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: December 10, 2024
S24A1163. TROUTMAN v. THE STATE.
PETERSON, Presiding Justice.
Andrew Troutman appeals his malice murder conviction for
the stabbing death of Earl Clemons. 1 Troutman argues that (1) the
evidence was insufficient to support his conviction under both
federal due process and OCGA § 24-14-6; (2) the State committed
1 The stabbing occurred in January 2014. A DeKalb County grand jury
indicted Troutman on April 16, 2014, charging him with malice murder (Count
1), felony murder predicated on aggravated assault (Count 2), and aggravated
assault (Count 3). In a pre-trial appeal, the State challenged the trial court’s
order suppressing a statement that Troutman made to police. This Court
affirmed in part and reversed in part, holding that the statement in question
was taken in violation of Miranda but was not involuntary as a matter of due
process. See State v. Troutman, 300 Ga. 616 (797 SE2d 72) (2017). On remand,
at an August 2019 trial, the jury found Troutman guilty of all counts. The trial
court sentenced Troutman to life with the possibility of parole for Count 1,
vacated Count 2, and merged Count 3 with Count 1. Troutman timely moved
for a new trial on September 10, 2019, and amended that motion through
appellate counsel on February 12, 2024. After a hearing on March 8, 2024, the
trial court denied that motion in an order entered on March 25, 2024.
Troutman filed a timely notice of appeal, and the case was docketed to this
Court’s August 2024 term and submitted for a decision on the briefs.
prosecutorial misconduct; and (3) trial counsel rendered ineffective
assistance. We conclude that the evidence was constitutionally
sufficient, and OCGA § 24-14-6 does not apply. Some of the claims
of prosecutorial misconduct were not preserved for our review, and
the others were resolved in Troutman’s favor below. With respect to
Troutman’s various claims of ineffective assistance, we conclude
that Troutman has not proven prejudice from either of two identified
or assumed deficiencies, even when considered collectively. We
affirm.
The evidence at trial showed the following. Troutman, a 21-year-old high school student, and Clemons, a student at DeVry
University, were friends. But their friendship deteriorated when
Clemons and a mutual friend whom Troutman had dated, Marlana
Ackey, created a fake Facebook profile featuring naked photos of
Troutman. Troutman thereafter threatened Clemons and Ackey,
stating that he was going to cut Clemons’s throat.
On January 22, 2014, Troutman appeared at DeVry looking for
Clemons, apparently upset about something. On January 24,
2
Troutman used someone else’s phone to call Clemons and convinced
him to meet up at a vacant DeVry campus building located in
DeKalb County.
A security guard patrolling the area of the vacant building on
the morning of January 25 discovered Clemons’s dead body lying on
the ground outside. Clemons had been stabbed several times in the
neck and abdomen; the medical examiner testified that these
wounds were the cause of death. Clemons’s penis also had been
slashed several times; the medical examiner opined that these were
likely post-mortem injuries.
Troutman gave extensive statements to the police. In the
portion of the statements played for the jury, Troutman said that he
had planned to meet up with Clemons to discuss their estrangement
but changed his mind. Troutman asked police if turning off a cell
phone would prevent the police from tracking the owner’s location.
The jury heard Troutman tell police he was “kind of happy and glad
3
he’s dead[.]”2
A cell phone associated with Troutman did not make or receive
any phone calls or send or receive any texts on January 22, 23, or
24, 2014, and the phone’s location during that time could not be
determined. Troutman’s MARTA card records and surveillance
photos show that on January 24 Troutman arrived at the Avondale
MARTA station at 4:21 p.m. and exited from the Decatur MARTA
station at 4:32 p.m. 3 A detective testified that Troutman told him he
caught a bus from his high school to the Decatur area that day,
which contradicted MARTA records. 4 The Avondale station is the
MARTA station closest to the vacant DeVry building, about a mile
2 Troutman eventually admitted to police that he killed Clemons —
although he tried to suggest that Clemons was stabbed accidentally while the
two were tussling — but the trial court suppressed that portion of the interview
on Miranda grounds, a ruling affirmed by this Court on an interlocutory appeal
by the State. See Troutman, 300 Ga. at 617-618 (1). That evidence was not
admitted at trial, and so we do not consider it in evaluating the sufficiency of
the evidence or any of the other issues raised in this appeal.
3 As part of the defense case, Troutman called a MARTA manager and
elicited her testimony that passengers sometimes enter MARTA buses and rail
stations without swiping their MARTA Breeze card, such that their ride is not
reflected in MARTA transaction records.
4 The portion of Troutman’s statement to police admitted at trial was not
entirely clear on that point.
4
away. Troutman did not use his MARTA card again until boarding
a bus at 5:57 p.m. later that day. The State also presented evidence
that a fake DeVry student identification card with Troutman’s
picture but a different name was recovered from Troutman’s
bedroom.
According to testimony by Troutman’s uncle, who lived with
Troutman and his mother at the time of the murder, at some point
on January 24, Troutman returned home and told his uncle that he
had just killed someone and stolen a pack of cigarettes from him.
The uncle testified that Troutman previously had discussed having
“a beef with someone” because that person “told some lies on him.”5
The jury also heard the testimony of Ackey, as well as
5 In addition to eliciting this testimony, the State admitted an audiorecorded statement to police from March 2016 in which the uncle said that on
the day of Clemons’s murder, Troutman told him he and someone else had
killed someone and taken the person’s cigarettes. During cross-examination,
the uncle acknowledged telling a detective in January 2014 that on January
24 Troutman had not said anything about getting into a physical altercation
with anyone that day, that he did not see any blood on Troutman’s clothes
when he arrived home, and that Troutman did not “have a knife or cutting
instrument on him” that day. A written statement from this interview,
admitted into evidence, indicated that the uncle said he could not be sure of
when he got home that day “because of medication and drinking beer[.]”
5
recordings of unusual phone conversations between Ackey and
Troutman. While Troutman was out on bond, Ackey reconnected
with him in an unusual way, creating a Facebook page in which she
held herself out as “Princess Franco” so that Troutman would
communicate with her. Eventually the two communicated in phone
conversations, recorded by Clemons’s mother, in which Ackey
pretended to be “Princess Franco”; recordings were admitted into
evidence and played for the jury. In the recorded conversations,
Troutman said that he had stabbed Clemons (although Troutman
denied mutilating Clemons’s penis) and discarded the knife in an
incinerator at his mother’s job. Troutman said that Clemons at one
point “tried to defend himself” and “tried to swing,” but “it was too
late.” Troutman bragged that no DNA would be found on his own
clothing. Troutman said that he “loathed” Clemons and “started
laughing” when he saw a picture of Clemons’s dead body.
At trial, Troutman did not testify and presented an alibi
defense. Troutman also sought to undermine the credibility of his
uncle and suggested that Troutman’s statements to his former
6
girlfriend were fabrications designed to impress her. The jury found
him guilty of all charges.
1. Troutman first argues that the evidence was insufficient to
support his conviction. We disagree.
In arguing that the evidence was insufficient, Troutman cites
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979),
which articulates the standard for evaluating the sufficiency of the
evidence as a matter of constitutional due process. Applying that
standard, we view the evidence in the light most favorable to the
verdict and inquire whether a rational trier of fact could have found
the defendant guilty beyond a reasonable doubt. See id. at 319.
“Under this review, we must put aside any questions about
conflicting evidence, the credibility of witnesses, or the weight of the
evidence, leaving the resolution of such things to the discretion of
the trier of fact.” Mims v. State, 304 Ga. 851, 853 (1) (a) (823 SE2d
325) (2019) (citation and punctuation omitted).
Examining the record here in the light of that standard, the
evidence admitted at trial was sufficient to authorize the jury’s
7
verdict on the malice murder count. That evidence included, among
other things, evidence that Troutman had threatened to cut the
victim’s throat and that he later confessed to the stabbing to at least
two different people — his uncle and his former girlfriend. In
arguing that the evidence was insufficient, Troutman argues that
those incriminating statements “were shown to be the ramblings of
an unhealthy mind[.]”He also argues that because MARTA records
(used by the State to suggest Troutman lied to police about his
whereabouts) are not always accurate, any discrepancy between the
records and his statements is not “persuasive.” But, again, it was up
to the jury to consider the weight of, and resolve any conflicts in, the
evidence. Troutman also points to a lack of eyewitnesses and
surveillance video, but “[a]lthough the State is required to prove its
case with competent evidence, there is no requirement that it prove
its case with any particular sort of evidence.” Plez v. State, 300 Ga.
505, 506 (1) (796 SE2d 704) (2017).
Troutman also cites OCGA § 24-14-6, which provides that “[t]o
warrant a conviction on circumstantial evidence, the proved facts
8
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.” But “if there is any direct evidence presented by the
State, the circumstantial evidence statute does not apply in a
sufficiency analysis.” Brown v. State, 314 Ga. 193, 196 (1) (875 SE2d
784) (2022). And here the State did present direct evidence of
Troutman’s guilt, in particular the testimony of his uncle about
Troutman’s confession to him, as well as the recording of Troutman’s
confession to Ackey. See id. at 197 (1) (testimony of a witness that
the defendant had confessed to that witness is direct evidence of
guilt). Therefore, OCGA § 24-14-6 does not apply here.
2. Troutman next argues that the State committed
prosecutorial misconduct in several respects, particularly by
vacillating over when the murder occurred and by making improper
comments in closing argument. We conclude that these arguments
either were not preserved for our review or were resolved in
Troutman’s favor below, presenting nothing for our review.
(a) Troutman is imprecise as to when he claims the State acted
9
improperly regarding its theory of the timing of the crimes. On
appeal, Troutman claims that the State acted improperly “[b]y
indicting for a date range, claiming that the exact date was
unknown, when they were arguing at trial that the exact date and
almost the exact time had been known to them all along, then
switching back to the exact date unknown theory during the charge
conference.” But a claim of prosecutorial misconduct generally must
be raised at trial in order to be preserved for appellate review. See
Davis v. State, 316 Ga. 418, 424-425 (4) (b) (888 SE2d 546) (2023).
Troutman never raised at trial any objection framed as one of
“prosecutorial misconduct” as to any of these actions by the State.
And to the extent that he raised any sort of objection at all to these
actions at trial, he received a favorable outcome.
Regarding the indictment itself, each count of the indictment
— which charged Troutman with malice murder, felony murder, and
aggravated assault — included a date range, alleging that the crime
was committed “between the 24th day of January, 2014, and the
25th day of January, 2014, the exact date of the offense being
10
unknown to the Grand Jury[.]” “Generally, an indictment which fails
to allege a specific date on which the crime was committed is not
perfect in form and is subject to a timely special demurrer.” State v.
Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005) (citation and
punctuation omitted). The failure to raise such an issue in a timely
filed special demurrer prior to trial waives the issue for direct
appeal. See Miller v. State, 305 Ga. 276, 280-281 (3) (824 SE2d 342)
(2019). Although Troutman filed a general demurrer challenging the
felony murder statute as unconstitutionally vague, he filed no
special demurrer challenging the indictment for lack of precision in
its allegations as to when the crimes were committed. So no claim of
prosecutorial misconduct based on the allegations in the indictment
about the timing of the crime is preserved for review.
In complaining that the State “argu[ed] at trial that the exact
date and almost the exact time had been known to them all along,”
Troutman appears to be referencing a point in the trial when,
outside of the presence of the jury, the State suggested that certain
evidence that the defense planned to introduce fell outside of his
11
notice of alibi. During the exchange between the parties and the
court, the prosecutor appeared to suggest that the killing had
occurred on the afternoon of January 24, 2014, adding that
“[f]rankly, it has never been the State’s position that the murder
occurred overnight.” Defense counsel argued to the trial court that
this represented a change of the State’s theory but sought no remedy
for this alleged change of position other than inclusion of the alibi
evidence the State sought to exclude. The trial court ruled in
Troutman’s favor, allowing the defense to present the alibi evidence
at issue.
Troutman did object to the State’s request for a jury instruction
that “when the exact date of a crime is not a material allegation of
the indictment, the crime may be proved to have taken place on any
date prior to the return of the indictment.” At the charge conference,
the State contended that the charge was relevant because both the
medical examiner and the lead detective testified that they could not
determine the exact time of death. The defense objected on the
grounds that the State had “narrowed” the time of the offense to
12
“either before 4:30” or “between 4:30 and 6:00 p.m.” on January 24,
2014, and the defendant had put up an alibi defense. The trial court
agreed at the charge conference to give the charge, but that language
was not included in the final charge to the jury. Thus, as any
particular objection to the State’s handling of the issue of the timing
of the crimes was resolved in Troutman’s favor, this claim of
prosecutorial misconduct leaves us nothing to review.
(b) Troutman also argues that the State committed misconduct
by stating in closing argument that (1) Troutman’s mother, who
testified for the defense, had lied both to the police and to the jury
and had been charged with giving a false statement in connection
with the case; and (2) the trial could have been shorter if the defense
had not “called in all the witnesses who had absolutely nothing to do
with this case” and “were just distractions.” But Troutman did not
object to either of these comments at trial. Aside from the general
requirement that claims of prosecutorial misconduct be preserved,
this Court clearly has stated that “we do not review unpreserved
challenges to closing arguments in non-death penalty cases, even for
13
plain error.” McIver v. State, 314 Ga. 109, 152 (3) (g) (875 SE2d 810)
(2022) (citation and punctuation omitted). Therefore, these claims of
prosecutorial misconduct also leave us nothing to review.
3. Troutman also raises several claims of ineffective assistance
of counsel. We conclude as to each claim either that Troutman has
not shown that counsel performed in a constitutionally deficient
manner, or that he has not shown that any deficient performance
affected the outcome of the trial.
To prove his claim of ineffective assistance of counsel,
Troutman must show that counsel’s performance was deficient and
that counsel’s deficient performance prejudiced Troutman’s defense.
See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80
LE2d 674) (1984). “If [a defendant] fails to establish one of these two
prongs, we need not examine the other.” Payne v. State, 314 Ga. 322,
328 (3) (877 SE2d 202) (2022) (citation and punctuation omitted).
“To show deficient performance, the defendant must demonstrate
that counsel performed counsel’s duties in an objectively
unreasonable way, considering all of the circumstances and in the
14
light of prevailing professional norms.” Id. at 328-329 (3). “To
establish prejudice, [a defendant] must show that there is a
reasonable probability that, but for counsel’s unprofessional error,
the result of the proceeding would have been different.” Id. at 329
(3) (citation and punctuation omitted). “In reviewing a ruling on a
claim of ineffective assistance of counsel, we defer to the trial court’s
findings of fact unless they are clearly erroneous, but we apply the
law to the facts de novo.” Id. (citation and punctuation omitted).
(a) Troutman argues that counsel’s insistence that the jury
hear a part of the recordings of Ackey’s phone conversations with
Troutman in which Troutman described involvement in a gang and
a California murder constituted ineffective assistance in that it
introduced bad-character and extrinsic evidence. We conclude that
Troutman has not proven any deficient performance in this regard.
In the recorded phone conversations, Ackey encouraged
Troutman to swap secrets with her as a romantic bonding exercise,
claiming that she killed her best friend, then eliciting from
Troutman details of his killing Clemons. In addition to Troutman’s
15
confession to killing Clemons, the recording of Ackey’s conversation
with Troutman included Troutman saying that he was associated
with a gang, that he previously committed murder (including by use
of “guns, knives, [and] switchblades”), that he murdered a pregnant
woman in California as part of gang activity, and that in the course
of that murder he “slit her throat, cut her open and put the baby
inside a f**king Happy Meal box inside the mailbox.” Despite the
disturbing and incriminating nature of these references, defense
counsel objected to at least some of the State’s proposed redactions
of recordings of the conversations between Ackey and Troutman.
Defense counsel in particular sought inclusion of Troutman’s
statements about the California killing, suggesting that it was
relevant because it showed that both Ackey and Troutman were
using “exaggerations” and “lies” during their conversation. The trial
court ruled that the recordings should not be redacted to the extent
that the parties could not agree on redactions. In her closing
argument, defense counsel contended that because the California
story was obviously not true — as neither Troutman nor his mother
16
owned a car, Troutman did not have a driver’s license, and he had
never been to California — this showed that Troutman was merely
making up stories to impress Ackey.
Given the unusual facts of this case, we cannot say that it was
objectively unreasonable for counsel to seek admission of a more
complete version of the recordings, on which both Ackey and
Troutman made outlandish claims in an apparent attempt to cement
a relational bond. “Deliberate choices of trial strategy and tactics are
within the province of trial counsel after consultation with her
client.” Smith v. State, 300 Ga. 532, 536 (3) (a) (796 SE2d 671) (2017)
(citation and punctuation omitted). Although Troutman’s
description of a murder in California was disturbing, the State
essentially admitted in closing that it was a fabricated story. Given
that Troutman has made no argument on appeal that the confession
to killing Clemons heard on the recordings was itself inadmissible,
it was reasonable for counsel to have concluded that the best way to
counter the damaging nature of the statements about Clemons was
to have the jury hear a more complete version of the recordings, in
17
hopes that the jury would conclude that Troutman also had lied
when he told Ackey that he killed Clemons in an attempt to impress
or otherwise bond with her. See Ford v. State, 290 Ga. 45, 48 (5) (a)
(717 SE2d 464) (2011) (counsel did not perform deficiently in failing
to object to testimony allegedly attacking defendant’s character,
where defense counsel testified at motion for new trial hearing that
she did not object because it showed the witness’s bias against the
defendant). Troutman did not show deficient performance here.
(b) Troutman argues that trial counsel rendered ineffective
assistance by presenting a “fatally flawed” alibi defense, in that the
primary alibi witness presented by counsel, Troutman’s mother
Ramonia, could not supply an alibi for the date and time of the
murder. We conclude that even if counsel’s performance was
deficient in this regard, Troutman has not shown prejudice.
Ramonia testified that Troutman did not meet her at a
particular bus stop as usual when she arrived there on her way
home from work in the early evening of January 24, 2014, which fell
on a Friday. Defense counsel then asked Ramonia if she recalled
18
telling police that Troutman met her at the bus stop as usual. “They
got Friday confused with that Thursday[,]” she responded. Ramonia
testified that on January 24 Troutman arrived home about 15
minutes after she did, around 6:15 p.m. She testified that he acted
normally, although she could not say when he went to bed that
night, saying, “He was in his room, I was in mine.” Ramonia also
testified that she had never worked at a place with an incinerator
on site and that Troutman had never been outside of the state of
Georgia. Ramonia’s written statement to police, in which she
appeared to say that Troutman met her as usual on the afternoon of
January 24, was admitted by the State on cross-examination, during
which the State sought to elicit Ramonia’s admissions that she was
“locked up for lying to police officers” in conjunction with the case.
The defense presented additional evidence, as well, including school
records showing that Troutman was present in homeroom at his
high school on the morning of January 24.
“Decisions about which witnesses to call at trial are matters of
trial strategy and tactics, and such strategic and tactical decisions
19
do not amount to deficient performance unless they are so
unreasonable that no competent attorney would have made them
under similar circumstances.” Jackson v. State, 318 Ga. 393, 410 (4)
(c) (897 SE2d 785) (2024) (citation and punctuation omitted).
Troutman argues that Ramonia’s testimony shows that counsel did
not adequately investigate the evidence, because interviewing
Ramonia before trial would have made clear that she could not
provide an alibi for Troutman for January 24. But Ramonia did
provide some testimony helpful to Troutman, including that
Troutman acted normally when he arrived home on January 24, that
she had never worked in a place with an incinerator, and that he
had never left the state of Georgia (supporting the notion that his
statement to Ackey about a California murder was a fabrication).
Although Ramonia indicated that police were confused when they
took her statement to them to mean that Troutman met her at the
bus as usual on January 24, the State’s attacks on her credibility
may have minimized any weight of her testimony, such that at worst
her testimony was not helpful to either the State or Troutman. See
20
id. (“That [the witness] was impeached in some respects does not
render the decision to call him objectively unreasonable, especially
given that his impeachment may have benefited [the defendant]’s
defense by calling into question any unfavorable testimony that [the
witness] did happen to give.”). Thus, Troutman has not shown that
the decision to call Ramonia was itself deficient performance.
To the extent that Troutman is arguing counsel should have
presented a more robust alibi defense or a different defense
altogether, even if counsel performed deficiently in this regard,
Troutman cannot show prejudice. The only evidence admitted at the
motion for new trial hearing was the testimony of trial counsel, who
testified that Troutman had given him only the names of “Princess
and somebody else” as alibi witnesses, without any contact
information. Troutman neither called other alibi witnesses at the
motion for new trial hearing nor presented a legally acceptable
substitute for their direct testimony that would have substantiated
any claim that other witnesses’ testimony would have been relevant
and favorable to his defense, nor did he introduce any other alibi
21
evidence at the hearing. Additionally, Troutman has not offered an
alternative strategy to the alibi defense that counsel should have
pursued. Therefore, Troutman failed to show that there is a
reasonable probability that the result of his trial would have been
different had counsel introduced other alibi evidence or pursued a
different strategy. See Babbage v. State, 296 Ga. 364, 369-370 (5) (a)
(768 SE2d 461) (2015); Green v. State, 291 Ga. 287, 297-298 (10) (d)
(728 SE2d 668) (2012).
(c) Troutman argues that counsel rendered ineffective
assistance by failing to object and move for a mistrial when the State
in closing referred to graphic photographic evidence that the trial
court had excluded. We disagree.
Although the trial court admitted certain photographs of
Clemons’s body, it excluded a handful of them. In closing argument
the State referenced the mutilation of Clemons’s penis and
photographs that the trial court had ruled inadmissible, saying,
“[t]he photographs were so, so disturbing that the trial court won’t
even let us put them in and show you” and that “the photographs
22
were found too graphic, too gory to show you.”
“Reasonable decisions as to whether to raise a specific objection
are ordinarily matters of trial strategy and provide no ground for
reversal.” Lofton v. State, 309 Ga. 349, 360 (6) (846 SE2d 57) (2020)
(citation and punctuation omitted). And where an objection to
closing argument may highlight a point made by the prosecutor,
failure to object may constitute a reasonable strategic decision. See
id. at 365 (6) (b) (iii); Westmoreland v. State, 287 Ga. 688, 695-696
(9) (a) (699 SE2d 13) (2010). Here, counsel stated in the motion for
new trial hearing that the decision not to object was a “strategic
decision.” Counsel’s decision not to object was not patently
unreasonable. The substance of the unadmitted photos of Clemons’s
body that the prosecutor referenced in closing had been made
available to the jury via the introduction of the medical examiner’s
testimony. The jury already had heard evidence that Clemons had
received gruesome injuries to his genital area through the testimony
of the medical examiner, who at one point described a photo of the
injuries to Clemons’s penis, confirming that the photo was “too
23
graphic to show the jury[.]” Therefore, counsel had little to gain by
objecting and asking the trial court to instruct the jury to disregard
the prosecutor’s reference to the excluded photographs, which would
serve only to highlight the severity of Clemons’s injuries.
Troutman argues that trial counsel should have sought a
mistrial based on the prosecutor’s remark. It is true that a trial court
has broad discretion to grant a mistrial where in the hearing of the
jury a prosecutor makes statements of prejudicial matters that are
not in evidence. See State v. Jackson, 306 Ga. 626, 629 (1) (831 SE2d
798) (2019) (citing OCGA § 17-8-75). But “[t]he question of whether
a remedy for an improper comment during closing argument is
sufficient depends on the degree of prejudice created by the
comment.” Id. at 629 (1). “And assessing that degree of prejudice
involves consideration of the weight of the evidence.” Id. Here, the
degree of prejudice created by the comment was quite low, because
the prosecutor merely orally referenced photographs showing
injuries that the medical examiner already had described to the jury.
And the evidence of Troutman’s guilt —including evidence that the
24
defendant threatened the victim before the killing and confessed to
two other people after the stabbing — was strong. Because the trial
court would have acted within its discretion in denying a motion for
mistrial, the failure of Troutman’s counsel to make a motion for
mistrial does not establish deficient performance. See Hill v. State,
310 Ga. 180, 189-190 (6) (850 SE2d 110) (2020).
(d) Troutman argues that trial counsel rendered ineffective
assistance by failing to object and move for a mistrial when the State
in closing argument mischaracterized its burden of proof. We agree
that counsel performed deficiently by not objecting but conclude that
Troutman did not show that his case was prejudiced by this failure.
In her discussion of reasonable doubt, the prosecutor told the
jury, among other things:
Reasonable doubt is not to a mathematical certainty. A
reasonable doubt doesn’t mean that we have to prove the
case to 50 percent. It doesn’t mean that that we have to
prove our charges to 98 or 100 percent. It doesn’t mean
that we have to present a certain number of exhibits. It
doesn’t mean that we provide more evidence than the
defense. Reasonable doubt is also not beyond all doubt.
A prosecutor’s closing argument that mischaracterizes the burden of
25
proof by suggesting “that proof beyond a reasonable doubt requires
something less than proof that leaves a jury with 51 percent
certainty is obviously wrong[.]” Debelbot v. State, 308 Ga. 165, 167
(839 SE2d 513) (2020) (citation and punctuation omitted). The
prosecutor’s statement to the jury that “reasonable doubt doesn’t
mean that we have to prove the case to 50 percent” — i.e., less than
the far lower standard of preponderance — thus was plainly
improper. And “[w]e cannot conceive of any good reason that a
competent criminal defense attorney could have to fail to object to
such an egregious misstatement of the law.” Debelbot v. State, 305
Ga. 534, 544 (2) (826 SE2d 129) (2019).
But Troutman has not shown prejudice from this deficient
performance. “[A] defendant asserting an ineffective-assistance
claim like the one here must show how a prosecutor’s particular
mischaracterization of reasonable doubt likely affected how a jury
weighed the evidence of his guilt under the circumstances of his case
(and in doing so, show how objecting to the comments would have
created a reasonable probability of a different outcome).” Scott v.
26
State, 317 Ga. 218, 226 (2) (c) (892 SE2d 744) (2023). Here, as noted
above, the evidence was strong, not “underwhelming” as in Debelbot.
308 Ga. at 168. And this case does not present the particular factual
scenario in Debelbot where two defendants had essentially equal
opportunities, and no one else had any opportunity at all, to inflict
the fatal injuries, making a reference to being less than 51 percent
sure about the defendants’ guilt uniquely harmful. See id. Here, the
trial court did instruct the jury that the State was “not required to
prove the guilt of the accused . . . to a mathematical certainty,”
which, as in Debelbot, may have reinforced the prosecutor’s incorrect
argument. 305 Ga. at 543-544 (2). But it also correctly instructed the
jury at length on burden of proof, presumption of innocence, and
reasonable doubt, and also told the jury that the closing arguments
were not evidence. Therefore, Troutman has not shown how counsel
objecting to the prosecutor’s comments would have created a
reasonable probability of a different outcome. See Scott, 317 Ga. at
224-226 (2) (c) (defense did not establish prejudice from counsel’s
failure to object to prosecutor’s “inadvisable” characterization of
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reasonable doubt, where the evidence of the defendant’s guilt was
strong, the prosecutor told the jury that her arguments were not
legal instructions, and the trial court instructed the jury accurately
and at length on the burden of proof, presumption of innocence, and
reasonable doubt); Warren v. State, 314 Ga. 598, 602-603 (2) (a) (878
SE2d 438) (2022) (defense not prejudiced by counsel’s failure to
object to prosecutor’s remark that burden of proof did not mean “to
a mathematical certainty, it’s not 95 percent, 85 percent,” where the
evidence was strong and the appellant did not point to anything like
the circumstances in Debelbot that made the prosecutor’s more
egregious remark uniquely harmful there); Draughn v. State, 311
Ga. 378, 382-384 (2) (858 SE2d 8) (2021) (defense not prejudiced by
counsel’s failure to object to counsel’s remark that reasonable doubt
was “not 90 percent or 95 percent” where evidence of guilt was
“plainly sufficient” and any error in State’s remark was cured by
trial court’s instructions to the jury). And given that conclusion that
the degree of prejudice suffered by the defense was low here, the
trial court would have acted within its discretion in denying a
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mistrial based on the State’s characterization of its burden of proof
had defense counsel requested one. See Jackson, 306 Ga. at 629 (1).
Therefore, Troutman has not proven ineffective assistance of
counsel on this basis.
(e) Finally, Troutman argues that counsel rendered ineffective
assistance by insisting on a voluntary manslaughter instruction
when the primary defense had been alibi. We conclude that
Troutman has not shown counsel performed deficiently by
requesting such an instruction.
The trial court did charge the jury on alibi, justification,
voluntary manslaughter, and mutual combat at Troutman’s request,
with counsel explaining that the request for a voluntary
manslaughter instruction was based on the recorded conversation
between Ackey and Troutman, as well as the medical examiner’s
testimony referring to an “altercation” between Clemons and his
assailant. In arguing on appeal that counsel performed deficiently
by requesting a voluntary manslaughter instruction, Troutman
states that the defense had not presented evidence to support a
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voluntary manslaughter verdict and suggests that an instruction on
voluntary manslaughter undermined the alibi defense. But
Troutman also describes the alibi defense as “non-viable.”
“Whether the potential upside of a charge is worth its costs is
a quintessential question of trial strategy.” State v. Mobley, 296 Ga.
876, 881 (770 SE2d 1) (2015). “Moreover, a strategy that presents
alternative defense theories — all of which are better for the
defendant than the prosecution theory of the case — generally falls
within the broad range of reasonable professional conduct.” Id.
“More specifically, it ordinarily is not unreasonable for a defense
lawyer to seek a charge on voluntary manslaughter as an alternative
defense theory in a murder case, in the event that the jury does not
accept the primary defense theory[,]” even where it might impair to
some extent the principal defense. Id. And although Troutman
suggests that counsel at least should have “withdraw[n] the nonviable alibi defense” if counsel elected to pursue a voluntary
manslaughter theory, such a complete change of course during the
trial may have further undermined counsel’s credibility in the eyes
30
of the jury. Thus, it cannot be said that no reasonable lawyer would
have asked for the voluntary manslaughter charge, even though
providing the jury the option to convict on voluntary manslaughter
might have impaired to some extent the alibi defense. Troutman has
failed to carry his burden to show deficient performance.
(g) Troutman also has argued that the alleged errors of counsel
caused him prejudice when considered collectively. See Schofield v.
Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56) (2007), overruled on
other grounds by State v. Lane, 308 Ga. 10, 17 (1) (838 SE2d 808)
(2020). Even considering the effect of counsel’s failure to object to
the prosecutor’s remarks on reasonable doubt combined with the
effect of any deficient performance in counsel’s failure to raise a
different or more robust theory of defense, we conclude that
Troutman has not shown prejudice sufficient to order a new trial.
The evidence of Troutman’s guilt was strong. Moreover, we have
concluded that Troutman has shown no prejudice from counsel’s
failure to present a different or more robust defense, given that
Troutman introduced no evidence in that respect at the motion for
31
new trial hearing and has not proposed an alternative defense
strategy. Troutman thus has failed to establish that the combined
prejudicial effect of any deficient performance by counsel requires a
new trial. See Jackson, 318 Ga. at 405-406 (1) (h) (cumulative
prejudice claim failed in the light of the strength of the evidence
against the defendant); Allen v. State, 317 Ga. 1, 13 (4) (f) (890 SE2d
700) (2023) (cumulative prejudice claim failed where the appellant
did not show prejudice from any of the assumed deficiencies of
counsel).
Judgment affirmed. All the Justices concur.
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