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: December 10, 2024
S24A1354. HAYES v. THE STATE.
BOGGS, Chief Justice.
Appellant Jarrod James Hayes challenges his convictions for
malice murder and other crimes in connection with the shooting
death of Zedekiah Jones. Appellant contends that the trial court
erred in denying his motion to suppress three firearms that were
discovered at his home after he disclosed their existence and location
in a statement that was not preceded by warnings required by
Miranda.1 He also asserts that he was denied the effective
assistance of counsel; that the trial court abused its discretion by
allowing a witness’s video-statement to be played after the witness
claimed not to recall the statement; that the trial court erred by
refusing to bifurcate his malice murder and aggravated assault
1 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
counts from his three felon-in-possession counts; that the trial court
erred by refusing to give jury instructions on voluntary
manslaughter and mutual combat; and that the combined
prejudicial effect of the multiple errors of the trial court and multiple
deficiencies of trial counsel requires a new trial. We conclude that
because the statement given without Miranda warnings was
voluntary, the firearms were admissible. We also conclude, for the
reasons set forth below, that his other claims fail. Accordingly, we
affirm.2
2 The crimes occurred on January 17, 2020. On January 31, 2020, a
Douglas County grand jury indicted Appellant for malice murder, aggravated
assault, two counts of felony murder, three counts of possession of a firearm by
a convicted felon, and possession of less than an ounce of marijuana. The
marijuana-possession count was nolle prossed, and at a trial from February 15
to 22, 2022, the jury found Appellant guilty of all charges. The trial court
sentenced Appellant to serve life in prison without the possibility of parole for
malice murder and three terms of five years imprisonment each for the
weapons charges, running concurrently with each other. The felony murder
verdicts were vacated by operation of law, and the trial court merged the
aggravated assault count into the malice murder conviction. On March 14,
2022, Appellant timely filed a motion for new trial, which he amended with
new counsel on April 24, 2023. After an evidentiary hearing on June 22, 2023,
the trial court entered an order denying the motion on May 9, 2024. Appellant
filed a timely notice of appeal, and the case was docketed in this Court to the
August 2024 term and submitted for a decision on the briefs.
2
1. The evidence presented at trial showed the following. 3 On
January 16, 2020, Zedekiah Jones and his wife, McKeda Jones,
traveled from Utah to Atlanta, Georgia, for Zedekiah’s
grandmother’s funeral. When they arrived in Atlanta, they rented a
car at the airport, went shopping, and then drove to Quincy Sims’s
father’s home near the West End neighborhood. Sims and Zedekiah
had been friends for several years. While at Sims’s home, Zedekiah,
McKeda, Sims, and other friends and family were “drinking and
barbecuing.” Zedekiah, McKeda, and Sims remained there until
around 11:00 p.m., at which point they decided to go “holler at”
Appellant, who lived in Douglasville, Georgia. Zedekiah, Sims, and
Appellant had all been friends for several years. Zedekiah, McKeda,
and Sims arrived at Appellant’s home on Viola Court in Douglas
County between 11:00 p.m. and midnight. When they arrived,
Appellant, his wife Rose Hayes, and their four children were at the
3 Because this case involves questions of harmless error and prejudice
under Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674)
(1984), we set out the evidence in detail, rather than recounting it in the light
most favorable to the jury’s verdicts. See Moore v. State, 315 Ga. 263, 264 n.2
(882 SE2d 227) (2022).
3
home. The five adults began drinking and playing pool in the
basement for several hours. Rose was smoking marijuana, while
Zedekiah and Sims each consumed a pill that McKeda suspected
was Ecstasy. Sims, however, testified that the only drug he had in
his possession the night of the shooting was Percocet. Sims was also
under the influence of cocaine and Percocet the following day when
he was interviewed by investigators.
At 3:17 a.m. on January 17, Sims recorded and uploaded a
video to Instagram of the five adults socializing and playing pool in
the basement. At 4:09 a.m., Sims recorded and uploaded another
Instagram video, this time of Zedekiah, who also went by “Tenarus,”
asleep in the upstairs bathroom of the home. In the video Sims can
be heard saying, “We been looking for [Zedekiah] for the last thirty
minutes.” After finding Zedekiah, Sims and Appellant helped
Zedekiah into the upstairs bedroom, where Zedekiah joined
McKeda, who was already lying on the bed asleep. At some point,
Rose joined Zedekiah and McKeda on the bed. All three were fully
clothed.
4
At 4:34 am, Sims recorded and uploaded a final video to
Instagram showing Zedekiah, McKeda, and Rose on the bed, with
Zedekiah in the middle. Zedekiah and Rose can be heard on the
video talking aggressively to each other. Fifteen minutes after the
final video, Rose pushed Zedekiah to the ground, and in response,
McKeda attacked Rose, biting her over her eye. 4 While Sims helped
Zedekiah off the ground, Appellant intervened to defend Rose
against McKeda. Seeing this, Zedekiah got involved in the
altercation and began to fight Appellant. Sims attempted to
separate the couples, but in the process of doing so, he heard
someone reference a gun and noticed Appellant was no longer in the
room. Sims also heard someone say, “[G]et these people” out of my
house. 5 Upon hearing the reference to a gun and seeing Appellant
was no longer in the room, Sims immediately left the home.
After Sims left, the struggle between the couples continued.
4 McKeda and Rose were arrested and charged with multiple counts of
battery.
5 Sims testified that he was “not a hundred percent about who said
what.”
5
McKeda, whose version of events leading up to and during the
struggle differed from Sims’s, testified that Rose was “fighting me
from behind and she’s biting me. She was taking her hands and
putting them in my eyes trying to hold me back and pulling my hair
and stuff.” While Rose attacked McKeda, McKeda attempted to
crawl over to Zedekiah, who was being punched in the eye by
Appellant. Eventually, Rose stopped attacking McKeda, and
McKeda crawled over to an unresponsive Zedekiah. As McKeda
urged Zedekiah to “[g]et up,” Appellant “[shot] Tenarus” once.
McKeda did not remember what type of gun Appellant used to shoot
Zedekiah because she claimed she did not “know guns.” However,
there was evidence that McKeda took a photo with a firearm, which
was unrelated to Zedekiah’s killing, on her lap prior to the day of the
shooting. There was no evidence presented to suggest that she
brought that firearm, or any other firearm, to Appellant’s home.
At 4:39 a.m., video footage from a camera above the garage of
a neighboring home on Willow Ridge Road, which is adjacent to
Viola Court, showed an individual walking away from the direction
6
of Appellant’s home and sitting on a curb.6 Also, around this time,
an unidentified dark-colored vehicle drove toward the direction of
Appellant’s home and drove back from that direction around two
minutes later. At 4:42 am, the garage camera recorded what sounded
like a gunshot. A neighbor also testified that he heard multiple
gunshots the morning of the incident.
At 4:44 a.m., Rose called 911 stating, among other things, that
her “husband [was] fighting for his life” and that a woman bit Rose
while Rose was asleep. Through an enhanced version of Rose’s 911
call that was played for the jury at trial, an investigator testified
that “he believed” Appellant could be heard telling Rose, “I am going
to jail for murder. I love you.” At 4:45 a.m., Appellant called his
brother, but the substance of that conversation is unknown. Around
two minutes later, Appellant called 911, reporting that Zedekiah
had been shot by someone in a black Dodge Charger and requesting
that deputies immediately help Zedekiah. Appellant also relayed
6 Investigators later confirmed that this person was Sims.
7
instructions on how to perform CPR from the 911 operator to
McKeda. Neither McKeda nor Sims called 911.
At 4:57 a.m., Deputy Anna Stone of the Douglas County
Sheriff’s Office arrived on scene and found Zedekiah lying on his
back, with a gunshot wound to the chest, in a pool of “coagulated”
blood7 near the front entrance of the home. McKeda was hysterically
crying over Zedekiah’s body, and Appellant, who was shirtless, stood
on the stairs leading to the upper level of the home. Deputy Stone
asked Appellant where the shooter was, and he responded that “[the
shooter] left in a black Dodge Charger.” Deputy Stone transmitted
this information over the radio so that responding units could keep
a look out for a black Dodge Charger.
As Deputy Stone performed life-saving procedures on Zedekiah
and other deputies arrived, Sims came up the stairs from the
basement and attempted to step over Zedekiah. Deputies ordered
7 While responding deputies described the blood as “coagulated,”
suggesting that it had been there “for a while,” the medical examiner testified
that coagulation refers to “blood clotting within the body,” and would not apply
to blood that is on the floor.
8
Sims to stop moving, prompting him to return to the basement and
exit through the basement door. Deputies searched the home and
surrounding area for Sims but were unable to locate him that
morning. Sims, who was incarcerated at the time of his testimony
for violating his parole involving a previous conviction for
aggravated assault with a firearm, testified that he went back to the
home to “see what was going on” because he heard gunshots and left
his cell phone.
Paramedics arrived and transported Zedekiah to a hospital,
where he died later that day. Rose was also transported to the
hospital because of an injury to her eye. Once paramedics left,
deputies began to question McKeda and Appellant. Deputy Stone
supervised McKeda while McKeda, whom Deputy Stone believed to
be intoxicated, completed a written witness statement, and another
deputy did the same with Appellant. In Appellant’s written
statement, he maintained that someone in a black Dodge Charger
argued with, fought, and shot Zedekiah. However, McKeda’s
statement noted, and she also testified, that there was no person in
9
a black Dodge Charger and that Appellant shot Zedekiah.
After Appellant completed his written statement, he was
placed in handcuffs, put in the back of a patrol car, and then later
moved to a different patrol car. Investigators arrived on scene at
approximately 6:00 a.m. After conducting a brief walk-through of
the scene, investigators left and went to the sheriff’s office to
interview McKeda at 6:56 a.m. During that interview, she again
stated that Appellant shot Zedekiah. At that point, investigators
refocused their attention on Appellant.
The medical examiner testified at trial that Zedekiah’s death
was due to a gunshot wound to the abdomen.8 In addition to the
gunshot wound, the autopsy report indicated that Zedekiah suffered
several injuries that occurred close in time to his death. Those
injuries included a black eye, bruising to the top of his head, arms,
face, hands, and neck, and bleeding of the whites of his eyes. The
8 The crime scene investigator testified that by using trajectory rods they
were able to determine that the shooter “was possibly standing on the stairs
that lead to the lower level of the home, and the shots were coming from that
direction going out of the house . . . towards the front door.”
10
medical examiner could not say specifically what caused Zedekiah’s
injuries but testified that the injuries could have been caused by an
impact with a blunt object or something striking his head or his head
striking something.
While executing a search warrant, deputies recovered three
7.62 cartridge casings in the foyer area of the home, a purple SCCY
nine-millimeter pistol in the downstairs bedroom, a Smith and
Wesson nine-millimeter pistol in a standalone toolbox in the garage,
and a SKS rifle in the garage buried under several items. Deputies
also discovered three bullet holes in the foyer area of the home and
two bullets, one located underneath the stairs of the front porch and
the other on the support beam underneath the foyer. A forensic
expert testified that she could not definitively say whether the
bullets and cartridge casings found at the scene came from the SKS
rifle located there, nor could she confirm if they originated from the
same firearm. But she confirmed that the SKS rifle found at the
scene is the type of firearm that would fire these bullets and
cartridge casings.
11
A sample of Appellant’s blood from January 24, 2020, was
checked for “drugs or poisons.” The results of that test showed
negative results for several drugs, including marijuana, cocaine,
common opioids, and certain prescription and over-the-counter
medications.
2. In his first enumeration of error, Appellant contends that
he was not given warnings required by Miranda prior to making
statements at the sheriff’s office,9 and that the trial court erred by
denying his motion to suppress the three guns found in the house
because the guns were discovered only as a result of the information
he provided in his statement given without Miranda warnings. We
disagree.
The facts relevant to this enumeration are as follows. At a
Jackson-Denno10 hearing outside the presence of the jury prior to
trial, investigators testified that deputies initially placed Appellant
9 Appellant also contends as part of his first enumeration of error that
the trial court erred by not excluding the statement made at the sheriff’s office, but that statement was not admitted into evidence, nor did anyone testify
about what Appellant said at trial.
10 Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LEd2d 908) (1964).
12
in the back of a patrol car because it was cold outside, and the house
and surrounding area was an active crime scene.
After interviewing McKeda, investigators returned to the
crime scene at 7:55 a.m. and asked Appellant, who was still in the
back of the patrol car, if he would like to come to the sheriff’s office
to talk. When asked if Appellant seemed “willing and eager” to
speak, investigators testified that Appellant was. During the ride,
Appellant was unrestrained and rode in the front seat. Appellant
was “chatty” on the ride to the station, discussing his life and
growing up in Atlanta.
Once they arrived at the sheriff’s office, investigators took
Appellant to an interview room at 8:16 a.m. for a recorded
conversation about what happened. Appellant seemed “very willing”
to talk, “offer[ing] information” without being asked, including
informing investigators that Appellant was a convicted felon.
Investigators asked Appellant whether there were any firearms at
his home, citing safety reasons for the deputies who were clearing
the home, and not knowing whether Sims—whom deputies had not
13
yet identified or located—was still in the home. Appellant responded
that there were firearms in the home and told investigators where
they were located. At this point, investigators determined that
Appellant was not free to leave because Appellant was suspected of
being involved in shooting Zedekiah, was a convicted felon, and had
firearms in the home. Appellant was interviewed for approximately
six hours and remained in the interview room until 5:00 or 6:00 p.m.,
at which point he was placed under arrest. At no point before,
during, or after the conversation with investigators was Appellant
informed of his Miranda rights.
Before trial, the State and trial counsel for Appellant entered
into an agreement, stipulating that Appellant was not given
Miranda warnings at any time before he was questioned at the
sheriff’s office. However, they also agreed that his statement to
investigators, regarding being a convicted felon and having firearms
in his home, was voluntary. Given the lack of warnings required by
Miranda, the parties agreed that the statement would not come into
evidence unless Appellant testified, at which point it could be used
14
for impeachment. The following occurred regarding the stipulation:
DEFENSE COUNSEL: So I had to spend some time
talking to my client about that issue and then the issue of
being able to be impeached if he were to testify with that
statement, if it’s deemed to have been voluntary. And I
had a discussion with him further this morning about the
voluntariness of that statement. And when I say -- when
I talk about the statement, it’s the one that he made at
the sheriff’s office. And I believe he agrees, based upon the
definition of voluntariness, that he wasn’t coerced. He
wasn’t threatened. He wasn’t promised anything when he
made that statement to the sheriff’s office. But I believe
he understands that that statement is voluntary and
could possibly come into impeachment if he were to
testify, so. And I just wanted -- because it came up really
quickly, I just want to make sure, on the record, that my
client understood the issue for clarification. . . . I think we
can stipulate that it was voluntary with the
understanding that he wasn’t coerced, threatened, or
promised anything to make the statement. He just wasn’t
Mirandized. . . .
TRIAL COURT: Well, it sounds like to me [Defendant is]
stipulating that it’s a voluntary statement.
STATE COUNSEL: Okay.
TRIAL COURT: But it doesn’t come in under – in any
way, shape, or for unless defendant testifies.
STATE COUNSEL: Understood.
Before jury selection continued the following morning, trial
counsel told the trial court that they needed to have a JacksonDenno hearing because she wanted to raise a “fruit of the poisonous
15
tree argument,” asserting that the guns would not have been found
had it not been for the statement made without warnings required
by Miranda. During the Jackson-Denno hearing later that day, an
investigator testified about the interview. Trial counsel argued that
the guns found in the home should have been suppressed because
Appellant was not Mirandized and because the investigator
deceived Appellant regarding the need to know where the guns were
for officer safety. The trial court rejected this argument, citing
United States v. Patane, 542 U.S. 630, 643 (124 SCt 2620, 159 LE2d
667) (2004), which holds that physical evidence obtained from a
statement given without Miranda warnings is admissible if it is
voluntary. In this instance, the trial court concluded that “[a]ll of the
evidence shows the statements were voluntary.” In making its
ruling, the trial court recited the testimony presented and did not
rely on the stipulation set forth the previous day.11
11 The trial court first stated that it was assuming that Miranda was
required to be given, but that Patane did not require suppression of physical
evidence obtained by unwarned, voluntary statements. However, it later
concluded that Appellant was not in custody and Miranda was not required.
16
On appeal, Appellant argues that the failure to Mirandize him
while he was in custody required that the firearms discovered
because of that statement given without Miranda warnings should
have been excluded as “fruit of the poisonous tree.” Appellant also
contends that he was extremely intoxicated and in shock when he
made the incriminating statement; therefore, continued questioning
rendered the statement involuntary. For the reasons we explain
below, this claim fails.
Warnings under Miranda must be given when an individual is
in custody and subject to interrogation, or its functional equivalent.
See Johnson v. State, 301 Ga. 707, 711 (804 SE2d 38) (2017). A
person is considered in custody, for Miranda purposes, when he is
“(1) formally arrested or (2) restrained to the degree associated with
a formal arrest. Unless a reasonable person in the suspect’s
situation would perceive that he was in custody, Miranda warnings
Because we determine below that the trial court did not abuse its discretion in
finding that Appellant voluntarily gave his statement, we need not resolve the
issue of whether Appellant was in custody for Miranda purposes.
17
are not necessary.” Acosta v. State, 311 Ga. 320, 325 (857 SE2d 701)
(2021) (cleaned up). Other than a few exceptions, a statement
obtained in violation of Miranda is inadmissible. See Gonzalez v.
State, 319 Ga. 787, 789 (906 SE2d 705) (2024). However, physical
evidence obtained because of a statement obtained in violation of
Miranda is not necessarily inadmissible. Rather, if the statement
given without Miranda warnings is made voluntarily, while in
custody, the physical evidence discovered because of the unwarned
statement may be admissible. See Patane, 542 U.S. at 642-644
(concluding that the failure to provide Miranda warnings did not
require suppression of the physical evidence of the suspect’s
voluntary statement given without Miranda warnings while in
custody). See also Jenkins v. State, 317 Ga. 585, 591 n.6 (894 SE2d
566) (2023) (discussing Patane).
Reviewing the grant or denial of a motion to suppress requires
this Court to “construe the evidentiary record in the light most
favorable to the trial court’s factual findings and judgment.”
Westbrook v. State, 308 Ga. 92, 96 (839 SE2d 620) (2020) (cleaned
18
up). The trial court’s factual and credibility findings must be
accepted unless they are clearly erroneous. See Hughes v. State, 296
Ga. 744, 746 (770 SE2d 636) (2015). Here, the trial court found that
the investigators’ interactions with Appellant were “conversational”;
that investigators never got loud with Appellant, never threatened
him, never coerced him, nor promised him anything; and that
Appellant voluntarily went to the sheriff’s office to be interviewed
about what happened on the night of the shooting.
In light of those findings, we cannot say the trial court abused
its discretion when it concluded that, based on the totality of the
circumstances, Appellant’s statement to investigators was
voluntary. Indeed, the record supports the trial court’s finding that
Appellant was not subjected to any “coercive police interrogation[]”
that would have rendered his statement involuntary. See Patane,
542 U.S. at 640 (cleaned up). And although Appellant contends that
he was “also extremely intoxicated and in shock,” he does not point
to any evidence that shows that his intoxication rendered his
statement constitutionally involuntary. See State v. Franklin, 318
19
Ga. 39, 43 (897 SE2d 432) (2024) (“Thus, even if a defendant gives a
statement while significantly intoxicated or influenced by drugs, the
statement is not involuntary as a matter of constitutional due
process absent some evidence of coercive conduct by law
enforcement in eliciting the statement.”).
Therefore, because the record supports the trial court’s
findings that Appellant voluntarily gave the statement about the
firearms and that Appellant was not subject to any coercive conduct
by law enforcement, the trial court was not required to suppress the
evidence. See Patane, 542 U.S. at 642-644. See also Clay v. State,
290 Ga. 822, 828 (725 SE2d 260) (2012) (noting that “Patane held
that the suppression of the physical fruits of a defendant’s unwarned
but voluntary statements is not constitutionally required . . .”).
Accordingly, this claim fails.
3. Appellant next contends that he was denied the effective
assistance of counsel with respect to his trial counsel’s handling of
the stipulation and one of the State’s expert witnesses. To prevail on
a claim of ineffective assistance of counsel, an Appellant must prove
20
both that the attorney’s performance was professionally deficient
and that the deficiency resulted in prejudice to his case. See
Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
674) (1984). To establish deficient performance, the defendant must
show that his attorney’s acts or omissions were objectively
unreasonable, considering all the circumstances at the time and in
the light of prevailing professional norms. See id. at 687-690. To
establish the required prejudice, the defendant must show that but
for his attorney’s unprofessional errors, there is a “reasonable
probability” that the result of the proceeding would have been
different. Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. “This burden,
though not impossible to carry, is a heavy one.” Ellis v. State, 292
Ga. 276, 283 (736 SE2d 412) (2013). See Kimmelman v. Morrison,
477 U.S. 365, 381-382 (106 SCt 2574, 91 LE2d 305) (1986). Appellant
has not carried his burden here.
(a) Appellant asserts that his counsel was deficient because
she failed to prepare for and properly handle the Jackson-Denno
21
hearing. Particularly, Appellant contends that trial counsel was
deficient because she stipulated to the voluntariness of Appellant’s
statement to investigators, knowing he had not been informed of his
Miranda rights. Appellant contends, without offering further
explanation, that the stipulation led to the admission of the three
firearms found in Appellant’s home and inhibited his ability to
testify for fear that his interview with investigators would be used
against him.
Pretermitting whether counsel was deficient for agreeing to the
stipulation, Appellant cannot show prejudice because the record is
clear that the trial court did not rely on the stipulation in ruling that
the firearms were admissible in light of Appellant’s unwarned, but
voluntary statement. Specifically, the trial court determined on its
own, apart from the stipulation, that “[t]here is zero coercion
exercised by the detective towards [Appellant] . . . .” Cf. Scott v.
State, 317 Ga. 799, 808 (896 SE2d 484) (2023) (determining that
even if trial counsel’s failure to object to evidence and testimony that
potentially raised an inference that Appellant was a member of a
22
gang was deficient, such testimony was of limited value because of
other evidence, including Appellant’s own testimony, that he knew
gang members). See also Turner v. State, 308 Ga. 537, 540-541 (842
SE2d 40) (2020) (concluding that even assuming trial counsel was
deficient, the defendant could not show prejudice because the
disputed testimony held minimal value to the State’s case).
Likewise, we uphold the trial court’s ruling without relying on the
stipulation. Therefore, Appellant has failed to show any prejudice
stemming from trial counsel’s alleged deficient performance in
making the stipulation and his ineffective assistance of counsel
claim fails.
(b) Appellant also asserts that his trial counsel failed to
object to the State’s media specialist witness, T.J. Jaglinski, on the
correct basis. Jaglinski testified that he enhanced Rose’s 911 call so
that it could be heard more clearly. He took portions of the 911 call
and removed background noise, boosted the audio, and used
equalizers to remove extraneous noises. Following Jaglinski’s
testimony, each juror was given a copy of the transcript of the 911
23
call and the audio was played for the jury during an investigator’s
testimony. The investigator testified that he “believed” that
Appellant could be heard on the call saying, “I’m going to jail for
murder.” At trial, Appellant’s counsel objected to the admission of
the enhanced 911 recording based on the continuing witness rule.12
Appellant contends, without citation to any authority beyond
Strickland, that trial counsel should have objected to the State’s
failure to adequately establish that Jaglinski was an expert
regarding his testimony on the process of enhancing Rose’s 911 call,
rather than on the basis of the continuing witness rule. 13 Appellant
argues that the State provided no proof that Jaglinski had the
appropriate level of education, training, or experience to alter base
levels and remove sections of background audio and that, as a result,
the enhanced 911 recording should not have been admitted.
12 The “continuing witness” rule is founded on the idea that written
testimony is perceived by the jury in the same way as oral testimony when
delivered from the witness stand. Allowing written testimony to accompany
the jury for review during deliberations creates an unfair advantage, placing
undue emphasis on it, while oral testimony is considered only once. See Keller
v. State, 308 Ga. 492, 505-506 (842 SE2d 22) (2020).
13 Some of us question whether this error was properly raised as an issue
of expert qualifications. Nevertheless, we address the issue as it was presented.
24
Additionally, Appellant contends that OCGA § 24-7-702, which
extends the Daubert14 standard to criminal trials, should have been
applied to Jaglinski’s testimony, and thus appears to argue that trial
counsel was deficient in not making an objection under Daubert.
As an initial matter, counsel could not have been deficient in
failing to raise a Daubert objection, given that OCGA § 24-7-702 only
applies to criminal trials commenced on or after the statute’s July 1,
2022, effective date. See Ga. L. 2022, p. 201, § 2.15 Appellant’s trial
occurred in February 2022, making the statute inapplicable. See
Scott v. State, 306 Ga. 417, 420 (831 SE2d 813) (2019) (concluding
that trial counsel is not ineffective for failing to apply law that was
not applicable at the time of trial).
Moreover, other than the investigator’s testimony that he
“believed” that Appellant was the speaker in the background of
14 Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579 (113 SCt
2786, 125 LE2d 469) (1993).
15 At the time of Appellant’s trial, Harper v. State, 249 Ga. 519 (292 SE2d
389) (1982), was the relevant case under which a party would object to an
expert’s qualifications under Rule 702. But Appellant does not contend that his
counsel was ineffective for failing to object based on Harper, and so we do not
address it here.
25
Rose’s 911 call, it is not readily apparent who is speaking. And even
with Jaglinski’s enhancements, the 911 call still contains a
noticeable amount of background noise that makes it difficult to
clearly hear what is being said in the background, much less to
conclude that Appellant is saying anything inculpatory on the call.
Additionally, prior to the playing of the 911 call at trial, the
trial court instructed the jury that
The contents of the tape are the evidence, not the transcript
that the district attorney’s office has prepared that is going to
be handed to you. . . . And if you think the audiotape says
something different, then the audiotape and your discernment
of what it says is the evidence and not the purported transcript.
The transcript is someone else’s opinion of what’s depicted on
the audiotape . . . .
In her closing argument, Appellant’s trial counsel further
encouraged the jury to determine for themselves what was said on
the call, contending that “the State wants you to hear what they
hear.” Therefore, the enhanced 911 call itself did not have a
significant inculpatory effect, and we cannot say that but for trial
counsel’s failure to raise an objection that may have required the
26
exclusion of the enhanced 911 call, there is a reasonable probability
that the outcome of the trial would have been different.
The other evidence against Appellant was very strong. Here,
there is eyewitness testimony from McKeda that Appellant shot
Zedekiah with a rifle. There was also significant evidence
undermining Appellant’s claim that someone in a black Dodge
Charger fought with and shot Zedekiah. Specifically, McKeda and
Sims testified that the couples fought prior to the shooting and that
the only people in Appellant’s home were the five adults; that there
was evidence of a struggle in the upstairs master bedroom; and that
ballistics evidence indicated that the shooter was likely standing
inside the home and shooting toward the direction of the front door.
Thus, Appellant cannot show a reasonable likelihood that the result
of his trial would have been different had trial counsel objected to
the State’s failure to qualify Jaglinski as an expert, as opposed to
based on the continuing witness rule. Accordingly, this claim fails.
See Isaac v. State, 319 Ga. 25, 32 (901 SE2d 535) (2024) (“Given the
strong evidence of Isaac’s guilt and the cumulative nature of his
27
potential trial testimony, there is not a ‘reasonable probability’ that
had Isaac testified along the lines that he testified at the motion for
new trial hearing, ‘the result of the proceeding would have been
different.’”); Mitchell v. State, 308 Ga. 1, 7 (838 SE2d 820) (2020)
(concluding no prejudice from counsel failing to introduce evidence,
in part because evidence of defendant’s guilt was overwhelming).
4. Appellant next asserts that the trial court abused its
discretion by admitting Sims’s prior inconsistent statement because
the State did not first afford Sims the opportunity to explain or deny
the substance of the statement pursuant to OCGA § 24-6-613 (b).16
The statement was a video-recorded interview Sims had with
investigators the day after the crime, a portion of which was played
for the jury.
16 OCGA § 24-6-613 (b) provides, in relevant part, that:
[E]xtrinsic evidence of a prior inconsistent statement by a
witness shall not be admissible unless the witness is first
afforded an opportunity to explain or deny the prior
inconsistent statement and the opposite party is afforded an
opportunity to interrogate the witness on the prior
inconsistent statement or the interests of justice otherwise
require.
28
At trial, Sims was questioned by the State about statements he
made regarding his version of events the night of the shooting.
Several times during his testimony, Sims responded that he did not
recall making specific statements to investigators because he was
under the influence of drugs during the interview. As a result, Sims’s
interview was admitted as a prior inconsistent statement through
the testimony of an investigator, over Appellant’s objection.
Appellant contends that the State failed to lay the appropriate
foundation for admitting Sims’s interview because it did not inquire
further into the conversation between Sims and investigators during
Sims’s testimony, nor was Sims afforded an opportunity at trial to
explain or deny any prior inconsistencies. Appellant also argues that
the trial court’s reliance on Murdock v. State, 299 Ga. 177, 179-180
(787 SE2d 184) (2016), for admitting Sims’s interview was misplaced
because, unlike in Murdock, Sims was only briefly questioned about
his interview with law enforcement.
We review a trial court’s evidentiary ruling for an abuse of
discretion. See Bridgewater v. State, 309 Ga. 882, 886 (848 SE2d
29
865) (2020). “A witness’s failure to remember making a statement
may provide the foundation for offering extrinsic evidence to prove
that the statement was made.” London v. State, 308 Ga. 63, 67 (838
SE2d 768) (2020) (cleaned up). Here, the State established the
foundation for offering Sims’s recorded interview with investigators
by asking Sims several times if he remembered making the
statements, to which he replied that he did not. And contrary to
Appellant’s contention, Sims’s failure to recall his interview relieved
the State from having to ask about specific statements Sims made
during the interview. See Bridgewater, 309 Ga. at 887 (holding that
a witness’s “unambiguous denial that he had ever spoken with
[another witness] — as well as his assertion that he did not recall
ever speaking with [the second witness] — obviated the need for the
prosecutor to ask [the first witness] about specific statements he
made to [the second witness] and provided sufficient foundation for
the State to present extrinsic evidence of such statements”).
Moreover, Appellant’s understanding of Murdock is inaccurate.
In Murdock, the witness could not recall her interview with an
30
investigator, so the court allowed testimony regarding the interview
to be introduced through the investigator. Here, like in Murdock,
Sims’s failure to recall the details of his interview with investigators
provided the foundation “for calling another witness to prove the
statement was made.” Murdock, 299 Ga. at 180 (cleaned up).
Therefore, because there was sufficient foundation laid under OCGA
§ 24-6-613 (b), the trial court did not abuse its discretion by
admitting Sims’s recorded interview as a prior inconsistent
statement. See Green v. State, 317 Ga. 250, 254-255 (892 SE2d 733)
(2023).
5. Appellant further argues that the trial court erred by
denying his motion to bifurcate the malice murder (Count 1) and
aggravated assault (Count 2) charges from the felon-in-possession
counts (Counts 4, 6, and 7). Count 4 served as the predicate for one
of Appellant’s felony murder counts (Count 5).17 Appellant asserts
that the felon-in-possession counts were not necessary predicates to
17 Appellant was also charged with an additional felony murder count
(Count 3), which was predicated on Count 2.
31
the malice murder charge and should have been bifurcated to allow
the jury to deliberate on the facts in question without considering
Appellant’s prior convictions. And, by trying the counts together, the
State was allowed to bring in Appellant’s prior conviction, which
otherwise would not have been introduced because Appellant did not
testify.
“This Court has held that, in cases where a felon-in-possession
firearm charge is unrelated to another count for which the defendant
is to be tried, the proceedings should be bifurcated so that the jury
will hear and decide the more serious charge(s) before learning
about the firearm charge and the defendant’s prior conviction.”
Brown v. State, 295 Ga. 804, 807 (764 SE2d 376) (2014) (cleaned up).
However, when the felon-in-possession count serves as the predicate
offense for felony murder, “the trial court should deny the motion to
bifurcate . . . .” See Charles v. State, 315 Ga. 651, 659 (884 SE2d 363)
(2023). Here, because Count 4 (felon-in-possession) was the
predicate for Count 5 (felony murder), the trial court did not err
when it denied Appellant’s motion to bifurcate as to Count 4.
32
Regarding Counts 6 and 7, pretermitting whether the trial
court erred in denying Appellant’s motion to bifurcate, we conclude
any such error was harmless.
The test for determining nonconstitutional harmless
error is whether it is highly probable that the error did
not contribute to the verdict. And in considering whether
a trial court’s error was harmful, we weigh the evidence
as we would expect reasonable jurors to have done so, as
opposed to assuming that they took the most pro-guilt
possible view of every bit of evidence in the case.
Lofton v. State, 309 Ga. 349, 356-357 (846 SE2d 57) (2020) (cleaned
up).
Appellant argues that the trial court’s denial of the motion to
bifurcate allowed the State to present evidence of his prior
conviction to the jury, which would not have been admissible
because he did not testify. However, Appellant overlooks the fact
that the jury would have been made aware of his prior conviction
because of Count 4, the predicate offense for Count 5. Thus,
regardless of whether Appellant chose to testify, the jury would have
known he was a convicted felon because of the felon-in-possession
charge in Count 4. Consequently, any error in the trial court’s denial
33
of the motion to bifurcate was harmless. See Walker v. State, 360
Ga. App. 211, 216 (860 SE2d 868) (2021).
6. Appellant contends that the trial court erred by refusing
to give jury instructions on voluntary manslaughter and mutual
combat. Appellant argues that the combination of witnessing his
wife being assaulted by McKeda, evidence indicating that Rose
informed 911 operators that Appellant was “fighting for his life” and
the severity of the events leading up to the shooting—so intense that
Sims felt compelled to leave—constituted sufficient provocation to
justify a charge 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.”
Jones v. State, 319 Ga. 140, 146 (902 SE2d 599) (2024) (cleaned up).
Determining if there is slight evidence to support the charge is a
question of law. See Wilkerson v. State, 317 Ga. 242, 247 (892 SE2d
737) (2023). To justify an instruction for voluntary manslaughter,
Appellant must show that the killing occurred “solely as the result
34
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). Based on the record, Appellant cannot make
that showing.
Although Appellant contends that the evidence demonstrates
his fear for both his own life and his wife’s, there is no indication
that Appellant was angry or inflamed by Zedekiah’s actions
immediately before the shooting. “And there was no other evidence
that the shooting was the result of a sudden, violent, and irresistible
passion.” Rayton v. State, 314 Ga. 29, 34 (875 SE2d 708) (2022).
Appellant does not “point to even slight evidence that he reacted
passionately to [Zedekiah’s] conduct rather than simply in an
attempt to defend himself.” Id. See also Collins v. State, 312 Ga. 727,
740 (864 SE2d 85) (2021) (concluding that a voluntary manslaughter
instruction was not warranted, emphasizing that while the victim
directed abusive language toward the defendant, there was no
evidence to suggest that the defendant was “angry or mad or that he
had any other response showing he might have reacted
35
passionately—only that he was scared and was defending himself .
. .”); Beck v. State, 310 Ga. 491, 497 (852 SE2d 535) (2020)
(concluding there was insufficient evidence to justify a jury
instruction on voluntary manslaughter, despite the defendant’s
testimony that he was “just scared” and acting in self-defense to
protect himself, his girlfriend, and her family when he shot the
victim); Tarpley v. State, 298 Ga. 442, 445 (782 SE2d 642) (2016)
(“Tarpley’s statements to police and trial testimony do not indicate
that he killed Estes out of some irresistible passion—whatever the
source of that passion—but, instead, that the killing occurred
because Tarpley was ‘very afraid’ of Estes that night; further, there
is no other evidence indicating that the shooting here arose out of
passion rather than fear.”). Therefore, the trial court did not err
when it failed to give a jury instruction on voluntary manslaughter.
Regarding Appellant’s claim that the jury should have been
instructed on mutual combat, Appellant failed to support this
contention with any argument, citation of authority, or citation to
the record. Thus, it is abandoned under Supreme Court Rule 22. See
36
Ga. Sup. Ct. R. 22.
7. Finally, Appellant summarily contends that “[c]ourts
have the right to examine the totality of circumstances and to void
convictions which are unjust. The interests of justice in [Appellant’s]
case demand it,” and Appellant “should be granted a new trial.”
Appellant does not cite State v. Lane, 308 Ga. 10, 17 (838 SE2d 808)
(2020), or provide any additional argument, but we will assume that
the above contention stands for the proposition that the combined
prejudicial effect of the trial court’s errors and trial counsel’s
deficiencies affected the outcome of his trial.
“To establish cumulative error a defendant must demonstrate
that at least two errors were committed in the course of the trial and
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.” Huff v. State, 315 Ga. 558,
567-568 (883 SE2d 773) (2023) (cleaned up). “When considering the
cumulative effect of presumed errors by trial counsel and the trial
court, this Court consider[s] collectively the prejudicial effect, if any,
37
of trial court errors, along with the prejudice caused by any deficient
performance of counsel.” Id. at 568 (cleaned up).
For the purposes of this analysis, we have assumed the
deficient performance of counsel in Divisions 3 (a) (agreeing to
stipulate to voluntariness) and 3 (b) (objecting to the State’s witness
on the incorrect basis) and the trial court’s error by failing to
bifurcate Counts 6 and 7 (felon-in-possession) from Count 1 (malice
murder) and Count 2 (aggravated assault) in Division 5. As we noted
above, the errors in question are not prejudicial or harmful
separately, and we conclude that they are not the kinds of errors
that would cause cumulative error even if considered together.
Particularly, the stipulation did not affect what evidence was
presented at trial because the trial court determined that
Appellant’s statement was voluntary without relying on the
stipulation. Regarding the enhanced 911 call, the jury was
instructed to rely on its own interpretation of the audio, and its
weight was limited by the remaining background noise and the lack
of clear indication of who was speaking in the background and what
38
was being said. Finally, the failure to not bifurcate was harmless
because the jury was going to hear about Appellant’s prior conviction
because of the felon-in-possession count that served as the predicate
for one of Appellant’s felony murder charges.
There was also compelling evidence supporting Appellant’s
guilt for the charged crimes. This includes eyewitness testimony
from McKeda and significant evidence undermining Appellant’s
claim that someone else shot Zedekiah. See Lofton, 309 Ga. at 367
(concluding that the “cumulative prejudicial effect of the actual and
assumed evidentiary errors and counsel’s deficiencies is not
sufficient to outweigh the strength of the properly admitted evidence
of [the defendant’s] guilt . . .”). Therefore, even if considered
together, the result of these assumed errors did not deny Appellant
a “fundamentally fair trial,” so the standard for cumulative error is
not met. See Lane, 308 Ga. at 21.
Judgment affirmed. All the Justices concur.
39