Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Keener v. State

Supreme Court of Georgia

August 28, 2017



         Appellant David William Keener was convicted of felony murder and two counts of aggravated battery.[1] On appeal, he contends that trial counsel was constitutionally ineffective and that the trial court failed to apply the correct legal standard when considering his motion for new trial. Finding no error, we affirm.

         1. This appeal involves two trials; the first trial concerned victim Steven Yearwood (counts seven through nine), and the second trial involved victim Randall Huling (counts one through four). Appellant's claims on appeal relate only to the second trial, but we begin by examining the evidence adduced during each trial.

         (a) The Yearwood Trial

         Yearwood was a frequent visitor at a homeless encampment in Hall County, Georgia, where Appellant resided; in the week leading up to the incident in question, Yearwood had been asked by another resident to permanently leave the camp. Undeterred, Yearwood returned to the camp and ended up alone in the camp with Appellant. When other residents of the encampment returned, they observed that Yearwood - who was on his hands and knees - was being repeatedly kicked in the face by Appellant. Yearwood sustained numerous injuries as a result of the beating, including a split ear; the jury heard testimony that Yearwood's ear was later "sewn up" by Appellant as Yearwood screamed in protest. Appellant testified on his own behalf, claiming that he acted in self defense. The jury found Appellant guilty of two counts of aggravated battery.

         (b) The Huling Trial

         On August 14, 2014, Huling was drinking alcohol behind a liquor store in Hall County, Georgia. At some point that morning, Huling was first involved in an altercation with James Wise. The altercation between Wise and Huling involved little more than an argument and a shove; though Huling was reportedly found on the ground following the altercation, he remained ambulatory and coherent. As the day progressed, more individuals congregated in the area to drink, and Appellant was seen in the vicinity during this time. Witness Pestos Charlie, who was amongst those who had gathered to drink, observed Appellant and Huling get into a physical altercation. Fearing that he would be drawn into the fight, Charlie walked away and, from a considerable distance, observed Appellant repeatedly slam Huling's head into a guardrail. The next morning, Huling was discovered supine in a ditch behind the guardrail; Huling was incoherent, naked from the waist down, and missing shoes. A medical examiner testified that Huling suffered a fracture at the base of his skull and a resulting "contrecoup" brain injury, which occurs when the brain strikes the skull in response to a blow to the head. According to the medical examiner, Huling's injuries were consistent with his head striking a guard rail, and Huling died as a result of blunt force trauma.

         The State also presented testimony that Appellant, while in pretrial detention, had admitted to a fellow detainee that he had smashed Huling's head into the guardrail three times and, further, that Charlie had witnessed the assault.

         In his defense, Appellant presented the testimony of a medical doctor with a specialty in forensic pathology. The expert testified that, though Huling died from blunt force trauma to the head, those injuries were caused by a fall during which he struck his head from behind. The jury found Appellant guilty of counts one through four.

         (c) Though Appellant does not challenge the legal sufficiency of the evidence supporting his convictions in both trials, 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 Appellant 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).

         2. Appellant contends that Pestos Charlie made statements in an interview with investigators that were inconsistent with his trial testimony and that trial counsel was ineffective for failing to impeach Charlie with those prior inconsistent statements. We disagree.

         In order to prevail on his claim that trial counsel was ineffective, Appellant must show 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). To prove deficient performance, one 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). In reviewing counsel's performance, we "must 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)). Accordingly, "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). With respect to the second Strickland prong, "to show that he was prejudiced by the performance of his lawyer, [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).

         Appellant contends that Charlie, in a recorded interview with investigators, inaccurately described Huling's race and physical appearance and gave a different account of how Appellant slammed Huling's head into the guardrail; according to Appellant, trial counsel should have used these prior inconsistent statements to impeach Charlie. During the motion for new trial hearing, the two attorneys who represented Appellant gave conflicting assessments of the adequacy of Charlie's cross-examination. However, as we have previously emphasized, because Strickland's standard for deficient performance is an objective one, "'hindsight has no place in an assessment of the performance of trial counsel, ' and a lawyer second-guessing his own performance with the benefit of hindsight has no significance for an ineffective assistance of counsel claim." (Citation omitted.) Shaw v. State, 292 Ga. 871, 876 (3) (a) n.9 (742 S.E.2d 707) (2013).

         As an initial matter, Charlie's video-recorded interview is, at best, muddled. As one of Appellant's trial counsel testified at the motion for new trial hearing - and as our own review of the interview confirms - it is exceedingly difficult to understand Charlie's speech and to follow his account of the day in question. It is not at all clear from the interview whether Charlie incorrectly described Huling or if he was simply referencing another person present at the scene; likewise, it is not at all obvious, as ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.