¶1In the Supreme Court of Georgia
¶2 Decided: August 10, 2021
¶3 S21A0504. WILLIAMS v. THE STATE.
¶4 MCMILLIAN, Justice.
¶5 Santiago James Williams appeals his convictions for the
¶6murders of Andrew Steven Coleman and Martial “Montrell”
¶7Washington. His sole contention is that he is entitled to a new trial
¶8because the State’s key witness’s post-trial testimony amounts to
¶9newly discovered evidence. We disagree and affirm. 1
¶10 1 On November 21, 2006, a Chatham County grand jury returned an indictment charging Williams and two co-indictees with two counts of malice murder, two counts of felony murder, one count of armed robbery, and three counts of possession of a firearm during the commission of a felony. At a trial held from April 27 to 29, 2009, a jury found Williams guilty of all counts except one firearm-possession count and armed robbery, for which he was found guilty of the lesser-included offense of aggravated assault with intent to rob. The court sentenced him to serve life in prison for each murder, twenty years in prison for aggravated assault, and five years in prison for each of the remaining firearm-possession counts, all to be served consecutively. The court purported to merge the felony murder counts into the malice murder counts, but the felony murder counts were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 373 (5) (434 SE2d 479) (1993). Williams filed a motion for new trial on May 28, 2009, which was denied The evidence at trial showed that on August 30, 2006, as
¶11Williams and others, including Malcolm Bostick, Marcus Fennell,
¶12and Gabriel Gulley, were drinking and taking drugs, they discussed
¶13the possibility of robbing and killing Coleman. Fennell arranged a
¶14meeting with Coleman at a nearby park that night. At the park,
¶15Williams and Fennell initiated a drug buy with Coleman and
¶16Washington, who arrived together in Coleman’s car, while the others
¶17stood by. After the drugs traded hands, Williams shot Coleman.
¶18Bostick then ran over and shot Washington. The attackers briefly
¶19searched the car, and the group dispersed. Coleman and Washington
¶20succumbed to their gunshot wounds.
¶21on August 4, 2010. His trial counsel filed a notice of appeal on August 24, 2010, but did not respond to the clerk’s office notifying him of errors in the filing until he corrected them on June 29, 2012. Because trial counsel did not pay the bill of costs, however, the record was not transmitted. Williams, acting pro se, requested new appointed counsel in 2013 and asserted his indigence; however, it does not appear that the trial court acted on this request. Trial counsel passed away in 2016. In the meantime, Williams filed a habeas corpus action, which was dismissed as premature, and again requested counsel in 2018 and 2019. New counsel made an appearance and filed for an out-of-time appeal on December 16, 2019, which was granted on June 11, 2020. However, because counsel apparently did not receive notice of the granted out-of-time appeal, the order was vacated and re-issued on September 25, 2020. Williams timely filed a second notice of appeal. His case was docketed to the April 2021 term of this Court and submitted for a decision on the briefs. 2 Williams, Bostick, and Fennell were tried separately, with
¶22Williams tried first. Gulley moved out of state after the crimes, was
¶23never charged in relation to the murders, and testified for the State
¶24at Williams’s trial. So that Gulley would not need to travel again for
¶25the other two trials, the trial court allowed Gulley’s testimony to be
¶26preserved through a video deposition the week after Williams’s trial.
¶27 In his sole enumeration of error, Williams argues that the trial
¶28court abused its discretion in not granting him a new trial based on
¶29newly discovered evidence from Gulley’s post-trial deposition
¶30testimony. To obtain a new trial under OCGA § 5-5-23 based on
¶31newly discovered evidence, a defendant must show: first, that the
¶32evidence came to his knowledge after his trial; second, that the
¶33failure to discover the evidence sooner was not due to his lack of due
¶34diligence; third, that the evidence is so material that it would
¶35probably produce a different verdict; fourth, that the evidence is
¶36admissible and not cumulative only; fifth, an affidavit of the witness
¶37or an explanation for its absence; and sixth, that the effect of the
¶38evidence would be more than to impeach the witness’s credibility.
¶39 3 See Wimberly v. State, 302 Ga. 321, 326 (3) (806 SE2d 599) (2017)
¶40(citing Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792)
¶41(1980)). A defendant fails to meet his burden if he cannot satisfy one
¶42of these requirements, and “a trial court’s ruling on such a motion
¶43will not be reversed unless it affirmatively appears that the court
¶44abused its discretion.” Glover v. State, 296 Ga. 13, 15 (2) (764 SE2d
¶45826) (2014) (cleaned up).
¶46 Gulley’s deposition testimony was largely the same as his trial
¶47testimony, except that during the deposition, Gulley mentioned that
¶48he and the other perpetrators spent time with two others named
¶49Brian and Gary after the murders. In the order denying the motion
¶50for new trial, the trial court concluded that “[t]he discrepancies that
¶51defendant points out are relatively minor and do not lead to a
¶52conclusion that the witness knowingly gave false testimony.” 2
¶53 We see no error in the trial court’s conclusion that Williams
¶54 2 In his motion for new trial, Williams presented other purportedly material differences to argue that Gulley’s testimony was willfully and knowingly false, but he does not assert this argument or those differences on appeal. 4 failed to show that he was entitled to a new trial. The State elicited
¶55the so-called new evidence at Gulley’s deposition by simply asking
¶56him what happened, which Williams was also able to do at trial on
¶57cross-examination but did not. Williams’s failure to sufficiently
¶58cross-examine shows a lack of due diligence. See Smith v. Smith, 293
¶59Ga. 563, 566 (5) (748 SE2d 456) (2013) (in divorce case using same
¶60test for newly discovered evidence, husband lacked due diligence
¶61because he did not cross-examine wife at trial); Timberlake, 246 Ga.
¶62at 491-92 (1); Joyner v. State, 267 Ga. App. 309, 312 (3) (599 SE2d
¶63286) (2004) (lack of due diligence where evidence could have been
¶64obtained earlier, such as on cross-examination). Plus, Gulley’s
¶65deposition testimony “would only have had the effect of impeaching”
¶66his credibility as a witness by demonstrating inconsistencies
¶67between his testimony at trial and his deposition, which the trial
¶68court correctly concluded were “relatively minor.” See Wimberly, 302
¶69Ga. at 327 (3); Glover, 296 Ga. at 15 (2). Therefore, Williams also
¶70failed to make the requisite showing that the evidence was so
¶71material that it would probably produce a different verdict. See
¶72 5 Wimberly, 302 Ga. at 326 (3). Accordingly, we cannot say that the
¶73trial court abused its discretion in denying Williams’s motion for
¶74new trial.
¶75 All the Justices concur, except Colvin, J., not participating.
¶76 6