313 Ga. 225 FINAL COPY
S21A1242. HARRIS v. THE STATE.
WARREN, Justice.
After a jury trial that was held in July and August 2019,
Demartre Harris was convicted of felony murder and other crimes
for his involvement in two drive-by shootings that injured Laundon
Alexander and Patrick Boyd and resulted in the death of Marcus
Bowden.1 Harris raises four claims of error on appeal: (1) that the
1 On November 7, 2017, a Muscogee County grand jury indicted Harris
for malice murder, felony murder (predicated on aggravated assault), three counts of aggravated assault (one predicated on the assault of Marcus Bowden, one predicated on the assault of Laundon Alexander, and one predicated on the assault of Patrick Boyd), possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The trial court granted the parties’ joint motion to bifurcate the trial, severing the possession-of-a- firearm-by-a-convicted-felon count from the other six counts. At a trial from July 29 to August 5, 2019, a jury found Harris not guilty of malice murder but guilty of the remaining charges. On July 29, 2019, Harris was sentenced to life in prison for felony murder, a consecutive 20 years (10 to serve) for the aggravated assault of Alexander, a concurrent 20 years (10 to serve) for the aggravated assault of Boyd, and a consecutive five years in prison for possession of a firearm during the commission of a felony. The State agreed to nolle pros Harris’s possession-of-a-firearm-by-a-convicted-felon charge. The aggravated assault count for the assault of Bowden merged into the felony murder count for purposes of sentencing. Through trial counsel, Harris filed a timely motion for new trial on August 26, 2019. On September 3, 2019, Harris evidence was insufficient to support his convictions; (2) that the trial
court erred by admitting evidence pertaining to the weapons and
ammunition that law enforcement officials found at the time of
Harris’s arrest; (3) that the trial court erred by admitting evidence
pertaining to Harris’s Facebook posts; and (4) that Harris received
constitutionally ineffective assistance of counsel because his trial
lawyer failed to call Dashauna Wilborn as a witness. For the
reasons explained below, we affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Harris’s trial showed the following. On
November 21, 2015, Harris picked up his girlfriend, Jackie Pearson,
from a Piggly Wiggly grocery store and the two of them then went to
the M&N Package Store in Columbus. As Pearson walked inside
the package store, three men, whom she did not know, walked out.
filed a second motion for new trial. Through new counsel, Harris filed an amended motion for new trial on June 18, 2020. After a hearing and after receiving leave from the trial court, Harris filed a second amended motion for new trial. On December 14, 2020, following multiple hearings on Harris’s motions for new trial, the trial court denied Harris’s motion. On December 30, 2020, Harris filed a timely notice of appeal. The case was docketed in this Court to the August 2021 term and submitted for a decision on the briefs. 2 When Pearson exited the store, she observed the same men “jumping
on” and “beating” Harris. The group of men who attacked Harris
included Boyd, Robert Oestricher, and Oestricher’s brother.
According to Oestricher, multiple other people ran from “Ms. Mary’s
house”—a nearby house where he and his friends would “hang
out”—to the package store when the fight broke out, and Boyd,
Oestricher, and Oestricher’s brother all ran back to Ms. Mary’s
house when the fight was over.
Harris was a member of the “Bounty Hunter Bloods” gang.
About 15 minutes after he was attacked, he sent a Facebook
message to a fellow gang member, Spencer Marshall, saying “Come
get me blood, I just got jumped.” As part of his exchange with
Marshall, Harris messaged, “Everybody dies.” Marshall later
testified that the men who attacked Harris were members of rival
gangs.
At approximately 6:00 p.m. on November 23—two days after
Harris was attacked—Alexander and Boyd were standing in the
yard at Ms. Mary’s house. Alexander was there to visit Bowden and
3 other friends. While Alexander and Boyd were standing in the yard,
Alexander heard a gunshot, and when he turned around he saw
more gunshots coming from a “white Explorer” with “at least two”
people in it. Alexander was shot in the thigh, and Boyd was shot in
the leg. Boyd testified that his “leg broke after being shot,” and he
spent about two weeks in the hospital recovering.
The police arrived after the shooting and collected a total of five
shell casings that were on a street adjacent to Ms. Mary’s house.
The shell casings included three Smith & Wesson .40-caliber shell
casings, one PMC .25-caliber shell casing, and one .22-caliber shell
casing.
The next day, Harris borrowed Pearson’s white Ford Explorer
at 11:00 a.m., when Pearson returned home from work. Antoine
Gardner left with Harris in the Explorer. At 11:30 a.m., Bowden
and Harold Prude visited Ms. Mary’s house; Bowden went inside but
Prude stayed outside. Prude testified that he was standing in the
yard near the fence when he heard gunshots coming from an “SUV”
that “looked like white, but I ain’t had time to stand there and look.”
4 Edward Wilson, who observed the shooting, believed the shots had
been fired from a white Explorer. Prude testified that “five or six”
gunshots were fired from the “back driver side” of the SUV. He could
not tell how many people were inside the SUV, but testified that “it
had to be two because somebody was driving.” When the shots
began, Prude ran toward the front of Ms. Mary’s house. When the
shooting stopped, Prude walked back “to see where everybody
escaped” and found Bowden lying wounded by the back door.
Bowden died of his injuries; an autopsy later revealed that he had
been shot once in the right buttock and once in the abdomen. At
approximately 11:45 a.m., Harris returned Pearson’s white
Explorer.
Officers arrived at the scene at about 11:55 a.m. and recovered
six .40-caliber bullets, two .40-caliber shell casings, and a 9
millimeter cartridge. Law enforcement officials identified Harris as
a suspect in Bowden’s murder, and in the course of looking for Harris
the next day, executed a search warrant on Gardner’s house. They
did not find Harris, but did find Gardner—who had left with Harris
5 in Pearson’s Explorer on the day of Bowden’s murder—and took him
into custody. Officers also seized a pink Walther .22-caliber semi-
automatic pistol that they found in the attic of Gardner’s house.
They also searched Pearson’s white Explorer and found a .22-caliber
shell casing under the rear passenger seat.
Approximately three months later, after further investigation
revealed Harris’s possible location, Lieutenant Lance Deaton and a
team of officers secured and executed a search warrant on a
residence that belonged to two of Harris’s friends. Once the officers
entered the home, they learned that Harris was barricaded inside
one of the bedrooms. Officers breached the door and took Harris into
custody. Under the cushion of the sofa located in the room in which
Harris barricaded himself, Lieutenant Deaton located a loaded
Taurus .45-caliber handgun with an extended magazine, along with
.223-caliber and .357-caliber ammunition. The handgun was not the
same caliber as the weapons believed to be used in the November 23
and 24 shootings.
At trial, a Georgia Bureau of Investigation (“GBI”) firearm
6 examiner testified that the .40-caliber cartridge cases found at the
scene of the November 24 shooting shared “individual
characteristics”—“scratches that were imparted to the bullet or to
the cartridge case when they were fired in that firearm”—with the
.40-caliber cartridge cases found at the November 23 shooting scene,
indicating they were fired from the same firearm. Specifically, the
individual characteristics on the cartridge cases indicated that the
firearm that imparted markings on both cartridge cases was a
Springfield, an FN Browning, or a Taurus .40-caliber semi-
automatic pistol. Moreover, the .40-caliber bullet recovered during
Bowden’s autopsy matched the .40-caliber casings recovered from
the November 23 and 24 shooting scenes. The State also introduced
evidence that on November 15, 2015—nearly a week before Harris
was attacked at the M&N Package Store—Harris told Marshall on
Facebook that he recently obtained an “XD Springfield .40.”
With respect to the .22-caliber shell casing officers retrieved
from Pearson’s white Explorer, the GBI firearm examiner testified
that the casing’s individual characteristics indicated it was fired
7 from the pink .22-caliber pistol found in the attic of Gardner’s house
when Gardner was arrested.
Finally, the State tendered an expert whom the trial court
qualified to testify about gang culture in the Columbus area. He
testified that a low-ranking member of a gang, like Harris, would be
required to retaliate against members of a different gang who
disrespected him in order to retain his position in the gang. As part
of the final jury instructions, the trial court charged on Georgia’s
“party to a crime statute,” OCGA § 16-2-20 (a), instructing the jury
that “[e]very party to a crime may be charged with and convicted of
commission of the crime.”
2. Harris contends that the evidence was legally insufficient to
support his convictions because the case against him was entirely
circumstantial and there was no direct evidence that he took part in
either the November 23 or 24 drive-by shootings. Specifically,
Harris asserts that there was no physical evidence and no witness
that placed him at the scene of either shooting; that no murder
weapon was ever found with respect to the November 24 shooting;
8 and that there was significant evidence that Gardner, who is now
deceased, was the person who shot and killed Bowden. Harris
argues that the State failed to exclude the reasonable hypothesis
that someone else—such as Gardner or another gang member—
committed the crimes of which he was convicted, which included the
murder of Bowden and the non-fatal shootings of Alexander and
Boyd. We disagree.
When evaluating a challenge to the sufficiency of the evidence [as a matter of constitutional due process], we view all of the evidence presented at trial in the light most favorable to the verdict[s] and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.
Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) (2018) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979)). “We leave to the jury the resolution of conflicts or
inconsistencies in the evidence, credibility of witnesses, and
reasonable inferences to be derived from the facts,” Smith v. State,
308 Ga. 81, 84 (839 SE2d 630) (2020), and we do not “reweigh the
evidence.” Ivey v. State, 305 Ga. 156, 159 (824 SE2d 242) (2019)
9 (citation and punctuation omitted).
As a matter of Georgia statutory law, “[t]o warrant a
conviction on circumstantial evidence, the proved facts shall not only
be consistent with the hypothesis of guilt, but shall exclude every
other reasonable hypothesis save that of the guilt of the accused.”
OCGA § 24-14-6. “Whether alternative hypotheses are reasonable,
however, is usually a question for the jury, and this Court will not
disturb the jury’s finding unless it is insufficient as a matter of law.”
Frazier v. State, 308 Ga. 450, 453 (841 SE2d 692) (2020).
The evidence here, although circumstantial, was sufficient to
convict Harris as a matter of constitutional due process and under
Georgia statutory law. To begin, the State introduced evidence that
Harris was a gang member and that he was attacked by rival gang
members days before the November 23 and 24 drive-by shootings.
Through its expert, the State also introduced evidence that Harris
had a motive to retaliate against the men who attacked him. The
State also established that the rival gang members who attacked
Harris tended to congregate at the house where the November 23
10 and 24 shootings occurred and that Harris observed his attackers
run away from the package store parking lot toward that house after
he was attacked. The State further showed that, in response to
questions about the attack, Harris messaged Marshall, “Everybody
dies,” from which the jury could infer that Harris had threatened to
kill the men who had attacked him at the package store. And when
police officers finally located Harris and sought to arrest him, Harris
barricaded himself in a room with a gun and ammunition.
As to the November 24 shooting, Pearson’s testimony placed
Harris with Gardner in Pearson’s white Explorer at 11:00 a.m.,
minutes before the 11:30 a.m. shooting that resulted in Bowden’s
death. And at least one witness placed a white Explorer at the scene
of the November 23 shooting, with a different witness placing a
white Explorer at the scene of the November 24 shooting. The
State’s ballistics expert also testified that the .40-caliber shell
casings recovered from the scene of the November 24 shooting
matched those recovered from the scene of the November 23
shooting, and Facebook posts showed that, days before the
11 shootings, Harris claimed to possess a particular brand of .40-caliber
gun—a Springfield—that, according to the State’s ballistics expert,
could have fired the .40-caliber shell casings recovered at the scene
of both shootings. Viewed as a whole, a reasonable juror could infer
from the evidence presented at trial and recounted in part above
that the same person or group of people were involved in both the
November 23 and 24 shootings and that Harris participated in those
crimes. And although the evidence against Harris was far from
overwhelming, it did allow a reasonable jury to conclude beyond a
reasonable doubt that Harris was at least a party to the crimes of
which he was convicted, and that there was no “reasonable
hypothesis,” OCGA § 24-14-6, other than Harris’s guilt. See Frazier,
308 Ga. at 453; OCGA § 16-2-20 (a) (“Every person concerned in the
commission of a crime is a party thereto and may be charged with
and convicted of commission of the crime.”).
3. Harris contends that the trial court erred by admitting
evidence of the weapons and ammunition officers found at the time
of Harris’s arrest. We disagree.
12 At trial, Harris’s counsel moved to exclude all testimony and
evidence relating to a gun and ammunition found on or near Harris
at the time of his arrest, arguing that it was irrelevant and unduly
prejudicial to Harris. The trial court denied that motion, and the
State admitted several photographs of the handgun and
ammunition that were found with Harris at the time of his arrest,
as well as the actual Taurus handgun and ammunition that officers
recovered. Lieutenant Deaton testified that as he arrested Harris,
Deaton recovered a bag with a “tremendous” amount of ammunition
in it. Later, during her closing argument, the prosecutor noted that
Harris was found with a “.45 caliber pistol with ammunition in the
. . . chamber, and it [was] cocked.”
In his motion for new trial, Harris argued that the trial court
violated OCGA §§ 24-4-401 (“Rule 401”) and 24-4-403 (“Rule 403”)
by allowing admission of testimony about Harris’s arrest as well as
photographs of physical evidence taken at the time of Harris’s
arrest, which was four months after the November 23 and 24
shootings. In the trial court’s order denying Harris’s motion for new
13 trial, the court reasoned that the “circumstances of Defendant’s
arrest, including evidence of the gun and ammunition, were relevant
to Defendant’s flight, his consciousness of guilt, and his willingness
to hide and arm himself for the encounter with law enforcement.”
On appeal, Harris again contends that this evidence was
irrelevant under Rule 401 and unfairly prejudicial under Rule 403.
The admission of evidence “lies within the sound discretion of the
trial court, whose decision will not be disturbed on appeal absent a
clear abuse of discretion.” Flannigan v. State, 305 Ga. 57, 62 (823
SE2d 743) (2019) (citation and punctuation omitted).
The trial court did not abuse its discretion by concluding that
the evidence the State presented about the handgun and
ammunition found with Harris at the time of his arrest was relevant
under Rule 401. Evidence is relevant if it has “any tendency to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without
the evidence.” OCGA § 24-4-401. Because Georgia’s Evidence Code
based its relevance definition on Rule 401 of the Federal Rules of
14 Evidence, we “look to decisions of the federal appeals courts
construing and applying the Federal Rules, especially the decisions
of the Eleventh Circuit,” Gates v. State, 298 Ga. 324, 327 (781 SE2d
772) (2016) (citations and punctuation omitted), and the Eleventh
Circuit has explained that it is “universally conceded that the fact of
an accused’s flight, escape from custody, resistance to arrest,
concealment, assumption of a false name, and related conduct, are
admissible as evidence of consciousness of guilt, and thus of guilt
itself.” United States v. Borders, 693 F2d 1318, 1324 (11th Cir. 1982)
(citation and punctuation omitted). See also Rowland v. State, 306
Ga. 59, 65 n.4 (829 SE2d 81) (2019) (“Evidence showing that a
defendant attempted to evade arrest . . . may be admissible as
evidence of flight, and statements about flight are generally
admissible as circumstantial evidence of guilt.”).
Moreover, we cannot say that the introduction of this evidence
was unduly prejudicial under Rule 403. “Relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
15 jury or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” OCGA § 24-4-403. “Rule 403
is an extraordinary remedy, which should be used only sparingly,
and the balance should be struck in favor of admissibility.” Carston
v. State, 310 Ga. 797, 803 (3) (b) (854 SE2d 684) (2021) (citation and
punctuation omitted). Therefore, “in reviewing issues under Rule
403, we look at the evidence in a light most favorable to its
admission, maximizing its probative value and minimizing its
undue prejudicial impact.” Id. (citation and punctuation omitted).
Here, the evidence related to Harris’s attempt to evade arrest
by barricading himself in a room—evidence that included the
handgun and ammunition that was found near Harris at the time of
his arrest—had probative value because it suggested that Harris
had a reason to evade law enforcement officers and therefore
demonstrated Harris’s consciousness of guilt. And in a
circumstantial case like this one, the need for this type of evidence
was greater because it provided an additional set of facts from which
the jury was authorized to infer Harris’s guilt. See Rowland, 306
16 Ga. at 65 n.4.
Nor does the danger of unfair prejudice substantially outweigh
the probative value of the evidence that was admitted. That is
particularly true because the State did not argue that the gun and
ammunition recovered during Harris’s arrest were used in the
November 23 or 24 shootings. And even though “inculpatory
evidence is inherently prejudicial” in a criminal case, Rule 403 does
not bar admission of such evidence merely because the defendant
might suffer some amount of prejudice upon its introduction; it “is
only when unfair prejudice substantially outweighs probative value
that the rule permits exclusion,” Anglin v. State, 302 Ga. 333, 337
(806 SE2d 573) (2017) (citation and punctuation omitted; emphasis
in original), and Harris has not shown that he suffered such
prejudice. Accordingly, the trial court did not abuse its discretion
when it admitted evidence of the handgun and ammunition that
were found with Harris when he was arrested.
4. Harris contends that the trial court erred by admitting
evidence of his Facebook posts. Prior to trial, Harris made a motion
17 to exclude “any picture of the defendant with a firearm,” arguing
that such photographs were irrelevant and prejudicial. Due to the
“overly broad” language in the motion, the trial court declined to rule
on the motion at that time and instead decided to evaluate the
admissibility of any contested pictures on a “photo-by-photo” basis
during trial.
To that end, during Marshall’s direct examination, the State
attempted to introduce a series of message exchanges on Facebook
between Harris and Marshall, which included a photograph Harris
sent of an “XD Springfield 40”—a gun Harris claimed to possess.
The State argued that the picture and messages were relevant
because they were sent on November 14, 2015, ten days before
Bowden’s murder, and the gun pictured in Harris’s Facebook
messages was one of the types of guns that the State’s expert
testified could have fired the .40-caliber rounds found after both the
November 23 and 24 shootings. The trial court overruled Harris’s
objection, concluding that the photograph was relevant and that the
evidence did not violate Rule 403.
18 The trial court did not abuse its discretion in concluding that
the photograph and messages in question were relevant. That
Harris claimed to possess a gun that could have been used in the
November 23 and 24 shootings—namely, the “XD Springfield 40”
that is one of only three brands the State’s ballistics expert said
could have fired the .40-caliber rounds recovered from the scene of
both shootings—is a “fact that is of consequence to the
determination of the action[,]” OCGA § 24-4-401, because it had a
tendency to make it more probable that one of the weapons used in
the shootings belonged to Harris.
Nor did the trial court abuse its discretion in concluding that
the admission of the Facebook evidence did not violate Rule 403.
Even to the extent the Facebook picture and messages were
prejudicial to his defense, he has not shown that they were unfairly
prejudicial. See Anglin, 302 Ga. at 337. And any prejudicial effect
Harris suffered as a result of the admission of that evidence was
outweighed by its probative value, especially given that it was used
to show—in a circumstantial case in which no murder weapon was
19 found—that Harris had in his possession approximately one week
prior to the shootings a type of gun that could have been used in
those shootings. See Johnson v. State, 312 Ga. 481, 493 (863 SE2d
137) (2021) (holding that the trial court did not abuse its discretion
in admitting evidence over a Rule 403 objection when it was not a
“matter of scant or cumulative probative force, dragged in by the
heels for the sake of its prejudicial effect”) (citations and punctuation
omitted).
5. Harris contends that his trial counsel provided ineffective
assistance under the Sixth Amendment to the United States
Constitution because she failed to call Dashauna Wilborn as a
witness at trial. His claim fails, however, because he has not shown
that his counsel’s performance was deficient.
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
20 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a
defendant must demonstrate that his attorney “performed at trial in
an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms.” Romer v. State,
293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466
U.S. at 687-688. To satisfy the prejudice prong, a defendant must
establish a reasonable probability that, in the absence of counsel’s
deficient performance, the result of the trial would have been
different. See Strickland, 466 U.S. at 694. “If an appellant fails to
meet his or her burden of proving either prong of the Strickland test,
the reviewing court does not have to examine the other prong.”
Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
Harris contends that his trial counsel should have called
Wilborn as a witness at trial because she saw Harris being attacked
at the M&N Package Store and also observed the November 23 and
24 shootings. According to Harris, Wilborn would have testified that
Pearson’s white Explorer was not the same SUV used in the
November 23 and 24 shootings.
21 At the hearing on Harris’s motion for new trial, Wilborn
testified that she saw people shooting out of a “white Expedition”
during the November 23 shooting, that a “white Tahoe” was used
during the November 24 shooting, and that the white Expedition
used in the November 23 shooting was not the same white SUV that
she saw Harris leave in after he was attacked at the package store
days earlier. In denying Harris’s motion for new trial, the trial court
made specific findings about Wilborn’s credibility, including:
First, Ms. Wilborn never spoke with the police on the day or night of the shootings despite claiming to have had a clear view of those shootings and despite personally knowing the victims. Second, when she did speak with the police a few days after the murder, she gave them far less information than she testified to during the motion for new trial hearing five years later, and she in fact told the police she was unable to provide further information. . . . ... Fifth, while Ms. Wilborn testified at the post-trial hearing that the vehicle involved in the November 21 assault was a Ford Explorer, she did not make such a statement to the police after the shooting. Similarly, while she testified at the post-trial hearing that the vehicle involved in the November 24 murder was a Tahoe, there is no indication she told the police that when questioned after the shooting. While she did apparently tell the police that the vehicle involved on November 23
22 was “different from that of today’s date” (presumably November 24), she “was unable to provide any further details about what occurred.” It seems likely that her memory and knowledge of the events she claims to have witnessed would have been far better when she spoke with the police days after the murder than it was at the time of the post-trial hearing, nearly five years after the murder. This casts doubt on her 2020 testimony.
The trial court ultimately concluded that
[i]t is not at all clear that Ms. Wilborn’s testimony (even if believed) would have likely led to a different outcome in this case or that it would have materially helped Defendant at all. Critically, other credible evidence supported the State’s theory that a white SUV was involved in all three incidents and that the Defendant had access to and use of a white SUV during the relevant times. While Ms. Wilborn identified three different vehicle models, she nonetheless testified that a white SUV was involved in all three incidents. This testimony could have easily hurt, rather than helped, the defense.
We “ordinarily afford great deference to credibility
determinations by trial courts, including in the motion-for-new-trial
context,” Debelbot v. State, 305 Ga. 534, 540 (826 SE2d 129) (2019),
and we cannot say that the trial court’s credibility findings were
clearly erroneous here. See Grimes v. State, 296 Ga. 337, 346 (766
SE2d 72) (2014) (“In the absence of a showing of clear error, we do
23 not disturb the trial court’s credibility determinations.”). Especially
given Wilborn’s inconsistent testimony at the hearing on the motion
for new trial as compared to her statements shortly after the
shootings, “the failure of counsel to call [her] as a witness at trial
was not deficient performance.” Huff v. State, 299 Ga. 801, 806 (792
SE2d 368) (2016). See also Washington v. State, 294 Ga. 560, 566
(755 SE2d 160) (2014) (“It is settled that the determination of which
defense witnesses to call . . . [is a] matter[ ] of trial strategy and
tactics, and such strategic and tactical decisions do not amount to
deficient performance unless they are so unreasonable that no
competent attorney would have made them under similar
circumstances.”).2
2 In support of his argument that his trial counsel provided constitutionally ineffective assistance, Harris points to Cartwright v. Caldwell, 305 Ga. 371 (825 SE2d 168) (2019), a habeas case in which this Court concluded that trial counsel performed deficiently when he failed to cross-examine a particular witness to “cast doubt on the credibility of the State and one of its key witnesses and to bolster Cartwright’s alibi defense.” Id. at 379. But Cartwright is distinguishable; among other reasons, we concluded in that case that there was “no indication . . . that [the uncalled witness] would not have been credible or would have refused to testify if called.” Id. at 379. Here, by contrast, the trial court expressly found that the uncalled witness, Wilborn, lacked credibility when she testified about the very issue Harris contends was
24 And even though trial counsel testified at the motion-for-new-
trial hearing that she “d[id] not know” why she did not call Wilborn
as a witness at trial, an attorney’s professed reason for making a
decision at trial does not determine whether the attorney’s
performance was deficient under Strickland. Indeed, Strickland
imposes an “objectively unreasonable” standard for analyzing
deficiency, Romer, 293 Ga. at 344, and in light of the trial court’s
express findings about Wilborn’s credibility, we cannot say that trial
counsel was objectively unreasonable not to call Wilborn as a
witness, see Strickland, 466 U.S. at 687-688.
Judgment affirmed. All the Justices concur.
so critical for his case. Unlike with the witness in Cartwright, we cannot say that it was objectively unreasonable for trial counsel not to call Wilborn as a witness in Harris’s trial. 25 Decided February 15, 2022.
Murder. Muscogee Superior Court. Before Judge Land.
Angela B. Dillon, for appellant.
Mark P. Jones, District Attorney, Frederick Lewis, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Eric C. Peters, Assistant Attorney
General, for appellee.