317 Ga. 880 FINAL COPY
S23A1097. LEE v. THE STATE.
MCMILLIAN, Justice.
After committing a series of crimes from December 15, 2011,
through January 19, 2012, Appellant Edward Lee was convicted of
malice murder related to the shooting death of Charlie Artis, as well
as multiple other crimes against other victims.1 On appeal, Lee
1 On January 20, 2015, a Muscogee County grand jury indicted Lee, along with Danteviouse Doleman and Demetrice Scott, on a 21-count indictment. The indictment charged Lee with malice murder (Count 10), two counts of felony murder (Counts 11 and 13), two counts of armed robbery of Julane Fleming and Artis (Counts 3 and 12), three counts of possession of a firearm during the commission of a felony (Counts 4, 7, and 15), criminal attempt to commit armed robbery of Surendrakumar Patel (Count 5), three counts of aggravated assault of Patel, Artis, and R. L. (Counts 6, 14, and 18), two counts of burglary (Counts 16 and 17), and theft by taking (Count 21). Scott was charged individually with raping R. L. Scott pleaded guilty, and a jury found Lee and Doleman guilty of all the charges against them following a joint trial from May 9 through 24, 2016. The trial court sentenced Lee to life in prison without parole for malice murder, a consecutive life sentence for one of the armed robbery counts, consecutive sentences of five years to serve for each of the firearm counts, and multiple concurrent sentences of various terms for the remaining convictions, with the felony murder counts being vacated by operation of law, and the aggravated assault count pertaining to Artis being merged for sentencing purposes. Lee filed a timely motion for new trial on May 25, 2016, which was amended by new counsel on October 14, 2020. Following a hearing on October argues that the trial court abused its discretion in denying his
motions for a mistrial on the grounds that (1) his co-indictee
Demetrice Scott, who testified at trial for the State as part of his
plea agreement, made reference during his testimony to Lee’s prior
incarceration, and (2) the State violated Brady v. Maryland, 373
U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963), by failing to disclose
evidence from Lee regarding a fourth man who rode with the co-
indictees to the barbershop where Artis was murdered. Lee also
argues that his trial counsel rendered ineffective assistance by
failing to object during the State’s closing argument on the grounds
that the prosecutor commented on the veracity of witnesses and
argued facts not in evidence. For the reasons that follow, we affirm.
Viewed in the light most favorable to the jury’s verdict, the
evidence at trial showed that Lee, Doleman, and Scott participated
in a crime spree from December 15, 2011, through January 19, 2012.
13, 2021, the trial court denied Lee’s motion for new trial, as amended, on April 4, 2022. Lee filed a timely notice of appeal on April 6, 2022, and the case was docketed to the August 2023 term of this Court and submitted for a decision on the briefs. 2 On December 15, 2011, they robbed Julane Fleming at gunpoint and
stole her Lexus. On December 20, 2011, they attempted to rob
Surendrakumar Patel at the Hometown Grocery Store, where Lee
shot at Patel twice. On January 5, 2012, they rode together to a
barbershop where Lee robbed Artis before shooting and killing him.
On January 11, 2012, they burglarized Felicia Scott’s home. On
January 15, 2012, they burglarized the residence of R. L., and Lee
stole R. L.’s car. On January 19, 2012, they stole an Xbox, a
controller, and games from the home of Joshua Myers.
According to Scott, the co-indictees’ crime spree began when
they drove together to an apartment complex where they saw a
woman getting in her Lexus. Lee ran up to the woman with his gun
drawn, and when she jumped out of her car and fled, Lee took her
car and drove away while Doleman and Scott rode away separately.
The woman, Fleming, testified at trial that as she started to back
her car out of its parking space, a man appeared, pointed a gun at
her, and told her to get out, which she did.
Scott’s cousin, Karen Gibson, had a relationship with both Lee
3 and Doleman, and the three men began living at her home in late
2011. Gibson testified at trial that one evening, she heard Lee,
Doleman, and Scott talking about robbing the Hometown Grocery
Store. Scott testified that the three men rode together to the grocery
store, where he and Lee lay in wait for the owner to come out with a
money pouch after closing the store. According to Scott, when Patel
exited the store and began to get into his vehicle, Lee and Scott
approached him as Lee pointed a .32-caliber revolver at Patel, but
Patel got in his vehicle anyway and drove away as Lee fired shots at
him. Patel testified that after he closed the store that night and was
getting into his vehicle, a man approached him and started shooting
at him as he drove away.
Scott testified that he knew Artis, had been to his barbershop
a few times, and knew Artis kept a lot of cash on his person. Scott
told Lee and Doleman about Artis and the cash he kept, and they
decided to rob him. Scott testified that the plan was for Lee to rob
Artis, that Lee had a .38-caliber revolver that day, that Scott drove
them in a green car, and that on the way, they picked up a fourth
4 man named Chris, who was a friend of Lee and Doleman. Scott
dropped off Lee near the barbershop, and Chris also got out of the
car. According to Scott, Lee was wearing a blue fleece jacket at the
time. Scott and Doleman parked in a nearby apartment complex,
and afterward, Lee came running back to the car breathing hard,
got in, and told them to go. Chris also got back in the car.
Unbeknownst to the others, Artis had been shot during the robbery.
When Scott asked Lee what he got from robbing Artis, Lee said that
he had not gotten anything. Scott testified that he only found out
later that Artis was killed and that Lee was “telling folks” that Lee
had killed Artis, but Lee would get mad at Scott whenever Scott
asked about it.
A number of witnesses in the area of the shooting testified to
the surrounding circumstances. Denise West testified that on the
day of Artis’s murder, she went to a salon that was near Artis’s
barbershop. As she drove up, she saw Artis standing in front of the
barbershop talking to a man wearing a blue jacket. After she walked
into the salon, she heard what sounded like a gunshot and then saw
5 Artis lying on the ground outside as the man wearing the blue jacket
ran away. Brandon Holland testified that he was behind the
barbershop smoking marijuana when he heard a gunshot and then
saw a man wearing a blue hoodie running away. Undrea Jones, who
was doing maintenance work at the nearby apartment complex,
testified that on his way back to work after lunch, he drove through
the plaza where the barbershop was located and saw a green car
with four men in it “creeping” along by the barbershop and looking
toward it. When Jones got back to the apartment complex where he
was working, he saw the same men drive onto the property where
one of them, who was wearing a blue jacket, got out and cut through
a pathway that led back to the plaza where the barbershop was
located. Darien Floyd, who was a regular customer at Artis’s
barbershop, testified that he went there to get a haircut that day
and when he arrived, the only people he saw in the parking lot were
Artis and a man wearing a blue hoodie. Floyd then entered the
barbershop to get a haircut from one of Artis’s employees, and
although he never heard a gunshot, he noticed police arrive and he
6 then came outside and saw Artis on the ground lying in a pool of
blood. Floyd later identified Lee from a photo lineup as resembling
the man he saw in the blue hoodie. Darrell Dague, who lived in the
nearby apartment complex, testified that he heard what sounded
like gunshots coming from the plaza and then heard something
crashing through the woods before he saw a man wearing a blue
hoodie running out of the woods. Dague asked the man if he needed
help, and the man responded that someone had been shot. And
although Dague failed to identify Lee from the first photo lineup he
was shown after the incident, later during the investigation, he
identified Lee from another photo lineup as the man he saw in the
blue hoodie, stating that he was “100 percent sure” about it. Antonio
Jamerson, who was a roadside assistance technician, was also at the
nearby apartment complex trying to jump-start a woman’s car when
he heard a voice say that someone had been shot and then saw a
young man in a blue jacket running away. Jamerson later identified
Lee from a photo lineup as resembling the man he saw wearing blue
that day. After Artis was killed, no cash was discovered on his
7 person. An autopsy determined that Artis died from a single gunshot
to the chest.
Scott testified that on a later occasion, he, Lee, and Doleman
entered Felicia Scott’s house through an open window and stole
multiple items. Felicia testified that when she got home that day,
she found her house ransacked, with multiple items missing.
Scott also testified that on the night of January 15, 2012, he
and Lee were armed with .32- and .38-caliber guns, and he entered
R. L.’s residence through the window, held her at gunpoint, and then
let Lee and Doleman in through the door. After Lee and Doleman
stole R. L.’s car keys, the three left. R. L. testified that she was home
in her bathrobe when she heard something in the kitchen, and when
she opened the kitchen door, she saw a man who pulled a gun on
her. He forced her back into her bedroom and onto the floor at
gunpoint. She could hear the man open her back door and then
heard the voices of at least two other people. The first man then held
her at gunpoint while she listened as the other men plundered her
home. Gibson testified that she later heard the co-indictees talking
8 and joking about their robbery of R. L.
Joshua Myers testified that on January 19, 2012, after he had
a disagreement with Lee, Doleman, and Scott about payment for
some tattoo work he had begun for them, they stole an Xbox, along
with a controller and games, from his home. Myers called the police
to report the theft and told officers where they could find the three
men. When officers arrived at the residence where the three men
lived, officers stationed themselves at the front and back doors, and
when they knocked and announced their presence, they saw several
men trying to run out of the back door and windows before going
back inside when officers yelled at them to stop. Officers continued
to knock, and Gibson opened the door and said that no one else was
inside. While officers spoke to Gibson, Scott appeared and said he
was the only other person in the residence. Scott denied having an
Xbox and offered to show them his bedroom, where they saw an Xbox
controller under the bed. They took Scott into custody, and Gibson
then signed a consent form for a search of the residence. Officers
searched the home and found Lee and Doleman hiding in a different
9 bedroom; officers took them into custody as well. Officers also found
the Xbox, a .38-caliber revolver with all the rounds inside fired, and
a loaded magazine for a .32-caliber gun, and the police investigation
revealed evidence that all three men participated in the crime spree
that led up to their arrests. Although a firearms examiner testified
that her comparison of the .38-caliber bullet that was recovered from
Artis’s body with the .38-caliber revolver recovered from the co-
indictees’ residence was inconclusive, she could not eliminate the
.38-caliber revolver recovered from the co-indictees’ residence as the
gun that fired that bullet.
1. Lee contends that the trial court abused its discretion in
denying his motions for a mistrial on the grounds (a) that Scott said
during trial that he was incarcerated with Lee, and (b) that the State
violated Brady by presenting evidence at trial, through Scott’s
testimony, of a fourth person named Chris who was present with the
co-indictees at the time of Artis’s murder. But because Lee did not
move for a mistrial on either ground contemporaneously with the
presentation of the testimony at issue, these issues are waived for
10 the purposes of appeal.
(a) With regard to the mention of Lee’s prior incarceration,
the record shows that Lee moved before trial to prevent any mention
by prosecutors of his criminal history, and the State responded that
it did not plan to bring up that Lee was a convicted felon unless he
elected to testify. During Scott’s direct examination, which took
place on a Friday, when the prosecutor asked if he knew Lee, Scott
responded that he knew Lee from being incarcerated with him in
2011. Despite what appeared to be—and what Lee’s counsel agreed
was—the prosecutor’s attempts to steer Scott away from the subject,
Scott mentioned twice more being previously incarcerated with Lee
before Lee’s counsel requested a bench conference and complained
about those references. The court had Scott briefly escorted out of
the courtroom so that the attorneys could instruct him outside the
presence of the jury to avoid further reference to Lee’s prior
incarceration. Scott then returned to the courtroom, his direct
examination was completed, and court was adjourned for the
weekend. Lee did not move for a mistrial at that time.
11 When court reconvened on Monday morning, Lee moved for a
mistrial based on Scott’s references to Lee’s prior incarceration.
After hearing argument, the court took the matter under
advisement and reserved ruling until the conclusion of the rest of
Scott’s testimony that afternoon. The next morning of the trial, the
court denied the motion for a mistrial.
It is well established that a motion for a mistrial “must be
promptly made as soon as the party is aware of the matter giving
rise to the motion,” so “[i]f the defendant did not make a
contemporaneous motion for a mistrial at the time the defendant
became aware of the matter giving rise to the motion, then the
defendant has waived review of this issue on appeal.” Neloms v.
State, 313 Ga. 781, 785 (2) (873 SE2d 125) (2022) (citation and
punctuation omitted). Because Lee did not move for a mistrial based
on Scott mentioning Lee’s prior incarceration contemporaneously
with the presentation of that evidence, but instead waited until the
following day of trial—after Scott’s direct examination concluded
and the Court recessed for the weekend—this issue was waived for
12 the purposes of appeal. See, e.g., Goins v. State, 310 Ga. 199, 206 (5)
(850 SE2d 68) (2020) (holding that mistrial issue was not preserved
for appellate review because defendant did not move for mistrial
based on mention of defendant’s prior incarceration until the jury
was released for a lunch break following further testimony);
Kilpatrick v. State, 308 Ga. 194, 199-200 (5) (839 SE2d 551) (2020)
(holding that mistrial issue was not preserved for appellate review
because defendant did not move for mistrial based on improper
character evidence “until after the transcript of the specific phone
call [at issue] had been admitted at trial, and after the investigator
testified about how the call fit into the overall timing of events”)
(emphasis in original).
(b) In regard to the alleged Brady issue, on the same Friday
that Scott mentioned Lee’s prior incarceration, Scott also testified
on direct examination that he, Lee, and Doleman picked up a man
named Chris, who was a friend of Lee and Doleman, while they were
on their way to the barbershop where Lee shot and killed Artis. At
that point, Doleman’s counsel requested a bench conference and
13 asked when the prosecutor had learned about Chris. The prosecutor
responded that he knew there was a fourth person but that he had
just learned the name Chris, and the trial court added that there
had already been other testimony from another witness that four
people were in the car. Lee did not move for a mistrial at that time.
After a bit more discussion, the court said “let’s get the direct
testimony in. Then we’ll discuss this when we let the jury go,” at
which point the bench conference concluded and the direct
examination of Scott continued. After the conclusion of Scott’s direct
examination, the court sent the jury out and discussed the issue
further with counsel. The prosecutor maintained that he had only
learned the name “Chris” that day and that he knew nothing else
about Chris’s identity. Scott, who remained in the courtroom, also
said that he knew nothing else about who Chris was or where he
could be found. Scott also said “I did not tell him [the prosecutor]
about the fourth person until today.” Lee still did not make a
mistrial motion at that time. After these discussions, the court
advised that it would send the jury home for the weekend and not
14 have them return until Monday afternoon so that defense counsel
had time to speak with Scott and “avail [themselves] of every
opportunity to explore this area further.”
When court reconvened on Monday morning, Lee moved for a
mistrial also on the ground that the State had engaged in
prosecutorial misconduct by failing to disclose evidence favorable to
the defendants—namely, information pertaining to Scott’s
testimony that a man named Chris rode with the co-indictees to the
barbershop on the day of Artis’s murder. The trial court denied the
motion for mistrial on that ground at the same time that it denied
the motion based on mention of Lee’s prior incarceration.
This mistrial issue was also waived for the purposes of appeal
because Lee did not move for a mistrial based on Scott’s testimony
about Chris’s presence with the co-indictees at the time of Artis’s
murder contemporaneously with the presentation of that evidence.
Lee did not move for a mistrial on that ground when Scott testified
about Chris during his direct examination, nor did Lee move for a
mistrial on that ground at the conclusion of Scott’s direct
15 examination when the matter was discussed further. Instead, Lee
waited until after the court adjourned for the day, only moving for a
mistrial the following day of trial. See, e.g., Neloms, 313 Ga. at 785
(2) (holding that mistrial issue was not preserved for appellate
review because despite making a timely objection, defendant “did
not move for a mistrial at the time of the prosecutor’s alleged
misconduct”); Keller v. State, 308 Ga. 492, 501-02 (4) (842 SE2d 22)
(2020) (holding that mistrial issue was not preserved for appellate
review because despite making an objection that a copy of the
warrant was never provided to him, defendant “waited to move for
a mistrial until well into the next day’s proceedings”). Accordingly,
both enumerations of error concerning the mistrial issues have been
waived for appellate review.
2. Lee also contends that his trial counsel rendered
ineffective assistance by failing to object during the State’s closing
argument on the grounds that the prosecutor commented on the
veracity of witnesses and argued facts not in evidence. We are not
persuaded.
16 To succeed on a claim of ineffective assistance of counsel, Lee
must show both that his counsel’s performance was deficient and
that such deficiency prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To satisfy the deficiency prong, Lee must demonstrate that
his counsel “performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” Bacon v. State, 316 Ga. 234, 239 (3) (887 SE2d
263) (2023) (citation and punctuation omitted). In doing so, Lee must
overcome “[a] strong presumption . . . that trial counsel’s
performance was reasonable and that counsel’s decisions and
choices at trial fell within the broad range of professional conduct as
assessed from counsel’s perspective at the time of trial and under
the specific circumstances of the case.” Id. (citation and punctuation
omitted). To establish prejudice, Lee “must prove that there is a
reasonable probability that, but for his trial counsel’s deficiency, the
result of the trial would have been different.” Bates v. State, 313 Ga.
57, 62 (2) (867 SE2d 140) (2022). And if Lee fails to make a sufficient
17 showing on either the deficiency or the prejudice prong, we need not
address the other prong. See Washington v. State, 313 Ga. 771, 773
(3) (873 SE2d 132) (2022).
Lee contends that by arguing during closing that neither Floyd
nor Dague had any reason to lie or to identify the wrong person as
the man they saw near the barbershop at the time of Artis’s murder,
the prosecutor was arguing that they must have been telling the
truth, which Lee contends was improper commentary on the
veracity of witnesses. Lee also takes issue with the prosecutor’s
statements during closing that “it’s quite possible that this Chris, if
he exists, was also the one who provided the green car, the smoke
car, if you will,” and that perhaps Scott could not testify about any
money that came from the robbery of Artis “because Edward Lee
wanted to keep it for himself. And it’s possible that after they got
back to their house, he split it up with Danteviouse Doleman”—
statements that Lee contends were unsupported speculation and
therefore improper argument concerning facts not in evidence. Lee
argues that his trial counsel should have objected to all of these
18 statements, and Lee points out that at the hearing on his motion for
new trial, his trial counsel testified that she thought she should have
objected and she offered no explanation for why she did not.
But “[a] closing argument is to be judged in the context in
which it is made,” Styles v. State, 308 Ga. 624, 629 (3) (842 SE2d
869) (2020) (citation and punctuation omitted), and “[a] prosecutor
is granted wide latitude in the conduct of closing argument and
within the scope of such latitude is the prosecutor’s ability to argue
reasonable inferences from the evidence, including any that address
the credibility of witnesses,” Jackson v. State, 301 Ga. 774, 775 (3)
(804 SE2d 73) (2017) (citation and punctuation omitted). Moreover,
“[w]hether to object to a particular part of a prosecutor’s closing
argument is a tactical decision, and counsel’s decision not to make
an objection must be patently unreasonable to rise to the level of
deficient performance.” Cochran v. State, 305 Ga. 827, 833 (2) (d)
(828 SE2d 338) (2019).
By urging the jury to believe Floyd’s and Dague’s identification
of Lee because they had no reason to lie or identify the wrong person,
19 the prosecutor’s statements were “permissible since they were the
conclusion the prosecutor wished the jury to draw from the evidence
and not [ ] statement[s] of the prosecutor’s personal belief as to the
veracity of [the] witness[es].” Jackson, 301 Ga. at 775-76 (3) (“While
it is improper for counsel to state to the jury counsel’s personal belief
as to the veracity of a witness[,] it is not improper for counsel to urge
the jury to draw such a conclusion from the evidence.” (citation and
punctuation omitted)). Likewise, the prosecutor’s other comments
about the possibility that Chris may have provided the car used
during the murder of Artis or that Lee may have withheld the
proceeds of that robbery from Scott were also reasonable inferences
based on the evidence presented, especially considering the context
and surrounding comments within which they were made. For
example, when he argued that Chris may have provided the car, the
prosecutor immediately noted, “You heard testimony that people
exchange cars for use in exchange for marijuana or crack,” and when
he argued that Lee may have withheld the robbery proceeds from
Scott, the prosecutor immediately noted, “Remember the evidence
20 that these two guys [Lee and Doleman] grew up in East Highland
together and these two guys are best friends. . . . And remember
Demetrice Scott is the outsider”—both of which referenced evidence
presented at trial from which the complained-of statements
reasonably could be inferred given the prosecutor’s wide latitude to
draw such inferences during closing argument. See, e.g., Blocker v.
State, 316 Ga. 568, 580 (4) (a) (889 SE2d 824) (2023); Ridley v. State,
315 Ga. 452, 458-59 (4) (b) (883 SE2d 357) (2023); Calhoun v. State,
308 Ga. 146, 151-52 (2) (b) (839 SE2d 612) (2020). Moreover, trial
counsel’s testimony that she thought she should have objected “is of
no consequence to our assessment” because “hindsight has no place
in an assessment of the performance of trial counsel,” as the proper
assessment is “an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.”
Hartsfield v. State, 294 Ga. 883, 888 (3) (b) (757 SE2d 90) (2014)
(citations and punctuation omitted).
Because all of the prosecutor’s comments about which Lee
complains were within the wide latitude afforded the State during
21 closing argument, any objection would have been meritless, and “the
failure to make a meritless objection is not deficient performance.”
Smith v. State, 315 Ga. 357, 367 (5) (b) (882 SE2d 289) (2022).
Accordingly, this enumeration of error also fails.
Judgment affirmed. All the Justices concur.
Decided December 19, 2023.
Murder. Muscogee Superior Court. Before Judge Smith.
Stanley W. Schoolcraft III, for appellant.
Stacey S. Jackson, District Attorney, Cynthia D. McDonald,
Tina G. Stanford, Frederick Lewis, Assistant District Attorneys;
Christopher M. Carr, Attorney General, Beth A. Burton, Deputy
Attorney General, Clint C. Malcolm, Meghan H. Hill, Senior
Assistant Attorneys General, Matthew B. Crowder, Assistant
Attorney General, for appellee.