Sinkfield v. State

899 S.E.2d 103, 318 Ga. 531

• Court: Supreme Court of Georgia
• Decided: March 5, 2024
• Docket: S23A1201
• Status: Published

Opinion

318 Ga. 531 FINAL COPY

S23A1201. SINKFIELD v. THE STATE.

BOGGS, Chief Justice.

Appellant Remond Sinkfield challenges his convictions for

felony murder and other crimes in connection with the death of Levi

Atkinson, who either was pushed or jumped out of a moving vehicle

after an altercation with Appellant, was struck by another car, and

died from his injuries five days later. Appellant contends that the

evidence was insufficient to support his convictions for felony

murder and theft by taking; that the trial court erred in denying his

motion to suppress a pretrial interview by police; that the trial court

committed plain error in several ways; and that the trial court

abused its discretion in various evidentiary rulings. He also

contends that he was denied effective assistance of counsel due to

his trial counsel’s deficiencies, including by failing to retain a

medical expert to testify as to the cause of Atkinson’s death. For the reasons that follow, we affirm.1

1. The evidence presented at trial showed the following.2

Appellant and Atkinson were acquaintances, and Appellant

supplied Atkinson with drugs and prostitutes. Atkinson owned a

business and was generous with his money, occasionally paying

bills, such as for rent and cell phone service, for Appellant and

others, and also sometimes lent his car to Appellant and others. Late

1 The crimes occurred on January 24, 2012. It appears that Appellant

was first indicted in 2012, but the record does not contain that indictment. On October 14, 2014, a Fulton County grand jury re-indicted Appellant for felony murder, involuntary manslaughter, aggravated assault with intent to rob, theft by taking (auto), and giving false information to a law enforcement officer. At a trial from October 20-24, 2014, the jury acquitted Appellant of involuntary manslaughter and convicted him on all other counts. The trial court sentenced Appellant to life in prison with the possibility of parole for felony murder, a ten-year consecutive sentence for theft by taking, and a twelve-month consecutive sentence for giving false information. The aggravated assault count merged into the felony murder conviction. Appellant filed a premature motion for new trial, and that motion ripened upon the entry of the final judgment on October 28, 2014. See Southall v. State, 300 Ga. 462, 464-468 (796 SE2d 261) (2017). Appellant amended the motion for new trial with new counsel on June 15, 2021, and February 6, 2023. After an evidentiary hearing on February 22, 2023, the trial court entered an order denying the motion on April 28, 2023. Appellant filed a timely notice of appeal, and the case was docketed in this Court to the August 2023 term and submitted for a decision on the briefs. 2 Because this case involves questions of harmless error and prejudice

stemming from ineffectiveness of counsel, we set out the evidence in detail rather than in the light most favorable to the jury’s verdict. See Wood v. State, 316 Ga. 811, 812 n.2 (890 SE2d 716) (2023). 2 in the evening on January 23, 2012, Atkinson was at his home in

Douglas County celebrating his birthday with Deshanqueanna

Lundy, who was Appellant’s girlfriend. Early the next morning, on

January 24, Appellant was driven to Atkinson’s home by Cleo

Simmons; Lisa Johnson was with them. Appellant delivered crack

and powder cocaine to Atkinson, and the four consumed the drugs.

Later that morning, Atkinson gave Appellant his ATM card so

Appellant could withdraw money to pay for the drugs Appellant had

delivered. Appellant and Simmons left the home, drove to an ATM,

and used Atkinson’s ATM card to withdraw $300, which was the

daily limit for Atkinson’s ATM card; Appellant also bought

additional drugs. After Appellant and Simmons returned, the group

continued to use drugs.

In the early afternoon, Appellant and Lundy borrowed

Atkinson’s car and left. After dropping off Lundy, Appellant saw a

police officer who knew him and knew that he did not have a valid

driver’s license. To avoid being arrested for driving with a suspended

license, Appellant turned into a Travelodge motel in Fulton County

3 near the intersection of Fulton Industrial Boulevard and I-20, where

he sometimes stayed. Appellant parked Atkinson’s car and left.

In the early evening, Atkinson received a call from his friend

Charlene Shivers. Shivers told Atkinson that she had seen his car

at the Travelodge. Atkinson asked Shivers for a ride so he could pick

up his car. When Atkinson and Shivers arrived at the Travelodge,

the police were preparing to impound the car, but Atkinson was able

to retrieve it and drive it home. By the time Atkinson arrived back

home, Johnson and Simmons were gone.

Later that evening, Simmons drove Appellant back to

Atkinson’s home. Appellant demanded payment for Lundy’s time

and for the crack cocaine he had delivered earlier in the day;

however, Atkinson did not have any cash. Atkinson, Appellant, and

Simmons drove away in Atkinson’s car. During the drive, Atkinson

tried to obtain cash by calling Shivers and his two daughters, who

lived in Atlanta. He and Appellant also went to Shivers’s room at

the Skyway Inn, a motel near the intersection of Fulton Industrial

Boulevard and I-20. Atkinson was unable to obtain any cash, and

4 after leaving Shivers’s room, Appellant and Atkinson returned to

the car, and they picked up Johnson, who had been at the Skyway.

Shortly thereafter, Atkinson either jumped or was pushed from the

car while it was in the middle of an intersection, and he was hit by

at least one other car.

Atkinson was seriously injured, but he spoke with several

people at the scene before being transported to the hospital; he died

five days later. Maria Gallo, who was in another car in the

intersection, testified she saw Atkinson in the middle of Fulton

Industrial Boulevard, screaming that he had been kidnapped by

men who wanted to kill him. He came over to her car and tried to

open the door. She saw two men get out of another car that was

stopped in the intersection, walk over to Atkinson, scream at him in

an “ugly” way, and aggressively try to take him away. Atkinson

continued to scream for help, saying that the men were trying to kill

him, and telling the men to leave. When police officers arrived, the

two men returned to their car and drove away quickly.

Corporal David Jira of the Fulton County Police Department

5 was the first officer on the scene. Atkinson told him that he had been

kidnapped at gunpoint from his home in Douglas County and that

when he got to the intersection of Fulton Industrial and I-20, he was

pushed from the car. Atkinson told a paramedic at the scene that he

jumped out of a car because someone tried to kill him; the paramedic

testified at trial that Atkinson smelled of alcohol. About an hour

later, Cpl. Jira discovered Atkinson’s car parked by a gas pump at a

gas station about a mile from the intersection where Atkinson had

been injured. Cpl. Jira was familiar with Appellant and knew that

he had been identified as a suspect. He saw Appellant inside the gas

station, and when Appellant came out to Atkinson’s car, Cpl. Jira

detained him and asked his name; Appellant answered by giving his

brother’s name. After being told why he was being detained,

Appellant stated that what was alleged was not true; that he did not

push Atkinson from the car; and that Atkinson owed his girlfriend

approximately $700. When Cpl. Jira confirmed that Appellant had

given him the wrong name, he arrested him. No drugs or weapons

were found in the car or on Appellant’s person at the time of his

6 arrest.

At trial, the State presented evidence showing that the cause

of Atkinson’s death five days after his admission to the hospital was

blood clots, which were a consequence of injuries he received when

he fell out of a moving vehicle; the evidence included the medical

examiner’s testimony, his hospital medical records, and the autopsy

report. Specifically, the medical examiner, who performed the

autopsy, testified that the cause of death was right pulmonary and

bilateral bone thromboemboli, or blood clots, due to pelvic, rib, and

vertebral fractures. She explained that blood clots were not

uncommon when a person has a fracture of the thigh or arm or a

pelvic fracture; she also noted that blood clots can take time to

develop. She classified the manner of death as a homicide.

Additionally, the medical records showed that on the morning of

Atkinson’s death, he had developed an altered mental status, which

the medical examiner testified can be caused by blood clots. The

medical examiner acknowledged that Atkinson did not have rib

fractures upon his admission to the hospital, and she opined that he

7 may have sustained the rib fractures as a result of having to be

restrained due to his altered mental status or as a result of

resuscitation efforts. She also opined that the large blood clot that

was visible when she did the autopsy would not have come from the

rib fracture because he did not have the rib fracture when he was

admitted to the hospital. On cross-examination, she acknowledged

that the autopsy did not reveal any injury to Atkinson’s neck.

The State called Johnson and Shivers as witnesses. Johnson’s

pretrial interview with Lieutenant John Cross of the Fulton County

Police Department was audio- and video-recorded and played for the

jury. In that interview, she explained that she was in the car with

Atkinson, Appellant, and Simmons late on the evening of January

24, 2012. Atkinson was driving, Appellant was in the passenger

seat, and Simmons was sitting behind Appellant. Appellant and

Atkinson were having a heated argument about money that

Appellant said Atkinson owed him. Atkinson was talking on the

phone with Shivers and others, trying to get money. Atkinson said

he would drive back to the Skyway, but Appellant said he did not

8 want to go that way. Atkinson did not appear to be afraid and told

Appellant that he would get money in the morning. When Atkinson

started to get into a turn lane to turn back toward the Skyway,

Appellant got angry and grabbed the steering wheel, forcing the car

to go in a different direction. At the next intersection, Atkinson

slowed the car, opened the door, and rolled out. The car continued

moving until it hit a barrier, and Appellant got in the driver’s seat

and drove onto I-20. While Atkinson was standing in the

intersection, saying “help me, help me,” Johnson walked back to the

Skyway. Johnson never saw anyone with a gun in the car, although

she had seen Appellant with guns in the past.

At trial, Johnson’s testimony about what happened on January

24 was largely consistent with her pretrial statement. However, she

testified that Appellant and Atkinson were not having a discussion

but were both on their phones and that Atkinson was trying to get

money so that he could pay her because she was planning to spend

the night with him, and he did not want her to have to wait for her

money until the morning. She also testified that Appellant told

9 Atkinson, “You driving crazy, you drunk”; that Appellant asked to

be dropped off; that when Appellant grabbed the steering wheel, he

told Atkinson, “You finna kill us turning into oncoming traffic”; and

that after Atkinson rolled out of the car, Appellant put the car in

park, got out of the car, and she “suppose[d]” he talked to Atkinson.

She testified that she did not see what happened to Atkinson’s car.

According to Shivers’s trial testimony, Atkinson called her

while he was in the car with Appellant, asked for money, and said

Appellant “was down there with a gun demanding money.” Even

though Shivers told Atkinson she did not have money, he came to

her door at the Skyway; Appellant stood behind him and had his

hands in his jacket. When Shivers said she did not have any money,

Appellant and Atkinson left. About ten minutes later, Atkinson

called her again, but he was interrupted by Appellant “hollering” at

him to “go straight.” Then the call dropped. Shortly thereafter,

Shivers saw Johnson, who told her that Atkinson had been hit by a

car; that Simmons had been choking Atkinson; and that Appellant

10 had been hitting him.3 Shivers ran to the scene and saw Atkinson

being loaded into an ambulance; he told her that Appellant tried to

kill him.

The State also called Atkinson’s daughter Felicia, and she

testified that her father called her the night of January 24, asking

for money, which was very unusual. She also had a conversation

with him while he was in the hospital. During that conversation, he

said that Appellant, Johnson, and Simmons came to his home

uninvited. Appellant brought drugs that they all shared and then

demanded he pay for everything when they finished. When he said

he would not pay, someone slapped a beer bottle out of his hand,

pulled a gun on him, and made him get in his car to go get money.

The people with him were choking him, poking him with a gun, and

saying they would take him to a hotel off Fulton Industrial

Boulevard to kill him. Felicia testified that she went to her father’s

home after visiting him in the hospital and saw an opened bottle of

3 On cross-examination, Shivers admitted that she had not told officers

in her pretrial statements that Johnson said Atkinson had been choked. 11 beer on the living room floor.

Appellant was interviewed on February 6 by Lt. Cross; that

interview was audio-recorded, and a portion was played for the jury.

In that interview, Appellant said that Atkinson owed him money for

drugs and for prostitutes. He admitted that during the drive on

January 24, he was yelling at Atkinson about the money; he was

planning to take Atkinson to an apartment where Atkinson had

never been and hold him there until after midnight when Atkinson

could withdraw money from an ATM; he was “dead serious” about

not going back to the Skyway; and he grabbed the steering wheel

right before Atkinson jumped out of the car.

Appellant testified in his own defense as follows. He lived at

the Travelodge and dealt drugs for a living. On January 24, 2012,

Simmons drove him to Atkinson’s home to deliver drugs that Lundy

had requested. He, Atkinson, Simmons, and Lundy shared the

drugs. At the time, Atkinson owed Appellant $300 for Lundy’s

company and $400 for the drugs. Atkinson wanted more crack after

finishing the drugs Appellant brought, so he sent Appellant and

12 Simmons in his car with his ATM card to get cash. Appellant

retrieved $300 — the daily limit — and purchased the crack and

returned to Atkinson’s home. At about 1:00 p.m., Appellant and

Lundy left the home, borrowing Atkinson’s car with his permission.

Shortly thereafter, Atkinson called Appellant and asked him to pick

up more drugs. Appellant went to a hotel near the Skyway to pick

up the crack, but a police officer who knew he was driving on a

suspended license saw him. Appellant went upstairs to wait for the

police to leave but left the car running with his cell phone in the car.

The police called a tow truck to impound the car, but Shivers and

Atkinson arrived in time to take the car. Appellant believed that

Atkinson told the police that he stole the car.

Later, Appellant returned to Atkinson’s home with more crack.

Atkinson and Appellant argued about Atkinson telling the police

Appellant had stolen his car, and Appellant knocked a beer bottle

out of Atkinson’s hand while Atkinson was sitting in a chair.

Appellant told Atkinson the crack he just picked up had to be paid

for. Atkinson and Appellant left in Atkinson’s car to get the money;

13 Atkinson was driving, Appellant was in the front passenger seat,

and Simmons was in the back seat. Their first stop was the Skyway

to ask Shivers for money. After that visit was unsuccessful, they saw

Johnson across the street and picked her up. Johnson suggested

they go to the truck stop to ask someone they knew there for money.

They drove to the truck stop, but police officers were there, so they

did not stop and headed back toward the Skyway. Police were also

present at a store near the Skyway. Appellant had become irritated

and saw Atkinson was about to turn toward the Skyway into

oncoming traffic, so Appellant grabbed the steering wheel. The car

continued forward while Atkinson argued with everybody in the car

and someone on the phone about how he “bent over backwards” for

them, but nobody would help him. Atkinson jumped from the car at

the next light, and a car hit him while he stood in the street.

Appellant placed the car in park and got out. Another car then

struck Atkinson, and Atkinson leaned up against that car. Appellant

unsuccessfully attempted to get Atkinson back in the car and noticed

a man calling the police. He decided to leave in Atkinson’s car

14 because he had outstanding warrants and because of the drugs in

the car. He told Atkinson he was leaving and that because of the

drugs and cup of liquor in the car, “the police was going to come” and

that Atkinson “was going to go to jail.” He told Simmons to tell

Johnson to stay and tell the police what happened. He drove away

and hid the drugs at a gas station, and then he drove to another gas

station near the scene of the incident.

During the cross-examination of Appellant, the State

questioned him about seven of his prior convictions — two for theft

by taking a motor vehicle, four for providing false information to law

enforcement, and one for possession of a firearm by a convicted felon.

2. Appellant raises several contentions in challenging the

constitutional sufficiency of the evidence for his convictions for

felony murder and for theft by taking.4 In reviewing a challenge to

4 Because we no longer automatically review sua sponte the sufficiency

of the evidence, except that of murder convictions resulting in the death penalty, see Davenport v. State, 309 Ga. 385, 398-399 (846 SE2d 83) (2020), we limit our consideration to the specific arguments that Appellant makes in challenging the sufficiency of the evidence. See Scoggins v. State, 317 Ga. 832, 837 n.6 (896 SE2d 476) (2023). 15 the constitutional sufficiency of the evidence, we review the evidence

in the light most favorable to the verdict. See Jackson v. Virginia,

443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). Our review

“leaves to the jury the resolution of conflicts in the evidence, the

weight of the evidence, the credibility of witnesses, and reasonable

inferences to be made from basic facts to ultimate facts.” Wilkerson

v. State, 317 Ga. 242, 245 (892 SE2d 737) (2023) (cleaned up).

(a) Appellant first argues that there was insufficient evidence

that Atkinson’s death was caused by the injuries he received after

he fell out of the car and that the State failed to prove that the

underlying felony of aggravated assault with intent to rob had a

sufficient nexus to Atkinson’s death. These arguments implicate two

elements of felony murder — proximate cause and that the victim’s

death must be caused “in the commission of” the predicate felony.

See OCGA § 16-5-1 (c); Eubanks v. State, 317 Ga. 563, 569, 571-572

(894 SE2d 27) (2023). “Proximate cause is satisfied for purposes of

felony murder when the death was a reasonably foreseeable result

of the criminal conduct at issue,” and the proximate cause element

16 “is met even if the death had an intervening act, so long as that

intervening act was itself a reasonably foreseeable consequence of

the criminal conduct.” Id. at 571 (cleaned up). The “in the

commission of” element requires that “the predicate felony must be

at least concurrent with the homicide in part, and be a part of it in

an actual or material sense.” Id. at 572 (cleaned up).

With regard to proximate cause, Appellant points to evidence

that while hospitalized, Atkinson developed an altered mental

status, had to be restrained, and fought against the restraints.

Appellant argues that Atkinson’s rib fractures were likely a result

of these complications and that the blood clots that caused

Atkinson’s death could have resulted from the rib fractures. He

argues that such complications are reasonably foreseeable in a

hospital setting and could have been the proximate cause of

Atkinson’s death.

These arguments, however, rely on a view of the evidence that

is most favorable to the defense, rather than to the verdict, which is

the proper standard. See Jackson, 443 U.S. at 319. Moreover, the

17 medical records and the testimony of the medical examiner, viewed

in the light most favorable to the verdicts, were sufficient for a

rational trier of fact to find beyond a reasonable doubt that the cause

of death was blood clots resulting from the injuries Atkinson

sustained on January 24. See, e.g., Harris v. State, 313 Ga. 653, 656-

657 (872 SE2d 732) (2022) (evidence sufficient to establish nexus

between defendant’s shooting of victim and victim’s death from

blood clots resulting from being shot); Treadaway v. State, 308 Ga.

882, 884-885 (843 SE2d 784) (2020) (holding that evidence was

sufficient and “whether [defendant’s] actions were the sole cause of

[her husband’s] death or would have otherwise caused his death

under different circumstances is immaterial,” where evidence

showed defendant beat her highly intoxicated, disabled husband

with a metal broom while he was in the bathtub and cause of death

was drowning and blunt-force trauma (cleaned up)). See also

Eberhart v. State, 307 Ga. 254, 260-262 (835 SE2d 192) (2019)

(evidence sufficient to uphold felony murder conviction based on

aggravated assault where medical examiner testified that the victim

18 died from hypertensive cardiovascular disease exacerbated by

physical exertion and TASER application).

With regard to the “in the commission of” element, Appellant

argues that Atkinson voluntarily exited the car; that there was no

physical evidence that Atkinson had been choked; and that Johnson

said that she did not see a gun. Again, these arguments rely on a

view of the evidence that is most favorable to the defense. The

evidence, viewed in the light most favorable to the verdict, was

sufficient to authorize a rational jury to find beyond a reasonable

doubt that just before Atkinson exited the car, Appellant was

threatening Atkinson with bodily harm if he did not pay the money

owed; and that Appellant either pushed Atkinson out of the car, or

Atkinson, in reasonable fear for his life, jumped out of the car. This

evidence was sufficient to support Appellant’s conviction for felony

murder while in the commission of aggravated assault with intent

to rob. See, e.g., Adcock v. State, 279 Ga. App. 473, 473-474 (631

SE2d 494) (2006) (evidence was sufficient to support conviction for

aggravated assault with intent to rob where victim testified that

19 defendant jumped in car, demanded money, and threatened him

with knife, and where defendant testified that he entered car

because victim owed him money but that he did not threaten victim).

See also Wayne R. LaFave et al., Substantive Criminal Law § 6.4 (h)

(October 2023 online update) (“[i]mpulsive acts of the victim in an

effort to escape being harmed by the defendant’s conduct” are

sufficient to establish causation between defendant’s commission of

felony and victim’s death).

(b) Appellant also contends that there was insufficient evidence

that he harbored an intent to deprive Atkinson of his car, a required

element of his conviction for theft by taking of Atkinson’s car. See

OCGA § 16-8-2. Appellant points to testimony that Atkinson would

often help his friends financially and would lend them his car, as

well his own testimony that he had no intent to deprive Atkinson of

his car. However, Appellant again fails to view the evidence in the

light most favorable to the verdict. The evidence, viewed in the

proper light, authorized the jury to find that Appellant, either by

force or intimidation, caused Atkinson to exit the car; drove

20 Atkinson’s car away while Atkinson was screaming for help; and lied

about his identity when found in possession of the car. This evidence

was sufficient to permit the jury to infer that Appellant intended to

deprive Atkinson of his car, either permanently or temporarily. See

OCGA § 16-8-1 (1) (A) (defining “deprive” as withholding, without

justification, “property of another permanently or temporarily”).

Moreover, the jury was not required to credit Appellant’s

testimony as to his intent to help Atkinson by taking the car away

because it had drugs in it. In fact, if the jury disbelieved Appellant’s

testimony, such testimony could serve as substantive evidence that

his intent was to deprive Atkinson of his property. See Maynor v.

State, 317 Ga. 492, 498 (893 SE2d 724) (2023) (jurors are “authorized

to consider their disbelief in Appellant’s testimony . . . as substantive

evidence of his guilt”). Under the proper standard of review set forth

above, we conclude that the evidence at trial was sufficient to

authorize a rational trier of fact to find that Appellant committed

theft by taking. See, e.g., Jones v. State, 303 Ga. 496, 497-499 (813

SE2d 360) (2018) (evidence sufficient to support theft by taking

21 conviction where, after shooting his cousin, defendant drove away

from scene in his cousin’s girlfriend’s car, without her permission,

and was still in possession of car when apprehended by police); Shaw

v. State, 247 Ga. App. 867, 871-872 (545 SE2d 399) (2001) (evidence

sufficient to support intent element of conviction for theft by taking

where there was evidence suggesting that the victim may have given

the defendant her car keys, but there were also circumstances,

including defendant’s demeanor toward victim and when confronted

by officers, that permitted jury to infer defendant’s criminal intent

to deprive victim of her property).

3. Appellant contends the trial court erred in failing to grant

a new trial as a “thirteenth juror” under OCGA §§ 5-5-20 and 5-5-

21. OCGA §§ 5-5-20 and 5-5-21, respectively, allow the trial court to

grant a new trial “[i]n any case when the verdict of a jury is found

contrary to evidence and the principles of justice and equity,” or

when “the verdict may be decidedly and strongly against the weight

of the evidence even though there may appear to be some slight

evidence in favor of the finding.” “Grounds for a new trial under

22 these Code sections are commonly known as the ‘general grounds,’”

and these statutes “give the trial court broad discretion to sit as a

thirteenth juror and weigh the evidence on a motion for new trial

alleging these general grounds.” Allen v. State, 315 Ga. 524, 531 n.5

(883 SE2d 746) (2023) (cleaned up).

Appellant’s claim is not subject to our review because the

decision to grant or deny a new trial under these statutes is vested

solely within the discretion of the trial court and is not subject to

review on appeal. See Ridley v. State, 315 Ga. 452, 456 (883 SE2d

357) (2023).5 To the extent that Appellant contends that the trial

court failed to exercise its discretion as a “thirteenth juror” by his

argument that the trial court failed to “address the specific issues

raised in the amended motion for new trial,” the record clearly

demonstrates otherwise. The trial court’s order on the motion for

new trial stated that it “has reviewed the evidence of record,

5 See also King v. State, 316 Ga. 611, 616 n.8 (889 SE2d 851) (2023)

(noting many Justices’ skepticism about prior case law that imported an analysis of the constitutional sufficiency of the evidence into the consideration of a “thirteenth juror” claim). 23 including re-examining such factors as the weight of the evidence

and the credibility of witnesses . . . as an independent fact finder.”6

Thus, the trial court plainly applied the proper standard under

OCGA §§ 5-5-20 and 5-5-21, and this claim fails.

4. Appellant challenges the admission of his post-arrest

interview by police on the sole ground that he was not advised of his

rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16

LE2d 694) (1966). “To use a defendant’s custodial statements in its

case-in-chief, the State must show that the defendant was advised

of his Miranda rights and that he voluntarily, knowingly, and

intelligently waived them.” Huffman v. State, 311 Ga. 891, 893 (860

SE2d 721) (2021) (cleaned up). A written waiver of rights is not

necessary; a suspect advised of his rights orally can waive them. See

id. at 895. In ruling upon the admissibility of a custodial statement,

a trial court must consider the totality of the circumstances. See id.

at 893. We review a trial court’s factual findings and credibility

6 The trial court’s order stated that Appellant’s second amended motion

for new trial raised “in a scattershot manner” “hosts of evidentiary complaints”; the trial court overruled the claims “en bloc.” 24 determinations for clear error and apply the law de novo. White v.

State, 307 Ga. 601, 602 (837 SE2d 838) (2020).

On February 6, 2012, Lt. Cross spoke to Appellant at the

Fulton County Jail and notified him that he was being charged with

murder in connection with Atkinson’s death. At trial, Lt. Cross

testified outside the presence of the jury that he explained to

Appellant that he did not have to speak with him and held up a

waiver-of-rights form so Appellant could see it. There was no pen for

Appellant to sign the form, but Appellant said, “I understand” and

that he wanted to speak with Lt. Cross. Additionally, Appellant

testified at trial that when Lt. Cross spoke with him, he understood

his Miranda rights and spoke with the officer willingly. Under these

circumstances, we conclude that this claim fails.

5. Appellant also contends the trial court committed plain

error in several ways.7 To show plain error, Appellant must identify

7 We review assertions of plain error related to the admission or exclusion of evidence under OCGA § 24-1-103 (a), (d), which together provide that “[e]rror shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected,” and that “[n]othing

25 an error that was not affirmatively waived; that was clear and

obvious beyond reasonable dispute; that affected his substantial

rights, which generally requires an “affirmative showing” that the

error probably did affect the outcome below; and that the error

seriously affected the fairness, integrity, or public reputation of

judicial proceedings. See Ruthenberg v. State, 317 Ga. 227, 230-231

(892 SE2d 728) (2023). “Satisfying all four prongs of this standard is

difficult, as it should be.” Id. at 231 (cleaned up).

(a) First, Appellant challenges the admission of certain

evidence during the testimony of Gallo, who testified with the

assistance of an interpreter, as hearsay, see OCGA § 24-8-802, and

as a violation of his right of confrontation under the Sixth

Amendment to the United States Constitution. Toward the

conclusion of Gallo’s direct examination, she commented that her

sister-in-law, who was in the car with her, was translating

Atkinson’s statements from English into Spanish. Appellant’s trial

in this Code section shall preclude a court from taking notice of plain errors affecting substantial rights although such errors were not brought to the attention of the court.” 26 counsel objected, arguing that Gallo’s testimony about Atkinson’s

statements was hearsay, because she was relying on her sister-in-

law’s translation. The trial court asked the State for a response, and

following a bench conference, the State asked Gallo about her ability

to understand English. Gallo testified that she understands some

English; that she had an independent understanding of what

Atkinson was saying; and that she understood that Atkinson was

screaming, “They’re trying to kill me.” She also testified that her

sister-in-law was translating because someone else in the car with

them did not understand any English. Following this testimony,

Appellant did not ask for a ruling on his objection and did not renew

it.

Appellant contends that Gallo’s reliance on her sister-in-law as

an interpreter constituted hearsay. Pretermitting whether

Appellant affirmatively waived this objection, we conclude that the

trial court did not err, much less make a clear or obvious error in

admitting Gallo’s testimony, given the particular hearsay objection

made below and given Gallo’s clarification that her testimony was

27 based on her independent understanding of Atkinson’s statement

that “they’re trying to kill me.” Thus, Appellant has failed to show

plain error.

Appellant also asserts, in a single sentence, that the admission

of the testimony of Gallo’s sister-in-law violated his right of

confrontation under the Sixth Amendment to the United States

Constitution. See Crawford v. Washington, 541 U.S. 36 (124 SCt

1354, 158 LE2d 177) (2004). A confrontation clause violation under

Crawford occurs when the out-of-court statement is “testimonial.”

Id. See also Munn v. State, 313 Ga. 716, 724 (873 SE2d 166) (2022)

(statement is “testimonial” where “its primary purpose is to

establish evidence that could be used in a future prosecution”

(cleaned up)). Here, however, Gallo’s sister-in-law’s translation of

Atkinson’s cries to bystanders for help is not testimonial. See

Bulloch v. State, 293 Ga. 179, 182-183 & n.3, 186 (744 SE2d 763)

(2013) (rejecting argument that victim’s statement to brother

identifying defendant as person who should be suspected if

“anything out of the ordinary happens” to victim was testimonial

28 within meaning of Crawford). Therefore, this claim of plain error

fails.

(b) Second, Appellant contends that the trial court plainly

erred in allowing the prosecutor to use leading questions in

examining Gallo and to repeat questions to several witnesses that

had been asked and answered. However, Appellant has not set forth

any of the allegedly improper questions or answers, instead, simply

including string cites to pages of the trial transcript. With respect to

the allegedly leading questions, our review of the record shows that

they easily could have been rephrased in an unobjectionable way to

elicit the same testimony. With respect to the questions that

allegedly had previously been asked and answered, we conclude that

the answers given were cumulative of testimony that Appellant has

not challenged on appeal. Moreover, Appellant has failed to explain

how any of the alleged errors were of a nature to have “seriously

affected the fairness, integrity, or public reputation of judicial

proceedings.” Ruthenberg, 317 Ga. at 230. Thus, Appellant has

failed to meet his burden of showing that the allegedly improper

29 questions likely affected the outcome of the trial. See McCalop v.

State, 316 Ga. 363, 375 (887 SE2d 292) (2023) (plain error claim fails

when appellant cannot establish that allegedly improper testimony

likely affected outcome of trial); United States v. Coleman, 914 F3d

508, 512 (7th Cir. 2019) (“even when they are improper, leading

questions rarely give rise to plain error”). See also Davis v. State,

306 Ga. 140, 149 (829 SE2d 321) (2019) (holding that appellant

failed to establish prejudice stemming from counsel’s failure to

object to leading questions because an objection was unlikely to have

prevented the admission of the testimony); Grier v. State, 313 Ga.

236, 246 (869 SE2d 423) (2022) (equating the prejudice prong of the

plain-error test with the prejudice prong for an ineffective-

assistance claim).

(c) Third, Appellant contends that the trial court committed

plain error in allowing the prosecutor to repeat Appellant’s

testimony in cross-examining Appellant. However, there is no error,

much less a clear and obvious one, in a party exercising its right to

“a thorough and sifting cross-examination,” OCGA § 24-6-611 (b),

30 and using leading questions to reiterate the witness’s testimony on

direct in doing so. See OCGA § 24-6-611 (c) (leading questions “shall

be permitted on cross-examination”).

(d) Fourth, Appellant contends that the trial court plainly

erred by admitting facts underlying Appellant’s prior convictions.

Outside the presence of the jury, the parties discussed the State’s

ability to impeach Appellant with proof of his prior convictions.

When the trial court ruled that seven of Appellant’s prior convictions

— including four for giving false information to law enforcement —

would be admissible, it also advised the parties that the State would

not be permitted to go into the details of the convictions. On cross-

examination, Appellant admitted he had been convicted of the prior

offenses, and the State introduced, without objection, exhibits

supporting each conviction.8 The prosecutor also asked Appellant a

few questions about why he lied to law enforcement, whether he had

8 These exhibits included two indictments that contained counts for which Appellant was not convicted. In this appeal, Appellant does not cite the exhibits or make any argument related to their admission, and thus any issue regarding them is not properly before us. 31 experience trying to avoid arrest by giving a false name to officers,

and referred to Appellant’s testimony on direct examination

admitting that he gave Cpl. Jira his brother’s name when he was

arrested.

OCGA § 24-6-609 (a) (1) (“Rule 609”) states that “evidence that

an accused has been convicted of [a felony] shall be admitted if the

court determines that the probative value of admitting the evidence

outweighs its prejudicial effect to the accused.” Rule 609 (a) (1) is

identical in all relevant respects to the corresponding federal rule,

and in such circumstances, we look for guidance to federal case law,

especially case law from the United States Supreme Court and

federal appellate courts, including particularly the Eleventh Circuit

Court of Appeals. See State v. Almanza, 304 Ga. 553, 556-558 (820

SE2d 1) (2018) (when Georgia courts consider the meaning of the

current Evidence Code, they should be guided by federal case law,

particularly the decisions of the Eleventh Circuit, prior to its

adoption, until a Georgia appellate court decides the issue under the

new Code). Under Federal Rule of Evidence 609 (a), while the fact of

32 the conviction, the nature of the conviction, and the punishment are

all properly admitted, the specific facts and circumstances of the

prior convictions generally are not admissible. See United States v.

Morrow, 537 F2d 120, 141 n.31 (5th Cir. 1976);9 United States v.

Lopez-Medina, 596 F3d 716, 738 (10th Cir. 2010).10

Pretermitting whether the prosecutor’s few additional

questions about the false-information convictions were improper,

Appellant has not made an affirmative showing that any such error

probably affected the outcome below, as required to prevail on his

plain error claim. See Ruthenberg, 317 Ga. at 230-231. There was

overwhelming evidence, including Appellant’s own testimony, that

Atkinson exited the car because he reasonably feared for his life, as

well as substantial medical testimony that the injuries Atkinson

9 Decisions of the former Fifth Circuit rendered before the close of business on September 30, 1981, are binding in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F2d 1206, 1209 (11th Cir. 1981) (en banc). 10 Appellant cited only cases decided under our former Code, and we have

found none addressing the specific issue under our current Code. Therefore, we rely on federal case law. See Brown v. State, 307 Ga. 24, 30 n.2 (834 SE2d 40) (2019) (looking to federal case law to address harmless error in relation to argument about the use of a conviction to impeach a witness other than the accused). 33 sustained on January 24 were the proximate cause of his death.

Additionally, Appellant admitted in his trial testimony that after

being found in possession of Atkinson’s car, he provided a false name

to Cpl. Jira, and the State’s closing argument made only a brief

reference to Appellant’s prior convictions. See id. at 231 (holding

that any error in admitting evidence of prior convictions did not

constitute plain error where appellant failed to make affirmative

showing that admission likely affected outcome of trial).

(e) Finally, Appellant argues plain error based on his appellate

counsel’s inability to obtain transcripts for four pretrial hearings

that occurred under his first indictment, which was later

superseded, and on the trial court’s limiting his time for questioning

his trial counsel at the hearing on the motion for new trial. However,

these alleged errors are not subject to plain-error review. See Keller

v. State, 308 Ga. 492, 497 (842 SE2d 22) (2020) (listing limited

categories of alleged errors for which plain-error review is available).

For all these reasons, Appellant’s claims of plain error fail.

6. Next, we address Appellant’s contention that the trial

34 court abused its discretion in overruling several evidentiary

objections. We review a trial court’s rulings admitting or excluding

evidence for an abuse of discretion. See Anglin v. State, 302 Ga. 333,

335 (806 SE2d 573) (2017). We will reverse a conviction for a trial

court’s evidentiary error only if it was harmful. See id. at 336; 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.”). The test for determining nonconstitutional harmless

error is whether “it is highly probable that the error did not

contribute to the verdicts,” and in conducting that analysis, “we

review the record de novo and weigh the evidence as we would expect

reasonable jurors to have done.” Brock v. State, 316 Ga. 256, 260

(886 SE2d 786) (2023) (cleaned up).

(a) Appellant contends that the trial court erred in overruling

several objections during Lt. Cross’s testimony. First, he contends

that the trial court abused its discretion in overruling his hearsay

objection when Lt. Cross testified that Johnson said during her

pretrial interview that Appellant and Atkinson were having a

35 heated argument in the car. However, OCGA § 24-8-801 (d) (1) (A)

provides, in part, that “[a]n out-of-court statement shall not be

hearsay if the declarant testifies at the trial or hearing, is subject to

cross-examination concerning the statement, and the statement is

admissible as a prior inconsistent statement . . . under Code Section

24-6-613 or is otherwise admissible under this chapter.” OCGA § 24-

6-613 (b) provides, in relevant part, that

extrinsic evidence of a prior inconsistent statement by a witness shall not be admissible unless the witness is first afforded an opportunity to explain or deny the prior inconsistent statement and the opposite party is afforded an opportunity to interrogate the witness on the prior inconsistent statement or the interests of justice otherwise require. Here, the recording of Johnson’s pretrial interview was played for

the jury, and Appellant cross-examined her about alleged

inconsistencies between her pretrial statement and her trial

testimony. Thus, Lt. Cross’s testimony about Johnson’s statement

was not inadmissible hearsay. See Neloms v. State, 313 Ga. 781, 788-

789 (873 SE2d 125) (2022) (investigator’s testimony about witness’s

prior statements was admissible as prior inconsistent statements

36 where witness was present at trial, was asked about statements to

investigator, and was subject to cross-examination).

Second, Appellant contends that the trial court abused its

discretion in overruling his objection to the prosecutor asking Lt.

Cross whether Appellant’s pretrial statement was consistent with

facts uncovered by the investigation, to which Lt. Cross responded,

“There were discrepancies.” On appeal, Appellant argues that a

witness may not give opinion testimony on the “ultimate issue,”

citing case law decided under the former Evidence Code. However,

at trial Appellant provided no basis for his objection, stating merely

“objection.” See OCGA § 24-1-103 (a) (1). We pretermit whether the

trial court abused its discretion in overruling Appellant’s objection.

Compare OCGA § 24-7-701 (a) (1)-(2) (authorizing the admission of

witness testimony in the form of a lay opinion where it is

“[r]ationally based on the perception of the witness [and] [h]elpful to

a clear understanding of the witness’s testimony or the

determination of a fact in issue”); Jones v. State, 299 Ga. 40, 44 (785

SE2d 886) (2016) (no plain error in eliciting, on redirect, testimony

37 from officer that evidence from eyewitness was more consistent with

other facts uncovered in investigation than information provided by

defendant, where officer had been cross-examined about the manner

in which she conducted investigation). We conclude that any error

was harmless because the jury ultimately heard, without objection,

testimony from multiple witnesses that contradicted Appellant’s

pretrial statement, and Lt. Cross’s response — that there were some

discrepancies — was merely cumulative of that testimony.

Third, Appellant asserts that the trial court abused its

discretion in overruling a single “leading” objection when the

prosecutor asked Lt. Cross if Appellant admitted in his pretrial

interview that he tried to get money from Atkinson. However,

Appellant has failed to demonstrate harm given that the jury heard

Appellant’s pretrial interview in which he admitted that he wanted

Atkinson to pay him for the drugs. Thus, regardless of whether the

trial court abused its discretion in overruling the objection,

Appellant has failed to demonstrate harm. See Merritt v. State, 310

Ga. 433, 438-439 (851 SE2d 555) (2020) (any error in allowing State

38 to ask leading questions was harmless, in part, because much of

testimony elicited with leading questions was cumulative of other

evidence).

(b) Appellant also contends that the trial court abused its

discretion in overruling his hearsay objection to testimony by

Atkinson’s daughter Felicia about the conversation she had with her

father the day after he was admitted to the hospital. Regardless of

whether the trial court abused its discretion in overruling

Appellant’s hearsay objection, any error was harmless because

Felicia’s testimony was cumulative of the testimony of multiple

other witnesses. See Leonard v. State, 316 Ga. 827, 834 (889 SE2d

837) (2023) (pretermitting whether trial court erred in admitting

statements victim made before his death and holding that any error

was harmless where substance of statements was cumulative of

other properly admitted testimony). See also Anglin, 302 Ga. at 336

(“[T]he erroneous admission of hearsay is harmless where

substantial, cumulative, legally admissible evidence of the same fact

is introduced.”).

39 For these reasons, Appellant’s claims that the trial court

abused its discretion in overruling his evidentiary objections do not

require reversal.

7. Finally, Appellant contends that he was denied effective

assistance of counsel due to his trial counsel’s decision to call the

paramedic as a witness; failure to object to Cpl. Jira’s testimony that

criminal activity was frequent in the neighborhoods where Atkinson

was injured and Appellant was apprehended; and failure to retain

an expert witness to address proximate cause.11 To establish his

claim of ineffectiveness of counsel, Appellant must prove both

deficient performance by his trial counsel and resulting prejudice.

See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80

LE2d 674) (1984). To establish deficient performance, Appellant

11 In the “plain error” enumerations addressed in Division 5 above, Appellant asserts “alternatively” that trial counsel was ineffective. However, he makes no substantive argument regarding trial counsel’s alleged deficiencies in these matters. Accordingly, we do not address these claims of ineffectiveness. See former Supreme Court Rule 22 (“Any enumerated error not supported by argument or citation of authority in the brief shall be deemed abandoned.”). Our Rule 22 (1) now provides, “Any enumerated error or subpart of an enumerated error not supported by argument, citations to authority, and citations to the record shall be deemed abandoned.” 40 must show that his attorney’s acts or omissions were “objectively

unreasonable . . . considering all the circumstances and in the light

of prevailing professional norms.” Davis v. State, 299 Ga. 180, 182-

183 (787 SE2d 221) (2016). The law recognizes a “strong

presumption” that counsel performed reasonably, which the

defendant bears the burden of overcoming. Strickland, 466 U.S. at

689. To establish the required prejudice, Appellant must show that

but for his attorney’s objectively unreasonable errors, there is a

reasonable probability that the result of the proceeding would have

been different. See id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

We “need not address both components of the inquiry if the

defendant makes an insufficient showing on one.” Davis, 299 Ga. at

183 (cleaned up).

(a) Appellant asserts that trial counsel was deficient in calling

the paramedic as a witness because her testimony — that Atkinson

said he jumped out of the car because people were trying to kill him

— corroborated the State’s theory of the case. At the hearing on the

41 motion for new trial, trial counsel testified that he called the

paramedic because her report indicated that Atkinson told her a

different version of events than he had told his daughter. He also

testified that he tried to interview the paramedic before trial, but

she was “hesitant” to talk to him. At trial, trial counsel did not

attempt to impeach the paramedic with her report, and the report

was not admitted into evidence.

However, assuming that trial counsel was professionally

deficient in calling the paramedic to testify, Appellant has failed to

demonstrate that there is a reasonable probability that the

paramedic’s testimony affected the outcome of the case, given that

the paramedic’s testimony was cumulative of Gallo’s testimony that

she heard Atkinson yelling that he had been kidnapped and that

men were trying to kill him. See generally Payne v. State, 314 Ga.

322, 330 (877 SE2d 202) (2022) (any deficiency in counsel’s failure

to object to alleged hearsay was not prejudicial where the testimony

was cumulative); Koonce v. State, 305 Ga. 671, 675 (827 SE2d 633)

(2019) (appellant failed to show prejudice from trial counsel’s failure

42 to object to certain testimony that was largely cumulative of other

(b) Cpl. Jira testified that he was frequently called to respond

to reports of criminal activity around the accident scene and around

the location where Appellant was apprehended. Appellant contends

that his trial counsel was professionally deficient in failing to object

to this testimony because it was irrelevant and served only to

inflame the jury. However, even assuming that the evidence was

irrelevant and properly subject to an objection under OCGA § 24-4-

402 (“Evidence which is not relevant shall not be admissible.”),

Appellant has not shown that his trial counsel’s failure to object was

patently unreasonable, given that the testimony was cumulative of

the testimony of several other witnesses and consistent with

Appellant’s own testimony that he was involved in criminal activity

and frequented those areas. Thus, Appellant has not shown that his

counsel was deficient in failing to object to Cpl. Jira’s testimony. See

Sawyer v. State, 308 Ga. 375, 384 (839 SE2d 582) (2020) (trial

counsel not deficient in failing to object to cumulative testimony).

43 (c) Appellant asserts that trial counsel was deficient in failing

to utilize an expert witness to counter the testimony of the medical

examiner as to the cause of Atkinson’s death. Trial counsel testified

that causation is a difficult issue for a defense attorney given

existing case law. He also explained that his strategy was to show

that Appellant’s actions did not cause Atkinson to jump out of the

car and that Atkinson instead jumped out of the car due to the

intoxicating effects of cocaine and alcohol. Even assuming that trial

counsel was deficient in not retaining a medical expert on proximate

cause, Appellant has failed to establish prejudice. At the hearing on

the motion for new trial, Appellant did not present the testimony of,

or an affidavit from, an expert witness that countered the State’s

medical expert. Accordingly, Appellant has failed to show Strickland

prejudice. See Pauldo v. State, 317 Ga. 433, 437 (893 SE2d 633)

(2023) (“It is well established that a defendant fails to establish

prejudice under Strickland when he merely contends that trial

counsel was deficient for failing to present an expert, without also

presenting evidence at the motion-for-new-trial hearing about what

44 the potential expert would have testified to at trial.”).

Accordingly, Appellant’s claims that he was denied effective

assistance of counsel fail.12

Judgment affirmed. All the Justices concur.

12 Appellant states in passing that the collective prejudice from trial counsel’s deficiencies “has the potential” to establish prejudice under Strickland, but he fails to make any argument as to how he was prejudiced by the cumulative effect of the alleged deficiencies. He also states in the final sentence of his brief that the claims raised on appeal “individually and collectively” require reversal. However, he again fails to make any argument that the collective prejudice from the alleged deficiencies of his trial counsel and from the alleged trial court errors requires reversal. See State v. Lane, 308 Ga. 10, 18 (838 SE2d 808) (2020) (“A defendant who wishes to take advantage of the [cumulative error rule] should explain to the reviewing court just how he was prejudiced by the cumulative effect of multiple errors.” (cleaned up)). In any event, we conclude that Appellant has failed to establish that the combined prejudicial effect of the five assumed trial court errors of an evidentiary nature, which we address in Divisions 5 and 6, and the three assumed instances of deficient performance of trial counsel denied him a fundamentally fair trial. See, e.g., Huff v. State, 315 Ga. 558, 568 (883 SE2d 773) (2023) (rejecting cumulative error claim “because Appellant has not demonstrated that the prejudicial effect of the assumed trial court errors and ineffective assistance denied him a fundamentally fair trial”). 45 Decided March 5, 2024.

Murder. Fulton Superior Court. Before Judge Cox.

David A. Hoort, Frances C. Kuo, for appellant.

Fani T. Willis, District Attorney, Kevin C. Armstrong, Charles

A. Jones, Jr., Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Meghan

H. Hill, Clint C. Malcolm, Senior Assistant Attorneys General,

Chelsea S. Harvey, Sarah J. Thomas, Assistant Attorneys General,

for appellee.