Impeachment with Underlying First Offender Conduct under Rule 608(b):
A Commentary on Lewis v. State, Supreme Court of Georgia (Dec. 9, 2025)

I. Introduction

The Supreme Court of Georgia’s decision in Lewis v. State, S25A1255 (Dec. 9, 2025), is significant primarily for its clear holding that the State may impeach a criminal defendant with specific instances of prior dishonest conduct even when those acts were resolved through a discharged First Offender plea, so long as the impeachment complies with Georgia’s Rule 608(b)(1) and Rule 403.

Beyond this evidentiary point, the Court also:

reaffirmed the standard for assessing sufficiency of the evidence under Jackson v. Virginia in the context of conflicting eyewitness testimony;
clarified the application of Georgia’s aggravated stalking statute when a protective order is in place but “consent” is claimed; and
applied established ineffective-assistance doctrine to alleged deficiencies at a Jackson–Denno hearing concerning the voluntariness of a defendant’s statements while recovering from medical sedation.

This commentary focuses on the case’s three core issues:

Whether the evidence was constitutionally sufficient to support convictions for malice murder, possession of a firearm during the commission of a felony, and aggravated stalking;
Whether the trial court erred in permitting impeachment cross-examination about the conduct underlying a discharged First Offender plea to unemployment insurance fraud; and
Whether trial counsel rendered ineffective assistance at the Jackson–Denno hearing by mishandling medical records and not presenting additional expert or legal support.

II. Factual and Procedural Background

A. Relationship and Prior Domestic Violence Proceedings

George Michael Lewis and the victim, Kendra Weathers, were in a romantic relationship and lived together with Weathers’s children. They relocated to Georgia around February 2015. In April 2015:

Lewis was charged with battery, family violence, against Weathers;
as a condition of pretrial release, he was ordered to have no contact with her (a “no-contact” or protective condition); and
shortly thereafter, a friend of Weathers, Shenique Griffith, and her children began living in the apartment with Weathers and the children.

B. The Shooting on May 5, 2015

On May 5, 2015, despite the no-contact condition, Lewis was at the shared apartment. In the early morning hours:

an argument between Lewis and Weathers erupted inside the apartment;
Griffith was present and secretly audio-recorded the incident on her phone;
Weathers told Lewis to leave and threatened to call the police if he did not;
Lewis drew a gun; Weathers screamed and ran from the apartment; and
Lewis followed and shot her twice outside.

Griffith testified that:

Lewis shot Weathers in the back as she fled;
after the first shot she ran to protect the children and did not see the second shot.

Neighbors saw Lewis running from the scene, entering his car with a gun, and driving away quickly. Weathers died from the two gunshot wounds.

C. Flight and Subsequent Arrest

After leaving the scene, Lewis drove toward southeast Georgia. Around 8 a.m., a Bulloch County deputy attempted a traffic stop near Statesboro:

Lewis fled, prompting a high-speed chase of approximately 50 miles;
a Georgia State Patrol officer ended the chase with a PIT maneuver, causing Lewis’s car to crash;
Lewis believed his leg was broken, was handcuffed, lost consciousness, and was taken to a hospital;
he was intubated and placed in a medically induced coma to keep him still for a CT scan; and
once medically cleared, he was transported back to Cobb County by law enforcement.

During the transport, officers:

asked only routine questions about Lewis’s comfort (e.g., restroom, how he felt);
did not question him about the crimes; yet
Lewis spontaneously and repeatedly talked about Weathers and Griffith trying to “kick [him] out of [his] apartment.”

He also engaged in self-harming behavior (repeatedly hitting his head), which officers tried unsuccessfully to stop.

D. Lewis’s Trial Testimony

At trial, Lewis advanced a very different account:

He claimed that during the argument, Weathers produced the gun.
He said the gun went off accidentally as he tried to wrest it from her.
He asserted he did not know Weathers had been shot.
He said he fled the apartment because he was scared.

E. Charges, Verdict, and Sentencing

A Cobb County grand jury indicted Lewis for:

Malice murder (Count 1);
Two counts of felony murder (Counts 2 and 4);
Two counts of aggravated assault, family violence (Counts 3 and 5);
Possession of a firearm during the commission of a felony (Count 6);
Aggravated stalking (Count 7);
Battery, family violence (Count 8 – April 14 incident);
Violating a family violence order (Count 9 – April 26); and
Contributing to the deprivation of a minor (Count 10).

In October 2016:

Lewis was convicted on all counts except Count 8 (battery, family violence).
He was sentenced to:
- life without parole on malice murder (Count 1);
- five consecutive years on the firearm offense (Count 6);
- ten concurrent years on aggravated stalking (Count 7); and
- twelve months each on violating the family violence order (Count 9) and contributing to deprivation of a minor (Count 10).
The remaining counts (felony murder and aggravated assaults) were vacated or merged by operation of law.

Lewis moved for a new trial; the motion was amended through new counsel and ultimately denied on August 12, 2024. He then appealed.

III. Issues Before the Supreme Court of Georgia

The Court addressed three principal issues:

Sufficiency of the Evidence. Whether the evidence was constitutionally sufficient under Jackson v. Virginia to support the convictions on Counts 1 (malice murder), 6 (possession of a firearm during the commission of a felony), and 7 (aggravated stalking).
Impeachment with First Offender Conduct. Whether the trial court erred by allowing the State, under OCGA § 24‑6‑608(b)(1), to cross-examine Lewis about the conduct underlying a discharged First Offender plea to unemployment insurance fraud, despite statutory language that a discharged First Offender is “completely exonerated.”
Ineffective Assistance at Jackson–Denno Hearing. Whether trial counsel rendered ineffective assistance regarding the voluntariness of Lewis’s transport statements by:
- failing to have medical records certified or introduced through a witness at the Jackson–Denno hearing;
- failing to retain an expert to explain the effects of narcotics on Lewis’s mental state; and
- failing to submit a post-hearing letter-brief with additional authority when invited to do so by the court.

IV. Summary of the Opinion

On sufficiency: The Court held that the evidence, viewed in the light most favorable to the verdict, easily satisfied constitutional sufficiency under Jackson v. Virginia for the malice murder, firearm, and aggravated stalking convictions. Any argument regarding merged or vacated counts (aggravated assault and felony murder) was deemed moot.
On First Offender impeachment: The Court held that:
- OCGA § 24‑6‑608(b)(1) (“Rule 608(b)(1)”) permits cross-examination about specific instances of conduct that are probative of a witness’s character for truthfulness;
- this permissive impeachment applies even when that conduct resulted in a First Offender plea later discharged; and
- the “exoneration” language in former OCGA § 42‑8‑62(a), now codified in OCGA § 42‑8‑60(i), does not bar the use of the underlying conduct for impeachment purposes under Rule 608(b)(1).
The trial court did not abuse its discretion under Rule 403 in allowing limited questioning about Lewis’s prior fraudulent conduct.
On ineffective assistance: The Court held that Lewis failed to show either prejudice or deficiency under Strickland v. Washington. The trial court ultimately reviewed certified medical records before ruling, counsel reasonably chose not to call an expert after investigation, and the decision not to file a post-hearing letter-brief was a reasonable strategic choice given the absence of supporting authority.

The Court therefore affirmed Lewis’s convictions and the denial of his motion for a new trial.

V. Detailed Analysis

A. Sufficiency of the Evidence

1. Governing standard: Jackson v. Virginia

The Court framed its sufficiency review under the familiar constitutional standard:

When reviewing the sufficiency of the evidence as a matter of constitutional due process, we view the evidence presented in the light most favorable to the verdict and ask whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Key points emphasized:

The appellate court does not reweigh evidence or reassess credibility.
Conflicts in the evidence and credibility determinations are for the jury. See Anderson v. State, 319 Ga. 56, 59 (2024).
The evidence is reviewed in the light most favorable to the verdict, not in a balanced or defense-favorable light.

2. Limitation of sufficiency review due to merger and vacatur

Lewis challenged the sufficiency of evidence on Counts 1–7, but the Court immediately narrowed the inquiry:

Counts 2 and 4 (felony murder) and Counts 3 and 5 (aggravated assault) were merged or vacated by operation of law after the malice murder conviction.
Under Eggleston v. State, 309 Ga. 888, 890–91 (2020), sufficiency challenges to such merged or vacated counts are moot.

Accordingly, the sufficiency analysis addressed only:

Count 1 – Malice murder (OCGA § 16‑5‑1(a));
Count 6 – Possession of a firearm during the commission of a felony (OCGA § 16‑11‑106(b)(1));
Count 7 – Aggravated stalking (OCGA § 16‑5‑91(a)).

3. Malice murder and firearm possession (Counts 1 and 6)

The Court found “very strong” evidence of Lewis’s guilt:

He was subject to a no-contact condition arising from prior domestic violence.
He was present at Weathers’s apartment in defiance of that order.
Griffith recorded the argument, including Weathers’s command that he leave and her threat to call the police.
Upon that threat, Lewis drew a firearm; Weathers screamed and fled.
Griffith testified that Lewis shot Weathers in the back as she ran away.
Neighbors saw him flee the scene with the gun and speed away.
He immediately embarked on a lengthy, dangerous high-speed flight from law enforcement, terminating only after a PIT maneuver and crash.

Lewis’s contrary narrative—that Weathers produced the gun and it discharged accidentally during a struggle—directly conflicted with Griffith’s testimony and with the circumstantial evidence of malice (flight, chase, and disregard of the protective order). The Court characterized Lewis’s sufficiency argument as nothing more than “disagreement with the jury’s resolution of any conflicts in the evidence.”

Given the testimony and circumstances, a rational juror could:

Find that Lewis intentionally shot a fleeing victim, satisfying malice murder’s requirement that he “unlawfully and with malice aforethought, either express or implied, cause[d] the death of another human being.” OCGA § 16‑5‑1(a); and
Conclude that he possessed and used a firearm during the commission of that felony, satisfying OCGA § 16‑11‑106(b)(1).

4. Aggravated stalking (Count 7): consent, protective orders, and harassment

Aggravated stalking under OCGA § 16‑5‑91(a) requires:

Violation of a qualifying order or condition (e.g., bond condition, restraining order, protective order, condition of probation or parole);
“Follow[ing], plac[ing] under surveillance, or contact[ing]” another person “at or about a place or places without the consent of the other person”;
And doing so “for the purpose of harassing and intimidating the other person.”

Lewis argued his presence was consensual because Weathers allegedly invited him to the apartment. The Court, however, emphasized:

The jury was “authorized not to believe” his claim of initial consent.
Even assuming initial consent, Griffith’s testimony established that during the argument, Weathers told Lewis to leave, “thereby revoking any consent for Lewis to be at the apartment.”

The Court cited State v. Burke, 287 Ga. 377, 379 (2010), for the proposition that:

[U]nder OCGA § 16‑5‑91(a) “[t]he contact with the victim in violation of the protective order must also be ‘without the consent of the other person for the purpose of harassing and intimidating’ him or her.”

Thus:

Lewis’s contact with Weathers violated the no-contact condition of his pretrial release;
whatever prior consent existed was expressly revoked when she ordered him to leave;
his refusal to leave, escalation to brandishing a firearm, and subsequent killing provided powerful evidence of harassment and intimidation.

Given the audio recording, testimony, and context, the Court concluded the evidence was more than sufficient to support the aggravated stalking conviction.

5. Key takeaway on sufficiency

The Court’s treatment of sufficiency is doctrinally orthodox but practically important:

Conflicting eyewitness testimony will rarely undermine a conviction at the appellate level if a rational juror could believe the State’s witness rather than the defendant.
Protective orders and conditions of pretrial release are not nullified by purported private invitations; when consent is revoked or used as a pretext for harassment, aggravated stalking may be established.
Flight from the scene and from law enforcement remains classic circumstantial evidence supporting malice and consciousness of guilt.

B. Impeachment with Underlying First Offender Conduct

1. Factual posture of the impeachment issue

Prior to Lewis’s testimony, the State notified the court that it intended to cross-examine him under Rule 608(b)(1) about prior dishonest conduct:

In 2004, Lewis had received unemployment insurance benefits in excess of what he was entitled to by making false representations to the Department of Labor.
He had resolved that incident via a First Offender plea and sentence, which had since been discharged.

The State:

agreed not to introduce the First Offender plea or sentencing documents themselves; and
sought only to question Lewis about the underlying conduct, using the prior paperwork merely to refresh his recollection if he denied the conduct.

The trial court ruled that this line of cross-examination was permissible under Rule 608(b) as bearing on Lewis’s character for truthfulness.

On cross, the prosecutor briefly asked whether:

Lewis had received unemployment insurance money in 2004;
he had received “more money than [he was] entitled to;” and
this was because he made false representations to the Department of Labor.

Lewis answered “yes” to this line of questioning. No additional questions on this topic were asked, and no First Offender documents were shown to the jury.

2. Legal framework: Rule 608(b)(1) and First Offender “exoneration”

OCGA § 24‑6‑608(b)(1) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness ... may not be proved by extrinsic evidence. Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) Concerning the witness's character for truthfulness or untruthfulness.

Former OCGA § 42‑8‑62(a) (applicable at the time of Lewis’s First Offender discharge) provided that completion of First Offender probation:

“completely exonerates the defendant of any criminal purpose;”
“shall not affect any of his civil rights or liberties;” and
the defendant “shall not be considered to have a criminal conviction.”

That language was later moved (effective July 1, 2016) into OCGA § 42‑8‑60(i). The Court assumed for purposes of analysis that the former version applied, but expressly held that Lewis’s argument failed under either version.

Lewis’s position was that once a First Offender plea is discharged, neither the plea nor its underlying conduct should be admissible “for any purpose” in a later criminal trial.

3. The Court’s reasoning: conduct vs. conviction

The Court drew a sharp and legally significant distinction between:

the status of having (or not having) a criminal “conviction;” and
the historical fact of having engaged in particular conduct in the past.

Key steps in its reasoning:

Rule 608(b)(1) is about conduct, not convictions. The rule regulates impeachment through “specific instances of conduct” probative of truthfulness and explicitly forbids proving those by extrinsic evidence, but allows inquiry on cross-examination.
Fraud is paradigmatically probative of untruthfulness. The Court, relying on federal authority, emphasized that fraud-type offenses are classic examples of acts showing untruthfulness:
Acts probative of untruthfulness under Rule 608(b) include such acts as forgery, perjury, and fraud.
(quoting Ad‑Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1464 (11th Cir. 1994)).
The First Offender statute speaks to “conviction,” not to underlying conduct. The exoneration provision ensures the defendant is not treated as having a “conviction” and that certain civil rights and disabilities are restored or avoided. Importantly, the Court held:
- Former OCGA § 42‑8‑62(a) (now § 42‑8‑60(i)) does not address whether the conduct can be referenced as a historical fact; and
- there is no textual basis to infer a blanket evidentiary shield for the underlying behavior.
Rule 608(b) contains no carve-out for First Offender conduct. The Court noted that Rule 608(b) “does not include any sort of carve-out for when that conduct happens to have resulted in a first-offender conviction.”
No extrinsic evidence of the First Offender plea or sentencing was presented. The State complied with Rule 608(b)’s prohibition on extrinsic evidence:
- It did not introduce the First Offender plea or disposition into evidence;
- It merely asked Lewis about the underlying conduct; and
- Its questions were limited and directly related to his past fraudulent representations to a government agency.

Accordingly, the Court held:

Even though Lewis entered a First Offender plea to employment insurance fraud, which was not admitted into evidence, the specific facts of Lewis's conduct were a proper subject of inquiry on cross-examination under Rule 608(b)(1).

4. Rule 403 analysis: probative value vs. unfair prejudice

Lewis also argued that even if technically admissible, the impeachment should have been excluded under OCGA § 24‑4‑403 (“Rule 403”). The Court responded by reiterating established principles:

Exclusion under Rule 403 is an “extraordinary remedy” to be used “only sparingly.” See Jones v. State, 311 Ga. 455, 464 (2021).
“Probative value” is a function of both the logical force of the evidence to prove a point and the need for that evidence on the point. See Harris v. State, 314 Ga. 238, 263 (2022).

Applying these principles, the Court held there was no abuse of discretion:

High probative value: Lewis’s credibility was central. The case turned significantly on whether the jury believed:
- his account (accidental discharge during a struggle) or
- Griffith’s account (deliberate shooting of a fleeing victim).
Evidence of prior fraudulent conduct directly bore on his character for truthfulness.
Low risk of unfair prejudice:
- The misconduct (employment insurance fraud) was dissimilar to the charged violent offenses and not particularly inflammatory.
- The questioning was brief and restricted.
- No extrinsic documents or details about criminal justice consequences were introduced.

Given this balance, the Court concluded:

[T]here was little, if any, danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time.

5. Doctrinal significance: the new evidentiary rule

The decision establishes and clarifies a key principle in Georgia evidence law:

In Georgia, the conduct underlying a discharged First Offender plea may be used to impeach a witness (including a criminal defendant) under OCGA § 24‑6‑608(b)(1), as a specific instance of conduct probative of truthfulness, so long as:

the impeachment is limited to cross-examination about the conduct itself;
no extrinsic evidence of the First Offender disposition is introduced; and
the evidence survives Rule 403 balancing.

Importantly, the Court did not decide whether a First Offender disposition is a “conviction” for purposes of OCGA § 24‑6‑609 (impeachment by prior convictions). The holding is expressly limited to:

Rule 608(b)(1); and
cross-examination on specific instances of conduct showing untruthfulness.

C. Ineffective Assistance at the Jackson–Denno Hearing

1. The Jackson–Denno issue and trial-level proceedings

Before trial, a Jackson–Denno hearing was held to determine whether Lewis’s statements during the post-hospital transport were voluntary and admissible. Lewis argued that:

he was under the influence of narcotics administered at the hospital; and
his statements were therefore involuntary and should be excluded.

Trial counsel possessed medical records to support the intoxication claim but:

did not have certified copies at the hearing; and
did not call a witness to lay the foundation for admission of the records.

The trial court:

indicated it was inclined to find the statements voluntary;
reserved ruling, however, pending review of properly certified medical records; and
later received and reviewed those certified records before trial.

On the morning of trial, the court announced orally (and much later in writing) that Lewis’s statements were voluntary and admissible.

2. Alleged deficiencies and the Strickland framework

On appeal, Lewis claimed that trial counsel rendered ineffective assistance by:

Failing to subpoena an expert witness to interpret the medical records and testify about the effects of narcotics on his mental state at the time of the statements;
Failing to have the medical records certified and admissible at the time of the Jackson–Denno hearing; and
Failing to submit a post-hearing letter-brief with additional legal authority, despite the trial court’s invitation.

To prevail on an ineffective-assistance claim under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must show both:

Deficient performance — that counsel’s performance was objectively unreasonable under prevailing professional norms; and
Prejudice — a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

Georgia cases reiterating these principles include:

Payne v. State, 314 Ga. 322, 328–29 (2022);
Blocker v. State, 316 Ga. 568, 578 (2023);
Zayas v. State, 319 Ga. 402, 409 (2024).

The Court emphasized again the “strong presumption” that counsel performed reasonably and the high burden on the defendant to overcome that presumption.

3. Failure to have certified medical records or a foundation witness

Regarding the lack of certified records and a witness at the Jackson–Denno hearing, the Court disposes of the claim on the prejudice prong:

Even assuming deficiency, the trial court ultimately reviewed certified medical records before ruling.
After reviewing those records, the court concluded that Lewis’s statements were voluntary and admissible.
Thus, whatever defect existed at the initial hearing was “mooted” by the court’s later consideration of the proper documentation.

Because the trial court did consider the medical evidence Lewis claims should have been presented, and nonetheless ruled against him, there is no “reasonable probability” that better procedural handling of those records would have changed the outcome.

4. Failure to retain or call an expert on the effects of narcotics

On this point, the Court focused on the performance prong and trial strategy:

Trial counsel testified that he investigated the issue and consulted with an emergency room nurse about the medications administered to Lewis.
He learned that the drugs were short-acting and would not still have been effective by the time of the transport.
Based on that information, he made a strategic choice not to retain or call an expert.

The Court cited Guzman‑Perez v. State, 310 Ga. 573, 577 (2020), for the principle that:

Typically, the decision whether to present an expert witness is a matter of trial strategy that, if reasonable, will not sustain a claim of ineffective assistance.

Where counsel:

investigates the factual issue;
consults a qualified professional; and
decides, in light of that consultation, that an expert would not advance the defense,

the decision is well within the bounds of reasonable professional judgment. The Court accordingly held that Lewis had not shown deficient performance on this ground.

5. Failure to submit a post-hearing letter-brief

Finally, regarding counsel’s decision not to file a supplemental letter-brief:

The trial court found that counsel had already presented, at the hearing, the core arguments that appellate counsel said should have been included in the letter-brief.
Counsel testified that:
- he further investigated the pharmacological effects and concluded the narcotics had worn off by the time of the transport; and
- he conducted legal research and found no authority supporting suppression of statements under similar circumstances.
In light of this, counsel made a strategic choice not to file a letter-brief repeating arguments and without supportive precedent.

The Court reiterated that “an attorney’s decision about which defense to present is a question of trial strategy” (Anthony v. State, 311 Ga. 293, 298 (2021); Rosenbaum v. State, 320 Ga. 5, 11–12 (2024)) and will not be second-guessed unless “objectively unreasonable, such that no competent trial counsel would have pursued such a course.”

Finding counsel’s choice reasonable, the Court held there was no deficiency.

6. Practical takeaway on ineffective assistance

The Court’s application of Strickland reaffirms several themes:

Appellate courts will not deem counsel ineffective for strategic decisions grounded in investigation and consultation, even if those choices ultimately prove unsuccessful.
To show prejudice, a defendant must do more than speculate that additional evidence or briefing might have helped; he must demonstrate a realistic probability of a different outcome.
When a trial court later considers (and rejects) the very evidence a defendant says should have been presented earlier, it becomes exceedingly difficult to show prejudice from the timing or form of presentation.

VI. Precedents and Authorities Cited

The Court’s opinion draws on a mix of constitutional, statutory, and evidentiary authorities. Some of the most significant include:

Jackson v. Virginia, 443 U.S. 307 (1979) Established the constitutional standard for sufficiency of the evidence: whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find guilt beyond a reasonable doubt.
Anderson v. State, 319 Ga. 56 (2024) Cited for the principle that weight, credibility, and resolution of evidentiary conflicts are for the jury, not the appellate court.
Eggleston v. State, 309 Ga. 888 (2020) Used to explain that sufficiency challenges to counts that are merged or vacated by operation of law are moot.
State v. Burke, 287 Ga. 377 (2010) Clarified that under OCGA § 16‑5‑91(a) (aggravated stalking), the contact in violation of a protective order must also be “without the consent” of the person and “for the purpose of harassing and intimidating” them.
OCGA § 24‑6‑608(b)(1) and Federal Rule 608(b) Georgia’s Rule 608 is materially similar to the federal rule, so federal case law is persuasive. See State v. Almanza, 304 Ga. 553, 556 (2018).
Ad‑Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460 (11th Cir. 1994) Cited to show that acts such as forgery, perjury, and fraud are classic examples of conduct probative of untruthfulness for Rule 608(b) purposes.
OCGA § 24‑4‑403 The Georgia counterpart to Federal Rule of Evidence 403, governing exclusion of relevant evidence when probative value is substantially outweighed by unfair prejudice or similar concerns.
Jones v. State, 311 Ga. 455 (2021) Reinforces that exclusion under Rule 403 is an “extraordinary remedy” used sparingly.
Harris v. State, 314 Ga. 238 (2022) Explains that the “probative value” of evidence combines its logical force and the demonstrated need for that evidence at trial.
Strickland v. Washington, 466 U.S. 668 (1984) The foundational ineffective-assistance case, requiring a showing of deficient performance and prejudice.
Payne v. State, 314 Ga. 322 (2022); Blocker v. State, 316 Ga. 568 (2023); Zayas v. State, 319 Ga. 402 (2024) Georgia cases applying Strickland, emphasizing the presumption of reasonableness and the defendant’s burden to show no reasonable lawyer would have acted similarly.
Guzman‑Perez v. State, 310 Ga. 573 (2020) Affirms that whether to present expert testimony is typically a matter of strategy not giving rise to ineffective assistance if reasonably made.
Anthony v. State, 311 Ga. 293 (2021); Rosenbaum v. State, 320 Ga. 5 (2024) Reinforce deference to strategic choices among possible defenses or tactics unless no competent lawyer would have chosen that path.

VII. Complex Concepts Simplified

1. First Offender “exoneration” vs. admissibility of conduct

Georgia’s First Offender Act allows a defendant, under certain conditions, to avoid a formal “conviction” if he successfully completes probation or a sentence. Upon discharge:

he is legally “exonerated” of criminal purpose for that offense; and
for many purposes, he is treated as if he was not “convicted.”

However, this does not erase the underlying facts. Lewis confirms:

The law protects the person from being treated as “convicted,” but it does not create a blanket privilege preventing any mention of what he actually did.
Where the defendant testifies, and past conduct is directly relevant to whether he is truthful, the State may ask about that conduct under Rule 608(b)(1), even if it resulted in a discharged First Offender case.

2. Impeachment by specific instances of conduct (Rule 608(b)(1))

Impeachment is a way to attack a witness’s credibility.
Under Rule 608(b)(1), a lawyer may cross-examine a witness about specific instances of dishonesty (e.g., lying on applications, fraud, perjury) that bear on truthfulness.
But the lawyer cannot prove those acts with documents or other “extrinsic evidence” if the witness denies them—the rule is limited to questioning, not proving.
The trial judge must find:
- the act is relevant to whether the witness is generally truthful; and
- the probative value is not substantially outweighed by unfair prejudice under Rule 403.

3. Rule 403 balancing

Rule 403 allows relevant evidence to be excluded only when:

its probative value (how much it helps prove something that matters) is substantially outweighed by dangers such as:
- unfair prejudice (the jury might decide based on improper emotion or bias);
- confusing or misleading the jury; or
- undue delay or needless presentation of cumulative evidence.

The standard is intentionally high: exclusion is “extraordinary” and to be used sparingly.

4. Jackson–Denno hearings

A Jackson–Denno hearing is a pretrial hearing to decide whether a defendant’s statements to law enforcement were made voluntarily. Key points:

The trial judge must ensure statements are not coerced by threats, promises, or circumstances like extreme intoxication or impairment.
If statements are voluntary, they may be presented to the jury; if not, they must be excluded.

In Lewis, the voluntary nature of his spontaneous transport statements (made after sedation had ended and without interrogation) was upheld. The dispute was not over Miranda warnings or overt coercion, but over his alleged narcotics-induced impairment—a claim the trial court rejected after reviewing medical records.

5. Ineffective assistance of counsel (Strickland)

To prove ineffective assistance, a defendant must show:

Deficient performance — that counsel’s actions were objectively unreasonable, not just unsuccessful or debatable.
Prejudice — a reasonable probability that, if counsel had acted differently, the outcome would have been different.

Tactical choices (e.g., whether to call certain witnesses, whether to brief an issue further) are strongly protected if based on reasonable investigation. Courts are reluctant to second-guess such decisions with hindsight.

VIII. Impact and Implications

1. Evidentiary practice: First Offender and cross-examination strategy

The most immediate practical impact of Lewis is on evidentiary strategy in criminal trials where:

the defendant (or a key witness) has a prior discharged First Offender case involving dishonest conduct; and
that person chooses to testify.

After Lewis:

Prosecutors may:
- use the underlying conduct as a basis for impeachment questions under Rule 608(b)(1);
- argue that First Offender discharge does not immunize the underlying behavior from scrutiny; but
- must avoid introducing the First Offender plea or sentence as “extrinsic evidence” to prove the conduct.
Defense counsel must:
- advise clients with First Offender histories that, if they testify, underlying dishonest acts can be used against them on cross-examination;
- consider pretrial motions in limine focusing on Rule 403, particularly where the prior act is marginally probative or substantially prejudicial;
- prepare clients for targeted questioning on such acts, including whether to admit or deny the conduct.

This decision also closes the door on arguments that First Offender “exoneration” alone makes such conduct inadmissible in all contexts. Any future legislative change to that effect would have to be explicit.

2. Domestic violence and aggravated stalking prosecutions

Lewis reinforces important points about protective orders and aggravated stalking:

A defendant cannot rely on a history of “invitation” to undercut a stalking charge when:
- a protective order or bond condition bars contact; and
- consent is expressly revoked during the encounter.
Statements like “leave or I will call the police,” followed by refusal to leave and escalation, can strongly support findings of harassment and intimidation.
Domestic violence dynamics—where a victim may sometimes let the abuser return—do not negate the legal force of protective orders or remove the “without consent” element once consent is withdrawn.

3. Ineffective assistance claims and Jackson–Denno practice

For defense practitioners, Lewis underscores:

The importance of obtaining and submitting certified medical records and any relevant evidence of impairment when challenging voluntariness.
The heavy burden to show that different handling of such records would have changed the outcome, particularly when the trial court later reviews those records independently.
The need for a cost-benefit analysis before retaining experts: if investigation suggests an expert would undermine, rather than support, the defense theory, declining to retain one is a reasonable strategic judgment.

For trial courts, the case demonstrates a practical approach:

Reserving rulings on voluntariness to allow counsel to marshal and submit complete documentation;
Ensuring that final rulings rest on a full evidentiary record, reducing the chance of reversible error or successful ineffective-assistance claims.

IX. Conclusion

Lewis v. State affirms Lewis’s convictions for malice murder, aggravated stalking, and related offenses, but its enduring significance lies in three doctrinal clarifications:

First Offender and Impeachment: The Court makes clear that Georgia’s First Offender statute does not insulate the underlying conduct from impeachment under Rule 608(b)(1). Fraud-type behavior resolved through a discharged First Offender plea may still be used on cross-examination as a specific instance of untruthfulness, so long as extrinsic evidence of the plea is not introduced and Rule 403 balancing is satisfied.
Aggravated Stalking and Protective Orders: The decision reinforces that contact in violation of a protective condition must be without consent and for harassment or intimidation—but that “consent” is revocable, and its revocation, especially in a volatile domestic situation, can immediately transform contact into aggravated stalking.
Ineffective Assistance and Jackson–Denno: The Court underscores that ineffective-assistance claims require concrete proof of both deficient performance and prejudice. Strategic decisions about experts and briefing, when based on investigation and lack of supporting authority, will not be second-guessed. When a trial court later reviews the very evidence the defendant claims was mishandled, it will be difficult to show that any earlier misstep likely changed the result.

Together, these holdings refine Georgia’s evidentiary and criminal procedure jurisprudence. Practitioners must now assume that First Offender conduct remains fair game for truthfulness impeachment and structure their advice to clients—and trial strategy—accordingly, while remaining vigilant about preserving and presenting full records at Jackson–Denno hearings and other critical pretrial proceedings.

Impeachment with Underlying First Offender Conduct under Rule 608(b): A Commentary on Lewis v. State, Supreme Court of Georgia (Dec. 9, 2025)