Daughtry v. State

In the Supreme Court of Georgia

Decided: March 27, 2015

S14A1840. DAUGHTRY v. THE STATE.

HUNSTEIN, Justice.

Appellant Ricardo Daughtry was convicted of malice murder and other

serious crimes in connection with the shooting death of William Watson and of

two crimes, possession of cocaine and obstruction of an officer, that occurred

several months after the shooting of Watson. On appeal, Appellant contends

that his trial counsel was constitutionally ineffective. For the reasons that

follow, we affirm.1

1
On December 4, 2007, Appellant was indicted by a Screven County grand
jury for five crimes occurring on June 16, 2007 (malice murder, felony murder, two
counts of aggravated assault, and possession of a firearm during the commission of
a crime) and for two crimes occurring on September 11, 2007 (possession of cocaine
and obstruction of an officer). Appellant’s trial began on June 29, 2009, and on June
30, a jury found Appellant guilty on all counts. That same day, the trial court
sentenced Appellant to life in prison on the malice murder conviction, 15 consecutive
years for possession of cocaine, five consecutive years for firearm possession, and 12
concurrent months for obstructing an officer. The felony murder verdicts were
vacated by operation of law, and the aggravated assault verdicts were merged for
sentencing purposes. On July 2, 2009, trial counsel filed a motion for new trial on
behalf of Appellant. Appellant later obtained new appellate counsel, and an amended
motion for new trial was filed on December 13, 2013. On June 24, 2014, the trial
 1. Viewed in the light most favorable to the verdicts, the evidence

presented at trial showed the following.

On the evening of Saturday, June 16, 2007, Appellant, Jeremy Williams,

and Terry Calahan were at William Watson’s apartment. Appellant and

Williams sold Calahan cocaine, and Calahan left the apartment. Watson

proceeded to “cook” Appellant’s cocaine in the apartment. The batch was not

cooking properly, and Appellant told Watson, “If you don’t get my s... right, I’m

going to f... you up.” Williams saw Appellant reach for a pistol and fled the

apartment. When he was about 40 yards from the apartment, Williams heard

gunshots and saw a black male run from the apartment holding a shirt over his

face. After midnight, in the early morning hours of Sunday, June 17, Watson’s

next door neighbor, who was on her porch, heard three loud bangs, which she

thought could have been gunshots. She then saw a black male run from the

apartment holding a shirt over his face. He was ten feet from her.

court denied the motion for new trial, as amended. Appellant then filed a timely
notice of appeal. The appeal was docketed to the September 2014 term of this Court
and submitted for decision on the briefs.

2
 Later that morning around 6:00 a.m., Appellant appeared at Williams’

house, acting nervous. Appellant told Williams that he had shot Watson five

times and tried to shoot him a sixth time in the head but was out of ammunition.

Appellant also told Williams that “[t]he man f..... up. The man f..... up.”

Tony Scott, who employed the victim as a carpenter, testified that the

victim began a job for him installing an air conditioner on June 16 and that he

took the victim home about 10:00 p.m. Because the job was not complete, Scott

went by the victim’s apartment on Sunday, June 17. He repeatedly knocked on

the door but no one answered. He also repeatedly called the victim on Sunday

but got no answer. Scott also attempted to contact the victim at his apartment

and by phone on Monday, June 18, but could not reach him.

On Monday, June 18, 2007, Appellant and a friend, Travis Oliver, paid a

mutual acquaintance, Darrick Barrett, to drive them down a road that crossed the

Ogeechee River. When Barrett’s car approached the river, Appellant and Oliver

asked Barrett to stop on the bridge. Barrett did so, and Appellant and Oliver got

out of the car. Oliver saw Appellant throw a gun, with the magazine removed,

into the river.

Watson’s sister testified that she and Watson either talked every day or he

3
would come by her house and visit her. She testified that she called him several

times on June 17 because she had not heard from him, but that he did not

answer. She added that she called him again on the morning of June 19, but still

did not get an answer. Concerned, she went by his apartment that day to check

on him. When she arrived there, the door was unlocked. She went in and

discovered Watson, unresponsive, in the bathtub, and called 911. Law

enforcement officers arrived on the scene and concluded that Watson had been

shot and was deceased.

The medical examiner said that Watson had seven gunshot entrance

wounds, three to the upper chest, one to the abdomen, one to the hip, and two

to his left arm. According to the medical examiner, it was possible that the

victim had been shot only five times, with the two entrance wounds to the left

arm exiting the arm and entering the victim’s body. The victim died from

multiple gunshot wounds. Investigators found five shell casings in or near

Watson’s bathroom and two bullets. Agent Sapp of the Georgia Bureau of

Investigation noticed a white residue all over the stove, which she believed was

cocaine. There was also baking soda in the kitchen and two to three hundred

devices used for smoking crack cocaine. A coffee pot had a white residue,

4
which tested positive for cocaine. Agent Sapp collected three fingerprints from

a plate in Watson’s kitchen, which matched Appellant’s fingerprints.

Additionally, Watson’s cell phone was found on his body, and Agent

Purdiman of the GBI recorded the phone number of the caller on the last

answered and received call on Watson’s phone, which was at 12:45 a.m. on June

17. As further investigation would uncover, that phone number was

Appellant’s. On June 19 at 5:18 p.m, Agent Purdiman called Appellant’s phone

number from Watson’s phone, identified himself as a GBI agent, and notified

the person that answered that he was investigating Watson’s murder. The

person on the other end hung up. The agent was never able to reach a person at

that phone number again.

About two hours after Agent Purdiman’s call, Appellant and Oliver went

to a Lowe’s store, where Appellant bought a black light. A photograph of

Appellant at the register purchasing the black light, with Oliver standing near

him, was introduced into evidence, as was the receipt for the black light, which

contained a time stamp of 7:12 p.m. on June 19. On their way home, Oliver and

Appellant stopped at a friend’s motel room, where Appellant shined the black

light on his hands and asked Oliver if he could see anything. Oliver told him

5
that he could not.

A few days later, at Appellant’s request, Barrett drove Appellant and

Kurtis Sheppard to Atlanta and left Appellant there.

On July 10, 2007, a police dive team found a .380 caliber handgun with

the magazine removed in the Ogeechee River. A firearms identification expert

testified that the gun, on which the serial number was scratched out, fired the

shell casings found in Watson’s apartment. However, the markings on the spent

rounds were too poor to make a match. Williams, Sheppard, and Oliver all

testified that this recovered gun belonged to Appellant, with Sheppard adding

that Appellant’s gun had a scratched out serial number.

On July 19, 2007, Appellant agreed to be interviewed by GBI Agent Hill.

Appellant admitted that he had been to Watson’s apartment about a month

before. He also admitted that he was riding with Barrett and Oliver when they

stopped on the bridge over the Ogeechee River. He maintained, though, that he

urinated and threw a 22-ounce beer bottle into the river and did not throw a gun

into the river. When asked where he purchased the beer, he gave the agent the

name of a store and said that he purchased several bottles. However, the store’s

receipts for that day listed no such purchase. Appellant denied all involvement

6
in Watson’s death and told Agents he was playing dominoes and drinking beer

with Williams on the night of the murder. He also denied having a cell phone,

calling Watson’s phone the day of the murder, having a gun, going to Lowe’s,

and having any involvement with drugs.

On September 11, 2007, Agent Hill and several other law enforcement

officers went to Appellant’s grandmother’s residence, asked him to come with

them, and patted him down near their patrol car. When Agent Hill pulled a bag

of crack cocaine out of Appellant’s pocket, Appellant grabbed the bag and a

struggle ensued. There were enough officers, however, to subdue Appellant.

Phone records from the Screven County jail showed that Appellant called

Shawn Jackson, a mutual friend of Williams and Appellant, five times in June

2009 before Appellant’s trial. Jackson testified that, on one of those occasions,

Appellant asked to speak to Williams, who was with Jackson. Williams testified

that Appellant told him to testify that police scared him into making his

statement implicating Appellant. Williams also testified that prior to that phone

call, Appellant had told him to “take out” Sheppard, Barrett, and Oliver before

trial because they knew what had occurred. At that time, Appellant told

Williams that Appellant could implicate Williams as an accessory. Sheppard

7
added that Appellant asked him to tell Williams to intimidate Oliver.

The State also introduced similar transaction evidence. Wesley Roberts,

an acquaintance of Appellant, testified that on May 13, 2007, he and Appellant

were walking near a mobile home park in which Ricardo Raymond lived.

Appellant said that he wanted to rob Raymond’s home. Roberts saw Appellant

walk along the tree line of the mobile home park and then cut towards

Raymond’s home. Roberts did not go with Appellant, but a short time later, he

heard several gunshots and fled. Roberts added that the handgun found in the

Ogeechee River looked like a handgun that he had seen in Appellant’s

possession before. Jason Taylor testified that on the night of May 13, 2007, he

went to Raymond’s mobile home. He found the door open and went in. Almost

immediately, he heard a gunshot, began running, and then heard several more

shots. Taylor did not see the shooter. Four shell casings were found in

Raymond’s home, and forensic evidence showed that they had been fired from

the murder weapon.

Viewed in the light most favorable to the verdict, the evidence presented

at trial and summarized above was sufficient to authorize a rational jury to find

Appellant guilty beyond a reasonable doubt of the crimes of which he was

8
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d

560) (1979). See also Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009).

(“‘It was for the jury to determine the credibility of the witnesses and to resolve

any conflicts or inconsistencies in the evidence.’” (citation omitted)).

2. Appellant raises ten claims contending that his trial counsel provided

constitutionally ineffective assistance.2 To prevail on his ineffective assistance

claim, he must show that his counsel’s performance was professionally deficient

and that, but for the deficiency, there is a reasonable probability that the

outcome of the trial would have been more favorable to him. See Strickland v.

Washington, 466 U.S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984).

“‘This burden, although not impossible to carry, is a heavy one.’” Bester v.

State, 294 Ga. 195, 196 (751 SE2d 360) (2013). When assessing prejudice, a

court “must consider the totality of the evidence before the judge or jury. . . .

[A] verdict or conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record support.”

Strickland, 466 U.S. at 695-96. Moreover, in weighing prejudice, Appellant is

2
Appellant raised all ten of these claims in his motion for new trial, which the
trial court denied in a summary order.

9
entitled to relief if any one error of trial counsel shows that there is a reasonable

probability that the outcome of the trial would have been more favorable to him

or if “the collective prejudice from all of trial counsel’s deficiencies” meets that

standard. Perkins v. Hall, 288 Ga. 810, 812 (708 SE2d 335) (2011). Accord

Toomer v. State, 292 Ga. 49 (4) (734 SE2d 333) (2012); Schofield v. Holsey,

281 Ga. 809, 811-812 & n.1 (642 SE2d 56) (2007).

(a) Appellant claims that trial counsel provided ineffective

assistance in failing to seek a severance of the two crimes committed on

September 11, 2007, from the crimes connected with the death of the victim.

Appellant bases this argument, in part, on his assertion that he was not arrested

for the murder of the victim on September 11, but was instead only asked to go

to the police station for an interview and that law enforcement officers arrested

him on September 11 only for the crimes that occurred that day after Agent Hill

searched him and found the bag of cocaine. Appellant asserts that, because

those crimes were not connected to his arrest for the crimes related to the death

of the victim, trial counsel could have obtained a severance and provided

deficient performance in failing to do so. Appellant also contends that, even if

he had been arrested on September 11 for the homicide-related crimes, trial

10
counsel could have obtained a severance and provided ineffective assistance in

failing to move for one.

We conclude, however, that Appellant has failed to prove that counsel’s

actions were professionally unreasonable. Agent Hill testified at trial that he

and about five other law enforcement officers went to Appellant’s

grandmother’s house on September 11 and “located [Appellant] and we arrested

him there.” He added that during the course of his investigation, he had certain

information linking Appellant to the death of the victim but that he did not have

strong evidence that Appellant was at the victim’s house. He testified that when

the fingerprint expert called and told him that Appellant’s fingerprints were

found on the black plate located near the stove, he “obtained an arrest warrant

for [Appellant] and then we moved forward to arrest him.” Moreover, in

describing the struggle that ensued after the officers discovered the bag of

cocaine in Appellant’s pocket, Agent Hill described Appellant as “resisting

arrest.”

To argue that he was not arrested for the homicide-related crimes before

he was searched on September 11, Appellant relies on an “Investigative

Summary” that appears to have been prepared by Agent Hill. Appellant,

11
however, did not call Agent Hill as a witness at the motion for new trial hearing,

and he thus failed to show that the summary was anything other than

inadmissible hearsay. See Waldrip v. Head, 279 Ga. 826 (II) (A) (620 SE2d

829) (2005) (holding that a “‘Summary Report’” submitted to support a claim

under Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963),

could not be relied on to support the Brady claim when the defendant did not

call any witnesses about the preparation of the report and thus failed to show it

was anything other than inadmissible hearsay); accord Schofield v. Cook, 284

Ga. 240 (II) (D) (663 SE2d 221) (2008) (reports by third parties about what a

witness would have testified to had she been subpoenaed were inadmissible

hearsay not worthy of consideration in connection with ineffectiveness claim).

Thus, the “Investigative Summary” cannot be considered in support of this

claim, and, without it, the record shows only that Appellant was arrested on

September 11, 2007, for the crimes relating to the death of the victim. On this

record, we conclude that trial counsel did not perform deficiently in failing to

file a motion to sever. In this regard, Appellant relies on Benford v. State, 272

Ga. 348 (3) (528 SE2d 795) (2000), to contend that trial counsel provided

ineffective assistance. There, the defendant was arrested a month and a half

12
after the homicide for which he was on trial. Id. at 350. At the time of his

arrest, Benford fled from the officers and discarded a .22 caliber pistol and a can

containing crack cocaine. Id. at 349. Benford contended that the trial court

erred in admitting evidence of the circumstances of his arrest. We held that

evidence which shows the commission of another crime may not
automatically be admitted solely on the basis that the evidence was
incident to an accused’s arrest where the evidence is wholly
unrelated to the charged crime, the arrest is remote in time from the
charged crime, and the evidence is not otherwise shown to be
relevant. . . . Just as evidence of the circumstances connected with
an accused’s arrest is not automatically prejudicial neither is it
automatically relevant. Rather, such evidence is subject to the same
standard of relevancy and materiality applicable to other evidence.

Id. at 350 (citations omitted).

Benford, however, did not involve a motion to sever crimes arising from

the circumstances of a defendant’s arrest. In severance cases, we have generally

“‘upheld joinder of two crimes when one crime is a circumstance of the arrest

on the other crime.’” Woolfolk v. State, 282 Ga. 139, 140 (2) (644 SE2d 828)

(2007). We have said that, in these circumstances, the crime committed at the

time of arrest is a related offense to the other crimes. See Roundtree v. State,

270 Ga. 504 (3) (511 SE2d 190) (1999). But we have on occasion examined the

circumstances of the arrest to determine if the crimes committed then are

13
directly related and relevant to the original crimes other than for the reason that

the crimes occurred at the time of arrest. See Woolfolk, 282 Ga. at 140-141

(holding that the defendant’s crime at the time of his arrest of aggravated assault

against a peace officer was directly related to the original crimes and

distinguishing Benford, not only on the ground that Benford did not involve a

motion to sever but also on the ground that the part of the holding in Benford on

which the defendant relied involved a crime wholly unrelated to the original

crimes). See also Williams v. State, 277 Ga. 368, 369 & n.8 (3) (589 SE2d 563)

(2003) (holding that the defendant had not received ineffective assistance of

counsel based on counsel’s failure to move to sever a disorderly conduct charge

that occurred at the time of arrest on the original homicide crime, stating that

joinder of two crimes is proper “when one crime is a circumstance of the arrest

on the other crime,” but also citing a case which relied on Benford for the

proposition that “evidence of circumstances of arrest are subject to same

standards of materiality and relevancy as other evidence”).

Even assuming that the principles of Benford fully apply to motions to

sever, Appellant’s ineffectiveness claim fails. In Benford, the defendant was

arrested a month and a half after the homicide and had a can containing cocaine.

14
We held that

given the role crack cocaine played in the events leading up to the
murder of the victim and the reasonable inference the jury could
have drawn from the evidence that Benford’s motive in murdering
the victim was to obtain the victim’s drugs or money to purchase
the drug from others, we find no error in the trial court’s admission
of testimony that Benford possessed crack cocaine when arrested.

Benford, 272 Ga. at 350. Accord Smith v. State, 276 Ga. 97 (5) (575 SE2d 450)

(2003) (holding that the trial court did not err in admitting evidence that the

defendant possessed marijuana when he was arrested, saying it was relevant to

the murder-related charges because a dispute over marijuana led to the shooting

of the victim). Similarly, here, given the role that crack cocaine played in the

death of the victim, the trial court would not have been required to grant a

motion to sever, and Appellant’s counsel cannot be said to have performed

deficiently in failing to file such a motion. See Bryant v. State, 2015 Ga. LEXIS

94 (2) (a) (Feb. 2, 2015) (holding that where the trial court has discretion to

admit evidence of a threat to a witness and would not have been required to

sustain an objection to such evidence, trial counsel did not provide ineffective

assistance in failing to object to the testimony); Bester v. State, 294 Ga. at 198

(holding that where the trial court would have acted within its discretion in

15
denying a motion in limine to challenge similar transaction evidence, trial

counsel did not perform deficiently by failing to file such a motion); Yancey v.

State, 292 Ga. 812 (4) (740 SE2d 628) (2013) (explaining that counsel’s failure

to make a meritless objection does not amount to unreasonable performance as

a matter of law and holding that where the trial court had the discretion to

overrule an objection to the prosecutor’s closing argument, trial counsel did not

perform deficiently in failing to make the objection).

(b) Because the record shows that Appellant was properly arrested

for the homicide-related crimes on September 11, Agent Hill was authorized to

search Appellant pursuant to that arrest. See State v. Hargis, 294 Ga. 818, 824

(2) (756 SE2d 529) (2014) (explaining that “[i]t long has been settled that, as an

incident of a lawful arrest, an officer may search the person of the arrestee”).

Because the trial court would have been authorized to deny a motion to suppress

the cocaine found on Appellant at the time of his arrest, trial counsel did not

perform deficiently by not filing a motion to suppress that cocaine. See Bryant,

2015 Ga. LEXIS 94 at *7; Bester, 294 Ga. at 198; Yancey, 292 Ga. at 819.

(c) Appellant claims that trial counsel rendered ineffective

assistance by failing to make the appropriate arguments to exclude or limit the

16
similar transaction evidence admitted at trial. We disagree.

At a motions hearing before trial, the State contended that the similar

transaction evidence was admissible for the purpose of establishing identity, in

that it showed that Appellant had possession of the murder weapon 34 days

before the victim’s death. Trial counsel argued that the similar transaction

evidence should not be admitted because the State could not establish that

Appellant was the one who robbed Raymond’s mobile home on May 13. The

trial court took the issue under advisement.

On the morning of trial, the State again argued that the similar transaction

evidence was admissible to prove identity, contending it showed that the murder

weapon was “his gun,” as well as for his “propensity to use a gun” and

summarized Robert’s and Taylor’s testimony. Trial counsel again objected on

the ground that the State did not have sufficient proof that Appellant was the

perpetrator of the May 13 offense. The trial court noted that contention, but said

there was circumstantial evidence of Appellant’s involvement and that it would

give a limiting instruction with regard to the jury’s use of the evidence. The

court did not say what that instruction would be. Before the evidence was

introduced, the trial court instructed the jury that the evidence was being

17
admitted for the limited purpose of showing “the state of mind, that is to say the

knowledge or intent of the defendant in the crimes charged in the case now on

trial.” Appellant did not object to this charge. In its final charge to the jury, the

trial court repeated this limiting instruction, and, again, Appellant did not object.

In its closing argument, the State argued that evidence of the crime committed

on May 13 was relevant to establish Appellant’s identity, because it was

evidence that the murder weapon belonged to him. The State did not argue that

it proved intent or Appellant’s propensity use a weapon.

We conclude that Appellant has failed to show that trial counsel

performed deficiently in challenging the introduction of the similar transaction

evidence.

Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is
all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. 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. . . . There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in
the same way. To these ends, the law recognizes a “strong

18
 presumption” that counsel performed reasonably, and the defendant
bears the burden of overcoming this presumption. To carry that
burden, the defendant must show that no reasonable lawyer would
have done what his lawyer did, or would have failed to do what his
lawyer did not, or put another way, that his lawyer “made errors so
serious that [he] was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.”

State v. Worsley, 293 Ga. 315, 323-324 (3) (745 SE2d 617) (2013) (citations

omitted and paragraph structure altered).

Evaluating trial counsel’s challenged conduct from his perspective at the

time, he was faced with evidence of a similar transaction that was admissible at

trial. See Hanes v. State, 294 Ga. 521, 522-523 (755 SE2d 151) (2014) (holding

that similar transaction evidence regarding a traffic stop in which the police

found a weapon in his car similar to the murder weapon was admissible to prove

course of conduct); Palmer v. State, 271 Ga. 234, 240 (8) (c) (517 SE2d 502)

(1999) (holding that evidence that the defendant was in possession of the murder

weapon when stopped for a traffic violation several years before the homicide-

related crimes “was not a similar transaction, but simply relevant evidence that

[the defendant] possessed the murder weapon”). Given the general admissibility

of the similar transaction evidence in question and given the fact that no witness

saw Appellant in or around Raymond’s mobile home on May 13, we cannot

19
conclude that trial counsel’s tactical decision on how to challenge this evidence

was “‘so patently unreasonable that no competent attorney would have chosen

[it].’” Davis v. State, 296 Ga. 126, 131 (3) (765 SE2d 336) (2014).

Accordingly, Appellant has failed to show that his trial counsel performed

deficiently with respect to this claim of ineffective assistance.

(d) Appellant contends that trial counsel provided ineffective

assistance by failing to call Taquisha Cheevers to testify at trial.

At the motion for new trial hearing, Cheevers, who was an acquaintance

of the victim, testified that about 4:15 p.m. on June 19, 2007, she was

interviewed by the GBI and told them that she had seen the victim at a local

Dollar General store on June 18. However, given the consistency of numerous

witnesses concerning the dates involved, given the evidence that the last call to

the victim’s cell phone was placed at 12:45 a.m. on June 17, and given that

Cheevers had no information about the homicide itself, we cannot conclude that,

if trial counsel had called Cheevers as a witness at trial, there is reasonable

probability that the outcome of the trial would have been different.

(e) Appellant next contends that trial counsel furnished ineffective

assistance by failing to object to the hearsay testimony of Agent Hill as to

20
Appellant’s phone number. However, several other witnesses had already

testified as to Appellant’s phone number, and we cannot conclude that trial

counsel’s decision not to object to evidence that was already before the jury

from several sources was “‘so patently unreasonable that no competent attorney

would have chosen [it].’” Davis, 296 Ga. at 131.

(f) Appellant claims that, because there was evidence that Travis

Oliver had a prior conviction, trial counsel provided ineffective assistance in not

objecting to the trial court’s failure to charge the jury on impeachment of a

witness by a prior conviction. Here, however, Oliver appeared in court in a

prison jumpsuit, admitted that he was in prison for a probation violation on an

aggravated assault conviction, and admitted that he sold cocaine. Because of

these facts and the overwhelming evidence of Appellant’s guilt, we conclude

that, even if counsel had objected to the court’s failure to charge on

impeachment by a prior conviction, there is not a reasonable probability that the

outcome of the trial would have been different.

(g) Appellant contends that trial counsel erred by failing to object

to the trial court’s charge to the jury that it could consider an eyewitness’s level

of certainty in determining identity, a charge which, Appellant correctly notes,

21
this Court disapproved in Brodes v. State, 279 Ga. 435, 442 (614 SE2d 766)

(2005). Even if trial counsel performed deficiently in not objecting to this

charge, Appellant does not even argue how that error was prejudicial, and we

conclude that, because the only eyewitnesses were acquaintances of Appellant

and because of the overwhelming evidence of Appellant’s guilt, there is not a

reasonable probability that, if the trial court had omitted the charge at

Appellant’s behest, the outcome of the trial would have been more favorable to

him. See Gadson v. State, 289 Ga. 117, 119 (2) (707 SE2d 868) (2011) (holding

that “‘[a]ny error in the giving of an eyewitness ‘level of certainty’ instruction

was harmless inasmuch as the eyewitness [was] acquainted with [appellant]

before he shot and killed the victim’”).

(h) Appellant contends that trial counsel provided ineffective

assistance by failing to object to the trial court’s charge on “admission by

conduct.” In particular, the court charged the jury that it could infer a

consciousness of guilt if it believed that Appellant had attempted to threaten or

intimidate a witness. Appellant properly does not contend that evidence of

attempts to threaten or intimidate a witness is inadmissible, see, e.g., Lindsey v.

State, 295 Ga. 343, 348 (3) (760 SE2d 170) (2014) (“[e]vidence of a defendant’s

22
attempt to influence or intimidate a witness is circumstantial evidence of guilt”),

but contends that a charge instructing the jury on how to consider the evidence

should not be given. Appellant does not point to any case holding that this

charge is incorrect, and it appears that neither this Court nor the Court of

Appeals has held that such a charge is error. In fact, the Court of Appeals has

approved of the charge. See Williams v. State, 171 Ga. App. 934 (3) (321 SE2d

429) (1984).3

Unable to find any case law specifically prohibiting the charge, he argues

that trial counsel should have argued that the charge should not be given based

on the rationale of Renner v. State, 260 Ga. 515 (3) (b) (397 SE2d 683) (1990),

in which we disapproved of charging the jury on flight in criminal cases. Before

Renner, the flight charge instructed the jury that it could infer a consciousness

of guilt from evidence of flight. See Boutwell v. State, 256 Ga. 63 (3) (344

3
This charge is approved in some Federal courts. See, e.g., United States v.
Reaves, 649 F3d 862, 867 (8th Cir. 2011) (approving charge that informs the jury that
it may consider whether “[a]ttempts by a defendant to influence a witness in
connection with the crime charged in this case . . . show[] a consciousness of guilt”).

23
SE2d 222) (1986). In disapproving of the flight charge in Renner, we said that

[t]he charge serves no real purpose, as it is a particularization of the
general charge on circumstantial evidence, and as the state is free to
use circumstantial evidence of flight to argue the defendant’s guilt.
. . . Moreover, the charge inevitably carries with it the potential of
being interpreted by the jury as an intimation of opinion by the
court that there is evidence of flight and that the circumstances of
flight imply the guilt of the defendant; this is especially true since
the trial court does not give specific charges on other circumstances
from which guilt or innocence may be inferred.

Id. at 518.

However, “[i]n making litigation decisions, there is no general duty on the

part of defense counsel to anticipate changes in the law, and . . . only in a rare

case would it be ineffective assistance by a trial attorney not to make an

objection that would be overruled under prevailing law.” Perera v. State, 295

Ga. 880, 885-886 (3) (d) (763 SE2d 687) (2014) (citation and punctuation

omitted). We, however, need not decide if trial counsel should have argued

against the charge based on Renner, because, again, Appellant has failed to

show prejudice. Two acquaintances of Appellant implicated him in the scheme

to intimidate witnesses; evidence of this attempted intimidation was properly

admitted at trial; the State properly argued that the jury could infer guilt from

24
the evidence; and the evidence of Appellant’s guilt is overwhelming. Under

these circumstances, we cannot conclude that, if the trial court had not given the

jury charge in question, there is reasonable probability that the outcome of the

trial would have been different.

(i) Appellant contends that trial counsel rendered ineffective

assistance by failing to investigate Sheppard’s criminal history and impeach him

at trial with a pending felony charge.4 At the motion for new trial hearing, trial

counsel testified that he did not “recall this issue one way or another.”

However, even if trial counsel performed deficiently by not discovering

Sheppard’s pending charge, Sheppard admitted on cross-examination to

smoking marijuana and crack cocaine, and he did not testify to any critical

information that was not also testified to by other witnesses. Based on these

considerations and the overwhelming evidence of Appellant’s guilt, we

conclude that Appellant has failed to carry his burden to show prejudice from

counsel’s error.

4
At the motion for new trial hearing, Appellant introduced certified copies of
an October 2007 indictment against Sheppard for aggravated assault and making
terroristic threats.

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 (j) Appellant contends that trial counsel provided deficient

performance by failing to impeach Oliver and Williams with prior inconsistent

statements. At the motion for new trial hearing, however, Appellant relied on

hearsay summaries as to the content of those allegedly inconsistent statements.

Absent any admissible evidence to support this ineffectiveness claim, we must

reject it. See Waldrip, 279 Ga. at 828; Cook, 284 Ga. at 251.

Appellant, however, does raise one allegation of ineffective assistance

regarding trial counsel’s cross-examination of Williams that does not relate to

a prior inconsistent statement. On direct, Williams testified that Appellant asked

him to “take out” Barrett, Sheppard, and Oliver. Appellant contends that trial

counsel erred by failing to ask Williams why Appellant would threaten those

three witnesses and not Williams, when Williams was the most damaging

witness against Appellant.

“‘The scope of cross-examination is grounded in trial tactics and strategy,

and will rarely constitute ineffective assistance of counsel.’” Walker v. State,

294 Ga. 752, 756 (2) (a) (755 SE2d 790) (2014). Here, trial counsel more than

adequately cross-examined Williams, getting him to admit, among other things,

that when he was questioned shortly after the crimes, he told the police that he

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was with Appellant drinking beer and playing dominoes and that he changed his

story some two years later when a police officer told him that, if he did not

testify against Appellant, the police would look at him as a possible suspect.

That trial counsel did not ask the specific question that Appellant says he should

have does not constitute deficient performance.

(k) We have assumed for the sake of analysis that trial counsel

performed deficiently in several ways. However, considering “the totality of the

evidence before the . . . jury” and considering that the verdict has

“overwhelming record support,” Strickland, 466 U.S. at 695-96, we cannot

conclude that, considering the cumulative effect of counsel’s alleged errors,

there is a reasonable probability that the outcome of the trial would have been

different.

Judgment affirmed. All the Justices concur.

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