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: May 17, 2022
S22A0100. MUNN v. THE STATE.
MCMILLIAN, Justice.
Mark Munn appeals his convictions for malice murder and
other crimes arising out of the shooting death of Kalliber Chambers. 1
On appeal, Munn asserts that: (1) the evidence presented at his trial
was insufficient to sustain his conviction for malice murder; (2) the
1 Chambers was killed on March 3, 2018, and in July 2019, a Douglas
County grand jury indicted Munn for one count of malice murder (Count 1),
one count of felony murder (Count 2), one count of aggravated assault (Count
3), a second count of felony murder (Count 4), and one count of possession of a
firearm by a convicted felon (Count 5).
At a trial conducted from October 21 through 25, 2019, a jury found
Munn guilty on all counts. On November 6, 2019, the trial court sentenced
Munn to serve life in prison without the possibility of parole for malice murder
with five years to serve consecutively for possession of a firearm by a convicted
felon. Counts 2 and 4 were vacated by operation of law, and Count 3 merged
into Count 1 for sentencing purposes.
Munn filed a timely motion for new trial through new counsel on
November 14, 2019, which was amended on February 11 and 17, 2021. After a
hearing, the trial court denied the motion, as amended, on April 28, 2021.
Munn filed a timely notice of appeal on May 27, 2021; the case was docketed
to the term of this Court beginning in December 2021 and submitted for a
decision on the briefs.
trial court erred in failing to charge the jury on the lesser offense of
voluntary manslaughter; (3) the trial court committed plain error by
failing to charge the jury on Munn’s sole defense of justification; (4)
the trial court placed Munn in shackles before the jury, denying
Munn his right to a fair trial and due process; (5) the trial court erred
in admitting the responding officer’s body camera footage; (6) the
trial court erred in admitting a recording of phone calls made from
jail by Munn; (7) the trial court erred in denying Munn’s JacksonDenno 2 motion; and (8) Munn received ineffective assistance of
counsel. We affirm for the reasons discussed below.
Viewed in the light most favorable to the jury’s verdict, the
evidence showed that 13-year-old K. C. lived in the Birch Landing
Apartments (“Birch Landing”) with her mother. Her adult brother,
Chambers, did not live there but visited “every day.” On March 3,
2018, K. C. was at Birch Landing playing outside with other children
while her brother and other adults were also outside. A grey car sped
by and pulled into a parking space. As the driver began walking
2 See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
2
toward the apartments, Chambers confronted the driver about
almost hitting the kids playing, and the driver pulled out a weapon
and pointed it at Chambers. Chambers put his hands up and asked,
“You going to shoot me?” The man then started shooting Chambers;
afterwards, the man drove away in a red car.
Numerous eyewitnesses identified the shooter as Munn. A
neighbor, Joy Smith, testified that she was familiar with Munn
because his girlfriend, Tameka Brooks, lived in the apartment
across the hall from Smith. Brooks and Munn had three cars
including a silver sedan and a red Dodge Charger. 3 On the day of
the shooting, Smith’s 12-year-old son was playing outside with K. C.
and other children. That afternoon, Smith noticed that it “[s]eem[ed]
like something was going on” between Munn and Brooks before
Munn left in a silver sedan. Munn later returned, speeding through
the parking lot and almost hitting the children playing. Chambers
3 Brooks testified that she owned a 2004 Nissan Murano and a 2004
Altima and that Munn owned a red Dodge Challenger. Brooks explained that
all three cars stayed at Birch Landing and that Munn usually drove the
Challenger. It appears that the witnesses referring to the Charger were likely
referring to the Challenger.
3
told Munn to slow down, but Munn responded, “F*** them kids.”
Smith heard Chambers ask if Munn was going to shoot him and saw
Munn pull out a handgun and fire four or five shots into Chambers.
The two men were standing about a car’s length apart. Munn then
screamed for Brooks to give him the keys, she threw him the keys,
and Munn left in the red “Charger.” Smith called 911, and the phone
call was played for the jury. 4
Another witness, Malcome McGee, arrived at Birch Landing
about 15 minutes before the shooting. McGee was sitting in the
driver’s seat of his own car, and Chambers was standing next to
McGee’s open car door. McGee saw Munn, whom he knew, drive into
the parking lot and park one space away from McGee’s car. When
Chambers asked Munn to slow down, Munn stepped out of the car
and said, “Don’t play with me.” Munn and Chambers’s conversation
was not long. Munn fired six or seven shots, and Chambers fell down
face first. McGee and another witness turned Chambers over, and
4 At least two other witnesses, who either saw the shooting or heard the
shots from inside, also called 911, and these calls were also played for the jury.
4
McGee saw the holes in Chambers’s abdomen.
Other eyewitnesses present on March 3 testified that when
Chambers asked Munn to slow down because of the kids, Chambers
did so in a normal, non-threatening tone. After Chambers spoke to
Munn, one witness heard Munn respond, “What did you say?” –
prompting Chambers to again ask Munn to slow down, with no
anger in his voice. Witnesses saw Munn draw a small-caliber
handgun and Chambers throw his hands up stating, “I know you’re
not going to shoot me.” Another witness stated that Munn fired six
to eight shots before fleeing in a red Challenger.
Brooks testified that, in 2018, she lived in Birch Landing and
that Munn was her boyfriend; he regularly stayed with her. On
March 3, Brooks and Munn went to the nail shop and then to
Applebee’s. After they returned to Birch Landing, Munn’s mother
called, requesting food. Brooks and Munn got into a disagreement
because Brooks did not want to leave; 5 Munn became upset and left
5 According to Brooks’s testimony, and that of the other witnesses, it was
a nice day and members of the community were hanging out in the parking lot,
drinking alcohol, and playing music.
5
in the Altima to take his mother food. When Munn returned, he
parked the car and started walking towards the apartments.
Chambers asked Munn to slow down, and Munn and Chambers
exchanged words. Munn pulled out a gun6 and immediately started
shooting; Chambers put his hands up and fell to the ground. Munn
asked Brooks for the keys to the Challenger, which she threw to him,
and Munn drove away. Munn never told Brooks that he was
planning to shoot or hurt Chambers.
Deputy Michael Long, one of the responding officers on March
3, 2018, testified that he arrived at Birch Landing before emergency
medical services. While another deputy was attending to Chambers,
Deputy Long secured the scene and collected contact information
from witnesses. His body camera video recording, which was played
for the jury, showed unsolicited comments from several people,
including two people who spoke about what they had witnessed: that
6Brooks was shown the murder weapon and testified that it was her gun.
She purchased the gun in June 2017, and Munn was with her when she bought
it.
6
the shooter shot Chambers for no reason and that the shooter had
left the scene.7
Stephen Albright, a paramedic for the Douglas County Fire
Department, responded to the call around 5:30 p.m. on March 3 and
arrived at Birch Landing around 5:45 p.m. He transported
Chambers to the hospital a few minutes later, where Chambers was
declared dead. The medical examiner who conducted the autopsy
testified that Chambers suffered three gunshot wounds through his
torso and one wound through his right arm. All three torso wounds
were severe, causing internal bleeding, and one of the gunshots
perforated the heart. The medical examiner opined that the cause of
death was multiple gunshot wounds.
Crime scene investigator Joe Williams testified that he arrived
at the scene after Chambers was transported to the hospital.
Williams testified that three nine-millimeter cartridge casings were
recovered from the parking lot. A GBI firearms investigator testified
7 Because so many people were talking at once on the video recording, it
is difficult to hear whether anyone identified Munn as the shooter.
7
that these cartridge cases were fired from a nine-millimeter pistol
later recovered from Munn’s vehicle.
Once in custody, Munn was interviewed by Investigator Jay
Hayes. Investigator Hayes conducted two separate interviews with
Munn on March 4: the first at 12:40 a.m. and the second at 4:30 p.m.
Both interviews were audio and video recorded and introduced into
evidence. 8 During the first interview, Munn was communicative and
answering questions. Munn insinuated that Chambers was a “Crip”
gang member and acknowledged knowing that Chambers was dead,
but denied shooting him. Munn also provided an alibi and
questioned Investigator Hayes about why there were eight holes in
Chambers if there were only five shots. Investigator Hayes
ultimately stopped this interview because he decided to interview
Munn again later when Munn was more sober. During the second
interview, Munn accepted responsibility for the shooting,
acknowledged that he shot Chambers multiple times, and said he
8 Investigator Hayes testified that he advised Munn of his Miranda
rights before both interviews and that both times Munn waived his rights. See
Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
8
had no reason to shoot Chambers. Investigator Hayes searched
Munn’s Dodge Challenger and found the nine-millimeter pistol in
the center console. Two days later, on March 6, Munn called
Investigator Hayes from the jail.9 During this phone call, Munn said
“[Chambers] was running at me, man,” and “he run up on me like
that,” and that Chambers said, “I don’t give a F*** bout you got a
pistol on you bruh,” implying that Chambers had a weapon on him.
Munn did not testify at trial, but recordings of several phone
calls made by Munn to Brooks from jail were introduced into
evidence and played for the jury. In these calls, Munn repeatedly
admitted to Brooks that he killed Chambers, and he expressed guilt
over the situation. At trial, defense counsel moved generally to
exclude the jail calls and specifically moved to exclude the “one
where Mr. Munn is heard saying words that basically he’s done this
[i.e. killed] before,” arguing that it was highly prejudicial character
evidence. The court overruled the objection and admitted the jail
9 A recording of this phone call was also played for the jury and
introduced into evidence.
9
calls. 10
1. In his first enumeration of error, Munn asserts that the
evidence presented at trial was insufficient to sustain his conviction
for malice murder under OCGA § 16-5-1 (a) because the facts did not
support a finding that Munn acted with malice aforethought. In
reviewing the sufficiency of the evidence, “the relevant question is
whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
OCGA § 16-5-1 (a) provides that “[a] person commits the
offense of murder when he unlawfully and with malice aforethought,
either express or implied, causes the death of another human being.”
However, “[t]he malice necessary to establish malice murder may be
formed in an instant, as long as it is present at the time of the
10The phone calls are largely unintelligible but both the State and
counsel agreed in the colloquy with the trial court about whether to admit the
calls that Munn said something to the effect that he had killed before.
10
killing.” Benton v. State, 305 Ga. 242, 244 (1) (a) (824 SE2d 322)
(2019). It is for the jury to weigh the evidence and determine
whether a killing is intentional and malicious. See id.
Here, there was more than sufficient evidence of malice.
Multiple witnesses testified that Chambers approached Munn about
his driving, causing Munn to become angry. Munn shot Chambers
multiple times, despite Chambers raising his hands. By Munn’s own
admission, he shot Chambers while Chambers was unarmed and
unthreatening. 11 Thus, the evidence was sufficient to support the
finding that Munn was guilty of malice murder. See Williams v.
State, 306 Ga. 674, 675 (1) (832 SE2d 843) (2019) (finding implied
malice where appellant shot unarmed victim leaving the scene after
11 Even though Munn also stated that Chambers had run at him while
saying that Chambers did not care that Munn had a gun, the jury was
authorized to disbelieve that statement, and it does not preclude a conclusion
that the evidence was sufficient to find Munn guilty of malice murder. “[I]t is
axiomatic that resolving evidentiary conflicts and assessing witness credibility
are within the exclusive province of the jury.” Graves v. State, 298 Ga. 551, 553
(1) (783 SE2d 891) (2016). See also Miller v. State, 312 Ga. 702, 706 (2) (864
SE2d 451) (2021) (conflicts in the evidence do not warrant a reversal of the
defendant’s conviction because the evidence was sufficient to enable “a rational
jury . . . to weigh the evidence, credit the testimony of the witnesses, and to
find [the defendant] guilty of malice murder”).
11
victim started argument over minor personal property dispute);
Moran v. State, 302 Ga. 162, 164 (1) (b) (805 SE2d 856) (2017)
(evidence of malice where appellant shot victim at close range “as he
tried to escape”).
2. Munn contends that the trial court erred in refusing his
request to charge the jury on the lesser offense of voluntary
manslaughter.
[A] trial court is required to grant the defendant’s request
for a charge on the lesser included offense of voluntary
manslaughter if there is any evidence, however slight, to
support such a charge. Whether such slight evidence
exists is a question of law. The crime of voluntary
manslaughter is committed when one kills “solely as the
result of a sudden, violent, and irresistible passion
resulting from serious provocation sufficient to excite
such passion in a reasonable person.” OCGA § 16-5-2 (a).
Blake v. State, 292 Ga. 516, 518 (3) (739 SE2d 319) (2013) (citations
omitted).
Munn argues that Chambers’s confrontation about Munn’s
driving, Chambers’s escalation of the argument after Munn stated
he did not want to talk, and Munn’s knowledge of Chambers’s street
name, “Crip,” (demonstrating affiliation with a known violent street
12
gang) are evidence that Munn acted as the result of serious
provocation. But, “words alone . . . will not . . . justify the excitement
of passion so as to reduce the crime from murder to manslaughter,
where the killing is done solely on account of the indignation aroused
by the use of opprobrious words.” Brooks v. State, 249 Ga. 583, 586
(292 SE2d 694) (1982) (citation and punctuation omitted). See also
Jones v. State, 301 Ga. 1, 6 (2) (799 SE2d 196) (2017) (neither angry
statements nor fear of fighting are sufficient to demand voluntary
manslaughter instruction), overruled in part on other grounds by
Worthen v. State, 304 Ga. 862 (823 SE2d 291) (2019). And killing due
to fear for one’s life does not alone support that one acted “due to
irresistible passion.” Dugger v. State, 297 Ga. 120, 124 (7) (772 SE2d
695) (2015). There was no evidence to support a voluntary
manslaughter charge here, and this enumeration is without merit.
3. Munn asserts that the trial court committed plain error by
failing to charge the jury on his sole defense of justification because
13
there was slight evidence to support the charge. 12 Where a defendant
does not request that the trial court give a jury instruction, as Munn
admits he did not here, this Court only reviews for plain error. See
White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012).
To establish plain error, an appellant must meet each
prong of a four-prong test: [F]irst, there must be an error
or defect – some sort of deviation from a legal rule – that
has not been intentionally relinquished or abandoned,
i.e., affirmatively waived by the appellant. Second, the
legal error must be clear or obvious, rather than subject
to reasonable dispute. Third, the error must have affected
the outcome of the trial proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error – discretion which
out to be exercised if only the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.
Washington v. State, 312 Ga. 495, 498 (863 SE2d 109) (2021)
12OCGA § 16-3-21 (a) provides:
A person is justified in threatening or using force against another
when and to the extent that he or she reasonably believes that such
threat or force is necessary to defend himself . . . against such
other’s imminent use of unlawful force; however, . . . a person is
justified in using force which is intended or likely to cause death
or great bodily harm only if he or she reasonably believes that such
force is necessary to prevent death or great bodily injury. . . .
14
(citation and punctuation omitted). “[W]e need not analyze all of the
elements of this test when . . . the defendant has failed to establish
one of them.” State v. Herrera-Bustamante, 304 Ga. 259, 264 (2) (b)
(818 SE2d 552) (2018).
To authorize a jury charge, there must be slight evidence
supporting the charge. See Floyd v. State, 307 Ga. 789, 798 (3) (837
SE2d 790) (2020); Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d
513) (1991). Here, Munn claims the prosecutor acknowledged during
the charge conference that there was evidence to support a
justification defense, presumably referring to Munn’s statement
that Chambers ran up to him saying that Chambers did not care
that Munn had a gun. Even assuming that is true, we fail to see how
the failure to give the charge would have affected the outcome of the
proceedings. Munn’s self-serving statement was the only evidence
even arguably supporting a justification defense; in comparison,
multiple eyewitnesses testified that Munn shot an unarmed
Chambers after Chambers threw his hands up and Munn admitted
in his second police interview that he shot Chambers multiple times
15
for no reason. See Jones v. State, 310 Ga. 886, 889 (2) (855 SE2d 573)
(2021) (harmless error to fail to charge on defense of self or third
person because “to the extent there was any evidence supporting a
charge on defense of self or a third person, it was meager at best”
and the video recording of the shooting showed that the defendant
was not in such danger that he reasonably believed that it was
necessary to fire his gun to protect himself or his friend); Calmer v.
State, 309 Ga. 368, 372-73 (2) (c) (846 SE2d 40) (2020) (assuming
that slight evidence existed to support the requested charges on selfdefense and no duty to retreat, the trial court’s failure to charge on
these principles was harmless error because “any weak inference
that [the defendant] acted to prevent death or great bodily injury to
himself is wholly undercut by other evidence to the contrary”). We
discern no plain error here in failing to charge on justification.
4. Munn next asserts that the trial court denied Munn his right
to a fair trial and due process by placing Munn in shackles before
the jury.
After the charge conference, Munn became very upset and
16
slammed the holding cell door, causing the courtroom deputy to
shackle him. Munn was then brought back into the courtroom, and
the prosecutor recommended that Munn remain shackled based on
Munn’s demeanor, which was becoming increasingly agitated, and
because trial was almost over. The trial court agreed, stating:
[I]t’s my job to protect everyone present. . . . [T]he
evidence has shown that the defendant shot someone.
That’s not in dispute . . . . I’ve been observing the
defendant through this trial and I’m very concerned that
he’s not going to be able to control himself. . . . He can
remain in the courtroom shackled, and I will give the jury
an instruction in regard to that, or he can just stay in the
holding cell while we finish these proceedings.
Munn’s trial counsel then walked over to the jury box and stated: “I
mean you can kind of see his feet. . . . I just don’t want there to be
prejudice, this late in the game, with him having shackles on . . . if
the jury can see that.” However, counsel did not make a specific
objection to Munn being shackled.13 Munn subsequently elected to
remain in the courtroom, and the trial court instructed the jury in
13 At the motion for new trial hearing, trial counsel explained, “I walked
over . . . to the jury box . . . to make sure that [the jury] wouldn’t have the view [of the shackles]. And I felt like I was comfortable that they didn’t, which is
why I kind of dropped it.”
17
the final charge not to consider the use of any restraints when
assessing guilt or innocence.
Because trial counsel did not make a specific objection at trial,
this issue is not preserved for review, and this enumeration of error
fails. See Whatley v. State, 270 Ga. 296, 302 (14) (509 SE2d 45)
(1998) (“A party cannot during the trial ignore what he thinks to be
an injustice, take his chance on a favorable verdict, and complain
later.” (citation and punctuation omitted)).
5. Munn asserts that it was error for the trial court to admit
the recording of the responding officer’s body camera video into
evidence over objection because the video contained witness
statements (specifically from Quantel Williams and McGee) telling
Deputy Long that the shooter shot Chambers for no reason – which,
he argues, violated his right to confrontation guaranteed by the
Confrontation Clause and was inadmissible hearsay.
(a) The Confrontation Clause of the Sixth Amendment provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him,” U.S. Const.
18
amend. VI, and “prohibits the admission of out-of-court testimonial
statements made by a declarant who is unavailable for crossexamination.” Stafford v. State, 312 Ga. 811, 824 (5) (b) (865 SE2d
116) (2021). See also Crawford v. Washington, 541 U.S. 36, 68 (V)
(C) (124 SCt 1354, 158 LE2d 177) (2004). A statement is testimonial
where “its primary purpose [is] to establish evidence that could be
used in a future prosecution.” Stafford, 312 Ga. at 824 (5) (b)
(citation and punctuation omitted).
Here, Deputy Long arrived at the scene approximately ten
minutes after the shooting occurred and before the ambulance had
arrived. As Deputy Long was attempting to secure the scene and put
up crime scene tape, he was asking people to get out of the way when
several onlookers, including Williams and McGee, made unsolicited
comments directed to the police about what had just happened,
including that “he shot him for no reason” and “he did that s**t for
no reason.” Even if these statements were considered testimonial,
both Williams and McGee testified at trial and were subject to crossexamination, so the admission of their statements does not violate
19
the Confrontation Clause. See Cornell v. State, 349 Ga. App. 883,
885 (2) (827 SE2d 63) (2019) (“[W]hen the declarant appears for
cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.”
(citation and punctuation omitted)).
(b) Because we have determined that the admission of the
statements on Deputy Long’s body camera footage do not violate the
Confrontation Clause, “normal rules regarding the admission of
hearsay apply.” McCord v. State, 305 Ga. 318, 322 (2) (825 SE2d 122)
(2019) (citation and punctuation omitted). A statement that would
otherwise be excluded as hearsay may be admissible as an excited
utterance, where the statement “relat[es] to a startling event . . .
[and is] made while the declarant was under the stress of excitement
caused by the event.” OCGA § 24-8-803 (2).
We have explained that the excited utterance need not be
made contemporaneously with the startling
event. Rather, the court should consider the totality of the
circumstances in determining whether the statement was
made while the declarant was still under the stress or
excitement that the startling event caused.
20
Blackmon v. State, 306 Ga. 90, 94 (2) (829 SE2d 75) (2019) (citations,
punctuation, and footnote omitted).
Here, the video recording shows that the witnesses were
screaming and crying as they made their unsolicited statements; the
statements were made approximately ten minutes after the
shooting, while Chambers was still on the scene bleeding to death;
and the witnesses were still under the stress of the shooting. See
McCord, 305 Ga. at 324 (2) (a) (i) (statements were excited
utterances where witness was “emotionally traumatized” shortly
after discovering the victim’s body and statements were “blurtedout”); Varner, 306 Ga. at 732 (2) (b) (ii) (witness statements on police
recording were excited utterances because “stress and excitement
caused by the shooting had not yet dissipated” when “police officers
responded just minutes after the shooting, and [the victim] was still
bleeding profusely as he waited for an ambulance”). The trial court
did not abuse its discretion in admitting these statements as excited
utterances.
6. Munn next asserts that the trial court erred in admitting
21
into evidence, over objection, the recording of phone calls made at
the jail by Munn to Brooks in which Munn said something to the
effect that he had killed someone before.
Munn argues that this statement was unduly prejudicial and
should have been excluded under OCGA § 24-4-403, because there
was no other evidence of any prior killing. OCGA § 24-4-403 provides
that “[r]elevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .”
However, “[w]e need not decide whether [the] statement was
erroneously admitted, because any error was harmless.” Bannister
v. State, 306 Ga. 289, 301 (5) (b) (830 SE2d 79) (2019).
The test for determining nonconstitutional harmless
error is whether it is highly probable that the error did
not contribute to the verdict. In determining whether the
error was harmless, we review the record de novo and
weigh the evidence as we would expect reasonable jurors
to have done so.
Rodrigues v. State, 306 Ga. 867, 871 (2) (834 SE2d 59) (2019)
(citations and punctuation omitted). Here, as the trial court
explained in its ruling on Munn’s motion for new trial, the calls were
22
largely hard to understand, and this statement comprised a small
part of the State’s overall mountain of evidence against Munn –
including multiple eyewitnesses to the shooting and Munn’s own
admission to the police that he shot an unarmed and unthreatening
Chambers for no reason. Because the evidence against Munn was
overwhelming, any error in admitting the statement that he had
committed another murder was harmless, and this enumeration
lacks merit. See Jackson v. State, 306 Ga. 69, 80 (2) (c) (829 SE2d
142) (2019) (“Although the evidence of the 2005 shooting should not
have been admitted, that error was harmless in light of the array of
other strong evidence demonstrating Appellant’s guilt.”).
7. Munn contends that the trial court erred in denying his
Jackson-Denno motion to suppress his first custodial interview with
Investigator Hayes because the statements in his first interview
were involuntary due to his intoxication, as evidenced by his slurred
speech, his lack of coherence, and Investigator Hayes’s ultimate
decision to stop the first interview to allow Munn to sober up. We
disagree.
23
In deciding the admissibility of a statement during
a Jackson-Denno hearing, the trial court must consider
the totality of the circumstances and must determine the
admissibility of the statement under the preponderance
of the evidence standard. Unless the factual and
credibility findings of the trial court are clearly erroneous,
the trial court’s decision on admissibility will be upheld
on appeal.
Jones v. State, 285 Ga. 328, 329 (2) (676 SE2d 225) (2009) (citation
and punctuation omitted). Statements are not automatically
rendered inadmissible based merely on intoxication at the time the
statements are made. See id.
Investigator Hayes explained that, during the first interview,
Munn was answering questions appropriately and that, although he
was intoxicated, it appeared that his statements were the product of
free will. Investigator Hayes ended the first interview because,
while Munn was not “completely inebriated,” Investigator Hayes
wanted Munn to have a “shot at [the interview] sober as opposed to
that state of mind that alcohol sometimes diminishes a little bit of
your ability to think different ways.” The trial court determined that
the statements in the first interview were freely and voluntarily
24
given because Munn was able to understand his Miranda rights and
explain the meaning of the first two Miranda rights when
questioned by Investigator Hayes and before signing the Miranda
waiver; Munn made no incriminating statements but rather tried to
exonerate himself by denying involvement in the shooting; Munn
questioned Investigator Hayes as to how there were eight holes in
Chambers and only five shots; Munn formulated an alibi; and Munn
was awake and able to recount where he had been on the day
Chambers was shot. These findings are amply supported by the
record, and overall, “[t]he evidence was sufficient to establish that
[Munn’s] statement[s] w[ere] a product of rational intellect and free
will, albeit that [Munn] was intoxicated at the time his statement[s]
w[ere] given,” and the trial court did not err in admitting the
statements. Fowler, 246 Ga. at 258 (3). See also Lewis v. State, 298
Ga. 889, 891 (2) (785 SE2d 520) (2016) (concluding that “the trial
judge was authorized to find that [the defendant] was rational and
coherent and that his statements were given knowingly and
voluntarily” where defendant, who was high on methamphetamine,
25
“indicated that he understood the waiver of rights form when he
signed it; . . . knew that the police were investigating [the victim’s]
death; . . . consented to the interview and knew what he was talking
about during the interview . . . . [and the] police decided to
terminate” the first interview to allow the defendant get some sleep);
Jones, 285 Ga. at 329 (2) (trial judge was authorized to find the
statements were voluntary even though the defendant was
intoxicated when he made them).
8. Finally, Munn contends that he received ineffective
assistance of counsel in several ways. His claims are without merit.
To establish ineffective assistance of counsel, Munn must
demonstrate both that trial counsel performed deficiently and that
the deficient performance resulted in prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984); Vivian v. State, 312 Ga. 268, 272 (2) (862 SE2d 138) (2021).
To show deficient performance, [Munn] must
demonstrate that his counsel performed his duties in an
objectively unreasonable way, considering all the
circumstances and in the light of prevailing professional
norms. To show resulting prejudice, [Munn] must
26
demonstrate that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. . . . The
combined effect of counsel’s unprofessional errors must be
considered in assessing whether the requisite prejudice
has been shown.
Fisher v. State, 299 Ga. 478, 483 (2) (788 SE2d 757) (2016) (citations
and punctuation omitted). If Munn “fails to establish either prong of
the Strickland test, we need not examine the other.” Vivian, 312 Ga.
at 273 (2).
(a) Munn first claims that his trial counsel was ineffective by
failing to file a written request to charge the jury on the defense of
justification. This argument fails.
Assuming, without deciding, that trial counsel’s failure to
request a justification charge was deficient, Munn “was not
prejudiced unless there is a reasonable probability that, absent
counsel’s alleged error in failing to . . . request that charge, the jury
would have reached a [different] verdict.” Blackwell v. State, 302 Ga.
820, 827 (3) (809 SE2d 727) (2018). However, “[b]ecause we have
concluded that [Munn] has failed to establish prejudice under the
27
plain-error standard, he also cannot establish prejudice to support
his ineffective assistance of counsel claim” on this ground. Dunn v.
State, 312 Ga. 471, 479 n. 8 (863 SE2d 159) (2021) (citation and
punctuation omitted).
(b) Munn further contends that his trial counsel was ineffective
in failing to request a mistrial after the trial court ordered that
Munn remain shackled in front of the jury.
“[N]o person should be tried while shackled . . . except as a last
resort.” Illinois v. Allen, 397 U.S. 337, 344 (I) (90 SCt 1057, 25 LE2d
353) (1970). But the court has the discretion to resort to shackling,
under some circumstances, where “an essential state interest [is]
furthered . . . [and where] less restrictive, less prejudicial methods
of restraint were considered.” Hill v. State, 308 Ga. 638, 644 (1) (a)
(842 SE2d 853) (2020) (citations and punctuation omitted). As the
trial court explained in denying Munn’s claim that his due process
rights were violated by his shackling at trial: Munn weighed
approximately 270 pounds and was over six feet tall; he was not
seated at the table closest to the jury; there was concern that “what
28
had previously happened [i.e., Munn’s sudden loss of temper when
Chambers asked him to slow down] could be repeated in some
fashion”; Munn’s “temper was simmering under the surface”
throughout the trial despite his apology to the court after he
slammed the holding cell door; and Munn had a previous conviction
for aggravated assault against his own mother. Moreover, there was
no evidence that the shackling would impair Munn’s ability to confer
with his counsel. The trial court further determined that there was
no evidence that the jury could see Munn’s shackles under the table
because his hands could be kept below the table and his waist was
hidden by the table and others sitting between him and the jury.
And the configuration of the courtroom as described in the record
supports this finding. Thus, the trial court did not abuse “its
discretion in ordering that the defendant be restrained as a
preventative security measure.” Kitchen v. State, 263 Ga. 629, 629-30 (1) (436 SE2d 645) (1993). Compare Hill, 308 Ga. at 645-46 (1) (a)
(trial court abused its discretion by requiring defendant to be visibly
shackled where defendant was acting pro se and was shackled
29
throughout entire trial and where trial court based its decision on
hearsay and failed to make “individualized findings on the record in
support of [the shackles]”). Because the trial court did not abuse its
discretion when it ordered Munn to be shackled, “trial counsel
cannot be ineffective for failing to make a meritless motion.” Cox,
306 Ga. at 741 (2) (b) (trial counsel not ineffective for failing to move
for mistrial where “mistrial was not mandated” (citation omitted)).14
Judgment affirmed. All the Justices concur.
14 Munn does not argue that the errors we assume for purposes of
analysis in this opinion, though individually harmless, nevertheless
cumulatively resulted in harm, and we discern no apparent cumulative
prejudice on this record. See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808)
(2020) (“[A] defendant who wishes to take advantage of the [cumulative error
rule] should explain to the reviewing court just how he was prejudiced by the
cumulative effect of multiple errors.”).
30