Williams v. State ( 2023 )

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: May 16, 2023
S23A0203. WILLIAMS v. THE STATE.
ELLINGTON, Justice.
Brandon Williams appeals his convictions for malice murder
and possession of a firearm during the commission of a felony in
connection with the shooting death of Corey Coleman. 1 Williams
contends that the trial court erred when it did not allow him to show
his left arm during the cross-examination of a detective, when it
1 The crimes occurred on May 10, 2008. On December 17, 2013, a Fulton
County grand jury indicted Williams for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
felony. After a jury trial that ended on December 4, 2017, Williams was found
guilty on all counts. On December 5, 2017, Williams was sentenced to serve life
in prison for malice murder and a consecutive five-year prison term for the
firearms charge. The felony murder count was vacated by operation of law, and
the remaining count of aggravated assault was merged into the malice murder
conviction for sentencing purposes. Williams filed a timely motion for new trial,
which he amended through new counsel on December 22, 2020, and January
26, 2021. After a hearing on June 23, 2022, the trial court denied the amended
motion for new trial on August 25, 2022. Williams filed a timely notice of
appeal, and the case was docketed in this Court to the term beginning in
December 2022 and orally argued on February 8, 2023.
allowed testimony about a deceased person’s out-of-court
identification of Williams, when it failed to charge the jury on self-
defense, and when it allowed introduction of Coleman’s statements
to his mother. Williams also contends that he received ineffective
assistance of trial counsel. Finally, Williams contends that the
cumulative errors created sufficient prejudice that he must receive
a new trial. Because Williams has failed to show reversible error, we
affirm.
The evidence submitted at trial shows the following. Coleman’s
mother testified that in late 2007, then 16-year-old Coleman moved
out of her house to live with a friend because “he was scared.” Near
the beginning of May 2008, Coleman moved back to his mother’s
house but remained fearful, would not go out much, moved his bed
away from the window, and asked about moving away again.
On the evening of May 10, 2008, Coleman attended a
neighborhood party with his nephew and two friends. They
eventually walked to another house and knocked on the door. A
black man with light skin and dreadlocks, identified by Coleman’s
2
group as “B” or “Little B” or “Brandon,” looked out the window and,
with a gun in his possession, walked past Coleman’s group out of the
house as the group went in. Other witnesses confirmed that “B” or
“Brandon” was present at the house that evening.
Once Coleman was inside the house, he pulled a black Hi-Point
.380-caliber pistol out of his coat, began loading it, and placed it on
a table in front of him. Soon afterwards, “B” came back into the
house and fired several rounds at Coleman from a chrome .380-
caliber pistol with a black handle. No one saw Coleman pick up his
pistol or point it at “B.” Instead, Coleman began to run but was shot
in the back and collapsed. The shooter ran out of the house. One of
Coleman’s friends, Andre Reese, took Coleman’s pistol from the
table, threw it into some bushes, and later sold it.
Coleman was transported to a hospital emergency room but
died from a single gunshot that entered his left mid-back, “kind of
on the side,” and exited his right abdomen. The medical examiner
testified that, when Coleman was shot, he could not have been facing
the shooter, that Coleman was not shot at close range, and that he
3
likely was not shot during a struggle. The police were not able to
recover either pistol, but were able to recover three bullets and three
cartridge cases from the floor and a table at the crime scene. Expert
firearms and toolmark analysis showed that all of those bullets were
.380-caliber and were discharged from the same pistol, but not from
a Hi-Point pistol. All three cartridge cases were fired from one pistol,
which was “very possibl[y]” the same pistol from which the bullets
were fired.
Police showed Coleman’s nephew and two friends a
photographic lineup that included Brandon Nolan because Reese
thought the shooter’s last name might be something like Knowles or
Knowley, but neither Reese nor anyone else was able to identify the
shooter from that lineup. Reese then showed police the house where
he said “the Brandon that shot [Coleman] used to live.” Because
Williams had been associated with the address of that house, he was
included in a new lineup. Coleman’s nephew and two friends
identified Williams, quickly and with certainty, from that new
lineup as the shooter. A warrant was issued for Williams’s arrest,
4
but he was not apprehended until, almost eight years later, he was
arrested in North Carolina for an unrelated offense and officers
there discovered his outstanding arrest warrant in Georgia.
1. Williams contends that the trial court violated his right to a
thorough and sifting cross-examination when it did not allow him to
show his left arm during the cross-examination of the lead detective.
However, Williams failed to preserve this claim for ordinary
appellate review with an offer of proof, and he failed to show that
there was plain error.
One of Coleman’s friends who was with him at the time of his
murder, Shenard Shears, had seen the shooter about five months
earlier walking on the street and told investigators that he believed
the shooter had a tattoo on his left arm. The lead detective testified
on cross-examination that he never verified whether Williams did in
fact have a tattoo on his left arm. Defense counsel then requested
permission for Williams to stand and show his arm, but the State
objected at a bench conference that defense counsel was “basically
trying to get her client to testify without testifying” in a way that
5
would subject him to cross-examination. Defense counsel responded
that Williams would “take off his jacket and roll up his sleeve” and
she would just ask whether in fact the detective “does see a tattoo
on my client’s arm.” The trial court denied the request “at this time.”
Defense counsel stopped questioning the detective about the tattoo
and made no further request or offer of proof.
(a) A party cannot obtain ordinary appellate review of a trial
court’s ruling excluding evidence unless “the substance of the
evidence was made known to the court by an offer of proof or was
apparent from the context within which questions were asked.”
OCGA § 24-1-103 (a) (2) (“Rule 103 (a) (2)”). See also McGarity v.
State, 311 Ga. 158, 162 (2) (856 SE2d 241) (2021) (“To obtain
ordinary appellate review of a trial court’s ruling excluding
evidence, ‘the substance of the evidence (must have been) made
known to the court by an offer of proof or (been) apparent from the
context(.)’”) (quoting Rule 103 (a) (2)). This rule requires that both
the substance of the evidence in question and the reason for offering
it be made known or be apparent to the trial court. See Williams v.
6
State, 302 Ga. 147, 151 (2) (805 SE2d 873) (2017). This requirement
cannot be met after trial. See United States v. Morrison, 833 F3d
491, 505 (III) (A) (5th Cir. 2016) (“The offer of proof required by
Federal Rule of Evidence 103 (a) (2) is meant to give the trial judge
contemporaneous knowledge about the proposed evidence at the
time it is offered. Presentation of an offer after the trial or on appeal
does not help the trial judge, and is too late.” (citation and
punctuation omitted)).2
2 Rule 103 (a) (2) does not specifically provide, and we have found no
Georgia case that clarifies, the exact time by which an offer of proof must be
made. And there is limited case law on that issue from federal courts, as well
as state courts in jurisdictions that have adopted a similar rule. Some courts
that have addressed the issue require an offer of proof at the time of the trial
court’s ruling, while others allow later offers of proof, but we have found no
cases allowing the offer of proof to be made after trial. See 21 Kenneth W.
Graham, Jr., Federal Practice and Procedure (Wright & Miller) § 5040.2 & nn.
15, 16 (2d ed., Apr. 2023 update) (collecting cases). We look for guidance to
federal authority because the corresponding federal rule includes a provision
materially identical to our Rule 103 (a) (2). See State v. Almanza, 304 Ga. 553,
556 (2) (820 SE2d 1) (2018) (“if a rule in the new Evidence Code is materially
identical to a Federal Rule of Evidence, we look to federal case law”); Walker v.
State, 301 Ga. 482, 488 (3) (801 SE2d 804) (2017) (looking to federal authority
applying the portion of Federal Rule of Evidence 103 that is analogous to our
Rule 103 (a) (2)). And “[i]n the case of conflicts among the decisions of the
various circuit courts of appeals in interpreting the federal rules of evidence,
the precedent of the Eleventh Circuit prevails.” Almanza, 304 Ga. at 559 (3)
(citation and punctuation omitted). The Eleventh Circuit has allowed offers of
proof after the time of the trial court’s ruling, specifically at a conference on
7
In this case, although Williams testified at the hearing on his
motion for new trial that he did not have a tattoo on his left arm, he
did not make the precise, specific content of the evidence known
during trial. See Walker v. Kane, 885 F.3d 535, 539 (II) (A) (8th Cir.
2018) (“stress[ing] the importance of expressing precisely the
substance of the excluded evidence by stating with specificity what
he or she anticipates will be the witness’[s] testimony or, at the trial
court’s discretion, by putting the witness on the stand, outside the
presence of the jury, and eliciting responses in a question and
answer format” (citation and punctuation omitted)); United States v.
Adams, 271 F3d 1236, 1242 (A) (10th Cir. 2001) (“Specificity and
detail are the hallmarks of a good offer of proof of testimony.”);
United States v. Baptista-Rodriguez, 17 F3d 1354, 1372 (V) (B), n.27
evidentiary questions held during the trial, but an offer of proof after trial
would be inconsistent with the Eleventh Circuit’s articulation of the purposes
of the proffer requirement Rule 103 (a) (2) as “to give the trial court a chance
to correct errors which might otherwise require a new trial” and “a chance to
reevaluate [its] ruling in the light of the evidence to be offered.” Murphy v. City
of Flagler Beach, 761 F2d 622, 626 (11th Cir. 1985) (construing Fed. R. Evid.
103).
8
(11th Cir. 1994) (an offer of proof serves the function of informing
the court and opposing counsel of the “precise substance” of the
evidence at issue). 3 Nor was the substance of the evidence otherwise
apparent from the context. To the contrary, what the evidence would
show was not presented to or discussed with the trial court at any
time before or during trial. 4 Any assumption about the condition of
3 See also 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal
Evidence § 1:14 (4th ed., July 2022 update) (Informing the trial court of the
“substance” of the evidence being offered “means spelling out in some detail
what the witness is expected to say, and not simply saying that the witness
will address a certain issue in the case.”).
4 See 1 Mueller, supra at 1:13 (For the substance of the evidence to be
apparent, the context in which questions are asked must make “clear not only
the general subject of the expected response, but the actual tenor or substance
of the response.”); 21 Kenneth W. Graham, Jr., Federal Practice and Procedure
(Wright & Miller) § 5040.4 (2d ed., Apr. 2023 update) (No federal case holds
that the substance of the excluded evidence can be made apparent under
Federal Rule 103 (a) (2) through the use of “illuminating” questions. Instead,
examples of the substance of the evidence being apparent from the context
include “where the evidence has been introduced, then subsequently stricken[,]
the evidence appears in a motion in limine[,] both sides quote from the evidence
during argument on the objection[, or] the substance of the evidence appears
in the trial judge’s ruling.”). Cf., e.g., Hand v. South Ga. Urology Ctr., 332 Ga.
App. 148, 159 (769 SE2d 814) (2015) (on motion for reconsideration) (holding
that despite the lack of a formal proffer, the issue of the propriety of excluding
certain evidence was preserved under Rule 103 (a) (2) where the record was
“replete with discussions between both parties and the trial court” regarding
what the evidence would show), disapproved on other grounds, Philips v.
Harmon, 297 Ga. 386, 398 (II) n.10 (774 SE2d 596) (2015); United States v.
Herrera, 51 F4th 1226, 1286 (8) (A) (1) (10th Cir. 2022) (holding that contents
of recorded statements that were excluded from evidence were apparent from
9
Williams’s left arm would have been purely speculative. The trial
court therefore never had a chance during trial to make a ruling in
light of the evidence to be offered. Accordingly, Williams is limited
to appellate review of this issue only for plain error. See Walker v.
State, 301 Ga. 482, 487 (3) (801 SE2d 804) (2017) (rejecting ordinary
appellate review and relegating appellant to review for plain error
where the substance of the excluded testimony “was not apparent
from the discussion at trial, nor was it made known to the trial court
by an offer of proof”).
(b) To establish plain error, Williams must show that he did
not affirmatively waive the error, that the error is “clear or obvious,
rather than subject to reasonable dispute,” that it “affected [his]
substantial rights,” and that it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” McGarity, 311
the context because the trial court “listened to this recording and discussed its
admissibility”); Frederick v. Swift Transp. Co., 616 F3d 1074, 1083 (10th Cir.
2010) (“[A] proffer of evidence at trial is not needed to satisfy the rule if the
excluded evidence was previously discussed with the trial judge, for example
at the pre-trial conference, so that during trial the judge is well aware of the
content and purpose of the evidence.” (citation and punctuation omitted)).
10
Ga. at 162 (2) (citation and punctuation omitted). “As to the second
part of the test, an error is plain if it is clear or obvious under current
law. An error cannot be plain where there is no controlling authority
on point or if a defendant’s theory requires the extension of
precedent.” Early v. State, 313 Ga. 667, 672-673 (2) (b) (872 SE2d
705) (2022) (citation and punctuation omitted). “To show that an
error affected his substantial rights, [the appellant] must make an
affirmative showing that the error probably did affect the outcome
below.” McKinney v. State, 307 Ga. 129, 135 (2) (b) (834 SE2d 741)
(2019) (citation and punctuation omitted). “Satisfying all four
prongs of this standard is difficult, as it should be. The Court need
not analyze all of the elements of the plain error test when the
appellant fails to establish one of them.” Hooper v. State, 313 Ga.
451, 457 (2) (870 SE2d 391) (2022) (citation and punctuation
omitted).
Williams insists that he himself would not have been testifying
if his counsel had merely asked whether the witness could see a
tattoo on his arm. Williams relies on cases from other jurisdictions
11
to argue that a defendant displaying parts of his body to the jury
would not open the door to his cross-examination. In a Georgia case,
however, our Court of Appeals held that the trial court did not abuse
its discretion in denying the defendant’s request of a police officer
during cross-examination to examine the defendant’s arm and tell
what tattoos he sees because what the defendant sought “was not
related to a legitimate purpose of cross-examination, but to
introduce evidence without the burden of cross-examination.”
Jefferson v. State, 312 Ga. App. 842, 850 (3) (720 SE2d 184) (2011). 5
See also id. at 850-851 (3) (“Overreaching cross-examination may
not be used as a vehicle to enable a party to present non-testimonial
5 Although this holding in Jefferson may be problematic, it is not
inapplicable on the basis that it applied the statutory “right of a thorough and
sifting cross-examination” set forth in former OCGA § 24-9-64. Georgia case
law as to cross-examination pursuant to that former statute still applies under
the same “right of a thorough and sifting cross-examination” in current OCGA
§ 24-6-611 (b). See Parks v. State, 300 Ga. 303, 309 (3) n.6 (794 SE2d 623)
(2016) (noting that a certain case “was decided under the old Evidence Code
pursuant to former OCGA § 24-9-64 (right of a thorough and sifting cross-
examination), but its holding is not contradictory to the newly enacted OCGA
§ 24-6-611 (b)”); Smith v. Laney, 358 Ga. App. 754, 758 (1) (b) n.2 (856 SE2d
355) (2021) (“OCGA § 24-6-611 (b) of our current Evidence Code does not track
the relevant Federal Rule of Evidence but is instead materially identical to the
previous OCGA § 24-9-64, and so our longstanding Georgia case law as to cross-
examination under that statute still applies.”).
12
evidence without being subject to oath, or to subvert the ability of
the opposing party to cross-examine the party proponing such non-
testimonial evidence.” (citation and punctuation omitted)).
This holding of Jefferson may be suspect. However, Williams
has not asked that we overrule Jefferson, and it would make no
difference if he had. See Ellington v. State, 314 Ga. 335, 345 (3) (877
SE2d 221) (2022) (“[T]o the extent that [the defendant’s] appellate
argument is based on his contention that [a certain case] should be
overruled, plain error cannot be based on an extension of existing
precedent, much less on the overruling of existing precedent.”
(citation and punctuation omitted)); Wilson v. State, 312 Ga. 174,
181 (1) (c) (860 SE2d 485) (2021) (“Some of us doubt that [certain
controlling authority] was correctly decided, . . . [b]ut this is not the
case for us to reconsider [that authority], because we are reviewing
[the appellant’s] claim for plain error.”). Because Williams “has
pointed to no [Georgia] precedent holding” that a trial court must
allow cross-examination of a law enforcement officer regarding the
presence or absence of tattoos based on a courtroom examination of
13
the defendant’s arm, and because currently “existing legal authority
stands for the contrary position,” the alleged error “must be
considered subject to reasonable dispute and thus cannot constitute
plain error.” Ash v. State, 312 Ga. 771, 794-795 (5) (a) (865 SE2d
150) (2021) (citation and punctuation omitted). See also Wilson v.
State, 312 Ga. 174, 179 (1) (c) (860 SE2d 485) (2021) (“given current
law supporting the trial court’s [evidentiary] ruling, we cannot say
that the ruling amounted to clear and obvious error beyond
reasonable dispute” (citation and punctuation omitted)). Thus, we
need not consider whether any error probably would have affected
the outcome below or seriously affected the fairness, integrity or
public reputation of judicial proceedings. See Williams v. State, 315
Ga. 490, 496 (2) (883 SE2d 733) (2023) (“We need not analyze all four
prongs because [the appellant] has failed to establish that the trial
court clearly or obviously erred by admitting the . . . evidence.”).
2. Williams also contends that the trial court erroneously
allowed testimony by the lead detective that a person who died
before trial had made a positive identification of Williams when she
14
“pick[ed] out” Williams from a photographic lineup. Williams asserts
that such testimony violated the hearsay rule, see OCGA § 24-8-802,
and the Confrontation Clause contained in the Sixth Amendment to
the United States Constitution. Assuming without deciding that this
issue was properly preserved for ordinary appellate review and that
the admission of the detective’s testimony about the now-deceased
person’s photo lineup identification was not properly admitted, such
error was harmless beyond a reasonable doubt.
Even an error of constitutional magnitude such as a denial of
the right of confrontation may be considered “harmless if the State
can prove beyond a reasonable doubt that the error did not
contribute to the verdict,” as when the evidence in question is
cumulative of other evidence that was either properly admitted,
Armstrong v. State, 310 Ga. 598, 605 (3) (852 SE2d 824) (2020)
(citation and punctuation omitted), or presented without objection
and not challenged on appeal, see Hardy v. State, 306 Ga. 654, 662
(4) (832 SE2d 770) (2019) (holding that even if testimony was
admitted in violation of the Confrontation Clause, it was harmless
15
beyond a reasonable doubt, given other testimony that was
presented without objection and that was not challenged on appeal).
Here, the testimony that the now-deceased person had “picked out”
Williams in the lineup was cumulative of the actual photo lineup
that had been shown to her, on which she circled and initialed
Williams’s photo. The information on that actual photo lineup was
the same as that to which the lead detective testified, but it was
admitted at a later time during the detective’s examination after
defense counsel said that she had “[n]o objection” to its admission.
And Williams does not challenge admission of the actual photo
lineup on appeal. Moreover, several other witnesses also selected
Williams in a photographic lineup and identified him at trial as the
shooter. Indeed, the evidence identifying and inculpating Williams
was strong. We conclude, therefore, that the admission of the
detective’s testimony about the now-deceased person’s out-of-court
identification of Williams was harmless beyond a reasonable doubt.
See McCord v. State, 305 Ga. 318, 324 (2) (a) (i) (825 SE2d 122)
(2019) (holding that even if admission of certain statements violated
16
the Confrontation Clause, any error was harmless beyond a
reasonable doubt because they were cumulative of other statements
made by the same witness and the other evidence against the
defendant was strong).
3. Williams contends that the trial court erred when it failed to
charge the jury on self-defense. He argues that the trial court was
required to give such a charge even without a request because it was
his sole defense and there was at least slight evidence to support it.
Williams, however, has failed to show plain error as it is not obvious
under our precedent that there was slight evidence to support a jury
charge on self-defense.
Regardless of whether self-defense was Williams’s sole
defense,6 “[w]here a defendant does not request that the trial court
give a jury instruction, as [Williams] admits he did not here, this
Court only reviews for plain error.” Munn v. State, 313 Ga. 716, 722
(3) (873 SE2d 166) (2022). “To authorize a jury charge, there must
6 We note, however, that self-defense was not Williams’s sole defense. As
explained in Division 5 (c), infra, Williams presented the defense that he was
not present at the crime scene.
17
be slight evidence supporting the charge.” Id. “In determining
whether evidence supporting a justification instruction was
presented at trial, we can consider only the evidence that the record
shows was actually presented to the jury.” Powers v. State, 297 Ga.
345, 348 (2) (773 SE2d 751) (2015). “A person is justified in
threatening or using force against another when and to the extent
that he or she reasonably believes that such threat or force is
necessary to defend himself or herself or a third person against such
other’s imminent use of unlawful force[.]” OCGA § 16-3-21 (a).
Williams did not testify, no statement of his was admitted into
evidence, and none of the evidence at trial showed that Coleman
threatened or assaulted anyone, that Williams saw Coleman either
reach for the gun that he placed on the table or have it in hand, or
that they fought or struggled with each other. Instead, the
undisputed evidence shows that when Coleman was shot, he was not
facing Williams but was turned more than halfway toward the
opposite direction and was not close to him. Nevertheless, Williams
relies on two witnesses to support his claim that there was at least
18
slight evidence of self-defense.
First, Williams relies on the testimony of Rufus Hammonds,
the owner of the house where the murder occurred, that after
Coleman and his friends came into the house on the day of the
incident, there was some argument and a struggle. But Hammonds
never testified who was involved in the argument and struggle.
Williams also asserts that Hammonds testified the gunshots
happened only after the struggle, but the transcript does not support
that assertion. Indeed, Hammonds never testified when the struggle
occurred; the most that defense counsel could elicit from Hammonds
was an agreement that gunshots went off after the struggle
“according to this” document. The referenced document apparently
was Hammonds’s pre-trial statement, which was being used at trial
to refresh his recollection and which was never admitted into
evidence. On further questioning by defense counsel about whether
Hammonds’s recollection had been “refreshed as to whether or not
there were gunshots after the struggle,” Hammonds testified that
“[t]here were gunshots but I don’t think I was available when it
19
happened.” Thus, while a document not admitted into evidence may
have addressed the timing of a struggle, the admitted testimony
included nothing relevant to such timing. See Rush v. Illinois
Central R. Co., 399 F.3d 705, 717-718 (III) (A) (1) (6th Cir. 2005)
(“[T]he trial court may abuse its discretion when otherwise
inadmissible evidence is introduced to the jury through the guise of
refreshing a witness’s recollection. . . . Rule 612[7] requires a witness
whose memory has been refreshed to testify from his present
recollection, rather than to merely restate the contents of the
writing. . . . It is the witness’s present refreshed recollection—as
opposed to the contents of the writing used to refresh memory—that
is the substantive evidence of the matter at issue.”).
Second, Williams relies on the testimony of Vernice Beard that
right after Coleman took a gun out of his coat, “B” came up and
started shooting. Beard also testified that she was sitting at the
7 Because the rule of evidence in OCGA § 24-6-612 (a) that addresses a
witness’s use of a writing to refresh his memory while testifying is materially
identical to the portions of Federal Rule of Evidence 612 that address the same,
we look to federal case law in construing our own rule. See Almanza, 304 Ga.
at 556 (2).
20
table near Coleman when he took his gun out, that “bullets were
falling out” from somewhere, that she told Coleman “[d]on’t point
that gun over this way,” and that once she said that, “B” came up
and started shooting. Beard never testified that there was an
argument or a struggle, that Coleman pulled a gun on Williams, that
Coleman even knew Williams was back in the house, that Coleman
was going to use the gun, or that he did anything with the gun other
than take it out of his coat. Instead, Beard testified that she did not
know why Coleman took the gun out, that he did not point the gun
at Williams, and that she could not say whether Coleman was
pointing the gun anywhere. Beard’s testimony did not show any
threat or assault or anything more than Coleman’s possession and
handling of a gun and bullets near the time that he was shot, but
rather showed that Williams was the aggressor. See Green v. State,
302 Ga. 816, 817, 818 (2) (a) n.2 (809 SE2d 738) (2018) (holding that
there was no evidence to support a jury instruction on self-defense
where the victim went outside his home with a “big gun” by his side
to meet the defendant, who had accused the victim of stealing from
21
him, but the victim did not attempt to use the gun before the
defendant attacked the victim and a friend of the defendant shot the
victim); Powers v. State, 297 Ga. 345, 349 (2) (773 SE2d 751) (2015)
(“[A] defendant is not entitled to a jury instruction on justification
when the evidence is that the supposedly justified party was the
aggressor.”) (citing OCGA § 16-3-21 (b) (3)); Hunter v. State, 281 Ga.
693, 694-695 (2) (642 SE2d 668) (2007) (holding that nothing in the
evidence warranted a charge on self-defense where the defendant
did not testify, no statement of his was admitted into evidence, no
other evidence contained any version of events from his own
perspective, and there was no evidence of any threat so as to give
rise to a reasonable belief that the defendant must shoot the victim
in the back of the head to avoid death or great bodily injury, even
though testimony showed that the victim possessed a gun before the
shooting); Smith v. State, 267 Ga. 372, 377 (11) n.6 (477 SE2d 827)
(1996) (“[I]t made no difference whether or not the victim had a gun
because there was no evidence that the victim threatened or
assaulted anyone prior to the shooting.”).
22
Williams cites no precedent, and we have found none, requiring
a self-defense instruction under circumstances that are similar to
those presented here. See Davis v. State, 312 Ga. 870, 874 (2) (866
SE2d 390) (2021) (holding on plain-error review that “there was no
obvious error in the trial court’s refusal to give a voluntary
manslaughter instruction” where the appellant cited “no precedent
requiring a voluntary manslaughter instruction under
circumstances similar to those presented” in that case and this
Court found none). In short, it was not obvious or beyond reasonable
dispute that there was at least slight evidence Williams reasonably
believed that shooting Coleman was necessary to defend himself
from any imminent use of unlawful force. See Rodrigues v. State,
306 Ga. 867, 871 (2) (834 SE2d 59) (2019) (“[T]he doctrine of
reasonable fear does not apply to any case of homicide where the
danger apprehended is not urgent and pressing, or apparently so, at
the time of the killing.” (citation and punctuation omitted));
Broussard v. State, 276 Ga. 216, 217 (2) (576 SE2d 883) (2003) (The
trial court properly refused to charge on self-defense where all of the
23
evidence, “including the fact that the fatal wound was to the back,
was consistent with Appellant firing the gun as the victims were
attempting to flee. Therefore, even assuming that [one victim] may
have held the weapon at some point, [the appellant] could not have
been in imminent fear at the time he committed the acts for which
he was being tried.”) (citation omitted). Accordingly, we need not
consider whether any error probably would have affected the
outcome below or seriously affected the fairness, integrity or public
reputation of judicial proceedings, see Williams, 315 Ga. at 496 (2),
and Williams has failed to meet the plain-error test.
4. Williams contends that the trial court erroneously allowed,
over his hearsay objection, the introduction of Coleman’s statements
to his mother that he had been threatened and that he was scared
“of someone named B.” Assuming without deciding that the trial
court erred in admitting into evidence the testimony of Coleman’s
mother about these statements, see Ward, 313 Ga. at 272 (3) (c), that
testimony was harmless because it was cumulative of other
testimony given by Coleman’s mother and Reese. Coleman’s mother
24
testified extensively about how fearful he was after moving back
home, and Reese testified without objection that Coleman stated
“Little B” had “shot at him before” and that Reese knew Coleman
was “scared” when he saw Williams at Hammonds’s house because
Coleman’s “eyes got real big.” Given the strength of the evidence
identifying and inculpating Williams, the cumulative nature of the
testimony about Coleman’s statements to his mother, and the lack
of detail in those statements, any error in admitting them was
harmless. See Jones v. State, 315 Ga. 117, 122 (4) (880 SE2d 509)
(2022) (“A nonconstitutional error is harmless if the State shows
that it is highly probable that the error did not contribute to the
verdict, an inquiry that involves consideration of the other evidence
heard by the jury.” (citation and punctuation omitted)); Ward, 313
Ga. at 272 (3) (c) (Any error in admitting the murder victim’s
statements about her relationship with the defendant and his
pulling a gun on her was harmless where the evidence was largely
cumulative of other evidence and the overall evidence of guilt was
strong.); Davenport v. State, 309 Ga. 385, 391 (3) (846 SE2d 83)
25
(2020) (Error in admitting hearsay testimony regarding the victim’s
statements about the defendant’s threats and physical abuse was
harmless where it was cumulative of other testimony about the
defendant’s abuse and the victim’s fear.).
5. Williams also contends that his trial counsel was
constitutionally ineffective in several ways. To prevail on a claim of
ineffective assistance, a defendant must prove both that the
performance of his lawyer was deficient and that he was prejudiced
by counsel’s deficient performance. Strickland v. Washington, 466
U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To satisfy
the deficiency prong of the Strickland test, the defendant “must
show that his attorney performed at trial in an objectively
unreasonable way considering all the circumstances and in light of
prevailing professional norms.” Lofton v. State, 309 Ga. 349, 360 (6)
(846 SE2d 57) (2020). “This requires a defendant to overcome the
strong presumption that counsel’s performance fell within a wide
range of reasonable professional conduct, and that counsel’s
decisions were made in the exercise of reasonable professional
26
judgment.” Scott v. State, 306 Ga. 417, 419-420 (2) (831 SE2d 813)
(2019) (citation and punctuation omitted). “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.” Thomas v. State, 311
Ga. 706, 714 (2) (a) (859 SE2d 14) (2021) (citation and punctuation
omitted). The defendant must also show that the deficient
performance prejudiced the defense, which requires showing that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U. S. at 694 (III) (B). “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. If an appellant fails to show either deficiency or
prejudice, this Court need not examine the other prong of the
Strickland test. See DeLoach v. State, 308 Ga. 283, 287-288 (2) (840
SE2d 396) (2020). “In reviewing a ruling on a claim of ineffective
assistance of counsel, we defer to the trial court’s findings of fact
unless they are clearly erroneous, but we apply the law to the facts
27
de novo.” Hill v. State, 310 Ga. 180, 187 (3) (b) (850 SE2d 110) (2020)
(citation and punctuation omitted).
(a) Williams contends that his trial counsel rendered
ineffective assistance by failing to admit Williams’s booking
photograph or testimony from his father or any other witness to
prove the absence of tattoos on his left arm. But Williams did not
put any booking photograph into the record in connection with his
motion for new trial. Likewise, Williams failed to proffer any
testimony or affidavit of his father or any witness other than
himself 8 who could have testified at trial about the absence of tattoos
on his left arm. Without any such proffer, we cannot say that no
competent attorney would have made the same decision, under
similar circumstances, not to offer Williams’s booking photograph
into evidence or call a witness to prove the absence of tattoos on his
left arm, and Williams therefore failed to give the trial court any
8 Although Williams testified at the hearing on his motion for new trial
that he does not have a tattoo on his left arm, he does not claim that the
absence of a tattoo should have been proved through his own testimony, and
he has never claimed that his decision not to testify at trial was a result of
ineffective assistance.
28
basis for finding that his trial counsel’s performance was deficient
in this respect. See Foreman v. State, 306 Ga. 567, 570-571 (3) (832
SE2d 369) (2019) (holding that defendant did not show trial counsel
was deficient for failing to call a particular person as a witness and
to put a photograph of that person into evidence, where on motion
for new trial there was no showing of what the person would have
testified and no photograph of the person was put into the record);
Walker, 301 Ga. at 491 (4) (d) (holding that “decisions regarding
which defense witnesses to call are a matter of trial strategy,” and
without showing what the substance of an uncalled witness’s
testimony would be, we could not say that no competent attorney
would have made the decision not to call the witness under similar
circumstances).
(b) Williams contends that he was denied effective assistance
by his trial counsel’s failure to object to one expert’s firearm analysis
report being admitted and testified to by another expert in violation
of the Confrontation Clause contained in the Sixth Amendment to
29
the United States Constitution. 9 We conclude, however, that
because this claim would have required counsel to make an
argument that was an extension of the relevant existing precedent,
she was not deficient.
A firearms and toolmark examiner employed with the GBI,
Julie Riley, was called by the State and qualified as an expert in
firearms science analysis. She explained that when the GBI receives
evidence for firearms analysis, the assigned examiner performs tests
and prepares a report, another trained scientist then examines the
evidence and verifies the initial examiner’s conclusions, and once
verification is complete, the case goes to “peer review,” which is an
“administrative review” to ensure “that the names of the people are
correct, the case numbers are correct, [and] the description of the
evidence is correct,” as well as a “technical review” to ensure that
9 Williams also claims a violation of the hearsay rule, but because he has
failed to explain why the evidence at issue constituted inadmissible hearsay,
he has failed to carry his burden to show deficient performance by his trial
counsel. See Mitchell v. State, 290 Ga. 490, 492 (4) (a) (722 SE2d 705) (2012)
(holding that where the appellant failed to explain why certain evidence
“constituted inadmissible hearsay,” he therefore had “failed to carry his burden
to show deficient performance or prejudice”).
30
“the conclusions drawn are well supported and well documented.”
As the peer reviewer in this case, Riley reviewed the worksheet
prepared by the original scientist, Emily Bagwell, as well as
photographs documenting the identification of the bullets and the
cartridge cases. Riley testified that her conclusions did not differ at
all from Bagwell’s. Bagwell’s signed final report was identified by
Riley and admitted into evidence as a substantive exhibit without
objection. Riley then testified that her conclusions were that
microscopic examination and comparison of the three Winchester
bullets recovered from the crime scene revealed that they were fired
from the same .380-caliber pistol, that microscopic comparison of the
three Winchester cartridge cases revealed that they were fired from
the same .380-caliber pistol, and that it is “very possible” that both
the bullets and the cartridge cases came from the same weapon.
Riley also explained that the three bullets could not have been fired
from a Hi-Point pistol.
In Bullcoming v. New Mexico, 564 U. S. 647 (131 SCt 2705, 180
LE2d 610) (2011), the United States Supreme Court held that the
31
Confrontation Clause does not permit the prosecution to offer into
evidence a “forensic laboratory report containing a testimonial
certification—made for the purpose of proving a particular fact—
through the in-court testimony of a scientist who did not sign the
certification or perform or observe the test reported in the
certification.” Id. at 652. When analyzing and applying the holding
of Bullcoming, this Court has looked to the concurring opinion in
that case, which explained, among other things, that Bullcoming
was “not a case in which the person testifying is a supervisor,
reviewer, or someone else with a personal, albeit limited, connection
to the scientific test at issue.” 10 Bullcoming, 564 U. S. at 672(Sotomayor, J., concurring in part). See also Disharoon v. State, 291
Ga. 45, 47-48 (727 SE2d 465) (2012) (quoting this portion of the
concurring opinion in Bullcoming and stating that “[t]he holding in
Bullcoming was based on the fact that the State’s witness, while
10 Many other courts also have looked to the concurring opinion for the
same purpose. See, e.g., Grim v. Fisher, 816 F3d 296, 308 (III) (C) (5th Cir.
2016); United States v. Curbelo, 726 F3d 1260, 1275 (V) (B) (11th Cir. 2013).
See also 5 Clifford S. Fishman and Anne Toomey McKenna, Jones on Evidence
§ 34A:30 (7th ed., Jan. 2023 update) (collecting cases).
32
generally familiar with the laboratory’s testing procedures, had not
specifically participated in, observed, or reviewed the test on the
defendant’s blood sample”); Taylor v. State, 303 Ga. 225, 230 (4) (811
SE2d 286) (2018) (“someone with a significant personal connection
to the test could testify in lieu of the scientist who actually conducted
it”).
In this case, Bagwell’s forensic report was admitted into
evidence, but Riley testified about her own connection to that report.
Relying on Bullcoming, Williams argues that Riley’s review of
Bagwell’s report was merely administrative and amounted to
proofreading. However, “Bullcoming does not clearly establish what
degree of involvement with the forensic testing, beyond what was
present in Bullcoming, is required of a testifying witness.” Grim v.
Fisher, 816 F3d 296, 307 (III) (C) (5th Cir. 2016). See also id. at 310(III) (D) (holding that “Bullcoming does not clearly establish under
what circumstances the prosecution can introduce a forensic
laboratory report containing a testimonial certification by one
analyst—made for the purpose of proving a particular fact . . . —
33
through the in-court testimony of a technical reviewer,” where the
technical reviewer signed the report and was more involved in the
testing and reporting than was the witness in Bullcoming);
Bullcoming, 564 U. S. at 673 (Sotomayor, J., concurring in part)
(“We need not address what degree of involvement is sufficient
because here [the testifying expert] had no involvement whatsoever
in the relevant test and report.”). And Georgia precedent does not
clearly delineate what degree of involvement the testifying expert
must have to avoid a violation of the Confrontation Clause. More
specifically, there is not yet any Georgia case resolving the issue of
whether the expert’s testimony about the forensic testing was
sufficient to comport with the Sixth Amendment where, as here, she
testified that she conducted a “peer review” including a “technical
review” to ensure that the certifying analyst’s conclusions were
thoroughly supported and documented, reviewed the analyst’s
worksheet and photographs, and came to her own conclusions.
Given the currently existing precedent in Georgia, Williams
has not shown that his trial counsel was deficient in failing to seek
34
an extension of that precedent and argue an unproven theory of law
by asserting below that Bullcoming applied to Bagwell’s report and
to Riley’s testimony in that regard. See Lowe v. State, 314 Ga. 788,
796 (2) (b) (879 SE2d 492) (2022) (“[I]t is well settled that a criminal
defense attorney does not perform deficiently when he fails to
advance a legal theory that would require an extension of existing
precedents and the adoption of an unproven theory of law.” (citation
and punctuation omitted)); Rhoden v. State, 303 Ga. 482, 486 (2) (a)
(813 SE2d 375) (2018) (“Counsel is not obligated to argue beyond
existing precedent.” (citation and punctuation omitted)).
(c) Williams contends that his trial counsel was ineffective for
failing to conduct a thorough investigation by interviewing a
potential self-defense witness, Stanlecia Johnson. At the hearing on
Williams’s motion for new trial, there was conflicting evidence as to
whether his trial counsel was ever given Johnson’s contact
information. But in its order on the motion, the trial court assumed
the truth of the testimony that Johnson’s contact information was
35
provided to counsel. 11 The court then expressly credited counsel’s
testimony that Williams had told her he was not present when
Coleman was murdered. The court went on to find that Williams had
failed to show that his trial counsel had performed deficiently
because Johnson’s potential self-defense testimony would have
placed Williams at the crime scene and identified him as the person
who shot Coleman, and because such testimony would have
contradicted the defense argued at trial that Williams was not
present at the crime scene.12
A close examination of the trial transcript supports the trial
11 Cf. Thurman v. State, 311 Ga. 277, 279 (857 SE2d 234) (2021) (holding
that, where trial court found that trial counsel could not have contacted a
potential alibi witness and that contradictory testimony in that regard was not
credible, court did not err by concluding that counsel was not constitutionally
deficient for failing to investigate or call the witness).
12 During trial, Beard and another witness testified that a woman with
the street name “Hypnotic” was present at Hammonds’s house on the night of
the murder. At the hearing on the motion for new trial, Johnson testified that
she goes by the name “Hypnotic”; that she used to date Williams; that she was
at Hammonds’s house when the shooting occurred; that Coleman and three of
his friends “bum-rushed” past Hammonds after he said they could not come in;
that she saw a gun in Coleman’s hand; that Coleman stood beside the table,
loaded his gun, and racked the slide; that when Williams came back inside, he
and Hypnotic were facing Coleman’s left side; that Coleman pointed his gun at
them but Williams “got off his shot first”; and that it was self-defense.
36
court’s finding regarding the strategic nature of a decision not to
pursue self-defense. Such examination reveals that the defense
presented at trial and counsel’s closing argument – while touching
on matters that could be relevant to self-defense – focused on the
credibility of the witnesses, inconsistencies in their testimony, the
asserted absence of Williams from the crime scene, and alleged
problems with the eyewitness identifications. Presenting this
defense while rejecting an antagonistic defense based on the
potential testimony of a single self-defense witness, especially when
the evidence shows that the victim was shot in the back, does not
reflect a strategy that was “so patently unreasonable that no
competent attorney would have followed such a course,” Thomas,
311 Ga. at 714 (2) (a), and the trial court did not clearly err in finding
that Williams failed to show that his trial counsel’s performance was
deficient. See Muckle v. State, 302 Ga. 675, 680 (2) (808 SE2d 713)
(2017) (holding that counsel was not deficient when he made a
reasonable strategic decision not to call a witness whose testimony
that he did not see the defendant on the night of the crimes would
37
have been inconsistent with the defendant’s statements and would
have conflicted with the defense strategy of convincing the jury that
the defendant was merely present at the crime scene); Carr v. State,
301 Ga. 128, 129-130 (2) (a) (799 SE2d 175) (2017) (holding that it
was a “matter of trial strategy and tactics within the bounds of
reasonable professional conduct” not to call a problematic witness
who had given contradictory statements, but instead to focus on the
defense of mistaken identity and alibi and on inconsistencies in the
eyewitness testimony) (citation and punctuation omitted).
(d) Williams contends that his trial counsel was ineffective
because she failed to request a jury charge on self-defense. For the
reasons set forth in Division 3, supra, it is not clear that Williams
would have been entitled to such a charge. And as just explained in
Division 5 (c), supra, self-defense would have been logically
inconsistent with the defense that counsel presented at trial. Even
assuming that the evidence at trial could have supported a self-
defense charge, that evidence was very slight and weak, and the
strategy of not presenting logically conflicting alternative defense
38
theories was objectively reasonable professional conduct. See Talley
v. State, 314 Ga. 153, 164 (3) (c) (875 SE2d 789) (2022) (“Even
assuming (dubiously) that there was slight evidence to support a
self-defense charge, it was not unreasonable for trial counsel to forgo
a request for that instruction and to instead focus entirely on
arguing that [the appellant] was not involved in the incident at all.”);
Gaston v. State, 307 Ga. 634, 637 (2) (a) (837 SE2d 808) (2020) (“[I]t
is rarely an unreasonable strategy to not pursue defenses that
logically conflict.”). Williams therefore has not shown that his trial
counsel was deficient, and this claim of ineffective assistance fails.
(e) Williams contends that he was denied effective assistance
when his trial counsel failed to visit him enough to prepare his
defense properly. Counsel was appointed in October 2017, visited
Williams in the jail three times before the late November trial, and
testified that she probably spoke to him before and after court
appearances. “As we have explained, there exists no magic amount
of time which counsel must spend in actual conference with his
client, and [Williams] does not specifically describe how additional
39
communications with his lawyer would have enhanced his defense.”
Styles v. State, 309 Ga. 463, 472 (5) (a) (847 SE2d 325) (2020)
(citation and punctuation omitted). See also Gittens v. State, 307 Ga.
841, 843 (2) (a) (838 SE2d 888) (2020) (“Appellant complains that
trial counsel met with him only three to five times before trial, but
‘there exists no magic amount of time which counsel must spend in
actual conference with his client.’” (citation omitted)). Williams also
“has failed to make a proffer showing what evidence or strategy
would have been uncovered through additional consultation.” Tabor
v. State, 315 Ga. 240, 245 (1) (882 SE2d 329) (2022). “Thus,
[Williams] has not sufficiently alleged, much less met his burden to
show, deficient performance by his trial counsel in this regard.”
Blackmon v. State, 302 Ga. 173, 175 (2) (805 SE2d 899) (2017).
6. Williams contends that the cumulative errors in his case
created sufficient prejudice that he must receive a new trial.
However, we have only assumed two errors by the trial court, as
explained in Divisions 2 and 4, supra, and we have identified or
assumed no deficient performance by trial counsel. And “we have
40
repeatedly emphasized that, ‘in the evidentiary context, a defendant
who wishes to take advantage of the cumulative error rule should
explain to the reviewing court just how he was prejudiced by the
cumulative effect of multiple errors.’” Dukes v. State, 311 Ga. 561,
572 (5) (858 SE2d 510) (2021) (quoting Lane; punctuation omitted).
Because Williams has failed to make any substantive argument or
analysis other than the high number of errors that he has
enumerated, “and because no such cumulative prejudice is apparent
to us on this record, this claim fails.” Id. at 573 (5).
Judgment affirmed. All the Justices concur.
41