307 Ga. 722 FINAL COPY
S19A1302. REDDING v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Kerri Redding was convicted of malice murder and
other crimes in connection with the shooting death of Christopher
Kenyatta. Appellant contends that his trial counsel provided
ineffective assistance by failing to raise the possible biases of two
witnesses and by failing to object to certain testimony from the lead
detective. Appellant also claims that the trial court erred by not
allowing him to impeach an out-of-court declarant with a certified
copy of the declarant’s conviction. We see no reversible error, so we
affirm.1
1 Kenyatta was killed on July 6, 2016. On March 28, 2017, a DeKalb
County grand jury indicted Appellant for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. His trial began on December 4, 2017, and on December 8, the jury found him guilty of all charges. On December 12, the trial court sentenced Appellant to serve life in prison for malice murder and five consecutive years for the firearm offense. The felony murder count was vacated by operation of law, and the aggravated assault count merged. Appellant filed a timely motion for new trial, which he later amended through new counsel. After an evidentiary 1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following. In the spring of 2016,
Kenyatta lived in an apartment with his girlfriend Michelle
Alamonord. Appellant and his friend Christopher Gaskins often
stayed in an apartment next door. Kenyatta and Appellant were
friends, although they began getting into arguments as summer
approached.
The first argument arose when Appellant refused to pay
Kenyatta $20 that Appellant owed him. Kenyatta asked Appellant
for the money on several occasions, which angered Appellant. In
early June, Appellant and Kenyatta argued again after Kenyatta
drank two of Appellant’s beers, but refused to pay Appellant for the
entire six-pack. Appellant became so mad that he threatened to get
his gun.2 That night, Appellant told Derek White, a drug dealer who
also lived in the apartment complex, that Kenyatta planned to rob
hearing, the trial court denied the motion on December 17, 2018. Appellant then filed a timely notice of appeal, and the case was docketed in this Court for the August 2019 term and submitted for decision on the briefs. 2 Several witnesses later testified that Appellant often carried a .22-
caliber handgun in his pocket. 2 and beat up White. According to Alamonord, Appellant and
Kenyatta had actually planned to rob and beat up White together,
and Appellant told White that Kenyatta alone made the plan to get
back at Kenyatta after their argument about the beer.
A few days before the murder, Appellant told Alamonord that
Kenyatta had cheated on her. Appellant also said, “F**k Chris
[Kenyatta], I don’t like him.” Alamonord asked Kenyatta about his
cheating, and he responded, “I know exactly who told you that.” Two
days later, Kenyatta confronted Appellant; they argued and
Kenyatta told Appellant, “if you want to fight, we can fight or else
since you have that little gun, you can go ahead and use it.”
On the night of July 5-6, 2016, Kenyatta was hanging out with
his friend Justin King, Appellant, Gaskins, and a few other people
at the apartment where Appellant and Gaskins stayed. According to
King, around 2:30 or 2:45 a.m., Kenyatta told King, Appellant, and
Gaskins that he was going to the store to buy some cigarettes and
snacks, and King asked Kenyatta to buy him some chips and a drink;
King gave Kenyatta his credit card and Kenyatta left; and Appellant
3 and Gaskins left the apartment five to ten minutes later.
Around 8:00 a.m., a police officer responded to a 911 call
reporting a body lying on a trail through the woods between the
apartment complex and a nearby convenience store. The officer
found Kenyatta, who had died from multiple gunshot wounds, lying
face up on the trail. He had King’s credit card, and a bag that
contained chips and a drink was beside him on the ground.
That night, Appellant and Gaskins went to Gaskins’s sister
Shannon Johnson’s house, where they also sometimes stayed.
Appellant smirked as he told Johnson that “it was messed up how
they did [Kenyatta].” The next morning, Appellant left Johnson’s
house; he did not take with him most of the belongings that he
usually kept at the house, and Gaskins and Johnson did not see
Appellant after that.
Detectives interviewed Gaskins on July 17, December 11,
December 16, and December 20, 2016. During the first three
interviews, Gaskins said that Kenyatta left Gaskins and Appellant’s
apartment in the early morning hours on July 6; that Appellant,
4 Gaskins, and Gaskins’s girlfriend also left; that Gaskins’s girlfriend
gave Appellant a ride to his grandmother’s apartment, which was in
the same complex; and that the girlfriend then dropped off Gaskins
at Johnson’s house. Gaskins’s final interview on December 20 was
audio recorded and later played for the jury; during that interview,
Gaskins admitted that Appellant had returned to their apartment
sometime later on the morning of the shooting and told Gaskins that
Appellant got into a struggle with Kenyatta “in the cut” and shot
him.3 After the interview, the police charged Gaskins with making
false statements. Later that day, police obtained an arrest warrant
for Appellant, and three days later, he was arrested at an apartment
complex in Auburn, Alabama.
At trial, Gaskins recanted his December 20 statement and
claimed that the story he told in his first three interviews was true.
Johnson also testified for the State; she said that at some point after
Kenyatta’s murder, Gaskins told her that Appellant killed
3 A detective testified that “the cut” referred to the trail through the
woods where Kenyatta’s body was found.
5 Kenyatta. Gaskins also told her that blood got on Appellant’s
clothing when Kenyatta was shot.4 In addition, a friend of Johnson
testified that Johnson told her that Appellant and Gaskins came to
Johnson’s house shortly after the shooting and that their clothes
were bloody. According to the friend, either Johnson, Appellant, or
Gaskins disposed of the bloody clothes.5
The medical examiner who performed Kenyatta’s autopsy
testified that Kenyatta was shot five times — once each in the hand,
chest, abdomen, back, and neck. The medical examiner removed four
.22-caliber bullets from Kenyatta’s body and testified that the
location of the bullet wound on Kenyatta’s hand was consistent with
his defending himself against an attack. A firearms examiner
testified that all four bullets were fired from the same .22-caliber
gun and explained that various kinds of .22-caliber guns could have
4 Johnson claimed that Gaskins’s statements were based on things he
had heard in the neighborhood, not his direct knowledge. Gaskins also testified that he told Johnson that Appellant killed Kenyatta because he assumed it, “based off of [their] verbal disagreement[s].” 5 Johnson testified that she did not see Appellant or Gaskins wearing
bloody clothes, did not help dispose of the clothes, and did not tell her friend that she disposed of the clothes. 6 fired the bullets, including a Mossburg .22 rifle, a Savage .22
Magnum rifle, a Rome .22 revolver, or a North American Arms .22
Magnum revolver. Because there were no shell casings at the scene
of the crime and revolvers do not eject casings, detectives concluded
that the gun was most likely either a Rome or a North American
Arms revolver. The State presented evidence that in September
2015, Clayton County sheriff’s officers confiscated a North American
Arms .22 Magnum revolver from Appellant during a traffic stop. The
gun was returned to Appellant in April 2016, about three months
before Kenyatta’s murder.
Appellant did not testify. His defense theory was that the
apartment complex and trail where Kenyatta was shot were in a
high-crime area and that someone else shot him. To support that
theory, Appellant pointed to a tip to investigators from a woman who
lived near the trail; the woman said that she heard gunshots and
female voices around the time Kenyatta was killed. Appellant also
argued that White, after learning from Appellant that Kenyatta
planned to rob him, could have killed Kenyatta.
7 Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
with this Court’s practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial and summarized
above was sufficient to authorize a rational jury to find Appellant
guilty beyond a reasonable doubt of the crimes of which he was
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979). See also Green v. State, 304 Ga. 385, 387-388
(818 SE2d 535) (2018) (“‘It is the role of the jury to resolve conflicts
in the evidence and to determine the credibility of witnesses, and
the resolution of such conflicts adversely to the defendant does not
render the evidence insufficient.’” (citation omitted)).
2. Appellant contends that his trial counsel provided ineffective
assistance in two ways. To prevail on these claims, Appellant must
prove both that his counsel’s performance was professionally
deficient and that he was prejudiced as a result. See Strickland v.
Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
8 To establish deficient performance, Appellant must show that
counsel performed his duties in an objectively unreasonable way,
considering all the circumstances and in the light of prevailing
professional norms. See id. at 687-690.
This is no easy showing, as the law recognizes a “strong presumption” that counsel performed reasonably, and Appellant bears the burden of overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, “decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.”
Brown v. State, 302 Ga. 454, 457 (807 SE2d 369) (2017) (citations
omitted). To prove prejudice, Appellant must demonstrate a
reasonable probability that, but for counsel’s deficiency, the result
of the trial would have been different. See Strickland, 466 U.S. at
694. We need not address both parts of the Strickland test if
Appellant makes an insufficient showing on one. See id. at 697.
(a) Appellant first claims that his trial counsel provided
ineffective assistance by failing to adequately cross-examine King
and Gaskins about their possible biases in testifying for the State. 9 Appellant argues that his counsel should have questioned those two
witnesses about the possible prison sentences they were facing in
connection with criminal charges brought before they testified. But
Appellant has not proved that his trial counsel performed
deficiently.
On direct examination, King testified that he was charged with
burglary in 2015; that he pled guilty to that crime under the First
Offender Act in early 2017; and that he was on probation at the time
of trial. Appellant’s counsel began cross-examination of King by
referencing his probation and asking if there were warrants for his
arrest and if he was aware that he was being taken into custody.
King replied that there had been a “misunderstanding” with his
probation officer but that everything “should be worked out.”
Counsel again asked King if he had been taken into custody just
before he testified, and King answered, “Right.” Counsel then moved
on to other questions.
Appellant now asserts that his trial counsel should have asked
King about the 20-year maximum sentence he could have received
10 for burglary, because that charge was pending when the police
interviewed him about Kenyatta’s murder and because he may have
been facing a revocation of his first-offender probation when he
testified. Appellant has not shown, however, that King had any sort
of plea deal with the State — on the burglary charge or the potential
probation violation — in exchange for his statement to the police or
his testimony at trial. Thus, the trial court could have prohibited
Appellant’s trial counsel from cross-examining King about his
possible sentence. See, e.g., Smith v. State, 300 Ga. 538, 541-542
(796 SE2d 666) (2017) (holding that the trial court did not abuse its
discretion by prohibiting trial counsel from cross-examining the
defendant’s co-indictee about his potential life sentence for murder,
because he had not obtained a concrete plea deal from the State in
exchange for his testimony). Because Appellant has not established
that the trial court would have allowed his counsel to question King
about his possible sentence, he has not established that counsel
performed deficiently by failing to ask those questions. See
Flannigan v. State, 305 Ga. 57, 61-62 (823 SE2d 743) (2019)
11 (concluding that trial counsel did not perform deficiently by failing
to cross-examine the defendant’s co-indictee about the possible life
sentences he faced, as the trial court could have exercised its
discretion to prohibit counsel from asking those questions because
the co-indictee did not have a concrete plea deal with the State in
exchange for his testimony).
Moreover, trial counsel elicited King’s testimony that King had
been arrested for a possible probation violation and also attempted
to cast doubt on King’s credibility by suggesting that he had been
using drugs on the night of the murder and by emphasizing that
King had been close with Kenyatta but not with Appellant. Trial
counsel’s decision to forgo cross-examining King about his possible
prison sentence — a line of questioning that the trial court could
have prohibited — and to instead challenge King’s credibility in
other ways was a reasonable strategy. See, e.g., Romer v. State, 293
Ga. 339, 344 (745 SE2d 637) (2013) (explaining that “‘[t]he extent of
cross-examination is a strategic and tactical decision’” (citation
omitted)). Counsel’s performance was not deficient in this respect,
12 and Appellant cannot prevail on this claim.
Appellant similarly argues that his trial counsel should have
cross-examined Gaskins about the possible prison sentence he faced
in connection with his charge of making false statements to the
police during his interviews about the murder. See OCGA § 16-10-
20 (establishing a sentence of one to five years in prison for making
a false statement). As with his claim related to King, Appellant has
not shown that Gaskins had a plea deal with the State in exchange
for his testimony, so he cannot demonstrate that the trial court
would have allowed Appellant’s counsel to question Gaskins about
the possible sentence he faced if convicted of the pending charge. See
Flannigan, 305 Ga. at 61-62.
In addition, trial counsel’s decision not to question Gaskins
about his possible sentence was reasonable, because the bulk of his
testimony was favorable to Appellant. See Gibson v. State, 272 Ga.
801, 804 (537 SE2d 72) (2000) (concluding that trial counsel did not
perform deficiently by failing to object to testimony that benefitted
the defense). On cross-examination, counsel emphasized that during
13 Gaskins’s first three police interviews, he did not implicate
Appellant in the murder. Only during the fourth interview did
Gaskins assert that Appellant had said that he shot Kenyatta, and
counsel elicited Gaskins’s testimony that his fourth interview
statement was not true and that he accused Appellant only because
the police threatened Gaskins and his sister with criminal charges.
Counsel also questioned Gaskins about the false statements charge,
and Gaskins testified that the police charged him with that crime
because of a mere “discrepancy,” as Gaskins told them in one
interview that he and Appellant left the apartment around the same
time as Kenyatta but claimed in a later interview that he and
Appellant left about 30 minutes later. Trial counsel’s decision not to
undermine testimony that largely benefitted Appellant with
questions that the trial court could have disallowed was an entirely
reasonable strategy. Thus, Appellant has not shown that his counsel
performed deficiently with regard to this claim either.
(b) Appellant next contends that his trial counsel provided
ineffective assistance by failing to object to testimony from the lead
14 detective on the case about Appellant’s flight from the police. After
the State presented evidence that Appellant was arrested at an
apartment complex in Auburn, Alabama nearly six months after the
murder, the prosecutor asked the detective if “evidence of flight in
homicide cases” is “significant in investigations.” The detective
answered yes, and when the prosecutor asked why, he replied,
“Usually when a suspect is trying to avoid prosecution.”
Appellant concedes in his brief that evidence of a defendant’s
flight from the police is “generally admissible as circumstantial
evidence of guilt.” Rowland v. State, 306 Ga. 59, 65 n.4 (829 SE2d
81) (2019). He argues, however, that his trial counsel should have
objected to the detective’s testimony because it was improper for a
witness to tell the jury that flight indicates guilt. But Appellant’s
counsel did not perform deficiently by deciding not to object, even if
an objection might have been made and sustained.
To begin with, neither the prosecutor’s questions nor the
detective’s answers spoke in terms of guilt. Instead, the detective
simply expressed the truism that evidence of a homicide defendant’s
15 “flight” usually indicates that he is “trying to avoid prosecution.” But
even if “trying to avoid prosecution” is understood as implying
consciousness of guilt, “‘any rational juror would have guessed that
(the detective) believed as much without being told.’” Thompson v.
State, 304 Ga. 146, 153 (816 SE2d 646) (2018) (citation omitted).
Thus, the detective’s comment did not cause Appellant significant
prejudice. See id. (“‘[S]uch comments upon the patently obvious
generally pose little, if any, danger of prejudice.’” (citation omitted)).
Moreover, trial counsel’s decision not to object to these brief
and unremarkable comments was strategic. On cross-examination,
counsel elicited the detective’s admission that he did not know when
Appellant had moved to Alabama or if Appellant’s name was on the
lease for the apartment there. Counsel referenced the detective’s
earlier statement about flight to point out that Appellant could have
moved to Alabama on the day after the murder or shortly before he
was arrested almost six months later, and the detective then
acknowledged that he was not aware of any evidence, other than
Appellant’s being in Alabama when he was arrested, that showed he
16 fled rather than simply moved away. During closing argument,
Appellant’s counsel again emphasized that the evidence did not
show that Appellant fled.
Trial counsel’s decision not to object to the detective’s
testimony but rather to undermine it through cross-examination
and closing argument was reasonable. See Faust v. State, 302 Ga.
211, 219 (805 SE2d 826) (2017) (“Whether to object during direct
examination or instead rely on cross-examination ‘falls within the
ambit of reasonable trial strategy.’” (citation omitted)); Lupoe v.
State, 284 Ga. 576, 578 (669 SE2d 133) (2008) (concluding that trial
counsel’s decision not to object to a witness’s reading aloud from his
statement to the police was strategic, because during cross-
examination counsel used portions of the statement to undermine
the witness’s testimony). For these reasons, Appellant cannot
succeed on this ineffective assistance claim.
3. As mentioned in Division 1 above, Appellant argued at trial
that a neighborhood drug dealer, Derek White, could have
committed the murder after being told by Appellant that Kenyatta
17 planned to rob him. Appellant now contends that the trial court
erred by prohibiting him from impeaching White, who did not testify
at trial, with a certified copy of his 2007 conviction in New York for
second-degree criminal possession of a weapon. We disagree.
At trial, the lead detective testified that he interviewed White
after the murder and that White said that Kenyatta told White that
Appellant planned to rob and possibly kill White. (As discussed
above, Kenyatta’s girlfriend Alamonord testified that Appellant told
White that Kenyatta planned to rob and beat up White.) Appellant’s
counsel asked the trial court’s permission to impeach White’s out-of-
court statement to the detective with a certified copy of White’s prior
conviction. See OCGA § 24-8-806 (“When a hearsay statement has
been admitted in evidence, the credibility of the declarant may be
attacked and, if attacked, may be supported by any evidence which
would be admissible for those purposes if the declarant had testified
as a witness. . . .”); Hawkins v. State, 350 Ga. App. 862, 872-873 (830
SE2d 301) (2019). The court denied the request.
Assuming without deciding that the trial court’s exclusion of
18 the certified conviction was an abuse of discretion, it was harmless.
“‘The test for determining nonconstitutional harmless error is
whether it is highly probable that the error did not contribute to the
verdict.’” Winters v. State, 305 Ga. 226, 229 (824 SE2d 306) (2019)
(citation omitted). Appellant’s counsel was permitted to elicit the
detective’s testimony that during the interview with White, White
admitted serving five-and-a-half years in prison in New York on a
weapons charge, so showing the jury a copy of that conviction would
have been essentially cumulative. In addition, the detective testified
that White was a drug dealer; that he admitted being at the
apartment complex near the time of the murder; and that the
detective nevertheless failed to investigate him as a suspect. Under
these circumstances, it is highly probable that the outcome of the
trial would not have been different if the trial court had admitted
the copy of White’s conviction. See, e.g., id. (concluding that any
error in the trial court’s failure to admit a section of a GBI report to
impeach a witness’s credibility was harmless, given other evidence
that “placed the question of her credibility . . . squarely before the
19 jury without the need for [the excluded evidence]”).
Judgment affirmed. All the Justices concur.
DECIDED JANUARY 27, 2020. Murder. DeKalb Superior Court. Before Judge Flake. Zell & Zell, Rodney S. Zell, for appellant. Sherry Boston, District Attorney, Emily K. Richardson, Deborah D. Wellborn, Vincent J. Faucette, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
20 Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.