319 Ga. 573 FINAL COPY
S24A0642. BOWMAN v. THE STATE.
MCMILLIAN, Justice.
Appellant Roe Dale Bowman was convicted of malice murder
and other crimes in connection with the death of Tammy Wolfe.1 On
appeal, he argues that trial counsel was constitutionally ineffective
on numerous grounds and that the trial court abused its discretion
in admitting evidence of Bowman’s prior acts of violence involving
his ex-wife. For the reasons that follow, his claims fail, so we affirm.
1 The crimes occurred on April 4, 2017. On March 19, 2018, Bowman was
indicted for malice murder; felony murder; two counts of aggravated assault; and possession of a firearm during commission of a felony, in connection with Wolfe’s death. At a trial in March 2020, the jury found Bowman guilty of all counts. On March 31, 2020, the trial court sentenced him to serve life in prison without the possibility of parole for malice murder (Count 1), and five years in prison consecutive to Count 1 for the possession offense (Count 5). The felony murder count (Count 2) was vacated by operation of law, and the aggravated assault counts (Counts 3 and 4) merged into the malice murder count for sentencing purposes. On April 30, 2020, Bowman filed a motion for new trial through new counsel. He amended that motion on March 31, 2021. The trial court held a hearing on the amended motion from August 11 to August 12, 2022, and denied the motion in an order dated September 28, 2023. On October 30, 2023, Bowman timely filed a notice of appeal. This case was docketed to the term of Court beginning in April 2024 and submitted for a decision on the briefs. 1. The evidence at trial showed the following. For a few years
before her death, Wolfe and Bowman had been in a romantic
relationship, throughout which they would ride motorcycles and
take trips together. At one point, the two got engaged, but their
relationship was tumultuous. Multiple witnesses testified about
instances where Bowman treated Wolfe in jealous, violent, or
controlling ways. One of Wolfe’s brothers testified to an instance
where Bowman argued with Wolfe for not holding his hand on a
street in Florida. Another one of Wolfe’s brothers recounted that
once after a friend hugged Wolfe from behind, Bowman grabbed
Wolfe’s arm “really, really hard” and said “I can’t believe you turned
your back on me like that.” An acquaintance of Wolfe’s mom
observed Bowman “take [Wolfe] by the arm and pull her towards the
door” when she wanted to stay at a flea market against Bowman’s
wishes and “slap” Wolfe “if she looked at somebody else for
anything.” The same acquaintance testified that Bowman “wouldn’t
think twice about balling his fist up and hitting [Wolfe] right in the
eye,” and that Wolfe had “[b]lack eyes, busted lips” and bruises on her arms and wrist, which gave the acquaintance further concern
about Bowman and Wolfe’s relationship. One of Wolfe’s work
colleagues testified that Wolfe had confided in her that Bowman
would follow Wolfe; that once in Florida, Bowman had pushed Wolfe
down on a bed and choked her; and that Wolfe was afraid to end her
relationship with Bowman because he had told her that “he could do
something to her and get rid of her and . . . nobody would ever prove
anything[.]”
Eventually, Wolfe broke off the engagement and started dating
another man. Wolfe and Bowman continued to communicate,
however, texting and calling each other in the days leading up to
Wolfe’s death. According to Wolfe’s son, Jesse Wolfe (“Jesse”),
Bowman would stalk Wolfe after the engagement ended, including
at a Walmart, at a convenience store, near Jesse’s grandparents’
house, and near where Wolfe checked the mail. Jesse recounted
Wolfe telling him that even after she “changed her routine,”
Bowman would still be “waiting on her.” At one point, Jesse testified,
he “confront[ed] [Bowman] about stalking [his] mother,” and told Bowman that “he needed to leave her alone and just be done with
it.”
On April 4, 2017, at 5:28 a.m., Wolfe’s cell phone texted
Bowman’s cell phone, “Good morning.” Bowman’s phone did not
reply.2 Eleven seconds later, Wolfe texted “Good morning” to another
cell phone ending in the digits 7925 (“-7925 phone”), which texted
Wolfe’s phone “Good morning” at 5:30 a.m. The -7925 phone then
called Wolfe’s phone at 5:30 a.m., and Wolfe’s phone called the -7925
phone at 5:33 and 5:58 a.m. Cell tower data showed that at 5:33 and
5:58 a.m., Wolfe’s phone and the -7925 phone used the same cell
phone towers and sectors3 angling toward a cemetery where Wolfe
was later found dead. As cell tower data suggested, Wolfe’s phone
arrived at the cemetery at about 6:05 a.m. Between 6:07 and 6:08
2 It appeared that Bowman’s cell phone never responded to Wolfe’s “Good
morning” text. Also, although Wolfe sent “Good morning” to Bowman’s cell phone at 5:28 a.m., his phone did not receive the text until 6:39 a.m. A law enforcement officer testified that this meant that between 5:28 a.m. and 6:39 a.m., Bowman’s cell phone might have been turned off, on “airplane mode,” out of battery, or in an area “not covered by cell phone service.” 3 Detective Scott Demeester testified that a cell phone tower covers a
360-degree radius, of which a “sector” covers a 120-degree radius showing the direction a cell phone is relative to the tower. a.m., Wolfe’s phone began moving away from the cemetery, traveling
east and then south, the same direction as Bowman’s residence. At
6:13 a.m., the last time at which law enforcement documented data
activity from Wolfe’s phone, her phone disconnected from the cell
tower network. Cell tower data indicated that right before
disconnecting, Wolfe’s phone was close to a body of water and a
wooded area. Neither Wolfe’s phone nor the -7925 phone was ever
recovered by law enforcement. “The last location we had of both cell
phones pinging . . . [was] beside the pond,” one law enforcement
officer testified, and the last communication documented for both
phones was the 5:58 a.m. call.
According to Detective Scott Demeester, an expert in cell phone
forensics, the -7925 phone was a prepaid phone that lacked
subscriber information and started service on March 9, 2017, about
a month before the murder; was “not used very often” and “primarily
communicated with the decedent”; and made or received only 11
calls from March 28 to April 7, 2017, communicating with Wolfe’s
phone for eight of those calls. And, Detective Demeester testified, in the weeks leading up to Wolfe’s murder, the cell tower most
frequently used by both the -7925 phone and by Bowman’s phone
was the same.
Later on the morning of April 4, family and friends started to
wonder where Wolfe was. Her son Jesse called Bowman at 9:49 a.m.
to ask him if he had seen Wolfe, to which Bowman replied he had
not. In the following hours, Bowman’s cell phone began contacting
Wolfe’s phone several times, starting from 10:01 a.m.
At about 1:00 p.m., the cemetery’s general manager discovered
Wolfe’s dead body covered in blood in the driver’s seat of her car with
the driver’s side window down. An autopsy later revealed that she
had gunshot wounds to her head and neck and stab wounds in her
neck and chest. On the windshield were the letters “R” and “O”—the
first two letters of Bowman’s first name, “Roe”—written in blood.
Law enforcement did not find a murder weapon but found Wolfe’s
purse inside the car, as well as shell casings and .22-caliber bullets
on the ground next to the driver’s side window. Male non-blood DNA
(“contact DNA”) found on Wolfe’s purse did not match the DNA of Bowman or an officer at the scene, and DNA tests conducted on
blood droplets found on and near the car were inconclusive.
After visiting the crime scene, law enforcement also began
interviewing members of Wolfe’s family. Through that investigation,
law enforcement discovered Wolfe’s cell phone number and obtained
records from the provider, which led to the discovery of Wolfe’s
contacts with the -7925 phone on the day of her murder. Wolfe’s son
Jesse was able to log into Wolfe’s Google account and sync her
contact list to his phone. Entering digits from the -7925 phone
number into Jesse’s phone, an investigator found that the -7925
number had been saved in Wolfe’s contacts as Bowman’s first name
(“Roe”) and “FS Phone”—“Roe FS Phone.”4
Officers interviewed Bowman, once on April 6 and once on
April 7, 2017. In Bowman’s first interview, officers talked to
4 Seeking to discredit this evidence, Bowman points to Jesse’s testimony
on cross-examination that when he logged into his mother’s Google account a few months after April 4, 2017, “the contacts had disappeared. I mean . . . I don’t know where they went.” But this point is of no avail; law enforcement saved a screenshot of the -7925 phone number matching with “Roe FS Phone,” and the screenshot was admitted as evidence. Bowman about his relationship with Wolfe and asked him about his
phone; he stated that he broke off the engagement and that he had
one phone, which he then handed to the officers. In his second
interview, officers asked Bowman to speak further about his
relationship with Wolfe and asked him if he had a second phone. He
stated that he and Wolfe ended their relationship because “she
didn’t want to be friends with benefits anymore.” And, he stated that
he had a “food stamp” phone, which made, as an officer testified at
trial, “the letters FS [become] pretty significant[.]” Bowman later
gave law enforcement a phone that he claimed was the “food stamp”
phone. Officers did not find information on that phone linking
Bowman to the murder, and the number for that phone was not the
same as the one saved in Wolfe’s contacts as “Roe FS Phone.” At one
point, Bowman also told police that he did not “carry any weapons”
due to a medical condition, but that he did have a knife, which police
found in his truck. After the grand jury indictment, when law
enforcement officials arrested Bowman and executed a search
warrant on his residence, they found Bowman carrying a firearm on his side and a sheath knife on a lanyard around his neck, and found
another sheath knife in his house.
2. Bowman claims his trial counsel provided constitutionally
ineffective assistance on five grounds. To prevail on an ineffective
assistance claim, Bowman must show that counsel’s performance
was deficient and that the deficient performance prejudiced the
defense. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984). To prove deficiency, Bowman must
show that counsel “performed his duties in an objectively
unreasonable way, considering all the circumstances and in the light
of prevailing professional norms[.]” Scott v. State, 317 Ga. 218, 221
(2) (892 SE2d 744) (2023) (citation and punctuation omitted). To
prove prejudice, Bowman “must establish a reasonable probability
that, in the absence of counsel’s deficient performance, the result of
the trial would have been different.” Moulder v. State, 317 Ga. 43,
47 (3) (891 SE2d 903) (2023). If Bowman “fails to make a sufficient
showing on one part of the Strickland test, we need not address the
other part.” Copeland v. State, 316 Ga. 452, 457 (3) (888 SE2d 517) (2023). And, “[i]n reviewing a trial court’s ruling on an ineffective-
assistance claim, we accept the trial court’s factual findings and
credibility determinations unless they are clearly erroneous, but we
independently apply the relevant legal principles to the facts.” Id.
With this framework in mind, we assess each of Bowman’s
ineffective-assistance arguments.
(a) Bowman first claims that counsel was ineffective for failing
to file a timely alibi notice, and in so doing, prevented counsel from
calling Bowman’s brother Ralph as an alibi witness, which counsel
unsuccessfully attempted to do on the morning of trial. At the
motion-for-new-trial hearing, Ralph testified that he heard Bowman
“get[ ] up and walk[ ] through the living room” at around 7:00 a.m.
the day of the murder. On appeal, Bowman argues that had Ralph
been called as an alibi witness, he could have testified that Bowman
was at the house around 7:00 a.m. and that had he left the house
earlier that morning, Ralph would have heard Bowman’s feet “drop”
against the floor due to a condition that caused Bowman to lose
strength in his legs. According to Bowman, counsel failed to call Ralph to testify at trial, not because of trial strategy, but because
counsel failed to interview Ralph earlier and to timely file an alibi
notice.
“A decision as to which defense witnesses to call is a matter of
counsel’s trial strategy and tactics and will not support a claim of
ineffective assistance of counsel unless it is so unreasonable that no
competent attorney would have made the decision under the
circumstances.” Smith v. State, 308 Ga. 81, 92 (4) (839 SE2d 630)
(2020) (citation and punctuation omitted). Here, counsel testified at
the motion-for-new-trial hearing that he “knew . . . there was no
alibi” because he knew from speaking with Bowman that Bowman
had left the house the morning of the murder and while Ralph was
still asleep. And, counsel testified that he did not call Ralph to the
stand because counsel feared that doing so would result in perjury:
I didn’t want to talk to Ralph after I talked to [Bowman] and you know the reason. I didn’t want to support perjury and I didn’t want to talk to somebody if I’ve got to put them on the stand and make him testify without me asking did you do this or what time it was, and . . . I think then and I think today it was best that I didn’t put him on the stand. And as for why counsel still ultimately sought to introduce Ralph as
an alibi witness the morning of trial, counsel testified that he did so
at Bowman’s request.
Counsel’s testimony amply shows that his initial choice to not
call Ralph as an alibi witness was strategic since it was based on his
investigation of the case and his assessment that Ralph lacked an
alibi and might commit perjury, and thus was not “so unreasonable
that no competent attorney would have made the decision under the
circumstances.” Smith, 308 Ga. at 92 (4) (citation and punctuation
omitted). See Andrews v. State, 293 Ga. 701, 703 (2) (749 SE2d 734)
(2013) (concluding that counsel made a “strategic decision” to not
call alibi witness who might have lied about her activity with
defendant on night of the murder); Sims v. State, 278 Ga. 587, 591
(3) (c) (604 SE2d 799) (2004) (concluding that counsel was not
ineffective for failing to call witness to present testimony that
counsel believed was perjured).
Moreover, Ralph’s potential testimony, as indicated at the motion-for-new-trial hearing, was that Bowman was at the house at
around 7:00 a.m. This would not conflict with the theory of Bowman
killing Wolfe earlier between 6:05 and 6:07 a.m. Thus, counsel was
not deficient for failing to call, as an alibi witness, a potentially
perjurious witness who could not provide testimony supporting that
it was impossible for Bowman to have committed the murder. See
OCGA § 16-3-40 (“The defense of alibi involves the impossibility of
the accused’s presence at the scene of the offense at the time of its
commission.”); McKelvey v. State, 311 Ga. 34, 44 (5) (855 SE2d 598)
(2021) (identifying no deficiency in counsel’s failure to call two alibi
witnesses whose testimony “would not have been helpful” and “may
even have been harmful”); Sims, 278 Ga. at 591 (3) (c).
That counsel later sought to call Ralph as an alibi witness does
not render counsel’s failure to earlier provide an alibi notice
deficient. As explained above, counsel had a strategic basis for his
initial choice to not call Ralph as an alibi witness and thus not give
timely alibi notice. That counsel later changed his mind upon his
client’s request, after it was too late to do so, does not make his initial strategy any less reasonable. Accordingly, we conclude that
counsel was not deficient in failing to timely file an alibi notice.
(b) Bowman also claims that counsel was ineffective for failing
to investigate and present evidence that Bowman suffered from a
degenerative disease, Charcot-Marie-Tooth (“CMT”) disease, that
would have hindered him from committing the murder. At the
motion-for-new-trial hearing, the defense offered testimony from
one of Bowman’s doctors that she had prescribed him pain
medication and orthotics equipment for his CMT disease and that
the disease could cause numbness, pain, and weakness; testimony
from Bowman’s sister that Bowman had modifications on his
motorcycle accommodating his disabilities; and testimony from
Ralph that Bowman wore leg braces and had trouble running. On
cross-examination at the motion-for-new-trial hearing, the same
doctor testified that her records showed that Bowman did not need
help with transportation, shopping, preparing meals, housework, or
laundry; Ralph’s sister testified that Bowman regularly carried a
gun with him and indicated that he could operate a motorcycle for long trips; and Ralph testified that on the day of Wolfe’s murder, he
and Bowman went to a rock quarry, picked up a load of rocks, and
later unloaded the rocks with shovels and rakes.
When explaining why he chose not to focus more on Bowman’s
CMT disease, counsel testified at the motion-for-new-trial hearing
that he had investigated the disease by researching it and discussing
it with Bowman and various witnesses, but concluded that a defense
based on Bowman’s CMT disease “would not be extremely helpful”
and seeking further medical records “would not be in the best
interest.” Counsel explained: he “wanted [the jury] to know that
[Bowman] was weak in the hands and . . . that was about the extent
of it because [counsel] was concerned about [Bowman] . . . driving
and riding motorcycles with his hands and using the brakes and the
clutches.”
Bowman has failed to show that counsel’s performance was
deficient. As counsel’s motion-for-new-trial testimony shows—and
as the trial court found in its order denying the motion for new
trial—the reason why counsel did not subpoena or introduce evidence of Bowman’s CMT disease was strategic. Counsel assessed
that the jury would not believe the theory that Bowman’s CMT
disease precluded him from stabbing and shooting Wolfe. The record
supports counsel’s assessment. Not only did the jury hear evidence
that Bowman was physically able to ride his motorcycle for long
distances, the jury also heard that at the time of Bowman’s arrest,
he was carrying a firearm on his side and a sheath knife on a lanyard
around his neck, which supported the inference that Bowman was
capable of using both weapons. Moreover, evidence was presented
that Bowman had been physically violent toward Wolfe. And lastly,
the witnesses who testified to Bowman’s CMT disease at the motion-
for-new-trial hearing indicated that Bowman could perform a host
of activities requiring physical strength, including shopping, meal
preparation, laundry, and transporting rocks using shovels and
rakes. Thus, even if the defense presented the theory that Bowman’s
CMT disease prevented him from murdering Wolfe and called the
witnesses above to testify in support, that theory would not have
been credible, let alone persuasive, to the jury. Accordingly, counsel’s failure to present such a defense was not deficient
performance. See Lanier v. State, 310 Ga. 520, 525 (3) (a) (852 SE2d
509) (2020) (identifying no deficiency in counsel’s failure to present
defense theories that counsel did not find viable given the evidence);
Brooks v. State, 309 Ga. 630, 637 (2) (847 SE2d 555) (2020) (“An
attorney’s decision about which defense to present is a question of
trial strategy, and trial strategy, if reasonable, does not constitute
ineffective assistance of counsel.” (citation and punctuation
omitted)).
(c) Next, Bowman claims that counsel was ineffective for failing
to find and use at trial six photos that police took of Bowman
showing him without injuries or scratches only a few days after the
murder. We conclude that Bowman has failed to show deficiency. As
this Court has stated before, “decisions as to what witnesses and
other evidence to present are matters of trial strategy and are
ineffective only if unreasonable ones that no competent attorney
would make.” Horton v. State, 310 Ga. 310, 328 (5) (a) (849 SE2d
382) (2020) (citation and punctuation omitted). Here, the State never argued that Bowman and Wolfe engaged in a physical struggle
before Wolfe’s death such that Bowman was likely to have been
injured as a result, but instead, presented evidence that Bowman
shot and stabbed Wolfe and drove away in a matter of minutes (from
around 6:05 a.m. to 6:07 a.m.). Photos showing that Bowman lacked
injuries shortly after the murder would have been unhelpful in
rebutting the theory that Bowman ambushed Wolfe and thus would
have carried little exculpatory weight, if any. Since the photos would
have been of little or no avail to the defense, Bowman has failed to
show that counsel was deficient for failing to find the photos and use
them at trial. See Morrison v. State, 303 Ga. 120, 125-26 (5) (b) (810
SE2d 508) (2018) (no deficiency in counsel’s failure to introduce
medical-records evidence where counsel testified that the records
“would not have had ‘any significant bearing one way or the other
on the trial’”); McKelvey, 311 Ga. at 44 (5) (no deficiency in counsel’s
failure to call two alibi witnesses, in part because their testimony
“would not have been helpful”).
(d) Bowman also claims that counsel was ineffective for failing to present testimony showing that two knives found after Bowman’s
arrest, and later admitted as evidence, were purchased after Wolfe
was killed. Following Bowman’s indictment in March 2018, police
arrested Bowman and searched his residence, finding a sheath knife
on a lanyard around Bowman’s neck, and another sheath knife at
his home. At trial, both knives were admitted as exhibits and
became the subject of direct- and cross-examination. Sergeant Josh
Smith testified for the State that the knives were “important”
because Bowman had previously told police that “he did not carry
any type of weapons with him, because of his medical disability.”
Another prosecution witness, a medical examiner who had
examined Wolfe, testified that the two knives were “consistent with
the way [Wolfe’s stab] wounds look[ed].” In response, defense
counsel pointed out on cross-examination that numerous other
knives could have created Wolfe’s stab wounds and that the medical
examiner had neither tested the two knives for DNA nor seen them
before trial. At closing argument, defense counsel pointed out the
lack of DNA evidence linking the two knives to Wolfe and argued that the knives had “nothing to do” with the case. The State, in turn,
argued that at least one of the knives was “consistent with the knife
that stabbed [Wolfe],” that Bowman “had plenty of time to clean [the
knives]” after Wolfe’s death, and that the knives showed that
Bowman lied about not having weapons.
On appeal, Bowman argues that counsel should have presented
testimony from Ralph or Bowman’s girlfriend that the two knives
were purchased after Wolfe’s death. According to Bowman, by failing
to present such testimony, counsel did not dispel the suggestion that
Bowman killed Wolfe with those knives.
Assuming without deciding that counsel performed deficiently
by failing to present such testimony, we conclude that Bowman has
failed to show prejudice. Even if counsel had presented testimony
showing that the two knives admitted at trial were purchased after
the murder, that would not have undermined the State’s point that
the finding of one of those knives on Bowman’s person indicated that
he had lied to police when he told them that he did not carry any
weapons due to his disability. Moreover, even if counsel used the timing of Bowman’s purchase of the knives to show that Bowman
could not have murdered Wolfe using the particular knives admitted
at trial, thus rebutting the State’s point that those knives were
“consistent” with Wolfe’s stab wounds, that would still have done
little to rebut the evidence that Bowman was the one who murdered
Wolfe. This evidence included: the -7925 phone number, which
exchanged calls with Wolfe’s phone and tracked with its movements
shortly before she was murdered, being labeled as “Roe FS Phone,”
a label consistent with Bowman’s first name and his admission that
he possessed a “food stamp” phone; testimony that in the weeks
leading up to Wolfe’s murder, the cell tower most frequently used by
both the -7925 phone and by Bowman’s phone was the same;
testimony from multiple witnesses of Bowman’s jealous and
controlling behavior toward Wolfe; and the “R” and “O,” the first two
letters of Bowman’s first name “Roe,” written in blood on Wolfe’s car
windshield. For these reasons, Bowman has failed to show a
“reasonable probability” that the trial outcome would have been
altered by testimony showing that the two knives were purchased after Wolfe’s death. See Moulder, 317 Ga. at 47 (3); Richardson-
Bethea v. State, 301 Ga. 859, 865 (2) & n.8 (804 SE2d 372) (2017)
(identifying no prejudice from counsel’s failure to present testimony
because, among other reasons, the testimony could not rebut various
aspects of the State’s case).
(e) Next, Bowman argues that counsel was ineffective for
failing to introduce evidence and elicit testimony about cell phone
records that Bowman claims would show that he and Wolfe had a
good relationship leading up to Wolfe’s death, despite evidence that
the two had a volatile relationship previously. First, Bowman argues
that counsel should have called a “cell phone expert” and presented
call records to show that he and Wolfe called and texted frequently
in the week before the murder. A cell-phone-forensics expert that
Bowman called at the motion-for-new-trial hearing testified that in
the week leading up to Wolfe’s death, Wolfe’s phone called Bowman’s
phone several times a day for a total of 36 calls; Bowman’s phone
called Wolfe’s phone almost every day for a total of 27 calls; and the
two phones texted several times a day with a total of 179 texts. Second, Bowman argues that counsel should have introduced cell
phone records showing the contents of texts exchanged between him
and Wolfe. According to Bowman, these records showed that he and
Wolfe made plans together and exchanged friendly, caring, and
comforting messages in the week leading up to Wolfe’s death. And,
Bowman contends, these records showed that Wolfe routinely texted
“Good morning” to people other than Bowman, thus reducing the
probative value of Wolfe texting this message to Bowman shortly
before she was murdered.
We conclude that Bowman has failed to show that counsel was
deficient in failing to call a “cell phone expert” to give testimony as
Bowman describes above or to produce the cell phone records. At the
motion-for-new-trial hearing, counsel testified that the State’s
expert in cell phone forensics had “admitted everything [that
counsel] asked him to admit” on cross-examination and had provided
at trial “all of the information” that counsel would have sought had
he hired his own expert. And, Detective Demeester, the State’s cell-
phone-forensics expert, testified at trial that Bowman and Wolfe’s phones called over 60 times and texted close to 170 messages,
rendering cumulative the expert testimony and evidence that
Bowman argues counsel should have presented on the frequency of
Bowman’s calls and texts with Wolfe. Moreover, the cell phone
records showing Bowman and Wolfe’s texts are largely cumulative
of other evidence that Bowman and Wolfe appeared to have a good
relationship leading up to the murder, including: Detective
Demeester’s testimony on the number of calls and texts between the
two in the week before the murder; evidence that on the morning of
the murder, Wolfe sent Bowman a positive greeting (“Good
morning”); and evidence that shortly after Jesse noticed Wolfe was
missing, he called Bowman to ask if he had seen her. Lastly, that
the cell phone records showed Wolfe texting “Good morning” to
people other than Bowman, does little to offset the probative value
of Wolfe texting “Good morning” to Bowman’s phone 11 seconds
before it texted the same message to the -7925 phone that tracked
with Wolfe’s phone shortly before she was murdered. It was not
objectively unreasonable for counsel to not present expert testimony or cell phone records that would have been unhelpful or cumulative
of Detective Demeester’s testimony and the evidence above. See
Patterson v. State, 314 Ga. 167, 176 (2) (f) (875 SE2d 771) (2022) (no
deficiency in counsel’s failure to call witness whose testimony would
have been cumulative); Birdow v. State, 305 Ga. 48, 52 (2) (823 SE2d
736) (2019) (no deficient performance when “trial counsel made a
clear strategic choice not to call Dr. Burton to testify, reasoning that
the same conclusions he would testify to could effectively be drawn
out in the cross-examination of Dr. Reddy”).5
3. Next, Bowman claims that the trial court abused its
discretion by admitting under OCGA § 24-4-404 (b) (“Rule 404 (b)”)
evidence of Bowman’s prior acts of violence against his ex-wife,
5 Lastly, to the extent Bowman asserts a generalized claim that counsel
was ineffective for failing to conduct an adequate pretrial investigation, Bowman has failed to show that counsel performed deficiently. Bowman does not offer any argument supporting such a generalized claim, and, to the contrary, counsel testified at the motion-for-new-trial hearing that, among other things, he “thoroughly inspected the discovery,” read summaries of witness statements and examined cell phone records in detail, and spoke with Bowman multiple times and collected information from witnesses to prepare for trial. Bonnie Brewer.6 See Rule 404 (b) (“Evidence of other crimes, wrongs,
or acts shall not be admissible to prove the character of a person in
order to show action in conformity therewith,” but may “be
admissible for other purposes, including, but not limited to, proof of
motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.”).
Before trial, the State filed its notice of intent to offer the prior-
acts evidence for purposes of showing intent, motive, or plan. Over
defense counsel’s objections, which he renewed at trial, the trial
court permitted the State to present the prior-acts evidence under
Rule 404 (b) and instructed the jury to consider the evidence only for
the purposes of showing intent, motive, or plan. Brewer then
testified that she had married Bowman in 1986, gave birth to a
daughter about a year later, and divorced him shortly after; that
Bowman would hit her; that he had told her once to not get out of
6 Bowman claims in his appellate briefing that the trial court “erred” in
admitting the Rule 404 (b) evidence. But as we state below, “[o]n appeal, a trial court’s decision to admit evidence pursuant to OCGA § 24-4-404 (b) is reviewed for a clear abuse of discretion.” Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016). bed because he had a gun under it; that after the two divorced,
Bowman “wanted [Brewer] to come back,” apologized to her and
promised to not hit her again, but then “hit [her] in [her] face” and
would tell her “nobody else would have [her]”; that once after the
divorce, he choked a man that she was “seeing” and “took [her] kids
and . . . left with them”; and that in another incident after the
divorce, around 1999, Bowman arrived in violation of a restraining
order at Brewer’s house where her boyfriend was also staying, told
her he “just want[ed] to talk to [her],” used a gun to prevent Brewer
from calling 911 and to command her and her boyfriend to enter a
room, and told her boyfriend that he had “better not never catch him
back there again.” The State also introduced a copy of Bowman’s
indictment and sentencing for aggravated assault stemming from
this last incident.7
“On appeal, a trial court’s decision to admit evidence pursuant
to OCGA § 24-4-404 (b) is reviewed for a clear abuse of discretion.”
7 The defense then tendered a copy of a subsequent pardon issued for the
aggravated assault offense, which the trial court admitted. Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016).
“[E]videntiary errors require reversal only if they harm a
defendant’s substantial rights,” and the “test for determining
nonconstitutional harmless error is whether it is highly probable
that the error did not contribute to the verdict.” Pritchett v. State,
314 Ga. 767, 778 (2) (c) (879 SE2d 436) (2022) (citations and
punctuation omitted). “In determining whether the error was
harmless, we review the record de novo and weigh the evidence as
we would expect reasonable jurors to have done so.” Jackson v. State,
306 Ga. 69, 80 (2) (c) (829 SE2d 142) (2019) (citation and punctuation
omitted).
Assuming without deciding that the trial court abused its
discretion in admitting the prior-acts evidence, we conclude that any
error was harmless. See Virger v. State, 305 Ga. 281, 293-94 (7) (a)
(824 SE2d 346) (2019) (pretermitting whether testimony was
admitted in violation of Rule 404 (b) and stating “we need not decide
whether the evidence was properly admitted, because its admission
was harmless”). To start, the marginal harm of the jury learning of Bowman’s violence and jealousy against his ex-wife from nearly two
decades ago, was unlikely to have significantly altered the jury’s
perception of Bowman, given that the jury heard substantial other
evidence, unchallenged on appeal, of Bowman’s violence and
jealousy against Wolfe. This evidence included testimony that:
Bowman argued with Wolfe for not holding his hand; he forcefully
grabbed her arm or slapped her when she did not give him the
attention he wanted; Bowman hit Wolfe “right in the eye,” and she
had “[b]lack eyes, busted lips” and bruises on her arms and wrist
while dating Bowman; Wolfe confided in a friend that Bowman had
pushed her down on a bed and choked her, but she was afraid to end
her relationship with him because he had told her “he could do
something to her and get rid of her and . . . nobody would ever prove
anything”; and, after the two terminated their engagement, Wolfe
dated another man and Bowman would stalk Wolfe at stores and
residential areas to the point where her son decided to confront him
to stop. In light of all this testimony of Bowman’s violent, controlling
behavior toward Wolfe, any unfair prejudice from the erroneous admission of evidence that Bowman behaved similarly toward
another woman decades earlier was very low. Thus, because the
prior-acts evidence was not probative of Bowman’s guilt and was low
in unfair prejudice, it was unlikely to have carried significant
additional weight with the jury.8 See State v. Williams, 316 Ga. 249,
254-55 (887 SE2d 285) (2023) (evidence that defendant’s
8 Some members of this Court would conclude that the probative value,
if any, of the prior-acts evidence was substantially outweighed by its unfair prejudice, thus rendering the admission of such evidence a violation of OCGA § 24-4-403 (“Rule 403”) (“Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]”). See Kirby v. State, 304 Ga. 472, 479-80 (4) (819 SE2d 468) (2018) (proper admission of prior-acts evidence under Rule 404 (b) requires that such admission not violate Rule 403). But even if prior-acts evidence is admitted in violation of Rule 403, thus rendering its admission error, that does not mean that the error is per se harmful such that reversal is required. The “test for determining nonconstitutional harmless error”—an inquiry separate from Rule 403 analysis—“is whether it is highly probable that the error did not contribute to the verdict.” Pritchett, 314 Ga. at 778 (2) (c) (citation and punctuation omitted). And here, one reason why it was highly probable that evidence of Bowman’s prior acts against Brewer did not contribute to the jury’s verdict even if erroneously admitted, is that the prior-acts evidence was not probative of Bowman’s guilt and was low in unfair prejudice. Given all the evidence of Bowman’s prior violence against Wolfe—as well as substantial evidence of Bowman’s guilt, as we later explain—evidence that he had also been violent against Brewer did not add much to sway the jury to find him guilty on a basis other than the unchallenged-on-appeal evidence of his guilt. See State v. Williams, 316 Ga. 249, 253 (887 SE2d 285) (2023) (“unfair prejudice” speaks to the capacity of evidence to “lure the factfinder into declaring guilt on an improper basis rather than on proof specific to the offense charged” (citation and punctuation omitted; emphasis added)). relationship with a woman was extramarital carried “exceedingly
low prejudicial impact” in light of evidence of the “extramarital
nature” of defendant’s relationship with another woman); Young v.
State, 309 Ga. 529, 536-38 (3) (847 SE2d 347) (2020) (concluding that
assumed error in admission of photo showing defendant with a gun
was harmless, in part because “any harmful effect that the [ ] photo
may have had was diminished” given the other evidence “pertaining
to other pictures of [the defendant] with guns”); Rodrigues v. State,
306 Ga. 867, 867 n.1, 870-72 (2) (834 SE2d 59) (2019) (concluding
that assumed error in admitting evidence of separate stabbing
incident occurring about five years before the crimes was harmless,
in part because the “marginal harm” of jury learning that the
defendant had been “previously convicted of involuntary
manslaughter related to a stabbing [was] unlikely to have
substantially impacted the jury’s perception of [him], given that they
were already aware that [he] was incarcerated at the time” he killed
the victim in the present case).
Moreover, the evidence against Bowman, though circumstantial, was substantial. As discussed above, the jury heard
ample testimony, unchallenged on appeal, from multiple witnesses
showing that Bowman used force against Wolfe when he was
jealous, as well as testimony that Wolfe started dating another man
after she terminated her engagement to Bowman and that Bowman
stalked her after the termination. The -7925 phone that exchanged
three calls with Wolfe and pinged the same cell towers and sectors
shortly before she was murdered, and whose last communication
and pinged location were the same as those of Wolfe’s cell phone,
was saved in Wolfe’s contacts as “Roe FS Phone” with “Roe” being
Bowman’s first name and “FS Phone” aligning with the fact that
Bowman stated to officers that he had a “food stamp” phone. Also,
in the weeks leading up to Wolfe’s murder, the cell tower most
frequently used by both the “Roe FS Phone” and by Bowman’s phone
was the same. The morning of the murder, Wolfe’s cell phone texted
the “Roe FS Phone” number “Good morning” only 11 seconds after
texting “Good morning” to Bowman’s phone and not receiving a
reply. Law enforcement found “R” and “O,” the first two letters of Bowman’s first name, written in blood on Wolfe’s car windshield.
And, as indicated by Bowman’s carrying of a sheath knife and a gun
at the time of his arrest, Bowman had lied to police about not
carrying any weapons, which the jury could have determined
revealed a consciousness of guilt. See Jenkins v. State, 313 Ga. 81,
89 (3) (868 SE2d 205) (2022) (the fact of “concealment” or
“assumption of a false name . . . is admissible as evidence of
consciousness of guilt for the charged offense, and thus of guilt itself”
(citation and punctuation omitted)); Michael v. State, 335 Ga. App.
579, 585 (1) (782 SE2d 479) (2016) (“The jury . . . could reasonably
infer from [defendant’s] . . . initial lying to the police that [she] was
conscious of her own guilt.”).
For all these reasons, it is “highly probable” that any assumed
error in the trial court’s admission of the prior-acts evidence “did not
contribute to the verdict.” Pritchett, 314 Ga. at 778 (2) (c). See
Nundra v. State, 316 Ga. 1, 7 (2) (885 SE2d 790) (2023) (any Rule
404 (b) error in admitting evidence of prior crime committed “a long
time ago” was harmless given strong evidence of defendant’s guilt); Kirby v. State, 304 Ga. 472, 487 (4) (c) (819 SE2d 468) (2018) (error
in admitting prior-acts evidence was harmless where jury “was
already aware that [Appellant] had committed other violent crimes”
and where “any prejudice from the evidence that [Appellant] had
committed” additional violent acts was “easily offset by the other
compelling evidence against Appellant”); Douglas v. State, 303 Ga.
178, 182-83 (3) (811 SE2d 337) (2018) (any error in admission of Rule
404 (b) testimony was harmless where evidence of defendant’s guilt
was strong and where other evidence established the same facts
supported by the challenged testimony).
4. Finally, to the extent Bowman claims that he is entitled to a
new trial based on the cumulative prejudice resulting from the trial
court’s error and from his trial counsel’s ineffective assistance, that
claim fails. “At least as to evidentiary issues, this Court must
‘consider collectively the prejudicial effect, if any, of trial court
errors, along with the prejudice caused by any deficient performance
of counsel.’” Allen v. State, 310 Ga. 411, 417 (4) (851 SE2d 541)
(2020) (citation omitted). See State v. Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020). Here, even considering the presumed trial court
error in admitting the prior-acts evidence along with the presumed
deficiency in counsel’s failure to present testimony regarding the
two knives, we conclude that given the strength of the evidence
against Bowman, Bowman “has not demonstrated a reasonable
probability that, but for these” two assumed errors, “the outcome of
the proceeding would have been different.” Payne v. State, 314 Ga.
322, 334 (4) (877 SE2d 202) (2022). Thus, we conclude that the
cumulative effect of the assumed errors does not entitle Bowman to
a new trial. See Jennings v. State, 318 Ga. 579, 592-93 (4) (899 SE2d
210) (2024) (combined prejudicial effect of assumed trial court error
and deficiencies by counsel did not warrant new trial where evidence
against defendant was strong); Lofton v. State, 309 Ga. 349, 366-67
(7) (846 SE2d 57) (2020) (combined prejudicial effect of assumed trial
court errors and deficiency by counsel did not deprive defendant of
his right to a fair trial where properly admitted evidence of
defendant’s guilt was strong).
Judgment affirmed. All the Justices concur. Decided August 13, 2024.
Murder. Polk Superior Court. Before Judge Murphy.
Karen S. Wilkes, for appellant.
Jack Browning, Jr., District Attorney; Christopher M. Carr,
Attorney General, Beth A. Burton, Deputy Attorney General, Clint C.
Malcolm, Meghan H. Hill, Senior Assistant Attorneys General, Craig
J. Pake, Assistant Attorney General, for appellee.