by Douglas Ankney

On February 10, 2020, the Supreme Court of Georgia unanimously ruled that reviewing courts are to consider the cumulative effect of trial court and counsel errors, overturning 50 years of prior jurisprudence.

At Antiwan Lane’s murder trial, Kevin Stallworth testified that Lane hired him to kill Hector Gonzalez for $10,000 after Lane had initially tried to hire Eddie Davis to do the deed. Stallworth mistakenly shot and killed Ivan Perez. After the murder, Lane refused to pay Stallworth because he had killed the wrong man.

Detective Delima testified, without objection, that an informant told him the shooting was a murder-for-hire. Delima also testified, over defense counsel’s objection, that Davis, “confirmed” that Lane had initially tried to hire him to kill Gonzalez.

Stallworth’s girlfriend, Brittany Thompson, testified, over defense’s objection, that Stallworth told her on the date of the murder, “I’m going to do it. He want me to do it, I’m going to kill him, I’m going to get the money.” Again over counsel’s objection, Thompson testified that Stallworth told her after the murder that Lane did not pay him because he shot the wrong person. The trial court overruled defense’s objections, ruling that Thompson’s repeating of Stallworth’s statements wasn’t hearsay under OCGA § 24-8-801(d)(2)(E) because Stallworth’s statements were made in furtherance of a conspiracy.

After Lane was found guilty, the trial court granted his motion for a new trial. The court found that Lane’s counsel was ineffective for, among other things, (1) failing to introduce evidence that showed Delima lied when he testified that Davis had “confirmed” Lane had initially tried to hire him to kill Gonzalez and (2) for failing to object to hearsay and bolstering testimony by Delima.

The trial court also granted the motion on the ground that it had erred when it allowed Thompson to testify as to Stallworth’s statements to her. The State appealed, arguing that none of the errors resulted in sufficient prejudice to warrant reversal.

The Georgia Supreme Court observed that the Court considers the cumulative effect of counsel’s errors when deciding claims of ineffective assistance of counsel because the Supreme Court of the United States (“SCOTUS”) requires it. Strickland v. Washington, 466 U.S. 668 (1984). But the Georgia Supreme Court had “said repeatedly that ‘this State does not recognize the cumulative error rule’ — meaning we do not consider the collective prejudicial effect of multiple errors by the trial court, or the collective prejudicial effect of trial court error and ineffective assistance of counsel.” Grant v. State, 824 S.E.2d 255 (Ga. 2019).

This rule came from a civil case, Hess Oil & Chem. Corp. v. Nash, 177 S.E.2d 70 (Ga. 1970), that did not say anything about the proper standard for granting a new trial in criminal cases, the Court explained. In fact, the Court stated that it is unable “to identify any legal principle — let alone a compelling, reasoned explanation — behind our existing rule….” It noted that the rule “appears to have been based on the notion that” there’s no way to add up individual errors and determine their cumulative effect.

The Court rejected that rationale, stating “although consideration of the combined prejudicial effects of different types of errors may sometimes be more challenging than considering errors in isolation, it certainly is not impossible.” Finding that Hess Oil’s reason for not considering the cumulative effect of errors is no longer valid, the Court also was persuaded by the fact that all the federal circuits, as well as sister states of Alabama, Tennessee, and Florida do consider the cumulative prejudicial effect of trial court and ineffective assistance of counsel errors. (See opinion for citations of supporting cases from each federal circuit and sister states.)

Furthermore, SCOTUS explicitly requires prejudice from cumulative errors be considered when deciding claims that prosecutors withheld evidence favorable to the defense. Kyles v. Whitley, 514 U.S. 419 (1995). Because the Court concluded that there is no good rationale for the rule prohibiting courts from considering the cumulative effect of errors, it overruled all its prior decisions and those of the Court of Appeals that held the cumulative effect cannot be considered. (The Court cited over 50 specific cases in the decision’s appendix that were overruled, along with the caveat that this was not an exhaustive list.) 

The Court stated that “weighing prejudice cumulatively is simply a natural implication of the harmless-error doctrine.” United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990). The appropriate legal standard for harmless error depends upon the type of error claimed. Cargle v. Mullins, 317 F.3d 1196 (10th Cir. 2003). The burden is on the defendant to identify to the reviewing court the type of error and explain how the error resulted in prejudice. Id. Ineffective assistance of counsel requires a defendant to show a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland. A nonconstitutional trial court error is harmless if the state shows it is “highly probable that the error did not contribute to the verdict.” Bannister v. State, 830 S.E.2d 79 (Ga. 2019). This requires consideration of the other evidence heard by the jury. Id.

Turning to the present case, the Court agreed with the trial court that Lane’s counsel was deficient for failing to object to Delima’s bolstering and hearsay testimony and for failing to present evidence that Delima had lied about Davis. Because these errors served to corroborate Stallworth’s testimony — as did Thompson’s testimony, there was a reasonable probability that, absent counsel’s errors, the result would have been different. Likewise, Thompson’s testimony corroborated Stallworth’s testimony. Since Stallworth had reason to put blame on Lane, his credibility was diminished.

The State’s case centered on Stallworth’s credibility, so the State could not show it was highly probable Thompson’s testimony didn’t contribute to the verdict — especially considering defense counsel’s errors regarding Delima.

Accordingly, the Court affirmed the trial court’s decision granting Lane’s motion for a new trial. See: State v. Lane, 2020 Ga. LEXIS 98 (2020). 

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