CourtListener 10680389

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official text of the opinion.

In the Supreme Court of Georgia

Decided: February 6, 2024

S23A1024. VENDREL v. THE STATE.

ELLINGTON, Justice.

Luis Vendrel appeals his convictions for malice murder and

possession of a firearm during the commission of a felony in

connection with the shooting death of Nova Jill Saffles. 1 Vendrel

1 The crimes occurred on September 26, 2015. On December 7, 2015, an

Effingham County grand jury indicted Vendrel for malice murder, three counts
of felony murder, two counts of aggravated assault, and one count each of
aggravated battery and possession of a firearm during the commission of a
felony. After a jury trial that ended on September 16, 2016, Vendrel was found
guilty on all counts. On that same day, Vendrel was sentenced to serve life in
prison without the possibility of parole for malice murder and a consecutive
five-year prison term for the firearms charge. The trial court purported to
merge the remaining counts for sentencing purposes, but the felony murder
counts actually stood vacated by operation of law. See Malcolm v. State, 263
Ga. 369, 372-373 (4), (5) (434 SE2d 479) (1993); Polke v. State, 315 Ga. 33, 33
n.1 (880 SE2d 153) (2022). Vendrel filed a timely motion for new trial, which
he amended through new counsel on June 21, 2019. After a hearing on October
30, 2019, the trial court denied the amended motion for new trial on May 26,
2020.
The deadline for filing a notice of appeal, which had been suspended on
March 14, 2020, was reimposed as of July 14, 2020. See Mobuary v. State, 312
Ga. 337, 339 (862 SE2d 553) (2021) (A “May 8, 2020 order was entered during
contends that he suffered a constructive denial of his right to counsel

or otherwise received ineffective assistance of trial counsel. Because

Vendrel has failed to carry his burden of proving either contention,

we affirm.

The State presented evidence at trial showing that, while they

were living together, Vendrel shot Saffles multiple times in the

the period in which nonconstitutional filing deadlines, including filing
requirements that were imposed on litigants by statute and court order, were
tolled by the Chief Justice’s March 14, 2020 Order Declaring Statewide
Judicial Emergency in response to the COVID-19 pandemic, as extended in
subsequent orders. See OCGA § 38-3-62 (a) (10). Pursuant to the Chief Justice’s
July 10, 2020 Fourth Order Extending Declaration of Statewide Judicial
Emergency, such deadlines were reimposed effective July 14, 2020.”). Thus,
Vendrel was required to file his notice of appeal by August 13, 2020. See OCGA
§ 5-6-38 (a) (requiring a notice of appeal to be filed within 30 days after the
entry of the order finally disposing of a motion for new trial). However, a notice
of appeal was not filed until September 29, 2020, and this Court dismissed the
appeal, Case No. S21A1105, as untimely on June 21, 2021. A motion for out-
of-time appeal was filed in the trial court on November 8, 2021, and was
granted on February 28, 2022, and a second, “out-of-time” notice of appeal was
filed on March 9, 2022, but in Case No. S22A0871, on May 3, 2022, this Court
vacated the order granting an out-of-time appeal and remanded the case for
entry of an order dismissing the motion pursuant to Cook v. State, 313 Ga. 471
(870 SE2d 758) (2022).
Vendrel then filed a petition for writ of habeas corpus on the ground that
he was entitled to an out-of-time appeal because he was denied his right to a
direct appeal through the ineffectiveness of his appellate counsel. On March
14, 2023, the habeas court granted relief and ordered that Vendrel would have
the right to file a notice of appeal. Vendrel filed a notice of appeal pursuant to
that order, and the case was docketed in this Court to the August 2023 term
and submitted for a decision on the briefs.
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chest, arm, and face, that he repeatedly confessed to the shooting,

and that he changed his story several times. Saffles was still

married to another man but had separated from her husband when

she and Vendrel began dating and moved into a house together,

along with Saffles’ adult daughter Sierra Seiler. Vendrel often

argued with Saffles. He became upset when she would spend time

with her estranged husband, and Vendrel threatened to kill him. On

September 26, 2015, Saffles and Seiler were out with Saffles’

husband and returned to Vendrel’s and Saffles’ home that evening.

Seiler testified that Vendrel “looked really mad” and “slid his hand

under the pillow” on the bed he shared with Saffles, but Seiler did

not see anything under the pillow. Seiler left the house to go back

out with a friend, and a short time later, a neighbor heard gunshots,

saw someone leave the house and drive away in a Geo Tracker

vehicle, and called 911.

Vendrel subsequently called his sister, and she called 911 and

provided Vendrel’s cell phone number to the dispatcher. The

dispatcher then called Vendrel, who said that he had a gun, “wanted

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to kill himself,” had “killed a female,” and was “sorry.” When officers

located Vendrel in a Geo Tracker parked at a friend’s residence,

Vendrel would not get out of the vehicle at first, saying that “they

were going to kill him because he had killed her”; that he “shot her

beca[us]e she was married and was cheating on him with her

husband and . . . was going to break up with him and go back to her

husband”; that “even God could not forgive him for what he did”; and

that he “wanted to die because he did not want to go to prison for

the rest of his life.” When Vendrel finally got out of his vehicle, he

was barefooted. The officers arrested him at that time and found a

large revolver in the vehicle.

The deputy who transported Vendrel to the county jail testified

that Vendrel “spontaneously” told her that Saffles “had contacts in

the jail”; said he was “sorry that he shot her”; asked “several times

if she was dead”; told the deputy “spontaneously that the reason he

shot her was because she was . . . playing with his emotions every

Friday and Saturday by telling him that she loved him and was

going to leave her husband to be with him”; and several times said

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that he “killed her and . . . was going to prison for life.” Later that

night, when GBI agents interviewed Vendrel, he told them that

Saffles had been “off somewhere” with her husband and daughter

“all day long” when “she was supposed to have come home to him.”

Vendrel also said that he had shot and killed Saffles with the

revolver found in his vehicle and that he had two other guns in his

house.

Two days after the shooting, although Vendrel had already

been arrested, a GBI agent returned to the jail for the sole purpose

of serving an arrest warrant on Vendrel to “complete . . . an arrest

record.” At that time, Vendrel stated, without being asked any

questions, that he had “pointed the gun” at Saffles, that she said

“just do it,” and that “the gun fired.” When the agent returned later

to complete an arrest form, Vendrel, again without being

questioned, “kind of made a motion that she had put her hands on

the gun or something like that and then it just fired.” Although

English is not Vendrel’s first language, he “kept trying to tell [the

agent] stuff,” and the agent advised Vendrel to talk to his attorney.

5
About two months later, the same agent again returned to the

jail to obtain buccal swabs from Vendrel. During that encounter,

Vendrel asked if fingerprints had been lifted from his .380-caliber

semi-automatic pistol because “that’s the one she used . . . against

me. I was defending myself.” The agent again advised him to talk

with his attorney. Another month later, on a recorded phone call

made by Vendrel from the jail, he said that “the first two shots were

into her chest and then the shot to the face was the last shot.”

Officers had discovered Saffles’ body on the kitchen floor of the

house where she and Vendrel lived. Blood was on the walls and floor

in different rooms of the house, including the kitchen door and the

floor near her body. DNA swabs of Vendrel’s feet tested positive for

Saffles’ blood. Officers found, on the passenger seat of Vendrel’s

vehicle, a Taurus Judge .410-caliber revolver, which can fire

shotgun shells as well as bullets. The revolver had a five-shot

cylinder with three live Winchester PDX1 rounds, one spent

Winchester Super X shotgun shell, and one empty chamber. Bullets

and bullet fragments, as well as pellets and wadding from a shotgun

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shell, were found in various parts of the house, including the kitchen

and the bedroom. Five shell casings recovered from Vendrel’s and

Saffles’ bed were Winchester PDX1 rounds that had been fired from

the Taurus Judge revolver found in Vendrel’s vehicle.

The medical examiner determined that Saffles was shot in her

chest and arm, that “multiple gunshot wounds” caused her death,

and that a large gunshot wound to the right side of her face likely

was inflicted after she was already deceased. The facial wound, from

which wadding and pellets were recovered, was consistent with a

.410 shotgun shell, while the other wounds were consistent with .410

PDX1 Defender rounds. The Taurus Judge revolver was designed to

fire both types of .410-caliber ammunition (as well as .45-caliber Colt

ammunition).

At trial, Vendrel presented three defense witnesses before

testifying in his own defense. The first defense witness, Scott

Shepard, who was Saffles’ co-worker and friend, responded to an

initial inquiry from Vendrel’s trial counsel – “This is the first time

you and I have ever met; is that right, sir?” – by testifying “[t]hat is

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correct.” Shepard described an incident involving Vendrel as follows:

the day before Saffles’ death, Shepard had waved at her in her car;

Vendrel was in the passenger seat and made an insulting gesture

towards him; Shepard texted Saffles, who answered that it was

Vendrel; Vendrel called Shepard on Saffles’ phone and threatened

him; and Shepard replied that he would “knock [Vendrel’s] teeth

out.” Shepard further testified that he never had any other incidents

with Vendrel; Saffles and Vendrel had arguments with each other

that at times “got bad”; Saffles never asked Shepard for help to leave

the relationship; and Shepard understood that Vendrel “was jealous

that [he] made [Saffles] laugh and that [she and Shepard] had a good

working relationship.”

The second defense witness, Vendrel’s former employer,

testified that Vendrel was a “loner” and a “great worker”; he had

“never seen [Vendrel] harassing anybody”; he would loan money to

Vendrel, who kept his word and “always paid it back”; he had

advised Vendrel and Saffles that their romantic relationship was

“not healthy” and was “not going to work out” as she was still

8
married; and he was “[v]ery surprised” at the crime because Vendrel

“idolized” Saffles. The third defense witness, Vendrel’s sister,

testified that she was aware of problems in his relationship with

Saffles; she counseled Vendrel to leave the relationship because

although he loved Saffles, she was a married woman; Vendrel was

afraid of Saffles’ husband; on the night Saffles was killed, Vendrel

called his sister, was “very distraught” and “upset,” and told her that

he had killed Saffles and was going to kill himself; and she then

called 911.

Vendrel testified in his own defense as follows. On the night of

her death, Saffles smelled like alcohol, started to argue with him,

and became violent. She first picked up the Taurus Judge revolver

and “put it in her mouth.” Vendrel tried to take it away from Saffles,

she aimed it at her face, and he took hold of the gun but “her hand

was on the trigger and it went off,” striking a wall and possibly

injuring her. Saffles then grabbed Vendrel’s .380-caliber pistol and

aimed it at his face. He feared for his life and “tried to stop her” by

firing the revolver at her, hitting her in the chest. Saffles pushed

9
Vendrel, and he slipped on a rug, fell against a door, and accidentally

fired another round that did not injure Saffles. Vendrel tried to get

out of the house, but Saffles grabbed and pushed the door he was

trying to use and pointed the .380-caliber pistol at him very close to

his face. Vendrel then shot Saffles in the middle of her chest, causing

her to fall and drop the .380-caliber pistol. Vendrel returned the

.380-caliber pistol to its holster, put it under the bed where he kept

it, and reloaded the revolver. When Vendrel went past Saffles to

leave the house, she was still alive, she reached up and grabbed the

revolver, he pulled back, and the gun fired accidentally.

After Vendrel was found guilty on all counts and convicted of

malice murder and the firearms charge, he filed a motion for new

trial, and at the hearing on that motion, Vendrel’s trial counsel

testified with respect to his representation as follows. He had

practiced law since 1990, and he had a general trial practice that

included a “heavy” caseload of misdemeanor cases and some felony

cases. He had handled felony jury trials, but this was the first

murder case that he tried as lead counsel. The fact that counsel

10
speaks Spanish, which is Vendrel’s first language, facilitated the

representation. Counsel reviewed discovery, was aware of ballistics

and DNA evidence, and spoke with law enforcement officers who

were witnesses for the State. Counsel decided not to request funds

to hire a ballistics expert or DNA expert because he and Vendrel

understood the evidence, Vendrel’s theory at trial was self-defense,

and, with or without an expert, counsel could ask the same

questions, such as questions pointing out the State’s failure to test

the firearms involved for fingerprints. Counsel met with Vendrel at

the jail “between four and eight” times, spoke with him by phone,

and used Vendrel’s sister as a “go-between.” Counsel took evidence,

including audio and video recordings, to the jail and reviewed it with

Vendrel. Counsel could not play one disc that he received from the

State late one afternoon during the trial (because he did not have

the “proper kind of player” with him that evening), but he asked for

a recess the next morning so that he could play the disc for Vendrel

on a DVD player in a side room at the court. Counsel interviewed

and prepared the defense witnesses prior to trial, but nevertheless

11
was at times caught “off guard” by their responses to his questions

at trial. Counsel did not specifically identify which individual

defense witnesses he interviewed. He discussed the case with

Vendrel, considered several issues like Saffles’ allegedly “being an

alcoholic or drinking” and Vendrel’s jealousy, and developed a

defense theory with Vendrel, based on his account of the events, that

Saffles “grabbed the gun in an argument in the bed that either was

attempted suicide by her or by him, and the gun went off,” followed

by her chasing him around the house. Counsel discussed with

Vendrel the conflicts between his testimony and the State’s

evidence, but Vendrel was “determined to testify.” About the

evidence from the medical examiner that the gunshot to Saffles’ face

likely occurred after her death, counsel “figured the jury could say

. . . [the] doctor could be a few minutes off.”

1. Citing United States v. Cronic, 466 U. S. 648, 659 (III) (104

SCt 2039, 80 LE2d 657) (1984), Vendrel first contends that trial

counsel failed to subject the State’s case to adversarial testing in any

meaningful way and that this failure amounted to a constructive

12
denial of Vendrel’s right to the assistance of counsel.

To obtain relief based on ineffective assistance of counsel, a

defendant generally must show both that his counsel’s performance

was constitutionally deficient and that this deficient performance

prejudiced him. See Strickland v. Washington, 466 U. S. 668, 687

(III) (104 SCt 2052, 80 LE2d 674) (1984). Cronic’s exception to the

general Strickland standard for a “constructive denial of the

assistance of counsel altogether,” which is “legally presumed to

result in prejudice,” id. at 692 (III) (B), is “a narrow one that applies

only when there was a breakdown in the adversarial process, such

that counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing.” Wainwright v. State, 305 Ga. 63, 68

(3) (823 SE2d 749) (2019) (citation and punctuation omitted). When

the United States Supreme Court “spoke in Cronic of the possibility

of presuming prejudice based on an attorney’s failure to test the

prosecutor’s case, [it] indicated that the attorney’s failure must be

complete.” Roberts v. State, 305 Ga. 257, 267 (6) (824 SE2d 326)

(2019) (citation and punctuation omitted). Thus, the attorney’s

13
failure “must occur throughout the proceeding and not merely at

specific points.” Wainwright, 305 Ga. at 68 (3). Allegations that trial

“counsel was ineffective at specific points of [the] trial do not meet

this stringent standard.” Burrell v. State, 301 Ga. 21, 23 (2) (799

SE2dd 181) (2017). See also Charleston v. State, 292 Ga. 678, 683 (4)

(a) (743 SE2d 1) (2013) (A defendant’s “assertion that his trial

counsel failed to act as an advocate on several occasions does not

meet this stringent standard.” (punctuation omitted)).

Vendrel argues that his trial counsel’s failure was complete, as

he was ill-prepared, failed to develop a coherent strategy or

plausible theory of the case, did nothing to prepare the defense

witnesses, and introduced evidence that bolstered the State’s case.2

But the record does not support his contention. To the contrary, the

record shows that counsel engaged in discovery and filed pre-trial

2 In the statement of facts in his appellate brief, Vendrel asserts that

counsel had practiced very little criminal law. But counsel’s testimony at the
hearing on the motion for new trial, as summarized above, shows that although
he had not tried a murder case as lead counsel, he did have significant
experience in criminal practice. Moreover, “[t]he mere fact that the attorney
may have been relatively inexperienced falls far short of demonstrating a
complete failure of the adversarial process.” Dulcio v. State, 292 Ga. 645, 650
(3) (a) (740 SE2d 574) (2013).
14
motions.3 And the transcript shows that counsel interviewed the

State’s witnesses, interviewed and prepared defense witnesses,

cross-examined most of the State’s witnesses, and presented a

theory of the case that was consistent with Vendrel’s trial testimony.

Under these circumstances, it cannot be said that counsel

completely failed to test the State’s case throughout the proceeding.

Even assuming (without deciding) that counsel failed to act as an

advocate on certain occasions, Vendrel has failed to establish that

counsel failed to subject the State’s case to adversarial testing in any

meaningful way and therefore does not meet the stringent standard

that raises a presumption of prejudice pursuant to Cronic. As a

result, Strickland’s two-part test remains the appropriate standard

to evaluate Vendrel’s claim of ineffective assistance. See Williams v.

State, 305 Ga. 776, 783 (2) (e) (827 SE2d 849) (2019) (“Even if [the

defendant’s] trial counsel failed to act as an advocate on the several

3 More specifically, counsel elected to proceed under reciprocal discovery

and filed general demurrers, a motion for a hearing pursuant to Jackson v.
Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964), and a motion to
suppress Vendrel’s statements.
15
occasions specified, [the defendant’s] assertion that his counsel

entirely failed to subject the State’s case to adversarial testing does

not meet the stringent standard that merits a presumption of

prejudice under Cronic, and therefore Strickland’s two-part test

remains the appropriate standard to evaluate his claims of

ineffective assistance.”). Accordingly, we turn to Vendrel’s

contention that counsel’s “discrete errors . . . still require reversal.”

2. Vendrel specifically contends that his trial counsel was

constitutionally ineffective in three ways. To satisfy the deficiency

prong of the Strickland test, the defendant “must show that his

attorney performed at trial in an objectively unreasonable way

considering all the circumstances and in light of prevailing

professional norms.” Lofton v. State, 309 Ga. 349, 360 (6) (846 SE2d

57) (2020). “This requires a defendant to overcome the strong

presumption that counsel’s performance fell within a wide range of

reasonable professional conduct, and that counsel’s decisions were

made in the exercise of reasonable professional judgment.” Scott v.

State, 306 Ga. 417, 419-420 (2) (831 SE2d 813) (2019) (citation and

16
punctuation omitted). “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.” Thomas v. State, 311 Ga. 706, 714 (2) (a)

(859 SE2d 14) (2021) (citation and punctuation omitted). The

defendant must also show that the deficient performance prejudiced

the defense, which requires showing that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland, 466 U. S.

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

to undermine confidence in the outcome.” Id. If an appellant fails to

show either deficiency or prejudice, this Court need not examine the

other prong of the Strickland test. See DeLoach v. State, 308 Ga.

283, 287-288 (2) (840 SE2d 396) (2020).

(a) Vendrel contends that he was denied the effective

assistance of trial counsel when trial counsel failed to interview the

defense witnesses before trial, which Vendrel says resulted in his

counsel inadvertently eliciting testimony on direct examination

17
about the volatile nature of Vendrel’s relationship with Saffles.

Vendrel argues that such testimony was detrimental to any

conceivable defense and would have been excluded as inadmissible

character evidence if offered by the State, and that any reasonable

interview would have revealed that counsel should not have called

the witnesses. Although the record contains evidence that counsel

had not met Shepard before trial, and does not specifically show that

counsel had interviewed Shepard, we have not found any indication

in the record that counsel failed to interview the other defense

witnesses, and Vendrel has not provided any citation to the record

in support of that claim. To the contrary, counsel testified that he

did interview and prepare defense witnesses. And, although the trial

court made no express factual findings or credibility determinations

in its order denying Vendrel’s motion for new trial, we presume that

the trial court implicitly credited counsel’s testimony in making its

decision. See Anthony v. State, 311 Ga. 293, 297 (3) (857 SE2d 682)

(2021) (“Although the trial court made no express factual findings or

credibility determinations in its order denying [the defendant’s]

18
motion for new trial, it was nonetheless authorized to credit the

testimony of [his trial] counsel, and in the absence of explicit factual

and credibility findings by the trial court, we presume implicit

findings were made supporting the trial court’s decision.

Accordingly, even though [the defendant’s] testimony contradicted

that of his counsel, the trial court implicitly credited counsel’s

version of events when it denied [the defendant’s] ineffective

assistance claim, and we accept the trial court’s factual findings.”

(citations and punctuation omitted)). Thus, with respect to the

defense witnesses other than Shepard, Vendrel has failed to make

any showing that counsel’s performance was deficient. See Young v.

State, 317 Ga. 57, 64 (3) (c) (891 SE2d 827) (2023) (Because the

defendant provided no citation to the record in support of his claim

that trial counsel failed to timely request a hearing on his motion to

suppress certain evidence and it does not appear that a

particularized motion to suppress that evidence was ever filed,

“counsel cannot be deficient for failing to request a timely hearing

on a non-existent motion,” and the defendant “has failed to show

19
that counsel’s performance was deficient in this respect, and has not

carried his burden of demonstrating that his trial counsel was

constitutionally ineffective.” (citation and punctuation omitted));

Lord v. State, 304 Ga. 532, 540 (7) (a) (820 SE2d 16) (2018) (Because

the defendant’s contention regarding the nature of certain testimony

to which trial counsel failed to object was “not factually supported

by the transcript,” any objection for the reasons argued by the

defendant would be misplaced and meritless, and therefore could not

amount to ineffective assistance.); Schutt v. State, 292 Ga. 625, 628

(3) (a) (740 SE2d 163) (2013) (holding that the trial court was

entitled to credit trial counsel’s testimony that he met with the

defendant’s parents and prepared them for their testimony).

As for the alleged failure to interview Shepard, even assuming

that trial counsel’s performance was deficient in that regard,

Vendrel has failed to show prejudice. Although Vendrel has

suggested that counsel would not have called Shepard if counsel had

“even briefly interviewed” Shepard, Vendrel has not explained how

omitting Shepard’s testimony would have been reasonably likely to

20
lead to a different outcome. See Harris v. State, 314 Ga. 370, 374 (2)

(a) (877 SE2d 255) (2022) (“A defendant claiming that his counsel

was underprepared must show that more preparation might have

produced something that would have made a difference in the

outcome of his trial. . . . [The defendant] has not explained how [a]

different approach was reasonably likely to lead to a difference in

the outcome of the trial.” (citation and punctuation omitted)).

Moreover, we are unable to discern a reasonable probability of a

different result at trial. Shepard testified to an insulting gesture and

threatening phone contact from Vendrel the day before Saffles’

death, apparently related to Shepard’s relationship with Vendrel.

Shepard’s testimony, however, was consistent with other testimony

about problems in the relationship between Saffles and Vendrel,

including further testimony by Shepard regarding Saffles’ and

Vendrel’s “bad” arguments with each other, that laid groundwork

for the defense theory of justification. And the evidence of Vendrel’s

guilt – especially his multiple confessions and changing stories,

ballistics evidence, and the medical examiner’s testimony – was

21
overwhelming. See Talley v. State, 314 Ga. 153, 162-163 (3) (a) (875

SE2d 789) (2022) (Although evidence of the defendant’s threat

against the victim that was related to a criminal enterprise “might

have reflected negatively on [the defendant], even if objectionable, it

was not particularly disparaging of [his] character when viewed in

context, especially given the strength of the other admissible

evidence against him.” (citation and punctuation omitted)).

(b) Vendrel also contends that his trial counsel rendered

ineffective assistance by failing to prepare Vendrel to testify,

resulting in the abandonment of any lawful defense that he might

have had. According to Vendrel, counsel did not meet with him

before trial to prepare him to testify or discuss his right not to testify

and, more specifically, did not discuss the State’s evidence or its

strength or caution him not to vilify the victim, but instead relied on

Vendrel’s sister to pass information back and forth. Once again,

however, Vendrel has not shown that these claims are factually

supported in the record, and counsel’s testimony contradicted

Vendrel’s claims. Indeed, Vendrel did not testify at the hearing on

22
his motion for new trial, while his trial counsel testified about

several meetings with Vendrel, in person and by phone, at which

counsel discussed the State’s evidence, discovered that Vendrel was

“determined to testify,” and developed a theory of self-defense based

on Vendrel’s account of the events. Moreover, evidence was

presented at trial that supported the theory of self-defense, and

Vendrel has not identified any other defense theory that counsel

should have pursued. Vendrel therefore has failed to make any

showing that counsel’s performance was constitutionally deficient.

See Young, 317 Ga. at 64 (3) (c); Wilson v. State, 313 Ga. 319, 323-

324 (2) (b) (869 SE2d 384) (2022) (“Because some evidence supported

the defense theory, and there was no other obviously stronger

defense theory available, Appellant has not shown trial counsel’s

decision to be patently unreasonable.”); Owens v. State, 298 Ga. 813,

817 (4) (783 SE2d 611) (2016) (Trial counsel “both honor[ed] [the

defendant’s] right to testify and preserve[d] her defense to the extent

possible. Accordingly, trial counsel’s performance was not deficient

in this case.”); Funes v. State, 289 Ga. 793, 796-797 (3) (c) (716 SE2d

23
183) (2011) (“The trial court’s decision to credit [trial counsel’s]

account of Appellant’s preparation to testify was not clearly

erroneous, and we cannot conclude that this level of preparation fell

below the broad range of reasonable professional conduct.” (citations

and punctuation omitted)).

failing to conduct factual research or consult with experts to prepare

to challenge the prosecution’s forensic evidence, which was crucial

to the State’s case. Vendrel argues that, as a result, counsel was

unable either to call his own experts in rebuttal or to cross-examine

the State’s experts intelligently. However, even assuming Vendrel

has shown that counsel was deficient in preparing for the State’s

expert witnesses, Vendrel has altogether failed to establish any

prejudice. At the hearing on his motion for new trial, Vendrel did

not present any testimony or affidavit of an expert witness to

substantiate his claim that relevant and favorable expert testimony

could have been presented to the jury in rebuttal of the State’s

experts. See Pauldo v. State, 317 Ga. 433, 437 (1) (a) (893 SE2d 633)

24
(2023) (“It is well established that a defendant fails to establish

prejudice under Strickland when he merely contends that trial

counsel was deficient for failing to present an expert, without also

presenting evidence at the motion-for-new-trial hearing about what

the potential expert would have testified to at trial.”); Allen v. State,

317 Ga. 1, 11 (4) (b) (890 SE2d 700) (2023) (To make the required

affirmative showing of the prejudicial effect of trial counsel’s failure

to call a witness, “[e]ither the uncalled witness must testify or the

defendant must introduce a legally recognized substitute for the

uncalled witness’s testimony.” (citation and punctuation omitted));

Patterson v. State, 314 Ga. 167, 178 (3) (g) (875 SE2d 771) (2022)

(“Appellant failed to present an expert witness to testify at the

motion-for-new-trial hearing to substantiate his claim that the

witness’s testimony would have been relevant and favorable to his

defense. Therefore, Appellant has failed to show that there is a

reasonable probability the result of his trial would have been

different because there is no evidence as to how a potential expert

witness would have testified.”). Likewise, Vendrel has failed either

25
to show how the State’s expert witnesses should have been cross-

examined or to call any of those witnesses at the motion-for-new-

trial hearing to demonstrate how their testimony would have

differed if cross-examination had been different. See Harris v. State,

314 Ga. at 374 (2) (a) (holding that the defendant failed to show “any

prejudice arising from any lack of preparation on counsel’s part” for

the testimony of a witness for the State, where the defendant had

“not even suggested what avenues his trial counsel left unexplored

in his cross-examination, and [the witness] did not testify at the

hearing on [the defendant’s] motion for new trial”).

3. Vendrel contends that the cumulative effect of his trial

counsel’s alleged deficient performance in this case caused actual

prejudice to the defense. In Division 2, we assumed counsel’s

performance was deficient in two ways – failing to interview

Shepard and failing to prepare for the State’s expert witnesses – but

concluded that Vendrel failed to establish that either assumed error

of counsel prejudiced his defense. Vendrel also has not shown that

these two assumed deficiencies, considered together, created a

26
reasonable probability that the results of the proceeding would have

been different in their absence, so his claim of cumulative prejudice

fails as well. See Allen v. State, 317 Ga. 1, 13 (4) (f) (890 SE2d 700)

(2023).

Judgment affirmed. All the Justices concur.

318 Ga. 233
FINAL COPY

S23A1024. VENDREL v. THE STATE.

ELLINGTON, Justice.

Luis Vendrel appeals his convictions for malice murder and

possession of a firearm during the commission of a felony in

connection with the shooting death of Nova Jill Saffles.1 Vendrel

1 The crimes occurred on September 26, 2015. On December 7, 2015, an

Effingham County grand jury indicted Vendrel for malice murder, three counts
of felony murder, two counts of aggravated assault, and one count each of
aggravated battery and possession of a firearm during the commission of a
felony. After a jury trial that ended on September 16, 2016, Vendrel was found
guilty on all counts. On that same day, Vendrel was sentenced to serve life in
prison without the possibility of parole for malice murder and a consecutive
five-year prison term for the firearms charge. The trial court purported to
merge the remaining counts for sentencing purposes, but the felony murder
counts actually stood vacated by operation of law. See Malcolm v. State, 263
Ga. 369, 372-373 (4), (5) (434 SE2d 479) (1993); Polke v. State, 315 Ga. 33, 33
n.1 (880 SE2d 153) (2022). Vendrel filed a timely motion for new trial, which
he amended through new counsel on June 21, 2019. After a hearing on October
30, 2019, the trial court denied the amended motion for new trial on May 26,
2020.
The deadline for filing a notice of appeal, which had been suspended on
March 14, 2020, was reimposed as of July 14, 2020. See Mobuary v. State, 312
Ga. 337, 339 (862 SE2d 553) (2021) (A “May 8, 2020 order was entered during
the period in which nonconstitutional filing deadlines, including filing
requirements that were imposed on litigants by statute and court order, were
tolled by the Chief Justice’s March 14, 2020 Order Declaring Statewide
Judicial Emergency in response to the COVID-19 pandemic, as extended in
subsequent orders. See OCGA § 38-3-62 (a) (10). Pursuant to the Chief Justice’s
contends that he suffered a constructive denial of his right to counsel

or otherwise received ineffective assistance of trial counsel. Because

Vendrel has failed to carry his burden of proving either contention,

we affirm.

The State presented evidence at trial showing that, while they

were living together, Vendrel shot Saffles multiple times in the

chest, arm, and face, that he repeatedly confessed to the shooting,

and that he changed his story several times. Saffles was still

July 10, 2020 Fourth Order Extending Declaration of Statewide Judicial
Emergency, such deadlines were reimposed effective July 14, 2020.”). Thus,
Vendrel was required to file his notice of appeal by August 13, 2020. See OCGA
§ 5-6-38 (a) (requiring a notice of appeal to be filed within 30 days after the
entry of the order finally disposing of a motion for new trial). However, a notice
of appeal was not filed until September 29, 2020, and this Court dismissed the
appeal, Case No. S21A1105, as untimely on June 21, 2021. A motion for out-
of-time appeal was filed in the trial court on November 8, 2021, and was
granted on February 28, 2022, and a second, “out-of-time” notice of appeal was
filed on March 9, 2022, but in Case No. S22A0871, on May 3, 2022, this Court
vacated the order granting an out-of-time appeal and remanded the case for
entry of an order dismissing the motion pursuant to Cook v. State, 313 Ga. 471
(870 SE2d 758) (2022).
Vendrel then filed a petition for writ of habeas corpus on the ground that
he was entitled to an out-of-time appeal because he was denied his right to a
direct appeal through the ineffectiveness of his appellate counsel. On March
14, 2023, the habeas court granted relief and ordered that Vendrel would have
the right to file a notice of appeal. Vendrel filed a notice of appeal pursuant to
that order, and the case was docketed in this Court to the August 2023 term
and submitted for a decision on the briefs.
2
married to another man but had separated from her husband when