310 Ga. 231 FINAL COPY
S20A0986. HENDERSON v. THE STATE.
BETHEL, Justice.
A Gwinnett County jury found Arion Henderson guilty of
malice murder, felony murder, and aggravated assault in connection
with the death of his grandfather, William Stridiron. Henderson
contends that the State violated his constitutional right to a speedy
trial and that his trial counsel provided constitutionally ineffective
assistance in several regards. For the reasons set forth below, we
affirm.1
1 The crimes occurred sometime between January 9 and 13, 2012. On
April 11, 2012, a Gwinnett County grand jury indicted Henderson for malice murder, felony murder predicated on aggravated assault, and aggravated assault. In a jury trial held from June 15 to 17, 2015, Henderson was found guilty on all counts. The trial court sentenced Henderson to life in prison without the possibility of parole on the malice murder count. The felony murder count was vacated by operation of law, and the aggravated assault count merged with the malice murder count. On June 18, 2015, Henderson filed a motion for new trial through trial counsel. He later amended the motion twice through new counsel. After a hearing, the trial court denied the motion for new trial, as amended, on December 17, 2019. Henderson filed a notice of appeal on January 13, 2020. His case was docketed to this Court’s April 2020 term and submitted for a decision on the briefs. 1. The Jury Had Sufficient Evidence to Find Henderson Guilty.
Viewed in the light most favorable to the jury’s verdict, the
evidence presented at trial showed the following. After an accident,
Stridiron suffered nerve damage and a spinal injury that disabled
him. In December 2011, after Henderson moved in with Stridiron,
Stridiron expressed concerns to his caretaker that Henderson “had
a lot of rage” and was disrespectful to him. Stridiron said that his
physical condition would leave him unable to defend himself in an
altercation with Henderson.
Later that month, an investigator responded to a domestic
violence call at Stridiron’s apartment. Henderson was present when
the investigator arrived and said that he and Stridiron had argued.
Visibly upset, Stridiron told the investigator that Henderson
disrespected him by stealing his marijuana and that he wanted
Henderson to leave the apartment. After the incident, Henderson
gathered his belongings and agreed to move out of the apartment.
After Henderson moved out, Stridiron suspected that Henderson
was sneaking into his apartment to steal food, clothes, and other
2 items. In response, Stridiron installed new locks to prevent
Henderson from accessing his apartment.
Stridiron’s caretaker last saw him on Monday, January 9,
2012, and talked to him on the phone that evening after she left
work. On Friday, January 13, after several unanswered calls to
Stridiron, the caretaker called his apartment complex to request a
welfare check. That same day, an apartment complex employee and
a law enforcement officer conducted a welfare check at Stridiron’s
apartment. Because Stridiron had recently replaced the front door
lock, the key did not work, so the employee crawled into the
apartment through an unlocked window. In the apartment’s back
bedroom, the employee found Stridiron’s body lying face down and
covered with a blanket. Stridiron was dead. The officer testified that
it appeared as though someone had poured bleach on Stridiron’s
clothing.
In the apartment’s entryway, a large carpet piece was missing.
The employee and officer noticed blood spatter on water bottles near
the missing carpet area and red drag marks going from the entryway
3 toward the back bedroom where Stridiron’s body was found.
The medical examiner testified that Stridiron had four stab
wounds to his neck and shoulder that caused his death. A weapon
with one sharp edge and one blunt edge inflicted the stab wounds.
The state of Stridiron’s body at his autopsy indicated that at least
one day had passed between his death and his body’s discovery.
Officers noted an oval-shaped dust print in the shape of a
television on the surface of the bedroom dresser, but there was no
television in the room. Officers also found a broken six-inch steak
knife blade with a missing handle in the bedroom.
Henderson spoke with officers at Stridiron’s apartment. He
told them that he had clothes at his friend’s apartment, which was
located in the building across the parking lot from Stridiron’s
apartment building. Henderson took the officers to the friend’s
apartment, pulled a suitcase from the patio closet filled with clean
clothes that still had their original tags, and told the officers they
could go through the suitcase. Henderson told the officers that the
clothes belonged to Stridiron.
4 Henderson told an officer that he had an alibi for January 9
and 10 because he was staying with Anthony Miller. Henderson
then gave the officer an incorrect phone number for Miller. When
the officer went to Miller’s apartment to speak with him, the officer
saw Henderson leaving the same apartment. Miller agreed to speak
with the officer and got into the officer’s car. While Miller and the
officer were speaking, Henderson appeared antsy, walking back and
forth, moving in and out of Miller’s apartment.
At trial, Miller testified that, at the time he spoke to law
enforcement in January 2012, he had just met Henderson in the
neighborhood through his cousin. Miller met Henderson the week
before Stridiron’s death on January 4, hung out with him on
January 5, and did not see him at all on January 6. Contrary to
Henderson’s claims, Henderson did not stay with Miller on January
9 or 10, which were the Monday and Tuesday during the week of
Stridiron’s death. On January 11, Henderson told Miller that he had
an argument with Stridiron and pushed him and that Stridiron had
hit his head and stopped moving. On January 12, Henderson left
5 Miller’s apartment in the early morning and went back to Stridiron’s
apartment. Miller also bought a $150 television from Henderson,
which Henderson claimed belonged to him.
On January 12, after Henderson visited Stridiron’s apartment,
Miller and Henderson rode around in Stridiron’s van. Miller drove
the van and picked up some friends who stayed at his apartment.
Miller and Henderson parked the van in front of Stridiron’s
apartment. On the morning of Friday, January 13, Miller and
Henderson noticed crime scene tape around Stridiron’s apartment
building. Henderson went to check on Stridiron, and Miller returned
to his apartment. When Henderson came back to Miller’s apartment,
he told Miller not to say anything about the television to law
enforcement and to hide the television in the closet. Officers arrived
at Miller’s apartment about ten minutes later.
In Miller’s apartment, officers found a television covered with
a blanket. The television’s size matched the size of the dust print on
Stridiron’s bedroom dresser. Henderson told officers that he last saw
Stridiron in December, when the police responded to their argument
6 about Stridiron’s marijuana.
Officers searched the dumpster outside Stridiron’s apartment
complex and found the following items: the same type of trash bags
and latex gloves as those in Stridiron’s apartment; knives similar to
the knife blade found in the apartment; a bloody knife handle
wrapped in a paper towel and white tape; and one double-bound
trash bag that contained a bloodstained carpet piece that matched
the carpet from Stridiron’s apartment.
Despite Henderson’s claim that he had not been in Stridiron’s
van or apartment since he moved out a month earlier, officers found
Henderson’s “fresh” fingerprints on the GPS screen and exterior
mirror of Stridiron’s van, and a “fresh” palm print on a Chinese
takeout menu in Stridiron’s trash. They also found Henderson’s
fingerprints on the television in Miller’s apartment. However,
officers were unable to locate Stridiron’s cell phone, wallet, and car
keys during the investigation. The State also presented evidence
suggesting that Henderson had withdrawn money from Stridiron’s
7 bank account during the week of his death.2
DNA testing revealed that Stridiron and Henderson’s DNA
profiles were on the knife’s handle and that Stridiron’s DNA was on
the knife’s blade. The volume of epithelial skin cells found on the
knife’s handle matching Henderson was sufficient for the crime lab
to secure a full DNA profile. An expert in forensic serology testified
that this indicated that Henderson must have had more than casual
or brief contact with the knife handle. The expert testified that, to
have Henderson’s full DNA profile on the handle, he must have held
the handle for “quite a bit.”
2 After reviewing Stridiron’s bank account activity, officers noted three
suspicious transactions on January 9 and January 10, during the week of Stridiron’s death. In each of those transactions, approximately $300 was withdrawn from Stridiron’s checking account. Bank records also showed that an additional $500 in withdrawals were attempted from Stridiron’s account. Those attempted withdrawals were declined due to insufficient funds. These were the last transactions listed from Stridiron’s accounts. All six transactions occurred at an ATM located near Stridiron’s apartment. The State introduced surveillance video recordings from that location for January 9, 10, and 11. In the videos, a man resembling Henderson, not Stridiron, is seen using the ATM three times, once each day. He successfully withdrew cash at least once and was denied at least once for insufficient funds. The person in the video wore the same jacket or vest on January 9, 10, and 11. Investigators found the same jacket type in Stridiron’s hall closet.
8 Henderson does not challenge the legal sufficiency of the
evidence supporting his conviction for malice murder, the only crime
of which he was convicted. Nevertheless, it is our customary practice
in murder cases to review the record independently to determine
whether the evidence was legally sufficient with regard to the
offenses of which the appellant was convicted.3 Having done so, we
conclude that the evidence presented at trial and summarized above
was sufficient to authorize a rational trier of fact to find Henderson
guilty of malice murder. See Jackson v. Virginia, 443 U. S. 307, 319
(III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. The State Did Not Violate Henderson’s Right to a Speedy Trial.
Henderson contends that his constitutional right to a speedy
trial was denied. We disagree.
The United States Constitution guarantees that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy
3 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. See Davenport v. State, 309 Ga. 385, 392 (4) (846 SE2d 83) (2020). The Court began assigning cases to the December term on August 3, 2020. 9 and public trial,” U.S. Const. Amend. VI. Likewise, the Georgia
Constitution protects this same right “[i]n criminal cases, the
defendant shall have a public and speedy trial[.]” Ga. Const. of 1983,
Art. I, Sec. I, Par. XI (a).
In ruling on a defendant’s constitutional speedy trial claim, the
analysis proceeds in two stages. A trial court’s threshold inquiry is
“whether the interval from the accused’s arrest, indictment, or other
formal accusation to the trial is sufficiently long to be considered
presumptively prejudicial.” (Citation and punctuation omitted.)
Ruffin v. State, 284 Ga. 52, 55 (663 SE2d 189) (2008). If not, the
speedy trial claim fails at this threshold. See id.
However, if the delay is deemed presumptively prejudicial, the
trial court must consider the United States Supreme Court’s four
Barker-Doggett factors, which guide Georgia courts in considering
whether a delay violated an accused’s right to a speedy trial. See
Barker v. Wingo, 407 U. S. 514, 530 (92 SCt 2182, 33 LE2d 101)
(1972); Doggett v. United States, 505 U. S. 647, 652 (112 SCt 2686,
120 LE2d 520) (1992); see also Redd v. State, 261 Ga. 300, 301 n.1
10 (404 SE2d 264) (1991) (applying the Barker-Doggett factors to
speedy trial claims under the Georgia Constitution).
As we have explained,
[i]f the delay is long enough to invoke the presumption of prejudice, the trial court must balance four factors: (1) whether the delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for the delay, (3) whether, in due course, the defendant asserted his right to a speedy trial, and (4) whether he suffered prejudice as the delay’s result.
(Citations omitted.) Cash v. State, 307 Ga. 510, 513 (2) (a) (837 SE2d
280) (2019).
Speedytrial claims require trial courts “to engage in a difficult
and sensitive balancing process.” Ruffin, 284 Ga. at 56 (2) (quoting
Barker, 407 U. S. at 533). This task is committed principally to the
discretion of the trial court, and this Court has a “limited” role in
reviewing the trial court’s decision. State v. Buckner, 292 Ga. 390,
391 (738 SE2d 65) (2013).
[W]e must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.
11 Buckner, 292 Ga. at 391.
(a) Length of Delay. The right to a speedy trial attaches at the
time of arrest or formal accusation or indictment, whichever occurs
first, and courts measure the delay from the time the right attaches.
See Scandrett v. State, 279 Ga. 632, 633 (1) (a) (619 SE2d 603)
(2005). That time then runs until the date on which the defendant’s
trial begins. See Christian v. State, 281 Ga. 474, 476 (2) (640 SE2d
21) (2007). The delay in this case, calculated from Henderson’s
arrest on January 13, 2012, until the first day of his trial on June
15, 2015, was just over three-and-a-half years. As the trial court
found and the State concedes, this delay was “presumptively
prejudicial,” and the trial court was correct to weigh the length of
the delay against the State. See Goins v. State, 306 Ga. 55, 57 (2) (b)
(829 SE2d 89) (2019) (“A one-year delay is typically presumed to be
prejudicial.”).
(b) Reasons for the Delay. The trial court attributed the delays
in this case to both the State and Henderson. It did not abuse its
12 discretion in doing so.
Whether the defendant or the State bears the primary responsibility for delay in reaching trial is pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors. Deliberate delay is weighed heavily against the State. Delay resulting from neutral causes, such as negligence, has lighter weight. Of course, delay caused by the defense weighs against the defendant.
(Citation and punctuation omitted.) Burney v. State, 309 Ga. 273,
287 (4) (b) (845 SE2d 625) (2020).
In this case, the trial court attributed the delay in bringing
Henderson to trial both to the State’s backlog of cases and to the
actions of Henderson’s trial counsel. The court found that the State’s
role in the delay was benign, noting that an overcrowded docket
contributed to the delay. The court also noted that Henderson never
alleged that the State intentionally delayed bringing him to trial to
gain an advantage. The court also weighed the factor against
Henderson benignly, noting that his trial counsel filed 11 leaves of
absence, covering nearly 35% of the available trial dates from the
date of the indictment to the time of Henderson’s trial. Henderson’s
13 trial counsel also requested two continuances, resulting in an
additional four-to-five-month delay. See Williams v. State, 290 Ga.
24, 26 (2) (717 SE2d 640) (2011) (“[W]hen any portion of a delay in
trial is caused by or at the behest of defense counsel, it should not
be weighed against the State.”). These findings were not clearly
erroneous and support the trial court’s determination that
Henderson and the State both contributed to the delays.
Henderson also contends that the trial court should not have
blamed him for any of the delay following his indictment,
complaining that the court improperly cited his counsel’s consent to
a State-requested continuance for four to five months and attributed
the delay’s cause to Henderson. Henderson is correct that the State
caused this specific delay by requesting the continuance. However,
because Henderson consented to this continuance and its resulting
delay, the trial court did not abuse its discretion by weighing the
continuance lightly against the State.
(c) Defendant’s Assertion of the Right. The trial court
determined that Henderson invoked his statutory right to a speedy
14 trial roughly ten months after his indictment. The trial court noted
that Henderson later filed an out-of-time demand for speedy trial.
The record supports these findings.
In determining the weight to assign this assertion-of-the-right
factor, courts should consider the “timing, form, and vigor of the
accused’s demands to be tried immediately.” Ruffin, 284 Ga. at 63
(2). Henderson argues that the trial court improperly assessed his
assertion’s vigor and timing and should have weighed this factor
more in his favor. Henderson asserts that the trial court improperly
determined when he asserted this right by failing to consider
Henderson’s own pro se motions with the court and Henderson’s
private conversations with his counsel.
First, regarding Henderson’s pro se motions, this argument
has no merit. “A demand for speedy trial has no legal effect
whatsoever if filed by a defendant acting pro se at a time he is
represented by counsel.” (Citation and punctuation omitted.)
Redford v. State, 335 Ga. App. 682, 683 (782 SE2d 791) (2016); see
also Johnson v. State, 300 Ga. 252, 254 (794 SE2d 60) (2016). A
15 defendant “does not have the right to represent himself and also be
represented by an attorney.” (Citation and punctuation omitted.)
White v. State, 302 Ga. 315, 319 (806 SE2d 489) (2017). Any pro se
filings by represented parties are “unauthorized” nullities that are
“without effect.” Id. Thus, because the trial court could not consider
Henderson’s pro se motions, we also do not consider them in
assessing the trial court’s determination of when and in what
manner Henderson asserted his right to a speedy trial.
Second, Henderson also argues that the trial court failed to
consider private conversations between him and his trial counsel
where he asserted his right to a speedy trial to his counsel even
before the indictment. This argument also lacks merit. To invoke
this right to a speedy trial, the accused must assert it to the court.
Privileged, off-the-record conversations cannot serve as a sufficient
assertion of this right, as neither the trial court nor the State are
put on notice of such privately made assertions until they are
relayed through counsel. “[T]he accused bears some responsibility to
invoke the speedy trial right and put the government on notice that
16 he or she, unlike so many other criminal defendants, would prefer
to be tried as soon as possible.” (Emphasis supplied.) Ruffin, 284 Ga.
at 62 (2); see also Dillard v. State, 297 Ga. 756, 761 (4) (778 SE2d
184) (2015) (“While appellant was not required to seek a speedy trial
at the first available opportunity, it was incumbent upon him to put
the State on notice that he preferred to be tried as soon as possible.”).
Lastly, we consider whether Henderson’s demand for a speedy
trial required greater weight than the trial court gave it. On October
31, 2012, Henderson, through counsel, filed an untimely statutory
demand for speedy trial pursuant to OCGA § 17-7-171, which
included an assertion of his constitutional right to a speedy trial.
This statute requires that a statutory demand for a speedy trial be
filed: either (1) within the term of court in which the indictment was
returned, or (2) during the next succeeding regular term of court.
See OCGA § 17-7-171. In this case, OCGA § 15-6-3 (20) provides that
terms of court for Gwinnett County Superior Court begin on the first
Monday in March, June, and December and the second Monday in
September. The statute thus allowed Henderson to file his statutory
17 demand during the March 2012 term, which is the term in which he
was indicted, or the June 2012 term, which was the next succeeding
term. However, Henderson did not file his demand until the
September 2012 term. Accordingly, Henderson’s statutory demand
for speedy trial failed to comply with these statutory requirements
and was properly deemed “untimely” by the trial court. However,
even though the statutory demand was untimely, the constitutional
assertion that accompanied it was not, as a defendant may file an
assertion based on his constitutional right to a speedy trial at any
time after arrest. See Dillard, 297 Ga. at 761 (4).
On November 8, 2012, after realizing the statutory demand
was untimely, Henderson, through counsel, filed an out-of-time
speedy trial demand “without leave of court” asserting both his
statutory and constitutional right to a speedy trial. Although the
trial court found that the statutory speedy trial demand was
untimely, the court concluded that for purposes of the Barker-
Doggett balancing test, it would consider that Henderson did invoke
his right to a speedy trial.
18 We agree that the filing of a speedy trial demand would
typically weigh in a defendant’s favor in determining when he
asserted his constitutional right to a speedy trial. However, when
assessing the weight to give the statutory demand, it was within the
trial court’s discretion to consider the assertions’ “timing, form, and
vigor[.]” Ruffin, 284 Ga. at 63 (2). Moreover, even though the
constitutional assertion was timely, Henderson has relied in his
arguments in the trial court and on appeal almost exclusively on the
statutory demand. Given that Henderson’s statutory speedy trial
demand did not comply with the requirements of OCGA § 17-7-171
and his inattention to the constitutional assertion, as well as his
delays in asserting his rights to a speedy trial, we hold that it was
not an abuse of discretion for the trial court to weigh this factor
neither for nor against Henderson.
(d) Prejudice to the Defendant. The trial court did not abuse its
discretion when it determined that Henderson failed to establish
prejudice arising out of the alleged violation of his right to a speedy
trial. The prejudice associated with unreasonable delay before trial
19 includes “oppressive pretrial incarceration, anxiety and concern of
the accused, and the possibility that the (accused’s) defense will be
impaired by dimming memories and loss of exculpatory evidence.”
(Citation and punctuation omitted.) Doggett, 505 U. S. at 654 (III)
(A). “Of these forms of prejudice, the most serious is the last, because
the inability of a defendant adequately to prepare his case skews the
fairness of the entire system.” (Citation and punctuation omitted.)
Id.
Henderson argues that he suffered prejudice in two ways: by
suffering from anxiety due to his pre-trial confinement, and by
losing the ability to present an alibi defense. The trial court did not
abuse its discretion by rejecting both contentions.
Henderson asserts that he experienced extreme anxiety and
concern when his trial delay caused him to develop an overall
distrust in the judicial system and a loss of his support system.
However, as we have noted, “[a]nxiety and concern of the accused
are always present to some extent, and thus absent some unusual
showing are not likely to be determinative in defendant’s favor.”
20 (Citation and punctuation omitted.) Mullinax v. State, 273 Ga. 756,
759 (2) (545 SE2d 891) (2001). Because the trial court did not clearly
err in finding that Henderson’s anxiety was not unusual or
extraordinary for a criminal defendant awaiting trial, we see no
abuse of discretion in its determination that Henderson was not
prejudiced in this regard.
Henderson also contends that the delays in bringing him to
trial impaired his alibi defense because his ex-girlfriend, Shawnice
Gibbs, broke up with him and did not testify at trial. Henderson
claims her testimony would have established an alibi defense for
him. Henderson does not explain how the termination of their
relationship impaired Gibbs’s ability to testify truthfully. Moreover,
the trial court correctly noted that other than Henderson’s own
claims regarding Gibbs’s potential testimony, Henderson did not
provide any evidence that Gibbs’s testimony at trial would have
corroborated Henderson’s story or that Henderson sought to contact
her as a trial witness or secure her attendance at trial. See Johnson
v. State, 268 Ga. 416, 418 (2) (490 SE2d 91) (1997) (no showing of
21 prejudice where the defendant speculated about possible
exculpatory witnesses but presented no evidence that those
witnesses would have testified or what their testimony might have
shown). Contrary to Henderson’s assertions, the trial court noted
that, had Gibbs testified, her testimony likely would have hurt
Henderson’s alibi defense. For instance, despite Henderson claiming
that Gibbs could provide his alibi, Gibbs told investigators that she
had not been with Henderson at all during the week of the murder.
Accordingly, we find no abuse of discretion in the trial court’s
determination that the delay in bringing Henderson to trial did not
prejudice his ability to present an alibi defense involving Gibbs’s
testimony.
In sum, although the delays in this case were presumptively
prejudicial, we cannot say that the trial court abused its discretion
in applying the Barker-Doggett factors to determine that the other
factors weighed neutrally against a determination that Henderson’s
constitutional right to a speedy trial was violated. Nor was there any
clear error in the factual findings supporting those determinations.
22 This enumeration of error therefore fails.
3. Henderson Did Not Receive Ineffective Assistance of Counsel.
Henderson also contends that his trial counsel provided
constitutionally ineffective assistance. We disagree.
To succeed on his claims, Henderson must show that his
counsel’s performance was professionally deficient and that he
suffered prejudice as a result. See Strickland v. Washington, 466 U.
S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To establish
deficient performance, Henderson must prove that his lawyer
“performed his duties in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing
professional norms.” Thornton v. State, 307 Ga. 121, 126 (3) (834
SE2d 814) (2019). “To establish prejudice, [Henderson] must prove
that there is a reasonable probability that, but for counsel’s
deficiency, the result of the trial would have been different.” Id. “It
is not enough ‘to show that the errors had some conceivable effect on
the outcome of the proceeding.’” Harrington v. Richter, 562 U. S. 86,
104 (131 SCt 770, 178 LE2d 624) (2011) (quoting Strickland, 466 U.
23 S. at 693). Rather, Henderson must establish a “reasonable
probability” of a different result, which means “a probability
sufficient to undermine confidence in the outcome.” Strickland, 466
U. S. at 694. Finally, “[i]f [Henderson] fails to meet either prong of
the Strickland test, it is not incumbent upon this Court to examine
the other prong.” Green v. State, 291 Ga. 579, 580 (2) (731 SE2d 359)
(2012).
(a) Failing to File a Timely Statutory Demand for Speedy Trial.
Henderson first asserts that his trial counsel provided
constitutionally ineffective assistance by failing to calculate court
terms correctly for filing a timely statutory demand for a speedy trial
under OCGA § 17-7-171. This claim lacks merit.
We have considered this issue before. With facts somewhat
analogous to this case, in Crawford v. Thompson, 278 Ga. 517 (603
SE2d 259) (2004), this Court held that trial counsel performed
deficiently by failing to comply with the strict requirements of
24 OCGA § 17-7-171 by citing the wrong statute.4 We also held that
trial counsel’s error prejudiced the defendant in that the defendant
could not exercise his right to a speedy trial. See Crawford, 278 Ga.
at 520 n.3. However, that analysis was erroneous under Strickland,
and for the reasons set forth below, we overrule Crawford’s prejudice
analysis.
Under the doctrine of stare decisis, courts generally stand by
their prior decisions, because doing so “promotes the evenhanded,
predictable, and consistent development of legal principles, fosters
reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Duke v. State, 306 Ga.
171, 183-184 (829 SE2d 348) (2019) (punctuation omitted) (citing
State v. Hudson, 293 Ga. 656, 661 (748 SE2d 910) (2013)). “Stare
decisis, however, is not an ‘inexorable command.’” Id. at 184 (quoting
4 We note that Crawford involved a claim of ineffective assistance of
appellate counsel in which the defendant claimed that his appellate counsel was deficient in failing to enumerate as error a claim of ineffective assistance of trial counsel based on trial counsel’s failure to file a proper demand for speedy trial under OCGA § 17-7-171. See Crawford, 278 Ga. at 520. Our consideration goes to the soundness of our ruling as to the underlying claim of ineffective assistance of trial counsel. 25 Hudson, 293 Ga. at 661). “‘Courts, like individuals, but with more
caution and deliberation, must sometimes reconsider what has been
already carefully considered, and rectify their own mistakes.’” Id.
(quoting City of Atlanta v. First Presbyterian Church, 86 Ga. 730,
733 (13 SE 252) (1891)). “In reconsidering our prior decisions, ‘we
must balance the importance of having the questions decided
against the importance of having it decided right.’” (Emphasis in
original.) Id. (quoting State v. Jackson, 287 Ga. 646, 658 (5) (697
SE2d 757) (2010)). “To that end, we have developed a test that
considers ‘the age of the precedent, the reliance interests at stake,
the workability of the decisions, and most importantly, the
soundness of its reasoning.’” (Emphasis omitted.) Id. (quoting
Jackson, 287 Ga. at 658 (5)).
In Crawford, this Court held that trial counsel’s failure to file
a timely statutory speedy trial demand prejudiced the defendant
under Strickland. We see several reasons to revisit Crawford’s
prejudice analysis.
First, Crawford relied upon a speculative analysis to determine
26 that the defendant suffered prejudice. Crawford held that due to
trial counsel’s deficient performance, the defendant had failed to
comply with the statutory speedy trial requirements. See Crawford,
278 Ga. at 518. The Crawford court noted that it would not
“speculate” as to whether “the State would have tried [the
defendant] had [his trial counsel] acted in strict statutory
compliance” with the filing requirements. Id at 520 n.2. But our
review of Crawford shows that the court did just that.
Strickland places a heavy burden on the defendant to
“affirmatively prove” prejudice through evidence of a “reasonable
probability” of a different result. Pierce v. State, 286 Ga. 194, 198
(686 SE2d 656) (2009). Our conclusion that the defendant in
Crawford satisfied this burden was wrong as Crawford presumed
prejudice based on deficiency. In Crawford, it is clear that the
defendant did not demonstrate actual prejudice, which he could only
do by showing that, had his counsel actually filed a proper statutory
speedy trial demand, the State would not have been able to try him
on time. See Hughley v. State, 355 Ga. App. 189, 195 (843 SE2d 622)
27 (2020) (defendant unable to show Strickland prejudice because he
could not “prove whether he would have been tried earlier if his trial
counsel had properly filed a speedy trial demand”); see also Bigham
v. State, 296 Ga. 267, 271 (765 SE2d 917) (2014) (“[B]ecause a
defendant can be re-indicted after the grant of a special demurrer, a
failure to file such a demurrer generally will not support a finding
of ineffective assistance of counsel.” (citation and punctuation
omitted)). Absent this affirmative showing of prejudice, the only
argument the Crawford defendant provided was his speculative
assertion that prejudice would have occurred. But as we have noted,
“mere speculation on the defendant’s part is insufficient to establish
Strickland prejudice.” Pierce, 286 Ga. at 198.
Second, we also held in Crawford that the defendant suffered
prejudice, not because he was not discharged, but because he could
not exercise his statutory right to a speedy trial. See Crawford, 278
Ga. at 520 n.3. That conclusion is also erroneous. If Crawford was
correct, it would follow that any time a trial lawyer improperly filed
a statutory speedy trial demand, the defendant would automatically
28 suffer Strickland prejudice and have a winning claim of ineffective
assistance of counsel after being found guilty at trial. This is
inconsistent with the Strickland prejudice analysis, which gauges
the effect of a lawyer’s error on the outcome of the proceedings. See
Strickland, 466 U. S. at 694. We cannot categorize a delay in a
proceeding as per se determinative of that proceeding’s outcome.
We conclude that Crawford’s prejudice analysis was
speculative, incorrect, and resulted in an incorrect holding. This
significant unsoundness cuts “heavily in favor of overruling
[Crawford].” Olevik v. State, 302 Ga. 228, 245 (2) (c) (iv) (806 SE2d
505) (2017). We turn to the other stare decisis factors to evaluate
whether any of them alone or in combination weigh in favor of saving
this incorrect decision.
As for the age of the decision, Crawford was decided 16 years
ago, “and we have overruled decisions older than that.” Olevik, 302
Ga. at 245 (2) (c) (iv). See also Duke, 306 Ga. 171 (overruling a case
that had been decided 19 years previously). Crawford is “neither
ancient nor entrenched” within our judicial system. (Citation and
29 punctuation omitted.) Southall v. State, 300 Ga. 462, 468 (1) (796
SE2d 261) (2017). Moreover, neither this Court nor the Court of
Appeals has ever relied upon Crawford’s prejudice analysis
regarding the untimely filing of a statutory demand for a speedy
trial. With respect to reliance and workability, we see no reason to
save the rule in Crawford. As discussed above, Crawford employs a
test that presumed prejudice based on deficiency. A Strickland claim
requires a showing of actual prejudice to the defendant flowing from
counsel’s defective performance. See Keller v. State, 308 Ga. 492, 496
(842 SE2d 22) (2020). Crawford deviates from this standard and
lowers the burden that an appellant must satisfy in bringing a claim
of constitutionally ineffective assistance.
Accordingly, we overrule Crawford to the extent it held that
the untimely filing of a statutory speedy trial demand under OCGA
§ 17-7-171 always results in Strickland prejudice. This is not to say
that failing to file a timely statutory speedy trial demand can never
result in Strickland prejudice, but that is a case-by-case
determination.
30 Having overruled Crawford, we must now determine whether
the trial court erred by determining that Henderson did not suffer
prejudice as the result of counsel’s failure to file a timely statutory
demand for speedy trial. Henderson claims that this failure to timely
file a speedy trial demand and subsequent delay in his trial
prejudiced him by contributing to his distrust in the judicial system
and by losing contact with his ex-girlfriend, Gibbs. We disagree that
Henderson has established prejudice under Strickland because he
has not demonstrated a reasonable probability that had his counsel
filed a proper speedy trial demand, his trial’s outcome would have
been different. See Strickland, 466 U. S. at 694.
As the trial court properly noted, filing a statutory speedy trial
demand would not have automatically resulted in Henderson’s
acquittal as Henderson suggests, but would likely have sent
Henderson to trial earlier and given his counsel less time to prepare
a defense. In light of the overwhelming evidence against him,
Henderson has not shown that holding his trial earlier would have
resulted in a different outcome. He therefore has not satisfied his
31 burden of demonstrating that counsel’s conduct caused him
prejudice. Accordingly, this claim of ineffective assistance fails.
(b) Failing to Reasonably Investigate Alibi Witnesses.
constitutionally ineffective assistance by failing to make a
reasonable investigation of alibi witnesses that might have aided his
case. We disagree.
Henderson claims that his trial counsel did not investigate his
case or interview possible witnesses that could have provided an
alibi, including Gibbs, Shaquille Clarke, and Thomas Tribble.
Concerning the adequacy of investigations, “counsel has a duty to
make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary,” and heavy
deference is given to counsel’s judgments. (Citation and punctuation
omitted.) Wiggins v. Smith, 539 U. S. 510, 521-522 (II) (A) (123 SCt
2527, 156 LE2d 471) (2003). Here, the trial court properly found that
Henderson’s trial counsel moved for additional investigative funds,
filed motions seeking discovery, and hired an investigator who
32 interviewed defense witnesses, photographed the crime scene, and
subpoenaed phone records. Specifically, trial counsel testified at the
motion for new trial hearing that she had advised the investigator
to reach out to Gibbs, Clarke, and Tribble, but they could not be
found or could not testify to a credible alibi defense on Henderson’s
behalf.
Henderson was required to offer more than “mere speculation”
that Gibbs, Clarke, and Tribble would have bolstered his defense.
See Mangrum v. State, 291 Ga. 529, 531 (731 SE2d 761) (2012).
Henderson has failed to point this Court to any additional efforts
that could have been made to gain information about the case from
Gibbs, Clark, or Tribble or to any additional defense witnesses who
might have been found through reasonable investigative efforts.
Henderson has thus failed to demonstrate how his trial counsel
performed deficiently with regard to her investigation of the case
and possible defenses, and this claim of ineffective assistance fails.
(c) Failing to Impeach Witness with Phone Records. Henderson
also claims that his counsel provided ineffective assistance by failing
33 to use phone records to impeach Anthony Miller, one of the State’s
witnesses. Miller testified that Henderson told him that he had an
argument with Stridiron and pushed him and that Stridiron had hit
his head and stopped moving. Miller also testified that Henderson
left Miller’s apartment early Thursday morning and went back to
Stridiron’s apartment and that Miller bought a television from
Henderson.
On cross-examination, trial counsel asked Miller questions
about a possible plea deal that he had entered into with the State in
exchange for his testimony and about his prior felony conviction for
possession of marijuana with the intent to distribute. Henderson
now asserts that his counsel should have also utilized certain phone
records during the cross-examination to contradict the information
Miller testified to at trial concerning Henderson’s whereabouts and
activities during the week of Stridiron’s death. At the hearing on his
motion for new trial, Henderson’s trial counsel testified that the
phone records included calls from Miller to Henderson prior to the
date that Miller testified they met as well as calls from Henderson
34 to Gibbs that contradicted Miller’s timeline.5
However, when asked about her decision not to use the phone
records to impeach Miller, trial counsel characterized her general
impeachment strategy as “less is more.” Trial counsel stated that
she generally chooses not to “throw every little thing” at witnesses
because it “dilutes the power” of the strongest impeachment
evidence available to her. Trial counsel testified that, in this case,
she chose to prioritize Miller’s prior felony conviction over the phone
records because she believed evidence of Miller’s criminal history
would be most helpful to Henderson’s defense.
Given what little we know about the phone records, we cannot
say that trial counsel’s decision not to impeach Miller with the phone
records was a patently unreasonable trial strategy. “Counsel’s trial
decisions are presumed to be strategic, and, absent some evidence to
the contrary, an appellant fails to overcome the strong presumption
that trial counsel’s performance fell within the range of reasonable
5 Neither party produced these phone records during Henderson’s trial,
or during the motion for new trial hearing, and they do not appear in the record before this Court. 35 professional conduct and was not deficient.” Smith v. State, 300 Ga.
532, 536 (3) (b) (796 SE2d 671) (2017); see also Romer v. State, 293
Ga. 339, 344-345 (3) (a) (745 SE2d 637) (2013) (holding that, in light
of other methods of impeaching State’s witness used by trial counsel,
failure to impeach on other specific grounds was a matter of trial
strategy that did not constitute deficient performance). This claim
of ineffective assistance fails.
Judgment affirmed. All the Justices concur, except Warren, J., not participating.
Decided October 19, 2020.
Murder. Gwinnett Superior Court. Before Judge Beyers. Lynn M. Kleinrock, for appellant. Daniel J. Porter, District Attorney, Daniel Sanmiguel, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Leslie A. Coots, Assistant Attorney General, for appellee.