In the Supreme Court of Georgia

Decided: May 3, 2022

S22A0317. BUTLER v. THE STATE.

 WARREN, Justice.

After a bench trial that was held in March 2013, Cory Frayana 

Butler was convicted of malice murder and other crimes for his 

involvement in a home invasion and beatings that resulted in the 

death of Epsie Ewing (“Mrs. Ewing”) and injury of her husband, C.F. 

Ewing (“Mr. Ewing”).1 Butler raises four claims of error on appeal: 

 1 Mr. and Mrs. Ewing were beaten on May 21, 2009, and Mrs. Ewing died 

on June 23, 2009. On August 21, 2009, a Walton County grand jury indicted 

Butler for malice murder, three counts of felony murder, one count of 

aggravated battery, two counts of aggravated assault, two counts of false 

imprisonment, one count of armed robbery, one count of burglary, two counts 

of possession of a firearm during the commission of a felony, and one count of 

possession of a firearm by a convicted felon. The armed robbery and burglary 

counts and one each of the aggravated assault, false imprisonment, and 

possession of a firearm during the commission of a felony counts were specific 

to crimes committed against Mr. Ewing. The State initially filed a notice of 

intent to seek the death penalty, but after negotiations with Butler, entered 

into a consent agreement whereby Butler agreed to a bench trial and the State 

agreed to withdraw its notice of intent. After a bench trial from March 13 to 
2

that (1) the evidence presented at trial was insufficient to support 

his conviction for malice murder; (2) the trial court did not determine

whether Butler knowingly and intelligently waived his right to a 

jury trial; (3) Butler received constitutionally ineffective assistance 

of counsel; and (4) the trial court committed a sentencing error. For 

the reasons explained below, we affirm. 

 

18, 2013, the trial court found Butler guilty on all counts. On March 26, 2013, 

the trial court sentenced Butler to life in prison without the possibility of parole 

for malice murder, ten concurrent years in prison for one of the falseimprisonment convictions, a concurrent sentence of life with the possibility of 

parole for armed robbery, five consecutive years in prison for one of the

convictions for possession of a firearm during the commission of a felony, ten 

consecutive years in prison for the other false-imprisonment conviction, five 

consecutive years in prison for the other conviction for possession of a firearm 

during the commission of a felony, and five consecutive years in prison for 

possession of a firearm by a convicted felon. The trial court merged, for 

sentencing purposes, the aggravated battery count and one of the aggravated 

assault counts into the malice murder conviction, and the other aggravated 

assault count and the burglary count into the armed robbery conviction. The 

State has not challenged the purported merger of the burglary count into the 

armed robbery conviction, and we decline to address that issue sua sponte. See 

Dixon v. State, 302 Ga. 691, 696-698 (808 SE2d 696) (2017). And although the 

court also purported to merge the three felony murder counts into the malice 

murder conviction, those counts were actually vacated by operation of law. See 

Malcolm v. State, 263 Ga. 369, 372 (434 SE2d 479) (1993). Butler filed, through 

trial counsel, a timely motion for new trial on April 24, 2013, which he later 

amended. On May 13, 2019, after a hearing on Butler’s motion for new trial, 

the trial court denied Butler’s motion as amended. On June 10, 2019, Butler 

filed a timely notice of appeal, which he later amended. The case was docketed 

in this Court to the term beginning in December 2021 and submitted for a 

decision on the briefs.
3

1. The evidence presented at Butler’s trial showed the 

following. Angela Jackson and Mr. Ewing had been engaged in an 

extramarital affair since 1999, and Ewing was informally giving 

Jackson $50 a month for a child she said was his. Ewing previously 

had told Jackson to stop coming to his house, but on May 17, 2009, 

Jackson, Ykescha “Missy” Walton (Jackson’s niece), and Butler 

drove to the Ewings’ house so that Jackson could “pick up her child 

support money” from Mr. Ewing.2 After arriving at the Ewings’

house, Jackson sent Butler to the front door to pick up the money. 

Butler walked up to the door, expressed interest in purchasing Mr. 

Ewing’s red truck, and requested $50 for Jackson. After speaking 

for a few minutes, Mr. Ewing gave Butler $50 in a money clip, and 

Butler returned to Walton’s car to hand the money to Jackson. 

Jackson later testified that while driving back from the Ewings’ 

house, Butler made a comment pertaining to how much money Mr. 

Ewing appeared to have and said “if y’all wouldn’t have been in the 

 2 Mr. Ewing, Jackson, and Walton all positively identified Butler as the 

person who accompanied the women to the Ewings’ house that day.
4

car, I would have busted his head down to the white meat.”

Four days later, on May 21 at around 12:00 or 1:00 p.m., Butler 

returned to the Ewings’ house with J.J. Blackwell and Barry Partee. 

At trial, Mr. Ewing, who had positively identified Butler, Blackwell, 

and Partee in photographic lineups, testified as follows. After 

parking in the Ewings’ driveway, Butler and Blackwell exited the 

car, approached Mr. Ewing, and again expressed interest in 

purchasing his red truck. Mr. Ewing and Butler then went for a test 

drive around the block while Blackwell and Partee followed Mr. 

Ewing’s truck in their car. Upon returning to the house, Butler said 

“don’t try nothing [because] I got a gun on you.” Butler then exited 

the truck and began “pistol whipping” Mr. Ewing and beating him 

on the head with a pistol. Butler “knocked” Mr. Ewing through the 

back door of the Ewings’ house, and Blackwell and Partee followed 

them inside.

In the utility room, Butler and Blackwell “started beating” Mr. 

Ewing in the face and head, causing him to fall. Butler also hit Mrs. 

Ewing, who was standing in the utility room, in the forehead with 
5

the pistol. Blackwell then grabbed Mr. Ewing in a “headlock” and 

dragged him through the kitchen and into the dining room. By that 

point, Butler had moved Mrs. Ewing onto the couch in the dining 

room. Mr. Ewing later explained that he assumed that Mrs. Ewing

had been beaten with their walking stick, which he saw lying broken 

on the ground in front of her as she sat screaming on the couch, but 

that he did not actually see this occur. Mrs. Ewing said “[h]oney, 

just give them anything they want,” and Mr. Ewing pleaded with

“them” to stop hitting his wife. Then Butler, Blackwell, and Partee

left the house through the back door, taking Mr. Ewing’s wallet with 

them. Before leaving, Butler threatened Mr. Ewing, “if you call the 

law, I’ll come back and kill both of you.” At trial, Mr. Ewing

positively identified Butler as one of his attackers.3

After Butler, Blackwell, and Partee left the Ewings’ house,4

 3 After Mr. Ewing testified that Butler “might have had” a beard on the 

day of the attack, he conceded on cross-examination that on the day of the 

crimes, he told an investigator that none of the assailants had facial hair. 

4 A neighbor saw two men leave the back door of the Ewings’ house and 

enter a car with a third person at around 12:30 p.m. that day. That neighbor 
6

Mrs. Ewing was “bleeding all over, her face and hands, her head.” 

The Ewings’ walking stick was broken and was lying on the floor 

next to the couch. At Mr. Ewing’s request, a neighbor called 911. A 

few minutes later, police officers arrived and found both Mr. and 

Mrs. Ewing “covered in blood.”

Mrs. Ewing was flown to the Atlanta Medical Center, where 

she was admitted in critical condition and in a coma. A physical 

exam and CT scans were performed and showed that she had large 

cuts on her scalp, fractured facial bones, swelling and bruises on her 

face, and fractures in both arms. She died on June 23. After 

performing an autopsy, Dr. Lora Darrisaw of the Georgia Bureau of 

Investigation (“GBI”), who testified at trial, determined that the 

cause of death was multiple-system organ failure due to “poor

circulation [and] poor oxygenation” following the “blunt force 

 

identified Butler in a photographic lineup as one of the men she saw, and she 

also made an in-court identification of Butler at trial. On cross-examination, 

she testified that she did not see facial hair on the man she later identified as 

Butler. A passerby testified at trial that he saw three men leaving the Ewings’ 

house and that one of them appeared to be shoving a gun in his pocket, but he 

was unable to identify Butler in a photographic lineup.
7

traumatic injuries” that were inflicted on Mrs. Ewing on May 21. 

Dr. Darrisaw certified the manner of death as homicide. Dr. James 

Stevens, who treated Mrs. Ewing after the attack, also testified at 

trial and explained that blunt force trauma caused Mrs. Ewing’s

death, even though her preexisting conditions of diabetes, 

hypertension, congestive heart failure, and deep-vein thrombosis 

likely contributed to it.

Walton testified at trial that after Jackson told her about the 

events of May 21, Walton asked Butler if he had beaten Mrs. Ewing,

and Butler responded that he had not. Butler then asked Walton 

“did [she] love [her] auntie,” referring to Jackson, and “how would 

you feel if she was dead?” Walton interpreted this to mean that 

Butler “might do something” to Jackson “like kill her or something” 

if she talked about the events of May 21 or Butler’s alleged 

involvement. Nevertheless, Walton discussed the matter with a 

friend, who in turn called the City of Monroe Police Department and 

told police to speak with Jackson about the matter. An investigation 

led officers to obtain an arrest warrant and issue a “be on the 
8

lookout” (“BOLO”) for Butler in connection with the home invasion 

and beatings.

On May 26, a Georgia State Patrol trooper—who was looking 

for Butler because of the BOLO—recognized Butler and began 

questioning him. Butler provided a false name and then fled on foot 

before being apprehended. Butler was arrested, and when a

detective interviewed him, he denied any involvement in the 

Ewings’ home invasion and beatings, claiming that “he robs rich 

people” but that he “doesn’t rob poor people.” He also stated that a 

man named Richard Deloatch from Monroe was the culprit. But 

after the police spent a week searching for Deloatch, they concluded 

that “there appeared to be no such person.”

2. Butler contends that the evidence was insufficient to support 

his conviction for malice murder because even if there was evidence 

that he struck Mrs. Ewing over the head once with a pistol, the 

evidence showed that Blackwell dealt the “fatal blows” to Mrs. 
9

Ewing.5 He further claims that Mrs. Ewing died weeks after the 

home invasion and beatings because of preexisting medical 

conditions that were aggravated by Blackwell’s assault. According 

to Butler, the State did not present evidence that Butler was a party 

to Blackwell’s conduct, and Blackwell’s intent cannot be imputed to 

Butler as a result. 

When evaluating a challenge to the sufficiency of the evidence

as a matter of constitutional due process, we view the evidence 

presented at trial in the light most favorable to the verdicts and ask 

whether any rational trier of fact could have found the defendant 

guilty beyond a reasonable doubt of the crimes of which he was 

convicted. See Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) 

(2018) (citing Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt 

2781, 61 LE2d 560) (1979)). We leave to the trier of fact “the 

resolution of conflicts or inconsistencies in the evidence, credibility 

of witnesses, and reasonable inferences to be derived from the facts,” 

 5 Butler does not challenge the sufficiency of the evidence supporting his 

other convictions.
10

Smith v. State, 308 Ga. 81, 84 (839 SE2d 630) (2020), and we do not 

“reweigh the evidence,” Ivey v. State, 305 Ga. 156, 159 (824 SE2d 

242) (2019) (citation and punctuation omitted).

As a matter of Georgia statutory law, “[e]very person 

concerned in the commission of a crime is a party thereto and may 

be charged with and convicted of commission of the crime.” OCGA 

§ 16-2-20 (a). Conviction as a party to a crime requires proof of a 

common criminal intent, which a trier of fact may infer from 

“presence, companionship, and conduct before, during and after the 

offense.” McGruder v. State, 303 Ga. 588, 591 (814 SE2d 293) (2018) 

(citation and punctuation omitted). See also Felts v. State, 311 Ga. 

547, 552 (858 SE2d 708) (2021). And “all the participants in a plan 

to rob are criminally responsible for the act of each committed in the 

execution of the plan and which may be said to be a probable 

consequence of the unlawful design,” Williams v. State, 304 Ga. 658, 

662 (821 SE2d 351) (2018) (citation and punctuation omitted), a 

principle we have specifically held applies to murders committed 

during the commission of “a crime that foreseeably [leads] to 
11

murder”—such as armed robbery—perpetrated by a group that 

shares a common criminal intent. Felts, 311 Ga. at 552. See also 

Moore v. State, 311 Ga. 506, 509 (858 SE2d 676) (2021). 

Moreover, “we have long held, in numerous cases, that 

proximate causation is the test for malice murder.” State v. Jackson, 

287 Ga. 646, 649 (697 SE2d 757) (2010) (collecting cases). See also 

Stribling v. State, 304 Ga. 250, 252-254 (818 SE2d 563) (2018) 

(applying proximate cause standard in determining that evidence 

was sufficient to support a malice murder conviction). An injury is 

the proximate cause of death when “(1) the injury itself constituted

the sole proximate cause of the death; or . . . (2) the injury directly 

and materially contributed to the happening of a subsequent 

accruing immediate cause of the death; or . . . (3) the injury 

materially accelerated the death, although proximately occasioned 

by a pre-existing cause.” Stribling, 304 Ga. at 253 (citation and 

punctuation omitted). See also Clarke v. State, 292 Ga. 305, 306 

(737 SE2d 575) (2013) (evidence that defendant inflicted blunt-force 

trauma on elderly victim’s head sufficiently supported malice 
12

murder conviction, despite evidence that other conditions related to 

the victim’s advanced age also contributed to death). 

Here, the evidence was sufficient to convict Butler as a matter 

of constitutional due process and as a matter of Georgia statutory 

law. Among other things, the evidence introduced at trial included 

testimony from Mr. Ewing, who survived the home invasion that 

resulted in the death of his wife, Mrs. Ewing, and who positively 

identified Butler as one of their assailants. Mr. Ewing testified that 

he saw Butler pistol-whip Mrs. Ewing on the head. But he also 

testified that he pleaded with the group of assailants, which he 

referenced as “them,” to stop hitting Mrs. Ewing. And based on that 

testimony and other evidence presented at trial, the jury was 

authorized to infer that Butler—whom Mr. Ewing identified from a 

photographic lineup and at trial as one of the men who attacked Mrs. 

Ewing and him—attacked Mrs. Ewing beyond the pistol-whip about 

which Mr. Ewing separately testified. According to Mr. Ewing, the 

assailants’ additional assault against Mrs. Ewing left her beaten 

and bloodied. Other evidence presented at trial included Butler’s 
13

comments to Jackson and Walton days before the home invasion 

about Mr. Ewing’s cash and “bust[ing] his head down to the white 

meat” if the women were not there; a neighbor’s positive 

identification of Butler as one of the men she saw leaving the 

Ewings’ house around the time that the home invasion and beatings

ended; Butler’s threat to kill the Ewings as he left their house after 

the home invasion; Butler’s veiled threat against Walton; and 

Butler’s flight from law enforcement. 

And although Butler points to Dr. Stevens as supporting 

Butler’s defense theory that he did not cause Mrs. Ewing’s death, 

Dr. Stevens’ testimony undermines, rather than supports, Butler’s 

claim. That is because Dr. Stevens testified that it was “likely” that

Mrs. Ewing’s preexisting medical conditions, “combined” with the 

blunt force trauma she suffered during the assault, caused her 

death, thus allowing the trial court, as the trier of fact, to conclude 

that the injuries from Mrs. Ewing’s beating “materially accelerated 

[her] death,” Jackson, 287 Ga. at 649, and thus proximately caused

it. Specifically, the court heard that Mrs. Ewing was admitted to 
14

the hospital in critical condition after the attack; Dr. Stevens

acknowledged Mrs. Ewing’s preexisting medical conditions and 

nonetheless testified that Mrs. Ewing would not have died “on that 

day” without the blunt force trauma she suffered; and Dr. Darrisaw

certified Mrs. Ewing’s manner of death as a homicide. In sum, the 

evidence presented at trial and recounted in part above authorized

a rational trier of fact to conclude beyond a reasonable doubt that 

Butler was guilty of the crime of malice murder for which he was 

convicted, and that he was at least a party to that crime. See 

Jackson, 443 U.S. at 319. See also OCGA § 16-2-20. 

3. Butler contends that his right to a jury trial under the Sixth 

Amendment to the United States Constitution was violated because

the trial court “never questioned [him] to determine whether he

knowingly and intelligently waive[d] his right to a jury trial.” As 

explained below, the record belies that argument and this 

enumeration of error fails.

“When a defendant seeks to waive his or her right to a jury 

trial, a trial court should ask the defendant sufficient questions on 
15

the record so that the court can ensure the defendant’s waiver is 

knowing, voluntary, and intelligent.” Agee v. State, 311 Ga. 340, 

343-344 (857 SE2d 642) (2021) (citation and punctuation omitted). 

“The constitutional right to a jury trial may be waived only if the 

State proves beyond a reasonable doubt that a defendant did so 

knowingly, voluntarily, and intelligently.” See id. at 343 (citation 

omitted). This burden can be met by a “showing on the record that 

the defendant was cognizant of the right being waived.” Id. “We 

review a trial court’s acceptance of a waiver of a constitutional right 

for clear error.” Id. at 344. 

Here, the record shows that the State initially sought the death 

penalty in this case, filing a notice of intent (and later an amended 

notice) to seek the death penalty. On March 13, 2013, Butler and

the State entered into a consent agreement, signed by both parties, 

whereby the State withdrew its notice of intent to seek the death 

penalty and Butler waived his right to a jury trial. The consent 

agreement expressly provided that Butler “does hereby waive trial 

by jury on the charges in [this] case and consents to be tried by the 
16

Court without a jury.”

The parties presented the trial court with the consent 

agreement during a pretrial motions hearing held that same 

morning. Both the State and Butler’s counsel verbally agreed to 

proceed without a jury. The trial court then asked a series of 

questions to determine whether Butler “expressly, intelligently and 

personally participate[d] in the waiver of his right to a jury trial.” 

After affirming that Butler would provide truthful answers to its 

questions, the trial court had the following exchange with Butler:

THE COURT: That’s good. Now, Mr. Butler, you signed 

this consent agreement between the State of Georgia and 

the accused to proceed under Senate Bill Number 13. It 

includes, but [is] not limited to, the waiver of the jury 

trial. Did your attorney explain to you everything that’s 

in this consent agreement?

THE DEFENDANT: Yes, sir.

THE COURT Did you understand everything in this 

consent agreement?

THE DEFENDANT: I mean, I understand according to 

how they explained it to me, yes.

THE COURT: Well --
17

THE DEFENDANT: Yes, sir.

THE COURT: Okay. So they explained everything to you 

to the best of their ability . . . about waiving a jury trial. 

Do you want to waive a jury trial?

THE DEFENDANT: Yes, sir.

THE COURT: And you understand we’re here today and 

we have jurors back there ready to be picked to have a 

jury trial in this matter? Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And if you want a jury trial, it’s your 

constitutional right to have a jury trial?

THE DEFENDANT: Yes, sir.

THE COURT: But if you want to consent to not have a 

jury trial, if you do that, expressly, intelligently and 

personally make a decision not to have a jury trial, then 

you have that right also?

THE DEFENDANT: Yes, sir.

THE COURT: Do you want to waive a jury trial and 

proceed without a jury here today?

THE DEFENDANT: Yes, sir.

THE COURT: And that’s after your attorneys have 

explained to you all the ramifications, the benefits and 

drawbacks of waiving a jury trial; is that correct?
18

THE DEFENDANT: They explained to me, I guess, it 

would be in my best interest to waive the jury trial and 

proceed with a bench trial.

THE COURT: All right. And after listening to them, do 

you feel like it’s in your best interest to proceed without a 

jury trial?

THE DEFENDANT: Yes, sir.

THE COURT: All right. I find that the defendant has 

expressly, intelligently and personally participated in the 

waiver of his jury trial.

Later that afternoon, immediately prior to the start of the

bench trial, Butler’s attorney stated that “Mr. Butler just wanted me 

to put on the record that he is absolutely on board” with a bench 

trial. Butler again confirmed on the record that he agreed. 

Contrary to Butler’s claim on appeal, the record shows that the 

trial court repeatedly inquired about whether Butler had been 

informed about and understood his right to a jury trial and that he 

was choosing to waive it, that Butler stated he did so because he 

believed it was in his best interest, and that both the trial court and 

Butler confirmed that Butler wanted a bench trial. The trial court 

did not err, let alone clearly err, by finding that Butler had 
19

“knowingly, voluntarily, and intelligently” waived his right to a jury 

trial. See Agee, 311 Ga. at 344-345.

4. Butler contends that his trial counsel provided ineffective 

assistance under the Sixth Amendment to the United States 

Constitution. But for the reasons explained below, his claims fail. 

To prevail on a claim of ineffective assistance of counsel, a 

defendant generally must show that counsel’s performance was 

deficient and that the deficient performance resulted in prejudice to 

the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 

(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 

356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a 

defendant must demonstrate that his attorney “performed at trial in 

an objectively unreasonable way considering all the circumstances 

and in the light of prevailing professional norms.” Romer v. State, 

293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 

U.S. at 687-688. Moreover, “[t]rial counsel’s decisions relating to 

strategy and tactics are not judged by hindsight.” Jones v. State, 

296 Ga. 561, 567 (769 SE2d 307) (2015). To satisfy the prejudice 
20

prong, a defendant must establish a reasonable probability that, in 

the absence of counsel’s deficient performance, the result of the trial 

would have been different. See Strickland, 466 U.S. at 694. “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.” Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 

801) (2010).

(a) Butler contends that he waived his right to a jury trial in 

part because of his trial counsel’s belief that co-defendant Partee 

was going to testify against Butler, and implies that his trial counsel 

performed deficiently because one predicate for counsel’s advice to 

agree to a bench trial—that Partee was going to testify—did not 

materialize. Specifically, when Partee was called to testify at 

Butler’s trial, Partee testified that he felt “pressured” to plead guilty, 

that what he had agreed to testify about as part of his plea 

agreement “wasn’t true,” and that he wanted a jury trial in his case

instead of pleading guilty. As a result, the trial court excused Partee 

from the witness stand and the State called its next witness. 
21

To the extent Butler argues that his trial counsel was deficient 

for advising him to waive his right to a jury trial, the reasonableness 

of strategic decisions of counsel—in this case, whether to advise his 

client to waive his right to a jury trial—are to be “examined from 

counsel’s perspective at the time of trial and under the particular 

circumstances of the case.” Taylor v. State, 312 Ga. 1, 15 (860 SE2d 

470) (2021) (citation and punctuation omitted). See also Ford v. 

Tate, 307 Ga. 383, 422 (835 SE2d 198) (2019). And here, the record 

shows that there were multiple strategic reasons that could have 

supported counsel’s advice to choose a bench trial. To begin, trial 

counsel testified at the motion for new trial hearing that at the time

he advised Butler to enter the consent agreement with the State to 

hold a bench trial, Partee had agreed to testify against Butler as a 

part of Partee’s plea deal and counsel did not want a jury to hear 

Partee’s testimony. But counsel also testified that one of his 

primary objectives in negotiating with the State was to convince the 

State to withdraw its notice of intent to seek the death penalty, 

which it did when Butler entered into the consent agreement and 
22

agreed to have a bench trial instead of a jury trial. Moreover, in 

testifying about why he advised Butler to waive his right to a jury 

trial, trial counsel also affirmed that Butler’s “overall demeanor” 

caused counsel some “trepidation” about “the impression [ ] Butler 

would make to a jury.” Especially considering that “[t]rial counsel’s 

decisions relating to strategy and tactics are not judged by 

hindsight,” Jones, 296 Ga. at 567, we cannot say that any of these 

reasons were “objectively unreasonable . . . considering all the 

circumstances and in the light of prevailing professional norms.” 

Romer, 293 Ga. at 344; Strickland, 466 U.S. at 687-688. Trial 

counsel’s performance therefore was not deficient.

(b) In a related argument, Butler contends that his trial 

counsel performed deficiently by failing to call Partee as a witness 

after Partee’s recantation. Butler characterizes not calling Partee 

as a witness as a failure to “present potentially exculpatory 

evidence.” 

To begin, it is well settled that the determination of which 

witnesses to call is a “matter[ ] of trial strategy and tactics, and such 
23

strategic and tactical decisions do not amount to deficient 

performance unless they are so unreasonable that no competent 

attorney would have made them under similar circumstances.” 

Roseboro v. State, 308 Ga. 428, 437 (841 SE2d 706) (2020) (citation 

and punctuation omitted). But even if we were to assume, for 

purposes of argument, that trial counsel’s decision not to call Partee 

to testify was unreasonable, Butler did not call Partee to testify at 

the motion for new trial hearing or otherwise establish what Partee 

would have testified about had he been called as a witness at trial. 

As a result, Butler’s claim relies on speculation about what Partee 

would have testified about after he unexpectedly backed out of his

plea deal, and Butler cannot meet his burden of proving that he was 

prejudiced by the failure to call Partee as a witness. See Alexander 

v. State, Case No. S21G0112, 2022 WL 779597, at *9, __ Ga. __, __ 

(__ SE2d __) (decided Mar. 15, 2022) (“[W]e routinely conclude that 

such speculation is insufficient to establish prejudice in a claim of 

ineffective assistance of counsel.”); Harris v. State, 304 Ga. 652, 654-

655 (821 SE2d 346) (2018) (defendant failed to prove he was 
24

prejudiced by counsel’s failure to call trial witnesses or elicit certain 

testimony because defendant did not provide competent evidence of 

what their testimony would be). Having failed to show any prejudice 

from counsel’s alleged deficiency, this claim of ineffective assistance 

fails.

(c) Butler also contends that trial counsel performed deficiently 

“in his presentation of [ ] Butler’s defense,” specifically by arguing 

at trial that Butler was falsely identified as being part of the group 

of men who killed Mrs. Ewing, rather than arguing that Butler was 

merely present but not a party to the crime of murder because 

Blackwell (not Butler) dealt the blows that ultimately killed Mrs. 

Ewing.

“An attorney’s decision about which defense to present is a 

question of trial strategy,” and “unless the choice of strategy is 

objectively unreasonable, such that no competent trial counsel 

would have pursued such a course, we will not second-guess 

counsel’s decisions in this regard.” Anthony v. State, 311 Ga. 293, 

298 (857 SE2d 682) (2021) (citation and punctuation omitted). 
25

Moreover, “[a]n attorney’s decision about which defense to present 

is a question of trial strategy and will generally be considered 

reasonable if supported by evidence in the record.” Wilson v. State,

Case No. S22A0005, 2022 WL 451560, at *3, __ Ga. __, __ (869 SE2d 

384) (decided Feb. 15, 2022). See also Hendrix v. State, 298 Ga. 60, 

63 (779 SE2d 322) (2015) (holding that trial counsel’s election to 

pursue misidentification over self-defense was objectively 

reasonable). 

Here, the record shows that certain aspects of the evidence 

presented at trial supported trial counsel’s false identification 

argument. For example, one eyewitness failed to identify Butler 

from a photographic lineup, and there were apparent discrepancies 

in some of the witnesses’ descriptions of the men who were seen at

the Ewings’ home on the day of the home invasion and beatings,

specifically regarding whether Butler had facial hair—a point on 

which some witnesses provided inconsistent testimony. Regarding 

Butler’s contention that his trial counsel should have argued mere 

presence, we note that—as recounted in Division 2—there was 
26

strong evidence that Butler was at least a party to the crime of

malice murder. In light of the strong evidence presented at Butler’s 

trial, his speculation that a different defense strategy would have 

been more successful than the one his trial counsel chose is not 

sufficient to establish that his trial counsel performed deficiently. 

See Lanier v. State, 310 Ga. 520, 525 (852 SE2d 509) (2020) (“The 

fact that appellate counsel would have pursued the defense in 

different ways does not render trial counsel ineffective.”) (citation 

and punctuation omitted). Under these circumstances, Butler has 

not carried his burden of demonstrating that trial counsel’s decision 

to present a defense of false identification was objectively 

unreasonable. See Wilson, 2022 WL 451560, at *3. 

5. Butler contends that the trial court erred by purporting to 

“merge” the felony murder verdicts into the malice murder 

conviction for sentencing purposes. The State concedes this point, 

and we agree. But because—as noted in footnote 1—the felony 

murder verdicts actually were vacated by operation of law, and 

because the trial court’s erroneous nomenclature (i.e., referring to
27

“merging” instead of vacating by operation of law) did not affect 

Butler’s sentence, there is no sentencing error we need to correct. 

See Manner v. State, 302 Ga. 877, 890-891 (808 SE2d 681) (2017). 

Judgment affirmed. All the Justices concur.