319 Ga. 25 FINAL COPY
S24A0014. ISAAC v. THE STATE.
MCMILLIAN, Justice.
Appellant Kenneth Maurice Isaac was convicted of malice
murder, among other crimes, for the shooting death of Reginald
Roberts.1 On appeal, Isaac claims that his trial counsel rendered
ineffective assistance by refusing to allow him to testify in his own
defense and that the trial court erred by declining to instruct the
1 Roberts was shot and killed on the night of April 19, 2014. On August
30, 2016, Isaac was indicted on five counts in relation to the shooting: (1) malice murder; (2) felony murder predicated on aggravated assault; (3) aggravated assault; (4) possession of a firearm during the commission of a felony; and (5) violation of the Street Gang Terrorism and Prevention Act. A jury trial took place October 3-7, and October 11, 2016, and the jury found Isaac guilty of all counts. On October 20, 2016, the trial court sentenced him to life in prison with the possibility of parole for malice murder (Count 1), five years in prison consecutive to Count 1 for the possession offense (Count 4), and ten years consecutive to Count 4 for the street gang offense (Count 5). The felony murder count (Count 2) was vacated by operation of law, and the aggravated assault count (Count 3) merged into malice murder. On October 26, 2016, Isaac filed a motion for new trial, which he amended on September 26, 2022. The trial court held a hearing on that motion on October 4, 2022, and denied it by order dated November 1, 2022. On November 28, 2022, Isaac timely filed a notice of appeal, which he amended on November 29 and again on June 14, 2023. This case was docketed to the term of court beginning in December 2023 and submitted for a decision on the briefs. jury on impeachment of a witness through bias toward a party. For
the reasons that follow, his claims fail, so we affirm.
1. The evidence at trial showed the following. On April 20,
2014, Roberts was found dead, nude from the waist down, in a
wooded area connecting two apartment complexes, Kensington
Manor and Southern Pines.
The previous day, April 19, Roberts and two others stole
vehicles from an airport, including a newer-model, black Ford
Mustang. According to his girlfriend, Keneisha Williams, Roberts
returned home that afternoon, and then left in the evening to
exchange a silver gun in his possession for a black gun. Williams
testified that in the days leading up to that evening, Roberts had
tried to exchange his silver gun by meeting with “someone named
Chad.” Williams did not know who “Chad” was, but recounted from
her conversations with Roberts that “Chad” lived with his aunt, and
that before April 19, Roberts had gone to the aunt’s apartment to
find “Chad” but did not find him there. After Roberts left on the
evening of April 19, Williams did not see him again.
2 That evening, Kenyatte Stephenson, a resident of Kensington
Manor, saw Roberts near her apartment talking with a man for
about 20 minutes and appearing “mad.” In the days prior to April
19, Roberts had called Stephenson a number of times looking for
Isaac. The same evening, Stephenson also saw Isaac, whom she had
known for a year by then, at her apartment. Isaac had a black gun
that evening, and he left between 8:00 and 9:00 p.m. to go to his
aunt’s house in Southern Pines. Stephenson heard two gunshots
that night, though she did not know what time she heard the shots.
The same night, Tiffany Farley, a resident of Southern Pines
who had known Isaac for years, went with Isaac’s girlfriend to a local
bar. According to Farley, at about 11:30 p.m. or midnight, she saw
Isaac at the bar, and he told her: “I got a body, and he is naked from
the waist down in the cut” and “[y]ou will see, just wait until in the
morning.” At trial, Farley described the “cut” as an area that people
traversed to go between Kensington Manor and Southern Pines.
The next day, April 20, Isaac attended a cookout with family
3 and friends, including his cousin Sequoia Isaac2 and her brother
Kenyara Bolton. According to Sequoia, Isaac told her at the cookout
that he had shot Roberts twice in the head. Sequoia also saw Isaac
“near” and “go into” a newer-model black Mustang. Bolton also saw
Isaac standing next to a newer “black or gray” Mustang.
That same day, Quantavious Hurt, a teenager who often
visited Kensington Manor and Southern Pines, discovered Roberts’s
body, buttocks exposed, in the “cut” between the two apartment
complexes, and notified police. Hurt testified that in the days
leading up to the discovery, Roberts had come to the apartments
looking for Isaac and thought Isaac had his gun; Roberts went to
Isaac’s aunt’s home and asked her about the gun. About three or four
days after he found Roberts dead, Hurt also saw Isaac in a “purplish
blackish” Mustang.
After Hurt notified police, law enforcement responded to the
crime scene. Richard Bowen, a forensic death investigator, found a
2 Since Sequoia and Isaac have the same surname, we refer to Sequoia
by only her first name. 4 gunshot wound in Roberts’s neck. Based in part on the undisturbed
dirt near Roberts’s body, Bowen concluded that Roberts was nude
from the waist down when he was shot and that right after getting
shot, he fell where he was later found. Dr. Gerald Thomas Gowitt,
the medical examiner who performed an autopsy on Roberts, also
noted the gunshot wound on the right side of his neck, and concluded
that the bullet path was “right to left, front to back, and slightly
downward” and that whoever had shot Roberts “couldn’t have been
behind him.”
On May 4, 2014, law enforcement found the black Ford
Mustang that Roberts had stolen. None of the latent prints they
found on the car matched Isaac’s fingerprints, but Dr. Torry
Passmore, the expert in fingerprint examination and analysis who
had compared Isaac’s fingerprints with those on the car, testified
that fingerprints on a car could be wiped or washed down. Another
law enforcement officer also indicated that he and those who towed
the car had to have touched it, that the location where he had found
the car was “out in the elements,” and that “it rain[ed] when the car
5 had gotten wet.”
Also that May, law enforcement arrested and interviewed
Isaac. The audio recordings of two interviews were admitted at trial
and played for the jury. In the first interview, conducted on May 24,
Isaac told police that at the time of Roberts’s shooting, he was in
Florida. But in the second interview, conducted on May 29, Isaac
told police that on April 19, he went to the “cut” with Sequoia’s
boyfriend, Kenyatta Frazier,3 and saw Frazier come out directly
behind Roberts and fire at Roberts three times. In that interview,
Isaac stated he had never been in a black Mustang.
Isaac also told police that he was a leader in the Bloods gang
with about 170 members under him and indicated that he could
3 At trial, Isaac’s counsel suggested that Frazier and not Isaac killed
Roberts, by drawing attention to evidence that: (1) Frazier told police that he had been upset with Roberts for stealing and selling his property and that he thought Roberts was becoming a “greedy man”; (2) Roberts, according to his girlfriend Williams, wanted to sell Frazier’s gun since Frazier had sold Roberts’s cars in the past; and (3) Williams told police that Frazier was the one who called Roberts on April 19 shortly before Roberts left home. Isaac’s trial counsel also suggested when cross-examining a detective who had interviewed Frazier, that Frazier and Sequoia’s romantic relationship influenced Sequoia’s statements to police about Isaac.
6 order members to handle those who disrespected him. At trial,
Investigator Wayne Pinckney, an expert in street gang
investigations, testified that gang leaders maintain their leadership
by commanding respect: gangs always respond to a “disrespectful
situation,” and members often talk about their crimes to instill fear
and command an area. Investigator Pinckney testified that those
who violate a gang’s norms can be “discipline[d]” even by murder,
and recalled Isaac speaking to him about being “in charge of” people
who committed violations. Hurt, the teenager who had found
Roberts’s body—and who had spent time with Isaac and had often
visited Kensington Manor and Southern Pines, sites for gang
activity—testified that it was “kind of a violation” for Roberts to
have asked Isaac’s aunt about a gun, because, in Hurt’s words, “you
don’t never actually go to somebody’s house or any person house and
say something about the gun or anything because that kind of could
spook them or scare them[.]”
Having seen situations where criminals ordered victims to
strip at gunpoint to humiliate them, Investigator Pinckney believed
7 that whoever killed Roberts likely sought to humiliate him and send
a message, because Roberts was found naked from the waist down
in a frequently used area and without signs of sexual abuse.
2. Isaac claims his trial counsel provided constitutionally
ineffective assistance by preventing him from testifying. The record
shows that after the State rested, the trial court told Isaac that he
needed to decide whether to testify and took a ten-minute recess to
give Isaac the chance to confer with his trial counsel on whether to
testify. After the recess, counsel announced that she “had the
opportunity to speak with” Isaac, and Isaac himself announced that
he was not going to testify. The defense then presented its case and
rested after calling two witnesses. However, at the motion for new
trial hearing, counsel and Isaac each testified that after the defense
presented its last witness and right before the defense rested, Isaac
told counsel he wanted to testify and she told him “no.” Isaac
indicated that this exchange also occurred in the ten-minute recess
right after the State rested. The trial court, in its order denying
Isaac’s motion for new trial, “decline[d] to credit the testimony of
8 [Isaac] or trial counsel” and stated that “[n]othing in the record
indicates [Isaac] ever expressed any desire to testify.” Yet on appeal,
Isaac maintains that he expressed to counsel a desire to testify and
she told him “no,” and that by doing so, she provided constitutionally
ineffective assistance.
To succeed on his ineffective assistance claim, Isaac must show
that his trial counsel performed deficiently and that the deficiency
prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,
687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To show deficiency,
Isaac must show that counsel “performed [her] duties in an
objectively unreasonable way, considering all the circumstances and
in the light of prevailing professional norms.” Evans v. State, 315
Ga. 607, 611 (2) (b) (884 SE2d 334) (2023). To show prejudice, Isaac
“must establish a reasonable probability that, in the absence of
counsel’s deficient performance, the result of the trial would have
been different.” Rashad v. State, 318 Ga. 199, 208 (3) (897 SE2d 760)
(2024) (citation and punctuation omitted). “If [Isaac] fails to make a
sufficient showing on one part of the Strickland test, we need not
9 address the other part.” Washington v. State, 313 Ga. 771, 773 (3)
(873 SE2d 132) (2022).
Isaac argues that counsel performed deficiently by telling him
“no” after he asked to testify, because by doing so she thwarted the
exercise of his constitutional rights. See Thomas v. State, 314 Ga.
681, 690 (2) (878 SE2d 493) (2022) (“If a defendant decides to testify,
counsel must accept that decision and call him to the stand.”);
Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995) (“[A]
criminal defendant has a constitutional right, based on Fifth and
Sixth Amendment guarantees and due process considerations, to
testify in his . . . own defense.”). Isaac argues that we should
presume counsel’s refusal to let him testify prejudiced him because
that refusal amounted to a “constructive denial of counsel,” see
Turpin v. Curtis, 278 Ga. 698, 699 (1) (606 SE2d 244) (2004), and
that even if we do not presume prejudice, Isaac has met his burden
of showing prejudice under Strickland. The State, in turn, suggests
that the trial court, in its order denying Isaac’s motion for new trial,
implicitly made a finding that Isaac never even expressed a desire
10 to testify, so we should accept this finding by the trial court unless
it is clearly erroneous. See Wright v. State, 291 Ga. 869, 870 (2) (734
SE2d 876) (2012).
Assuming that Isaac asked counsel to testify and counsel told
him “no,”4 and that counsel performed deficiently by doing so, we
conclude that Isaac failed to show that his counsel provided
constitutionally ineffective assistance.
(a) Isaac first argues that rather than require him to show
prejudice under Strickland, we should presume prejudice because
this case falls into the “constructive denial of counsel” exception to
Strickland that we described in Turpin, 278 Ga. at 699 (1)
(identifying “constructive denial of counsel” as one of the “narrow
range of circumstances” where we “apply a presumption” of
prejudice “[i]n evaluating the prejudice component of a claim of
ineffective assistance”). This exception, we have held, applies “only
when there [is] a breakdown in the adversarial process, such that
4 Since we resolve Isaac’s ineffective assistance claim on prejudice, we
need not decide whether the trial court made a factual finding that Isaac never expressed a desire to testify or whether such a finding is clearly erroneous. 11 counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Wainwright v. State, 305 Ga. 63, 68 (3) (823
SE2d 749) (2019).5 And, we have held, for this exception to apply,
counsel’s failure must be “complete” and “occur throughout the
5 Two cases decided by the United States Supreme Court form the legal
background of the “constructive denial of counsel” exception to Strickland’s requirements. The first case is Strickland itself, which discussed “constructive denial of counsel” as an exception to its requirement that a defendant show prejudice to succeed on an ineffective assistance claim. As the Strickland Court explained, “[i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. . . . Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.” 466 U.S. at 692 (III) (B). The second case is United States v. Cronic, where the Court similarly discussed, in the context of the Sixth Amendment right to assistance of counsel, “circumstances . . . so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” See 466 U.S. 648, 658 (III) (104 SCt 2039, 80 LE2d 657) (1984). Those circumstances, the Court explained, include when there is a “complete denial of counsel” (e.g., counsel is “totally absent”), or, when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” See id. at 658-59 (III) & n. 25. Reading Strickland and Cronic together, we have held that “Cronic’s ‘constructive denial of counsel’ exception to the general Strickland standard is a narrow one that 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.” Wainwright, 305 Ga. at 68 (3) (citation and punctuation omitted); Turpin, 278 Ga. at 699 (1); State v. Heath, 277 Ga. 337, 338-39 (588 SE2d 738) (2003). In addition, we have held, “the Cronic [constructive denial of counsel] exception requires an attorney’s failure to be complete and [ ] occur throughout the proceeding and not merely at specific points.” Wainwright, 305 Ga. at 68 (3) (citation and punctuation omitted). See Tepanca v. State, 297 Ga. 47, 50-51 (6) (771 SE2d 879) (2015); Turpin, 278 Ga. at 699 (1).
12 proceeding and not merely at specific points.” Id. (citation and
punctuation omitted); Turpin, 278 Ga. at 699 (1). Isaac argues that
by preventing him from testifying, counsel failed to subject the
State’s case to “meaningful adversarial testing,” Wainwright, 305
Ga. at 68 (3) (citation and punctuation omitted), because the State
relied primarily on Sequoia’s and Farley’s testimony that Isaac had
confided in them about the murder, and had he testified, he would
have rebutted their testimony.
But as we stated in Turpin—which Isaac cites and does not ask
us to overrule—“Georgia appellate courts have consistently required
that, where a defendant alleges that counsel rendered ineffective
assistance by preventing him from testifying, he must show that this
action actually prejudiced his defense.” 278 Ga. at 700 (1) (emphasis
added; citing cases from this Court and federal courts to support this
proposition and stating “Georgia law in this regard is consistent
with the overwhelming weight of federal and state authority”). Isaac
does not point us to any authority, nor have we found any, in which
counsel’s failure to allow a defendant to testify amounts by itself to
13 the kind of constructive denial of counsel described in Turpin.6 Thus,
we do not presume prejudice based on the constructive-denial-of-
prejudice exception to Strickland but instead assess whether Isaac
showed prejudice under Strickland. See Turpin, 278 Ga. at 700 (1),
701 (2) (after declining to presume prejudice, assessing whether
defendant showed prejudice under Strickland).
(b) We conclude that Isaac failed to show Strickland prejudice.
To begin, Isaac was never asked at the motion for new trial hearing
what he would have specifically testified had he gotten on the stand.
See Bell v. State, 287 Ga. 670, 675 (3) (697 SE2d 793) (2010)
(defendant did not show prejudice from trial counsel’s failure to call
two witnesses who allegedly could have offered exculpatory
6 In any event, Isaac fails to show that by denying his requests to testify,
counsel “entirely” failed to subject the State’s case to meaningful adversarial testing and that the failure was “not merely at specific points.” See Wainwright, 305 Ga. at 68 (3) (citation and punctuation omitted). Even without calling Isaac to testify, counsel, throughout the trial, cross-examined the State’s witnesses, including Sequoia and Farley; direct-examined defense witnesses; and objected a multitude of times. See Burrell v. State, 301 Ga. 21, 23 (2) (799 SE2d 181) (2017) (appellant’s allegations that counsel was ineffective at “specific points of his trial” such as by failing to object at several moments, did not meet Cronic’s “stringent standard” for presumptive prejudice). 14 evidence, in part because defendant “offered only speculation as to
the possible testimony of one of the witnesses, and did not offer even
speculation about the possible testimony of the other witness”).
However, Isaac was asked questions about the shooting, and he
denied shooting Roberts, telling Farley that “I got a body,” or telling
Sequoia that he had shot someone. Isaac also testified that Frazier
and Roberts had “beef” with each other, and suggested that Sequoia
lacked credibility because Frazier was the father of her children.
Even if we assume that Isaac would have testified at trial along
the lines that he testified at the motion for new trial hearing, there
is not a “reasonable probability” that “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694 (III) (B). See
id. (“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”).
First, the evidence of Isaac’s guilt is strong. Sequoia testified
that Isaac told her he had shot Roberts twice in the head. Farley
recounted that Isaac had told her the night of Roberts’s shooting, “I
got a body, and he is naked from the waist down in the cut.” Roberts
15 stole a black Mustang shortly before his death, and after his death,
at least three people including a defense witness spotted Isaac near
or “go into” a black or dark-colored Mustang, while Isaac told police
he had never been in a black Mustang. In addition, Isaac told
conflicting stories after his arrest. In his first interview, Isaac told
police that he was in Florida at the time of Roberts’s shooting; this
contradicted not only his second interview but also Farley and
Stephenson’s recollection of seeing Isaac on the night of April 19.
Also, Isaac’s account of seeing Frazier shoot Roberts from behind
contradicted expert testimony that the shooter could not have shot
Roberts from behind. And, no witness testified at trial to seeing
Frazier near the crime scene on the night of April 19.
Second, even if Isaac testified at trial, as he did at the motion
for new trial hearing, about Frazier’s relationship with Sequoia and
alleged “beef” with Roberts, such testimony would have been
cumulative of other testimony and evidence presented at trial that
could support the defense’s theory that Frazier committed the
murder, including: defense trial counsel’s cross-examination of a
16 detective about Sequoia’s potential bias in favor of Frazier;
Williams’s testimony on Frazier and Roberts’s issues, including that
Frazier had sold Roberts’s cars in the past and that Roberts wanted
to sell Frazier’s gun to “get even”; and Isaac’s second interview,
played before the jury, which included his account of Frazier
shooting Roberts.
Given the strong evidence of Isaac’s guilt and the cumulative
nature of his potential trial testimony, there is not a “reasonable
probability” that had Isaac testified along the lines that he testified
at the motion for new trial hearing, “the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694 (III) (B). See
Hood v. State, 308 Ga. 784, 788-89 (2) (843 SE2d 555) (2020)
(concluding there was no prejudice, because “given the strong
evidence of [defendant’s] guilt, it is not reasonably probable that the
outcome of the trial would have been different even if [an uncalled
witness] had testified at trial”); Mitchell v. State, 308 Ga. 1, 7 (2) (b)
(838 SE2d 820) (2020) (no prejudice from counsel’s failure to
introduce evidence, in part because evidence of defendant’s guilt was
17 already “very strong”); Ivey v. State, 305 Ga. 156, 162-63 (2) (d) (824
SE2d 242) (2019) (defense counsel’s failure to present victim’s
toxicology report did not prejudice defendant in part because report
“would have been cumulative of other evidence introduced at trial”
and so defendant failed to show how admitting the report “would
have changed the result of the trial”).
3. Isaac also argues that the trial court erred by declining to
instruct the jury on impeachment of a witness through bias toward
a party. At the charge conference and again after the court charged
the jury, defense trial counsel objected to the trial court not giving
the jury a pattern charge on impeachment of a witness through bias
toward a party.7 The court declined to give the requested charge, but
7 Specifically, Isaac argues that the trial court should have charged the
jury the following: “1.31.40 Witness, Attacked (old Impeached) [ ] In determining the credibility of witnesses and any testimony by them in court, you may consider, where applicable, evidence offered to [(attack) (cast doubt upon) (challenge) the credibility [or] believability of] [cause you to disbelieve] any such witness. This would include evidence of: Bias toward a part[y]. Shown by ‘Bad Acts’ (extrinsic evidence or cross-examination)—Specific instances of conduct of the witness (in question) that may relate to the witness’s (in question’s) bias toward a party. O.C.G.A. § 24-6-608 (b).”
18 provided the pattern jury charge on the credibility of witnesses.8
Isaac argues that the court erred in doing so, contending that there
was slight evidence supporting the requested charge on bias. See
Morris v. State, 301 Ga. 702, 705 (2) (804 SE2d 42) (2017) (“To
authorize a requested jury instruction, there need only be slight
evidence supporting the theory of the charge.” (citation and
punctuation omitted)).
Pretermitting whether there was slight evidence supporting
the charge on bias, we conclude that the trial court did not err in
declining to give that charge. For the court to have erred in doing so,
the charge declined must not have been “substantially covered by
See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.31.40 (4th ed., updated January 2024). 8 The record shows that the trial court charged the jury on credibility of
witnesses, as follows: “Credibility of Witnesses[:] The jury must determine the credibility of the witnesses. In deciding this, you may consider all of the facts and circumstances of the case, including the witnesses’ manner of testifying, their means and opportunity of knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, their interest or lack of interest in the outcome of the case, and their personal credibility as you observe it.” See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.31.10 (4th ed., updated January 2024). 19 the charge actually given.” Taylor v. State, 272 Ga. 744, 745 (1) (534
SE2d 67) (2000) (citation and punctuation omitted). Here, the trial
court’s charge on the credibility of witnesses already asked jurors to
consider a witness’s “interest or lack of interest in the outcome of the
case,” and thus substantially covered the declined charge on
impeachment of a witness through bias toward a party. See Foster
v. State, 294 Ga. 383, 386 (7) (754 SE2d 33) (2014) (‘“[T]he trial court
thoroughly instructed the jury that it was the arbiter of each
witness’s credibility and that it should give consideration to each
witness’s interest or lack thereof in the outcome of the case. This
charge adequately covered the possible motive, interest, or bias of
the State’s witnesses.”’ (emphasis added; citing Lee v. State, 281 Ga.
776, 777-78 (3) (642 SE2d 835) (2007))).
4. Finally, presuming only one deficiency and finding no other
error by defense trial counsel or by the trial court, we conclude that
to the extent Isaac argues there was cumulative prejudice entitling
him to a new trial, that argument fails. See Jackson v. State, 317
Ga. 95, 106-07 (4) (891 SE2d 866) (2023) (assessing both claims of
20 counsel deficiency and trial court error, and holding that “[t]o
establish cumulative error, [an appellant] must show that . . . at
least two errors were committed in the course of the trial”); Woods
v. State, 312 Ga. 405, 410 (3) (a) n.7 (862 SE2d 526) (2021); State v.
Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020).
Judgment affirmed. All the Justices concur.
Decided May 14, 2024.
Murder. DeKalb Superior Court. Before Judge Asha Jackson.
Jerry W. Chappell II, for appellant.
Sherry Boston, District Attorney, Thomas L. Williams, Deborah
D. Wellborn, Harry S. Ruth, Assistant District Attorneys;
Christopher M. Carr, Attorney General, Beth A. Burton, Deputy
Attorney General, Clint C. Malcolm, Meghan H. Hill, Senior
Assistant Attorneys General, Stephany J. Luttrell, Elizabeth H.
Brock, Assistant Attorneys General, for appellee.