310 Ga. 175
FINAL COPY
S20A0767. SWANN v. THE STATE.
BOGGS, Justice.
Appellant Dakota Swann challenges his 2014 convictions for
murder and other crimes in connection with the shooting death of
Shannon Williams. Appellant argues that trial counsel was
constitutionally ineffective for failing to fully investigate an earlier
shooting incident involving Appellant or to utilize it at trial and for
not discussing the parole implications of the State’s plea offer. We
disagree and affirm.1
1 Williams was shot on January 9, 2008, and succumbed to his injuries
nine days later. After the investigation was finally closed, on August 13, 2013,
a Fulton County grand jury indicted Appellant for murder (Count 1), felony
murder predicated on aggravated assault (Count 2), felony murder predicated
on possession of a firearm by a felon (Count 3), aggravated assault with a
deadly weapon (Count 4), possession of a firearm by a convicted felon (Count
5), and possession of a firearm during the commission of a felony (Count 6). At
a trial from November 10 to 13, 2014, the jury acquitted Appellant on Counts
2 and 4 but found him guilty on all other counts. On November 13, 2014, the
trial court sentenced Appellant to life in prison with the possibility of parole
for malice murder (Count 1) and five years consecutive for possession of a
firearm during the commission of a felony (Count 6), and purported to merge
Counts 3 and 5 with Count 1. The State does not challenge the merger of the
Viewed in the light most favorable to the verdicts, the evidence
presented at trial showed the following. On the evening of January
8, 2009, Demarcus Williams (“Demarcus”) and Williams were
walking down the street when a group of men appeared. Without
warning, one of the men produced a revolver and shot Williams in
the head. Williams fell to the ground, and Demarcus ran back to his
sister’s house nearby, where he woke up Williams’s cousin John
Ridley. Demarcus informed Ridley that Williams had been shot, and
Ridley immediately ran outside and toward the scene of the
shooting. As Ridley approached the scene, two or three minutes after
the shooting, he saw Appellant fleeing the scene holding a handgun.
Sylvia Smith was walking in the same area when she heard
gunshots. Her walking companion tackled her to the ground to
felon-in-possession count. See Dixon v. State, 302 Ga. 691, 698 (
808 SE2d 696)
(2017).The felony murder count (Count 3) was actually vacated by operation of
law. See Malcolm v. State,
263 Ga. 369, 373 (
434 SE2d 479) (1993). Appellant
filed a timely motion for new trial with trial counsel on November 24, 2014,
which he amended with new counsel on June 25, 2018, and again on April 17,
2019. After an evidentiary hearing, the trial court denied the motion on
November 6, 2019. Appellant filed a timely notice of appeal, and the case was
docketed in this Court to the April 2020 term and submitted for a decision on
the briefs.
2
protect her. When Smith looked up, she saw Appellant, whom she
knew from the neighborhood, walking away from the scene “real,
real fast.”
Williams was transported to the hospital but succumbed to his
injuries nine days later. In the days after the shooting, investigators
showed photographic lineups to Demarcus and Smith, both of whom
identified Appellant. In June 2009, Demarcus Collins, a state prison
inmate, contacted the police via letter, claiming that he knew
Appellant and that Appellant had confessed to shooting a man in
the head with a revolver, explaining that he did so because the man
had previously shot him. In June 2013, investigators finally
concluded that they had exhausted all available leads and arrested
Appellant.
1. Although Appellant does not challenge the sufficiency of the
evidence to sustain his convictions, we have — consistent with our
current practice in murder cases — reviewed the evidence presented
at trial, and we conclude that a rational trier of fact could have found
Appellant guilty beyond a reasonable doubt of the crimes for which
3
he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (
99 SCt
2781, 61 LE2d 560) (1979).2
2. Appellant asserts that his trial counsel rendered
constitutionally ineffective assistance for failing to properly
investigate a February 2007 shooting incident and use it at trial and
for failing to discuss with Appellant parole eligibility associated with
the State’s offered plea deal. We disagree.
To prevail on this sort of ineffective assistance of counsel claim,
Appellant must show both that his trial counsel’s performance was
deficient and that this deficiency prejudiced his defense. Strickland
v. Washington, 466 U.S. 668, 687 (
104 SCt 2052, 80 LE2d 674)
(1984). An appellant must satisfy both prongs of the Strickland test,
and if one prong fails, “it is not incumbent upon this Court to
examine the other prong.” Smith v. State,
296 Ga. 731, 733 (
770
SE2d 610) (2015) (citation and punctuation omitted). To establish
2 We remind litigants that the Court will end its 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, 392 (4) (
846 SE2d 83) (2020). The Court began assigning cases to the
December term on August 3, 2020.
4
deficient performance, an appellant “must overcome the strong
presumption that his . . . counsel’s conduct falls within the broad
range of reasonable professional conduct and show that his counsel
performed in an objectively unreasonable way” in the light of all the
circumstances and prevailing norms. Id. (citation and punctuation
omitted). To establish prejudice, an appellant must show that “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland,
466 U.S. at 694. In reviewing either component of the
inquiry, all factual findings by the trial court will be affirmed unless
clearly erroneous. Smith,
296 Ga. at 733.
(a) Appellant asserts that his trial counsel rendered
constitutionally ineffective assistance for first failing to fully
investigate a February 2007 shooting incident involving Appellant
and then failing to use that information at trial to rebut the State’s
theory of the case, namely that Appellant murdered Williams in
retaliation for having been shot by him in 2007. Specifically,
Appellant argues that had trial counsel properly investigated the
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February 2007 incident, he would have discovered that Appellant
had helped the State convict another person, Tyrone Smith, for that
shooting, rebutting the State’s theory and undermining its
credibility. Even assuming that trial counsel’s failure to fully
investigate and introduce the relevant evidence was deficient,
Appellant has failed to prove prejudice.
During opening statements, the State laid out its theory for
Appellant’s motive for shooting Williams. Noting that Appellant was
shot in the leg in February 2007, the State explained that “[t]his
case is about revenge. This case is about getting the guy who shot
[him] in the leg.” During the trial, however, it became evident that
Appellant had been shot twice in 2007 — once in February and once
in November — and that he had been shot once in the leg and once
in the buttocks. The testimony as to which body part had been shot
on which date, however, varied throughout the trial.
Ridley testified that Appellant had previously been shot on the
same day he had a conflict with Williams’ brother, but did not give
a date or identify a body part. Collins’ June 2009 letter stated that
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Appellant had told him that Appellant murdered someone who had
“shot [him] in the leg.” The case’s lead investigator first testified that
he believed Appellant had been shot in the leg in February 2007 but
immediately clarified that the shooting at issue had occurred in
November 2007. On cross-examination by trial counsel, the
investigator reiterated that he knew Appellant had been shot twice
in 2007, once in the leg in November and once in the buttocks earlier
in February. But Appellant’s mother testified that Appellant was
shot in the leg the first time and that the second time he was shot in
the buttocks.
In closing arguments, the State reiterated its theory that the
“case is about revenge,” but noted that Appellant “apparently got
shot twice” in 2007. Changing its theory slightly from its opening
statement, the State argued that Appellant was going to “get his
revenge” not by shooting his attacker “in the leg or in the buttocks,”
but “in the head.”
At the motion for new trial hearing, Appellant’s trial counsel
explained his efforts to investigate the February 2007 shooting
7
incident. While reviewing discovery, he found a police report
concerning that incident, showing that Appellant had been shot. He
discussed the incident with Appellant but could not recall whether
Appellant had provided the name of the man who shot him. During
that conversation, Appellant told trial counsel that Appellant had
helped in the prosecution of the man who shot him. Trial counsel
said that he would raise this at trial. Counsel testified that he met
multiple times with Appellant during the course of preparing for
trial, including just before the trial began. Trial counsel was aware
that Appellant had been shot twice in 2007 and admitted that he
was aware a man was prosecuted for the February 2007 shooting at
the time of trial, that the case would have been a matter of public
record, and that it was not a strategic decision to fail to investigate
further.
As to his efforts to rebut the State’s theory of motive, trial
counsel pointed to cross-examination of the lead investigator. Trial
counsel asked the investigator whether he was aware that Appellant
had “cooperated with the police and helped put somebody in prison”
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for the time “he was shot in the butt.” The officer explained that he
did not have that information. Trial counsel then asked, “if
[Appellant] was going to cooperate with the police once, why
wouldn’t he do it again?” The officer responded that he did not know.
Trial counsel also elicited testimony from Appellant’s mother
regarding Appellant’s cooperation with the police investigation in
the first shooting. Also of note, at the motion for new trial hearing,
while Appellant testified that he had known the February 2007
shooter to be Smith, he claimed that he did not know who shot him
in November 2007.
Assuming without deciding that trial counsel’s investigation
and rebuttal efforts were deficient, Appellant has failed to prove that
he was prejudiced by trial counsel’s failure to introduce court
documents that showed Smith had been convicted for shooting him
in February 2007. It is unclear from the record whether the State’s
theory of motive was predicated on one shooting or the other or both.
The fact that the documents would have shown that Smith was the
shooter in the February 2007 incident, however, did not eliminate
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the possibility that Appellant had other motives for murdering
Williams, including retaliation for the November 2007 shooting.
Further, the admission of these documents would have been
largely cumulative of other evidence presented to the jury because
trial counsel had already elicited testimony from Appellant’s mother
that Appellant had been shot in February 2007 and that, rather
than retaliate against the perpetrator, he had helped police
prosecute and put the shooter in prison, suggesting that he would
not have shot Williams in retaliation for the February 2007 shooting
for which he knew another person had been convicted. See Eller v.
State, 303 Ga. 373, 384 (
811 SE2d 299) (2018) (failure to admit no-
contact order stemming from prior domestic incident not prejudicial
because it was cumulative of other witness testimony); Gibson v.
State,
277 Ga. 486, 487 (
591 SE2d 800) (2004) (similar).
Finally, the State presented three eyewitnesses who placed
Appellant either at or running from the scene of the murder carrying
a gun. In light of trial counsel’s mitigating efforts and the strong
evidence of Appellant’s guilt — which is not predicated on proof of
10
motive, see Cook v. State, 255 Ga. 565, 568 (
340 SE2d 843) (1986)
(“[M]otive is not an element of the offense of murder.”) — it is not
reasonably probable that the outcome of the case would have been
different but for trial counsel’s performance. See Grant v. State,
305
Ga. 170, 176 (
824 SE2d 255) (2019) (counsel’s alleged deficiency not
prejudicial in light of evidence of guilt).
(b) Appellant also claims that his trial counsel was
constitutionally ineffective for failing to inform him of the parole
implications of the State’s plea offer. We disagree.
Prior to trial, the State offered Appellant a plea deal in which
he would serve 25 years for voluntary manslaughter, possession of
a firearm during the commission of a felony, and possession of a
firearm by a convicted felon. Appellant and trial counsel discussed
the offer for approximately two to three minutes, during which time
trial counsel informed Appellant that if he were convicted of murder
he would receive a life sentence, but trial counsel did not discuss any
aspect of parole with Appellant. Appellant rejected the offer. The
trial court twice asked Appellant to confirm his rejection of the offer,
11
which he did. At the motion for new trial hearing, Appellant
explained that he refused the offer because he believed that if he
was convicted of murder and given a life sentence he would only
have to serve thirty years in prison, only five more years then the
plea offer. He never said that trial counsel misinformed him about
parole.
Under our precedent, prior to 2015, counsel was not required
to advise a defendant of parole eligibility with regard to a plea
agreement. See Williams v. Duffy, 270 Ga. 580, 581 (
513 SE2d 212)
(1999), overruled by Alexander v. State,
297 Ga. 59, 64 (
772 SE2d
655) (2015). Given the clear holding in Williams, it was not
professionally deficient for counsel to either fail to predict the future
or to seek to create new law. See Walker v. State,
306 Ga. 579, 583
(
832 SE2d 420) (2019) (“In making litigation decisions, there is no
general duty on the part of defense counsel to anticipate changes in
the law . . . . [W]hen addressing a claim of ineffectiveness of counsel,
the reasonableness of counsel’s conduct is examined from counsel’s
perspective at the time of trial.” (citation and punctuation omitted)).
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As such, Appellant’s trial counsel cannot be held constitutionally
ineffective for failing to do something he was not required to do at
the time.3
Judgment affirmed. All the Justices concur, except Nahmias,
P. J., who concurs in judgment only in Division 2 (b), and Warren,
J., not participating.
Decided October 19, 2020.
Murder. Fulton Superior Court. Before Judge Adams.
Steven E. Phillips, Anna J. Kurien, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Aslean Z. Eaglin, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, Mark
S. Lindemann, Assistant Attorney General, for appellee.
3 Appellant also challenges the trial court’s exclusion of witness
testimony at the motion for new trial hearing as to the hypothetical parole
eligibility of Appellant had he accepted the plea agreement. However, given
that Appellant only offered this evidence to substantiate the ineffectiveness
claim that we have found lacking in merit as a matter of law, this issue is moot.
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