In the Supreme Court of Georgia
Decided: January 19, 2022
S21A1133. BOWEN v. NOEL.
PETERSON, Justice.
Rodney Noel was granted habeas relief from his conviction for
murdering nine-month-old Terrell Williams (“Terrell”). The habeas
court held that Noel’s appellate counsel provided ineffective
assistance for two related reasons: (1) counsel failed to challenge the
trial court’s denial of Noel’s right to impeach his intimate partner
and Terrell’s mother, Crystal Williams (“Williams”), using three
prior violent acts by her, and (2) counsel failed to assert Noel’s right
to use these acts as proof that Williams, not Noel, killed Terrell. The
State appeals.
We disagree with the habeas court that appellate counsel’s
performance was constitutionally ineffective. Noel’s claim regarding
alleged impeachment error fails because it was not preserved at trial and so could not have been successfully raised on appeal. And Noel
has not shown that any deficiency of appellate counsel regarding
proof of third-party guilt was prejudicial. We therefore reverse.
1. Background
(a) Noel is accused of murdering Terrell Williams.
According to trial testimony, in March 2007, Noel, Terrell, and
Williams traveled to Atlanta from Chicago for the weekend, staying
at a hotel. Shortly before this, there was an incident where Williams
threw Terrell into his car seat, but when Terrell left Chicago, he
appeared to be healthy. Early in the weekend he had a hurt lip,
which Noel and Williams attributed to Terrell’s car seat tipping over
on the hotel floor while he was not strapped in. A doctor specializing
in child protection testified that she found this explanation
suspicious, but could not rule out the possibility that this injury was
accidental.
Hotel housekeeper Laverne 1 Pickett testified that the following
Monday afternoon, she was cleaning the room next to Noel’s. She
1 Also referred to in the record as “Laurene.”
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heard a baby crying and a man repeatedly saying “shut up,” then a
thump, after which the noise stopped. She knocked on the door, and
Noel answered. She looked past him into the room and saw Terrell
in a car seat.
Noel attempted to cast doubt on Pickett’s testimony. He
testified that she never came to his door. He presented a copy of the
time-card reflecting when Pickett clocked in and out for work, and
that card indicated that Pickett may have left for the day before she
claimed to have encountered Noel. However, the hotel’s record
keeper explained that the card did not necessarily show that Pickett
had departed, and confirmed that Pickett was assigned to clean
Noel’s room and others on the floor that day and that Pickett
initialed a form indicating that she cleaned that room. Noel also
called his defense investigator, who testified that he spoke with
Pickett. The investigator testified that Pickett told him Noel was
dressed (which conflicted with another witness’s testimony from the
same timeframe) and that Pickett told the investigator she did not,
in fact, hear a thump. In addition, Noel presented evidence that a
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different housekeeper reported hearing “unnatural” baby cries near
Noel’s room, but no other sounds, and that this housekeeper denied
that Pickett ever mentioned what she saw when she went to the
room.
Separately from Pickett’s testimony, a hotel maintenance
engineer testified that he saw Noel naked in the room’s doorway (a
paramedic also described Noel as undressed), panicking and
shouting for help while crouching over Terrell. The engineer called
911 and instructed Noel in CPR. Police officers and paramedics
arrived. Paramedics did not find anything in Terrell’s mouth,
although he had “a white substance” around it. When they asked
Noel what happened, all he said in response was that Terrell “had
some ice cream earlier.” Terrell had no pulse or breath, and his eyes
were fixed and dilated. Terrell was placed on life support at the
hospital and soon died.
Williams told a hospital social worker, and testified at trial,
that she never believed Noel hurt Terrell. According to the social
worker, Williams “initially smiled and giggled often” while
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accompanying Terrell on his way to the hospital. Williams denied
doing so. Noel’s cousin also testified that she spoke by phone with
Williams while Williams was at the hospital, and Williams seemed
unconcerned about Terrell but very anxious about Noel. Hospital
records did note that Williams cried “profusely” when she learned
that Terrell sustained severe brain damage.
It was undisputed at trial that only Noel was in the room with
Terrell immediately before Terrell began manifesting a medical
emergency. Williams told police that she had put Terrell in his car
seat so he could sleep, gone downstairs to do laundry, and upon
returning, found Terrell unresponsive. She testified that Noel told
her Terrell had choked while Noel was sleeping.
Noel told a paramedic he was in the shower when he heard
Terrell choking and got out to help. But he later told a detective that
when Williams went downstairs, he dozed off and awoke to the
sound of Terrell choking. He then shook Terrell and tried to do CPR,
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put water on him in the shower, 2 and held him in front of the air
conditioner. Asked by a detective to demonstrate how he shook
Terrell, Noel gave “a very physical shake.” Noel testified that after
none of this worked, he called for help. Noel soon told the detective,
though, that the detective had misunderstood him and gave a
different demonstration, indicating that he only lightly shook the
car seat. At trial, Noel testified that he “jostled” either Terrell or the
car seat holding him.
At trial, medical experts disagreed about the cause and timing
of Terrell’s medical event. It was undisputed that Terrell suffered a
fatal “severe brain injury” including bleeding and swelling. The only
expert who testified about choking denied that choking could have
caused Terrell’s injuries. According to three State experts, Terrell’s
head injuries were consistent with having been violently shaken
shortly before manifesting a medical emergency. However, the
medical examiner attributed Terrell’s death only to non-accidental
2 Williams confirmed that Terrell was wet when she returned to the room.
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traumatic head injuries generally, and could not make a
determination about shaking as the specific cause. The defense’s
expert testified that Terrell’s head injuries were consistent with
being hit by a hand or fixed object – not with being shaken – and
could have been inflicted up to 24 hours before Terrell became
nonresponsive. He testified that Terrell’s head injuries may not have
been immediately visible or quickly incapacitating. Terrell also had
some bruising on his buttocks and thigh, according to the defense
expert and a State expert. (Additionally, while the medical examiner
attributed the buttocks shading to a natural skin mark, he did note
buttock abrasions and thigh bruising.) The defense expert indicated
that the buttock bruising was from blunt force and could have been
caused by squeezing or by being struck with a linear object, like a
belt. The medical examiner also stated that a belt could have caused
the thigh bruising. Two of Williams’s belts were found in the hotel
room, and Noel denied having any belts of his own with him.
Another State expert disavowed being able to tell when this nonhead bruising — which she did not personally see when examining
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Terrell — was caused.
(b) Noel tries to introduce Williams’s three violent acts.
During the trial, Noel blamed Williams for Terrell’s injuries
and tried to present evidence of three prior violent acts Williams had
committed in Illinois. In 2004, she struck a fellow high school
student with a padlock and pleaded guilty to battery, receiving a
one-year sentence. In 2007, she was charged with domestic battery
for pushing her adult aunt to the ground; it is not clear whether this
resulted in a conviction. In 2008 — between Noel’s 2007 indictment
and his 2009 trial in this case — Williams pleaded guilty to domestic
battery with bodily harm, which Noel characterizes as the stabbing
of an ex-boyfriend, and she was sentenced to 18 months of probation.
The State moved in limine to exclude evidence of these acts.
Noel’s counsel initially said that “the applicable statute” as to
admissibility was former OCGA § 24-9-84.1, under which he claimed
“any evidence” of crimes punishable by one year or more “can be
introduced into the trial,” and “what we’re talking about here is
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impeachment material relevant to a State’s witness.” 3 He continued
that he wanted “to introduce certified copies of these documents into
evidence to impeach [Williams] in the event she did not acknowledge
the conduct.” But counsel then stated, “I’m not offering this
information to impeach her. I’m going to be asking her questions
about the offenses for the purposes of showing her propensity for
violence and inability to control her anger,” adding that “nothing
could be more germane” to his defense. Following a lengthy
exchange, counsel concluded by disavowing any intention of
impeaching Williams: “. . . I’m not seeking to impeach her. That’s
not the goal here. That’s not what I need to do. I’m only asking the
3 The statute provided, in relevant part:
(a) General rule. For the purpose of attacking the credibility of a
witness . . . (1) Evidence that a witness has been convicted of a
crime shall be admitted if the crime was punishable by death or
imprisonment of one year or more under the law under which the
witness was convicted if the court determines that the probative
value of admitting the evidence outweighs its prejudicial effect to
the witness; and . . . (3) Evidence that any witness . . . has been
convicted of a crime shall be admitted if it involved dishonesty or
making a false statement, regardless of the punishment that could
be imposed for such offense.
OCGA § 24-9-84.1 (a) (2005).
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questions to establish her propensity for violence and inability to
control her anger, which is absolutely relevant to the facts in this
case.” The trial court asked whether this was “just a question of
relevance.” Counsel agreed that it was, as he was just trying to show
that the only other person who could have fatally injured Terrell “is
a violent person who can’t control her anger.” The trial court barred
the evidence as irrelevant and because “the probative value does not
exceed the prejudicial effect.”
(c) Noel is convicted, the conviction is affirmed, and he
obtains habeas relief.
The jury acquitted Noel of malice murder, but found him guilty
of three counts of felony murder, predicated on separate counts of
aggravated assault, aggravated battery, and first-degree child
cruelty, and guilty of the predicate counts as well. On direct appeal,
Noel did not challenge the trial court’s ruling as to excluding
evidence of Williams’s prior violent acts, and this Court affirmed his
convictions. See Noel v. State, 297 Ga. 698 (777 SE2d 449) (2015).
Through new counsel, Noel filed a habeas petition challenging
his appellate counsel’s failure to raise the admissibility of the
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contested evidence of Williams’s prior violent acts, both as
impeachment under former OCGA § 24-9-84.1 and as proof of thirdparty guilt. The habeas court concluded that appellate counsel
provided ineffective assistance and granted Noel relief. The State
now appeals.
2. Analysis
A claimant raising ineffective assistance of appellate counsel
must demonstrate both that counsel performed deficiently and that
this deficiency prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). Deficiency means
that “the identified acts or omissions were outside the wide range of
professionally competent assistance.” Id. at 690. It turns on “the
objective reasonableness of counsel’s performance, not counsel’s
subjective state of mind.” Brown v. State, 302 Ga. 813, 815 (2) (809
SE2d 742) (2018). Prejudice means that “a reasonable probability
exists that . . . the outcome of the appeal would have been different.”
Gramiak v. Beasley, 304 Ga. 512, 513 (I) (820 SE2d 50) (2018). “We
need not address both components of this test” if one is not proven.
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Watson v. State, 303 Ga. 758, 762 (2) (d) (814 SE2d 396) (2018).
Although we review a habeas court’s factual findings only for clear
error, we “appl[y] the facts to the law de novo” in analyzing
deficiency “and whether any purported deficiency was prejudicial.”
Johnson v. Williams, 308 Ga. 791, 794 (2) (843 SE2d 550) (2020).
The habeas court erred when it ruled that appellate counsel
was constitutionally ineffective. Noel’s claim that the contested
evidence was admissible for impeachment was not preserved at
trial, so appellate counsel was not deficient for failing to raise it. 4
And any deficiency in failing to raise the evidence’s admissibility as
proof of third-party guilt was not prejudicial.
(a) Noel’s impeachment claim was not preserved at trial, so
his appellate counsel was not deficient in not raising that
issue.
Noel contends, and the habeas court ruled, that appellate
counsel performed deficiently by failing to argue on appeal that the
contested evidence should have been admitted under former OCGA
4 Noel did not claim in the habeas court and does not argue here that appellate counsel should have challenged trial counsel’s failure to preserve any error as ineffective assistance of trial counsel, so that issue is not before us.
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§ 24-9-84.1. That statute allowed a witness to be impeached with
felony convictions, subject to a probative value-prejudice balancing
test. See, e.g., Martin v. State, 305 Ga. App. 764, 767 (2) (700 SE2d
871) (2010).
This claim was not preserved at trial. “Under the old Evidence
Code, to preserve for any sort of review on appeal a claim that the
trial court improperly excluded . . . evidence under a particular
theory, a defendant had to argue at trial that the evidence was
admissible under that theory.” Cross v. State, 309 Ga. 705, 710 (2)
(848 SE2d 455) (2020). Noel’s trial counsel ultimately did not seek
introduction of the contested evidence for impeachment under
former OCGA § 24-9-84.1. Although counsel initially referenced that
statute and impeachment, he concluded by saying only that the
evidence was admissible to show Williams’s propensity to anger,
expressly disavowing an impeachment theory. Noel’s asserted
OCGA § 24-9-84.1 error was not preserved, so appellate counsel was
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not deficient for failing to raise it.5
(b) Noel failed to show prejudice from any deficiency by
counsel regarding proof of third-party guilt.
Noel failed to show prejudice from any deficiency by appellate
counsel in failing to raise the contested evidence as proof of thirdparty guilt. There is no reasonable probability that Noel’s appeal
would have had a different outcome had appellate counsel raised the
issue. Under the law at the time of Noel’s trial, a defendant could
“introduce relevant and admissible testimony tending to show that
another person committed the crime for which the defendant is
tried.” Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998);
see also Holmes v. South Carolina, 547 U.S. 319, 324 (126 SCt 1727,
164 LE2d 503) (2006) (discussing accused’s federal constitutional
right to present a full defense). But for evidence to be admissible on
this basis, it had to “raise a reasonable inference of the defendant’s
5 Before this Court, Noel also claims the evidence was admissible under OCGA § 24-4-404 (b). But trial counsel did not raise that statute’s predecessor, OCGA § 24-4-2. Under the old Evidence Code, which was in force at the time of trial and so governs this appeal, this argument was not preserved. See Lane v. State, ___ Ga. ___ (1) (864 SE2d 34) (Case No. S21A1029, decided Oct. 5, 2021).
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innocence,” and either “show that the other person has recently
committed a crime of the same or similar nature” or “directly connect
the other person with the corpus delicti.” Klinect, 269 Ga. at 573 (3).
We need not decide whether the contested evidence should
have been admitted under this test. In order to prevail in habeas
corpus proceedings based on ineffective assistance of appellate
counsel, Noel must show more than what would be required for
admissibility (that the evidence would have raised a reasonable
inference of Williams’s guilt, and either show that she committed a
crime of the same or similar nature, or directly connect her with the
corpus delicti); he also bears the higher burden of showing a
reasonable probability that his appeal would have had a different
outcome but for counsel’s deficiency. See Gramiak, 304 Ga. at 513
(I).
Noel has not succeeded in doing so. The case against Noel was
not overwhelming, but neither was it particularly weak. Pickett
testified that she heard a man tell a crying baby to “shut up,” then
a thump, after which the baby was silent; after this, she saw Noel
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alone with Terrell. Noel first said he shook Terrell and demonstrated
doing so forcefully, then claimed that he only lightly “jostled” either
Terrell or the car seat holding him. Noel also changed his story about
whether he was sleeping or showering before he noticed Terrell
having difficulties. His claim that Terrell choked did not align with
any of the medical expert testimony. Noel does not challenge the
admissibility of this circumstantial evidence, and it amply supports
the jury’s verdict, even considering Noel’s attempts to undercut
Pickett’s credibility. Cf. Virger v. State, 305 Ga. 281, 286 (2), 294 (7)
(824 SE2d 346) (2019) (deeming evidence of child murder “strong”
where child manifested bruising after being with defendant, who
was one of two adults present at time of fatal injury, and defendant’s
account contradicted medical evidence).
But prejudice requires more than just a consideration of the
strength of the case against Noel. It requires considering the
marginal effect the introduction of the excluded evidence would
reasonably have had. See Yi v. State, 267 Ga. 171, 172 (2) (475 SE2d
623) (1996) (“In considering prejudice, the defendant has the burden
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of showing a reasonable probability that without counsel’s errors
the jury would have had a reasonable doubt concerning guilt.”).
Here, that effect was not reasonably likely to have been significant.
None of the three incidents regarding Williams involved violence
against a young child. Noel was allowed to introduce evidence that
more directly gave rise to an inference of Williams’s guilt — her
throwing Terrell into a car seat only a few days earlier, the
possibility that Terrell was beaten by one of Williams’s belts, and
Williams’s inappropriate demeanor on the way to and at the
hospital. Whatever additional inference — beyond that already
arising from the admitted evidence — that might arise from three
incidents of violence against adults over a four-year period is simply
too tenuous to constitute prejudice in the context of this case.
This conclusion is reinforced when we compare the excluded
evidence here with the evidence in other cases admitted as raising a
reasonable inference of third-party guilt. The other acts in those
cases had as a victim either the same person as the charged crime
or a similarly vulnerable child. See Gilreath v. State, 298 Ga. 670,
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673-674 (2) (784 SE2d 388) (2016); Scott v. State, 281 Ga. 373, 376-378 (3) (637 SE2d 652) (2006). This distinction does not necessarily
mean that the contested evidence was properly excluded from the
trial; again, we express no view on that subject. But it does mean
that the inference of Williams’s guilt flowing from that evidence
would have been substantially weaker than in Gilreath and Scott,
which, in turn, undercuts Noel’s effort to carry his higher burden of
showing prejudicial deficiency in appellate counsel’s performance.
In the light of the evidence against Noel and the comparatively weak
implication of guilt the contested evidence cast on Williams, Noel
was not prejudiced by any deficient performance by appellate
counsel as to this issue.
Judgment reversed. All the Justices concur.
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