309 Ga. 529 FINAL COPY
S20A0859. YOUNG v. THE STATE.
WARREN, Justice.
Jermaine Young was convicted of malice murder in connection
with the shooting death of Shane Varnadore.1 Young now appeals,
arguing that the trial court erred in denying Young’s motion to
suppress his statements made during police interviews, that the
trial court erred in admitting a Facebook photo into evidence at trial,
1 Varnadore was killed on March 1, 2016. On May 26, 2016, a Gwinnett County grand jury indicted Young and Reginald Lofton for malice murder, felony murder predicated on armed robbery, felony murder predicated on aggravated assault, armed robbery, and aggravated assault. Young and Lofton were tried separately, and this Court recently decided Lofton’s appeal in Lofton v. State, ___ Ga. ___ (___ SE2d ___) (2020). On May 17, 2018, a Gwinnett County jury found Young guilty on all counts, and the trial court sentenced Young to life in prison without the possibility of parole for malice murder; concurrent terms of life in prison without the possibility of parole for each felony murder count; a concurrent term of life in prison for armed robbery; and a 20-year concurrent term for aggravated assault. Young timely filed a motion for new trial, which he amended through new counsel. After a hearing, the trial court denied the motion on November 4, 2019. In its order denying Young’s motion, the trial court also modified Young’s sentence, vacating both felony murder counts by operation of law and merging the aggravated assault count into the malice murder count. Young timely filed a notice of appeal, and the case was docketed in this Court for the term beginning in April 2020 and orally argued on June 16, 2020. and that Young’s trial counsel provided constitutionally ineffective
assistance. For the reasons that follow, we disagree and affirm
Young’s convictions.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. On March 1, 2016,
Varnadore, who was working the closing shift at Papa John’s,
responded to a call to deliver two pizzas, two dessert pizzas, and a
two-liter bottle of Pepsi to “Josh” in Unit 10108 at the Wesley
Herrington Apartment Complex. The phone number used to place
the order — later discovered to be associated with a TracFone — had
called Papa John’s three times that evening: once to inquire about
pizza specials, once to place an order, and once to check on the status
of the delivery. While Varnadore was delivering the order at
approximately 11:30 p.m., he was shot in the chest at the apartment
complex. Police responded to the scene and discovered Varnadore
lying in a parking space in front of the apartment complex’s 10000
building, where Unit 10108 is located. Police also found a spent .40-
caliber shell casing two parking spots away from Varnadore’s body and an empty Papa John’s insulated pizza-delivery bag and a two-
liter bottle of Pepsi on the ground outside of Unit 10108.
After responding to the scene, detectives obtained the phone
number used to call Papa John’s. Through database searches, they
linked Malek Buckley to the TracFone and discovered that Buckley
lived in Unit 9301 of the Wesley Herrington Apartment Complex.
And through Facebook, detectives learned that Buckley was friends
with Young and uncovered Young’s phone number. Phone records
revealed that Varnadore had called the TracFone at 11:27 p.m. and
that the TracFone then called Young’s phone number at 11:34 p.m.
Police obtained a search warrant for Unit 9301, and on March
2, 2016, police executed the search warrant with assistance from
SWAT. All five of the unit’s residents — Reginald Lofton, Buckley
(Lofton’s half-brother), Porsha Porter (Lofton’s older half-sister),
Ciara Harris (Porter’s girlfriend), and Young — were present when
SWAT arrived. They all exited the apartment and were transported
to police headquarters to be interviewed. During the search of Unit
9301, police found the TracFone associated with the number that called Papa John’s; pizza boxes delivered by Varnadore, as
evidenced by the phone number and address on the receipts that
were on the boxes; and what was later identified by a firearms
examiner as the murder weapon hidden inside a box of pancake mix.
At trial, the medical examiner testified that Varnadore died
from a gunshot wound to the torso. Porter testified that on the night
of the incident, Lofton discussed ordering a pizza; later that night
while she was in bed, Porter heard a gunshot. When she entered the
living room shortly after, she saw Young on the couch, “[l]eaning
sideways, like he was like out of breath.” Then, she “stepped
outside” of the apartment and saw Lofton “com[e] up the stairs with
his headphones on” and “walk[ ] in [to the apartment] with the
pizza” before she “locked the door and went back in [her] room and
went back to sleep.”
Harris “came [out of the bedroom] just a little bit after” Porter
and testified that she saw pizza boxes “[s]tacked . . . on top of the
corner of the [kitchen] countertop” and that Lofton was in the
kitchen and Young was on the couch when she walked out. She also testified that she was outside when she saw SWAT arrive at the
apartment complex. After seeing SWAT, she “ran back inside” the
apartment and “told everybody.” Harris testified that the
apartment turned into a “chaotic scene,” with everyone “sh[a]ken
up” and “moving fast” “all over the place.” She saw Young grab a
box of pancake mix and go into a room with it and saw Lofton put
one of the pizza boxes under her bed.
Detective Matthew Kenck, the lead detective on the case,
testified that during Buckley’s police interview, Buckley stated that
on the night of the shooting, “Young had woken him up, and then
[Buckley] said that [Young] and [Lofton] had told him” “that they
had hit a lick on the pizza man.”2 Young’s three video-recorded
interviews with Detective Kenck were then played for the jury. In
the interviews, Young explained that he was visiting from Chicago
and had been living with Porter for months. He stated that he had
tried to return to Chicago on March 1, but missed the bus, so he was
2 Detective Kenck testified that “hitting a lick” is a slang term for robbing
someone and that, “if I remember correctly . . . [Buckley] specifically told me that a lick was, in this case, referring to a robbery.” planning on catching the bus to Chicago on March 2. During the
interviews, Young eventually admitted that Lofton had made a plan
to rob the pizza delivery person. Young also stated during the
interviews that he had agreed to participate in the robbery and
walked to the 10000 building with Lofton to assist him in the
robbery but he claimed that he then abandoned the plan at the last
minute, shortly before Varnadore was shot. Young explained that
he ran back to Unit 9301 after Varnadore arrived at the apartment
complex but before Varnadore was shot.
Young does not contest the legal sufficiency of the evidence
supporting his convictions. Nevertheless, consistent with this
Court’s general 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 was sufficient to
authorize a rational jury to find Young guilty beyond a reasonable
doubt of the crimes for which he was convicted.3 See Jackson v.
3 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the Virginia, 443 U.S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979);
Lofton v. State, ___ Ga. ___, ___ (___ SE2d ___) (2020). See also
OCGA § 16-2-20.
2. Young argues that the trial court erred by denying his
motion to suppress the statements he made during his police
interviews. Specifically, Young argues that his statements should
have been excluded because (a) Young never knowingly waived his
rights under Miranda4 because he was misinformed about his
“immediate right to a free lawyer” and because (b) detectives
continued Young’s interrogation after Young invoked his right to
silence.
After the search warrant was executed on Unit 9301 on March
2, 2016, Young was handcuffed, taken to police headquarters to be
interviewed by Detective Kenck and Detective Shannon Kulnis, and
term of court that begins in December 2020. See Davenport v. State, ___ Ga. ___, ___ (___ SE2d ___) (2020). The Court began assigning cases to the December Term on August 3, 2020.
4 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966). interviewed three times. At the outset of Young’s first interview,
the detectives informed Young that there were no outstanding
warrants for his arrest, but that they were going to “read [him his]
rights.” Young interjected, asking whether he was “charged with
anything,” and the detectives told Young that he was not. The
detectives then advised Young of his rights under Miranda. After
Young indicated that he understood his rights, the following
exchange occurred:
YOUNG: So if I ask for a lawyer, y’all gonna — um — get a lawyer for me? DETECTIVE KENCK: Not today. No, I don’t have access to a lawyer. YOUNG: So that means I would have to wait until y’all found a lawyer — until y’all can come talk to me or some s*** like that? DETECTIVE KENCK: Pretty much. YOUNG: So how long that could take? DETECTIVE KENCK: I mean, we, you know — you’re not being charged with anything, so there — we don’t — you get appointed with a lawyer when you’re charged with something, so if you said you wanted a lawyer, and you wanted to go get one and come back and talk to us, that’s — that’s up to you. ... DETECTIVE KENCK: So are you, uh — obviously, you mentioned a lawyer. You understand all of your rights? What they are? Do you want to talk to me without a lawyer? YOUNG: Just talk, let’s see what you got to say.
In that first interview, Young denied any involvement in the
incident.
Approximately five hours later, Young was interviewed a
second time, and he indicated that he still understood his rights
under Miranda when asked by Detective Kenck.5 In that interview,
Young stated that he had agreed to assist Lofton in robbing the pizza
delivery person but claimed that he then changed his mind and
walked away from the scene right before Varnadore was shot. At
some point during the second interview, when explaining his role in
the crimes, Young paused, looked at one of the detectives, and
stated: “I’m done talking to you. If y’all find this s*** so funny, I’m
done talking.” The detectives explained that they thought it was
“funny” because Lofton had given the detectives the same account of
that evening’s events during his interview, but with an important
contradiction about who shot Varnadore: whereas Young told
5 In the time between Young’s first and second interviews, the detectives
interviewed the other residents of Unit 9301. detectives that Lofton was going to pay for the pizza and Lofton was
the one who shot the pizza delivery person, Lofton told detectives
that he believed Young was going to pay for the pizza and that Young
was the one who pulled the trigger. Detective Kulnis elaborated:
“Dude, you have to understand that when we catch two people
telling us some bulls***, but it’s the same bulls***, it’s kinda funny.”
Soon after, Young asked, “Is you gonna listen to my story, or are you
gonna just tell me what you think you know?” After detectives
stated that they would listen to Young’s version of events, Young
continued to speak with them.
Almost immediately after the detectives exited the room at the
conclusion of the second interview, Young requested to speak to the
detectives again. A third interview ensued, and Sergeant Millsap
replaced Detective Kenck in the interview room. In that interview,
although Young maintained that he did not ultimately participate
in the robbery, he admitted his further involvement in the initial
robbery plan and provided more detail about the scheme to rob the
pizza delivery person. Before trial, the trial court conducted a hearing on Young’s
suppression motion and found that Young’s “Miranda rights were
properly given and that [Young] knowingly, willingly, and
voluntarily waived the rights that he had to speak with the police.”
With regard to Young’s argument that he invoked his right to silence
during the second interview, the trial court found “the entire
statement to be admissible.”
In its order denying Young’s motion for new trial, the trial
court, “[h]aving reviewed the totality of the circumstances,” affirmed
its pretrial ruling regarding “the commentary surrounding [Young’s]
right to counsel” and Young’s “purported invocation of his right to
silence.” The trial court concluded that the detectives “properly
explained [Young’s] right to counsel” and that Young “knowingly
waived his right to counsel, and did so of his own volition.” The trial
court further concluded that Young’s statements about being “‘done
talking’” “did not amount to a[n] ‘unequivocal and unambiguous’
statement that [Young] no longer wished to continue the interview
with detectives.” (a) Young argues that he did not knowingly waive his rights
under Miranda because Detective Kenck misled him about his right
to an attorney by saying that Young was only entitled to an
appointed lawyer once charged with a crime.6 We disagree.
A defendant may waive his rights under Miranda, “provided
the waiver is made voluntarily, knowingly and intelligently.”
Miranda v. Arizona, 384 U.S. 436, 444 (86 SCt 1602, 16 LE2d 694)
(1966). “Only if the totality of the circumstances surrounding the
interrogation reveals both an uncoerced choice and the requisite
level of comprehension may a court properly conclude that
the Miranda rights have been waived.” Williamson v. State, 305 Ga.
889, 893 (827 SE2d 857) (2019) (citation and punctuation omitted).
“A statement by an interrogating agent that contradicts the
Miranda warnings is a circumstance that can indicate a suspect did
6 Young confines his argument to the issue of whether he knowingly and
intelligently waived his Fifth Amendment rights under Miranda and never argues that he actually invoked his Fifth Amendment right to counsel, which would have required him to “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Dozier v. State, 306 Ga. 29, 35 (829 SE2d 131) (2019) (citation and punctuation omitted). not knowingly and intelligently waive his rights.” Id. at 893-894.
“Although we defer to the trial court’s findings of disputed facts, we
review de novo the trial court’s application of the law to the facts.”
Ellis v. State, 299 Ga. 645, 647 (791 SE2d 16) (2016) (citation and
punctuation omitted).
Here, Young argues that Detective Kenck’s statement that
“you get appointed with a lawyer when you’re charged with
something” contradicted Miranda’s warning about the right to
counsel such that Young’s waiver of his rights under Miranda was
not knowingly and intelligently made. But Detective Kenck’s
statement was accurate insofar as an accused may be appointed a
lawyer once he is charged with a crime under case law interpreting
the Sixth Amendment. See Davis v. United States, 512 U.S. 452,
456 (114 SCt 2350, 129 LE2d 362) (1994) (explaining that the “Sixth
Amendment right to counsel attaches only at the initiation of
adversary criminal proceedings”); see also Shaw v. State, 307 Ga.
233, 246 (835 SE2d 279) (2019).
Additionally, because the record shows that Detective Kenck properly advised Young of his Miranda rights and later told Young
that “if [he] wanted a lawyer, and . . . wanted to go get one and come
back and talk to us, that’s—that’s up to you,” we cannot say that
Detective Kenck misled Young about his Fifth Amendment right to
an attorney under Miranda such that Young’s waiver of his rights
under Miranda was not knowing and intelligent.7 Moreover, Young
did not unambiguously invoke his right to counsel, and after
Detective Kenck asked if Young wanted to talk without a lawyer
present, Young replied, “Just talk, let’s see what you got to say.”
Because Detective Kenck advised Young of his rights under
Miranda; because Detective Kenck’s statements did not contradict
Miranda; and given that the record supports the trial court’s
conclusion that under the totality of the circumstances, Young made
his interview statements knowingly and intelligently, we cannot say
7 Contrary to Young’s assertion that he had “the absolute right to a free
lawyer prior to and during questioning,” our case law establishes only that, under Miranda, a “suspect who asks for a lawyer at any time during custodial interrogation may not be subjected to further questioning by law enforcement until an attorney has been made available or until the suspect reinitiates the conversation.” Dozier, 306 Ga. at 35 (citation and punctuation omitted). that the trial court’s decision was erroneous, let alone clearly
erroneous.8 See Williamson, 305 Ga. at 894 (“A trial court’s decision
as to whether a defendant made a knowing and intelligent waiver of
his Miranda rights will not be disturbed on appeal unless clearly
erroneous.”).
(b) Young argues that his statement “I’m done talking to you.
If y’all find this s*** so funny, I’m done talking” was an unequivocal
invocation of his Fifth Amendment right to remain silent, and that
8 That Young was not provided false or misleading information about his
rights under Miranda distinguishes this case from others Young points to in which defendants were misled or provided an incomplete or inaccurate explanation of their Miranda warnings. Compare Hart v. Attorney Gen. for the State of Fla., 323 F3d 884, 894-895 (11th Cir. 2003) (concluding that the defendant’s “waiver was not voluntary, knowing, and intelligent as required by Miranda” where law enforcement “contradicted the Miranda warning that anything [the defendant] said could be used against him in court” by telling the defendant that “honesty wouldn’t hurt him” and the defendant “did not truly understand the nature of his right against self-incrimination or the consequences that would result from waiving it”); Benton v. State, 302 Ga. 570, 575 (807 SE2d 450) (2017) (concluding that the defendant did not “knowingly and intelligently waive[ ] his rights under Miranda” where the record showed that the defendant “did not understand the Miranda warnings as read to him initially” and “the interrogating officer’s subsequent explanation of those warnings was incomplete”); Gray v. State, 347 Ga. App. 235, 238 (817 SE2d 723) (2018) (concluding that the defendant “did not knowingly and intelligently waive his rights under Miranda” where the detective’s response to a question asked by the defendant “directly contradicted the Miranda warnings” by saying the defendant was not “really giving up any rights” and where “the detective then incompletely paraphrased the right to remain silent”). the interrogation should have ceased after his purported invocation.
We disagree.
“An accused may end a custodial interrogation at any time by
invoking his constitutional right to remain silent. To do so, a
defendant must unambiguously and unequivocally express his
desire to invoke that right before officers are required to stop their
questioning.” Dozier v. State, 306 Ga. 29, 33 (829 SE2d 131) (2019)
(citation and punctuation omitted); see also Berghuis v. Thompkins,
560 U.S. 370, 381 (130 SCt 2250, 176 LE2d 1098) (2010). “That
determination depends on whether a defendant articulates a ‘desire
to cut off questioning with sufficient clarity that a reasonable police
officer in the circumstances would understand the statement to be
an assertion of the right to remain silent.’” Dozier, 306 Ga. at 33-34
(citation and punctuation omitted).
Viewed in context, the record here supported the trial court’s
finding that Young’s statement was not an “unequivocal and
unambiguous” invocation of his right to remain silent. Dozier, 306
Ga. at 34. Although the first half of the statement — “I’m done talking to you” — might appear unequivocal in isolation, it was
immediately followed by the conditional statement — “[i]f y’all find
this s*** so funny, I’m done talking” — rendering the whole
statement equivocal. See Barnes v. State, 287 Ga. 423, 425 (696
SE2d 629) (2010) (concluding that a defendant failed to invoke his
right to remain silent because his statement, “if you’re not going to
talk real talk, then we shouldn’t talk,” was “conditional and
ambiguous,” rather than “unequivocal and unambiguous”).
Moreover, video of the interview reveals that, rather than
manifesting a desire to end questioning, Young continued talking as
soon as detectives assured him that they would listen to his account
of events. Because Young’s statement was not so clear as to lead a
reasonable police officer to understand that Young was
“unequivocal[ly] and unambiguous[ly] invo[king] . . . his right to
remain silent,” it “was insufficient to trigger the [detective’s] duty to
cease questioning.” Id. at 425-426.
3. Young argues that the trial court erred in admitting a
Facebook photo of Young with a gun into evidence. During Young’s first interview at police headquarters, Young
indicated that he had no knowledge of any guns in Unit 9301, that
he did not own any guns, and that he would know if there were guns
in the apartment. Detective Kenck then told Young that he had
photos of Young “with guns.” When asked by Young, Detective
Kenck confirmed that he retrieved the photos from Facebook.
Approximately two minutes later, Detective Kenck informed Young
that police had found a gun in Unit 9301. Young then stated that
he had taken “pictures with a lot of people holding guns.” During
his second interview, Young told the detectives that his fingerprints
might be on the gun recovered from Unit 9301, which was later
determined to be the murder weapon, because he had taken a photo
with it.
Prior to trial, the State requested that the trial court rule on
the admissibility of a Facebook photo that Detective Kenck showed
Young during his interview. The State conceded that it did not know
whether the gun in the photo was the murder weapon or even a real
gun, but argued that the photo was relevant because Young changed his story about not knowing about the existence of guns in Unit 9301
after the detective showed that particular photo to Young. Young
argued that the photo was irrelevant and objected to its admission
into evidence. The trial court found that the photo was admissible,
and specifically that it was relevant “because it was shown to
[Young] during the questioning.”
At trial, Detective Kulnis identified the Facebook photo and
indicated that it had been shown to Young during his interviews.
Detective Kulnis also testified that she did not know whether the
gun in the photo was the murder weapon or even a real gun. Young’s
trial counsel renewed his objection to the admission of the photo,
and the trial court admitted it into evidence over objection.
On appeal, Young argues that the photo was not relevant
under OCGA § 24-4-401 (“Rule 401”); had “zero probative value”
under OCGA § 24-4-403 (“Rule 403”); and “amount[ed] to character
evidence” under OCGA § 24-4-404 (b) (“Rule 404 (b)”) because the photo made “him look like a ‘gun-toting lawbreaker.’”9 The State
responds that under Rule 401, the photo at issue was relevant to
Young’s credibility, “was not devoid of” probative value, and “the
[photo’s] scant probative value was not substantially outweighed by
a danger of unfair prejudice” under Rule 403. (Emphasis in
original.)
Pretermitting whether the trial court’s admission of the
Facebook photo was error, we conclude that, under the
circumstances of this case, any error was harmless.10 “The test for
9 Young argues in his supplemental brief that the photo is character
evidence “categorically prohibited by [OCGA § 24-4-404 (a)]” that cannot constitute harmless error because where there is “zero probative value to a photograph, the balancing test required under Rule 403 requires a finding of harm.” (Emphasis in original.) However, the Evidence Code provides for harmless error review of evidentiary errors, and we have often concluded that evidentiary error resulting from improperly admitted evidence at trial can nevertheless be harmless and decline to depart from that precedent today. See OCGA § 24-1-103 (a) (explaining that “[e]rror shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected”); Hood v. State, 299 Ga. 95, 101-105 (786 SE2d 648) (2016).
10 Although we pretermit trial court error regarding the admission of the
photo at issue, some of us have expressed concern about the probative value of such a photo where, as here, the State offered a photo of a defendant holding a gun when the State did not indict the defendant on a firearms charge, admitted that it did not know whether the gun was the murder weapon and thus related to the case, and admitted that it did not even know whether the gun in the photo is a real gun. determining nonconstitutional harmless error is whether it is highly
probable that the error did not contribute to the verdict.” Taylor v.
State, 306 Ga. 277, 283 (830 SE2d 90) (2019) (citation and
punctuation omitted). “When applying harmless error analysis, we
review the evidence de novo and weigh it as a reasonable juror
would, rather than reviewing it in a light most favorable to
upholding the jury’s verdicts of guilty.” Id. Here, “[i]t is highly
probable that the admission of [the Facebook photo] did not
contribute to the verdict.” Anglin v. State, 302 Ga. 333, 341 (806
SE2d 573) (2017). The State presented strong evidence of Young’s
guilt apart from the Facebook photo discussed above. In particular,
it offered Young’s own admissions about his knowledge of, and
participation in, the plan to rob Varnadore. In addition, Young
admitted that his fingerprints may be on the murder weapon
because he took a photo with it; Porter testified that she heard
Lofton discuss ordering pizza and that right after she heard a
gunshot and went into the living room, she saw Lofton come into the
apartment carrying pizza and Young sitting on the couch “like he was out of breath”; Harris testified that after she announced that a
SWAT team had arrived at the apartment complex, she saw Young
with a pancake box where the murder weapon was later found; and
Detective Kenck testified that Buckley told him that Young and
Lofton woke him up while he was sleeping to tell him that they had
“hit a lick on the pizza man.” See id. (concluding that the admission
of security camera footage was harmless where “[t]he State’s case
against [the defendant] was strong”).
Especially in light of Young’s own admissions, the value of the
Facebook photo to the State’s prosecution and Young’s guilt was
marginal. See, e.g., Johnson v. State, 301 Ga. 277, 279-280 (800
SE2d 545) (2017). Detective Kulnis’s admission at trial that she did
not know whether the gun depicted in the Facebook photo was the
murder weapon or even a real gun also diminished the photo’s
prejudicial effect. Moreover, any harmful effect that the Facebook
photo may have had was diminished because it was cumulative of
other properly admitted evidence, which included evidence
pertaining to other pictures of Young with guns. To that end, in the video recording of Young’s police interviews, the jury heard
Detective Kenck state that he had photos of Young “with guns” from
Young’s Facebook page; Young admit that he took pictures of a “lot
of people holding guns”; and Young admit that his fingerprints
might be on the murder weapon because he took a picture with it
shortly before the incident. See Kirby v. State, 304 Ga. 472, 478-479
(819 SE2d 468) (2018) (concluding that the trial court’s evidentiary
error “was harmless” because “the other evidence of [the
defendant’s] guilt was compelling”); Wright v. State, 291 Ga. 869,
872 (734 SE2d 876) (2012) (concluding that no harm resulted from
the improper admission of inadmissible hearsay where the
testimony was “merely cumulative of other properly admitted
evidence at trial”).
Thus, under the circumstances of this case, it is highly probable
that the jury’s verdict was not affected by the admission of the
Facebook photo. See Kirby, 304 Ga. at 478-479.
4. Young argues that his trial counsel was constitutionally
ineffective for failing to move to suppress the search warrant for Unit 9301. Specifically, Young contends that he had standing as an
overnight guest of at least two months; that trial counsel was
deficient for concluding that Young did not have standing under the
Fourth Amendment to the United States Constitution to challenge
the search warrant; and that if trial counsel had filed a motion to
suppress, he would have been successful because the search warrant
application lacked probable cause. But because Young has failed to
show that the motion to suppress would have been successful had
trial counsel filed it, his claim of ineffective assistance fails.
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. See Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (689 SE2d 280) (2010). 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.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466
U.S. at 687-688. This requires a defendant to overcome the “strong
presumption” that trial counsel’s performance was adequate.
Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation
and punctuation omitted). To carry the burden of overcoming this
presumption, a defendant “must show that no reasonable lawyer
would have done what his lawyer did, or would have failed to do
what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d
221) (2016).
To satisfy the prejudice prong, a defendant must establish a
reasonable probability that, in the absence of counsel’s deficient
performance, the result of the trial would have been different. See
Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
“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.” Lawrence v. State, 286 Ga. 533, 533-534
(690 SE2d 801) (2010). Moreover, “[w]hen trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective
assistance, the defendant must make a strong showing that the
damaging evidence would have been suppressed had counsel made
the motion.” Rickman v. State, ___ Ga. ___, ___ (842 SE2d 289)
(2020) (citation and punctuation omitted).
Here, after some investigation, Detective Kenck applied for a
search warrant of Unit 9301 and wrote the affidavit accompanying
the search warrant application, which sought recovery of Papa
John’s pizza boxes, a .40-caliber gun, identification documents
belonging to Varnadore, and the phone associated with the number
that had called Papa John’s for the order Varnadore delivered,
among other items. A Gwinnett County magistrate judge issued the
warrant on March 2, 2016. On appeal, Young argues that he had
standing to challenge the search warrant and that the affidavit
supporting the search warrant was “fatally defective” because the
warrant application lacked a sufficient factual basis to constitute
probable cause. At the motion for new trial hearing, Young’s trial
counsel testified that it was his “belief that [Young] did not have standing to pursue” a motion to suppress “because [Young] was not
a resident of the apartment.”
court found that “even if trial counsel were wrong that [Young]
lacked standing, [Young] has not made a strong showing that a
motion to suppress would have been successful” because his
“arguments about the validity of [the] search warrant lack merit”
and that “[f]ailure to pursue a futile motion is not ineffective
assistance of counsel.” The trial court concluded that the
information in the application “was sufficient to uphold the search
warrant in this case,” and that the “affidavit’s recitation of facts . . .
[was] sufficient to establish a substantial basis for finding that the
items sought would be located in [Unit 9301].”
Pretermitting the question of whether Young’s trial counsel
was deficient for concluding that Young did not have standing to
challenge the search warrant, Young has failed to meet his burden
because he has not made a “strong showing” that the evidence would
have been excluded had a motion to suppress been filed. See Rickman, ___ Ga. at ___.
In determining whether probable cause exists to issue a search
warrant, the magistrate’s task is “simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the veracity and basis of
knowledge of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.” Prince v. State, 295 Ga. 788, 792 (764 SE2d 362)
(2014) (citation and punctuation omitted). “[T]he test for probable
cause is not a hypertechnical one to be employed by legal
technicians, but is based on the factual and practical considerations
of everyday life.” Smith v. State, 296 Ga. 731, 734 (770 SE2d 610)
(2015) (citation and punctuation omitted). “The duty of an appellate
court reviewing a search warrant is to determine, based on the
totality of the circumstances, whether the magistrate had a
substantial basis for concluding that probable cause existed to issue
the search warrant.” Leili v. State, 307 Ga. 339, 342 (834 SE2d 847)
(2019) (citation and punctuation omitted). “A magistrate’s decision to issue a search warrant based on a finding of probable cause is
entitled to substantial deference by a reviewing court” and “[e]ven
doubtful cases should be resolved in favor of upholding a
magistrate’s determination that a warrant is proper.” Prince, 295
Ga. at 792 (citation and punctuation omitted). “The probable cause
test requires only a fair probability — less than a certainty but more
than a mere suspicion or possibility — which by no means is to be
equated with proof by even so much as a preponderance of the
evidence.” Jackson v. State, 306 Ga. 706, 714 (832 SE2d 809) (2019)
Young contends that the “warrant application contain[ed] the
bare conclusion that . . . Buckley lived in [Unit] 9301, which is
insufficient.” But that is not so. The application specified that the
phone number associated with the TracFone that placed the Papa
John’s order that Varnadore delivered called Young’s number —
which detectives identified through Facebook — around the time of
the murder; that “Detective Kulnis found a call from the Gwinnett
County Jail” from Buckley to Young’s phone number on February 2, 2016; and that “[f]urther research into Buckley revealed that he
lived at” Unit 9301 of the Wesley Herrington Apartment Complex.
The application also included a then-recent Gwinnett County Police
Department case number associated with Buckley and then
explained that “[r]esearch into [Unit] 9301 revealed another
resident” — Lofton — and that both Buckley’s and Lofton’s Facebook
pages were then located, which led to the discovery of a Facebook
photo purportedly of Buckley, Lofton, and Young “inside of the
Wesley Herrington apartments.”
Young also argues that the application was deficient because
“there were no facts in the affidavit showing that the items sought
would be in [Unit] 9301.” But the application specified (among other
things) that the phone towers used to make the call to place the Papa
John’s pizza order “encompass[ed]” the Wesley Herrington
Apartment Complex and linked Young’s phone number to the
TracFone that placed the Papa John’s order and to Buckley and
Lofton, who both lived in Unit 9301. The application also stated that
a .40-caliber shell casing was recovered from the crime scene and that several days prior to the shooting, a photo with a .40-caliber
gun was uploaded to Buckley’s Facebook account.
Based on the totality of the circumstances set forth in the
search warrant application, the magistrate was authorized to
conclude that the facts stated in the warrant application were
sufficient to link the TracFone to the shooting, link Young to the
TracFone, and ultimately link Young, Buckley, and Lofton to Unit
9301, and “the magistrate had a substantial basis for concluding
that probable cause” therefore existed to issue the search warrant
for Unit 9301. Glispie v. State, 300 Ga. 128, 133 (793 SE2d 381)
(2016). Accordingly, because Young has not made a “strong
showing” that the search warrant for Unit 9301 lacked probable
cause and therefore would have been suppressed if counsel had
made the motion, Young’s ineffective assistance of counsel claim
fails. See Rickman, ___ Ga. at ___. See also Prince, 295 Ga. at 792.
5. We have also considered the cumulative effect of the
pretermitted errors in Divisions 3 and 4 and conclude that “the
cumulative prejudicial effect of any such errors does not require a new trial.” Smith v. State, ___ Ga. ___, ___ (___ SE2d ___) (2020).
See also Lofton, ___ Ga. at ___ (citing State v. Lane, 308 Ga. 10, 13-
18 (838 SE2d 808) (2020)).
Judgment affirmed. All the Justices concur.
DECIDED AUGUST 10, 2020. Murder. Gwinnett Superior Court. Before Judge Rich. Clark & Towne, David E. Clark, for appellant. Daniel J. Porter, District Attorney, Samuel R. d’Entremont, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew D. O’Brien, Assistant Attorney General, for appellee.