309 Ga. 400 FINAL COPY
S20A0254. STEPP-McCOMMONS v. THE STATE.
MCMILLIAN, Justice.
Appellant Contevious Stepp-McCommons appeals his
convictions for felony murder and other crimes in connection with
the shooting death of Clarence Gardenhire.1 On appeal, Stepp-
1 Gardenhire was killed on August 19, 2013. On November 21, 2013, a
DeKalb County grand jury indicted Stepp-McCommons and his co-defendant Malik DeShawn Rice for malice murder, felony murder predicated on aggravated assault, two counts of aggravated assault, possession of a firearm during the commission of a felony, and criminal attempt to commit armed robbery. At a joint trial that took place from February 10 to 13, 2015, a jury acquitted Stepp-McCommons of malice murder but returned verdicts of guilty on all other charges. On February 23, 2015, the trial court sentenced Stepp- McCommons to serve life in prison without parole for felony murder, five years to serve consecutively for possession of a firearm during the commission of a felony, thirty years to serve concurrently for criminal attempt to commit armed robbery, and twenty years to serve consecutively for one count of aggravated assault against Jamal Perry. The remaining count of aggravated assault against Gardenhire merged into the felony murder count for sentencing purposes. Rice’s case is not part of this appeal. On March 12, 2015, Stepp-McCommons moved for a new trial, and he amended that motion on September 26, 2016, November 6, 2017, and February 9, 2018. After motion hearings on November 8, 2017, and January 11, 2018, the trial court denied the motion for new trial as amended on February 1, 2019. Stepp-McCommons filed a notice of appeal on March 1, 2019. The case was docketed in this Court to the term beginning in December 2019 and submitted for a decision on the briefs. McCommons alleges that the trial court erred in failing to give
certain jury charges and that he received constitutionally ineffective
assistance of trial counsel. Because we conclude that the trial court
did not err on the grounds raised by Stepp-McCommons and that he
has failed to establish his claims of ineffective assistance of counsel,
we affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed that Norman Lopez, Jr., and his brother-
in-law, Jamar Perry, ran a business in which they would acquire,
refurbish, and sell used cell phones. On occasion, they obtained
inventory for their business by placing advertisements on websites
like Craigslist. On August 19, 2013, Perry posted an ad on Craigslist
seeking to purchase used cell phones. That same day, Stepp-
McCommons’ co-defendant Malik Rice told his girlfriend he was
going to rob someone by putting an ad to sell a cell phone on
Craigslist. The plan was to lure the potential buyer to an abandoned
house for the transaction; Rice would hide, and then rob the buyer
of the cash brought for the transaction, as well as pretend to rob the “seller” (his co-conspirator). After at least two other people declined
to participate in this plan, Rice asked Stepp-McCommons to help
him that night, and Stepp-McCommons agreed to go with him.
At around 6:00 p.m. that evening, Perry received a response to
his Craigslist ad from Rice, and he exchanged several text messages
with Rice about purchasing cell phones, including at least one
iPhone. Lopez asked his stepfather, Gardenhire, to accompany Perry
to the purchase location because Perry was new to the Atlanta area.
Perry and Gardenhire left for the meeting at around 9:00 p.m. and
drove to the address Rice provided, where there was a house that
appeared to be abandoned. Perry exited the vehicle, while
Gardenhire stayed seated in the passenger seat.
Stepp-McCommons met Perry and Gardenhire when they
arrived, while Rice concealed himself. Stepp-McCommons asked
Perry to move closer to the abandoned house near where Rice was
hiding, but Perry refused, saying he did not feel comfortable doing
that. Perry testified that Stepp-McCommons became “fidgety” when
he realized Perry had not come alone, and Stepp-McCommons asked if Perry and Gardenhire were police. Perry responded in the
negative and flashed the $350 in cash that was inside his wallet,
saying he was just there to purchase cell phones. Gardenhire
stepped out of the car and pulled up the front of his shirt to show
that he was unarmed. Gardenhire then sat back down in the
passenger seat, leaving the car door open.
At that point, Stepp-McCommons said, “give it up, then,”
pulled up his shirt, and pulled out a gun, which Rice had given to
him earlier. Stepp-McCommons pointed the gun at Perry, and when
Gardenhire made a sudden movement, Stepp-McCommons turned
the gun toward Gardenhire, firing it in rapid succession. As soon as
shots were fired, Perry ran to a nearby house to get help.
Stepp-McCommons and Rice fled. While running away, Stepp-
McCommons dropped Rice’s iPhone in the back yard of a house
nearby, and it was recovered shortly after the shooting. One of the
men who had earlier turned down Perry’s request to participate in
the robbery testified that he saw Stepp-McCommons and Rice after
the shooting. Rice told the witness that the deal “went wrong” and that Stepp-McCommons shot an old man.
Gardenhire, who was shot ten times, died at the hospital from
his wounds. The medical examiner testified that the majority of the
shots were fired downward at Gardenhire, consistent with
Gardenhire being in a sitting position and the shooter standing.
Nine-millimeter bullets recovered from Gardenhire’s body were
later matched to a nine-millimeter Smith & Wesson handgun that
was found the next day in the back yard of another house near where
the shooting occurred. No other gun or other caliber of ammunition
was recovered at the scene or in the car in which Perry and
Gardenhire were riding.
Approximately 11 days after the shooting, Stepp-McCommons
spoke with police. After initially denying any involvement, he gave
them a handwritten statement saying that he agreed to go with Rice
the night of the shooting to sell an iPhone. Stepp-McCommons
stated that he was showing the phone to one man (Perry), when the other man (Gardenhire) pulled out a gun.2 Stepp-McCommons said
that he put his hand on Gardenhire’s gun, but Gardenhire fired, so
Stepp-McCommons shot back.
At trial, Stepp-McCommons testified that Rice never told him
he planned to rob anyone; instead, he thought he was accompanying
Rice to sell a cell phone. Nevertheless, when a friend gave Rice a gun
“for protection,” Stepp-McCommons knew they were going to a place
where they would need protection, and Stepp-McCommons told Rice
to give the gun to him. At the meeting location, Stepp-McCommons
took Rice’s phone to show the men while Rice waited behind a tree.
Stepp-McCommons asked the men if they had any weapons, and
Gardenhire stepped out of the car to show that he did not have a
weapon. Stepp-McCommons testified that after sitting back down in
the car, Gardenhire reached for something silver, so Stepp-
McCommons “jumped” at Gardenhire, they wrestled, and Stepp-
McCommons shot Gardenhire, although he “think[s]” Gardenhire
2Perry also told investigators and testified at trial that he thought Gardenhire had been reaching for a gun. shot him first.3 Stepp-McCommons said that he shot Gardenhire
“rapidfire” because Gardenhire kept coming, although he also stated
that Gardenhire never left the passenger seat of the car.
Though not enumerated as error, consistent with our
customary practice in murder cases, we have reviewed the
sufficiency of the evidence presented at trial. The evidence showed
that Stepp-McCommons and Rice planned to meet Perry to rob him;
that they armed themselves in preparation; that Gardenhire was
shot ten times during the course of the robbery; that Stepp-
McCommons and Rice fled the scene; and that other than the gun
that Rice gave to Stepp-McCommons, there was no gun or
ammunition of a different caliber recovered at the scene. Thus, we
conclude that the evidence was sufficient to authorize a rational jury
to reject Stepp-McCommons’ claim of self-defense and to find him
guilty beyond a reasonable doubt of the crimes for which he was
3 Stepp-McCommons presented evidence that his left “pinky finger” was
injured on the night of the shooting, and he claimed that Gardenhire had shot him there. A police officer who observed Stepp-McCommons’ finger 11 days later observed a small disfigurement and abrasions to Stepp-McCommons’ finger, and photographs of the injury were shown to the jury. convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99
SCt 2781, 61 LE2d 560) (1979). See also Shaw v. State, 292 Ga. 871,
872 (1) (742 SE2d 707) (2013) (“[I]ssues of witness credibility and
justification are for the jury to decide, and the jury is free to reject a
defendant’s claim that he acted in self-defense.” (citation and
punctuation omitted)).
2. Stepp-McCommons asserts that the trial court erred in
failing to give his requested charge on the affirmative defense of
accident and in refusing his requests to charge the jury on
involuntary manslaughter and reckless conduct as lesser included
offenses. To justify a jury instruction on an affirmative defense,
“there need only be slight evidence supporting the theory of the
charge.” Garner v. State, 303 Ga. 788, 790 (2) (815 SE2d 36) (2018)
(citation and punctuation omitted). Similarly, “in order to authorize
a jury instruction on a lesser included offense, there must be some
evidence in the record that the defendant committed that offense.”
Daniel v. State, 301 Ga. 783, 785 (II) (804 SE2d 61) (2017). But
where “the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is
not required to charge the jury on a lesser included offense.” Lupoe
v. State, 284 Ga. 576, 577-78 (2) (669 SE2d 133) (2008) (citation and
punctuation omitted). “Whether the evidence was sufficient to
warrant the requested instruction is a legal question, which we
review de novo.” Wade v. State, 304 Ga. 5, 8 (2) (815 SE2d 875)
(2018). See also Wilson v. State, 279 Ga. 104, 105 (2) (610 SE2d 66)
(2005).
(a) Accident. Stepp-McCommons argues that the trial court
erred when it failed to give his requested accident charge under
OCGA § 16-2-2, which provides that “[a] person shall not be found
guilty of any crime committed by misfortune or accident where it
satisfactorily appears there was no criminal scheme or undertaking,
intention, or criminal negligence.” Therefore, “[t]he affirmative
defense of accident arises when a defendant contends that his acts
were accidental or a product of misfortune rather than criminal
intent or negligence.” Hart v. State, 305 Ga. 681, 683 (827 SE2d 642)
(2019). In denying trial counsel’s request for the charge, the trial court
found that there was “not even the slightest evidence that the gun
accidentally discharged.” On appeal, Stepp-McCommons points to
his own testimony that he did not know how many times he shot
Gardenhire and that at one point when Gardenhire elbowed him,
both his gun and the gun he said Gardenhire was holding hit the
ground, presumably suggesting that the jury could have found that
the gun discharged accidentally at that point. Moreover, Stepp-
McCommons notes that he testified that he shot Gardenhire
“unintentionally and not knowing.”
However, Gardenhire was shot ten times, and the evidence
showed that the majority of the shots were fired downward at
Gardenhire with the shooter in a standing position. Stepp-
McCommons testified that he shot Gardenhire because Gardenhire
was coming at him with a weapon. Stepp-McCommons also said he
kept shooting “rapidfire” because Gardenhire kept coming at him
and he was trying to get Gardenhire to stop. Additionally, Stepp-
McCommons explained that he shot Gardenhire “unintentionally and not knowing” because he never had the intention to “murder”
Gardenhire; rather, “[he] had the intention just to save [himself]
from getting shot by Mr. Gardenhire.” Stepp-McCommons further
testified that he shot Gardenhire before Gardenhire elbowed him
and knocked his gun to the ground, and no evidence was presented
showing that any bullet struck Gardenhire in an upward trajectory,
consistent with a gun discharging when it hit the ground.
Therefore, the evidence, including Stepp-McCommons’ own
testimony, shows that Stepp-McCommons intended to shoot the gun
at Gardenhire, and there was no evidence supporting his argument
that the jury could have found the shooting to be the result of an
accident or misfortune. Thus, the trial court did not err in refusing
to charge on accident as an affirmative defense. See Shorter v. State,
270 Ga. 280, 280 (2) (507 SE2d 757) (1998) (trial court did not err in
refusing to give accident charge where “the evidence presented at
trial, including [defendant’s] own testimony, demonstrated that
[defendant] intentionally pointed the gun and fired[,]” and there was
“no evidence from which a jury could infer that the gun was fired as a result of accident”).
(b) Involuntary Manslaughter. Likewise, we see no error in the
trial court’s refusal to give Stepp-McCommons’ requested jury
charge on involuntary manslaughter based on criminal negligence.
“A person commits the offense of involuntary manslaughter in
the commission of an unlawful act when he causes the death of
another human being without any intention to do so by the
commission of an unlawful act other than a felony.” OCGA § 16-5-3
(a). However, as we concluded above, all the evidence presented
showed that Stepp-McCommons intentionally shot Gardenhire, and
by Stepp-McCommons’ account, no crime happened because he was
shooting in self-defense. Therefore, the crimes were either
committed as charged or not committed at all, and there was no
evidence that he was committing a non-felonious unlawful act. Thus,
he was not entitled to a jury charge under OCGA § 16-5-3 (a). See
Williams v. State, 301 Ga. 712, 718 (5) (804 SE2d 31) (2017) (where
defendant testified that he shot victim multiple times in self-
defense, jury charge on involuntary manslaughter not warranted); Harris v. State, 272 Ga. 455, 456-57 (3) (532 SE2d 76) (2000) (where
defendant testified that he intentionally shot the victim in self-
defense, a charge on the lesser offense of involuntary manslaughter
is not required because “[t]he intentional use of a gun[,] the deadly
force of which is known to all[,] is simply inconsistent with the lack
of intent to kill which is a prerequisite in involuntary manslaughter”
(citation and punctuation omitted)).
(c) Reckless Conduct. Stepp-McCommons also contends that
the trial court erred in refusing to give his charge on the lesser
included offense of reckless conduct. However, like the lesser
included offense of involuntary manslaughter, “[r]eckless conduct is
an act of criminal negligence, rather than an intentional act, that
causes bodily harm or endangers the bodily safety of another.”
Lindsey v. State, 262 Ga. 665, 666 (2) (b) (424 SE2d 616) (1993). See
also State v. Springer, 297 Ga. 376, 381 (1) (774 SE2d 106) (2015).
Accordingly, for the reasons discussed above, we conclude that the
trial court did not err in refusing to give Stepp-McCommons’
requested charge on reckless conduct. 3. Stepp-McCommons also argues that the trial court
committed plain error in failing to properly respond to the jury’s
question about the element of causation for felony murder.
To establish plain error, Stepp-McCommons must show “that
the error was not affirmatively waived; that it was obvious beyond
reasonable dispute; that it likely affected the outcome of the
proceedings; and that it seriously affected the fairness, integrity, or
public reputation of the proceedings.” Howard v. State, 307 Ga. 12,
15 (2) (834 SE2d 11) (2019). “To prevail on this argument requires
[Stepp-McCommons] affirmatively to establish all four prongs of the
plain error test, which is a difficult standard to satisfy.” Reed v.
State, 304 Ga. 400, 405 (3) (819 SE2d 44) (2018).
During deliberations, the jury sent a note to the trial judge,
which she read aloud in the courtroom: “Does the definition of
causing for death, closed quote, in felony murder include both direct
and indirect causes?”4 The trial judge then said that she thought “the
4 The jury’s note was marked as Exhibit 4 but does not appear in the trial
exhibits in the record. The transcript notes that Exhibit 4 was not found in the jury room when the jury was excused. appropriate response would be something along the lines of not to
comment one way or another, but simply say: ‘You’ve been given the
necessary charges; continue to deliberate.’” Stepp-McCommons’
counsel responded: “Please, Your honor, yes.” The trial judge then
altered her wording to say, “You have been given the necessary
definition in the charge; please continue.” She then asked counsel,
“That’ll work?” Stepp-McCommons’ counsel replied, “Yes, ma’am.”
Pretermitting whether counsel’s agreement with the trial
court’s response constituted an affirmative waiver of the issue, we
conclude that the trial court committed no error. “[T]he need,
breadth, and formation of additional jury instructions are left to the
sound discretion of the trial court.” Davis v. State, 287 Ga. 173, 175
(3) (695 SE2d 251) (2010) (citation and punctuation omitted).
Therefore, “[t]he trial court had discretion to decline to answer the
jury’s question directly,” and instead to direct the jurors to rely on
instructions previously given. Redding v. State, 296 Ga. 471, 473 (2)
(769 SE2d 67) (2015).
Here, the trial court gave the pattern jury charges on felony murder and aggravated assault, which address the requirement of
causation.5 See Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases (4th ed.) §§ 2.10.20 & 2.20.21. These charges were
correct statements of the law, and the trial court could properly
point the jury to them to consider in its deliberations. See Redding,
296 Ga. at 473 (2) (“We have never held that the court must engage
in a question and answer session with the jury or instruct the jurors
individually on how to apply the law to the facts.” (citation and
Moreover, Stepp-McCommons has failed to show that the
failure to respond differently to the jury’s question likely affected
the outcome of the trial. This Court has held that “the felony murder
statute requires only that the defendant’s felonious conduct
proximately cause the death of another person.” State v. Jackson,
287 Ga. 646, 660 (6) (697 SE2d 757) (2010). The evidence showed
that Gardenhire died directly as the result of multiple gunshots fired
5 Stepp-McCommons has not pointed us to, and the record does not show,
any request his counsel made in writing or during the charge conference for more specific instructions on the issue of causation. from Stepp-McCommons’ gun. Under any theory of the case, there
was no issue of fact as to whether the shots caused Gardenhire’s
death. Thus, Stepp-McCommons failed to establish the third prong
of the plain error test.
Accordingly, Stepp-McCommons has not shown that the trial
court committed plain error in its handling of the jury’s question.
4. Stepp-McCommons next asserts that he received ineffective
assistance of counsel when his trial counsel failed to object to the
trial court’s response to the jurors’ causation question; failed to
review the discovery provided by the State and to present
exculpatory or impeachment evidence based on the State’s
discovery; and failed to request a hearing to determine the
voluntariness of his statements to police.
To establish this claim, Stepp-McCommons must prove both
that his counsel’s performance was constitutionally deficient and
that the deficiency resulted in prejudice to his case. See Strickland
v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To establish deficient performance, Stepp-McCommons must demonstrate that his trial counsel’s acts or omissions were
objectively unreasonable, considering all the circumstances at the
time and in the light of prevailing professional norms. See id. at 687-
90 (III) (A). To meet the prejudice prong of Strickland, Stepp-
McCommons must show that there is “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694 (III)
(B). This Court need not “address both components of the inquiry if
the defendant makes an insufficient showing on one.” Id. at 697 (IV).
(a) Stepp-McCommons first asserts that his trial counsel’s
performance was deficient because he failed to object to the trial
court’s response to the jurors’ question about causation. However, as
we concluded that the trial court did not err in its handling of the
juror’s question, Stepp-McCommons cannot show that his trial
counsel’s performance was deficient in failing to raise an objection.
See Crump v. State, 301 Ga. 871, 873 (2) (804 SE2d 364) (2017)
(“Failure to make a meritless objection cannot be evidence of ineffective assistance.” (citation and punctuation omitted)).
Moreover, “this Court has equated the prejudice step of the
plain error standard with the prejudice prong for an ineffective
assistance of counsel claim.” Hampton v. State, 302 Ga. 166, 168-69
(2) (805 SE2d 902) (2017). Thus, even if we assume that trial counsel
performed deficiently in failing to object to the trial court’s response,
we have already determined that Stepp-McCommons has failed to
show that it was likely that the outcome of his trial would have been
different if his trial counsel had so objected, so we also conclude, for
the reasons discussed in Division 3, that he has failed to show the
requisite prejudice under Strickland. See Jackson v. State, 306 Ga.
69, 84-85 (4) (b) (829 SE2d 142) (2019). Accordingly, the trial court
correctly denied Stepp-McCommons’ ineffective assistance of
counsel claim on this ground.
(b) Stepp-McCommons next contends that trial counsel was
deficient in failing to review the State’s discovery and to present
exculpatory and impeachment evidence.
The record demonstrates that trial counsel filed a motion for reciprocal discovery, and the “Certificate of Discovery Provided by
the State” includes a notation that there were three CDs in the
State’s file. However, trial counsel testified at the hearing on the
motion for new trial that he did not have any CDs or DVDs in his
file and that he did not recall either receiving or reviewing audio
recordings of Stepp-McCommons’ statements to police or of witness
interviews. Stepp-McCommons also testified that trial counsel did
not discuss any recordings with him.
During the hearings on the motion for new trial, Stepp-
McCommons’ appellate counsel introduced recordings from the
State’s file containing police interviews with Stepp-McCommons
and three other individuals who testified at trial: Ivory Stepp,
Lopez, and Perry. Stepp-McCommons’ claim of ineffective assistance
of counsel is based on the interview of Lopez by one of the DeKalb
County Police detectives, during which the detective and Lopez
discussed that Perry was telling multiple stories about what
happened the night of the shooting and that there were differences
between what he told the family and what he told police. The detective even said that he believed Perry was lying and that he had
his doubts about Perry. Stepp-McCommons asserts that trial
counsel was deficient in failing to review this interview and argues
that if counsel had played it at trial or used it for impeachment
purposes, a reasonable possibility exists that the result of the trial
would have been different.
However, Stepp-McCommons has not identified any of the
purported stories or “lies” told by Perry that he contends would have
been exculpatory or a proper vehicle for impeachment. The only
discrepancy in Perry’s stories discussed by Lopez and the detective
during the interview was that Perry told police that he immediately
ran when the shots were fired, but he told Gardenhire’s family that
he tried to help Gardenhire by displaying the money he brought to
buy the phone. Lopez and the detective discussed that Perry may
have been just trying to “save face” with the family. Moreover, Lopez
told the detective that Perry did not own a gun, and both Lopez and
the detective agreed that Perry had no motive for shooting
Gardenhire as Perry was carrying the money that night, and Gardenhire was there to help him. Accordingly, playing the tape of
the interview would have shown only that Perry’s contradictory
statement about whether he ran or stayed at the scene to help
Gardenhire initially raised doubts in the detective’s mind, but
Stepp-McCommons has failed to show how this evidence was
exculpatory.
Moreover, as found by the trial court, the evidence in the Lopez
interview was cumulative of other evidence presented at trial. The
detective told Lopez during his interview that the detective’s doubts
about Perry came from his discussions with Gardenhire’s wife and
daughter, in which they expressed their concerns about Perry’s
conflicting stories about what had happened on the night of the
shooting. At trial, Rice’s counsel elicited testimony that
Gardenhire’s wife and daughter had approached one of the
detectives to raise concerns about Perry’s conflicting stories and to
tell him that they did not trust Perry and did not think Perry was
telling the truth. Stepp-McCommons’ trial counsel referred to this
evidence in his closing argument to suggest that the State was hiding something because the investigators had not resolved these
conflicts.
Thus, Stepp-McCommons has failed to show that the content
of the interview contained exculpatory evidence raising a reasonable
probability that, but for trial counsel’s failure to play it at trial or
use it for impeachment purposes, the results of the trial would have
been different. Accordingly, Stepp-McCommons has failed to
demonstrate that he received ineffective assistance of counsel on
this ground. See Shank v. State, 290 Ga. 844, 848 (5) (a) (725 SE2d
246) (2012) (claim of ineffective assistance of counsel fails where
appellant did not show that further investigation by counsel would
have resulted in any significant exculpatory evidence and thus could
not establish prejudice resulting from allegedly deficient
investigation).
(c) Stepp-McCommons further argues that his trial counsel was
deficient in failing to request a hearing under Jackson v. Denno, 378
U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964), regarding his
statements to police and that if such hearing had been held, his statements would have been suppressed because they were
improperly obtained after Stepp-McCommons invoked his rights to
remain silent and to counsel under Miranda v. Arizona, 384 U.S.
436 (86 SCt 1602, 16 LE2d 694) (1966).
Stepp-McCommons’ trial counsel never requested a Jackson-
Denno hearing, and the trial court did not make a ruling on the
voluntariness of the statements before they were introduced at trial.
Nevertheless, the State used the statements to rebut Stepp-
McCommons’ trial testimony.6 Even if we assume that trial counsel
was deficient in failing to request a hearing, Stepp-McCommons
must still establish that he was prejudiced by this deficiency. To
establish the requisite prejudice under Strickland, Stepp-
McCommons must show that if his trial court had requested a
Jackson-Denno hearing, his statements would have been excluded
and, without the statements, a reasonable probability exists that the
result of the trial would have been different. See Griffin v. State, 274
Ga. 211, 212 (2) (553 SE2d 271) (2001).
6 The State did not present the statements in its case-in-chief. Stepp-McCommons argues that the statements would have
been excluded because he unequivocally invoked his right to remain
silent and his right to counsel, but that contention is belied by the
record. One of the detectives who interviewed Stepp-McCommons
testified at trial that Stepp-McCommons was read his rights under
Miranda and that Stepp-McCommons waived his rights before
speaking with them. The other detective who interviewed Stepp-
McCommons testified at the second hearing on the motion for new
trial that it was his standard practice to review and get a waiver-of-
rights form signed. Although the detective said that he did not recall
Stepp-McCommons ever invoking his rights, he affirmed that the
interrogation would have ceased immediately if Stepp-McCommons
had done so.
Significantly, at the second motion for new trial hearing,
Stepp-McCommons’ appellate counsel introduced an audio recording
of his statements to police. That recording confirms the detectives’
testimony that they read Stepp-McCommons his rights as set out in
Miranda and that Stepp-McCommons agreed to talk with them. Stepp-McCommons also told the detectives in response to their
questions that he could read and write English, that he had attended
school through the tenth grade, and that he was not under the
influence of any drugs or alcohol. Nothing on the recording indicates
that Stepp-McCommons ever expressly invoked his right to remain
silent or his right to counsel.7 Even though Stepp-McCommons
testified that he asked to speak to a lawyer before talking with the
detectives, the trial court was entitled to credit the detectives’
testimony, supported by the audio recording, over Stepp-
McCommons’ testimony. See Watkins v. State, 285 Ga. 355, 357 (1)
(676 SE2d 196) (2009) (“[I]t is the function of the trial court at the
hearing on the motion for new trial to determine witness credibility
and to resolve any conflicts in the testimony.” (citation and
7 Stepp-McCommons argues on appeal that he invoked his right to silence when he noted in the interview that the waiver form said he had the right to remain silent and he asked, “What I need to do, check that?” However, the record shows that Stepp-McCommons never stated whether he intended to check the form to indicate a waiver or an invocation of his right to silence, and he did not otherwise invoke his rights. Moreover, Stepp-McCommons asked this question before the detectives had even read him his rights, and they clearly explained to Stepp-McCommons that he did not have to talk to them and that they could not talk to him about the case until he had signed the waiver-of-rights form. punctuation omitted)).
Thus, the evidence that would have been presented at a
Jackson-Denno hearing would have authorized the trial court,
considering the totality of the circumstances and based on a
preponderance of the evidence, to determine that Stepp-
McCommons knowingly and voluntarily waived his rights under
Miranda and that his statements were voluntary. See State v.
Rumph, 307 Ga. 477, 477 (837 SE2d 358) (2019) (“‘The trial court
determines the admissibility of a defendant’s statement under the
preponderance of the evidence standard considering the totality of
the circumstances.’” (citation omitted). We conclude, therefore, that
the trial court properly denied Stepp-McCommons’ motion for new
trial on this ground. See Speziali v. State, 301 Ga. 290, 294 (2) (a)
(800 SE2d 525) (2017).
Judgment affirmed. All the Justices concur. DECIDED JUNE 29, 2020 --- RECONSIDERATION DENIED JULY 15, 2020. Murder. DeKalb Superior Court. Before Judge Boulee. Frances C. Kuo, for appellant. Sherry Boston, District Attorney, Emily K. Richardson, Destiny H. Bryant, Elizabeth H. Brock, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.