Palmer v. State ( 2021 )

In the Supreme Court of Georgia
Decided: January 11, 2021
S20A1118. PALMER v. THE STATE.
BOGGS, Justice.
After a 2017 jury trial, Kevin Palmer was acquitted of malice
murder but found guilty of felony murder and other offenses in
connection with the shooting death of William Whitsett. His
amended motion for new trial was denied, and he appeals, asserting
as error the denial of his motion to suppress, the exclusion of alleged
alibi testimony, and the ineffective assistance of his trial counsel.
Concluding that there is no reversible error, we affirm. 1
1 The shooting occurred sometime between December 18, 2014, when
Whitsett was last seen alive, and December 23, 2014, when his body was
discovered. On February 4, 2015, a Chatham County grand jury indicted
Palmer, Bradley Bates, and Genevieve Elizabeth Meeks for malice murder and
other charges. Palmer’s case was severed for trial, and he was indicted alone
on January 25, 2017, for malice murder, felony murder, aggravated assault,
possession of a firearm during commission of a felony, concealing the death of
another, possession of marijuana with intent to distribute, possession of more
than one ounce of marijuana, and possession of a controlled substance. Palmer
1. Construed in the light most favorable to the jury’s verdicts,
the evidence showed that in December 2014, Palmer lived at an
apartment complex in Savannah with his girlfriend, Genevieve
Meeks. He worked in her family’s seafood restaurant, but he also
sold marijuana and acted as a middleman for shipments of the drug
to local dealers. On or about December 13, 2014, Whitsett, a friend
of Palmer’s from North Carolina, arrived in town and stayed at
Palmer’s apartment. Palmer initially told Meeks that Whitsett was
just stopping by on his way to Florida, but he later told her that
Whitsett would be staying for a while and was ordering marijuana
was tried before a jury from February 6 to 10, 2017 and found not guilty of
malice murder but guilty of all remaining charges. On February 21, 2017,
Palmer was sentenced to serve life in prison with the possibility of parole for
felony murder, plus five years to serve consecutively for firearms possession,
ten years to serve consecutively for concealing the death of another, ten years
to serve consecutively for possession of marijuana with intent to distribute,
and ten years to serve concurrently for possession of a controlled substance, for
a total of life in prison plus 25 years. The trial court merged the aggravated
assault count into the felony murder count and the count charging possession
of more than one ounce of marijuana into the possession with intent to
distribute count. On March 6, 2017, Palmer’s trial counsel filed a motion for
new trial, which was amended by appellate counsel on January 26, 2018 and
August 12, 2019. After a hearing on August 29, 2019, the motion was denied
on January 30, 2020. Palmer’s notice of appeal was filed on February 6, 2020,
and the case was docketed in this Court for the August 2020 term and
submitted for decision on the briefs.
2
to be delivered to the apartment for Palmer to sell. Whitsett
purchased a Smart TV and a PlayStation and set them up in the
apartment.
On the morning of Thursday, December 18, Meeks saw
Whitsett for the last time. Palmer dropped Meeks off at the
restaurant and left in her car. He brought the car back to the
restaurant around 6:30 that evening, then left to play soccer with
friends at the “Y.” After leaving work at 8:00 p.m., Meeks picked
Palmer up after the soccer game and they drove home, but Whitsett
was not there. When Whitsett had still not appeared by Friday
morning, Meeks expressed concern. Palmer took their dogs outside
and returned to tell Meeks that he had found notes from Whitsett
saying that he had left for Florida and that Palmer could keep all
his belongings, including his car. When Meeks asked how they could
use the car without the keys, Palmer within “a second or two” located
the keys in a wheel well of the car. Palmer also took a shotgun out
of the car and brought it into the apartment.
Later that day, Palmer told Meeks he had a phone call from
3
Whitsett, but refused to let her speak with him. He also took a “long
break” from work, during which he did not answer his phone. He
later told Meeks that he did not answer the phone because he took
their dogs on a long walk, they got muddy, and he had to bathe them.
On Friday and Saturday, packaged marijuana arrived at the
apartment, and Palmer immediately began selling it, telling Meeks
that Whitsett had agreed to let him keep some of the marijuana in
return for letting Whitsett stay at their apartment and for receiving
the marijuana at their address.
On Tuesday, December 23, a telephone lineman discovered
Whitsett’s body in an overgrown wooded area at the foot of a railway
embankment and below an elevated highway bridge, but accessible
by a trail leading from behind Palmer’s apartment building to the
railroad tracks, a distance of approximately a hundred yards.
Whitsett was lying in a ditch and partially concealed by a stone wall,
part of a tire, and other debris. A shirt and sweatshirt were pulled
up over his head, and he was shoeless but wearing socks. The police
initially believed that Whitsett might have been hit by a train, and
4
the case was referred to the medical examiner as a victim of
“suspected trauma.” Upon receiving the body, however, the medical
examiner immediately saw that Whitsett had multiple gunshot
wounds. An autopsy, performed the following Friday on account of
the Christmas holiday, revealed that Whitsett had four gunshot
wounds to his face and head and a defensive gunshot wound to his
arm, all from .22 caliber bullets, four of which were recovered from
the body. Marks on Whitsett’s chin, neck, and torso indicated that
his body had been dragged along the ground by his feet. Due to lack
of knowledge of the environmental conditions at the scene, the
medical examiner was unable to establish a time of death.
Police officers canvassed the nearby area for possible
witnesses, without success. The next day, after identifying Whitsett
from his fingerprints, they located his car parked next to the
building in which Palmer’s apartment was located, and learned from
Palmer’s neighbor, Bradley Bates, that Whitsett had been staying
with Palmer and Meeks. Palmer was interviewed by the police on
Wednesday, December 24, and told them that Whitsett came to town
5
on December 22 and that he had brought all the marijuana in the
apartment with him. Palmer said that the shotgun was his and that
he had purchased it when he worked in a particular pawn shop in
Alma, Georgia. 2 He also told the police about the handwritten notes
in which Whitsett said Palmer could have all Whitsett’s personal
items, but a forensic document examiner testified at trial that the
notes were actually written by Palmer.
Palmer told the police investigators multiple conflicting stories
regarding Whitsett’s death: that the murder was probably gang
related, that Whitsett was a bad person and a racist, that he “was
always getting into trouble” because “he didn’t care what he said,”
and that he had left “to go do some type of deal or something.” While
alone but observed in the interview room, Palmer called his mother
and told her that he was the last person to see the victim alive. He
also called Meeks and told her that the only thing he was worried
about was his .22-caliber pistol, even though the police had not yet
2 The pawn shop owner testified at trial that, while Palmer was a school
friend of the owner’s son, Palmer had never worked for him and he never sold
Palmer a shotgun.
6
made public the fact that Whitsett was shot with a .22-caliber
firearm. After speaking with Meeks, Palmer also changed his story
about Whitsett’s disappearance, telling the police that he “walked”
Whitsett to a local grocery store to purchase cocaine from some
unknown individuals. Palmer also told the police that he had a .22
pistol in a kitchen cabinet.
Later the same day, December 24, the police executed a search
warrant for Palmer’s apartment and Meeks’ vehicle. They found a
.22-caliber pistol, the box for the pistol, and a jar of marijuana in a
cabinet in Palmer’s kitchen. A forensics expert testified that three of
the four bullets recovered from Whitsett’s body were fired from that
pistol; the fourth was too damaged for a comparison to be made.
Whitsett’s shotgun, PlayStation, and television, as well as his Louis
Vuitton suitcase containing marijuana, were found in Palmer’s
apartment, along with marijuana oil and $900 in cash. A search of
Meeks’ Camaro revealed a small handgun belonging to Whitsett in
a bag in the car’s trunk, as well as a note reading “It’s all Kevin’s.”
After Palmer’s arrest, he was in the jail’s common area when a
7
television news story came on about Whitsett’s murder. He told
another inmate that he and his girlfriend were going to “beat the
case” because “they didn’t have no evidence on him,” that the murder
was a result of robbing a man for “a large amount of marijuana,” and
that they were going to sell the marijuana out of the seafood
restaurant where his girlfriend worked.
Palmer has not challenged the sufficiency of the evidence to
support his convictions. However, under this Court’s practice in
murder cases, we have reviewed the record to determine the legal
sufficiency of the evidence supporting his convictions. 3 We conclude
that the evidence presented at trial and summarized above was
sufficient to enable a rational trier of fact to conclude beyond a
reasonable doubt that Palmer was guilty of the crimes for which he
was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979).
3 We remind litigants that the Court will end our practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, 309 Ga.
385, 399 (4) (b) (846 SE2d 83) (2020). The Court began assigning cases to the
December term on August 3, 2020.
8
2. In Palmer’s first enumeration of error, he contends that the
trial court erred in denying his motion to suppress the evidence
seized as a result of the search warrant obtained for his apartment,
asserting that the warrant was issued without probable cause,
contained an intentionally or recklessly false statement in violation
of Franks v. Delaware, 438 U. S. 154 (98 SCt 2674, 57 LE2d 667)
(1978), and was also an impermissible general warrant. We
disagree.
(a) Palmer contends that the search warrant was issued
without probable cause under Illinois v. Gates, 462 U. S. 213, 239
(III) (103 SCt 2317, 76 LE2d 527) (1983). In reviewing whether
probable cause existed to support issuance of a search warrant, we
bear in mind that
the magistrate’s task is simply to make a practical,
common-sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place. The test for probable cause is not a
hypertechnical one to be employed by legal technicians,
but is based on the factual and practical considerations of
9
everyday life.
(Citations and punctuation omitted). Young v. State, 309 Ga. 529,
540 (4) (847 SE2d 347) (2020).
The trial court may then examine the issue as a first level
of review, guided by the Fourth Amendment’s strong
preference for searches conducted pursuant to a warrant,
and the principle that substantial deference must be
accorded a magistrate’s decision to issue a search warrant
based on a finding of probable cause.
(Citation and punctuation omitted.) State v. Palmer, 285 Ga. 75, 77
(673 SE2d 237) (2009). And when an appellate court reviews a
search warrant, it uses the Gates totality-of-the-circumstances
analysis
to determine if the magistrate had a substantial basis for
concluding that probable cause existed to issue the search
warrant. The Fourth Amendment requires no more. In
reviewing the trial court’s grant or denial of a motion to
suppress, we apply the well-established principles that
the trial court’s findings as to disputed facts will be
upheld unless clearly erroneous and the trial court’s
application of the law to undisputed facts is subject to de
novo review, keeping in mind that a magistrate’s decision
to issue a search warrant based on a finding of probable
cause is entitled to substantial deference by a reviewing
court.
(Citations and punctuation omitted.) Id. at 78. See also Leili v. State,
10
307 Ga. 339, 341-342 (2) (834 SE2d 847) (2019).
The affidavit in support of the application for the search
warrant recited that, after discovering Whitsett’s body at the bottom
of a railroad track and just off a small trail leading to Palmer’s
apartment complex, the police located Whitsett’s vehicle in the
parking lot next to Palmer’s apartment. A police officer asked
Bradley Bates, who was nearby, if he knew anything about the car.
Bates told them that it belonged to Whitsett, and that Bates
had been hanging out with the victim in his apartment E-
33. He stated he had not seen him in almost a week. He
advised that he knew the victim was staying with another
friend living across the hall in apartment number E-34.
He said the victim was living in apartment E-34 with
Kevin Palmer. Kevin Palmer was also found to be from
North Carolina. Kevin and the victim were friends.
The affidavit further stated that when Bates was asked if he could
call Palmer and ask him to come and speak with the officers, “[w]hile
standing in front of detectives Brad [Bates] called Kevin [Palmer]
via cell phone. He said to the person he called ‘[that he] needed to
come home, detectives wanted to talk to him about the body they
found.’ At that point no one had said anything about a body.” In
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addition, while the police waited for Palmer to arrive, the medical
examiner called to inform the police that Whitsett had been shot
three times in the head with a .22-caliber handgun. When Palmer
arrived and was asked to come down to talk to the detectives “about
his friend William,” he began crying.
Palmer argues, in effect, that the evidence presented to the
magistrate should have been construed differently. He contends, for
example, that Bates’ statement that Whitsett was “staying” or
“living” with Palmer and Meeks actually meant Whitsett was
“merely an overnight guest,” and that the spontaneous statement to
Palmer by Bates, about “the body they found” and Palmer’s lack of
surprise at that information could be explained by having heard
neighborhood gossip. Such arguments, however, ignore our
deferential standard of review and the requirement that we consider
the totality of the circumstances in determining whether the
magistrate, as a practical, common-sense matter, had a substantial
basis for concluding that probable cause existed to issue the search
warrant. See Palmer, 285 Ga. at 77-78; see also Leili, 307 Ga. at 343-
12
344 (2) (a). The trial court therefore did not err in denying Palmer’s
motion to suppress on this ground.
(b) Palmer also points to a written “detective supplemental”
report prepared by Detective Patrick Johnson and dated March 27,
2015, which contradicts the search warrant affidavit made by
Detective Chris Ross with regard to whether Bates learned about
the discovery of the body from the police before he made the phone
call to Palmer.4 For this reason, Palmer contends the affidavit
violated Franks, in which the United States Supreme Court held
that
where the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request. In the event
that at that hearing the allegation of perjury or reckless
disregard is established by the defendant by a
preponderance of the evidence, and, with the affidavit’s
false material set to one side, the affidavit’s remaining
The supplemental report states: “I then asked Mr. Bates if he heard the
4
news about the dead body discovered near the apartment complex; Mr. Bates
stated yes. This investigator then asked Mr. Bates to contact his neighbor and
to have him report back to our location so that I could speak with him.”
13
content is insufficient to establish probable cause, the
search warrant must be voided and the fruits of the
search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.
438 U. S. at 155-156. See also Carter v. State, 283 Ga. 76, 77 (2) (656
SE2d 524) (2008). Palmer contends that Detective Ross’ statement
in the affidavit was knowingly false or made with reckless disregard
for the truth.
At the hearing on Palmer’s motion to suppress, Detective Ross
testified that after Bates made the statement about “the body they
found” in the call to Palmer, Detective Ross asked each police officer
present if he or she had told Bates about the discovery of the body,
and all the officers told Detective Ross that they had not mentioned
it, including Detective Johnson, who later prepared the
supplemental report.5 The existence of a discrepancy in a lengthy
report prepared some three months after the events in question,
unsupported by testimony from the author of the report, and directly
contradicted by the affiant’s testimony at the hearing, would not
5Detective Johnson did not testify at the hearing on the motion to
suppress.
14
appear to demonstrate by a preponderance of the evidence that the
affidavit was knowingly false or made in reckless disregard of the
truth. See Stanford v. State, 272 Ga. 267, 271 (10) (528 SE2d 246)
(2000) (affidavits stated two different locations for victim’s death;
affiant acknowledged “mistake” but denied deliberately lying; this
Court noted that “[t]his slight discrepancy . . . does not suggest an
intentional or reckless falsehood on the part of the affiant.”
(Footnote omitted.)).
But even assuming, without deciding, that the existence of an
intentional or reckless falsehood could be established under Franks,
the trial court correctly concluded that “the affidavit’s remaining
content” was sufficient to establish probable cause independently of
any knowledge on Bates’ part that a body had been discovered.
Palmer and Whitsett were friends and knew each other from North
Carolina, both were living in the apartment for which the warrant
was sought, Whitsett’s car was parked next to Palmer’s apartment
building, and Whitsett’s body was found beside a trail originating at
the apartment complex. When Palmer was asked “to talk to us about
15
his friend William,” he began crying, from which an inference could
be drawn that Palmer already knew that Whitsett was dead. Based
on the totality of the circumstances absent the complained-of
statement, the magistrate still could make a common-sense
determination that Palmer had some knowledge of or connection
with Whitsett’s death, and that a fair probability existed that items
such as those enumerated on the search warrant would be found in
the apartment he shared with Whitsett. The trial court therefore did
not err in denying Palmer’s motion to suppress on this ground.
(c) Palmer also contends that the search warrant contained “a
general description with no particularity,” in violation of the Fourth
Amendment and OCGA § 17-5-21. The warrant authorized the
search and seizure of:
any fingerprints, any and all firearms, any and all
ammunition, shell casings, identification cards, receipts,
photos, hand written statements, cell phones (to include
all data contained therein), currency, and any and all
blood evidence, and DNA, which are being possessed in
Violation of Georgia Law(s): O.C.G.A. [§] 16-5-1 Murder.
In its order denying Palmer’s motion to suppress, the trial court
16
concluded that the description of the types of evidence sought in the
warrant was sufficient, because the warrant enumerated each class
of item seized from the apartment and the classes enumerated were
potentially relevant to the crime being investigated. We agree.
As this Court recently explained, the particularity
requirement must be applied with a practical margin of
flexibility, depending on the type of property to be seized,
and a description of property will be acceptable if it is as
specific as the circumstances and nature of activity under
investigation permit.
(Citations and punctuation omitted.) Rickman v. State, 309 Ga. 38,
42 (2) (842 SE2d 289) (2020); see also Leili, 307 Ga. at 344 (2) (a).
“Read in a common-sense fashion and in the context of the preceding
list of items and the residual clause,” warrants limiting items to be
seized to those relevant to enumerated crimes “have sufficient
specificity, satisfying the particularity requirement of the Fourth
Amendment.” (Citations and punctuation omitted.) Reaves v. State,
284 Ga. 181, 188 (2) (d) (664 SE2d 211) (2008). Here, the search
warrant listed classes of items that, as a practical matter, were
likely to be found relevant to the shooting death of Whitsett and the
17
removal of his body to the location where it was found. Finally, the
warrant limited the classes of items to those relevant to the crime of
murder. The trial court therefore did not err in denying Palmer’s
motion to suppress on this ground. 6
3. Palmer also contends that the trial court erred in excluding
possible alibi evidence from a person named Kyle Lynsky. As
Palmer’s trial began, the State moved to preclude Palmer from
introducing alibi evidence because he had not filed a “written notice
of the defendant’s intention to offer a defense of alibi” as required by
OCGA § 17-16-5 (a).7 During the colloquy that followed, Palmer’s
6 While the State also contends that Palmer gave police officers consent
to search his apartment, the trial court did not reach that issue, nor is it
necessary for this Court to consider it.
7 That Code section provides:
Upon written demand by the prosecuting attorney within ten days
after arraignment, or at such time as the court permits, stating the
time, date, and place at which the alleged offense was committed,
the defendant shall serve within ten days of the demand of the
prosecuting attorney or ten days prior to trial, whichever is later,
or as otherwise ordered by the court, upon the prosecuting attorney
a written notice of the defendant’s intention to offer a defense of
alibi. Such notice by the defendant shall state the specific place or
places at which the defendant claims to have been at the time of
the alleged offense and the names, addresses, dates of birth, and
telephone numbers of the witnesses, if known to the defendant,
upon whom the defendant intends to rely to establish such alibi
unless previously supplied.
18
counsel stated that he had not filed such a notice because there was
no evidence showing when Whitsett was killed. Asked by the trial
court, “Are you going to call any witnesses?” counsel responded, “Not
on an alibi issue. No, ma’am.” He added that he intended to call Kyle
Lynsky and that “[h]e was interviewed by the police after the police
interviewed my client. My client said Kyle came by to pick [him] up
at the apartment and drove [him] to the soccer game. Saw Will
[Whitsett] coming down the stairs with [him] when [they] walked
over to the China restaurant.” The trial court observed, “It sounds
like it’s in the nature of alibi to me. So don’t call that witness, not
for that purpose anyway.”
Near the beginning of the third day of the trial, the trial court
reiterated that Palmer could call Lynsky for any other purpose, but
at that point counsel revealed that the witness was not under
subpoena and, in fact, was in Portland, Oregon.8 When Palmer’s
counsel attempted to question a police detective regarding Lynsky’s
8Under questioning from the trial court, counsel claimed that he did not
subpoena Lynsky “because of the Court’s ruling.” That ruling, however, was
made during the first day of trial.
19
statement, the trial court noted that Lynsky was not available as a
witness and that there was a hearsay problem “without regard to a
ruling on the alibi issue.” Lynsky did not testify, but the transcript
of his recorded interview was proffered into evidence “[f]or record
purposes only.” 9
We need not consider the issues of the notice of alibi or the
State’s demand therefor, counsel’s disclaimer of any intent to call an
alibi witness, or the unavailability of Lynsky, because, even
assuming that the trial court erred in excluding Lynsky’s testimony,
Palmer has failed to show harm as a result of any such error.
“[I]t is fundamental that harm as well as error must be shown
for reversal.” (Citations and punctuation omitted.) O’Neal v. State,
9 In the transcript of the recorded interview, Lynsky told the police that
he, Palmer, and “a big group” of soccer players were going to carpool to their
regular Thursday game. When Lynsky arrived in the parking lot of Palmer’s
apartment with the other players, he saw Palmer “walking [Whitsett] out of
the parking lot.” Palmer said that Whitsett was “my friend from college” and
that “[h]e’s leaving,” and Lynsky thought nothing more of it. He did not notice
which way Palmer and Whitsett went; he was not even sure of the date on
which the encounter took place. Palmer drove Meeks’ car and left it at the
seafood restaurant, where he met Lynsky and the other players and rode with
them to the game. Lynsky also mentioned that, either that day or the Thursday
following, Palmer told Lynsky that Whitsett had “gone off with somebody,” and
that Palmer was worried about him.
20
288 Ga. 219, 223 (2) (702 SE2d 288) (2010). “The test for determining
nonconstitutional harmless error is whether it is highly probable
that the error did not contribute to the verdict.” (Citations,
punctuation, and footnote omitted.) Smith v. State, 299 Ga. 424, 432
(2) (d) (788 SE2d 433) (2016). See also OCGA § 24-1-103 (a) (“Error
shall not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected.”). “In
determining whether trial court error was harmless, we review the
record de novo, and we weigh the evidence as we would expect
reasonable jurors to have done so as opposed to viewing it all in the
light most favorable to the jury’s verdict.” (Citations and
punctuation omitted.) Peoples v. State, 295 Ga. 44, 55 (4) (c) (757
SE2d 646) (2014).
Viewed in this light, the trial court error, if any, was harmless.
As Palmer’s trial counsel repeatedly acknowledged, the date and
time of Whitsett’s death were unknown, and in Lynsky’s recorded
statement to the police, he was unsure of details such as where
Palmer and Whitsett went, the time, or even the date on which he
21
encountered them. In addition, the evidence of Palmer’s guilt was
strong. See Graves v. State, 303 Ga. 305, 308 (2) (812 SE2d 290)
(2018) (any error in excluding alibi testimony harmless in light of
overwhelming evidence of guilt and lack of specificity in proffered
testimony); see also Keller v. State, 308 Ga. 492, 503 (5) (842 SE2d
22) (2020) (“[I]n light of the strong evidence of [appellant’s] guilt,”
refusal to allow appellant’s expert witness testimony “harmless
error, if error at all” because highly probable that exclusion of
evidence did not contribute to verdict.) (Citations and punctuation
omitted.).
Here, Whitsett was living with Palmer, and both were involved
in selling drugs. Whitsett’s body was found in a secluded area near
the end of a path leading from Palmer’s apartment complex, shoeless
and with drag marks on his body, and with multiple head wounds
inflicted by bullets fired from Palmer’s pistol. The police found the
pistol in a kitchen cabinet in Palmer’s locked apartment, where
Palmer said it would be. Palmer purportedly took a telephone call
from Whitsett after he disappeared and wrote notes ostensibly from
22
Whitsett that left all of Whitsett’s belongings to Palmer. Palmer
then immediately began using Whitsett’s property and selling the
drugs ordered by Whitsett. He told conflicting stories to police
investigators and made damaging admissions to his girlfriend. He
also told a fellow jail inmate that he had planned the murder in
order to obtain drugs, giving details that the inmate was unlikely to
have known independently. Even assuming that the trial court
erred, and further assuming that Lynsky’s attendance could have
been secured for trial, it is highly probable that any error in not
allowing Lynsky’s vague testimony did not contribute to the jury’s
guilty verdicts, and therefore was harmless.
4. In his final enumeration of error, Palmer asserts that his
trial counsel was ineffective in failing to file a notice of alibi
testimony. To prevail on his claim of ineffective assistance, Palmer
must prove both that the performance of his lawyer was
professionally deficient and that he was prejudiced by this deficient
performance. See Strickland v. Washington, 466 U. S. 668, 687 (III)
(104 SCt 2052, 80 LE2d 674) (1984). To prove deficient performance,
23
Palmer must show that his attorney “performed at trial in an
objectively unreasonable way considering all the circumstances and
in the light of prevailing professional norms.” (Citation omitted.)
Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). And to
prove prejudice, Palmer “must show that there is a reasonable
probability 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 (III) (B). If an appellant fails
to show either deficiency or prejudice, this Court need not examine
the other prong of the Strickland test. See Palmer v. State, 303 Ga.
810, 816 (IV) (814 SE2d 718) (2018).
Here, Palmer has failed to demonstrate prejudice, because at
the hearing on Palmer’s motion for new trial, he never presented
Lynsky’s testimony or a legally acceptable substitute, as required to
demonstrate prejudice in the context of ineffective assistance of
counsel. See Roberts v. State, 305 Ga. 257, 266-267 (5) (c) (824 SE2d
326) (2019). And “unsworn statements to police are not a legally
24
acceptable substitute for witness testimony needed to prove
prejudice.” (Citation omitted.) Harris v. State, 304 Ga. 652, 656 (2)
(b) (821 SE2d 346) (2018). See also Lupoe v. State, 284 Ga. 576, 578-
579 (3) (b) (669 SE2d 133) (2008) (appellant failed to demonstrate
ineffective assistance when alleged alibi witness did not testify at
hearing on motion for new trial and appellant provided no legally
acceptable substitute to show testimony would have been favorable).
Moreover, as noted above, the evidence of Palmer’s guilt was strong.
Palmer therefore has failed to show ineffective assistance on the
part of his trial counsel.
Judgment affirmed. Melton, C.J., Nahmias, P.J., and Peterson,
Warren, Bethel, Ellington, and McMillian, JJ., concur.
25