Outlaw v. State

In the Supreme Court of Georgia

Decided: May 3, 2021

S21A0305. OUTLAW v. THE STATE.

NAHMIAS, Presiding Justice.

Appellant Charles Outlaw was convicted of malice murder and

other crimes in connection with the shooting death of Angela

Rabotte. In this appeal, he contends that the trial court erred by

denying his motions to suppress evidence derived from his cell phone

records and statements that he made during a meeting in jail with

his girlfriend. He also argues that his trial counsel provided

ineffective assistance by failing to request a jury instruction on

voluntary manslaughter. These claims are meritless, so we affirm. 1

1 Rabotte’s dead body was found on April 3, 2014. In October 2014, a
Gwinnett County grand jury indicted Appellant for malice murder, felony
murder, aggravated assault, concealing the death of another, possession of a
firearm during the commission of a felony, possession of a firearm by a
convicted felon, and use of a firearm by a convicted felon during the commission
of a felony. Appellant’s first trial, which began on August 15, 2016, resulted in
 1. The evidence presented at Appellant’s trial showed the

following. Appellant and Rabotte had known each other as children

and had reconnected in February 2014; they were friends and may

have been romantically involved. In the early morning hours of

March 29, 2014, Rabotte worked as a dancer at a bachelor party in

Smyrna. When the party ended around 5:00 a.m., another dancer

saw Rabotte carrying a money counter and overheard her on her cell

phone arguing and asking for a ride home.

Later that day, Rabotte’s friends became concerned when she

did not arrive home. They reported to the police that she was

a mistrial during the presentation of the evidence. During his second trial,
which was held from August 22 to 26, 2016, the trial court bifurcated the
counts of possession and use of a firearm by a convicted felon, and the jury
found Appellant guilty of the remaining counts. The court then nolle prossed
the bifurcated counts and sentenced Appellant as a recidivist to serve life in
prison without the possibility of parole for malice murder and consecutive
terms of 10 years for concealing a death and five years for possession of a
firearm during the commission of a felony; the court merged the remaining
counts (although the felony murder count was actually vacated by operation of
law, see Malcolm v. State, 263 Ga. 369, 374 (434 SE2d 479) (1993)). Appellant
filed a timely motion for new trial, which he amended through new counsel in
October 2018. After an evidentiary hearing, the trial court denied the motion
in May 2020. Appellant filed a timely notice of appeal, and the case was
docketed to the term of this Court beginning in December 2020 and submitted
for decision on the briefs.
2
missing and organized a search party in Norcross on March 31.

Appellant was there, and a detective interviewed him that evening.

Appellant said that he drove a Dodge Dart to pick up Rabotte after

the party in Smyrna; on the way to Gwinnett County, they argued;

he parked near his girlfriend Lakisha Fort’s house in Norcross and

walked to the house while Rabotte stayed in the car so Fort would

not see her; and when he returned about 15 minutes later, Rabotte

and the bags of clothes and money counter she had been carrying

were gone. On April 1, after a second interview, Appellant was

arrested on charges (cocaine possession and violating the terms of

his probation) unrelated to Rabotte’s murder.

On April 3, Rabotte’s dead body was found in a wooded area

near Lilburn Industrial Way in Lilburn, where it appeared to have

been carried and then covered with pine straw. The medical

examiner who performed Rabotte’s autopsy testified that Rabotte

died from a contact gunshot wound to the left side of the back of her

head. Investigators searched the Dodge that Appellant had been

driving and found gunshot primer residue on the interior roof above

3
the driver’s area. Investigators also searched a house that Appellant

often visited and found wrapped in a blanket in the attic a money

counter that was the same make, model, and color as the one

Rabotte was seen carrying at the bachelor party.

About three weeks after the murder, on April 24, Appellant’s

girlfriend Fort visited him in jail. A detective had provided her with

a small audio-recording device, which she hid in her clothing and

used to record the meeting with Appellant; the audio recording of

the meeting was played for the jury during the trial. The recording

reflects that Appellant maintained that he did not kill Rabotte. Fort

testified, however, that during several lengthy pauses (which are

also reflected on the recording), Appellant whispered, mouthed

words, and used body language to tell her that he and Rabotte

argued in the car; Rabotte put a gun to his head; and he took the

gun and shot her in the back of the head.

Fort also testified that her brother told her that Appellant had

woken him on the morning Rabotte was last seen alive, saying “I

think I killed the old girl.” Appellant’s jail cellmate testified that

4
Appellant admitted shooting Rabotte in the head with a handgun as

they argued, then putting her in the trunk, disposing of her body,

and having the car cleaned.

In addition, Rabotte’s cell phone records showed that on the

morning she was last seen, March 29, her phone was in Smyrna at

4:52 a.m., near Jimmy Carter Boulevard at 5:32 a.m., and heading

toward Lilburn at 5:41 a.m. Rabotte’s phone was not used again

after that time. The records for Appellant’s two cell phones, one of

which received service from MetroPCS and the other from Verizon,

showed that on March 29, both phones were near Jimmy Carter

Boulevard around 5:24 a.m. The MetroPCS records placed that

phone near Lilburn Industrial Way, where Rabotte’s body was

found, at 5:49 a.m.

2. Appellant contends first that the trial court erred by denying

his motion to suppress evidence of cell-site location information

(CSLI) that was obtained from his cell phone records. See Lofton v.

State, ___ Ga. ___, ___ (854 SE2d 690, 696 n.3) (2021) (explaining

CSLI). We disagree.

5
 (a) On April 10, 2014, seven days after Rabotte’s body was

found, the State filed motions that requested court orders requiring

Verizon and MetroPCS to disclose Appellant’s cell phone records,

including CSLI, from March 27 through April 5, 2014. The motions

detailed the facts of the investigation into Rabotte’s murder and said

that the records would be “relevant and material to the

investigation.” The trial court then issued orders that required

Verizon and MetroPCS to disclose the requested records under the

federal Stored Communications Act (SCA). See 18 USC § 2703 (c) (1)

(B) & (d).2

2 18 USC § 2703 (c) (1) authorizes a governmental entity to “require a
provider of electronic communication service . . . to disclose a record or other
information pertaining to a subscriber to or customer of such service (not
including the contents of communications),” including, in subparagraph (c) (1)
(B), when the governmental entity “obtains a court order for such disclosure
under subsection (d) of this section.” 18 USC § 2703 (d) then says, in pertinent
part:
A court order for disclosure under subsection (b) or (c) may be
issued by any court that is a court of competent jurisdiction and
shall issue only if the governmental entity offers specific and
articulable facts showing that there are reasonable grounds to
believe that . . . the records or other information sought . . . are
relevant and material to an ongoing criminal investigation. In the
case of a State governmental authority, such a court order shall
not issue if prohibited by the law of such State.
OCGA § 16-11-66.1 (a) permits a prosecutor to require the disclosure of cell

6
 Before trial, Appellant filed a motion to suppress the CSLI

evidence derived from the MetroPCS records; the trial court

ultimately denied the motion summarily. During the trial, the court

admitted into evidence and an investigator testified about the

Verizon and MetroPCS records and two maps that the investigator

had created. As mentioned above, one of the maps plotted both of

Appellant’s phones near Jimmy Carter Boulevard, which was the

area where Rabotte’s phone was also located, around 5:24 a.m. on

March 29; the other map plotted Appellant’s MetroPCS phone near

Lilburn Industrial Way, where Rabotte’s body was later found, at

5:49 a.m.

(b) Appellant argues that the State’s failure to obtain a search

warrant for his cell phone records violated his right against

unreasonable searches and seizures under the Fourth Amendment

to the United States Constitution. Appellant relies on the United

States Supreme Court’s 2018 decision in Carpenter v. United States,

phone records “to the extent and under the procedures and conditions provided
for by the laws of the United States.”

7
___ U.S. ___, ___ (138 SCt 2206, 201 LE2d 507) (2018), which held

that “accessing seven days of CSLI constitutes a Fourth Amendment

search” for which the government generally must obtain a search

warrant based on probable cause, not merely a court order issued

pursuant to 18 USC § 2703 (d). Carpenter, 138 SCt at 2217 n.3, 2221.

Appellant argues that the trial court therefore should have

suppressed the CSLI evidence derived from his cell phone records

under the exclusionary rule for violations of the Fourth Amendment.

See Illinois v. Krull, 480 U.S. 340, 347 (107 SCt 1160, 94 LE2d 364)

(1987) (“When evidence is obtained in violation of the Fourth

Amendment, the judicially developed exclusionary rule usually

precludes its use in a criminal proceeding against the victim of the

illegal search and seizure.”). We can assume without deciding that

Appellant preserved for ordinary appellate review his claim that the

trial court should have suppressed the CSLI evidence obtained from

his Verizon records, because the exclusionary rule did not preclude

the admission of either that evidence or the CSLI evidence derived

from his MetroPCS records.

8
 As we recently explained in Lofton, two good-faith exceptions

to the exclusionary rule apply to this situation. See 854 SE2d at 701.

Lofton challenged the denial of his motion to suppress CSLI

evidence derived from a detective’s request for the disclosure of

Lofton’s cell phone records under another provision of the SCA, 18

USC § 2702 (c) (4), on the ground that the detective’s failure to

obtain a search warrant for the records violated the Fourth

Amendment under Carpenter. See Lofton, 854 SE2d at 696-699. 3

Noting that Carpenter was decided four years after Lofton’s trial, we

held that the good-faith exception to the exclusionary rule for

searches conducted in objectively reasonable reliance on “‘a statute

that appeared legitimately to allow a warrantless . . . search’”

applied, because at the time, 18 USC § 2702 (c) (4) authorized the

detective to obtain the cell phone records without a search warrant.

Lofton, 854 SE2d at 701-702 (quoting Krull, 480 U.S. at 360). We

3 18 USC § 2702 (c) (4) permits a cell phone service provider to disclose a
customer’s records to a governmental entity if the provider has a good faith
belief “that an emergency involving danger of death or serious physical injury
to any person requires disclosure without delay.”
9
then determined that the exception for “searches conducted in

objectively reasonable reliance on binding appellate precedent that

is later overruled” also applied, because at the time of the

investigative conduct, appellate precedent binding in Georgia courts

held that a search warrant was not required to obtain CSLI. See id.

at 697, 701-702 (citing Davis v. United States, 564 U.S. 229, 241 (131

SCt 2419, 180 LE2d 285) (2011)).4

Similarly, in this case, Carpenter was decided more than four

years after the State requested and acquired Appellant’s cell phone

records in April 2014. At that time, 18 USC § 2703 (c) (1) (B) and (d)

authorized the State to obtain a court order requiring the disclosure

4 As we discussed in Lofton, in United States v. Leon, 468 U.S. 897 (104
SCt 3405, 82 LE2d 677) (1984), the United States Supreme Court recognized
the first good-faith exception to the exclusionary rule, which applies to
evidence obtained by an officer acting in good-faith reliance on a search
warrant issued by a magistrate. See Lofton, 854 SE2d at 701 n.17. In Gary v.
State, 262 Ga. 573 (422 SE2d 426) (1992), this Court construed OCGA §17-5-
30 to hold that there is no Leon good-faith exception to the exclusionary rule
in Georgia. See Lofton, 854 SE2d at 701 n.17. As we had recently explained in
Mobley v. State, 307 Ga. 59 (834 SE2d 785) (2019), however, Gary’s reasoning
was unsound, and although in Mobley we deemed it unnecessary to decide
whether to overrule Gary’s specific holding, we concluded that Gary does not
foreclose the application of other exceptions to the exclusionary rule, including
the Krull and Davis good-faith exceptions that apply here. See Lofton, 854
SE2d at 701-702 nn.17 & 18.
10
of the records if the State offered “specific and articulable facts”

showing that there were “reasonable grounds to believe” that the

records were “relevant and material to an ongoing criminal

investigation.” Appellant does not dispute that the State’s motions

requesting the court orders complied with those provisions of the

SCA. And although Lofton involved a different SCA provision (18

USC § 2702 (c) (4)), the good-faith exception for objectively

reasonable reliance on a statute that appeared legitimately to allow

a warrantless search applies with equal force here, because 18 USC

§ 2703 (c) (1) (B) and (d) authorized the State’s investigative conduct

at the time. See Smarr v. State, 317 Ga. App. 584, 593-594 & n.24

(732 SE2d 110) (2012) (holding that trial counsel was not ineffective

in failing to move to suppress the defendant’s cell phone records,

which the State obtained pursuant to a court order under 18 USC §

2703 (c) (1) (B) and (d), because a motion to suppress would not have

been successful given the law at the time), overruled on other

grounds by Carpenter, 138 SCt at 2221.

Also as in Lofton, when the State requested and obtained

11
Appellant’s cell phone records in April 2014, appellate precedent

binding in Georgia courts held that defendants generally had no

reasonable expectation of privacy in their cell phone records and

therefore lacked standing to raise a Fourth Amendment challenge

to the disclosure of the records. See Lofton, 854 SE2d at 697, 702.

See also Ross v. State, 296 Ga. 636, 639 (769 SE2d 43) (2015),

overruled by Carpenter, 138 SCt at 2221; Registe v. State, 292 Ga.

154, 156 (734 SE2d 19) (2012), overruled by Carpenter, 138 SCt at

2221; Smarr, 317 Ga. App. at 593-594 & nn.24-25. Because 18 USC

§ 2703 (c) (1) (B) and (d) and binding appellate precedent authorized

the State’s investigative conduct in April 2014, the exclusionary rule

does not apply. Accordingly, the trial court properly denied

Appellant’s motion to suppress the CSLI evidence. See Lofton, 854

SE2d at 702. See also Swinson v. State, Case No. S21A0396, 2021

WL 769457, at *3-5 (decided Mar. 1, 2021) (relying on Lofton to hold

that the exclusionary rule did not apply to CSLI evidence that was

obtained pursuant to 18 USC § 2702 (c) (4) and controlling appellate

precedent in Georgia at the time); Gialenios v. State, Case No.

12
S20A1196, 2021 WL 769417, at *4-6 (decided Mar. 1, 2021) (same). 5

3. Appellant contends next that the trial court erred by denying

his motion to suppress evidence of the statements he made during

5 We note that our decisions in Lofton, Swinson, and Gialenios have not
been consistent in identifying the point in time at which an officer’s reasonable
reliance on a statute or on binding appellate precedent should be determined.
See Lofton, 854 SE2d at 697, 702 (noting that the SCA and binding appellate
precedent “[a]t the time of Lofton’s trial” held that a search warrant was not
required to obtain CSLI); id. at 699, 701 (concluding that the detective’s
reliance on the SCA and binding appellate precedent “at the time” of his
“communications with MetroPCS” authorized the disclosure of Lofton’s cell
phone records); Swinson, 2021 WL 769457, at *4 (noting that binding appellate
precedent “[a]t the time of the [trial court] order” denying Swinson’s motion to
suppress held that a search warrant was not required to obtain CSLI); id. at
*5 (determining that “law enforcement’s request for Swinson’s cell phone
records and AT&T’s release of this documentation were based on ‘a good faith
belief that [the] voluntary disclosure of the requested records was authorized
under the SCA and binding appellate precedent at the time’” (quoting Lofton,
854 SE2d at 699)); id. (concluding that the SCA and binding appellate
precedent “‘at the time of [Swinson’s] trial’” authorized the investigative
conduct at issue (quoting Lofton, 854 SE2d at 702)); Gialenios, 2021 WL
769417, at *6 (determining that “[a]t the time of the lieutenant’s request for
Gialenios’ cell phone records,” no binding Georgia appellate precedent held
that a search warrant was required to obtain CSLI). But Krull and Davis make
clear that the pertinent time is when the officer engaged in the investigative
conduct at issue. See Krull, 480 U.S. at 356-357 & n.13 (holding that the
exclusionary rule did not apply where a detective acted in good-faith reliance
upon an apparently valid statute that was “in effect at the time of [the] search”
of Krull’s business); Davis, 564 U.S. at 235-236, 239-241 (explaining that “[a]t
the time of the search” of Davis’s car, a police officer acted in good-faith reliance
on binding appellate precedent that was overruled while Davis’s appeal was
pending, two years after the search). To the extent that language in Lofton,
Swinson, and Gialenios suggests that the law in effect at some other time is
pertinent in determining whether a law enforcement officer’s investigative
conduct was authorized under the exceptions to the exclusionary rule set forth
in Krull and Davis, that language is disapproved.
13
his meeting in jail with his girlfriend Lakisha Fort. Asserting that

Fort was acting as an agent of the State at the time of the meeting,

Appellant claims that he should have been given the warnings

required by Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d

694) (1966), before he spoke with her and that the admission of his

subsequent statements to her violated his right against compulsory

self-incrimination under the Fifth Amendment to the United States

Constitution. Assuming (without deciding) that Fort acted as a State

agent when she met with Appellant, Miranda warnings were not

required and there was no Fifth Amendment violation, so this claim

fails.

(a) During the hearing on the motion to suppress, the lead

detective for Appellant’s case testified as follows. On April 10, 2014,

more than a week after Appellant was arrested on charges unrelated

to Rabotte’s murder, the detective interviewed Fort, who was

incarcerated at the Gwinnett County Jail but participating in the

work release program. Fort said that she was angry with Appellant,

that she wanted to cooperate, and that Appellant had told her

14
during phone calls from jail that he wanted to explain what

happened but could not do so on the phone. She discussed meeting

with Appellant in person, and the detective contacted someone at

the Gwinnett County Sheriff’s Department to arrange the meeting.

On April 24, the detective provided Fort with a small audio-

recording device, which she hid in her clothing and used to record

the approximately hour-and-fifteen-minute meeting with Appellant

in a visitation room at the jail. Afterwards, the detective took the

recording device, listened to the recording, and interviewed Fort

about the meeting. The detective testified that he did not promise

Fort anything in exchange for her meeting with Appellant.

An investigator who worked at the jail testified during the

hearing and at trial that it is an inmate’s responsibility to arrange

for a visitor; that the inmate must put the visitor’s name on a

visitation list; that at the time of the scheduled visit, the inmate

usually walks to a visitation room and can come and go from the

room; and that an inmate is not required to attend a scheduled visit.

The trial court ultimately denied the motion to suppress summarily.

15
Fort testified at trial that she had not been threatened or promised

anything in exchange for her meeting with Appellant, but she

acknowledged on cross-examination that the detective had

implicated her brother in Rabotte’s murder, although she thought

that the detective was “bluffing.”

(b) Partly as a matter of safeguarding the Fifth Amendment

right against compelled self-incrimination, Miranda warnings must

be administered to a suspect who is subjected to “custodial

interrogation.” Miranda, 384 U.S. at 444.

It is the premise of Miranda that the danger of coercion
results from the interaction of custody and official
interrogation. . . . Questioning by captors, who appear to
control the suspect’s fate, may create mutually
reinforcing pressures that the [United States Supreme]
Court has assumed will weaken the suspect’s will, but
where a suspect does not know that he is conversing with
a government agent, these pressures do not exist.

Illinois v. Perkins, 496 U.S. 292, 297 (110 SCt 2394, 110 LE2d 243)

(1990). Thus, “[c]onversations between suspects and undercover

agents do not implicate the concerns underlying Miranda.” Perkins,

496 U.S. at 296. See also id. at 300 (holding that “an undercover law

enforcement officer posing as a fellow inmate need not give Miranda
16
warnings to an incarcerated suspect before asking questions that

may elicit an incriminating response”).

In this case, Appellant had no reason to believe that Fort was

acting as a State agent during their meeting (even assuming that

she was). The audio-recording of the meeting gives no indication

that Appellant felt intimidated or coerced by Fort, that he believed

she had any legal authority to force him to answer questions, or that

he thought she could affect his legal situation. See id. at 296-297

(explaining that “[c]oercion is determined from the perspective of the

suspect” and “[p]loys to mislead a suspect or lull him into a false

sense of security that do not rise to the level of compulsion or

coercion to speak are not within Miranda’s concerns”). See also

Gebhardt v. State, 307 Ga. 587, 595 n.8 (837 SE2d 318) (2019)

(relying on Perkins to reject the defendant’s claim that he should

have been given Miranda warnings before he made incriminating

statements to his cellmate, who recorded the statements with a

device that the police had provided him).

Moreover, even if Appellant had been aware that Fort was

17
acting as a State agent (as we are assuming she was), he was not in

custody for Miranda purposes at the time of their meeting.

“[I]mprisonment alone is not enough to create a custodial situation

within the meaning of Miranda.” Howes v. Fields, 565 U.S. 499, 511

(132 SCt 1181, 182 LE2d 17) (2012). Rather, in determining whether

a person is in custody, “the initial step is to ascertain whether, in

light of the objective circumstances of the interrogation, a

reasonable person would have felt he or she was not at liberty to

terminate the interrogation and leave.” Id. at 509 (citations and

punctuation omitted).

The testimony at the pretrial hearing and at trial indicated

that Appellant had requested that Fort visit him while he was in

jail, and the investigator from the jail testified that inmates are

responsible for arranging and attending visits and that they may

come and go from the visitation room. The trial court was entitled to

credit that testimony. Moreover, the audio-recording of the meeting

shows that Appellant voluntarily spoke with Fort, and during their

approximately hour-and-fifteen-minute visit, Appellant never

18
indicated that he wanted to stop the meeting or that he believed that

he was not free to leave the visitation room.

Given the totality of the circumstances, a reasonable person in

Appellant’s situation would have felt free to end the meeting with

Fort and leave. See id. at 510-517 (holding that the defendant, who

was serving a sentence in jail, was not in custody for Miranda

purposes when he was escorted to a conference room at the jail and

interviewed by sheriff’s deputies for five to seven hours about an

allegation of criminal conduct that occurred before he was

imprisoned, because he was told that he was free to return to his cell

whenever he wanted, he was not physically restrained or

threatened, he was offered food and water, and the door to the room

was sometimes left open); United States v. Higgins-Vogt, 911 F3d

814, 820-821 (7th Cir. 2018) (concluding that the defendant, who

had been arrested on robbery charges, was not in custody for

Miranda purposes when he confessed committing a murder to a

worker at the jail who held herself out as a counselor, because the

defendant initiated the meeting with the counselor and was free to

19
end his discussions with her at any time). Compare Mays v. State,

336 Ga. App. 398, 402-404 (785 SE2d 408) (2016) (holding that the

defendant was in custody under Miranda where a GBI agent

questioned her in jail a week after she had been arrested for

violating the terms of her probation, including by failing to complete

community service, which was the main focus of the agent’s

questions; the defendant was scheduled to appear in court for a

probation revocation hearing less than a week after the interview;

the agent did not tell the defendant she was free to leave until about

15 minutes into the 23-minute interview; and it was not clear

whether the defendant was restrained during the interview). For

these reasons, the State was not required to administer Miranda

warnings to Appellant before he met with Fort.

We also reject Appellant’s claim that the admission of his

statements to Fort violated his Fifth Amendment right against

compelled self-incrimination. Based on the totality of the

circumstances, the trial court did not err by concluding (implicitly)

that his statements to Fort were voluntary and not the product of

20
coercion. See Perkins, 496 U.S. at 298-300 (holding that “[t]he tactic

[of placing an undercover agent in the defendant’s cellblock]

employed [in that case] to elicit a voluntary confession from a

suspect does not violate the Self-Incrimination Clause” and noting

that “[t]he use of undercover agents is a recognized law enforcement

technique, often employed in the prison context”); Hoffa v. United

States, 385 U.S. 293, 295-299, 303-304 (87 SCt 408, 17 LE2d 374)

(1966) (holding that the admission of testimony about the

defendant’s incriminating statements to a friend, who unbeknown

to the defendant was acting as a government agent, did not violate

the Fifth Amendment because the statements were not the product

of any sort of coercion). See also United States v. Washington, 431

U.S. 181, 187 (97 SCt 1814, 52 LE2d 238) (1977) (“[F]ar from being

prohibited by the Constitution, admissions of guilt by wrongdoers, if

not coerced, are inherently desirable.”).6

6 The parties do not contend (and there is no evidence in the record
indicating) that Appellant had invoked his Fifth Amendment right to counsel
or right to silence before the meeting with Fort. See Perkins, 496 U.S. at 300
n.* (Brennan, J., concurring) (asserting that if the defendant had previously

21
 4. Finally, Appellant contends that his trial counsel provided

ineffective assistance by failing to request a jury instruction on the

lesser offense of voluntary manslaughter. See OCGA § 16-5-2 (a)

(stating in pertinent part that voluntary manslaughter is the killing

of another person under circumstances that would otherwise be

murder when the killer “acts solely as the result of a sudden, violent,

and irresistible passion resulting from serious provocation sufficient

to excite such passion in a reasonable person”). To prevail on this

invoked those rights, the inquiry would focus on whether he then waived them
before he spoke with the undercover agent).
We also note that cases involving alleged violations of the Sixth
Amendment right to counsel where the government used an undercover agent
to question a defendant, see, e.g., Rai v. State, 297 Ga. 472, 478-479 (775 SE2d
129) (2015), do not apply to the analysis of Appellant’s Miranda and Fifth
Amendment claims (although both parties’ briefs incorrectly rely on such
cases). Appellant’s Sixth Amendment right to counsel had not yet attached
when he met with Fort, because at the time of the April 24 meeting, Appellant
was in jail on charges of cocaine possession and violating the terms of his
probation; he was not charged with crimes related to Rabotte’s murder until
nearly three months later, in July 2014. See Perkins, 496 U.S. at 299
(explaining that cases holding that the government may not use an undercover
agent to circumvent the Sixth Amendment right to counsel did not apply
because that right attaches only after charges have been filed and the
defendant had not been charged with any crimes related to the murder when
he made the statements to the undercover agent). See also Texas v. Cobb, 532
U.S. 162, 167 (121 SCt 1335, 149 LE2d 321) (2001) (explaining that the Sixth
Amendment right to counsel is “offense specific” and “does not attach until a
prosecution is commenced, that is, at or after the initiation of adversary
judicial criminal proceedings” (citation and punctuation omitted)).
22
claim, Appellant must show both that his counsel’s performance was

professionally deficient and that he suffered prejudice as a result.

See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80

LE2d 674) (1984). We need not review both parts of this test if

Appellant fails to prove one of them. See id. at 697.

Even assuming (dubiously) that the evidence presented at trial

would have authorized a jury instruction on voluntary

manslaughter, trial counsel’s decision not to request the instruction

was not so unreasonable that no competent attorney would have

made it under the circumstances. “Decisions about which defenses

to present and which jury charges to request are classic matters of

trial strategy, and pursuit of an all-or-nothing defense is generally

a permissible strategy.” Velasco v. State, 306 Ga. 888, 893 (834 SE2d

21) (2019). At the hearing on Appellant’s motion for new trial, his

trial counsel testified that Appellant had consistently maintained

that he did not know who killed Rabotte; that counsel and Appellant

decided to assert that defense theory at trial; that counsel did not

request a voluntary manslaughter instruction because choosing one

23
defense theory provided “the best chance of winning this case”; and

that if he had chosen to also present the contradictory theory that

Appellant killed Rabotte in the heat of passion, the prosecutor

“would have jumped on it.”

“It was not patently unreasonable for trial counsel, rather than

risk losing credibility, to make the strategic decision not to seek a

voluntary manslaughter charge” and to instead pursue only a

defense that was consistent with Appellant’s claim that someone

else killed Rabotte. Blackwell v. State, 302 Ga. 820, 826 (809 SE2d

727) (2018). Thus, Appellant has not proved that his trial counsel

performed deficiently in this regard, and his claim of ineffective

assistance fails. See Floyd v. State, 307 Ga. 789, 801 (837 SE2d 790)

(2020) (concluding that trial counsel did not perform deficiently by

failing to request a voluntary manslaughter instruction, because a

claim of voluntary manslaughter would have contradicted the

defendant’s defense that he was not involved in the victim’s murder);

Velasco, 306 Ga. at 893-894 (holding that trial counsel, who pursued

an all-or-nothing justification defense, was not deficient for failing

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to request a voluntary manslaughter charge, because the defendant

consistently maintained that he acted in self-defense).

Judgment affirmed. All the Justices concur.

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