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: October 1, 2024
S24A0525. PIERCE v. THE STATE.
COLVIN, Justice.
Appellant Lavarr Rasheed Pierce appeals his convictions for
malice murder, arson in the first degree, and a violation of the Street
Gang Terrorism and Prevention Act (“Gang Act”) in connection with
the shooting death of Quincy Suggs. 1 On appeal, Appellant argues
1 Suggs was shot and killed on September 16, 2014. On October 21, 2015,
a Clayton County grand jury jointly charged Appellant, Khadijah Jenkins,
Frederick Rosenau, and Julius Lofton with malice murder (Count 1), felony
murder (Count 2), aggravated assault (Count 3), arson in the first degree
(Count 4), and violations of the Gang Act predicated on aggravated assault and
arson in the first degree (Counts 5 and 6, respectively). Pursuant to a
negotiated plea agreement, Lofton pled guilty to voluntary manslaughter as a
lesser offense of malice murder and testified against the other co-defendants
at their trial.
Appellant, Jenkins, and Rosenau were jointly tried before a jury from
November 13 through 27, 2017. The jury found Appellant guilty of Counts 1
through 5 and not guilty of Count 6, Jenkins guilty of Counts 3 and 5 and not
guilty of Counts 1, 2, 4, and 6, and Rosenau guilty of Counts 2, 3, and 5 and
not guilty of Counts 1, 4, and 6. The trial court sentenced Appellant to life
without the possibility of parole for malice murder (Count 1) and imposed
consecutive prison terms of 20 years and 15 years for Counts 4 and 5,
that the trial evidence was constitutionally insufficient to support
his convictions. He also raises numerous claims of trial court error,
prosecutorial misconduct, and ineffective assistance of counsel. For
the reasons below, we reject Appellant’s claims of error and affirm
his convictions.
1. This case arises from the killing of a “john” during his
visit to a house occupied by prostitutes and high-ranking gang
members. The trial evidence showed the following. The State’s gang
expert, Sergeant Brandon McKay, testified that the Luxiano gang
was a set of the Nine Trey Bloods gang. 2 He said that the gangs had
respectively. The court merged Appellant’s aggravated-assault charge (Count
3) with Count 1 for sentencing purposes. And although the court purported to
merge Appellant’s felony-murder count (Count 2) with Count 1, that count was
actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993).
Appellant filed a timely motion for new trial, and he amended and
supplemented the motion through new counsel. The trial court held hearings
on the motion for new trial on September 2, 2020, and on February 10, 2022.
On March 4, 2022, the trial court denied Appellant’s motion for new trial.
Appellant timely filed a notice of appeal directed to this Court, and the case
was docketed to this Court’s April 2024 term and submitted for a decision on
the briefs.
2 Sergeant McKay was qualified as an expert in gang investigations
based on his experience investigating hundreds of gang cases as part of the
F.B.I. Gang Task Force and the Clayton County Police Department’s Gang
Unit. He testified that he had personally investigated cases involving Nine
2
a rank structure, that Frederick Rosenau had “a very high rank” in
the Nine Trey Bloods with authority over the Luxiano set, and that
Julius Lofton, who started the Luxiano set, and Appellant were both
highly ranked members of the Luxiano set. He further testified that
the Nine Trey Bloods and the Luxiano set wore red clothing and
used specific hand signs to signal their gang affiliation. Referring to
a photograph introduced into evidence, he testified that Appellant
could be seen flashing one such hand sign alongside several other
known gang members.
Sergeant McKay testified that he had arrested Luxiano gang
members for many types of violent crimes, including armed
robberies. He said that members could get promoted within the gang
by committing armed robberies, and that the proceeds from armed
robberies went toward members’ monthly gang dues. He also said
that prostitution was one of the primary ways the Luxiano made
money, that almost every female associated with the group engaged
Trey Bloods in Clayton County, that he had participated in a three-and-a-halfyear-long investigation of the Luxiano gang, and that he had arrested more
than 20 Luxiano members for crimes including armed robberies and shootings.
3
in prostitution, and that members of the gang would sometimes use
prostitutes to lure victims to a location where gang members could
rob or carjack them.
Consistent with Sergeant McKay’s testimony, Lofton testified
that he had started the Luxiano gang as a set of the Nine Trey
Bloods, and that the Luxiano set had approximately 80 members at
its peak. Lofton said that Rosenau was the “low,” meaning Rosenau
was a Nine Trey Bloods member with a higher rank than Lofton
within the Nine Trey Bloods. Lofton further testified that he was the
“fourth floor,” the highest ranked leader of the Luxiano set, and that
Appellant and his brother were lower ranked Luxiano members,
with Appellant’s brother “unofficially” being the “third floor” and
Appellant being the “second floor.” Lofton said that Briana Davis
was the mother of his child, and that she worked for him as a
prostitute. Lofton also identified Jenkins as a Luxiano member who
dated Rosenau. And while Tequila Forehand, another Nine Trey
Bloods member, hesitated when asked if Jenkins worked for
Rosenau as a prostitute, she testified that Jenkins would “do
4
anything [Rosenau] asked her to” and that she had seen Jenkins
give money to Rosenau on more than one occasion.
Lofton testified that he was aware that Luxiano gang members
were robbing men who came to see female gang members engaged
in prostitution, and that Luxiano members paid him monthly dues,
which were turned over to higher ranking Nine Trey gang members.
Lofton further testified that he witnessed “the end part” of one such
robbery incident, in which two Luxiano members known as “Jabo”
and “Man-Man” robbed a man who had visited an apartment to
purchase sex from a female Luxiano known as “Jippy.” The robbery
victim in that incident testified that he had paid Jippy for sex on one
occasion, and that, when he visited her a second time, two men
robbed him at gunpoint.
As specifically relevant to the killing of Suggs, Lofton and
Davis each testified that they were staying at Jenkins’s mother’s
house with Rosenau and Jenkins for a period of time in September
2014, and that during that period Davis engaged in prostitution and
gave the money she earned to Lofton. Davis testified that Jenkins
5
was also engaging in prostitution in the house, and that Jenkins’s
earnings went to Rosenau.
Lofton testified that, on the night before Suggs’s death,
Appellant came to the house and talked to Lofton in Rosenau’s
presence about robbing the “johns” coming to the house for sex.
According to Lofton, he told Appellant that he “didn’t care if . . . it
went on,” and Rosenau did not say anything. Lofton testified that,
after the conversation, he went to sleep.
Davis testified that she had advertised her services online and
that Suggs had responded to her advertisement via text message,
asking to spend some time with her. They agreed to meet up, and,
on the morning of September 16, 2014, Suggs visited Jenkins’s
mother’s house, had sex with Davis, paid her, and then left. Davis
said that, later that morning, Suggs called her because he wanted to
come back “to chill,” and she invited him to come back with “[s]ome
weed.” In the meantime, Davis testified, Appellant arrived at
Jenkins’s mother’s house and went inside.
According to Davis, when Suggs arrived the second time,
6
Rosenau, Lofton, and Jenkins were asleep, and Appellant was the
only other person awake in the house. Davis testified that she went
outside to meet Suggs at his car, and Suggs asked to use the
bathroom in the house, which she gave him permission to do. Davis
said that, a few minutes after Suggs went inside the house, she
heard a gunshot.
Lofton also heard a gunshot, testifying that he “woke up to a
gunshot” and then ran out of the bedroom to see Appellant standing
with a gun in his hand “[r]ight next to” Suggs’s dead body, which
was lying face down on the floor near “a lot” of $20 bills. 3 According
to Davis, following the gunshot, Appellant came outside holding a
handgun, followed by Rosenau, Jenkins, and Lofton. Davis testified
that Appellant gave the gun to Rosenau. And according to both
Davis and Lofton, Appellant then drove away in his own car while
the rest of the group drove away in another car.
Lofton said that they drove to his brother’s apartment. Davis
3 Lofton later testified that Lofton “could have” startled Appellant when
Lofton came out of the bedroom, causing Appellant to fire the gun.
7
testified that, during the car ride, Rosenau said that Appellant
killed Suggs. 4 According to Lofton, Appellant came over to the
apartment later that day, asked Lofton if Lofton thought Jenkins
and Davis were going to say anything about the shooting, and told
Lofton that “[i]t was taken care of” and “we was going to be good.”
When asked about efforts to conceal the crime, Forehand testified
that Rosenau later told her that “the house was burnt down.”5 And
Lofton testified that he had pled guilty to voluntary manslaughter
in the case because his “gang related” “actions led up to the death of
[Suggs].”
At some point during the day of Suggs’s shooting, police officers
and firefighters were dispatched to Jenkins’s mother’s house, where
they discovered that the house was on fire and producing thick black
smoke. Firefighters entered the burning house to search for victims
and found Suggs’s dead body lying in the den area.
4 According to Forehand, however, Rosenau later told her “he had shot
[a] man in the back of the head” while inside Jenkins’s mother’s house.
5 Forehand further testified that Rosenau knew Jenkins planned to talk
to the police and that he told Forehand to “kill [Jenkins] if his name came up”
in connection with the shooting.
8
Based on Suggs’s injuries and the absence of soot in his
airways, a medical examiner concluded that Suggs had died before
the fire started from a single gunshot wound to the back of his neck
that was fired from “less than half an inch away” and that injured
his spine and fractured his jaw. And an arson investigation revealed
both that an accelerant had been used in the house and that the fire
had three separate points of origin.
2. Appellant contends that the trial evidence was
constitutionally insufficient to support his convictions for malice
murder, arson in the first degree, and a violation of the Gang Act.
We disagree.
“Evidence is sufficient as a matter of constitutional due process
if a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Payne v. State, 318 Ga. 249, 252-253 (2)
(897 SE2d 809) (2024) (citation and punctuation omitted). When
reviewing the sufficiency of the evidence, we “view[ ] the evidence in
the light most favorable to the verdict, with deference to the jury’s
assessment of the weight and credibility of the evidence.” Id. at 253
9
(2) (citation and punctuation omitted).
First, the trial evidence was constitutionally sufficient to
support Appellant’s malice-murder conviction. “A person commits
the offense of [malice] murder when he unlawfully and with malice
aforethought . . . causes the death of another human being.” OCGA
§ 16-5-1 (a). Here, Lofton testified that, right after hearing a
gunshot, he found Appellant standing with a gun over Suggs’s dead
body, and Davis testified that, after hearing a gunshot, she saw
Appellant exit the house with a gun. Thus, the evidence authorized
a jury finding that Appellant caused Suggs’ death. And the jury was
authorized to find that Appellant deliberately intended to kill Suggs
based on the medical examiner’s testimony that Suggs had been shot
through the back of his neck from “near contact range,” and the
testimony of Lofton and Davis that Appellant quickly fled the scene.
See Ford v. State, 319 Ga. 215, 218 (1) (903 SE2d 1) (2024) (holding
that, even though “there was money left behind at the scene of the
crime,” trial evidence showing that the victim “was shot in [the back
of] the head while [the appellant] was in the house and that [the
10
appellant] left the scene without rendering aid” “was plainly
sufficient to support [the appellant’s] murder conviction”); Moran v.
State, 302 Ga. 162, 164 (1) (b) (805 SE2d 856) (2017) (evidence of
malice murder was sufficient where, among other things, the
“appellant shot the victim in the back of the head at [close] range”).
The trial evidence was also constitutionally sufficient to
support Appellant’s arson conviction. “A person commits the offense
of arson in the first degree when, by means of fire or explosive, he or
she knowingly damages or knowingly causes, aids, abets, advises,
encourages, hires, counsels, or procures another to damage” a
“dwelling house of another without his or her consent.” OCGA § 16-7-60 (a) (1).
Here, the trial evidence authorized the jury to find Appellant
guilty of committing the arson of Jenkins’s mother’s house.
Specifically, the arson investigation showed that fires were set in
three separate locations around Jenkins’s mother’s house, while
Suggs’s dead body was inside, and that an accelerant had been used.
And Lofton’s testimony that Appellant met up with the rest of the
11
group later in the day and told Lofton that “[i]t was taken care of”
and “we was going to be good” supported an inference that Appellant
had set those fires to cover up evidence of the shooting. See Coleman
v. State, 301 Ga. 753, 754 (1) (804 SE2d 89) (2017) (sufficient
evidence to support malice-murder and arson convictions where the
evidence showed that the defendant and co-conspirators planned to
rob the victim; the defendant shot the victim, put the victim in the
trunk of a car, transported a gas can to and from the car’s location,
and then told the co-conspirators that things “had been taken care
of”; and the victim’s body was found inside the burning car). See also
Kitchens v. State, 310 Ga. 698, 699-701 (1) (854 SE2d 518) (2021)
(sufficient evidence of malice murder and arson where two victims
were found in a burning house stabbed to death, the house fire had
more than one point of origin, and the evidence showed that the
defendant had been inside the house and was romantically obsessed
with one of the victims); Parker v. State, 277 Ga. 439, 439 (1) (588
SE2d 683) (2003) (sufficient evidence of malice murder and arson
where the evidence showed that the victim died from gunshots to
12
the head before her mattress was intentionally set on fire and the
defendant was seen leaving the victim’s home before the house fire
was discovered).
Finally, the trial evidence was constitutionally sufficient to
prove that Appellant committed the charged violation of the Gang
Act predicated on the aggravated assault of Suggs with a deadly
weapon. The Gang Act makes it “unlawful for any person . . .
associated with a criminal street gang to . . . participate in criminal
gang activity through the commission of” certain enumerated
offenses. OCGA § 16-15-4 (a). To establish a violation of OCGA § 16-15-4 (a), the State is required to prove four elements:
(1) the existence of a “criminal street gang,” defined in
OCGA § 16-15-3 (3) as “any organization, association, or
group of three or more persons associated in fact, whether
formal or informal, which engages in criminal gang
activity”; (2) the defendant’s association with the gang; (3)
that the defendant committed any of several enumerated
criminal offenses, including those “involving violence,
possession of a weapon, or use of a weapon”; and (4) that
the crime was intended to further the interests of the
gang.
Rooks v. State, 317 Ga. 743, 753 (2) (893 SE2d 899) (2023) (citation
13
and punctuation omitted).
The trial evidence authorized the jury to find each of these
elements. First, ample trial evidence showed the existence of a
criminal street gang. Lofton, the founding member of the Luxiano
gang, and Sergeant McKay each testified that Lofton had started
the Luxiano gang as a set of the Nine Trey Bloods, that the Luxiano
had many members and a rank structure, and that gang members
were known to engage in various crimes, including armed robbery.
See Rooks v. State, 317 Ga. 743, 753 (2) (893 SE2d 899) (2023)
(holding that there was sufficient evidence showing the existence of
a criminal street gang where gang experts testified that “the
Gangster Disciples was a structured, ‘traditional’ gang and that
members committed an array of criminal activity, including drug
trafficking, fraud, robbery, assault, and murder”).
Second, the trial evidence showed that Appellant was a
member of the Luxiano gang, as Lofton and Sergeant McKay each
testified that Appellant was a highly ranked member of the gang,
and a photograph introduced into evidence showed several known
14
gang members with Appellant, who could be seen flashing a hand
sign known to signal affiliation with the gang. See Rooks, 317 Ga. at
753 (2) (holding that there was sufficient evidence of the defendant’s
association with the gang where the evidence showed that the
defendant “made hand signs associated with the Gangster
Disciples”).
Third, the trial evidence showed that Appellant had committed
an enumerated criminal offense, namely, the aggravated assault
with a deadly weapon of Suggs. Specifically, Lofton’s testimony that
Appellant talked about wanting to rob the “johns” visiting Jenkins’s
mother’s house, together with the testimony of Lofton and Sergeant
McKay that members of Appellant’s gang were known to commit
armed robberies of “johns,” authorized a jury finding that Appellant
planned to commit an armed robbery of a “john” at Jenkins’s
mother’s house. Davis’s testimony that Suggs had paid her for sex
at Jenkins’s mother’s house supported a finding that Suggs was one
such “John.” And Lofton’s testimony that he found Appellant
standing with a gun over Suggs’s dead body and many $20 bills
15
authorized a jury finding that Appellant had committed an
aggravated assault of Suggs by shooting him in the process of
committing a robbery. See Hayes v. State, 298 Ga. 339, 343-344 (b)
(781 SE2d 777) (2016) (holding that there was sufficient evidence
that the appellant’s co-defendants committed aggravated assaults
where the co-defendants “intentionally fir[ed] guns at [three people]
without justification — striking and killing [one of them]”).
Finally, the jury was authorized to find that the aggravated
assault was intended to further the gang’s interests. Specifically,
Lofton’s and Sergeant McKay’s testimony showed that gang
members were known to commit armed robberies of “johns,” and
Sergeant McKay testified that the proceeds from armed robberies
helped gang members pay their monthly gang dues. See Butler v.
State, 310 Ga. 892, 897-898 (1) (b) (855 SE2d 551) (2021) (holding
that there was sufficient evidence that shootings were committed
with an intent to further the gang’s interests where “there was
evidence that the gang used prostitution and robbery of ‘johns’ to
finance the gang and that the shootings resulted from that sort of
16
activity”); Stripling v. State, 304 Ga. 131, 134 (1) (b) (816 SE2d 663)
(2018) (holding that there was sufficient evidence that the crime was
intended to further the gang’s interests where “[a] gang expert
testified that the gang ma[de] most of its money through armed
robberies, including robberies of drug dealers like” the one at issue
in the case). Accordingly, this claim of error fails.
3. Appellant argues that the trial court abused its discretion
under OCGA § 24-4-403 (“Rule 403”) in allowing the State’s gang
expert, Sergeant McKay, to give testimony at trial. See OCGA § 24-4-403 (providing that “[r]elevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice”). According to Appellant, none of Sergeant McKay’s
testimony had probative value because there was “no evidence” that
any of the crimes were “gang-related or gang-motivated,” and
Sergeant McKay’s testimony about Appellant’s gang membership
was “highly prejudicial” because it put Appellant’s character at
issue.
Appellant has not shown that any unfair prejudice from
17
Sergeant McKay’s testimony substantially outweighed the
testimony’s probative value. As explained in the prior division, and
contrary to Appellant’s argument, there was evidence that the
crimes were gang related, and Sergeant McKay’s testimony was
probative as to each element of the Gang Act charge, helping prove
the existence of the Luxiano gang and that Appellant was a member
of the gang, was motivated to commit an enumerated offense, and
committed the offense with the intent to further the gang’s interests.
Appellant claims that Sergeant McKay’s testimony about his
gang membership in particular was highly prejudicial. But to the
extent that Sergeant McKay’s testimony helped establish
Appellant’s gang membership — an element of a Gang Act violation
— it was prejudicial only in the sense that it was inculpatory. See
Henderson v. State, 317 Ga. 66, 74 (3) (891 SE2d 884) (2023) (noting
that “all incriminating evidence is [prejudicial]” and that “[u]nfair
prejudice generally refers to the tendency of evidence to lure the
factfinder into declaring guilt on a ground different from proof
specific to the offense charged, or to suggest decision on an improper
18
basis” (citation and punctuation omitted; emphasis supplied). See
also Jackson v. State, 306 Ga. 706, 710 (2) (832 SE2d 809) (2019)
(holding that certain “evidence was not improper character
evidence” but rather “showed [the defendant’s] association with the
Bloods and was, therefore, vital to the State’s case regarding the
Street Gang Act allegations”); Lupoe v. State, 300 Ga. 233, 245 (8)
(794 SE2d 67) (2016) (noting that “evidence of [the defendant’s] prior
participation in gang activities was directly relevant to an element
of the State’s case [regarding a charged Gang Act violation] and did
not constitute improper character evidence when admitted for that
limited purpose”). And even assuming that Sergeant McKay’s
testimony about Appellant’s gang membership somehow suggested
that Appellant had a propensity to commit violence, any risk of
unfair prejudice from such testimony did not substantially outweigh
its probative value. Because Sergeant McKay was one of only two
witnesses who could confidently say that Appellant was a Luxiano
gang member, and the State could not prove that Appellant violated
the Gang Act without evidence establishing Appellant’s association
19
with the gang, the probative value of Sergeant McKay’s testimony
was high. Accordingly, Appellant has not shown that the trial court
abused its discretion in permitting Sergeant McKay to testify.
4. Appellant argues that the trial court abused its discretion
in admitting testimony from the State’s gang expert, Sergeant
McKay, about other gang members’ prior bad acts, when those other
gang members did not testify about those acts at Appellant’s trial.
According to Appellant, such testimony violated Appellant’s rights
under the Confrontation Clause of the Sixth Amendment to the
United States Constitution, which prohibits the admission of
“testimonial” statements against a criminal defendant unless the
declarant is “unavailab[le]” to testify and the defendant had “a prior
opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 68 (124 SCt 1354, 158 LE2d 177) (2004). See also U. S.
Const., Amend. VI (providing that, “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against him”).
For support, Appellant cites Kirby v. United States, 174 U.S.
20
47 (19 SCt 574, 43 LE 890) (1899), which held that the Confrontation
Clause prohibits the government from admitting the records of
conviction of non-testifying third parties as a substitute for
testimony against a defendant to establish an element of a criminal
charge against the defendant. See id. at 60-61. And Appellant also
cites State v. Jefferson, 302 Ga. 435 (807 SE2d 387) (2017), which
relied on Kirby to hold “that OCGA § 16-15-9[6] is unconstitutional
on its face to the extent that it authorizes the admission of the
[records of] convictions of non-testifying non-parties as evidence of a
criminal street gang.” Id. at 437, 440-441. According to Appellant,
“Kirby is controlling in this case[.]”
Here, we are unable to meaningfully analyze the merits of
Appellant’s claim because we cannot clearly discern what the claim
is, based on Appellant’s citations to the record and his arguments.
6 In relevant part, OCGA § 16-15-9 provides:
For the purpose of proving the existence of a criminal street gang
and criminal gang activity, the commission, adjudication, or
conviction of any offense enumerated in paragraph (1) of Code
Section 16-15-3 by any member or associate of a criminal street
gang shall be admissible in any trial or proceeding.
21
Although Appellant alleges that the Confrontation Clause
prohibited Sergeant McKay from testifying about non-testifying
gang members’ prior bad acts, Appellant has not specifically
identified the testimony from Sergeant McKay that he contends was
objectionable under the Confrontation Clause. Rather, Appellant
cites as objectionable 133 out of the 134 pages of the trial transcript
on which Sergeant McKay’s testimony appears. As described above,
Sergeant McKay’s testimony touched on a wide variety of matters,
and he testified about gang members’ conduct at different levels of
generality, addressing, among other things, the gang’s general mode
of operation, general categories of crimes engaged in by gang
members, and investigations of specific gang-related crimes.
It is not self-evident which testimony in particular Appellant
contends violated the Confrontation Clause. This is particularly true
because, although Appellant’s reliance on Kirby and Jefferson
suggests that the target of his Confrontation Clause challenge may
be the admission of certified copies of gang members’ convictions
introduced through Sergeant McKay, it does not appear that the
22
State introduced any records of conviction through Sergeant
McKay.7 Further, although Appellant makes a vague assertion that
unspecified testimony from Sergeant McKay about other gang
members’ prior criminal conduct was improper because that
testimony should have instead “come in through the [non-testifying]
gang member(s),” he does not argue that Sergeant McKay’s
testimony was based on statements made by those non-testifying
gang members. Nor does he include any meaningful analysis
explaining why any statements by non-testifying gang members
that Sergeant McKay may have relied on were testimonial in nature,
such that their admission through Sergeant McKay violated the
Confrontation Clause.
“It is not this Court’s job to cull the record on behalf of [an]
[a]ppellant to find alleged errors[.]” Henderson v. State, 304 Ga. 733,
739 (4) (822 SE2d 228) (2018) (citation and punctuation omitted).
Because Appellant has not “specifically identif[ied] the objectionable
7 Notably, the trial court found that Sergeant McKay did not testify about
criminal convictions when it denied Appellant’s motion for new trial on this
ground, and Appellant has not pointed us to any such testimony.
23
testimony,” has not “include[d] any meaningful legal analysis,” and
“simply makes vague assertions of error and cites to [one large]
chunk[ ] of the transcript,” he “is not entitled to a review of th[is]
claim[ ].” Id.
5. Appellant contends that the trial court abused its
discretion under OCGA § 24-4-404 (b) (“Rule 404 (b)”) and Rule 403
when it admitted a robbery victim’s testimony. As noted above, the
robbery victim testified that, in January 2015, he was robbed at
gunpoint by two men when visiting a woman from whom he had
previously purchased sex. And Lofton, who testified that he was
present for part of the robbery incident, identified the woman and
two men who participated in the robbery as Luxiano gang members
who were not on trial. As explained below, we conclude that the trial
court did not abuse its discretion in admitting the robbery victim’s
testimony.
Rule 404 (b) provides in relevant part that “[e]vidence of other
crimes, wrongs, or acts shall not be admissible to prove the character
of a person in order to show action in conformity therewith.” This
24
rule applies only to “extrinsic evidence” of other crimes, wrongs, or
acts. Heade v. State, 312 Ga. 19, 24 (3) (860 SE2d 509) (2021).
“[I]ntrinsic evidence” of a charged offense is not subject to Rule
404 (b) and “remains admissible even if it incidentally places the
defendant’s character at issue.” Id. at 24-25 (3) (citation and
punctuation omitted).
“The line between extrinsic and intrinsic evidence is not always
a bright one,” but, as a general matter, “intrinsic evidence” refers to
“direct evidence of the charged crime,” as opposed to “evidence of
other crimes.” Roberts v. State, 315 Ga. 229, 236 (2) (a) (880 SE2d
501, 506 (2022) (citation and punctuation omitted; emphasis in
original). And in the Gang Act context, where the State is required
to prove the existence of a criminal street gang that engages in
certain enumerated offenses that constitute “criminal gang
activity,” we have clarified that evidence that the defendant or other
members of his gang committed an offense constituting “criminal
gang activity” is “directly relevant to an element of the State’s case
and d[oes] not constitute improper character evidence [subject to
25
Rule 404 (b)] when admitted for that limited purpose.” Lupoe, 300
Ga. at 245 (8) (citation and punctuation omitted). See also Jackson,
306 Ga. at 710 (2) (holding that evidence showing the defendant’s
association with a gang “was not improper character evidence” but
instead direct evidence of an element of the Gang Act charge);
Anthony v. State, 303 Ga. 399, 409 (8) (811 SE2d 399) (2018) (“[The
defendant] was charged with violating the Street Gang Act, so
evidence of his participation in gang activities . . . was direct
evidence of an essential part of several of the offenses with which he
was charged.”).
Here, assuming without deciding that this enumeration of
error is preserved for ordinary appellate review, Appellant has not
shown that the trial court abused its discretion in admitting the
robbery victim’s testimony. The State sought to introduce evidence
of other gang members’ crimes as intrinsic evidence directly relevant
to the elements of a Gang Act violation, including the existence of a
criminal street gang that engaged in criminal gang activity by
committing certain enumerated offenses. See OCGA § 16-15-4 (a);
26
Rooks, 317 Ga. at 753 (2) (describing the elements of a Gang Act
violation). And the trial court ruled that evidence of criminal gang
activity would be admissible for that purpose.8
The robbery victim’s testimony was key, intrinsic evidence
relied on by the State to establish that the Luxiano gang engaged in
criminal gang activity. Although Sergeant McKay and Lofton
testified that they were aware of Luxiano gang members robbing
“johns” and Lofton testified that he had witnessed “part” of the
incident that the robbery victim testified about, the robbery victim’s
testimony helped establish that gang members had in fact
committed an armed robbery. Thus, the robbery victim’s testimony
was intrinsic evidence that was “directly relevant” to the Gang Act
charge, and it was admissible for that purpose notwithstanding Rule
404 (b). Lupoe, 300 Ga. at 245 (8).
8 In its pretrial ruling, the trial court indicated that it would “give
limiting instructions” informing the jury that evidence of prior gang activity
“can’t be used for character” if “requested.” But defense counsel did not request
a limiting instruction when the robbery victim testified, the trial court did not
give a limiting instruction, and Appellant has not argued on appeal that the
failure to give a limiting instruction was plain error.
27
Appellant argues that the trial court nevertheless abused its
discretion in admitting the robbery victim’s testimony because it
should have been excluded under Rule 403. “[I]ntrinsic evidence
must satisfy [Rule 403],” Johnson v. State, 312 Ga. 481, 491 (4) (863
SE2d 137) (2021), which provides in relevant part that “[r]elevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice,” OCGA § 24-4-403.
“[E]xclusion of evidence under Rule 403 is an extraordinary remedy
which should be used only sparingly.” Salvesen v. State, 317 Ga. 314,
317 (2) (893 SE2d 66) (2023) (citation and punctuation omitted). And
when we review a trial court’s admission of evidence under Rule 403,
“we look at the evidence in a light most favorable to its admission,
maximizing its probative value and minimizing its undue
prejudicial impact.” Id. (citation and punctuation omitted).
Here, Appellant has not shown that any unfair prejudice from
the robbery victim’s testimony substantially outweighed its
probative value. Appellant argues that he was unfairly prejudiced
by the testimony because it suggested that he “had a propensity to
28
commit crimes and therefore committed a crime in the instant case.”
But the trial evidence clearly established that Appellant had not
participated in the armed robbery that was the subject of the
robbery victim’s testimony. Thus, although the robbery victim’s
testimony might have reflected poorly on the robbers’ propensity to
commit armed robberies — an issue that was irrelevant to the
charges against Appellant and nonprejudicial to him — it did not
support an inference that Appellant personally had a propensity to
commit such crimes. And as a result, any risk of unfair prejudice
was low.
Although “gang evidence may be prejudicial” as a general
matter, “it is only when unfair prejudice substantially outweighs
probative value that Rule 403 permits exclusion.” Butler, 310 Ga. at
898 (2) (citation, punctuation, and emphasis omitted). And here,
Appellant has not shown that the low risk of unfair prejudice
substantially outweighed the probative value of the evidence, which
as explained above, was a key piece of the State’s case that the gang
had engaged in criminal gang activity. See id. See also Johnson v.
29
State, 312 Ga. 481, 493 (4) (863 SE2d 137) (2021) (concluding that,
because evidence of a prior bad act had “significant probative value”
in establishing a connection between the appellant, his gang
affiliation, and the charged crimes, “it was not a matter of scant or
cumulative probative force, dragged in by the heels for the sake of
its prejudicial effect.” (citation and punctuation omitted)).
6. Appellant argues that the trial court abused its discretion
in failing to conduct an inquiry to determine whether a juror who
was found sleeping for a portion of the trial should have been
removed. As explained below, however, this enumeration of error is
not preserved for appellate review.
The record shows that, on the first day of trial, the court
informed trial counsel that a juror had been sleeping after lunch,
that the court, through the bailiff, had advised the juror that he
needed to stay awake, and that the bailiff was getting the juror
water and coffee. Appellant’s counsel stated, “All right. So, we’ll
monitor the situation.” And the court agreed, saying, “We’ll keep an
eye on it.” The record does not indicate that the problem persisted
30
or that any further action was taken. And at the motion-for-newtrial hearing, trial counsel testified that the juror fell asleep only
once, and that there was no need to approach the juror about the
issue again.
Appellant argues that, “[o]ut of an abundance of caution,” the
trial court should have conducted an inquiry into the reason the
juror was sleeping, how much testimony the juror had missed, and
whether the juror was unable to perform his required duties. This
claim of trial-court error “is not preserved for our review because
[Appellant] did not raise any objection below to the trial court’s
handling of the juror issue,” and “this is not the kind of alleged error
for which plain-error review is available.” Clark v. State, 315 Ga. 1,
5 (2) (b) (880 SE2d 201) (2022) (addressing a claim that the trial
court should have sua sponte investigated a juror-misconduct issue).
See also Mathis v. State, 293 Ga. 837, 838 (2) (750 SE2d 308) (2013)
(holding that a challenge to the trial court’s failure to question a
sleeping juror was “waived” where “counsel made no
contemporaneous request for the trial court to conduct an inquiry
31
and later declined to move to excuse the juror”).
7. Appellant argues that the trial court abused its discretion
in failing to grant a motion for mistrial based on improper remarks
made by the prosecutor during closing arguments. We disagree.
Although closing arguments were not transcribed, the record
reflects that Appellant joined Jenkins’s motion for mistrial when,
according to Jenkins’s counsel, the prosecutor improperly
commented on the defendants’ right to remain silent by talking
about “Rosenau[ ] not coming forward, not calling the police, [and]
not talking to the police.” The trial court denied the motion but gave
a curative instruction, charging the jury as follows:
Members of the jury, the Prosecutor made some remarks
during their closing right before the break we just took in
which you might draw an inference that there was
something required of the Defendants to say or do prior
to, during, and after the incident in question. I will
instruct you now, and I will instruct you again during the
charge conference (sic) later on that the Defendants are
not required to present anything – no evidence, no
testimony, anything through themselves or through
others. And, you will draw no inference, harmful to any of
the Defendants, for their failure to make any comments
or do anything that was stated prior to this case. No
comments that they didn’t make prior to, during, or after,
32
nor their right to testify in this case. And, I’ve already
cautioned, admonished the Prosecutor, not to pursue that
line of argument going forward.
Following this instruction, Appellant renewed his motion for
mistrial, and the trial court denied it.
The record indicates that, later in the State’s closing argument,
the prosecutor made some comments about sentencing, although it
is difficult to discern precisely what was said because closing
arguments were not transcribed. First, in an apparent reference to
a remark about Davis, Appellant’s counsel objected that it was “not
in evidence that she’s getting off scott free,” and the court instructed
the jury that “[t]here’s no evidence she’s getting off scott free.
Remember what you heard, the testimony, ladies and gentlemen.”
Second, the record suggests that the prosecutor may have made
remarks about his intention to indict Davis in the future, to revoke
Lofton’s plea deal due to false testimony, and to obtain a longer
sentence for Lofton. Appellant’s counsel objected to these remarks,
arguing that the court needed to instruct the jury that it must make
its findings based on the evidence and not any future prosecution.
33
The trial court then instructed the jury “that testimony of leniency
must be based upon the evidence that you heard in this trial during
the testimony from the witness stand, and not about what might
happen in the future.” Defense counsel did not object to this curative
instruction or move for a mistrial based on any statements the
prosecution may have made about sentencing matters.
Appellant’s argument that the trial court abused its discretion
in failing to grant a mistrial fails. First, even assuming that the
prosecutor’s comments about Rosenau constituted improper
comments about Appellant’s silence, Appellant has not shown that
the trial court abused its discretion in denying his motion for a
mistrial on that ground. “A trial court has broad discretion to grant
a mistrial and may consider less drastic alternatives.” Jackson v.
State, 317 Ga. 139, 145 (2) (891 SE2d 878) (2023). Further, a “trial
court’s exercise of its discretion will not be disturbed on appeal
unless a mistrial is essential to preserve the defendant’s right to a
fair trial.” Monroe v. State, 315 Ga. 767, 775 (2) (884 SE2d 906)
(2023) (citation and punctuation omitted).
34
Here, the trial court promptly rebuked the prosecutor in the
jury’s presence and issued a curative instruction, charging the jury
that they were prohibited from drawing any negative inference from
the defendants’ failure to make comments or to testify. We presume
that jurors follow curative instructions, and Appellant has not
pointed to any evidence suggesting that the jury disregarded the
court’s instruction. See Parker v. State, 309 Ga. 736, 738-739 (2) (848
SE2d 117) (2020) (holding that the trial court properly denied a
motion for mistrial after a witness improperly commented on a
defendant’s silence because the comment was made in passing, the
court instructed the jury to disregard the comment, and the
defendant provided no evidence that the jury disregarded the
curative instruction); Jones v. State, 305 Ga. 750, 755 (3) (827 SE2d
879) (2019) (same).
Nor is Appellant entitled to relief on his contention that the
prosecutor’s remarks about sentencing warranted a mistrial.
Although Appellant objected to the prosecutor’s comments about
sentencing and requested a curative instruction (which he received),
35
he did not move for a mistrial based on those comments.
Accordingly, this claim of error is not preserved for appellate review.
See Kessler v. State, 311 Ga. 607, 612-613 (3) (858 SE2d 1) (2021)
(holding that, where a defendant had objected and moved for a
mistrial based on a prosecutor’s initial comments about sentencing
but only objected to the prosecutor’s subsequent comments about
sentencing, the defendant’s argument that the trial court erred in
failing to grant a mistrial was not preserved with respect to the
latter comments).
8. Citing Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10
LE2d 215) (1963), Appellant argues that the State violated his due
process rights by failing to disclose an immunity agreement it had
with Davis. But as explained below, the trial court found that no
such immunity agreement existed, and Appellant has not shown
that the trial court’s finding was clearly erroneous.
Under Brady, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment.” Brady, 373
36
U.S. at 87. “This includes the suppression of impeachment evidence
that may be used to challenge the credibility of a witness.” Danforth
v. Chapman, 297 Ga. 29, 29 (2) (771 SE2d 886) (2015) (citing Giglio
v. United States, 405 U.S. 150, 154-155 (92 SCt 763, 31 LE2d 104)
(1972)). Accordingly, “the State is under a duty to reveal any
agreement, even an informal one, with a witness concerning
criminal charges pending against that witness.” State v. Thomas,
311 Ga. 407, 414 (3) (858 SE2d 52) (2021) (citation and punctuation
omitted).
A Brady claim requires a defendant to show that (1) “the State
possessed evidence favorable to the defendant,” (2) “the defendant
did not possess the evidence nor could he obtain it himself with any
reasonable diligence,” (3) “the prosecution suppressed the favorable
evidence,” and (4) “had the evidence been disclosed to the defense, a
reasonable probability exists that the outcome of the proceeding
would have been different.” Thomas, 311 Ga. at 414 (3) (citation and
punctuation omitted). “We review the trial court’s factual findings
regarding a Brady claim under the clearly erroneous standard,” id.,
37
“meaning we accept the court’s factual findings if there is any
evidence to support them.” Price v. State, 313 Ga. 578, 582 (872 SE2d
275) (2022). Cf. State v. Rosenbaum, 305 Ga. 442, 449 (2) (826 SE2d
18) (2019) (noting that, when a trial judge sits as the trier of fact and
hears evidence, “his findings based upon conflicting evidence are
analogous to the verdict of a jury and should not be disturbed by a
reviewing court if there is any evidence to support them” (citation
and punctuation omitted)).
The record in this case contains conflicting evidence about
whether Davis was offered immunity in exchange for her testimony
at Appellant’s trial. Some evidence in the record points to the
possible existence of an immunity agreement. For example, at a
post-trial hearing, Appellant’s trial counsel testified that he believed
Davis had testified at Appellant’s trial pursuant to an immunity
agreement with the State. And the prosecutor who handled
Appellant’s trial testified that he had told Davis, “[A]s long as you
tell the truth you’ve got nothing to worry about.” But other evidence
in the record suggested that no such agreement existed. Specifically,
38
when asked directly if Davis was “offered any immunity for her
testimony,” the prosecutor unequivocally testified, “No, she was
not.” And when questioned at trial, Davis did not say she had an
immunity agreement but instead testified that she “didn’t have a
choice” about whether to testify because she “was subpoenaed,” that
no one had told her she could be charged with murder in connection
with the case, and that she did not know whether Lofton’s plea
agreement provided that she would not be charged. Finally, some
evidence in the record could cut both ways — suggesting both the
existence and the nonexistence of an immunity agreement. For
example, Davis testified at trial that she was “not sure” whether she
could be charged with murder in connection with the case. The
prosecutor testified that, “in [his] mind,” he “basically” had “made a
deal with [Davis]” that he would not indict her if she told the truth.
And the attorney who represented Davis during her subsequent
prosecution for crimes in connection with Suggs’s death testified
that Davis was under a “mistaken impression” that she would be
granted immunity if she testified at Appellant’s trial.
39
In denying Appellant’s motion for new trial, the trial court
concluded that Appellant’s Brady claim failed because he had not
established the existence of an immunity agreement between Davis
and the State. And because the record includes evidence supporting
the trial court’s finding that no immunity agreement existed —
including the prosecutor’s testimony that Davis was not offered
immunity and Davis’s testimony indicating that she was only
testifying because she had been subpoenaed, not because she had a
deal with the State — the trial court did not clearly err. See Strother
v. State, 305 Ga. 838, 849-850 (6) (828 SE2d 327) (2019) (affirming
a trial court’s finding that no plea agreement existed between the
State and a witness where, among other things, “[the witness] and
her counsel asserted that the State had tacitly offered her a plea
deal before [the] [a]ppellant’s trial[ ] in exchange for her truthful
testimony against [the [a]ppellant,” but the prosecutors testified
“that they had not made a plea offer to [the witness] before [the]
[a]ppellant’s trial”). Accordingly, this claim fails.
9. Appellant challenges the denial of his motion to recuse
40
the trial court judge, Judge Robert Mack, from presiding over his
motion for new trial. This claim fails.
By way of background, after Appellant’s trial, the State
charged Davis with several crimes related to Suggs’s death. Davis
pled guilty to one Gang Act violation and aggravated assault before
the same trial judge who had presided over Appellant’s trial, and
she received a sentence of 20 years in prison with ten to serve.
Following Davis’s conviction, Appellant’s counsel filed a motion
to recuse the trial judge from Appellant’s motion for new trial based
on his involvement with Davis’s case. The motion to recuse was
reassigned to another judge, who held a hearing on the matter. At
the hearing, Appellant’s trial counsel testified that, after Appellant’s
trial, the trial judge indicated that he thought Davis should be
prosecuted, telling defense counsel and the prosecutor that Davis
had helped set up the robbery that led to the murder and that she
should not have received leniency. Similarly, the prosecutor from
Appellant’s trial testified that the trial judge asked if the prosecutor
planned to indict Davis and said prosecuting her might give Suggs’s
41
family some closure. Further, a prosecutor who did not work on
either Appellant’s case or Davis’s case, testified that, sometime after
Appellant’s trial, the trial judge had “stopped [the prosecutor]” in a
hallway outside of the judges’ chambers, “asked [him] if [he] knew
anything about [Appellant’s] case,” and “brought up Briana Davis,”
saying “[I]f you can get the Briana Davis case [transferred] in front
of me[,] I’ll make sure she gets ten years.”9
Following the hearing, the judge presiding over the recusal
motion denied the motion. The judge concluded that the trial judge’s
statement to the prosecution and defense after Appellant’s trial and
his ex parte statement to another prosecutor “may indicate that [the
trial judge] formed an opinion that Ms. Davis was involved in the
underlying murder.” But because the trial judge had formed that
opinion based on his involvement with Appellant’s case, the judge
9 The prosecutor reported the hallway incident to Davis’s counsel, and,
knowing about that incident, Davis’s counsel chose not to file a motion to recuse
the trial judge from Davis’s case. The record in this case does not suggest that
the prosecution played any role in getting Davis’s case reassigned to the trial
judge who presided over Appellant’s case. Instead, it appears that the case was
automatically reassigned under the rules of case assignment because Davis’s
charges and Appellant’s charges concerned the same victim.
42
found that Appellant had “failed to introduce evidence that [the trial
judge] received information from an extra-judicial source that
resulted in bias or prejudice against [Appellant].” Accordingly, the
judge concluded that the trial judge did not need to be disqualified
from presiding over Appellant’s motion for new trial.
We review a trial court’s ruling on a recusal motion for an
abuse of discretion. See Mondy v. Magnolia Advanced Materials,
Inc., 303 Ga. 764, 768 (2) (815 SE2d 70) (2018). To require
disqualification of a judge, “[an] alleged bias must stem from an
extra-judicial source and result in an opinion on the merits on some
basis other than what the judge learned from his participation in
the case.” Barnett v. State, 300 Ga. 551, 554 (2) (796 SE2d 653)
(2017) (citation and punctuation omitted). Further, “[t]he alleged
bias of the judge must be of such a nature and intensity to prevent
the defendant from obtaining a trial uninfluenced by the court’s
prejudgment.” Id. (citation and punctuation omitted).
Here, the record supported the findings made by the judge who
presided over the motion to recuse. And although Appellant asserts
43
that the court should have granted his motion to recuse “[b]ased on
the testimony at the [m]otion to [r]ecuse [hearing],” he has not
pointed us to any testimony suggesting that the trial judge had a
bias toward Appellant (as opposed to Davis), much less a bias toward
Appellant stemming from some extra-judicial source. Accordingly,
this claim fails. See Heidt v. State, 292 Ga. 343, 347-348 (3) (736
SE2d 384) (2013) (rejecting an argument that a trial judge needed
to be disqualified based on his involvement in matters “directly
related to [the defendant’s] case”).
10. Appellant contends that the State engaged in
prosecutorial misconduct by allowing Davis to testify falsely at trial
without correction. We disagree.
“The knowing use of material, false evidence by the State in a
criminal prosecution violates due process, even where the falsehood
bears upon the witness’s credibility rather than directly upon the
defendant’s guilt.” Harris v. State, 309 Ga. 599, 607 (2) (c) (847 SE2d
563) (2020) (citation and punctuation omitted). “[W]hen a defendant
alleges a factually specific claim of prosecutorial misconduct, the
44
defendant must show actual misconduct and demonstrable
prejudice to his right to a fair trial in order to reverse his conviction.”
Horton v. State, 310 Ga. 310, 326 (4) (849 SE2d 382) (2020) (citation
and punctuation omitted). To establish actual misconduct, he must
show that “the prosecutor knowingly used perjured testimony or
failed to correct what he subsequently learned was false testimony,”
and that “such use was material [in] that there is a[ ] reasonable
likelihood that the false testimony could have affected the
judgment.” Harris, 309 Ga. at 607 (2) (c) (citation and punctuation
omitted).
The record in this case shows that Davis’s testimony about the
events surrounding Suggs’s murder generally tracked the written
statement she had given to the police before trial. But the trial
transcript suggests that the prosecutor was surprised by Davis’s
testimony about certain other matters (such as her purported lack
of knowledge about the co-defendants’ gang affiliations). As to those
matters, the prosecutor repeatedly impeached Davis based on her
prior statements to him. When asked at a post-trial hearing about
45
Davis’s trial testimony, the prosecutor from Appellant’s trial
testified that Davis had “completely backtracked” on certain of her
pretrial statements, that he “fe[lt] like [she] was obviously lying on
the stand,” and that he had treated her as a hostile witness at trial
and impeached her with her prior statements.
Based on this record, Appellant’s claim of prosecutorial
misconduct fails. Appellant asserts that the prosecution allowed
Davis to testify falsely at trial, but he has not pointed us to any
evidence in the record showing that the prosecutor knowingly
elicited false testimony from Davis. Nor has he identified any
evidence suggesting that the prosecutor allowed false testimony to
stand without correction. And the record shows just the opposite —
that the prosecutor was surprised to hear Davis give false testimony
about certain matters and that he repeatedly attempted to correct
the record by impeaching her with her prior statements.
Accordingly, Appellant has not established any “actual misconduct”
on the part of the prosecution. Horton, 310 Ga. at 326 (4) (citation
and punctuation omitted). See McClesky v. State, 245 Ga. 108, 113
46
(5) (263 SE2d 146) (1980) (noting that the prosecutor had not
knowingly failed to correct false testimony where the prosecutor put
a “prior impeaching statement . . . before the jury on direct
examination”).
11. Finally, Appellant raises two ineffective-assistance-ofcounsel claims. To establish constitutionally ineffective assistance
of counsel, “a defendant must show that his counsel’s performance
was professionally deficient and that, but for such deficient
performance, there is a reasonable probability that the result of the
trial would have been different.” Monroe, 315 Ga. at 781 (6) (citing
Strickland v. Washington, 466 U.S. 668, 687 (II) (104 SCt 2052, 80
LE2d 674) (1984)). To prove deficient performance, 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.” Beltran-Gonzales v.
State, 317 Ga. 168, 173 (3) (891 SE2d 801) (2023) (citation and
punctuation omitted). “There is a strong presumption that counsel’s
representation was within the wide range of reasonable professional
47
assistance.” Id. (citation and punctuation omitted). “Overcoming
that presumption requires an appellant to show that no reasonable
lawyer would have done what his lawyer did, or would have failed
to do what his lawyer did not.” Id. (citation and punctuation
omitted). “If the defendant fails to satisfy either prong of the
Strickland test, this Court is not required to examine the other.”
Monroe, 315 Ga. at 781 (6).
(a) Appellant argues that his trial counsel was
constitutionally deficient for failing to request an inquiry of the juror
who, as discussed in Division 6 above, slept for a period of time
following lunch on the first day of trial. But Appellant has failed to
establish deficient performance. “[I]n the absence of testimony to the
contrary, counsel’s actions are presumed strategic.” Calhoun v.
State, 308 Ga. 146, 151 (2) (b) (839 SE2d 612) (2020) (citation and
punctuation omitted). And “decisions regarding trial tactics and
strategy may form the basis for an ineffectiveness claim only if they
were so patently unreasonable that no competent attorney would
have followed such a course.” Beard v. State, 317 Ga. 842, 847 (4)
48
(896 SE2d 497) (2023) (citation and punctuation omitted).
Here, trial counsel was not asked why he failed to request an
inquiry of the sleeping juror, so his decision not to do so is presumed
strategic. See Calhoun, 308 Ga. at 151 (2) (b). And we cannot say
that no reasonable attorney would have concluded that the remedial
measures taken by the trial court were sufficient to resolve the
sleeping issue, given that there was no indication that the juror had
a problem staying awake as a general matter, the record does not
indicate that the issue arose again after the single episode of
sleeping, and the relevant testimony that the juror may have missed
was cumulative of other trial evidence the juror would have heard.
Cf. Jackson, 306 Ga. at 276 (5) (c) (holding that the appellant had
not shown that “no reasonable attorney” would have failed to object
to a prosecutor’s statement in closing argument that trial counsel
believed was “innocuous” and “would not impact the jury’s decision”
(citation and punctuation omitted)); Mathis, 293 Ga. at 839 (2)
(“Given that the only juror irregularity alleged in this case consisted
of a relatively brief, single act of dozing, we find no abuse of
49
discretion on the part of the trial court in concluding that its
immediate remedial actions[, reminding the jurors to stay awake
and instructing them to keep each other awake,] were sufficient.”);
Smith v. State, 284 Ga. 17, 22-23 (4) (663 SE2d 142) (2008)
(concluding that the trial court had taken sufficient “remedial
actions” to address a “single confirmed act of dozing” where the court
“ask[ed] the jury to stay awake,” “addressed [the sleeping] juror
individually[,] and initiated changes to accommodate the juror’s
efforts to stay alert”). Accordingly, this claim fails.
(b) Appellant also claims that trial counsel was ineffective for
failing to object to Davis’s testimony that (1) she had heard that the
co-defendants were part of a gang, and (2) Rosenau told her that
Appellant killed Suggs. As explained below, however, Appellant has
not shown deficient performance.
At trial, Davis was asked several questions about the codefendants’ gang affiliations. Davis testified that she had “heard of
[the Luxiano]” but did not “know too much about it,” that she “really
didn’t know about [Lofton’s] gang affiliation,” that she had “probably
50
heard about” Rosenau’s gang affiliation but “really [did not] know
too much about it,” that she had “heard” that Rosenau was in a
position of authority over the Nine Trey Bloods, and that she had
“heard about” Jenkins’s affiliation with the Luxiano. When asked if
she knew of any affiliation Appellant may have had with any gangs,
Davis responded, “not really – kind – not really, though.” Separately,
Davis testified that, while driving away from Jenkins’s mother’s
house after the shooting, “[Rosenau] said [Appellant] killed [Suggs].”
Appellant claims that trial counsel was deficient for failing to
object to this testimony on the grounds that (1) Davis’s gangaffiliation testimony was inadmissible hearsay, (2) Davis’s
testimony about what Rosenau said was inadmissible hearsay, and
(3) Davis’s testimony about what Rosenau said violated the
Confrontation Clause. None of these claims have merit.
First, even assuming that Davis’s testimony about Appellant’s
gang affiliation was hearsay, trial counsel was not deficient for
failing to object to that testimony because it was cumulative of
earlier unchallenged testimony from Sergeant McKay that
51
Appellant was a gang member. See Rashad v. State, 318 Ga. 199,
212 (3) (d) (897 SE2d 760) (2024) (trial counsel was not deficient for
failing to object to hearsay testimony that was “cumulative of earlier
unchallenged testimony”); Clements v. State, 317 Ga. 772, 796 (7) (a)
(896 SE2d 549) (2023) (same).
Second, although Appellant asserts that trial counsel was
deficient for failing to object on hearsay grounds to Davis’s
statement that Rosenau said Appellant was the shooter, the trial
court rejected this argument based on a finding that the evidence
was admissible as “[a] statement by a coconspirator of a party 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). On appeal, Appellant has not even
acknowledged that ruling, much less explained why it was wrong.
And we conclude that a reasonable attorney could have reached the
same conclusion as the trial court. See, e.g., Kemp v. State, 303 Ga.
385, 393-396 (2) (b) (i)-(ii) (810 SE2d 515) (2018) (holding that
statements were made in the course of a conspiracy, even though
52
they occurred after the victim’s death, and that the statements were
made in furtherance of the gang because they “could be interpreted
as fostering cohesiveness with another gang member or as providing
information to a fellow co-conspirator (of the criminal street gang)”).
Thus, Appellant has not carried his burden to show that trial
counsel was deficient for failing to raise a hearsay objection. See
Clark v. State, 307 Ga. 537, 543-544 (2) (b) (837 SE2d 265) (2019)
(rejecting an ineffective-assistance-of-counsel claim where the
appellant argued that comments were inadmissible but made “no
argument, much less a sufficient showing, that the trial court erred
in concluding that trial counsel’s decision not to object was [not]
objectively unreasonable”).
Finally, Appellant’s claim that trial counsel was ineffective for
failing to raise a Confrontation Clause objection to Davis’s
statement that Rosenau said Appellant was the shooter fails
because Rosenau’s statement, which was made as the gang members
and affiliates fled from the crime scene and well before any arrests
occurred, clearly was not testimonial in nature. See Allen v. State,
53
300 Ga. 500, 504 (3) (796 SE2d 708) (2017) (“Norwood’s statement
— which was made shortly after the crimes and before any arrests
to a friend’s uncle rather than to police officers investigating a crime
— clearly was not intended for use in a future prosecution and
cannot be considered testimonial.”). Because a Confrontation Clause
objection would not have succeeded, Appellant has not shown
deficient performance. See Cooper v. State, 317 Ga. 676, 686-687 (2)
(895 SE2d 285) (2023) (“[T]he failure to make a meritless objection
is not deficient performance.” (citation and punctuation omitted)).
Judgment affirmed. All the Justices concur.
54