Neddrick Green was charged along with Jeremy Reynolds, Jr.
and Allen Williams for the malice murder of Barry
Bullard. Green and Reynolds (who was also charged
with possession of cocaine) were tried together and found
guilty. Green now appeals, asserting that he received
ineffective assistance of counsel. For the following reasons,
in the light most favorable to the verdict, the evidence at
trial showed the following. The victim, Green, and Williams
were friends who grew up together, and Reynolds "had
just started hanging with" the three of them. At some
point, the victim and Williams had had an argument or "a
beef" because Williams believed the victim had stolen a
gun from him. On July 30, 2008, Williams repeatedly drove by
the victim's home with a frown on his face. As a witness
explained, Williams "was riding through mugging or
whatever." The victim's friend knocked on the
victim's door to tell him that Williams was driving by
his home "mean mugging." The victim came outside
with a "big gun" and kept it at his side.
point, Williams parked his car across the street from the
victim's apartment. Green, who was riding in the back
seat of Williams's car, got out and retrieved a
"long gun." Green got back in the car and the men
drove up to the victim's apartment, got out holding guns,
and approached the victim. Green and Williams exchanged words
with the victim and his friend while Reynolds was leaning
against the hood of a car. Williams and Green then began
punching the victim in the face while attempting to take his
gun. The victim responded by telling the men to
"chill." As Williams and Green began to walk off,
Reynolds walked up to the victim and shot him in the face.
The victim fell but got up and exchanged gunfire with the
three men, but died shortly thereafter.
Green does not challenge the sufficiency of the evidence to
sustain his conviction. Nevertheless, as is this Court's
practice in murder cases, we have reviewed the evidence
summarized above and conclude that it was sufficient to
authorize a rational jury to find Green guilty beyond a
reasonable doubt as a party to the crime of malice murder.
Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979); OCGA § 16-2-20 (defining
parties to a crime).
Green argues that he was denied his right under the
Constitution to effective assistance of counsel. To succeed
on a claim that counsel was constitutionally ineffective,
Green must show both that his attorney's performance was
deficient, and that he was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687 (III)
(104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). Under the first
prong of this test, counsel's performance will be found
deficient only if it was objectively unreasonable under the
circumstances and in light of prevailing professional norms.
Id. at 688-690 (III) (A). And under the second
prong, prejudice is demonstrated only where there is a
reasonable probability that, absent counsel's errors, the
result of the trial would have been different. A
"reasonable probability" is defined as "a
probability sufficient to undermine confidence in the
outcome." Id. at 694 (III) (B). "Failure
to satisfy either prong of the Strickland test is
sufficient to defeat a claim of ineffective assistance, and
it is not incumbent upon this Court to examine the other
prong." (Citation and punctuation omitted.) Smith v.
State, 296 Ga. 731, 733 (2) (770 S.E.2d 610) (2015). And
"although both the performance and prejudice components
of an ineffectiveness inquiry involve mixed questions of law
and fact, a trial court's factual findings made in the
course of deciding an ineffective assistance of counsel claim
will be affirmed by the reviewing court unless clearly
erroneous." (Citation omitted.) Id.
Green asserts that although it may have run counter to trial
counsel's principal trial strategy that he was present
but not a party to the crime, counsel should have pursued
instructions on mutual combat or self-defense because
"[i]t is permissible to rely upon two seemingly
authorize a requested jury instruction, there need only be
slight evidence supporting the theory of the charge. Whether
the evidence presented is sufficient to authorize the giving
of a charge is a question of law. It is not error to refuse a
justification charge where there is no evidence to support
it." (Citations and punctuation omitted.) Hicks v.
State, 287 Ga. 260, 262 (2) (695 S.E.2d 195) (2010).
Green argues that evidence of "bad blood" between
the parties, evidence that the building behind him was
"shot up" during the fight, and evidence that the
victim was carrying a gun, show that mutual combat applies
here. But "[a] charge on mutual combat generally is
proper when there is evidence of a mutual intention or
agreement to fight." (Citation and punctuation omitted.)
Johnson v. State, 300 Ga. 665, 669 (4) (c) (797
S.E.2d 903) (2017). There is no evidence that the victim had
an intention to fight Green. Rather the evidence showed that
the "beef" was between the victim and Williams,
that the victim came out with the gun after being told that
Williams was driving by his home, but kept it by his side and
did not attempt to use it even while Williams and Green
punched him in the face, and that the victim exchanged
gunfire with Green, Williams, and Reynolds only after being
shot. See Carruth v. State, 290 Ga. 342, 348-349 (6)
(721 S.E.2d 80) (2012) (charge on mutual combat not
authorized by the evidence showing either unprovoked fist
fight or ambush by defendant).
trial counsel could not render ineffective assistance for
failing to request charges that would not have been adjusted
to the evidence, Green has failed to make the necessary
showing to establish constitutionally ineffective assistance
Green asserts that trial counsel was ineffective in failing
to seek severance of his trial from that of his co-defendant
Reynolds. "Whether to seek severance is a matter of
trial strategy, and in the absence of evidence to the
contrary, counsel's decisions are presumed to be
strategic and thus insufficient to support an ineffective
assistance of counsel claim." (Citations and punctuation
omitted.) Lupoe v. State, 300 Ga. 233, 241 (2) (c)
(794 S.E.2d 67) (2016); see also OCGA § 17-8-4
(procedure for jointly indicted defendants). Moreover, if
severance had been requested, Green would have had the
"burden of making a clear showing of prejudice and a
denial of due process in the absence of severance."
(Citation and punctuation omitted.) Adkins v. State,
279 Ga. 424, 426 (3) (614 S.E.2d 67) (2005).
asserts that it was not possible for the jury to separate the
facts because the evidence against Reynolds was stronger as
it showed Reynolds had the gun used to kill the victim and
was facing an additional charge - possession of cocaine. But
"the mere fact that the case against one defendant was
stronger than the case against the other does not necessitate
a separate trial." (Citations and punctuation omitted.)
Moon v. State, 288 Ga. 508, 510 (2) (705 S.E.2d 649)
(2011). Green points to no evidence with regard to the murder
that would have been excluded had his severance motion been
granted and he were tried alone. Butler v. State,
290 Ga. 412, 413 (2) (721 S.E.2d 876) (2012). He "was
being tried under the theory that he was a party to the
crime[ ] and there was ample evidence to show that he was a
party to the crime[ ]. Where, as here, there is sufficient
evidence of a 'common scheme or plan' to commit . . .
[a] criminal offense[ ], joinder is authorized and severance
is not mandatory." (Citations and punctuation omitted.)
Id. at 414 (2).
evidence of Reynolds' drug possession clearly did not
directly implicate Green as the evidence showed that the
drugs were found in a plastic bag in Reynolds' mouth.
Although the trial court did not specifically instruct the
jury that the possession evidence "could be considered
only against" Reynolds, see Billings v. State,
293 Ga. 99, 106 (6) (745 S.E.2d 583) (2013), the court made
it clear to the jury that "Mr. Reynolds and only Mr.
Reynolds" was charged with possession of cocaine.
counsel's decision not to seek severance is presumed
strategic. Even if counsel had filed a motion to sever, the
court would not have abused its discretion in denying the
motion as Green would not have been able to show prejudice
from the joint trial. See Lupoe, supra, 300 Ga. at
242-243 (2) (c); Glenn v. State, 279 Ga. 277, 279
(2) (c) (612 S.E.2d 478) (2005) (because defendant could not
show joint trial caused him harm, defense counsel not