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official text of the opinion.
In the Supreme Court of Georgia
Decided: October 11, 2023
S23A0654. PAULDO v. THE STATE.
LAGRUA, Justice.
Appellant Raekwon Pauldo was convicted of malice murder in
connection with the shooting death of Jacquel Smith.1 On appeal,
Pauldo contends that his trial counsel provided constitutionally
ineffective assistance by (1) failing to adequately prepare the
defense of accident, (2) failing to limit testimony concerning the
1 The shooting occurred on October 29, 2017. On December 19, 2017, a
Laurens County grand jury indicted Pauldo for malice murder, felony murder,
and three counts of aggravated assault. Prior to trial, the trial court suppressed portions of Pauldo’s custodial statement to police, and we reversed that ruling.
See State v. Pauldo, 309 Ga. 130 (844 SE2d 829) (2020). Pauldo was tried in
February 2022, and the jury found him guilty of all counts. The trial court
sentenced Pauldo to serve life in prison without the possibility of parole on the
malice murder count and vacated or merged the remaining counts. Pauldo filed
a timely motion for new trial, which was amended through new counsel. After
holding an evidentiary hearing, the trial court denied the motion for new trial
on January 18, 2023. Pauldo filed a timely notice of appeal, and his case was
docketed to this Court’s April 2023 term and submitted for a decision on the
briefs.
registration of Pauldo’s gun, and (3) failing to adequately inform him
of the State’s plea offer. For the reasons that follow, these claims
fail, and we affirm Pauldo’s conviction.
The evidence presented at trial showed that on October 29,
2017, Pauldo, Smith, and Zuri Brown were watching football in the
living room of Brown’s house when Brown’s mother, who was in the
next room, heard “a loud gun pop.” Brown’s mother ran into the room
and saw Smith sitting on the couch, gasping for air. Pauldo told
Brown’s mother that Smith killed himself. Brown drove Smith and
Pauldo to the hospital, where Smith died from the gunshot wound.
The surveillance video from the front of the emergency room
showed Brown park his car in front of the emergency room, get out
of the car, and yell for help. Hospital personnel removed Smith from
the back seat of the car, placed him on a gurney, and wheeled him
into the hospital. The video showed that Pauldo was not inside
Brown’s car when it arrived at the hospital; the video showed Pauldo
running up to Brown’s car several minutes after Brown parked and
the police had arrived. After watching this surveillance video, police
2
obtained another surveillance video from the hospital’s parking lot,
which showed that, around the time Brown was parking his car in
front of the emergency room, Pauldo was running from the back of
the parking lot toward Brown’s parked car. Police used these videos
to recover a Taurus 9mm semi-automatic handgun in a drainage
ditch in the area from which Pauldo was seen running, and ballistics
testing confirmed that the recovered gun fired the bullet that was
retrieved from Smith’s body.
Brown and Pauldo both gave statements to police. Brown
stated he was in the bathroom when the shooting occurred, but that
he saw Pauldo with a gun, heard Pauldo and Smith arguing, and
heard Pauldo say, “I’ll shoot your a**.” Brown also admitted that he
let Pauldo out of the car prior to arriving at the hospital so that
Pauldo could dispose of the gun.
Pauldo initially told police that he had his back turned to Smith
when Pauldo “heard a gunshot go off.” But he eventually admitted
that he and Smith got into an argument, Smith put his hand in
Pauldo’s face, and Pauldo reacted by hitting Smith with Pauldo’s
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gun, which “went off.” Throughout Pauldo’s interview, he denied
intentionally shooting Smith. Regarding the gun, Pauldo stated it
was registered to him and he hid the gun out of fear prior to arriving
at the hospital.
At the beginning of Pauldo’s interview, which was about five
hours after the shooting, he consented to a gunshot residue test, but
it was not performed until about 20 minutes later. During this 20-minute period, one officer noticed that “[Pauldo] was continuously
wiping his hands on his pants, with each other, he even took a tissue,
at one point, and wiped his hands with the tissue.” Another officer
took the tissue from Pauldo because she knew that “gunshot residue
. . . c[ould] be wiped off of the hands.” Pauldo’s gunshot residue test
was negative.2
At trial, Pauldo’s defense theory was that there was no
evidence that Pauldo pulled the trigger and shot Smith and that the
evidence of a recall on Pauldo’s gun for having a faulty safety showed
2 Police collected the tissue that Pauldo used to wipe his hands, but it
was not tested for gunshot residue.
4
that the gun likely discharged without him pulling the trigger. The
State’s firearms expert testified that, based on her testing, the gun
was functioning properly, but she noted that the cartridge case
remained inside the gun even though “the typical cycle of fire for a
semi-automatic [gun] is that the cartridge case would be extracted
from t[he] chamber and [ejected] out of the [gun].” The firearms
expert referred to this scenario as “a failure to extract and eject” and
said this could be caused by different variables, including how the
gun was held, which could “imped[e] the slide from cycling
correctly,” or by defective ammunition that is “out of spec,” such that
“it’s not generating enough pressure for that slide to cycle.” The
firearms expert acknowledged that there was “a class action lawsuit
against [the gun’s manufacturer]” alleging that “[w]hen the safety
[was] engaged on the [gun]” and the gun “was dropped, [it] would
discharge.” The firearms expert stated that she did not conduct “an
abuse test” on the gun to check for a faulty safety or to determine
whether the gun would fire “if the gun was hit on someone’s head”
because “[a]n abuse test ha[d] to be specifically requested,” and one
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was not requested.
Detective Brawner Ashley was asked whether he “check[ed]
the registration of [Pauldo’s] gun,” and Detective Ashley responded:
“Yes, we did. We . . . checked it through [the Georgia Crime
Information Center] to see whether or not it was stolen. And, also,
Sergeant [Lee] Washburn did a trace on the weapon itself.”
Detective Ashley did not elaborate on whether the gun was reported
as stolen, but he said that Sergeant Washburn had the results of the
trace. When Sergeant Washburn testified, he said the trace showed
that the gun was registered to someone other than Pauldo. But
Sergeant Washburn went on to say that if the registered owner “had
sold it to somebody and not put out a trace for it,” the trace would
“not show who it was sold to after he purchased it.”
The medical examiner testified that the bullet that killed
Smith entered his body through the middle of his chin, exited
underneath his chin, and re-entered in his chest. The bullet had a
downward trajectory from the chin, and Smith had “soot and
stippling” on his chin, meaning his skin was “three to six inches from
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the end of the barrel” of the gun when it was fired. The medical
examiner also noted an abrasion on the left side of Smith’s forehead.
According to the medical examiner, the abrasion contained “several
parallel lines” and was “very consistent with” having been hit with
Pauldo’s gun.
1. Pauldo contends his trial counsel provided constitutionally
ineffective assistance by (a) failing to adequately prepare the
defense of accident because counsel failed to present a firearms
expert, (b) failing to adequately prepare the defense of accident in
that counsel failed to introduce “certified documentation” of the
gun’s recall, (c) failing to limit testimony concerning the registration
of Pauldo’s gun, and (d) failing to adequately inform Pauldo of the
State’s plea offer.
To prevail on these claims, Pauldo must demonstrate both that
his trial counsel’s performance was professionally deficient and that
he was prejudiced by this deficient performance. See Bates v. State,
313 Ga. 57, 62 (2) (867 SE2d 140) (2022) (citing Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
7
(1984)). To establish deficient performance, Pauldo must show that
trial counsel performed his duties in an objectively unreasonable
way, considering all the circumstances and in the light of prevailing
professional norms. See id. Establishing deficient performance
is no easy showing, as the law recognizes a strong
presumption that counsel performed reasonably, and [the
appellant] bears the burden of overcoming this
presumption. To carry this burden, he must show that no
reasonable lawyer would have done what his lawyer did,
or would have failed to do what his lawyer did not. In
particular, decisions regarding trial tactics and strategy
may form the basis for an ineffectiveness claim only if
they were so patently unreasonable that no competent
attorney would have followed such a course.
Park v. State, 314 Ga. 733, 740-741 (879 SE2d 400) (2022) (citation
and punctuation omitted). To establish prejudice, Pauldo must prove
that there is a reasonable probability that, but for his trial counsel’s
deficiency, the result of the trial would have been different. See
Bates, 313 Ga. at 62 (2). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. (citation and
punctuation omitted). “And, this burden is a heavy one.” Id. at 62-63 (2) (citation and punctuation omitted). “If an appellant fails to
8
meet his or her burden of proving either prong of the Strickland test,
the reviewing court does not have to examine the other prong.”
Taylor v. State, 315 Ga. 630, 647 (5) (b) (884 SE2d 346) (2023)
(citation and punctuation omitted).
(a) Pauldo contends his trial counsel provided constitutionally
ineffective assistance by failing to adequately prepare the defense of
accident because counsel failed to present a firearms expert.3
Assuming without deciding that counsel was deficient, we agree
with the trial court that Pauldo failed to establish prejudice.
It is well established that a defendant fails to establish
3 Regarding the defense of accident, we note that Pauldo requested that
the trial court give Georgia Pattern Jury Instructions § 3.00.00: Affirmative
Defense; Definition; Burden of Proof and § 3.40.10: Accident. The trial court,
citing Kellam v. State, 298 Ga. 520 (783 SE2d 117) (2016), denied this request,
concluding “accident is just not applicable here.” See id. at 523 (2) (holding that in order to claim the defense of accident, “it must be established a defendant
acted without criminal intent, was not engaged in a criminal scheme, and was
not criminally negligent, i.e., did not act in a manner showing an utter
disregard for the safety of others who might reasonably be expected to be
injured thereby.” (citation and punctuation omitted)), overruled on other
grounds by Mitchell v. State, ___ Ga. ___ (2) (___ SE2d ___) (Case No.
S23A0599, decided August 21, 2023). See also Allaben v. State, 315 Ga. 789,
793 (1) n.3 (885 SE2d 1) (2023). On appeal, Pauldo does not raise any
contentions regarding the failure to instruct on affirmative defense and
accident.
9
prejudice under Strickland when he merely contends that trial
counsel was deficient for failing to present an expert, without also
presenting evidence at the motion-for-new-trial hearing about what
the potential expert would have testified to at trial. See, e.g., Coley
v. State, 305 Ga. 658, 665 (6) (b) (827 SE2d 241) (2019) (concluding
that the appellant failed to show prejudice when he “presented no
evidence [at the motion-for-new trial hearing] that he has had the
firearm or the magazine tested”); Howard v. State, 298 Ga. 396, 399
(2) (782 SE2d 255) (2016) (concluding that the appellant failed to
show prejudice when he “did not have the blood tested post-trial”
and thus “has not shown that [blood testing] would have been
favorable to his defense”); Geiger v. State, 295 Ga. 648, 653-54 (5) (b)
(763 SE2d 453) (2014) (concluding that the appellant failed to show
prejudice when he “did not present any evidence at the motion[-]for[-]new[-]trial hearing that additional testing of the shell casing would
have produced evidence that would have been favorable to him at
his trial”). This is because “mere speculation about what the
evidence would have shown had it actually been obtained does not
10
satisfy the requirement of showing prejudice.” Coley, 305 Ga. at 666
(6) (b).
Here, Pauldo failed to present any evidence at the motion-fornew-trial hearing about what evidence could have been elicited from
a potential firearms expert that would have been different from
what the State’s firearm expert testified to at trial. Pauldo therefore
has not shown that a reasonable probability exists that the result of
the trial would have been different had this potential evidence—
whatever it may have been—been presented at trial. See Coley, 305
Ga. at 665 (6) (b). As a result, this claim of ineffective assistance
fails.
(b) Pauldo contends his trial counsel provided constitutionally
ineffective assistance by failing to adequately prepare the defense of
accident in that counsel failed to introduce “certified documentation”
of the gun’s recall. We conclude that counsel was not deficient.
Here, trial counsel elicited testimony from the State’s firearm
expert that Pauldo’s gun was subject to a manufacturer’s recall due
a faulty design with the safety and that an “abuse test” was not
11
conducted. Trial counsel also cross-examined the expert on the
difference between a “check function test”—which was conducted
and resulted in a finding that the gun’s safety was working as
expected—and an abuse test, which was not conducted. In closing
argument, trial counsel argued the State had not carried its burden
to prove Pauldo’s guilt in part because no “abuse test” was conducted
on the gun even though it had a known manufacturer’s defect
causing it to discharge without a trigger pull.
“[A]n attorney’s decisions as to what witnesses and other
evidence to present are a matter of trial strategy,” Evans v. State,
315 Ga. 607, 611 (2) (c) (884 SE2d 334) (2023) (citation and
punctuation omitted), and in the absence of evidence to the contrary,
counsel’s decisions are presumed to be strategic. See Holland v.
State, 314 Ga. 181, 190 (3) (875 SE2d 800) (2022). A strategic
decision “will not form the basis for an ineffectiveness claim unless
it is so unreasonable that no competent attorney would have made
that decision under the circumstances.” Davis v. State, 315 Ga. 252,
262 (4) (a) (882 SE2d 210) (2022) (citation and punctuation omitted).
12
Pauldo contends his trial counsel performed deficiently by
failing to introduce “certified documentation” surrounding the gun’s
recall because Pauldo’s “sole defense” was that the gun discharged
without a trigger pull. But counsel’s strategic decision to elicit
testimony from the State’s firearms expert to explain the lawsuit
concerning the gun, the manufacturer’s recall of the gun, and the
gun’s faulty safety that led to the lawsuit and recall—instead of
introducing certified documents supporting this testimony—was not
so unreasonable that no competent attorney would have made that
decision under the circumstances. Moreover, Pauldo did not
introduce any evidence at the motion-for-new-trial hearing as to
what the “certified documentation” of the gun’s recall would have
proven, so he has not shown that trial counsel performed deficiently
by deciding not to introduce that evidence at trial and to instead
elicit testimony about the recall from the State’s firearms expert.
See Bates, 313 Ga. at 67 (2) (d) (concluding trial counsel’s strategy
to use the State’s expert to explain PTSD and how it affected the
defendant’s conduct was reasonable). Accordingly, we conclude
13
Pauldo failed to demonstrate that his counsel performed deficiently,
and this claim fails.
(c) Pauldo appears to contend his trial counsel provided
constitutionally ineffective assistance by failing to either “move to
exclude any testimony concerning the registry of the [gun]” or
present evidence that Pauldo purchased the gun. At the motion-fornew trial hearing, trial counsel testified that, prior to trial, she was
under the impression that Pauldo was the gun’s registered owner.
Trial counsel said that, after Sergeant Washburn testified at trial, a
member of Pauldo’s family gave her a bill of sale, evidencing the
gun’s sale from the registered owner to Pauldo. Trial counsel further
testified that the registered owner “was not being cooperative as far
as just coming to court” and she did not seek to subpoena him to
testify at trial. Pauldo contends that the evidence concerning the
gun’s registration was “bad character” evidence that prejudiced him
at trial.
Assuming without deciding that Pauldo’s counsel was
deficient, we conclude that Pauldo has not established prejudice
14
because he has not shown a reasonable probability of a better result
had his trial counsel either moved to exclude any testimony
concerning the registry of the gun or presented evidence that Pauldo
purchased the gun. See Hughes v. State, 312 Ga. 149, 154 (2) (a) (861
SE2d 94) (2021) (weighing the strength of the evidence of the
defendant’s guilt against the evidence that trial counsel failed to
elicit at trial).
The testimony about the registry of the gun, particularly in the
absence of evidence that Pauldo purchased the gun, could have led
the jury to infer that Pauldo stole the gun because he wrongly stated
that it was registered to him. But this inference is weakened by the
fact that there was no direct evidence that the gun was stolen and
Sergeant Washburn acknowledged that the registered owner could
“ha[ve] sold it to somebody and not put out a trace for it.” Although
the prosecutor mentioned during closing argument that Pauldo
“lied” about the gun being registered to him, this was not
emphasized. Rather, the prosecutor identified this as one of Pauldo’s
“lies”; these “lies” included Pauldo telling Brown’s mother that
15
Smith killed himself and Pauldo initially telling police that he never
saw a gun and did not know how Smith was shot. Thus, any
prejudice from the prosecutor mentioning this “lie” in closing
argument was reduced because it was mentioned in the context of
much more incriminating statements made by Pauldo.
And the evidence against Pauldo was very strong. During
Pauldo’s interview with police, he confessed to hitting Smith in the
face with a loaded gun, claiming it “went off,” and Pauldo’s
confession was corroborated by the medical examiner’s testimony
concerning the abrasion on Smith’s head. Additionally, Brown heard
Pauldo threaten to shoot Smith right before Smith was shot.
Moreover, immediately after the shooting, Pauldo told Brown’s
mother that Smith killed himself, and Pauldo hid the gun on his way
to the hospital. See Davenport v. State, 309 Ga. 385, 389 (2) (846
SE2d 83) (2020) (concluding that the evidence “though
circumstantial, was very strong” because the forensic evidence
indicated that the defendant shot the victim, attempted to cover up
the crime, and then fabricated a story to the police that the victim
16
killed herself).
We conclude that, given the very strong evidence of Pauldo’s
guilt, he has not shown that evidence that the gun was registered to
someone else had any impact on the outcome of his trial. Thus,
Pauldo has failed to demonstrate that there is a reasonable
probability that, but for his counsel’s alleged deficiency, the result of
the trial would have been different, and this claim fails. See
Davenport, 309 Ga. at 389 (2) (concluding the defendant could not
demonstrate prejudice due to very strong evidence of guilt).
(d) Pauldo contends his trial counsel provided constitutionally
ineffective assistance by failing to adequately inform him of the
State’s plea offer of 20 years to serve in prison on the reduced charge
of voluntary manslaughter. Assuming without deciding that
Pauldo’s trial counsel performed deficiently, we conclude that
Pauldo has not established prejudice. To prevail on his claim, Pauldo
must demonstrate that, but for his counsel’s deficient performance,
there is a reasonable probability that “he would have accepted the
State’s plea offer (and that the trial court would have accepted its
17
terms).” Calhoun v. State, 308 Ga. 146, 154 (2) (d) (839 SE2d 612)
(2020). See also Lafler v. Cooper, 566 U.S. 156, 164 (II) (B) (132 SCt
1376, 182 LE2d 398) (2012).
Pauldo argues that “a reasonable person in Pauldo[’]s place
would have accepted the plea had” counsel properly advised Pauldo
of the plea offer, but that is not the standard for establishing
prejudice “where ineffective assistance results in a rejection of the
plea offer and the defendant is convicted at the ensuing trial.” Lafler,
566 U.S. at 163 (II) (A). See id. at 164 (II) (B) (holding that a
defendant must show “that the defendant would have accepted the
plea” (emphasis supplied)). See also Washington v. Atty Gen. of State
of Alabama, 75 F4th 1164, 1173 (III) (A) (11th Cir. 2023) (holding
that, in determining whether “the petitioner would have accepted a
plea offer,” courts should consider “protestations of innocence . . .
along with other facts, such as why the petitioner chose to reject
other offers and the discussions that petitioner had with his counsel
about those offers”).
In the order denying the motion for new trial, the trial court
18
found that “[Pauldo] NEVER testified that he would have
accepted the plea” and concluded that Pauldo failed to establish
prejudice. (Emphasis in original). The trial court’s factual finding is
supported by the record and was not clearly erroneous. See Bonner
v. State, 314 Ga. 472, 474 (1) (877 SE2d 588) (2022) (explaining that
this Court accepts a trial court’s factual findings unless they are
clearly erroneous). And there was no other evidence presented that
showed Pauldo would have accepted the plea offer.
Thus, Pauldo has failed to show that, but for his counsel’s
deficient performance, there is a reasonable probability that he
would have accepted the State’s plea offer. Accordingly, this claim
fails. See Yarn v. State, 305 Ga. 421, 427 (4) (826 SE2d 1) (2019)
(concluding the defendant “has not satisfied the Lafler test for
prejudice because he has failed to show that he would have accepted
the plea offer but for his counsel’s allegedly deficient advice”).
2. Lastly, we consider the cumulative effect of prejudice resulting
from any assumed deficiencies in trial counsel’s performance at
trial. See Schofield v. Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56)
19
(2007) (“[I]t is the prejudice arising from counsel’s errors that is
constitutionally relevant, not that each individual error by counsel
should be considered in a vacuum.”) (citation and punctuation
omitted), overruled on other grounds, State v. Lane, 308 Ga. 10, 23
(1) (838 SE2d 808) (2020). Pauldo makes no argument that any
prejudice stemming from the assumed deficiencies in subdivisions 1
(a) and (c) can be combined with any prejudice from the assumed
deficiency in subdivision 1 (d). He also makes no argument as to how
he was prejudiced by any cumulative effect of the assumed
deficiencies in subdivisions 1 (a), (c), and (d). In sum, Pauldo has
failed to carry his burden of establishing cumulative error. See Reed
v. State, 314 Ga. 534, 554 (8) n.18 (878 SE2d 217) (2022).
Judgment affirmed. All the Justices concur.
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