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: February 18, 2025
S24A0994. SMITH v. THE STATE.
LAGRUA, Justice.
A jury convicted Nemiyas Smith of murder, aggravated
assault, and related charges for shooting Kornelius Favors and
Constance McCier, who was wounded.1 Smith claimed self-defense
1 The shooting occurred on March 22, 2019. On June 25, 2019, a Fulton
County grand jury indicted Smith on the following counts: malice murder of
Favors (Count 1); felony murder predicated on the aggravated assault of
Favors (Count 2); felony murder predicated on Smith’s possession of a firearm
as a convicted felon (Count 3); aggravated assault of Favors (Count 4);
aggravated assault of McCier (Count 5); aggravated battery of McCier (Count
6); possession of a firearm during commission of a felony, predicated on the
charges of murder, felony murder, aggravated assault with a deadly weapon,
and aggravated battery (Count 7); and possession of a firearm by a convicted
felon (Count 8). Smith was tried in November 2021, and the jury convicted him
on all counts. The trial court sentenced him to life in prison on Count 1 (malice
murder); 20 years to serve on Count 6 (aggravated battery of McCier),
consecutive to Count 1; five years to serve on Count 7 (possession of a firearm
during commission of a felony), consecutive to Count 6; 10 years to serve on
Count 8 (possession of a firearm by a convicted felon), concurrent with Count
1, for a total of life in prison plus 25 years. The remaining counts merged or
were vacated by operation of law. Smith timely filed a motion for new trial
through trial counsel, who simultaneously moved to withdraw. New counsel
at trial. On appeal, Smith argues ineffective assistance of counsel on
the grounds that Smith’s trial counsel did not: (1) present an expert
witness to establish that two different guns fired the two bullets
which killed Favors; (2) object to the State’s improper closing
argument regarding felony murder and felon in possession of a
firearm; and (3) object to allegedly false evidence and argument that
Smith’s brother, Neddrick, was a defendant in another murder case.
Smith also contends that the State’s presentation of such
purportedly false evidence and argument about Neddrick is
reversible error independent of the ineffective assistance of Smith’s
trial counsel. For the reasons that follow, we affirm.
The evidence presented at trial showed that, on the day of the
shooting, McCier and Favors, who was McCier’s boyfriend and the
father of her child, went to “Rico[’s] house”2 to buy marijuana.
filed an amended motion for new trial, which the trial court heard over two
days, June 13, 2023, and June 26, 2023. The trial court denied Smith’s motion
for new trial on October 17, 2023. Smith filed a timely notice of appeal to this
Court on October 30, 2023, and his case was docketed to this Court’s August
2024 term and submitted for a decision on the briefs.
2 According to the record, Rico was the “street name” for a local drug
dealer who sold drugs out of this location, which may have been a “rooming
house.” The record does not reflect Rico’s legal name.
2
McCier testified that she and Favors encountered Smith walking
down the sidewalk in front of the house. McCier met Smith in the
street while Favors and Rico stood in Rico’s driveway. McCier asked
Smith about a dispute that Smith and her brother Camerion were
having. McCier testified that she and Smith engaged in a “peaceful
conversation,” where “basically [Smith] just told [McCier] about
what happened.”
McCier and Smith spoke for “about a minute or two” before
Favors “walked up and immediately started talking.” Favors also
asked Smith about “the issue between [Smith] and Camerion,” but,
McCier testified, Favors “kind of” had an attitude. McCier said that
she did not mean that Favors “came at [Smith] wrong,” but that
Favors “was just loud about the situation.” McCier testified that
Smith and Favors started “going back and forth,” cursing at each
other “a little bit,” and that “both of them w[ere] hostile.” McCier
told Favors to “chill,” because he “grabbed” at his fanny pack, which
she knew contained a gun. McCier said she “didn’t know [Favors’s]
intention,” so she tried to “diffuse [sic] the situation by calming
3
[Favors] down at the moment.” McCier testified that Favors never
took anything out of his fanny pack and that Favors calmed down at
her request. According to McCier, Favors said to Smith, “my bad,
bruh,” and Smith replied, “all right, suh”—“suh” referring to McCier
as “sister”—and then Smith “just walked away.” McCier said she
and Favors then “walked back into the driveway with Rico,” where
they talked for a “few minutes,” and Favors purchased marijuana
from Rico.
McCier testified that Smith came back within “maybe three
minutes at the most,” with his brother Neddrick walking behind
him. At that point, Favors had finished the marijuana purchase and
turned to leave as McCier continued talking to Rico. McCier said
that Favors got “a couple of steps” away from her and then
“screamed” her name. McCier said that she “began to run to” Favors,
thinking Favors “was calling [her] because [Favors] was ready to go.”
She did not know whether Rico was walking with them or stayed
where he was; she “only remember[ed Favors] calling [her] name
and then shots were fired.”
4
McCier testified that when Favors called her name, Smith was
on the sidewalk near McCier, Favors, and Rico; Favors and Smith
were walking “towards each other”; and McCier “instant[ly]” heard
gunshots. McCier testified that she saw Smith’s “hand out,” but she
did not see the gun in Smith’s hand. McCier further testified that
she did not “know who shot [her],” but she knew “that bullets w[ere]
coming from [Smith’s] direction.” On redirect-examination, McCier
said that she saw a gun in Smith’s hand but she “didn’t see the type
of gun,” and she heard “at least five” shots.
McCier said that she was shot in the arm as she and Favors
ran away, and that, as she ran down the street, Smith ran past her
and got into the car of “a friend of his[.]” McCier said that she
realized that Favors had been shot “when [Favors] screamed [her]
name again,” and she saw Favors lying on the ground. McCier
testified that Smith’s brother, Neddrick, was “right there when
[Smith] shot [her],” but she did not see Neddrick holding a firearm.
McCier said that Favors never drew his gun or fired any shots, and
she denied ever seeing Rico with a gun.
5
When City of Atlanta police officers arrived at the scene, they
encountered McCier with an apparent gunshot wound to her upper
left arm. They found Favors lying “face down on the ground,” with
an apparent gunshot wound to his back. The officers secured the
scene, and EMS transported McCier and Favors to Grady Hospital,
where Favors died two days later. City of Atlanta Police Detective
Tracy Casey went to Grady Hospital to interview Favors and
McCier. Detective Casey testified that she could not take a
statement from Favors because he was not “verbal . . . conscious or
alert.” Detective Casey testified that McCier told her the following:
McCier and Favors were “walking to purchase some
marijuana” when they “ran into [Smith].” McCier said that she “was
asking [Smith] why he was messing with her brother,” but McCier
said that the conversation “wasn’t a confrontation. They weren’t
arguing or anything like that.” McCier said that Favors “interjected
himself into . . . the conversation and basically said that . . . ‘that’s
my family and you’re not going to mess with my family,’ or
something to that extent.”
6
McCier told Detective Casey that “within five minutes,” as
McCier and Favors were “making a transaction” with Rico, “they
s[aw] [Smith] coming around the corner . . . . [Smith] just raised the
gun and he just start[ed] firing at the crowd.” McCier stated that
Smith “brought his brother Ned[drick] with him.” McCier said that
she was shot, and that they were “all running away, including Rico.”
Detective Casey testified that she also interviewed Trevor
Kane, who owned a film studio located near the scene and whose
surveillance camera recorded the only known video footage of the
incident. Kane told her that he heard “about four” shots that day.3
Detective Casey testified that she obtained Rico’s phone
number from McCier and called him. Rico confirmed that he was at
the scene, but otherwise “wasn’t cooperative.” Detective Casey
testified that Rico “basically referred [Detective Casey] back to . . .
[the] video [and] to talking to [McCier] and [to Smith].” Detective
3 Kane testified at trial that he was in his studio and heard the gunshots,
but that he did not see the shooting. He testified that he heard four shots and
went outside but only surveyed the scene “from a distance.” He could not recall
if police had already arrived but remembered that “a lot of the neighborhood
was outside.”
7
Casey never learned Rico’s real name and was never able to locate
him. McCier told Detective Casey that Rico was not one of the
shooters, and Detective Casey never considered Rico a suspect.
Mark Tanner, testifying as the State’s firearms expert,
identified the two bullets recovered during Favors’s autopsy. Tanner
labeled the bullets 2A and 2B respectively in his report, and those
labels were used to refer to the bullets throughout trial. Tanner
testified that bullet 2A was a “specific caliber” of 9mm, but Tanner
“classified” bullet 2B “as a .38 because [he couldn’t] designate a
specific caliber.”4 Tanner testified that because item 2B was a .38
“class” bullet, it could also be a 9mm caliber bullet.
4 Tanner testified at the hearing on Smith’s motion for new trial that he
listed 2B as a .38 “bullet,” meaning .38 class, because he was unsure of the
caliber, and
the GBI, per policy, if we cannot determine what’s called the
specific caliber, we must provide the generic caliber for the class of
that projectile . . . . whenever I provide .38 bullets, that indicates,
per GBI policy, that I am unsure of the specific caliber, so therefore
I am giving the class caliber. So, in short, I don’t – I don’t know if
2B is a 9mm or a .38 special or a .357 magnum. That’s why I gave
the .38 bullet.
8
Defense counsel pointed out on cross-examination that
Tanner’s report appeared to indicate that bullets 2A and 2B came
from two different weapons. Specifically, the report stated that
bullet 2A “is consistent [with] being fired from 9mm-type weapons,”
while bullet 2B “is consistent with being fired from a Rossi and a
Taurus .38 special and a .357 magnum revolver.” When defense
counsel asked Tanner whether that meant that the bullets were “two
different types of bullets,” Tanner responded that
[i]t’s possible. Okay? So the 2B I have classified as a .38
bullet, which is a class of projectiles. So .38 class ranges
from .38 special, .357 magnum, 9mm, [.]380 auto. It’s the
general class of a bullet. Now, on 2A I have it listed as a
9mm. This is a specific caliber or a specific class of bullet,
so I was able to narrow it down to a 9mm. Now, I give here
two separate lists showing that one of them is consistent
with being fired from revolvers and derringers and the
other one is consistent with being fired from pistols.
Because when I look at them, that’s what I see at first
glance and looking at the evidence itself individually . . . .
So the last statement in both of these [lists] states that
it’s not – these lists are not intended to be an all-inclusive
list. So could any of these other firearms be on either list,
that is possible. But based on what I saw, this is the best
list that I could provide.
9
The trial court permitted the jury to submit questions to the
court to ask witnesses throughout the proceedings. The trial judge
asked Tanner on behalf of the jury, after a sidebar with the
attorneys, “in your expert opinion could 2B bullet [sic] have been
possibl[y] fired from a 9mm pistol?” Tanner responded, “[i]t is
possible, yes.” The trial judge next asked for the jury, “[c]an a hollow
point, described as a .38, be loaded with the 9mm full metal jacket
in the same gun? Could both .38 and 9mm’s be loaded in the same
gun and fired by the same gun?” Tanner responded, “[y]es, they can,
as long as they share the same cartridge case style. Kind of going
back to the first question as well here, they would have to be the
same cartridge case style for it to fit in the same firearm.”
Nevertheless, Tanner stated that the two bullets displayed an
“insufficient amount [sic] of characteristics” to determine “whether
they were fired from the same gun or not.”
When defense counsel asked Tanner on recross-examination if
firing two different bullets from the same gun could cause “some
problems in the firing mechanism,” Tanner responded that
10
[i]t depends on how they are loaded into the gun. So if the
bullet that I have classified as a .38, if it is, in fact, a 9mm,
which I wasn’t able to determine, possibility [sic] if it is a
9mm and it was loaded into the same gun as the other
9mm’s, there wouldn’t be any types of munition
malfunctioning or anything. However, if it were to, say,
be loaded in a [.]380, there is potential. Because while
[.]380s can be fired in a 9[mm], it’s not the same caliber
as the gun, so there is potential for issues. But it depends
on how it’s loaded.
Smith testified in his own defense at trial. He said that, on the
day of the shooting, he decided to walk to the store to buy cigarettes.
Smith said that moments after he left the store, he encountered
McCier and Favors. Smith testified that McCier called out to Smith,
then met Smith in the street, at which point McCier asked Smith
“what’s goin[g] on with you and Camerion?” Smith testified that he
explained to McCier that Camerion had pulled a gun on Smith.
Smith said that, as he was explaining the situation to McCier,
Favors asked Smith “what[’s] the pressure about, bruh?” Smith said
that when he responded to Favors, “what [are] you talkin[g] about?”
Favors replied “s**t, bruh, you f**k with my family . . . I kill
somebody.” Smith testified that Favors then pulled a gun “halfway
11
out” of his fanny pack. Smith said that, “in the midst of it,” McCier
“turn[ed] around . . . [and] put her hand over [Favors’s] mouth.”
Smith said that McCier told Favors that “Camerion [was the one in
the] wrong.” Smith testified that Smith then “turned around and
walked off.” Smith said that Favors called out, “[d]on’t let this
happen no more.” Smith said that he kept walking because he did
not want to “get [himself] shot right there.”
Smith testified that, as he walked away, he realized that he
had forgotten his cigarettes at the store. Smith said that on his way
back to the store, he saw McCier, Favors, and Rico standing together
in Rico’s driveway, and Favors “got the gun in the hand now.” Smith
testified that McCier “whispered” something to Favors and then
called Smith over to them. Smith said that he went over to them,
despite Favors openly holding a gun, because Smith wasn’t
“thinking.” Smith also said he did not see the gun until he was too
close to turn around and run without “get[ting himself] shot in the
back.” According to Smith, when he got “close to them, a shot [went]
off.” Smith testified that the three “rush[ed]” him, and Favors
12
“jump[ed] towards” him. Smith said that when he heard the shot, he
“jumped,” “reached,” and shot in return “boom -- boom.” Smith said
he fired “not really trying to hurt nobody, just shoot, shoot.”
Smith said there were four shots fired that day, the first one he
only heard, the other three he fired. When asked who fired the first
shot, Smith responded, “[t]o be honest, I don’t know,” but he
reiterated that it came from the three others standing in a group,
and he saw Favors holding a gun.
Smith denied ever seeing his brother Neddrick at the scene.
Smith insisted that he came by himself and that he “was alone” “the
entire time.” When asked if the man standing behind him in the
video was Neddrick, Smith replied, “I don’t know.”
Smith admitted that he shot Favors in the back so Smith could
“get out [of] the driveway.” When the State asked Smith, “you
understand that you killed [Favors] by shooting him in the back
when his back was turned,” Smith responded, “Okay. That’s the only
– that’s the only thing that matter[s]?” Smith later testified that
Favors aimed a gun at him “even while [Favors] was running with
13
his back to [Smith]” and that Favors was “still a threat” at that
point.
During closing argument, defense counsel maintained that
Rico fired a .38 caliber revolver first, and that Smith returned fire
in self-defense. Defense counsel reiterated that all the witnesses
testified to hearing at least four shots, and that Favors exhibited
three wounds and McCier one. Defense counsel argued that police
officers only recovered three shell casings, all 9mm’s fired from
Smith’s gun. Based on these facts, defense counsel argued that the
fourth shot was the one to Favors’s abdomen, which Rico must have
fired from a .38 caliber revolver, and that the fact that it came from
a revolver explained why police found no shell casing for it.
To support this theory, defense counsel cited to Tanner’s report
that bullet 2B was “consistent with being fired from a Rossi and
Taurus .38 special . . . and . . . [a] .357 Magnum revolver.” Defense
counsel argued that the reference to “revolver tells you there is no
shell casing. The only shell casing[s] they see [are] his. They don’t
see the other shell casing because it was fired from a revolver.”
14
Defense counsel argued that the State “want[s] you to think that .38
came from a 9mm. It did not. The .38 came from a .38.”
Defense counsel further argued that “the only person
unaccounted for is Rico,” which “would account for four [shots].”
Defense counsel argued that “it’s not likely” that Smith shot Favors
in the stomach because Favors’s “back was turned when he was
firing.” Defense counsel pointed to the video of Rico at the scene,
arguing that it showed him with a raised arm and then putting
something in his pocket and “calmly walking away.” Defense counsel
argued that police never searched Rico’s house because the State
“wants you to forget about” Rico.
During the State’s closing argument, the prosecutor referenced
Tanner’s opinion that bullets 2A and 2B “could not be identified or
eliminated as having been fired from the same firearm due to lack
of sufficient individual characteristics,” explaining that that meant
“[i]nconclusive. Don’t know.” From there the State contended that
[w]hat you do need to know is that the .38 is a class.
[Tanner] went on and on about a class . . . . A .38 is a class
of gun. And in that class falls a .38 caliber, a [.]380 and a
15
9mm caliber . . . . So it’s a class and the 9mm falls under
that class.
Finally, the State argued during its closing argument that
Detective Casey heard about Neddrick from “a fellow detective [who]
was investigating Ned[drick] because Ned[drick] had his own open
murder charge.” The State further argued that Detective Casey did
not reach out to Neddrick because he was Smith’s brother, and
what is Ned[d]rick really going to tell her? You[’re] right,
my brother did it; He shot him in cold blood. No, he’s not
going to tell them that. And based on that, what she
already knows about Ned[d]rick and what she knows
about the family. Ned[d]rick has his own open murder.
He’s not going to admit to anything, not going to tell them
anything. And she also said that the Smith family was
known to be difficult. She just left that one alone.
Defense counsel objected, saying that the State’s argument was
“improper character evidence through Ned[d]rick, talking about
murders. He’s not – Ned[d]rick is not on trial here.” The trial court
overruled the objection because “that is what Detective Casey
testified to.”
1. Smith claims that his trial counsel was constitutionally
ineffective for failing to: (a) retain a firearms expert to establish that
16
two different guns fired the two different bullets found in Favors; (b)
object to the State’s closing argument about felony murder, and;
object to (c) purportedly false testimony and (d) purportedly false
closing argument that Neddrick was a defendant in another
homicide case, when he was only a witness. There is no merit to
these contentions.
To prevail on a claim of ineffective assistance of counsel, Smith
must establish that his attorney’s performance was deficient and
that deficient performance unduly prejudiced Smith’s defense. See
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984). “Because judicial scrutiny of counsel’s performance is
highly deferential, there is a strong presumption that a lawyer
rendered reasonable professional assistance.” Espinosa v. State, 320
Ga. 98, 102-103 (2) (907 SE2d 691) (2024) (citation omitted). Such
presumption “is extremely difficult to overcome” where trial counsel
fails to testify regarding his representation. Patterson v. State, 314
Ga. 167, 177 (2) (f) (875 SE2d 771) (2022) (citation omitted). As for
prejudice, Smith must show that “there is a reasonable probability
17
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. If Smith fails to satisfy either prong of
Strickland, this Court need not examine the other prong. See Jessie
v. State, 294 Ga. 375, 377 (2) (754 SE2d 46) (2014) (citation and
quotes omitted).
(a) “Typically, the decision whether to present an expert
witness is a matter of trial strategy that, if reasonable, will not
sustain a claim of ineffective assistance.” Matthews v. State, 301 Ga.
286, 289 (2) (800 SE2d 533) (2017) (citation omitted). Moreover,
Smith’s trial counsel did not testify at the hearing on Smith’s motion
for new trial, making the “strong presumption” that counsel
reasonably chose not to present an expert “extremely difficult to
overcome.” Patterson, 314 Ga. at 174; 177 (citation omitted).
Tanner was equivocal in his opinion at trial, stating that the
two bullets could have come from one gun or two, and could have
been the same specific caliber or two different calibers. Smith’s
18
counsel examined Tanner at some length and, during closing
argument, specifically cited Tanner’s equivocal opinion and
strategically used it to Smith’s advantage. Even the State argued
that Tanner’s report was “[i]nconclusive,” which meant the parties
“[d]on’t know” what 2B’s caliber was.
Given all of this, we cannot say that Smith has overcome the
strong presumption that his trial counsel reasonably chose not to
present an expert, and to instead cross-examine the State’s expert
and use that testimony to Smith’s advantage, which means that
Smith has not shown that his trial counsel was deficient. See
Matthews, 301 Ga. at 289 (2) (holding that counsel’s decision not to
call a counter-expert was not deficient in part because counsel
reasonably decided to “use cross-examination and argument to
advance” her trial theory); Stripling v. State, 304 Ga. 131, 139 (3) (b)
(816 SE2d 663) (2018) (holding that counsel was not deficient for
failing to call an expert at trial in part because other evidence
admitted at trial “was consistent with” the expert testimony the
appellant could have presented); Middlebrooks v. State, 310 Ga. 748,
19
752 (854 SE2d 503) (2021) (holding that trial counsel was not
deficient for failing to call an expert on gang activity in part because
“competent trial counsel” could impeach the gang evidence in other
ways, “including by cross-examining the State’s witnesses who
testified about gang activity and by” making appropriate argument
to the jury). As such, this claim fails.
(b) Smith claims that his trial counsel was ineffective for failing
to object to the State’s closing argument that Smith was guilty of
felony murder based on his possession of a firearm as a convicted
felon.5 Smith only raises this claim with respect to his felony murder
count.
5 The State told the jury:
Possession of firearm by a convicted felon. This is an easy one. If
you find that the defendant committed the homicide at the time
they were engaged in the commission of a felony, a possession of
firearm by a convicted felon, then you would be authorized to find
the defendant guilty of murder, whether the homicide was
intended or not. We know he was a convicted felon. He told you he
was a convicted felon. He was not supposed to possess a firearm
and while he was possessing a firearm, someone died. Felony
murder.
20
However, Smith’s conviction for malice murder resulted in
Smith’s felony murder conviction being vacated by operation of law.
See Macolm v. State, 263 Ga. 369, 374 (5) (434 SE2d 479) (1993)
(“When valid guilty verdicts are returned on both alternative counts
of malice and felony murder, the alternative felony murder count is
vacated by operation of O.C.G.A. § 16-1-7.”). Thus, Smith’s claim of
ineffective assistance of counsel pertaining to the State’s closing
argument about felony murder is moot. See Darville v. State, 289
Ga. 698, 702 (4) (b) (715 SE2d 110) (2011) (holding that the
appellant’s contention that counsel was ineffective by failing to
object to the omission of a particular jury instruction on felony
murder “was moot because [the appellant] was found guilty of malice
murder and no conviction was entered on the felony murder
charge”); Anthony v. State, 311 Ga. 293, 299 fn3 (5) (857 SE2d 682)
(2021) (holding that because no convictions were entered on the
appellant’s felony murder charges, “his ineffective assistance claims
are moot to the extent they pertain to the portions of trial counsel's
closing argument that reference felony murder”) (citation omitted);
21
Sims v. State, 312 Ga. 322, 330 (3) (862 SE2d 534) (2021) (holding
that because no conviction was entered on the appellant’s
aggravated assault charge, “his ineffective assistance claim is moot
to the extent that trial counsel’s alleged ineffectiveness relates to
that crime”) (citation omitted); Williams v. State, 313 Ga. 325, 331-332 (4) (869 SE2d 369) (2022) (holding that a conviction of malice
murder mooted any error in jury instructions regarding related
felony murder and aggravated assault charges).
Therefore, this claim of error fails.
(c) Smith contends that trial counsel was ineffective for failing
to object when Detective Casey testified that she never interviewed
Neddrick about Favors’s shooting because Neddrick was a defendant
in another homicide case. Smith argues that Detective Casey’s
testimony was false because Neddrick was not a defendant, but only
a witness in the other matter. We conclude that this contention fails.
In support of his argument, Smith points to two companion
cases related to the shooting death of one victim. See Stripling, 304
Ga. at 132-134 (1) (a); Smith v. State, 306 Ga. 753, 757 (1) (a) (833
22
SE2d 117) (2019). Four Smith brothers, Neddrick, Nemiyas
(appellant here), Talib, and Nierris, were in the vicinity of the
shooting. A witness initially identified Neddrick as the shooter,
whereupon police arrested and questioned Neddrick, but Neddrick
was apparently never charged for the crime. The jury convicted
Talib Smith and two other people for the murder.
The extent of Detective Casey’s testimony about Neddrick on
direct-examination was that, during her investigation, she discussed
Smith’s case with fellow City of Atlanta Police Detective Kevin
Leonpacher. Detective Casey testified that Detective Leonpacher
recognized Smith’s name and “start[ed] researching names, and he
pull[ed] up a case that he had prior to [Smith’s] with [Smith’s]
brother Neddrick.” Detective Leonpacher gave Detective Casey
Smith’s date of birth, which Detective Casey used to access Smith’s
driver’s license in order to confirm Smith’s identity. Defense counsel
subsequently cross-examined Detective Casey about her
understanding of Neddrick’s status as a witness to Favors’s shooting
without discussion of her choice not to interview Neddrick.
23
Detective Casey first testified about why she chose not to
interview Neddrick when, after a sidebar with the attorneys, the
trial court asked Detective Casey, on the jury’s behalf, “[d]id you or
other investigators get a statement from Ned? Ned[d]rick?”
Detective Casey responded “no.” Detective Casey said nothing
further about the issue until later, when asked about it on redirectexamination. Detective Casey testified that she did not attempt to
talk to Neddrick because “Ned[d]rick had already been involved in
quite a few different things.” At that point defense counsel objected,
but then, significant to our analysis, withdrew the objection.
Detective Casey continued testifying that she did not investigate
Neddrick
due to the fact of, number one, like I testified before that
investigator Leonpacher [had] a previous case with
Ned[d]rick and he has also been a defendant in another
homicide case, I didn’t feel that it was going to be fruitful
for me to have a conversation with Ned[d]rick. Because,
again, this is [Smith’s] brother, and I don’t think that it
would have been a – I don’t think that it would have been
a truthful conversation based upon the history of what I
know of Ned[d]rick and the rest of the family. Also,
because the mother was doing things as well[,] trying to
involve herself in this investigation as well. So I didn’t
24
think that this would be a fruitful conversation to have
with Ned[d]rick.
Defense counsel then attempted to impeach Detective Casey’s
testimony, including by pointing out that Neddrick remained at the
scene of Favors’s shooting and was “talking to the police after the
fact.” Detective Casey replied that, despite remaining at the scene,
Neddrick never gave police any statement about what happened, so
he was “definitely not being a witness to tell what happened.”
Under the circumstances of this case, we see no deficiency in
trial counsel’s decisions regarding Detective Casey and Neddrick
Smith. Trial counsel objected to Detective Casey’s testimony that
she did not attempt to interview Neddrick because “Ned[d]rick had
already been involved in quite a few different things,” but then
withdrew his objection. Counsel’s decision to withdraw his objection
and allow Detective Casey to explain that she did not interview
Neddrick based, in part, on the information she received from
Detective Leonpacher, enjoys the “strong presumption” of being a
tactical decision, particularly in absence of trial counsel’s testimony.
25
See Espinosa, supra, Patterson, supra. See also Davis v. State, 306
Ga. 140, 146 (3) (e) (829 SE2d 321) (2019) (holding that “whether to
impeach prosecution witnesses and how to do so are tactical
decisions”) (citation and punctuation omitted). Trial counsel instead
chose to cross-examine Detective Casey on this point, which, under
the circumstances of this case, was within the range of professional
competence. See Faust v. State, 302 Ga. 211, 219 (4) (b) (805 SE2d
826) (2017) (holding that failure to object to a detective’s testimony
as improper bolstering because the testimony relied on the
statements of other individuals for corroboration was not
professionally deficient because trial counsel “attacked these
portions of the detective’s testimony on cross-examination”); Bragg
v. State, 295 Ga. 676, 680 (4) (d) (763 SE2d 476) (2014) (holding that
failure to object to the testimony of two investigators which relied
on the hearsay testimony of another individual was not
professionally deficient because “trial counsel attacked the agents’
testimonies on cross-examination”) (citation omitted). And, objective
counsel could have reasonably decided, as a tactical matter, to let
26
the jury hear from Detective Casey that Neddrick, who accompanied
Smith to the scene, had been a defendant in another homicide case,
allowing the jury to infer that Neddrick might have been the shooter
instead of Smith. See Chavers v. State, 304 Ga. 887, 895 (4) (823
SE2d 283) (2019) (holding that competent counsel could decline to
object to allegedly inadmissible testimony in an effort to “support[]
counsel’s strategy of incriminating” someone other than the
appellant).
(d) Smith also contends that his trial counsel failed to object to
the prosecutor’s closing argument that Neddrick had an “open
murder” charge. However, trial counsel objected: “improper
character evidence through Ned[d]rick, talking about murders. He’s
not – Ned[d]rick is not on trial here,” and the trial court overruled
the objection. Because counsel did object to the prosecutor’s
argument, “those statements cannot be the basis for an ineffective
assistance claim.” Walker v. State, 311 Ga. 719, 726 (4) (a) (859 SE2d
25) (2021) (citation omitted).
Smith’s claims of ineffective assistance of counsel therefore
27
fail.
2. Smith argues that the State knowingly elicited the
purportedly false testimony and argument that Neddrick was a
defendant in another murder case, though the record reflects that
he was only a witness. Smith contends that misidentifying Neddrick
as a defendant requires reversal of Smith’s convictions
independently of his allegations of ineffective counsel.
“[A] conviction obtained through use of false evidence, known
to be such by representatives of the State, must fall under the
Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (79
SCt 1173, 3 LE2d 1217) (1959). 6 See also Byrd v. Owen, 272 Ga. 807,
810 (536 SE2d 736) (2000) (holding that “[a]ny conviction resulting
from false testimony knowingly used by the State is incompatible
with this country’s standards of justice and justifies reversal”). To
prevail on this claim, Smith must show that “(1) the prosecutor
knowingly used perjured testimony or failed to correct what he [or
she] subsequently learned was false testimony; and (2) such use was
6 We assume without deciding that Napue and its progeny apply here.
28
material[,] i.e., that there is any reasonable likelihood that the false
testimony could have affected the judgment.” Harris v. State, 309
Ga. 599, 607 (2) (c) (847 SE2d 563) (2020).
Smith does not contend that Detective Casey and the trial
prosecutor had actual knowledge that Neddrick was a witness, but
not a defendant, in the previous murder case. Rather, Smith
contends that the Atlanta Police Department and the District
Attorney’s office, as respective entities, were aware that Neddrick
was a witness, not a defendant, because both offices worked on the
previous murder, and such knowledge is imputed to Detective Casey
and the trial prosecutor by virtue of their working in those
respective offices. See, e.g., Giglio v. United States, 405 U.S. 150, 154
(92 SCt 763, 31 LE2d 104) (1972) (holding that information one
prosecutor has about a case may be imputable to a different
prosecutor by virtue of working in the same office). See also DeLoach
v. State, 308 Ga. 283, 283 (3) (b) (840 SE2d 396) (2020) (same).
Assuming without deciding that, under Smith’s theory of
imputed knowledge, Detective Casey and the prosecutor “knew” that
29
Neddrick was not previously a homicide defendant, but they said he
was anyway, any such falsehood was immaterial. Again, false
testimony is material if it could “in any reasonable likelihood have
affected the judgment of the jury.” Napue, 360 U.S. at 271. See also
Harris v. State, 309 Ga. at 607 (2) (c) (same). A determination of
materiality requires an examination of the statements at issue in
the context of the entire record. See, e.g., Hood v. State, 311 Ga. 855,
864 (1) (860 SE2d 432) (2021) (holding that whether failure to
disclose a witness’s plea deal was material required the court to
“examine the suppressed evidence in the context of the entire
record”).
Here, the video of the shooting, together with McCier’s
testimony, were highly consistent with a calculated murder and,
conversely, highly inconsistent with Smith’s self-serving recitation
of facts in support of his claim of self-defense. Specifically, Smith
returned to the scene three to five minutes after Favors allegedly
brandished a weapon and allegedly threatened to “kill somebody,”
because Smith purportedly wanted to retrieve forgotten cigarettes.
30
Similarly, Smith testified that he left the scene minutes before so as
not to “get [himself] shot right there,” but then admitted that he
approached Favors despite seeing Favors with “the gun in the hand
now,” because Smith was not “thinking.” The video shows Smith
looking over his shoulder as he approaches Rico, McCier, and
Favors. Smith then appears to walk slightly past the group before
turning and raising his arm(s) in Favors’s direction. At that
moment, Favors and McCier run. Smith admittedly shot Favors in
the back as Favors ran away. McCier identified Smith as the only
person who fired a weapon that day.
Thus, the evidence against Smith was very strong, meaning
there is no reasonable likelihood that the statements about
Neddrick affected the judgment of the jury, especially because
Neddrick’s purported criminal history was not relevant to Smith’s
claim of self-defense. See OCGA § 24-4-401 (providing that evidence
is relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence”).
31
Therefore, this enumeration also fails.
3. Finally, Smith argues that the above errors are cumulative
and warrant reversal. Reversible cumulative error requires a
showing that (1) at least two evidentiary errors, or one error and one
deficient performance of counsel, were committed at trial, and that
(2) those errors, considered along with the entire record, “so infected
the jury’s deliberation that they denied the petitioner a
fundamentally fair trial.” State v. Lane, 308 Ga. 10, 21 (4) (838 SE2d
808) (2020). (citation omitted). However, we have only assumed an
error regarding the State’s implied knowledge about Neddrick’s
purported murder charge, and have discerned no other error.
Therefore, there is no cumulative error to consider. See Thomas v.
State, 311 Ga. 573, 579 (6) (858 SE2d 504) (2021) (holding that
cumulative error analysis “does not apply when, as here, there are
not multiple errors to consider cumulatively”). As such, this
contention also fails.
Judgment affirmed. All the Justices concur.
32