In the Supreme Court of Georgia

Decided: February 6, 2024

S23A1034. LEE v. THE STATE.

 PINSON, Justice.

Appellant David Wallace Lee was convicted of malice murder 

for the shooting deaths of Meghan Bowen and James Harden.1 On 

appeal, Lee contends that (1) the evidence was insufficient to sustain 

his convictions as a matter of constitutional due process and under 

OCGA § 24-14-6; (2) the trial court erred by failing to grant a new 

trial on the general grounds; (3) the trial court abused its discretion

1 The crimes occurred on November 18-19, 2015. On January 25, 2016, a 

Coffee County grand jury indicted Lee for two counts of malice murder (Counts 

1, 2), two counts of felony murder (Count 3, 4), and violations of the Georgia 

Controlled Substance Act (Counts 5, 6). Lee was tried by a jury from October 

16 to 19, 2017. The jury found Lee guilty of Counts 1-4. Counts 5 and 6 were 

nolle prossed. Lee was sentenced to consecutive sentences of life in prison without the possibility of parole for Counts 1 and 2. Counts 3 and 4 were vacated 

by operation of law. Lee filed a timely motion for new trial and amended that 

motion through new counsel several times. Following a hearing, the trial court 

denied Lee’s motion on March 10, 2023. Lee filed a timely notice of appeal. The 

case was docketed to the August 2023 term of this Court and submitted for a 

decision on the briefs.
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by admitting certain testimony about Lee’s possession of a gun similar to the murder weapon; (4) the trial court erred by failing to disqualify an assistant district attorney; and (5) his trial counsel provided ineffective assistance by: (a) failing to review evidence of allegedly exculpatory cell phone data; (b) failing to review evidence 

related to Chris Bowen (“Chris”), Bowen’s ex-husband; (c) failing to 

review discovery evidence and cross-examine certain witnesses 

about an earlier incident when Lee allegedly shot a man named Joey 

Taylor in the ankle; (d) failing to effectively cross-examine the 

State’s witnesses about the lack of physical evidence and the timeline of the night of the murders, (e) failing to object to the admission 

of certain text messages based on testimony from a non-expert GBI 

Agent; (f) failing to renew his motion for a change of venue; and (g) 

failing to provide Lee with all the discovery before trial.

Each claim fails. The evidence was sufficient to support Lee’s

convictions and the trial court applied the correct standard in denying Lee’s motion for new trial on the general grounds. And the trial 

court did not abuse its discretion in admitting testimony about Lee’s 
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possession of a gun similar to the murder weapon or by failing to 

disqualify the Assistant District Attorney absent an actual conflict 

of interest. Lee also failed to show that he received constitutionally 

ineffective assistance of counsel. So we affirm his convictions and 

sentence.

1. The evidence at trial showed the following. 

(a) Lee and Bowen were in a relationship that many witnesses 

described as tumultuous. A number of witnesses testified about incidents of threats or violence in the relationship: Bowen’s father recalled that throughout Bowen’s relationship with Lee, she would 

have “busted” lips and bruises. One friend, Brittany O’Neal, testified 

that on several occasions Bowen had sent her photos of “a gash on 

her head” and “bruises all over her body.” Another friend recalled a 

time when Lee accused Bowen of cheating on him and, according to 

Bowen, “punched her in the crotch.” And several friends recalled 

Bowen telling them about times when Lee kicked, hit, choked, or 

threatened to kill her. In one such incident in late summer 2015, Lee 

stuck a gun in Bowen’s mouth, put her in his car, and drove her 
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around “all night” threatening to kill her and telling her he would

“put [her] body in a well and they’d never find [her].”

In the months before the murders, the violence in Lee and 

Bowen’s relationship escalated. Bowen moved in with Lee in late 

August 2015. On that day, just before Bowen brought her belongings 

to Lee’s house, Lee called her, cursed at her over the phone, and told 

her not to come. When Bowen and a friend arrived at Lee’s house, 

Lee came out of the house with a long barrel gun, ran toward the

friend’s car, stopped five or ten feet away, and fired the gun over the 

top of the car. 

A little over a week later, Lee called the police to ask about 

removing Bowen’s property from his house. On the call, Lee admitted to breaking the windows of Bowen’s van. A responding deputy 

saw that Lee had used a drill to break Bowen’s windows and windshield. The deputy arrested Lee for trespassing. 

Soon after that incident, Bowen moved out of Lee’s house and 

into a mobile home about a mile away. On November 1, Lee went to 

Bowen’s mobile home, took away her phone, and tried to get inside. 
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Bowen shut the door on Lee, but Lee attempted to break in with an 

axe. Bowen and her five-year-old daughter escaped out the back door 

and hid in the woods. As they hid, Lee again broke all her car windows. After this incident, Lee called Bowen’s father and the police 

and told them that someone else had damaged Bowen’s car and door. 

Bowen later texted a friend: “I’ll get a [temporary protective order] 

if needed. I hate that it’s this way. I told him I don’t feel safe with 

him . . . .” Three days later, on November 4, Bowen got a temporary 

protective order against Lee. Afterward, on separate occasions, 

Bowen saw Lee drive by her home “a lot” and once saw him standing 

in her backyard shooting a gun into the air.

Lee also sent Bowen a number of threatening messages. On 

November 17, Lee texted Bowen, “Don’t let me catch [you] with 

somebody else.” The next day, Bowen had lunch at a restaurant with 

a friend, Trey Adams. Lee’s daughter saw them there and texted 

Lee. Lee then called Bowen and asked her, “who the f**k are you 

with,” and called her a “f***ing whore.” Bowen told Lee that she was 

with Adams. Lee responded, “B***h, I’m going to f**k you up,” and 
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“Motherf r, I’m going to f** k [Adams] up, too.” About ten minutes 

later Lee texted Bowen, “You are one trash b***h. Am so done, b***h

. . . . You got it coming.” 

That night, James Harden went to Bowen’s house around 9:00 

p.m. A half hour later, Adams called to check on Bowen, who said 

she was fine and that she would see him the next day. At 10:18 p.m., 

Lee texted Bowen, “You at home??” He texted her again at 10:21 

p.m., “U at home??” Bowen did not respond. At 10:22 p.m., Lee called 

Bowen with *67 to hide his number. She did not answer.

At around 11:30 p.m., a group of four people were sitting by a 

bonfire outside at a house “down the road” from Lee’s house when 

they saw Lee drive by in a white Toyota truck. Lee drove by their 

bonfire twice that night. The first time he was “riding along” normally, but the second time he was speeding, or “hauling a**” and 

listening to “blaring” music. 

Around 1:00 a.m. on November 19, Lee called the police and 

reported hearing gunshots that woke him up. Officers arrived at 

Lee’s house around 2:00 a.m. Lee told the police he had been working 
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in his shop until 9:00 or 9:30 p.m., went to sleep around 10:00 p.m., 

and woke up to the sound of gunshots. 

In the morning, Bowen’s father drove to Bowen’s house. When 

he arrived, he found Bowen’s front door open and a set of keys in the 

door. As he walked into the kitchen, he saw Harden’s body lying in 

the doorway between the kitchen and the bedroom. He then saw 

Bowen lying in the bathroom on her back. Both were dead and had 

numerous gunshot wounds. Bowen’s father immediately called 911. 

That same day, GBI Agent Ben Collins interviewed Lee. At 

first the interview was about Lee’s 911 call reporting the sound of 

gunshots outside his house. But Agent Collins then told Lee that 

“Bowen was deceased,” and “within a couple of minutes” of hearing 

this, Lee asked, “was she shot with a pistol?” and “was she shot with 

a gun?” Lee explained that his last contact with Bowen was the day 

before the murders, on November 17, because “she had sent him a 

text message stating that she could not have contact with him anymore.” That statement was belied by Lee’s cell phone records, which 

showed he called and texted Bowen on the night of the murders. 
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(b) The State introduced evidence that Lee shot Bowen’s friend, 

Taylor, at Bowen’s house two weeks before the murders. On the day 

of the shooting, Taylor stepped outside to smoke on Bowen’s back 

steps, and saw Lee drive up to the house. Lee pulled a gun from his 

truck and fired “[s]even, eight, nine” shots at Taylor. One of the bullets struck Taylor’s right ankle. 

According to Taylor, Bowen told him not to call the police about 

the shooting because she did not want the Georgia Division of Family and Children Services or “the law” to get involved. Taylor was 

taken to a hospital, but he honored Bowen’s wishes and did not say 

that Lee had shot him at Bowen’s home. Instead, he claimed he had 

shot himself. Nevertheless, the next day, Bowen told O’Neal that 

Lee had shot Taylor in the foot. But Lee claimed during his interview 

with Agent Collins on November 19 that he had not seen Taylor in 

three months. At trial, Taylor and O’Neal testified that Lee shot 

Taylor. Lee’s own witness, Shonda Gillespie, testified to the same. 

And another witness testified that Lee told him that Taylor was 

struck in the “crossfire” between Lee and Bowen.
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When Taylor heard that Bowen and Harden had been killed, 

he told police Lee had shot him in the ankle. Because the bullet was 

still in Taylor’s ankle, law enforcement had it removed and collected 

for comparison testing. That bullet was later determined to have 

been fired from the same gun as the bullets recovered from Bowen’s 

and Harden’s bodies. All the bullets also matched four .22-caliber 

shell casings that investigators found near Lee’s home. Taylor said

Lee shot him with a Ruger Mark II .22-caliber semi-automatic bullbarrel gun. But a firearms expert testified that it would be difficult 

to identify that gun at dusk or at night, when Taylor was shot. Another witness, Cam Fambrough, testified that about two years before the murders, he saw Lee with a .22-caliber pistol.

2. Lee contends that the evidence was not sufficient to support 

his convictions for malice murder as a matter of constitutional due 

process or under OCGA § 24-14-6.

(a) When evaluating a due process challenge to the sufficiency 

of the evidence, “we view the evidence presented at trial in the light 

most favorable to the verdicts and ask whether any rational trier of 
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fact could have found the defendant guilty beyond a reasonable 

doubt of the crimes of which he was convicted.” See Peacock v. State, 

314 Ga. 709, 714 (2) (b) (878 SE2d 247) (2022) (citation and punctuation omitted). See also Jackson v. Virginia, 443 U.S. 307, 319 (III) 

(B) (99 SCt 2781, 61 LE2d 560) (1979). In doing so, we “leave to the 

jury the resolution of conflicts or inconsistencies in the evidence, 

credibility of witnesses, and reasonable inferences to be derived from 

the facts.” Perkins v. State, 313 Ga. 885, 891 (2) (a) (873 SE2d 185) 

(2022) (citation and punctuation omitted).

Applying that standard here, the evidence summarized above 

was sufficient for a rational trier of fact to find Lee guilty beyond a 

reasonable doubt of malice murder. Ample evidence showed that Lee

had a history of abuse and jealousy toward Bowen, including his 

threats to kill Bowen in the months before the murders. The evidence also authorized the jury to conclude that Lee lied about where 

he was on the night of the murders: Lee told law enforcement that 

he was at home and went to sleep around 10:00 p.m., but the witnesses from the bonfire on Lee’s street told police that they saw Lee 
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drive by twice that night around 11:30 p.m.2 Finally, the evidence

authorized the jury to find that Lee was the shooter: ballistics evidence showed that the person who shot Bowen and Harden also shot 

Taylor (and multiple witnesses testified that Lee shot Taylor), and

Taylor and Fambrough both saw Lee with a .22-caliber gun—the 

kind of gun that the GBI firearm expert testified was the murder 

weapon. See Smith v. State, 315 Ga. 357, 359-361 (1) (882 SE2d 289) 

(2022) (evidence was constitutionally sufficient where two witnesses 

identified the defendant as holding a rifle near the victim and a firearms expert matched shell casings found at the crime scene and the 

bullet that killed the victim with a rifle found near the defendant’s 

house). This evidence was constitutionally sufficient to support Lee’s

2 Some of the bonfire witnesses’ testimony at trial deviated from this 

timeline, but the jury was authorized to believe the bonfire witnesses’ prior 

statements to police and reject their inconsistent trial testimony. See Watkins 

v. State, 313 Ga. 573, 576-577 (2) (872 SE2d 293) (2022) (jury may credit witnesses’ prior statements and discredit portions of their trial testimony) (citing 

Agee v. State, 311 Ga. 340, 343 (1) (857 SE2d 642) (2021) (“A prior inconsistent 

statement of a witness who takes the stand and is subject to cross-examination 

is admissible as substantive evidence.” (citation and punctuation omitted)), 

and State v. Hinton, 309 Ga. 457, 462 (2) (847 SE2d 188) (2020) (“The trier of 

fact is not obligated to believe a witness even if the testimony is uncontradicted 

and may accept or reject any portion of the testimony.” (citation and punctuation omitted))).
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convictions. See id.

(b) Lee also contends that the evidence was entirely circumstantial and did not rule out his alternative theories that either 

Chris or Taylor committed the murders.

A conviction may rest on circumstantial evidence alone if that 

evidence “exclude[s] every other reasonable hypothesis save that of 

the guilt of the accused.” OCGA § 24-14-6. However, “not every hypothesis is a reasonable one, and the evidence need not exclude 

every conceivable inference or hypothesis,” only the reasonable ones. 

Graves v. State, 306 Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation 

and punctuation omitted) (emphasis in original). “The questions 

whether any alternative hypotheses are reasonable and whether the 

circumstantial evidence excludes any such hypotheses are for the 

jury.” Willis v. State, 315 Ga. 19, 24 (2) (880 SE2d 158) (2022). Finally, “we will not disturb the jury’s findings on those questions unless they are insupportable as a matter of law.” Id. (citation and 

punctuation omitted).

The evidence here authorized the jury to reject Lee’s
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alternative hypotheses as unreasonable. As recounted above, the 

State presented ballistics evidence showing that the bullet found in 

Taylor’s ankle was fired from the same gun as the bullets recovered 

from Bowen’s and Harden’s bodies, and all of the bullets matched 

four .22-caliber shell casings that investigators found near Lee’s 

home. On appeal, Lee suggests Taylor could have shot himself in the 

foot and then shot Bowen and Harden with the same gun, but the 

jury could have rejected that hypothesis as unreasonable given the 

lack of any apparent motive for Taylor to shoot Lee or any explanation for how matching .22-caliber casings ended up at Lee’s home.

And Lee suggests that Chris could have accidentally shot his friend 

Taylor in the foot and then later shot Bowen and Harden, but no 

evidence supported the theory that Chris shot Taylor, and Chris had 

an alibi for the murders—a witness, Gillespie, testified that she was 

with him until 1:00 a.m. the next morning. So the jury was authorized to reject this hypothesis as unreasonable. See Morris v. State, 

317 Ga. 87, 94 (3) (891 SE2d 859) (2023) (jury was authorized to 

reject as unreasonable the alternative theory that another person
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was the shooter where the jury heard testimony describing the circumstances of the shooting and multiple people told police that the 

defendant was the shooter).

3. Lee contends that the trial court committed reversible error 

when it failed to grant his motion for a new trial because the verdict 

was contrary to the evidence and the principles of justice and equity

and was decidedly and strongly against the weight of the evidence. 

This argument implicates the “general grounds” for obtaining a new 

trial. See OCGA §§ 5-5-20, 5-5-21. When the general grounds are 

properly raised in a timely motion for new trial, the trial court exercises broad discretion to sit as a “thirteenth juror” and consider matters typically reserved to the jury, including conflicts in the evidence, witness credibility, and the weight of the evidence. King v. 

State, 316 Ga. 611, 616 (2) (889 SE2d 851) (2023). The trial court did 

that here: the court expressly rejected Lee’s general grounds claim, 

explaining that it independently reviewed the record and found the 

verdict was “not contrary to the evidence,” “not decidedly nor 

strongly against the weight of the evidence,” and “not contrary to 
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law and the principles of justice and equity.” And the merits of a 

trial court’s decision on the general grounds are not subject to our 

review—that decision “is vested solely in the trial court.” Id. (citation and punctuation omitted). So Lee’s claim that the trial court 

should have granted his motion based on the general grounds presents nothing for us to review.

4. Lee next contends that the trial court abused its discretion 

in admitting the testimony of Cam Fambrough because the evidence 

was not relevant and should have been excluded under OCGA § 24-

4-403 (Rule 403).

(a) Before trial, the State moved to introduce evidence concerning a 2013 incident when Lee went to Fambrough’s home with a firearm that Fambrough described as a .22-caliber Browning Buck 

Mark. At the pretrial hearing, Fambrough testified that Lee came 

to his house in 2013 after Lee and Fambrough’s son got into a “little 

tussle” earlier in the day and Fambrough’s son hit Lee. According to 

Fambrough, Lee stood under Fambrough’s carport with a gun in his 

holster and threatened to kill Fambrough’s son. Fambrough 
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explained that he recalled that Lee had a .22-caliber “bull barrel”

gun with a long barrel that looked like a Browning Buck Mark. The 

State argued that Fambrough’s identification of Lee’s gun was relevant because it matched the descriptions that Taylor and the firearms expert gave of the murder weapon. The trial court allowed the 

testimony but directed the State to limit questioning to whether 

Fambrough saw Lee with that same kind of gun in 2013. At trial, 

Fambrough testified that Lee had a “.22 pistol” with a “target barrel 

on it, bull barrel, whatever you call it,” and did not go into the details 

of the interaction.

(b) Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the 

evidence.” OCGA § 24-4-401 (Rule 401). A trial court’s decision to 

admit or exclude evidence is reviewed for an abuse of discretion. See 

State v. Brinkley, 316 Ga. 689, 690 (889 SE2d 787) (2023) (quoting 

Martinez-Arias v. State, 313 Ga. 276, 285 (3) (869 SE2d 501) (2022)).

The trial court did not abuse its discretion by concluding 
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Fambrough’s testimony was relevant under Rule 401. Because the 

firearms expert determined the victims were shot with a .22-caliber 

firearm and the murder weapon was not found, evidence of Lee’s 

ownership of a .22-caliber firearm was relevant. Wilson v. State, 315 

Ga. 728, 739 (8) (a) (883 SE2d 802) (2023) (video evidence of defendants “brandishing a gun of the same model as the murder weapon” 

was relevant); Hanes v. State, 294 Ga. 521, 524 (3) (755 SE2d 151) 

(2014) (evidence of the defendant’s ownership of a gun “largely identical to the murder weapon in size, style, and brand” was relevant). 

(b) Under Rule 403, “[r]elevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation 

of cumulative evidence.” “Rule 403 is an extraordinary remedy, 

which should be used only sparingly, and the balance should be 

struck in favor of admissibility.” Harris v. State, 313 Ga. 225, 232 (3) 

(869 SE2d 461) (2022) (citation and punctuation omitted). Thus, “in 

reviewing issues under Rule 403, we look at the evidence in a light 
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most favorable to its admission, maximizing its probative value and 

minimizing its undue prejudicial impact.” Id. (citation and punctuation omitted). 

The trial court did not abuse its discretion in determining this 

testimony did not violate Rule 403. Fambrough’s testimony was, at 

the direction of the trial court, limited to only the description of the 

firearm Lee possessed. All Fambrough’s testimony showed was that 

Lee was at his home in 2013 and had a gun holstered on his hip that 

looked like a “.22 pistol” with a “target barrel” or “bull barrel” on it. 

This testimony had probative value because the forensic analyst testified that the victims and Taylor were shot with a .22-caliber gun 

and the actual murder weapon was never recovered. The “need for 

this type of evidence was greater” in this case based on circumstantial evidence “because it provided an additional set of facts from 

which the jury was authorized to infer [Lee’s] guilt.” Harris, 313 Ga. 

at 232 (3). And the danger of unfair prejudice did not substantially 

outweigh the probative value of Fambrough’s testimony. Fambrough’s testimony about Lee’s gun ownership was limited to his 
19

observation of Lee with a gun similar to the murder weapon. That 

was arguably inculpatory of Lee, but while “inculpatory evidence is 

inherently prejudicial in a criminal case, Rule 403 does not bar admission of such evidence merely because the defendant might suffer 

some amount of prejudice upon its introduction; it is only when unfair prejudice substantially outweighs probative value that the rule 

permits exclusion.” Id. at 232 (3) (cleaned up) (emphasis in original). 

Fambrough did not offer any details about the circumstances of their 

interaction, which might have unfairly cast Lee in a negative light. 

5. Lee contends that the assistant district attorney should have 

been disqualified because of his previous representation of Lee “in 

several criminal cases” in which he “acquired information and 

knowledge,” presenting a conflict of interest. We review the trial 

court's ruling on a motion to disqualify a prosecutor for an abuse of 

discretion. Neuman v. State, 311 Ga. 83, 88 (3) (856 SE2d 289, 296) 

(2021). In support of this claim, Lee cites only his motion to disqualify and the trial court’s one-line order denying the same—he points

to no evidence in the record showing that the assistant district 
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attorney actually represented him in prior cases, let alone evidence 

of the “information and knowledge” that the assistant district attorney might have acquired during that alleged representation that 

could have disadvantaged Lee. It is Lee’s burden to show what evidence supports this claim on appeal, and having failed to do so, his 

claim fails. Hornbuckle v. State, 300 Ga. 750, 753 (2) (797 SE2d 113)

(2017) (“The appellant bears the burden of proving error by the appellate record.” (citation and punctuation omitted)).

6. Lee contends that his trial counsel provided ineffective assistance in violation of the Sixth Amendment to the United States 

Constitution.

To establish ineffective assistance of counsel, a defendant must 

show both that his counsel’s performance was professionally deficient and that he suffered prejudice as a result. See Strickland v. 

Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984). “To prove deficiency, he must show that his lawyer ‘performed his duties in an objectively unreasonable way, considering 

all the circumstances and in the light of prevailing professional 
21

norms,’ which is ‘no easy showing, as the law recognizes a strong 

presumption that counsel performed reasonably.’” Scott v. State, 317 

Ga. 218, 221 (2) (892 SE2d 744) (2023) (citation omitted). To show 

prejudice, he must show “that there is a reasonable probability that, 

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

different.” Id. at 221-222 (2) (citation and punctuation omitted). “A 

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 (III) (B).

Lee raises seven separate arguments that trial counsel provided constitutionally ineffective assistance. Briefly, he claims that 

counsel failed to (1) review “exculpatory” cell phone records; (2) review evidence about Chris; (3) review evidence about Taylor’s shooting and as a result failed to effectively cross-examine Brittany 

O’Neal and Taylor; (4) effectively cross-examine the State’s witnesses about the lack of physical evidence and timeline of the murders; (5) object to the admission of text messages based on GBI Agent 

Chad Lott’s testimony; (6) renew his motion for a change of venue; 

and (7) provide Lee with all the discovery before trial. We review 
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each argument in turn.

(a) Lee contends that his trial counsel’s review of certain cell 

phone records was ineffective assistance. Lee points to counsel’s failure to (1) introduce text messages between Chris and Bowen, allegedly showing Chris’s rage toward Bowen in the hours before the 

murders; (2) notice that the Uniform Forensics Extraction Device 

(UFED) report—which showed data extracted from the victims’ cell 

phones—was missing for Bowen’s primary cell phone and, if present,

would have shown that Taylor lied about Lee shooting him in the 

ankle; and (3) introduce a text message from Bowen to Scott 

Harkleroad which would allegedly show Bowen knew nothing about 

Lee shooting Taylor. The cell phone records underpinning this ineffectiveness claim are not in the record on appeal: at the motion for 

new trial hearing, appellate counsel attempted to introduce a trial 

“demonstrative” incorporating the text messages, but the trial court 

ruled against its admission because it was not authenticated, and 

Agent Lott testified that the UFED report was inaccessible because 

either a passcode was unavailable or the phone was damaged.
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The unavailability of the records is fatal to these ineffectiveness claims. Lee argues that counsel was deficient for failing to introduce various text messages between Bowen and Chris, Taylor, 

and Harkleroad, respectively, but he offers no evidence to support 

his claim other than his own speculation that these texts exist and 

that they would have been exculpatory. Such speculation is not 

enough to establish deficient performance. See Payne v. State, 314 

Ga. 322, 334 (3) (g) (877 SE2d 202) (2022) (holding counsel was not 

deficient where appellant “offer[ed] no evidence in support of this 

claim other than suggesting that additional investigation could have 

led to exculpatory evidence”). See also Gittens v. State, 307 Ga. 841, 

844 (2) (a) (838 SE2d 888) (2020) (“Unfounded speculation about 

what additional investigation might have uncovered or about what 

unnamed witnesses may have testified [to] cannot support a claim 

that trial counsel was professionally deficient, nor can it establish 

prejudice.”). Because it is Lee’s burden to show ineffective assistance

in the record, this claim fails. See Smith v. State, 307 Ga. 106, 117-

118 (6) (834 SE2d 750) (2019) (concluding ineffective assistance 
24

claim failed because the appellants’ argument was speculative because they failed to identify any evidence in the record to support 

the claim) (citing Norton v. State, 293 Ga. 332, 339 (7) (d) (745 SE2d 

630) (2013) (“[S]peculation that error may have occurred is insufficient to show any deficiency on the part of counsel, or prejudice 

therefrom, and is insufficient to show reversible error.” (alterations 

accepted) (citation omitted))). 

(b) Lee next contends his trial counsel was ineffective in failing 

to review and present certain evidence about Chris.

At the motion for new trial hearing, Lee introduced (1) a GBI 

investigative report detailing an interview with Chris after Bowen’s 

death; (2) reports of incidents of domestic violence between Bowen

and Chris; and (3) evidence of Chris’s violence toward another

woman, Cheryl McCollum, months after the murders. At the hearing, Lee did not ask trial counsel why he did not present evidence to 

suggest Chris was an alternate suspect, call Chris as a witness, or 

introduce any of the reports of domestic violence into evidence. Instead, appellate counsel asserted only that the evidence related to 
25

Chris created “an insane amount of reasonable doubt,” and trial 

counsel responded that he “didn’t see an insane amount of reasonable doubt.” 

(i) Lee fails to show prejudice from any alleged deficiency from 

counsel’s failure to review and introduce the GBI interview report 

and the incident reports of domestic violence between Chris and 

Bowen. Lee identifies no portion of the GBI report of Chris’s interview or the domestic violence incident reports between Chris and 

Bowen that would have been “exculpatory.” The report reflects that 

Chris was “extremely agitated and upset” when he was interviewed 

on the night of the murders because he did not know why he was at 

the Sheriff’s Department. The report otherwise narrates a dispute 

between Chris and Bowen and Chris’s recollection of Bowen telling 

him that Lee had abused her on several occasions, most of which 

was introduced into evidence through other witnesses. Given that, 

and the fact that Chris had an alibi for the night of the shooting, Lee 

has not established that introducing the GBI report would have created a reasonable probability of an acquittal. Stepp-McCommons v. 
26

State, 309 Ga. 400, 409 (4) (b) (845 SE2d 643) (2020) (holding appellant’s ineffective assistance claim failed because he failed to show 

that the content of an interview contained exculpatory evidence raising a reasonable probability that, but for trial counsel’s failure to 

introduce it at trial, the results of the trial would have been different).

The same is true of the incident reports of domestic violence 

between Chris and Bowen. Several of the reports were from months 

or even years before the murders. Moreover, the reports were cumulative of other evidence presented at trial, including the testimony 

of Bowen’s father and friend who recalled Chris and Bowen’s abusive relationship, which trial counsel highlighted in his closing argument. Lee has not shown that either the GBI report or the domestic violence incident reports “contained exculpatory evidence raising 

a reasonable probability that, but for trial counsel’s failure to [introduce the reports at trial], the results of the trial would have been 

different.” Id. 

(ii) Lee has also failed to show trial counsel was deficient in 
27

failing to review evidence about Chris’s threats toward McCollum. 

Lee contends that if counsel had properly reviewed the evidence, he 

would have introduced a police report from a July 6, 2016 incident 

between Chris and McCollum in which Chris got angry with 

McCollum, grabbed her, pushed her down, choked her, and then 

pointed a gun at her and said he “would kill her like he did the last 

b***h.” 

Lee has not established that trial counsel acted unreasonably 

by not introducing that report. To begin with, counsel was not asked 

at the motion for new trial hearing why he did not call Chris as a 

witness or about his reasoning in developing alternate suspects. Not 

securing trial counsel’s testimony on these points makes it “particularly difficult” for Lee to overcome the strong presumption that trial 

counsel’s actions were part of a deliberate trial strategy. Jones v. 

State, 296 Ga. 561, 567 (4) (769 SE2d 307) (2015).

In any event, the record offers a plausible strategic basis for 

not introducing this report in support of a theory that Chris committed the murders. At trial, counsel developed the theory that Taylor
28

committed the murders. Counsel got Taylor to admit that he had

lied to police and hospital staff about who shot him. In his closing, 

trial counsel argued that Taylor “lied to police and lied about what 

happened” and “lied through the whole thing.” And other evidence 

tended to make Taylor more attractive than Chris as an alternate 

suspect. Gillespie testified that Taylor called her on the night of the 

murders and whispered to her on the phone that “somebody” shot 

up Lee’s house, which counsel emphasized in his closing argument.

Finally, Gillespie provided an alibi for Chris, testifying that she was 

with Chris on the night of the murders until 1:00 a.m.—well after 

9:30 p.m., which time trial counsel argued was the likely time of 

death based on the evidence that the victims’ phones stopped showing activity around that time. Given this evidence, a reasonable attorney could have opted to advance Taylor as an alternate suspect 

rather than Chris, and he could have decided that introducing evidence that tended to inculpate Chris could muddle or weaken that 

defense. See Sullivan v. State, 308 Ga. 508, 511 (2) (a) (842 SE2d 5) 

(2020) (“A decision as to which defense witnesses to call is a matter 
29

of counsel’s trial strategy and tactics and will not support a claim of 

ineffective assistance of counsel unless it is so unreasonable that no 

competent attorney would have made the decision under the circumstances.” (cleaned up)); Brooks v. State, 309 Ga. 630, 637 (2) (847 

SE2d 555) (2020) (“An attorney’s decision about which defense to 

present is a question of trial strategy, and trial strategy, if reasonable, does not constitute ineffective assistance of counsel.” (citation 

and punctuation omitted)). In short, Lee has failed to establish that

not introducing this report was so unreasonable that no competent 

attorney would have made such a decision under the circumstances.

See Scott, 317 Ga. at 223 (2) (a).

(c) Lee contends his trial counsel provided ineffective assistance by failing to review evidence about Taylor’s shooting and, as a 

result, failing to impeach Brittany O’Neal or effectively cross-examine Taylor.

(i) At trial, O’Neal testified that Bowen revealed to her that Lee 

was abusive toward Bowen on several occasions. Bowen sent O’Neal 

photos of her bruises and cuts and called O’Neal after some of the
30

incidents, including the axe incident described in Division 1 (a).

O’Neal also testified that the day after Lee shot Taylor, Bowen called

her and told her that Taylor “was over at [Bowen’s] house and [Lee] 

rode by or something and he went crazy and shot – there was [sic] 

multiple gunshots fired and he had shot [Taylor] in the foot.”

O’Neal’s trial testimony ran contrary to her interview with the GBI 

shortly after the murders, during which she explained that she was 

“not familiar with an incident involving Joey Taylor and Wallace Lee 

at Bowen’s residence.” Lee tendered a report of O’Neal’s GBI interview at the motion for new trial hearing, and O’Neal testified that 

she did not recall initially denying knowledge of the incident but 

that she ultimately remembered Bowen sharing this with her because “after the initial shock of Lee murdering [her] friend, [she] did 

have some time to think and recollect her memories.” Lee contends 

that counsel should have impeached O’Neal with her prior inconsistent statement. In Lee’s view, O’Neal’s testimony was the only 

evidence corroborating Taylor’s statement that Lee shot him, so impeaching O’Neal would have made it much less likely that the jury 
31

would believe that shooting happened.

But even if counsel’s failure to impeach O’Neal was deficient, 

Lee fails to show that impeaching her “would have made any difference to the outcome of [his] trial.” Clark v. State, 307 Ga. 537, 542 

(2) (a) (837 SE2d 265) (2019). To begin with, it is not clear introducing the report to impeach O’Neal would have been effective: O’Neal 

explained at the motion for new trial hearing that “after the initial 

shock of Lee murdering [her] friend, [she] did have some time to 

think and recollect her memories.” In any event, O’Neal was not the 

only witness who testified that Taylor shot Lee: another witness testified that Lee told him that Taylor was shot in the “crossfire” between Lee and Bowen, Gillespie testified that Taylor told her that 

Lee shot him, and of course, Taylor himself told the jury that Lee 

shot him. Given that cumulative evidence, especially Taylor’s testimony—likely more compelling than Bowen’s hearsay—it is not 

likely that impeaching O’Neal would have changed the jury’s mind 

about whether Lee shot Taylor. See Clark, 307 Ga. at 542 (2) (a)

(holding that there was no reasonable probability that any 
32

additional impeachment of a witness “would have made any difference to the outcome” of the defendant’s trial because trial counsel 

had impeached the witness in other ways and another witness testified similarly about the incident) (citing McCoy v. State, 303 Ga. 

141, 143 (2) (810 SE2d 487) (2018) (concluding appellant failed to 

show prejudice because “even if trial counsel had engaged in additional impeachment . . . there were still two other eyewitnesses who 

knew [appellant], identified him as the shooter, and gave similar descriptions of how he shot the victim”)). So Lee has failed to establish 

prejudice.

(ii) Lee also contends that his counsel provided ineffective assistance by failing to “effectively” cross-examine Taylor about the 

day he was shot, his testimony that he “told everybody” Lee shot 

him, and his identification of Lee’s gun. On cross-examination, trial 

counsel asked Taylor about the day Taylor said he was shot by Lee. 

Taylor stated that it was around dusk when Lee showed up and

started shooting and that Taylor was “running in circles,” “jumping 

up and down,” and “freaking out.” Taylor also testified that he “lied 
33

to the police officer” at the hospital about who shot him because 

Bowen asked him to and “only corrected this lie” after learning about 

the murders two weeks later.

Lee has not shown that trial counsel’s cross-examination of 

Taylor was constitutionally deficient. “The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” Priester v. State, 317 Ga. 477, 

490 (5) (c) (893 SE2d 751) (2023) (citation and punctuation omitted).

Here, counsel cross-examined Taylor about the day he says Lee shot 

him and the circumstances of that encounter, and counsel elicited 

that Taylor lied to the police. Counsel then used that evidence in his 

closing argument, highlighting Taylor’s testimony that he was “running in circles” and “jumping up and down” to cast doubt on Taylor’s

ability to accurately identify the type of gun Lee could have used, 

particularly considering the firearms expert’s testimony that it 

would be difficult to identify this type of gun at night or at dusk, 

when the shooting occurred. See Washington v. State, 312 Ga. 495, 

503 (3) (b) (863 SE2d 109) (2021) (“[D]eficiency cannot be 
34

demonstrated by merely arguing that there is another, or even a better, way for counsel to have performed.” (citation and punctuation 

omitted)); Brown v. State, 303 Ga. 617, 621 (2) (b) (814 SE2d 364) 

(2018) (holding that trial counsel was not deficient in failing to crossexamine a witness about an issue when counsel did ask about that 

issue on cross-examination and the appellant made no argument 

about how the issue could have been better presented). This crossexamination and counsel’s use of it as part of Lee’s defense was not 

“so unreasonable that no competent attorney would have made them 

under similar circumstances,” Bonner v. State, 314 Ga. 472, 476 (2) 

(877 SE2d 588) (2022) (citation and punctuation omitted), so Lee has 

failed to show that counsel’s performance was deficient, and his ineffectiveness claim on this ground fails.

(d) Lee argues broadly that his trial counsel provided ineffective assistance by failing to “effectively” cross-examine the State’s 

witnesses about (i) the lack of physical evidence tying Lee to the 

crime scene, (ii) certain “deer cam” footage, and (iii) the State’s timeline of the night of the murders. 
35

(i) With respect to the failure to cross-examine witnesses sufficiently about the “lack of physical evidence,” Lee highlights the lack 

of shell casings found in Bowen’s yard, the lack of fingerprints recovered from the shell casings that were found at Lee’s home, tire 

tracks and footprints at the crime scene that did not match Lee or 

his truck, and the lack of gunpower residue or blood spatter on Lee.

But trial counsel’s choices about using this evidence were not unreasonable. After investigators testified about the lack of shell casings

found in Bowen’s yard and the lack of fingerprints on those found at 

the crime scene, counsel asked about this on cross-examination and 

brought it up in his closing argument. The jury heard by stipulation 

that the footprints and tire tracks from the crime scene did not 

match Lee or his truck. And a forensic pathologist testified that no 

gunpowder residue or blood or other DNA evidence was found on 

Lee, and counsel emphasized that testimony in his closing. Not

cross-examining the State witnesses further about these various 

points rather than emphasizing it in closing is just the kind of strategic decision that will not be considered deficient unless no 
36

competent attorney would have made it under the circumstances, 

and Lee has failed to make that showing here. See Bonner, 314 Ga. 

at 476 (2) (appellant failed to show deficient performance where he 

“failed to demonstrate how cross-examination of these witnesses 

would have been helpful to him”). 

(ii) As to the deer camera footage, trial counsel testified at the 

motion for new trial hearing that he recalled watching it but “did 

not see anything significant” or “useful,” on it. Appellate counsel attempted to introduce this footage with audio into evidence at the 

motion for new trial hearing, but the trial court ruled that it was not 

admissible because the authenticity of the audio was disputed. 

Without this footage in the record, Lee cannot establish how crossexamination about it could have helped his defense and therefore 

has not established that counsel’s performance was deficient. See 

Smith, 307 Ga. at 117-118 (6) (appellant’s burden to show error by 

the record); Bonner, 314 Ga. at 476 (2); Brown, 303 Ga. at 621 (2) 

(b).

(iii) Lee contends that trial counsel was deficient in failing to 
37

effectively cross-examine two sets of witnesses about the timeline of 

the night of the murders: the bonfire witnesses who saw Lee driving 

down the street, and a deputy who responded to a semi-truck that 

was stuck in a ditch on Lee’s street and, later, to Lee’s 911 call about 

the gunshots at his house. 

Lee has not shown how counsel’s cross-examination of either 

set of witnesses was so unreasonable that no competent counsel 

would have made the same decisions.

Regarding the deputy, counsel elicited from the deputy that he 

did not remember seeing Lee driving on Lee’s street close to where

Bowen lived when the deputy responded to the semi-truck accident 

at around 11:45 p.m. or midnight the night of the murders. Counsel 

emphasized that testimony in closing, and contrasted it with the 

bonfire witnesses’ testimony that Lee was seen driving on Lee’s 

street at around 11:30 p.m. So the record belies Lee’s argument that 

trial counsel “never connected the timeline” of the deputy’s testimony and the bonfire witnesses’ testimony. Lee makes no further 

argument as to what counsel should have elicited on cross-
38

examination of the deputy that would have been helpful to his defense, so he has not established that trial counsel’s performance was 

deficient. See Brown, 303 Ga. at 621 (2) (b).

As for the bonfire witnesses, counsel cross-examined the witnesses about their ability to identify Lee and elicited that at least 

some of their identifications were uncertain. And as noted above, 

counsel highlighted this timeline in his closing argument, contrasting the bonfire witnesses’ sighting of Lee at around 11:30 p.m. 

with the deputy’s testimony that he did not see Lee on Bowen’s road 

at around 11:45 p.m. or midnight. In the same part of his closing, 

counsel alluded to Agent Lott’s testimony that the victim’s cell 

phones showed no activity after 9:33 p.m. Counsel argued that the 

relevant timeframe for the murders was therefore around 9:30 p.m., 

not 11:30 p.m. 

Given counsel’s strategy of downplaying the bonfire witnesses’ 

testimony—and the fact that Lee has not shown that any of the bonfire witnesses would have testified any differently under further 

cross-examination—Lee has not established that counsel’s cross-
39

examination of those witnesses was constitutionally deficient. See 

Priester, 317 Ga. at 490 (5) (c) (appellant failed to show deficiency 

where he could not show that the witness “would have given a response helpful to” the appellant on cross-examination) (citing Bonner, 314 Ga. at 476 (2)). Thus, Lee fails to show counsel was deficient 

and his ineffectiveness claim on this ground fails. 

(e) Lee contends that his trial counsel provided ineffective assistance by failing to object to the admission of Bowen’s and Lee’s 

text messages. He contends that an objection was warranted because the State’s demonstrative aid lacked a foundation and because 

GBI Agent Lott was not qualified as an expert.

At trial, the State introduced Bowen’s and Lee’s phone records 

through the testimony of Agent Lott. Agent Lott testified to the 

GBI’s method of extracting cell phone data using a software called 

Cellebrite and explained that he conducted the Cellebrite extraction 

of Lee’s phone. Agent Lott also testified about Lee’s and Bowen’s cell 

phone records, which were received from Verizon Wireless and identified discrepancies between the records and the extracted data
40

showing that Lee had likely deleted the texts between himself and 

Bowen.

At the motion for new trial hearing, trial counsel was not asked 

why he did not object to the admission of the text messages through 

the Verizon records or the Cellebrite data. But the Verizon records 

underlying Agent Lott’s testimony were authenticated by the custodian of the records. And regardless of whether the Cellebrite data 

was properly authenticated, Lee fails to show that the State could 

not have provided further foundation to support the admission of the 

text messages had trial counsel objected. See Vivian v. State, 312 

Ga. 268, 273-274 (2) (a) (862 SE2d 138) (2021) (appellant’s ineffectiveness claim failed where he did “not argue, much less demonstrate, that the State could not have provided additional foundational support for the admission of the cell phones if his counsel had 

objected”). See also id. at 273 (2) (a) (“[R]efraining from objecting to 

foundational matters that can be readily cured is not an unreasonable strategy.” (citation and punctuation omitted)).

Further, Lee has not overcome the presumption that counsel’s 
41

decision not to object to Agent Lott’s testimony was strategic. As 

summarized in Division 1 (b) above, Agent Lott testified at trial that 

Lee had sent Bowen threatening text messages, including on the day 

of the murders, and had called her from a hidden number. Agent 

Lott also testified that Lee texted Bowen asking where she was on 

the night of the murders at 10:18 p.m. and 10:21 p.m. and that the 

victims’ phones stopped showing activity after around 9:30 p.m. In 

closing, trial counsel relied on Agent Lott’s testimony that the 

phones stopped showing activity around 9:30 p.m. to argue that the 

relevant time frame for the murders was 9:30 p.m., not 11:30 p.m. 

Thus, choosing not to object was consistent with counsel’s decision 

to highlight Agent Lott’s testimony in support of his argument that 

the relevant time frame was 9:30 p.m. Accordingly, Lee has offered 

no evidence to overcome the presumption that trial counsel made a 

reasoned strategic decision not to object to this evidence. Vivian, 312 

Ga. at 273 (2) (a) (counsel’s decisions are presumed to be strategic if 

not patently unreasonable and no evidence is presented to the contrary). So Lee fails to show deficiency and his ineffectiveness claim 
42

on this ground fails.

(f) Lee contends that his trial counsel provided ineffective assistance by failing to renew his motion for change of venue. Lee contends the jury selection process showed actual prejudice, rendering 

a fair trial impossible, because this was a “close-knit community,” 

and nine potential jurors “were somehow connected to” Lee, Bowen, 

Harden, their families, or the Assistant District Attorney. Lee also 

contends that the fact that the jury returned a verdict within thirty

minutes further supports his theory that the jury was “influenced 

by their personal relationships and the pre-trial publicity.” 

“To prevail on a motion to change venue, a defendant must 

show either that (1) the setting of the trial was inherently prejudicial or (2) the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” Mims v. State, 304 Ga. 

851, 858-859 (2) (c) (823 SE2d 325) (2019). Lee does not argue that 

the setting of the trial was inherently prejudicial. Instead, he contends that the jury selection process showed actual prejudice because nine of the potential jurors knew Lee, Bowen, Harden, their 
43

families, or the district attorney. But the number of jurors who personally know or know of people involved in the case does not alone 

establish actual prejudice. See Moss v. State, 305 Ga. 878, 881 (2) 

(828 SE2d 309) (2019). Instead, the key question here is whether 

these jurors “could lay aside their opinions and render a verdict 

based on the evidence.” Id. (citation and punctuation omitted). “Actual prejudice is thus shown by the excusal percentage — the number of potential jurors excluded for cause based on bias compared to 

the total number of potential jurors questioned.” Id.

Here, the excusal percentage does not show actual prejudice. 

Of the forty-eight potential jurors, only four were excused for cause. 

So even including reasons aside from bias, the excusal rate in Lee’s 

case was less than nine percent, well below what this Court has considered “actual prejudice.” See, e.g., Moss, 305 Ga. at 881 (2) (excusal 

rate of twenty-three percent did not indicate actual prejudice in jury 

selection); Chancey v. State, 256 Ga. 415, 432 (5) (C) (349 SE2d 717)

(1986) (excusal rate of forty percent did not indicate actual prejudice). Moreover, none of the potential jurors who said that they had 
44

heard of the case or knew of people involved said they were unable 

to be impartial. See Overstreet v. State, 312 Ga. 565, 579 (3) (b) (ii) 

(864 SE2d 14) (2021) (holding appellant presented no evidence suggesting actual prejudice where “although each prospective juror had 

heard about the case in some way prior to jury selection, each of the 

jurors who were ultimately empaneled affirmed during voir dire that 

they could set aside what they had learned about the case outside 

the courtroom and render a verdict based solely on the evidence presented” and “[t]he only juror who expressed any sort of ‘fixed bias’ 

regarding the case was excused for cause”). Absent evidence of actual prejudice, a renewed motion for change of venue would have 

been meritless. Because counsel cannot be deficient for failing to file 

a meritless motion, see Mims, 304 Ga. at 858 (2) (c), Lee’s ineffectiveness claim fails on this ground. 

(g) Lee next contends that his trial counsel provided ineffective 

assistance by failing to provide Lee with all the discovery before 

trial. Lee claims that before trial, counsel did not provide him (1) 

photos of the crime scene, (2) deer camera video with audio, (3) cell 
45

phone records, or (4) incident reports between Bowen and Chris and 

between Bowen and Lee.

At the motion for new trial hearing, trial counsel explained 

that he met with Lee before trial “[a]t least 10” times, “probably 

more than that.” When asked whether he gave Lee all the discovery, 

trial counsel stated that he “gave [Lee] everything [he] had,” including bringing a computer to play videotaped interviews for him at the 

jail. As for the phone records, trial counsel explained that because of 

the passage of time since trial, he only recalled that “[w]e went over 

a lot of records . . . . I don’t know if specifically we went over [the

Verizon records].” And trial counsel testified that he could not specifically recall whether he played the deer camera video for Lee and 

could not recall whether he ever received any deer camera audio

from the State. 

“[T]here is no per se rule requiring counsel for criminal defendants to provide them with copies of all discovery materials.” Shank 

v. State, 290 Ga. 844, 848 (5) (b) (725 SE2d 246) (2012). And Lee has 

not explained “why, in his case, a decision not to provide him with 
46

certain materials fell outside the bounds of reasonable professional 

conduct,” so he has not shown that trial counsel’s performance was 

deficient. Id. Thus, Lee’s ineffectiveness claim on this ground fails. 

(h) Finally, Lee contends that the cumulative prejudicial effect 

of trial counsel’s errors entitles him to a new trial. We have assumed 

Lee’s trial counsel performed deficiently by (1) failing to cross-examine and impeach O’Neal, and (2) failing to introduce the GBI report 

from Chris’s interview and the domestic violence reports of incidents

between Chris and Bowen. But these cumulative errors do not entitle Lee to a new trial unless “actual prejudice resulted.” Schofield v. 

Holsey, 281 Ga. 809, 811 (II) & n.1 (642 SE2d 56) (2007), overruled 

on other grounds by State v. Lane, 308 Ga. 10, 23 (838 SE2d 808) 

(2020). And as discussed above, counsel’s assumed failures are unlikely to have affected the outcome at trial. As to O’Neal, it is unlikely that any impeachment of her testimony about Lee shooting 

Taylor would have affected the outcome of trial, since several other 

witnesses testified that Lee shot Taylor. And the failure to introduce 

the GBI interview report and the domestic violence reports had very 
47

little prejudicial effect, even considered together, because they each 

concern evidence that the jury still heard. For example, the jury 

heard about Bowen and Chris’s abusive relationship and about 

Chris’s whereabouts on the night of the murders through testimony 

from other witnesses. And plainly, the omission of Chris’s denial of 

his violence toward Bowen and his recollection of Bowen telling him 

that Lee had abused her was not exculpatory and had no prejudicial 

effect. Given the relatively minor impact of counsel’s assumed errors, Lee has not shown that the cumulative prejudice from those 

assumed errors likely affected the outcome of Lee’s trial. This claim 

thus fails.

Judgment affirmed. All the Justices concur.