Strategic Non-Objections and Prison Gang Expertise: Georgia Supreme Court Clarifies Ineffective Assistance and Relevance Standards in Momon v. State

Introduction

In Momon v. State, the Supreme Court of Georgia affirmed the conviction of Tarell Momon for the malice murder of Michael Riley. The appeal turned not on the sufficiency of the evidence—which the Court characterized as strong—but on whether Momon’s trial counsel was constitutionally ineffective for failing to make a series of evidentiary objections. The opinion addresses four clusters of alleged deficiencies: (a) failures to object to a prison security-threat investigator’s “gang expert” testimony (including hearsay embedded in gang affiliation forms), (b) the scope of that expert’s testimony about inmate movement records and prison misconduct, (c) hearsay linking phone numbers to co-indictees via identification records, and (d) the failure to persist with Rule 401/403 objections to gang-affiliation and prison-misconduct evidence after an earlier pretrial challenge.

The Court’s decision clarifies several recurring trial and post-conviction issues: the deference afforded to counsel’s strategic choice to cross-examine rather than object, the wide berth formerly afforded to expert testimony in criminal cases under OCGA § 24-7-707, the importance of preserving issues both at trial and at the motion-for-new-trial stage, and the high threshold for demonstrating prejudice under Strickland where the State’s case is robust. The Court also reiterates that when assessing counsel performance in ineffective assistance claims, the governing law is the law in effect at the time of trial.

Summary of the Opinion

The Supreme Court of Georgia affirmed Momon’s conviction. It held:

Counsel was not deficient for declining to object to portions of the State’s gang expert testimony that summarized information from prison gang-affiliation forms. Opting to undermine the testimony through cross-examination rather than object was a reasonable strategy, particularly given other admissible evidence of Momon’s gang affiliation.
Counsel was not deficient for failing to object that the gang expert exceeded his expertise by discussing inmate movement records and misconduct. Under the law applicable at the 2014 trial—former OCGA § 24-7-707—such testimony fell within the expert’s experience as a prison security-threat investigator and would likely have been admitted.
Counsel was not deficient for failing to object to hearsay regarding phone number attributions for Momon and co-defendant Griswould because the challenged testimony was cumulative of other admissible evidence. As to the number attributed to co-indictee Berrian, the Court assumed deficiency but found no Strickland prejudice in light of the strength of the State’s case that Momon orchestrated the killing regardless of which associate pulled the trigger.
Even assuming counsel waived prior Rule 401/403 objections by saying “no objection” at trial, the underlying evidence (gang affiliation and prison misconduct) was relevant and not unfairly prejudicial under Rule 403’s demanding standard, especially in light of a limiting instruction and other cumulative proof. Thus, reasserting the objections would likely have failed, defeating the deficiency prong.
The cumulative prejudice claim failed because the Court identified, at most, a single assumed deficiency; without multiple errors, there is nothing to aggregate.

The Court also held that a separate claim—that the gang expert improperly commented on Momon’s exercise of his Fifth Amendment rights—was forfeited because it was not raised and ruled upon in the motion-for-new-trial proceedings. Questioning trial counsel about the issue during the hearing was insufficient to amend the motion absent argument and a ruling.

Analysis

Precedents Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984), and Georgia’s articulation in Smith v. State, 315 Ga. 357 (2022), and Williams v. State, 316 Ga. 304 (2023): The Court applied the two-part test—deficiency and prejudice—emphasizing that performance is judged by objective reasonableness considering prevailing professional norms. The Court reiterated that the bar for proving ineffective assistance is high (Mohamed v. State, 307 Ga. 89 (2019)).
State v. Tedder, 305 Ga. 577 (2019), and Lane v. State, 312 Ga. 619 (2021): The Court underscored that counsel’s subjective reasons (or lack of recollection) do not control the objective reasonableness analysis. If a reasonable lawyer might have pursued the same course, performance is not deficient.
State v. Spratlin, 305 Ga. 585 (2019), Young v. State, 305 Ga. 92 (2019), Davis v. State, 306 Ga. 140 (2019), and Koonce v. State, 305 Ga. 671 (2019): These cases frame objections as strategic choices; counsel is not deficient for eschewing objections in favor of cross-examination unless that choice is “patently unreasonable.” Counsel also is not deficient for failing to make objections that would have been overruled or for not objecting to evidence that is cumulative of admissible proof.
Patterson v. State, 314 Ga. 167 (2022): Reinforced that ineffectiveness claims must be raised and pursued at the earliest practicable moment (motion for new trial when represented by new counsel). Mere questioning at the hearing does not amend a motion; the court must be asked to rule.
Former OCGA § 24-7-707 and Davis v. State, 301 Ga. 397 (2015): At the time of trial, criminal expert testimony was broadly admissible. The Court used this standard (rather than today’s § 24-7-702 gatekeeping) because deficiency is judged under the law at the time of trial (Rhoden v. State, 303 Ga. 482 (2018); Reddick v. State, 321 Ga. 73 (2025) (noting the statutory change)).
Moody v. State, 316 Ga. 490 (2023), and Johnson v. State, 316 Ga. 672 (2023): Illustrate the flexibility afforded to experts under former § 24-7-707 regarding the scope of their opinions in criminal cases.
Lopez v. State, 350 Ga. App. 662 (2019): Challenges to an expert’s qualifications often go to weight and credibility, not admissibility—an analogy the Court used to uphold the prison gang expert’s testimony about movement records.
Hill v. State, 310 Ga. 180 (2020), and Calhoun v. State, 308 Ga. 146 (2020): Support the conclusion that where the State’s evidence is strong, assumed deficiencies often fail the prejudice prong.
State v. Jones, 297 Ga. 156 (2015): Confirms Georgia’s liberal standard of relevance under Rule 401.
Dougherty v. State, 321 Ga. 577 (2025): Emphasizes that exclusion under Rule 403 is an “extraordinary remedy” to be used sparingly.
Mattei v. State, 307 Ga. 300 (2019): Limiting instructions mitigate the risk of unfair prejudice.
Flood v. State, 311 Ga. 800 (2021): Cumulative-prejudice analysis aggregates only actual errors; non-errors are excluded from the calculus.
Blalock v. State, 320 Ga. 694 (2025): Characterizes objections as trial tactics that generally do not justify reversal absent objectively unreasonable choices.
Denny v. State, 321 Ga. 427 (2025): If an objection would not have succeeded, counsel is not deficient for failing to make it.

Legal Reasoning

The Court organized its Strickland analysis by each category of alleged deficiency.

(a) Gang Expert “Hearsay” and Strategy to Cross-Examine Rather than Object

The State’s prison security-threat investigator described intake procedures, gang validation, and introduced gang-affiliation forms for Momon and co-indictee Berrian. He also relayed information from the “other comments” section of Momon’s form, including allegations that Momon was a gang leader who ordered an attack and was involved in contraband distribution. Momon argued the expert merely “regurgitated” hearsay.

The Court held that counsel’s choice to attack the testimony through vigorous cross-examination, rather than object, was not objectively unreasonable. The cross-examination elicited:

That young inmates often join gangs for protection;
The prevalence of gangs in Georgia prisons, blunting the inference of violent predisposition;
That the expert did not personally prepare the forms and lacked firsthand knowledge of the underlying assessments.

Importantly, other admissible evidence (e.g., Ledford’s testimony) established Momon’s gang affiliation. In this context, objecting risked highlighting the material, inviting an adverse ruling in front of the jury, or suggesting defense anxiety about the testimony. Under Koonce and Spratlin, it was reasonable to permit the testimony in and then undermine its weight.

Separately, a claim that the expert improperly commented on Momon’s invocation of his Fifth Amendment rights was forfeited under Patterson because it was neither argued in the motion for new trial nor ruled upon by the trial court; counsel’s mere questioning at the hearing did not preserve the issue.

(b) Scope of the Gang Expert: Inmate Movement Records and Misconduct

The expert testified that movement records showed Momon and Berrian were housed in the same dorm for a time years earlier, and that some of Momon’s transfers related to contraband or conflicts with inmates. Momon contended this exceeded the expert’s gang-related specialty.

The Court applied the law in effect in 2014—former OCGA § 24-7-707—which broadly permitted criminal expert opinions derived from experience. As a security-threat investigator qualified in prison gang affiliation, the expert was familiar with movement records: how they are kept, what notations mean, and their use in assessing gang-related threats. On that record, an objection would likely have failed, so counsel was not deficient under Denny.

The Court distinguished Robertson v. State, 225 Ga. App. 389 (1997), which involved a physician attempting to opine on ballistics, a field wholly outside medicine. By contrast, testimony about movement records and related misconduct was sufficiently within the expert’s prison-based skillset.

(c) Phone Number Attributions and Hearsay

A detective linked:

the 678 number to Momon (via Ledford’s identification),
the 706 number to co-defendant Griswould (via an accident report), and
the 803 number to co-indictee Berrian (also via the accident report).

As to the 678 and 706 numbers, any objection would have been futile because the detective’s testimony was cumulative of other admissible evidence (Ledford’s and Antoinette’s testimony about the 678 number; a separate witness and matching carrier/device records regarding the 706 number). Under Koonce and Hill, counsel was not deficient for omitting a cumulative-evidence objection.

Regarding the 803 number attributed to Berrian, the Court pretermitted deficiency and found no prejudice because the State’s theory did not turn on proving which associate actually pulled the trigger. The State’s evidence strongly showed that Momon orchestrated the crime: he exchanged detailed texts about Riley’s identity and location; asked whether “he” was present and the color of the front door; texted “they” were “coming tonight”; coordinated timing (“They in?”) and received the contemporaneous “They shot him” message. Eliminating the link between Berrian and the 803 number would not reasonably have undermined the jury’s finding that Momon enlisted someone to kill Riley.

(d) Relevance (Rule 401) and Unfair Prejudice (Rule 403) Objections to Gang Affiliation and Prison Misconduct

Although Momon moved pretrial to exclude portions of his movement records and gang-affiliation form (including validation as a Gangster Disciple and prison misconduct), trial counsel said “no objection” when the evidence was introduced. The Court assumed waiver but held that re-asserted objections likely would have failed.

Rule 401 relevance: The State’s theory was that a high-ranking gang member orchestrated the killing through subordinates. Evidence of gang affiliation and leadership status made that theory more probable by establishing Momon’s ability to order violence—well within Georgia’s liberal relevance standard.
Rule 403 unfair prejudice: Exclusion is an extraordinary remedy. Here, any prejudice was mitigated by (i) the cumulative nature of the evidence (e.g., Ledford’s direct testimony about Momon’s gang affiliation and other records of prison misconduct) and (ii) a limiting instruction directing the jury not to treat gang affiliation as bad character evidence. On balance, the probative value was not substantially outweighed by unfair prejudice.

Impact

Momon v. State carries several practical and doctrinal implications:

Strategic non-objection validated: The Court fortifies a line of cases that treat the decision to confront damaging testimony by cross-examination—rather than by objection—as a reasonable, often prudent, tactic. This posture will make “failure to object” ineffective assistance claims harder to sustain where counsel pursued a plausible cross-examination strategy.
Preservation pitfalls highlighted: Saying “no objection” at trial can waive earlier pretrial objections. And at the motion-for-new-trial stage, merely questioning trial counsel about an issue does not preserve it; litigants must plead and argue the claim and secure a ruling.
Expert testimony in older cases: For trials held under former OCGA § 24-7-707, courts will continue to judge counsel’s performance by that more permissive standard—even though § 24-7-702’s Daubert-like gatekeeping now applies in criminal cases. This temporal framing can be outcome-determinative in ineffective assistance claims targeting expert scope from older trials.
Gang and prison-misconduct evidence: The opinion confirms that such evidence can be relevant to show the defendant’s capacity to organize or direct violent acts, not simply propensity. Trial courts can manage prejudice through limiting instructions, and cumulative proof reduces the incremental risk of unfair prejudice.
Prejudice analysis centered on theory of culpability: Where the State’s theory is that a defendant orchestrated a crime, prejudice from excluding identity evidence of a particular triggerman may be minimal. Defense strategies on appeal must directly engage the core theory of the State’s case.
Cumulative error doctrine: Without multiple actual errors, the doctrine does not apply. Appellants should focus on preserving, developing, and proving discrete errors at the trial and motion-for-new-trial stages.

Complex Concepts Simplified

Ineffective assistance of counsel (Strickland): To win, a defendant must prove (1) deficiency—no reasonable lawyer would have acted as trial counsel did, and (2) prejudice—a reasonable probability that, but for the deficiency, the result would have been different. Both prongs are demanding.
Objective reasonableness: Courts evaluate what a reasonably competent attorney could have done, not counsel’s subjective motives or memory. If a reasonable lawyer might have chosen the same path, the performance is not deficient.
Cumulative evidence: Evidence that duplicates other admissible proof. Failure to object to cumulative evidence generally is not deficient because the objection would not change what the jury already properly heard.
Pretermitting deficiency: A court may assume (without deciding) that counsel erred and proceed directly to the prejudice question. If there is no prejudice, the ineffective assistance claim fails.
Former OCGA § 24-7-707 vs. current § 24-7-702: At the time of Momon’s trial, criminal expert testimony was broadly admissible. Georgia later aligned criminal cases with the more rigorous Daubert-type framework used in civil cases. For ineffective-assistance claims, courts judge counsel’s decisions under the rules in effect at trial.
Rule 401 relevance: Evidence is relevant if it makes any fact of consequence more or less probable. This standard is intentionally liberal.
Rule 403 unfair prejudice: Even relevant evidence may be excluded if its unfair prejudice substantially outweighs its probative value. This is a high bar; limiting instructions often mitigate prejudice.
Preservation of claims: To raise an issue on appeal, defendants must object at trial (and not later waive the objection) and must present and obtain a ruling on the issue in the motion-for-new-trial proceedings if represented by new counsel.

Conclusion

The Supreme Court of Georgia’s decision in Momon v. State reaffirms time-tested principles in ineffective assistance litigation while providing concrete guidance for trial practice. Counsel’s choice to cross-examine instead of objecting can be a sound, strategic response to potentially hearsay-laden expert testimony, especially where the same facts are provable through other admissible evidence. Under the law applicable at Momon’s 2014 trial, a prison security-threat investigator could permissibly opine on gang affiliation, movement records, and related misconduct, and the admission of gang-affiliation evidence to show capacity to orchestrate violence was relevant and not unduly prejudicial given the record and the court’s limiting instruction.

Perhaps the most salient lesson is procedural: to preserve appellate issues, objections must be timely, consistent, and expressly ruled upon. On the merits, Momon underscores the difficulty of establishing Strickland prejudice when the State’s case is anchored in extensive, corroborated communications evidence—here, texts and calls that coordinated the victim’s murder in real time. In the broader legal landscape, the decision adds clarity to the boundaries of strategic non-objection, the assessment of expert scope in older trials under former § 24-7-707, and the careful balancing of relevance against unfair prejudice in gang-related prosecutions.