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: August 26, 2025
S25A0794. WALTON v. THE STATE.
MCMILLIAN, Justice.
Richard Walton appeals his convictions for felony murder and
other offenses in connection with the shooting death of Brian
Christopher Johnson. 1 On appeal, Walton contends that the trial
Johnson died on October 19, 2016. On December 30, 2016, a 1
Washington County grand jury jointly indicted Walton and Clifford Duckworth, III, for malice murder (Count 1), felony murder predicated on aggravated assault (Count 3), armed robbery (Count 5), aggravated assault (Count 7), and four counts of possession of a firearm during the commission of a felony (Counts 2, 4, 6, and 8). Duckworth’s charges were later dismissed without prejudice. At a trial held from March 7 through March 9, 2018, the jury acquitted Walton on the malice murder count and on one firearm count but found Walton guilty on all remaining counts. The trial court sentenced Walton as a recidivist offender to serve two concurrent life sentences in prison without the possibility of parole for felony murder (Count 3) and for armed robbery (Count 5), plus consecutive five-year sentences in prison for the related firearm counts (Counts 4 and 6) to be served concurrent with each other. Counts 7 and 8 merged with Counts 3 and 4, respectively, for sentencing purposes. Walton filed a timely motion for new trial on March 15, 2018, which he amended through new counsel on September 5, 2019. After the hearing held from February 6 through March 5, 2020, the trial court denied Walton’s motion court erred in denying his motion for a directed verdict and
committed reversible error in admitting certain evidence. Walton
also contends that his trial counsel rendered constitutionally
ineffective assistance in several respects and that he was prejudiced
by cumulative harm resulting from trial counsel’s alleged
deficiencies. Because we conclude that Walton did not preserve his
claim of error with respect to his motion for a directed verdict, the
trial court did not plainly err in admitting the evidence contested by
Walton, and Walton failed to show constitutionally ineffective
assistance by his trial counsel, largely through his abandonment of
most of those claims, we affirm.
The evidence presented at trial showed that on the morning of
October 19, 2016, Johnson left his home in Tennille, Georgia, that
he shared with his fiancée and children to ride to work with his
employer. At the time, Johnson had his wallet, identification, food
stamp card, a cell phone, and approximately $45 in cash. He also
for new trial, as amended, on August 23, 2024. Walton timely filed a notice of appeal on September 17, 2024, and the case was docketed to this Court’s April 2025 term and submitted for a decision on the briefs. 2 received $120 in cash after working that day. On his way home,
Johnson purchased beer and a bottle of liquor and then was dropped
off near his home sometime around 4:00 p.m. One of Johnson’s
neighbors, Jerry Hooks, saw Johnson begin walking across a nearby
field after exiting his employer’s vehicle. Although Hooks testified
that he did not know Johnson’s destination at the time, Hooks
confirmed that a woman named “Lilly” hosted card games in the
area.
Around 5:30 or 6:00 p.m., Johnson arrived at his cousin’s house
at Parson’s Crossing in Sandersville, where he was met by his
cousin, Darlene Poole, Poole’s son, Jeffrey, and one of Poole’s
neighbors, Gary Worthen. At the time, Johnson was riding in a red
Dodge truck with two other men later identified as Walton and
Duckworth. The three men stopped by Poole’s house because
Johnson wanted to see her for her birthday. According to Poole, she
asked Johnson about the men with him, and Johnson explained that
the two men were his cousin-in-law and a friend. She further
recalled seeing that Walton, who only briefly exited the vehicle to
3 change seats, “had [a] coat tied on his hand.” Jeffrey testified that
he recalled seeing that the men also had cocaine and marijuana with
them. Poole, Jeffrey, and Worthen each claimed that Johnson
appeared intoxicated and possibly on drugs when he arrived at
Poole’s house but otherwise happy and as though he were having a
good time with the two men. After giving his cousin a couple of
dollars for her birthday and explaining that his remaining cash was
for his rent and light bill, Johnson stated that he was going to
Riddleville to “handle some business.” He then left with Walton and
Duckworth.
In the early morning hours of the next day, Johnson’s body was
discovered on a dirt road that travels toward Riddleville, in a wooded
area, and located only a few miles from Parson’s Crossing. He had a
single gunshot wound to the face, and three of his pants pockets
were pulled inside out. Only a receipt and $0.25 were found with his
body; he had no wallet, cash, identification, or cell phone. A single,
spent .40-caliber cartridge casing was found above his head on the
roadway. Other than the single gunshot wound to Johnson’s face,
4 the crime scene showed no other signs of violence or evidence of a
struggle. Johnson’s autopsy revealed that he died from the gunshot
wound. The medical examiner testified that no soot or stippling was
found on Johnson’s body, suggesting that the gun that killed
Johnson was fired from several feet away or closer but with
something between the gun’s muzzle and Johnson.
That same day, officers interviewed family and witnesses and
learned that Johnson was last seen with Walton and Duckworth;
that the truck that the men rode in belonged to Duckworth; and that
Johnson had a cell phone that was last active near Walton’s
residence that day. Moreover, officers learned from Duckworth’s
girlfriend that Duckworth told her about the events leading to
Johnson’s death. After interviewing Duckworth and further
investigation, officers obtained video surveillance from a liquor store
and gas station that confirmed portions of the route that
Duckworth’s truck had reportedly taken that day. Officers also
obtained and executed search warrants for Duckworth’s truck and
Walton’s house. While searching the truck, officers discovered and
5 took samples of what appeared to be blood on the rear driver’s side
bumper and collected six pieces of paper with handwritten notes
that appeared to be “gang type literature,” including a “gangster
prayer,” from the center console. Searching Walton’s house led to the
additional discovery of what appeared to be blood on a pair of
Walton’s tennis shoes and blue jeans, which were also collected as
evidence. In Walton’s backyard, officers observed a 55-gallon barrel
reportedly used as a burn barrel. Although officers searched through
the top few inches of its wet contents, they found nothing of
evidentiary value and did not search any further. Officers did not
find any of Johnson’s missing possessions, including his wallet or
cell phone.
While other officers searched Walton’s home, the lead GBI case
agent, Eugene Howard, interviewed Walton about the prior day’s
events.2 During that interview, Walton initially stated that he saw
Johnson earlier at Lilly’s house and that he, Johnson, and
2 Walton’s October 20, 2016, interview was video-recorded and played in
full for the jury. 6 Duckworth shared a bottle of alcohol. Walton denied going anywhere
else after Duckworth took him home, except to purchase lottery
tickets. But, after being confronted about witnesses seeing him at
Parson’s Crossing and with the fact that officers had obtained videos
confirming that Duckworth’s vehicle was seen at two other locations,
Walton changed his story. He then admitted that he had gone to
Parson’s Crossing and to the gas station and liquor store seen in
those videos. Nevertheless, when asked whether he was present at
the location where the murder occurred, Walton denied being there.
He also denied having a physical altercation with Johnson and that
Johnson’s blood would be on his belongings for any reason.
Walton was arrested the following day on October 21, 2016.
Following his arrest, he voluntarily submitted to another interview
with Agent Howard, during which he admitted in response to
questioning that he was once “head of security” for the criminal
street gang Gangster Disciples.3 However, upon being interrogated
3 Walton’s October 21, 2016, interview was audio-recorded. Only the portion of the audio recording concerning Agent Howard’s attempts to question Walton about Johnson’s shooting was played for the jury. 7 specifically about the murder, Walton ended the interview, telling
Agent Howard that he “didn’t want to make any comment,” and that
he was “waiting to see what [the investigators] got.”
Weeks later, after learning that the murder weapon – a High
Point .40-caliber pistol – was owned by and came from Duckworth’s
“brother,” Darius Lawrence, officers located the firearm in Baldwin
County where Lawrence lived. Although unable to confirm that the
bullet recovered from Johnson’s body was fired from Lawrence’s
firearm, a GBI firearms examiner confirmed that the spent cartridge
casing found near Johnson’s body was fired from that weapon.
Additionally, although testing of the stains found on Duckworth’s
truck bumper and on Walton’s blue jeans was inconclusive for blood,
the GBI crime lab confirmed the presence of Johnson’s blood on both
of Walton’s tennis shoes.
At trial, the State presented testimony from Kavionne
Robertson, who was Duckworth’s girlfriend around the time of the
murder, and from David Mitchell, who was Walton’s cellmate while
Walton was awaiting his trial. Robertson testified that an
8 intoxicated Duckworth came to her home the night of the shooting
around 8:30 p.m., crying and shaking. Duckworth told her that he
was riding in his truck with two other men on a dirt road, heading
“somewhere to pick something up,” when one of the men identified
as “Rick” asked Duckworth to pull over to use the restroom. After
doing so, an argument occurred between Rick and the other man,
during which Rick walked back to the truck, pulled out a gun, and
then shot the other man in the face.
Mitchell testified that Walton similarly told him that Walton
was riding in a pickup truck with Duckworth and Johnson when
Walton and Johnson began arguing about “money or something.”
According to Mitchell, Walton stated that he made Duckworth stop
on a dirt road near Riddleville, shot Johnson in the face using
Duckworth’s .40-caliber firearm, “wound up with [Johnson’s] phone
and his wallet,” and then burned both items in a barrel behind his
residence. When asked about Walton’s gang affiliation, Mitchell
testified that Walton told him that he was “in enforcement” in the
Gangster Disciples.
9 The State also presented testimony from Captain Trey
Burgamy with the Washington County Sheriff’s Office, who was
tendered as a gang investigations expert, and from Lawrence about
his experiences with the Gangster Disciples and concerning how his
firearm became involved in the shooting. Burgamy testified that the
Gangster Disciples is a Chicago-based street gang with a presence
in Georgia; that the gang’s chain of command includes a chief of
security, who protects the gang members, and a chief enforcer, who
enforces the gang’s rules; and that the chief enforcer is the person
who authorizes the killing or physical punishment of anyone who
violates the gang’s rules. Burgamy further testified that, to become
a member, the gang requires recruits to commit a crime typically
involving homicide, prostitution, or firearms.
Lawrence, who admitted to being a longtime member of the
Gangster Disciples, testified that Duckworth was also a Gangster
Disciples member. Lawrence also claimed that there was no real
difference between the gang’s head of security and the gang’s
enforcer; that, in both positions, one could authorize unlawful acts
10 for retribution or retaliation; and that if Walton was head of
security, Walton could authorize such acts. Regarding the murder
weapon, Lawrence maintained that he did not know that his firearm
was involved until after officers came to his home to collect the
weapon. Yet, on cross-examination, Lawrence admitted that
Duckworth had previously requested to borrow his firearm.
Lawrence was also impeached with his recorded statement, in which
he admitted that Duckworth was not a full-fledged member of the
Gangster Disciples and that Duckworth told him that his firearm
was involved in the shooting after an argument about money.
Burgamy and Lawrence both confirmed that the notes found in
Duckworth’s truck were legitimate Gangster Disciples literature.
1. Walton contends in his brief that the trial court erred in
denying his motion for a directed verdict as to “Count 4 Felony
Murder based upon armed robbery and Count 5 Possession of a
firearm during the commission of the armed robbery.” Although not
enumerated as error, Walton also appears to assert a sufficiency of
the evidence claim with respect to those two counts. These claims
11 fail for several reasons.
To begin, Count 4 of his indictment did not charge him with
felony murder predicated on the commission of an armed robbery.
In fact, Walton was not charged with that offense at all. Instead, the
trial record shows that Count 3 charged him with felony murder
predicated on aggravated assault. Because Walton did not move for
a directed verdict on the grounds that he now asserts on appeal,
Walton’s claim that the trial court should have granted a directed
verdict on the non-existent charge of felony murder predicated on
armed robbery has not been preserved and necessarily fails. See
Clements v. State, 317 Ga. 772, 788–89 (2023) (concluding that the
defendant failed to preserve his claim of error in the trial court’s
denying a motion for a directed verdict for certain counts of the
indictment because the defendant did not move for a directed verdict
on those counts at trial).
Next, while Walton was charged with possession of a firearm
during the commission of an armed robbery, which was designated
as Count 6 of his indictment rather than Count 5 as he alleges, the
12 subject of his motion for a directed verdict at trial was solely armed
robbery. Walton never moved the trial court for a directed verdict on
the related firearm count. Accordingly, Walton’s argument with
respect to the firearm count was also not preserved for our review.
See Clements, 317 Ga. at 788–89.
Moreover, to the extent that Walton asserts that the evidence
was not sufficient as a matter of constitutional due process to
support his convictions, we conclude that the claim has been
abandoned. We have previously declined to address arguments, like
this one, that were not enumerated as error. See, e.g., Mims v. State,
310 Ga. 853, 854 n.2 (2021) (declining to address passing argument
regarding competency issue not enumerated as error, citing Wallace
v. State, 303 Ga. 34, 37–38 (2018) (“[A]n appealing party may not
use its brief to expand its enumeration of errors by arguing the
incorrectness of a trial court ruling not mentioned in the
enumeration of errors.”)). Moreover, Georgia Supreme Court Rule
22(1) provides that, in all briefs filed in cases, except those involving
death penalty matters, “[a]ny enumerated error or subpart of an
13 enumerated error not supported by argument, citations to authority,
and citations to the record shall be deemed abandoned.” Walton’s
entire sufficiency argument is: “There was insufficient evidence,
even in the light most favorable to the State, that the murder
transpired from anything other than an argument.” We have
declined to address sufficiency arguments under similar
circumstances. See, e.g., Byrd v. State, 321 Ga. 222, 226 (2025).
2. Walton also enumerates as error that the trial court should
have granted his motion in limine and excluded evidence about his
gang affiliation and activity from trial as impermissible “other acts”
evidence under OCGA § 24-4-404(b) (“Rule 404(b)”).4 However,
4 OCGA § 24-4-404(b) provides, in pertinent part, that “[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith.” However, such evidence may be admitted for other purposes, including to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. The party offering other acts evidence for a proper purpose under Rule 404(b) “must show that (1) it is relevant to an issue in the case other than the defendant’s character; (2) its probative value is not substantially outweighed by its unfair prejudice under OCGA § 24-4-403; and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the other act.” Mitchell v. State, 317 Ga. 107, 110 (2023). On appeal, Walton addresses only the first and second prongs of this test. 14 despite generally asserting that the trial court erred in denying his
motion in limine that sought to exclude all gang related evidence
associated with him, including but not limited to testimony by Agent
Howard and Mitchell concerning Walton’s statements that he was a
member of the Gangster Disciples, Walton only specifically points to
the trial testimony describing the gang literature and argues that
the evidence should have been excluded. Therefore, we limit our
consideration to whether this evidence should have been admitted
under Rule 404(b), as Walton has abandoned his claim to the extent
that his motion in limine requested exclusion of other gang evidence,
including his statements admitting to his gang membership. See Ga.
Sup. Ct. R. 22(1). See also Johnson v. State, 321 Ga. 422, 426 (2025)
(deeming claim that the trial court erred in admitting gang
membership evidence abandoned, where the defendant failed to
make any arguments or cite to the record in support of his claim).
Walton first argues that the description of the six pieces of
paper found in Duckworth’s truck as “gang type literature” that
included a “gangster prayer” was not relevant to proving murder. As
15 support, he asserts that the State’s theory of the case at trial was
that he shot Johnson following an argument, and the State failed to
introduce evidence showing that the murder was gang related. In
arguing the prejudice prong under the Rule 404(b) test, Walton
asserts that “once the gang inference is made, it is unfairly and
overwhelmingly prejudicial,” and that the evidence “should have
been restricted from the jury’s hearings [sic] as it was more unfairly
prejudicial than probative.”
As an initial matter, our review is for plain error only because
Walton failed to preserve this claim for ordinary appellate review.
See Huff v. State, 315 Ga. 558, 564 (2023) (noting that only plain
error review is available for an unpreserved challenge to the
admission of alleged improper character evidence, in the form of
testimony that the defendant held a “gangster style” gun). The trial
record shows that Walton’s motion in limine seeking to exclude gang
evidence made no reference to Rule 404(b) and instead only asserted
that the evidence was not relevant and more prejudicial than
16 probative under OCGA §§ 24-4-402 and 24-4-403.5 In denying the
motion, the trial court ultimately ruled that it would determine the
admissibility of the contested gang evidence in each instance where
the State sought to introduce the evidence at trial, if requested by
counsel or deemed necessary by the trial court in its discretion. But
the trial transcript reveals that, although Walton did object to the
testimony describing the gang literature at trial, his objection
simply reminded the trial court of his motion in limine, which
asserted different grounds for exclusion than what Walton now
raises on appeal.
Because Walton did not preserve this Rule 404(b) claim for
ordinary review, we consider whether the trial court’s decision not
to exclude the contested gang evidence constitutes plain error under
the standard set forth in Gates v. State, 298 Ga. 324, 326–27 (2016)
5 Regarding the admission of evidence at trial, OCGA § 24-4-402 provides, in pertinent part, that “[e]vidence which is not relevant shall not be admissible.” OCGA § 24-4-403 provides that “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 17 (adopting the federal plain error standard for reviewing claims of
unpreserved evidentiary error under OCGA § 24-1-103(d)).
To establish plain error:
First, there must be an error or defect – some sort of “[d]eviation from a legal rule” – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’”
Gates, 298 Ga. at 327 (quoting Kelly v. State, 290 Ga. 29, 33 (2011)
(punctuation and emphasis omitted)). This Court has explained that
“[s]atisfying all four prongs of this standard is difficult, as it should
be.” Huber v. State, 319 Ga. 78, 86 (2024) (citation and punctuation
omitted). And this Court need not analyze all prongs of the plain
error standard where the appellant fails to establish any one of
them. See Williams v. State, 315 Ga. 490, 496 (2023).
18 Assuming without deciding that the trial court clearly erred in
admitting into evidence the testimony concerning the gang
literature under Rule 404(b), we conclude that Walton has not
established that the alleged error affected his substantial rights. In
his brief, Walton makes only conclusory assertions about prejudice
to support his claim and fails to provide any substantive argument
demonstrating how the admission of the contested gang evidence
affected his trial’s outcome. Moreover, that evidence was cumulative
of other admitted evidence. Agent Howard and Walton’s cellmate,
Mitchell, both testified that Walton admitted to being a gang
member. Walton did not object to that testimony at trial and has
abandoned any claim regarding its admission on appeal. Finally, the
evidence introduced at trial supporting Walton’s guilt was strong.
The trial evidence included testimony that Walton admitted to
shooting Johnson on a dirt road near Riddleville, taking Johnson’s
wallet and cell phone, and then burning both items in a barrel
behind his home. Those admissions were corroborated by other
witnesses testifying to seeing Walton with Johnson a few miles from
19 the murder scene, during the hours immediately before the shooting;
Robertson testifying that Duckworth told her that Walton shot
Johnson on a dirt road; Agent Howard testifying to Walton’s
confirming during one of his recorded police interviews that he was
with Johnson in the hours before the shooting, as revealed by
witnesses and video surveillance; and other witnesses testifying
that Johnson’s body was found on a dirt road that traveled toward
Riddleville, with his pants pockets pulled inside out, and his wallet
and cell phone missing. The trial evidence also included testimony
that Johnson’s cell phone was last active near Walton’s home on the
day that Johnson was killed. Lastly, forensic evidence was
introduced showing that Johnson’s blood was found on both of
Walton’s tennis shoes. Given this strong evidence supporting his
convictions, the cumulative nature of the contested gang evidence,
and Walton’s superficial treatment of this claim, Walton has not
shown that any error in the admission of the testimony regarding
the gang literature likely affected the outcome of his trial. See
Johnson v. State, 319 Ga. 562, 572 (2024) (holding that the appellant
20 failed to show that the alleged error affected his substantial rights,
where the contested testimony was cumulative and the evidence of
guilt was overwhelming); Pittman v. State, 318 Ga. 819, 830 (2024)
(holding that the appellant failed to show that the alleged error in
admitting his statements likely affected his trial’s outcome,
considering the overwhelming evidence of guilt and the appellant’s
cursory treatment of the claim). Accordingly, there was no plain
error.
3. Walton next contends that the trial court erred in permitting
the State to use a transcript that the State prepared to assist the
jurors in listening to Walton’s first recorded police interview without
the trial court first making a specific finding of accuracy concerning
the transcript and instructing the jury accordingly. Specifically, he
asserts that the trial court should have “factually determine[d] the
accuracy of the transcript” before permitting its use and,
acknowledging that the trial court gave limiting instructions to the
jury, he argues that the trial court erred in not including a specific
21 finding that the transcript was accurate. 6
As Walton concedes, this claim is subject to plain error review,
because he did not object to the trial court’s instructions or the
transcript’s use at trial. See OCGA § 24-1-103(d). See also, e.g.,
Horton v. State, 310 Ga. 310, 319–21 (2020) (reviewing unpreserved
instructional error claim for plain error); Rickman v. State, 304 Ga.
61, 63 (2018) (reviewing unpreserved claim contesting the admission
of photographs used as a demonstrative aid for plain error). Here,
Walton has failed to meet his burden as to the standard’s third
prong, requiring that the error likely affected the outcome of the
proceedings. See Gates, 298 Ga. at 327 (reviewing unpreserved
6 To support his claim, Walton cites only two cases from the Court of
Appeals – Montgomery v. State, 173 Ga. App. 570, 572 (1985), and Elliott v. State, 168 Ga. App. 781, 785–86 (1983). We note that neither case cited by Walton stands for the proposition that a trial court must make findings of accuracy before allowing a transcript to be used as a demonstrative aid. See Montgomery, 173 Ga. App. at 572 (holding that the trial court did not err in permitting the use of certain transcripts, as a proper foundation had been laid, they were used for the limited purpose of allowing the jurors to follow along with the recordings, the trial court charged the jury on that limited use, and the transcripts were not admitted into evidence); Elliott, 168 Ga. App. at 785– 86 (holding that the trial court did not abuse its discretion in permitting the use of a transcript that it determined was accurate, and explaining that such use is permissible when a proper foundation has been laid). 22 evidentiary claim for plain error); Kelly, 290 Ga. at 33 (reviewing
unpreserved instructional claim for plain error).
The record reveals that, when the State sought to introduce the
video recording of Walton’s police interview, the State laid a
foundation for its admission by eliciting testimony from the
interrogating officer, Agent Howard, who testified that he was
familiar with the recording, had reviewed it, and had determined
that it was a true and accurate depiction of his interview with
Walton. The State then requested permission to provide the jurors
with copies of a transcript of the recording that had been
professionally prepared, albeit not certified by a court reporter, to
aid the jurors in following along with the recording. In connection
with the use of that transcript, the trial court instructed the jury as
follows:
Ladies and Gentlemen, the Prosecution has prepared a transcript from the – from this interview. Now, it is their – it’s the Prosecution’s understanding of what was said. You heard an audio yesterday and you know how difficult it was to understand. So this is not something that a court reporter has prepared and certified. … So do you understand it’s what they say the audio says. Which you’ll
23 be listening to the audio. So don’t be bound by the transcript. It can be helpful to you, but remember you’ve got to make the decisions in the long run about what it says.
Upon defense counsel’s request, the trial court further instructed
the jury that: “The evidence is the audio, not the transcript. You’re
not going to have these transcripts in the jury room to deliberate. …
It’s merely demonstrative as we say in nature to use the
transcripts.” Finally, after resolving some concerns that arose
during the playing of the recording about necessary redactions to the
recording and transcript outside the presence of the jury, the trial
court reiterated to the jury upon its return to the courtroom:
“[R]emember what I told you, this is the State’s version of what they
say is said on the audio. But what you actually hear on the audio, if
you hear it differently, the audio is the evidence as well as the video.”
Even assuming clear or obvious error, Walton has not carried
his burden of showing that the outcome of the trial likely would have
been different had the trial court first made findings about the
accuracy of the transcript and instructed the jury about those
24 findings. That is because Walton does not assert that the transcript
was an inaccurate representation of what was said on the recording,
and the record on appeal does not include a copy of the transcript for
that determination to be made. See Crawford v. State, 288 Ga. 425,
427 (2011) (“An appellant has the burden of proving trial court error
by the appellate record, and must compile a complete record of what
transpired in the trial court.”). Moreover, the trial court instructed
the jury that the transcript was not evidence and that the audio was
the evidence that the jury should consider. “Qualified jurors are
presumed to follow jury instructions.” Schmitt v. State, 318 Ga. 835,
846 (2024). For these reasons, this claim fails.
4. Walton contends that the trial court abused its discretion
under Rule 404(b) in allowing evidence to be admitted at trial that
he went to prison on an unrelated criminal charge and in not sua
sponte giving a curative instruction related to that evidence.
The trial record reveals that Mitchell testified that he was
Walton’s cellmate at the Washington County jail from December
2016 to July 2017, and, during that time, Walton told him about the
25 events leading to Johnson’s shooting and Walton’s actions during
those events. Defense counsel cross-examined Mitchell about the
source of his knowledge of the specific facts related to the crimes and
accused Mitchell of having read Walton’s discovery materials. In
response, Mitchell denied the accusation and claimed that “[Walton]
was still waiting on his discovery package after [he and Walton]
parted ways.” On redirect, the State asked Mitchell: “Just to clarify,
when you left [the jail] – who left first, you or Mr. Walton?” Mitchell’s
response that Walton now challenges on appeal was: “Mr. Walton
left and went to prison.”
Because Walton did not object to Mitchell’s testimony or
request a curative instruction at trial, we review these issues for
plain error only. See Davis v. State, 302 Ga. 576 (2017) (unpreserved
Rule 404(b) objection to testimony concerning the defendant’s prior
altercations and trial court’s failure to sua sponte give a limiting
instruction reviewed for plain error). We conclude that Walton has
failed to show clear or obvious error, as required under the second
prong of the plain error standard. As even Walton concedes,
26 Mitchell’s testimony that Walton went to prison was unresponsive
to the question being asked by the State and was fleeting and
undetailed, such that the passing reference to Walton’s going to
prison, without more, would not lend itself to the inevitable
conclusion that Walton had unrelated criminal charges against him
and thus did not impugn Walton’s character. See Swims v. State,
307 Ga. 651, 655 (2020) (“A passing reference to a defendant’s
incarceration does not place his character in evidence.”); Wade v.
State, 304 Ga. 5, 10 (2018) (holding that the unresponsive, brief
testimony that the defendant stated that he was “not going back to
prison” did not place the defendant’s character in issue in violation
of Rule 404(b)). “Given that our case law runs contrary to [Walton’s]
position, it cannot be seriously contended that the trial court
committed ‘clear or obvious’ error” in allowing Mitchell’s testimony
into evidence. Kelly, 290 Ga. at 34 (holding that the trial court did
not commit clear or obvious error, where the appellant’s argument
conflicted with controlling precedent).
And, with respect to Walton’s argument that the trial court
27 should have given a curative instruction, the alleged error was also
not clear or obvious, because Walton has not identified any
controlling precedent that requires a trial court to give a curative
instruction under these circumstances, and we are not aware of any
such authority. See Simmons v. State, 299 Ga. 370, 374 (2016) (“An
error cannot be plain where there is no controlling authority on
point.”). Accordingly, Walton’s claim of plain error fails.
5. Walton contends that the trial court plainly erred in allowing
Robertson to testify to Duckworth’s out-of-court statements to her
about the events leading to Johnson’s death in violation of the
Confrontation Clause contained in the Sixth Amendment of the
United States Constitution. See generally US Const. Amend. VI (“In
all criminal prosecutions, the accused shall enjoy the right … to be
confronted with the witnesses against him.”). In addition, Walton
argues in passing that the out-of-court statements were
inadmissible hearsay pursuant to OCGA § 24-4-801. 7 We conclude
7 Walton also concedes that this claim is subject to plain error review, as
he failed to object to Robertson’s testimony at trial. See Grier v. State, 313 Ga.
28 that Walton has not shown that either the alleged error in admitting
Duckworth’s statements under the Confrontation Clause or based
on statutory hearsay grounds affected the outcome of his trial, as
required under the third prong of the plain error standard. See
Castillo-Velasquez v. State, 305 Ga. 644, 653 (2019) (citation and
punctuation omitted).
The Confrontation Clause imposes an absolute bar to
admitting out-of-court statements into evidence that are testimonial
in nature when the defendant does not have an opportunity to cross-
examine the declarant. See McCord v. State, 305 Ga. 318, 321 (2019).
Robertson testified to Duckworth’s statements to her after Johnson’s
shooting that Walton asked Duckworth to stop on a dirt road to use
the restroom, an argument ensued between Walton and Johnson,
and then Walton shot Johnson. Duckworth did not testify at trial
and, thus, was not subject to cross-examination by Walton.
Assuming without deciding that Duckworth’s statements to
236, 240 (2022) (unpreserved Confrontation Clause and hearsay objections reviewed for plain error only). 29 Robertson were testimonial and should have been excluded under
the Confrontation Clause, the alleged erroneous admission of those
statements “did not give rise to the reasonable probability that the
outcome of the trial would have been different.” Grier v. State, 313
Ga. 236, 245 (2022) (citation and punctuation omitted). Not only was
the evidence against Walton strong in this case, but Duckworth’s
statements to Robertson were also cumulative of other, uncontested
evidence. That evidence included Walton’s admissions that
described the circumstances surrounding Johnson’s shooting in a
similar manner to what was testified to by Robertson. Moreover,
Agent Howard’s testimony from the preliminary hearing, a
transcript of which was admitted into evidence and not challenged
on appeal, also described similar statements by Duckworth about
the shooting. Because the evidence was strong and the contested
out-of-court statements by Duckworth are cumulative of other
admitted evidence, Walton’s claim of plain error based on the
Confrontation Clause fails. See Grier, 313 Ga. at 245 (no plain error
in admitting testimony that violated the Confrontation Clause,
30 where the evidence of guilt was strong, and the improperly admitted
hearsay was duplicative of other properly admitted evidence).
Likewise, Walton’s claim of error in the admission of
Duckworth’s statements to Robertson based on hearsay also fails.
Robertson constitute inadmissible hearsay under OCGA § 24-8-
801(c), and should have clearly been excluded, those statements
were cumulative of other evidence, as previously noted. And, again,
the evidence against Walton was strong in this case. Given that,
Walton has not shown that the alleged error affected his substantial
rights, as required by the plain error standard’s third prong. See
Allen v. State, 310 Ga. 411, 416–17 (2020) (no plain error in
admitting hearsay, because the contested statements were
cumulative of other evidence, including the defendant’s
unchallenged admission to his cellmate that he participated in the
crime, and the evidence against the defendant was strong); Anglin
v. State, 302 Ga. 333, 336 (2017) (“[T]he erroneous admission of
hearsay is harmless where substantial, cumulative, legally
31 admissible evidence of the same fact is introduced.”).
6. Finally, Walton contends that his trial counsel rendered
constitutionally ineffective assistance in several ways. To prevail on
a claim of ineffective assistance of counsel, a defendant must show
that his counsel’s performance was deficient and that the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S.
668, 687 (1984). To satisfy the deficiency prong of the Strickland
test, a defendant must demonstrate that trial counsel “performed at
trial in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.”
Butler v. State, 313 Ga. 675, 683 (2022) (citation and punctuation
omitted). See also Strickland, 466 U.S. at 687–88. To satisfy the
prejudice prong of the Strickland test, a defendant must
demonstrate “a reasonable probability that, but for counsel’s
deficiency, the result of the trial would have been different.” Burke
v. State, 320 Ga. 706, 708 (2025) (citation and punctuation omitted).
See also Strickland, 466 U.S. at 694. The defendant’s burden under
Strickland, “though not impossible to carry, is a heavy one.” Hayes
32 v. State, 320 Ga. 505, 514 (2024). And, if a defendant fails to make a
sufficient showing on one prong of the Strickland test, we need not
address the other prong. Starks v. State, 320 Ga. 300, 304 (2024)
(citation and punctuation omitted).
(a) Walton first contends that his trial counsel provided
ineffective assistance in not objecting under Rule 404(b) or moving
for a mistrial in response to Mitchell’s testimony that Walton went
to prison, as discussed in Division 4. This claim fails, as Walton has
not demonstrated that his trial counsel’s performance was
constitutionally deficient.
As we concluded in Division 4, Mitchell’s fleeting, unresponsive
testimony did not place Walton’s character into evidence. Thus, any
objection or motion for mistrial based on Rule 404(b) would have
been meritless, and “the failure to make a meritless objection is not
deficient performance.” Smith v. State, 315 Ga. 357, 367 (2022). See
also Brown v. State, 307 Ga. 24, 33 (2019) (trial counsel not deficient
for not objecting to a passing, non-responsive reference to the
defendant’s being identified using a “jail database,” as that
33 testimony was not improper character evidence). Accordingly,
Walton’s ineffective assistance claim fails.
(b) Walton next argues that his trial counsel provided
ineffective assistance in not objecting to the State’s allegedly leading
questions during the State’s direct examination of Agent Howard. In
his brief on appeal, Walton discusses some testimony elicited from
Agent Howard, mostly about the timeline of the investigation into
Johnson’s death, and certain evidence that was discovered. Then,
without pointing to a single, specific question by the State that
Walton finds objectionable, he argues: “Throughout this extensive
direct examination of this key witness, trial counsel for the
Appellant did not make any objections to any of the obviously
leading questions asked by the State. This lack of objections, along
with other errors by trial counsel [sic] constituted ineffective
assistance of counsel.”
Although Walton provides sufficient page citations and
references to specific testimony in his brief to determine the portions
of the State’s direct examination that he finds objectionable, Walton
34 omits any substantive legal analysis or citation to authority
explaining which questions by the State were objectionable, why
trial counsel’s lack of objections here constitute deficient
performance, and how that prejudiced him. See Byrd, 321 Ga. at 225
(“[L]itigants must do more than just make an argument or cite
authority, but must now ensure that argument, citation to
authority, and citation to the record are all present to avoid having
an enumeration deemed abandoned.”). See also Taylor v. State, 315
Ga. 630, 650 (2023) (citation and punctuation omitted) (“It is not the
function of this Court to cull the record for a party to find alleged
errors or to form arguments on the appellant’s behalf.”). For these
reasons, we determine that Walton has abandoned this claim under
Supreme Court Rule 22 (1), and decline to consider it.
(c) With respect to his third ineffective assistance of counsel
claim, Walton argues that his trial counsel provided ineffective
assistance in not reviewing the State’s transcript of his recorded
statement for accuracy, as discussed in Division 3. And in his fourth
claim of ineffective assistance, Walton argues that trial counsel
35 should have objected and moved for a mistrial when it became clear
that the recording of his statement was improperly redacted; the
recording should have omitted any mention of charges that he had
pending in Valdosta but the word “Valdosta” was heard in the
recording. For both claims, Walton cites to the portion of the trial
record involving the bench conference about the State’s transcript
and the discussion concerning redactions to the transcript and
recording to exclude mention of Walton’s Valdosta criminal charges,
as the trial court had granted Walton’s pretrial motion to exclude
that information. However, Walton only makes bare assertions
about how his counsel was deficient and provides no meaningful
argument as to how trial counsel performed deficiently or how
Walton was prejudiced as a result. Walton also cites no authority to
support these claims. Accordingly, Walton’s cursory arguments are
deemed abandoned. See Ga. Sup. Ct. R. 22(1). See also, e.g., Guyton
v. State, 321 Ga. 57, 62 n.5 (2025) (deeming ineffective assistance
claim based on trial counsel’s not moving for a mistrial based on
allegedly objectionable testimony abandoned, where the appellant
36 failed to argue claim beyond a bare assertion of ineffective
assistance); Sauder v. State, 318 Ga. 791, 816 n.21 (2024) (not
addressing several ineffective assistance claims, where the
appellant made no specific arguments or cited any supporting
authority).
(d) Although not enumerated, Walton asserts in passing that,
taken together, “the cumulative, collective, and prejudicial effect of
errors by trial counsel” deprived him of a fair trial. However, this
claim fails. Not only has Walton not substantively argued this claim
of cumulative prejudice, as already discussed, he has abandoned
three of his four ineffective assistance claims. And, with respect to
the remaining claim concerning trial counsel’s not objecting to
Mitchell’s passing reference to Walton’s incarceration, Walton did
not show that trial counsel performed deficiently. As such, we need
not assess cumulative prejudice under Strickland. See Scott v. State,
309 Ga. 764, 771 (2020) (“Assessing cumulative prejudice is
necessary only when multiple errors have been shown.”).
7. Finally, we have assumed without deciding three trial court
37 errors – permitting the admission of gang literature; allowing the
use of a transcript of Walton’s recorded interview without making
findings of accuracy or instructing the jury on the same; and
allowing Robertson to testify about Duckworth’s out-of-court
statements about Johnson’s shooting. However, we concluded for
each assumed error that Walton has not shown harm. Moreover,
Walton makes no argument that we should conduct a cumulative-
error review or how we should aggregate harm arising from these
errors. See State v. Lane, 308 Ga. 10, 18 (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.”). Given this, we discern no
apparent cumulative error on this record that would require a new
trial. See Johnson, 321 Ga. at 427 n.3; Robbins v. State, 320 Ga. 19,
28 n.3 (2024).
Judgment affirmed. All the Justices concur.