321 Ga. 151 FINAL COPY
S24A1101. RYALS v. THE STATE.
BOGGS, Chief Justice.
Appellant Charvez Ryals appeals from his convictions for
malice murder and other crimes in connection with the beating and
fatal shooting of Daniel Wise.1 Appellant contends that trial counsel
1 The crimes occurred on March 10, 2018. On June 7, 2018, a DeKalb
County grand jury indicted Appellant for malice murder; two counts of felony murder (based on aggravated assault and possession of a firearm by a convicted felon); two counts of aggravated assault against Wise, one for assaulting him with a deadly weapon and one for striking him with a handgun; one count of aggravated assault against Robbie Johnson; one count of aggravated assault against Ka. W.; one count of aggravated assault against Ke. W.; two counts of cruelty to children in the second degree; four counts of possession of a firearm during the commission of a felony; and possession of a firearm by a convicted felon. At a trial from October 24 to October 31, 2019, a jury found Appellant guilty on all counts of the indictment. On November 4, 2019, the trial court sentenced Appellant to serve life in prison for malice murder, to 20 concurrent years in prison for the count of aggravated assault against Wise predicated on striking him with a handgun, to concurrent terms of 20 years in prison for the aggravated assaults of Johnson, Ka. W., and Ke. W., to concurrent terms of ten years in prison for both counts of cruelty to children, and to consecutive terms of five years in prison for each of the five firearm offenses. The felony murder counts were vacated by operation of law, and the trial court merged one of the aggravated assaults of Wise for purposes of sentencing. Appellant filed a timely motion for new trial, which he amended with new counsel on February 2, 2022. On March 18, 2024, the trial court denied the motion for new trial, as amended. Appellant filed a timely notice of appeal, and the case was docketed to this Court’s August 2024 term and submitted for a decision on the briefs. provided constitutionally ineffective assistance by failing to
subpoena a witness, by failing to investigate and procure phone
records, by failing to introduce the criminal history of Wise and
Robbie Johnson, who was a victim who testified at trial, and by
failing to request a jury charge on voluntary manslaughter. For the
reasons set forth below, we conclude that these claims of ineffective
assistance fail. Accordingly, we affirm.
At the time of the crimes, which occurred shortly before noon
on March 10, 2018, Regina Welch and Appellant lived in an
apartment on Chupp Road in DeKalb County. They had been dating
about a year and a half and had one child together. Before her
relationship with Appellant, Regina had dated Wise for 13 years.
They had three children together, Ka. W., Ke. W., and D. W. The
three siblings primarily lived with Wise or his mother, and Wise
would drive them to Regina’s apartment for weekend visits, as
Regina did not have a car. Regina described her relationship with
Wise as a “violent” one. In addition to her testimony of Wise’s
violence toward her on the night of the crimes, she testified that,
2 during an earlier incident at which Appellant was present, Wise had
first “smushed [her] face” and then “grazed [her] face.” Regina added
that Wise had also previously threatened to “shoot [her] house up.”
Regina added that Appellant was aware of the “prior violence.”2
On the night before the murder, Regina and Appellant were at
home, while Ka. W. and Ke. W. stayed at the home of Regina’s
mother, Pamela Benton. Wise came by Regina’s home about 3:00
a.m., and Regina and Appellant went outside to ask Wise what he
was doing there. Wise said that he was there because Regina owed
him some money based on tax credits related to their three children.
In response, Regina said that she did not owe Wise any money, and
the confrontation escalated, which led to Wise “punch[ing]” Regina
in the face. Appellant then told Wise not to “put [his] hands” on
Regina, and Appellant and Wise began fighting each other.
Neighbors heard the fight and came outside and broke it up. Wise,
however, refused to leave for about an hour, and after he did, he
2 The trial court limited evidence about Wise’s violence toward Regina to
the time frame in which Regina and Appellant were dating. 3 called Appellant about 5:00 that same morning, and Regina recorded
the call.
Later that morning, Regina drove to a nearby Chevron gas
station where she met her mother, Benton, who was bringing Ka. W.
and Ke. W. back to Regina’s home. From the gas station, Regina,
with Benton following, drove to see Appellant, who was visiting
someone at an apartment complex that was across Chupp Road from
Appellant’s apartment. Regina spoke with Appellant, who told her
that Wise was parked in front of her apartment. According to
Regina, Appellant was angry because Wise “had been threatening
him all morning,” starting with the phone call at 5:00 a.m.
Regina told Appellant to stay at the neighboring apartment
complex, and she, her mother, and her children drove to her
apartment, where Wise and his co-worker, Robbie Johnson, were
waiting. Once Regina parked, Wise approached her car and was
“cussing and stuff.” Regina told Wise to leave, but he did not do so
and put both of the children in the back seat of his car. According to
Regina, Wise was “talking all this smack” and said that he was there
4 “to see that . . . dude of yours dead.” Wise went to talk to Regina’s
mother; Regina got out of her car and began talking to Johnson, who
was sitting in the front passenger seat of Wise’s Suburban and had
a gun in his lap.
At this point, Appellant arrived on the scene using a path from
the neighboring apartment complex. Regina saw him walk “around
the front of [her] mom’s car.” Appellant, who was holding a black
gun, told Wise that he had told Wise “to stay . . . away from [his]
family.” Wise “lifted up his shirt and showed his gun,” and Appellant
“hit [Wise] with [his] gun” “[i]n the side of the head.” Wise then tried
“to go for [Appellant’s] gun again” and Appellant hit him again.
According to Regina, Wise kept coming at Appellant, and Appellant
stepped back and shot Wise, firing “[m]ore than five” shots.
Although Regina testified that Wise “pull[ed] his shirt up,” she
added that he never had his gun in his hands; it was in the waist of
his pants. Johnson then tried to get out of Wise’s Suburban and
“shoot at [Appellant],” but Appellant saw him and shot him in the
back. After the shooting stopped, Appellant went through the path
5 toward the neighboring apartment complex. Regina reiterated that
Wise did not pull a gun on anyone that morning and did not hit her.
Several other witnesses also testified about the shooting.
Contrary to Regina’s testimony, Johnson testified that neither he
nor Wise had a gun during the incident. He added that, when Regina
and Benton arrived with the children, Regina began arguing with
Wise, who was calm, about a disagreement that had occurred the
night before between Regina, Appellant, and Wise. Shortly after the
children got out of Regina’s car and sat in the back seat of Wise’s
Suburban,3 Appellant arrived at the scene and said to Wise, “Didn’t
I tell you not to come back over here.” Appellant, who had a black
handgun, hit Wise with the gun. Appellant and Wise “tussl[ed] with
the gun in the air.” According to Johnson, Appellant, who was taller
than Wise, was shooting down at Wise and fired “a lot” of shots. At
one point, Wise fell to the ground, and Appellant turned his
attention to Johnson, who had stayed in the passenger seat of Wise’s
3 D. W. had spent the night at a friend’s house and was not present at
the time of the crimes. 6 Suburban. Appellant asked Johnson if he was with Wise and fired
“about three” shots toward the Suburban, which was occupied by Ka.
W. and Ke. W. in addition to Johnson. Johnson was struck in the
back by one of the shots. Johnson looked toward Appellant and saw
him run through the path toward the neighboring apartment
complex. Johnson and the children got out of the Suburban. Despite
being shot during the altercation, Wise was able to get back in his
Suburban and attempt to drive away from the scene. Wise did not
make it far, however, crashing into a street sign a short distance
from where he was shot. Johnson went to check on Wise and saw
that he was bleeding from his chest and head. Johnson added that
Wise did not have a gun during the altercation and did not ever
“raise his arms” like he was getting ready to fire a gun. Johnson
testified that he fled the scene because he had an outstanding
warrant against him, although he could not remember what it was
for. Wise died from his injuries.
According to Benton, when Appellant arrived at the scene,
Wise and Appellant “exchanged words” and Appellant pulled out a
7 black gun. Appellant walked toward Wise, hit him with the gun, and
“then . . . shot,” firing “six to eight shots.” Benton got out of her truck
and yelled “there [are] children over here, stop shooting.” Benton
saw Appellant and another man run through “a cut to an apartment”
complex. Benton never saw Wise with a gun.
Two other witnesses who were in the area saw the shooting
from farther away. One saw the shooting from the back patio of her
apartment, from where she could see the driveway of Regina and
Appellant’s apartment. She heard a gunshot and “looked over” to the
driveway. She added that there “was like about six gunshots” and
that she saw Wise get shot by a man carrying a black gun. She added
that she did not see Wise with a gun. The second witness saw a man
walking fast toward Appellant’s apartment. He was carrying a black
gun and “just went over there and just unloaded, shooting.” From
his position, the witness could not see who was shot.
Appellant testified in his own defense at trial. He testified that
he had seen Wise pull a gun on Regina before the crimes at issue in
this case. The first time was in September 2017. He explained, that,
8 during that incident, Regina and Wise had been arguing and that
Wise drove his SUV to Regina and Appellant’s apartment, got out,
pulled “a gun out of his back pocket,” walked up to Regina, and
started “cussing her out,” while “poking her in her face.” Appellant
added that there were “other incidents [of] arguing and fussing
going on.”
According to Appellant, on the night of March 9 to 10, 2018, he
and Regina were “relax[ing]” about 1:30 to 2:00 a.m. when they saw
Wise park his Suburban near their apartment. Wise began “creeping
around” Appellant and Regina’s car, and Regina screamed, “get
away from my car” and ran out the door. Appellant went outside,
and Wise was “cussing [Regina] out” and was arguing with Regina
“about stupid stuff.” Appellant asked Wise why he was “creep[ing]
around [Appellant’s] house this time of night.” Wise told Appellant
that “this ain’t got nothing to do with you” and that he did not give
an “F about [Appellant’s] house.” Wise, who was intoxicated, kept
“going on” and was talking about how he wanted $3,000. Appellant
testified that “there was a lot of arguing”; that Wise kept “putting
9 his hand in [Regina’s] face”; and that he eventually “punched her”
and “pushed her head back.” Wise kept demanding money and told
Appellant that he was “going to kill [Appellant]” and that “the police
[would] never find [him].” Wise eventually left but called Appellant
later that night. Regina recorded that call, and it was played for the
jury. During that call, Wise “kept going on” about what had just
happened and how he wanted more money from Regina. Appellant
told Wise that he did not want any trouble, but Wise said that “he
was going to pull up and put one in [Appellant’s] face.” Appellant
testified that Wise called him again about 9:00 a.m. on March 10,
saying he wanted his money and “[d]on’t make me have to pull up
on y’all.” Appellant told Wise to stop calling him, that he did not owe
Wise any money and did not have $3,000.
Later that morning, when Appellant arrived at his apartment
to find Wise there, arguing with Regina, Appellant asked Wise to
leave, and the two men started “getting up on each other.” Wise then
lifted his shirt and “grabbed the handle of his gun.” Appellant, at the
same time, pulled his gun out of his back pocket. The two men were
10 “in each other’s face,” and Appellant “backed away” and hit Wise in
the head “with the side of [his] weapon.” Appellant knocked Wise
down, but Wise “stared and looked at [him]”; “got back up”; and came
at Appellant. Appellant then “fired in the ground” but Wise “never
stopped, he kept coming at [Appellant].” According to Appellant, as
Wise was coming toward him, he had his gun “in his hand coming in
a forward motion.” Appellant fired two shots into the ground and
then “blanked” and kept firing. Appellant added that he “had no
intention of hurting [Wise], but just trying to prevent him from
hurting me. I was going low, and I was leaning back. And as he kept
coming, you know, it kept going.”
1. Appellant contends that trial counsel provided
constitutionally ineffective assistance by failing to subpoena
Regina’s father, Reginald Welch, as a witness; by failing to procure
text messages from Appellant’s cell phone; by failing to introduce
evidence of Wise’s and Johnson’s criminal histories; and by failing
to request a jury instruction on voluntary manslaughter. We
conclude that these claims of ineffective assistance fail.
11 To establish that his trial counsel was constitutionally
ineffective, Appellant must prove both deficient performance by his
counsel and resulting prejudice. See Strickland v. Washington, 466
U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To establish
deficient performance, Appellant must show that his attorney’s acts
or omissions were “objectively unreasonable . . . considering all the
circumstances and in the light of prevailing professional norms.”
Davis v. State, 299 Ga. 180, 182-183 (787 SE2d 221) (2016). The law
recognizes a “strong presumption” that counsel performed
reasonably, and the defendant bears the burden of overcoming this
presumption. Strickland, 466 U.S. at 689. To carry this burden,
Appellant must show that “no reasonable lawyer would have done
what his lawyer did, or would have failed to do what his lawyer did
not.” Washington v. State, 313 Ga. 771, 773 (873 SE2d 132) (2022)
(cleaned up). To establish the required prejudice, Appellant must
show that but for his attorney’s deficient performance, there is a
reasonable probability that the result of the proceeding would have
been different. See Davis, 299 Ga. at 183. “A reasonable probability
12 is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. “This burden, though not impossible to
carry, is a heavy one.” Ellis v. State, 292 Ga. 276, 283 (736 SE2d 412)
(2013).
(a) Appellant first claims trial counsel was ineffective in failing
to subpoena Regina’s father, Reginald Welch, as a witness.
Appellant contends that Reginald would have testified at trial, as he
did at the motion for new trial hearing, that on the morning of the
crimes, Wise called him several times and threatened to harm
Appellant and Regina.
We conclude, however, that, under the circumstances, counsel
reasonably believed that Reginald would testify without a subpoena.
As for not subpoenaing Reginald, trial counsel testified at the motion
for new trial hearing as follows: “He was a friendly witness. He was
my client’s girlfriend’s father. He had always been cooperative with
us. He had always said he would come. We asked him if he needed a
subpoena to get off work. He said he did not, so we did not serve
him.” Moreover, the evidence at the motion for new trial hearing
13 shows that Reginald voluntarily came to court to testify but left the
courthouse without informing anyone because he had hurt his foot
and was in pain. Here, Reginald was a “friendly,” “cooperative”
witness who assured trial counsel that he would voluntarily come to
testify. Although a subpoena would have guaranteed that Reginald
would have stayed in the courtroom, counsel could reasonably have
decided that the chance of his not showing up was not worth the risk
of antagonizing him by putting him under a court order. That
decision was not so unreasonable that no competent attorney would
have made it. See Jernigan v. State, 357 Ga. App. 415, 431 (848 SE2d
707) (2020) (holding that trial counsel’s decision not to subpoena a
witness “was reasonable because [the witness] willingly agreed to
testify on [the defendant’s] behalf without one and counsel had no
reason to believe otherwise”); Carruth v. Commr., Alabama Dept. of
Corrections, 93 F4th 1338, 1361 (11th Cir. 2024) (ruling that counsel
did not perform deficiently in failing to subpoena witnesses who
were part of the defendant’s family because “there was nothing to
14 indicate to counsel that subpoenas were needed because they had
voluntarily agreed to attend”).4
(b) Appellant contends that trial counsel was constitutionally
ineffective in failing to obtain his cell phone so that text messages
on it from Wise to Appellant on the morning of the crimes could have
been introduced into evidence.5 We conclude, however, that
Appellant has failed to establish prejudice on this claim.
At one of the hearings on his motion for new trial, Appellant
testified that, between the 3:00 a.m. altercation and time of the
crimes, Wise sent him threatening text messages. He specified that,
in one of those messages, sent at 11:52 a.m., Wise texted him that
he was “gonna smoke [Appellant]” and “kill [him].” Appellant also
testified that he informed trial counsel of these messages, that his
4 Appellant does not contend on appeal that trial counsel was deficient
in failing to obtain Reginald’s testimony once he left the courthouse.
5 Appellant’s contention regarding counsel’s investigation into his cell
phone is confusing. Because Appellant never offered any evidence that the phone calls from Wise to him about which he testified on motion for new trial were recorded on his phone and does not contend on appeal that recordings of those calls exist, we construe his argument to be that counsel was deficient in failing to introduce evidence of the content of text messages from his phone. 15 phone was inside his house, that he told counsel that his phone was
in his house, and that he “kept explaining to her to get [his] phone,
but she never did get [it].”
At another motion for new trial hearing, appellate counsel
asked trial counsel whether the phone records of Appellant would
have contained any relevant “text messages” between Appellant and
the victim. Trial counsel responded that it would have been
necessary to have Appellant’s cell phone to access the text messages.
Appellate counsel, however, never asked trial counsel whether she
ever had access to Appellant’s phone or whether Appellant
requested that she go to his home and attempt to locate his phone.
We assume without deciding that trial counsel was deficient
and conclude that Appellant has failed to carry his burden to show
prejudice. As noted above, to satisfy the prejudice prong, Appellant
must establish that but for his attorney’s deficient performance,
there is a reasonable probability that the result of the proceeding
would have been different. See Davis, 299 Ga. at 183. “This burden,
though not impossible to carry, is a heavy one.” Ellis, 292 Ga. at 283.
16 Additionally, when we are assessing “prejudice from counsel’s
deficient performance, we review the record de novo, and we weigh
the evidence as we would expect reasonable jurors to have weighed
the evidence.” Sharkey v. State, 320 Ga. 477, 483 (910 SE2d 216)
(2024) (cleaned up).
As an initial matter, Appellant did not produce the cell phone
or text messages at the motion for new trial hearings. The burden is
on a defendant to show prejudice on his ineffective assistance claim,
see Davis, 299 Ga. at 183; Ellis, 292 Ga. at 283, and when a
defendant claims that trial counsel was deficient in failing to
introduce evidence, part of his burden in demonstrating prejudice is
to establish what that missing evidence would have shown. See
Pauldo v. State, 317 Ga. 433, 437 (893 SE2d 633) (2023) (“It is well
established that a defendant fails to establish prejudice under
Strickland when he merely contends that trial counsel was deficient
for failing to present an expert, without also presenting evidence at
the motion-for-new-trial hearing about what the potential expert
would have testified to at trial.”); Thorpe v. State, 304 Ga. 266, 268
17 (818 SE2d 547) (2018) (explaining that “it was [the defendant’s]
burden to show deficient performance and prejudice through
‘competent evidence’” on his ineffective assistance claim).
Moreover, even assuming that the text messages were just as
Appellant claimed in his testimony, they were largely cumulative of
other testimony. First, Regina, in particular, testified in detail about
the confrontation the night before the murder and that, starting
with the phone call to Appellant about 5:00 a.m. on March 10 and
continuing through the morning, Wise “ha[d] been threatening”
Appellant. The jury also heard the phone call that Wise made to
Appellant at 5:00 that morning. In addition, Appellant testified that
Wise had threatened to kill him both during the 3:00 a.m.
altercation and during phone calls at 5:00 and 9:00 that morning.
And one neighbor of Appellant’s testified that, about 3:00 a.m. on
March 10, he heard Wise threaten Appellant and Regina. Consistent
with the evidence of these threats to Appellant, Regina testified that
Wise told her shortly before the shooting that Wise was there “to see
that . . . dude of yours dead.”
18 Finally, to the extent that Appellant argues that the missing
text messages showed even more explicitly that Wise had recently
threatened to kill him, it is unlikely that that extra piece of
information would have made a difference in the trial, given the
testimony of several witnesses that Appellant was the primary
aggressor in the fatal confrontation and the agreement among most
witnesses that Wise was not armed. As recounted above, four
eyewitnesses, Sarah Freeman, Richard Stephens, Robbie Johnson,
and Pamela Benton (Regina’s mother) testified that they did not see
Wise with a gun, significantly undermining Appellant’s testimony
that Wise was carrying a handgun “in his hand coming in a forward
motion” when Appellant shot him. Also contradicting Appellant’s
claim regarding Wise’s use of a gun was that law enforcement
officials did not find a firearm in front of Appellant’s apartment
where the shooting occurred or by Wise’s Suburban. And Regina
testified that Wise did not have a firearm in his hands at the time of
the shooting, contradicting Appellant’s testimony that Wise was
approaching Appellant with his firearm “in his hand” just before
19 Appellant shot him. In addition, Stephens described Appellant as
walking fast toward Wise and “just unload[ing]” his gun, and
Johnson added that he heard Appellant say to Wise, “Didn’t I tell
you not to come back over here” and that Appellant then hit Wise
with his handgun and shot him multiple times. In this same vein,
Benton described seeing Appellant pull out a black gun, walk toward
Wise, hit him with the gun, and then fire “six to eight shots” into
Wise.
Because Appellant failed to introduce the cell phone or text
messages at the motion for new trial hearings, because the text
messages would have been largely cumulative of other properly
admitted evidence, and because the evidence against Appellant was
strong, we conclude that Appellant has failed to carry his heavy
burden of establishing that there is a reasonable probability that the
result of the proceeding would have been different except for
counsel’s alleged deficiency. See Pauldo, 317 Ga. at 437 (holding that
the defendant failed to show prejudice on his claim that counsel was
ineffective in failing to introduce expert testimony because the
20 defendant did not present evidence at the hearing on his motion for
new trial regarding what that expert testimony would have been);
Sharkey, 320 Ga. at 483 (holding that appellant failed to establish
prejudice on his claim that trial counsel was ineffective in failing to
have certain evidence admitted, in part, based on the strength of the
evidence against appellant); Walker v. State, 301 Ga. 482, 491 (801
SE2d 804) (2017) (holding that appellant failed to establish
prejudice on his claim that trial counsel was ineffective in failing to
subpoena his brother to testify about appellant’s fear of the victim
in part because appellant and his father testified on this point); Ivey
v. State, 305 Ga. 156, 162-163 (824 SE2d 242) (2019) (concluding
that defense counsel’s failure to present the victim’s toxicology
report did not prejudice the defendant in part because the report
“would have been cumulative of other evidence introduced at trial”).
(c) Appellant next contends that counsel was constitutionally
ineffective by failing to introduce evidence of Wise’s and Johnson’s
criminal histories. We conclude that this claim fails.
21 In his amended motion for new trial, Appellant alleged that
Wise had a conviction for domestic violence battery arising from an
assault on Regina and that Johnson had a “prior criminal history”
and admitted that he left the scene of the crime because, at that
time, there was an outstanding warrant for his arrest. Appellant
alleged that trial counsel was deficient in failing to introduce records
of Wise’s and Johnson’s criminal histories or to cross-examine
Regina about Wise’s conviction and Johnson about his own. At a
motion for new trial hearing, Appellant introduced into evidence a
certified copy of Wise’s misdemeanor conviction for family violence
battery against Regina.6 Appellant did not introduce evidence of
Johnson’s criminal history at the motion for new trial hearings and
did not question trial counsel about the warrant against Johnson
that was outstanding at the time of the crimes.
(i) With regard to Appellant’s claim that trial counsel was
6 The copy of that conviction is not part of the record on appeal. See
Tedder v. State, 320 Ga. 29, 41 n.12 (907 SE2d 623) (2024) (explaining that “[a]s a general matter, the appellant bears the burden of ensuring that the appellate record is complete”). 22 ineffective in failing to introduce Wise’s conviction for domestic
violence battery or to cross-examine Regina about it, he has failed to
show that this prior conviction would have been admissible at trial
or that it would have been permissible to cross-examine Regina
about Wise’s conviction. First, to the extent that Appellant is
contending that Wise’s conviction shows that Wise had a violent
character that was relevant to Appellant’s self-defense claim,
Appellant could only prove this character trait “by reputation and
opinion testimony,” and not by use of Wise’s prior conviction. See
Ward v. State, 318 Ga. 884, 902 (901 SE2d 189) (2024) (cleaned up).
Moreover, although “we have held that specific instances of a
victim’s past conduct may also be admitted, not to show the victim’s
action in conformity therewith, but rather to establish the
defendant’s state of mind and the reasonableness of the defendant’s
use of force,” we have also held that “because such evidence is offered
as proof of the defendant’s state of mind at the time of the charged
crime, it is only admissible if there is proof that the defendant
actually knew about the victim’s prior acts at that time.” Ward, 318
23 Ga. at 902 (cleaned up). Accord Copeland v. State, 316 Ga. 452, 459
(888 SE2d 517) (2023) (explaining that evidence of a victim’s prior
conviction “would only have been admissible—and even then, only
potentially—to show [the defendant’s] state of mind at the time of
the shooting and the reasonableness of his use of force. And it could
have been admissible for that purpose only upon a showing that [the
defendant] actually knew about the past crimes at the time of the
shooting”).
Here, Regina described prior violence committed by Wise
against her and added that Appellant was aware of “the prior
violence.” We need not decide whether her testimony was sufficient
to satisfy the admissibility requirements for Wise’s prior conviction,
because even assuming that it was, and even assuming that trial
counsel was deficient in failing to use Wise’s conviction at trial,
Appellant has failed to establish prejudice on this claim. To begin,
we know that Wise’s misdemeanor conviction was for domestic
violence against Regina, but Regina and Appellant testified about
domestic violence committed by Wise against Regina. Regina
24 testified that on the night of March 9 to 10, Wise “punched [her] in
[her] face,” and that, during earlier incidents, Wise had “smushed
[her] face,” “grazed [her] face,” and threatened to “shoot [her] house
up.” Appellant also testified that he previously had seen Wise “pull[
] a gun out of his back pocket,” walk up to Regina, and start “cussing
her out,” while “poking her in her face.” Because evidence of a
misdemeanor domestic violence conviction would have been
cumulative of other evidence of domestic violence introduced at trial
and because, as explained in Division 1 (b) above, the evidence
against Appellant was strong, we conclude that Appellant has failed
to establish that but for counsel’s assumed deficiency, the result of
the trial would have been different. See Sharkey, 320 Ga. at 483;
Ivey, 305 Ga. at 162-163.
(ii) As for the warrant that existed against Johnson at the time
of the crimes, Appellant appears to argue that trial counsel was
ineffective in failing to cross-examine Johnson about any bias that
Johnson might have had in testifying for the State arising from that
warrant. However, Appellant failed to introduce any evidence at the
25 hearings on the motion for new trial about the charges and
circumstances that led to the issuance of the warrant against
Johnson or any evidence regarding whether that warrant was still
outstanding at the time of trial. Appellant therefore offers nothing
more than speculation that cross-examination regarding the
warrant would have shown Johnson’s bias in testifying. See Sauder
v. State, 318 Ga. 791, 812 (901 SE2d 124) (2024) (holding that
counsel did not perform deficiently in failing to cross-examine a
witness about bias in testifying for the State where the evidence
showed that the charge in question was no longer pending at the
time of trial); Monroe v. State, 315 Ga. 767, 783 (884 SE2d 906)
(2023) (rejecting claim that trial counsel was ineffective in not
exploring a witness’s deal with the State where the defendant did
not introduce evidence on motion for new trial to support his claim
that deal existed, explaining that “mere speculation will not support
a claim of ineffective assistance of counsel” (cleaned up)). See also
Moore v. State, 315 Ga. 263, 269 (882 SE2d 227) (2022) (explaining
that “[t]he scope of an attorney’s cross-examination is grounded in
26 trial tactics and strategy, and will rarely constitute ineffective
assistance of counsel” (cleaned up)).
Similarly, Appellant also failed to show that Johnson had any
prior convictions or that, if he did, they would have been admissible
under OCGA § 24-6-609 for impeachment purposes. For these
reasons, Appellant has failed to show that trial counsel performed
deficiently in failing to introduce evidence regarding those alleged
convictions. See Monroe, 315 Ga. at 783-784 (rejecting claim that
counsel was ineffective in failing to impeach a witness with prior
convictions where the defendant failed to put forward any evidence
on motion for new trial that the witness had any prior convictions);
Wofford v. State, 305 Ga. 694, 697 (827 SE2d 652) (2019) (holding
that trial counsel was not deficient in failing to impeach witnesses
with prior convictions where the defendant at the hearing on motion
for new trial failed to offer evidence of any prior convictions as to one
witness and failed to show that certain prior convictions of another
witness would have been admissible under OCGA § 24-6-609).
(d) Appellant contends that trial counsel was ineffective by
27 failing to request a charge on voluntary manslaughter. We conclude
that this claim has no merit.
At a motion for new trial hearing, trial counsel testified that
she was “certain” that she had discussed whether to request a
voluntary manslaughter charge with Appellant and that it was “an
intentional and strategic decision” not to request the charge because
“[w]e were trying for not guilty.” On cross-examination, counsel
reiterated that she did not request a charge on voluntary
manslaughter “[b]ecause it would have given the jury the option to
compromise and give [Appellant] a significant amount of time in a
case where we were arguing for self-defense.” Appellant, on the
other hand, testified at one of the hearings on the motion for new
trial that trial counsel never discussed the possibility of requesting
a voluntary manslaughter charge with him and that such a charge
should have been one of his defenses. In denying Appellant’s motion
for new trial, the trial court found that trial counsel’s testimony was
more credible than Appellant’s regarding whether counsel had
discussed with Appellant the decision not to request a voluntary
28 manslaughter charge. The court also concluded that counsel’s
decision was a matter of trial strategy.
Here, the record shows that counsel and the defendant
discussed the all-or-nothing strategy of pursuing only a claim of self-
defense, with counsel testifying that “[w]e were trying for not
guilty.” That strategy was reasonable under the circumstances of
this case, as the claim of self-defense was supported by some
evidence at trial. Appellant, for example, testified that, during the
altercation that led to Wise’s death, Wise pulled his gun out of his
back pocket, came at Appellant with his gun “in his hand coming in
a forward motion,” and Appellant shot Wise “to prevent him from
hurting me.” Counsel’s decision not to request a voluntary
manslaughter charge, which would have undermined the all-or-
nothing defense, was not patently unreasonable. See Rosenbaum v.
State, 320 Ga. 5, 12 (907 SE2d 593) (2024) (holding that trial
“counsel’s choice to rely solely on the defense of accident, and not to
request a jury charge on justification, was not so patently
unreasonable that no competent attorney would have made that
29 choice”). Although Appellant contends that trial counsel failed to
consult with him about whether to pursue a voluntary manslaughter
charge, the trial court found that trial counsel did consult with
Appellant about that matter, and that finding is not clearly
erroneous. See Powell v. State, 309 Ga. 523, 526-527 (847 SE2d 338)
(2020) (explaining that we “accept[ ] a trial court’s factual findings
and credibility determinations on an ineffectiveness claim unless
they are clearly erroneous”). For these reasons, Appellant’s claim of
ineffective assistance of counsel fails.
2. Appellant contends that the cumulative effect of trial
counsel’s four instances of allegedly deficient performance affected
the outcome of the trial. See Schofield v. Holsey, 281 Ga. 809, 811
n.1 (642 SE2d 56) (2007), overruled on other grounds by State v.
Lane, 308 Ga. 10, 23 (838 SE2d 808) (2020). In Division 1, we
assumed two instances of the deficient performance of counsel and
held that Appellant failed to establish that either assumed instance
of deficient performance prejudiced his defense. Appellant also has
not shown that these two assumed deficiencies, considered together,
30 created a reasonable probability that the results of the proceeding
would have been different in their absence. Accordingly, his claim of
cumulative prejudice fails. See Vendrel v. State, 318 Ga. 233, 244
(897 SE2d 751) (2024).
Judgment affirmed. All the Justices concur.
Decided March 4, 2025.
Murder. DeKalb Superior Court. Before Judge Parker-Smith.
Matthew K. Winchester, for appellant.
Sherry Boston, District Attorney, Deborah D. Wellborn, Thomas
L. Williams, Leyna P. Pope, Assistant District Attorneys; Christopher
M. Carr, Attorney General, Beth A. Burton, Deputy Attorney General,
Meghan H. Hill, Clint C. Malcolm, Senior Assistant Attorneys
General, M. Catherine Norman, for appellee.