Reese 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: August 21, 2023
S23A0550. REESE v. THE STATE.
WARREN, Justice.
After a jury trial in May 2018, Larry Reese was convicted of the
malice murder of Claynesia Ringer, possession of a firearm during
the commission of a felony based on shooting Ringer, and possession
of marijuana with intent to distribute. 1 Reese raises three claims of
1 The crimes occurred on August 19, 2015. On May 3, 2016, a Fulton
County grand jury indicted Reese on nine counts: malice murder, three counts
of felony murder, aggravated assault with a deadly weapon, first-degree
criminal damage to property, criminal attempt to sell marijuana, possession of
marijuana with intent to distribute, and possession of a firearm during the
commission of a felony. After a jury trial from May 7 to 11, 2018, Reese was
found guilty on all counts except criminal attempt to sell marijuana and the
felony murder count predicated on it. Reese was sentenced to life in prison for
malice murder, five years consecutive for possession of marijuana with intent
to distribute, and a suspended five-year consecutive sentence for possession of
a firearm during the commission of a felony. The remaining counts were
vacated by operation of law or merged. Reese filed a timely motion for new
trial on May 14, 2018, which he amended three times. The trial court denied
Reese’s motion for new trial, as amended, on February 15, 2022. Reese filed a
timely notice of appeal. This case was docketed in this Court to the April 2023
term and submitted for a decision on the briefs.
error on appeal: (1) that the trial court plainly erred by failing to
instruct the jury on justification, no duty to retreat, and the State’s
burden to disprove affirmative defenses; (2) that the trial court
plainly erred by not giving an accomplice corroboration charge; and
(3) that Reese received constitutionally ineffective assistance of
counsel.
1. (a) Shortly before 3:00 a.m. on August 19, 2015, Ringer was
shot and killed inside a red Nissan Versa parked on the street in
front of Reese’s house. Ringer and Reese knew each other and lived
down the street from each other. Evidence showed that Ringer
borrowed the Versa from a friend and drove it to Reese’s house after
her phone sent text messages to Reese’s phone asking to purchase
marijuana.
The State’s theory of the case was that Reese was a paranoid
drug dealer who shot Ringer after she approached his house in the
early morning hours in the Versa—a car he did not recognize.
Reese’s theory of the case, by contrast, was that Reese shot at the
car in self-defense. That is so, Reese argued, because Ringer, along
2
with an unidentified person (and potentially one of the men she had
spent time and exchanged text messages with earlier that evening),
went to Reese’s house that night to rob Reese under the guise of
purchasing marijuana from Reese. In the course of that attempted
robbery, either Ringer or her companion first shot at Reese before
Reese returned fire in self-defense, shooting and killing Ringer.
(b) The evidence presented at trial showed the following. At
2:49 a.m., Reese’s mother (with whom he lived), called 911 to report
a shooting in front of her house. Police arrived at the scene within
minutes and found Ringer dead in the driver’s seat of a Nissan Versa
in front of Reese’s house. The car was still running, the driver door
was open, and the other doors were closed and locked. The car was
parked directly in front of Reese’s house facing an SUV registered in
Reese’s name. There were multiple bullet holes and defects around
the car’s driver door, including on the door, the doorframe, and the
driver window. Helen Weathers, a forensics supervisor with the
Fulton County Police Department, testified that the hole in the
window was consistent with a bullet traveling through the window
3
from the outside of the vehicle to the inside. The medical examiner’s
office recovered a .45-caliber metal jacket bullet from Ringer’s body
during her autopsy.
Among other things, fifteen one-dollar bills 2 and Ringer’s cell
phone were found inside the car. No gun was found inside the car
or at the scene of the shooting. A pack of cigarettes with Reese’s
fingerprints on it and a few cigarette butts were found near Reese’s
SUV. In Reese’s driveway, officers found a single key. And in
Reese’s front yard, officers found a key ring attached to a bright
yellow tag, which contained a key to Reese’s SUV and to his house.
Five .45-caliber shell casings were found in Reese’s yard.
Officers found two shell casings close to the key ring; the other three
were found days later when officers returned to Reese’s yard with a
metal detector. In addition, officers found two .45-caliber metal
jacket bullets, a metal jacket, and bullet fragments in and around
the Versa. No bullet defects were discovered in cars parked in
2 As noted below, minutes before the shooting, Ringer’s phone sent a text
message to Reese’s phone asking to purchase fifteen dollars’ worth of
marijuana.
4
Reese’s driveway or in the front door of his house. Officers also
noticed surveillance cameras on the outside of Reese’s house pointed
towards his yard: one on the left side of his house and another on
the right side.
Based on the presence of surveillance cameras that might have
recorded the shooting and on Reese’s keys that officers found in his
yard near the .45-caliber shell casings, officers obtained two
warrants to search Reese’s house, one for recorded surveillance
videos and another for firearms. The search yielded, among other
things, a DVR system with recordings from the surveillance cameras
affixed to the outside of Reese’s house, 14.7 ounces of marijuana, a
small scale, and cash. Reese’s fingerprint was found on a bag of
marijuana in the house.
A later search of the contents of Ringer’s cell phone revealed
communications with three phone numbers around the time of the
crimes. One phone number belonged to Reese; another belonged to
Gerald Bell, who lived across the street from Reese and down the
street from Ringer; and another ended in -8146, which Dwoskin
5
Wright, a friend of Ringer’s, identified as his own during an
interview with investigators. 3
Ringer’s phone also showed various text messages and phone
calls with Reese’s phone from around 12:30 a.m. until around 1:30
a.m. on the night of the shooting; the text messages were about
Ringer having sex with one of Reese’s friends and Ringer arranging
for someone to have sex with Reese, each in exchange for money.
The text messages showed that neither arrangement worked out,
and a message was sent from Reese’s phone saying the situation
sounded like a “set up” anyway.
Ringer’s phone received a text message from the -8146 phone
number at 1:24 a.m. saying, “I’m finna pull up.” Ringer’s phone sent
a text message to the -8146 phone number with her address at 2:02
a.m.; at 2:09 a.m. the user of the -8146 phone number communicated
that the user was on the way; shortly afterwards, Ringer’s phone
3 At trial, Wright testified that he had changed his number several times
since the crimes and did not recall having this phone number.
6
and the -8146 phone number exchanged text messages discussing
marijuana.
Ringer’s phone sent a text message to Bell’s phone at 2:30 a.m.,
saying that a friend wanted to purchase a gram of marijuana for ten
dollars. Also at 2:30 a.m., Ringer’s cell phone made a three-second
phone call to Reese’s cell phone.
At 2:31 a.m., Bell’s cell phone responded to the message from
Ringer’s phone asking to buy marijuana, asking, “U gone Kum get
it,” and Ringer’s phone responded saying, “Ya” at 2:40 a.m. Then, at
2:43 a.m., Ringer’s phone sent a text message to Reese’s phone,
asking to buy two grams of marijuana for fifteen dollars, and her
phone called Reese’s phone again at 2:44 a.m., this call lasting for
20 seconds.
Ringer’s phone then received two missed calls from Bell’s
phone number at 2:48 a.m., a text message from his phone number
asking to bring him a “blunt” at 2:49 a.m., and another text message
from his phone number at 3:09 a.m. saying, “Yoo kall me real quick.”
Ringer’s phone also received multiple missed phone calls and
7
FaceTime calls from the -8146 phone number between 2:46 a.m. and
2:59 a.m.
In November 2015, officers finished reviewing the surveillance
videos from outside Reese’s house. The videos included footage of
the shooting, which the two cameras affixed to Reese’s house
captured from different angles. The video recorded from the camera
on the left side of Reese’s house captured what Reese now concedes
is him firing a gun and running across his yard. The video recorded
from the cameras on the right side of Reese’s house captured the
Versa parking in front of Reese’s house, a flash near the road, and
then a larger flash in Reese’s yard. Reese concedes on appeal that
the larger flash was a muzzle flash that resulted when he fired a
gun. 4
(c) Video recordings from the surveillance system were played
at trial. The State played the two surveillance videos portraying the
4 As described in more detail below, Reese contends that the smaller
flash was also a muzzle flash, but that it was from a shot fired by someone
other than him.
8
shooting side-by-side as one exhibit, but the trial court expressly
reserved for the jury the question whether the videos were
synchronized. 5
A GBI firearm examiner, Investigator Jason Roach, testified at
trial about the surveillance videos, explaining that the first flash of
light shown on the camera from the right side of Reese’s house, near
the road, was not “consistent with a muzzle flash” and was “more
consistent” with “a bullet impact.” He also testified that there was
a muzzle flash seen near the person standing in Reese’s yard, which
occurred after the sparks from the “bullet impact.” On cross-
examination, Reese’s trial counsel asked if Investigator Roach could
determine where the gunshot that caused the bullet-impact flash
came from. Investigator Roach testified that if the two surveillance
videos were synchronized, then there was a possibility that the
bullet-impact flash resulted from a gunshot fired by Reese that was
5 As explained more below, Reese contended at trial that the surveillance
videos were not synchronized—in other words, that they were not two videos
taken at the same time showing the same events from two different angles—
and relies on that to support his claim for slight evidence of justification. The
videos were not time-stamped.
9
depicted in the left-side surveillance video. But Investigator Roach
could not rule out that the bullet-impact flash came from a shot fired
“somewhere else that wasn’t captured on video.”
Investigator Roach also explained that he determined the five
.45-caliber shell casings were fired from one gun, and that the three
.45-caliber bullets and the metal jacket were fired from one gun, but
he could not match a bullet fragment recovered from the Versa with
the bullets and the metal jacket recovered from in and around the
Versa or in Ringer’s body because the fragment had been “severely
damaged.” Nor could he determine whether the .45-caliber shell
casings were fired from the same gun as the .45-caliber bullets,
metal jacket, and bullet fragments.
Bell—who lived across the street from Reese and around the
corner from Ringer—testified that he was with Ringer earlier on the
night of the crimes. Specifically, Ringer was at Bell’s house until
around 10:00 p.m. before going home. Closer to 11:00 p.m., Bell went
to Ringer’s house to eat dinner. He returned to his house after
dinner and did not see Ringer again. Bell’s mother, with whom he
10
lived, testified at trial that she heard gunshots that night and that
once police arrived at the crime scene, she “ran downstairs” to wake
up Bell, who was “in his room [a]sleep.” She did not testify about
what time she heard gunshots or woke up Bell.
Bell also testified about his relationship with Reese. Reese
lived across the street from Bell and they had “spoke[n] a few times.”
Bell and Reese did not have “bad blood or anything.” When the State
asked Bell, “Did you by occasion happen to go over to [Reese’s] house
or see [Reese] that day,” Bell responded, “yeah, earlier.”
Ringer’s friend, Wright, testified that, on the night of the
crimes, he borrowed his cousin’s red Nissan Versa to drive to
Ringer’s house. Once Wright arrived around 2:20 a.m., he asked
Ringer to go buy some marijuana. He was going to ride with Ringer
to pick up the marijuana, but Ringer said she wanted go alone, and
Wright let her drive the Versa. Wright heard gunshots within “two
to three minutes” after Ringer left. Sometime after hearing the
gunshots, Wright went to speak with Ringer’s mother, whom he met
that night and with whom Ringer lived, and he tried calling Ringer.
11
Karimah Tarver, Ringer’s mother, lived with Ringer. She
testified as follows. On the night of the crimes, Tarver was in her
bedroom when she heard gunshots. She left her room and spoke to
Wright, who was still in the house. Bell had been at the house
earlier that night to have dinner with Ringer, but had left before the
shooting (although she did not see him leave). On cross-
examination, in response to a question from Reese’s trial counsel,
Tarver agreed that, shortly after the shooting, she told Detective Jeff
Rittberg, the lead investigator, that she “suspected” Bell was
“involved” in the shooting. Tarver explained that her suspicion was
just “what [she] was feeling” and that she “wouldn’t say that” she
suspected Bell was involved.
Detective Rittberg testified that he spoke with Bell’s mother
shortly after the crimes, and Bell was present during the
conversation. Bell did not tell Detective Rittberg that he knew
Ringer, that he was at Ringer’s house on the night before the crimes,
or that he had been communicating with her leading up to her death.
Detective Rittberg acknowledged that Tarver told him that she
12
suspected Bell “was in the vehicle with her daughter” at the time of
the shooting because Bell “was being overly nice” to Tarver. But
Detective Rittberg ruled out Bell as being involved in Ringer’s death
because, based on the evidence he gathered, Bell was at home during
the shooting. Likewise, Detective Rittberg ruled out Wright as a
suspect because Wright was with Tarver at her house during the
shooting.
Reese did not present any witnesses or testify at trial. During
closing arguments, Reese’s trial counsel argued that Reese was
justified in shooting Ringer because the first flash seen on the
surveillance video, which was near the road, showed the ricochet of
a shot fired at Reese by a shooter outside the camera’s view; that
Reese only fired after first being shot at which might show some
“excuse or mitigation” for the shooting; that Ringer, along with
someone else, was trying to rob Reese; and that the absence of shell
casings from more than one gun did not rule out a second shooter
13
because the second shooter could have fired with a revolver, which
would not necessarily have left shell casings at the scene. 6
Reese’s trial counsel also argued that Bell might have been
involved in Ringer’s attempted robbery of Reese. To that end,
counsel contended that, after the car Ringer was driving passed
Reese’s house, Ringer stopped at Bell’s house before turning the car
around, that Bell saw Ringer during this stop, and that Bell texting
and calling Ringer before and after the shooting showed Bell was
lying when he testified that he was asleep during the shooting.
The jury convicted Reese of malice murder, possession of
marijuana with intent to distribute, and possession of a firearm
during the commission of a felony. Reese was sentenced to life in
prison and five years, to be served consecutively.
6 On cross-examination, Investigator Roach testified that semi-
automatic handguns automatically eject shell casings after being fired, but the
only way to eject shell casings from a revolver is for the user to do so manually.
14
2. Reese contends that the trial court erred by not instructing
the jury on justification and no duty to retreat.7 Although Reese
requested these instructions, he did not object to their omission. As
Reese concedes, we review these claims for plain error only. See
Johnson v. State, No. S23A0338, 2023 WL 4091469, at *11 (Ga. June
21, 2023) (reviewing for plain error the trial court’s failure to
instruct the jury on charges requested in writing when the appellant
did not object to the instruction’s omission). And these claims fail
under the third prong of plain-error review because Reese has not
shown that there is a reasonable probability he would have obtained
a better result had the trial court given the jury instructions he
requested.
The plain-error standard has four prongs.
First, there must be an error or defect—some sort of
“[d]eviation from a legal rule”—that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
7 Reese also argues that the trial court plainly erred by not instructing
the jury on the State’s burden to disprove affirmative defenses. But the record
shows that the trial court instructed the jury that the state bore the burden of
disproving affirmatives defenses beyond a reasonable doubt, so this claim
presents nothing for our review.
15
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it “affected the
outcome of the trial court proceedings.” Fourth and
finally, if the above three prongs are satisfied, the
appellate court has the discretion to remedy the error—
discretion which ought to be exercised only if the error
“‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’”
Taylor v. State, 315 Ga. 630, 637 (884 SE2d 346) (2023) (quoting
Gates v. State, 298 Ga. 324, 327 (781 SE2d 772) (2016)). Reese must
satisfy all four prongs to succeed on this claim. But even assuming
that the trial court not instructing the jury on justification and no
duty to retreat was clear and obvious error and that this assumed
error was not affirmatively waived, this claims still fails because
Reese has not shown that the assumed error likely “affected the
outcome” of his trial.
“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
16
force[.]” OCGA § 16-3-21 (a). Relevant here, deadly force is
authorized when the person “reasonably believes that such force is
necessary to prevent death or great bodily injury to himself or
herself or a third person or to prevent the commission of a forcible
felony.” Id. Someone justified in using such force as authorized by
OCGA § 16-3-21 (a) “has no duty to retreat and has the right to stand
his or her ground and use force” as authorized by law. OCGA § 16-
3-23.1. And when a defendant sufficiently raises a justification
defense at trial, “the State bears the burden of disproving the
asserted defense beyond a reasonable doubt.” Gobert v. State, 311
Ga. 305, 309 (857 SE2d 647) (2021) (citation and punctuation
omitted).
Reese’s sole defense at trial was self-defense; his theory was
that someone shot at him first and that he fired the shots that killed
Ringer only in response to someone shooting at him. But the
evidence supporting Reese’s self-defense theory was not sufficiently
strong that the omission of the instructions likely “affected the
17
outcome” of his trial. Munn v. State, 313 Ga. 716, 722 (873 SE2d
166) (2022).
No witness testified that there was more than one shooter at
the crime scene. Investigator Roach did not identify muzzle flashes
from the surveillance video anywhere other than in Reese’s yard.
Investigator Roach also testified that all shell casings recovered
from the scene were fired from a single .45-caliber weapon, and that
all of the bullets recovered from the scene were fired from one .45-
caliber weapon. Detective Rittberg testified that there were no
bullet defects in cars parked in the driveway of Reese’s house or in
the front door to the house, both of which would have been near
where Reese was standing when someone allegedly was shooting at
him, and that no gun was found in the Versa.
Reese nonetheless points to a number of facts that he says
supports his self-defense theory. First, Reese claims that “forensic
evidence” supported the inference that Reese was “on his own
property when the shots were fired.” But even assuming that is
true, that fact does little, if anything, to show whether someone shot
18
at Reese before he fired his weapon. Second, Reese points to the
surveillance video that showed a flash near the road while Reese
was standing in his driveway, which he contends showed a bullet-
impact spark from a shot fired by someone else. However, the mere
possibility that the bullet-impact spark was caused by a gunshot
fired by someone else is not enough given the lack of physical
evidence suggesting there was more than one shooter. And third,
although there was testimony that Tarver once suspected Bell was
involved in Ringer’s death and that he was in the car with her, she
conceded at trial that she had no knowledge to support that theory
and that it was just a “feeling” she had. Moreover, no witness
testified that Bell was seen at the crime scene, Bell’s mother
testified that she found Bell in bed after she heard the gunshots, and
Detective Rittberg testified that, as part of his investigation, he
ruled out Bell’s involvement in Ringer’s death. And even if the
19
evidence had supported Bell’s presence at the scene, that would not
itself prove Reese’s theory that someone else first shot at Reese.8
Because the evidence supporting Reese’s self-defense theory
was weak, we cannot say that the trial court omitting jury
instructions on justification likely affected the trial’s outcome. See
Munn, 313 Ga. at 722 (defendant’s substantial rights were not
affected by not instructing the jury on justification when evidence in
support of the defense was weak); Jones v. State, 310 Ga. 886, 889
(855 SE2d 573) (2021) (harmless error to fail to charge on defense of
self or third person because “evidence supporting a charge on
defense of self or a third person” “was meager at best”).9 And
8 Reese also contends that some of Investigator Roach’s testimony about
flashes seen on the surveillance video supported his theory that the video
showed someone firing at Reese before Reese fired his gun. But Reese does not
accurately recount Investigator Roach’s testimony: although Reese states that
Investigator Roach identified the initial flash as a muzzle flash, his actual
testimony was that the flash was consistent with a bullet striking an object.
9 To support his assertion that omission of these instructions likely
affected the outcome of his trial, Reese points to a number of Georgia appellate
cases he says support his analysis. However, three of those cases did not even
assess the likelihood of any error affecting the result. See Tarvestad v. State,
261 Ga. 605 (409 SE2d 513) (1991), Cadle v. State, 271 Ga. App. 595 (610 SE2d
574) (2005), and Bishop v. State, 271 Ga. 291 (519 SE2d 206) (1999). And in
the fourth, State v. Alvarez, 299 Ga. 213 (790 SE2d 66) (2016), it was
20
because the “no duty to retreat” rule applies when “a person is
otherwise justified in using force,” Arnold v. State, 302 Ga. 129, 132
n.6 (805 SE2d 94) (2017), Reese likewise has not shown that
omitting that instruction likely affected the outcome of his trial.
3. Reese contends that the trial court plainly erred by failing to
instruct that testimony from an accomplice is insufficient to
establish a fact unless it is corroborated. This claim is reviewed for
plain error because Reese did not request the instruction at trial, see
Rutland v. State, 315 Ga. 521, 523 (883 SE2d 730) (2023), and it fails
at the second step because Reese has not shown that the trial court
committed a “clear or obvious” error. Taylor, 315 Ga. at 637.
“A jury instruction on the need for accomplice corroboration
should be given if there is slight evidence to support the charge.”
Stripling v. State, 304 Ga. 131, 136 (816 SE2d 663) (2018) (citation
undisputed that the defendant’s brother had been in a “fist fight” with the
victim immediately before the defendant shot the victim, id. at 214, and
“justification was the critical disputed issue at trial,” id. at 215. Here, by
contrast, little evidence supported the assertion that anyone besides Ringer
and Reese were present at the crime scene, and that in turn supported Reese’s
asserted theory of justification.
21
and punctuation omitted). An accomplice is someone who “shared a
common criminal intent to commit the crimes in question with the
actual perpetrators.” Ash v. State, 312 Ga. 771, 795 (865 SE2d 150)
(2021) (citation and punctuation omitted). “[A]ctions and knowledge
after the commission of the crimes” are not enough to make a
witness an accomplice, but “[a]t best” show the witness is an
“accessory after the fact.” Id.In Reese’s view, the jury could have inferred Bell was his
accomplice to the charge of possession of marijuana with intent to
distribute and to the felony murder of Ringer predicated on that
charge. To support that inference, Reese points to the following
evidence: Ringer’s last accepted phone call was from Bell’s phone
number; Ringer’s phone sent text messages to Bell’s phone about her
purchasing marijuana from Bell; Tarver told detectives that she
suspected Bell was involved in Ringer’s death and in the car when
she died; Bell was evasive when police interviewed him; surveillance
video showing a flash in the street before Reese’s muzzle flash; and
Bell had a motive and opportunity to commit the crimes.
22
But none of the evidence Reese points to amounts to “slight
evidence” that Reese and Bell together possessed marijuana with
the intent to distribute it. At best, he points to text-message
evidence that Ringer was attempting separately to purchase
marijuana from Reese and Bell the night of the crimes. Nor did the
State or Reese argue at trial that Reese and Bell possessed
marijuana with the intent to distribute it together. Accordingly,
Reese has failed to show the trial court erred, much less clearly and
obviously erred, by not instructing the jury on accomplice
corroboration. See Thornton v. State, 307 Ga. 121, 125-126 (834
SE2d 814) (2019) (trial court did not err, let alone plainly err, by not
giving an accomplice corroboration instruction because “[n]one of
the eyewitnesses to the shooting testified that” the defendant and
the alleged accomplice “acted together to” commit the crime, “none
of the evidence supported an inference” they committed the crime
together, and the defendant did not argue they committed the crime
together but instead argued the alleged accomplice committed the
crime and that he was innocent).
23
4. Reese contends that his trial counsel provided ineffective
assistance under the Sixth Amendment to the United States
Constitution in three respects: for failing to (1) move to suppress
unlawfully obtained evidence; (2) request an accomplice-
corroboration instruction; and (3) object to an allegedly improper
sequential jury instruction.
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant. See Strickland v. Washington, 466 U.S. 668, 687 (104
SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356
(689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant
must demonstrate that his attorney “performed at trial in an
objectively unreasonable way considering all the circumstances and
in the light of prevailing professional norms.” Romer v. State, 293
Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466 U.S.
at 687-688. To satisfy the prejudice prong, a defendant must
establish a reasonable probability that, in the absence of counsel’s
24
deficient performance, the result of the trial would have been
different. See id. at 693-694. “If an appellant fails to meet his or
her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.”
Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
Claims of ineffective assistance of counsel involve mixed
questions of law and fact, and “a trial court’s factual findings made
in the course of deciding an ineffective assistance of counsel claim
will be affirmed by the reviewing court unless clearly erroneous.”
Green v. State, 302 Ga. 816, 818 (809 SE2d 738) (2018) (citation and
punctuation omitted). Conclusions of law based on those facts are
reviewed de novo. See Bright v. State, 292 Ga. 273, 274 (736 SE2d
380) (2013).
(a) Reese contends his trial counsel was ineffective for failing
to file a motion to suppress what he says was unlawfully obtained
evidence. Reese specifically argues that the key ring with the yellow
tag and the shell casings recovered from Reese’s yard, as well as the
evidence that Reese’s house was equipped with surveillance
25
cameras, should have been suppressed because they were discovered
during a search of his curtilage that violated the Fourth Amendment
to the United States Constitution. 10 Because Reese has failed to
make a “strong showing” that the trial court would have suppressed
the evidence on the basis that it was obtained during an illegal
search of his curtilage, Tabor v. State, 315 Ga. 240, 249 (882 SE2d
329) (2022) (cleaned up), he has not shown that his trial counsel was
constitutionally deficient for failing to file a motion to suppress on
that basis.
As background, Detective Jeff Rittberg, the lead investigator,
testified at the motion-for-new-trial hearing, as follows. He arrived
at the crime scene around 4:00 a.m.; one officer “made [him] aware
of keys that he had seen in the grass” and another “secure[d] the
10 Reese also argues that, had the trial court suppressed the key ring,
shell casings, and evidence that surveillance cameras were affixed to Reese’s
house, two warrants relying on those items to establish probable cause to
search his house would have been invalid, so the fruits of the search pursuant
to those warrants—i.e., the surveillance recordings, marijuana, a scale, and
cash, among other things—also would have been suppressed. But because we
conclude that Reese has failed to show that any of the evidence establishing
probable cause to search his house would have been suppressed, we need not
address this argument.
26
keys for evidence purposes.” At some point around the time the key
ring was found, he and other officers were standing in Reese’s front
yard, which was visible from two public streets. Although his back
yard was fenced, his front yard was not. Nor was there “any type of
privacy screen or anything else” blocking the yard from view.
Detective Rittberg conducted a “grid search” of Reese’s front
yard “after 5:04 [a.m.],” around two hours after the shooting, and
conducted a “grass canvas” with another officer sometime between
5:00 a.m. and 5:57 a.m. Between 7:30 a.m. and 7:40 a.m., a different
officer found two shell casings; they were found “in close proximity”
to the key ring that was lying in the grass in Reese’s yard. The two
shell casings and the key ring were found near what Detective
Rittberg called a dirt “pad” in Reese’s yard leading to the steps to his
front porch.
Detective Rittberg also testified about the surveillance
cameras on the outside of Reese’s house. Reese’s counsel asked if he
observed the cameras while walking through Reese’s yard, and
27
Rittberg responded that his memory was that the cameras were
“plainly visible from the street.”
In its order denying Reese’s motion for a new trial, the trial
court expressly found that Reese’s “home was on the corner of two
public streets and could be viewed by pedestrians on both streets,”
and that his “front yard was not surrounded by a fence, gate, [or]
privacy screen.” It further found that Reese did not “attempt in any
other way to obscure the front yard from view,” and concluded that
Reese’s yard was not used as an extension of the home.
The Fourth Amendment to the U.S. Constitution provides that
“[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend. IV. Generally speaking,
this means that law enforcement officials must obtain a warrant
before conducting a search that falls within the Fourth
Amendment’s parameters. See Tidwell v. State, 312 Ga. 459, 464
(863 SE2d 127) (2021). But the Fourth Amendment is not
implicated in “all investigations conducted on private property.” See
28
Florida v. Jardines, 569 U.S. 1, 6 (133 SCt 1409, 185 LE2d 495)
(2013) (citing Hester v. United States, 265 U.S. 57 (44 SCt 445, 68
LEd 898) (1924)). To the contrary, the Fourth Amendment
“‘indicates with some precision the places and things encompassed
by its protections’: persons, houses, papers, and effects.” Jardines,
569 U.S. at 6 (quoting Oliver v. United States, 466 U.S. 170, 176 (104
SCt 1735, 80 LE2d 214) (1984)).
The Fourth Amendment’s protection of “houses” includes areas
surrounding a house to the extent that the area is properly classified
as curtilage. See Oliver, 466 U.S. at 180. “[F]or Fourth Amendment
purposes,” curtilage is considered “part of the home itself,” id., and
is defined as “the area ‘immediately surrounding and associated
with the home.’” Jardines, 569 U.S. at 6 (quoting Oliver, 466 U.S.
at 180). The Supreme Court in United States v. Dunn, 480 U.S. 294,
301 (107 SCt 1134, 1139, 94 LE2d 326) (1987), laid out four factors
for courts to “reference” when answering “curtilage questions”: “the
proximity of the area claimed to be curtilage to the home, whether
the area is included within an enclosure surrounding the home, the
29
nature of the uses to which the area is put, and the steps taken by
the resident to protect the area from observation by people passing
by.” That said, the factors are “useful analytical tools only to the
degree that” they bear upon “whether the area in question is so
intimately tied to the home itself that it should be placed under the
home’s ‘umbrella’ of Fourth Amendment protection”; “mechanically”
applying the factors is not a guaranteed method of reaching the
“‘correct’ answer to all extent-of-curtilage questions.” Id. See also
Peacock v. State, 314 Ga. 709, 719 (878 SE2d 247) (2022).
Reese has failed to show that a motion to suppress based on his
proposed curtilage argument would have been successful. See
Tabor, 315 Ga. at 249 (“Where, as here, an appellant claims that
trial counsel was deficient for failing to file a motion to suppress, the
appellant must make a strong showing that the damaging evidence
would have been suppressed had counsel made the motion.”)
(cleaned up). To start, despite Reese’s arguments to the contrary,
Reese has not shown that officers were in his yard, or on any of his
property for that matter, when they discovered the surveillance
30
cameras. To the contrary, Detective Rittberg testified at the motion-
for-new-trial hearing that, to the best of his memory, the
surveillance cameras were “plainly visible from the street.” Reese
has pointed to no contradictory evidence. Because this aspect of his
claim rested on the premise that officers were in Reese’s yard when
they first noticed the surveillance cameras attached to Reese’s
house, that aspect of his claim fails.
As for the key ring and shell casings, Reese has failed to make
a “strong showing” that those items would have been suppressed
based on his argument that the officers who found those items
without a warrant did so in an area that was curtilage. Id. at 249.
Pictures admitted into evidence at trial indicate that the key ring
and shell casings were found in close proximity to Reese’s house, but
no evidence was admitted regarding the exact distance between the
house and the area of his yard where the key ring and shell casings
were found, and Reese did not offer evidence about what the relevant
area of his yard was used for. On this score, the trial court concluded
that Reese’s “front yard was not used as an extension of the home.”
31
Moreover, Reese’s front yard was on the corner of two public streets
and the trial court found that it “could be viewed by pedestrians on
both streets,” that Reese’s “front yard was not surrounded by a fence,
gate, [or] privacy screen,” and that “Reese did not attempt in any
other way to obscure the front yard from view.”
At bottom, Reese introduced very little evidence in support of
this claim at the motion-for-new-trial hearing, and the only fact that
the trial court might have weighed in favor of the relevant area of
Reese’s yard being curtilage was its proximity to Reese’s house. 11
But that proximity was never quantified, and we cannot conclude
that uncertain proximity by itself so clearly established that the
relevant area of Reese’s yard “is so intimately tied to the home itself”
such that the key ring and shell casings likely would have been
suppressed had his trial counsel moved to exclude them. Dunn, 480
11 To be clear, we do not hold that the type of area where the key ring
and shell casings were found could never be curtilage, but rather that Reese
has not met his burden, in the context of an ineffective-assistance claim, to
make the required “strong showing” that the evidence would be suppressed
based on the theory that the area was curtilage. Tabor, 315 Ga. at 249 (cleaned
up).
32
U.S. at 301. See also United States v. French, 291 F3d 945, 952 (7th
Cir. 2002) (“[P]roximity to the home, standing by itself, does not per
se, suffice to establish an area as within the curtilage.”) (citing
Oliver, 466 U.S. at 182 n.12); Jardines, 569 U.S. at 6 (curtilage is
the area “immediately surrounding and associated with the home”)
(quoting Oliver, 466 U.S. at 180) (emphasis supplied); United States
v. Duenas, 691 F.3d 1070, 1081 (9th Cir. 2012) (front yard was not
curtilage when the only factor suggesting the front yard was
curtilage was proximity, and “the front yard was not enclosed; there
was no evidence as to how the yard was used; nor was there any
evidence that the [the defendant] tried to protect the yard from
observation”). Accordingly, Reese has failed to show that his trial
counsel was constitutionally deficient in failing to file a motion to
exclude the key ring and shell casings. See Tabor, 315 Ga. at 249
(to establish trial counsel was deficient in this context, “the
appellant must make a strong showing that the damaging evidence
would have been suppressed had counsel made the motion”) (cleaned
up); Ward v. State, 313 Ga. 265, 275 (869 SE2d 470) (2022) (trial
33
counsel was not ineffective in failing to file a motion to suppress
because it “would not clearly have succeeded.”).
(b) Reese contends his trial counsel provided ineffective
assistance of counsel by failing to request an accomplice-
corroboration charge. His claim fails because, as discussed above in
Division 3, Reese has failed to show that slight evidence supported
an inference that Reese and Bell were accomplices to the charge of
possession of marijuana with the intent to distribute. Therefore,
Reese has not shown his trial counsel was constitutionally deficient
for failing to request an accomplice-corroboration instruction. See
Matthews v. State, 311 Ga. 531, 545 (858 SE2d 718) (2021) (“failure
to make a meritless motion or objection” is not constitutionally
deficient) (cleaned up).
(c) Reese argues that his trial counsel provided ineffective
assistance by not objecting to an allegedly improper sequential jury
instruction. Reese has failed to show his trial counsel was
constitutionally deficient for not objecting to this instruction.
34
The trial court provided the jury the following instructions
about filling out the verdict form:
If, after considering the testimony and evidence presented
to you, together with the charge of the court, you should
find and believe beyond a reasonable doubt that the
Defendant in Fulton County, Georgia, did on or about
August 19, 2015, commit the offense of murder, as alleged
in count 1 of the indictment, you would be authorized to
find the Defendant guilty. In that event, the form of your
verdict would be, “We, the jury, find the Defendant guilty
of murder.” If you do not believe that the Defendant is
guilty of murder, or if you have any reasonable doubt as
to the Defendant’s guilt, then it would be your duty to
acquit the Defendant, in which event, the form of your
verdict would be, “We, the jury, find the Defendant not
guilty of murder.” For each of the following counts, counts
2 through 9 of the indictment, you should follow the same
procedure as described above as to each of said counts.
You must make a determination as to each count
separately. . . .
Whatever your verdict is, it must be unanimous, that is,
agreed to by all of you. The verdict must be in writing and
signed. . .
You’ll have the verdict form out with you. There are, you
know, nine different counts. And as I’ve instructed you,
you’re to consider each one separately. And in count 1, it
has, we, the jury, find the Defendant Larry Reese - and
the first entry is guilty of murder. If you believe the State
proved murder beyond a reasonable doubt, you would
check that.
35
And if you don’t find that the State has carried the burden
of proof on murder, but one of the - you need to determine
whether the Defendant is guilty of the lesser included
offense of involuntary manslaughter 7. And if you find
such, you should check that.
And if you find that the State has failed to prove the
Defendant’s guilt beyond a reasonable doubt, then you
would check number 3, not guilty of murder.
And the same goes for felony murder. There’s also a lesser
included offense here. You need to consider the felony
murder first. If you don’t find that, then you would
consider involuntary manslaughter. If you don’t find
that, then it would be not guilty of murder.
So you follow that course with each count.
“[W]hen the evidence presented in a criminal trial warrants a
jury instruction on a lesser-included offense,” a trial court violates
the rule against impermissible sequential jury instructions “if it
instructs the jury that it may consider the lesser offense only if it
first unanimously finds the defendant not guilty of the indicted
greater offense.” Stewart v. State, 311 Ga. 471, 473-474 (858 SE2d
456) (2021). Reese contends the trial court ran afoul of this rule
when it instructed the jury to “consider felony murder first. If you
don’t find that, then you would consider involuntary manslaughter.”
36
Stewart is instructive here. In Stewart, the appellant
contended that the verdict form the trial court provided the jury in
his case “constituted an improper sequential jury instruction”
because “the trial court instructed the jury of only one circumstance
when it could ‘render verdict’ as to the lesser offense . . . : if it first
reached a ‘verdict,’ which the recited instructions and the verdict
form specified must be ‘unanimous,’ of ‘not guilty’” on the indicted
offenses. Id. at 473, 475. The appellant argued that the trial court
plainly erred in giving that instruction and that his trial counsel
rendered ineffective assistance of counsel for not objecting to it. See
id. at 475-476.
We were unpersuaded. We noted that the appellant had
“cite[d] only one appellate case that actually reversed a conviction
based on an improper sequential jury instruction”—Kunselman v.
State, 232 Ga. App. 323 (501 SE2d 834) (1998)—and distinguished
the facts of Kunselman from the appellant’s. See Stewart, 311 Ga.
at 476 (“In Kunselman, the Court of Appeals rejected an instruction
that, if the jury found the defendant not guilty of the indicted
37
offense, it would ‘then and only then be authorized to consider the
lesser included offense.’ The instructions in this case did not
expressly prohibit the jury from considering the lesser offense unless
it first unanimously found Stewart not guilty of the greater
offenses.”). And we concluded that the appellant’s ineffective
assistance of counsel claim failed because he did not show that,
“under existing precedent,” “the verdict form clearly constituted an
improper sequential jury instruction.” Id. at 477.
Here, like the appellant in Stewart, the only case Reese cites
reversing a conviction based on an improper sequential jury
instruction is Kunselman. 12 And unlike in Kunselman, the trial
court in this case did not “expressly prohibit the jury” from
considering the lesser included offenses until after it reached a
unanimous verdict on the indicted offenses. See Stewart, 311 Ga. at
476. To the contrary, the trial court’s instruction in this case better
12 Reese also cites Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996),
but that case did not involve an improper sequential jury instruction. Instead,
the trial court rejected a jury’s guilty verdict on a lesser included offense
because the jury had not reached a verdict on the indicted offense. See id. at
703.
38
resembles jury instructions we have concluded were not improper
than it resembles the sequential instruction in Kunselman. See,
e.g., Yeager v. State, 274 Ga. 216, 219 (552 SE2d 809) (2001) (“The
jury was instructed to consider the lesser offense of involuntary
manslaughter only if they did not believe beyond a reasonable doubt
that appellant was guilty of malice murder.”); Camphor v. State, 272
Ga. 408, 414 (529 SE2d 121) (2000) (“Should you find the defendant
not guilty of the crime of burglary, you would be authorized to
consider under the evidence whether or not he did, at said time and
place, commit the lesser offense of criminal trespass”). See also
Arrington v. Collins, 290 Ga. 603, 608 (724 SE2d 372) (2012)
(appellate counsel not constitutionally deficient for not raising a
sequential jury instruction argument when the trial court instructed
the jury “‘that it could consider the lesser-included offense of simple
possession if it first found [the defendant] not guilty of trafficking’”
because that instruction was “not substantially different from
charges which have been upheld on appeal”).
39
Reese has “not shown under existing precedent” that the jury
instructions he points to “clearly constituted an improper sequential
jury instruction.” See Stewart, 311 Ga. at 477. And because an
objection to this instruction would have been unsuccessful, Reese’s
trial counsel did not perform deficiently when he did not object. See
Matthews, 311 Ga. at 545 (“failure to make a meritless motion or
objection” is not constitutionally deficient) (cleaned up). 13
Judgment affirmed. All the Justices concur.
13 Reese also argues that the cumulative effect of the errors the trial court
committed affected the outcome of his trial. See State v. Lane, 308 Ga. 10 (838
SE2d 808) (2020). However, we have assumed only one error and identified no
others, so this claim presents nothing additional for us to review. See id. at 17.
40