Redding v. State

R
In the Supreme Court of Georgia



                                     Decided: May 17, 2021


                 S21A0331. REDDING v. THE STATE.


      BOGGS, Justice.

      After a 2017 jury trial, Julian Keyon Redding was convicted of

malice murder and possession of a firearm during the commission of

a felony in connection with the shooting death of Prince Varner. He

appeals, asserting three errors in the trial court’s jury instructions

and ineffective assistance of trial counsel. For the reasons stated

below, we affirm. 1


      1 The murder occurred on October 24, 2015. On January 14, 2016, a
Henry County grand jury indicted Redding for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
felony. Redding was tried before a jury from July 10 to 14, 2017, and found
guilty of all charges. Redding was sentenced to serve life in prison without the
possibility of parole for malice murder and five years to serve consecutively on
the firearm charge. The trial court merged the aggravated assault count into
the malice murder conviction, and the felony murder charge was vacated by
operation of law. On July 17, 2017, Redding’s trial counsel filed a timely motion
for new trial, which was amended by appellate counsel on December 2, 2019
and February 20, 2020. After a hearing, the motion for new trial was denied
      1. The evidence at trial2 showed that on September 13, 2015,

Redding’s cousin, DeMarcus Jester, was shot in the leg. Redding was

aware of rumors that Prince Varner was responsible. On October 25,

2015, Varner, his girlfriend, and two friends went to the Red Zone,

a local bar in McDonough. All four were patted down by a bouncer

for weapons. During the evening, Redding and some of his friends

followed Varner around the bar and told him, “Somebody die

tonight.” They continued to harass him throughout the night, and

Varner told his girlfriend, “I feel like they going to jump me.” In the

early morning hours, one of Redding’s friends lured Varner outside

the bar by offering him a cigar. Redding emerged from the bar and

again told Varner, “Somebody die tonight. Somebody die tonight.”

Varner was standing at the bar entrance talking on his cell phone




on May 19, 2020. Redding’s notice of appeal was filed on May 20, 2020, and the
case was docketed in this Court for the term beginning in December 2020 and
submitted for decision on the briefs.
      2 This Court no longer routinely considers sua sponte the sufficiency of

the evidence in non-death penalty cases. See Davenport v. State, 

309 Ga. 385

,
392 (4) (846 SE2d 83) (2020). But a review of the evidence here is relevant to
Redding’s enumerations of error.

                                      2
when Redding retrieved a pistol from his car and approached

Varner, who said, “I’ll beat your mother******g *ss. Put down the

pistol.”3 Varner then ran back into the crowded bar. Redding

followed him to the entrance doorway and shot him six times from

behind, striking and wounding a bystander, and continuing to shoot

even after Varner fell face-down on the floor. Redding then fled;

Varner died at the scene.

      The bar had an extensive video and audio surveillance system,

including close-up views of the bar entrance, and the shooting was

recorded and played for the jury. Video recordings and still frames

from the videos showed Varner standing outside the bar’s front

entrance, Redding running toward him from the parking lot, Varner

ducking and fleeing into the bar as Redding followed him through

the entrance doors, and Redding shooting Varner in the back

multiple times from only a few feet away, even after Varner fell to


      3  Varner’s cousin, who was standing nearby, testified to Varner’s
statement. On direct examination, Redding denied that he heard this, claiming
instead that Varner said Redding should not create any “smoke” or controversy
or else Varner would “kill y’all.” But on cross-examination, Redding testified
only that Varner had threatened him at some unspecified earlier time.
                                      3
the floor. Police officers recovered six shell casings near the bar

entrance, but no firearm was found on or near Varner’s body, and

three witnesses testified that Varner never had a gun. At trial,

Redding admitted that the shells were fired from his pistol.

     Redding asserted a defense of justification by self-defense,

claiming that Varner had a violent reputation, belonged to a gang,

was known to carry a gun, was seen earlier in the evening taking a

pistol from his girlfriend’s purse, and was suspected of having shot

Jester. Redding claimed that Varner had threatened him on

Facebook and had sent threatening messages by cell phone, but he

did not produce any social media or telephone messages. In addition,

Redding testified that Varner had threatened him “earlier that

night” and that he overheard Varner threatening his cousin, Javon

Redding, and saying that he had a “MAC-10” submachine gun “on

deck.” Finally, Redding testified that when he approached Varner

outside the bar, “[w]hen he turned back toward me, it appeared I

seen a weapon, so I started shooting.” But Redding also testified that

he did not see what he said appeared to be a weapon until after he

                                  4
approached Varner at the bar door with his pistol drawn, and did

not feel threatened until Redding “first walked towards him.” The

detective in charge of the investigation testified that the video and

still frames showed nothing in Varner’s right hand and a cell phone

in his left hand. 4

      2. In Redding’s first enumeration of error, he contends that the

trial court erred in failing to give his requested charge on the defense

of mistake of fact under OCGA § 16-3-5, which provides: “A person

shall not be found guilty of a crime if the act or omission to act

constituting the crime was induced by a misapprehension of fact




      4 While Redding asserts in his brief that the detective acknowledged at
trial that a still frame from the video could depict Varner with an object in his
right hand, this statement is not accurate. On cross-examination, Redding
repeatedly attempted to elicit testimony from the detective that several still
frames from the video showed that Varner could have had a gun in his right
hand, but the detective denied it, saying that at most he could not see what
was in Varner’s right hand in several frames because that hand was not visible
at that moment. On redirect, the prosecutor played the video of the shooting
again, and the detective testified positively that there was nothing in Varner’s
right hand. Moreover, the video recordings and the still frames were displayed
for the jury and form part of the record on appeal. See Jones v. State, 

310 Ga.
886

, 889 (2) (855 SE2d 573) (2021) (jury viewed video of shooting, and video
did not suggest that appellant was in such danger as to reasonably believe it
was necessary to shoot the victim); Henderson v. State, 

310 Ga. 708

, 709-710
(1) (854 SE2d 523) (2021) (same).
                                       5
which, if true, would have justified the act or omission.” He cites this

Court’s decision in Pullin v. State, 

257 Ga. 815

(364 SE2d 848)

(1988), in which we held that because the trial court fully charged

the jury on justification and self-defense, Pullin was not entitled to

a charge on mistake of fact pursuant to OCGA § 16-3-5.

Id. at 817

(3).

       Redding urges that Pullin be overruled because, he claims, it

fails to provide any reasoning or discussion of the language of the

relevant Code section in support of its holding. 5 But Pullin is not the

origin of this holding, which has been relied upon by this Court and

the Court of Appeals in opinions dating back nearly half a century,

and we decline Redding’s invitation to overrule Pullin or this line of

cases.



       5Redding complains that “Pullin’s division 3 offered no reasoning at all,”
but that division actually referred specifically to the discussion of the “full and
fair” jury instructions on justification and self-defense in an earlier division of
the opinion. Moreover, Division 3 of the opinion cited Ellis v. State, 174 Ga.
App. 535 (330 SE2d 764) (1985), which cited numerous earlier decisions of this
Court and the Court of Appeals holding the mistake-of-fact instruction
substantially duplicative of a full and complete instruction on self-defense in
this context.

Id. at 536 (2).

                                        6

      Since 1965, 6 a series of decisions has held that a mistake-of-

fact instruction is not required, even upon request, if the “mistake”

or “misapprehension” alleged by the defendant is the belief that the

victim possessed a weapon or was about to use deadly force against

the defendant, so long as the trial court fully instructs the jury on

justification and self-defense, including analogous principles of

justification and reasonable belief. See, e.g., Jordon v. State, 

232 Ga.

749

, 754 (4) (208 SE2d 840) (1974) (not error to refuse charge on

mistake of fact when “trial judge fully charged on justifiable

homicide”); McClendon v. State, 

231 Ga. 47

, 48 (4) (199 SE2d 904)

(1973) (requested charge on mistake of fact not required when “court




      6 The Code of 1933, § 70-207, provided: “A new trial may be granted in
all cases when the presiding judge may deliver an erroneous charge to the jury
against such applicant on a material point, or refuse to give a pertinent legal
charge in the language requested, when the charge so requested shall be
submitted in writing.” In 1965, the General Assembly revised former Ga. Code
Ann. § 70-207, now OCGA § 5-5-24, removing the previous requirement that a
jury instruction requested in writing be given in the exact language requested.
See Ga. L. 1965, p. 18, § 17; see also Hardwick v. Price, 

114 Ga. App. 817

, 821
(3) (152 SE2d 905) (1966). Therefore “[t]he failure to give requested
instructions in the exact language requested, where the charge given
substantially covers the same principles, is no longer a ground for new trial.”
(Citations omitted.) Young v. State, 

226 Ga. 553

, 556 (5) (176 SE2d 52) (1970)
(citing Hardwick).
                                      7
fully covered the principles of justifiable homicide, and it was not

error to fail to charge in the exact language requested.” (Citation

omitted.)). Also, in Ellis v. State, 

174 Ga. App. 535

(330 SE2d 764)

(1985),the Court of Appeals relied upon both its decisions and those

of this Court to hold that the appellant was not entitled to a mistake-

of-fact charge when the trial court’s full charge on self-defense

included an instruction that “a person is legally justified in using

force against another when and to the extent that he reasonably

believes that such force is necessary to defend himself against such

other’s [imminent] use of unlawful force.” (Interpolation and

emphasis in original.)

Id. at 536 (2).

     This Court has continued to follow this line of cases after its

decision in Pullin. See, e.g., Winters v. State, 

303 Ga. 127

, 133 (III)

(810 SE2d 496) (2018) (holding that “mistake of fact is not separate

from a self-defense argument where the asserted mistake concerned

whether the victim was armed and the defendant’s use of force was

thus justified.” (Citation omitted.)); Daniel v. State, 

285 Ga. 406

, 411

(7) (677 SE2d 120) (2009) (mistake of fact not separate defense when

                                   8
alleged mistake “concerned whether the victim was armed, and

thus, whether [appellant] was justified in shooting first in self-

defense.” (Citations and punctuation omitted.)); Bell v. State, 

280

Ga. 562

, 567 (5) (b) (629 SE2d 213) (2006) (same); Slaughter v. State,

278 Ga. 896

, 896 (608 SE2d 227) (2005) (same).

     Here, considering the charge as a whole, see Powell v. State,

307 Ga. 96

, 100 (2) (a) (834 SE2d 822) (2019), the trial court did not

err in declining to give a mistake-of-fact instruction. The only

mistake of fact asserted by Redding was that he mistakenly believed

Varner had a gun, thus supporting his defense of justification by

self-defense. The trial court’s instructions included a lengthy series

of pattern jury instructions on justification and self-defense,

including language repeatedly instructing the jury on a defendant’s

“reasonable belief” with respect to the use of force in self-defense. A

mistake-of-fact instruction therefore was unnecessary, given the

trial court’s full and complete instructions on self-defense and

justification, and the trial court did not err in failing to give it on

request.

                                  9
     3. Redding asserts that the trial court committed plain error

when it failed to instruct the jury sua sponte that he had no duty to

retreat after the State questioned him about his testimony that he

left the bar and went to his car, asking why he did not leave if he

was afraid of Varner.

     To establish plain error, [Redding] must identify an error
     that was not affirmatively waived, was clear and not open
     to reasonable dispute, likely affected the outcome of the
     proceeding, and seriously affected the fairness, integrity,
     or public reputation of judicial proceedings.

(Citation omitted.) Thompson v. State, 

304 Ga. 146

, 151 (6) (816

SE2d 646) (2018). 7

     The relevant instruction says:

     One who is not the aggressor is not required to retreat
     before being justified in using such force as is necessary
     for personal defense or in using force that is likely to
     cause death or great bodily harm if one reasonably
     believes such force is necessary to prevent death or great
     bodily injury to oneself or a third person or to prevent the
     commission of a forcible felony.

(Emphasis supplied.) Georgia Suggested Pattern Jury Instructions,


     7 Redding acknowledges in his brief that he failed to request the charge
and raised no objection at trial, and that the plain error standard therefore
applies.
                                     10
Criminal Cases 3.10.13 (2020).

     Redding claims that his testimony regarding Varner’s earlier

threat to his cousin and Varner’s statement that he had a “MAC-10

on deck” was evidence that Varner was the “original aggressor.”

However, no evidence was presented that Varner had such a firearm

in his actual possession at the time.

     A person is justified in threatening or using force against
     another when and to the extent that he or she reasonably
     believes that such threat or force is necessary to defend
     himself or herself or a third person against such other’s
     imminent use of unlawful force. Furthermore, the
     doctrine of reasonable fear does not apply to any case of
     homicide where the danger apprehended is not urgent
     and pressing, or apparently so, at the time of the killing.

(Citations and punctuation omitted; emphasis in original.) Carter v.

State, 

285 Ga. 565

, 566 (2) (678 SE2d 909) (2009); see also OCGA §§

16-3-21, 16-3-23.1; Rammage v. State, 

307 Ga. 763

, 766-767 (2) (838

SE2d 249) (2020). Redding’s testimony that Varner threatened him

and his cousin earlier in the evening does not show imminent

danger. See 

Carter, 285 Ga. at 566-567

(2) (threat against

appellant’s relative 30 minutes before shooting insufficient to show


                                 11
appellant was in imminent danger from victim.)

     Nor does it show that Varner was an “aggressor” within the

meaning of OCGA § 16-3-21 (b). In Hoffler v. State, 

292 Ga. 537

(739

SE2d 362) (2013), we rejected a similar allegation that the trial court

committed plain error in failing to instruct the jury on retreat.

Id. at

542 (4).

At his trial, Hoffler testified that he and the victim had an

earlier argument, during which the victim pulled out a knife. Hoffler

backed away, and no physical fight occurred at that time, but Hoffler

obtained a gun from a friend and later the same day confronted the

victim and shot and killed him, although he claimed that the victim

once again displayed a knife.

Id. Noting that the

legal theory of no

duty to retreat requires that the person claiming self-defense not be

the original aggressor, this Court observed:

     Even though Hoffler claimed he saw a knife with blade
     exposed, he was wielding a loaded handgun and he did
     not testify that [the victim] threatened him verbally or
     lunged at him or in any way attempted a physical attack
     upon him. Indeed, the eyewitness accounts and the
     forensic evidence do not support a claim that [the victim]
     was the original aggressor.

(Punctuation omitted.)

Id. We concluded that

there was “no legal

                                  12
error, obvious or otherwise,” and Hoffler could not “make it past the

first prong of the plain error review.”

Id.

Similarly, Redding testified

that he and his cousin were

threatened by Varner earlier in the evening, but no confrontation

took place at that time. Instead, Redding acknowledged that he went

out to his car, retrieved a pistol, and approached Varner with his

pistol in hand before “[i]t appeared I seen a weapon.” While Redding

testified that Varner verbally threatened him, he acknowledged that

Varner turned away and ran into the bar, and that he pursued

Varner into the bar and shot him repeatedly. And in Redding’s case,

in addition to eyewitness accounts, the evidence includes multiple

video recordings of the incident, which also fail to support a claim

that Varner was the aggressor at the time of the shooting. No

evidence supports Redding’s claim that Varner was the aggressor,

and he therefore was not entitled to a jury instruction under OCGA

§ 16-3-23.1.

     This Court further held in Hoffler that even assuming that

some evidence existed that Hoffler was not the original aggressor,

                                  13
reversal was not required because his “defense of self-defense was

fairly presented to the jury, and the jury was fully instructed on the

law of justification and self-defense.” (Citation 

omitted.) 292 Ga. at

542-543

(4). As noted above, Redding’s claim of self-defense was

fairly presented to the jury, and the jury was also fully instructed in

the law of justification and self-defense. Redding therefore “has not

met his high burden of establishing plain error.” Knighton v. State,

310 Ga. 586

, 595 (2) (a) (853 SE2d 89) (2020).

     4. Redding also asserts that the trial court committed plain

error in instructing the jury to consider “intelligence” as a factor in

its assessment of witness credibility. The trial court gave the

following instruction:

     The jury must determine the credibility of the witnesses.
     In deciding this, you may consider all the facts and
     circumstances of the case, including the witnesses’
     manner of testifying, their intelligence, their means and
     opportunity of knowing the facts about which they testify,
     the nature of the facts about which they testify, the
     probability or improbability of their testimony, their
     interest or lack of interest in the outcome of the case, and
     their personal credibility as you observed it.

“In the case of a review for plain error, it is not sufficient to find

                                  14
actual legal error, as the jury instruction in question must have an

obvious defect rather than a merely arguable defect.” (Citations and

punctuation omitted.) Smith v. State, 

301 Ga. 79

, 81 (3) (799 SE2d

762) (2017).

     [T]his Court has previously reviewed jury charges where
     intelligence is given as a factor that may be considered
     with respect to witness credibility and found no reversible
     error where, as here, the court’s charge shows that the
     intelligence factor was not highlighted or singled out; as
     intelligence was just one of several factors which could be
     considered. Indeed, even assuming that the better
     practice is to omit intelligence as one of the factors in the
     credibility charge, its inclusion is not reversible error
     under the circumstances presented here. We find no
     reversible error, much less any “plain error,” in the jury
     instruction given by the trial court.

(Citations and punctuation omitted.)

Id. at 82 (3).

Similarly, we see

no plain error in the inclusion, without any particular emphasis or

comment, of these two words in the trial court’s jury instruction.

     5.   Redding    asserts   that    his   trial   counsel   provided

constitutionally ineffective assistance in four respects. To prevail on

his claim of ineffective assistance, Redding must prove both that the

performance of his lawyer was professionally deficient and that he


                                  15
was prejudiced by this deficient performance. See Strickland v.

Washington, 

466 U.S. 668

, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984). To prove deficient performance, he must show that his

attorney “performed at trial in an objectively unreasonable way

considering all the circumstances and in the light of prevailing

professional norms.” (Citation omitted.) Romer v. State, 

293 Ga. 339

,

344 (3) (745 SE2d 637) (2013). This requires a defendant to

“overcome the strong presumption that counsel’s performance fell

within a wide range of reasonable professional conduct, and that

counsel’s decisions were made in the exercise of reasonable

professional judgment.” (Citation and punctuation omitted.)

Marshall v. State, 

297 Ga. 445

, 448 (2) (774 SE2d 675) (2015). And

to prove prejudice, Redding “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” 

Strickland, 466 U.S. at 694

(III) (B). “If either Strickland

prong is not met, this Court need not examine the other prong.”

                                  16
Palmer v. State, 

303 Ga. 810

, 816 (IV) (814 SE2d 718) (2018). We

conclude that Redding’s counsel did not render ineffective assistance

for the reasons stated below.

      (a) Redding asserts that his trial counsel was ineffective in

“opening the door” to testimony regarding Redding’s calls from jail

by eliciting testimony from Redding that he regretted the shooting,

that he was sorry that it happened, and that he only shot Varner

because he feared for his life and that of his cousin. The State then,

over Redding’s counsel’s objection – which was denied because the

trial court concluded it was impeachment testimony – called the lead

detective in rebuttal to testify that he listened to Redding’s calls

from the jail and that in several calls Redding was laughing and

joking about the shooting. 8 Trial counsel again objected and moved

for a mistrial after the detective testified that Redding “never

appeared to be scared, nervous, or remorseful for the shooting, in my

opinion.” The motion for mistrial was denied, but the jury was

instructed to disregard the detective’s statement.


     8   Neither a recording nor a transcript of the calls was offered in evidence.
                                        17
     At the hearing on Redding’s motion for new trial, trial counsel

testified that he was aware of the jail calls but made a decision to

elicit an expression of regret from Redding in an attempt to make

Redding appear more sympathetic to the jurors, to emphasize that

Redding feared for his life, and to counter evidence that Redding had

threatened the victim and that the shooting was in revenge for the

earlier shooting of Redding’s cousin. Counsel testified that, given the

lengthy time Redding had been in jail, he believed that any

statements in a telephone conversation with a friend would have

been only casual remarks “in a light moment” that would not

contradict that Redding felt remorse and regret for what had

happened. Counsel further testified that he still believed that all of

the investigating officer’s testimony was objectionable and that the

trial court should not have admitted any of it.

     The trial court concluded that counsel had a strategic basis for

his questions to Redding, and that even though the strategy was not

successful, it was not professionally deficient. We agree.

     With the benefit of hindsight, it would appear that this

                                  18
     strategy may have backfired. But that is not to say that it
     was ineffective. Informed strategic decisions do not
     amount to inadequacy under Strickland. The fact that
     [Redding] and his . . . present counsel now disagree with
     the difficult decisions regarding trial tactics and strategy
     made by trial counsel does not require a finding that
     [Redding] received representation amounting to
     ineffective assistance of counsel.

(Citations and punctuation omitted.) Muller v. State, 

284 Ga. 70

, 73-

74 (3) (663 SE2d 206) (2008). In light of the evidence presented

against Redding, trial counsel’s strategic choices were limited, and

we cannot say that the decision to elicit this testimony requires a

finding of deficiency. Moreover, as the trial court also observed, the

evidence of Redding’s guilt was compelling, including multiple close-

range video recordings of the shooting itself, and Redding therefore

cannot show a reasonable probability that, but for the detective’s

testimony, the result at trial would have been different.

     (b) Redding also asserts that his trial counsel was ineffective

in failing to object to the prosecutor’s comments on Redding’s pre-

arrest silence and failure to come forward with evidence to law

enforcement. He relies upon the “bright-line rule” announced in


                                 19
Mallory v. State, 

261 Ga. 625

, 629-630 (5) (409 SE2d 839) (1991), but

that rule was abrogated by the adoption of Georgia’s current

Evidence Code, which was in effect at the time of Redding’s 2017

trial. See State v. Orr, 

305 Ga. 729

, 736 (2) (827 SE2d 892) (2019).

Acknowledging that Mallory no longer applies, Redding contends

that Orr permits appellants to “raise Mallory-style challenges to

evidence of a defendant’s pre-arrest silence,” and that trial counsel

should have done so. But Orr was decided in 2019, and at the time

of Redding’s trial the viability of Mallory remained unsettled. See

Williams v. State, 

302 Ga. 474

, 482 (IV) (a) (807 SE2d 350) (2017)

(“[T]rial counsel’s performance cannot be deemed deficient for not

raising an unsettled question of law.”).

     Before Orr, this Court held that, because the validity of
     Mallory was “subject to reasonable dispute,” trial counsel
     was not ineffective for failing to lodge an objection under
     that decision as it was an unsettled question of law. Now
     that we have squarely held that Mallory was abrogated
     by Georgia’s new Evidence Code, it is clear that a
     defendant cannot prevail on a claim of ineffectiveness on
     the basis that his trial counsel failed to rely on a case that
     was not applicable to his trial.

(Citations and punctuation omitted.) Jackson v. State, 

306 Ga. 266

,

                                  20
273 (5) (a) (830 SE2d 99) (2019). Redding cites no controlling

precedent that his trial counsel supposedly missed in not raising

“Mallory-style” challenges, and Redding therefore has failed to show

deficiency on the part of his trial counsel in this respect.

     (c) Redding next asserts that his trial counsel was ineffective

in failing to request a jury instruction on the lesser offense of

voluntary manslaughter. Voluntary manslaughter applies to

“circumstances which would otherwise be murder [when the

defendant] acts solely as the result of a sudden, violent, and

irresistible passion resulting from serious provocation sufficient to

excite such passion in a reasonable person.” OCGA § 16-5-2 (a).

     We have made clear that decisions as to which jury
     charges will be requested and when they will be requested
     fall within the realm of trial tactics and strategy. They
     provide no grounds for a new trial unless such tactical
     decisions are so patently unreasonable that no competent
     attorney would have chosen them.

(Citation and punctuation omitted.) Finnissee v. State, 

309 Ga. 557

,

560-561 (2) (847 SE2d 184) (2020).

     At the hearing on the motion for new trial, Redding’s trial


                                  21
counsel was asked why he did not ask for instructions on voluntary

manslaughter, and he responded that he did not do so because “the

facts of the case didn’t suggest that it was warranted. . . . It just

seems to me that under those facts, those charges, I don’t believe

they would have been given had they been requested.”

     [W]hile jury charges on self-defense and voluntary
     manslaughter are not mutually exclusive, the provocation
     necessary to support a charge of voluntary manslaughter
     is different from that which will support a claim of self-
     defense. The distinguishing characteristic between the
     two claims is whether the accused was so influenced and
     excited that he reacted passionately rather than simply
     in an attempt to defend himself. Only where this is shown
     will a charge on voluntary manslaughter be warranted. A
     charge on voluntary manslaughter is not available to a
     defendant whose own statement unequivocally shows
     that he was not angered or impassioned when a killing
     occurred, and when the other evidence does not show
     otherwise.

(Citations and punctuation omitted.) Tarpley v. State, 

298 Ga. 442

,

444-445 (3) (a) (782 SE2d 642) (2016). In his testimony, Redding

denied being angry at Varner; under cross examination by the State,

he denied the prosecutor’s suggestion that the video recording and

still frames showed “anger and determination,” stating, “It’s a


                                 22
normal look, ain’t it?” and that “[m]y mouth just open.”

     The other evidence presented tended to show that the shooting

was not done in self-defense but rather was motivated by

antagonism between Redding and Varner and their associates,

largely due to Redding’s belief that Varner had shot Redding’s

cousin weeks before. See Johnson v. State, 

297 Ga. 839

, 842-843 (2)

(778 SE2d 769) (2015) (voluntary manslaughter charge not

warranted in malice murder prosecution, despite defendant’s

allegation that he and victim had an antagonistic relationship,

including physical confrontations). See also Finley v. State, 

286 Ga.

47

, 49 (3) (a) (685 SE2d 258) (2009) (“[W]ords alone cannot constitute

serious provocation.” (Citation omitted.)). “As counsel articulated a

valid strategic decision regarding this instruction, failure to request

this charge is not ineffective assistance.” (Citation and punctuation

omitted.) Walker v. State, 

308 Ga. 33

, 42 (3) (e) (838 SE2d 792)

(2020).

     (d) Redding asserts that his trial counsel was ineffective in

failing to request a jury instruction that Redding had no duty to

                                  23
retreat. Trial counsel testified that, given that the video did not

show any aggressive action on Varner’s part and that Varner was

unarmed and was shot in the back, “[i]t just seems to me that the

facts likely weren’t there to talk about retreating and these sorts of

things under those circumstances.” As noted in Division 

3, supra

,

this instruction was not adjusted to the facts, and “[t]rial counsel

cannot be faulted for failing to request a jury charge that was not

authorized by the evidence.” (Citation and punctuation omitted.)

Barnes v. State, 

305 Ga. 18

, 21 (2) (b) (823 SE2d 302) (2019).

     (e) Finally, Redding asserts that the cumulative effect of the

trial court’s errors and ineffectiveness of his trial counsel deprived

him of a fair trial. See State v. Lane, 

308 Ga. 10

, 13-14 (1) (838 SE2d

808) (2020). But here, we have found no deficiency on the part of

trial counsel and no error on the part of the trial court, and Redding

therefore cannot show cumulative error. See Cox v. State, 

306 Ga.

736

, 743 (2) (e) (832 SE2d 354) (2019) (“[W]e evaluate only the effects

of matters determined to be error, not the cumulative effect of non-

errors.” (Citations and punctuation omitted.)).

                                  24
Judgment affirmed. All the Justices concur.




                           25

Add comment

By

Recent Posts

Recent Comments