307 Ga. 24 FINAL COPY
S19A0820. BROWN v. THE STATE.
BENHAM, Justice.
Appellant LaQuan Brown appeals her convictions for the
murder of Ivory Carter, the armed robbery and aggravated assault
of George Jackson, and the attempted murder and attempted armed
robbery of Frederick Knight.1 Appellant contends that the evidence
1 The crimes occurred between July 30 and August 4, 2014. In October 2014, a Chatham County grand jury returned a thirty-two count indictment charging Brown and two co-indictees (who were not part of the trial below) with offenses related to the crimes committed against Carter, Jackson, and Knight. The thirty counts relevant to Brown are as follows: malice murder; four counts of felony murder (predicated on hijacking, armed robbery, aggravated assault, and possession of a firearm by a first offender, respectively); three counts of hijacking a motor vehicle (Carter, Jackson, and Knight); five counts of aggravated assault (Carter (two counts), Jackson (two counts), and Knight); two counts of armed robbery (Carter and Jackson); two counts of criminal attempt to commit a felony (the attempted murder and attempted armed robbery of Knight); and thirteen counts of possession of a firearm during the commission of a felony (one count for the use of a firearm in each of the charged offenses). At a trial conducted from February 16 through 23, 2016, a jury returned guilty verdicts on all charges except one count of felony murder (predicated on possession of a firearm by a first offender), hijacking a motor vehicle (Knight), and possession of a firearm during the commission of a felony (hijacking of Knight). In March 2016, the trial court sentenced Brown to serve: life in prison without the possibility of parole for malice murder; a consecutive five-year term in prison for possession of a was insufficient to sustain her convictions, that the trial court
erroneously ruled on a number of evidentiary matters, that the rule
of lenity should be applied to her sentences, and that trial counsel
was ineffective in eight different ways. Finding no reversible error,
we affirm.
Reviewing the facts in a light most favorable to the verdicts,
the evidence adduced at trial established as follows. On July 27,
2014, Appellant contacted Prince Owens for a ride, asking to be
picked up near an apartment complex. Owens arrived at the
firearm during the commission of a felony (murder); a consecutive twenty-year term in prison for hijacking a motor vehicle (Carter); a concurrent twenty-year term in prison for armed robbery (Carter); a consecutive twenty-year term in prison for hijacking a motor vehicle (Jackson); a consecutive five-year term in prison for possession of a firearm during the commission of a felony (hijacking Jackson); a concurrent twenty-year term in prison for armed robbery (Jackson); a consecutive thirty-year term in prison for criminal attempt to commit a felony (the attempted murder of Knight); a consecutive five-year term in prison for the possession of a firearm during the commission of a felony (attempted murder of Knight); and a concurrent twenty-year term in prison for criminal attempt to commit a felony (attempted robbery of Knight), for a total sentence of life imprisonment without the possibility of parole plus eighty-five years. All other verdicts were deemed vacated by operation of law or merged by the trial court, and the State does not raise any merger issue. On March 23, 2016, Appellant filed a timely motion for new trial, which was amended in September 2016. Following a hearing in November 2016, the trial court denied the motion (as amended) on March 26, 2018. Appellant filed a timely notice of appeal to this Court; this case was docketed to the April 2019 term of this Court and thereafter submitted for a decision on the briefs. 2 location and waited for Appellant, but she never appeared and never
answered his telephone calls. When Owens returned to his home,
he discovered that it had been burglarized.
On July 30, the same telephone number that Appellant had
used to contact Owens was used to contact Ivory Carter, a sales
manager at a local car lot who drove a dealership-owned Nissan
Murano. Numerous telephone calls occurred between Appellant and
Carter that day, including one just minutes before a witness
observed three individuals surround an SUV and then heard a
number of “pops.” That witness then observed a man, later
identified as Carter, run toward him for help; Carter, who had been
shot, collapsed in front of the witness and subsequently died of his
injuries. Days later, Appellant and one of her co-indictees, Rashard
Mosley, went to stay with Appellant’s cousin, Mary Singleton. The
pair arrived at Singleton’s residence driving a Nissan Murano, and
Appellant later confided in Singleton about Carter’s shooting.
Singleton ultimately learned that the murder occurred because a
planned robbery had gone awry.
3 On August 3, Appellant used Singleton’s telephone number to
contact George Jackson, who was driving in the area of Singleton’s
residence. According to Jackson, he heard someone call out his
name and then saw people on bicycles steer in front of his vehicle;
when he stopped, two individuals jumped into his SUV. One of the
individuals, a woman, brandished a weapon and demanded that
Jackson turn over his keys. Following a struggle for the firearm,
Jackson escaped on foot; his cellular telephone and car keys were
taken from the vehicle. Jackson would later point out Appellant in
a photo array, indicating that she “favored” the woman from the
incident.
The next day, Appellant used Singleton’s telephone to arrange
a meeting with Frederick Knight, who was acquainted with
Appellant from a previous romantic encounter. Knight drove to a
location near Singleton’s residence, and Appellant met him on the
street, positioning herself halfway into the vehicle. As the pair were
talking, Mosley walked up to Knight and pointed a gun at him,
telling Knight not to do anything. In response, Knight pressed the
4 accelerator; Appellant jumped out of the truck, and Mosley fired
numerous shots at Knight’s fleeing vehicle. Singleton would testify
at trial that, after this incident, she overheard Appellant and Mosley
remark that they “didn’t get anything” from the incident.
After Knight reported the shooting to police, Appellant and
Mosley were arrested at Singleton’s residence. A Nissan Murano
with a shattered windshield was recovered in an adjacent lot, and a
subsequent search of Singleton’s residence yielded the firearm used
against Knight, as well as vehicle keys for both the Murano and
Jackson’s vehicle. The jury learned that Appellant’s DNA was found
on the key to the Murano; that Appellant had sent inculpatory
letters from jail acknowledging her involvement in the crimes and
comparing herself and Mosley to “Bonnie and Clyde”; and that
Appellant ultimately gave a statement to police admitting her
involvement in Carter’s murder, which, she explained, resulted from
a botched robbery.
1. Appellant first contends that the State failed to adequately
prove Count 25 — criminal attempt to commit a felony (attempted
5 armed robbery of Knight) — as that crime was alleged in the
indictment and, thus, that there was a fatal variance between the
indictment and the proof at trial. This claim has no merit.
Criminal attempt is accomplished “when, with intent to
commit a specific crime, [a person] performs any act which
constitutes a substantial step toward the commission of that crime.”
OCGA § 16-4-1. Armed robbery, in relevant part, is accomplished
“when, with intent to commit theft, [a person] takes property of
another from the person or the immediate presence of another by
use of an offensive weapon[.]” OCGA § 16-8-41 (a). Here, Count 25
charged that Appellant and Mosley “individually and as parties
concerned in the commission of a crime . . . knowingly and
intentionally attempted to commit the crime of Armed Robbery . . .
in that the said accused pointed a gun at Mr. Knight and demanded
his property, acts which constitute a substantial step toward the
commission of said crime.”
Appellant argues that the evidence at trial unequivocally
established that, though a gun was pointed at Knight, there was
6 never a demand for property, and, thus, that the State failed to prove
“an essential element of the crime it alleged.” Appellant’s argument,
though, hinges on Knight’s testimony that there was no verbal
demand for property. As the jury was instructed, however, the facts
of the case could be established by both direct and circumstantial
evidence.
The evidence, as presented to the jury, showed that Appellant
arranged a meeting with Knight; that, when Knight arrived at the
rendezvous point, Appellant strategically arranged herself halfway
in his vehicle (preventing him from moving the vehicle); that she
distracted Knight while Mosley approached the vehicle with a
firearm; that, while holding Knight at gunpoint, Mosley instructed
Knight not to do anything; and that, after the incident, Appellant
and Mosley lamented that the robbery was unsuccessful. Knight
testified that he perceived that he was being robbed, and the
evidence permitted the jury to similarly conclude that, though there
was no verbal request for property, the actions of and circumstances
created by Appellant and Mosley amounted to a demand for Knight’s
7 property. See, e.g., Worthen v. State, 304 Ga. 862, 868 (823 SE2d
291) (2019) (“Jurors are normally entitled to make reasonable
inferences from circumstantial evidence regarding all sorts of facts,
including the facts necessary to find defendants guilty beyond a
reasonable doubt of capital crimes.”).
Moreover, even if there were a deviation between the
allegations in the indictment and the evidence adduced at trial,
there was no fatal variance.
Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.
Delacruz v. State, 280 Ga. 392, 396 (627 SE2d 579) (2006).
Appellant was not subjected to either of these dangers. Count
25, which tracks the language of the relevant statutes, sufficiently
8 informed Appellant of the nature and substance of the criminal
attempt charge, and Appellant “has not shown that [s]he was unable
to present a viable defense to such charges or that [s]he was
surprised or misled at trial by” the State’s failure to present evidence
of a verbal demand for property. Roscoe v. State, 288 Ga. 775, 776-
777 (707 SE2d 90) (2011). Moreover, “there is no danger that [s]he
could be prosecuted again for the same offense,” as the indictment
in this case specifically describes the incident for which Appellant
was charged and ultimately convicted. Cooper v. State, 286 Ga. 66,
68 (685 SE2d 285) (2009). There was no fatal variance. See Roscoe,
288 Ga. at 776 (no fatal variance where proof of prior felony offense
presented at trial differed from that alleged in the indictment);
Cooper, 286 Ga. at 68 (no fatal variance where the evidence of cause
of death presented at trial differed from the cause of death alleged
in the indictment); Murray v. State, 328 Ga. App. 192, 193 (761 SE2d
590) (2014) (no fatal variance where indictment alleged burglary
victim owned dwelling but evidence at trial established that the
victim did not finalize the purchase of the residence until after the
9 date of the burglary). See also Lebis v. State, 302 Ga. 750, 759-760
(808 SE2d 724) (2017). Irrespective of whether there was an explicit
demand for property, significant evidence established that
Appellant, both individually and as a party to the crime, took
substantial steps toward the commission of an armed robbery
against Knight as alleged in the indictment.
Finally, we conclude that the evidence as summarized above
was sufficient to enable a rational trier of fact to conclude beyond a
reasonable doubt that Appellant was guilty of the crimes of which
she was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt
2781, 61 LE2d 560) (1979).
2. As mentioned above, Prince Owens testified at trial
concerning his encounter with Appellant and his subsequent
discovery that his residence had been burglarized. Though
Appellant was never charged in connection with that incident, the
trial court ruled that Owens’ testimony was admissible as intrinsic
evidence, concluding that the burglary was “inextricably linked” to
the charges in the indictment. Appellant argues on appeal, as she
10 did below, that this evidence was not properly admitted. There is no
error.
While OCGA § 24-4-404 (b) (Rule 404 (b)) generally controls the
admission of other acts evidence, also known as “extrinsic evidence,”
evidence of criminal activity other than the charged offense is not “extrinsic” under Rule 404 (b), and thus falls outside the scope of the Rule, when it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense.
(Citations and punctuation omitted; emphasis in original.) United
States v. Edouard, 485 F3d 1324, 1344 (11th Cir. 2007). See also
Smith v. State, 302 Ga. 717 (4) (808 SE2d 661) (2017).
[E]vidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.
(Citation and punctuation omitted.) Williams v. State, 302 Ga. 474,
485-486 (807 SE2d 350) (2017). We review the trial court’s ruling
for abuse of discretion. See Fleming v. State, 306 Ga. 240 (3) (a) (830
11 SE2d 129) (2019).
Here, Appellant was charged with numerous offenses that
occurred over the course of approximately a week, all of which
involved Appellant contacting men by telephone to set them up to
steal from them. This crime spree — indeed, Appellant compared
herself to “Bonnie” of the infamous “Bonnie and Clyde” —
apparently began with the burglary of Owens’ residence and
included Carter’s murder, which occurred just days later. Appellant
used the same telephone number to contact both Owens and Carter;
Appellant references this fact, as well as the incident involving
Owens, in her numerous jailhouse letters to Mosley. As such, the
evidence concerning Owens’ encounter with Appellant and the
burglary of his home was a link in the chain of events leading up to
the murder and completed the story of the crimes for the jury. See
Williams v. State, 342 Ga. App. 564 (1) (804 SE2d 668) (2017)
(evidence of uncharged carjacking admissible as intrinsic evidence
where it occurred in the middle of a three-day carjacking spree and
where evidence from the uncharged offense helped connect
12 defendant to charged offenses). See also Johnson v. State, 348 Ga.
App. 831 (1) (823 SE2d 351) (2019); Baughns v. State, 335 Ga. App.
600 (1) (782 SE2d 494) (2016). Further, though it implicated
Appellant in yet another criminal act, the probative value of
evidence concerning the burglary of Owens’ residence was not
substantially outweighed by the danger of unfair prejudice. As such,
the trial court did not abuse its discretion here.
Moreover, even if the trial court’s ruling were erroneous, any
error was harmless. See United States v. Sparks, 440 Fed. Appx.
782, 785 (11th Cir. 2011). The evidence against Appellant — which
included eyewitness accounts, DNA evidence, and Appellant’s own
inculpatory statements — was overwhelming, and there is no
reasonable probability that the evidence concerning the uncharged
burglary likely contributed to the convictions.
3. During the trial, Appellant was permitted to ask Knight
about his status as a convicted felon and to provide the jury with the
corresponding sentencing form, which reflected Knight’s convictions
for child molestation. The trial court did not, however, permit
13 Appellant to question Knight about the facts underlying the
convictions or to provide the jury with the indictment setting out the
corresponding allegations; Appellant contends that this was
erroneous. However, we need not decide the bounds of what
“evidence” is admissible to show “that a witness other than an
accused has been convicted of a crime . . . punishable by death or
imprisonment in excess of one year,” OCGA § 24-6-609 (a) (1),
because any possible error here was harmless.
“In the context of Rule 609, error is harmless if the witness’
credibility was sufficiently impeached by other evidence, or if the
Government’s case was strong enough to support a conviction even
apart from the witness’ testimony.” United States v. Burston, 159
F3d 1328, 1336 (11th Cir. 1998).2 Aside from the overwhelming
evidence of guilt, Appellant used her available impeachment
material to great effect. Even though the factual details of the
2 “Rule 609 of Georgia’s new Evidence Code is materially identical to
Rule 609 of the Rules of Federal Evidence,” Bashir v. State, 350 Ga. App. 852 (830 SE2d 353) (2019), and, as such, “we look to federal case law” with respect to the interpretation and application of the rule, State v. Almanza, 304 Ga. 553, 556 (820 SE2d 1) (2018). 14 offenses were not presented during trial, Knight admitted during
cross-examination that he was a convicted felon, Knight’s
sentencing form (reflecting the nature of the offenses, Knight’s
guilty plea, and Knight’s sentences) was provided to the jury, and
Appellant’s trial counsel used the convictions during closing
argument to characterize Knight as a “liar” and a “perjurer” and to
repeatedly refer to him as a “child molester,” suggesting that his
earlier romantic relationship with Appellant may have been
improper. Accordingly, Appellant is not entitled to relief on this
claim.
4. While cross-examining the lead detective in the Jackson
case, Appellant sought to admit into evidence a form showing that
the detective had attempted to interview Appellant in October or
November 20143 but that Appellant had invoked her right to silence.
The trial court disallowed the form on relevancy grounds, and
Appellant argues on appeal that this ruling was erroneous.
3 The parties appear to agree that the date on the form is inaccurate.
The form is dated October 2014, but the transcript reflects that the attempted interview may have actually occurred in November 2014. 15 “OCGA § 24-4-401 . . . defines relevant evidence broadly as
‘evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.’” State v.
Orr, 305 Ga. 729, 736 (827 SE2d 892) (2019). “Decisions regarding
relevance are committed to the sound discretion of the trial court.”
Smith v. State, 299 Ga. 424, 429 (788 SE2d 433) (2016). Though not
entirely clear from the transcript, it appears that trial counsel was
aiming to use Appellant’s invocation of her right to silence with
respect to the Jackson interview to somehow cast doubt on the
voluntariness of her earlier statement regarding Carter’s murder.
Specifically, it appears that trial counsel wanted to use the form to
imply that “the police ke[pt] coming out and talking to [Appellant]
. . . eventually [. . .] get[ting] her to [. . .] waive her rights.” However,
the two interviews involved different crimes and different
investigators, and Appellant invoked her right to silence with
respect to the Jackson case months after her statement concerning
Carter’s murder. The rights-waiver form from the Jackson
16 interview would not, as trial counsel argued, have been relevant to
show that Appellant was somehow harassed into providing her first
statement; indeed, the form would have shown quite the opposite —
namely, that despite previously agreeing to give a statement, she
opted to invoke her right to silence when asked to provide a second
one. Accordingly, the trial court did not abuse its discretion in
concluding that the rights-waiver form was irrelevant to the
question of the voluntariness of Appellant’s statement concerning
the murder.
5. Appellant next argues that the trial court erred by
sentencing her for criminal attempt to commit murder on Count 23
and criminal attempt to commit armed robbery on Count 25. In her
view, the rule of lenity requires that she be sentenced for aggravated
assault on Count 23 and aggravated assault with intent to rob on
Count 25 because the facts presented at trial also satisfy the
elements of those offenses. The rule of lenity requires no such thing.
As we have explained before,
although the rule of lenity may require a court to reverse
17 a conviction based upon the violation of a statutory provision that has been effectively abrogated by a duplicative provision imposing a lesser penalty, the rule does not allow the court to impose a sentence for an offense different than the one unambiguously provided for in the statute of which the defendant was found guilty. Here, [Appellant] was not charged with or convicted of [aggravated assault or] aggravated assault with intent to rob, and [she] has not challenged [her] prosecution for [attempted murder or] attempted armed robbery. Instead, [she] was convicted of [criminal attempt to commit murder and] criminal attempt to commit armed robbery and was sentenced accordingly. Thus, the trial court did not err.
(Punctuation and footnote omitted; emphasis omitted) Davis v.
State, 306 Ga. 140, 143 (829 SE2d 321) (2019) (quoting State v.
Hanna, 305 Ga. 100, 105 (2) (823 SE2d 785) (2019)). Accordingly,
this claim is without merit.
6. Finally, Appellant asserts that her trial counsel was
constitutionally ineffective in eight different ways; the trial court
concluded that Appellant had demonstrated neither deficient
performance nor prejudice. We agree with the trial court’s
assessment that Appellant is not entitled to relief.4
4 Appellant puts forth no meaningful argument regarding prejudice with
18 To succeed on her claims, Appellant must show both that her
trial counsel’s performance was deficient and that she suffered
prejudice as a result of counsel’s deficient performance. Strickland
v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). “To prove deficient performance, Appellant must show that
[her] lawyer performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d
637) (2013). Appellant must also show that “the deficient
performance prejudiced the defense, which requires showing that
counsel’s errors were so serious that they likely affected the outcome
of the trial.” Jones v. State, 305 Ga. 750, 755 (4) (827 SE2d 879)
(2019). “[S]atisfaction of this test is a difficult endeavor. Simply
because a defendant has shown that [her] trial counsel performed
respect to her eight claims of ineffectiveness. Instead, Appellant “cites, without comment or differentiation, 14 cases for [her] general assertion that failure to object to objectionable testimony ‘can establish ineffective assistance of counsel.’” Koonce v. State, 305 Ga. 671, 673 (827 SE2d 633) (2019). We note that “this Court is not required to scour the record for support for an appellant’s arguments.” Davis, 306 Ga. at 144. 19 deficiently does not lead to an automatic conclusion that [she] was
prejudiced by counsel’s deficient performance.” Davis, 306 Ga. at 144
(3). And “[i]f an appellant is unable to satisfy one prong of the
Strickland test, it is not incumbent upon this Court to examine the
other prong.” (Citation and punctuation omitted.) Id. at 143 (3).
(a) Appellant argues that trial counsel should have objected
when an investigator testified that she identified Appellant using a
“jail database.” According to Appellant, trial counsel’s failure to
object permitted the “introduction of improper character evidence.”
However, this passing and non-responsive reference to Appellant’s
personal information being included in a jail database did not
amount to improper character evidence, and trial counsel’s failure
to object does not amount to deficient performance. See Babbage v.
State, 296 Ga. 364 (4) (d) (768 SE2d 461) (2015) (“[I]t is well
established that a witness’ passing reference to a defendant’s past
criminal record — particularly when it is not responsive to the
question posed — does not improperly place his character in issue.”).
Moreover, even if trial counsel should have objected, Appellant has
20 made no showing that the passing reference had any impact on the
outcome of her trial given the overwhelming evidence of her guilt.
See id. at 370.
(b) While in jail, Appellant wrote a letter to Owens asking him
to convince Knight not to testify at trial. At trial, the State had
Owens read the letter aloud and then had it admitted into evidence;
later, the State had a second witness (an investigator) read the letter
aloud while it was displayed by a digital projector for the jury.
Appellant contends that trial counsel failed to object to this
“needlessly cumulative” presentation of evidence.
As an initial matter, it is not at all clear that the testimony was
cumulative. The transcript reflects that Owens had a difficult time
reading the letter — both due to the handwriting and the physical
condition of the letter — and it is not at all obvious that the entirety
of the letter was accurately read to the jury. The latter reading and
presentation of the letter appears to have been more complete and
accurate. Further, Appellant makes no showing that having a
second witness read the letter while it was displayed on a screen
21 affected the outcome of her trial. The letter did not directly
implicate Appellant in the charged offenses, the evidence against
Appellant with respect to Knight was strong, and the letter, as
admitted into evidence, would have been provided to the jury for its
consideration during deliberations.
(c) Appellant next contends that trial counsel was ineffective
for failing to object when Knight “speculated” that he was being
robbed by Appellant and Mosley, though no verbal demand for
property was made. However, Knight’s testimony was “rationally
based on [his] perception and helpful to understanding [his]
testimony.” (Citation and punctuation omitted.) Grier v. State, 305
Ga. 882, 885 (828 SE2d 304) (2019). See also OCGA § 24-7-701 (a).
Even though there was no verbal demand for property, Knight’s
perception that he was being robbed was rationally based on his
interaction with Appellant and then being held at gunpoint and told
not to move. Id. Accordingly, the testimony was proper and there
was no cause for objection.
(d) During trial, a detective summarized a statement provided
22 by Knight at the time that he identified Appellant from a
photographic lineup, testifying as follows:
When [Knight] identified the photograph of [Appellant], he identified her as the female he had been in phone contact with, that had asked him to come over to Cornwall Street, and to bring the $50. And then approached his passenger door, to which he opened, and she stood in the doorway. And as she stood there, immediately the male approached with the gun, told him not to move, and then he pulled off and shots were fired.
Appellant complains that trial counsel was ineffective for failing to
lodge a hearsay objection. However, at the time the detective
testified, Knight had already given extensive testimony concerning
the events in question (and had been thoroughly cross-examined),
and, further, a different investigator had already provided
substantially similar testimony concerning Knight’s statement to
law enforcement. Accordingly, this testimony was cumulative of
evidence already presented to the jury, and “[t]rial counsel was not
deficient in failing to object to the cumulative testimony of [the]
[d]etective” on this matter. Koonce v. State, 305 Ga. 671, 676 (827
SE2d 633) (2019). See Miller v. State, 296 Ga. 9 (4) (b) (764 SE2d
23 823) (2014) (trial counsel not ineffective for failing to object to
hearsay testimony where it was cumulative of other testimony
already before the jury). Further, because the evidence tying
Appellant to this incident was strong — including telephone records,
an eyewitness account, and physical evidence — Appellant cannot
demonstrate prejudice.
(e) Appellant next complains that trial counsel failed to object
when an investigator “identified” Appellant in a surveillance video
and related still photographs. Specifically, Appellant claims that
the investigator’s identification was improper because it was made
by photographic comparison rather than any “prior familiarity with
[Appellant].” This claim fails for two reasons. First, the testimony
about which Appellant complains relates to how the investigator
identified Appellant in the surveillance video during the course of
her investigation; indeed, at the time of trial, the investigator had
arrested, met with, and interviewed Appellant about the murder,
and there is no argument that the investigator was incapable of
making a lawful identification of Appellant. Second, at the time the
24 investigator testified, Appellant had already been identified as being
in the surveillance video by her cousin, Singleton, and a still
photograph from the video had already been admitted into evidence;
as such, the evidence was merely cumulative of that already before
the jury. See Miller, supra.
Moreover, the surveillance-video evidence pertained to the
investigation of Carter’s murder and the identification of Appellant
as a suspect; however, Appellant’s identity with respect to Carter’s
murder (and her presence in the surveillance video) was hardly in
doubt. Appellant made numerous admissions regarding her
involvement in Carter’s murder — to her cousin, to law enforcement,
and in her jailhouse letters; she placed herself at the location where
the surveillance video was taken; and DNA evidence connected her
to the crime. As such, there is also no prejudice.
(f) The State successfully admitted a number of jailhouse
letters written by Appellant to Mosley; an investigator testified
during trial that, in one of those letters, Appellant was “coaching”
Mosley and “telling him what to say” with respect to Carter’s
25 murder. Appellant contends that trial counsel should have objected,
as it was improper for the investigator to “draw inferences or express
conclusions that the jurors should and can draw for themselves.”
This claim, like the others, fails because Appellant cannot
In the letter at issue, Appellant admits to Mosley that she
made a statement to police concerning the murder, attempts to
minimize the import of her inculpatory statement, and begs Mosley
for forgiveness; she also tells Mosley what she supposedly told police
and advises him to claim self-defense. However, the jury learned
that the letter did not accurately recount what Appellant had told
investigators. Further, though the letter advises Mosley that he
should claim self-defense, Appellant had, in fact, already implicated
both of them in the armed robbery and murder of Carter. Finally,
Mosley did not testify at Appellant’s trial, Appellant did not pursue
a self-defense theory at trial, the letter at issue was admitted into
evidence for the jury’s consideration during deliberation, and the
evidence against Appellant concerning Carter’s murder was
26 overwhelming. Accordingly, trial counsel’s failure to object to the
investigator’s characterization of Appellant’s letter did not affect the
outcome of the trial.
(g) During trial, an investigator testified that Carter should
have had a wallet in his possession at the time he was murdered.
Appellant complains that the investigator had no independent
knowledge of this fact — having only learned it from Carter’s wife –
and that trial counsel should have objected to this testimony. Again,
the evidence implicating Appellant in the crimes against Carter,
including armed robbery, was overwhelming, and, thus, Appellant
cannot demonstrate that she was prejudiced by trial counsel’s
failure to object to this snippet of testimony.
(h) Appellant contends that trial counsel was ineffective for
failing to object when an investigator, who was discussing
Singleton’s telephone records, testified that the records “appeared”
to show Appellant “shopping for her next victim.” Again, even
presuming that trial counsel should have objected to this “opinion”
testimony, Appellant cannot demonstrate prejudice from this
27 passing comment given the overwhelming evidence presented at
trial that, on multiple occasions, Appellant contacted men by
telephone to set them up for theft or robbery.
(i) Finally, the cumulative prejudice from any assumed
deficiencies discussed in Division 6 is insufficient to show a
reasonable probability that the results of the proceedings would
have been different in the absence of the alleged deficiencies. The
evidence against Appellant was considerable with respect to each of
her convictions and included multiple admissions, eyewitness
accounts, DNA evidence, and physical evidence connecting
Appellant to the crime spree. See Jones, 305 Ga. at 757 (4) (e).
Judgment affirmed. All the Justices concur.
DECIDED OCTOBER 7, 2019. Murder. Chatham Superior Court. Before Judge Abbot. Steven L. Sparger, for appellant. Meg E. Heap, District Attorney, Christine S. Barker, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B.
28 Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Scott O. Teague, Assistant Attorney General, for appellee.