¶1NOTICE: 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 6, 2023
¶4 S23A0454. SCOTT v. THE STATE.
¶5 PINSON, Justice.
¶6 Appellant Diontye Scott was convicted of malice murder and
¶7other crimes in connection with the shooting death of Antonio Veal.1
¶8 1 The crimes occurred on October 3, 2017. On January 5, 2018, a Fulton
¶9County grand jury indicted Scott for malice murder (Count 1), three counts of felony murder (Counts 2, 3, and 4), two counts of aggravated assault with a deadly weapon (Counts 5 and 6), two counts of possession of a firearm during the commission of a felony (Counts 7 and 11), four counts of possession of a firearm by a convicted felon (Counts 12, 13, 14, and 15), possession of marijuana with the intent to distribute (Count 8), speeding (Count 9), and driving with a suspended license (Count 10). Counts 8, 11, and 15 were dismissed prior to trial. Scott’s girlfriend, Dedryna Thornton, was also indicted for tampering with the evidence. Scott was tried separately by a jury from August 20 to 21, 2019. The jury found Scott guilty of all counts. Scott was sentenced to serve life in prison without the possibility of parole on Count 1, 20 years on Count 6 to run consecutive to Count 1, 12 months on Count 9 to run concurrent to Count 1 and commuted to time served, 12 months on Count 10 to run concurrent to Count 1 and commuted to time served, and 15 years on Count 13 to run consecutive to Count 6. The remaining counts were merged or vacated by operation of law. Scott filed a motion for new trial, which he amended through new counsel on September 2, 2021. Following a hearing, the court denied the motion for new trial on July 16, 2022. Scott filed a timely notice of appeal. The case was docketed to the term of this court beginning in April 2023 and submitted for a decision on the briefs. On appeal, Scott contends that his trial counsel provided ineffective
¶10assistance by failing to (1) request an instruction limiting the jury’s
¶11consideration of the stipulations to Scott’s prior felony convictions
¶12as proof of his status as a convicted felon; (2) request an instruction
¶13limiting the jury’s consideration of Scott’s prior felony convictions to
¶14only impeachment; and (3) object to the State’s closing argument,
¶15which allegedly misstated the burden of proof. He also argues that
¶16(4) these errors, taken together, deprived him of a fair trial, see
¶17Schofield v. Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56) (2007),
¶18overruled on other grounds by State v. Lane, 308 Ga. 10, 23 (4) (838
¶19SE2d 808) (2020). But Scott’s ineffective-assistance claims have no
¶20merit. Trial counsel did not act unreasonably by not requesting a
¶21limiting instruction regarding Scott’s prior convictions proving his
¶22convicted-felon status and not requesting an instruction to limit
¶23consideration of his prior convictions for impeachment purposes, so
¶24his counsel’s performance was not deficient. And Scott was not
¶25prejudiced by his counsel’s failure to object to the State’s closing
¶26argument. Even assuming that his counsel erred by failing to object
¶27 2 to the State’s closing argument, Scott failed to show more than one
¶28error, so we need not assess any cumulative prejudice. So we affirm
¶29his convictions.
¶30 1. On October 3, 2017, Scott shot and killed Veal in the second
¶31floor breezeway of the Garden Inn motel, then shot and injured
¶32Veal’s girlfriend, Caitlin Payne. The evidence at trial showed the
¶33following.
¶34 Shashirekha Shetty owned and ran the Garden Inn motel,
¶35which served both short-term and long-term guests. As of September
¶362017, Scott and his girlfriend, Dedryna Thornton, had been staying
¶37at the Garden Inn for about three to four months. 2 Scott testified
¶38that the Garden Inn “was like New Jack City,” 3 and he “started
¶39selling beer, liquor, weed” from their room, claiming, “I literally[]
¶40ran this hotel.” Thornton also sold food from their room. Shetty
¶41 2 Scott testified that they had been staying at the Garden Inn for seven
¶42or eight months, while Shetty and Thornton testified that the stay was three or four months. 3 New Jack City is a 1991 movie “about a rising drug lord in New York
¶43City during the crack cocaine epidemic.” Johnson v. State, 355 Ga. App. 683, 683 n.3 (845 SE2d 419) (2020). 3 increased their room rates because she wanted them to leave due to
¶44the heavy traffic in and out of the room. Veal and Payne also lived
¶45at the Garden Inn as of September 2017. Scott and Thornton knew
¶46Veal and Payne.
¶47 On September 26, three unknown men entered Scott and
¶48Thornton’s room, robbed them, and shot Thornton in the leg. After
¶49the shooting, Shetty told Scott and Thornton to move out, and they
¶50did. Three or four days later, Scott and Thornton came by the motel
¶51to watch the surveillance videos of the shooting. After watching the
¶52videos, Scott testified, he “knew who it was.” He told law
¶53enforcement at the time that Veal was one of the three men; at trial,
¶54he testified that he lied when he gave that statement, and that Veal
¶55was not one of the three men. The surveillance video of the robbery
¶56and a surveillance video of Scott and Thornton watching the video
¶57of the robbery were played for the jury.
¶58 At some point after moving out of the Garden Inn, Thornton
¶59asked Shetty if she could stay at the motel for a few days, and Shetty
¶60agreed. Thornton and Scott returned to the motel on October 3 and
¶61 4 checked into room 310, which Thornton requested and which was
¶62close to Veal’s original room. Veal and Payne originally stayed in
¶63room 308, but moved to a nicer room, room 202, on October 3 to
¶64celebrate Payne’s birthday.
¶65 That evening, Scott saw Veal on the second floor breezeway
¶66and went over to talk to him. The confrontation was captured on
¶67surveillance videos and played for the jury. Several minutes into the
¶68confrontation, Payne opened her room door and stood in the
¶69doorframe listening and smoking a cigarette. Thornton saw Scott
¶70and Veal speaking and went to the breezeway. Thornton testified
¶71that Scott asked, “You sent them men on me?” and Veal responded,
¶72“I would never hurt sis,” referring to Thornton. Thornton testified
¶73that she tried to get Scott to leave “because I didn’t want him to do
¶74anything crazy,” and she saw that he had a gun in his hand. Payne
¶75testified that Veal said “on his kids, he didn’t do it.”
¶76 A few minutes later, Payne tried to move toward Veal. The
¶77surveillance video showed that Payne squeezed in between Scott and
¶78Veal to hand something to Veal. Payne testified that she handed
¶79 5 Veal a lighter. When Payne retreated, Veal was leaning back against
¶80the railing of the breezeway, and briefly put his hands up, with his
¶81palms open. The conversation between Veal and Scott continued for
¶82another minute and a half. Scott then pulled out his gun and shot
¶83Veal in the chest. Payne ran to where Veal collapsed, and Scott
¶84turned and shot Payne in the back.
¶85 Scott testified that he confronted Veal to ask for an apology for
¶86the September 26 robbery and shooting. He asked Veal why Veal
¶87robbed him, and Veal said, “I ain’t got nothing to do with that.” Scott
¶88then confronted Veal with a text message a friend had shown him,
¶89which had led Scott to believe that Veal orchestrated the robbery
¶90and shooting of Thornton. Scott testified that when he told Veal
¶91about the text message, Veal “froze,” and that Thornton was “in a
¶92rage” and “cussing [Veal] out.” 4 Veal then turned his back on Scott,
¶93 4 While the surveillance videos do not have audio, one video of the confrontation shows Thornton standing close to Veal and saying something while gesticulating with her hands. But Thornton testified that she was just trying to get Scott to leave and that she did not “ha[ve] a choice word” with Veal. Thornton testified on behalf of the State as part of an immunity deal whereby the State would not use her testimony at Scott’s trial against her during her own trial for tampering with the evidence related to the shootings. 6 which Scott believed was “really, really, really disrespectful.” When
¶94Payne went to approach Veal, Scott testified that he asked her to
¶95stop three times, but she walked past him and handed something to
¶96Veal, which Scott said “put [him] in defense mode.” Scott testified
¶97that he believed a gun could have been concealed in Payne’s closed
¶98hand (although he did not actually see a gun). He said that he shot
¶99Payne because “I knew what she’s capable of. This ain’t no—this is
¶100no ordinary female. These people rob people together.”
¶101 After the shooting, Scott and Thornton went to Scott’s car and
¶102drove away from the motel. While traveling on the highway, a
¶103College Park police officer detected that Scott was driving 93 miles
¶104per hour in a 65 mile-per-hour zone. While the officer was trying to
¶105pull over Scott’s vehicle, the vehicle slowed down and objects,
¶106including small baggies with “a very strong odor of marijuana” and
¶107a black gun, were thrown out of the windows. Once the vehicle was
¶108pulled over, the officer ran a search of Scott’s driver’s license and
¶109found that it was suspended. The next day, officers searched the
¶110highway and found a black gun and several 9mm bullets. The gun
¶111 7 was determined to be the same gun that fired the 9mm bullets found
¶112at the crime scene.
¶113 2. Scott contends that his trial counsel provided
¶114constitutionally ineffective assistance. To establish ineffective
¶115assistance of counsel, a defendant must show that his counsel’s
¶116performance was professionally deficient and that he suffered
¶117prejudice as a result. See Strickland v. Washington, 466 U.S. 668,
¶118687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To prove deficiency, he
¶119must show that his lawyer “performed his duties in an objectively
¶120unreasonable way, considering all the circumstances and in the light
¶121of prevailing professional norms,” which is “no easy showing, as the
¶122law recognizes a strong presumption that counsel performed
¶123reasonably.” Davis v. State, 299 Ga. 180, 182-183 (2) (787 SE2d 221)
¶124(2016) (citation and punctuation omitted). To show prejudice, a
¶125defendant must show “that there is a reasonable probability that,
¶126but for counsel’s deficiency, the result of the trial would have been
¶127different.” Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d
¶1282022). “A reasonable probability is a probability sufficient to
¶129 8 undermine confidence in the outcome.” Strickland, 466 U.S. at 694
¶130(III) (B). If a defendant fails to make a sufficient showing on one part
¶131of the Strickland test, we need not address the other part. See
¶132Washington, 313 Ga. at 773 (3).
¶133 (a) Scott first contends that his counsel should have requested
¶134an instruction allowing the jury to consider his stipulations to prior
¶135convictions only for the limited purpose of proving his status as a
¶136convicted felon.
¶137 Before trial, the State and defense counsel agreed to stipulate
¶138to Scott’s prior felony convictions for purposes of proving Scott’s
¶139convicted-felon status for the felon-in-possession counts. The
¶140stipulations were read to the jury at the close of the State’s case and
¶141given to the jury in an exhibit. They read:
¶142 1) To meet its burden in Counts 12 and 14 of this indictment, the State must prove beyond a reasonable doubt that the Defendant was previously convicted of a felony. The Defendant has stipulated to this fact and no further proof is necessary by the State solely as to that element of those counts.
¶143 2) To meet its burden in Count 13 of this indictment, the State must prove beyond a reasonable doubt that the
¶144 9 Defendant was previously convicted of a felony involving the possession of a firearm. The Defendant has (also) stipulated to this fact and no further proof is necessary by the State solely as to that element of that count.
¶145During the jury charge, the court instructed the jury:
¶146 The parties have entered into a stipulation that has been approved by the court and made a part of the record as State’s exhibit 49. When parties stipulate facts, this is in the nature of evidence. You must take that fact or those facts as a given without the necessity of further proof.
¶147 Scott contends that because there was no limiting instruction,
¶148the jury likely considered his prior felony convictions when
¶149determining his guilt as to all counts. In his view, it was therefore
¶150unreasonable for trial counsel not to request a limiting instruction.
¶151 Trial counsel did not act unreasonably in declining to seek such
¶152an instruction. “The decision of criminal defense counsel not to
¶153request limiting instructions is presumed to be strategic.” Jones v.
¶154State, 280 Ga. 205, 207 (2) (b) (625 SE2d 1) (2005). While defense
¶155counsel testified at the motion-for-new-trial hearing that he did not
¶156have a strategic reason for failing to request an instruction, “[i]f a
¶157reasonable lawyer might have done what the actual lawyer did—
¶158 10 whether for the same reasons given by the actual lawyer or different
¶159reasons entirely—the actual lawyer cannot be said to have
¶160performed in an objectively unreasonable way.” Shaw v. State, 292
¶161Ga. 871, 875 (3) (a) n.7 (742 SE2d 707) (2013). Here, the stipulations
¶162read to the jury did not obviously call for a limiting instruction: they
¶163contained language that communicated the stipulations applied to
¶164the felon-in-possession counts, and they did not refer to any other
¶165counts. Further, a limiting instruction could have drawn more
¶166attention to Scott’s prior convictions and underscored for the jury
¶167that he had a criminal record. So not asking for a limiting
¶168instruction was not objectively unreasonable, and counsel was not
¶169deficient for failing to request one. See Phillips v. State, 285 Ga. 213,
¶170220 (5) (c) (675 SE2d 1) (2009) (“Where trial counsel testifies that he
¶171chose not to seek a limiting instruction because he did not wish to
¶172 11 draw attention to the prior convictions, the omission was trial
¶173strategy and not evidence of ineffective assistance of counsel.”).
¶174 (b) Scott also contends that his counsel should have requested
¶175an instruction allowing the jury to consider his prior convictions only
¶176for impeachment purposes.
¶177 Although the parties had stipulated to Scott’s status as a
¶178convicted felon, the jury ultimately heard the statutory names and
¶179case numbers of some of his past convictions during the cross-
¶180examination of Scott. While cross-examining Scott, the prosecutor
¶181asked questions about the robbery of his room and his response to
¶182it. Scott denied that cocaine or crack were in his room when he was
¶183robbed, and he agreed that he was trying to “paint” Veal as the “bad
¶184guy” and that he had said he knew what Veal and Payne were
¶185“capable of.” This brief colloquy followed:
¶186 [PROSECUTOR]: But isn’t it true that you’ve been convicted of trafficking in cocaine in case number 09SC86853? [SCOTT]: Yes, ma’am. ... [PROSECUTOR]: And isn’t it also true that you’ve been convicted of aggravated assault with a deadly weapon,
¶187 12 false imprisonment, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon? [SCOTT]: Yes, ma’am.
¶188Scott’s certified convictions, which were referenced in the colloquy,
¶189were then admitted as exhibits; the court required the convictions
¶190to be redacted and did not allow the State to ask questions about the
¶191circumstances of the convictions. There was no further argument,
¶192discussion, or questioning about the convictions. Scott contends that
¶193without a limiting instruction, the jury likely used the prior
¶194convictions as substantive evidence or evidence of his general
¶195character and propensity.
¶196 Scott has failed to establish that trial counsel rendered
¶197deficient performance by failing to request an instruction limiting
¶198the jury’s consideration of his prior convictions to impeachment.
¶199Counsel testified at the motion-for-new-trial hearing that Scott’s
¶200“prior convictions at the time to me were not paramount as far as
¶201him telling his story and explaining why he did what he thought he
¶202had to do.” And, since requesting a limiting instruction might have
¶203 13 drawn further jury attention to Scott’s prior convictions, see
¶204Phillips, 285 Ga. at 220 (5) (c), counsel’s choice to not request such
¶205an instruction could have been objectively reasonable and strategic,
¶206even though counsel did not testify to actually relying on a strategic
¶207reason for not making the request, see Shaw, 292 Ga. at 875 (3) (a)
¶208n.7; Mohamud v. State, 297 Ga. 532, 533-534 (2) (a) (773 SE2d 755)
¶209(2015) (explaining that, since “hindsight has no place in an
¶210assessment of the performance of trial counsel,” counsel’s trial
¶211decision may still have been reasonable even though he testified
¶212that, in hindsight, he had no strategic reason for that decision
¶213(citation and punctuation omitted)). This is particularly true when,
¶214as here, the jury does not hear any details about the convictions
¶215other than the statutory names and case numbers. Cf. Jimmerson v.
¶216State, 289 Ga. 364, 368 (2) (c) (711 SE2d 660) (2011) (holding that
¶217trial counsel’s decision not to poll the jury or request a cautionary
¶218instruction regarding the trial court’s statement alluding to the
¶219defendant’s involvement in recent courthouse shootings “constituted
¶220reasonable trial strategy and does not evidence deficient
¶221 14 performance” because counsel “would not have wanted to draw extra
¶222attention to the issue”). Given the limited nature of the prosecutor’s
¶223inquiry into Scott’s criminal history and the risk that a limiting
¶224instruction could draw undue attention to that history, it was not
¶225objectively unreasonable for trial counsel not to request a limiting
¶226instruction.
¶227 (c) Scott further contends that his counsel should have objected
¶228to the State’s closing argument about the burden of proof. During
¶229the State’s closing argument, the prosecutor spoke at some length
¶230about the State’s burden to prove Scott’s guilt beyond a reasonable
¶231doubt. The prosecutor said, “The law also says that it’s not to a
¶232mathematical certainty. It’s not that you have to say, well I’m about
¶23390 percent sure. Is that good enough? No. That’s not what the law
¶234requires.” Later, the prosecutor explained that the presumption of
¶235innocence is “only there until you all believe that it has been over
¶236come [sic] by the evidence. And that’s something that’s personal to
¶237you. So if it was during the first further-away surveillance video
¶238with Ms. Shetty, then that’s sufficient. If you think that’s sufficient,
¶239 15 then that’s sufficient.” Finally, the prosecutor explained, “and once
¶240you believe that the defendant did it, it’s gone. Once you believe that
¶241the defendant is guilty, then that is guilt beyond a reasonable doubt.
¶242I’ll repeat that again. Once you believe that the defendant is guilty,
¶243that is guilt beyond a reasonable doubt.”
¶244 Scott argues that these statements from the State explained
¶245the burden of proof in a way that suggested that the jury should vote
¶246to convict him if they personally considered him to be guilty, which
¶247effectively reduced the State’s burden of proof. In support, he relies
¶248on Debelbot v. State, 308 Ga. 165 (839 SE2d 513) (2020), in which we
¶249held that defense counsel was ineffective for failing to object to a
¶250prosecutor’s “obviously wrong” description of reasonable doubt
¶251during closing argument.
¶252 Even assuming that trial counsel performed deficiently by
¶253failing to object to the prosecutor’s statements about reasonable
¶254doubt, Scott has not established prejudice. As we have explained in
¶255decisions after Debelbot, that case involved a specific set of
¶256circumstances that made the prosecutor’s comments about
¶257 16 reasonable doubt “uniquely” prejudicial, Debelbot, 308 Ga. at 168: It
¶258was already a “close question” whether the “underwhelming” and
¶259“almost entirely circumstantial” evidence was legally sufficient, id.
¶260That evidence was unusual in that it showed that the two
¶261defendants had “essentially equal opportunities—and no one else
¶262had any opportunity at all—to inflict” the fatal injuries, so “the
¶263logical probability that either [defendant] inflicted the fatal trauma
¶264would be 50 percent.” Id. at 169. And, given that peculiarity, the
¶265prosecutor’s suggestion that the jury could convict a defendant even
¶266if it was less than 51 percent sure about the defendants’ guilt was
¶267“uniquely harmful,” id. at 168-169. Finally, the trial court’s
¶268instruction in Debelbot that the State is not required to prove its
¶269case to “a mathematical certainty,” a phrase which the State
¶270repeated twice, “may well have been understood by the jury not as
¶271correcting the State’s error, but as reinforcing it.” Debelbot v. State,
¶272305 Ga. 534, 543-544 (2) (826 SE2d 129) (2019).
¶273 Absent those unique circumstances, defendants seeking to
¶274establish prejudice from a prosecutor’s comments that do not
¶275 17 accurately characterize reasonable doubt cannot simply rest on
¶276Debelbot. See Warren v. State, 314 Ga. 598, 602-603 (2) (a) (878 SE2d
¶277438) (2022) (in rejecting ineffective-assistance claim based on
¶278closing-argument comments about reasonable doubt, contrasting
¶279those comments and strong evidence of guilt with “uniquely
¶280harmful” remarks and “underwhelming” evidence in Debelbot);
¶281Draughn v. State, 311 Ga. 378, 383 (2) (b) (858 SE2d 8) (2021)
¶282(similar). Instead, a defendant asserting an ineffective-assistance
¶283claim like the one here must show how a prosecutor’s particular
¶284mischaracterization of reasonable doubt likely affected how a jury
¶285weighed the evidence of his guilt under the circumstances of his case
¶286(and in doing so, show how objecting to the comments would have
¶287created a reasonable probability of a different outcome).
¶288 Scott has not done that here. The prosecutor’s comments here
¶289were certainly “inadvisable,” Draughn, 311 Ga. at 383 (2) (b) n.5,
¶290and not an accurate characterization of reasonable doubt. Cf.
¶291Debelbot, 308 Ga. at 169 n.9 (“We admonish lawyers not to confuse
¶292jurors by attempting to quantify a standard of proof that is not
¶293 18 susceptible of quantification.”). But unlike in Debelbot, Scott offers
¶294no basis in particular evidence to think that the prosecutor’s
¶295comments would have affected the outcome of his trial, and as we
¶296explained above, the evidence of Scott’s guilt was strong. Nor was
¶297the jury likely to follow the prosecutor’s guidance on this issue: the
¶298prosecutor told the jury several times that her arguments were not
¶299instructions on the law and that the trial court would instruct the
¶300jury on the law, and the trial court in fact instructed the jury
¶301“accurately and at length” on the burden of proof, the presumption
¶302of innocence, and reasonable doubt. In short, as in our other recent
¶303cases where a defendant has advanced a Debelbot-based theory of
¶304prejudice, “any error in the State’s characterization of reasonable
¶305doubt was considerably less blatant than the error in Debelbot and
¶306— unlike in Debelbot — was cured by the trial court’s instructions
¶307to the jury.” Draughn, 311 Ga. at 383 (2) (b). See Warren, 314 Ga. at
¶308603 (2) (a).
¶309 3. Scott contends that, taken together, the effects of his
¶310counsel’s errors resulted in cumulative prejudice that deprived Scott
¶311 19 of a fair trial.5 Because we have assumed deficiency in only one
¶312instance and Scott has failed to establish any other instance of
¶313deficiency, we need not assess cumulative prejudice. See Scott v.
¶314State, 309 Ga. 764, 771 (3) (d) (848 SE2d 448) (2020) (“Assessing
¶315cumulative prejudice is necessary only when multiple errors have
¶316been shown . . . .”). So his claims of ineffective assistance fail.
¶317 Judgment affirmed. All the Justices concur.
¶318 5 Scott relies on Lane, 308 Ga. 10, but Lane “announced a new rule regarding the cumulative effect of a combination of certain trial court errors and deficiencies of counsel.” Woods v. State, 312 Ga. 405, 410 (III) (1) n.7 (862 SE2d 526) (2021) (emphasis in original). Scott alleges errors only by his trial counsel, and not by the trial court. Still, assessing “the cumulative effect of multiple deficiencies on the part of his trial counsel . . . has long been part of the Strickland analysis” that governs claims of ineffective assistance of counsel. Id. See Schofield, 281 Ga. at 811 (II) n.1. 20