¶1In the Supreme Court of Georgia
¶2 Decided: June 21, 2021
¶3 S21A0229. SULLIVAN v. THE STATE.
¶4 LAGRUA, Justice.
¶5 Appellant Jaren Anthony Sullivan was convicted of malice
¶6murder and other charges related to the shooting death of Marques
¶7Dockery and the aggravated assault of Najee Murray. On appeal,
¶8Appellant contends that his trial counsel rendered constitutionally
¶9ineffective assistance by failing to present evidence of Dockery’s
¶10alleged gang affiliation, failing to elicit testimony suggesting that
¶11Dockery was armed, and failing to object when an investigator
¶12offered his opinions regarding the shooting. Also contending that
¶13these errors combined to prejudice him, Appellant seeks reversal of
¶14his convictions. We conclude that these claims lack merit, so we affirm. 1
¶15 1. The evidence presented at trial showed that Appellant was
¶16previously in a romantic relationship with Faytasia Terry, with
¶17whom he had a daughter, J.S. After Appellant and Terry ended
¶18their relationship, Terry began dating Dockery.
¶19 On October 10, 2016, Appellant planned to drop off J.S. at
¶20Terry’s house in the evening. However, Appellant messaged Terry
¶21saying that he would drop off J.S. the next morning. The following
¶22day, Appellant called Terry, asking her to pick up J.S. at his home
¶23 1 The crimes occurred on October 11, 2016. On January 5, 2017, a DeKalb County grand jury indicted Appellant for malice murder; felony murder; three counts of aggravated assault, against Dockery, Murray, and Faytasia Terry, respectively; and possession of a firearm during the commission of a felony. At a trial from June 11 to 15, 2018, the jury found Appellant guilty of all charges except the aggravated assault of Terry. On June 15, 2018, the trial court sentenced Appellant to serve life in prison for malice murder; ten consecutive years for the aggravated assault of Murray; and five consecutive years for possession of a firearm during a felony. The felony murder conviction was vacated by operation of law, and the aggravated assault count as to Dockery merged with the malice murder conviction. On September 26, 2018, Appellant filed a motion for an out-of-time appeal. The trial court granted this motion on January 11, 2019. Appellant timely filed a motion for new trial on January 31, 2019, and amended it on August 5, 2019. The trial court held a hearing on the motion for new trial on August 12, 2019, and denied the amended motion on December 4, 2019. Appellant timely filed a notice of appeal on December 18, 2019, this Court docketed Appellant’s case for the term beginning in December 2020, and the case was thereafter submitted for a decision on the briefs. 2 instead. During this phone call, Dockery “snatched” the phone from
¶24Terry and spoke for a few minutes with Appellant. Dockery had
¶25previously expressed disdain over Appellant’s lack of support for J.S.
¶26and his disrespect toward Terry.
¶27 Terry and Dockery then drove to Appellant’s house. Terry’s
¶28brother, Murray, went with them, riding in the passenger seat of the
¶29car. Upon arrival, Dockery parked in the cul-de-sac. After they
¶30arrived, Appellant emerged from his house, with J.S. by his side and
¶31one hand in his jacket pocket. Dockery helped Terry get J.S. into
¶32the car, then walked over to Appellant and began talking to him.
¶33Less than two minutes later, Terry heard gunshots. Terry testified
¶34that she never heard Appellant or Dockery raise their voices before
¶35the shots rang out.
¶36 When Terry turned to see what was happening, Dockery was
¶37holding his neck, running to the front of the car, and trying to duck
¶38down. Terry and Murray testified that Appellant was shooting at
¶39Dockery from within his jacket pocket. Appellant then removed his
¶40hand and his gun from his pocket and shot over the car as Dockery
¶41 3 ran and fell in the middle of the cul-de-sac. Murray stepped out from
¶42the passenger seat of the car and called for Appellant to stop
¶43shooting; Appellant then shot Murray twice. Appellant went to
¶44where Dockery had collapsed and shot Dockery several more times.
¶45Dockery died at the scene.
¶46 After the shooting, Appellant removed J.S. from the car.
¶47Appellant took Terry’s phone, which she had been using to call 911,
¶48and slammed it on the ground. Appellant shouted at Terry and
¶49Murray that “if [they] did not move [Dockery’s] body that he would
¶50come back out and continue shooting.” Appellant then went in his
¶51house.
¶52 Four neighbors testified that they heard gunshots and
¶53witnessed Appellant shoot Dockery multiple times. As the police
¶54arrived, Appellant came out of his house with his hands in the air,
¶55claiming that he acted in self-defense. However, Terry testified that
¶56she could see Dockery’s hands during the shooting and never saw
¶57Dockery reach for anything and that Dockery never owned a gun
¶58during their relationship. Other witnesses testified that they saw
¶59 4 nothing in Dockery’s hands. Furthermore, an investigator testified
¶60that there was no gun found in the car. After obtaining a search
¶61warrant for Appellant’s home, police officers found a nine-millimeter
¶62gun and two loaded ammunition magazines in a washing machine.
¶63 Appellant testified at trial, claiming that he acted in self-
¶64defense. The State presented evidence challenging Appellant’s
¶65testimony and pointing out multiple inconsistencies in statements
¶66Appellant made to the police compared to his trial testimony. For
¶67example, Appellant made no mention in his police statement that
¶68Dockery punched or made contact with him, but at trial claimed that
¶69Dockery attempted to punch him shortly before Appellant started
¶70shooting. Appellant also stated at trial that he saw Murray reaching
¶71for something under the passenger seat, but his statements to the
¶72police contained nothing to that effect.2
¶73 2. Appellant contends that trial counsel was constitutionally
¶74 2 Appellant does not challenge the sufficiency of the evidence supporting his convictions, and we no longer routinely consider sufficiency sua sponte in non-death penalty cases. See Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020). 5 ineffective on three grounds. To succeed on a claim of ineffective
¶75assistance, Appellant “must prove both that his lawyer’s
¶76performance was professionally deficient and that he was prejudiced
¶77as a result.” Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325)
¶78(2020) (citation and punctuation omitted); see also Strickland v.
¶79Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
¶80 “To establish deficient performance, [Appellant] must show that . . . trial counsel performed in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. To establish prejudice, [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.”
¶81Watson v. State, 303 Ga. 758, 761-762 (2) (d) (814 SE2d 396) (2018).
¶82“[I]f [Appellant] fails to establish one prong, we need not examine
¶83the other.” Armstrong v. State, 310 Ga. 598, 607 (5) (852 SE2d 824)
¶84(2020).
¶85 (a) Appellant first contends that his trial counsel was
¶86ineffective for failing to present evidence that Dockery was in a
¶87gang. This evidence, Appellant argues, would have established that
¶88 6 Appellant acted out of a reasonable fear for his life and supported
¶89his claim of self-defense. This argument fails.
¶90 Even assuming, without deciding, that trial counsel’s
¶91performance was constitutionally deficient, any deficiency would not
¶92have prejudiced Appellant’s case. There was substantial eyewitness
¶93testimony that Appellant, without provocation, shot Dockery, then
¶94shot Murray, and then shot Dockery again while he was lying in the
¶95street. Dockery was unarmed, and there was little, if any, evidence
¶96supporting Appellant’s claim that he acted in self-defense. Even if
¶97the evidence of Dockery’s gang affiliation had been introduced at
¶98trial, that would have been outweighed by the evidence described
¶99above. Thus, “it is highly unlikely that the evidence in question,
¶100even if admitted, would have persuaded the jury that [Appellant]
¶101was justified in shooting [Dockery], and thus [Appellant] has failed
¶102to show prejudice.” Jones v. State, 310 Ga. 886, 892 (3) (855 SE2d
¶103573) (2021). This enumeration accordingly lacks merit.
¶104 (b) Appellant next contends that he received ineffective
¶105assistance when trial counsel failed to present witness testimony
¶106 7 that officers retrieved what looked like a gun from Dockery’s car.
¶107During a pre-trial immunity hearing and at trial, Wilford Copeland,
¶108Appellant’s neighbor and a witness for the defense, testified about
¶109aspects of the crime scene investigation that he witnessed from his
¶110front porch, saying that he saw investigators remove a dog from the
¶111car and then saw investigators remove an item from the passenger
¶112side of the car. During the immunity hearing, Copeland testified
¶113that he “assumed” the item was a gun based on “the way [the
¶114investigator] was holding it” when it was removed, but that he was
¶115not sure.
¶116 Before trial, the State moved in limine to exclude Copeland’s
¶117speculation about seeing a gun, and the trial court reserved ruling
¶118on that motion until Copeland’s testimony at trial. During the direct
¶119examination of Copeland, Appellant’s trial counsel asked if
¶120Copeland saw anything during the search of Dockery’s vehicle, and
¶121Copeland stated, “Well like I said, I saw them give the Chihuahua
¶122to someone. But then I sat there and when I was here before [at the
¶123immunity hearing], I didn’t directly see what I thought I saw.”
¶124 8 A bench conference ensued, and the court instructed trial
¶125counsel “to ask [Copeland] some more direct questions so as to avoid
¶126him speculating on the record and in front of the jury.” When
¶127testimony resumed, Copeland said that he saw a detective reach
¶128under the seat, retrieve an item, lay the item on the back of the car,
¶129and take pictures of it. He further testified: “so I assumed that – I
¶130don’t know what it was because I didn’t see it.” The State objected,
¶131and the court stopped Copeland, telling him not to assume anything
¶132and answer only the question that was asked. The following
¶133colloquy then occurred:
¶134 TRIAL COUNSEL: Did you see an object being taken from the vehicle after the Chihuahua? COPELAND: Yes, sir. TRIAL COUNSEL: Did you see that object photographed by detectives? COPELAND: Yes, sir. TRIAL COUNSEL: Do you know what color the object was? COPELAND: Not directly, sir. TRIAL COUNSEL: Okay. Did you see any other objects taken from the vehicle? COPELAND: No, sir.
¶135 Appellant contends that trial counsel performed deficiently at
¶136 9 trial by failing to elicit Copeland’s immunity hearing testimony
¶137about seeing what he assumed was a gun, which Appellant argues
¶138would have been admitted but for trial counsel’s mistaken belief that
¶139the trial court’s admonishment to avoid speculation was a ruling
¶140prohibiting the specific testimony outright. Appellant argues that
¶141trial counsel even testified at the motion for new trial that he did
¶142not believe that Copeland’s testimony was speculative.
¶143 Again, even if trial counsel’s failure to elicit this evidence was
¶144deficient performance, this failure was not prejudicial, as there is no
¶145reasonable probability that the outcome of the proceeding would
¶146have been different had the evidence been presented. See Watson,
¶147303 Ga. at 762 (2) (d). Copeland’s uncertain testimony about what
¶148the item was would likely have been unpersuasive, particularly in
¶149light of the strong evidence against Appellant’s self-defense claim.
¶150Even assuming, without deciding, that the object was a gun, there
¶151was no evidence that Dockery was holding a gun at the time of or
¶152during the shooting, or that Appellant saw the gun when he began
¶153shooting at Dockery. Copeland testified that the object was removed
¶154 10 from the passenger side of the car, which is where Murray – not
¶155Dockery – had been sitting when the confrontation between
¶156Appellant and Dockery began. Moreover, Appellant continued to
¶157shoot Dockery while Dockery was lying in the cul-de-sac away from
¶158the car. This evidence undermined Appellant’s self-defense claim.
¶159Thus, we conclude that there was no “reasonable probability that,
¶160but for counsel’s . . . [error], the result of the proceeding would
¶161have been different.” See id. Accordingly, Appellant cannot show
¶162prejudice, and this enumeration of error fails.
¶163 (c) Appellant next contends that trial counsel inappropriately
¶164allowed Ricardo Harris, the lead investigator in this case, to testify
¶165about how he thought the shooting occurred, about the evidence that
¶166supported the decision to charge Appellant with murder, and about
¶167inconsistencies between the statements of Appellant and his
¶168mother, Joyce Sullivan (hereinafter “Joyce”). We conclude that this
¶169contention lacks merit.
¶170 First, during direct examination, the State played a recording
¶171of Appellant’s statement to the police for the jury to hear. Harris
¶172 11 authenticated this recording. The prosecutor then asked Harris,
¶173“[D]id anything about [Appellant’s] statement seem inconsistent to
¶174you?” Harris responded “Yes,” and went on to explain that the
¶175following seemed abnormal:
¶176 When [Appellant] said that they were initially about 2 feet apart and [Dockery] took a step towards him and that left them with less than a foot distance between the two, then [Appellant] says he stepped back, pulled out his gun and shot [Dockery]. When [Appellant] explains the lunge, he says that he took two, three, four . . . steps. It’s not possible in less than a foot, unless he’s on his tiptoes, to make two, or three or four steps when you’re already face- to-face, so we took that as the initial step violated [Appellant’s] personal space. He steps back, pulled out his gun, and [Dockery] would have had to have been farther back for him to be able to extend and shoot him.
¶177At the motion for new trial hearing, trial counsel was asked if he
¶178considered objecting to this evidence as impermissible evidence of
¶179an ultimate issue. Trial counsel replied:
¶180 Well, I thought the question was what factors went into [Harris’s] decision to charge [Appellant]. And so being that [Harris] was the [investigator] that charged him, I thought—there may or may not have been an objection, but I thought it was relevant to go to why [Harris] charged [Appellant]. And I was trying to show that [Harris] made a mistake in not, you know, deciding that he should have charged [Appellant] because [Appellant] was acting in
¶181 12 self-defense.
¶182 Next, the prosecutor asked Harris at trial, “What factors
¶183brought you to charge [Appellant] with murder?” Harris responded:
¶184 Just even with what I just described. The first part was the deceased had no weapon. Neither did [Murray]. There was no weapon found in the car, and the way [Appellant] described the events, it didn’t—it didn’t mesh with—his whole story just didn’t mesh for it to be self-defense.
¶185Trial counsel was asked at the motion for new trial hearing if he
¶186considered whether or why an investigator charged a suspect to be
¶187relevant to the jury. Trial counsel responded that he did not
¶188consider it relevant, but that he thought Harris’s testimony went to
¶189a charging decision, which is why he opted not to object to its
¶190introduction.
¶191 Finally, the prosecutor asked Harris at trial, “[D]id you have
¶192an opportunity to review the statement of Joyce Sullivan as well?”
¶193Harris replied that he did, and the prosecutor then asked, “Were
¶194there inconsistencies between [Appellant’s] statement and the
¶195statement of Joyce Sullivan?” Harris replied, “I can’t remember
¶196 13 what they were, but there was a few that just didn’t add up about
¶197how the whole thing played out.” At the motion for new trial
¶198hearing, trial counsel was asked, “Did you ever consider objecting
¶199that, as far as impeachment goes, [Joyce Sullivan’s statement]
¶200should have been limited to only the parts that were inconsistent
¶201[with Appellant’s statement]?” Trial counsel responded:
¶202 I wanted the jury to hear her entire statement because she was very consistent with what she testified to and then what [the State] played in the statement. So as a trial strategy, I wanted [the jury] to hear the consistency of her statement.
¶203 Appellant contends that Harris’s comments were inadmissible,
¶204and trial counsel should have objected but failed to do so because he
¶205misunderstood the admissibility of the testimony. Specifically,
¶206citing Teague v. State, 252 Ga. 534, 536 (1) (314 SE2d 910) (1984),
¶207Appellant contends that Harris’s reasoning behind his decision to
¶208charge Appellant with murder is not relevant.3
¶209 3 Teague was decided under our old Evidence Code, but we have applied the same principle in cases decided under the current Evidence Code. See Jackson v. State, 301 Ga. 866, 870 (804 SE2d 367) (2017) (“[A]n investigating officer may not testify about what others told him during his investigation
¶210 14 However, “[Appellant] must show that [counsel’s] deficient
¶211performance prejudiced the defense.” Strickland, 466 U. S. at 687
¶212(III). Here, even if trial counsel was constitutionally deficient in
¶213failing to object to the admission of Harris’s three statements, the
¶214length and weight of the statements were unlikely to cause
¶215prejudice. Harris’s first statement explained the inconsistencies in
¶216Appellant’s statement, a recording of which had already been played
¶217for the jury and authenticated by Harris. Harris’s second statement
¶218explaining his decision to charge Appellant brought up evidence that
¶219had already been elicited through prior testimony. Finally, Harris’s
¶220third statement regarding inconsistencies between Appellant’s
¶221statement and Joyce’s statement was minor and inconclusive, as
¶222Harris stated that he did not remember specifics.
¶223 Furthermore, the admission of these statements was not
¶224prejudicial in light of the other substantial evidence that had
¶225already been presented at trial indicating Appellant’s guilt. There
¶226merely under the guise of explaining the officer’s conduct.” (citation and punctuation omitted)). 15 were eyewitness accounts from Terry, Murray, and multiple
¶227neighbors indicating that Appellant shot Dockery multiple times
¶228after their confrontation, including when Dockery was already lying
¶229on the ground in the cul-de-sac. Additionally, Appellant was
¶230repeatedly confronted on cross-examination with the inconsistencies
¶231between his trial testimony and his statements to the police. There
¶232is no “reasonable probability that,” but for counsel’s error in
¶233allowing Harris’s testimony to be admitted, “the result of the
¶234proceeding would have been different.” Watson, 303 Ga. at 762 (2)
¶235(d); see also Thompson v. State, 304 Ga. 146, 153 (9) (816 SE2d 646)
¶236(2018) (in the context of plain error harm review, detective’s
¶237testimony that she believed appellant was the shooter likely did not
¶238affect outcome of trial, given that the evidence of appellant’s guilt
¶239was compelling and detective’s testimony “would have come as no
¶240surprise to the jury”). Accordingly, Appellant failed to demonstrate
¶241that his counsel’s deficiency, if any, was prejudicial. This
¶242enumeration fails.
¶243 3. Finally, Appellant argues that the cumulative effect of his
¶244 16 trial counsel’s errors entitles him to a new trial. See Schofield v.
¶245Holsey, 281 Ga. 809, 811 n.1 (II) (642 SE2d 56) (2007) (“[I]t is the
¶246prejudice arising from counsel’s errors that is constitutionally
¶247relevant, not that each individual error by counsel should be
¶248considered in a vacuum.” (Citation and punctuation omitted)). Even
¶249if trial counsel’s errors were harmful, the combined harm was
¶250sufficiently outweighed by the strength of the other evidence
¶251presented at trial. The fact that trial counsel failed to establish
¶252Dockery’s gang affiliation in support of Appellant’s self-defense
¶253claim was outweighed by the fact that Appellant acted brutally
¶254towards Dockery, shooting him multiple times even after Dockery
¶255was lying on the ground, as well as shooting Murray, for whom there
¶256was no evidence of gang affiliation. Trial counsel’s failure to elicit
¶257Copeland’s vague testimony was outweighed by the fact that
¶258eyewitnesses did not see Dockery with a gun before, during, or after
¶259the shooting. Finally, Harris’s testimony created no significant
¶260prejudice because his comments were either minor and inconclusive,
¶261or presented facts that were already in evidence. Accordingly, we
¶262 17 decline to grant a new trial on the basis of cumulative error.
¶263 Judgment affirmed. All the Justices concur.
¶264 18