Perryman-Henderson 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
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official text of the opinion.
In the Supreme Court of Georgia
Decided: June 21, 2023
S23A0228. PERRYMAN-HENDERSON v. THE STATE.
PINSON, Justice.
Anthony Perryman-Henderson was convicted of malice murder
and other crimes in connection with the shooting death of Tanaya
Dunlap. 1 On appeal, Perryman-Henderson contends that (1) his trial
1 The crimes occurred on June 13, 2017. On August 31, 2017, a DeKalb
County grand jury indicted Perryman-Henderson for malice murder (Count 1),
two counts of felony murder (Counts 2 and 4), two counts of aggravated assault
(Counts 3 and 7—one against Dunlap and the other against Racquel Eagle),
possession of a firearm by a convicted felon (Count 5), and possession of a
firearm during the commission of a felony (Count 6). Perryman-Henderson was
tried by a jury from July 8 to 15, 2019. The jury found Perryman-Henderson
guilty of all counts. Perryman-Henderson was sentenced to serve life in prison
with the possibility of parole on Count 1, five years in prison on Count 5
concurrent with Count 1, five years in prison on Count 6 consecutive to Count
1, and 15 years of probation on Count 7 consecutive to Count 1, resulting in a
sentence of life plus five years in prison, followed by 15 years of probation. The
remaining counts were merged or vacated by operation of law. Perryman-
Henderson filed a motion for new trial, which he amended through new counsel
on January 9, 2022. Following a hearing, the court denied the motion for new
trial on July 29, 2022. Perryman-Henderson filed a timely notice of appeal. The
case was docketed to the term of this Court beginning in December 2022 and
submitted for a decision on the briefs.
counsel provided ineffective assistance by failing to “correct” the
medical examiner’s testimony about the range the fatal shot was
fired from, and (2) the trial court committed plain error by
commenting on the State’s characterization of the medical
examiner’s range-of-fire testimony in a way that could be taken as
endorsement of it. But Perryman-Henderson failed to establish that
his defense counsel’s relatively thorough cross-examination of the
medical examiner, which elicited testimony favorable to Perryman-
Henderson, fell outside the range of reasonable professional
assistance. And even assuming the trial court’s comment was error
(an issue we do not decide), Perryman-Henderson has failed to
establish that it was plain error because he has not shown how it
affected his substantial rights—particularly given the evidence
against him, which included eyewitness testimony that was not
consistent with his version of events. So we affirm his convictions
and sentence.
1. Early in the morning of June 13, 2017, Dunlap was fatally
shot in the head after an argument with Perryman-Henderson, her
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boyfriend, in a restaurant parking lot. The evidence presented at
trial showed the following.
On the day before the shooting, Perryman-Henderson and
Dunlap drove from Columbus, Georgia to the house where
Perryman-Henderson’s father, Robert Perryman, lived in DeKalb
County. The three spent the evening drinking and “chilling.” At
some point, Perryman-Henderson and Perryman left to get more
alcohol. While out of the house, Perryman-Henderson called his
father’s roommate, Stephen Lewis, and asked Lewis to “put [his
phone] on the charger,” in part because “the mother of my children
used to send random text messages . . . when she know I was with
Ms. Dunlap and I didn’t want her to do that around that time and
let [Dunlap] see it.” The two returned to the house to continue
drinking.
Early the next morning, Perryman-Henderson, Dunlap, and
Perryman took a white car to a nearby restaurant to get something
to eat. Perryman and Dunlap went inside the restaurant, leaving
Perryman-Henderson in the back seat because he “wasn’t coherent
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at all.” Shortly after arriving, Perryman went outside to check on
his son and found him “passed out” in the back seat. While Perryman
was returning to the restaurant, Dunlap walked out to the car. After
about 13 minutes, Perryman left the restaurant again and then
returned shortly with Dunlap. About five minutes later, Dunlap
again left the restaurant and walked to the car.
Reshida Clark, who was in an SUV parked across from the
white car, testified that she saw a man and a woman arguing in the
car. The woman was saying, “let me go, let me go,” and was trying
to get out of the front seat. Clark testified that she “could barely see
inside because the car was foggy,” but “[o]nce [Dunlap] got out, she
reached back in and grabbed something and that’s when she was
shot in the head.” Immediately after the shot, Clark drove away
from the parking lot. After a few minutes, Clark returned to try to
administer medical aid. When she returned, Perryman-Henderson
was pulling out of the parking lot in the white car and screaming,
“[D]id anybody else want to be shot.”
The State also introduced surveillance videos of the parking lot
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and the restaurant’s interior. The videos showed an SUV park
across from a white car. Dunlap walked to the car and stayed there
for several minutes. The videos then showed Dunlap falling to the
ground. The SUV immediately pulled out of the parking lot, and a
minute later, the white car looped through the parking lot and then
left.2
According to the chief medical examiner for DeKalb County,
Another eyewitness, Racquel Eagle, said she saw a couple arguing in
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the parking lot. A man—later identified as Perryman-Henderson—was sitting
in the back seat of a white car, and a woman was trying to get out from the
front seat of the car, but the man appeared to be reaching forward and holding
onto the woman’s hair. The woman then got back in the front seat. At that
point, the man in the back seat pulled out a gun and shot the woman. Eagle
then testified that she and her mother got out of their car because she thought
“he’s going to shoot us next.” She said her mother ran down a hill away from
the parking lot, while Eagle grabbed her baby to run, and that Perryman-
Henderson exited the car, made eye contact with her, and said, “[Y]ou didn’t
see anything.” Eagle said she begged for her life and turned her back to protect
her baby, at which point Perryman-Henderson “pointed the gun at [her].” She
said her mother returned to the parking lot, trying to distract Perryman-
Henderson, who turned and pointed the gun at her mother, “going back and
forth between the both of us.” Eagle testified that a teenager then exited the
restaurant, and Perryman-Henderson pointed the gun at her as well.
Perryman-Henderson then drove around the parking lot, looking out the
window, before leaving. The surveillance videos, which were played for the
jury, do not appear to show Perryman-Henderson getting out of the car and
pointing his gun at anyone, or anyone running down a hill. The videos do show
two women running into the restaurant carrying two small children less than
a minute after the white car left.
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Dunlap was shot once on the left side of her head between her
eyebrow and hairline. The shot was “at a straight line” with “no
angulation.” The medical examiner gave an “estimate” that, given
the degree of stippling (abrasions from gunpowder particles) and
absence of soot, Dunlap was “probably . . . 2 to 3 feet away from the
muzzle of the gun” when she was shot. He added that soot might be
deposited from a foot or “sometimes 15 inches” away, but “not very
often any further than that.” He also testified that soot can be
washed away, including by blood, but stippling cannot. Finally, the
medical examiner classified the death as a homicide. He explained
that it was unlikely that Dunlap shot herself, because to produce the
stipple pattern around her wound, she would have had to stretch her
arm “all the way out” to its full length of 20 to 24 inches and then
turn her hand around and pull the trigger.
Perryman-Henderson testified in his own defense. He said that
he “passed out” at his father’s house, then was asleep in the back
seat of the white car, but did not know how he got there. While in
the parking lot, he remembered Dunlap shaking him awake and
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waving his phone in his face, talking about a text message before
leaving. He fell back asleep before being woken up again by Dunlap,
who slapped him. He recalled “grabbing her hair,” and said that she
grabbed his hair at the same time, but then let it go as she opened
the car door. He then saw the front door open, and Dunlap reach in
with a gun in her hand. Perryman-Henderson testified that he
reached over and grabbed Dunlap’s hand, “and I heard a gunshot go
off.” He said “[i]t was a struggle . . . it wasn’t nothing intentional,”
and “we both had possession of [the gun]. I never had full possession
of the gun.” Perryman-Henderson then said his next memory was
waking up later that morning in Columbus, with his phone
“completely wiped clean.” The white car and gun were never found.
2. Perryman-Henderson contends that his trial counsel
provided ineffective assistance by failing to correct critical range-of-
fire testimony by the medical examiner that counsel knew to be
erroneous. He says that before trial, counsel learned that the range
of fire was “anywhere from 1 to 3 feet,” but he did not correct the
medical examiner’s “2 to 3 feet” estimate at trial.
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To prevail on a claim for ineffective assistance, a defendant
must show that his counsel’s performance was professionally
deficient and that he suffered prejudice as a result. See Strickland
v. Washington, 466 U.S. 668, 687-694 (III) (A)-(B) (104 SCt 2052, 80
LE2d 674) (1984). We need not “address both components of the
inquiry if the defendant makes an insufficient showing on one.” Lee
v. State, 314 Ga. 724, 727 (1) (879 SE2d 416) (2022) (citation and
punctuation omitted).
To show that counsel performed deficiently, a defendant “must
demonstrate that the lawyer performed his duties in an objectively
unreasonable way, considering all the circumstances and in the light
of prevailing professional norms.” Washington v. State, 313 Ga. 771,
773 (3) (873 SE2d 132) (2022) (citation and punctuation omitted).
There is a “strong presumption that counsel performed reasonably,”
and a defendant must overcome the burden by showing “that no
reasonable lawyer would have done what his lawyer did, or would
have failed to do what his lawyer did not.” Id. (citation and
punctuation omitted). In particular, “[d]ecisions regarding trial
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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.” Id. (citation and
punctuation omitted). “The scope of cross-examination is grounded
in trial tactics and strategy, and will rarely constitute ineffective
assistance of counsel.” Bonner v. State, 314 Ga. 472, 476 (2) (877
SE2d 588) (2022) (citation and punctuation omitted). See also Payne
v. State, 314 Ga. 322, 332 (3) (f) (877 SE2d 202) (2022) (“Decisions
about what questions to ask on cross-examination are quintessential
trial strategy and will rarely constitute ineffective assistance of
counsel.” (citation and punctuation omitted)). And “[d]ecisions about
cross-examination do not amount to deficient performance unless
they are so unreasonable that no competent attorney would have
made them under similar circumstances.” Bonner, 314 Ga. at 476 (2)
(citation and punctuation omitted).
To show prejudice, a defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Evans v. State, 315 Ga.
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607, 611 (2) (b) (884 SE2d 334) (2023) (citation and punctuation
omitted). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Lee, 314 Ga. at 727 (1)
(citation and punctuation omitted).
Perryman-Henderson has not established that his trial counsel
performed deficiently here with respect to the range-of-fire estimate.
Trial counsel cross-examined the medical examiner about his range-
of-fire estimate for some time. The medical examiner had testified
that he estimated the gun was fired from two to three feet away from
Dunlap because of the presence of stippling and absence of soot. But
trial counsel was able to elicit from him that any soot could have
been washed away or captured by Dunlap’s hair (which was removed
for the autopsy), which would make the possible range of fire closer.
He was also able to elicit testimony that, given the caliber of the
bullet, the gun used would have had less gunpowder and thus
produced less soot than other guns. The medical examiner also
repeatedly testified on cross-examination that the ranges he gave
were estimates and not exact. In short, trial counsel elicited from
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the medical examiner on cross-examination that the soot could have
been washed away, and that the gun could have been fired from
closer than two to three feet. Those acknowledgements were
favorable to Perryman-Henderson’s defense, and although
Perryman-Henderson argues otherwise, the gist of the medical
examiner’s testimony at trial was not substantially different from
his testimony at the motion-for-new-trial hearing, where he testified
that he “couldn’t rule [] out” that the gun could have been as close
as 12 inches, but that “it’s more likely that [the gun] was farther
away [than 12 to 15 inches].” Perryman-Henderson has not shown
that counsel’s performance in cross-examining the medical examiner
was “so unreasonable that no competent attorney” would have acted
as he did. Bonner, 314 Ga. at 476 (2). This claim thus fails.
3. Perryman-Henderson contends that the trial court erred by
commenting on the evidence. The following colloquy took place
during the State’s cross-examination of Perryman-Henderson:
[THE STATE]: [The medical examiner] was here and he
testified. You heard his testimony was based on the injury
and the stippling that the weapon was at least 2 to 3 feet
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away. You heard that testimony, right?
[DEFENSE COUNSEL]: Objection, your honor.
THE COURT: What’s the objection?
[DEFENSE COUNSEL]: It’s obvious they were inside the
car. I mean do we—
THE COURT: No, no, no, no. What’s the legal objection to
the question?
[DEFENSE COUNSEL]: It’s causing him to make a
legal—
THE COURT: I don’t think we are there yet. She just—
she’s asked a question about whether he heard the
medical examiner’s testimony about the—
[DEFENSE COUNSEL]: That was the estimate.
THE COURT: Okay.
[DEFENSE COUNSEL]: So, it wasn’t—
THE COURT: Okay. The objection is overruled. That’s the
question right now.
Yes is the answer, he did hear the medical examiner
testify that way.
Perryman-Henderson contends that during this colloquy the trial
court’s statement, “Yes is the answer, he did hear the medical
examiner testify that way,” impermissibly endorsed the State’s
characterization of the medical examiner’s range-of-fire testimony
as putting the gun “at least” two to three feet away from Dunlap.
See OCGA § 17-8-57 (a) (1) (“It is error for any judge, during any
phase of any criminal case, to express or intimate to the jury the
judge’s opinion as to whether a fact at issue has or has not been
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proved or as to the guilt of the accused. . . .”).
Because trial counsel did not object to the trial court’s comment
at trial, this claim is reviewed for plain error only. See id. § 17-8-57
(b) (alleged violations of subsection (a) (1) not objected to at trial are
reviewed only for plain error, subject to an exception not relevant
here). To show plain error, Perryman-Henderson must show that
“(1) the alleged error was not affirmatively waived, (2) it was obvious
beyond reasonable dispute, and (3) it affected the appellant’s
substantial rights, which ordinarily means showing that it affected
the outcome of the trial.” Moore v. State, 315 Ga. 263, 272-273 (4)
(882 SE2d 227) (2022). If a defendant makes that showing, the
appellate court has the discretion to remedy the error only if the
error “seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” Id. at 273 (4) (citation and punctuation
omitted).
Assuming without deciding that the court’s comment violated
OCGA § 17-8-57, Perryman-Henderson has not established that this
passing comment affected his substantial rights. See Shaw v. State,
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292 Ga. 871, 873 (2) (742 SE2d 707) (2013) (“[P]lain-error analysis
. . . requires the appellant to make an affirmative showing that the
error probably did affect the outcome below.” (citation and
punctuation omitted)). Perryman-Henderson argues that the range-
of-fire evidence was the only credible evidence that contradicted his
testimony, and the court endorsed a characterization of this
evidence that ruled out his version of events—that is, that Dunlap
shot herself. But this argument significantly overstates the possible
import of the court’s comment. To begin with, the court’s comment
did not explicitly weigh in on the credibility of the expert or whether
a particular fact had been proved—the court said only that “he did
hear the medical examiner testify that way.”3 Moreover, Perryman-
Henderson does not dispute that, although the medical examiner
left open the possibility that the gun could have fired from 15 inches
3 The court also later instructed the jury,
By no ruling or comment that I have made during the progress of
this trial have I intended to express opinion upon the facts of this
case, the credibility of the witnesses, the evidence, or the guilt or
innocence of the defendant. Your verdict should be a verdict based
upon your opinion of the evidence according to the law that I have
just given you in the charge.
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away, the record shows that his consistent opinion based on the
evidence was that it was probably fired from “2 to 3 feet”—a
conclusion that still would have ruled out Dunlap having shot
herself. And in any event, other evidence at trial beyond the range-
of-fire testimony undermined Perryman-Henderson’s story: An
eyewitness whose testimony was corroborated in large part by
surveillance video testified that she did not see a struggle over the
gun like Perryman-Henderson claimed, and she heard him say,
“[D]id anybody else want to be shot” right after Dunlap was shot.
And the medical examiner also testified that, although he could not
rule out a struggle, Dunlap had no injuries that would have
indicated that she was in a struggle before she was shot. As a whole,
the evidence of Perryman-Henderson’s guilt was strong and
inconsistent with Perryman-Henderson’s version of events, which
was that a mutual struggle in the car involving the gun caused the
gun, held by Dunlap, to go off.
Given the above, Perryman-Henderson has not shown that the
outcome of his trial probably would have been different had the jury
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not heard the trial court’s passing comment—in other words, that it
would have affected his substantial rights. See Merritt v. State, 311
Ga. 875, 889 (6) (860 SE2d 455) (2021) (holding that the defendant
failed to show the outcome of his trial would have been different had
certain evidence been excluded when the State presented additional
evidence that contradicted his defense). This claim therefore fails.
Judgment affirmed. All the Justices concur.
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