308 Ga. 131 FINAL COPY
S19A1403. WILKINS v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Nathaniel Wilkins was convicted of two counts of
malice murder in connection with the shooting deaths of Forrest Ison
and Alice Stevens. He appeals, arguing that the trial court erred by
admitting into evidence an alleged adoptive admission and by denying
three motions for a mistrial. He also argues that his trial counsel
provided ineffective assistance by not objecting when the trial court
gave an inapplicable jury instruction about accomplice corroboration
and defined aggravated assault three times. We affirm.1
1 The crimes occurred on November 3, 2013. On October 22, 2014, a Chatham County grand jury indicted Appellant and Michael Jones for two counts each of malice murder, felony murder based on aggravated assault, and aggravated assault. Their cases were severed for trial. After an interlocutory appeal was taken by the State, this Court affirmed the trial court’s pretrial order that certain statements made by Jones were not admissible in Appellant’s trial under the co-conspirator hearsay exception. See State v. Wilkins, 302 Ga. 156, 162 (805 SE2d 868) (2017). Appellant was then tried from April 10 to 14, 2018, and the jury found him guilty of all charges. The trial court sentenced Appellant to serve two consecutive sentences of life in prison without the possibility of parole for malice murder, vacated the felony murder counts, and merged the aggravated assault counts into the malice murder convictions. Appellant filed a timely motion for new trial, which he later amended twice with new counsel. 1. Viewed in the light most favorable to the verdicts, the evidence
presented at trial showed the following. Some time before the murders,
Appellant worked with Ison and Stevens at a restaurant in Savannah.
Ison was the executive chef; his girlfriend Stevens was part of the wait
staff; and Appellant was a line cook. Due to Appellant’s poor
performance, Ison fired him. Appellant then found a job at a different
restaurant, where he worked with Michael Jones, who was dating
Appellant’s sister Tracey Burgess.
According to Burgess, on the night of November 3, 2013,
Appellant asked her to drive him and Jones to “take care of
something.” Appellant directed Burgess to drive to an intersection in
Savannah, where Ison and Stevens then drove by in a car. Appellant
told Burgess to follow the car. Burgess, Appellant, and Jones followed
Ison and Stevens to a gas station, waited while Ison pumped gas and
bought some items at the convenience store, and then continued to
After an evidentiary hearing, the trial court denied the motion on April 4, 2019. Appellant then filed a timely notice of appeal, and the case was docketed to the August 2019 term of this Court and submitted for decision on the briefs. At his separate trial, Jones was also found guilty of all charges; we affirmed his convictions in Jones v. State, 305 Ga. 750 (827 SE2d 879) (2019). 2 follow them to their home. Burgess parked in front of the house. As
Appellant and Jones got out, Appellant said that they were going to
rob Ison and Stevens; Appellant had a brown and gray gun, and Jones
had a black gun.2 Appellant and Jones ran behind bushes in front of
the house. When Ison and Stevens got out of their car, Appellant and
Jones approached them. Appellant pointed his gun at Stevens, and she
yelled, “No, Nate!” three or four times. Appellant then shot her, and
she fell to the ground. Jones pointed his gun at Ison, who threw his car
and house keys to Jones. Jones said that was not what he came for,
and he then shot Ison several times.
At that point, Burgess drove away, leaving Appellant and Jones
behind. Several of Ison and Stevens’s neighbors heard multiple
gunshots, and two neighbors heard a woman scream. One of the
neighbors saw two young, black men running from the scene; one wore
a light gray hoodie, and the other wore a black hoodie.3 Burgess pulled
2 Burgess also described the gun that Appellant owned as “Army color,”
with silver, gray, and brown. Appellant’s former co-worker testified at trial that several years earlier, Appellant had shown the co-worker his .45-caliber, camouflage-colored Para Ordnance pistol. 3 Appellant, who is black, was 25 years old at the time of the crimes.
3 into the parking lot of a nearby nursing home, where Appellant and
Jones caught up and got in the car. They drove back to the house where
Burgess and Jones were staying. Jones later showed the man with
whom they were staying a gun with an “army fatigue” green, black,
and brown finish that Jones had stored in the closet. After the
shooting, Burgess heard Appellant telling people that “he got rid of
some germs and bacteria.”
Ison and Stevens were found lying on the steps to the side door
of their house. Ison was already dead by the time EMTs arrived;
Stevens died shortly thereafter. Ison had been shot three or four times;
he had bullet entrance wounds on his chin, his chest, and the back of
his head, and a bullet graze wound on his hand. The wound to his head
was caused by a .22-caliber bullet; the wound on his chin was bigger
than the wounds on his head and chest. Stevens had been shot on the
right side of her head and on her chin with a larger caliber bullet,
similar to the bullet that caused Ison’s chin wound. Three .45-caliber
cartridge cases and two .45-caliber bullets were found near the bodies.
According to Burgess, Jones, who was also 25, was wearing a dark hoodie when he shot Ison. She testified that Appellant was not wearing a hoodie. 4 The bullets were consistent with being fired from a Para Ordnance .45-
caliber pistol.
Joris Cooper, who was Appellant and Jones’s restaurant co-
worker, testified to the following. Shortly after the murders, Jones
showed Cooper a gun. The next night, Cooper was standing outside
the restaurant with Jones when Appellant drove up. Jones walked to
the back of the car and called Cooper over. Jones opened the trunk,
showed Cooper a t-shirt with blood on it, and said: “This [is] the t-shirt
we used to wipe the blood and our prints . . . off the gun.” Appellant
was standing by the door of the car, within earshot. While Jones was
talking about the shirt, Appellant looked at Jones, turned and gave
Cooper a “quick look,” and then turned back to Jones. Some time after
that incident, Cooper was walking outside when Appellant drove up to
him. Appellant said that another co-worker had asked if Appellant
committed the murders; Appellant then said, “he better keep his
mouth closed or his motherf**king ass going to come up missing too.”
Cooper gave Appellant a look to indicate, “all right, man,” and
Appellant drove away.
5 Neither Appellant nor Jones testified at Appellant’s trial.
Appellant’s main defense theory was that Burgess and Cooper, the
State’s key witnesses, were not reliable. Burgess had changed her
story about the night of the murders several times, and she had been
indicted separately on the same charges faced by Appellant in
connection with the murders, plus two additional counts. In exchange
for her truthful testimony, the State agreed to let her plead guilty to
just one count of attempted armed robbery. Cooper testified that he
was hoping to receive reward money for providing information about
the murders.
Appellant does not challenge the legal sufficiency of the evidence
supporting his convictions. Nevertheless, in accordance with this
Court’s practice in murder cases, we have reviewed the record and
conclude that, when viewed in the light most favorable to the verdicts,
the evidence presented at trial and summarized above was sufficient
to authorize a rational jury to find Appellant guilty beyond a
reasonable doubt of the two murders of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
6 (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009)
(“‘It was for the jury to determine the credibility of the witnesses and
to resolve any conflicts or inconsistencies in the evidence.’” (citation
omitted)).
2. As discussed above, Cooper testified that Jones showed him a
t-shirt in the trunk of the car Appellant was driving and said: “This
[is] the t-shirt we used to wipe the blood and our prints . . . off the gun.”
The State offered that testimony as an adoptive admission by
Appellant. At trial, before opening statements and outside the
presence of the jury, Cooper was questioned about his proposed
testimony. Based on his answers (which were substantially similar to
the testimony recounted in Division 1 above that he then gave before
the jury), the trial court concluded that Jones’s statement was
admissible because it had been adopted by Appellant through
Appellant’s silence. The court found that Appellant was looking at and
within earshot of Jones when Jones made the statement, adding,
“[Appellant] couldn’t have not heard it.” The court also pointed to the
incriminating nature of Jones’s statement and the fact that “the shirt
7 is in the car [Appellant] drives up in.”4
As this Court recently explained, under Georgia’s current
Evidence Code, a defendant’s silence may, in certain circumstances,
communicate that he has adopted another person’s statement as true,
making that statement admissible under OCGA § 24-8-801 (d) (2) (B),
which defines “admissions” not excluded by the hearsay rule when
offered against a party to include “[a] statement of which the party has
manifested an adoption or belief in its truth.” See State v. Orr, 305 Ga.
729, 740 (827 SE2d 892) (2019).5 Looking to Eleventh Circuit case law
for guidance, Orr further explained:
For evidence to qualify as a criminal defendant’s adoptive admission under Rule 801 (d) (2) (B), the trial court must find that two criteria were met: first, that “‘the statement was such that, under the circumstances, an innocent defendant would normally be induced to respond,’” and second, that “‘there are sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement.’” United
4 In deciding the pretrial appeal in this case, we noted that the trial court
had reserved ruling on this adoptive admission issue, so that issue was not then before us. See Wilkins, 302 Ga. at 157 n.4. 5 As discussed at length in Orr, under Georgia’s old Evidence Code, this
Court had created a blanket prohibition on the admission of evidence of a criminal defendant’s “‘silence or failure to come forward,’” but that categorical exclusionary rule “was abrogated by the new Evidence Code.” Orr, 305 Ga. at 739 (citation omitted).
8 States v. Jenkins, 779 F2d 606, 612 (11th Cir. 1986) (citation omitted).
Orr, 305 Ga. at 740. See also Westbrook v. State, __ Ga. __ (__ SE2d __)
(2020).6 Before admitting a statement as an adoptive admission, the
trial court must determine, as a preliminary question, whether these
two criteria have been met. See United States v. Carter, 760 F2d 1568,
1580 (11th Cir. 1985). The jury is then responsible for making the
ultimate determination of whether the defendant adopted the
statement as true. See Jenkins, 779 F2d at 613 n.4.7 The
circumstances to be considered include any “physical or psychological
impediments to the party’s responding to the statement (for example,
6 OCGA § 24-8-801 “is materially identical to Federal Rule of Evidence 801,
so we look for guidance to federal case law applying the federal rule.” Orr, 305 Ga. at 740. See also id. at 736 (“Where rules in the new Evidence Code are materially identical to Federal Rules of Evidence, we look to federal appellate law, and in particular the decisions of the United States Supreme Court and the Eleventh Circuit, to interpret them, instead of following our own precedent issued under the old Evidence Code.”). 7 The jury may be instructed on this issue. See Carter, 760 F2d at 1580 n.5
(quoting the instruction that was given to the jury in that case). Appellant did not request such an instruction, however, and he has not identified any authority requiring such an instruction to be given without a request. See Jenkins, 779 F2d at 613 n.4 (noting that the defendant did not request a jury instruction on adoptive admissions and declining to decide whether one was required in those circumstances). See also United States v. Joshi, 896 F2d 1303, 1313 & n.12 (11th Cir. 1990) (holding that the failure to give such an unrequested instruction was not plain error). 9 circumstances showing that a party feared to speak would negate any
inference that the party agreed or adopted the statement).” Paul S.
Milich, Georgia Rules of Evidence § 18:4, at 709 (2019-2020 ed.). See
also United States v. Hale, 422 U.S. 171, 176-177 (95 SCt 2133, 45
LE2d 99) (1975) (explaining why the circumstances of arrest and
custodial interrogation may undermine a claim that a suspect’s silence
was intended as an admission).
Appellant argues that he could not be expected to respond to
Jones’s statement because it was ambiguous and he did not know what
Jones may have told Cooper in any conversation leading up to the
statement. However, even if Appellant did not have the full context of
Jones and Cooper’s prior conversation, the trial court could reasonably
determine that a statement referring to a bloody shirt in the trunk of
the car that Appellant drove up in and was standing next to as the
shirt “we” used to wipe blood and fingerprints off a gun is the kind of
statement that would normally prompt an innocent person to clarify
that he was not part of the “we.”
Likewise, the trial court’s conclusion that Appellant heard,
10 understood, and acquiesced in Jones’s statement is supported by
Cooper’s description of Appellant’s position standing by the car door
within earshot, as well as the fact that Appellant looked at Jones,
briefly at Cooper, and then back at Jones while Jones was speaking.
And there is no indication that any particular circumstances impeded
Appellant from speaking. Thus, the trial court did not abuse its
discretion in determining that Jones’s statement was admissible
under OCGA § 24-8-801 (d) (2) (B). See, e.g., Jenkins, 779 F2d at 612-
613 (holding that one conspirator’s statement to a person, made in a
bedroom with the defendant present, about the need to finish paying
for the cocaine received in Miami was an adoptive admission by the
defendant, who remained silent); Carter, 760 F2d at 1579 (holding that
one conspirator’s statement to a person, made in the front seat of a
car, describing the conspiracy’s smuggling activities was an adoptive
admission by the other two conspirators, who remained silent in the
back seat).8
8 Citing Orr, Appellant also argues that his silence in response to Jones’s
statement had little probative value and was unfairly prejudicial and so should have been excluded under OCGA § 24-4-403. See Orr, 305 Ga. at 742 (“‘[I]n most
11 3. Appellant next contends that the trial court abused its
discretion by denying three mistrial motions based on the admission
of alleged hearsay. “‘Whether to grant a motion for mistrial is within
the trial court’s sound discretion, and the trial court’s exercise of that
discretion will not be disturbed on appeal unless a mistrial is essential
to preserve the defendant’s right to a fair trial.’” Childs v. State, 287
Ga. 488, 492 (696 SE2d 670) (2010) (citation omitted). As explained
below, in this case, the trial court acted within its discretion in denying
each motion.9
(a) The prosecutor began questioning Cooper about the gun that
Jones showed him in this way: “At first, tell me what happened, and
circumstances silence is so ambiguous that it is of little probative force.’” (quoting Hale, 422 U.S. at 176)). Pretermitting whether Appellant properly raised this argument in the trial court, it fails. The trial court did not abuse its discretion in ruling that under these circumstances (which were very different than the ones in Hale), the jury could find that Appellant’s silence was not ambiguous but rather indicated his adoption of Jones’s incriminating statement about the crimes. Such an adoptive admission was highly probative and not unfairly prejudicial. See Anglin v. State, 302 Ga. 333, 337 (806 SE2d 573) (2017). 9 Because we conclude that the trial court did not abuse its discretion when
it refused to grant Appellant’s mistrial motions, we need not address the State’s argument that Appellant failed to preserve his claims by not renewing his motions in a timely manner after the court gave curative instructions, nor do we address Appellant’s argument that his counsel was ineffective for failing to renew his motions. See Coleman v. State, 301 Ga. 720, 723 n.4 (804 SE2d 24) (2017). 12 you can show me, but don’t say what anybody might have said. With
those parameters, tell [the jurors] what happened.” Cooper answered,
“I guess . . . a guy walked up on me and showed me the murder
weapon.” He then clarified that the “guy” was Jones. Appellant
objected to Cooper’s use of the term “murder weapon” and moved for a
mistrial, arguing that the term was based on hearsay from Jones. The
trial court denied the motion for mistrial, but told the jury “to
disregard the statement of this witness regarding the weapon being a
murder weapon.” The court also asked the jurors if the instruction was
clear and if they could follow it; they answered yes to both questions.
Cooper’s use of the term “murder weapon” may have been
inadmissible because it apparently was based on hearsay — what
Jones told him about the weapon — and the State did not identify any
applicable hearsay exception. See Kirby v. State, 304 Ga. 472, 478 (819
SE2d 468) (2018) (“[A] witness cannot use inadmissible hearsay to
demonstrate personal knowledge of a matter.”). However, it was a
passing reference that was contrary to the directions given by the
prosecutor; the statement did not link the weapon to Appellant; the
13 jury was promptly instructed to disregard the comment; and the jurors
affirmatively indicated to the court that they would follow the
instruction. Under these circumstances, the trial court acted within
its discretion in denying the motion for mistrial. See, e.g., Davis v.
State, 308 Ga. __ (__ SE2d __) (2020); Childs, 287 Ga. at 492-493.
(b) While questioning Cooper about the adoptive admission
discussed in Division 2 above, the prosecutor asked, “You go over
there. You get summoned over there by [Jones], and tell me how this
t-shirt comes into play. Tell [the jurors]. It’s important.” Cooper
responded, “He was showing me the shirt — he had done told me
before, but he was showing me the shirt that he said they used to wipe
the gun or the — .” Appellant objected and moved for a mistrial on the
ground that Cooper was improperly corroborating Appellant’s
adoptive admission with testimony about what Jones said while
Appellant was not present. The trial court denied the mistrial motion,
but told the jury “to disregard the last statement made by this
witness.” The court asked if the jurors could do that; they said yes.
Cooper’s statement was ambiguous: it was not clear to what
14 Cooper was referring that Jones had told him before. To the extent the
statement meant that Jones had told Cooper in an earlier
conversation, during which Appellant was not present, that they used
the shirt to wipe the gun, the statement may have been inadmissible
hearsay. However, Cooper’s comment was brief, ambiguous, and not
directly responsive to the prosecutor’s question. And again the trial
court gave a curative instruction and ensured that the jury would
follow it. Thus, the court acted within its discretion in denying the
mistrial motion. See Davis, 308 Ga. at 754; Childs, 287 Ga. at 493.
(c) Finally, when the prosecutor was questioning the lead
detective about his investigation, the following exchange occurred:
PROSECUTOR: Okay. [The case] had been unsolved and dead-ended for a while; is that accurate? DETECTIVE: Yes. PROSECUTOR: You were working on it, but you didn’t have any arrests; is that fair to say? DETECTIVE: No. We continued to work on it. PROSECUTOR: Sure. What did you do next? DETECTIVE: In March of that year we got information of some possible suspects.
Appellant objected and moved for a mistrial on the ground that the
detective’s final statement was hearsay and violated the
15 Confrontation Clause. The trial court denied the motion, but
instructed the jury to disregard the detective’s last statement. The
court asked if all of the jurors could do that; they said yes.
The import of the disputed statement is unclear, because the
detective did not identify the “information,” its source, or any of the
“possible suspects.” But even assuming that the statement amounted
to inadmissible hearsay, it did not tell the jury anything the jury did
not already know. Given that Appellant was on trial, the jury knew
that he became a suspect at some point. See Davis, 308 Ga. at 750
(noting that the lead investigator’s testimony that she focused on the
defendant as a potential suspect “was an obvious point given that she
ultimately arrested him”). The testimony also did not violate
Appellant’s constitutional right to confront his accusers. See id. at
749, n.3 (rejecting the defendant’s argument that the investigator’s
testimony that she focused on him after interviewing more than 30
people violated his right to confront his accusers because the
investigator did not testify to the substance of what any of the
witnesses told her). Additionally, the jury was instructed to disregard
16 the detective’s statement and expressly agreed to do so. Under these
circumstances, the trial court again acted within its discretion in
denying the mistrial motion. See id. at 754.
4. During the final jury charge, the trial court gave a set of
instructions on accomplice testimony, see generally OCGA § 24-14-8,
which included charges that the testimony of an accomplice alone is
insufficient to warrant a conviction, that such testimony must be
supported by other evidence that would independently lead to an
inference of guilty, and that who is an accomplice and what supporting
evidence is sufficient are matters within the jury’s purview to decide.
The court also instructed that “[t]he testimony of one accomplice may
be supported by the testimony of another accomplice.”
Appellant contends that his trial counsel’s failure to object to the
accomplice-corroborating-accomplice instruction constituted
ineffective assistance, because two accomplices did not testify at his
trial. To prevail on this claim, Appellant must show both “that his trial
counsel’s performance was professionally deficient and that, but for
such deficient performance, there is a reasonable probability that the
17 result of the trial would have been different.” Powell v. State, 307 Ga.
96, 103 (834 SE2d 822) (2019). See also Strickland v. Washington, 466
U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “‘In examining an
ineffectiveness claim, a court need not address both components of the
inquiry if the defendant makes an insufficient showing on one.’”
Jackson v. State, 305 Ga. 614, 622 (825 SE2d 188) (2019) (citation
omitted).
It appears that the accomplice-corroborating-accomplice
instruction that the trial court gave was not applicable to this case.
The evidence at trial showed that Appellant may have had two
accomplices — Jones and Burgess.10 But only one of them — Burgess
– testified as a witness at trial.11 Accordingly, if Appellant’s counsel
10 Although Burgess claimed at trial to be an unwitting helper, her testimony about driving Appellant and Jones to the crime scene and then away from it after Appellant said that he and Jones were going to rob the victims, they displayed guns, and they shot at the victims, along with her guilty plea to attempted armed robbery, was sufficient for a jury to find that she was an accomplice. See Doyle v. State, 307 Ga. 609, 613 (837 SE2d 833) (2020) (holding that the jury could have found that a witness was an accomplice when he drove the appellant and another accomplice to the crime scene, saw them holding guns in the car, drove them away from the scene after hearing gunshots, and did not report the shooting to authorities). 11 Neither party argues that there were statements made by Jones but
admitted through other witnesses that constitute “testimony” by Jones. See
18 had objected to the instruction, the trial court should have omitted it
from the series of charges on accomplice testimony. But even assuming
that counsel’s failure to make such an objection was deficient,
Appellant has failed to show resulting prejudice.
Appellant’s argument that the inapplicable instruction was
prejudicial is premised on Crosby v. State, 150 Ga. App. 555 (258 SE2d
264) (1979), where the Court of Appeals held that the trial court
committed reversible error when it instructed the jury on
corroboration by a second accomplice even though only one accomplice
testified. That holding was summarized this way: “The inapplicable
instruction in the instant case authorized the jury to reach a finding
of guilty by a theory not supported by the evidence, and we can not
Foster v. State, 304 Ga. 624, 627 n.5 (820 SE2d 723) (2018) (declining to address “whether the hearsay statements of witnesses at trial who are testifying about the matters allegedly told to them by an accomplice must be corroborated in the same manner as the actual testimony of an accomplice pursuant to OCGA § 24- 14-8”); Lawrence v. State, 342 Ga. App. 396, 403 (802 SE2d 859) (2017) (holding that it was not plain error for the trial court to fail to instruct the jury that accomplice testimony must be corroborated because neither controlling precedent nor the text of OCGA § 24-14-8 clearly establishes that accomplice statements introduced by another witness constitute accomplice “testimony”). If, however, there were statements from Jones, admitted through other witnesses, that could be considered accomplice “testimony,” then the accomplice-corroborating- accomplice instruction was properly given and Appellant’s claim of ineffective assistance of counsel would fail for that reason. 19 say[,] as a matter of law, that the charge was neither confusing nor
misleading.” Id. at 558. The Court of Appeals did not explain, however,
how the jury could find the defendant guilty beyond a reasonable
doubt based on a theory not supported by any evidence.
This Court has never endorsed Crosby’s holding, which runs
contrary to our cases that generally deem harmless a jury instruction
that indicates that a defendant could be found guilty under a theory
for which there was no evidence or even argument (and in this case
the State never argued that there was testimony from a second
accomplice). See, e.g., Wetzel v. State, 298 Ga. 20, 36 n.17 (779 SE2d
263) (2015) (“‘(G)enerally it is not [harmful] error to charge the jury on
a portion of the Code section that may be inapplicable under the facts
in evidence.’” (quoting Chapman v. State, 273 Ga. 865, 868 (548 SE2d
278) (2001)). See also Saffold v. State, 298 Ga. 643, 650-651 (784 SE2d
365) (2016) (“[T]here may have been no evidence to support such a
finding [under a jury instruction regarding parties to a crime], but
again the State never argued that Appellant was a party to the crime
on these grounds, and it is quite unlikely the jury based its verdict on
20 this surplus language.”). We also note that in all of its subsequent
cases where the accomplice-corroborating-accomplice instruction was
determined to have been given without evidentiary support, the Court
of Appeals has distinguished Crosby and held the error to be harmless.
See Jackson v. State, 281 Ga. App. 83, 88 (635 SE2d 372) (2006); Polite
v. State, 273 Ga. App. 235, 241 (614 SE2d 849) (2005); Saxon v. State,
266 Ga. App. 547, 553 (597 SE2d 608) (2004).
Accordingly, to the extent that Crosby can be read as establishing
a rule that erroneously giving the accomplice-corroborating-
accomplice instruction at issue here is always prejudicial, it is
disapproved. And under the circumstances of this case, we see no
prejudice. The jury was told that it could consider the testimony of one
accomplice as corroboration of another accomplice’s testimony, but
because there was no testimony about the murders from a second
accomplice, the jury necessarily had to look for other evidence — such
as Cooper’s testimony — for the necessary corroboration of Burgess’s
testimony. Because there is no reasonable probability that the result
of the trial would have been different had the disputed jury instruction
21 been omitted, Appellant’s ineffective assistance claim fails.
5. Appellant also contends that his trial counsel was ineffective
in failing to object to the trial court’s defining aggravated assault three
times during the final jury charge. Two of those definitions
corresponded to two separate crimes charged in the indictment —
felony murder based on aggravated assault and aggravated assault. It
is not clear why the court defined aggravated assault a third time, but
it is also not clear how this additional repetition harmed Appellant.
All three times, the court gave substantially the same instruction, and
Appellant does not argue that the instruction itself was erroneous.
Generally, “‘[m]ere repetition of a correct and applicable principle
of law is not such error as requires reversal unless it takes color of an
argumentative or opinionative utterance so as to tend to prejudice the
minds of the jury.’” Grier v. State, 273 Ga. 363, 365 (541 SE2d 369)
(2001) (citation omitted). Appellant has not shown how the repetition
of the correct definition of aggravated assault was “argumentative or
opinionative” or prejudiced him in any way. Thus, even assuming that
trial counsel was deficient for not objecting to the repetitive charge,
22 Appellant’s claim of ineffective assistance of counsel fails because he
has failed to show prejudice. See id.
6. Although we have evaluated separately Appellant’s two claims
of ineffective assistance of counsel based on his trial counsel’s failure
to object to jury instructions, we also recognize that “the effect of
prejudice resulting from counsel’s deficient performance is viewed
cumulatively.” Grant v. State, 305 Ga. 170, 178 (824 SE2d 255) (2019).
To that end, we conclude that the cumulative prejudice from the
deficiencies assumed in Divisions 4 and 5 does not create a reasonable
probability that the result of the proceedings would have been
different in the absence of the deficiencies alleged.
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 28, 2020. Murder. Chatham Superior Court. Before Judge Bass. Steven L. Sparger, for appellant. Meg E. Heap, District Attorney, Emily C. Puhala, Assistant
23 District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.