White v. State

903 S.E.2d 891, 319 Ga. 367

• Court: Supreme Court of Georgia
• Decided: June 27, 2024
• Docket: S24A0333
• Status: Published

Opinion

319 Ga. 367 FINAL COPY

S24A0333. WHITE v. THE STATE.

WARREN, Justice.

In February 2018, Erica Claudette White was convicted of

malice murder and other crimes in connection with the November

2014 death of her son, Tyrael McFall (“Tyrael”), whom the State

alleged died from codeine poisoning.1 She appeals those convictions,

1 Tyrael died on November 8, 2014. On August 25, 2017, a Cobb County

grand jury indicted White and her boyfriend, Michael Robert Schullerman, for malice murder (Count 1), felony murder predicated on aggravated battery (Count 2), aggravated battery (Count 3), making a false statement (Counts 4 and 6), identity fraud (Counts 5, 7, and 8), financial-transaction card fraud (Counts 9 through 14), forgery in the second degree (Count 15), and violating the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, OCGA § 16-14-4 (c) (Count 16). Schullerman pled guilty to Counts 4 through 16 on December 4, 2017, and the State dismissed the other charges against him. On February 5, 2018, a jury found White guilty on all counts. Regarding Count 16, the jury found that all but two of 37 overt acts listed in Count 16 constituted a pattern of racketeering activity under OCGA § 16-14-4 (c). On February 7, 2018, the trial court sentenced White to serve life in prison without the possibility of parole for malice murder (Count 1), 5 years in prison for each count of making a false statement (Counts 4 and 6), 10 years in prison for each count of identity fraud (Counts 5, 7, and 8), 3 years in prison for each count of financial-transaction card fraud (Counts 9 through 14), 5 years in prison for forgery in the second degree (Count 15), and 20 years in prison for violating the RICO Act (Count 16), with Counts 4 through 16 to be consecutively served. The felony murder count (Count 2) was vacated by operation of law. The contending that the trial court abused its discretion by denying her

motion for new trial on the general grounds; admitting photographs

from Tyrael’s autopsy; and denying her motion to sever certain

counts in the indictment. White also claims that the trial court erred

by denying her general and special demurrers; motion for new trial

on the grounds that her trial counsel rendered ineffective assistance

of counsel; and motion for new trial on the basis that the State

committed a Brady violation. See Brady v. Maryland, 373 U.S. 83

(83 SCt 1194, 10 LE2d 215) (1963). For the reasons explained below,

White’s claims fail and we affirm her convictions.

1. As relevant to her claims on appeal, the evidence presented

at White’s trial showed the following. In 2012, White married Joseph

McFall (“Joseph”), and in August of that year, Tyrael was born. Only

weeks after Tyrael’s birth, Joseph inflicted blunt-force trauma to

aggravated battery count was merged into Count 1. White timely moved for a new trial on February 19, 2018, and then filed an amended motion for new trial on May 28, 2021. On September 20, 2023, after an evidentiary hearing, the trial court denied White’s motion for new trial, as amended. White timely filed a notice of appeal on September 27, 2023. This case was docketed to the term of this Court beginning in December 2023 and submitted for a decision on the briefs. 1 Tyrael’s head, causing severe and permanent brain damage. The

injuries prevented Tyrael from learning how to walk and talk. He

suffered frequent seizures and received food and medicine through

a feeding tube. In April 2014, Joseph was convicted of aggravated

battery for this abuse. While Joseph was incarcerated, White

became Tyrael’s exclusive caretaker and expressed in a crime

victim-impact statement before a court that Tyrael’s condition

restricted her ability to travel and work because it “limited . . . what

job locations [she could] go to.”

Around that time, White and Michael Schullerman began a

romantic relationship. Within a few months, Schullerman moved

into the same house as White and Tyrael in Austell. White and

Schullerman shared the tasks involved in caring for Tyrael,

including preparing and administering his medicines. Part of that

process included grinding Tyrael’s pills before inserting them into

his feeding tube.

(a) Events Leading Up to Tyrael’s Death

(i) White’s 911 Call Pertaining to Her Own Health. On

2 November 2, 2014, at 5:56 p.m., Schullerman called 911,

complaining that White had a 103-degree fever and was having

trouble breathing. Paramedics arrived at White’s home and at 6:12

p.m. recorded White’s body temperature as 100 degrees. However,

when White was transported to the emergency room, Dr. Nauman

Rashid recorded White’s body temperature as 98.8 degrees. Dr.

Rashid diagnosed White with a urinary tract infection (“UTI”) and

prescribed “Tylenol 3” to White, one tablet of which contains 30

milligrams of codeine.

At 11:22 a.m. on the day after White’s emergency room visit,

Schullerman’s cell phone called White’s cell phone. Two minutes

later, White, Schullerman, or one of White’s family members2

retrieved White’s Tylenol 3 prescription from the pharmacy,

although the pharmacy did not have a record showing who retrieved

2 Evidence was presented that White, Schullerman, White’s daughter

(Sierra Monroe), and White’s mother retrieved each other’s prescriptions from the family’s preferred pharmacy.

3 it.3 Whoever retrieved it, however, purported to sign White’s name

to satisfy the pharmacy’s electronic-signature requirement.

(ii) Tyrael’s Ongoing Medical Difficulties and Death. On

November 5—three days after White’s UTI diagnosis—Dr. Joshua

Chern implanted a nerve stimulator in Tyrael’s neck at Children’s

Healthcare of Atlanta to lessen the frequency and mitigate the pain

of Tyrael’s seizures. Dr. Chern discharged Tyrael from the hospital

on the day of the procedure. Tyrael did not receive any codeine from

Children’s Healthcare on November 5, although he was given liquid

oxycodone to help with pain from the procedure.

On the evening of November 8, White asked her daughter,

Sierra, and Sierra’s husband to babysit Tyrael while she and

Schullerman went to a shooting range where White was a member.

At trial, Sierra testified that, just after she arrived at White’s home

at about 7:30 p.m., she saw Schullerman prepare and administer

Tyrael’s medicine while White was nearby. White encouraged Sierra

3 Although White was prescribed Tylenol 3 for the UTI, the pharmacist’s

testimony was unclear as to whether the prescription was filled with Tylenol 3 or Tylenol 4. One tablet of Tylenol 4 contains 60 milligrams of codeine. 4 to lie in bed with Tyrael while she and Schullerman were at the

shooting range. White and Schullerman left their home that evening

at approximately 8:00 p.m.

When they arrived at the shooting range, White and

Schullerman purchased ammunition and targets. Schullerman later

stated that he and White each shot approximately 50 rounds of

ammunition that night. However, the shooting range owner testified

that she had no record showing that White and Schullerman were

placed in a firing lane that night, indicating that they did not fire

any guns during their visit. Although it is unclear exactly what

White and Schullerman did while they were at the shooting range,

evidence showed that White called Sierra multiple times to ask if

she had checked on Tyrael. White and Schullerman returned home

at around 9:30 p.m. that evening and Sierra and her husband left at

approximately 10:00 p.m.

At 10:44 p.m., White called 911, yelling that “[her] baby’s not

breathing.” The operator asked, “[I]f I get somebody on the line that

can instruct you in CPR, do you think you could follow the

5 directions?” White screamed “no” in response. During the 911 call,

White left Tyrael with Schullerman, ran across the street to her

mother’s house, and screamed, “Tyrael’s dead.” EMS arrived at

10:49 p.m. Tyrael was pronounced dead at 11:24 p.m., after he had

been transported to the hospital.

The medical examiner concluded that “codeine toxicity” caused

Tyrael’s death, and she also reported a small amount of oxycodone

in his blood consistent with the oxycodone dosages prescribed after

Tyrael’s November 5 surgery. At trial, a pharmacokinetics expert

testified that 55 or 56 milligrams of codeine—or two tablets of

Tylenol 3—could induce respiratory arrest in a child of Tyrael’s size,

with the peak effect of toxicity occurring between 1.5 and 4 hours

after ingestion.

During the investigation into Tyrael’s death, Detective Adam

Payne asked White how codeine could have gotten into Tyrael’s

body. White stated that she “didn’t know what codeine was until this

all happened.” She also claimed that “I’ve never had it prescribed to

me” and that she had “no access to it.” White also told Detective

6 Payne that she had some form of codeine prescribed to her after

Tyrael died, but she did not “have it filled” because she “just [did]

not take that kind of stuff.” White did not recall going to the

emergency room six days earlier on November 2 and receiving a

prescription for Tylenol 3 until Detective Payne specifically asked

about it. White added that she “did not have [that Tylenol 3

prescription] filled.” And when Detective Payne asked White if the

signature provided to retrieve that Tylenol 3 prescription was hers,

she—at various times—said that she remembered signing for it and

did not remember signing for it.

(b) White’s Trial

The State ultimately charged White and Schullerman with

Tyrael’s murder, among other crimes. At trial, the State contended

that White and Schullerman poisoned Tyrael with Tylenol 3,

alleging that White feigned a UTI and obtained a Tylenol 3

prescription under false pretense. To support that contention, Dr.

Rashid testified that a person’s body temperature could “not likely”

drop 3 degrees in 16 minutes—the period between Schullerman’s

7 911 call and the EMT recording of White’s temperature—“[w]ithout

intervention” and “probably [could] not” decrease from 103 to 98.8

degrees between the time Schullerman reported White’s

temperature to the 911 operator and Dr. Rashid’s recording of her

temperature at the emergency room. The State further argued that

White was motivated to murder Tyrael because she no longer

wanted to be encumbered by him—financially, or with respect to the

around-the-clock nature of the care that was required for him. To

support its theory of motive, the State introduced the following

evidence.

(i) Credit-Card-Related Conduct. In August 2014—

approximately three months before Tyrael died—White used

Tyrael’s personal identifiers to activate a credit card and make

transactions using that card. And in April 2015—approximately six

months after Tyrael died—White used Tyrael’s personal identifying

information to activate at least two more credit cards. White and

Schullerman used those credit cards to attempt (in some instances)

and complete (in other instances) transactions with several vendors

8 during April and May 2015.4

(ii) Additional Evidence of Financial Crimes. In 2013, White

secured a $50,000 life insurance policy on Tyrael’s life that she

sought to redeem after he died. The State contended that White

made material omissions about Tyrael’s medical condition in

applying for that policy, and alleged in the indictment—and

contended at trial—that obtaining this policy was an overt act in

4 Count 5 alleged that White and Schullerman committed the offense of

identity fraud, OCGA § 16-9-121, for the “April[ ] 2014” activation, using Tyrael’s identifiers, of a Capital One Bank Mastercard ending in -6266. Count 16, overt act 3, incorporated Count 5. Count 16 alleged, in overt acts 35 and 36, that White and Schullerman presented the credit card ending in -6266 to make two purchases, but the card was declined. Count 7 alleged that White and Schullerman committed the offense of identity fraud, OCGA § 16-9-121, for the April 2015 activation, using Tyrael’s identifiers, of a Citibank card ending in - 8773. Count 9 alleged that White and Schullerman committed the offense of financial-transaction card fraud, OCGA § 16-9-33 (a) (1) (C), by using the Citibank card ending in -8773 to purchase electronics at Best Buy. Count 16, overt acts 7 and 9, incorporated Counts 7 and 9, respectively. Count 8 alleged that White and Schullerman committed the offense of identity fraud, OCGA § 16-9-121, for the April 2015 activation, using Tyrael’s identifiers, of a Capital One Bank credit account ending in -2313. Counts 10 through 14 alleged that White and Schullerman committed the offense of financial-transaction card fraud, OCGA § 16-9-33 (a) (1) (C), for presenting the credit card ending in - 2313 at vendors to make purchases. Count 16, overt acts 6 and 8 through 12, incorporated Counts 8 and 10 through 14, respectively. Additionally, Count 16 alleged, in overt acts 32 through 34 and 37, that White and Schullerman presented the credit card ending in -2313 at vendors to make purchases, but the card was declined. Count 16 also alleged, as overt acts 26 through 29, that White and Schullerman applied for four other credit cards after Tyrael’s death using Tyrael’s identifiers, but their applications were declined. 9 furtherance of White and Schullerman’s scheme to financially

exploit Tyrael in death.

In March 2013, White submitted a grant application to the

Brain and Spinal Injury Trust Fund Commission, which provides

grants to Georgians who have suffered traumatic brain and spinal

cord injuries, in which she falsely represented her total monthly

income. Additionally, in September 2014, White fabricated a letter

from a former employer that misrepresented her salary to support

her application for a $10,000 grant from an entity that supports

crime victims and their caregivers.

Also, two days after Tyrael died in 2014, White made a request

with the Social Security Administration (“SSA”) for Tyrael’s

benefits, for which he was eligible only while living, to be directly

deposited into a different bank account than the bank account they

were deposited into before Tyrael died. However, the SSA did not

terminate benefits until the State of Georgia notified it of Tyrael’s

death on May 20, 2015.

(iii) Additional Evidence of Motive. The State presented

10 evidence that White had told Sierra, “since [Sierra] was a child,”5

that she would “smother” a “special-needs child” if she ever had one

and then “blame it on a crib death.” And the State also presented

evidence that, after White was arrested for Tyrael’s death, Judy

Johnson, White’s pod-mate at the Cobb County adult detention

center, testified that White told fellow inmates that Tyrael “was in

the way of her relationship with her boyfriend,” “she couldn’t have a

life because [Tyrael] needed around-the-clock care,” and that “she

shouldn’t have had to put up with something [Tyrael’s] dad did to

him. . . . [I]t was a burden” to her.6

5 Sierra was 21 years old at the time of White’s trial.

6 At trial, additional evidence of White’s statements during her time in

custody was admitted into evidence. In particular, State’s Exhibit 18 contained audio recordings of phone calls White made to family members while she was in custody at the Cobb County adult detention center, and portions of those phone calls were played for the jury. State’s Exhibit 18 is not included in the record on appeal; however, neither party disputes its contents. We note that although the audio recordings contained in State’s Exhibit 18 are not contained in the record on appeal, the record does contain trial testimony from Sierra characterizing her memory of some of the conversations she had with White while White was in custody at the Cobb County adult detention center. According to Sierra, White stated on a call to her that when White made calls from the detention center to Sierra using other inmates’ phone numbers, that is “when we talk about how [Schullerman] did it.” Sierra further testified that “it” referred to “the fraud,” although the State contested that characterization

11 Additionally, the State contended that a reason White was

motivated to financially exploit Tyrael was to support a “drug habit.”

To help illustrate that theory, the State presented the testimony of

a pharmacy technician who said that Schullerman presented her

with a Xanax prescription purporting to be for White. Pharmacy

records showed that the Xanax prescription was presented after

Tyrael’s death in May 2015. The pharmacy technician recalled that

the incident caused her concern because there was a discrepancy in

the prescription’s formatting and Schullerman appeared to be

“geeked out,” or suffering from withdrawals. The psychiatrist whose

prescription pad page Schullerman presented to fill the prescription

testified that he conducted one session with Schullerman in 2015.

When asked if the Xanax prescription was one that he wrote, the

psychiatrist explained that “there’s nothing about [the Xanax

during Sierra’s cross-examination. Sierra also testified that she stated on a call with White that Sierra “[could not] remember if [Schullerman] pushed [the medicine] through,” although Sierra testified at trial that she was “positive” she saw Schullerman push medicine through Tyrael’s feeding tube on the night of his death. The record also contains testimony from Detective Payne regarding some of White’s recorded calls to family members from the detention center. 12 prescription] that fits . . . with what I would write,” but that

Schullerman would have had an opportunity during the session to

“rifle through [the psychiatrist’s] stuff” because the psychiatrist

“was seeing two patients at the same time in two different rooms.”7

Additionally, to support its contention that White had a “drug

habit,” the State presented evidence that White told Detective

Payne that she used cocaine.

White rejected the State’s theory of motive and presented

alternative explanations for Tyrael’s death. On the one hand, White

claimed she did not kill Tyrael by mistake or otherwise; she

contended that Schullerman poisoned Tyrael with codeine. To

support that contention, she argued that Schullerman retrieved the

Tylenol 3 prescription from the pharmacy on November 3 and

pointed to evidence that Schullerman misrepresented his

whereabouts to Detective Payne. White also pointed to Sierra’s

testimony that she saw Schullerman prepare and administer

7 The State contended that the jury could infer from this evidence that

Schullerman stole the psychiatrist’s prescription pad and later used it to fraudulently obtain Xanax. 13 Tyrael’s medicine on the night he died.

Alternately, White argued that the medical examiner’s

pronouncement that “codeine toxicity” caused Tyrael’s death was

doubtful because the State’s toxicologist testified that there was only

a “toxic”—and not a “fatal”—level of codeine in Tyrael’s blood. In

support of that theory, White contended that Tyrael’s body had

“wore out” because he was having seizures more frequently, and his

white blood cell count was low. She also cited the medical examiner’s

testimony that the medical examiner thought—before she received

the toxicology results—that there was a “possibility” that Tyrael’s

body might have “g[iven] up.”

2. White claims that the trial court abused its discretion by

denying her motion for new trial on the “general grounds” set forth

in OCGA §§ 5-5-20 and 5-5-21 as to the murder, felony murder, and

aggravated battery counts (Counts 1 through 3). See Drennon v.

State, 314 Ga. 854, 860 (880 SE2d 139) (2022) (“Even when the

evidence is legally sufficient to sustain a conviction, a trial judge

may grant a new trial if the verdict of the jury is ‘contrary to . . . the

14 principles of justice and equity,’ OCGA § 5-5-20, or if the verdict is

‘decidedly and strongly against the weight of the evidence.’ OCGA §

5-5-21.”) (citation and punctuation omitted). We disagree.

When these so-called “general grounds” are properly raised in a timely motion for new trial, the trial judge must exercise a broad discretion to sit as a “thirteenth juror.” . . . [T]he merits of the trial court’s decision on the general grounds are not subject to our review, and the decision to grant a new trial on the general grounds is vested solely in the trial court.

King v. State, 316 Ga. 611, 616 (889 SE2d 851) (2023) (citation and

punctuation omitted). In denying White’s motion for new trial, the

trial court expressly stated that it had “exercised its discretion,

weighed the evidence, considered the credibility of witnesses, and

determined as the ‘thirteenth juror’ that the verdict was not against

the weight of the evidence, and did not offend the principles of justice

and equity.” This claim therefore presents nothing for our review.8

8 White does not separately enumerate as error that the evidence for the

murder, felony murder, and aggravated battery counts was insufficient under Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Although we have often reviewed the sufficiency of the evidence as a matter of constitutional due process when an appellant raises a general-grounds claim on appeal, see King, 316 Ga. at 616 n.8, many of us question that approach and

15 King, 316 Ga. at 616.

3. White claims that the trial court abused its discretion by

admitting five pre-incision autopsy photographs of Tyrael’s body

because they were not relevant under OCGA § 24-4-401 (“Rule 401”)

and unduly prejudicial under OCGA § 24-4-403 (“Rule 403”). White’s

claim fails.

At trial, White disputed the medical examiner’s conclusion that

codeine poisoning caused Tyrael’s death, contending that other

factors could have contributed to his death, such as his traumatic

brain injury. The State authenticated autopsy photographs,

contending that the photographs were relevant to upcoming

testimony. On voir dire, an investigator in the medical examiner’s

would be open to reexamining it in a case where the issue is properly presented. See id. (“[M]any of us question whether it is proper for this Court to import Jackson into an appellate review of the general grounds (or to otherwise rely on Jackson as part of that analysis).”); see also Madera v. State, 318 Ga. 593, 595 n.2 (899 SE2d 132) (2024) (noting our unease with the practice of importing a Jackson analysis into an appellate review of the general grounds); Priester v. State, 317 Ga. 477, 484 n.13 (893 SE2d 751) (2023) (same); Johnson v. State, 316 Ga. 672, 682 n.4 (889 SE2d 914) (2023) (same). However, like in King, we need not determine the correctness of that practice today because the evidence against White was constitutionally sufficient to affirm her conviction as to the malice murder count; the felony murder count was vacated by operation of law; and the aggravated battery count merged into the malice murder count. 16 office conceded that the photographs did not “identif[y] the cause of

death of Tyrael McFall.” White’s counsel then objected, contending

that the photographs were “unnecessary and prejudicial.” The State

responded that the medical examiner would use the photographs in

her testimony to explain her investigation into Tyrael’s cause of

death (and she later did). The trial court admitted the photographs

over White’s objection. In its later order denying White’s motion for

new trial, the trial court explained that the photographs “were

relevant to the issue of [Tyrael’s] cause of death” under Rule 401

because they “had the tendency to make the existence of the fact that

Tyrael died of codeine poisoning, and not from some other injury or

abuse, such as smothering, more probable,” and that it had “weighed

the probative value of the five photos and . . . determined that their

value was not substantially outweighed by the danger of unfair

prejudice” because “the photos were not gruesome or of the nature

to inflame the jury.” On appeal, White contends that the

photographs were not relevant under Rule 401 because they did not

prove the cause of Tyrael’s death by “poisoning and not physical

17 injury,” and that their probative value, if any, was substantially

outweighed by the danger of unfair prejudice under Rule 403

because they were “graphic” and “shed no light on the internal cause

of death.” (Emphasis omitted and in original.)

“[W]e generally evaluate the admissibility of autopsy

photographs under OCGA §§ 24-4-401, 24-4-402 [(“Rule 402”)], and

24-4-403.” Mitchell v. State, 307 Ga. 855, 863 (838 SE2d 847) (2020).9

Important here, “[a]utopsy photographs may be relevant and

probative to show the nature and location of a victim’s injuries, even

if the cause of death is not disputed.” Allen v. State, 307 Ga. 707, 710

(838 SE2d 301) (2020). “We review a trial court’s evidentiary rulings

under an abuse of discretion standard of review.” Williams v. State,

9 Rule 401 defines “relevant evidence” as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 provides that “[a]ll relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.” And under Rule 403, “[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.” 18 302 Ga. 474, 478 (807 SE2d 350) (2017) (citation and punctuation

omitted).

Here, the trial court did not abuse its discretion in concluding

that the autopsy photographs were relevant under Rule 401. At

trial, White contested Tyrael’s cause of death by arguing that other

trauma Tyrael experienced—such as the “traumatic brain injury”

his father inflicted on him, and not codeine poisoning—caused his

death. The record shows that the State addressed White’s argument

in part with testimony from the medical examiner, who used the

autopsy photographs to explain that her investigation into Tyrael’s

cause of death included determining if trauma that could be

observed on an external examination contributed to his death. And

the medical examiner concluded that the minor external injuries she

identified as part of the autopsy—and which she was able to point

out to the jury in the photographs—did not contribute to Tyrael’s

death. Because the photographs helped the medical examiner

explain her investigation into Tyrael’s cause of death, they made

“the existence” of external injuries as the cause of Tyrael’s death

19 “less probable than it would be without the evidence.” See Johnson

v. State, 316 Ga. 672, 683 (889 SE2d 914) (2023) (holding that the

trial court did not abuse its discretion in admitting five autopsy

photographs because they “assisted the medical examiner in

describing the nature and severity of [the victim’s] injuries” and

“were highly relevant to the issues of both how and when the injuries

were sustained”).

Additionally, White has not established that the trial court

abused its discretion in concluding that the probative value of the

photographs was not substantially outweighed by the danger of

unfair prejudice under Rule 403. White complains that the

photographs were unfairly prejudicial because they were “graphic.”

But the photographs were neither especially graphic nor gruesome;

they did not depict autopsy incisions, and the medical examiner

explained that the photographs illustrated only minor external

trauma. See Pike v. State, 302 Ga. 795, 799-800 (809 SE2d 756)

(2018) (explaining that the challenged autopsy photographs were

admissible under Rule 403 because they did “not depict the victim’s

20 autopsy incisions, and they [were] not especially gory or gruesome

in the context of autopsy photographs in a murder case” and that

“they were relevant to show the nature and location of the victim’s

injuries, which corroborated the State’s evidence of the

circumstances of the killing”). And the probative value of the

photographs was high because they helped the medical examiner

explain how she ruled out other possible causes of death—such as

trauma—instead of codeine poisoning. Therefore, the probative

value of the photographs was not substantially outweighed by the

danger of unfair prejudice, if any. See also Johnson, 316 Ga. at 683

(“And although the [autopsy] photographs may have been graphic,

we cannot say the trial court abused its discretion in concluding that

their probative value was not substantially outweighed by the

danger of unfair prejudice.”). We therefore cannot say that the trial

court abused its discretion in admitting the autopsy photographs

under Rule 403.

4. White also claims that the trial court abused its discretion

by denying her motion to sever Counts 5 and 7 through 16 from the

21 other charges in the indictment. Prior to trial, White moved to sever

Counts 5, 7, and 8 (identity fraud), Counts 9 through 14 (financial-

transaction card fraud), Count 15 (second-degree forgery), and

Count 16 (RICO) (collectively, the “financial counts”), from the

remaining counts (the “murder counts”). At a pre-trial hearing,

White contended that the strong evidence supporting the financial

counts—which White’s trial counsel characterized as “all these bad

things about Ms. White”—would unfairly prejudice her with respect

to the murder counts. The State responded that each of the financial

counts at issue and listed above was intrinsic to the RICO charge in

Count 16 and to the murder counts because they provided a “basis

for the defendant’s motive.” Without making specific findings, the

trial court denied White’s motion from the bench.

“[A] defendant has a right to severance where the offenses are

joined solely on the ground that they are of the same or similar

character because of the great risk of prejudice from a joint

disposition of unrelated charges.” Carson v. State, 308 Ga. 761, 764-

765 (843 SE2d 421) (2020) (citation and punctuation omitted).

22 “However, where the joinder is based upon the same conduct or on a

series of acts connected together or constituting parts of a single

scheme or plan, severance lies within the sound discretion of the

trial judge since the facts in each case are likely to be unique.” Price

v. State, 316 Ga. 400, 404 (888 SE2d 469) (2023) (citation and

punctuation omitted). “[M]ultiple offenses are not joined together

‘solely because they are the same or similar character’ if evidence of

one offense would be admissible at a separate trial for the other.”

McCullum v. State, 318 Ga. 485, 499 (899 SE2d 171) (2024) (citation

omitted). “Typically, a trial court does not abuse its discretion in

denying a motion to sever where evidence of one charge would be

admissible in the trial of the other and there is no evidence that the

joinder confused or misled the jury.” Id. (citation omitted).

(a) No Severance as of Right for Counts 5, 7 through 14, and 16

To begin, White has not established that she had “an ‘absolute

right’ to sever” Counts 5, 7 through 14, and 16 from Counts 1

through 4 and 6 because she has not shown that those “charges

[were] joined together solely because they [were] of the same or

23 similar character.” McCullum, 318 Ga. at 499 (citation and

punctuation omitted). As the State noted at the pre-trial hearing on

White’s motion to sever, it expected the evidence supporting the

financial counts to demonstrate White’s motive for murdering

Tyrael. At trial, to prove the allegations in Counts 5, 7 through 14,

and 16, the State introduced documentary evidence obtained from

White’s computer, e-mail accounts, and credit card statements

showing that several credit cards were activated using Tyrael’s

identifying information and that those credit cards were used to

conduct transactions and acquire property. The State showed that

each of these crimes was completed in a ten-month period before and

after Tyrael’s death and using the identity of her minor child. The

State argued that this evidence demonstrated that greed was a

motivating factor in White murdering Tyrael. Because the evidence

of Counts 5, 7 through 14, and 16 supported the State’s theory of

motive—and were not joined “solely because they are of the same or

similar character”—White has not shown that she had an absolute

right to sever. See Doleman v. State, 304 Ga. 740, 744-745 (822 SE2d

24 223) (2018) (explaining that “a defendant is not entitled to severance

where a series of similar crimes ‘constituted parts of a single scheme

or plan,’ even though acts occurred over a period of more than two

weeks”) (citation and punctuation omitted).

(b) The Trial Court Did Not Abuse Its Discretion in Declining

to Sever Counts 5, 7 through 14, and 16

(i) Having concluded that severance of Counts 5, 7 through 14,

and 16 was not mandatory, we must evaluate whether the trial court

nonetheless abused its discretion by denying White’s motion to

sever. To begin, White has not pointed to any evidence, and we see

none, that the joinder of Counts 5, 7 through 14, and 16 “confused

or misled the jury.” McCullum, 318 Ga. at 499. To the contrary, the

verdicts show that the jury “understood the law and the evidence”

specific to this case; for example, it reached the nuanced conclusion

that two of the overt acts enumerated in Count 16 (RICO) did not

constitute a pattern of racketeering activity under OCGA § 16-14-4

(c). See, e.g., Carson, 308 Ga. at 765 (“There is no evidence in this

case that the combined trial of the charges confused or misled the

25 jury, and the verdict itself, including [the defendant’s] acquittal for

battery, shows that the jury fully understood the law and evidence.”)

(citation and punctuation omitted).

As to whether evidence related to Counts 5, 7 through 14, and

16 would have been admissible in the trial of Counts 1 through 4

and 6, we cannot say that the trial court abused its discretion in

concluding that the evidence was relevant, because the evidence lent

support to the State’s theory that at least part of White’s motive to

murder Tyrael was to financially exploit him. See OCGA § 24-4-401.

To prove the allegations in Counts 5, 7 through 14, and 16, the State

introduced documentary evidence obtained from White’s computer,

e-mail accounts, and credit card statements showing several credit

cards were activated using Tyrael’s identifying information and that

those credit cards were used to conduct transactions and acquire

property. The State argued that each of these crimes was connected

to the murder because almost all of them were completed in a ten-

26 month period before and after Tyrael’s death.10 And the State

showed that White used Tyrael’s identity to perpetrate each of these

crimes, thus enhancing the probative value of those crimes to the

prosecution of Tyrael’s murder. The State also introduced evidence

that White omitted material information regarding Tyrael’s medical

condition on a life insurance application for a policy insuring

Tyrael’s life; collected Tyrael’s Social Security benefit after he died,

even though the benefit terminated upon Tyrael’s death;

misrepresented her salary in an application to an entity that

administers financial grants to crime victims and their caregivers,

claiming that Tyrael was such a victim; and falsely represented her

total monthly income in a grant application to the Brain and Spinal

Injury Trust Fund Commission, seeking funds to pay for Tyrael’s

transportation. In addition, the State introduced evidence at trial

that White had stated that Tyrael “needed around-the-clock care”

and “was a burden” to her, including because Tyrael’s physical

10 We note that some of the overt acts alleged in Count 16 (RICO) were

not committed within this ten-month window. 27 condition “limited . . . what job locations [she could] go to”; this

allowed the jury to infer that White perceived her financial position

to be negatively affected by Tyrael’s ongoing medical needs. The

State argued that the foregoing evidence demonstrated that greed

was an important aspect of White’s motivation to murder Tyrael.

And this evidence made the State’s financial motive argument “more

probable . . . than it would [have been] without the evidence.” See

OCGA § 24-4-401. The trial court therefore did not abuse its

discretion in concluding that the evidence was relevant and

probative. See id. See also, e.g., Jordan v. State, 313 Ga. 841, 845

(874 SE2d 67) (2022) (“Though motive is not an essential element of

any offense, evidence of motive is generally relevant in murder

prosecutions.”).

As to whether the danger of unfair prejudice substantially

outweighed the probative value of the evidence for Counts 5, 7

through 14, and 16 in a trial on Counts 1 through 4 and 6, see OCGA

§ 24-4-403, the trial court’s implicit conclusion that the danger of

unfair prejudice did not substantially outweigh the probative value

28 of the evidence was not an abuse of discretion. Indeed, “the exclusion

of evidence under Rule 403 is an extraordinary remedy which should

be used only sparingly.” Olds v. State, 299 Ga. 65, 70 (786 SE2d 633)

(2016) (citation and punctuation omitted). As we noted above, the

evidence the State offered in support of Counts 5, 7 through 14, and

16 was relevant and probative of the State’s financial-motive theory.

And although we cannot say that the probative value was extremely

high,11 it was nonetheless probative: the State used the evidence

from those counts to argue that White exploited Tyrael for financial

11 Specifically, the State’s financial-motive theory appears to have suffered from a notable weakness: the State did not logically explain why Tyrael’s murder was necessary to continue White’s alleged fraud—especially considering that White was alleged to have committed extensive fraud against Tyrael and others before Tyrael’s death, and that Tyrael’s death terminated at least some sources of financial support such as Social Security benefits. In other words, it appears that the State did not explain how Tyrael prevented White from continuing the pattern of fraud that she allegedly engaged in long before Tyrael’s death—reasoning that would have been important to properly establish motive for his murder. See Harris v. State, 314 Ga. 238, 271-272 (875 SE2d 659) (2022) (examining the logical chain of reasoning of the State’s motive theory in determining the probative value of other acts offered to prove the appellant’s motive). But even if the State did not show how all of the financial crimes were directly connected to or dependent on Tyrael’s death, the financial crimes all showed that (at a minimum) White was strongly motivated by money and was willing to exploit her son for financial gain. And that, in turn, could support the State’s narrative that White killed Tyrael for money, too.

29 gain in life, and then used his death to acquire even more money

(such as life insurance proceeds), to obtain access to additional funds

(through additional credit cards White fraudulently opened or

attempted to open), and to more generally shed what at least one

witness testified that White had characterized as the “burden”

associated with caring for Tyrael.12 And the State had a real need to

establish White’s motive, because White put motive at issue by

denying that she killed Tyrael (even by mistake), and the evidence

in the case involved a significant amount of circumstantial evidence.

See Harris v. State, 314 Ga. 238, 272 (875 SE2d 659) (2022); see also

Armstrong v. State, 310 Ga. 598, 603 (852 SE2d 824) (2020)

(explaining that “’the prosecutorial need for the other acts evidence

showing gang membership was high’ because, without it, it is

unclear what motive [appellant] would have had to shoot [victim] in

a crowded park”) (citation omitted).

As to the “danger of unfair prejudice” and the “needless

12 From this latter point, the jury would have been authorized to infer

that any purported “burden” in caring for Tyrael would have included a financial burden, including for ongoing medical expenses. 30 presentation of cumulative evidence,” see OCGA § 24-4-403, we

acknowledge that the cumulative force of evidence supporting ten

counts of financial crimes, including one count that lists dozens of

overt acts, could have resulted in prejudice to White insofar as it

depicted her as an unscrupulous person who repeatedly exploited

the people around her—including her disabled son. And there is at

least some chance that given the quantity and nature of these counts

and the overt acts alleged in Count 16, the jury could have drawn

the improper inference that if White committed financial crimes

against her son, she also must have murdered him—which could

pose a real possibility of unfair prejudice. See, e.g., Harris, 314 Ga.

at 263 (“Rule 403’s term ‘unfair prejudice’ speaks to the capacity of

some concededly relevant evidence to lure the factfinder into

declaring guilt on an improper basis rather than on proof specific to

the offense charged.”) (citation and punctuation omitted).

But that does not seem likely, given the unique facts and

circumstances of this case. Indeed, the potential risk of unfair

prejudice did not “substantially outweigh[ ]” the probative value of

31 the relevant evidence presented at trial. That is especially true given

that the nature of the crimes alleged in Counts 5, 7 through 14, and

16 were financial offenses—as opposed to (for example) violent

crimes that may have posed more of a concern for suggesting

improper propensity to murder—and given the evidence presented

about the sequence of events the night Tyrael died that pointed to

White’s participation in Tyrael’s murder at least as a party to the

crime. In particular, in addition to other circumstantial evidence of

White’s involvement in Tyrael’s death noted above, Sierra’s

testimony that she saw Schullerman administer Tyrael’s medicine

at approximately 7:30 p.m. and evidence that White called 911 at

10:44 p.m.—approximately 3 hours later—aligns with the

pharmacokinetics expert’s testimony that the codeine’s peak toxic

effect would have been between 1.5 and 4 hours after ingestion.

That, in turn, would have allowed the jury to infer that Schullerman,

White, or both, intentionally administered a fatal dose of Tylenol 3

or 4 to Tyrael, left Tyrael with Sierra during a planned outing that

evidence later suggested was a ruse, called Sierra a number of times

32 to check on Tyrael’s status, and then returned home well after

Tyrael ingested the codeine but seemingly before his death. And the

jury also heard evidence from which it could have inferred that

White was not truthful during interviews with Detective Payne

regarding her own alleged illness that led to her being prescribed

Tylenol 3, which contained codeine, in the days before Tyrael’s

death.

(ii) We acknowledge that at first glance, certain aspects of this

case may make it appear similar to Harris, 314 Ga. 238, in which

this Court reversed a defendant’s conviction for murdering his son

based on the trial court’s failure to sever certain sex crimes and the

State’s introduction of extensive, improper “evidence of [the

defendant’s] sexual activities,” where the State argued that the

evidence was admissible to show the defendant’s motive and intent

(among other things). See Harris, 314 Ga. at 282-283 (explaining

that “[e]xtensive evidence that Appellant was a man who commits

sex crimes against minors — admitted without any limitation —

likely had a substantial ‘smear’ effect that forced Appellant to

33 proceed at an unfair disadvantage when trying to defend himself

against” a prosecution for the murder of his minor son, which we

characterized as being “of an entirely different character”). But a

closer examination of that case reveals a number of material

differences.

To begin, much of the evidence at issue in Harris was of a more

graphic and inflammatory nature than the evidence supporting the

financial crimes charged here. In particular, significant amounts of

evidence at issue in Harris included (among other things) vulgar

sexual messages the defendant sent to minors; lurid photographs of

the defendant’s sex organ that he sent to various women; and

evidence that the defendant had hired prostitutes. 314 Ga. at 272-

280. In conducting a Rule 403 balancing as to each of these

categories of evidence, we described the probative value as “trivial,”

“minimally probative,” and “essentially non-existent,” and

characterized the unfair prejudice flowing from that evidence as

“extremely high,” “quite high,” and “substantially greater” than the

probative value, such that the evidence should have been excluded

34 under Rule 403. See id. In this case, by contrast, the financial-crimes

evidence at issue is more closely related to the murder counts than

the sexual misconduct evidence was related to the murder counts in

Harris, and was therefore more probative. And, importantly, the

evidence of financial crimes presented in this case was less

provocative, and therefore less likely to inflame the jury, than the

evidence at issue in Harris, which we concluded “was not relatively

benign or merely cumulative.” Compare, e.g., Harris, 314 Ga. at 272-

280, 284 (cleaned up).

We also note that the harm posed by the erroneously-admitted

evidence in Harris was clearer than the harm White claims here.

That is so in part because of the inflammatory nature of much of the

evidence at issue in Harris, and also because the “determination of

[the defendant’s] intent was a close question,” which meant that the

“high risk of prejudice from [ ] improperly admitted evidence might

be offset only by the most compelling properly admitted evidence of

guilt,” see 314 Ga. at 284-285—but there, the evidence of intent

presented at trial was largely circumstantial and was also

35 conflicting. See id.; see also id. at 288-289 (“When the State’s

properly admitted evidence is not viewed only positively but rather

is balanced against the evidence elicited by Appellant, the proof of

Appellant’s guilt was not ‘overwhelming,’ ‘compelling,’ or even

strong.”). Here, by contrast, the State introduced more direct

evidence of White’s intent, such as Judy Johnson’s testimony of

White’s past statements to the effect that White “shouldn’t have had

to put up with something [Tyrael’s] dad did to him” and that Tyrael

was a “burden” to her.

Accordingly, we cannot say that the trial court would have

abused its discretion under Rule 403 in admitting the evidence of

Counts 5, 7 through 14, and 16 in a trial on Counts 1 through 4 and

6. And given that conclusion, we cannot say that the trial court

abused its discretion in denying White’s motion to sever. See, e.g.,

McCullum, 318 Ga. at 500 (holding that the trial court did not abuse

its discretion in denying a motion to sever a count for the rape of one

person from four other counts regarding the rape and murder of

another person).

36 (c) It Is Highly Probable That the Trial Court’s Assumed Error

in Failing to Sever Count 15 Did Not Contribute to the Verdicts

White also contends that the trial court abused its discretion

in declining to sever Count 15, which alleged that White and

Schullerman committed second-degree forgery in 2015 by

fabricating a prescription from a psychiatrist for Xanax, from the

murder counts. But even assuming (without deciding) that the trial

court abused its discretion in denying White’s motion to sever Count

15 from the murder counts, any such error was harmless because it

is highly probable that the error did not contribute to the verdicts.

Cf. Howell v. State, 307 Ga. 865, 875 (838 SE2d 839) (2020)

(standard of appellate review for nonconstitutional harmless error).

“In determining whether the error was harmless, we review the

record de novo and weigh the evidence as we would expect

reasonable jurors to have done so.” Jackson v. State, 306 Ga. 69, 80

(829 SE2d 142) (2019) (citation and punctuation omitted).

At trial, the State contended that White’s conduct in helping

Schullerman procure a forged Xanax prescription in 2015 tended to

37 show White’s use of illicit substances. But other evidence was

presented from which the jury could have inferred that White used

illicit substances, like cocaine, such that the evidence supporting

Count 15 was to some extent cumulative of that other properly-

admitted evidence. And even if the evidence related to Count 15 had

been excluded, the jury still would have heard evidence of White’s

financial motive to murder Tyrael—even apart from any alleged use

of illicit substances: the alleged identity fraud and financial-

transaction card fraud in Counts 5, 7 through 14, and 16, among

other acts of fraud that White previously committed. As a result, the

jury was aware—even without Count 15—that White committed

other acts of fraud and that she may have used illicit substances.

Under these circumstances, it is highly probable that the trial

court’s assumed error in declining to sever Count 15 did not

contribute to the verdicts. See, e.g., Kirby v. State, 304 Ga. 472, 487

(819 SE2d 468) (2018) (“[T]he jury was already aware that

[Appellant] had committed other violent crimes. And any prejudice

from the evidence that he had committed two other sets of violent

38 crimes rather than one other set was easily offset by the other

compelling evidence against Appellant[.]”); Hood v. State, 299 Ga.

95, 105-106 (786 SE2d 648) (2016) (explaining that erroneous

admission of defendant’s drug-dealing was harmless in part due to

properly admitted evidence that defendant dealt similar drugs

under other circumstances).

5. White claims that the trial court erred by denying her

“Motion to Quash — General and Special Demurrers” regarding

Count 16 of the indictment. As discussed above, the State alleged in

Count 16 that White and Schullerman violated the RICO Act, OCGA

§ 16-14-4 (c), by engaging in a scheme that involved murdering

Tyrael to obtain money and property. Before trial, White generally

and specially demurred as to Count 16, and the trial court denied

both. At trial, the jury found that White was guilty of Count 16,

noting on the verdict form that White’s conduct for all but 2 of the

37 overt acts constituted a pattern of racketeering activity under

OCGA § 16-14-4 (c).

(a) General Demurrer.

39 White contends that the trial court erred in denying her

general demurrer because Count 16 failed to allege the elements of

the offense and to “state the offense in the terms and language of

[OCGA § 17-7-54] or so plainly that the nature of the offense charged

may be easily understood by the jury.” OCGA § 17-7-54 (a). The trial

court did not err in concluding that Count 16 of the indictment was

sufficient to withstand White’s general demurrer.

“A general demurrer challenges the sufficiency of the

substance of the indictment.” Green v. State, 292 Ga. 451, 452 (738

SE2d 582) (2013) (citation and punctuation omitted). Consequently,

“[o]ur review of the trial court’s ruling does not turn on whether the

indictment could have been made clearer or more definite, but most

importantly whether it ‘contains the elements of the offense

charged.’” State v. Mondor, 306 Ga. 338, 341 (830 SE2d 206) (2019)

(citation omitted). But if an indictment “‘fails to allege all the

essential elements of the crime or crimes charged,’ including the

required mens rea, it violates due process, is void, and cannot

withstand a general demurrer.” Mondor, 306 Ga. at 341 (quoting

40 Jackson v. State, 301 Ga. 137, 139-140 (800 SE2d 356) (2017)).

“Indeed, we have before explained that the true test of the

sufficiency of an indictment to withstand a general demurrer is if all

the facts which the indictment charges can be admitted, and still the

accused be innocent, the indictment is bad; but if, taking the facts

alleged as premises, the guilt of the accused follows as a legal

conclusion, the indictment is good.” Mondor, 306 Ga. at 341 (citation

and punctuation omitted). We review a trial court’s ruling on a

general demurrer de novo. See Budhani v. State, 306 Ga. 315, 319

(830 SE2d 195) (2019).

Here, Count 16 charged White with violating OCGA § 16-14-4

(c). The relevant subsections of OCGA § 16-14-4 provide:

(a) It shall be unlawful for any person, through a pattern of racketeering activity[13] or proceeds derived

13 OCGA § 16-14-3 (4) defines “pattern of racketeering activity” as:

(A) Engaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such acts occurred after July 1, 1980, and that the last of such acts occurred within four years, excluding any periods of imprisonment, after the commission of a prior act of

41 therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money. ... (c) It shall be unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section. A person violates this subsection when: (1) He or she together with one or more persons conspires to violate any of the provisions of subsection (a) or (b) of this Code section and any one or more of such persons commits any overt act to effect the object of the conspiracy; or (2) He or she endeavors to violate any of the provisions of subsection (a) or (b) of this Code section and commits any overt act to effect the object of the endeavor.

OCGA § 16-14-4 (a), (c). Count 16 alleged that White and

Schullerman “did unlawfully conspire to acquire . . . control of money

and personal property through the pattern of racketeering as

racketeering activity; or (B) Engaging in any one or more acts of domestic terrorism as described in paragraph (2) of Code Section 16-11-220 or any criminal attempt, criminal solicitation, or criminal conspiracy related thereto. “‘Racketeering activity’ means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment under the laws of this state involving:” “[f]orgery in any degree in violation of Code Section 16-9-1;” “[i]llegal use of financial transaction cards in violation of Code Sections 16-9-31, 16-9-32, 16-9-33, and 16-9-34;” or “[i]dentity fraud in violation of Article 8 of Chapter 9 of this title[,]” among 40 other offenses. OCGA § 16-14-3 (5) (A) (xvi), (xvii), and (xx). 42 described in Part I-III [of the indictment] . . . and did commit at least

one overt act in furtherance of said conspiracy.” See OCGA § 16-14-

4 (c). The State characterized Part I as a “scheme summary” that

explained how White and Schullerman “conspired and endeavored

in a scheme” “to support their lifestyle, their drug habit, and to

obtain a life free of the care of a disabled child,” and linked the

alleged scheme to several alleged overt acts. Part II of the

indictment alleged that White and Schullerman committed identity

fraud against Tyrael, committed financial-transaction card fraud,

and murdered Tyrael, and Part III of the indictment alleged that

they did so in furtherance of the scheme alleged in Part I. See OCGA

§ 16-14-3 (5) (A) (xx) (providing that “racketeering activity” includes

identity fraud); OCGA § 16-14-3 (5) (A) (xvii) (providing that

“racketeering activity” includes “[i]llegal use of financial transaction

cards in violation of” OCGA § 16-9-33); OCGA § 16-14-3 (5) (A) (iv)

(providing that “racketeering activity” includes malice murder). See

also OCGA § 16-14-4 (c) (1). And Part III ties Parts I and II together

by alleging that

43 [t]he overt acts in concert with the scheme . . . constitute a conspiracy to engage in a pattern of racketeering activity in that they were committed in furtherance of one or more . . . schemes or transactions that had the same or similar intents, results, accomplices, victims or methods of commission or otherwise were interrelated by distinguishing characteristics.

See OCGA § 16-14-3 (4) (A). In sum, Count 16 alleged that White

and Schullerman committed 37 overt acts, including financial-

transaction card fraud, identity fraud, and the murder of Tyrael, to

further their scheme of “obtain[ing] money and property” with the

object of “support[ing] their lifestyle, their drug habit, and . . .

obtain[ing] a life free of the care of a disabled child.” Because White

“cannot admit to the allegations” in Count 16 and “be innocent of the

crime[ ] for which [s]he was charged,” the trial court did not err in

denying White’s general demurrer.14 Budhani, 306 Ga. at 321

(affirming the denial of a general demurrer because the defendant

could not “admit to the allegations in the indictment and be innocent

14 Indeed, if White admitted to committing, with Schullerman, any two

or more of the overt acts alleged to further a scheme of “obtain[ing] money and property” with the object of “support[ing] their lifestyle, their drug habit, and . . . obtain[ing] a life free of the care of a disabled child”—the allegations contained in Count 16—she would be guilty of violating OCGA § 16-14-4 (c). 44 of the crimes for which he was charged”).

(b) Special Demurrer.

White also contends that the trial court erred in denying her

special demurrer. A special demurrer “challenges the sufficiency of

the form of the indictment.” Kimbrough v. State, 300 Ga. 878, 880

(799 SE2d 229) (2017) (citation, punctuation and emphasisomitted).

“By filing a special demurrer, the accused claims not that the charge

in an indictment is fatally defective and incapable of supporting a

conviction (as would be asserted by general demurrer), but rather

that the charge is imperfect as to form or that the accused is entitled

to more information.” Id. at 880-881 (citation and punctuation

omitted). “[A]n indictment comports with constitutional due process

and is sufficient to withstand a special demurrer if it contains the

elements of the offense charged, sufficiently informs the defendant

of what he must be prepared to defend against, and in the event of

another prosecution for the same offense, enables the defendant to

determine accurately whether he may plead a former conviction or

acquittal.” Smith v. State, 303 Ga. 643, 647 (814 SE2d 411) (2018).

45 “We review a ruling on a special demurrer de novo to determine the

legal sufficiency of the allegations in the indictment.” Hinkson v.

State, 310 Ga. 388, 392 (850 SE2d 41) (2020) (citation and

punctuation omitted).

White contends that Count 16 should have been quashed based

on a special demurrer because Part III of Count 16 did not allege (1)

whether the alleged RICO activity was committed in furtherance of

an incident, scheme, or transaction; and (2) of which alleged factual

incident, scheme, or transaction the alleged racketeering activity is

alleged to be in furtherance. See OCGA § 16-14-3 (4). However, the

text of Count 16 belies White’s arguments because Part I of that

Count—titled “Scheme Summary”—begins by alleging that White

and Schullerman “conspired and endeavored in a scheme to obtain

money and property.” It then goes on to describe, in detail, the

conduct that furthered the alleged scheme, including White and

Schullerman’s procurement of “Tylenol with codeine” to murder

Tyrael and use of Tyrael’s identity to activate “lines of credit” to pay

for “food, travel, pay pal services, electronics, and other household

46 items.” And it ends by previewing “Part II — The Overt Acts,”

alleging that after White and Schullerman murdered Tyrael, they

“continued their scheme to get money and property by financially

exploiting Tyrael in death . . . as enumerated in the overt acts

below.” Part II then enumerates and describes the 37 overt acts that

the State alleged White and Schullerman committed in furtherance

of their criminal scheme. Count 16 thus alleged facts identifying the

co-conspirator and the overt acts of racketeering activity that were

alleged to “further[ ]” a “scheme[ ]” that “effect[ed] the object of the

conspiracy.” OCGA §§ 16-14-3 (4) (A), 16-14-4 (c) (1). Compare

Kimbrough, 300 Ga. at 882 (explaining that an indictment count

alleging a violation of OCGA § 16-14-4 could not survive a special

demurrer because “the indictment fail[ed] to set forth any facts that

show a connection between the enterprise and the racketeering

activity, and the nature of that connection [was] not apparent from

the identification of the enterprise, the general description of the

racketeering activity in [the count], or the subsequent counts

charging more particularly the predicate acts of racketeering”).

47 Accordingly, White’s arguments fail.

(c) Other Challenges to Count 16 of the Indictment.

White also asserts that Parts I and II of Count 16 contained

“improper comments” on her character “in innuendo” that denied

her “a fair trial and due process as protected by the Fifth, Sixth and

Fourteenth Amendment[s] to the [United States] Constitution,”

“Art. I, Sec. I, Para[graphs] I and II of the Georgia Constitution,”

and “OCGA § 24-4-404 as to the character of the accused.”15 White

elaborates by contending that the statements at issue “read[ ] like a

closing argument or opening statement and should not have [been]

submitted to the jury” because they were of the nature of “a

continuing witness or continuing argument . . . taken into the jury

room.” Among others, White points to the following references as

“prejudicial”: “their lifestyle, drug habit and to obtain a life free of

15 Article I, Section I, Paragraph I of the Georgia Constitution of 1983

provides: “No person shall be deprived of life, liberty, or property except by due process of law.” Article I, Section I, Paragraph II of the Georgia Constitution of 1983 provides: “Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.” 48 the care of a disabled child”; “meeting co-defendant Schullerman

through an online dating service”; “the two residing together”; and

“being ‘engaged in a scheme to defraud banks and commercial

providers . . . through misappropriation of Tyrael’s identifying

information.’”

At trial, White raised these arguments in a filing titled “Motion

to Quash — General and Special Demurrers” and raises them on

appeal through that lens. We thus review these arguments about

specific allegations contained in Count 16 as part of White’s

complaint about the denial of her special demurrer.

White has not shown that the trial court erred in denying her

special demurrer based on her arguments about “improper

comments” on her character. To begin, “an indictment is not

evidence,” Cash v. State, 297 Ga. 859, 863 n.4 (778 SE2d 785) (2015),

and the trial court instructed the jury on that point. Moreover, the

language of Count 16 accurately described the alleged racketeering

scheme charged by explaining in Part I what the scheme was and

then setting forth the 37 alleged overt acts that White and

49 Schullerman allegedly committed to further that scheme. See, e.g.,

Malloy v. State, 293 Ga. 350, 360 (744 SE2d 778) (2013) (holding

that an indictment with an “extensive ‘background’ section” that the

appellant contended contained “politically charged, misleading, and

prejudicial surplusage likely to diminish the presumption of

innocence to which he is entitled and [was] prejudicial and

redundant” survived a special demurrer because “the challenged

language accurately describe[d] the offenses charged and made the

charges more easily understood” and that “mere surplusage does not

vitiate an otherwise valid indictment”). Accordingly, White has not

shown that the trial court erred in denying her special demurrer on

these bases.

6. White also contends that trial counsel provided

constitutionally ineffective assistance by failing to (a) adequately

investigate White’s case; (b) request a jury instruction on

involuntary manslaughter; (c) object to the virtual testimony of a

witness who testified at trial; (d) subpoena and call Schullerman as

a witness; and (e) call a handwriting expert to testify at trial. For

50 the following reasons, all of White’s ineffective assistance of counsel

claims fail.

“To prevail on a claim of ineffective assistance of counsel, a

defendant generally must show that counsel’s performance was

deficient and that the deficient performance resulted in prejudice to

the defendant.” Perkins v. State, 313 Ga. 885, 901 (873 SE2d 185)

(2022) (citing Strickland v. Washington, 466 U.S. 668, 687-695 (104

SCt 2052, 80 LE2d 674) (1984)). “To satisfy the deficiency prong, a

defendant must demonstrate that his attorney ‘performed at trial in

an objectively unreasonable way considering all the circumstances

and in the light of prevailing professional norms.’” Perkins, 313 Ga.

at 901 (citation omitted). This showing requires a defendant to

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

was adequate. Id. (citation omitted). A defendant attempting to

carry his burden must show that “no reasonable lawyer would have

done what her lawyer did or would have failed to do what her lawyer

did not.” Lopez v. State, 318 Ga. 664, 669 (898 SE2d 441, 446) (2024).

“To satisfy the prejudice prong, a defendant must establish a

51 reasonable probability that, in the absence of counsel’s deficient

performance, the result of the trial would have been different.”

Perkins, 313 Ga. at 901. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Sullivan v.

State, 308 Ga. 508, 510 (842 SE2d 5) (2020) (quoting Strickland, 466

U.S. at 694). “This burden is a heavy one.” Young v. State, 305 Ga.

92, 97 (823 SE2d 774) (2019).

“Ineffectiveness claims involve mixed questions of law and fact,

and ‘a trial court’s factual findings made in the course of deciding an

ineffective assistance of counsel claim will be affirmed by the

reviewing court unless clearly erroneous,’ whereas conclusions of

law based on those facts are reviewed de novo.” Sullivan, 308 Ga. at

510-511 (citation omitted). “If an appellant fails to meet his or her

burden of proving either prong of the Strickland test, the reviewing

court does not have to examine the other prong.” Id. (citation and

(a) White contends that trial counsel rendered ineffective

assistance on the grounds that he did not interview Schullerman

52 after his guilty-plea hearing and before White’s trial, and also did

not subpoena and call Schullerman as a witness at trial. White

contends that Schullerman may have possessed exculpatory

evidence and that trial counsel never interviewed Schullerman to

ascertain whether that was so. Trial counsel testified at the motion-

for-new-trial hearing that he asked Schullerman’s counsel if he

could interview Schullerman, but counsel refused the request.

Schullerman’s counsel also testified at the motion-for-new-trial

hearing and explained that her response to White’s counsel’s request

to interview Schullerman was a “hard no.” Trial counsel offered

ample reasoning at the motion-for-new-trial hearing for declining to

call Schullerman as a witness: Schullerman’s counsel did not permit

trial counsel to interview him before trial, and he therefore could not

reasonably estimate what Schullerman’s testimony would be; he

thought Schullerman—who pled guilty to the financial counts in the

indictment—would be an unhelpful witness, with the State using

Schullerman’s testimony to emphasize White’s participation in the

financial crimes; and Schullerman could have contradicted trial

53 counsel’s theory, and Sierra’s testimony, that Schullerman—and not

White—prepared and administered the fatal dose of codeine to

Tyrael.

White has not established that trial counsel’s failure to

interview Schullerman constituted deficient performance. Indeed,

we have in other cases concluded that trial counsel did not perform

deficiently when he attempted to interview a potential witness and

the potential witness refused trial counsel’s request. See Atkinson v.

State, 301 Ga. 518, 527 (801 SE2d 833) (2017) (explaining that the

appellant failed to show trial counsel performed deficiently where

“trial counsel did in fact attempt to interview [two witnesses], but

they refused to speak with her”). And that is what happened here.

Trial counsel requested an interview with Schullerman before

White’s trial, but Schullerman’s counsel responded with a “hard no.”

Under these circumstances, White has not shown that trial counsel’s

strategic decision for declining to call Schullerman as a witness was

“so unreasonable that no competent attorney would have made [it]

under similar circumstances.” McDuffie v. State, 298 Ga. 112, 115-

54 116 (779 SE2d 620) (2015) (holding that the appellant failed to

demonstrate that trial counsel’s “strategic decision not to call” a

potential witness was “entirely unreasonable” where trial counsel

thought that the potential witness would be “more harmful than

helpful”) (citation and punctuation omitted). See also, e.g., Miller v.

State, 293 Ga. 638, 639-640 (748 SE2d 893) (2013) (concluding that

the appellant failed to show that trial counsel performed deficiently

where appellant argued that trial counsel failed to “adequately

investigate his claim” in part because “counsel[ ] tried to interview

the State’s witnesses, but several of them refused”).

(b) White claims that trial counsel was ineffective because he

did not request a jury instruction on involuntary manslaughter.

There are two types of involuntary manslaughter under Georgia

law, and the common element is that the accused “causes the death

of another human being without any intention to do so.” OCGA § 16-

5-3.

Notably, however, White argued at trial that she “never

claimed [Tyrael’s death] was a mistake,” and at the hearing on

55 White’s motion for new trial, her counsel testified that she was

“adamant” that she did not mistakenly administer Tylenol with

codeine to Tyrael. Trial counsel further explained that he did not

request an instruction on involuntary manslaughter because “[w]e

[we]re denying that she did this at all. . . . To have a lesser or

include[d] [charge] that somehow says that she did it would have to,

in my mind at least, for the jury to consider it, there’s admission that

you did the act, which caused the death of the child.” In denying

White’s motion for new trial, the trial court found “that trial counsel,

per his testimony, made a knowing and strategic decision to not

request” a charge for involuntary manslaughter because “it did not

comport with [White’s] defense strategy.”

Even assuming, without deciding, that the evidence presented

at trial would have authorized an instruction on involuntary

manslaughter, “trial counsel’s decision not to pursue [it] was not so

unreasonable that no competent attorney would have made it under

the circumstances.” See, e.g., Lopez, 318 Ga. at 671 (assuming

without deciding that the evidence authorized an involuntary

56 manslaughter instruction, trial counsel’s decision not to pursue that

instruction was not deficient performance, because (among other

reasons) “[t]rial counsel’s decision to pursue an all-or-nothing

defense . . . was consistent with [the appellant’s] interview

statements” and “was not patently unreasonable”). It is well settled

that “‘[d]ecisions about which defenses to present and which jury

charges to request are classic matters of trial strategy, and pursuit

of an all-or-nothing defense is generally a permissible strategy.’”

Gardner v. State, 310 Ga. 515, 519 (852 SE2d 574) (2020) (citation

omitted). And the record supports the trial court’s finding that

counsel believed an involuntary manslaughter instruction would

have constituted an “admission that [White] did the act,” and

therefore would have undermined White’s defense that “she did this

at all.” Moreover, trial counsel’s testimony shows that he pursued

an “all-or-nothing” defense, and that seeking an involuntary

manslaughter instruction would have been inconsistent with that

defense theory. See, e.g., Velasco v. State, 306 Ga. 888, 893 (834

SE2d 21) (2019) (holding that trial counsel did not perform

57 deficiently by failing to request a voluntary manslaughter

instruction, because the appellant maintained during consultations

with counsel and at trial that he acted in self-defense, a theory that

is generally inconsistent with a claim of voluntary manslaughter).

Under these circumstances, trial counsel’s decision not to request an

involuntary manslaughter instruction did not “f[a]ll below a

reasonable standard of attorney conduct.” Smith v. State, 301 Ga.

348, 353-354 (801 SE2d 18) (2017) (rejecting appellant’s contention

that trial counsel performed deficiently by failing to request an

involuntary manslaughter instruction where his “‘whole focus’ was

on a not guilty strategy,” explaining that an “‘all or nothing’ defense

is a permissible trial strategy” where trial counsel desires “to avoid

admitting even to any negligent, much less reckless, intent”).

(c) White contends that trial counsel was ineffective on the

basis that he failed to object to a witness’s virtual testimony. Prior

to trial, the State moved for the trial court to permit Judy Johnson,

who previously resided with White at the Cobb County adult

detention center prior to White’s trial, to testify at trial from

58 Michigan using video-conference technology. At a pretrial hearing,

the State asserted that Johnson needed to testify virtually because

her physician ordered her not to travel from her home in Detroit

because she was pregnant and a cesarean section procedure had

already been scheduled for a time that coincided with White’s trial.

Trial counsel responded that he was “not necessarily opposed to live

testimony” via video conference “if that can be accomplished.” Trial

counsel elaborated that “I would want to make sure—if we do this,

there is some direct video as such that she absolutely has to face Ms.

White. And Ms. White, of course, has the opportunity to confront

her. So to that extent, I’m not opposed to taking testimony by video

for health reasons but with some [ ] careful guarantees.” The State

explained that its plan was to have Johnson testify via “direct live

feed” from a Michigan courtroom. Trial counsel did not respond

further.

At trial, Johnson testified via video-conference technology from

a courthouse in Michigan, and White did not object to Johnson’s

testimony being offered in this way. Johnson testified that she and

59 White previously lived in the same pod at the Cobb County adult

detention center, and that during that time, she heard White explain

to other inmates that the hospital gave Tyrael a fatal dose of codeine.

When some inmates voiced doubts about the plausibility of that

story, White began to sob, telling them that “she shouldn’t have had

to put up with something [Tyrael’s] dad did to him and it was a

burden to her.” Johnson also testified that White said Tyrael “was

in the way of her relationship with her boyfriend because she

couldn’t have a life because he needed around-the-clock care.”

White’s counsel was given the opportunity to cross-examine Johnson

and did so.

At the motion-for-new-trial hearing, trial counsel explained

that he did not object to Johnson’s testimony being provided

virtually because, among other things, he did not want “to be the

cause of there being any harm to [Johnson’s] child based on her

coming to testify”; “[he] felt like her testimony was going to be so

ridiculous, and she would appear so preposterous that that might be

helpful to [White]”; and “[because] [s]he was virtual, [trial counsel

60 thought] maybe she would look even crazier doing something

wherever she was.”

On appeal, White contends that Johnson’s virtual testimony

violated White’s Sixth Amendment right to confront Johnson, a

witness against her, see U.S. Const. Amend. VI, and that trial

counsel’s failure to object to it constituted deficient performance. But

trial counsel’s testimony illustrated how his decision not to object to

Johnson’s virtual testimony was a strategic one. In particular, trial

counsel did not object to Johnson’s virtual testimony because he did

not want to cause harm to Johnson, who was under her physician’s

orders not to travel from her home in Michigan before the birth of

her child, and counsel believed that the location from which Johnson

testified was of little import because he anticipated that Johnson’s

testimony might even be helpful to White. Moreover, trial counsel

rigorously cross-examined Johnson, exposing possible

inconsistencies in her testimony and questioning her credibility.

Under these circumstances, White has not demonstrated that trial

counsel’s decision to not object was so unreasonable that “no

61 competent attorney, under similar circumstances, would have made

it.” Sullivan v. State, 301 Ga. 37, 40 (799 SE2d 163) (2017)

(explaining that trial counsel was not deficient for failing to object

to alleged “testimonial hearsay in violation of [appellant’s] Sixth

Amendment right to confrontation” because it was a strategic

decision) (citation and punctuation omitted).

(d) White contends that trial counsel was ineffective because

he failed to hire and call a handwriting expert to testify at trial to

cast doubt on the November 3, 2014 signature provided to retrieve

White’s Tylenol 3 prescription. The State presented evidence that

White, Schullerman, and White’s mother regularly picked up each

other’s prescriptions from a local pharmacy. White offered into

evidence other signatures that she contended were hers and the

signature purporting to be White’s on the November 3, 2014

prescription. Based on apparent discrepancies between the sample

signatures White offered into evidence and the signature associated

with the Tylenol 3 prescription, White’s trial counsel contended in

closing argument that Schullerman—and not White—signed for the

62 November 3, 2014 Tylenol 3 prescription. The State then rebutted

that claim by presenting evidence that the November 3, 2014

signature was, in fact, White’s by pointing to Sierra’s earlier

identification of the signature as White’s.16 The State also presented

evidence that when Detective Payne asked White if she remembered

signing for the Tylenol 3 prescription, White said that she both

remembered signing for it and that she did not sign for it. In the

alternative, the State contended that, even if the signature were

Schullerman’s, White was aware that Schullerman signed White’s

name based on evidence indicating that Schullerman called White

just two minutes before he would have retrieved the Tylenol 3

prescription from the pharmacy.

At the motion-for-new-trial hearing, White’s counsel procured

a forensic document-examination expert, who testified that the

signature provided to retrieve the Tylenol 3 prescription was

“inconsistent” with White’s other handwriting samples. However,

16 At trial, Sierra denied the signature was White’s. However, when cross-examined by the State, she acknowledged that she previously told Detective Payne that the signature was White’s. 63 the expert could not rule out the possibility that it was White’s

signature.

Pretermitting whether trial counsel performed deficiently by

failing to present the testimony of a handwriting expert at trial,

White “has not shown that there is a reasonable probability that the

expert’s testimony would have made a difference in h[er] trial.”

Parker v. State, 305 Ga. 136, 141 (823 SE2d 313) (2019). Even if

testimony from the motion-for-new-trial expert had been offered at

trial and the jury had credited it, that testimony at best established

inconsistency in the signatures; it did not establish that the

signature offered to retrieve the Tylenol 3 prescription could not be

White’s. Indeed, the motion-for-new-trial expert could not rule out

the possibility that the signature was, in fact, White’s. Moreover, the

jury heard testimony that Sierra had previously identified the

November 3, 2014 signature to be White’s and would be left to

grapple with the same expert’s testimony that he could not rule out

the possibility that the signature was White’s. And in any event,

White has not shown that the expert’s testimony would have

64 undercut the State’s alternative theory, backed by evidence, that

White was engaged in a scheme with Schullerman to sign for and to

retrieve the Tylenol 3 prescription under the false pretense of a UTI.

For these reasons, White “has not shown a reasonable probability

that the result of [her] trial would have been different had the expert

witness testified at trial, [and she] has failed to establish ineffective

assistance.” Graves v. State, 306 Ga. 485, 488-489 (831 SE2d 747)

(2019) (explaining that the appellant failed to establish “a

reasonable probability, that, but for his lawyer’s unprofessional

errors, the result of the proceeding would have been different” where

a purported expert’s testimony at the motion-for-new-trial hearing

failed to “rebut[ ] the substantial evidence of [the appellant’s] guilt”)

(citations and punctuation omitted). See also Parker, 305 Ga. at 141

(holding that the appellant failed to show the requisite prejudice to

establish an ineffective assistance of counsel claim where an expert’s

testimony at the motion-for-new-trial hearing contradicted the

State’s claim but where the appellant was unable to establish a

reasonable probability that the expert’s testimony would have made

65 a difference at trial).

7. In her final enumeration of error, White claims that the

State committed a Brady violation and that this Court should vacate

White’s convictions and grant a new trial as a result. See Brady, 373

U.S. 83. For the reasons explained below, White’s claim fails.

At trial, Detective Payne testified that Schullerman stated in

an interview that he and White each shot approximately 50 rounds

of ammunition at the shooting range on the night Tyrael died. Based

on that statement, Schullerman and White were indicted for making

a false statement (Count 4) to which Schullerman pled guilty before

White’s trial. Count 4 stated in part:

[O]n or about the 10th day of November, 2014, [Schullerman and White] did knowingly and willfully make a false statement to Detective Adam Payne . . . to wit: during an interview arising out of the investigation into the death of Tyrael McFall, Michael Schullerman did falsely state that he had fired a handgun at Governor’s Gun Club on the evening of November 8, 2014, when asked about his actions that evening.

As support for Count 4, the State presented evidence from the

shooting range’s owner showing that, although White and

66 Schullerman purchased ammunition and targets the evening that

Tyrael died, there was no record that they ever fired guns that

evening.

At White’s motion-for-new-trial hearing, Schullerman’s trial

counsel testified that sometime after Schullerman’s guilty plea but

before White’s trial began, the State conducted an interview with

Schullerman that Schullerman’s lawyer also attended.

Schullerman’s lawyer testified that Schullerman maintained that

he and White shot guns at the shooting range on the night Tyrael

died, despite having pled guilty to Count 4. Schullerman’s trial

counsel further testified that she recalled having a conversation

with White’s trial counsel after White’s trial concluded where

Schullerman’s trial counsel explained that “what [Schullerman] had

said [in this interview] was different than what he pleaded guilty to”

in Count 4. The State did not disclose Schullerman’s interview

statements to White before or during trial.

When asked whether this information would have affected his

decision to call Schullerman as a witness at trial, White’s trial

67 counsel stated, “[h]ad I been provided information of what he had

given in that interview [with the State], that could have changed my

opinion.” White’s trial counsel also testified that “[h]ad I known

[what Schullerman said in the interview] during trial, I might have

[called Schullerman as a witness] if for no other reason than to bring

out the fact that he told the State something that they intentionally

brought evidence to the contrary? I don’t know if I would have done

that or not. I would have been much more tempted to do that. But I

— I didn’t do it.”

To establish a Brady violation, White must show that

(1) the State, including any part of the prosecution team, possessed evidence favorable to the defendant; (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) a reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed to the defense.

Anthony v. State, 302 Ga. 546, 552 (807 SE2d 891) (2017) (citation

and punctuation omitted). “On appeal, we review a trial court’s

factual findings regarding a Brady claim for clear error but review

68 de novo the court’s application of the law to the facts.” Downer v.

State, 314 Ga. 617, 633 (878 SE2d 537) (2022). Pretermitting

whether the first three requirements are met here, White has failed

to establish the fourth: that “a reasonable probability exists that the

outcome of the trial would have been different . . . had the evidence

been disclosed.” Id. (citation and punctuation omitted).

White argues that the State’s failure to inform White of

Schullerman’s statement constitutes a Brady violation because the

statement was “potentially exculpatory” and the State’s failure to

disclose it rendered White’s trial “fundamentally unfair.” But “‘[t]he

mere possibility that an item of undisclosed information might have

helped the defense’” does not satisfy the fourth Brady factor. Upton

v. Parks, 284 Ga. 254, 256 (664 SE2d 196) (2008) (quoting United

States v. Agurs, 427 U.S. 97, 109-110 (96 SCt 2392, 49 LE2d 342)

(1976)). Rather, White must show “[a] ‘reasonable probability’ of a

different result[, which] is one in which the suppressed evidence

undermines confidence in the outcome of the trial.” Turner v. United

States, 582 U.S. 313, 324 (137 SCt 1885, 198 LE2d 443) (2017)

69 (citation and punctuation omitted). Here, Schullerman’s alleged

statement would not have contradicted the evidence presented at

trial that Schullerman told Detective Payne, on the night Tyrael

died, that he and White fired handguns at the shooting range. The

alleged statement also would not undermine testimony from the

shooting range’s owner that the shooting range had no record of

Schullerman and White entering a firing lane on the night Tyrael

died. And it would not have undermined evidence that a fatal

codeine dose was administered before White and Schullerman left

their house to go to the shooting range. At most, Schullerman’s

alleged statement repeated evidence the jury already heard from

Detective Payne: that Schullerman said he and White fired

handguns at the shooting range on the night Tyrael died. See Burney

v. State, 309 Ga. 273, 284 (845 SE2d 625) (2020) (rejecting Brady

claim on the prejudice prong where the defendant “offer[ed] no

evidence that anything contained in the [alleged Brady material]

might have differed from the testimony about [that material] or

[other evidence] that was presented at trial”); Mitchell, 307 Ga. at

70 862-863 (explaining, on Brady’s prejudice prong, that the alleged

Brady material would have been “unlikely to change the outcome of

[the defendant’s] trial because the jury had already heard” the

alleged Brady material); Lewis v. State, 304 Ga. 813, 817 (822 SE2d

239) (2018) (rejecting the defendant’s Brady claim on the prejudice

prong where “nothing in the [alleged Brady material] call[ed] into

question the testimony” of other witnesses). Because White has

failed to establish a “reasonable probability” that Schullerman’s

statement would have “undermine[d] confidence in the outcome of

the trial,” we conclude that the trial court did not err in denying

White’s motion for new trial on this basis. Turner, 582 U.S. at 324

(citation and punctuation omitted); see also State v. Thomas, 311

Ga. 407, 417 (858 SE2d 52) (2021) (“A reasonable probability of a

different result is . . . shown when the government’s evidentiary

suppression undermines confidence in the outcome of the trial.”)

(citation and punctuation omitted).17

17 In our analysis of White’s claims, we have assumed one trial counsel

deficiency in failing to call a handwriting expert to testify at trial and one trial

71 Judgment affirmed. All the Justices concur, except McMillian and LaGrua, JJ., who concur specially in Division 4 (a) and (b), and Colvin, J., who concurs in judgment only in Division 4 (b) (ii).

PETERSON, Presiding Justice, concurring.

I join the majority opinion in full. I write separately to respond

briefly to Justice McMillian’s special concurrence. I generally agree

with her assessment of Georgia’s RICO statute. But I agree with the

majority’s approach in not relying on that statutory law; over-

aggressive use of the RICO statute could pose potential

constitutional problems in a case like this one.

Georgia evidence law contains several provisions that, among

other things, limit the admission of other crimes in criminal

court error in denying White’s motion to sever Count 15, and pretermitted whether the State committed a Brady violation by failing to disclose Schullerman’s post-plea statement. White has not argued that we should apply a cumulative-error review. Even assuming that the assumed evidentiary error, the assumed deficiency of trial counsel, and the pretermitted Brady violation are the sorts of errors that could be assessed cumulatively, we conclude that any such cumulative error did not likely affect the outcome of the trial. See Haufler v. State, 315 Ga. 712, 722 n.14 (884 SE2d 310) (2023) (conducting a cumulative-error review even though the appellant did not invite the Court to do so and stating that “even assuming that these presumed errors should be considered cumulatively, we conclude that [the appellant] has failed to establish that the combined prejudicial effect of these errors requires a new trial”) (citation and punctuation omitted). 72 prosecutions. One reason for this is that when a jury is informed

that the criminal defendant in front of them did other bad things,

jurors (like all human beings) are naturally more inclined to think

the defendant did the separate bad thing at issue in the prosecution.

We often call this inference “propensity,” and label the State’s effort

to introduce evidence for propensity “improper” and

“impermissible.” See Morrell v. State, 313 Ga. 247, 258 (2) (a) (869

SE2d 447) (2022). And the fact that propensity inferences are

natural only increases the risk that they undermine an accused’s

constitutional right to be presumed innocent until proven guilty. See

Michelson v. United States, 335 U.S. 469, 475-476 (69 SCt 213, 93

LE 168) (1948) (“[Evidence of the defendant’s bad character to

establish a probability of his guilt] is not rejected because character

is irrelevant; on the contrary, it is said to weigh too much with the

jury and to so overpersuade them as to prejudge one with a bad

general record and deny him a fair opportunity to defend against a

particular charge.” (footnote omitted)); see also Old Chief v. United

States, 519 U.S. 172, 182 (117 SCt 644, 136 LE2d 574) (1997) (“There

73 is . . . no question that propensity would be an improper basis for

conviction[.]” (punctuation omitted)).

Georgia’s RICO statute is very broad; it allows the State to

bring in evidence of all sorts of other crimes during a RICO

prosecution. That’s of necessity; the statute was designed to combat

“the increasing sophistication of various criminal elements,” OCGA

§ 16-14-2 (a), and the kind of sophisticated conspiracies it was

designed to reach are not susceptible to easy categorization. But the

State seems increasingly to use that breadth in cases that do not

resemble paradigmatic RICO conspiracies; for example, this case

involves “racketeering activity” between a girlfriend and boyfriend

who bear no resemblance whatsoever to sophisticated criminal

enterprises. And the more aggressively the State uses RICO’s

breadth, the more concern arises about conflict between the RICO

statute and the accused’s constitutional right to a fair trial. The

majority’s approach wisely avoids having to grapple with such a

challenging and consequential question.

74 I am authorized to state that Justice Warren joins in this

concurrence.

MCMILLIAN, Justice, concurring specially in part.

In Division 4, the Court engages in an extensive analysis as to

whether the trial court should have severed what the Court defines

as the “murder counts” from the “financial counts,” ultimately

concluding that the trial court did not abuse its discretion in

refusing to sever because evidence of the “financial counts” was

relevant and probative to the State’s theory that those crimes served

as a motive for the murder and that evidence of the “financial

counts” was not unduly prejudicial. In conducting this analysis, the

Court inexplicably does not recognize that the RICO count, which

the Court considers a “financial count,” incorporates by reference the

malice murder count as well as some of the other “murder counts”

as overt acts committed in furtherance of the RICO conspiracy.

Because the crimes, as alleged, are intertwined, I conclude that the

trial court did not abuse its discretion in refusing to sever and see

75 no need to conduct the analysis engaged in by the Court.

Time and again, we have stated that where offenses are joined

in a single indictment and the “joinder is based upon . . . a series of

acts connected together or constituting parts of a single scheme or

plan, severance lies within the sound discretion of the trial judge

since the facts in each case are likely to be unique.” Price v. State,

316 Ga. 400, 404 (2) (888 SE2d 469) (2023) (emphasis supplied;

citation and punctuation omitted). See Rodriguez v. State, 309 Ga.

542, 547 (2) (847 SE2d 303) (2020); Carson v. State, 308 Ga. 761,

764-65 (2) (a) (843 SE2d 421) (2020); Simmons v. State, 282 Ga. 183,

185 (4) (646 SE2d 55) (2007).

Here, White moved to sever Counts 1 (malice murder), 2 (felony

murder), 3 (aggravated battery), 4 (making a false statement that

Schullerman had fired a handgun at the gun club on the evening of

the murder) and 6 (making a false statement by denying that White

had received a prescription of codeine) from the remaining counts.

Count 16 alleged a RICO scheme which was summarized as follows

in the indictment:

76 In order to support their lifestyle, their drug habit, and to obtain a life free of the care of a disabled child, Erica Claudette White (“White”), along with her boyfriend, co-defendant Michael Robert Schullerman (“Schullerman”), conspired and endeavored in a scheme to obtain money and property through the overt acts below and by subsequently poisoning Tyrael McFall (“Tyrael”) to death through codeine toxicity.

The RICO count then alleged 37 overt acts committed in furtherance

of the conspiracy, including malice murder as alleged in Count 1,

making a false statement as alleged in Count 4, and making a false

statement as alleged in Count 6. The allegations from those counts

were explicitly incorporated by reference into the RICO count. Thus,

it is clear that some of the counts that White sought to be severed,

including the malice murder count, are alleged to be part of a larger

RICO conspiracy.

In such a case, we assess whether “in view of the number of

offenses charged and the complexity of the evidence to be offered,

the trier of fact will be able to distinguish the evidence and apply

the law intelligently as to each offense.” Price, 316 Ga. at 404 (2)

(citation and punctuation omitted). See Rodriguez, 309 Ga. at 547

77 (2); Carson, 308 Ga. at 765 (2) (a). The trier of fact was able to do

that here, and White has not pointed to any evidence showing that

the jury was misled or confused.

Thus, I conclude that the trial court acted well within its sound

discretion in refusing to sever and do not find it necessary to parse

whether the “financial counts” also supported White’s motive for the

murder.18 See Rodriguez, 309 Ga. at 542 n.1, 547-48 (2) (finding no

abuse of discretion in trial court’s denial of motion to sever

defendant’s drug trafficking and gang activity counts from counts of

murder, because the drug charges were “inextricably bound” to the

murder charges, there was no evidence that the combined trial of

the charges “confused or misled the jury,” and the verdict itself,

including acquittal on various counts, showed that the jury “fully

understood the law and evidence” (citations and punctuation

18 The Court also expends considerable effort in distinguishing Harris v.

State, 314 Ga. 238 (875 SE2d 659) (2022). In my view, Harris is distinguishable because the State did not allege that Harris engaged in a scheme that included murdering his son and committing sexual acts with other women. See id. at 238-39, 258 (1) (m), 261-83 (3)-(4). The other acts that were introduced in that trial were only used to support motive, intent, and the absence of mistake or accident. See id. 78 omitted)); Carson, 308 Ga. at 765-66 (2) (a) (finding no abuse of

discretion in trial court’s refusal to sever charges stemming from

course of continuing conduct where no evidence showed that the

combined trial of the charges confused or misled the jury and where

verdict showed that the jury fully understood the law and evidence);

Overton v. State, 295 Ga. App. 223, 223-24, 234-35 (3) (671 SE2d

507) (2008) (finding no error in trial court’s denial of motion to sever

RICO counts from crimes alleged to be a part of defendants’ scheme

of illegal activity, and reasoning that the jury could distinguish the

evidence and apply the law intelligently to each offense).19

19 In his concurring opinion, Presiding Justice Peterson explains that

“the more aggressively the State uses RICO’s breadth, the more concern arises about conflict between the RICO statute and the accused’s constitutional right to a fair trial” and that as a result, the “majority’s approach wisely avoids having to grapple with such a challenging and consequential question.” Conc. Op. at 399. However, I note that in Division 5 (c), the Court rejects White’s argument that the inclusion of the RICO count in the indictment “denied her a fair trial and due process as protected by the Fifth, Sixth and Fourteenth Amendment[s] to the [United States] Constitution, Art. I, Sec. I, Para[graphs] I and II of the Georgia Constitution, and OCGA § 24-4-404 as to the character of the accused.” Maj. Op. at 388 (cleaned up). And, White does not argue on appeal that the RICO count should have been severed on the basis that including the count would deprive her of her constitutional right to a fair trial. For these reasons, I do not see how the purported avoidance of such a “challenging and consequential question” justifies the Court’s approach on severance. 79 For these reasons, I concur specially in Division 4 (a) and (b). I

concur fully in the remainder of the opinion.

I am authorized to state that Justice LaGrua joins in this

LAGRUA, Justice, concurring specially in part.

I join Justice McMillian in concurring specially in Division 4

(a) and (b), and I concur fully in the remainder of the majority

opinion. I write separately to caution prosecutors regarding the

overuse of RICO. The intent of Georgia’s RICO statute is to address

“the increasing sophistication of various criminal elements and the

increasing extent to which the state and its citizens are harmed as

a result of the activities of these elements.” OCGA § 16-14-2 (a). See

also Chancey v. State, 256 Ga. 415, 416 (I) (349 SE2d 717) (1986)

(noting that Georgia’s RICO statute is patterned after the federal

RICO statute, which dealt “with the problem of the infiltration of

organized crime into all areas of American life through the money

derived from its illegal endeavors”). That is not this case. White did

80 not murder her two-year-old son as a part of a sophisticated criminal

enterprise. And, just because we hold today that, under these facts,

the law supported trying White together for the RICO and the

murder charges does not mean that it was a smart use of the law. I

remind the State that a prosecutor’s “duty is to seek justice, not

merely to convict. . . .” Carr v. State, 267 Ga. 701, 712 (10) (482 SE2d

314) (1997) (citation and punctuation omitted). Continuing to

overuse the law in this manner by charging RICO where it only

technically applies could result in a rewrite of the law.

Decided June 27, 2024.

Murder. Cobb Superior Court. Before Judge Staley.

Willingham Law Firm, David R. Willingham, for appellant.

Flynn D. Broady, Jr., District Attorney, Linda J. Dunikoski,

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

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

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

Assistant Attorney General, for appellee.