Ealey 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: September 16, 2018

S25A0738. EALEY v. THE STATE.

LAGRUA, Justice.

Appellant Deanthony Ealey appeals his convictions for malice

murder and other crimes related to the shooting deaths of India

Royal and Cameron Woods. 1 On appeal, Ealey argues that his

convictions should be reversed based on the following contentions:

(1) the evidence was insufficient to support the convictions in this

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1 Royal and Woods were shot and killed inside their vehicle on January

13, 2017. On May 11, 2017, a Clayton County grand jury indicted Ealey for the
following counts: two counts of malice murder (Counts 1 and 2); two counts of
felony murder predicated on aggravated assault (Counts 3 and 5); and two
counts of aggravated assault (Counts 4 and 6). Ealey was tried from March 25
to 28, 2019, and the jury found Ealey guilty on all counts. The trial court
sentenced Ealey to life without the possibility of parole on Counts 1 and 2
(malice murder), to run consecutively, and the remaining counts merged or
were vacated by operation of law. Ealey filed a timely motion for new trial,
which he later amended through new counsel on March 28, 2024. After holding
two evidentiary hearings on the motion for new trial, the trial court denied the
motion on October 18, 2024. Ealey filed a timely notice of appeal and the case
was docketed in this Court to the April 2025 term and submitted for a decision
on the briefs.
case; (2) the trial court abused its discretion by admitting other-acts

evidence of two prior incidents under OCGA § 24-4-404(b); (3) the

trial court abused its discretion by admitting hearsay evidence; (4)

Ealey’s trial counsel was constitutionally ineffective in numerous

respects; and (5) the cumulative harm of the trial court’s errors and

trial counsel’s deficiency requires reversal. For the reasons that

follow, we affirm Ealey’s convictions and sentences.

The evidence presented at trial demonstrated that, on the

afternoon of January 13, 2017, a passerby discovered Royal and

Woods — unresponsive with apparent gunshot wounds — seated in

the front driver and passenger seats of a Chevy Malibu parked in

the Walmart shopping plaza in Riverdale. The Malibu’s windows

were up, the car’s engine was still running, and music was “playing

loudly” from the stereo. Following several 911 calls, 2 Riverdale

Police Lieutenant Brandon Criss responded to and secured the

scene.

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2 One of those 911 calls was admitted at trial and played for the jury.

2
GBI Agent Jerri Lynn Coody, who was qualified at trial as an

expert in crime scene investigation, arrived at the Walmart

shopping plaza that afternoon and later testified about her

observations at the scene. 3 According to Agent Coody, both victims’

seat belts were fastened; the Chevy Malibu’s taillights were on;

“Royal’s foot was on the brake pedal”; and neither body had been

moved. Royal’s hands were in her lap, and Woods was holding “two

bags of suspected marijuana” in his left hand — each containing

“over an ounce of marijuana,” which was “indicative of distribution.”

An additional bag of marijuana was inside the vehicle, along with

clear sandwich bags, bags of white and yellow pills, a pill grinder,

and a digital scale. Woods had $88 in cash in one of his pockets and

an additional $240 in cash in his wallet. Agent Coody testified that,

based on the drug paraphernalia and cash inside the vehicle, there

“could’ve been earlier drug sales involved or the [sale] of a quantity

of marijuana.”

—————————————————————
3 Agent Coody photographed the victims and the interior and exterior of

the Chevy Malibu, and those photographs were admitted into evidence during
trial.
3
Agent Coody also discovered “a Glock .40 caliber pistol” on the

right side of Woods’s body, between the front passenger seat and the

passenger-side door, the “barrel” of which was “pointing upwards

towards ... the ceiling of the roof of the car.” Given the placement of

this weapon, Agent Coody opined that the gun had fallen “from its

position and slid between the seat and the door.” Agent Coody also

located a “a 9mm cartridge” in the “front passenger’s interior side of

the door,” which she testified could not and did not come from the

.40 caliber pistol located next to Woods. In the driver’s seat, Agent

Coody found “bullet fragments and three FC brand 9mm cartridge

casings,” as well as four additional “9mm cartridge casings, [a]

bullet, and two jacket fragments ... within the white Malibu.” The

State’s expert in firearms examination testified at trial that the

9mm shell casings recovered from the Chevy Malibu were all fired

from the same 9mm handgun. The expert further concluded that,

“[b]ased off the class characteristics” and “design features” of the

cartridge cases, the gun used to fire these bullets was “consistent

with Glock 9mm pistols” and “possibl[y] ... a Glock 26.”

4
The medical examiner testified that Woods’s cause of death

was “a gunshot wound of the neck,” caused by a bullet that traveled

through the left side of Woods’s neck “below the ear” and exited out

through the right side of the neck.4 The medical examiner noted that

the “gunshot entrance wound” was surrounded by “a dried red

abrasion” and “black powder soot,” indicating a “close-range injury.”

As to Royal, the medical examiner testified that Royal’s cause of

death was “gunshot wounds of the torso and right arm.” The medical

examiner observed that Royal had “two gunshot entrance wounds”

from an “indeterminate range” — one was located “on the upper

right side of the back,” which exited “through the left side of the

chest,” and “a second wound path that involved the right forearm.”

On the afternoon of January 13, Lieutenant Criss reviewed

surveillance videos from various businesses in the Walmart

shopping plaza, including the Walmart and a restaurant located

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4 The medical examiner concluded that the “manner” of Woods’s death
was “homicide.” On cross-examination, Ealey’s trial attorney asked if it was
possible that this incident was a “murder-suicide,” and the medical examiner
testified that, if Woods “was left-handed or ambidextrous and holding a gun to
his neck,” it was “possible” his gunshot wound “could have been self-inflicted.”
5
close to where the victims’ car was parked. The surveillance videos

from Walmart and the restaurant, which were admitted at trial,

established that, between approximately 12:15 p.m. and 12:49 p.m.

on January 13, a “two-tone” Mercury Mountaineer — with white “on

top and dark on the bottom,” “chrome wheels,” “a bug deflector on

the hood,” and “a roof rack” — drove around the Walmart shopping

plaza and in front of the Walmart, occasionally parking “for several

minutes.” At 12:49 p.m.,5 the same white Mercury Mountaineer

drove over and parked in the area where the victims’ car was

discovered. At 12:51 p.m., the victims’ white Chevy Malibu backed

into a parking space in front of the Mountaineer. No one exited the

Malibu. At 12:52 p.m., a person, whose face is not clearly visible, got

out of the driver’s side of the Mountaineer, “walk[ed] up” to the

Malibu, “approache[d] the driver’s side rear [door], and open[ed] up

the rear door and then close[d] it” without entering. That same

person then walked around the back side of the Malibu to the

—————————————————————
5 Lieutenant Criss testified that the timestamp on the restaurant’s
surveillance videos actually reflected the time as 1:49 p.m., but he learned
during his investigation that the real time was an hour behind.
6
passenger side rear door, opened the rear door, and entered the

Malibu. Lieutenant Criss testified that the person who entered the

Malibu from the Mountaineer was “extremely tall.” A short time

later, the person exited the Malibu from the rear passenger door,

walked back to the Mountaineer, got into the Mountaineer on the

driver’s side, and the Mountaineer drove away. After watching an

additional two hours of the restaurant’s surveillance videos,

Lieutenant Criss determined that no one else ever entered or exited

the Malibu. Lieutenant Criss was also able to obtain tag information

for the Mountaineer from one of the surveillance videos.

Lieutenant Criss testified that he ran the Mountaineer’s

license plate and determined that it was registered to Diane Corbet

Ealey at a residential address in Alabama. Lieutenant Criss then

searched “a tag reader system” with cameras positioned on the

interstate “around the state of Georgia, which showed that, on

January 13, at 5:06 p.m., the Mountaineer was traveling on “I-85

southbound,” heading “towards Alabama.” On January 15,

Lieutenant Criss spoke to Diane Ealey, and he traveled to Alabama

7
to recover the Mountaineer. Diane advised Lieutenant Criss that, on

January 9, she loaned the Mountaineer to Ealey because “[h]is car

was being worked on,” and Ealey returned the vehicle to her on the

evening of January 13.

Agent Coody testified that the Mountaineer was towed to GBI

headquarters, and pursuant to a search warrant, she conducted a

search of the vehicle and located a receipt reflecting a $500

withdrawal at 4:01 p.m. on January 13, 2017 at a bank in Union

City. Surveillance images from that bank established that, between

4:01 and 4:03 p.m. on January 13, a man — later identified as Ealey

— completed a transaction at the drive-through ATM, driving the

same white Mercury Mountaineer depicted in the surveillance

videos from the Walmart shopping plaza.

At trial, Detective Clint Patton of the Fayette County Sheriff’s

Office was qualified as an expert in forensic cell phone analysis, and

he testified that he conducted a search of Woods’s cell phone

pursuant to a search warrant. Woods’s cell phone records

demonstrated that, at around 12:00 p.m. on January 13, Woods’s

8
phone received a phone call lasting “a minute and 36 seconds” from

a phone number ending in -4094, which was “NA” — meaning the

“phone number [wa]s not stored in” the contacts on Woods’s phone.

At 12:19 p.m., Woods’s phone received a text message from the same

phone number ending in -4094, stating “I’m up here, bro.” At 12:29

p.m., Woods’s phone received another phone call from the phone

number ending in -4094 that lasted “24 seconds.” At 12:45 p.m.,

Woods’s phone sent a text message to the phone number ending in -

4094, stating “5 away” and then, a few seconds later, “Where u

park?” At 12:50 p.m., Woods’s phone placed a call to the phone

number ending in -4094 that lasted “one minute and 16 seconds.”

This was the last outgoing communication made from Woods’s cell

phone.

On the morning of January 20, Lieutenant Criss met with

Ealey at his place of employment. According to Lieutenant Criss,

when Ealey entered the conference room for their meeting, Criss

was immediately struck by Ealey’s height, which was “between 6’4”

and 6’5”.” Lieutenant Criss audio-recorded his conversation with

9
Ealey, but did not read Ealey his Miranda6 rights because Ealey

“wasn’t in custody.” As reflected in the audio-recording of this

conversation, which was played at trial, Lieutenant Criss initially

advised Ealey that he could “talk to [Lieutenant Criss] or not,” and

Ealey said he would “talk a minute” but then needed “to get back to

work.” Lieutenant Criss told Ealey that he was investigating “an

incident [that] occurred” in Riverdale on January 13, 2017, in which

Ealey’s “mother’s SUV was involved.” Ealey told Lieutenant Criss

that he took a “personal holiday at work” on January 13 and that he

was the only person “driving his mother’s SUV ... that entire day.”

Lieutenant Criss informed Ealey that “[s]omebody got killed at the

Riverdale Walmart in the parking lot” on January 13, and Ealey said

he did not “know nothing about it.” Lieutenant Criss then showed

Ealey a photograph of the white Mercury Mountaineer captured in

the Walmart surveillance videos. Ealey acknowledged that the

vehicle “look[ed] like” his mother’s car, but said he could not

remember whether he went to the Riverdale Walmart that day.

—————————————————————
6 See Miranda v. Arizona, 384 US 436 (1966).

10
Ealey was permitted to leave after this interview, but he later

turned himself in to law enforcement and was arrested.

1. Ealey first contends that the evidence in this case was

insufficient as a matter of constitutional due process to support his

convictions for malice murder because the State failed to meet its

burden to prove beyond a reasonable doubt that Ealey was the

shooter. See Jackson v. Virginia, 443 US 307, 319 (1979). Ealey also

contends that the evidence in this case was insufficient as a matter

of Georgia statutory law because the State’s case was entirely

circumstantial, and the State failed to “exclude every reasonable

hypothesis” other than Ealey’s guilt, as required by OCGA § 24-14-

6 (“To warrant a conviction on circumstantial evidence, the proved

facts shall not only be consistent with the hypothesis of guilt, but

shall exclude every other reasonable hypothesis save that of the

guilt of the accused.”). We see no merit to either of these claims.

(a) When we evaluate “a due process challenge to the

sufficiency of the evidence, we view the evidence presented at trial

in the light most favorable to the verdicts and ask whether any

11
rational trier of fact could have found the defendant guilty beyond a

reasonable doubt of the crimes of which he was convicted.” Shellman

v. State, 318 Ga. 71, 74 (2024) (cleaned up). And “[w]e defer to the

jury’s resolution of any conflicts in the evidence, the credibility of

witnesses, and the drawing of reasonable inferences from the facts.”

Hooks v. State, 318 Ga. 850, 852 (2024). See also Ridley v. State, 315

Ga. 452, 455 (2023) (“In [assessing the constitutional sufficiency of

the evidence], we do not evaluate witness credibility, resolve

inconsistencies in the evidence, or assess the weight of the evidence;

these tasks are left to the sole discretion of the jury.”).

The evidence here was sufficient as a matter of constitutional

due process to authorize the jury to find Ealey guilty beyond a

reasonable doubt of malice murder and the other offenses of which

he was convicted. See Ridley, 315 Ga. at 455 (holding that the “jury’s

verdicts will be upheld” as long as “some competent evidence,” even

if circumstantial and contradicted, “supports each fact necessary to

make out the State’s case”). Here, the evidence established that, on

the afternoon of January 13, 2017, Royal and Woods were shot and

12
killed by 9mm bullets while seated inside their Chevy Malibu in the

Walmart shopping plaza. The only shell casings recovered inside the

vehicle were fired from a Glock 9mm handgun — the same handgun

used to shoot the victims — which was never found.

In the 30 minutes leading up to the shootings on January 13, a

white Mercury Mountaineer was captured on multiple surveillance

videos driving around the Walmart shopping plaza, and this

Mountaineer was distinguishable from similar cars in the vicinity

based on its unique features — two-toned color (white on the top,

dark on the bottom), bug deflector, roof rack, and chrome rims.

During this same timeframe, Woods’s cell phone was

communicating with an unknown phone number regarding the

estimated time of his and Royal’s arrival. When Woods’s phone

texted this phone number that he was “5 away,” the Mercury

Mountaineer traveled to and parked in an area of the shopping plaza

monitored by the restaurant’s surveillance videos, and those videos

captured the victims’ Chevy Malibu arriving a short time later,

parking in front of the Mountaineer. The driver of the Mercury

13
Mountaineer — a tall man, which was consistent with Lieutenant

Criss’s description of Ealey — was then recorded entering the back

seat of the Chevy Malibu and exiting again a minute later. The

surveillance videos established that the driver of the Mercury

Mountaineer was the only person to enter or exit the Chevy Malibu

while it was parked in the Walmart shopping plaza. Law

enforcement officers traced the Mercury Mountaineer’s tag number

— which had been captured on the Walmart surveillance videos —

to Ealey’s mother, who testified that Ealey had the Mountaineer on

January 13 and returned it to her in Alabama that evening. Ealey’s

mother’s testimony was corroborated by photographic images taken

by license plate readers positioned along I-85, which showed that

the Mountaineer traveled southbound on I-85 from an area south of

Atlanta toward Alabama on the evening of January 13. Surveillance

videos from a bank ATM in Union City also placed Ealey inside the

Mountaineer a few hours after the murders, and he admitted during

a subsequent interview with Lieutenant Criss that he was the only

person who had driven the Mountaineer “that entire day.”

14
Viewed in the light most favorable to the verdicts, this evidence

authorized the jury to conclude that Ealey shot Royal and Woods

and to find him guilty of malice murder. See Ridley, 315 Ga. at 455

(concluding that, after applying the constitutional-sufficiency

standard, the circumstantial evidence presented was “sufficient to

support” the defendant’s convictions).

(b) Turning to Ealey’s statutory claim, Ealey asserts that the

evidence presented at trial did not “exclude every other reasonable

hypothesis save that of [his] guilt,” OCGA § 24-14-6, arguing that,

at most, the evidence showed that he was near the crime scene

before the murders, having merely driven his mother’s Mercury

Mountaineer through the Walmart shopping plaza shortly before

the shootings occurred. Ealey further argues that the evidence did

not exclude the possibility that one of the victims shot the other

person and then turned the gun on himself or herself. We disagree.

Under Georgia statutory law, when a “conviction is based on

circumstantial evidence, the State must present sufficient evidence

to ‘exclude every other reasonable hypothesis save that of the guilt

15
of the accused.’” Hooks, 318 Ga. at 853 (quoting OCGA § 24-14-6).

But “[n]ot every hypothesis is reasonable, and the evidence does not

have to exclude every conceivable inference or hypothesis; it need

rule out only those that are reasonable.” Drennon v. State, 314 Ga.

854, 861–62 (2022) (cleaned up). “Whether alternative hypotheses

are reasonable is usually a question for the jury, and this Court will

not disturb the jury’s finding unless it is insufficient as a matter of

law.” Id. (cleaned up).

We conclude that the evidence recounted above, even if

circumstantial, authorized the jury to reject Ealey’s hypothesis that

he was merely present near the crime scene before the shootings

occurred or that the victims’ deaths were potentially caused by a

murder-suicide. The medical examiner testified that the cause of the

victims’ deaths was homicide, and his testimony also demonstrated

the implausibility of concluding that any of the victims’ gunshot

wounds were self-inflicted. Accordingly, we see no reason to disturb

the jury’s conclusion that Ealey was guilty of the crimes of which he

was convicted. See Drennon, 314 Ga. at 863.

16
2. Ealey next contends that the trial court erred by admitting

other-acts evidence against him at trial under OCGA § 24-4-404(b)

(“Rule 404(b)”). At trial, after giving limiting instructions to the jury,

the trial court allowed the State to introduce evidence of two prior

incidents involving Ealey for purposes of showing — with respect to

both of the incidents — his intent and motive under Rule 404(b) and

— with respect to one of the incidents — as intrinsic evidence to

show that, during a prior traffic stop, Ealey possessed a Glock 26

9mm handgun, which was returned to him after his arrest and

which could have been used to shoot the victims in this case, as it

was consistent with the type of weapon used in the murders. “We

review the trial court’s decision to admit [Rule 404(b)] evidence for

an abuse of discretion.” Roberts v. State, 315 Ga. 229, 235 (2022).

The first incident occurred in 2013 (the “robbery incident”) and

was presented through the testimony of the victim, Beverly Porter,

and the arresting officer, Sergeant J.P. Smallwood. Porter testified

that, on July 1, 2013, around 11:00 p.m., Porter accompanied her

son to a gas station to buy a cell phone “from some guys,” and Porter

17
waited in the car while her son went into the store. While Porter was

waiting, she noticed a “black Charger” pull into the gas station and

back into a parking space in front of her car. Soon after, a man —

later identified as Ealey — “open[ed] the back door and g[ot] in” the

backseat of Porter’s car, pointing a gun at her, and Porter assumed

he was the man meeting her son to sell his phone. The man told

Porter he “want[ed] the $300” and asked if there was a “gun in the

car.” Porter “told him no,” but the man “told [her] to open the glove

compartment to show him that there wasn’t a gun inside the glove

compartment.” After Porter did so, the man “asked for the keys,” as

well as her cell phone and her purse, which she gave to him. Porter

testified that the man kept the gun pointed on her the “whole time”

in “the space between both seats.” Around this time, Porter’s son

exited the store, and the man got out of the car, yelling, “Do you still

wanna buy the phone?” Porter’s son pulled a gun and “started

shooting.” The man got into the black Charger and sped away from

the gas station. A minute or so later, Porter heard “a crash.” At trial,

18
Porter identified Ealey as the man who got into the back seat of her

car and pointed a gun at her on July 1, 2013.

Sergeant J.P. Smallwood provided additional testimony about

the robbery incident at trial. According to Sergeant Smallwood, at

12:15 a.m. on July 2, 2013, he responded to “an armed robbery

attempt” at a gas station, and “[l]ess than 200 yards” from the gas

station, he “observed a black Dodge Charger sitting in a ditch on the

left-hand side of the road.” Sergeant Smallwood spoke to the two

men who were standing outside the vehicle — one of whom was later

identified as Ealey. Prior to taking the men into custody, Sergeant

Smallwood patted them down, and in Ealey’s pockets, he located “a

set of keys” and “an iPhone that was later identified as belonging to

[Porter].”

The second incident occurred in 2016 (the “gun incident”) when

the car in which Ealey was a passenger was stopped by Fayette

County Sheriff’s Deputy David Rojas, and Ealey admitted to owning

a Glock 26 9mm handgun found in the car. Deputy Rojas testified

that, on February 16, 2016, he conducted a traffic stop of a vehicle,

19
and prior to stopping the vehicle, he observed “a bag” being thrown

out of the passenger-side window. 7 When the vehicle stopped, Ealey

“was in the [front] passenger seat,” and as he got out of the car, he

told Deputy Rojas, “There’s a gun in the vehicle, and it’s registered

to me.” Deputy Rojas collected a Glock 26 9mm handgun from the

car. Deputy Rojas arrested Ealey and the driver of the vehicle, and

after determining Ealey was not “a convicted felon,” Deputy Rojas

put Ealey’s handgun in “safekeeping.” Ealey was later released from

custody and collected his Glock 26 9mm handgun on April 28, 2016.

On appeal, Ealey contends that the trial court abused its

discretion in admitting the gun and robbery incidents because,

among other things, any probative value of the prior acts was

substantially outweighed by the risk of unfair prejudice to Ealey.

For the reasons explained below, these claims fail.

(a) As to the gun incident, we conclude that the trial court did

not abuse its discretion in admitting evidence that Ealey owned and

—————————————————————
7 Deputy Rojas recovered the bag and determined it to be “a small bag of

marijuana.”
20
possessed a Glock 26 9mm handgun several months prior to the

murders because this evidence was intrinsic to the crimes at issue

in this appeal, and the “limitations and prohibition” on other-acts

evidence set out in Rule 404(b) “does not apply to intrinsic evidence.”

Williams v. State, 302 Ga. 474, 485 (2017).

To this end, we have said that evidence is considered
intrinsic to the charged offense when it is (1) an
uncharged offense arising from the same transaction or
series of transactions as the charged offense; (2) necessary
to complete the story of the crime; or (3) inextricably
intertwined with the evidence regarding the charged
offense.

Roberts, 315 Ga. at 236 (cleaned up).

Here, testimony establishing that, several months prior to the

murders, Ealey owned a Glock 26 9mm handgun — which he

possessed during a prior arrest and which was returned to him

following that arrest — was “admissible intrinsic evidence” because

it was “reasonably necessary to complete the story of the crime[s] for

the jury.” Harris v. State, 310 Ga. 372, 378 (2020) (cleaned up). In

this context, we have said that “‘necessary’ is not used in a strictly

literal sense, but rather, refers to what evidence is reasonably

21
necessary for the State to complete the story of the crime.” Id. at 379.

In this case, the State’s firearms expert determined that the

handgun used to shoot and kill the victims was consistent with a

Glock 26 9mm handgun. Accordingly, evidence showing that Ealey

owned and possessed that same type of handgun several months

before the murders “added significant weight” to the State’s theory

that Ealey was the shooter in this case — especially since the

murder weapon was never recovered. Harris, 310 Ga. at 379. See,

e.g., United States v. Brooks, 715 F3d 1069, 1076–77 (8th Cir.

2013) (concluding that photographs and a video showing the

defendant posing with a gun were intrinsic, where the gun appeared

to be the same gun used in the charged crimes); United States v.

Shea, 159 F3d 37, 39–40 (1st Cir. 1998) (determining that the gun

seized during the defendant’s arrest for a separate crime, which

occurred after the charged crime, was admissible as intrinsic

evidence where the government sought to prove it was the same gun

used in charged crime). 8 And, as intrinsic evidence, this “limited

—————————————————————
8 This Court looks to federal case law to interpret and apply provisions

22
evidence” from the gun incident was “admissible as long as it

satisfied OCGA § 24-4-403, ... and there is little question that it did.”

Roberts, 315 Ga. at 238 (citing Harris v. State, 313 Ga. 225, 232

(2022) (“[I]ntrinsic evidence must satisfy Rule 403.”)). See also

OCGA § 24-4-403 (“Relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”).

The testimony regarding Ealey’s ownership of a Glock 26 9mm

handgun had significant probative value because, again, the victims

were shot with a 9mm handgun, consistent with a Glock 26, and the

actual murder weapon was never recovered. And the need for this

type of evidence was even greater in this case given its

circumstantial nature and because Ealey denied any involvement in

the murders. See Lee v. State, 318 Ga. 412, 419 (2024) (concluding

—————————————————————
of Georgia’s new Evidence Code that are “materially identical” to the Federal
Rules of Evidence, which OCGA §§ 24-4-403 and 24-4-404 are in this case.
Redding v. State, 320 Ga. 107, 114 (2024) (citation omitted).
23
that evidence regarding the defendant’s prior possession of a

handgun similar to the one used to shoot the victims was highly

probative where the murder weapon was never recovered and the

case was based on circumstantial evidence). Additionally, evidence

that Ealey owned a Glock 26 9mm handgun and properly notified

police of his possession of that weapon during a traffic stop was not

likely to inflame the passion of the jury against him. See Willis v.

State, 315 Ga. 19, 28 (2022) (determining no prejudice where the

admission of the defendant’s prior conviction was “unlikely to

inflame the jury’s passions against him”) (cleaned up). Thus, “given

its strong probative value, this intrinsic evidence was not the

evidence of scant or cumulative probative force, dragged in by the

heels for the sake of its prejudicial effect, that Rule 403 contemplates

excluding,” Roberts, 315 Ga. at 238 (cleaned up), and the trial court

did not abuse its discretion in admitting evidence of Ealey’s

possession of a Glock 26 9mm handgun at trial.

(b) As to the remaining evidence presented about the gun

incident — including the arresting officer’s testimony that he

24
observed a small bag being thrown from the vehicle prior to the

traffic stop, which was later determined to contain marijuana — we

conclude that, while this evidence would not have been admissible

as intrinsic evidence on its own, any error in admitting it under the

circumstances was harmless, particularly since the recovered bag of

marijuana was never linked to Ealey, who was a passenger in the

vehicle, at trial.

(c) As for the evidence presented about the robbery incident,

while we cannot say this evidence was not admissible to show

Ealey’s motive or intent under Rule 404(b), we nevertheless

conclude — for the reasons discussed below — that any evidentiary

error in admitting it was harmless.

A non-constitutional evidentiary error requires reversal
only if it harms a defendant’s substantial rights, and we
determine whether such harm occurred by asking
whether it is highly probable that the error did not
contribute to the verdict. As part of that determination,
we review all the evidence de novo, after setting aside the
evidence admitted in error, and we weigh the remaining
evidence as we would expect reasonable jurors to have
done so.

Roberts, 315 Ga. at 239 (cleaned up). See also Kitchens v. State, 310

25
Ga. 698, 702 (2021) (cleaned up) (“The test for determining

nonconstitutional harmless error is whether it is highly probable

that the error did not contribute to the verdict.”).

Here, the properly admitted evidence against Ealey was strong

and included the intrinsic evidence from the gun incident showing

that Ealey owns a Glock 26 9mm handgun similar to the one used

to kill the victims in this case. The evidence also showed that, when

law enforcement officers ran the license plate on the Mercury

Mountaineer that was captured on surveillance videos in the area of

the crime scene, the vehicle was registered to Ealey’s mother at an

Alabama address, and she told law enforcement that Ealey had

possession of her vehicle that day. Ealey also admitted during his

interview with Lieutenant Criss that he was near the crime scene

prior to the murders; he was the only one driving his mother’s

Mountaineer on the day of the murders; and his mother’s

Mountaineer looked similar to the Mountaineer that was parked in

the area where the shootings occurred. The evidence also showed

that Ealey had the same body-type as the driver of that

26
Mountaineer, whom surveillance videos captured entering and

exiting the victims’ Chevy Malibu before and after the shootings and

who was the only person to enter and exit the Malibu prior to the

discovery of the victims’ bodies several hours later.

Given the strong evidence of Ealey’s guilt in this case, it is

highly probable that the admission of evidence about the details of

the gun incident (i.e., the marijuana) and the robbery incident did

not contribute to the verdicts and, thus, was harmless. See Kitchens,

310 Ga. at 702. Moreover, the trial court’s limiting instructions to

the jury about how they should consider and use this other-act

evidence at trial mitigated any prejudicial effect from the admission

of these prior incidents. Therefore, in light of the strong evidence

and the instructions to the jury, we conclude that, if there was any

trial court error in the admission of this evidence, it was harmless.

See Roberts, 315 Ga. at 240. Accordingly, Ealey’s Rule 404(b)

argument fails.

3. Ealey next contends that the trial court erred by allowing

Lieutenant Criss to testify on direct examination that, during his

27
investigation of the victims’ death on January 13, 2017, he learned

that the timestamp on the restaurant’s surveillance videos was an

“hour off.” Ealey argues that this testimony was hearsay because it

was an out-of-court statement made to Lieutenant Criss for the

truth of the matter asserted — specifically, what time the events

occurred as recorded on the restaurant’s surveillance videos.

Assuming without deciding that Lieutenant Criss’s testimony

improperly relied upon inadmissible hearsay, any error in admitting

that testimony was harmless under the nonconstitutional harmless

error standard. Again, “[t]he test for determining nonconstitutional

harmless error is whether it is highly probable that the error did not

contribute to the verdict.” Kingdom v. State, 321 Ga. 363, 369 (2025).

In determining whether the error contributed to the verdict, we

“review the record de novo and weigh the evidence as we would

expect reasonable jurors to have done.” Kitchens, 310 Ga. at 702.

Viewing the record in this way, the evidence properly admitted

at Ealey’s trial showed that, regardless of the time discrepancy in

the restaurant’s surveillance videos, Ealey’s mother’s vehicle —

28
which Ealey was admittedly the only person in possession of and

which had a unique body style — was driving around the Walmart

shopping plaza before the shootings occurred, was present at the

crime scene at the time of the shootings, and fled the crime scene

immediately after the shootings. Minutes before the shootings, a

person matching Ealey’s description exited this vehicle, entered the

victims’ vehicle, exited the victims’ vehicle, and was the last person

to physically interact with the victims until their bodies were

discovered a few hours later. Additionally, forensic evidence

demonstrated that the victims were shot with a Glock 9mm handgun

— likely a Glock 26 — which was never recovered and which was

the same kind of gun owned by Ealey.

Given this evidence of Ealey’s guilt, reasonable jurors could

conclude that Ealey was the shooter in this case, despite Lieutenant

Criss’s brief hearsay statement explaining the incorrect time on the

surveillance videos. As such, it is highly probable that the admission

of Lieutenant Criss’s testimony was harmless and did not contribute

to the guilty verdicts. See Kingdom, 321 Ga. at 369 (concluding that

29
any error in admitting the detective’s testimony relying on hearsay

was harmless under the nonconstitutional harmless error

standard). See also Hampton v. State, 308 Ga. 797, 802–03

(2020) (assuming error in the admission of hearsay, the error was

harmless given the other evidence pointing to the appellant’s guilt).

Thus, Ealey’s hearsay claim fails.

4. Ealey argues that his trial counsel was constitutionally

ineffective in a number of respects, broadly categorized as (1) a

failure to adequately investigate and/or introduce helpful evidence

and to adequately cross-examine witnesses; (2) a failure to call a

firearms expert; (3) a failure to renew an objection following the jury

charges, to make the correct objection to the admission of certain

exhibits, and to object to hearsay evidence at trial; and (4) a failure

to request that closing arguments be transcribed. These claims fail

under the standard set forth in Strickland v. Washington, 466 US

668, 687 (1984).

“To prevail on a claim of ineffective assistance of counsel, a

defendant generally must show that counsel’s performance was

30
deficient and that the deficient performance resulted in prejudice to

the defendant.” Moss v. State, 311 Ga. 123, 126 (2021) (citing

Strickland, 466 US at 687–95). “In 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 (2019).

“To prove deficient performance, a defendant must show that

his counsel performed in an objectively unreasonable way

considering all the circumstances and in light of prevailing

professional norms.” Nesbit v. State, 321 Ga. 240, 246–47 (2025).

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.

Id. at 247 (cleaned up). “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. “If an appellant fails to meet

his or her burden of proving either prong of the Strickland test, the

31
reviewing court does not have to examine the other prong.” Id.

(cleaned up).

(a) Ealey first contends that his trial counsel performed

deficiently by failing to adequately investigate the case; by failing to

introduce helpful evidence at trial, including evidence of another

9mm handgun discovered during the investigation — which was

excluded as the murder weapon — and additional cell phone records

tied to Woods and Ealey; and by failing to adequately cross-examine

witnesses at trial. Ealey’s contention that his trial counsel was

deficient in these respects fails.

“Decisions about what questions to ask on cross-examination

are quintessential trial strategy and will rarely constitute

ineffective assistance of counsel. And decisions as to what evidence

to present ... are ordinarily matters of trial strategy and provide no

ground for reversal.” Morrison v. State, 303 Ga. 120, 126 (2018).

At the motion-for-new-trial hearing, Ealey’s trial counsel

testified that she reviewed all the discovery turned over by the State,

in addition to conducting her own thorough investigation of the

32
identified facts and evidence in this case, and her decisions

regarding what evidence to introduce and what questions to ask

witnesses on cross-examination were tactical ones, based on her

decades of experience as a criminal defense attorney and her

evaluation of the unique facts of this case. With respect to Ealey’s

contention that there was evidence his trial counsel should have

introduced at trial, Ealey’s trial counsel testified that she did not

seek to admit this evidence because it would have “added nothing”

to the defense’s argument that Ealey was not the shooter and was

otherwise not relevant or favorable to Ealey.

On appeal, Ealey bears the burden of showing that trial

counsel’s actions here were “patently unreasonable,” Lockhart v.

State, 298 Ga. 384, 386 (2016), and he has failed to demonstrate that

his trial counsel’s decisions in assessing how to cross-examine

witnesses and what evidence to present were decisions “no

competent attorney” would have made under the circumstances.

Hughs v. State, 312 Ga. 606, 612 (2021). See also Morrison, 303 Ga.

at 126. As such, this claim fails.

33
(b) Ealey’s allegation that his trial counsel was deficient for

failing to present a firearms defense witness at trial also fails. “The

decision [of] whether to call an expert witness is a matter of trial

strategy within the broad range of professional conduct afforded

trial attorneys.” Davis v. State, 290 Ga. 584, 586 (2012). When the

Court considers a claim of ineffective assistance in this context, we

“must apply a strong presumption that counsel’s representation was

within the wide range of reasonable professional assistance,” and

thus, “a tactical decision will not form the basis for an ineffective

assistance of counsel claim unless it was so patently unreasonable

that no competent attorney would have chosen it.” Hughs, 312 Ga.

at 612 (cleaned up).

At the motion-for-new-trial hearing, Ealey presented a

firearms expert, who testified that the 9mm handgun used to shoot

the victims was also consistent with non-Glocks. Ealey’s trial

counsel testified that she did not call a firearms expert to testify at

trial because she did not think it was necessary, especially since the

murder weapon was never located and since she had the opportunity

34
to conduct a thorough cross-examination of the State’s firearms

expert at trial, during which she elicited testimony that he could not

determine the “specific firearm” used in the shootings because he

could not say that the “cartridge cases came from a specific single

gun without having that specific single gun.” Ealey’s trial counsel

also testified that, based on her communications with Ealey, she did

not think the testimony of a firearms expert would ultimately be

helpful to Ealey.

Again, “[o]ur inquiry is focused on the objective reasonableness

of counsel’s performance.” State v. Tedder, 305 Ga. 577, 584 (2019)

(cleaned up). Based on the record before us, we cannot say that trial

counsel’s decision not to call a firearms expert to testify at trial “was

so patently unreasonable that no competent attorney would have

chosen it.” Hughs, 312 Ga. at 612.

(c) Ealey also claims that his trial counsel was ineffective by

failing to raise or make proper objections at trial. Specifically, Ealey

contends that trial counsel was deficient for failing to renew her

objection to the trial court’s decision not to charge the jury on mere

35
presence — a charge which the trial court advised the parties it

would not give “because the appellate courts have held that that

principle is adequately embraced in the [c]ourt’s charge on burden

of proof and proof beyond a reasonable doubt,” «T6.53» and which

Ealey did not question his trial counsel about during the motion-for-

new-trial hearing. Ealey also contends that his trial counsel made

an incorrect continuing-witness objection when the State’s latent

fingerprint report and autopsy report were admitted at trial — as

opposed to when the exhibits went out with the jury — but the record

does not show that those exhibits were improperly admitted or even

went out with the jury during deliberations, and Ealey did not

establish otherwise at the motion-for-new-trial hearing. Finally,

Ealey contends that his trial counsel failed to object when two of the

prior-acts witnesses relied upon hearsay in testifying about what

occurred during the robbery incident — namely, Porter’s reliance

upon her son’s assertion that he was at the gas station to buy a cell

phone, and Sergeant Smallwood’s reliance on a non-testifying

witness’s statement that someone inside the Black charger fired a

36
gun as the vehicle was leaving the gas station — a failure that Ealey

did not question his trial counsel about during the motion-for-new-

trial hearing. Nevertheless, even if we assume that trial counsel was

deficient in these respects, Ealey has not established a reasonable

probability that, had counsel made the proper objections, the

outcome of his trial would have been different. See Jackson v. State,

318 Ga. 393, 401 (2024) (determining no prejudice where appellant

failed to show that his trial counsel’s failure to object to certain

witness testimony and evidence affected the trial results).

Here, the jurors saw and heard the strong evidence presented

at trial, which included surveillance videos of the crime scene and

surrounding area; law enforcement’s connection of the Mercury

Mountaineer observed on surveillance videos near the crime scene

to Ealey’s mother, to whom that vehicle was registered and who said

Ealey had the vehicle all day; and Ealey’s admission that he was in

close proximity to the crime scene at the time of the shootings and

was using his mother’s Mountaineer, which was strikingly similar

to the vehicle involved in the crimes. See Kitchens v. State, 289 Ga.

37
242, 244 (2011) (concluding there was no prejudice in failing to object

to testimony where there was otherwise strong evidence of

appellant’s guilt). In light of the strong evidence against Ealey,

“there is not a reasonable probability that the trial result would have

been different” had Ealey’s trial counsel made the alleged objections.

Jackson, 318 Ga. at 401 (cleaned up). See also Morrison, 303 Ga. at

126 (holding that “decisions as to ... whether to raise a specific

objection are ordinarily matters of trial strategy and provide no

ground for reversal”). As such, this claim fails.

(d) Finally, Ealey contends that his trial counsel was deficient

for failing to request that closing arguments be taken down by the

court reporter. This claim also fails.

The record reflects that, a little more than three years after

trial, Ealey filed a motion to supplement the record, asserting that

“[t]he jury trial transcript [wa]s not complete because it [wa]s

missing the opening statements and closing arguments” and that

those “portions of the transcript [we]re material and necessary” for

Ealey “to raise all possible issues on appeal” and in his motion for

38
new trial. Ealey also argued that, because the opening statements

and closing arguments were not recorded or transcribed and he had

“the burden of completing the record to support his contentions,” the

trial court “should hold a hearing to make the record conform to the

truth” and prepare a transcript “by recollection” to be “admitted into

the record.”

A few months later, the trial court held a hearing on Ealey’s

motion to complete the record, and Ealey called the prosecuting

attorney and Ealey’s trial counsel to testify in an attempt to recreate

opening statements and closing arguments. Following the hearing,

the trial court ordered that the transcript of the motion-to-complete-

the-record hearing be filed into Ealey’s case and admitted into the

record.

During the motion-to-complete-the-record hearing, the judge

inquired of Ealey’s trial counsel whether there had been “a request

for the openings and closings to be taken down” at trial, and Ealey’s

trial counsel responded, “I don’t recall if there was or not, ... [but]

I’m sure that if there was it would have been done,” further noting

39
that openings and closings are not required by law to be transcribed.

Trial counsel testified similarly at the subsequent hearing on

Ealey’s motion for new trial.

On appeal, Ealey contends that his trial counsel was deficient

in failing to request that closing arguments be taken down because

“[r]easonable attorneys ... request closing arguments to be recorded

[since] closing arguments are routinely used by this Court to assess

harm.” Ealey also argues that his trial counsel’s deficient

performance in this respect was prejudicial because “Ealey’s burden

to show harm for his 404(b) arguments is more difficult without

closing arguments.”

While we can envision a case where the failure to take down

closing arguments could constitute deficient performance, we cannot

say that Ealey’s trial counsel was deficient here based on the limited

record before us.9 See Parker v. State, 320 Ga. 572, 579 (2024)

—————————————————————
9 We have previously rejected claims of deficient performance for failure

to ensure that arguments of counsel were transcribed. See Dunlap v. State, 291
Ga. 51, 53 (2012) (concluding that, under OCGA § 17-8-5, “[t]he arguments of
counsel are not required to be transcribed,” and where trial counsel testified
that “it was his custom and practice not to request the transcription of ...
40
(“Deficient performance means that no reasonable lawyer would

have done what trial counsel did.” (quotation marks omitted)). And,

while we acknowledge that this Court commonly assesses harm or

prejudice to an appellant by how improperly-admitted evidence was

used in closing arguments at trial, 10 rendering it a better practice to

ensure those arguments are transcribed, Ealey has merely asserted,

but not shown, how he was prejudiced by the lack of transcription

here. See id. (“[P]rejudice means there is a reasonable likelihood

that the outcome of the trial would have been different but for the

deficient performance.”).

To prove that he was prejudiced by his trial counsel’s failure to

have closing arguments taken down, Ealey must show a “reasonable

probability” that, but for his counsel’s unprofessional errors, “the

—————————————————————
closing arguments,” “[c]ounsel’s practice was within the broad range of
professional conduct afforded to trial counsel in a non-death penalty case such
as the one at bar”). See also Norton v. State, 293 Ga. 332, 339 (2013) (concluding
that, where trial counsel testified that closing arguments “were not taken down
because of cost considerations” but any “objectionable questions” would have
been objected to and preserved for appeal, trial counsel’s actions were “‘within
the broad range of professional conduct afforded to trial counsel in a non-death
penalty case such as the one at bar’”) (citing Dunlap, 291 Ga. at 53).
10 See e.g., Strong v. State, 309 Ga. 295, 303 (2020); Grier v. State, 305

Ga. 882, 886–87 (2019); Thompson v. State, 302 Ga. 533, 542 (2017).
41
result of the proceeding would have been different,” which “burden

is a heavy one.” Watts v. State, 308 Ga. 455, 458 (2020) (cleaned up).

And Ealey has made no showing as to how the closing arguments

would have been helpful or harmful to his case, such that the

outcome of his trial would have been different. See id. Consequently,

Ealey has failed to carry his burden to show ineffectiveness

under Strickland, and this ineffective assistance of counsel claim

fails.

5. In Ealey’s final enumeration of error, he contends that, even

if this Court were to decide that the trial court’s errors and trial

counsel’s deficient performance do not warrant a new trial, the

Court should nevertheless conclude that a new trial is warranted

based on the combined effect of those errors. See State v. Lane, 308

Ga. 10, 21–23 (2020).

“To establish cumulative error, [an appellant] must

demonstrate that ‘at least two errors were committed in the course

of the trial’ and ‘considered together along with the entire record,

the multiple errors so infected the jury’s deliberation that they

42
denied the petitioner a fundamentally fair trial.’” Wood v. State, 316

Ga. 811, 821 (2023) (quoting Lane, 308 Ga. at 21). When this Court

considers whether “the cumulative effect of presumed errors by trial

counsel and the trial court” entitles the appellant to a new trial, we

consider collectively the prejudicial effect, if any, of trial court

errors, along with the prejudice caused by any deficient performance

of counsel. Patterson v. State, 314 Ga. 167, 181 (2022).

Here, after collectively considering the cumulative prejudice

from any assumed errors discussed in Divisions 2 and 3 — i.e., the

admission of portions of the gun incident and the robbery incident

under Rule 404(b) and the admission of hearsay testimony from the

detective — and any assumed deficiency in Division 4, we conclude

that, given the strong evidence of Ealey’s guilt recounted above, the

combined impact of these errors and any deficient performance of

counsel “is insufficient to show a reasonable probability that the

results of the proceeding would have been different,” Patterson, 314

Ga. at 181, or that the prejudicial effect thereof denied Ealey a

fundamentally fair trial. And Ealey has not demonstrated

43
otherwise. See Huff v. State, 315 Ga. 558, 568 (2023) (holding that

the appellant’s cumulative-error claim failed because the appellant

did not demonstrate that “the prejudicial effect of the assumed trial

court errors ... denied him a fundamentally fair trial, given the

strong evidence against him”). As such, Ealey’s cumulative-error

contention also fails.

Judgment affirmed. All the Justices concur, except Peterson,
C.J., Warren, P.J., and Pinson, J., who concur specially as to
Division 4 (d).

44
PETERSON, Chief Justice, concurring specially.

I concur in the judgment of the Court, and in the opinion of the

Court except for Division (4) (d). I agree with that division’s holding

that Ealey failed to show that trial counsel’s failure to have

argument of counsel transcribed was prejudicial. But the opinion

then goes on also to hold that trial counsel did not perform

deficiently in failing to have argument of counsel transcribed. I

cannot join that additional holding about deficiency; it is

unnecessary given our holding on prejudice, no precedent of ours

compels that result, and I am uncertain whether that result is

correct on the facts of this case. See Strickland v. Washington, 466

US 668, 697 (1984) (“[T]here is no reason for a court deciding an

ineffective assistance claim to approach the inquiry in the same

order or even to address both components of the inquiry if the

defendant makes an insufficient showing on one.”). I am also

skeptical that our prior precedent rejecting such claims on deficiency

grounds was correct, even on the different factual records of those

45
cases. See, e.g., Norton v. State, 293 Ga. 332, 339 (2013). It seems to

me that failing to request that arguments and voir dire be

transcribed may often be deficient performance.

In Norton, we held that because there is no legal requirement

on trial courts to ensure that arguments are transcribed, see OCGA

§ 17-8-5, or voir dire in non-death penalty cases, see State v.

Graham, 246 Ga. 341 (1980), trial counsel did not perform

deficiently by not requesting that these portions of the trial be taken

down. See Norton, 293 Ga. at 339. But whether a trial court is

required to ensure that arguments and voir dire are transcribed is a

completely separate question from whether it is reasonable for trial

counsel to fail to have arguments and voir dire transcribed. We also

noted in support of our no-deficiency conclusion that counsel

testified that “these portions of the trial were not taken down

because of cost considerations, and that had objectionable questions

been asked or argument been made, he would have objected and

caused the court to make a record of them to preserve them for

appellate review.” 293 Ga. at 339. It seems to me that neither of

46
those points made counsel’s decision reasonable. First, cost

considerations cannot be a legitimate reason for trial counsel to

decline to have argument and voir dire transcribed when, as in

Norton, trial counsel represents an indigent defendant. It has long

been settled that in criminal cases, “[a]n indigent, on appeal, is

entitled as a matter of right to a free copy of the transcript of trial

court proceedings in which he has been a party.” Stalling v. State,

231 Ga. 37, 38 (1973), citing Griffin v. Illinois, 351 U.S. 12, 19 (1956)

(indigent criminal defendant entitled to trial transcript at public

expense). See also Roberson v. State, 300 Ga. 632, 635 (2017).

Second, trial counsel’s assertion that he would have objected if there

was something objectionable ignores one of the principal reasons to

have a transcript: trial counsel may fail to notice something

objectionable.11

—————————————————————
11 The cases Norton cites to support its conclusion that trial counsel did

not perform deficiently are also lacking. See 293 Ga. at 339 (“Counsel’s actions
were ‘within the broad range of professional conduct afforded to trial counsel
in a non-death penalty case such as the one at bar.’”) (quoting Dunlap v. State,
291 Ga. 51, 53 (2012) and citing Wright v. State, 274 Ga. 730, 732 (2002)). In
Dunlap, trial counsel testified that “it was his custom and practice not to
request the transcription of voir dire or opening and closing arguments” and
47
Moreover, considering the frequency with which we assess

harm and prejudice for evidentiary claims by evaluating how

improperly admitted evidence is used during arguments, it seems to

me that the failure to request that these portions of the trial be

taken down would rarely be a reasonable trial strategy. See, e.g.,

Harris v. State, 321 Ga. 87, 104 (2025) (referring to closing argument

when evaluating whether improperly admitted evidence was

harmful); Baker v. State, 318 Ga. 431, 448 (2024) (same); Strong v.

State, 309 Ga. 295, 317 (2020) (same); Robinson v. State, 308 Ga.

543, 552, (2020) (same); Thompson v. State, 302 Ga. 533, 542 (2017)

(same).

In any event, whether or not Norton and similar cases have

—————————————————————
“if he had any objections to those portions of the trial, it was his custom to
object and make sure a recording was made[.]” 291 Ga. at 53. But the practice
of not requesting a transcript of argument and voir dire does not transform an
unreasonable trial strategy into a reasonable one. And again, the decision not
to transcribe these portions of the trial because nothing objectionable
happened does not account for (the not uncommon) circumstance of trial
counsel failing to object to something objectionable or using arguments to
support a different enumeration of error. As for the citation to Wright, the
Court did not even discuss deficient performance (and instead resolved the
defendant’s claim on prejudice) so it is unclear why we cited it for this point in
Norton. See Wright, 274 Ga. at 732 (“The failure to show harm or prejudice is
fatal to [the defendant’s] claim.”).
48
been rightly decided is beside the point here. The United States

Supreme Court has made clear that Strickland deficiency is not

susceptible to bright-line rules, and instead must be assessed in

each case based on all the case-specific circumstances. See Roe v.

Flores-Ortega, 528 U.S. 470, 478 (2000) (rejecting bright-line

deficiency rule of First and Ninth Circuits “as inconsistent with

Strickland’s holding that the performance inquiry must be whether

counsel’s assistance was reasonable considering all the

circumstances”). And here, although the State argues that Norton

controls because it rejected an “identical” claim, the State points to

no testimony from counsel offering explanations similar to those in

Norton. So Norton does not control.

To sum up: it seems to me that there are few cases where it will

be objectively reasonable for trial counsel (especially for indigent

criminal defendants entitled to a transcript at public expense) to fail

to ensure that argument and voir dire is transcribed. It is hard to

square the importance we place on arguments when reviewing a

defendant’s claims on appeal, with trial counsel’s decision not to

49
request those arguments be transcribed — especially when the

request comes at no cost to the defendant and recreating what

occurred during these proceedings, held months or sometimes years

earlier, is incredibly difficult. Cf. Drennon v. State, 314 Ga. 854, 869

n.6 (2022) (noting procedures trial judges could adopt to avoid “the

difficult task of re-creating on appeal what occurred at bench

conferences held months or years earlier”). Indeed, Ealey argues

that he has been prejudiced by counsel’s failure to request that

closing arguments be transcribed because his “burden to show harm

for his 404(b) argument is more difficult without closing arguments.”

Trial counsel’s failure to request that closing arguments be

transcribed can, and often does, hamstring the defendant’s ability to

show prejudice on other claims.

Nevertheless, even if trial counsel performed deficiently here,

I agree with the Court that Ealey’s claim fails because he did not

demonstrate that trial counsel’s deficient performance prejudiced

him in any way. Accordingly, I concur in the Court’s judgment.

I am authorized to state that Presiding Justice Warren and

50
Justice Pinson join this concurrence.

51