321 Ga. 240
FINAL COPY
S25A0190. NESBIT v. THE STATE.
LAGRUA, Justice.
Appellant David Nesbit, Jr., appeals his convictions for malice
murder and other crimes related to the shooting death of Gregory
Gabriel and the aggravated assault of Cachino Minor.1 On appeal,
Nesbit contends that his trial counsel was constitutionally
ineffective in the following respects: (1) by failing to recognize,
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1 Gabriel was fatally shot on June 17, 2020. On January 7, 2021, a Cobb
County grand jury indicted Nesbit for the following counts: malice murder
(Count 1); felony murder predicated on aggravated assault (Counts 2 and 3);
felony murder predicated on possession of a firearm by a convicted felon (Count
4); aggravated assault of Gabriel (Count 5); aggravated assault of Minor (Count
6); and possession of a firearm by a convicted felon (Count 7). Nesbit was tried
from July 11 to July 15, 2022, and the jury found Nesbit guilty on all counts.
The trial court sentenced Nesbit to life without the possibility of parole on
Count 1 (malice murder); Counts 2, 3, and 4 (felony murder) were vacated by
operation of law; Count 5 (aggravated assault of Gabriel) merged with Count
1; the trial court sentenced Nesbit to 20 years to serve in confinement on Count
6 (aggravated assault of Minor) to run consecutively to Count 1; and the trial
court sentenced Nesbit to 15 years to serve in confinement on Count 7
(possession of a firearm by a convicted felon) to run consecutively to Count 6.
Nesbit filed a timely motion for new trial, which he later amended through new
counsel on June 29, 2023. After holding an evidentiary hearing on the motion
for new trial, the trial court denied the motion on May 29, 2024. Nesbit filed a
timely notice of appeal to this Court, and the case was docketed to the term
beginning in December 2024 and submitted for a decision on the briefs.
research, and assert defense of habitation at trial; and (2) by failing
to object to the State’s closing argument, during which the
prosecuting attorney purportedly opined about the credibility of
Minor — the State’s primary witness — as well as expressing the
prosecutor’s personal opinion about Nesbit’s guilt and the strength
of the State’s case against him. For the reasons that follow, we
affirm Nesbit’s convictions in this case.
The evidence presented at trial showed that, on the night of
June 17, 2020, Nesbit and his girlfriend, Jamonda Kirkland, had
planned “a date night” to “go out and eat and enjoy [them]selves.”
According to Kirkland, when she and Nesbit left her apartment that
night, they were traveling in Nesbit’s car — a white sedan “with a
black front bumper” — and Nesbit drove to a Texaco gas station in
Mableton where he planned to “[r]eturn[ ] a lottery ticket in
exchange for gas.” Nesbit and Kirkland arrived at the gas station
around 9:40 p.m., and Nesbit parked beside a gas pump and went
inside the gas station’s convenience store. Kirkland stayed in the
2
front passenger seat of the car.2 The owner of the convenience store
testified that, when Nesbit entered the store, he went to the counter
and “cashed” a lottery ticket, after which he prepaid “$15 at pump
number two” and was “given $20.” Nesbit went back outside to his
car and began pumping gas at pump number two.
A minute or two later, Gabriel and his friend, Minor, arrived
at the gas station in Gabriel’s car, a gray Honda Civic. Minor
testified that he and Gabriel — who was like “a brother” to him —
worked for Crystal Springs Water at that time, and they were on a
30-minute break from their eight-hour work shift, which lasted from
4:00 p.m. until 12:00 a.m. The two men decided to take their break
“off premises,” and they drove to the Texaco gas station to “get
something to drink.” Minor testified that, when they arrived at the
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2 The gas station had several surveillance video cameras mounted inside
and outside the store, which were operational on the night in question. The
details of what occurred on June 17 are recorded in the surveillance videos.
Detective Ronson Smith with the Cobb County Police Department’s
technology-based crimes unit was qualified as an expert at trial in forensic
video acquisition and analysis and testified regarding his review and analysis
of the surveillance videos from the gas station, as well as what was reflected
in those videos. The surveillance videos were admitted and played for the jury
at trial.
3
gas station, Gabriel parked his car “right along [the] curb” beside
“pump number one,” and Minor noticed a white “four-door sedan”
parked “on the other side of the exact same pump,” “facing opposite”
of Gabriel’s car. According to Minor, after Gabriel parked the car, he
“got out and went in the store,” and Minor “stayed in the car” in the
“front passenger seat.”
While Gabriel was walking into the store, Minor observed that
the man standing next to the white car pumping gas — later
identified as Nesbit — was watching Gabriel, and Minor “thought it
was very odd.” Minor testified that he had never seen Nesbit before
that night; he and Gabriel “just work[ed]” in that area and did not
“know anybody around there.” After Gabriel got out of the car, Minor
realized that Gabriel’s “firearm” had fallen “right in the middle” of
the driver’s seat, so Minor “grabbed it and moved it out of the seat
and put it on the dash so [Gabriel] could get back in the car without
having to grab that in his hand.”3 Minor testified that Gabriel had
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3 Detective Smith confirmed that, according to the surveillance videos
from the gas station, the passenger in the gray Honda Civic — i.e., Minor —
“move[d] with his hand toward the dash” with what appeared to be a “gun in
4
carried a firearm “for years,” but “never had any conflict or
anything.” Minor said the firearm was registered in Gabriel’s name;
Gabriel kept it strictly “as protection”; and it was “normal for him to
have [the firearm] in the car.”
According to the owner of the convenience store, Gabriel
entered the store about a minute after Nesbit and purchased
“lemonade and orange juice”; he then exited the store and returned
to his vehicle. Minor testified that, as Gabriel was getting into the
driver’s seat of his vehicle with the “bag [of] juice,” Minor “slid
[Gabriel’s firearm] back beside him” on the seat and told him,
“[L]et’s go man, this guy keeps looking.” Gabriel then “looked over”
at Nesbit, and Minor heard Nesbit say, “[Y]ou got a problem?”
Gabriel responded, “[N]o, I don’t have a problem, do you?” Minor
heard Nesbit respond, “[Y]eah, what’s up.” Minor testified that, as
Gabriel was “put[ting] his bag down,” Minor heard the “female in
the passenger side of the white car” say, “[N]o, no baby, no,” followed
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his hand” and set the gun “on the dash.” According to Detective Smith, Nesbit
was “facing away” while Minor was placing the gun on the dashboard.
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by “a gunshot.” Minor did not know “if that first gunshot hit” Gabriel
or not, but Gabriel “flinched.” Gabriel then “grabbed his gun” and
fired back. Minor could not say exactly how many shots were fired,
other than “multiple,” and he was “afraid of getting hit.” Minor
observed that the white car was moving during the shooting, and it
appeared that Nesbit was “almost shooting and driving at the same
time.” According to Minor, Gabriel “didn’t even have keys in the
ignition”; they were “just parked . . . like sitting ducks.”
Kirkland testified to a different version of these events, stating
that, when the man driving the gray car — whom she later learned
was Gabriel — returned to his car from the convenience store, Nesbit
had finished pumping gas and was in the process of getting back into
the driver’s seat of his car. Kirkland testified that she heard Gabriel
ask Nesbit, “[D]o you have a problem?” Kirkland said Nesbit did not
respond, and Gabriel shouted, “[D]o you have a problem?” Kirkland
said Nesbit still did not respond, and at that point, she saw
“[Gabriel] reach[ ] for something that appeared black.” According to
Kirkland, Gabriel “rolled down his window” and “began to shoot out
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the window” at Nesbit’s car. Kirkland testified that Nesbit was in
the car, and he “began to drive” away and “shoot back” at Gabriel’s
car. Kirkland emphasized that Nesbit did not start shooting until
“after he began to drive” and after “several rounds” had already been
fired from Gabriel’s car.
Detective Smith, the State’s expert in forensic video acquisition
and analysis, testified that — as established by the surveillance
videos from the gas station — after Gabriel exited the convenience
store, “some type of verbal interaction” took place between him and
Nesbit while Gabriel was “in the process” of opening his car door and
sitting down.” Detective Smith further testified that, shortly after
this “exchange of words,” “there [was] gun play,” which began after
Gabriel was already in the driver’s seat with the door closed and the
“white vehicle” was “moving and pulling away” from the gas pumps.
Based upon his review and analysis of the surveillance videos,
Detective Smith concluded that Nesbit “clear[ly] present[ed] a
handgun first” and “shot first,” which was further evidenced by the
“distinct muzzle flashes” coming from the driver’s side of Nesbit’s
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vehicle and the fact that Gabriel had not “even obtained his gun”
when the shooting started.
Minor testified that, following the shooting, Gabriel started
“driving back toward the direction of the job,” but Minor “could tell
something was wrong because [Gabriel] was kind of breathing
heavy.” Minor described Gabriel’s state as, “almost like when you
get the wind knocked out of you and you can’t really breathe.”
According to Minor, “that’s when [he] knew. So [he] lifted [Gabriel’s]
shirt up to try to . . . see what was going on. And [he] could see blood.”
At that point, Minor “had to take control of the wheel,” try to “push
the brake with [his] hand,” and “put [the car] in park,” but he
“couldn’t reach far enough.” Eventually, Minor “slowed [the car]
down enough to get it to slow to a standstill” and tried to call 911,4
but he “couldn’t really think” or “tell [the police] where [he] was.”
Minor testified that he “jumped out [of the car] and asked the car
that was behind [them] to call the police because [he] couldn’t
mentally put it together all the way.”
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4 The 911 call was admitted and played for the jury at trial.
8
Antoinette Walker and Lisa Henderson were traveling behind
Gabriel’s car on their way home from church when they noted that
the car in front of them “seemed to be out of control.” Walker put her
“blinkers on and followed behind the car very slowly to keep the
other cars away from hitting anything or anything big happening.”
Gabriel’s car eventually drove into the grass on the side of the road,
and Walker pulled her car over on the side of the road, as well.
Henderson testified that, as soon as the cars came to a stop, the
passenger of the car in front of them “jump[ed] out on the passenger
side and said call 911, call 911 . . . I think he’s dead.” The women
testified that Minor “was screaming,” “panicking,” and “emotionally
distraught.” Henderson called 911,5 and the women waited with
Minor until police officers and the ambulance arrived. The police
officers who arrived on the scene observed that Minor was “frantic,”
and that Gabriel was slumped over inside the vehicle with blood
stains on his shirt and on his seat. The police officers also noted that
there were bullet holes in the driver’s side door, “the rear of the
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5 The 911 call was admitted and played for the jury at trial.
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vehicle’s driver’s side,” and the trunk of the car. The “back driver’s
side window was [also] shattered.” The police officers “immediately
began life-saving measures” on Gabriel and located a gunshot
wound “around his left nipple.” Gabriel was pronounced dead at the
scene.6 Gabriel’s 9mm handgun, which was registered in his name,
was located by law enforcement in the center console of his vehicle.
Kirkland testified that, when she and Nesbit left the gas
station, they got on “[I-]20” and drove for “maybe 20 minutes,” at
which point Nesbit pulled off the highway in an area with which
Kirkland “[was] not familiar.” According to Kirkland, Nesbit left his
car “[j]ust off the highway,” and they got into another car with
someone she did not know to “go home.” Kirkland could not recall if
Nesbit took the car keys or any gun with him, testifying that she
“never saw [Nesbit’s] gun at all.” Kirkland insisted that, while she
“heard the gunshots” at the gas station, she (1) did not see Nesbit
“retrieve the gun initially before firing rounds”; (2) did not see “him
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6 The medical examiner testified at trial that Gabriel died from “a
penetrating gunshot wound to the chest.”
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shooting back” at Gabriel; (3) did not “see the gun in [Nesbit’s] car
at all”; and/or (4) did not “see [Nesbit] with the gun after [they] got
out of the car” and left it just “off the highway.” According to
Kirkland, in addition to abandoning his car after the shooting,
Nesbit also got a “new phone number.”
Cobb County Police Lieutenant Zachary Stannard was one of
the lead detectives assigned to the investigation of this case.
Lieutenant Stannard testified that, on June 18, the day after the
shooting, a BOLO (“be on the lookout”) was issued by the Cobb
County Police Department for a person of interest and a “suspect
vehicle” — specifically, “an older model white Toyota Avalon” with a
“black front bumper.” According to Lieutenant Stannard, the police
department generated the BOLO based on information obtained
from the surveillance videos from the gas station, as well as images
taken from “motion[-]activated” “Flock license[-]plate readers”
positioned by law enforcement on “roadways and intersections”
throughout the metro-Atlanta area.7 After reviewing the images
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7 Lieutenant Stannard testified that Flock license-plate readers operate
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taken by the Flock license-plate readers in Cobb County and
surrounding counties, Lieutenant Stannard was able to locate
images of a white Toyota Avalon with a black front bumper, Georgia
tag number RLY5906, “[a]pproximately three miles” away from the
subject gas station at 9:47 p.m. on June 17. The same Toyota Avalon
was captured by a Flock license-plate reader later the same night at
10:05 p.m. in DeKalb County near McAfee Road and I-20, about 17
miles away from the gas station where the shooting occurred. The
vehicle was then captured one final time less than a minute later
heading in the opposite direction on McAfee Road. No additional
images of the white Avalon were taken after that timeframe.
Atlanta Police Detective Ron Sluss was qualified as an expert
at trial in “cellular mapping and cellphone analysis,” and he testified
regarding his review and analysis of Nesbit’s cell phone records,
which were obtained by search warrant during the investigation.
According to Detective Sluss, at 9:25 p.m. on June 20, 2017, Nesbit’s
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by taking “an image of the rear of the vehicle as well as the tag of the vehicle”
as it passes, and the cameras can “detect the letters and numbers on the tag[,]
as well as what [make and] type of vehicle it is.”
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cell phone was located “northwest of where the ultimate crime scene
would be.” At 9:46 p.m., Nesbit’s cell phone hit a tower
“encompass[ing] the area of the crime scene,” and a phone call was
placed to someone located in Decatur, DeKalb County. At 10:03 p.m.,
Nesbit’s cell phone received an incoming call while “in the area of
McAfee Road . . . in Decatur, Georgia.”
Lieutenant Stannard testified that he ran the license plate
number for the Toyota Avalon through the National Crime
Information Center and noted that it “was currently registered at
the time as a 1999 Toyota Avalon to a David Anthony Nesbit.”8
Additionally, Lieutenant Stannard found “a driver’s license number
associated with that vehicle registration,” which “also came back to
a David Anthony Nesbit with the same date of birth and the same
physical address, mailing address” as the car registration.
Lieutenant Stannard testified that the picture on the driver’s license
matched the photograph of the person in the Cobb County Police
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8 Nesbit’s father testified that his son drove a “white Avalon” for “at least
maybe three or four years.”
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Department’s BOLO from the surveillance videos at the gas station.
On this basis, Lieutenant Stannard obtained an arrest warrant for
Nesbit, which he provided to the other lead detective in the case,
Cobb County Police Detective Sara Penirelli.
Detective Penirelli testified that she provided the arrest
warrant for Nesbit to the United States Marshals Service, who
arrested Nesbit on June 30, 2017 at Kirkland’s apartment. U. S.
Marshals transported Nesbit to the Cobb County Police
Department, where he was advised of his Miranda9 rights and
interviewed by Detective Penirelli and Lieutenant Stannard. During
this interview, Nesbit denied any awareness of or involvement in the
shooting on June 20.
Shortly after Nesbit’s arrest, Detective Penirelli obtained a
search warrant for Kirkland’s apartment. During that search, police
officers found a wallet with Nesbit’s driver’s license and credit cards,
a 9mm handgun, and an “LG phone” which had been activated on
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9 See Miranda v. Arizona, 384 U. S. 436 (
86 SCt 1602, 16 LE2d 694)
(1966).
14
June 20, 2017. On June 30, Detective Penirelli obtained a search
warrant for Nesbit’s father’s residence — the residential address
that appeared on Nesbit’s driver’s license and motor vehicle
registration. During the search of that residence, Detective Penirelli
found insurance documents and an insurance cancellation notice for
a 1999 Toyota Avalon, Georgia tag number RLY5906, with the
insured’s name of David Nesbit, Jr., as well as the registration
information for the tag. Detective Penirelli showed Nesbit’s father
images from the gas station surveillance videos depicting the person
police officers believed to be Nesbit, and his father said, “He believed
it was his son.” Detective Penirelli testified that she tried to
interview Kirkland after the shooting and “attempted to call her
multiple times,” including going by her residence, but “did not
receive any contact back.”
The GBI firearms examiner, who testified as an expert in
firearms identification and analysis at trial, testified that she
examined 11 cartridge casings recovered during the investigation of
this case from Gabriel’s vehicle and the crime scene, and she
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determined that the casings were fired from two different 9mm
handguns. The firearms examiner confirmed that five of those
casings were fired from Gabriel’s handgun. However, the other six
casings — while fired from the same handgun — were not fired from
Gabriel’s handgun or the 9mm handgun found in Kirkland’s
apartment. The handgun from which the six 9mm shell casings were
fired was never located.
Nesbit contends that his trial counsel was constitutionally
ineffective in two ways: first, by failing to recognize, research, and
assert defense of habitation at trial; and second, by failing to object
to the State’s closing argument, during which the prosecuting
attorney purportedly gave her personal opinion about the credibility
of one of the State’s witnesses and Nesbit’s guilt in this case. We will
address each contention in turn, applying the constitutional
standard set forth in Strickland v. Washington, 466 U. S. 668 (
104
SCt 2052, 80 LE2d 674) (1984).
“To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
16
deficient, and that the deficient performance resulted in prejudice to
the defendant.” Moss v. State, 311 Ga. 123, 126 (2) (
856 SE2d 280)
(2021) (citing Strickland,
466 U.S. at 687-695 (III)). “To prove
deficient performance,” a defendant “must show that his counsel
performed in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.”
Ward v. State,
313 Ga. 265, 272-273 (4) (
869 SE2d 470) (2022)
(citation and punctuation omitted).
The reasonableness of counsel’s conduct is examined from
counsel’s perspective at the time of trial and under the
particular circumstances of the case, and decisions
regarding trial tactics and strategy may form the basis for
an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have
followed such a course.
Taylor v. State, 312 Ga. 1, 15-16 (6) (
860 SE2d 470) (2021) (citations
and punctuation omitted). See also Robinson v. State,
278 Ga. 31, 37
(3) (d) (
597 SE2d 386) (2004) (“As a general rule, matters of
reasonable trial tactics and strategy, whether wise or unwise, do not
amount to ineffective assistance of counsel,” and “[a] reviewing court
evaluates trial counsel’s performance from counsel’s perspective at
17
the time of trial.”) (citation and punctuation omitted). Our
assessment is an objective one, not based on the subjective views of
trial counsel. See Lane v. State, 312 Ga. 619, 623 (2) (a) (
864 SE2d
34) (2021) (noting that “we are not limited in our assessment of the
objective reasonableness of lawyer performance to the subjective
reasons offered by trial counsel for his conduct”) (citation and
punctuation omitted).
“To satisfy the prejudice prong, a defendant must establish a
reasonable probability that, in the absence of counsel’s deficient
performance, the result of the trial would have been different.” Moss,
311 Ga. at 126 (2). “If an appellant fails to meet his or her burden of
proving either prong of the Strickland test, the reviewing court does
not have to examine the other prong.”
Id. (citation and punctuation
omitted). And, “[i]n reviewing either component of the inquiry, all
factual findings by the trial court will be affirmed unless clearly
erroneous.” Winters v. State,
305 Ga. 226, 230 (4) (
824 SE2d 306)
(2019). See also Robinson v. State,
277 Ga. 75, 76 (
586 SE2d 313)
(2003) (“We accept the trial court’s factual findings and credibility
18
determinations unless clearly erroneous, but we independently
apply the legal principles to the facts.”).
Nesbit first contends that his trial counsel provided ineffective
assistance by failing “to recognize the applicability of the defense of
habitation to the facts of this case” and by failing “to research this
defense,” which is “more favorable to a criminal defendant than
general self-defense.” Nesbit further contends that “the defense of
habitation, when supported by at least slight evidence, is harder for
the State to disprove beyond a reasonable doubt” because, “unlike
the defense of justification, the habitation defense, in recognition of
the sanctity of a person in his [motor vehicle or home], allows the
use of deadly force in certain situations even if the occupant does not
fear death or great bodily injury.”
We see no merit to Nesbit’s contention that his trial counsel
was ineffective in this respect. OCGA § 16-3-23 provides that “[a]
person is justified in threatening or using force against another
when and to the extent that he or she reasonably believes that such
threat or force is necessary to prevent or terminate such other’s
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unlawful entry into or attack upon a habitation,” which includes a
motor vehicle.10 Id. See also OCGA § 16-3-24.1. However, we have
held that “deadly force may be used [in the defense of habitation
context] only when an ‘entry is made or attempted in a violent and
tumultuous manner’ or ‘for the purpose of committing a felony,’” but
the “use of deadly force” may not be used “when no entry is made or
attempted.” Brooks v. State, 309 Ga. 630, 636 (2) (
847 SE2d 555)
(2020) (quoting OCGA § 16-3-23 (1), (3); emphasis supplied).
Accordingly, for the defense of habitation to apply, “there would
need to be evidence that [the victim] was entering or attempting to
enter [the appellant’s habitation] at the time that [the a]ppellant
shot him.” Walker v. State,
301 Ga. 482, 486 (2) (b) (
801 SE2d 804)
(2017) (determining that “there was simply no evidence of an entry
or attempted entry by [the victim] into the [appellant’s] SUV when
[the a]ppellant opened fire”). See also Brooks,
309 Ga. at 636 (2)
(concluding that there was no evidence that the victims “entered”
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10 OCGA § 16-3-24.1 defines “habitation” as “any dwelling, motor vehicle,
or place of business.”
20
the appellant’s vehicle during the incident in question, and thus, the
defense of habitation was not available).
In this case, no evidence was presented at trial of any entry or
attempted entry by Gabriel or Minor into Nesbit’s vehicle. See
Walker, 301 Ga. at 486 (2) (b). Additionally, while testifying at the
hearing on Nesbit’s motion for new trial, Nesbit’s trial counsel
acknowledged that, generally, the “defense of habitation involves
defending from attempted entry or entry into a habitation,” and
based on the facts of this case, she did not consider “the defense of
habitation” as being “applicable.” Nesbit’s trial counsel further
testified that her focus was “consumed in [Nesbit’s] justified act of
protecting himself” and “his girlfriend,” and she requested jury
instructions on self-defense and justification, which were given by
the trial judge. Trial counsel emphasized that, at trial, her
“argument was based on self-defense and not the vehicle,” and she
felt that she was “able to get those instructions to get that argument
before the jury.”
Nesbit bears the burden of showing that his trial counsel’s
21
actions were “patently unreasonable,” and he has not done so.
Lockhart v. State, 298 Ga. 384, 386 (2) (
782 SE2d 245) (2016). Based
on the evidence presented at trial, Nesbit’s trial counsel recognized
that defense of habitation was not applicable here, see Walker,
301
Ga. at 486 (2) (b), and therefore his trial counsel was not deficient
for not raising it.
Nesbit next contends that his trial counsel was ineffective for
failing to object to the State’s closing argument, during which the
State purportedly opined about the credibility of Minor’s testimony,
Nesbit’s guilt, and the prosecutor allegedly provided a personal
opinion about the strength of the State’s case against Nesbit.
During Nesbit’s closing argument, he contended that
Kirkland’s trial testimony established that Gabriel fired the first shot
in this case. Nesbit’s trial counsel told the jury that
Kirkland took that stand blind, having never seen the
[surveillance] video[s]. [Minor] told y’all that he prepared
his testimony with [the prosecution]. You know, it also
makes a difference with how you’re treated. . . . [W]hen
you think about [Minor], remember he was prepared.
Nesbit’s trial counsel further stated:
22
[G]ood, bad or ugly, [Kirkland] told her truth. Good, bad
or ugly. You know, she spoke to the DA one day. They
never prepped her. They never showed her the video.
Because they don’t want you to believe her story. But her
story is just as important. What she went through is just
as important. But that’s when they just try to make you
not like him. And that’s not enough.
Nesbit’s trial counsel then told the jury that the State had the
authority to interview Kirkland, but failed to do so “[b]ecause they
were going for one side of the story.”
During the State’s final closing argument — apparently in
response to Nesbit’s assertion that the State had “coached [Minor] and
told him what to say, showed him the video” — the prosecutor
argued:
It is absolutely crazy to think that the State — that
myself, Ms. Stevenson — would not meet with our
witnesses before trial and understand what happened.
We weren’t there. It is so important that we understand
what happened before we come in this courtroom. That’s
why we meet with our witnesses. We have to know and
understand the facts before we can go to trial. Right? We
can’t just read things. We want the whole picture. I want
to look at the individuals myself. I want to hear what they
have to say. I want to make sure it makes sense. Right? I
want to make sure there is not an issue. Because if there
is an issue, we’re not going to be here. If I meet with
someone and I’m like this isn’t adding up, you are never
23
going to meet them. Because I’m not going to come in here
and present some case that I don’t believe happened in
the way that the witnesses are testifying.
At Nesbit’s motion-for-new-trial hearing, his trial counsel
testified that, while she felt “uncomfortable” when the State made
this argument, she did not object because she did not want to “cause[
] more attention negatively for Mr. Nesbit if [she] was overruled for
objecting during argument.” Nesbit’s trial counsel testified that she
also knew the trial court would instruct the jury — and ultimately
did instruct the jury — that closing arguments are not evidence.
Trial counsel further recognized that some of the prosecutor’s
remarks were in direct response to the statements she made during
Nesbit’s closing argument.
In the trial court’s order denying Nesbit’s motion for new trial,
the trial court credited the testimony of Nesbit’s trial counsel that
“she chose not to object during the State’s closing argument because
she did not want to call more attention to the prosecutor’s
statements,” and the trial court found that this decision did “not
constitute deficient performance.” We agree.
24
“A closing argument is to be judged in the context in which it
is made.” See Styles v. State, 309 Ga. 463, 470-471 (4) (
847 SE2d
325) (2020) (citation and punctuation omitted). “A prosecutor is
granted wide latitude in the conduct of closing argument,” and
“[w]ithin that wide latitude, a prosecutor may comment upon and
draw deductions from the evidence presented to the jury.” Gaston v.
State,
307 Ga. 634, 640 (2) (b) (
837 SE2d 808) (2020) (citation and
punctuation omitted). “Whether to object to a particular part of a
prosecutor’s closing argument is a tactical decision, and counsel’s
decision not to make an objection must be patently unreasonable to
rise to the level of deficient performance.” Smith v. State,
296 Ga.
731, 735-736 (2) (b) (
770 SE2d 610) (2015) (citations and
punctuation omitted).
Accordingly, here, to establish that his trial counsel performed
deficiently, Nesbit must show that, “under the circumstances, the
challenged action cannot be considered a sound trial strategy.” Zayas
v. State, 319 Ga. 402, 411 (3) (
902 SE2d 583) (2024) (citation and
punctuation omitted). And we have held that electing not to object
25
to a closing argument that is not unduly prejudicial or clearly
improper to avoid drawing negative attention to the defendant or
highlighting unfavorable evidence is a reasonable trial strategy. See
Young v. State, 305 Ga. 92, 97-98 (5) (
823 SE2d 774) (2019)
(concluding that trial counsel’s strategy of weighing the “upside of
arguably objectionable [comments]” against “its downside” and
ultimately deciding not to object to avoid drawing negative attention
to the defendant was reasonable). Moreover, in this case, the
prosecutor was merely responding to comments Nesbit’s trial
counsel made during Nesbit’s closing argument about the State’s
allegedly disparate treatment of Kirkland and Minor and was not
opining about Kirkland’s credibility or giving a personal opinion
about the strength of the State’s case against Nesbit. See Pyne v.
State,
319 Ga. 776, 786 (2) (
906 SE2d 755) (2024) (explaining that a
prosecutor’s closing argument may, among other things, respond to
points made in the defendant’s closing argument).
Based on the foregoing, we conclude that Nesbit failed to meet
his burden of showing that his trial counsel was constitutionally
26
deficient for failing to object to the State’s comments during closing
argument because, as the record reflects, his trial counsel’s decision
under the circumstances was a reasonable one. See Young, 305 Ga.
at 97-98 (5). See also Clark v. State,
300 Ga. 899, 903 (2) (b) (
799
SE2d 200) (2017). Therefore, this ineffective assistance of counsel
claim also fails.
Judgment affirmed. All the Justices concur.
Decided March 4, 2025.
Murder. Cobb Superior Court. Before Judge Hill.
Benjamin D. Goldberg, for appellant.
Flynn D. Broady, Jr., District Attorney, Elizabeth M. York,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.
Malcolm, Senior Assistant Attorneys General, Elizabeth H. Brock,
Assistant Attorney General, for appellee.
27
