Lee v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: December 9, 2025

S25A1002. LEE v. THE STATE.

MCMILLIAN, Justice.

Appellant Kevin James Lee was convicted of the malice murder

of his wife, Ann Berry.1 On appeal, Lee argues that the evidence

1 Berry disappeared in 1991, but her remains were not discovered until

2011. On June 4, 2012, a Coweta County grand jury indicted Lee – who lived
in California at the time – for malice murder (Count 1) and concealing the
death of another (Count 2). On June 11, 2012, the trial court granted the
State’s motion to place the case on the dead docket until Lee was arrested. On
October 26, 2018, after Lee’s arrest in California, the State moved to have the
case returned to active status, and the trial court entered an order doing so
that same day. At a trial held from March 7 through 9, 2022, the jury found
Lee guilty of both counts. The trial court sentenced Lee to life in prison for
malice murder, plus twelve months in prison to be served consecutively for
concealing the death of another.
Lee filed a timely motion for new trial, which was amended by new
counsel. Following a hearing, at which the State conceded that Lee’s conviction
for concealing the death of another should be set aside because the State failed
to properly indict that offense within the applicable statute of limitation or
allege a tolling exception, the trial court entered an order on October 18, 2024,
setting aside Lee’s sentence for concealing the death of another and denying
the remainder of Lee’s motion for new trial, as amended. Lee filed a timely
notice of appeal that same day, and the case was docketed to the August 2025
was insufficient to support his conviction under OCGA § 24-14-6;

that the trial court abused its discretion in admitting certain

testimony under the residual hearsay exception, OCGA § 24-8-807

(“Rule 807”), and in excusing one of the jurors; and that his trial

counsel rendered constitutionally ineffective assistance in failing to

file a plea in bar for unconstitutional speedy trial delay and in failing

to adequately present the State’s plea offer to Lee. For the reasons

that follow, we affirm.

1. Viewed in the light most favorable to the verdict, the

evidence presented at trial showed that Lee murdered Berry in 1991

as she was attempting to escape their abusive relationship. Lee

buried her body near their home, where it was unearthed almost two

decades later by teenagers who were digging a firepit.

On the night of July 31, 1991, Berry telephoned her sister,

Sheila Story, and asked if Berry and her children could come live

with Story. Story knew something was wrong because she could

term of this Court and submitted for a decision on the briefs.

2
hear Lee yelling and the children crying in the background. Story

said that Berry “absolutely” could come live with her and offered to

come help her pack, but Berry responded that she could handle the

packing on her own and would take her own car because she had

paid for it. Story replied that she would see Berry in a couple hours.

Berry never arrived, and Story never saw or heard from her sister

again.

In the days following Berry’s disappearance, Story tried

unsuccessfully to contact her multiple times. After a few days, Lee

answered the phone and said that Berry left him and the children

for another man. Story testified that she had no knowledge of any

other man in Berry’s life. Multiple family friends, including Denise

Harvard, also testified that Berry never went anywhere without her

children. Over the years, Lee would give varying accounts to friends

and family about the circumstances of Berry’s alleged departure,

such as telling one friend, Tammy Riley, that Berry “got on cocaine

and ran off with a cocaine dealer.”

About a week after Berry’s disappearance, Lee took the

3
children and moved to Kansas. Story went to clean out Berry and

Lee’s house and discovered that almost all of Berry’s possessions

were still there, including her clothes, jewelry, and pictures. Story

attempted to file a missing person’s report but later discovered that

it had not been processed, and Berry was not officially listed as

missing until 1997.

In April 2011 a group of teenagers were digging a firepit in the

woods less than 100 yards from where Berry and Lee once lived and

unearthed a trash bag containing human skeletal remains. DNA

testing confirmed the remains were Berry’s, and the medical

examiner classified her death as a homicide.

After interviewing individuals who had been associated with

Berry in 1991, and exploring possible explanations for her

disappearance, law enforcement obtained an arrest warrant for Lee.

Lee was ultimately located in California and arrested in 2018.

At trial, multiple friends and family members testified about

seeing Lee and Berry in heated arguments during their relationship.

A co-worker of Berry, who worked with Berry in “the late eighties,”

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witnessed Lee come into their workplace multiple times cursing at

Berry, and on one occasion, witnessed Lee get angry with Berry, tell

her that she had to move out and that he was keeping the children,

take their children from her and put them into his vehicle, and

“knock[] her out into the parking lot” as she attempted to reach into

his vehicle for the children while he drove away. Riley saw Lee “get

physical” with Berry “a few times” and observed “her face and stuff

bruised up.” And though Story never witnessed any physical

violence, she saw the couple argue often, observed bruises on Berry’s

neck and arms – which Berry said were from “tussling” with Lee –

and noticed that Berry had begun wearing long sleeves and pants,

even in the heat of the summer.

One friend of Berry and Lee was Larry Cook, who was himself

incarcerated for murder at the time he testified at Lee’s trial. Cook

testified that Berry and Lee “argued a lot,” but he never observed

any physical violence between them. He also testified that it was

rare for Berry to go anywhere without her children, and when asked,

he testified that he and Berry never had a romantic relationship and

5
he did not claim any knowledge of her dating another man. Cook

also acknowledged at trial that he had spent the previous 27 years

incarcerated for murdering a woman and burying her, volunteering

that the murder he was convicted of was “very similar to this one,”

but he expressly denied killing Berry or having anything to do with

her disappearance or death, stating flatly, “No, I did not; Ann was

my friend.”

2. Lee first asserts that the evidence was insufficient to

sustain his convictions as a matter of Georgia statutory law under

OCGA § 24-14-6. (“To warrant a conviction on circumstantial

evidence, the proved facts shall not only be consistent with the

hypothesis of guilt, but shall exclude every other reasonable

hypothesis save that of the guilt of the accused.”). As an initial

matter, because the trial court set aside Lee’s conviction for

concealing the death of another, we do not review the sufficiency of

the evidence to support that count. 2

2 The parties agree on appeal that although the trial court entered an

order setting aside Lee’s conviction and sentence for concealing the death of

6
Turning to the malice murder conviction, 3 Lee argues that the

evidence, which was entirely circumstantial, showed there were two

suspects with opportunity to kill Berry – Lee or Cook – and that

evidence did not prove beyond a reasonable doubt that Lee was the

killer because it did not exclude the reasonable hypothesis that Cook

was the killer. “Under Georgia statutory law, a conviction may rest

solely on circumstantial evidence if that evidence ‘exclude[s] every

other reasonable hypothesis save that of the guilt of the accused.’”

Rashad v. State, 318 Ga. 199, 206 (2024) (quoting OCGA § 24-14-6).

“Not every hypothesis is a reasonable one, however, and the

evidence need not exclude every conceivable inference or

hypothesis—only those that are reasonable.” Rashad, 318 Ga. at

206 (punctuation and citation omitted). Further, “[w]hether any

alternative hypotheses are reasonable and whether the

another, no amended final sentencing disposition has been entered to that
effect. Nothing in this opinion is to be read to preclude the trial court on
remand from entering a corrected sentencing disposition.

3 “A person commits the offense of murder when he unlawfully and with

malice aforethought, either express or implied, causes the death of another
human being.” OCGA § 16-5-1.

7
circumstantial evidence excludes any such hypotheses are questions

for the jury and we will not disturb the jury’s findings on those

questions unless they are insupportable as a matter of law.” Id.

(quotation marks and citation omitted). And we have observed that

such “[q]uestions about the reasonableness of hypotheses” that “are

for the jury to decide … include the possibility of another

perpetrator.” Nichols v. State, 292 Ga. 290, 291 (2013); see also

Jackson v. State, 307 Ga. 770, 772 (2020); Brown v. State, 301 Ga.

728, 731 (2017).

Here, the jury heard that Berry called her sister in an attempt

to flee her abusive relationship with Lee – and take their children

with her – as Lee yelled and the children cried in the background on

the night Berry disappeared. The jury also heard about the

inconsistent accounts Lee gave regarding the circumstances of

Berry’s departure and that Berry’s remains were buried less than

100 yards from the house she shared with Lee and from which she

was attempting to leave the night she disappeared. And the jury

heard Cook testify and deny killing Berry, which the jury was

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entitled to credit. Because there was ample evidence from which the

jury could reject as unreasonable Lee’s alternate theory that Cook

was the killer and instead find beyond a reasonable doubt that Lee

murdered Berry with malice aforethought, this enumeration fails.

See, e.g., Brown, 301 Ga. at 728; Nichols, 292 Ga. at 291–92.

3. Lee next asserts that the trial court abused its discretion

in admitting, under Rule 807’s residual exception, harmful hearsay

from Story, Harvard, and Riley about statements made by Berry

about the state of her relationship with Lee. 4 This claim fails.

4 Rule 807 provides:

A statement not specifically covered by any law but having
equivalent circumstantial guarantees of trustworthiness shall not
be excluded by the hearsay rule, if the court determines that:
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it
is offered than any other evidence which the proponent can
procure through reasonable efforts; and
(3) The general purposes of the rules of evidence and the
interests of justice will best be served by admission of the
statement into evidence.
However, a statement may not be admitted under this Code section
unless the proponent of it makes known to the adverse party,
sufficiently in advance of the trial or hearing to provide the adverse
party with a fair opportunity to prepare to meet it, the proponent’s
intention to offer the statement and the particulars of it, including
the name and address of the declarant.

9
On January 20, 2022, the State filed notice of intent to

introduce “residual hearsay” under Rule 807, to include statements

made by Berry to various witnesses, including Story, Harvard, and

Riley, “as previously provided in discovery.” Prior to trial, the court

heard argument from the parties regarding the State’s notice. The

State represented that Story would “be testifying as to information

conveyed to her by the deceased, about the relationship she had with

[Lee], most particularly about events that occurred on July the 31st

of 1991.” In addition to arguing that the statements should be

admitted under Rule 807, the State also argued that the statements

made during the July 31, 1991, phone call would be admissible

under the “excited utterance” and the “then existing state of mind”

exceptions to hearsay. See OCGA § 24-8-803(1) & (2). The State

further proffered that Story would also “testify about instances of

conduct between [Appellant and Berry] that Ms. Berry conveyed to

Ms. Story about fights they had gotten into and various things like

that.” Turning to Harvard and Riley, the State represented that

those witnesses were close friends of Berry whom she confided in

10
and that they would testify “how things were going in the

relationship for good and ill; how [Berry] cared for her children, how

she – what was going on, on a day-to-day basis.” In arguing the

issue, both the State and Lee specifically analyzed the standards for

admission of statements under Rule 807’s residual exception,

including the requirement of “exceptional guarantees of

trustworthiness” and whether it had been met. The trial court ruled

that “some of it is part of the excited utterance or whatever else,”

and that “I’m going to allow it in under 807,” while also noting that

“again, the Miller [v. State, 303 Ga. 1 (2018)] case does say that it’s

a rare exception. So let’s try to limit that as much as we possibly

can, all right?” Thereafter, Story, Harvard, and Riley testified.

In its order denying Lee’s motion for new trial, the court set

forth Rule 807’s requirement of “circumstantial guarantees of

trustworthiness”; found that “Story testified that she and Ann are

sisters and were very close. The pair talked to each other daily and

shared the personal details of their lives with each other. Story and

Ann continued this close relationship until Ann’s death”; and ruled

11
that “[i]n light of the evidence of their sibling relationship and the

circumstances in which Ann made the statements at issue to Story,

the Court cannot say that it abused its discretion by admitting the

statements under Rule 807.” The trial court further concluded,

“[t]he record does not show any hearsay elicited by the state for

witnesses Harvard and Riley. There is neither error nor harm.”

On appeal, Lee argues that the State neither provided the

particulars of the statements in its notice, nor showed that the

statements were accompanied by circumstantial guarantees of

trustworthiness, and that because the trial court’s ruling in limine

did not address the exceptional guarantees of trustworthiness

standard, the trial court abused its discretion in admitting, under

Rule 807’s residual exception, “hearsay from Story, Harvard, and

Riley” “about the state of [Berry’s] relationship with Lee.” However,

the record shows that the trial court ruled in limine after hearing

the parties specifically argue the exceptional guarantees of

trustworthiness standard and whether it had been met, providing

further findings in its order denying Lee’s motion for new trial that

12
it did not abuse its discretion in admitting Story’s testimony under

Rule 807. Accordingly, Lee’s argument – that the absence of an

explicit finding on the record regarding Rule 807’s exceptional

guarantees of trustworthiness standard in the trial court’s ruling in

limine constitutes an abuse of discretion – fails, and we see no abuse

of discretion in the trial court’s ruling. See, e.g., Jacobs v. State, 303

Ga. 245, 248–51 (2018).

Moreover, with respect to Riley’s and Harvard’s testimony, Lee

cites their short direct testimonies in their entirety to support his

claim, but our review of that testimony shows that the trial court

was correct that the record does not show any hearsay statements

from Berry elicited from Harvard or Riley about the state of the

relationship between Berry and Lee.5 Because the premise of Lee’s

argument – that these witnesses testified about Berry’s statements

about the state of the relationship between Berry and Lee – is

incorrect, this enumeration also fails as to Riley’s and Harvard’s

5 When asked, “Ann never told you anything about being abused?”
Harvard simply replied, “No.” Riley testified about a statement Berry made
about going to the dentist.
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testimony for this reason.

4. Lee also asserts that the trial court abused its discretion

when it excused Juror 4 on the third day of trial and substituted an

alternate juror, over Lee’s objection, without good or legal cause. We

disagree.

The record shows that Juror 4 arrived late the second day of

trial and then called the clerk’s office the morning of the third day

and said she would not be coming to court that day because of a

conflict with her college class schedule. The trial court directed the

clerk’s office to contact Juror 4 and inform her that she needed to

appear because she had not been released. After waiting more than

two hours, the trial court told the parties that it did not intend to

delay things further since it was unclear if Juror 4 would ever

appear and it did not look like she would. The court then stated that

“unless somebody can give me a legal reason to the contrary,” it

would replace Juror 4 with an alternate and proceed with trial. Lee

objected to the replacement of Juror 4 but did not offer any legal

authority to support his objection.

14
“It is well established that OCGA § 15-12-172 gives a trial court

the discretion to discharge a juror and replace him or her with an

alternate at any time so long as the trial court has a sound legal

basis.” Smith v. State, 307 Ga. 680, 686 (2020) (citation and

quotation marks omitted). See also OCGA § 15-12-172 (providing

that if a juror “dies, becomes ill, [or] upon other good cause shown to

the court is found to be unable to perform [her] duty, or is discharged

for other legal cause, the first alternate juror shall take [her] place”).

In Smith, where the relevant juror was late previously and called

the clerk’s office the morning of the second day of trial, saying that

she was running late again, we held that “[i]t was not an abuse of

discretion for the court to conclude that waiting for [the juror] to

arrive would unnecessarily delay the trial and that replacing her

with an alternate juror was appropriate.” 307 Ga. at 686; see also

Brooks v. State, 281 Ga. 14, 18 (2006) (observing that “[t]he juror’s

tardiness was a sound basis for her dismissal”).

Under the circumstances of this case, the trial court did not

abuse its discretion in dismissing Juror 4 and substituting an

15
alternate for good cause, where she was not only late, but informed

the court that she would not be coming at all for the third day of

trial. Accordingly, this enumeration fails.

5. Finally, Lee asserts that his trial counsel rendered

constitutionally ineffective assistance by (a) failing to file a plea in

bar for unconstitutional pre-trial delay under the Speedy Trial

Clause of the Sixth Amendment to the United States Constitution,

and (b) failing to adequately present the State’s plea offer to Lee.

These claims also fail.

To prevail on these claims, Lee must show both deficient

performance and resulting prejudice. See Strickland v. Washington,

466 US 668, 687 (1984). To show deficient performance, Lee “must

demonstrate that counsel performed counsel’s duties in an

objectively unreasonable way, considering all of the circumstances

and in the light of prevailing professional norms.” Payne v. State,

314 Ga. 322, 328–29 (2022). “In determining whether counsel’s

performance was deficient, the relevant inquiry is ‘whether, in light

of all the circumstances, the identified acts or omissions were

16
outside the wide range of professionally competent assistance.’”

Ford v. Tate, 307 Ga. 383, 386 (2019) (quoting Strickland, 466 US at

690). “The law recognizes a strong presumption that counsel

performed reasonably,” and Lee “bears the burden of overcoming

this presumption.” Blocker v. State, 316 Ga. 568, 578 (2023) (citation

and punctuation omitted). Lee “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. (citation and punctuation

omitted). To establish prejudice, Lee “must show that there is a

reasonable probability that, but for counsel’s deficiency, the result

of the trial would have been different.” Zayas v. State, 319 Ga. 402,

409 (2024) (citation and punctuation omitted). If either prong is not

met, we need not address the other. Id.

(a) Failure to file plea in bar on constitutional speedy trial

grounds. On August 24, 2021 – after Lee had sent multiple letters

to his trial counsel and the trial court, asserting that he wished to

demand a speedy trial – Lee’s trial counsel requested permission to

file an out-of-time demand for a statutory speedy trial. On

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September 14, 2021, the trial court held a hearing on the motion.

On September 28, 2021, the trial court entered a written order

finding no good cause and denied Lee’s motion. Lee did not file a

constitutional speedy trial demand, nor did he move to dismiss the

indictment on speedy trial grounds. He now argues that his trial

counsel rendered ineffective assistance by failing to file a plea in bar

on constitutional speedy trial grounds.

“Whether to file a demand for speedy trial is usually a matter

of trial tactics and strategy, as a delay in bringing the case to trial

may work to a defendant’s advantage.” Jones v. State, 296 Ga. 561,

569 (2015); see also Smith v. State, 297 Ga. 214, 217 (2015),

overruled on other grounds by Johnson v. State, 315 Ga. 876 (2023).

And “[a]s with other tactical or strategic decisions, trial counsel’s

decision to file, or not, a demand for speedy trial should not be

evaluated in hindsight.” Jones, 296 Ga. at 569.

Both of Lee’s trial attorneys testified that they researched and

discussed both statutory and constitutional speedy trial claims and

that they had concerns that any speedy trial demand would fail

18
because of the delay attributed to Lee in combination with the other

circumstances of the case. One counsel testified that his

investigator “was chasing people down and tracking people down

and doing everything he could,” and “we had evidence out there and

we did some research on speedy’s that if … the delay can be

attributed back to our side, then that weakened our trying to be

victorious,” and they “anticipated some evidence was going to come

out,” including “Mr. Lee moving around a lot and not staying in one

location for significant amounts of time.”6 Lee’s other attorney

testified that after discussing the different types of speedy trial

demands, “as far as the constitutional speedy, I think we addressed

that in the nature of the case in the review of the law,” and “I don’t

know that we felt that that was a viable option.” They acknowledged

that they moved for permission to file an out-of-time statutory

speedy trial demand at Lee’s request, but one of them testified that

even at that time, he needed additional time to prepare for trial, and

6 Lee argues that his “moving around” was not an attempt to evade
arrest, and that his counsel erred in considering that factor in not filing a
constitutional speedy trial demand.
19
that when the case was finally tried in March 2022, “both sides were

finally both ready to try the case.”

The record therefore supports that trial counsel made a

strategic decision not to assert a constitutional speedy trial demand

or to file a plea in bar on constitutional speedy trial grounds. That

decision was not unreasonable based on their analysis of the

relevant case law and their assessment that Lee had contributed to

the delay, at least in part by “moving around a lot and not staying

in one location,” and because counsel needed more time to

investigate the case and prepare for trial. See Smith, 297 Ga. at 217

(no deficiency in failing to demand a speedy trial where “trial

counsel testified at the motion for new trial hearing that he made a

strategic decision not to file a speedy trial demand”); Bowling v.

State, 289 Ga. 881, 889–90 (2011) (“Trial counsel’s strategic decision

to forego filing an out-of-time demand for speedy trial to continue to

pursue his investigation was reasonable and did not constitute

ineffective assistance.”). Although Lee now claims that he was

unaware of the arrest warrants against him and was not trying to

20
evade them, the trial court was authorized to discredit his claims

and to credit other evidence and testimony to the contrary. And in

any event, Lee’s purported attempt to evade the arrest warrants was

not the only reason given for counsels’ decision not to file a

constitutional speedy trial demand. See Head v. Thomason, 276 Ga.

434, 439 (2003) (no deficiency in counsel’s strategic decision to waive

jury trial, even where one of the reasons for giving the advice proved

to be mistaken in hindsight), overruled on other grounds by State v.

Lane, 308 Ga. 10 (2020).

Because Lee has failed to show that his trial counsel’s strategic

decision not to file a plea in bar on constitutional speedy trial

grounds was objectively unreasonable under the circumstances of

this case, this claim fails.

(b) Failure to adequately present plea offer. Before jury

selection on the first day of trial, the trial court had the State place

its plea offer on the record: Lee could plead guilty to Count 2,

concealing the death of another (a misdemeanor), pursuant to North

Carolina v. Alford, 400 US 25 (1970), receive credit for time served,

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and “walk away.” The trial court explained that an Alford plea

meant Lee could plead to a charge in his best interest even if he

maintained he “didn’t do [it],” rather than risk a life sentence if the

case proceeded to trial and he was found guilty of murder and

confirmed that trial counsel had also gone over this offer with Lee.

Lee insisted, “I still deny. I refuse taking a plea, Your Honor.” Trial

counsel asked for additional time to speak to Lee, which the trial

court granted, as the State informed, “I’ll leave that offer on the

table until the jury is in the room and begin voir dire.” After a short

recess, Lee confirmed that he had sufficient time to speak with his

attorneys, and that they had gone over discovery, the State’s offer,

and the sentence he was facing, but he remained insistent about

going to trial, saying:

[W]hat I don’t understand is things that are stated by two
separate investigators that shine the light on another
possible suspect and another possible motive and it’s
documented. And I don’t understand why the other
investigator is not here, you know, and it just seems like
I’m praying that it’s still other things that are
documented come to light during the trial and it shows
other possibilities than just myself. And I’m pretty much
ready to take that chance.

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I don’t know what will come out at trial. I pray that
a lot of other things that are documented by investigators,
by Atkins comes to light.[ 7] I don’t know how to address
it in the court and bring it out during trial. I pray it gets
brought out and mentioned. And I’m ready to put my life
in the juror’s [sic] hands.

Lee’s trial counsel explained, however, that there were

inconsistencies in some of the statements recorded in Investigator

Atkins’s notes and that counsel had spoken with Investigator

Atkins, who was now living in Florida, and “he doesn’t remember …

So, I wasn’t sure calling Investigator Atkins was really beneficial.”

7 Prior to trial, Lee sent a letter to trial counsel specifically requesting

certain witnesses to be placed under subpoena for the defense, including the
State’s investigator from the 1990s investigation, Investigator Ricky Atkins.
In reports dated March 5, 1997, Investigator Atkins wrote that a convenience
store clerk observed Berry get into a red pickup truck with an unknown
individual who was not Lee; when Story cleaned out Berry’s closet, Berry’s four
favorite outfits were missing; Story told Atkins that Berry used cocaine and
was engaged in an affair with Cook behind Lee’s back; and Story said that Cook
owned a red truck.
At the motion for new trial hearing, Lee’s trial counsel testified that
during their investigation of the case, they spoke with Investigator Atkins,
“and he indicated that he didn’t remember anything about anything,” so
counsel tried to refresh his recollection with his report but “determined that
after speaking to him he was not going to be any help in defending Mr. Lee.”
Trial counsel further testified that their notes indicated, “we had spoken with
[Lee] about the Atkins issue.” His other trial counsel agreed, testifying that
“Mr. Lee would’ve been advised that we didn’t believe that Investigator Atkins
was going to provide substantive value during the defense based on our
conversation[s].”

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In response, the State argued that the statements of others noted by

Investigator Atkins would be impermissible hearsay.

The trial court then stated, “Mr. Lee, so let’s put it this way,

are you listening to me? … I’m not going to let that in. But even if I

did let it in, what would you hope to do with it? What would you

hope would happen?” Lee replied, “I just want that part to be heard.

If I’m going to trial for murder, then I

want –” at which point the court interjected, “But you don’t have to.

I mean, he says he’s going to dismiss the murder … well, look I’m

not going to talk you into it … so I guess we’re going forward with

trial, right?” Lee’s response: “Yes, Your Honor.” The trial court then

inquired about scheduling and asked Lee’s trial counsel whether

they intended to present evidence or witnesses, and trial counsel

represented, “We’re not sure at this time, but we’re not anticipating

any.” After taking up logistical matters regarding how jury selection

would proceed, the prospective jurors entered the courtroom, and

jury selection commenced.

Lee appears to be arguing on appeal that he thought

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Investigator Atkins, who was no longer with the Coweta County

Sheriff’s Office, would be available to testify from his reports. He

argues that trial counsel rendered ineffective assistance, not in

failing to convey the offer itself to him, but in failing to definitively

inform him during his consideration of the plea offer that

Investigator Atkins would not be a defense witness or available to

rebut the State’s witnesses. Lee now claims that he would have

taken the plea had he known that Investigator Atkins was not

available as a witness.

Lee has failed to demonstrate deficiency. The record leaves no

question that the terms of the plea offer, along with the risks of

rejecting it, were clearly explained to Lee by both his trial counsel

and the trial court. And his argument that his attorneys failed to

inform him that Investigator Atkins would not be part of the

defense, plus his claim that he would have taken the plea had he

been aware, are belied by the record.

As noted above, at the pre-trial hearing, in Lee’s presence, his

trial counsel explained that due to problems with that evidence and

25
because Investigator Atkins “doesn’t remember,” he “wasn’t sure

calling Investigator Atkins was really beneficial.” Trial counsel also

stated that the defense was “not anticipating” calling “any”

witnesses or presenting any evidence at trial. At that time, the trial

court also advised Lee regarding statements in Investigator Atkins’s

report, “Mr. Lee, so let’s put it this way, are you listening to me? …

I’m not going to let that in.” And Lee himself acknowledged at that

hearing that although he didn’t understand why, he knew

Investigator Atkins was “not here.” Moreover, at the motion for new

trial hearing, trial counsel confirmed that Lee “would’ve been

advised,” while the plea offer was still open, “that we didn’t believe

that Investigator Atkins was going to provide substantive value

during the defense based on our conversation or based on what was

intimated to us by our investigator.”

In light of this evidence, the trial court did not abuse its

discretion in choosing to discredit Lee’s own self-serving testimony

that he was not aware that Investigator Atkins would not be a part

of his defense and that he would have accepted the State’s plea offer

26
had he been aware. See, e.g., Robinson v. State, 322 Ga. 279, 283–

84 (2025) (affirming trial court’s ruling that defendant failed to

establish trial counsel was deficient in communicating plea offer

where record evidence contradicted defendant’s self-serving

testimony that counsel did not communicate the offer to him);

Bryant v. State, 306 Ga. 687, 696 (2019) (“The trial court was

entitled to believe counsel’s testimony that she discussed with the

appellant the risks of going to trial, [including] the evidence against

him … . And the trial court was entitled to disbelieve the appellant’s

testimony that counsel did not … .”). Lee has not shown that his

trial counsel performed deficiently in this respect. Rather, the

record shows that Lee fully understood the risk he was taking and

chose to “put [his] life in the juror[s’] hands.”

Accordingly, Lee has not carried his burden of showing

deficiency under Strickland, and his ineffectiveness claim fails.8

Judgment affirmed. All the Justices concur.

8 Lee also argues that the cumulative prejudice from trial counsel’s
deficiencies and the trial court’s errors requires reversal. But because we have
neither found nor assumed any such error, there can be no cumulative
prejudice.
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