308 Ga. 508 FINAL COPY
S20A0056. SULLIVAN v. THE STATE.
WARREN, Justice.
A jury convicted Antonio Sullivan of malice murder and other
crimes in connection with the shooting death of Wava Benton.1 On
appeal, Sullivan contends that his trial counsel was constitutionally
ineffective by failing to present evidence at trial to corroborate
Sullivan’s testimony about prior difficulties between Sullivan and
Benton, and by failing to procure expert testimony about Sullivan’s
mental health — specifically about post-traumatic stress disorder —
1 The crimes occurred on May 7, 2013. A Fulton County grand jury indicted Sullivan on September 17, 2013, charging him with malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. At a trial held from March 14 to 16, 2016, the jury found Sullivan guilty of all counts. The trial court sentenced Sullivan to life in prison for the malice murder count and a consecutive term of five years, suspended, for the firearm count; the remaining counts were merged or vacated by operation of law. Sullivan filed a timely motion for new trial on March 21, 2016, which he amended multiple times through new counsel. After a hearing, the trial court denied the motion, as amended, on February 28, 2019. On March 15, 2019, Sullivan filed a timely notice of appeal, and the case was docketed in this Court for the term beginning in December 2019 and submitted for a decision on the briefs. to be presented to the jury. Because Sullivan has failed to establish
that his trial counsel was deficient in either respect, we affirm his
convictions.
1. There is no dispute in this case that Sullivan shot and
killed an unarmed Benton at the Caribou Apartment complex;
multiple eyewitnesses testified that they saw Sullivan shoot Benton,
and Sullivan himself admitted it on the stand and continues to
admit it on appeal.2 Viewed in the light most favorable to the jury’s
verdicts, additional evidence presented at Sullivan’s trial showed
the following. On the day of Benton’s murder, the regional manager
of the Caribou Apartment complex, who was sitting in the leasing
office, heard a gunshot. When he looked out the window, he saw one
man running “in a zigzag” while another man was running behind
him shooting. According to the regional manager, the man running
in a zigzag got “hit and he went down. . . . And then I saw the shooter
go up to the victim one more time and fire one more round and then
2 On appeal, Sullivan acknowledges that “the jury heard more than sufficient evidence that Mr. Sullivan pulled the trigger.” took off.” From the leasing office window, the assistant manager of
the complex saw one man running and “then a couple of seconds
later I see the man shooting behind him. He must have hit him
because he fell on the ground and after that I see him walk up to
him and shoot him in the head; popped his hoodie on and took off
running.” The assistant manager positively identified Sullivan from
a photographic lineup as the shooter.
Two residents of the apartment complex who witnessed the
shooting also testified at trial. One of the residents testified that
she heard a sound like “fire crackers,” looked out of her apartment
window, and “saw a boy running . . . . And I saw another boy
running; shot him in the back. . . . The boy fell, and then he walked
up and shot the boy in the head.” That resident also positively
identified Sullivan from a photographic lineup as the shooter. The
other resident testified, “I saw two men running and one fell and the
shooter stood over him and shot him two times.” She also positively
identified Sullivan from a photographic lineup as the shooter.
Sullivan testified in his own defense at trial, and his was the only testimony or evidence the defense presented. He testified that
in 2008, Benton and one of Benton’s associates robbed Sullivan at
gunpoint. Sullivan also suggested that in early 2013, while Benton
was incarcerated, Benton, through his associates, continued to
intimidate Sullivan, demanding that Sullivan “put some money on
[Benton’s] books or something,” and emphasizing that “once they got
you, they really got you,” and they “keep coming at you until you
can’t take no more.” Sullivan also testified that after Benton got out
of prison, Sullivan saw Benton at a gas station about a week before
the crimes occurred, and Benton told Sullivan, “if you going to be
around here,” but not “shop[ ] for drugs” from Benton’s street gang,
then you have to “pay your homage,” which Sullivan understood to
mean “you’ve got to give him money; got to give him something.”
Sullivan testified that on the day of the shooting, he was
leaving the Caribou Apartment complex when Benton and “like five
other guys” (all of whom Sullivan said he had seen with guns in the
past) confronted him. Benton said to Sullivan, “didn’t I tell you not
to come around here unless you going to buy from us,” and to “give me what you got,” before Benton “grabbed from [Sullivan’s] pocket.”
Sullivan then saw one of the other men “displaying [a] gun,” so
Sullivan “snatched back and grabbed [his own] firearm off of [his
own] waist.” Sullivan testified that “[Benton] grabbed my wrist.
And as we struggle I fired. I kept firing. He struggled and I kept
firing. . . . When I fired the gun went off and he just let go, just ran.”
Sullivan testified that when Benton ran, “I chased behind him.”
According to Sullivan, he was shooting as he was chasing Benton.
Sullivan testified, “I wasn’t thinking. I was just tired.” Sullivan
further testified that at some point, Benton fell to the ground, and
then “I just shot him. I stood over him and shot him.”
As to his mental state during the incident, Sullivan testified
that he pulled his weapon in the first place because he was “tired.
[Benton] going to keep coming. . . . It’s not going to stop,” and that
Sullivan was “scared for my life. Scared if I don’t — if I don’t deal
with it, it’s already done. . . . You either do what you got [to] do or
you going to get got or your family going to get got.” And Sullivan
testified that based on his past experience with Benton, “[Benton] always had a gun.” Sullivan admitted that he never saw Benton
with a gun that day. And in a custodial interview conducted over a
month after the crimes, Sullivan admitted to a detective that he shot
Benton, would do it again, and would “piss on [Benton’s] grave.”
Sullivan does not contest the legal sufficiency of the evidence
supporting his convictions. Nevertheless, in accordance with this
Court’s general practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial and summarized
above was sufficient to authorize a rational jury to find Sullivan
guilty beyond a reasonable doubt of the crimes for which he was
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979).
2. Sullivan raises one enumeration of error: that his trial
counsel was constitutionally ineffective in two ways: (a) by failing to
present the testimony of other witnesses at trial to corroborate
Sullivan’s testimony about prior difficulties between Sullivan and
Benton, and (b) by failing to procure expert testimony about Sullivan’s mental health to be presented to the jury.
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. Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a
defendant must demonstrate that his attorney “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 (745 SE2d 637) (2013); see also Strickland, 466
U.S. at 687-688. This requires a defendant to overcome the “strong
presumption” that trial counsel’s performance was adequate.
Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation
and punctuation omitted). To satisfy the prejudice prong, a
defendant must establish a reasonable probability that, in the
absence of counsel’s deficient performance, the result of the trial
would have been different. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “If an appellant fails to meet his or
her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.”
Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
Ineffectiveness claims involve mixed questions of law and fact, and
“a trial court’s factual findings made in the course of deciding an
ineffective assistance of counsel claim will be affirmed by the
reviewing court unless clearly erroneous,” Green v. State, 302 Ga.
816, 818 (809 SE2d 738) (2018) (citation and punctuation omitted),
whereas conclusions of law based on those facts are reviewed de
novo. See Bright v. State, 292 Ga. 273, 274 (736 SE2d 380) (2013).
(a) Sullivan contends that his trial counsel was
constitutionally ineffective because he failed to call witnesses to
corroborate Sullivan’s trial testimony about Benton’s prior threats
to, and harassment of, Sullivan. According to Sullivan, calling
witnesses other than himself would have supported the defense’s
theory that Sullivan acted in self-defense or was guilty of only voluntary manslaughter. He argues that such evidence was all the
more important given that there was no doubt that Sullivan killed
Benton in what appeared to be an especially cruel manner.
But “[a] decision as to which defense witnesses to call is a
matter of counsel’s trial strategy and tactics and will not support a
claim of ineffective assistance of counsel unless it is so unreasonable
that no competent attorney would have made the decision under the
circumstances.” Neely v. State, 302 Ga. 121, 125 (805 SE2d 18)
(2017) (citation and punctuation omitted). And at Sullivan’s motion
for new trial hearing, trial counsel testified that after receiving a list
of potential witnesses from Sullivan and members of his family, trial
counsel talked to “between six to eight” potential witnesses,
considered each of them, and ultimately made the choice not to call
any of them at trial. Trial counsel further explained that although
“there could be value” in calling witnesses to corroborate Sullivan’s
testimony, there was also a risk that their testimony could include
information that “might not be in the best interest of the client,” and
that trial counsel would have made his decision on who to call by considering “who’s the witness, what did they have to offer and what
risk . . . is associated with presenting them.” Moreover, at the
hearing on his motion for new trial, Sullivan called only one witness
to support his claim that trial counsel was ineffective for failing to
call corroborating witnesses at trial — a friend who testified that he
did not witness the 2008 incident when Benton robbed Sullivan, but
that he recalled speaking with Sullivan shortly after that incident
and that Sullivan was “very mad,” arguably supporting trial
counsel’s concerns about the risk of calling such witnesses.
Although trial counsel could have chosen to call additional
witnesses, we cannot conclude on this record that his tactical
judgment here “was outside the wide range of reasonably effective
assistance.” Arnold v. State, 292 Ga. 268, 272 (737 SE2d 98) (2013)
(citation and punctuation omitted); see also, e.g., Neely, 302 Ga. at
125-126 (where, at the defendant’s motion for new trial hearing, he
called only one of the multiple witnesses that he claimed trial
counsel should have called at trial, and “trial counsel offered a
considered, informed, and reasonable explanation for the decision not to call witnesses, . . . this Court cannot say that this decision was
outside the range of reasonable professional assistance,” given the
“highly deferential” scrutiny we must apply to counsel’s
performance) (citation and punctuation omitted); Johnson v. State,
295 Ga. 421, 426 (761 SE2d 13) (2014) (trial counsel’s decision not
to call any witnesses based, in part, on fear of inconsistencies in
testimony, was reasonable); Hall v. State, 292 Ga. 701, 704-705 (743
SE2d 6) (2013) (trial counsel’s decision not to call any witnesses,
after speaking with five potential witnesses, was a reasonable trial
strategy).
And although Sullivan urges us on appeal to disbelieve trial
counsel’s assertions that he talked to potential witnesses and
decided not to call them at trial, the trial court specifically found
that trial counsel “spoke to multiple possible witnesses, whom he
ultimately declined to call at trial.” Because this finding is
supported by the record, it is not clearly erroneous, and we decline
Sullivan’s invitation to conclude otherwise. See Green, 302 Ga. at
818. Because Sullivan has not met his burden of demonstrating that trial counsel’s performance was deficient, his claim fails.
(b) Sullivan contends that trial counsel’s failure to procure
and present to the jury expert testimony about Sullivan’s mental
health and its effect on his criminal responsibility constituted
constitutionally ineffective assistance of counsel. In an effort to
establish this claim, Sullivan relies on the testimony of an expert
offered at his motion for new trial hearing who diagnosed Sullivan
with post-traumatic stress disorder. Sullivan argues that it was
necessary for the jury to hear expert testimony about his post-
traumatic stress diagnosis to properly evaluate his criminal liability
in this case.
But “the decision whether to present an expert witness,” like
other decisions about which defense witnesses to call, “is a matter of
trial strategy that, if reasonable, will not sustain a claim of
ineffective assistance.” Matthews v. State, 301 Ga. 286, 289 (800
SE2d 533) (2017). Indeed, for a defendant to establish that a
strategic decision constitutes deficient performance, a defendant
“must show that no competent attorney, under similar circumstances, would have made it.” Martin v. State, 306 Ga. 747,
751 (833 SE2d 122) (2019) (citation and punctuation omitted).
“Moreover, 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.”
Stripling v. State, 304 Ga. 131, 138 (816 SE2d 663) (2018) (citation
and punctuation omitted).
Here, Sullivan’s family advised Sullivan’s counsel before trial
that Sullivan had a history of mental health issues, and trial counsel
obtained and reviewed Sullivan’s mental health records from Grady
Hospital and from the Fulton County jail. As part of his preparation
for trial, trial counsel also requested and obtained a psychiatric
evaluation to determine whether Sullivan “was mentally competent
at the time of the alleged incident,” and whether Sullivan was
“competent to assist counsel and to stand trial.” The psychiatrist
who completed Sullivan’s evaluation concluded that although
Sullivan suffered from depression, cannabis use disorder, methamphetamine use disorder, and antisocial personality disorder,
“at the time of the offense his mental illness did not affect his
criminal responsibility” and “at the time of the evaluation, Mr.
Sullivan was competent to stand trial.”
At Sullivan’s motion for new trial hearing, trial counsel
acknowledged that in the course of preparing for trial, he came to
believe that Sullivan’s mental health issues might be relevant to his
defense. Trial counsel testified that he remembered receiving and
reviewing Sullivan’s psychiatric evaluation, and that “part of the
purpose of reviewing it is to determine whether or not to call
someone, so I would have reviewed it for that purpose, yes, but I
don’t recall specifically what I decided and why.” Trial counsel
confirmed that he did not consult further with mental health experts
or pursue a mental health defense. About that decision, he testified,
“I know ultimately I would have decided that it wasn’t something
necessary or that would otherwise be in front of [the] jury if it was
necessary, but I don’t remember specifically as to why, why I
determined that it wouldn’t be necessary or admissible,” but it would have been a “conscious” decision on his part.
We have explained before that, generally speaking in non-
capital cases, a trial counsel’s “decision to forego or curtail” further
investigation of an accused’s mental health, “even when there has
been a previous mental hospitalization[,] is reasonable when an
expert has determined that the defendant is fit to stand trial or that
he was sane at the time of the offense.” Whitus v. State, 287 Ga. 801,
803-804 (700 SE2d 377) (2010) (citation and punctuation omitted).
Here, the expert who performed Sullivan’s psychiatric evaluation
concluded that Sullivan was “competent to stand trial” and was
competent “at the time of the offense.” Moreover, the trial court
concluded that trial counsel did not perform deficiently in part
because trial counsel “obtained mental evaluations [and] consulted
medical records.”3 Given this record, even if “other attorneys might
3 To the extent that Sullivan would seek to offer evidence of post- traumatic stress caused by trauma or abuse that was not inflicted by Benton to support the defense that he was justified in defending himself from Benton, or would seek to offer evidence of a mental disability to support some defense other than insanity, see OCGA § 16-3-2, delusional compulsion, see OCGA § 16-3-3, or self-defense based on battered person syndrome, see OCGA § 16-3- 21 (d), such evidence would be inadmissible. See Virger v. State, 305 Ga. 281, 297-304 (824 SE2d 346) (2019). have explored the mental issue further, we cannot conclude that the
investigation by and tactical judgment of Appellant’s attorney was
outside the wide range of reasonably effective assistance.” Id. at 804
(citation and punctuation omitted); see also, e.g., Whitus, 287 Ga. at
804 (trial counsel who “requested and obtained a full psychiatric
evaluation of Appellant” was not deficient for relying on that
evaluation and deciding not to request additional testing or to
pursue an insanity defense); Arnold, 292 Ga. at 269-271 (where trial
counsel “obtained and reviewed the available mental health records,
discussed the matter with a mental health professional who
previously had evaluated and treated [the defendant], and
confirmed that [the defendant] had received no additional treatment
for mental health issues,” trial counsel’s strategic decision to not
obtain a psychological evaluation to assess the defendant’s
“competence to stand trial, [and] whether he might have a viable
insanity defense” was not deficient); cf. Scott v. State, 301 Ga. 573,
576-578 (802 SE2d 211) (2017) (where trial counsel was aware that
defendant “was extraordinarily distraught after shooting [the victim] and repeatedly implored responding officers to shoot and kill
her,” and where defendant’s “family suggested to trial counsel that
she had mental illness and gave him medical records” reporting a
“history of serious mental illness related to violence against the
same person on a prior occasion” and that she had previously
“hear[d] a voice telling her to ‘kill,’” counsel’s decision to forgo a
mental evaluation of defendant based on counsel’s own interactions
with her was unreasonable and therefore deficient).
Although Sullivan complains that trial counsel should have
“explain[ed] how his client’s mental health condition would have
fueled his fear of Benton and his criminal company,” and that “more
was needed,” this is not a case where trial counsel “‘made no effort’
to investigate the potential for a defense . . . based on mental health
issues” or “relied exclusively upon [his] own lay evaluation of the
mental health of [his] client.” Arnold, 292 Ga. at 271 (citation
omitted; emphasis in original). And Sullivan’s presentation of new
expert testimony at the motion-for-new-trial stage diagnosing him
with post-traumatic stress disorder and opining about its potential effect on Sullivan’s mental state when he shot and killed Benton
does not transform trial counsel’s constitutionally adequate
performance into deficient performance. See Matthews, 301 Ga. at
288-289 (defendant’s presentation of expert testimony at motion for
new trial hearing did not demonstrate that trial counsel’s decision
to not engage and present an expert witness at trial was deficient).
Sullivan’s claim of ineffective assistance of counsel therefore fails.
Judgment affirmed. All the Justices concur.
DECIDED APRIL 20, 2020. Murder. Fulton Superior Court. Before Judge Dunaway. Lauren B. Shubow, Stephen R. Scarborough, for appellant. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.