Warren 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
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official text of the opinion.
In the Supreme Court of Georgia
Decided: September 20, 2022
S22A0466. WARREN v. THE STATE.
PINSON, Justice.
After a jury trial, Brandon Jerard Warren was convicted of
malice murder and other offenses in connection with killing Samuel
Poss and hiding his body. 1 On appeal, Warren contends that his trial
1 On August 8, 2017, a Houston County grand jury indicted Warren and
a co-defendant, Dakota White, on six counts: malice murder, felony murder,
two counts of aggravated assault, concealing the death of another, and
tampering with evidence. The two defendants were tried separately. White was
tried first and was convicted on all counts. White was sentenced to life without
parole and we affirmed his convictions and sentence on appeal. See White v.
State, 307 Ga. 601 (837 SE2d 838) (2020). Warren’s trial followed, taking place
from May 14 to 16, 2018. He was found guilty on all counts. On May 16, 2018,
Warren was sentenced to serve life in prison without the possibility of parole
for malice murder, ten years for concealing the death of a person, and ten years
for tampering with evidence, all to be served concurrently. The aggravated
assault count merged with the malice murder count for sentencing. The trial
count purported to merge the felony murder count with the malice murder
count, but the felony murder count was actually vacated by operation of law.
See Malcolm v. State, 263 Ga. 369, 371-72 (4) (434 SE2d 479) (1993). Warren
timely filed a motion for new trial on May 25, 2018, which he later amended
through new counsel. On September 10, 2021, following a hearing, the trial
court denied Warren’s motion for new trial, as amended. Warren timely filed a
counsel gave ineffective assistance in violation of the Sixth
Amendment to the United States Constitution. He faults counsel for
failing to object when the prosecutor argued during closing that the
State’s burden of proof “beyond a reasonable doubt” did not require
“mathematical certainty” like “95 percent [or] 85 percent,” and for
failing to give Warren adequate advice about the risks of testifying.
But Warren has not established a reasonable likelihood that the
outcome of his trial would have been different if his counsel had
objected to the prosecutor’s remark, given the strong evidence
against him. And he has not shown that trial counsel’s advice to
Warren about his right to testify, which included explaining the pros
and cons of testifying and telling him the decision was his to make,
fell outside the wide range of reasonable professional conduct. So we
affirm Warren’s convictions.
1. (a) The evidence at Warren’s jury trial showed the following.
According to Warren’s co-defendant, Dakota White, he and Warren
notice of appeal on October 7, 2021. The case was docketed to the April 2022
term of this Court and submitted for decision on the briefs.
2
had been talking in the days before the crimes about finding
someone to kill, “to see what it felt like.” One evening, while the two
were at White’s house, White saw an acquaintance, Samuel Poss,
online on a gaming website. White messaged Poss that he was
having trouble with his computer and asked if Poss would come over
to help. White testified that the message was a false pretense to get
Poss to come over so that White and Warren could kill him, and
White and Warren both knew this.
Poss agreed to come over, so White and Warren drove to pick
him up at his house. White had electric cords in the car and a knife
in the glovebox, and Warren had a knife with him, too. When the
three of them returned to White’s driveway, White put a cord around
Poss’s neck and “tried to strangle him.” The cord soon broke, so
White put his arm around Poss’s neck and continued strangling him.
At that point, according to White, Warren stabbed Poss “at least
three times” with his knife. A forensic pathologist testified at trial
that Poss suffered eleven “sharp force injuries,” and that his death
was caused by those injuries in conjunction with strangulation.
3
After Poss died, Warren and White went inside to clean up, and
Warren buried his knife in the backyard. They took Poss’s body to a
vacant lot, where they buried him. White drove Warren home. Two
days later, Warren and White met up again. Warren dug up his knife
and put it with White’s knife in a Ziploc bag, and then White threw
the bag off the side of a bridge.
The day after the killing, White’s mother noticed blood in the
back of the car. White told her what he had done. White was arrested
four days later. In a police interview, White admitted to killing Poss
and implicated Warren. He later showed police where to find the
body and the two knives.
The knives were recovered and introduced at trial. Warren’s
knife had a blue handle, and the knife that White had kept in the
glove compartment had a brown handle. A DNA analyst from the
Georgia Bureau of Investigation testified that both knives were
tested for DNA on their handles and on their blades. On the blue
knife, analysts found DNA from a mixture of at least three
individuals, at least one of which was male; White was excluded as
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a contributor, but neither Poss nor Warren could be ruled out. On
the brown knife, no DNA was found on the blade, White’s DNA was
found on the handle, and both Poss and Warren were excluded as
contributors. In short: the brown knife had White’s DNA on it but
not Poss’s or Warren’s; and the blue knife may have had Poss’s DNA
on it and may have had Warren’s on it, but did not have White’s.
The State also introduced a letter that Warren had written to
his father from jail. In the letter, Warren told a story largely
consistent with White’s testimony, but with a few more details.
Warren wrote that White, not Warren, had stabbed Poss with the
brown knife. And Warren wrote that when he gave the blue knife to
White, White did not touch the knife with his hand, but instead used
one of Warren’s socks to take it.
Warren testified in his own defense. Before he was sworn in,
his counsel asked whether he understood that he was under no
obligation to testify, that the prosecutor could ask him questions if
he did testify, and that if he decided not to testify the judge would
tell the jury that they could not hold that against him. Warren said
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he understood.
Warren’s testimony about the night of the murder—like his
narrative in his letter to his father—mostly tracked White’s story,
but with a few exceptions. Warren testified that when White started
talking about wanting to find someone to kill, he also talked about
killing Warren, and Warren became afraid. Warren said that after
he and White picked up Poss and were taking him back to White’s
house, Warren drove in the middle of the road, with his high-beam
lights on, hoping the police or someone would notice them. Warren
denied doing anything to conceal the knives after the murder.
Warren also testified that White, not Warren, stabbed Poss. This
time, however, he said that his blue knife was used. He denied
helping in any way to kill Poss.
During closing argument, the prosecutor commented on the
State’s burden of proof. He said that the State’s burden was proof
“beyond a reasonable doubt and the Court will tell you again what
that is. It’s not to a mathematical certainty, it’s not 95 percent, 85
percent, it’s a doubt of a fair-minded, reasonable person.” The
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defense did not object to this comment.
Later, the trial court instructed the jury on the State’s burden
of proof, explaining:
No person shall be convicted of any crime unless and until
each element of that crime is proven beyond a reasonable
doubt. . . [T]he State is not required to prove the guilt of
the accused beyond all doubt or to a mathematical
certainty. A reasonable doubt means just what it says.
That’s the doubt of a fair-minded, impartial juror who is
honestly seeking the truth. It’s a doubt that can be based
on [common] sense and reason. It’s not some vague or
fanciful or speculative doubt, but it’s a doubt for which
you can give a reason. It may arise from the evidence
you’ve heard or from a lack of evidence or a conflict in
evidence or some combination of those things.
Warren was convicted on all counts. He was sentenced to life
in prison without the possibility of parole.
(b) In his motion for new trial, Warren raised two claims of
ineffective assistance of counsel. He contended that his counsel
should have objected to the prosecutor’s closing-argument remark
that proof beyond a reasonable doubt was not “95 percent, 85
percent.” And he argued that his counsel failed to adequately inform
him about the dangers of taking the stand in his own defense.
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At the hearing on his motion for new trial, Warren and his trial
counsel both testified. Trial counsel testified that he talked with
Warren “more than half a dozen times” about the possibility of
testifying at trial, going over “the pros and cons of . . . giving
testimony.” He said that he had wanted to be sure Warren could
“handle” testifying, given his “meek” and “quiet” nature. Trial
counsel admitted that he had concerns about Warren testifying, but
that he did not advise Warren either to do so or not. Trial counsel
explained that it was Warren’s decision whether to testify, and that
“when a client tells me they want to testify, they testify . . . I don’t
try to talk them out of it.” By contrast, Warren himself testified that
his trial counsel did not speak with him about his possible trial
testimony or about the pros and cons of testifying.
The trial court denied the motion for new trial. The court found
that Warren was not prejudiced by his counsel’s failure to object to
the prosecutor’s closing argument, because the evidence against him
was considerable. And the trial court found that trial counsel did
advise Warren of his right to testify, including the “pros and cons”
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of doing so. The court concluded that Warren’s decision to testify was
tactical, and that counsel’s advice on the matter was within the
bounds of reasonable trial strategy.
2. On appeal, Warren raises the same claims of ineffective
assistance of counsel that he raised in his motion for new trial. In
reviewing those claims, we accept the trial court’s factual findings
unless clearly erroneous, but we independently apply legal
principles to the facts. See Lyons v. State, 309 Ga. 15, 25 (8) (843
SE2d 825) (2020).
To succeed on a claim of ineffective assistance, a defendant
must establish both that his counsel’s performance was deficient
and that he was prejudiced as a result of that deficient performance.
Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022)
(citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt
2052, 80 LE2d 674) (1984)).
To prove deficient performance, a defendant must establish
that counsel “performed his duties in an objectively unreasonable
way, considering all the circumstances and in the light of prevailing
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professional norms.” Id. (citation omitted). To overcome the “strong
presumption” that counsel performed reasonably, the defendant
must show that “no reasonable lawyer would have done what his
lawyer did, or would have failed to do what his lawyer did not.” Id.(citation omitted). And counsel’s decisions about trial tactics and
strategy in particular may not form the basis of an ineffectiveness
claim unless they were “so patently unreasonable that no competent
attorney would have followed such a course.” Id. (citation omitted).
To prove prejudice, a defendant must establish that there is a
“reasonable probability that, but for counsel’s deficiency, the result
of the trial would have been different.” Id. A reasonable probability
is a probability “sufficient to undermine confidence in the outcome”
of the trial. Neal v. State, 313 Ga. 746, 751 (3) (873 SE2d 209) (2022)
(citation omitted).
(a) Warren first contends that his counsel was ineffective for
failing to object when the prosecutor remarked during his closing
argument that the State’s burden of proof—proof of guilt beyond a
reasonable doubt—did not mean “to a mathematical certainty, it’s
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not 95 percent, 85 percent.”
For this claim, Warren relies on Debelbot v. State, 308 Ga. 165(839 SE2d 513) (2020), in which we held that counsel gave
constitutionally ineffective assistance for failing to object to the
prosecutor’s remarks that proof beyond a reasonable doubt “does not
mean to a mathematical certainty,” and that the jury did not have
to be “ninety percent,” or “eighty percent,” or even “fifty-one percent
sure.” Id. at 167. We explained that “the argument that proof beyond
a reasonable doubt requires something less than proof that leaves a
jury with 51 percent certainty is ‘obviously wrong’,” and we saw “no
good reason that any reasonably competent lawyer would fail to
object to ‘such an egregious misstatement of the law.’” Id. We also
concluded that counsel’s failure to object prejudiced the two
defendants because it was “uniquely harmful” in that case. Id. at
168. We explained that not only was evidence of guilt “notably
lacking” and “underwhelming” in key respects, but also that the
prosecutor’s 51-percent argument may well have persuaded the jury
to convict both defendants based on “something less than 51 percent
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probability of guilt,” because the trial evidence did not show which
of the two defendants was more likely to have committed the crime.
Id. at 168-69.
But the much closer comparator here is Draughn v. State, 311
Ga. 378 (858 SE2d 8) (2021), which we decided a year after Debelbot.
Like Warren, Draughn raised an ineffectiveness claim that relied on
Debelbot, based on a closing-argument remark that beyond a
reasonable doubt “is not beyond all doubt. It’s not 90 percent or 95
percent.” Id. at 382 (2). We rejected Draughn’s claim. In doing so, we
explained that even assuming counsel should have objected to the
remark, Draughn was not prejudiced because the evidence against
him was “plainly sufficient,” and the prosecutor’s “characterization
of reasonable doubt was considerably less blatant than the error in
Debelbot and—unlike in Debelbot—was cured by the trial court’s
instructions to the jury, which explained presumption of innocence,
burden of proof, and reasonable doubt accurately and at length.” Id.
at 383 (2) (b).
We reach the same conclusion about prejudice here. Once
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again, remarks like the prosecutor’s here are “at the very least
inadvisable.” Id. at 383 n.5 (2) (b) (citing Debelbot, 308 Ga. at 169
n.9 (“We admonish lawyers not to confuse jurors by attempting to
quantify a standard of proof that is not susceptible of
quantification.”)). But even assuming trial counsel’s failure to object
to those remarks amounted to deficient performance, Warren was
not prejudiced. The evidence of Warren’s guilt was strong: White’s
testimony implicated Warren, and that testimony was largely
consistent with Warren’s own testimony, differing only as to who
had stabbed Poss—and the jury could have found Warren guilty
based on all of that testimony as a party to the crime regardless of
who had stabbed Poss. See OCGA § 16-2-20 (defining party to a
crime); Powell v. State, 307 Ga. 96, 99 (1) (834 SE2d 822) (2019)
(defendant can be convicted as a party to a crime if he shared a
common criminal intent with the principal perpetrator, which may
be inferred from presence, companionship, and conduct before,
during, and after the offense). Moreover, the DNA evidence from the
knives made it more likely that Warren had stabbed Poss. Finally,
13
Warren has not pointed to anything in this case like the
circumstances in Debelbot that made the prosecutor’s more
egregious remark “uniquely harmful” there, and the trial court here
“explained presumption of innocence, burden of proof, and
reasonable doubt accurately and at length,” like the trial court in
Draughn. Id. at 383 (2) (b). In short, it is not reasonably probable
that counsel’s failure to object to the prosecutor’s remark affected
the outcome of Warren’s trial. See Draughn, 311 Ga. at 383 (2) (b).
See also Lane v. State, 312 Ga. 619, 624-25 (2) (b) (864 SE2d 34)
(2021) (defendant not prejudiced by counsel’s failure to object to
prosecutor’s closing-argument bolstering of the credibility of a
prosecution witness given substantial evidence of guilt); Jones v.
State, 288 Ga. 431, 434 (704 SE2d 776) (2011) (defendant not
prejudiced by counsel’s failure to object to prosecutor’s remark about
defendant’s future dangerousness given overwhelming evidence of
guilt). So this claim of ineffective assistance fails. See Washington,
313 Ga. at 773 (3).
(b) Warren also contends that his counsel was ineffective for
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failing to adequately advise him about his right to testify.
The Fifth Amendment to the United States Constitution’s right
against compelled self-incrimination, made applicable to the states
by the Fourteenth Amendment, protects a criminal defendant’s
right to decline to testify in his own defense. Vega v. Tekoh, __ U.S.
__, __ (142 SCt 2095, 2101 (II) (A), 213 LE2d 479) (2022); Pender v.
State, 311 Ga. 98, 120 (7) (856 SE2d 302) (2021). The defendant may
also waive that right and take the stand. The decision whether to
testify in one’s own defense “is a tactical decision to be made by the
defendant himself after consultation with trial counsel.” State v.
Goff, 308 Ga. 330, 334 (1) (840 SE2d 359) (2020) (citation omitted).
Here, the trial court found that counsel had consulted with
Warren about his decision whether to testify. The court found that
counsel “always” told clients if he thought it would be bad to testify,
and that he “always” told clients the “pros and cons” of testifying,
but that counsel “did not in the end tell [Warren] he should or should
not testify.”
Warren contends that this advice was not good enough. In his
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view, constitutionally effective assistance required counsel to do
more than merely lay out the reasons for and against testifying and
then leave the decision to him. Instead, effective counsel would have
told him what to do. If his counsel knew his testimony would be
“detrimental,” Warren says counsel should have advised him not to
testify.
But we have regularly concluded that advice along the lines
trial counsel gave here is within the wide range of reasonable
professional conduct. When advising a defendant about the decision
whether to testify in his own defense, it is generally enough for
counsel to advise the defendant about the “pros and cons” of
testifying and explain that the ultimate choice is the defendant’s to
make, whether the defendant testifies and then regrets it (as here),
or does not testify and later wishes he had. See, e.g., Thomas v.
State, 300 Ga. 433, 439 (2) (a) (2) (796 SE2d 242) (2017) (no deficient
performance when trial counsel explained “the good parts and the
bad parts” of testifying and told defendant the final decision was
his); Turner v. State, 300 Ga. 513, 515 (2) (b) (796 SE2d 698) (2017)
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(no deficient performance when trial counsel advised defendant
about right to testify, the reasons he might not want to do so, and
that the decision was his). See also Jackson v. State, 306 Ga. 475,
480-81 (4) (b) (831 SE2d 755) (2019) (defendant’s failure to testify on
his own behalf was not connected to any alleged deficiency of counsel
when defendant was “fully informed” of his right to testify, including
that the ultimate decision was his); Leanos v. State, 303 Ga. 666, 671
(2) (c) (i) (814 SE2d 332) (2018) (same). Of course, as with any issue
in this context, we consider the circumstances of each particular case
to determine a lawyer’s effectiveness in advising the defendant
about the right to testify. See Lockhart v. State, 298 Ga. 384, 385 (2)
(782 SE2d 245) (2016) (reasonableness of counsel’s conduct is
examined “from counsel’s perspective at the time of trial and under
the particular circumstances of the case”). But Warren points to
nothing about the circumstances here that would make counsel’s
advice deficient. So this claim of ineffective assistance fails as well. 2
2 We also reject Warren’s argument that he was prejudiced by the
cumulative effect of trial counsel’s deficient performance. “Assessing
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Judgment affirmed. All the Justices concur.
cumulative prejudice is necessary only when multiple errors have been shown.”
Scott v. State, 309 Ga. 764, 771 (3) (d) (848 SE2d 448) (2020). Warren has not
established multiple instances of deficiency because he raised only two claims
of ineffective assistance, and we have concluded that he failed to show that
counsel’s advice about Warren’s right to testify was deficient.
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