RICHARDSON v. STATE (2026)

Appellant Andre Richardson was convicted of malice murder and possession of a firearm during the commission of a felony in connection with the shooting death of Xavier Cato.¹ In this appeal, Richardson contends that his trial counsel provided constitutionally ineffective assistance by eliciting an investigator's testimony about his decision to charge Richardson with murder, rather than voluntary manslaughter. Because Richardson has failed to show that counsel was deficient, this claim fails, and we affirm.

1. The evidence presented at Richardson's trial showed the following. Richardson and Shicana Brown were married, and Brown decided to separate from Richardson around May or June 2023. Several months later, on October 1, 2023, Brown went to a friend's apartment complex in College Park. Cato, another friend of Brown's, came to the complex's parking lot to visit Brown. Cato asked Brown to “give [him] a hug,” and the two “hugged” and talked next to Brown's car.

Brown testified as follows. While Brown was still with Cato in the parking lot, Richardson arrived at the apartment complex in his car. When he saw Brown and Cato, Richardson jumped out of his car and said to Brown, “[T]his what you do now?” Brown saw that Richardson had a gun in his hand. Cato said to Richardson, “[I]f I was standing too close to her, I apologize, but I've got a girlfriend and kids” and asked to “talk to [Richardson] for a second.” Richardson replied, “[D]on't come any closer.” Brown looked away for a moment but heard a “double tap shot.” She then heard Cato say, “[H]e shot me,” before Cato fell to the ground. Richardson told Brown, “[Y]ou're going to live with this.”

Emergency responders transported Cato to a hospital, where he died that night. The medical examiner who later performed Cato's autopsy determined that he had been shot once in the chest and once in the leg and that the gunshot wound to the chest caused Cato's death.

Later that night, Richardson turned himself in at a police station. Around 12:00 a.m., he was interviewed by investigators; the interview was video-recorded and later played for the jury at trial. Richardson told investigators the following. In the parking lot, Cato kept approaching him, and Richardson was “scared” and “paranoid” and “kept telling this guy stop ․ and the guy ke[pt] getting closer ․. He was right up here on [Richardson], and it was just reflex.” Cato “came so close that [Richardson] fired one shot. Then he kept coming, so [Richardson] fired another shot.” Richardson said that he did not feel “rage” but instead, “disappointment in [his] wife.”

Investigators obtained a surveillance video from the apartment complex, which was played for the jury. The video showed that when Richardson confronted Cato and Brown, Cato raised his arms over his head and took a small step or two toward Richardson; Richardson then moved much closer to Cato and fired the gun twice, and Cato fell to the ground.

Richardson elected not to testify. His theory of defense was that the killing amounted only to voluntary manslaughter.²

2. In his sole enumeration of error, Richardson asserts that his trial counsel provided constitutionally ineffective assistance by eliciting an investigator's testimony about why Richardson was charged with murder instead of voluntary manslaughter, which, Richardson argues, went to the ultimate issue in the case. Because counsel did not perform deficiently, this claim fails.

To establish ineffective assistance, an appellant generally must show that trial counsel's performance was constitutionally deficient and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thornton v. State, 307 Ga. 121, 126, 834 S.E.2d 814 (2019). To satisfy the deficiency prong, an appellant must show that counsel “performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms.” Thornton, 307 Ga. at 126, 834 S.E.2d 814. See also Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. This requires an appellant to overcome the “strong presumption that counsel performed reasonably.” Thornton, 307 Ga. at 126, 834 S.E.2d 814 (quotation marks omitted). An appellant “must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not.” Id. (quotation marks omitted). “In particular, 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.” Id. (quotation marks omitted). To that end, “[i]t is well settled that decisions about what questions to ask on cross-examination are quintessential trial strategy and will rarely constitute ineffective assistance of counsel.” Pritchett v. State, 314 Ga. 767, 786, 879 S.E.2d 436 (2022) (cleaned up). For the prejudice prong, an appellant must demonstrate “that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different.” Thornton, 307 Ga. at 126, 834 S.E.2d 814. If an appellant fails to meet his burden of proving one of the Strickland prongs, we need not address the other prong. See id.

By way of background, at trial, the prosecutor elicited an investigator's testimony that during Richardson's interview, Richardson “seemed to be cool and calm”; he “told [the investigator] that he didn't snap” when he saw Brown with Cato; and that Richardson was “disappointed,” rather than angry, when he saw Brown and Cato together. During cross-examination, Richardson's trial counsel asked the investigator to read aloud the voluntary manslaughter statute, see OCGA § 16-5-2(a),³ and elicited the investigator's testimony that someone seeing his wife “snuggled up to another man” could “spike [his] passions,” that Richardson's “passions might have been spiked” when he saw Brown with Cato, and that the circumstances here “could be” the “kind of passion [the voluntary manslaughter] statute considers.” The following exchange then took place:

[TRIAL COUNSEL]: ․ You didn't take out a warrant for [v]oluntary [m]anslaughter. You took out a warrant for murder, which means there was no provocation by definition, right? Am I correct that you took out a warrant for murder?

[INVESTIGATOR]: Yes, sir.

[TRIAL COUNSEL]: That means there's a killing without passion and without provocation, with malice aforethought, as if he walked up and killed a man in the street with no other extraneous circumstances. You didn't take into account any of these other factors, did you?

[INVESTIGATOR]: Yes, I did.

[TRIAL COUNSEL]: Well, why didn't you draft a warrant for [v]oluntary [m]anslaughter?

[INVESTIGATOR]: Because I didn't see that as [v]oluntary [m]anslaughter. I saw it as murder. When you have a man holding his hands up in the air surrendering tell you, “[I]t's not like that[,]” that's murder all day.

Trial counsel also elicited testimony from the investigator that Richardson and Brown “were still emotionally invested in each other” at the time of the shooting and ended his cross-examination by asking the investigator, “Have you ever, in your career, charged a citizen with [v]oluntary [m]anslaughter?” The investigator responded, “No, sir, I have not.” During closing argument, counsel used the testimony he elicited to assert that Richardson committed voluntary manslaughter and that he was “overcharged,” emphasizing that the investigator had “never charged [v]oluntary [m]anslaughter in his career.”

At the hearing on Richardson's motion for new trial, trial counsel testified that during his cross-examination of the investigator, he was “trying to bring out the points of [Richardson's] interview that established elements of voluntary manslaughter.” Counsel also testified that he “was establishing that [the investigator's] opinion was wrong” and that the investigator “should have considered voluntary manslaughter.” The trial court denied Richardson's motion for new trial, concluding (among other things) that trial counsel was not deficient.

Richardson argues on appeal that the investigator's testimony—particularly his statement that the killing was “murder all day”—went to the ultimate issue in the case (that is, whether Richardson acted with malice or passion in his killing of Cato) in violation of Georgia statutory law. But we have held that under OCGA §§ 24-7-701(a) and 24-7-704(a)⁴ —the latter of which Richardson cites in support of his argument—a lay witness (like the investigator here) generally “may offer opinion testimony based on experience even if the testimony touches upon an ultimate issue to be decided by the jury.” Gold v. State, 319 Ga. 149, 155, 902 S.E.2d 593 (2024) (holding that a detective's testimony that a statement that the appellant made during an interview was not consistent with self-defense was permissible under OCGA §§ 24-7-701(a) and 24-7-704(a)). See also, e.g., Taylor v. State, 315 Ga. 630, 641–42, 884 S.E.2d 346 (2023) (explaining that “[t]his Court has repeatedly held ․ that the current Evidence Code ․ abolished the prohibition on lay opinion testimony concerning the ultimate issue in a case” and holding that the trial court did not abuse its discretion by denying the appellant's motion for a mistrial after an investigator testified that “ ‘the law dictate[d]’ ” that aggravated battery was the appropriate charge in the case); Thornton, 307 Ga. at 128, 834 S.E.2d 814 (noting that under the current Evidence Code, “lay opinion testimony is not objectionable simply because it addresses an ultimate issue” and concluding that a detective's testimony that he was “sure” that the appellant was the shooter was admissible under OCGA §§ 24-7-701 and 24-7-704).

Moreover, counsel's trial strategy of cross-examining the investigator about why he decided to charge Richardson with murder, rather than voluntary manslaughter, was not so patently unreasonable that no competent lawyer would have made that decision under the circumstances. Counsel used the line of questioning to rebut the investigator's testimony on direct examination indicating that Richardson did not kill Cato as a result of an irresistible passion. In this respect, counsel asked the investigator about his charging decision in an effort to highlight the theory that Richardson was guilty only of voluntary manslaughter and that the investigator should have charged Richardson with that crime instead of malice murder. And although the investigator testified that he viewed the killing as “murder all day,” counsel also elicited from the investigator favorable testimony in support of his voluntary manslaughter theory, including testimony that a person seeing his wife “snuggled up to another man” could “spike [his] passions,” that Richardson's “passions might have been spiked,” and that these circumstances “could be” the “kind of passion [the voluntary manslaughter] statute considers.” Trial counsel also elicited the investigator's testimony that he had never charged anyone with voluntary manslaughter, and counsel used this testimony in his closing argument to assert that the investigator had wrongly “overcharged” Richardson with murder. See Pritchett, 314 Ga. at 784–86, 879 S.E.2d 436 (concluding that the appellant's trial counsel did not perform deficiently by eliciting an investigator's testimony about what happened at the time of the shooting, which the appellant argued went to the ultimate issue, because it was a part of quintessential trial strategy, as counsel was attempting to establish the narrative of the State's investigation); Thornton, 307 Ga. at 128–29, 834 S.E.2d 814 (holding that counsel did not act deficiently by eliciting testimony from a detective that went to the ultimate issue because it was part of the reasonable strategic purpose of undermining the detective's testimony on direct examination and attacking his credibility).

Given all of this, Richardson has not shown that trial counsel performed deficiently by eliciting the investigator's testimony detailed above. Thus, his claim of ineffective assistance of counsel fails. See Pritchett, 314 Ga. at 784–786, 879 S.E.2d 436; Thornton, 307 Ga. at 128–29, 834 S.E.2d 814.

Judgment affirmed.

FOOTNOTES

1.   Cato was killed on October 1, 2023. In December 2023, a Fulton County grand jury indicted Richardson for malice murder, felony murder, aggravated assault with a deadly weapon, computer invasion of privacy, and possession of a firearm during the commission of a felony. At a trial from March 25 to 27, 2024, the jury found Richardson not guilty of computer invasion of privacy and guilty of the remaining counts. The trial court sentenced Richardson to serve life in prison for malice murder and five consecutive years in prison for possession of a firearm during the commission of a felony. The felony-murder count was vacated by operation of law, and the count of aggravated assault with a deadly weapon merged with the malice-murder count. Richardson, through new counsel, filed a timely motion for new trial, which he later amended. After an evidentiary hearing, the trial court denied the motion in May 2025. Richardson filed a timely notice of appeal, and the case was docketed to the April 2026 term of this Court and submitted for a decision on the briefs.

2.   The trial court instructed the jury on voluntary manslaughter.

3.   OCGA § 16-5-2(a) says:A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.

4.   OCGA § 24-7-701(a) says:If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are:(1) Rationally based on the perception of the witness;(2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and(3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24-7-702.And OCGA § 24-7-704(a) says that, subject to an exception in subsection (b) that does not apply here, “[T]estimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

Warren, Presiding Justice.

All the Justices concur.