Frank Henderson was convicted of felony murder and related
offenses in connection with the beating death of Monica
Davis. On appeal, Appellant contends that this
Court should grant him a new trial, that trial counsel was
ineffective, and that the trial court erred in admitting
certain testimony. Finding no error, we affirm.
the record in a light most favorable to the verdicts, the
evidence adduced at trial established as follows. In
September 2004, Davis and her longtime friend, Phyllis Ann
Thompson, were parked at a gas station in Fulton County. The
pair, both "renegade prostitutes, " were there so
that Davis could meet her boyfriend, Darryl Daniels. While
the women waited, Appellant, a pimp known to operate in the
area, repeatedly drove by very slowly with a menacing
expression on his face; also in the vehicle were Tiffany
Turner and a number of other prostitutes who worked for
point, Appellant's vehicle stopped in the parking lot,
and Appellant went to speak with Thompson. Davis, however,
reciprocated Appellant's threatening glares;
consequently, Appellant indicated to Turner that she should
start an altercation with Davis. Turner exited
Appellant's vehicle and threw a pink stiletto-heel shoe
at Davis, hitting her. Davis exited her vehicle and ended up
in a physical altercation with Turner and two other
prostitutes who worked for Appellant; numerous witnesses
testified that Appellant repeatedly yelled at the women in
his employ to "get" or "kill" Davis. The
fight eventually subsided, but Appellant gave Turner a second
signal and again told her to "get" Davis; a witness
walking by the scene testified that she heard Appellant tell
Turner to "get in the car and hit" Davis. Turner
testified that, following Appellant's instructions, she
got behind the wheel of the vehicle and drove toward Davis,
hitting her and running her over a number of times. Appellant
and his entourage fled the scene in the vehicle, and Davis
later died as a result of the blunt-force trauma.
was eventually taken to the police precinct by
Appellant's mother, Diadra Nelson, who had rented the
vehicle in question. While Turner was waiting to speak with
an investigator, Appellant contacted Turner through his
mother and instructed Turner to inform investigators that he
was at a different location at the time of the incident. When
investigators later connected Appellant to the incident and
arrested him, Appellant exclaimed that Turner was supposed to
take full responsibility for the incident and that Thompson
did not like him. While in pre-trial custody, Appellant sent
numerous letters to Turner asking her for loyalty, telling
her to recant her statements to police, and instructing her
to tell investigators that he was not involved with the
Though not raised by Appellant as error, in accordance with
this Court's standard practice in appeals of murder
cases, we have reviewed the record and find that the
evidence, as stated above, was sufficient to enable a
rational trier of fact to find Appellant guilty beyond a
reasonable doubt of the crimes for which he was convicted.
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
Appellant first asks this Court to grant him a new trial as a
matter of law pursuant to OCGA §§ 5-5-20 and
5-5-21. However, as we have explained before, we have no
authority to grant such a request.
A motion for new trial based on OCGA § 5-5-20, i.e.,
that the verdict is contrary to the evidence, addresses
itself only to the discretion of the trial judge. Witt v.
State, 157 Ga.App. 564 (2), (278 S.E.2d 145) (1981).
Whether to grant a new trial based on OCGA § 5-5-21,
i.e., that the verdict is strongly against the evidence, is
one that is solely in the discretion of the trial court, and
the appellate courts do not have the same discretion to order
new trials. Willis v. State, 263 Ga. 597(1) (436
S.E.2d 204) (1993).
Smith v. State, 292 Ga. 316, 317 (737 S.E.2d 677)
(2013). Instead, as we did above, "this Court
considers only the sufficiency of the evidence that was
considered by the jurors in arriving at the verdict."
Smith v. State, 300 Ga. 532, 534, n.2 (796 S.E.2d
Appellant next contends that his trial counsel was
ineffective in seven different ways. To succeed on his
claims, Appellant bears the heavy burden of showing
"both that his counsel performed deficiently and that,
but for the deficiency, there is a reasonable probability
that the outcome would have been more favorable."
Slaton v. State, 303 Ga. 651, 652 (814 S.E.2d 344)
(2018). See also Strickland v. Washington, 466 U.S.
668, 687, 694 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).
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. Courts reviewing
ineffectiveness claims must apply a strong presumption that
counsel's conduct fell within the wide range of
reasonable professional performance. Thus, decisions
regarding trial tactics and strategy may form the basis for
an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have followed
such a course. If the defendant fails to satisfy either the
"deficient performance" or the
"prejudice" prong of the Strickland test,
this Court is not required to examine the other.
(Citation omitted.) Slaton, 303 Ga. at 652-653. We
address each of Appellant's claims in turn.
Appellant first contends that trial counsel was ineffective
for failing to investigate and present testimony from two
exculpatory witnesses, Lakiesha Gray and Shaqunia Gates.
According to Appellant, these witnesses would have testified
that he "was not a party to nor present during the
alleged killing." As an initial matter, Appellant has
failed to adduce any competent evidence to show what Gray
would have testified to at trial; accordingly, this portion
of his claim must fail. See Dickens v. State, 280
Ga. 320 (2) (627 S.E.2d 587) (2006).
Gates, the undisputed testimony at the hearing on the motion
for new trial was that trial counsel did, in fact, interview
her. Both Gates and Appellant testified that trial counsel
met with Gates; trial counsel acknowledged that he discussed
possible witnesses with Appellant and interviewed at least
one female passenger from Appellant's vehicle, though he
could not recall whether it was Gates specifically. According
to her testimony at the hearing on the motion for new trial,
Gates - a prostitute who worked for Appellant and was
romantically involved with him - would have testified at
trial that, on the night in question, Appellant argued with
the victim in the gas-station parking lot and that, shortly
thereafter, a brawl took place between the victim and a
number of prostitutes who worked for Appellant; according to
Gates, however, the enmity ...