Williams v. State

862 S.E.2d 108, 312 Ga. 195

• Court: Supreme Court of Georgia
• Decided: August 10, 2021
• Docket: S21A0504
• Status: Published

Opinion

312 Ga. 195 FINAL COPY

S21A0504. WILLIAMS v. THE STATE.

MCMILLIAN, Justice.

Santiago James Williams appeals his convictions for the

murders of Andrew Steven Coleman and Martial “Montrell”

Washington. His sole contention is that he is entitled to a new trial

because the State’s key witness’s post-trial testimony amounts to

newly discovered evidence. We disagree and affirm.1

1 On November 21, 2006, a Chatham County grand jury returned an

indictment charging Williams and two co-indictees with two counts of malice murder, two counts of felony murder, one count of armed robbery, and three counts of possession of a firearm during the commission of a felony. At a trial held from April 27 to 29, 2009, a jury found Williams guilty of all counts except one firearm-possession count and armed robbery, for which he was found guilty of the lesser-included offense of aggravated assault with intent to rob. The court sentenced him to serve life in prison for each murder, twenty years in prison for aggravated assault, and five years in prison for each of the remaining firearm-possession counts, all to be served consecutively. The court purported to merge the felony murder counts into the malice murder counts, but the felony murder counts were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 373 (5) (434 SE2d 479) (1993). Williams filed a motion for new trial on May 28, 2009, which was denied on August 4, 2010. His trial counsel filed a notice of appeal on August 24, 2010, but did not respond to the clerk’s office notifying him of errors in the filing until he corrected them on June 29, 2012. Because trial counsel did not pay the bill The evidence at trial showed that on August 30, 2006, as

Williams and others, including Malcolm Bostick, Marcus Fennell,

and Gabriel Gulley, were drinking and taking drugs, they discussed

the possibility of robbing and killing Coleman. Fennell arranged a

meeting with Coleman at a nearby park that night. At the park,

Williams and Fennell initiated a drug buy with Coleman and

Washington, who arrived together in Coleman’s car, while the others

stood by. After the drugs traded hands, Williams shot Coleman.

Bostick then ran over and shot Washington. The attackers briefly

searched the car, and the group dispersed. Coleman and Washington

succumbed to their gunshot wounds.

Williams, Bostick, and Fennell were tried separately, with

of costs, however, the record was not transmitted. Williams, acting pro se, requested new appointed counsel in 2013 and asserted his indigence; however, it does not appear that the trial court acted on this request. Trial counsel passed away in 2016. In the meantime, Williams filed a habeas corpus action, which was dismissed as premature, and again requested counsel in 2018 and 2019. New counsel made an appearance and filed for an out-of-time appeal on December 16, 2019, which was granted on June 11, 2020. However, because counsel apparently did not receive notice of the granted out-of-time appeal, the order was vacated and re-issued on September 25, 2020. Williams timely filed a second notice of appeal. His case was docketed to the April 2021 term of this Court and submitted for a decision on the briefs. 2 Williams tried first. Gulley moved out of state after the crimes, was

never charged in relation to the murders, and testified for the State

at Williams’s trial. So that Gulley would not need to travel again for

the other two trials, the trial court allowed Gulley’s testimony to be

preserved through a video deposition the week after Williams’s trial.

In his sole enumeration of error, Williams argues that the trial

court abused its discretion in not granting him a new trial based on

newly discovered evidence from Gulley’s post-trial deposition

testimony. To obtain a new trial under OCGA § 5-5-23 based on

newly discovered evidence, a defendant must show: first, that the

evidence came to his knowledge after his trial; second, that the

failure to discover the evidence sooner was not due to his lack of due

diligence; third, that the evidence is so material that it would

probably produce a different verdict; fourth, that the evidence is

admissible and not cumulative only; fifth, an affidavit of the witness

or an explanation for its absence; and sixth, that the effect of the

evidence would be more than to impeach the witness’s credibility.

See Wimberly v. State, 302 Ga. 321, 326 (3) (806 SE2d 599) (2017)

3 (citing Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792)

(1980)). A defendant fails to meet his burden if he cannot satisfy one

of these requirements, and “[a] trial court’s ruling on such a motion

will not be reversed unless it affirmatively appears that the court

abused its discretion.” Glover v. State, 296 Ga. 13, 15 (2) (764 SE2d

826) (2014) (cleaned up).

Gulley’s deposition testimony was largely the same as his trial

testimony, except that during the deposition, Gulley mentioned that

he and the other perpetrators spent time with two others named

Brian and Gary after the murders. In the order denying the motion

for new trial, the trial court concluded that “[t]he discrepancies that

defendant points out are relatively minor and do not lead to a

conclusion that the witness knowingly gave false testimony.”2

We see no error in the trial court’s conclusion that Williams

failed to show that he was entitled to a new trial. The State elicited

2 In his motion for new trial, Williams presented other purportedly material differences to argue that Gulley’s testimony was willfully and knowingly false, but he does not assert this argument or those differences on appeal. 4 the so-called new evidence at Gulley’s deposition by simply asking

him what happened, which Williams was also able to do at trial on

cross-examination but did not. Williams’s failure to sufficiently

cross-examine shows a lack of due diligence. See Smith v. Smith, 293

Ga. 563, 566 (5) (748 SE2d 456) (2013) (in divorce case using same

test for newly discovered evidence, husband lacked due diligence

because he did not cross-examine wife at trial); Timberlake, 246 Ga.

at 491-92 (1); Joyner v. State, 267 Ga. App. 309, 312 (3) (599 SE2d

286) (2004) (lack of due diligence where evidence could have been

obtained earlier, such as on cross-examination). Plus, Gulley’s

deposition testimony “would only have had the effect of impeaching”

his credibility as a witness by demonstrating inconsistencies

between his testimony at trial and his deposition, which the trial

court correctly concluded were “relatively minor.” Wimberly, 302 Ga.

at 327 (3); Glover, 296 Ga. at 15 (2). Therefore, Williams also failed

to make the requisite showing that the evidence was so material

that it would probably produce a different verdict. See Wimberly,

302 Ga. at 326 (3). Accordingly, we cannot say that the trial court

5 abused its discretion in denying Williams’s motion for new trial.

Judgment affirmed. All the Justices concur, except Colvin, J., not participating.

Decided August 10, 2021.

Murder. Chatham Superior Court. Before Judge Karpf.

Amanda J. Walker, for appellant.

Meg E. Heap, District Attorney, Bradley R. Thompson,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant

Attorney General, for appellee.