NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: September 19, 2023
S23A0758. ADAMS v. THE STATE.
ELLINGTON, Justice.
A Fulton County jury found Leon Adams IV (“Leon”) guilty of
malice murder and other offenses in connection with the shooting
death of Laron Lowe and the aggravated assault of Ronda Dobson.1
Leon contends that the evidence was constitutionally insufficient to
1 On November, 22, 2016, a Fulton County grand jury returned an
indictment charging Leon Adams and his co-defendants Isaiah Adams and
Malcom Pitts with murder, felony murder (four counts), aggravated assault
(two counts), criminal damage to property in the first degree, and possession
of a firearm during the commission of a felony. Leon Adams was also charged
with possession of a firearm by a first offender probationer. Leon and Isaiah
Adams were tried on June 11, 2018; Pitts was tried separately. On June 15,
2018, the jury found the Adams brothers guilty on all counts. On June 25, 2018,
the trial court sentenced Leon Adams to life in prison for malice murder, a
consecutive 10-year sentence for the aggravated assault against Dobson, a
concurrent 10-year sentence for first degree criminal damage to property, and
consecutive 5-year sentences for the firearm counts. The four counts of felony
murder were vacated, and a count of aggravated assault against Lowe merged
at sentencing. The Adams brothers’ trial counsel timely filed a motion for a
new trial. New appellate counsel for Leon Adams twice amended the motion.
After hearings held on the motion for a new trial on September 9 and 21, 2021,
the trial court entered an order denying the motion on March 2, 2023. A notice
of appeal was timely filed on March 7, 2023, and the case was docketed in this
Court for the April 2023 term and submitted for decision on the briefs.
support his convictions. He also argues that his trial counsel was
constitutionally ineffective because counsel had an actual conflict of
interest arising out of his joint representation of Leon and his codefendant and brother, Isaiah Adams (“Isaiah”). For the reasons set
forth below, we discern no reversible error and affirm the judgment
of conviction.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. On August 21,
2016, Lowe, who was sitting in the passenger seat of a car driven by
his fiancée, Dobson, was killed when shots were fired from a white
car that had followed the couple from the 29 Degrees nightclub, an
after-hours club in Fulton County where both worked. The
prosecution presented video evidence, witness testimony, and the
defendants’ own admissions to show that Leon, Isaiah, and Malcolm
Pitts were in the white car. The State also presented evidence from
which the jury could infer that the shooting may have been
motivated by an argument that occurred earlier in the nightclub.
The nightclub’s general manager, Omari Ward, testified that around
2
6:00 a.m., as he began ushering people out of the nightclub, a server
came up to him and told him that Leon and Isaiah were arguing with
a bartender over who could drink the most. Ward – who is Leon’s
cousin – approached the men and asked them to leave. Ward
assumed the argument was not serious. Other witnesses testified,
however, that the argument had gotten “heated” and “there was
some pushing and shoving.”
Ward testified that he escorted the Adams brothers outside at
about 6:45 a.m. and then went back inside to work. A video recording
from a security camera outside the club showed Ward stepping
outside briefly with the brothers, talking with them, and then going
back inside the club at 6:52 a.m. At trial, Ward identified the
brothers from the video recording, which was played for the jury,
and also pointed out the brothers’ friend, Malcolm Pitts, who was
wearing a white shirt. Lowe is also visible on the video recording,
but Ward testified that he did not witness any interaction between
Lowe, Pitts, and the Adams brothers. Lowe, who was Ward’s best
friend, worked as a parking lot attendant.
3
Dobson worked at the nightclub as a security guard. After the
nightclub closed, Dobson picked up her pay, left the building, and
walked toward her black Chevy Tahoe. She testified that she
stopped in the parking lot to talk to Lowe and told him she would
wait for him to get off work. At about 6:55 a.m., Lowe got in the front
passenger seat of Dobson’s car, and the two drove off. Dobson
testified that she saw a white car idling nearby, but she thought the
driver was just letting her leave the parking area ahead of them.
Dobson said that, as she turned left out of the parking area, she did
not notice anyone behind her. Video surveillance, however, showed
that the white car – later identified as a white Ford Escape – also
turned left, following her. After driving a few blocks away from the
club, Dobson noticed the white car pulling up along the left side of
her car. She testified that, because she was driving slowly, she
assumed the driver was passing her. When the car was parallel to
her car, she saw an arm extending from the open front, passengerside window. The person wore a long-sleeved, white or light-colored
shirt and held a gun in his hand. And then she heard the first
4
gunshot.
Dobson immediately turned and yelled to Lowe: “Baby, they
are shooting at us.” But Lowe was unresponsive, having been shot
in the left temple. Dobson testified that she heard approximately
four to six gunshots thereafter. The bullets shattered the driver’s
side windows and punctured holes in the driver’s side quarter panel
and the hood of the car. The driver’s-side, rear caution light was also
damaged by the gunfire. Dobson slowed down and stopped, but the
shooting continued. She quickly backed up, turned around, and
drove back to the nightclub to get help. When she arrived at the
nightclub and saw that people were still outside, including Ward,
she honked her car’s horn and began screaming for help. Dobson got
out of her car and fell to the ground, shouting: “Please don’t let him
be dead.” Ward ran to help Lowe, but there was nothing he could do.
Lowe took his “last gasp of air” and died.
When the police arrived at the nightclub, Ward showed them
the video recordings from his security cameras. As he looked at the
recordings with the officers, he identified Pitts and the Adams
5
brothers getting into a white Ford Escape that matched the
description of the car Dobson said had followed her and Lowe. Isaiah
got into the driver’s seat, Pitts got into the front passenger seat, and
Leon got into the back passenger seat. Ward told the police that,
during the weekend before the shooting, he had seen Isaiah with a
.380-caliber handgun and Leon with a pink revolver. He also
testified that Pitts was known to carry a firearm, though he did not
see him with one that night. After reviewing the video recordings,
Ward got into a patrol car with officers and directed them to the
Adams brothers’ home. When they arrived, they saw a white Ford
Escape in the driveway. An officer testified that the car matched the
car seen in the nightclub’s security video recordings.
While Ward showed the officers where the Adams brothers
lived, other officers found and gathered evidence from the roadway
where Dobson said the shooting had occurred. The police recovered
11 shell casings from the roadway. They recovered five 9mm shell
casings, four .40-caliber shell casings, and two .380-caliber shell
casings.
6
On August 22, 2016, the police executed an arrest warrant for
the Adams brothers at their home. Officers knocked at the front
door, and a woman permitted them to enter. When they showed the
woman the warrant, she claimed nobody else was in the residence.
But then Xavier Adams – Isaiah’s twin brother – walked out and
stood next to her, leading the officers to believe that she was lying.
The officers searched the house for the brothers and found Isaiah
hiding in a bedroom and detained him there. They found Leon in the
closet of another room, curled up inside a large storage bin. During
their search for the brothers, the officers saw two handguns in
Isaiah’s room. Upon seeing the weapons, the officers secured the
residence and obtained a search warrant for the home. During the
search that followed, officers found several more firearms (including
handguns, long guns, and semi-automatic rifles), as well as various
types of ammunition. They recovered clothing that appeared to
match clothing worn by the brothers on the day of the shooting, and
they found papers belonging to Pitts.
The firearms recovered included a SAR Arms 9mm handgun.
7
Further investigation revealed that this gun had been stolen from
its owner a few days before the shooting. The owner testified that he
kept the gun in the door panel of his truck. The last time he saw the
gun was during a lunch break, when he was accompanied in his car
by his coworker, Xavier Adams. Also during the search, officers
recovered several cell phones. One of those phones, which was found
in Isaiah Adams’s room, had been used on the evening after the
shooting to conduct over three dozen Internet browser searches for
information regarding the shooting and Lowe’s death.
Pursuant to a search warrant, a GBI crime scene investigator
processed the white Ford Escape for evidence. The investigator
recovered an extended handgun magazine in the pocket on the back
of the driver’s seat. The magazine contained thirteen .380-caliber
bullets. The investigator recovered a 9mm shell casing from beneath
the driver’s seat and cut a piece of cloth from the interior of the car.
The cloth tested positive for gunshot residue.
After Pitts was arrested, the police secured a search warrant
for his residence. During the search, the police found a white hoodie
8
matching what Pitts was seen wearing on the night of the shooting.
The hoodie tested positive for gunshot residue.
The medical examiner who performed Lowe’s autopsy testified
that Lowe had a gunshot entrance wound to the left side of his head.
The bullet traveled through his brain and came to rest against the
right side of his skull. The medical examiner determined that the
gunshot wound to Lowe’s head was the cause of death. The medical
examiner recovered the bullet and turned it over to the GBI.
A GBI firearms examiner analyzed the ballistics evidence
collected from the scene of the shooting, from the medical examiner,
and from the Adams home. The examiner determined that the 9mm
shell casing recovered from beneath the driver’s seat of the Ford
Escape, along with three of the 9mm shell casings recovered from
the scene of the shooting, were all fired from the 9mm SAR Arms
pistol recovered from the Adams residence. The firearms examiner
determined that the bullet recovered from Lowe’s head was a .380
metal-jacketed bullet. He was unable to match that bullet to a
specific firearm, however, as no comparable weapon had been
9
recovered for testing. The examiner opined that, given the many
different types of ammunition found at the scene of shooting, it was
possible that six to eight different firearms had been fired there;
however, at a minimum, two different firearms had been confirmed
as having been used in the shooting: a 9mm and a .380-caliber
weapon. He further testified that “[t]he typical firearm is going to be
about the same sound [level] as a jackhammer, slightly less than the
speed of sound but still loud enough to impair your hearing without
hearing protection.”
Before trial, Leon and Isaiah both gave recorded statements to
the police. The prosecution did not play Leon’s recorded statement
for the jury. Instead, a detective testified that, after waiving his
rights, Leon told him that Isaiah was driving the car. Leon said that,
when he got into the back seat of the car, he was drunk and tired
and immediately fell asleep. He claimed he slept through the
shooting. In Isaiah’s statement, which was played for the jury, he
confirmed that he was driving, that Pitts was in the passenger seat,
and that Leon was in the back seat. Isaiah said that he, too, was
10
drunk that night and that he was surprised when Pitts, without
warning, began shooting two guns out of the passenger side window
at another vehicle. Isaiah believed he heard his brother yelling
something, but it was hard to tell over the gunfire.
On November 12, 2016, Leon called his mother from jail. The
call, which was recorded, was played for the jury. Leon asked his
mother if anyone in the home had “protection,” and she confirmed
that Xavier did. He asked his mother if law enforcement had
obtained two items (which he did not identify directly), one of which
was on top of the refrigerator and one of which was in a cabinet
above the refrigerator. His mother said that Xavier had removed
them from the house. Leon then directed his mother to look for a
folder in a filing cabinet where he hid his things. He told her to be
careful where she puts her finger and not to “pull the trigger.” The
mother can be heard on the recording opening the cabinet drawer,
laughing, and then asking Leon if the object had been there the
whole time. Leon told his mother to give the object to “Shonda.” The
mother said that Shonda was there and she put her on the phone.
11
Leon told Shonda that the gun his mother had just found was the
gun he always kept on his hip, even when he was sleeping, but that
on the night before the search (which was the night following the
shooting), he took the gun off his hip and put it in the cabinet. Leon
commented that, had he not done so, law enforcement would have
found the gun during the search. This gun was not recovered by the
police.
The State also presented evidence that neither Dobson nor
Lowe carried firearms with them on the night of the shooting.
Dobson’s car was in the body shop for almost a month, and she spent
approximately $4,500 to repair the damage done to her car by the
shooters. Finally, certified records establishing that Leon was a
first-offender probationer at the time of the shooting were admitted
in evidence.
Leon argues that the evidence presented at trial and
summarized in part above was not sufficient to support beyond a
reasonable doubt his convictions for malice murder, aggravated
assault, criminal damage to property, possession of a firearm during
12
the commission of a felony, and possession of a firearm by a firstoffender probationer. He contends that the State failed to prove that
he had any motive for shooting at Lowe and Dobson. He also argues
that the evidence was entirely circumstantial and that the State
failed to disprove the reasonable hypothesis that Pitts acted alone,
firing two handguns from the car as Isaiah drove past Dobson and
Lowe. We disagree.
When evaluating the constitutional sufficiency of evidence, the
proper standard of review is whether a rational trier of fact could
have found the defendant guilty beyond a reasonable doubt. See
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). This Court views the evidence in the “light most
favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence.” (Citation and
punctuation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 SE2d
313) (2013). Under Georgia law, a person who “[i]ntentionally aids
or abets in the commission of the crime” may be convicted as a party
to the crime. OCGA § 16-2-20 (a), (b) (3). “Although mere presence
13
at the scene of a crime is not sufficient to prove that one was a party
to the crime, presence, companionship, and conduct before and after
the offense are circumstances from which one’s participation in the
criminal intent may be inferred.” (Citation and punctuation
omitted.) Powell v. State, 291 Ga. 743, 744-745 (1) (733 SE2d 294)
(2012).
Further, under Georgia statutory law, “[t]o warrant a
conviction on circumstantial evidence, the proved facts shall not only
be consistent with the hypothesis of guilt, but shall exclude every
other reasonable hypothesis save that of the guilt of the accused.”
OCGA § 24-14-6. However, “not every hypothesis is a reasonable
one, and the evidence need not exclude every conceivable inference
or hypothesis – only those that are reasonable.” (Citation and
punctuation omitted; emphasis in original). Graves v. State, 306 Ga.
485, 487 (1) (831 SE2d 747) (2019). “Whether alternative hypotheses
are reasonable . . . is principally a question for the jury, and this
Court will not disturb the jury’s finding unless it is insupportable as
a matter of law.” Robinson v. State, 309 Ga. 729, 731 (1) (a) (848
14
SE2d 441) (2020).
The evidence was sufficient as a matter of constitutional due
process for the jury to infer that Leon participated in the crimes and
shared Pitts’ and Isaiah’s criminal intent. The Adams brothers were
involved in a “heated” argument inside the nightclub shortly before
the shooting. The jury could infer from that argument that the
brothers were intoxicated and angry after being kicked out of the
club and that the argument may have motivated their actions. The
brothers and Pitts left the club at the same time, waited together in
an idling car, and then followed Dobson and Lowe from the club.
Given the short period of time between when the three men got into
the car and when Isaiah drove the car alongside Dobson’s car, the
jury could infer that it was unlikely that Leon was, as he claimed,
merely present, drunk, and asleep in the back seat of the car when
the shooting occurred. Likewise, the jury could have readily
concluded that it was unlikely that Leon slept through the gunfire
as he claimed, given how loud it would have been. Also, Leon had
been seen with a gun just days before the shooting, and he said in a
15
recorded jail call that he always kept a gun on his hip, even when
sleeping – perhaps the very gun he asked his friend to remove from
his house. Police recovered from the back pocket of the driver’s seat,
accessible to where Leon had been sitting in the back seat, an
extended magazine for a .380-caliber handgun. The fatal bullet
removed from Lowe’s head was a .380-caliber bullet. Although
Isaiah was known to carry a .380-caliber handgun, and Leon may
have had his own weapon strapped to his hip, the jury could have
inferred that Leon fired Isaiah’s gun, if not his own, because Isaiah
was driving. The jury could also infer from the conversation that
Leon had with his mother that Leon knew which gun was the
murder weapon because he was relieved that it had not been
recovered and wanted it removed from his home.
The State also proved that, in addition to the .380-caliber
handgun used to shoot Lowe, a 9mm handgun was fired into
Dobson’s car. That handgun was discovered in the Adams home in
Isaiah’s room the day following the murder. Further, a cell phone
seized from the Adams home following the brothers’ arrest contained
16
evidence that the phone’s user had, immediately after the shooting,
conducted more than three dozen Internet searches for news about
the shooting. And, when the police came to his home, Leon
attempted to evade them by hiding in a storage bin in a closet – a
fact from which the jury could infer consciousness of guilt.
With respect to Leon’s assertion that he had no motive to shoot
Dobson, “the State need not introduce evidence of motive in order to
support a guilty verdict on the charge of malice murder.” Romer v.
State, 293 Ga. 339, 341 (745 SE2d 637) (2013) (“[W]hile evidence of
motive for the homicide is always relevant in a murder trial, the
State is not required to prove the defendant’s motive for killing the
victim to sustain a murder conviction, since motive is not an
essential element of the crime.” (citations omitted; emphasis in
original)).
The evidence here is sufficient as a matter of constitutional due
process to support the jury’s finding that Leon, acting in concert with
Pitts and Isaiah, was a party to the crimes of malice murder,
aggravated assault, and criminal damage to property, and that he
17
was in possession of a firearm during the commission of a felony. See
Jackson v. Virginia, 443 U. S. at 319 (III) (B); Meadows v. State, 316
Ga. 22, 25 (2) (885 SE2d 780) (2023); Williams v. State, 313 Ga. 325,
328 (1) (869 SE2d 389) (2022). See also OCGA § 16-2-20 (a) (“Every
person concerned in the commission of a crime is a party thereto and
may be . . . convicted of commission of the crime.”). The evidence
adduced also supports the jury’s verdict that Leon committed the
offense of possessing a firearm while on first-offender probation. See
McCain v. State, 300 Ga. 400, 401 (794 SE2d 58) (2016).
Additionally, the evidence was sufficient under OCGA § 24-14-6. Leon’s alternate hypotheses about how the shooting may have
occurred were not reasonable, given the evidence adduced. As the
trial court explained in its order denying Leon’s motion for a new
trial:
[The jury] could eliminate as unpersuasive and
unrealistic the hypotheticals that (1) [Leon] miraculously
dozed through the chaos, (2) the front seat passenger who
was seen [by Dobson] with one gun somehow invisibly
wielded a second one, or (3) the driver used guided bullets
to avoid his two passengers as he strafed Dobson’s vehicle
from back to front.
18
Indeed, the more reasonable hypothesis that the jury was allowed to
credit was that Pitts and Leon were the shooters, and that they fired
on Dobson and Lowe when Isaiah intentionally pulled his car
alongside Dobson’s after following them from the nightclub. See
Lowe v. State, 295 Ga. 623, 625 (1) (759 SE2d 841) (2014)
(“[Q]uestions as to the reasonableness of hypotheses other than the
guilt of the defendant are generally for the jury to decide, and this
Court will not disturb a finding of guilt unless the evidence is
insupportable as a matter of law.”).
2. Leon contends that, as a result of counsel’s joint
representation of him and his brother, he received constitutionally
ineffective assistance of counsel based on “an actual conflict of
interests at trial, with [counsel’s] dual client loyalties affecting his
representation,” and “neither the purported waiver of conflict that
he gave at a pretrial suppression hearing, nor anything else in the
record, shows an enforceable waiver of the conflict.” Assuming,
arguendo, that the written waiver that Leon executed was legally
19
insufficient to waive an actual conflict, we see no merit to his
contention that his trial counsel was laboring under an actual
conflict of interest. 2 Consequently, Leon’s ineffective assistance of
counsel claim fails.
The Sixth Amendment to the United States Constitution
guarantees that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.”
“It is well established that the right to counsel protected by the Sixth
Amendment . . . is the right to the effective assistance of counsel.”
(Citations and punctuation omitted.) Edwards v. Lewis, 283 Ga. 345,
348 (2) (658 SE2d 116) (2008).
“One component of the right to the effective assistance of
counsel is the right to representation that is free of actual conflicts
of interest.” (Emphasis supplied.) Edwards, at 348 (2). Joint
representation alone does not amount to an actual conflict of
2 In assuming, for purposes of evaluating this claim of error, that the
waiver executed by defense counsel and the Adams brothers was invalid, we
do not pretermit or assume the existence of an actual conflict of interest. See
Woods v. State, 275 Ga. 844, 845 (2) (573 SE2d 394) (2002) (addressing question
of actual conflict after assuming waiver invalid).
20
interest. See Burns v. State, 281 Ga. 338, 340 (638 SE2d 229) (2006).
Rather, for purposes of evaluating an ineffective assistance claim,
“‘an actual conflict of interest’ mean[s] precisely a conflict that
affected counsel’s performance – as opposed to a mere theoretical
division of loyalties.” (Emphasis in original.) Mickens v. Taylor, 535
U. S. 162, 171, 172 n.5 (122 SCt 1237, 152 LE2d 291) (2002). See
also Cuyler v. Sullivan, 446 U.S. 335, 349 (IV) (B) (100 SCt 1708, 64
LE2d 333) (1980) (An actual conflict of interest is a conflict that
“actually affected the adequacy of [counsel’s representation.]”).3
3 In Tolbert v. State, 298 Ga. 147, 149 (780 SE2d 298) (2015), we
explained that, when evaluating a claim of ineffective assistance of counsel
based on a conflict of interest, an “actual conflict [is not] something separate
and apart from adverse effect,” which might imply that a defendant is required
to show both an actual conflict and resulting prejudice affecting the outcome of
the trial. Rather, an actual conflict, in this context, is a conflict that actually adversely affected counsel’s representation or performance as defense counsel.
The term “actual conflict” is used to distinguish such conflicts, for which
resulting prejudice to the outcome of the trial is presumed, from those potential
conflicts that are insufficient to support a finding of prejudice to a defendant.
See Mickens, 535 U. S. at 168 (II) (“We have spared the defendant the need of
showing probable effect upon the outcome, and have simply presumed such
effect,” in the ineffective assistance of counsel context “when the defendant’s
attorney actively represented conflicting interests.” The reason being that,
when an actual conflict has occurred “the likelihood that the verdict is
unreliable is so high that a case-by-case inquiry is unnecessary.”); White v.
State, 287 Ga. 713, 722 (699 SE2d 291) (2010) (“In such circumstances, to
obtain relief, the defendant need only demonstrate that the conflict of interest
21
To carry his burden of proving that his appellate counsel
. . . provided ineffective assistance because [counsel] had
a conflict of interest, [the defendant] must show that an
actual conflict of interest significantly and adversely
affected [counsel’s] representation of [the defendant. The
defendant] need not show actual prejudice, that is, a
reasonable probability that the outcome of his motion for
new trial or direct appeal would have been more favorable
to him if [counsel] had not labored under a conflict of
interest. Instead, prejudice is presumed if [the defendant]
demonstrates that the conflict of interest existed and that
it significantly affected [counsel’s] performance.”
(Citations and punctuation omitted.)
existed and that it significantly affected counsel’s performance.”); Cuyler, 446
U. S. at 348-350 (IV) (B), (C) (“[A] possible conflict [of interest] inheres in
almost every instance of multiple representation,” and “the possibility of a
conflict is insufficient to impugn a criminal conviction.”).
The critical question is whether the conflict significantly affected
the representation, not whether it affected the outcome of the
underlying proceedings. That is precisely the difference between
ineffective assistance of counsel claims generally, where prejudice
must be shown [under the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674)
(1984)], and ineffective assistance of counsel claims involving
actual conflicts of interest, which require only a showing of a
significant effect on the representation.
(Citation omitted; emphasis in original.) Hall v. Jackson, 310 Ga. 714, 721 (2)
(a) (854 SE2d 539) (2021). See also Moss v. State, 312 Ga. 202, 205-206 (2) (a)
(862 SE2d 309) (2021) (same). In general parlance, a “conflict of interest” is
one in which “there is a substantial risk that the lawyer’s representation of the
client would be materially and adversely affected by the lawyer’s own interests
or by the lawyer’s duties to another current client, a former client, or a third
person.” (Citation and punctuation omitted; emphasis supplied.) Burns v.
State, 281 Ga. at 339 n.3. Thus, in the ineffective assistance of counsel context, if an alleged conflict is not an actual conflict, this Court often refers to such a conflict as a “potential” conflict. See Hall v. Jackson, 310 Ga. at 721 (2) (a).
22
Hall v. Jackson, 310 Ga. 714, 720 (2) (a) (854 SE2d 539) (2021). See
also State v. Abernathy, 289 Ga. 603, 607 (3) (715 SE2d 48) (2011)
(“[I]n order to establish ineffective assistance arising from a conflict
of interest, a defendant must show the existence of an actual conflict
that adversely affected counsel’s performance.”); Woods v. State, 275
Ga. 844, 845 (2) (573 SE2d 394) (2002) (“The premise of a
defendant’s claim that he was denied conflict-free assistance
because of joint representation must be that his lawyer would have
done something differently if there was no conflict.” (citation and
punctuation omitted)). Further, the alleged actual conflict of interest
must not be “theoretical or speculative”; rather, it must be “palpable
and have a substantial basis in fact.” (Citation omitted.) Mahdi v.
State, 312 Ga. 466, 470 (3) (863 SE2d 133) (2021).
As we review the decision of the trial court on a conflictof-interest claim, we owe no deference to its application of
the law to the facts of this case. We owe substantial
deference, however, to the way in which the trial court
assessed the credibility of witnesses and found the
relevant facts. To that end, we must accept the factual
findings of the trial court unless they are clearly
erroneous, and we must view the evidentiary record in the
light most favorable to the findings and judgment of the
23
trial court.
(Citations omitted.) Tolbert v. State, 298 Ga. 147, 151 (2) (a) (780
SE2d 298) (2015).
After hearing testimony and argument at the motion for a new
trial hearing on Leon’s contentions that his trial counsel’s
performance was adversely affected by the joint representation, the
trial court concluded that Leon had not shown an actual conflict: the
brothers’ defenses were not antagonistic, and their lawyer was never
faced with a fundamental division of loyalties, either due to a plea
opportunity for one brother but not the other or the need to pit one
brother against the other. Because Leon failed to prove an actual
conflict, that is, a conflict that adversely affected counsel’s
representation of him, the trial court found that Leon had not
carried his burden of proving his claim of ineffective assistance of
counsel predicated on an actual conflict of interest. For the reasons
set forth below, Leon has not shown that the trial court’s ruling was
erroneous.
Leon contends that his trial counsel knew that the State’s
24
evidence incriminated Isaiah much more than it incriminated him,
implying that their defenses were antagonistic. He also argues that,
as a result of the joint representation, counsel refrained from
making decisions and pursuing trial strategies that might have
benefitted him, that is, seeking a plea deal for Leon in exchange for
his testimony against Pitts and his brother, using the brothers’
“conflicting” statements and varying levels of cooperation with the
police to Leon’s benefit, crafting a closing argument that emphasized
Leon’s mere presence during the shooting, and moving on Leon’s
behalf for directed verdicts.
However, at the motion for a new trial hearing, defense counsel
testified that, given the evidence in this case, especially the brothers’
statements to the police, he believed that Leon’s only plausible
defense was mere presence. According to counsel, Leon made it very
clear that he was not going to testify against Isaiah and that he was
unwilling to present a defense that painted his brother as Pitts’
accomplice. The brothers steadfastly refused to incriminate each
other, and they were adamant that they would not testify against
25
each other. Thus, as counsel explained, the brothers’ defenses could
be presented in a way that was not antagonistic: Leon was drunk
and asleep in the back seat when Isaiah, the driver, was unwittingly
made a participant in the shooting when Pitts fired at Lowe as
Isaiah passed Dobson’s car.
Further, according to defense counsel, neither brother
expressed a desire to seek a plea deal. Nevertheless, counsel
inquired whether the prosecution had any plea offers. Counsel
testified that he dealt with two different prosecutors, both of whom
informed him that they would only accept guilty pleas if the brothers
agreed to sentences of life in prison. Neither prosecutor expressed
interest in allowing either brother to plead to a lesser charge in
exchange for testimony against the other defendants. Consequently,
a plea deal was unavailable even if one of the brothers had been
interested in a deal and was represented by his own attorney.
With respect to the brothers’ statements, the record shows
that, although they were not entirely consistent, they were not
contradictory. Isaiah said he thought he heard Leon shouting over
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the gunfire; Leon claimed he was drunk and fell asleep in the back
seat of the car. Trial counsel explained that, even if the brothers
were tried separately, their respective attorneys would still have to
find a way to explain Leon’s statement denying any awareness of
the shooting while his brother said that he thought he heard Leon
shouting. Counsel’s closing argument shows that he attempted to
harmonize the statements, focusing on their consistencies, and
blamed Pitts entirely for the shooting.
Leon also complains that he and his brother had competing
interests at trial because Isaiah, unlike him, was a more
“cooperative” defendant. At the hearing on Leon’s motion for a new
trial, trial counsel explained that he understood that Isaiah was “in
more peril” than Leon and that Isaiah’s cooperation with law
enforcement was an effort to mitigate his involvement in the
shooting. Although the record shows that Leon was, indeed, less
cooperative with the police than his brother, counsel presented the
jury with a reasonable explanation for that. During the trial, a
prosecutor asked a detective this question: “Is it fair to say that
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everything Leon did [in his interview] was deny everything about
that day,” to which the detective responded: “Yes.” Defense counsel
then revisited this issue during cross-examination, reframing Leon’s
denials as Leon simply being unwilling to participate in the
investigation, which, as counsel asserted and as the detective
agreed, a criminal defendant has the right to do. Then, during
closing argument, trial counsel argued to the jury:
So that leaves us with the individual who sort of puts this
together for us, doesn’t it. That would be Isaiah. First off,
you heard that both Isaiah and Leon were interviewed by
Investigator Garcia. Garcia testified that in his opinion
Isaiah was cooperative. Leon not so much, but he also told
you that that’s Leon’s right. Just like he doesn’t have to
talk in court today, he doesn’t have to say anything to
investigators. It’s not his job.
Again, counsel made choices intended to harmonize the brother’s
defenses. Counsel has not shown that Isaiah’s cooperativeness
resulted in the brothers’ defenses being antagonistic. There is no
evidence that either brother tried to shift the blame to the other. To
the contrary, their defenses were consistent: Pitts acted alone.
With respect to why he did not move for any directed verdicts,
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counsel did not recall why he did not. However, Leon has not shown
that separate counsel would have chosen to pursue a motion for a
directed verdict on any of the charged offenses under circumstances
such as these, where there is no evidence that Leon would have been
entitled to a directed verdict.4
Given the evidence in this case, Leon has not shown that any
of the trial court’s factual findings were erroneous or that the joint
representation adversely affected counsel’s representation of him
and, therefore, constituted an actual conflict of interest. At best,
Leon has only speculated that counsel’s efforts and strategic choices
were the result of a potential conflict of interest inherent in joint
representation. Consequently, the trial court did not err in denying
Leon’s motion for a new trial on his claim of ineffective assistance of
counsel predicated on an actual conflict of interest arising from his
4 The trial court may direct a verdict “[w]here there is no conflict in the
evidence and the evidence introduced with all reasonable deductions and
inferences therefrom shall demand a verdict of acquittal or ‘not guilty[.]’”
OCGA § 17-9-1. Leon has not shown that the evidence demanded a verdict in
his favor. Moreover, as set forth in Division 1, the evidence presented was
sufficient to sustain Leon’s convictions beyond a reasonable doubt.
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joint representation. See, e.g., Mahdi v. State, 312 Ga. at 470 (3)
(The defendant’s claim of a conflict of interest was “at best a matter
of theory or speculation” insufficient to show an actual conflict and
support a claim of ineffective assistance of counsel.); Woods v. State,
275 Ga. at 846 (2) (no actual conflict shown where the record fails to
establish that, but for the alleged conflict, counsel “would have done
something differently”); Henry v. State, 269 Ga. 851, 854 (3) (507
SE2d 419) (1998) (For a criminal defendant to show counsel was
ineffective due to a conflict of interest, “the conflict of interest must
be palpable and have a substantial basis in fact. A theoretical or
speculative conflict will not impugn a conviction . . . which is
supported by competent evidence.” (citation and punctuation
omitted)).
Judgment affirmed. All the Justices concur.
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