308 Ga. 543 FINAL COPY
S20A0265. ROBINSON v. THE STATE.
PETERSON, Justice.
Herbert Robinson appeals his convictions for malice murder,
armed robbery, and possession of a firearm during the commission
of a felony in connection with the death of Michael Moore.1 He
argues that the trial court erred by allowing the State to use two
firearms for demonstrative purposes during trial, and by allowing
1 The crimes occurred on August 18, 2016. On January 9, 2017, Robinson
was indicted for malice murder, felony murder, aggravated assault, armed robbery, and possession of a firearm during the commission of a felony. Although Robinson was 16 years old at the time of the crimes, he was prosecuted as an adult. Following a jury trial on June 27 to 29, 2018, Robinson was found guilty on all counts. The trial court sentenced Robinson to serve life in prison for malice murder, a consecutive sentence of life in prison for armed robbery, and five consecutive years for possession of a firearm during the commission of a felony; the trial court determined that the felony murder and aggravated assault counts were vacated by operation of law, but in fact the aggravated assault count, predicated on Robinson shooting Moore, merged into the malice murder conviction. See Culpepper v. State, 289 Ga. 736, 738 (2) (a) (715 SE2d 155) (2011). Appellant filed a motion for new trial on July 11, 2018, which he subsequently amended through new counsel. A motion hearing was held on April 30, 2019; the trial court denied Robinson’s motion as amended on May 21, 2019. Appellant filed a notice of appeal on May 31, 2019. This case was docketed to this Court’s term beginning in December 2019 and submitted for a decision on the briefs. body-camera footage to be shown at trial. He also argues that his
trial counsel was ineffective for failing to object to a letter written
by Robinson’s cellmate being available to the jury for review during
deliberations and for failing to object to a visual aid used by the
State during closing arguments. Because Robinson has failed to
show ineffective assistance of counsel or reversible error by the trial
court, we affirm.
Viewed in the light most favorable to the jury’s verdicts, the
trial evidence showed the following. Moore lived in an apartment
with his wife, Dawn, and their two children. He primarily stayed
home to watch his two children while Dawn worked, but he earned
some money cleaning firearms and repairing cell phones. He owned
an AR-15 with a laser scope that he kept in his bedroom and treated
“like his baby.”
On the evening of August 18, 2016, Keon Wilcox and Robert
Murphy were hanging out at a ball field adjacent to their apartment
complex when they were approached by Robinson, who was 16 years
old. He asked the others to walk with him to “get something fixed,” and they agreed; Robinson said their destination was “right up the
road,” but he did not specify the location. Wilcox and Murphy
testified that they did not know where Robinson was leading them.
Around 9:00 p.m., the three men walked to the Moores’ home, and
Robinson knocked on the door. Dawn opened the door and saw
Robinson, with two other young men standing further behind him.
Robinson introduced himself as “Kilo,” but Dawn recognized
Robinson because he had come by the house a few days prior,
introducing himself as “Mookie.” Robinson said he needed to talk to
Moore, so Dawn went upstairs where Moore was in bed, and told
him that someone was asking for him, and that the person said it
was important; Moore went downstairs to talk to Robinson.
When Moore came to the door, Robinson took out a small
handgun and asked Moore to clean it.2 Moore took the handgun back
into the house, then went to the bedroom and asked Dawn for his
2 Wilcox and Murphy testified that they were unaware that Robinson
had a gun until they approached the Moores’ house. Neither Wilcox nor Murphy was armed; neither was charged as an accomplice; and Robinson has not argued at trial or on appeal that they were involved in the crimes. gun cleaning kit. Dawn told him where the kit was, and he left the
bedroom and cleaned the gun. When Moore brought the cleaned gun
out to Robinson, Moore threw one of the bullets away in the yard
because he said the bullet was “bad.” Robinson replied, “give my
bullet back,” and replaced the bullet in the gun before putting the
gun in his pocket.
Moore and Robinson talked for a while, and Robinson said he
wanted to see Moore’s AR-15 to “show my homeboys the beam on the
gun.” Dawn heard Moore reenter the house and grab something from
the bedroom, but Dawn didn’t see what was taken.
Moore brought out his AR-15 for Robinson to see, and
demonstrated the laser sight on the gun. Robinson asked to use the
laser sight, and Moore agreed, handing Robinson the AR-15.
Robinson played with the gun’s laser sight, shining the light up into
the trees. During this time, Murphy stepped to the side of the house
to urinate, and Wilcox walked away from the house to look up at the
light. Then, Wilcox saw Robinson take the handgun out of his pocket
and shoot Moore in the chest. From the bedroom, Dawn heard a loud pop. Robinson said, “I told y’all I’d do this sh*t,” as he and the other
two separately fled the scene.
As he fled the scene, Robinson called Teresa Porter. During the
call, Robinson said, “Teresa, I just killed – I just shot somebody. Can
you come pick me up?” Porter declined to do so, because she thought
he was joking. But Robinson again said, “I just shot somebody. Don’t
you hear the sirens?” Even though Porter heard sirens, she didn’t
believe that Robinson was telling her the truth at that time.
Moore stumbled back into his apartment and fell into the
hallway. Dawn came out from the bedroom and saw him lying face
down on the living room floor. She called 911 and attempted to
render aid, but could not flip him onto his back. Emergency
personnel also attempted to help Moore, but he died as a result of
the gunshot wound. Dawn realized that the AR-15 was no longer
hanging in its usual place on their bedroom wall, so she reported it
as missing to responding police officers. In the front yard, crime
scene personnel collected a shell casing from a .380 handgun. Crime
scene personnel searched the house and surrounding areas, but could not find the AR-15.
Dawn independently searched Facebook to identify the man
who was at her door that night. She recalled that Robinson had
previously identified himself as Mookie, and found a Facebook
profile for “Skoolboy Mookie.” She confirmed that the photo depicted
the man she saw at her door, and texted a screenshot of the photo to
the GBI agent who had interviewed her about the shooting. At trial,
Dawn identified Robinson as the man who came to her house the
night of the shooting.
After the shooting, Wilcox and Murphy ran. Later that night,
Wilcox talked to his mother and then his great-uncle about what had
happened. Wilcox’s great-uncle, who was in law enforcement,
contacted the GBI, and Wilcox went to the police station and gave a
statement. Following Wilcox’s statement, police made contact with
Murphy. Murphy initially denied being present at the shooting, but
later admitted that he was there. Both Wilcox and Murphy spoke
with law enforcement on the night of the shooting. After speaking
with Wilcox and Murphy, law enforcement began looking for Robinson, and located him about a month later in an apartment in
Waycross. Robinson was arrested and placed into custody at the Ben
Hill County Jail.
While in custody, Robinson approached fellow inmate, Anthony
Cobb, seeking legal advice. Robinson introduced himself to Cobb as
“the guy that killed that white dude across town.” Robinson told
Cobb that he and his friends wanted to commit a home invasion, so
they went to a home and knocked on the door. He explained that
when the “white dude” stepped out on the porch, they began to talk
about an AR-15. He told the victim that he didn’t believe the gun
was real, so the victim brought the gun out and gave it to Robinson
to see. Robinson said he refused to give the AR-15 back, he and the
victim struggled over the AR-15, and Robinson ultimately shot the
victim with his own gun. Cobb talked to law enforcement about this
discussion; when Robinson found out, he threatened Cobb’s life.
A medical examiner determined that Moore was shot once in
the right upper chest just below his clavicle. The entrance wound
showed gunpowder stippling, which indicated an intermediate or close-range gunshot, estimated to be two to three feet away from the
victim. The medical examiner retrieved a .380 bullet. Besides the
gunshot wound, Moore did not have any significant injuries
indicating a fight, although he did have some bruising on his arms
and legs. Moore’s cause of death was determined to be a single
gunshot wound to the chest.
1. Robinson does not challenge the sufficiency of the
evidence. Nevertheless, as is our customary practice
in murder cases, we have independently reviewed the record and
conclude that the evidence was legally sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that Robinson
was guilty of the crimes for which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).
2. Robinson argues that the trial court erred in two respects:
(a) by allowing the State to use firearms as demonstrative aids, and
(b) by allowing the State to introduce two body-camera videos.
(a) The State’s ballistics expert testified that the crime lab
determined that the bullet extracted from Moore’s body was a .380 metal jacketed bullet that could have been fired from one of six
brands of .380 pistols that all generally worked the same way. The
expert testified that she did not receive any firearms in this case and
that she did not compare firearms to the bullet. The State then
presented a .380 semiautomatic pistol and an AR-15 rifle to the jury
“for demonstrative purposes only.” Robinson objected to the
presentation of both guns, arguing under OCGA § 24-4-403 (“Rule
403”) that the sample guns could mislead the jury into thinking the
demonstrative guns were the guns from the crime, when in fact, the
actual guns were never recovered. Robinson also argued that the
AR-15 demonstration was cumulative because photos of Moore’s AR-
15 were in evidence. The State responded that the demonstration of
the .380 pistol was relevant to show malice aforethought by
demonstrating the steps required to insert a magazine, chamber a
round, and apply pressure to pull the trigger and fire the gun. The
State argued that the AR-15 was relevant to rebut the defense
theory that the AR-15 was a fiction in the State’s case because the
State did not have hard evidence of it. The State argued that the size of the weapon tended to prove that Dawn would have noticed that
the gun went missing immediately and that it wasn’t the sort of
firearm that would have been misplaced or mistaken for a different
weapon. Finally, the State argued that demonstration of the
differences between the two firearms and the ammunition they both
require was relevant to show the jury that the weapons could not
have been confused for each other, and the ammunition was not
interchangeable.
The court allowed the State’s expert to present the guns and
gave the following limiting instruction to the jury:
Members of the jury, this weapon that is being presented is for demonstrative use only. It does not in any way say that this is a weapon that was used in any way in this case. It’s just for demonstration purposes so understand that.
Robinson claims that this was error, arguing that the probative
value of the display was outweighed by the likelihood that the
display would confuse the jury regarding the facts and issues
presented to them for consideration. We disagree.
A trial court has wide discretion in admitting demonstrative evidence, and a party offering such evidence must “lay a proper
foundation establishing a similarity of circumstances and
conditions.” Smith v. State, 299 Ga. 424, 435 (3) (b) (788 SE2d 433)
(2016) (citation and punctuation omitted). This requires showing
“not that the conditions of the demonstration are identical to the
actual event at issue, but that they are so nearly the same in
substantial particulars as to afford a fair comparison in respect to
the particular issue to which the test is directed.” Rickman v. State,
304 Ga. 61, 64 (2) (816 SE2d 4) (2018) (citation and punctuation
omitted). Like any evidence, demonstrative evidence is subject to
Rule 403, and should be excluded if the probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.
Applying these rules, we see no abuse of discretion in the trial
court’s admission of the demonstrative firearms. The State’s expert
laid a foundation by explaining that the bullet found in Moore’s body
came from a .380 pistol, and that the demonstrative pistol was one
of six guns that the bullet could have been fired from. The AR-15 was the same type of weapon that went missing the night of the
murder. The State’s expert explained how the demonstrative AR-15
could have been modified by adding attachments to match the
description of the missing AR-15. This testimony was sufficient to
lay a foundation of similarity.
The State argued, and the trial court accepted, that the
demonstration was at least somewhat probative to support the
State’s theory of the case and rebut the defense theory. The only
potential prejudice that Robinson points to is jury confusion over
whether the guns displayed in court were actually the guns used in
the commission of the alleged crimes. The State, the State’s expert,
Robinson, and the court all emphasized that the firearms used at
trial were not the actual firearms used in the alleged crimes, and
that the firearms associated with the alleged crimes were never
recovered. The statements made by both parties and the court
ameliorated the risk of jury confusion. See United States v. Aldaco,
201 F3d 979, 986-987 (7th Cir. 2000) (prejudice is minimized when
government made clear to the jury that the replica was not the actual weapon possessed by the defendant). Robinson has failed to
show that the trial court abused its discretion in allowing the State
to use the firearms as demonstrative aids.
(b) Robinson also claims that the trial court abused its
discretion in allowing two body-camera videos to be shown at trial.
At trial, the State made two separate presentations of body-camera
footage recorded by police officers involved in the response and
investigation of the alleged crimes.
The first video was taken by an officer during Robinson’s arrest
and shows the process of taking Robinson into custody. It shows
officers with weapons drawn, encountering Robinson lying on the
floor, placing handcuffs on Robinson, and leading him into a police
vehicle. The arresting officer testified throughout the presentation
of the video about what was occurring during the arrest. The video
was fast-forwarded to avoid playing certain portions of the video and
hearsay. The second video depicts the crime scene in the minutes
immediately following the shooting of Moore. The video shows Moore
in his home, lying in a pool of blood, with Dawn attempting to stop his blood loss while in extreme emotional distress. The video also
shows the police officer removing Moore’s two young children from
the house, placing the children in a police vehicle, and attempting to
comfort the children, who also appear to be in extreme distress.
Robinson objected to the playing of both videos.
The admissibility of crime scene photographs and video- recordings is generally governed by OCGA § 24-4-401, which defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”; by OCGA § 24-4-402, which provides that “[a]ll relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules”; and by OCGA § 24-4-403. . . . Decisions regarding relevance are committed to the sound discretion of the trial court and the exclusion of relevant evidence under Rule 403 is an extraordinary remedy that should be used only sparingly.
Morgan v. State, 307 Ga. 889, 894 (3) (838 SE2d 878) (2020)
(citations and punctuation omitted). Accordingly, body-camera video
must be relevant and probative, and its probative value must not be
substantially outweighed by any unfair prejudice. We will address
each video in turn. Distinct portions of the same video will be treated as separate videos for the purposes of our review. See id.
(i) Robinson argues that the trial court abused its
discretion in playing the arrest video because it provided no
information that was not otherwise available through prior
testimony and violated Robinson’s right to be free of indicia of
guilt while in the presence of the jury. The video showed
officers with weapons drawn, placing handcuffs on Robinson
and leading him into a police vehicle.
The State argues that the arrest video was relevant because
Robinson’s flight demonstrated consciousness of guilt. See McClain
v. State, 303 Ga. 6, 9 (1) (810 SE2d 77) (2018) (flight from the crime
scene reflects consciousness of guilt). The State also argues that the
video was relevant to show Robinson’s demeanor to rebut his
argument that he was a scared 16-year-old who ran away in panic
and to corroborate officer testimony.
The arrest took place over a month after Moore’s death, and
the video did not show Robinson’s flight; it did not provide any
evidence of Robinson’s guilt or demeanor at the time he fled to Waycross. But even if the trial court abused its discretion in
admitting the arrest video, any error was harmless. “The test for
determining nonconstitutional harmless error is whether it is highly
probable that the error did not contribute to the verdict.” Kirby
v. State, 304 Ga. 472, 478 (3) (c) (819 SE2d 468) (2018) (citation and
punctuation omitted). See also OCGA § 24-1-103 (a) (“Error shall
not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected[.]”). “In
determining whether the error was harmless, we review the record
de novo and weigh the evidence as we would expect reasonable
jurors to have done so.” Kirby, 304 Ga. at 478 (3) (c) (citation and
punctuation omitted).
The jury heard testimony that Robinson was arrested for
murder and also saw him sitting at the defendant’s table. And given
the compelling evidence against Robinson described above,
including eyewitness testimony and Robinson’s own inculpatory
statements, it is highly probable that the arrest video alone did not
contribute to the verdict. See Morgan, 307 Ga. at 898 (3) (e). (ii) Next, Robinson argues that the trial court
abused its discretion in playing the crime scene video because
it had no probative value, and that its only purpose was to
inflame the jury’s prejudice against him. Specifically, he argues
that the video was unnecessary to establish any new evidence
for the jury, as the State established Moore’s identity within
the first five minutes of trial, and the State elicited detailed
descriptions of the crime scene from witnesses.
The portion of the video showing Moore lying in his home, while
gruesome, was relevant to show his location and condition
immediately following the shooting. It was also relevant to
corroborate the witness testimony regarding the condition of the
crime scene and Dawn’s testimony regarding her attempts to tend
to Moore. See Davis v. State, 306 Ga. 140, 145 (3) (b) (829 SE2d 321)
(2019) (video of deceased victim relevant to show manner of death
and to corroborate witness testimony). Robinson points only to Rule
403 to support his claim, but other than noting the gruesome nature
of the video, he fails to explain how this portion of the video was unfairly prejudicial to him. “[P]hotographic evidence that fairly and
accurately depicts a body or crime scene and is offered for a relevant
purpose is not generally inadmissible under Rule 403 merely
because it is gruesome.” Plez v. State, 300 Ga. 505, 508 (3) (796 SE2d
704) (2017). The same is true of crime scene videos. Davis, 306 Ga.
at 145 (3) (b) (applying Plez to gruesome videos of deceased victim);
see also Varner v. State, 306 Ga. 726, 729 (2) (a) (832 SE2d 792)
(2019) (prejudice of video showing victim lying on ground with blood
flowing from head did not outweigh probative value of showing
crime scene and victim’s injuries and corroborating witness
testimony). It is a close call, because the video had limited probative
value, but Robinson has not shown that the probative value of the
video was substantially outweighed by the unfair prejudice of the
video. Thus, Robinson has not shown that the trial court abused its
discretion in admitting this portion of the video.
By contrast, the last three minutes of the video showed little of
the home and yard, nothing of Moore, and focused primarily on the
emotional turmoil of Moore’s five-year-old daughter and seven-year- old son. In this portion of the video, the officer picks up the crying
children and takes them outside to a patrol car. The young children
asked the officer, “who shot my daddy?” and repeatedly said, “I want
my daddy.” The prosecutor repeated these requests and questions
from the children in opening and closing arguments and
acknowledged to the jury the prosecutor’s purpose in introducing the
evidence:
I just want to stir your emotion? Yeah, I do. There’s no bones about it because I want you to feel the emotion that Dawn Moore felt. I want you to feel the emotion that [Moore’s son] felt, that [Moore’s daughter] felt, as their daddy lay gunned down six feet away from them by that man sitting right there.3
This portion of the video did not have even the remotest shred of
3 Robinson’s counsel raised no objection to this clearly inappropriate argument, which would have been objectionable even without the accompanying body-camera video. See Martin v. State, 298 Ga. 259, 280-281 (7) (c) (779 SE2d 342) (2015) (State’s argument urging the jury to “embrace” and “feel” compassion for the victims was inappropriate, because “‘compassion’ for the victims should have played no part in the jury’s decision”), disapproved of on other grounds by Willis v. State, 304 Ga. 686, 706 n. 3 (820 SE2d 640) (2018); see also Smith v. State, 288 Ga. 348, 355–356 (10) (b) (703 SE2d 629) (2010) (“[W]e must remind all prosecutors in this State that it is not their job to pursue stunts and antics during their closing arguments that are designed merely to appeal to the prejudices of jurors[.]”). relevance. See Morgan, 307 Ga. at 896 (3) (b) (video of police officer
attempting to revive drowned child victim did not have probative
value). Even viewing the video in the light most favorable to
admission, there was no conceivable probative value to the video, so
the probative value was substantially outweighed by the danger of
unfair prejudice from its emotionally charged content. Admitting the
last three minutes of the recording was plainly an abuse of
discretion, particularly when considered in light of the State’s
problematic closing argument. Id. at 897-898 (3) (d).
We have reviewed the trial transcript de novo to assess
whether the trial court’s abuse of discretion was likely to affect the
jury’s verdict. See Kirby, 304 Ga. at 478 (3) (c). Our review of the
trial transcript reveals that the video was admitted for no purpose
other than to inflame the prejudice of the jury. The prosecutor went
so far as to tell the jurors that he showed this portion of the video
for its emotional impact. Compare Morgan, 307 Ga. at 895-898 (3)
(a)-(e) (video of officers performing CPR on a child’s lifeless body was
harmless despite significant prejudice when the video was introduced to show the manner of the child’s death, the state of the
home where the child was found, and the deliberate nature of her
killing). It is more likely that harm resulted from the video’s
erroneous admission when the video had no other purported
purpose. On the other hand, the trial court instructed the jury that
closing argument was not evidence and that they should not “show
favor or sympathy to one party or the other,” and of course, qualified
jurors are presumed to follow trial court instructions.4 See Womac v.
State, 302 Ga. 681, 683 (2) (808 SE2d 709) (2017). And the video
played a minor role in the State’s case, given the evidence against
Robinson. The evidence of Robinson’s guilt was particularly strong,
including (1) Wilcox’s testimony that he saw Robinson shoot Moore,
(2) Dawn and Murphy’s testimony corroborating much of Wilcox’s
testimony, (3) Robinson’s statements to Porter on the night of
Moore’s death that he “just shot somebody,” (4) Robinson’s
statements to Cobb confessing to the crime, and (5) Robinson’s flight.
4 This is not to suggest that the judge should not have stopped the prosecutor’s objectionable argument, but Robinson does not challenge this on appeal. This case is a close call due to the complete lack of probative value
for which this video could have been admitted, but ultimately, we
conclude that the admission of this portion of the video was harmless
in the light of the compelling evidence of Robinson’s guilt.5
3. Robinson also argues that his trial counsel was ineffective in
two ways. We disagree.
For Robinson to prevail on either of his ineffectiveness claims,
he must show both that trial counsel’s performance was
constitutionally deficient and that Robinson was prejudiced by this
deficient performance. See Strickland v. Washington, 466 U.S. 668,
687 (104 SCt 2052, 80 LE2d 674) (1984); Mims v. State, 304 Ga. 851,
854-855 (2) (823 SE2d 325) (2019). “To establish deficient
performance, [Robinson] must overcome the strong presumption
5 Our conclusion remains the same even after considering the harm caused by this erroneous admission in the light of the trial court’s lesser error in admitting the arrest video. See State v. Lane, 308 Ga. 10, 13 (1) (838 SE2d 808) (2020). Although we hold in this case, as we did in Morgan, that the other evidence of the defendant’s guilt was strong enough to render harmless the erroneously admitted portions of an officer’s body-camera video recording, that will not always be so. The admissibility of these sorts of recordings — and each portion of them — must be considered with care. that his . . . counsel’s conduct falls within the broad range of
reasonable professional conduct and show that his counsel
performed in an objectively unreasonable way” in the light of all of
the circumstances. Smith v. State, 296 Ga. 731, 733 (2) (770 SE2d
610) (2015) (citation and punctuation omitted). To establish
prejudice, Robinson must show 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. Robinson must satisfy both prongs of the Strickland test,
and if he fails to establish one prong, we need not examine the other.
See Smith, 296 Ga. at 733 (2). In reviewing either component of the
inquiry, all factual findings by the trial court will be affirmed unless
clearly erroneous. Id.
(a) Robinson claims his trial counsel was ineffective for failing
to object to the letter written by fellow inmate Anthony Cobb being
made available to the jury for review during deliberations.6
6 In the handwritten letter, Cobb asked to talk with the State about a murder
case in exchange for help getting out of jail. He said that Robinson told him Robinson argues that sending this letter out with the jury was a
violation of the “continuing witness rule.” Robinson is wrong. Cobb’s
letter was “not written testimony and did not derive its evidentiary
value solely from the credibility of its maker. Instead, it was original
documentary evidence, and was properly allowed to go out with the
jury.” Foster v. State, 294 Ga. 383, 385 (5) (754 SE2d 33) (2014)
(citation and punctuation omitted); see also Young v. State, 292 Ga.
443, 446 (3) (b) (738 SE2d 575) (2013) (a letter from jailhouse
informant did not violate continuing witness rule because it “was
original documentary evidence of the attempts by the informant to
provide information to the district attorney,” not “the reduction to
writing of an oral statement, nor was it a written statement
provided in lieu of testimony”). Because the trial court properly
would have overruled a continuing witness objection, trial counsel
was not deficient for failing to raise such an objection, and thus was
everything that happened the day of the murder. Cobb’s letter also stated, consistent with his testimony at trial, that he feared for his life because Robinson told members of the Bloods gang that Cobb’s name appeared in documents related to Robinson’s case. not ineffective. See Grier v. State, 305 Ga. 882, 886 (2) (a) (828 SE2d
304) (2019) (trial counsel is not ineffective for failing to object when
such objection would be without merit).
(b) Robinson also claims that trial counsel was ineffective for
failing to object to aspects of a visual aid used by the State in closing
arguments. In particular, Robinson claims that the visual aid was
objectionable due to its use of a photo of him, certain testimony
elicited during trial, and the word “guilty.”
The visual aid is not in the record. At the motion for new trial
hearing, trial counsel testified the visual aid consisted of “a picture
of [Robinson]’s Facebook profile,” with the word “guilty” underneath
it, along with “phrases attributed to him by witnesses saying things
. . . that were incriminatory, incriminating.” Counsel said he
specifically recalled some of the statements on the visual aid, but
was unsure of others, explaining, “[m]y memory’s a little fuzzy ‘cause
it was about a year ago and it was not up there for very long.” 7 On
7 Counsel testified, “I specifically recall, ‘This is the sh*t I do,’ and I think,
‘I just shot that man.’ I do not recall if the longer phrase was included.” cross-examination, trial counsel testified that all the statements on
the screen were statements that came into evidence through the
testimony of witnesses during the course of the trial. But on appeal,
Robinson argues that the visual aid included “unsubstantiated
claims” and “blended facts, inferences, and speculation from trial.”
The State conceded in its briefs that in its closing arguments,
it “argued the evidence proves that the appellant is guilty and placed
that word on a slide with his Facebook picture which was admitted
into evidence.” But the State maintained that all the phrases from
the slide were admitted into evidence during the course of the trial.
The entirety of the exact statements included on the slide is not in
the record. “[W]here the transcript does not fully disclose what
transpired in the trial court, the burden is on the complaining party
to have the record completed pursuant to OCGA § 5-6-41. . . . When
this is not done, there is nothing for the appellate court to review.”
Glass v. State, 289 Ga. 542, 545 (2) (712 SE2d 851) (2011) (citations
and punctuation omitted). For the purposes of this appeal, we can
rely only on what is in the record and what has been conceded — the use of the word “guilty” and Robinson’s Facebook photo, which had
previously been admitted into evidence, and some additional
statements by Robinson that had already separately been admitted
into evidence.
“[T]o establish that trial counsel was deficient, [Robinson] has
to show that no reasonable attorney would have failed to object to
the prosecutor’s argument.” Chavez v. State, 307 Ga. 804, 811 (2) (b)
(837 SE2d 766) (2020) (citation and punctuation omitted). “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, 296 Ga. at 735-736 (2) (b) (citations and
punctuation omitted). “[I]n the absence of evidence to the contrary,
counsel’s decisions are presumed to be strategic and thus
insufficient to support an ineffective assistance of counsel claim.”
Washington v. State, 285 Ga. 541, 543 (3) (a) (i) (678 SE2d 900)
(2009).
Co-counsel testified at the motion for new trial hearing that they did not object due to timing, as the visual was up for only a
short period at the very end of the State’s closing argument. Again,
it can be reasonable strategy on the part of trial counsel to remain
silent during closing arguments and “allow the potentially
inappropriate antics of the prosecutor to backfire.” Smith v.
State, 288 Ga. 348, 356 (10) (b) (703 SE2d 629) (2010). See also
Anderson v. State, 350 Ga. App. 369, 382 (4) (c) (i) (829 SE2d 453)
(2019) (court will not second-guess trial counsel’s decision “not [to]
object during closing arguments unless the remarks are egregious”).
Robinson has not shown that it was patently unreasonable for his
trial counsel not to object to the prosecutor’s visual aid. Accordingly,
he has not shown ineffective assistance of trial counsel in this
regard.
Judgment affirmed. All the Justices concur.
DECIDED APRIL 20, 2020. Murder. Ben Hill Superior Court. Before Judge Chasteen. Conger & Smith, Gregory D. Smith, for appellant. Bradford L. Rigby, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.