further
investigation, and was never contacted by Appellant’s trial counsel.
When questioned about why he did not present Deputy
Heidenreich as a witness at trial, Appellant’s trial counsel testified,
“I think [Appellant] had spoke[n] to []Heidenreich and he had
mentioned to []Heidenreich that he wasn’t at the cookout that day.
I can’t recall it vividly, but one of the initial reports that I read
trial counsel failed to interview . . . Darrell,” the trial court did not make any
specific findings or rulings concerning Darrell.
21
talked—mentioned . . . a statement about not being at the incident
location.” He also testified that
the only thing I would have wanted out of Heidenreich
was [that Burke’s statement regarding what happened]
wasn’t reliable because he was inebriated. That’s the
point, all I wanted Heidenreich for. . . . I specifically
remember wanting to make sure that was out so that we
could argue it in closing, was that basically [Burke]
wouldn’t have known what happened to him based on his
level of intoxication.
Appellant’s trial counsel later acknowledged that Deputy
Heidenreich’s testimony was cumulative of other evidence at trial;
however, he also testified, “[T]o be candid with the [c]ourt, I don’t
know if that was in my mind” when he decided not to present him
as a witness.
Regardless of the reason why trial counsel chose not to call
Deputy Heidenreich, it is clear that his proposed testimony—that he
was dispatched to the hospital “in reference to a pedestrian hit by a
vehicle,” that a nurse told him that Burke was “extremely
intoxicated,” and that Beverly told him that Burke’s friends told her
that he had been hit by car—would have been hearsay. And
22
Appellant has not demonstrated that Deputy Heidenreich’s
proposed testimony would have been admissible at trial.
Accordingly, we conclude Appellant has failed to carry his burden to
demonstrate that counsel performed deficiently by failing to call
Deputy Heidenreich as a witness. See Mosby v. State, 300 Ga. 450,
454 (2) (796 SE2d 277) (2017) (“Deficient performance of counsel is
not shown by trial counsel’s failure to present a witness whose
testimony would have been inadmissible.”).
Regarding Gilmore, he testified at the motion-for-new-trial
hearing that he hosted the cookout, Appellant is his stepson, and he
did not see Appellant get into a verbal or physical altercation with
Burke. He further testified that Burke was drunk and staggering,
and he “fell right there by the truck.” Gilmore also stated that he
never spoke to Appellant’s trial counsel about the case.
Appellant’s trial counsel testified at the motion-for-new-trial
hearing that he did not call Gilmore as a witness because his
testimony “would have been cumulative” and he did not want to
“burden the jury with cumulative evidence.” As we stated above,
23
Rozier-Fleming, Darrell, and Kevin each testified that Burke fell
and hit his head on a truck. Rozier-Fleming and Kevin also testified
that Burke was intoxicated, and Rozier-Fleming testified that Burke
was stumbling before he fell. Thus, Gilmore’s testimony would have
been cumulative evidence. Accordingly, we conclude Appellant has
failed to carry his burden to demonstrate that his trial counsel
performed deficiently in failing to present Gilmore as a witness. See
Lewis v. State, 312 Ga. at 537, 544-545 (3) (a) (ii) (863 SE2d 65)
(2021) (the appellant failed to show that his trial counsel was
ineffective by failing to present a witness where that witness’s
testimony would have been cumulative of other evidence presented
at trial).
Regarding Darrell, he testified at the motion-for-new-trial
hearing that “he was contacted the day of trial and did not speak to
[Appellant’s trial counsel] nor anyone from his office.” However, a
review of the motion-for-new-trial transcript reveals that Darrell
actually testified that Appellant’s trial counsel personally contacted
him the day before he testified, and they discussed that Darrell
24
would need to testify. Indeed, Darrell testified favorably for
Appellant at trial.
At the motion-for-new-trial hearing, Appellant failed to
question his trial counsel about when he first contacted Darrell or
why he failed to contact him earlier. 7 “[W]hen trial counsel does not
testify at the motion[-]for[-]new[-]trial hearing about the subject, it
is extremely difficult to overcome the presumption that his conduct
was reasonable.” Merritt v. State, 310 Ga. 433, 436 (2) (a) (851 SE2d
555) (2020) (citation and punctuation omitted). Without trial
counsel’s testimony or some other evidence explaining trial counsel’s
decision, Appellant cannot show that it was patently unreasonable
not to contact Darrell earlier, particularly because he appeared at
trial and testified favorably for Appellant. See id. Accordingly, we
conclude Appellant has failed to carry his burden to demonstrate
that his trial counsel performed deficiently by failing to speak to
Darrell earlier than the day before trial.
7 Appellant’s trial counsel testified that he spoke to Appellant’s mother
“a lot” and she told him who was present at the cookout.
25
(g) Appellant contends his trial counsel was deficient by failing
to retain and present an expert witness because “there was
testimony that [Burke] was in a coma and experts could determine
any residual effects of head trauma and medications,” and the
medical examiner and Burke’s doctor “had differing opinions as to
the source of the injuries arising from a fight or hitting a vehicle.” 8
Thus, Appellant contends “[a] defense expert would have provided a
third opinion and additional insight to [Burke’s] recollection for
jurors to consider.”
Assuming without deciding that Appellant’s trial counsel was
deficient for failing to retain and present an expert witness
regarding Burke’s injuries and cause of death, Appellant has not
shown that, had an expert witness been hired, the result of his trial
would have been different. Appellant failed to present an expert
witness to testify at the motion-for-new-trial hearing to substantiate
8 As noted above, the evidence at trial actually showed that the doctor
testified that Burke’s injuries were consistent with both “being struck by an
automobile” and “being kicked repeatedly about the head and body.” In
contrast, the medical examiner testified only that Burke’s injuries were
consistent with being kicked repeatedly about the head and body.
26
his claim that the witness’s testimony would have been relevant and
favorable to his defense. Therefore, Appellant has failed to show that
there is a reasonable probability the result of his trial would have
been different because there is no evidence as to how a potential
expert witness would have testified. See Hughes v. State, 289 Ga.
98, 100 (3) (709 SE2d 764) (2011). Accordingly, this claim fails.
(h) In his brief, Appellant also asks “[w]hether an attorney who
. . . files no pretrial motions, demands, requests or other documents
. . . has performed his duties in an unreasonable manner, rendering
his representation ineffective?” and answers “[y]es.” Appellant does
not say anything else.. Assuming without deciding that this
generalized claim of ineffective assistance of counsel was properly
raised before the trial court, this claim is deemed abandoned under
Supreme Court Rule 22. See Seabrooks v. State, 306 Ga. 670, 671 (2)
(832 SE2d 847) (2019) (ineffective-assistance-of-counsel claims are
deemed abandoned where the appellant’s claim “includes no
meaningful argument or analysis and no citations of relevant
authority”).
27
3. Appellant contends that the trial court erred by allowing the State
to impeach Darrell with a 2007 conviction for possession of cocaine
under Rule 609.9 A trial court’s decision under Rule 609 is reviewed
for an abuse of discretion. See Anderson v. State, 307 Ga. 79, 84 (3)
(b) (834 SE2d 830) (2019). Assuming without deciding that
Appellant objected to the admission of the conviction, and assuming
9 Rule 609 (a) (1) and (b) provide:
(a) General rule. For the purpose of attacking the character for
truthfulness of a witness:
(1) Evidence that a witness other than an accused has been
convicted of a crime shall be admitted subject to the provisions
of Code Section 24-4-403 if the crime was punishable by death
or imprisonment in excess of one year under the law under
which the witness was convicted and evidence that an accused
has been convicted of such a crime shall be admitted if the court
determines that the probative value of admitting the evidence
outweighs its prejudicial effect to the accused[.]
...
(b) Time limit. Evidence of a conviction under this Code section
shall not be admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of the
witness from the confinement imposed for such conviction,
whichever is the later date, unless the court determines, in the
interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially
outweighs its prejudicial effect. However, evidence of a conviction
more than ten years old, as calculated in this subsection, shall not
be admissible unless the proponent gives to the adverse party
sufficient advance written notice of intent to use such evidence to
provide the adverse party with a fair opportunity to contest the use
of such evidence.
28
without deciding that the trial court abused its discretion in
allowing the State to impeach Darrell with the conviction, we turn
to whether any such error was harmless.
“The test for determining nonconstitutional harmless error is
whether it is highly probable that the error did not contribute to the
verdict.” Henderson v. State, 310 Ga. 708, 713 (3) (854 SE2d 523)
(2021) “In the context of Rule 609, error is harmless if the witness’
credibility was sufficiently impeached by other evidence, or if the
[State’s] case was strong enough to support a conviction even apart
from the witness’ testimony.” Brown v. State, 307 Ga. 24, 30 (3) (834
SE2d 40) (2019) (citation and punctuation omitted).
Here, when the prosecutor asked Darrell about the conviction,
Darrell denied that the conviction was his, stated that the signature
on the conviction was not his, and further stated that the conviction
belonged to his cousin with the same name. The State did not prove
otherwise, and the conviction was not admitted into evidence.
Darrell’s credibility was also impeached when he admitted during
cross-examination that he was aware that his cousin had been
29
arrested and charged with assaulting Burke and he did not contact
the Sheriff’s Department or the District Attorney and tell them that
Appellant did not assault Burke and that he had witnessed Burke
fall. The prosecutor used Darrell’s testimony during closing
argument when he argued, “None of [Appellant’s three cousins]
bothered to go to the [p]olice [s]tation and tell them what they saw,
that they had a man locked up who did [not] do it and they know it,
because they saw it.” And the prosecutor never mentioned Darrell’s
alleged conviction during his opening statement or closing
argument. See United States v. Lewis, 364 Fed. Appx. 606, 609 (11th
Cir. 2010) (whether the prosecutor mentions the conviction “in
opening or closing statements” is relevant to the harmless error
analysis). Further, Darrell’s testimony was cumulative of that of
Rozier-Fleming and Kevin. Thus, Appellant has not carried his
burden to show that the State’s attempted impeachment of Darrell
probably affected the outcome of the trial. Accordingly, this claim
fails.
4. Appellant contends that the trial court abused its discretion
30
in denying his motion for new trial based on newly discovered
evidence in the form of a photograph showing Burke lying next to a
truck. To obtain a new trial under OCGA § 5-5-23 based on newly
discovered evidence, a defendant must show the six factors of the
Timberlake10 test:
first, that the evidence came to his knowledge after his
trial; second, that the failure to discover the evidence
sooner was not due to his lack of due diligence; third, that
the evidence is so material that it would probably produce
a different verdict; fourth, that the evidence is admissible
and not cumulative only; fifth, an affidavit of the witness
or an explanation for its absence; and sixth, that the effect
of the evidence would be more than to impeach the
witness’s credibility.
Williams v. State, 312 Ga. 195, 196 (862 SE2d 108) (2021).
At the motion-for-new-trial hearing, Appellant testified that on
the day Burke suffered his injuries, he was intoxicated and he fell.
Appellate counsel marked a photograph as Exhibit C and showed it
to Appellant. Appellant testified that the photograph showed “Burke
l[y]ing right there by his truck.” He further testified that he and his
family did not have access to the photograph at the time of trial, and
10 Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980).
31
it was provided after trial. When Appellant was asked whether he
and his family attempted to get evidence of what occurred that day,
he responded, “Yeah. They were trying to get everybody that was
there to let everybody know that that’s what happened. But we
didn’t even know nothing about a picture.” Appellant’s trial counsel
testified, “[A]fter the trial was over, I did receive an avalanche of
information and pictures and whatnot.” In the order denying the
motion for new trial, the trial court explained the photograph
depicted Burke “wearing a white shirt and dark or black sweatpants,
lying face down beside a grey truck” and determined the photograph
was “not inconsistent with the State’s theory or the testimony of the
State’s witnesses” and it “merely cumulative” and therefore could
not “form the basis for granting a new trial.”
Assuming without deciding that Appellant has satisfied the
first two requirements of the six-part Timberlake test, we address
the third and fourth requirements (cumulativeness and
materiality), which were the bases for the trial court’s decision. The
photograph only shows Burke lying face down by a truck. Thus, the
32
photograph is not so material that it would probably produce a
different verdict. See, e.g., Swinson v. State, 311 Ga. 48, 58 (4) (855
SE2d 629, 639) (2021) (evidence is not material where it does not
undermine the State’s theory of the case and is consistent with other
testimony), disapproved on other grounds, Outlaw v. State, 311 Ga.
396, 401 n.5 (2) (b) (858 SE2d 63) (2021). Moreover, all the witnesses
testified that Burke was lying face down beside a truck after he was
either attacked or fell. Thus, the evidence is cumulative of their
testimony. Because the alleged newly discovered evidence was both
not material and cumulative, the trial court did not abuse its
discretion in denying the motion for new trial.
5. Finally, we consider whether the cumulative effect of
presumed errors by trial counsel and the trial court entitles
Appellant to a new trial. See State v. Lane, 308 Ga. 10, 17 (1) (838
SE2d 808) (2020) (“We hold that the proper approach [to assessing
trial court evidentiary errors] . . . is to consider collectively the
prejudicial effect, if any, of trial court errors, along with the
prejudice caused by any deficient performance of counsel.”). Here,
33
the cumulative prejudice from any assumed deficiencies discussed
in Divisions 2 (d) and (g)—failing to relay the plea offer (which
caused no prejudice) and failing to retain and present an expert
witness (for which no prejudice was established)—and Division 3—
the attempted impeachment of a cumulative witness with a
conviction (for which there was minimal prejudice)—is insufficient
to show a reasonable probability that the results of the proceeding
would have been different in the absence of the alleged deficiencies.
Judgment affirmed. All the Justices concur, except Colvin J.,
disqualified.
34