Waters v. State

FINAL COPY

                 S23A0893. WATERS v. THE STATE.


      LAGRUA, Justice.

      Appellant Roy Lee Waters was found guilty but mentally ill of

felony murder in connection with the shooting death of Melvina

Dunlap.1 On appeal, Waters contends that the evidence was

insufficient to support his conviction, the trial court erroneously

denied Waters’s motion for a new trial on the “general grounds,” and

his trial counsel provided constitutionally ineffective assistance by

failing to further investigate Waters’s insanity defense. For the

reasons that follow, these claims fail, and we affirm Waters’s


      1 The crimes occurred on November 25, 2013. On February 20, 2014, a

Laurens County grand jury indicted Waters for malice murder (Count 1),
felony murder (Count 2), and two counts of aggravated assault (Counts 3 and
4). At a trial in September 2019, the jury acquitted Waters of malice murder
and found him guilty but mentally ill on the remaining charges. The trial court
merged the two counts of aggravated assault into the felony murder count and
sentenced Waters to serve life in prison with the possibility of parole. Waters
filed a timely motion for new trial, which was amended through new counsel.
After holding an evidentiary hearing, the trial court denied the motion for new
trial on March 30, 2023. Waters filed a timely notice of appeal, and his case
was docketed to this Court’s August 2023 term and submitted for a decision on
the briefs.

                                      1
conviction.

     The evidence presented at trial showed that in the early

morning hours of November 25, 2013, Waters, who was around 72

years old at the time, shot and killed Dunlap, his longtime girlfriend,

in their shared bedroom. After the shooting, Waters admitted in

calls he placed to his pastor and one of his brothers that he shot

Dunlap. In a call placed to another brother, Waters said,

“[S]omething happen[ed],” and that he was “in trouble.”

     An ambulance responded to the home of Waters and Dunlap

based on “a medical call.” When the EMT entered the home, Waters

directed the EMT to the back bedroom, stating, “I shot her.” The

EMT discovered Dunlap’s body in the bedroom, and the medical

examiner later determined that Dunlap’s cause of death was three

gunshot wounds to the face and torso.

     Shortly after the ambulance arrived, a sheriff’s deputy entered

the home and asked Waters, who was reading the Bible, what

happened; Waters responded that he “had been dealing with them

for a while.” Police recovered a Rossi .32-caliber pistol and four shell


                                   2
casings from the floor of the bedroom. Waters was arrested, and a

gunshot residue test was performed on his hands; it was positive for

the presence of gunshot residue. After Waters was read his

Miranda2 rights, he agreed to speak with police. In Waters’s

interview, he admitted that he shot Dunlap, but he struggled to

explain why he had done so. Waters stated that he and Dunlap had

gone to church the previous morning and “something happened in

church and [he] couldn’t figure out what it was,” but “it was eating

[him] up and tearing [him] up.” Waters later stated that he shot

Dunlap because she “did [him] wrong” by refusing to marry him and

that he did not want to hurt her.

     At trial, Waters asserted an insanity defense. During its case-

in-chief, the State presented Dr. Elliott Currence, a forensic

psychologist at Central State Hospital, as an expert in the field of

forensic psychology, and he was admitted as an expert without

objection. Dr. Currence testified that he evaluated Waters to

determine whether he was criminally responsible at the time of the


     2 Miranda v. Arizona, 

 (

, 16 LE2d 694) (1966).



                                    3
act, which Dr. Currence explained was an assessment to determine

a person’s mental state at the time of the alleged crime. Dr. Currence

explained that for a person to be found insane or not criminally

responsible at the time of the act, mental illness symptoms “have to

be severe enough to result in an inability to know that what you’re

doing is wrong or you’re so mentally ill that you’re not able to control

your behavior; you have a delusional compulsion.” Dr. Currence

elaborated that for such people the “illness is so severe that they

have no idea that what they’re doing is wrong or they have an

inability to stop themselves from doing it.”

     Dr. Currence noted that Waters “ha[d] a history of outpatient

treatment for schizophrenia before [the shooting].” After the

shooting, Waters was “psychiatrically hospitalized” at Central State

Hospital, documented as “being paranoid,” and later discharged

with diagnoses of schizophrenia and alcohol dependence.

     Dr. Currence interviewed Waters twice. Regarding the

shooting, Waters stated, “I don’t know what happened when I shot

[Dunlap], I was home, she was there, and the next thing I just had


                                   4
a gun in my hand and she was shot.” Waters further explained:

“After [Dunlap] was shot, I called my brother and I called a pastor.

I just wanted to call my people and let them know that something

bad happened. I know I needed help and I guess maybe they could

help me.” Dr. Currence testified that these phone calls after the

shooting were “indicative of [Waters’s] awareness of wrongfulness.”

Dr. Currence also testified that Waters’s lack of a clear memory of

what occurred was “not uncommon” among people with and without

a history of mental illness.

     When Dr. Currence asked Waters whether he had any previous

mental health issues, Waters responded that he had “bad nerves,”

for which he was prescribed medication. According to Dr. Currence,

Waters did not describe any delusions and he did not appear to have

any irrational thoughts. Dr. Currence stated that Waters was

cooperative   and    understood   that   his    behavior   had   been

“problematic.” In Dr. Currence’s opinion, Waters was criminally

responsible at the time of Dunlap’s shooting.

     In Waters’s defense, he presented the testimony of his


                                  5
pharmacist, who testified that he filled numerous prescriptions for

Waters in the month prior to the shooting. The pharmacist listed

Waters’s prescriptions and noted the reason they were generally

prescribed. The pharmacist was not admitted as an expert, and he

testified:

          The risperidone is generally used as antipsychotic.
     Clonazepam [is] an antianxiety agent. Paroxetine is [an]
     antidepressant. Pantoprazole is generally used for reflux
     disorders or stomach ulcer[s]. Isosorbide is a heart
     medication, usually to treat angina. Lisinopril [is] usually
     used for blood pressure. . . . Donepezil is used to treat
     Alzheimer’s or some type of dementia disorder.
     Hydrochlorothiazide is a diuretic which is used for fluid
     retention and blood pressure. . . . Tamsulosin is [used for
     a] prostate problem to increase urine flow.

During Dr. Currence’s testimony, he stated that risperidone is

commonly prescribed to treat schizophrenia and clonazepam is used

in the treatment for mental illness.

     Reverend Don Edwards testified that Waters attended church

approximately fifteen hours prior to the shooting and he appeared

upset and was crying. Because that was not Waters’s “normal

character,” Edwards went over to comfort Waters, but Edwards was



                                  6
unable to have a conversation with Waters because it was in the

middle of the church service. Waters’s son testified that Waters

came to see him after church and Waters was “keyed up,”

“sweating,” and “concerned about how [his son] was doing.” Waters’s

son stated that he had never seen his father act that way before.

     Waters’s two brothers and his son testified that they knew

Waters had previously spent time at Central State Hospital for

“emotional” or “mental problems” and that Waters took medication

for his “bad nerves.” One brother testified that when Waters was

taking an unspecified medication, he would become disoriented and

“wasn’t his real self.” Waters’s son testified that he had previously

witnessed a time when Waters “could barely walk” and “was almost

about to crawl coming in the house.” But Waters’s son was not sure

whether Waters had taken too much medication or not enough on

that occasion.

     Waters took the stand in his own defense. Waters stated that

he usually took his medication as prescribed, but that he did not

take his medication on the weekend of the shooting because overall


                                 7
he “fe[lt] like [he] took too much medicine” so he “backed off of it.”

Waters explained that he started “feeling bad” on the Sunday

morning that he went to church and stated, “I just — I couldn’t be

myself,” and that he felt worse upon leaving church that day. When

asked whether he shot Dunlap, Waters said, “I don’t know what

happened” and “I can’t remember.” But Waters admitted that he told

people that he shot Dunlap. Waters further stated that he had not

argued with Dunlap prior to the shooting and that he did not have

any thoughts about hurting or killing her.

     1. Waters contends the trial court erred in denying his motion

for new trial because the evidence presented at trial was insufficient

to support his conviction for felony murder. We disagree.

     Evidence is constitutionally sufficient to support a conviction

if, “‘after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Munn v. State,

 (1) (

) (2022) (quoting Jackson v.

Virginia, 

 (III) (B) (

, 61 LE2d 560)


                                  8
(1979)). “This Court does not reweigh evidence or resolve conflicts in

testimony but rather defers to the jury’s assessment of the weight

and credibility of the evidence.” Jones v. State, 

 (

) (2022) (citation and punctuation omitted).

     The evidence summarized above, including Waters’s admission

that he shot Dunlap, the presence of gunshot residue on his hands

after the shooting, and the recovery of a handgun and shell casings

in the room where Waters directed the EMT to locate Dunlap’s body,

was sufficient to authorize the jury to find beyond a reasonable

doubt that Waters was guilty of felony murder based on aggravated

assault. The jury was also authorized to reject Waters’s insanity

defense based on its assessment of the credibility of the witnesses

and of any conflicts in the evidence, including Dr. Currence’s

testimony that Waters was criminally responsible at the time of

Dunlap’s shooting. See Choisnet v. State, 

 (1) (

) (2014) (courts must also determine whether the jury was

authorized to reject an insanity defense when asserted). See also

Neuman v. State, 

 (1) (

) (2021). Thus,


                                  9
Waters’s sufficiency claim fails.

      2. Waters also appears to contend that the trial court erred in

denying his motion for new trial based on the “general grounds”

under OCGA §§ 5-5-203 and 5-5-21.4 “When these so-called ‘general

grounds’ are properly raised in a timely motion for new trial, the

trial judge must exercise a broad discretion to sit as a ‘thirteenth

juror.’” King v. State, 

 (2) (

) (2023)

(citing Ridley v. State, 

 (3) (

) (2023)).

“This role requires the judge to consider matters typically reserved

to the jury, including conflicts in the evidence, witness credibility,

and the weight of the evidence.” Ridley, 

 (3). But “the

merits of the trial court’s decision on the general grounds are not

subject to our review, and the decision to grant a new trial on the

general grounds is vested solely in the trial court.” King, 

 OCGA § 5-5-20 provides that “[i]n any case when the verdict of a jury

is found contrary to evidence and the principles of justice and equity, the judge
presiding may grant a new trial before another jury.”
      4 OCGA § 5-5-21 provides that “[t]he presiding judge may exercise a

sound discretion in granting or refusing new trials in cases where the verdict
may be decidedly and strongly against the weight of the evidence even though
there may appear to be some slight evidence in favor of the finding.”

                                       10
616 (2) (citation and punctuation omitted).

     To the extent Waters contends the trial court failed to exercise

its discretion as the thirteenth juror, we disagree. In its order

denying Waters’s motion for new trial, the court expressly rejected

Waters’s general grounds claim because it found that “the verdict

[was] not contrary to the law and principles of justice” and that “the

weight of the evidence supported the verdict and the verdict was

consistent with the principles of justice and equity.” Waters’s

general grounds claim therefore fails. See King, 

 (2)

(concluding the trial court properly exercised its discretion as the

thirteenth juror when “[i]n its order denying [the defendant’s]

motion for [a] new trial, the court expressly rejected [the

defendant’s] general grounds claim because it found that ‘the weight

of the evidence does not preponderate heavily against the verdict

and the verdict was not contrary to the evidence or the principles of

justice and equity’”). To the extent a sufficiency analysis is required

for a general grounds claim, see King, 

 (2) n.8, we

concluded in Division 1 that the evidence against Waters was


                                  11
constitutionally sufficient to affirm his conviction, so his claim fails

for this additional reason.

        3. Waters contends his trial counsel provided constitutionally

ineffective    assistance   because counsel    failed to    adequately

investigate Waters’s insanity defense by failing to procure an expert

to testify about Waters’s criminal responsibility at the time of

Dunlap’s shooting and failing to procure an expert to testify about

the side effects of Waters’s prescription medications. These claims

fail.

        (a) Background

        (i) Pretrial Competency Evaluations

        Soon after Waters’s arrest, trial counsel moved to have Waters

examined for his competency to stand trial, and this motion was

granted. Following a bench trial a couple of weeks later, the trial

court determined that Waters was not competent to stand trial, and

he was remanded to the custody of the Georgia Department of

Behavioral Health and Developmental Disabilities, i.e., Central

State Hospital, for treatment.


                                   12
      Fifteen months later, on March 3, 2015, a psychologist at

Central State Hospital “recommend[ed] that [Waters] be found

competent to stand trial.” Approximately two weeks later, Waters

was released on bond, with instructions that he comply with all

medical directives.5 In September 2015, trial counsel filed Waters’s

first notice of intent of defense of insanity. See Uniform Superior

Court Rule 31.5 (A).

      On February 16 and August 24, 2016, the trial court ordered

that Waters be evaluated for his criminal responsibility at the time

of the act.6

      Following a hearing on June 8, 2018,7 the trial court found that

rehabilitation of Waters’s competency was required and ordered

that he be transported to Central State Hospital for a competency

evaluation and, if appropriate, treatment. In an amended order, the


      5  The record does not explain what happened between the time the
psychologist “recommend[ed]” that Waters be found competent to stand trial
and when he was released on bond, e.g., whether there was a competency
hearing.
      6 It appears this evaluation was not completed until 2019.
      7 It is not clear from the record as to what occurred during the preceding

two years, except that status hearings were scheduled in May, September,
October, and November 2017.

                                      13
trial court noted that two psychologists determined that Waters was

not competent to stand trial and one psychologist determined that

Waters was competent to stand trial and “described an alleged

history of feigning.”

     On January 2, 2019, the trial court held a competency hearing

and received testimony from Dr. Currence. Following this hearing,

the trial court entered an order, finding Waters was competent to

stand trial and ordering that Waters be evaluated for his criminal

responsibility at the time of the act.

     (ii) Pretrial Criminal Responsibility Evaluation

     In May 2019, following receipt of Dr. Currence’s report, the

trial court held a hearing and entered an order, determining that

Waters “had the mental capacity to distinguish right from wrong in

relation to the alleged acts and that [Waters] was not under the

influence of a delusional compulsion which would overmaster his

will to resist committing the alleged acts.” Waters then filed his

second notice of intent of defense of insanity.

     (iii) Waters’s Motion for New Trial


                                  14
     At the motion-for-new-trial hearing, trial counsel testified that

his trial strategy was to pursue an insanity defense, and counsel was

aware that Dr. Currence planned to testify that Waters was

criminally responsible at the time he shot Dunlap. In response to

Dr. Currence’s anticipated testimony, counsel “reach[ed] out to . . .

psychiatrists” “that [he] had confidence in,” including the head of

psychiatry at Emory University, and counsel “ran the factual basis

by them and asked their professional opinion.” According to counsel,

the answer he received was that an insanity defense was “not going

to work,” so counsel decided not to hire a psychologist or

psychiatrist. Counsel testified that his “greatest fear” was for

Waters to undergo another examination and have that examination

confirm Dr. Currence’s opinion, resulting in “an additional witness

against” Waters.

     While trial counsel recognized that he “did not have any

witnesses to prove the legal trial strategy [of insanity],” he stated

that he presented witness testimony from which jurors “could reach

their own conclusion as to whether” Waters was criminally


                                 15
responsible at the time he shot Dunlap. These witnesses included

Waters’s family members, Reverend Edwards, and Waters’s

pharmacist. Counsel acknowledged that the pharmacist’s inability

to testify about the side effects of Waters’s medications on his mental

stability was “a problem” and that it would have been helpful “to

find a witness that could say the medications might have impacted

his mental stability.”

     The trial court denied Waters’s claims of ineffective assistance

of counsel, finding that “trial counsel’s representation did not fall

below the standard of reasonable professional conduct” and that

there was “no evidence the outcome [of the trial] would have been

impacted by an expert witness’s testimony regarding the

medications taken by [Waters] at the time of the incident,” i.e., the

trial court concluded the claims failed on both deficiency and

prejudice grounds.

     (b) Analysis

     To prevail on claims of ineffective assistance of counsel, Waters

must demonstrate both that his trial counsel’s performance was


                                  16
professionally deficient and that he was prejudiced by this deficient

performance. See Bates v. State, 

 (2) (

)

(2022) (citing Strickland v. Washington, 

 (III) (

, 80 LE2d 674) (1984)). To establish deficient performance,

Waters must show that trial counsel performed his duties in an

objectively unreasonable way, considering all the circumstances and

in the light of prevailing professional norms. See 

 Establishing

deficient performance

     is no easy showing, as the law recognizes a strong
     presumption that counsel performed reasonably, and [the
     appellant] bears the burden of overcoming this
     presumption. 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. 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.

Park v. State, 

 (2) (

) (2022)

(citation and punctuation omitted). To establish prejudice, Waters

must prove that there is a reasonable probability that, but for his

trial counsel’s deficiency, the result of the trial would have been



                                 17
different. See Bates, 

 (2). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” 

(citation and punctuation omitted). “And, this burden is a heavy

one.” 

 (2) (citation and punctuation omitted). “If an

appellant fails to meet his or her burden of proving either prong of

the Strickland test, the reviewing court does not have to examine

the other prong.” Taylor v. State, 

 (5) (b) (

) (2023) (citation and punctuation omitted).

    (i) Failure to Procure Expert to Testify About Waters’s Criminal
Responsibility at the Time of Dunlap’s Shooting

     Waters contends his trial counsel provided constitutionally

ineffective   assistance because counsel failed to         adequately

investigate Waters’s insanity defense by failing to procure an expert

to testify about Waters’s criminal responsibility at the time of

Dunlap’s shooting. We agree with the trial court that counsel was

not deficient.

     “Typically, the decision whether to present an expert witness

is a matter of trial strategy that, if reasonable, will not sustain a



                                  18
claim of ineffective assistance.” Guzman-Perez v. State, 

 (2) (

) (2020) (citation and punctuation omitted). We

have explained that when trial counsel makes a strategic decision

not to continue searching for a defense expert, but instead

challenges the State’s expert on cross-examination, while also

presenting a robust defense to other aspects of the State’s case,

counsel’s decision is not unreasonable and does not constitute

deficient performance. See Bates, 

 (2) (d).

     Here, Waters has failed to show that his trial counsel was

deficient for failing to further investigate Waters’s insanity defense

by procuring an expert to testify about Waters’s criminal

responsibility at the time of the shooting. As shown above, trial

counsel testified that he “reach[ed] out” to a few psychiatrists “that

[he] had confidence in,” including the head of psychiatry at Emory

University, and he “ran the factual basis by them and asked their

professional opinion.” According to counsel, the answer he received

was that an insanity defense was “not going to work.” Because of

this response, counsel felt that obtaining an expert “wasn’t going to


                                 19
be constructive.” Instead, counsel presented fact witnesses from

which jurors “could reach their own conclusion as to whether”

Waters was criminally responsible at the time he shot Dunlap. Thus,

“this is not a case where trial counsel made no effort to investigate

the potential for a defense based on mental health issues or relied

exclusively upon his own lay evaluation of the mental health of his

client,” Sullivan v. State, 

 (2) (b) (

) (2020)

(citation,   punctuation   and   emphasis    omitted), and      counsel

presented evidence to support an insanity defense through fact

witnesses, including witnesses who described Waters’s behavior

prior to the shooting and explained the medications he was taking

and why they were generally prescribed.

     Therefore, we cannot conclude that the investigation by and

tactical judgment of Waters’s trial counsel was objectively

unreasonable. See Bates, 

 (2) (d) (concluding that

trial counsel did not perform deficiently by failing to present an

expert to rebut the State’s expert on the defendant’s mental state at

the time of the shooting). Cf. Taylor, 

 (5) (c)


                                  20
(concluding that trial counsel did not perform deficiently by failing

to further investigate an insanity defense where the expert who

performed the defendant’s psychiatric evaluation concluded that the

defendant was competent to stand trial and was competent at the

time of the offense). Accordingly, this claim fails.

     (ii) Failure to Procure Expert on Medications

     Waters contends his trial counsel provided constitutionally

ineffective   assistance because counsel failed to         adequately

investigate Waters’s insanity defense by failing to procure an expert

to testify about the side effects of Waters’s prescription medications.

Assuming without deciding that counsel was deficient, we conclude

Waters has failed to establish prejudice.

     It is well established that a defendant fails to establish

prejudice under Strickland when he merely contends that trial

counsel was deficient for failing to present an expert, without also

presenting evidence at the motion-for-new-trial hearing about what

the potential expert would have testified to at trial. See, e.g., Allen

v. State, 

 (4) (a) (

) (2023) (concluding that


                                  21
the appellant failed to show prejudice when he “failed to present at

the motion for new trial stage any expert testimony or other

evidence indicating that he has in fact suffered from mental illness

at any point, let alone at the time of the crime such that he would be

able to avoid criminal responsibility or at the time of trial such that

he would be incompetent to stand trial”); Shelton v. State, 

 (3) (b) (

) (2022) (same when the appellant

“failed to present any evidence at the motion for new trial hearing

indicating that [the appellant] was in fact suffering from mental

illness at the time of the crime such that he would be able to avoid

criminal responsibility”); Mims v. State, 

 (2) (a) (

) (2019) (same when the appellant “did not present any

evidence [at the motion-for-new-trial hearing] that she had ever

been evaluated by an expert or that a psychologist reviewed the

record and formed an opinion as to her culpability at the time of the

offense”). This is because “mere speculation about what the evidence

would have shown had it actually been obtained does not satisfy the

requirement of showing prejudice.” Coley v. State, 

, 666


                                  22
(6) (b) (

) (2019) (citation and punctuation omitted).

     Here, Waters failed to present any evidence at the motion-for-

new-trial hearing about what evidence could have been elicited from

a potential expert testifying about the side effects, if any, of Waters’s

prescription medications. Waters therefore has not shown that a

reasonable probability exists that the result of the trial would have

been different had trial counsel attempted to retain an expert on the

potential side effects of Waters’s prescription medications. See

Coley, 

 (6) (b). As a result, this claim of ineffective

assistance fails.

     4. To the extent Waters contends that the combined prejudicial

effect of trial counsel’s deficiencies affected the outcome of the trial,

see Schofield v. Holsey, 

 (

) (2007), we have

stated that a defendant must show “that the cumulative prejudice

from any assumed deficiencies . . . showed a reasonable probability

that the results of the proceeding would have been different in the

absence of the alleged deficiencies.” Allen, 

 (4) (f). For

the purposes of this analysis, we have assumed the deficient


                                   23
performance of counsel in Division 2 (b) (ii). Since there are no other

trial counsel deficiencies to aggregate, cumulative-error analysis is

not applicable. See Holland v. State, 

 (4) (

) (2022) (cumulative-error analysis was not applicable because

there was only one instance of presumed deficient performance by

defense counsel).

     Judgment affirmed. All the Justices concur.




                    Decided December 19, 2023.

     Murder. Laurens Superior Court. Before Judge Gillis.

     W. Rocky Adams, for appellant.

     L. Craig Fraser, District Attorney, R. Brandon Faircloth,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Paula K. Smith, Meghan

H. Hill, Senior Assistant Attorneys General, for appellee.




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