Harris v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: May 3, 2022

S22A0251. HARRIS v. THE STATE.

PETERSON, Justice.

Jordan Robert Harris appeals his convictions for felony murder

and other charges stemming from the July 2010 shooting of Walter

Phelps during the robbery of Phelps’s store; Phelps died from blood

clots over a month after the shooting. 1 Harris argues that the

Phelps was shot on July 3, 2010. On October 27, 2010, a Dougherty
1

County grand jury indicted Harris along with five other defendants. The
indictment charged Harris with two counts of felony murder (predicated on
armed robbery and aggravated assault), armed robbery, three counts of
aggravated assault (committed against Phelps, Teresa Fletcher, and Carl
Terrell), conspiracy to commit armed robbery, conspiracy to commit felony
murder, three counts of possession of a firearm during the commission of a
felony, and financial transaction card fraud. Along with co-defendant Ezekiel
James, Harris was tried before a jury in August 2014. The jury found Harris
guilty on all charged counts. On January 7, 2015, the trial court sentenced
Harris to serve life in prison for felony murder (predicated on armed robbery),
20-year prison sentences for the two counts of aggravated assault committed
against Fletcher and Terrell (concurrent with the life sentence), consecutive
five-year sentences for each of the three firearms counts (concurrent with one
evidence presented at his trial was insufficient to support his

convictions and that the trial court erred by admitting other-acts

evidence, unreliable identifications of him, evidence marred by

violations of Brady 2 and Georgia’s criminal discovery statute, and

inadmissible hearsay. We conclude that the evidence was sufficient

and the trial court did not abuse its discretion in admitting the

identification or other-acts evidence. We conclude that any error in

the admission of the alleged hearsay was harmless. And we conclude

that Harris has not shown a Brady violation and waived any claim

of error under the discovery statute. We therefore affirm.

The evidence presented at trial showed that Phelps owned the

P&P Garden Center in Dougherty County. On July 3, 2010, Phelps

arrived at the store around 7:00 a.m. to prepare for its opening.

Shortly after Phelps arrived, a man came into the store, wearing a

another), and a concurrent three-year sentence for the credit card fraud count.
The other counts merged or were vacated by operation of law. Harris filed a
motion for new trial on January 15, 2015; the motion was amended by
appellate counsel on June 30, 2020. The trial court denied the motion in an
order entered on March 18, 2021. Harris filed a timely notice of appeal and the
case was docketed to this Court’s term beginning in December 2021 and
submitted for consideration on the briefs.
2 Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

2
hoodie and keeping his hand in his pockets. The man asked for work,

then left. At around 7:35 a.m., Phelps’s friend Mercer Garrett came

by, and Phelps, who seemed rattled, reported that he had just been

visited by a man who had asked for work and seemed suspicious.

Garrett left after a few minutes. The suspicious man returned, shot

Phelps, then asked where the store’s money was kept.

An employee of the store, Teresa Fletcher, arrived at about 7:45

a.m. and found Phelps lying on the floor with a gunshot wound. A

man pointed a gun at Fletcher and then at other employees who

subsequently arrived — Carl Terrell and Ryan Richardson3 — as the

man attempted to find the store’s cash. The man, whom Fletcher

later identified as Harris, demanded that the employees empty their

pockets. Interrupted by additional store employees, Harris grabbed

the cash register, placed it in a bag, and left with the bag and

Phelps’s keys and wallet.

When EMTs arrived, they found Phelps in poor condition,

3 Richardson was among those indicted along with Harris for felony
murder and other offenses. Richardson pleaded guilty to various counts prior
to Harris’s trial but did not testify at that trial.
3
bleeding profusely. Phelps was only semi-conscious when

transported to a hospital. He gave a statement to an investigator at

the hospital on the day of the shooting, as well as on July 13; both

statements were recorded and played for the jury. In the second

statement, Phelps described the suspicious man who had entered

the store, left, then returned and shot him. Phelps described the

shooter as a light-skinned black male in his late teens or early

twenties, around six feet tall, and weighing 160 to 180 pounds.

Phelps was shown photo lineups that did not include Harris; Phelps

did not identify anyone as the shooter, although he said one person

looked familiar.

The doctor who treated Phelps in the emergency room

described his gunshot wounds as life-threatening. She said that

Phelps appeared to be otherwise healthy and showed no signs of

blood clots. After surgery, Phelps was assigned an ICU bed; the

doctor who cared for him there noted no history of blood clots. Phelps

was released from the hospital on July 24, 2010. Although he was

ambulatory while at home, he remained on oxygen and had physical

4
limitations. Phelps returned to the hospital on August 7, 2010, and

died that same day.

The medical examiner who performed Phelps’s autopsy

testified that Phelps’s death was caused by blood clots that resulted

from the gunshot wound to Phelps’s torso. She testified that two of

the three primary risk factors for blood clots — immobility and

physical trauma — were present as a result of the Phelps’s gunshot

wound. She ruled out other possible causes of clots, including

Phelps’s genetics, age, weight, smoking history, heart issues, and

other health history.

In addition to Fletcher’s out-of-court and in-court identification

of Harris, he also was implicated in the shooting by co-defendant

Jamon Carter, who pleaded guilty to related charges prior to the

trial of Harris and co-defendant Ezekiel James.4 Carter testified at

Harris’s trial that in late June 2010, Harris discussed plans to “do a

lick” at the P&P store to get some money to purchase clothing at a

4 The jury found James guilty of financial transaction card fraud but not
guilty of the other charges against him.
5
Polo outlet store, with James serving as the driver. Carter testified

that he, Harris, James, and another man went to the Polo store on

July 3, the day of the shooting, and Harris paid for items selected by

each of the men with a credit card. Carter identified Harris in a

surveillance video recording from the Polo store. Carter also testified

to conversations with James after the surveillance video was aired

on the news in which James said, “we was on the news,” and

wondered aloud “why [Harris] shot the man.”

As detailed further in Division 3, the State also introduced

evidence of three prior armed robberies of convenience stores

committed by Harris.

1. Harris argues that the evidence is insufficient to support

his convictions for three reasons. We disagree.

When evaluating the sufficiency of evidence as a matter of

constitutional due process, we must determine whether a rational

trier of fact could have found the defendant guilty beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt

2781, 61 LE2d 560) (1979). In making that determination, “we view

6
the evidence in the light most favorable to the verdict, and we put

aside any questions about conflicting evidence, the credibility of

witnesses, or the weight of the evidence, leaving the resolution of

such things to the discretion of the [jury].” Wilkerson v. State, 307

Ga. 574, 574 (837 SE2d 300) (2019) (citation and punctuation

omitted). “As long as there is some competent evidence, even if

contradicted, to support each fact necessary to make out the State’s

case, the jury’s verdict will be upheld.” Scott v. State, 309 Ga. 764,

766 (1) (848 SE2d 448) (2020) (citation and punctuation omitted).

(a) First, Harris argues that the evidence presented at trial

was insufficient to sustain his convictions generally because the

State failed to prove that he was the person who shot Phelps. In

support of this argument, he argues that Fletcher’s pretrial and in-

person identifications of him never should have been admitted

because, as discussed in more detail in Division 2, the identifications

allegedly were unreliable and the product of impermissibly

suggestive procedures. But “in reviewing the sufficiency of the

evidence, we consider all of the evidence admitted by the trial court,

7
regardless of whether that evidence was admitted erroneously.”

Chavers v. State, 304 Ga. 887, 892 (2) n.4 (823 SE2d 283) (2019)

(citation and punctuation omitted). Harris also argues that this

Court “should weigh Ms. Fletcher’s credibility and her inconsistent

statements against the State.” But as noted above, that was a

matter for the jury. The State presented ample evidence, including

the testimony of Carter and Fletcher, for the jury to conclude that

Harris shot Phelps.

(b) Harris next argues that the evidence was insufficient to

sustain his felony murder conviction because the State did not prove

a nexus between the shooting and Phelps’s death from blood clots.

We disagree. A person commits felony murder when, “in the

commission of a felony, he or she causes the death of another human

being irrespective of malice.” OCGA § 16-5-1 (c). “The element of

causation is determined under the proximate cause standard.”

Campbell-Williams v. State, 309 Ga. 585, 587 (2) (a) (847 SE2d 583)

(2020). “Proximate causation imposes liability for the reasonably

foreseeable results of criminal conduct if there is no sufficient,

8
independent, and unforeseen intervening cause.” Treadaway v.

State, 308 Ga. 882, 884 (1) (843 SE2d 784) (2020) (citation and

punctuation omitted).

An unlawful injury is the proximate cause of death when:
(1) the injury itself constituted the sole proximate cause
of death; or (2) the injury directly and materially
contributed to the happening of a subsequent accruing
immediate cause of death; or (3) the injury materially
accelerated the death, although proximately occasioned
by a pre-existing cause.

Id. (citation omitted).

Here, the evidence showed that Phelps developed blood clots

only after Harris shot him in the torso. The doctor who treated

Phelps’s life-threatening wounds stated that Phelps appeared to be

otherwise healthy and showed no signs of blood clots. The medical

examiner testified that Phelps’s death was caused by blood clots

resulting from his gunshot wound. She ruled out possible causes of

clots unrelated to the shooting, such as weight and health history.

Moreover, “[w]hether [Harris]’s actions were the sole cause of

[Phelps]’s death or would have otherwise caused his death under

different circumstances is immaterial.” Treadaway, 308 Ga. at 885

9
(1). “[T]he offender takes [his] victim as [he] finds him.” Id. (citation

and punctuation omitted). The State thus provided the jury with

sufficient evidence to conclude that the shooting was the proximate

cause of Phelps’s death. See Eberhart v. State, 307 Ga. 254, 261-262

(2) (a) (835 SE2d 192) (2019) (evidence sufficient to uphold

defendant’s felony murder conviction predicated on aggravated

assault where medical examiner testified that the victim died from

hypertensive cardiovascular disease exacerbated by physical

exertion and application of TASER by defendant); Bryant v. State,

270 Ga. 266, 268-269 (1) (a) (507 SE2d 451) (1998) (evidence

sufficient to sustain felony murder convictions notwithstanding that

gunshot victim who suffered blood clot previously suffered from

some conditions that might have put her at risk for a clot).

(c) In his final challenge to the sufficiency of the evidence,

Harris argues that the evidence was insufficient to sustain his

conviction for the aggravated assault of Terrell and the associated

firearm conviction. The aggravated assault count at issue charged

Harris with assaulting Terrell “with intent to rob by pointing a

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handgun, a firearm, and a deadly weapon . . . at Carl Terrell and

demanding United States currency and/or valuables[.]” Harris

claims that the evidence was insufficient to support his conviction

on this count because there was no testimony that Harris attempted

or intended to rob Terrell. The count at issue required the State to

prove not only that Harris had assaulted Terrell, but that he did so

with the intent to rob. See Thomas v. State, 292 Ga. 429, 433 (4) (738

SE2d 571) (2013). But although Terrell testified that he did not see

anyone other than Richardson during the robbery and that the

gunman did not ask for any wallet or money or threaten to harm

him, Fletcher testified that Harris told “everyone,” which

necessarily includes Terrell, to take what they had out of their

pockets. The testimony of a single witness is generally sufficient to

prove a fact. See OCGA § 24-14-8.5 And again, conflicts in the

evidence are for the jury to resolve. The jury was authorized to

5 The jury also heard testimony that the gunman sought money
belonging to the store as Terrell lay on the floor. But given Fletcher’s testimony
that Harris told “everyone” to empty their pockets, we need not consider
whether Harris’s intent to rob the store was sufficient to satisfy the intent-to-
rob element as to the aggravated assault of Terrell.
11
conclude that Harris assaulted Terrell with an intent to rob.

2. Harris next argues that the trial court erred in admitting

Fletcher’s pretrial and in-court identifications of him. He contends

that this violated his due process rights because the pretrial

identification procedure was unreliable and Fletcher’s in-court

identification was tainted by it. We disagree.

More than two months after the shooting, Fletcher was shown

a photo lineup in which she identified Harris’s photo as that of the

store robber. Harris filed a motion to suppress the pretrial, and any

in-court, identification by Fletcher. The investigator who conducted

the lineup with Fletcher testified at a pretrial hearing that in

selecting photos, he used software that suggested pictures based on

Harris’s height and weight. He testified that he selected five photos

from those suggestions and that all were of persons of the same race

and gender as Harris, with similar facial characteristics. The

investigator testified that his procedure in conducting a lineup is to

tell the witness to be careful, take as much time as necessary, and

look at each photo individually. He testified that he told Fletcher

12
that the perpetrator may or may not be in the lineup. In her

testimony, Fletcher did not seem to recall this final admonition, but

she did remember that the investigator did not indicate who the

police suspected was the perpetrator.

The trial court summarily denied the motion to suppress.

Following a recess in the middle of Fletcher’s trial testimony, Harris

made a renewed objection to her pretrial identification; the trial

court gave Harris a continuing objection.

Harris first argues that the pretrial lineup was impermissibly

suggestive. “If an out-of-court identification by a witness is so

impermissibly suggestive that it could result in a substantial

likelihood of misidentification, evidence of that out-of-court

identification violates due process and is inadmissible at trial.”

Westbrook v. State, 308 Ga. 92, 99 (4) (839 SE2d 620) (2020) (citation

and punctuation omitted). An identification procedure is

impermissibly suggestive when “it leads the witness to the virtually

inevitable identification of the defendant as the perpetrator, and is

the equivalent of the authorities telling the witness, ‘This is our

13
suspect.’” Id. (citation and punctuation omitted). “We review a trial

court’s determination that a lineup was not impermissibly

suggestive for an abuse of discretion.” Id.

In arguing that the lineup was impermissibly suggestive,

Harris first notes that he was the only person in the lineup whom

Fletcher had seen previously. But Fletcher testified at the hearing

that she had stopped watching news about the shooting and did not

recall identifying anyone in the Polo outlet surveillance video that

she was shown.6 Cf. Kirkland v. State, 310 Ga. 738, 742-743 (2) (c)

(854 SE2d 508) (2021) (rejecting argument based on the witness’s

having been shown a photograph of the defendant by a neighborhood

friend prior to his police interview because this had no bearing on

whether the police’s conduct was unduly suggestive and the witness

testified that he could not remember whose picture the friend had

shown him).

Harris next argues that the lineup procedure was

6Fletcher testified at trial that the recording that she was shown out of
court was too blurry for her to recognize anyone.
14
impermissibly suggestive because the officer who conducted the

lineup knew that Harris was the suspect. Citing a psychology

journal article, Harris argues that this was particularly problematic

because the officer did not “take precautions” to ensure that he did

not provide “conscious or unconscious cues” that Harris was the

suspect. But Harris does not specify what the officer should have

done differently, except to the extent that he argues that a photo

lineup must be presented by someone who does not know the

suspect’s identity. “There is no authority supporting [such an]

argument. To the contrary, statutory law contemplates photo

lineups being administered by police officers who know the identity

of a suspect.” Kirkland, 310 Ga. at 741 (2) (a).7 The evidence

7 Kirkland cites OCGA § 17-20-2 (b) (2) (B) for this proposition. This
statute says that law enforcement agency lineup policies should provide that
where the officer conducting the lineup knows the identity of the suspect,
photographs should be “placed in folders, randomly shuffled, and then
presented to the witness so that the individual conducting such procedure
cannot physically see which photograph is being viewed by the witness until
the procedure is complete[.]” Harris does not specifically allege a violation of
this statute, and the investigator testified at the hearing that after he gave
Fletcher various admonishments, he “just handed her the lineup and let her
look at it.” In any case, any violation of the statute does not automatically
require exclusion; rather, it is just one factor a court may consider when an

15
supports the trial court’s implicit conclusion that the lineup was not

impermissibly suggestive. See Westbrook, 308 Ga. at 99 (4) (evidence

supported the trial court’s conclusion that photographic lineup was

not impermissibly suggestive where lineup consisted of photographs

of six men of the same race and with similar hairstyles and short

facial hair, investigators superimposed marks similar to defendant’s

tattoos on each of the photos, and investigator gave witness various

standard admonitions); Bowen v. State, 299 Ga. 875, 879 (4) (792

SE2d 691) (2016) (holding that photographic lineup was not

impermissibly suggestive where lineup consisted of photographs of

six men of the same race and similar hairstyles, and witnesses were

read the standard admonition and not threatened or told which

picture to choose).

Harris also argues that Fletcher’s pretrial identification of him

should have been excluded because there is a substantial likelihood

of misidentification for other reasons, such as the stressful nature of

identification is challenged. See Kirkland, 310 Ga. at 741-742 (2) (a) (citing
OCGA § 17-20-3).

16
Fletcher’s interaction with the gunman and her inconsistent

descriptions of him. 8 But “where the identification procedure is not

unduly suggestive, it is not necessary to consider whether there was

a substantial likelihood of irreparable misidentification.” Westbrook,

308 Ga. at 99 (4) (citation and punctuation omitted). We see no abuse

of discretion in the trial court’s admission of Fletcher’s pretrial

identification of Harris. And because Harris’s argument that

Fletcher’s in-court identification was improper depends on his claim

that her pretrial identification was fatally flawed, it fails as well.

3. Harris next argues that the trial court erred by admitting

certain other-acts evidence. We conclude that the trial court did not

abuse its discretion.

The other acts involved robberies of two different convenience

stores in Dougherty County (for which Harris had been convicted in

8 Fletcher gave a general description of the gunman to a 911 operator,
describing the person as a black male and giving varying possible heights for
the gunman — 6’4”, 6’5”, 6’8”, and 6’9”. She later estimated his height at 5’6”,
5’8”, or 5’9”, said he weighed about 165 pounds, and said that she could not
remember any particular facial feature, such as facial hair, of the gunman. Jail
records show Harris’s height as 5’9” and his weight as 185 pounds.
17
a 2011 trial) and a robbery of a convenience store in Lee County (for

which Harris previously had entered a guilty plea). Harris objected

to the admission of the evidence on the grounds that it was not

admissible for a proper purpose and any legitimate probative value

was outweighed by its prejudice. In a pretrial order, the trial court

ruled that the other-acts evidence was admissible under OCGA § 24-

4-404 (b) (“Rule 404 (b)”) to show motive, opportunity, plan,

knowledge, and intent. At trial, the State presented witness

testimony regarding the Lee County robbery and one of the

Dougherty County robberies. The State was permitted to read the

prior testimony of a witness to the other Dougherty County robbery.

It also introduced certified copies of Harris’s convictions stemming

from the three robberies, all of which took place on February 26,

2009. The trial court gave limiting instructions to the jury both when

the other-acts evidence was introduced and in its final charge.

We review the trial court’s decision to admit evidence pursuant

to Rule 404 (b) for abuse of discretion. See Jackson v. State, 306 Ga.

69, 76 (2) (b) (829 SE2d 142) (2019). Other-acts evidence is not

18
admissible “to prove the character of a person in order to show action

in conformity therewith.” OCGA § 24-4-404 (b). Nevertheless, such

evidence is admissible for other purposes, including “proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Id. A party offering evidence

pursuant to Rule 404 (b) must demonstrate that: (1) it is relevant to

an issue in the case other than the defendant’s character; (2) its

probative value is not substantially outweighed by the danger of

unfair prejudice it poses; and (3) sufficient proof exists for a jury to

find by a preponderance of the evidence that the defendant

committed the other act. See Kirby v. State, 304 Ga. 472, 479 (4) (819

SE2d 468) (2018).

On appeal, Harris addresses only the first prong of that test,

arguing that the other-acts evidence was not relevant for a proper

purpose. We disagree. “Because [Harris] entered a plea of not guilty,

[he] made intent a material issue, and the State may prove intent

by qualifying Rule 404 (b) evidence absent affirmative steps by the

defendant to remove intent as an issue.” Hood v. State, 309 Ga. 493,

19
499-500 (2) (847 SE2d 172) (2020). Harris has pointed to no step he

took to remove intent as an issue. Several charged offenses in this

case — felony murder predicated on armed robbery, armed robbery,

and aggravated assault with intent to rob — required the State to

prove that Harris had the intent to rob. See Johnson v. Williams,

304 Ga. 771, 773 (822 SE2d 264) (2018) (armed robbery and

aggravated assault with intent to rob both require proof of intent to

rob). Each of the three other acts resulted in an armed robbery

conviction which, again, required proof of intent to rob. Therefore,

the other-acts evidence was relevant to intent, which is a proper

purpose.

Harris does not challenge the admission of the other-acts

evidence on any other basis, including whether its probative value

(which may have been limited, given ample other evidence of intent)

was outweighed by the danger of unfair prejudice. Accordingly,

Harris has not shown that the trial court abused its direction in

determining that the evidence was admissible under Rule 404 (b).

And although the other-acts evidence was also admitted for

20
purposes other than intent, Harris disputes only the admission of

the evidence; he makes no claim that, notwithstanding its admission

for intent, he was harmed by the trial court’s instruction that the

evidence could also be used for other purposes. This claim fails.

4. Harris argues that the trial court erred in admitting two

instances of hearsay, one of them part of the other-acts evidence: (1)

the State’s reading of testimony from his prior armed robbery trial,

and (2) Phelps’s statements to Garrett.9 We conclude that any error

in this regard was harmless.

(a) At the trial in this case, the State presented to the court

testimony regarding its unsuccessful efforts to locate a witness,

Angela Hunter, who had testified in Harris’s prior trial for the

February 2009 robberies in Dougherty County. Over a defense

objection, the trial court admitted Hunter’s prior testimony under

OCGA § 24-8-804 (b) (1), and the State was permitted to read that

prior testimony to the jury, including objections and cross-

9 Harris makes reference to “the confrontation clause” in his
enumerations of error but makes no actual argument apart from Georgia’s
Evidence Code.
21
examination.

OCGA § 24-8-804 (b) (1) provides that “[t]estimony given as a

witness at another hearing of the same or a different proceeding”

may be admissible “if the party against whom the testimony is now

offered . . . had an opportunity and similar motive to develop the

testimony by direct, cross, or redirect examination.” The parties

argue about whether Harris’s motive to develop Hunter’s testimony

was similar in the prior proceeding and his trial in this case, but

even if this issue was preserved,10 we need not resolve the parties’

dispute.

It is fundamental that harm as well as error must be
shown for reversal. The test for determining
nonconstitutional harmless error is whether it is highly
probable that the error did not contribute to the verdict.
In determining whether trial court error was harmless,
we review the record de novo, and we weigh the evidence
as we would expect reasonable jurors to have done so as
opposed to viewing it all in the light most favorable to the
jury’s verdict.

Henderson v. State, 310 Ga. 708, 713 (3) (854 SE2d 523) (2021)

10It is unclear whether the defense objected to this testimony on hearsay
grounds; the defense argued in objection to Hunter’s testimony that none of the
other-acts evidence should have been admitted.
22
(citations and punctuation omitted); see also OCGA § 24-1-103 (a)

(“Error shall not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is

affected . . . .”). Any error in the admission of Hunter’s testimony

was harmless, as it is highly probable that it did not contribute to

the verdicts. The jury had already heard evidence of two other

similar robberies. The trial court had admitted certified copies of

Harris’s convictions stemming not only from those robberies, but

also the one that was the subject of Hunter’s testimony. Other

evidence against Harris included Fletcher’s pretrial and in-court

identifications of him as the gunman in the robbery in this case.

Little marginal harm arose from the admission of Hunter’s prior

testimony, and any error therein does not provide a basis for

reversal. See Kirby, 304 Ga. at 487 (4) (c) (concluding that improper

admission of prior violent act was harmless where other Rule 404

(b) evidence of violent crimes was admitted along with compelling

evidence of defendant’s guilt).

(b) Harris also argues that the trial court erred in admitting

23
Garrett’s testimony as to Phelps’s statement to him about the

suspicious man who had come into the store the morning of the

shooting. Again, we conclude that any error in this regard was

harmless.

Garrett testified to Phelps’s statement over a hearsay and

Confrontation Clause objection by Harris. The trial court ruled that

the testimony was admissible under the present sense impression

exception to the hearsay rule. See OCGA § 24-8-803 (1). Harris

argues that the State did not provide a sufficient foundation that

Phelps’s statements to Garrett about a suspicious individual were

sufficiently contemporaneous with that encounter to overcome his

hearsay objection. The State responds that the evidence was

admissible as a present sense impression or, alternatively, as an

excited utterance excluded from the hearsay rule under OCGA § 24-

8-803 (2).

We need not resolve that issue, as it is highly probable that

Garrett’s testimony about what Phelps said to him did not

contribute to the verdict. Garrett testified that Phelps’s statement

24
described the suspicious man merely as “a black male” with “a hood

on”; this did not implicate Harris in any particular way. The jury

also heard both of Phelps’s recorded statements to an investigator

in which Phelps described in greater detail the suspicious individual

who later returned and shot him, and Harris does not challenge the

admission of those statements in this appeal. Any error in the

admission of Phelps’s statement to Garrett is not a reason to

reverse.11

5. Harris argues that he was denied due process under

Brady because the State somehow thwarted his access to a plea

allocution by co-defendant Carter. We disagree.

At a pretrial hearing, Carter’s attorney testified that she

recalled that Carter had pleaded guilty to charges related to Phelps’s

death in November 2012. There also was some indication — in the

11Harris does not explicitly argue that his convictions should be reversed
due to any cumulative prejudice of multiple trial court errors. See State v.
Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[E]ven in the evidentiary
context, a defendant who wishes to take advantage of the [cumulative-error]
rule that we adopt today should explain to the reviewing court just how he was
prejudiced by the cumulative effect of multiple errors.”). We nonetheless have
considered the cumulative effect of the admission of Hunter’s prior testimony
and Phelps’s statement to Garrett and see no reason to reverse.
25
form of a news media article attached as an exhibit to a defense

motion — that a prosecutor referenced a guilty plea by Carter in a

news media interview in January 2013. But apparently, no

transcript of any November 2012 guilty plea by Carter could be

located by the parties or the court. 12 In June 2014, Harris filed a

motion to exclude Carter’s testimony, arguing that the State’s

failure to notify Harris of the terms of Carter’s negotiations and to

preserve transcripts and other court documents relating to Carter’s

2012 plea and allocution amounted to a Brady violation. The trial

court denied the motion, deeming it “unlikely” that the plea hearing

had taken place, given the lack of documentation of such a hearing.

The court also concluded that any failure to ensure that documents

were properly maintained and preserved was not the prosecutor’s

fault, but that of the judge, court staff, or the court reporter.

Under Brady and Giglio v. United States, 405 U.S. 150 (92 SCt

763, 31 LE2d 104) (1972), “the State violates due process when it

12 Regardless of whether Carter had entered such a plea in November
2012, it is clear that he did so in the same case on May 5, 2014.
26
suppresses evidence that materially undermines witness

credibility.” Thomas v. State, 311 Ga. 706, 711 (1) (a) (859 SE2d 14)

(2021) (citation and punctuation omitted). To prevail on such a

claim, a defendant must show that

(1) the State possessed evidence favorable to his defense;
(2) he did not possess the favorable evidence and could not
obtain it himself with any reasonable diligence; (3) the
State suppressed the favorable evidence; and (4) had the
evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the trial would have
been different.

Id. at 711-712 (1) (a) (citation and punctuation omitted). The burden

of proof on these elements lies with the defendant. See State v. Hill,

295 Ga. 716, 720 (763 SE2d 675) (2014). We review a trial court’s

factual findings regarding a Brady claim for clear error but review

the court’s application of the law to the facts de novo. See State v.

Thomas, 311 Ga. 407, 414 (3) (a) (858 SE2d 52) (2021).

Here, Harris has failed to show that the State possessed

evidence favorable to the defense, let alone that the State

suppressed such evidence. The trial court deemed it unlikely that

Carter made a plea allocution in November 2012. We cannot

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conclude on this record that this finding was clearly erroneous. The

State could not possess, let alone suppress, records that do not exist.

See Brannon v. State, 298 Ga. 601, 605 (3) (a) (783 SE2d 642) (2016)

(“Although appellant disputes the trial court’s finding that the type

of notes he sought to compel did not exist, mere speculation is

insufficient to substantiate appellant’s claim that the State withheld

exculpatory evidence which prejudiced his defense.”). And the trial

court at least implicitly found that in the unlikely event that the

plea hearing did take place, the records were lost by court staff.

“Brady requires information to be revealed only when it is possessed

by the prosecutor or anyone over whom the prosecutor has

authority.” Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994)

(citation and punctuation omitted). Harris failed to show a Brady

violation with respect to any records of a November 2012 allocution

by Carter.

6. Finally, Harris argues that the trial court erred in

allowing the State to present other-acts evidence regarding the

subject of his prior armed robbery trial despite the State’s failure to

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comply with Georgia’s reciprocal discovery statute, OCGA § 17-16-1

et seq.13 We conclude that Harris waived any such argument and see

no error.

In the weeks prior to trial, the defense apparently experienced

some difficulty in obtaining certain evidence concerning Harris’s

2011 Dougherty County armed robbery trial from the clerk’s office.

Harris filed a motion asking the trial court to (1) compel the clerk to

release the evidence per a prior court order and (2) suppress any

evidence from the prior trial based on the State’s bad faith either in

failing to provide requested documents or hindering the defense’s

attempts to obtain documents from the clerk. 14 At a hearing on the

Friday before the Monday start of trial, Harris claimed that he had

not received two digital or photographic exhibits and was unable to

play two videos that he had received. The trial court denied the

13 To the extent that Harris also purports to enumerate as error a Brady
violation with respect to records from his prior trial, he has abandoned such a
claim by failing to make any argument in support of it on appeal. See Supreme
Court Rule 22 (“Any enumerated error not supported by argument or citation
of authority in the brief shall be deemed abandoned.”).
14 The motion cited OCGA § 17-16-6, but not Brady.

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request to suppress the evidence, saying that the State had not

encouraged the clerk to disobey the court’s prior order. The court

also indicated that it would direct the clerk to produce any

outstanding evidence immediately and invited the defense to

request a continuance. The State noted that the two videos the

defense claimed it had been unable to play had been played in court,

and the trial court indicated that it would facilitate the defense’s

further review of those videos. At the close of the hearing, Harris’s

counsel indicated that she wanted an opportunity to review the

evidence before it was presented at trial; the trial court responded,

“Absolutely”; and Harris’s counsel told the court, “We can forge

ahead[.]” Before the State began its presentation of the prior

testimony of Hunter, the missing witness to one of the 2009

Dougherty County robberies, Harris noted that he previously had

objected on the ground that he had not received the transcript of

that testimony in a timely fashion in compliance with the reciprocal

discovery statute; the court said the objection was “noted.”

OCGA § 17-16-4 (a) (3) (A) generally provides that the

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prosecuting attorney must permit the defendant to inspect and copy

those materials that the prosecutor intends to use at trial and that

“are within the possession, custody, or control of the state or

prosecution,” and must do so no later than ten days before trial or

as otherwise ordered by the court. OCGA § 17-16-6 provides that if

the 10-day deadline is not met, the trial court can elect various

remedies short of exclusion, including granting a continuance. “The

State may be prohibited from introducing evidence that was not

timely disclosed only upon a showing of both prejudice to the

defendant and bad faith by the State.” Carson v. State, 308 Ga. 761,

768 (5) (843 SE2d 421) (2020) (citation and punctuation omitted).

We review for clear error the trial court’s factual findings as to bad

faith and prejudice. See State v. Bryant, 307 Ga. 850, 853 (1) (838

SE2d 855) (2020).

Harris complains that the State’s “interference” with his

attempts to access evidence from the prior trial “put [him] at a

disadvantage in [his] preparation in this trial.” But the trial court

specifically found that the State did not encourage the clerk to

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disobey the court’s order that Harris be provided access to the

relevant material, and he cannot show that the trial court’s finding

of a lack of bad faith in this respect was clearly erroneous. Moreover,

the trial court invited Harris to move for a continuance based on his

objections, but he declined to do so, saying instead that the trial

could “forge ahead.” He therefore has waived any objection to

admission of the other-acts evidence based on any violation of the

reciprocal discovery statute. See Valentine v. State, 293 Ga. 533, 536

(2) (748 SE2d 437) (2013) (“By failing to ask for more time to prepare

for the testimony of the expert witness, [the appellant] waived any

claim of error with respect to the failure of the trial court to give his

lawyer more time.”).

Judgment affirmed. All the Justices concur.

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