Sauder v. State

901 S.E.2d 124, 318 Ga. 791

• Court: Supreme Court of Georgia
• Decided: April 30, 2024
• Docket: S24A0011
• Status: Published

Opinion

318 Ga. 791 FINAL COPY

S24A0011. SAUDER v. THE STATE.

WARREN, Justice.

Appellant Frederick Sauder was convicted of malice murder

and other crimes in connection with the armed robbery of Wayne

Alexander on August 4, 2016, and his shooting death several days

later, on August 9 or 10.1 In this appeal, Sauder contends that the

1 In December 2017, a White County grand jury indicted Sauder for the

following counts related to the August 4 crimes: armed robbery, aggravated assault, burglary, two counts of possession of a firearm during the commission of a felony (based on aggravated assault and burglary), and possession of a firearm by a convicted felon. Sauder was also indicted for the following crimes related to the shooting on August 9 or 10: malice murder, two counts of felony murder (based on aggravated assault and burglary), aggravated assault, burglary, three counts of possession of a firearm during the commission of a felony (based on malice murder, aggravated assault, and burglary), and possession of a firearm by a convicted felon. The counts of possession of a firearm by a convicted felon were bifurcated. The remaining counts were tried before a jury from February 11 to 19, 2019, and the jury found Sauder guilty of those counts. The bifurcated counts were then nolle prossed. The trial court sentenced Sauder to serve life in prison for malice murder, 20 consecutive years for armed robbery, 20 concurrent years for burglary, and five consecutive years each for four of the counts of possession of a firearm during the commission of a felony (based on burglary on August 4 and malice murder, aggravated assault, and burglary on August 9 or 10). The remaining counts were vacated or merged. See Dixon v. State, 302 Ga. 691, 698 (808 SE2d 696) (2017). Sauder filed a timely motion for new trial, which he later amended four times through evidence presented at his trial was legally insufficient to support

several of his convictions. He also claims that the trial court abused

its discretion by admitting into evidence an excerpt of a phone call

he made while in jail awaiting trial, that the court committed

several instructional errors, that the State failed to disclose evidence

that two witnesses had “deals” in exchange for their testimony at

trial, and that his trial counsel provided constitutionally ineffective

assistance in several respects. Finally, he contends that the

cumulative effect of these alleged errors and deficiencies entitles

him to a new trial. As we explain below, we vacate Sauder’s

conviction for possession of a firearm during the commission of

aggravated assault to correct a merger error, but we affirm his other

convictions.

1. The evidence presented at Sauder’s trial showed the

following. In 2016, 66-year-old Alexander, who was in poor health

new counsel. After an evidentiary hearing, the trial court denied the motion in June 2023. Sauder filed a motion for reconsideration, which the trial court also denied. He then filed a timely notice of appeal, and the case was docketed to the term of this Court beginning in December 2023 and orally argued on January 10, 2024. 2 and had dementia, lived alone in a mobile home on his property in

Cleveland, Georgia. Joshua Cunningham lived on a farm adjacent

to Alexander’s property with several members of his family and his

girlfriend, Heather Holland. Cunningham and Holland often hung

out and smoked methamphetamine with Sauder, Luke McClure,

and McClure’s wife—all of whom also stayed on the farm.

On August 4, 2016, Cunningham, Holland, Sauder, and his

friend Justin Davis were at the farm when one of them “pointed out”

Alexander’s mobile home and mentioned that it was “abandoned.”

They walked to the home, peered in the windows, and eventually

walked back to the farm. According to Davis, he and Sauder

discussed going to the mobile home again later. That night, they

returned to Alexander’s property, carrying Sauder’s shotgun and

tools “in case [they] needed to break in.” They smoked

methamphetamine in Alexander’s yard and then checked the doors

to the mobile home, which were locked. They attempted to pry open

a door, and Sauder kicked a sliding door several times before

Alexander opened the door. They walked past Alexander, who said

3 nothing.2 Sauder, who was holding his shotgun, told Alexander to sit

down.

Sauder took Alexander’s wallet, while Davis searched the home

and gathered eight to ten guns, which he found in Alexander’s

closets, and a lockbox, which he found under Alexander’s bed. Davis

then took a power saw and some climbing gear from Alexander’s

outdoor shed; he loaded those items, the guns, and the lockbox into

Sauder’s car. At some point, Davis noticed that Alexander’s arm was

bleeding; he asked Sauder what happened, and Sauder said that

Alexander “came at him.” As Sauder and Davis tried to leave,

Sauder’s car got stuck in Alexander’s muddy driveway. Sauder

called Cunningham, and he and Holland soon arrived and towed

Sauder’s car out of the driveway. Sauder then dropped off Davis at

his house. Davis kept two guns, the saw, and the climbing gear, and

Sauder kept the remaining items. The next day, Sauder asked Davis

2 Davis also testified that Alexander “didn’t even really care” that Sauder

and Davis came into the home; Alexander did not “try to resist or do anything” when they came in; and Davis “figured he was probably on painkillers or something. Just out of his mind . . . .”

4 if he wanted to return to Alexander’s home, but Davis said, “No.”

Sauder told Davis that “he wanted to homestead the place,” which

Davis understood to mean that Sauder wanted to claim Alexander’s

property for himself. Sauder said that he knew some people who

could “get rid of” Alexander.3

According to Cunningham, a few days later, on August 8,

Sauder, who was a convicted felon and thus unable to purchase a

gun, asked Cunningham to accompany him to a pawn shop to trade

four guns that Sauder had for a new firearm. Cunningham agreed,

and later that day, he and Sauder went to the pawn shop, and

Cunningham traded four guns, three of which Alexander’s wife

3 Davis testified that he was charged with armed robbery, aggravated

assault, burglary, two counts of possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon in connection with the August 4 crimes; pursuant to an agreement that he would testify at Sauder’s trial, he pled guilty to armed robbery but had not yet been sentenced; the remaining charges, which could have added another 55 years in prison to his sentence, were dismissed; the maximum sentence for armed robbery was life in prison, but his plea agreement stated that his sentence would not exceed 20 years in prison; there was no agreement that the State would recommend less than 20 years; his sentencing would be “up to the judge at a sentencing hearing”; and he did not have any agreement with the State when he initially spoke to law enforcement officials on August 18, 2016, and gave a statement that was similar to his testimony at trial.

5 Melita Alexander (“Melita”) identified at trial as belonging to

Alexander, for a .22-caliber semiautomatic rifle.4 Sauder carried the

rifle out of the pawn shop, and he, Cunningham, and McClure later

shot it on the farm for “target practice[ ].”5

The next day, August 9, Melita, who was separated from

Alexander but still called him daily and kept many items at his

home, spoke to Alexander on the phone around 3:30 p.m. She called

him again around 9:30 p.m. When he did not answer, she called

several more times throughout the night but received no response.

Around 6:00 p.m. the next day, August 10, Melita and her boyfriend

went to Alexander’s home to check on him. They saw tire tracks in

4 The owner of the pawn shop testified that he did not remember whether

Sauder was with Cunningham during the transaction. However, a GBI agent who interviewed the owner on August 11, 2016, testified that the owner said that a man who matched Sauder’s description was with Cunningham and that, when shown a photo of Sauder, the owner identified him as the man with Cunningham.

5 Cunningham testified that he pled guilty to making a false statement,

theft by receiving stolen property, and theft by deception in connection with the pawn shop transaction; the maximum sentence he could have received was 25 years in prison; in exchange for his testimony, he was sentenced as a first offender to five years’ probation and a $1,500 fine; and when an investigator initially interviewed him before he was charged, he recounted a story similar to his testimony at trial. 6 the driveway, and they noticed that the door to Alexander’s shed,

which was normally locked, was ajar. When Melita went inside the

mobile home, she saw near the door several of her musical

instruments, which she typically kept in a closet. The home was

“ransacked.” Melita noticed jewelry boxes and several empty mason

jars, in which Alexander typically kept coins, on the floor in the

bedroom, and several drawers were open. Alexander, who was dead

and “stiff,” was slumped over on the couch with a jacket covering his

head. Investigators who responded to Melita’s 911 call found “pry

marks” on one of the doors to the mobile home and a lock that had

been cut off the outdoor shed. They collected four .22-caliber shell

casings and two .22-caliber bullets from the scene.

According to Cunningham, Holland, and McClure, on August

10 (the day Alexander’s body was found), Sauder was carrying

around a large number of coins.6 Holland and McClure’s wife took

the coins to a bank and converted them to $125 in cash, and

6 Davis testified that neither he nor Sauder took a significant amount of

coins from Alexander on August 4. 7 McClure’s wife used the money to rent a motel room.

In addition, Davis testified that at some point, Sauder told him

that he “watched” Alexander’s “ex-wife shoot him”; Cunningham

testified that Sauder told him at some point that he went inside

Alexander’s home and Alexander “was already dead”; and McClure

testified that Sauder stated at various times that he went into

Alexander’s home, Alexander was “sick and wasn’t doing too good,”

Alexander “passed away,” and Sauder covered him with a blanket.

McClure also testified that at various points, Sauder asked McClure

to accompany him to Alexander’s home (but McClure said “no”);

Sauder had a “metal box” with paperwork in it and the guns that

Melita identified as belonging to Alexander; Sauder asked McClure

and other people who were hanging out with him if they had heard

gunshots and said that he had just shot a bear; and Sauder asked

McClure to cut his hair shortly after the murder.7

7 Cunningham and Cunningham’s mother similarly testified that Sauder

mentioned that he shot a bear around the time of the murder and that his statement did not strike them as unusual because sometimes there were bears on their property. Cunningham also testified that Sauder got a haircut around

8 On August 11, the day after Alexander’s body was found, an

investigator interviewed Cunningham, who told him about trading

the guns for the rifle at the pawn shop on Sauder’s behalf and about

later shooting the rifle at the farm. With Cunningham’s permission,

the investigator searched an area of the farm where Sauder often

stayed and found sixteen .22-caliber shell casings on the ground and

numerous partially burned documents that had Alexander’s name

on them in a burn barrel.

The next day, the investigator obtained a warrant for Sauder’s

arrest. On August 16, police officers located Sauder at a motel in

Athens. After attempting to communicate with him for about four

hours outside his motel room, officers deployed chemical munitions;

the time of the murder; McClure added that Sauder asked for a haircut because his hair was long, and McClure had been “giving him a hard time about how his hair looked.” The prosecutor asked Melita, her boyfriend, Davis, Cunningham, and McClure whether they were involved in the shooting, and they each denied it. In addition, McClure testified that he served six-and-a-half years in prison for voluntary manslaughter in connection with an unrelated crime; he was released in June 2014 (about two years before the shooting) and was on probation; he was not charged with any crimes related to Alexander’s robbery and shooting; but as a result of his “involvement in this case” and “receipt of stolen property,” his probation was revoked and he was sentenced to a nine- month-long, in-custody, substance abuse rehabilitation program. 9 Sauder finally left the room, and he was arrested. Investigators then

searched the motel room and Sauder’s car pursuant to a warrant

and found several cards and documents that had Alexander’s name

on them and numerous items that Melita identified at trial as

belonging to her or to Alexander. Under a mattress in the motel

room, investigators found the .22-caliber semiautomatic rifle.

Investigators later searched a house in which Sauder rented a

room around the time of the shooting. Behind the house, they found

a trash bag that contained a name tag displaying Sauder’s name and

documents with Alexander’s name on them. They found more

documents showing Alexander’s name in a burn barrel on the

property. In addition, the owner of the property testified that he saw

Sauder carrying the .22-caliber semiautomatic rifle.8

The medical examiner who performed Alexander’s autopsy

recovered three .22-caliber bullets from his body and concluded that

he had been shot several times from an indeterminate range, which

8 Cunningham’s mother also testified that she saw Sauder carrying the

.22-caliber rifle in the days surrounding the shooting. 10 caused his death, likely on August 9 or 10. A firearms examiner

determined that all of the shell casings that were collected from

Alexander’s home and 15 of the 16 shell casings that were collected

from Cunningham’s farm were fired from the .22-caliber

semiautomatic rifle.9

The State also presented a 40-second excerpt of a phone call

Sauder made to his mother in August 2017, while he was in jail

awaiting trial. During the call, Sauder said that “the other guy” was

in jail. When his mother asked whether the “other guy” was “ready

to point out” the person who shot Alexander, Sauder responded,

“What do you mean? He wasn’t there.” He then said that it was “hard

to explain,” and he would “not do it over the phone.” An investigator

testified that Davis was in jail at the time of the call and that the

investigator did not know whether McClure was in jail at that time.

Sauder did not testify at trial. His primary defense was that

the State did not meet its burden of proving beyond a reasonable

9 However, the examiner could not conclude whether the bullets found at

Alexander’s home, the bullets recovered from Alexander’s body, or one of the shell casings found at the farm were fired from the rifle. 11 doubt that he killed Alexander.

2. (a) Sauder contends that the evidence presented at his trial

was insufficient as a matter of constitutional due process to support

his convictions for armed robbery on August 4, 2016, and malice

murder and three counts of possession of a firearm during the

commission of a felony on August 9 or 10, 2016.10 This claim fails.

In evaluating the sufficiency of the evidence as a matter of

constitutional due process, we view all of the evidence presented at

trial in the light most favorable to the verdicts and consider whether

any rational juror could have found the defendant guilty beyond a

reasonable doubt of the crimes of which he was convicted. See

Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)

(1979). “‘We leave to the jury the resolution of conflicts or

inconsistencies in the evidence, credibility of witnesses, and

10 Sauder also contends that the evidence was insufficient to support the

counts of aggravated assault on August 4, possession of a firearm during the commission of that crime, and felony murder, aggravated assault, and burglary on August 9 or 10. But he was not sentenced for those crimes, so his claim regarding them is moot. See, e.g., Felts v. State, 311 Ga. 547, 551 n.7 (858 SE2d 708) (2021). 12 reasonable inferences to be derived from the facts.’” Henderson v.

State, 317 Ga. 66, 72 (891 SE2d 884) (2023) (citation omitted). A jury

is authorized to find a defendant guilty beyond a reasonable doubt

if the evidence shows either that he “[d]irectly commit[ted] the

crime” or that he was a “party thereto.” OCGA § 16-2-20. “Conviction

as a party to a crime requires proof of a common criminal intent,

which the jury may infer from the defendant’s presence,

companionship, and conduct with another perpetrator before,

during, and after the crimes.” Rooks v. State, 317 Ga. 743, 751 (893

SE2d 899) (2023) (citation and punctuation omitted). See also, e.g.,

Howard v. State, 318 Ga. 681, 684 (899 SE2d 669) (2024). “Mere

presence at the crime scene, however, is insufficient to make

someone a party to a crime.” Rooks, 317 Ga. at 751 (citation and

punctuation omitted).

Turning first to Sauder’s claim about the August 4 armed

robbery, the indictment charged him with armed robbery by using a

firearm to take Alexander’s guns. See OCGA § 16-8-41 (a) (“A person

commits the offense of armed robbery when, with intent to commit

13 theft, he or she takes property of another from the person or the

immediate presence of another by use of an offensive weapon . . . .”).

Sauder argues that the State failed to prove that he “use[d]” a

firearm to accomplish the theft because the evidence presented at

trial showed that Alexander opened the door and sat quietly while

Sauder and Davis stole his guns. But the element of “use of an

offensive weapon” in OCGA § 16-8-41 (a) is satisfied by proof that

the weapon was

used as an instrument of actual or constructive force— that is, actual violence exerted on the victim or force exerted upon the victim by operating on the victim’s fears of injury to the person, property, or character of the victim such that the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon is being used.

Green v. State, 304 Ga. 385, 389 (818 SE2d 535) (2018) (citation and

punctuation omitted). The evidence showing that Sauder held a

shotgun and ordered Alexander to sit down while Davis collected

Alexander’s guns authorized the jury to conclude that Sauder used

a firearm to accomplish the theft of the guns. Thus, the evidence was

constitutionally sufficient to support Sauder’s conviction as a party

14 to the crime of armed robbery. See Jackson, 443 U.S. at 319; OCGA

§ 16-2-20 (defining parties to a crime). See also Green, 304 Ga. at

389 (holding that evidence that the appellant “pulled out a gun and

asked [the victim] what he had in his pockets” was sufficient to prove

that the appellant used an offensive weapon within the meaning of

OCGA § 16-8-41 (a)); Bass v. State, 356 Ga. App. 862, 867 (849 SE2d

718) (2020) (holding that evidence that the appellant “held [a] gun

in his hand” while he took items from the victim was sufficient to

support his armed robbery conviction).

As to the crimes on August 9 or 10, the evidence indicated that

after Sauder and Davis stole guns from Alexander, Sauder

mentioned “get[ting] rid of” Alexander; Sauder enlisted

Cunningham to trade the stolen guns for a .22-caliber

semiautomatic rifle—the gun used to shoot and kill Alexander days

later; Sauder admitted that he returned to Alexander’s home and

was there at the time of the shooting; after the murder, Sauder was

carrying coins and many other items that belonged to Alexander and

Melita; and Sauder hid the rifle used in the shooting under a

15 mattress in his motel room. This evidence authorized the jury to find

Sauder guilty at least as a party to the crimes of malice murder and

possession of a firearm during the commission of a felony. See

Jackson, 443 U.S. at 319; OCGA § 16-2-20. See also Henderson, 317

Ga. at 72 (holding that evidence that connected the appellant to the

murder weapon and that he admitted he was at the scene of the

shootings was constitutionally sufficient to support his malice

murder convictions); Blevins v. State, 291 Ga. 814, 815-817 (733

SE2d 744) (2012) (concluding that evidence that the appellant was

near the crime scene at the time of the murder and shortly

thereafter tried to pawn items that belonged to the victim was

constitutionally sufficient to support his conviction for malice

murder).

(b) Sauder also claims that the evidence was insufficient as a

matter of Georgia statutory law to support his convictions for the

August 9 or 10 crimes discussed above—malice murder and three

counts of possession of a firearm during the commission of a felony—

because the circumstantial evidence failed to exclude the hypothesis

16 that Cunningham, McClure, or another one of Sauder’s friends

killed Alexander and that Sauder did not participate in the crimes.

Under OCGA § 24-14-6, “[t]o warrant a conviction on circumstantial

evidence, the proved facts shall not only be consistent with the

hypothesis of guilt, but shall exclude every other reasonable

hypothesis save that of the guilt of the accused.” Whether an

alternative hypothesis is reasonable “is usually a question for the

jury, as this Court will not disturb the jury’s finding unless it is

insufficient as a matter of law.” Reyes v. State, 309 Ga. 660, 664 (847

SE2d 194) (2020).

Assuming without deciding that the evidence related to the

August 9 or 10 crimes was entirely circumstantial, the evidence

recounted above was sufficient to authorize the jury to reject as

unreasonable Sauder’s alternative hypothesis. As discussed above,

the State presented substantial evidence showing that Sauder

participated in the shooting, including evidence that he said he

wanted to “get rid” of Alexander, he stole numerous items from

Alexander’s home after the initial robbery with Davis, he was

17 present at the time of the shooting, and he possessed the murder

weapon. Moreover, when the prosecutor asked Cunningham and

McClure if they were involved in the shooting, they squarely denied

it. But even if the jury believed that Cunningham, McClure, or

another one of Sauder’s friends shot Alexander, the jury could have

reasonably concluded that Sauder shared with the shooter a

common criminal intent to kill Alexander. Thus, the jury was

authorized to reject the hypothesis that Sauder did not participate

in the shooting and to instead find that he was guilty at least as a

party to the crimes of malice murder and possession of a firearm

during the commission of a felony. See, e.g., OCGA § 16-2-20;

Howard, 318 Ga. at 684 (explaining that “a jury may infer a

defendant’s criminal intent, and thereby find him guilty as a party

to a crime, ‘from his presence, companionship, and conduct before,

during, and after the offense’”) (citation omitted). See also Reyes, 309

Ga. at 664-665 (concluding that evidence that the appellant had

threatened to kill the victim and evidence connecting him to the

murder weapon was sufficient under OCGA § 24-14-6 to support his

18 conviction for malice murder); Blevins, 291 Ga. at 815-817 (holding

that evidence that the appellant was near the crime scene at the

time of the murder and shortly thereafter tried to pawn items that

belonged to the victim was sufficient under former OCGA § 24-4-6).11

3. Sauder claims next that the trial court abused its discretion

by admitting into evidence the 40-second audio-recorded excerpt of

the jail phone call—in which Sauder’s mother asked if the “other

guy” was ready to point out who shot Alexander and Sauder

responded, “What do you mean? He wasn’t there”—over his objection

that the excerpt was not admissible under subsection (a) of OCGA §

24-4-408 (“Rule 408”). For the reasons explained below, we disagree.

Rule 408 (a) says:

Except as provided in Code Section 9-11-68 [which relates to liability for attorney fees and litigation expenses when a party rejects a settlement offer in a tort case], evidence of: (1) Furnishing, offering, or promising to furnish; or

11 OCGA § 24-4-6, which was part of the old Evidence Code, was carried

into the current Evidence Code in identical form in OCGA § 24-14-6, and there is no materially identical federal rule of evidence, so our case law interpreting the former provision is still applicable. See Kimbro v. State, 317 Ga. 442, 446 n.6 (893 SE2d 678) (2023). 19 (2) Accepting, offering, or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount shall not be admissible to prove liability for or invalidity of any claim or its amount.[12]

Sauder argues that the excerpt of the phone call should have been

excluded under Rule 408 (a) because during other parts of the call

(which were not admitted into evidence), Sauder made statements

12 The remaining subsections of Rule 408 provide:

(b) Evidence of conduct or statements made in compromise negotiations or mediation shall not be admissible. (c) This Code section shall not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation. This Code section shall not require exclusion of evidence offered for another purpose, including, but not limited to, proving bias or prejudice of a witness, negating a contention of undue delay or abuse of process, or proving an effort to obstruct a criminal investigation or prosecution. We note that Rule 408 (a) is materially identical to Federal Rule of Evidence 408 (a) (1), which says: (a) Prohibited Uses. Evidence of the following is not admissible— on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim[.] We therefore look to federal appellate cases for guidance in interpreting the rule. See State v. Almanza, 304 Ga. 553, 556 (820 SE2d 1) (2018). See also Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 182 (8th ed. 2023) (explaining that Georgia Rule 408 follows the federal rule). 20 that he claims constituted evidence of “an offer to compromise a

disputed claim.” Specifically, Sauder repeatedly asked his mother to

call his lawyer and to reach out to the District Attorney to inform

the lawyer and the District Attorney that Sauder was “willing to

deal”; he was “ready to . . . tell [them] all [t]hat really happened”;

and he would “pick the person that did it out of a lineup” based on

“what [Sauder] saw.” Asserting that these entreaties to his mother

were an “offer to compromise” with the State, Sauder claims that the

trial court abused its discretion by admitting his statement implying

that he was present (and the “other guy” was not) when Alexander

was shot, because that statement was part and parcel of such an

offer.

Even assuming (without deciding) that Rule 408 (a) could

apply to exclude a defendant’s attempts “to compromise” with the

State by negotiating a plea deal regarding charges in a criminal

case, Sauder has not shown that the statements he made to his

21 mother fell within the ambit of the rule.13 In particular, Sauder cites

no pertinent legal authority, and we have found none, to support his

assertion that any of the statements at issue here constituted an

13 The United States Court of Appeals for the Eleventh Circuit has held

that Federal Rule of Evidence 408 applies in both criminal and civil cases. See, e.g., United States v. Arias, 431 F3d 1327, 1336-1338 (11th Cir. 2005). See also Almanza, 304 Ga. at 559 (explaining that when a rule in our current Evidence Code is materially identical to a Federal Rule of Evidence and there are conflicts “‘among the decisions of the various circuit courts of appeal in interpreting the federal rules of evidence,’ the precedent of the Eleventh Circuit prevails”) (quoting Ga. L. 2011, pp. 99, 100 § 1). But it appears that the Eleventh Circuit has not addressed whether Federal Rule of Evidence 408 could apply to exclude evidence of plea negotiations. See United States v. King, 623 Fed. Appx. 962, 965-966 (11th Cir. 2015) (addressing the admissibility of a USPS administrative complaint and cease and desist order under Federal Rule of Evidence 408 in a criminal case); Arias, 431 F3d at 1336-1338 (holding that a state administrative complaint was not admissible under Federal Rule of Evidence 408 in the appellant’s criminal proceeding); United States v. Pendergraft, 297 F3d 1198, 1211 n.8 (11th Cir. 2002) (noting that a video of a civil settlement negotiation in which the appellants participated was admissible under Federal Rule of Evidence 408 in the appellants’ criminal cases). See also Federal Practice and Procedure (Wright & Miller) § 5303 (2d ed. Feb. 2024 Update) (explaining that several federal circuit courts have held that Federal Rule of Evidence 408 bars “the use of evidence of civil compromise negotiations in a criminal prosecution,” but whether the rule applies “to plea bargaining in a criminal case when the evidence of such plea bargaining is offered in a civil or a criminal case” is “more debatable”). We also note that OCGA § 24-4-410 (4) generally prohibits the State from introducing against a criminal defendant evidence of “[a]ny statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty.” Sauder does not claim that his statements to his mother should be excluded under that rule.

22 “offer” within the meaning of Rule 408 (a).14 None of the statements

in the excerpt of the recording that was played for the jury

mentioned, or even implied, that Sauder wanted to negotiate a plea

deal with the State. And even if we were to assume that these

statements were made in connection with Sauder’s asking his

mother to contact his lawyer and the District Attorney to indicate

that he was “willing” and “ready” to make a deal, that request was

not an “offer” under Rule 408 (a) either; at best, Sauder’s request

implored his mother (who had no authority to negotiate a plea deal

on his behalf) to initiate contact with the lawyers involved in his

case to ask them to begin discussions that he hoped might lead to

his receiving an offer from the State for a negotiated plea. Simply

put, Sauder’s asking his mother to ask the State to provide a plea

deal did not constitute an offer to compromise within the meaning

14 Sauder relies primarily on Nevitt v. CMD Realty Investment Fund IV,

L.P., 282 Ga. App. 533, 535-538 (639 SE2d 336) (2006). But that case interpreted former OCGA § 24-3-37, which was part of our old Evidence Code and said, in pertinent part, “admissions or propositions made with a view to a compromise are not proper evidence.” Because that provision is not part of our current Evidence Code, Nevitt is not applicable. See Almanza, 304 Ga. at 556. 23 of Rule 408 (a).

Under these circumstances, we cannot say that the trial court

abused its discretion by concluding that the statements at issue did

not need to be excluded under that rule. See United States v.

Castillo, 615 F2d 878, 885 (9th Cir. 1980) (holding that an

appellant’s statement to a prison counselor “that he would probably

‘cop’ to a charge of manslaughter” was not excludable under Federal

Rule of Evidence 408 because the appellant could not have

negotiated a plea deal with the counselor, who had no such

authority). See also United States v. Fernandez, 559 F3d 303, 318

(5th Cir. 2009) (noting that Federal Rule of Evidence 408 “would

appear to bar” evidence of a proffer letter for the appellant’s

immunity from prosecution but that his “preceding conversation”

with law enforcement agents and “perhaps even his offer to ‘help

out’” by providing the agents more information “would remain

admissible”).15

15 As mentioned above, although Rule 408 (a) excludes evidence of certain offers and acceptances, Rule 408 (b) more broadly mandates the

24 4. Sauder contends that the trial court erred when, while

instructing the jury about the State’s burden of proof, the court

declined to give the pattern jury instruction on “grave suspicion,”

which says, “Facts and circumstances that merely place upon the

defendant a grave suspicion of the crime charged or that merely

raise a speculation or conjecture of the defendant’s guilt are not

sufficient to authorize a conviction of the defendant.” Georgia

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases §

1.20.20. This claim fails.

“In evaluating a claim that the trial court was required to give

certain jury instructions, we view the charge as a whole to determine

whether the jury was fully and fairly instructed.” Clark v. State, 315

Ga. 423, 440 (883 SE2d 317) (2023) (citation and punctuation

exclusion of “evidence of . . . statements made in compromise negotiations.” (Emphasis added.) See Equal Employment Opportunity Comm. v. UMB Bank Financial Corp., 558 F3d 784, 791 (8th Cir. 2009) (noting that several federal courts of appeal have held that Federal Rule of Evidence 408 (a) (2), which excludes “conduct or a statement made during compromise negotiations about the claim,” may apply to “certain work product, internal memos, and other materials created specifically for the purpose of conciliation, even if not communicated to the other party” and collecting cases). But Sauder does not argue that Rule 408 (b) applies here, so we do not address it. 25 omitted). Here, the trial court thoroughly instructed the jury on the

presumption of innocence, the State’s burden to prove beyond a

reasonable doubt each essential element of the charged crimes,

criminal intent, and parties to a crime. Those instructions fully

informed the jury that it was not authorized to find Sauder guilty as

a party to the crimes if the evidence presented at trial merely raised

“a grave suspicion” or “a speculation or conjecture” of his guilt.

Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal

Cases § 1.20.20. And in any event, given the evidence presented at

trial and detailed above, the substantial evidence against Sauder

raised more than a grave suspicion of his guilt, at least as a party to

the crimes. Accordingly, the trial court did not err by refusing to

instruct the jury on grave suspicion. See Welch v. State, 309 Ga. 875,

879 (848 SE2d 846) (2020) (holding that the trial court did not err

by failing to instruct the jury on grave suspicion, because the court

“‘gave complete instructions on reasonable doubt and presumption

of innocence’” and “‘(t)he trial evidence raised more than a bare

suspicion of [the appellant’s] guilt’”) (citations omitted); Jenkins v.

26 State, 281 Ga. 24, 25 (635 SE2d 714) (2006) (same). See also Clark,

315 Ga. at 440-441 (concluding that the trial court’s omission of an

instruction on grave suspicion was not a clear and obvious error

under plain-error review, because the court instructed on the

presumption of innocence, reasonable doubt, criminal intent, and

parties to a crime, which fully informed the jury that it was not

authorized to find the appellant guilty as a party to the crimes

unless he shared his co-defendant’s criminal intent to shoot the

victim).

5. Sauder argues that the trial court committed plain error by

failing to provide jury instructions on circumstantial evidence, mere

presence and knowledge, and the law requiring corroboration of an

accomplice’s testimony. As Sauder acknowledges, his trial counsel

did not object to the alleged omission of these instructions, so we

review these claims for plain error only. See OCGA § 17-8-58 (b);

Clark, 315 Ga. at 440. To establish plain error, Sauder must show

that the alleged instructional error “was not affirmatively waived;

was clear and obvious, rather than subject to reasonable dispute;

27 likely affected the outcome of the trial; and seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” Id.

(citation and punctuation omitted). “An appellant must establish all

four elements of the test in order to demonstrate plain error, so

satisfying this test is difficult, as it should be.” Id. (citation and

punctuation omitted). We address each of Sauder’s claims in turn.

(a) With respect to circumstantial evidence, Sauder argues that

the trial court failed to instruct the jury on OCGA § 24-14-6, which

as discussed above in relation to Sauder’s statutory sufficiency

claim, says, “To warrant a conviction on circumstantial evidence, the

proved facts shall not only be consistent with the hypothesis of guilt,

but shall exclude every other reasonable hypothesis save that of the

guilt of the accused.” But the trial court gave the pattern jury

instruction on direct and circumstantial evidence, which says,

among other things, that the jury “would be authorized to convict

only if the evidence[,] whether direct, circumstantial, or both[,]

excludes all reasonable theories of innocence and proves the guilt of

the [defendant] beyond a reasonable doubt.” Georgia Suggested

28 Pattern Jury Instructions, Vol. II: Criminal Cases § 1.30.20. That

instruction conveyed the substance of OCGA § 24-14-6. Thus, the

trial court did not err, much less clearly and obviously so, in this

respect. See Eubanks v. State, 317 Ga. 563, 580 (894 SE2d 27) (2023)

(holding that the trial court did not err by giving the pattern jury

instruction on circumstantial evidence rather than instructing that

the “State had to disprove any theory of innocence supported by the

evidence,” because the pattern instruction “effectively conveyed”

that point) (emphasis omitted). See also Hassan v. State, 318 Ga.

673, 678-680 (899 SE2d 693) (2024) (rejecting the appellant’s

argument that a jury instruction, which was similar to the one given

in this case, failed to advise the jury of OCGA § 24-14-6 and holding

that the instruction was not a clear and obvious error).16

16 Sauder also argues that the trial court incorrectly instructed that the

jury “should not be concerned about whether the evidence is direct or circumstantial” and that “[t]here is no legal difference in the weight [the jury] may give to either direct or circumstantial evidence,” in accordance with the pattern jury instruction on direct and circumstantial evidence. See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.30.20. But he cites no authority to support that argument, so he has not carried his burden of showing that the court clearly and obviously erred by giving those instructions. See Hassan, 318 Ga. at 679-680 (rejecting the appellant’s claim

29 (b) Sauder asserts that the trial court’s failure to instruct the

jury on mere presence and knowledge was plain error. However, as

discussed above in relation to Sauder’s claim that the court erred by

failing to instruct the jury on grave suspicion, the court thoroughly

instructed on the presumption of innocence, the State’s burden to

prove beyond a reasonable doubt each essential element of the

charged crimes, criminal intent, and parties to a crime. These

instructions adequately informed the jury that it was not authorized

to find Sauder guilty if he was merely present at the scene of the

crime or if he did not knowingly and intentionally participate in the

crimes. Thus, when evaluated in the context of the jury charge as a

whole, the trial court’s failure to expressly instruct on mere presence

and knowledge was not a clear and obvious error beyond reasonable

dispute. See, e.g., Clark, 315 Ga. at 441 (holding that the trial court

did not clearly and obviously err by failing to instruct the jury on

mere presence and knowledge, because the court instructed on the

that the trial court committed plain error by giving similar jury instructions, because he cited no controlling authority for the proposition that the instructions were erroneous). 30 presumption of innocence, the State’s burden of proof, criminal

intent, and parties to a crime).

(c) Asserting that Cunningham and McClure were accomplices

to the August 9 or 10 crimes, Sauder contends that the trial court

committed plain error by instructing the jury that the testimony of

a single witness, if believed, was sufficient to establish a fact without

also instructing that, with respect to those crimes, accomplice

testimony must be corroborated.17 See OCGA § 24-14-8; Doyle v.

State, 307 Ga. 609, 612-613 (837 SE2d 833) (2020) (explaining that

an accomplice-corroboration instruction is required when there is

slight evidence supporting a finding that a witness was an

accomplice and that a trial court’s failure to give such an instruction,

while giving a single-witness instruction, in a case where the

defendant was directly linked to the crimes through an accomplice’s

testimony, generally constitutes a clear and obvious error under

plain-error review). Assuming without deciding that Sauder did not

17 The trial court gave an accomplice-corroboration instruction with respect to the August 4 crimes. 31 affirmatively waive this argument and that there was slight

evidence that Cunningham and McClure were accomplices such that

the failure to give an accomplice-corroboration instruction regarding

the August 9 or 10 crimes was a clear and obvious error, Sauder has

not established that any such error likely affected the jury’s guilty

verdicts.

Even if an accomplice-corroboration instruction had been

given, the jury likely would have concluded that Cunningham’s and

McClure’s testimony about the August 9 or 10 crimes was

sufficiently corroborated, because the State presented a substantial

amount of corroborating evidence. In this respect, evidence that

corroborates an accomplice’s testimony

may be circumstantial and it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged. It must, however, be independent of the accomplice’s testimony and either directly connect the defendant with the crime or justify an inference that he is guilty. In addition, the independent evidence must corroborate both the identity of the defendant and the fact of his participation in the crime. In other words, corroboration of only the chronology and details of the crimes is not sufficient, and there must be some independent evidence tending to show that the defendant

32 himself was a participant in the crimes.

Crawford v. State, 294 Ga. 898, 900-901 (757 SE2d 102) (2014)

(citations and punctuation omitted). Moreover, “‘(i)t is well settled

that an accomplice’s testimony may be corroborated by the

testimony of another accomplice.’” Jackson v. State, 314 Ga. 751, 755

(879 SE2d 410) (2022) (citation omitted).

Here, Cunningham’s testimony about obtaining the .22-caliber

semiautomatic rifle—the murder weapon—for Sauder at the pawn

shop was corroborated by statements from other witnesses,

including the pawn shop owner’s statement to the GBI agent that

Sauder was with Cunningham when Cunningham obtained the gun;

testimony from Cunningham’s mother and the owner of the property

where Sauder rented a room that Sauder was carrying the rifle in

the days leading up to the murder; and evidence that investigators

found the rifle in Sauder’s motel room when he was arrested.

McClure’s testimony that, at some point, Sauder asked McClure to

accompany him to Alexander’s home was corroborated by Davis’s

similar testimony that Sauder “wanted to homestead the place” and

33 had asked Davis if he wanted to return to the home after the August

4 robbery. Cunningham and McClure both testified that Sauder was

carrying a significant number of coins on the day Alexander’s body

was found, that Sauder indicated that he had gone inside

Alexander’s home and had seen his dead body, and that he had

mentioned that he shot a bear around the time of the murder—thus

corroborating each other’s accounts on those points.18 Moreover, the

State introduced independent evidence corroborating Cunningham’s

and McClure’s testimony. Specifically, Holland testified about

Sauder’s carrying a large amount of coins; Davis testified that

Sauder said he “watched” Alexander’s “ex-wife shoot him,” implying

that Sauder was present at the time of the shooting (although he

inexplicably pointed to Melita as the shooter), and Sauder indicated

during the jail phone call that he was present when Alexander was

18 We note that Cunningham and McClure also corroborated each other’s

testimony that Sauder got a haircut around the time of the murder. And in any event, the evidence that Sauder got a haircut near the time of the murder likely had little impact on the jury’s guilty verdicts, given that McClure testified that Sauder needed a haircut and that the State presented other, more probative evidence to show that Sauder tried to evade law enforcement officials after the crimes, including evidence that Sauder fled to a motel in Athens shortly after the murder and refused to leave when investigators attempted to arrest him. 34 shot; and Cunningham’s mother testified about Sauder’s saying he

shot a bear.

In sum, given the ample evidence corroborating Cunningham’s

and McClure’s testimony about the August 9 or 10 crimes, Sauder

has not shown a reasonable probability that the outcome of his trial

would have been different had the jury been instructed under OCGA

§ 24-14-8 that an accomplice’s testimony must be corroborated. He

has therefore failed to establish plain error. See, e.g., Jackson, 314

Ga. at 755-756 (holding that the appellant could not establish that

the trial court’s failure to give an accomplice-corroboration

instruction likely affected the outcome of his trial under the third

part of the plain-error test, because multiple witnesses corroborated

that the appellant participated in the crimes); Lewis v. State, 311

Ga. 650, 665-666 (859 SE2d 1) (2021) (concluding that the trial

court’s failure to give an accomplice-corroboration instruction with

respect to certain counts in the indictment likely did not affect the

outcome of the appellant’s trial under plain-error review, because

“the State introduced a substantial amount of evidence that

35 corroborated [the alleged accomplice’s] testimony as to those

counts”). Compare Doyle, 307 Ga. at 612-614 (holding that the trial

court plainly erred by failing to instruct the jury on accomplice

corroboration where the accomplice’s testimony “was the bedrock on

which [the appellant’s] convictions rest”).

6. Sauder claims that the State violated his right to due process

under Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215)

(1963), by failing fully to disclose that Davis and McClure had

“deals” in exchange for their testimony. Specifically, Sauder argues

that although Davis testified at trial that his guilty plea agreement

stated that in exchange for his testimony, the State would

recommend that his sentence for armed robbery not exceed 20 years

in prison and there was no agreement that the State would

recommend a sentence of less than 20 years, one of the prosecutors

made a deal with Davis’s plea counsel agreeing to recommend that

Davis be sentenced to only ten years in prison. Sauder also asserts

that the State made a deal with McClure that in exchange for his

testimony, the State would not charge him for crimes related to this

36 case and would recommend lenient treatment in an unrelated

probation-revocation matter. As explained below, we conclude that

the trial court did not err by denying Sauder’s motion for new trial

on this ground. See, e.g., Hood v. State, 311 Ga. 855, 863 (860 SE2d

432) (2021) (explaining that a trial court’s factual findings regarding

a Brady claim are reviewed under a clearly erroneous standard,

while the court’s application of the law to the facts is reviewed de

novo).

It is well established that:

“The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U. S. at 87. This includes the suppression of impeachment evidence that may be used to challenge the credibility of a witness. See Giglio v. United States, 405 U. S. 150, 154-155 (92 SCt 763, 31 LE2d 104) (1972). Accordingly, the State is obligated to reveal any agreement, even an informal one, with a witness regarding criminal charges pending against the witness. To prevail on a Brady claim, a defendant must show that the State possessed evidence favorable to the defendant; the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a

37 reasonable probability exists that the outcome of the proceeding would have been different.

Hood, 311 Ga. at 863 (cleaned up). A reasonable probability of a

different result, also known as the materiality requirement, is

established when the State’s suppression of evidence “‘undermines

confidence in the outcome of the trial.’” Id. at 864 (citation omitted).

“In this analysis, we review the record de novo and weigh the

evidence as we would expect reasonable jurors to have done, rather

than viewing all the evidence in the light most favorable to the

verdicts.” State v. Thomas, 311 Ga. 407, 417 (858 SE2d 52) (2021).

So viewed, even assuming that Sauder could establish the first three

elements of his Brady claim, he has not met the materiality

requirement, because he has not shown a reasonable probability

that the outcome of his trial would have been different if the State

had disclosed information about Davis’s and McClure’s alleged

deals. See Kyles v. Whitley, 514 U.S. 419, 436 (115 SCt 1555, 131

LE2d 490) (1995) (explaining that Brady materiality is defined “in

terms of suppressed evidence considered collectively, not item by

item”). 38 Turning first to Sauder’s assertion that the State failed to

disclose an alleged agreement with Davis for a recommendation of a

ten-year prison sentence, we note that Davis testified that pursuant

to his deal with the State, he pled guilty to armed robbery—a crime

for which the maximum sentence is life in prison—with a sentence

that would not exceed 20 years; the State dismissed other charges

that could have added 55 years to his sentence; and the ultimate

sentencing decision would be “up to the judge at the sentencing

hearing.” Thus, although the jury was not informed of Davis’s

alleged deal for a ten-year sentence, it was nonetheless aware that

he had a significant incentive to cooperate with the State by

testifying against Sauder. See Hood, 311 Ga. at 861-864 (holding

that the appellant failed to prove the materiality prong of the Brady

test and explaining that although the State allegedly failed to

disclose that a witness had a deal for a sentence of 25 months and

three years of supervised release as well as the dismissal of several

felony charges, the jury was informed that he faced a sentence of 85

to 105 months and that his plea agreement said the State would

39 consider his cooperation in determining whether to recommend a

reduced sentence, so the jury was “aware that there was reason to

regard his testimony with skepticism”); Rhodes v. State, 299 Ga. 367,

369-370 (788 SE2d 359) (2016) (holding that there was no

reasonable probability that the alleged failure to disclose the terms

and extent of deals with two witnesses affected the outcome of the

appellant’s trial, because the jury was aware of their motivations to

testify to gain favor with the State).

Moreover, Davis testified, and Sauder does not dispute, that he

had no agreement with the State whatsoever when he gave a

statement to law enforcement officials about a week after the

murder in August 2016—nearly two-and-a-half years before

Sauder’s trial and more than three years before the date of Davis’s

sentencing in August 2019—that was consistent with his testimony

at trial. See Harris v. State, 309 Ga. 599, 606-607 (847 SE2d 563)

(2020) (holding that the appellant failed to establish a reasonable

probability that the outcome of his trial would have been different if

the State had disclosed information about a witness’s alleged deal,

40 because the evidence at trial showed that the witness provided a

statement to the police that was consistent with his testimony

months before the alleged date on which the witness received a

reduced sentence in exchange for his cooperation, and he testified

that he was hoping to receive a reduced sentence due to his

cooperation). For these reasons, the alleged evidence that Davis had

a deal for a ten-year prison sentence (rather than a deal for a

sentence that would not exceed 20 years) likely would not have had

a significant impact on the jury’s assessment of his credibility. See

Hood, 311 Ga. at 865-866; Harris, 309 Ga. at 606-607.

We now turn to the alleged deal between the State and

McClure. Evidence that McClure had an agreement with the State

that he would not be charged in this case and that he would receive

more favorable treatment in the probation matter likely would have

had some effect on the jury’s appraisal of his credibility, particularly

because (unlike with Davis) the jury was not aware that McClure

had any express incentive to testify against Sauder. But even if the

jury had discredited and thus discounted McClure’s testimony, it

41 would have had little effect on the jury’s view of the evidence at trial

as a whole, because his testimony was largely cumulative of other

evidence. See Hood, 311 Ga. at 865 (holding that there was not a

reasonable probability that the outcome of the appellant’s trial

would have been different if the State had disclosed evidence of a

witness’s alleged deal for a reduced sentence, because the witness’s

testimony was cumulative of other evidence at trial). See also

Sullivan v. Lockhart, 958 F2d 823, 825-826 (8th Cir. 1992)

(concluding that the appellant had not proven that it was reasonably

probable that evidence of a witness’s alleged deal would have

affected the outcome of his trial, because the witness’s testimony

was cumulative of other evidence). Specifically, McClure’s testimony

about Sauder’s carrying a large number of coins near the time of the

murder was cumulative of Holland’s similar account. McClure’s

testimony that Sauder had returned to Alexander’s home after the

August 4 robbery and had seen his dead body was largely

cumulative of Davis’s testimony to that effect, and Sauder himself

indicated during the jail phone call that he was present at the time

42 of the shooting. McClure’s testimony that Sauder had a metal box

with paperwork in it and had the guns that Melita identified as

belonging to Alexander was cumulative of Davis’s testimony that he

and Sauder stole a lockbox and guns from Alexander, and McClure’s

testimony that Sauder said he shot a bear was cumulative of

Cunningham’s mother’s testimony on that point.

We acknowledge that some of McClure’s testimony—about

Sauder’s carrying coins, returning to Alexander’s home and seeing

his body, and shooting a bear—was also cumulative of

Cunningham’s testimony, and thus corroborated Cunningham’s

account on those points. That corroboration matters in light of

Sauder’s claim, discussed in Division 5 (c), that McClure and

Cunningham were both accomplices, and that the trial court plainly

erred by failing to instruct the jury that an accomplice’s testimony

is not sufficient to establish a fact unless it is corroborated. That is:

if Cunningham’s testimony had to be corroborated because he was

an accomplice, and the only corroboration came from McClure, then

evidence that McClure had a deal with the State that would

43 undermine his credibility could qualify as material evidence under

Brady. See Thomas, 311 Ga. at 417-419 (concluding that the

appellant established the materiality prong of the Brady test,

because the State failed to disclose a deal with a witness whose

testimony “‘could be viewed as the most significant piece of

corroborating evidence offered by the State in a case where the

corroborating evidence was both slight and wholly circumstantial’”).

But that was not the case here because, as we discussed above, other

independent evidence corroborated each material aspect of

Cunningham’s story.19 Thus, even if the jury had been informed of

McClure’s alleged deal with the State and determined that it

rendered his testimony not credible, Cunningham’s testimony was

amply corroborated. In sum, McClure’s testimony, while helpful to

the State, was not a crucial component of the strong evidence

against Sauder. Compare id.

19 We note that Cunningham’s statement that Sauder got a haircut around the time of the murder was corroborated only by McClure’s testimony on that point. But as we discussed above, that statement likely had little effect on the jury’s guilty verdicts. 44 Thus, weighing the evidence as we would expect reasonable

jurors to have done, we conclude that Sauder has not established a

reasonable probability that the evidence of Davis’s and McClure’s

alleged deals with the State would have affected the jury’s guilty

verdicts. Accordingly, this claim fails. See Hood, 311 Ga. at 865-866;

Harris, 309 Ga. at 606-607.

7. Sauder contends that his trial counsel provided

constitutionally ineffective assistance in several respects. To prevail

on these claims, Sauder must establish that counsel’s performance

was constitutionally deficient and that he suffered prejudice as a

result. See Strickland v. Washington, 466 U.S. 668, 687-695 (104

SCt 2052, 80 LE2d 674) (1984); Smith v. State, 308 Ga. 81, 87 (839

SE2d 630) (2020). To prove deficient performance, Sauder must

show that his trial counsel “‘performed at trial in an objectively

unreasonable way considering all the circumstances and in the light

of prevailing professional norms,’” which requires that Sauder

overcome the “‘strong presumption’ that trial counsel’s performance

was adequate.” Smith, 308 Ga. at 87 (citations omitted). To prove

45 prejudice, Sauder must establish a reasonable probability that, but

for counsel’s deficient performance, the result of the trial would have

been different. See Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. We need not address both parts of the Strickland test

if Sauder makes an insufficient showing on one. See Smith, 308 Ga.

at 87.

(a) Sauder argues that his trial counsel was ineffective for

failing to present evidence that he claims showed that Cunningham,

McClure, or someone else could have killed Alexander. Specifically,

at the hearing on his motion for new trial, Sauder introduced GBI

reports noting the following: McClure’s wife told investigators that

at some point, Sauder and McClure walked away from the farm and

returned a couple of hours later with coins and “antique

‘knickknacks,’” McClure admitted to her that he went with Sauder

to Alexander’s property but said he did not go inside the home, and

an unidentified man told her that he went to Alexander’s home with

Sauder and saw Alexander’s dead body; Cunningham initially told

46 investigators that the .22-caliber semiautomatic rifle (the murder

weapon) belonged to him; McClure’s phone communicated with

Cunningham’s phone several times and was near the farm and

Alexander’s home on the night of August 9; investigators considered

McClure a suspect and had evidence that he was a gang member;

McClure warned his wife not to speak to investigators without a

lawyer; Cunningham threatened Holland after she spoke with

investigators, accusing her of “trying to get him locked up”; and DNA

testing on a hammer found near Alexander’s body contained DNA

profiles from Alexander and an unidentified person, and Sauder,

Davis, Cunningham, and McClure were excluded as contributors.

Sauder has failed to establish that counsel’s decision not to

present any of this evidence was so unreasonable that no competent

lawyer would have made it under the circumstances. To begin, some

of the evidence Sauder points to—including the evidence that

Sauder and McClure had coins and “knickknacks,” that McClure

admitted he accompanied Sauder to Alexander’s home, and that an

unidentified man also went with Sauder to the home and saw

47 Alexander’s body—would have suggested to the jury that Sauder

was guilty, at least as a party to the crimes. Counsel was not

deficient for deciding not to introduce this potentially inculpatory

evidence. See, e.g., Smith, 308 Ga. at 91-92 n.10 (explaining that

trial counsel’s strategy to avoid the introduction of potentially

inculpatory evidence was reasonable and rejecting the appellant’s

ineffective assistance claim).

As for the evidence Sauder claims would have indicated that

Cunningham or McClure committed the crimes, counsel testified at

the motion for new trial hearing that his theory of defense was that

the State had not established who killed Alexander or shown

“beyond a reasonable doubt that it was . . . Sauder” and that he did

not want to “point[ ] the finger” at any other particular person,

because that would “run[ ] the risk of the jury saying no, we’re pretty

convinced that person didn’t have anything to do with it.” Counsel

also testified that he believed there was not enough evidence for him

to be able to blame someone else, and that it was better to argue that

the State had not proved beyond a reasonable doubt that Sauder was

48 a principal or a party to the crimes, which was a “not uncommon

strategy of [ ] defense, depending on the quality of the evidence.” In

support of that defense theory, trial counsel asserted during his

closing argument that the “big hole” in the State’s case was that no

one knew what happened when Alexander was murdered; there

were inconsistencies in the State’s evidence; and the State had not

sufficiently explained how certain evidence proved Sauder’s guilt.

Counsel’s decision to argue that the State failed to prove beyond a

reasonable doubt that Sauder participated in the killing—rather

than presenting specific evidence that might have suggested that

Cunningham or McClure participated in the crimes but would not

have suggested that Sauder was not also a participant—was

objectively reasonable given the circumstances. See Kidwell v. State,

264 Ga. 427, 432 (444 SE2d 789) (1994) (holding that the appellant’s

trial counsel was not deficient for failing to investigate evidence of

other crimes committed by his co-indictees, because his defense

theory was that the appellant was not involved in the charged

crimes and had no knowledge of any other crimes). See also Lee v.

49 State, 318 Ga. 412, 423 (897 SE2d 856) (2024) (“‘An attorney’s

decision about which defense to present is a question of trial

strategy, and trial strategy, if reasonable, does not constitute

ineffective assistance of counsel.’”) (citation omitted).

Finally, counsel’s decision not to introduce evidence showing

that the hammer contained DNA profiles from Alexander and an

unidentified person was not unreasonable, particularly because

there was no evidence connecting the hammer to Alexander’s

shooting death. Evidence that an unidentified person may have

come into contact with a hammer in Alexander’s home at some

unknown point would not have raised a reasonable inference of

Sauder’s innocence and would not have directly connected the

unidentified person to the crimes. See Payne v. State, 314 Ga. 322,

333 (877 SE2d 202) (2022) (explaining that “‘[t]his Court has

followed the general rule that, before testimony can be introduced

that another person committed the charged crime, the proffered

evidence must raise a reasonable inference of the defendant’s

innocence and, in the absence of a showing that the other person

50 recently committed a crime of the same or a similar nature, must

directly connect the other person with the corpus delicti,’” and

holding that trial counsel did not perform deficiently by failing to

present evidence that another person’s DNA was found on a beer

bottle at the crime scene, because the evidence that the person may

have been at the crime scene at some unknown point did not raise a

reasonable inference of the appellant’s innocence) (citation omitted).

Because Sauder has not shown that his trial counsel performed

deficiently by deciding not to introduce the evidence detailed above,

he cannot establish that counsel was ineffective in this respect.

(b) Sauder claims that his trial counsel was ineffective for

failing to “take basic steps necessary to reveal the deal between the

State and [McClure].” But as discussed above in relation to Sauder’s

Brady claim, he has not established a reasonable probability that

the outcome of his trial would have been different if the State had

disclosed information about an alleged deal with McClure. Thus,

even if his trial counsel performed deficiently by failing to obtain

evidence about a deal, Sauder cannot prove prejudice under

51 Strickland. See, e.g., Harris, 309 Ga. at 607 (holding that because

the appellant could not establish the materiality element of his

Brady claim, he also could not prove prejudice for his related

ineffective assistance of counsel claim); Thomas, 311 Ga. at 417

(explaining that Brady’s materiality requirement mirrors the test

for determining prejudice in an ineffective assistance claim).

(c) Sauder contends that his trial counsel provided ineffective

assistance by failing to cross-examine McClure about the fact that

although he was sentenced for voluntary manslaughter in an

unrelated case, he had been charged with malice murder in that

case. It appears that Sauder argues that counsel should have

questioned McClure about the malice-murder charge in an effort to

elicit testimony that would contradict his earlier testimony about

the circumstances underlying his conviction, the seriousness of

which Sauder claims was “minimized.” Sauder points to McClure’s

testimony on direct examination that in the other case, he was “slap-

boxing” with the victim; they then engaged in “an actual fist fight”;

McClure’s wife tried to intervene and the victim slapped her; the

52 victim pulled out a knife and stabbed McClure three times; and

McClure stabbed him once, killing him.

We conclude that evidence that McClure was initially charged

with malice murder in that case would have had little, if any,

probative value to contradict his testimony about the facts related

to the knife fight or to disprove his claim that he was acting in self-

defense. See, e.g., Olds v. State, 299 Ga. 65, 75 (786 SE2d 633) (2016)

(explaining that “the greater the tendency to make the existence of

a fact more or less probable, the greater the probative value”). Nor

would evidence of the malice-murder charge have been probative to

show McClure’s bias in testifying for the State. McClure was

indicted for malice murder in the other case in 2008 and agreed to

plead guilty to voluntary manslaughter in 2009—more than seven

years before the crimes at issue in this case occurred and nearly ten

years before Sauder’s trial—so the malice-murder charge was no

longer pending and had been resolved for several years when

McClure testified in this case. Moreover, McClure testified about his

conviction for voluntary manslaughter and that he was still serving

53 a probated sentence for that crime—and we have already addressed

Sauder’s claim that McClure made a deal with the State for lenient

treatment in his probation-revocation matter.

Accordingly, we cannot say that trial counsel performed

deficiently by not asking McClure about the malice-murder charge

in the other case, because it was not probative to contradict his

testimony about the underlying facts of the crime in that case or to

show his bias in testifying. See, e.g., Moore v. State, 315 Ga. 263, 269

(882 SE2d 227) (2022) (explaining that “[t]he scope of an attorney’s

cross-examination is ‘grounded in trial tactics and strategy, and will

rarely constitute ineffective assistance of counsel,’” and holding that

trial counsel did not perform deficiently by failing to cross-examine

witnesses about the sentences they faced on charges that were

pending at the time of trial, because the evidence showed that the

witnesses had not received any benefit as to those charges in

exchange for their testimony) (citation omitted).

(d) Sauder claims that trial counsel was ineffective for failing

to request jury instructions on circumstantial evidence, mere

54 presence, and knowledge. As discussed above with respect to

Sauder’s claims that the trial court plainly erred by allegedly

omitting these instructions, the court properly instructed the jury

on the substance of OCGA § 24-14-6 (the circumstantial evidence

statute), and other instructions in the jury charge adequately

covered the concepts of mere presence and knowledge. Thus, counsel

did not perform deficiently in this regard. See, e.g., Kimbro v. State,

317 Ga. 442, 456 (893 SE2d 678) (2023) (concluding that trial

counsel was not deficient for failing to object to the omission of a jury

instruction on mere presence, because the trial court instructed the

jury on the presumption of innocence, the State’s burden to prove

beyond a reasonable doubt each essential element of the charged

crimes, circumstantial evidence, and criminal intent); Downey v.

State, 298 Ga. 568, 574 (783 SE2d 622) (2016) (holding that trial

counsel did not perform deficiently by failing to object to the

omission of a jury instruction on knowledge, because other

instructions sufficiently covered that concept); Pruitt v. State, 282

Ga. 30, 34 (644 SE2d 837) (2007) (explaining that trial counsel’s

55 failure to object to jury instructions that were “correct statements of

the law” was not deficient performance).20

(e) Sauder argues that trial counsel was ineffective for failing

to request an accomplice-corroboration instruction as to the August

9 or 10 crimes. Even assuming that counsel performed deficiently,

Sauder cannot establish prejudice for the same reasons discussed

above with respect to his related plain-error claim. See Payne, 314

Ga. at 329 (explaining that “‘(t)his Court has equated the prejudice

step of the plain error standard with the prejudice prong for an

ineffective assistance of counsel claim’”) (citation omitted).

20 Sauder also briefly asserts that trial counsel was ineffective for failing

to expressly mention to the jury the concepts of circumstantial evidence, mere presence, and knowledge with respect to the August 9 or 10 crimes, and that counsel should have pursued a defense of mere presence as to those crimes. But trial counsel essentially pointed to the circumstantial nature of the evidence as to the August 9 or 10 crimes during his closing argument and repeatedly asserted that the State failed to prove Sauder’s guilt beyond a reasonable doubt, which was not a patently unreasonable strategy under the circumstances. Thus, Sauder cannot prove that his counsel performed deficiently in this way, either. See Davenport v. State, 283 Ga. 171, 175 (656 SE2d 844) (2008) (explaining that defense counsel “is given wide latitude in making closing arguments” and that trial counsel is not ineffective “simply because another attorney might have used different language or placed a different emphasis on the evidence”) (citation and punctuation omitted). See also Lee, 318 Ga. at 425. 56 (f) Sauder claims that his trial counsel was ineffective for

failing to object or move for a mistrial when the prosecutor made

statements that, he claims, misled the jury about the law of parties

to a crime. We disagree.

By way of background, the State’s theory of the case at trial

was that Sauder shot Alexander, but the prosecutor also argued in

closing that even if the evidence indicated that Sauder and “a buddy”

perpetrated the shooting, the jury would be authorized to find

Sauder guilty as a party to the crimes. The prosecutor said, among

other things, that party-to-a-crime liability “means if you were

intentionally helping in a crime, then you’re part of the whole thing”;

that Sauder admitted that he “was present” when Alexander was

shot; and that Sauder may have “provided” the murder weapon to

the shooter. Sauder now argues that these statements improperly

implied that the jury would be authorized to find him guilty as a

party to all of the charged crimes even if he committed only some of

them and even if he was merely present at the crime scene.

The prosecutor’s statements, taken in context, did not

57 misrepresent the law. Under OCGA § 16-2-20 (b) (3), a person is a

party to a crime if he “[i]ntentionally aids or abets in the commission

of the crime.” The prosecutor’s explanation that a person is a party

if he was “intentionally helping in a crime” essentially conveyed that

point. And a reasonable juror likely would have understood the

prosecutor’s following reference to being “part of the whole thing” as

an assertion that someone who intentionally helps commit a crime

is part of that particular crime, because immediately before and

after that statement, the prosecutor’s arguments focused only on

party-to-a-crime liability regarding the murder.

In addition, by mentioning Sauder’s presence at the crime

scene and his potentially providing the murder weapon to the

shooter, the prosecutor pointed to reasonable inferences from the

evidence supporting Sauder’s involvement in the murder. Indeed,

the prosecutor also argued that the evidence showed that the .22-

caliber semiautomatic rifle was the murder weapon, that Sauder

purchased it, and that he had it with him in the days surrounding

the shooting. See, e.g., Howard, 318 Ga. at 684 (explaining that “a

58 jury may infer a defendant’s criminal intent, and thereby find him

guilty as a party to a crime, ‘from his presence, companionship, and

conduct before, during, and after the offense’”) (citation omitted).

The prosecutor did not argue that the jury would be authorized to

find that Sauder was a party to the crimes even if he lacked the

requisite criminal intent to commit them. Moreover, the prosecutor

told the jurors that the trial court would instruct them on the law of

parties to a crime, and during the final charge, the trial court

accurately instructed on that legal concept and criminal intent. The

court also advised the jury that the lawyers’ closing arguments were

not evidence.

Because the prosecutor’s statements, viewed in the context of

his argument as a whole, were not improper, Sauder’s trial counsel

did not perform deficiently by not objecting to them or moving for a

mistrial on that basis. See Faulkner v. State, 295 Ga. 321, 326-327

(758 SE2d 817) (2014) (holding that trial counsel was not deficient

for failing to object to the prosecutor’s statement that the jury could

find the appellant guilty as a party to the crimes “because he aided

59 or abetted the commission of those crimes when he helped the

shooter move [the victim], rob him, and get away,” as that statement

was not legally improper, and noting that even if an objection might

have had some merit, a reasonable lawyer could have decided to rely

on the trial court’s charge on parties to a crime, rather than make

an objection of questionable merit). See also Lee v. State, 317 Ga.

880, 887 (896 SE2d 524) (2023) (explaining that this Court considers

closing arguments in context; prosecutors are granted “‘wide

latitude’” in closing argument and may “‘argue reasonable

inferences from the evidence’”; and “‘(w)hether 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’”)

(citations omitted).21

21 Sauder also baldly asserts in his brief that his trial counsel was ineffective because he “failed to make the adversarial testing process work at trial,” failed “to formulate or articulate a theory of defense,” failed “to make an effective opening statement,” failed “to cross-examine the State’s witnesses effectively,” failed “to point out weaknesses in the State’s evidence,” failed “to present available evidence which would have raised doubt concerning

60 8. Sauder contends that the combined prejudicial effect of the

errors and deficiencies he alleges entitles him to a new trial. See

State v. Lane, 308 Ga. 10, 17 (838 SE2d 808) (2020). As discussed

above, we have assumed (without deciding) that the trial court

committed a clear and obvious error by failing to give an accomplice-

corroboration instruction as to the August 9 or 10 crimes; that

counsel performed deficiently by failing to request such an

instruction; that the State suppressed evidence of deals with Davis

and McClure; and that counsel was deficient for failing to discover

[Sauder’s] guilt,” failed “to object to inadmissible evidence offered by the State,” failed “to object to improper statements made by the [prosecutor] in closing argument,” failed “to request jury instructions to support the theory of defense obviously presented by the evidence,” failed to object “to incorrect or incomplete jury instructions,” failed “to articulate the obvious defense presented by the evidence (mere presence at the scene of a crime),” and failed “to make an effective closing argument.” To the extent Sauder has not identified specific instances of these alleged deficiencies, he has not carried his burden of showing that his lawyer performed deficiently. See, e.g., Wallace v. State, 296 Ga. 388, 392 (768 SE2d 480) (2015) (holding that the appellant had not shown that his trial counsel performed deficiently by failing to file a motion to suppress identification evidence, because he did not specify which witnesses gave objectionable testimony or why it was inadmissible and explaining that “‘[i]t is not this Court’s job to cull the record on behalf of the (appellant) to find alleged errors’”) (citation omitted). And in any event, Sauder makes no specific argument and cites no authority to support any of these claims, so we do not address them. See former Supreme Court Rule 22; Sinkfield v. State, 318 Ga. 531, 547 n.11 (899 SE2d 103) (2024). 61 McClure’s deal. Even assuming that the alleged instructional error

and alleged suppression under Brady are the sorts of errors that

could be assessed cumulatively—an issue we need not decide here—

Sauder has not established a reasonable probability that these

assumed defects and deficiencies, taken together, affected the

outcome of his trial.

As we have explained, an accomplice-corroboration instruction

probably would not have altered the jury’s verdicts as to the crimes

on August 9 or 10, because Cunningham’s and McClure’s testimony

was amply corroborated by other, independent evidence. The jury

learned that Davis had a substantial deal with the State and that

he had given investigators a statement that was consistent with his

testimony long before any deal had arisen, so additional evidence

about the deal likely would not have swayed the jury. And although

evidence of an alleged deal between the State and McClure may

have helped Sauder discredit McClure, his testimony was

cumulative of other evidence and thus was not critical to prove

Sauder’s guilt or to corroborate Cunningham’s account of the August

62 9 or 10 crimes. In sum, it is not reasonably probable that the

minimal prejudice from these assumed defects and deficiencies, even

if viewed together, affected the outcome of Sauder’s trial,

particularly in light of the other significant evidence of his guilt. See,

e.g., Hood, 311 Ga. at 867-868 (assuming without deciding that the

alleged suppression of a deal between a witness and the State under

Brady and the trial court’s alleged clear error in failing to give a

confession-corroboration instruction should be assessed together

under Lane and concluding that the appellant had not established

cumulative prejudice, “[g]iven the quantum and strength of the

evidence, independent of [the witness’s] testimony and corroborative

of any single confession [the appellant] made”).

9. Finally, although Sauder does not raise the issue, we have

noticed a merger error with respect to his sentencing. The jury found

Sauder guilty of two counts of possession of a firearm during the

commission of a felony (based on aggravated assault and burglary)

on August 4, and three counts of possession of a firearm during the

commission of a felony (based on malice murder, aggravated assault,

63 and burglary) on August 9 or 10. The trial court sentenced him to

serve five consecutive years in prison each for four of the firearm-

possession counts (based on burglary on August 4 and malice

murder, aggravated assault, and burglary on August 9 or 10) and

merged the firearm-possession count based on aggravated assault

on August 4. The court erred by sentencing Sauder on the firearm-

possession count based on aggravated assault on August 9 or 10.

Under OCGA § 16-11-106 (b) (1) and (2), a person commits the

crime of possession of a firearm during the commission of a felony if

he has “on or within arm’s reach of his . . . person a firearm . . .

during the commission of” certain felonies, including “[a]ny crime

against or involving the person of another” or “[t]he unlawful entry

into a building or vehicle.” And as to sentencing, we have explained

that

where multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree, as provided under OCGA § 16-11-106 (b) (1), and additionally once for firearm possession for every crime enumerated in [paragraphs] (b) (2) through (5).

64 State v. Marlowe, 277 Ga. 383, 386 (589 SE2d 69) (2003). As to the

crime spree on August 9 or 10, the trial court should have sentenced

Sauder for only one of the firearm-possession counts related to

Alexander (as well as the count related to burglary), so the court

erred by failing to merge the firearm-possession count based on

aggravated assault into Sauder’s conviction for firearm-possession

based on malice murder. We therefore vacate Sauder’s conviction

and sentence for possession of a firearm during the commission of

the felony of aggravated assault. See, e.g., Welch, 309 Ga. at 880-881

(vacating the appellant’s conviction and sentence for possession of a

firearm during the commission of the felony of aggravated assault of

the victim, because it should have merged into his conviction for

firearm-possession based on the malice murder of the victim).22

22 We note that the trial court also erred by merging the firearm- possession count based on aggravated assault on August 4. But that error benefited Sauder; the State has not raised it by cross-appeal; and we see no exceptional circumstances that would warrant the exercise of our discretion to correct it. See Dixon, 302 Ga. at 696-698 (explaining that even when no party raises a merger error, we have discretion to correct it on direct appeal, but when the error benefits the defendant and the State fails to raise it by cross- appeal, we exercise our discretion to correct the error only in exceptional circumstances). 65 Judgment affirmed in part and vacated in part. All the Justices concur.

Decided April 30, 2024.

Murder. White Superior Court. Before Judge Matthews, Senior

Judge.

Wade M. Crumbley, for appellant.

W. Jeffrey Langley, District Attorney, Gregory A. Futch,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.

Malcolm, Senior Assistant Attorneys General, Faith D. Worley,

Stephany J. Luttrell, Assistant Attorneys General, for appellee.