Anderson v. State

In the Supreme Court of Georgia No. S26A1774

Joshua Edward Anderson v.

The State

On Appeal from the Superior Court of Newton County No. 2019CR10891

Decided: October 27, 2026

COLVIN, Justice.

Joshua Edward Anderson appeals his conviction for malice murder in connection with the death of Kevin Lamarius Marshall by striking him with a truck. 1 On appeal, Anderson argues that

1 The crimes occurred on July 4, 2019. On September 6, 2019, a Newton County grand jury indicted Anderson for malice murder (Count 1), felony murder (Count 2), and aggravated as - sault (Count 3). A jury trial was held from August 29 to Septem - ber 1, 2022, and the jury found Anderson guilty of all three charges. The trial court sentenced Anderson to life in prison with the possibility of parole for Count 1 plus five years in prison for Count 3. The felony murder charge was vacated by operation of law. Anderson submitted a timely motion for new trial on Sep - tember 12, 2022, and amended the motion through new counsel on February 23, 2024, and September 5, 2025. On May 14, 2026, the trial court issued an order vacating the five-year sentence originally imposed for Count 3 and merging that count with Count 1 for sentencing purposes. That same day, the trial court

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.

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his trial counsel was constitutionally ineffective for failing to re - tain an accident reconstruction expert to testify at trial and for failing to object to the trial court's failure to charge the jury on the law of accident. Anderson also argues that cumulative preju - dice from these instances of deficient performance warrants a new trial. As explained below, we conclude that Anderson has not shown deficient performance with respect to his first ineffective - assistance-of-counsel claim, that his second ineffective-assis - tance-of-counsel claim is procedurally barred, and that there is no prejudice to cumulate. Accordingly, we affirm Anderson's convic - tion.

1. The trial evidence showed the following. In July 2019, Kenneth Browning ("Kenneth"), Kenneth's ex-wife Samantha Browning ("Samantha"), and Larry Gray lived at a house in Cov - ington ("the Browning residence"). The Brownings had known both Anderson and Marshall for about a year. Anderson was da - ting the Brownings' daughter, Kendra Browning ("Kendra"), at that time. And Marshall was a family friend and frequent house - guest at the Browning residence.

On July 4, the plan was for Anderson to pick up Kenneth and Marshall from the Browning residence to go fishing, after which they would come back to the house for a Fourth of July cookout. Consistent with the plan, Anderson drove to the Brown - ing residence, where Marshall and Gray were sitting outside on the porch. When Anderson arrived at the home, he went inside and told the Brownings, "Y'all, don't come outside for about 20 denied the motion for new trial as amended. Anderson timely filed a notice of appeal directed to this Court. The appeal was docketed to this Court's August 2026 term and submitted for a decision on the briefs.

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minutes." Anderson then went back outside. Despite Anderson's warning, Kenneth and Samantha im - mediately went outside. Samantha testified that, when she walked outside, she heard Marshall and Gray talking, "play[ing]"

around, and "cutting [it] up." According to Samantha, at some point, Marshall told Gray, "You don't want to start nothing[.] I'll whoop your a** today." Samantha stated that a fight between An - derson and Marshall ensued.

Anderson, who took the stand in his own defense, testified that Marshall and Gray had been "speaking kind of aggressively towards each other" and that their "body language" was "aggres - sive," as well. According to Anderson, Gray stood up to "defend[ ] himself," and Marshall "reared back" "like he was about to hit [Gray]," at which point Anderson intervened on Gray's behalf. Kenneth testified that he saw Anderson "hit [Marshall], … t[ake] him over the handrails, … then d[i]ve over the top on him, … pin[ ] him down with his knees," and continue hitting him a

"bunch" of times. Kenneth unsuccessfully attempted to stop the fight before going to a neighbor's house to call 911. Samantha tes - tified that, while Kenneth was at the neighbor's house, she at - tempted to get Anderson off Marshall by hitting him repeatedly with a bucket. When that failed, she called 911 and threatened Anderson with a weapon. Ultimately, the fighting ceased, Mar - shall left the house on foot, and, shortly thereafter, Anderson left the house in his truck.

The record shows that the Browning residence was located on a narrow, dead-end road with a blind curve. Security camera footage from a nearby home showed that Marshall walked down the road leading away from the Browning residence and around the blind curve. The footage further showed that, shortly thereaf - ter, Anderson drove his truck in the same direction and rounded

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the curve at a high rate of speed. Anderson testified that he was "going very fast for condi - tions," that he rounded the blind curve, and that he "immediately slammed on [his] brakes and veered to the left side of the road to get out of the way" as soon as he "noticed [Marshall] was in the middle of the road" "200 or so feet" in front of him. The truck slammed into Marshall at over 50 mph. Anderson testified that he "did the best [he] could to avoid [hitting Marshall]," but that he was unable to do so because "200 feet really comes quick when you're going fast," Marshall "wasn't moving out of the road," and there were obstructions on "the left side of the road." According to Anderson, after hitting Marshall, he "panicked" and drove away from the scene.

A neighbor testified that he heard "a car sliding" and then

"a bang," and that 15 to 30 seconds later he saw Anderson's car drive by with a "bent up" hood. Samantha, who also heard a

"boom," walked down the street and found Marshall lying dead in the road. The medical examiner later determined that Marshall had died from "[b]lunt force trauma of the head, neck, and torso … due to a pedestrian vehicle collision," and that the vehicle was traveling over 50 miles per hour when the collision occurred. After the incident, Anderson drove to his home, where his girlfriend, Kendra, was sleeping. According to Kendra's testi - mony, Anderson woke her up, saying, "Get up, babe, we got to go."

Anderson then grabbed a bag of clothes and drove Kendra into the woods, where they abandoned his vehicle. From there, the pair walked to a neighbor's home, where they were allowed to use a phone to call Anderson's mother. The neighbor testified that An - derson spoke to his mother on speaker phone, saying, "My truck broke down. I just need you to come and get me," and his mother responded that she would be there in three hours.

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Anderson and Kendra then left the neighbor's home and sat in the woods, where they could hear sirens and other emer - gency response noises in the distance. According to Kendra, she asked Anderson what was going on, and he responded "that he either 'paralyzed him or killed him,' that he was going about 50 miles an hour," and that he would give her "the full story" when they "got where [they] were going." The pair then left the woods and were later picked up by Anderson's mother. Anderson, Kendra, and Anderson's mother checked into a hotel after midnight on July 5. In the morning, they bought clothes for Anderson and Kendra and then went to Anderson's mother's home, where Anderson acquired his father's truck. An - derson and Kendra then drove to New York to stay with Ander - son's father. That night, Kendra spoke on the phone with her daughter, who informed Kendra that Marshall was dead. Kendra testified that she then confronted Anderson with this infor - mation, and Anderson said that "he would tell [her] everything when [they] got to New York."

Kendra testified that, upon reaching New York, Anderson told her "that h[e] and [Marshall] got into the fight, [that] he beat [Marshall] up, and that he hit [Marshall] with the car." Kendra further testified that Anderson told her he hit Marshall "because he was tired of [Marshall] talking smack."

2. On appeal, Anderson raises two ineffective-assistance - of-counsel claims. To prevail on these claims, Anderson "must show that counsel's performance was deficient and that counsel's deficient performance prejudiced [his] defense." Troutman v. State, 320 Ga. 489, 494 (2024). "If a defendant fails to establish one of these two prongs, we need not examine the other." Id. (cleaned up). "To show deficient performance, the defendant must

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demonstrate that counsel performed counsel's duties in an objec - tively unreasonable way, considering all of the circumstances and in the light of prevailing professional norms." Id. (quotation marks omitted). "To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's un - professional error, the result of the proceeding would have been different." Id. (cleaned up). "In reviewing a ruling on a claim of ineffective assistance of counsel, we defer to the trial court's find - ings of fact unless they are clearly erroneous, but we apply the law to the facts de novo." Id. (quotation marks omitted).

(a) First, Anderson claims that his trial counsel was consti - tutionally ineffective for failing to retain an accident reconstruc - tion expert to testify at trial. In particular, he argues that trial counsel should have called an accident reconstruction expert be - cause the focus of the case was on Anderson's state of mind at the time of the collision, which made it "critical to have an expert ex - plain through science and physics[ ] what occurred at the time of the collision" and how Anderson lacked sufficient time to avoid the collision. The trial court concluded that Anderson had not shown prejudice as to this claim. But we need not reach that issue because, as explained below, we conclude that Anderson has not shown deficient performance.

By way of background, both the prosecution and the de - fense stated in their closing arguments that this case turned on intent. The prosecution argued that intent was shown by Ander - son fighting Marshall prior to the collision and fleeing afterwards. In response, defense counsel argued that the trial evidence only supported a finding that Anderson had recklessly hit Marshall, not that he had done so intentionally, because Anderson did not have much time to see Marshall after rounding the blind curve

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and had in fact attempted to avoid the collision. Specifically, de - fense counsel argued that Anderson could not have seen Marshall

"until he rounded the curve"; that the surveillance video — which captured how fast Marshall was walking and Anderson was driv - ing and therefore showed that Marshall could not have covered much "distance" from the curve by the time Anderson's truck rounded the curve "at a high rate of speed" — established that mere "seconds" elapsed between the time Anderson rounded the curve and the impact; and that the neighbor's testimony about hearing screeching tires just before the collision showed that An - derson had attempted to avoid hitting Marshall. At the motion-for-new-trial hearing, Anderson called an ac - cident reconstruction expert to testify about the amount of time Anderson had to react between seeing and striking Marshall. Re - lying on the location of the curve, the rate of speed that the sur - veillance footage showed Marshall and Anderson were traveling down the road, and a person's ordinary perception/reaction time of 1.5 to 1.6 seconds, the accident reconstruction expert testified that, after subtracting the perception/reaction time, Anderson had "[a] little less than a second" to take evasive action and avoid the collision. The expert further testified that evasive actions gen - erally include changing direction, slowing down, or stopping, and that there was not enough time for Anderson to come to a com - plete stop before reaching Marshall.

"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." Middlebrooks v. State, 310 Ga. 748, 752 (2021) (cleaned up); see also Treadaway v. State, 308 Ga. 882, 893 (2020) (same); Martin v. State, 306 Ga. 747, 751 (2019) (same); Matthews v. State, 301 Ga. 286, 289 (2017) (same). Such a decision can only be deemed deficient if "no competent attorney would

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have made the same decision under similar circumstances." Mar - row v. State, 322 Ga. 370, 375 (2025) (cleaned up). Here, Anderson has not shown that trial counsel was defi - cient for failing to call an accident reconstruction expert because, although expert testimony may have been helpful in arguing that Anderson lacked the intent to kill, it was not unreasonable for trial counsel to support that theory of the defense in other ways. See Middlebrooks, 310 Ga. at 752 (noting that, "although expert testimony might have been helpful in rebutting" harmful evi - dence, "competent trial counsel could have reasonably decided to attack the [harmful] evidence in other ways"). As noted above, Anderson's proposed expert would have opined that, because An - derson was traveling at a high rate of speed and struck Marshall just after rounding a blind curve, Anderson had little time to avoid hitting Marshall. However, trial counsel advanced the same theory of the defense through argument that Anderson argues should have been advanced through expert testimony. Specifically, it was undisputed at trial both that there was a blind curve in the road and that Marshall was struck by Ander - son's vehicle shortly after Anderson rounded the curve. Several pieces of evidence showed that Anderson was traveling at a high rate of speed when the collision occurred, including the surveil - lance footage, Anderson's own testimony, Anderson's admission to Kendra that he was driving 50 miles per hour, and the medical examiner's testimony about the speed of the vehicle that collided with Marshall. And both the neighbor's testimony that he heard screeching tires just before the collision and Anderson's testimony that he slammed the brakes supported a finding that Anderson unsuccessfully attempted to avoid hitting Marshall. Based on this evidence, trial counsel argued in closing that Anderson did not have enough time to avoid hitting Marshall after rounding the

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curve and thus that Anderson lacked the intent to kill. As the decision to call an expert witness is generally within trial counsel's discretion, Anderson's trial counsel was not defi - cient for making the reasonable decision to advance the "unavoid - able collision" argument through evidence, such as eyewitness testimony and security footage, other than expert testimony. See Matthews, 301 Ga. at 289 (holding that it was not deficient to use

"argument to advance a defense theory," rather than calling an expert witness).

(b) Second, Anderson argues that his trial counsel was con - stitutionally ineffective for failing to object to the trial court's fail - ure to charge the jury on the law of accident. As explained below, however, this claim is procedurally barred.

By way of background, the trial court declined to charge the jury on the law of accident, and, although trial counsel ob - jected to that ruling during the charge conference, counsel failed to object after the court charged the jury in accordance with its prior ruling. In his motion for new trial, Anderson argued that the trial court erred in declining to give an accident instruction. But he did not argue that trial counsel was ineffective for failing to object to the jury charge, and the trial court did not rule on such a claim.

Here, "appellate counsel never asserted a specific ineffec - tiveness claim" in the trial court. Rickman v. State, 304 Ga. 61, 66 (2018) (quotation marks omitted). Additionally, "[t]he lack of ruling from the trial court [on whether trial counsel was deficient for failing to object] indicates that the court did not view this claim as having been raised implicitly, which could have pre - served the claim for appellate review." Tabor v. State, 315 Ga. 240, 250 (2022). Therefore, this claim is procedurally barred and must fail.

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3. Finally, Anderson argues that cumulative prejudice from his trial counsel's ineffectiveness warrants a new trial. Establish - ing cumulative error requires a defendant to demonstrate that

"the cumulative prejudice from any assumed deficiencies showed a reasonable probability that the results of the proceeding would have been different in the absence of the alleged deficiencies."

Gines v. State, 324 Ga. 46, 68 (2026) (quotation omitted). As explained above, Anderson has not shown any instances of deficient performance. Because "he has not shown multiple er - rors … on the part of … trial counsel," this claim fails. Bradford

v. State, 323 Ga. 675, 694 (2026). Judgment affirmed. All the Justices concur.