Henderson v. State

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.

In the Supreme Court of Georgia

Decided: August 12, 2025

S25A0849. HENDERSON v. STATE

COLVIN, Justice.

Appellant Sean Henderson appeals his convictions for malice

murder and other crimes related to the shooting death of Derrick

Hinton. 1 On appeal, Appellant argues that the trial court erred when

it failed to instruct the jury on the lesser offense of voluntary

1 The crimes occurred on August 29, 2019. On November 21, 2019, a

DeKalb County grand jury returned a four-count indictment against Appellant
for malice murder (Count 1), felony murder (Count 2), aggravated assault
(Count 3), and possession of a firearm during the commission of a felony (Count
4). A jury trial was held from February 7 to 9, 2022, and the jury found
Appellant guilty on all counts. The trial court sentenced Appellant to life for
malice murder (Count 1) and five consecutive years in prison for possession of
a firearm during the commission of a felony (Count 4). All other counts merged
or were vacated by operation of law.
Appellant filed a motion for new trial through new counsel on March 7,
2022, and amended his motion through different counsel on May 5, 2024. The
trial court denied Appellant’s motion for new trial on May 15, 2024. Appellant
filed a timely notice of appeal to this Court on May 17, 2024. The appeal was
docketed to this Court’s April 2025 term and was submitted for a decision on
the briefs.
manslaughter, that the prosecutor’s comments on his statement

that he would speak with an attorney during a pretrial interrogation

constituted reversible error, and that trial counsel was ineffective

for failing to object to testimony concerning his invocation of the

right to counsel and for failing to request a curative instruction. We

affirm Appellant’s convictions for the reasons explained below.

In August 2019, Appellant and Hinton lived in different rooms

in the same motel. Hinton lived there along with his girlfriend,

Precious Hector, and her three daughters, the youngest of whom she

shared with Hinton. According to Appellant, Hector approached him

one day and asked to purchase some marijuana. Appellant testified

that he refused and that this refusal created a rift between

Appellant and Hinton. According to Appellant, this rift was

apparent on at least three subsequent occasions. On the first

occasion, Appellant was crossing a street to go to a store when he

saw Hinton. According to Appellant, Hinton looked at him

“violently” and “moved into [a] position” that temporarily blocked

Appellant from opening the store’s door “all the way[.]” On the

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second occasion, Appellant was waiting at a bus stop when Hinton

walked towards him from across the street, staring at him

“violently” and “up and down” in a manner that felt “threatening” to

Appellant. The third occasion took place at the motel while

Appellant was getting ice from a machine. According to Appellant,

Hinton came and “walk[ed] right up on [Appellant’s] shoulder” and

“put his chest . . . or . . . his stomach . . . on [Appellant,]” causing

him to drop his ice. Appellant testified that when he turned around,

both he and Hinton stared at each other in a “threatening” manner,

and that as Hinton turned away, Hinton “lift[ed] up his elbow” as if

to hit Appellant. Appellant testified that each run-in with Hinton

caused him to wonder whether he needed to “defend [him]self.”

Sometime later that same month, Appellant took his gun with

him to pay his motel bill. He testified that, on the way, he saw that

Hector and Hinton’s door was “open” and thought he would go

“check[ ] on [Hinton].” Appellant further testified that he saw

Hinton sweeping inside. As Appellant stood “in the doorway[,]” he

asked Hinton if “everything [was] all right[.]” Hinton responded in

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the affirmative, and Appellant asked whether the two could speak

further to “iron . . . out” their “differences[.]” Appellant testified that

Hinton began to grow angry, that he approached Appellant with a

broom, and that Appellant began to feel “afraid,” especially because

Hinton was significantly larger than him. According to Appellant,

Hinton was “doing all this yelling, causing all this commotion,” and

“deliberately” “spitting out of his mouth while he was talking[.]”

Appellant further testified that he “couldn’t believe” that Hinton

was “taking [the situation] th[at] far.” At some point during the

encounter, Appellant dropped his jacket. As Appellant reached down

to pick it up before making to leave, Hinton “stepped in front of

[him].” Appellant picked up his jacket “quick[ly]” and then put his

hand into his backpack, where he had stored his gun. Appellant

testified that when Hinton noticed that Appellant had a gun, Hinton

said, “I don’t give a f**k.” Appellant further testified that, in that

moment, the men were “face-to-face[,]” and it was “a race” between

Hinton “hitting [him]” and Appellant “defending [him]self.”

According to Appellant, he shot Hinton as Hinton was “in motion”

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with the broom.

P. H., Hector’s teenage daughter was in the room with Hinton

during the altercation. According to P. H., it appeared as though

Appellant had no particular “subject” to discuss with Hinton. She

described Appellant’s voice as “soft” and “faded at first” as he asked

Hinton questions along the lines of, “Are you okay man?” “Are you

fine?” and “How’s your day going?” P. H. further testified that

Hinton responded, “No, I’m okay, man, I just woke up[.]” Up to that

point, P. H. testified, there was “no argument” until Appellant told

Hinton, “You look like something’s wrong with you” and then asked

Hinton, “What’s wrong with your face[?]” P. H. further testified that

Hinton “got weird by it” and “got real loud[,]” questioning why

Appellant kept asking him what was “wrong” with him. According

to P. H., as the conversation between Hinton and Appellant got

louder, she went toward the door where Hinton and Appellant were

standing. P. H. testified that she did not see the entire encounter,

but she reported hearing four gunshots and seeing the final shot,

which she said hit Hinton in the stomach once “he got to the

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ground[.]” According to P. H., when Hinton fell at her feet, she saw

Appellant’s “gun[,]” “face[,]” and distinctive gait as he walked away.

P. H. also testified that she identified Appellant in a photograph as

the shooter for law enforcement officers. And at trial, Hector, who

was on the other side of the motel at the time of the shooting,

testified that she saw Appellant walking away from the scene after

hearing gunshots.

The medical examiner testified that Hinton sustained three

gunshot wounds: one to the chest, one to the hand, and one to the

left side of the back. According to the medical examiner, Hinton died

of a gunshot wound to the torso shortly after the shooting.

Appellant testified at trial that his acquaintance, Brandon

Brooks, helped him move out of his motel room and into another

motel the day after the shooting. Brooks testified that, on the ride to

the new motel, Appellant told Brooks that he “got into a scuffle with

a guy” and that he “basically, had to protect himself[.]” But Detective

J.B. Williams testified that Brooks’s account of the discussion

during the car ride was different in his pretrial interview with him.

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Detective Williams’s interview with Brooks was played in open

court, and in it, Brooks and Williams engaged in the following

colloquy:

DETECTIVE WILLIAMS: Alright, tell me exactly what
he told you.
BROOKS: [H]e beat around the bush. He didn’t tell me
too much details. He literally said, “I got in it with this
dude, and then I seen him one day, and he said something
smart, so I busted at him six times.”
DETECTIVE WILLIAMS: Okay. And that was his exact
words?
BROOKS: Yep.

Appellant was arrested shortly after he and Brooks arrived at

the second motel. Law enforcement officers found several items in

Appellant’s room, including a backpack and a gun that was later

identified as the murder weapon.

1. Appellant contends that the trial court erred when it failed

to instruct the jury on the lesser offense of voluntary manslaughter

upon request. We disagree.

Under Georgia law, a person commits the offense of voluntary

manslaughter when he or she “causes the death of another human

being under circumstances which would otherwise be murder” and

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“acts solely as the result of a sudden, violent, and irresistible passion

resulting from serious provocation sufficient to excite such passion

in a reasonable person[.]” OCGA § 16-5-2 (a). “A trial court must

grant [a] defendant’s request for a charge on . . . voluntary

manslaughter if there is any evidence, however slight, to support

such a charge.” Allen v. State, 319 Ga. 415, 419–20 (2024) (citation

and punctuation omitted). We have held that

a charge on voluntary manslaughter is warranted only
where it can be shown that the accused was so influenced
and excited that he reacted passionately rather than
simply in an attempt to defend himself. A charge on
voluntary manslaughter is not available to a defendant
whose own statement unequivocally shows that he was
not angered or impassioned when a killing occurred, and
when the other evidence does not show otherwise.

Ward v. State, 318 Ga. 884, 893 (2024) (citations omitted). And we

have further held that “[n]either fear that someone is going to pull

a weapon nor fighting are the types of provocation which demand a

voluntary manslaughter charge.” Allen, 319 Ga. at 426 (citation and

punctuation omitted). This is not to say that “a defendant’s claim of

self-defense . . . preclude[s] an alternative claim of voluntary

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manslaughter.” Id. As we have made “clear,” when “there is some

evidence to support more than one theory, a defendant who pursues

alternative defense theories is entitled to requested charges on both

theories.” Id. at 427 (citation and punctuation omitted). But, as

relevant here, for a voluntary manslaughter charge to be warranted,

there must be at least “slight evidence that the defendant, in killing

the victim, acted under a serious provocation that could excite a

sudden, violent, and irresistible passion in a reasonable person.”

Anderson v. State, 319 Ga. 56, 61 (2024) (citations and punctuation

omitted). And “words alone, regardless of the degree of their

insulting nature, will not in any case justify the excitement of

passion so as to reduce the crime from murder to manslaughter.” Id.

at 443 n.25.

Here, the trial court did not err in failing to charge the jury on

voluntary manslaughter because Appellant’s own testimony showed

that, at most, he was fearful and attempting to defend himself when

he shot Hinton, not that he was angered or impassioned. Appellant

testified that there was a “race” between Hinton hitting him and

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Appellant “defending [him]self.” He further testified that he was

“afraid, threatened,” and of the belief that Hinton might “beat [him]

up or beat [him] with the broom.” Moreover, there was no evidence

that Appellant was provoked in a way that supported a voluntary

manslaughter instruction. Accordingly, the trial court was not

required to charge the jury on voluntary manslaughter. See Ward,

318 Ga. at 891–93 (holding that a voluntary manslaughter charge

was not warranted when the appellant denied shooting the victim

out of “heat of passion” and instead testified that it was “him or me”

and that he shot the victim because he was “scared for his life” after

the two “tussled” and the victim had a gun (punctuation omitted));

Williams v. State, 306 Ga. 717, 721 (2019) (holding that a voluntary

manslaughter charge was not warranted when the evidence showed

that the defendant “was attempting to repel an attack, not that he

was so angered that he reacted passionately” (citation omitted));

Burke v. State, 302 Ga. 786, 790–91 (2018) (“[A]cting out of fear of

bodily harm is not the same as acting in the heat of passion, and

only evidence of the latter supports a voluntary manslaughter

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conviction.”); Baugh v. State, 293 Ga. 52, 55 (2013) (holding that no

voluntary manslaughter instruction was warranted when, according

to the appellant, he shot the victim out of “reflex” after the victim

“fir[ed] a gun in his direction”).

Appellant, however, compares his case to Webb v. State, 284

Ga. 122 (2008), to support his argument that the trial court erred by

failing to charge the jury on voluntary manslaughter. Specifically,

Appellant argues that “[w]ords connected with other acts or

provocative conduct, such as aggressive behavior or physical

violence, can form the basis of the required ‘slight’ evidence.” In

Webb, trial evidence showed that the defendant “overreacted” and

fatally stabbed one of his house guests after a “confrontation” arose

between them, and we held that the trial court erred in failing to

give a voluntary manslaughter charge. Id. at 126.

Appellant argues that his case is similar to Webb in that there

is “ample evidence that [he] and Hinton were arguing,” that Hinton

blocked Appellant from leaving, and that Appellant believed that

Hinton was going to “beat” him with a broom. Webb, however,

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contains a key fact that Appellant lacks: evidence that the defendant

reacted out of passion. Webb admitted to “overreact[ing]” in his

police statement. Webb, 284 Ga. at 126 n.4. And that admission, in

addition to evidence of the confrontation, constituted slight evidence

that Webb acted out of heat of passion. Id. Here, on the other hand,

no evidence showed that Appellant reacted solely out of passion. See

Tarpley v. State, 298 Ga. 442, 445 (2016) (holding that a voluntary

manslaughter charge was not warranted when “[the appellant’s]

statements to police and trial testimony d[id] not indicate that he

killed [the victim] out of some irresistible passion — whatever the

source of that passion — but, instead, that the killing occurred

because [the appellant] was ‘very afraid’ of [the victim] that night”).

Accordingly, Webb is factually distinct, and Appellant’s reliance on

it is unavailing.

Appellant also cites Washington v. State, 249 Ga. 728 (1982),

for the proposition that evidence of a victim’s ongoing conduct

toward the accused can support a voluntary manslaughter charge.

See id. at 730 (holding that the trial court erred in failing to give a

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voluntary manslaughter instruction when the victim cut the neck of

Washington’s son and days later, “was continuing to make threats

and taunts against the life of [Washington’s] son” (emphasis

supplied)). Appellant points to his three previous encounters with

Hinton and claims that, at the time of the shooting, Hinton was

exhibiting some of the same threatening behavior he had exhibited

in the past. And Appellant asserts that, as in Washington, the jury

should have been instructed on voluntary manslaughter.

Washington is distinguishable from the present case, however,

and does not support Appellant’s claim that the trial court erred in

failing to give a voluntary manslaughter charge. In Washington, we

held that the trial court erred in failing to give a voluntary

manslaughter instruction when there was evidence that the victim

made threats against the Appellant’s son’s life. Washington, 249 Ga.

at 730. But here, unlike in Washington, there is no evidence that

Hinton made threats against any of Appellant’s loved ones, which

might generate a passion sufficient to warrant an instruction on

voluntary manslaughter. Compare Allen v. State, 319 Ga. 415, 418,

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423 (2024) (holding that a charge on voluntary manslaughter was

warranted when there was evidence amounting to a reasonable

belief that adulterous conduct had occurred between the victim and

the appellant’s wife, including evidence that when the appellant

asked the victim why he, as a married man, was “f**king up” the

appellant’s family, the victim responded, “man, f**k you” with a

“smirk on his face”); Scott v. State, 291 Ga. 156, 157 (2012) (holding

that a voluntary manslaughter charge was warranted when the

“appellant proffered evidence supporting an inference that he shot

the victim in the heat of passion during a confrontation about the

victim’s molestation of [the] appellant’s niece”). Accordingly,

Washington does not support Appellant’s claim.

2. Appellant also argues that the trial court erred when it

permitted the prosecutor to ask a detective questions about

Appellant’s statement made during his interrogation that he would

“talk to” an attorney. Appellant further asserts that the trial court

erred when it failed to give a curative instruction. These claims fail.

During the direct examination of Detective Chris Tappan, the

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prosecutor played an audio recording of Appellant’s interview with

him and another detective after Appellant was taken into custody.

The recording captured Appellant’s oral waiver of his rights under

Miranda v. Arizona, 384 US 436 (1966), prior to the interview, as

well as the detectives’ assurance that Appellant could “stop” the

interrogation “whenever [he] want[ed] to.” The recording further

revealed that Appellant answered the detectives’ questions for

approximately 20 minutes without hesitation. But when a detective

asked Appellant, “[W]hen was the last time you saw [Hinton]?”

Appellant responded, “Imma talk to a lawyer about that, the last

time I saw him.” The interrogation continued:

DETECTIVE: Are there any other questions you want to
answer, or do you want to refer to an attorney?
APPELLANT: If you got any questions for me — if I feel I
should talk to a lawyer, then I’ll just let you know.
...
DETECTIVE: Have you shot the — gun that you have
recently?
APPELLANT: I’ll talk to a lawyer about that.
DETECTIVE: I mean, not necessarily at a person.
Have you just discharged it recently?
APPELLANT: I’ll talk to a lawyer about that.
...
DETECTIVE: [W]hat made you leave the [motel]
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yesterday?
APPELLANT: What made me leave? I’ll talk to a lawyer
about that.

A detective asked Appellant only two other general questions about

how he was able to get back into the motel the day after the shooting,

which Appellant answered without hesitation. After Appellant

answered those questions, the detective stated that it appeared

Appellant was beginning to “not want[ ] to answer a lot of

questions[.]” And Appellant responded, “I’ll just talk to an attorney

and see where it goes from there.” The detectives did not ask

Appellant any other questions past that point of the recording. 2

After the recording was finished playing, the prosecutor

examined Detective Tappan as follows:

PROSECUTOR: It’s your understanding that at that time
he invoked his right to an attorney.
DETECTIVE TAPPAN: That’s — it depends on your
interpretation of what he just said.
PROSECUTOR: He did invoke his rights to an attorney

2 Appellant asserts that his statement that he would “talk to” an attorney

was an invocation of his right to counsel. And the State does not contest that
Appellant invoked that right. Accordingly, we assume without deciding that
Appellant’s statement that he would “talk to” an attorney invoked a
constitutional right which prohibited the State from using his silence against
him.
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at that time; Correct?
DETECTIVE TAPPAN: He said I need to talk to a lawyer
about that, specifically, about that question, which he did
not want to answer the question.

Trial counsel did not object to this line of questioning during trial.

The United States Supreme Court has held that when a

defendant is taken into custody, prior to being questioned, he must

be “warned . . . that he has the right to remain silent[.]” Miranda,

384 U.S. at 479. “To use a defendant’s custodial statements in its

case-in-chief, the State must show that the defendant was advised

of his Miranda rights and that he voluntarily, knowingly, and

intelligently waived them.” Hinkson v. State, 310 Ga. 388, 400 (2020)

(citation omitted). “[T]he use for impeachment purposes of [an

accused’s] silence, at the time of arrest and after receiving Miranda

warnings, violate[s] the Due Process Clause of the Fourteenth

Amendment.” Doyle v. Ohio, 426 US 610, 619 (1976). “With respect

to post-Miranda warnings ‘silence,’ . . . silence does not mean only

muteness; it [also] includes the statement of a desire . . . to remain

silent until an attorney has been consulted.” Wainwright v.

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Greenfield, 474 US 284, 295 n.13 (1986).

(a) Appellant argues that the prosecutor’s questions — and the

detective’s response — violated Appellant’s due process rights under

Doyle. Specifically, Appellant asserts that “twice” the State

“intentionally elicited” testimony meant to “imply his guilt — that

he was willing to speak with law enforcement until the topic of

Hinton came up, at which point he wanted to speak with a lawyer,

because he had done something wrong.”

Because Appellant failed to object during trial and preserve

this specific issue for appeal, we review only for plain error.3 See

Holloway v. State, 320 Ga. 668, 670 (2025) (reviewing the appellant’s

3 Appellant filed a motion in limine to suppress Appellant’s statement to

Detective Tappan on the ground that it was “not freely and voluntarily given
and that [he] was not informed and/or did not understand” his rights under
Miranda. While Appellant’s motion in limine challenged the admission of
Appellant’s statement for the aforementioned reasons, it did not specifically
challenge the admission of testimony pertaining to Appellant’s invocation of
the right to counsel for impeachment purposes in violation of Doyle.
Accordingly, our review is limited to plain error. See Madera v. State, 318 Ga.
593, 595 n.3 (2024) (“Although a party does not waive an error by failing to
object to admission of evidence after a motion in limine is denied, this rule
cannot be invoked to preserve a different, if perhaps related, error.” (citation
and punctuation omitted) (quoting Williams v. Harvey, 311 Ga. 439, 452
(2021))).
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constitutional claim only for plain error when the appellant “failed

to object to the trial court’s actions or otherwise seek to exclude th[e]

evidence at trial”); Dunbar v. State, 309 Ga. 252, 256 (2020)

(applying the plain error standard of review when the appellant “did

not object to the trial court on the constitutional grounds she” raised

on appeal). To show plain error, an appellant

must point to an error that was not affirmatively waived,
the error must have been clear and not open to reasonable
dispute, the error must have affected his substantial
rights, and the error must have seriously affected the
fairness, integrity or public reputation of judicial
proceedings.

Render v. State, 320 Ga. 890, 899 (2025) (citation and punctuation

omitted). “If one prong of the plain error test is not satisfied, we need

not address the other prongs of the test.” Baker v. State, 319 Ga. 456,

462 (2024).

Here, the trial court did not plainly err because Appellant has

not shown that the alleged error likely affected the outcome of his

trial. In light of the strong evidence against him, it is unlikely that

the detective’s testimony about Appellant wanting to speak with a

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lawyer had an effect on the jury’s verdict. See Henderson v. State,

317 Ga. 66, 80 (2023) (holding that the admission of a statement

which the defendant contended violated his Confrontation Clause

rights “was unlikely to have affected the outcome of the trial” given

the “otherwise strong case against [him]”); Jones v. State, 317 Ga.

466, 473 (2023) (holding that, “[e]ven assuming . . . it was clear error

to admit the portions of [a] video recording that [the appellant]

contend[ed] contained commentary on his silence . . . any error did

not affect [his] substantial rights” because the appellant’s “silence in

the face of the investigators’ questions and comments was

cumulative of other properly admitted evidence at trial and was

harmless in light of the substantial evidence of [his] guilt”). This

evidence included that Appellant, while armed with a gun, took it

upon himself to “check[ ] on” Hinton — with whom he had previous

tense encounters — when he saw that Hector and Hinton’s room

door was open. See Morris v. State, 301 Ga. 702, 704 (2017) (holding

that there was sufficient evidence of malice aforethought when,

“[p]rior to the shooting, [the defendant] acquired a gun and then

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headed to the house” where the victim was located and shot him

“numerous times . . . even after he had already fallen to the ground”).

The evidence also included testimony from P. H. that Appellant did

not have a particular “subject” to discuss when he approached

Hinton other than to ask Hinton what was “wrong with [his] face[.]”

And other evidence included a recorded interview in which Brooks

told Williams that Appellant said he “busted at [Hinton] six times”

because Hinton said “something smart.” See Anderson v. State, 319

Ga. 56, 61 (2024) (“[T]hreats and insults on their own are not enough

to support a voluntary manslaughter instruction.”). Altogether, any

prejudice arising from the prosecutor’s questions and the detective’s

response did not likely affect the outcome of Appellant’s trial

because the evidence showing that he acted with malice

aforethought was strong. Appellant therefore cannot show plain

error.

(b) Appellant also argues that the trial court erred in failing to

give a curative instruction after the prosecutor’s colloquy with the

detective. This claim is also reviewed for plain error because

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Appellant failed to request a curative instruction during trial. See

Wynn v. State, 313 Ga. 827, 830 (2022) (“Because [the appellant] did

not raise any objection regarding the . . . evidence at trial and did

not request a curative instruction, we review these issues only for

plain error.”). Under the third prong of plain error review, Appellant

cannot show that the trial court’s failure to, sua sponte, give a

curative instruction likely affected the outcome of his trial for the

reasons explained above. Accordingly, Appellant’s claim fails.

3. Finally, Appellant argues that trial counsel was ineffective

for failing to object to evidence regarding his statement that he

would “talk to” an attorney and for failing to request a curative

instruction. For the reasons explained below, Appellant has waived

these claims.

After Appellant was convicted, his trial counsel filed a motion

for new trial. He then filed an amended motion for new trial through

new counsel who represented him at the hearing for the amended

motion. Appellant raised several ineffective assistance claims in his

amended motion for new trial and at the hearing but did not raise

22
the claims, which he currently asserts on appeal. Appellant’s

current counsel entered an appearance after the trial court denied

Appellant’s motion for new trial and a notice of appeal was filed to

this Court.

Under Georgia law,

in order to avoid a waiver of a claim of ineffective
assistance against trial counsel, the claim must be raised
at the earliest practicable moment, and that moment is
before appeal if the opportunity to do so is available. The
pre-appeal opportunity is “available” when the convicted
defendant is no longer represented by the attorney who
represented him at trial.

Sturkey v. State, 319 Ga. 156, 162 (2024) (citation and punctuation

omitted).

Appellant argues that the ineffective assistance claims he now

asserts were not waived because his current counsel did not

“participate in the motion for new trial” and entered an appearance

only after the notice of appeal had been filed. To support his

argument, Appellant compares his case to Johnson v. State, 259 Ga.

428, 429 (1989), overruled in part on other grounds by Wilson v.

State, 277 Ga. 195 (2003). In Johnson, the defendant’s appellate

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counsel “filed an appeal [to this Court] from the denial of [a] motion

for new trial filed by trial counsel” and raised the issue of ineffective

assistance for the first time on appeal. Id. at 429. Thereafter, the

State requested “that the case be remanded for an evidentiary

hearing” in the trial court on the issue of ineffective assistance. Id.

We granted the State’s request and reasoned that

the requirement . . . that an evidentiary hearing must be
requested at the time of an amended motion for new trial
does not apply to a case where the appellate counsel did
not participate in the motion for new trial, and the issue
of ineffectiveness of counsel is raised for the first time on
appeal.

Id.

Appellant suggests that, just as an evidentiary hearing on an

ineffective assistance claim raised for the first time on appeal can be

requested when new counsel takes over after the denial of a motion

for new trial filed by trial counsel, Appellant should be able to raise

new ineffective assistance claims because his current counsel did not

participate in the motion for new trial stage. We disagree.

The earliest practicable moment for Appellant to raise the

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ineffective assistance claims he now asserts was in his amended

motion for new trial after he was no longer represented by trial

counsel. See Williams v. State, 298 Ga. 538, 540 (2016) (holding that

the appellant’s ineffective assistance claims were waived when they

were neither “asserted by him in his amended motion for new trial

filed after he obtained new counsel” nor “raised at the hearing on his

amended motion for new trial”). Moreover, Appellant’s case is

distinguishable from Johnson because in that case, appellate

counsel entered an appearance after trial counsel represented the

defendant throughout the entire motion for new trial stage. But

here, new counsel, rather than trial counsel, filed Appellant’s

amended motion for new trial, making it the earliest practicable

moment for Appellant to raise the ineffective assistance claims he

now asserts.

And though Appellant raised several ineffective-assistance

claims in his amended motion for new trial and at the motion for

new trial hearing, Appellant never asserted that his counsel was

ineffective for failing to object to the prosecutors’ questions and

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failing to request a curative instruction. Accordingly, these claims

are waived. See Berry v. State, 321 Ga. 251, 255 (2025) (holding that,

because the appellant asserted for the first time on appeal that his

counsel was ineffective for a different reason than he asserted in his

motion for new trial, his claim was waived).

Judgment affirmed. All the Justices concur, except Land, J., not
participating.

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