FINAL COPY
294 Ga. 526

                     S13A1532. LEWIS v. THE STATE.


      MELTON, Justice.

      This is the third appearance of this case in this Court. Following Willie

Henry Lewis’ 2003 conviction for malice murder and numerous other offenses,

his 2005 appeal to this Court was dismissed as untimely. See Case No.

S05A2037. Lewis filed a pro se extraordinary motion for new trial, and he was

appointed new counsel for the purposes of pursuing an out-of-time motion for

new trial and a direct appeal. Lewis then filed a motion for an out-of-time

appeal, which was granted on June 24, 2011. In the second appearance of Lewis’

case in this Court, this Court affirmed Lewis’ convictions and sentences for two

counts of malice murder and other felonies, vacated a conviction and sentence

for possession of a firearm during the commission of a felony and remanded for

resentencing on that count, and remanded the case for a hearing on Lewis’

claims of ineffective assistance of first appellate counsel. Lewis v. State, 291

Ga. 273 (731 SE2d 51) (2012). The current appeal is from the trial court’s order

on remand which found no ineffective assistance of first appellate counsel. For
the reasons that follow, we affirm.

      As found by this Court in Lewis’ second appeal:

             Lewis stole a dark colored Jeep Cherokee in DeKalb County
      on October 5, 2001, confronting the vehicle's owner, Robert
      Chandler, with a chrome .357 revolver. On October 7, 2001, Lewis
      accosted Travis Reid and Xavier Dinkins while they were walking
      along a street. He pointed a .357 chrome revolver at the two men
      and told them to lie on the ground. Lewis searched them, and, when
      he discovered that neither man had any money, said that they had
      three seconds to run before he would shoot. Both men ran; Lewis
      began firing, and Dinkins was fatally struck. Lewis then ran toward
      the Jeep Cherokee he had stolen from Chandler. Later that day,
      police officers responded to a report of a shooting at an apartment
      complex. There they found Kejuan Webb, fatally shot. After the
      shooting, a witness saw a man carrying a .357 chrome revolver
      running to a Jeep Cherokee like that stolen from Chandler. A bullet
      recovered from this crime scene was later identified as having been
      fired from a chrome .357 caliber revolver taken from Lewis's home.
             On October 8, 2001, Lewis approached Antwon Cox and his
      younger brother, Herbert Cox, as they walked from Morris Brown
      College in Fulton County. Lewis produced a .357 caliber chrome
      revolver and told both brothers to lie on the ground. He searched the
      Cox brothers and found that Herbert had $30, but that Antwon had
      no money. Lewis told Antwon that he should thank Herbert for the
      fact that Herbert had some money, because Lewis had shot a person
      the day before because that victim did not have any money.
      Nonetheless, Lewis pointed the revolver at Antwon and pulled the
      trigger. However, the weapon did not fire, and Lewis fled.
             On October 9, 2001, Freddie Perdue had just left class at
      Morris Brown College and was standing outside a dormitory on a
      nearby college campus with Walter Williams and Shavez Givens.
      Lewis and another man, both carrying chrome revolvers,
      approached and told the men that they would rob them. The

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      assailants searched the victims' pockets; Perdue had only a cell
      phone, a business card holder, and a hair brush. Lewis told Perdue
      he would shoot him “anyway,” and as Perdue tried to run, Lewis
      shot him in the chest. Williams tried to flee, but was also shot by
      Lewis.
             On October 10, 2001, Shanta Roman and Jabouri Denson
      were walking along a street when Lewis and Michael Noble
      approached them. Both men brandished pistols. Denson and Roman
      ran until they came to a building and a fence; they threw money to
      the ground, the assailants picked up the money, and Lewis fired at
      the two victims, saying he did so in retaliation for them making him
      run after them. Noble was captured shortly thereafter by police
      officers.
             Police officers recovered Chandler's abandoned Jeep
      Cherokee; Lewis's fingerprints were found inside. Officers also
      executed a search warrant at Lewis's residence and recovered
      clothing consistent with victims' accounts of the perpetrator's
      clothing. Police also recovered two firearms: a .357 caliber chrome
      revolver and a .22 caliber chrome revolver. Ballistics tests revealed
      that the .357 revolver fired bullets that were recovered from the
      body of Dinkins, the scene of Webb's killing, and the scene of the
      attempted shooting of Denson and Roman.

Lewis, 291 Ga. at 273-274.

      Lewis contends that first appellate counsel was ineffective for failing to

present testimony at the motion for new trial hearing that would have shown that

Lewis’ trial counsel had been ineffective. Specifically, Lewis asserts

      that his first appellate counsel was ineffective in that, at the hearing on
      Lewis's motion for new trial, he failed to question Lewis regarding what
      the content of his testimony would have been had he chosen to testify at
      trial; first appellate counsel only asked Lewis about the decision to testify

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      and the manner in which that decision was made.

Lewis, 291 Ga. at 282 (7). It is Lewis’ position that the content of the testimony

that he would have given at trial would have exposed trial counsel’s

ineffectiveness for having failed to call him as a witness. We disagree.

      “[I]n order to prevail on his claim of ineffective assistance of first

appellate counsel, Lewis must show both that first appellate counsel's

performance was deficient, and that the deficient performance was prejudicial

to his defense. [Cit.]” Lewis, 291 Ga. at 281 (7). In this regard,

      [i]n evaluating appellate counsel's performance, “[t]he question is
      not whether [an appellate] attorney'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. [Cit.]” [Battles v. Chapman, 269 Ga. 702, 703 (1)
      (506 SE2d 838) (1998).] Accord Chatman v. Mancill, 280 Ga. 253,
      258 (2) (c) (626 SE2d 102) (2006). As to the prejudice prong, the
      [defendant] must demonstrate “a reasonable probability that, but for
      counsel's unprofessional errors, the result of the proceeding would
      have been different.” (Citations and punctuation omitted.) [Walker
      v. Hagins, 290 Ga. 512, 512-513 (722 SE2d 725) (2012).]

(Citation and punctuation omitted.) Seabolt v. Hall, 292 Ga. 311, 314 (737 SE2d

314) (2013).

      Here, the transcript of the remand hearing reveals that Lewis would have

testified that he was at home sick during the time of the crimes. Lewis also

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presented testimony from his grandmother, who allegedly would have given

testimony to show that Lewis did not own the gun used in the crimes and to

support Lewis’ claim that he was at home sick with the flu during the entire time

of the crime spree that formed the basis of the charges against him. However,

the transcript also reveals that Lewis and his grandmother never told first

appellate counsel about any defense theory involving Lewis’ alleged illness at

the time of the crimes. In fact, first appellate counsel testified that the first time

that he had heard anything about this alleged alibi defense was at the remand

hearing itself. In this connection, first appellate counsel cannot possibly have

performed deficiently by having failed to present testimony of which Lewis and

his grandmother had never made him aware. See, e.g., McIlwain v. State, 287

Ga. 115, 118 (5) ( 694 SE2d 657) (2010) (Attorney “could not be ineffective for

failing to . . . call a potential alibi witness of whom she was not informed.”).

      In any event, even if Lewis and his grandmother had informed first

appellate counsel of this testimony prior to the motion for new trial hearing,

Lewis’ claim of ineffective assistance of first appellate counsel would still fail,

as appellate counsel’s failure to present this testimony did not result in any

prejudice to Lewis. Specifically, the purported alibi defense would have done

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nothing to show that trial counsel’s initial representation of Lewis was somehow

ineffective, as the alibi defense fails to rebut the overwhelming evidence

connecting Lewis to the crime spree, including Lewis’ fingerprints being found

inside the stolen Jeep Cherokee involved in the initial murders, witnesses being

able to describe him as one of the perpetrators, and substantial evidence showing

that Lewis was the one using the .357 revolver to commit the crimes. It cannot

be said that the presentation of testimony regarding an alleged alibi defense

would have demonstrated that trial counsel’s defense strategy was deficient such

that the outcome of Lewis’ motion for new trial hearing would have been

different. Indeed, trial counsel’s defense strategy showing that Lewis

participated in some of the armed robberies (but not the murders) was

reasonable under the circumstances, which would necessarily defeat Lewis’

claim that his appellate counsel was ineffective for failing to adequately present

the issue of trial counsel’s ineffectiveness. See Barker v. Barrow, 290 Ga. 711

(2) (723 SE2d 905) (2012).

      Judgment affirmed. All the Justices concur.




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                        Decided February 24, 2014.

     Murder, etc. Fulton Superior Court. Before Judge Dempsey.

     Charles H. Frier, for appellant.

     Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Sr.,

Paige Reese Whitaker, Christopher M. Quinn, Assistant District Attorneys,

Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy

Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jason C.

Fisher, Meghan H. Hill, Assistant Attorneys General, for appellee.




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