Beard v. State

FINAL COPY

                S23A0906. BEARD v. THE STATE.


     BOGGS, Chief Justice.

     Appellant James Leon Beard III challenges his convictions for

felony murder and a firearm offense arising out of the shooting death

of his wife, Angela Bishop. Appellant contends that the trial court

committed plain error by failing to give the jury a no duty to retreat

instruction and by giving the jury a sequential unanimity

instruction on the lesser offense of involuntary manslaughter.

Appellant also asserts that he was denied effective assistance of

counsel and that the cumulative prejudice from the trial court’s

errors and his trial counsel’s deficiencies entitles him to a new trial.

However, as explained below, Appellant has not demonstrated that

the failure to instruct on no duty to retreat affected his substantial

rights or that the trial court erroneously instructed the jury

regarding the lesser offense, so he has not shown plain error.

Moreover, Appellant has not shown deficiency and prejudice as
required to establish ineffective assistance of counsel. Finally, the

cumulative prejudice from an assumed trial court error and

assumed deficiencies by trial counsel does not entitle him to a new

trial. Accordingly, we affirm.1

      1. The evidence at trial showed as follows. Appellant and

Bishop began a romantic relationship in 2003 and had four children

together. Appellant and Bishop argued often, which led to physical

altercations. Appellant had moved to the Atlanta area, but Bishop

still lived in South Carolina with her extended family and the

children. Two weeks before the shooting, the couple married.

      Bishop and the children visited Appellant in Atlanta every few

weeks, were going to move there, and had plans to visit Appellant


      1 The crimes occurred on March 31, 2017. On January 9, 2018, a DeKalb

County grand jury indicted Appellant for felony murder, aggravated assault,
and possession of a firearm during the commission of a felony. At a trial from
November 1 to 5, 2021, the jury found Appellant guilty of all counts. The trial
court sentenced Appellant to serve life in prison for felony murder and a
consecutive term of five years in prison for the firearm offense; the aggravated
assault count merged. On November 5, 2021, Appellant filed a timely motion
for new trial, which he amended on October 18, 2022, and on November 6, 2022.
After an evidentiary hearing on November 7, 2022, the trial court denied the
motion on March 24, 2023. Appellant filed a timely notice of appeal. The case
was docketed in this Court to the August 2023 term and submitted for a
decision on the briefs.
                                       2
on the weekend of the shooting. On the night of March 31, 2017,

Bishop and the children arrived at Appellant’s apartment complex

around midnight. The children waited in the car while Bishop went

upstairs to Appellant’s second-floor apartment to see if he was

awake. Bishop knocked on Appellant’s door. Appellant opened the

door, Bishop screamed, and Appellant shot her in the center of her

chest. Appellant then dragged Bishop down the stairs, threw his gun

into the woods behind the apartment building, and put Bishop into

the front passenger seat of her car. A bystander called 911, and the

police arrived as Appellant was attempting to leave in the car with

Bishop and the children. Bishop died from the gunshot wound.

     Appellant told the police at the scene that he heard knocking

on his door but that when he looked through the peephole, it was

blocked. Appellant claimed that when he opened the door, “the gun

went off.” Later at police headquarters, Appellant told a detective

that Bishop “slapped” him when he opened the door.

     At trial, family and friends of Bishop testified about her

tumultuous relationship with Appellant, including an instance

                                 3
when Bishop said that Appellant choked her until she blacked out

and at least two instances when Bishop said that Appellant

threatened her with a gun. Michelle Deutch, an expert on domestic

violence, testified among other things that displaying a gun can be

a form of intimidation that is consistent with an abusive

relationship. A GBI firearms investigator testified that Appellant’s

gun would likely not fire accidentally.

     Appellant testified in his own defense, denying that he ever

initiated a physical fight with Bishop, threatened her with a gun,

choked her, or threatened to kill her. According to Appellant, on the

day of the shooting, Bishop texted him to say that she and the

children were not coming to visit him that weekend. Appellant said

that he was trying to get them to come and that his last text with

Bishop was around 4:00 or 5:00 p.m. when his cell phone ran “out of

minutes.” Appellant testified that between 11:00 p.m. and midnight,

he heard someone moving the doorknob to his apartment and what

sounded like someone trying to kick in his door. Appellant said that

because he was the maintenance man at his apartment complex, he

                                  4
was aware of previous home break-ins and shootings there, and he

claimed that he thought that an intruder was trying to break into

his apartment. Appellant also said that he looked through the

peephole, but the person at the door was covering it, and that he

asked through the door who was there three times, but there was no

response. Appellant testified that he then grabbed his gun, opened

the door, and looked to the right toward the stairs, and that his gun

“went off” when someone “struck” him with “a fist” on the left side

of his face. Appellant further testified that after shooting Bishop, he

dragged her down the stairs because she was too heavy to carry, and

that he was preparing to transport her to the hospital in her car

when the police arrived. According to Appellant, the detective who

interviewed him at police headquarters made comments about his

“face being swollen.”

     On cross-examination, Appellant admitted that his gun had

never accidentally gone off before and that when he shot Bishop, he

had his finger on the trigger of his gun and “intended to pull the

trigger.” However, he claimed that he did not know that the person

                                  5
he was shooting was Bishop, whom he said he did not see at all. The

distance between his door and the wall to his left where he claimed

Bishop stood was only about two to two-and-a-half feet.

     2. Appellant contends that the trial court committed plain

error by failing to give a no duty to retreat jury instruction.

Appellant did not request such an instruction and did not object to

the jury charge as given. Thus, as Appellant acknowledges, we

review this claim only for plain error. See OCGA § 17-8-58 (b).

     The plain-error standard has four prongs. First, there
     must be an error or defect — some sort of deviation from
     a legal rule — that has not been intentionally
     relinquished or abandoned, i.e., affirmatively waived, by
     the appellant. Second, the legal error must be clear or
     obvious, rather than subject to reasonable dispute. Third,
     the error must have affected the appellant’s substantial
     rights, which in the ordinary case means he must
     demonstrate that it affected the outcome of the trial court
     proceedings. Fourth and finally, if the above three prongs
     are satisfied, the appellate court has the discretion to
     remedy the error — discretion which ought to be exercised
     only if the error seriously affects the fairness, integrity or
     public reputation of judicial proceedings.

Reese v. State, 

 (

) (2023) (cleaned up).

Appellant must satisfy all four prongs to succeed on this claim. See


                                   6


       Trial courts have a duty to ascertain the law applicable to each

case and to instruct the jury accordingly. See Gilchrist v. State, 

 (

) (1998). To authorize a jury instruction,

there must be at least “slight evidence” supporting the instruction.

Munn v. State, 

 (

) (2022). Appellant

asserts that the trial court obviously erred in failing to instruct the

jury on OCGA § 16-3-23.1, which says:

            A person who uses threats or force in accordance
       with Code Section 16-3-21, relating to the use of force in
       defense of self or others, Code Section 16-3-23, relating to
       the use of force in defense of a habitation, or Code Section
       16-3-24, relating to the use of force in defense of property
       other than a habitation, has no duty to retreat and has
       the right to stand his or her ground and use force as
       provided in said Code sections, including deadly force.

We have explained that such an instruction “is required only when

the issue of retreat is raised by the evidence or placed in issue.”

Whittaker v. State, 

 (

) (2023) (cleaned

up).




                                    7
     Assuming without deciding that retreat was raised by the

evidence or placed in issue, that the trial court’s failure to instruct

the jury on no duty to retreat was a clear or obvious error, and that

Appellant did not affirmatively waive the error, Appellant has not

shown that the lack of a retreat instruction affected his substantial

rights. Even when retreat is raised by the evidence or otherwise

placed in issue, we have held that reversal is not required for failure

to give an instruction on no duty to retreat when the jury is

otherwise properly instructed on justification and self-defense. See,

e.g., Ballard v. State, 

 (

) (2015);

Edmonds v. State, 

 (

) (2002). Although

some of us question the correctness of that case law, Appellant has

not argued that these cases were wrongly decided, but more

importantly, he has not demonstrated that the lack of an additional

specific instruction on no duty to retreat affected the outcome of his

trial. See Whittaker, 

. See also Shaw v. State, 

 (

) (2013) (affirming conviction

because the defendant “had a fair opportunity to present evidence of

                                  8
his claim of self-defense through his own testimony at trial” and

because “[t]he charges given . . . fairly informed the jury as to the

law of self-defense”).

     3. Appellant also claims that the trial court committed plain

error by giving a sequential unanimity jury instruction on

involuntary manslaughter as a lesser offense of murder. However,

Appellant did not object to the jury charge as given. Thus, as

Appellant acknowledges, he must show plain error to obtain a

reversal on this ground. See OCGA § 17-8-58 (b).

     We have held that “when the evidence presented in a criminal

trial warrants a jury instruction on a lesser-included offense, the

trial court errs if it instructs the jury that it may consider the lesser

offense only if it first unanimously finds the defendant not guilty of

the indicted greater offense.” Stewart v. State, 

(

) (2021). However, “an instruction that tells the jury

that it should consider possible verdicts in a particular sequence is

not an improper sequential jury instruction as long as the

instruction does not insist on unanimity as to a not-guilty verdict on

                                   9
the greater offense before consideration of the lesser offense.” 

 (cleaned up). In deciding whether the trial court gave an

improper sequential unanimity instruction, we treat a preprinted

verdict form as part of the jury instructions. See Cheddersingh v.

State, 

 (

) (2012). Thus, what trial

courts must avoid is “any instruction, including on a verdict form,

that directs the jury to consider the lesser offense only if it first

unanimously finds the defendant not guilty of (reaches a verdict of

not guilty on) the indicted greater offense.” Stewart, 

.

     After instructing the jury on the definitions of felony murder

and involuntary manslaughter, the trial court gave the following

instruction:

          If you do not believe beyond a reasonable doubt that
     the defendant is guilty of felony murder, but you do
     believe beyond a reasonable doubt that the defendant is
     guilty of involuntary manslaughter, then you would be
     authorized to find the defendant guilty of involuntary
     manslaughter. And the form of your verdict in that event
     would be we, the jury, find the defendant guilty of
     involuntary manslaughter.

     Toward the end of the jury charge, the trial court instructed,


                                  10
“Whatever your verdict is, it must be unanimous, that is agreed to

by all of you who are deliberating. The verdict will be in writing, and

it must be signed by your foreperson, dated, and returned to be

published in open court.” The trial court further instructed the jury

on how to fill out the verdict form: “[Y]ou will see on the verdict form

under Count 1, felony murder, then you will see not guilty or guilty.

You need to make a selection there, okay. You will also see

involuntary manslaughter. You will need to make a selection; not

guilty or guilty.” The preprinted verdict form listed the options with

respect to count one as follows:

     ___ Not Guilty
     ___ Guilty of Felony Murder
     ___ Not Guilty of Felony Murder but Guilty of Involuntary
     Manslaughter

     There was no error, much less clear or obvious error, in these

instructions and the verdict form. The instructions and verdict form

did not explicitly require the jury to find Appellant not guilty of

felony murder before considering involuntary manslaughter.

Compare Kunselman v. State, 

 (

834) (1998) (holding that the trial court erred in instructing the jury,

“[I]f you find the defendant not guilty of burglary, you would then

and only then be authorized to consider the lesser included offense

of criminal trespass on that count.” (emphasis supplied)). The trial

court’s instruction that if the jury did not believe beyond a

reasonable doubt that Appellant was guilty of felony murder, but did

believe beyond a reasonable doubt that he was guilty of involuntary

manslaughter, then it would be authorized to find him guilty of that

crime — along with the direction to make a selection as to each —

was not an improper sequential unanimity instruction. See Reese,

 (holding that trial counsel did not perform

deficiently in failing to object when the trial court instructed the jury

to “consider the felony murder first. If you don’t find that, then you

would consider involuntary manslaughter.”); Camphor v. State, 

 (

) (2000) (no reversible error where

the trial court instructed the jury, “Should you find the defendant

not guilty of the crime of burglary, you would be authorized to

consider under the evidence whether or not he did . . . commit the

                                   12
lesser offense of criminal trespass.”). See also Jackson v. State, 

 (

) (1996) (“We know of no authority which

requires that charges on a lesser included offense . . . precede the

charge on the greater offense.”). The inclusion in the jury charge of

the pattern jury instruction that any verdict by the jury must be

unanimous did not transform the jury instructions and verdict form

into an improper sequential unanimity instruction. See Reese, 

; Stewart, 

. Accordingly, Appellant

has failed to demonstrate plain error.

     4. Appellant claims that he was denied effective assistance of

counsel in six ways. We disagree.

     To establish a claim of ineffective assistance of counsel, a

defendant must prove deficient performance by his counsel and

resulting prejudice. See Strickland v. Washington, 

(

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

a defendant must show that his attorney performed his duties in an

objectively unreasonable way, considering all the circumstances and

in the light of prevailing professional norms. See 

. To

                                 13
overcome the “strong presumption” that counsel performed

reasonably, a defendant must show that no reasonable attorney

would have done what his attorney did or would have failed to do

what his attorney did not do. Bonner v. State, 

 (

) (2022). “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.” Wells v. State, 

(

) (2014) (cleaned up). See also Cannon v. State, 

 (

) (2017) (“A strategic decision about what

jury instruction to request will be deemed deficient performance

only if it is patently unreasonable.”). The defendant must also prove

prejudice: that but for his counsel’s unprofessional errors, a

“reasonable probability” exists that the outcome of the proceeding

would have been different. Strickland, 

. A

“reasonable probability” is “a probability sufficient to undermine

confidence in the outcome.” 

     (a) Appellant points first to his trial counsel’s alleged failure to

                                   14
conduct a reasonable investigation into, and to subpoena to testify

at his trial, a potential defense witness. At the motion for new trial

hearing, Appellant presented the testimony of his cousin,

Christopher Woodberry. According to Woodberry, Appellant called

him the day before the shooting, told him that Bishop decided not to

visit for the weekend, and invited him to come over the next day.

Woodberry said that on the night of March 31, 2017, he awoke at

Appellant’s apartment to “violent banging” on the front door that

lasted 12 to 15 minutes. Woodberry claimed that when Appellant

opened the door, “[s]omeone came through and slapped him.”

Woodberry testified that after the shooting, he called 911 and then

fled the scene. Woodberry admitted that Appellant’s trial counsel

had contacted him before the trial and that he refused to speak with

Appellant’s counsel.

     Appellant’s trial counsel testified at the motion for new trial

hearing that he made repeated attempts to contact Woodberry

before the trial; that when he eventually spoke to Woodberry,

Woodberry said that he did not want to get involved at Appellant’s

                                 15
trial; and that Woodberry told him, “[Y]ou don’t need me to testify;

I couldn’t help you.” Counsel further testified that he knew

Woodberry and did not think that he would be a credible witness,

and that subpoenaing him and forcing him to testify “would have

been a catastrophe” because he did not know what Woodberry would

say and could not have erased Woodberry’s testimony from the

jurors’ minds once he had elicited it. Counsel also testified that he

had an “in-depth conversation[ ]” with Appellant about Woodberry

and that Appellant ultimately agreed with counsel that Woodberry

should not be called to testify at Appellant’s trial. In its order

denying Appellant’s new trial motion, the trial court found that

Woodberry was not a credible witness, credited trial counsel’s

testimony, and noted that Woodberry was a convicted felon.

     Appellant’s claim that his trial counsel failed to reasonably

investigate Woodberry as a potential defense witness was rejected

by the trial court at the motion for new trial hearing. See Kimbro v.

State, 

 (

) (2023) (“In reviewing a claim

of ineffective assistance of counsel, we accept the trial court’s factual

                                   16
findings and credibility determinations unless clearly erroneous . . .

.” (cleaned up)). Moreover, Appellant has failed to show that trial

counsel’s decision not to call Woodberry as a defense witness was

objectively unreasonable. See Atkinson v. State, 

, 526-

527 (

) (2017) (holding that it was objectively

reasonable for counsel not to call a witness where counsel believed

that the witness might not be credible); Bryant v. State, 

 (

) (2016) (holding that trial counsel made a

reasonable strategic decision not to call an “uncooperative alibi

witness” who refused to speak with counsel’s investigator); Fortson

v. State, 

 (

) (2006) (holding that trial

counsel was not deficient in not calling a witness who was “not

credible” and would have offered “counter-productive” testimony).

Thus, Appellant has not shown deficient performance.

     (b) Appellant points next to his trial counsel’s failure to object

to Deutch’s expert testimony on domestic violence as not within the

proper scope of expert opinion and irrelevant. Specifically, Appellant

asserts that Deutch’s testimony consisted of basic facts that were

                                  17
not beyond the ken of the average layperson and of “irrelevant”

examples that did not relate to the evidence at Appellant’s trial.

During her testimony, Deutch explained that domestic violence

theorists hypothesize that an abuser’s goal is power and control and

that an abuser directs his or her anger and violence toward his or

her partner to control that person. She testified that this theory of

domestic violence, called power and control dynamics, grew out of

the Duluth Project in the 1980s and is widely accepted in her field.

Applying that analytical framework, Deutch referred to the “power

and control wheel,” a diagram that illustrates behaviors that are

characteristic of an abusive relationship. She stated that experts

look for the presence of eight behaviors to identify relationships that

are abusive. For example, Deutch asserted that the display of a

weapon can constitute the abusive behavior of intimidation. Deutch

clarified that not all the behaviors she identified were present in all

abusive relationships.

     We assume without deciding that trial counsel performed

deficiently in failing to object to Deutch’s testimony on the two

                                  18
grounds that Beard now raises.2 However, he has failed to show the

required prejudice. The jurors had already heard that Appellant

choked Bishop and threatened her with a gun, so Deutch’s testimony

was largely duplicative and cumulative. Because the evidence was

cumulative, any deficiency in failing to object to the evidence did not

amount to Strickland prejudice. See Eubanks v. State, 

 (

) (2023) (“Admitting inadmissible evidence can be

harmless if substantial, cumulative, legally admissible evidence of

the same fact is introduced.” (cleaned up)).

      (c) Appellant also points to his trial counsel’s failure to request

a no duty to retreat instruction. However, as explained above,

Appellant has not shown that the lack of such an instruction affected


      2 The current statute governing the admissibility of expert testimony in

criminal cases is OCGA § 24-7-702 because the General Assembly repealed
former OCGA § 24-7-707 (2013). See Ga. L. 2022, p. 201, §§ 1-2. And as we have
explained,
      although Georgia’s new Evidence Code is applicable to the trial of
      this case, the evidentiary requirements relating to the
      admissibility of expert opinion testimony in a criminal case under
      [former OCGA § 24-7-707 (2013)] are nearly identical to those that
      applied under the former Evidence Code (OCGA § 24-9-67).
      Accordingly, it is appropriate to rely . . . on decisions under the old
      Code.
Robinson v. State, 

, 735 n.2 (

) (2020) (cleaned up).
                                     19
his substantial rights. Accordingly, he also has failed to show

Strickland prejudice from his trial counsel’s failure to request a no

duty to retreat instruction. See Parker v. State, 

, 140 n.8

(

) (2019) (“The test for harm under plain error review

is equivalent to the test in ineffective assistance of counsel cases for

whether an attorney’s deficient performance has resulted in

prejudice of constitutional proportions.” (cleaned up)).

     (d) Appellant further points to his trial counsel’s failure to

object to the allegedly improper sequential unanimity jury

instruction on involuntary manslaughter. As discussed above,

however, the jury instructions and preprinted verdict form did not

constitute an improper sequential unanimity jury instruction. Thus,

an objection on this ground would have been meritless, and

Appellant has failed to show deficient performance. See Mann v.

State, 

 (

) (2015) (holding that trial

counsel’s failure to object to an instruction was not deficient

performance because “any objection to the instruction would have

been meritless, and the failure to make a meritless objection does

                                  20
not constitute ineffective assistance of counsel”).

     (e) Appellant also points to his trial counsel’s decision to

withdraw his request for a jury instruction on defense of habitation.

However, trial counsel testified at the motion for new trial hearing

that based on his decades of experience as a criminal defense

attorney, juries did not favor justification defenses based on a

defense of habitation, and Appellant points to little evidence

supporting that defense. We cannot say that trial counsel’s strategic

decision to withdraw his request for a defense of habitation jury

instruction and instead to pursue a straightforward justification

defense based on self-defense was patently unreasonable. Thus,

Appellant has failed to show deficient performance. See Hendrix v.

State, 

 (

) (2015) (holding that

experienced   trial   counsel’s   strategic   decision   to   pursue   a

misidentification defense over a claim of self-defense that was

contradicted by the evidence was not patently unreasonable); Patel

v. State, 

 (

) (2005) (holding that

“experienced trial counsel” made a reasonable strategic decision not

                                  21
to request a defense of habitation instruction “based on counsel’s

assessment of the jury and the evidence”), disapproved of on other

grounds by Gibbs v. State, 

 (

)

(2018).

     (f) Appellant also points to his trial counsel’s successful request

for a jury instruction on an inapplicable subsection of the

involuntary manslaughter statute and his failure to request a jury

instruction   on    the    applicable     subsection.     Trial     counsel

acknowledged at the motion for new trial hearing that he meant to

request a jury instruction on subsection (a) of the involuntary

manslaughter statute but instead mistakenly requested an

instruction on subsection (b), which the trial court gave.3


     3 The involuntary manslaughter statute, OCGA § 16-5-3, says:

           (a) A person commits the offense of involuntary
     manslaughter in the commission of an unlawful act when he
     causes the death of another human being without any intention to
     do so by the commission of an unlawful act other than a felony. A
     person who commits the offense of involuntary manslaughter in
     the commission of an unlawful act, upon conviction thereof, shall
     be punished by imprisonment for not less than one year nor more
     than ten years.
           (b) A person commits the offense of involuntary
     manslaughter in the commission of a lawful act in an unlawful

                                    22
     We assume without deciding that counsel was professionally

deficient in requesting a jury instruction on the wrong subsection of

the involuntary manslaughter statute. However, Appellant has not

demonstrated the required prejudice. As the trial court found in its

order denying the new trial motion, the evidence at trial showed

either that Appellant intentionally fired his gun in self-defense or

that the gun went off accidentally. There was little to no evidence

that Appellant shot Bishop by “consciously disregarding a

substantial and unjustifiable risk” that an act or omission by him

would cause bodily harm with “the disregard constitut[ing] a gross

deviation from the standard of care which a reasonable person would

exercise in the situation,” as required for involuntary manslaughter

based on the misdemeanor crime of reckless conduct. OCGA § 16-5-

60. See Anderson v. State, 

 (

) (2017)




     manner when he causes the death of another human being without
     any intention to do so, by the commission of a lawful act in an
     unlawful manner likely to cause death or great bodily harm. A
     person who commits the offense of involuntary manslaughter in
     the commission of a lawful act in an unlawful manner, upon
     conviction thereof, shall be punished as for a misdemeanor.
                                   23
(noting that “involuntary manslaughter [under OCGA § 16-5-3 (a)]

is inconsistent with both the defense of self-defense and the defense

of accident”).

     By contrast, the evidence of Appellant’s guilt of felony murder

based on aggravated assault was strong. There was no physical

evidence that Bishop was trying to break into the apartment at the

time of the shooting or that she was armed; it was highly unlikely

that Appellant did not see Bishop as she stood in the two- to two-

and-a-half-foot space between the doorway and the wall to the left

of the doorway; Appellant dragged Bishop down the stairs after he

shot her; Appellant attempted to hide the gun before the police

arrived; no officer testified that Appellant had any apparent

injuries; and Appellant admitted that he fatally shot Bishop. See

Fuller v. State, 

 (

) (2005) (holding

that the defendant failed to show Strickland prejudice from trial

counsel’s inconsistent requests to instruct the jury on OCGA § 16-5-

3 (b) and self-defense “given that the victim was unarmed and given

the strength of the evidence that [the defendant] intentionally

                                 24
stabbed the victim for his failure to have her money”). Thus,

Appellant has failed to show prejudice from the assumed deficiency.

     5. Finally, citing State v. Lane, 

 (

)

(2020), Appellant argues that he is entitled to a new trial due to the

cumulative prejudice from the trial court’s errors and his trial

counsel’s   deficiencies.   “To   establish   cumulative   error,   [the

defendant] must show that (1) at least two errors were committed in

the course of the trial; and (2) considered together along with the

entire record, the multiple errors so infected the jury’s deliberation

that they denied [the defendant] a fundamentally fair trial.” Jackson

v. State, 

 (

) (2023).

     The prejudice we must consider cumulatively here stems from:

(1) assumed trial court error in failing to instruct the jury on no duty

to retreat; (2) assumed trial counsel deficiency in failing to request

a jury instruction on no duty to retreat; (3) assumed trial counsel

deficiency in failing to object to Deutch’s testimony as not beyond

the ken of the average layperson; and (4) assumed trial counsel

deficiency in failing to request an instruction on the applicable

                                   25
subsection of the involuntary manslaughter statute. The prejudice

from the first two assumed errors is identical: the result of both was

that the jury did not receive a no duty to retreat instruction. See

Priester v. State, 

, 492 n.20 (

) (2023). And

that prejudice, combined with the prejudice from other assumed

deficiencies, does not outweigh the strength of the admissible

evidence showing Appellant’s guilt of felony murder based on

aggravated assault. Accordingly, we conclude that the trial court

error and deficiencies by counsel assumed above did not deprive

Appellant of a fundamentally fair trial.

     Judgment affirmed. All the Justices concur.




                                 26
                   Decided December 19, 2023.

     Murder. DeKalb Superior Court. Before Judge Jackson.

     Matthew K. Winchester; McLendon Law Firm, Jason M.

McLendon, for appellant.

     Sherry Boston, District Attorney, Deborah D. Wellborn, Lenny

I. Krick, Andrew M. Healy, Assistant District Attorneys; Christopher

M. Carr, Attorney General, Beth A. Burton, Deputy Attorney General,

Paula K. Smith, Senior Assistant Attorney General, Chelsea S.

Harvey, Assistant Attorney General, for appellee.




                                27