NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: March 17, 2026
S26A0125. DILL v. THE STATE.
WARREN, Presiding Justice.
Appellant Carlos Dill was convicted of malice murder and other
crimes in connection with the shooting death of Jonathan Stafford.1
In this appeal, Dill contends that the evidence was legally
1 Stafford was killed on November 26, 2021. In February 2022, a Fulton County grand jury indicted Dill for malice murder, four counts of felony murder, armed robbery, aggravated battery, aggravated assault, possession of a firearm during the commission of a felony, possession of a firearm by a convicted felon, and possession of a firearm by a convicted felon during the commission of a felony. At a trial from June 12 to 15, 2023, the jury found him guilty of all counts. The trial court sentenced him as a recidivist under OCGA § 17-10-7(c) to serve consecutive sentences of life in prison without the possibility of parole for malice murder and armed robbery and 15 consecutive years, suspended, for possession of a firearm by a convicted felon during the commission of a felony. The remaining counts were vacated or merged. Dill filed a premature motion for new trial, which ripened upon the entry of the final disposition order. See, e.g., Fripp v. State, 322 Ga. 269, 269 n.1 (2025). Dill later amended the motion through new counsel, and after holding evidentiary hearings, the trial court denied it on April 14, 2025. Dill filed a timely notice of appeal, which he amended twice. The case was then docketed to the term of this Court beginning in December 2025 and submitted for a decision on the briefs. insufficient to support his convictions, the trial court abused its
discretion by failing to remove a juror, and his trial counsel provided
constitutionally ineffective assistance. For the reasons explained
below, we affirm.
1. The evidence presented at Dill’s trial showed the following.
In August 2021, Dill began dating Tatiana Willis-Riley; he soon
became “controlling” and “verbal[ly] abus[ive].” He “continuously
call[ed her] phone”; threatened to “break in[to her] house”; tried “to
break in[to her] window”; and drove by her workplace. On
November 25, 2021, Willis-Riley, who lived in Atlanta, traveled to
Alabama to spend Thanksgiving Day with her friend Stafford and
his family. Around 6:30 p.m., Willis-Riley posted on social media a
photo of Stafford preparing food. Over the next hour and a half,
dozens of calls were made from Dill’s social media account to Willis-
Riley; Willis-Riley ignored many of the calls, but she sometimes
answered and then ended the call. At some point, Stafford answered
one of the calls, and Dill said, “Who the f**k are you[?]”
During this same timeframe, Dill’s social media account also
2 sent many text messages to Willis-Riley. Around 6:35 p.m., Dill’s
account sent a text saying, “F**ked up how you couldn’t spend the
holiday with me but you around a whole n**ga and his folks.” Willis-
Riley texted that she was “done” and did not “wanna b[e] with” Dill.
Dill’s account texted: “You try me and put a n**ga on the phone”;
“You most definitely just f**ked up with me n**ga”; “Letting a n**ga
answer … I can’t even do that”; and “Just disrespected me to the
fullest.” Willis-Riley texted that there was “[n]o love lost”; she was
“not [i]n [a] relationship with” Dill; and “the feelings [she] had [were]
gone.” After several more exchanges, Willis-Riley texted that she
was “not changing [her] mind”; she “wish[ed him] the best” and they
could “b[e] friend[s].” Dill’s account responded, “Just give up on me
like that.”2
Later that night, Willis-Riley and Stafford drove back to her
apartment in Atlanta, arriving around 12:30 a.m. After they parked
2 Willis-Riley also sent text messages to Dill’s account at several points
during the exchange, saying that he should “[s]top questioning” her; she planned to “block[ ]” him from texting and calling her; and he “ke[pt] calling,” which was the “main reason” she no longer wanted to be with him. She also asked him to “please stop calling” and “stop texting.” 3 Willis-Riley’s car, they walked toward her apartment; Stafford was
carrying Willis-Riley’s gun. Willis-Riley suddenly heard “gunshots”
and “tussling” behind her and saw Stafford “on the ground” and Dill
“with a gun.” Dill shot Stafford several times; took Willis-Riley’s
gun, which had fallen on the ground near Stafford; and then fled in
a white car. Willis-Riley called 911, and Stafford was taken to a
hospital, where he soon died.
Investigators obtained surveillance videos from Willis-Riley’s
apartment complex, which showed the following. At 7:10 p.m., more
than five hours before the shooting, a white car parked at Willis-
Riley’s complex; a man, whom Willis-Riley identified at trial as Dill,
could be seen near the car; at 7:43 p.m., the car left; it returned at
10:48 p.m. Around 12:30 a.m., Willis-Riley’s car parked at the
apartment complex, and Willis-Riley and Stafford walked toward
Willis-Riley’s apartment. Dill suddenly came into view of the
cameras, ducking behind several parked cars as he quickly followed
Willis-Riley and Stafford. He then ran behind Stafford and put a
gun to the back of Stafford’s head; they struggled for a few moments;
4 and Dill shot Stafford several times. Stafford fell to the ground as
Dill ran toward Willis-Riley, who tried to grab Dill’s arms. Dill then
fired more shots at Stafford, took a gun that was on the ground near
Stafford, and fled. Moments later, the white car pulled up near
where Stafford was lying on the ground and then quickly sped
away.3
Investigators collected six shell casings from the scene; the gun
used to shoot Stafford and Willis-Riley’s gun were never found. The
medical examiner who performed Stafford’s autopsy determined
that he had six gunshot wounds, with a wound to the torso causing
his death.
Dill was also shot in the torso at some point during the
incident. His mother took him to a hospital in the early morning
hours of November 26, 2021, and he was apprehended by
3 A surveillance video showed that after Dill fled, Willis-Riley went out
of view of the camera for more than two minutes, and when she returned, she stood near Stafford and used her cell phone; she did not render aid to Stafford. Willis-Riley, who was a certified medical assistant, later testified that she was “in shock” and that a neighbor told her not to touch Stafford. She also testified that she did not have a romantic relationship with Stafford. 5 investigators there. Dill did not testify at trial; his defense was that
the shooting amounted only to voluntary manslaughter because
Willis-Riley “wanted” Dill to see her with Stafford when she arrived
at her apartment complex, such that he was then provoked to kill
Stafford.4
2. Dill first contends that the evidence presented at his trial
was not sufficient as a matter of constitutional due process to
support his conviction for malice murder. See OCGA § 16-5-1(a) (“A
person commits the offense of murder when he unlawfully and with
malice aforethought, either express or implied, causes the death of
another human being.”).5 He argues, as he did at trial, that the
evidence supported, at most, a conviction for voluntary
manslaughter because Willis-Riley brought Stafford to her
apartment “in an effort to antagonize” Dill, which provoked Dill to
4 The trial court instructed the jury on voluntary manslaughter.
5 Dill makes no specific arguments about the sufficiency of the evidence
supporting his remaining convictions, so we do not review them. See Davenport v. State, 309 Ga. 385, 398–99 (2020). See also, e.g., Sinkfield v. State, 318 Ga. 531, 537 n.4 (2024). 6 shoot Stafford as the result of a sudden, violent, and irresistible
passion that was reasonable under the circumstances. See OCGA
§ 16-5-2(a) (“A person commits the offense of voluntary
manslaughter when he causes the death of another human being
under circumstances which would otherwise be murder and if he
acts solely as the result of a sudden, violent, and irresistible passion
resulting from serious provocation sufficient to excite such passion
in a reasonable person[.]”). This claim fails.
In evaluating the constitutional sufficiency of the evidence, we
view all of the evidence presented at trial in the light most favorable
to the verdicts and consider whether any rational juror could have
found the defendant guilty beyond a reasonable doubt of the crime
of which he was convicted. See Jackson v. Virginia, 443 US 307, 319
(1979). “This Court does not reweigh evidence or resolve conflicts in
testimony but rather defers to the jury’s assessment of the weight
and credibility of the evidence.” Jones v. State, 314 Ga. 692, 695
(2022) (cleaned up). Moreover, “whether or not a provocation, if any,
is such a serious provocation as would be sufficient to excite a
7 sudden, violent, and irresistible passion in a reasonable person,
reducing the offense from murder to manslaughter, is generally a
question for the jury.” Id. (cleaned up).
Here, the jury was authorized to reject Dill’s theory of
voluntary manslaughter and to instead find that there was ample
evidence that he formed the malice necessary to establish malice
murder. See Weston v. State, 321 Ga. 554, 556 (2025) (explaining
that the requisite criminal intent for malice murder “is that of
malice, which incorporates the intent to kill” and “may be formed in
an instant, as long as it is present at the time of the killing,” and
that “[w]hether a killing was intentional and malicious is for the jury
to determine” (quotation marks omitted)). In this respect, the
evidence indicated that several hours before the shooting, Dill felt
“disrespected” because Willis-Riley ended their relationship and
spent Thanksgiving Day with Stafford; Dill went to Willis-Riley’s
apartment complex at 7:10 p.m. and again at 10:48 p.m.; and he
waited nearly two hours until Willis-Riley and Stafford arrived
around 12:30 a.m. Dill then concealed himself behind cars in the
8 parking lot as he followed Willis-Riley and Stafford, ran behind
Stafford, pointed a gun at the back of his head, shot him several
times, continued to shoot after Stafford fell to the ground, and fled.
Based on this evidence, the jury, which was fully instructed on
voluntary manslaughter and malice murder, could have reasonably
concluded that the “provocation” Dill alleged—Willis-Riley’s act of
walking with Stafford to her apartment—was not sufficient to excite
the deadly passion of a reasonable person and that the shooting was
instead intentional and malicious.
Accordingly, the evidence presented at trial was
constitutionally sufficient to authorize a rational jury to reject Dill’s
theory of voluntary manslaughter and to find him guilty beyond a
reasonable doubt of malice murder. See Soto v. State, 303 Ga. 517,
519 (2018) (holding that the evidence was constitutionally sufficient
to support the appellant’s conviction for malice murder, rather than
voluntary manslaughter, because although the appellant claimed
that he shot the victim after he saw her “embrace and kiss” another
man, the man testified that he did not have a romantic relationship
9 with the victim and that she merely shook his hand, and “even if
[they] did embrace and kiss, the jury was nevertheless authorized to
conclude that such provocation would not have excited a reasonable
person to kill”); Dawson v. State, 300 Ga. 332, 333–34 (2016)
(holding that the evidence was sufficient as a matter of
constitutional due process to support the appellant’s conviction for
malice murder, rather than voluntary manslaughter, where he
sneaked into his estranged wife’s house after she told him she was
seeing another man, waited for them to go to sleep, stabbed them
multiple times, continued to stab the man after he tried to get under
the bed, and fled). 6
3. Dill also argues that the trial court abused its discretion by
failing to remove one of the jurors at his trial. We disagree.
(a) After a lunch break during Willis-Riley’s testimony, one of
6 To the extent Dill argues that the evidence was not sufficient under
OCGA § 24-14-6 because it was solely circumstantial and failed to “exclude every other reasonable hypothesis save that of the guilt of the accused,” any such claim fails. OCGA § 24-14-6 does not apply when, as in this case, there was direct evidence of the appellant’s guilt. See, e.g., Robinson v. State, 323 Ga. 7, 12 (2025) (explaining that an eyewitness’s testimony that the appellant shot toward him and the murder victim was direct evidence, such that OCGA § 24-14-6 did not apply). 10 the prosecutors told the trial court, outside the presence of the jury,
that she had learned that Willis-Riley was in the hallway outside
the courtroom with her lawyer and a victim advocate during the
recess; she was “crying”; a juror “went up to [Willis-Riley] and asked
if [she could] give [Willis-Riley] a hug”; the victim advocate said,
“[N]o”; and the juror walked away. Dill moved for a mistrial, and,
alternatively, asked the court to remove the juror.
The trial court had the juror brought to the courtroom and
asked about the interaction with Willis-Riley. The juror said that
she was “an empathetic person”; she “saw [Willis-Riley’s] pain”; she
“wanted to hug her”; and after the interaction, she “thought about”
it and “caught [her]self.” When asked if other jurors were nearby,
the juror said she “was one of the last people to leave” the courtroom
and she “got lost” for a moment in the hallway before heading in the
right direction toward the elevator, where she saw Willis-Riley. The
trial court then asked: “[Y]ou don’t find that you are already making
up your mind about what’s to happen in this case because of your
empathetic reaction to someone in pain?” The juror said, “I do not.”
11 The juror offered to no longer serve on the jury, and the trial court
responded that it would “like [her] to continue to serve as long as
that’s proper, and [her] feeling empathy towards anyone is not an
issue.” The juror then said that her desire to hug Willis-Riley
“wasn’t significant” and had to do with Willis-Riley’s “behavior and
how she felt and what [the juror] sensed at that time. It had nothing
to do with the court.” The trial court asked if the parties wanted to
ask the juror any additional questions, and they said, “No.” The trial
court had the jury brought to the courtroom and instructed that it
was to base its verdict solely on the evidence and “not … on
sympathy or affection or favor.”7 The State then continued its direct
examination of Willis-Riley.
(b) “A defendant is entitled to trial by a jury untainted by
improper influence,” and “[i]mproper communication with a juror
raises a presumption of prejudice to the defendant, which the State
must rebut beyond a reasonable doubt.” Collins v. State, 290 Ga.
7 The court gave a substantially similar instruction during its final charge. 12 505, 506 (2012). We have recognized, however, that “some improper
communications are inconsequential.” Id. at 507 (quotation marks
omitted). “To upset a jury verdict, the improper communication
must have been so prejudicial that the verdict is deemed inherently
lacking in due process.” Id. (quotation marks omitted). See also,
e.g., Chance v. State, 291 Ga. 241, 243–44 (2012).
The record in this case supports the trial court’s finding that
the improper interaction between the juror and Willis-Riley was
“inconsequential.” Collins, 290 Ga. at 507; Chance, 291 Ga. at 243.
To that end, the record shows that what happened during the brief
interaction at issue was undisputed, and there was no discussion
about the merits of the case during that interaction. Moreover, the
interaction was not observed by or conveyed to the other jurors, and
the juror who engaged in the interaction assured the court that her
reaction to seeing Willis-Riley crying in the hallway was not related
to Willis-Riley’s testimony and that her ability to fairly assess the
case was not affected by her “empathetic reaction.” Under these
circumstances, the trial court was authorized to conclude that
13 although the improper interaction was presumptively prejudicial,
see Collins, 290 Ga. at 507, the State rebutted that presumption
beyond a reasonable doubt. See Chance, 291 Ga. at 243–44
(concluding that the trial court did not abuse its discretion by
deciding not to remove a juror who communicated with an assistant
district attorney about his upcoming wedding during the appellant’s
trial because the communication was not about the merits of the
case; the communication was “quickly terminated”; the juror
“indicated that he could still be fair and impartial and decide the
case based on the evidence”; and the “very brief contact was
immediately brought to the trial court’s attention,” such that “the
prosecutor rebutted any presumption of harm”); Collins, 290 Ga. at
507 (holding that the trial court did not err by refusing to remove a
juror after a member of the victim’s family approached the juror and
asked the juror to tell a mutual friend that she was “still looking for
a job,” as the communication was “clearly inconsequential, because
the record leaves no reasonable doubt that the juror contact caused
no prejudice to [the a]ppellant” (quotation marks omitted)); State v.
14 Clements, 289 Ga. 640, 643 (2011) (concluding that the record
supported the trial court’s determination that a juror’s discussion of
her selection for jury service with her husband was “inconsequential
in light of the uncontradicted evidence” that the juror did not discuss
the merits of the case, such that the improper communication “was
not so prejudicial as to have contributed to the conviction and was
harmless beyond a reasonable doubt”).
And to the extent Dill contends that the trial court abused its
discretion by failing to remove the juror because her attempt to hug
Willis-Riley showed that she believed Willis-Riley’s testimony and
had thus formed an opinion about Dill’s guilt, any such claim fails.8
“OCGA § 15-12-172 vests the trial court with broad discretion to
replace a juror with an alternate at any point during the proceedings
where, among other reasons, it is shown that the juror is unable to
perform his or her duty or legal cause exists.” Morrell v. State, 313
8 Dill does not expressly assert that the presumption of prejudice that
applies to his claim that the juror’s attempt to hug Willis-Riley was an “improper communication,” see, e.g., Collins, 290 Ga. at 506, also applies to his argument that the juror had formed an opinion about his guilt. 15 Ga. 247, 263 (2022). 9 “To excuse for cause a selected juror in a
criminal case on the statutory ground that her ability to be fair and
impartial is substantially impaired, a challenger must show that the
juror holds an opinion of the guilt or innocence of the defendant that
is so fixed and definite that the juror will not be able to set it aside
and decide the case on the evidence or the court’s charge on the
evidence.” Id. (quotation marks omitted).
Here, the trial court asked the juror who tried to hug Willis-
Riley whether she was “already making up [her] mind about what’s
to happen in this case because of [her] empathetic reaction,” and the
juror replied that she was not. And, as discussed above, the juror
assured the court that her attempt to hug Willis-Riley was related
only to Willis-Riley’s “behavior” in the hallway, not her testimony in
the courtroom. The juror did not express a fixed opinion about Dill’s
guilt or innocence. Nor did she indicate that she would not be able
9 OCGA § 15-12-172 says, in pertinent part, “If at any time, whether
before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” 16 to decide the case based on the evidence presented at trial and the
trial court’s instructions, including the court’s instruction that the
jury was not permitted to base its verdict “on sympathy or affection
or favor.” Thus, the trial court did not abuse its discretion by
deciding not to remove the juror. See, e.g., Morrell, 313 Ga. at 263–
64 (holding that the trial court did not abuse its discretion by
deciding not to remove a juror whose “boyfriend’s mother was killed
and the defendant [in that case] was found not guilty after a trial”
because even though the juror told the trial court outside the
presence of the rest of the jury that she did not expect to “get this
emotional” and expressed doubts about her ability to remain
impartial, she “did not express a fixed opinion about [the appellant’s]
guilt or innocence and did not “unequivocally indicate that she
would be unable to decide the case based upon the evidence
presented at trial and the trial court’s instructions”); Clements, 289
Ga. at 644–45 (concluding that the trial court did not abuse its
discretion by determining from the juror’s “answers to [the judge’s]
targeted questions” that even though she expressed concern that her
17 husband, who had coached the appellant, might have difficulty
getting a coaching job “due to the outcome of th[e] trial,” the juror
“was truthful and sincere as to her assertion that she had no fixed
and definite opinion about [the appellant’s] guilt or innocence and
that she was able to set aside her concern about the impact of any
verdict on her husband’s future job and decide the case based upon
the evidence or the court’s charge upon the evidence” (quotation
marks omitted)). 10
4. Finally, Dill claims that his trial counsel provided
constitutionally ineffective assistance by failing to disclose certain
evidence to the State before attempting to introduce it at trial and
by failing to prepare Dill for cross-examination, which, he says,
resulted in “an involuntary waiver of his right to testify.” To prevail
10 Dill also seems to argue that the trial court abused its discretion by
failing to question each juror about the interaction and by failing to grant his motion for a mistrial, but he did not separately enumerate those issues as error. See, e.g., Moss v. State, 323 Ga. 143, 148 n.6 (2025). And in any event, they are not preserved for our review because Dill failed to request that the trial court question each juror, see Clark v. State, 315 Ga. 1, 5 (2022), and he failed to renew his motion for a mistrial after the trial court gave its curative instruction, see Clark v. State, S26A0250, slip op. at 7 (Ga. Feb. 3, 2026) (2026 WL 271243). 18 on these claims, Dill must establish that trial counsel’s performance
was constitutionally deficient and that he suffered prejudice as a
result. See Strickland v. Washington, 466 US 668, 687 (1984);
Blalock v. State, 320 Ga. 694, 697 (2025). To prove deficient
performance, Dill must show that counsel “performed at trial in an
objectively unreasonable way considering all the circumstances and
in the light of prevailing professional norms.” Blalock, 320 Ga. at
697 (quotation marks omitted). See also Strickland, 466 US at 687–
91. To prove prejudice, Dill must establish a reasonable probability
that, but for counsel’s deficient performance, the result of the trial
would have been different. See Strickland, 466 US at 694; Blalock,
320 Ga. at 697. We need not address both parts of the Strickland
test if Dill does not meet his burden of establishing one. See
Strickland, 466 US at 697; Blalock, 320 Ga. at 697. As discussed
below, Dill’s ineffectiveness claims fail.
(a) Dill asserts that trial counsel was ineffective for failing to
timely disclose to the State evidence of a screenshot of his phone,
which indicated that at 12:30 a.m. on November 26, 2021, moments
19 before the shooting, there was a “missed call” from Willis-Riley’s
phone. The trial court ultimately excluded the evidence on the
ground that it was not timely disclosed. See OCGA § 17-16-4(b)(1).11
At the hearing on Dill’s motion for new trial, trial counsel testified
that she wanted to use the evidence of the missed call to “contradict[
] the State’s theory that it was … Dill initiating all contact and
getting nothing back from [Willis-Riley]” and that Willis-Riley’s
“reaching out to [Dill] would [have] support[ed the] theory that [Dill]
acted out of passion” when he killed Stafford. Assuming (without
deciding) that trial counsel performed deficiently by failing to timely
disclose the evidence of the missed call, which led to its exclusion at
trial, Dill has not shown a reasonable probability that the outcome
of his trial would have been different if the evidence had been
admitted.
To begin, the evidence showing that Willis-Riley’s phone called
Dill a few minutes before the shooting would have done little to
11 Dill does not contend that the trial court abused its discretion by excluding the evidence, and we express no opinion on that issue. 20 undermine the substantial evidence indicating that Dill harassed
Willis-Riley by repeatedly calling and texting her that day. The
State presented evidence that dozens of calls were made from Dill’s
social media account to Willis-Riley between around 6:30 p.m. and
8:00 p.m. on November 25, 2021; Willis-Riley ignored most of the
calls; and when she sometimes answered, she soon ended the call.
Dill’s account also repeatedly texted Willis-Riley during the same
timeframe, despite her responses that she no longer wanted to be in
a relationship with Dill and her requests that he stop calling and
texting. In sum, the evidence of a single missed call from Willis-
Riley to Dill near the time of the shooting would have had little, if
any, effect on the jury’s assessment of the other, substantial
evidence indicating that Dill refused to leave Willis-Riley alone.
See, e.g., Blalock, 320 Ga. at 702 (concluding that the appellants had
not shown prejudice from trial counsel’s failure to introduce certain
evidence that the appellants claimed would have undermined the
State’s ballistics evidence because the evidence “d[id] nothing to
undermine other strong evidence” showing where the fatal shot was
21 fired from).
Moreover, the evidence of the missed call would not have added
any significant support to Dill’s theory that the killing amounted to
voluntary manslaughter, rather than malice murder. Indeed, the
screenshot showing the missed call did not establish why Willis-
Riley might have called Dill or even that she called him purposely,
as opposed to by accident. And as discussed above, the State
presented strong evidence establishing that Dill acted with malice
when he shot Stafford. In this respect, the evidence showed that
after calls and texts were repeatedly initiated from Dill’s social
media account to Willis-Riley, including a text about how she
“disrespected” Dill by spending Thanksgiving Day with Stafford,
Dill went to Willis-Riley’s apartment complex and lay in wait before
he ambushed Willis-Riley and Stafford, shot Stafford six times, and
then fled. By contrast, the evidence supporting Dill’s theory that the
killing amounted only to voluntary manslaughter was not
particularly compelling. A reasonable juror likely would have
rejected the idea that the alleged provocation—Dill seeing Willis-
22 Riley and Stafford walk to her apartment together—was sufficient
to provoke in a reasonable person an irresistible passion to kill
Stafford. See OCGA § 16-5-2(a). And it is not probable that the
evidence of the single missed call from Willis-Riley would have
persuaded the jury to conclude that Dill was reasonably provoked
and thus guilty of voluntary manslaughter instead of malice
murder.
Thus, Dill has not established a reasonable probability that the
outcome of his trial would have been different if trial counsel had
timely disclosed to the State the screenshot showing the missed call,
such that it would not have been excluded from evidence on that
ground. Accordingly, this claim of ineffective assistance fails. See
Blalock, 320 Ga. at 702. See also Isaac v. State, 319 Ga. 25, 31–32
(2024) (holding that trial counsel was not ineffective because the
appellant had not established prejudice from counsel’s failure to
present certain evidence, in light of the “strong” evidence of the
appellant’s guilt); Harper v. State, 318 Ga. 185, 193 (2024)
(concluding that the appellant’s trial attorneys were not ineffective
23 for failing to introduce certain evidence because the appellant could
not show prejudice, as he had not established that the evidence could
have “successfully bolstered his trial counsel’s defense strategy at
trial”). 12
(b) Dill also claims that trial counsel was ineffective for failing
to prepare him for cross-examination, which, he says, resulted in “an
involuntary waiver of his right to testify.” Specifically, Dill asserts
that before trial, he decided that he would not testify, so he “was not
prepared to take the stand”; after the trial court excluded the
evidence of the missed call from Willis-Riley’s phone, counsel failed
to “re-address the issue” of whether Dill wanted to testify, and “[a]s
12In his appellate brief, Dill baldly asserts that we should presume prejudice because his ineffectiveness claim falls into the “constructive denial of counsel” exception to Strickland. But as we have explained, “this exception … applies only when there is a breakdown in the adversarial process, such that counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Isaac, 319 Ga. at 29 (cleaned up). Because counsel’s failure to timely disclose the screenshot of the missed call is not the sort of “complete” failure to subject the State’s case to meaningful adversarial testing to which a presumption of prejudice applies, we apply the Strickland standard. Id. at 30 (explaining that for the constructive denial of counsel exception to apply, counsel’s failure must be “complete and occur throughout the proceeding and not merely at specific points” (quotation marks omitted)). Cf., e.g., Blalock, 320 Ga. at 702 (applying the Strickland standard to a claim that trial counsel was ineffective for failing to introduce certain evidence at trial). 24 a result, [Dill] could not make a voluntary and informed decision as
to whether he should take the stand in his defense.” Dill has not
established that counsel performed deficiently in this respect.
The record shows that after the trial court excluded the
evidence of the missed call from Willis-Riley’s phone, the court
explained to Dill that he had a right to testify, “no one c[ould]
prevent [him]” from testifying, and whether to testify was his
decision. The trial court then asked Dill if he wanted to testify, and
he said, “No.”
At the hearing on Dill’s motion for new trial, trial counsel
testified that before trial, Dill “did not seem interested” in testifying;
she did not believe “that he could add anything by testifying”; she
did not “go through a sample cross examination” with Dill because
the decision not to testify was made prior to trial, and she informed
Dill that he had a right to testify and that whether to testify was
ultimately his decision. She also testified that after the trial court
excluded the evidence of the missed call, she did not ask Dill again
if he wanted to testify, and she had no strategic reason for failing to
25 do so. Dill testified at the hearing that on the day of jury selection,
he and trial counsel discussed whether he would testify, and he
decided not to testify; his decision did not rest on the assumption
that the evidence of the missed call would be admitted; after the trial
court excluded the evidence of the missed call, he and counsel had
another conversation about whether he would testify; counsel
advised Dill not to testify because she was concerned that he might
admit guilt; Dill made the ultimate decision not to testify; and Dill
was also concerned that if he testified, he might have “sa[id] some
things that were close to admitting guilt.”
“A strategic decision will not form the basis for an ineffective
assistance of counsel claim unless it was so patently unreasonable
that no competent attorney would have done the same.” Green v.
State, 311 Ga. 238, 246 (2021) (quotation marks omitted). Such
strategic decisions include the decision to advise a defendant not to
testify. See id. Moreover, “the decision whether to testify in one’s
own defense is a tactical decision to be made by the defendant
himself after consultation with trial counsel.” State v. Goff, 308 Ga.
26 330, 334 (2020) (quotation marks omitted).
Here, counsel testified at the motion for new trial hearing that
she determined that Dill’s testimony would not “add anything” to his
defense. And the evidence presented at the hearing supports a
finding that Dill did not express a desire to testify and that he and
counsel were concerned that if he did so, he might admit guilt. Thus,
counsel’s decision not to spend time prior to trial preparing Dill for
cross-examination was objectively reasonable.
And although Dill now argues that trial counsel should have
revisited the issue of whether Dill wanted to testify after the trial
court excluded the evidence of the missed call from Willis-Riley’s
phone (and counsel testified at the motion for new trial hearing that
she failed to revisit the issue and had no strategic reason for that
failure), the trial court was authorized to credit Dill’s testimony at
the hearing that counsel did in fact consult with him about testifying
after the evidence was excluded and that she advised him not to
testify because she was concerned that he would admit guilt. See
Anthony v. State, 311 Ga. 293, 297 (2021) (explaining that a trial
27 court is authorized to credit a witness’s testimony at the motion for
new trial hearing, even though it conflicts with other testimony at
the hearing, and that “in the absence of explicit factual and
credibility findings by the trial court, we presume implicit findings
were made supporting the trial court’s decision” (quotation marks
omitted)). And even if the trial court credited counsel’s testimony
on this point, a reasonable lawyer could have concluded that the
exclusion of the evidence of the missed call would not have affected
Dill’s decision not to testify, particularly given counsel’s assessment
that Dill’s testimony would not have been helpful, her concern
(which Dill shared) that he might admit guilt, and Dill’s assertion at
the motion for new trial hearing that the decision not to testify never
rested on an assumption that the evidence of the missed call would
be admitted.
Moreover, the record shows that trial counsel and the trial
court advised Dill that he had a right to testify and that the decision
whether to testify was ultimately his to make. And Dill testified at
the motion for new trial hearing that he personally made the
28 decision not to testify. See Nabors v. State, 320 Ga. 43, 50 (2024)
(“[W]hen a defendant has been advised of his rights and makes an
informed decision after consultation with trial counsel, a defendant’s
failure to testify on his own behalf [is not] in any way connected to
any alleged deficiency of his trial counsel.” (cleaned up)).
For all of these reasons, Dill has not established that trial
counsel performed deficiently with respect to Dill’s decision not to
testify. And that means that his claim of ineffectiveness fails. See
Goff, 308 Ga. at 334 (holding that trial counsel was not deficient for
advising the defendant against offering testimony in support of his
voluntary manslaughter theory because counsel was concerned
about how the defendant would perform on cross-examination and
because “a decision by [the defendant] to testify would have carried
the significant risks inherent in testimony by a defendant”); Gibson
v. State, 290 Ga. 6, 12 (2011) (concluding that trial counsel was not
deficient for failing to call the defendant to testify because the
defendant never indicated that he wanted to testify and he was
advised that the decision whether to testify was his to make); Wright
29 v. State, 285 Ga. 428, 434 (2009) (rejecting the defendant’s claim
“that her attorneys were ineffective by strongly advising her not to
testify at trial, and consequently, by failing to prepare her to testify,
thereby constructively denying her right to do so” because the
defendant was informed that whether to testify was her decision,
she affirmed that it was her personal decision not to testify, and her
attorneys testified at the motion for new trial hearing that they
advised her not to testify out of tactical concerns; and noting that
“[i]nasmuch as counsel’s goal was to keep [the defendant] from
taking the stand, counsel cannot be found to have been deficient for
any failure to prepare [her] to testify”).
Judgment affirmed. All the Justices concur.