Lee v. State

897 S.E.2d 856, 318 Ga. 412

• Court: Supreme Court of Georgia
• Decided: February 6, 2024
• Docket: S23A1034
• Status: Published

Opinion

318 Ga. 412 FINAL COPY

S23A1034. LEE v. THE STATE.

PINSON, Justice.

Appellant David Wallace Lee was convicted of malice murder

for the shooting deaths of Meghan Bowen and James Harden.1 On

appeal, Lee contends that (1) the evidence was insufficient to sustain

his convictions as a matter of constitutional due process and under

OCGA § 24-14-6; (2) the trial court erred by failing to grant a new

trial on the general grounds; (3) the trial court abused its discretion

by admitting certain testimony about Lee’s possession of a gun sim-

ilar to the murder weapon; (4) the trial court erred by failing to

1 The crimes occurred on November 18-19, 2015. On January 25, 2016, a

Coffee County grand jury indicted Lee for two counts of malice murder (Counts 1, 2), two counts of felony murder (Counts 3, 4), and violations of the Georgia Controlled Substances Act (Counts 5, 6). Lee was tried by a jury from October 16 to 19, 2017. The jury found Lee guilty of Counts 1-4. Counts 5 and 6 were nolle prossed. Lee was sentenced to consecutive sentences of life in prison with- out the possibility of parole for Counts 1 and 2. Counts 3 and 4 were vacated by operation of law. Lee filed a timely motion for new trial and amended that motion through new counsel several times. Following a hearing, the trial court denied Lee’s motion on March 10, 2023. Lee filed a timely notice of appeal. The case was docketed to the August 2023 term of this Court and submitted for a decision on the briefs. disqualify an assistant district attorney; and (5) his trial counsel

provided ineffective assistance by: (a) failing to review evidence of

allegedly exculpatory cell phone data; (b) failing to review evidence

related to Chris Bowen (“Chris”), Bowen’s ex-husband; (c) failing to

review discovery evidence and cross-examine certain witnesses

about an earlier incident when Lee allegedly shot a man named Joey

Taylor in the ankle; (d) failing to effectively cross-examine the

State’s witnesses about the lack of physical evidence and the time-

line of the night of the murders; (e) failing to object to the admission

of certain text messages based on testimony from a non-expert GBI

agent; (f) failing to renew his motion for change of venue; and (g)

failing to provide Lee with all the discovery before trial.

Each claim fails. The evidence was sufficient to support Lee’s

convictions, and the trial court applied the correct standard in deny-

ing Lee’s motion for new trial on the general grounds. And the trial

court did not abuse its discretion in admitting testimony about Lee’s

possession of a gun similar to the murder weapon or by failing to

disqualify the assistant district attorney absent an actual conflict of

2 interest. Lee also failed to show that he received constitutionally in-

effective assistance of counsel. So we affirm his convictions and sen-

tence.

1. The evidence at trial showed the following.

(a) Lee and Bowen were in a relationship that many witnesses

described as tumultuous. A number of witnesses testified about in-

cidents of threats or violence in the relationship: Bowen’s father re-

called that throughout Bowen’s relationship with Lee, she would

have “busted” lips and bruises. One friend, Brittany O’Neal, testified

that on several occasions Bowen had sent her photos of “a gash on

her head” and “bruises all over her body.” Another friend recalled a

time when Lee accused Bowen of cheating on him and, according to

Bowen, “punched her in the crotch.” And several friends recalled

Bowen telling them about times when Lee kicked, hit, choked, or

threatened to kill her. In one such incident in late summer 2015, Lee

stuck a gun in Bowen’s mouth, put her in his car, and drove her

around “all night” threatening to kill her and telling her he would

“put [her] body in a well and they’d never find [her].”

3 In the months before the murders, the violence in Lee and

Bowen’s relationship escalated. Bowen moved in with Lee in late

August 2015. On that day, just before Bowen brought her belongings

to Lee’s house, Lee called her, cursed at her over the phone, and told

her not to come. When Bowen and a friend arrived at Lee’s house,

Lee came out of the house with a long barrel gun, ran toward the

friend’s car, stopped five or ten feet away, and fired the gun over the

top of the car.

A little over a week later, Lee called the police to ask about

removing Bowen’s property from his house. On the call, Lee admit-

ted to breaking the windows of Bowen’s van. A responding deputy

saw that Lee had used a drill to break Bowen’s windows and wind-

shield. The deputy arrested Lee for trespassing.

Soon after that incident, Bowen moved out of Lee’s house and

into a mobile home about a mile away. On November 1, Lee went to

Bowen’s mobile home, took away her phone, and tried to get inside.

Bowen shut the door on Lee, but Lee attempted to break in with an

axe. Bowen and her five-year-old daughter escaped out the back door

4 and hid in the woods. As they hid, Lee again broke all her car win-

dows. After this incident, Lee called Bowen’s father and the police

and told them that someone else had damaged Bowen’s car and door.

Bowen later texted a friend: “I’ll get a [temporary protective order]

if needed. I hate that it’s this way. I told him I don’t feel safe with

him . . . .” Three days later, on November 4, Bowen got a temporary

protective order against Lee. Afterward, on separate occasions,

Bowen saw Lee drive by her home “a lot” and once saw him standing

in her back yard shooting a gun into the air.

Lee also sent Bowen a number of threatening messages. On

November 17, Lee texted Bowen, “Don’t let me catch [you] with

somebody else.” The next day, Bowen had lunch at a restaurant with

a friend, Trey Adams. Lee’s daughter saw them there and texted

Lee. Lee then called Bowen and asked her, “who the f**k are you

with,” and called her a “f**king whore.” Bowen told Lee that she was

with Adams. Lee responded, “B***h, I’m going to f**k you up,” and

“Motherf**ker, I’m going to f**k [Adams] up, too.” About ten

minutes later Lee texted Bowen, “You are one trash b***h. Am so

5 done, b***h . . . . You got it coming.”

That night, James Harden went to Bowen’s house around 9:00

p.m. A half hour later, Adams called to check on Bowen, who said

she was fine and that she would see him the next day. At 10:18 p.m.,

Lee texted Bowen, “You at home??” He texted her again at 10:21

p.m., “U at home??” Bowen did not respond. At 10:22 p.m., Lee called

Bowen with *67 to hide his number. She did not answer.

At around 11:30 p.m., a group of four people were sitting by a

bonfire outside at a house “down the road” from Lee’s house when

they saw Lee drive by in a white Toyota truck. Lee drove by their

bonfire twice that night. The first time he was “riding along” nor-

mally, but the second time he was speeding, or “hauling a**” and

listening to “blaring” music.

Around 1:00 a.m. on November 19, Lee called the police and

reported hearing gunshots that woke him up. Officers arrived at

Lee’s house around 2:00 a.m. Lee told the police he had been working

in his shop until 9:00 or 9:30 p.m., went to sleep around 10:00 p.m.,

and woke up to the sound of gunshots.

6 In the morning, Bowen’s father drove to Bowen’s house. When

he arrived, he found Bowen’s front door open and a set of keys in the

door. As he walked into the kitchen, he saw Harden’s body lying in

the doorway between the kitchen and the bedroom. He then saw

Bowen lying in the bathroom on her back. Both were dead and had

numerous gunshot wounds. Bowen’s father immediately called 911.

That same day, GBI Agent Ben Collins interviewed Lee. At

first the interview was about Lee’s 911 call reporting the sound of

gunshots outside his house. But Agent Collins then told Lee that

“Bowen was deceased,” and “within a couple of minutes” of hearing

this, Lee asked, “was she shot with a pistol?” and “was she shot with

a gun?” Lee explained that his last contact with Bowen was the day

before the murders, on November 17, because “she had sent him a

text message stating that she could not have contact with him any-

more.” That statement was belied by Lee’s cell phone records, which

showed he called and texted Bowen on the night of the murders.

(b) The State introduced evidence that Lee shot Bowen’s friend,

Taylor, at Bowen’s house two weeks before the murders. On the day

7 of the shooting, Taylor stepped outside to smoke on Bowen’s back

steps, and saw Lee drive up to the house. Lee pulled a gun from his

truck and fired “[s]even, eight, nine” shots at Taylor. One of the bul-

lets struck Taylor’s right ankle.

According to Taylor, Bowen told him not to call the police about

the shooting because she did not want the Georgia Division of Fam-

ily and Children Services or “the law” to get involved. Taylor was

taken to a hospital, but he honored Bowen’s wishes and did not say

that Lee had shot him at Bowen’s home. Instead, he claimed he had

shot himself. Nevertheless, the next day, Bowen told O’Neal that

Lee had shot Taylor in the foot. But Lee claimed during his interview

with Agent Collins on November 19 that he had not seen Taylor in

three months. At trial, Taylor and O’Neal testified that Lee shot

Taylor. Lee’s own witness, Shonda Gillespie, testified to the same.

And another witness testified that Lee told him that Taylor was

struck in the “crossfire” between Lee and Bowen.

When Taylor heard that Bowen and Harden had been killed,

he told police Lee had shot him in the ankle. Because the bullet was

8 still in Taylor’s ankle, law enforcement had it removed and collected

for comparison testing. That bullet was later determined to have

been fired from the same gun as the bullets recovered from Bowen’s

and Harden’s bodies. All the bullets also matched four .22-caliber

shell casings that investigators found near Lee’s home. Taylor said

Lee shot him with a Ruger Mark II .22-caliber semi-automatic bull-

barrel gun. But a firearms expert testified that it would be difficult

to identify that gun at dusk or at night, when Taylor was shot. An-

other witness, Cam Fambrough, testified that about two years be-

fore the murders, he saw Lee with a .22-caliber pistol.

2. Lee contends that the evidence was not sufficient to support

his convictions for malice murder as a matter of constitutional due

process or under OCGA § 24-14-6.

(a) When evaluating a due process challenge to the sufficiency

of the evidence, “we view the evidence presented at trial in the light

most favorable to the verdicts and ask whether any rational trier of

fact could have found the defendant guilty beyond a reasonable

doubt of the crimes of which he was convicted.” See Peacock v. State,

9 314 Ga. 709, 714 (2) (b) (878 SE2d 247) (2022) (citation and punctu-

ation omitted). See also Jackson v. Virginia, 443 U.S. 307, 319 (III)

(B) (99 SCt 2781, 61 LE2d 560) (1979). In doing so, we “leave to the

jury the resolution of conflicts or inconsistencies in the evidence,

credibility of witnesses, and reasonable inferences to be derived from

the facts.” Perkins v. State, 313 Ga. 885, 891 (2) (a) (873 SE2d 185)

(2022) (citation and punctuation omitted).

Applying that standard here, the evidence summarized above

was sufficient for a rational trier of fact to find Lee guilty beyond a

reasonable doubt of malice murder. Ample evidence showed that Lee

had a history of abuse and jealousy toward Bowen, including his

threats to kill Bowen in the months before the murders. The evi-

dence also authorized the jury to conclude that Lee lied about where

he was on the night of the murders: Lee told law enforcement that

he was at home and went to sleep around 10:00 p.m., but the wit-

nesses from the bonfire on Lee’s street told police that they saw Lee

10 drive by twice that night around 11:30 p.m.2 Finally, the evidence

authorized the jury to find that Lee was the shooter: ballistics evi-

dence showed that the person who shot Bowen and Harden also shot

Taylor (and multiple witnesses testified that Lee shot Taylor), and

Taylor and Fambrough both saw Lee with a .22-caliber gun—the

kind of gun that the GBI firearm expert testified was the murder

weapon. See Smith v. State, 315 Ga. 357, 359-361 (1) (882 SE2d 289)

(2022) (evidence was constitutionally sufficient where two witnesses

identified the defendant as holding a rifle near the victim and a fire-

arms expert matched shell casings found at the crime scene and the

bullet that killed the victim with a rifle found near the defendant’s

house). This evidence was constitutionally sufficient to support Lee’s

2 Some of the bonfire witnesses’ testimony at trial deviated from this

timeline, but the jury was authorized to believe the bonfire witnesses’ prior statements to police and reject their inconsistent trial testimony. See Watkins v. State, 313 Ga. 573, 576-577 (2) (872 SE2d 293) (2022) (jury may credit wit- nesses’ prior statements and discredit portions of their trial testimony) (citing Agee v. State, 311 Ga. 340, 343 (1) (857 SE2d 642) (2021) (“A prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence.” (citation and punctuation omitted)), and State v. Hinton, 309 Ga. 457, 462 (2) (847 SE2d 188) (2020) (“The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.” (citation and punctua- tion omitted))). 11 convictions. See id.

(b) Lee also contends that the evidence was entirely circum-

stantial and did not rule out his alternative theories that either

Chris or Taylor committed the murders.

A conviction may rest on circumstantial evidence alone if that

evidence “exclude[s] every other reasonable hypothesis save that of

the guilt of the accused.” OCGA § 24-14-6. However, “not every hy-

pothesis is a reasonable one, and the evidence need not exclude

every conceivable inference or hypothesis,” only the reasonable ones.

Graves v. State, 306 Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation

and punctuation omitted; emphasis in original). “The questions

whether any alternative hypotheses are reasonable and whether the

circumstantial evidence excludes any such hypotheses are for the

jury.” Willis v. State, 315 Ga. 19, 24 (2) (880 SE2d 158) (2022). Fi-

nally, “we will not disturb the jury’s findings on those questions un-

less they are insupportable as a matter of law.” Id. (citation and

punctuation omitted).

The evidence here authorized the jury to reject Lee’s

12 alternative hypotheses as unreasonable. As recounted above, the

State presented ballistics evidence showing that the bullet found in

Taylor’s ankle was fired from the same gun as the bullets recovered

from Bowen’s and Harden’s bodies, and all of the bullets matched

four .22-caliber shell casings that investigators found near Lee’s

home. On appeal, Lee suggests Taylor could have shot himself in the

foot and then shot Bowen and Harden with the same gun, but the

jury could have rejected that hypothesis as unreasonable given the

lack of any apparent motive for Taylor to shoot Bowen and Harden

or any explanation for how matching .22-caliber casings ended up at

Lee’s home. And Lee suggests that Chris could have accidentally

shot his friend Taylor in the foot and then later shot Bowen and

Harden, but no evidence supported the theory that Chris shot Tay-

lor, and Chris had an alibi for the murders—a witness, Gillespie,

testified that she was with him until 1:00 a.m. the next morning. So

the jury was authorized to reject this hypothesis as unreasonable.

See Morris v. State, 317 Ga. 87, 94 (3) (891 SE2d 859) (2023) (jury

was authorized to reject as unreasonable the alternative theory that

13 another person was the shooter where the jury heard testimony de-

scribing the circumstances of the shooting and multiple people told

police that the defendant was the shooter).

3. Lee contends that the trial court committed reversible error

when it failed to grant his motion for new trial because the verdict

was contrary to the evidence and the principles of justice and equity

and was decidedly and strongly against the weight of the evidence.

This argument implicates the “general grounds” for obtaining a new

trial. See OCGA §§ 5-5-20; 5-5-21. When the general grounds are

properly raised in a timely motion for new trial, the trial court exer-

cises broad discretion to sit as a “thirteenth juror” and consider mat-

ters typically reserved to the jury, including conflicts in the evi-

dence, witness credibility, and the weight of the evidence. King v.

State, 316 Ga. 611, 616 (2) (889 SE2d 851) (2023). The trial court did

that here: the court expressly rejected Lee’s general grounds claim,

explaining that it independently reviewed the record and found the

verdict was “not contrary to the evidence,” “not decidedly nor

strongly against the weight of the evidence,” and “not contrary to

14 law and the principles of justice and equity.” And the merits of a

trial court’s decision on the general grounds are not subject to our

review—that decision “is vested solely in the trial court.” Id. (cita-

tion and punctuation omitted). So Lee’s claim that the trial court

should have granted his motion based on the general grounds pre-

sents nothing for us to review.

4. Lee next contends that the trial court abused its discretion

in admitting the testimony of Cam Fambrough because the evidence

was not relevant and should have been excluded under OCGA § 24-

4-403 (“Rule 403”).

(a) Before trial, the State moved to introduce evidence concern-

ing a 2013 incident when Lee went to Fambrough’s home with a fire-

arm that Fambrough described as a .22-caliber Browning Buck

Mark. At the pretrial hearing, Fambrough testified that Lee came

to his house in 2013 after Lee and Fambrough’s son got into a “little

tussle” earlier in the day and Fambrough’s son hit Lee. According to

Fambrough, Lee stood under Fambrough’s carport with a gun in his

holster and threatened to kill Fambrough’s son. Fambrough

15 explained that he recalled that Lee had a .22-caliber “bull barrel”

gun with a long barrel that looked like a Browning Buck Mark. The

State argued that Fambrough’s identification of Lee’s gun was rele-

vant because it matched the descriptions that Taylor and the fire-

arms expert gave of the murder weapon. The trial court allowed the

testimony but directed the State to limit questioning to whether

Fambrough saw Lee with that same kind of gun in 2013. At trial,

Fambrough testified that Lee had a “.22 pistol” with a “target barrel

on it, bull barrel, whatever you call it,” and did not go into the details

of the interaction.

(b) Evidence is relevant if it has “any tendency to make the ex-

istence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence.” OCGA § 24-4-401 (“Rule 401”). “‘A trial court’s decision

whether to admit or exclude evidence is reviewed on appeal for an

abuse of discretion.’” See State v. Brinkley, 316 Ga. 689, 690 (889

SE2d 787) (2023) (quoting Martinez-Arias v. State, 313 Ga. 276, 285

(3) (869 SE2d 501) (2022)).

16 The trial court did not abuse its discretion by concluding Fam-

brough’s testimony was relevant under Rule 401. Because the fire-

arms expert determined the victims were shot with a .22-caliber fire-

arm and the murder weapon was not found, evidence of Lee’s own-

ership of a .22-caliber firearm was relevant. Wilson v. State, 315 Ga.

728, 739 (8) (a) (883 SE2d 802) (2023) (video evidence of defendants

“brandishing a gun of the same model as the murder weapon” was

relevant); Hanes v. State, 294 Ga. 521, 524 (3) (755 SE2d 151) (2014)

(evidence of the defendant’s ownership of a gun “largely identical to

the murder weapon in size, style, and brand” was relevant).

(c) Under Rule 403, “[r]elevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury or by con-

siderations of undue delay, waste of time, or needless presentation

of cumulative evidence.” “Rule 403 is an extraordinary remedy,

which should be used only sparingly, and the balance should be

struck in favor of admissibility.” Harris v. State, 313 Ga. 225, 232 (3)

(869 SE2d 461) (2022) (citation and punctuation omitted). Thus, “in

17 reviewing issues under Rule 403, we look at the evidence in a light

most favorable to its admission, maximizing its probative value and

minimizing its undue prejudicial impact.” Id. (citation and punctua-

tion omitted).

The trial court did not abuse its discretion in determining this

testimony did not violate Rule 403. Fambrough’s testimony was, at

the direction of the trial court, limited to only the description of the

firearm Lee possessed. All Fambrough’s testimony showed was that

Lee was at his home in 2013 and had a gun holstered on his hip that

looked like a “.22 pistol” with a “target barrel” or “bull barrel” on it.

This testimony had probative value because the forensic analyst tes-

tified that the victims and Taylor were shot with a .22-caliber gun

and the actual murder weapon was never recovered. The “need for

this type of evidence was greater” in this case based on circumstan-

tial evidence “because it provided an additional set of facts from

which the jury was authorized to infer [Lee’s] guilt.” Harris, 313 Ga.

at 232 (3). And the danger of unfair prejudice did not substantially

outweigh the probative value of Fambrough’s testimony.

18 Fambrough’s testimony about Lee’s gun ownership was limited to

his observation of Lee with a gun similar to the murder weapon.

That was arguably inculpatory of Lee, but while “inculpatory evi-

dence is inherently prejudicial in a criminal case, Rule 403 does not

bar admission of such evidence merely because the defendant might

suffer some amount of prejudice upon its introduction; it is only

when unfair prejudice substantially outweighs probative value that

the rule permits exclusion.” Id. at 232 (3) (cleaned up) (emphasis in

original). Fambrough did not offer any details about the circum-

stances of their interaction, which might have unfairly cast Lee in a

negative light.

5. Lee contends that the assistant district attorney should have

been disqualified because of his previous representation of Lee “in

several different criminal cases” in which he “acquired information

and knowledge,” presenting a conflict of interest. We review the trial

court's ruling on a motion to disqualify a prosecutor for an abuse of

discretion. Neuman v. State, 311 Ga. 83, 88 (3) (856 SE2d 289)

(2021). In support of this claim, Lee cites only his motion to

19 disqualify and the trial court’s one-line order denying the same—he

points to no evidence in the record showing that the assistant dis-

trict attorney actually represented him in prior cases, let alone evi-

dence of the “information and knowledge” that the assistant district

attorney might have acquired during that alleged representation

that could have disadvantaged Lee. It is Lee’s burden to show what

evidence supports this claim on appeal, and having failed to do so,

his claim fails. Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d

113) (2017) (“The appellant bears the burden of proving error by the

appellate record.” (citation and punctuation omitted)).

6. Lee contends that his trial counsel provided ineffective as-

sistance in violation of the Sixth Amendment to the United States

Constitution.

To establish ineffective assistance of counsel, a defendant must

show both that his counsel’s performance was professionally defi-

cient 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 prove deficiency, he must show that his lawyer

20 ‘performed his duties in an objectively unreasonable way, consider-

ing all the circumstances and in the light of prevailing professional

norms,’ which is ‘no easy showing, as the law recognizes a strong

presumption that counsel performed reasonably.’” Scott v. State, 317

Ga. 218, 221 (2) (892 SE2d 744) (2023) (citation and punctuation

omitted). To show prejudice, he must show “that there is a reasona-

ble probability that, but for counsel’s deficiency, the result of the

trial would have been different.” Id. at 221-222 (2) (citation and

punctuation omitted). “A reasonable probability is a probability suf-

ficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694 (III) (B).

Lee raises seven separate arguments that trial counsel pro-

vided constitutionally ineffective assistance. Briefly, he claims that

counsel failed to (1) review “exculpatory” cell phone records; (2) re-

view evidence about Chris; (3) review evidence about Taylor’s shoot-

ing and as a result failed to effectively cross-examine Brittany

O’Neal and Taylor; (4) effectively cross-examine the State’s wit-

nesses about the lack of physical evidence and timeline of the

21 murders; (5) object to the admission of text messages based on GBI

Agent Chad Lott’s testimony; (6) renew his motion for change of

venue; and (7) provide Lee with all the discovery before trial. We

review each argument in turn.

(a) Lee contends that his trial counsel’s review of certain cell

phone records was ineffective assistance. Lee points to counsel’s fail-

ure to (1) introduce text messages between Chris and Bowen, alleg-

edly showing Chris’s rage toward Bowen in the hours before the

murders; (2) notice that the Uniform Forensics Extraction Device

(“UFED”) report—which showed data extracted from the victims’

cell phones—was missing for Bowen’s primary cell phone and, if pre-

sent, would have shown that Taylor lied about Lee shooting him in

the ankle; and (3) introduce a text message from Bowen to Scott

Harkleroad which would allegedly show Bowen knew nothing about

Lee shooting Taylor. The cell phone records underpinning this inef-

fectiveness claim are not in the record on appeal: at the motion for

new trial hearing, appellate counsel attempted to introduce a trial

“demonstrative aid” incorporating the text messages, but the trial

22 court ruled against its admission because it was not authenticated,

and Agent Lott testified that the UFED report was inaccessible be-

cause either a passcode was unavailable or the phone was damaged.

The unavailability of the records is fatal to these ineffective-

ness claims. Lee argues that counsel was deficient for failing to in-

troduce various text messages between Bowen and Chris, Taylor,

and Harkleroad, respectively, but he offers no evidence to support

his claim other than his own speculation that these texts exist and

that they would have been exculpatory. Such speculation is not

enough to establish deficient performance. See Payne v. State, 314

Ga. 322, 334 (3) (g) (877 SE2d 202) (2022) (holding counsel was not

deficient where appellant “offer[ed] no evidence in support of this

claim other than suggesting that additional investigation could have

led to exculpatory evidence”). See also Gittens v. State, 307 Ga. 841,

844 (2) (a) (838 SE2d 888) (2020) (“Unfounded speculation about

what additional investigation might have uncovered or about what

unnamed witnesses may have testified [to] cannot support a claim

that trial counsel was professionally deficient, nor can it establish

23 prejudice.”). Because it is Lee’s burden to show ineffective assistance

in the record, this claim fails. See Smith v. State, 307 Ga. 106, 117-

118 (6) (834 SE2d 750) (2019) (concluding ineffective assistance

claim failed because the appellants’ argument was speculative be-

cause they failed to identify any evidence in the record to support

the claim) (citing Norton v. State, 293 Ga. 332, 339 (7) (d) (745 SE2d

630) (2013) (“[S]peculation that error may have occurred is insuffi-

cient to show any deficiency on the part of counsel, or prejudice

therefrom, and is insufficient to show reversible error.” (alterations

accepted) (citation omitted))).

(b) Lee next contends his trial counsel was ineffective in failing

to review and present certain evidence about Chris.

At the motion for new trial hearing, Lee introduced (1) a GBI

investigative report detailing an interview with Chris after Bowen’s

death; (2) reports of incidents of domestic violence between Bowen

and Chris; and (3) evidence of Chris’s violence toward another

woman, Cheryl McCollum, months after the murders. At the hear-

ing, Lee did not ask trial counsel why he did not present evidence to

24 suggest Chris was an alternate suspect, call Chris as a witness, or

introduce any of the reports of domestic violence into evidence. In-

stead, appellate counsel asserted only that the evidence related to

Chris created “an insane amount of reasonable doubt,” and trial

counsel responded that he “didn’t see an insane amount of reasona-

ble doubt.”

(i) Lee fails to show prejudice from any alleged deficiency from

counsel’s failure to review and introduce the GBI interview report

and the incident reports of domestic violence between Chris and

Bowen. Lee identifies no portion of the GBI report of Chris’s inter-

view or the domestic violence incident reports between Chris and

Bowen that would have been “exculpatory.” The report reflects that

Chris was “extremely agitated and upset” when he was interviewed

on the night of the murders because he did not know why he was at

the Sheriff’s Department. The report otherwise narrates a dispute

between Chris and Bowen and Chris’s recollection of Bowen telling

him that Lee had abused her on several occasions, most of which

was introduced into evidence through other witnesses. Given that,

25 and the fact that Chris had an alibi for the night of the shooting, Lee

has not established that introducing the GBI report would have cre-

ated a reasonable probability of an acquittal. Stepp-McCommons v.

State, 309 Ga. 400, 409 (4) (b) (845 SE2d 643) (2020) (holding appel-

lant’s ineffective assistance claim failed because he failed to show

that the content of an interview contained exculpatory evidence rais-

ing a reasonable probability that, but for trial counsel’s failure to

introduce it at trial, the results of the trial would have been differ-

ent).

The same is true of the incident reports of domestic violence

between Chris and Bowen. Several of the reports were from months

or even years before the murders. Moreover, the reports were cumu-

lative of other evidence presented at trial, including the testimony

of Bowen’s father and friend who recalled Chris and Bowen’s abu-

sive relationship, which trial counsel highlighted in his closing ar-

gument. Lee has not shown that either the GBI report or the domes-

tic violence incident reports “contained exculpatory evidence raising

a reasonable probability that, but for trial counsel’s failure to

26 [introduce the reports at trial], the results of the trial would have

been different.” Stepp-McCommons, 309 Ga. at 409 (4) (b).

(ii) Lee has also failed to show trial counsel was deficient in

failing to review evidence about Chris’s threats toward McCollum.

Lee contends that if counsel had properly reviewed the evidence, he

would have introduced a police report from a July 6, 2016 incident

between Chris and McCollum in which Chris got angry with

McCollum, grabbed her, pushed her down, choked her, and then

pointed a gun at her and said he “would kill her like he did the last

b***h.”

Lee has not established that trial counsel acted unreasonably

by not introducing that report. To begin with, counsel was not asked

at the motion for new trial hearing why he did not call Chris as a

witness or about his reasoning in developing alternate suspects. Not

securing trial counsel’s testimony on these points makes it “particu-

larly difficult” for Lee to overcome the strong presumption that trial

counsel’s actions were part of a deliberate trial strategy. Jones v.

State, 296 Ga. 561, 567 (4) (769 SE2d 307) (2015).

27 In any event, the record offers a plausible strategic basis for

not introducing this report in support of a theory that Chris commit-

ted the murders. At trial, counsel developed the theory that Taylor

committed the murders. Counsel got Taylor to admit that he had

lied to police and hospital staff about who shot him. In his closing,

trial counsel argued that Taylor “lied to police and lied about what

happened” and “lied through the whole thing.” And other evidence

tended to make Taylor more attractive than Chris as an alternate

suspect. Gillespie testified that Taylor called her on the night of the

murders and whispered to her on the phone that “somebody” shot

up Lee’s house, which counsel emphasized in his closing argument.

Finally, Gillespie provided an alibi for Chris, testifying that she was

with Chris on the night of the murders until 1:00 a.m.—well after

9:30 p.m., which time trial counsel argued was the likely time of

death based on the evidence that the victims’ phones stopped show-

ing activity around that time. Given this evidence, a reasonable at-

torney could have opted to advance Taylor as an alternate suspect

rather than Chris, and he could have decided that introducing

28 evidence that tended to inculpate Chris could muddle or weaken

that defense. See Sullivan v. State, 308 Ga. 508, 511 (2) (a) (842

SE2d 5) (2020) (“A decision as to which defense witnesses to call is

a matter of counsel’s trial strategy and tactics and will not support

a claim of ineffective assistance of counsel unless it is so unreasona-

ble that no competent attorney would have made the decision under

the circumstances.” (cleaned up)); Brooks v. State, 309 Ga. 630, 637

(2) (847 SE2d 555) (2020) (“An attorney’s decision about which de-

fense to present is a question of trial strategy, and trial strategy, if

reasonable, does not constitute ineffective assistance of counsel.” (ci-

tation and punctuation omitted)). In short, Lee has failed to estab-

lish that not introducing this report was so unreasonable that no

competent attorney would have made such a decision under the cir-

cumstances. See Scott, 317 Ga. at 223 (2) (a).

(c) Lee contends his trial counsel provided ineffective assis-

tance by failing to review evidence about Taylor’s shooting and, as a

result, failing to impeach Brittany O’Neal or effectively cross-exam-

ine Taylor.

29 (i) At trial, O’Neal testified that Bowen revealed to her that Lee

was abusive toward Bowen on several occasions. Bowen sent O’Neal

photos of her bruises and cuts and called O’Neal after some of the

incidents, including the axe incident described in Division 1 (a).

O’Neal also testified that the day after Lee shot Taylor, Bowen called

her and told her that Taylor “was over at [Bowen’s] house and [Lee]

rode by or something and he went crazy and shot—there was [sic]

multiple gunshots fired and he had shot [Taylor] in the foot.”

O’Neal’s trial testimony ran contrary to her interview with the GBI

shortly after the murders, during which she explained that she was

“not familiar with an incident involving Joey Taylor and Wallace Lee

at Bowen’s residence.” Lee tendered a report of O’Neal’s GBI inter-

view at the motion for new trial hearing, and O’Neal testified that

she did not recall initially denying knowledge of the incident but

that she ultimately remembered Bowen sharing this with her be-

cause “after the initial shock of . . . Lee murdering [her] friend, [she]

did have some time to think and recollect [her] memories.” Lee con-

tends that counsel should have impeached O’Neal with her prior

30 inconsistent statement. In Lee’s view, O’Neal’s testimony was the

only evidence corroborating Taylor’s statement that Lee shot him,

so impeaching O’Neal would have made it much less likely that the

jury would believe that shooting happened.

But even if counsel’s failure to impeach O’Neal was deficient,

Lee fails to show that impeaching her “would have made any differ-

ence to the outcome of [his] trial.” Clark v. State, 307 Ga. 537, 542

(2) (a) (837 SE2d 265) (2019). To begin with, it is not clear introduc-

ing the report to impeach O’Neal would have been effective: O’Neal

explained at the motion for new trial hearing that “after the initial

shock of . . . Lee murdering [her] friend, [she] did have some time to

think and recollect [her] memories.” In any event, O’Neal was not

the only witness who testified that Taylor shot Lee: another witness

testified that Lee told him that Taylor was shot in the “crossfire”

between Lee and Bowen, Gillespie testified that Taylor told her that

Lee shot him, and of course, Taylor himself told the jury that Lee

shot him. Given that cumulative evidence, especially Taylor’s testi-

mony—likely more compelling than Bowen’s hearsay—it is not

31 likely that impeaching O’Neal would have changed the jury’s mind

about whether Lee shot Taylor. See id. (holding that there was no

reasonable probability that any additional impeachment of a wit-

ness “would have made any difference to the outcome” of the defend-

ant’s trial because trial counsel had impeached the witness in other

ways and another witness testified similarly about the incident) (cit-

ing McCoy v. State, 303 Ga. 141, 143 (2) (810 SE2d 487) (2018) (con-

cluding appellant failed to show prejudice because “even if trial

counsel had engaged in additional impeachment . . . there were still

two other eyewitnesses who knew [appellant], identified him as the

shooter, and gave similar descriptions of how he shot the victim”)).

So Lee has failed to establish prejudice.

(ii) Lee also contends that his counsel provided ineffective as-

sistance by failing to “effectively” cross-examine Taylor about the

day he was shot, his testimony that he “told everybody” Lee shot

him, and his identification of Lee’s gun. On cross-examination, trial

counsel asked Taylor about the day Taylor said he was shot by Lee.

Taylor stated that it was around dusk when Lee showed up and

32 started shooting and that Taylor was “running in circles,” “jumping

up and down,” and “freaking out.” Taylor also testified that he “lied

to the police officer” at the hospital about who shot him because

Bowen asked him to and only “corrected this lie” after learning about

the murders two weeks later.

Lee has not shown that trial counsel’s cross-examination of

Taylor was constitutionally deficient. “The scope of cross-examina-

tion is grounded in trial tactics and strategy, and will rarely consti-

tute ineffective assistance of counsel.” Priester v. State, 317 Ga. 477,

490 (5) (c) (893 SE2d 751) (2023) (citation and punctuation omitted).

Here, counsel cross-examined Taylor about the day he says Lee shot

him and the circumstances of that encounter, and counsel elicited

that Taylor lied to the police. Counsel then used that evidence in his

closing argument, highlighting Taylor’s testimony that he was “run-

ning in circles” and “jumping up and down” to cast doubt on Taylor’s

ability to accurately identify the type of gun Lee could have used,

particularly considering the firearms expert’s testimony that it

would be difficult to identify this type of gun at night or at dusk,

33 when the shooting occurred. See Washington v. State, 312 Ga. 495,

503 (3) (b) (863 SE2d 109) (2021) (“[D]eficiency cannot be demon-

strated by merely arguing that there is another, or even a better,

way for counsel to have performed.” (citation and punctuation omit-

ted)); Brown v. State, 303 Ga. 617, 621 (2) (b) (814 SE2d 364) (2018)

(holding that trial counsel was not deficient in failing to cross-exam-

ine a witness about an issue when counsel did ask about that issue

on cross-examination and the appellant made no argument about

how the issue could have been better presented). This cross-exami-

nation and counsel’s use of it as part of Lee’s defense was not “so

unreasonable that no competent attorney would have made them

under similar circumstances,” Bonner v. State, 314 Ga. 472, 476 (2)

(877 SE2d 588) (2022) (citation and punctuation omitted), so Lee has

failed to show that counsel’s performance was deficient, and his in-

effectiveness claim on this ground fails.

(d) Lee argues broadly that his trial counsel provided ineffec-

tive assistance by failing to “effectively” cross-examine the State’s

witnesses about (i) the lack of physical evidence tying Lee to the

34 crime scene, (ii) certain “deer cam” footage, and (iii) the State’s time-

line of the night of the murders.

(i) With respect to the failure to cross-examine witnesses suffi-

ciently about the “lack of physical evidence,” Lee highlights the lack

of shell casings found in Bowen’s yard, the lack of fingerprints re-

covered from the shell casings that were found at Lee’s home, tire

tracks and footprints at the crime scene that did not match Lee or

his truck, and the lack of gunpowder residue or blood spatter on Lee.

But trial counsel’s choices about using this evidence were not unrea-

sonable. After investigators testified about the lack of shell casings

found in Bowen’s yard and the lack of fingerprints on those found at

the crime scene, counsel asked about this on cross-examination and

brought it up in his closing argument. The jury heard by stipulation

that the footprints and tire tracks from the crime scene did not

match Lee or his truck. And a forensic pathologist testified that no

gunpowder residue or blood or other DNA evidence was found on

Lee, and counsel emphasized that testimony in his closing. Not

cross-examining the State witnesses further about these various

35 points rather than emphasizing it in closing is just the kind of stra-

tegic decision that will not be considered deficient unless no compe-

tent attorney would have made it under the circumstances, and Lee

has failed to make that showing here. See Bonner, 314 Ga. at 476 (2)

(appellant failed to show deficient performance where he “failed to

demonstrate how cross-examination of these witnesses would have

been helpful to him”).

(ii) As to the deer camera footage, trial counsel testified at the

motion for new trial hearing that he recalled watching it but “did

not see anything significant” or “useful,” on it. Appellate counsel at-

tempted to introduce this footage with audio into evidence at the

motion for new trial hearing, but the trial court ruled that it was not

admissible because the authenticity of the audio was disputed.

Without this footage in the record, Lee cannot establish how cross-

examination about it could have helped his defense and therefore

has not established that counsel’s performance was deficient. See

Smith, 307 Ga. at 117-118 (6) (appellant’s burden to show error by

the record); Bonner, 314 Ga. at 476 (2); Brown, 303 Ga. at 621 (2)

36 (b).

(iii) Lee contends that trial counsel was deficient in failing to

effectively cross-examine two sets of witnesses about the timeline of

the night of the murders: the bonfire witnesses who saw Lee driving

down the street, and a deputy who responded to a semi-truck that

was stuck in a ditch on Lee’s street and, later, to Lee’s 911 call about

the gunshots at his house.

Lee has not shown how counsel’s cross-examination of either

set of witnesses was so unreasonable that no competent counsel

would have made the same decisions.

Regarding the deputy, counsel elicited from the deputy that he

did not remember seeing Lee driving on Lee’s street close to where

Bowen lived when the deputy responded to the semi-truck accident

at around 11:45 p.m. or midnight the night of the murders. Counsel

emphasized that testimony in closing, and contrasted it with the

bonfire witnesses’ testimony that Lee was seen driving on Lee’s

street at around 11:30 p.m. So the record belies Lee’s argument that

trial counsel “never connected the timeline” of the deputy’s

37 testimony and the bonfire witnesses’ testimony. Lee makes no fur-

ther argument as to what counsel should have elicited on cross-ex-

amination of the deputy that would have been helpful to his defense,

so he has not established that trial counsel’s performance was defi-

cient. See Brown, 303 Ga. at 621 (2) (b).

As for the bonfire witnesses, counsel cross-examined the wit-

nesses about their ability to identify Lee and elicited that at least

some of their identifications were uncertain. And as noted above,

counsel highlighted this timeline in his closing argument, con-

trasting the bonfire witnesses’ sighting of Lee at around 11:30 p.m.

with the deputy’s testimony that he did not see Lee on Bowen’s road

at around 11:45 p.m. or midnight. In the same part of his closing,

counsel alluded to Agent Lott’s testimony that the victim’s cell

phones showed no activity after 9:33 p.m. Counsel argued that the

relevant timeframe for the murders was therefore around 9:30 p.m.,

not 11:30 p.m.

Given counsel’s strategy of downplaying the bonfire witnesses’

testimony—and the fact that Lee has not shown that any of the

38 bonfire witnesses would have testified any differently under further

cross-examination—Lee has not established that counsel’s cross-ex-

amination of those witnesses was constitutionally deficient. See

Priester, 317 Ga. at 490 (5) (c) (appellant failed to show deficiency

where he could not show that the witness “would have given a re-

sponse helpful to” the appellant on cross-examination) (citing Bon-

ner, 314 Ga. at 476 (2)). Thus, Lee fails to show counsel was deficient

and his ineffectiveness claim on this ground fails.

(e) Lee contends that his trial counsel provided ineffective as-

sistance by failing to object to the admission of Bowen’s and Lee’s

text messages. He contends that an objection was warranted be-

cause the State’s demonstrative aid lacked a foundation and because

GBI Agent Lott was not qualified as an expert.

At trial, the State introduced Bowen’s and Lee’s phone records

through the testimony of Agent Lott. Agent Lott testified to the

GBI’s method of extracting cell phone data using a software called

Cellebrite and explained that he conducted the Cellebrite extraction

of Lee’s phone. Agent Lott also testified about Lee’s and Bowen’s cell

39 phone records, which were received from Verizon Wireless and iden-

tified discrepancies between the records and the extracted data

showing that Lee had likely deleted the texts between himself and

Bowen.

At the motion for new trial hearing, trial counsel was not asked

why he did not object to the admission of the text messages through

the Verizon records or the Cellebrite data. But the Verizon records

underlying Agent Lott’s testimony were authenticated by the custo-

dian of the records. And regardless of whether the Cellebrite data

was properly authenticated, Lee fails to show that the State could

not have provided further foundation to support the admission of the

text messages had trial counsel objected. See Vivian v. State, 312

Ga. 268, 273-274 (2) (a) (862 SE2d 138) (2021) (appellant’s ineffec-

tiveness claim failed where he did “not argue, much less demon-

strate, that the State could not have provided additional founda-

tional support for the admission of the cell phones if his counsel had

objected”). See also id. at 273 (2) (a) (“[R]efraining from objecting to

foundational matters that can be readily cured is not an

40 unreasonable strategy.” (citation and punctuation omitted)).

Further, Lee has not overcome the presumption that counsel’s

decision not to object to Agent Lott’s testimony was strategic. As

summarized in Division 1 (b) above, Agent Lott testified at trial that

Lee had sent Bowen threatening text messages, including on the day

of the murders, and had called her from a hidden number. Agent

Lott also testified that Lee texted Bowen asking where she was on

the night of the murders at 10:18 p.m. and 10:21 p.m. and that the

victims’ phones stopped showing activity after around 9:30 p.m. In

closing, trial counsel relied on Agent Lott’s testimony that the

phones stopped showing activity around 9:30 p.m. to argue that the

relevant time frame for the murders was 9:30 p.m., not 11:30 p.m.

Thus, choosing not to object was consistent with counsel’s decision

to highlight Agent Lott’s testimony in support of his argument that

the relevant time frame was 9:30 p.m. Accordingly, Lee has offered

no evidence to overcome the presumption that trial counsel made a

reasoned strategic decision not to object to this evidence. Vivian, 312

Ga. at 273 (2) (a) (counsel’s decisions are presumed to be strategic if

41 not patently unreasonable and no evidence is presented to the con-

trary). So Lee fails to show deficiency and his ineffectiveness claim

on this ground fails.

(f) Lee contends that his trial counsel provided ineffective as-

sistance by failing to renew his motion for change of venue. Lee con-

tends the jury selection process showed actual prejudice, rendering

a fair trial impossible, because this was a “close-knit community,”

and nine potential jurors “were somehow connected to” Lee, Bowen,

Harden, their families, or the assistant district attorney. Lee also

contends that the fact that the jury returned a verdict within 30

minutes further supports his theory that the jury was “influenced

by their personal relationships and the pre-trial publicity.”

“To prevail on a motion to change venue, a defendant must

show either that (1) the setting of the trial was inherently prejudi-

cial or (2) the jury selection process showed actual prejudice to a de-

gree that rendered a fair trial impossible.” Mims v. State, 304 Ga.

851, 858-859 (2) (c) (823 SE2d 325) (2019). Lee does not argue that

the setting of the trial was inherently prejudicial. Instead, he

42 contends that the jury selection process showed actual prejudice be-

cause nine of the potential jurors knew Lee, Bowen, Harden, their

families, or the district attorney. But the number of jurors who per-

sonally know or know of people involved in the case does not alone

establish actual prejudice. See Moss v. State, 305 Ga. 878, 881 (2)

(828 SE2d 309) (2019). Instead, the key question here is whether

these jurors “could lay aside their opinions and render a verdict

based on the evidence.” Id. (citation and punctuation omitted). “Ac-

tual prejudice is thus shown by the excusal percentage — the num-

ber of potential jurors excluded for cause based on bias compared to

the total number of potential jurors questioned.” Id.

Here, the excusal percentage does not show actual prejudice.

Of the 48 potential jurors, only four were excused for cause. So even

including reasons aside from bias, the excusal rate in Lee’s case was

less than nine percent, well below what this Court has considered

“actual prejudice.” See, e.g., Moss, 305 Ga. at 881 (2) (excusal rate of

23 percent did not indicate actual prejudice in jury selection);

Chancey v. State, 256 Ga. 415, 432 (5) (C) (349 SE2d 717) (1986)

43 (excusal rate of 40 percent did not indicate actual prejudice). More-

over, none of the potential jurors who said that they had heard of

the case or knew of people involved said they were unable to be im-

partial. See Overstreet v. State, 312 Ga. 565, 579 (3) (b) (ii) (864 SE2d

14) (2021) (holding appellant presented no evidence suggesting ac-

tual prejudice where “although each prospective juror had heard

about the case in some way prior to jury selection, each of the jurors

who were ultimately empaneled affirmed during voir dire that they

could set aside what they had learned about the case outside the

courtroom and render a verdict based solely on the evidence pre-

sented” and “[t]he only juror who expressed any sort of ‘fixed bias’

regarding the case was excused for cause”). Absent evidence of ac-

tual prejudice, a renewed motion for change of venue would have

been meritless. Because counsel cannot be deficient for failing to file

a meritless motion, see Mims, 304 Ga. at 858 (2) (c), Lee’s ineffec-

tiveness claim fails on this ground.

(g) Lee next contends that his trial counsel provided ineffective

assistance by failing to provide Lee with all the discovery before

44 trial. Lee claims that before trial, counsel did not provide him (1)

photos of the crime scene, (2) deer camera video with audio, (3) cell

phone records, or (4) incident reports between Bowen and Chris and

between Bowen and Lee.

At the motion for new trial hearing, trial counsel explained

that he met with Lee before trial “[a]t least 10” times, “probably

more than that.” When asked whether he gave Lee all the discovery,

trial counsel stated that he “gave [Lee] everything [he] had,” includ-

ing bringing a computer to play videotaped interviews for him at the

jail. As for the phone records, trial counsel explained that because of

the passage of time since trial, he only recalled that “[w]e went over

a lot of records . . . . I don’t know if specifically we went over [the

Verizon records].” And trial counsel testified that he could not spe-

cifically recall whether he played the deer camera video for Lee and

could not recall whether he ever received any deer camera audio

from the State.

“[T]here is no per se rule requiring counsel for criminal defend-

ants to provide them with copies of all discovery materials.” Shank

45 v. State, 290 Ga. 844, 848 (5) (b) (725 SE2d 246) (2012). And Lee has

not explained “why, in his case, a decision not to provide him with

certain materials fell outside the bounds of reasonable professional

conduct,” so he has not shown that trial counsel’s performance was

deficient. Id. Thus, Lee’s ineffectiveness claim on this ground fails.

(h) Finally, Lee contends that the cumulative prejudicial effect

of trial counsel’s errors entitles him to a new trial. We have assumed

Lee’s trial counsel performed deficiently by (1) failing to cross-exam-

ine and impeach O’Neal, and (2) failing to introduce the GBI report

from Chris’s interview and the domestic violence reports of incidents

between Chris and Bowen. But these cumulative errors do not enti-

tle Lee to a new trial unless “actual prejudice resulted.” Schofield v.

Holsey, 281 Ga. 809, 811 (II) & n.1 (642 SE2d 56) (2007), overruled

on other grounds by State v. Lane, 308 Ga. 10, 23 (838 SE2d 808)

(2020). And as discussed above, counsel’s assumed failures are un-

likely to have affected the outcome at trial. As to O’Neal, it is un-

likely that any impeachment of her testimony about Lee shooting

Taylor would have affected the outcome of trial, since several other

46 witnesses testified that Lee shot Taylor. And the failure to introduce

the GBI interview report and the domestic violence reports had very

little prejudicial effect, even considered together, because they each

concern evidence that the jury still heard. For example, the jury

heard about Bowen and Chris’s abusive relationship and about

Chris’s whereabouts on the night of the murders through testimony

from other witnesses. And plainly, the omission of Chris’s denial of

his violence toward Bowen and his recollection of Bowen telling him

that Lee had abused her was not exculpatory and had no prejudicial

effect. Given the relatively minor impact of counsel’s assumed er-

rors, Lee has not shown that the cumulative prejudice from those

assumed errors likely affected the outcome of Lee’s trial. This claim

thus fails.

Judgment affirmed. All the Justices concur.

47 Decided February 6, 2024 — Reconsideration denied March 5,

2024.

Murder. Coffee Superior Court. Before Judge Spivey.

Jody D. Peterman, for appellant.

Marilyn P. Bennett, District Attorney, John A. Rumker, Assis-

tant District Attorney; Christopher M. Carr, Attorney General, Beth

A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C. Mal-

colm, Senior Assistant Attorneys General, Elizabeth H. Brock, Assis-

tant Attorney General, for appellee.