In the Supreme Court of Georgia

Decided: February 15, 2022

S21A1242. HARRIS v. THE STATE.

 WARREN, Justice.

After a jury trial that was held in July and August 2019, 

Demartre Harris was convicted of felony murder and other crimes 

for his involvement in two drive-by shootings that injured Laundon 

Alexander and Patrick Boyd and resulted in the death of Marcus 

Bowden.1 Harris raises four claims of error on appeal: (1) that the 

 1 On November 7, 2017, a Muscogee County grand jury indicted Harris 

for malice murder, felony murder (predicated on aggravated assault), three 

counts of aggravated assault (one predicated on the assault of Marcus Bowden, 

one predicated on the assault of Laundon Alexander, and one predicated on the 

assault of Patrick Boyd), possession of a firearm during the commission of a 

felony, and possession of a firearm by a convicted felon. The trial court granted 

the parties’ joint motion to bifurcate the trial, severing the possession-of-afirearm-by-a-convicted-felon count from the other six counts. At a trial from 

July 29 to August 5, 2019, a jury found Harris not guilty of malice murder but 

guilty of the remaining charges. On July 29, 2019, Harris was sentenced to 

life in prison for felony murder, a consecutive 20 years (10 to serve) for the 

aggravated assault of Alexander, a concurrent 20 years (10 to serve) for the 

aggravated assault of Boyd, and a consecutive 5 years in prison for possession 
2

evidence was insufficient to support his convictions; (2) that the trial 

court erred by admitting evidence pertaining to the weapons and 

ammunition that law enforcement officials found at the time of 

Harris’s arrest; (3) that the trial court erred by admitting evidence 

pertaining to Harris’s Facebook posts; and (4) that Harris received 

constitutionally ineffective assistance of counsel because his trial 

lawyer failed to call Dashauna Wilborn as a witness. For the 

reasons explained below, we affirm. 

1. Viewed in the light most favorable to the verdicts, the 

evidence presented at Harris’s trial showed the following. On 

November 21, 2015, Harris picked up his girlfriend, Jackie Pearson, 

from a Piggly Wiggly grocery store and the two of them then went to 

 

of a firearm during the commission of a felony. The State agreed to nolle pros 

Harris’s possession-of-a-firearm-by-a-convicted felon charge. The aggravated 

assault count for the assault of Bowden merged into the felony murder count 

for purposes of sentencing. Through trial counsel, Harris filed a timely motion 

for new trial on August 26, 2019. On September 3, 2019, Harris filed a second 

motion for new trial. Through new counsel, Harris filed an amended motion 

for new trial on June 18, 2020. After a hearing and after receiving leave from 

the trial court, Harris filed a second amended motion for new trial. On 

December 14, 2020, following multiple hearings on Harris’s motions for new 

trial, the trial court denied Harris’s motion. On December 30, 2020, Harris 

filed a timely notice of appeal. The case was docketed in this Court for the 

August 2021 term and submitted for a decision on the briefs. 
3

the M&N Package Store in Columbus. As Pearson walked inside 

the package store, three men, whom she did not know, walked out. 

When Pearson exited the store, she observed the same men “jumping 

on” and “beating” Harris. The group of men who attacked Harris 

included Boyd, Robert Oestricher, and Oestricher’s brother. 

According to Oestricher, multiple other people ran from “Ms. Mary’s 

house”—a nearby house where he and his friends would “hang 

out”—to the package store when the fight broke out, and Oestricher, 

Boyd, and Oestricher’s brother all ran back to Ms. Mary’s house 

when the fight was over. 

Harris was a member of the “Bounty Hunter Bloods” gang.

About 15 minutes after he was attacked, he sent a Facebook 

message to a fellow gang member, Spencer Marshall, saying “Come 

get me blood, I just got jumped.” As part of his exchange with 

Marshall, Harris messaged, “Everybody dies.” Marshall later 

testified that the men who attacked Harris were members of rival 

gangs. 

At approximately 6:00 p.m. on November 23—two days after 
4

Harris was attacked—Alexander and Boyd were standing in the 

yard at Ms. Mary’s house. Alexander was there to visit Bowden and 

other friends. While Alexander and Boyd were standing in the yard, 

Alexander heard a gunshot, and when he turned around he saw 

more gunshots coming from a “white Explorer” with “at least two” 

people in it. Alexander was shot in the thigh and Boyd was shot in 

the leg. Boyd testified that his “leg broke after being shot,” and he

spent about two weeks in the hospital recovering. 

The police arrived after the shooting and collected a total of five 

shell casings that were on a street adjacent to Ms. Mary’s house. 

The shell casings included three Smith & Wesson .40-caliber shell 

casings, one PMC .25-caliber shell casing, and one .22-caliber shell 

casing. 

The next day, Harris borrowed Pearson’s white Ford Explorer 

at 11:00 a.m., when Pearson returned home from work. Antoine 

Gardner left with Harris in the Explorer. At 11:30 a.m., Bowden 

and Harold Prude visited Ms. Mary’s house; Bowden went inside but 

Prude stayed outside. Prude testified that he was standing in the 
5

yard near the fence when he heard gunshots coming from an “SUV”

that “looked like white, but I ain’t had time to stand there and look.” 

Edward Wilson, who observed the shooting, believed the shots had 

been fired from a white Explorer. Prude testified that “five or six” 

gunshots were fired from the “back driver side” of the SUV. He could 

not tell how many people were inside the SUV, but testified that “it 

had to be two because somebody was driving.” When the shots 

began, Prude ran toward the front of Ms. Mary’s house. When the 

shooting stopped, Prude walked back “to see where everybody 

escaped” and found Bowden lying wounded by the back door. 

Bowden died of his injuries; an autopsy later revealed that he had 

been shot once in the right buttock and once in the abdomen. At 

approximately 11:45 a.m., Harris returned Pearson’s white 

Explorer.

Officers arrived at the scene at about 11:55 a.m. and recovered 

six .40-caliber bullets, two .40-caliber shell casings, and a 9 

millimeter cartridge. Law enforcement officials identified Harris as 

a suspect in Bowden’s murder, and in the course of looking for Harris
6

the next day, executed a search warrant on Gardner’s house. They 

did not find Harris, but did find Gardner—who had left with Harris 

in Pearson’s Explorer on the day of Bowden’s murder—and took him 

into custody. Officers also seized a pink Walther .22-caliber semiautomatic pistol that they found in the attic of Gardner’s house. 

They also searched Pearson’s white Explorer and found a .22-caliber 

shell casing under the rear passenger seat. 

Approximately three months later, after further investigation 

revealed Harris’s possible location, Lieutenant Lance Deaton and a 

team of officers secured and executed a search warrant on a 

residence that belonged to two of Harris’s friends. Once the officers 

entered the home, they learned that Harris was barricaded inside

one of the bedrooms. Officers breached the door and took Harris into 

custody. Under the cushion of the sofa located in the room in which 

Harris barricaded himself, Lieutenant Deaton located a loaded 

Taurus .45-caliber handgun with an extended magazine, along with 

.223-caliber and .357-caliber ammunition. The handgun was not the 

same caliber as the weapons believed to be used in the November 23 
7

and 24 shootings. 

At trial, a Georgia Bureau of Investigation (“GBI”) firearm 

examiner testified that the .40-caliber cartridge cases found at the 

scene of the November 24 shooting shared “individual 

characteristics”—“scratches that were imparted to the bullet or to 

the cartridge case when they were fired in that firearm”—with the 

.40-caliber cartridge cases found at the November 23 shooting scene, 

indicating they were fired from the same firearm. Specifically, the 

individual characteristics on the cartridge cases indicated that the 

firearm that imparted markings on both cartridge cases was a 

Springfield, an FN Browning, or a Taurus .40-caliber semiautomatic pistol. Moreover, the .40-caliber bullet recovered during 

Bowden’s autopsy matched the .40-caliber casings recovered from 

the November 23 and 24 shooting scenes. The State also introduced 

evidence that on November 15, 2015—nearly a week before Harris 

was attacked at the M&N Package store—Harris told Marshall on 

Facebook that he recently obtained an “XD Springfield .40.”

With respect to the .22-caliber shell casing officers retrieved 
8

from Pearson’s white Explorer, the GBI firearm examiner testified 

that the casing’s individual characteristics indicated it was fired 

from the pink .22-caliber pistol found in the attic of Gardner’s house 

when Gardner was arrested. 

Finally, the State tendered an expert whom the trial court 

qualified to testify about gang culture in the Columbus area. He

testified that a low-ranking member of a gang, like Harris, would be 

required to retaliate against members of a different gang who 

disrespected him in order to retain his position in the gang. As part 

of the final jury instructions, the trial court charged on Georgia’s 

“party to a crime statute,” OCGA § 16-2-20 (a), instructing the jury 

that “every party to a crime may be charged with and convicted of 

commission of the crime.”

2. Harris contends that the evidence was legally insufficient to 

support his convictions because the case against him was entirely 

circumstantial and there was no direct evidence that he took part in 

either the November 23 or 24 drive-by shootings. Specifically, 

Harris asserts that there was no physical evidence and no witness 
9

that placed him at the scene of either shooting; that no murder 

weapon was ever found with respect to the November 24 shooting;

and that there was significant evidence that Gardner, who is now 

deceased, was the person who shot and killed Bowden. Harris 

argues that the State failed to exclude the reasonable hypothesis 

that someone else—such as Gardner or another gang member—

committed the crimes of which he was convicted, which included the 

murder of Bowden and the non-fatal shootings of Alexander and 

Boyd. We disagree.

When evaluating a challenge to the sufficiency of the 

evidence [as a matter of constitutional due process], we 

view all of the evidence presented at trial in the light most 

favorable to the verdict[s] 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.

 

Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) (2018) (citing 

Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) 

(1979)). “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,” Smith v. State, 
10

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, “to warrant a conviction 

on circumstantial evidence, the proved facts shall not only be 

consistent with the hypothesis of guilt, but shall exclude every other 

reasonable hypothesis save that of the guilt of the accused.” OCGA 

§ 24-14-6. “Whether alternative hypotheses are reasonable, 

however, is usually a question for the jury, and this Court will not 

disturb the jury’s finding unless it is insufficient as a matter of law.” 

Frazier v. State, 308 Ga. 450, 453 (841 SE2d 692) (2020) (citation

and punctuation omitted). 

The evidence here, although circumstantial, was sufficient to 

convict Harris as a matter of constitutional due process and under 

Georgia statutory law. To begin, the State introduced evidence that 

Harris was a gang member and that he was attacked by rival gang 

members days before the November 23 and 24 drive-by shootings.

Through its expert, the State also introduced evidence that Harris
11

had a motive to retaliate against the men who attacked him. The 

State also established that the rival gang members who attacked 

Harris tended to congregate at the house where the November 23 

and 24 shootings occurred and that Harris observed his attackers 

run away from the package store parking lot toward that house after 

he was attacked. The State further showed that, in response to 

questions about the attack, Harris messaged Marshall, “Everybody 

dies,” from which the jury could infer that Harris had threatened to 

kill the men who had attacked him at the package store. And when 

police officers finally located Harris and sought to arrest him, Harris 

barricaded himself in a room with a gun and ammunition.

As to the November 24 shooting, Pearson’s testimony placed 

Harris with Gardner in Pearson’s white Explorer at 11:00 a.m., 

minutes before the 11:30 a.m. shooting that resulted in Bowden’s 

death. And at least one witness placed a white Explorer at the scene 

of the November 23 shooting, with a different witness placing a 

white Explorer at the scene of the November 24 shooting. The 

State’s ballistics expert also testified that the .40-caliber shell 
12

casings recovered from the scene of the November 24 shooting 

matched those recovered from the scene of the November 23 

shooting, and Facebook posts showed that, days before the 

shootings, Harris claimed to possess a particular brand of .40-caliber 

gun—a Springfield—that, according to the State’s ballistics expert, 

could have fired the .40-caliber shell casings recovered at the scene 

of both shootings. Viewed as a whole, a reasonable juror could infer 

from the evidence presented at trial and recounted in part above

that the same person or group of people were involved in both the 

November 23 and 24 shootings and that Harris participated in those 

crimes. And although the evidence against Harris was far from

overwhelming, it did allow a reasonable jury to conclude beyond a 

reasonable doubt that Harris was at least a party to the crimes of 

which he was convicted, and that there was no “reasonable

hypothesis,” OCGA § 24-14-6, other than Harris’s guilt. See Frazier, 

308 Ga. at 453; OCGA § 16-2-20 (a) (“Every person concerned in the 

commission of a crime is a party thereto and may be charged with 

and convicted of commission of the crime.”).
13

3. Harris contends that the trial court erred by admitting 

evidence of the weapons and ammunition officers found at the time 

of Harris’s arrest. We disagree.

At trial, Harris’s counsel moved to exclude all testimony and 

evidence relating to a gun and ammunition found on or near Harris 

at the time of his arrest, arguing that it was irrelevant and unduly 

prejudicial to Harris. The trial court denied that motion, and the 

State admitted several photographs of the handgun and 

ammunition that were found with Harris at the time of his arrest, 

as well as the actual Taurus handgun and ammunition that officers 

recovered. Lieutenant Deaton testified that as he arrested Harris, 

Deaton recovered a bag with a “tremendous” amount of ammunition

in it. Later, during her closing argument, the prosecutor noted that 

Harris was found with a “.45 caliber pistol with ammunition in the 

. . . chamber, and it [was] cocked.” 

In his motion for new trial, Harris argued that the trial court 

violated OCGA §§ 24-4-401 (“Rule 401”) and 24-4-403 (“Rule 403”)

by allowing admission of testimony about Harris’s arrest as well as 
14

photographs of physical evidence taken at the time of Harris’s 

arrest, which was four months after the November 23 and 24

shootings. In the trial court’s order denying Harris’s motion for new 

trial, the court reasoned that the “circumstances of Defendant’s 

arrest, including evidence of the gun and ammunition, were relevant 

to Defendant’s flight, his consciousness of guilt, and his willingness 

to hide and arm himself for the encounter with law enforcement.” 

On appeal, Harris again contends that this evidence was 

irrelevant under Rule 401 and unfairly prejudicial under Rule 403.

The admission of evidence “lies within the sound discretion of the 

trial court, whose decision will not be disturbed on appeal absent a 

clear abuse of discretion.” Flannigan v. State, 305 Ga. 57, 62 (823 

SE2d 743) (2019) (citation and punctuation omitted). 

The trial court did not abuse its discretion by concluding that 

the evidence the State presented about the handgun and 

ammunition found with Harris at the time of his arrest was relevant 

under Rule 401. Evidence is relevant if it has “any tendency to make 

the existence of any fact that is of consequence to the determination 
15

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

the evidence.” OCGA § 24-4-401. Because Georgia’s Evidence Code 

based its relevance definition on Rule 401 of the Federal Rules of 

Evidence, we “look to decisions of the federal appeals courts 

construing and applying the Federal Rules, especially the decisions 

of the Eleventh Circuit,” Gates v. State, 298 Ga. 324, 327 (781 SE2d 

772) (2016) (citations and punctuation omitted), and the Eleventh 

Circuit has explained that it is “universally conceded that the fact of 

an accused’s flight, escape from custody, resistance to arrest, 

concealment, assumption of a false name, and related conduct, are 

admissible as evidence of consciousness of guilt, and thus of guilt 

itself.” United States v. Borders, 693 F2d 1318, 1324 (11th Cir. 1982) 

(citation and punctuation omitted). See also Rowland v. State, 306 

Ga. 59, 65 n.4 (829 SE2d 81) (2019) (“Evidence showing that a 

defendant attempted to evade arrest . . . may be admissible as 

evidence of flight[,] and statements about flight are generally 

admissible as circumstantial evidence of guilt.”). 

Moreover, we cannot say that the introduction of this evidence 
16

was unduly prejudicial under Rule 403. “Relevant 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.” OCGA § 24-4-403. “Rule 403 

is an extraordinary remedy, which should be used only sparingly, 

and the balance should be struck in favor of admissibility.” Carston 

v. State, 310 Ga. 797, 803 (3) (b) (854 SE2d 684) (2021) (citation and 

punctuation omitted). Therefore, “in reviewing issues under Rule 

403, we look at the evidence in a light most favorable to its 

admission, maximizing its probative value and minimizing its 

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

Here, the evidence related to Harris’s attempt to evade arrest 

by barricading himself in a room—evidence that included the 

handgun and ammunition that was found near Harris at the time of 

his arrest—had probative value because it suggested that Harris 

had a reason to evade law enforcement officers and therefore 

demonstrated Harris’s consciousness of guilt. And in a
17

circumstantial case like this one, the need for this type of evidence 

was greater because it provided an additional set of facts from which 

the jury was authorized to infer Harris’s guilt. See Rowland, 306 

Ga. at 65 n.4. 

Nor does the danger of unfair prejudice substantially outweigh 

the probative value of the evidence that was admitted. That is 

particularly true because the State did not argue that the gun and 

ammunition recovered during Harris’s arrest were used in the 

November 23 or 24 shootings. And even though “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,” Anglin v. State, 302 Ga. 333, 337 

(806 SE2d 573) (2017), and Harris has not shown that he suffered 

such prejudice. Accordingly, the trial court did not abuse its 

discretion when it admitted evidence of the handgun and 

ammunition that were found with Harris when he was arrested. 
18

4. Harris contends that the trial court erred by admitting 

evidence of his Facebook posts. Prior to trial, Harris made a motion 

to exclude “any picture of the defendant with a firearm,” arguing 

that such photos were irrelevant and prejudicial. Due to the “overly 

broad” language in the motion, the trial court declined to rule on the 

motion at that time and instead decided to evaluate the 

admissibility of any contested pictures on a “photo-by-photo” basis

during trial.

To that end, during Marshall’s direct examination, the State 

attempted to introduce a series of message exchanges on Facebook 

between Harris and Marshall, which included a photograph Harris 

sent of an “XD Springfield 40”—a gun Harris claimed to possess. 

The State argued that the picture and messages were relevant 

because they were sent on November 14, 2015, ten days before 

Bowden’s murder, and the gun pictured in Harris’s Facebook 

messages was one of the types of guns that the State’s expert

testified could have fired the .40-caliber rounds found after both the 

November 23 and November 24 shootings. The trial court overruled 
19

Harris’s objection, concluding that the photograph was relevant and

that the evidence did not violate Rule 403.

The trial court did not abuse its discretion in concluding that 

the photograph and messages in question were relevant. That 

Harris claimed to possess a gun that could have been used in the 

November 23 and 24 shootings—namely, the “XD Springfield 40” 

that is one of only three brands the State’s ballistics expert said 

could have fired the .40-caliber rounds recovered from the scene of

both shootings—is a “fact that is of consequence to the 

determination of the action,” OCGA § 24-4-401, because it had a

tendency to make it more probable that one of the weapons used in 

the shootings belonged to Harris. 

Nor did the trial court abuse its discretion in concluding that 

the admission of the Facebook evidence did not violate Rule 403. 

Even to the extent the Facebook picture and messages were

prejudicial to his defense, he has not shown that they were unfairly 

prejudicial. See Anglin, 302 Ga. at 337. And any prejudicial effect 

Harris suffered as a result of the admission of that evidence was 
20

outweighed by its probative value, especially given that it was used 

to show—in a circumstantial case in which no murder weapon was 

found—that Harris had in his possession approximately one week 

prior to the shootings a type of gun that could have been used in 

those shootings. See Johnson v. State, 312 Ga. 481, 493 (863 SE2d 

137) (2021) (holding that the trial court did not abuse its discretion 

in admitting evidence over a Rule 403 objection when it was not a 

“matter of scant or cumulative probative force, dragged in by the 

heels for the sake of its prejudicial effect”) (citations and punctuation 

omitted). 

5. Harris contends that his trial counsel provided ineffective 

assistance under the Sixth Amendment to the United States 

Constitution because she failed to call Dashauna Wilborn as a 

witness at trial. His claim fails, however, because he has not shown 

that his counsel’s performance was deficient. 

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 
21

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. 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. 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).

Harris contends that his trial counsel should have called 

Wilborn as a witness at trial because she saw Harris being attacked 

at the M&N Package Store and also observed the November 23 and 

24 shootings. According to Harris, Wilborn would have testified that 
22

Pearson’s white Explorer was not the same SUV used in the 

November 23 and 24 shootings. 

At the hearing on Harris’s motion for new trial, Wilborn 

testified that she saw people shooting out of a “white Expedition” 

during the November 23 shooting, that a “white Tahoe” was used 

during the November 24 shooting, and that the white Expedition

used in the November 23 shooting was not the same white SUV that 

she saw Harris leave in after he was attacked at the package store

days earlier. In denying Harris’s motion for new trial, the trial court 

made specific findings about Wilborn’s credibility, including that:

First, Ms. Wilborn never spoke with the police on the day 

or night of the shootings despite claiming to have had a 

clear view of those shootings and despite personally 

knowing the victims;

Second, when she did speak with the police a few days 

after the murder, she gave them far less information that 

she testified to during the motion for new trial hearing 

five years later, and she in fact told the police she was 

unable to provide further information;

. . .

Fifth, while Ms. Wilborn testified at the post-trial hearing 

that the vehicle involved in the November 21 assault was 
23

a Ford Explorer, she did not make such a statement to the 

police after the shooting. Similarly, while she testified at 

the post-trial hearing that the vehicle involved in the 

November 24 murder was a Tahoe, there is no indication 

she told the police that when questioned after the 

shooting. While she did apparently tell the police that the 

vehicle involved on November 23 was “different from that 

of today’s date” (presumably November 24), she “was 

unable to provide any further details about what 

occurred.” It seems likely that her memory and 

knowledge of the events she claims to have witnessed 

would have been far better when she spoke with the police 

days after the murder than it was at the time of the posttrial hearing, nearly five years after the murder. This 

casts doubt on her 2020 testimony.

The trial court ultimately concluded that:

[i]t is not at all clear that Ms. Wilborn’s testimony (even 

if believed) would have likely led to a different outcome in 

this case or that it would have materially helped 

Defendant at all. Critically, other credible evidence 

supported the State’s theory that a white SUV was 

involved in all three incidents and that the Defendant had 

access to and use of a white SUV during the relevant 

times. While Ms. Wilborn identified three different 

vehicle models, she nonetheless testified that a white 

SUV was involved in all three incidents. This testimony 

could have easily hurt, rather than helped, the defense. 

We “ordinarily afford great deference to credibility 

determinations by trial courts, including in the motion-for-new-trial 

context,” Debelbot v. State, 305 Ga. 534, 540 (826 SE2d 129) (2019), 
24

and we cannot say that the trial court’s credibility findings were 

clearly erroneous here. See Grimes v. State, 296 Ga. 337, 346 (766 

SE2d 72) (2014) (“In the absence of a showing of clear error, we do 

not disturb the trial court’s credibility determinations.”). Especially 

given Wilborn’s inconsistent testimony at the hearing on the motion 

for new trial as compared to her statements shortly after the 

shootings, “the failure to call [her] as a witness at trial was not 

deficient performance.” Huff v. State, 299 Ga. 801, 806 (792 SE2d 

368) (2016). See also Washington v. State, 294 Ga. 560, 566 (755 

SE2d 160) (2014) (“It is settled that the determination of which 

defense witnesses to call . . . [is a] matter[] of trial strategy and 

tactics, and such 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.”).2 

 2 In support of his argument that his trial counsel provided 

constitutionally ineffective assistance, Harris points to Cartwright v. Caldwell, 

305 Ga. 371 (825 SE2d 168) (2019), a habeas case in which this Court concluded 

that trial counsel performed deficiently when he failed to cross-examine a 
25

And even though trial counsel testified at the motion-for-newtrial hearing that she “d[id] not know” why she did not call Wilborn 

as a witness at trial, an attorney’s professed reason for making a 

decision at trial does not determine whether the attorney’s 

performance was deficient under Strickland. Indeed, Strickland

imposes an “objectively unreasonable” standard for analyzing 

deficiency, Romer, 293 Ga. at 344, and in light of the trial court’s 

express findings about Wilbon’s credibility, we cannot say that trial 

counsel was objectively unreasonable not to call Wilbon as a witness, 

see Strickland, 466 U.S. at 687-688.

Judgment affirmed. All the Justices concur. 

 

particular witness to “cast doubt on the credibility of the State and one of its 

key witnesses and to bolster Cartwright’s alibi defense.” Id. at 379. But 

Cartwright is distinguishable; among other reasons, we concluded in that case 

that there was “no indication . . . that [the uncalled witness] would not have 

been credible or would have refused to testify if called.” Id. at 379. Here, by 

contrast, the trial court expressly found that the uncalled witness, Wilborn,

lacked credibility when she testified about the very issue Harris contends was 

so critical for his case. Unlike with the witness in Cartwright, we cannot say 

that it was objectively unreasonable for trial counsel not to call Wilborn as a 

witness in Harris’s trial.