Sprayberry v. Morris

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, 2025

S25A0566. SPRAYBERRY v. MORRIS.

PETERSON, Chief Justice.

More than fifteen years ago, a jury found Edward Morris guilty

of murder, aggravated assault, criminal street gang activity, and

related offenses in connection with incidents involving two victims,

Randy Griffin and Lacey Magee. After we affirmed his convictions,

see Morris v. State, 294 Ga. 45 (2013), Morris filed a habeas corpus

petition asserting that his trial counsel and appellate counsel were

constitutionally ineffective in a host of ways. The habeas court

granted relief on all but one of Morris’s claims, and Warden Kevin

Sprayberry appeals from that ruling. As discussed in more detail

below, we reverse; the habeas court erred as to each ground on which

it granted relief. One claim remains unresolved by the habeas court,
so we remand for further consideration as to that claim.

1. The underlying proceedings

(a) The trial evidence

Morris was tried jointly with several co-defendants, including

Carlos Drennon. We affirmed Morris’s convictions, 1 describing the

evidence from the trial as follows:

Morris was a member of the “International Robbing Club”
or “IRC,” a loosely affiliated group of friends and
associates who planned and executed so-called “licks,”
robberies of individuals believed to possess significant
amounts of cash, drugs, jewelry, and other high value
items. In May 2007, IRC members targeted Griffin, a
jewelry merchant who regularly wore flashy jewelry. In
the early hours of May 22, 2007, Morris and various co-
indictees followed Griffin as he was driving home from a
night club, intending to rob him. When Griffin and Magee,
his girlfriend, pulled into Griffin’s driveway and exited
their cars, shots were fired at them from a gold Toyota
Avalon occupied by Morris and co-defendants Carlos
Drennon, Maurice Hargrove, and Vincent Morris. Magee
was shot in the hand, and Griffin returned fire. The
Avalon drove off, with both Drennon and Vincent Morris
having been shot.

Morris, 294 Ga. at 46.

1 We also previously resolved Drennon’s appeal, rejecting most of his

claims but remanding for record development on his right-to-be-present claim.
See Drennon v. State, 314 Ga. 854, 855 (2022).
2
Meanwhile, another car containing fellow IRC members

Marciell Easterling, Daquan Stevens, and Jonathon Collins had

followed the Toyota Avalon and parked on a road nearby. See

Drennon v. State, 314 Ga. 854, 856 (2022).

After they heard the gunfire in the complex, they saw a
person run across the road. Unsure of who it was,
Easterling, who was driving the car, drove forward. The
person was Griffin, and he ran up to Easterling’s car.
Collins told Griffin to get in, and he did. Panicked and
unaware that the occupants of the car were part of the
group trying to rob him, Griffin told the people in the car
that someone had tried to rob him and had shot his
girlfriend. Griffin had a gun in his hand. According to
Easterling, the car’s occupants were also carrying guns,
but they were on the floor of the car, so there “wasn’t no
way that we could reach for our gun to do anything to
him.” About that time — which was only about 30 seconds
later — the Avalon in which the other members of the
group were riding “skidded out of the parking lot” of
Griffin’s complex. Griffin got out of the car Easterling was
driving and started shooting at the Avalon; he then ran
back toward his condominium.

Id. Tiffany Bankston, who had been dating Drennon, testified that

Easterling and Stevens told her that on the day Griffin was robbed,

“someone had ‘jumped out too fast’ that night, implying that the

group driving with Easterling might have killed Griffin that night if

3
they had the chance.” Id. at 857. “Following the incident, Magee and

Drennon were treated for their injuries at the same hospital, and

Griffin, who had accompanied Magee to the hospital, identified

Drennon as one of their assailants, leading to Drennon’s arrest.”

Morris, 294 Ga. at 46.

After his arrest, Drennon had several recorded phone

conversations with his IRC associates about trying to locate Griffin.

Drennon, 314 Ga. at 857–58. In one conversation, Drennon asked

Easterling if “everything straight” and if they had “seen ol’ girl,”

referring to Griffin. Id. at 858. Easterling responded that they had

not seen “ol’ girl” because “she had moved.” Id. In another

conversation between Drennon and Hargrove, they discussed how

that “ho” got in the back of the car with Easterling, Drennon was

“sweatin’ that ho,” Drennon was relying on Hargrove to “lay that ho

out for me,” and Hargrove promised to “f**k the s**t out that ho.”

Id. In another conversation, Drennon told Stevens that he had been

“watching the motherf**king news” and nothing was happening,

imploring Stevens to “go get that girl, man, … hurry up.” Id. In a

4
conversation with Morris, Drennon talked about the person who had

jumped in the car and had identified him in the robbery (i.e.,

Griffin), and Morris said he would have “slapped” that person and

agreed with Drennon that “all of that” could have been stopped when

the person was in the car. Id.

Easterling testified that IRC members, including Morris, had

planned Griffin’s murder to retaliate for Drennon’s arrest. Morris,

294 Ga. at 46–47. Specifically, Easterling testified that the day after

the robbery of Griffin, Morris had spotted Griffin’s vehicle outside a

store and called Easterling. Easterling met Morris at Morris’s house,

along with Hargrove and Stevens. They all traveled together with

guns to the store where Morris had spotted Griffin’s vehicle with the

intent to kill Griffin. When they arrived, Griffin could not be found.

“[I]n the early morning hours of June 10, 2007, Griffin was shot

and killed outside Club 112, a Midtown nightclub.” Morris, 294 Ga.

at 46. Easterling testified that the day after the shooting, Morris

recounted how he and others drove to Club 112 on the night of the

murder and waited for Griffin to emerge, at which point Hargrove

5
and Collins fired at Griffin. See id. at 47.

Morris’[s] presence at the scene of the murder was
corroborated by cell tower triangulation evidence placing
Morris’ cell phone at the crime scene at the time of the
shooting. In addition, a former girlfriend of Morris[, Shani
Monique Tennyson,] told police that Morris had told her
he had been present when Griffin was killed and that
Hargrove had been the triggerman.

Id.

Easterling testified that after he learned of Griffin’s murder,

he informed Bankston and told her to let Drennon know. Drennon,

314 Ga. at 857. Bankston confirmed that she learned of Griffin’s

death from Easterling and later told Drennon that her “Auntie

Monique” had killed her husband last night and that “she” did it at

Club 112, “which was code that Hargrove shot Randy Griffin.” Id. at

857, 859. Drennon later talked to Hargrove, who confirmed that the

“n***** f**ked the s**t out of that ho, man.” Id. at 859.

Easterling also implicated the IRC in several crimes in
addition to those involving Griffin. These crimes included
a September 2006 attack on, kidnapping of, and burglary
of the home of victim Gary Lester. Lester, who had
previously had dealings with Morris and other IRC
associates, corroborated Easterling’s account and
identified Morris as a participant in his abduction.

6
...

The State also presented Detective David Quinn, who
testified about information he received regarding various
IRC-perpetrated crimes from Drennon, who had been
acting as an informant prior to his arrest for the
attempted armed robbery of Griffin. In addition, the State
called Sergeant A.C. Lyda, a DeKalb County police officer,
who testified as an expert regarding the general activities
and culture of criminal street gangs.

Morris, 294 Ga. at 47.

Based on this evidence, the jury found Morris guilty on nine

charges, and the trial court sentenced Morris to life in prison for the

malice murder of Griffin in June 2007, ten years consecutive for the

attempted armed robbery of Griffin in May 2007, 20 years

concurrent for the aggravated assault of Griffin in May 2007, 20

years consecutive for the aggravated assault of Magee, five years

consecutive for firearm possession during commission of the

aggravated assaults, and 15 years consecutive for criminal street

gang activity, all to be served in prison. See Morris, 294 Ga. at 46

n.1. The jury found Morris not guilty on the other firearms count,

and the remaining charges were vacated by operation of law or

7
merged for sentencing purposes. See id.

Morris filed a motion for new trial though trial counsel, but it

was withdrawn. Morris, 294 Ga. at 46 n.1. Trial counsel filed a notice

of appeal on August 16, 2012, and once the case was docketed in this

Court, moved to withdraw as the attorney of record. This Court

denied trial counsel’s motion to withdraw and ordered counsel to file

a brief, which he did on May 24, 2013. After trial counsel filed that

brief, Morris obtained new counsel (“appellate counsel”), who filed a

motion to remand, generally asserting that it was necessary to

preserve Morris’s rights. In his motion and in filings in support of

that motion, appellate counsel did not argue that a remand was

necessary because Morris wished to raise ineffectiveness claims

against trial counsel. The State opposed the motion because Morris

did not indicate that he wished to assert these claims. This Court

denied the motion to remand, but allowed appellate counsel to file a

substitute brief. That substitute brief did not assert any claims that

trial counsel was ineffective.

We affirmed Morris’s convictions and, in the process, sua

8
sponte reviewed the sufficiency of the evidence and determined that

the evidence was sufficient. Morris, 294 Ga. at 46, 48.

(b) Habeas proceedings

In 2017, Morris filed the habeas petition in this case, raising

multiple claims of ineffective assistance of trial and appellate

counsel. Morris alleged his trial counsel was ineffective for: failing

to ensure his presence at bench conferences during voir dire and

“during trial”; failing to consult with or call a defense expert in cell

tower analysis; failing to interview or call Collins as a witness; and

waiving Morris’s motion for a new trial without his consent. Morris

asserted that appellate counsel was ineffective in handling Morris’s

appeal by: failing to raise a claim that this Court’s refusal to remand

the case was erroneous; failing to raise claims that trial counsel was

ineffective on various grounds; failing to argue that the evidence was

insufficient to support his convictions; failing to argue that the trial

court erred by denying bifurcation of the gang count; and failing to

raise a right-to-be-present claim. Following a hearing, the habeas

court granted relief on all of these grounds, and this appeal followed

9
2. General framework of our analysis

The Warden challenges the habeas court’s grant of relief on

each claim. We agree that the habeas court was wrong as to each

claim, so we reverse. Before addressing each of those grounds, we

set out the general framework that will guide our analysis.

“In reviewing the grant or denial of a petition for habeas

corpus, this Court accepts the habeas court’s factual findings and

credibility determinations unless they are clearly erroneous, but we

independently apply the law to the facts.” Dozier v. Watson, 305 Ga.

629, 629–30 (2019). A petitioner seeking habeas relief bears the

burden of establishing that his constitutional rights were violated.

See Ward v. Medina, 316 Ga. 345, 349 (2023).

In his habeas petition, Morris argued that appellate counsel

was ineffective for failing to raise certain claims on appeal, including

claims that trial counsel was ineffective; Morris also raised

independent claims that trial counsel was ineffective. The

independent claims that trial counsel was ineffective are

procedurally defaulted, however, because appellate counsel could

10
have raised these claims on appeal. 2 See, e.g., State v. Butler, 301

Ga. 814, 817–18 (2017) (ineffective assistance claims were barred

where the post-conviction attorney failed to raise the claims at the

first possible stage of post-conviction review); Hall v. Lewis, 286 Ga.

767, 769 (2010) (claims barred where counsel appointed to represent

the defendant in post-conviction proceeds could have raised the

ineffectiveness claims in the motion for new trial and on direct

appeal); White v. Kelso, 261 Ga. 32, 32 (1991) (because an

ineffectiveness claim may be raised for the first time in the direct

appeal if the direct appeal marks the first appearance of new

counsel, appellate counsel’s failure to raise the claim, either in a

motion for new trial or on direct appeal, waived the claim).

Morris can overcome this procedural default by showing that

appellate counsel was ineffective for failing to raise on appeal claims

of trial counsel’s ineffectiveness. See, e.g., Hall, 286 Ga. at 769

2 The habeas court did not resolve whether the independent claims
against trial counsel were procedurally defaulted because it concluded that
Morris could overcome any procedural default based on appellate counsel’s
ineffectiveness. As discussed herein, this conclusion was wrong.
11
(establishing appellate counsel’s ineffectiveness in this context is

sufficient to meet “cause and prejudice” test applied to procedurally

defaulted claims). To establish that appellate counsel was ineffective

for failing to assert an error on appeal, whatever that claim might

be, “a habeas petitioner must show that his appellate counsel was

deficient in failing to raise an issue on appeal and that, if counsel

had raised that issue, there is a reasonable probability that the

outcome of the appeal would have been different.” Rozier v.

Caldwell, 300 Ga. 30, 31 (2016) (quotation marks omitted). Where

ineffectiveness of appellate counsel is premised on the failure to

assert ineffectiveness of trial counsel, demonstrating that the

outcome of the appeal would have been different necessarily

requires establishing trial counsel’s ineffectiveness. See Gramiak v.

Beasley, 304 Ga. 512, 513 (2018) (“[I]f [the defendant] cannot show

his trial counsel provided ineffective assistance of counsel, then [he]

also cannot show ineffective assistance of appellate counsel, because

an attorney is not deficient for failing to raise a meritless issue on

appeal.”).

12
Deficient performance is established if “the identified acts or

omissions were outside the wide range of professionally competent

assistance.” Bowen v. Noel, 313 Ga. 92, 96 (2022) (quoting Strickland

v. Washington, 466 U.S. 668, 690 (1984)). Establishing deficient

performance “is no easy showing, as the law recognizes a strong

presumption that counsel performed reasonably,” and to overcome

this presumption, Morris “must show that no reasonable lawyer

would have done what his lawyer did, or would have failed to do

what his lawyer did not.” Brown v. State, 302 Ga. 454, 457 (2017).

In evaluating appellate counsel’s performance, the question is not

whether counsel’s “decision not to raise a particular issue was

correct or wise, but rather whether his decision was an unreasonable

one which only an incompetent attorney would adopt.” Seabolt v.

Hall, 292 Ga. 311, 314 (2013) (cleaned up); see also Head v. Ferrell,

274 Ga. 399, 404 (2001) (“Appellate counsel does not render deficient

performance by selecting stronger claims for presentation on direct

appeal while setting aside weaker ones.”). The reasonableness of

appellate counsel’s conduct is assessed from the perspective of

13
counsel at the time of the appeal and under the specific

circumstances of the case. See Barker v. Barrow, 290 Ga. 711, 712

(2012).

With that framework, we consider whether appellate counsel

was ineffective in any of the ways alleged by Morris.

3. Appellate counsel was not ineffective with respect to Morris’s
right-to-be-present claim, either as a direct claim or in the
context of trial counsel’s ineffectiveness.

In his amended habeas petition, Morris argued that trial

counsel was ineffective for not allowing Morris to be present at nine

bench conferences during voir dire, failing to get his consent to

handle these bench conferences without Morris, and failing to

confirm that Morris acquiesced in not being present at the bench

conferences. As to appellate counsel, Morris alleged that counsel was

ineffective for not raising this matter on appeal. Although the

context suggests Morris was only asserting that trial counsel was

ineffective for counsel’s conduct with respect to the bench

conferences and that appellate counsel was ineffective for not

asserting trial counsel’s ineffectiveness, the habeas court construed

14
Morris’s petition as raising a claim that appellate counsel was

ineffective for failing to raise a direct claim on appeal that Morris’s

right to be present was violated. The habeas court granted relief on

all three grounds.3 But as discussed above, the independent claim of

trial counsel’s ineffectiveness is barred. And the habeas court erred

in concluding that appellate counsel was ineffective for failing to

raise trial counsel’s ineffectiveness or for failing to raise a direct

claim regarding Morris’s right to be present. We first address the

direct claim.

(a) Appellate counsel was not ineffective for failing to raise a
claim on appeal that Morris’s right to be present was
violated.

Morris asserted that he was excluded from several bench

conferences during voir dire, and that this exclusion violated his

right to be present under the United States and Georgia

Constitutions. But the habeas court did not make any determination

3 The habeas court noted that Morris was unclear as to whether appellate

counsel was ineffective in failing to raise the right-to-be present claim “directly
or through the lens of trial counsel’s ineffectiveness,” but believed the outcome
was the same regardless.
15
as to the federal claim, granting relief only based on the right under

the Georgia Constitution. 4 Our analysis here is limited to the state

right; the federal claim remains pending for the habeas court to

resolve on remand. See, e.g., Turpin v. Lipham, 270 Ga. 208, 220

(1998) (“Until there is a decision in the habeas court, [the unresolved

issues] are not ripe for appeal.”).

The Georgia Constitution provides that “[n]o person shall be

deprived of the right to prosecute or defend, either in person or by

an attorney, that person’s own cause in any of the courts of this

state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII; see also Ward v.

State, 288 Ga. 641, 645 (2011) (this paragraph embodies a “criminal

defendant’s right to be present and see and hear, all the proceedings

which are had against him on the trial before the Court.” (citations

omitted)). Proceedings during which the jury is selected or changed

4 Although the habeas court mentioned the federal right, its analysis of

harm was based on law regarding the violation of the state right, which differs
materially from the analysis of harm for a violation of the federal right. See,
e.g., Peterson v. State, 284 Ga. 275, 279 (2008) (noting that a critical difference
between the federal right and the state right is that a violation of the federal
right is subject to a harmless-error review while a violation of the state right
is presumed to be prejudicial).

16
are a critical stage in which the defendant is entitled to be present.

See Ward, 288 Ga. at 645; see also Brewner v. State, 302 Ga. 6, 10

(2017).

The right to be present can attach to some bench conferences,

but not those “where the defendant’s presence bears no relation,

reasonably substantial, to the fullness of his opportunity to defend

against the charge, and thus would be useless, or the benefit but a

shadow.” Champ v. State, 310 Ga. 832, 840 (2021) (quotation marks

omitted). Such bench conferences to which the right does not apply

generally “deal with questions of law involving essentially legal

argument about which the defendant presumably has no knowledge,

or with procedural or logistical matters.” Id. (quotation marks

omitted). Bench conferences at which a juror is discussed and

dismissed, however, are proceedings to which the right to be present

applies. See Murphy v. State, 299 Ga. 238, 240 (2016). If the right to

be present attaches and a defendant has not waived it, any violation

of the right is presumed prejudicial and requires a new trial. See

Champ, 310 Ga. at 845 & n.10 (noting that Georgia is an outlier in

17
applying a conclusive presumption of harm to the violation of the

constitutional right and this rule has not been consistently followed

in our caselaw, as precedent traced to this Court’s early years has

applied harmless-error analysis).5

In setting out Morris’s right-to-be present claim, the habeas

court believed that the claim could not be resolved based on the trial

record alone, relying on this Court’s treatment of a similar claim

raised by Morris’s co-defendant in Drennon, 314 Ga. at 866–71. The

voir dire was transcribed, but the individual bench conferences were

not. In Drennon, we noted that although the defendant provided

record cites to relevant portions of the voir dire transcript where

bench conferences occurred, he made no effort to explain or

contextualize any of the nine relevant bench conferences and

provided no analysis as to how his right to be present was denied at

5 In Champ, we outlined in some detail our inconsistent application of a

conclusive presumption of harm. See 310 Ga. at 845, n.10. But whether to
overrule cases applying that conclusive presumption was not argued or briefed
in that case, and so the Court left that question for another day. See id. As in
Champ, the parties here have not briefed the question, and so we again leave
for another day whether to reconsider our precedent.
18
any of these nine conferences. 314 Ga. at 868. Despite these

omissions, we conducted our own review of the record and remanded

for further consideration based on our then-recent decision in

Champ that required a remand when a defendant raised a right-to-

be-present claim for the first time on appeal that could not be “easily

rejected based on the existing record.” Id. at 868–71 (quotation

marks omitted).

Morris argued, and the habeas court agreed, that at the very

least, if appellate counsel had raised the state law claim on direct

appeal, Morris would have obtained a remand like his co-defendant

did in Drennon. The habeas court found that this possibility was

sufficient to establish appellate counsel’s ineffectiveness. The

habeas court also concluded that on remand, based on the testimony

that had been developed in the habeas proceeding, there was a

“(more than) reasonable probability that the trial court would have

granted [ ] a new trial.”

But our decision in Drennon is inapplicable here because that

was a case on direct appeal. Because Morris raised the claim in a

19
habeas petition, it is controlled by our decision in Griffin v. Terry,

291 Ga. 326 (2012). There, the petitioner, exactly like Morris here,

raised a habeas claim that his appellate counsel was ineffective for

failing to raise a direct claim on appeal that his right to be present

was violated. Id. at 326. We held that because the habeas petitioner

was raising a claim of structural error in the context of an ineffective

assistance of counsel claim, prejudice would not be presumed and

the habeas petitioner had to establish actual prejudice. Id. at 328–

29. And we held that to show actual prejudice to an appeal, the

petitioner had to establish a reasonable probability that the result

of his trial would have been different had his absence been

prevented or corrected. Id. at 329. Because the petitioner in Griffin

could not make this showing, his habeas claim failed. Id. at 329–30.6

6 We express no opinion about whether Griffin was rightly decided. A

panel of the United States Court of Appeals for the Eleventh Circuit held in an
unpublished opinion, over a dissent, that Griffin was wrong to require a
petitioner to show actual prejudice in order to establish appellate counsel’s
ineffectiveness in failing to raise a structural error claim on direct appeal. See
Hall v. Warden, 686 FApp’x 671, 677–78 (11th Cir. 2017) (concluding that
Griffin’s actual-prejudice standard was contrary to the United States Supreme
Court’s holding in Smith v. Robbins, 528 US 259 (2000)); see also Hall, 686
FApp’x at 685–89 (Tjoflat, J., dissenting) (concluding that Robbins was

20
Morris did not argue below, much less present any evidence in

support, that the result of his trial would have been different had

his absence been prevented or corrected. He does not show that a

juror was improperly selected or rejected, or even if one had been,

that there was a reasonable probability that the result of his trial

would have been different. Therefore, this claim fails. See Griffin,

291 Ga. at 328–29 (concluding that petitioner failed to show that

result of trial would have been different if his absence from juror

colloquy had been prevented or corrected); cf. Peterson, 284 Ga. at

279 (deeming harmless any violation of the federal right to be

present where, given the strength of the evidence, even if the

defendant “had been present at the discussion with the juror, and

even if he had somehow managed to convince the trial judge (on

some basis not disclosed either to the trial court or to this Court) to

inapposite and noting precedent from the United States Supreme Court and
the Eleventh Circuit that had required a showing of actual prejudice for claims
of structural error that were procedurally defaulted or were raised in the
context of ineffective assistance of counsel). Nevertheless, no party has asked
us to revisit Griffin’s holding, which remains binding in Georgia courts until
and unless we overrule it. We decline to reconsider that precedent sua sponte.
21
remove the juror and seat a replacement in his stead, the verdict

would have been the same”).

(b) Appellate counsel was not ineffective for failing to raise a
claim on appeal that trial counsel was ineffective for
failing to include Morris in all substantive voir dire bench
conferences.

To prevail on a claim that his appellate counsel was ineffective

for failing to argue trial counsel’s ineffectiveness, Morris had to show

that a claim about trial counsel’s ineffectiveness would have

prevailed on direct appeal. Although the violation of the Georgia

right to be present is presumed prejudicial if raised as a direct claim,

such a presumption does not apply to claims raised in the context of

an ineffectiveness claim.

Even if the law presumes prejudice for certain errors
when they are timely raised, a convicted defendant who,
like [Morris], is seeking to overcome a procedural bar,
whether in conjunction with or separate from a claim of
ineffective assistance of counsel, does not have the benefit
of that presumption of prejudice, and must instead meet
the actual prejudice test.

Greer v. Thompson, 281 Ga. 419, 421–22 (2006) (cleaned up)7; see

7 There are exceptions to this rule: “(1) an actual or constructive denial

22
also Hall, 286 Ga. at 770 (habeas petitioner’s claim did not fall

within narrow range of cases in which a presumption of prejudice

could be assumed in context of appellate counsel’s failure to raise

trial counsel’s ineffectiveness); Alexander v. State, 313 Ga. 521, 530–

32 (2022) (adhering to rule that a claim of structural error, although

presumed prejudicial when raised as a direct claim, is not entitled

to the same presumption when raised in the context of an

ineffectiveness claim). Thus, to succeed on this claim, Morris had to

show that he was actually prejudiced by trial counsel’s failure to

include him in all substantive bench conferences. See Cartwright v.

Caldwell, 305 Ga. 371, 378 (2019) (“To determine prejudice

involving a claim that appellate counsel provided ineffective

assistance by failing to properly raise or prove a claim of ineffective

assistance of trial counsel, the petitioner must demonstrate that the

underlying ineffectiveness-of-trial-counsel claim would have had a

of counsel, (2) government interference with defense counsel, and (3) counsel
[who] labors under an actual conflict of interest that adversely affects his
performance.” Turpin v. Curtis, 278 Ga. 698, 699 (2004) (alteration in original).
None of these exceptions apply here.
23
reasonable probability of success.”).

For the reasons discussed above, Morris cannot meet this

standard. Therefore, this claim also fails.

4. Appellate counsel was not ineffective for failing to allege on
appeal that trial counsel was ineffective for failing to consult
with or call a defense expert in cell tower analysis.

As mentioned above, the State presented evidence showing

that Morris’s cell phone was at the scene of the crime. In particular,

the State’s expert testified that Morris’s phone pinged off a cell

phone tower close to Club 112 at 3:02 a.m., three minutes before

officers were dispatched in response to Griffin’s murder. In cross-

examining the State’s expert, trial counsel cited cell phone records

showing that Morris made a phone call at 3:02 a.m., when he was

apparently close to Club 112, and that his phone pinged at a tower

located at 675 West Peachtree at 3:10 a.m., and got the State’s

expert to agree that it would have been difficult for Morris to make

his way through the club and get to the new location on West

Peachtree in eight minutes, demonstrating that it would have been

difficult for Morris to have been the shooter. And in cross-examining

24
Detective David Quinn, trial counsel established that Morris was on

his phone at 3:02 a.m. and 3:04 a.m. in the area of 1100 Peachtree

and at 3:10 a.m. near 675 West Peachtree, providing additional

evidence that it would not have been possible for Morris to be with

the shooters at the club and get all the way down to West Peachtree

in six minutes. 8 In closing argument, trial counsel emphasized that

the State’s timeline based on cell phone records did not work, and

that those records showed that Morris “couldn’t have been involved

in this,” because he could not have been doing “a bunch of stuff” in

the club and still get to the next location at 3:10 a.m.

In support of his claim that trial counsel was ineffective for

failing to consult or call as a witness an expert in cell tower analysis,

Morris presented at the habeas hearing the testimony of Andrew

Garrett, an expert in cell phone technology. Garrett generally

8 The Warden also points out that trial counsel used the cross-
examination of Detective Quinn to argue that a cell-phone call between Morris
and Hargrove at 3:02 a.m. showed that the men were not together. Morris
argues that there was no evidence showing who made these calls between the
phones, and Detective Quinn said it would not be unusual for them to call each
other even if they were near each other, which the prosecutor used to argue
that the phone call was a “signal” to kill Griffin.
25
challenged the methodology and application the State’s expert used

to place Morris at the scene, specifically testifying that the State’s

expert’s assertion that Morris had his phone in the area of the

shooting at the time of Griffin’s murder was not reliable. The habeas

court found Garrett’s testimony persuasive and held that the State’s

expert “misapplied the facts and data” of his cell phone analysis to

Morris’s case and held that trial counsel provided ineffective

assistance by failing to call an expert. We disagree.

We need not detail all of Garrett’s reasons for challenging the

methodology and conclusion of the State’s expert. Even if trial

counsel’s decision to cross-examine the State’s expert rather than

procuring his own expert was unreasonable, Morris cannot show

that trial counsel’s failure to consult with or call a defense expert

like Garrett prejudiced him. Notably, the State’s expert merely

corroborated other evidence that had been presented at trial.

Easterling testified that Morris was involved in planning Griffin’s

murder. Morris also told Easterling that he and others drove to Club

112 on the night of the murder and waited for Griffin to emerge, at

26
which point two of Morris’s confederates — Hargrove and Collins —

opened fire at Griffin. Morris told Easterling that Hargrove’s gun

jammed, so Collins shot and killed Griffin. Morris’s former girlfriend

told police that Morris had told her he had been present when Griffin

was killed and that Hargrove had been the triggerman. The former

girlfriend also testified that she also got rid of a gun for Morris by

throwing it into the sewer. The gun was subsequently retrieved by

police after the girlfriend directed them to the location.

The habeas court found prejudice because Morris’s former

girlfriend’s testimony corroborating Easterling’s testimony with

respect to Griffin’s murder was not credible and thus concluded that

the testimony from the State’s expert was the only credible evidence

placing Morris at the scene. But that conclusion was clearly

erroneous. Although the habeas court rightly noted that Easterling’s

testimony needed to be corroborated, Morris’s former girlfriend

amply corroborated Easterling’s testimony with respect to Griffin’s

murder. See, e.g., Crawford v. State, 294 Ga. 898, 901 (2014) (an

accomplice’s testimony must be corroborated by slight independent

27
evidence corroborating both the identity of the defendant and the

fact of his participation in the crime).

The habeas court discounted the testimony of Morris’s former

girlfriend as not amounting to credible evidence that he was present

for the crime because she could not remember what she told police,

she reported what she did because she was scared she might be

prosecuted, and she recanted her statements during her trial

testimony. As for the supposed recantation, the habeas court’s

citation of the record does not support its conclusion that the

girlfriend recanted everything she said. Instead of saying that

Hargrove shot Griffin as she reported to police, the former girlfriend

clarified that Morris told her that Collins shot Griffin. More

importantly, in clarifying her police report, she did not say that

Morris did not tell her he was not present, only that he said he did

not shoot Griffin. Moreover, although the girlfriend could not

remember everything she said to the police, her statements to police

were recorded and she did not refute the things she reported when

she reviewed that recording.

28
Moreover, Easterling testified about the IRC’s involvement,

including Morris’s, in other crimes. Specifically, Easterling

described

a September 2006 attack on, kidnapping of, and burglary
of the home of victim Gary Lester. Lester, who had
previously had dealings with Morris and other IRC
associates, corroborated Easterling’s account and
identified Morris as a participant in his abduction.

Morris, 294 Ga. at 47.9

Because Easterling’s testimony was corroborated in many

respects by others, a reasonable jury would likely give his testimony

considerable weight. As a result, because there was strong evidence

placing Morris at the scene of the crime, as well as evidence that he

planned the crime and travelled there with other gang members, one

of whom shot Griffin, there is not a reasonable probability that the

result of his trial would have been different had trial counsel

consulted with or called an expert on cell tower technology. Thus,

appellate counsel was not ineffective for failing to raise this claim of

9 Although Morris was charged for offenses against Lester in the same

indictment relating to the murder of Griffin, Morris was not tried for these
offenses at the same trial.
29
ineffective assistance of trial counsel.

5. Appellate counsel was not ineffective for failing to argue on
appeal that trial counsel was ineffective for not interviewing
or calling co-indictee Collins.

The habeas court ruled that appellate counsel was ineffective

for failing to raise trial counsel’s ineffectiveness based on trial

counsel’s failure to investigate Collins and call him as a witness. We

disagree.

At a pretrial hearing, the parties discussed the availability of

Collins, whose trial was severed from the other defendants. The

prosecutor represented that Collins was incarcerated in New

Orleans. Counsel for co-defendant Drennon represented that she

had been “down there” to see if Collins would testify and Collins’s

attorney would not “make [him] available to testify.” In an affidavit

submitted in support of Morris’s habeas petition, Collins stated he

shot Griffin, Morris was not present for the shooting, he was

carrying Morris’s cell phone at the time, that he had confessed to

detectives prior to Morris’s trial that he shot Griffin, and that he has

“been and remain[ed] willing to testify” on Morris’s behalf in support

30
of his habeas petition. The prosecutor stated in an affidavit that

although Collins was actually brought to Georgia in hopes that he

would testify against Morris, no agreement had been made in

advance, and Collins was not called as a witness because he was

unwilling to testify against Morris and the other co-defendants.

At the habeas hearing, trial counsel said that Morris informed

him that Collins could be an exculpatory witness, providing evidence

that Morris was not a participant in the actual shooting. Trial

counsel said it was his understanding that Collins was in Louisiana

facing “murder charges or something out there” and “they’re not

going to let him go.” He said that the State never told him that

Collins was in Georgia during the course of Morris’s trial. He said

that had he known Collins was in Georgia, he would have insisted

that Collins be made available to testify, and that he should have

subpoenaed Collins in any case.

This evidence falls short of establishing trial counsel’s

deficiency. At the time of Morris’s trial, Drennon’s counsel

unequivocally said that Collins’s counsel was not going to let him

31
testify. As a result, it is far from clear that any effort to subpoena

Collins would have been fruitful. See Dodd v. State, 236 Ga. 572, 576

(1976) (trial court did not err in quashing a subpoena for the

appearance of co-indictee who asserted his right against self-

incrimination). Collins’s affidavit does not provide evidence to the

contrary. He merely stated that he was willing to testify at Morris’s

habeas proceeding, but he said nothing about testifying at Morris’s

trial. Although the State brought Collins in the hopes of testifying

against Morris, Collins was unwilling to do so. That he refused to

testify for the State does not establish that he would have been

willing to testify at trial in support of Morris. To conclude otherwise

is pure speculation. Morris’s claim fails.

6. Appellate counsel was not ineffective for failing to raise a
claim that trial counsel was ineffective for withdrawing the
motion for new trial without Morris’s consent.

Trial counsel testified at the habeas hearing that based on the

trial court’s rulings with other co-defendants, he did not want the

motion for new trial to linger and wanted to proceed with the direct

appeal. Trial counsel explained that he did not believe the trial court

32
would rule favorably on the motion for new trial but “was supremely

confident” that Morris’s convictions would get reversed on appeal.

Although trial counsel informed Morris of the decision to withdraw

the motion for new trial, stating that he wanted to “clear the way”

for an appeal, he did not get Morris’s consent. Morris testified at the

habeas hearing that trial counsel never asked for his consent to

withdraw the motion and was not told of the “pros and cons” of

waiving the motion, stating that he did not understand what was

going on. Morris did not, however, testify that he would not have

given his consent had this been explained to him.

Even if trial counsel was deficient for failing to fully explain

the consequences of withdrawing the motion and failing to get

Morris’s consent, Morris has not established prejudice from the

withdrawal. Morris did not testify that he would have refused to give

consent had he been adequately informed of the consequences of

doing so. Compare State v. Garland, 298 Ga. 482, 485 (2016) (habeas

petitioner established prejudice by testifying that he would not have

consented to the withdrawal of his motion for new trial). Because

33
Morris cannot establish that trial counsel was ineffective for failing

to obtain his consent in withdrawing the motion for new trial, his

claim of appellate counsel ineffectiveness on this ground fails.

7. Appellate counsel was not ineffective for failing to argue on
appeal that this Court erred in denying counsel’s motion to
remand the case.

The habeas court concluded that had appellate counsel

enumerated as error this Court’s denial of counsel’s motion to

remand, “the Court would have addressed the issue more

thoroughly.” But counsel’s motion provided no compelling reason to

remand, such as indicating that he wished to raise ineffectiveness

claims on appeal or develop the record in other ways. It was hardly

error to deny such a motion. Moreover, because we concluded above

in rejecting the claim that appellate counsel was ineffective for

failing to argue trial counsel was ineffective for withdrawing the

motion for new trial, Morris similarly cannot show that he was

prejudiced by not securing a remand to pursue that motion for new

trial. Thus, this ground of ineffectiveness fails.

8. Appellate counsel was not ineffective for failing to argue on

34
appeal that the evidence was insufficient to support Morris’s
convictions.

Although appellate counsel did not argue on appeal that the

evidence was insufficient, this Court nevertheless conducted a sua

sponte review of the evidence, as had been our practice then, and

concluded that the evidence was sufficient to support all of Morris’s

convictions. See Morris, 294 Ga. at 48. In concluding that we would

have reached a different conclusion had the issue been raised by

appellate counsel on appeal, the habeas court relied primarily on cell

phone expert testimony developed at the habeas hearing. In other

words, the habeas court relied on evidence not existing at the time

of the appeal but on evidence that was produced after the appeal was

decided. This is not how we conduct a sufficiency review. See, e.g.,

Nazario v. State, 293 Ga. 480, 488 (2013) (“[T]he reviewing court is

limited to finding error, as in all cases, based on the record.”);

Rymuza v. Rymuza, 292 Ga. 98, 102 (2012) (“[A] reviewing court is

limited to the record before it on appeal.”). The habeas court also

concluded that Easterling’s accomplice testimony was not

35
sufficiently corroborated, but as explained above, the habeas court

erred in reaching this conclusion. Morris cannot show that our prior

conclusion on Morris’s direct appeal was wrong, so he cannot show

that appellate counsel was ineffective for failing to raise a

sufficiency claim on direct appeal.

9. Appellate counsel was not ineffective for failing to argue on
appeal that the trial court erred in deciding not to bifurcate
the gang activity count.

Morris did not argue, and the habeas court did not find, that

the gang activity count was “joined solely” on the ground that it was

“of the same or similar character” as the other offenses, so he was

not entitled to severance as a matter of right. See White v. State, 319

Ga. 367, 377 (2024) (“A defendant has a right to severance where the

offenses are joined solely on the ground that they are of the same or

similar character because of the great risk of prejudice from a joint

disposition of unrelated charges.” (cleaned up)). Morris thus needed

to show that a trial court abused its discretion in denying his motion

to sever, but “’[t]ypically, a trial court does not abuse its discretion

in denying a motion to sever where evidence of one charge would be

36
admissible in the trial of the other and there is no evidence that the

joinder confused or misled the jury.” Id. Morris has not made this

showing.

Morris did not argue that the gang activity evidence “confused

or misled the jury.” And he did not argue that the evidence was not

relevant. See Campbell v. State, 320 Ga. 333, 340–41 (2024)

(evidence of gang activity was relevant to murder charge when it

showed motivation for killing the victim). He argued only that the

gang evidence was highly prejudicial. But for relevant and highly

prejudicial evidence to be excluded, its probative value must be

substantially outweighed by the danger of unfair prejudice. See

Wilson v. State, 315 Ga. 728, 738 (2023) (citing OCGA § 24-4-403).

Morris did not argue, much less show, that the relevant evidence

was unfairly prejudicial or that this unfairly prejudicial effect

substantially outweighed its probative value. In short, he made no

showing that the gang activity evidence would not have been

admissible in a severed trial. Thus, he failed to show that the trial

court abused its discretion in denying his motion to sever. See, e.g.,

37
Campbell, 320 Ga. at 340–41 (trial court did not abuse its discretion

in severing two murder counts where evidence of one murder would

have established that it was committed in order to cover up crimes

of the gang and evidence of the other murder would have established

a motive for the crime); McCabe v. State, 319 Ga. 275, 287 (2024)

(trial court did not abuse its discretion by denying the motion to

sever when the challenged evidence “was a relevant part of

explaining the plan and motive for his criminal conduct”). The claim

of appellate counsel’s ineffectiveness on this ground fails.

***

In sum, we reverse the habeas court’s grant of relief to Morris.

Morris’s claims of ineffective assistance of trial counsel were

procedurally defaulted, and he has not overcome this procedural

default by showing that appellate counsel was ineffective for failing

to raise these claims. Morris also has not established that appellate

counsel was ineffective for failing to raise other claims directly. The

habeas court made no ruling on whether appellate counsel was

ineffective for failing to raise a claim that Morris’s federal

38
constitutional right to be present was violated. Thus, we reverse in

part and remand in part for that remaining claim to be addressed.

Judgment reversed in part and case remanded in part. All the
Justices concur.

39