Strother v. State

FINAL COPY

               S19A0279. STROTHER v. THE STATE.


     NAHMIAS, Presiding Justice.

     Appellant Kyle Strother was convicted of malice murder and

other crimes in connection with the shooting death of Cristobal

Becerre-Contreras. Appellant contends that the evidence presented

at his trial was legally insufficient to support his convictions; that

the trial court failed to act as the “thirteenth juror” when it denied

his motion for new trial; that the court erred by admitting character

evidence related to gang activities and other murders; that his trial

counsel provided ineffective assistance by “opening the door” to that

character evidence; and that he was denied a fair trial when one of

his co-defendants allegedly testified falsely. Each of Appellant’s

claims is meritless, so we affirm.1


     1 Becerre-Contreras was    killed on December 21, 2015. On March 11,
2016, a Floyd County grand jury indicted Appellant, Kelesha Dorsey, and
Delaney Ray for malice murder, felony murder, armed robbery, two counts
each of aggravated assault (with intent to rob and with a deadly weapon) and
      1.    Viewed in the light most favorable to the verdicts, the

evidence presented at Appellant’s trial showed the following. On the

evening of December 21, 2015, Kelesha Dorsey sent a text message

to Becerre-Contreras, a man she had met once and with whom she

occasionally exchanged texts, asking if she could borrow $40.

Becerre-Contreras replied that he would give Dorsey the money if

she “g[a]ve [him] a blowjob,” but Dorsey refused. He then offered to

pay her $100 for sex and told her that he had enough money “to pay

[her] rent for one year.” Dorsey eventually sent Becerre-Contreras




aggravated battery (rendering Becerre-Contreras’s body useless by beating his
head with a gun and by shooting him in the head), and possession of a firearm
during the commission of a felony. Appellant’s trial was severed, and Dorsey
and Ray testified for the State. The trial began on January 23, 2017, and on
January 27, the jury found Appellant guilty of all charges. On March 7, 2017,
the trial court sentenced him to serve life in prison without parole for malice
murder, life in prison for armed robbery, a 20-year concurrent term for the
aggravated battery count based on rendering Becerre-Contreras’s body useless
by beating his head with a gun, and five consecutive years without parole for
the firearm offense. The felony murder count was vacated by operation of law,
and the remaining counts merged. Appellant filed a timely motion for new
trial, which he later amended with new counsel. At the end of an evidentiary
hearing on February 20, 2018, the trial court amended the sentencing order to
make Appellant’s five-year consecutive sentence for the firearm offense
parolable. On August 1, 2018, the trial court denied the motion for new trial,
and Appellant then filed a timely notice of appeal. The case was docketed to
the term of this Court beginning in December 2018 and submitted for decision
on the briefs.
text messages agreeing to have sex with him for $120 and telling

him to come to her apartment later that evening.

     Dorsey then told her roommate Delaney Ray and Ray’s

boyfriend Appellant, who was known as “Droop,” that she wanted

Becerre-Contreras’s money but did not want to have sex with him.

Dorsey asked Appellant to “scare [Becerre-Contreras] away” after he

gave her the money but before they had sex. Appellant instead

proposed the following plan: Dorsey would tell Becerre-Contreras to

pick her up at a nearby gas station and to drive her to her cousin’s

house where they could buy marijuana; Dorsey would instead lead

Becerre-Contreras to a house that belonged to Appellant’s friend

Marcus Townsend; Appellant would rob Becerre-Contreras there;

and Appellant, Dorsey, and Ray would then flee in Ray’s car. Dorsey

sent Becerre-Contreras a text telling him to pick her up at a gas

station near Ray’s apartment in Rome.

     Around 10:15 p.m., Appellant and Ray dropped off Dorsey at

the gas station to wait for Becerre-Contreras. Surveillance video

showed Appellant park Ray’s car at the gas station, enter the
convenience store, and then return to the car; Dorsey left the car

moments later and entered the store as the car drove away.

Appellant and Ray then drove to Townsend’s house, and Appellant

went into the back yard while Ray parked in a nearby cul-de-sac and

waited in her car.

     Ray sent a text to Dorsey at 10:15 p.m. saying, “make sure you

don’t lose [your] stuff,” and then sent her directions to Townsend’s

house. Dorsey sent a text at 10:24 telling Ray, “Girl this man at a

different store,” and another at 10:29 saying, “I’m still waiting on

him.” Ray then sent texts instructing Dorsey: “TELL HIM BUY YOU

WEED AND XANS but yall can get them to bring it to yall when yall

get to ‘yo cousin’ house”; “make sure you look at [D]roop and make

sure he straight”; and “[w]hen yall pull up yall go ahead and get out

the car tell him yall got to use the back door cause you don’t got the

key to the front door.”

     The gas station’s surveillance video showed Dorsey get into

Becerre-Contreras’s gray car and leave the gas station around 10:54

p.m. Per the plan, Dorsey told him to drive to her cousin’s house so
they could buy marijuana, but she instead directed him to

Townsend’s house. At 11:03, Dorsey sent Ray a text saying, “We

getting out now come on.” Ray replied, “I’m in the circle run to me’’

and “[w]atch [D]roop as you run make sure he straight.’’ Dorsey told

Becerre-Contreras that her cousin was not home but had left the

back door open. They walked to the back yard, where Appellant

jumped out from behind a fence, raising a silver revolver above his

head as if to hit Becerre-Contreras.

     Dorsey did not see what happened next, because she ran to

Ray’s car in the cul-de-sac. Moments later, the two women heard a

gunshot. Appellant then ran to the car and told Ray to “drive off.”

On the way to Ray’s apartment, Appellant said that “he shot

[Becerre-Contreras] in the head” and gave Dorsey and Ray each

about $170 from Becerre-Contreras’s wallet. Appellant then called

Townsend and told him not to go to his house, saying “I may have

made a mess in your backyard.” At 12:41 a.m., Appellant sent a text

to Townsend saying, “Read and destroy . . . don’t go near ya spot fa

a day or 2 . . . stay away.” A couple of hours after the shooting, Ray
dropped off Appellant near Townsend’s house to “clean the mess up,”

but Appellant returned to Ray’s car moments later, saying that

someone had been walking nearby. At 8:55 a.m., Appellant sent

Townsend a text saying: “u kant go 2 da house . . . ain’t s**t

c[ ]hanged . . . jus pullup n report da s**t ya self . . . uon know nun . . .

u kame home 2 a strange kar n a man layin in ya yard . . . yo prints

ain’t on s**t mine is . . . Read n destroy.”2 Appellant, Dorsey, and

Ray then fled to his mother’s house in Atlanta.

      Investigators responded to a 911 call from Townsend reporting

a dead body behind his house. In the back yard, they found Becerre-

Contreras, who had died from a gunshot wound to the back of his

head. He was lying face down with his arms underneath his body,

and he had abrasions on his face and blunt force trauma to his head.

A medical examiner later determined that Becerre-Contreras’s head

trauma was consistent with being struck with a gun and that he had

been shot from above at close range. It appears that after being


      2 Ray and Dorsey testified that Townsend was out of town on the night

of the shooting. Although the State subpoenaed Townsend to testify at trial, he
failed to come to court.
struck with the gun in the head, he collapsed face down. Becerre-

Contreras’s phone, which showed the text messages he exchanged

with Dorsey, was near his body, and his gray car was in the

driveway. In a trash can outside the house, investigators found two

receipts for prescription medications for Appellant. Investigators did

not find any shell casings at the scene, which was consistent with a

revolver being used in the shooting. Investigators later found a video

on Ray’s cell phone that showed Appellant with a silver revolver,

and Ray testified that Appellant always carried that gun and had it

that night.

     The next day, investigators interviewed Dorsey and Ray

separately; the video recordings of their statements were played for

the jury. Both women initially said that they did not know anything

about the shooting; that Ray and her friend “Squeaky,” a drug

dealer, had dropped off Dorsey at the gas station that evening,

where she planned to get a ride to her boyfriend’s house; and that

Ray then dropped off “Squeaky” and drove alone to Atlanta. After

investigators told Dorsey that they knew about her text messages to
Becerre-Contreras, she claimed that she and Becerre-Contreras

planned to buy marijuana at Townsend’s house from a man named

“Tuck,” who shot Becerre-Contreras when they arrived. Eventually,

Dorsey and Ray both admitted the plan to rob Becerre-Contreras

with their friend “Droop,” who had robbed and then shot Becerre-

Contreras. They then claimed that they did not know Droop’s real

name. Toward the end of Ray’s interview, she identified Appellant

as Droop and admitted that he was her boyfriend.

     Dorsey and Ray were arrested after their first interviews.

Investigators interviewed Ray again on December 30 and Dorsey on

December 31, and the recorded statements were also played at trial.

Both women named Appellant as the shooter, and the version of

events they provided was substantially similar to their trial

testimony.

     Appellant did not testify at trial; his defense theory was that

Dorsey and Ray initially refused to give investigators the name of

the shooter and later falsely provided his name because they were

afraid of the actual shooter. Dorsey and Ray, however, both said in
their first police interviews that they did not want to provide the

shooter’s name because it was someone they were close to. In

addition, Ray indicated in her second interview that she was afraid

of Appellant, and she testified that she initially refused to give the

police Appellant’s name because she was trying to protect him and

that she was afraid of “getting hurt” if she identified him as the

shooter. Dorsey testified that she had initially refused to provide

Appellant’s name because she had not wanted to be a “snitch.” Both

women also testified that they were not trying to protect an

unidentified shooter.

     2.   Appellant contends that the evidence presented at his

trial was legally insufficient to support his convictions. When

properly viewed in the light most favorable to the jury’s verdicts, the

evidence showed that Appellant, who was known as Droop,

concocted the plan to rob Becerre-Contreras with Dorsey and Ray,

who later identified Appellant as the shooter in their recorded

statements to the police and at trial. In addition, Becerre-

Contreras’s phone showed the text messages that he exchanged with
Dorsey; surveillance video showed Appellant, who was driving Ray’s

car, drop off Dorsey at the gas station where Becerre-Contreras

picked her up less than 45 minutes later; phone records showed that

Dorsey and Ray then exchanged text messages that referenced the

events leading up to the shooting and that in two of those texts, Ray

instructed Dorsey to look at Droop and to make sure that Droop was

“straight”; and Dorsey and Ray testified that Appellant carried a

silver revolver that night, which was consistent with the absence of

shell casings at the crime scene.

     After the shooting, Appellant sent Townsend text messages

referring to the murder and instructing Townsend to conceal

Appellant’s involvement. Appellant then fled to Atlanta with Dorsey

and Ray. This evidence was easily sufficient to authorize a rational

jury to find Appellant guilty beyond a reasonable doubt of the crimes

of which he was convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). See also Green v. State, 

 (

) (2018) (“‘[I]t is the role of the jury

to resolve conflicts in the evidence and to determine the credibility
of witnesses, and the resolution of such conflicts adversely to the

defendant does not render the evidence insufficient.’” (citation

omitted)).

      3.     Appellant also contends that the trial court failed to act

as the “thirteenth juror” in denying his motion for new trial on the

so-called “general grounds” under OCGA §§ 5-5-20 and 5-5-21.3 In

exercising his discretion as the thirteenth juror, “the trial judge

must consider some of the things that [he] cannot when assessing

the legal sufficiency of the evidence, including any conflicts in the

evidence, the credibility of witnesses, and the weight of the

evidence.” White v. State, 

 (

) (2013).

      In his motion for new trial and at the hearing on the motion,

Appellant raised the general grounds, citing OCGA §§ 5-5-20 and 5-

5-21 and White to the trial court several times. In its order denying



      3 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.”
the motion, the trial court referred to the numbered paragraphs in

which Appellant asserted the general grounds in his motion and

then said, “the State presented ample evidence to support the jury

verdict and . . . the evidence was not sufficiently close nor represents

a failure of justice in general.” Contrary to Appellant’s argument,

the court’s order plainly shows that the judge properly exercised his

discretion under OCGA §§ 5-5-20 and 5-5-21. See Burney v. State,

 (

) (2016). See also Price v. State, 

 (

) (2019) (explaining that unless the

record shows otherwise, we will presume that the trial judge

properly exercised his discretion as the thirteenth juror). To the

extent that Appellant also challenges the merits of the court’s denial

of his motion for new trial on these grounds, we have repeatedly

explained that “this Court does not sit as an arbiter of the general

grounds, which are ‘solely within the discretion of the trial court.’”

Wilson v. State, 

 (

) (2017) (citation

omitted). Accordingly, this claim has no merit.

     4.    Appellant contends that the trial court abused its
discretion by admitting into evidence Dorsey’s and Ray’s police-

interview statements about Appellant’s gang activities and Ray’s

interview statements about Appellant’s committing other murders.

Specifically, Appellant argues that this evidence was not relevant,

violated OCGA § 24-4-404 (b)’s prohibition on bad character

evidence and that statute’s pretrial notice requirements, and was

highly prejudicial and should have been excluded under OCGA § 24-

4-403. We disagree.

     (a)   On the first day of trial, Appellant moved in limine to

exclude evidence of his gang activities. The prosecutor agreed not to

introduce the gang evidence unless it became relevant, and the trial

court granted the motion. Later that day, the sergeant who had

interviewed Dorsey and Ray testified for the State. During cross-

examination, Appellant’s counsel advanced his defense theory that

Dorsey and Ray falsely provided Appellant’s name to the sergeant

because they were afraid of the actual shooter. Counsel emphasized

Dorsey’s and Ray’s initial refusal to name the shooter during their

first interviews and questioned the sergeant about the women being
afraid of Townsend and “other people” but not afraid of Appellant.

     The next day, the prosecutor told the trial court that he

planned to play Dorsey’s and Ray’s recorded police interviews during

the State’s re-direct examination of the sergeant. The prosecutor

argued that Appellant’s counsel had “opened the door” to statements

in the interviews about Appellant’s gang activities, which were now

relevant to rebut the defense theory that the women were not afraid

of Appellant and instead feared the actual shooter. Appellant’s

counsel objected based on relevance, but said, “in all candor, I knew

that upon cross-examination [of the sergeant], the issue would come

up because I would bring it up that they’re not afraid, so . . . I’m

going to take it as it comes.” The trial court replied, “that goes back

to trial strategy.” Appellant’s counsel agreed.

     The prosecutor then told the court that during Ray’s second

interview, she said that Appellant bragged about having four

“bodies” to his credit. The court said that the evidence “again[ ] goes

to why she would be afraid” of Appellant and was admissible. Before

the State played the recordings of Dorsey’s and Ray’s second
interviews for the jury, Appellant’s counsel objected, arguing that

Ray’s statements contained hearsay, that the discussion about

Appellant’s other murders was “a three-minute discussion about

what [Ray] has heard about [Appellant],” and that because Ray had

not yet testified about whether she was afraid of Appellant, the gang

evidence should be excluded. The trial court overruled his objection.

     The State then played Ray’s second recorded interview for the

jury. In the interview, Ray said that Appellant was a member of the

Bloods gang “and they take people out” and that his job as a gang

member was to “sweep the streets.” When the sergeant asked her

whether Appellant had bragged about having “several bodies on his

credit,” Ray said that Appellant had “said that he’s beat a case before

about a body”; that she had heard people say that Appellant had

killed four people; and that she had heard Appellant bragging about

killing other people. When another investigator who was present

during the interview asked if Ray thought Appellant was serious,

she replied, “I mean not really because I thought maybe he would be

caught.” Ray said that she did not know any other information about
the bodies, and the investigators moved on to other questions.

     The State then played the recording of Dorsey’s second police

interview. Dorsey told the investigators that Appellant was a

member of the Bloods gang and that he hung out with other gang

members after he fled with Dorsey and Ray to Atlanta.

     During recross-examination of the sergeant, Appellant’s

counsel elicited testimony that there were no murder cases in

Appellant’s criminal history. The sergeant also testified that he was

not aware of any local homicides that were unsolved and that Ray

had heard the information about the four bodies from other people,

not from Appellant.

     (b)   Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” OCGA § 24-4-401. “All relevant evidence shall be

admissible, except as limited by constitutional requirements or as

otherwise provided by law or by other rules . . . .” OCGA § 24-4-402.

The statements about which Appellant complains became relevant
when his counsel elicited testimony supporting his theory of defense

— that Dorsey and Ray first refused to name the shooter and later

falsely accused Appellant because they were afraid of the actual

shooter. That theory made relevant (or as the State frames it,

“opened the door” to) evidence that Dorsey and Ray had instead

initially refused to name Appellant because they were afraid of him.4

Accordingly, the police-interview statements were relevant evidence

under OCGA § 24-4-401. See Parks v. State, 

 (

) (2016) (concluding that the appellant’s prior felony

convictions “became relevant evidence” that the State was entitled


      4 We have explained that “‘opening the door’ is a metaphor used for a

variety of situations that arise in criminal and civil trials involving conduct by
one party that allows the other party to introduce evidence that otherwise
would not be allowed.” Smith v. State, 

, 430 n.5 (

)
(2016). We have cautioned, however, that
      “opening the door” is not a freestanding evidence rule allowing a
      party to present to the jury otherwise inadmissible evidence; the
      phrase appears nowhere in the new Evidence Code or in the
      Federal Rules of Evidence on which our new code was largely
      based. . . . Thus, litigants and trial courts should take care to
      identify the precise basis in the evidence rules – the ones in our
      new Evidence Code – for an argument that one side has “opened
      the door” to allow the admission of otherwise inadmissible
      evidence.

 (emphasis in original).
to explore after he testified that he had become more responsible but

had been “in other trouble throughout [his] life”).

     (c)   As for Appellant’s claim that OCGA § 24-4-404 (b)

required the exclusion of the statements, he made no such objection

at trial. We therefore review this claim only for plain error. See

OCGA § 24-1-103 (d); Gates v. State, 

 (

) (2016).

     OCGA § 24-4-404 (b) is modeled on Federal Rule of Evidence

404 (b).5 We therefore look to the decisions of the federal appellate

courts, particularly the decisions of the Eleventh Circuit, for



     5 OCGA § 24-4-404 (b) says:

           Evidence of other crimes, wrongs, or acts shall not be
     admissible to prove the character of a person in order to show
     action in conformity therewith. It may, however, be admissible for
     other purposes, including, but not limited to, proof of motive,
     opportunity, intent, preparation, plan, knowledge, identity, or
     absence of mistake or accident. The prosecution in a criminal
     proceeding shall provide reasonable notice to the defense in
     advance of trial, unless pretrial notice is excused by the court upon
     good cause shown, of the general nature of any such evidence it
     intends to introduce at trial. Notice shall not be required when the
     evidence of prior crimes, wrongs, or acts is offered to prove the
     circumstances immediately surrounding the charged crime,
     motive, or prior difficulties between the accused and the alleged
     victim.
guidance in construing and applying the rule. See, e.g., Kirby v.

State, 

, 480 n.5 (

) (2018). The Eleventh

Circuit has consistently held that even though Federal Rule 404 (b)

precludes the admission of extrinsic evidence to prove a defendant’s

character in order to show that he acted in accordance with that

character, “inadmissible extrinsic evidence is admissible on redirect

[examination] as rebuttal evidence, when defense counsel has

opened the door to such evidence during cross-examination.” United

States v. West, 898 F2d 1493, 1500 (11th Cir. 1990) (holding that the

victim’s testimony on redirect examination that he went into hiding

after learning that the appellant tried to hire someone to kill him

did not violate Rule 404 (b), because defense counsel had implied

during cross-examination that the appellant’s hit-man plans were

not serious). See also, e.g., United States v. Collier, 

 (11th Cir. 2010) (concluding that the admission of evidence

that the appellant threatened to kill the police officers who arrested

him did not violate Rule 404 (b), because defense counsel had

questioned one of the officers about the police report containing no
indication of any threats); United States v. Johnson, 730 F2d 683,

690 (11th Cir. 1984) (declining to address the appellant’s claim that

a witness’s testimony about other crimes he committed with the

appellant violated Rule 404 (b), because the testimony was “properly

admitted as rebuttal evidence and did not violate [Federal Rule of

Evidence] 403”). Cf. Parks, 

 (concluding that the

appellant’s testimony “opened the door” to evidence of his other

felony convictions, “regardless [of] whether his character was

implicated”).

     The State did not introduce Dorsey’s and Ray’s police-interview

statements for any of the purposes listed in OCGA § 24-4-404 (b),

but rather to rebut Appellant’s defense theory seeking to cast doubt

on those witnesses’ identification of the shooter. Indeed, the State

made no attempt to prove that Appellant had actually been a gang

member or committed other murders. The trial court did not err,

plainly or otherwise, by not excluding the statements under OCGA

§ 24-4-404 (b). And because the statements did not come under § 24-

4-404 (b), Appellant’s argument that the State failed to provide the
pretrial notice required by § 24-4-404 (b) also fails.

      (d)   We likewise reject Appellant’s claim that the police-

interview statements were so prejudicial as to be inadmissible.

Again, Appellant did not object on this ground during trial, so this

issue is reviewable only for plain error. See OCGA § 24-1-103 (d).

Under OCGA § 24-4-403, “[r]elevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice . . . .” We have explained, however, that

      “Rule 403 is an extraordinary remedy, which should be
      used only sparingly, and the balance should be struck in
      favor of admissibility. Thus, in reviewing issues under
      Rule 403, we look at the evidence in a light most favorable
      to its admission, maximizing its probative value and
      minimizing its undue prejudicial impact.”
Anglin v. State, 

 (

) (2017) (quoting

United States v. Edouard, 

, 1344 n.8 (11th Cir. 2007)).6

      The State needed to, and was entitled to, counter the defense

theory challenging the credibility of its two main witnesses. See



      6 Like OCGA § 24-4-404 (b), OCGA § 24-4-403 materially tracks its
counterpart in the Federal Rules of Evidence; we therefore again look to the
decisions of the federal appellate courts, particularly the Eleventh Circuit, for
guidance in applying this provision. See Kirby, 

 n.5.
Brannon v. State, 

 (

) (2016)

(concluding that evidence of the appellant’s other crimes was

admissible under OCGA § 24-4-403, because the evidence was

necessary to counter the appellant’s testimony and defense

theories). See also Olds v. State, 

 (

)

(2016) (explaining that probative value depends in part on the need

for the evidence). That Dorsey and Ray believed Appellant was a

member of the Bloods gang, and that Ray thought Appellant might

have committed other murders, made it considerably more likely

that the reason they hesitated in naming him as the shooter was

fear of him, and considerably less likely that they falsely accused

him because they feared someone else. See Olds, 

(noting that the “greater the tendency to make the existence of a fact

more or less probable, the greater the probative value”).

     Moreover, the prejudice stemming from the gang- and murder-

related statements was significantly reduced by other evidence.

After Ray made her statements about the other “bodies,” she told

the investigators that she did not really believe Appellant when he
bragged about other murders, and the sergeant testified that there

was no evidence that Appellant had been involved in other murders.

And as mentioned above, the State made no attempt to prove that

Appellant had actually been a gang member or committed other

murders. Indeed, the prosecutor did not question Dorsey, Ray, or

any other witness about Appellant’s gang activities or other crimes,

and although closing arguments were not transcribed, Appellant

does not contend that the prosecutor emphasized (or even

mentioned) that evidence during his closing.

     Viewed in full context, the admission of the disputed

statements was not a blatant abuse of discretion under OCGA § 24-

4-403 that would qualify as “clear or obvious” error. See Gates, 

 (explaining that plain error requires, among other things,

that the error alleged was “‘clear or obvious, rather than subject to

reasonable dispute’” (citation omitted)). See also Anglin, 

 (concluding that the trial court did not abuse its discretion in

determining that evidence of the appellant’s gang affiliation was

admissible under OCGA § 24-4-403); United States v. Fortenberry,
971 F2d 717, 721 (11th Cir. 1992) (holding that the trial court did

not abuse its discretion under Federal Rule 403 in admitting

evidence that the appellants were involved in an uncharged double

murder). Appellant’s claim fails.

     5.   Appellant also contends that his trial counsel provided

ineffective assistance by employing a defense strategy that opened

the door to the police-interview statements discussed above. To

prevail on this claim, Appellant must show both that his counsel’s

performance was professionally deficient and that, but for the

unprofessional performance, there is a reasonable probability that

the outcome of the proceeding would have been different. See

Strickland v. Washington, 

 (

, 80

LE2d 674) (1984). We need not review both parts of this test if

Appellant fails to prove one of them. See Jones v. State, 

 (

) (2018).

     Although trial counsel’s defense strategy appears reasonable

under the circumstances of this case, we need not decide that

question, because Appellant has not proved that any deficiency in
counsel’s opening the door to the statements likely affected the

outcome of his trial. As discussed in Divisions 1 and 2 above, the

other evidence of Appellant’s guilt was very strong, and as discussed

in Division 4 above in relation to his OCGA § 24-4-403 claim, the

harm resulting from Dorsey’s and Ray’s police-interview statements

about Appellant’s gang activities and other murders was limited.

Accordingly, Appellant’s ineffective assistance claim fails. See

Jones, 

 (concluding that the appellant could not

establish the prejudice required to show ineffective assistance,

because even though his trial counsel opened the door to proof that

he had committed other violent acts, the evidence of his guilt was

very strong); Dennard v. State, 

 (

)

(2019) (holding that any error in the trial court’s admission of the

appellant’s prior convictions was harmless in light of the

overwhelming evidence of his guilt).

     6.   Finally, Appellant claims that his convictions must be

reversed because Dorsey allegedly testified falsely at his trial that

the State had not offered her a plea deal. We reject this claim as
well.

        During her direct examination at trial, Dorsey testified that

she had not been offered anything to testify and that she had not

been promised anything, but that she hoped she would be offered a

plea deal in exchange for her testimony. After the trial, Dorsey filed

a motion in her own pending case to enforce an alleged plea offer

from the State. At an evidentiary hearing on April 3, 2017, Dorsey

and her counsel asserted that the State had tacitly offered her a plea

deal before Appellant’s trial: in exchange for her truthful testimony

against Appellant, she would be allowed to plead guilty to armed

robbery, and she would be sentenced to a total of 20 years to serve

10 in prison. Dorsey testified that she believed that she had been

offered that deal when she testified at Appellant’s trial; that the

prosecutors and her lawyer instructed her to lie about the deal; and

that she lied when she testified that she did not have a plea deal.

Dorsey’s counsel testified that he offered Dorsey’s testimony against

Appellant to the State in exchange for her guilty plea to armed

robbery; that the State accepted his terms when they decided to use
Dorsey’s testimony; that the prosecutors said that they could not put

an offer in writing; and that it was a “wink, wink, nudge, nudge”

deal.

        The two prosecutors handling Appellant’s case and the Floyd

County District Attorney, however, testified that their practice was

not to extend plea offers to testifying co-defendants prior to trial and

that they had not made a plea offer to Dorsey before Appellant’s

trial.7 Ray’s counsel testified that Ray had not been offered a plea

deal prior to her testimony at Appellant’s trial. In addition, a deputy

sheriff who was present at a meeting between the prosecutors and

Dorsey shortly before Appellant’s trial testified that the prosecutors

“repeatedly” told Dorsey that they were not offering her a plea deal

at that time. On April 12, 2017, the trial court denied Dorsey’s

motion, ruling that she had presented “no evidence, other than the

understanding or hope of [her counsel,] as to an agreement.”

        At Appellant’s motion for new trial hearing in February 2018,


        7 The Floyd County District Attorney testified that on March 10, 2017 —

three days after Appellant was sentenced, which was six weeks after the trial
ended — she offered Dorsey a plea deal of 40 years to serve 20 in prison.
Dorsey testified that she did not remember whether she had a plea

deal when she testified at trial, and the transcript from her April

2017 hearing was admitted into evidence. In its order denying

Appellant’s motion, the trial court found that after Appellant’s trial,

Dorsey changed her testimony about her supposed plea deal

“because she was hoping to receive a lighter sentence.” The court

added, “It is clear that Dorsey testified truthfully at the trial and

when it appeared to benefit her[,] changed her testimony.”

     It is well-established that

     the State has “a duty to reveal any agreement, even an
     informal one, with a witness concerning criminal charges
     pending against that witness, and a failure to disclose
     such an agreement constitutes a violation of the due
     process requirements of Brady v. Maryland, 

     (83 SC[t] 1194, 10 LE2d 215) (1963).” Wimes v. State, 

 (2) (

) (2013). See also Giglio v.
     United States, 

 (

, 31
     LE2d 104) (1972). In addition, the State may not
     knowingly use a witness’s false testimony that [she]
     received no promise of consideration in exchange for [her]
     testimony, and the prosecutor’s failure to correct such
     testimony that he knows to be false denies the defendant
     his right to due process of law. Napue v. Illinois, 

 (

, 3 LE2d 1217) (1959); Smith v.
     Zant, 

 (3) (

) (1983).
Nwakanma v. State, 

 (

) (2015),

disapproved of on other grounds by Willis v. State, 

 (

) (2018). It is also well established that “‘[t]he trial court’s

findings of fact on motion for new trial are upheld unless clearly

erroneous.’” Id. at 497 (citation omitted).

     Here, the record supports the trial court’s finding that the

State had no agreement with Dorsey prior to Appellant’s trial and

that she did not testify falsely at trial when she said there was no

plea deal. See Nwakanma, 

. To the extent that Dorsey

and her counsel hoped or expected that her testifying at Appellant’s

trial would later benefit her, that does not establish a plea

agreement, see Klinect v. State, 

 (

)

(1998), nor does it establish the prosecution’s knowing use of false

testimony, see Nwakanma, 

. This claim too is without

merit. See Wimes, 

.

     Judgment affirmed. All the Justices concur.
                      Decided May 20, 2019.

     Murder. Floyd Superior Court. Before Judge Durham.

     Kenneth W. Sheppard, for appellant.

     Leigh E. Patterson, District Attorney, Luke A. Martin,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Scott O. Teague,

Assistant Attorney General, for appellee.