318 Ga. 593 FINAL COPY
S24A0148. MADERA v. THE STATE.
BETHEL, Justice.
Francisco Javier Madera was convicted of the malice murder of
Juan Carlos Zambrano.1 On appeal, Madera raises five claims of
error: (1) the trial court erred by denying his motion for new trial on
the general grounds; (2) the trial court erred by admitting video
footage of the injured Zambrano; (3) the trial court erred by
admitting evidence pursuant to OCGA § 24-8-803 (5); (4) trial
counsel was ineffective in two respects; and (5) the cumulative effect
of the trial court’s errors and counsel’s deficient performance
1 The crimes occurred on October 13, 2017. In January 2018, a Cobb
County grand jury indicted Madera for malice murder, felony murder, and aggravated assault. Following a September 2019 jury trial, Madera was found guilty of all counts. The trial court sentenced Madera to serve life in prison for malice murder; the felony murder count was vacated by operation of law, and the aggravated assault count merged for sentencing. Madera filed a timely motion for new trial, which he amended through new counsel. Following a hearing, the trial court denied the motion, as amended, on August 2, 2023. Madera thereafter filed a timely notice of appeal, and the case was docketed to this Court’s term commencing in December 2023 and submitted for a decision on the briefs. requires a new trial. For the reasons that follow, we affirm.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed as follows. On the night of
October 13, 2017, Madera, Zambrano, and others attended a party
at the Cobb County home of Elma Escobar. While Madera and
Zambrano were dancing with the same woman, the two began
arguing, and, later in the evening, they physically fought each other.
Several partygoers separated Madera and Zambrano, and Escobar
asked Madera to leave.
Escobar walked Madera to his vehicle, and Madera began to
leave. As Escobar was walking back to the house, however, she
heard Madera “unlocking” his firearm and saw that he had stopped
his vehicle in the road and had exited the vehicle. Though Escobar
grabbed Madera and tried to calm him, he pointed his gun at
Zambrano and fired. Witnesses testified that, immediately before
the shooting, Zambrano was hugging another partygoer, and three
witnesses testified that Zambrano did not have anything in his
hands when he was shot and did not have a gun in his possession
2 that night. Escobar heard one gunshot followed by two more and
then saw Zambrano clutching his abdomen. Zambrano fell to the
ground after being shot. Edwin Santos Saez, another partygoer,
testified that, after Zambrano fell to the ground, Madera shot him
again. Another partygoer heard Madera direct two slurs at
Zambrano during the shooting. After shooting Zambrano, Madera
fled and was arrested two days later at a hotel in Little Rock,
Arkansas.
Escobar called an ambulance and the police, but Zambrano
asked to be driven to the hospital. Zambrano was placed in Saez’s
vehicle, and en route to the hospital, Saez crossed paths with and
flagged down officers responding to Escobar’s earlier call. Officers
found the unconscious Zambrano in the front passenger seat; he had
gunshot wounds to the left side of his abdomen and the upper area
of his back. The officers applied pressure to Zambrano’s wounds
while waiting for emergency medical services to arrive, and their
actions were captured by their body cameras. Zambrano was
transported to the hospital, where he died as a result of his wounds
3 the following day.
At trial, Madera testified that he acted in self-defense after
seeing a snub-nosed revolver in Zambrano’s right hand. The State,
however, presented evidence showing that no weapons were found
on Zambrano’s person or during a search of Saez’s vehicle and that
no guns or ammunition were found during a search of Escobar’s
home the day after the shooting.
On appeal, Madera first argues that the trial court should have
granted him a new trial on the “general grounds” because, he says,
some of the evidence against him was conflicting. See OCGA §§ 5-5-
20 (authorizing grant of new trial if the trial judge concludes that
the jury’s verdict is “contrary to evidence and the principles of justice
and equity”) and 5-5-21 (authorizing grant of new trial if the trial
judge concludes that the jury’s verdict is “decidedly and strongly
against the weight of the evidence”). The general grounds require a
trial court “to exercise a broad discretion to sit as a ‘thirteenth juror’”
and “consider some of the things that he cannot when assessing the
legal sufficiency of the evidence, including any conflicts in the
4 evidence, the credibility of witnesses, and the weight of the
evidence.” Hinton v. State, 312 Ga. 258, 262 (1) (c) (862 SE2d 320)
(2021) (citation and punctuation omitted). “We review whether the
trial court exercised its discretion as the thirteenth juror, but the
decision to grant a new trial on the general grounds is vested solely
in the trial court and not subject to our review.” Weems v. State, 318
Ga. 98, 102-103 (3) (897 SE2d 368) (2024). Here, in its order denying
Madera’s motion for new trial, the trial court, after stating that it
independently reviewed the evidence and considered the credibility
of witnesses, expressly rejected Madera’s general grounds claim.
Thus, the trial court’s order shows that the court properly exercised
its discretion under OCGA §§ 5-5-20 and 5-5-21, and Madera’s
argument “is otherwise not subject to review by this Court.”2 See
2 Madera does not separately argue that the evidence was insufficient to
support his conviction as a matter of constitutional due process under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). In previous appeals in which an appellant raised a general-grounds claim, we have often reviewed the sufficiency of the evidence as a matter of constitutional due process, though many of us have questioned the soundness of that approach. See King v. State, 316 Ga. 611, 616 (2) n.8 (889 SE2d 851) (2023). Like in King, however, we need not determine the propriety of that approach in this case because the evidence against Madera was constitutionally sufficient to affirm his conviction. 5 Weems, 318 Ga. at 103 (3).
2. Madera next challenges the admission of a video and audio
recording from a police officer’s body camera which showed
emergency responders rendering aid to the wounded Zambrano in
Saez’s vehicle. Specifically, Madera asserts for the first time on
appeal that the admission of an “excessive number of photographic
exhibits” at trial, including autopsy photographs, rendered the body
camera footage cumulative and, thus, “unfairly prejudicial.”
Because Madera did not object on this basis at trial, we review this
claim only for plain error.3 See Gates v. State, 298 Ga. 324, 327 (3)
(781 SE2d 772) (2016); OCGA § 24-1-103 (a), (d). To establish plain
3 In a pretrial motion in limine, Madera sought to have the footage excluded on the basis that it had “no relevance to any matter in dispute.” Noting that the footage showed Zambrano “injured, [lying] down in a car, and moaning and writhing in pain,” Madera argued that the footage would “no doubt be shocking to a jury” and that, as a result, “its prejudicial effect substantially outweighs any probative value that it may have.” But the motion in limine did not expressly challenge the footage as cumulative and Madera did not lodge a separate contemporaneous objection on the related basis he now argues on appeal, so our review is limited to plain error. See Washington v. State, 312 Ga. 495, 500 (2) (b) n.8 (863 SE2d 109) (2021); Williams v. Harvey, 311 Ga. 439, 452 (2) (858 SE2d 479) (2021) (“Although a party does not waive an error by failing to object to admission of evidence after a motion in limine is denied, this rule cannot be invoked to preserve a different, if perhaps related, error.” (citation and punctuation omitted)). 6 error, Madera bears the burden of demonstrating that the alleged
error “was not affirmatively waived”; that it was “clear and not open
to reasonable dispute”; that it “affected his substantial rights”; and
that it “seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” Jones v. State, 317 Ga. 466, 473 (2) (893
SE2d 741) (2023) (citations and punctuation omitted). And where an
appellant fails to establish one element of the plain error test, we
need not consider the others. See id.
Madera argues only that the footage at issue should have been
excluded as cumulative of other exhibits admitted at trial,
specifically autopsy photographs. It is well settled, however, that the
erroneous admission of evidence that is merely cumulative of other
properly admitted evidence is generally harmless, particularly
where the evidence of the defendant’s guilt is strong. See, e.g., Allen
v. State, 310 Ga. 411, 417 (3) (851 SE2d 541) (2020); Smith v. State,
307 Ga. 106, 115 (5) (834 SE2d 750) (2019). And here, Madera does
not argue that the autopsy photographs were improperly admitted,
and the evidence of his guilt, which included the testimony of
7 multiple eyewitnesses who rebutted his claim of self-defense, was
strong. Thus, even assuming that it was clear error to admit the
footage showing the injured Zambrano, we conclude that Madera
“cannot establish that the error affected his substantial rights
because he has not made an affirmative showing that the error
probably affected the outcome of his trial.” Allen, 310 Ga. at 416 (3)
(rejecting plain error claim where evidence at issue “was cumulative
of other unchallenged evidence” and evidence of defendant’s guilt
was strong). See also Jones, 317 Ga. at 473 (2) (appellant failed to
show how alleged erroneous admission of evidence affected his
substantial rights where the evidence “was cumulative of other
properly admitted evidence at trial” and there was “substantial
evidence of [appellant’s] guilt”); Perryman-Henderson v. State, 316
Ga. 626, 632-633 (3) (889 SE2d 814) (2023) (appellant failed to show
how alleged error affected his substantial rights in light of the
evidence against him, including eyewitness testimony that was not
consistent with his version of events). Accordingly, this plain error
claim fails.
8 3. Madera next contends that the State failed to lay a proper
foundation for admitting as a recorded recollection a witness’s
videotaped statement to investigators, see OCGA § 24-8-803 (5)
(“Rule 803 (5)”), and that the trial court therefore erred by admitting
it. Because Madera did not object on this ground at trial,4 we review
this claim for plain error. See Varner v. State, 306 Ga. 726, 730 (2)
(b) (832 SE2d 792) (2019).
While testifying on direct examination, Saez initially was
unable to recall whether Madera said anything to Zambrano as
Madera fired his weapon, though Saez had given a videotaped
statement to police shortly after the shooting during which he
recounted that Zambrano “was on the ground, and [Madera] walked
up to him and said what’s up now, or what’s up [and] shot him
again.” Pursuant to Rule 803 (5),5 the State then moved to admit a
4 At trial, Madera objected to the admission of this evidence only on Confrontation Clause grounds. 5 Rule 803 (5) states that the following is not excluded by the general rule
against hearsay evidence: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection
9 portion of Saez’s videotaped statement as a past recollection
recorded. Outside the jury’s presence, Saez testified that he recalled
giving the statement, that he watched the recording of the
statement, that his memory was “a bit” better when he made the
statement than it was at trial, and that he was truthful when he
made the statement. The trial court found a sufficient foundation to
admit Saez’s videotaped statement, Madera raised no further
objection, and a brief portion of Saez’s statement was played in the
jury’s presence.
Pointing to Saez’s response that his memory was “a bit” better
at the time of the interview, Madera now complains that Saez’s
testimony was insufficient to lay a foundation for the admission of
the videotaped statement under Rule 803 (5). As Madera reads it,
our decision in Pierce v. State, 302 Ga. 389, 391-393 (1) (a) (807 SE2d
to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but shall not itself be received as an exhibit unless offered by an adverse party[.] 10 425) (2017) — the sole case on which Madera relies — held that the
“vital element” for laying a foundation under Rule 803 (5) is an
“absolute affirmative” statement that the witness’s memory was
better when the recorded recollection was made. But Pierce imposes
no such requirement. Instead, Pierce makes clear that the pertinent
analysis is whether the witness’s testimony “was sufficient to
establish under [Rule 803 (5)] that the [recorded recollection]
concerned a matter about which [the witness] once had knowledge
but at trial had insufficient recollection, which was made or adopted
when the matter was fresh in his memory, and which correctly
reflected his knowledge.” Id. at 392-393 (1) (a). As Madera points to
no precedent imposing a requirement that the witness testify in the
“absolute affirmative” that his memory was better when the
recorded recollection was made and we are aware of none, he has
failed to show that the trial court committed clear and obvious error,
and thus no plain error, in admitting the brief portion of Saez’s
interview pursuant to Rule 803 (5). See Clay v. State, 309 Ga. 593,
597 (4) (a) (847 SE2d 530) (2020) (“[A]n error cannot be plain where
11 there is no controlling authority on point.” (citation and punctuation
omitted)).
4. Madera argues that his trial counsel was constitutionally
ineffective in two ways. To succeed on these claims, Madera must
show both that trial counsel’s performance was deficient and that he
suffered prejudice as a result. See Strickland v. Washington, 466
U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To establish
deficiency, Madera “must demonstrate that his attorney performed
at trial in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.”
Pope v. State, 311 Ga. 557, 559 (858 SE2d 492) (2021) (citation and
punctuation omitted). “[D]ecisions regarding trial tactics and
strategy may form the basis for an ineffectiveness claim only if they
were so patently unreasonable that no competent attorney would
have followed such a course.” Davis v. State, 299 Ga. 180, 183 (2)
(787 SE2d 221) (2016) (citation and punctuation omitted). To
establish prejudice, Madera must show a reasonable probability
that, but for counsel’s deficient performance, the result at trial
12 would have been different. See Strickland, 466 U. S. at 694 (III) (B).
“We need not address both components of the inquiry if the
defendant makes an insufficient showing on one.” Suggs v. State,
310 Ga. 762, 768 (7) (854 SE2d 674) (2021). “[A] trial court’s factual
findings made in the course of deciding an ineffective assistance of
counsel claim will be affirmed by the reviewing court unless clearly
erroneous,” while “[c]onclusions of law based on those facts are
reviewed de novo.” Taylor v. State, 315 Ga. 630, 647 (5) (b) (884 SE2d
346) (2023) (citation and punctuation omitted).
(a) Madera contends that trial counsel did not conduct an
adequate investigation of his case, pointing to a litany of actions
that, he says, counsel failed to undertake in preparing the case for
trial. But even assuming that counsel’s investigation was
inadequate, Madera “has not suggested, much less shown, what
further investigation would have revealed or how it would have
helped his defense” and, thus, “has failed to prove the required
prejudice.” Suggs, 310 Ga. at 768 (7) (a). See also Lupoe v. State, 300
Ga. 233, 241 (2) (b) (794 SE2d 67) (2016) (“To show prejudice on a
13 claim that trial counsel failed to adequately investigate the case, [a
defendant must] at least make a proffer as to what additional
investigation would have uncovered, and not merely speculate that
such information exists and would have made a difference.” (citation
and punctuation omitted)). Accordingly, his argument that trial
counsel was ineffective on this ground fails.
(b) Madera also contends that trial counsel was ineffective for
failing to pursue a pretrial motion for immunity based on
justification. See OCGA § 16-3-24.2 (“A person who uses threats or
force in accordance with [certain statutes governing justification as
a defense, including self-defense,] shall be immune from criminal
prosecution therefor unless in the use of deadly force, such person
utilizes a weapon the carrying or possession of which is unlawful by
such person under [OCGA §§ 16-11-120 to 16-11-125].”). In rejecting
this claim below, the trial court credited counsel’s testimony at the
motion-for-new-trial hearing that he “believed [Madera] was
unlikely to prevail in an immunity motion” and “wanted the State
to have to grapple with [Madera’s] theory of defense and [Madera’s]
14 testimony for the first time at trial.” On that basis, the trial court
concluded that counsel made a reasonable strategic decision not to
pursue such a motion and that Madera had failed to establish that
counsel’s decision was unreasonable.
On appeal, Madera, pointing to his own testimony at the
motion-for-new-trial hearing, argues only that trial counsel “did not
thoroughly discuss with him the prospect of filing [a pre-trial
immunity] motion” and that he “disagreed” with counsel’s strategy.
But Madera’s after-the-fact disagreement with trial counsel’s
strategy does not mean that the strategy was objectively
unreasonable. See Szorcsik v. State, 303 Ga. 737, 743 (5) (814 SE2d
708) (2018) (“[T]he fact that the trial counsel . . . made certain
difficult decisions regarding the defense tactics to be employed with
which appellant and his present counsel now disagree does not
require a finding that the representation below was so inadequate
as to amount to a denial of effective assistance of counsel.” (citations
and punctuation omitted)). Madera otherwise makes no attempt to
show “how his trial counsel’s strategic decision not to reveal the
15 defense theory to the prosecutor before trial, and instead to wait and
present [the] self-defense claim to the jury, was objectively
unreasonable.” Pope, 311 Ga. at 560 (where trial counsel testified
that “she did not think that the trial judge would find [a pretrial
immunity motion] sufficiently compelling to grant [and] just saved
it for trial,” appellant failed to show that counsel’s strategic decision
was unreasonable); see also Dent v. State, 303 Ga. 110, 119 (4) (d)
(810 SE2d 527) (2018) (where trial counsel testified that he
strategically decided to forgo filing a pretrial immunity motion “as
he did not want to expose [appellant] to pre-trial cross-examination
from the State, thereby previewing [appellant’s] anticipated trial
testimony, and that he chose to attempt to demonstrate self-defense
to the jury, as opposed to the judge,” appellant failed to show that
counsel’s “tactical decision was unreasonable”). Madera thus has
failed to show that counsel’s performance was constitutionally
deficient, and this claim fails.
5. Finally, Madera argues that the cumulative effect of the trial
court’s errors and trial counsel’s deficient performance requires a
16 new trial. But here, we have identified no trial court error, and we
have assumed deficiency with respect to only one alleged instance of
counsel’s ineffective assistance and concluded that Madera failed to
show he was prejudiced thereby. Thus, “there are no errors to
aggregate, and his claim of cumulative error also fails.” Blocker v.
State, 316 Ga. 568, 583 (5) (889 SE2d 824) (2023) (citation and
punctuation omitted).
Judgment affirmed. All the Justices concur.
Decided March 5, 2024.
Murder. Cobb Superior Court. Before Judge Leonard.
Willingham Law Firm, David R. Willingham, for appellant.
Flynn D. Broady, Jr., District Attorney, Leslie A. Coots, Linda
J. Dunikoski, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Beth A. Burton, Deputy Attorney General, Meghan
H. Hill, Clint C. Malcolm, Senior Assistant Attorneys General, for
appellee.