317 Ga. 822 FINAL COPY
S23A0893. WATERS v. THE STATE.
LAGRUA, Justice.
Appellant Roy Lee Waters was found guilty but mentally ill of
felony murder in connection with the shooting death of Melvina
Dunlap.1 On appeal, Waters contends that the evidence was
insufficient to support his conviction, the trial court erroneously
denied Waters’s motion for a new trial on the “general grounds,” and
his trial counsel provided constitutionally ineffective assistance by
failing to further investigate Waters’s insanity defense. For the
reasons that follow, these claims fail, and we affirm Waters’s
1 The crimes occurred on November 25, 2013. On February 20, 2014, a
Laurens County grand jury indicted Waters for malice murder (Count 1), felony murder (Count 2), and two counts of aggravated assault (Counts 3 and 4). At a trial in September 2019, the jury acquitted Waters of malice murder and found him guilty but mentally ill on the remaining charges. The trial court merged the two counts of aggravated assault into the felony murder count and sentenced Waters to serve life in prison with the possibility of parole. Waters filed a timely motion for new trial, which was amended through new counsel. After holding an evidentiary hearing, the trial court denied the motion for new trial on March 30, 2023. Waters filed a timely notice of appeal, and his case was docketed to this Court’s August 2023 term and submitted for a decision on the briefs.
1 conviction.
The evidence presented at trial showed that in the early
morning hours of November 25, 2013, Waters, who was around 72
years old at the time, shot and killed Dunlap, his longtime girlfriend,
in their shared bedroom. After the shooting, Waters admitted in
calls he placed to his pastor and one of his brothers that he shot
Dunlap. In a call placed to another brother, Waters said,
“[S]omething happen[ed],” and that he was “in trouble.”
An ambulance responded to the home of Waters and Dunlap
based on “a medical call.” When the EMT entered the home, Waters
directed the EMT to the back bedroom, stating, “I shot her.” The
EMT discovered Dunlap’s body in the bedroom, and the medical
examiner later determined that Dunlap’s cause of death was three
gunshot wounds to the face and torso.
Shortly after the ambulance arrived, a sheriff’s deputy entered
the home and asked Waters, who was reading the Bible, what
happened; Waters responded that he “had been dealing with them
for a while.” Police recovered a Rossi .32-caliber pistol and four shell
2 casings from the floor of the bedroom. Waters was arrested, and a
gunshot residue test was performed on his hands; it was positive for
the presence of gunshot residue. After Waters was read his
Miranda2 rights, he agreed to speak with police. In Waters’s
interview, he admitted that he shot Dunlap, but he struggled to
explain why he had done so. Waters stated that he and Dunlap had
gone to church the previous morning and “something happened in
church and [he] couldn’t figure out what it was,” but “it was eating
[him] up and tearing [him] up.” Waters later stated that he shot
Dunlap because she “did [him] wrong” by refusing to marry him and
that he did not want to hurt her.
At trial, Waters asserted an insanity defense. During its case-
in-chief, the State presented Dr. Elliott Currence, a forensic
psychologist at Central State Hospital, as an expert in the field of
forensic psychology, and he was admitted as an expert without
objection. Dr. Currence testified that he evaluated Waters to
determine whether he was criminally responsible at the time of the
2 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
3 act, which Dr. Currence explained was an assessment to determine
a person’s mental state at the time of the alleged crime. Dr. Currence
explained that for a person to be found insane or not criminally
responsible at the time of the act, mental illness symptoms “have to
be severe enough to result in an inability to know that what you’re
doing is wrong or you’re so mentally ill that you’re not able to control
your behavior; you have a delusional compulsion.” Dr. Currence
elaborated that for such people the “illness is so severe that they
have no idea that what they’re doing is wrong or they have an
inability to stop themselves from doing it.”
Dr. Currence noted that Waters “ha[d] a history of outpatient
treatment for schizophrenia before [the shooting].” After the
shooting, Waters was “psychiatrically hospitalized” at Central State
Hospital, documented as “being paranoid,” and later discharged
with diagnoses of schizophrenia and alcohol dependence.
Dr. Currence interviewed Waters twice. Regarding the
shooting, Waters stated, “I don’t know what happened when I shot
[Dunlap], I was home, she was there, and the next thing I just had
4 a gun in my hand and she was shot.” Waters further explained:
“After [Dunlap] was shot, I called my brother and I called a pastor.
I just wanted to call my people and let them know that something
bad happened. I know I needed help and I guess maybe they could
help me.” Dr. Currence testified that these phone calls after the
shooting were “indicative of [Waters’s] awareness of wrongfulness.”
Dr. Currence also testified that Waters’s lack of a clear memory of
what occurred was “not uncommon” among people with and without
a history of mental illness.
When Dr. Currence asked Waters whether he had any previous
mental health issues, Waters responded that he had “bad nerves,”
for which he was prescribed medication. According to Dr. Currence,
Waters did not describe any delusions and he did not appear to have
any irrational thoughts. Dr. Currence stated that Waters was
cooperative and understood that his behavior had been
“problematic.” In Dr. Currence’s opinion, Waters was criminally
responsible at the time of Dunlap’s shooting.
In Waters’s defense, he presented the testimony of his
5 pharmacist, who testified that he filled numerous prescriptions for
Waters in the month prior to the shooting. The pharmacist listed
Waters’s prescriptions and noted the reason they were generally
prescribed. The pharmacist was not admitted as an expert, and he
testified:
The risperidone is generally used as antipsychotic. Clonazepam [is] an antianxiety agent. Paroxetine is [an] antidepressant. Pantoprazole is generally used for reflux disorders or stomach ulcer[s]. Isosorbide is a heart medication, usually to treat angina. Lisinopril [is] usually used for blood pressure. . . . Donepezil is used to treat Alzheimer’s or some type of dementia disorder. Hydrochlorothiazide is a diuretic which is used for fluid retention and blood pressure. . . . Tamsulosin is [used for a] prostate problem to increase urine flow.
During Dr. Currence’s testimony, he stated that risperidone is
commonly prescribed to treat schizophrenia and clonazepam is used
in the treatment for mental illness.
Reverend Don Edwards testified that Waters attended church
approximately fifteen hours prior to the shooting and he appeared
upset and was crying. Because that was not Waters’s “normal
character,” Edwards went over to comfort Waters, but Edwards was
6 unable to have a conversation with Waters because it was in the
middle of the church service. Waters’s son testified that Waters
came to see him after church and Waters was “keyed up,”
“sweating,” and “concerned about how [his son] was doing.” Waters’s
son stated that he had never seen his father act that way before.
Waters’s two brothers and his son testified that they knew
Waters had previously spent time at Central State Hospital for
“emotional” or “mental problems” and that Waters took medication
for his “bad nerves.” One brother testified that when Waters was
taking an unspecified medication, he would become disoriented and
“wasn’t his real self.” Waters’s son testified that he had previously
witnessed a time when Waters “could barely walk” and “was almost
about to crawl coming in the house.” But Waters’s son was not sure
whether Waters had taken too much medication or not enough on
that occasion.
Waters took the stand in his own defense. Waters stated that
he usually took his medication as prescribed, but that he did not
take his medication on the weekend of the shooting because overall
7 he “fe[lt] like [he] took too much medicine” so he “backed off of it.”
Waters explained that he started “feeling bad” on the Sunday
morning that he went to church and stated, “I just — I couldn’t be
myself,” and that he felt worse upon leaving church that day. When
asked whether he shot Dunlap, Waters said, “I don’t know what
happened” and “I can’t remember.” But Waters admitted that he told
people that he shot Dunlap. Waters further stated that he had not
argued with Dunlap prior to the shooting and that he did not have
any thoughts about hurting or killing her.
1. Waters contends the trial court erred in denying his motion
for new trial because the evidence presented at trial was insufficient
to support his conviction for felony murder. We disagree.
Evidence is constitutionally sufficient to support a conviction
if, “‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Munn v. State,
313 Ga. 716, 720 (1) (873 SE2d 166) (2022) (quoting Jackson v.
Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
8 (1979)). “This Court does not reweigh evidence or resolve conflicts in
testimony but rather defers to the jury’s assessment of the weight
and credibility of the evidence.” Jones v. State, 314 Ga. 692, 695 (878
SE2d 502) (2022) (citation and punctuation omitted).
The evidence summarized above, including Waters’s admission
that he shot Dunlap, the presence of gunshot residue on his hands
after the shooting, and the recovery of a handgun and shell casings
in the room where Waters directed the EMT to locate Dunlap’s body,
was sufficient to authorize the jury to find beyond a reasonable
doubt that Waters was guilty of felony murder based on aggravated
assault. The jury was also authorized to reject Waters’s insanity
defense based on its assessment of the credibility of the witnesses
and of any conflicts in the evidence, including Dr. Currence’s
testimony that Waters was criminally responsible at the time of
Dunlap’s shooting. See Choisnet v. State, 295 Ga. 568, 571 (1) (761
SE2d 322) (2014) (courts must also determine whether the jury was
authorized to reject an insanity defense when asserted). See also
Neuman v. State, 311 Ga. 83, 86 (1) (856 SE2d 289) (2021). Thus,
9 Waters’s sufficiency claim fails.
2. Waters also appears to contend that the trial court erred in
denying his motion for new trial based on the “general grounds”
under OCGA §§ 5-5-203 and 5-5-21.4 “When these so-called ‘general
grounds’ are properly raised in a timely motion for new trial, the
trial judge must exercise a broad discretion to sit as a ‘thirteenth
juror.’” King v. State, 316 Ga. 611, 616 (2) (889 SE2d 851) (2023)
(citing Ridley v. State, 315 Ga. 452, 456 (3) (883 SE2d 357) (2023)).
“This role requires the judge to consider matters typically reserved
to the jury, including conflicts in the evidence, witness credibility,
and the weight of the evidence.” Ridley, 315 Ga. at 456 (3). But “the
merits of the trial court’s decision on the general grounds are not
subject to our review, and the decision to grant a new trial on the
general grounds is vested solely in the trial court.” King, 316 Ga. at
3 OCGA § 5-5-20 provides that “[i]n any case when the verdict of a jury
is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.” 4 OCGA § 5-5-21 provides that “[t]he presiding judge may exercise a
sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”
10 616 (2) (citation and punctuation omitted).
To the extent Waters contends the trial court failed to exercise
its discretion as the thirteenth juror, we disagree. In its order
denying Waters’s motion for new trial, the court expressly rejected
Waters’s general grounds claim because it found that “the verdict
[was] not contrary to the law and principles of justice” and that “the
weight of the evidence supported the verdict and the verdict was
consistent with the principles of justice and equity.” Waters’s
general grounds claim therefore fails. See King, 316 Ga. at 616 (2)
(concluding the trial court properly exercised its discretion as the
thirteenth juror when “[i]n its order denying [the defendant’s]
motion for [a] new trial, the court expressly rejected [the
defendant’s] general grounds claim because it found that ‘the weight
of the evidence does not preponderate heavily against the verdict
and the verdict was not contrary to the evidence or the principles of
justice and equity’”). To the extent a sufficiency analysis is required
for a general grounds claim, see King, 316 Ga. at 616 (2) n.8, we
concluded in Division 1 that the evidence against Waters was
11 constitutionally sufficient to affirm his conviction, so his claim fails
for this additional reason.
3. Waters contends his trial counsel provided constitutionally
ineffective assistance because counsel failed to adequately
investigate Waters’s insanity defense by failing to procure an expert
to testify about Waters’s criminal responsibility at the time of
Dunlap’s shooting and failing to procure an expert to testify about
the side effects of Waters’s prescription medications. These claims
fail.
(a) Background
(i) Pretrial Competency Evaluations
Soon after Waters’s arrest, trial counsel moved to have Waters
examined for his competency to stand trial, and this motion was
granted. Following a bench trial a couple of weeks later, the trial
court determined that Waters was not competent to stand trial, and
he was remanded to the custody of the Georgia Department of
Behavioral Health and Developmental Disabilities, i.e., Central
State Hospital, for treatment.
12 Fifteen months later, on March 3, 2015, a psychologist at
Central State Hospital “recommend[ed] that [Waters] be found
competent to stand trial.” Approximately two weeks later, Waters
was released on bond, with instructions that he comply with all
medical directives.5 In September 2015, trial counsel filed Waters’s
first notice of intent of defense of insanity. See Uniform Superior
Court Rule 31.5 (A).
On February 16 and August 24, 2016, the trial court ordered
that Waters be evaluated for his criminal responsibility at the time
of the act.6
Following a hearing on June 8, 2018,7 the trial court found that
rehabilitation of Waters’s competency was required and ordered
that he be transported to Central State Hospital for a competency
evaluation and, if appropriate, treatment. In an amended order, the
5 The record does not explain what happened between the time the psychologist “recommend[ed]” that Waters be found competent to stand trial and when he was released on bond, e.g., whether there was a competency hearing. 6 It appears this evaluation was not completed until 2019. 7 It is not clear from the record as to what occurred during the preceding
two years, except that status hearings were scheduled in May, September, October, and November 2017.
13 trial court noted that two psychologists determined that Waters was
not competent to stand trial and one psychologist determined that
Waters was competent to stand trial and “described an alleged
history of feigning.”
On January 2, 2019, the trial court held a competency hearing
and received testimony from Dr. Currence. Following this hearing,
the trial court entered an order, finding Waters was competent to
stand trial and ordering that Waters be evaluated for his criminal
responsibility at the time of the act.
(ii) Pretrial Criminal Responsibility Evaluation
In May 2019, following receipt of Dr. Currence’s report, the
trial court held a hearing and entered an order, determining that
Waters “had the mental capacity to distinguish right from wrong in
relation to the alleged acts and that [Waters] was not under the
influence of a delusional compulsion which would overmaster his
will to resist committing the alleged acts.” Waters then filed his
second notice of intent of defense of insanity.
(iii) Waters’s Motion for New Trial
14 At the motion-for-new-trial hearing, trial counsel testified that
his trial strategy was to pursue an insanity defense, and counsel was
aware that Dr. Currence planned to testify that Waters was
criminally responsible at the time he shot Dunlap. In response to
Dr. Currence’s anticipated testimony, counsel “reach[ed] out to . . .
psychiatrists” “that [he] had confidence in,” including the head of
psychiatry at Emory University, and counsel “ran the factual basis
by them and asked their professional opinion.” According to counsel,
the answer he received was that an insanity defense was “not going
to work,” so counsel decided not to hire a psychologist or
psychiatrist. Counsel testified that his “greatest fear” was for
Waters to undergo another examination and have that examination
confirm Dr. Currence’s opinion, resulting in “an additional witness
against” Waters.
While trial counsel recognized that he “did not have any
witnesses to prove the legal trial strategy [of insanity],” he stated
that he presented witness testimony from which jurors “could reach
their own conclusion as to whether” Waters was criminally
15 responsible at the time he shot Dunlap. These witnesses included
Waters’s family members, Reverend Edwards, and Waters’s
pharmacist. Counsel acknowledged that the pharmacist’s inability
to testify about the side effects of Waters’s medications on his mental
stability was “a problem” and that it would have been helpful “to
find a witness that could say the medications might have impacted
his mental stability.”
The trial court denied Waters’s claims of ineffective assistance
of counsel, finding that “trial counsel’s representation did not fall
below the standard of reasonable professional conduct” and that
there was “no evidence the outcome [of the trial] would have been
impacted by an expert witness’s testimony regarding the
medications taken by [Waters] at the time of the incident,” i.e., the
trial court concluded the claims failed on both deficiency and
prejudice grounds.
(b) Analysis
To prevail on claims of ineffective assistance of counsel, Waters
must demonstrate both that his trial counsel’s performance was
16 professionally deficient and that he was prejudiced by this deficient
performance. See Bates v. State, 313 Ga. 57, 62 (2) (867 SE2d 140)
(2022) (citing Strickland v. Washington, 466 U. S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984)). To establish deficient performance,
Waters must show that trial counsel performed his duties in an
objectively unreasonable way, considering all the circumstances and
in the light of prevailing professional norms. See id. Establishing
deficient performance
is no easy showing, as the law recognizes a strong presumption that counsel performed reasonably, and [the appellant] bears the burden of overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, 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.
Park v. State, 314 Ga. 733, 740-741 (2) (879 SE2d 400) (2022)
(citation and punctuation omitted). To establish prejudice, Waters
must prove that there is a reasonable probability that, but for his
trial counsel’s deficiency, the result of the trial would have been
17 different. See Bates, 313 Ga. at 62 (2). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
(citation and punctuation omitted). “And, this burden is a heavy
one.” Id. at 62-63 (2) (citation and punctuation omitted). “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.” Taylor v. State, 315 Ga. 630, 647 (5) (b) (884 SE2d
346) (2023) (citation and punctuation omitted).
(i) Failure to Procure Expert to Testify About Waters’s Criminal Responsibility at the Time of Dunlap’s Shooting
Waters contends his trial counsel provided constitutionally
investigate Waters’s insanity defense by failing to procure an expert
to testify about Waters’s criminal responsibility at the time of
Dunlap’s shooting. We agree with the trial court that counsel was
not deficient.
“Typically, the decision whether to present an expert witness
is a matter of trial strategy that, if reasonable, will not sustain a
18 claim of ineffective assistance.” Guzman-Perez v. State, 310 Ga. 573,
577 (2) (853 SE2d 76) (2020) (citation and punctuation omitted). We
have explained that when trial counsel makes a strategic decision
not to continue searching for a defense expert, but instead
challenges the State’s expert on cross-examination, while also
presenting a robust defense to other aspects of the State’s case,
counsel’s decision is not unreasonable and does not constitute
deficient performance. See Bates, 313 Ga. at 67 (2) (d).
Here, Waters has failed to show that his trial counsel was
deficient for failing to further investigate Waters’s insanity defense
by procuring an expert to testify about Waters’s criminal
responsibility at the time of the shooting. As shown above, trial
counsel testified that he “reach[ed] out” to a few psychiatrists “that
[he] had confidence in,” including the head of psychiatry at Emory
University, and he “ran the factual basis by them and asked their
professional opinion.” According to counsel, the answer he received
was that an insanity defense was “not going to work.” Because of
this response, counsel felt that obtaining an expert “wasn’t going to
19 be constructive.” Instead, counsel presented fact witnesses from
which jurors “could reach their own conclusion as to whether”
Waters was criminally responsible at the time he shot Dunlap. Thus,
“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,” Sullivan v. State, 308 Ga. 508, 514 (2) (b) (842 SE2d 5) (2020)
(citation, punctuation and emphasis omitted), and counsel
presented evidence to support an insanity defense through fact
witnesses, including witnesses who described Waters’s behavior
prior to the shooting and explained the medications he was taking
and why they were generally prescribed.
Therefore, we cannot conclude that the investigation by and
tactical judgment of Waters’s trial counsel was objectively
unreasonable. See Bates, 313 Ga. at 67-68 (2) (d) (concluding that
trial counsel did not perform deficiently by failing to present an
expert to rebut the State’s expert on the defendant’s mental state at
the time of the shooting). Cf. Taylor, 315 Ga. at 648-649 (5) (c)
20 (concluding that trial counsel did not perform deficiently by failing
to further investigate an insanity defense where the expert who
performed the defendant’s psychiatric evaluation concluded that the
defendant was competent to stand trial and was competent at the
time of the offense). Accordingly, this claim fails.
(ii) Failure to Procure Expert on Medications
investigate Waters’s insanity defense by failing to procure an expert
to testify about the side effects of Waters’s prescription medications.
Assuming without deciding that counsel was deficient, we conclude
Waters has failed to establish prejudice.
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. See, e.g., Allen
v. State, 317 Ga. 1, 10 (4) (a) (890 SE2d 700) (2023) (concluding that
21 the appellant failed to show prejudice when he “failed to present at
the motion for new trial stage any expert testimony or other
evidence indicating that he has in fact suffered from mental illness
at any point, let alone at the time of the crime such that he would be
able to avoid criminal responsibility or at the time of trial such that
he would be incompetent to stand trial”); Shelton v. State, 313 Ga.
161, 171 (3) (b) (869 SE2d 377) (2022) (same when the appellant
“failed to present any evidence at the motion for new trial hearing
indicating that [the appellant] was in fact suffering from mental
illness at the time of the crime such that he would be able to avoid
criminal responsibility”); Mims v. State, 304 Ga. 851, 856 (2) (a) (823
SE2d 325) (2019) (same when the appellant “did not present any
evidence [at the motion-for-new-trial hearing] that she had ever
been evaluated by an expert or that a psychologist reviewed the
record and formed an opinion as to her culpability at the time of the
offense”). This is because “mere speculation about what the evidence
would have shown had it actually been obtained does not satisfy the
requirement of showing prejudice.” Coley v. State, 305 Ga. 658, 666
22 (6) (b) (827 SE2d 241) (2019) (citation and punctuation omitted).
Here, Waters failed to present any evidence at the motion-for-
new-trial hearing about what evidence could have been elicited from
a potential expert testifying about the side effects, if any, of Waters’s
prescription medications. Waters therefore has not shown that a
reasonable probability exists that the result of the trial would have
been different had trial counsel attempted to retain an expert on the
potential side effects of Waters’s prescription medications. See
Coley, 305 Ga. at 665 (6) (b). As a result, this claim of ineffective
assistance fails.
4. To the extent Waters contends that the combined prejudicial
effect of trial counsel’s deficiencies affected the outcome of the trial,
see Schofield v. Holsey, 281 Ga. 809 (642 SE2d 56) (2007), we have
stated that a defendant must show “that the cumulative prejudice
from any assumed deficiencies . . . showed a reasonable probability
that the results of the proceeding would have been different in the
absence of the alleged deficiencies.” Allen, 317 Ga. at 13 (4) (f). For
the purposes of this analysis, we have assumed the deficient
23 performance of counsel in Division 2 (b) (ii). Since there are no other
trial counsel deficiencies to aggregate, cumulative-error analysis is
not applicable. See Holland v. State, 314 Ga. 181, 193 (4) (875 SE2d
800) (2022) (cumulative-error analysis was not applicable because
there was only one instance of presumed deficient performance by
defense counsel).
Judgment affirmed. All the Justices concur.
Decided December 19, 2023.
Murder. Laurens Superior Court. Before Judge Gillis.
W. Rocky Adams, for appellant.
L. Craig Fraser, District Attorney, R. Brandon Faircloth,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Paula K. Smith, Meghan
H. Hill, Senior Assistant Attorneys General, for appellee.