MORRIS v. State

M
In the Supreme Court of Georgia



                                    Decided: April 5, 2021


                 S21A0191. MORRIS v. THE STATE.
                 S21A0192. MORRIS v. THE STATE.

      ELLINGTON, Justice.

      In 2009, a jury found Mims Michael Morris, Sr. (“Mims”), Mims

Michael Morris, Jr. (“Michael”), and Roy Bradshaw (“Roy”) guilty of

malice murder, felony murder, aggravated assault, and robbery in

the fatal beating of Earl Gill. 1 In Case No. S21A0191, Mims appeals,


      1 The attack occurred on March 15, 2008. A Putnam County grand jury
returned a joint indictment against Mims, Michael, Roy, and Teresa Bradshaw
for malice murder (Count 1), felony murder predicated on aggravated assault
(Count 2), aggravated assault (Count 3), kidnapping with bodily injury (Count
4), and robbery (Count 5). Following a joint trial of Mims, Michael, and Roy
that ended on October 2, 2009, a jury found all three defendants guilty on all
counts, except Count 4, which was withdrawn by the State at the close of its
case-in-chief. The trial court sentenced Mims and Michael to life in prison for
Count 1, 20 years in prison for Count 3, and 20 years in prison for Count 5,
with Counts 3 and 5 to run consecutively to the life sentence; Count 2 was
vacated by operation of law. Mims and Michael filed timely motions for new
trial. Mims amended his motion on January 7, 2020; Michael amended his
motion on May 27, 2014, and June 5, 2020. The trial court conducted hearings
on the motions on June 12, 2020, and entered an order on Mims’s motion on
July 13, 2020 and on Michael’s motion on August 3, 2020. In the orders, the
trial court determined that Count 3 merged with Count 1 as to both Mims and
challenging the sufficiency of the evidence supporting his

convictions. In Case No. S21A0192, Michael appeals, also

challenging the sufficiency of the evidence and contending that the

trial court committed plain error in failing to instruct the jury not to

consider Roy’s statement against him and that he received

ineffective assistance of counsel. 2 For the reasons explained below,

we affirm in both cases.

      Viewed in the light most favorable to the jury’s verdicts, the

record shows the following. Josh Morris (“Josh”) testified as follows.

On March 15, 2008, Josh and his brother, Michael, were staying at

an EconoLodge in Milledgeville, where they had traveled to do

landscaping work with Mims (their father) and Roy. At the time,

Mims was staying with Roy and his wife, Teresa Bradshaw

(“Teresa”), at the Bradshaws’ camp house at the lake. That




Michael, corrected the sentences to so reflect, and otherwise denied the
motions. Mims and Michael filed timely notices of appeal. The cases were
docketed in this Court to the term beginning in December 2020, consolidated,
and submitted for decision on the briefs.
      2 We have already affirmed Roy’s convictions. See Bradshaw v. State, 

300

Ga. 1

(792 SE2d 672) (2016).
                                      2
afternoon, Michael and Josh met Gill, who lived and worked at the

EconoLodge. The three of them discussed sharing some marijuana,

and Michael gave Gill money to purchase some. About 20 minutes

after Gill left to get the marijuana, he returned on foot to Josh’s room

at the EconoLodge; Josh, Josh’s wife, Michael, Michael’s girlfriend,

Mims, Roy, Teresa, and Gill’s friend and co-worker, Chris Vukovich,

were all in the room. Gill did not have any marijuana or Michael’s

money, and he told his new friends, “I’ve been got,” meaning that he

had been scammed. Gill said that he would go to his sister’s house

to get money to pay them back. Roy told Gill to “get in the van,” and

Michael said, “I’m going to ride with y’all” and got into the van. Gill

left the EconoLodge in the Bradshaws’ van with Roy, Teresa, Mims,

and Michael. Later that evening, Roy called Josh and told Josh to

“meet him at the store.” Josh drove with his wife to the store,

Michael got into his truck, and they followed Teresa, Roy, and Mims

in the Bradshaws’ van to their camp house at the lake.

     The chief deputy sheriff, who interviewed Josh after Josh was

taken into custody, testified that Josh told him that Josh heard

                                   3
Mims tell Gill “get in the car or I’ll kill you.” At trial, however, Josh

denied hearing Mims tell Gill to get in the van or threatening to kill

him.

       Michael Robins, a friend of Gill’s, testified as follows. He

encountered Gill at the EconoLodge that day. Gill, who was with two

“young dudes” whom Robins did not know, asked if Robins could get

them some marijuana. Robins said that he could, intending to con

them, and the two young strangers gave him $25, Gill gave him $10,

and Gill and the other two men chipped in a few dollars for gas. Gill

rode with Robins and two of Robins’s friends to a nearby WalMart,

supposedly so that Robins could meet someone who would supply

the marijuana. Robins went into WalMart alone, Robins’s friends

ordered Gill out of the car, and they left Gill at the WalMart.

       Teresa was the only witness to testify at trial regarding what

transpired after she, Roy, Mims, Michael, and Gill left the

EconoLodge in the van.3 She testified as follows. Teresa drove, Roy


       3 Teresa pleaded guilty to voluntary manslaughter prior to the trial and
was sentenced to 15 years with 6 to serve in prison on the condition that she
testify.
                                      4
sat in the front passenger seat, Gill and Mims sat in the middle

passenger seats, and Michael sat on the bench seat in the back. Gill

directed them to an apartment to try to find Robins, but Robins was

not there. As they continued driving around, Roy got out of his seat

in the front, confronted Gill about the missing money, and hit Gill.

Then Gill directed Teresa to Possum Point Drive, the street where

his sister lived. Gill was unable to find his sister’s house, however,

and Michael stood up and his “fists went to flying.” Michael hit Gill

“and kept hitting him and kept hitting him and kept hitting him.”

While this was happening, Teresa heard Mims say that Michael was

hitting Gill so hard that his feet were coming off the floor. Mims said

that Michael hit Gill about 15 times, so fast that he could not see the

blows and he could feel the wind coming off Michael’s fist. Then

Teresa heard one of the men say that they should throw Gill out of

the van. Roy had Teresa pull to the side of the road. Roy opened the

door and told the other men to get out. Either Mims or Michael, or

both, dragged Gill from the vehicle by his feet as he grabbed the back

of Teresa’s seat and begged them to stop.

                                  5
     Teresa testified further as follows. When Mims and Michael

had Gill on the ground, they started kicking him. Teresa yelled that

she was leaving, and Mims and Michael got back into the van.

Michael was holding Gill’s sneakers, and Roy told Teresa to drive

away. In the rear-view mirror, Teresa saw Gill get up and walk down

the road as she drove away. Mims said that he had been kicking Gill,

Gill grabbed his foot, and Mims fell, got back up, and kicked Gill

even harder. Michael commented that Gill might have $25 of his but

he had something of Gill’s – the shoes. Michael tried on the shoes,

and they did not fit, so he gave them to Mims, who was wearing

“dark beige Hush Puppy-type shoes” at the time. Teresa stopped to

buy gas, and Mims and Michael went into the store to buy

refreshments. Either Roy or Mims called Josh and told Josh to meet

them at the store. After Josh and his wife arrived at the store, they

all went to the Bradshaws’ lake house for the night.

     Joanne Jenkins and Roger Kent, who lived on Possum Point

Drive, testified that Gill knocked on their door that night and

identified himself as “Earl.” His head was bloody, and he seemed

                                 6
disoriented. He asked to be taken to the hospital and told the couple

“two men beat me up and threw me out.” Kent took Gill to the

hospital; hospital personnel alerted law enforcement of the apparent

crime.

     After arresting Roy, Mims, and Michael four days after the

attack, an investigator took photos of Mims’s and Roy’s hands

because they appeared swollen, although Michael’s did not. The

Putnam County sheriff testified that, after being arrested, Roy

admitted that he “popped the man upside the head in the truck” and

hit Gill “probably about three times.” Roy also told the sheriff,

“Yeah, I swung on this guy a couple of times, but I didn’t do nothing

like that right there. Because, like I said, I didn’t have any money

involved in this.” Although Roy admitted that he hit Gill in the van,

Roy claimed that his participation in the attack “didn’t happen out

of the truck” and that his “feet never hit the ground” when Teresa

stopped the van.

     The Bradshaws’ niece, Brittany Bradshaw, testified that, in

the days after the attack, she had conversations with Teresa, Roy,

                                 7
and Mims about what happened when they went to Milledgeville.

Brittany testified: “The first thing that [Teresa] had ever said to me

was that she didn’t realize how good her husband could fight until

she seen him fighting with this other guy.” Teresa told Brittany that

they had given a man money to buy marijuana, the money was taken

from him, and they left in the van so the man could get the money

back. Teresa told Brittany that the man could not get the money and

that, while Teresa was driving the van, Roy started “beating [the

man’s] head up against the van and stomping him in the head.”

Teresa also told Brittany that either Roy or Mims had taken the

man’s shoes off, “put them on their feet and stomped his head with

them.” Roy told Brittany that they had jumped on the man, beaten

him, and thrown him out of the van. Mims told Brittany that “they

had beat the hell out of someone.”

     Amy Warnock, who considered Teresa her best friend, testified

that Teresa told her about the assault on Gill for which Teresa had

pleaded guilty. Warnock testified:

     [Teresa] told me that she knew her husband could fight,

                                  8
     but she didn’t know how well until that weekend. And she
     said that they went to Milledgeville and they had given a
     man – no name, just a man – $25 to get them marijuana.
     The man came back with no money and no marijuana.
     [The man] and Roy Lee Bradshaw got in [an] argument
     and began to fight . . . until there was blood in the van
     everywhere. . . . And they dropped [the man] off.

     Gill’s blood was found in multiple places inside the Bradshaws’

van, along with a bloody baseball bat. Investigators obtained a

recording from the security system at the gas station where Teresa

stopped after the attack. The security video was played at trial. The

security video depicted Mims wearing bright white sneakers when

he went into the store to buy beer. Gill’s friend Vukovich testified

that Gill had bleached and washed his sneakers that morning and

that they were “snow white.” In the security video, Michael can be

seen looking down at the back of both of his own fists, removing a

drink from the cooler and rubbing it against the knuckles of his right

hand, looking again at the back of his right hand, and then shaking

his hand as if in pain. In the security video, as Michael waits to pay

for his drink, Teresa is seen opening the door and is heard telling

Michael that they needed to leave.

                                  9
      Gill died ten days after the attack from multiple, blunt-force

injuries of the head, which included surface bruising and

lacerations, facial bone fractures, a large subdural hemorrhage, and

catastrophic swelling of the brain. He also had a broken rib, which

the medical examiner testified would not have been fatal.

                            Case No. S21A0191

      1. Mims contends that the evidence presented at trial was

insufficient to warrant his convictions for malice murder and

robbery.4 We disagree.

      (a) As to his murder conviction, Mims argues that the evidence

established that either Michael or Roy or both caused Gill’s fatal

head injuries and that there was no evidence that he aided or

encouraged them in beating Gill. And, Mims argues, even if there

was evidence that he kicked Gill, there was no evidence that the




      4 In another enumerated error, Mims also contends that the trial court
erred by failing to merge the aggravated assault conviction into the malice
murder conviction, but the sentencing error was corrected in the order denying
his motion for new trial. Accordingly, this claim of error is moot. See Williams
v. State, 

305 Ga. 776

, 784 (4) (827 SE2d 849) (2019).
                                      10
kicking was a cause of Gill’s death.

     Mims, Michael, and Roy were jointly charged, “acting together

and as parties to the crime,” in beating Gill to death. See OCGA §

16-2-20 (b) (A person is a party to a crime if that person “[d]irectly

commits the crime; . . . [i]ntentionally aids or abets in the

commission of the crime; or . . . [i]ntentionally advises, encourages,

hires, counsels, or procures another to commit the crime.”). Properly

viewed in the light most favorable to the jury’s verdicts, see Jackson

v. Virginia, 

443 U.S. 307

, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)

(1979), the evidence showed that, after learning about Michael’s lost

or stolen money, Mims demanded that Gill get into the van; he

verbally encouraged the attack on Gill in the van; and he kicked Gill

while Gill lay on the ground. In the days before Mims and the others

were arrested, Mims acknowledged his involvement in the brutal

attack to the Bradshaws’ niece. And when Mims was arrested a few

days after the attack on Gill, Mims’s hands appeared swollen. The

evidence was sufficient for a rational jury to find beyond a

reasonable doubt that Mims was a party to Gill’s murder, and a

                                 11
conviction for murder was therefore authorized. See

id.

(b) As to

his robbery conviction, Mims argues that there was no

evidence that he took Gill’s shoes from Gill’s person by use of force,

as alleged in the indictment. Rather, he argues, Teresa’s testimony

shows that Michael took the shoes from Gill: Michael had the shoes

when he and Mims got back into the van; Michael tried the shoes on

first; and then Michael gave them to Mims. Mims argues that the

gas station security video could not support a finding that the white

shoes Mims was wearing were Gill’s shoes, which were never

recovered.

     But Mims, Michael, and Roy were charged jointly with robbery,

“acting together and as parties to the crime,” by stealing Gill’s shoes.

The evidence shows that, before the attack, Gill was wearing his

bright white sneakers and that, after the attack, he was shoeless

when he made his way to a house to ask for help. Before being

arrested, Teresa told her niece that either Roy or Mims had taken

Gill’s shoes off, put the shoes on, and stomped Gill’s head with them.

And at trial, Teresa testified that, after the attack, Michael gave

                                  12
Gill’s shoes to Mims, who was depicted wearing white sneakers in

the security video, rather than the dark beige Hush Puppy-type

shoes he had been wearing earlier. Irrespective of which person took

Gill’s shoes from his feet, the evidence was sufficient for a rational

jury to find beyond a reasonable doubt that Mims was a party to the

taking of Gill’s shoes by force. See 

Jackson, 443 U.S. at 319

(III) (B).

                               Case No. S21A0192

      2. Michael contends that the evidence presented at trial was

insufficient to support his convictions because the only evidence that

he was more than merely present for the charged crimes was

accomplice testimony that was not corroborated by independent

evidence, as required by former OCGA § 24-4-8. 5 Specifically, he

argues that Teresa was an accomplice and that the only evidence

that he participated in the attack on Gill was introduced through

her trial testimony and her prior statements that she saw Michael


      5 Under former OCGA § 24-4-8, which applied to the trial of the case in
2009, “[in] felony cases where the only witness is an accomplice, the testimony
of a single witness is not sufficient [to establish a fact]. Nevertheless,
corroborating circumstances may dispense with the necessity for the testimony
of a second witness[.]”
                                      13
hit Gill and saw Michael return to the van with Gill’s shoes after the

beating. Michael also argues that Teresa’s testimony that she heard

Mims make statements about Michael hitting Gill could not

corroborate her testimony, because Mims’s statements only came

into evidence through Teresa herself and are not independent of her

testimony as an accomplice.

     Corroborating evidence that satisfies the requirements of

former OCGA § 24-4-8

     may be circumstantial, it may be slight, and it need not of
     itself be sufficient to warrant a conviction of the crime
     charged. It must, however, be independent of the
     accomplice testimony and must directly connect the
     defendant with the crime, or lead to the inference that he
     is guilty. Slight evidence from an extraneous source
     identifying the accused as a participant in the criminal act
     is sufficient corroboration of the accomplice to support a
     verdict.

Styles v. State, 

309 Ga. 463

, 466-467 (1) (847 SE2d 325) (2020)

(citation and punctuation omitted) (applying former OCGA § 24-4-

8). Teresa’s testimony and statements about Michael’s involvement

in the attack were corroborated, including by the testimony and

pretrial statement of his brother, Josh, that Michael was angry at

                                 14
the loss of his money and, after Mims told Gill “get in the car or I’ll

kill you,” Michael opted to join in the excursion in the van to go to

Gill’s sister’s house to get money from her. Teresa’s statement was

also corroborated by the security video showing Mims, Michael, and

Teresa together, minutes after the beating, with Mims wearing

bright white shoes like Gill had been wearing that day and Michael

looking at his knuckles and shaking his right hand. This

circumstantial evidence might not be sufficient on its own to

authorize a conviction for murder and robbery, but it provided the

corroboration of Teresa’s testimony necessary for the jury to find

Michael guilty of those offenses. See 

Styles, 309 Ga. at 467

(1);

Taylor v. State, 

297 Ga. 132

, 135 (772 SE2d 630) (2015) (applying

former OCGA § 24-4-8). The record also shows that the evidence was

sufficient to enable a rational trier of fact to find Michael guilty

beyond a reasonable doubt as a party to the crimes for which he was

convicted. See 

Jackson, 443 U.S. at 319

(III) (B).

     3. Michael contends that his trial counsel rendered ineffective

assistance by failing to object to the admission of Roy’s custodial

                                  15
statement. The statement at issue was introduced through the

sheriff, who testified that Roy admitted that he “popped [Gill] upside

the head,” hit him “probably about three times,” and “swung on

[him] a couple of times,” but claimed, “I didn’t do nothing like that

right there. Because, like I said, I didn’t have any money involved in

this.” 6 Although, as summarized by the sheriff, Roy did not refer to

Michael, Michael argues that, taken in context, Roy’s statement

obviously leads to the inference that Michael participated in the

attack. That context includes the evidence presented at trial that

Michael was the person who gave Gill the money that he lost and

that Michael was particularly interested in recouping his loss.

Because     Roy’s     statement      implicated      Michael,     he    argues,

introduction of the statement at trial violated his right to confront

witnesses under the Sixth Amendment of the United States


      6 During the hearing on Roy’s motion to exclude his custodial statement
the sheriff explained that Roy’s reference to something “like that right there”
was to a photograph of Gill after the attack that the sheriff showed to Roy
during the interview. The trial court denied Roy’s motion to exclude the
statement. The State opted to question the sheriff about the limited portions
of the statement set out above, however, and not to play the recording of the
interrogation for the jury, so the reference to something “like that right there”
was not explained to the jury.
                                       16
Constitution and Bruton v. United States, 

391 U.S. 123

(88 SCt

1620, 20 LE2d 476) (1968), and failure to object on that ground was

deficient performance by trial counsel. Michael contends that he was

prejudiced by counsel’s failure to object because, without Roy’s

statement, the jury would have found that Teresa’s testimony about

Michael’s participation was not corroborated.

     To succeed on his claim of ineffective assistance of counsel,

Michael “must prove both that his lawyer’s performance was

professionally deficient and that he was prejudiced as a result.”

Styles, 309 Ga. at 471

(5) (citation and punctuation omitted). See

also Strickland v. Washington, 

466 U.S. 668

, 687 (104 SCt 2052, 80

LE2d 674) (1984).

     A defendant’s Sixth Amendment right to be confronted by the

witnesses against him is violated under Bruton

     when co-defendants are tried jointly and the testimonial
     statement of a co-defendant who does not testify at trial
     is used to implicate another co-defendant in the crime.
     However, Bruton excludes only the statement of a non-
     testifying co-defendant that standing alone directly
     inculpates the defendant. Bruton is not violated if a co-
     defendant’s statement does not incriminate the defendant

                                17
     on its face and only becomes incriminating when linked
     with other evidence introduced at trial.

Pender v. State, __ Ga. __, __ (2) (a) (Case No. S20A1505, decided

Mar. 15, 2021) (citations and punctuation omitted). See also Ardis v.

State, 

290 Ga. 58

, 60 (2) (a) (718 SE2d 526) (2011).

     As   Michael’s   argument     reveals,   Roy’s    statement   only

incriminates Michael when combined with other evidence presented

at trial from which the jury could conclude that Michael participated

in beating Gill and taking his shoes. Consequently, admitting Roy’s

statement did not violate Michael’s right to confront witnesses

under the Sixth Amendment and Bruton. See Taylor v. State, 

304

Ga. 41

, 45-46 (2) (816 SE2d 17) (2018); McLean v. State, 

291 Ga. 873

,

876 (3) (738 SE2d 267) (2012). Any objection therefore would have

been futile, and “[t]he failure to make a meritless motion or objection

does not provide a basis upon which to find ineffective assistance of

counsel.” White v. State, 

307 Ga. 882

, 889 (3) (c) (838 SE2d 828)

(2020) (citation and punctuation omitted).

     4. Michael contends that, even if Roy’s custodial statement did


                                  18
not   expressly   implicate   him,     he   was   entitled   under   the

Confrontation Clause of the Sixth Amendment of the United States

Constitution to have the jury instructed that it could consider Roy’s

statement only against Roy. Without such a limiting instruction,

Michael argues, the jury may have believed, wrongfully, that it could

consider Roy’s statement as corroboration of Teresa’s testimony

about Michael’s participation. As with his related claim of ineffective

assistance of counsel, Michael contends that he was prejudiced

because, if the jury had been instructed to consider Roy’s statement

only against Roy, the jury would have found that Teresa’s testimony

about Michael’s participation was not corroborated. Consequently,

Michael contends, the trial court committed plain error by not

instructing the jury sua sponte that it could not consider Roy’s

statement as evidence of Michael’s guilt.

      To establish plain error, the appellant

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

                                  19
      proceedings. To show that his substantial rights were
      affected, [the appellant] must make an affirmative
      showing that the error probably did affect the outcome
      below. If [the appellant] fails to meet any one of the
      elements of the plain error test, his claim fails.

Armstrong v. State, __ Ga. __, __ (4) (852 SE2d 824) (2020) (citations

and punctuation omitted). Assuming without deciding that it was an

obvious error not to instruct the jury to limit its use of Roy’s

statement to the case against Roy,7 we conclude that Michael fails

to show that the error probably affected the outcome below.

Although Roy’s statement conveyed that he did not inflict Gill’s more



      7 See Colton v. State, 

292 Ga. 509

, 511 (2) (739 SE2d 380) (2013) (“[A] co-
defendant’s statement meets the Confrontation Clause’s standard for
admissibility when it does not refer to the existence of the defendant and is
accompanied by instructions limiting its use to the case against the confessing
co-defendant.” (citation and punctuation omitted)); see also Richardson v.
Marsh, 

481 U.S. 200

, 211 (II) (107 SCt 1702, 95 LE2d 176) (1987) (“[T]he
Confrontation Clause is not violated by the admission of a nontestifying
codefendant’s confession with a proper limiting instruction when . . . the
confession is redacted to eliminate not only the defendant’s name, but any
reference to his or her existence.” (footnote omitted)); Suggested Pattern Jury
Instructions, Vol. II: Criminal Cases, § 1.31.93 (B) (4th ed., 2007, updated
January 2020) (“Any out-of-court statement made by one of the defendants on
trial in this case after the alleged criminal act has ended may be considered
only against the person who made the statement and only if you find that such
statement was freely and voluntarily made. If you find that an out-of-court
statement was made to the police freely and voluntarily by a defendant on trial
in this case, then you are to consider the statement only as against the
particular defendant who made it.”).
                                       20
severe injuries, Roy did not directly identify Michael as a participant

in the attack, and there was other substantial evidence that

corroborated Teresa’s testimony about Michael’s participation, as

discussed above in Division 2. See White v. State, 

270 Ga. 804

, 810

(4) (b) (514 SE2d 14) (1999). Because Michael failed to show that the

trial court’s instructional error, if any, probably affected the outcome

of the trial, his plain error argument fails.

      5. Michael contends that his trial counsel rendered ineffective

assistance by failing to object to prior consistent statements used to

bolster the State’s key witness. Specifically, Michael argues that

Teresa’s testimony that she saw Michael hit Gill and that she heard

Mims make statements about Michael’s involvement in the attack

were repeated multiple times through the sheriff and a detective,

who testified that Teresa said the same in her custodial statements. 8



      8  On direct examination, the sheriff testified that Teresa told him that
Michael “was back there [in the van] beating [Gill’s] tail” and that “Mims
bragged on his son about his son’s skill beating the man” and about “the
prowess of his son’s fighting.” On cross-examination by Roy’s attorney, the
sheriff testified that Teresa stated that Michael “was back there hitting on Mr.
Gill.” On direct examination, the detective testified that Teresa “mentioned

                                      21
The court instructed the jury to consider prior consistent statements

as substantive evidence. Michael argues that, even if Teresa’s prior

statements were introduced to show that, in her trial testimony, she

was trying to minimize Roy’s involvement, the statements relating

to Michael would not be admissible to rebut a claim of fabrication or

motive relating to Roy. And, Michael argues, even if the defendants

attacked Teresa’s credibility generally, impeachment does not open

the door for bolstering the witness’s credibility with prior consistent

statements.

      At the hearing on Michael’s motion for a new trial, his trial

counsel was not asked, and did not volunteer, his rationale in not

objecting to testimony about Teresa’s prior consistent statements.

Even assuming that Teresa’s prior consistent statements were

objectionable under then-prevailing law, 9 without trial counsel’s



that Mims, Sr. was bragging about his son hitting [Gill] inside of the van, that
he could feel the breeze off of his son’s fists as he came around to strike Mr.
Gill.”
       9 At the time of Michael’s trial in 2009, Georgia case law established that

a witness’s prior consistent statement is admissible as substantive evidence at
trial but

                                       22
testimony or some other evidence explaining the basis for his

decisions, Michael cannot overcome the presumption that those

decisions were strategic. See Hill v. State, __ Ga. __, __ (10) (850

SE2d 110) (2020). Teresa’s pretrial custodial statements, like her

trial testimony, tended to minimize the role of her husband Roy and

to focus blame on Michael and Mims for the fatal injuries inflicted

on Gill. But those custodial statements, like Teresa’s trial testimony,

contrasted with her pretrial confidences to her niece and best friend

when Teresa spoke about being surprised by Roy’s prowess as a

fighter and did not mention Michael throwing even a single punch.

In light of this contrast, opting not to object to testimony about

Teresa’s custodial statements was within the realm of objectively

reasonable trial strategy, as the trial court found. See Gardner v.



     only where (1) the veracity of a witness’s trial testimony has been
     placed in issue at trial; (2) the witness is present at trial; and (3)
     the witness is available for cross-examination. A witness’s veracity
     is placed in issue so as to permit the introduction of a prior
     consistent statement only if affirmative charges of recent
     fabrication, improper influence, or improper motive are raised
     during cross-examination.
Broner v. State, 

284 Ga. 402

, 403 (2) (667 SE2d 613) (2008) (citation and
punctuation omitted).
                                    23
State, __ Ga. __, __ (2) (852 SE2d 574) (2020) (“[D]ecisions 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.” (citation and

punctuation omitted)). Consequently, Michael’s claim of ineffective

assistance of counsel fails. See Davis v. State, 

306 Ga. 140

, 148 (3)

(g) (829 SE2d 321) (2019).

     Judgments affirmed. All the Justices concur.




                                 24

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