NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: September 16, 2025
S25A0566. SPRAYBERRY v. MORRIS.
PETERSON, Chief Justice.
More than fifteen years ago, a jury found Edward Morris guilty
of murder, aggravated assault, criminal street gang activity, and
related offenses in connection with incidents involving two victims,
Randy Griffin and Lacey Magee. After we affirmed his convictions,
see Morris v. State, 294 Ga. 45 (2013), Morris filed a habeas corpus
petition asserting that his trial counsel and appellate counsel were
constitutionally ineffective in a host of ways. The habeas court
granted relief on all but one of Morris’s claims, and Warden Kevin
Sprayberry appeals from that ruling. As discussed in more detail
below, we reverse; the habeas court erred as to each ground on which
it granted relief. One claim remains unresolved by the habeas court, so we remand for further consideration as to that claim.
1. The underlying proceedings
(a) The trial evidence
Morris was tried jointly with several co-defendants, including
Carlos Drennon. We affirmed Morris’s convictions, 1 describing the
evidence from the trial as follows:
Morris was a member of the “International Robbing Club” or “IRC,” a loosely affiliated group of friends and associates who planned and executed so-called “licks,” robberies of individuals believed to possess significant amounts of cash, drugs, jewelry, and other high value items. In May 2007, IRC members targeted Griffin, a jewelry merchant who regularly wore flashy jewelry. In the early hours of May 22, 2007, Morris and various co- indictees followed Griffin as he was driving home from a night club, intending to rob him. When Griffin and Magee, his girlfriend, pulled into Griffin’s driveway and exited their cars, shots were fired at them from a gold Toyota Avalon occupied by Morris and co-defendants Carlos Drennon, Maurice Hargrove, and Vincent Morris. Magee was shot in the hand, and Griffin returned fire. The Avalon drove off, with both Drennon and Vincent Morris having been shot.
Morris, 294 Ga. at 46.
1 We also previously resolved Drennon’s appeal, rejecting most of his
claims but remanding for record development on his right-to-be-present claim. See Drennon v. State, 314 Ga. 854, 855 (2022). 2 Meanwhile, another car containing fellow IRC members
Marciell Easterling, Daquan Stevens, and Jonathon Collins had
followed the Toyota Avalon and parked on a road nearby. See
Drennon v. State, 314 Ga. 854, 856 (2022).
After they heard the gunfire in the complex, they saw a person run across the road. Unsure of who it was, Easterling, who was driving the car, drove forward. The person was Griffin, and he ran up to Easterling’s car. Collins told Griffin to get in, and he did. Panicked and unaware that the occupants of the car were part of the group trying to rob him, Griffin told the people in the car that someone had tried to rob him and had shot his girlfriend. Griffin had a gun in his hand. According to Easterling, the car’s occupants were also carrying guns, but they were on the floor of the car, so there “wasn’t no way that we could reach for our gun to do anything to him.” About that time — which was only about 30 seconds later — the Avalon in which the other members of the group were riding “skidded out of the parking lot” of Griffin’s complex. Griffin got out of the car Easterling was driving and started shooting at the Avalon; he then ran back toward his condominium.
Id. Tiffany Bankston, who had been dating Drennon, testified that
Easterling and Stevens told her that on the day Griffin was robbed,
“someone had ‘jumped out too fast’ that night, implying that the
group driving with Easterling might have killed Griffin that night if
3 they had the chance.” Id. at 857. “Following the incident, Magee and
Drennon were treated for their injuries at the same hospital, and
Griffin, who had accompanied Magee to the hospital, identified
Drennon as one of their assailants, leading to Drennon’s arrest.”
After his arrest, Drennon had several recorded phone
conversations with his IRC associates about trying to locate Griffin.
Drennon, 314 Ga. at 857–58. In one conversation, Drennon asked
Easterling if “everything straight” and if they had “seen ol’ girl,”
referring to Griffin. Id. at 858. Easterling responded that they had
not seen “ol’ girl” because “she had moved.” Id. In another
conversation between Drennon and Hargrove, they discussed how
that “ho” got in the back of the car with Easterling, Drennon was
“sweatin’ that ho,” Drennon was relying on Hargrove to “lay that ho
out for me,” and Hargrove promised to “f**k the s**t out that ho.”
Id. In another conversation, Drennon told Stevens that he had been
“watching the motherf**king news” and nothing was happening,
imploring Stevens to “go get that girl, man, … hurry up.” Id. In a
4 conversation with Morris, Drennon talked about the person who had
jumped in the car and had identified him in the robbery (i.e.,
Griffin), and Morris said he would have “slapped” that person and
agreed with Drennon that “all of that” could have been stopped when
the person was in the car. Id.
Easterling testified that IRC members, including Morris, had
planned Griffin’s murder to retaliate for Drennon’s arrest. Morris,
294 Ga. at 46–47. Specifically, Easterling testified that the day after
the robbery of Griffin, Morris had spotted Griffin’s vehicle outside a
store and called Easterling. Easterling met Morris at Morris’s house,
along with Hargrove and Stevens. They all traveled together with
guns to the store where Morris had spotted Griffin’s vehicle with the
intent to kill Griffin. When they arrived, Griffin could not be found.
“[I]n the early morning hours of June 10, 2007, Griffin was shot
and killed outside Club 112, a Midtown nightclub.” Morris, 294 Ga.
at 46. Easterling testified that the day after the shooting, Morris
recounted how he and others drove to Club 112 on the night of the
murder and waited for Griffin to emerge, at which point Hargrove
5 and Collins fired at Griffin. See id. at 47.
Morris’[s] presence at the scene of the murder was corroborated by cell tower triangulation evidence placing Morris’ cell phone at the crime scene at the time of the shooting. In addition, a former girlfriend of Morris[, Shani Monique Tennyson,] told police that Morris had told her he had been present when Griffin was killed and that Hargrove had been the triggerman.
Id.
Easterling testified that after he learned of Griffin’s murder,
he informed Bankston and told her to let Drennon know. Drennon,
314 Ga. at 857. Bankston confirmed that she learned of Griffin’s
death from Easterling and later told Drennon that her “Auntie
Monique” had killed her husband last night and that “she” did it at
Club 112, “which was code that Hargrove shot Randy Griffin.” Id. at
857, 859. Drennon later talked to Hargrove, who confirmed that the
“n***** f**ked the s**t out of that ho, man.” Id. at 859.
Easterling also implicated the IRC in several crimes in addition to those involving Griffin. These crimes included a September 2006 attack on, kidnapping of, and burglary of the home of victim Gary Lester. Lester, who had previously had dealings with Morris and other IRC associates, corroborated Easterling’s account and identified Morris as a participant in his abduction.
6 ...
The State also presented Detective David Quinn, who testified about information he received regarding various IRC-perpetrated crimes from Drennon, who had been acting as an informant prior to his arrest for the attempted armed robbery of Griffin. In addition, the State called Sergeant A.C. Lyda, a DeKalb County police officer, who testified as an expert regarding the general activities and culture of criminal street gangs.
Morris, 294 Ga. at 47.
Based on this evidence, the jury found Morris guilty on nine
charges, and the trial court sentenced Morris to life in prison for the
malice murder of Griffin in June 2007, ten years consecutive for the
attempted armed robbery of Griffin in May 2007, 20 years
concurrent for the aggravated assault of Griffin in May 2007, 20
years consecutive for the aggravated assault of Magee, five years
consecutive for firearm possession during commission of the
aggravated assaults, and 15 years consecutive for criminal street
gang activity, all to be served in prison. See Morris, 294 Ga. at 46
n.1. The jury found Morris not guilty on the other firearms count,
and the remaining charges were vacated by operation of law or
7 merged for sentencing purposes. See id.
Morris filed a motion for new trial though trial counsel, but it
was withdrawn. Morris, 294 Ga. at 46 n.1. Trial counsel filed a notice
of appeal on August 16, 2012, and once the case was docketed in this
Court, moved to withdraw as the attorney of record. This Court
denied trial counsel’s motion to withdraw and ordered counsel to file
a brief, which he did on May 24, 2013. After trial counsel filed that
brief, Morris obtained new counsel (“appellate counsel”), who filed a
motion to remand, generally asserting that it was necessary to
preserve Morris’s rights. In his motion and in filings in support of
that motion, appellate counsel did not argue that a remand was
necessary because Morris wished to raise ineffectiveness claims
against trial counsel. The State opposed the motion because Morris
did not indicate that he wished to assert these claims. This Court
denied the motion to remand, but allowed appellate counsel to file a
substitute brief. That substitute brief did not assert any claims that
trial counsel was ineffective.
We affirmed Morris’s convictions and, in the process, sua
8 sponte reviewed the sufficiency of the evidence and determined that
the evidence was sufficient. Morris, 294 Ga. at 46, 48.
(b) Habeas proceedings
In 2017, Morris filed the habeas petition in this case, raising
multiple claims of ineffective assistance of trial and appellate
counsel. Morris alleged his trial counsel was ineffective for: failing
to ensure his presence at bench conferences during voir dire and
“during trial”; failing to consult with or call a defense expert in cell
tower analysis; failing to interview or call Collins as a witness; and
waiving Morris’s motion for a new trial without his consent. Morris
asserted that appellate counsel was ineffective in handling Morris’s
appeal by: failing to raise a claim that this Court’s refusal to remand
the case was erroneous; failing to raise claims that trial counsel was
ineffective on various grounds; failing to argue that the evidence was
insufficient to support his convictions; failing to argue that the trial
court erred by denying bifurcation of the gang count; and failing to
raise a right-to-be-present claim. Following a hearing, the habeas
court granted relief on all of these grounds, and this appeal followed
9 2. General framework of our analysis
The Warden challenges the habeas court’s grant of relief on
each claim. We agree that the habeas court was wrong as to each
claim, so we reverse. Before addressing each of those grounds, we
set out the general framework that will guide our analysis.
“In reviewing the grant or denial of a petition for habeas
corpus, this Court accepts the habeas court’s factual findings and
credibility determinations unless they are clearly erroneous, but we
independently apply the law to the facts.” Dozier v. Watson, 305 Ga.
629, 629–30 (2019). A petitioner seeking habeas relief bears the
burden of establishing that his constitutional rights were violated.
See Ward v. Medina, 316 Ga. 345, 349 (2023).
In his habeas petition, Morris argued that appellate counsel
was ineffective for failing to raise certain claims on appeal, including
claims that trial counsel was ineffective; Morris also raised
independent claims that trial counsel was ineffective. The
independent claims that trial counsel was ineffective are
procedurally defaulted, however, because appellate counsel could
10 have raised these claims on appeal. 2 See, e.g., State v. Butler, 301
Ga. 814, 817–18 (2017) (ineffective assistance claims were barred
where the post-conviction attorney failed to raise the claims at the
first possible stage of post-conviction review); Hall v. Lewis, 286 Ga.
767, 769 (2010) (claims barred where counsel appointed to represent
the defendant in post-conviction proceeds could have raised the
ineffectiveness claims in the motion for new trial and on direct
appeal); White v. Kelso, 261 Ga. 32, 32 (1991) (because an
ineffectiveness claim may be raised for the first time in the direct
appeal if the direct appeal marks the first appearance of new
counsel, appellate counsel’s failure to raise the claim, either in a
motion for new trial or on direct appeal, waived the claim).
Morris can overcome this procedural default by showing that
appellate counsel was ineffective for failing to raise on appeal claims
of trial counsel’s ineffectiveness. See, e.g., Hall, 286 Ga. at 769
2 The habeas court did not resolve whether the independent claims against trial counsel were procedurally defaulted because it concluded that Morris could overcome any procedural default based on appellate counsel’s ineffectiveness. As discussed herein, this conclusion was wrong. 11 (establishing appellate counsel’s ineffectiveness in this context is
sufficient to meet “cause and prejudice” test applied to procedurally
defaulted claims). To establish that appellate counsel was ineffective
for failing to assert an error on appeal, whatever that claim might
be, “a habeas petitioner must show that his appellate counsel was
deficient in failing to raise an issue on appeal and that, if counsel
had raised that issue, there is a reasonable probability that the
outcome of the appeal would have been different.” Rozier v.
Caldwell, 300 Ga. 30, 31 (2016) (quotation marks omitted). Where
ineffectiveness of appellate counsel is premised on the failure to
assert ineffectiveness of trial counsel, demonstrating that the
outcome of the appeal would have been different necessarily
requires establishing trial counsel’s ineffectiveness. See Gramiak v.
Beasley, 304 Ga. 512, 513 (2018) (“[I]f [the defendant] cannot show
his trial counsel provided ineffective assistance of counsel, then [he]
also cannot show ineffective assistance of appellate counsel, because
an attorney is not deficient for failing to raise a meritless issue on
appeal.”).
12 Deficient performance is established if “the identified acts or
omissions were outside the wide range of professionally competent
assistance.” Bowen v. Noel, 313 Ga. 92, 96 (2022) (quoting Strickland
v. Washington, 466 U.S. 668, 690 (1984)). Establishing deficient
performance “is no easy showing, as the law recognizes a strong
presumption that counsel performed reasonably,” and to overcome
this presumption, Morris “must show that no reasonable lawyer
would have done what his lawyer did, or would have failed to do
what his lawyer did not.” Brown v. State, 302 Ga. 454, 457 (2017).
In evaluating appellate counsel’s performance, the question is not
whether counsel’s “decision not to raise a particular issue was
correct or wise, but rather whether his decision was an unreasonable
one which only an incompetent attorney would adopt.” Seabolt v.
Hall, 292 Ga. 311, 314 (2013) (cleaned up); see also Head v. Ferrell,
274 Ga. 399, 404 (2001) (“Appellate counsel does not render deficient
performance by selecting stronger claims for presentation on direct
appeal while setting aside weaker ones.”). The reasonableness of
appellate counsel’s conduct is assessed from the perspective of
13 counsel at the time of the appeal and under the specific
circumstances of the case. See Barker v. Barrow, 290 Ga. 711, 712
(2012).
With that framework, we consider whether appellate counsel
was ineffective in any of the ways alleged by Morris.
3. Appellate counsel was not ineffective with respect to Morris’s right-to-be-present claim, either as a direct claim or in the context of trial counsel’s ineffectiveness.
In his amended habeas petition, Morris argued that trial
counsel was ineffective for not allowing Morris to be present at nine
bench conferences during voir dire, failing to get his consent to
handle these bench conferences without Morris, and failing to
confirm that Morris acquiesced in not being present at the bench
conferences. As to appellate counsel, Morris alleged that counsel was
ineffective for not raising this matter on appeal. Although the
context suggests Morris was only asserting that trial counsel was
ineffective for counsel’s conduct with respect to the bench
conferences and that appellate counsel was ineffective for not
asserting trial counsel’s ineffectiveness, the habeas court construed
14 Morris’s petition as raising a claim that appellate counsel was
ineffective for failing to raise a direct claim on appeal that Morris’s
right to be present was violated. The habeas court granted relief on
all three grounds.3 But as discussed above, the independent claim of
trial counsel’s ineffectiveness is barred. And the habeas court erred
in concluding that appellate counsel was ineffective for failing to
raise trial counsel’s ineffectiveness or for failing to raise a direct
claim regarding Morris’s right to be present. We first address the
direct claim.
(a) Appellate counsel was not ineffective for failing to raise a claim on appeal that Morris’s right to be present was violated.
Morris asserted that he was excluded from several bench
conferences during voir dire, and that this exclusion violated his
right to be present under the United States and Georgia
Constitutions. But the habeas court did not make any determination
3 The habeas court noted that Morris was unclear as to whether appellate
counsel was ineffective in failing to raise the right-to-be present claim “directly or through the lens of trial counsel’s ineffectiveness,” but believed the outcome was the same regardless. 15 as to the federal claim, granting relief only based on the right under
the Georgia Constitution. 4 Our analysis here is limited to the state
right; the federal claim remains pending for the habeas court to
resolve on remand. See, e.g., Turpin v. Lipham, 270 Ga. 208, 220
(1998) (“Until there is a decision in the habeas court, [the unresolved
issues] are not ripe for appeal.”).
The Georgia Constitution provides that “[n]o person shall be
deprived of the right to prosecute or defend, either in person or by
an attorney, that person’s own cause in any of the courts of this
state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII; see also Ward v.
State, 288 Ga. 641, 645 (2011) (this paragraph embodies a “criminal
defendant’s right to be present and see and hear, all the proceedings
which are had against him on the trial before the Court.” (citations
omitted)). Proceedings during which the jury is selected or changed
4 Although the habeas court mentioned the federal right, its analysis of
harm was based on law regarding the violation of the state right, which differs materially from the analysis of harm for a violation of the federal right. See, e.g., Peterson v. State, 284 Ga. 275, 279 (2008) (noting that a critical difference between the federal right and the state right is that a violation of the federal right is subject to a harmless-error review while a violation of the state right is presumed to be prejudicial).
16 are a critical stage in which the defendant is entitled to be present.
See Ward, 288 Ga. at 645; see also Brewner v. State, 302 Ga. 6, 10
(2017).
The right to be present can attach to some bench conferences,
but not those “where the defendant’s presence bears no relation,
reasonably substantial, to the fullness of his opportunity to defend
against the charge, and thus would be useless, or the benefit but a
shadow.” Champ v. State, 310 Ga. 832, 840 (2021) (quotation marks
omitted). Such bench conferences to which the right does not apply
generally “deal with questions of law involving essentially legal
argument about which the defendant presumably has no knowledge,
or with procedural or logistical matters.” Id. (quotation marks
omitted). Bench conferences at which a juror is discussed and
dismissed, however, are proceedings to which the right to be present
applies. See Murphy v. State, 299 Ga. 238, 240 (2016). If the right to
be present attaches and a defendant has not waived it, any violation
of the right is presumed prejudicial and requires a new trial. See
Champ, 310 Ga. at 845 & n.10 (noting that Georgia is an outlier in
17 applying a conclusive presumption of harm to the violation of the
constitutional right and this rule has not been consistently followed
in our caselaw, as precedent traced to this Court’s early years has
applied harmless-error analysis).5
In setting out Morris’s right-to-be present claim, the habeas
court believed that the claim could not be resolved based on the trial
record alone, relying on this Court’s treatment of a similar claim
raised by Morris’s co-defendant in Drennon, 314 Ga. at 866–71. The
voir dire was transcribed, but the individual bench conferences were
not. In Drennon, we noted that although the defendant provided
record cites to relevant portions of the voir dire transcript where
bench conferences occurred, he made no effort to explain or
contextualize any of the nine relevant bench conferences and
provided no analysis as to how his right to be present was denied at
5 In Champ, we outlined in some detail our inconsistent application of a
conclusive presumption of harm. See 310 Ga. at 845, n.10. But whether to overrule cases applying that conclusive presumption was not argued or briefed in that case, and so the Court left that question for another day. See id. As in Champ, the parties here have not briefed the question, and so we again leave for another day whether to reconsider our precedent. 18 any of these nine conferences. 314 Ga. at 868. Despite these
omissions, we conducted our own review of the record and remanded
for further consideration based on our then-recent decision in
Champ that required a remand when a defendant raised a right-to-
be-present claim for the first time on appeal that could not be “easily
rejected based on the existing record.” Id. at 868–71 (quotation
marks omitted).
Morris argued, and the habeas court agreed, that at the very
least, if appellate counsel had raised the state law claim on direct
appeal, Morris would have obtained a remand like his co-defendant
did in Drennon. The habeas court found that this possibility was
sufficient to establish appellate counsel’s ineffectiveness. The
habeas court also concluded that on remand, based on the testimony
that had been developed in the habeas proceeding, there was a
“(more than) reasonable probability that the trial court would have
granted [ ] a new trial.”
But our decision in Drennon is inapplicable here because that
was a case on direct appeal. Because Morris raised the claim in a
19 habeas petition, it is controlled by our decision in Griffin v. Terry,
291 Ga. 326 (2012). There, the petitioner, exactly like Morris here,
raised a habeas claim that his appellate counsel was ineffective for
failing to raise a direct claim on appeal that his right to be present
was violated. Id. at 326. We held that because the habeas petitioner
was raising a claim of structural error in the context of an ineffective
assistance of counsel claim, prejudice would not be presumed and
the habeas petitioner had to establish actual prejudice. Id. at 328–
29. And we held that to show actual prejudice to an appeal, the
petitioner had to establish a reasonable probability that the result
of his trial would have been different had his absence been
prevented or corrected. Id. at 329. Because the petitioner in Griffin
could not make this showing, his habeas claim failed. Id. at 329–30.6
6 We express no opinion about whether Griffin was rightly decided. A
panel of the United States Court of Appeals for the Eleventh Circuit held in an unpublished opinion, over a dissent, that Griffin was wrong to require a petitioner to show actual prejudice in order to establish appellate counsel’s ineffectiveness in failing to raise a structural error claim on direct appeal. See Hall v. Warden, 686 FApp’x 671, 677–78 (11th Cir. 2017) (concluding that Griffin’s actual-prejudice standard was contrary to the United States Supreme Court’s holding in Smith v. Robbins, 528 US 259 (2000)); see also Hall, 686 FApp’x at 685–89 (Tjoflat, J., dissenting) (concluding that Robbins was
20 Morris did not argue below, much less present any evidence in
support, that the result of his trial would have been different had
his absence been prevented or corrected. He does not show that a
juror was improperly selected or rejected, or even if one had been,
that there was a reasonable probability that the result of his trial
would have been different. Therefore, this claim fails. See Griffin,
291 Ga. at 328–29 (concluding that petitioner failed to show that
result of trial would have been different if his absence from juror
colloquy had been prevented or corrected); cf. Peterson, 284 Ga. at
279 (deeming harmless any violation of the federal right to be
present where, given the strength of the evidence, even if the
defendant “had been present at the discussion with the juror, and
even if he had somehow managed to convince the trial judge (on
some basis not disclosed either to the trial court or to this Court) to
inapposite and noting precedent from the United States Supreme Court and the Eleventh Circuit that had required a showing of actual prejudice for claims of structural error that were procedurally defaulted or were raised in the context of ineffective assistance of counsel). Nevertheless, no party has asked us to revisit Griffin’s holding, which remains binding in Georgia courts until and unless we overrule it. We decline to reconsider that precedent sua sponte. 21 remove the juror and seat a replacement in his stead, the verdict
would have been the same”).
(b) Appellate counsel was not ineffective for failing to raise a claim on appeal that trial counsel was ineffective for failing to include Morris in all substantive voir dire bench conferences.
To prevail on a claim that his appellate counsel was ineffective
for failing to argue trial counsel’s ineffectiveness, Morris had to show
that a claim about trial counsel’s ineffectiveness would have
prevailed on direct appeal. Although the violation of the Georgia
right to be present is presumed prejudicial if raised as a direct claim,
such a presumption does not apply to claims raised in the context of
an ineffectiveness claim.
Even if the law presumes prejudice for certain errors when they are timely raised, a convicted defendant who, like [Morris], is seeking to overcome a procedural bar, whether in conjunction with or separate from a claim of ineffective assistance of counsel, does not have the benefit of that presumption of prejudice, and must instead meet the actual prejudice test.
Greer v. Thompson, 281 Ga. 419, 421–22 (2006) (cleaned up)7; see
7 There are exceptions to this rule: “(1) an actual or constructive denial
22 also Hall, 286 Ga. at 770 (habeas petitioner’s claim did not fall
within narrow range of cases in which a presumption of prejudice
could be assumed in context of appellate counsel’s failure to raise
trial counsel’s ineffectiveness); Alexander v. State, 313 Ga. 521, 530–
32 (2022) (adhering to rule that a claim of structural error, although
presumed prejudicial when raised as a direct claim, is not entitled
to the same presumption when raised in the context of an
ineffectiveness claim). Thus, to succeed on this claim, Morris had to
show that he was actually prejudiced by trial counsel’s failure to
include him in all substantive bench conferences. See Cartwright v.
Caldwell, 305 Ga. 371, 378 (2019) (“To determine prejudice
involving a claim that appellate counsel provided ineffective
assistance by failing to properly raise or prove a claim of ineffective
assistance of trial counsel, the petitioner must demonstrate that the
underlying ineffectiveness-of-trial-counsel claim would have had a
of counsel, (2) government interference with defense counsel, and (3) counsel [who] labors under an actual conflict of interest that adversely affects his performance.” Turpin v. Curtis, 278 Ga. 698, 699 (2004) (alteration in original). None of these exceptions apply here. 23 reasonable probability of success.”).
For the reasons discussed above, Morris cannot meet this
standard. Therefore, this claim also fails.
4. Appellate counsel was not ineffective for failing to allege on appeal that trial counsel was ineffective for failing to consult with or call a defense expert in cell tower analysis.
As mentioned above, the State presented evidence showing
that Morris’s cell phone was at the scene of the crime. In particular,
the State’s expert testified that Morris’s phone pinged off a cell
phone tower close to Club 112 at 3:02 a.m., three minutes before
officers were dispatched in response to Griffin’s murder. In cross-
examining the State’s expert, trial counsel cited cell phone records
showing that Morris made a phone call at 3:02 a.m., when he was
apparently close to Club 112, and that his phone pinged at a tower
located at 675 West Peachtree at 3:10 a.m., and got the State’s
expert to agree that it would have been difficult for Morris to make
his way through the club and get to the new location on West
Peachtree in eight minutes, demonstrating that it would have been
difficult for Morris to have been the shooter. And in cross-examining
24 Detective David Quinn, trial counsel established that Morris was on
his phone at 3:02 a.m. and 3:04 a.m. in the area of 1100 Peachtree
and at 3:10 a.m. near 675 West Peachtree, providing additional
evidence that it would not have been possible for Morris to be with
the shooters at the club and get all the way down to West Peachtree
in six minutes. 8 In closing argument, trial counsel emphasized that
the State’s timeline based on cell phone records did not work, and
that those records showed that Morris “couldn’t have been involved
in this,” because he could not have been doing “a bunch of stuff” in
the club and still get to the next location at 3:10 a.m.
In support of his claim that trial counsel was ineffective for
failing to consult or call as a witness an expert in cell tower analysis,
Morris presented at the habeas hearing the testimony of Andrew
Garrett, an expert in cell phone technology. Garrett generally
8 The Warden also points out that trial counsel used the cross- examination of Detective Quinn to argue that a cell-phone call between Morris and Hargrove at 3:02 a.m. showed that the men were not together. Morris argues that there was no evidence showing who made these calls between the phones, and Detective Quinn said it would not be unusual for them to call each other even if they were near each other, which the prosecutor used to argue that the phone call was a “signal” to kill Griffin. 25 challenged the methodology and application the State’s expert used
to place Morris at the scene, specifically testifying that the State’s
expert’s assertion that Morris had his phone in the area of the
shooting at the time of Griffin’s murder was not reliable. The habeas
court found Garrett’s testimony persuasive and held that the State’s
expert “misapplied the facts and data” of his cell phone analysis to
Morris’s case and held that trial counsel provided ineffective
assistance by failing to call an expert. We disagree.
We need not detail all of Garrett’s reasons for challenging the
methodology and conclusion of the State’s expert. Even if trial
counsel’s decision to cross-examine the State’s expert rather than
procuring his own expert was unreasonable, Morris cannot show
that trial counsel’s failure to consult with or call a defense expert
like Garrett prejudiced him. Notably, the State’s expert merely
corroborated other evidence that had been presented at trial.
Easterling testified that Morris was involved in planning Griffin’s
murder. Morris also told Easterling that he and others drove to Club
112 on the night of the murder and waited for Griffin to emerge, at
26 which point two of Morris’s confederates — Hargrove and Collins —
opened fire at Griffin. Morris told Easterling that Hargrove’s gun
jammed, so Collins shot and killed Griffin. Morris’s former girlfriend
told police that Morris had told her he had been present when Griffin
was killed and that Hargrove had been the triggerman. The former
girlfriend also testified that she also got rid of a gun for Morris by
throwing it into the sewer. The gun was subsequently retrieved by
police after the girlfriend directed them to the location.
The habeas court found prejudice because Morris’s former
girlfriend’s testimony corroborating Easterling’s testimony with
respect to Griffin’s murder was not credible and thus concluded that
the testimony from the State’s expert was the only credible evidence
placing Morris at the scene. But that conclusion was clearly
erroneous. Although the habeas court rightly noted that Easterling’s
testimony needed to be corroborated, Morris’s former girlfriend
amply corroborated Easterling’s testimony with respect to Griffin’s
murder. See, e.g., Crawford v. State, 294 Ga. 898, 901 (2014) (an
accomplice’s testimony must be corroborated by slight independent
27 evidence corroborating both the identity of the defendant and the
fact of his participation in the crime).
The habeas court discounted the testimony of Morris’s former
girlfriend as not amounting to credible evidence that he was present
for the crime because she could not remember what she told police,
she reported what she did because she was scared she might be
prosecuted, and she recanted her statements during her trial
testimony. As for the supposed recantation, the habeas court’s
citation of the record does not support its conclusion that the
girlfriend recanted everything she said. Instead of saying that
Hargrove shot Griffin as she reported to police, the former girlfriend
clarified that Morris told her that Collins shot Griffin. More
importantly, in clarifying her police report, she did not say that
Morris did not tell her he was not present, only that he said he did
not shoot Griffin. Moreover, although the girlfriend could not
remember everything she said to the police, her statements to police
were recorded and she did not refute the things she reported when
she reviewed that recording.
28 Moreover, Easterling testified about the IRC’s involvement,
including Morris’s, in other crimes. Specifically, Easterling
described
a September 2006 attack on, kidnapping of, and burglary of the home of victim Gary Lester. Lester, who had previously had dealings with Morris and other IRC associates, corroborated Easterling’s account and identified Morris as a participant in his abduction.
Morris, 294 Ga. at 47.9
Because Easterling’s testimony was corroborated in many
respects by others, a reasonable jury would likely give his testimony
considerable weight. As a result, because there was strong evidence
placing Morris at the scene of the crime, as well as evidence that he
planned the crime and travelled there with other gang members, one
of whom shot Griffin, there is not a reasonable probability that the
result of his trial would have been different had trial counsel
consulted with or called an expert on cell tower technology. Thus,
appellate counsel was not ineffective for failing to raise this claim of
9 Although Morris was charged for offenses against Lester in the same
indictment relating to the murder of Griffin, Morris was not tried for these offenses at the same trial. 29 ineffective assistance of trial counsel.
5. Appellate counsel was not ineffective for failing to argue on appeal that trial counsel was ineffective for not interviewing or calling co-indictee Collins.
The habeas court ruled that appellate counsel was ineffective
for failing to raise trial counsel’s ineffectiveness based on trial
counsel’s failure to investigate Collins and call him as a witness. We
disagree.
At a pretrial hearing, the parties discussed the availability of
Collins, whose trial was severed from the other defendants. The
prosecutor represented that Collins was incarcerated in New
Orleans. Counsel for co-defendant Drennon represented that she
had been “down there” to see if Collins would testify and Collins’s
attorney would not “make [him] available to testify.” In an affidavit
submitted in support of Morris’s habeas petition, Collins stated he
shot Griffin, Morris was not present for the shooting, he was
carrying Morris’s cell phone at the time, that he had confessed to
detectives prior to Morris’s trial that he shot Griffin, and that he has
“been and remain[ed] willing to testify” on Morris’s behalf in support
30 of his habeas petition. The prosecutor stated in an affidavit that
although Collins was actually brought to Georgia in hopes that he
would testify against Morris, no agreement had been made in
advance, and Collins was not called as a witness because he was
unwilling to testify against Morris and the other co-defendants.
At the habeas hearing, trial counsel said that Morris informed
him that Collins could be an exculpatory witness, providing evidence
that Morris was not a participant in the actual shooting. Trial
counsel said it was his understanding that Collins was in Louisiana
facing “murder charges or something out there” and “they’re not
going to let him go.” He said that the State never told him that
Collins was in Georgia during the course of Morris’s trial. He said
that had he known Collins was in Georgia, he would have insisted
that Collins be made available to testify, and that he should have
subpoenaed Collins in any case.
This evidence falls short of establishing trial counsel’s
deficiency. At the time of Morris’s trial, Drennon’s counsel
unequivocally said that Collins’s counsel was not going to let him
31 testify. As a result, it is far from clear that any effort to subpoena
Collins would have been fruitful. See Dodd v. State, 236 Ga. 572, 576
(1976) (trial court did not err in quashing a subpoena for the
appearance of co-indictee who asserted his right against self-
incrimination). Collins’s affidavit does not provide evidence to the
contrary. He merely stated that he was willing to testify at Morris’s
habeas proceeding, but he said nothing about testifying at Morris’s
trial. Although the State brought Collins in the hopes of testifying
against Morris, Collins was unwilling to do so. That he refused to
testify for the State does not establish that he would have been
willing to testify at trial in support of Morris. To conclude otherwise
is pure speculation. Morris’s claim fails.
6. Appellate counsel was not ineffective for failing to raise a claim that trial counsel was ineffective for withdrawing the motion for new trial without Morris’s consent.
Trial counsel testified at the habeas hearing that based on the
trial court’s rulings with other co-defendants, he did not want the
motion for new trial to linger and wanted to proceed with the direct
appeal. Trial counsel explained that he did not believe the trial court
32 would rule favorably on the motion for new trial but “was supremely
confident” that Morris’s convictions would get reversed on appeal.
Although trial counsel informed Morris of the decision to withdraw
the motion for new trial, stating that he wanted to “clear the way”
for an appeal, he did not get Morris’s consent. Morris testified at the
habeas hearing that trial counsel never asked for his consent to
withdraw the motion and was not told of the “pros and cons” of
waiving the motion, stating that he did not understand what was
going on. Morris did not, however, testify that he would not have
given his consent had this been explained to him.
Even if trial counsel was deficient for failing to fully explain
the consequences of withdrawing the motion and failing to get
Morris’s consent, Morris has not established prejudice from the
withdrawal. Morris did not testify that he would have refused to give
consent had he been adequately informed of the consequences of
doing so. Compare State v. Garland, 298 Ga. 482, 485 (2016) (habeas
petitioner established prejudice by testifying that he would not have
consented to the withdrawal of his motion for new trial). Because
33 Morris cannot establish that trial counsel was ineffective for failing
to obtain his consent in withdrawing the motion for new trial, his
claim of appellate counsel ineffectiveness on this ground fails.
7. Appellate counsel was not ineffective for failing to argue on appeal that this Court erred in denying counsel’s motion to remand the case.
The habeas court concluded that had appellate counsel
enumerated as error this Court’s denial of counsel’s motion to
remand, “the Court would have addressed the issue more
thoroughly.” But counsel’s motion provided no compelling reason to
remand, such as indicating that he wished to raise ineffectiveness
claims on appeal or develop the record in other ways. It was hardly
error to deny such a motion. Moreover, because we concluded above
in rejecting the claim that appellate counsel was ineffective for
failing to argue trial counsel was ineffective for withdrawing the
motion for new trial, Morris similarly cannot show that he was
prejudiced by not securing a remand to pursue that motion for new
trial. Thus, this ground of ineffectiveness fails.
8. Appellate counsel was not ineffective for failing to argue on
34 appeal that the evidence was insufficient to support Morris’s convictions.
Although appellate counsel did not argue on appeal that the
evidence was insufficient, this Court nevertheless conducted a sua
sponte review of the evidence, as had been our practice then, and
concluded that the evidence was sufficient to support all of Morris’s
convictions. See Morris, 294 Ga. at 48. In concluding that we would
have reached a different conclusion had the issue been raised by
appellate counsel on appeal, the habeas court relied primarily on cell
phone expert testimony developed at the habeas hearing. In other
words, the habeas court relied on evidence not existing at the time
of the appeal but on evidence that was produced after the appeal was
decided. This is not how we conduct a sufficiency review. See, e.g.,
Nazario v. State, 293 Ga. 480, 488 (2013) (“[T]he reviewing court is
limited to finding error, as in all cases, based on the record.”);
Rymuza v. Rymuza, 292 Ga. 98, 102 (2012) (“[A] reviewing court is
limited to the record before it on appeal.”). The habeas court also
concluded that Easterling’s accomplice testimony was not
35 sufficiently corroborated, but as explained above, the habeas court
erred in reaching this conclusion. Morris cannot show that our prior
conclusion on Morris’s direct appeal was wrong, so he cannot show
that appellate counsel was ineffective for failing to raise a
sufficiency claim on direct appeal.
9. Appellate counsel was not ineffective for failing to argue on appeal that the trial court erred in deciding not to bifurcate the gang activity count.
Morris did not argue, and the habeas court did not find, that
the gang activity count was “joined solely” on the ground that it was
“of the same or similar character” as the other offenses, so he was
not entitled to severance as a matter of right. See White v. State, 319
Ga. 367, 377 (2024) (“A defendant has a right to severance where the
offenses are joined solely on the ground that they are of the same or
similar character because of the great risk of prejudice from a joint
disposition of unrelated charges.” (cleaned up)). Morris thus needed
to show that a trial court abused its discretion in denying his motion
to sever, but “’[t]ypically, a trial court does not abuse its discretion
in denying a motion to sever where evidence of one charge would be
36 admissible in the trial of the other and there is no evidence that the
joinder confused or misled the jury.” Id. Morris has not made this
showing.
Morris did not argue that the gang activity evidence “confused
or misled the jury.” And he did not argue that the evidence was not
relevant. See Campbell v. State, 320 Ga. 333, 340–41 (2024)
(evidence of gang activity was relevant to murder charge when it
showed motivation for killing the victim). He argued only that the
gang evidence was highly prejudicial. But for relevant and highly
prejudicial evidence to be excluded, its probative value must be
substantially outweighed by the danger of unfair prejudice. See
Wilson v. State, 315 Ga. 728, 738 (2023) (citing OCGA § 24-4-403).
Morris did not argue, much less show, that the relevant evidence
was unfairly prejudicial or that this unfairly prejudicial effect
substantially outweighed its probative value. In short, he made no
showing that the gang activity evidence would not have been
admissible in a severed trial. Thus, he failed to show that the trial
court abused its discretion in denying his motion to sever. See, e.g.,
37 Campbell, 320 Ga. at 340–41 (trial court did not abuse its discretion
in severing two murder counts where evidence of one murder would
have established that it was committed in order to cover up crimes
of the gang and evidence of the other murder would have established
a motive for the crime); McCabe v. State, 319 Ga. 275, 287 (2024)
(trial court did not abuse its discretion by denying the motion to
sever when the challenged evidence “was a relevant part of
explaining the plan and motive for his criminal conduct”). The claim
of appellate counsel’s ineffectiveness on this ground fails.
***
In sum, we reverse the habeas court’s grant of relief to Morris.
Morris’s claims of ineffective assistance of trial counsel were
procedurally defaulted, and he has not overcome this procedural
default by showing that appellate counsel was ineffective for failing
to raise these claims. Morris also has not established that appellate
counsel was ineffective for failing to raise other claims directly. The
habeas court made no ruling on whether appellate counsel was
ineffective for failing to raise a claim that Morris’s federal
38 constitutional right to be present was violated. Thus, we reverse in
part and remand in part for that remaining claim to be addressed.
Judgment reversed in part and case remanded in part. All the Justices concur.