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
Decided: February 18, 2025
S24A1184. WASHINGTON v. THE STATE.
COLVIN, Justice.
Appellant Jamie Alexander Washington appeals his
convictions for felony murder and related crimes in connection with
the aggravated assault of Desmond Carter at a motel in Dougherty
County and the shooting death of James Hawkins near the motel.1
1 The crimes occurred on July 5, 2015. On October 1, 2015, a Dougherty
County grand jury returned an indictment against Appellant, Mylan Mahoney,
and Malcolm Bernard Offord, Jr. The co-defendants were reindicted on
February 8, 2017, and Appellant was charged with conspiracy to commit armed
robbery (Count 1), felony murder predicated on aggravated assault (Count 5),
and aggravated assault of Hawkins and Carter (Counts 6 and 7, respectively).
Before trial, Mahoney and Offord pled guilty pursuant to negotiated plea deals
in exchange for their testimony against Appellant. Appellant was tried before
a jury from February 17 through 21, 2020, and the jury found Appellant guilty
as charged. The trial court sentenced Appellant to life in prison without the
possibility of parole for felony murder (Count 5) and imposed concurrent tenyear and consecutive 20-year prison terms for conspiracy to commit armed
robbery (Count 1) and aggravated assault (Count 7), respectively. The court
merged for sentencing purposes the remaining aggravated-assault count
(Count 6) with the felony-murder conviction (Count 5). Appellant timely filed
a motion for new trial through new counsel on August 4, 2020, and amended
Appellant raises numerous claims of trial-court error and ineffective
assistance of counsel. But as explained below, we conclude that his
claims are unpersuasive and therefore affirm his convictions.
1. The trial evidence showed the following. Malcolm Bernard
Offord, Jr. (“Offord”) testified that, early in the morning on July 5,
2015, he drove Appellant and Mylan Mahoney to a motel. According
to Offord and Mahoney, they were interested in getting some drugs,
and the purpose of their motel visit was to meet with Offord’s father,
Malcolm Bernard Offord, Sr. (“Senior”), who admitted in his own
trial testimony that he was a drug dealer at the time. According to
Offord, when they arrived at the motel, Senior got into Offord’s
parked truck with the other men. Senior testified that he talked to
Appellant about drugs, but when Appellant asked to buy a
substantial amount of “crack cocaine,” Senior “backed off.”
Offord testified that “the conversation got switched from
the motion on February 28, 2022. Following a hearing, the trial court denied
the motion for new trial on March 11, 2024. Appellant then timely filed a notice
of appeal directed to this Court. The case was docketed to this Court’s August
2024 term and submitted for a decision on the briefs.
2
buying drugs to robbing a drug dealer,” and Mahoney confirmed that
a conversation about committing a robbery occurred. Offord said
that Appellant asked Senior about who was selling drugs, and, after
Senior gave Appellant some information about different drug
dealers, Appellant and Senior got out of the truck, looked at a motel
room, and then returned to the vehicle. Offord testified that he,
Appellant, and Mahoney then left the motel together and “chill[ed]”
elsewhere for the day.
That night, according to Offord, Appellant brought up the idea
of committing a robbery again, saying, “We could go on ahead and
do it now,” and, “We’re going to do it now,” to which Offord
responded, “Okay.” Offord testified that, before Offord drove
Appellant and Mahoney back to the motel, they picked up some
black bandanas from a store, Appellant and Mahoney changed into
black clothing, and Appellant got a .357-caliber handgun from
someone. Mahoney said that the pistol Appellant had was a
“revolver.” According to Offord, Offord gave Mahoney a .380-caliber
pistol, which Offord confirmed was an “automatic” pistol that ejected
3
shell casings when fired, rather than a revolver, and which Mahoney
described as a .380-caliber High Point. Offord said that he then
dropped off Appellant and Mahoney in an alley behind a fast-food
restaurant, which the record shows was near the motel.
Mahoney testified that they planned to rob someone at the
motel, but “Carter got in the way of everything.” Carter, who was
renting a room at the motel on July 5, 2015, testified that two men,
one of whom he identified in the courtroom as Appellant, were in the
motel’s breezeway that night. Mahoney, who testified that he was
the other man Carter encountered, said that only Mahoney’s face
was masked at the time. And Carter testified that Appellant was not
wearing a bandana or anything covering his face.
According to Carter, Appellant asked Carter for a cigarette
lighter. And Mahoney similarly testified that Appellant asked
Carter for a cigarette. But before Carter could give Appellant “a
light,” Carter said, he saw Appellant “grabbing for his pants[,] . . .
like he was pulling a weapon out,” and Carter saw “something
chrome” that he recognized as a “revolver.” Mahoney testified that
4
Appellant pulled out a revolver, and according to both Carter and
Mahoney, Carter “took off running.” Carter testified that the two
men chased him, but he got away. And Mahoney testified that, while
he and Appellant were chasing Carter, Carter “dropped something
on the ground,” and Appellant stopped to pick up what Carter had
dropped. Then, according to Mahoney, Appellant and Mahoney left
the motel.
The chase was witnessed by a motel patron, who testified that,
after hearing some noise, she saw two men with masks chase Carter
and then run in the opposite direction. And the chase was also
captured by motel surveillance cameras. Specifically, the motel’s
surveillance video showed that a man, whom Carter identified as
himself, ran alongside the motel and then across the parking lot.
The video further showed that the man identified as Carter was
being chased by two other men, whom Mahoney identified as himself
and Appellant. And the video showed that the men identified as
Appellant and Mahoney stopped their pursuit at the corner of the
building, where the man identified as Appellant appeared to pick up
5
something from the ground before both men ran in the opposite
direction.
Mahoney testified that, following the chase, he and Appellant
“ran through the alley” near the motel to get back to Offord’s vehicle.
Mahoney said that, while wearing a mask and having his gun out,
he ran “full speed” around a corner from the alley onto the sidewalk,
and he encountered Hawkins standing there by a bus stop.
According to Mahoney, Hawkins “confronted” Mahoney, tackling
him to the ground. Mahoney testified that he and Hawkins “wrestled
around” on the ground, but Mahoney eventually managed to get free
of Hawkins and stand up. According to Mahoney, after Mahoney got
to his feet, Appellant “shot [Hawkins].”
Two cousins, who happened to be driving by at the time,
testified that they witnessed the shooting. One cousin testified that
three men came out of an alley, that he heard “two or three”
gunshots and saw the associated “fire go off,” and that two of the
men then ran away from the scene. He further testified that he
called 911 and told dispatch that a man had been shot and was lying
6
face down on the ground. Similarly, the other cousin testified that
he saw two men walking behind a third man, that one of the two
men shot the third man, who fell to the ground, and that the two
men then “took off running.” 2
Offord said that he heard the gunshots, and Mahoney testified
that, following the shooting, he and Appellant ran back to Offord’s
vehicle. According to Offord and Mahoney, Appellant and Mahoney
got into Offord’s truck, and Offord drove them away from the scene.
Offord testified that, as they drove, everyone was “quiet” and there
was a “tens[e]” atmosphere in the truck. According to Offord, after
the shooting, he retrieved his gun from Mahoney, dropped off
Appellant and Mahoney, “got rid of [his] gun,” and then “report[ed]
[his] gun stolen” to avoid blame for “anything that had occurred over
there.”
Officers who responded to the scene of the shooting found
Hawkins lying dead on the ground. Although Hawkins had multiple
2 Because it was dark, neither cousin could identify the men involved in
the shooting.
7
gunshot wounds, officers did not find any shell casings. And a crime
scene investigator with firearms training testified that, in contrast
with an “automatic” pistol that “automatically eject[s]” a shell casing
when fired, a “shell casing stays inside” a “revolver” when fired and
must be “manually take[n] . . . out” of the gun.
Offord said that, sometime during the night of the shooting,
Offord returned to the crime scene to check on his father, Senior,
who had told Offord over the phone that someone had been shot.
Offord testified that Senior was concerned that the victim might be
Hawkins, who, as it turned out, was a member of their extended
family. According to Senior, Offord told Senior that Offord had
something to do with the shooting, saying that he was “sorry,” that
he had brought the men he had been with that morning back to the
motel, and that “[t]hey did that.” Senior testified that he told Offord,
“Man, turn yourself in.” And when Offord failed to do so, Senior
testified, he contacted the police to report Offord’s involvement in
the crime. According to Senior, he called Offord and allowed police
officers to listen to their conversation. When asked if “anyone
8
identif[ied] [Appellant] at that point to the police,” Senior responded,
“[Offord] did.”
The medical examiner who later performed Hawkins’s autopsy
testified that Hawkins was shot three times in his left side from a
distance of at least two-and-a-half feet away, resulting in injuries to
his chest, hip, and knee that were fatal, potentially fatal, and
nonfatal, respectively. According to the medical examiner, Hawkins
also had blunt force injuries to his right side that were consistent
with “a fall-type injury.”
Appellant, who took the stand in his own defense, denied
meeting with Senior on the morning of the shooting, participating in
any conspiracy with Offord or Mahony, planning to rob drug dealers,
being present at the motel on the night of the shooting, being present
for the shooting itself, or knowing anything about the shooting.
Appellant testified that, on the night of the shooting, he was in
another neighborhood that he frequented. According to Appellant,
that night he “smok[ed] weed” and “kick[ed] it” with some “guys” and
“might” have also gone to the house of “[a] girl name[d] Tree,” with
9
whom he had a sexual relationship, and either “kick[ed] it [there]
for the rest of the night” or “ha[d] sex with her” and then “peel[ed]
out [to] go to another homie[’s] house” to “kick it.”
Appellant claimed that Offord and Mahoney were lying about
him because they were angry that he had beaten them up. Appellant
explained that he, Offord, and Mahoney were members of “a Blood
gang” called the “Georgia Denver Lanes,” and that Appellant was
the “enforcer” of the gang tasked with punishing gang members for
violations of gang protocol. Appellant described himself as “a
fighter” who trained to box, “like[d] to fight,” and was known as “Jaw
Jacker” because “Jaw” is an acronym for his first, middle, and last
name, and because he “fight[s] very well.” He further said that “a
lot” of his fights had been “videotaped” and that he was “well-known”
in the community “because one of [his] videos went viral and had
over a million views.” According to Appellant, he beat up Offord and
Mahoney two days before Hawkins’s shooting because Offord and
Mahoney had violated gang protocol when they committed a “driveby” shooting and used a “registered gun” that “leaves a trail.”
10
Appellant said that Offord and Mahoney got “extremely mad” when
Appellant told them they needed to be punished for violations, and
that Offord and Mahoney “very much” felt like Appellant had
stepped out of line by beating them up.
2. Appellant argues that the trial court erred in denying his
motion for a directed verdict as to the felony-murder charge because
the trial evidence was insufficient under Georgia’s accomplicecorroboration statute, which provides that, in “felony cases where
the only witness is an accomplice, the testimony of a single witness
shall not be sufficient.” OCGA § 24-14-8. Specifically, Appellant
argues that the only evidence that Appellant shot Hawkins came
from Mahoney, who was an accomplice to the crime. And although
Appellant concedes that both Mahoney and Offord testified that
Mahoney and Appellant were present and armed when the shooting
occurred, he argues that no evidence showed “which handgun fired
the fatal rounds.” This claim fails.
“The standard of review for the denial of a motion for a directed
verdict of acquittal is the same as for determining the sufficiency of
11
the evidence to support a conviction.” Clements v. State, 317 Ga. 772,
783 (1) (896 SE2d 549) (2023) (citation and punctuation omitted). In
assessing the sufficiency of the evidence,
we view all of the evidence presented at trial in the light
most favorable to the verdicts and ask whether any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt of the crimes of which he was
convicted.
Id. at 789 (4) (citation and punctuation omitted). It is well
established that, “in order to sustain a [felony] conviction under
Georgia law, testimony by an accomplice to a crime must be
corroborated by other evidence implicating the defendant.”
Nicholson v. State, 307 Ga. 466, 471 (2) (837 SE2d 362) (2019) (citing
OCGA § 24-14-8). “[T]he testimony of one accomplice,” however, “can
be corroborated by the testimony of another accomplice.” Id. (citation
and punctuation omitted). And “corroborating evidence may be
slight,” “may be entirely circumstantial,” and “need not be sufficient
in and of itself to warrant a conviction, so long as it is independent
of the accomplice’s testimony and directly connects the defendant to
the crime or leads to the inference of guilt.” McGarity v. State, 308
12
Ga. 417, 420 (841 SE2d 718) (2020) (citation and punctuation
omitted). “Once the State has introduced independent evidence
implicating the defendant, it is for the jury to decide whether the
accomplice’s testimony has been sufficiently corroborated.” Id.
(citation and punctuation omitted).
Contrary to Appellant’s argument, he was not convicted of
felony murder based solely on the uncorroborated testimony of
Mahoney. Offord and Mahoney both testified that, on the morning
of the shooting, they were present with Appellant for a conversation
about committing an armed robbery at the motel. Mahoney testified
that the men went back to the motel that evening planning to
commit a robbery there. And Offord corroborated that testimony,
saying that, in the evening, Appellant expressed a desire to commit
the robbery “now,” after which Offord drove Appellant and Mahoney
to the motel. Further, both Mahoney and Carter identified Appellant
as the man who, along with Mahoney, attempted to rob Carter
shortly before Hawkins’s shooting. Mahoney’s testimony that he and
Appellant ran down an alley near the motel after attempting to rob
13
Carter was corroborated by the motel patron who saw two men chase
Carter and then run in the opposite direction, and by video
surveillance footage from the motel showing that, after Carter got
away, the two men chasing him turned around and ran in the
direction of the alley that led to the location where Hawkins was
ultimately shot. And Mahoney’s testimony that he encountered
Hawkins at the end of the alley, that Appellant shot Hawkins, and
that Mahoney and Appellant then ran back to Offord’s vehicle was
corroborated by the two cousins who witnessed two men run away
after shooting the victim and by Offord’s testimony that, following
the gunshots, Appellant and Mahoney got into Offord’s truck.
Although Appellant contends that the trial evidence was
insufficient to convict him of felony murder because no evidence
corroborated Mahoney’s testimony that Appellant personally shot
Hawkins, proof that Appellant, rather than Mahoney, shot Hawkins
was not essential to establish Appellant’s guilt as a party to
Hawkins’s murder. See Henderson v. State, 317 Ga. 66, 72-73 (2)
(891 SE2d 884) (2023) (noting that the jury could have found the
14
defendant guilty of murder as a party to the crime “even if [the
defendant] was merely the driver and did not personally shoot either
victim”). In any event, the record belies Appellant’s argument that
no trial evidence corroborated Mahoney’s testimony that Appellant
was the shooter. Specifically, when asked, Offord agreed that
Mahoney was armed with an “automatic” pistol that ejected shell
casings when fired, Carter testified that Appellant was armed with
a “revolver,” and a crime scene investigator with firearms training
testified that a difference between “automatic” pistols and
“revolver[s]” was that only the former type of firearm would
automatically eject shell casings when fired. Because no shell
casings were found at the scene, where Hawkins suffered multiple
gunshot wounds, the jury would have been authorized to find that
the person carrying the revolver (Appellant), rather than the person
carrying an “automatic” pistol (Mahoney), shot Hawkins. And that
evidence therefore corroborated Mahoney’s testimony that
Appellant was the shooter.
Accordingly, we conclude that the trial evidence was sufficient
15
under Georgia’s accomplice-corroboration statute to support
Appellant’s conviction for felony murder.
3. Appellant argues that, during an exchange with Carter, the
trial court violated OCGA § 17-8-57 (a) (1), which prohibits a judge
presiding over a criminal case from “express[ing] or intimat[ing] to
the jury the judge’s opinion as to whether a fact at issue has or has
not been proved or as to the guilt of the accused.” We disagree.
By way of background, following the robbery incident, a
detective presented Carter with a photo lineup that included
Appellant’s photo, and Carter identified Appellant’s photo, noting
that Appellant’s nickname was “Jaw Jacker.” At trial, Carter was
unclear about what role statements from people in his community,
as opposed to his own memory, played in his identification of
Appellant and Appellant’s nickname during the photo lineup. Carter
testified that Appellant’s name did not come up immediately in his
interview with the detectives because “it wasn’t clear to [him] until
after,” and Appellant’s “face didn’t too much hit [him] until [he]
started realizing who [Appellant] was and people [in the community]
16
went to talking,” after which he knew “[t]hat’s who that was.”
Seeking clarification about Carter’s testimony, the court asked,
“Now, did you have the benefit of th[ese] people in the community
talking before . . . or after . . . you went downtown and spoke with
officers?” Carter responded that “the people went to talk
afterwards.” The court then asked, “I guess the question is[,] did
whatever you heard in the community . . . play any role in your
determination of the person?” And Carter responded, “Yes, ma’am.”
Shortly after this exchange, the court said to counsel, “I was
just trying to get an understanding. It seemed unclear as to what he
was saying. And I wanted to make sure that it was clear. That I
understood it.” But a discussion between the court and defense
counsel about what Carter was “stating” led defense counsel to
conclude that matters were still “very unclear,” so the court directed
further questions to Carter. And as specifically relevant on appeal,
the following exchange occurred:
The Court: But now, this is key now. I want to make sure
that this is the truth. That when did – when this incident
happened with you and when you went downtown to
17
speak with law enforcement, I heard you say that – or you
testified that there was some talk in the community about
this incident.
Mr. Carter: Yes, ma’am.
The Court: My question is[,] did the talk in the community
play a role in your identification of the people [sic] [i]n this
photograph?
Mr. Carter: I still can’t get this down.
The Court: You don’t understand what I’m asking?
Mr. Carter: Yes, ma’am.
The Court: All right. So what I’m trying to say, did you
rely on what the people said in the community to make
the identification, or did you rely on your own senses to
make the identification?
Mr. Carter: I relied on the people in the community.
The Court: You only made the identity of the person in
the photograph based on what people in the community
said?
Mr. Carter: Right. That’s what brought my memory of
who this guy – who he was.
The Court: I guess I[ ] confused you. Are you saying a
name versus who you saw on that evening? Well, let me
just ask it like this, because I want to make sure. And it’s
not my job to do that, but I was confused. . . .
(Emphasis supplied.) At this point, defense counsel objected that the
question had been “asked and answered,” and the court responded:
Well, I want to make sure that it’s clear. . . . I interposed
a question, because I was confused about what he said.
And if I was confused, I presupposed that the jury was
likewise confused. And so I asked questions only for
purposes of clarity.
18
The court did not ask any further questions of Carter, and on
redirect examination, Carter testified that he had identified
Appellant in the photo lineup based on his memory. But he also
expressed that he was “kind of confused” about when he heard talk
in the community in relation to when he identified Appellant in the
photo lineup. And he gave conflicting testimony about whether he
knew Appellant’s nickname, “Jaw Jacker,” when he made the photo
identification.
Appellant argues on appeal that the trial court violated OCGA
§ 17-8-57 (a) (1) by telling Carter that “I want to make sure that this
is the truth.” According to Appellant, this statement improperly
expressed an opinion that a fact at issue in the case had been proved,
namely, that community discussions did not play a role in Carter’s
identification of Appellant. And as a result, Appellant argues, the
comment also implied that Appellant was guilty.
Because Appellant did not object at trial that the court’s
statement violated OCGA § 17-8-57 (a) (1), we review this claim
“only for plain error.” Thompson v. State, 304 Ga. 146, 155-156 (11)
19
(816 SE2d 646) (2018). See also OCGA § 17-8-57 (b) (providing that
an unpreserved argument that a statement violated OCGA § 17-8-57 (a) (1) is reviewed for plain error on appeal). To establish plain
error under OCGA § 17-8-57, an appellant
must point to a legal error that was not affirmatively
waived, was clear and obvious beyond reasonable dispute,
affected his substantial rights, and seriously affected the
fairness, integrity, or public reputation of judicial
proceedings.
Tedder v. State, 320 Ga. 29, 38 (3) (a) (907 SE2d 623) (2024) (citation
and punctuation omitted).
Here, Appellant has not shown any error, much less plain
error. Carter’s testimony was confusing, and the judge’s statement
that she “want[ed] to make sure that this is the truth” expressed
only a desire to clarify what Carter was trying to convey to the jury.
Further, the judge’s line of questioning focused narrowly on trying
to clarify a specific aspect of what Carter was saying — whether he
was saying he identified Appellant in the photo lineup and gave the
detective Appellant’s nickname based on his personal recollection of
the incident or based on comments made by people in Carter’s
20
community. See Sturkey v. State, 319 Ga. 156, 158-159 (2) (902 SE2d
607 (2024) (“Beyond the narrow prohibition contained in OCGA
§ 17-8-57 (a), it is well settled that a trial judge has discretion to
propound questions to a witness to develop the truth of the case or
to clarify testimony,” and “[t]he extent of such examination likewise
is a matter of the judge’s discretion.” (citation and punctuation
omitted)). The judge did not “indicate, either impliedly or expressly,”
that Carter was telling the truth, that the judge had an opinion
about which of Carter’s seemingly inconsistent statements were the
truth, or that “the judge viewed [Carter’s testimony] as conclusive
evidence of [Appellant’s] guilt.” Id. at 159 (2) (holding that a judge’s
statements and questions “focused narrowly” on obtaining clarity
about a witness’s methodology did not express an opinion about the
evidence or the defendant’s guilt). Accordingly, this claim fails.
4. Appellant argues that the trial court abused its discretion in
permitting the State to ask Appellant questions about his criminal
history during cross-examination. We conclude, however, that any
error was harmless.
21
At trial, Appellant volunteered on direct examination that he,
Offord, and Mahoney were gang members, that, as the enforcer of
the gang, Appellant beat up other gang members for violations of
gang protocol, and that he had beat up Offord and Mahoney for
gang-protocol violations two days prior to Hawkins’s shooting. On
cross-examination, Appellant testified that he had authority to
discipline gang members in the Albany area, but that he was not
always in Albany and sometimes went to Atlanta. When asked about
what he did in Atlanta, Appellant explained that he went to Atlanta
to “be with [his] family” because, while he “was incarcerated [for] 10
months,” his family had “relocated from Albany to Atlanta.” The
prosecutor then asked why Appellant had been incarcerated for ten
months, and Appellant said that he had “[m]isdemeanor charges.”
Later in cross-examination, the prosecutor asked Appellant for
his explanation for why Carter had identified him, and Appellant
responded that the community knew him due to a viral video of him
fighting. The prosecutor followed up by asking if Appellant’s
“argument” was that Carter had identified him because Carter had
22
seen Appellant on social media. In response, Appellant said that he
had “been locked up a lot of times for misdemeanors” and “locked up
[for] a couple of felonies” and that “interrogation . . . can be hell.”
Following this response, defense counsel lodged an unspecified
objection to the prosecutor’s question, which the court sustained.3
Following the court’s ruling, the prosecutor asked the court for
permission to ask Appellant “about his misdemeanors and felonies,
because he’s opened the door to that” with “his non-responsive
answer.” Defense counsel objected on relevancy grounds, but the
court overruled the objection. The prosecutor then asked which prior
misdemeanors and felonies Appellant had, and Appellant responded
that he could not recall the misdemeanors, that he had “caught”
charges in 2010 for “burglary,” “aggravated assault,” and
“hijacking,” and that only the aggravated assault was “on [his]
record]” because the other charges were “dropped.” Appellant
claimed that the State kept “put[ting]” charges on him when he was
3 In its preliminary instructions, the court instructed the jury that, if it
sustained an objection to evidence, the jury should disregard that evidence.
23
in jail. The prosecutor then inquired about what weapon the State
charged him with using in connection with the aggravated assault,
and Appellant responded that he was not charged with using a
weapon, and that he pled guilty to the charge because it was pending
for seven years, “hinder[ing] [him] from getting jobs,” and he wanted
to resolve the case. When asked if the “hijacking” charge involved
guns and stealing cars, and Appellant confirmed that “[t]hat’s what
the detective said.” Following this testimony, the prosecutor asked
if Appellant’s “testimony today [was] that [he] ha[d] been plagued
by people lying about [him] and [that was what was] happening in
this case as well,” and Appellant responded, “Yes.”
Assuming without deciding that this claim of error is preserved
for ordinary appellate review, any evidentiary error in permitting
the State to ask questions of Appellant about his criminal history
was harmless. See Smith v. State, 313 Ga. 584, 587-588 (872 SE2d
262) (2022) (noting that, where an alleged evidentiary error was
harmless under the standard for reviewing preserved nonconstitutional errors, which “is more favorable” to an appellant than
24
the test for assessing prejudice under the plain-error standard, we
need not determine whether challenges to each piece of testimony
were preserved “before assessing the aggregate harm of the
testimony that we have assumed to be inadmissible”). “A
nonconstitutional error is harmless if the State shows that it is
highly probable that the error did not contribute to the verdict, an
inquiry that involves consideration of the other evidence heard by
the jury.” Id. at 587 (citation and punctuation omitted).
Here, throughout his testimony, Appellant described himself
as a person with a violent character who committed violent acts.
Specifically, he said that he was a gang member and “a fighter,” who
trained to fight, “like[d] to fight,” beat up fellow gang members in
his role as the gang’s “enforcer,” earned a nickname based in part on
the fact that he “fight[s] very well,” and had a reputation in the
community based on a video recording of one of his fights that went
“viral.” And Appellant further volunteered information about his
criminal history without being prompted to do so, testifying that he
had previously been “incarcerated [for] 10 months” for
25
“[m]isdemeanor charges.” Appellant argues that his answers to the
prosecutor’s questions about his criminal history — which informed
the jury that he had previously been charged with several crimes
but had only been convicted of aggravated assault — reflected badly
on his general character. But given Appellant’s repeated
descriptions of himself as a violent person, it is highly probable that
this additional information about Appellant’s criminal history did
not contribute to the verdict. Cf. Hancock v. State, 277 Ga. 835, 839
(5) (596 SE2d 127) (2004) (holding that testimony from the State’s
expert witness about “prior incidents of violence reportedly
committed by [the] appellant” was harmless “in light of the
extensive testimony by defense experts discussing [the] appellant’s
past violent acts”).
5. On appeal, Appellant contends that his trial counsel was
constitutionally ineffective in multiple respects. To prevail on an
ineffective-assistance-of-counsel claim, a defendant must show
deficient performance and prejudice. See Monroe v. State, 315 Ga.
767, 781 (6) (884 SE2d 906) (2023) (citing Strickland v. Washington,
26
466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984)).
Establishing deficient performance requires a defendant to
“demonstrate that his attorney performed at trial in an objectively
unreasonable way considering all the circumstances and in the light
of prevailing professional norms.” Pierce v. State, 319 Ga. 846, 865
(11) (907 SE2d 281) (2024) (citation and punctuation omitted).
“There is a strong presumption that counsel’s representation was
within the wide range of reasonable professional assistance.” Id.
(citation and punctuation omitted). “Overcoming that presumption
requires an appellant to show that no reasonable lawyer would have
done what his lawyer did, or would have failed to do what his lawyer
did not.” Id. (citation and punctuation omitted). To establish
prejudice, “a defendant must show that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial
would have been different.” Zayas v. State, 319 Ga. 402, 409 (3) (902
SE2d 583) (2024) (citation and punctuation omitted). If the
defendant fails to establish either deficient performance or
prejudice, this Court need not examine the other requirement. See
27
Pierce, 319 Ga. at 865 (11).
(a) Appellant argues that trial counsel was ineffective for
failing to interview and obtain trial testimony from Ramona Hodge,
who testified at the motion-for-new-trial hearing that she was in the
general vicinity of the shooting, that she saw two men running, and
that, although she was unable to provide a good description of the
men “because it was dark” and she “could only see their silhouette,”
one of the men had “medium length hair” that “seemed like it had
dreads.” According to Appellant, this testimony was important
because it was undisputed at trial that Appellant did not have
dreadlocks.
This claim fails because Appellant has not shown deficient
performance. At the motion-for-new-trial hearing, Hodge testified
that she had moved to another state in 2018 (two years before
Appellant’s trial), and that she had not provided updated contact
information to the police when she did so. Trial counsel testified
that, before trial, he attempted to track down Hodge, visiting two
residences associated with Hodge and using Lexis Nexis, People
28
Finder, and “another program,” but that he was unable to find her.
And Appellant’s mother corroborated trial counsel’s testimony,
testifying that Appellant’s trial counsel told her before trial that he
had visited two addresses looking for Hodge, but that he was unable
to get in contact with her. Because trial counsel made reasonable
efforts to locate Hodge but was unable to do so, counsel was not
deficient. See Moore v. State, 278 Ga. 397, 400 (2) (d) (603 SE2d 228)
(2004) (“Trial counsel cannot be held ineffective for failing to track
down a witness whose whereabouts are unknown.” (citation and
punctuation omitted)).
(b) Appellant contends that trial counsel was ineffective for
failing to raise a hearsay objection when Detective Jameel Gulley,
who investigated the crimes, testified about what Senior and Carter
had told him, and when Senior testified about statements made by
Offord. We conclude, however, that trial counsel’s failure to object
was not deficient performance.
During Detective Gulley’s trial testimony, the prosecutor asked
him what Senior had told him, and Detective Gulley responded,
29
“Well, he basically just said his son had something to do with it.”
Later, the prosecutor asked Detective Gulley whether Carter gave
the detective “any details about [the robbery] incident.” The
detective responded that Carter said “James Hawkins[ ] had been
telling people to look out” because there were “two guys out [t]here
posted up with masks over their face,” and that Carter did not “think
that was strange . . . [b]ecause all kind[s] of people [were] out [t]here
doing whatever.” Detective Gulley then recounted Carter’s story
about being approached by two men, asked for a cigarette, and
running away when one of the men pulled a gun out. Further, when
Senior was on the stand, the prosecutor asked him what he had
talked to an officer about, and Senior responded, “So I told him, my
son say that he brought them guys back over here, you know,
without me knowing.” Trial counsel did not object on hearsay
grounds to any of this testimony.
Here, Appellant has not shown that trial counsel was deficient
for failing to raise hearsay objections to the above testimony because
the hearsay testimony “was cumulative of earlier unchallenged
30
testimony.” Pierce, 319 Ga. at 867 (11) (b). Specifically, when
Detective Gulley testified that Senior told him Offord had something
to do with the shooting, Offord had already testified about his own
involvement in the shooting. The relevant aspects of Detective
Gulley’s description of Carter’s police statement simply recounted
details from Carter’s prior testimony about how the robbery
unfolded. And Senior testified that Offord told him Offord had
brought the guys back to the motel only after both Offord and
Mahoney had taken the stand and testified that Offord had driven
Appellant and Mahoney back to the motel on the night of the
shooting. Accordingly, this claim fails.
(c) Although Appellant contends that trial counsel was
deficient for failing to request an alibi instruction, we disagree that
counsel’s performance was deficient. As noted above Appellant
testified at trial that, on the night of the shooting, he was in another
neighborhood that he frequented, where he “smok[ed] weed” and
“kick[ed] it” with some “guys” and “might” have also gone to the
house of “[a] girl name[d] Tree” for part or all of the night. At the
31
motion-for-new-trial hearing, trial counsel did not provide a
strategic reason for why he failed to request an alibi instruction after
Appellant, who had initially chosen not to testify, changed his mind,
took the stand, and testified about a woman named “Tree.” But trial
counsel testified that, when preparing for trial, he had considered
presenting an alibi defense and decided against doing so because he
had “no . . . identifying information other than a nickname,”
While Appellant’s trial testimony provided slight evidence
supporting an alibi charge, failure to pursue an alibi defense was
not “objectively unreasonable” trial strategy. Pierce, 319 Ga. at 865
(11) (citation and punctuation omitted). Appellant’s testimony —
that, when the crimes occurred, he was in another neighborhood
where he spent time with some unidentified men and “might” have
also spent time with a woman identified only by a nickname — was
self-serving, vague, and equivocal. There was no evidence
substantiating his testimony. And as outlined above, the State
introduced substantial evidence detailing Appellant’s participation
in the crimes. As a result — and as trial counsel correctly predicted
32
when preparing for trial — it would have been difficult for trial
counsel to credibly argue to the jury that Appellant could not have
committed the crimes because he was with someone else in another
neighborhood when the crimes occurred. Because an alibi defense
would have been weak, we cannot say that “no reasonable lawyer”
would have forgone an alibi defense. Id. (citation and punctuation
omitted). See Moore, 278 Ga. at 400 (2) (c) (holding that “failure to
request a jury charge on alibi” was not deficient performance where
“the only evidence of alibi was a statement attributed to [the
defendant]” that trial counsel did not view as “sufficient to support
an alibi defense”); Harris v. State, 280 Ga. 372, 375 (3) (627 SE2d
562) (2006) (no deficient performance in failing to present an alibi
defense where counsel did not believe there was credible alibi
evidence). Accordingly, this claim fails.
(d) Appellant argues that trial counsel was deficient for failing
to object when, in response to Appellant’s testimony about possibly
being with a girl named “Tree” at the time of the shooting, the
prosecutor asked Appellant if “Tree [was] in the courtroom” and
33
“[w]here is she at?” According to Appellant, these questions were
objectionable because they impermissibly shifted the burden to
Appellant to produce evidence to disprove his guilt.
Assuming without deciding that trial counsel’s failure to object
to these questions constituted deficient performance, we conclude
that Appellant has not shown prejudice. At worst, the prosecutor’s
questions shifted the burden to Appellant to prove a defense of alibi
that, as discussed above, had no reasonable chance of success and
was not pursued by defense counsel at trial. And the trial court
mitigated any potential harm from the prosecutor’s questions by
properly instructing the jury on the burden of proof. See Davis v.
State, 294 Ga. 486, 488 (3) (b) (754 SE2d 67) (2014) (“Qualified jurors
under oath are presumed to follow the instructions of the trial
court.” (citation and punctuation omitted)). Further, the trial
evidence — which included not only detailed testimony about
Appellant’s participation in the crimes from two coconspirators, but
also testimony from several eyewitnesses to the crimes, surveillance
footage, and damaging testimony from Appellant himself — strongly
34
supported the jury’s guilty verdicts. Accordingly, Appellant has not
shown “a reasonable probability” that, but for counsel’s failure to
object to the prosecutor’s two questions about the purported alibi’s
whereabouts, “the result of the trial would have been different.”
Zayas, 319 Ga. at 409 (3) (citation and punctuation omitted).
(e) Appellant argues that trial counsel was deficient for failing
to object when the medical examiner, who was not a ballistics expert,
testified about the size of bullets recovered from Hawkins’s body. We
disagree.
At trial, the medical examiner testified that she recovered
three “deformed” bullets from Hawkins’s body, two of which were
“jacketed” and the third of which was “just a core.” When asked how
she would describe the bullets, the medical examiner responded that
she was “not a ballistic[s] expert,” but that she categorized bullets
as “small, medium, [or] large” in size. She further testified that the
jacketed bullets were “medium caliber projectiles . . . , which could
range from .32 to .38, 9 mil, somewhere in that range,” and that the
core she recovered “was consistent with being the same as the
35
[other] ones . . . , but [she] couldn’t say 100 percent.” In addition, the
medical examiner testified about the trajectory of the bullets, saying
that they traveled “slightly back to front,” “coming in . . . more
towards the back and . . . ending up more towards the front.” And
she testified about the distance from which Hawkins was shot,
saying that, based on the absence of “soot,” “searing,” and
“stippling,” he was shot from at least two-and-a-half feet away.
Appellant has not shown deficient performance on this basis.
Although the medical examiner said that she was not a ballistics
expert, she demonstrated that she had experience dealing with
certain ballistics issues, including range of fire, bullet trajectories
through the body, and rough classifications of bullet size. And she
was careful not to exceed the bounds of her expertise, saying only
that the bullets appeared to fall within the medium size range
without specifically identifying the calibers of the bullets she
recovered. Thus, a reasonable attorney could have concluded that
the medical examiner’s careful and limited testimony about the size
of the bullets fell within the scope of her expertise, and therefore
36
that an objection to her testimony would not have succeeded. See
Johnson v. State, 296 Ga. 504, 506 (2) (769 SE2d 87) (2015) (medical
examiner’s opinion testimony about “why the autopsy did not reveal
any bullet fragments in the wound” did not go beyond her expertise
because she “demonstrated that she was experienced in dealing with
certain ballistics issues related to, among other things, range of fire,
soot, stippling, and the trajectory of a bullet through a body”). And
as a result, Appellant has not shown that “no reasonable lawyer”
would have forgone an objection to the medical examiner’s
testimony. See Pierce, 319 Ga. at 865 (11) (citation and punctuation
omitted).
(f) Appellant next argues that trial counsel was ineffective for
failing to object to certain statements made by the prosecutor during
closing arguments, which Appellant argues shifted the burden of
proof, mischaracterized the proof-beyond-a-reasonable-doubt
standard, and improperly advised the jury about which witnesses
the prosecutor found credible. As explained below, these claims fail.
i. As relevant to Appellant’s contention that the
37
prosecutor shifted the burden of proof and mischaracterized the
burden of proof, the prosecutor began his closing argument by
explaining that the State had “the burden of proof,” whereas a
defendant “doesn’t have a burden” and does not “have to prove
anything.” The prosecutor continued:
Now, that’s important, because essentially, that means
that the [d]efense can say whatever they want to, because
they don’t have to prove anything. They can throw
anything they want at you, make any kind of bogus
assertions and things like that, and they don’t actually
have to prove that, which is kind of nice. And, you know,
I’m kind of jealous sometimes that they don’t have to
prove what they say. But, you know, that’s the way the
system works.
(Emphasis supplied.) The prosecutor then stated that “what the
[d]efense argues and what they give you in the closing argument
isn’t actually evidence, . . . it’s just argument,” so the jurors had to
“listen to the evidence” and apply their “common sense.” And the
prosecutor further told the jury,
[W]hen we tell you . . . that we have to prove this beyond a
reasonable doubt, what that really means is do you believe
it or not; right? Because if you have reasonable doubt, you
don’t believe it. Does that make sense? . . . Reasonable
doubt is your common sense saying, I believe this
38
happened. . . . [A]nd you don’t want to look for doubt. If
you’re sitting there saying, “Well, I think he did it, but I
don’t think they proved it enough[,]” . . . that’s looking for
doubt. Because if you think someone did something, you
don’t have reasonable doubt. If you have reasonable doubt,
you don’t think somebody did something. It’s that simple.
(Emphasis supplied.)
Then, in rebuttal closing, the prosecutor addressed the burden
of proof again, saying:
Now, the Judge is going to tell you what reasonable doubt
is. . . . Again, it’s a doubt for which you can give a real
reason based on evidence or lack of evidence. It’s the
doubt of an honest impartial juror seeking the truth. It is
a doubt which should be based on common sense and a
reason.
At the conclusion of the case, the trial court instructed the jury
on the presumption of innocence, the burden of proof, reasonable
doubt, and grave suspicion. The court also charged the jury that it
was the court’s duty to determine the law, that the jury was bound
by the court’s instructions, and that attorney arguments were not
evidence.
On appeal, Appellant contends that trial counsel was deficient
for failing to object to the prosecutor’s statement that the “[d]efense
39
can say whatever they want to, because they don’t have to prove
anything.” According to Appellant, this comment shifted the burden
to Appellant to prove his innocence. We conclude, however, that the
comment did no such thing, as the prosecutor specifically told the
jury that the defendants “don’t have to prove anything,” not that the
defendant had to prove his innocence. Moreover, reading the
comment in context, it is clear that the prosecutor was saying that
Appellant did not have to prove his innocence because the prosecutor
made comments shortly before and after this comment that
emphasized the same point. Specifically, the prosecutor told the jury
that the State had “the burden of proof,” that the defendant “doesn’t
have a burden,” that the defendant does not “have to prove
anything,” and that, although the burden being on the State
disadvantaged the State, that was just “the way the system works.”
“[T]rial counsel’s failure to make a meritless objection” was not
deficient performance. Gaston v. State, 307 Ga. 634, 640 (2) (b) (837
SE2d 808) (2020) (citation and punctuation omitted).
Appellant also argues that trial counsel should have objected
40
when the prosecution mischaracterized the burden of proof,
equating proof beyond a reasonable doubt with a “belief” that
Appellant committed the crimes. We agree that the State improperly
equated proof beyond a reasonable doubt with mere belief in this one
instance by stating that the standard was whether jurors
“believe[d]” or “th[ought] someone did something.” See, e.g., Ward v.
State, 271 Ga. 62, 64 (2) (515 SE2d 392) (1999) (the trial court
improperly lowered the standard of proof by stating that proof
beyond a reasonable doubt was equivalent to an “honest belief” in
the defendant’s guilt). But even assuming that trial counsel
provided constitutionally ineffective assistance in failing to object to
the State brief mischaracterization of the proof-beyond-areasonable-doubt standard, we conclude that Appellant has not
shown prejudice. Although the prosecutor’s remark misstated the
law, the prosecutor later gave a correct description of reasonable
doubt that mirrored the pattern jury charge. And the court also
charged the jury on the burden of proof, the court’s duty to instruct
the jury on the law, the jury’s duty to follow the court’s instructions,
41
and the fact that closing arguments were not evidence. Moreover, as
discussed above, the evidence of Appellant’s guilt was strong. See,
e.g., Jackson v. State, 319 Ga. 51, 54-55 (2) (901 SE2d 552) (2024)
(no prejudice from the prosecutor’s statement that the jurors could
find the defendant guilty beyond a reasonable doubt if they
“believed” the defendant was guilty in their “hearts” and “minds”
because there was “significant proof” of the defendant’s guilt, the
prosecutor “accurately explained” the burden of proof elsewhere in
closing arguments, and the trial court later corrected the
prosecutor’s mischaracterization by properly instructing the jury on
the burden of proof and clarifying that the jury was bound by the
court’s instructions on the law and that closing arguments were not
evidence (punctuation omitted)). Accordingly, Appellant has not
shown “a reasonable probability” that, but for trial counsel’s failure
to object to the prosecutor’s brief-but-erroneous description of the
law on reasonable doubt, “the result of the trial would have been
different.” Zayas, 319 Ga. at 409 (3) (citation and punctuation
omitted).
42
ii. Appellant argues that trial counsel should have
objected when, according to Appellant, the prosecutor told the jury
during closing arguments that he believed several witnesses were
telling the truth. As relevant here, the prosecutor made several
comments in closing arguments about which witnesses were
credible, saying:
Carter’s testimony was credible. You can believe
him. Because . . . [h]e has no reason to lie [about
Appellant]. He has nothing to gain from this. . . . And you
see the video . . . corroborate [his testimony].
[Offord] wasn’t there, but he testified – oh, he was the best
– he was one of the most credible ones; wasn’t he? . . .
There’s no “ums[,”] there’s no thinking about it, nothing
like that. He responds instantly. Looks us in the eye. He
was telling the truth.
“Offord, I think, was one of the most credible people –
they’re all [referring to Offord and Mahoney] credible, I
think, because they have nothing to lose. They’re not
going home or anything. They came in here in jumpsuits
and shackles and said, “After this, I’m going back to
prison.” They’re not going to walk out after this . . .
because of what they said. They testified that they were
told to tell the truth. They weren’t told what to say. They
were told to tell the truth and they did.
[I]f you have two possible solutions, one being there’s a
conspiracy [between several witnesses] . . . to frame
43
[Appellant] . . . [o]r they’re all telling the truth that he
shot James Hawkins[,] . . . [w]hich one makes more
sense?
(Emphasis supplied.)
Trial counsel was not deficient for failing to object to most of
the prosecutor’s remarks about witnesses’ credibility because they
were not comments about the prosecutor’s personal beliefs but
rather arguments about “reasonable inferences” the jury could draw
about “the credibility of witnesses” “from the evidence,” including
from the witnesses’ demeanor while testifying. Jackson v. State, 301
Ga. 774, 775-776 (3) (804 SE2d 73) (2017) (citation and punctuation
omitted); Mason v. State, 274 Ga. 79, 79-80 (2) (b) & n.2 (548 SE2d
298) (2001) (holding that the prosecutor’s statement about a
witness’s credibility in closing argument — “[h]e’s telling you the
truth[,] [h]e’s telling you the honest truth” — was “the conclusion
the prosecutor wished the jury to draw from the evidence, and not a
statement of the prosecutor’s personal belief as to the veracity of a
witness”). See also Stephens v. State, 307 Ga. 731, 736-737 (2) (838
SE2d 275) (2020) (holding that counsel was not deficient for failing
44
to object to a prosecutor’s comments about witnesses’ credibility
because the “comments were based on inferences from the evidence,”
and were not expressions of her “personal beliefs”). Cf. Cook v. State,
255 Ga. 565, 575 (12) (b) (340 SE2d 843) (1986) (holding that a
prosecutor may argue in closing argument that “the jury [should]
draw [particular] inferences from its observation of the demeanor of
the witnesses,” and that doing so does not “ask[ ] the jury to consider
facts not in evidence”).
We conclude, however, that trial counsel had reasonable
grounds for objecting to one of the prosecutor’s comments about
witness credibility, namely, the prosecutor’s comment that “I think”
Mahoney and Offord were credible witnesses. See Bell v. State, 294
Ga. 443, 445 (2) (754 SE2d 327) (2014) (“It is well-settled that a
prosecutor may not express to [the] jury his or her personal belief
about the veracity of a witness.”). But even assuming trial counsel’s
failure to object to that comment was objectively unreasonable and
therefore constituted deficient performance, Appellant has not
shown prejudice. Not only was the evidence against Appellant
45
strong, as noted above, but the court also mitigated any potential
prejudice from the prosecutor’s brief remark by properly instructing
the jury after closing arguments that credibility issues were for the
jury to decide and that attorney arguments were not evidence. See
id. at 445-446 (2) (no prejudice from trial counsel’s failure to object
to a prosecutor’s question that had the effect of “vouching” for a
witness’s credibility because there was “substantial evidence” of the
defendant’s guilt, and the court properly instructed the jury “that
the credibility of the witnesses was for them to determine . . . , and
that the evidence in the case does not include the opening
statements or closing arguments by the attorneys or the questions
asked by the attorneys”). See also Lane v. State, 312 Ga. 619, 624-625 (2) (b) (864 SE2d 34) (2021) (no prejudice from trial counsel’s
failure to object when the prosecutor improperly bolstered a
witness’s credibility in closing argument because “the State
present[ed] substantial evidence of [the defendant’s] guilt, [and] the
trial court also instructed the jury that closing arguments were not
evidence”).
46
(g) Appellant argues that “at no point in time did defense
counsel move for a directed verdict on” the count charging Appellant
with conspiracy to commit armed robbery. And he argues that trial
counsel was ineffective for failing to argue, in support of a motion
for a directed verdict on the conspiracy count, that there was no trial
evidence showing that any of the alleged coconspirators shot
Hawkins with the intent to rob him.
By way of background, Count 1 of the indictment charged
Appellant, Mahoney, and Offord with conspiracy to commit armed
robbery and alleged that they committed several “overt acts to effect
the object of the conspiracy.” These alleged overt acts included
Appellant, Mahoney, and Offord meeting at the motel to plan an
armed robbery, Offord giving Mahoney a gun, Offord providing
transportation to Appellant and Mahoney, Appellant and Mahoney
thereafter traveling on foot to the motel, Appellant and Mahoney
“assault[ing] and shoot[ing] James Hawkins[ ] with the intent to rob
him,” and Appellant, Mahoney, and Offord fleeing the scene in
Offord’s vehicle.
47
Here, Appellant has failed to show deficient performance.
Contrary to Appellant’s argument, trial counsel did move for a
directed verdict on Count 1, and he made several arguments in
support of that motion. And even assuming that the scope of trial
counsel’s motion for a directed verdict on Count 1 did not encompass
the specific argument that there was insufficient evidence showing
that Appellant and Mahoney shot Hawkins with the intent to rob
him, failure to raise such an argument was not ineffective
assistance. This is because, to prove the conspiracy charge, the State
needed to show only that Appellant conspired with at least one other
person to commit an armed robbery and that at least one member of
the conspiracy engaged in an overt act to effect the object of the
conspiracy. See Wilson v. State, 315 Ga. 728, 731 (2) (883 SE2d 802)
(2023) (citing OCGA § 16-4-8). And the evidence described above was
more than sufficient to show both that Appellant planned with
Mahoney and Offord to commit an armed robbery at the motel, and
that they engaged in several overt acts, including obtaining guns
and traveling to the motel. Thus, a motion for a directed verdict on
48
this ground would have been meritless. See Williams v. State, 315
Ga. 797, 806 (2) (884 SE2d 877) (2023) (holding that failure to file a
“meritless” motion for a directed verdict was not deficient
performance).
6. Finally, Appellant argues that he suffered cumulative
prejudice from the enumerated trial-court errors and instances of
ineffective assistance of counsel. We disagree.
“[W]e must consider collectively the prejudicial effect, if any, of
trial court errors, along with the prejudice caused by any deficient
performance of counsel.” Blocker v. State, 316 Ga. 568, 583 (5) (889
SE2d 824) (2023) (citation and punctuation omitted). Establishing
cumulative error requires a defendant to show that
(1) at least two errors were committed in the course of the
trial; and (2) considered together along with the entire
record, the multiple errors so infected the jury’s
deliberation that they denied the defendant a
fundamentally fair trial.
Beard v. State, 317 Ga. 842, 852 (5) (896 SE2d 497) (2023) (citation
and punctuation omitted).
Here, we assumed one trial-court error (the trial court’s abuse
49
of discretion in allowing the State to cross-examine Appellant about
his criminal history) and three instances of deficient performance
(trial counsel’s failure to object when the prosecutor asked Appellant
about the whereabouts of his purported alibi, when the prosecutor
equated proof beyond a reasonable doubt with mere belief in closing
argument, and when the prosecutor said in closing argument that
he thought two witnesses were credible). “[A]ssuming without
deciding that [these types of] error c[an] be aggregated for
cumulative-error review,” we conclude that these errors were
harmless, even when considered together. Jackson v. State, 317 Ga.
95, 107 (4) (891 SE2d 866) (2023). As explained above, Appellant’s
cross-examination about his criminal history had little, if any,
prejudicial effect when considered in the context of his testimony as
a whole. The prosecutor’s questions about Appellant’s purported
alibi were relevant only to a weak alibi defense that defense counsel
did not even pursue at trial. And the trial court’s jury instructions
mitigated any potential prejudice that might have otherwise
resulted from the prosecutor’s improper closing remarks about the
50
burden of proof and witnesses’ credibility. Given that the assumed
trial-court error and assumed instances of deficient performance
resulted in, at most, minor prejudice to Appellant, and given that
the trial evidence strongly supported the jury’s guilty verdicts,
Appellant has not established cumulative prejudice warranting a
new trial.
Judgment affirmed. All the Justices concur.
51