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: August 21, 2023
S23A0465. HATCHER v. THE STATE.
ELLINGTON, Justice.
A Liberty County jury found Perry Lee Hatcher, Jr., guilty of
felony murder and cruelty to children in the third degree in
connection with the shooting death of his wife, Dashea Hatcher, in
the presence of their son, M. H. 1 Hatcher contends that his attorney
was ineffective for failing to object to the qualifications of the State’s
1 The crimes occurred on November 5, 2014. On February 9, 2016, a
Liberty County grand jury indicted Hatcher for malice murder, felony murder,
aggravated assault, cruelty to children in the first degree, and cruelty to
children in the third degree. During a trial that began on December 5, 2016,
the jury found Hatcher guilty of felony murder, aggravated assault, and cruelty
to children in the third degree. However, the jury found Hatcher not guilty of
malice murder and cruelty to children in the first degree. On January 13, 2017,
the trial court sentenced Hatcher to serve life in prison for the felony murder
count, merged the aggravated assault count, and imposed a 12-month
consecutive sentence for cruelty to children in the third degree. On January
27, 2017, Hatcher timely filed a motion for a new trial. The motion was heard
on July 5, 2022, and denied on November 9, 2022. On November 18, 2022,
Hatcher filed a timely notice of appeal. The appeal was docketed in this Court
to the April 2023 term and submitted for a decision on the briefs.
expert witness and to rebut the expert’s opinion concerning fibers
found on the murder weapon. Because Hatcher failed to carry his
burden of showing ineffective assistance of counsel, we affirm the
trial court’s order denying his motion for a new trial.
1. The evidence admitted at trial shows the following. At about
2:50 a.m. on November 5, 2014, Hatcher called 911 from his home in
Hinesville, in Liberty County, and reported that his wife had shot
herself. Officers responded to the home within minutes of the call.
Hatcher, who was holding his baby, M. H., told the officers that
Dashea had shot herself and that her body was upstairs.
One officer went upstairs to the master bedroom and saw
Dashea lying in bed in a pool of blood. He saw a gun lying on her
abdomen. This officer stood guard to make sure there was no
unauthorized entry into the bedroom or any tampering with
evidence. He testified that, as his sergeant, other officers, and
paramedics arrived, he saw no one touch or move evidence at the
crime scene before its location had been documented. The sergeant
testified that he saw Dashea lying in bed with a gunshot wound to
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her left cheek and a cell phone and a handgun on her abdomen. He
video-recorded the scene shortly before the paramedics arrived.
When Detective Joshua Heath arrived, he photographed the
bedroom and Dashea’s body. He testified that he observed a Sig
Sauer 9mm pistol lying on Dashea’s stomach just below her breasts.
He saw a pink cell phone below the gun and blood on Dashea’s shirt
and thighs. Although there was blood spatter on Dashea’s body and
clothing, the gun and cell phone appeared clean. He also noticed a
child’s pacifier resting between Dashea’s thighs. He observed a
wound on her left cheek with a powder burn around it. The crimescene photographs show that Dashea’s left arm rested against her
left hip, her right arm rested against the pillow to the right of her
head, and the handgun rested on her abdomen with the butt of the
pistol pointing left. As Hatcher would later testify, Dashea was
right-handed. Dashea’s left contact lens had come out of her eye and
had fallen to her right side. An unfired 9mm round rested between
her upper thigh and the bed. Near Dashea’s left side was a spent
9mm shell casing. Another unfired 9mm round was found at the foot
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of the bed.
Detective Heath picked up the gun using gloves and, to make
the weapon safe, he removed the magazine, which still contained
rounds of ammunition. When he pulled back the slide to check the
chamber, he saw that there was no round in the chamber. The
detective, who had experience handling firearms in both the Army
and the police force, testified that he found this “very surprising”
because, when this type of a pistol is fired, the next round in the
magazine ordinarily loads into the chamber once the spent shell
casing has been ejected and the slide moves forward. Detective
Heath also determined that no bullet was jammed in the barrel or
the magazine.
When an officer swabbed Dashea’s and Hatcher’s hands for
gunshot residue, Hatcher said: “I was up there, so there’s gonna be
residue on my hands.” He also said that he purchased the firearm
because there had been burglaries in the area. M. H.’s skin and
clothing were not tested for gunpowder residue. However,
photographs of M. H. taken at the scene showed blood spatter on the
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back of his clothing.
When Detective Gail Poulsen arrived on scene, she asked
Hatcher for his account of what happened. Hatcher said that he and
his wife had argued in the master bedroom about a message she had
seen on his Facebook page concerning a friend’s lawn-mowing
service. He showed the detective the messages on his tablet. He said
that he went to sleep in the guest bedroom, but that Dashea followed
him and hit him. They argued, and then she returned to the master
bedroom. A few moments later, he heard a gunshot. He ran to the
bedroom and saw his wife lying in the bed with a wound to her face
and M. H. in her lap. After Hatcher made this statement, Detective
Poulsen helped process and photograph the scene. The following
day, one of Hatcher’s neighbors told investigators that she thought
it was strange that, just before the shooting, Dashea had changed
her Facebook profile picture from one including her husband to one
showing just her and her son.
The Hinesville Police Department contacted Danny Routh,
who worked part-time as a crime-scene technician with the City of
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Richmond Hill, for assistance in recovering fingerprint evidence
from the gun. Routh testified that he processed the gun using an
ultraviolet imaging system that he had used over 50 times before.
Routh testified that he had been a law enforcement officer for
31 years. When he was promoted to detective in 1998, he started
processing crime-scene evidence in his cases because his department
had no crime-scene technician. He trained in crime scene processing
at the Georgia Public Safety Training Center and did an internship
with Chatham County. He was thereafter certified as a crime-scene
technician. He testified that he had processed over 750 crime scenes
by the time of Hatcher’s trial. He testified that he had also received
training from the company that manufactured a reflective
ultraviolet imaging system that he used to examine objects for
fingerprints without damaging the fingerprints. After being crossexamined on his qualifications by defense counsel at trial, Routh
was admitted without objection as an expert in his field as a crimescene technician.
Routh testified that he found one fingerprint on the gun’s slide
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using the ultraviolet light imaging system. He also noticed what
appeared to be “lint” on the gun that was not visible to the naked
eye. He opined that the gun may have been “wiped down,” given that
he found only one fingerprint and a few fibers. He testified that the
fibers “could have been any color” but appeared blue to him through
his camera lens. He agreed that it was possible that the fibers could
have come from a black scarf that Dashea was wearing when she
died. Hatcher’s forensic expert, Christopher Robinson, disputed that
Routh’s ultraviolet light images showed fibers on the gun. Robinson
opined that the images showed blood spatter on the gun, given their
shape, which he described as “punctate marks.” He said that fibers
would appear more elongated. However, the trial court would later
find that Robinson had no training in identifying blood and
instructed the jury to disregard his testimony, based solely on a
visual inspection, about the presence of blood spatter on the gun.
After Routh conducted his analysis, the Hinesville Police
Department sent the gun to the GBI Crime Lab for further analysis.
A forensic technician processed the gun and found evidence that
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Routh had missed: five partial latent prints (none of which were
complete enough to be identified), and three faint stains on the slide,
two of which were confirmed through DNA testing to be Dashea’s
blood. The technician testified that useable fingerprints could have
been wiped away by the investigators who initially handled the
weapon. No blood was found on the cell phone. A forensic
examination of the gun revealed that it was working normally. The
cartridge casing recovered from the scene matched cartridges testfired from the gun. The gunshot residue test kits from Hatcher’s and
Dashea’s hands both indicated the presence of gunshot residue. A
forensic technician testified that the presence of particles could
indicate that a person had fired a weapon, was in close proximity of
the discharge, or had handled an item with gunshot residue on it.
Dr. Edmund Donoghue performed the autopsy of Dashea’s
body on November 5, 2014. He observed a gunshot wound on the left
side of her face and a bullet inside the right side of her skull. The
bullet traveled front to back, left to right, and upward. He observed
a ring of abrasion and soot around the wound entrance. Dr.
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Donoghue estimated the gun was fired about two to three inches
from Dashea’s left cheek, given the presence of gunpowder stippling
measuring about two inches around the entry wound.
Dr. Donoghue testified that, in his experience, suicide wounds
are primarily contact wounds, with the most common occurring
either on the right temple, in the mouth, below the chin, or on the
chest. He testified that, in his experience, more men than women
use a firearm to commit suicide, with the ratio being about 70
percent to 30 percent, respectively. Captain James Snider, who was
working at the Hinesville Police Department as a detective in 2014,
also testified that, in his experience, women generally do not commit
suicide with a firearm.
Captain Snider interviewed Hatcher on November 17 at the
police department. He reviewed with Hatcher his Miranda 2 rights.
Hatcher agreed to waive them and signed a waiver-of-rights form.
During the interview, Hatcher maintained that he did not shoot his
wife. He said he heard a gunshot, went to the bedroom, and saw M.
2 Miranda v. Arizona, 384 U. S. 436 (86 S. Ct. 1602, 16 LE2d 694) (1966).
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H. lying on Dashea’s lap. He said that he did not pick up the gun;
rather, he slid it aside when he grabbed his son. He said that his
wife had been upset at him for not answering the phone when he
was playing basketball at the gym. He said that he had asked her
for a divorce. He also said that, after Dashea’s death, he agreed to
relinquish his parental rights to M. H. to his in-laws if they paid him
$150,000.
The State presented evidence showing that, although Dashea
had bouts of depression in the past and post-partum depression
following M. H.’s birth, she had received treatment for her
depression and was not suicidal. She even jokingly told one friend
that, no matter how depressed she got, she would never kill herself
because that would mean leaving M. H. with Hatcher. The State also
presented friends and family members of the couple who testified
that the Hatchers’ marriage was troubled, that Hatcher drank
excessively, and that he had numerous affairs. Dashea’s mother
testified that Hatcher contacted her when Dashea was pregnant and
confessed that he did not think that he and Dashea would be able to
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make their marriage work. He admitted to her that he was a “liar”
and a “cheat” and that he had been “having a texting conversation
with another female.” Dashea’s mother observed that, after M. H.
was born, Hatcher appeared distant and would sit in the garage by
himself, sometimes with a beer or cigar. Dashea told her mother that
Hatcher did not interact with his family.
The State presented evidence that, on the night of November 4
and early into the morning of November 5, 2014, Dashea was
exchanging text messages with a friend in California. The texts
show that, near midnight, Dashea informed her friend that she was
packing up M. H.’s clothing and preparing to move to South
Carolina, where she had family. Dashea said she wanted a divorce
because she had caught her husband texting another woman and
was “basically fed up and taking the baby to her mom.” She also
knew that Hatcher had asked his mother about how to get a divorce.
Dashea said she intended to get alimony and child support. The
friend offered her reassurance, telling her to focus on M. H. Dashea
sent her last message at 2:08 a.m. – about 40 minutes before
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Hatcher called 911. The friend did not call Dashea that night
because she saw no reason to; Dashea had complained about
Hatcher’s behavior before, and her texts were not “abnormal.” The
friend testified that the couple argued often and that, on an occasion
when she was staying with them, she had witnessed Dashea and
Hatcher having a heated argument that resulted in Hatcher packing
a bag and leaving the house as Dashea followed, demanding that he
explain where he had been and where he was going.
Another one of Dashea’s friends testified that Hatcher’s
behavior after Dashea’s death was unusual and that it appeared like
he was celebrating. The witness testified that Hatcher turned on
music and danced during a gathering of family and close friends who
were grieving Dashea’s death. After Dashea’s funeral, her parents
sought a temporary custody order for M. H. Thereafter, according to
Dashea’s mother, Hatcher offered to relinquish his parental rights
to them if they would pay him $150,000. Hatcher suggested they get
the money from the beneficiary of Dashea’s life insurance policy.
Dashea’s mother testified that she later learned that Dashea had
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named her aunt as a beneficiary. Because Hatcher, like Dashea, was
in the Army, he knew that Dashea was covered by an insurance
policy. Dashea’s parents agreed to Hatcher’s offer, though they
never received any insurance proceeds. Dashea’s mother recorded a
conversation with Hatcher about the agreement, which was played
for the jury. Their agreement, which was reduced to writing and
signed, was also introduced in evidence.
The State also presented testimony from two women with
whom Hatcher had had affairs while he was married to Dashea. One
of these women testified that, when she was visiting Hatcher in his
home in October 2014, he told her that the baby items present in his
home belonged to “his sister.” Just days before Dashea’s death, he
told this woman that he wanted to “wife” her and “put a ring on her.”
The last time this witness saw Hatcher, in early November, he told
her that his “ex-girlfriend passed away.”
Another woman who had been Hatcher’s girlfriend in 2012 and
2013, testified that she had reconnected with Hatcher in 2014, after
he returned from Afghanistan, and they resumed a sexual
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relationship. At the time, she was unaware that Hatcher was
engaged to Dashea. When she learned of the engagement, Hatcher
told her there was “a baby involved.” Later, Hatcher admitted to her
that he was married but said that he was getting a divorce. The
State presented evidence that Hatcher texted extensively with this
woman during October and November and that the two professed
love for each other. On November 4, 2014, at 10:16 p.m., Hatcher
told this woman that he was going to be “in the field” for the next
month. When she invited him to stay with her during the holidays,
he responded that he was at a friend’s house but that he had no
plans for the holidays. She also asked to see his divorce papers, but
Hatcher did not reply until November 8, when he texted her that his
“ex-wife” had died.
Hatcher testified in his defense at trial. He said that, on the
night of November 4, he had been downstairs playing Xbox games
while Dashea was taking care of M. H. upstairs. He said he went
upstairs around 11:00 p.m. to go to bed and was later awakened by
Dashea standing over him, accusing him of cheating. He claimed
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that she threw his phone at him and called him a cheater and then
punched him in the face and chest. He said he got out of bed to lie
down in the spare bedroom, but, after he dozed off, she came in and
yelled at him again and hit him. When M. H. started crying, Dashea
returned to the master bedroom and yelled at her son. Then it got
quiet, and he heard a gun go off. Hatcher testified that he ran to the
bedroom, where he saw Dashea with a gunshot wound to her head
and the baby “across her lap.” He said he used two fingers to push
the gun away, which he said was lying on his son’s arm. He grabbed
M. H. and then called 911.
Hatcher also claimed that exchanging his parental rights for
$150,000 was Dashea’s mother’s idea. He denied knowing the
identity of the beneficiary of Dashea’s life insurance policy. He
admitted, however, that he had lied to his girlfriends multiple times
about his marital status. On cross-examination, he claimed that he
did not think it was relevant to tell the police about his affairs.
Finally, he confirmed that Dashea was right-handed.
2. Hatcher contends that his trial counsel rendered
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constitutionally ineffective assistance by failing to object to Routh’s
fiber-evidence opinion testimony on the ground that Routh was not
qualified as an expert on fiber evidence. He also argues that counsel
was deficient in failing to present expert testimony rebutting
Routh’s opinion. While Routh’s testimony with respect to blood and
fingerprint evidence on the gun was contradicted by GBI experts, no
witness contradicted Routh’s testimony that fibers were present on
the gun. Thus, Hatcher argues, even if Routh was qualified to testify
as he did, trial counsel was constitutionally deficient in failing to
rebut this testimony. Further, during the hearing on his motion for
a new trial, Hatcher presented evidence that the State had disclosed
during discovery an unsigned GBI report showing that the gun had
been “examined for the purpose of collecting and preserving
potential hair and/or fiber, and none were found.” Trial counsel did
not speak with the author of the report prior to trial and did not
present that person as a witness. Hatcher argues that counsel’s
failure to effectively rebut Routh’s testimony with this report
prejudiced Hatcher because Routh’s testimony provided a basis for
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the jury to infer that he had “wiped down” the gun to remove his
fingerprints. For the following reasons, the trial court did not err in
denying Hatcher’s motion for a new trial on ineffective assistance of
counsel grounds.
To prevail on his claim of ineffective assistance of trial counsel,
Hatcher must prove both that his counsel’s performance was
professionally deficient and that he was prejudiced by the deficient
performance. See Strickland v. Washington, 466 U. S. 668, 687 (III)
(104 SCt 2052, 80 LE2d 674) (1984); Terry v. State, 284 Ga. 119, 120
(2) (663 SE2d 704) (2008). To prove deficient performance, Hatcher
must show that his counsel performed “in an objectively
unreasonable way considering all the circumstances and in the light
of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344
(3) (745 SE2d 637) (2013). To prove prejudice, Hatcher “must show
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U. S. at 694
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(III) (B). “This burden is a heavy one[.]” (Citation omitted.)Young v.
State, 305 Ga. 92, 97 (5) (823 SE2d 774) (2019). And if Hatcher fails
to prove either the deficiency or the prejudice prong, this Court need
not examine the other prong of the Strickland test. See Palmer v.
State, 303 Ga. 810, 816 (IV) (814 SE2d 718) (2018).
Pretermitting whether trial counsel was constitutionally
deficient in his failure to object to Routh’s qualifications to give fiberevidence testimony or his failure to rebut that testimony with the
GBI fiber-evidence report, Hatcher has failed to show a reasonable
probability that, in the absence of counsel’s allegedly deficient
performance, the outcome of his trial would have been different. See
Strickland, 466 U.S. at 694 (III) (B). First, counsel effectively
challenged Routh’s testimony in other ways, and second, the State’s
case against Hatcher was strong even without Routh’s testimony.
On cross-examination, Routh admitted that what he believed
were fibers on the gun could have come from other sources, including
the scarf Dashea was found wearing around her neck. GBI forensic
witnesses testified that they – unlike Routh – had found blood and
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a number of partial latent finger prints on the gun, but none of those
witnesses testified concerning the presence of fibers. A witness also
testified that is was possible that fingerprint evidence may have
been compromised by the investigators who initially handled the
weapon. Thus, Routh’s testimony that he saw fibers on the gun was
not conclusive evidence that the gun had been “wiped down.”
Finally, although Hatcher’s expert, Robinson, was disqualified from
giving testimony about alleged blood spatter on the gun, he was not
disqualified from testifying that he did not believe Routh’s
ultraviolet system images showed the presence of fibers on the gun.
Based on this evidence, defense counsel argued that Routh was
speculating as to presence of and source of any fibers, that he “didn’t
know what he was doing[,] and the State didn’t have the proper
controls in place to stop that evidence [derived from the gun] from
being tainted.” Thus, the record shows that Routh’s testimony
concerning the presence of fibers on the gun and his opinion that the
gun had been “wiped down” was, indeed, challenged.
But, even if the jury credited Routh’s opinion testimony that
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Hatcher had wiped evidence from the gun, that testimony was not
critical to proving that Hatcher shot Dashea. The record shows that
several witnesses testified that Dashea did not appear suicidal to
them. They testified that Dashea sought treatment for her postpartum depression, she loved her son, she was happy to be a mother,
and she was actively packing to move to South Carolina to be with
family who were supportive of her. She told a friend that she would
not kill herself because that would mean leaving her son with
Hatcher. The record also shows that Dashea planned to divorce
Hatcher. She was “fed up” with his drinking, his dishonesty, and his
infidelities. Hatcher, on the other hand, was an admitted cheater
and liar who had a motive to kill his wife. He wanted out of his
marriage, but he did not want to pay child support or alimony. In
fact, he tried to sell his parental rights to his child’s grandmother.
The jury also heard expert forensic testimony from which they
could infer that it was unlikely that Dashea had shot herself while
sitting in bed, holding her baby, as Hatcher had testified. As the
prosecutor argued in closing, in order for Dashea, who was right20
handed, to inflict the fatal injury that she suffered, she would have
had to reach across her body with her right hand and over or around
her baby with a loaded firearm and then twist either her head or her
hand to aim the gun at her left cheek. Although it is possible that
Dashea shot herself with her non-dominant hand, the evidence
shows that Dashea’s left hand rested on top of her left hip and not
next to her head. And the gun, which had very little blood on it, was
found lying in the middle Dashea’s abdomen instead of near her
head or on the left side of her body.
The State argued, based on the following evidence, that it was
more likely that Hatcher had shot Dashea during an altercation in
the bedroom and then staged the scene to make it appear that
Dashea had committed suicide. Hatcher testified that, during a
heated argument about his cheating, Dashea struck him repeatedly
and yelled at him. The prosecutor argued that the forensic evidence
was consistent with the shooting having occurred during a struggle,
not while Dashea was sitting in bed with her son on her lap. For
example, a shell casing was on the floor to the left side of the bed;
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one unfired round was beneath Dashea’s body and another at the
foot of the bed; no blood spatter was on Dashea’s cell phone; and
someone had likely cleared the gun of the round in the chamber after
it had been fired. Hatcher also had gunpowder residue on his hands,
which was inconsistent with his testimony that he was not in close
proximity to the gun when it was fired and that, after he ran into
the Dashea’s bedroom, he just slid the gun away from M. H. with
two fingers. Although there was no blood spatter on Hatcher, the
record supports an inference that he had time to stage the scene and
change clothes before he called the police.
In light of the challenges counsel did make against Routh’s
testimony as well as the strength of the State’s case against Hatcher
even apart from Routh’s testimony, Hatcher has failed to carry his
burden of showing a reasonable probability that the jury would not
have found him guilty of the crimes charged. The jury had ample
evidence from which to conclude that Hatcher and Dashea argued
and that Dashea’s death occurred as a result of an aggravated
assault by an admittedly unfaithful husband who wanted out of his
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marriage without having to pay alimony and child support.
Consequently, because Hatcher has failed to show a reasonable
probability that the outcome of his trial would have been different
in the absence of his counsel’s allegedly deficient performance, his
claim of ineffective assistance fails. See, e.g., Moss v. State, 311 Ga.
123, 126, 128 (2) (a) (856 SE2d 280) (2021) (Pretermitting whether
trial counsel was constitutionally deficient in his failure to introduce
gunshot residue and fingerprint reports, considering the totality of
the evidence, the defendant failed to show a reasonable probability
that, in the absence of the alleged deficient performance, the
outcome of the trial would have been different.); Revere v. State, 302
Ga. 44, 48-49 (2) (a) (805 SE2d 69) (2017) (Counsel’s deficient
performance in failing to object to certain character evidence was
not prejudicial because, considering the totality of the evidence,
there was no reasonable probability that, in the absence of that
deficient performance, the outcome of the trial would have been
different.).
Judgment affirmed. All the Justices concur.
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