In the Supreme Court of Georgia
Decided: November 2, 2021
S21A0767. STAFFORD v. THE STATE.
LAGRUA, Justice.
Appellant Lil’Che Stafford was found guilty by a Fulton County
jury of felony murder and first-degree burglary in connection with
the death of Jose Greer.1 On appeal, Appellant raises four
enumerations of error: (1) evidence of an earlier burglary and armed
robbery was improperly admitted; (2) a testifying detective
1 The crimes occurred on December 8, 2015. On March 20, 2018, a Fulton County grand jury indicted Appellant, Fredrick Clark, Vas Coleman, Maxx Pritchett, and Mark Spencer for felony murder and burglary in the first degree. Prior to trial, Appellant’s and Spencer’s trial was severed from their codefendants’ trial. At a joint trial with Spencer from September 24 to October 2, 2018, a jury found Appellant guilty of all counts. The trial court then sentenced Appellant to serve life in prison for felony murder. The trial court merged the burglary count with the felony murder count. Appellant timely filed a motion for new trial on October 24, 2018, which he amended four times. Following hearings, the trial court denied Appellant’s amended motion for new trial on December 3, 2020. Appellant filed a timely notice of appeal on December 8, 2020, and his case was docketed to this Court’s April 2021 term. Appellant’s case was orally argued on June 9, 2021.
inappropriately opined that Appellant was involved in an additional
prior robbery; (3) trial counsel was ineffective for failing to request
a jury instruction on intervening or unforeseen cause of death; and
(4) the detective’s testimony regarding the custodial statements of a
co-conspirator was improperly admitted because it was inadmissible
hearsay and trial counsel was ineffective for failing to object to its
admission based on the Confrontation Clause. We conclude that
there was no reversible error, so we affirm.
1. The evidence concerning the crimes came largely from codefendant Frederick Clark, who was offered use immunity for his
testimony. Clark testified as follows: On December 8, 2015,
Appellant met with Clark and co-defendants Mark Spencer, Maxx
Pritchett, and Vas Coleman at a house on Mitchell Street in Atlanta.
After discussing that they needed money, the group decided to rob
the home of a drug dealer they knew as “Cash.” Clark drove the men
to Sky Lofts Condominiums, where they thought Cash lived. Upon
their arrival, Spencer checked the front entryway of the
condominium complex for cameras and returned to Clark’s car.
2
Appellant, Clark, and Spencer then entered the condominium
complex while Coleman and Pritchett remained in the car.
Clark rang the doorbell of a third-floor unit where they
believed Cash was residing, while Appellant and Spencer hid out of
view. When nobody answered, Clark began using a screwdriver to
open the door, and Appellant and Spencer joined him in attempting
to break down the door. After seeing someone down the hall, Clark
and Appellant began to flee, but Spencer stopped Clark and
convinced him to continue trying to get into the unit. Appellant
returned to the door to see why Clark and Spencer stopped following
him, then stayed. The three men took turns trying to open the door
with the screwdriver, and eventually Appellant and Spencer broke
the door open together with their forearms. Once inside the unit,
the three men stole an iPhone, iPad, laptop computer, and some
hats — all of which were placed in a backpack that Spencer was
carrying. Appellant also took a jar full of coins. While in the unit,
Spencer remarked to Clark that he noticed an ambulance and police
in the vicinity, which prompted the three men to leave through a
3
back stairway of the condominium complex. When they got outside,
they passed “a guy on the ground.” Clark testified that Spencer
asked the man if he needed help, but when he received no response,
they continued to flee by jumping over a gate. Clark also testified
“the coins dropped” as the three jumped over the complex gate to
escape.
Unbeknownst to the men, Cash did not live in this unit, but the
victim, Greer, did. When Greer heard the commotion at his door, he
called 911 to report that his unit was being broken into; he also told
911 that he had fled to his balcony to escape the perpetrators and
that he might try to jump off the balcony to get to safety. Ultimately,
Greer fell 30 feet to the ground.
A surveillance video recording from the condominium complex
showed three men entering the complex through a doorway.
Another camera recorded the same three men running down a
stairwell and exiting through a different doorway.
William Gadsden, a resident at the condominium complex, saw
three men running down the back stairwell of the complex. Gadsden
4
noticed that the men were in their late teens or early twenties,
wearing dark clothes, and one was carrying a backpack. After
exiting the door of the building, the men climbed over the fence
surrounding the complex and fled towards a nearby CVS Pharmacy.
The police arrived at the scene about two minutes after Greer
called 911 and moments after Gadsden saw the three men running
down the stairwell. The responding officer found Greer lying on the
sidewalk, and Greer was able to tell her that he was trying to escape
the burglars by climbing to the balcony below, but he slipped and
fell. The police found an abandoned jar of coins containing Greer’s
business card on the sidewalk nearby and found Greer’s unit
ransacked. Greer was transported to the hospital, where he later
died. The medical examiner testified that Greer died from blunt
force trauma and classified the manner of death as a homicide.
Clark testified that after jumping over the fence, he and
Spencer went in one direction and Appellant went in an opposite
direction. Spencer and Clark shed their outer clothing, placed the
clothes in the backpack, and disposed of the backpack in an
5
alleyway. They then walked to a nearby Krispy Kreme, where they
called an Uber to take them back to the Mitchell Street house. Video
surveillance recordings from the Krispy Kreme, recorded about six
minutes after Greer’s 911 call was placed, showed two men in the
store wearing pants that matched those worn by two of the men in
the condominium complex surveillance video. According to Clark,
after returning to the Mitchell Street house in the Uber, Spencer
called Korey Bryant to get a ride back to the alleyway to retrieve the
backpack.
Bryant, who was friends with Appellant and his co-defendants,
testified that Spencer called him to give Spencer a ride. He picked
up Clark and Spencer from the Mitchell Street house on the day of
Greer’s homicide. As they were leaving the house, they saw
Appellant walking towards them. Appellant got into Bryant’s car,
and Bryant took all three men back towards the area of the crime
scene. Spencer directed Bryant to park by a building about a block
away from the Sky Lofts Condominiums. Appellant, Clark, and
Spencer left the car for a few minutes and returned with a backpack.
6
Bryant then took them back to the Mitchell Street house.
Cell site tower location information for Clark, Coleman,
Pritchett, and Spencer placed their cell phones in the area of the
Mitchell Street house before the burglary, in the area of the Sky
Lofts Condominiums around the time of the burglary, and back in
the area of the Mitchell Street house after the burglary. As
Appellant did not have a cell phone, there were no cell phone records
available for him.
Javon Farquharson, who regularly bought and resold
electronics, testified that on the day after the burglary, Appellant
and Coleman tried to sell him an iPad and iPhone. They also showed
Farquharson a wallet containing an ID card and a red debit or credit
card. Farquharson heard Appellant mention that the group “hit a
little lick last night” and “I stepped over this dude when I was
leaving.” Farquharson opted not to purchase the electronics from
Appellant and Coleman because he was a convicted felon and he did
not “want to get caught up with no dealing in stolen property.”
Appellant later mentioned that he used the stolen card at a
7
McDonald’s restaurant. 2 Later that night, Farquharson saw a news
report of Greer’s death and recognized Greer’s name from the ID and
credit card.
Alani Bellinger, Farquharson’s girlfriend, was present when
Appellant and Coleman brought the wallet and electronics to
Farquharson. Bellinger testified that she could see the face on the
ID card in the wallet, and she saw the same face in a news report
about Greer’s death later that night. She subsequently called a
police tip line to report this information.
In addition to the information from the tip line, the police
determined from an interview with Farquharson that Appellant and
Coleman later sold the stolen electronics at a particular computer
store, and Greer’s laptop and iPhone were later recovered from that
store.3 Based on this information, arrest warrants were issued for
2 Bank statements reflect Greer’s stolen card was used at a McDonald’s restaurant on the day after the burglary, and a video surveillance recording from the McDonald’s shows an individual resembling Appellant in the restaurant at the time the card was used.
3 Clark testified that he drove Appellant, Spencer, and Coleman to the
computer store, where they received about $60 for the items, and Appellant and Spencer divided the proceeds between themselves.
8
Appellant and Spencer. After a review of Appellant’s social media
accounts, the police determined that Appellant was flying from
Denver to Atlanta. Appellant was arrested at the Denver airport on
January 13, 2016. Spencer turned himself in at a police station in
Washington, D.C.
At some point during the investigation, Clark sought to provide
the police with information about the crimes. Clark admitted that
he purchased a plane ticket for Appellant to Denver and a bus and
plane ticket for Spencer. Based on other information he provided,
an arrest warrant was also issued for Coleman. Coleman was
arrested in Alabama in February 2016 and was transported to
Atlanta, where he was interviewed by the police.
2. Appellant contends that the trial court abused its discretion
when it admitted evidence of prior crimes under OCGA § 24-4-404
(b) (“Rule 404 (b)”). We conclude that any such abuse of discretion
was harmless error.
Rule 404 (b) provides, in relevant part:
Evidence of other crimes, wrongs, or acts shall not be
9
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, including, but not limited
to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
Prior to trial, the State filed a timely notice of intent to
introduce, under Rule 404 (b), other-acts evidence of a burglary and
armed robbery in which Appellant allegedly participated in October
2015 (hereinafter referred to as “the October 2015 incident”).
Following a hearing, the trial court ruled, over Appellant’s objection,
that evidence of the October 2015 incident was admissible under
Rule 404 (b) to show intent, plan, and identity.
(a) The Evidence Admitted Under Rule 404 (b)
During trial, the State presented evidence of the October 2015
incident through the testimony of Clark; two Georgia State
University students, James Shimkus and Preston Baldwin; and
Detective Vincent Velasquez. The trial court instructed the jury
that the evidence about the October 2015 incident was being offered
for the limited purposes of proving intent, plan, and identity. The
court also instructed the jury that it was not authorized to “infer
10
from such evidence that [Appellant is] of a character that would
commit such crimes.” 4
The evidence presented by the State under Rule 404 (b)
included the following. Shimkus, who is white, testified that in the
“middle of October in 2015,” he was a student at Georgia State and
was rooming with Baldwin, who is black and played football at
Georgia State, at the City Walk Apartments. Shimkus also testified
that he was dealing drugs during this time. According to Shimkus,
in October 2015, Shimkus heard a knock at the door, looked through
the peephole, and saw a man standing outside his apartment.
Shimkus opened the door and six men, including the man outside
the door, rushed into the apartment holding guns and wearing
masks. Shimkus and Baldwin testified that the men robbed them
of money, drugs, 5 and video game consoles, struck them, and left the
4 The trial court gave this limiting instruction three times: once before Clark’s testimony; a second time before Shimkus’s testimony, stating that the instruction applied to both Shimkus and Baldwin; and a third time in the final jury charge.
5 Shimkus testified that the burglars took marijuana, mushrooms, and
ecstasy.
11
apartment. Shimkus and Baldwin could not identify any of the men
who robbed them and did not report the incident to police.
Clark testified that in the fall of 2015, he visited the Mitchell
Street house, where Appellant, Spencer, Pritchett, and Coleman
were hanging out. Inside the room where they were gathered, Clark
saw mushrooms, marijuana, LSD, and money. The group, including
Appellant, stated that they had stolen the drugs and money from
two Georgia State students. Clark was told that the students lived
at the City Walk Apartments, which was housing for students of
Georgia State University; one of the students was black, and one
was white; the black student was a Georgia State football player
that Clark identified as “Princeton” 6; and the white student was a
drug dealer. The group also told Clark that they “beat one of the
guys up” before leaving with the drugs and money.
The State also presented the testimony of Detective Velasquez,
who testified about statements Clark made to him in January 2016
6 During trial, Detective Velasquez testified that “Princeton” was a nickname for Preston Baldwin.
12
when Clark met with him to provide more information about Greer’s
death. Detective Velasquez testified that during this interview,
Clark told him that Appellant and his co-defendants committed an
armed robbery in the fall of 2015 of a “white guy named . . . James”
who “had a black roommate” that Clark believed was named
“Princeton.” Detective Velasquez then sought out Shimkus and
Baldwin, who spoke to him about the details of the October 2015
incident, which closely mirrored the testimony they gave at trial.7
(b) Harmless Error Analysis
Assuming, without deciding, that the trial court abused its
discretion in admitting the evidence of the October 2015 incident,
we conclude that any such error was harmless and thus does not
merit reversal.
For a nonconstitutional ruling . . . , the test for
determining harmless error is whether it is highly
probable that the error did not contribute to the verdict.
In conducting that analysis, we review the record de novo
and weigh the evidence as we would expect reasonable
7 Appellant also argues that this evidence from Clark and Detective Velasquez was inadmissible hearsay. Because we assume that the evidence was inadmissible under Rule 404 (b), we need not decide whether it was also inadmissible hearsay.
13
jurors to have done.
Allen v. State, 310 Ga. 411, 415 (2) (851 SE2d 541) (2020).
The evidence tying Appellant to the October 2015 incident was
not especially prejudicial. Shimkus and Baldwin could not identify
their assailants. The only evidence actually connecting Appellant to
the October 2015 incident was Clark’s testimony, which was merely
a retelling of what he heard from the group at the Mitchell Street
house, and Detective Velasquez’s testimony, which was a retelling
of Clark’s story. If the jury found Clark credible, he gave a detailed
account of Appellant’s involvement in the charged crimes, so his
second-hand account of the October 2015 incident would be unlikely
to affect the jury’s guilty verdicts. And if the jury discredited Clark,
it would have discredited his claim that Appellant was involved in
the October 2015 incident. Further, the State did not mention the
October 2015 incident in either its opening statement or closing
argument. See Taylor v. State, 306 Ga. 277, 283 (2) (830 SE2d 90)
(2019) (any error in admission of other-acts evidence was harmless
in part because there was no contention that the State mentioned or
14
relied upon the evidence in closing argument).
And, the other evidence against Appellant was strong. Clark
testified that he, Appellant, and others planned the charged
burglary; that he, Appellant, and Spencer physically broke down the
door to enter Greer’s unit and stole an iPhone, laptop, and other
items while inside, which they put inside a backpack that Spencer
was wearing; and that they passed Greer lying on the ground as they
fled. Bryant testified that he drove Appellant, along with Clark and
Spencer, to retrieve the backpack. Farquharson and Bellinger saw
Appellant the next day with Greer’s driver’s license and his debit or
credit card. Appellant told Farquharson that his group “hit a little
lick last night,” and “I stepped over this dude when I was leaving.”
Appellant also attempted to sell Farquharson an iPad and iPhone.
Appellant later told Farquharson that the electronics were sold at a
particular computer store, and Greer’s electronics were later
recovered from the same computer store. Appellant also admitted
to Farquharson that he used Greer’s card at a McDonald’s
restaurant; Greer’s bank statement confirms the card was used at a
15
McDonald’s restaurant that day, and surveillance video from that
McDonald’s restaurant at that time shows a man resembling
Appellant.
Given the limited prejudicial effect of the admission of the
October 2015 incident and the strength of the other evidence of
Appellant’s guilt, we conclude that it is highly probable that any
error in admitting evidence of the October 2015 incident did not
contribute to the verdicts. See Allen, 310 Ga. at 415 (2) (error in
admitting a prior robbery was harmless due to strong evidence
against the defendant). Accordingly, this enumeration fails.
3. In a related enumeration, Appellant contends that his trial
counsel rendered ineffective assistance by failing to object to part of
Detective Velasquez’s testimony regarding an armed robbery
“separate from the violent crimes that the trial court already
admitted into evidence pursuant to [Rule 404 (b)].” Alternatively,
Appellant contends that the trial court erred in admitting Detective
Velasquez’s testimony regarding this separate incident.
After a review of the relevant testimony, we conclude this
16
enumeration of error is based on an inaccurate reading of the
transcript. The relevant trial testimony was as follows: When Clark
met with Detective Velasquez, Clark said that Pritchett, Coleman,
Spencer, Appellant, and one other friend committed a robbery at
City Walk Apartments of a white male named James and his black
roommate named “Princeton,” both of whom were students at
Georgia State University.
Detective Velasquez entered this information into the police
data system to find matching incidents, and found a robbery that
occurred on April 28, 2015, at the City Walk Apartments involving
a victim by the name of James Shimkus (“the April 2015 incident”).
The police report from the April 2015 incident led Detective
Velasquez to find and interview Shimkus, who said that he had been
robbed another time in a separate incident in the fall of 2015. 8
Shimkus’s description of the October 2015 incident matched
the details of the robbery that Clark described to Detective
8 As discussed above in Division (2) (a), Shimkus testified at trial that he was robbed in the “middle of October in 2015.” Thus, the record indicates that this separate robbery was the October 2015 incident.
17
Velasquez. Detective Velasquez testified that, during his interview
with Shimkus, Shimkus admitted he was a drug dealer and
explained that he was living with a roommate named Preston
Baldwin at City Walk Apartments. Shimkus said that he and
Baldwin were robbed by six black males, who entered their
apartment armed with guns and forced them to the ground. The
robbers forced Shimkus to open a safe and stole drugs and money.
Neither victim reported this October 2015 incident to the police. The
prosecutor then asked Detective Velasquez about what he was able
to conclude based on this information, to which Detective Velasquez
responded, “I was reasonably sure that this crew was involved in
that particular robbery as well.” Appellant raised no objection to
this testimony at trial. However, he now contends that either trial
counsel was ineffective for failing to object or the trial court abused
its discretion when it admitted Detective Velasquez’s comment that
he was “reasonably sure” that Appellant was involved in the April
2015 incident because that testimony amounted to inadmissible
character evidence about an additional prior crime. Both of these
18
claims fail.
(a) To prevail on a claim of constitutionally ineffective
assistance of counsel, Appellant must show that his trial counsel’s
performance was deficient, and that such deficient performance
prejudiced the defense so seriously as to deprive him of a fair trial.
See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052,
80 LE2d 674) (1984).
To satisfy the deficiency prong, a defendant must
demonstrate that his attorney performed at trial in an
objectively unreasonable way considering all the
circumstances and in the light of prevailing professional
norms. This requires a defendant to overcome the strong
presumption that trial counsel’s performance was
adequate. To satisfy the prejudice prong, a defendant
must establish a reasonable probability that, in the
absence of counsel’s deficient performance, the result of
the trial would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.
Mitchell v. State, 307 Ga. 855, 858 (2) (838 SE2d 847) (2020) (citation
and punctuation omitted). “If the defendant fails to satisfy either
the ‘deficient performance’ or the ‘prejudice’ prong . . . this Court is
not required to examine the other.” Hendrix v. State, 298 Ga. 60,
19
61-62 (2) (779 SE2d 322) (2015).
Based on the above testimony, it is clear that Detective
Velasquez’s “reasonably sure” comment referred to the October 2015
incident involving Shimkus and Baldwin, and not the April 2015
incident. Further, Detective Velasquez’s reference to the April 2015
incident was merely to explain how he located Shimkus; he never
testified and no other evidence was presented that Appellant had
any involvement in that incident. Any objection by trial counsel to
Detective Velasquez’s comment on the ground that it improperly
implicated Appellant in the April 2015 incident would have been
meritless because the testimony did not support such an objection.
We therefore conclude that trial counsel did not perform deficiently
by failing to object to this testimony on this basis. See Lynn v. State,
310 Ga. 608, 617 (4) (c) (ii) (B) (852 SE2d 843) (2020) (citation
omitted) (“[T]he failure to make a meritless objection is not deficient
performance.”).
(b) Appellant’s argument that the trial court erred by
admitting the testimony fails for the same reason. Appellant did not
20
object to this testimony at trial, so we review its admission for plain
error only. See Harris v. State, 307 Ga. 657, 663-664 (2) (a) (837
SE2d 777) (2020) (“[B]ecause Harris did not make a specific
objection at trial to the admission of [the] statements on the grounds
now asserted in his appeal, we review these claims only for plain
error.”). To show plain error, Appellant
must point to an error that was not affirmatively waived,
the error must have been clear and not open to reasonable
dispute, the error must have affected his substantial
rights, and the error must have seriously affected the
fairness, integrity, or public reputation of judicial
proceedings. The third component of this test requires
[Appellant] to make an affirmative showing that the error
probably did affect the outcome below.
Lupoe v. State, 300 Ga. 233, 243 (4) (794 SE2d 67) (2016) (citation
and punctuation omitted).
For the reasons outlined above in Division 3 (a) explaining why
Appellant has not shown deficiency in his claim of ineffective
assistance, Appellant has shown no error, much less plain error, in
the admission of this testimony by the trial court. Accordingly, this
enumeration fails.
21
4. Appellant contends that trial counsel rendered
constitutionally ineffective assistance of counsel by failing to request
a jury instruction on intervening or unforeseen cause of death. We
disagree.
“As is the case generally, to authorize a requested jury
instruction, there need only be slight evidence supporting the theory
of the charge.” McClure v. State, 306 Ga. 856, 863 (1) (834 SE2d 96)
(2019) (punctuation omitted). “Whether the evidence presented is
sufficient to authorize the giving of a charge is a question of law.”
Garner v. State, 303 Ga. 788, 790 (2) (815 SE2d 36) (2018) (citation
and punctuation omitted). In determining whether a trial court
erred in giving jury instructions, we read and consider the
instructions as a whole. See Daniels v. State, 302 Ga. 90, 105 (7)
(805 SE2d 80) (2017).
Here, we conclude that the trial court gave sufficient
instructions to the jury regarding proximate cause, and an
additional instruction was unnecessary. In the final jury charge, the
trial court gave the pattern charge on causation for felony murder,
22
which states:
In order for a homicide to have been done in the
commission of this particular felony, there must be some
connection between the felony and a homicide. The
homicide must have been done in carrying out the
unlawful act and not collateral to it. It is not enough that
the homicide occurred soon or presently after the felony
was attempted or committed. There must be such a legal
relationship between the homicide and felony so as to
cause you to find that the homicide occurred before the
felony was at end or before any attempt to avoid
conviction or arrest for the felony. . . . The felony must
have a legal relationship to the homicide, be at least
concurrent with it in part, and be a part of it in an actual
and material sense. A homicide is committed in the
carrying out of a felony when it is committed by the
accused while engaged in the performance of any act
required for the full execution of the felony.
The jury was thus properly and adequately instructed on
proximate cause, and that jury charge was supported by the
evidence. An additional jury charge on unforeseen or intervening
cause was unnecessary because, considered as a whole, the charge
given by the trial court was a correct statement of the law with
regard to proximate cause in a felony murder case. See Treadaway
v. State, 308 Ga. 882, 889-890 (3) (843 SE2d 784) (2020)
(“Considering the charges as a whole, we conclude that the trial
23
court’s charge was an accurate statement of the law and was
sufficient to instruct the jury on the principles of proximate
causation relevant to this case.”). Thus, an additional instruction on
this issue was not required and could have properly been rejected by
the trial court if counsel had requested one. Therefore, trial counsel
did not perform deficiently by failing to request such an instruction,
and Appellant also has not shown prejudice from the lack of such a
request. See Pennie v. State, 292 Ga. 249, 252 (2) (736 SE2d 433)
(2013) (“In light of the evidence and the charges that the trial court
gave, trial counsel’s decision not to request a separate charge on
proximate causation was not patently unreasonable and did not
constitute deficient performance.”); Calhoun v. State, 308 Ga. 146,
151 n.3 (2) (a) (839 SE2d 612) (2020) (where jury was adequately
instructed on causation with respect to felony murder, the appellant
failed to demonstrate prejudice from trial counsel’s failure to request
specific jury instructions on proximate and intervening cause). This
enumeration fails.
5. Appellant contends that the trial court abused its discretion
24
when it allowed Detective Velasquez to testify about statements
Coleman made to him during Coleman’s custodial interview,
arguing that Detective Velasquez’s testimony repeating Coleman’s
statements was inadmissible hearsay. Further, Appellant contends
that this testimony was a violation of the Confrontation Clause and
that trial counsel rendered constitutionally ineffective assistance by
failing to object on this ground. Both claims fail.
During Coleman’s interview, which was relayed at trial
through Detective Velasquez’s testimony, Coleman said that he was
with Clark, Pritchett, Spencer, and Appellant on the day of the
crimes. The men were at the Mitchell Street house when they
agreed to drive to the Sky Lofts Condominiums. Coleman stated
that he and Pritchett remained in the car while the others entered
the condominium complex and that Pritchett drove him to a Wendy’s
restaurant before returning to Mitchell Street. Coleman also
admitted that he visited a restaurant called Mr. Everything on the
day after the crimes, but denied having or using Greer’s credit card
25
at the restaurant. 9 Coleman did not provide additional information
about the underlying crimes and did not discuss any prior burglaries
or robberies.
During Detective Velasquez’s testimony relaying what
Coleman told him, Appellant raised a hearsay objection, but the trial
court overruled the objection, stating that Coleman’s statements fell
within the co-conspirator exception to the hearsay rule. Appellant’s
trial counsel did not raise a Confrontation Clause objection.
(a) Hearsay
Appellant contends that the trial court abused its discretion
when it admitted these statements, over objection, under the coconspirator exception to the hearsay rule. We agree that the trial
court abused its discretion in admitting the hearsay statements, but
conclude that the error was harmless.
OCGA § 24-8-801 (d) (2) (E) provides in pertinent part:
Admissions shall not be excluded by the hearsay rule. An
admission is a statement offered against a party which
is . . . [a] statement by a [co-conspirator] of a party during
9Clark testified that Coleman told him he tried to use Greer’s credit card at Mr. Everything, but it was declined.
26
the course and in furtherance of the conspiracy, including
a statement made during the concealment phase of a
conspiracy. A conspiracy need not be charged in order to
make a statement admissible.
Before admitting the statements of a co-conspirator,
the State is required to show by a preponderance of the
evidence that a conspiracy existed, [and that] the
conspiracy included the declarant and the defendant
against whom the statement is offered, and the statement
was made during the course and in furtherance of the
conspiracy.
Mosley v. State, 307 Ga. 711, 716 (3) (838 SE2d 289) (2020) (citations
and punctuation omitted). Once the conspiracy is established, a
statement made by any co-conspirator is admissible hearsay when
such statement is made “during the course and in furtherance of the
conspiracy, including a statement made during the concealment
phase of a conspiracy.” OCGA § 24-8-801 (d) (2) (E). However,
“hearsay statements that implicate a co-conspirator but do not
advance any object of the conspiracy, such as statements that merely
spill the beans about the conspiracy, are not admissible[.]” Allen v.
State, 310 Ga. 411, 416 (3) (851 SE2d 541) (2020) (citation and
punctuation omitted).
27
Even assuming that a conspiracy existed and that both
Appellant and Coleman were part of it, Coleman’s statements to
Detective Velasquez were not made in furtherance of that
conspiracy. Coleman’s statements were made during his custodial
interview when he discussed his involvement in the burglary of
Greer’s condominium, including helping to plan the crime at the
Mitchell Street house. Coleman also admitted that he was with the
group when they traveled to the crime scene, and he confirmed the
identities of the other perpetrators who were with him. Thus, the
statements Coleman made to Detective Velasquez did not “advance
any object of the conspiracy,” and were more akin to “spill[ing] the
beans about the conspiracy.” Allen, 310 Ga. at 416 (3) (citation and
punctuation omitted). These statements therefore failed to meet the
co-conspirator exception to the hearsay rule, and the trial court
erred when it admitted these hearsay statements over Appellant’s
objection.
However, as discussed in Division 2 (b) above, there was other
strong evidence of Appellant’s guilt. Additionally, Coleman’s
28
statements were not especially prejudicial. Coleman placed
Appellant with the group at the Sky Loft Condominiums just before
the crimes occurred but did not directly implicate Appellant in any
crime; he did not discuss the planning of any robbery, explain what
happened inside the condominium complex, or say what happened
after the group fled the complex. Thus, the admission of these
hearsay statements was harmless, and this enumeration of error
fails. See Anglin v. State, 302 Ga. 333, 340-341 (6) (806 SE2d 573)
(2017) (any error in the admission of hearsay was harmless given
the strength of the State’s case).
(b) Confrontation Clause
Appellant also contends that trial counsel rendered
constitutionally ineffective assistance when he failed to raise a
Confrontation Clause objection to this testimony. The
Confrontation Clause provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]” U.S. Const. amend. VI. The Confrontation
Clause generally prohibits the admission of out-of-court testimonial
29
statements made by a declarant who is unavailable for crossexamination. See Johnson v. State, 289 Ga. 22, 26 (4) (709 SE2d
217) (2011). “A statement is testimonial if its primary purpose was
to establish evidence that could be used in a future prosecution.”
Favors v. State, 296 Ga. 842, 845 (2) (770 SE2d 855) (2015) (citation
and punctuation omitted). Whether a statement is “testimonial”
applies, “at a minimum[,] . . . to police interrogations.” Crawford v.
Washington, 541 U. S. 36, 68 (124 SCt 1354, 158 LE2d 177) (2004).
Assuming that counsel was deficient for failing to raise a
Confrontation Clause objection, the admission of this evidence was
harmless for the same reasons that it was harmless to admit the
same evidence under the co-conspirator exception to the hearsay
rule. Therefore, Appellant cannot show “a reasonable probability
that, in the absence of counsel’s deficient performance, the result of
the trial would have been different.” Mitchell, 307 Ga. at 858 (2).
Accordingly, this enumeration of error fails. See Smith v. State, 298
Ga. 406, 415 (3) (782 SE2d 269) (2016).
6. Appellant finally contends that his convictions should be
30
reversed based on the cumulative error rule set forth in State v.
Lane, 308 Ga. 10, 17 (1) (838 SE2d 808) (2020) (“We hold that the
proper approach [to assessing multiple trial court evidentiary
errors] . . . is to consider collectively the prejudicial effect, if any, of
trial court errors, along with the prejudice caused by any deficient
performance of counsel.”). We disagree.
We assumed without deciding in Division 2 that the trial court
erred in admitting evidence of the October 2015 incident. And we
determined in Division 5 that the trial court abused its discretion in
admitting Detective Velasquez’s testimony about his interview with
Coleman under the co-conspirator exception to hearsay; we also
assumed trial counsel’s deficiency with respect to this testimony as
a violation of the Confrontation Clause.
However, as explained in those divisions, Appellant has failed
to identify sufficient prejudice when these errors by the trial court
or trial counsel, either actual or assumed, are considered
individually. When considered cumulatively, these errors still do
not warrant reversal. See Allen, 310 Ga. at 418 (4); Hill v. State,
31
310 Ga. 180, 192 (850 SE2d 110) (2020).
Judgment affirmed. All the Justices concur.
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