found Truseno Al Neely guilty of malice murder and possession
of a firearm in the commission of a felony in the shooting
death of Shelton Lee Brooks. His amended motion for new trial
was denied, and he appeals, asserting insufficiency of the
evidence and ineffective assistance of counsel. For the
reasons that follow, we affirm.
to support the jury's verdict, the evidence shows that
Neely, who lived in Florida, was visiting his aunt in
Quitman, Georgia. On November 4, 2011, Kevin Fountain
co-defendant, met Neely at his aunt's house and
they drove back and forth to Valdosta several times. Fountain
was wearing all black clothes, and Neely was wearing a
camouflage jacket. Neely's aunt identified the camouflage
jacket taken by police from her house as Neely's.
testified that he and Neely stopped at a convenience store,
where they saw Brooks. Videotape from the convenience store
showed all three individuals; Fountain was dressed in black
and Neely was wearing a camouflage jacket. Brooks asked
Fountain for a ride home; in exchange for the ride, Brooks
promised to give them marijuana.
they arrived at Brooks' apartment, Brooks said he did not
have any marijuana and would "have to call someone to
bring it." Neely became angry and struck Brooks multiple
times in the face, knocked him to the floor, and kicked him
in the face. Fountain testified that he attempted to leave,
but Neely threatened him with a gun. At Neely's
insistence, Fountain helped him search the apartment for
marijuana but could not find any. Neely then shot Brooks in
the head. Neely and Fountain left the apartment, but Neely
sent Fountain back into the apartment for a sock that had
come off his hand; afterwards, they returned to his
medical examiner testified that Brooks' injuries were
consistent with having been struck multiple times about both
sides of the head and face at least 15 minutes before his
death, a blunt force injury where he was struck with the
muzzle of a gun, and a single contact gunshot wound that
caused his death.
next-door neighbor heard "a bunch of fighting" in
Brooks' apartment, but never heard a gunshot. She kept a
lookout to see who would leave Brooks' apartment, and saw
two males - one in a camouflage jacket holding a gun, and the
other "wearing all black." She saw the man dressed
in black go back up to the apartment, then return. Both men
got into "a dark blue or black Honda Prelude with a
scoop on the back, " backed out with the lights off, and
drove away. At trial, she identified both Fountain and
Neely as the individuals she saw leaving the apartment. The
police investigation led to Fountain and then to Neely, who
was discovered hiding in the back of a car. Neely was
arrested and agreed to talk with investigators. In his
interview, Neely denied meeting Brooks or knowing who he was,
denied that he went to the apartments where Brooks lived, and
claimed that he and Fountain went back and forth between
Quitman and Valdosta several times that evening before he
went to see his girlfriend in Tallahassee early the next
took the stand and testified in his own defense. He denied
knowing Brooks, but said Brooks offered to sell marijuana to
him, and that Fountain insisted that they go to Brooks'
place to complete the transaction. He claimed that Fountain
went upstairs while he stayed in the car, and that when he
did go upstairs Fountain told him to go back to the car, so
he never went into Brooks' apartment. He also testified
that Fountain had a .45 caliber pistol. He admitted that he
had lied to law enforcement about his whereabouts at the time
of the murder.
Neely argues that the evidence was insufficient to support
his convictions, because the State's case was
"completely circumstantial" and did not exclude
every other reasonable hypothesis except that of Neely's
guilt. The record, however, does not support this claim.
[U]nder OCGA § 24-14-6, questions as to the
reasonableness of hypotheses are generally to be decided by
the jury which heard the evidence and where the jury is
authorized to find that the evidence, though circumstantial,
was sufficient to exclude every reasonable hypothesis save
that of guilt, that finding will not be disturbed unless the
verdict of guilty is insupportable as a matter of law.
(Citation and punctuation omitted.) Smiley v. State,
300 Ga. 582, 586 (1) (797 S.E.2d 472) (2017). Here, an
eyewitness identified Neely as the man leaving Brooks'
apartment wearing a camouflage jacket and with a gun in his
hand. Video from the convenience store at the time Neely and
Fountain encountered Brooks showed Neely wearing a camouflage
jacket, and the same or a similar jacket was later given to
police by his aunt. And Neely's own testimony placed him
at the scene, while he initially denied having been present
and attempted to hide from police. Questions of witness
credibility are for the jury to decide. Lewis v.
State, 298 Ga. 889, 890 (1) (785 S.E.2d 520) (2016). The
evidence was sufficient to support Neely's convictions
under Jackson v. Virginia, 443 U.S. 307 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979).
Neely claims that his trial counsel was ineffective in
failing to call a number of witnesses; he contends they would
have testified that Fountain was seen with a firearm around
the time of the murder.
prevail on a claim of ineffective assistance, Neely must
prove both that the performance of his lawyer was deficient
and that he was prejudiced by this deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (III)
(104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To prove that the
performance of his lawyer was deficient, he must show that
his lawyer performed his duties at trial in an objectively
unreasonable way, considering all the circumstances, and in
the light of prevailing professional norms. Id. at
687-688 (III) (A). See also Kimmelman v. Morrison,
477 U.S. 365, 381 (II) (C) (106 S.Ct. 2574, 91 L.Ed.2d 305)
(1986). And to prove that he was prejudiced by the
performance of his lawyer, Neely must show "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, supra, 466 U.S. at 694 (III) (B). See
also Williams v. Taylor, 529 U.S. 362, 391 (III)
(120 S.Ct. 1495, 146 L.Ed.2d 389) (2000). This burden is a
heavy one, see Kimmelman, 477 U.S. at 382 (II) (C),
and Neely has failed to meet it.
argues that "numerous witnesses" could have
testified on his behalf that Fountain was seen with a gun
"in close proximity of time to the murder." His
appellate counsel examined trial counsel at length regarding
various individuals who were identified as witnesses by the
State or were interviewed by law enforcement during the
investigation, as shown by summaries of the interviews in the
record. According to these summaries, some individuals stated
that Fountain displayed a pistol before or after ...