Johnson 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

No. S26A1017

Garry Deyon Johnson

v.

The State

On Appeal from the Superior Court of Burke County

No. 1998R0058

Decided: September 9, 2026

LAND, Justice.

Appellant Garry Deyon Johnson was convicted of malice murder and robbery in relation to the death of Irene Shields. 1 On appeal, Johnson argues that there was insufficient evidence to support his convictions. He also argues that his counsel rendered constitutionally ineffective assistance by failing to impeach State

1 The crimes occurred on December 27, 1997. On February 19, 1998, a Burke County grand jury indicted Johnson, charging him with malice murder (Count 1) and robbery (Count 2).

At a trial held from November 6 to 14, 2000, a jury found Johnson guilty of both counts. On November 17, 2000, the trial court sentenced John- son to serve life in prison without the possibility of parole for Count 1 and a consecutive 20 years in prison without the possibility of parole for Count 2.

Following the filing of several post-trial motions, including two motions for new trial filed November 14, 2000, and December 18, 2000 – discussed in detail in Division 5(a) below – and a long and unexplained delay, the trial court denied Johnson’s motions for new trial on December 1, 2025. Johnson timely filed a notice of appeal on December 19, 2025. This case was docketed to the April 2026 term of this Court and submitted for a decision on the briefs.

witness Rickey Johnson and to object to a certain line of question- ing at trial. Further, he contends that the prosecution erred by failing to correct Rickey’s testimony regarding his plea deal. Fi- nally, he asserts that he was prejudiced by the delays he experi- enced in his post-trial proceedings. For the reasons that follow, we affirm.

1. The evidence presented at trial showed as follows. John- son and Shields were in a relationship, but, as it deteriorated, they both wanted the other person to move out of their shared apartment. In the weeks prior to Shields’s death, Shields had told her mother and Rhonda Bailey, a friend of the couple, that John- son had threatened to kill her and her children. Shields’s daugh- ter also overheard Johnson threaten to kill Shields, and Johnson told Bailey directly that he would “kill [Shields] and the kids.”

On December 24, 1997, Shields and her children went to stay at Bailey’s house because Shields was afraid of Johnson. Around 3:00 p.m. on December 27, Shields left Bailey’s house – driving a gold Ford Explorer – to go to work and told Bailey that she was going to stop by the apartment she shared with Johnson to check the mail on her way. When Shields had not returned by 9:30 p.m., Bailey called the police to report Shields as missing.

Rickey – Johnson’s brother – testified that, on December 27, Johnson was driving him around town in a brown Honda Ac- cord. 2 Johnson told Rickey that he was going to the apartment he shared with Shields to “see if that b***h is there” and, if she was, he “might do something to her.” They arrived and saw a Ford Ex- plorer parked outside. When they entered the apartment, John- son “went straight to the bedroom,” Rickey heard “[Johnson] and a girl arguing,” and then Johnson said, “B***h, I’m going to do

2 According to Rickey, Johnson was wearing Timberland boots.

you before you do me.”

Johnson came out of the bedroom 30 to 45 minutes later and said, “I’ve got to do something. … I’m going to tape her up and drop her off on the side of the road.” Johnson took a roll of duct tape back into the bedroom and told Rickey to “wait around … [un]til it gets dark.” Johnson later came out carrying Shields – who was conscious but had duct tape over her mouth – across his right shoulder. Johnson put Shields in the Explorer, told Rickey to follow him in the Accord, and drove off.

Rickey followed Johnson for a while before “los[ing]” the Explorer, but he later met up with Johnson. After they met up, Johnson “wiped the Explorer down, and got back in [the Accord] with [Shields’s] purse,” leaving the Explorer “in front of [a] store.” As Rickey drove down the highway, Johnson was “throwing stuff [from Shields’s purse] out of the car window,” including a wallet and a telephone book.

They went back to the apartment, and Johnson put the clothes he was wearing and some duct tape into trash bags. They washed down the Accord, dropped the trash bags off at another apartment complex, and drove to their mother’s house. Johnson told Rickey, “I’m not taking the rap for this. … Man, keep your mouth closed, ‘cause, if you say anything, the same thing will hap- pen to you that happened to her.” As he was leaving, Johnson said, “I need to go back down here and check on this b***h and see if she’s alive.”

Johnson’s then-girlfriend testified that, around 12:00 p.m. on December 27, Johnson left her house, wearing Timberland boots and driving her brown Honda Accord. They had made plans for 4:00 p.m. that afternoon, but Johnson told her that he was delayed because he “went to [the apartment] and that [Shields] had come there and started shooting at the house, and that … he was dealing with that.” Johnson arrived back at his girlfriend’s house around 10:30 p.m. 3

One witness testified that he saw two cars stop on the side of the road around 8:30 p.m. that night and stay there for approx- imately 45 minutes. Another witness testified that, on the morn- ing of December 28, he was walking down the same road; he no- ticed “[d]rag marks across the road,” followed them towards the woods, and discovered Shields’s body laying in a “rut.” Other wit- nesses testified that they found Shields’s belongings – including a phone directory, a wallet, and a purse – along the side of a nearby highway.

Investigators arrived at the location where Shields’s body was found. There was a sock stuffed in Shields’s mouth, which was covered with duct tape, and her wrists and ankles were bound with socks, shoestrings, duct tape, and telephone wire. In the area around Shields’s body, investigators observed shoe prints contain- ing the “Timberland” logo; a gold hoop earring that matched one found on Shields’s body; a “heavy concentration of tire impres- sions and tracks and dredge marks in the road that appeared to have been caused by a vehicle”; and “drag marks or lines where something had been drug across the roadway.”

Investigators also located a gold Ford Explorer on the side of the road near where Shields’s body was found. They observed shoe prints coming from the driver’s side – which were “similar in tread design to the ones that were at the scene of the body.” 4 There was blood spatter found both inside and on the undercar- riage of the Explorer. Investigators also recovered some duct tape

3 Johnson’s girlfriend later found a credit card in her Accord belonging to “Irene … Fluellen.” Fluellen was Shields’s married name.

4 Investigators also found a used cigarette on the ground that, accord- ing to a DNA expert, contained Rickey’s DNA.

from the apartment that had blood spatter on it, and a DNA ex- pert testified that the blood on both the duct tape and on the Ex- plorer contained Shields’s DNA. A microanalysis expert also tes- tified that any of the four tires on the Ford Explorer “could have” produced the tracks found near Shields’s body.

According to the medical examiner, Shields suffered exten- sive injuries to her face and head, over 20 broken bones in her chest, and multiple ruptured organs. The examiner concluded that Shields died from multiple blunt force injuries.

Johnson was arrested in connection with Shields’s death. At the time of his arrest, Johnson was wearing Timberland boots. A microanalysis expert compared impressions made from John- son’s boots to the shoe prints left at both scenes and testified that it was “highly unlikely” that a shoe other than Johnson’s boots made the prints. 5 Rickey was also taken into custody and charged with hindering the apprehension of a criminal.

At trial, Johnson testified in his own defense. He claimed that he drove Rickey around until about 5:00 p.m., dropped him off, and then went “riding around” for 20 to 30 minutes. He testi- fied that he then went to the apartment he shared with Shields but did not see anyone. Around 9:00 p.m., he left the apartment, picked up Rickey, took him to their mother’s house, and then went to his girlfriend’s home for the night.

2. Johnson contends that the evidence presented at trial was insufficient to support his convictions for malice murder 6 and

5 Specifically, the microanalysis expert testified that a rock was lodged in the heel of Johnson’s right boot, and the prints at the scene reflected an obstruction in the same place.

6 “A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of an- other human being.” OCGA § 16-5-1(a).

robbery 7 because the State failed to “prove [his] guilt beyond a reasonable doubt” or “provide physical evidence that eliminated every reasonable suspect besides [him].” We disagree.

When we consider the sufficiency of the evidence as a mat- ter of constitutional due process, we view the evidence in the light most favorable to the verdict and evaluate whether any rational trier of fact could have found the defendant guilty beyond a rea- sonable doubt of the crimes of which he was convicted. See Jack- son v. Virginia, 443 US 307, 319 (1979). “Under this review, we must put aside any questions about conflicting evidence, the cred- ibility of witnesses, or the weight of the evidence, leaving the res- olution of such things to the discretion of the trier of fact.” Daven- port v. State, 309 Ga. 385, 388 (2020) (citation omitted).

Viewed in the light most favorable to the verdicts, Rickey’s testimony strongly supports Johnson’s guilt for both convictions. Rickey heard Johnson’s initial plan to find and “do something” to Shields, and then his further intention to “tape [Shields] up and drop her off on the side of the road.” He then watched Johnson place Shields, who was bound and gagged, in a gold Ford Explorer and drive off to an unknown location. When Rickey later picked up Johnson, he was alone, but he had Shields’s purse and its con- tents, which he threw on the side of the road. Rickey also saw Johnson wipe down the Ford Explorer and discard the clothes that he had been wearing that night.

In addition, several witnesses heard Johnson threaten to kill Shields in the weeks leading up to her murder. Other wit- nesses found Shields’s belongings thrown on the side of the road

7 “A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another … [b]y use of force[.]” OCGA § 16-8-40(a)(1).

in the days following her death. And the physical evidence at the scene was extensive – including the tape and other bindings used on Shields’s body, Timberland boot prints in the area that matched impressions made by the boots Johnson was wearing, tire tracks around Shields’s body that could have been made by the Ford Explorer, and Shields’s DNA on duct tape at the apart- ment as well as inside and on the undercarriage of the Ford Ex- plorer. In short, we conclude that the evidence presented at trial was constitutionally sufficient to support Johnson’s convictions and that the jury was authorized to find beyond a reasonable doubt that Johnson was guilty of the malice murder and robbery of Shields. See Jackson, 443 US at 319. 8

8 To the extent that Johnson also argues that the evidence was insuf- ficient as a matter of Georgia statutory law under former OCGA § 24-4-6, this claim fails as well. Because Johnson was tried in 2000, our former Evidence Code applies. Under former OCGA § 24-4-6, where a conviction is based 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.” But “not every hypothesis is a reasonable one; the evidence need not exclude every conceivable inference or hypothesis – only those that are reasonable.” Blevins v. State, 291 Ga. 814, 816 (2012) (cleaned up) . “Whether an alternative hypothesis is reasonable is a question committed principally to the jury” and this Court “will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law.” Id. (citation and punctu- ation omitted).

Here, the was jury was authorized to determine that the proved facts were not only consistent with Johnson’s guilt but that they also excluded every other reasonable hypothesis as to how Shields died. See Blevins, 291 Ga. at 817. Specifically, the jury could have accepted Rickey’s account and all of the other supporting evidence and rejected Johnson’s testimony that he “[rode] around” that evening and then sat alone at home. See Bryant v. State, 282 Ga. 631, 633 (2007) (holding that jury was authorized to disbelieve alibi testimony).

3. Johnson argues that his trial counsel rendered constitu- tionally ineffective assistance in two respects. For Johnson to pre- vail on his ineffective assistance claims, he must prove both defi- cient performance by his trial counsel and resulting prejudice. See Strickland v. Washington, 466 US 668, 687 (1984). To show defi- ciency, Johnson must establish that trial counsel performed his duties in an objectively unreasonable way, considering all the cir- cumstances and in the light of prevailing professional norms. Id. at 687–88. The law recognizes a “strong presumption” that coun- sel performed reasonably, and the defendant bears the burden of overcoming this presumption. Id. at 689.

Even if Johnson proves that his counsel’s performance was deficient in this constitutional sense, he also must prove resulting prejudice. To satisfy the prejudice prong, Johnson must show that, but for his counsel’s unprofessional errors, there is a “rea- sonable probability” that the outcome of the proceeding would have been different. Id. at 694. And “[i]f either Strickland prong is not met, this Court need not examine the other prong.” Fraser v. State, 322 Ga. 544, 547 (2025) (citation omitted). For the rea- sons given below, we conclude that Johnson has not established his trial counsel’s deficiency and, accordingly, his ineffective as- sistance claims fail.

(a) Johnson first argues that his counsel provided ineffec- tive assistance by failing to impeach Rickey with his plea deal and sentence. Specifically, he argues that counsel failed “to introduce evidence of [the] plea deal … including the signed agreement” be- tween Rickey’s attorney and the District Attorney. 9

9 This agreement, drafted by Rickey’s attorney, stated:

I enclose herewith a change of plea form and a waiver form (i) In January 1998, Rickey gave two statements to inves- tigators describing Johnson’s crimes against Shields. He also took investigators to the scene of the crimes and explained to them what he witnessed.

In May 1998, Rickey pled guilty to one count of hindering the apprehension of a criminal and agreed to testify against John- son in exchange for leniency. In June 1998, the trial court ac- cepted Rickey’s plea but sentenced him to serve five years in prison. On direct examination, the State questioned Rickey about the account he gave to investigators, his guilty plea, and his five- year sentence. On direct, Rickey admitted that he pleaded guilty to the crime of hindering the apprehension of a criminal. John- son’s trial counsel, Jack Boone, then cross-examined Rickey. Boone insinuated that Rickey played a significant role in Shields’s death, or even killed her himself, which Rickey denied. Boone also questioned Rickey’s motivations for talking to investigators, and Rickey claimed that he had no expectation of receiving a benefit from the State in return. Rickey testified that, in his opinion, he did not receive a “good deal” for his cooperation, that his five-year

with respect to the above matter. In exchange for the plea of guilty to the charge contained in the above referenced indict- ment, the State will recommend that [Rickey] be sentenced to probation. The State further agrees that he will not be prose- cuted for any other crimes in any way connected with the kid- napping and death of Irene Fluellen Shields. As a part of this plea agreement, [Rickey] will testify for the State during the trial of his brother Garry Johnson in Burke County in connec- tion with the aforementioned death and kidnapping, if called

upon to do so.

sentence was “too much” “[j]ust for picking somebody up and rid- ing them around,” and that he “didn’t commit no crime.”

Neither party introduced Rickey’s sentencing sheet at trial, but a copy was admitted at a motion for new trial hearing in May 2019. At another motion for new trial hearing in May 2021, John- son’s second-chair trial counsel, Luther McDaniel, testified that he believed Boone did, or at least attempted to, impeach Rickey at trial by introducing information about his plea deal. 10

(ii) “[D]ecisions about what questions to ask on cross-exam- ination are quintessential trial strategy and will rarely constitute ineffective assistance of counsel. In particular, whether to im- peach prosecution witnesses and how to do so are tactical deci- sions.” Edwards v. State, 299 Ga. 20, 24 (2016) (citation omitted).

Johnson has not shown that his trial counsel was deficient. Counsel cross-examined Rickey about the role he played in Shields’s death, why he cooperated with investigators, and whether he “got a good deal” for doing so. Counsel was not re- quired to elicit every detail of the plea, and a reasonable trial at- torney could have concluded that this colloquy sufficiently estab- lished Rickey’s motivation for testifying and provided the jury with evidence that Rickey was a potentially biased witness. See Monroe v. State, 315 Ga. 767, 784 (2023) (no deficiency concerning counsel’s impeachment of a witness where counsel “conducted lengthy and thorough cross-examinations of [the witness] regard- ing the plea deal he received in exchange for his testimony” and the defendant “provide[d] no argument as to how additional cross- examination of [the witness] would have benefitted the defense”); Edwards, 299 Ga. at 24–25 (where counsel “obtained testimony from [the witness] that he had substantial motivation to testify

10 Boone died in 2007, prior to the motion for new trial hearings.

against [the defendant],” it cannot be said that counsel’s “failure to ask about specific effects of the plea deal was patently unrea- sonable”).

Moreover, counsel’s decision not to introduce Rickey’s sen- tencing paperwork was not patently unreasonable because the jury already knew about the deal and Rickey’s potential motiva- tions. See Edwards, 299 Ga. at 25 (even if counsel does not obtain admission of documentary evidence of the witness’s guilty plea, such failure is not “patently unreasonable … when, as a result of [the witness’s] testimony, the jury was informed of the plea and provided with evidence that [the witness] was potentially biased and had motivation to testify against [the defendant]”).

(b) Johnson next contends that his counsel provided inef- fective assistance by failing to object to the State’s use of John- son’s request for counsel as evidence as guilt. Specifically, he con- tends that the District Attorney “used his cross-examination to comment on this request, as if it were an odd request that implied guilt.” (i) During Johnson’s direct examination, Boone asked, “Did you cooperate with [the investigator] … after he read you your rights?” Johnson responded that, as the investigator began to ask him questions about Shields, Johnson said, “Maybe I need to talk to a lawyer.”

On cross-examination, Johnson testified that, after the in- vestigator indicated that Shields had been murdered, he re- sponded, “Let me get in touch with an attorney or something, and then if you want to talk, or me take a polygraph test, or whatever you want to do, we can do that.” The prosecutor continued to cross-examine Johnson as follows:

Q: Okay. So when you got to Burke County, having been charged with a speeding ticket in Richmond County, and were told that your live-in girlfriend had died…

A: No, I wasn’t told she had died.

Q: … you said, “I want a lawyer?”

A: I wasn’t told she had died; I was told she was missing. And he asked me what did I do that prior day, and I told him.

Q: What else did he tell you?

A: He said, “What if I told you she was dead?” and I was like…

Q: That’s the same as having died, isn’t it?

A: It’s pretty much the same, but what I’m saying, when he said that, me and him had been talking like 15 or 20 minutes. Do you know what I mean? He was like, “Well, she’s missing,” and I was like, “No man, she ain’t missing,” you know.

Q: So you said, “I want a lawyer?”

A: When he said that, yes.

And Johnson reiterated that, after the investigator said, “what if I told you [Shields was dead],” he responded, “Well, if you told me that, I’d want to talk to a lawyer.”

(ii) The prosecutor did not improperly comment on John- son’s invocation of his right to counsel, and defense counsel’s fail- ure to object was not unreasonable. On direct examination, John- son was the one who brought up the fact that he asked for counsel when talking with investigators. He then injected this issue into his testimony during cross-examination before the prosecutor asked about it. The prosecutor’s only references to Johnson’s re- quest came after Johnson injected the issue and were limited to the following questions: “[Y]ou said, ‘I want a lawyer?’” and “So you said, ‘I want a lawyer?’” Because Johnson first raised the is- sue during his direct testimony and raised it again during cross- examination, the prosecutor’s questions were not objectionable. See Doyle v. State, 291 Ga. 729, 733 (2012) (“Ordinarily, it would be improper for the prosecution to comment upon a criminal de- fendant’s silence or failure to come forward even when he takes the witness stand,” but where “a defendant opens the door to this line of questioning during direct examination, the prosecution has every right to pursue a thorough and sifting examination and to comment upon it during closing argument.”). See also Cooper v. State, 287 Ga. App. 901, 905–06 (2007) (no error where defend- ant’s attorney introduced a line of questioning about defendant’s decision to retain an attorney before he approached police and the State then followed up on that line of questioning). And a review of the record reveals no further discussion of the subject. 11 Be- cause any objection to the prosecutor’s comments would have been meritless, Johnson has not established his trial counsel’s de- ficiency. 4. Johnson argues that his “due process rights” were vio- lated when the prosecution failed to correct Rickey’s testimony on

11 We note that the closing arguments were not transcribed, but John- son does not argue that the State commented on his request for counsel in clos- ing.

cross-examination that he “committed ‘no crime’ and had received no ‘good’ deal.” We are unpersuaded.

“[T]he State may not knowingly use a witness’s false testi- mony that [she] received no promise of consideration in exchange for [her] testimony, and the prosecutor’s failure to correct such testimony that he knows to be false denies the defendant his right to due process of law.” Strother v. State, 305 Ga. 838, 850 (2019). To prevail on his claim, Johnson must show that “(1) the prosecu- tor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material.” Harris v. State, 309 Ga. 599, 607 (2020) (citation omitted).

Johnson’s claim fails on the first prong because he has not shown that the State presented any perjured testimony. Rickey did not testify that he was offered no leniency from the State. In- stead, Rickey gave only his opinion that he did not receive a “good deal.” As for Rickey’s testimony that he “didn’t commit no crime,” the trial transcript shows that Rickey admitted that he had en- tered a guilty plea to the crime of hindering the apprehension of a criminal, and Rickey’s statement was made during cross-exam- ination when Johnson’s trial counsel insinuated that Rickey, not Johnson, had killed Shields. Thus, when viewed in context, this statement was simply Rickey’s denial of the suggestion that he was the one who murdered Shields. Because Rickey provided no false testimony, there was nothing for the prosecutor to correct. See Strother, 305 Ga. at 850–51 (where the record supported the trial court’s finding that the witness did not testify falsely at trial, appellant’s claim that prosecutor knowingly used false testimony failed). 5. Finally, Johnson argues that he was prejudiced by the significant delay in his post-trial proceedings and that he is enti- tled to a new trial. He contends that the delay “has made the ar- gument for ineffective assistance of counsel almost impossible to make,” particularly because Boone’s death renders his strategy “almost impossible to determine” and because McDaniel “did not remember much about the case or his strategy.” Moreover, he ar- gues that the delay “prevents appellate counsel from being appro- priately diligent” because she does not have access to a trial file and evidence from the trial has been destroyed. Finally, he as- serts that the delay “makes arguments about the court’s errors at trial difficult to prove,” especially given that the transcript is missing portions of the trial. While we strongly disapprove of the lengthy delay in resolving Johnson’s motion for new trial, John- son has failed to show that he has suffered actual prejudice from this delay. Accordingly, this claim fails.

(a) Johnson was represented at trial in November 2000 by Boone and McDaniel. On November 14, 2000, the day his trial ended, Johnson filed a pro se “Preliminary Motion to Vacate Judg- ment, and/or Motion for New Trial.” Johnson was then sentenced on November 17, 2000. The same day, Johnson filed a pro se mo- tion for judgment notwithstanding the verdict. Boone filed a mo- tion to withdraw from the case, and the trial court granted his motion on December 12, 2000. 12 It doe s not appear from the rec- ord that either attorney filed a timely motion for new trial or no- tice of appeal.

Johnson then filed a pro se “Extraordinary Motion for New Trial” on December 18, 2000. He attached a letter addressed to the clerk, asking for a copy of his trial transcript and of the filed motion. He noted: “I have no attorney and wish to proceed with

12 McDaniel did not file a motion to withdraw, but he was subsequently disbarred in 2003. See In re Luther McDaniel, 276 Ga. 226 (2003).

my appeal pro se.”

Johnson corresponded, via letter, with the clerk’s office many times between 2001 and 2017 regarding his appeal. In one of these letters, dated September 7, 2001, the clerk informed Johnson that he had a lawyer, Paul David. On September 17, 2001, Johnson replied: “The appointed attorney, Paul W. Davi[d], has not responded to any of my requests at all.” 13 In January and February 2002, Johnson wrote to the clerk twice asking about his motion for new trial. The clerk responded: “[W]e do not have a ruling on this motion at this time. You will need to contact the attorney representing you.” 14

On December 6, 2017, Johnson’s present appellate counsel filed an entry of appearance. After a hearing on May 21, 2018, the trial court appointed a Special Master to locate Johnson’s case file and any existing evidence in the case, but a file could not be lo- cated. On December 10, 2018, Johnson, through counsel, filed a motion to file an out-of-time motion for new trial. The motion was granted on December 17, 2018, and Johnson filed his motion for new trial that day. Johnson supplemented his motion for new trial three times between 2018 and 2021, and the trial court heard arguments related to each.

13 David, via affidavit, indicated that he had no recollection of being appointed to this case, and the record is devoid of any entry of appearance by him. In 2007, he was disbarred, in part because of abandonment of clients. In re David, 282 Ga. 517, 517–18 (2007).

14 Johnson’s case was put into “closed status” on July 30, 2003, after the District Attorney’s office indicated that “the appeal process in the case against … Johnson has been exhausted and no additional appeals are pend- ing.”

On January 28, 2022, the trial court issued an order deny- ing Johnson’s motion for new trial, as amended. Johnson filed a notice of appeal on February 21, 2022, and the case was docketed to this Court on April 27, 2022 (S22A0964). The Court ultimately remanded the case for the trial court “to dismiss Johnson’s motion for out-of-time motion for new trial and the motion seeking leave to file it” but directed the court “to exercise its discretion to deter- mine whether to recognize and rule on any of the pro se post-con- viction motions Johnson filed” in 2000. Johnson v. State, 315 Ga. 876, 892 (2023). 15

On April 10, 2025, the trial court dismissed Johnson’s mo- tions for judgment notwithstanding the verdict and for out-of- time motion for new trial. But the trial court recognized the two motions for new trial that Johnson filed in 2000, which he amended on April 14, 2025. On December 1, 2025, the trial court denied Johnson’s motions for new trial in two orders dividing the issues between the speedy appeal and the appeal on the merits.

In its order regarding Johnson’s speedy appeal, the trial court considered the four factors from Barker v. Wingo, 407 US 514, 530 (1972) – “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right [to a speedy appeal], and preju- dice to the defendant.” As for prejudice, the trial court first found that Johnson had not been prejudiced with respect to his ineffec- tive assistance claims because “all memories fade with time,” “trial counsel is presumed to have acted in a strategic manner

15 As the Court explained, the pro se motions for new trial that John- son filed in 2000 were a “legal nullity” at the time because they were “filed pro se at a time when Johnosn was presumed to be represented by counsel.” John- son, 315 Ga. at 879. In Johnson, however, the Court “overrule[d] our past de- cisions to the extent that they hold that pro se filings by counseled defendants are always legal nullities.” Id. at 889 (emphasis in original; footnote omitted).

when there is no evidence to the contrary,” and these claims could be “addressed based on the record.” The court also determined that the delay did not prevent Johnson’s appellate counsel from “pursuing his appeal or adequately arguing an enumeration of er- ror.” Finally, the court noted that Johnson had failed to show that he was “harmed or prejudiced in any way by the failure to tran- scribe” certain portions of the transcript. In conclusion, Johnson “failed to demonstrate prejudice in the delay,” which is “fatal to the [appellate delay] claim.”

Johnson filed his notice of appeal on December 19, 2025, naming the two orders denying the motions for new trial that he filed in 2000. The case was docketed in this Court on March 16, 2026. (b) “In evaluating a trial court’s decision to deny a speedy appeal claim, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ulti- mate conclusion of the trial court unless it amounts to an abuse of discretion.” Hyden v. State, 308 Ga. 218, 224 (2020) (cleaned up). As the trial court correctly articulated, when determining whether a particular defendant has been deprived of his right to a speedy trial, courts should analyze the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker, 407 US at 530. This Court adopted the four Barker factors and modified them for analyzing due process claims in the context of a post-conviction delay. See Chatman v. Mancill, 280 Ga. 253, 257 (2006) (“[T]he analytical framework created by the Barker factors provides a familiar, thor- ough and practical means of assessing the fairness and prejudice issues that arise in cases involving the delayed resolution of direct appeals from judgments entered on criminal convictions[.]”). At issue here is the fourth Barker factor – prejudice to the defendant – and, with respect to that factor, we have held that

the prejudice necessary to establish a due process vi- olation based on post-conviction direct appeal delay is prejudice to the ability of the defendant to assert his arguments on appeal and, should it be estab- lished that the appeal was prejudiced, whether the delay prejudiced the defendant’s defenses in the event of retrial or resentencing.

Chatman, 280 Ga. at 260. In other words, “appellate delay is prej- udicial when there is a reasonable probability that, but for the delay, the result of the appeal would have been different.” Id. at 260–61 (citation omitted). We have also explained that “[i]n the context of appellate delay, prejudice, unlike in the speedy trial context, is not presumed but must be shown.” Terrell v. State, 313 Ga. 120, 123 (2022) (cleaned up). And “in a speedy appeal claim … the failure to show actual prejudice from the delay is fatal to the claim[.]” Harper v. State, 318 Ga. 185, 188 (2024) (cleaned up).

To demonstrate actual prejudice, an appellant must offer “specific evidence” to prove that “the delay has prejudiced his ap- peal or that the result of the appeal would have been different but for the delay.” Loadholt v. State, 286 Ga. 402, 406 (2010). “[G]en- eralized speculation about the delay’s effect on witness memories and evidence is not the kind of ‘specific evidence’ required to show prejudice in the appellate-delay context.” Payne v. State, 289 Ga. 691, 695 (2011). See Veal v. State, 301 Ga. 161, 168–69 (2017) (though defendant’s trial counsel and several State witnesses had died since trial, defendant failed to show prejudice from the ap- pellate delay where he offered only “generalized speculation about the delay’s effect,” did not point to any instances where trial counsel was ineffective, or “explain on appeal or in his motion for new trial how the availability of those [State] witnesses would have been relevant to his motion for new trial or appeal”), disap- proved of on other grounds by Johnson, 315 Ga. at 889 n.11.

“As much as we disapprove of the long delay in this case, there is simply no evidence that the trial court abused its discre- tion by rejecting” Johnson’s “claim that his due process rights were violated by the appellate delay.” Kelly v. State, S26A0871, slip op. at 4 (Ga. Aug. 13, 2026) (2026 WL 2349284). Johnson “pro- vided no evidence in his motions for new trial or in the subsequent hearing[s] to suggest that the outcome of his motion would have been different but for the delay, and there is nothing in the record supporting any suggestion that the outcome of [his] appeal was actually prejudiced by the delay.” Id.

Even without access to a complete account of trial counsel’s strategy, the trial file, or the trial transcript, Johnson has offered no substantive argument to indicate how an earlier motion for new trial hearing or an earlier appeal would have led to a differ- ent result. He has not provided specific evidence regarding what trial counsel’s testimony – either before Boone’s death or prior to McDaniel’s memory loss – would have revealed, what additional information might have been in a purported trial file, or what ma- terial information is missing from the trial transcript. The record, therefore, supports the trial court’s findings and ultimate conclu- sion that Johnson has “failed to demonstrate prejudice in the de- lay.” See Lord v. State, 304 Ga. 532, 542 (2018) (concluding that appellant “wholly failed to make any showing that he was preju- diced by the delay” where he made “only a bare assertion that the delay resulted in loss of recollection, evidence, witnesses, testi- mony etc. and that the prejudicial effect is obvious” (cleaned up)); Hargrove v. State, 291 Ga. 879, 886–87 (2012) (deeming unper- suasive appellant’s argument that “his counsels’ limited recollec- tions as to why certain decisions were made at trial establishes prejudice” because “the transcript [wa]s not so inadequate or in- complete as to prevent a thorough judicial review of the proceed- ings on appeal”), disapproved of on other grounds by Willis v. State, 304 Ga. 686 (2018); Loadholt, 286 Ga. at 406 (where appel- lant’s “only claim of prejudice [wa]s the bare assertion that by the passage of time counsel and witnesses’ memories as to the events of the crimes are less clear,” he “failed to offer the specific evi- dence required to show that the delay has prejudiced his appeal or that the result of the appeal would have been different but for the delay” (cleaned up)).

Judgment affirmed. All the Justices concur.