In the Supreme Court of Georgia



                                               Decided: June 6, 2016


                          S16A0103. DAVIS v. THE STATE.


       NAHMIAS, Justice.

       Appellant Sean Ohifemi Davis challenges his convictions for felony

murder and first-degree child cruelty in connection with the death of his

girlfriend’s 13-month-old daughter, Nila Faye Flagler. As explained below, we

reject Appellant’s contention that his trial counsel provided ineffective

assistance, and we affirm his conviction and sentence for felony murder.

However, the trial court should have merged the child cruelty count into the

felony murder conviction for sentencing purposes, so we vacate Appellant’s

conviction and sentence for child cruelty.1

       1
           The victim died on April 29, 2009. On September 3, 2009, a Toombs County grand jury
indicted Appellant for malice murder, felony murder based on first degree child cruelty, and first
degree child cruelty. At a trial from June 10 to 13, 2013, the jury acquitted Appellant of malice
murder but found him guilty of the other two charges. The trial court sentenced him to serve life in
prison for felony murder and a concurrent term of 20 years for child cruelty; as explained in Division
1 (b) below, the latter sentence was improper. On June 21, 2013, Appellant filed a motion for new
trial, which he amended with new counsel on July 15, 2013. The trial court held an evidentiary
hearing on October 23, 2014, and entered an order denying the motion on June 19, 2015. Appellant
filed a timely notice of appeal, and the case was docketed in this Court for the January 2016 term and
submitted for decision on the briefs.
      1.    (a)   Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. On April 27, 2009, Appellant came to

Morrisha McLain’s apartment in Vidalia, Georgia around 9:30 p.m. Appellant

and McLain had been dating for a month or so, and he often cared for her

children – Nila and her three-year-old brother Amari – while McLain worked

the night shift at a nearby convenience store. Around 11:40 p.m., McLain left

for work, and Appellant stayed with the children; Nila appeared healthy when

McLain left. At about 7:40 a.m. the next morning, Appellant called McLain and

told her that Nila was barely breathing and looked like she was having a seizure.

McLain left work, calling 911 as she rushed home. When she arrived, she found

Nila lying propped up on pillows on her bed; she was not breathing, and McLain

started CPR. Moments later, an ambulance arrived, and Nila was taken to a

nearby hospital, but she remained unconscious and required assistance to

breathe. The child was flown to a hospital in Savannah, where she died the

following day.

      The medical examiner who performed Nila’s autopsy testified at trial that

the child had 26 external injuries on her head and face, including hair loss,

abrasions, bruises, and healing lesions; several other external bruises and

                                       2
abrasions on her back and legs; and several internal injuries, including a skull

fracture, subgaleal and subdural hemorrhages, brain swelling, and ruptured

blood vessels. The injuries to Nila’s skull and brain caused her death.

      Three of the doctors who treated Nila in Savannah testified that the

injuries that led to her death resulted from a recent impact or back-and-forth

movement and not from earlier accidental falls as Appellant’s counsel suggested

on cross-examination. Dr. John Devaro, a pediatric ophthalmologist, testified

that Nila had hemorrhaging in her eyes and detached retinas from a large

acceleration-deceleration injury, which indicated a direct hit from something or

back-and-forth movement of the head that did not result from a fall off furniture.

Dr. Deborah Conway, the director of pediatric imaging, testified that Nila’s

injuries resulted from a combination of blunt force to the head and shaking and

not from falling off furniture, that Nila and her brother could not have caused

her injuries, and that her injuries had occurred within a day of her arrival at the

hospital. Dr. Donna Evans, a pediatrician and medical director of the hospital’s

child protection team, testified that Nila’s injuries resulted from acceleration-

deceleration impact trauma and could not have resulted from an accidental fall

off furniture, and that Nila’s symptoms would have been immediately apparent

                                        3
to her caretaker.

      Appellant testified that he did not strike, shake, or otherwise hurt Nila,

claiming not to know how she was injured. Defense counsel elicited testimony

from Appellant and McLain that a few days before Nila stopped breathing, she

fell off her bed and got wedged between the bed and the wall with her head

resting on the floor; she was in that position long enough to cause a clump of her

hair to fall out when Appellant found her. On another occasion, Appellant and

McLain were lying in bed together when Nila started to climb onto the bed but

fell off, striking her head on the floor, although she got up laughing. Appellant

also presented expert testimony from a pediatric forensic pathologist, Dr. Janice

Ophoven, who asserted that prior accidental falls could have resulted in Nila’s

injuries and death. In rebuttal, the State called forensic pathologist Dr. Jamie

Downs, who testified that Nila’s injuries occurred less than a day before her

death based upon their severity and lack of healing and could not have resulted

from an earlier fall.

            (b)     Appellant does not dispute the legal sufficiency of the

evidence supporting his convictions. Nevertheless, in accordance with this

Court’s practice in murder cases, we have reviewed the record and conclude

                                        4
that, when viewed in the light most favorable to the verdicts, the evidence

presented at trial and summarized above was sufficient to authorize a rational

jury to find Appellant guilty beyond a reasonable doubt of felony murder and

first-degree child cruelty. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt

2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d

223) (2009) (“‘It was for the jury to determine the credibility of the witnesses

and to resolve any conflicts or inconsistencies in the evidence.’” (citation

omitted)). The trial court therefore properly entered a conviction and imposed

a sentence on the felony murder charge. The court erred, however, in entering

a judgment of conviction on the child cruelty count, because that charge was the

predicate for Appellant’s felony murder conviction. See Nazario v. State, 293

Ga. 480, 486 (746 SE2d 109) (2013); Higuera-Hernandez v. State, 289 Ga. 553,

554 (714 SE2d 236) (2011). Accordingly, we vacate Appellant’s conviction and

sentence for child cruelty.

      2.    Appellant contends that he received ineffective assistance of trial

counsel in three respects. To establish that his trial counsel was constitutionally

ineffective, Appellant must prove both deficient performance by counsel and

resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt

                                        5
2052, 80 LE2d 674) (1984). To show that his lawyer’s performance was

deficient, Appellant must demonstrate that the lawyer performed his duties in

an objectively unreasonable way, considering all the circumstances and in the

light of prevailing professional norms. See id. at 687-690. This is no easy

showing, as the law recognizes a “strong presumption” that counsel performed

reasonably, and Appellant bears the burden of overcoming this presumption. Id.

at 689. To carry this burden, he must show that no reasonable lawyer would

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

not. See Humphrey v. Nance, 293 Ga. 189, 192 (744 SE2d 706) (2013). In

particular, “decisions 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.” Reed v. State, 294 Ga.

877, 882 (757 SE2d 84) (2014).

      Even when a defendant has proved that his counsel’s performance was

deficient in this constitutional sense, he also must prove prejudice by showing

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

of the proceeding would have been different.” Strickland, 466 U.S. at 694. “It

is not enough to show that the errors had some conceivable effect on the

                                        6
outcome of the proceeding.” Harrington v. Richter, 562 U.S. 86, 104 (131 SCt

770, 178 LE2d 624) (2011) (citation and punctuation omitted).            Rather,

Appellant must demonstrate a “reasonable probability” of a different result,

which, the United States Supreme Court has explained, is “a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694.

       The reviewing court need not “address both components of the inquiry if

the defendant makes an insufficient showing on one.” Id. at 697. In all, the

burden of proving a denial of effective assistance of counsel is a heavy one, see

Wells v. State, 295 Ga. 161, 164 (758 SE2d 598) (2014), and Appellant has

failed to carry that burden.

            (a)    Appellant first claims that his trial counsel was deficient in

failing to properly invoke the so-called “rule of sequestration” in regard to

Appellant’s expert witness, Dr. Janice Ophoven, and the State’s rebuttal expert,

Dr. Jamie Downs.

                   (1)   Due to a busy practice and poor health, Dr. Ophoven

was unable to travel from her home in Canada to give live testimony at

Appellant’s trial. By agreement of the parties, her testimony was video recorded

                                        7
on the first day of trial after the jury had been excused for the day; the recording

was then played for the jury on the third day of trial. Dr. Ophoven testified that

accidental falls between two and four feet could result in fatal injuries to a child

that might not become apparent until days later, asserting that the scientific

literature supported her position. She also testified that there is no scientific

basis for the theory that the combination of retinal hemorrhaging, subdural

hematoma, and brain damage necessarily shows that the child was violently

shaken.

      At some point before Dr. Ophoven’s testimony was played for the jury,

the prosecution gave a copy of the recording to Dr. Downs, who testified in

rebuttal right after the jury watched Dr. Ophoven’s testimony. The rule of

sequestration had not been invoked by either party or by the court up to that

point in the trial, although with the exception of Dr. Downs, the parties had

honored the rule. After Dr. Downs was qualified as an expert, but before he

offered his opinions, Appellant’s counsel objected that the rule had been

violated. The resulting sidebar discussion was not transcribed, but the trial court

overruled the objection. Dr. Downs then offered his opinion about the cause of

Nila’s death, which was based on his review of the victim’s medical and autopsy

                                         8
records and other information he had been provided about the case, and

identified where he disagreed with specific portions of Dr. Ophoven’s analysis

and conclusions.

       After the jury was excused for the day, Appellant’s counsel renewed the

sequestration objection, but the court again overruled it, finding that Dr.

Ophoven had not produced an expert report, so the only way for Dr. Downs to

rebut her testimony was for him “to either know what the witness said in the

courtroom or have someone summarize it for him so that he would know what

her findings and conclusions were.”2 The court also found that Appellant was

not at any disadvantage and asserted that trial courts have broad discretion in

allowing witnesses to testify in rebuttal even when the rule of sequestration had

been invoked and enforced.




       2
          In her trial testimony, Dr. Ophoven said that she does not prepare a report unless one is
formally requested, but it is her policy in every case where a report is not prepared to make herself
available to opposing counsel to discuss her findings and conclusions before trial; she denied the
prosecutor’s suggestion that the State had tried unsuccessfully to make contact directly with her
before Appellant’s trial. At the motion for new trial hearing, one of the prosecutors testified that not
only did Dr. Ophoven fail to provide an expert report, but the State had repeatedly attempted to make
contact with her prior to trial but was rebuffed each time. Dr. Ophoven did not testify at the motion
for new trial hearing. See generally OCGA § 17-16-4 (b) (2) (requiring the defendant to disclose to
the prosecution before trial certain expert reports).

                                                   9
                       (2)     Appellant’s trial took place in June 2013, more than five

months after Georgia’s new Evidence Code took effect. In our new evidence

scheme, the rule relating to sequestration (“exclusion”) of witnesses is found in

OCGA § 24-6-615, which says:

       Except as otherwise provided in Code Section 24-6-616, at the
       request of a party the court shall order witnesses excluded so that
       each witness cannot hear the testimony of other witnesses, and it
       may make the order on its own motion. This Code section shall not
       authorize exclusion of:
       (1) A party who is a natural person;
       (2) An officer or employee of a party which is not a natural
             person designated as its representative by its attorney; or
       (3) A person whose presence is shown by a party to be essential
             to the presentation of the party’s cause.3

The text of § 24-6-615 differs significantly from the text of the sequestration

provision of the old Evidence Code,4 and instead tracks in pertinent part the

language of Federal Rule of Evidence 615 as that rule read in 2011. As we have


       3
          OGGA § 24-6-616 says, “Subject to the provisions of Code Section 17-17-9 [elaborating
on a crime victim’s right to be present during court proceedings], the victim of a criminal offense
shall be entitled to be present in any court exercising jurisdiction over such offense.”
       4
           Former OCGA § 24-9-61 said:

       Except as otherwise provided in [former] Code Section 24-9-61.1 [relating to crime
       victims], in all cases either party shall have the right to have the witnesses of the
       other party examined out of the hearing of each other. The court shall take proper
       care to effect this object as far as practicable and convenient, but no mere irregularity
       shall exclude a witness.

                                                 10
explained before, to the extent that the new Georgia evidence rules deviate from

the old Evidence Code and borrow from the text of the federal evidence rules in

this way, we look for guidance to the decisions of the federal appellate courts,

particularly the United States Supreme Court and the Eleventh Circuit,

interpreting the federal rules in question.                  See Olds v. State, Case No.

S15G1610, slip op. at 7 (decided May 23, 2016). See also Parker v. State, 296

Ga. 586, 592 (769 SE2d 329) (2015).5

           Eleventh Circuit precedent explains that “[t]he purpose of the

sequestration rule is to prevent the shaping of testimony by one witness to match

that of another, and to discourage fabrication and collusion.” Miller v.

Universal City Studios, Inc., 650 F2d 1365, 1373 (5th Cir. July 23, 1981).6 See

also Fed. R. Evid. 615 advisory committee notes on 1972 proposed rules (“The

efficacy of excluding or sequestering witnesses has long been recognized as a



       5
          As we noted in Parker, the general restyling of the Federal Rules of Evidence that took
effect in December 2011, after our new Evidence Code was signed into law in May 2011, was
intended to be stylistic only and not to change the result of any ruling on the admissibility of
evidence. See 296 Ga. at 592 n.10. Accord Fed. R. Evid. 615 advisory committee notes on 2011
amendments.
       6
          The Eleventh Circuit has adopted as binding precedent all decisions of its predecessor Fifth
Circuit issued prior to October 1, 1981. See Bonner v. City of Pritchard, 661 F2d 1206, 1207 (11th
Cir. 1981) (en banc).

                                                 11
means of discouraging and exposing fabrication, inaccuracy, and collusion.”).

The reasons for sequestration apply not only to a witness who is present in court

to hear the testimony of other witnesses, but also – as essentially occurred here

– to a witness’s being given a transcript of another witness’s trial testimony to

review. See Miller, 650 F2d at 1373.

      But there are exceptions to the sequestration rule. As relevant here, both

OCGA § 24-6-615 (3) and Federal Rule of Evidence 615 (c) preclude trial

courts from excluding a witness whose presence a party shows is “essential” to

presenting that party’s case. The trial court has broad discretion in deciding

whether a witness comes within this exception. See Opus 3 Ltd. v. Heritage

Park, Inc., 91 F3d 625, 629 (4th Cir. 1996). See also United States v. Ratfield,

342 Fed. Appx. 510, 512 (11th Cir. 2009); United States v. Jackson, 60 F3d 128,

134-135 (2d Cir. 1995).

      The federal circuits agree that expert witnesses are not automatically

excepted from sequestration as “essential”; that determination remains in the

trial court’s discretion. See, e.g., Miller, 650 F2d at 1373-1374; Opus 3, 91 F3d

at 629. But the drafters of the federal rule recognized that the “essential”

witness category would include “an expert needed to advise counsel in the

                                       12
management of the litigation.” Fed. R. Evid. 615 advisory committee notes on

1972 proposed rules.7 In addition, federal courts have explained that the

concerns underlying sequestration are generally overcome where an expert

witness will give only or primarily opinion rather than factual testimony and

may appropriately base that opinion on the testimony of other witnesses. See,

e.g., Morvant v. Construction Aggregates Corp., 570 F2d 626, 629 (6th Cir.

1978) (“We perceive little, if any, reason for sequestering a witness who is to

testify in an expert capacity only and not to the facts of the case.”); United States

v. Forehand, 943 FSupp.2d 1329, 1331-1332 (M.D. Ala. 2013) (ruling that the

government’s securities law expert could remain in the courtroom to base his

opinions on the testimony of the 60 alleged victim investors); Skidmore v.

Northwest Engineering Co., 90 FRD 75, 76 (S.D. Fla. 1981) (rejecting the

exclusion of an expert witness from a deposition where the “expert testifies to

his opinion, not to contested facts”). Compare Opus 3, 91 F3d at 629 (affirming

a ruling that a witness was not exempt under Rule 615 where he was not just an

expert but also a critical fact witness); Miller, 650 F2d at 1374 (indicating that

       7
        We note that Dr. Downs does not seem to be in this category, as there is no indication that
he was used by the prosecutors to advise them, for example, on how to question witnesses about
medical matters.

                                               13
an exemption would be “questionable” where a literary expert was to testify

only about the two literary works at issue).

      This view rests in part on the recognition that OCGA § 24-7-703, like

Federal Rule of Evidence 703, allows expert witnesses to base their opinions on

facts or data “perceived by . . . the expert at . . . the hearing.”8 See also Fed. R.

Evid. 703 advisory committee notes on 1972 proposed rules (explaining that

instead of responding to a hypothetical question, “the expert [may] attend the

trial and hear the testimony establishing the facts”). Indeed, having the expert

attend the relevant parts of the trial may render unnecessary the lengthy,

convoluted, and typically argumentative hypothetical questions that lawyers

would otherwise utilize. See Blake v. Kemp, 758 F2d 523, 550 n.27 (11th Cir.

1985) (Tjoflat, J., dissenting). See also Forehand, 943 FSupp.2d at 1332 (noting



      8
          OCGA § 24-7-703 says:

      The facts or data in the particular proceeding upon which an expert bases an opinion
      or inference may be those perceived by or made known to the expert at or before the
      hearing. If of a type reasonably relied upon by experts in the particular field in
      forming opinions or inferences upon the subject, such facts or data need not be
      admissible in evidence in order for the opinion or inference to be admitted. Such
      facts or data that are otherwise inadmissible shall not be disclosed to the jury by the
      proponent of the opinion or inference unless the court determines that their probative
      value in assisting the jury to evaluate the expert’s opinion substantially outweighs
      their prejudicial effect.

                                               14
that, “to the extent the purpose behind Rule 615 (a witness knowing what

another witness has said) is at issue in this case, there is not much difference

between allowing [the expert] to remain in the courtroom and presenting

hypothetical questions to him: in both scenarios [he] would learn the testimony

of another witness”).

      The reasons for sequestration may be even less applicable to rebuttal

testimony by experts. While not excepted per se from sequestration,

      the very function of a rebuttal witness is directed toward
      challenging the prior testimony of opposing witnesses, thereby
      enhancing the fact finder’s ultimate determination of an objective
      “truth.” While not all rebuttal witnesses need be apprised of prior
      testimony – impeachment witnesses called to demonstrate bias, for
      example, – a rebuttal witness presented to refute the medical
      findings of an opposing expert can contribute most completely to a
      jury’s truth finding capacity only by fully understanding and
      addressing all of the relevant prior evidence. Cf. United States v.
      Burgess, 691 F.2d 1146, 1157 (4th Cir. 1982) (holding that
      government psychiatrists should be allowed to hear testimony of
      opposing expert witnesses in order to completely familiarize
      themselves with each other’s findings). Whether such evidence is
      summarized in the form of a hypothetical question or exposed by
      prior review, rebuttal examination cannot be properly conducted
      without revealing, in some measure, the testimony which is subject
      to refutation. Moreover, trial by ambush and confoundment of
      rebuttal witnesses hardly advances the purported goals of reliability
      and trustworthiness. Id. (it is unreasonable to place experts under
      short time constraints for familiarizing themselves with each other’s
      findings and therefore, reasonable to permit all of them to appear in

                                       15
      court).

United States v. Bramlet, 820 F2d 851, 855 (7th Cir. 1987). See also United

States v. Shurn, 849 F2d 1090, 1094 (8th Cir. 1988) (noting that “the purpose

of a sequestration order is not applicable” to rebuttal testimony that is “not

cumulative, but simply impeaching”).

      Finally, even when the rule of sequestration has been invoked and a

witness violates it, the trial court may respond in at least three ways:

      (1) it may cite the guilty party for contempt; (2) it may allow
      opposing counsel to cross-examine the witnesses as to the nature of
      the violation; or (3) where counsel or the witness violate[s] the rule
      intentionally, the court may strike testimony already given or
      disallow further testimony. “The district court’s denial of a mistrial
      for violation of the sequestration rule is . . . a matter of discretion
      and reversible only on a showing of prejudice.”

United States v. Diaz, 248 F3d 1065, 1104 (11th Cir. 2001) (citations omitted).

See also United States v. Ortega-Chavez, 682 F2d 1086, 1089-1090 (5th Cir.

1982) (finding no abuse of discretion or prejudice in allowing testimony of

rebuttal fact witnesses who had violated a sequestration order).

                  (3)    Viewed against this legal backdrop, under the

circumstances of this case the trial court did not abuse its broad discretion in

allowing Dr. Downs to testify in rebuttal of Dr. Ophoven based in part on his

                                        16
review of her recorded testimony. Dr. Downs was entitled to know of her

opinions and the bases for them, and where the defense had not provided an

expert report and the court could find that the defense had rebuffed the State’s

efforts to contact her before trial, that information was reasonably conveyed to

Dr. Downs by means of the recording rather than through a summary by

someone who had viewed the recording or through hypothetical questions.

Accordingly, even if Appellant’s counsel had invoked the rule of sequestration

earlier in the trial, the court would not have abused its discretion in excepting

Dr. Downs from the rule to the limited extent that he was excepted. Appellant

therefore has not shown that his trial counsel acted deficiently in this respect,

nor has he shown that, but for counsel’s actions, the outcome of the trial would

have been different. See Hampton v. State, 282 Ga. 490, 492 (651 SE2d 698)

(2007) (holding that trial counsel’s failure to raise a meritless objection does not

constitute deficient performance and causes no prejudice). As to prejudice, we

also note that Appellant has failed to establish how Dr. Downs’s testimony

would have been different, and more favorable to him, if Dr. Downs had not

seen Dr. Ophoven’s testimony directly but rather had been asked hypothetical

questions based upon the content of that testimony.

                                        17
            (b)   Appellant next argues that his trial counsel was professionally

deficient in failing to object to the admission of two sets of photographs on the

ground that they were duplicative and more prejudicial than probative. This

argument implicates another provision of the new Evidence Code, OCGA § 24-

4-403, which says:

      Relevant evidence may be excluded if its probative value is
      substantially outweighed by the danger of unfair prejudice,
      confusion of the issues, or misleading the jury or by considerations
      of undue delay, waste of time, or needless presentation of
      cumulative evidence.

OCGA § 24-4-403 mirrors Federal Rule of Evidence 403 and is interpreted

accordingly. See Hood v. State, Case No. S16A0064, slip op. at 15 (decided

May 23, 2016). The trial court’s discretion under § 24-4-403 must be exercised

with the understanding that exclusion of evidence under this rule “is an

extraordinary remedy which should be used only sparingly.” State v. Jones, 297

Ga. 156, 164 (773 SE2d 170) (2015) (citing United States v. Merrill, 513 F3d

1293, 1301 (11th Cir. 2008)) (quotation marks omitted).

      Appellant first contends that his trial counsel should have objected to a

series of 11 post-incision autopsy photos of the victim that the medical examiner

and other State’s experts used in explaining their opinions about the victim’s

                                       18
injuries and the cause of her death. Appellant argues that these photos were not

material to any issue in the case, because the cause of death was not in dispute

and was established by other evidence. In fact, the cause of the victim’s death

and the circumstances surrounding her injuries were the principal dispute at

trial. The State presented evidence that Appellant caused the victim’s fatal

injuries after the child’s mother left for work, while Appellant presented his own

testimony that he did not strike, shake, or otherwise harm the victim along with

expert testimony that the child’s death could have resulted from earlier falls.

Thus, the premise of Appellant’s claim is faulty.

      Moreover, a lawyer is not required to make an objection that he

reasonably believes will fail. See Premo v. Moore, 562 U.S. 115, 124 (131 SCt

733, 178 LEd2d 649) (2011). And if Appellant’s counsel had objected to the

admission of these photos, the trial court would have been well within its

discretion under OCGA § 24-4-403 in overruling the objection and admitting

the photos. See, e.g., Dailey v. State, 297 Ga. 442, 444 (774 SE2d 672) (2015)

(affirming the admission of autopsy photos over a § 24-4-403 objection,

explaining that such photos are relevant when used by the medical examiner to

show internal injuries that caused the victim’s death, even if the defendant did

                                       19
not dispute the cause of death); United States v. Greatwalker, 356 F3d 908, 912-

913 (8th Cir. 2004) (explaining that a trial court may admit autopsy photos to

be “used as aids in a medical examiner’s testimony to explain the nature and

extent of [the victim’s] injuries and the cause of [his] death”). Thus, Appellant

has not shown that his trial counsel was deficient in not objecting to these

photos based on § 24-4-403, and he has not shown that there is a reasonable

probability that such an objection would have changed the outcome of his trial.

See Hampton, 282 Ga. at 492.

      Appellant also contends that his trial counsel should have objected to a

series of 12 photos from the hospital in Savannah where the victim died. Eight

of these photos depict portions of the victim’s body as she lay in a crib attached

to various monitors and life support machines, and one photo appears to be of

an MRI scan of the victim’s head. These photos were relevant to show the

nature and extent of the victim’s injuries, and they are not especially gory or

gruesome. See Moss v. State, 298 Ga. 613, 617-618 (783 SE2d 652) (2016)

(discussing the admissibility under OCGA § 24-4-403 of pre-incision autopsy

photos of a murder victim, based on Eleventh Circuit case law). Thus, it was not

unreasonable for Appellant’s counsel to think that these photos would have been

                                       20
admitted even over an objection based on § 24-4-403, and counsel was not

deficient in failing to make such an objection. See id.

      Three photos from the hospital series are different. They do not depict the

victim at all; two simply show medical equipment, and one is of a doll lying in

the victim’s crib. Unlike the other photos in dispute, we do not see – and the

State has not offered an explanation for – how these three photos were relevant

to any issue of consequence in this case. See OCGA § 24-4-401 (defining

“relevant evidence” to mean “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence”). Thus,

an objection to these photos based on OCGA § 24-4-403 might well have been

sustained. See Hood, slip op. at 20-21. See also Old Chief v. United States, 519

U.S. 172, 178-185 (117 SCt 644, 136 LE2d 574) (1997) (discussing the

interaction of Federal Rules of Evidence 401 and 403).

      Nevertheless, we are confident that no Strickland prejudice resulted from

the admission of these three photos. Cf. Hood, slip op. at 21-22 (concluding that

the admission of other acts evidence in violation of OCGA § 24-4-403 was

harmless error). The record indicates that these three photos were only

                                       21
momentarily published to the jury along with more than six dozen other photos

from the crime scene and hospital that were admitted during the testimony of the

investigating officer; the State’s other witnesses, including its experts, never

mentioned these three photos; and the State did not refer to them in closing

argument. Moreover, the other evidence against Appellant was strong, and from

the evidence of the crime scene and the treating doctors, it was no secret to the

jury that the victim was a very young child who suffered grievous injuries and

then was subjected to life-saving measures at the Savannah hospital.

Accordingly, Appellant has failed to show a reasonable probability that the

result of the trial would have been different even if his counsel had objected to

these three photos and the trial court had excluded them from evidence under

OCGA § 24-4-403.

            (c)   Finally, Appellant asserts that his trial counsel was ineffective

in failing to more thoroughly research the State’s medical experts. Appellant

has not identified any specific shortcomings, however, and the record shows that

counsel extensively cross-examined the State’s experts and also found an expert

who testified in Appellant’s favor. Moreover, at the motion for new trial

hearing, Appellant failed to present any evidence as to what further research

                                       22
would have revealed or how any additional information would have improved

his position. See Domingues v. State, 277 Ga. 373, 374 (589 SE2d 102) (2003)

(holding that a defendant cannot show prejudice based on his trial counsel’s

alleged failure to thoroughly investigate the case without offering at least a

proffer as to what additional investigation would have uncovered). It is not

enough to speculate that such information exists and would have made a

difference. See Ballard v. State, 297 Ga. 248, 254 (773 SE2d 254) (2015).

Indeed, Appellant did not even ask his trial counsel about this issue at the

motion for new trial hearing. Thus, Appellant has not shown that he received

ineffective assistance of counsel in this respect either.

      3.    A final important note. As discussed previously, this case was tried

under our State’s new Evidence Code, and the key evidence rules we must apply

– OCGA §§ 24-6-615 and 24-4-403 – differ from the pertinent provisions of the

old Evidence Code and instead track the analogous federal evidence rules,

meaning that we will look to those federal rules and the federal case law

interpreting them for guidance. Nevertheless, in their briefs to this Court,

Appellant cited § 24-6-615 only in passing and failed to cite § 24-4-403; the

State cited neither new rule; and neither party cited any case law interpreting

                                        23
these provisions of the new Evidence Code or the parallel provisions of the

Federal Rules of Evidence.

       It may be that the result of this case would be the same if we applied the

old Evidence Code and our decisions interpreting it, but if so, that is

happenstance, at least without careful comparison of the old and new law.9

Georgia lawyers do this Court no favors – and risk obtaining reversible evidence

rulings from trial courts – when they fail to recognize that we are all living in a

new evidence world and are required to analyze and apply the new law. It may

be hard to comprehend that, when it comes to trials and hearings held after

January 1, 2013, the most pertinent precedent to cite on an evidentiary issue may

be a decades-old decision of the Eleventh Circuit (or even the old Fifth Circuit),

instead of a week-old unanimous decision of this Court (if we were deciding the

appeal of a case tried before 2013 and governed by the old rules, as still




       9
         Compare, e.g., Rivers v. State, 296 Ga. 396, 403 (768 SE2d 486) (2015) (noting that a prior
inconsistent statement of a witness who testifies and is subject to cross-examination is admissible
both to impeach the witness and as substantive evidence under both the new and old Evidence
Codes), with, e.g., Brooks v. State, ___ Ga. ___, ___ (783 SE2d 895, 900) (2016) (reversing a
murder conviction due to the trial court’s improper admission of other act evidence under OCGA
§ 24-4-404 (b), in part because “‘course of conduct,’ . . . formerly an integral part of our law of
evidence, [has] been eliminated from the new Evidence Code” (citation omitted)).

                                                24
frequently occurs).10 We trust that this shortcoming will not be repeated in

future cases coming to this Court.

       Judgment affirmed in part and vacated in part. All the Justices concur.




       10
          To help avoid such misunderstandings, we often note the date of the trial in footnote 1 of
our opinions and try also to note when we are applying a no-longer-existing evidence rule.

                                                25
