Brown v. State

307 Ga. 24

FINAL COPY

S19A0820. BROWN v. THE STATE.

BENHAM, Justice.

Appellant LaQuan Brown appeals her convictions for the

murder of Ivory Carter, the armed robbery and aggravated assault

of George Jackson, and the attempted murder and attempted armed

robbery of Frederick Knight.1 Appellant contends that the evidence

1 The crimes occurred between July 30 and August 4, 2014. In October

2014, a Chatham County grand jury returned a thirty-two count indictment

charging Brown and two co-indictees (who were not part of the trial below)

with offenses related to the crimes committed against Carter, Jackson, and

Knight. The thirty counts relevant to Brown are as follows: malice murder;

four counts of felony murder (predicated on hijacking, armed robbery,

aggravated assault, and possession of a firearm by a first offender,

respectively); three counts of hijacking a motor vehicle (Carter, Jackson, and

Knight); five counts of aggravated assault (Carter (two counts), Jackson (two

counts), and Knight); two counts of armed robbery (Carter and Jackson); two

counts of criminal attempt to commit a felony (the attempted murder and

attempted armed robbery of Knight); and thirteen counts of possession of a

firearm during the commission of a felony (one count for the use of a firearm

in each of the charged offenses). At a trial conducted from February 16 through

23, 2016, a jury returned guilty verdicts on all charges except one count of

felony murder (predicated on possession of a firearm by a first offender),

hijacking a motor vehicle (Knight), and possession of a firearm during the

commission of a felony (hijacking of Knight). In March 2016, the trial court

sentenced Brown to serve: life in prison without the possibility of parole for

malice murder; a consecutive five-year term in prison for possession of a

was insufficient to sustain her convictions, that the trial court

erroneously ruled on a number of evidentiary matters, that the rule

of lenity should be applied to her sentences, and that trial counsel

was ineffective in eight different ways. Finding no reversible error,

we affirm.

Reviewing the facts in a light most favorable to the verdicts,

the evidence adduced at trial established as follows. On July 27,

2014, Appellant contacted Prince Owens for a ride, asking to be

picked up near an apartment complex. Owens arrived at the

firearm during the commission of a felony (murder); a consecutive twenty-year

term in prison for hijacking a motor vehicle (Carter); a concurrent twenty-year

term in prison for armed robbery (Carter); a consecutive twenty-year term in

prison for hijacking a motor vehicle (Jackson); a consecutive five-year term in

prison for possession of a firearm during the commission of a felony (hijacking

Jackson); a concurrent twenty-year term in prison for armed robbery

(Jackson); a consecutive thirty-year term in prison for criminal attempt to

commit a felony (the attempted murder of Knight); a consecutive five-year term

in prison for the possession of a firearm during the commission of a felony

(attempted murder of Knight); and a concurrent twenty-year term in prison for

criminal attempt to commit a felony (attempted robbery of Knight), for a total

sentence of life imprisonment without the possibility of parole plus eighty-five

years. All other verdicts were deemed vacated by operation of law or merged

by the trial court, and the State does not raise any merger issue.

On March 23, 2016, Appellant filed a timely motion for new trial, which

was amended in September 2016. Following a hearing in November 2016, the

trial court denied the motion (as amended) on March 26, 2018. Appellant filed

a timely notice of appeal to this Court; this case was docketed to the April 2019

term of this Court and thereafter submitted for a decision on the briefs.

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location and waited for Appellant, but she never appeared and never

answered his telephone calls. When Owens returned to his home,

he discovered that it had been burglarized.

On July 30, the same telephone number that Appellant had

used to contact Owens was used to contact Ivory Carter, a sales

manager at a local car lot who drove a dealership-owned Nissan

Murano. Numerous telephone calls occurred between Appellant and

Carter that day, including one just minutes before a witness

observed three individuals surround an SUV and then heard a

number of “pops.” That witness then observed a man, later

identified as Carter, run toward him for help; Carter, who had been

shot, collapsed in front of the witness and subsequently died of his

injuries. Days later, Appellant and one of her co-indictees, Rashard

Mosley, went to stay with Appellant’s cousin, Mary Singleton. The

pair arrived at Singleton’s residence driving a Nissan Murano, and

Appellant later confided in Singleton about Carter’s shooting.

Singleton ultimately learned that the murder occurred because a

planned robbery had gone awry.

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On August 3, Appellant used Singleton’s telephone number to

contact George Jackson, who was driving in the area of Singleton’s

residence. According to Jackson, he heard someone call out his

name and then saw people on bicycles steer in front of his vehicle;

when he stopped, two individuals jumped into his SUV. One of the

individuals, a woman, brandished a weapon and demanded that

Jackson turn over his keys. Following a struggle for the firearm,

Jackson escaped on foot; his cellular telephone and car keys were

taken from the vehicle. Jackson would later point out Appellant in

a photo array, indicating that she “favored” the woman from the

incident.

The next day, Appellant used Singleton’s telephone to arrange

a meeting with Frederick Knight, who was acquainted with

Appellant from a previous romantic encounter. Knight drove to a

location near Singleton’s residence, and Appellant met him on the

street, positioning herself halfway into the vehicle. As the pair were

talking, Mosley walked up to Knight and pointed a gun at him,

telling Knight not to do anything. In response, Knight pressed the

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accelerator; Appellant jumped out of the truck, and Mosley fired

numerous shots at Knight’s fleeing vehicle. Singleton would testify

at trial that, after this incident, she overheard Appellant and Mosley

remark that they “didn’t get anything” from the incident.

After Knight reported the shooting to police, Appellant and

Mosley were arrested at Singleton’s residence. A Nissan Murano

with a shattered windshield was recovered in an adjacent lot, and a

subsequent search of Singleton’s residence yielded the firearm used

against Knight, as well as vehicle keys for both the Murano and

Jackson’s vehicle. The jury learned that Appellant’s DNA was found

on the key to the Murano; that Appellant had sent inculpatory

letters from jail acknowledging her involvement in the crimes and

comparing herself and Mosley to “Bonnie and Clyde”; and that

Appellant ultimately gave a statement to police admitting her

involvement in Carter’s murder, which, she explained, resulted from

a botched robbery.

1. Appellant first contends that the State failed to adequately

prove Count 25 — criminal attempt to commit a felony (attempted

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armed robbery of Knight) — as that crime was alleged in the

indictment and, thus, that there was a fatal variance between the

indictment and the proof at trial. This claim has no merit.

Criminal attempt is accomplished “when, with intent to

commit a specific crime, [a person] performs any act which

constitutes a substantial step toward the commission of that crime.”

OCGA § 16-4-1. Armed robbery, in relevant part, is accomplished

“when, with intent to commit theft, [a person] takes property of

another from the person or the immediate presence of another by

use of an offensive weapon[.]” OCGA § 16-8-41 (a). Here, Count 25

charged that Appellant and Mosley “individually and as parties

concerned in the commission of a crime . . . knowingly and

intentionally attempted to commit the crime of Armed Robbery . . .

in that the said accused pointed a gun at Mr. Knight and demanded

his property, acts which constitute a substantial step toward the

commission of said crime.”

Appellant argues that the evidence at trial unequivocally

established that, though a gun was pointed at Knight, there was

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never a demand for property, and, thus, that the State failed to prove

“an essential element of the crime it alleged.” Appellant’s argument,

though, hinges on Knight’s testimony that there was no verbal

demand for property. As the jury was instructed, however, the facts

of the case could be established by both direct and circumstantial

evidence.

The evidence, as presented to the jury, showed that Appellant

arranged a meeting with Knight; that, when Knight arrived at the

rendezvous point, Appellant strategically arranged herself halfway

in his vehicle (preventing him from moving the vehicle); that she

distracted Knight while Mosley approached the vehicle with a

firearm; that, while holding Knight at gunpoint, Mosley instructed

Knight not to do anything; and that, after the incident, Appellant

and Mosley lamented that the robbery was unsuccessful. Knight

testified that he perceived that he was being robbed, and the

evidence permitted the jury to similarly conclude that, though there

was no verbal request for property, the actions of and circumstances

created by Appellant and Mosley amounted to a demand for Knight’s

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property. See, e.g., Worthen v. State, 304 Ga. 862, 868 (823 SE2d

291) (2019) (“Jurors are normally entitled to make reasonable

inferences from circumstantial evidence regarding all sorts of facts,

including the facts necessary to find defendants guilty beyond a

reasonable doubt of capital crimes.”).

Moreover, even if there were a deviation between the

allegations in the indictment and the evidence adduced at trial,

there was no fatal variance.

Our courts no longer employ an overly technical

application of the fatal variance rule, focusing instead on

materiality. The true inquiry, therefore, is not whether

there has been a variance in proof, but whether there has

been such a variance as to affect the substantial rights of

the accused. It is the underlying reasons for the rule

which must be served: 1) the allegations must definitely

inform the accused as to the charges against him so as to

enable him to present his defense and not to be taken by

surprise, and 2) the allegations must be adequate to

protect the accused against another prosecution for the

same offense. Only if the allegations fail to meet these

tests is the variance fatal.

Delacruz v. State, 280 Ga. 392, 396 (627 SE2d 579) (2006).

Appellant was not subjected to either of these dangers. Count

25, which tracks the language of the relevant statutes, sufficiently

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informed Appellant of the nature and substance of the criminal

attempt charge, and Appellant “has not shown that [s]he was unable

to present a viable defense to such charges or that [s]he was

surprised or misled at trial by” the State’s failure to present evidence

of a verbal demand for property. Roscoe v. State, 288 Ga. 775, 776-

777 (707 SE2d 90) (2011). Moreover, “there is no danger that [s]he

could be prosecuted again for the same offense,” as the indictment

in this case specifically describes the incident for which Appellant

was charged and ultimately convicted. Cooper v. State, 286 Ga. 66,

68 (685 SE2d 285) (2009). There was no fatal variance. See Roscoe,

288 Ga. at 776 (no fatal variance where proof of prior felony offense

presented at trial differed from that alleged in the indictment);

Cooper, 286 Ga. at 68 (no fatal variance where the evidence of cause

of death presented at trial differed from the cause of death alleged

in the indictment); Murray v. State, 328 Ga. App. 192, 193 (761 SE2d

590) (2014) (no fatal variance where indictment alleged burglary

victim owned dwelling but evidence at trial established that the

victim did not finalize the purchase of the residence until after the

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date of the burglary). See also Lebis v. State, 302 Ga. 750, 759-760

(808 SE2d 724) (2017). Irrespective of whether there was an explicit

demand for property, significant evidence established that

Appellant, both individually and as a party to the crime, took

substantial steps toward the commission of an armed robbery

against Knight as alleged in the indictment.

Finally, we conclude that the evidence as summarized above

was sufficient to enable a rational trier of fact to conclude beyond a

reasonable doubt that Appellant was guilty of the crimes of which

she was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt

2781, 61 LE2d 560) (1979).

2. As mentioned above, Prince Owens testified at trial

concerning his encounter with Appellant and his subsequent

discovery that his residence had been burglarized. Though

Appellant was never charged in connection with that incident, the

trial court ruled that Owens’ testimony was admissible as intrinsic

evidence, concluding that the burglary was “inextricably linked” to

the charges in the indictment. Appellant argues on appeal, as she

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did below, that this evidence was not properly admitted. There is no

error.

While OCGA § 24-4-404 (b) (Rule 404 (b)) generally controls the

admission of other acts evidence, also known as “extrinsic evidence,”

evidence of criminal activity other than the charged

offense is not “extrinsic” under Rule 404 (b), and thus falls

outside the scope of the Rule, when it is (1) an uncharged

offense which arose out of the same transaction or series

of transactions as the charged offense, (2) necessary to

complete the story of the crime, or (3) inextricably

intertwined with the evidence regarding the charged

offense.

(Citations and punctuation omitted; emphasis in original.) United

States v. Edouard, 485 F3d 1324, 1344 (11th Cir. 2007). See also

Smith v. State, 302 Ga. 717 (4) (808 SE2d 661) (2017).

[E]vidence pertaining to the chain of events explaining

the context, motive, and set-up of the crime is properly

admitted if it is linked in time and circumstances with the

charged crime, or forms an integral and natural part of an

account of the crime, or is necessary to complete the story

of the crime for the jury.

(Citation and punctuation omitted.) Williams v. State, 302 Ga. 474,

485-486 (807 SE2d 350) (2017). We review the trial court’s ruling

for abuse of discretion. See Fleming v. State, 306 Ga. 240 (3) (a) (830

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SE2d 129) (2019).

Here, Appellant was charged with numerous offenses that

occurred over the course of approximately a week, all of which

involved Appellant contacting men by telephone to set them up to

steal from them. This crime spree — indeed, Appellant compared

herself to “Bonnie” of the infamous “Bonnie and Clyde” —

apparently began with the burglary of Owens’ residence and

included Carter’s murder, which occurred just days later. Appellant

used the same telephone number to contact both Owens and Carter;

Appellant references this fact, as well as the incident involving

Owens, in her numerous jailhouse letters to Mosley. As such, the

evidence concerning Owens’ encounter with Appellant and the

burglary of his home was a link in the chain of events leading up to

the murder and completed the story of the crimes for the jury. See

Williams v. State, 342 Ga. App. 564 (1) (804 SE2d 668) (2017)

(evidence of uncharged carjacking admissible as intrinsic evidence

where it occurred in the middle of a three-day carjacking spree and

where evidence from the uncharged offense helped connect

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defendant to charged offenses). See also Johnson v. State, 348 Ga.

App. 831 (1) (823 SE2d 351) (2019); Baughns v. State, 335 Ga. App.

600 (1) (782 SE2d 494) (2016). Further, though it implicated

Appellant in yet another criminal act, the probative value of

evidence concerning the burglary of Owens’ residence was not

substantially outweighed by the danger of unfair prejudice. As such,

the trial court did not abuse its discretion here.

Moreover, even if the trial court’s ruling were erroneous, any

error was harmless. See United States v. Sparks, 440 Fed. Appx.

782, 785 (11th Cir. 2011). The evidence against Appellant — which

included eyewitness accounts, DNA evidence, and Appellant’s own

inculpatory statements — was overwhelming, and there is no

reasonable probability that the evidence concerning the uncharged

burglary likely contributed to the convictions.

3. During the trial, Appellant was permitted to ask Knight

about his status as a convicted felon and to provide the jury with the

corresponding sentencing form, which reflected Knight’s convictions

for child molestation. The trial court did not, however, permit

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Appellant to question Knight about the facts underlying the

convictions or to provide the jury with the indictment setting out the

corresponding allegations; Appellant contends that this was

erroneous. However, we need not decide the bounds of what

“evidence” is admissible to show “that a witness other than an

accused has been convicted of a crime . . . punishable by death or

imprisonment in excess of one year,” OCGA § 24-6-609 (a) (1),

because any possible error here was harmless.

“In the context of Rule 609, error is harmless if the witness’

credibility was sufficiently impeached by other evidence, or if the

Government’s case was strong enough to support a conviction even

apart from the witness’ testimony.” United States v. Burston, 159

F3d 1328, 1336 (11th Cir. 1998).2 Aside from the overwhelming

evidence of guilt, Appellant used her available impeachment

material to great effect. Even though the factual details of the

2 “Rule 609 of Georgia’s new Evidence Code is materially identical to

Rule 609 of the Rules of Federal Evidence,” Bashir v. State, 350 Ga. App. 852

(830 SE2d 353) (2019), and, as such, “we look to federal case law” with respect

to the interpretation and application of the rule, State v. Almanza, 304 Ga. 553,

556 (820 SE2d 1) (2018).

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offenses were not presented during trial, Knight admitted during

cross-examination that he was a convicted felon, Knight’s

sentencing form (reflecting the nature of the offenses, Knight’s

guilty plea, and Knight’s sentences) was provided to the jury, and

Appellant’s trial counsel used the convictions during closing

argument to characterize Knight as a “liar” and a “perjurer” and to

repeatedly refer to him as a “child molester,” suggesting that his

earlier romantic relationship with Appellant may have been

improper. Accordingly, Appellant is not entitled to relief on this

claim.

4. While cross-examining the lead detective in the Jackson

case, Appellant sought to admit into evidence a form showing that

the detective had attempted to interview Appellant in October or

November 20143 but that Appellant had invoked her right to silence.

The trial court disallowed the form on relevancy grounds, and

Appellant argues on appeal that this ruling was erroneous.

3 The parties appear to agree that the date on the form is inaccurate.

The form is dated October 2014, but the transcript reflects that the attempted

interview may have actually occurred in November 2014.

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“OCGA § 24-4-401 . . . defines relevant evidence broadly 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.’” State v.

Orr, 305 Ga. 729, 736 (827 SE2d 892) (2019). “Decisions regarding

relevance are committed to the sound discretion of the trial court.”

Smith v. State, 299 Ga. 424, 429 (788 SE2d 433) (2016). Though not

entirely clear from the transcript, it appears that trial counsel was

aiming to use Appellant’s invocation of her right to silence with

respect to the Jackson interview to somehow cast doubt on the

voluntariness of her earlier statement regarding Carter’s murder.

Specifically, it appears that trial counsel wanted to use the form to

imply that “the police ke[pt] coming out and talking to [Appellant]

. . . eventually [. . .] get[ting] her to [. . .] waive her rights.” However,

the two interviews involved different crimes and different

investigators, and Appellant invoked her right to silence with

respect to the Jackson case months after her statement concerning

Carter’s murder. The rights-waiver form from the Jackson

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interview would not, as trial counsel argued, have been relevant to

show that Appellant was somehow harassed into providing her first

statement; indeed, the form would have shown quite the opposite —

namely, that despite previously agreeing to give a statement, she

opted to invoke her right to silence when asked to provide a second

one. Accordingly, the trial court did not abuse its discretion in

concluding that the rights-waiver form was irrelevant to the

question of the voluntariness of Appellant’s statement concerning

the murder.

5. Appellant next argues that the trial court erred by

sentencing her for criminal attempt to commit murder on Count 23

and criminal attempt to commit armed robbery on Count 25. In her

view, the rule of lenity requires that she be sentenced for aggravated

assault on Count 23 and aggravated assault with intent to rob on

Count 25 because the facts presented at trial also satisfy the

elements of those offenses. The rule of lenity requires no such thing.

As we have explained before,

although the rule of lenity may require a court to reverse

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a conviction based upon the violation of a statutory

provision that has been effectively abrogated by a

duplicative provision imposing a lesser penalty, the rule

does not allow the court to impose a sentence for an offense

different than the one unambiguously provided for in the

statute of which the defendant was found guilty. Here,

[Appellant] was not charged with or convicted of

[aggravated assault or] aggravated assault with intent to

rob, and [she] has not challenged [her] prosecution for

[attempted murder or] attempted armed robbery.

Instead, [she] was convicted of [criminal attempt to

commit murder and] criminal attempt to commit armed

robbery and was sentenced accordingly. Thus, the trial

court did not err.

(Punctuation and footnote omitted; emphasis omitted) Davis v.

State, 306 Ga. 140, 143 (829 SE2d 321) (2019) (quoting State v.

Hanna, 305 Ga. 100, 105 (2) (823 SE2d 785) (2019)). Accordingly,

this claim is without merit.

6. Finally, Appellant asserts that her trial counsel was

constitutionally ineffective in eight different ways; the trial court

concluded that Appellant had demonstrated neither deficient

performance nor prejudice. We agree with the trial court’s

assessment that Appellant is not entitled to relief.4

4 Appellant puts forth no meaningful argument regarding prejudice with

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To succeed on her claims, Appellant must show both that her

trial counsel’s performance was deficient and that she suffered

prejudice as a result of counsel’s deficient performance. Strickland

v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984). “To prove deficient performance, Appellant must show that

[her] lawyer 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 (3) (745 SE2d

637) (2013). Appellant must also show that “the deficient

performance prejudiced the defense, which requires showing that

counsel’s errors were so serious that they likely affected the outcome

of the trial.” Jones v. State, 305 Ga. 750, 755 (4) (827 SE2d 879)

(2019). “[S]atisfaction of this test is a difficult endeavor. Simply

because a defendant has shown that [her] trial counsel performed

respect to her eight claims of ineffectiveness. Instead, Appellant “cites,

without comment or differentiation, 14 cases for [her] general assertion that

failure to object to objectionable testimony ‘can establish ineffective assistance

of counsel.’” Koonce v. State, 305 Ga. 671, 673 (827 SE2d 633) (2019). We note

that “this Court is not required to scour the record for support for an

appellant’s arguments.” Davis, 306 Ga. at 144.

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deficiently does not lead to an automatic conclusion that [she] was

prejudiced by counsel’s deficient performance.” Davis, 306 Ga. at 144

(3). And “[i]f an appellant is unable to satisfy one prong of the

Strickland test, it is not incumbent upon this Court to examine the

other prong.” (Citation and punctuation omitted.) Id. at 143 (3).

(a) Appellant argues that trial counsel should have objected

when an investigator testified that she identified Appellant using a

“jail database.” According to Appellant, trial counsel’s failure to

object permitted the “introduction of improper character evidence.”

However, this passing and non-responsive reference to Appellant’s

personal information being included in a jail database did not

amount to improper character evidence, and trial counsel’s failure

to object does not amount to deficient performance. See Babbage v.

State, 296 Ga. 364 (4) (d) (768 SE2d 461) (2015) (“[I]t is well

established that a witness’ passing reference to a defendant’s past

criminal record — particularly when it is not responsive to the

question posed — does not improperly place his character in issue.”).

Moreover, even if trial counsel should have objected, Appellant has

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made no showing that the passing reference had any impact on the

outcome of her trial given the overwhelming evidence of her guilt.

See id. at 370.

(b) While in jail, Appellant wrote a letter to Owens asking him

to convince Knight not to testify at trial. At trial, the State had

Owens read the letter aloud and then had it admitted into evidence;

later, the State had a second witness (an investigator) read the letter

aloud while it was displayed by a digital projector for the jury.

Appellant contends that trial counsel failed to object to this

“needlessly cumulative” presentation of evidence.

As an initial matter, it is not at all clear that the testimony was

cumulative. The transcript reflects that Owens had a difficult time

reading the letter — both due to the handwriting and the physical

condition of the letter — and it is not at all obvious that the entirety

of the letter was accurately read to the jury. The latter reading and

presentation of the letter appears to have been more complete and

accurate. Further, Appellant makes no showing that having a

second witness read the letter while it was displayed on a screen

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affected the outcome of her trial. The letter did not directly

implicate Appellant in the charged offenses, the evidence against

Appellant with respect to Knight was strong, and the letter, as

admitted into evidence, would have been provided to the jury for its

consideration during deliberations.

(c) Appellant next contends that trial counsel was ineffective

for failing to object when Knight “speculated” that he was being

robbed by Appellant and Mosley, though no verbal demand for

property was made. However, Knight’s testimony was “rationally

based on [his] perception and helpful to understanding [his]

testimony.” (Citation and punctuation omitted.) Grier v. State, 305

Ga. 882, 885 (828 SE2d 304) (2019). See also OCGA § 24-7-701 (a).

Even though there was no verbal demand for property, Knight’s

perception that he was being robbed was rationally based on his

interaction with Appellant and then being held at gunpoint and told

not to move. Id. Accordingly, the testimony was proper and there

was no cause for objection.

(d) During trial, a detective summarized a statement provided

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by Knight at the time that he identified Appellant from a

photographic lineup, testifying as follows:

When [Knight] identified the photograph of

[Appellant], he identified her as the female he had been

in phone contact with, that had asked him to come over to

Cornwall Street, and to bring the $50. And then

approached his passenger door, to which he opened, and

she stood in the doorway. And as she stood there,

immediately the male approached with the gun, told him

not to move, and then he pulled off and shots were fired.

Appellant complains that trial counsel was ineffective for failing to

lodge a hearsay objection. However, at the time the detective

testified, Knight had already given extensive testimony concerning

the events in question (and had been thoroughly cross-examined),

and, further, a different investigator had already provided

substantially similar testimony concerning Knight’s statement to

law enforcement. Accordingly, this testimony was cumulative of

evidence already presented to the jury, and “[t]rial counsel was not

deficient in failing to object to the cumulative testimony of [the]

[d]etective” on this matter. Koonce v. State, 305 Ga. 671, 676 (827

SE2d 633) (2019). See Miller v. State, 296 Ga. 9 (4) (b) (764 SE2d

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823) (2014) (trial counsel not ineffective for failing to object to

hearsay testimony where it was cumulative of other testimony

already before the jury). Further, because the evidence tying

Appellant to this incident was strong — including telephone records,

an eyewitness account, and physical evidence — Appellant cannot

demonstrate prejudice.

(e) Appellant next complains that trial counsel failed to object

when an investigator “identified” Appellant in a surveillance video

and related still photographs. Specifically, Appellant claims that

the investigator’s identification was improper because it was made

by photographic comparison rather than any “prior familiarity with

[Appellant].” This claim fails for two reasons. First, the testimony

about which Appellant complains relates to how the investigator

identified Appellant in the surveillance video during the course of

her investigation; indeed, at the time of trial, the investigator had

arrested, met with, and interviewed Appellant about the murder,

and there is no argument that the investigator was incapable of

making a lawful identification of Appellant. Second, at the time the

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investigator testified, Appellant had already been identified as being

in the surveillance video by her cousin, Singleton, and a still

photograph from the video had already been admitted into evidence;

as such, the evidence was merely cumulative of that already before

the jury. See Miller, supra.

Moreover, the surveillance-video evidence pertained to the

investigation of Carter’s murder and the identification of Appellant

as a suspect; however, Appellant’s identity with respect to Carter’s

murder (and her presence in the surveillance video) was hardly in

doubt. Appellant made numerous admissions regarding her

involvement in Carter’s murder — to her cousin, to law enforcement,

and in her jailhouse letters; she placed herself at the location where

the surveillance video was taken; and DNA evidence connected her

to the crime. As such, there is also no prejudice.

(f) The State successfully admitted a number of jailhouse

letters written by Appellant to Mosley; an investigator testified

during trial that, in one of those letters, Appellant was “coaching”

Mosley and “telling him what to say” with respect to Carter’s

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murder. Appellant contends that trial counsel should have objected,

as it was improper for the investigator to “draw inferences or express

conclusions that the jurors should and can draw for themselves.”

This claim, like the others, fails because Appellant cannot

demonstrate prejudice.

In the letter at issue, Appellant admits to Mosley that she

made a statement to police concerning the murder, attempts to

minimize the import of her inculpatory statement, and begs Mosley

for forgiveness; she also tells Mosley what she supposedly told police

and advises him to claim self-defense. However, the jury learned

that the letter did not accurately recount what Appellant had told

investigators. Further, though the letter advises Mosley that he

should claim self-defense, Appellant had, in fact, already implicated

both of them in the armed robbery and murder of Carter. Finally,

Mosley did not testify at Appellant’s trial, Appellant did not pursue

a self-defense theory at trial, the letter at issue was admitted into

evidence for the jury’s consideration during deliberation, and the

evidence against Appellant concerning Carter’s murder was

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overwhelming. Accordingly, trial counsel’s failure to object to the

investigator’s characterization of Appellant’s letter did not affect the

outcome of the trial.

(g) During trial, an investigator testified that Carter should

have had a wallet in his possession at the time he was murdered.

Appellant complains that the investigator had no independent

knowledge of this fact — having only learned it from Carter’s wife –

and that trial counsel should have objected to this testimony. Again,

the evidence implicating Appellant in the crimes against Carter,

including armed robbery, was overwhelming, and, thus, Appellant

cannot demonstrate that she was prejudiced by trial counsel’s

failure to object to this snippet of testimony.

(h) Appellant contends that trial counsel was ineffective for

failing to object when an investigator, who was discussing

Singleton’s telephone records, testified that the records “appeared”

to show Appellant “shopping for her next victim.” Again, even

presuming that trial counsel should have objected to this “opinion”

testimony, Appellant cannot demonstrate prejudice from this

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passing comment given the overwhelming evidence presented at

trial that, on multiple occasions, Appellant contacted men by

telephone to set them up for theft or robbery.

(i) Finally, the cumulative prejudice from any assumed

deficiencies discussed in Division 6 is insufficient to show a

reasonable probability that the results of the proceedings would

have been different in the absence of the alleged deficiencies. The

evidence against Appellant was considerable with respect to each of

her convictions and included multiple admissions, eyewitness

accounts, DNA evidence, and physical evidence connecting

Appellant to the crime spree. See Jones, 305 Ga. at 757 (4) (e).

Judgment affirmed. All the Justices concur.

DECIDED OCTOBER 7, 2019.

Murder. Chatham Superior Court. Before Judge Abbot.

Steven L. Sparger, for appellant.

Meg E. Heap, District Attorney, Christine S. Barker, Assistant

District Attorney; Christopher M. Carr, Attorney General, Patricia B.

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Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Scott O. Teague, Assistant Attorney

General, for appellee.

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