307 Ga. 657 FINAL COPY
S19A1572. HARRIS v. THE STATE.
ELLINGTON, Justice.
A Cobb County jury found Ricardo Harris guilty of murder and
concealing the death of another in connection with the death of
Yvonne James.1 Harris contends that the trial court erred in
admitting his pre-trial statements into evidence and that trial
counsel was ineffective for allowing him to give an incriminating
custodial statement. For the reasons that follow, we affirm the
judgment of conviction.
1 On March 28, 2013, a Cobb County grand jury indicted Harris for malice murder, felony murder, aggravated battery, and concealing the death of another in connection with the January 1, 2013 death of James. Following a trial from June 22 to 26, 2015, the jury found Harris guilty on all counts. On July 24, 2015, the trial court sentenced Harris to life imprisonment for murder and to ten years consecutive imprisonment for concealing a death. The remaining counts were either merged or vacated by operation of law. On August 21, 2015, Harris filed a motion for a new trial through new counsel, who filed an amended motion and brief in support of the motion on December 21, 2018. The trial court held a hearing on the motion and denied it on February 6, 2019. Harris filed a notice of appeal on February 28, 2019. The appeal was docketed to the August 2019 term and submitted for decision on the briefs. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. James was a sex
worker. Ancil Neil advertised James’ services on social media sites
and acted as her agent. Neil and James had a routine for
communicating about clients: Neil procured the clients and then
informed James via text message when a client was on the way.
James texted Neil when a client arrived and when he was about to
leave. She would also text Neil if she needed his protection. On
December 27, 2012, Neil rented a room in James’ name for a week
at a hotel in Cobb County.
On December 31, Harris, who is deaf, sent text messages to
Neil, and the two negotiated a price for sex acts. Harris was not
informed that he was texting with Neil, as Neil pretended to be
James. Unbeknownst to Harris, Neil watched from his car in the
hotel parking lot as Harris arrived at the hotel just prior to 4:00 a.m.
on January 1, 2013. Neil sent Harris a text with James’ hotel room
number, then he informed James that Harris was approaching her
room. Shortly thereafter, James confirmed that Harris had arrived
2 and that he had brought her some brandy. While Harris was in
James’ room, Neil sat in his car where he had a “clear, unobserved
view” of the exterior of James’ room. At 4:40 a.m., Neil received a
text from James, stating that she was “getting dressed,” which
meant that Harris was about to leave. When Neil did not see Harris
leave the room as expected, he grew concerned. He texted James
several times during the following hour, but she did not respond.
According to Neil, Harris peered from behind the blinds of
James’ room at 5:40 a.m. Moments later, Harris walked from the
hotel room to his car, where he put something in his trunk. Harris
then walked to the hotel lobby. While in the lobby, Harris wrote
something on a piece of paper and handed it to the front desk clerk.
Neil went to the hotel room to find out what was going on. There, he
found James, submerged in a bathtub filled with red-tinged water.
She had a pillow over her head. As Neil pulled James from the tub
and tried to revive her, Harris re-entered the room. Neil could not
fully understand what Harris was saying, but thought he said: “I
sorry; accident; dead.” Neil ran to the front office and told the desk
3 clerk that someone had killed his girlfriend. While talking to the
clerk, Neil saw Harris driving away and pointed toward Harris’
white car. Time stamps on the hotel security video showed Neil at
the front desk at 5:55 a.m. Harris drove across the street, where he
asked a gas station employee to dial 911 while he waited for the
police to arrive. Neil went back to the hotel room, removed several
items from it, and left.
Responding officers found James’ body on the floor. They saw
wounds on her face and body. The officers noted damage to the hotel
room, including holes in the walls. Having been advised that a 911
caller was waiting at the gas station across the street, an officer
drove there and brought Harris to the hotel. When the officers
attempted to speak with Harris, Harris indicated that he was deaf.
Officer Figueroa took out his notepad and asked Harris if he could
read and write. Harris indicated that he could. Figueroa wrote
questions and asked Harris to write answers. Finding the process
time-consuming, Figueroa got a laptop computer from his patrol car
and asked Harris to type out the answers to his questions.
4 Figueroa testified that, at this point, he believed Harris was a
witness; therefore, he did not advise him of his rights. In response
to the officer’s questions, Harris typed the following account. He
went to see the victim for sex. As soon as he entered the room, he
found her dead, lying in the tub with a pillow over her face. He
walked to the hotel’s front desk and asked them to call police, but
they refused. He decided he should drive somewhere to have
someone else call the police. As he returned to his car, he saw a man
seated in a nearby car. Harris asked the man for help. The man got
out of his car, went to the hotel room, and pulled the victim out of
the bathtub. But then the man stole the victim’s phone and left.
Thereafter Harris drove across the street to the gas station and
asked an employee to call the police. After giving this typed account,
Harris went with an officer to police headquarters to give a more
formal statement.
Shortly after Harris left, Detective Mark Erion arrived at the
hotel and spoke with Figueroa. Erion reviewed the handwritten and
typed statements that Figueroa had taken down in his initial contact
5 with Harris. Even though it was New Year’s Day and interpreters
were difficult to find, Erion enlisted the services of sign language
interpreter Barbara Bell, who also worked as a dispatcher for the
Southern Polytechnic Police Department. Bell met Erion at the
police station. With Bell’s assistance, the detective informed Harris
of his Miranda2 rights. Erion testified that, although he read Harris
his rights, Harris was not under arrest and was being treated as a
witness. Harris also read and signed a waiver-of-rights form.
Through the interpreter, Erion told Harris that he was following up
on Harris’ 911 call and wanted to know what he had seen. Harris
repeated what he had told Figueroa and reduced his statement to
writing.
During a break in the interview, Erion had a chance to review
the hotel surveillance video recording. He noticed that the time
stamps on the recording did not match Harris’ account of events. The
recording showed Harris arriving at James’ room at 4:03 a.m., but
2 See Miranda v. Arizona, 384 U. S. 436, 444 (86 SCt 1602, 16 LE2d 694)
(1966). 6 not leaving the room to go to the lobby until 5:37 a.m. According to
Erion, when he confronted Harris with that information, Harris
seemed surprised and confused. At that point, Erion stopped the
interview and arrested Harris for concealing the death of another.
When Harris was arrested, he was wearing a beaded necklace.
Officers found a bead on the hotel room floor similar to Harris’
beaded jewelry. James wore no beaded jewelry. After obtaining
search warrants for Harris’ home and car, officers found a bottle of
brandy in the trunk of Harris’ car. The search of Harris’ residence
yielded several necklaces with beads. The officers also recovered a
cell phone image from Harris’ phone that had been taken the night
before the murder. It showed him wearing a beaded bracelet.
According to the Cobb County medical examiner, James had
injuries consistent with having been struck with a blunt object or
fist. She had been struck so hard that a small bead with a wrinkled,
cracked finish similar to Harris’ beaded necklace had become
embedded in her face. The medical examiner opined that the injuries
to the victim’s body were akin to her being shoved into or through a
7 wall. He determined that the cause of death was a homicide due to
blunt force head trauma associated with probable strangulation and
drowning.
On January 14, 2013, in the presence of his retained attorney,
Harris informed Erion through interpreter Bell that he wanted to
make a revised statement. Harris gave Erion a handwritten
statement concerning James’ death. Erion did not question Harris
about the revised statement; rather, the interview was postponed
until the following day so that arrangements could be made to have
Harris’ own interpreter present. On January 15, Harris, in the
presence of his attorney and with the assistance of his chosen
interpreter, continued the interview. After giving Harris Miranda
warnings, Erion questioned Harris.
In his January 15 interview and in the handwritten statement
he had given Erion the previous day, Harris claimed that James had
been alive when he arrived at the hotel room, but that she had
apparently suffered a head injury and was upset. He stayed with
James for a while and watched television while she slept. When she
8 woke, she was dizzy. She went to the bathroom, where she fell into
the tub. The fall rendered James unconscious, so Harris put a pillow
under her head and went to the hotel lobby to get help. When he
returned to the room, he met Neil, who followed him in and pulled a
gun on him. Neil dragged James out of the tub, checked on her, and
then took her cell phone. Neil threatened to kill Harris if he told
anybody what he had seen. After Neil left, Harris went to the gas
station to call the police.
In addition to this evidence, the State also introduced prior acts
evidence through the testimony of three women with whom Harris
had been intimate. They each testified that Harris had physically
abused them, including by strangling and punching them and by
slamming them into walls.
1. Harris does not dispute the legal sufficiency of the evidence
supporting his convictions. Nevertheless, as is this Court’s practice
in murder cases, we have reviewed the record and conclude that,
when viewed in the light most favorable to the verdicts, the evidence
presented at trial and summarized above was sufficient to authorize
9 a rational jury to find Harris guilty beyond a reasonable doubt of the
crimes of which he was convicted. See Jackson v. Virginia, 443 U. S.
307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See also Vega
v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009) (“It was for the
jury to determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.” (citation and
punctuation omitted)).
2. Harris contends that the trial court erred by allowing into
evidence three of his four pre-trial statements, each of which is
discussed in detail in subdivision 2 (b) below. He argues, inter alia,
that the statements were not freely and voluntarily made and that
the State failed to comply with the statutory requirements of OCGA
§ 24-6-653, concerning the procedure for interviewing people who
are hearing impaired. For the following reasons, we apply the plain
error standard of review and find no plain error in the admission of
Harris’ pre-trial statements.
(a) Preservation of error. In his appellate brief, Harris contends
that his trial counsel and the prosecutor agreed that any claim of
10 error with respect to the admission of his statements would be
preserved for appellate review. But because the record shows that
any agreement between the prosecutor and trial counsel was
insufficient to preserve for appellate review Harris’ claims of error,
all of which he raises for the first time on appeal, we review his
claims for plain error only.
The record shows that Harris’ trial counsel did not file a motion
to suppress Harris’ pre-trial statements; rather, the trial court
scheduled a motions hearing and, during that hearing, the State
informed the Court that “two motions [are] scheduled for today . . .
and one of them is [for] a Jackson-Denno [hearing].” The State
further informed the trial court that, “rather than doing an
evidentiary hearing, what [defense counsel and the State have
agreed] is that [the State] will lay the foundation by tendering some
exhibits.” Defense counsel voiced no objection to proceeding in this
manner. During the State’s proffer, defense counsel posed no
objection to the admission of Harris’ pre-trial statements and signed
waiver-of-rights forms; moreover, he made no argument before the
11 trial court as to any legal basis for excluding the statements at trial.
Instead, counsel announced that he would “remain mute.”
After the State made its lengthy proffer, the prosecutor
concluded: “I think you can see that there really is no . . . issue
regarding Miranda, custodial statements versus non-custodial
statements or voluntariness. I understand though that defense
counsel doesn’t want to waive anything, and I’m not suggesting they
should.” Thereafter, Harris’ attorney did not contest the State’s
assertion that there was “no issue” as to the statements’
voluntariness or admissibility, he did not rebut the State’s proffer or
make any argument, and he did not introduce any evidence. Instead,
he admitted that the State’s recitation of facts was accurate and that
he did not disagree with the State’s position. However, he asserted
“I don’t want to waive any issues relative to Jackson-Denno.” Thus,
the trial court’s ruling was made entirely based on the State’s
proffer.3 Then, at trial, defense counsel posed no objection to the
3 The trial court found that Harris was “not in custody” when he made
his handwritten and typed statements to Officer Figueroa. After reviewing the
12 statements as they were tendered into evidence. Finally, at the
hearing on Harris’ motion for a new trial, defense counsel testified
that he was aware of no legal or factual argument that he could have
advanced in support of a motion to suppress Harris’ statements.
After a definitive ruling on the admissibility of a defendant’s
pre-trial statements following a Jackson-Denno hearing, a
defendant is not required to renew his objections to the admission of
those statements at trial to preserve for appellate review the
objections previously made. OCGA § 24-1-103 (a) (1) provides:
Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and: . . . In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context[.]
evidence, the court concluded: After considering the totality of the circumstances, this Court finds by a preponderance of the evidence that Defendant was advised of and understood each of Defendant’s Miranda rights [where applicable]; that after being advised of and understanding his Miranda rights, Defendant voluntarily waived his Miranda rights; and that after voluntarily waiving his Miranda rights, Defendant gave a statement to the police freely and voluntarily, without the slightest hope of benefit or fear of injury. Therefore, Defendant’s statements given to the police on January 1, 2015, January 14, 2015, and January 15, 2015 shall be admissible during the trial of this case. 13 But when, as in this case, the trial court has neither been briefed on
nor apprised of any specific objection to the admission of the
defendant’s statements, then the trial court cannot have made a
definitive ruling with respect to the unmade objection. Moreover, the
court’s ruling did not relieve Harris of his obligation to object to the
admission of his statements at trial. Only a definitive ruling on a
specific objection relieves a defendant of his obligation to renew his
objection when the evidence is later admitted. Id. See also Anthony
v. State, 302 Ga. 546, 549 (II) (807 SE2d 891) (2017) (“In order to
preserve an objection for [ordinary] appellate review, the specific
ground of the objection must be made at the time the challenged
evidence is offered.”). In this case, the record shows that Harris’
counsel made no objection whatsoever to the admission of Harris’
pre-trial statements either in a written motion, at the motion
hearing, or at trial. The fact that counsel and the prosecutor
purportedly agreed that Harris was not waiving any objection to the
admission of the statements is of no consequence under these
14 circumstances. OCGA § 24-1-103 (a) (1) requires, at a minimum, “a
timely objection or motion to strike” to preserve appellate review of
a ruling on the admission of evidence, and counsel may not avoid
this statutory requirement through an agreement or stipulation. See
Heavey v. Security Mgmt. Co., 129 Ga. App. 83, 84 (198 SE2d 694)
(1973) (“Parties may stipulate anything factual, and may sometimes
waive the benefit of statutory or constitutional provisions, but they
cannot by stipulation fix or change the law.”) (citations omitted)).
Consequently, because Harris did not make a specific objection at
trial to the admission of his statements on the grounds now asserted
in his appeal, we review these claims only for plain error.4 See OCGA
4 There are four prongs in the test for plain error.
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
15 § 24-1-103 (d). See also Kemp v. State, 303 Ga. 385, 397-398 (810
SE2d 515) (2018) (applying plain error standard of review to the
appellant’s unpreserved Confrontation Clause claim); Lupoe v.
State, 300 Ga. 233, 243 (794 SE2d 67) (2016) (applying plain error
review to the appellant’s unpreserved hearsay claim).
(b) Harris’ pre-trial statements. Harris challenges the court’s
ruling with respect to the admission of three of his four pre-trial
statements: (i) the written statement given at the scene of the crime
on January 1, 2013; (ii) the statement made at the police station
with the assistance of interpreter Bell, also on January 1; and (iii)
the handwritten custodial statement made on January 14, with the
assistance of interpreter Bell and Harris’ retained counsel.5 We
consider them each in turn.
(i) Harris contends that the written statement given to Officer
(Citations, punctuation and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). 5 Harris does not contend that the trial court erred in admitting his
January 15 statements to Detective Erion. Rather, he contends that his trial counsel was ineffective for allowing him to be interviewed on this occasion. We address that claim of error in Division 3, below. 16 Figueroa at the crime scene should have been suppressed on the
ground that it was not freely and voluntarily made because Harris
was in custody at the time and he was not given the benefit of
Miranda warnings. Harris also argues that, because the officer was
required by OCGA § 24-6-653 to question him through a qualified
interpreter, which he failed to do, the trial court was required to
suppress the statement.
The trial court determined that Harris was not in custody
during his interview with Figueroa and that, therefore, Miranda
warnings were not required. See Freeman v. State, 295 Ga. 820, 822-
823 (764 SE2d 390) (2014) (“Miranda warnings are required when a
person is (1) formally arrested or (2) restrained to the degree
associated with a formal arrest. Unless a reasonable person in the
suspect’s situation would perceive that he was in custody, Miranda
warnings are not necessary.” (citations and punctuation omitted)).
Because the record does not contain any evidence that would
support a finding that Harris had been arrested or that a reasonable
person in Harris’ position would have perceived that he was in
17 custody during his interaction with Figueroa, the trial court did not
err in determining that Miranda warnings were not required. See
id.
Further, OCGA § 24-6-653 did not require the trial court to
suppress Harris’ statement under these circumstances.6 A law
6 OCGA § 24-6-653 provides:
(a) An arresting law enforcement agency shall provide a qualified interpreter to any hearing impaired person whenever a hearing impaired person is arrested for allegedly violating any criminal law or ordinance of this state or any political subdivision thereof. (b) (1) Except as provided in paragraph (2) of this subsection, no interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken upon a hearing impaired person unless a qualified interpreter has been provided or the law enforcement agency has taken such other steps as may be reasonable to accommodate such person’s disability. No answer, statement, admission, or other evidence acquired through the interrogation of a hearing impaired person shall be admissible in any criminal or quasi-criminal proceedings unless such was knowingly and voluntarily given. No hearing impaired person who has been taken into custody and who is otherwise eligible for release shall be detained because of the unavailability of a qualified interpreter. (2) If a qualified interpreter is not available, an arresting officer may interrogate or take a statement from such person, provided that if the hearing impaired person cannot hear spoken words with a hearing aid or other sound amplification device, such interrogation and answers thereto shall be in writing and shall be preserved and turned over to the court in the event such person is tried for the alleged
18 enforcement agency is not required to provide a hearing impaired
person with a qualified interpreter until the hearing impaired
person “is arrested.” See OCGA § 24-6-653 (a). The record shows that
Harris had not been formally arrested when he communicated with
Figueroa; consequently, at that moment, there was no “arresting law
enforcement agency” that was required to provide Harris with a
“qualified interpreter”7 under OCGA § 24-6-653 (a) (emphasis
supplied). And assuming that OCGA § 24-6-653 (b) applied to
Harris, though he had neither been formally arrested nor found by
the trial court to be in custody, the record also shows that Figueroa
complied with paragraph (b) (1) by reasonably accommodating
Harris’ disability by communicating with him in writing, as it is
undisputed that Harris can read and write the English language.
The record supports the trial court’s finding that Harris’ statement
to Officer Figueroa was freely and voluntarily made. Consequently,
offense. 7 OCGA § 24-6-651 (6) provides: “‘Qualified interpreter’ means any person certified as an interpreter for hearing impaired persons by the Registry of Interpreters for the Deaf or a court qualified interpreter.” 19 Harris has shown no error, much less plain error, in the admission
of this statement.
(ii) When Harris made his January 1 statement at police
headquarters, he had not yet been formally arrested. Prior to giving
his statement, Harris read and signed a waiver-of-rights form.
Detective Erion, through interpreter Bell, also read Harris his
Miranda warnings. Harris contends that he could not have
knowingly and intelligently waived his rights under these
circumstances because Bell was not a qualified sign language
interpreter and that she essentially “spoke a different language.”8
Harris argues that using Bell as an interpreter violated OCGA §§
24-6-653 (b) (1) and 24-6-656.9 For these reasons, he argues that
8 The record contains no evidence establishing Bell’s professional qualifications as a sign language interpreter. During the Jackson-Denno hearing, the prosecutor stated that Bell was “capable of signing, though much of her signing is by spelling out words. . . . [F]or the record, she was capable of communicating with the defendant, but a lot of it was slow because she was having to spell things out.” The video recordings of the interviews in which Bell participated show her signing with Harris, and the trial court could draw inferences from those interviews about whether they were able to effectively communicate with each other. 9 OCGA § 24-6-656 provides:
Whenever a hearing impaired person shall be authorized to
20 this statement should have been suppressed.
Again, because Harris had not been formally arrested when he
gave this statement, the law enforcement agency was not required
to provide him with a qualified interpreter pursuant to OCGA § 24-
6-653 (a). The record shows that Detective Erion nevertheless
complied with OCGA § 24-6-653 (b) by reasonably accommodating
Harris’ disability by providing him with Bell’s sign language
assistance and by having Harris read his waiver-of-rights form and
write down his statement.
Assuming, without deciding, that Harris’ participation in the
interview occurred under circumstances that were the equivalent of
an arrest, such as during a custodial detention that required the
giving of Miranda warnings, the record shows that Harris was
be provided a qualified interpreter, the agency or law enforcement agency shall determine whether the qualified interpreter so provided is able to communicate accurately with and translate information to and from the hearing impaired person. If it is determined that the qualified interpreter cannot perform these functions, the agency or law enforcement agency shall obtain the services of another qualified interpreter or shall appoint an intermediary interpreter to assist the qualified interpreter in communicating with the hearing impaired person. 21 informed of his Miranda rights before he was questioned. The video
recording of this interview shows that Erion read the entire
Miranda waiver-of-rights form to Harris and that Bell interpreted
it in sign language. Harris nodded affirmatively as Bell signed to
him, indicating that he understood. According to Bell, Harris
wanted to communicate what he had seen. Harris also read and
signed a waiver-of-rights form. During the course of the video-
recorded interview, there is no indication that Harris could not read,
that he did not understand the waiver-of-rights form, that he did not
understand what he was being asked, or that he wished to stop the
interview. The video recording supports the trial court’s finding that
Harris’ statement to Detective Erion was made freely and
voluntarily. Consequently, Harris has shown no error, much less
plain error, in the admission of this statement.
(iii) When Harris and his defense counsel met with Detective
Erion on January 14, Harris had been arrested and was in custody.
Harris contends that Bell was not qualified to participate in this
meeting and that her efforts to facilitate communications between
22 him, his attorney, and Detective Erion violated OCGA §§ 24-6-653
(b) (1) and 24-6-656, rendering his written statement involuntary
and inadmissible.
The video recording of this interview shows that Harris
initiated the interview through, and in the presence of, his defense
counsel. Defense counsel informed Detective Erion that Harris
wanted to explain why he had not been completely truthful with law
enforcement previously. Harris was again advised of his Miranda
rights through interpreter Bell, and Harris read and signed a
waiver-of-rights form as his attorney watched. Harris even
verbalized the word “yes” when Erion asked him if he wanted to talk
to the police. Before receiving Harris’ account through Bell, Erion
inquired in writing whether Harris could understand Bell, to which
Harris responded in writing “[s]omewhat[,] yes[,] mostly I don’t use[
] spelling words since my language is different from . . . National
Deaf . . . Inst[itute].” Erion then asked Harris: “If you have any
trouble, let me know?” Harris responded: “Will do.”
Defense counsel, after conferring with Harris through the
23 interpreter, told Erion that his client had agreed to “take a stab at
it,” meaning giving his statement through Bell, and that if Harris
had any trouble being understood, then counsel would intervene.
Counsel indicated that he knew what Harris wanted to say.
Thereafter, Harris began giving his account of events in sign
language, and Bell translated the signs into spoken English. Erion,
however, had a hard time following Harris because, as Bell
translated Harris’ signs into words, Harris also attempted to speak,
which resulted in unintelligible cross-talk. After the detective
complained that he was “not getting this,” Harris’ counsel
intervened. Counsel pushed a pad of paper and a pen across the
table and gestured for Harris to write down what he wanted the
detective to know. Erion did not ask Harris any questions about the
crime. For almost 30 minutes, Harris wrote out his statement. While
Harris wrote, defense counsel made a call on his cell phone to
arrange for Harris’ interpreter to accompany him to the police
station the following day and to help Harris answer any questions
that Erion might have about the written statement.
24 Under these circumstances, Bell’s involvement in the January
14 interview was harmless. First, it appears that Harris waived the
requirements imposed by OCGA §§ 24-6-653 and 24-6-656 when he
and his counsel requested this follow-up meeting and elected to
“take a stab” at the interview with Bell interpreting.10 Further, the
written statement that Harris ultimately gave was not translated
by Bell. It is clear from the video recording that Harris, in
consultation with his attorney, had already made the decision to
give the police a revised statement before the interview began.
Harris read and signed a waiver-of-rights form in the presence of his
attorney. Both Harris and his attorney clearly stated that Harris
wanted to give the statement that he gave, and it is plain from the
video recording that the statement was freely and voluntarily made.
Consequently, Harris has shown no error, much less plain error, in
the admission of this statement.
3. Harris contends that his trial counsel provided him with
10 “If there is no constitutional, statutory, or public policy prohibition
against waiver, an accused may validly waive any right.” (Citation omitted.) Thomas v. State, 260 Ga. 262, 263 (392 SE2d 520) (1990). 25 ineffective assistance when he allowed him “to waive his Fifth
Amendment right to remain silent and provide two separate
interviews to police after being arrested.” He argues that his
attorney should not have allowed him to give a written statement to
the police on January 14 or to follow up with the police on January
15 through his own interpreter. He argues that if his attorney had
been accompanied by Harris’ own interpreter on January 14, instead
of Bell, he would have been better able to advise him not to sign the
Miranda waiver form or to give his statements, which prejudiced
him because the prosecution used the statements to show that
Harris’ account of events evolved to conform with the evidence as it
was revealed to him.
To prevail on his claim of ineffective assistance of trial counsel,
Harris must prove both that counsel’s performance was
professionally deficient and that he was prejudiced by this deficient
performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984); Terry v. State, 284 Ga. 119, 120 (2)
(663 SE2d 704) (2008). To prove deficient performance, Harris must
26 show that his counsel performed 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). To prove prejudice, Harris “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U. S. at 694 (III) (B). “This burden is a
heavy one.” (Citation omitted.) Young v. State, 305 Ga. 92, 97 (5)
(823 SE2d 774) (2019). And if Harris fails to show either deficiency
or prejudice, this Court need not examine the other prong of the
Strickland test. See Palmer v. State, 303 Ga. 810, 816 (IV) (814 SE2d
718) (2018).
At the hearing on Harris’ motion for a new trial, defense
counsel testified that he was retained by Harris’ parents
immediately after the arrest. The parents also retained a sign
language interpreter to meet with Harris and his counsel on several
occasions at the jail. During their visits, counsel advised Harris
27 through the interpreter not to speak with law enforcement or to
make any written statements. The attorney “battled” with Harris
and his parents over this point. Harris, however, insisted that he
had done nothing wrong and that he wanted to clear up some things
about which he had previously lied. Counsel “exhaustively”
explained the risks of giving such a statement and repeatedly asked
Harris to remain silent; nevertheless, Harris “insisted” on giving a
statement. Harris committed his statement to paper during the
January 14 interview because Detective Erion was having some
difficulty following Harris, who was verbalizing his statement as
Bell translated. When Harris returned on the following day with his
own interpreter, he essentially confirmed what was in his written
statement. The version of events recounted by Harris in his January
14 and 15 statements came to be the theory of defense at trial.
The record shows that counsel advised Harris not to give a
custodial statement. Harris, however, rejected counsel’s advice to
remain silent and chose to give a custodial statement after being
fully advised of the risks of doing so by counsel through his chosen
28 sign language interpreter prior to the January 14 interview.
Consequently, Harris alone bears legal responsibility for any
prejudice to his defense that resulted as a consequence of his
custodial statement. Cf. United States v. Teague, 953 F2d 1525,
1532-1533 (11th Cir. 1992) (“A criminal defendant cannot be
compelled to remain silent by defense counsel. . . . It is important to
remember that while defense counsel serves as an advocate for the
client, it is the client who is the master of his or her own defense.”
(citation omitted)). See also People v Claudio, 85 AD2d 245, 258 (III)
(447 NYS2d 972) (1982) (“If a suspect insists on confessing, a defense
attorney is not incompetent because he fails to stop him. The
attorney should, of course, advise his client of the consequences, and
take measures to limit his client’s exposure, if possible.”).
Judgment affirmed. All the Justices concur.
29 DECIDED JANUARY 13, 2020. Murder. Cobb Superior Court. Before Judge Flournoy. The Merchant Law Firm, John B. Merchant III, Ashleigh B. Merchant, for appellant. D. Victor Reynolds, District Attorney, Jesse D. Evans, John R. Edwards, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Michael A. Oldham, Assistant Attorney General, for appellee.