Ward v. State

In the Supreme Court of Georgia

Decided: February 15, 2022

S21A1309. WARD v. THE STATE.

NAHMIAS, Chief Justice.

Appellant Rodricus Ward was convicted of malice murder and

firearm offenses in connection with the shooting death of his on-

again, off-again girlfriend, Darla Gibbons. He appeals, contending

that the evidence presented at his trial was insufficient to support

his convictions and that the trial court erred in allowing six

witnesses to testify about hearsay statements that Gibbons made to

them. Appellant also argues that his trial counsel provided

ineffective assistance in three ways: by failing to adequately argue

against the State’s motion to introduce the hearsay testimony; by

failing to try to suppress all of Appellant’s interview with two police

detectives; and by failing to sufficiently prepare for trial. We see no
reversible error, so we affirm. 1

1. The evidence presented at trial showed the following. On

Wednesday, October 22, 2014, a worker discovered a burned-out car

with a charred human body in its trunk at a rock quarry adjacent to

a local airport in Athens. The body was identified as Gibbons by

dental analysis; the car was a white Buick Sentry that her mother

had bought for her nine days earlier. Gibbons was killed by two

gunshots to her head; two .25-caliber bullets were found in her skull.

Her autopsy and a fire investigator’s examination of the car

indicated that the car’s trunk was intentionally set on fire after

Gibbons was killed.

1 Gibbons was killed in October 2014. In September 2015, a Greene
County grand jury indicted Appellant for malice murder, two counts of felony
murder, aggravated assault, possession of a firearm during the commission of
a felony, and possession of a firearm by a convicted felon. At a trial from
March 15 to 18, 2016, the jury found Appellant guilty of all counts. The trial
court vacated both felony murder counts, merged the aggravated assault count,
and sentenced Appellant to serve life in prison without parole for malice
murder, five consecutive years for possession of a firearm during the
commission of a felony, and five concurrent years for possession of a firearm by
a convicted felon. Appellant filed a timely motion for new trial, which he
amended with new counsel in December 2020. After an evidentiary hearing,
the trial court denied the motion in March 2021. Appellant then filed a timely
notice of appeal, and the case was docketed to the August 2021 term of this
Court and submitted for decision on the briefs.
2
 Appellant and Gibbons had been dating on and off for about

nine years. According to Gibbons’s friends and family, the pair had

a “rocky” relationship and argued constantly, with Appellant

sometimes becoming violent. Appellant once punched Gibbons and

threw her over a couch. On another occasion, while driving

Appellant home, Gibbons had to pull over to the side of the road, and

they got into a physical fight. In the months before her death,

Gibbons told friends and family that she had been trying to collect

money that she lent to Appellant, but he was evading payment.

Gibbons and Appellant also fought about her recent pregnancy with

their child and her subsequent miscarriage. 2

Text messages between Gibbons and Appellant indicate that

they were together for part of the weekend before her body was

found (October 18 and 19). On Monday, October 20, Gibbons told her

co-worker and friend, Rodney Rivers, that she was “going to call it

off” with Appellant. Cell phone records and surveillance video

2 This testimony from Gibbons’s family and friends is discussed in more
detail in Division 3 below.
3
recordings from Gibbons’s apartment complex in Atlanta showed

that she returned home from work at 6:36 p.m. and left again at

7:49 p.m. A later search of her apartment showed that her

toothbrush, shampoo, and soap were missing. Gibbons was

scheduled to be off work on Tuesday and Wednesday.

Right after Gibbons left her apartment on Monday night, she

called Appellant and spoke with him for 47 minutes, while her phone

traveled east toward his residence in the Union Point area near

Greensboro in Greene County. Around 9:00 p.m., Gibbons called

Appellant again; her phone pinged a cell tower in the Union Point

area. Gibbons’s phone signal then remained stationary for about

three and a half hours, pinging close to Appellant’s residence. At

12:45 a.m. on Tuesday morning, October 21, her phone began

moving toward Athens. At 1:50 a.m., her phone pinged the tower

serving the rock quarry area where her body was found. The phone

signal disappeared at 2:17 a.m., indicating that the phone had a

dead battery, was turned off, or was destroyed.

Between midnight and 1:00 a.m. on Tuesday, Appellant

4
contacted his nephew, Marquavious Peek, and asked Peek to ride

with him from Greensboro to Athens. Peek testified as follows. When

he arrived at Appellant’s residence around 1:00 a.m., Appellant was

waiting for him outside. They got into a white Buick, and Appellant

drove them toward Athens. Peek did not see anyone else inside the

car, but he may have seen a purse. After driving for less than an

hour, Appellant stopped the car near an airport sign and told Peek

to get out. Appellant drove away, and then returned on foot about

40 minutes later. When Peek asked Appellant what happened to the

car, Appellant said: “I had to get rid of it.”3 Peek and Appellant then

walked to a mobile home park and knocked on someone’s door. One

of the occupants let Appellant use his phone to call Appellant’s

sister, Crystal Haley. Haley received this call at 1:34 a.m. and said

3 Over the course of two pretrial interviews with law enforcement
officers, Peek said that he had seen a purse on the Buick’s floorboard and that
Appellant told him that Gibbons had been hurt. Peek also said that once he
and Appellant got to Athens, Appellant told him that there was a body in the
trunk, and Peek then got out of the car. At the end of the second pretrial
interview, however, Peek denied all of these statements, saying that he had
“slipped up” when he made them.

5
that she would pick them up on the way to her paper route.4 Peek

and Appellant walked to a gas station. At 4:03 a.m., Haley picked up

Peek and Appellant. Around 5:00 a.m., after completing her paper

route, Haley dropped off Appellant and Peek at Appellant’s

residence.

When investigators searched Appellant’s bedroom on

October 23, the day after Gibbons’s body was discovered, they found

that a section of carpet in the middle of the room was missing, and

the bedding and mattress appeared to be brand new, with some tags

still attached. A blood reagent indicated the presence of wiped-up

blood on the floor and on a wall, with droplets going toward the door,

and a blood stain, which DNA testing later confirmed to be from

Gibbons, was found on an electrical cord. Investigators also found a

spent .25-caliber cartridge case and an unfired .25-caliber cartridge.

During a lengthy interview with two police detectives on the

4 In a pretrial statement to police officers, Haley said that Peek had told
her that Appellant and another woman found Gibbons “extremely intoxicated”
at a party and took her from the party on the night Appellant called Haley. At
trial, Haley testified that she only remembered Peek saying that he and
Appellant had been at a party and that their ride had left them.
6
day of the search, Appellant said that he and Gibbons had been

dating on and off for nine years, that he “wasn’t doing right” by her,

that they argued a lot but he never laid hands on her, that she had

been pregnant but miscarried because he had given her a sexually

transmitted disease (“STD”), and that she gave him $600 for his

birthday and then could not pay her own rent. Appellant claimed

that he had not seen Gibbons since August, but he also said that his

fingerprints would be in her Buick (which she got on October 13). He

provided several vague and contradictory accounts of his activities

on October 20. Appellant, who was convicted of robbery in 2008, also

claimed that he had not held a gun since 2010. He later allowed the

detectives to take his phone and download its contents. In his

phone’s recently deleted photo album, the detectives found a video

recorded around 8:30 p.m. on Monday, October 20, showing

Appellant pointing a small-caliber pistol at the camera. The

firearms examiner testified that the gun appeared to be a .22-, .25-,

or .32-caliber. Appellant did not testify at trial.

2. Appellant contends that the evidence presented at his trial

7
was constitutionally insufficient to support his convictions. We

disagree. In evaluating the sufficiency of the evidence under the Due

Process Clause of the Fourteenth Amendment to the United States

Constitution, we consider whether any rational jury could have

found the defendant guilty beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LEd2d 560) (1979);

Johnson v. State, 312 Ga. 481, 487 (863 SE2d 137) (2021). “We leave

to the jury the resolution of conflicts or inconsistencies in the

evidence, credibility of witnesses, and reasonable inferences to be

derived from the facts.” Smith v. State, 308 Ga. 81, 84 (839 SE2d

630) (2020). When properly viewed in the light most favorable to the

verdicts, the evidence presented at Appellant’s trial, as summarized

above, was easily sufficient to find him guilty of the crimes of which

he was convicted. See Jackson, 443 U.S. at 319.5

5 Appellant also argues that he is entitled to a new trial under
OCGA §§ 5-5-20 and 5-5-21, commonly known as the “general grounds.” See
White v. State, 293 Ga. 523, 524-525 (753 SE2d 115) (2013). However, the trial
court properly considered this argument in its order denying a new trial, and
“an appellate court does not review the merits of the general grounds. Instead,
this Court’s review of [the] trial court’s ruling on the general grounds is limited

8
 3. Appellant contends that the trial court erred in allowing six

witnesses, who were Gibbons’s close friends and family, to testify

about his relationship problems with Gibbons. Appellant argues

that the testimony was inappropriately admitted under

OCGA § 24-8-807 (“Rule 807”), the residual exception to the hearsay

rule. 6 Appellant also contends that the testimony of one of these

witnesses, Brittany Griffeth, was inadmissible because the State did

to sufficiency of the evidence under Jackson v. Virginia.” Hinton v. State, 312
Ga. 258, 262 (862 SE2d 320) (2021) (emphasis in original; citation and
punctuation omitted). As just explained, the evidence of Appellant’s guilt was
sufficient to support his convictions under Jackson v. Virginia.
6 Rule 807 says:

A statement not specifically covered by any law but having
equivalent circumstantial guarantees of trustworthiness shall not
be excluded by the hearsay rule, if the court determines that:
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it
is offered than any other evidence which the proponent can
procure through reasonable efforts; and
(3) The general purposes of the rules of evidence and the
interests of justice will best be served by admission of the
statement into evidence.
However, a statement may not be admitted under this Code section
unless the proponent of it makes known to the adverse party,
sufficiently in advance of the trial or hearing to provide the adverse
party with a fair opportunity to prepare to meet it, the proponent’s
intention to offer the statement and the particulars of it, including
the name and address of the declarant.

9
not give timely notice of her testimony as required by Rule 807.

At trial, Appellant’s counsel objected before the first of these

witnesses testified, making an argument that was somewhat

confused but appeared to include the grounds that Appellant raises

here. 7 The trial court overruled the objection. We will assume that

Appellant’s Rule 807 claims were properly preserved and review the

trial court’s decision to admit the testimony for an abuse of

discretion. See State v. Holmes, 304 Ga. 524, 529 (820 SE2d 26)

(2018). But we note that “[t]his Court is particularly hesitant to

overturn a trial court’s admissibility ruling under the residual

hearsay exception absent a definite and firm conviction that the

court made a clear error of judgment in the conclusion it reached

based upon a weighing of the relevant factors.” Id. (citation and

punctuation omitted).

(a) The six witnesses about whom Appellant complains gave

the following testimony at trial.

7 Appellant also raises a claim of ineffective assistance of counsel based
on this objection, as discussed in Division 4 (a) below.
10
 First, Rodney Rivers testified that he and Gibbons were

co-workers and good friends; he was “like a big brother to her.”

Gibbons told him that she and Appellant dated on and off through

college and that “[s]he really loved [Appellant] a lot.” At work, Rivers

overheard Gibbons and Appellant arguing on the phone “quite a few”

times, and “she’d often mention that . . . he was real abusive

and . . . all they did was argue.” Rivers last saw Gibbons on October

20, when she came into his office and told him that she was “going

to call it off” with Appellant.

Second, Gerald Harris testified that Gibbons was a “real good

friend” from college, and he “considered her like a big sister.”

Gibbons told Harris that she had loaned Appellant money “to help

him out,” and he never paid it back.

Third, Sherrieonce Turnipseed testified that she was Gibbons’s

best friend. To her, it seemed like Gibbons and Appellant were

always arguing. Turnipseed never observed “anything physical

between them,” but Gibbons told her that one time while driving,

Gibbons “had to pull over to the side of the road and they got into a

11
physical fight.” In August or September of 2014, Gibbons told

Turnipseed that Appellant owed her a lot of money. Gibbons

complained every day that she needed the money to pay her bills,

and “she would call him, text him, everything, and then it got to the

point where he blocked her so she couldn’t call, or text, or even send

him messages on Facebook.” Turnipseed let Gibbons use her phone

and Facebook account a couple times to contact Appellant in efforts

to get the money back.

Fourth, JayIvey White, who was Gibbons’s cousin, testified

that she and Gibbons “were more like sisters”; they grew up together

and talked almost daily. JayIvey lived two minutes away from

Gibbons, and they spent a lot of time together. JayIvey also spent

time with Appellant and Gibbons, but Gibbons’s family was not fond

of Appellant. JayIvey noted that when Appellant and Gibbons’s

relationship “was good, it was great, and when it was bad, it was

terrible.” According to JayIvey, at first Gibbons was not excited

about her pregnancy by Appellant, “but she felt that she owed him

12
a baby, so she was going to try to keep it this time.”8 Appellant

seemed excited in the beginning and said he was going to be

supportive, but that changed. They argued about the pregnancy, and

when she lost the baby, “he blamed her for it,” even though “it was

because he gave her an STD and caused the miscarriage.” Gibbons

also told JayIvey about a violent fight that occurred “about maybe a

month before [she died],” during which Gibbons scratched Appellant

and “he punched her and threw her over her couch, and he called

the police on her.” When JayIvey saw a bruise on Gibbons’s arm,

Gibbons said that “there had been other times, but [Gibbons] didn’t

go into any detail.” JayIvey also testified that Gibbons lent

Appellant $1,200 in May 2014. When Gibbons asked for $900 back

to pay her bills, Appellant never paid her. About a week before

Gibbons’s death, she told JayIvey that she did not want to speak to

Appellant anymore and that she did not like him.

Fifth, JayIvey’s husband, Michael White, testified that before

8 In his police interview, Appellant mentioned that he and Gibbons had
lost two prior pregnancies.
13
Gibbons’s death, he saw her at least every other day. Gibbons asked

him to talk to Appellant because they had relationship issues and

she wanted to make it work. He saw Gibbons showing his wife

bruises once around the end of July 2014. He also fixed Gibbons’s

blinds after they were torn down “because of an altercation that

[Gibbons and Appellant] had” in which she went over the back of a

couch.

Sixth and finally, Griffeth testified that she and Gibbons “grew

up in church together.” Since college, they continued their friendship

“mainly on the phone.” She first thought that Appellant was “a sweet

guy,” but with time she realized that Appellant and Gibbons were

“argumentative” with each other. When Gibbons had her

miscarriage, she was in emotional distress and told Griffeth that she

felt Appellant “was blaming her for it.” Gibbons also told Griffeth

that in college, “there was a gun pulled on her [by Appellant], but it

wasn’t used, of course[.]”

(b) Appellant first argues that the State did not prove that

the statements by Gibbons that these witnesses repeated had

14
sufficient “guarantees of trustworthiness” and were “more

probative” than other evidence that reasonably could have been

procured, as Rule 807 requires.

“Statements admissible under Rule 807 are considered

sufficiently trustworthy not because of the credibility of the witness

reporting them in court, but because of the circumstances under

which they were originally made.” Rawls v. State, 310 Ga. 209, 214

(850 SE2d 90) (2020) (citation and punctuation omitted).9 Here, the

circumstances of Gibbons’s statements, namely that they were

statements about abuse and problems in her romantic relationship

made to close friends and family, demonstrate sufficient guarantees

of trustworthiness under Rule 807. See Rawls, 310 Ga. at 215

(holding that the victim’s “close relationship with each of these

witnesses gave her statements to them about the abuse she was

experiencing from her boyfriend sufficient guarantees of

trustworthiness to be admissible under Rule 807”). See also Merritt

9We note that to the extent the witnesses’ testimony was based on their
own observations of the couple’s interactions and of Gibbon’s physical injuries,
such as her bruises, that evidence was not hearsay. See Rawls, 310 Ga. at 216.
15
v. State, 311 Ga. 875, 887 (860 SE2d 455) (2021) (“[A] victim’s

description of prior acts of domestic violence against her to her

family and friends carries an increased level of trustworthiness.”);

Jacobs v. State, 303 Ga. 245, 250-251 (811 SE2d 372) (2018)

(concluding that statements and text messages from the murder

victim to her close friends and confidantes describing the nature of

her relationship with the appellant as well as his “abusive,

controlling, and violent behavior toward [the victim]” had the

requisite guarantees of trustworthiness).

In addition, the witnesses’ testimony about Gibbons and

Appellant’s relationship troubles was highly probative as to his

motive for shooting and killing his longtime girlfriend. See Rawls,

310 Ga. at 215 (holding that testimony about the defendant’s prior

violent acts against his girlfriend showed “the nature of the

relationship between [the defendant] and the victim [and] shed[]

light on [the defendant]’s motive in committing the offense[s]

charged” (citation and punctuation omitted)). Appellant suggests

that the State could have used police reports and medical records,

16
instead of the hearsay testimony, to prove that Gibbons miscarried,

had an STD, and suffered abuse. But even assuming that such

evidence exists and would have been admissible, Appellant has not

shown that it would have been as probative of the nature of Gibbons

and Appellant’s relationship as the statements she made to her close

confidants. See id. See also Smart v. State, 299 Ga. 414, 422 (788

SE2d 442) (2016) (explaining that “in light of the often-secretive

nature of domestic violence,” statements from a murder victim to her

friends and family describing acts of domestic violence can be

“highly probative”). For these reasons, the trial court did not abuse

its discretion in admitting the challenged hearsay testimony –

except perhaps for the testimony of Griffeth, which we will discuss

next.

(c) Appellant argues that Griffeth’s testimony should have

been excluded because he was not given notice of it “in advance of the

trial,” as Rule 807 requires. On the second day of trial, the State filed

a supplemental notice to add the hearsay statements from Griffeth;

she testified two days later, on the last day of trial, giving the

17
testimony summarized in Division 3 (a) above.

Pretermitting whether the trial court abused its discretion by

admitting Griffeth’s testimony because the State’s notice was

untimely, any such error was harmless. 10 A nonconstitutional

evidentiary error “is harmless if it is highly probable that the error

did not contribute to the verdict.” Adkins v. State, 301 Ga. 153, 158

(800 SE2d 341) (2017). Griffeth’s testimony was largely cumulative

of the properly admitted testimony of the other witnesses. And

although Griffeth was the only one of Gibbons’s confidants to testify

that Gibbons said that Appellant once “pulled [a gun] on her” back in

college, the jury had already heard about at least two other incidents

of Appellant’s violence against Gibbons, the jury had seen a video of

Appellant holding a gun around the time of the murder, and the

overall evidence of Appellant’s guilt was strong. Thus, it is highly

10This Court has noted that under Eleventh Circuit precedent, to which
we look for guidance given the similarity between OCGA § 24-8-807 and
Federal Rule of Evidence 807, “failure to provide pretrial notice of Rule 807
evidence is not fatal if the defendant is not harmed by the lack of notice and
had a fair opportunity to address the statements.” Thompson v. State, 302 Ga.
533, 545 (807 SE2d 899) (2017). But we left “for another day the determination
of what constitutes ‘harm’ and ‘fair opportunity’ within the context of
Rule 807.” Thompson, 302 Ga. at 545. We will do the same here.
18
probable that Griffeth’s testimony did not contribute to the verdict.

See Rawls, 310 Ga. at 216 (explaining, under plain-error review, that

“Appellant has not shown that [the witness’s] testimony about one

more physical fight between Appellant and [his murdered girlfriend]

probably affected the outcome of the trial”); Anglin v. State, 302 Ga.

333, 336 (806 SE2d 573) (2017) (“[T]he erroneous admission of

hearsay is harmless where substantial, cumulative, legally

admissible evidence of the same fact is introduced.”).

4. Appellant contends that his trial counsel provided

constitutionally ineffective assistance in three ways. To prevail on

these claims, Appellant must show both that his “counsel’s

performance was deficient” and that “the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(104 SCt 2052, 80 LEd2d 674) (1984). “To prove deficient

performance, Appellant must show that his counsel performed in an

objectively unreasonable way considering all the circumstances and

in the light of prevailing professional norms.” Rawls, 310 Ga. at 220.

To prove prejudice, Appellant “must show that there is a reasonable

19
probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland, 466 U.S.

at 694. See also Rawls, 310 Ga. at 220.

(a) Appellant first contends that his trial counsel was

ineffective in making only a “tepid” argument that, under Rule 807,

the State was required to show that the hearsay testimony discussed

in Division 3 above was more probative than any other evidence that

could reasonably be procured. However, as explained in that

division, in which we assumed that trial counsel properly preserved

Appellant’s claims, the evidence met this Rule 807 requirement.

Appellant has not specified what else his trial counsel supposedly

should have argued that would have altered this conclusion. 11 Thus,

this ineffective-assistance claim fails. See Stuckey v. State, 301 Ga.

11 To the extent Appellant argues that his trial counsel performed
deficiently by failing to contend that Rule 807 requires the trial court to make
an explicit finding about the hearsay evidence’s probative value, Appellant’s
argument fails because we have held that “[n]othing in [Rule 807] requires a
trial court to make on-the-record determinations” about each of the rule’s
requirements before admitting hearsay under the rule. Smith v. State, 311 Ga.
288, 291 (857 SE2d 698) (2021). And as discussed above, the trial court did not
abuse its discretion in ruling, albeit without making specific findings, that this
requirement of Rule 807 was met.
20
767, 773 (804 SE2d 76) (2017) (“Failure to make a meritless

objection cannot be considered deficient or prejudicial.”). See also

Washington v. State, 312 Ga. 495, 503 (863 SE2d 109) (2021)

(“[D]eficiency cannot be demonstrated by merely arguing that there

is another, or even a better, way for counsel to have performed.”

(citation and punctuation omitted)); Brown v. State, 303 Ga. 617,

621 (814 SE2d 364) (2018) (holding that trial counsel’s performance

was not deficient in allegedly failing to cross-examine a witness

about a particular issue when counsel did explore that issue on

cross-examination and the appellant presented no argument as to

how counsel could have better developed that issue).

(b) Appellant also contends that his trial counsel provided

ineffective assistance by failing to argue that Appellant’s full

interview with two detectives on October 23, 2014, should have been

suppressed because it was custodial from the beginning but

Appellant was not warned of his rights under Miranda v. Arizona,

384 U.S. 436 (86 SCt 1602, 16 LEd2d 694) (1966), until about four

21
hours into the interview. 12 The record, however, shows that the

interview was not custodial at the beginning, and Appellant was

given the Miranda warnings when it became custodial.

Appellant was interviewed by Detectives Richard Boyle and

Chris Brogden. They approached Appellant at a vigil held at

Gibbons’s mother’s house in Athens, and Appellant agreed to drive

to the police station in his mother’s car to discuss Gibbons’s

whereabouts. The interview room was at the back of the police

station. Although the door was not locked, the room was monitored

from a “bullpen” area right outside. 13 The interview began at

12:30 p.m. and lasted about nine hours, including some lengthy

12 Appellant’s trial counsel did seek to suppress statements that
Appellant made in the interview after he allegedly invoked his right to counsel
(which was about an hour after he was read the Miranda warnings). The trial
court held a Jackson-Denno hearing, see Jackson v. Denno, 378 U.S. 368 (84
SCt 1774, 12 LE2d 908) (1964), at which the two interviewing detectives
testified and the video-recorded interview was admitted into evidence. The
trial court ruled that the statements made after Appellant’s alleged invocation
of counsel were admissible, but the State ultimately chose not to offer those
statements into evidence at trial.
13 It is not clear from the record if the door was kept closed during the

interview.

22
breaks.14 During the interview, Appellant was not restrained, and

he was given food and water as well as bathroom and cigarette

breaks. During the breaks, he left the room accompanied by an

officer.

At the start of the interview, Detective Boyle told Appellant

that the investigation was in its infancy and that the detectives were

just gathering information. Appellant was not read the Miranda

warnings at that point. Over the next four hours, Appellant shared

the information discussed in Division 1 above, and he gave the

detectives permission to examine and download the contents of his

cell phone. After Appellant repeatedly contradicted himself as well

as other evidence, including his text messages, Detective Boyle

informed him that “the pretense [of the conversation] had

changed . . . [to] an in-custody interview” and that “right now [he

was] not free to leave.” Detective Boyle then read Appellant the

Miranda warnings, which Appellant said he understood. The

14 The video recording of the interview lasts about 11 hours, but during
the last two hours, the detectives did not question Appellant.
23
detectives then resumed questioning Appellant for about five more

hours, stopping when he said, “Now I will need my lawyer; I would

like a lawyer now.”

A person is deemed to be in custody, requiring Miranda

warnings before interrogation, when he is “(1) formally arrested or

(2) restrained to the degree associated with a formal arrest.”

DeVaughn v. State, 296 Ga. 475, 479 (769 SE2d 70) (2015) (citation

and punctuation omitted). “Unless a reasonable person in the

suspect’s situation would perceive that he was in custody, Miranda

warnings are not necessary.” Id. (citation and punctuation omitted).

The record here supports a finding that Appellant’s interview, to

which he drove himself and which was conducted while he was

unrestrained in an unlocked room that he occasionally left for

breaks, was not custodial until Detective Boyle told him that he was

no longer free to leave and read him the Miranda warnings. See,

e.g., Drake v. State, 296 Ga. 286, 289-290 (766 SE2d 447) (2014)

(concluding that a defendant was not in custody during the initial

part of a series of video-recorded interviews when he willingly

24
agreed to accompany officers to the police station, was initially told

that he was not under arrest, was given food and water, and was not

handcuffed or physically restrained until the police decided to arrest

him and read him the Miranda warnings after he provided shifting

accounts); Leslie v. State, 292 Ga. 368, 372 (738 SE2d 42) (2013)

(concluding that a defendant was not in custody, and the police were

not required to give him the Miranda warnings before starting to

question him, when he drove himself to the police station, spoke with

the investigator in an unlocked interview room, was not restrained,

and was free to leave).

Thus, a motion to suppress the entire interview on the ground

now proposed by Appellant would not clearly have succeeded, and

his trial counsel was not ineffective in failing to make such a motion.

See Evans v. State, 308 Ga. 582, 586 (842 SE2d 837) (2020) (“Where,

as here, [a defendant] claims that trial counsel was deficient for

failing to file a motion to suppress, the defendant must make a

strong showing that the damaging evidence would have been

suppressed had counsel made the motion.” (citation and punctuation

25
omitted)).

(c) Appellant’s final ineffective assistance claim is based on

his trial counsel’s alleged overall failure to prepare for trial.

Although Appellant argues generally that his trial counsel failed to

review discovery, misrepresented Georgia law, refused to question

lay witnesses, and failed to question the credentials of the State’s

expert witnesses, Appellant does not identify any specific instances

to support these broad allegations. Instead, the record and trial

counsel’s testimony at the motion for new trial hearing show that

counsel reviewed discovery with Appellant, filed a successful motion

to suppress bad character evidence, and cross-examined the

witnesses. Thus, Appellant has failed to demonstrate either

deficient performance or prejudice. See Lane v. State, 299 Ga. 791,

795-796 (792 SE2d 378) (2016) (“[Appellant] presents no evidence,

or even assertion, as to what further investigation or preparation

might have produced that would have made a difference in the

outcome of his trial. Consequently, [Appellant] fails to show

ineffective assistance of trial counsel on this ground.”); Tepanca v.

26
State, 297 Ga. 47, 51 (771 SE2d 879) (2015) (“[Appellant] leaves this

Court to engage in a guessing game as to how appellate counsel’s

representation, or rather lack thereof, might have amounted to

ineffective assistance. Under these circumstances, [Appellant] has

failed to show even a possibility of ineffective assistance.”).

Judgment affirmed. All the Justices concur.

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