FINAL COPY
294 Ga. 560


                  S13A1620. WASHINGTON v. THE STATE.


       BLACKWELL, Justice.

       Melvin Washington, Jr., was tried by a Bibb County jury and convicted

of murder and the unlawful possession of a firearm during the commission of

a felony, both in connection with the fatal shooting of Tanisha Hardman.

Washington appeals, contending that the evidence is insufficient to sustain his

convictions, that the trial court erred when it admitted evidence of his bad

character, and that he was denied the effective assistance of counsel. Upon our

review of the record and briefs, we see no error, and we affirm.1


       1
         Hardman was killed on December 7, 2008. Washington was indicted on February
16, 2010, and he was charged with malice murder, felony murder, and unlawful possession
of a firearm during the commission of a felony. His trial commenced on August 16, 2010,
and the jury returned its verdict on August 20, 2010, finding him guilty on all counts.
Washington was sentenced to a term of imprisonment for life for malice murder and a
consecutive term of imprisonment for five years for unlawful possession of a firearm during
the commission of a felony. The verdict as to felony murder was vacated by operation of law.
Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). Washington timely filed
a motion for new trial on August 23, 2010, and he amended it on February 4, 2013. The trial
court denied the motion on May 8, 2013. Washington timely filed a notice of appeal on June
5, 2013, and the case was docketed in this Court for the September 2013 term and argued on
October 7, 2013. By the way, Washington asserted claims of error in his briefs with respect
to a grant of immunity to a witness for the prosecution, but at argument, he expressly
withdrew those claims of error, and we do not consider them in this opinion.
      1. We begin with the legal sufficiency of the evidence. Viewed in the light

most favorable to the verdict, the evidence shows that Washington worked at a

Wal-Mart store in Macon, and although he was married, he had sexual

relationships with two of his coworkers, Hardman and Lisa Coleman. In October

2008, his wife learned of his relationship with Coleman, and on December 3, his

wife gave birth to his child. Two days later, Hardman took a home pregnancy

test, and she told her roommates that she was pregnant and that Washington was

the father of her unborn child. Also on December 5, Hardman and Washington

exchanged several telephone calls and text messages. The following day,

Hardman sent a text message to her cousin, in which she said that she wanted

to keep the baby, but the father was “talking about not having [the baby].” She

also told her cousin that she was seeing someone who was in a bad situation.

      Early on the afternoon of December 7, Hardman went to a local hospital,

where her pregnancy was confirmed.2 Hardman told her cousin that she was to


      2
        At the hospital, Hardman reported that she last menstruated in October, which was
consistent with her earlier statement to her roommates that she must have become pregnant
when she last was intimate with Washington on November 8. At trial, the medical examiner
opined that her unborn child was conceived only a week or two before her death, but the
medical examiner admitted that she had not examined Hardman’s medical records, that she
did not know when Hardman last menstruated, and that an obstetrician or fertility expert
could better speak to the date of conception. About paternity, it could not be determined

                                           2
meet that evening with the father of her unborn child, after her shift at the store

ended. Early that evening, when she took a break from her work at the store,

Hardman spoke by telephone with some relatives, to whom she revealed her

pregnancy and expressed excitement about it. Also that evening, Washington

drove his father from Macon to Warner Robins, and along the way, he told his

father that he “probably had [gotten] a girl pregnant.”3 As Washington returned

to Macon, he and Hardman spoke by telephone for about seven minutes,

beginning at 8:38 p.m. Around twenty minutes later, just after Hardman left the

store, they briefly spoke again by telephone. Cell tower records show that both

Washington and Hardman were in the vicinity of the apartment complex where

her body would be discovered on the next morning.4 Although Washington

testified at trial that he made no stops between Warner Robins and his own


conclusively because the conception was relatively recent, according to a forensic biologist.
In any event, the theory of the prosecution in this case did not depend upon a precise
identification of the date of conception or a conclusive determination of paternity. Whether
Washington was, in fact, the father of the unborn child, the prosecution urged that both
Washington and Hardman believed him to be the father. We note as well that Washington
was not charged with feticide. See OCGA § 16-5-80.
         3
       At trial, Washington testified, and he admitted that he knew in December 2008 that
he might be the father of the unborn child.
         4
             This complex was only a two-minute drive from the apartment in which Washington
lived.

                                               3
apartment, the evidence shows that his key card was not used to reenter his

apartment complex until 9:24 p.m., suggesting that he did, in fact, stop

somewhere along the way. Around 7:00 a.m. on the next day, Washington went

to work at the store, and so did Coleman. As soon as she arrived at the store,

Coleman learned that Hardman had been killed, even though her body was not

discovered until about 8:20 a.m.

      When her body was discovered, Hardman was already in a state of rigor

mortis, which usually occurs several hours after death. Hardman was fully

clothed, she still was wearing her Wal-Mart work shirt, and her car keys and

purse were found with her body. Her cell phone, however, was never found, and

investigators did not obtain her cell phone call records until December 10. But

when Washington returned to his home around noon on December 8, he told his

wife — correctly, it turned out — that he had been the last person to call the cell

phone of a woman who had been found dead. Washington also told his wife that

law enforcement officers would be coming to talk with him.

      According to the medical examiner, Hardman died of a contact gunshot

wound to the back of her head. An Independence-brand shell casing was found

near her body, and the evidence showed that it had been ejected from a 9mm

                                        4
High Point handgun. At trial, Washington’s brother-in-law testified that he had

asked Washington to keep his 9mm High Point handgun, that it was loaded with

Independence-brand ammunition, that Washington had not returned the handgun

before Hardman was killed, and that his prior statements that the gun had been

stolen were, in fact, lies. While Washington had the handgun, he offered to sell

a gun to a coworker, who declined the offer.

      Washington disputes the legal sufficiency of the evidence, arguing that the

prosecution case was based on circumstantial evidence that does not exclude

every other reasonable hypothesis because, if his own lawyer had not failed to

obtain and present a large amount of evidence, the jury would have had

numerous other suspects to consider.5 But in determining the legal sufficiency

of the evidence, we not only “consider all of the evidence admitted by the trial

court, regardless of whether it was erroneously admitted, [but we also] disregard

any additional evidence which a competent attorney might have obtained.”

Green v. State, 291 Ga. 287, 289 (1) (728 SE2d 668) (2012) (citations omitted).

Moreover, “where the jury is authorized to find that the evidence, though


      5
       As discussed below, Washington’s claims that he was denied the effective assistance
of counsel involve an alleged failure to investigate and offer more evidence.

                                            5
circumstantial, was sufficient to exclude every reasonable hypothesis save that

of guilt, the appellate court will not disturb that finding, unless the verdict of

guilty is unsupportable as a matter of law.” Blevins v. State, 291 Ga. 814, 816

(733 SE2d 744) (2012) (citation and punctuation omitted). Viewing all the

evidence admitted by the trial court (and only that evidence) in the light most

favorable to the verdict, we conclude that it was sufficient to exclude every

reasonable hypothesis other than Washington’s guilt and to authorize a rational

trier of fact to find beyond a reasonable doubt that he was guilty of the crimes

of which he was convicted. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99

SCt 2781, 61 LE2d 560) (1979). See also Simmons v. State, 291 Ga. 705, 706

(1) (733 SE2d 280) (2012).

      2. We next consider the contention that the trial court erred when it

admitted evidence of Washington’s bad character, specifically, his extramarital

relationship with Coleman. Under former OCGA § 24-2-2, “[t]he general

character of the parties and especially their conduct in other transactions are

irrelevant matter unless the nature of the action involves such character and




                                        6
renders necessary or proper the investigation of such conduct.”6 But if “the

evidence of other acts is relevant for some other purpose than to show a

probability that the defendant committed the crime because he is a man of

criminal character, the evidence is admissible despite incidentally placing the

defendant’s character in issue.” Mikell v. State, 274 Ga. 596, 598 (2) (555 SE2d

433) (2001). Consequently, “[t]he State is authorized to present evidence of a

defendant’s possible motive for committing a crime, and such evidence does not

become inadmissible merely because it may incidentally place the defendant’s

character in issue.” Garrett v. State, 280 Ga. 30, 31 (3) (622 SE2d 323) (2005)

(citations omitted). For instance, “we have previously allowed evidence of a

husband’s extramarital affairs when the evidence was relevant to disprove his

theory that another man attacked his wife and to show a wife’s motive and

scheme for the murder of her husband.” Mikell, 274 Ga. at 598 (2) (footnotes

omitted).




      6
        Because this case was tried before January 1, 2013, our new Evidence Code does not
apply. See Ga. L. 2011, pp. 99, 214, § 101. We note, however, that OCGA § 24-2-2 “was
superseded by OCGA § 24-4-404.” Johnson v. State, 293 Ga. 641, 644 (6), n. 3 (748 SE2d
896) (2013) (citation omitted). See also OCGA § 24-4-405.

                                            7
       In this case, the State sought to show that Washington had a motive to

conceal his extramarital affair with Hardman not only from his wife, but also

from Coleman. The evidence shows that Coleman did not know about his

relationship with Hardman and, although Washington insists that his affair with

Coleman had ended by the time Hardman was killed, the jury could have

inferred that he wanted it to continue.7 Because the nature of Washington’s

relationship with Coleman was relevant to the issue of his motive for killing

Hardman, it was properly admitted into evidence. See Garrett, 280 Ga. at 31 (3);

Knowles v. State, 246 Ga. 378, 384-385 (5) (271 SE2d 615) (1980), disapproved

on other grounds, Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998).

See also Tucker v. State, 249 Ga. 323, 329 (6) (290 SE2d 97) (1982); Darling

v. State, 248 Ga. 485, 486-487 (3) (284 SE2d 260) (1981). Cf. Herring v. State,

288 Ga. App. 169, 175 (2) (c) (653 SE2d 494) (2007) (evidence of the

defendant’s sexual disposition was inadmissible in the absence of evidence

linking it to the charged offense).


       7
         Although Coleman testified that the relationship had ended in October 2008,
Coleman stayed in contact with Washington, talking with him a couple of times a week until
the time of trial and receiving letters from him, which were hand-delivered by a mutual friend
instead of mailed to the home Coleman shares with her husband.

                                              8
      3. We turn at last to the claim that Washington’s trial lawyer was

ineffective because he failed to investigate and present evidence to the jury of

other potential suspects and because he failed to cross-examine or call certain

other witnesses whose testimony, Washington now says, would have

strengthened his case. To prevail on a claim of ineffective assistance,

Washington must prove both that the performance of his lawyer was deficient

and that he was prejudiced by this deficient performance. Strickland v.

Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To

prove that the performance of his lawyer was deficient, Washington must show

that the lawyer performed his duties at trial in an objectively unreasonable way,

considering all the circumstances, and in the light of prevailing professional

norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U. S. 365,

381 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986). And to prove that he was

prejudiced by the performance of his lawyer, Washington must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U. S. at 694 (III) (B). See also Williams v. Taylor, 529 U. S. 362, 391 (III) (120

                                        9
SCt 1495, 146 LE2d 389) (2000). This burden, although not impossible to carry,

is a heavy one. See Kimmelman, 477 U. S. at 382 (II) (C). We conclude that

Washington has failed to carry his burden.

      Washington identifies five individuals who, he says, could have been the

father of Hardman’s unborn child and should have been, therefore, investigated

and presented to the jury as potential suspects in her killing. But as the trial

court explained in its order denying the motion for new trial, Washington’s

lawyer testified that, with the help of two investigators, he considered whether

there were any other persons with whom Hardman had a sexual relationship

during the relevant time, and he could find no credible evidence of such persons.

His investigation included a consideration of all of the witnesses identified by

Washington, as well as interviews with the men that Hardman was rumored to

have dated. The evidence on the motion for new trial showed that the lawyer

could locate no credible evidence that any person besides Washington had a

belief that he was the father of the unborn child, much less that any such

individual was actually a viable suspect in the murder. See Cook v. State, 274

Ga. 891, 897 (7) (561 SE2d 407) (2002). “Despite counsel’s efforts, he was

unable to connect any additional suspect to the shooting.” Jennings v. State, 288

                                       10
Ga. 120, 124 (6) (e) (702 SE2d 151) (2010). As a result of his investigation, the

trial court found, the lawyer made a reasonable strategic decision to contend at

trial only that the State had failed to prove that Washington was guilty, rather

than to attempt to make an affirmative case that some specific other person

might have committed the crime, whether by calling witnesses to identify other

suspects or by calling the suspects themselves. “[I]nformed strategic decisions

do not amount to inadequacy under Strickland.” Cook, 274 Ga. at 897 (7)

(citation omitted). “In light of counsel’s reasonable investigation, evidence

supports the conclusion that [Washington] has failed to meet his burden of

proving deficient performance by his trial counsel.” Jennings, 288 Ga. at 124 (6)

(e) (citation omitted). And in any event, Washington failed to call any of these

other potential suspects to testify on his motion for new trial, and for that reason,

he cannot show prejudice with respect to the failure to call them as witnesses at

his trial. See Jones v. State, 292 Ga. 593, 599-600 (7) (c) (740 SE2d 147)

(2013).

      Besides the failure to point to other potential suspects, Washington claims

that his lawyer was ineffective because he failed to adequately cross-examine

one witness at trial and because he failed to call another. As for cross-

                                         11
examination, the witness in question could have testified that it was not

uncommon for Hardman not to come home at night, but Washington’s lawyer

never elicited such testimony on cross-examination, although he knew from a

pretrial hearing that the witness could so testify. But at the hearing on his motion

for new trial, Washington never asked his lawyer why he did not bring out the

testimony on cross-examination. As we have explained, “when trial counsel

does not testify at the motion for new trial hearing about the subject, it is

extremely difficult to overcome the presumption that his conduct was

reasonable.” Shaw v. State, 292 Ga. 871, 876 (3) (b) (742 SE2d 707) (2013)

(citation and punctuation omitted). A reasonable lawyer might have worried that

such a vague circumstance — that Hardman sometimes did not come home at

night — could have any number of explanations, that eliciting testimony about

it could be perceived by the jury as an attack on the victim, and in any event,

that such a circumstance did not show that Hardman was dating someone else

who might have killed her, at least not strongly enough to offset the potential

downside of the evidence. Washington has failed to show that not eliciting

testimony from this witness about Hardman not coming home at night amounts

to ineffective assistance.

                                        12
      As for the potential witness who was never called at trial, the trial court

found, as authorized by the evidence on motion for new trial, that this witness

could have contradicted the testimony of Washington’s wife and brother-in-law

that the brother-in-law did not leave a party he was attending at Washington’s

apartment on the evening of the murder. But that testimony from the wife and

brother-in-law was corroborated at trial by Washington himself. A reasonable

lawyer might well have wished not to undermine his own client’s testimony in

this way. It is settled that the determination of which defense witnesses to call

and the extent of cross-examination are matters of trial strategy and tactics, and

such strategic and tactical decisions do not amount to deficient performance

unless they are so unreasonable that no competent attorney would have made

them under similar circumstances. Shaw, 292 Ga. at 876 (3) (a); Smith v. State,

288 Ga. 348, 353 (8) (f) (703 SE2d 629) (2010). Washington has failed to show

that his trial lawyer performed in an objectively unreasonable way when the

lawyer failed to call the additional potential witness.

      Judgment affirmed. All the Justices concur.




                                       13
                         Decided February 24, 2014.

      Murder. Bibb Superior Court. Before Judge Christian, Senior Judge.

      G. B. Moore III, Kelly L. McLain, Leonard D. Myers, Jr. for appellant.

      K. David Cooke, Jr., District Attorney, Elizabeth K. Bobbitt, Doroth V.

Hull, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia

B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant

Attorney General, Benjamin H. Pierman, Assistant Attorney General, for

appellee.




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