HINES, Justice.
A jury convicted Winston Clay Barrett of malice murder and related crimes and recommended a death sentence for the murder after finding beyond a reasonable doubt the following statutory aggravating circumstances: the murder was committed while Barrett was engaged in the commission of an aggravated battery, and the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and an aggravated battery to the victim before his death and manifested the defendant's depravity of mind.
1. The evidence showed the following. At approximately 5:30 a.m. on August 4, 2002, two Towns County deputy sheriffs drove through Clay Barrett's neighborhood in Hiawassee after receiving a 911 call reporting that gunshots had been fired in the vicinity. When one of the deputies saw a light at Barrett's residence, they stopped to investigate and discovered the body of Danny "Stumpy" Youngblood outside the home lying face-up in a pool of blood with "obvious brain matter" lying beside him. Youngblood, who was 5' 7" tall and weighed 204 pounds, had been pistol-whipped and badly beaten, had a large gunshot wound to the back of his head, and had a severe wound to his right eye. Barrett, who is 6' 7" tall and weighed 250 pounds at the time of the crimes, was inside the home sitting in a reclining chair watching television. When one of the deputies came to the doorway, Barrett told him, "I just shot a man. I just shot Stumpy." The deputy inquired about a weapon, and Barrett told him that it was outside. When the deputy asked Barrett exactly where outside the weapon was located, Barrett lifted his left leg, displayed a nine-millimeter pistol, and tossed it onto the chair beside him. When additional law enforcement personnel arrived, Barrett refused their request that he move outside in order for them to conduct their investigation. As the officers assisted him out of his chair, they discovered that Barrett had a holster attached to his right side that contained a loaded .357 revolver, which was later determined to be the weapon that killed Youngblood.
Jeanine Barrett testified that on August 4, 2002, she and Barrett had been married for approximately one year and that she had met Youngblood only one time prior to the weekend that the shooting occurred. According to her testimony, the following events preceded Youngblood's death. The previous day, she placed Barrett's .357 revolver in a pocket of his reclining chair after finding it lying on a bed in their home. At approximately 9:00 p.m., she and her 13-year-old son were driving home when they saw Barrett and Youngblood together in Youngblood's truck headed away from the Barretts' residence. She stopped and briefly spoke to them. Youngblood was driving, and both he and Barrett appeared to be intoxicated. At approximately midnight, Ms. Barrett returned her son to his grandmother's home in Gwinnett County where he lived, and when she returned home approximately four hours later, she found Barrett and Youngblood asleep in reclining chairs. She lay down on a bed in the same room, as the home consisted of only one large room and a bathroom.
At approximately 5:00 a.m., Ms. Barrett heard Barrett get up and stagger around the room until he found the bathroom, went in, and closed the door. Almost immediately, Youngblood awoke. Moaning and groaning, he stumbled around the room and then urinated on the television and floor. Ms. Barrett yelled at him that he was not in the bathroom. Youngblood staggered toward the bathroom but stopped at the door and started to lower his pants. Thinking that he was about to defecate on the bed, Ms. Barrett yelled again and pushed Youngblood, who then tried to lie down beside her. Ms. Barrett told him that her husband had put a mattress on the floor for him to lie down on, and then she got up from the bed and started yelling at him to leave. She opened the home's only exterior door and pushed Youngblood toward it, but when she got him to the door, he stopped and said, "No, no, I'm here with Clay. I don't have to."
Then Youngblood sat down on the corner of the bed, lowered his head, and shook it, saying, "Oh, Clay, I didn't know." Barrett pulled him off the bed and started hitting him. Youngblood did not resist or fight back, and Barrett "just started throwing him around like a rag doll." Barrett threw Youngblood out the door, and Ms. Barrett heard a lot of "oh's" and "banging around" in the gravel drive outside. Barrett threw Youngblood back inside the residence and onto the floor, hitting him repeatedly with his fists and his nine-millimeter pistol. Both Youngblood and Ms. Barrett begged Barrett to stop, but Barrett pulled Youngblood up and threw him out the door and then back into the residence again, still beating him and slamming his head on the floor, on the table, and under the television. Then Barrett jumped on top of Youngblood and sat on his stomach, straddling him. When Ms. Barrett saw that Youngblood's head looked like it was "split from one side to the other in a couple of places" and that he was bleeding from his head, his mouth, and his nose, she begged Barrett to "stop it" and to "let him go" before he killed Youngblood, whom she described as helpless and "out of it." Instead, Barrett remained on top of Youngblood, looked at his wife, and then "reared back with his hand way up," "jabbed it down in [Youngblood's] eye," and "ramm[ed] his finger like he was trying to ram his hand through [Youngblood's] eye socket." When she saw "blood squirt[] up yea high," Ms. Barrett went to get help, as the Barretts had no telephone. As she was driving her car out of the drive, she saw Youngblood stagger to the door and then saw Barrett grab him at both shoulders and yank him back inside. When Ms. Barrett returned with Davis Sutton, Barrett's long-time friend, Youngblood was lying dead between his truck and the residence.
Barrett, who also testified at trial, described the events preceding Youngblood's death as follows. Youngblood came to his home in the late afternoon of August 3, 2002, "agitated" and "angry" as the result of a recent altercation involving his girlfriend and his cousin. Barrett refused Youngblood's request to borrow a gun in order "to go shoot these people." The two men went target shooting with Barrett's nine-millimeter pistol instead. Later, they met Ms. Barrett on the road as she was coming home and they were leaving to buy some beer at a convenience store, which they consumed en route to a bar in Helen, where they each consumed more alcohol. They returned to the Barretts' home at approximately midnight and fell asleep in reclining chairs. Sometime later, Barrett woke up when he thought he heard a gunshot. Youngblood was in the middle of the room with Barrett's nine-millimeter pistol in his hand, and the door to the home was open. Barrett told Youngblood to give him the gun and to go back to sleep.
Barrett awoke and went to the bathroom at approximately 5:00 a.m. When he heard Youngblood and his wife arguing, he came out of the bathroom and tried to calm down an "agitated" Youngblood by telling him: "It's okay. Don't worry about it. Just go on home." When Youngblood would not leave, Barrett asked Ms. Barrett to "go call the police," but Youngblood blocked the doorway and refused to let Ms. Barrett out. Barrett and Youngblood began shoving each other, the shoves turned into blows, and a fistfight erupted. Barrett claimed that Youngblood was attempting to strike him with a ceramic wind chime when he kicked it out of Youngblood's hand, retrieved it, and hit Youngblood over the head with it. He also claimed that Youngblood threatened to kill him and was attempting to pick up Barrett's loaded .357
Once Barrett "finally got [Youngblood] out of the house to stay," he went inside and sat in his chair, where he watched Youngblood through the open doorway as he sat on the porch facing Barrett. After "a little lull," Barrett said, "Stumpy, go get in your truck and leave, ... or I'll have to shoot you." It appeared to Barrett that Youngblood was dragging a rock with his left foot, and Barrett unholstered the .357 revolver and came "pretty fast" at Youngblood, kicking him in the stomach with enough force to move him from one side of the porch to the other. Youngblood landed on his back on the ground between his truck and the residence. Barrett approached him, and, while standing 12 to 18 inches from his feet, held the gun with both hands at belt level with his finger on the trigger and told Youngblood to "just stay there" until the police arrived. Youngblood lunged toward Barrett, and Barrett jerked back and fired the gun "without thinking." Barrett admitted that Youngblood never got to his feet and that he knew that Youngblood did not have a firearm. After the shooting, Barrett opened the door to Youngblood's truck to go for help. When he did not see the key inside, he went back into his home, showered, and waited for the police.
Although Barrett testified that he fired only one shot, two neighbors testified to being awakened by one gunshot, followed by someone saying, "Oh," which was quickly followed by another gunshot. A third neighbor testified that he was awakened by what he thought was a gunshot between 5:00 and 5:30 a.m.; that he moved to his porch and heard voices, "one loud and agitated and one very soft"; that the loud, agitated voice said, "Get in the f______ truck or I will kill you"; and that there was "a slight, slight pause" followed by "another shot, which [he] identified positively as a shot." The State presented evidence that a projectile that was fired from Barrett's .357 revolver entered through the open exterior door of the Barretts' home from outside the residence and came to rest in the wall behind the door.
According to the medical examiner, in addition to the gunshot wound that caused his death, Youngblood sustained over 40 injuries, including those that were consistent with his being struck on the head with a pistol multiple times, with his right eye being forcefully jabbed with a finger or fist while his head was on the ground, with his being grabbed under both armpits, with his back being scraped on a gravel drive, with his being kicked or stomped in the abdomen with a significant amount of force, and with his being kicked or stomped on the leg. Additionally, Youngblood had numerous contusions and abrasions above his navel and on his chest, abdomen, elbows, arms, wrists, legs, and feet. Several witnesses who saw Barrett immediately after the incident testified that they noticed either no or insignificant injuries to him.
The evidence also showed that there was a significant amount of blood inside and outside the residence, including on the carpet, door casings, wall, television, exterior door, and porch. Blood spatter evidence inside the home and at the rear of Youngblood's truck indicated that repeated blows capable of causing medium velocity spatter occurred in both places. DNA from blood recovered from both pistols matched Youngblood's DNA. The evidence also showed that the shooting occurred at the driver's side door of Youngblood's truck and that Youngblood was below the top edge of the door frame at the time. A blood "swipe" was present on the driver's side door just below the lock. There were no large rocks or weapons found on or near Youngblood's body. Based on this evidence and the medical examiner's testimony that the entrance gunshot wound was a contact wound behind the right ear, the State argued that a severely intoxicated and badly beaten Youngblood was trying to comply with Barrett's ultimatum and was at the door of his truck when Barrett put the gun to the back of his head and shot him.
2. The trial court charged the jury regarding self-defense, justification, accident, voluntary manslaughter, and defense of habitation under OCGA § 16-3-23(1).
3. Barrett claims that, in denying the motion for new trial, the trial court erred by not finding that his trial counsel failed to provide effective assistance of counsel in several respects. In order to prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel rendered deficient performance and that the deficient performance prejudiced his defense. See Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To meet the first prong of the test, a defendant must overcome the strong presumption that counsel's performance fell within a "wide range of reasonable professional conduct" and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. To meet the test's second prong, a defendant is required to show that there is a reasonable probability that, absent counsel's unprofessional errors, the result of his trial would have been different. See id. An ineffective assistance of counsel claim is a mixed question of law and fact; we accept the trial court's factual findings unless clearly erroneous, but we independently apply the legal principles to the facts. See Turpin v. Lipham, 270 Ga. 208, 211(3), 510 S.E.2d 32 (1998).
A. Barrett's Trial Counsel. Approximately one month after Barrett's arrest, the trial court appointed local attorney Fletcher Griffin to represent him. After the State filed notice of its intent to seek the death penalty, the trial court appointed Michael Mears of the Multi-County Public Defender's Office to act as lead counsel and directed that Griffin serve as co-counsel. Griffin was allowed to withdraw due to a conflict of interest, and William Oliver was appointed to replace him. Mears served as Barrett's lead counsel for approximately one year. At a hearing in December of 2003, Barrett requested that he be allowed to serve as co-counsel for his defense, stating to the trial court that he "consider[ed] [him]self one of the best jailhouse lawyers" in the county and that he and his trial counsel had an "issue with strategy." The trial court denied Barrett's request. See Hance v. Kemp, 258 Ga. 649, 650(1), 373 S.E.2d 184 (1988) (holding that a defendant does not have the right to act as co-counsel). When, with the aid of family and friends, Barrett retained Lee Parks to represent him, the trial court permitted Mears and Oliver to withdraw from Barrett's case and eventually appointed Parks's law partner, Greg Valpey, to assist Parks.
Both Parks and Valpey had been practicing criminal law for approximately twenty years. Parks had spent approximately ten years as an assistant district attorney before forming his own criminal defense firm. At the time of representing Barrett, Parks had been involved in eleven death penalty cases, ten as a prosecutor and one as defense counsel. Valpey had served as defense co-counsel in one death penalty case that went through trial. Despite trial counsel's experience, Barrett alleges that they made several errors and omissions in their representation of him. Thus, it is appropriate to look first at trial
B. Investigation and Presentation at Trial. After Parks entered Barrett's case in February of 2004, Mears provided him with his file and the information that he had obtained through his investigation, which Mears and his defense team reviewed "very extensively" with Parks. Parks testified that he saw everything in Mears's file and that he reviewed the discovery provided by the State. Barrett's trial was scheduled to begin in July of 2004. However, after Parks and Valpey conducted voir dire and approximately one-third of the otherwise qualified jurors were excused due to prejudice, bias, or fixed opinions as a result of their knowledge of the case or the parties, the trial court granted defense counsel's motion for a change of venue and accepted their proposal that the case be transferred to Hall County for purposes of venue.
Trial counsel's defense strategy was to show that Barrett and Youngblood were "lifelong" friends who spent the evening of August 3, 2002, drinking beer together after Youngblood came to Barrett's home "agitated," "angry," and already injured as a result of having engaged in an earlier altercation, that Youngblood had a propensity for violence when he became intoxicated, and that Youngblood was the aggressor on the morning of the shooting. When the report of the Georgia Bureau of Investigation (GBI) Crime Lab indicated that the results of Youngblood's blood test for alcohol might not be reliable, defense counsel agreed to enter into a stipulation with the State at trial that Youngblood's blood alcohol level was 0.242 grams per 100 milliliters and that a blood alcohol level of 0.08 grams per 100 milliliters constitutes a presumption that a person is under the influence of alcohol to the extent that it would be less safe to drive.
The first defense witness was Deborah Fortenberry, who testified that she had known Barrett and Youngblood since they were teenagers, that she was present at the South Side Bar in Helen when Barrett and Youngblood came in on the evening of August 3, 2002, that they stayed until the bar closed at midnight, that the two were their usual friendly selves toward each other even though Youngblood "was not as happy as he usually [wa]s," and that Youngblood may have had a "mark" in his lip area, thereby corroborating Barrett's testimony that followed. Barrett's testimony established a prima facie case of justification, see Division 1, and allowed the defense to present evidence of prior violent acts by Youngblood against third parties. See Harrison v. State, 268 Ga. 574, 577(3), 492 S.E.2d 218 (1997) (explaining the threshold showing required before evidence of a victim's prior violence is admissible).
The defense presented two witnesses to testify regarding the victim's prior violent acts. Youngblood's ex-wife testified that she had a cast on her left arm and was driving with an intoxicated Youngblood and her two young children in the car when Youngblood forced her to pull over by grabbing her right arm, "put his fist through the windshield," yanked the keys from the ignition, and grabbed her arm, twisted it behind the seat, and threatened to break it. His former roommate testified that an intoxicated Youngblood struck her without warning, causing her to "hit the wall" and "f[a]ll over on the couch"; that he "jumped over [her] shoulders," "pinned [her] down," "beat [her] up," "[t]ried to rip [her] teeth out," and "beat [her] until he passed out nearly from exhaustion"; and that she suffered a concussion and other injuries requiring medical treatment. Both witnesses testified that they were familiar with Youngblood's reputation in the community and that he had a reputation for violence, and his former roommate also opined that alcohol consumption was "the main trigger" for Youngblood's violence. The State introduced certified copies of accusations
Based on testimony elicited by his cross-examination of the State's witnesses, Parks attacked the investigation of the case during closing argument by contending that law enforcement failed to promptly secure and adequately process the crime scene, to canvas the neighborhood, and to make an audio recording of their interviews with Ms. Barrett and Barrett. Parks also attacked the reliability of Ms. Barrett's and the medical examiner's testimony, which is more thoroughly discussed below, and he reminded the jury of Youngblood's prior violent acts, his two guilty pleas to battery, his reputation for violence when intoxicated, and his high level of intoxication at the time of his death. After also reminding the jury of Youngblood's bad behavior and Barrett's perception that he was "trying to get a large rock," Parks then argued that, regardless of whether the rock "really was there or not," it was Barrett's perception and the reasonableness of that perception under the circumstances that mattered. Parks described the shooting as occurring when Youngblood "lunge[d]" at Barrett, Barrett "[went] back, [and] the gun [went] off," and trial counsel sought and obtained jury instructions on self-defense, accident, voluntary manslaughter, and defense of habitation. Nonetheless, the jury returned guilty verdicts on all counts.
At the sentencing phase, the State presented as evidence in aggravation the testimony of six witnesses, including Barrett's sister and brother-in-law. Their testimony showed the following: Barrett was present at a fight in the early 1980's and, when an individual intervened, Barrett pointed a pistol at him and said, "Let them fight"; Ms. Barrett took out a warrant for Barrett's arrest in May of 2002 after Barrett knocked her to the ground and kicked her, but she later signed "a letter" that Barrett helped her write denying that he hurt her and stating that she did not wish to prosecute; while incarcerated awaiting trial, Barrett and a fellow inmate carried out Barrett's idea to burn a hole in the inmate's cell window to receive cigarettes, and Barrett also sought to have someone smuggle in "hacksaw blades"; a Hall County deputy overheard Barrett say that the deputies "wouldn't have any trouble out of him unless he was found guilty"; and Barrett made what family members perceived to be a serious threat to kill his sister because he was angry about the possible distribution of certain items in his mother's estate.
On cross-examination of these witnesses, trial counsel elicited the following testimony: the individual at the fight also pulled a gun on Barrett, Barrett was not involved in the fight, and the police, who were called to the fight, looked for but never found a gun in Barrett's possession; the "letter" that Ms. Barrett referred to was actually her sworn affidavit that had been prepared by an attorney, and the grand jury had returned a no bill for the charge arising out of the incident; the inmate agreed to testify against Barrett as part of a plea agreement involving not one but two criminal cases against him, he never saw anything pushed through the hole in his window from the outside, his contraband lighter was used in creating the hole, and he had convictions for possession of methamphetamine with the intent to distribute and for criminal interference with government property; it had been several days since the deputy overheard Barrett's statement, which he obviously had not acted on; and Barrett also did not act on his threat to his sister or even confront her directly with it, the estate had been settled, his sister had had subsequent conversations with Barrett, and she loved him. In addition to effectively cross-examining the State's witnesses, trial counsel prevented the State's introduction of additional evidence in aggravation, including almost 20 prior incidents by Barrett and evidence that a razor blade was discovered in his mattress while he was incarcerated awaiting trial.
Trial counsel presented the testimony of two mitigation witnesses. Davis Sutton testified that he first became acquainted with Barrett when he watched Barrett play high school basketball, that they became close friends when Sutton returned from his military service in Vietnam, and that Barrett was "one of the few people" that recognized him
Sutton's testimony supported trial counsel's mitigation theory of showing Barrett's good character, remorse, and possibilities for redemption.
Fortenberry testified that she had known both Barrett and Youngblood for over 20 years, that she had a good relationship with both of them, and that Barrett and Youngblood had a "[v]ery good" relationship with each other based on an "unconditional" love that caused them to put each other before themselves. As she explained, "You couldn't like one without liking the other," because "[t]hey just wouldn't have it." She also testified that both men were "polite" and "protective" of those who could not protect themselves. She cited as an example the fact that Barrett and Youngblood were her only friends that tried to protect her from an abusive spouse. She described Barrett as "helpful" and "never rude," and she testified that he was worth saving, as he was "extremely good people." She indicated that, if Youngblood had been the defendant and Barrett the victim, she would be testifying "[t]he same way." Fortenberry's testimony affirmed trial counsel's guilt/innocence phase defense that Barrett and Youngblood were good friends and that Barrett would not have shot his friend except in a case of accident or justification. Thus, it supported trial counsel's residual doubt theory as to how the shooting occurred. Her testimony also supported trial counsel's mitigation theory of showing Barrett's good character.
At closing, Valpey argued residual doubt, contended that Barrett did not present concerns that he would murder again as he was so remorseful over having shot his friend that he wanted to end his own life, and maintained that Barrett was capable of "aton[ing] and mak[ing] amends" if presented with an opportunity for redemption. Valpey explained that the defense was not offering an explanation such as "a troubled childhood" for Youngblood's killing, because Barrett was "a 49-year-old man"; instead, he reminded the jury that Barrett had been a high school athlete, that he had a child,
C. Ineffective Assistance of Counsel at the Guilt/Innocence Phase. Barrett alleges that trial counsel rendered ineffective assistance at the guilt/innocence phase in various ways.
(1) Failure to develop and present evidence of the victim's methamphetamine use. Barrett alleges that trial counsel were ineffective by failing to develop and present evidence of Youngblood's methamphetamine use at the time of the crimes to explain his irrational and volatile behavior. "Evidence of drug use is inadmissible when it is intended only to impugn a victim's character and has no relevance to any disputed issues in the case." Crowe v. State, 277 Ga. 513, 514, 591 S.E.2d 829 (2004). See OCGA § 24-2-2. In order for evidence of Youngblood's methamphetamine use to have been admissible at trial, Barrett was required to show how the use of the drug contributed to Youngblood's behavior so as to make it relevant to his justification defense. See James v. State, 270 Ga. 675, 676(2), 513 S.E.2d 207 (1999).
At the hearing on the motion for new trial, Barrett introduced testimony that Youngblood had used the drug on several occasions, the occasion nearest in time to the incident being two to three days before the date of the crimes. However, "[he] was unable to show in his [hearing on the motion for new trial] that [Youngblood] had been using [methamphetamine] at a time close enough to the shooting to have had an influence on him at the time of the shooting." Id. Accordingly, evidence of methamphetamine use was not relevant and thus would have been inadmissible at Barrett's trial. See id. (finding that evidence that the victim was "a regular [marijuana] user" was irrelevant to the defendant's justification defense and properly excluded, where the defense could not demonstrate that the victim smoked marijuana on the day of his death). Because the testimony Barrett contends should have been presented about Youngblood's alleged methamphetamine use was irrelevant and inadmissible, trial counsel did not act deficiently by failing to locate and produce witnesses to present that testimony at trial. See Smart v. State, 277 Ga. 111, 113(5), 587 S.E.2d 6 (2003) (finding that trial counsel was not deficient for failing to discover and produce irrelevant and inadmissible evidence). Barrett's related argument that trial counsel were deficient in failing to introduce expert testimony connecting Barrett's alleged methamphetamine use to his behavior also fails in the absence of any evidence that Youngblood was actually under the influence of methamphetamine at the time that Barrett shot him. See James, 270 Ga. at 676(2), 513 S.E.2d 207; Carter v. State, 303 Ga.App. 142, 148(3), 692 S.E.2d 753 (2010).
Barrett also claims that trial counsel were ineffective in failing to request that the Crime Lab test Youngblood's blood and urine for the presence of methamphetamine. In support of this claim, Barrett presented the testimony of a pharmacologist who testified that the Crime Lab had the capability of testing for the presence of methamphetamine in blood and urine at the time of Barrett's trial. However, Barrett failed to present any evidence establishing that the presence of methamphetamine in Youngblood's blood or urine would have established that he was under the influence of the drug at the time of the shooting. See James, 270 Ga. at 676(2), 513 S.E.2d 207 (finding that evidence of marijuana use found in the victim's blood was irrelevant where it did not conclusively show the victim's use within a few hours before death, and there was no evidence that the victim was actually under the influence of marijuana at the time the defendant shot him). Furthermore, while the pharmacologist indicated that Youngblood's behavior immediately before the shooting as deduced from his review of Barrett's trial testimony was consistent with the combined use of alcohol and methamphetamine, he acknowledged that Youngblood's behavior could also be consistent with the use of alcohol alone. Moreover, he could only speculate as to what, if any, effect methamphetamine would have had on Youngblood at the time of his fatal confrontation with Barrett. Accordingly, Barrett failed to show that, even had evidence of methamphetamine use been found in Youngblood's blood or urine, such evidence
(2) Conflict of interest claim. In a related claim, Barrett contends that, in denying his motion for new trial, the trial court erred by finding that his trial counsel were not ineffective based on a conflict of interest on the part of trial counsel. To establish ineffective assistance of counsel due to a conflict of interest, "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." (Footnote omitted.) Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Accord State v. Mamedov, 288 Ga. 858, 860, 708 S.E.2d 279 (2011). Whether a conflict of interest denied a defendant his right to effective counsel "is a mixed question of law and fact, and we review the questions of law involved de novo." (Citations omitted.) Davis v. Turpin, 273 Ga. 244, 246(3)(a), 539 S.E.2d 129 (2000).
At the hearing on the motion for new trial, Barrett presented the testimony of Patonia Nations, who testified that, while incarcerated with Barrett, she told him the following: her uncle brought Youngblood to her home on either August 1 or 2, 2002, where she sold Youngblood three and a half grams of methamphetamine; the three of them "did a line out of the bag," and Youngblood cornered her afterwards and tried to kiss her; she had to shove him a couple of times to get him off her; and Youngblood left with her uncle when he came into the room. Nations testified that at the time of Barrett's trial she was also represented by Parks in various criminal cases against her and that Parks told her in an interview concerning this incident that she could assert her Fifth Amendment right not to testify. Barrett contends that Nations's testimony would have supported his defense at trial based on Youngblood's irrational and volatile behavior and that Parks's failure to call Nations as a witness was the result of an actual conflict of interest that adversely affected his performance. The trial court denied Barrett's claim, finding that Parks gave several strategic reasons why he did not call Nations as a witness and, thus, Barrett did not meet his burden of showing that the alleged conflict of interest adversely affected Parks's decision not to call her to testify. See Cuyler, 446 U.S. at 348, 100 S.Ct. 1708. After an independent review of the record, we agree that any alleged conflict of interest did not adversely affect Parks's performance.
The most that Nations's testimony showed was that Youngblood purchased and used methamphetamine two to three days before his death. As discussed in subdivision (1) above, this evidence does not show that Youngblood was actually under the influence of methamphetamine at the time of his death. Therefore, even if Parks had called Nations as a witness, her testimony would have been irrelevant and, thus, inadmissible. See James, 270 Ga. at 676(2), 513 S.E.2d 207. Accordingly, Barrett has failed to establish that Parks's decision not to call Nations to testify was anything but a reasonable strategic decision or that Parks would have acted differently absent the alleged conflict of interest. See Reid v. State, 286 Ga. 484, 486(3)(a), 690 S.E.2d 177 (2010) (stating that the determination of which witnesses to call is a strategic decision). The trial court did not err in concluding that Barrett was not entitled to a new trial based on trial counsel's conflict of interest.
(3) Failure to present the testimony of Youngblood's girlfriend. Barrett contends that trial counsel were ineffective in failing to interview and present the testimony of Linda Janet Bettis Maney, Youngblood's girlfriend who was present at Youngblood's altercation with his cousin. Barrett claims that Maney could have corroborated his testimony that Youngblood told him that he had recently been in a fight with his cousin and could have described Youngblood's resulting agitation and injuries. Maney testified at the hearing on the motion for new trial that she was contacted by someone from trial counsel's office before Barrett's trial and that she told the individual that she did not
(4) Failure to obtain and develop impeachment evidence. Ms. Barrett's trial testimony included several details inculpating Barrett that were not contained in the statement that she made to law enforcement officers on the morning of the incident. At the hearing on the motion for new trial, Barrett presented the deposition testimony of Sutton, who testified that Ms. Barrett told him that the district attorney threatened her with prosecution if she did not testify concerning "things outside of what she knew." Although trial counsel interviewed Sutton prior to trial, they did not elicit this information from him. Barrett contends that trial counsel were ineffective for failing to do so, as it could have been used to impeach Ms. Barrett. The trial court denied this claim, finding that "the failure of trial counsel to investigate Sutton's knowledge of impeaching facts is only apparent in hindsight." We agree. See Davis v. State, 290 Ga. 584, 587(2)(b), 723 S.E.2d 431 (2012) ("[E]ffectiveness is not judged by hindsight...." (Citation omitted.)).
Barrett contends that trial counsel were ineffective for not anticipating that Ms. Barrett's trial testimony, unlike her statement, would inculpate Barrett, because they were aware that Ms. Barrett had made threats to Barrett's first lawyer, Fletcher Griffin, that, if Barrett did not sign over an insurance check to her, she would be an "unfriendly" witness at trial. However, this claim is not supported by the evidence. At the hearing on the motion for new trial, Griffin explicitly testified that Ms. Barrett never stated that she might change her testimony if Barrett did not sign the check over to her. Although he did state that he had "the feeling" that, if Barrett "didn't do what [Ms. Barrett] wanted him to do, that that would change her testimony," trial counsel are not deficient for failing to decipher and act on something as speculative as a former counsel's "feeling." See Banta v. State, 282 Ga. 392, 399(6)(e), 651 S.E.2d 21 (2007) ("Mere speculation will not support a claim of ineffective assistance of counsel."). Moreover, Parks testified at the hearing on the motion for new trial that the defense chose not to question Ms. Barrett about the insurance check at trial, because Barrett had "satisfied her about the check so that bringing it up ... would not be beneficial to [Barrett] and could cause the jury to think that ..., since he had done that and she was testifying the way she was, ... there may even be more there than what they're hearing." The decision not to cross-examine Ms. Barrett about the insurance check was a reasonable one. Furthermore, because Barrett had satisfied Ms. Barrett about the check, there was no reason for Parks to anticipate that Ms. Barrett would change her testimony based upon Barrett's refusal to cooperate with her. Moreover, there is no evidence that trial counsel did not consider that Ms. Barrett's testimony at trial might change, as a review of the record shows that they were prepared to thoroughly cross-examine her on the inconsistencies between her testimony and her statement to law enforcement. However, Barrett has failed to show that trial counsel had any reason to believe that Ms. Barrett would indicate to Sutton, who Ms. Barrett testified was Barrett's "long-life buddy," that at trial she intended to implicate Barrett. Barrett also has provided no evidence other than Sutton's hearsay testimony that the prosecution
Nor has Barrett shown that he was prejudiced. During her testimony, the jury heard that Ms. Barrett had filed for a divorce from Barrett, that the divorce would become final in two weeks, and that the marriage had been tumultuous and had lasted only a year. Trial counsel questioned Ms. Barrett on cross-examination regarding the significant portions of her testimony that she had omitted in her statement to police and at closing reminded the jury of the alleged inconsistencies and argued that her testimony was unreliable. Accordingly, Barrett failed to show that had counsel additionally impeached Ms. Barrett with Sutton's deposition testimony, there is a reasonable probability that the result of the trial would have been different. See Kendrick v. State, 287 Ga. 676, 680(4), 699 S.E.2d 302 (2010).
(5) Failure to request that the jury be instructed pursuant to OCGA § 16-3-23(2). As discussed in Division 2 above, trial counsel requested and were granted a jury instruction on defense of habitation under OCGA § 16-3-23(1); however, no jury instruction on defense of habitation under OCGA § 16-3-23(2) was requested, and none was given. Subsection (1) authorizes the use of deadly force to prevent or terminate an unlawful entry into or an attack upon a habitation if the "entry is made or attempted in a violent and tumultuous manner" and the defendant has a reasonable belief that the entry is made "for the purpose of assaulting or offering personal violence to any person" therein. Approximately four years before Barrett's trial, the General Assembly amended OCGA § 16-3-23 by inserting a new subsection (2) and re-labeling the previous subsection (2) as subsection (3). See Ga. L.2001, p. 1247, § 2. The current subsection (2) authorizes the use of deadly force against a person who is a non-member of the family or household if that person "unlawfully and forcibly enters ... the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred." Barrett contends that he testified at trial that, at the time of the shooting, he was standing over Youngblood in an attempt to block his re-entry into Barrett's residence when Youngblood lunged at him. Thus, he claims that, if the jurors had received a defense of habitation charge under subsection (2), there is a reasonable probability that they would have determined that he was entitled to use deadly force to defend against "an unlawful and forcible entry" even without finding that he was in reasonable fear of his life.
Parks testified at the hearing on the motion for new trial that he "was sure that he was vaguely aware" at the time of Barrett's trial that the defense of habitation statute had been amended in 2001 to add subsection (2), but he stated that he relied on the pattern charge book to obtain the language for his requests to charge and did not further research the defense of habitation defense.
While Barrett argues that his case is analogous to that of Benham v. State, 277 Ga. 516, 591 S.E.2d 824 (2004), in which this Court found trial counsel ineffective for failing to request a defense of habitation charge, Benham is distinguishable on its facts. In that case, it was undisputed that the victim struck the first blow by attacking the defendant through the window while she sat inside her automobile, see OCGA § 16-3-24.1 (providing that a motor vehicle is a habitation under OCGA § 16-3-23), and that someone tried to pull the victim away from the automobile at least twice but the victim resisted. See id. at 517, 591 S.E.2d 824. Here, however, it was undisputed at trial that Barrett and Youngblood were several feet outside the residence at the time of the shooting, and, contrary to Barrett's contention, Barrett did not testify that Youngblood was attempting to re-enter or attack the residence when the shooting occurred. See Coleman v. State, 286 Ga. 291, 298(6), 687 S.E.2d 427 (2009) ("Critical to the application of the defense of habitation is the moment in time at which the defendant resorts to deadly force and the act being performed by the victim at that moment."). Instead, according to Barrett's own testimony, the shooting occurred in the following manner. Barrett had Youngblood out of the house "to stay" when he went back inside the residence and sat down, but, after seeing Youngblood drag what he perceived to be a rock with his foot, he came out of the house and kicked Youngblood from one side of the porch to the other. As a result, Youngblood was lying on the ground several feet outside the residence, and Barrett testified that "[he] would have went in the apartment and locked the door ... had [he] not sent [Ms. Barrett] to go call [the police]." He explained that he could not leave Youngblood "out there," because he was a threat to Ms. Barrett, whom he expected to return at any time. While Barrett was holding the gun pointed at Youngblood, Youngblood lunged at him from his position on the ground. Barrett shot and killed Youngblood in response, which was consistent with Barrett's self-defense argument.
By rejecting Barrett's argument that he shot Youngblood in self-defense, the jury necessarily found that Barrett was not justified in using deadly force, because he could not have reasonably believed that such force was necessary to prevent death or great bodily injury to himself or a third person. By the time of the shooting, Youngblood had suffered over 40 injuries, including multiple severe lacerations to his head, a severe gouging to his eye, and a kick forceful enough to move him from one side of the porch to the other, and Barrett acknowledged that he knew that Youngblood was not armed. Given these facts, Barrett's own testimony, and the jury's rejection of Barrett's self-defense defense, there is no reasonable probability that the jurors would have considered Youngblood to be sufficiently threatening that, at the time of the shooting, Barrett could have reasonably believed that deadly force was necessary to prevent Youngblood from unlawfully and forcibly entering Barrett's residence. See Fair v. State, 288 Ga. 244, 257(2)(A)(3), 702 S.E.2d 420 (2010) ("The statute's introductory clause defines when an actor is justified in the use of any force or threats of force in the defense of habitation, namely, `to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation.'"). Accordingly, even assuming that a defense of habitation charge under subsection
(6) Failure to interview the medical examiner. Barrett contends that trial counsel were ineffective with regard to the State's expert witness, Dr. Lora Darrisaw, the medical examiner who performed the autopsy on the victim. While Dr. Darrisaw conducted Youngblood's autopsy, the deputy chief medical examiner, Dr. Mark Koponen, supervised her and signed the autopsy report because her Georgia license was pending at the time.
At the hearing on the motion for new trial, Barrett presented the testimony of Dr. Darrisaw, as well as his own medical expert, Dr. Kris Sperry. Both experts testified that it was possible that the muzzle of Barrett's .357 revolver contacted Youngblood's head behind his right ear when, as Barrett testified, he fired the gun as Youngblood lunged at him. Barrett now contends that trial counsel were ineffective in failing to interview Dr. Darrisaw and learn pre-trial that her opinion was not inconsistent with Barrett's account of the incident so that they could elicit this testimony at trial. The trial court found that trial counsel conducted a thorough investigation and that their actions were the result "of a strategic decision." While the court provided no analysis to show how it reached its conclusion, after an independent review of the record we agree that trial counsel thoroughly investigated the autopsy report and the victim's injuries, and we conclude that the approach that trial counsel took at trial with regard to Dr. Darrisaw was the result of a reasonable strategic decision. See Martin v. Barrett, 279 Ga. 593, 593, 619 S.E.2d 656 (2005) ("`Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]'" (Citation omitted.)).
A review of the record shows that Mears was representing Barrett at the time that the autopsy report was turned over to the defense and that, at least initially, Mears was highly critical of Dr. Darrisaw's report. At a motions hearing in August of 2003, he expressed to the trial court his disagreement with Dr. Darrisaw's conclusions regarding the wounds to the back of Youngblood's head and right eye. Mears showed the trial court an autopsy photograph of Youngblood, pointing out to the court that "there[wa]s a hole in the man's head between his eyeball and his nose." He stated repeatedly that it was his opinion that the bullet entered at that location "and went ... front to back and downward and exploded with massive force out the back of his head...." Mears also asserted that the autopsy report was deficient in numerous other respects, and he asked the trial court to issue an order directing that the defense be given "full and complete access" to all bench notes, photographs, tape recordings, and any other material relating to the autopsy, that the trial court
Although Parks testified that he did not recall interviewing Dr. Darrisaw prior to trial and that he himself did not consult any experts, he also testified that he reviewed everything in Mears's file and that he researched the issues surrounding the autopsy by reading relevant books and papers. He also testified that he questioned some of the conclusions in Dr. Darrisaw's report but that the defense team was unable to locate an expert that could provide any contrary testimony. Moreover, Parks stated that he found nothing in what he read or what Mears and his staff related to him that supported Barrett's contention that he shot the victim in the face, and Dr. Sperry, Barrett's own expert, testified at the hearing on the motion for new trial that, without question, the injury behind Youngblood's right ear was a contact entrance gunshot wound, that there was no exit gunshot wound, and that the wound to the eye was not an entrance gunshot wound. However, it is also evident from the record that Barrett has consistently and adamantly maintained that he shot Youngblood in the right eye.
At trial, Parks elicited testimony from Dr. Darrisaw that her Georgia license was still pending at the time of conducting Youngblood's autopsy and that his autopsy was among the first that she conducted after having completed a one-year fellowship in forensic pathology only five days earlier. Parks also elicited testimony from the GBI agent who analyzed the crime scene that it had been his opinion upon viewing Youngblood's body at the scene that the right eye injury was an entrance gunshot wound and that the bullet had exited the back of his head. When Barrett took the stand, he testified repeatedly that Youngblood was facing him when he fired the gun. He also vehemently denied jamming his finger or his hand into Youngblood's eye as Ms. Barrett had testified or that anything could have been responsible for the eye injury other than that it was an entrance gunshot wound.
The testimony that Parks elicited from Dr. Darrisaw enabled him to argue in closing that, when she "did this autopsy of Stumpy's body, she had been an assistant medical examiner for five days," that she "hadn't even been issued her license to practice in Georgia and had to be supervised," that "Stumpy's autopsy was one of the first autopsies she performed," and that the jurors "must consider her level of inexperience when considering what weight to give to her opinions." Then trial counsel argued that Barrett was
Moreover, neither the State nor the defense asked Dr. Darrisaw whether the fact that the wound to the back of Youngblood's head was a contact entrance gunshot wound would tell her anything about the positions of the participants other than that the muzzle of the gun was in contact with the skin when the shot was fired. Nevertheless, she implied that she had no opinion as to the participants' positions at the time of the shooting, as she testified that the pathway of the bullet "did not tell her anything" about the participants' positions and that "[she] would have to know that." Further, in closing, the prosecutor argued:
Thus, even assuming that trial counsel were deficient in failing to elicit testimony from Dr. Darrisaw that the head wound could have occurred as Youngblood lunged at Barrett, given her implication that she could not opine on the participants' positions at the time of the shooting and the State's concession that such a scenario was possible, Barrett cannot establish prejudice.
D. Ineffective assistance at the sentencing phase. Barrett contends that trial counsel were also ineffective at the sentencing phase, arguing that their investigation and presentation of mitigating evidence was inadequate. Finding that Barrett was adamant that no mitigation evidence be presented, that Barrett refused to assist counsel in locating mitigation witnesses, and that trial counsel hired a private investigator to seek additional mitigating witnesses, the trial court concluded that trial counsel were not deficient, as they "did everything reasonably within their means to investigate mitigating evidence," and it denied Barrett's claim without addressing prejudice. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (stating that a court need not address both components of an ineffective assistance claim if the defendant makes an insufficient showing on one).
Barrett maintains that, while the trial court correctly recognized that his case is governed by this Court's decision in Perkins v. Hall, 288 Ga. 810, 708 S.E.2d 335 (2011), it erred in its application of that decision in concluding that trial counsel were not constitutionally
Barrett maintains that, had trial counsel conducted a reasonable investigation and had other mitigation evidence prepared, perhaps they could have persuaded him to allow trial counsel to present it
In addressing the first group of new witnesses, Barrett's family members, this Court notes the following relevant testimony. At the hearing on the motion for new trial, Parks testified that, upon entering the case, he discussed with Barrett "the process" of presenting mitigation evidence and what evidence the defense could put forth; however,
Barrett presented no evidence contradicting trial counsel's testimony. Thus, it is undisputed that trial counsel specifically and repeatedly advised Barrett about allowing the introduction of mitigating evidence from his family members. Furthermore, trial counsel's clear, unambiguous, and unrefuted testimony that Barrett consistently maintained that he would not permit testimony from family members to be presented at trial is supported by Barrett's ex-wife's testimony. Therefore, Barrett cannot show that he was prejudiced by any alleged deficiency in trial counsel's failure to investigate and present this evidence. See Schriro v. Landrigan, 550 U.S. 465, 478, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (stating that "a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counsel's failure to investigate further possible mitigating evidence"); Reed v. Sec'y Fla. Dept. of Corr., 593 F.3d 1217, 1246 n. 19 (11th Cir. 2010); Cummings v. Sec'y Dep't of Corr., 588 F.3d 1331, 1359-1360 (11th Cir.2009). Accordingly, we do not consider this particular mitigation evidence in our prejudice inquiry. See Gilreath v. Head, 234 F.3d 547, 550 n. 10 (11th Cir.2000) (assuming trial counsel were deficient in failing to present certain types of mitigating evidence but refusing to consider mental health and alcohol abuse mitigation evidence in the prejudice inquiry, where counsel discussed presenting such evidence with the defendant and the defendant instructed counsel not to do so).
As to the second group of new witnesses, persons who knew Barrett from high school, most of these witnesses had had little or no contact with Barrett in approximately three decades, and at least two of these witnesses had never even had a personal relationship with him. The jury would not likely have found the testimony of these witnesses to be very relevant or reliable. Nor would the jury likely have found the testimony of several of these witnesses that Barrett was not violent to be particularly convincing in light of the family members' testimony that he had threatened to kill his sister and in light of the State's similar transaction evidence, which the jury was instructed that it could consider at the sentencing phase and which showed that, within approximately a year of shooting Youngblood, Barrett had assaulted a friend by striking him in the head with a gun and had pointed a gun about an inch from a friend's face and asked her if she were ready to die. The new mitigation evidence
As to the third group of new witnesses, individuals that knew Barrett at the time of the incident, some of these witnesses did testify about Barrett's generosity, willingness to help those in need, likeableness, reliability, kindnesses to women, and sports skills. However, much of the testimony is cumulative of that presented through the trial witnesses, including one whose testimony was more compelling than Barrett's new witnesses because he was the victim's own cousin. Much of the new testimony also contains the information that Barrett was heavily involved in partying that revolved around alcohol and drug use, evidence that the jury likely would not have found to be particularly mitigating. This Court has especially noted the testimony of one witness that Barrett "saved [her] life" when a friend pulled a knife on her and Barrett took the knife away before anyone could get hurt. However, the fact that this incident occurred over 20 years before Youngblood's shooting and that all the parties involved were using drugs and/or alcohol at the time it occurred would likely have undermined both the reliability and the mitigating effect of the account in the eyes of the jury if evidence about it had been presented at trial. Compare Schofield v. Gulley, 279 Ga. 413, 416(I)(A), 614 S.E.2d 740 (2005) (finding that trial counsel rendered prejudicially deficient performance in failing to investigate and present mitigation evidence that they were aware of that the defendant had saved the lives of two people). All things considered, this Court concludes that Barrett failed to show that, but for trial counsel's alleged deficiencies, there was a reasonable probability of a different outcome at the sentencing phase of his trial.
E. Combined effect of alleged errors. Barrett asserts that the trial court erred in failing to consider the combined prejudicial effect of trial counsel's deficiencies. See Schofield v. Holsey, 281 Ga. 809, 811-812 n. 1, 642 S.E.2d 56 (2007). However, considering the combined effect of the deficiencies we have assumed in the discussion above, we conclude that those deficiencies would not in reasonable probability have changed the outcome of either phase of Barrett's trial. See id. Therefore, Barrett's claim can provide him no relief.
4. Relying on 17 cases that he claims are similar to his own in which the defendant did not receive a death sentence, Barrett alleges that his death sentence is disproportionate to sentences imposed in similar cases. However, "[t]his Court views a particular crime against the backdrop of all similar cases in Georgia in determining if a given sentence is excessive per se or substantially out of line." (Emphasis supplied.) Gissendaner v. State, 272 Ga. 704, 717(19)(a), 532 S.E.2d 677 (2000). See Terrell v. State, 276 Ga. 34, 46, 572 S.E.2d 595 (2002) (Fletcher, C.J., concurring) (stating that this Court "does not determine whether the death sentence under review represents a large or small percentage of sentences in factually comparable cases" but, instead, examines the sentence "to ensure that it is not an anomaly or aberration"). The evidence construed to support the verdicts showed that Youngblood was a guest in Barrett's home. While Youngblood behaved badly, he was intoxicated to the point that he was helpless to defend himself, and, despite his provocative behavior, Ms. Barrett considered him to be no threat to her. Disregarding his wife's and the victim's repeated pleas to stop his relentless attack, Barrett pistol-whipped Youngblood, tossed him around like a "rag doll," stomped or kicked him, and gouged his eye so severely that a GBI agent and Barrett's own attorney thought that he had been shot in the eye. Then Barrett kicked Youngblood in the abdomen with sufficient force to move
The cases in the appendix support the imposition of the death penalty in this case in that all involve a murder committed during the commission of an aggravated battery or a murder involving the (b)(7) aggravating circumstance. Several also include evidence that the victim had engaged in some provocative behavior. These cases show the willingness of juries to impose the death penalty under these circumstances. "Rarely, if ever, will the facts surrounding two capital felony cases be exactly alike and we are not required to find identical cases for comparison in our proportionality review." Wilson v. Zant, 249 Ga. 373, 388(6), 290 S.E.2d 442 (1982), overruled on other grounds by Morgan v. State, 267 Ga. 203, 204-205(2), 476 S.E.2d 747 (1996). Rather, we are required to "determine whether the defendant's sentence of death is excessive in comparison to the sentences imposed in `similar cases' upon `similarly situated defendants.'" Id. (citing Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); [OCGA § 17-10-35](c)(3)). Considering the murder and the defendant, we find that Barrett's death sentence is not disproportionate within the meaning of Georgia law. See OCGA § 17-10-35(c)(3).
5. The evidence presented at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of the statutory aggravating circumstances in this case. See Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Jackson, 443 U.S. at 307, 99 S.Ct. 2781; OCGA § 17-10-35(c)(2). We conclude that Barrett's death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See OCGA § 17-10-35(c)(1).
Judgments affirmed.
All the Justices concur.
Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009); Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006); Braley v. State, 276 Ga. 47, 572 S.E.2d 583 (2002); Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002); Drane v. State, 271 Ga. 849, 523 S.E.2d 301 (1999); Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998); Carr v. State, 267 Ga. 547, 480 S.E.2d 583 (1997); Hittson v. State, 264 Ga. 682, 449 S.E.2d 586 (1994), overruled on other grounds by Nance v. State, 272 Ga. 217, 526 S.E.2d 560 (2000), and Henry v. State, 278 Ga. 617, 604 S.E.2d 826 (2004); Conklin v. State, 254 Ga. 558, 331 S.E.2d 532 (1985); Conner v. State, 251 Ga. 113, 303 S.E.2d 266 (1983).