In the Supreme Court of Georgia

Decided: October 24, 2023

S23A0443. HARDY v. THE STATE.

 WARREN, Justice.

In November 2021, Deveric Hardy was convicted of malice 

murder for the November 2016 shooting death of Kyree Smith.1 He 

appeals that conviction, arguing that his trial counsel provided 

constitutionally ineffective assistance by failing to introduce 

1 Smith was killed in November 2016. In March 2017, a Gwinnett 

County grand jury indicted Hardy and Stefan Ellington for malice murder, 

three counts of felony murder, and one count each for the underlying felonies 

of aggravated assault, attempt to possess greater than one ounce of marijuana, 

and attempt to purchase marijuana. In the same indictment, Anthony Benson 

was charged with tampering with evidence. Hardy was tried alone in 

November 2021. The jury found him guilty of malice murder, felony murder 

based on aggravated assault, and aggravated assault. The jury found him not 

guilty of the remaining offenses. The court sentenced him to serve life in prison 

on the malice murder count, vacated the felony murder count, and merged the 

aggravated assault count. Hardy timely moved for a new trial with new 

counsel, amending the motion once. In October 2022, after an evidentiary 

hearing, the trial court denied Hardy’s motion. He filed a timely notice of 

appeal. The case was docketed to the April 2023 term of this Court, and we 

now decide it based on the briefs. 
2

evidence that Smith had a violent character and by failing to request 

a jury instruction on accomplice corroboration. For the reasons 

explained below, we affirm. 

1. As pertinent to his claims on appeal, the evidence presented 

at Hardy’s trial showed the following. On the night of November 28, 

2016, Hardy, who was driving a car with Blake Stratton sitting in 

the backseat, and Smith, who was driving a car with Anthony 

Benson sitting in the back seat, met in the parking lot of a fast-food 

restaurant in Gwinnett County. After a brief interaction, Hardy

fired a gun “more than once,” hitting Smith twice, once in the right 

upper chest and once in the left side of the back. Smith died from 

his injuries. Hardy was later arrested for Smith’s murder in 

Tennessee.

At trial, Benson and Hardy each testified as to what happened 

that night. Benson testified as follows.2 He and Smith were close 

friends, and Smith sold marijuana. On the night of the shooting, he 

2 As noted in footnote 1 above, Benson was indicted for tampering with 

evidence. He was granted testimonial immunity for Hardy’s trial. The 

resolution of Benson’s indictment is not clear from the record.
3

and Smith went to the parking lot to sell someone marijuana. 

Benson did not know who the prospective buyer was. Benson sat in 

the back seat of the car to provide “protection,” although neither he 

nor Smith was carrying a gun. Smith had two bags of marijuana in 

the car. 

When Benson and Smith arrived at the parking lot, Smith 

initially pulled up on the passenger’s side of the car that was waiting 

for them. Benson saw a passenger in the car, but he did not talk to 

anyone in the other car or hear any conversation between Smith and 

the passenger. After less than a minute, Smith pulled around to the 

driver’s side of that car, positioning his car so the drivers were next 

to each other and the cars were “pretty close” together. Smith spoke 

to the driver briefly. Benson could not hear the conversation, and 

he could not clearly see the people in the other car. 

Then, Benson heard “more than one” gunshot. Benson did not 

know where the shots came from. Smith “yelled out,” and his foot 

hit the gas, causing the car to move forward and get stuck on a 

median in the parking lot. Benson took the marijuana and “dumped 
4

the bags out behind the car” in the woods because he “didn’t want 

anybody getting in trouble.”3 He saw that people who had been at 

the restaurant were calling 911, so he did not. He took Smith’s 

phone because he thought it was his own.4 He spoke to the police at 

the scene and later that night at the police precinct, but did not tell 

them the truth about why he and Smith were in the parking lot 

because he did not believe that Smith was dead and he did not want 

Smith “to get in trouble for anything weed related.”5

Hardy testified as follows. He met Stefan Ellington at a party 

a few months before the shooting, and Ellington told Hardy he knew 

someone who could sell him a new phone. Hardy made plans 

through Ellington to meet “a guy named Nick” in the restaurant

3 At some point that night, Benson told the lead investigator that “he 

threw a bag of marijuana into the woods,” and an officer was able to find a bag 

of about two ounces of marijuana behind the parking lot. 

4 Benson later gave his phone and Smith’s phone to the police.

5 Later, at the hearing on the State’s Motion to Grant Testimonial 

Immunity to Benson, Benson testified that Smith “had a play” to sell 

marijuana in the parking lot the night of the shooting. 
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parking lot and buy iPhones.6 Hardy did not know Smith.7 After 

Hardy arrived at the parking lot, another car arrived and pulled up 

to the passenger’s side of Hardy’s car, and the driver talked to 

Stratton. Then, the car pulled to the driver’s side, parking so Hardy 

and the other driver were “window to window.” 

Hardy asked, “do he have the phones,” and the driver asked 

how much money Hardy had. Hardy responded, “like 500,” and then 

the driver put a gun “in [Hardy’s] face.” According to Hardy, he held 

up his hands and then reached for the gun that was “in his face,”

and the two men “wrestled for it.” After a short struggle, Hardy 

gained control of the gun. The driver was still “advancing through 

the window,” and Hardy shot the gun “more than once,” “defending 

[him]self until [the driver] stopped becoming aggressive.” Hardy did 

6 No evidence was presented that someone named Nick appeared in the 

parking lot for the purported iPhone sale.

7 Text messages between Smith’s phone and Ellington’s phone indicate 

that Ellington had arranged to meet Smith in the parking lot to buy two ounces 

of marijuana on the night of the shooting. Also, in the hours leading up to the 

shooting, Ellington’s phone and Hardy’s phone exchanged several phone calls. 

There was no evidence of contact between Smith’s phone and Hardy’s phone

presented at trial. 
6

not see if the passenger in the back seat had a gun. The other car 

then drove up an embankment in the parking lot, and Hardy 

dropped the gun outside his window and drove away. No guns were 

found at the scene of the shooting, and the murder weapon was 

never found. Stratton also testified at trial, telling a story that was 

similar to Hardy’s. 

At trial, Hardy argued that he shot Smith in defense of himself 

and in defense of Stratton or in defense of habitation (i.e., his car).

2. Hardy contends that trial counsel provided constitutionally 

ineffective assistance by failing to introduce evidence that Smith 

had a violent character and by failing to request a jury instruction 

on accomplice corroboration. Both of Hardy’s 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.” Perkins v. State, 313 Ga. 885, 901 (873 SE2d 185) 

(2022) (citing Strickland v. Washington, 466 U.S. 668, 687-695 (104 

SCt 2052, 80 LE2d 674) (1984)). “To satisfy the deficiency prong, a 
7

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.’” Perkins, 313 Ga. 

at 901 (citation omitted). This demonstration requires a defendant 

to overcome the “‘strong presumption’” that trial counsel’s 

performance was adequate. Id. (citation omitted). A defendant 

attempting to carry his burden “must show that no reasonable 

lawyer would have done what his lawyer did, or would have failed 

to do what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 

SE2d 221) (2016). 

“To satisfy the prejudice 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.” 

Perkins, 313 Ga. at 901. “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Sullivan v. 

State, 308 Ga. 508, 510 (842 SE2d 5) (2020) (quoting Strickland, 466 

U.S. at 694). “This burden is a heavy one.” Young v. State, 305 Ga. 

92, 97 (823 SE2d 774) (2019). 
8

“Ineffectiveness claims involve mixed questions of law and fact, 

and ‘a trial court’s factual findings made in the course of deciding an 

ineffective assistance of counsel claim will be affirmed by the 

reviewing court unless clearly erroneous,’ whereas conclusions of 

law based on those facts are reviewed de novo.” Sullivan, 308 Ga. 

at 510 (citation omitted). “‘If an appellant fails to meet his or her 

burden of proving either prong of the Strickland test, the reviewing 

court does not have to examine the other prong.’” Bates v. State, 313 

Ga. 57, 63 (867 SE2d 140) (2022) (citation omitted).

(a) Hardy first claims that trial counsel provided ineffective 

assistance by failing to introduce evidence through Brevin Egerton, 

a high school classmate of Smith’s, that Smith had a violent 

character. Pretermitting whether trial counsel’s performance was 

constitutionally deficient, we conclude that Hardy’s claim does not 

succeed because he has not shown that his counsel’s performance 

resulted in prejudice to him. 

At trial, Hardy’s counsel asked the court to allow him to

introduce evidence of Smith’s “pertinent trait[s] of character” under 
9

OCGA § 24-4-404 (a) (2) because Hardy had made a prima facie case 

of self-defense.8 Trial counsel sought to introduce this evidence 

through Egerton, from whom Smith robbed shoes about 18 months 

before the shooting. Counsel argued that Egerton’s testimony would 

show that Smith had “a reputation for being a robber” or a 

reputation for “predatory behavior.” The trial court ruled that it 

would not admit evidence of specific acts, such as the shoe robbery,

8 OCGA § 24-4-404 (a) says:

Evidence of a person’s character or a trait of character shall not be 

admissible for the purpose of proving action in conformity 

therewith on a particular occasion, except for:

(1) Evidence of a pertinent trait of character offered by an 

accused or by the prosecution to rebut the same; or if 

evidence of a trait of character of the alleged victim of the 

crime is offered by an accused and admitted under 

paragraph (2) of this subsection, evidence of the same 

trait of character of the accused offered by the 

prosecution;

(2) Subject to the limitations imposed by Code Section 24-4-

412 [dealing with sex offense cases], evidence of a 

pertinent trait of character of the alleged victim of the 

crime offered by an accused or by the prosecution to rebut 

the same; or evidence of a character trait of peacefulness 

of the alleged victim offered by the prosecution in a 

homicide case to rebut evidence that the alleged victim 

was the first aggressor; or

(3) Evidence of the character of a witness, as provided in 

Code Sections 24-6-607, 24-6-608, and 24-6-609 [dealing 

with impeaching a witness].
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but that counsel could introduce opinion evidence of Smith’s 

reputation for “deceptiveness.” Egerton then testified that he 

attended high school with Smith and that Smith was “known in the 

community for being deceptive and deceitful.” Trial counsel did not 

ask Egerton questions about any specific acts or whether Smith had 

a violent character. 

At the motion-for-new-trial hearing, trial counsel—the only 

witness Hardy presented—testified that he did not elicit testimony 

from Egerton that Smith was violent because he “interpreted the 

Judge’s rulings” as prohibiting Egerton’s “opinion that [Smith] was 

violent or any of the facts and circumstances behind how [Egerton] 

reached that opinion.” Pretermitting whether counsel’s failure to 

elicit from Egerton evidence that Smith was violent constituted 

deficient performance,9 Hardy has not shown that any such 

deficiency caused him prejudice under Strickland. See Strickland, 

466 U.S. at 687. 

9 Specifically, Hardy appears to contend that trial counsel should have 

elicited evidence of Smith’s reputation for violence by impeaching Benson with 

Egerton’s trial testimony.
11

In the context of an ineffective assistance claim, we have 

explained that a defendant cannot rely on defense counsel’s 

testimony about what counsel expected an uncalled witness to say 

as evidence that the testimony would have been favorable to the 

defendant. See Wofford v. State, 305 Ga. 694, 697 (827 SE2d 652) 

(2019). But Hardy seeks to do just that. And given that Hardy did 

not present testimony from Egerton at the motion-for-new-trial 

hearing, trial counsel “could only speculate about what” testimony 

Egerton might have given. Id. As a result, Hardy has not shown

that Egerton “could have offered favorable testimony at trial” and 

cannot establish prejudice. See id. His claim therefore fails. See id.

(rejecting an ineffective assistance claim where the appellant 

attempted to establish prejudice using trial counsel’s testimony at

the motion-for-new-trial hearing about what counsel expected a 

police officer—who was not called to testify at trial—would have said 

if he had been called to testify) (citation omitted). See also Allen v. 

State, ___Ga.___, ___ (890 SE2d 700, 710) (2023) (rejecting an 

ineffective assistance claim on the prejudice prong where the 
12

appellant pointed only to trial counsel’s testimony at the motion-fornew-trial hearing about what counsel expected a video expert to 

testify to at trial, and explaining that to show prejudice in such 

circumstances, “‘[e]ither the uncalled witness must testify or the 

defendant must introduce a legally recognized substitute for the 

uncalled witness’s testimony’”) (citation omitted).10

(b) Hardy contends that trial counsel provided constitutionally 

ineffective assistance by failing to request a jury instruction on 

accomplice corroboration. Because Hardy has not shown that his 

counsel was deficient in this respect, his claim fails.

Hardy claims that an accomplice-corroboration instruction was 

warranted because some evidence was presented at trial that 

Benson was an accomplice to the charged crimes. Pretermitting 

10 To the extent Hardy also argues that trial counsel’s failure to introduce 

evidence of the shoe robbery constituted ineffective assistance, he failed to 

raise that claim at the motion-for-new-trial stage when he had new counsel. 

Thus, that claim is procedurally barred. See, e.g., Mahdi v. State, 312 Ga. 466, 

469 (863 SE2d 133) (2021) (“Although afforded the opportunity to raise claims 

of ineffective assistance of trial counsel through motion counsel, [appellant] did 

not then raise the specific claims of ineffectiveness at issue in this appeal. 

Accordingly, these claims “are procedurally barred for failure to assert them at 

the first practicable opportunity.”). 
13

whether there was at least slight evidence that Benson was an 

accomplice to Hardy’s crimes, Hardy has not demonstrated that trial 

counsel’s performance was deficient because we cannot say that his 

counsel was objectively unreasonable in deciding not to request the 

jury instruction Hardy complains about on appeal. 

“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. In particular, the decision about which jury charges to 

request is a classic matter of trial strategy.” Rayton v. State, 314 

Ga. 29, 35 (875 SE2d 708) (2022) (citation and punctuation omitted). 

At the hearing on Hardy’s motion for a new trial, trial counsel 

provided the following rationale for deciding not to request the 

accomplice-corroboration instruction. Trial counsel testified that his 

defense theory was that Hardy met Smith “under the auspices of 

purchasing cell phones,” that Smith first assaulted Hardy, and that 

Hardy shot Smith because Hardy was “defending himself.” Counsel 

believed that an accomplice-corroboration instruction would
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contradict the defense theory because it could have implied that

Hardy was not in the parking lot for the innocent purpose of buying

phones. 

The record supports trial counsel’s reasoning. Hardy testified 

at trial that he wrestled the gun away from and shot Smith only 

after Smith pointed the gun at Hardy. And trial counsel repeatedly 

argued at trial that Hardy went to the parking lot to buy phones—

not marijuana—and that Hardy had a right to protect himself from 

Smith’s aggression. Under these circumstances, we cannot say that 

trial counsel’s tactical decision to forgo an accomplice corroboration 

instruction was “so patently unreasonable that no competent 

attorney would have followed such a course.” Rayton, 314 Ga. at 35

(citation omitted). See also Perkins, 313 Ga. at 903-904 (holding that 

it was not objectively unreasonable for trial counsel to decide not to 

request an accomplice corroboration instruction where the evidence 

supporting such an instruction was “at best slight” and counsel 

testified at the motion-for-new-trial hearing that his defense theory 

was based on the insufficiency of the evidence and that “he did not 
15

‘believe that [the accomplice-corroboration] significantly help[ed] 

under the facts and circumstances of this case’”); Vasquez v. State, 

306 Ga. 216, 230 n.13 (830 SE2d 143) (2019) (“We have previously 

recognized that, in the context of a claim of ineffective assistance of 

counsel, it may be a reasonable trial strategy for the defense to forgo 

a request for an accomplice-corroboration charge even though it was 

warranted by the evidence presented at trial.”); Manner v. State, 

302 Ga. 877, 883-884 (808 S.E.2d 681) (2017) (rejecting the 

argument that trial counsel’s performance was deficient for 

withdrawing an accomplice corroboration instruction request

because “it was not objectively unreasonable for counsel to conclude 

that any benefit to [the appellant] in instructing the jury that [a 

witness’s] testimony required corroboration was outweighed by the 

instruction’s potential conflict with the theory of defense”). 

Consequently, Hardy has not established that his trial counsel 

performed deficiently, so his second claim of ineffective assistance 

fails. 

Judgment affirmed. All the Justices concur.