CourtListener 10680323

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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: May 29, 2024

S24A0493. STURKEY v. THE STATE.

BETHEL, Justice.

Ricardo Sturkey was convicted of malice murder and other

crimes in connection with the shooting death of Albert White.1 On

appeal, Sturkey raises two claims of trial court error and argues that

his trial counsel rendered constitutionally ineffective assistance. For

1 The crimes occurred on February 23, 2009. In July 2010, a Macon
County grand jury indicted Sturkey for malice murder, felony murder,
aggravated assault, armed robbery, tampering with evidence, and concealing
the death of another. At a December 2010 jury trial, Sturkey was found guilty
of all counts. In January 2011, the trial court sentenced Sturkey to serve life
in prison for malice murder; a consecutive term of twenty years in prison for
armed robbery; a concurrent term of one year in prison for tampering with
evidence; and a concurrent term of five years in prison for concealing the death
of another. The remaining counts merged or were vacated by operation of law.
Sturkey filed a timely motion for new trial, which he amended twice through
new counsel in May 2019 and June 2019. Following a June 2019 hearing, the
trial court entered an order denying Sturkey’s motion, as amended, on January
5, 2022. Sturkey filed a timely notice of appeal, but the record was not
transmitted to this Court until December 2023. The case was docketed to this
Court’s April 2024 term and submitted for a decision on the briefs.
the reasons that follow, we affirm.

1. The evidence adduced at trial showed as follows. In February

2009, Sturkey was living at the home of Albert White. White was

last seen alive on February 23, 2009. On February 24, several of

White’s family members and friends stopped by to see him. When

Willie James Odum, White’s brother-in-law, knocked on the door,

Sturkey spoke to Odum through the door and claimed that White

had gone somewhere with someone in a white truck. Sturkey refused

to let another of White’s friends in the house. And when two other

friends of White’s attempted to visit, they saw White’s truck outside

the house and a fire burning in the yard, but when they knocked, no

one came to the door.

On February 25, several people went to the house to check on

White, and they found him in bed with the covers pulled over him.

Upon pulling the blankets back, they found White deceased with

gunshot wounds to the neck and back of the head. Sturkey had

walked ahead of the others and appeared to try to wake White, then

tried to prevent them from uncovering White. After the discovery of

2
White’s body, Sturkey did not seem surprised or upset about White’s

death. It was later determined that White had been deceased for 36

to 48 hours before his body was discovered and that White was most

likely killed in the kitchen before his body was moved to the bed.

Near a burn pile in the backyard of White’s house,

investigators found a blood-stained, partially burned shirt. The

blood stain patterns on the shirt led investigators to believe it was

worn by the person who moved White’s body. DNA testing matched

the blood on the shirt to White; genetic material, likely sweat or skin

cells, recovered from the neckband and armpit areas was matched

to Sturkey. Investigators also located a large empty jar in White’s

living room. They learned that the jar was typically filled with loose

change, which was significant because Sturkey used “a bag full of

change” to buy crack cocaine on the night of February 23, the day of

White’s death. Investigators later located the revolver used to shoot

White wrapped in a shirt and hidden in a cooler inside a shed on the

property of Adreka Belvin, a neighbor of White’s. Belvin offered to

let investigators search her property after hearing that the murder

3
weapon was not recovered at the scene because, she said, Sturkey

came to her house on the morning of February 25 asking for a

cigarette, which Belvin found unusual because she had not seen

Sturkey for several months.

2. In his first claim of error, Sturkey argues that, while

questioning a witness at trial, the trial judge expressed an opinion

as to Sturkey’s guilt, thereby violating OCGA § 17-8-57 (a) (1) (“It is

error for any judge, during any phase of any criminal case, to express

or intimate to the jury the judge’s opinion as to whether a fact at

issue has or has not been proved or as to the guilt of the accused.”).2

We are not persuaded.

At trial, a forensic biologist testified regarding DNA testing of

the blood-stained shirt and the estimated frequencies of the DNA

profiles for the blood (one in ten quadrillion), the sample from the

2 The former version of OCGA § 17-8-57 applied at the time of Sturkey’s

2010 trial, but we have held that the statute, “as amended in 2015, applies to
appeals decided after 2015.” Bamberg v. State, 308 Ga. 340, 352 (5) (839 SE2d
640) (2020). “With respect to a judge’s expression of opinion as to whether a
fact at issue has or has not been proved, the amended statute no longer
requires automatic reversal on appeal.” Willis v. State, 304 Ga. 122, 126 (2)
(816 SE2d 656) (2018).
4
armpit area (one in twenty million), and the sample from the

neckband (one in sixty million). Following cross-examination, the

trial judge briefly questioned the witness “just to clarify a couple of

things” as follows:

Q. Apparently, you had plenty of blood, so you could get
really good samples?
A. Yes.
Q. And that’s why you had 1 in 16 [sic] quadrillion, or
whatever it is, because you had a good sample?
A. Right.
Q. So you had lots of markers. So that’s how you can
eliminate so many folks?
A. Yes.
Q. On the sweat or the skin, you got a much lower
number. Did you have fewer markers?
A. Of course, we look at the same number of markers,
but there was less information at those markers.
Q. You didn’t have complete DNA?
A. Right. There was not a complete profile.
Q. Okay. So you had a smaller picture to examine, and
therefore, you could eliminate fewer people?
A. Correct.
Q. Okay. Because you didn’t have as much skin as you
did blood?
A. Right.

Sturkey did not object to the trial judge’s questioning, and, as

he now concedes, his “failure to make a timely

objection . . . preclude[s] appellate review, unless [the alleged]

5
violation [of OCGA § 17-8-57 (a)] constitutes plain error which

affects substantive rights of the parties.”3 OCGA § 17-8-57 (b). To

show plain error, Sturkey “must point to a legal error that was not

affirmatively waived, was clear and obvious beyond reasonable

dispute, affected his substantial rights, and seriously affected the

fairness, integrity, or public reputation of judicial proceedings.”

Bamberg v. State, 308 Ga. 340, 352 (5) (839 SE2d 640) (2020)

(citation and punctuation omitted).

Beyond the “narrow prohibition” contained in OCGA § 17-8-57

(a), it is well settled that a trial judge has discretion to “propound

3 Relying on our decision in Paul v. State, 272 Ga. 845, 848 (2) (537 SE2d

58) (2000) (noting that this Court had “repeatedly held” that a claim arising
from an alleged violation of OCGA § 17-8-57 “is waived in the absence of an
objection or motion for mistrial”), the Attorney General asserts that this claim
is waived by Sturkey’s failure to object at trial. But the Attorney General
overlooks that we went on to hold in Paul that “we will apply the plain error
rule to death penalty cases, and other criminal cases in which the trial court
violates OCGA § 17-8-57.” Id. at 848-849 (3). Moreover, as we held in Willis,
304 Ga. at 129 (2) (b), “the standard of appellate review set out in [subsection
(b) of OCGA § 17-8-57, as amended in 2015] is properly given retroactive effect
to cases tried before the enactment date but appealed after that date.” See also
OCGA § 17-8-57 (b) (providing for plain error review of alleged violations of
OCGA § 17-8-57 (a) (1) “even when a timely objection informing the court of
the specific objection was not made, so long as such error affects substantive
rights of the parties”). Thus, Sturkey’s claim is reviewed for plain error.
6
questions to a witness to develop the truth of the case or to clarify

testimony.” Finley v. State, 286 Ga. 47, 51 (9) (a) (685 SE2d 258)

(2009) (citation omitted). The extent of such examination likewise is

a matter of the judge’s discretion. See id. Sturkey briefly asserts on

appeal that, by questioning the witness, the trial judge “risked

having the jury interpret [his] questioning as an expression of

opinion of Sturkey’s guilt” and as “mean[ing] that . . . the DNA

evidence pointed to Sturkey and no one else.” But the judge’s

questions focused narrowly on the witness’s methodology and did

not express the judge’s opinion about the credibility of the witness,

the accuracy of the witness’s findings, or the facts of the case. Nor

did the questions indicate, either impliedly or expressly, that the

judge viewed the DNA evidence as conclusive evidence of Sturkey’s

guilt. As such, Sturkey has failed to demonstrate error in this

respect. See id. (rejecting claim based on trial judge’s interposing

several questions to several witnesses because “the transcript

reveal[ed] no expression or intimation of opinion by the trial court

in the exchanges at issue”); Curry v. State, 283 Ga. 99, 102 (4) (657

7
SE2d 218) (2008) (“[B]ecause the court’s questions were entirely

objective, did not suggest any particular answer to the witness, and

related to the events surrounding the homicide, we conclude that the

trial court’s questions fell within the court’s discretion to ask

questions to develop the truth of the case.”). And because there was

no error here, plain or otherwise, Sturkey’s claim fails at the first

prong of the plain error test, and we need not consider the others.

See Bamberg, 308 Ga. at 353 (5) n.13.

3. Sturkey’s second claim of error arises from the following

sequence of events during trial. While cross-examining the principal

investigator on the case, defense counsel pursued a line of

questioning about a prior relationship between Sturkey and Belvin

and the investigation of Belvin as a suspect in White’s murder.

When defense counsel’s questions approached the subject of why

Belvin was excluded as a suspect, the State interjected to request a

bench conference with the trial court. Then, outside the jury’s

presence, the prosecutor explained that “the way that [the

investigator] excluded Adreka Belvin as a suspect is that she had

8
her polygraphed about whether or not she knew where the gun was,

etc.” The prosecutor also noted that “polygraph evidence is not

generally admissible” and expressed concern that counsel’s

questions could open the door to testimony about the polygraph

examination.

After noting that defense counsel’s questions were aimed at

identifying an alternative suspect and were “perfectly appropriate,”

the trial court indicated that, if the line of questioning continued, it

would be “inclined to agree” that the investigator could testify that

the result of Belvin’s polygraph examination led to her exclusion as

a suspect. Defense counsel expressed his strident disagreement, and

the trial court emphasized that it was not making any “scientific

determination” about the accuracy of polygraph examinations

generally or “any threshold decision as to whether or not polygraphs

are good or bad or inadmissible.” Defense counsel raised several

constitutional objections and stated that, because his “cross-

examination has been limited,” he had no further questions. The

court made clear that defense counsel had not been ordered to end

9
his examination. Now, on appeal, Sturkey asserts that the trial

court’s statements amounted to an erroneous ruling on the

admissibility of the polygraph evidence. We disagree.

As an initial matter, we question whether this claim is

preserved for appellate review. Though Sturkey characterizes the

trial court’s statements as a ruling, the trial court itself emphasized

that it was not ruling on the admissibility of the polygraph evidence.

Instead, the court explained only that it was “inclined to agree” that

the State would be permitted to elicit testimony about the polygraph

examination to explain the investigator’s conduct in deciding not to

pursue Belvin as a suspect. See Johnson v. State, 292 Ga. 785, 788

(4) n.3 (741 SE2d 627) (2013) (noting that “issue was not preserved

[for appellate review] where trial court was not inclined to admit the

evidence but was not yet saying absolutely that it would be

excluded”). And, ultimately, evidence of Belvin’s polygraph

examination was not admitted at trial. See McKoy v. State, 303 Ga.

327, 332 (812 SE2d 293) (2018) (“[B]ecause the [evidence] that the

trial court held would be admissible [was] never actually admitted

10
into evidence . . . , [a]ny error the court may have made in that

ruling in limine was . . . not preserved for appellate review.”). In the

absence of a definitive ruling on the admissibility of the polygraph

evidence and of the subsequent admission of that evidence, it does

not appear that this claim is preserved for appellate review.

Even assuming this claim is properly before us, however, the

trial court’s statement regarding the potential admissibility of the

polygraph evidence to explain the investigator’s conduct would have

been a correct application of the law at the time of Sturkey’s 2010

trial.4 Indeed, it was well settled that “[t]he results of a polygraph

examination [were] inadmissible except by stipulation of the parties

or to explain an actor’s conduct or motive when such is relevant to the

issues on trial[.]” Thornton v. State, 279 Ga. 676, 679 (4) (620 SE2d

356) (2005) (citations and punctuation omitted; emphasis supplied).

Here, although the parties did not stipulate to the admissibility of

the polygraph evidence, the trial court correctly noted that defense

4 Georgia’s former Evidence Code was in effect at the time of Sturkey’s

trial.
11
counsel’s line of questioning was likely to—if it had not already—

place in issue the investigator’s conduct in discontinuing the

investigation of Belvin despite the murder weapon being found on

her property. And evidence that the investigation was discontinued

as a result of Belvin’s passing a polygraph examination would be

relevant and admissible to explain that conduct. See Carr v. State,

259 Ga. 318, 319-320 (1) (380 SE2d 700) (1989) (“[B]y focusing on

the police investigation in his cross-examination” of an investigating

officer, appellant “opened the door” to testimony that the State’s key

witness and a former suspect in the murder had taken a polygraph

examination, and “[t]he purpose of this evidence was to show the

reasons for the investigator’s conduct and why he sought an arrest

warrant for the appellant.”); Wilson v. State, 254 Ga. 473, 476 (2)

(300 SE2d 364) (1985) (“[T]he question is whether the

defense . . . placed in issue the state’s conduct in dismissing the

murder charge against [a different suspect]. If it did, then the

evidence that the murder charge . . . was dismissed after [the other

suspect] took a polygraph examination was admissible.”); Corn v.

12
State, 290 Ga. App. 792, 797 (1) (660 SE2d 782) (2008) (“[I]t is clear

from [appellant’s] cross-examination that he was making the

argument that [the witness] was falsely accusing him in order to

benefit himself and that this false testimony was the basis of the

deal which [the witness] made with the State. Therefore, [the

witness’s] motive for testifying was directly called into issue by

[appellant], and the State was properly allowed

to rebut [appellant’s] allegations with the true terms of the deal,

even though that involved the results of a polygraph.”). This claim

presents no basis for reversal.

4. Finally, Sturkey argues that trial counsel rendered

constitutionally ineffective assistance. To succeed on this claim,

Sturkey must demonstrate both that trial counsel’s performance

was deficient and that he was prejudiced as a result. See Strickland

v. Washington, 466 U. S. 668, 687 (III) (B) (104 SCt 2052, 80 LE2d

674) (1984). To show deficient performance, Sturkey “must

demonstrate that his attorney performed at trial in an objectively

unreasonable way considering all the circumstances and in light of

13
prevailing professional norms.” Butler v. State, 313 Ga. 675, 683 (4)

(872 SE2d 722) (2022) (citation and punctuation omitted). To show

prejudice, Sturkey must demonstrate “a reasonable probability that,

in the absence of counsel’s deficient performance, the result of the

trial would have been different.” Id. See also Strickland, 466 U. S.

at 694 (III) (B) (“A reasonable probability is a probability sufficient

to undermine confidence in the outcome.”). “The failure to

demonstrate either deficient performance or resulting prejudice is

fatal to a claim of ineffective assistance of counsel and obviates the

need even to consider the other.” Bradley v. State, 318 Ga. 142, 144

(2) (897 SE2d 428) (2024).

(a) Sturkey first asserts that trial counsel was ineffective by

discontinuing his cross-examination of the principal investigator

following the exchange with the trial court discussed in Division 3

above. However, our review of the record shows that this claim has

been raised for the first time on appeal, despite the fact that Sturkey

was represented by new counsel during the motion-for-new-trial

phase. As we have previously explained,

14
in order to avoid a waiver of a claim of ineffective
assistance against trial counsel, the claim must be raised
at the earliest practicable moment, and that moment is
before appeal if the opportunity to do so is available. The
pre-appeal opportunity is “available” when the convicted
defendant is no longer represented by the attorney who
represented him at trial.

Robinson v. State, 306 Ga. 614, 616 (2) (a) (832 SE2d 411) (2019)

(citations and punctuation omitted). Because Sturkey was

represented by a different attorney at the motion for new trial, he

had the opportunity to raise this claim of ineffective assistance, and

his failure to do so results in a waiver of the claim. See id.

(b) Sturkey also asserts that trial counsel was ineffective by

failing to present the testimony of a witness who could provide

evidence pertaining to additional suspects with motive to murder

White. Specifically, Sturkey asserts that, several months before

White’s death, two individuals robbed and assaulted White and that

evidence of these crimes “would have shown the possibility of other

persons having a motive or predisposition to kill” White. Assuming

without deciding that trial counsel was deficient in this respect,

Sturkey has failed to establish prejudice. Indeed, Sturkey has not

15
identified with any specificity the witness he contends counsel

should have called to testify at trial, nor has he demonstrated what

that witness’s testimony would have shown. 5 This claim thus rests

“on speculation about what [the witness] would have testified

about,” and Sturkey “cannot meet his burden of proving that he was

prejudiced by the failure to call” this witness. Butler, 313 Ga. at 684

(4) (b); see also Harris v. State, 304 Ga. 652, 655 (2) (a) (821 SE2d

346) (2018) (because appellant failed to introduce either testimony

from the uncalled witness or a legally recognized substitute for that

testimony, he “provide[d] no evidentiary basis to make even a

threshold claim of prejudice, which he bears the burden of proving”).

Furthermore, Sturkey offers nothing more than a conclusory

argument that he was prejudiced by this assumed deficiency, and he

has not explained, in light of the significant evidence of his guilt,

how the mere fact that, months before his death, White was the

5 Sturkey attached as exhibits to his brief filed in this Court copies of the

indictments for the prior crimes committed against White. But those
indictments are not included in the appellate record, and the copies attached
to Sturkey’s brief “do[ ] not constitute evidence that can be considered by this
Court on appeal.” Arnold v. State, 286 Ga. 418, 419 (2) (687 SE2d 836) (2010).
16
victim of apparently unrelated crimes would have created a

reasonable probability of a different outcome at trial. See Graves v.

State, 306 Ga. 485, 489 (2) (a) (831 SE2d 747) (2019) (rejecting

ineffective assistance claim premised on counsel’s failure to procure

an expert witness because appellant failed to show that such

testimony “would have rebutted the substantial evidence of his

guilt”). Accordingly, this claim fails.

5. Though not linked to any of Sturkey’s claims of error, the

procedural history of this case warrants note. As set out in footnote

1 above, nearly 13 years elapsed between Sturkey’s sentencing in

January 2011 and his appeal’s arrival at this Court in December

2023.6 The record reflects several intervening and concerning

delays: the trial transcripts were not filed until October 2017, nearly

seven years after sentencing an amended motion for new trial was

not filed until May 2019,7 more than eight years after sentencing

6 Sturkey has enumerated no error arising from this delay, so it has no

effect on the outcome of his appeal. See Owens v. State, 303 Ga. 254, 258 (4)
(811 SE2d 240) (2018).
7 Sturkey’s trial counsel died in March 2014. It does not appear that

17
(and over eighteen months after the trial transcript was filed)

despite requesting and being granted leave to file a response within

thirty days of the June 2019 hearing on Sturkey’s motion for new

trial, the State did not respond to Sturkey’s motion until July 2021,

more than two years after the hearing and a brief in support of

Sturkey’s motion for new trial was not filed until January 2022.

Moreover, while Sturkey’s notice of appeal was filed on February 2,

2022, the trial court clerk delayed transmitting the appellate record

to this Court for nearly two more years and only transmitted the

record after Sturkey himself wrote to the clerk requesting an update

on the status of his appeal.8 The parties do not address these delays,

Sturkey’s present counsel ever filed an entry of appearance, so the precise date
she became involved in this case is not apparent from the record. However, it
is clear that present counsel has represented Sturkey since at least 2016, when
Sturkey filed an inquiry with the Bar regarding his inability to communicate
with counsel, and Sturkey’s pro se filings indicate that counsel has represented
him since shortly after his 2010 trial.
8 See Ga. Uniform Superior Court Rule 41.4 (“Upon filing of a notice of

appeal, the clerk shall compile and transmit the record in accordance with the
requirements of the appropriate appellate court as required by OCGA § 5-6-43.
Failure to do so within 60 days of the deadlines imposed by OCGA § 5-6-43 may
subject the clerk to a show cause hearing before the sentencing court.”)
(effective January 1, 2019); OCGA § 5-6-43 (d) (“Where a transcript of evidence
and proceedings is already on file at the time the notice of appeal is filed, as

18
and nothing in the record explains or justifies them. In fact, the

record reflects that Sturkey, acting on his own behalf, repeatedly

tried over the course of several years to bring the inordinate delay

in his post-conviction proceedings to the attention of his present

counsel, the District Attorney, and the trial court, to no apparent

avail.

This appeal appears to join a recent raft of cases with lengthy,

unexplained, and unjustified delays between trial and appeal, both

in this Court and in our Court of Appeals. See, e.g., Platt v. State,

___ Ga. ___, ___ n.2 (___ SE2d ___) (Case No. S24A0399, decided Apr.

30, 2024) (12-year delay); Everett v. State, ___ Ga. ___, ___ n.2 (899

SE2d 699) (2024) (13-year delay); Payne v. State, 318 Ga. 249, 249

n.1 (897 SE2d 809) (2024) (8-year delay); Harper v. State, 318 Ga.

185, 186 n.1 (897 SE2d 818) (2024) (nearly 20-year delay); Kinlaw v.

State, 317 Ga. 414, 415 n.1 (893 SE2d 712) (2023) (15-year delay);

where the transcript was previously filed in connection with a motion for new
trial or for judgment notwithstanding the verdict, the clerk shall cause the
record and transcript (where specified for inclusion) to be transmitted as
provided in [OCGA § 5-6-43 (a)] within 20 days after the filing of the notice of
appeal.”).
19
Strickland v. State, ___ Ga. App. ___, ____ (2) (a) (___ SE2d ___)

(Case No. A24A0344, decided Apr. 9, 2024) (20-year delay); Williams

v. State, ___ Ga. App. ___, ____ (1) (___ SE2d ___) (Case No.

A24A0459, decided Mar. 20, 2024) (17-year delay); Graham v. State,

370 Ga. App. 240, 241 (2) (896 SE2d 246) (2023) (14-year delay).

More than six years have passed since this Court in Owens v.

State, 303 Ga. 254, 258 (4) (811 SE2d 240) (2018), directed the

Council of Superior Court Judges to craft rules to address the

problem of post-conviction delays, and more than five years have

passed since those new rules became effective on January 1, 2019,

see Ga. Uniform Superior Court Rules 39.3.1, 41.1, 41.2, 41.3, and

41.4. And our docket certainly reflects the significant and

substantial efforts that our Superior Courts have undertaken to

remedy this problem. Nevertheless, that cases like this continue

languishing in post-conviction limbo demonstrates the lingering

challenge we face. As we have explained before, “these extended and

unjustified delays in resolving criminal cases make our State’s

criminal justice system appear unfair and grossly inefficient” and

20
“put at risk the rights of defendants and crime victims and the

validity of convictions obtained after a full trial.” Owens, 303 Ga. at

258 & 259 (4) (citation and punctuation omitted). So, again, we

“reiterate that it is the duty of all those involved in the criminal

justice system, including trial courts and prosecutors as well as

defense counsel and defendants, to ensure that the appropriate post-

conviction motions are filed, litigated, and decided without

unnecessary delay.” Id. at 258 (4) (citation and punctuation

omitted).

Judgment affirmed. All the Justices concur.

319 Ga. 156
FINAL COPY

S24A0493. STURKEY v. THE STATE.

BETHEL, Justice.

Ricardo Sturkey was convicted of malice murder and other

crimes in connection with the shooting death of Albert White.1 On

appeal, Sturkey raises two claims of trial court error and argues that

his trial counsel rendered constitutionally ineffective assistance. For

the reasons that follow, we affirm.

1. The evidence adduced at trial showed as follows. In February

1 The crimes occurred on February 23, 2009. In July 2010, a Macon
County grand jury indicted Sturkey for malice murder, felony murder,
aggravated assault, armed robbery, tampering with evidence, and concealing
the death of another. At a December 2010 jury trial, Sturkey was found guilty
of all counts. In January 2011, the trial court sentenced Sturkey to serve life
in prison for malice murder; a consecutive term of 20 years in prison for armed
robbery; a concurrent term of one year in prison for tampering with evidence;
and a concurrent term of five years in prison for concealing the death of
another. The remaining counts merged or were vacated by operation of law.
Sturkey filed a timely motion for new trial, which he amended twice through
new counsel in May 2019 and June 2019. Following a June 2019 hearing, the
trial court entered an order denying Sturkey’s motion, as amended, on January
10, 2022. Sturkey filed a timely notice of appeal, but the record was not
transmitted to this Court until December 2023. The case was docketed to this
Court’s April 2024 term and submitted for a decision on the briefs.
2009, Sturkey was living at the home of Albert White. White was