In the Supreme Court of Georgia

Decided: January 19, 2022

S21A1133. BOWEN v. NOEL.

 PETERSON, Justice.

Rodney Noel was granted habeas relief from his conviction for 

murdering nine-month-old Terrell Williams (“Terrell”). The habeas 

court held that Noel’s appellate counsel provided ineffective

assistance for two related reasons: (1) counsel failed to challenge the 

trial court’s denial of Noel’s right to impeach his intimate partner 

and Terrell’s mother, Crystal Williams (“Williams”), using three 

prior violent acts by her, and (2) counsel failed to assert Noel’s right 

to use these acts as proof that Williams, not Noel, killed Terrell. The 

State appeals.

We disagree with the habeas court that appellate counsel’s

performance was constitutionally ineffective. Noel’s claim regarding 

alleged impeachment error fails because it was not preserved at trial 
2

and so could not have been successfully raised on appeal. And Noel 

has not shown that any deficiency of appellate counsel regarding 

proof of third-party guilt was prejudicial. We therefore reverse.

1. Background

(a) Noel is accused of murdering Terrell Williams.

According to trial testimony, in March 2007, Noel, Terrell, and 

Williams traveled to Atlanta from Chicago for the weekend, staying 

at a hotel. Shortly before this, there was an incident where Williams 

threw Terrell into his car seat, but when Terrell left Chicago, he 

appeared to be healthy. Early in the weekend he had a hurt lip, 

which Noel and Williams attributed to Terrell’s car seat tipping over 

on the hotel floor while he was not strapped in. A doctor specializing 

in child protection testified that she found this explanation 

suspicious, but could not rule out the possibility that this injury was 

accidental.

Hotel housekeeper Laverne1 Pickett testified that the following 

Monday afternoon, she was cleaning the room next to Noel’s. She 

 1 Also referred to in the record as “Laurene.”
3

heard a baby crying and a man repeatedly saying “shut up,” then a 

thump, after which the noise stopped. She knocked on the door, and

Noel answered. She looked past him into the room and saw Terrell 

in a car seat.

Noel attempted to cast doubt on Pickett’s testimony. He 

testified that she never came to his door. He presented a copy of the 

time-card reflecting when Pickett clocked in and out for work, and 

that card indicated that Pickett may have left for the day before she 

claimed to have encountered Noel. However, the hotel’s record

keeper explained that the card did not necessarily show that Pickett 

had departed, and confirmed that Pickett was assigned to clean 

Noel’s room and others on the floor that day and that Pickett 

initialed a form indicating that she cleaned that room. Noel also 

called his defense investigator, who testified that he spoke with 

Pickett. The investigator testified that Pickett told him Noel was 

dressed (which conflicted with another witness’s testimony from the 

same timeframe) and that Pickett told the investigator she did not, 

in fact, hear a thump. In addition, Noel presented evidence that a
4

different housekeeper reported hearing “unnatural” baby cries near

Noel’s room, but no other sounds, and that this housekeeper denied 

that Pickett ever mentioned what she saw when she went to the 

room.

Separately from Pickett’s testimony, a hotel maintenance 

engineer testified that he saw Noel naked in the room’s doorway (a

paramedic also described Noel as undressed), panicking and 

shouting for help while crouching over Terrell. The engineer called 

911 and instructed Noel in CPR. Police officers and paramedics 

arrived. Paramedics did not find anything in Terrell’s mouth, 

although he had “a white substance” around it. When they asked 

Noel what happened, all he said in response was that Terrell “had 

some ice cream earlier.” Terrell had no pulse or breath, and his eyes 

were fixed and dilated. Terrell was placed on life support at the 

hospital and soon died.

Williams told a hospital social worker, and testified at trial,

that she never believed Noel hurt Terrell. According to the social 

worker, Williams “initially smiled and giggled often” while 
5

accompanying Terrell on his way to the hospital. Williams denied 

doing so. Noel’s cousin also testified that she spoke by phone with

Williams while Williams was at the hospital, and Williams seemed

unconcerned about Terrell but very anxious about Noel. Hospital 

records did note that Williams cried “profusely” when she learned

that Terrell sustained severe brain damage.

It was undisputed at trial that only Noel was in the room with 

Terrell immediately before Terrell began manifesting a medical 

emergency. Williams told police that she had put Terrell in his car 

seat so he could sleep, gone downstairs to do laundry, and upon 

returning, found Terrell unresponsive. She testified that Noel told 

her Terrell had choked while Noel was sleeping.

Noel told a paramedic he was in the shower when he heard 

Terrell choking and got out to help. But he later told a detective that 

when Williams went downstairs, he dozed off and awoke to the 

sound of Terrell choking. He then shook Terrell and tried to do CPR, 
6

put water on him in the shower,2 and held him in front of the air 

conditioner. Asked by a detective to demonstrate how he shook 

Terrell, Noel gave “a very physical shake.” Noel testified that after 

none of this worked, he called for help. Noel soon told the detective, 

though, that the detective had misunderstood him and gave a 

different demonstration, indicating that he only lightly shook the 

car seat. At trial, Noel testified that he “jostled” either Terrell or the 

car seat holding him. 

At trial, medical experts disagreed about the cause and timing 

of Terrell’s medical event. It was undisputed that Terrell suffered a 

fatal “severe brain injury” including bleeding and swelling. The only 

expert who testified about choking denied that choking could have 

caused Terrell’s injuries. According to three State experts, Terrell’s

head injuries were consistent with having been violently shaken

shortly before manifesting a medical emergency. However, the 

medical examiner attributed Terrell’s death only to non-accidental 

 2 Williams confirmed that Terrell was wet when she returned to the 

room.
7

traumatic head injuries generally, and could not make a 

determination about shaking as the specific cause. The defense’s

expert testified that Terrell’s head injuries were consistent with 

being hit by a hand or fixed object – not with being shaken – and 

could have been inflicted up to 24 hours before Terrell became 

nonresponsive. He testified that Terrell’s head injuries may not have 

been immediately visible or quickly incapacitating. Terrell also had 

some bruising on his buttocks and thigh, according to the defense

expert and a State expert. (Additionally, while the medical examiner

attributed the buttocks shading to a natural skin mark, he did note 

buttock abrasions and thigh bruising.) The defense expert indicated 

that the buttock bruising was from blunt force and could have been

caused by squeezing or by being struck with a linear object, like a 

belt. The medical examiner also stated that a belt could have caused 

the thigh bruising. Two of Williams’s belts were found in the hotel 

room, and Noel denied having any belts of his own with him.

Another State expert disavowed being able to tell when this nonhead bruising — which she did not personally see when examining 
8

Terrell — was caused.

(b) Noel tries to introduce Williams’s three violent acts.

During the trial, Noel blamed Williams for Terrell’s injuries 

and tried to present evidence of three prior violent acts Williams had

committed in Illinois. In 2004, she struck a fellow high school 

student with a padlock and pleaded guilty to battery, receiving a 

one-year sentence. In 2007, she was charged with domestic battery 

for pushing her adult aunt to the ground; it is not clear whether this 

resulted in a conviction. In 2008 — between Noel’s 2007 indictment 

and his 2009 trial in this case — Williams pleaded guilty to domestic 

battery with bodily harm, which Noel characterizes as the stabbing

of an ex-boyfriend, and she was sentenced to 18 months of probation.

The State moved in limine to exclude evidence of these acts. 

Noel’s counsel initially said that “the applicable statute” as to 

admissibility was former OCGA § 24-9-84.1, under which he claimed 

“any evidence” of crimes punishable by one year or more “can be 

introduced into the trial,” and “what we’re talking about here is 
9

impeachment material relevant to a State’s witness.”3 He continued

that he wanted “to introduce certified copies of these documents into 

evidence to impeach [Williams] in the event she did not acknowledge 

the conduct.” But counsel then stated, “I’m not offering this 

information to impeach her. I’m going to be asking her questions 

about the offenses for the purposes of showing her propensity for

violence and inability to control her anger,” adding that “nothing 

could be more germane” to his defense. Following a lengthy 

exchange, counsel concluded by disavowing any intention of 

impeaching Williams: “. . . I’m not seeking to impeach her. That’s 

not the goal here. That’s not what I need to do. I’m only asking the 

 3 The statute provided, in relevant part:

(a) General rule. For the purpose of attacking the credibility of a 

witness . . . (1) Evidence that a witness has been convicted of a 

crime shall be admitted if the crime was punishable by death or 

imprisonment of one year or more under the law under which the 

witness was convicted if the court determines that the probative 

value of admitting the evidence outweighs its prejudicial effect to 

the witness; and . . . (3) Evidence that any witness . . . has been 

convicted of a crime shall be admitted if it involved dishonesty or 

making a false statement, regardless of the punishment that could 

be imposed for such offense.

OCGA § 24-9-84.1 (a) (2005).
10

questions to establish her propensity for violence and inability to 

control her anger, which is absolutely relevant to the facts in this 

case.” The trial court asked whether this was “just a question of 

relevance.” Counsel agreed that it was, as he was just trying to show 

that the only other person who could have fatally injured Terrell “is 

a violent person who can’t control her anger.” The trial court barred

the evidence as irrelevant and because “the probative value does not 

exceed the prejudicial effect.”

(c) Noel is convicted, the conviction is affirmed, and he 

obtains habeas relief.

The jury acquitted Noel of malice murder, but found him guilty 

of three counts of felony murder, predicated on separate counts of 

aggravated assault, aggravated battery, and first-degree child 

cruelty, and guilty of the predicate counts as well. On direct appeal, 

Noel did not challenge the trial court’s ruling as to excluding 

evidence of Williams’s prior violent acts, and this Court affirmed his 

convictions. See Noel v. State, 297 Ga. 698 (777 SE2d 449) (2015).

Through new counsel, Noel filed a habeas petition challenging 

his appellate counsel’s failure to raise the admissibility of the 
11

contested evidence of Williams’s prior violent acts, both as 

impeachment under former OCGA § 24-9-84.1 and as proof of thirdparty guilt. The habeas court concluded that appellate counsel 

provided ineffective assistance and granted Noel relief. The State

now appeals.

2. Analysis

A claimant raising ineffective assistance of appellate counsel 

must demonstrate both that counsel performed deficiently and that 

this deficiency prejudiced him. See Strickland v. Washington, 466 

U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). Deficiency means 

that “the identified acts or omissions were outside the wide range of 

professionally competent assistance.” Id. at 690. It turns on “the 

objective reasonableness of counsel’s performance, not counsel’s 

subjective state of mind.” Brown v. State, 302 Ga. 813, 815 (2) (809 

SE2d 742) (2018). Prejudice means that “a reasonable probability 

exists that . . . the outcome of the appeal would have been different.” 

Gramiak v. Beasley, 304 Ga. 512, 513 (I) (820 SE2d 50) (2018). “We 

need not address both components of this test” if one is not proven. 
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Watson v. State, 303 Ga. 758, 762 (2) (d) (814 SE2d 396) (2018). 

Although we review a habeas court’s factual findings only for clear 

error, we “appl[y] the facts to the law de novo” in analyzing 

deficiency “and whether any purported deficiency was prejudicial.”

Johnson v. Williams, 308 Ga. 791, 794 (2) (843 SE2d 550) (2020). 

The habeas court erred when it ruled that appellate counsel 

was constitutionally ineffective. Noel’s claim that the contested 

evidence was admissible for impeachment was not preserved at 

trial, so appellate counsel was not deficient for failing to raise it.4

And any deficiency in failing to raise the evidence’s admissibility as

proof of third-party guilt was not prejudicial.

(a) Noel’s impeachment claim was not preserved at trial, so 

his appellate counsel was not deficient in not raising that 

issue.

Noel contends, and the habeas court ruled, that appellate 

counsel performed deficiently by failing to argue on appeal that the 

contested evidence should have been admitted under former OCGA 

 4 Noel did not claim in the habeas court and does not argue here that 

appellate counsel should have challenged trial counsel’s failure to preserve any 

error as ineffective assistance of trial counsel, so that issue is not before us.
13

§ 24-9-84.1. That statute allowed a witness to be impeached with 

felony convictions, subject to a probative value-prejudice balancing 

test. See, e.g., Martin v. State, 305 Ga. App. 764, 767 (2) (700 SE2d 

871) (2010). 

This claim was not preserved at trial. “Under the old Evidence 

Code, to preserve for any sort of review on appeal a claim that the 

trial court improperly excluded . . . evidence under a particular 

theory, a defendant had to argue at trial that the evidence was 

admissible under that theory.” Cross v. State, 309 Ga. 705, 710 (2) 

(848 SE2d 455) (2020). Noel’s trial counsel ultimately did not seek 

introduction of the contested evidence for impeachment under 

former OCGA § 24-9-84.1. Although counsel initially referenced that 

statute and impeachment, he concluded by saying only that the 

evidence was admissible to show Williams’s propensity to anger,

expressly disavowing an impeachment theory. Noel’s asserted 

OCGA § 24-9-84.1 error was not preserved, so appellate counsel was 
14

not deficient for failing to raise it.5

(b) Noel failed to show prejudice from any deficiency by 

counsel regarding proof of third-party guilt.

Noel failed to show prejudice from any deficiency by appellate 

counsel in failing to raise the contested evidence as proof of thirdparty guilt. There is no reasonable probability that Noel’s appeal 

would have had a different outcome had appellate counsel raised the 

issue. Under the law at the time of Noel’s trial, a defendant could

“introduce relevant and admissible testimony tending to show that 

another person committed the crime for which the defendant is 

tried.” Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998); 

see also Holmes v. South Carolina, 547 U.S. 319, 324 (126 SCt 1727, 

164 LE2d 503) (2006) (discussing accused’s federal constitutional 

right to present a full defense). But for evidence to be admissible on 

this basis, it had to “raise a reasonable inference of the defendant’s 

 5 Before this Court, Noel also claims the evidence was admissible under 

OCGA § 24-4-404 (b). But trial counsel did not raise that statute’s predecessor, 

OCGA § 24-4-2. Under the old Evidence Code, which was in force at the time 

of trial and so governs this appeal, this argument was not preserved. See Lane 

v. State, ___ Ga. ___ (1) (864 SE2d 34) (Case No. S21A1029, decided Oct. 5, 

2021).
15

innocence,” and either “show that the other person has recently 

committed a crime of the same or similar nature” or “directly connect 

the other person with the corpus delicti.” Klinect, 269 Ga. at 573 (3).

We need not decide whether the contested evidence should 

have been admitted under this test. In order to prevail in habeas 

corpus proceedings based on ineffective assistance of appellate 

counsel, Noel must show more than what would be required for 

admissibility (that the evidence would have raised a reasonable 

inference of Williams’s guilt, and either show that she committed a 

crime of the same or similar nature, or directly connect her with the 

corpus delicti); he also bears the higher burden of showing a 

reasonable probability that his appeal would have had a different 

outcome but for counsel’s deficiency. See Gramiak, 304 Ga. at 513 

(I).

Noel has not succeeded in doing so. The case against Noel was

not overwhelming, but neither was it particularly weak. Pickett

testified that she heard a man tell a crying baby to “shut up,” then 

a thump, after which the baby was silent; after this, she saw Noel 
16

alone with Terrell. Noel first said he shook Terrell and demonstrated 

doing so forcefully, then claimed that he only lightly “jostled” either 

Terrell or the car seat holding him. Noel also changed his story about 

whether he was sleeping or showering before he noticed Terrell 

having difficulties. His claim that Terrell choked did not align with 

any of the medical expert testimony. Noel does not challenge the 

admissibility of this circumstantial evidence, and it amply supports 

the jury’s verdict, even considering Noel’s attempts to undercut 

Pickett’s credibility. Cf. Virger v. State, 305 Ga. 281, 286 (2), 294 (7) 

(824 SE2d 346) (2019) (deeming evidence of child murder “strong” 

where child manifested bruising after being with defendant, who 

was one of two adults present at time of fatal injury, and defendant’s 

account contradicted medical evidence).

But prejudice requires more than just a consideration of the 

strength of the case against Noel. It requires considering the 

marginal effect the introduction of the excluded evidence would 

reasonably have had. See Yi v. State, 267 Ga. 171, 172 (2) (475 SE2d 

623) (1996) (“In considering prejudice, the defendant has the burden 
17

of showing a reasonable probability that without counsel’s errors 

the jury would have had a reasonable doubt concerning guilt.”).

Here, that effect was not reasonably likely to have been significant. 

None of the three incidents regarding Williams involved violence 

against a young child. Noel was allowed to introduce evidence that 

more directly gave rise to an inference of Williams’s guilt — her 

throwing Terrell into a car seat only a few days earlier, the 

possibility that Terrell was beaten by one of Williams’s belts, and 

Williams’s inappropriate demeanor on the way to and at the 

hospital. Whatever additional inference — beyond that already 

arising from the admitted evidence — that might arise from three 

incidents of violence against adults over a four-year period is simply 

too tenuous to constitute prejudice in the context of this case.

This conclusion is reinforced when we compare the excluded 

evidence here with the evidence in other cases admitted as raising a 

reasonable inference of third-party guilt. The other acts in those 

cases had as a victim either the same person as the charged crime 

or a similarly vulnerable child. See Gilreath v. State, 298 Ga. 670, 
18

673-674 (2) (784 SE2d 388) (2016); Scott v. State, 281 Ga. 373, 376-

378 (3) (637 SE2d 652) (2006). This distinction does not necessarily 

mean that the contested evidence was properly excluded from the

trial; again, we express no view on that subject. But it does mean 

that the inference of Williams’s guilt flowing from that evidence 

would have been substantially weaker than in Gilreath and Scott, 

which, in turn, undercuts Noel’s effort to carry his higher burden of 

showing prejudicial deficiency in appellate counsel’s performance.

In the light of the evidence against Noel and the comparatively weak 

implication of guilt the contested evidence cast on Williams, Noel 

was not prejudiced by any deficient performance by appellate 

counsel as to this issue.

Judgment reversed. All the Justices concur.