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: October 11, 2023
S23A0728. PRIESTER v. THE STATE.
WARREN, Justice.
In March 2020, Darnell Priester was convicted of malice
murder, aggravated battery, and other crimes in connection with the
shooting death of Thomas Robinson and the non-fatal shooting of
Timothy Nelson. He appeals those convictions, arguing that the
evidence presented at trial was not sufficient to support them, the
trial court erred by denying him a new trial on the general grounds,
and the trial court committed plain error by not giving jury
instructions related to justification and perjury. Priester also
argues that his trial counsel provided ineffective assistance by
failing to object to the lack of jury instructions related to justification
and perjury; failing to object to testimony that implicated Priester’s
right to remain silent; failing to cross-examine Shane Godsey;
requesting an instruction on the necessity of corroboration of
accomplice testimony; failing to file a pretrial motion for immunity;
and failing to object to narrative testimony, to “asked and answered”
testimony, and to the prosecutor “testifying.”
As explained below, we conclude that the evidence was
sufficient to support Priester’s convictions; his thirteenth juror claim
presents nothing further for this Court to review; Priester has not
shown plain error related to the jury instructions; and Priester has
failed to prove that counsel’s assistance was ineffective in any of the
ways alleged. Thus, we affirm Priester’s convictions.1
1 The shooting occurred in August 2017. In October 2017, a Paulding
County grand jury indicted Priester for malice murder, felony murder, five
counts of aggravated assault (against Robinson, Nelson, Shakeemia Bedford,
Te’Ara Starks, and Marquis Lewis), aggravated battery against Nelson, and
two counts of possession of a firearm during the commission of a felony (for the
murder of Robinson and aggravated assault of Nelson). At a trial in February
2020, a jury found Priester guilty of all counts. In March 2020, the court
sentenced him to serve life in prison without parole for malice murder, 20
concurrent years in prison for aggravated battery, 20 concurrent years in
prison for each of three aggravated assault counts, and 5 consecutive years in
prison for one of the firearm possession counts. The remaining counts were
merged or vacated by operation of law. Priester timely moved for a new trial,
amending it twice with new counsel. In January 2023, after an evidentiary
hearing, the trial court denied Priester’s amended motion. He filed a timely
notice of appeal. The case was docketed to the April 2023 term of this Court
and submitted for a decision on the briefs.
2
1. The evidence presented at trial showed the following.2 On
August 18, 2017, Priester, his brother Josh, and their friend
Makaylen Sullivan went to a football game at their high school. Also
at the game was a second group of teenagers, which included
Robinson, Nelson, Shakeemia Bedford, Te’Ara Starks, and Marquis
Lewis. Robinson’s group and Priester’s group had a history of
conflict, including a fight at a gas station in July 2017 between
Nelson and Priester.3 Sullivan testified that at the game, Robinson
and his friends were “acting like they want[ed] to fight, bothering
us.”4 Nelson testified that Priester “bumped into” him at the game.
2 Because this case requires an assessment of the harmful or prejudicial
effect of one alleged trial court error and one alleged deficiency of trial counsel, “we lay out the evidence in detail and not only in the light most favorable to
the verdicts.” Clark v. State, 315 Ga. 423, 424 (883 SE2d 317) (2023) (citation
and punctuation omitted).
3 Additionally, a police officer, who testified that he believed there was
“an ongoing dispute between the parties,” “remember[ed] an incident where
someone had shot at [the Priesters’] home,” and an incident in May 2015 when
“15 or so people” gathered around the Priesters’ house “screaming and cursing
at them and threatening [Ms. Priester] and her boys.” He believed that this
incident was linked to conflict between the Priesters and someone who was
friends with Robinson’s group.
4Before testifying, Sullivan invoked his Fifth Amendment right to
remain silent, and the State granted him use immunity for his testimony.
3
After leaving the football game, Priester’s group went to Shane
Godsey’s house. Later that night, Lewis, from Robinson’s group,
went to Godsey’s house to buy marijuana. Lewis testified that at the
house, Priester “came to me and started cursing me out and calling
me out . . . and telling me to tell my friends to pull up,” meaning “to
come to them.” Sullivan, on the other hand, testified that when
Lewis saw one or both of the Priester brothers at the house, Lewis
started cursing and said, “Oh, that’s your b**ch a**”; Lewis left after
about five minutes, but said, “we finna pull back up.”
Lewis and the rest of Robinson’s group then decided to drive to
Godsey’s house in Starks’s car. At some point, either before they
began driving or on the drive there, Bedford told the group that the
Priester brothers owed her $20, and she said, “I want his head.”
Bedford testified that the group was not “attempting to go get the
$20, but their intentions were to fight,” and Nelson told a police
officer after the shooting that the group went to fight the Priester
brothers. At trial, however, Nelson testified that they were going to
the house “to retrieve [Bedford]’s money,” and Lewis testified that
4
the “whole car” agreed that they were going to retrieve Bedford’s $20
or two grams of marijuana. There was no evidence presented that
anyone in this group had a gun.
The group arrived at Godsey’s house around 11:30 p.m., and
Bedford yelled at people inside the house about her $20. Robinson,
Nelson, and Lewis got out of the car.5 Lewis walked around the
house, and Nelson went to the front door. Nelson testified that he
“calmly” “knocked on the door three times” using a “normal knock,”
and Lewis testified that Nelson used a “simple knock” and was “very
calm.” Sullivan, on the other hand, testified that when the group
arrived, “they got out the car and started beating on the door, like
bring your b**ch a** outside,” and they continued to “beat on the
door” for five to ten minutes. Godsey similarly testified that Nelson
knocked “very loudly” on the door, was “in a bit of a rage” and “very
hostile,” and told the Priester brothers to “get the ‘F’ out here now.”
Godsey testified that he answered the door and told Nelson to
5 Sullivan, who was in the house, testified that the group that drove up
was “3 cars deep full of people.” However, Nelson, Bedford, Starks, and Lewis
testified that they all arrived in one car.
5
leave or he would “call the authority.” Godsey then went back in the
house and closed and locked the door. Nelson testified that he
walked away from the house and stood in the street for two or three
minutes, waiting for someone to come out of the house. Starks
testified that Robinson, Nelson, and Lewis were “walking back to
[her] car” and “arguing with Josh and [Priester].” Then, someone
fired a gun three to five times from one of the upstairs windows in
the house. Robinson was hit once in the chest, Nelson was hit once
in the leg, and the car that Bedford and Starks were in was hit twice,
with one bullet going through the bumper and one bullet grazing the
trunk.6 Robinson died from his injury, and Nelson testified that he
had a scar and permanent nerve damage in his leg and that the
injury “kind of affects the way I walk at times.”
Nelson testified that when the shooter in the window was
illuminated by the flash of the gun, he “saw a white shirt.” Lewis
6 Witnesses testified that they heard three or four shots.
Priester said in
his police interview that he heard five shots. Two bullets were recovered: one
from Robinson’s body and one in the street.
6
similarly testified that when he saw someone “raise the window,” he
saw a “white shirt” that looked like the white shirt he had seen
Priester wearing at the football game.7 Surveillance video from the
entrance to the football game showed someone—who was identified
as Priester by Nelson at trial—entering and leaving the football
game earlier that evening wearing a white shirt.8 Godsey testified
that Priester was wearing a white shirt and Josh was wearing a
black shirt that night.
Six days after the shooting, Sullivan wrote in a statement to
police that after Robinson and Nelson “tried to lure” the Priester
brothers outside Godsey’s house, Priester “opened a window and
shot at the crowd.”9 Godsey testified that after the shots were fired,
7 On cross-examination at trial, Lewis acknowledged that he had not
mentioned the white shirt in his statement to police.
8 Priester was walking with two other people, who were wearing black
shirts.
9 At trial, Sullivan testified that he heard the gunshots but did not know
where they came from. He further testified that he did not remember writing
that he saw Priester shoot out of the window, that his statement was
“fabricated,” and the officer taking his statement was “basically giving [him]
information to write down.”
7
he looked for “a slight second” in the room the shots came from, and
“thought” he saw the Priester brothers on the floor “covering their
heads.” However, the Priester brothers were not in the room when
he returned to it soon after, and he then found them in the
basement, lying on the ground “with their hands over their heads,
scared, saying they were going to die. They’re trying to kill us.”
On the night of the shooting, Priester was interviewed by Chief
Bill Gorman, the lead detective on the case, and another officer from
the Dallas Police Department. A video recording of the interview
was played for the jury. Priester, who was wearing a white shirt,
admitted that he was at Godsey’s house at the time of the shooting,
but said that he “wasn’t in the room when it was happening,” that
he ducked down when the shots were fired, and that “Brandon
Glenn,” who was wearing a red shirt, was the shooter. Priester said
that he did not know Glenn, but Glenn had approached his group at
the football game and gone back to Godsey’s house with them.
Priester “d[id]n’t know” why Glenn shot at Robinson’s group.
Priester said that Glenn was 17 years old and attended Hiram High
8
School. A Dallas police officer testified that no one with that name
could be found as ever having attended that school or any other
school in the county.
Priester did not testify at trial. His defense was that he was
not the shooter and he did not identify the real shooter because he
was protecting that person. Priester also emphasized in closing
argument the ongoing dispute between the two groups and the
evidence showing that Robinson’s group came to Godsey’s house to
fight. Priester was convicted of malice murder, aggravated battery,
three counts of aggravated assault, and possession of a firearm
during the commission of a felony.
2. Priester challenges the sufficiency of the evidence
supporting his convictions in several ways.
(a) He argues that the evidence presented at trial was not
sufficient to support his convictions as a matter of constitutional due
process. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61
LE2d 560) (1979). “In evaluating the sufficiency of the evidence as
a matter of constitutional due process, we view all of the evidence
9
presented at trial in the light most favorable to the verdict and ask
whether any rational juror could have found the defendant guilty
beyond a reasonable doubt of the crime of which he was convicted.”
Perez v. State, 316 Ga. 433, 437 (888 SE2d 526) (2023). See also
Jackson, 443 U.S. at 319.
As discussed above, the evidence presented at trial included
undisputed evidence that Priester was at Godsey’s house. Sullivan
told police that he saw Priester open the window and shoot into the
crowd. Two other witnesses testified that the person in the window
from where the shots came was wearing a white shirt, and video
from the football game and testimony showed that Priester was
wearing a white shirt that night. People from Robinson’s group
testified that they were outside walking away from the house when
shots were fired, and there was no evidence that any of them had a
weapon. Thus, the evidence presented at trial, when viewed in the
light most favorable to the convictions, was sufficient to support
Priester’s convictions. See Bullard v. State, 307 Ga. 482, 483 (837
SE2d 348) (2019) (holding that the evidence was sufficient to
10
support Bullard’s convictions for murder and other crimes where
two witnesses told police that they saw Bullard shoot at the victim,
although they recanted at trial); Jackson v. State, 315 Ga. 543, 551
(883 SE2d 815) (2023) (holding that the evidence was sufficient for
the jury to reject Jackson’s claim of self-defense when the victim was
“not within close range” of Jackson and was “walking back toward
his car”).
(b) Priester further argues that the trial court erred by denying
his motion for a directed verdict as to the charge of aggravated
battery against Nelson. In considering this claim, we apply the
same standard used to determine if the evidence is constitutionally
sufficient. See Lumpkin v. State, 310 Ga. 139, 144 n.4 (849 SE2d
175) (2020). “A person commits the offense of aggravated battery
when he or she maliciously causes bodily harm to another by
depriving him or her of a member of his or her body, by rendering a
member of his or her body useless, or by seriously disfiguring his or
her body or a member thereof.” OCGA § 16-5-24 (a).
Priester argues that the evidence supporting the aggravated
11
battery conviction was not sufficient because there was no “medical
testimony” about Nelson’s wound and Chief Gorman testified that
Nelson suffered a “minor gunshot injury.”10 However, Nelson
testified that his leg was scarred, he suffered permanent nerve
damage, and the injury “kind of affects the way [he] walk[s] at
times.” This alone was sufficient evidence to support Priester’s
conviction for aggravated battery. See Jimmerson v. State, 289 Ga.
364, 366 (711 SE2d 660) (2011) (“The evidence regarding Colbert’s
rehabilitation and his ongoing gait impairment was sufficient to
allow the jury to conclude that Colbert’s legs were rendered
useless.”). See also OCGA § 24-14-8 (“The testimony of a single
witness is generally sufficient to establish a fact.”). And the
resolution of any discrepancies between Nelson’s testimony and
Chief Gorman’s testimony was up to the jury. See Perez v. State,
316 Ga. 433, 437 (888 SE2d 526) (2023) (“We leave to the jury the
resolution of conflicts or inconsistencies in the evidence, credibility
10 Chief Gorman testified that on the night of the shooting, he went to
the hospital to speak to Nelson and observed that Nelson “had a minor gunshot
injury to the back of his left calf up near the knee.”
12
of witnesses, and reasonable inferences to be derived from the
facts.”) (citation and punctuation omitted).
(c) Priester contends that the evidence did not support his
convictions under OCGA § 24-14-6, which says: “To warrant a
conviction on circumstantial evidence, the proved facts 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.”
“However, this doctrine applies only where the State’s case against
the defendant was wholly circumstantial.” Jackson v. State, 310 Ga.
224, 228 (850 SE2d 131) (2020) (citation and punctuation omitted).
Here, the State did not rely solely on circumstantial evidence.
The State presented direct evidence of Priester’s guilt in the form of
Sullivan’s written statement that Priester “shot at the crowd.” See
Willis v. State, 315 Ga. 19, 24 (880 SE2d 158) (2022) (explaining that
eyewitness testimony identifying the shooter is direct evidence of
guilt). This is true even though Sullivan recanted his statement at
trial. See Jackson, 310 Ga. at 228 (“[D]irect evidence is not
converted into circumstantial evidence by a witness’ lack of
13
credibility.”). Thus, Priester’s statutory challenge to the sufficiency
of the evidence fails.
3. Priester next argues that the trial court should have granted
him a new trial because the verdicts were “contrary to the law and
evidence” and “to the principles of justice, fairness, and equity.” This
argument implicates the “general grounds” for obtaining a new trial
under OCGA §§ 5-5-20 & 5-5-21.11
When these so-called “general grounds” are properly
raised in a timely motion for new trial, the trial judge
must exercise a broad discretion to sit as a ‘thirteenth
juror. . . . [T]he merits of the trial court’s decision on the
general grounds are not subject to our review, and the
decision to grant a new trial on the general grounds is
vested solely in the trial court.
King v. State, 316 Ga. 611, 616 (889 SE2d 851) (2023) (citations and
punctuation omitted).
To the extent Priester argues the trial court failed to exercise
11 OCGA § 5-5-20 says: “In any case when the verdict of a jury is found
contrary to evidence and the principles of justice and equity, the judge
presiding may grant a new trial before another jury.” OCGA § 5-5-21 says:
“The presiding judge may exercise a sound discretion in granting or refusing
new trials in cases where the verdict may be decidedly and strongly against
the weight of the evidence even though there may appear to be some slight
evidence in favor of the finding.”
14
its discretion as the thirteenth juror, we disagree. In its order
denying Priester’s motion for new trial, the court set forth the
general grounds standards and expressly stated that it “has
considered but declines to grant a new trial under the forgoing
general grounds.”12 Thus, this claim fails. See King, 316 Ga. at 616.
To the extent this claim can be construed as a challenge to the
sufficiency of the evidence supporting Priester’s convictions, this
claim fails for the reasons discussed in Division 2 above.13
4. Priester complains that the trial court did not give the jury
instructions he requested related to justification and perjury.
12 As part of this enumeration of error, Priester asserts that the trial
court should have considered a number of points in ruling on this claim,
including allegedly false testimony and allegedly improper closing argument.
The trial court expressly considered these points in rejecting Priester’s
thirteenth juror claim.
13 We note that although we have often reviewed the sufficiency of the
evidence as a matter of constitutional due process when an appellant raises a
general grounds claim on appeal, many of us have begun to question that
approach. See King, 316 Ga. at 616 n.8 (“[M]any of us question whether it is
proper for this Court to import Jackson into an appellate review of the general
grounds (or to otherwise rely on Jackson as part of that analysis).”) However,
like in King, we need not determine the propriety of that practice today,
because the evidence against Priester was constitutionally sufficient to affirm
his convictions.
15
Because Priester failed to raise these objections after the jury was
charged, we review Priester’s claims only for plain error. See OCGA
§ 17-8-58. See also Reese v. State, ___ Ga. ___, 2023 WL 5338589, at
*5 (Aug. 21, 2023).
To succeed on his claims, Priester must prove that all four
prongs of the plain error test are met.
First, there must be an error or defect—some sort of
deviation from a legal rule—that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and
finally, if the above three prongs are satisfied, the
appellate court has the discretion to remedy the error—
discretion which ought to be exercised only if the error
seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.
Id. (citations and punctuation omitted). “To authorize a requested
jury instruction, there need only be slight evidence to support the
theory of the charge.” Collins v. State, 308 Ga. 515, 519 (842 SE2d
275) (2020) (citation and punctuation omitted).
16
(a) Priester first argues that the trial court should have
instructed the jury on justification, self-defense, “stand your
ground,” and defense of habitation. See OCGA § 16-3-21 (a) (“A
person is justified in . . . using force against another when . . .
necessary to defend himself or herself or a third person”)14; OCGA
§ 16-3-23.1 (providing that a person who used force “in defense of
self or others” or “in defense of a habitation . . . has no duty to retreat
and has the right to stand his or her ground”)15; OCGA § 16-3-23 (“A
14 OCGA § 16-3-21 (a) says in full:
A person is justified in threatening or using force against another
when and to the extent that he or she reasonably believes that such
threat or force is necessary to defend himself or herself or a third
person against such other’s imminent use of unlawful force;
however, except as provided in Code Section 16-3-23, a person is
justified in using force which is intended or likely to cause death
or great bodily harm only if he or she reasonably believes that such
force is necessary to prevent death or great bodily injury to himself
or herself or a third person or to prevent the commission of a
forcible felony.
15 OCGA § 16-3-23.1 says in full:
A person who uses threats or force in accordance with Code Section
16-3-21, relating to the use of force in defense of self or others, Code
Section 16-3-23, relating to the use of force in defense of a
habitation, or Code Section 16-3-24, relating to the use of force in
defense of property other than a habitation, has no duty to retreat
and has the right to stand his or her ground and use force as
provided in said Code sections, including deadly force.
17
person is justified in . . . using force against another when . . .
necessary to prevent or terminate such other’s unlawful entry into
or attack upon a habitation”).16 Priester argues that, whoever the
shooter was, there was evidence that the shooter’s actions were
justified because Robinson’s group came to the house to fight and
created a “threatening environment” to make it clear that Priester
and his friends were not safe in their own home.
16 OCGA § 16-3-23 says in full:
A person is justified in threatening or using force against
another when and to the extent that he or she reasonably believes
that such threat or force is necessary to prevent or terminate such
other’s unlawful entry into or attack upon a habitation; however,
such person is justified in the use of force which is intended or
likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and
tumultuous manner and he or she reasonably believes that the
entry is attempted or made for the purpose of assaulting or offering
personal violence to any person dwelling or being therein and that
such force is necessary to prevent the assault or offer of personal
violence;
(2) That force is used against another person who is not a
member of the family or household and who unlawfully and
forcibly enters or has unlawfully and forcibly entered the residence
and the person using such force knew or had reason to believe that
an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the
entry is made or attempted for the purpose of committing a felony
therein and that such force is necessary to prevent the commission
of the felony.
18
Even assuming for purposes of argument that there was slight
evidence of justification and the trial court committed a clear and
obvious error by declining to give the requested justification-related
instructions, Priester has failed to show that the lack of these
instructions affected the outcome of his trial. Even crediting
accounts from Sullivan and Godsey that Robinson’s group was
highly aggressive when it arrived, there was no evidence that
anyone in the group had a weapon or was attacking the house when
the shots were fired. On the contrary, the evidence indicated that
the victims were standing in the street when shots were fired at
them. Moreover, in his interview with police after the shooting,
Priester identified Glenn (whose identity could not be corroborated
and who could not be found) as the shooter but never said Glenn was
acting in defense of himself, others, or the house. In light of this
evidence, the jury was unlikely to believe that shooting at the crowd
outside was “necessary to prevent death or great bodily injury,”
OCGA § 16-3-21, or “to prevent or terminate . . . unlawful entry into
or attack” on the house, OCGA § 16-3-23. Thus, Priester has failed
19
to show that any error in the trial court’s failure to give the
requested instructions affected his substantial rights. See Reese,
2023 WL 5338589, at *6 (“Because the evidence supporting Reese’s
self-defense theory was weak, we cannot say that the trial court
omitting jury instructions on justification likely affected the trial’s
outcome.”).
(b) Priester also argues that the trial court erred when it
declined to instruct the jury on perjury, because Nelson, Starks,
Sullivan, Bedford, and Lewis provided certain testimony at trial
that was inconsistent with statements those witnesses gave to law
enforcement before trial. Notably, however, Priester does not
specify which of the statements—the unsworn ones the witnesses
named above gave to law enforcement before trial or the testimony
offered at trial under oath—he believes were false.
(i) At trial, Priester requested that the court instruct the
jury:
[Y]ou can not base a conviction upon perjured testimony.
A witness gives perjured testimony when his or her
testimony at trial materially contradicts the statement
20
that he or she made to a police officer. Whether a witness
has given perjured testimony is [a] matter for you to
decide.
Priester has failed to show that the trial court committed a clear or
obvious error by declining to give the requested instruction.
“A requested ‘jury instruction must be adjusted to the evidence
and embody a correct, applicable, and complete statement of law.’”
Tepanca v. State, 297 Ga. 47, 49 (771 SE2d 879) (2015) (citation
omitted). At the time of Priester’s trial, OCGA § 16-10-70 (a) defined
perjury in this way: “A person to whom a lawful oath or affirmation
has been administered commits the offense of perjury when, in a
judicial proceeding, he knowingly and willfully makes a false
statement material to the issue or point in question.”17 Priester’s
requested instruction on perjury—which did not match this
definition—was not a correct statement of law. Thus, the trial court
did not err, let alone clearly or obviously err, by declining to instruct
the jury with an incorrect statement of law. See Alexis v. State, 273
17 The statute was amended in 2023 to address unsworn declarations
made under the penalty of perjury. See Ga. L. 2023, Act 59, § 2.
21
Ga. 423, 426 (541 SE2d 636) (2001) (holding that the trial court was
not required to give the requested charge because it “was not a
correct statement of law”).
(ii) To the extent Priester is now arguing that the trial
court committed plain error by failing to give the pattern jury
instruction on perjury, which he cites in his brief, he has again failed
to show error, let alone clear or obvious error. Priester argues that
a charge on perjury was warranted to address the discrepancies
between trial testimony and statements given to law enforcement by
Nelson, Starks, Sullivan, Bedford, and Lewis. However, as noted
above, Priester does not specify whether his contention is that the
unsworn statements to police were false or that the sworn trial
testimony was false. And he has pointed to no cases, nor have we
found any, holding that a perjury instruction should be given under
these circumstances. Moreover, the trial court instructed the jurors
that it was their duty to “determine the credibility of the witnesses,”
and explained:
Your assessment of a trial witness’s credibility may be
22
affected by comparing or contrasting that testimony to
statements or testimony of that same witness before the
trial started. It is for you to decide whether there is a
reasonable explanation for any inconsistency in a
witness’s pretrial statements and testimony when
compared to the same witness’s trial testimony. As with
all issues of witness credibility, you the jury must apply
your common sense and reason to decide what testimony
you believe or do not believe.
Thus, to the extent that Priester is arguing that an instruction on
perjury is required to highlight inconsistencies between the pre-trial
statements and trial testimony, the instructions as given covered
that concept. See Wilson v. State, 315 Ga. 728, 737 (883 SE2d 802)
(2023) (“We see no error [in the court’s failure to give the requested
instruction] because the points of law in Wilson’s requested
instruction were covered in the court’s other instructions.”).
5. Priester argues that his trial counsel provided ineffective
assistance in multiple ways. To prevail on these claims, Priester
must show that his lawyer’s performance was constitutionally
deficient and that he suffered prejudice as a result. See Strickland
v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674)
(1984). See also Clark v. State, 315 Ga. 423, 442 (883 SE2d 317)
23
(2023). To prove deficient performance, Priester must demonstrate
that his counsel “performed at trial in an objectively unreasonable
way considering all the circumstances and in the light of prevailing
professional norms.” Clark, 315 Ga. at 442 (citation and
punctuation omitted). To establish prejudice, Priester must show a
reasonable probability that, “but for counsel’s deficient performance,
the result of the trial would have been different.” Id. We need not
address both components of this test if Priester makes an
insufficient showing on one. See id. See also Strickland, 466 U.S. at
697.
(a) Priester argues that his trial counsel provided ineffective
assistance by failing to object after the trial court refused to give the
justification-related instructions discussed in Division 4 (a) above.
Even assuming that counsel was deficient in this respect, for the
reasons discussed in Division 4 (a), Priester has failed to show that
there is a reasonable probability he would have achieved a different
result at trial if counsel had objected. See Clark, 315 Ga. at 442
(“[T]he test for prejudice in the ineffective assistance analysis is
24
equivalent to the test for harm in plain error review.”) (citation and
punctuation omitted). See also Hood v. State, 303 Ga. 420, 427 (811
SE2d 392) (2018) (“We need not decide whether trial counsel’s
failure to preserve Appellant’s claims of instructional error
amounted to deficient performance, because . . . Appellant has not
shown a reasonable probability that his trial would have ended more
favorably for him had his counsel preserved his claims of
instructional error.”).
Priester also argues that counsel provided ineffective
assistance by failing to object to the court’s failure to instruct the
jury on perjury. This claim fails for the reasons discussed in
Division 4 (b). Because the trial court did not err by declining to give
the requested instruction, counsel was not deficient in failing to
object to the lack of that instruction. See King, 316 Ga. at 625
(“[F]ailing to make a meritless objection is not constitutionally
deficient.”).
(b) Priester argues that counsel provided ineffective assistance
by failing to object to Chief Gorman’s testimony that—according to
25
Priester—violated the Due Process Clause of the Fourteenth
Amendment of the United States Constitution by commenting on
Prieter’s “post-Miranda silence.” At trial, before Priester’s interview
was played for the jury, Chief Gorman explained that Priester was
read his rights under Miranda,18 agreed to answer questions without
an attorney, and never invoked his right to remain silent. Then the
following exchange occurred:
PROSECUTOR: Did the Defendant ever refuse to answer
any further questions throughout the course of the
interview?
GORMAN: No. He was very cooperative.
PROSECUTOR: Is the time that you are referring to the
only time the Defendant was interviewed by you or in
your presence?
GORMAN: Yes. After the interview I never spoke to him
again.
At the motion-for-new-trial hearing, trial counsel explained that he
did not object to this testimony because counsel did not see this
statement as implicating Priester’s right to remain silent, although
he noted, “[i]n hindsight, I can see the implication.”
18 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
26
However, when viewed in context, Chief Gorman’s testimony
was not an improper comment on Priester’s silence. He clearly
testified that Priester never invoked his right to remain silent, and
the complained-of statement was merely an explanation that the
custodial interview was the only time he talked to Priester. Thus,
Priester’s counsel was not deficient for failing to object to the
testimony. See Clark v. State, 299 Ga. 552, 554-555 (787 SE2d 212)
(2016) (“[T]he prosecutor’s comments, when viewed in their full
context, were not comments on Clark’s pre-arrest silence. . . . [H]is
trial counsel did not render ineffective assistance by failing to make
this meritless objection to the comments.”).
(c) Priester argues that his counsel provided ineffective
assistance by failing to cross-examine Godsey and not asking Godsey
if it was possible that the members of the group outside the house
were going back to their car for guns. At trial, counsel did not ask
Godsey any questions on cross-examination, and at the motion-fornew-trial hearing, counsel testified that he did not cross-examine
Godsey because the defense team had spoken with Godsey before
27
trial and “there was some reason based upon our interview with him
and his testimony that we decided that it would be best not to crossexamine him.” Godsey did not testify at the motion-for-new-trial
hearing.
“The scope of cross-examination is grounded in trial tactics and
strategy, and will rarely constitute ineffective assistance of counsel.”
Bonner v. State, 314 Ga. 472, 476 (877 SE2d 588) (2022) (citation
and punctuation omitted). Priester has not shown that his counsel’s
decision—based on counsel’s conversation with Godsey and Godsey’s
testimony—was deficient, particularly in light of Priester’s failure
to demonstrate that Godsey would have given a response helpful to
Priester if he had been asked if it was possible that Robinson’s group
was going to retrieve guns from the car. See Bonner, 314 Ga. at 476
(holding that Bonner failed to show that counsel’s performance was
deficient in failing to cross-examine several witnesses, where
counsel explained at the motion-for-new-trial hearing that he would
usually cross-examine witnesses if he “ha[d] something to cross[-]examine” them about and Bonner did not “demonstrate how cross28
examination of these witnesses would have been helpful to him”).
(d) Priester argues that counsel provided ineffective assistance
by requesting an instruction on accomplice corroboration. At trial,
Priester’s counsel requested an accomplice corroboration
instruction, arguing that Sullivan, who was in the house with
Priester, “c[ould] be an accomplice, because he could be the shooter.”
The trial court agreed to give the requested instruction. In closing
argument, trial counsel reminded the jury that the State gave
Sullivan, whom counsel described as “the only eyewitness,” use
immunity for his testimony. Counsel argued: “one of the other
things that the Judge is going to tell you about Mr. Sullivan is about
an accomplice” and explained that an accomplice’s testimony “must
be supported by . . . some other evidence.” Later in his argument,
counsel said, “Remember Makaylen Sullivan is an accomplice and
you can’t take the word of an accomplice on its own without some
other supporting evidence.”
“Decisions on requests to charge involve trial tactics to which
we must afford substantial latitude, and they provide no grounds for
29
reversal unless such tactical decisions are so patently unreasonable
that no competent attorney would have chosen them.” Moulder v.
State, ___ Ga. ___, 2023 WL 5338774, at *9 (Aug. 21, 2023). It was
not patently unreasonable for Priester’s counsel to request an
instruction explaining the need for corroboration of accomplice
testimony in support of the argument that the jury should not credit
Sullivan’s account of the shooting, which included identifying
Priester as the shooter. See id. (holding that counsel’s performance
was not deficient where he reasonably requested a specific jury
instruction in support of an argument he made in closing attempting
to undermine the thoroughness of the State’s investigation). Thus,
Priester has failed to show that his counsel’s performance was
deficient.
(e) Priester argues that counsel provided ineffective assistance
by failing to file a motion for immunity from prosecution under
OCGA § 16-3-24.2.19 At the motion-for-new-trial hearing, counsel
19 OCGA § 16-3-24.2 says: “A person who uses threats or force in
accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be
30
testified that he did not file a pre-trial motion for immunity because
the defense team did not feel “comfort” in Priester testifying.
Priester has not shown that this was unreasonable trial strategy,
particularly in light of the weakness of his self-defense argument
discussed in Division 4 above. See Tabor v. State, 315 Ga. 240, 249
(882 SE2d 329) (2022) (“It may be reasonable for trial counsel to
forgo a pre-trial immunity motion so as to avoid subjecting his client
to pre-trial cross-examination, or for counsel to elect to demonstrate
self-defense to the jury, rather than to the judge.”) (citation and
punctuation omitted).
(f) Finally, Priester argues that trial counsel provided
ineffective assistance by failing to object to narrative testimony, to
“asked and answered” testimony, and to the prosecutor “testifying”
by repeating testimony given by a witness or asking leading
questions. At the motion-for-new-trial hearing, trial counsel
testified that deciding whether to raise these kinds of objections was
immune from criminal prosecution therefor unless in the use of deadly force,
such person utilizes a weapon the carrying or possession of which is unlawful
by such person under Part 2 of Article 4 of Chapter 11 of this title.”
31
an “on the spot” or “instinctive” decision that he made, considering
factors such as whether the testimony was prejudicial and whether
objecting would be “disruptive” or “rub the jury the wrong way.”
In raising this claim, Priester does not specifically discuss any
of the allegedly improper questions or answers. Instead, he has
included a string cite of transcript pages and argues generally that
every instance of narrative testimony, “asked and answered”
testimony, and the prosecutor “testifying” was prejudicial to him.
These string cites—which fail to highlight any question or answer
that was particularly prejudicial to Priester—do not suffice to show
that counsel made a patently unreasonable decision by choosing not
to object to each instance of allegedly objectionable questions or
answers and choosing instead to consider factors such as the
potential prejudice from the testimony or potential disruption from
the objection. Thus, Priester has failed to demonstrate that
counsel’s performance was deficient. See Moulder, S23A0508, 2023
WL 5338774, at *6 (“[R]easonable decisions as to whether to raise a
specific objection are ordinarily matters of trial strategy and provide
32
no ground for reversal.”) (citation and punctuation omitted).20
Judgment affirmed. All the Justices concur.
20 Citing State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020), Priester argues
that all of the claims he has raised resulted in cumulative prejudice affecting
the outcome of his trial. Even assuming that this cumulative error analysis
applies to a trial court’s failure to give specific jury instructions, Priester’s
claim fails. See Park v. State, 314 Ga. 733, 745 (879 SE2d 400) (2022)
(assuming without deciding that two instances of counsel’s deficient
performance should be considered cumulatively with an assumed trial court
error for failing to give a jury instruction). We have assumed only one trial
court error—the failure to give justification-related instructions—and only one
deficiency by trial counsel—the failure to object to the lack of these
instructions. Because the harm from this assumed error and assumed
deficiency is the same—the jury was not given the requested instruction—and
we have concluded that the lack of these instructions did not likely affect the
outcome of the trial, Priester’s cumulative error claim fails. See Harris v.
State, 313 Ga. 872, 885 n.11 (874 SE2d 73) (2022) (“Of the claims of trial court
error at trial that he raises, we conclude that only one of those has any possible merit, and any error was harmless. That possible error involves the same
evidence—text messages—as to which we pretermitted the issue of deficient
performance in our prior opinion in this case. Thus, there is nothing to
consider cumulatively with the harm from the text messages, and this claim
fails.”).
33