Downer v. State

878 S.E.2d 537, 314 Ga. 617

• Court: Supreme Court of Georgia
• Decided: September 20, 2022
• Docket: S22A0632
• Status: Published

Opinion

314 Ga. 617 FINAL COPY

S22A0632. DOWNER v. THE STATE.

MCMILLIAN, Justice.

Following a bench trial in 2016, William Douglas Downer was

found guilty of felony murder, armed robbery, and other crimes in

connection with the death of Michael Larry Hill.1 On appeal, Downer

1 The crimes occurred on or about August 30, 2012. In October 2012, a

Habersham County grand jury indicted Downer and Albert Buford Brown for malice murder (Count 1), felony murder predicated on burglary (Count 2), armed robbery (Count 3), burglary (Count 4), and aggravated assault (Count 5). In August 2013, the trial court granted Downer’s motion to sever his trial from that of Brown. In January 2014, Brown pleaded guilty to murder and first degree burglary and agreed to testify for the State in exchange for a reduced sentence of life imprisonment with the possibility of parole. In March 2015, Downer agreed to a bench trial in consideration for the State’s withdrawal of its notice of intent to seek the death penalty. At a bench trial held from January 11 to 15, 2016, Downer was acquitted of malice murder but found guilty of the remaining counts. The trial court sentenced Downer to serve life in prison for felony murder (Count 2) and 20 years in prison for armed robbery (Count 3), to run consecutively; the remaining counts were merged for sentencing purposes. Downer timely filed a motion for new trial, which he amended through new counsel on September 5, 2019, and February 18, 2021. Following a hearing, the trial court denied the motion for new trial on May 12, 2021. Downer timely appealed, but on September 23, 2021, this Court granted Downer’s motion to remand the case to the trial court to complete the record. On November 18, 2021, the trial court entered an order to incorporate the missing portions of the record. The case was then docketed to the term of this Court beginning in April 2022, and oral argument was heard on May 18, 2022. asserts that (1) the evidence was insufficient to sustain his

convictions; (2) his custodial statements should have been

suppressed; (3) the trial court erred in admitting hearsay

statements through two witnesses; (4) the State withheld

exculpatory evidence; and (5) the trial court erred in denying his

post-trial motion for DNA testing. For the reasons that follow, we

affirm.

Viewed in the light most favorable to the verdict, the evidence

presented at trial showed that for several months in 2012, Downer

lived in a camper on Albert Buford Brown’s property in Habersham

County, where Brown lived with his girlfriend, Joyce Higgins, and

her adult son, Jamie Higgins. As part of his plea deal, Brown

testified extensively about his and Downer’s roles in the crimes.

Brown explained that he occasionally saw Hill, who lived across the

street from Brown’s parents, when he would visit his parents’ home,

also in Habersham County. A few days prior to Hill’s death, Brown,

who was not working at the time and needed money, overheard Hill

saying that he had “some guns and some money.”

2 On August 30, 2012, when Brown thought that Hill would be

out of town, Brown told Downer what Hill had said. The two men,

who were “doped up” on methamphetamine, dressed themselves in

dark-colored hoodies and gloves to “black[ ]” themselves out, and

Brown drove them to Hill’s home in Joyce’s white Chevrolet

Cavalier. Brown brought a knife and a baseball bat that he kept in

a shed on his property. They arrived around 2:00 a.m. after parking

down the street and walking through Hill’s back yard.

Brown picked the lock to Hill’s back door with his driver’s

license. Downer tripped as he entered the home, and Hill — who was

not out of town — immediately came out of his bedroom. Hill moved

toward Brown to grab him, and Brown shoved Hill back toward the

bedroom. After Downer hit Hill twice with the bat, Hill lay moaning

for a couple of minutes. Meanwhile, Brown rummaged through the

home and took Hill’s wallet, a weed eater, a couple of rings, and a

jar of change and brought the items to the car. When he returned,

he saw Hill lying face down on the floor, apparently deceased, with

Downer standing over him. At Downer’s direction, Brown pulled the

3 car to the side of the road in front of Hill’s house, opened the vehicle’s

trunk, and entered the back door where Downer had already

positioned Hill’s body. The two men carried Hill’s body to the trunk

of the car.

They drove back to Brown’s home because they “didn’t know

where else to take [Hill]” and backed the car up to a “burn pit”

located about 40 yards behind the house, next to a shed that Brown

used as a “shop.” Around 4:00 a.m., they put Hill’s body inside the

pit, “[t]hrew some tires on him and some gas and set them on fire.”

They also burned the clothes they were wearing. The fire burned

until approximately 8:00 a.m. when Brown and Downer put water,

wood chip shavings, and dirt on the fire to extinguish it. Brown took

Hill’s rings to a store but was unsuccessful in selling them, so he

gave one to Downer in exchange for marijuana and the other one,

along with the weed eater, to an acquaintance in exchange for

methamphetamine.2 Brown then returned to his home, consumed

2 The acquaintance testified at trial that he paid $20 in cash for the weed

eater and denied receiving a ring from Brown or giving Brown any drugs. The

4 more drugs, and covered Hill’s body with more wood shavings.

Brown did not see Downer again until around midnight the next

day, August 31, when they smoked more methamphetamine

together. In the days following Hill’s death, Brown lit several fires

in the burn pit in an attempt to get rid of the body and the smell,

using gasoline, kerosene, and “anything he could think [of].” Brown

also took the carpet out of the car they used to transport Hill’s body

and vacuumed and cleaned the car using bleach. Brown admitted at

trial that he gave several conflicting stories to officers.

Jamie testified that on August 29, the day before Hill’s death,

he towed Downer’s camper to someone else’s nearby property after

an altercation with Downer over money. Jamie explained that,

earlier that day, Downer, Brown, and Joyce were riding in a car that

ran out of gas. Downer refused to use his own money to buy gas, so

Jamie was forced to bring the group his last seven dollars to

purchase gas so that they could get back home. The following day,

parties later stipulated that officers seized two rings from Downer when he was arrested. 5 just after Hill’s death, Brown gave Jamie cash to pay him back for

the gas he had purchased. Jamie also saw Brown give five dollars to

Joyce. Jamie thought it was suspicious that Brown “had a wad of

cash,” which Brown told him he found in an abandoned house.

In the following week, Jamie’s suspicions grew when he noticed

the “[m]ost horrible smell you’ll ever smell in your life” on the

property. Jamie questioned Brown about the smell, and Brown told

him it was a dead animal. However, when Jamie asked Brown to

help him find and move the dead animal, Brown refused to show him

where the animal was located. Jamie also found it suspicious that

Downer and Brown built up the burn pit “all the sudden” beside the

shed, putting concrete blocks around the pit, and mounted a light on

the shed that pointed directly at the burn pit. He also observed both

Downer and Brown burning “stuff” in the pit, which was smoldering

each day he returned home from work that week. He specifically saw

Brown “messing” with the burn pit and occasionally saw Downer on

the property during this time. At some point, Joyce told him that

Brown was “emotionally upset” and had told her “that he was going

6 to go to hell because him and [Downer] had buried a man outside

the shed.”3 Jamie shared this information with his brother, and they

decided to confront Brown while Downer was not there. Brown

initially denied the allegation, but when Jamie and his brother

started digging in the fire pit, Brown confessed that Hill’s body was

located in the pit. Jamie immediately called the police, and Brown

was arrested the same day, September 5, 2012.

Sergeant Matthew Wurtz, who was assigned to respond to the

missing persons report that had been filed for Hill,4 was the first

officer to arrive at Brown’s home. Based on what Jamie told him,

Sergeant Wurtz read Brown his rights under Miranda5 before

speaking with him and examining the burn pit, where he discovered

3 Brown later testified that a few days before his arrest he “broke down

to [his] wife and . . . told her about [him] and [Downer] breaking in to the house and [Hill] being killed.” (Although Joyce and Brown were not formally married at the time of the crimes, Jamie testified that they were married at the time of Downer’s trial.) 4 After Hill’s friends and pastor were unable to contact him for a few

days, Hill’s pastor filed a missing persons report on September 4. In response, an officer asked Hill’s landlord to let him into Hill’s home, but, after a brief search, the officer did not see anything out of place. 5 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). 7 “a pile of stuff that was surrounded by concrete block[s] kind of in a

circular shape where stuff had been burning.” The burn pit smelled

distinctly of burnt flesh and was still smoldering. Officers discovered

a charred and muddy skull with brain matter, loose bones with flesh

and muscle tissue attached, and a metal VFW card with Hill’s name

on it. In the nearby shed, officers found a black and gold Louisville

Slugger baseball bat with dark stains that were later confirmed to

be Hill’s blood. Officers impounded the white Chevrolet, which had

dark stains in the trunk, and which smelled strongly of a household

cleaner.

An examination of Hill’s home revealed an area where blood

had pooled at the bedroom door, bloodstains consistent with

dragging someone through the home to the back door, a blood stain

on Hill’s bed that seeped through the sheets and into the mattress,

and wipe marks of blood on the bedroom wall. An autopsy of Hill’s

remains, confirmed via DNA testing, indicated that the cause of

death was blunt force trauma to the head that occurred around the

time of his death, before his body was burned by fire. An additional

8 examination by an expert in forensic anthropology and traumatic

analysis of human remains also showed that injuries to Hill’s skull

and jaw were consistent with blunt force trauma due to the

depressed nature of the fractures.

Downer was located and arrested on September 6, 2012, and

during his initial custodial interview, Downer stated that the Army

ring he was wearing was given to him by Brown, which he tried to

sell at a pawn shop. Downer denied killing Hill or participating in

the crimes, but he admitted that he put mulch on the burn pit with

Brown and moved the cinderblocks around the perimeter of the burn

pit. During a second interview on September 11, 2012, Downer again

denied any involvement with Hill’s death.6 However, he also made

statements that he and Brown used drugs together; that he was at

Brown’s mother’s house two or three weeks before the murder; that

he helped Brown unload two car loads of mulch the past Tuesday or

Sunday using Brown’s white car; that Brown then burned the

mulch; that Brown “probably” put the body in the burn pit on

6 Video recordings of both interviews were played at trial.

9 Tuesday night; that he saw smoke coming out of the burn pit on

Monday; and that he burned his clothes in the burn pit.

A search of Downer’s cell phone showed that someone texted

Downer on the evening of September 5: “don’t come here the law is

everywhere GBI too,” and cell phone records showed that Downer

then called Brown several times that night, beginning at 9:56 p.m.,

and several times again on September 6. Joyce testified that one

evening around the time that he moved off their property,7 Downer

called Brown. Brown then told her that he was going to meet Downer

at the store. Sometime later that evening after midnight, she saw

three men, including Downer, in her car backing up to the burn pit.

1. Downer argues that the evidence was insufficient to sustain

his convictions as a matter of Georgia statutory law because Brown’s

testimony was not corroborated by “credible evidence.” We disagree.

Although “[t]he testimony of a single witness is generally

sufficient to establish a fact,” in “felony cases where the only witness

is an accomplice,” corroborating evidence is required to support a

7 Joyce could not recall the exact date.

10 guilty verdict. OCGA § 24-14-8. See also Edwards v. State, 299 Ga.

20, 22 (1) (785 SE2d 869) (2016). “Whether accomplice testimony has

been sufficiently corroborated is a question for the [fact-finder], and

even slight corroborating evidence of a defendant’s participation in

a crime is sufficient.” Williams v. State, 313 Ga. 325, 329 (1) (869

SE2d 389) (2022).

Downer argues that his convictions stem entirely from the self-

serving and changing testimony of his co-indictee and that the

State’s attempt to corroborate Brown’s testimony failed to provide

independent corroboration of Downer’s participation in the crimes.

However, this argument ignores the evidence from multiple

independent sources showing Downer’s involvement in the crimes.

Joyce testified that Downer called Brown one evening around the

time that Downer moved off their property and that she then saw

Downer in the car with Brown, backing up to the burn pit in the

middle of the night. Jamie testified that shortly after he moved

Downer’s camper, Brown and Downer built up a burn pit and burned

things in the pit all week, with a “horrible smell” that became worse

11 over time. When Downer received a text message that police officers

were “here,” he made multiple calls to Brown. And at the time

Downer was arrested, he was wearing Hill’s Army ring. In addition,

Downer’s own statements included admissions that he helped build

the pit, put mulch on the pit, and burned his clothes in the pit

following Hill’s death.8 We conclude that this evidence provided

corroboration of Brown’s testimony and supported Downer’s

participation in the crimes for which he was convicted. See

Montanez v. State, 311 Ga. 843, 849 (1) (b) (860 SE2d 551) (2021)

(“The necessary corroboration may consist entirely of circumstantial

evidence, and evidence of the defendant’s conduct before and after

the crime was committed may give rise to an inference that he

participated in the crime.” (citation and punctuation omitted));

McCammon v. State, 306 Ga. 516, 519-20 (1) (b) (832 SE2d 396)

(2019) (“The evidence need not be sufficient in and of itself to

8 Although we conclude in Division 2 below that Downer’s statements

were properly admitted at trial, in determining the sufficiency of the evidence, we consider all of the evidence that was admitted at trial, even if it is argued that certain evidence should have been excluded. Cf. Grier v. State, 313 Ga. 236, 240 (2) (869 SE2d 423) (2022). 12 warrant a conviction, so long as it is independent of the accomplice’s

testimony and directly connects the defendant to the crime or leads

to the inference of guilt.” (cleaned up)).

Although Downer points to several apparent inconsistencies in

the State’s evidence, on appeal “[w]e leave to the [fact-finder] the

resolution of conflicts or inconsistencies in the evidence, credibility

of witnesses, and reasonable inferences to be derived from the facts.”

Smith v. State, 308 Ga. 81, 84 (1) (839 SE2d 630) (2020). Also,

Downer points to the lack of evidence tying him directly to the

murder weapon, but the evidence as described above was more than

sufficient to corroborate that Downer participated in and aided

Brown in the crimes and thus was at least a party to the crimes for

which he was convicted. See Daniels v. State, 306 Ga. 559, 561-62

(1) (832 SE2d 372) (2019) (although appellant’s accomplice was the

person who shot the victim, the evidence was sufficient to show

appellant participated in the crimes and shared criminal intent);

OCGA § 16-2-20 (a) (“Every person concerned in the commission of

a crime is a party thereto and may be . . . convicted of commission of

13 the crime.”). Accordingly, this enumeration fails.

2. Downer asserts that the trial court erred in failing to

suppress his custodial statements. We are not persuaded.

“In deciding the admissibility of a statement during a Jackson-

Denno[9] hearing, the trial court must consider the totality of the

circumstances and must determine the admissibility of the

statement under the preponderance of the evidence standard.”

Munn v. State, 313 Ga. 716, 726-27 (7) (873 SE2d 166) (2022)

(citation and punctuation omitted). To the extent that the

“controlling facts are not in dispute, such as those facts discernible

from a videotape, our review is de novo.” Ellis v. State, 312 Ga. 243,

247 (1) (862 SE2d 279) (2021) (citation and punctuation omitted).

“On the other hand, to the extent that legally significant facts were

proved by evidence other than the video recording, the trial court as

fact[-]finder was entitled to determine the credibility and weight of

that other evidence.” State v. Abbott, 303 Ga. 297, 299 (1) (812 SE2d

225) (2018).

9 See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

14 After Downer was arrested on the afternoon of September 6,

Special Agent Laura Goza of the GBI began interviewing Downer

around 1:10 p.m. The interview, which was video- and audio-

recorded, was played at the Jackson-Denno hearing. It is undisputed

that the recording showed that when Agent Goza attempted to

explain why she was interviewing him, Downer immediately began

talking. Agent Goza repeatedly asked him to stop talking and listen

to her explanation of the waiver of rights form. Agent Goza was

eventually able to explain the form and advise Downer of his rights

under Miranda, including the right to an attorney and the right to

remain silent. Throughout this exchange, Downer continued to

make statements regarding the allegations against him. At one

point, he asked if he needed a lawyer to go over the form. Agent Goza

read to him from the form that he had the right to an attorney and

that he would be agreeing to speak with her without an attorney and

that he was not required to sign the form. Downer replied, “I don’t

mind talking to you ma’am. I don’t mind talking, I have no problems

with that. I understand.” After approximately an hour, Downer

15 suddenly asked, “Hey, can I get Henry Simmons in here?” When

Agent Goza found out that Simmons was a lawyer, she asked

Downer whether he wanted to have an attorney during questioning.

Downer replied, “I don’t need one. I haven’t done nothing. I don’t

need one.” The interview then concluded a little more than an hour

later.

On September 10, 2012, while in custody following the first

interview and after he had been appointed counsel, Downer was

seen by the jail nurse. He asked the nurse to write down several

statements protesting his innocence. He also told her that he wanted

to speak with investigators and that she should write down his

request. The nurse provided her handwritten notes of this

conversation to the Sheriff’s Department, which relayed the request

to the GBI. On September 11, Agent Goza returned to interview

Downer. This interview was also video- and audio-recorded and

played at the Jackson-Denno hearing.10 During that interview,

10 The final portion of this interview was only audio-recorded and was

played for the trial court. The trial court also heard testimony from Agent Goza and the jail nurse. 16 Downer initially denied telling the nurse that he wanted to speak

with investigators, but then told Agent Goza that he was glad she

was there because he had information that could prove where he was

around the time of Hill’s death. Downer acknowledged that his

attorney told him not to talk with the agents, but he immediately

began discussing his various alibis. Then, after reviewing his rights

under Miranda and agreeing to speak with her again, Downer

answered questions from Agent Goza and another GBI special

agent.

Dr. Marlyne Israelian, who conducted several tests to assess

Downer’s intellectual and cognitive function, testified at the

Jackson-Denno hearing that Downer had a brain injury due to a

2009 bike accident “that selectively impacts the areas of his brain

that govern and rule language, reasoning, thought, sequencing,

planning, [and] organization” and that he suffered from these

deficits at the time he was interacting with officers in this case. Dr.

Israelian opined that the Miranda waiver of rights form Downer

signed “involve[d] piecing together multiple concepts and then

17 making this decision based on judgment and reasoning and

perspective in an accurate assessment of one’s ability or disability,

and the potential risk or benefit of proceeding. So it’s a quite complex

problem.” She concluded that, because of his cognitive deficits, he

would have had a very difficult time asserting or reasserting his

rights unequivocally. Following the hearing, the trial court issued

an order suppressing only that portion of Downer’s first statement

given after Downer asked for a certain attorney by name.

(a) Downer argues that the trial court should have suppressed

the entire first interview because (1) he unambiguously invoked his

rights under Miranda at the beginning of the interview, before

Agent Goza even read him those rights, and (2) his mental

disabilities prevented him from voluntarily, knowingly, and

intelligently waiving his rights under Miranda.

However, the record shows that the trial court did not err when

it determined otherwise. The video recording shows that as Agent

Goza started to explain why she was there, Downer immediately

began talking, despite her attempts to stop him and explain the

18 Miranda form. The following exchange then occurred:

GOZA: Okay. But I want to fill this out first. Go over this with you. DOWNER: In the end, I won’t even convict him first, for accusing me of something. I mean I don’t care if he did. I mean, I do care. But if he didn’t do it and he’s still putting me in there with him, because that’s the way he is. GOZA: What do you mean if he didn’t do it? DOWNER: Look I mean I’m avoiding him, and avoiding him, and I’m avoiding him. I avoided him every day ’cause the only thing that he’s been using me for is, you know I had a little bit of money. And I spent it trying to help him and his wife and Jamie. Now if you don’t believe me, go to Jamie. [Brown] is so full of crap you . . . [unintelligible]. GOZA: I talked to Jamie. DOWNER: Right. That’s all I’ve got to say [crosstalk]. GOZA: Okay. So listen, can you read and write? DOWNER: Yes ma’am. Yes ma’am.

At that point, Agent Goza continued explaining Downer’s rights

under Miranda, and Downer replied that he did not “mind talking

to [Agent Goza].” And when Agent Goza cautioned, “Okay. I don’t

want you to sign anything you don’t want to sign,” Downer replied,

“Well no, because I don’t care. I’m good.”

It is well settled that “[p]olice must scrupulously honor a

suspect’s right to remain silent if the person clearly and

unambiguously states that he wants to end a custodial

19 interrogation.” Causey v. State, 307 Ga. 147, 148 (2) (834 SE2d 857)

(2019) (citations and punctuation omitted). However, “if a defendant

equivocates in asserting the right, a police officer is under no

obligation to clarify or to stop questioning.” Id. at 149 (2) (citations

and punctuation omitted).

Here, although Downer points to his statement, “That’s all I’ve

got to say” as an unambiguous request to end the interview, the trial

court specifically found that, based on its review of the video,

Downer’s body language, tone, and cadence of his speech, and the

context in which the statement was made, would cause a reasonable

officer to interpret that statement to mean, “That’s all I’ve got to say,

about that.” (Emphasis in original.)11 In particular, the trial court

concluded that Downer was “attempting to explain his distrust of

Brown” and that nothing in Downer’s speech or manner at that time

11 In context, it is clear that “about that” refers to Downer’s belief that

Brown was using Downer because of his money. We also note that elsewhere in its order granting in part and denying in part Downer’s motion to suppress, the trial judge explained that he had listened to this portion of the interview multiple times and that, although the audio quality is poor, particularly where Agent Goza and Downer are speaking over each other, he understood Downer to say “That’s all I’ve got to say right there.” 20 indicated that he intended to convey a wish to terminate the

interview. Because the video recording supports the trial court’s

findings, we cannot say that the trial court erred in making that

determination. See Causey, 307 Ga. at 150 (2) (appellant did not

clearly and unambiguously invoke right to remain silent where, in

spite of making statements that he wanted to leave, appellant

“never stopped engaging officers in conversation, even after being

told repeatedly that he did not have to talk to authorities”).

Downer also argues that he only capitulated in waiving his

rights under Miranda and continued speaking with Agent Goza

because he suffers from significant brain damage and that,

therefore, his statements were not given voluntarily, knowingly, and

intelligently. However, as the trial court noted in its order, “a

defendant’s alleged cognitive impairment is not dispositive on the

question of voluntariness but is one factor for the trial court to

consider in the context of the totality of the circumstances

surrounding a statement and a waiver of Miranda rights.” Barrett

v. State, 289 Ga. 197, 199 (1) (709 SE2d 816) (2011). “And, whether

21 a defendant lacks the capacity to understand and waive such rights

due to a mental deficiency . . . is a question of fact for the trial court

to determine.” Id. In addition to Dr. Israelian’s testimony, the trial

court also considered that Downer had expressed a clear

understanding of his rights under Miranda and concluded that

Downer had sufficient mental capacity under Georgia law to waive

his rights under Miranda and did, in light of the totality of the

circumstances, voluntarily, knowingly, and intelligently waive those

rights. And the record shows that Downer appeared to understand

the questions posed to him and responded accordingly, even though,

as found by the trial court, Downer “was hard to understand at

times.”

Viewed in this context, we cannot say that the trial court’s

determination was clearly erroneous. See Abbott, 303 Ga. at 299 (1);

Height v. State, 281 Ga. 727, 729 (2) (642 SE2d 812) (2007)

(affirming denial of motion to suppress under a clearly erroneous

standard where trial court considered conflicting evidence of

defendant’s mental capacity and concluded that defendant

22 understood his rights and the consequences of waiving them).

(b) With respect to the second interview, Downer argues that

the trial court’s conclusion that Downer reinitiated contact with the

GBI agents prior to his second statement was incorrect as a matter

of both fact and law. Specifically, Downer argues that when he was

brought back to speak with Agent Goza, he clearly denied initiating

contact. Relying on Maryland v. Shatzer, 559 U.S. 98 (130 SCt 1213,

175 LE2d 1045) (2010), Downer argues that the investigators should

have immediately cut off questioning at that point since Downer had

invoked his right to counsel on September 6, was appointed a lawyer

at his first appearance,12 and told the investigators directly that he

did not ask to speak to them.

However, the trial court was authorized to credit the written

statement and testimony of the nurse over that of Downer and to

determine that, despite his initial denial, Downer had requested to

speak with officers and immediately thereafter expressed a desire to

12 Sometime between September 6 and September 10, Downer secured

counsel through the Mountain Judicial Circuit’s Office of the Public Defender. 23 speak with them. See Love v. State, 309 Ga. 833, 838 (2) (848 SE2d

882) (2020) (affirming denial of motion to suppress where trial court

credited the testimony of officers over defendant’s). In addition, the

trial court determined that the officers again reviewed Downer’s

rights under Miranda and that Downer expressed his

understanding of those rights before waiving them and agreeing to

speak with the officers without his attorney present. See Whitehead

v. State, 308 Ga. 825, 829 (2) (842 SE2d 816) (2020) (trial court did

not err in admitting defendant’s custodial statement where, after

initially invoking right to remain silent, defendant immediately

changed his mind and expressed a desire to talk about a shooting).

And because the trial court did not err by concluding that Downer

initiated further conversation with officers after invoking his right

to counsel, Shatzer does not apply. See Bell v. State, 305 Ga. 707,

710-11 (3) n.6 (827 SE2d 665) (2019) (explaining Shatzer involved

police-initiated interrogations that occurred after the defendant had

invoked his right to counsel and after a break in custody).

Downer also argues, in the alternative, that the trial court

24 erred in not suppressing that portion of the second interview

following Downer’s repeated references to his lawyer. However, the

trial court concluded, and the video recording supports, that Downer

actually stated several times that, although his attorney would not

want him to speak to the investigators alone, he wanted to speak

with them against that advice, which Downer demonstrated by

continuing to speak. Thus, we conclude that the trial court did not

err in determining that these statements were not a clear and

unambiguous request for counsel. See Dozier v. State, 306 Ga. 29, 35

(4) (b) (829 SE2d 131) (2019) (“[T]he mere mention of the word

‘attorney’ or ‘lawyer’ without more, does not automatically invoke

the right to counsel.” (citation and punctuation omitted)).

3. Downer asserts that the trial court erred in permitting two

of the State’s witnesses to testify as to hearsay statements.

When reviewing such evidentiary claims, “we accept a trial

court’s factual findings unless clearly erroneous and review a trial

court’s ultimate decision on the issue for an abuse of discretion.”

Morrell v. State, 313 Ga. 247, 251 (1) (869 SE2d 447) (2022).

25 (a) Downer first points to the following portion of Jamie’s

testimony on direct examination as double hearsay:

Q: And you talk about your suspicions raised and we’ve talked about the activity and the blocks and the odor. Did anything else happen that raised your suspicions even more and led you to make this phone call? A: Yes. My mother had come to me and, uh, she had said — . . . that [Brown] had said to her, after he got emotionally upset, that he was going to go to hell because him and [Downer] had buried a man outside the shed. Q: Now, as a result of being told that did you have some conversation with other family members? A: Yes, I went and talked to my brother about it. . . . We decided that the best thing for us to do was to go confront [Brown] about it because [Downer] was not around at that time. So we confronted [Brown] about it, and at first he denied [it]. So me and my brother was going to ease our conscious [sic] and dig the fire pit up ourself.

(Emphasis supplied.) When defense counsel objected to the portion

emphasized above, the trial court initially ruled that the

prosecutor’s stated purpose of “explain[ing] his conduct” was

insufficient. After the prosecutor argued, “I’m going into why he

made the call to police and why his suspicions rose to the point that

he made the call to the police,” the trial court overruled the objection.

Pretermitting whether each layer of alleged hearsay meets a

26 statutory exception to the hearsay rule,13 the trial court accepted the

State’s proffer that the statement was being offered to explain why

Jamie called the police and not to prove the truth of the matter

asserted. Thus, the trial court concluded that the statement was not

hearsay. See OCGA § 24-8-801 (c) (defining hearsay as “a statement,

other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted”). And there is nothing in the record to indicate that the

trial court considered this testimony for a purpose that would have

implicated the hearsay rule. See Thomas v. State, 284 Ga. 540, 545

(2) (668 SE2d 711) (2008) (“At a bench trial such as this, the trial

court is presumed to have separated admissible evidence from

inadmissible evidence and considered only the former in reaching its

judgment.” (citation and punctuation omitted)). Accordingly, we

discern no abuse of discretion in the trial court’s admission of this

testimony. See Gomillion v. State, 298 Ga. 505, 506 (1) (783 SE2d

13 See OCGA § 24-8-805 (“Hearsay included within hearsay shall not be

excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule.”). 27 103) (2016) (no abuse of discretion in admitting witness’s testimony

explaining that he left after the shooting because someone told him

that the defendant had been looking for him where the trial court

instructed the jury that the statement was admitted not because it

may be true but to explain the witness’s conduct).

(b) Downer also argues that Joyce improperly testified to

statements that Brown made. During the State’s direct examination

of Joyce, the following exchange took place:

Q: . . . But let’s talk about this day that you’ve already said you remember telling about [Downer] coming back to the house. A: Yes, he came and talked with us, sorry. Q: Okay. That’s all right. And did [Downer] leave the house by himself or did [Downer] and [Brown] leave the house together that night? A: At first I was thinking he was going to go home back to the camper because I didn’t realize that [Jamie] had moved the camper. Uh, [Downer] called my husband at some point after that. Q: Okay. And tell the Judge, if you would, how you know [Downer] called your husband? A: My husband picked up the phone and he told me who that was. My husband told me. ... Q: All right. After the phone call do you know how long it was? A: Yes.

28 Q: How long [Brown] was still at the house? A: I don’t know, probably 15 minutes until he left and he told me that he was going to the store, that he was going to go see [Downer] at the store. Q: When did you see [Brown] again? A: Late.

When defense counsel objected, the State responded that

“[s]tatements made by the co-conspirator as to the subject of the

conspiracy are admissible. It doesn’t have to be in furtherance of the

conspiracy.” The trial court determined that Brown’s statements —

that Downer was on the phone and that he was leaving to meet

Downer — were admissible under three exceptions to the hearsay

rule: a statement by a co-conspirator (OCGA § 24-8-801 (d) (2) (E)),

an out-of-court statement by a testifying witness (OCGA § 24-8-801

(d) (1) (A)), and a present sense impression (OCGA § 24-8-803 (1)).

The trial court did not abuse its discretion in concluding that

Brown’s initial statement that he was on the phone with Downer as

he was speaking with him falls within the present sense impression

exception to the hearsay rule. “To be admitted under this exception,

the statement must describe or explain an event or condition that is

29 personally witnessed by the declarant and is essentially

contemporaneous to the statement.” Varner v. State, 306 Ga. 726,

731 (2) (a) (ii) (832 SE2d 792) (2019) (citation and punctuation

omitted). See also OCGA § 24-8-803 (1) (including as an exception to

the hearsay rule “[a] statement describing or explaining an event or

condition made while the declarant was perceiving the event or

condition or immediately thereafter”). Brown’s statement

identifying the person he was presently speaking to on the phone

satisfies these criteria.

With respect to the statement that Brown was leaving to meet

Downer at the store, Downer argues that the State failed to

establish a conspiracy and, thus, that this statement could not have

been made in the course of a conspiracy. OCGA § 24-8-801 (d) (2) (E)

provides in pertinent part:

Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is . . . [a] statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible.

30 Here, the trial court correctly noted these requirements and

specifically found that there was sufficient evidence to show that

Downer and Brown conspired to kill Hill. And in ruling that the

statement was admissible, the trial court also implicitly found that

the statement was in furtherance of that conspiracy. See Kemp v.

State, 303 Ga. 385, 393 (2) (b) (810 SE2d 515) (2018) (explaining

that, although “the trial court did not make any express factual

findings, . . . we can infer from its denial of the motions that it

implicitly found that [the] statements were made in the course of

and in furtherance of a conspiracy”).

When reviewing a trial court’s ruling regarding the

admissibility of such evidence, “we accept the trial court’s factual

findings, such as whether a statement was made in furtherance of a

conspiracy, unless they are clearly erroneous.” Golden v. State, 310

Ga. 538, 545 (3) (852 SE2d 524) (2020) (citation and punctuation

omitted). In addition, “[w]e apply a liberal standard in determining

whether a statement is made in furtherance of a conspiracy, and

31 statements that further the interests of the conspiracy in some way

meet this standard.” Kemp, 303 Ga. at 393 (2) (b).

Based on our review of the record, we cannot say that the trial

court’s findings were clearly erroneous. At the time Joyce testified,

the State had already established the sequence of events and

provided direct testimony from Brown that Downer was involved in

a conspiracy to rob and murder Hill, and as explained in Division 1,

Brown’s testimony was sufficiently corroborated as a matter of

Georgia law. And in applying the appropriate standard in

determining whether this statement was made in furtherance of the

conspiracy, we conclude that Brown’s statement — concerning the

reason he was leaving the house on the trip that ultimately

culminated in Hill’s murder — could be construed to show that

Brown and Downer spoke on the phone in order to make a plan to

meet and carry out the crimes at issue and that Brown told Joyce he

was meeting Downer at the store in order to conceal his true intent

for leaving the house that night. Accordingly, the trial court did not

clearly err in admitting this portion of Joyce’s testimony. See Mosley

32 v. State, 307 Ga. 711, 717 (3) (a) (838 SE2d 289) (2020) (“given the

liberal standard applied to this inquiry, it was not clearly erroneous

for the trial court to conclude that [the co-conspirator’s] statement

that [the defendant] shot [the victim] was made in furtherance of

the conspiracy”).

4. Downer argues that the State withheld evidence that could

have been used to impeach “its two most critical witnesses” in

violation of his due process rights under Brady v. Maryland, 373

U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963). Specifically, Downer

asserts that the State arranged for a wedding for Brown and Joyce

in December 2013, in a building adjacent to the Habersham County

jail, in exchange for Brown’s guilty plea and agreement to testify

against Downer at trial. Downer learned of the wedding post-trial

and included this claim in his motion for new trial. At the second

motion for new trial hearing, an e-mail from Brown’s attorney to the

district attorney’s office was admitted that stated:

[Brown], it seems, is hoping for a couple of things to happen before he enters a plea. One, he would like to re- marry his ex-wife. To this end I spoke with Sheriff Terrell

33 today and he said while this isn’t something he’d normally allow, that if it would help resolve the case he could allow a low-key wedding at the jail.

The State responded, stating that “he can at any time take the death

penalty off the table by accepting responsibility and pleading” and

“we don’t have any problem with reasonable accommodations that

the Sheriff can live with that would make it possible for Brown to do

the right thing.” One of Brown’s attorneys testified at the hearing

that he was present at the wedding, which Brown’s relatives also

attended. The Sheriff testified that he spoke with the State about

arranging the wedding, explaining that “after a short conversation

about [how] he was trying to work out something so he would move

his case on through and get him out of our jail[,] . . . I finally g[a]ve

in and said we would allow it to happen, a short ceremony with just

a couple of folks to be present.” The trial court agreed that the State

failed to disclose material impeaching evidence but determined that

disclosure would not have changed the result of the trial.

To prevail on a Brady violation claim, a defendant must show:

(1) the State possessed evidence favorable to his defense;

34 (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.

Harris v. State, 313 Ga. 653, 664 (5) (872 SE2d 732) (2022) (citation

and punctuation omitted). “To establish the fourth prong, often

referred to as materiality, a defendant does not need to show that he

necessarily would have been acquitted, but only that the State’s

evidentiary suppression undermines confidence in the outcome of

the trial.” Anglin v. State, 312 Ga. 503, 510 (2) (b) (863 SE2d 148)

(2021) (citation and punctuation omitted). On appeal, we review a

trial court’s factual findings regarding a Brady claim for clear error

but review de novo the court’s application of the law to the facts. See

Harris, 313 Ga. at 664 (5).

Here, Downer argues that, in determining that no reasonable

probability exists that the outcome of the trial would have been

different, the trial court improperly limited its reasoning to the

impeachment value of the evidence as to Brown and failed to

35 consider its value as to impeaching Joyce as well and that Downer

was entitled to cross-examine Joyce on the fact that she had recently

married Brown and whether and to what extent she would be willing

to lie for Brown. We agree with the trial court that Downer has

satisfied the first three prongs of a Brady violation.14 See Giglio v.

United States, 405 U.S. 150, 154-55 (92 SCt 763, 31 LE2d 104) (1972)

(the suppression of impeachment evidence that may be used to

challenge the credibility of a witness may constitute a Brady

violation). However, in order to address the fourth prong, “we must

evaluate [the withheld] evidence in the context of the entire record.”

Chavez v. State, 307 Ga. 804, 813 (3) (837 SE2d 766) (2020) (citation

The record shows that when Brown and Joyce testified at trial,

they consistently referred to each other as husband and wife. Joyce

also testified that at the time Downer was living on her property,

she and Brown were not “ceremonially married” but were “living

14 The trial court specifically noted that, based on the evidence and testimony presented, Downer could not have known that a marriage ceremony was a part of the plea negotiations. 36 together, which is kind of the same.” And Jamie testified that Brown

was “now married to [his] mother.” During his initial interview with

Agent Goza, Downer himself referred to Joyce as Brown’s wife.

Thus, Downer’s counsel had the opportunity to cross-examine Joyce

about the nature of her relationship with Brown but chose not to.15

See Morris v. State, 284 Ga. 1, 3 (2) (662 SE2d 110) (2008) (no Brady

violation where undisclosed evidence was consistent with other

evidence the State had already presented to the jury and was

therefore not outcome determinative). Moreover, the most damaging

portion of Joyce’s testimony for Downer was the statement that she

saw three men, including Downer, back a car up to the burn pit,

though she could not recall the date. But Downer’s participation in

the crimes was corroborated by witnesses other than Joyce, as well

as his own statements and conduct after the crimes.

On the other hand, the State’s primary witness against Downer

— Brown — was thoroughly cross-examined and impeached, such

that the trial court “did not give substantial weight to Brown’s

15 Downer’s counsel elected not to cross-examine Joyce at all.

37 testimony, as [the trial court] did not find him to be a very credible

witness.” And, as noted by the trial court, “Brown received a far

more valuable benefit in exchange for his testimony, which was

disclosed and used by the Defendant during the course of the trial to

illustrate Brown’s motivation for testifying.” Recognizing that

Brown had been thoroughly impeached, the trial court specifically

stated in its order that the disclosure of the wedding ceremony and

the use of it to further impeach Brown would not have changed the

court’s determination of Downer’s guilt. Thus, Downer cannot meet

his burden of showing the fourth prong — that the outcome of the

trial would have been different had the State properly disclosed

evidence of the wedding ceremony. See Hood v. State, 311 Ga. 855,

864 (1) (860 SE2d 432) (2021) (although full scope of witness’s

“possible incentives to cooperate with the State was not made known

to the jury, the jury was nonetheless aware there was reason to

regard his testimony with skepticism” and defendant was therefore

unable to establish the fourth Brady prong); United States v.

Tellechea, 478 F. App’x. 605, 608 (IV) (11th Cir. 2012) (“The mere

38 possibility that an item of undisclosed information might have

helped the defense or might have affected the outcome of the trial

does not establish ‘materiality’ in the constitutional sense.” (citation

and punctuation omitted)); United States v. Bowe, 426 F. App’x. 793,

799 (III) (B) (1) (11th Cir. 2011) (no Brady violation where the

alleged content of the undisclosed evidence would have offered some

probative value for impeachment purposes, but did not rise to the

level of materiality under Brady); United States v. Noriega, 117 F3d

1206, 1220 (IV) (A) (11th Cir. 1997) (“Because there is independent

corroborating evidence of the guilt of the defendants, there is no

reasonable probability that the result of the trial would have been

different had the undisclosed impeachment material been disclosed

prior to trial.” (citation and punctuation omitted; emphasis in

original)). Accordingly, this enumeration of error fails.

5. Downer maintains that the trial court erred in denying his

post-trial motion for DNA testing. We disagree.

OCGA § 5-5-41 (c) (3) provides that a defendant is entitled to

post-conviction DNA testing if he meets, in addition to other

39 procedural conditions not at issue here, each of the following

requirements:

(A) Evidence that potentially contains [DNA] was obtained in relation to the crime and subsequent indictment, which resulted in his or her conviction; (B) The evidence was not subjected to the requested DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner’s trial attorney prior to trial or because the technology for the testing was not available at the time of trial; (C) The identity of the perpetrator was, or should have been, a significant issue in the case; [and] (D) The requested DNA testing would raise a reasonable probability that the petitioner would have been acquitted if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the case.

See also De La Cruz v. State, 303 Ga. 24, 32-33 (7) (810 SE2d 84)

(2018) (defendant may be entitled to post-conviction DNA testing if

he meets all of the statutory requirements listed in OCGA § 5-5-41

(c) (3), (4), and (7)).

The record shows that four days before trial began, the State

disclosed a GBI lab report with the results of DNA testing on the

baseball bat recovered from the shed on Brown’s property. The

report, dated March 21, 2013, indicated that the sample taken from

40 the bat contained the DNA profile of two individuals, the victim and

an unknown person. Downer filed a post-trial motion for DNA

testing pursuant to OCGA § 5-5-41. At a hearing on the motion, Jami

Harman testified as an expert in DNA testing. She explained that

the GBI took four swabs from the wide end of the bat, that the

remaining swabs could still be tested, and that the GBI never

conducted any DNA testing on the handle end of the bat because the

test kits available at that time could not cut through the chemicals

used during their latent fingerprint testing. However, newer test

kits would enable an analyst to test the handle end of the bat for

DNA despite the presence of chemicals from the previously-

conducted fingerprint testing. Harman testified that newer testing

may also yield a more “discriminating result” regarding the identity

of the second DNA contributor on the wide end of the bat. Harman

acknowledged that testing would not be able to determine when or

how any particular DNA was deposited on the bat. The trial court

denied the motion, finding that Downer had failed to show a

reasonable probability that the DNA evidence would call into

41 question the court’s confidence in the verdict.

Because Downer could have been convicted of armed robbery

and felony murder predicated on burglary as a party to those crimes,

whether Downer actually used the bat to strike the fatal blows was

not required to prove those crimes. At most, the lack of Downer’s

DNA on the bat could have been used to impeach Brown’s testimony

that Downer had beaten Hill with the bat. And the trial court was

already aware that there was no physical evidence linking Downer

to the bat, but nonetheless concluded that the weight of evidence

was sufficient to find Downer guilty as a party to the crimes for

which he was convicted. Thus, even if post-trial DNA testing would

have proven that Downer’s DNA was not on the bat, there is not a

reasonable probability that the results would have led to Downer’s

acquittal. Accordingly, the trial court did not abuse its discretion in

denying Downer’s motion. See De La Cruz, 303 Ga. at 33 (7) (trial

court properly denied motion for post-trial DNA testing where the

trier of fact had already been informed at trial that there was no

physical evidence linking the defendant to the crime scene and

42 defendant was therefore unable to show a reasonable probability

that he would have been acquitted had the DNA results been

available at the time of trial); Crawford v. State, 278 Ga. 95, 99 (2)

(b) (597 SE2d 403) (2004) (affirming trial court’s denial of post-trial

DNA testing where hypothetical DNA testing results, even if

assumed valid, would not in reasonable probability have resulted in

the defendant’s acquittal).

Judgment affirmed. All the Justices concur.

Decided September 20, 2022.

Murder. Habersham Superior Court. Before Judge Smith.

Jerilyn L. Bell, Thea A. Delage, for appellant.

George R. Christian, District Attorney, J. Edward Staples,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Eric C. Peters, Assistant

Attorney General, for appellee.