Wimberly v. State, 302 Ga. 321

Background

On July 29, 2014, William Leroy Wimberly (appellant) was involved in an altercation at Josh and Brittney’s home that culminated in the death of Christopher Strickland (the victim).
Earlier, Wimberly had threatened to kill Josh over disciplining Wimberly’s granddaughter; he arrived at the home intoxicated and a fight ensued during which a pocket knife was produced and Wimberly was ejected.
Wimberly returned in a truck; after a porch confrontation the victim stood between Josh and Wimberly. Wimberly had his hands behind his back, then produced a handgun. A struggle occurred; the victim ended up on the ground with a single gunshot wound to the chest fired at arm’s length.
Josh wrestled control of the gun, then shot Wimberly; Josh later told others the victim said Wimberly shot him. The victim died at the scene.
At an August 2015 bench trial Wimberly was convicted of felony murder, aggravated assault, and firearm possession during a felony; sentenced to life plus five years (aggravated assault count merged). Wimberly appealed asserting insufficient evidence, ineffective assistance of counsel, and entitlement to a new trial based on newly discovered evidence.

Issues

Issue	Wimberly's Argument	State's Argument	Held
Sufficiency of evidence to prove Wimberly fired the fatal shot	Josh didn’t see Wimberly fire; multiple people were struggling over the gun so identity of shooter was uncertain	Evidence (witness testimony, struggle over gun, gun fired at arm’s length into victim’s chest, victim’s statement that Wimberly shot him) supports finding Wimberly fired the shot	Affirmed — evidence sufficient for trier of fact to conclude Wimberly fired the shot (Jackson standard)
Ineffective assistance for failing to call four trial witnesses	Counsel omitted convenience-store witnesses, a driver/passenger witness, and Wimberly’s father whose testimony would undermine prosecution narrative	Counsel’s decisions on witness selection were strategic and reasonable; testimony of those witnesses was cumulative, equivocal, or would not likely change outcome	Affirmed — no deficient performance or prejudice shown (Strickland standard)
Ineffective assistance for not objecting to testimony about prior threats (404(b) notice)	Such prior-threat testimony was inadmissible 404(b) evidence without proper notice	The evidence was intrinsic/inextricably intertwined with the charged conduct and therefore admissible without 404(b) notice; probative value not substantially outweighed by prejudice	Affirmed — no counsel error in failing to object
New trial based on post‑trial testimony that Josh confessed to shooting his brother	Witness reported Josh said he shot his brother and thought he shot “old Leroy”; Wimberly argued this was new, material evidence that would change the verdict	The alleged post‑trial statement, even if credited, would only serve to impeach Josh’s credibility and would not meet Timberlake’s sixth requirement (cannot be solely impeaching)	Affirmed — motion for new trial properly denied because the evidence was only impeaching (Timberlake factors)

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence)
Strickland v. Washington, 466 U.S. 668 (two‑part test for ineffective assistance of counsel)
Timberlake v. State, 246 Ga. 488 (requirements for new trial based on newly discovered evidence)
Dougherty v. State, 341 Ga. App. 120 (appellate review standard on bench trial)
Dunn v. State, 291 Ga. 551 (reciting Strickland standard)
McDuffie v. State, 298 Ga. 112 (trial counsel’s witness‑calling is strategic)
Washington v. State, 294 Ga. 560 (strategic decisions not per se deficient)
Clements v. State, 301 Ga. 267 (presumption that counsel’s choices are strategic)
Daughtry v. State, 296 Ga. 849 (prejudice inquiry under Strickland)
Brewner v. State, 302 Ga. 6 (intrinsic evidence and prejudice balancing)
Chance v. State, 291 Ga. 241 (newly discovered evidence that only impeaches is insufficient)
Brooks v. State, 298 Ga. 722 (definition of intrinsic/inextricably intertwined evidence)