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official text of the opinion.
In the Supreme Court of Georgia
Decided: October 24, 2023
S23A0443. HARDY v. THE STATE.
WARREN, Justice.
In November 2021, Deveric Hardy was convicted of malice
murder for the November 2016 shooting death of Kyree Smith. 1 He
appeals that conviction, arguing that his trial counsel provided
constitutionally ineffective assistance by failing to introduce
Smith was killed in November 2016. In March 2017, a Gwinnett
1
County grand jury indicted Hardy and Stefan Ellington for malice murder,
three counts of felony murder, and one count each for the underlying felonies
of aggravated assault, attempt to possess greater than one ounce of marijuana,
and attempt to purchase marijuana. In the same indictment, Anthony Benson
was charged with tampering with evidence. Hardy was tried alone in
November 2021. The jury found him guilty of malice murder, felony murder
based on aggravated assault, and aggravated assault. The jury found him not
guilty of the remaining offenses. The court sentenced him to serve life in prison
on the malice murder count, vacated the felony murder count, and merged the
aggravated assault count. Hardy timely moved for a new trial with new
counsel, amending the motion once. In October 2022, after an evidentiary
hearing, the trial court denied Hardy’s motion. He filed a timely notice of
appeal. The case was docketed to the April 2023 term of this Court, and we
now decide it based on the briefs.
evidence that Smith had a violent character and by failing to request
a jury instruction on accomplice corroboration. For the reasons
explained below, we affirm.
1. As pertinent to his claims on appeal, the evidence presented
at Hardy’s trial showed the following. On the night of November 28,
2016, Hardy, who was driving a car with Blake Stratton sitting in
the backseat, and Smith, who was driving a car with Anthony
Benson sitting in the back seat, met in the parking lot of a fast-food
restaurant in Gwinnett County. After a brief interaction, Hardy
fired a gun “more than once,” hitting Smith twice, once in the right
upper chest and once in the left side of the back. Smith died from
his injuries. Hardy was later arrested for Smith’s murder in
Tennessee.
At trial, Benson and Hardy each testified as to what happened
that night. Benson testified as follows. 2 He and Smith were close
friends, and Smith sold marijuana. On the night of the shooting, he
2 As noted in footnote 1 above, Benson was indicted for tampering with
evidence. He was granted testimonial immunity for Hardy’s trial. The
resolution of Benson’s indictment is not clear from the record.
2
and Smith went to the parking lot to sell someone marijuana.
Benson did not know who the prospective buyer was. Benson sat in
the back seat of the car to provide “protection,” although neither he
nor Smith was carrying a gun. Smith had two bags of marijuana in
the car.
When Benson and Smith arrived at the parking lot, Smith
initially pulled up on the passenger’s side of the car that was waiting
for them. Benson saw a passenger in the car, but he did not talk to
anyone in the other car or hear any conversation between Smith and
the passenger. After less than a minute, Smith pulled around to the
driver’s side of that car, positioning his car so the drivers were next
to each other and the cars were “pretty close” together. Smith spoke
to the driver briefly. Benson could not hear the conversation, and
he could not clearly see the people in the other car.
Then, Benson heard “more than one” gunshot. Benson did not
know where the shots came from. Smith “yelled out,” and his foot
hit the gas, causing the car to move forward and get stuck on a
median in the parking lot. Benson took the marijuana and “dumped
3
the bags out behind the car” in the woods because he “didn’t want
anybody getting in trouble.”3 He saw that people who had been at
the restaurant were calling 911, so he did not. He took Smith’s
phone because he thought it was his own. 4 He spoke to the police at
the scene and later that night at the police precinct, but did not tell
them the truth about why he and Smith were in the parking lot
because he did not believe that Smith was dead and he did not want
Smith “to get in trouble for anything weed related.”5
Hardy testified as follows. He met Stefan Ellington at a party
a few months before the shooting, and Ellington told Hardy he knew
someone who could sell him a new phone. Hardy made plans
through Ellington to meet “a guy named Nick” in the restaurant
3 At some point that night, Benson told the lead investigator that “he
threw a bag of marijuana into the woods,” and an officer was able to find a bag
of about two ounces of marijuana behind the parking lot.
4 Benson later gave his phone and Smith’s phone to the police.
5Later, at the hearing on the State’s Motion to Grant Testimonial
Immunity to Benson, Benson testified that Smith “had a play” to sell
marijuana in the parking lot the night of the shooting.
4
parking lot and buy iPhones. 6 Hardy did not know Smith. 7 After
Hardy arrived at the parking lot, another car arrived and pulled up
to the passenger’s side of Hardy’s car, and the driver talked to
Stratton. Then, the car pulled to the driver’s side, parking so Hardy
and the other driver were “window to window.”
Hardy asked, “do he have the phones,” and the driver asked
how much money Hardy had. Hardy responded, “like 500,” and then
the driver put a gun “in [Hardy’s] face.” According to Hardy, he held
up his hands and then reached for the gun that was “in his face,”
and the two men “wrestled for it.” After a short struggle, Hardy
gained control of the gun. The driver was still “advancing through
the window,” and Hardy shot the gun “more than once,” “defending
[him]self until [the driver] stopped becoming aggressive.” Hardy did
6 No evidence was presented that someone named Nick appeared in the
parking lot for the purported iPhone sale.
7 Text messages between Smith’s phone and Ellington’s phone indicate
that Ellington had arranged to meet Smith in the parking lot to buy two ounces
of marijuana on the night of the shooting. Also, in the hours leading up to the
shooting, Ellington’s phone and Hardy’s phone exchanged several phone calls.
There was no evidence of contact between Smith’s phone and Hardy’s phone
presented at trial.
5
not see if the passenger in the back seat had a gun. The other car
then drove up an embankment in the parking lot, and Hardy
dropped the gun outside his window and drove away. No guns were
found at the scene of the shooting, and the murder weapon was
never found. Stratton also testified at trial, telling a story that was
similar to Hardy’s.
At trial, Hardy argued that he shot Smith in defense of himself
and in defense of Stratton or in defense of habitation (i.e., his car).
2. Hardy contends that trial counsel provided constitutionally
ineffective assistance by failing to introduce evidence that Smith
had a violent character and by failing to request a jury instruction
on accomplice corroboration. Both of Hardy’s claims fail.
“To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant.” Perkins v. State, 313 Ga. 885, 901 (873 SE2d 185)
(2022) (citing Strickland v. Washington, 466 U.S. 668, 687-695 (104
SCt 2052, 80 LE2d 674) (1984)). “To satisfy the deficiency prong, a
6
defendant must demonstrate that his attorney ‘performed at trial in
an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms.’” Perkins, 313 Ga.
at 901 (citation omitted). This demonstration requires a defendant
to overcome the “‘strong presumption’” that trial counsel’s
performance was adequate. Id. (citation omitted). A defendant
attempting to carry his burden “must show that no reasonable
lawyer would have done what his lawyer did, or would have failed
to do what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787
SE2d 221) (2016).
“To satisfy the prejudice prong, a defendant must establish a
reasonable probability that, in the absence of counsel’s deficient
performance, the result of the trial would have been different.”
Perkins, 313 Ga. at 901. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Sullivan v.
State, 308 Ga. 508, 510 (842 SE2d 5) (2020) (quoting Strickland, 466
U.S. at 694). “This burden is a heavy one.” Young v. State, 305 Ga.
92, 97 (823 SE2d 774) (2019).
7
“Ineffectiveness claims involve mixed questions of law and fact,
and ‘a trial court’s factual findings made in the course of deciding an
ineffective assistance of counsel claim will be affirmed by the
reviewing court unless clearly erroneous,’ whereas conclusions of
law based on those facts are reviewed de novo.” Sullivan, 308 Ga.
at 510 (citation 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.’” Bates v. State, 313
Ga. 57, 63 (867 SE2d 140) (2022) (citation omitted).
(a) Hardy first claims that trial counsel provided ineffective
assistance by failing to introduce evidence through Brevin Egerton,
a high school classmate of Smith’s, that Smith had a violent
character. Pretermitting whether trial counsel’s performance was
constitutionally deficient, we conclude that Hardy’s claim does not
succeed because he has not shown that his counsel’s performance
resulted in prejudice to him.
At trial, Hardy’s counsel asked the court to allow him to
introduce evidence of Smith’s “pertinent trait[s] of character” under
8
OCGA § 24-4-404 (a) (2) because Hardy had made a prima facie case
of self-defense.8 Trial counsel sought to introduce this evidence
through Egerton, from whom Smith robbed shoes about 18 months
before the shooting. Counsel argued that Egerton’s testimony would
show that Smith had “a reputation for being a robber” or a
reputation for “predatory behavior.” The trial court ruled that it
would not admit evidence of specific acts, such as the shoe robbery,
8 OCGA § 24-4-404 (a) says:
Evidence of a person’s character or a trait of character shall not be
admissible for the purpose of proving action in conformity
therewith on a particular occasion, except for:
(1) Evidence of a pertinent trait of character offered by an
accused or by the prosecution to rebut the same; or if
evidence of a trait of character of the alleged victim of the
crime is offered by an accused and admitted under
paragraph (2) of this subsection, evidence of the same
trait of character of the accused offered by the
prosecution;
(2) Subject to the limitations imposed by Code Section 24-4-
412 [dealing with sex offense cases], evidence of a
pertinent trait of character of the alleged victim of the
crime offered by an accused or by the prosecution to rebut
the same; or evidence of a character trait of peacefulness
of the alleged victim offered by the prosecution in a
homicide case to rebut evidence that the alleged victim
was the first aggressor; or
(3) Evidence of the character of a witness, as provided in
Code Sections 24-6-607, 24-6-608, and 24-6-609 [dealing
with impeaching a witness].
9
but that counsel could introduce opinion evidence of Smith’s
reputation for “deceptiveness.” Egerton then testified that he
attended high school with Smith and that Smith was “known in the
community for being deceptive and deceitful.” Trial counsel did not
ask Egerton questions about any specific acts or whether Smith had
a violent character.
At the motion-for-new-trial hearing, trial counsel—the only
witness Hardy presented—testified that he did not elicit testimony
from Egerton that Smith was violent because he “interpreted the
Judge’s rulings” as prohibiting Egerton’s “opinion that [Smith] was
violent or any of the facts and circumstances behind how [Egerton]
reached that opinion.” Pretermitting whether counsel’s failure to
elicit from Egerton evidence that Smith was violent constituted
deficient performance,9 Hardy has not shown that any such
deficiency caused him prejudice under Strickland. See Strickland,
466 U.S. at 687.
9 Specifically, Hardy appears to contend that trial counsel should have
elicited evidence of Smith’s reputation for violence by impeaching Benson with
Egerton’s trial testimony.
10
In the context of an ineffective assistance claim, we have
explained that a defendant cannot rely on defense counsel’s
testimony about what counsel expected an uncalled witness to say
as evidence that the testimony would have been favorable to the
defendant. See Wofford v. State, 305 Ga. 694, 697 (827 SE2d 652)
(2019). But Hardy seeks to do just that. And given that Hardy did
not present testimony from Egerton at the motion-for-new-trial
hearing, trial counsel “could only speculate about what” testimony
Egerton might have given. Id. As a result, Hardy has not shown
that Egerton “could have offered favorable testimony at trial” and
cannot establish prejudice. See id. His claim therefore fails. See id.
(rejecting an ineffective assistance claim where the appellant
attempted to establish prejudice using trial counsel’s testimony at
the motion-for-new-trial hearing about what counsel expected a
police officer—who was not called to testify at trial—would have said
if he had been called to testify) (citation omitted). See also Allen v.
State, ___Ga.___, ___ (890 SE2d 700, 710) (2023) (rejecting an
ineffective assistance claim on the prejudice prong where the
11
appellant pointed only to trial counsel’s testimony at the motion-for-
new-trial hearing about what counsel expected a video expert to
testify to at trial, and explaining that to show prejudice in such
circumstances, “‘[e]ither the uncalled witness must testify or the
defendant must introduce a legally recognized substitute for the
uncalled witness’s testimony’”) (citation omitted).10
(b) Hardy contends that trial counsel provided constitutionally
ineffective assistance by failing to request a jury instruction on
accomplice corroboration. Because Hardy has not shown that his
counsel was deficient in this respect, his claim fails.
Hardy claims that an accomplice-corroboration instruction was
warranted because some evidence was presented at trial that
Benson was an accomplice to the charged crimes. Pretermitting
10 To the extent Hardy also argues that trial counsel’s failure to introduce
evidence of the shoe robbery constituted ineffective assistance, he failed to
raise that claim at the motion-for-new-trial stage when he had new counsel.
Thus, that claim is procedurally barred. See, e.g., Mahdi v. State, 312 Ga. 466,
469 (863 SE2d 133) (2021) (“Although afforded the opportunity to raise claims
of ineffective assistance of trial counsel through motion counsel, [appellant] did
not then raise the specific claims of ineffectiveness at issue in this appeal.
Accordingly, these claims “are procedurally barred for failure to assert them at
the first practicable opportunity.”).
12
whether there was at least slight evidence that Benson was an
accomplice to Hardy’s crimes, Hardy has not demonstrated that trial
counsel’s performance was deficient because we cannot say that his
counsel was objectively unreasonable in deciding not to request the
jury instruction Hardy complains about on appeal.
“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. In particular, the decision about which jury charges to
request is a classic matter of trial strategy.” Rayton v. State, 314
Ga. 29, 35 (875 SE2d 708) (2022) (citation and punctuation omitted).
At the hearing on Hardy’s motion for a new trial, trial counsel
provided the following rationale for deciding not to request the
accomplice-corroboration instruction. Trial counsel testified that his
defense theory was that Hardy met Smith “under the auspices of
purchasing cell phones,” that Smith first assaulted Hardy, and that
Hardy shot Smith because Hardy was “defending himself.” Counsel
believed that an accomplice-corroboration instruction would
13
contradict the defense theory because it could have implied that
Hardy was not in the parking lot for the innocent purpose of buying
phones.
The record supports trial counsel’s reasoning. Hardy testified
at trial that he wrestled the gun away from and shot Smith only
after Smith pointed the gun at Hardy. And trial counsel repeatedly
argued at trial that Hardy went to the parking lot to buy phones—
not marijuana—and that Hardy had a right to protect himself from
Smith’s aggression. Under these circumstances, we cannot say that
trial counsel’s tactical decision to forgo an accomplice corroboration
instruction was “so patently unreasonable that no competent
attorney would have followed such a course.” Rayton, 314 Ga. at 35
(citation omitted). See also Perkins, 313 Ga. at 903-904 (holding that
it was not objectively unreasonable for trial counsel to decide not to
request an accomplice corroboration instruction where the evidence
supporting such an instruction was “at best slight” and counsel
testified at the motion-for-new-trial hearing that his defense theory
was based on the insufficiency of the evidence and that “he did not
14
‘believe that [the accomplice-corroboration] significantly help[ed]
under the facts and circumstances of this case’”); Vasquez v. State,
306 Ga. 216, 230 n.13 (830 SE2d 143) (2019) (“We have previously
recognized that, in the context of a claim of ineffective assistance of
counsel, it may be a reasonable trial strategy for the defense to forgo
a request for an accomplice-corroboration charge even though it was
warranted by the evidence presented at trial.”); Manner v. State,
302 Ga. 877, 883-884 (808 S.E.2d 681) (2017) (rejecting the
argument that trial counsel’s performance was deficient for
withdrawing an accomplice corroboration instruction request
because “it was not objectively unreasonable for counsel to conclude
that any benefit to [the appellant] in instructing the jury that [a
witness’s] testimony required corroboration was outweighed by the
instruction’s potential conflict with the theory of defense”).
Consequently, Hardy has not established that his trial counsel
performed deficiently, so his second claim of ineffective assistance
fails.
Judgment affirmed. All the Justices concur.
15