NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.
In the Supreme Court of Georgia
Decided: March 5, 2024
S23A1201. SINKFIELD v. THE STATE.
BOGGS, Chief Justice.
Appellant Remond Sinkfield challenges his convictions for
felony murder and other crimes in connection with the death of Levi
Atkinson, who either was pushed or jumped out of a moving vehicle
after an altercation with Appellant, was struck by another car, and
died from his injuries five days later. Appellant contends that the
evidence was insufficient to support his convictions for felony
murder and theft by taking; that the trial court erred in denying his
motion to suppress a pretrial interview by police; that the trial court
committed plain error in several ways; and that the trial court
abused its discretion in various evidentiary rulings. He also
contends that he was denied effective assistance of counsel due to
his trial counsel’s deficiencies, including by failing to retain a
medical expert to testify as to the cause of Atkinson’s death. For the
reasons that follow, we affirm.1
1. The evidence presented at trial showed the following. 2
Appellant and Atkinson were acquaintances, and Appellant
supplied Atkinson with drugs and prostitutes. Atkinson owned a
business and was generous with his money, occasionally paying
bills, such as for rent and cell phone service, for Appellant and
1 The crimes occurred on January 24, 2012. It appears that Appellant
was first indicted in 2012, but the record does not contain that indictment. On
October 14, 2014, a Fulton County grand jury re-indicted Appellant for felony
murder, involuntary manslaughter, aggravated assault with intent to rob,
theft by taking (auto), and giving false information to a law enforcement
officer. At a trial from October 20-24, 2014, the jury acquitted Appellant of
involuntary manslaughter and convicted him on all other counts. The trial
court sentenced Appellant to life in prison with the possibility of parole for
felony murder, a ten-year consecutive sentence for theft by taking, and a
twelve-month consecutive sentence for giving false information. The
aggravated assault count merged into the felony murder conviction. Appellant
filed a premature motion for new trial, and that motion ripened upon the entry
of the final judgment on October 28, 2014. See Southall v. State, 300 Ga. 462,
464-468 (796 SE2d 261) (2017). Appellant amended the motion for new trial
with new counsel on June 15, 2021, and February 6, 2023. After an evidentiary
hearing on February 22, 2023, the trial court entered an order denying the
motion on April 28, 2023. Appellant filed a timely notice of appeal, and the case
was docketed in this Court to the August 2023 term and submitted for a
decision on the briefs.
2 Because this case involves questions of harmless error and prejudice
stemming from ineffectiveness of counsel, we set out the evidence in detail
rather than in the light most favorable to the jury’s verdict. See Wood v. State,
316 Ga. 811, 812 n.2 (890 SE2d 716) (2023).
2
others, and also sometimes lent his car to Appellant and others. Late
in the evening on January 23, 2012, Atkinson was at his home in
Douglas County celebrating his birthday with Deshanqueanna
Lundy, who was Appellant’s girlfriend. Early the next morning, on
January 24, Appellant was driven to Atkinson’s home by Cleo
Simmons; Lisa Johnson was with them. Appellant delivered crack
and powder cocaine to Atkinson, and the four consumed the drugs.
Later that morning, Atkinson gave Appellant his ATM card so
Appellant could withdraw money to pay for the drugs Appellant had
delivered. Appellant and Simmons left the home, drove to an ATM
machine, and used Atkinson’s ATM card to withdraw $300, which
was the daily limit for Atkinson’s ATM card; Appellant also bought
additional drugs. After Appellant and Simmons returned, the group
continued to use drugs.
In the early afternoon, Appellant and Lundy borrowed
Atkinson’s car and left. After dropping off Lundy, Appellant saw a
police officer who knew him and knew that he did not have a valid
driver’s license. To avoid being arrested for driving with a suspended
3
license, Appellant turned into a Travelodge motel in Fulton County
near the intersection of Fulton Industrial Boulevard and I-20, where
he sometimes stayed. Appellant parked Atkinson’s car and left.
In the early evening, Atkinson received a call from his friend
Charlene Shivers. Shivers told Atkinson that she had seen his car
at the Travelodge. Atkinson asked Shivers for a ride so he could pick
up his car. When Atkinson and Shivers arrived at the Travelodge,
the police were preparing to impound the car, but Atkinson was able
to retrieve it and drive it home. By the time Atkinson arrived back
home, Johnson and Simmons were gone.
Later that evening, Simmons drove Appellant back to
Atkinson’s home. Appellant demanded payment for Lundy’s time
and for the crack cocaine he had delivered earlier in the day;
however, Atkinson did not have any cash. Atkinson, Appellant, and
Simmons drove away in Atkinson’s car. During the drive, Atkinson
tried to obtain cash by calling Shivers and his two daughters, who
lived in Atlanta. He and Appellant also went to Shivers’s room at
the Skyway Inn, a motel near the intersection of Fulton Industrial
4
Boulevard and I-20. Atkinson was unable to obtain any cash, and
after leaving Shivers’s room, Appellant and Atkinson returned to
the car, and they picked up Johnson, who had been at the Skyway.
Shortly thereafter, Atkinson either jumped or was pushed from the
car while it was in the middle of an intersection, and he was hit by
at least one other car.
Atkinson was seriously injured, but he spoke with several
people at the scene before being transported to the hospital; he died
five days later. Maria Gallo, who was in another car in the
intersection, testified she saw Atkinson in the middle of Fulton
Industrial Boulevard, screaming that he had been kidnapped by
men who wanted to kill him. He came over to her car and tried to
open the door. She saw two men get out of another car that was
stopped in the intersection, walk over to Atkinson, scream at him in
an “ugly” way, and aggressively try to take him away. Atkinson
continued to scream for help, saying that the men were trying to kill
him, and telling the men to leave. When police officers arrived, the
two men returned to their car and drove away quickly.
5
Corporal David Jira of the Fulton County Police Department
was the first officer on the scene. Atkinson told him that he had been
kidnapped at gunpoint from his home in Douglas County and that
when he got to the intersection of Fulton Industrial and I-20, he was
pushed from the car. Atkinson told a paramedic at the scene that he
jumped out of a car because someone tried to kill him; the paramedic
testified at trial that Atkinson smelled of alcohol. About an hour
later, Cpl. Jira discovered Atkinson’s car parked by a gas pump at a
gas station about a mile from the intersection where Atkinson had
been injured. Cpl. Jira was familiar with Appellant and knew that
he had been identified as a suspect. He saw Appellant inside the gas
station, and when Appellant came out to Atkinson’s car, Cpl. Jira
detained him and asked his name; Appellant answered by giving his
brother’s name. After being told why he was being detained,
Appellant stated that what was alleged was not true; that he did not
push Atkinson from the car; and that Atkinson owed his girlfriend
approximately $700. When Cpl. Jira confirmed that Appellant had
given him the wrong name, he arrested him. No drugs or weapons
6
were found in the car or on Appellant’s person at the time of his
arrest.
At trial, the State presented evidence showing that the cause
of Atkinson’s death five days after his admission to the hospital was
blood clots, which were a consequence of injuries he received when
he fell out of a moving vehicle; the evidence included the medical
examiner’s testimony, his hospital medical records, and the autopsy
report. Specifically, the medical examiner, who performed the
autopsy, testified that the cause of death was right pulmonary and
bilateral bone thromboembli, or blood clots, due to pelvic, rib, and
vertebral fractures. She explained that blood clots were not
uncommon when a person has a fracture of the thigh or arm or a
pelvic fracture; she also noted that blood clots can take time to
develop. She classified the manner of death as a homicide.
Additionally, the medical records showed that on the morning of
Atkinson’s death, he had developed an altered mental status, which
the medical examiner testified can be caused by blood clots. The
medical examiner acknowledged that Atkinson did not have rib
7
fractures upon his admission to the hospital, and she opined that he
may have sustained the rib fractures as a result of having to be
restrained due to his altered mental status or as a result of
resuscitation efforts. She also opined that the large blood clot that
was visible when she did the autopsy would not have come from the
rib fracture because he did not have the rib fracture when he was
admitted to the hospital. On cross-examination, she acknowledged
that the autopsy did not reveal any injury to Atkinson’s neck.
The State called Johnson and Shivers as witnesses. Johnson’s
pretrial interview with Lieutenant John Cross of the Fulton County
Police Department was audio- and video-recorded and played for the
jury. In that interview, she explained that she was in the car with
Atkinson, Appellant, and Simmons late on the evening of January
24, 2012. Atkinson was driving, Appellant was in the passenger
seat, and Simmons was sitting behind Appellant. Appellant and
Atkinson were having a heated argument about money that
Appellant said Atkinson owed him. Atkinson was talking on the
phone with Shivers and others, trying to get money. Atkinson said
8
he would drive back to the Skyway, but Appellant said he did not
want to go that way. Atkinson did not appear to be afraid and told
Appellant that he would get money in the morning. When Atkinson
started to get into a turn lane to turn back toward the Skyway,
Appellant got angry and grabbed the steering wheel, forcing the car
to go in a different direction. At the next intersection, Atkinson
slowed the car, opened the door, and rolled out. The car continued
moving until it hit a barrier, and Appellant got in the driver’s seat
and drove onto I-20. While Atkinson was standing in the
intersection, saying “help me, help me,” Johnson walked back to the
Skyway. Johnson never saw anyone with a gun in the car, although
she had seen Appellant with guns in the past.
At trial, Johnson’s testimony about what happened on January
24 was largely consistent with her pretrial statement. However, she
testified that Appellant and Atkinson were not having a discussion
but were both on their phones and that Atkinson was trying to get
money so that he could pay her because she was planning to spend
the night with him, and he did not want her to have to wait for her
9
money until the morning. She also testified that Appellant told
Atkinson, “You driving crazy, you drunk”; that Appellant asked to
be dropped off; that when Appellant grabbed the steering wheel, he
told Atkinson, “You finna kill us turning into oncoming traffic”; and
that after Atkinson rolled out of the car, Appellant put the car in
park, got out of the car, and she “suppose[d]” he talked to Atkinson.
She testified that she did not see what happened to Atkinson’s car.
According to Shivers’s trial testimony, Atkinson called her
while he was in the car with Appellant, asked for money, and said
Appellant “was down there with a gun demanding money.” Even
though Shivers told Atkinson she did not have money, he came to
her door at the Skyway; Appellant stood behind him and had his
hands in his jacket. When Shivers said she did not have any money,
Appellant and Atkinson left. About ten minutes later, Atkinson
called her again, but he was interrupted by Appellant “hollering” at
him to “go straight.” Then the call dropped. Shortly thereafter,
Shivers saw Johnson, who told her that Atkinson had been hit by a
car; that Simmons had been choking Atkinson; and that Appellant
10
had been hitting him. 3 Shivers ran to the scene and saw Atkinson
being loaded into an ambulance; he told her that Appellant tried to
kill him.
The State also called Atkinson’s daughter Felicia, and she
testified that her father called her the night of January 24, asking
for money, which was very unusual. She also had a conversation
with him while he was in the hospital. During that conversation, he
said that Appellant, Johnson, and Simmons came to his home
uninvited. Appellant brought drugs that they all shared and then
demanded he pay for everything when they finished. When he said
he would not pay, someone slapped a beer bottle out of his hand,
pulled a gun on him, and made him get in his car to go get money.
The people with him were choking him, poking him with a gun, and
saying they would take him to a hotel off Fulton Industrial
Boulevard to kill him. Felicia testified that she went to her father’s
home after visiting him in the hospital and saw an opened bottle of
3 On cross-examination, Shivers admitted that she had not told officers
in her pretrial statements that Johnson said Atkinson had been choked.
11
beer on the living room floor.
Appellant was interviewed on February 6 by Lt. Cross; that
interview was audio-recorded, and a portion was played for the jury.
In that interview, Appellant said that Atkinson owed him money for
drugs and for prostitutes. He admitted that during the drive on
January 24, he was yelling at Atkinson about the money; he was
planning to take Atkinson to an apartment where Atkinson had
never been and hold him there until after midnight when Atkinson
could withdraw money from an ATM; he was “dead serious” about
not going back to the Skyway; and he grabbed the steering wheel
right before Atkinson jumped out of the car.
Appellant testified in his own defense as follows. He lived at
the Travelodge and dealt drugs for a living. On January 24, 2012,
Simmons drove him to Atkinson’s home to deliver drugs that Lundy
had requested. He, Atkinson, Simmons, and Lundy shared the
drugs. At the time, Atkinson owed Appellant $300 for Lundy’s
company and $400 for the drugs. Atkinson wanted more crack after
finishing the drugs Appellant brought, so he sent Appellant and
12
Simmons in his car with his ATM card to get cash. Appellant
retrieved $300 — the daily limit — and purchased the crack and
returned to Atkinson’s home. At about 1:00 p.m., Appellant and
Lundy left the home, borrowing Atkinson’s car with his permission.
Shortly thereafter, Atkinson called Appellant and asked him to pick
up more drugs. Appellant went to a hotel near the Skyway to pick
up the crack, but a police officer who knew he was driving on a
suspended license saw him. Appellant went upstairs to wait for the
police to leave but left the car running with his cell phone in the car.
The police called a tow truck to impound the car, but Shivers and
Atkinson arrived in time to take the car. Appellant believed that
Atkinson told the police that he stole the car.
Later, Appellant returned to Atkinson’s home with more crack.
Atkinson and Appellant argued about Atkinson telling the police
Appellant had stolen his car, and Appellant knocked a beer bottle
out of Atkinson’s hand while Atkinson was sitting in a chair.
Appellant told Atkinson the crack he just picked up had to be paid
for. Atkinson and Appellant left in Atkinson’s car to get the money;
13
Atkinson was driving, Appellant was in the front passenger seat,
and Simmons was in the back seat. Their first stop was the Skyway
to ask Shivers for money. After that visit was unsuccessful, they saw
Johnson across the street and picked her up. Johnson suggested
they go to the truck stop to ask someone they knew there for money.
They drove to the truck stop, but police officers were there, so they
did not stop and headed back toward the Skyway. Police were also
present at a store near the Skyway. Appellant had become irritated
and saw Atkinson was about to turn toward the Skyway into
oncoming traffic, so Appellant grabbed the steering wheel. The car
continued forward while Atkinson argued with everybody in the car
and someone on the phone about how he “bent over backwards” for
them, but nobody would help him. Atkinson jumped from the car at
the next light, and a car hit him while he stood in the street.
Appellant placed the car in park and got out. Another car then
struck Atkinson, and Atkinson leaned up against that car. Appellant
unsuccessfully attempted to get Atkinson back in the car and noticed
a man calling the police. He decided to leave in Atkinson’s car
14
because he had outstanding warrants and because of the drugs in
the car. He told Atkinson he was leaving and that because of the
drugs and cup of liquor in the car, “the police was going to come” and
that Atkinson “was going to go to jail.” He told Simmons to tell
Johnson to stay and tell the police what happened. He drove away
and hid the drugs at a gas station, and then he drove to another gas
station near the scene of the incident.
During the cross-examination of Appellant, the State
questioned him about seven of his prior convictions — two for theft
by taking a motor vehicle, four for providing false information to law
enforcement, and one for possession of a firearm by a convicted felon.
2. Appellant raises several contentions in challenging the
constitutional sufficiency of the evidence for his convictions for
felony murder and for theft by taking. 4 In reviewing a challenge to
4 Because we no longer automatically review sua sponte the sufficiency
of the evidence, except that of murder convictions resulting in the death
penalty, see Davenport v. State, 309 Ga. 385, 398-399 (846 SE2d 83) (2020),
we limit our consideration to the specific arguments that Appellant makes in
challenging the sufficiency of the evidence. See Scoggins v. State, 317 Ga. 832,
837 n.6 (896 SE2d 476) (2023).
15
the constitutional sufficiency of the evidence, we review the evidence
in the light most favorable to the verdict. See Jackson v. Virginia,
443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). Our review
“leaves to the jury the resolution of conflicts in the evidence, the
weight of the evidence, the credibility of witnesses, and reasonable
inferences to be made from basic facts to ultimate facts.” Wilkerson
v. State, 317 Ga. 242, 245 (892 SE2d 737) (2023) (cleaned up).
(a) Appellant first argues that there was insufficient evidence
that Atkinson’s death was caused by the injuries he received after
he fell out of the car and that the State failed to prove that the
underlying felony of aggravated assault with intent to rob had a
sufficient nexus to Atkinson’s death. These arguments implicate two
elements of felony murder — proximate cause and that the victim’s
death must be caused “in the commission of” the predicate felony.
See OCGA § 16-5-1 (c); Eubanks v. State, 317 Ga. 563, 569, 571-572
(894 SE2d 27) (2023). “Proximate cause is satisfied for purposes of
felony murder when the death was a reasonably foreseeable result
of the criminal conduct at issue,” and the proximate cause element
16
“is met even if the death had an intervening act, so long as that
intervening act was itself a reasonably foreseeable consequence of
the criminal conduct.” Id. at 571 (cleaned up). The “in the
commission of” element requires that “the predicate felony must be
at least concurrent with the homicide in part, and be a part of it in
an actual or material sense.” Id. at 572 (cleaned up).
With regard to proximate cause, Appellant points to evidence
that while hospitalized, Atkinson developed an altered mental
status, had to be restrained, and fought against the restraints.
Appellant argues that Atkinson’s rib fractures were likely a result
of these complications and that the blood clots that caused
Atkinson’s death could have resulted from the rib fractures. He
argues that such complications are reasonably foreseeable in a
hospital setting and could have been the proximate cause of
Atkinson’s death.
These arguments, however, rely on a view of the evidence that
is most favorable to the defense, rather than to the verdict, which is
the proper standard. See Jackson, 443 U.S. at 319. Moreover, the
17
medical records and the testimony of the medical examiner, viewed
in the light most favorable to the verdicts, were sufficient for a
rational trier of fact to find beyond a reasonable doubt that the cause
of death was blood clots resulting from the injuries Atkinson
sustained on January 24. See, e.g., Harris v. State, 313 Ga. 653, 656-
657 (872 SE2d 732) (2022) (evidence sufficient to establish nexus
between defendant’s shooting of victim and victim’s death from
blood clots resulting from being shot); Treadaway v. State, 308 Ga.
882, 884-885 (843 SE2d 784) (2020) (holding that evidence was
sufficient and “whether [defendant’s] actions were the sole cause of
[her husband’s] death or would have otherwise caused his death
under different circumstances is immaterial,” where evidence
showed defendant beat her highly intoxicated, disabled husband
with a metal broom while he was in the bathtub and cause of death
was drowning and blunt-force trauma (cleaned up)). See also
Eberhart v. State, 307 Ga. 254, 260-262 (835 SE2d 192) (2019)
(evidence sufficient to uphold felony murder conviction based on
aggravated assault where medical examiner testified that the victim
18
died from hypertensive cardiovascular disease exacerbated by
physical exertion and TASER application).
With regard to the “in the commission of” element, Appellant
argues that Atkinson voluntarily exited the car; that there was no
physical evidence that Atkinson had been choked; and that Johnson
said that she did not see a gun. Again, these arguments rely on a
view of the evidence that is most favorable to the defense. The
evidence, viewed in the light most favorable to the verdict, was
sufficient to authorize a rational jury to find beyond a reasonable
doubt that just before Atkinson exited the car, Appellant was
threatening Atkinson with bodily harm if he did not pay the money
owed; and that Appellant either pushed Atkinson out of the car, or
Atkinson, in reasonable fear for his life, jumped out of the car. This
evidence was sufficient to support Appellant’s conviction for felony
murder while in the commission of aggravated assault with intent
to rob. See, e.g., Adcock v. State, 279 Ga. App. 473, 473-474 (631
SE2d 494) (2006) (evidence was sufficient to support conviction for
aggravated assault with intent to rob where victim testified that
19
defendant jumped in car, demanded money, and threatened him
with knife, and where defendant testified that he entered car
because victim owed him money but that he did not threaten victim).
See also Wayne R. LaFave et al., Substantive Criminal Law § 6.4 (h)
(October 2023 online update) (“[i]mpulsive acts of the victim in an
effort to escape being harmed by the defendant’s conduct” are
sufficient to establish causation between defendant’s commission of
felony and victim’s death).
(b) Appellant also contends that there was insufficient evidence
that he harbored an intent to deprive Atkinson of his car, a required
element of his conviction for theft by taking of Atkinson’s car. See
OCGA § 16-8-2. Appellant points to testimony that Atkinson would
often help his friends financially and would lend them his car, as
well as own testimony that he had no intent to deprive Atkinson of
his car. However, Appellant again fails to view the evidence in the
light most favorable to the verdict. The evidence, viewed in the
proper light, authorized the jury to find that Appellant, either by
force or intimidation, caused Atkinson to exit the car; drove
20
Atkinson’s car away while Atkinson was screaming for help; and lied
about his identity when found in possession of the car. This evidence
was sufficient to permit the jury to infer that Appellant intended to
deprive Atkinson of his car, either permanently or temporarily. See
OCGA § 16-8-1 (1) (a) (defining “deprive” as withholding, without
justification, “property of another permanently or temporarily”).
Moreover, the jury was not required to credit Appellant’s
testimony as to his intent to help Atkinson by taking the car away
because it had drugs in it. In fact, if the jury disbelieved Appellant’s
testimony, such testimony could serve as substantive evidence that
his intent was to deprive Atkinson of his property. See Maynor v.
State, 317 Ga. 492, 498 (893 SE2d 724) (2023) (jurors are “authorized
to consider their disbelief in Appellant’s testimony . . . as substantive
evidence of his guilt”). Under the proper standard of review set forth
above, we conclude that the evidence at trial was sufficient to
authorize a rational trier of fact to find that Appellant committed
theft by taking. See, e.g., Jones v. State, 303 Ga. 496, 497-499 (813
SE2d 360) (2018) (evidence sufficient to support theft by taking
21
conviction where, after shooting his cousin, defendant drove away
from scene in his cousin’s girlfriend’s car, without her permission,
and was still in possession of car when apprehended by police); Shaw
v. State, 247 Ga. App. 867, 871-872 (545 SE2d 399) (2001) (evidence
sufficient to support intent element of conviction for theft by taking
where there was evidence suggesting that the victim may have given
the defendant her car keys, but there were also circumstances,
including defendant’s demeanor toward victim and when confronted
by officers, that permitted jury to infer defendant’s criminal intent
to deprive victim of her property).
3. Appellant contends the trial court erred in failing to grant
a new trial as a “thirteenth juror” under OCGA §§ 5-5-20 and 5-5-
21. OCGA §§ 5-5-20 and 5-5-21, respectively, allow the trial court to
grant a new trial “[i]n any case when the verdict of a jury is found
contrary to evidence and the principles of justice and equity,” or
when “the verdict may be decidedly and strongly against the weight
of the evidence even though there may appear to be some slight
evidence in favor of the finding.” “Grounds for a new trial under
22
these Code sections are commonly known as the ‘general grounds,’”
and these statutes “give the trial court broad discretion to sit as a
thirteenth juror and weigh the evidence on a motion for new trial
alleging these general grounds.” Allen v. State, 315 Ga. 524, 531 n.5
(883 SE2d 746) (2023) (cleaned up).
Appellant’s claim is not subject to our review because the
decision to grant or deny a new trial under these statutes is vested
solely within the discretion of the trial court and is not subject to
review on appeal. See Ridley v. State, 315 Ga. 452, 456 (883 SE2d
357) (2023).5 To the extent that Appellant contends that the trial
court failed to exercise its discretion as a “thirteenth juror” by his
argument that the trial court failed “to address the specific issues
raised in the amended motion for new trial,” the record clearly
demonstrates otherwise. The trial court’s order on the motion for
new trial stated that it “has reviewed the evidence of record,
5 See also King v. State, 316 Ga. 611, 616 n.8 (889 SE2d 851) (2023)
(noting many Justices’ skepticism about prior case law that imported an
analysis of the constitutional sufficiency of the evidence into the consideration
of a “thirteenth juror” claim).
23
including re-examining such factors as the weight of the evidence
and credibility of the witnesses . . . as an independent fact finder.”6
Thus, the trial court plainly applied the proper standard under
OCGA §§ 5-5-20 and 5-5-21, and this claim fails.
4. Appellant challenges the admission of his post-arrest
interview by police on the sole ground that he was not advised of his
rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16
LE2d 694) (1966). “To use a defendant’s custodial statements in its
case-in-chief, the State must show that the defendant was advised
of his Miranda rights and that he voluntarily, knowingly, and
intelligently waived them.” Huffman v. State, 311 Ga. 891, 893 (860
SE2d 721) (2021) (cleaned up). A written waiver of rights is not
necessary; a suspect advised of his rights orally can waive them. See
id. at 895. In ruling upon the admissibility of a custodial statement,
a trial court must consider the totality of the circumstances. See id.
at 893. We review a trial court’s factual findings and credibility
6 The trial court’s order stated that Appellant’s second amended motion
for new trial raised “in a scattershot manner” “hosts of evidentiary complaints”;
the trial court overruled the claims “en bloc.”
24
determinations for clear error and apply the law de novo. White v.
State, 307 Ga. 601, 602 (837 SE2d 838) (2020).
On February 6, 2012, Lt. Cross spoke to Appellant at the
Fulton County Jail and notified him that he was being charged with
murder in connection with Atkinson’s death. At trial, Lt. Cross
testified outside the presence of the jury that he explained to
Appellant that he did not have to speak with him and held up a
waiver-of-rights form so Appellant could see it. There was no pen for
Appellant to sign the form, but Appellant said, “I understand” and
that he wanted to speak with Lt. Cross. Additionally, Appellant
testified at trial that when Lt. Cross spoke with him, he understood
his Miranda rights and spoke with the officer willingly. Under these
circumstances, we conclude that this claim fails.
5. Appellant also contends the trial court committed plain
error in several ways. 7 To show plain error, Appellant must identify
7 We review assertions of plain error related to the admission or
exclusion of evidence under OCGA § 24-1-103 (a), (d), which together provide
that “[e]rror shall not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected,” and that “[n]othing
25
an error that was not affirmatively waived; that was clear and
obvious beyond reasonable dispute; that affected his substantial
rights, which generally requires an “affirmative showing” that the
error probably did affect the outcome below; and that the error
seriously affected the fairness, integrity, or public reputation of
judicial proceedings. See Ruthenberg v. State, 317 Ga. 227, 230-231
(892 SE2d 728) (2023). “Satisfying all four prongs of this standard is
difficult, as it should be.” Id. at 231 (cleaned up).
(a) First, Appellant challenges the admission of certain
evidence during the testimony of Gallo, who testified with the
assistance of an interpreter, as hearsay, see OCGA § 24-8-802, and
as a violation of his right of confrontation under the Sixth
Amendment to the United States Constitution. Toward the
conclusion of Gallo’s direct examination, she commented that her
sister-in-law, who was in the car with her, was translating
Atkinson’s statements from English into Spanish. Appellant’s trial
in this Code section shall preclude a court from taking notice of plain errors
affecting substantial rights although such errors were not brought to the
attention of the court.”
26
counsel objected, arguing that Gallo’s testimony about Atkinson’s
statements was hearsay, because she was relying on her sister-in-
law’s translation. The trial court asked the State for a response, and
following a bench conference, the State asked Gallo about her ability
to understand English. Gallo testified that she understands some
English; that she had an independent understanding of what
Atkinson was saying; and that she understood that Atkinson was
screaming, “They’re trying to kill me.” She also testified that her
sister-in-law was translating because someone else in the car with
them did not understand any English. Following this testimony,
Appellant did not ask for a ruling on his objection and did not renew
it.
Appellant contends that Gallo’s reliance on her sister-in-law as
an interpreter constituted hearsay. Pretermitting whether
Appellant affirmatively waived this objection, we conclude that the
trial court did not err, much less make a clear or obvious error in
admitting Gallo’s testimony, given the particular hearsay objection
made below and given Gallo’s clarification that her testimony was
27
based on her independent understanding of Atkinson’s statement
that “they’re trying to kill me.” Thus, Appellant has failed to show
plain error.
Appellant also asserts, in a single sentence, that the admission
of the testimony of Gallo’s sister-in-law violated his right of
confrontation under the Sixth Amendment to the United States
Constitution. See Crawford v. Washington, 541 U. S. 36 (124 SCt
1354, 158 LE2d 177) (2004). A confrontation clause violation under
Crawford occurs when the out-of-court statement is “testimonial.”
Id. See also Munn v. State, 313 Ga. 716, 724 (873 SE2d 166) (2022)
(statement is “testimonial” where “its primary purpose is to
establish evidence that could be used in a future prosecution”
(cleaned up)). Here, however, Gallo’s sister-in-law’s translation of
Atkinson’s cries to bystanders for help is not testimonial. See
Bulloch v. State, 293 Ga. 179, 182-183 & n.3, 186 (744 SE2d 763)
(2013) (rejecting argument that victim’s statement to brother
identifying defendant as person who should be suspected if
“anything out of the ordinary happens” victim was testimonial
28
within meaning of Crawford). Therefore, this claim of plain error
fails.
(b) Second, Appellant contends that the trial court plainly
erred in allowing the prosecutor to use leading questions in
examining Gallo and to repeat questions to several witnesses that
had been asked and answered. However, Appellant has not set forth
any of the allegedly improper questions or answers, instead, simply
including string cites to pages of the trial transcript. With respect to
the allegedly leading questions, our review of the record shows that
they easily could have been rephrased in an unobjectionable way to
elicit the same testimony. With respect to the questions that
allegedly had previously been asked and answered, we conclude that
the answers given were cumulative of testimony that Appellant has
not challenged on appeal. Moreover, Appellant has failed to explain
how any of the alleged errors were of a nature to have “seriously
affected the fairness, integrity, or public reputation of judicial
proceedings.” Ruthenberg, 317 Ga. at 230. Thus, Appellant has
failed to meet his burden of showing that the allegedly improper
29
questions likely affected the outcome of the trial. See McCalop v.
State, 316 Ga. 363, 375 (887 SE2d 292) (2023) (plain error claim fails
when appellant cannot establish that allegedly improper testimony
likely affected outcome of trial); United States v. Coleman, 914 F3d
508, 512 (7th Cir. 2019) (“even when they are improper, leading
questions rarely give rise to plain error”). See also Davis v. State,
306 Ga. 140, 149 (829 SE2d 321) (2019) (holding that appellant
failed to establish prejudice stemming from counsel’s failure to
object to leading questions because an objection was unlikely to have
prevented the admission of the testimony); Grier v. State, 313 Ga.
236, 246 (869 SE2d 423) (2022) (equating the prejudice prong of the
plain-error test with the prejudice prong for an ineffective-
assistance claim).
(c) Third, Appellant contends that the trial court committed
plain error in allowing the prosecutor to repeat Appellant’s
testimony in cross-examining Appellant. However, there is no error,
much less a clear and obvious one, in a party exercising its right to
“a thorough and sifting cross-examination,” OCGA § 24-6-611 (b),
30
and using leading questions to reiterate the witness’s testimony on
direct in doing so. See OCGA § 24-6-611 (c) (leading questions “shall
be permitted on cross-examination”).
(d) Fourth, Appellant contends that the trial court plainly
erred by admitting facts underlying Appellant’s prior convictions.
Outside the presence of the jury, the parties discussed the State’s
ability to impeach Appellant with proof of his prior convictions.
When the trial court ruled that seven of Appellant’s prior convictions
— including four for giving false information to law enforcement —
would be admissible, it also advised the parties that the State would
not be permitted to go into the details of the convictions. On cross-
examination, Appellant admitted he had been convicted of the prior
offenses, and the State introduced, without objection, exhibits
supporting each conviction.8 The prosecutor also asked Appellant a
few questions about why he lied to law enforcement, whether he had
8 These exhibits included two indictments that contained counts for
which Appellant was not convicted. In this appeal, Appellant does not cite the
exhibits or make any argument related to their admission, and thus any issue
regarding them is not properly before us.
31
experience trying to avoid arrest by giving a false name to officers,
and referred to Appellant’s testimony on direct examination
admitting that he gave Cpl. Jira his brother’s name when he was
arrested.
OCGA § 24-6-609 (a) (1) (“Rule 609”) states that “evidence that
an accused has been convicted of [a felony] shall be admitted if the
court determines that the probative value of admitting the evidence
outweighs its prejudicial effect to the accused.” Rule 609 (a) (1) is
identical in all relevant respects to the corresponding federal rule,
and in such circumstances, we look for guidance to federal case law,
especially case law from the United States Supreme Court and
federal appellate courts, including particularly the Eleventh Circuit
Court of Appeals. See Almanza v. State, 304 Ga. 553, 556-558 (820
SE2d 1) (2018) (when Georgia courts consider the meaning of the
current Evidence Code, they should be guided by federal case law,
particularly the decisions of the Eleventh Circuit, prior to its
adoption, until a Georgia appellate court decides the issue under the
new Code). Under Federal Rule of Evidence 609 (a), while the fact of
32
the conviction, the nature of the conviction, and the punishment are
all properly admitted, the specific facts and circumstances of the
prior convictions generally are not admissible. See United States v.
Morrow, 537 F2d 120, 141 n.31 (5th Cir. 1976);9 United States v.
Lopez-Medina, 596 F3d 716, 738 (10th Cir. 2010). 10
Pretermitting whether the prosecutor’s few additional
questions about the false-information convictions were improper,
Appellant has not made an affirmative showing that any such error
probably affected the outcome below, as required to prevail on his
plain error claim. See Ruthenberg, 317 Ga. at 230-231. There was
overwhelming evidence, including Appellant’s own testimony, that
Atkinson exited the car because he reasonably feared for his life, as
well as substantial medical testimony that the injuries Atkinson
9 Decisions of the former Fifth Circuit rendered before the close of
business on September 30, 1981, are binding in the Eleventh Circuit. See
Bonner v. City of Prichard, 661 F2d 1206, 1209 (11th Cir. 1981) (en banc).
10 Appellant cited only cases decided under our former Code, and we have
found none addressing the specific issue under our current Code. Therefore, we
rely on federal case law. See Brown v. State, 307 Ga. 24, 30 n.2 (834 SE2d 40)
(2019) (looking to federal case law to address harmless error in relation to
argument about the use of a conviction to impeach a witness other than the
accused).
33
sustained on January 24 were the proximate cause of his death.
Additionally, Appellant admitted in his trial testimony that after
being found in possession of Atkinson’s car, he provided a false name
to Cpl. Jira, and the State’s closing argument made only a brief
reference to Appellant’s prior convictions. See id. at 231 (holding
that any error in admitting evidence of prior convictions did not
constitute plain error where appellant failed to make affirmative
showing that admission likely affected outcome of trial).
(e) Finally, Appellant argues plain error based on his appellate
counsel’s inability to obtain transcripts for four pretrial hearings
that occurred under his first indictment, which was later
superseded, and on the trial court’s limiting his time for questioning
his trial counsel at the hearing on the motion for new trial. However,
these alleged errors are not subject to plain-error review. See Keller
v. State, 308 Ga. 492, 497 (842 SE2d 22) (2020) (listing limited
categories of alleged errors for which plain-error review is available).
For all these reasons, Appellant’s claims of plain error fail.
6. Next, we address Appellant’s contention that the trial
34
court abused its discretion in overruling several evidentiary
objections. We review a trial court’s rulings admitting or excluding
evidence for an abuse of discretion. See Anglin v. State, 302 Ga. 333,
335 (806 SE2d 573) (2017). We will reverse a conviction for a trial
court’s evidentiary error only if it was harmful. See id. at 336; 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.”). The test for determining nonconstitutional harmless
error is whether “it is highly probable that the error did not
contribute to the verdicts,” and in conducting that analysis, “we
review the record de novo and weigh the evidence as we would expect
reasonable jurors to have done.” Brock v. State, 316 Ga. 256, 260
(886 SE2d 786) (2023) (cleaned up).
(a) Appellant contends that the trial court erred in overruling
several objections during Lt. Cross’s testimony. First, he contends
that the trial court abused its discretion in overruling his hearsay
objection when Lt. Cross testified that Johnson said during her
pretrial interview that Appellant and Atkinson were having a
35
heated argument in the car. However, OCGA § 24-8-801 (d) (1) (A)
provides, in part, “[a]n out-of-court statement shall not be hearsay
if the declarant testifies at the trial or hearing, is subject to cross-
examination concerning the statement, and the statement is
admissible as a prior inconsistent statement . . . under Code Section
24-6-613 or is otherwise admissible under this chapter.” OCGA § 24-
6-613 (b) provides, in relevant part, that “extrinsic evidence of a
prior inconsistent statement by a witness shall not be admissible
unless the witness is first afforded an opportunity to explain or deny
the prior inconsistent statement and the opposite party is afforded
an opportunity to interrogate the witness on the prior inconsistent
statement or the interests of justice otherwise require.” Here, the
recording of Johnson’s pretrial interview was played for the jury,
and Appellant cross-examined her about alleged inconsistencies
between her pretrial statement and her trial testimony. Thus, Lt.
Cross’s testimony about Johnson’s statement was not inadmissible
hearsay. See Neloms v. State, 313 Ga. 781, 788-789 (873 SE2d 125)
(2022) (investigator’s testimony about witness’s prior statements
36
was admissible as prior inconsistent statements where witness was
present at trial, was asked about statements to investigator, and
was subject to cross-examination).
Second, Appellant contends that the trial court abused its
discretion in overruling his objection to the prosecutor asking Lt.
Cross whether Appellant’s pretrial statement was consistent with
facts uncovered by the investigation, to which Lt. Cross responded,
“There were some discrepancies.” On appeal, Appellant argues that
a witness may not give opinion testimony on the “ultimate issue,”
citing case law decided under the former Evidence Code. However,
at trial Appellant provided no basis for his objection, stating merely
“objection.” See OCGA § 24-1-103 (a) (1). We pretermit whether the
trial court abused its discretion in overruling Appellant’s objection.
Compare OCGA § 24-7-701 (a) (1)-(2) (authorizing the admission of
witness testimony in the form of a lay opinion where it is
“[r]ationally based on the perception of the witness [and] [h]elpful to
a clear understanding of the witness’s testimony or the
determination of a fact in issue”); Jones v. State, 299 Ga. 40, 44 (785
37
SE2d 886) (2016) (no plain error in eliciting, on redirect, testimony
from officer that evidence from eyewitness was more consistent with
other facts uncovered in investigation than information provided by
defendant, where officer had been cross-examined about the manner
in which she conducted investigation). We conclude that any error
was harmless because the jury ultimately heard, without objection,
testimony from multiple witnesses that contradicted Appellant’s
pretrial statement, and Lt. Cross’s response — that there were some
discrepancies — was merely cumulative of that testimony.
Third, Appellant asserts that the trial court abused its
discretion in overruling a single “leading” objection when the
prosecutor asked Lt. Cross if Appellant admitted in his pretrial
interview that he tried to get money from Atkinson. However,
Appellant has failed to demonstrate harm given that the jury heard
Appellant’s pretrial interview in which he admitted that he wanted
Atkinson to pay him for the drugs. Thus, regardless of whether the
trial court abused its discretion in overruling the objection,
Appellant has failed to demonstrate harm. See Merrit v. State, 310
38
Ga. 433, 438-439 (851 SE2d 555) (2020) (any error in allowing State
to ask leading questions was harmless, in part, because much of
testimony elicited with leading questions was cumulative of other
evidence).
(b) Appellant also contends that the trial court abused its
discretion in overruling his hearsay objection to testimony by
Atkinson’s daughter Felicia about the conversation she had with her
father the day after he was admitted to the hospital. Regardless of
whether the trial court abused its discretion in overruling
Appellant’s hearsay objection, any error was harmless because
Felicia’s testimony was cumulative of the testimony of multiple
other witnesses. See Leonard v. State, 316 Ga. 827, 834 (889 SE2d
837) (2023) (pretermitting whether trial court erred in admitting
statements victim made before his death and holding that any error
was harmless where substance of statements was cumulative of
other properly admitted testimony). See also Anglin, 302 Ga. at 336
(“The erroneous admission of hearsay is harmless where
substantial, cumulative, legally admissible evidence of the same fact
39
is introduced.”).
For these reasons, Appellant’s claims that the trial court
abused its discretion in overruling his evidentiary objections do not
require reversal.
7. Finally, Appellant contends that he was denied effective
assistance of counsel due to his trial counsel’s decision to call the
paramedic as a witness; failure to object to Cpl. Jira’s testimony that
criminal activity was frequent in the neighborhoods where Atkinson
was injured and Appellant was apprehended; and failure to retain
an expert witness to address proximate cause.11 To establish his
claim of ineffectiveness of counsel, Appellant must prove both
deficient performance by his trial counsel and resulting prejudice.
See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80
11 In the “plain error” enumerations addressed in Division 5 above,
Appellant asserts “alternatively” that trial counsel was ineffective. However,
he makes no substantive argument regarding trial counsel’s alleged
deficiencies in these matters. Accordingly, we do not address these claims of
ineffectiveness. See Former Supreme Court Rule 22 (“Any enumerated error
not supported by argument or citation of authority in the brief shall be deemed
abandoned.”). Our Rule 22 (1) now provides, “Any enumerated error or subpart
of an enumerated error not supported by argument, citations to authority, and
citations to the record shall be deemed abandoned.”
40
LE2d 674) (1984). To establish deficient performance, Appellant
must show that his attorney’s acts or omissions were “objectively
unreasonable . . . considering all the circumstances and in the light
of prevailing professional norms.” Davis v. State, 299 Ga. 180, 182-
183 (787 SE2d 221) (2016). The law recognizes a “strong
presumption” that counsel performed reasonably, which the
defendant bears the burden of overcoming. Strickland, 466 U.S. at
689. To establish the required prejudice, Appellant must show that
but for his attorney’s objectively unreasonable errors, there is a
reasonable probability that the result of the proceeding would have
been different. See id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
We “need not address both components of the inquiry if the
defendant makes an insufficient showing on one.” Davis, 299 Ga. at
183. (cleaned up).
(a) Appellant asserts that trial counsel was deficient in calling
the paramedic as a witness because her testimony — that Atkinson
said he jumped out of the car because people were trying to kill him
41
— corroborated the State’s theory of the case. At the hearing on the
motion for new trial, trial counsel testified that he called the
paramedic because her report indicated that Atkinson told her a
different version of events than he had told his daughter. He also
testified that he tried to interview the paramedic before trial, but
she was “hesitant” to talk to him. At trial, trial counsel did not
attempt to impeach the paramedic with her report, and the report
was not admitted into evidence.
However, assuming that trial counsel was professionally
deficient in calling the paramedic to testify, Appellant has failed to
demonstrate that there is a reasonable probability that the
paramedic’s testimony affected the outcome of the case, given that
the paramedic’s testimony was cumulative of Gallo’s testimony that
she heard Atkinson yelling that he had been kidnapped and that
men were trying to kill him. See generally Payne v. State, 314 Ga.
322, 330 (877 SE2d 202) (2022) (any deficiency in counsel’s failure
to object to alleged hearsay was not prejudicial where the testimony
was cumulative); Koonce v. State, 305 Ga. 671, 675 (827 SE2d 633)
42
(2019) (appellant failed to show prejudice from trial counsel’s failure
to object to certain testimony that was largely cumulative of other
evidence).
(b) Cpl. Jira testified that he was frequently called to respond
to reports of criminal activity around the accident scene and around
the location where Appellant was apprehended. Appellant contends
that his trial counsel was professionally deficient in failing to object
to this testimony because it was irrelevant and served only to
inflame the jury. However, even assuming that the evidence was
irrelevant and properly subject to an objection under OCGA § 24-4-
402 (“Evidence which is not relevant shall not be admissible.”),
Appellant has not shown that his trial counsel’s failure to object was
patently unreasonable, given that the testimony was cumulative of
the testimony of several other witnesses and consistent with
Appellant’s own testimony that he was involved in criminal activity
and frequented those areas. Thus, Appellant has not shown that his
counsel was deficient in failing to object to Cpl. Jira’s testimony. See
Sawyer v. State, 308 Ga. 375, 384 (839 SE2d 582) (2020) (trial
43
counsel not deficient in failing to object to cumulative testimony).
(c) Appellant asserts that trial counsel was deficient in failing
to utilize an expert witness to counter the testimony of the medical
examiner as to the cause of Atkinson’s death. Trial counsel testified
that causation is a difficult issue for a defense attorney given
existing case law. He also explained that his strategy was to show
that Appellant’s actions did not cause Atkinson to jump out of the
car and that Atkinson instead jumped out of the car due to the
intoxicating effects of cocaine and alcohol. Even assuming that trial
counsel was deficient in not retaining a medical expert on proximate
cause, Appellant has failed to establish prejudice. At the hearing on
the motion for new trial, Appellant did not present the testimony of,
or an affidavit from, an expert witness that countered the State’s
medical expert. Accordingly, Appellant has failed to show Strickland
prejudice. See Pauldo v. State, 317 Ga. 433, 437 (893 SE2d 633)
(2023) (“It is well established that a defendant fails to establish
prejudice under Strickland when he merely contends that trial
counsel was deficient for failing to present an expert, without also
44
presenting evidence at the motion-for-new-trial hearing about what
the potential expert would have testified to at trial.”).
Accordingly, Appellant’s claims that he was denied effective
assistance of counsel fail. 12
Judgment affirmed. All the Justices concur.
12 Appellant states in passing that the collective prejudice from trial
counsel’s deficiencies “has the potential” to establish prejudice under
Strickland, but he fails to make any argument as to how he was prejudiced by
the cumulative effect of the alleged deficiencies. He also states in the final
sentence of his brief that the claims raised on appeal “individually and
collectively” require reversal. However, he again fails to make any argument
that the collective prejudice from the alleged deficiencies of his trial counsel
and from the alleged trial court errors requires reversal. See State v. Lane, 308
Ga. 10, 18 (838 SE2d 808) (2020) (“A defendant who wishes to take advantage
of the [cumulative error rule] should explain to the reviewing court just how
he was prejudiced by the cumulative effect of multiple errors.” (cleaned up)).
In any event, we conclude that Appellant has failed to establish that the
combined prejudicial effect of the five assumed trial court errors of an
evidentiary nature, which we address in Divisions 5 and 6, and the three
assumed instances of deficient performance of trial counsel denied him a
fundamentally fair trial. See, e.g., Huff v. State, 315 Ga. 558, 568 (883 SE2d
773) (2023) (rejecting cumulative error claim “because Appellant has not
demonstrated that the prejudicial effect of the assumed trial court errors and
ineffective assistance denied him a fundamentally fair trial”).
45