¶1 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.
¶2In the Supreme Court of Georgia
¶3 Decided: September 20, 2022
¶4 S22A0798. THOMAS v. THE STATE.
¶5 PETERSON, Presiding Justice.
¶6 Derrico Thomas appeals his convictions for malice murder and
¶7possession of a firearm during the commission of a felony, stemming
¶8from the shooting death of Orlando Young. 1 Thomas argues that (1)
¶9 1 The crimes occurred on August 29, 2013. On March 14, 2014, a Fulton County grand jury returned an indictment charging Thomas with malice murder, two counts of felony murder (predicated on aggravated assault and possession of a firearm by a convicted felon), aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. At a March 2015 trial, a jury found Thomas guilty on all counts. The trial court sentenced Thomas to life in prison without the possibility of parole for malice murder, plus a suspended sentence of five years for possession of a firearm during the commission of a felony. The trial court purported to merge the remaining counts into the malice murder sentence; the felony murder counts in fact were vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993). On March 27, 2015, Thomas filed a motion for new trial, which was amended in May 2020, twice in November 2020, and in May 2021. Following a hearing, the trial court denied the motion in an order entered on February 16, 2022. As discussed further in Division 3, the trial court in its order agreed with the State that the court “needs to sentence Thomas on the charge of possession of a firearm by a convicted felon” and indicated it would do so in a future hearing. The following the trial court erred in admitting evidence of a prior shooting and
¶10his aggravated battery conviction that flowed from it; and (2) he was
¶11deprived of his right to testify due to the ineffective assistance of
¶12counsel. We conclude that although the trial court erred in
¶13admitting the evidence of the prior shooting, it is highly probable
¶14that the error in admitting the evidence about the shooting did not
¶15contribute to the verdict. And we conclude that Thomas has not met
¶16his burden to show that trial counsel was constitutionally
¶17ineffective. We therefore affirm Thomas’s convictions.
¶18 The evidence presented at trial showed that Thomas shot and
¶19killed Young at a Fulton County apartment complex on August 29,
¶202013. Earlier in the day, at an apartment in the complex where
¶21Thomas and Young sold drugs, Thomas and Young had argued after
¶22Thomas refused Young’s request to provide free marijuana to a
¶23young woman named Brittany. Young put his gun under his arm
¶24and left the apartment.
¶25day, Thomas filed a notice of appeal, and the case was docketed to this Court’s April 2022 term and orally argued on June 23, 2022. 2 That night, Thomas was alone in the back of the apartment
¶26when Young returned home. Young handed his gun to another
¶27person before going alone toward the back of the apartment. Soon
¶28after, gunshots rang out from the back of the apartment. Thomas
¶29was seen emerging from the apartment holding a firearm. Young
¶30was found lying in the apartment with 12 gunshot wounds. A 911
¶31call reporting the shooting was placed at 10:51 p.m. Young died of
¶32gunshot wounds to the head and torso.
¶33 1. Thomas argues that the trial court erred in admitting
¶34evidence of a prior shooting by Thomas that resulted in his
¶35conviction for aggravated battery. We agree but conclude that this
¶36error was harmless.
¶37 The State filed a pretrial notice of its intent to present evidence
¶38of an April 2009 shooting by Thomas under OCGA § 24-4-404 (b)
¶39(“Rule 404 (b)”). Thomas objected, arguing that it was not relevant
¶40for a proper purpose because the defense would not claim self-
¶41defense, accident, or duress; for that matter, intent would simply not
¶42be an issue in the case. And even if the evidence were relevant,
¶43 3 Thomas argued, any probative value of the evidence would be
¶44substantially outweighed by its prejudice. The trial court ruled at
¶45the start of trial that the evidence was admissible to show intent,
¶46motive, and “possibly” absence of mistake or accident, depending on
¶47what was presented at trial.
¶48 During the trial, over renewed defense objections, the State
¶49presented testimony from Thomas’s former girlfriend about the
¶50April 29, 2009, shooting of Eric Ellis. The former girlfriend, Laney
¶51McLester, was dating Ellis at the time of the shooting. According to
¶52that testimony, McLester had loaned Ellis her car, and Ellis called
¶53her, upset, to report that Thomas had taken the keys from him.
¶54Thomas called McLester about an hour later to report that he had
¶55shot Ellis. The jury heard from an officer who responded to the
¶56incident; he testified that he responded to a call about the shooting
¶57of Ellis at about 11:00 p.m., about a block away from the location
¶58where Young was shot years later. The jury also was informed that
¶59Thomas pleaded guilty to aggravated battery in February 2010,
¶60admitting that he had maliciously caused Ellis bodily injury by
¶61 4 rendering his legs useless, shattering his jaw, and puncturing his
¶62lung. Although the court initially gave a limiting instruction to the
¶63jury that it was to consider the other-acts evidence only to establish
¶64intent, motive, or absence of mistake or accident, in two later
¶65instructions, including during its closing charge, the court told the
¶66jury that it could consider the evidence only for intent or motive. On
¶67appeal, the State defends only intent and motive as possible bases
¶68for admission of the evidence.
¶69 Under Rule 404 (b), “[e]vidence of other crimes, wrongs, or acts
¶70shall not be admissible to prove the character of a person in order to
¶71show action in conformity therewith[,]” but such evidence may be
¶72admissible for other purposes, including to prove intent and motive.
¶73See OCGA § 24-4-404 (b) (containing non-exhaustive list of
¶74permissible purposes); State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d
¶75170) (2015) (Rule 404 (b) “is, on its face, an evidentiary rule of
¶76inclusion which contains a non-exhaustive list of purposes other
¶77than bad character for which other acts evidence is deemed relevant
¶78and may be properly offered into evidence”). When the State seeks
¶79 5 to introduce other-acts evidence under Rule 404 (b), it must show
¶80that (1) the evidence is relevant to an issue in the case other than
¶81the defendant’s character; (2) the probative value of the evidence is
¶82not substantially outweighed by its unfair prejudice under OCGA §
¶8324-4-403 (“Rule 403”); and (3) there is sufficient proof for a jury to
¶84find by a preponderance of the evidence that the defendant
¶85committed the other act. See Jones v. State, 301 Ga. 544, 545 (802
¶86SE2d 234) (2017). We review the trial court’s decision to admit Rule
¶87404 (b) evidence for an abuse of discretion. See Kirby v. State, 304
¶88Ga. 472, 479 (4) (819 SE2d 468) (2018). Here, we conclude that the
¶89trial court abused its discretion in admitting the other-acts evidence
¶90for the purposes of intent and motive, but that error was harmless.
¶91 (a) Intent
¶92 The trial court abused its discretion to the extent that it
¶93admitted the other-acts evidence for the purpose of showing intent.
¶94Thomas concedes that the other-acts evidence was relevant to the
¶95issue of intent. See Olds v. State, 299 Ga. 65, 72 (2) (786 SE2d 633)
¶96(2016) (“[E]vidence that an accused committed an intentional act
¶97 6 generally is relevant to show . . . that the same defendant committed
¶98a similar act with the same sort of intent, especially when the acts
¶99were committed close in time and in similar circumstances.”). But
¶100Thomas argues that the probative value of the evidence for that
¶101purpose was substantially outweighed by unfair prejudice, and we
¶102agree.
¶103 As to the second Rule 404 (b) prong, in evaluating the probative
¶104value of other-acts evidence offered to prove intent, we consider the
¶105overall similarity between the other acts and the charged crimes,
¶106the other act’s temporal remoteness, and the prosecutorial need for
¶107the evidence. See Hood v. State, 309 Ga. 493, 501 (2) (847 SE2d 172)
¶108(2020). Here, the other act and the charged crimes were somewhat
¶109similar in that both involved shooting the victim in the head and
¶110torso over a personal dispute and took place within a block of one
¶111another and at similar times of the evening. The shooting of Ellis
¶112took place less than four-and-a-half years prior to the shooting of
¶113Young, which is not so remote as to be lacking in evidentiary value,
¶114particularly given that it appears that Thomas was incarcerated for
¶115 7 a substantial portion of the time between the two shootings. See
¶116Jones v. State, 311 Ga. 455, 464 (3) (b) (ii) (858 SE2d 462) (2021).
¶117But, although the trial court accepted the State’s characterization
¶118that each shooting involved “some type of dispute over a girl,” that
¶119broadly stated connection is not a very meaningful similarity. See
¶120Jackson v. State, 306 Ga. 69, 77-78 (2) (b) (ii) (829 SE2d 142) (2019)
¶121(rejecting the State’s “general” treatment of similarities between
¶122other-act evidence and the charged crime, and undertaking a “more
¶123careful and granular comparison of the two incidents”).
¶124 Moreover, the State had little, if any, need for extrinsic
¶125evidence to show that Thomas had the intent to murder or assault
¶126Young. As the parties framed the issue for the jury, either Thomas
¶127shot Young 12 times intentionally with the requisite intent, or he
¶128did not shoot him at all; there was no suggestion in the case that
¶129Thomas shot Young in self-defense or, even more improbably, that
¶130the 12 shots were all fired by accident. Although the State
¶131emphasizes that Thomas appears to have requested, and received, a
¶132jury charge on mere presence, the defense did not argue to the jury
¶133 8 that Thomas was present for the shooting but did not have the
¶134requisite intent for conviction. Rather, the defense argued in closing
¶135that the State’s witnesses were not credible and someone else killed
¶136Young, telling the jury, “[t]he issue is whether Derrico Thomas was
¶137there.” Indeed, the State in its closing argument also framed the
¶138choice before the jury as whether to conclude that Thomas
¶139“murdered Orlando Young” or “he wasn’t there.”
¶140 Given the limited similarities and minimal prosecutorial need
¶141for the evidence, it had little probative value as to intent. And
¶142evidence that Thomas had previously committed a shooting that
¶143severely injured the victim certainly held considerable potential for
¶144unfair prejudice. Moreover, the prosecutor discussed the other-acts
¶145evidence in closing argument, highlighting the injuries that Ellis
¶146suffered as a result. And the jury does not appear to have learned
¶147what, if any, punishment Thomas received for that act, which may
¶148have “increased the risk that the jury would want to punish [him]
¶149for his past conduct, rather than only for the charged crimes.”
¶150Jackson, 306 Ga. at 79-80 (2) (b) (ii) (concluding that unfair
¶151 9 prejudice from other-acts evidence substantially outweighed its
¶152minimal probative value where jury did not learn that the defendant
¶153had been prosecuted, admitted his guilt, and served a sentence for
¶154his other criminal act).2 Accordingly, the other-acts evidence had
¶155substantially greater unfair prejudicial force than probative value.
¶156See Kirby, 304 Ga. at 486 (4) (a) (ii) (abuse of discretion to admit
¶157other-acts evidence to prove intent where “Appellant disputed that
¶158he was the killer, but not that [the victim] had been stabbed to
¶159death”).
¶160 (b) Motive
¶161 Thomas’s prior act was not at all relevant for the purpose of
¶162showing motive. To be admissible to prove motive, the other-acts
¶163evidence “must be logically relevant and necessary to prove
¶164something other than the accused’s propensity to commit the crime
¶165 2 An admitted exhibit showed that Thomas received a sentence of ten years, with seven to be served on probation, but it does not appear that the exhibit was published to the jury, and it was not sent back with the jury during deliberations. Moreover, given that the jury heard that Ellis was shot in April 2009, and that Thomas was living freely in the community at the time of Young’s shooting in August 2013, the jury necessarily knew that Thomas could not have spent much more than four years in custody for the shooting of Ellis, a sentence the jury may have viewed as inadequate for such a violent offense. 10 charged.” Thompson v. State, 302 Ga. 533, 540 (III) (807 SE2d 899)
¶166(2017) (citation and punctuation omitted; emphasis in original).
¶167 In denying Thomas’s motion for new trial, the trial court
¶168concluded that the prior shooting was relevant to show motive
¶169because it showed Thomas’s “willingness to resort to violence to
¶170resolve a petty squabble with another man about a woman —
¶171violence that would seem excessive and inappropriate to an ordinary
¶172person.” But that “is a classic improper propensity argument” and
¶173“identif[ies] [Thomas’s] motive to act in far too generic a fashion.”
¶174Kirby, 304 Ga. at 487 (4) (b). The trial court abused its discretion in
¶175admitting the other-acts evidence.
¶176 (c) The error was harmless.
¶177 The trial court’s evidentiary error warrants reversal only if it
¶178was harmful. See Morrell v. State, 313 Ga. 247, 261 (2) (c) (869 SE2d
¶179447) (2022) (“It is fundamental that harm as well as error must be
¶180shown for reversal.”).
¶181 The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In determining whether trial
¶182 11 court error was harmless, we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.
¶183Id. (citation and punctuation omitted).
¶184 To be sure, the prior shooting was a serious, violent act.
¶185Undoubtedly, there was risk of prejudice and confusion of the issues
¶186that could be offset only by strong evidence of Thomas’s guilt for the
¶187charged crimes. But although the case presents a close question, our
¶188de novo review of the record, viewing the evidence presented at trial
¶189as a reasonable juror would, leads us to conclude that the evidence
¶190of Thomas’s guilt was sufficiently compelling that the error in
¶191admitting the evidence about the shooting of Ellis did not contribute
¶192to the verdict.
¶193 No witness claimed to have seen Thomas shoot Young, and the
¶194jury heard about the criminal history of most of the key witnesses
¶195for the State and their ongoing legal troubles when some of them
¶196were interviewed. But multiple witnesses clearly implicated
¶197Thomas as the shooter.
¶198 Andre Miller testified that Young had been agitated on the day 12 of the shooting, Young relaying that he had argued with Thomas
¶199when Thomas refused Young’s request to provide marijuana to a
¶200young woman. Temisha Sykes testified that she spoke to Young on
¶201the phone on the night that he was killed, and he said he was
¶202arguing with Thomas “about a girl.” 3 Deandre Thomas (no apparent
¶203relationship to Appellant) also testified about Young having argued
¶204with Appellant about his refusal to provide drugs to a young woman.
¶205Deandre Thomas testified that he was standing in the kitchen when
¶206 3 Sykes initially was an uncooperative witness at trial, and the State was permitted to play an audio recording of a statement that she gave to a detective. Although the recording was admitted as an exhibit, when the record was submitted to this Court on appeal, the computer disk marked with the pertinent exhibit number contained a number of files, none of which were clearly marked as the recording that was admitted at trial, and many of which were inaccessible, apparently due to corruption of files. Attempts to obtain a usable version of the exhibit from the trial court were unsuccessful. In his brief on appeal, Thomas references the admission of this recording, stating that Sykes subsequently admitted in her testimony “that the information that she told law enforcement on the recording was truthful, specifically, that on the night of the shooting, she spoke with the deceased on the telephone and the deceased stated that he had an argument with Appellant about a girl.” Given the apparently inculpatory nature of Sykes’s pre-trial statement, Thomas does not rely on its substance to argue that his convictions should be reversed, however. Instead, Thomas cites other evidence — in the form of testimony by other witnesses — for the proposition that Young “was angry at Appellant and was angry for matters unrelated to Appellant.” But any evidence that Young may have been angry for reasons unrelated to Appellant on the night he was killed does not change our conclusion that the admission of the other-acts evidence was harmless. 13 Young returned to the apartment, gave his gun to Logan Shearer,
¶207and proceeded to the back of the apartment, where Appellant was
¶208alone. Deandre Thomas testified that he then heard gunshots and
¶209saw Appellant emerge from the apartment carrying a gun. Although
¶210Shearer was an uncooperative witness at trial, claiming to recall
¶211little of what happened on the night of the shooting or what he told
¶212detectives, the jury heard portions of his recorded interview with law
¶213enforcement in which he said unequivocally that Thomas had shot
¶214Young. Shearer said in the portions of the interview played for the
¶215jury that Young gave him his gun and then was inside the
¶216apartment for about five minutes before Shearer heard shots.
¶217Shearer said he was standing outside of the back door of the
¶218apartment and knew that Thomas shot Young because Thomas
¶219“came out of there with a gun, a gun in his hand.” Christopher
¶220Atkins testified that after hearing shots he saw Thomas run out of
¶221the apartment holding something, and that he told the police the
¶222object was a gun. Atkins testified that he had spoken with Thomas
¶223in jail, and Thomas complained that people were “snitching on him”
¶224 14 about the murder of Young. The jury also heard a portion of a
¶225recording of an interview in which Jarquevious Brown, an
¶226exceedingly uncooperative witness at trial who refused to answer
¶227many of the questions put to him and who recanted his statement,
¶228placed Thomas at the scene. Although these witnesses all had
¶229credibility problems, together their testimony largely presented the
¶230same basic story, providing a reasonable juror reason to believe that
¶231story despite the witnesses’ credibility issues.
¶232 In addition to witness testimony, cell phone tower data was
¶233consistent with Thomas having shot Young. The records showed
¶234that Thomas’s phone was on and near the scene of the crime shortly
¶235before Young was shot. Around the time that the shooting was
¶236reported via a 911 call and shortly thereafter, Thomas’s phone was
¶237turned off or in airplane mode. The records showed that by the time
¶238Thomas’s phone had reconnected to a cell phone tower, less than 20
¶239minutes after the shooting, it had been moved away from the area.
¶240This evidence showed that not only had Thomas been on or near the
¶241scene when the shooting occurred — itself not very remarkable given
¶242 15 that he was in the area frequently — but that he left the area after
¶243the shooting and took steps to limit the traceability of his
¶244movements. Viewed together, the eyewitness testimony and cell
¶245phone tower evidence were strong evidence of guilt.
¶246 Moreover, the trial court instructed the jury that it could
¶247consider the other-acts evidence only for certain limited purposes
¶248and could not consider it as evidence that Thomas had a propensity
¶249for committing certain acts. As explained above, there were limited
¶250similarities between the other act and the charged crimes, and
¶251intent was not a significant issue of dispute, so it is highly probable
¶252that the other-act evidence had little effect on any juror as to the
¶253purposes for which the court instructed the jurors that the evidence
¶254could be considered. And we presume that the jury followed the
¶255instructions not to consider it for any other purpose. See Howell v.
¶256State, 307 Ga. 865, 875 (3) (838 SE2d 839) (2020) (considering
¶257limiting instructions in concluding that any error in admission of
¶258other-act evidence was harmless, because “[w]e ordinarily presume
¶259that jurors follow their instructions”). “In [the] light of the strong
¶260 16 independent evidence of [Thomas]’s guilt and the trial court’s
¶261thorough instructions limiting the jury’s use of the other acts
¶262evidence, we conclude that it is highly probable that any error in the
¶263admission of the other acts evidence did not contribute to the guilty
¶264verdicts against [Thomas].” Edwards v. State, 308 Ga. 176, 184 (3)
¶265(839 SE2d 599) (2020) (concluding any error in admitting other-acts
¶266evidence was harmless where evidence of the defendant’s guilt was
¶267strong and the trial court gave limiting instructions); see also
¶268Jackson, 306 Ga. at 81 (2) (concluding that error in admitting
¶269evidence of prior shooting was harmless, largely based on overall
¶270strength of the evidence of the defendant’s guilt); Manning v. State,
¶271303 Ga. 723, 726 (2) (814 SE2d 730) (2018) (concluding any error in
¶272admitting defendant’s prior aggravated assault conviction was
¶273harmless given eyewitness testimony implicating the defendant in
¶274charged shooting).
¶275 2. Thomas also argues that his waiver of his right to testify
¶276was not voluntarily made because his decision was the result of
¶277undue pressure from counsel that constituted ineffective assistance
¶278 17 when counsel explained to him during the trial that any testimony
¶279by Thomas would have to be offered in narrative form because
¶280counsel had concluded his testimony would be untruthful. We
¶281disagree that Thomas has proven that counsel was ineffective in this
¶282regard.
¶283 At the close of the State’s evidence, the trial court asked
¶284Thomas whether he planned to testify, and Thomas responded that
¶285he did. Thomas’s lead trial counsel then stated to the trial court that
¶286Thomas’s desire to testify put counsel in “an ethical situation” such
¶287that Thomas may need to testify in narrative form. The trial court
¶288cleared the courtroom at defense counsel’s request, and the trial
¶289court and defense counsel explained to Thomas that his attorney
¶290could not participate in presenting perjured testimony. After a
¶291meeting with his lead counsel, Thomas announced to the court that
¶292he had changed his mind and decided not to testify.
¶293 At the hearing on Thomas’s motion for new trial, Thomas
¶294testified that his conversation with counsel at trial about testifying
¶295was “heated” and counsel told him, “I’m not going to do it.” Based on
¶296 18 this conversation, Thomas said, he understood that if he decided to
¶297testify, he would lose lead counsel as his lawyer and be left with co-
¶298counsel; Thomas testified that when lead counsel introduced him to
¶299co-counsel, lead counsel told him “that it was [co-counsel’s] first trial
¶300and he’d never been through this kind of situation.” Thomas said
¶301that his decision not to testify was based on this understanding.
¶302Proffering what he would have told the jury if he had taken the
¶303stand, Thomas testified that he shot Young in self-defense.
¶304 Thomas’s lead trial counsel testified at the hearing that, based
¶305on his prior conversations with Thomas, he was confident that
¶306Thomas would perjure himself if he testified. Counsel testified that,
¶307after Thomas announced that he wished to testify, counsel made a
¶308phone call to an unspecified person whom he consulted on his ethical
¶309obligations. Counsel said that he then had a private, “animated”
¶310conversation with Thomas in which counsel explained that he could
¶311not elicit perjured testimony, such that Thomas would need to
¶312testify in narrative form if he took the stand. Counsel testified that
¶313he also explained to Thomas that testifying would be at odds with
¶314 19 the strategy that the defense had employed at trial. Counsel said
¶315that he would not have intentionally suggested to Thomas that
¶316counsel would abandon Thomas mid-trial if he testified, while
¶317acknowledging that counsel may have said something that could be
¶318misinterpreted in this way.
¶319 The trial court denied the motion for new trial, concluding that
¶320“[t]here was no ineffective assistance of counsel, and Thomas was
¶321not deprived of any constitutional rights when he decided not to
¶322testify.” The trial court found that lead “counsel did not intend to
¶323convey he was walking away from representation” and
¶324“appropriately attempted to balance his ethical duties to his client
¶325and to the trial court.”
¶326 To prove his claim of ineffective assistance of counsel, Thomas
¶327must show that counsel’s performance was deficient and that
¶328counsel’s deficient performance prejudiced Thomas’s defense. See
¶329Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
¶330674) (1984). “To show that his lawyer’s performance was deficient,
¶331the defendant must demonstrate that the lawyer performed his
¶332 20 duties in an objectively unreasonable way, considering all the
¶333circumstances and in the light of prevailing professional norms.”
¶334State v. Spratlin, 305 Ga. 585, 591 (2) (826 SE2d 36) (2019) (citation
¶335and punctuation omitted). “In reviewing a ruling on a claim of
¶336ineffective assistance of counsel, we defer to the trial court’s findings
¶337of fact unless they are clearly erroneous, but we apply the law to the
¶338facts de novo.” See id.
¶339 Although a criminal defendant’s constitutional right to testify
¶340on his or her own behalf at trial is a right that is “personal to the
¶341defendant,” see Thornton v. State, 292 Ga. 796, 798 (2) (a) (741 SE2d
¶342641) (2013), trial counsel has a duty to inform a defendant about this
¶343right, that the choice to testify is the defendant’s to make, and about
¶344the implications of choosing to exercise this right, see Thomas v.
¶345State, 282 Ga. 894, 896 (2) (b) (655 SE2d 599) (2008). If a defendant
¶346decides to testify, counsel must accept that decision and call him to
¶347the stand. See United States v. Teague, 953 F2d 1525, 1532 (11th
¶348Cir. 1992).
¶349 Here, Thomas does not contend that trial counsel failed to meet
¶350 21 any of these obligations. Rather, he argues that counsel should have
¶351communicated more clearly to him that he would not lose his lead
¶352counsel if he chose to testify. But Thomas points to no evidence that
¶353lead counsel said something to him that reasonably could be
¶354construed as a communication that lead counsel would abandon him
¶355if he chose to testify. Although Thomas testified that counsel used
¶356the words, “I’m not going to do it,” in context, this is better
¶357understood as an explanation that counsel would not present any
¶358testimony by Thomas in question-and-answer format. Even if we
¶359assume that a lawyer’s failure to clear up a client’s obvious
¶360misunderstanding about the right to testify can in some
¶361circumstances constitute constitutionally deficient performance, cf.
¶362United States v. Hung Thien Ly, 646 F3d 1307, 1317 (11th Cir. 2011)
¶363(trial court was required to correct pro se defendant’s obvious
¶364misunderstanding regarding whether he could testify while
¶365representing himself), Thomas can point to no evidence, let alone a
¶366finding by the trial court, that it was apparent to counsel that
¶367Thomas thought lead counsel would abandon him if Thomas chose
¶368 22 to testify. All Thomas points to is his own post-trial testimony that
¶369he was confused on that point. But “[w]hen considering a claim of
¶370ineffective assistance of counsel, the reasonableness of counsel’s
¶371performance is judged from counsel’s perspective at the time.”
¶372McLaughlin v. Payne, 295 Ga. 609, 612 (761 SE2d 289) (2014).
¶373Thomas has not met his burden to show that counsel performed
¶374deficiently. 4 His enumeration therefore fails, and we thus affirm his
¶375convictions.
¶376 3. The parties have brought a merger error to our attention.
¶377As noted in footnote 1, the trial court purported to merge the count
¶378charging Thomas with possession of a firearm by a convicted felon,
¶379on which the jury found Thomas guilty, into Thomas’s sentence for
¶380malice murder. In responding to Thomas’s motion for new trial, the
¶381State argued that this was error and asked the trial court to impose
¶382a sentence on the felon-in-possession count. In its order denying the
¶383 4 We note that, at the motion-for-new-trial hearing, appellate counsel praised lead trial counsel, Maxwell Schardt, as a “great lawyer” who is “nothing but ethical and really a beacon to all of us in . . . the legal community[.]” Indeed, we commend lead trial counsel for being conscientious regarding his ethical obligations in this situation. 23 motion for new trial, the trial court agreed with the State that the
¶384court “needs to sentence Thomas on the charge of possession of a
¶385firearm by a convicted felon” and added that it “will address this
¶386issue separately and schedule a sentencing hearing for Defendant
¶387Thomas on this conviction.” The record indicates that no such
¶388hearing took place before Thomas filed his notice of appeal the
¶389following day.5 Thomas correctly acknowledges in his appellate brief
¶390to this Court that the count charging him with possession of a
¶391firearm by a convicted felon does not properly merge into malice
¶392murder. See Atkinson v. State, 301 Ga. 518, 521 (2) (801 SE2d 833)
¶393(2017). “Although we decline to exercise our discretion under these
¶394circumstances to correct the merger error, nothing in this opinion
¶395should be read to preclude the trial court from doing so upon return
¶396of the remittitur.” Marshall v. State, 309 Ga. 698, 701 (2) (848 SE2d
¶397389) (2020).
¶398 Judgment affirmed. All the Justices concur.
¶399 5 The record also does not reflect any order from the trial court unmerging the felon-in-possession count such that the count would have remained pending below and defeated finality of the judgment. 24