318 Ga. 199 FINAL COPY
S23A0864. RASHAD v. THE STATE.
MCMILLIAN, Justice.
Appellant Hassan Shareef Rashad was convicted of the malice
murder of two-year-old Adrian Mitchell, Jr., and other crimes.1
1 On June 29, 2018, Rashad was indicted for the malice murder of Adrian
(Count 1); felony murder of Adrian predicated on cruelty to children in the first degree, aggravated assault, and aggravated battery (Count 2); murder of Adrian in the second degree (Count 3); aggravated assault upon Adrian (Count 4); aggravated battery upon Adrian (Count 5); cruelty to children in the first degree against Adrian (Count 6); three counts of cruelty to children in the second degree against Adrian (Counts 7, 8, and 9); cruelty to children in the third degree against Adrian’s sister L. D. (Count 10); and driving with a suspended and revoked license (Count 11). Sydney Dean, Adrian’s mother, was indicted with Rashad on Counts 3, 8, and 9. Sydney entered a guilty plea to Count 3 and testified against Rashad at trial, while Counts 8 and 9 against her were nolle prossed. Counts 3, 7-9, and 11 against Rashad were also nolle prossed. On November 16, 2021, Rashad was tried and found guilty on all remaining counts—Counts 1, 2, 4-6, and 10. On December 2, 2021, he was sentenced to life in prison without the possibility of parole for malice murder (Count 1) and 12 months in prison for cruelty to children in the third degree (Count 10), to be served concurrently. The felony murder count (Count 2) was vacated by operation of law, and Counts 4, 5, and 6 merged into Count 1. On December 2, 2021, Rashad filed a motion for new trial, which he amended via new counsel on January 11 and February 13, 2023. After a hearing held on February 14, 2023, the trial court entered an order, dated March 20, 2023, denying Rashad’s amended motion for new trial. After Rashad filed a notice of appeal on March 23, 2023, this case was docketed to the August 2023 term of this Court and submitted for a decision on the briefs. Rashad now appeals, contending that the evidence was insufficient
to sustain his convictions and that his trial counsel provided
constitutionally ineffective assistance. For the reasons that follow,
his claims fail, and so we affirm.
1. Viewed in the light most favorable to the jury’s verdict, the
evidence at trial showed the following.
In the summer of 2017, Rashad entered into a romantic
relationship with Sydney Dean, who had two children from past
relationships, Adrian and L. D. The couple began living together in
September 2017, and after about a month, their relationship started
to deteriorate: Rashad verbally abused Sydney and began isolating
her from her family, starting with her father. Still, Rashad and
Sydney continued living together.
Throughout Sydney and Rashad’s relationship, witnesses
observed concerning details related to Adrian and Rashad. Sydney’s
neighbor noticed bruises and dark marks on Adrian after Rashad
moved in. In separate instances, that neighbor and Sydney’s father,
Daryl Dean, each saw Adrian shaking when he was with Rashad.
2 Adrian’s sister L. D., who was eight years old at trial, testified that
Rashad would “hang [Adrian] upside down and then start
whoopping [sic] him” even if he had not done anything wrong. And
as Sydney recounted, once in September 2017 after returning home,
where Rashad was with Adrian at the time, she found a broken
wooden back scratcher and saw a “mark” on Adrian’s chest. When
she asked Rashad what happened, Rashad replied that Adrian had
broken the back scratcher by banging it on the floor. As for the mark
on Adrian’s chest, he said Adrian was clumsy.
(a) The October 2017 Leg Injury
On October 8, 2017, Adrian was taken to the hospital, where
doctors concluded that his leg was fractured. The day prior, Adrian
had been playing and running around at home, as Daryl, who had
been with Adrian alone that day for a period of time, testified and
captured on video. At one point, Sydney and Rashad returned home,
and Daryl left. Adrian was walking around “fine” and did not
complain of leg pain after Daryl left, as Sydney later testified at
trial. Sydney then left to run errands, leaving Adrian alone at home
3 with Rashad. When she returned, before entering the house, she
heard Adrian screaming. When she went inside and asked Rashad
why Adrian was “screaming like he [was] dying[,]” Rashad replied
that he was just trying to change Adrian’s diaper. Sydney then took
Adrian with her to do another errand. At this time, she later
recounted at trial, Adrian was “whimpering,” though she could not
tell if anything was wrong with his leg.
After returning home, Sydney noticed that Adrian “was
holding onto the couch . . . [and] acting like he couldn’t walk on his
leg.” At another point, she saw Adrian lying “balled on the ground.”
Despite this concerning behavior, she put Adrian in bed that night
and went to sleep. The next morning on October 8, Sydney woke up,
saw Rashad changing Adrian’s diaper, and heard Adrian “hollering”
again. Rashad told Sydney that he thought something was wrong
with Adrian’s leg. Now thinking that Adrian had a sprained ankle,
Sydney took him to the hospital.
Doctors who examined and treated Adrian then concluded that
he had a fractured leg. Dr. Garrett Barnes, who was working in the
4 emergency room that day, testified that Adrian showed a type of leg
fracture that usually requires significant force, such as force from a
high-height fall or a car accident. This fracture, he testified, was
consistent with a fracture caused by an adult holding a child and
slamming him down. Dr. Melissa Davis, a pediatrician who
examined Adrian the next morning, recounted that Adrian had a
severe fracture of his left tibia, which was rarely seen in children
and usually needed very high energy to create, such as energy from
a motor vehicle accident.
Doctors also observed other injuries on Adrian’s body. They
noticed that Adrian had scratches on his neck, which Dr. Davis
noted seemed attributable to fingernails. Dr. Davis also observed
other external injuries and marks, including: a 3.5-centimeter
bruise on one of Adrian’s cheeks; bruising on his chest; circular
abrasions around his nipples that made her wonder if his nipples
had been twisted; and severe bruising in his groin area, which was
rare to find in young children, whose bruises often occurred on knees
or elbows, places that could hit the ground if a child fell. Internally,
5 Dr. Davis found that Adrian had hepatitis (diffuse inflammation of
the liver) that probably resulted from an “acute event.”2
Suspecting abuse, Dr. Davis called the Georgia Division of
Family and Children Services (“DFCS”), which then implemented a
safety plan that temporarily placed Adrian and L. D. under the care
of Sydney’s mother, Joyce Greene, and that permitted only
supervised contact between Sydney and her children while
prohibiting contact between the children and Rashad.3
In February 2018, the children were returned to Sydney’s
custody. At this point, Sydney still lived with Rashad.
(b) April 2018
After the children were returned to Sydney’s custody, she
usually worked night shifts in Calhoun from 7:00 p.m. to 7:00 a.m.,
while Rashad worked in Cartersville from about 7:00 or 7:30 a.m. to
2 Sydney gave several explanations for Adrian’s injuries, including that
he was playing with another child, that L. D. potentially stepped on his leg, and that Sydney rolled on top of him while they were napping on the couch. However, the doctors did not believe that Adrian’s injuries were consistent with Sydney’s explanations. 3 No charges for Adrian’s injuries, however, were brought against
Rashad or Sydney at the time. 6 4:00 or 5:00 p.m. Sydney would usually return from work at about
7:40 a.m., and Rashad would usually leave for work at around 7:00
a.m. For a period of time, Sydney’s sister would watch the children
between when Rashad left for work and when Sydney got home. A
few weeks before Adrian’s death in April, however, Sydney asked
her sister to stop watching the children, because Sydney did not
want her sister to get “cussed out” by Rashad. After that, Adrian and
L. D. were left alone from the time Rashad left for work until the
time Sydney returned home.
(i) April 12, 2018
On the morning of April 12, Sydney, taking Adrian with her,
dropped L. D. off at school and then ran errands with Adrian. After
Sydney and Adrian returned home, she cleaned the house and he
ran around. At one point, Adrian knocked a TV onto himself. Sydney
picked him up, and after he “wiggl[ed] to get back down,” she set him
down and he continued to play.
Later that day, Sydney took Adrian to a bank to get a money
order. Security footage and photos from the bank on April 12 at
7 around 1:30 p.m. captured Adrian looking around, playing with a
toy, and reaching for and kissing Sydney, who smiled and laughed.
Following the bank trip, Sydney took Adrian with her to pick up L.
D. from school at around 2:30 to 2:45 p.m. A teacher at L. D.’s school,
who saw Adrian in the car when Sydney came to pick up L. D.,
testified that Adrian appeared then “like he did every day when
[she] spoke to him.”
Sydney returned home with both children at about 3:00 p.m.,
fed them at about 4:30 p.m., bathed them, and then left for work at
about 6:15 p.m. for her 12-hour shift, which began at 7:00 p.m.4
Rashad returned home at some point between Sydney feeding the
children and her leaving for work. When Sydney got her first break
from work that night at around 9:00 or 10:00 p.m., she and Rashad
spoke on the phone for about an hour. In that call, Sydney did not
receive any indication from Rashad that anything was wrong with
4 A supervisor at Sydney’s workplace for the shift from 7:00 p.m. to 7:00
a.m. on April 12 to 13, 2018, testified that Sydney worked that shift and that she saw Sydney several times. Electronic timecards also showed that Sydney checked into work at about 6:50 p.m. on April 12 and clocked out at about 7:00 a.m. on April 13. 8 Adrian.
(ii) April 13, 2018
At about 2:30 a.m., Sydney received a text from Rashad asking
her how hard Adrian had hit himself and telling her that Adrian had
a mark on his head. Sydney returned to work, since at the time she
“just didn’t think it was . . . serious.” Rashad then sent her a photo
of Adrian’s head with red marks on it that Sydney had not seen
before she left for work. At about 3:00 a.m., Sydney texted that it
was hard for her to concentrate at work.
Early in the morning at about 6:00 a.m., after Sydney texted
Rashad to ask if he was up, he texted: “I hope this boy is okay [ ]b/c
he acted like his [sic] is so sleepy.” Sydney texted back that she was
worried about Adrian. At about 6:50 a.m., as she was getting off
work, she and Rashad spoke on the phone, and Rashad told her that
Adrian had a seizure. In that call, Rashad also told Sydney that
Adrian was okay before he left for work and that he had stuck a
spoon in Adrian’s mouth to keep his teeth from “chittering,” causing
a mark on his mouth.
9 Once Sydney got home, she picked up Adrian, but he would not
wake up. At 8:03 a.m., Sydney called 911, reporting that Adrian had
a seizure the night before.5 Adrian was taken to Floyd Medical
Center emergency department at 8:18 a.m. After about two hours
there, Adrian was flown to Children’s Healthcare of Atlanta.
Numerous medical personnel testified about their observations
of Adrian on April 13. Nathaniel Rench, a paramedic who picked up
Adrian that morning, recalled that Adrian seemed “lifeless” when
Sydney handed him over, that Adrian had bruises “pretty much
everywhere”—his face, body, limbs, genitals, legs, arms—and that
the bruises seemed to be in different stages of healing. Additionally,
Adrian’s left pupil was swelling and was bigger than his right, which
indicated to Rench that Adrian likely had a brain injury.
Dr. Cline Jackson, an emergency department doctor who
treated Adrian on April 13, testified that: Adrian showed significant
5 Before calling 911, Sydney called her friend Janelle, who advised her
to call 911. She also had a call at 7:53 a.m. with Rashad, in which she asked what happened; Rashad said Adrian was okay before he left. Rashad and Sydney discussed calling 911, and at one point agreed they needed to call 911. 10 evidence of head trauma and life-threatening injury; he had bruises
on his scalp, abdominal areas, his back, and the base of his penis; he
had bruises on his shoulder blade, chest, and trunk, which seemed
odd since children usually do not bruise these areas upon falling but
instead have injuries in places where they catch themselves; his
bruises were of “different ages,” which indicated that Adrian had
previous unreported injuries; and he had a low alertness and
neurological function score. CT results also showed that Adrian had
a fractured left seventh rib, which, Dr. Jackson testified, usually
requires “a lot of trauma” to fracture, as children’s ribs “are more
cartilaginous” and harder to break than those of adults. Based in
part on the different ages and locations of Adrian’s bruises, and
“[t]he fact that there was a previous visit or concern for non-
accidental trauma,” Dr. Jackson suspected abuse.
Dr. Jason Harrison, a neurosurgeon, also evaluated Adrian on
the morning of April 13. Dr. Harrison testified that imaging revealed
that large areas of the brain had not received blood for some time,
which suggested to him that Adrian had suffered an injury multiple
11 hours prior to his evaluation rather than within the last hour. Based
on the swelling that Dr. Harrison observed on Adrian’s brain, he
suspected that Adrian had suffered “significant brain trauma” that
caused unconsciousness.
Later at trial, both Dr. Jackson and Dr. Harrison testified that
Adrian’s injuries did not appear to be caused by a TV falling on him.
Dr. Jackson explained that a TV falling on Adrian’s face likely would
not have caused the injuries he had, given the kind of “intracranial
hemorrhaging” that Adrian showed, and because the TV at Sydney’s
home appeared “a lot lighter” than other TVs and the “face is a really
good shock absorber for the brain.” Moreover, Dr. Jackson and Dr.
Harrison indicated that the injuries that Adrian incurred were such
that their symptoms would likely have shown up immediately or
within two to four hours after the injury. A child with Adrian’s
injuries would likely not be alert and playing with toys right after
the injury occurred, Dr. Harrison testified.
At 9:01 a.m., about 40 minutes after Adrian entered the
emergency department, Rashad texted Sydney: “What did you tell
12 them what happen???” She replied: “Tv fell on him and symptoms
showed around 2:30. But didn’t think much bc he woke up and he
went to bed where I woke him up this morning and I got no
response[.]” Rashad then texted Sydney to ask if she “[told] them
about the seizure[.]” Rashad soon arrived at the hospital: at about
9:40 a.m., he texted Sydney that he was “[i]n the front” and he “told
them [he] was the daddy.”
(c) Interviews with Law Enforcement
While Sydney and Adrian were at the hospital’s emergency
department, Floyd County police officer Ojilvia Lom interviewed
Sydney. In this interview, Sydney recounted that on April 12 at
about 1:00 p.m., she heard a TV fall and found it on top of Adrian,
who was against the rail of his sister’s bed, but that he seemed fine
that afternoon and evening. Sydney told Officer Lom that she was
off work and at home with Rashad on the night of April 12.
After this interview, Officer Lom interviewed Sydney again,
this time at Sydney’s home with Rashad present. Sydney
maintained that she found a TV on Adrian’s face and his neck
13 against the bed on April 12. She stated again that she was off work
the night of April 12. Rashad did not correct this statement, and
also, told Officer Lom that on the morning of April 13, he was in
Atlanta.
Later that day, Sydney went to the police station, where she
was interviewed again and decided she “couldn’t lie no more.” She
explained that the TV fell on Adrian sometime on April 12 after
running errands with him in the morning and before picking up L.
D. from school, but that Adrian seemed normal after she picked the
TV up. In this interview, however, Sydney revealed that she was
actually working and not at home on the night of April 12 to 13.6
On April 13, 2018, law enforcement also interviewed L. D., who
was five years old at the time. L. D. recounted that Rashad was at
home the night of April 12 to 13, and that Adrian was crying that
night because Rashad “whooped him very hard.”
6 As Sydney explained, she had initially lied about being home the night
of April 12 because she did not want to “lose [her] kids” and she was influenced by Rashad. 14 (d) Further Medical Treatment and Examination
After Adrian was flown to Children’s Healthcare of Atlanta, he
underwent surgery to relieve pressure on his brain, but he died on
April 15, 2018. Dr. Bryant, a child abuse pediatrics specialist who
saw Adrian at Children’s Healthcare from April 13 to 15, believed
that his injuries resulted from non-accidental trauma. No single
impact besides something like a high-height fall or car accident
would have explained Adrian’s injuries, Dr. Bryant testified: Adrian
likely received multiple blunt traumas, or “some sort of force being
applied to his body.” Adrian not only had areas of bleeding and
swelling in his brain, but also a liver laceration and healing
fractures in multiple bones, including, as Dr. Bryant had observed
in other abused children, bones near his wrist. It would take a “very
significant amount” of force to lacerate a two-year-old’s liver, Dr.
Bryant testified, and she would not expect a laceration to be caused
by a child “playing with someone or . . . another child.” And, she
explained, children with the kind of brain injury that Adrian had,
likely would not “be happy and playful, walking around acting like
15 their normal self for a significant period of time” after incurring the
injury.
Externally, she observed bruises on Adrian’s abdomen,
scrotum, left buttock, base of his neck, top and middle of his chest,
as well as an abrasion on the underside of his penis. Dr. Bryant
suspected abuse, in part because she usually saw bruises in areas
that children injured in play, such as chins, shins, or areas with
bones right underneath the skin—not “areas that are covered” such
as the scrotum, buttocks, or penis.
After Adrian died, Dr. Lora Darrisaw, a medical examiner at
the Georgia Bureau of Investigation, performed an autopsy on him.
Dr. Darrisaw identified a red mark on the inner surface of his right
ear, which she found significant since ears “are protected areas that
don’t often get injured in accidental-type events.” She also found a
few injuries inside his mouth and on his inner left cheek, which she
testified were likely not the result of intubation from hospital
treatment. Internally, she found that he had a liver laceration and
tears in blood vessels supporting his small intestines, which she
16 thought were likely the result of significant trauma. Trauma also
likely caused Adrian’s other injuries, including: skull fracture
indicating “something hit the head”; hemorrhages in soft tissues
around Adrian’s left kidney and testicle area, indicating abdominal
trauma; bleeding under the dura (membrane-like material covering
the brain), which she said was caused by severe trauma rather than
surgery meant to treat the subdural bleeding; bleeding around the
tissues in the back of the eye, suggesting severe trauma to the head;
and bleeding in the tissue underneath Adrian’s buttocks, suggesting
that they had suffered impact.
Based on her examination, Dr. Darrisaw concluded that Adrian
died from “traumatic injuries of the head and torso” that “appeared
to be non-accidental” and classified his death as a homicide. She did
not expect “simply jumping on a bed and falling off or [the] TV” to
cause the injuries she found and this was in part why she concluded
the death was a homicide.
2. Rashad contends that the trial court erred in denying his
motion for a directed verdict because the evidence was insufficient
17 to sustain his convictions as a matter of constitutional due process
and under Georgia’s circumstantial evidence statute, OCGA § 24-
14-6. “The standard of review for the denial of a motion for a directed
verdict of acquittal is the same as for determining the sufficiency of
the evidence to support a conviction.” Jones v. State, 317 Ga. 466,
469 (1) (b) (893 SE2d 741) (2023) (citation and punctuation omitted).
And when we review the sufficiency of the evidence as a matter of
constitutional due process, 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.”
Henderson v. State, 317 Ga. 66, 72 (2) (891 SE2d 884) (2023). See
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). “Under this review, we must put aside any
questions about conflicting evidence, the credibility of witnesses, or
the weight of the evidence, leaving the resolution of such things to
the discretion of the trier of fact.” Frazier v. State, 308 Ga. 450, 452-
453 (2) (a) (841 SE2d 692) (2020) (citation and punctuation omitted).
18 Under Georgia statutory law, a conviction may rest solely on
circumstantial evidence if that evidence “exclude[s] every other
reasonable hypothesis save that of the guilt of the accused.” OCGA
§ 24-14-6. See Willis v. State, 315 Ga. 19, 23 (2) (880 SE2d 158)
(2022). “[N]ot every hypothesis is a reasonable one,” however, “and
the evidence need not exclude every conceivable inference or
hypothesis—only those that are reasonable.” Graves v. State, 306
Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation and punctuation
omitted; emphasis in original). “[W]hether any alternative
hypotheses are reasonable and whether the circumstantial evidence
excludes any such hypotheses” are questions “for the jury” and “we
will not disturb the jury’s findings on those questions unless they
are insupportable as a matter of law.” Willis, 315 Ga. at 24 (2)
(citation and punctuation omitted).
Here, the evidence was sufficient as a matter of constitutional
due process to authorize a jury to find Rashad guilty beyond a
19 reasonable doubt of the malice murder of Adrian.7 The testimony of
multiple doctors indicated that Adrian’s fatal injuries were the
result of non-accidental, significant force generated by multiple
blows. And evidence strongly indicated that these injuries were
inflicted on the night of April 12 to 13, 2018 when only Rashad—not
Sydney, who was working on night shift—was at home with Adrian
and L. D. Before that night, Adrian appeared alert and conscious:
security footage and photos showed him playing with a toy and
kissing Sydney at around 1:30 p.m. on April 12; he appeared “like
he did every day” to L. D.’s teacher around 2:30 to 2:45 p.m.; he was
conscious and eating at around 4:30 p.m.; and Rashad did not
7 Although Rashad purports to challenge the sufficiency of the evidence
for each of his convictions except “Count 12,” we evaluate the sufficiency of evidence only for Count 1 (malice murder). We do not review sufficiency for Counts 2, 4, 5, and 6 because those counts were either vacated by operation of law or merged. See Anderson v. State, 299 Ga. 193, 196 (1) n.4 (787 SE2d 202) (2016) (defendant’s claims about sufficiency of evidence were moot for crimes that were vacated by operation of law or that merged with murder). Rashad states that he “does not contest the sufficiency of the evidence on Count 12, Cruelty to Children in the Third Degree.” But Rashad’s reference to Count 12 in his appellate briefing appears to be a scrivener’s error because Rashad was actually convicted and sentenced only on Count 10 for cruelty to children in the third degree, so we also do not review the sufficiency of the evidence on Count 10. 20 indicate anything was wrong with him when Sydney and Rashad
spoke on the phone at around 9:00 or 10:00 p.m. But on the morning
of April 13, Adrian was unconscious, had bruises “pretty much
everywhere,” and showed significant evidence of head trauma and
life-threatening injury. As doctors testified, he was likely injured
immediately or two to four hours before the symptoms of his injuries
appeared, and several hours prior to being evaluated on the morning
of April 13. Then-five-year-old L. D. recounted that Adrian was
crying that night because Rashad “whooped him very hard.” And
evidence suggested that Rashad had physically hurt Adrian in the
past by bruising him and by fracturing his leg in October 2017.
Based on all the evidence presented, the jury was authorized to
conclude beyond a reasonable doubt that Rashad caused Adrian’s
death by beating him on the night of April 12 to 13, 2018. See
Johnson v. State, 316 Ga. 672, 680 (2) (a) (889 SE2d 914) (2023)
(evidence showing that victim suffered “non-accidental blunt force
injuries during a time when [defendant] was the only person present
and capable of inflicting such injuries” was “sufficient as a matter of
21 constitutional due process to support [defendant’s] convictions for
felony murder and cruelty to children in the first degree”).
The evidence was also sufficient under OCGA § 24-14-6.
Assuming without deciding that the evidence in this case was solely
circumstantial and not direct,8 the evidence authorized the jury to
reject Rashad’s alternate hypothesis that Adrian’s fatal injuries
resulted from a TV falling on his face causing his head to collide with
a bedrail. Several experts testified that Adrian’s injuries were non-
accidental and that they did not expect those injuries to be caused
by a TV falling on him. Dr. Darrisaw concluded that Adrian’s death
resulted from homicide. Moreover, as Doctors Jackson, Harrison,
and Bryant indicated, the symptoms of Adrian’s injuries probably
appeared immediately or within two to four hours after the injuries
occurred, thus suggesting that if a falling TV and hitting the bedrail
caused Adrian’s injuries, symptoms would have appeared
immediately after the TV fell or on the afternoon of April 12. Yet
8 See Garay v. State, 314 Ga. 16, 20 (2) (875 SE2d 631) (2022) (“if there
is any direct evidence presented by the State, the circumstantial evidence statute does not apply to a sufficiency analysis”). 22 evidence showed that Adrian was conscious, breathing, eating, and
playing after the incident with the TV. Thus, the evidence was
sufficient for the jury to reject as unreasonable the hypothesis that
Adrian’s death was caused by a falling TV.
3. Rashad next argues that his trial counsel provided
constitutionally ineffective assistance. To prevail on a claim of
ineffective assistance of counsel, a defendant must show that his
counsel’s performance was deficient and that the deficient
performance prejudiced the defendant. See Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To show deficiency, a defendant must show that his attorney
“performed his duties in an objectively unreasonable way,
considering 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, a defendant “must
establish a reasonable probability that, in the absence of counsel’s
23 deficient performance, the result of the trial would have been
different.” Moulder v. State, 317 Ga. 43, 47 (3) (891 SE2d 903) (2023).
“If a defendant fails to make a sufficient showing on one part of the
Strickland test, we need not address the other part.” Scott, 317 Ga.
at 222 (2).
(a) Rashad first argues that his trial counsel provided
ineffective assistance by failing to renew his objections to autopsy
photos admitted during trial—specifically, the photos in the State’s
Exhibits 34-37, 40-45, and 61-62. Before trial, Rashad’s trial counsel
filed a motion in limine seeking to exclude various autopsy photos
and photos that he claimed were gruesome and would inflame the
jury. At a pretrial hearing, trial counsel stated that he sought to
restrict the State’s use of the autopsy photos to only those necessary
to show Adrian’s injuries. The trial court deferred ruling on the
motion in limine at that time, but after conducting a hearing during
the trial on the admissibility of autopsy photos including those in
the State’s Exhibits 34-37, 40-45, and 61-62, the trial court ruled
that all the autopsy photos in these exhibits were admissible. These
24 autopsy photos were subsequently admitted without further
objection from trial counsel.
Rashad contends that his trial counsel provided ineffective
assistance by failing to renew his objection to these autopsy photos,
because the trial court “erred” in admitting these photos and his
trial counsel waived that error for review by failing to renew his
objections.9 Pretermitting whether the trial court abused its
discretion in admitting the photos, we conclude that Rashad need
not have renewed his objection to preserve the issue for appeal.
“Once the court makes a definitive ruling on the record admitting or
excluding any evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve such claim of error
for appeal.” OCGA § 24-1-103 (a). See Anthony v. State, 298 Ga. 827,
9 Also, in connection with his ineffective assistance claims, Rashad asserts that the trial court “erred and abused its discretion in admitting State’s Exhibit 32,” a photo of Adrian undergoing emergency treatment on April 13, 2018. But this assertion fails as part of Rashad’s ineffective assistance claim because that claim hinges on trial counsel’s failure to renew his objection to autopsy photos, and here trial counsel objected to Exhibit 32 immediately before it was admitted during trial. And, insofar as Rashad makes this assertion of trial court error separate from his ineffective assistance claim, we deem that enumeration abandoned, because Rashad provides no argument or citation of authority to support it. See former Supreme Court Rule 22 (2023). 25 831-32 (4) (785 SE2d 277) (2016). Here, after Rashad’s trial counsel
moved in limine and asked in a pretrial hearing for the trial court to
exclude unnecessary autopsy photos, and after the trial court
conducted a hearing on the admissibility of the autopsy photos now
listed in Rashad’s appellate enumeration, the trial court definitively
ruled that those photos were admissible, and they were later
admitted at trial. Thus, trial counsel did not need to renew his
objection to these photos to preserve the issue for appeal, and the
failure to renew the objection did not constitute deficient
performance.10 See Anthony, 298 Ga. at 831-32 (4).
(b) Second, Rashad contends that his trial counsel gave
ineffective assistance by failing to object or move for a curative
instruction or mistrial after Sydney referenced Rashad’s previous
time in jail. When the State asked on direct about how she and
10 Because Rashad’s assertion that the trial court erred in admitting various autopsy photos is solely a part of his ineffective assistance claim and he does not assert a separate claim of trial court error, and because we have resolved that ineffective assistance claim by explaining that Rashad's trial counsel did not need to renew his objection to preserve the issue for appeal, we need not address whether the trial court actually erred or abused its discretion in admitting the autopsy photos listed in Rashad’s appellate brief. 26 Rashad organized their finances, Sydney testified: “It was split.
[Rashad] felt like since he moved up here from Atlanta, I should be
paying that, and he should be getting on his feet since he just got
out of jail.” Rashad contends that his trial counsel performed
deficiently by allowing this testimony, which Rashad characterized
as “evidence of his bad character,” to be heard by the jury even
though the State had not given prior notice and the trial court had
not decided admissibility under OCGA §§ 24-4-404 (b) (“Rule 404
(b)”) and 24-4-403.
Pretermitting whether this testimony constituted other acts
evidence under Rule 404 (b), we conclude that Rashad has not shown
that his trial counsel “performed his duties in an objectively
unreasonable way” by failing to object or to move for a curative
instruction or mistrial. See Scott, 317 Ga. at 221 (2) (citation and
punctuation omitted). Sydney’s reference to Rashad’s previous stint
in jail was fleeting: She did not refer to why Rashad had been in jail,
and after she made the jail reference, the State did not inquire into
it any further. In this context, the reference likely had little
27 prejudicial effect on the jury, and raising an objection could have
drawn further attention to the matter. As trial counsel testified, he
did not seek a mistrial because he “really did not believe that” he
had “adequate grounds” for one, and he did not object or seek a
curative instruction because doing so would have drawn further
attention from the jury to a comment “said in passing.” These
choices—at least some of which counsel himself indicated were “trial
strategy” decisions—were not objectively unreasonable so as to
constitute deficient performance. See Blackshear v. State, 309 Ga.
479, 486 (3) (847 SE2d 317) (2020) (“Trial tactics and strategy are
almost never adequate grounds for finding trial counsel ineffective
unless they are so patently unreasonable that no competent
attorney would have chosen them.” (citation and punctuation
omitted)); Brewer v. State, 301 Ga. 819, 820 (2), 821 (3) (804 SE2d
410) (2017) (trial counsel’s “strategic decision” to decline a curative
instruction so as “not to draw the jury’s attention” to a witness’s
allegedly improper character testimony about using “jail booking
information to locate” defendant, was “within the wide latitude of
28 presumptively reasonable professional conduct” (citation and
punctuation omitted)).
(c) Next, Rashad argues that his trial counsel rendered
ineffective assistance by failing to object or to move for a mistrial or
curative instruction after Sydney’s father Daryl testified about
threats from Rashad at Daryl’s workplace.
Daryl testified on redirect that he and Rashad had worked at
the same location at one point; that after Adrian suffered a leg
fracture in October 2017, Daryl told his workplace human resources
department that he thought Rashad caused Adrian’s leg injury so it
would be best if Rashad were kept away from Daryl; and that
Rashad almost hit him on three occasions with a piece of machinery
used to unload trucks and said the words “dead man walking” to
him.
Assuming, without deciding, that trial counsel performed
deficiently by not objecting to Daryl’s statements and that an
objection would have led to the exclusion of the evidence, we
conclude that Rashad has not shown a “reasonable probability that,
29 but for” this failure, “the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694 (III) (B). See also Moulder,
317 Ga. at 47 (3). As we showed in Division 2, the evidence of
Rashad’s guilt is very strong. In addition, Daryl’s challenged
statements stemmed from the properly admitted evidence that
Rashad had broken Adrian’s leg and caused other injuries which led
to a DFCS investigation and the removal of the children from the
home with orders that Rashad have no contact with them. That
Daryl, as the children’s grandfather, disliked Rashad as a result,
and that Rashad acted out against Daryl was only marginally
relevant, if at all, to the prosecution for Adrian’s murder, and thus,
had minimal probative value on the issue of whether Rashad
committed Adrian’s murder, making it unlikely to have caused a
difference in the outcome of the trial. See Olds v. State, 299 Ga. 65,
75 (2) (786 SE2d 633) (2016) (“the probative value of evidence
derives in large part from the extent to which the evidence tends to
make the existence of a fact more or less probable” (emphasis in
original)). Likewise, the evidence of Rashad’s conduct toward Daryl
30 was not particularly prejudicial when viewed in context given that
Rashad did not physically harm Daryl in these interactions and it
was understandable that the two men did not like one another.
Accordingly, in light of the strong evidence of Rashad’s guilt,
we conclude that Rashad has failed to show a reasonable probability
that, but for the alleged errors related to Daryl’s testimony, the
outcome of the trial would have been different. See Naples v. State,
308 Ga. 43, 54 (3) (a) (838 SE2d 780) (2020) (testimony that relatives
of the child victim did not like the appellant, among other things,
was not “particularly disparaging of [the appellant’s] character
when viewed in context, especially given the strength of the other
admissible evidence against him”); Toomer v. State, 292 Ga. 49, 58-
59 (4) (734 SE2d 333) (2012) (no prejudice from failure to object to
bad character evidence, where such evidence was “buried in four
long interview videotapes that were played during the testimony of
three different witnesses” and where “the evidence of Appellant’s
guilt was strong”). Thus, Rashad has not shown prejudice, and his
claim of ineffective assistance on this ground fails.
31 (d) Rashad also asserts that his trial counsel provided
ineffective assistance by failing to object or to move for a curative
instruction or mistrial after Sydney testified that Rashad
threatened her father at his and Rashad’s shared workplace. On
direct, after Sydney spoke about Rashad’s threats against her and
Daryl—including Rashad’s comment to her that he “watched [her]
daddy go home”—the State asked: “Did [Rashad] make any other
threats towards your dad?” Sydney responded: “I guess when they
was working together.”
Rashad argues that his trial counsel performed deficiently by
failing to object or to move for a curative instruction or mistrial after
this response. But at the motion for new trial hearing, trial counsel
was not asked why he did not immediately object to or otherwise
challenge Sydney’s testimony on Rashad’s workplace threats
against Daryl, and “in the absence of evidence to the contrary,
counsel’s decisions are presumed to be strategic and thus
insufficient to support an ineffective assistance of counsel claim.”
Tabor v. State, 315 Ga. 240, 244 (1) (882 SE2d 329) (2022) (citation
32 and punctuation omitted). In addition, that Rashad threatened
Sydney’s father was cumulative of earlier unchallenged testimony
from Sydney that Rashad had threatened her father and others in
her family. Under these circumstances, we conclude that Rashad
has failed to carry his burden of showing that trial counsel’s failure
to object to Sydney’s testimony was objectively unreasonable so as
to constitute deficient performance. See Blackshear, 309 Ga. at 486
(3); Snipes v. State, 309 Ga. 785, 794 (3) (b) (iv) (848 SE2d 417) (2020)
(counsel not deficient in failing to object to allegedly improper
character evidence that was “largely cumulative of other admissible
testimony”); Sawyer v. State, 308 Ga. 375, 384 (2) (b) (839 SE2d 582)
(2020) (trial counsel not deficient in failing to object to cumulative
testimony).
(e) Rashad finally asserts that counsel rendered ineffective
assistance by failing to object or to move for a mistrial or for curative
instructions to testimony by Greene that he characterizes as bad
character evidence. Greene, when asked on direct whether Sydney
seemed to “work” her DFCS case plan, replied: “No, because I think
33 [Rashad] was still around. He was still around.” At the motion for
new trial hearing, counsel testified that he did not object to this
testimony because he did not think that the testimony was
objectionable other than perhaps on the basis that it was speculative
and, in any event, the challenged statement was brief.
We conclude that counsel was not deficient in failing to object
to this testimony. Greene’s challenged comment was fleeting and
cumulative of other properly admitted evidence, including a former
DFCS employee’s testimony that Sydney did not comply with the
DFCS plan by failing to be “forthcoming about incidents,” as well as
evidence indicating that Sydney had lied to law enforcement in the
past due to Rashad’s influence and that she and Rashad continued
to live together after the start of the plan. It would not be objectively
unreasonable for trial counsel, as a matter of trial strategy, to
refrain from objecting to this testimony so as not to draw attention
to it, particularly in light of other evidence from which the jury could
have inferred that Sydney did not comply with the DFCS plan
because Rashad was still around. See Blackshear, 309 Ga. at 486 (3);
34 Brewer, 301 Ga. at 821 (3). This claim for ineffective assistance also
fails.11
Judgment affirmed. All the Justices concur, except Warren, J.,
who concurs in judgment only in Division 3 (c).
Decided February 6, 2024.
Murder. Floyd Superior Court. Before Judge Sparks.
Katherine M. Mason, for appellant.
Leigh E. Patterson, District Attorney, Emily G. Johnson,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Matthew B. Crowder, Assistant Attorney
General, for appellee.
11 Finally, to the extent that Rashad claims he was deprived of a fair trial
due to the cumulative prejudice resulting from his trial counsel’s errors, see Scott, 317 Ga. at 226 (3) n.5 (referencing Schofield v. Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56) (2007)), we need not address this claim because “we have assumed deficiency in only one instance” and Rashad “has failed to establish any other instance of deficiency.” See Scott, 317 Ga. at 226 (3). 35