Senior v. The State - Appeal of Malice Murder Conviction

In th e Supr eme C ourt o f Georg ia Decided: Ma rch 3, 2026 S26A051 0. SENIOR v. THE STATE. P ETERSON, Chief J ust ice. Oscar Seni or ap peals his conv icti ons fo r mal ice mu rder and other of fens es, st emm ing from the 2012 sh ooti ng of Ch arles Wi lli s. 1 1 The crimes took place on April 13, 2012. On July 9, 2013, a Muscogee County grand jury returned an indict ment charging Senior with the malice murder and felony murder of Willis, the aggravated assault of Do uglas Body, possession of a firea rm during the com mission of a felony, and possession of a firearm by a c onvicted felo n. At a n April 201 4 trial, a ju ry found S enior guilty of all counts, except the felon - in - possession count, which ha d been bifurcated for trial and w as eventually nolle pross ed. The trial co urt sentenced Seni or to life in prison withou t the possibility of p arole for malice mur der, a concurrent sentence of 20 years in priso n for aggravated assa ult, and a consecutive sentence of five years in prison for possessi on of a fi rearm during the commission of a felony. The trial court purported to merge the felony murder count into malice murder, not withstanding that t he felony murder count in fact was vacated b y operation of l aw. S ee Malcolm v. State, 263 Ga. 3 69, 372 (1993). On April 29, 2014, Senior filed a motion for new trial, amended by new counsel on Decembe r 5, 2019. Following a hearing in Jan uary 202 0, the trial court denied the mo tion in an order ent ered on Febru ary 14, 2020. Sen ior did not file a timely n otice of appeal. Senior filed a petition f or a writ of habea s corpus, which was granted in a n order entered on October 14, 2025, providi ng the limited relief of an out -of- ti me app eal based on ineffec tive assistanc e of counsel in failing to file a timely notice of appeal. A notice of appeal of Senior’s NOTICE: T his opini on is subje ct to mo dificat ion res ultin g from motion s for re consi derat ion unde r Supre me C ourt Rule 27, the Court ’s recons ideratio n, and edit orial rev isions by t he Report er of Decisi ons. The ver sion of the opinion publis hed in the Advance Sheets fo r the Geor gia Report s, desig nated as th e “Final Co py,” will replace a ny prior version on the Court’s websi te and docket. A bound volu me of the Georgi a Reports will con tain the final a nd officia l text of t he opinio n.

2 His so le enumeratio n of error is that his trial couns el was ineffe ctive for f aili ng to i mpeach two of th e S tate’s wi tness es with thei r pri or felo ny convict ions. We concl ude t hat an y de ficien t per form ance b y couns el in thi s regard did not p rej udi ce Sen ior, an d s o we a ffirm. The ev iden ce ad mi tted at tri al 2 showe d that on t he aftern oon of Apr il 13, 2012, Willis was driving his cousin D ouglas Bod y in a car in Mus cogee C ounty. When th ey stop ped at a st op sig n, th ey saw Senior, wi th w hom th ey w ere acquai nted, and hi s girl frien d, Vinyett a Longino, walking along t he road way. Willis said somet hing to Seni or. Senior p ulled o ut a han dgun and fi red at th e car, fa tally shoo ting Willis in the hea d. War ran ts for Seni or’s arrest we re is sue d shor tly after the shoo ting, b ut he wa s not a pprehend ed until mor e than fi ve mon ths l ater, on Sept emb er 27, 2 012, after pol ice r ecei ved a call about a man run ning throug h som eone’s yard. W hen arr ested, judgment of convict ion was filed by ha beas counsel on Octo ber 28, 2025. Th e case was dockete d to this Court’s term of court beginning in December 2025 and submitted for c onsideration on the briefs. 2 Because th is case involves question s of prejudice u nder Strickland v. Washington, 46 6 US 668 (1984), the trial evid ence is descri bed in some det ail rather than only in the light most favora ble to the jury’s verdicts. See Asmelash v. State, 323 Ga. 33, 34 n.2 (2025).

3 Senior ap pea red d isheveled, “like he had been [living ] on the street, ” and he was carr ying a too thbrus h. He resis ted officers’ att empt to restrai n hi m up on arr est. Longino, Body, and other wit nesses te stified at tr ial and impl icated Senio r as the sh ooter. Longino te stified that a s she a nd Senio r were walking with t heir baby, a red ca r pul led up and sh e heard th e driver say, “What’s up, Oscar?” Lo ngino test ified on d irect that wh en Seni or d id not res pond, sh e hea rd th e driv er say, “O h, y ou ain’t g oing to s peak to your boy, Ch arles. ” Longino t estifie d that Senio r then pulled out a gun and start ed shoot ing. Longino ne ver hea rd a threa t from the ca r or s aw anyon e besid es Sen ior wi th a gun. On cr oss - examinat ion, as recount ed in the tra nscript, Lo ngino agreed w ith def ens e coun sel th at wh en Seni or did n ot resp ond t o th e driver of th e r ed ca r, th e dri ver s aid, “Oh, i t’s l ik e that, N - w ord? You’r e not goin g to s peak to y our N - word?” Body t estifie d that whe n he and Willis saw S enior o n the d ay of the shooting, Willis said, “Hey, Os car, this is your ho meboy, Charl es,” an d “t hr[e]w a hand u p.” Se nior did not respo nd to the

4 greeti ng bu t tol d h is g irlfri end t o tak e the baby hom e, be fore he starte d shoo tin g at the car. Body testifi ed that he s aw that Senior had a revolver in his ha nd. Body saw Se nior running down t he street afte r the shoo ting s topped. Body test ified that Willi s did not have a weapon and did n ot make an y v erb al thr eats. On cross examinat ion, defen se cou nsel att empted to s how that the re we re in consis tencies between Body ’s trial tes timon y an d prior stat eme nts, s ugg estin g that Bod y’s v iew may h ave been i mpeded. Defe nse counsel a lso elicit ed Body ’s testimo ny that he heard six t o eight shot s. Jose ph Banks te stified that he was st anding in f ront of a house when he he ard gunshot s. Banks t estif ied t hat h e r an towa rd t he sound a nd sa w Willis lying o n the gr ound blee ding and Se nior running aw ay. He saw a rev olv er in Seni or’s han d. Banks did no t see anyon e nea r the c ar w ith a gu n wh en h e went to ren der aid t o Willis. Defens e cou nsel asked B a nks on ly on e questi on on cros s - exami nation, con firming t hat he h ad seen a r evolv er. Erica Childre ss testif ied that she was sitting o n her front po rch when she saw the shoot ing. Sh e identif ied the sh ooter a s “Oscar, ”

5 whom she also refer red t o as “ Wolf.” Childress test ified that she saw “Wo lf” push his gi rlfr iend dow n a hill with the str oller bef ore turning aro und and shooting. Childr ess did no t see a gun nea r the vic tim. The ev iden ce sho wed fou r bul let hol es in the dri ver’ s si de doo r of W illis’s car. Inves tigat ors c oll ected eigh t bul let f ragm ents from the ins ide of W illis’s ca r. Inv estig ato rs al so fou nd tw o bull et hol es throug h th e outsi de wal l of a nea rby h ome, at leas t one bu ll et jack et ins ide the res id ence, and a bull et h ole in a tire of an other c ar pa rked in fron t of th e re siden ce. The medic al exa miner tes tified that the only signif icant finding in Wil lis’s autop sy was a gunshot wound to the he ad, and she found six f ragments of a single bullet in his bra in. Senio r did not t estify at tria l. In his def ense, Senio r intro duced eviden ce that on Octobe r 1, 2012, police re cove red a gun in a yard near th e si te o f Sen ior ’s ar rest. He also cal led as w itn esses G BI fire arms and f ingerprints experts. Although not e ntire ly clear in t he record, it appear s that th e revolver refer red t o by th e fir earms and fing erprin ts ex pe rts i s th e rev olve r th at w as f oun d near the sit e of Senior ’s ar rest. Asked how man y s hots a rev olv er “[t]ypi call y” hol ds,

6 the GBI fi rearm s exp ert t estifi ed that a Smith & Wess on rev olv er “ will ho ld five to six sho ts.” On cross - examin ati on by th e State, the firearm s ex pert testi fied tha t th e bul let f ragmen ts recov ered durin g Willis’ s auto psy did no t match th e Smith & Wesso n .38 - ca liber special rev olver th at she was g iv en to test. A GBI finger print exami ner c all ed b y the defen se test ifi ed th at she re ceive d a Smith & Wesson rev olve r and seve ral ca rtridg es, that the g un and f our cartrid ges w ere “posi tiv e” f or lat ent fi nger prin ts, and that th e finger print s found on the gun d id not match Se nior. The finge rprint exami ner c larif ied that only one of the items that she r ecei ved, a cartrid ge, h ad a l atent prin t “of val ue,” and that pr int d id not ma tch Senio r. T he defens e elici ted the fi ngerpri nt exam i ner ’s tes timon y that she reque sted Willis’ s pr ints but did no t receiv e them. During c losing ar gument s, defens e counse l argued tha t the eviden ce sh owe d th at the re w as “an oth er sh oot er” in th e cas e. Amon g other poi nts, c oun sel rel ied on Body ’s an d B anks’s testi mony that S enior h ad a r evolv er, as w ell as the ph ysi cal ev iden ce an d Body’s t esti mony that h e he ard si x to ei ght sh ots, to argue th at th ere

7 were m ore sh ots fired than was p ossibl e from a re vol ver, creating reason able doubt that Sen ior w as the on e w ho fat all y sh ot Wi lli s. Counse l also sugge sted tha t Senior may hav e b een pr ovoked in som e way, n otwit hstan din g th at the tri al cou rt al ready had d enied the defen se re quest f or a jury charg e on volun tary mans lau ghter. In h is amen ded m otion for n ew t rial, Sen ior arg ued that trial couns el was ineffe ctive for fa iling to invest igate thor oughly the crimina l histo ries of the prosec ution witne sses. At t he motio n for new tr ial hear ing, p ost - convic tion c ounsel s ought the admiss ion of written rec ords of s everal con victi ons of B ody an d Ban ks i n Muscog ee Cou nt y Sup erior C ourt, desc ribi ng the convict ions as for burgl ary an d th eft by bri ng ing stol en p roper ty in to th e s tate for Body; and p osses sion of a con troll ed su bstan ce an d an oth er, unspec ified, felony convict ion for Banks. 3 The tria l court denied the 3 The State lodged n o objection to admis sion of the documents, but the transcript does not s pecify that the documents were ad mitted by the trial co urt, and they do not ap pear to be containe d in the record on a ppeal. In its or der denying the motion for new trial, the tri al court state d that certified c opies of Body’s and Banks’ s prior fel ony convictions “wer e entered i nto evidence at th e hearing.” The trial court’s order also stated that Body’s convictions were “1 2 and 14 years old ” and Banks’s co nvictions “were n ot so remote at approximately 8 an d 9 years.”

8 motio n for ne w trial, co ncluding: “Given t he tota lity of the evid ence in the ca se, and given t he indepe ndent te stimony o f Erica Childr ess, the Cou rt fi nds th at the Defen dan t has f ail ed to meet the s econd prong o f the t est; he has not sh own that, a bsent un profess ional errors on coun sel’ s part, (which this Co urt is not neces sarily find ing) the re sult of t he trial would have bee n differe nt.” On appeal, S enior ar gues that he recei ved inef fectiv e assis tance of co unsel in tha t trial c ounse l did no t intro duce pr ior convic tions to impe ach t wo key pr osecu tion wi tnes ses, pr esum ably Body an d Ban ks. 4 To p revail o n his ineff ect iveness c laim, Se nior must s how th at (1) hi s tri al counsel ’s p erfo rmanc e was cons titutio nally def icient and (2) he was prejudice d by counse l’s defici ent p erfo rm ance. See Strickla nd v. W ashingto n, 46 6 US 668, 687 (1 984). I f Se ni or fails to est abl ish one of the se t wo pron gs, “we need not examin e the other.” Robins on v. State, 308 Ga. 54 3, 553 4 Senior’s six - page b rief does not identif y Banks and Body by name as the witnesses at iss ue. He contends th at counsel “failed t o introduce felon y convictions to impea ch two key witness es called for prosecut ion” but the record citation for that statement do es not correspond to a nything relevant in the record.

9 (202 0). To est abl ish prejudi ce, Se ni or “must sh ow th at ther e is a reason able p roba bil ity th at, but f or c oun sel’s u npro fessi onal err or [], the resu lt of the p roceed ing woul d have been diffe ren t. A reas onabl e prob ability is a prob ability suf ficient t o unde rmine co nfidenc e in the outcom e.” St rickla nd, 466 US at 694. “In revi ewi ng a claim of ineff ective a ssistanc e of counsel, we de fer to the trial cour t’s findings of fa ct un less the y a re cle arly err on eous, but we appl y the law t o th e facts d e nov o.” St ate v. S pratlin, 305 Ga. 585, 59 1 (2019). Assuming witho ut de ciding t hat counsel perform ed def iciently as all eged, we co nclu de that S eni or has n ot m et his burden t o sho w prejudi ce. B esid es th e testi mony of B ody an d Ban ks, Sen ior wa s impl icated as th e shoot er by the t esti mony of two o ther eye wit nesses, including the m other of his child. The evidence of Senio r’s guilt a lso inc luded eviden ce that Senio r had ev aded a rrest whi le su bject to a n arr est wa rran t. See Adam s v. St ate, 318 Ga. 105, 112 (2024) (att empt t o ev ade arr est con sti tutes cir cumstan tial evide nce of cons ciousnes s of guilt); State v. Orr, 305 G a. 7 29, 741 (2019) (fac t of an accu sed ’s fli ght or resist ance to a rrest i s evi den ce

10 of consci ousness of guilt and t hus guilt itse lf). And Seni or has offe red no spec ific ar gument as to how tria l couns el coul d have us ed the convic tions of Body and Banks t o challeng e their credib ility under the sp ecifi c f acts of th is ca se. Indee d, d oing so may have undermined Senior ’s def ense stra tegy — whi ch reli ed in par t on Body’s an d Bank s’s tes tim ony th at th ey saw S enior wi th a rev olver that may not hav e been capa ble of fi rin g as many shots as at least som e eviden ce sug gest ed had been fired — while not se rving to c hallenge the in cul patory ey ewitn ess t esti mony of Longino a nd Childre ss. Theref ore, w e co nclu de that S eni or has n ot show n p rejudi ce from any de ficie nt perfor mance b y trial couns el in fa iling to introduc e the witnes ses’ convict ions. See Clark v. State, 307 Ga. 537, 542 – 43 (2019) (no preju di ce from co unsel’s f ailure to impeach wit ness wit h felo ny convict ions, g iven tha t counsel imp eached witness in o ther ways, w itn ess’s accou nt w as sim ilar to th at of ano th er witn ess, and any di ffer ences i n the accou nt may h ave b een ben efici al t o the defen dant); Allen v. State, 286 Ga. 3 92, 39 8 – 99 (20 10) (even assum ing defici ent p erf orman ce in c oun sel’s fai lure t o c ross -

11 exami ne wi tness w ith reg ard to purpo rted pendi ng c rim inal charg es, no pre judice shown given evid ence of guilt apa rt from witne ss’s testimony). Judgment a ffir med. All the Justices concur.