Allen v. State ( 2023 )

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: July 5, 2023
S23A0436. ALLEN v. THE STATE.
PETERSON, Presiding Justice.
Sean Allen appeals his conviction for felony murder for the
shooting death of Daquan Gillett. 1 Allen argues that (1) the trial
court erred when it failed to grant him immunity from prosecution
based on self-defense; (2) the evidence presented at trial was
insufficient to support his conviction; (3) the trial court erred by
limiting his ability to argue the law of self-defense in closing
1The shooting took place on May 7, 2021. On June 10, 2021, a Fayette
County grand jury returned an indictment charging Allen with malice murder,
felony murder, and aggravated assault. At a December 2021 trial, a jury found
Allen not guilty of malice murder and guilty of felony murder and aggravated
assault. The trial court sentenced Allen to life in prison on the felony murder
count; the aggravated assault count merged. On January 4, 2022, Allen filed a
motion for new trial, which was amended by appellate counsel on January 10,
2022, and August 23, 2022. The trial court denied the motion as amended on
October 19, 2023. Allen filed a timely notice of appeal and the case was
docketed to this Court’s April 2023 term and submitted for consideration on
the briefs.
argument; and (4) trial counsel was ineffective in several respects.
We conclude that the evidence authorized the trial court to deny
Allen’s claim of immunity, the evidence was sufficient to support
Allen’s convictions, and the trial court’s error in limiting Allen’s
closing argument did not prejudice his defense. Regarding Allen’s
claims of ineffective assistance of counsel, we conclude that one
claim was not preserved for appellate review, and the other claims
fail because Allen has failed to show prejudice from any of the other
alleged instances of deficient performance. We therefore affirm.
After Allen was indicted for malice murder and other charges,
he filed a motion for immunity from prosecution under OCGA § 16-
3-24.2 based on a claim of self-defense. At a hearing on the motion,
a video recording of the shooting (with no audio) was admitted into
evidence, and Allen and another witness testified in support of
Allen’s motion.
The video recording 2 captured the shooting of Daquan Gillett
2 The video was also admitted at trial. The exhibit submitted to this
Court as the recording admitted at the immunity hearing appears to contain
2
at a Fayette County park and shows the following. Daquan3 and his
twin brother Davon4 were playing with water guns in a parking lot
with other teenagers. Allen 5 entered that area of the parking lot with
several others, greeted Neeko Page,6 then spoke to Davon. Daquan
punched Allen, leading to a brief physical skirmish among the
Gillett brothers and Allen’s group. Allen dropped a firearm, after
which Jonathan Alexander, who was with Allen’s group, started
hopping away.7 Daquan apparently picked up the gun, at which
point Allen started hitting him. Davon grabbed and held Allen.
only one camera angle, although the prosecutor at points during the hearing
referred to “zoom[ing] in” on the video.The separate exhibit submitted to this
Court as used in the trial itself includes recordings from several different parts
of the park and time periods, although it appears that only some of those
recordings were shown to the jury.
3 Daquan was identified in testimony at trial and at the immunity
hearing as appearing in the video wearing a white shirt, dark shorts, and white
leggings.
4 Davon was identified at trial and at the immunity hearing as appearing
in the video in blue or purple shorts and a black shirt.
5 Allen was identified both at trial and at the immunity hearing as
appearing in the video wearing no shirt.
6 “Neeko” was identified at trial as being seen in the video exchanging a
greeting with Allen when Allen approached.
7 Alexander was identified at trial as a shirtless young man in the video
who was initially holding a firearm, then was struck in the foot with a bullet;
at the immunity hearing, he was identified as a person appearing on the video
“with the pants” who “flinches,” having been shot in the foot.
3
Allen’s friend, Jeffery Stephens, 8 was slammed against a car. Jamir
Culbreath, 9 from Allen’s group, pointed a gun or other object
straight into the air. Culbreath and Daquan pointed guns at one
another, then Daquan appears to have lowered his gun before he
disappeared between two cars. Davon released Allen, who then
appears to have retrieved a firearm and shot Daquan while Daquan
was partially hidden from camera view between the cars.
Allen testified at the immunity hearing as follows. Allen’s
group went to the parking lot looking for Page so they would have a
fifth player for their basketball game. When Allen asked Davon
where Page was, Davon and Daquan asked Allen why he was talking
to Davon, both brothers referring to Allen as the “opp”; Allen
explained in his hearing testimony that this meant “enemy” or
“opposition.” Allen then started to walk away but was “hit from
behind” or “jumped” by multiple people. Allen heard a gun fire, then
8At trial, Stephens identified himself in the video as wearing a gray
sweatshirt. The spelling of Stephens’s last name is inconsistent in the record;
we use the spelling used in the trial transcript.
9 Culbreath was identified in testimony at trial as a person in the video
who appears to point a gun into the air.
4
realized his own gun had fallen from his pants. Allen saw Daquan
pointing a gun at him and his friends. Davon then put Allen in a
chokehold when Allen tried to retrieve his gun. When Davon had
Allen in a chokehold, Davon told Allen that Allen was “over with”
and was “fixing to die.” Allen felt like he was going to pass out and
his ears were ringing. While Allen was still in the chokehold,
Daquan hit him in the face with a gun. Allen again heard a gun fire,
and Davon then let him go. Allen started to walk away, but saw
Daquan pointing a gun, so he took a gun from Culbreath. Allen shot
Daquan after he heard Davon telling Daquan to shoot Allen. “I felt
like he was fixing to kill me,” Allen testified. “He already told me
that he was going to kill me; he just told his brother to shoot me.”
Stephens gave testimony generally consistent with Allen’s,
testifying that Daquan was still pointing the gun at Allen, Stephens,
and Culbreath when Allen “retaliated” and shot Daquan.10
10 Alexander also testified in support of Allen at the hearing, but
Alexander’s testimony was stricken after he invoked his right against
compelled self-incrimination under the Fifth Amendment to the United States
Constitution and refused to answer additional questions.
5
The trial court orally denied the motion for immunity at the
conclusion of the hearing, stating that “a reasonable person would
not feel that force was justified in this matter.” The trial court found
the following facts: Allen was not looking for Page when he came
into the parking lot and approached Davon, Allen chose to hit
Daquan when he had a chance to walk away from the fight, and
Allen shot Daquan after Daquan had lowered the gun he was
holding.
At the subsequent jury trial, in addition to viewing the
surveillance video of the incident, the jury heard from several
eyewitnesses for the State. Davon testified that when Allen
approached his group on the day of the shooting, Allen called them
“fake opps” or “opps” and mentioned “something about Instagram.”
Davon testified that Allen told Daquan to “stop talking before I hit
you with this fire” or “shoot you with this fire,” referring to the
firearm visible in Allen’s pants. Davon testified that he later tackled
Allen so that Allen could not pick up his gun from the ground. Davon
balked at saying that he put Allen in a chokehold but acknowledged
6
he was “holding him tight.” But when Davon let Allen go, Davon
said, Allen retrieved another gun and shot Daquan. 11
A young woman who was at the water fight, Mariah
Washington, testified that when Allen approached her group, he
stated, “this is the guy that was talking,” but she didn’t know which
Gillett twin he was referencing. Both Washington and another
young woman, Kierra Munford, recalled that Page was at the water
fight and greeted Allen with a handshake when he approached;
Munford recalled hearing Allen calling out Page’s name as he
approached the group. Munford’s boyfriend, Dejuan Thurman,
testified that the physical altercation began when Allen approached
the twins and said something to Davon like “why you trying to be a
fake opp.”
Munford testified that, a few months before the shooting, Allen
had posted on Instagram a video of Daquan rapping, leading to an
11 Allen challenged Davon’s testimony by introducing evidence of his
comments to police at the scene of the crime, where he said he “didn’t really
see what happened,” and a subsequent interview in which he said nothing
about Allen calling the Gilletts “fake opps” or “opps” and denied the fight was
over a dispute on Instagram.
7
unfriendly exchange on Instagram between Allen and Daquan.
Allen’s Instagram account was deleted the morning after the
shooting. The State elicited vague testimony from a detective that
law enforcement found evidence “in Mr. Alexander’s phone that
there was some indication or planning of an altercation at this park.”
The medical examiner testified that Daquan died from gunshot
wounds to the back of his head and his left thigh, with the relative
amount of bleeding from each suggesting that the wound to the head
occurred first.
Allen testified at trial as follows. Before the day of the shooting,
Allen had no disputes with the Gillett brothers. Allen had just
greeted Page at the park when Davon approached him saying, “why
you here; you opp; we don’t mess with you”; both brothers referred
to Allen as “opp.” Allen replied that he was not worried about being
“opp” and was simply looking for Page. Allen did not threaten to
shoot anyone that day. Allen was tussling with Daquan and
Daquan’s hand was on Allen’s gun when it discharged before falling
to the ground. After Allen picked up his weapon, he told Daquan to
8
“let it go” and end the fight. But when Allen’s gun fell to the ground
again, one of the Gilletts’ friends punched Allen in the face, Davon
put him in a chokehold, and Daquan hit him with a gun. Davon said,
“you over with, you fixing to die” while choking Allen. Allen shot
Daquan in self-defense while Daquan was pointing a gun at him,
and Davon was saying to Daquan, “shoot, shoot.”
Allen also called several other witnesses at trial. Stephens
again testified, giving an account similar to Allen’s. Stephens
testified that when Allen shot Daquan, Daquan was in between cars
but still pointing a gun at Allen. Jamir Culbreath offered similar
testimony. Culbreath testified that Daquan was still pointing a gun
at him and Allen, and Davon was saying “shoot, shoot,” when Allen
took the gun that Culbreath was holding and shot Daquan. Two
other friends of Allen testified that although they did not actually
meet up with Allen’s group prior to the shooting, they had planned
to meet simply to play basketball.
1. Allen argues that the trial court erred by denying his
motion for immunity. We disagree.
9
With some exceptions, a person who uses threats or force in
accordance with OCGA § 16-3-21 is immune from criminal
prosecution. See OCGA § 16-3-24.2. OCGA § 16-3-21 (a) provides a
standard with both subjective and objective components: a person
generally “is justified in using force which is intended or likely to
cause death or great bodily harm . . . 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[.]” In addition to showing that
the defendant actually believed that his use of force was necessary,
in order “[t]o establish justification for killing another, a defendant
must show the circumstances were such as to excite the fears of a
reasonable person” that he or a third person faced death or great
bodily injury; in other words, a defendant must show that his fear
was objectively reasonable. Howard v. State, 298 Ga. 396, 398 (1)
(782 SE2d 255) (2016) (citation and punctuation omitted). “To
prevail on a motion for immunity under OCGA § 16-3-24.2, a
defendant must establish his justification defense by a
preponderance of the evidence.” Ellison v. State, 313 Ga. 107, 110
10
(868 SE2d 189) (2022). “In reviewing the denial of a motion for
pretrial immunity, we must view the evidence in the light most
favorable to the trial court’s ruling and accept the trial court’s
findings of fact and credibility determinations if there is any
evidence to support them.” Id. (citation and punctuation omitted).
“In doing so, however, we may consider facts that definitively can be
ascertained exclusively by reference to evidence that is
uncontradicted and presents no questions of credibility, such as facts
indisputably discernible from a videotape.” State v. Burton, 314 Ga.
637, 642 (2) (878 SE2d 515) (2022) (citation and punctuation
omitted) (explaining standard of review in context of motion to
suppress), disapproved on other grounds by Clark v. State, 315 Ga.
423, 434-435 & n.16 (3) (b) (883 SE2d 317) (2023). “On the other
hand, to the extent that legally significant facts were proved by
evidence other than the video recording, the trial court as factfinder
was entitled to determine the credibility and weight of that other
evidence.” Burton, 314 Ga. at 642 (2). (citation and punctuation
omitted).
11
Here, the trial court was authorized to conclude that Allen did
not meet his burden at the pretrial hearing. Although Stephens
testified at the hearing that Daquan was still pointing a gun at Allen
when Allen shot him, the video evidence shows that Daquan lowered
his gun before he was partially obscured by a car. Thus, the video
does not show that the trial court’s finding that Daquan was not
pointing a gun at Allen when Allen fired was erroneous, and we
defer to the trial court’s finding. See Johnson v. State, 304 Ga. 610,
614 (2) & n.4 (820 SE2d 690) (2018) (affirming denial of immunity
where “video recording appear[ed] to be consistent with the trial
court’s observations noted during the pretrial hearing”). And
although Allen testified at the hearing that he shot Daquan after
Davon told Daquan to shoot Allen, a trial court as the finder of fact
considering a claim of immunity is not required to credit testimony
merely because it is unrebutted. Cf. Johnson v. State, 290 Ga. 382,
384 (2) (a) (721 SE2d 851) (2012) (noting in the context of the trial
court’s consideration of a motion for new trial based on ineffective
assistance of counsel that “a trial court is not required to credit
12
testimony merely because it is unrebutted”). Indeed, Allen’s own
testimony, in which he claimed he was justified in shooting Daquan,
could itself be considered by the trial court as evidence that Allen
shot Daquan under circumstances that did not support a basis for
immunity, given that the trial court discredited that testimony —
explicitly rejecting the part about looking for Page — and there is
other evidence corroborating that conclusion. Cf. Mims v. State, 310
Ga. 853, 855 (854 SE2d 742) (2021). The trial court “was authorized
not only to reject [Allen’s] self-serving testimony but also to conclude
that he had not met his burden to prove justification so as to entitle
him to immunity.” Ellison, 313 Ga. at 111 (affirming denial of
immunity where trial court explicitly discredited defendant’s
testimony about the circumstances of the shooting); see also Hughes
v. State, 312 Ga. 149, 157-158 (4) (861 SE2d 94) (2021) (trial court
authorized to find that defendant failed to carry his burden that he
was entitled to immunity where the trial court did not credit
defendant’s testimony that the victim had a gun and the defendant
could not escape the house where confrontation occurred).
13
2. Allen next argues that the trial court should have granted
him a new trial because the evidence presented at trial was
insufficient to support his conviction. We disagree.
In considering a claim that evidence was insufficient in
violation of federal due process under Jackson v. Virginia, 443 U.S.
307 (99 SCt 2781, 61 LE2d 560) (1979), “our review is limited to an
evaluation of whether the trial evidence, when viewed in the light
most favorable to the verdicts, is sufficient to authorize a rational
trier of fact to find the defendant guilty beyond a reasonable doubt
of the crimes of which he was convicted.” Goodman v. State, 313 Ga.
762, 766 (2) (a) (873 SE2d 150) (2022) (citation and punctuation
omitted). We “put aside any questions about conflicting evidence, the
credibility of witnesses, or the weight of the evidence, leaving the
resolution of such things to the discretion of the trier of fact.” Id. at
766-767 (2) (a) (citation and punctuation omitted).
We conclude that the evidence admitted at trial was sufficient
to sustain the verdict. Allen admitted that he intentionally shot
Daquan; the only question was whether that shooting was legally
14
justified. “When a defendant presents evidence that he was justified
in using deadly force, the State bears the burden of disproving the
defense beyond a reasonable doubt.” Williams v. State, 316 Ga. 147,
150 (1) (886 SE2d 818) (2023) (citation and punctuation omitted).
But “[i]t is the role of the jury to evaluate the evidence and, when
doing so, the jury is free to reject any evidence in support of a
justification defense and to accept the evidence that the shooting
was not done in self-defense.” Id. (citation and punctuation omitted);
see also Gibbs v. State, 309 Ga. 562, 565 (847 SE2d 156) (2020)
(“[T]he question of justification . . . is for the jury to decide.”). The
jury heard Davon’s testimony that Allen threatened to shoot Daquan
shortly after approaching the brothers. And although Davon
disclaimed knowledge of whether Daquan was pointing a gun at
Allen when he was shot, the jury saw video evidence that Daquan
lowered the gun he was holding just before Allen shot him,
undermining Allen’s claim that Daquan was pointing a gun at
Allen’s group when he was shot. When viewed in the light most
favorable to the verdicts, the evidence presented at trial was
15
sufficient to authorize a rational jury to reject Allen’s claim of self-
defense and find him guilty beyond a reasonable doubt of felony
murder. See Carter v. State, 310 Ga. 559, 561-562 (1) (b) (852 SE2d
542) (2020) (sufficient evidence for the jury to conclude that
Appellant was the initial aggressor in the confrontation and thereby
reject his justification defense, as he entered a grocery store parking
lot at 1:00 a.m. and ran toward the victim with his gun drawn and a
t-shirt wrapped around his face, shouting “Don’t move”); Manning
v. State, 303 Ga. 723, 724 (1) (814 SE2d 730) (2018) (jury authorized
to reject self-defense claim, where evidence showed that Appellant
made threatening remarks to the victim just before shooting him).
3. Allen argues that the trial court erred by limiting his
counsel’s ability to argue the law of self-defense in closing argument.
We conclude that any error by the trial court in this regard was
harmless.
During closing argument, defense counsel recited the law on
self-defense. When counsel began to discuss the law on the absence
of a duty to retreat, the trial court interrupted him, saying “you’re
16
reading from the jury charge” and “I’m going to charge this jury.”
When counsel explained that he “didn’t want to read from anything
other than your charges,” the trial court replied, “it’s really improper
argument to be reading the jury charges that I’m going to charge.”
“Okay,” counsel replied. “Because we — [w]e’ll let you charge it,
Judge.” Defense counsel completed his closing argument shortly
thereafter.
Although this Court has limited parties’ ability to read from
case law in arguments to the jury because the text of court decisions
might include language that does not reflect principles of law or may
include principles that the court has decided not to charge the jury
on, we have said that counsel may refer to “law that the court is
going to give in charge.” Conklin v. State, 254 Ga. 558, 570-571 (10)
(b) (331 SE2d 532) (1985). Thus, assuming Allen preserved the error
for ordinary appellate review, the trial court erred in instructing
Allen’s counsel that he could not read from the charge that the court
was expected to give the jury. But we conclude that this error was
harmless.
17
“A nonconstitutional error is harmless if the State shows that
it is highly probable that the error did not contribute to the
verdict[.]” Smith v. State, 313 Ga. 584, 587 (872 SE2d2d 262) (2022)
(citation and punctuation omitted). The only thing the trial court
prevented counsel from saying in closing argument was an
explanation of the law on self-defense that the trial court itself later
gave the jury during jury instructions. In those instructions, the
court told the jury that a person who is not the aggressor does not
have a duty to retreat, the portion of the charge on self-defense that
the interruption apparently stopped counsel from reciting. It is
highly probable that the trial court’s direction preventing counsel
from further reciting the same instructions that the court ultimately
gave to the jury did not contribute to the verdict. See Minter v. State,
266 Ga. 73, 74-75 (2) (463 SE2d 119) (1995) (error in prohibiting
defense counsel from discussing law on verdicts of guilty but
mentally ill and not guilty by reason of insanity in closing argument
was harmless, as trial court correctly instructed jury on that same
law).
18
4. Finally, Allen argues that he was deprived of effective
assistance of counsel in a number of respects. We conclude that Allen
failed to preserve one of his claims of ineffectiveness, and has not
met his burden regarding the others.
To succeed on his claim of ineffective assistance of counsel,
Allen must show that counsel’s performance was deficient and that
counsel’s deficient performance prejudiced Allen’s defense. See
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984). ”“If [a defendant] fails to establish one of these two
prongs, we need not examine the other.” Payne v. State, 314 Ga. 322,
328 (3) (877 SE2d 202) (2022) (citation and punctuation omitted).
“To establish prejudice, [a defendant] must show that there is a
reasonable probability that, but for counsel’s unprofessional error,
the result of the proceeding would have been different.” Id. at 329
(3) (citation and punctuation omitted). “In reviewing a ruling on a
claim of ineffective assistance of counsel, we defer to the trial court’s
findings of fact unless they are clearly erroneous, but we apply the
law to the facts de novo.” Id. (citation and punctuation omitted).
19
(a) Allen first argues that counsel was ineffective for failing
to have Allen’s mental health evaluated. We conclude that Allen has
not shown prejudice from any deficient performance in this regard.
Within two weeks of a scheduled trial date in the case, Allen’s
counsel indicated that he was seeking a mental health expert to
evaluate Allen before trial. The State filed a motion for a
continuance, purportedly on Allen’s behalf, stating that defense
counsel had contacted the State and indicated that the defense had
identified an expert to perform a mental health evaluation of Allen,
but the expert would not be able to complete the evaluation by a
deadline previously imposed by the trial court. At a hearing on the
motion for continuance, defense counsel said the defense would
“essentially concede that there’s no basis for a continuance” and
“we’re not going forward with an expert witness.” The trial court
stated that the defense had “put not only the State, but the Court,
in a precarious position,” telling defense counsel that if the court
excluded any mental health evidence based on the defense’s
tardiness in notifying the State of a mental-health defense, and
20
Allen were convicted, at “some point down the line it’s going to be
raised that you didn’t raise the defense and you’re going to be
deemed ineffective.” Defense counsel insisted that he was ready for
trial, that Allen had “no mental health issues,” that the defense at
trial would be self-defense, that the possible mental health
evaluation mentioned to the State “was just a private screening for
our own benefit,” and that his client wanted to proceed to trial and
not pursue a mental health evaluation. Counsel added that “in most
of my capital cases, matter of protocol, we would recommend some
type of screening.” The trial court granted the motion for a
continuance. Counsel did not have Allen evaluated by a mental
health professional before trial. At a hearing on Allen’s motion for
new trial, trial counsel testified that, although the mental health of
all of his clients was a concern, and he did not recall why Allen was
not evaluated, “I saw that his self-defense was the defense, and I
didn’t see where this was an insanity defense.”
Allen has not met his burden to show that he was prejudiced
by any failure by counsel to seek a mental health evaluation.
21
In Georgia, a defendant is presumed to be sane. Further,
the burden is on the defendant to show that he has a
mental condition that should have been investigated and
offered as proof of a defense to criminal liability or of his
incompetence to stand trial. It is not enough to show
merely that counsel unreasonably failed to inquire into
Appellant’s mental state — he must show a reasonable
probability that such an evaluation would have affected
the outcome at trial.
Shelton v. State, 313 Ga. 161, 171 (3) (b) (869 SE2d 377) (2022)
(citations and punctuation omitted). Here, Allen failed to present at
the motion for new trial stage any expert testimony or other
evidence indicating that he has in fact suffered from mental illness
at any point, let alone at the time of the crime such that he would be
able to avoid criminal responsibility or at the time of trial such that
he would be incompetent to stand trial. Therefore, Allen “has failed
to establish that there is a reasonable probability that the result of
his trial would have been different had his trial counsel requested
an evaluation[.]” Id.; see also Devega v. State, 286 Ga. 448, 450 (4)
(a) (689 SE2d 293) (2010); Cormier v. State, 277 Ga. 607, 608-609 (2)
(a) (592 SE2d 841) (2004).
(b) Allen next argues that trial counsel was ineffective in that
22
he failed to secure a videography expert to testify at trial. Again, we
conclude that Allen has not proven that any deficient performance
prejudiced his case.12
Allen appears to argue that a video expert was necessary to
introduce an enhanced version of the surveillance video shown at
trial, such that the jury would have been better able to see details of
the events in question. Allen has not shown he was prejudiced by
any failure on the part of counsel to secure the testimony of a video
expert. It appears that the jury was able to view some enhanced
video of the events in question, or at least video that was “zoomed
in” on the key players. Moreover, “[i]n assessing the prejudicial
effect of counsel’s failure to call a witness (whether that failure
resulted from a tactical decision, negligent oversight, or otherwise),
a petitioner is required to make an affirmative showing that
specifically demonstrates how counsel’s failure would have affected
12To the extent Allen also claims that counsel was ineffective for failing
to secure the testimony of other experts, he has abandoned that claim by failing
to support it with argument, authority, or citation to the record. See Supreme
Court Rule 22.
23
the outcome of his case.” Goodwin v. Cruz–Padillo, 265 Ga. 614, 615
(458 SE2d 623) (1995). “Either the uncalled witness must testify or
the defendant must introduce a legally recognized substitute for the
uncalled witness’s testimony.” Dickens v. State, 280 Ga. 320, 322 (2)
(627 SE2d 587) (2006). Allen did not present the testimony of a video
expert at the motion-for-new-trial hearing, or provide an affidavit as
a substitute for such testimony.
Allen points to trial counsel’s testimony at the motion for new
trial hearing about “enhancements” to the video performed by a
video expert (whom he apparently retained but did not call at trial)
and the importance of that to the defense. But “a defendant cannot
use defense counsel’s testimony about what an uncalled witness had
been expected to say in order to establish the truth of that uncalled
witness’s testimony.” Dickens, 280 Ga. at 322 (2). And Allen did not
introduce at the motion for new trial stage any actual testimony of
a video expert or any “enhanced” video. Therefore, we cannot
conclude that there is a reasonable probability that the result of the
trial would have been different had trial counsel presented the
24
testimony of a video expert. See Richardson-Bethea v. State, 301 Ga.
859, 864 (2) (804 SE2d 372) (2017) (“Appellant cannot rely on what
some hypothetical expert might say” in claiming that trial counsel’s
failure to present expert testimony to the jury prejudiced her case);
Woods v. State, 275 Ga. 844, 849-850 (3) (d) (573 SE2d 394) (2002)
(defendant cannot show prejudice from counsel’s failure to use
videotape at trial, where defendant never introduced tape itself into
evidence).
(c) Allen next argues that trial counsel provided ineffective
assistance by failing to meet with or subpoena Page, the friend for
whom Allen purportedly was looking when he approached the Gillett
twins. For reasons similar to the reasons we rejected the claims of
ineffective assistance discussed above, we conclude that Allen
cannot prove he was prejudiced by any such deficiency.
Trial counsel testified at the motion for new trial hearing that
the defense had a phone number for Page, had spoken to at least one
member of his family, and believed him to be attending college
outside of Georgia, but the defense “couldn’t locate him.” “[T]rial
25
counsel cannot be held constitutionally deficient for failing to
investigate or call a witness whose whereabouts are unknown[.]”
Thurman v. State, 311 Ga. 277, 279 (857 SE2d 234) (2021) (citation
and punctuation omitted). But the trial court made no findings with
respect to whether Page’s whereabouts were unknown, instead
rejecting Allen’s claim on the basis that he failed to produce Page’s
testimony at the motion for new trial hearing. We agree with the
trial court’s conclusion and conclude that Allen failed to show
prejudice. As explained above with respect to other claims of
ineffective assistance, Allen’s failure to introduce Page’s testimony
or an acceptable substitute is fatal to this claim.
(d) Allen also argues that trial counsel was ineffective for
failing to object to the trial court’s interruption of his closing
argument. We conclude that Allen cannot show prejudice from any
deficient performance in this regard. As discussed above in
addressing a related claim of trial court error, the trial court’s
direction prevented counsel from including in closing argument only
the very jury instructions on self-defense that the trial court would
26
give the jury. Allen cannot show that counsel’s failure to object to
this direction prejudiced his defense.
(e) Finally, Allen argues that trial counsel was ineffective for
failing timely to move for a directed verdict. But he has not
preserved this claim for review.
After the State had rested, before beginning the defense case,
defense counsel noted for the record that he ordinarily might “make
a motion for [directed] verdict” at that point in the case but would
“not do so in this case . . . at this particular time.” The jury later
found Allen not guilty of malice murder and guilty of felony murder
and aggravated assault. After the verdict was returned and the jury
was polled, counsel moved for a “directed verdict,” asking the court
to sit “as the [thirteenth] juror” and “modify its sentence to a
manslaughter, as opposed to the sentence — the charges that was
based on here; because, overwhelmingly, the evidence would not
support the malice murder, felony murder, [and] aggravated
assault.” The trial court responded by stating that “the time for a
directed verdict has long passed,” noting that the defendant had
27
failed to seek an instruction on manslaughter, and stating that
“[s]itting as the [thirteenth] juror . . . your request is denied[,]”
before proceeding into a sentencing hearing.
“Ineffectiveness claims must be raised and pursued at the
earliest practicable moment, which for a claim of ineffective
assistance of trial counsel is at the motion for new trial stage if the
defendant is no longer represented by the attorney who represented
him at trial.” Patterson v. State, 314 Ga. 167, 171 (2) (a) (875 SE2d
771) (2022). Allen did not raise this particular claim of
ineffectiveness in his initial motion for new trial or the amendments
made thereto by appellate counsel. He did not raise such a claim in
the hearing on the motion. Although Allen did question counsel
about this issue at the hearing on the motion, “questioning during
the motion-for-new-trial hearing, by itself, is insufficient to amend
a motion for new trial to add a claim where the trial court did not
rule on the claim.” Id. The trial court did not address in its order
denying the motion for new trial a claim that counsel was ineffective
for failing to timely make a motion for directed verdict. Allen
28
therefore forfeited any such claim. See id.(f) Allen argues that all of trial counsel’s errors “produced a
cumulative prejudicial effect that prevented [him] from receiving a
fair trial.” “[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.” Schofield v. Holsey, 281 Ga. 809,
811 (II) n.1 (642 SE2d 56) (2007) (citation and punctuation omitted),
overruled on other grounds by State v. Lane, 308 Ga. 10, 17 (1) (838
SE2d 808) (2020). Here, Allen has not shown that the cumulative
prejudice from any assumed deficiencies discussed above showed a
reasonable probability that the results of the proceeding would have
been different in the absence of the alleged deficiencies. Allen did
not introduce the sort of evidence necessary to show that he was
prejudiced in any way by counsel’s alleged deficiencies of failing to
have Allen’s mental health evaluated, failing to present the
testimony of a video expert, or failing to meet with or subpoena Page,
so there is no prejudice to accumulate. This leaves the issue of
counsel’s failure to object to the trial court’s interruption of his
29
argument. But, as discussed above, this did not harm Allen’s defense
at all because this failure, at most, meant that counsel was unable
to recite the very same instructions that the court then gave the jury
in its charge. 13 Accordingly, Allen has failed to show that the
combined effect of the aspects of counsel’s performance that we
presume were deficient for purposes of our analysis constituted
prejudice sufficient to sustain his ineffective assistance of counsel
claims, and this final enumeration of error fails.
Judgment affirmed. All the Justices concur.
13 Allen does not explicitly argue that the combined deficiencies of
counsel, along with any alleged error by the trial court, should result in
reversal. See Lane, 308 Ga. at 17 (1). And although we conclude that the trial
court erred in directing Allen’s counsel not to recite in his closing argument the
instructions that the court would give the jury, we have made clear that this
error, like counsel’s failure to object to the interruption, did not prejudice
Allen’s case at all and thus there was no prejudice to accumulate.
30