THE STATE v. TEDDER
S18A1137
Supreme Court of Georgia
March 11, 2019
Reconsideration denied March 27, 2019
305 Ga. 577
BETHEL, Justice.
FINAL COPY. Murder. Fulton Superior Court. Before Judge Goger. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Marc A. Mallon, Arthur C. Walton, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant. Geerdes & Associates, Holly L. Geerdes, Kevin L. Marshall, for appellee.
Tedder was tried alone before a jury from October 26 to October 28, 2015. Eggleston and Tabb pleaded guilty and testified for the State regarding the series of events that culminated in Glass‘s death. Tabb testified that, on the afternoon of September 8, 2014, she was hanging out with her boyfriend Glass and his friend Tedder. During that time, Glass received a call from Eggleston, who wanted a ride to a College Park apartment complex.1 Tabb, Glass, and Tedder then got into Tabb‘s vehicle and drove to pick up Eggleston. When the four arrived at the College Park apartment complex, Eggleston exited the vehicle to speak to a group congregated around several parked cars. Shortly
Tabb testified that she followed the cars to a house near Godby Road, where all three cars parked, and Eggleston again exited the car to speak with people outside the house. When he returned, Eggleston instructed Tabb to continue following the other two cars. The other cars drove erratically, and, when Tabb would lose track of them, Eggleston used his phone to communicate with persons in the other cars to find out where to meet up. No one in the car questioned what was happening or asked to be let out of the car. According to Tabb, she continued driving, directed by Eggleston, for about twenty minutes, during which time she came to the conclusion that the purpose of the drive was to locate a certain group of people.2 At some point during the
When the light turned green, Tabb drove the car through the intersection, and, shortly thereafter, Tabb heard gunshots ring from Glass‘s weapon.4 When Tabb heard Glass fire his gun, she also saw, in her peripheral vision, Eggleston stand up through her open sunroof. Tabb could not see what Tedder was doing or whether he had a gun due to a large laundry basket obstructing her vision. During the commotion, she also recalled hearing someone yell, “They were shooting back, they were shooting back.” Tabb did not see that Glass was wounded until after she drove away from the shooting.
Eggleston testified that he and Glass were friends and fellow members of “Yung Fame,” which Eggleston characterized as a rap group but which a detective with the College Park Police Department characterized as having been known to be involved in “gang activity.” Eggleston stated that Tedder was not a member of Yung Fame, that he did not know Tedder, and that he
In addition to Tabb, Eggleston, and Gifford, the State offered as witnesses several crime scene technicians, the investigating officers, a firearms and ballistics expert, and the medical examiner. Detective Helio Garcia, who works in the criminal investigation division of the College Park Police Department, assisted in the processing of Tabb‘s vehicle. He testified that he collected a .40-caliber shell casing from beneath the front passenger seat, a .22-caliber shell casing from behind the front passenger seat, and a second .22-
Dr. Michael Heninger, the forensic pathologist from the Fulton County Medical Examiner‘s Office, concluded that Glass‘s cause of death was a gunshot wound to the back of his head. Though Dr. Heninger was unable to locate a bullet during the autopsy, he testified that the entry wound was circular and “smaller than average” when compared to the typical wound inflicted by a handgun and that the angle of the shot was “straight-on.” On cross-examination, Dr. Heninger admitted that, due to the mobility of the head, “the shooter could be . . . in a large area behind [Glass].” Tedder‘s trial counsel also asked Dr. Heninger whether a person in Eggleston‘s position, standing
The State also presented the testimony of the College Park Police Department officer who responded to the dispatch call from the hospital to which Glass was taken after the shooting. The officer spoke briefly with Tedder, who was standing by the vehicle outside the hospital, before going into the hospital to speak with Eggleston and Tabb. When the officer returned to the vehicle, he found that Tedder “just took off.” On cross-examination, the officer admitted that he never gave Tedder any instruction to remain by the vehicle and wait for him, explaining, “I didn‘t say if he could leave or not; I just went inside to speak to the other occupants of the vehicle.”
Finally, the State offered as a witness Omar Stuart, an ex-boyfriend of Tedder‘s sister. Stuart claimed that he made contact with Tedder after learning of the shooting, and Tedder asked Stuart for a ride. Stuart, accompanied by his father, picked up Tedder and took Tedder back to Stuart‘s home. Stuart testified that, upon arriving at his home, Tedder gave him two pistols. Stuart told Tedder that he did not want the pistols and did not ask Tedder for any details regarding the guns, but proceeded to put the pistols in a shoebox and to
Based on the totality of the evidence presented at trial, the State argued that Tedder, sitting behind Glass, was the only person who could have fired the shot that killed Glass. Defense counsel argued that Tedder was merely present in the vehicle, that he did not participate in planning or executing the shootout, and that he was not armed. Tedder‘s counsel also attacked Eggleston‘s credibility, calling him a “liar” and pointing out the inconsistencies in Eggleston‘s testimony about Tedder‘s having a gun. Tedder‘s counsel further argued, consistent with Dr. Heninger‘s testimony on cross-examination, that Eggleston fired the fatal shot. Ultimately, however, the jury found Tedder guilty on all charges.
In setting aside the jury‘s verdict, the trial court concluded only that Tedder was denied the effective assistance of counsel based on his trial counsel‘s failure to present the testimony of a crime scene expert. As to prejudice, the trial court determined that, had defense counsel provided the jury
The State asserts that the trial court erred in finding that Tedder received ineffective assistance of counsel and granting Tedder a new trial. In the State‘s view, whether Tedder, one of his co-defendants, or someone outside the car fired the fatal shot is inconsequential because, even if he did not shoot Glass, Tedder was liable as a party to the crime, see
A party claiming a violation of his Sixth Amendment right to effective assistance of counsel bears a heavy burden. He must show both that his counsel‘s performance was deficient and that the deficient performance so prejudiced his defense that a reasonable probability exists that “but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U. S. 668, 694 (II) (B) (104 SCt 2052, 80 LE2d 674) (1984). In reviewing the trial court‘s order on an ineffective assistance of counsel claim, “we accept the trial court‘s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hulett v. State, 296 Ga. 49, 60 (766 SE2d 1) (2014). And finally, “[i]f an appellant fails to meet either prong of the Strickland test, it is not incumbent upon this Court to examine the other prong.” (Citation and punctuation omitted.) Sloans v. State, 304 Ga. 363, 366 (2) (818 SE2d 596) (2018).
The trial court determined that trial counsel‘s performance was deficient because of counsel‘s failure “to obtain and present critical expert testimony that would have rebutted the State‘s entire theory of the case and evidence that [Tedder] was the only person that could have shot [Glass].” At trial, however, the State consistently pursued two theories of criminal liability — one contending that Tedder was directly liable as the shooter and one implicating Tedder as a party to the crime. In preparing to defend against these theories at trial, defense counsel explained at the motion for new trial hearing, he spoke with Eggleston and Tabb as well as the few additional lay witnesses who were willing to speak with him about the shooting. Despite knowing the State‘s liability theories and that the State intended to call at least two expert
During the motion for new trial hearing, defense counsel agreed that he knew about the State‘s theory of the case, evidence, and expert and yet, he never bothered [to procure] or even thought of procuring an independent defense expert to rebut the State‘s case against his own client. . . . [D]efense counsel provided no reasonable explanation for failing to present expert testimony and even worse, it never entered his mind to even consider procuring and presenting expert testimony. Based on all of the circumstances and facts available to defense counsel and his testimony at [the motion for new trial hearing], his failure to present expert testimony was not reasonable, tactical, or strategic[.]
After reviewing the record, we have reached a different conclusion.
When considering whether trial counsel performed deficiently, “although the thinking of the lawyer may be relevant to our inquiry, we must remember that our inquiry properly is focused on what the lawyer did or did not do, not what he thought or did not think.” (Citation and punctuation omitted.) Powell v. State, 291 Ga. 743, 748 (2) (b), n.2 (733 SE2d 294) (2012). In other words, “it is the conduct of the lawyer, not his thinking, that we assess for reasonableness, even though the thinking of the lawyer may inform the reasonableness of his conduct.” (Emphasis in original.) Id. Even if the failure
The fact that Tedder‘s trial counsel “failed to articulate any strategic reasons for his failure to [present expert testimony] makes no difference” because our inquiry is focused on “the objective reasonableness of counsel‘s performance, not counsel‘s subjective state of mind.” (Punctuation omitted.) Jones v. State, 292 Ga. 593, 601 (7) (d) n.7 (740 SE2d 147) (2013) (quoting Harrington v. Richter, 562 U. S. 86, 110 (IV) (A) (1) (131 SCt 770, 178 LE2d 624) (2011)). Here, it is sufficient that trial counsel pursued a viable and reasonable defense theory that was supported by the evidence. Indeed, the theory that trial counsel pursued could have led the jury to believe Eggleston‘s testimony about Tedder‘s not being associated with Yung Fame and its plans to retaliate for the shooting of one of its members — testimony important to Tedder‘s not being convicted as a party to the crimes, whatever the source of the gunfire — while also believing that Eggleston would lie about Tedder‘s being armed so Tedder would be blamed for shooting Glass, rather than Eggleston‘s admitting that he inadvertently shot his fellow gang member while clambering up through and down from the sunroof of Tabb‘s vehicle. The fact that the chosen strategy failed while another reasonable strategy remained
Judgment reversed and case remanded. All the Justices concur.