315 Ga. 252 FINAL COPY
S22A0958. DAVIS v. THE STATE.
PINSON, Justice.
Patricko Davis was convicted of felony murder and other
crimes in connection with the July 2014 shooting death of Takeenan
Williams.1 On appeal, Davis contends that (1) he was denied his
1 The shooting occurred on July 24, 2014. In November 2014, Davis was
indicted for malice murder (Count 1), two counts of felony murder (Counts 2 and 3), and aggravated assault (Count 4) in relation to the shooting death of Williams. He was also indicted for criminal attempt to sell marijuana (Count 5), two additional counts of aggravated assault in relation to two other alleged victims (Counts 6 and 7), and possession of a firearm during the commission of a felony (Count 8). At Davis’s trial in February 2017, the trial court directed verdicts on Counts 6 and 7. As to the remaining counts, the jury found Davis guilty of one count of felony murder, the aggravated assault underlying the felony murder, and the firearm-possession count, and not guilty of the remaining counts. Davis was sentenced to serve life in prison for the felony murder count plus a consecutive, suspended five-year term for the firearm- possession count; the trial court merged the aggravated assault count into the felony murder count for sentencing purposes. On March 2, 2017, Davis filed a premature motion for new trial, which ripened upon the entry of Davis’s final disposition on March 7, 2017. See Southall v. State, 300 Ga. 462, 464-467 (1) (796 SE2d 261) (2017). Through new counsel, Davis filed an amended motion for new trial in September 2021. Following a hearing, the trial court denied the motion in an order entered on March 15, 2022. Davis filed a timely notice of appeal on March 16, 2022, and an amended notice of appeal on March 22, 2022. The appeal was docketed to the August 2022 term of this Court and was thereafter submitted for a decision on the briefs. constitutional right to a speedy trial; (2) the trial court erred by
declining to admit “reverse 404 (b)” evidence about a later crime
committed by a friend of Williams who was present when Williams
was shot, which Davis claimed was relevant to the friend’s “intent”
and “opportunity” to carry a gun; and (3) trial counsel rendered
constitutionally ineffective assistance by failing to call a bullet-
trajectory expert to support Davis’s self-defense claim and in his
handling of the reverse 404 (b) evidence.
None of Davis’s claims has merit. The trial court did not abuse
its discretion in rejecting Davis’s speedy-trial claim based on the
court’s careful application of the relevant factors, which included
determinations that Davis was himself responsible for some portion
of the delay, did not assert his right to a speedy trial promptly, and
failed to establish any actual prejudice resulting from the delay.
Davis’s claim that the trial court erred by not admitting his reverse
404 (b) evidence fails because the court never ruled that the evidence
was not admissible; rather, Davis simply gave up on trying to
introduce the evidence. Finally, his claims of ineffective assistance
2 fail because he has not established that trial counsel performed
deficiently: Counsel made a strategic decision to establish the facts
needed to support Davis’s self-defense claim through cross-
examination of a prosecution witness and succeeded in getting
favorable testimony. And the reverse 404 (b) evidence would not
have been admissible because it was classic propensity evidence, so
counsel was not deficient for failing to introduce it. We therefore
affirm Davis’s convictions and sentences.
1. On the afternoon of July 24, 2014, Davis shot and killed
Williams during a drug transaction between Davis and Williams’s
friend, Demetrise Maye. Davis never denied shooting Williams.
Rather, he claimed at trial that he shot Williams in self-defense. His
story was that Maye pulled a gun to try to rob him, so he pulled his
own gun and shot Williams in the ensuing fray.
(a) The shooting was witnessed by several bystanders who
were walking in the parking lot of a Sandy Springs office complex
where they worked. The group noticed three men having a heated
3 argument in the adjacent parking lot of the neighboring Sheraton
Hotel. The witnesses testified that one of the men was waving a gun
at one of the other men, yelling, “give me my sh*t” or “where’s my
sh*t,” and they described hearing a single gunshot followed by a
pause and then five or six more shots.
One of these witnesses testified that, after the first shot, the
victim tried to crawl away over the guardrail separating the two
parking lots and that, when the five or six shots were fired, the
shooter was standing and “closing in” on the victim, whose back and
side were facing the shooter. That witness, who tried to render aid
after the shooting stopped, testified that the victim was lying on the
ground beyond the guard rail “like falling down the hill but facing
up,” with his feet higher than his head.
(b) Maye and Williams’s girlfriend, Elizabeth Lazalde, both
testified for the State. They each testified that on the day of the
shooting, Lazalde drove Maye and Williams to meet Davis at a
Sandy Springs apartment complex. Lazalde parked at the nearby
Sheraton Hotel and stayed in the car while Williams and Maye got
4 out and walked over to the apartments.
Maye testified that he found Davis at the apartments, and
Davis gave Maye seven grams of marijuana. Maye gave Davis half
the money owed, said Williams had the other half, and led Davis
back to Lazalde’s car. Williams joined him along the way, and Maye
gave Williams the marijuana. As they reached the car, Maye heard
Williams and Davis arguing and saw Davis produce a gun and point
it at Williams, saying, “give me my sh*t.” Maye backed away, heard
the two “scuffling,” and saw Williams take off running. Davis began
firing, emptying his clip, and then ran away.
Lazalde testified that she sat in her car while Williams and
Maye went to the apartments. When the pair returned, along with
Davis, she observed Davis and Williams talking in a “hostile”
manner. She then saw Davis pull out a gun and point it at Williams,
prompting Williams to try to grab the gun from Davis’s grip. The
pair began wrestling, and the gun hit the ground. Davis picked it up
and fired the first shot, followed by five or six more shots. According
to Lazalde, neither Williams nor Maye was carrying a gun that day.
5 (c) The defense presented several witnesses, including Davis.
Davis testified that on the day of the shooting, Maye arranged to buy
some marijuana. After the transaction, Maye asked Davis if he was
selling his watch, and Davis responded that he was and allowed
Maye to try it on. Maye then said he wanted to buy the watch, told
Davis his money was in the car, and, joined by Williams along the
way, led Davis to the Sheraton parking lot. Once back at the car,
Maye asked whether Davis had change. Davis responded that he did
and pulled out some cash, at which point Maye turned around,
pointed a gun at Davis, and told him to “give it up.” Davis pulled out
the gun he was carrying in his waistband and cocked it, and
Williams walked over and grabbed Davis. Williams and Davis
tussled over the gun, the gun discharged, both men fell to the
ground, and, as Williams got up to charge at Davis, Davis grabbed
his gun and fired it. Davis testified that he did so because he believed
Williams was going to kill him, and that he ran because he was
scared.
(d) Aside from Davis’s testimony, there was no evidence that
6 Maye had a gun in his possession or that more than one gun was
present at the scene. The evidence in fact suggested the opposite:
the seven shell casings recovered from the scene were determined to
have been fired from the same .40-caliber Smith & Wesson Taurus
firearm, and the three intact bullets recovered from Williams’s body
were also confirmed to have been fired from the same .40-caliber
gun. A box for a Taurus .40-caliber handgun with two magazines
inside was found in a search of Davis’s apartment.
The medical examiner testified that Williams had sustained a
total of five gunshot wounds, including a fatal wound to the back.
Some of the shots entered from the front of his body and some from
the back, and all entered at an upward angle. The medical examiner
testified on cross-examination that this upward trajectory “could be”
consistent with the shots having been fired up from the ground, as
the defense argued. But on redirect she testified that the angles of
the shots were also consistent with the victim having been shot
while lying with his feet higher than his head. Crime-scene
investigators testified that the pattern of shell casings left at the
7 scene suggested that the shooter was moving around while firing the
gun.
2. Davis first contends that he was denied his constitutional
right to a speedy trial. In reviewing the trial court’s ruling on this
issue, we accept the trial court’s factual findings unless they are
clearly erroneous, and we will affirm its ultimate conclusion absent
an abuse of discretion. See Burney v. State, 309 Ga. 273, 286 (4) (845
SE2d 625) (2020).
(a) About 30 months elapsed between Davis’s arrest in August
2014 and his trial in February 2017. Davis was indicted in
November 2014, roughly three months after his arrest. Following
his indictment, Davis filed a number of pretrial motions, and the
State served Davis with its discovery materials. In May 2015, Davis
moved for a 60-day continuance from an upcoming motions calendar,
citing the “voluminous” discovery and investigative materials in the
case and the numerous witnesses whom the defense still intended to
interview. In a June 2015 motion seeking additional funds for the
defense, Davis noted that the defense still needed to interview “over
8 twenty witnesses.”
On April 5, 2016, Davis submitted a filing styled “Request for
Trial,” stating that he was “ready for trial” and “would request that
this matter proceed to trial immediately.”2 Nine months later, on
January 9, 2017, Davis filed a motion to dismiss his indictment,
asserting that the continued delay in bringing his case to trial
violated his constitutional right to a speedy trial. After a hearing,
the trial court denied the motion, and trial began on February 13,
2017. After he was convicted, Davis renewed his speedy-trial claim
in a motion for new trial. The court reaffirmed its earlier ruling,
2 Although this filing may have been intended as a statutory speedy-trial
demand, it did not comply with the speedy-trial statute. See OCGA § 17-7-171. That Code section provides that, absent “special permission of the court,” any speedy-trial demand must be filed “at the term of court at which the indictment is found or at the next succeeding regular term thereafter.” Id. at (a). Davis was indicted on Friday, November 7, 2014, which was in the November 2014 term of court, and the succeeding (January 2015) term would have ended on March 1, 2015, the day before the first Monday in March. See OCGA § 15-6-3 (3) (terms of Fulton County Superior Court begin on first Monday of January, March, May, July, September, and November). So the Request for Trial was filed more than a year after the statutory deadline. Also, OCGA § 17-7-171 (a) requires that the demand “clearly be titled ‘Demand for Speedy Trial’” and “reference this Code section within the pleading”; the Request for Trial complied with neither of these requirements.
9 concluding that Davis was not denied his constitutional right to a
speedy trial.
(b) The Sixth Amendment to the United States Constitution
guarantees that, “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial,” U.S. Const., Amend. VI.
When a criminal defendant claims that this right has been violated,
the trial court conducts a two-step inquiry. See Johnson v. State, 300
Ga. 252, 257 (3) (794 SE2d 60) (2016) (citing Barker v. Wingo, 407
U.S. 514 (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United
States, 505 U.S. 647 (112 SCt 2686, 120 LE2d 520) (1992)). First, the
court must decide whether the interval between the defendant’s
arrest and his trial is long enough to be considered “presumptively
prejudicial.” Redding v. State, 309 Ga. 124, 129 (3) (844 SE2d 725)
(2020) (citation and punctuation omitted). A delay of a year or more
typically is long enough to presume prejudice. See id.
If presumptive prejudice is established, the trial court then
weighs four factors to determine whether the defendant was denied
his right to a speedy trial. See Henderson v. State, 310 Ga. 231, 235
10 (2) (850 SE2d 152) (2020); Redding, 309 Ga. at 129 (3). This “difficult
and sensitive balancing process” assesses (1) the length of the delay;
(2) the reasons for the delay; (3) the defendant’s assertion of his right
to a speedy trial; and (4) the prejudice to the defendant. Henderson,
310 Ga. at 235 (2) (invoking “the Barker-Doggett factors” to assess
federal and state constitutional speedy-trial claims). This
assessment is “context-focused,” and the trial court’s discretion in
applying this framework is “substantial.” Johnson, 300 Ga. at 257-
258 (3) (citations and punctuation omitted).
We apply these steps in turn.
(c) The presumptive-prejudice step is straightforward here.
“The constitutional right to a speedy trial attaches on the date of the
arrest or when formal charges are initiated, whichever first occurs.”
Fallen v. State, 289 Ga. 247, 248 (1) (710 SE2d 559) (2011) (citation
and punctuation omitted). The trial court thus properly calculated
the length of the delay here as 30 months, the interval between
August 2014 and the start of Davis’s trial in February 2017. As the
trial court recognized, a 30-month delay is presumptively
11 prejudicial. See Redding, 309 Ga. at 129 (3).
(d) We turn next to the four-factor Barker-Doggett analysis.
(i) Having calculated the delay at 30 months, the trial court
weighed the length of delay against the State, but only “lightly.”
Davis does not contest that conclusion, and we find no abuse of
discretion. See, e.g., Taylor v. State, 312 Ga. 1, 13 (4) (b) (i) (860 SE2d
470) (2021) (30-month delay properly weighed against the State);
Cash v. State, 307 Ga. 510, 515 (2) (b) (i) (837 SE2d 280) (2019) (no
abuse of discretion where trial court weighed 28-month delay only
lightly against the State).
(ii) In assessing the reasons for the delay, the trial court must
consider which party was responsible for the delay, whether the
delay was intentional, and, if it was intentional, what the motive
was for seeking or causing the delay. See, e.g., Taylor, 312 Ga. at 13
(4) (b) (ii) (where both prosecution and defense sought continuances,
trial court properly determined that reasons for delay weighed
“neutrally”); State v. Johnson, 291 Ga. 863, 865-866 (2) (b) (734 SE2d
12) (2012) (noting that “[a] deliberate attempt to delay the trial in
12 order to hamper the defense” should weigh heavily against the
State, whereas an unintentional delay due to the prosecutor’s
negligence or an overcrowded trial court docket should weigh less
heavily (citation and punctuation omitted)). When there is no
apparent reason for the delay, the delay is “treated as caused by the
State’s negligence” but “should be weighed only slightly against the
State.” Higgenbottom v. State, 290 Ga. 198, 201-202 (1) (B) (719
SE2d 482) (2011); accord Fallen, 289 Ga. at 248-249 (2).
Here, the trial court noted that Davis had not alleged that the
delay was due to any deliberate effort on the part of the State.
Instead, the court found, the delay was due in equal parts to “over-
crowded dockets” and to the defense’s needs in completing its
investigation. Thus, the court concluded that this factor weighed
neutrally.
That conclusion was within the court’s discretion. The record
clearly supports the court’s finding that the delay was attributable
in part to Davis’s own needs and requests: Davis sought a
continuance in May 2015, nine months after his arrest; two months
13 after that, his counsel indicated to the court he still had more than
20 witnesses to interview; and Davis did not ask for a trial date until
some 20 months after his arrest, when he filed his Request for Trial.
As for the State’s role in the delay, it appears that, after Davis filed
the Request for Trial, the case appeared on several trial calendars
but was not called, and at some point it ended up on the court’s
“backlog calendar.” It was thus appropriate for the trial court to
attribute some portion of the delay to the State. See Higgenbottom,
290 Ga. at 201-202 (1) (B); Williams v. State, 290 Ga. 24, 26 (2) (717
SE2d 640) (2011) (trial court took judicial notice of court’s heavy
dockets in assessing reasons for delay in trial). Because the record
shows that both sides bore some responsibility for the delay, the
court did not abuse its discretion in determining that this factor
weighed neutrally. See Phan v. State, 290 Ga. 588, 595 (1) (b) (723
SE2d 876) (2012) (where both State and defense bore responsibility
for delay, this factor “remain[ed] neutral”).
(iii) The third factor asks whether the defendant “asserted the
right to a speedy trial in due course.” Cash, 307 Ga. at 517 (2) (b)
14 (iii) (citation and punctuation omitted). This factor focuses on “the
timing, form, and vigor of the accused’s demands to be tried
immediately.” Id. (citation and punctuation omitted). Although an
accused need not demand a trial at the “first available opportunity,”
id. (citation and punctuation omitted), his failure to assert his right
“with reasonable promptness” will ordinarily weigh heavily against
him. State v. Alexander, 295 Ga. 154, 158-159 (2) (c) (758 SE2d 289)
(2014). Accord Johnson, 291 Ga. at 866 (2) (c) (“Because delay often
works to the defendant’s advantage, the failure of the accused to
assert his right in due course generally is accorded strong
evidentiary weight.” (citations and punctuation omitted)).
Here, the trial court concluded that Davis failed to timely
assert his right to a speedy trial. Noting that Davis was represented
by counsel “every step of the way,” the court determined that, to the
extent the Request for Trial was intended as a statutory speedy-trial
demand, it was untimely and otherwise failed to comply with
statutory requirements, and the court took note of his long delay
before asserting his constitutional speedy-trial right.
15 This conclusion, too, was within the trial court’s discretion. The
court was correct that Davis’s Request for Trial was, if construed as
a statutory speedy-trial demand, untimely and non-compliant. See
note 2. It was not an abuse of discretion to conclude that this
determination, along with Davis’s 29-month delay in asserting his
constitutional speedy-trial right, weighed heavily against him. See
Phan, 290 Ga. at 595-596 (1) (c) (this factor weighed heavily against
defendant where he failed to “assert any objection to the slow pace
of [his] case” for a “years-long period” and then “actively sought
further delay” when public-defender funding issues emerged);
Higgenbottom, 290 Ga. at 202 (1) (C) (this factor weighed heavily
against defendant where defendant himself was granted a
continuance, failed to file a statutory speedy-trial demand, and
waited for more than two years after his arrest to seek dismissal on
speedy-trial grounds).
(iv) The final factor is prejudice. When prejudice is presumed
based on the length of a delay in trying the case, that presumption
not only remains in place but “increases in weight over time.” Cash,
16 307 Ga. at 518 (2) (a) (iv) (citation and punctuation omitted). But
that does not mean this factor always weighs against the State. If a
defendant cannot show evidence of actual prejudice, that failure can
counterbalance and even outweigh any presumptive prejudice in
this analysis. See id. at 518-519 (2) (b) (iv) (where defendant failed
to show actual prejudice, prejudice factor did not weigh in
defendant’s favor, despite presumptive prejudice from 28-month
delay).
Actual prejudice is assessed by considering evidence, if any, of
“oppressive pretrial incarceration,” “anxiety and concern of the
accused,” and potential impairment of the defense caused by fading
memories of witnesses or the loss of exculpatory evidence. Cash, 307
Ga. at 519 (2) (b) (iv) (citation and punctuation omitted). Of these
types of prejudice, the last is the most serious, “because the inability
of a defendant adequately to prepare his case skews the fairness of
the entire system.” Id. (citation and punctuation omitted). Accord
Weis v. State, 287 Ga. 46, 55 (1) (d) (694 SE2d 350) (2010) (possibility
of harm to defense is the “most serious” of the forms of prejudice
17 (quoting Barker, 407 U.S. at 532 (IV))).
At the hearing on Davis’s motion to dismiss, Davis testified
about the conditions of his confinement at the Fulton County jail,
citing gang violence within the jail, thefts of his belongings, inedible
food, extreme cold, and trauma from seeing another inmate who had
hanged himself. He also testified about the anxiety he experienced
from being separated from his children, not knowing when he would
go to trial, and the deaths of several people close to him during his
time in jail. Davis’s counsel further noted the defense’s concerns that
a particular eyewitness who was “crucial” to establishing exactly
how the shooting transpired might become uncooperative, although
he conceded he had been in touch with the witness and that she had
indicated she would accept a subpoena.
The trial court found that Davis had failed to establish any
actual prejudice. Noting the absence of any contemporaneous
documentation of Davis’s complaints about jail conditions and the
court’s own assessment that Davis was “obviously exaggerat[ing]” in
his testimony, the court found that Davis had offered no specific
18 evidence of undue oppressiveness or unusual anxiety. See Jackson
v. State, 272 Ga. 782, 785 (534 SE2d 796) (2000) (to show
oppressiveness, defendant must offer specific “proof of sub-standard
conditions or other oppressive factors beyond those that necessarily
attend imprisonment” (citation and punctuation omitted)).
Likewise, the court found no evidence of any prejudice to Davis’s
defense, noting that the witness in question was under subpoena.3
On this record, the trial court’s factual findings were not clearly
erroneous, and the court did not abuse its discretion in determining
that Davis failed to establish prejudice. See Weis, 287 Ga. at 55 (1)
(d) (no prejudice established where no witnesses were unavailable
for defense’s case-in-chief); Jackson, 272 Ga. at 785 (no prejudice
established where defense offered no evidence beyond “general
claims of anxiety [and] poor conditions” in the jail). See also
Sweatman v. State, 287 Ga. 872, 874-875 (4) (700 SE2d 579) (2010)
(trial court’s findings of fact on a speedy-trial claim are given
particular deference where they are “based on live testimony and
3 This witness did in fact testify at trial for the defense.
19 the trial court[’s] . . . opportunity to assess the credibility of the
witnesses”).
(e) Having assessed each of the Barker-Doggett factors, the trial
court concluded that, although the State was negligent in failing to
bring Davis to trial in a timely manner, that negligence was
outweighed by Davis’s “significant” delay in asserting his right to a
speedy trial, combined with the absence of any actual prejudice. This
conclusion was reasonable and did not amount to an abuse of
discretion. See Cash, 307 Ga. at 520 (2) (b) (iv). So we affirm the trial
court’s denial of Davis’s constitutional speedy-trial claim.
3. Davis next contends that the trial court erred by declining to
admit reverse 404 (b) evidence about an incident that occurred in
Alabama 16 months after Williams’s murder, in which Maye had
allegedly pulled a gun in a bar fight. Davis filed a pretrial notice of
intent, which stated that he intended to present this evidence to
show “Maye’s opportunity and intent to carry a gun on his person.”
See generally OCGA § 24-4-404 (b) (“[e]vidence of other crimes,
wrongs, or acts . . . may . . . be admissible [to show] opportunity[ or]
20 intent”). He claimed that this evidence was relevant to his self-
defense claim.
Davis contends that the trial court erred in “declining to admit”
this evidence. But Davis has failed to identify any ruling to that
effect by the trial court. Before trial, the court took the matter under
advisement without ruling on it. And at trial, a different judge, while
expressing skepticism about whether the evidence was admissible,
let Davis explore opportunities to introduce it. First, the court
allowed Davis’s counsel to voir dire Maye about this incident outside
the jury’s presence, but Maye asserted his privilege against self-
incrimination under the Fifth Amendment to the United States
Constitution and declined to testify further on the subject.4 Next, the
court agreed to Davis’s counsel’s request to have an out-of-state
subpoena issued for the police officer to whom Maye had allegedly
made a statement about the Alabama incident. But the next day,
4 Maye had already testified—at an earlier point during his testimony
and also outside the jury’s presence—that he had been arrested in connection with this incident but not yet charged and that his lawyer had instructed him not to discuss the case. 21 before the court issued anything, Davis’s counsel told the court that
the defense had decided to “move beyond” the issue, and no further
efforts were made to present this evidence. Absent a ruling
preventing Davis from introducing evidence of the prior incident,
and given his abandonment of the issue, Davis’s claim that the trial
court erred in this regard necessarily fails. See, e.g., Dobbins v.
State, 309 Ga. 163, 167 (3) (844 SE2d 814) (2020) (defendant could
not assert error in trial court’s failure to give a curative instruction
where the trial court offered to give such an instruction and
defendant declined).
4. In his final enumeration, Davis contends that his trial
counsel rendered ineffective assistance in two respects. To succeed
on a claim of ineffective assistance, a defendant must establish both
that his counsel’s performance was deficient and that he was
prejudiced as a result of that deficient performance. See Washington
v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022) (citing
Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80
LE2d 674) (1984)).
22 To prove deficient performance, a defendant must establish
that counsel “performed his duties in an objectively unreasonable
way, considering all the circumstances and in the light of prevailing
professional norms.” Washington, 313 Ga. at 773 (3) (citation and
punctuation omitted). To overcome the “strong presumption” that
counsel performed reasonably, the defendant must show that “no
reasonable lawyer would have done what his lawyer did, or would
have failed to do what his lawyer did not.” Id. (citation and
punctuation omitted). To prove prejudice, a defendant must
establish that there is a “reasonable probability that, but for
counsel’s deficiency, the result of the trial would have been
different.” Id. A reasonable probability is a probability “sufficient to
undermine confidence in the outcome” of the trial. Neal v. State, 313
Ga. 746, 751 (3) (873 SE2d 209) (2022) (citation and punctuation
omitted). An ineffective-assistance claim fails if the defendant fails
to establish either deficient performance or prejudice. See
Washington, 313 Ga. at 773 (3).
In reviewing a trial court’s determination on an ineffective-
23 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. See
Sullivan v. State, 301 Ga. 37, 40 (2) (799 SE2d 163) (2017).
(a) Davis first contends that trial counsel performed deficiently
by failing to call an expert witness “to explain bullet trajectory,” to
show that the shot to Williams’s back did not necessarily indicate
that he was being fired on while running away.
At the motion-for-new-trial hearing, Davis called a witness
whom the trial court qualified as a bullet-trajectory expert. That
witness testified that, after reviewing the evidence, he believed the
shooting could have taken place the way Davis described it: that is,
Davis had been firing from the ground, hit Williams first in the legs
as Williams approached him, and then, as Williams instinctively
began turning away, the fatal bullet hit him in the back. In addition
to this expert witness, Davis also called trial counsel, who testified
that he had not considered hiring a bullet-trajectory expert for trial.
Counsel testified that he believed the most critical fact to establish
24 in support of Davis’s self-defense claim was that Davis had fired his
gun from the ground and that he had believed he could establish this
fact through his cross-examination of the medical examiner. Counsel
also testified that, in hindsight, he should have done more to show
the jury that the shot to Williams’s back was not a straight shot fired
at him as he was running away.
Based on this record, Davis has failed to prove that trial
counsel’s performance was deficient. An attorney’s decision about
which defense witnesses to call is a classic matter of trial strategy,
and such a decision will not form the basis for an ineffectiveness
claim “unless it is so unreasonable that no competent attorney would
have made th[at] decision under the circumstances.” Sullivan v.
State, 308 Ga. 508, 511 (2) (a) (842 SE2d 5) (2020) (citation and
punctuation omitted). Accord Butler v. State, 313 Ga. 675, 684 (4) (b)
(872 SE2d 722) (2022). In addition, “hindsight has no place in an
assessment of the performance of trial counsel, and a lawyer second-
guessing his own performance with the benefit of hindsight has no
significance for an ineffective assistance of counsel claim.” Simpson
25 v. State, 298 Ga. 314, 318 (4) (781 SE2d 762) (2016) (citation and
punctuation omitted). Here, the record shows that trial counsel
made a strategic choice to establish the facts needed to support
Davis’s self-defense claim through cross-examination of the medical
examiner. And counsel succeeded in getting the medical examiner
to admit that Davis’s gunshot wounds could have been inflicted by
shots being fired from the ground, which counsel believed was the
critical fact. Davis has thus failed to overcome the strong
presumption that counsel’s performance was objectively reasonable.
See Birdow v. State, 305 Ga. 48, 52-53 (2) (823 SE2d 736) (2019) (no
deficient performance where counsel opted not to call defense expert
and instead relied on cross-examination of State’s witness to help
establish self-defense claim); Matthews v. State, 301 Ga. 286, 289 (2)
(800 SE2d 533) (2017) (no deficient performance where counsel
elected to use cross-examination and argument to advance defense
theory rather than calling defense expert). And counsel’s
assessment in hindsight that he could have done more does not
change this conclusion. See Simpson, 298 Ga. at 318 (4). So this
26 claim of ineffective assistance fails.
(b) Davis also contends that trial counsel’s handling of the
reverse 404 (b) evidence amounted to ineffective assistance. Davis
claims that the defense lost the opportunity to present evidence of
the Alabama bar incident, which showed “Maye’s inclination to pull
guns on other people,” because counsel was not prepared to present
an alternative witness when Maye asserted his Fifth Amendment
privilege.
This claim fails as well. Davis’s own description of the purpose
for offering this evidence makes clear that the evidence was
“propensity” evidence, which is not admissible. See OCGA § 24-4-
404 (a) (“Evidence of a person’s character or a trait of character shall
not be admissible for the purpose of proving action in conformity
therewith on a particular occasion.”); Roberts v. State, 315 Ga. 229,
235 (2) (a) (880 SE2d 501) (2022) (“[B]efore evidence of other acts is
admitted, the State has to show that the other act helps prove
something other than the defendant’s character or propensity for
wrongdoing.”). Although Davis argued before the trial court that the
27 evidence was being offered to show Maye’s “intent” and
“opportunity” to wield a gun, neither of these issues was relevant to
Davis’s self-defense claim: this evidence could have been helpful to
Davis only if the jury could infer that evidence that Maye brandished
a gun in an incident 16 months after this one made it more likely
that he brandished a gun here. That is textbook propensity evidence,
which the jury would not have been allowed to consider. See Roberts,
315 Ga. at 235 (2) (a); State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d
170) (2015). And failing to introduce inadmissible evidence is not
deficient performance. See Mosby v. State, 300 Ga. 450, 454 (2) (796
SE2d 277) (2017). Davis has therefore failed to prove ineffective
assistance on this ground.
Judgment affirmed. All the Justices concur.
28 Decided December 20, 2022.
Murder. Fulton Superior Court. Before Judge Leftridge.
Holly Y. Peace, for appellant.
Fani T. Willis, District Attorney, Lyndsey H. Rudder, Kevin C.
Armstrong, David K. Getachew-Smith, Sr., Burke O. Doherty,
Assistant District Attorneys; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant
Attorney General, for appellee.