318 Ga. 233 FINAL COPY
S23A1024. VENDREL v. THE STATE.
ELLINGTON, Justice.
Luis Vendrel appeals his convictions for malice murder and
possession of a firearm during the commission of a felony in
connection with the shooting death of Nova Jill Saffles.1 Vendrel
1 The crimes occurred on September 26, 2015. On December 7, 2015, an
Effingham County grand jury indicted Vendrel for malice murder, three counts of felony murder, two counts of aggravated assault, and one count each of aggravated battery and possession of a firearm during the commission of a felony. After a jury trial that ended on September 16, 2016, Vendrel was found guilty on all counts. On that same day, Vendrel was sentenced to serve life in prison without the possibility of parole for malice murder and a consecutive five-year prison term for the firearms charge. The trial court purported to merge the remaining counts for sentencing purposes, but the felony murder counts actually stood vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372-373 (4), (5) (434 SE2d 479) (1993); Polke v. State, 315 Ga. 33, 33 n.1 (880 SE2d 153) (2022). Vendrel filed a timely motion for new trial, which he amended through new counsel on June 21, 2019. After a hearing on October 30, 2019, the trial court denied the amended motion for new trial on May 26, 2020. The deadline for filing a notice of appeal, which had been suspended on March 14, 2020, was reimposed as of July 14, 2020. See Mobuary v. State, 312 Ga. 337, 339 (862 SE2d 553) (2021) (A “May 8, 2020 order was entered during the period in which nonconstitutional filing deadlines, including filing requirements that were imposed on litigants by statute and court order, were tolled by the Chief Justice’s March 14, 2020 Order Declaring Statewide Judicial Emergency in response to the COVID-19 pandemic, as extended in subsequent orders. See OCGA § 38-3-62 (a) (10). Pursuant to the Chief Justice’s contends that he suffered a constructive denial of his right to counsel
or otherwise received ineffective assistance of trial counsel. Because
Vendrel has failed to carry his burden of proving either contention,
we affirm.
The State presented evidence at trial showing that, while they
were living together, Vendrel shot Saffles multiple times in the
chest, arm, and face, that he repeatedly confessed to the shooting,
and that he changed his story several times. Saffles was still
July 10, 2020 Fourth Order Extending Declaration of Statewide Judicial Emergency, such deadlines were reimposed effective July 14, 2020.”). Thus, Vendrel was required to file his notice of appeal by August 13, 2020. See OCGA § 5-6-38 (a) (requiring a notice of appeal to be filed within 30 days after the entry of the order finally disposing of a motion for new trial). However, a notice of appeal was not filed until September 29, 2020, and this Court dismissed the appeal, Case No. S21A1105, as untimely on June 21, 2021. A motion for out- of-time appeal was filed in the trial court on November 8, 2021, and was granted on February 28, 2022, and a second, “out-of-time” notice of appeal was filed on March 9, 2022, but in Case No. S22A0871, on May 3, 2022, this Court vacated the order granting an out-of-time appeal and remanded the case for entry of an order dismissing the motion pursuant to Cook v. State, 313 Ga. 471 (870 SE2d 758) (2022). Vendrel then filed a petition for writ of habeas corpus on the ground that he was entitled to an out-of-time appeal because he was denied his right to a direct appeal through the ineffectiveness of his appellate counsel. On March 14, 2023, the habeas court granted relief and ordered that Vendrel would have the right to file a notice of appeal. Vendrel filed a notice of appeal pursuant to that order, and the case was docketed in this Court to the August 2023 term and submitted for a decision on the briefs. 2 married to another man but had separated from her husband when
she and Vendrel began dating and moved into a house together,
along with Saffles’ adult daughter Sierra Seiler. Vendrel often
argued with Saffles. He became upset when she would spend time
with her estranged husband, and Vendrel threatened to kill him. On
September 26, 2015, Saffles and Seiler were out with Saffles’
husband and returned to Vendrel’s and Saffles’ home that evening.
Seiler testified that Vendrel “looked really mad” and “slid his hand
under the pillow” on the bed he shared with Saffles, but Seiler did
not see anything under the pillow. Seiler left the house to go back
out with a friend, and a short time later, a neighbor heard gunshots,
saw someone leave the house and drive away in a Geo Tracker
vehicle, and called 911.
Vendrel subsequently called his sister, and she called 911 and
provided Vendrel’s cell phone number to the dispatcher. The
dispatcher then called Vendrel, who said that he had a gun, “wanted
to kill himself,” had “killed a female,” and was “sorry.” When officers
located Vendrel in a Geo Tracker parked at a friend’s residence,
3 Vendrel would not get out of the vehicle at first, saying that “they
were going to kill him because he had killed her”; that he “shot her
beca[us]e she was married and was cheating on him with her
husband and . . . was going to break up with him and go back to her
husband”; that “even God could not forgive him for what he did”; and
that he “wanted to die because he did not want to go to prison for
the rest of his life.” When Vendrel finally got out of his vehicle, he
was barefooted. The officers arrested him at that time and found a
large revolver in the vehicle.
The deputy who transported Vendrel to the county jail testified
that Vendrel “spontaneously” told her that Saffles “had contacts in
the jail”; said he was “sorry that he shot her”; asked “several times
if she was dead”; told the deputy “spontaneously that the reason he
shot her was because she was . . . playing with his emotions every
Friday and Saturday by telling him that she loved him and was
going to leave her husband to be with him”; and several times said
that he “killed her and . . . was going to prison for life.” Later that
night, when GBI agents interviewed Vendrel, he told them that
4 Saffles had been “off somewhere” with her husband and daughter
“all day long” when “she was supposed to have come home to him.”
Vendrel also said that he had shot and killed Saffles with the
revolver found in his vehicle and that he had two other guns in his
house.
Two days after the shooting, although Vendrel had already
been arrested, a GBI agent returned to the jail for the sole purpose
of serving an arrest warrant on Vendrel to “complete . . . an arrest
record.” At that time, Vendrel stated, without being asked any
questions, that he had “pointed the gun” at Saffles, that she said
“just do it,” and that “the gun fired.” When the agent returned later
to complete an arrest form, Vendrel, again without being
questioned, “kind of made a motion that she had put her hands on
the gun or something like that and then it just fired.” Although
English is not Vendrel’s first language, he “kept trying to tell [the
agent] stuff,” and the agent advised Vendrel to talk to his attorney.
About two months later, the same agent again returned to the
jail to obtain buccal swabs from Vendrel. During that encounter,
5 Vendrel asked if fingerprints had been lifted from his .380-caliber
semi-automatic pistol because “that’s the one that she used . . .
against me. I was defending myself.” The agent again advised him
to talk with his attorney. Another month later, on a recorded phone
call made by Vendrel from the jail, he said that “the first two shots
were into her chest and then the shot to the face was the last shot.”
Officers had discovered Saffles’ body on the kitchen floor of the
house where she and Vendrel lived. Blood was on the walls and floor
in different rooms of the house, including the kitchen door and the
floor near her body. DNA swabs of Vendrel’s feet tested positive for
Saffles’ blood. Officers found, on the passenger seat of Vendrel’s
vehicle, a Taurus Judge .410-caliber revolver, which can fire
shotgun shells as well as bullets. The revolver had a five-shot
cylinder with three live Winchester PDX1 rounds, one spent
Winchester Super X shotgun shell, and one empty chamber. Bullets
and bullet fragments, as well as pellets and wadding from a shotgun
shell, were found in various parts of the house, including the kitchen
and the bedroom. Five shell casings recovered from Vendrel’s and
6 Saffles’ bed were Winchester PDX1 rounds that had been fired from
the Taurus Judge revolver found in Vendrel’s vehicle.
The medical examiner determined that Saffles was shot in her
chest and arm, that “multiple gunshot wounds” caused her death,
and that a large gunshot wound to the right side of her face likely
was inflicted after she was already deceased. The facial wound, from
which wadding and pellets were recovered, was consistent with a
.410 shotgun shell, while the other wounds were consistent with .410
PDX1 Defender rounds. The Taurus Judge revolver was designed to
fire both types of .410-caliber ammunition (as well as .45-caliber Colt
ammunition).
At trial, Vendrel presented three defense witnesses before
testifying in his own defense. The first defense witness, Scott
Shepard, who was Saffles’ co-worker and friend, responded to an
initial inquiry from Vendrel’s trial counsel — “This is the first time
you and I have ever met; is that right, sir?” — by testifying “[t]hat is
correct.” Shepard described an incident involving Vendrel as follows:
the day before Saffles’ death, Shepard had waved at her in her car;
7 Vendrel was in the passenger seat and made an insulting gesture
toward him; Shepard texted Saffles, who answered that it was
Vendrel; Vendrel called Shepard on Saffles’ phone and threatened
him; and Shepard replied that he would “knock [Vendrel’s] teeth
out.” Shepard further testified that he never had any other incidents
with Vendrel; Saffles and Vendrel had arguments with each other
that at times “got bad”; Saffles never asked Shepard for help to leave
the relationship; and Shepard understood that Vendrel “was jealous
that [he] made [Saffles] laugh and that [she and Shepard] had a good
working relationship.”
The second defense witness, Vendrel’s former employer,
testified that Vendrel was a “loner” and a “great worker”; he had
“never seen [Vendrel] harassing anybody”; he would loan money to
Vendrel, who kept his word and “always paid it back”; he had
advised Vendrel and Saffles that their romantic relationship was
“not healthy” and was “not going to work out” as she was still
married; and he was “[v]ery surprised” at the crime because Vendrel
“idolized” Saffles. The third defense witness, Vendrel’s sister,
8 testified that she was aware of problems in his relationship with
Saffles; she counseled Vendrel to leave the relationship because
although he loved Saffles, she was a married woman; Vendrel was
afraid of Saffles’ husband; on the night Saffles was killed, Vendrel
called his sister, was “very distraught” and “upset,” and told her that
he had killed Saffles and was going to kill himself; and she then
called 911.
Vendrel testified in his own defense as follows. On the night of
her death, Saffles smelled like alcohol, started to argue with him,
and became violent. She first picked up the Taurus Judge revolver
and “put it in her mouth.” Vendrel tried to take it away from Saffles,
she aimed it at her face, and he took hold of the gun but “her hand
was on the trigger and it went off,” striking a wall and possibly
injuring her. Saffles then grabbed Vendrel’s .380-caliber pistol and
aimed it at his face. He feared for his life and “tried to stop her” by
firing the revolver at her, hitting her in the chest. Saffles pushed
Vendrel, and he slipped on a rug, fell against a door, and accidentally
fired another round that did not injure Saffles. Vendrel tried to get
9 out of the house, but Saffles grabbed and pushed the door he was
trying to use and pointed the .380-caliber pistol at him very close to
his face. Vendrel then shot Saffles in the middle of her chest, causing
her to fall and drop the .380-caliber pistol. Vendrel returned the
.380-caliber pistol to its holster, put it under the bed where he kept
it, and reloaded the revolver. When Vendrel went past Saffles to
leave the house, she was still alive, she reached up and grabbed the
revolver, he pulled back, and the gun fired accidentally.
After Vendrel was found guilty on all counts and convicted of
malice murder and the firearms charge, he filed a motion for new
trial, and at the hearing on that motion, Vendrel’s trial counsel
testified with respect to his representation as follows. He had
practiced law since 1990, and he had a general trial practice that
included a “heavy” caseload of misdemeanor cases and some felony
cases. He had handled felony jury trials, but this was the first
murder case that he tried as lead counsel. The fact that counsel
speaks Spanish, which is Vendrel’s first language, facilitated the
representation. Counsel reviewed discovery, was aware of ballistics
10 and DNA evidence, and spoke with law enforcement officers who
were witnesses for the State. Counsel decided not to request funds
to hire a ballistics expert or DNA expert because he and Vendrel
understood the evidence, Vendrel’s theory at trial was self-defense,
and, with or without an expert, counsel could ask the same
questions, such as questions pointing out the State’s failure to test
the firearms involved for fingerprints. Counsel met with Vendrel at
the jail “between four and eight” times, spoke with him by phone,
and used Vendrel’s sister as a “go-between.” Counsel took evidence,
including audio and video recordings, to the jail and reviewed it with
Vendrel. Counsel could not play one disc that he received from the
State late one afternoon during the trial (because he did not have
the “proper kind of player” with him that evening), but he asked for
a recess the next morning so that he could play the disc for Vendrel
on a DVD player in a side room at the court. Counsel interviewed
and prepared the defense witnesses prior to trial, but nevertheless
was at times caught “off guard” by their responses to his questions
at trial. Counsel did not specifically identify which individual
11 defense witnesses he interviewed. He discussed the case with
Vendrel, considered several issues like Saffles allegedly “being an
alcoholic or drinking” and Vendrel’s jealousy, and developed a
defense theory with Vendrel, based on his account of the events, that
Saffles “grabbed the gun in an argument in the bed that either was
attempted suicide by her or by him, and the gun went off,” followed
by her chasing him around the house. Counsel discussed with
Vendrel the conflicts between his testimony and the State’s
evidence, but Vendrel was “determined to testify.” About the
evidence from the medical examiner that the gunshot to Saffles’ face
likely occurred after her death, counsel “figured the jury could say
. . . [the] doctor could be a few minutes off.”
1. Citing United States v. Cronic, 466 U. S. 648, 659 (III) (104
SCt 2039, 80 LE2d 657) (1984), Vendrel first contends that trial
counsel failed to subject the State’s case to adversarial testing in any
meaningful way and that this failure amounted to a constructive
denial of Vendrel’s right to the assistance of counsel.
To obtain relief based on ineffective assistance of counsel, a
12 defendant generally must show both that his counsel’s performance
was constitutionally deficient and that this deficient performance
prejudiced him. See Strickland v. Washington, 466 U. S. 668, 687
(III) (104 SCt 2052, 80 LE2d 674) (1984). Cronic’s exception to the
general Strickland standard for a “constructive denial of the
assistance of counsel altogether,” which is “legally presumed to
result in prejudice,” id. at 692 (III) (B), is “a narrow one that applies
only when there was a breakdown in the adversarial process, such
that counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.” Wainwright v. State, 305 Ga. 63, 68
(3) (823 SE2d 749) (2019) (citation and punctuation omitted). When
the United States Supreme Court “spoke in Cronic of the possibility
of presuming prejudice based on an attorney’s failure to test the
prosecutor’s case, [it] indicated that the attorney’s failure must be
complete.” Roberts v. State, 305 Ga. 257, 267 (6) (824 SE2d 326)
(2019) (citation and punctuation omitted). Thus, the attorney’s
failure “must occur throughout the proceeding and not merely at
specific points.” Wainwright, 305 Ga. at 68 (3) (citation and
13 punctuation omitted). Allegations that trial “counsel was ineffective
at specific points of [the] trial do not meet this stringent standard.”
Burrell v. State, 301 Ga. 21, 23 (2) (799 SE2d 181) (2017). See also
Charleston v. State, 292 Ga. 678, 683 (4) (a) (743 SE2d 1) (2013) (A
defendant’s “assertion that his trial counsel failed to act as an
advocate on several occasions does not meet this stringent
standard.” (punctuation omitted)).
Vendrel argues that his trial counsel’s failure was complete, as
he was ill-prepared, failed to develop a coherent strategy or
plausible theory of the case, did nothing to prepare the defense
witnesses, and introduced evidence that bolstered the State’s case.2
But the record does not support his contention. To the contrary, the
record shows that counsel engaged in discovery and filed pre-trial
2 In the statement of facts in his appellate brief, Vendrel asserts that
counsel had practiced very little criminal law. But counsel’s testimony at the hearing on the motion for new trial, as summarized above, shows that although he had not tried a murder case as lead counsel, he did have significant experience in criminal practice. Moreover, “[t]he mere fact that the attorney may have been relatively inexperienced falls far short of demonstrating a complete failure of the adversarial process.” Dulcio v. State, 292 Ga. 645, 650 (3) (a) (740 SE2d 574) (2013). 14 motions.3 And the transcript shows that counsel interviewed the
State’s witnesses, interviewed and prepared defense witnesses,
cross-examined most of the State’s witnesses, and presented a
theory of the case that was consistent with Vendrel’s trial testimony.
Under these circumstances, it cannot be said that counsel
completely failed to test the State’s case throughout the proceeding.
Even assuming (without deciding) that counsel failed to act as an
advocate on certain occasions, Vendrel has failed to establish that
counsel failed to subject the State’s case to adversarial testing in any
meaningful way and therefore does not meet the stringent standard
that raises a presumption of prejudice pursuant to Cronic. As a
result, Strickland’s two-part test remains the appropriate standard
to evaluate Vendrel’s claim of ineffective assistance. See Williams v.
State, 305 Ga. 776, 783 (2) (e) (827 SE2d 849) (2019) (“Even if [the
defendant’s] trial counsel failed to act as an advocate on the several
3 More specifically, counsel elected to proceed under reciprocal discovery
and filed general demurrers, a motion for a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964), and a motion to suppress Vendrel’s statements. 15 occasions specified, [the defendant’s] assertion that his counsel
entirely failed to subject the State’s case to adversarial testing does
not meet the stringent standard that merits a presumption of
prejudice under Cronic, and therefore Strickland’s two-part test
remains the appropriate standard to evaluate his claims of
ineffective assistance.”). Accordingly, we turn to Vendrel’s
contention that counsel’s “discrete errors . . . still require reversal.”
2. Vendrel specifically contends that his trial counsel was
constitutionally ineffective in three ways. To satisfy the deficiency
prong of the Strickland test, the defendant “must show that his
attorney performed at trial in an objectively unreasonable way
considering all the circumstances and in light of prevailing
professional norms.” Lofton v. State, 309 Ga. 349, 360 (6) (846 SE2d
57) (2020). “This requires a defendant to overcome the strong
presumption that counsel’s performance fell within a wide range of
reasonable professional conduct, and that counsel’s decisions were
made in the exercise of reasonable professional judgment.” Scott v.
State, 306 Ga. 417, 419-420 (2) (831 SE2d 813) (2019) (citation and
16 punctuation omitted). “Decisions regarding trial tactics and strategy
may form the basis for an ineffectiveness claim only if they were so
patently unreasonable that no competent attorney would have
followed such a course.” Thomas v. State, 311 Ga. 706, 714 (2) (a)
(859 SE2d 14) (2021) (citation and punctuation omitted). The
defendant must also show that the deficient performance prejudiced
the defense, which requires showing that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U. S.
at 694 (III) (B). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. If an appellant fails to
show either deficiency or prejudice, this Court need not examine the
other prong of the Strickland test. See DeLoach v. State, 308 Ga.
283, 287-288 (2) (840 SE2d 396) (2020).
(a) Vendrel contends that he was denied the effective
assistance of trial counsel when trial counsel failed to interview the
defense witnesses before trial, which Vendrel says resulted in his
counsel inadvertently eliciting testimony on direct examination
17 about the volatile nature of Vendrel’s relationship with Saffles.
Vendrel argues that such testimony was detrimental to any
conceivable defense and would have been excluded as inadmissible
character evidence if offered by the State, and that any reasonable
interview would have revealed that counsel should not have called
the witnesses. Although the record contains evidence that counsel
had not met Shepard before trial, and does not specifically show that
counsel had interviewed Shepard, we have not found any indication
in the record that counsel failed to interview the other defense
witnesses, and Vendrel has not provided any citation to the record
in support of that claim. To the contrary, counsel testified that he
did interview and prepare defense witnesses. And, although the trial
court made no express factual findings or credibility determinations
in its order denying Vendrel’s motion for new trial, we presume that
the trial court implicitly credited counsel’s testimony in making its
decision. See Anthony v. State, 311 Ga. 293, 297 (3) (857 SE2d 682)
(2021) (“Although the trial court made no express factual findings or
credibility determinations in its order denying [the defendant’s]
18 motion for new trial, it was nonetheless authorized to credit the
testimony of [his trial] counsel, and in the absence of explicit factual
and credibility findings by the trial court, we presume implicit
findings were made supporting the trial court’s decision.
Accordingly, even though [the defendant’s] testimony contradicted
that of his counsel, the trial court implicitly credited counsel’s
version of events when it denied [the defendant’s] ineffective
assistance claim, and we accept the trial court’s factual findings.”
(citations and punctuation omitted)). Thus, with respect to the
defense witnesses other than Shepard, Vendrel has failed to make
any showing that counsel’s performance was deficient. See Young v.
State, 317 Ga. 57, 64 (3) (c) (891 SE2d 827) (2023) (Because the
defendant provided no citation to the record in support of his claim
that trial counsel failed to timely request a hearing on his motion to
suppress certain evidence and it does not appear that a
particularized motion to suppress that evidence was ever filed,
“counsel cannot be deficient for failing to request a timely hearing
on a non-existent motion,” and the defendant “has failed to show
19 that counsel’s performance was deficient in this respect, and has not
carried his burden of demonstrating that his trial counsel was
constitutionally ineffective.” (citation and punctuation omitted));
Lord v. State, 304 Ga. 532, 540 (7) (a) (820 SE2d 16) (2018) (Because
the defendant’s contention regarding the nature of certain testimony
to which trial counsel failed to object was “not factually supported
by the transcript,” any objection for the reasons argued by the
defendant would be misplaced and meritless, and therefore could not
amount to ineffective assistance.); Schutt v. State, 292 Ga. 625, 628
(3) (a) (740 SE2d 163) (2013) (holding that the trial court was
entitled to credit trial counsel’s testimony that he met with the
defendant’s parents and prepared them for their testimony).
As for the alleged failure to interview Shepard, even assuming
that trial counsel’s performance was deficient in that regard,
Vendrel has failed to show prejudice. Although Vendrel has
suggested that counsel would not have called Shepard if counsel had
“even briefly interviewed” Shepard, Vendrel has not explained how
omitting Shepard’s testimony would have been reasonably likely to
20 lead to a different outcome. See Harris v. State, 314 Ga. 370, 374 (2)
(a) (877 SE2d 255) (2022) (“A defendant claiming that his counsel
was underprepared must show that more preparation might have
produced something that would have made a difference in the
outcome of his trial. . . . [The defendant] has not explained how [a]
different approach was reasonably likely to lead to a difference in
the outcome of the trial.” (citation and punctuation omitted)).
Moreover, we are unable to discern a reasonable probability of a
different result at trial. Shepard testified to an insulting gesture and
threatening phone contact from Vendrel the day before Saffles’
death, apparently related to Shepard’s relationship with Saffles.
Shepard’s testimony, however, was consistent with other testimony
about problems in the relationship between Saffles and Vendrel,
including further testimony by Shepard regarding Saffles’ and
Vendrel’s “bad” arguments with each other, that laid groundwork
for the defense theory of justification. And the evidence of Vendrel’s
guilt — especially his multiple confessions and changing stories,
ballistics evidence, and the medical examiner’s testimony — was
21 overwhelming. See Talley v. State, 314 Ga. 153, 162-163 (3) (a) (875
SE2d 789) (2022) (Although evidence of the defendant’s threat
against the victim that was related to a criminal enterprise “might
have reflected negatively on [the defendant], even if objectionable, it
was not particularly disparaging of [his] character when viewed in
context, especially given the strength of the other admissible
evidence against him.” (citation and punctuation omitted)).
(b) Vendrel also contends that his trial counsel rendered
ineffective assistance by failing to prepare Vendrel to testify,
resulting in the abandonment of any lawful defense that he might
have had. According to Vendrel, counsel did not meet with him
before trial to prepare him to testify or discuss his right not to testify
and, more specifically, did not discuss the State’s evidence or its
strength or caution him not to vilify the victim, but instead relied on
Vendrel’s sister to pass information back and forth. Once again,
however, Vendrel has not shown that these claims are factually
supported in the record, and counsel’s testimony contradicted
Vendrel’s claims. Indeed, Vendrel did not testify at the hearing on
22 his motion for new trial, while his trial counsel testified about
several meetings with Vendrel, in person and by phone, at which
counsel discussed the State’s evidence, discovered that Vendrel was
“determined to testify,” and developed a theory of self-defense based
on Vendrel’s account of the events. Moreover, evidence was
presented at trial that supported the theory of self-defense, and
Vendrel has not identified any other defense theory that counsel
should have pursued. Vendrel therefore has failed to make any
showing that counsel’s performance was constitutionally deficient.
See Young, 317 Ga. at 64 (3) (c); Wilson v. State, 313 Ga. 319, 323-
324 (2) (b) (869 SE2d 384) (2022) (“Because some evidence supported
the defense theory, and there was no other obviously stronger
defense theory available, Appellant has not shown trial counsel’s
decision to be patently unreasonable.”); Owens v. State, 298 Ga. 813,
817 (4) (783 SE2d 611) (2016) (Trial counsel “both honor[ed] [the
defendant’s] right to testify and preserve[d] her defense to the extent
possible. Accordingly, trial counsel’s performance was not deficient
in this case.”); Funes v. State, 289 Ga. 793, 796-797 (3) (c) (716 SE2d
23 183) (2011) (“The trial court’s decision to credit [trial counsel’s]
account of Appellant’s preparation to testify was not clearly
erroneous, and we cannot conclude that this level of preparation fell
below the broad range of reasonable professional conduct.” (citations
and punctuation omitted)).
(c) Vendrel contends that his trial counsel was ineffective for
failing to conduct factual research or consult with experts to prepare
to challenge the prosecution’s forensic evidence, which was crucial
to the State’s case. Vendrel argues that, as a result, counsel was
unable either to call his own experts in rebuttal or to cross-examine
the State’s experts intelligently. However, even assuming Vendrel
has shown that counsel was deficient in preparing for the State’s
expert witnesses, Vendrel has altogether failed to establish any
prejudice. At the hearing on his motion for new trial, Vendrel did
not present any testimony or affidavit of an expert witness to
substantiate his claim that relevant and favorable expert testimony
could have been presented to the jury in rebuttal of the State’s
experts. See Pauldo v. State, 317 Ga. 433, 437 (1) (a) (893 SE2d 633)
24 (2023) (“It is well established that a defendant fails to establish
prejudice under Strickland when he merely contends that trial
counsel was deficient for failing to present an expert, without also
presenting evidence at the motion-for-new-trial hearing about what
the potential expert would have testified to at trial.”); Allen v. State,
317 Ga. 1, 11 (4) (b) (890 SE2d 700) (2023) (To make the required
affirmative showing of the prejudicial effect of trial counsel’s failure
to call a witness, “[e]ither the uncalled witness must testify or the
defendant must introduce a legally recognized substitute for the
uncalled witness’s testimony.” (citation and punctuation omitted));
Patterson v. State, 314 Ga. 167, 178 (2) (g) (875 SE2d 771) (2022)
(“Appellant failed to present an expert witness to testify at the
motion-for-new-trial hearing to substantiate his claim that the
witness’s testimony would have been relevant and favorable to his
defense. Therefore, Appellant has failed to show that there is a
reasonable probability the result of his trial would have been
different because there is no evidence as to how a potential expert
witness would have testified.”). Likewise, Vendrel has failed either
25 to show how the State’s expert witnesses should have been cross-
examined or to call any of those witnesses at the motion-for-new-
trial hearing to demonstrate how their testimony would have
differed if cross-examination had been different. See Harris, 314 Ga.
at 374 (2) (a) (holding that the defendant failed to show “any
prejudice arising from any lack of preparation on counsel’s part” for
the testimony of a witness for the State, where the defendant had
“not even suggested what avenues his trial counsel left unexplored
in his cross-examination, and [the witness] did not testify at the
hearing on [the defendant’s] motion for new trial”).
3. Vendrel contends that the cumulative effect of his trial
counsel’s alleged deficient performance in this case caused actual
prejudice to the defense. In Division 2, we assumed counsel’s
performance was deficient in two ways — failing to interview
Shepard and failing to prepare for the State’s expert witnesses —
but concluded that Vendrel failed to establish that either assumed
error of counsel prejudiced his defense. Vendrel also has not shown
that these two assumed deficiencies, considered together, created a
26 reasonable probability that the results of the proceeding would have
been different in their absence, so his claim of cumulative prejudice
fails as well. See Allen, 317 Ga. at 13 (4) (f).
Judgment affirmed. All the Justices concur.
Decided February 6, 2024.
Murder. Effingham Superior Court. Before Judge Johnson.
Cathy M. Alterman, for appellant.
Daphne J. Totten, District Attorney, Keith A. McIntyre,
Matthew Breedon, Brian A. Deal, Assistant District Attorneys;
Christopher M. Carr, Attorney General, Beth A. Burton, Deputy
Attorney General, Clint C. Malcolm, Senior Assistant Attorney
General, Elizabeth Rosenwasser, Assistant Attorney General, for
appellee.