NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 13, 2025
S25A0299. MCIVER v. THE STATE.
ELLINGTON, Justice.
Benjamin Clarence McIver appeals his convictions for malice
murder and other crimes in connection with the shooting death of
Brandon Smith.1 McIver contends that his trial counsel provided
1 The crimes occurred on April 16, 2020. After being originally indicted
on December 2, 2020, McIver, Antavius Teazia Wilcox, and James Alphonso Parker were reindicted by a Chatham County grand jury on March 25, 2021. McIver and Wilcox were charged with malice murder, three counts of felony murder, and one count each of armed robbery, kidnapping, aggravated assault, and possession of a firearm during the commission of a felony. McIver alone was charged with possession of a firearm by a convicted felon, but that count was nolle prossed after trial. Wilcox alone was charged with possession of a firearm by a first-offender probationer. Parker alone was charged with the offense of tampering with evidence. McIver was tried separately at a jury trial that ended on June 30, 2022, and he was found guilty on all counts. On July 1, 2022, McIver was sentenced to serve three consecutive terms of life in prison without the possibility of parole for malice murder, armed robbery, and kidnapping, and a consecutive five-year prison term for possession of a firearm during the commission of a felony. More specifically, the armed robbery sentence was run consecutively to malice murder, the kidnapping sentence was run consecutively to armed robbery, and the sentence on the firearms count was run consecutively to kidnapping. The felony murder counts were vacated constitutionally ineffective assistance, that the trial court
committed plain error by not suppressing part of a custodial
statement, and that the evidence was insufficient to sustain the
jury’s verdict as to armed robbery. For the reasons explained below,
we reverse McIver’s conviction for armed robbery but affirm his
remaining convictions, and we remand the case to the trial court for
resentencing.
The evidence presented at trial showed that, on April 16, 2020,
McIver and co-indictee Antavius Wilcox, who was not tried with
McIver, bound Smith with computer cords, kidnapped him in his
vehicle, took and used his debit card, and executed him in a wooded
area past the end of Pate Street, a dead-end street in Chatham
County. Much of the evidence, as summarized below, came from
forensic extractions and records relating to cell phones belonging to
by operation of law, and the aggravated assault count was merged into the armed robbery. McIver filed a timely motion for new trial, which he amended through new counsel on January 18, 2023. After hearings on February 7 and October 24, 2023, the trial court denied McIver’s amended motion for new trial on August 12, 2024. McIver filed a timely notice of appeal, and the case was docketed in this Court to the term beginning in December 2024 and submitted for a decision on the briefs. 2 Smith, Wilcox, and McIver, which revealed their movements and
communications on the day of the shooting. Such evidence showed
that Wilcox arranged to meet Smith and for the two of them to meet
McIver, that soon afterwards Wilcox used Smith’s debit card, and
that Wilcox then worked to obtain a gun.
On the morning of April 16, Smith was working for a plumbing
and mechanical company when he was instructed between 9:30 and
10:00 a.m. to go to a different job site, and he left in his gray Kia
Optima. Smith communicated with Wilcox first through a dating
app and then directly by cell phone. There were several calls
between their phones from 10:22 a.m. to 11:20 a.m.2 At 11:08 a.m.,
Smith’s phone was used to locate an apartment complex near
Wilcox’s residence, where Wilcox’s phone was simultaneously
located, and Smith’s phone moved to the same complex. Smith’s
phone then searched for an address that was near the residence of
James Parker, who lived with Remon Roberson, although there was
2 The evidence showed that those calls may have been deleted later from
Smith’s phone. 3 no evidence that Smith had any connection with the area. Wilcox,
Roberson, and Parker were members of the Blood gang. That
morning, Wilcox was attempting to locate Parker to obtain a firearm
that she had previously loaned to him, but she was unable to locate
him at that time.
Cell phone data also showed that Wilcox spoke with McIver at
least seven times between 8:40 a.m. and 11:52 a.m., with a few of
their calls lasting longer than ten minutes. At 11:29 a.m., McIver
texted Wilcox “Savannah Gardens off Pennsylvania Avenue” and
then “Kall when you in route so I can B050.” At McIver’s trial, the
State’s gang expert testified that Blood gang members often
substitute the letter “c” with the letter “k” in words and that “B050”
was a term used by Blood gang members meaning to “be on point”
or “be ready.” At 11:37 a.m., Wilcox texted McIver “GK, you got
knife,” and McIver responded “red,” which the gang expert testified
is Blood slang for “Respect Every Damu,” the last word of which is
Swahili for “blood.” At 11:44 a.m., Smith’s phone was used to search
for Capital Street, which is near Savannah Gardens, and Wilcox’s
4 phone moved to that location at the same time McIver’s phone was
there. After a text from McIver to Wilcox at 12:00 p.m., McIver’s
phone had no activity for almost three hours, which indicated that
the phone was off during that period or the data was deleted. There
was never any communication between Smith’s phone and McIver’s
phone.
At 12:09 p.m., Smith’s phone searched for Wells Fargo and
traveled to a Wells Fargo Bank branch, arriving at 12:18 p.m. In
surveillance footage, Wilcox, who was wearing a head wrap and
mirrored sunglasses and was driving Smith’s vehicle, obtained
money using his debit card while someone in the passenger seat was
covering his face with a white cloth. Between 12:50 p.m. and 1:37
p.m., several calls were made from both Wilcox’s and Smith’s phones
to Parker and Roberson. Roberson testified that Wilcox had been
calling Roberson to ask where Parker was and that she asked if she
could get Roberson’s gun, but Roberson did not want to give it to her.
Roberson eventually told Parker to respond to Wilcox and give
Wilcox her gun or “whatever she want[ed].” Parker eventually left
5 the house with a gun. Parker testified at trial that Roberson told
him to give Wilcox her gun back. Wilcox stopped by their house,
driving a car with a person in the backseat who was not McIver, and
Parker handed her the gun through the car window.
Video from a residential surveillance camera showed that
Smith’s vehicle travelled down Pate Street in Chatham County at
approximately 1:40 p.m. and returned a few minutes later. About
the same time, a nearby resident who lived near the end of Pate
Street saw a vehicle fitting the description of Smith’s drive to the
end of the road and into a wooded area, heard a gunshot about three
minutes later, and saw the vehicle leaving Pate Street. Location
data from Wilcox’s phone shows that, afterwards, she returned to
the area of Savannah Gardens. At 3:50 p.m., McIver sent six
“multimedia messages” – probably containing images or photos –
from his phone to Wilcox, and one minute later, she responded,
“Monsta braxy ass n***a.” Although the content of McIver’s
messages was not available on any phone records or extractions, the
State argued at trial during its closing argument that Wilcox’s
6 response likely was a positive affirmation of her own actions and
that the messages likely contained images of Smith’s murder
because, when Wilcox was arrested, her phone contained a video of
her committing an unrelated execution-style double-homicide with
which she was later charged. A call on Wilcox’s phone at 5:35 p.m.
showed she was again near Parker’s and Roberson’s house, and
Smith’s cell phone was located on a nearby street that evening.
At 8:12 p.m. on April 16, 2020, Wilcox called 911 from near her
residence to report a dead body in the woods past the dead end of
Pate Street. A Savannah police officer responded and located a
deceased person, later identified as Smith, on his knees face down
on the ground 30 to 40 yards into the woods. A GBI medical
examiner later determined Smith’s death was a homicide caused by
a single gunshot wound that entered the back of Smith’s skull and
exited the bridge of his nose. A forensics officer processed the scene
and obtained swab samples of the computer cords used to bind
Smith’s hands behind his back. The lead detective, Jacob Schroyer,
submitted these swabs to the GBI for DNA testing. On April 21,
7 officers located Smith’s vehicle, the inside of which was covered in
soot and smelled like gasoline, suggesting an attempt to burn the
vehicle.
On the night following the murder and again on April 20,
McIver used his phone to review news reports regarding shootings
and homicide investigations in Savannah, including two specifically
mentioning Pate Street, and an article about fires in Savannah.
McIver also searched for information about a “car fire,” searched his
name on a website for obtaining background checks, and then
searched “how do I find out if I have a warrant.” In May 2020,
Wilcox was arrested, and Detective Schroyer reviewed her phone
records, observed that she had been communicating with McIver on
the day of the murder, obtained a search warrant for McIver’s phone,
and conducted a non-custodial interview of McIver at police
headquarters. During that interview, McIver confirmed his phone
number and stated that, until two weeks ago, he had been working
only odd jobs. McIver denied knowing Wilcox but subsequently said
that he may have sold marijuana to her. McIver confirmed he was
8 still looking for a job on April 16 but denied having been to the Wells
Fargo branch on Victory Drive and denied knowledge of Smith’s
vehicle or of the location of Pate Street. McIver then consented to a
buccal swab for his DNA.
Based on a subsequent report from the GBI showing a DNA
match between McIver and one of the cords used to bind Smith,
Detective Schroyer obtained an arrest warrant for McIver. At a post-
arrest interview of McIver in November 2020, Schroyer read McIver
his Miranda 3 rights, and McIver agreed to speak with Schroyer.
McIver denied killing anyone or being present when anyone was
killed. When McIver said he wanted to make a phone call, Schroyer
confirmed that McIver did not want to talk further. Schroyer said he
would not waste any more of McIver’s time but would “get [him] on
[his] way.” Schroyer then asked McIver, “What’s your phone number
real quick?” McIver gave Schroyer his new phone number, and the
interview ended.
Because the GBI forensic biologist initially assigned to test the
3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
9 DNA samples could not complete the analysis due to the low level of
DNA, the samples were sent to another GBI forensic biologist for
analysis using TrueAllele software. Emily Boswell, who performed
the analysis, stated that of the four samples taken from the cords
used to bind Smith, only one contained a match to McIver, Parker,
Roberson, or Wilcox. Boswell determined that a “DNA match was
identified between” one swab and McIver and that the DNA match
was, “approximately, one million times more probable than a
coincidental match to an unrelated person in the population.”
1. McIver contends that his trial counsel provided
constitutionally ineffective assistance when he failed to make a
timely request for the assistance of a forensic expert in DNA
analysis in preparing for trial and reviewing the testing procedures
used by the GBI, and when counsel failed to file a pre-trial motion
challenging the reliability of the DNA test results pursuant to the
evidentiary standard established in Harper v. State, 249 Ga. 519,
10 524-526 (1) (292 SE2d 389) (1982), for new scientific techniques. 4
The trial court rejected this claim, relying in part on trial counsel’s
choice to attack the reliability of the DNA evidence through cross-
examination. Because McIver has failed to show that his counsel’s
performance was deficient, this claim of ineffective assistance fails.
To prevail on a claim of ineffective assistance, a defendant
must prove both that the performance of his lawyer was deficient
and that he was prejudiced by counsel’s deficient performance.
Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80
LE2d 674) (1984). To satisfy the deficiency prong of the Strickland
test, the defendant “must show that his attorney performed at trial
in an objectively unreasonable way considering all the
circumstances and in light of prevailing professional norms.” Lofton
v. State, 309 Ga. 349, 360 (6) (846 SE2d 57) (2020). “This requires a
defendant to overcome the strong presumption that counsel’s
performance fell within a wide range of reasonable professional
4 Where, as here, the trial in a criminal case commenced before July 1,
2022, the Harper standard applies. See Garrison v. State, 319 Ga. 711, 725 (3) (b) (905 SE2d 629) (2024). 11 conduct, and that counsel’s decisions were made in the exercise of
reasonable professional judgment.” Scott v. State, 306 Ga. 417, 419-
420 (2) (831 SE2d 813) (2019) (citation and punctuation omitted).
“Decisions 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.” Thomas v. State, 311 Ga. 706, 714 (2) (a) (859 SE2d 14)
(2021) (citation and punctuation omitted). The defendant must also
show that the deficient performance prejudiced the defense, which
requires showing that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U. S. at 694 (III) (B). If an
appellant “fails to meet his burden of proving either prong of the
Strickland test, the reviewing court does not have to examine the
other prong.” Williams v. State, 315 Ga. 797, 806 (2) (884 SE2d 877)
(2023).
“Typically, the decision whether to present an expert witness
is a matter of trial strategy that, if reasonable, will not sustain a
12 claim of ineffective assistance.” Guzman-Perez v. State, 310 Ga. 573,
577 (2) (853 SE2d 76) (2020) (citation and punctuation omitted).
More specifically, how to respond to “the presentation of an expert
witness by the opposing side,” such as “whether to present counter
expert testimony, to rely upon cross-examination, to forego cross-
examination and/or to forego development of certain expert opinion,
is a matter of trial strategy” that, if reasonable, cannot successfully
establish a claim of ineffective assistance of counsel. Birdow v. State,
305 Ga. 48, 52 (2) (823 SE2d 736) (2019) (citation and punctuation
omitted).
During trial, McIver’s counsel filed a motion to permit video
testimony of expert witnesses and an ex parte motion for funds to
hire two forensic DNA experts. The next day, counsel subpoenaed
Jarrett P. Ambeau to testify about forensic interpretation, and Dr.
Greg Hampikian to testify regarding forensic analysis, testing, and
collection. Counsel explained that he did not provide any written
reports regarding the experts’ findings because he did not have the
funds approved and had not received the part of the GBI file needed
13 for them to write a report challenging the DNA evidence. Although
the trial court admonished counsel for not having the two experts
under subpoena and not having written reports until the State was
“close to resting,” the court granted the requested funds but denied
the request for the testimony to be virtual. Counsel did not make
any further effort to secure funds or the expert witnesses’
attendance, and neither expert testified for the defense.
After the judgment of conviction was entered and a motion for
new trial was filed, new appellate counsel filed both an amended
motion for new trial and a motion for funds to obtain forensic expert
testimony and a report on the DNA evidence. At the first hearing on
McIver’s motion for new trial, trial counsel testified that, although
about 50 percent of his practice was criminal defense, he had never
tried a case with DNA evidence in 27 years of practice but that he
researched the issue, consulted several other attorneys, and
eventually identified two experts on DNA evidence about a week
prior to trial. Neither expert informed counsel initially that they
needed additional material from GBI that had not been provided
14 through discovery, but neither expert was comfortable testifying
without that material. Dr. Hampikian reviewed the evidence and
educated counsel about DNA evidence while he waited for the court
to approve his request for $2,500. After approval, Dr. Hampikian
stated that it would cost $13,000 to fly him to Chatham County to
testify in person. Despite the experts being unable to testify, counsel
“was constantly being coached [by them] throughout the entire
trial.” Counsel was able to use their assistance for cross-
examination of the State’s experts about mixture comparison and
statistical interpretation in DNA analysis, probabilistic genotyping,
and secondary DNA transfer. That cross-examination led to
concessions about those matters at trial and was the basis for a
significant portion of counsel’s closing argument.
Counsel also stated that he filed a demand for speedy trial at
McIver’s daily insistence even though they did not have all of the
discovery yet, and he spoke with McIver about the need for an expert
to challenge the DNA evidence and warned him about the dangers
of filing the demand. Counsel testified that the speedy trial demand
15 was a major reason he was unable to obtain the experts’ testimony
and report. The trial court granted the defense funds for an expert
pursuant to appellate counsel’s motion.
At the second motion-for-new-trial hearing, Dr. Hampikian
testified that trial counsel was unprepared and that he was ready to
help prepare counsel for cross-examination and to fly down, but that
he would be very honest with the court about the “level of
preparation and communication and rush.” He asserted that the
“very low level” of DNA analyzed – five cells or less when typically
an analyst prefers more than 200 cells for a profile – was below GBI’s
validation levels and would have created interpretation challenges
but the analysis was “not impossible.” If he had testified, Dr.
Hampikian would have explained the high risk of secondary transfer
and criticized the GBI experts for conflating the results of studies.
When asked about mathematical errors in his report, he stated that
he would provide a corrected report and that the errors would not
change the bottom line of his report. He testified that the results
from his software showed that the contributor percentage of
16 McIver’s known profile matched that obtained during the GBI’s
testing. Dr. Hampikian acknowledged that the TrueAllele program
is “good,” that he relied on it to render opinions in other cases, and
that he did not know whether the sample in one of those cases had
more cells present than the ones in this case.
Dr. Hampikian’s amended written report, which was
submitted the day after the hearing, criticized Boswell’s testimony
and counsel’s cross-examination of her and stated that it was “clear
from the GBI validation that for low template samples with at least
3 contributors, minor contributor profiles are subject to false
inclusion errors”; that it was not clear “GBI established during its
validation that it can reliably interpret such low amounts of DNA in
such complex mixture samples”; and that “GBI’s validation study
produced false inclusions with similar laboratory created control
samples, though with lower match statistics.”
(a) First, we address McIver’s claim that his trial counsel
should have obtained the assistance of DNA experts in preparing for
trial and reviewing the GBI’s testing procedures. The record shows
17 that counsel investigated and prepared for the DNA evidence in this
case, that he used the help of the DNA experts to prepare for cross-
examination, and that, given the time constraints caused by
McIver’s insistence on a speedy trial and the weaknesses of Dr.
Hampikian’s potential testimony, it was not unreasonable to rely on
cross-examination of Boswell rather than present testimony from
Dr. Hampikian. Considering all of the circumstances from counsel’s
perspective, and in the light of prevailing professional norms, we
conclude that McIver has failed to show that counsel’s strategic
decision not to use the assistance of DNA experts in some additional
way and not to present expert testimony about the DNA evidence
was so unreasonable that no competent attorney would have chosen
it. See Hughs v. State, 312 Ga. 606, 612-613 (2) (864 SE2d 59) (2021)
(holding that the appellant failed to carry his burden of showing
deficient performance where his trial counsel thoroughly
investigated and prepared for the State’s medical evidence and
made the strategic decision to attack that evidence through a
thorough cross-examination of the State’s witnesses instead of
18 presenting the testimony of a competing medical expert who counsel
was concerned would have made harmful concessions); Guzman-
Perez, 310 Ga. at 577-578 (2) (holding that the appellant could not
show deficient performance where his counsel made a strategic
decision to undertake a thorough cross-examination of the State’s
medical expert instead of retaining his own expert). The fact that
McIver and his appellate counsel “now disagree with the difficult
decisions regarding trial tactics and strategy made by trial counsel
does not require a finding that [McIver] received representation
amounting to ineffective assistance.” Guzman-Perez, 310 Ga. at 578
(2) (citation and punctuation omitted).
(b) Second, we turn to McIver’s claim that trial counsel failed
to file a pre-trial motion under Harper challenging the reliability of
the DNA testing using the TrueAllele software. Citing State v.
Gates, 308 Ga. 238 (840 SE2d 437) (2020), McIver recognizes that
we have not yet addressed or approved the reliability and
admissibility of TrueAllele analysis under the Harper standard.
Indeed, although we discussed TrueAllele analysis in Gates, we
19 decided in that case only “that (1) the defendant had shown
reasonable diligence in filing his extraordinary motion for a new
trial based on TrueAllele analysis, and (2) the DNA evidence offered
in that case was material and may well affect the outcome of the
case,” and we did not consider in that case “any challenge to the
admissibility of the evidence.” Nundra v. State, 316 Ga. 1, 15 (5) (885
SE2d 790) (2023) (holding that the appellant failed to show plain
error in the decision to admit the TrueAllele analysis).
In this case, the trial court would have been authorized to
conclude that Boswell’s testimony showed the TrueAllele analysis
was scientifically valid and that no other evidence contradicted her
testimony. Boswell was one of the first GBI forensic biologists to be
trained in the TrueAllele probabilistic genotyping software used in
mixture interpretation. Boswell testified that probabilistic
genotyping software like TrueAllele and the science behind it is
generally accepted in the forensic community, that the general
scientific principles and techniques involved are valid and capable
of producing reliable results, that in analyzing the samples she
20 performed the scientific procedures in an acceptable manner, and
that her analysis was peer reviewed. Boswell also testified that the
GBI performed its own internal validation study that resulted in the
policies and procedures used in analyzing DNA samples with
TrueAllele, as well as the creation of different thresholds. On cross-
examination, Boswell confirmed the importance of abiding by the
policies and procedures and the thresholds established by the GBI’s
validation study of the TrueAllele software, as confirmed by the peer
reviewer in each case. On motion for new trial, Dr. Hampikian’s
testimony, which conceded his own use of TrueAllele analysis, did
not undermine its admissibility. Because McIver has not been able
to show that filing a Harper motion would have been successful – in
particular because his own proposed expert used TrueAllele analysis
and did not undermine its scientific basis – we cannot say that trial
counsel was deficient in failing to file such a motion. See Santana v.
State, 308 Ga. 706, 712 (3) (a) (842 SE2d 14) (2020) (holding that
trial counsel’s failure to file a Harper motion to exclude fingerprint
testimony was not deficient where the appellant had failed to show
21 that the fingerprint evidence presented by the State had not reached
a scientific stage of verifiable certainty or that the specific
fingerprint methodology or analysis used in that case was not
scientifically supported).
2. McIver also contends that his trial counsel rendered
ineffective assistance when he failed to move to suppress the portion
of McIver’s custodial statement occurring after he invoked his right
to silence and that the trial court committed plain error by not
suppressing that same portion of the custodial statement. Because
the theory behind McIver’s contention would require an extension of
precedent, it cannot support a claim of either plain error or
ineffective assistance.
McIver argues that the admission into evidence of Detective
Schroyer’s request for McIver’s phone number and his reply stating
his new phone number – all of which occurred, as described above,
after McIver said he needed to make a phone call and affirmed that
he did not want to talk further – violated his right to remain silent
22 under the Fifth Amendment to the United States Constitution.5
“[W]hen a person in the custody of law enforcement officers
unambiguously and unequivocally invokes his right to remain silent
in connection with their interrogation, the interrogation must cease
immediately.” Davidson v. State, 304 Ga. 460, 468-469 (4) (819 SE2d
452) (2018). However, that right – derived from the Fifth
Amendment, see id. at 468 (4), and described in Miranda v. Arizona,
384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966) – is subject to an
exception for general booking questions. Thus, “even after a
defendant has invoked his rights, basic biographical questions” are
excepted from Miranda “because such ‘booking’ questions are
unrelated to the investigation and serve a legitimate administrative
need and therefore do not qualify as ‘interrogation.’” State v. Pauldo,
309 Ga. 130, 135 (2) (844 SE2d 829) (2020) (citation and punctuation
omitted). Booking questions that Georgia courts have allowed
5 McIver cites in passing the Georgia Constitution of 1983, Art. I, Sec. I,
Par. XVI, but he makes no separate argument and cites no cases regarding the Georgia Constitution, and we therefore restrict our analysis to his claim under the federal constitution. See Smallwood v. State, 310 Ga. 445, 447 (2) n.2 (851 SE2d 595) (2020). 23 include those seeking “the suspect’s name, age, address, educational
background, marital status, and other information required to
complete an arrest form.” Griffin v. State, 311 Ga. 579, 587 (6) (858
SE2d 688) (2021) (citation and punctuation omitted). But we have
not yet decided, and indeed have expressly declined to decide,
whether a police officer may ask a suspect for his phone number
under the booking exception. See id. Nor has the Supreme Court of
the United States decided that question. Cf. Pennsylvania v. Muniz,
496 U. S. 582, 601-602 (III) (C) (110 SCt 2638, 110 LE2d 528) (1990)
(four-justice plurality holding that a suspect’s answers to “questions
regarding [his] name, address, height, weight, eye color, date of
birth, and current age” that “were not intended to elicit information
for investigatory purposes” and “appear reasonably related to the
police’s administrative concerns” are “admissible because the
questions fall within a ‘routine booking question’ exception”).6 Under
United States Supreme Court and Georgia case law interpreting the
6 We recently explained how difficult it is to say exactly what was the
holding of Muniz on this point. See Jenkins v. State, 317 Ga. 585, 597 (2) (c) n.12 (894 SE2d 566) (2023). 24 Fifth Amendment, therefore, a decision that requesting the
suspect’s phone number does not come within the booking
exceptions but amounts to interrogation would require an extension
of precedent.
(a) As a result, McIver has failed to show that the performance
of his trial counsel in not moving to suppress his exchange with
Detective Schroyer about his new phone number was deficient. See
Smith v. State, 313 Ga. 752, 757 (2) (a) (873 SE2d 142) (2022) (“[A]
criminal defense attorney does not perform deficiently when he fails
to advance a legal theory that would require an extension of existing
precedents and the adoption of an unproven theory of law.” (citation
and punctuation omitted)). See also Pugh v. State, 318 Ga. 706, 722
(2) (d) (899 SE2d 653) (2024) (“Trial counsel . . . cannot be deemed
ineffective for failing to argue precedent that was not in existence at
the time of the trial.” (citation and punctuation omitted)).
Accordingly, McIver’s claim of ineffective assistance fails.
(b) McIver also has failed to establish plain error.
To establish plain error, [the appellant] must show that he did not affirmatively waive the error, that the error is 25 clear or obvious, rather than subject to reasonable dispute, that it affected his substantial rights, and that it seriously affects the fairness, integrity or public reputation of judicial proceedings.
Williams v. State, 316 Ga. 304, 308 (1) (b) (888 SE2d 60) (2023).
Because McIver’s theory regarding his exchange with Detective
Schroyer about his new phone number would require an extension
of precedent, the alleged error in admitting that exchange into
evidence was not clear or obvious rather than subject to reasonable
dispute. See id. (“As to the second part of the test, an error is plain
if it is clear or obvious under current law. An error cannot be plain
where there is no controlling authority on point or if a defendant’s
theory requires the extension of precedent.” (citations and
punctuation omitted)). For this reason, McIver’s claim of plain error
fails.
3. McIver’s final contention is that the evidence was
insufficient to support his conviction for armed robbery. The armed
robbery count of the indictment charged that McIver and Wilcox,
“with the intent to commit a theft, did unlawfully take a debit card,
property of Brandon Smith, from the immediate presence of 26 Brandon Smith, by the use of a gun, an offensive weapon[.]” “The
State therefore was required to prove beyond a reasonable doubt
that [the] use of the handgun occurred prior to or
contemporaneously with the taking” of the debit card. Harrington v.
State, 300 Ga. 574, 577 (2) (a) (797 SE2d 107) (2017) (citation and
punctuation omitted). Moreover, the “taking” of property “is not a
continuing transaction which ends only when the defendant leaves
the presence of the victim. Instead, the taking is complete once
control of the property is transferred involuntarily from the victim
to the defendant, even if only briefly.” Id. (citation and punctuation
The State correctly concedes that the evidence in this case was
not sufficient to authorize a rational trier of fact to find beyond a
reasonable doubt that McIver was guilty of armed robbery. Indeed,
the evidence presented by the State, including all reasonable
inferences, showed only that a gun was obtained and used well after
the theft of the victim’s debit card. Accordingly, the conviction for
armed robbery must be reversed. See Chavez v. State, 307 Ga. 804,
27 808 (1) (b) (837 SE2d 766) (2020) (reversing a conviction for
possession of a firearm by a first-offender probationer where the
State correctly conceded it presented no evidence that the appellant
possessed a firearm during the term of his probation and prior to his
discharge); Harrington, 300 Ga. at 577-578 (2) (a) (reversing a
conviction for armed robbery where the evidence was insufficient to
support a finding beyond a reasonable doubt that the appellant used
a handgun to take a cell phone from the victim); Johnson v. State,
288 Ga. 771, 773 (1) (a) (707 SE2d 92) (2011) (reversing a conviction
for armed robbery where the evidence failed to establish whether
the appellant “first took the debit card and then killed the victim or
whether he killed the victim and then took the debit card”).
Our reversal of the armed robbery conviction affects other
aspects of the trial court’s sentence: merging the aggravated assault
count into the armed robbery conviction, running the kidnapping
sentence consecutively to the armed robbery sentence, and in turn
running the sentence for possession of a firearm during the
commission of a felony consecutively to the kidnapping sentence.
28 Because we are reversing the armed robbery conviction, the
aggravated assault count no longer can be merged into it but must
instead be merged into the malice murder because both the malice
murder and aggravated assault counts of the indictment alleged
that the co-indictees committed the crime “by tying [Smith] up and
shooting him,” and “there is no evidence to suggest the occurrence
of an aggravated assault independent of the act which caused the
victim’s death.” Miller v. State, 309 Ga. 549, 552 (3) (847 SE2d 344)
(2020). Moreover, the kidnapping sentence no longer can be run
consecutively to the armed robbery sentence. Accordingly, we also
remand the case to the trial court for resentencing consistent with
this opinion. See, e.g., Reed v. State, 314 Ga. 534, 554 (9) (878 SE2d
217) (2022) (“[B]ecause [the appellant’s] sentence for possession of a
firearm during the commission of a felony . . . was run consecutively
to his sentence in [a] [c]ount . . . which now stands vacated, we
remand the case to the trial court for resentencing.”).
Judgment affirmed in part and reversed in part, and case remanded for resentencing. Peterson, CJ, Warren, PJ, and Bethel, McMillian, LaGrua, Colvin, and Pinson, JJ, concur.