NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: January 5, 2026
S25A1055. SMITH v. THE STATE.
BETHEL, Justice.
A jury found Travis Smith guilty of malice murder and other
crimes in connection with the shooting death of Cortez Dowell. 1 On
appeal, Smith argues that the trial court erred by admitting certain
1 The crimes occurred on July 27, 2014. On November 25, 2014, a Fulton
County grand jury indicted Smith for malice murder (Count 1), two counts of felony murder (Counts 2 and 3), aggravated assault with a deadly weapon (Count 4), two counts of possession of a firearm by a convicted felon (Counts 5 and 6), and possession of a firearm during the commission of a felony (Count 7). At a jury trial in June 2016, Smith was found guilty on Counts 1-5 and 7. Count 6 was nolle prossed after the verdict. The trial court sentenced Smith to serve life in prison without the possibility of parole on Count 1, five years concurrent on Count 5, and five years consecutive on Count 7. The court purported to merge the remaining counts into the malice murder conviction, but the felony murder counts were actually vacated by operation of law. See Depriest v. State, 319 Ga. 874, 874 n.1 (2024). Smith filed a timely motion for new trial on June 29, 2016, which was amended three years later in 2019 and then again in 2022 and in 2025, each time through different counsel. Following a hearing in March 2025, the trial court denied the amended motion on April 1, 2025. Smith then filed a timely notice of appeal, which was docketed to the August 2025 term of this Court and submitted for a decision on the briefs. testimony and by denying his motions for mistrial. He also argues
that trial counsel rendered ineffective assistance by failing to object
to the State’s closing argument and to certain jury instructions. For
the reasons that follow, we affirm.
1. The evidence admitted at trial showed the following. On July
27, 2014, Smith was playing dice with Dowell at a house where
dozens had gathered to eat, drink, and hang out. Kisha McNeil saw
Smith and Dowell start “having words” and “tussling.” McNeil told
police she saw Smith shoot Dowell three times, though she testified
at trial that she saw the men arguing and fighting but did not see
the gun and only heard the shots. After she ran outside, McNeil saw
Smith still carrying a gun and another man with a gun who then
asked Smith, “Bruh, why the f**k did you do that?” According to
McNeil, Smith replied, “[T]he mother-f**ker should not [have] tried
me.”
After the incident, Terrence Douglas contacted police as an
anonymous tipster, reporting that Smith and Dowell got into an
argument that became physical and that Smith pulled a gun out of
2 his waistband and shot Dowell three times. At trial, Douglas
testified that a fight broke out between Dowell and Smith and that
he saw Smith with a gun, though he denied telling investigators that
he saw Smith shoot Dowell.
Nicholas Crawford, a third witness and an acquaintance of
Dowell’s, saw Dowell gambling and, after the fight broke out, saw
Dowell punch someone. Crawford then saw a gun raised and Dowell
fighting with the person with the gun, after which Crawford heard
gunshots. Dowell died as a result of gunshot wounds to his abdomen.
2. Smith first argues that the trial court abused its discretion
by admitting certain evidence and testimony at trial because, he
says, the evidence constituted hearsay and its admission violated his
rights under the Confrontation Clause of the Sixth Amendment.2
His claims fail.
2 Although this portion of Smith’s brief contains broad citations to the
record, he makes no effort to identify with any specificity the precise testimony he contends should have been excluded or to explain or contextualize any of the cited portions of testimony. Further hampering our review of these claims, Smith provides only cursory analysis as to why the evidence at issue amounted to hearsay or how its admission violated his right of confrontation. Despite these omissions, we reviewed the record in an attempt to determine the specific evidence or testimony that is the subject of each of Smith’s claims. 3 (a) First, Smith asserts that the trial court abused its
discretion by overruling his objections to McNeil’s in-court
identification of him. First, when the prosecutor initially asked
McNeil if the person she heard say “the mother-f**ker should not
[have] tried me” was in the courtroom, Smith interposed an objection
before McNeil could respond, though he did not state the grounds
for the objection. The trial court overruled the objection, and McNeil
was permitted to respond, indicating, “I think so,” and then
identifying Smith. Again, Smith objected, arguing that McNeil
“didn’t even say that she could” identify Smith, but rather “[s]he said
I think so.” The trial court made no definitive ruling on the second
objection. Now, on appeal, Smith argues that McNeil’s identification
should have been excluded on hearsay and Confrontation Clause
grounds.
To preserve for ordinary appellate review a trial court’s ruling
admitting evidence, a defendant must not only object to the
introduction of the evidence at trial, but he must also specify the
particular basis for his objection. See Adams v. State, 306 Ga. 1, 3
4 (2019) (“[T]o preserve an objection for ordinary appellate review, the
specific ground of the objection must be made at the time the
challenged evidence is offered.” (cleaned up)). See also OCGA § 24-
1-103(a)(1) (a trial court’s ruling admitting evidence is ordinarily
reviewable only when “a timely objection or motion to strike appears
of record, stating the specific ground of objection, if the specific
ground was not apparent from the context”). Because Smith did not
specifically object on hearsay or Confrontation Clause grounds to the
admission of this testimony at trial and those grounds were not
apparent from the context, we review only for plain error. See
Pittman v. State, 318 Ga. 819, 830 (2024). To show plain error, Smith
bears the burden of showing legal error that was not affirmatively
waived, was clear and obvious, “which generally means there must
be on-point controlling authority or the unequivocally clear words of
a statute or rule that plainly establish that the trial court erred,”
affected his substantial rights, which generally means it must have
affected the outcome of the trial court proceedings, and seriously
affected the fairness, integrity, or public reputation of judicial
5 proceedings. Dees v. State, 322 Ga. 498, 500–01 (2025) (cleaned up).
See also Gates v. State, 298 Ga. 324, 327 (2016). Smith cannot
establish clear or obvious error here, so his claim fails.
As an initial matter, McNeil’s testimony identifying Smith as
the person she saw after the crimes does not meet the definition of
hearsay. See OCGA § 24-8-801(c) (“‘Hearsay’ means a statement,
other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” (emphasis supplied)). See also Davenport v. State, 309 Ga.
385, 391 (2020) (witness’s testimony based on her own observations,
not what someone else told her, is not hearsay). Accordingly, there
was no error, let alone plain error, in the trial court’s refusal to
exclude this testimony as hearsay.
Smith’s argument that McNeil’s testimony should have been
excluded under the Confrontation Clause of the Sixth Amendment
to the United States Constitution likewise fails. As we have
explained, “[w]ith respect to the right to confrontation, the Sixth
Amendment provides two types of protections for a criminal
6 defendant: the right physically to face those who testify against him,
and the right to conduct cross-examination.” Burney v. State, 309
Ga. 273, 282–83 (2020) (quotation marks omitted). And here, McNeil
testified at trial and Smith did, in fact, cross-examine her. As such,
Smith has failed to show that his right to confront this witness was
violated. See id.
(b) Smith next argues that the trial court erred by admitting
testimony by an investigating detective regarding his conversation
with a witness who subsequently provided a photo of Smith to the
detective. Smith’s brief, however, fails to specify which portion of the
detective’s testimony that he contends should have been excluded
and instead merely references a span of pages in the trial transcript.
From our review of the portion of the record Smith cites in support
of this claim of error, the trial court in fact sustained Smith’s
hearsay objections to the detective’s testimony. As such, this claim
presents no cause for reversal.
Additionally, Smith did not raise an objection under the
Confrontation Clause to the portion of the detective’s testimony that
7 he cites in his brief, so we review that claim only for plain error. And
under plain error review, Smith’s argument, which he fails to
support with authority, fails under the second prong because he
cannot establish clear or obvious error. The detective did not testify
to the substance of the witness’s statements about the picture she
sent to him – only the fact that she sent it to him. It is not clear
under existing law that the mere fact that a picture was sent,
without any context or additional commentary, is a “statement” or
an “assertion” that would be subject to the Confrontation Clause.
See Dees, 322 Ga. at 500; State v. Gilmore, 312 Ga. 289, 293 (2021)
(noting that “this Court and others have concluded that nonverbal
conduct does not constitute a statement when it is not intended to
be an assertion” (emphasis in original)). See also OCGA § 24-8-801
(defining a “statement” to include the “[n]onverbal conduct of a
person, if it is intended by the person as an assertion”); State v. Orr,
305 Ga. 729, 740–41 (2019) (noting that “the key to the definition of
‘statement’ is that nothing is an assertion unless intended to be one,
[such as] … the act of an eyewitness pointing to identify a suspect in
8 a lineup as the perpetrator of a crime”). Accordingly, Smith cannot
establish that the trial court plainly erred by failing to exclude the
evidence on this basis.
(c) Smith also argues that the trial court abused its discretion
by admitting the photograph of Smith the witness provided to the
detective because, he says, the evidence was hearsay and its
admission violated his rights under the Confrontation Clause. But
the portion of the record Smith cites in support of this claim of error
reflects that the trial court sustained Smith’s hearsay objection to
the prosecutor’s asking the detective whether other information the
witness provided with the photo “contain[ed] a name.” The record
does not reflect that Smith otherwise objected to the photograph’s
admission, so we review only for plain error. Beyond his broad
assertions that the photograph should have been excluded as
hearsay and under the Confrontation Clause, Smith makes no effort
to explain either how the photograph itself constitutes hearsay or
how its admission resulted in the violation of his right of
confrontation. And in fact, the case law undercuts Smith’s position.
9 Decisions applying the Confrontation Clause have generally held
that the Clause “applies only to testimonial statements, not to
inanimate objects that cannot be cross-examined like … shell
casing[s] and photographs.” Walker v. State, 308 Ga. 749, 758 (2020),
disapproved of on other grounds by Johnson v. State, 315 Ga. 876,
885 n.8 (2023). See also United States v. Farrad, 895 F3d 859, 877
(6th Cir. 2018) (rejecting defendant’s argument that photographs of
guns—including one featuring a person who looked like the
defendant and others showing a close-up of a hand holding a gun—
“were all out-of-court ‘statements’ that [the defendant] illegally
possessed a firearm,” and concluding that the photographs did not
constitute nonverbal statements (citation and punctuation
omitted)); Dees, 322 Ga. at 502 (not clear or obvious error for trial
court to exclude un-objected-to hearsay). As such, Smith has not met
his burden of showing that the trial court abused its discretion by
failing to exclude the photograph on either basis, and this claim
fails. See Williams v. State, 316 Ga. 304, 309 (2023) (“[B]ecause
currently existing legal authority stands for the contrary position,
10 the alleged error must be considered subject to reasonable dispute
and thus cannot constitute plain error.” (quotation marks omitted)).
(d) Lastly, Smith contends that the trial court should have
excluded the detective’s testimony that the witness who provided
the photograph of Smith “gave him helpful information” on hearsay
and Confrontation Clause grounds. But the portion of the record
Smith cites in support of this enumeration does not contain any
testimony to that effect, and Smith’s brief contains no additional
details that would help us identify the specific testimony at issue.
Thus, to the extent this enumeration concerns additional evidence
not already addressed above, we conclude that Smith has not carried
his burden to show that the testimony he obliquely refers to should
have been excluded on hearsay and Confrontation Clause grounds.
See Roberson v. State, 300 Ga. 632, 636 (2017) (holding that “[i]t is
well established that the burden is on the party alleging error to
show it by the record” (cleaned up)).
3. Smith next argues that the trial court abused its discretion
by denying his motions for mistrial after the State elicited testimony
11 about witness intimidation and after a detective commented on
Smith’s invocation of his right to remain silent.
(a) Turning first to the issue of witness-intimidation evidence,
Smith points to three statements made by McNeil on direct
examination that, he says, warranted a mistrial. Specifically,
McNeil acknowledged that she had reported to the district attorney’s
office before trial that she was scared to testify because she was
“hearing stuff in the street,” that she had moved because she “was
hearing stuff in the street [that she was] going to get killed,” and
that she had inquired to the district attorney’s office about
protective custody. Smith objected after each of the three responses,
and the trial court sustained each objection. Additionally, the trial
court ordered that the second response be stricken and gave a
curative instruction to the jury. Later, outside the jury’s presence,3
Smith moved for a mistrial on the basis that McNeil had testified
that she was afraid she was going to be killed and mentioned
3 Smith first moved for a mistrial after the second response at issue, but
the trial court deferred its ruling. 12 requesting protective custody. The trial court denied the motion for
mistrial but offered to give a curative instruction as to the testimony
about protective custody, though the record does not show that
Smith accepted the court’s offer. Now, on appeal, Smith asserts that
McNeil’s testimony about witness intimidation was improperly
admitted and that a mistrial was the only appropriate remedy.4 We
disagree.
“Whether to grant a mistrial is within the trial court’s
discretion, which an appellate court will not disturb unless there is
a showing that a mistrial is essential to the preservation of the right
to a fair trial.” Parker v. State, 309 Ga. 736, 738 (2020) (quotation
marks omitted).
Here, the trial court sustained Smith’s objections to McNeil’s
4 In this section of his appellate brief, Smith also briefly references a
question posed to Douglas by the prosecutor as to whether “people get retaliated against when they testify.” But the record reflects that Smith objected to this question, the trial court sustained the objection, and Douglas did not respond. Smith did not move for a mistrial based on this question. Thus, to the extent Smith asserts on appeal that the trial court should have granted a mistrial following this question, his failure to promptly move for a mistrial means that the issue was not preserved for appellate review. See Pittman, 318 Ga. at 829. 13 testimony regarding the threats against her and her inquiry about
protective custody, struck McNeil’s second response at issue and
gave a curative instruction about that response, and offered an
additional curative instruction regarding the response about her
protective-custody inquiry, which Smith did not pursue. The trial
court’s actions preserved Smith’s right to a fair trial, and there was
no abuse of discretion in denying Smith’s motion for mistrial. See
Hartsfield v. State, 294 Ga. 883, 886 (2014) (no abuse of discretion
in denying a mistrial where the trial court sustained the objection,
admonished the prosecuting attorney in the presence of the jury, and
told the jury to disregard the statement); Jackson v. State, 292 Ga.
685, 689 (2013) (no abuse of discretion in denying a mistrial where
trial court sustained objection and gave curative instruction
regarding improper reference). See also Perkins v. State, 313 Ga.
885, 897 (2022) (“[J]uries are presumed to follow curative
instructions in the absence of proof to the contrary.” (quotation
marks omitted)).
(b) Smith also argues that a mistrial was warranted following
14 the detective’s testimony that Smith “lawyered up” and did not wish
to talk to investigators. Smith objected to this testimony
immediately, which the trial court sustained. The court struck the
testimony and instructed the jury to disregard it. After the
detective’s testimony had concluded, as well as that of a following
witness, and after the parties began discussing the charges with the
court, Smith moved for a mistrial based on the detective’s earlier
testimony. Smith’s counsel claimed below and on appeal that she did
not hear the detective’s testimony until co-counsel pointed it out to
her. However, the record shows that Smith’s counsel lodged a
contemporaneous objection to the same, which the trial court
sustained.
“It is well established that a motion for a mistrial must be
promptly made as soon as the party is aware of the matter giving
rise to the motion.” Lee v. State, 317 Ga. 880, 884 (2023) (quotation
marks omitted). Because Smith did not move for a mistrial
contemporaneously with the testimony at issue and because Smith’s
excuse for failing to do so is belied by the record, the issue is not
15 preserved for appellate review. See Pittman, 318 Ga. at 829 (claim
of error not timely made where defendant did not move for mistrial
until after the prosecutor had completed its examination of the
witness); Coley v. State, 305 Ga. 658, 661–62 (2019) (claim of error
related to denial of mistrial following admission of bad-character
evidence was not preserved for appeal where the motion was not
made contemporaneously with the testimony at issue); Burrell v.
State, 301 Ga. 21, 26 (2017) (where State’s witness had emotional
outburst on direct-examination, defendant’s motion for mistrial
made after the defendant had completed the cross-examination
failed to preserve the issue for review).
4. Smith alleges that his trial counsel provided constitutionally
ineffective assistance in several ways. To demonstrate ineffective
assistance, a defendant must show both that his trial counsel
performed deficiently and that he was prejudiced by the deficient
performance. Smith v. State, 315 Ga. 357, 365 (2022) (citing
Strickland v. Washington, 466 US 668, 687 (1984)). The deficiency
prong requires the defendant to “show that his attorney performed
16 at trial in an objectively unreasonable way considering all the
circumstances and in light of prevailing professional norms.”
Williams v. State, 316 Ga. 304, 314–15 (2023) (quotation marks
omitted). The prejudice prong requires the defendant to show a
“reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Smith, 315
Ga. at 365 (quotation marks omitted). Showing that the error had
“some conceivable effect on the outcome of the proceeding” is not
enough; the defendant must instead “establish a reasonable
probability of a different result, which means a probability sufficient
to undermine confidence in the outcome.” Neuman v. State, 311 Ga.
83, 96–97 (2021) (quotation marks omitted). Demonstrating
ineffective assistance is a “high bar,” and if a defendant fails to prove
either deficiency or prejudice, we are not required to consider the
other. Mohamed v. State, 307 Ga. 89, 93 (2019).
(a) Smith argues that trial counsel should have objected to two
instances in the State’s closing where the State raised Smith’s
alleged future dangerousness, one of which also ran afoul of the
17 “golden rule.” Because Smith has not shown deficient performance,
these arguments fail.
In closing, the prosecutor argued:
We have a man, Travis Smith, who just shot someone for no reason, in front of 15 to 30 people, in that room. Would you be afraid of him? He didn’t care who saw, because he was expecting exactly what happened. He was expecting that no one would come in here and say what he did, because he’s bad enough, because they’re afraid of him. But ain’t nobody afraid of Travis. The State of Georgia is not afraid of Travis. That’s exactly why he did it, because he was expecting everybody to be quiet. He was expecting it to go away.
On appeal, Smith argues that counsel should have objected to the
first part of the State’s closing because the question to the jury —
“Would you be afraid of him?” — ran afoul of the “golden rule” and
also constituted an improper future dangerousness argument. We
“Under Georgia law, golden rule violations occur when a party
asks the jurors to place themselves in the position of the victims.”
King v. State, 316 Ga. 611, 624 (2023) (quotation marks omitted).
Here, however, the prosecutor did not ask the jurors to put
18 themselves in the victim’s position. Instead, the prosecutor’s
question to the jury came in the broader context of responding to
points Smith emphasized during his closing argument regarding
Douglas’s initial anonymous tip to police, as well as Smith’s efforts
to discredit the testimony of Douglas and other reluctant witnesses.
Accordingly, an objection to this portion of the State’s closing
argument based on the “golden rule” would have been meritless, and
failure to make a meritless objection is not constitutionally deficient.
See id. (no deficient performance for failing to make a “golden rule”
objection where the prosecutor did not ask the jurors to place
themselves in the victim’s position).
Nor would an objection on “future dangerousness” grounds
have succeeded because the prosecutor’s argument was not an
improper future dangerousness argument. “A prosecutor argues
future dangerousness when the prosecutor asserts there will be
more victims if the defendant is not found guilty, or the community
or witnesses will be endangered if the defendant is not found guilty.”
Fulton v. State, 278 Ga. 58, 65 (2004) (cleaned up). The prosecutor’s
19 statement here was not that kind of argument. Instead, it is clear
from the context that the prosecutor was making a permissible
inference from the evidence. See Willis v. State, 304 Ga. 686, 719
(2018). That is, the prosecutor was suggesting that Smith, who had
brazenly killed Dowell in the presence of numerous witnesses, might
have expected that those witnesses would be afraid of him and would
therefore not testify against him. See Arrington v. State, 286 Ga.
335, 346–47 (2009) (noting the prosecution’s wide latitude to argue
inferences from the evidence and declining to construe the State’s
argument based on such inferences as an improper future
dangerousness argument). In other words, the prosecutor was not
suggesting that Smith might hurt more people in the future if he
were found not guilty, which is the kind of argument we have held
is improper. Therefore, counsel was not deficient for failing to object
on these grounds. See Smith, 315 Ga. at 367 (“failure to make a
meritless objection is not deficient performance”).
(b) In his second claim of ineffective assistance, Smith asserts
that trial counsel should have objected to the inclusion in the jury
20 charge of “witness intelligence” as a factor to consider in evaluating
witness credibility. 5 The Court has repeatedly held that while the
better practice is to “omit [reference to witness] intelligence as one
of the factors in the credibility charge, its inclusion is not reversible
error.” Jackson v. State, 318 Ga. 393, 404 (2024) (quotation marks
omitted) (collecting cases). “And because the inclusion of the
intelligence portion of the instruction is not itself reversible error,”
Smith “cannot show the prejudice necessary to succeed on his claim
that counsel rendered ineffective assistance in failing to object to the
charge, and this claim fails.” Id.
(c) Smith next argues that trial counsel should have objected to
5 The trial court instructed the jury:
You must determine the credibility or believability of the witnesses. It is for you to determine which witness or witnesses you believe or do not believe, if there are some whom you do not believe. In deciding credibility, you may consider all of the facts and circumstances of the case, including the manner in which the witnesses testify, their intelligence, their interest or lack of interest in the case, their means and opportunity for knowing the facts about which they testify, the nature of the facts about which they testify, [and] the probability or improbability of their testimony and of the other occurrences about which they testify. (Emphasis added.)
21 the pattern jury charge on prior consistent statements.6 Smith
argues that counsel’s failure to object prejudiced him because the
instruction placed undue emphasis on Douglas’s prior identification
of Smith through his anonymous tip. We are not persuaded.
This Court has said that “an instruction on prior consistent
statements should no longer be given except where the
circumstances of an unusual case suggest that the jury may have
the mistaken impression that it cannot consider a prior consistent
statement as substantive evidence.” Stephens v. State, 289 Ga. 758,
759 (2011). But we also have said that giving that instruction “will
usually not be reversible error,” particularly where “the court’s
instructions, taken as a whole, would not mislead a jury of average
intelligence.” Williamson v. State, 305 Ga. 889, 895 (2019)
(collecting cases). In this case, the jury was charged that “evidence”
6 The trial court instructed the jury:
Should you find that any witness has made a statement prior to this case that is consistent with that witness’[s] testimony from the witness stand, and such prior consistent statement is material to the case and to the witness’[s] testimony, then you are authorized to consider the other statement as substantive evidence. 22 includes all of the testimony of the witnesses and that the jury was
to determine what testimony to believe and what weight to give each
witness’s testimony. The jury also was instructed about how to
determine credibility. And, as we have recognized, the pattern
instruction at issue “does not explicitly direct the jury to place any
additional weight on prior consistent statements beyond that which
the law already gives them.” Id. Given these circumstances, we see
no reversible error in this instruction. Id. And because the
instruction on prior consistent statements was not itself reversible
error here, Smith “cannot show the prejudice necessary to succeed
on his claim that counsel rendered ineffective assistance in failing
to object to the charge, and this claim fails.” Jackson, 318 Ga. at 404.
5. Finally, we consider whether the combined prejudicial effect
of trial counsel’s assumed deficiencies warrants a new trial. See
Schofield v. Holsey, 281 Ga. 809, 811 n.1 (2007), overruled on other
grounds by State v. Lane, 308 Ga. 10, 17 (2020). “[W]e have stated
that a defendant must show that the cumulative prejudice from any
assumed deficiencies showed a reasonable probability that the
23 results of the proceeding would have been different in the absence
of the alleged deficiencies.” Waters v. State, 317 Ga. 822, 832 (2023)
(cleaned up). For purposes of this analysis, we presumed deficient
performance of counsel with respect to the instructions on witness
intelligence and prior consistent statements. But the collective effect
of these presumed errors is not sufficiently harmful to warrant a
new trial because, as we already determined above, there was little,
if any, prejudicial effect from the presumed deficiencies. See Lee v.
State, 318 Ga. 412, 430 (2024). Accordingly, Smith’s claim of
cumulative error fails.
Judgment affirmed. All the Justices concur.