317 Ga. 842 FINAL COPY
S23A0906. BEARD v. THE STATE.
BOGGS, Chief Justice.
Appellant James Leon Beard III challenges his convictions for
felony murder and a firearm offense arising out of the shooting death
of his wife, Angela Bishop. Appellant contends that the trial court
committed plain error by failing to give the jury a no duty to retreat
instruction and by giving the jury a sequential unanimity
instruction on the lesser offense of involuntary manslaughter.
Appellant also asserts that he was denied effective assistance of
counsel and that the cumulative prejudice from the trial court’s
errors and his trial counsel’s deficiencies entitles him to a new trial.
However, as explained below, Appellant has not demonstrated that
the failure to instruct on no duty to retreat affected his substantial
rights or that the trial court erroneously instructed the jury
regarding the lesser offense, so he has not shown plain error.
Moreover, Appellant has not shown deficiency and prejudice as required to establish ineffective assistance of counsel. Finally, the
cumulative prejudice from an assumed trial court error and
assumed deficiencies by trial counsel does not entitle him to a new
trial. Accordingly, we affirm.1
1. The evidence at trial showed as follows. Appellant and
Bishop began a romantic relationship in 2003 and had four children
together. Appellant and Bishop argued often, which led to physical
altercations. Appellant had moved to the Atlanta area, but Bishop
still lived in South Carolina with her extended family and the
children. Two weeks before the shooting, the couple married.
Bishop and the children visited Appellant in Atlanta every few
weeks, were going to move there, and had plans to visit Appellant
1 The crimes occurred on March 31, 2017. On January 9, 2018, a DeKalb
County grand jury indicted Appellant for felony murder, aggravated assault, and possession of a firearm during the commission of a felony. At a trial from November 1 to 5, 2021, the jury found Appellant guilty of all counts. The trial court sentenced Appellant to serve life in prison for felony murder and a consecutive term of five years in prison for the firearm offense; the aggravated assault count merged. On November 5, 2021, Appellant filed a timely motion for new trial, which he amended on October 18, 2022, and on November 6, 2022. After an evidentiary hearing on November 7, 2022, the trial court denied the motion on March 24, 2023. Appellant filed a timely notice of appeal. The case was docketed in this Court to the August 2023 term and submitted for a decision on the briefs. 2 on the weekend of the shooting. On the night of March 31, 2017,
Bishop and the children arrived at Appellant’s apartment complex
around midnight. The children waited in the car while Bishop went
upstairs to Appellant’s second-floor apartment to see if he was
awake. Bishop knocked on Appellant’s door. Appellant opened the
door, Bishop screamed, and Appellant shot her in the center of her
chest. Appellant then dragged Bishop down the stairs, threw his gun
into the woods behind the apartment building, and put Bishop into
the front passenger seat of her car. A bystander called 911, and the
police arrived as Appellant was attempting to leave in the car with
Bishop and the children. Bishop died from the gunshot wound.
Appellant told the police at the scene that he heard knocking
on his door but that when he looked through the peephole, it was
blocked. Appellant claimed that when he opened the door, “the gun
went off.” Later at police headquarters, Appellant told a detective
that Bishop “slapped” him when he opened the door.
At trial, family and friends of Bishop testified about her
tumultuous relationship with Appellant, including an instance
3 when Bishop said that Appellant choked her until she blacked out
and at least two instances when Bishop said that Appellant
threatened her with a gun. Michelle Deutch, an expert on domestic
violence, testified among other things that displaying a gun can be
a form of intimidation that is consistent with an abusive
relationship. A GBI firearms investigator testified that Appellant’s
gun would likely not fire accidentally.
Appellant testified in his own defense, denying that he ever
initiated a physical fight with Bishop, threatened her with a gun,
choked her, or threatened to kill her. According to Appellant, on the
day of the shooting, Bishop texted him to say that she and the
children were not coming to visit him that weekend. Appellant said
that he was trying to get them to come and that his last text with
Bishop was around 4:00 or 5:00 p.m. when his cell phone ran “out of
minutes.” Appellant testified that between 11:00 p.m. and midnight,
he heard someone moving the doorknob to his apartment and what
sounded like someone trying to kick in his door. Appellant said that
because he was the maintenance man at his apartment complex, he
4 was aware of previous home break-ins and shootings there, and he
claimed that he thought that an intruder was trying to break into
his apartment. Appellant also said that he looked through the
peephole, but the person at the door was covering it, and that he
asked through the door who was there three times, but there was no
response. Appellant testified that he then grabbed his gun, opened
the door, and looked to the right toward the stairs, and that his gun
“went off” when someone “struck” him with “a fist” on the left side
of his face. Appellant further testified that after shooting Bishop, he
dragged her down the stairs because she was too heavy to carry, and
that he was preparing to transport her to the hospital in her car
when the police arrived. According to Appellant, the detective who
interviewed him at police headquarters made comments about his
“face being swollen.”
On cross-examination, Appellant admitted that his gun had
never accidentally gone off before and that when he shot Bishop, he
had his finger on the trigger of his gun and “intended to pull the
trigger.” However, he claimed that he did not know that the person
5 he was shooting was Bishop, whom he said he did not see at all. The
distance between his door and the wall to his left where he claimed
Bishop stood was only about two to two-and-a-half feet.
2. Appellant contends that the trial court committed plain
error by failing to give a no duty to retreat jury instruction.
Appellant did not request such an instruction and did not object to
the jury charge as given. Thus, as Appellant acknowledges, we
review this claim only for plain error. See OCGA § 17-8-58 (b).
The plain-error standard has four prongs. First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal 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 affects the fairness, integrity or public reputation of judicial proceedings.
Reese v. State, 317 Ga. 189, 195 (891 SE2d 835) (2023) (cleaned up).
Appellant must satisfy all four prongs to succeed on this claim. See
6 id.
Trial courts have a duty to ascertain the law applicable to each
case and to instruct the jury accordingly. See Gilchrist v. State, 270
Ga. 287, 288 (508 SE2d 409) (1998). To authorize a jury instruction,
there must be at least “slight evidence” supporting the instruction.
Munn v. State, 313 Ga. 716, 722 (873 SE2d 166) (2022). Appellant
asserts that the trial court obviously erred in failing to instruct the
jury on OCGA § 16-3-23.1, which says:
A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force.
We have explained that such an instruction “is required only when
the issue of retreat is raised by the evidence or placed in issue.”
Whittaker v. State, 317 Ga. 127, 133 (891 SE2d 849) (2023) (cleaned
up).
7 Assuming without deciding that retreat was raised by the
evidence or placed in issue, that the trial court’s failure to instruct
the jury on no duty to retreat was a clear or obvious error, and that
Appellant did not affirmatively waive the error, Appellant has not
shown that the lack of a retreat instruction affected his substantial
rights. Even when retreat is raised by the evidence or otherwise
placed in issue, we have held that reversal is not required for failure
to give an instruction on no duty to retreat when the jury is
otherwise properly instructed on justification and self-defense. See,
e.g., Ballard v. State, 297 Ga. 248, 250-251 (773 SE2d 254) (2015);
Edmonds v. State, 275 Ga. 450, 454 (569 SE2d 530) (2002). Although
some of us question the correctness of that case law, Appellant has
not argued that these cases were wrongly decided, but more
importantly, he has not demonstrated that the lack of an additional
specific instruction on no duty to retreat affected the outcome of his
trial. See Whittaker, 317 Ga. at 134. See also Shaw v. State, 292 Ga.
871, 871, 873-874 (742 SE2d 707) (2013) (affirming conviction
because the defendant “had a fair opportunity to present evidence of
8 his claim of self-defense through his own testimony at trial” and
because “[t]he charges given . . . fairly informed the jury as to the
law of self-defense”).
3. Appellant also claims that the trial court committed plain
error by giving a sequential unanimity jury instruction on
involuntary manslaughter as a lesser offense of murder. However,
Appellant did not object to the jury charge as given. Thus, as
Appellant acknowledges, he must show plain error to obtain a
reversal on this ground. See OCGA § 17-8-58 (b).
We have held that “when the evidence presented in a criminal
trial warrants a jury instruction on a lesser-included offense, the
trial court errs 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). However, “an instruction that tells the jury
that it should consider possible verdicts in a particular sequence is
not an improper sequential jury instruction as long as the
instruction does not insist on unanimity as to a not-guilty verdict on
9 the greater offense before consideration of the lesser offense.” Id. at
474 (cleaned up). In deciding whether the trial court gave an
improper sequential unanimity instruction, we treat a preprinted
verdict form as part of the jury instructions. See Cheddersingh v.
State, 290 Ga. 680, 682 (724 SE2d 366) (2012). Thus, what trial
courts must avoid is “any instruction, including on a verdict form,
that directs the jury to consider the lesser offense only if it first
unanimously finds the defendant not guilty of (reaches a verdict of
not guilty on) the indicted greater offense.” Stewart, 311 Ga. at 475.
After instructing the jury on the definitions of felony murder
and involuntary manslaughter, the trial court gave the following
instruction:
If you do not believe beyond a reasonable doubt that the defendant is guilty of felony murder, but you do believe beyond a reasonable doubt that the defendant is guilty of involuntary manslaughter, then you would be authorized to find the defendant guilty of involuntary manslaughter. And the form of your verdict in that event would be we, the jury, find the defendant guilty of involuntary manslaughter.
Toward the end of the jury charge, the trial court instructed,
10 “Whatever your verdict is, it must be unanimous, that is agreed to
by all of you who are deliberating. The verdict will be in writing, and
it must be signed by your foreperson, dated, and returned to be
published in open court.” The trial court further instructed the jury
on how to fill out the verdict form: “[Y]ou will see on the verdict form
under Count 1, felony murder, then you will see not guilty or guilty.
You need to make a selection there, okay. You will also see
involuntary manslaughter. You will need to make a selection; not
guilty or guilty.” The preprinted verdict form listed the options with
respect to count one as follows:
___ Not Guilty ___ Guilty of Felony Murder ___ Not Guilty of Felony Murder but Guilty of Involuntary Manslaughter
There was no error, much less clear or obvious error, in these
instructions and the verdict form. The instructions and verdict form
did not explicitly require the jury to find Appellant not guilty of
felony murder before considering involuntary manslaughter.
Compare Kunselman v. State, 232 Ga. App. 323, 324-325 (501 SE2d
11 834) (1998) (holding that the trial court erred in instructing the jury,
“[I]f you find the defendant not guilty of burglary, you would then
and only then be authorized to consider the lesser included offense
of criminal trespass on that count.” (emphasis supplied)). The trial
court’s instruction that if the jury did not believe beyond a
reasonable doubt that Appellant was guilty of felony murder, but did
believe beyond a reasonable doubt that he was guilty of involuntary
manslaughter, then it would be authorized to find him guilty of that
crime — along with the direction to make a selection as to each —
was not an improper sequential unanimity instruction. See Reese,
317 Ga. at 203-206 (holding that trial counsel did not perform
deficiently in failing to object when the trial court instructed the jury
to “consider the felony murder first. If you don’t find that, then you
would consider involuntary manslaughter.”); Camphor v. State, 272
Ga. 408, 414-415 (529 SE2d 121) (2000) (no reversible error where
the trial court instructed the jury, “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 . . . commit the
12 lesser offense of criminal trespass.”). See also Jackson v. State, 267
Ga. 130, 133 (475 SE2d 637) (1996) (“We know of no authority which
requires that charges on a lesser included offense . . . precede the
charge on the greater offense.”). The inclusion in the jury charge of
the pattern jury instruction that any verdict by the jury must be
unanimous did not transform the jury instructions and verdict form
into an improper sequential unanimity instruction. See Reese, 317
Ga. at 203-206; Stewart, 311 Ga. at 472-473. Accordingly, Appellant
has failed to demonstrate plain error.
4. Appellant claims that he was denied effective assistance of
counsel in six ways. We disagree.
To establish a claim of ineffective assistance of counsel, a
defendant must prove deficient performance by his counsel and
resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(104 SCt 2052, 80 LE2d 674) (1984). To prove deficient performance,
a defendant must show that his attorney performed his duties in an
objectively unreasonable way, considering all the circumstances and
in the light of prevailing professional norms. See id. at 687-688. To
13 overcome the “strong presumption” that counsel performed
reasonably, a defendant must show that no reasonable attorney
would have done what his attorney did or would have failed to do
what his attorney did not do. Bonner v. State, 314 Ga. 472, 474 (877
SE2d 588) (2022). “In particular, decisions regarding trial tactics
and strategy may form the basis for an ineffectiveness claim only if
they were so patently unreasonable that no competent attorney
would have followed such a course.” Wells v. State, 295 Ga. 161, 164
(758 SE2d 598) (2014) (cleaned up). See also Cannon v. State, 302
Ga. 327, 330 (806 SE2d 584) (2017) (“A strategic decision about what
jury instruction to request will be deemed deficient performance
only if it is patently unreasonable.”). The defendant must also prove
prejudice: that but for his counsel’s unprofessional errors, a
“reasonable probability” exists that the outcome of the proceeding
would have been different. Strickland, 466 U.S. at 694. A
“reasonable probability” is “a probability sufficient to undermine
confidence in the outcome.” Id.
(a) Appellant points first to his trial counsel’s alleged failure to
14 conduct a reasonable investigation into, and to subpoena to testify
at his trial, a potential defense witness. At the motion for new trial
hearing, Appellant presented the testimony of his cousin,
Christopher Woodberry. According to Woodberry, Appellant called
him the day before the shooting, told him that Bishop decided not to
visit for the weekend, and invited him to come over the next day.
Woodberry said that on the night of March 31, 2017, he awoke at
Appellant’s apartment to “violent banging” on the front door that
lasted 12 to 15 minutes. Woodberry claimed that when Appellant
opened the door, “[s]omeone came through and slapped him.”
Woodberry testified that after the shooting, he called 911 and then
fled the scene. Woodberry admitted that Appellant’s trial counsel
had contacted him before the trial and that he refused to speak with
Appellant’s counsel.
Appellant’s trial counsel testified at the motion for new trial
hearing that he made repeated attempts to contact Woodberry
before the trial; that when he eventually spoke to Woodberry,
Woodberry said that he did not want to get involved at Appellant’s
15 trial; and that Woodberry told him, “[Y]ou don’t need me to testify;
I couldn’t help you.” Counsel further testified that he knew
Woodberry and did not think that he would be a credible witness,
and that subpoenaing him and forcing him to testify “would have
been a catastrophe” because he did not know what Woodberry would
say and could not have erased Woodberry’s testimony from the
jurors’ minds once he had elicited it. Counsel also testified that he
had an “in-depth conversation[ ]” with Appellant about Woodberry
and that Appellant ultimately agreed with counsel that Woodberry
should not be called to testify at Appellant’s trial. In its order
denying Appellant’s new trial motion, the trial court found that
Woodberry was not a credible witness, credited trial counsel’s
testimony, and noted that Woodberry was a convicted felon.
Appellant’s claim that his trial counsel failed to reasonably
investigate Woodberry as a potential defense witness was rejected
by the trial court at the motion for new trial hearing. See Kimbro v.
State, 317 Ga. 442, 453 (893 SE2d 678) (2023) (“In reviewing a claim
of ineffective assistance of counsel, we accept the trial court’s factual
16 findings and credibility determinations unless clearly erroneous . . .
.” (cleaned up)). Moreover, Appellant has failed to show that trial
counsel’s decision not to call Woodberry as a defense witness was
objectively unreasonable. See Atkinson v. State, 301 Ga. 518, 526-
527 (801 SE2d 833) (2017) (holding that it was objectively
reasonable for counsel not to call a witness where counsel believed
that the witness might not be credible); Bryant v. State, 298 Ga. 703,
708 (784 SE2d 412) (2016) (holding that trial counsel made a
reasonable strategic decision not to call an “uncooperative alibi
witness” who refused to speak with counsel’s investigator); Fortson
v. State, 280 Ga. 435, 437 (629 SE2d 798) (2006) (holding that trial
counsel was not deficient in not calling a witness who was “not
credible” and would have offered “counter-productive” testimony).
Thus, Appellant has not shown deficient performance.
(b) Appellant points next to his trial counsel’s failure to object
to Deutch’s expert testimony on domestic violence as not within the
proper scope of expert opinion and irrelevant. Specifically, Appellant
asserts that Deutch’s testimony consisted of basic facts that were
17 not beyond the ken of the average layperson and of “irrelevant”
examples that did not relate to the evidence at Appellant’s trial.
During her testimony, Deutch explained that domestic violence
theorists hypothesize that an abuser’s goal is power and control and
that an abuser directs his or her anger and violence toward his or
her partner to control that person. She testified that this theory of
domestic violence, called power and control dynamics, grew out of
the Duluth Project in the 1980s and is widely accepted in her field.
Applying that analytical framework, Deutch referred to the “power
and control wheel,” a diagram that illustrates behaviors that are
characteristic of an abusive relationship. She stated that experts
look for the presence of eight behaviors to identify relationships that
are abusive. For example, Deutch asserted that the display of a
weapon can constitute the abusive behavior of intimidation. Deutch
clarified that not all the behaviors she identified were present in all
abusive relationships.
We assume without deciding that trial counsel performed
deficiently in failing to object to Deutch’s testimony on the two
18 grounds that Beard now raises.2 However, he has failed to show the
required prejudice. The jurors had already heard that Appellant
choked Bishop and threatened her with a gun, so Deutch’s testimony
was largely duplicative and cumulative. Because the evidence was
cumulative, any deficiency in failing to object to the evidence did not
amount to Strickland prejudice. See Eubanks v. State, 317 Ga. 563,
583 (894 SE2d 27) (2023) (“Admitting inadmissible evidence can be
harmless if substantial, cumulative, legally admissible evidence of
the same fact is introduced.” (cleaned up)).
(c) Appellant also points to his trial counsel’s failure to request
a no duty to retreat instruction. However, as explained above,
Appellant has not shown that the lack of such an instruction affected
2 The current statute governing the admissibility of expert testimony in
criminal cases is OCGA § 24-7-702 because the General Assembly repealed former OCGA § 24-7-707 (2013). See Ga. L. 2022, p. 201, §§ 1-2. And as we have explained, although Georgia’s new Evidence Code is applicable to the trial of this case, the evidentiary requirements relating to the admissibility of expert opinion testimony in a criminal case under [former OCGA § 24-7-707 (2013)] are nearly identical to those that applied under the former Evidence Code (OCGA § 24-9-67). Accordingly, it is appropriate to rely . . . on decisions under the old Code. Robinson v. State, 309 Ga. 729, 735 n.2 (848 SE2d 441) (2020) (cleaned up). 19 his substantial rights. Accordingly, he also has failed to show
Strickland prejudice from his trial counsel’s failure to request a no
duty to retreat instruction. See Parker v. State, 305 Ga. 136, 140 n.8
(823 SE2d 313) (2019) (“The test for harm under plain error review
is equivalent to the test in ineffective assistance of counsel cases for
whether an attorney’s deficient performance has resulted in
prejudice of constitutional proportions.” (cleaned up)).
(d) Appellant further points to his trial counsel’s failure to
object to the allegedly improper sequential unanimity jury
instruction on involuntary manslaughter. As discussed above,
however, the jury instructions and preprinted verdict form did not
constitute an improper sequential unanimity jury instruction. Thus,
an objection on this ground would have been meritless, and
Appellant has failed to show deficient performance. See Mann v.
State, 297 Ga. 107, 111 (772 SE2d 665) (2015) (holding that trial
counsel’s failure to object to an instruction was not deficient
performance because “any objection to the instruction would have
been meritless, and the failure to make a meritless objection does
20 not constitute ineffective assistance of counsel”).
(e) Appellant also points to his trial counsel’s decision to
withdraw his request for a jury instruction on defense of habitation.
However, trial counsel testified at the motion for new trial hearing
that based on his decades of experience as a criminal defense
attorney, juries did not favor justification defenses based on a
defense of habitation, and Appellant points to little evidence
supporting that defense. We cannot say that trial counsel’s strategic
decision to withdraw his request for a defense of habitation jury
instruction and instead to pursue a straightforward justification
defense based on self-defense was patently unreasonable. Thus,
Appellant has failed to show deficient performance. See Hendrix v.
State, 298 Ga. 60, 63-64 (779 SE2d 322) (2015) (holding that
experienced trial counsel’s strategic decision to pursue a
misidentification defense over a claim of self-defense that was
contradicted by the evidence was not patently unreasonable); Patel
v. State, 279 Ga. 750, 753 (620 SE2d 343) (2005) (holding that
“experienced trial counsel” made a reasonable strategic decision not
21 to request a defense of habitation instruction “based on counsel’s
assessment of the jury and the evidence”), disapproved of on other
grounds by Gibbs v. State, 303 Ga. 681, 683-684 (813 SE2d 393)
(2018).
(f) Appellant also points to his trial counsel’s successful request
for a jury instruction on an inapplicable subsection of the
involuntary manslaughter statute and his failure to request a jury
instruction on the applicable subsection. Trial counsel
acknowledged at the motion for new trial hearing that he meant to
request a jury instruction on subsection (a) of the involuntary
manslaughter statute but instead mistakenly requested an
instruction on subsection (b), which the trial court gave.3
3 The involuntary manslaughter statute, OCGA § 16-5-3, says:
(a) A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years. (b) A person commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful
22 We assume without deciding that counsel was professionally
deficient in requesting a jury instruction on the wrong subsection of
the involuntary manslaughter statute. However, Appellant has not
demonstrated the required prejudice. As the trial court found in its
order denying the new trial motion, the evidence at trial showed
either that Appellant intentionally fired his gun in self-defense or
that the gun went off accidentally. There was little to no evidence
that Appellant shot Bishop by “consciously disregarding a
substantial and unjustifiable risk” that an act or omission by him
would cause bodily harm with “the disregard constitut[ing] a gross
deviation from the standard of care which a reasonable person would
exercise in the situation,” as required for involuntary manslaughter
based on the misdemeanor crime of reckless conduct. OCGA § 16-5-
60. See Anderson v. State, 302 Ga. 74, 84 (805 SE2d 47) (2017)
manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm. A person who commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner, upon conviction thereof, shall be punished as for a misdemeanor. 23 (noting that “involuntary manslaughter [under OCGA § 16-5-3 (a)]
is inconsistent with both the defense of self-defense and the defense
of accident”).
By contrast, the evidence of Appellant’s guilt of felony murder
based on aggravated assault was strong. There was no physical
evidence that Bishop was trying to break into the apartment at the
time of the shooting or that she was armed; it was highly unlikely
that Appellant did not see Bishop as she stood in the two- to two-
and-a-half-foot space between the doorway and the wall to the left
of the doorway; Appellant dragged Bishop down the stairs after he
shot her; Appellant attempted to hide the gun before the police
arrived; no officer testified that Appellant had any apparent
injuries; and Appellant admitted that he fatally shot Bishop. See
Fuller v. State, 278 Ga. 812, 813-814 (607 SE2d 581) (2005) (holding
that the defendant failed to show Strickland prejudice from trial
counsel’s inconsistent requests to instruct the jury on OCGA § 16-5-
3 (b) and self-defense “given that the victim was unarmed and given
the strength of the evidence that [the defendant] intentionally
24 stabbed the victim for his failure to have her money”). Thus,
Appellant has failed to show prejudice from the assumed deficiency.
5. Finally, citing State v. Lane, 308 Ga. 10, 14 (838 SE2d 808)
(2020), Appellant argues that he is entitled to a new trial due to the
cumulative prejudice from the trial court’s errors and his trial
counsel’s deficiencies. “To establish cumulative error, [the
defendant] must show that (1) at least two errors were committed in
the course of the trial; and (2) considered together along with the
entire record, the multiple errors so infected the jury’s deliberation
that they denied [the defendant] a fundamentally fair trial.” Jackson
v. State, 317 Ga. 95, 107 (891 SE2d 866) (2023).
The prejudice we must consider cumulatively here stems from:
(1) assumed trial court error in failing to instruct the jury on no duty
to retreat; (2) assumed trial counsel deficiency in failing to request
a jury instruction on no duty to retreat; (3) assumed trial counsel
deficiency in failing to object to Deutch’s testimony as not beyond
the ken of the average layperson; and (4) assumed trial counsel
deficiency in failing to request an instruction on the applicable
25 subsection of the involuntary manslaughter statute. The prejudice
from the first two assumed errors is identical: the result of both was
that the jury did not receive a no duty to retreat instruction. See
Priester v. State, 317 Ga. 477, 492 n.20 (893 SE2d 751) (2023). And
that prejudice, combined with the prejudice from other assumed
deficiencies, does not outweigh the strength of the admissible
evidence showing Appellant’s guilt of felony murder based on
aggravated assault. Accordingly, we conclude that the trial court
error and deficiencies by counsel assumed above did not deprive
Appellant of a fundamentally fair trial.
Judgment affirmed. All the Justices concur.
26 Decided December 19, 2023.
Murder. DeKalb Superior Court. Before Judge Jackson.
Matthew K. Winchester; McLendon Law Firm, Jason M.
McLendon, for appellant.
Sherry Boston, District Attorney, Deborah D. Wellborn, Lenny
I. Krick, Andrew M. Healy, Assistant District Attorneys; Christopher
M. Carr, Attorney General, Beth A. Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Chelsea S.
Harvey, Assistant Attorney General, for appellee.