Deron Williams was convicted of malice murder and related
offenses in connection with the bludgeoning death of Decarla
Lomax. On appeal, Williams argues that the trial
court erroneously admitted the record of his first-offender
plea, that he is entitled to a new trial because of a
discovery violation, that his trial counsel was ineffective,
and that he was improperly sentenced as a recidivist. Though
we find no reversible error with respect to Williams'
trial, we agree that the trial court erred in regard to
in a light most favorable to the verdicts, the evidence
adduced at trial established as follows. Williams and Lomax
had a years-long on-again, off-again romantic relationship,
during which Williams threatened and assaulted Lomax on
numerous occasions. The jury heard extensive testimony
concerning the tumultuous and violent relationship and also
learned that, in the months leading up to the murder,
Williams had threatened to kill Lomax. On the day of the
murder, Williams traveled with Lomax to Cobb County where she
was in the process of moving out of a mobile home. According
to Williams' trial testimony, the pair argued and he
"blacked out" after the victim stated that she was
sleeping with other men. Williams testified that he remembers
strangling her and hitting her approximately four times with
a hammer. After fleeing the residence in Lomax's vehicle,
Williams contacted various family members and indicated that
he had "accidentally" killed Lomax. The victim was
discovered dead in the Cobb County mobile home; her death was
ruled a homicide caused by blunt-force trauma to the head.
The murder weapon was never recovered.
Though Williams does not challenge the legal sufficiency of
the evidence supporting his conviction, we have reviewed the
record and conclude that the evidence as summarized above was
sufficient to enable a rational trier of fact to conclude
beyond a reasonable doubt that he was guilty of the crimes of
which he was convicted. See Jackson v. Virginia, 443
U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
discussed above, the jury heard numerous accounts of violent
incidents between the parties; one such account came from
James Ryan, a close friend of Lomax. Ryan testified without
objection that in July 2008, years before Lomax was murdered,
Williams attacked Lomax with a hammer and choked her. The
jury learned that the attack left Lomax in the hospital and
that Williams was later arrested as a result of the incident.
During cross-examination, defense counsel elicited testimony
from Ryan that Lomax had "requested that the charges be
dismissed." In response, the State successfully moved
the trial court to admit a certified copy of Williams'
first offender plea to the charges arising out of the
incident, namely aggravated assault and battery. On appeal,
Williams continues to argue that the certified copy of the
first offender plea was inadmissible because it was not a
"conviction." We conclude, however, that there is
no reversible error.
admission of evidence is committed to the sound discretion of
the trial court, and the trial court's decision whether
to admit or exclude evidence will not be disturbed on appeal
absent an abuse of discretion. See Young v. State,
297 Ga. 737 (2) (778 S.E.2d 162) (2015).
Court has explained before, "[a] first offender's
guilty plea does not constitute a 'conviction' as
that term is defined in the Criminal Code of Georgia."
(Citations omitted.) Davis v. State, 269 Ga. 276,
277 (496 S.E.2d 699) (1998). As such,
the first offender record of one who is currently serving a
first offender sentence or of one who has successfully
completed the first offender sentence may not be used to
impeach the first offender on general credibility grounds
(i.e., by establishing that the first offender has been
convicted of a felony or crime of moral turpitude) because no
adjudication of guilt has been entered.
Id. It does not follow, as Williams seems to
suggest, that a first offender plea is never
admissible as impeachment evidence. Indeed, this Court has
recognized that a first offender record is admissible as
impeachment evidence to disprove or contradict facts so that
a jury is not misled by false or deceiving testimony.
Id. See also Carruth v. State, 290 Ga. 342
(5) (721 S.E.2d 80) (2012) (first offender record admissible
to impeach defendant who claimed he was innocent of the
charges underlying the first offender plea). This conclusion
is consistent with long-standing law that "a witness may
be impeached by disproving facts to which he has
testified." Scruggs v. State, 253 Ga.App. 136,
136 (558 S.E.2d 731) (2001). See also former OCGA
§ 24-9-82. Under the doctrine of impeachment by
contradiction, "[e]ven evidence that would be
inadmissible if offered to impeach the defendant's
character may be admissible to impeach the veracity of a
witness, " Scruggs, 253 Ga.App. at 136, and a
witness may be impeached on a collateral issue which is only
indirectly material to the issue in the case. See Howell
v. State, 330 Ga.App. 668 (1) (b) (769 S.E.2d 98)
(2015). Here, the State was not using the first offender plea
record as evidence of the defendant's character or to
impeach the defendant on general credibility grounds.
Instead, the State sought to utilize the first offender plea
record to challenge the veracity of Ryan's
testimony, namely the alleged implication that the 2008
charges had been dismissed. See Krebsbach v. State,
209 Ga. 474 (1) (433 S.E.2d 649) (1993) (evidence of
defendant's prior conviction for DUI admissible to
impeach defendant's father who testified that none of his
children, including Appellant, would drive if they had been
drinking). Because the State was attempting to impeach
Ryan by contradiction, it is immaterial that the
first offender plea does not constitute a conviction. Cf.
Williams v. State, 171 Ga.App. 927 (2) (321 S.E.2d
423) (1984) (juvenile arrest record admissible to impeach by
contradiction). It is unclear, however, whether Ryan's
testimony that the victim requested that the charges
be dismissed is contradicted by the first offender plea
record that was adduced by the State. In any event, even if
the trial court abused its discretion in admitting the plea
record, the ruling does not rise to the level of reversible
error. As referenced above, the jury heard extensive
testimony concerning incidents in which Williams had
assaulted Lomax, and the jury was aware that Williams had
been arrested in connection with the 2008 incident; further,
the evidence that Williams killed Lomax was overwhelming. See
Davis, 269 Ga. at 279 ("While it was error to
admit the evidence that appellant had entered a guilty plea
to the earlier charge, that error does not constitute
reversible error in light of the overwhelming evidence of
appellant's guilt and the cumulative nature of the
erroneously-admitted evidence."). Accordingly, any error
was harmless, and Williams is not entitled to relief.
During trial, while discussing his autopsy of Lomax, the
medical examiner gave his conclusions and opinions regarding
the timing and nature of Lomax's wounds, including the
positioning of her body when she suffered the respective
blows. This information was ostensibly provided to the State
before trial commenced, but it was neither provided to the
defense by the district attorney in written form nor was it
relayed by the medical examiner when he was interviewed by
trial counsel. Williams argues on appeal - as he did for the
first time in his motion for new trial - that he is entitled
to a new trial because the State failed to comply with its
discovery obligations under OCGA § 17-16-4 (a) (4) to
provide him with a written iteration of the medical
examiner's opinions. We disagree.
at any time during the course of the proceedings it
is brought to the attention of the court that the state has
failed to comply with the requirements of this article, the
court may order [relief]." (Emphasis supplied.) OCGA
§ 17-16-6. Here, pretermitting whether the State did, in
fact, violate its discovery obligations, Williams'
failure to assert a discovery violation during trial deprived
the trial court of an opportunity to evaluate the alleged
discovery violation and, if necessary, fashion a remedy. See
Garrett v. State, 285 Ga.App. 282 (1) (645 S.E.2d
718) (2007). Accordingly, this claim is waived, id.,
is not subject to plain error review, see Durham v.
State, 292 Ga. 239 (2) (734 S.E.2d 377) (2012).
Williams also argues that trial counsel rendered ineffective
assistance when she failed to act once she realized that the
State had violated its discovery obligations. According to
Williams, though counsel thoroughly reviewed discovery and
met with the medical examiner, her failure "to respond,
request a continuance, get an expert to refute the medical
examiner's testimony, or to request a mistrial"
after she realized the discovery violation left Williams
"without support for his defense" and
"destroyed trial counsel's strategy." There is
no merit to this argument.
axiomatic that Williams may only succeed on this claim if he
demonstrates both that counsel's performance was
deficient and that the deficient performance was prejudicial.
See Terry v. State, 284 Ga. 119, 120 (2) (663 S.E.2d
704) (2008). With respect to deficient performance, Williams
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." Romer v. State, 293 Ga. 339, 344 (3)
(745 S.E.2d 637) (2013). When reviewing counsel's
performance, we "apply a 'strong presumption'
that counsel's representation was within the 'wide
range' of reasonable professional assistance."
Harrington v. Richter, 562 U.S. 86, 104 (131 S.Ct.
770, 178 L.Ed.2d 624) (2011) (quoting Strickland v.
Washington, 466 U.S. 688, 689 (104 S.Ct. 2052, 80
L.Ed.2d 674) (1984)). As such, "a tactical decision will
not form the basis for an ineffective assistance of counsel
claim unless it was 'so patently unreasonable that no
competent attorney would have chosen it.'" (Citation
omitted.) Brown v. State, 288 Ga. 902, 909 (708
S.E.2d 294) (2011). Regarding the second Strickland
prong, in order "to show that he was prejudiced by the
performance of his lawyer, [an appellant] must prove '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.'" Arnold v. State, 292 Ga. 268,
269 (2) (737 S.E.2d 98) (2013) (quoting Strickland,
466 U.S. at 694). "If an appellant fails to meet his or
her burden of proving either prong . . . the reviewing court
does not have to examine the other prong." Rector v.
State, 285 Ga. 714, 716 (6) (681 S.E.2d 157) (2009).
the record supports the trial court's conclusion that,
though counsel was caught "flatfooted" by the
medical examiner's unexpected testimony, trial counsel
did not, as Williams suggests, fail to respond. Instead, she
engaged in a probing and effective cross-examination of the
physician, highlighting the fact that the medical
examiner's conclusions were not found in his autopsy
report, questioning the physician in such a way as to imply
that his "newfound" conclusions were not his own,
and emphasizing that the physician's conclusions were
limited as they were based on photographs that were supplied
by others. Additionally, as the trial court correctly
recognized below, trial counsel's cross-examination of
the medical examiner actually furthered the defense
theory that Lomax was killed in the heat of passion during an
argument. Trial counsel elicited testimony that the mortal
blows occurred in rapid succession and that, though Lomax
suffered injuries to her face, there were no injuries to the