308 Ga. 375 FINAL COPY
S19A1341. SAWYER v. THE STATE.
BETHEL, Justice.
In July 2016, a jury found Devin Sawyer guilty of felony
murder and other crimes in connection with the death of Michael
Weeks, Jr.1 Sawyer appeals, contending that his trial counsel’s
assistance was ineffective because counsel (1) did not object to a
1 The crimes occurred on November 24, 2012. On February 19, 2013,
Sawyer was indicted by a DeKalb County grand jury for (1) malice murder; (2) felony murder predicated on aggravated assault; (3) cruelty to children in the first degree; (4) aggravated assault based on strikes to the torso; (5) aggravated assault based on strikes to the head; (6) aggravated battery based on rendering the heart useless; (7) aggravated battery based on rendering the pancreas useless; and (8) aggravated battery based on rendering the liver useless. At a jury trial held in July 2016, Sawyer was found guilty of felony murder (Count 2), cruelty to children in the first degree (Count 3), aggravated assault (Count 4), and all three counts of aggravated battery. Sawyer was found not guilty of malice murder (Count 1) and aggravated assault (Count 5). Sawyer was sentenced to life imprisonment for felony murder and a consecutive sentence of 20 years for cruelty to children in the first degree. The trial court merged the aggravated assault (Count 4) and aggravated battery counts (Counts 6-8) into the felony murder count. Sawyer filed a motion for new trial on July 20, 2016, and amended it through new counsel on August 6, 2018. After a hearing, the trial court denied the motion for new trial, as amended, on March 25, 2019. Sawyer then filed a timely notice of appeal, and the case was docketed in this Court for the August 2019 term and submitted for a decision on the briefs. witness’ purported comments on Sawyer’s credibility; (2) did not
object to testimony that allegedly placed Sawyer’s character into
evidence; and (3) did not object to hearsay testimony involving
statements made by Weeks’ mother. Because we determine that
Sawyer’s counsel did not render ineffective assistance to Sawyer, we
affirm.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed that the victim, Weeks, was born
on May 13, 2010. Danielle Calhoun, Weeks’ mother, met Sawyer in
2011 and began a relationship with him. In 2012, Calhoun, Weeks,
and Sawyer began living together.
While they were living together, Sawyer was “physical” toward
Calhoun on one occasion, and Calhoun called the police regarding
this incident. Calhoun’s friend, Monica Fitzpatrick, encouraged
Calhoun to leave Sawyer, but Calhoun said that they loved each
other and continued living with him. On another occasion,
Fitzpatrick noticed a scratch on Weeks’ face and asked Calhoun
about it. Calhoun told Fitzpatrick that Sawyer said that Weeks, who was around two years old, had been riding on the back of a four-
wheeler and had hit his face on poison ivy.
In June 2012, Calhoun told Sawyer that she wanted to end the
relationship. In response, Sawyer cut Calhoun with a knife, dropped
an item on her foot, and took her cell phone. With her arm bleeding,
Calhoun ran outside screaming, prompting her neighbors to call 911.
After this incident, Calhoun and Sawyer broke up, but reunited
about a month later.
A short time later, during an argument between Calhoun and
Sawyer about Sawyer’s mother, Sawyer took Calhoun’s cell phone
and wallet, began strangling and punching her, and started to break
items in their shared apartment. Sawyer also pushed Weeks and
punched a hole in the wall, with his fist passing close to Calhoun’s
face. The dispute then moved downstairs, and Sawyer began
strangling Calhoun again in front of Weeks. Calhoun began to lose
consciousness and could not resist anymore, and asked Sawyer to let
her go. Once Sawyer let her go, Calhoun ran to a neighbor’s house
and called the police. Two of the apartment complex’s maintenance workers came to
Calhoun and Sawyer’s apartment immediately following this
incident. They observed a great deal of damage to the apartment,
including damaged doors, broken glass, and holes in the wall, and
that the apartment was in disarray. Sawyer was asked to leave by
the employees. Sawyer and Calhoun broke up again after this
incident, and Calhoun was later evicted from that apartment
complex. Calhoun then moved to a different apartment, and she and
Sawyer reunited again.
Around two weeks before Weeks’ death, Calhoun noticed
suspicious bruises on Weeks, including a bruise on his head. When
she asked Sawyer what happened, Sawyer said that he accidentally
closed a door on Weeks’ head. Fitzpatrick testified that she asked
Calhoun about this mark, and Calhoun told her that Sawyer said
that Weeks had walked into a door. Fitzpatrick told Calhoun that it
did not look like Weeks had walked into a door. A few days later,
Fitzpatrick noticed bruises on Weeks’ inner thigh and mentioned it
to Calhoun. When Calhoun confronted Sawyer, Sawyer said that Weeks got bruised while he was playing with him upside down, and
that he did not mean to bruise Weeks. Calhoun told Sawyer to be
careful and that he was playing too roughly with Weeks.
On November 23, 2012, Calhoun and Sawyer argued about
Calhoun going to Chicago so that Weeks could see his biological
father, who had recently reentered Weeks’ life. Sawyer did not want
Calhoun to go to Chicago, but Calhoun told Sawyer that he could not
stop Weeks from seeing his father.
The next morning, Calhoun made Weeks a bowl of cereal before
bringing him to the park outside of their apartment. According to
Calhoun, Weeks did not appear to be sick or hurt that morning.
While Calhoun and Weeks were at the park, Calhoun called
Fitzpatrick and asked her to come pick Calhoun up later that
afternoon. Around noon, after Calhoun and Weeks returned from
the park, Calhoun took two pictures of herself with Weeks. Calhoun
testified that Weeks had not injured himself at the park when they
were together and had no injuries on his face. Sawyer had gone to
the store, and Calhoun was waiting for Fitzpatrick to pick her up from the apartment. Between 1:20 and 1:30 p.m., Fitzpatrick and
her boyfriend arrived to pick Calhoun up. As Fitzpatrick drove into
the apartment complex, she saw Sawyer walking, and he raised his
middle finger at her. Fitzpatrick waited in the car and did not go
into the apartment. As Calhoun left, Weeks was crying, and Calhoun
told him that she would be back and that she loved him. Calhoun
asked Sawyer to come get Weeks so she could leave.
Fitzpatrick testified that Calhoun’s demeanor was normal and
that Calhoun did not seem upset after leaving Weeks with Sawyer.
Calhoun and Fitzpatrick went to a restaurant, then to Calhoun’s old
apartment to check the mailbox, and then to Fitzpatrick’s
apartment. Between 3:50 and 4:00 p.m., about 30 minutes after they
got to Fitzpatrick’s apartment, Calhoun received a call from a
hospital notifying her that Weeks was there. Fitzpatrick testified
that after Calhoun answered the phone, Calhoun’s face went gray
and she said, “I have to get out of here.” Fitzpatrick and her
boyfriend drove Calhoun to the hospital.
Calhoun testified that when she arrived at the hospital, no one would tell her what was going on, and nurses took her into a small
room where Sawyer was sitting. When the doctor came in and told
Calhoun that Weeks had come in unresponsive, Calhoun asked the
doctor what he was saying, and he told her that Weeks had died.
Calhoun asked Sawyer several times what was going on, but Sawyer
did not look at or say anything to her, and just kept his head down
and rocked back and forth. Calhoun initially looked as though she
was going to faint, but then collected herself and tried to attack
Sawyer, shouting that he killed her baby. Sawyer did not respond.
A social worker at the hospital testified that, because Weeks
had been brought to the hospital in cardiac arrest and was not
breathing, protocol required her to speak to the family of the patient
and to try to find out as much information as possible about what
happened. Sawyer had arrived at the hospital with Weeks and said
that he was Weeks’ father. The social worker took Sawyer to the
family room and tried to figure out what happened. Sawyer was
unclear about what happened, and he said that Weeks was running
around and getting on his nerves. Weeks then “just stopped and fell to the floor and went to sleep.” Sawyer said that Weeks did this all
the time, and that he was not very concerned about it when it
happened. Sawyer was unable to identify about what time this
happened. Sawyer said that after Weeks “fell out,” he picked Weeks
up, noticed that Weeks was breathing, and took Weeks into the
bedroom, where they both lay down in the bed. Sawyer was not able
to provide a time for this either. The social worker testified that she
had never had a parent tell her that he or she had noticed their child
breathing, and she found this comment to be awkward and
unsolicited. Sawyer said that when he woke up beside Weeks in the
bed, Weeks was not breathing. The social worker described Sawyer
as being angry and irritated with her for asking a lot of questions,
and she described Sawyer as not very forthcoming with his answers.
Sawyer also refused to provide Calhoun’s phone number, although
the social worker eventually obtained it after contacting Sawyer’s
mother at his direction.
The lead detective on the case testified that he spoke with
Calhoun at the hospital, and that Calhoun said that she left Weeks with Sawyer, and that when she left her apartment, Weeks was
perfectly fine and had no marks or bruises. Calhoun showed the
detective one of the photos that she had taken of Weeks before she
left, which showed nothing unusual about Weeks’ appearance.
Calhoun told the detective that she knew that Sawyer killed Weeks.
A neighbor testified that in the early afternoon on the day
Weeks died, Sawyer came to her apartment crying and holding
Weeks. Sawyer asked the neighbor’s mother to call an ambulance,
which she did. The neighbor testified that Sawyer never said that
anything had happened to Weeks, that Weeks looked like an “old
man” and had bags under his eyes, and that Weeks was not
breathing. The neighbor’s mother told Sawyer that Weeks was dead.
The paramedic that arrived on the scene observed Sawyer
performing CPR on Weeks. Weeks was unresponsive and did not
have a pulse. The paramedics continued CPR in the ambulance until
arriving at the hospital. However, they never found a pulse, Weeks
remained unresponsive in the ambulance, and Weeks’ extremities
were cool to the touch. Sawyer told the paramedic that Weeks was playing like he always did and fell asleep on the floor. Sawyer then
said that when he picked Weeks up and went to get a drink from the
kitchen, he noticed that Weeks was not breathing and had vomit
coming out of his mouth. Sawyer denied causing any trauma to
Weeks and “denied [Weeks] having medical history.”
A forensic death investigator for the DeKalb County medical
examiner’s office was called to the scene to investigate Weeks’
injuries. The investigator testified that before going to the scene, he
went to the hospital, where he had an opportunity to observe
Calhoun. Calhoun showed the investigator one of the photos she had
taken that morning of herself and Weeks. In the photo, the right side
of Weeks’ jaw appeared uninjured, but when the investigator
examined Weeks on the hospital table, he clearly had an injury to
the right side of his jaw. The investigator then went to the
apartment, where he observed some vomit on the carpet between the
living room and the kitchen, as well as on a T-shirt.
Sawyer met with a police officer in an interview room at the
hospital. Sawyer told the officer that Weeks had been playing in the living room. He said that he then laid Weeks down for a nap, and
lay down in the bed with him. When Sawyer woke up, he noticed
that Weeks was not breathing and was very still, so he took Weeks
to the upstairs neighbors. The neighbors noticed that Weeks was
cold. Sawyer then went back downstairs and called 911. The officer
testified that when he spoke with Sawyer, Sawyer was nervous, but
he was not crying. The officer also spoke with Calhoun, who told him
that there was a mark on Weeks’ face that was not there when she
left the house. She also told the officer that Sawyer had closed a
door on Weeks’ head a week before this incident.
Later that same day, the lead detective interviewed Sawyer at
police headquarters after giving Sawyer Miranda warnings.2
Sawyer told the detective that Weeks was upset after Calhoun left
the apartment, but eventually he calmed down and began to play.
Sawyer said that he fed Weeks some cereal after Calhoun left.
Sawyer told the detective that Weeks had gotten quiet after playing
2 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
(1966). in the living room, and that he was a little alarmed that Weeks was
no longer playing and that he could no longer hear Weeks. Sawyer
said that he went into the living room and saw Weeks asleep on the
floor, and that when he picked Weeks up, he saw a mark on his chin.
Sawyer told the detective that he took Weeks into the bedroom and
lay down with him.
Later in the interview with the detective, Sawyer said that
when he woke up, he tried to wake Weeks up by grabbing and
slapping his chin, which caused the mark. Still later in the
interview, Sawyer told the detective that when he woke up, he saw
that Weeks already had a mark on his chin, and then he attempted
to wake Weeks. Sawyer initially told the detective that Weeks’ chest
injury was the result of Sawyer performing CPR on Weeks, but he
later said that it was the result of him squeezing and shaking Weeks
in an attempt to wake him up. Sawyer stated twice that Weeks was
afraid of him. At one point during the interview, the detective told
Sawyer that Calhoun had said that he had hit Weeks. Sawyer did
not confirm or deny this, but denied killing Weeks. At trial, prosecutors presented testimony from Dr. Jonathan
Eisenstat and Dr. Michael Greenwald, two expert witnesses who
examined Weeks. Dr. Eisenstat, the Chief Medical Examiner for the
GBI, was admitted as an expert in autopsies and forensic pathology.
Dr. Eisenstat, who performed the autopsy on Weeks, testified that
the cause of Weeks’ death was blunt impact injury to the torso, that
Weeks’ injuries were not survivable, and that it is not possible for a
child with no medical history to be playing one day and then “fall
out” without there having been some force to the torso. He testified
that Weeks had at least 23 scars from prior injuries — more scars
than he usually expects to see on a two-year-old child — as well as
lacerations of the heart, liver, pancreas, vena cava, and right
adrenal gland, and contusions to the thymus, liver, right side of the
diaphragm, and left lung. These injuries resulted in bleeding into
the space around Weeks’ heart and in his stomach.
Dr. Eisenstat testified that Weeks also had bruising on the left
side of his chest, but that any bruising that would have been the
result of someone performing CPR typically would have been in the center of Weeks’ chest, and that the abrasion on the right side of
Weeks’ chin did not appear to have been caused by someone using
his hand to wake Weeks up. He further testified that Weeks’ injuries
to his pancreas, liver and heart could have been caused by someone
“stomping” on a child while the child was lying on his back.
Dr. Greenwald, an emergency room doctor at the hospital who
examined Weeks on the date he died, was admitted as an expert in
pediatric emergency medicine. He testified that when Weeks arrived
at the hospital, his pupils were dilated, fixed, and did not respond to
light; that his extremities were cold; that there was a bruise on the
right side of his chin; and that he had no pulse. Weeks arrived in the
examination room at 4:02 p.m., and Dr. Greenwald pronounced him
dead at 4:16 p.m. Dr. Greenwald testified that, based on his
experience, a considerable amount of force is needed to lacerate a
two-and-a-half-year-old child’s heart, and it is extremely unlikely
that CPR done incorrectly would cause fractures of a rib, let alone
injuries to the heart or the lungs.
Although Sawyer has not challenged the sufficiency of the evidence, it is our customary practice to review the sufficiency of the
evidence in murder cases, and we have done so here. After reviewing
the record of Sawyer’s trial, we conclude that the evidence presented
against him was more than sufficient to authorize a rational jury to
find beyond a reasonable doubt that Sawyer was guilty of the crimes
of which he was convicted. See Jackson v. Virginia, 443 U. S. 307,
318-319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v.
State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“It was for the jury to
determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.” (citation and
punctuation omitted.)).
2. Sawyer contends that he received ineffective assistance of
trial counsel because counsel (a) did not object to the lead detective’s
purported comments on Sawyer’s credibility; (b) did not object to
Calhoun’s testimony that allegedly placed Sawyer’s character into
evidence; and (c) did not object to hearsay testimony involving
statements that Calhoun made to Fitzpatrick and the detective.
“To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant.” Swanson v. State, 306 Ga. 153, 155 (2) (829 SE2d
312) (2019) (citing Strickland v. Washington, 466 U. S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984)). To satisfy the deficiency prong,
a defendant must show that trial counsel “performed at trial in an
objectively unreasonable way considering all the circumstances and
in the light of prevailing professional norms.” Romer v. State, 293
Ga. 339, 344 (3) (745 SE2d 637) (2013). “This requires a defendant
to overcome the strong presumption that trial counsel’s performance
was adequate.” (Citation and punctuation omitted.) Swanson, 306
Ga. at 155 (2). “[A] fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time.” (Citation and punctuation omitted.) Stripling v. State, 304
Ga. 131, 138 (3) (b) (816 SE2d 663) (2018). “[R]easonable decisions
as to whether to raise a specific objection are ordinarily matters of trial strategy and provide no ground for reversal[.]” (Citation and
punctuation omitted.) Morris v. State, 303 Ga. 192, 201 (VI) (811
SE2d 321) (2018).
A defendant “must also show that the deficient performance
prejudiced the defense, which requires showing that counsel’s errors
were so serious that they likely affected the outcome of the trial.”
(Citation and punctuation omitted.) Brown v. State, 307 Ga. 24, 33
(6) (834 SE2d 40) (2019). “Satisfaction of this test is a difficult
endeavor. Simply because a defendant has shown that [his] trial
counsel performed deficiently does not lead to an automatic
conclusion that [he] was prejudiced by counsel’s deficient
performance.” (Citation and punctuation omitted.) Id. “[T]he burden
of proving a denial of effective assistance of counsel is a heavy one,”
Brown v. State, 302 Ga. 454, 457-458 (2) (807 SE2d 369) (2017)
(citation and punctuation omitted), and because a defendant must
satisfy both prongs, this Court does not need to “approach the
inquiry in the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U. S. at 697 (IV); see also Jones v. State, 305 Ga.
750, 755 (4) (827 SE2d 879) (2019).
(a) Sawyer first argues that he received ineffective assistance
of trial counsel because counsel did not object to the lead detective’s
purported comments on Sawyer’s credibility. We disagree.
On direct examination, the detective testified that Sawyer’s
explanation as to how Weeks got the injuries to his chin and to his
chest were “inconsistent.” As a preliminary matter, Sawyer argues
that under OCGA § 24-6-620, the detective could not comment on
the credibility of Sawyer’s statement. See OCGA § 24-6-620 (“The
credibility of a witness shall be a matter to be determined by the
trier of fact, and if the case is being heard by a jury, the court shall
give the jury proper instructions as to the credibility of a witness.”
(emphasis supplied)). Our cases interpreting former OCGA § 24-9-
80, OCGA § 24-6-620’s predecessor statute,3 indicate that the former
3 OCGA § 24-6-620’s predecessor statute, OCGA § 24-9-80, was carried
forward to the current Evidence Code with only minor revisions, and because there is no materially identical Federal Rule of Evidence on this matter, our precedent interpreting OCGA § 24-9-80 still applies in interpreting OCGA § 24-6-620. See Grant v. State, 305 Ga. 170, 177 n.4 (824 SE2d 255) (2019). statute applied to defendants who testified on their own behalf at
trial and so became witnesses. See McIlwain v. State, 264 Ga. 382,
383 (3) (445 SE2d 261) (1994) (“The credibility of a defendant who
testifies in his own behalf is for the jury, which may consider his
demeanor and conduct on the witness stand.” (emphasis supplied))
(citing Brantley v. State, 190 Ga. App. 642, 643-644 (2) (379 SE2d
627) (1989)); Brantley, 190 Ga. App. at 643-644 (2) (“The credibility
of all witnesses, including the defendant who testifies in his own
behalf, is for the jury under proper instructions from [the] court.
OCGA §§ 24-9-80; 24-9-20 (a).” (emphasis supplied)); Walker v.
State, 132 Ga. App. 274, 278 (5) (208 SE2d 5) (1974) (“When the
accused does so testify he at once becomes the same as any other
witness, and his credibility is to be tested by and subjected to the
same tests as are legally applied to any other witness; and in
determining the degree of credibility that shall be accorded to his
testimony the jury have a right to take into consideration the fact
that he is interested in the result of the prosecution, as well as his
demeanor and conduct upon the witness stand.” (citation and punctuation omitted)).
Sawyer has cited no authority for the proposition that OCGA §
24-6-620 applies where a defendant does not testify at trial and is
therefore not a witness, and we have found nothing to support that
argument. See Marshall v. State, 276 Ga. 854, 856 (2) (c) (583 SE2d
884) (2003) (applying former OCGA § 24-9-80 to detective’s
testimony as to whether co-defendant’s statement was inconsistent
with evidence, though no mention of whether co-defendant testified
at trial); Griffin v. State, 267 Ga. 586, 587 (2) (481 SE2d 223) (1997)
(applying former OCGA § 24-9-80 to detective’s testimony that
defendant was not telling the truth, though no mention of whether
defendant testified at trial). See also Frei v. State, 252 Ga. App. 535,
538 (4) (557 SE2d 49) (2001) (applying former OCGA § 24-9-80 to
defense counsel’s question to defendant’s wife about “whether she
would believe her husband if he were to testify under oath,” though
the opinion does not specify whether defendant testified at trial).
Therefore, trial counsel’s failure to raise a novel legal argument does
not constitute ineffective assistance of counsel. See Jordan v. State, 307 Ga. 450, 456 (3) (836 SE2d 86) (2019); see also Hughes v. State,
266 Ga. App. 652, 655 (3) (a) (598 SE2d 43) (2004) (“[T]he standard
for effectiveness of counsel does not require a lawyer to anticipate
changes in the law or pursue novel theories of defense.” (citation and
punctuation omitted)).
Moreover, even if Sawyer were a witness, the detective’s
comments did not directly address Sawyer’s credibility and were not
improper. See Davis v. State, 306 Ga. 140, 147 (3) (f) (829 SE2d 321)
(2019) (no deficient performance where trial counsel failed to object
to detective’s testimony that a witness’s account of the crime was
consistent with his investigation, because such testimony “did not
speak directly to [the witness’s] truthfulness.” (citation and
punctuation omitted)); see also Harris v. State, 304 Ga. 652, 657 (2)
(c) (821 SE2d 346) (2018) (“Viewed in context, [the detective’s]
testimony was not a direct comment on [the witness’s] veracity.”).
Any objection would therefore be meritless, and “[t]he failure to
make a meritless objection is not deficient performance.” Walker v.
State, 306 Ga. 637, 645 (2) (b) (832 SE2d 783) (2019). Because Sawyer has not shown that his counsel performed deficiently by
failing to raise this objection, this claim of ineffective assistance
fails.
(b) Second, Sawyer argues that he received ineffective
assistance from trial counsel because counsel did not object to
testimony that allegedly placed Sawyer’s character into evidence.
On cross-examination, Sawyer’s trial counsel asked Calhoun, “But
you didn’t know what the cause of death was, did you?” Calhoun
replied, “The doctor told me he came in unresponsive and he didn’t
make it, and I knew what [Sawyer] was capable of. He used to hurt
me all the time.” We disagree that counsel performed deficiently by
failing to object to this statement.
In general,
“[e]vidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion[.]” OCGA § 24-4-404 (a). Likewise, absent an exception, “[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith . . . .” OCGA § 24-4-404 (b).
Wade v. State, 304 Ga. 5, 10 (3) (815 SE2d 875) (2018). However, pretermitting whether Calhoun’s testimony was improper character
evidence that should have been excluded under Rule 404 (a),
Calhoun’s statement was harmless because it was cumulative of a
significant volume of evidence already presented to the jury without
objection regarding the long history of violence between Sawyer and
Calhoun, and “[t]rial counsel was not deficient in failing to object to
the cumulative testimony of [the witness]” on this matter. Koonce v.
State, 305 Ga. 671, 676 (2) (d) (827 SE2d 633) (2019). This claim of
ineffective assistance therefore fails.
(c) Finally, Sawyer argues that he received ineffective
assistance from trial counsel because counsel did not object to
hearsay testimony involving statements that (1) Calhoun made to
Fitzpatrick and (2) Calhoun made to the lead detective. We disagree.
An out-of-court statement made by a witness is not hearsay if
the witness “testifies at the time of trial or hearing, is subject to
cross-examination concerning the statement, and the statement is
admissible as a prior consistent statement under Code Section 24-6-
613[.]” OCGA § 24-8-801 (d) (1) (A). In relevant part, OCGA § 24-6- 613 (c) states:
A prior consistent statement shall be admissible to rehabilitate a witness if the prior consistent statement logically rebuts an attack made on the witness’s credibility. A general attack on a witness’s credibility with evidence offered under Code Section 24-6-608 [evidence of character and conduct of witness] or 24-6-609 [impeachment by evidence of conviction of a crime] shall not permit rehabilitation under this subsection. If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose.
First, Calhoun’s statements to Fitzpatrick were admissible as
prior consistent statements. During cross-examination of Calhoun,
Sawyer’s trial counsel clearly implied that Calhoun fabricated the
story of her argument with Sawyer the night before Weeks’ death.
Trial counsel questioned Calhoun about her phone call with Weeks’
father and Sawyer’s reaction to the phone call, asking whether
Calhoun “[was] lying then or . . . lying now” about her argument with
Sawyer the evening before Weeks’ death. Later, during Fitzpatrick’s
testimony, the State asked Fitzpatrick about her conversations with Calhoun on the morning of Weeks’ death.4 Fitzpatrick’s testimony
that Calhoun told her about the fight with Sawyer before Weeks’
death rebutted the attack made by trial counsel on Calhoun’s
credibility, and Fitzpatrick’s statements were therefore “prior
consistent statements, not hearsay, and were admissible to
rehabilitate, rather than improperly bolster, [Calhoun’s]
credibility.” Brown, 302 Ga. at 459 (2) (a).
Second, trial counsel’s decision not to object to Calhoun’s
statements to the detective about Weeks’ lack of injuries in her
photograph was reasonable. Throughout his cross-examination of
Calhoun, trial counsel continued to attack Calhoun’s credibility,
asserting that Calhoun “told the detective [that Sawyer] had never
done anything to [Weeks]. In fact, [Sawyer] treated [Weeks] like
[Weeks] was his own son.” Trial counsel also questioned Calhoun
about her claim that Weeks did not have any injuries to his face prior
4 In response to the State’s question whether Calhoun had “ever [told]
you about an argument that she and [Sawyer] had gotten into the night before?” Fitzpatrick testified that Calhoun “thought that the child’s father was getting in contact with them, that [Sawyer] was angry about that.” to his death, asking whether Weeks received a bruise on his face on
November 22, two days prior to Weeks’ death.
At the hearing on the motion for a new trial, Sawyer’s trial
counsel testified that it was a strategic decision to not object when
the lead detective testified that Calhoun claimed that Weeks had no
injuries to his face the morning of his death5 because he wanted to
“use[ ] that testimony to show once again that Danielle Calhoun had
lied about there not being any injuries on [Weeks],” and that the
detective’s “testimony was, in fact, helpful . . . because the mother of
Q: While at the hospital on November 24th, did you speak with Ms. Danielle Calhoun? A: Yes, ma’am, I did. Q: What was her demeanor when you spoke with her? A: She was upset. Q: What did she tell you? A: Ms. Calhoun told me that she had left her two-year-old son, Michael Weeks, with her boyfriend, Devin Sawyer. She stated that when she left her residence and left the child with Mr. Sawyer, [Weeks] was perfectly fine, he had no marks or bruises on his person. She also said she took a photograph of the child victim before she left. Q: Did Ms. Danielle Calhoun show you the photograph that she took before she left? A: Yes, she did. She showed me a photo that she had in her cell phone. She also made a statement that she knows that Devin Sawyer killed her baby. the child said that there were no injuries when the photograph
clearly shows that there was a scratch mark on the child’s face from
one point to another.” Although later testimony may have
undermined the effectiveness of trial counsel’s argument about what
the photograph clearly showed,6 “hindsight has no place in an
assessment of the performance of trial counsel.” (Citation and
punctuation omitted.) Hills v. State, 306 Ga. 800, 807 (3) (a) (833
SE2d 515) (2019). Trial counsel’s decision not to object to the
detective’s testimony was not an unreasonable strategy in light of
trial counsel’s overarching defense strategy to discredit Calhoun. In
light of trial counsel’s testimony, “trial counsel’s decision to use [the
detective’s] testimony in support of a defense strategy — and not to
object to it on hearsay grounds — was not so patently unreasonable
6 During trial counsel’s cross-examination of Dr. Eisenstat, which occurred after the detective’s testimony, Dr. Eisenstat was asked about State’s Exhibit 41, an autopsy photo of Weeks’ face, in which a light scar is visible on Weeks’ right cheek. Trial counsel asked Dr. Eisenstat whether that scar would be visible in a photograph taken of Weeks on the same morning. Dr. Eisenstat agreed that it would be visible if that part of Weeks’ face was in the photograph. When shown the photo taken of Weeks and Calhoun on the morning of Weeks’ death, Dr. Eisenstat stated that the photo was “grainy” and that he did “see a line that’s pale on the side, but [he had] to be honest, [he] can’t tell [trial counsel] if that is a scar or not.” that no competent attorney would have chosen to forgo an objection
to this testimony.” (Citation and punctuation omitted.) Chavers v.
State, 304 Ga. 887, 895 (4) (823 SE2d 283) (2019).
Third, as for the detective’s testimony regarding Calhoun’s
statements “that she knows that Devin Sawyer killed her baby,” at
the hearing on the motion for new trial, trial counsel was not asked
about whether he considered objecting to this piece of the detective’s
testimony. In any event, this testimony was cumulative of properly
admitted evidence already presented to the jury regarding Calhoun
accusing Sawyer of killing Weeks, as both the paramedic and the
social worker had already testified to Calhoun accusing Sawyer of
killing Weeks when she found out Weeks was deceased, and
Sawyer’s subsequent reaction to Calhoun’s accusation. Accordingly,
“[t]rial counsel was not deficient in failing to object to the cumulative
testimony of [the witness]” on this matter. Koonce, 305 Ga. at 676
(2) (d). This claim of ineffective assistance therefore fails.
Judgment affirmed. All the Justices concur. DECIDED FEBRUARY 28, 2020 -- RECONSIDERATION DISMISSED MARCH 25, 2020. Murder. DeKalb Superior Court. Before Judge Seeliger. Daniel H. Petrey, for appellant. Sherry Boston, District Attorney, Emily K. Richardson, Elizabeth H. Brock, Destiny H. Bryant, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.