CourtListener 10845993

Testo completo

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: March 17, 2026

S26A0125. DILL v. THE STATE.

WARREN, Presiding Justice.

Appellant Carlos Dill was convicted of malice murder and other

crimes in connection with the shooting death of Jonathan Stafford.1

In this appeal, Dill contends that the evidence was legally

1 Stafford was killed on November 26, 2021. In February 2022, a Fulton
County grand jury indicted Dill for malice murder, four counts of felony
murder, armed robbery, aggravated battery, aggravated assault, possession of
a firearm during the commission of a felony, possession of a firearm by a
convicted felon, and possession of a firearm by a convicted felon during the
commission of a felony. At a trial from June 12 to 15, 2023, the jury found him
guilty of all counts. The trial court sentenced him as a recidivist under OCGA
§ 17-10-7(c) to serve consecutive sentences of life in prison without the
possibility of parole for malice murder and armed robbery and 15 consecutive
years, suspended, for possession of a firearm by a convicted felon during the
commission of a felony. The remaining counts were vacated or merged. Dill
filed a premature motion for new trial, which ripened upon the entry of the
final disposition order. See, e.g., Fripp v. State, 322 Ga. 269, 269 n.1 (2025).
Dill later amended the motion through new counsel, and after holding
evidentiary hearings, the trial court denied it on April 14, 2025. Dill filed a
timely notice of appeal, which he amended twice. The case was then docketed
to the term of this Court beginning in December 2025 and submitted for a
decision on the briefs.
insufficient to support his convictions, the trial court abused its

discretion by failing to remove a juror, and his trial counsel provided

constitutionally ineffective assistance. For the reasons explained

below, we affirm.

1. The evidence presented at Dill’s trial showed the following.

In August 2021, Dill began dating Tatiana Willis-Riley; he soon

became “controlling” and “verbal[ly] abus[ive].” He “continuously

call[ed her] phone”; threatened to “break in[to her] house”; tried “to

break in[to her] window”; and drove by her workplace. On

November 25, 2021, Willis-Riley, who lived in Atlanta, traveled to

Alabama to spend Thanksgiving Day with her friend Stafford and

his family. Around 6:30 p.m., Willis-Riley posted on social media a

photo of Stafford preparing food. Over the next hour and a half,

dozens of calls were made from Dill’s social media account to Willis-

Riley; Willis-Riley ignored many of the calls, but she sometimes

answered and then ended the call. At some point, Stafford answered

one of the calls, and Dill said, “Who the f**k are you[?]”

During this same timeframe, Dill’s social media account also

2
sent many text messages to Willis-Riley. Around 6:35 p.m., Dill’s

account sent a text saying, “F**ked up how you couldn’t spend the

holiday with me but you around a whole n**ga and his folks.” Willis-

Riley texted that she was “done” and did not “wanna b[e] with” Dill.

Dill’s account texted: “You try me and put a n**ga on the phone”;

“You most definitely just f**ked up with me n**ga”; “Letting a n**ga

answer … I can’t even do that”; and “Just disrespected me to the

fullest.” Willis-Riley texted that there was “[n]o love lost”; she was

“not [i]n [a] relationship with” Dill; and “the feelings [she] had [were]

gone.” After several more exchanges, Willis-Riley texted that she

was “not changing [her] mind”; she “wish[ed him] the best” and they

could “b[e] friend[s].” Dill’s account responded, “Just give up on me

like that.”2

Later that night, Willis-Riley and Stafford drove back to her

apartment in Atlanta, arriving around 12:30 a.m. After they parked

2 Willis-Riley also sent text messages to Dill’s account at several points

during the exchange, saying that he should “[s]top questioning” her; she
planned to “block[ ]” him from texting and calling her; and he “ke[pt] calling,”
which was the “main reason” she no longer wanted to be with him. She also
asked him to “please stop calling” and “stop texting.”
3
Willis-Riley’s car, they walked toward her apartment; Stafford was

carrying Willis-Riley’s gun. Willis-Riley suddenly heard “gunshots”

and “tussling” behind her and saw Stafford “on the ground” and Dill

“with a gun.” Dill shot Stafford several times; took Willis-Riley’s

gun, which had fallen on the ground near Stafford; and then fled in

a white car. Willis-Riley called 911, and Stafford was taken to a

hospital, where he soon died.

Investigators obtained surveillance videos from Willis-Riley’s

apartment complex, which showed the following. At 7:10 p.m., more

than five hours before the shooting, a white car parked at Willis-

Riley’s complex; a man, whom Willis-Riley identified at trial as Dill,

could be seen near the car; at 7:43 p.m., the car left; it returned at

10:48 p.m. Around 12:30 a.m., Willis-Riley’s car parked at the

apartment complex, and Willis-Riley and Stafford walked toward

Willis-Riley’s apartment. Dill suddenly came into view of the

cameras, ducking behind several parked cars as he quickly followed

Willis-Riley and Stafford. He then ran behind Stafford and put a

gun to the back of Stafford’s head; they struggled for a few moments;

4
and Dill shot Stafford several times. Stafford fell to the ground as

Dill ran toward Willis-Riley, who tried to grab Dill’s arms. Dill then

fired more shots at Stafford, took a gun that was on the ground near

Stafford, and fled. Moments later, the white car pulled up near

where Stafford was lying on the ground and then quickly sped

away.3

Investigators collected six shell casings from the scene; the gun

used to shoot Stafford and Willis-Riley’s gun were never found. The

medical examiner who performed Stafford’s autopsy determined

that he had six gunshot wounds, with a wound to the torso causing

his death.

Dill was also shot in the torso at some point during the

incident. His mother took him to a hospital in the early morning

hours of November 26, 2021, and he was apprehended by

3 A surveillance video showed that after Dill fled, Willis-Riley went out

of view of the camera for more than two minutes, and when she returned, she
stood near Stafford and used her cell phone; she did not render aid to Stafford.
Willis-Riley, who was a certified medical assistant, later testified that she was
“in shock” and that a neighbor told her not to touch Stafford. She also testified
that she did not have a romantic relationship with Stafford.
5
investigators there. Dill did not testify at trial; his defense was that

the shooting amounted only to voluntary manslaughter because

Willis-Riley “wanted” Dill to see her with Stafford when she arrived

at her apartment complex, such that he was then provoked to kill

Stafford.4

2. Dill first contends that the evidence presented at his trial

was not sufficient as a matter of constitutional due process to

support his conviction for malice murder. See OCGA § 16-5-1(a) (“A

person commits the offense of murder when he unlawfully and with

malice aforethought, either express or implied, causes the death of

another human being.”).5 He argues, as he did at trial, that the

evidence supported, at most, a conviction for voluntary

manslaughter because Willis-Riley brought Stafford to her

apartment “in an effort to antagonize” Dill, which provoked Dill to

4 The trial court instructed the jury on voluntary manslaughter.

5 Dill makes no specific arguments about the sufficiency of the evidence

supporting his remaining convictions, so we do not review them. See
Davenport v. State, 309 Ga. 385, 398–99 (2020). See also, e.g., Sinkfield v.
State, 318 Ga. 531, 537 n.4 (2024).
6
shoot Stafford as the result of a sudden, violent, and irresistible

passion that was reasonable under the circumstances. See OCGA

§ 16-5-2(a) (“A person commits the offense of voluntary

manslaughter when he causes the death of another human being

under circumstances which would otherwise be murder and if he

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

resulting from serious provocation sufficient to excite such passion

in a reasonable person[.]”). This claim fails.

In evaluating the constitutional sufficiency of the evidence, we

view all of the evidence presented at trial in the light most favorable

to the verdicts and consider whether any rational juror could have

found the defendant guilty beyond a reasonable doubt of the crime

of which he was convicted. See Jackson v. Virginia, 443 US 307, 319

(1979). “This Court does not reweigh evidence or resolve conflicts in

testimony but rather defers to the jury’s assessment of the weight

and credibility of the evidence.” Jones v. State, 314 Ga. 692, 695

(2022) (cleaned up). Moreover, “whether or not a provocation, if any,

is such a serious provocation as would be sufficient to excite a

7
sudden, violent, and irresistible passion in a reasonable person,

reducing the offense from murder to manslaughter, is generally a

question for the jury.” Id. (cleaned up).

Here, the jury was authorized to reject Dill’s theory of

voluntary manslaughter and to instead find that there was ample

evidence that he formed the malice necessary to establish malice

murder. See Weston v. State, 321 Ga. 554, 556 (2025) (explaining

that the requisite criminal intent for malice murder “is that of

malice, which incorporates the intent to kill” and “may be formed in

an instant, as long as it is present at the time of the killing,” and

that “[w]hether a killing was intentional and malicious is for the jury

to determine” (quotation marks omitted)). In this respect, the

evidence indicated that several hours before the shooting, Dill felt

“disrespected” because Willis-Riley ended their relationship and

spent Thanksgiving Day with Stafford; Dill went to Willis-Riley’s

apartment complex at 7:10 p.m. and again at 10:48 p.m.; and he

waited nearly two hours until Willis-Riley and Stafford arrived

around 12:30 a.m. Dill then concealed himself behind cars in the

8
parking lot as he followed Willis-Riley and Stafford, ran behind

Stafford, pointed a gun at the back of his head, shot him several

times, continued to shoot after Stafford fell to the ground, and fled.

Based on this evidence, the jury, which was fully instructed on

voluntary manslaughter and malice murder, could have reasonably

concluded that the “provocation” Dill alleged—Willis-Riley’s act of

walking with Stafford to her apartment—was not sufficient to excite

the deadly passion of a reasonable person and that the shooting was

instead intentional and malicious.

Accordingly, the evidence presented at trial was

constitutionally sufficient to authorize a rational jury to reject Dill’s

theory of voluntary manslaughter and to find him guilty beyond a

reasonable doubt of malice murder. See Soto v. State, 303 Ga. 517,

519 (2018) (holding that the evidence was constitutionally sufficient

to support the appellant’s conviction for malice murder, rather than

voluntary manslaughter, because although the appellant claimed

that he shot the victim after he saw her “embrace and kiss” another

man, the man testified that he did not have a romantic relationship

9
with the victim and that she merely shook his hand, and “even if

[they] did embrace and kiss, the jury was nevertheless authorized to

conclude that such provocation would not have excited a reasonable

person to kill”); Dawson v. State, 300 Ga. 332, 333–34 (2016)

(holding that the evidence was sufficient as a matter of

constitutional due process to support the appellant’s conviction for

malice murder, rather than voluntary manslaughter, where he

sneaked into his estranged wife’s house after she told him she was

seeing another man, waited for them to go to sleep, stabbed them

multiple times, continued to stab the man after he tried to get under

the bed, and fled). 6

3. Dill also argues that the trial court abused its discretion by

failing to remove one of the jurors at his trial. We disagree.

(a) After a lunch break during Willis-Riley’s testimony, one of

6 To the extent Dill argues that the evidence was not sufficient under

OCGA § 24-14-6 because it was solely circumstantial and failed to “exclude
every other reasonable hypothesis save that of the guilt of the accused,” any
such claim fails. OCGA § 24-14-6 does not apply when, as in this case, there
was direct evidence of the appellant’s guilt. See, e.g., Robinson v. State, 323
Ga. 7, 12 (2025) (explaining that an eyewitness’s testimony that the appellant
shot toward him and the murder victim was direct evidence, such that OCGA
§ 24-14-6 did not apply).
10
the prosecutors told the trial court, outside the presence of the jury,

that she had learned that Willis-Riley was in the hallway outside

the courtroom with her lawyer and a victim advocate during the

recess; she was “crying”; a juror “went up to [Willis-Riley] and asked

if [she could] give [Willis-Riley] a hug”; the victim advocate said,

“[N]o”; and the juror walked away. Dill moved for a mistrial, and,

alternatively, asked the court to remove the juror.

The trial court had the juror brought to the courtroom and

asked about the interaction with Willis-Riley. The juror said that

she was “an empathetic person”; she “saw [Willis-Riley’s] pain”; she

“wanted to hug her”; and after the interaction, she “thought about”

it and “caught [her]self.” When asked if other jurors were nearby,

the juror said she “was one of the last people to leave” the courtroom

and she “got lost” for a moment in the hallway before heading in the

right direction toward the elevator, where she saw Willis-Riley. The

trial court then asked: “[Y]ou don’t find that you are already making

up your mind about what’s to happen in this case because of your

empathetic reaction to someone in pain?” The juror said, “I do not.”

11
The juror offered to no longer serve on the jury, and the trial court

responded that it would “like [her] to continue to serve as long as

that’s proper, and [her] feeling empathy towards anyone is not an

issue.” The juror then said that her desire to hug Willis-Riley

“wasn’t significant” and had to do with Willis-Riley’s “behavior and

how she felt and what [the juror] sensed at that time. It had nothing

to do with the court.” The trial court asked if the parties wanted to

ask the juror any additional questions, and they said, “No.” The trial

court had the jury brought to the courtroom and instructed that it

was to base its verdict solely on the evidence and “not … on

sympathy or affection or favor.”7 The State then continued its direct

examination of Willis-Riley.

(b) “A defendant is entitled to trial by a jury untainted by

improper influence,” and “[i]mproper communication with a juror

raises a presumption of prejudice to the defendant, which the State

must rebut beyond a reasonable doubt.” Collins v. State, 290 Ga.

7 The court gave a substantially similar instruction during its final
charge.
12
505, 506 (2012). We have recognized, however, that “some improper

communications are inconsequential.” Id. at 507 (quotation marks

omitted). “To upset a jury verdict, the improper communication

must have been so prejudicial that the verdict is deemed inherently

lacking in due process.” Id. (quotation marks omitted). See also,

e.g., Chance v. State, 291 Ga. 241, 243–44 (2012).

The record in this case supports the trial court’s finding that

the improper interaction between the juror and Willis-Riley was

“inconsequential.” Collins, 290 Ga. at 507; Chance, 291 Ga. at 243.

To that end, the record shows that what happened during the brief

interaction at issue was undisputed, and there was no discussion

about the merits of the case during that interaction. Moreover, the

interaction was not observed by or conveyed to the other jurors, and

the juror who engaged in the interaction assured the court that her

reaction to seeing Willis-Riley crying in the hallway was not related

to Willis-Riley’s testimony and that her ability to fairly assess the

case was not affected by her “empathetic reaction.” Under these

circumstances, the trial court was authorized to conclude that

13
although the improper interaction was presumptively prejudicial,

see Collins, 290 Ga. at 507, the State rebutted that presumption

beyond a reasonable doubt. See Chance, 291 Ga. at 243–44

(concluding that the trial court did not abuse its discretion by

deciding not to remove a juror who communicated with an assistant

district attorney about his upcoming wedding during the appellant’s

trial because the communication was not about the merits of the

case; the communication was “quickly terminated”; the juror

“indicated that he could still be fair and impartial and decide the

case based on the evidence”; and the “very brief contact was

immediately brought to the trial court’s attention,” such that “the

prosecutor rebutted any presumption of harm”); Collins, 290 Ga. at

507 (holding that the trial court did not err by refusing to remove a

juror after a member of the victim’s family approached the juror and

asked the juror to tell a mutual friend that she was “still looking for

a job,” as the communication was “clearly inconsequential, because

the record leaves no reasonable doubt that the juror contact caused

no prejudice to [the a]ppellant” (quotation marks omitted)); State v.

14
Clements, 289 Ga. 640, 643 (2011) (concluding that the record

supported the trial court’s determination that a juror’s discussion of

her selection for jury service with her husband was “inconsequential

in light of the uncontradicted evidence” that the juror did not discuss

the merits of the case, such that the improper communication “was

not so prejudicial as to have contributed to the conviction and was

harmless beyond a reasonable doubt”).

And to the extent Dill contends that the trial court abused its

discretion by failing to remove the juror because her attempt to hug

Willis-Riley showed that she believed Willis-Riley’s testimony and

had thus formed an opinion about Dill’s guilt, any such claim fails.8

“OCGA § 15-12-172 vests the trial court with broad discretion to

replace a juror with an alternate at any point during the proceedings

where, among other reasons, it is shown that the juror is unable to

perform his or her duty or legal cause exists.” Morrell v. State, 313

8 Dill does not expressly assert that the presumption of prejudice that

applies to his claim that the juror’s attempt to hug Willis-Riley was an
“improper communication,” see, e.g., Collins, 290 Ga. at 506, also applies to his
argument that the juror had formed an opinion about his guilt.
15
Ga. 247, 263 (2022). 9 “To excuse for cause a selected juror in a

criminal case on the statutory ground that her ability to be fair and

impartial is substantially impaired, a challenger must show that the

juror holds an opinion of the guilt or innocence of the defendant that

is so fixed and definite that the juror will not be able to set it aside

and decide the case on the evidence or the court’s charge on the

evidence.” Id. (quotation marks omitted).

Here, the trial court asked the juror who tried to hug Willis-

Riley whether she was “already making up [her] mind about what’s

to happen in this case because of [her] empathetic reaction,” and the

juror replied that she was not. And, as discussed above, the juror

assured the court that her attempt to hug Willis-Riley was related

only to Willis-Riley’s “behavior” in the hallway, not her testimony in

the courtroom. The juror did not express a fixed opinion about Dill’s

guilt or innocence. Nor did she indicate that she would not be able

9 OCGA § 15-12-172 says, in pertinent part, “If at any time, whether

before or after final submission of the case to the jury, a juror dies, becomes ill,
upon other good cause shown to the court is found to be unable to perform his
duty, or is discharged for other legal cause, the first alternate juror shall take
the place of the first juror becoming incapacitated.”
16
to decide the case based on the evidence presented at trial and the

trial court’s instructions, including the court’s instruction that the

jury was not permitted to base its verdict “on sympathy or affection

or favor.” Thus, the trial court did not abuse its discretion by

deciding not to remove the juror. See, e.g., Morrell, 313 Ga. at 263–

64 (holding that the trial court did not abuse its discretion by

deciding not to remove a juror whose “boyfriend’s mother was killed

and the defendant [in that case] was found not guilty after a trial”

because even though the juror told the trial court outside the

presence of the rest of the jury that she did not expect to “get this

emotional” and expressed doubts about her ability to remain

impartial, she “did not express a fixed opinion about [the appellant’s]

guilt or innocence and did not “unequivocally indicate that she

would be unable to decide the case based upon the evidence

presented at trial and the trial court’s instructions”); Clements, 289

Ga. at 644–45 (concluding that the trial court did not abuse its

discretion by determining from the juror’s “answers to [the judge’s]

targeted questions” that even though she expressed concern that her

17
husband, who had coached the appellant, might have difficulty

getting a coaching job “due to the outcome of th[e] trial,” the juror

“was truthful and sincere as to her assertion that she had no fixed

and definite opinion about [the appellant’s] guilt or innocence and

that she was able to set aside her concern about the impact of any

verdict on her husband’s future job and decide the case based upon

the evidence or the court’s charge upon the evidence” (quotation

marks omitted)). 10

4. Finally, Dill claims that his trial counsel provided

constitutionally ineffective assistance by failing to disclose certain

evidence to the State before attempting to introduce it at trial and

by failing to prepare Dill for cross-examination, which, he says,

resulted in “an involuntary waiver of his right to testify.” To prevail

10 Dill also seems to argue that the trial court abused its discretion by

failing to question each juror about the interaction and by failing to grant his
motion for a mistrial, but he did not separately enumerate those issues as
error. See, e.g., Moss v. State, 323 Ga. 143, 148 n.6 (2025). And in any event,
they are not preserved for our review because Dill failed to request that the
trial court question each juror, see Clark v. State, 315 Ga. 1, 5 (2022), and he
failed to renew his motion for a mistrial after the trial court gave its curative
instruction, see Clark v. State, S26A0250, slip op. at 7 (Ga. Feb. 3, 2026) (2026
WL 271243).
18
on these claims, Dill must establish that trial counsel’s performance

was constitutionally deficient and that he suffered prejudice as a

result. See Strickland v. Washington, 466 US 668, 687 (1984);

Blalock v. State, 320 Ga. 694, 697 (2025). To prove deficient

performance, Dill must show that counsel “performed at trial in an

objectively unreasonable way considering all the circumstances and

in the light of prevailing professional norms.” Blalock, 320 Ga. at

697 (quotation marks omitted). See also Strickland, 466 US at 687–

91. To prove prejudice, Dill must establish a reasonable probability

that, but for counsel’s deficient performance, the result of the trial

would have been different. See Strickland, 466 US at 694; Blalock,

320 Ga. at 697. We need not address both parts of the Strickland

test if Dill does not meet his burden of establishing one. See

Strickland, 466 US at 697; Blalock, 320 Ga. at 697. As discussed

below, Dill’s ineffectiveness claims fail.

(a) Dill asserts that trial counsel was ineffective for failing to

timely disclose to the State evidence of a screenshot of his phone,

which indicated that at 12:30 a.m. on November 26, 2021, moments

19
before the shooting, there was a “missed call” from Willis-Riley’s

phone. The trial court ultimately excluded the evidence on the

ground that it was not timely disclosed. See OCGA § 17-16-4(b)(1).11

At the hearing on Dill’s motion for new trial, trial counsel testified

that she wanted to use the evidence of the missed call to “contradict[

] the State’s theory that it was … Dill initiating all contact and

getting nothing back from [Willis-Riley]” and that Willis-Riley’s

“reaching out to [Dill] would [have] support[ed the] theory that [Dill]

acted out of passion” when he killed Stafford. Assuming (without

deciding) that trial counsel performed deficiently by failing to timely

disclose the evidence of the missed call, which led to its exclusion at

trial, Dill has not shown a reasonable probability that the outcome

of his trial would have been different if the evidence had been

admitted.

To begin, the evidence showing that Willis-Riley’s phone called

Dill a few minutes before the shooting would have done little to

11 Dill does not contend that the trial court abused its discretion by
excluding the evidence, and we express no opinion on that issue.
20
undermine the substantial evidence indicating that Dill harassed

Willis-Riley by repeatedly calling and texting her that day. The

State presented evidence that dozens of calls were made from Dill’s

social media account to Willis-Riley between around 6:30 p.m. and

8:00 p.m. on November 25, 2021; Willis-Riley ignored most of the

calls; and when she sometimes answered, she soon ended the call.

Dill’s account also repeatedly texted Willis-Riley during the same

timeframe, despite her responses that she no longer wanted to be in

a relationship with Dill and her requests that he stop calling and

texting. In sum, the evidence of a single missed call from Willis-

Riley to Dill near the time of the shooting would have had little, if

any, effect on the jury’s assessment of the other, substantial

evidence indicating that Dill refused to leave Willis-Riley alone.

See, e.g., Blalock, 320 Ga. at 702 (concluding that the appellants had

not shown prejudice from trial counsel’s failure to introduce certain

evidence that the appellants claimed would have undermined the

State’s ballistics evidence because the evidence “d[id] nothing to

undermine other strong evidence” showing where the fatal shot was

21
fired from).

Moreover, the evidence of the missed call would not have added

any significant support to Dill’s theory that the killing amounted to

voluntary manslaughter, rather than malice murder. Indeed, the

screenshot showing the missed call did not establish why Willis-

Riley might have called Dill or even that she called him purposely,

as opposed to by accident. And as discussed above, the State

presented strong evidence establishing that Dill acted with malice

when he shot Stafford. In this respect, the evidence showed that

after calls and texts were repeatedly initiated from Dill’s social

media account to Willis-Riley, including a text about how she

“disrespected” Dill by spending Thanksgiving Day with Stafford,

Dill went to Willis-Riley’s apartment complex and lay in wait before

he ambushed Willis-Riley and Stafford, shot Stafford six times, and

then fled. By contrast, the evidence supporting Dill’s theory that the

killing amounted only to voluntary manslaughter was not

particularly compelling. A reasonable juror likely would have

rejected the idea that the alleged provocation—Dill seeing Willis-

22
Riley and Stafford walk to her apartment together—was sufficient

to provoke in a reasonable person an irresistible passion to kill

Stafford. See OCGA § 16-5-2(a). And it is not probable that the

evidence of the single missed call from Willis-Riley would have

persuaded the jury to conclude that Dill was reasonably provoked

and thus guilty of voluntary manslaughter instead of malice

murder.

Thus, Dill has not established a reasonable probability that the

outcome of his trial would have been different if trial counsel had

timely disclosed to the State the screenshot showing the missed call,

such that it would not have been excluded from evidence on that

ground. Accordingly, this claim of ineffective assistance fails. See

Blalock, 320 Ga. at 702. See also Isaac v. State, 319 Ga. 25, 31–32

(2024) (holding that trial counsel was not ineffective because the

appellant had not established prejudice from counsel’s failure to

present certain evidence, in light of the “strong” evidence of the

appellant’s guilt); Harper v. State, 318 Ga. 185, 193 (2024)

(concluding that the appellant’s trial attorneys were not ineffective

23
for failing to introduce certain evidence because the appellant could

not show prejudice, as he had not established that the evidence could

have “successfully bolstered his trial counsel’s defense strategy at

trial”). 12

(b) Dill also claims that trial counsel was ineffective for failing

to prepare him for cross-examination, which, he says, resulted in “an

involuntary waiver of his right to testify.” Specifically, Dill asserts

that before trial, he decided that he would not testify, so he “was not

prepared to take the stand”; after the trial court excluded the

evidence of the missed call from Willis-Riley’s phone, counsel failed

to “re-address the issue” of whether Dill wanted to testify, and “[a]s

12In his appellate brief, Dill baldly asserts that we should presume
prejudice because his ineffectiveness claim falls into the “constructive denial
of counsel” exception to Strickland. But as we have explained, “this exception
… applies only when there is a breakdown in the adversarial process, such that
counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing.” Isaac, 319 Ga. at 29 (cleaned up). Because counsel’s
failure to timely disclose the screenshot of the missed call is not the sort of
“complete” failure to subject the State’s case to meaningful adversarial testing
to which a presumption of prejudice applies, we apply the Strickland standard.
Id. at 30 (explaining that for the constructive denial of counsel exception to
apply, counsel’s failure must be “complete and occur throughout the proceeding
and not merely at specific points” (quotation marks omitted)). Cf., e.g., Blalock,
320 Ga. at 702 (applying the Strickland standard to a claim that trial counsel
was ineffective for failing to introduce certain evidence at trial).
24
a result, [Dill] could not make a voluntary and informed decision as

to whether he should take the stand in his defense.” Dill has not

established that counsel performed deficiently in this respect.

The record shows that after the trial court excluded the

evidence of the missed call from Willis-Riley’s phone, the court

explained to Dill that he had a right to testify, “no one c[ould]

prevent [him]” from testifying, and whether to testify was his

decision. The trial court then asked Dill if he wanted to testify, and

he said, “No.”

At the hearing on Dill’s motion for new trial, trial counsel

testified that before trial, Dill “did not seem interested” in testifying;

she did not believe “that he could add anything by testifying”; she

did not “go through a sample cross examination” with Dill because

the decision not to testify was made prior to trial, and she informed

Dill that he had a right to testify and that whether to testify was

ultimately his decision. She also testified that after the trial court

excluded the evidence of the missed call, she did not ask Dill again

if he wanted to testify, and she had no strategic reason for failing to

25
do so. Dill testified at the hearing that on the day of jury selection,

he and trial counsel discussed whether he would testify, and he

decided not to testify; his decision did not rest on the assumption

that the evidence of the missed call would be admitted; after the trial

court excluded the evidence of the missed call, he and counsel had

another conversation about whether he would testify; counsel

advised Dill not to testify because she was concerned that he might

admit guilt; Dill made the ultimate decision not to testify; and Dill

was also concerned that if he testified, he might have “sa[id] some

things that were close to admitting guilt.”

“A strategic 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 done the same.” Green v.

State, 311 Ga. 238, 246 (2021) (quotation marks omitted). Such

strategic decisions include the decision to advise a defendant not to

testify. See id. Moreover, “the decision whether to testify in one’s

own defense is a tactical decision to be made by the defendant

himself after consultation with trial counsel.” State v. Goff, 308 Ga.

26
330, 334 (2020) (quotation marks omitted).

Here, counsel testified at the motion for new trial hearing that

she determined that Dill’s testimony would not “add anything” to his

defense. And the evidence presented at the hearing supports a

finding that Dill did not express a desire to testify and that he and

counsel were concerned that if he did so, he might admit guilt. Thus,

counsel’s decision not to spend time prior to trial preparing Dill for

cross-examination was objectively reasonable.

And although Dill now argues that trial counsel should have

revisited the issue of whether Dill wanted to testify after the trial

court excluded the evidence of the missed call from Willis-Riley’s

phone (and counsel testified at the motion for new trial hearing that

she failed to revisit the issue and had no strategic reason for that

failure), the trial court was authorized to credit Dill’s testimony at

the hearing that counsel did in fact consult with him about testifying

after the evidence was excluded and that she advised him not to

testify because she was concerned that he would admit guilt. See

Anthony v. State, 311 Ga. 293, 297 (2021) (explaining that a trial

27
court is authorized to credit a witness’s testimony at the motion for

new trial hearing, even though it conflicts with other testimony at

the hearing, and that “in the absence of explicit factual and

credibility findings by the trial court, we presume implicit findings

were made supporting the trial court’s decision” (quotation marks

omitted)). And even if the trial court credited counsel’s testimony

on this point, a reasonable lawyer could have concluded that the

exclusion of the evidence of the missed call would not have affected

Dill’s decision not to testify, particularly given counsel’s assessment

that Dill’s testimony would not have been helpful, her concern

(which Dill shared) that he might admit guilt, and Dill’s assertion at

the motion for new trial hearing that the decision not to testify never

rested on an assumption that the evidence of the missed call would

be admitted.

Moreover, the record shows that trial counsel and the trial

court advised Dill that he had a right to testify and that the decision

whether to testify was ultimately his to make. And Dill testified at

the motion for new trial hearing that he personally made the

28
decision not to testify. See Nabors v. State, 320 Ga. 43, 50 (2024)

(“[W]hen a defendant has been advised of his rights and makes an

informed decision after consultation with trial counsel, a defendant’s

failure to testify on his own behalf [is not] in any way connected to

any alleged deficiency of his trial counsel.” (cleaned up)).

For all of these reasons, Dill has not established that trial

counsel performed deficiently with respect to Dill’s decision not to

testify. And that means that his claim of ineffectiveness fails. See

Goff, 308 Ga. at 334 (holding that trial counsel was not deficient for

advising the defendant against offering testimony in support of his

voluntary manslaughter theory because counsel was concerned

about how the defendant would perform on cross-examination and

because “a decision by [the defendant] to testify would have carried

the significant risks inherent in testimony by a defendant”); Gibson

v. State, 290 Ga. 6, 12 (2011) (concluding that trial counsel was not

deficient for failing to call the defendant to testify because the

defendant never indicated that he wanted to testify and he was

advised that the decision whether to testify was his to make); Wright

29
v. State, 285 Ga. 428, 434 (2009) (rejecting the defendant’s claim

“that her attorneys were ineffective by strongly advising her not to

testify at trial, and consequently, by failing to prepare her to testify,

thereby constructively denying her right to do so” because the

defendant was informed that whether to testify was her decision,

she affirmed that it was her personal decision not to testify, and her

attorneys testified at the motion for new trial hearing that they

advised her not to testify out of tactical concerns; and noting that

“[i]nasmuch as counsel’s goal was to keep [the defendant] from

taking the stand, counsel cannot be found to have been deficient for

any failure to prepare [her] to testify”).

Judgment affirmed. All the Justices concur.