THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
October 4, 2022
In the Court of Appeals of Georgia A22A1085. THE STATE v. SHELNUTT.
PHIPPS, Senior Appellate Judge.
Following a jury trial, Darrell Reed Shelnutt was found guilty of two counts
each of aggravated assault on a law enforcement officer and interference with
government property. Shelnutt timely filed a motion for new trial, as amended, which
the trial court granted after determining that trial counsel rendered ineffective
assistance by (a) failing to object to testimony that lacked proper foundation, (b)
failing to call an expert or other witnesses in support of his defense, (c) leaving the
jury with the impression that Shelnutt had a criminal history, and (d) negatively
characterizing Shelnutt during his closing argument. On appeal, the State argues that
the trial court erred in concluding that Shelnutt’s trial counsel performed deficiently and that prejudice resulted from the deficient performance. As explained below, we
agree and therefore reverse the order granting Shelnutt a new trial.
The record shows that on August 23, 2018, Shelnutt and his mother-in-law,
G. T., were at a property owned by G. T.’s daughter/Shelnutt’s wife. At the time,
Shelnutt had been living in a residence on the property, and G. T. wanted to evict
him. While Shelnutt was loading up his truck to move, he got into a physical
altercation with G. T. Following the altercation, G. T. called 911 for assistance, and
Shelnutt left. Two sheriff’s deputies arrived, parked on the property, exited their
vehicles, and began speaking with G. T. Moments later, Shelnutt came “flying up”
the driveway in a Ford F-150 truck. According to one of the deputies, as Shelnutt’s
truck approached the property, he did not apply the brakes and “revved [the] engine
the entire time.” The deputies and G. T. ran into the yard, while Shelnutt drove his
truck into the back of one of the deputies’ vehicles, pushing that vehicle into the back
of the other deputy’s vehicle. As a result, both vehicles were extensively damaged.
Shelnutt exited his truck, appeared to grab a gun, ran and barricaded himself inside
the residence, and yelled out a window that he was “not going down without a fight.”
The deputies called for backup, and a response team arrived at the property.
Unbeknownst to the deputies and response team, Shelnutt had fled the residence. He
2 was later located and arrested approximately one mile from the property with six
bullets in his pocket.
Following his arrest, law enforcement interviewed Shelnutt. The investigating
officer testified that, during the interview, Shelnutt stated that he was angry about
G. T. evicting him. The officer further testified that when asked why he drove his
truck into the deputies’ vehicles, Shelnutt stated that “[the] County made [him] do it”
and that “it got the officer[s’] attention, didn’t it?” When asked whether Shelnutt saw
the deputies and where they were located, the investigator testified that Shelnutt told
him that he had, but he “locked the brakes up” while driving up the driveway.
According to the investigating officer, Shelnutt became irate when questioned about
why there were no skid marks at the scene, so the officer changed his line of
questioning.
In January 2019, Shelnutt was indicted on two counts each of aggravated
assault on a law enforcement officer and interference with government property, and
the case proceeded to a jury trial. At trial, the State presented the testimony of G. T.
and eight law enforcement officers, including a Georgia State Patrol officer who was
trained in crash scene investigation and wrote a crash scene investigation report and
the officer who interviewed Shelnutt following his arrest. The officer who wrote the
3 crash scene investigation report testified that there was no evidence that Shelnutt
applied his brakes before colliding with the deputies’ vehicles. The State also
introduced dash cam video recording from the deputy’s vehicle, a video recording of
Shelnutt’s in-custody interview, and photographs of the damaged vehicles.
Shelnutt called two witnesses in his defense — an eyewitness, A. M., and his
nephew, J. B. — to offer testimony that the collision was not intentional. While
Shelnutt did not testify, in his cross-examination of the State’s witnesses and closing
argument, Shelnutt’s counsel took the position that the State’s case fell short of
proving that Shelnutt acted with intent when he crashed into the deputies’ vehicles.
During closing argument, the State contended that the evidence showed that Shelnutt
intentionally drove his truck toward the deputies and into their vehicles. The jury
found Shelnutt guilty on all counts. Shelnutt was then sentenced to ten years, to serve
the first three years in confinement and the remainder on probation.
Following sentencing, Shelnutt moved for a new trial, asserting several claims
of error, including that his trial counsel rendered ineffective assistance. The court
held a hearing on the motion, found that Shelnutt had received ineffective assistance
of counsel, and granted Shelnutt a new trial. The State appeals, contending that the
trial court erred in granting a new trial because Shelnutt did not carry his burden of
4 demonstrating that his counsel rendered ineffective assistance. For the reasons that
follow, we agree.
In determining whether Shelnutt received ineffective assistance of counsel, we
apply the two-pronged test set out in Strickland v. Washington, 466 U. S. 668, 687
(III) (104 SCt 2052, 80 LE2d 674) (1984). See Harris v. State, 313 Ga. 225, 234 (5)
(869 SE2d 461) (2022).
To show that the performance of his lawyer was deficient, [Shelnutt] must prove that his lawyer performed [his] duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. As for prejudice, the proper standard requires [Shelnutt] to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Harris, 301 Ga. 234, 237 (2) (799 SE2d 801) (2017) (citations and
punctuation omitted). A claim of ineffective assistance of counsel is a mixed question
of law and fact. Id. “Therefore, when reviewing a trial court’s decision to grant a
motion for new trial based on ineffective assistance of counsel, we defer to the trial
court’s findings of fact unless clearly erroneous, but owe no such deference to its
conclusions of law[,] which we apply independently to the facts.” Id. (citation and
5 punctuation omitted). With these guiding principles in mind, we turn to the State’s
argument that the trial court erred in finding that Shelnutt met his burden of
demonstrating ineffective assistance of counsel.
1. We first consider the State’s contention that the trial court erred in finding
that Shelnutt’s counsel rendered ineffective assistance by failing to raise an objection,
based upon the lack of foundation, to lay testimony about the speed of Shelnutt’s
vehicle.1 We conclude that trial counsel’s failure to object was neither deficient nor
prejudicial under Strickland. See 466 U. S. at 687 (III).
(a) Deficiency. The State asserts that counsel’s decision not to raise a
foundation objection was strategic and reasonable and that the trial court therefore
erred in concluding that counsel performed deficiently. At trial, two lay witnesses
testified as to the speed of Shelnutt’s truck before impact: (1) G. T. testified that
Shelnutt was traveling approximately 90 miles per hour, and (2) A. M. testified that
Shelnutt was driving “really fast” and “probably going about seventy, eighty” miles
per hour. Neither witness testified as to the basis for their speed estimation, and trial
1 In his brief, Shelnutt asserts that the State fails to cite any portion of the record in support of its contentions of error. However, the State’s brief, which cites to the record in part one instead of part three, substantially complies with Court of Appeals Rule 25 (a) (5).
6 counsel did not object to the referenced testimony.2 Shelnutt’s trial counsel testified
at the motion for new trial hearing that he did not object to the speed estimation
testimony because he thought that such knowledge was in the “normal ken of any
adult who drives,” and by the time he realized he should have objected, the questions
had been already answered. However, trial counsel also testified that he did not object
for the additional reason that the testimony supported his trial strategy and accident
defense — that Shelnutt was driving fast and “could not stop despite his best efforts.”
In fact, in his closing argument, trial counsel argued that Shelnutt was driving “too
fast” and “recklessly” as he approached the vehicles, implying that Shelnutt struck
them by accident. Additionally, trial counsel testified at the motion for new trial
hearing that the jury viewed the dash cam video recording, which showed “one car
being hit so hard that it [slammed] into another” and that he was “using those facts
2 When a “witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are: (1) Rationally based on the perception of the witness; (2) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24-7-702.” OCGA § 24-7-701 (a); accord Clack v. Hasnat, 354 Ga. App. 502, 503 (1) (841 SE2d 210) (2020); Horton v. State, 119 Ga. App. 43, 44 (3) (166 SE2d 47) (1969). Thus, a layperson’s “opinion of speed is admissible in evidence when [the layperson] has testified as to the facts upon which the opinion is based.” Clack, 354 Ga. App. at 503 (1) (citation and punctuation omitted).
7 to make the additional point that . . . [Shelnutt] could not stop despite his best
efforts.”
As general rule, “matters of reasonable tactics and strategy, whether wise or
unwise, do not amount to ineffective assistance of counsel.” Hutcheson v. State, 361
Ga. App. 890, 898 (3) (a) (864 SE2d 106) (2021) (citation and punctuation omitted).
Decisions about “when and how to raise foundation objections [are] generally a
matter of trial strategy.” Brown v. State, 307 Ga. App. 797, 807 (5) (d) (706 SE2d
170) (2011) (citation and punctuation omitted). Consequently, because “the making
of objections falls within the realm of trial tactics and strategy,” it “usually provides
no basis for reversal of a conviction.” Moon v. State, 288 Ga. 508, 516 (9) (705 SE2d
649) (2011) (citations and punctuation omitted). Here, counsel testified that he did
not object to the testimony, in part, because it supported his trial strategy and accident
defense — that Shelnutt’s speed contributed to the “accident.” This strategy was not
professionally unreasonable, and we therefore cannot say that counsel performed
deficiently in choosing not to raise a foundation objection. See Brown, 307 Ga. App.
at 807 (5) (d).
(b) Prejudice. Regardless, even if trial counsel performed deficiently, the
failure to raise a foundation objection was not prejudicial to Shelnutt’s defense
8 because, as argued by the State, other evidence presented at trial established his
speed, and G. T.’s and A. M.’s testimony therefore was cumulative. Both deputies
whose vehicles were struck by Shelnutt’s truck testified about his truck’s approach.
One deputy stated that he turned around and saw Shelnutt’s truck as it came “flying
up the driveway,” and the other described Shelnutt’s truck traveling “towards [them]
at a high rate of speed.” And, the dash cam video recording showing the impact of
Shelnutt’s collision into the deputies’ vehicle was played for the jury. Therefore, it
is highly unlikely that the result of the trial would have been different but for
counsel’s failure to object to G. T.’s and A. M.’s testimony regarding Shelnutt’s
speed. See Marshall v. State, 299 Ga. 825, 828 (2) (b) (792 SE2d 350) (2016) (no
prejudice where the effect of the challenged statements “was merely cumulative of
other undisputed evidence”). Accordingly, counsel’s decision not to raise a
foundation objection was neither deficient nor prejudicial.
2. The State next argues that the trial court erred by determining that Shelnutt’s
counsel rendered ineffective assistance by failing to (a) call an accident
reconstructionist as an expert to testify or (b) support the accident theory of defense
with other available evidence. The State asserts that the trial court erred because (a)
trial counsel’s decision not to call the accident reconstructionist as an expert was
9 reasonable under the circumstances, and (b) Shelnutt did not call the accident
reconstructionist, or any other witness, to testify at the motion for new trial hearing,
and he therefore failed to show a reasonable probability that, but for counsel’s
decision in this regard, the result of the proceeding would have been different. We
agree.
(a) Deficiency. It is generally accepted that decisions about “which defense
witnesses to call [are] a matter of trial strategy and tactics” and that “errors in that
regard will not constitute ineffective assistance of counsel unless those errors are
unreasonable ones no competent attorney would have made under similar
circumstances.” Perdue v. State, 298 Ga. 841, 845 (3) (785 SE2d 291) (2016)
(citation and punctuation omitted) (finding counsel was not professionally deficient
where counsel conducted a benefit analysis and opted to cross-examine the State’s
expert rather than retain an expert); see also Matthews v. State, 301 Ga. 286, 289 (2)
(800 SE2d 533) (2017) (finding reasonable professional conduct where counsel
consulted with a supervisor, decided not to hire an expert, and instead used cross-
examination and closing argument to advance the defense theory).
At the motion for new trial hearing, trial counsel was questioned about his
decision not to call an expert witness to testify on Shelnutt’s behalf. Counsel testified
10 that he “interviewed everyone [he] thought might have something substantive to add”
to the defense. And, counsel explained that while he hired an accident
reconstructionist to review the case file and written documentation, he ultimately
decided not to call an expert witness because the “black box” containing crash data
from Shelnutt’s truck was not located and, without it, the accident reconstructionist’s
report would be incomplete.3 According to trial counsel, because the report was
incomplete, he opted to cross-examine the Georgia State Patrol officer who was
trained in crash scene investigation about the crash rather than call an expert
reconstructionist to testify. Counsel testified that in hindsight, however, he would
have called the accident reconstructionist.
We conclude that trial counsel’s decision not to call an expert or additional
witnesses to testify was strategic and derived from the evidence available to him at
the time of trial. “Trial counsel articulated valid reasons for not calling [an expert] as
a trial witness, and his strategy did not constitute ineffective assistance of counsel.”
Noe v. State, 287 Ga. App. 728, 731 (2) (652 SE2d 620) (2007). As for counsel’s
statement that he would have called the accident reconstructionist in hindsight,
3 Trial counsel testified that a “black box” is a computerized device that contains information about a vehicle’s operation and would show whether a vehicle was accelerating or braking before a crash.
11 “hindsight has no place in an assessment of the performance of trial counsel, and a
lawyer second-guessing his or her own performance with the benefit of hindsight has
no significance for an ineffective assistance of counsel claim.” State v. Walker, 350
Ga. App. 168, 172 (1) (828 SE2d 402) (2019) (citation and punctuation omitted).
Therefore, under the circumstances, counsel’s decision to use cross-examination
rather than call an expert to advance his theory of defense was not professionally
deficient.
(b) Prejudice. Regardless, as argued by the State, Shelnutt also cannot establish
prejudice because he did not proffer the testimony of the accident reconstructionist,
or any other witness, as to the cause of the collision.
“To prove the prejudice prong of Strickland on a claim that trial counsel failed
to call a witness, a defendant must show the witness’s expected testimony by
presenting either live testimony of the witness, an affidavit from the witness, or a
legally recognized substitute for the uncalled witness’s testimony.” Newby v. State,
338 Ga. App. 588, 593 (3) (b) (791 SE2d 92) (2016) (citation and punctuation
omitted) (finding defendant failed to establish a claim of ineffective assistance of
counsel where, at the motion for new trial hearing, counsel did not call a witness or
make a proffer as to the proposed witness’s testimony); see also Harris v. State, 304
12 Ga. 652, 655 (2) (a) (821 SE2d 346) (2018) (“With regard to the purported witnesses
who never testified, [a defendant] must introduce either testimony from the uncalled
witness or a legally recognized substitute for his or her testimony.”) (citation and
punctuation omitted). Shelnutt failed to present any evidence at the motion for new
trial hearing that would have been elicited from an accident reconstructionist, or any
other witness, and he has not shown whether any such trial testimony would have
been favorable to his defense; therefore, he has not satisfied his burden in this regard.
See State v. Dague, 325 Ga. App. 202, 211-212 (3) (c) (750 SE2d 476) (2013)
(rejecting a defendant’s claim that he was prejudiced when only his trial counsel
testified at the motion for new trial hearing, and not the witness the defendant claimed
would have provided pertinent testimony had she been called to testify at trial).
Because Shelnutt neither demonstrated that his trial counsel’s strategy was
unreasonable nor established that he was prejudiced by his trial counsel’s decision,
he has failed to show that his trial counsel rendered ineffective assistance. See id.
3. We next consider the State’s contention that the trial court erred in finding
that Shelnutt’s trial counsel rendered ineffective assistance during his cross-
examination of the officer who interviewed Shelnutt following his arrest. The State
asserts that counsel’s cross-examination was grounded in trial tactics and strategy,
13 that no harmful testimony was elicited, and that, as a result, the cross-examination
was neither deficient nor prejudicial. We agree.
At trial, the State called the sheriff’s investigator who interviewed Shelnutt
following his arrest, and the investigator testified that, during the interview, Shelnutt
indicated that he owned a revolver. On cross-examination, trial counsel asked
whether Shelnutt had a gun at the time of his arrest, and the investigator testified that
Shelnutt did not. Trial counsel then asked the investigator if he had looked into
Shelnutt’s criminal history and whether the investigator knew if it was “a crime for
[Shelnutt] to have a firearm” at the time of his arrest.4 The investigator testified that
he did not know whether Shelnutt could legally possess a firearm because he did not
4 The prosecutor objected and argued that these questions were not relevant and constituted improper attempts to bolster Shelnutt’s character. Trial counsel responded that his questions “had nothing to do with bolstering”; rather, he wanted to elicit testimony about whether it was a crime for his client to possess a firearm. The court sustained the prosecutor’s objection to counsel’s question about whether the investigator had looked into Shelnutt’s criminal record and overruled the objection to counsel’s question about whether the investigator knew if Shelnutt could legally possess a firearm. Neither party has challenged the court’s rulings in this regard, and we therefore do not address them. See Owens v. State, 241 Ga. App. 140, 140 (4) (525 SE2d 150) (1999) (“[A party’s] failure to raise . . . matters in his enumeration of errors and initial brief precludes appellate review.”) (citation and punctuation omitted).
14 know Shelnutt’s criminal history. Shortly thereafter, counsel concluded his cross-
examination, and the investigator was excused.
(a) Deficiency. Generally, decisions on whether and how to conduct cross-
examinations are the exclusive province of the lawyer after consultation with his
client. See State v. Wofford, 321 Ga. App. 249, 257 (1) (a) (739 SE2d 110) (2013).
Thus, because “[t]he scope of cross-examination is grounded in trial tactics and
strategy,” it “will rarely constitute ineffective assistance of counsel.” Clark v. State,
360 Ga. App. 11, 15 (3) (b) (858 SE2d 519) (2021) (citation and punctuation
omitted). In that regard, counsel’s questions about a defendant’s criminal record do
not necessarily constitute ineffective assistance if they are part of a reasonable
defense strategy. See Collins v. State, 276 Ga. 726, 728 (2) (583 SE2d 26) (2003)
(rejecting ineffective assistance claim where counsel introduced defendant’s criminal
record on direct examination as part of defense strategy of portraying defendant “as
a truthful man with nothing to hide”); Crawford v. State, 252 Ga. App. 722, 725 (3)
(556 SE2d 888) (2001) (finding that counsel’s decision to elicit testimony about a
defendant’s prior convictions as part of counsel’s strategy of establishing that the
defendant “had no history of violence, willingly admitted his past mistakes, . . . and
had become a ‘working man’” did not constitute ineffective assistance).
15 Here, trial counsel testified that he asked the investigator questions about
Shelnutt’s criminal record because he wanted to show that Shelnutt’s behavior after
the crash was not illegal and not relevant to the offenses for which he had been
charged. He also testified that his strategy, at the time, was to show that (a) it was not
illegal for Shelnutt to possess bullets or a gun, (b) “everything after the accident was
a sideshow” because nothing illegal happened after the crash and no charges arose
from any of the evidence gathered after the crash, and (c) Shelnutt’s “alleged
possession of a handgun” “had nothing to do with the charges at hand.” However,
upon reflection, at the motion for new trial hearing, counsel testified that the
questions about Shelnutt’s criminal record “[were] a mistake on [his] part.” As stated
previously, however, though Shelnutt’s trial counsel may now view this line of
inquiry differently, “reasonable minds may disagree after the fact, [and] effectiveness
is not judged by hindsight.” Crawford, 252 Ga. App. at 725 (3); see also Jones v.
State, 296 Ga. 561, 565 (3) (769 SE2d 307) (2015) (“[E]ffective counsel does not
mean errorless counsel, nor counsel judged ineffective by hindsight, but counsel
reasonably likely to render and rendering reasonably effective assistance.”) (citation
and punctuation omitted).
16 While counsel’s cross-examination may have been inartful, his strategy of
portraying Shelnutt’s post-crash behavior as legal and not relevant to the crimes for
which he had been charged was not objectively unreasonable. See, e.g., Collins, 276
Ga. at 728 (2); Crawford, 252 Ga. App. at 725 (3); see also State v. Reynolds, 332 Ga.
App. 818, 823 (775 SE2d 187) (2015) (concluding that trial counsel’s strategy of
eliciting testimony about his client’s drug-related offenses in an attempt to exculpate
him from more serious charges related to an armed robbery was not “so unreasonable
that no competent attorney would have pursued it under similar circumstances”)
(emphasis omitted). Thus, we conclude that Shelnutt’s trial counsel’s strategy was not
unreasonable and that his performance therefore was not deficient.
(b) Prejudice. Regardless, even if trial counsel performed deficiently, Shelnutt
also has failed to show a reasonable probability that, if the questions had not been
asked, the result of the trial would have been different. See Collins, 276 Ga. at 728
(2). There is no indication that trial counsel’s questions about Shelnutt’s criminal
record elicited evidence that he was a convicted felon or unlawfully possessed a
firearm. Moreover, any testimony elicited about whether Shelnutt could have lawfully
possessed a firearm or had a criminal record was not so significant to have
contributed to the jury’s verdict given the significant evidence that Shelnutt acted
17 intentionally when he drove his truck toward the deputies and into their vehicles. See
Fountain v. State, 231 Ga. App. 700, 701 (500 SE2d 614) (1998) (finding that
counsel’s decision to elicit a defendant’s criminal history was not prejudicial
considering the overwhelming evidence of the defendant’s guilt). Therefore, we
conclude that Shelnutt’s counsel’s cross-examination was neither deficient nor
prejudicial.
4. The State contends that the trial court erred in finding that Shelnutt’s trial
counsel’s closing argument comments about Shelnutt’s post-crash behavior
constituted ineffective assistance. We conclude that while counsel’s comments during
closing arguably might be considered ill-phrased or coarse, they were neither
deficient nor prejudicial.
In closing argument, Shelnutt’s trial counsel reviewed the evidence presented
at trial, commenting on Shelnutt’s in-custody interview as follows:
I watched [Shelnutt’s] interview with [the police investigator] more times than I can count, and you’re a stubborn son of a bitch, you know that. Couldn’t [Shelnutt] have just answered [the investigator’s] questions without being a smartass? Yes, [the investigator] asked him, did you see the deputies, and what did [Shelnutt] say? Yes, I did. If he hadn’t been such — I’m going to say smart aleck — we’re in a court of law, all right — maybe [the investigator] would have followed up with,
18 when did you see the deputies, because he saw the deputies when he hit the deputies’ car; he didn’t see them before. You couldn’t have said that? You’re killing me man, but that’s ok because he enjoys the presumption of innocence, and the State’s got to prove his guilt beyond a reasonable doubt, so you’re allowed a little mistake here and there. . . . Did [Shelnutt] say he got someone’s attention? Yes, he did. Was he being smart; was he being ornery; was he being a pain in the ass? Yes. What did he also say when pressed? I didn’t try to hit anyone; I did everything I could to avoid it, didn’t threaten anyone; I didn’t have a gun. . . . And was [Shelnutt] a lot more hardheaded than he needed to be? Yes, but did he continue to say the same thing when pressed? Over and over, I tried to avoid it, tried to miss them, didn’t mean it.”
Following these comments, trial counsel argued that the evidence showed that while
Shelnutt drove recklessly, he was not aiming for the deputies, and by the time
Shelnutt saw them, he could not avoid them. Counsel concluded his closing argument
by asking the jury to find that the State had not proven Shelnutt’s guilt beyond a
reasonable doubt.
(a) Deficiency. With regard to closing argument, “[d]efense counsel is given
wide latitude.” Chavez v. State, 307 Ga. 804, 812 (2) (c) (837 SE2d 766) (2020)
(citation and punctuation omitted). Georgia appellate courts “will not, with benefit
of hindsight, second-guess defense trial strategies therein. Absent a strong showing
19 that counsel’s actions were not reasonable, we will presume that these strategies were
not deficient.” Id. (citation and punctuation omitted). Moreover, “[i]t cannot be said
that trial counsel was ineffective simply because another attorney might have used
different language or placed a different emphasis on the evidence.” Davenport v.
State, 283 Ga. 171, 175 (5) (656 SE2d 844) (2008). “[T]he inquiry into the
reasonableness of counsel’s strategic decisions is an objective one.” Chavez, 307 Ga.
at 812 (2) (c). To meet his burden of proving deficient performance, Shelnutt must
show that his trial counsel’s decision to address information the jury had heard about
Shelnutt was “objectively unreasonable.” Id.
At the motion for new trial hearing, Shelnutt’s counsel testified that he made
the comments about Shelnutt’s post-crash interview during his closing argument as
a “Hail Mary” strategy because the facts against Shelnutt were “so bad.” Counsel
testified that, during his closing argument, he was trying to: (i) “personalize Mr.
Shelnutt”; (ii) “illustrate even in this, even when he’s in serious trouble, he is still
being [himself], a stubborn man but not someone who’s trying to hit police officers”;
and (iii) convey that the jury did not have to “like” his client in order to acquit him
of the charges.
20 The trial court compared counsel’s comments about Shelnutt to other cases in
which defense counsel criticized a defendant during trial and found that in Shelnutt’s
case “there was no prior bad act, similar transaction, impeachment, or gang activity
evidence that would have made [trial counsel’s comments] necessary.” We do not
agree that the only circumstances under which it may be reasonable for defense
counsel to address negative evidence about a defendant is limited in this way. “Again,
the inquiry into the reasonableness of counsel’s strategic decisions is an objective
one.” Chavez, 307 Ga. at 812 (2) (c). The jury heard testimony and received evidence
that after the crash Shelnutt (i) admitted he was angry about being evicted, (ii) saw
the deputies and their location when he was driving his truck toward the property, (iii)
responded to questions about why he struck the deputies’ vehicles by stating that “it
got the officer[s’] attention, didn’t it?”, and (iv) became irate when questioned about
the absence of skid marks at the crash site. Even if trial counsel’s language arguably
may have been ill-phrased, we cannot say that his decision to comment on Shelnutt’s
behavior was objectively unreasonable — especially in light of counsel’s testimony
that his “Hail Mary” strategy for closing argument was to convince the jury that they
did not have to convict Shelnutt merely because he was a stubborn, hardheaded man.
See id. 812-813 (2) (c) (defense counsel’s comments during closing argument that the
21 defendant was “everything that is deemed undesirable in our society right now” and
that he had a drug conviction and a gun and was a “[b]ad person” as part of his
strategy of showing that the defendant had “a constitutional right to hold the State to
a burden of proof of beyond a reasonable doubt, even if the jury did not like him or
what he represents,” was not an objectively unreasonable strategy) (punctuation
omitted); Wheeler v. State, 290 Ga. 817, 821 (6) (c) (725 SE2d 580) (2012) (defense
counsel’s strategic decision to call his client, during closing argument, “the meanest
SOB in Grady County” was not unreasonable as an effort to minimize the potential
effect of similar transaction evidence that had been admitted at trial). We conclude
that Shelnutt’s trial counsel’s comments were not objectively unreasonable given that
they were part of his strategy of addressing the conduct that the jury had already
heard by illustrating that Shelnutt may be a stubborn man but was not someone who
would have intentionally hit law enforcement officers. See, e.g., Chavez, 307 Ga. at
812-813 (2) (c); Wheeler, 290 Ga. at 821 (6) (c).
(b) Prejudice. Regardless, even if trial counsel performed deficiently, we also
agree with the State that his comments were not prejudicial in light of the substantial
evidence that Shelnutt acted intentionally when he drove his truck toward the
22 deputies and into their vehicles. We likewise agree with the State that it was not trial
counsel’s comments, but Shelnutt’s own recorded behavior, that was prejudicial.
As stated previously, to establish prejudice, a defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Chavez, 307 Ga. at 809 (2) (citation and
punctuation omitted). Thus, Shelnutt must establish that, but for counsel’s comments
during closing argument, as described above, there is a reasonable probability that the
result of the trial would have been different. At the motion for new trial hearing,
Shelnutt’s counsel testified that the case against Shelnutt was a strong one and that
it would have been difficult “to have a theory of innocence that embraced all [of] the
facts.” And, the State presented substantial evidence that Shelnutt acted intentionally
when he drove toward the deputies and into their vehicles, including the dash cam
video recording of the crash, the crash scene investigation report, photographs and
testimony about the damaged vehicles, and the video recording of Shelnutt’s in-
custody statements regarding the crash. “In light of the overwhelming evidence of
[Shelnutt’s] guilt, he has failed to demonstrate that but for the handful of comments
in [his trial counsel’s] closing argument discussed above, there is a reasonable
probability that the outcome of the trial would have been more favorable to him.”
23 Reed v. State, 291 Ga. 10, 17 (4) (b) (727 SE2d 112) (2012) (citation and punctuation
omitted); see also Fulton v. State, 278 Ga. 58, 65 (8) (597 SE2d 396) (2004) (finding
that while counsel performed deficiently by not objecting to the State’s comments in
closing that the defendant was a “menace to our society” and a “cancer in the
community” who needed to be excised “to protect the community” and the jurors
since there were “no walls around [defendant’s] neighborhood that would prevent
something like this from happening in [their] communities,” the failure to object was
not so prejudicial that there was a reasonable probability that the outcome of the trial
would have been different) (punctuation omitted). Therefore, because Shelnutt has
not shown that trial counsel’s comments during closing were objectively
unreasonable or prejudicial, we conclude that he did not meet his burden of proving
ineffective assistance of counsel in this regard.
5. Lastly, we must consider the cumulative effect of prejudice resulting from
any actual or assumed deficiencies in counsel’s performance. See Mitchell v. State,
308 Ga. 1, 9 (2) (f) (838 SE2d 820) (2020). “Assessing cumulative prejudice is
necessary only when multiple errors have been shown,” Scott v. State, 309 Ga. 764,
771 (3) (d) (848 SE2d 448) (2020), and as we found in Divisions 1-4, Shelnutt has
not established even one instance in which trial counsel was deficient. Cumulative
24 prejudice is therefore not a ground for affirming the trial court’s grant of a new trial.
See Washington v. State, 313 Ga. 771, 778 (3) (f) (873 SE2d 132) (2022) (cumulative
prejudice was not shown where defendant failed to establish even one instance of
deficient performance).
Judgment reversed. Doyle, P. J., and Reese, J., concur.