307 Ga. 129 FINAL COPY
S19A0908. MCKINNEY V. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Sidney McKinney was convicted of malice murder
for killing his former girlfriend Deborah Thigpen by beating and
strangling her. On appeal, he argues that the trial court erred by
admitting his conviction for a battery against Thigpen committed
three months before the murder as well as evidence of his attack on
another former girlfriend 15 years earlier. Appellant also argues
that his trial counsel provided ineffective assistance by failing to
object to the prosecutor’s statements in closing argument that
Appellant had previously raped Thigpen. We affirm.1
1 Thigpen was killed on December 27, 2014. On August 5, 2015, a Thomas
County grand jury indicted Appellant for malice murder, felony murder based on aggravated assault, and aggravated assault with an offensive weapon. Appellant was tried from January 25 to 27, 2016, and the jury found him guilty of all counts. The trial court sentenced Appellant to serve life in prison without the possibility of parole for malice murder. The court merged the felony murder and aggravated assault counts into the malice murder conviction, although the felony murder count was actually vacated as a matter of law, see Malcolm v. State, 263 Ga. 369, 374 (434 SE2d 479) (1993). Appellant filed a timely motion 1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed the following.
Thigpen met Appellant in September 2013, and they began dating.
In January 2014, Thigpen’s friend Phillip Bradley saw her and
Appellant walking down the street arguing. Appellant grabbed her
a few times and pushed her. After the fight, Thigpen told Bradley
that she wanted to get away from Appellant, and Bradley let her
stay with him for a while. During that time, when Bradley and
Thigpen would sit on his porch, Appellant would call her and say
things like, “I can see what you’re doing” and “I’m watching you.”
About three days after Thigpen started staying with Bradley,
Appellant showed up at Bradley’s house wanting to talk to Thigpen.
She spoke with him briefly, but after Bradley told Appellant to leave
and shut the door, Appellant became angry and kicked the door until
it fell off its hinges. He left when Bradley threatened to call the
for new trial, which he later amended with new counsel. After a hearing, the trial court denied the motion on December 17, 2018. Appellant then filed a timely notice of appeal, and the case was docketed to the April 2019 term of this Court and submitted for decision on the briefs. 2 police. In February 2014, Thigpen reported to the police that
Appellant had assaulted her, but he ultimately was not charged.
After Appellant and Thigpen’s relationship ended in early
2014, Thigpen resumed a romantic relationship with Johnny
Johnson. Thigpen told Johnson that Appellant had been “abusive
and beat her all the time.” On March 1, 2014, Thigpen was staying
with Johnson. According to Thigpen’s statements to Johnson and the
police, after Johnson left for work that morning, Appellant broke
into the house through a window and raped her. A responding police
officer found the screen off the window and a flower pot placed as if
somebody had used it to climb to the window. In an evolving story,
Appellant eventually admitted to being in the house but claimed
that he had consensual sex with Thigpen. Appellant was arrested
for rape and burglary and held in jail from March until September
2014, when the grand jury declined to indict him.
On September 18, shortly after Appellant was released, he
grabbed Thigpen on the street and tried to choke and sexually
assault her. The responding police officer noted that Thigpen had
3 scratches on her back and arm, a cut over her lip, and swelling to
her right eye. She also had some dirt on her back, and her clothing
was disheveled. Appellant was charged with misdemeanor family
violence battery; representing himself, he pled guilty in October
2014 and was sentenced to 12 months on probation.
Appellant knew that Thigpen, who was a habitual drug user
and may have supported that habit with prostitution, frequently sat
on a set of steps on Stevens Street in Thomasville. On more than one
occasion, Johnson saw Appellant following Thigpen, and her aunt
said that Appellant would “jump out of the bushes” at Thigpen.
Another neighbor saw Appellant watching Thigpen “from the trees,
bushes, anywhere he could stand to watch her.” Thigpen was so
scared of Appellant that she told at least six of her confidants,
including relatives and close friends, that if anything ever happened
to her, Appellant did it. And Johnson overheard a call Appellant
made to Thigpen, in which Appellant said, “I’ll kill you bi**h. If I
can’t have you, [Johnson] can’t have you.”
On the morning of December 27, 2014, Thigpen left Johnson to
4 walk with her friend John Cain across town. Johnson gave her a box
cutter to protect herself from Appellant. Later in the day, Thigpen
and Cain walked along the railroad tracks and used drugs. While on
the tracks, Thigpen kept looking back and saying that someone was
following them. Cain saw the “shadow of a man” behind them.
Thigpen said she was scared, and they left quickly. They went to a
house about a block away from the steps where Thigpen frequently
sat. At around 7:30 p.m., they started walking away from the house
in search of a drug dealer. A man Thigpen knew drove up, and she
got in the car. Cain walked to a nearby store; as he was leaving at
about 8:00 p.m., he saw Appellant walking on Stevens Street. At
8:34 p.m., a Thomasville police officer who knew Thigpen saw her
sitting on her usual steps.
Around noon the next day, two men found Thigpen’s body in
the bushes along a path behind an abandoned house across from the
steps on Stevens Street. She was naked from the waist down. In a
nearby trash can, a detective found a pair of panties and two pairs
of tights rolled on top of each other with leaves and other debris on
5 them. Johnson and Cain identified the tights as the ones Thigpen
was wearing when they last saw her. The injuries on Thigpen’s body
indicated that she had been hit multiple times on the head and in
the face and that a hand and a ligature of some kind, such as tights
pulled taut, had been wrapped and squeezed around her neck. She
also had scrapes along her buttocks area, indicating that she had
been dragged or was trying to scoot away while on the ground. The
cause of Thigpen’s death was asphyxia and blunt force trauma. It
would have taken at least five minutes for her to be killed in this
way. A sexual assault kit revealed no injuries in her genital area,
and swabs of the area did not show any male DNA. Under Thigpen’s
fingernails, however, there was DNA from Appellant.
Around 7:30 p.m. on the day Thigpen’s body was found, a GBI
special agent picked up Appellant from his mother’s house and
interviewed him at the police station. Appellant had small cuts and
a bite on his hands and a scratch on the left side of his neck. He also
had recently chewed off all of his fingernails. Appellant first told this
story: He had not seen Thigpen since December 17, when they had
6 sex along the path behind the abandoned house on Stevens Street.
He had been walking from his parents’ house to buy a cigarette on
the evening of December 27 when he encountered a drunk man in
the street in front of a housing project. Appellant tried to pull the
man out of the road, but the man fought back with a box cutter and
bit Appellant’s hand. Eventually, Appellant wrested the box cutter
away and left. (Investigators later spoke to people who lived in the
housing project, but could not find anyone who corroborated
Appellant’s story.)
When the agent told Appellant that someone saw him on
Stevens Street on December 27, he changed his story, first saying
that he was on a parallel street and then admitting that he had been
on Stevens Street. When the agent told Appellant that they would
be examining Thigpen’s body for DNA that can be transferred by
touch, Appellant again changed his story, claiming that he had seen
Thigpen between 12:00 and 2:00 p.m. on December 27; she was on
the path behind the abandoned house and asked Appellant to make
sure nobody came by so she could urinate; he did so and then rubbed
7 his hand on her clothed chest before he left. When he was asked if
there was any reason his DNA would be on Appellant’s thighs, he
again amended his account, claiming that in addition to touching
Thigpen’s chest, he stuck his hand down her pants and rubbed
between her thighs. Appellant claimed that he had been wearing a
black or dark brown sweatshirt and that he had not washed his
clothes.
Phone records, surveillance videos, and witness accounts
showed that on December 27, Appellant called his friend Craig
Staten to ask for a ride first at 8:32 p.m. from a liquor store close to
where Thigpen’s body was found and again at 9:14 p.m. from a house
about 100 yards away from the body’s location. When Staten picked
Appellant up at around 9:22 p.m., he noticed that Appellant had
deep scratches and a bite mark on his hands. Appellant claimed that
he had fought a man with a bat. Appellant stayed overnight with
Staten. Appellant showered but put the same clothes back on. The
next day, Staten took Appellant to Appellant’s mother’s house.
When investigators searched his mother’s house, she told them that
8 Appellant had been doing laundry right before he left for his
interview. In the dryer, there was a single outfit, which included a
grey sweatshirt. A fiber found on Thigpen’s body matched the fibers
found in that type of sweatshirt. In December 2014, while Appellant
was being held in jail, a guard heard him say, “I don’t have any
remorse about what I did.”
Appellant did not testify at trial. His main defense was that
the law enforcement officers failed to fully investigate other
potential suspects because they rushed to judgment against him
based on his history with the victim.
Appellant does not dispute the legal sufficiency of the evidence
supporting his conviction. Nevertheless, as is this Court’s usual
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 a rational jury to find Appellant guilty beyond a
reasonable doubt of malice murder. See Jackson v. Virginia, 443
U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v.
9 State, 285 Ga. 32, 33 (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 omitted)).
2. At trial, Appellant objected to the admission into evidence of
a certified copy of his misdemeanor battery conviction resulting from
his September 2014 attack against Thigpen, on the ground that he
was not represented by counsel when he pled guilty.2 Appellant was
not able to provide any law supporting this objection, and the trial
court overruled it. Appellant now argues that the conviction was
inadmissible hearsay and that its admission also violated his right
to confront the witnesses against him guaranteed by the Sixth
Amendment to the United States Constitution. Appellant did not
make a hearsay or Confrontation Clause objection at trial, however,
so these claims are reviewed only for plain error. See OCGA § 24-1-
103 (d); Varner v. State, 306 Ga. 726, 730 (832 SE2d 792) (2019).3
2 The conviction exhibit included the accusation, the guilty plea form,
and the sentencing form. 3 Because this case was tried in 2016, it was governed by Georgia’s new
Evidence Code, which took effect on January 1, 2013. See Ga. L. 2011, pp. 99,
10 To establish plain error, Appellant
must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings.
Lupoe v. State, 300 Ga. 233, 243 (794 SE2d 67) (2016) (citation and
punctuation omitted). Appellant has not established plain error
because he has not shown a clear error or that the alleged error
affected his substantial rights.
(a) “‘An error cannot be plain where there is no controlling
authority on point.’” Jackson v. State, 306 Ga. 69, 82 (829 SE2d 142)
(2019) (citation omitted). Appellant has identified no controlling
100 § 1. Although this Court has admonished attorneys to identify the applicable Evidence Code and cite its pertinent provisions and case law interpreting them, see, e.g., Davis v. State, 299 Ga. 180, 192 (787 SE2d 221) (2016), the attorneys for Appellant, the District Attorney’s office, and the Attorney General’s office all filed briefs with useless and sometimes misleading citations to cases decided under the old Evidence Code. We therefore ordered the parties to file corrected briefs within ten days with citations to, and analysis of, the applicable Evidence Code provisions and case law. The parties did so, with some helpful results. The Attorney General, for example, now recognizes that under the new Evidence Code, Appellant’s failure to raise his Confrontation Clause argument did not waive appellate review entirely, although it restricts review to plain error under OCGA § 24-1-103 (d). 11 authority — nor have we found any — supporting his argument that
a conviction resulting from an uncounseled misdemeanor guilty plea
not resulting in imprisonment is inadmissible hearsay or
inadmissible under the Confrontation Clause. The two cases
Appellant cites for his position do not support his hearsay or
Confrontation Clause arguments — or even his more generalized
argument that his uncounseled guilty plea to a misdemeanor not
resulting in imprisonment should not be used against him. See
Nichols v. United States, 511 U.S. 738, 746-747 (114 SCt 1921, 128
LE2d 745) (1994) (holding that an uncounseled guilty plea to a
misdemeanor can be used in sentencing for a subsequent offense,
even if that use increases the subsequent punishment to
imprisonment); Nash v. State, 271 Ga. 281, 285 (519 SE2d 893)
(1999) (holding that to use a prior guilty plea for recidivist
sentencing, the State must prove, among other things, that the
defendant had counsel “in all felony cases and those misdemeanor
proceedings where imprisonment resulted”).
Moreover, although this Court recently held that the
12 Confrontation Clause is violated when convictions of other people
are admitted against a defendant, we explained that “nothing about
this scenario can be read to suggest that a particular defendant’s
prior conviction could not be used against that same defendant in
his or her own case under the proper circumstances.” State v.
Jefferson, 302 Ga. 435, 441-443 & n.6 (807 SE2d 387) (2017)
(emphasis in original). Because there is no controlling authority
supporting Appellant’s argument, he has failed to show a clear error.
See Jackson, 306 Ga. at 82.
(b) To show that an error affected his substantial rights,
Appellant must “make an affirmative showing that the error
probably did affect the outcome below.” Lupoe, 300 Ga. at 243
(citation and punctuation omitted). The battery conviction was
cumulative of Johnson’s testimony recounting Thigpen’s description
of the September 2014 attack and the responding officer’s testimony
about Thigpen’s injuries.4 The only information the conviction added
4 The responding officer’s report was also admitted into evidence, but it
was not read to the jury or given to the jury during deliberations. 13 was that Appellant took responsibility and was punished for this
battery of Thigpen. In addition, the jury heard substantial testimony
about other prior difficulties between Appellant and Thigpen, to
which Appellant did not raise any objection. In light of the testimony
about the September 2014 battery as well as the other strong
evidence that Appellant killed Thigpen, including DNA and fiber
evidence and Appellant’s own shifting and unconvincing accounts,
the admission of his battery conviction did not probably affect the
trial’s outcome. See id. at 243-244. See also Williams v. State, 301
Ga. 829, 832 (804 SE2d 398) (2017) (holding in the context of
ordinary appellate review that the admission into evidence of the
appellant’s first offender plea record, even if error, was not harmful
because the jury heard extensive testimony about prior difficulties
between the appellant and the victim, the jury knew he had been
arrested for the incident resulting in the plea, and the evidence that
he killed the victim was overwhelming).
3. (a) At trial, the State presented evidence of Appellant’s prior
assault of a former girlfriend. The former girlfriend testified that
14 she dated Appellant and lived with him for about a year in 1999.
Four days after she kicked him out of the house, he came to her and
said that he wanted to talk. They walked down the street calmly
talking for a while; then Appellant suddenly grabbed her by the neck
and dragged her down into nearby bushes. He held one arm around
her neck in a choking manner and dragged her backward, making
her lie down. While Appellant choked her with one hand, he tried to
take off her clothes with the other. He stopped his attack when she
said that they had not really broken up. Appellant later pled guilty
to aggravated assault with the intent to rape, and a certified copy of
that conviction was admitted into evidence.
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a defendant, but such evidence may be
admissible for other purposes, including identity, intent, and motive
— the specific purposes for which the trial court admitted evidence
of Appellant’s attack against his former girlfriend. See OCGA § 24-
4-404 (b) (“Rule 404 (b)”). Under Rule 404 (b), evidence of an
extrinsic act is admissible if:
15 (1) the evidence is relevant to an issue in the case other than the defendant’s character; (2) the probative value of the evidence is not substantially outweighed by its undue prejudice; and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act.
Jackson, 306 Ga. at 76 (citation and punctuation omitted).
(b) Of the three purposes for which evidence of the prior attack
was admitted, the prosecutor focused most in his closing argument
on the purpose of proving Appellant’s identity as the perpetrator in
the charged attack against Thigpen. The trial court did not abuse its
discretion by admitting the evidence for that purpose.
As to the first element of the Rule 404 (b) test, “‘[w]hen
extrinsic offense evidence is introduced to prove identity, the
likeness of the offenses is the crucial consideration. The physical
similarity must be such that it marks the offenses as the handiwork
of the accused.’” Brooks v. State, 298 Ga. 722, 725 (783 SE2d 895)
(2016) (citing United States v. Phaknikone, 605 F3d 1099, 1108 (11th
Cir. 2010)). See also id. (“‘A much greater degree of similarity
between the charged crime and the uncharged crime is required
16 when the evidence of the other crime is introduced to prove identity
than when it is introduced to prove a state of mind.’” (quoting
United States v. Cardenas, 895 F2d 1338, 1342 (11th Cir. 1990)).5
Here, the prior conduct and the charged offenses share several
significant similarities. In both incidents, the assailant dragged a
female victim off a walkway into nearby bushes, pulling her
backward and to the ground; choked her with his hand; and removed
or tried to remove her clothes. Appellant argues that these
similarities are characteristic of many attacks on women, rather
than being indicative of his handiwork. See, e.g., United States v.
Lail, 846 F2d 1299, 1301 (11th Cir. 1988) (explaining that certain
shared traits, such as the use of a handgun and lack of disguise, did
not help prove identity because they were traits common to many
bank robberies).
But even if he were right, his argument overlooks a crucial
5 “OCGA § 24-4-404 (b) is modeled on Federal Rule of Evidence 404 (b).
We therefore look to the decisions of the federal appellate courts, particularly the decisions of the Eleventh Circuit, for guidance in construing and applying the [Georgia] rule.” Strother v. State, 305 Ga. 838, 846 (828 SE2d 327) (2019) (footnote omitted). 17 similarity — both victims were Appellant’s former girlfriends. And
although the charged crimes and the prior attack occurred 15 years
apart, each attack was committed after the victim’s relationship
with Appellant ended. See United States v. Grimmette, 208 Fed.
Appx. 709, 711 (11th Cir. 2006) (explaining that to be admissible to
prove identity, prior crimes need not be identical “‘in every detail[,
b]ut they must possess a common feature or features that make it
very likely that the unknown perpetrator of the charged crime and
the known perpetrator of the uncharged crime are the same person’”
(citation omitted)). It is true that unlike in the prior attack, the
assailant in the crimes charged in this case also hit the victim in the
head and used not only his hand to choke her but also a ligature
(likely the tights removed from the victim). However, under all of
the circumstances, including the evidence that the prior victim
talked Appellant into stopping the attack against her, those
differences do not constitute major dissimilarities. See United States
v. Whatley, 719 F3d 1206, 1218 (11th Cir. 2013) (considering
dissimilarities in evaluating whether prior act evidence was
18 admissible to prove identity). See also Brooks, 298 Ga. at 725-726.
Comparison of the two incidents indicates that “the possibility
is quite remote” that a person other than Appellant committed the
charged crimes of attacking one of Appellant’s ex-girlfriends in a
very similar way as his 1999 attack on another ex-girlfriend. United
States v. Miller, 959 F2d 1535, 1539 (11th Cir. 1992) (holding that
two drug deals had a sufficiently strong similarity to prove identity,
including that the supplier in both was called “Louis” and the
meeting place was the same residence). See also United States v.
Stubbins, 877 F2d 42, 44 (11th Cir. 1989) (holding that the
“sufficiently unusual and distinctive” feature that both drug offenses
happened at the same address made the prior offense relevant to
prove identity). Thus, the trial court could properly conclude that
evidence of the prior attack was relevant to prove identity.
The second part of the Rule 404 (b) test invokes OCGA § 24-4-
403, which is designed to “‘exclude matter of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial
effect.’” Kirby v. State, 304 Ga. 472, 480 (819 SE2d 468) (2018)
19 (citation omitted).6 The prior attack evidence had significant
probative value, given the similarities between the two incidents
and the State’s need to prove the identity of Thigpen’s killer to
overcome Appellant’s defense theory and the stories he gave the
police, which all asserted that he was not involved in Thigpen’s
murder. See Brannon v. State, 298 Ga. 601, 607-608 (783 SE2d 642)
(2016); Miller, 959 F2d at 1540.
The evidence that Appellant had assaulted another woman
was obviously prejudicial to him, but the trial court could reasonably
conclude that this prejudice did not substantially outweigh the
significant probative value of the prior attack. See Brannon, 298 Ga.
at 608; Miller, 959 F2d at 1540. See also Anglin v. State, 302 Ga.
333, 337 (806 SE2d 573) (2017) (explaining that although “evidence
of gang membership can be highly prejudicial,” “in a criminal trial,
6 OCGA § 24-4-403 says:
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. 20 inculpatory evidence is inherently prejudicial; ‘it is only when unfair
prejudice substantially outweighs probative value that the rule
permits exclusion.’” (citations omitted; emphasis in original)).
Additionally, the trial court instructed the jury both when the prior
act evidence was admitted and in the final jury charge that the jury
should not consider the prior act evidence to prove Appellant’s
character, but should consider it only to the extent that it was
relevant to show his identity, intent, and motive in the charged
crimes. See McWilliams v. State, 304 Ga. 502, 511 (820 SE2d 33)
(2018) (“Any prejudicial impact of the extrinsic acts evidence was
mitigated when the trial court gave the jury specific instructions
about the limited purpose of the evidence.”).
Finally, the former girlfriend’s testimony identifying Appellant
as her attacker and his subsequent conviction for aggravated assault
undeniably met the third element of the Rule 404 (b) test by
providing sufficient proof for the jury to find by a preponderance of
the evidence that Appellant committed the prior attack. For these
reasons, the trial court did not abuse its discretion in admitting this
21 evidence to prove identity.7
4. During closing argument, the prosecutor described
Appellant’s behavior toward Thigpen as “spik[ing] upwards to a
rape.” The prosecutor then acknowledged that the grand jury had
“no billed” the rape charge arising from the March 2014 incident and
that the State had to accept what the grand jury decided, but he
continued, “this rape happened.” He later described Appellant as a
person who had attacked and raped Thigpen before the murder.
Appellant’s trial counsel did not object to any of these statements.
7 On appeal, the State primarily argues that evidence of the 1999 attack
was admissible to prove Appellant’s intent in this case. Evidence of the prior assault may have been relevant for this purpose, but it was of very limited probative value because the prosecutorial need for it was negligible (and it was temporally remote). See Jackson, 306 Ga. at 77 (“Factors to be considered in determining the probative value of other-act evidence offered to prove intent include its overall similarity to the charged crime, its temporal remoteness, and the prosecutorial need for it.”). There was no real dispute that whoever beat and strangled Thigpen to death had the intent required for malice murder and aggravated assault with an offensive weapon. See id. at 78 (explaining that there was no real prosecutorial need to prove intent when all of the evidence indicated that the person who repeatedly fired a gun at the victim had the requisite general intent to commit an assault with a deadly weapon); Kirby, 304 Ga. at 486 (holding that there was “little if any prosecutorial need for extrinsic evidence” to prove that the person who repeatedly stabbed the victim had the requisite intent). See also Jackson, 306 Ga. at 80 n.12. Under the circumstances of this case, however, we need not decide whether the evidence that was properly admitted to prove identity was also admissible to prove intent or motive. See Kirby, 304 Ga. at 487. 22 At the motion for new trial hearing, trial counsel testified that he
did not recall the prosecutor’s focusing too much on the alleged rape
and that he did not object to the rape references because they fit in
with his theory of the case as a rush to judgment, showing that
“[e]verything this woman claimed about [Appellant] [the State]
would believe, . . . even to the point that they tried to have a case
indicted [when] they couldn’t even get it past the [g]rand [j]ury.” In
fact, in his own closing argument, trial counsel noted that Appellant
had been accused of raping Thigpen and kept in jail for six months
until the grand jury “no billed” the charge; counsel reminded the
jury that a police investigator had testified that it was unusual for
a grand jury not to indict.
Appellant contends that his trial counsel provided ineffective
assistance by failing to object to the prosecutor’s comments
characterizing him as a rapist. “To prevail on this claim, [Appellant]
must show that his counsel’s performance was professionally
deficient and that, but for the deficiency, there is a reasonable
probability that the outcome of the trial would have been more
23 favorable to him.” Cushenberry v. State, 300 Ga. 190, 197 (794 SE2d
165) (2016). See also Strickland v. Washington, 466 U. S. 668, 687,
694 (104 SCt 2052, 80 LE2d 674) (1984). “Whether to object to a
particular part of a prosecutor’s closing argument is a tactical
decision, and counsel’s decision not to make an objection must be
patently unreasonable to rise to the level of deficient performance.”
Smith v. State, 296 Ga. 731, 735-736 (770 SE2d 610) (2015) (citations
and punctuation omitted).
Here, trial counsel’s decision not to object to the prosecutor’s
comments was not unreasonable. The comments referred to
evidence of the rape that had been admitted, so an objection likely
would have failed. See Blaine v. State, 305 Ga. 513, 519 (826 SE2d
82) (2019) (explaining that “a prosecutor is granted wide latitude in
the conduct of closing argument” and “is entitled to emphasize the
evidence favorable to the State” (citation and punctuation omitted)).
And by acknowledging the grand jury’s refusal to indict Appellant
for the rape, the comments served as a reminder for the jury that
the State had brought an earlier, unsuccessful case against
24 Appellant for an alleged attack on Thigpen. Counsel reasonably
concluded that this reminder helped support the defense theory that
law enforcement rushed to judgment against Appellant.
Accordingly, Appellant has failed to prove that his counsel was
deficient, and his claim of ineffective assistance of counsel fails. See
Cushenberry, 300 Ga. at 197 (“‘Failure to make the required showing
of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.’” (citation omitted)). 8
Judgment affirmed. All the Justices concur.
DECIDED OCTOBER 21, 2019. Murder. Thomas Superior Court. Before Judge Hardy. Conger & Smith, Gregory D. Smith, for appellant. Bradfield M. Shealy, District Attorney, James L. Prine II, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
8 Appellant also contends in the heading of this enumeration that the
trial court erred by allowing the prosecutor’s statements, but he does not make any argument on this point, and his failure to object at trial waived such a claim. See Gates v. State, 298 Ga. 324, 329 (781 SE2d 772) (2016). 25 Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.