SINKFIELD v. THE STATE
S23A1201
Supreme Court of Georgia
March 5, 2024
BOGGS, Chief Justice.
NOTICE: This оpinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
Appellant Remond Sinkfield challenges his convictions for felony murder and other crimes in connection with the death of Levi Atkinson, who either was pushed or jumped out of a moving vehicle after an altercation with Appellant, was struck by another car, and died from his injuries five days later. Appellant contends that the evidence was insufficient to support his convictions for felony murder and theft by taking; that the trial court erred in denying his motion to suppress a pretrial interview by police; that the trial court committed plain error in several ways; and that the trial court abused its discretion in various evidentiary rulings. He also contends that he was denied effective assistance of counsel due to his trial counsel‘s deficiencies, including by failing to retain a medical expert to testify as to the cause of
1. The evidence presented at trial showed the following.2 Appellant and Atkinson were acquaintances, and Appellant supplied Atkinson with drugs and prostitutes. Atkinson owned a business and was generous with his money, occasionally paying bills, such as for rent and cell phone service, for Appellant and others, and also sometimes lent his car to Appellant and others. Late in the evening on January 23, 2012, Atkinson was at his home in Douglas County celebrating his birthday with Deshanqueanna Lundy, who was Appellant‘s girlfriend. Early the next morning, on January 24, Appellant was driven to Atkinson‘s home by Cleo Simmons; Lisa Johnson was with them. Appellant delivered crack and powder cocaine to Atkinson, and the four consumed the drugs. Later that morning, Atkinson gave Appellant his ATM card so Appellant could withdraw money to pay for the drugs Appellant had delivered. Appellant and Simmons left the home, drove to an ATM machine, and used Atkinson‘s ATM card to withdraw $300, which was the daily limit for Atkinson‘s ATM card; Appellant also bought additional drugs. After Appellant and Simmons returned, the group continued to use drugs.
In the early afternoon, Appellant and Lundy borrowed Atkinson‘s car and left. After dropping off Lundy, Appellant saw a police officer who knew him and knew that he did not have a valid driver‘s license. To avoid being arrested for driving with a suspended license, Appellant turned into a Travelodge motel in Fulton County near the intersection of Fulton Industrial Boulevard and I-20, where he sometimes stayed. Appellant parked Atkinson‘s car and left.
In the early evening, Atkinson received a call from his friend Charlene Shivers. Shivers told Atkinson that she had seen his car at the Travelodge. Atkinson asked Shivers for a ride so he could pick up his car. When Atkinson and Shivers arrived at the Travelodge, the police were preparing to impound the car, but Atkinson was able to retrieve it and drive it home. By the time Atkinson arrived back home, Johnson and Simmоns were gone.
Later that evening, Simmons drove Appellant back to Atkinson‘s home. Appellant demanded payment for Lundy‘s time and for the crack cocaine he had delivered earlier in the day; however, Atkinson did not have any cash. Atkinson, Appellant, and Simmons drove away in Atkinson‘s car. During the drive, Atkinson tried to obtain cash by calling Shivers and his two daughters, who lived in Atlanta. He and Appellant also went to Shivers‘s room at the Skyway Inn, a motel near the intersection of Fulton Industrial Boulevard and I-20. Atkinson was unable to obtain any cash, and after leaving Shivers‘s room, Appellant and Atkinson returned to the car, and they picked up Johnson, who had been at the Skyway. Shortly thereafter, Atkinson either jumped or was pushed from the car while it was in the middle of an intersection, and he was hit by at least one other car.
Corporal David Jira of the Fulton County Police Department was the first officer on the scene. Atkinson told him that he had been kidnapped at gunpoint from his home in Douglas County and that when he got to the intersection of Fulton Industrial and I-20, he was pushed from the car. Atkinson told a paramedic at the scene that he jumped out of a car because someone tried to kill him; the paramedic testified at trial that Atkinson smelled of alcohol. About an hour later, Cpl. Jira discovered Atkinson‘s car parked by а gas pump at a gas station about a mile from the intersection where Atkinson had been injured. Cpl. Jira was familiar with Appellant and knew that he had been identified as a suspect. He saw Appellant inside the gas station, and when Appellant came out to Atkinson‘s car, Cpl. Jira detained him and asked his name; Appellant answered by giving his brother‘s name. After being told why he was being detained, Appellant stated that what was alleged was not true; that he did not push Atkinson from the car; and that Atkinson owed his girlfriend approximately $700. When Cpl. Jira confirmed that Appellant had given him the wrong name, he arrested him. No drugs or weapons were found in the car or on Appellant‘s person at the time of his arrest.
At trial, the State presented evidence showing that the cause of Atkinson‘s death five days after his admission to the hospital was blood clots, which were a consequence of injuries he received when he fell out of a moving vehicle; the evidence included the medical examiner‘s testimony, his hospital medical records, аnd the autopsy report. Specifically, the medical examiner, who performed the autopsy, testified that the cause of death was right pulmonary and bilateral bone thromboembli, or blood clots, due to pelvic, rib, and vertebral fractures. She explained that blood clots were not uncommon when a person has a fracture of the thigh or arm or a pelvic fracture; she also noted that blood clots can take time to develop. She classified the manner of death as a homicide. Additionally, the medical records showed that on the morning of Atkinson‘s death, he had developed an altered mental status, which the medical examiner testified can be caused by blood clots. The medical examiner acknowledged that Atkinson did not have rib fractures upon his admission to the hospital, and she opined that he may have sustained the rib fractures as a result of having to be restrained due to his altered mental status or as a result of resuscitation efforts. She also opined that the large blood clot that was visible when she did the autopsy would not have come from the rib fracture because he did not have the rib fracture when he was admitted to the hospital. On cross-examination, she acknowledged that the autopsy did not reveal any injury to Atkinson‘s neck.
The State called Johnson and Shivers as witnesses. Johnson‘s pretrial interview with Lieutenant John Cross of the Fulton County Police Department was audio- and video-recorded and played for the jury. In that interview, she explained that she was in the car with Atkinson, Appellant, and Simmons late on the evening of January 24, 2012. Atkinson was driving, Appellant was in the passenger seat, and Simmons was sitting behind Appellant. Appellant and Atkinson were having a heated argument about money that Appellant said Atkinson owed him. Atkinson was talking on the phone with Shivers and others, trying to get money. Atkinson said he would drive back to the Skyway, but Appellant said he did not want to go that way. Atkinson did not appear to be afraid and told Appellant that he would get money in the morning. When Atkinson started to get into a turn lane to turn back toward the Skyway, Appellant
At trial, Johnson‘s testimony about what happened on January 24 was largely consistent with her pretrial statement. However, she testified that Appellant and Atkinson were not having a discussion but were both on their phones and that Atkinson was trying to get money so that he could pay her because she was planning to spend the night with him, and he did not want her to have to wait for her money until the morning. She also testified that Appellant told Atkinson, “You driving crazy, you drunk“; that Appellant asked to be dropped off; that when Appellant grabbed the steering wheel, he told Atkinson, “You finna kill us turning into oncoming traffic“; and that after Atkinson rolled out of the car, Appellant put the car in park, got out of the car, and she “suppose[d]” he talked to Atkinson. She testified that she did not see what happened to Atkinson‘s car.
According to Shivers‘s trial testimony, Atkinson called her while he was in the car with Appellant, asked for money, and said Appellant “was down there with a gun demanding money.” Even though Shivers told Atkinson she did not have money, he came to her door at the Skyway; Appellant stood behind him and had his hands in his jacket. When Shivers said she did not have any money, Appellant and Atkinson left. About ten minutes later, Atkinson called her again, but he was interrupted by Appellant “hollering” at him to “go straight.” Then the call dropped. Shortly thereafter, Shivers saw Johnson, who told her that Atkinson had been hit by a car; that Simmons had been choking Atkinson; and that Appellant had been hitting him.3 Shivers ran to the scene and saw Atkinson being loaded into an ambulance; he told her that Appellant tried to kill him.
The State also called Atkinson‘s daughter Felicia, and she testified that her father called her the night of January 24, asking for money, which was very unusual. She also had a conversation with him while he was in the hospital. During that conversation, he said that Appellant, Johnson, and Simmons came to his home uninvited. Appellant brought drugs that they all shared and then demanded he pay for everything when they finished. When he said he would not pay, someone slapped a beer bottle out of his hand, pulled a gun on him, and made him get in his car to go get money. The people with him were choking him, poking him with a gun, and saying they would take him to a hotel off Fulton Industrial Boulevard to kill him. Felicia testified that she went to her father‘s home after visiting him in the hospital and saw an opened bottle of beer on the living room floor.
Appellant was interviewed on February 6 by Lt. Cross; that interview was audio-recorded, and a portion was played for the jury. In that interview, Appellant said that Atkinson owed him money for drugs and for prostitutes. He admitted that during the drive on January 24, he was yelling at Atkinson about the money; he was planning to take Atkinson to an аpartment where Atkinson had never been and hold him there until after midnight when Atkinson could withdraw money from an ATM; he was “dead serious” about not going back to the Skyway; and he grabbed the steering wheel right before Atkinson jumped out of the car.
Appellant testified in his own defense as follows. He lived at the Travelodge and dealt drugs for a living. On January 24, 2012, Simmons drove him to Atkinson‘s home to deliver drugs that Lundy had requested. He, Atkinson, Simmons, and Lundy shared the drugs. At the time, Atkinson owed Appellant $300 for Lundy‘s company and $400 for the drugs. Atkinson wanted more crack after finishing the drugs Appellant brought, so he sent Appellant and Simmons in his car with his ATM card to get cash. Appellant retrieved
Later, Appellant returned to Atkinson‘s home with more crack. Atkinson and Appellant argued about Atkinson telling the police Appellant had stolen his car, and Appellant knocked a beer bottle out of Atkinson‘s hand while Atkinson was sitting in a chair. Appellant told Atkinson the crack he just picked up had to be paid for. Atkinson and Appellant left in Atkinson‘s car to get the money; Atkinson was driving, Appellant was in the front passenger seat, and Simmons was in the back seat. Their first stop was the Skyway to ask Shivers for money. After that visit was unsuccessful, they saw Johnson across the street and picked her up. Johnson suggested they go to the truck stop to ask someone they knew there for money. They drove to the truck stop, but police officers were there, so thеy did not stop and headed back toward the Skyway. Police were also present at a store near the Skyway. Appellant had become irritated and saw Atkinson was about to turn toward the Skyway into oncoming traffic, so Appellant grabbed the steering wheel. The car continued forward while Atkinson argued with everybody in the car and someone on the phone about how he “bent over backwards” for them, but nobody would help him. Atkinson jumped from the car at the next light, and a car hit him while he stood in the street. Appellant placed the car in park and got out. Another car then struck Atkinson, and Atkinson leaned up against that car. Appellant unsuccessfully attempted to get Atkinson back in the car and noticed a man calling the police. He decided to leave in Atkinson‘s car because he had outstanding warrants and because of the drugs in the car. He told Atkinson he was leaving and that because of the drugs and cup of liquor in the car, “the police was going to come” and that Atkinson “was going to go to jail.” He told Simmons to tell Johnson to stay and tell the police what happened. He drove away and hid the drugs at a gas station, and then he drove to another gas station near the scene of the incident.
During the cross-examination of Appellant, the State questioned him about seven of his prior convictions — two for theft by taking a motor vehicle, four for providing false information to law enforcement, and one for possession of a firearm by a convicted felon.
2. Appellant raises several contentions in challenging the constitutional sufficiency of the evidence for his convictions for felony murder and for theft by taking.4 In reviewing a challenge to the constitutional sufficiency of the evidence, we review the evidence in the light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). Our review “leaves to the jury the resolution of conflicts in the evidence, the weight of the evidence, the credibility of witnesses, and reasonable inferences to be made from basic facts to ultimate facts.” Wilkerson v. State, 317 Ga. 242, 245 (892 SE2d 737) (2023) (cleaned up).
(a) Appellant first argues that there was insufficient evidence that Atkinson‘s death was caused by the injuries he received after he fell out of the car and that the State failed to prove that the underlying felony of aggravated assault with intent to rob had a sufficient nexus to Atkinson‘s death. These arguments implicate two elements of felony murder — proximate cause and that the
With regard to proximate cause, Appellant points to evidence that while hospitalized, Atkinson developed an altered mental status, had to be restrained, and fought against the restraints. Appellant argues that Atkinson‘s rib fractures were likely a result of these complications and that the blood clots that caused Atkinson‘s death could have resulted from the rib fractures. He argues that such complications are reasonably foreseeable in a hospital setting and could have been the proximate cause of Atkinson‘s death.
These arguments, however, rely on a view of the evidence that is most favorable to the defense, rather than to the verdict, which is the proper standard. See Jackson, 443 U.S. at 319. Moreover, the medical records and the testimony of the medical examiner, viewed in the light most favorable to the verdicts, were sufficient for a rational trier of fact to find beyond a reasonable doubt that the cause of death was blood clots resulting from the injuries Atkinson sustained on January 24. See, e.g., Harris v. State, 313 Ga. 653, 656-657 (872 SE2d 732) (2022) (evidenсe sufficient to establish nexus between defendant‘s shooting of victim and victim‘s death from blood clots resulting from being shot); Treadaway v. State, 308 Ga. 882, 884-885 (843 SE2d 784) (2020) (holding that evidence was sufficient and “whether [defendant‘s] actions were the sole cause of [her husband‘s] death or would have otherwise caused his death under different circumstances is immaterial,” where evidence showed defendant beat her highly intoxicated, disabled husband with a metal broom while he was in the bathtub and cause of death was drowning and blunt-force trauma (cleaned up)). See also Eberhart v. State, 307 Ga. 254, 260-262 (835 SE2d 192) (2019) (evidence sufficient to uphold felony murder conviction based on aggravated assault where medical examiner testified that the victim died from hypertensive cardiovascular disease exacerbated by physical exertion and TASER application).
With regard to the “in the commission of” element, Appellant argues that Atkinson voluntarily exited the car; that there was no physical evidence that Atkinson had been choked; and that Johnson said that she did not see a gun. Again, these arguments rely on a viеw of the evidence that is most favorable to the defense. The evidence, viewed in the light most favorable to the verdict, was sufficient to authorize a rational jury to find beyond a reasonable doubt that just before Atkinson exited the car, Appellant was threatening Atkinson with bodily harm if he did not pay the money owed; and that Appellant either pushed Atkinson out of the car, or Atkinson, in reasonable fear for his life, jumped out of the car. This evidence was sufficient to support Appellant‘s conviction for felony murder while in the commission of aggravated assault with intent to rob. See, e.g., Adcock v. State, 279 Ga. App. 473, 473-474 (631 SE2d 494) (2006) (evidence was sufficient to support conviction for aggravated assault with intent to rob where victim testified that defendant jumped in car, demanded money, and threatened him with knife, and where defendant testified that he entered car because victim owed him money but that he did not threaten victim). See also Wayne R. LaFave et al., Substantive Criminal Law § 6.4 (h) (October 2023 online update) (“[i]mpulsive acts of the victim in an effort to escape being harmed by the defendant‘s conduct” are sufficient to establish causation between defendant‘s commission of felony and victim‘s death).
(b) Appellant also contends that there was insufficient evidence that he harbored an
Moreover, the jury was not required to credit Appellant‘s testimony as to his intent to help Atkinson by taking the car away because it had drugs in it. In fact, if the jury disbelieved Appellant‘s testimony, such testimony could serve as substantive evidence that his intent was to deprive Atkinson of his property. See Maynor v. State, 317 Ga. 492, 498 (893 SE2d 724) (2023) (jurors are “authorized to consider their disbelief in Appellant‘s testimony . . . as substantive evidence of his guilt“). Under the proper standard of review set forth above, we conclude that the evidence at trial was sufficient to authorize a rаtional trier of fact to find that Appellant committed theft by taking. See, e.g., Jones v. State, 303 Ga. 496, 497-499 (813 SE2d 360) (2018) (evidence sufficient to support theft by taking conviction where, after shooting his cousin, defendant drove away from scene in his cousin‘s girlfriend‘s car, without her permission, and was still in possession of car when apprehended by police); Shaw v. State, 247 Ga. App. 867, 871-872 (545 SE2d 399) (2001) (evidence sufficient to support intent element of conviction for theft by taking where there was evidence suggesting that the victim may have given the defendant her car keys, but there were also circumstances, including defendant‘s demeanor toward victim and when confronted by officers, that permitted jury to infer defendant‘s criminal intent to deprive victim of her property).
3. Appellant contends the trial court erred in failing to grant a new trial as a “thirteenth juror” under
Appellant‘s claim is not subject to our review because the decision to grant or deny a new trial under these statutes is vested solely within the discretion of the trial court and is not subject to review on appeal. See Ridley v. State, 315 Ga. 452, 456 (883 SE2d 357) (2023).5 To the extent that Appellant contends that the trial court failed to exercise its discretion as a “thirteenth juror” by his argument that the trial court failed “to address the specific issues raised in the amended motion for new trial,” the record clearly demonstrates otherwise. The trial court‘s order on the motion for new trial stated that it “has reviewed the evidence of record,
including re-examining such factors as the weight of the evidence and credibility of the witnesses . . . as an independent fact finder.”6 Thus, the trial court plainly applied
4. Appellant challenges the admission of his post-arrest interview by police on the sole ground that he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). “To use a defendant‘s custodial statements in its case-in-chief, the State must show that the defendant was advised of his Miranda rights and that he voluntarily, knowingly, and intelligently waived them.” Huffman v. State, 311 Ga. 891, 893 (860 SE2d 721) (2021) (cleaned up). A written waiver of rights is not necessary; a suspect advised of his rights orally can waive them. See id. at 895. In ruling upon the admissibility of a custodial statement, a trial court must consider the totality of the circumstances. See id. at 893. We review a trial court‘s factual findings and credibility determinations for clear error and apply the law de novo. White v. State, 307 Ga. 601, 602 (837 SE2d 838) (2020).
On February 6, 2012, Lt. Cross spoke to Appellant at the Fulton County Jail and notified him that he was being charged with murder in connection with Atkinson‘s death. At trial, Lt. Cross testified outside the presence of the jury that he explained to Appellant that he did not have to speak with him and held up a waiver-of-rights form so Appellant could see it. There was no pen for Appellant to sign the form, but Appellant said, “I understand” and that he wanted to speak with Lt. Cross. Additionally, Appellant testified at trial that when Lt. Cross spoke with him, he understood his Miranda rights and spoke with the officer willingly. Under these circumstances, we conclude that this claim fails.
5. Appellant also contends the trial court committed plain error in several ways.7 To show plain error, Appellant must identify an error that was not affirmatively waived; that was clear and obvious beyond reasonable dispute; that affected his substantial rights, which generally requires an “affirmative showing” that the error probably did affect the outcome below; and that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Ruthenberg v. State, 317 Ga. 227, 230-231 (892 SE2d 728) (2023). “Satisfying all four prongs of this standard is difficult, as it should be.” Id. at 231 (cleaned up).
(a) First, Appellant challenges the admission of certain evidence during the testimony of Gallo, who testified with the assistance of an interpreter, as hearsay, see
Appellant contends that Gallo‘s reliance on her sister-in-law as an interpreter constituted hearsay. Pretermitting whether Appellant affirmatively waived this objection,
Appellant also asserts, in a single sentence, that the admission of the testimony of Gallo‘s sister-in-law violated his right of confrontation under the
(b) Second, Appellant сontends that the trial court plainly erred in allowing the prosecutor to use leading questions in examining Gallo and to repeat questions to several witnesses that had been asked and answered. However, Appellant has not set forth any of the allegedly improper questions or answers, instead, simply including string cites to pages of the trial transcript. With respect to the allegedly leading questions, our review of the record shows that they easily could have been rephrased in an unobjectionable way to elicit the same testimony. With respect to the questions that allegedly had previously been asked and answered, we conclude that the answers given were cumulative of testimony that Appellant has not challenged on appeal. Moreover, Appellant has failed to explain how any of the alleged errors were of a nature to have “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Ruthenberg, 317 Ga. at 230. Thus, Appellant has failed to meet his burden of showing that the allegedly improper questions likely affected the outcome of the trial. See McCalop v. State, 316 Ga. 363, 375 (887 SE2d 292) (2023) (plain error claim fails when appellant cannot establish that allegedly improper testimony likely affected outcome of trial); United States v. Coleman, 914 F.3d 508, 512 (7th Cir. 2019) (“even when they are improper, leading questions rarely give rise to plain error“). See also Davis v. State, 306 Ga. 140, 149 (829 SE2d 321) (2019) (holding that appellant failed to establish prejudice stemming from counsel‘s failure to object to leading questions because an objection was unlikely to have prevented the admission of the testimony); Grier v. State, 313 Ga. 236, 246 (869 SE2d 423) (2022) (equating the prejudice prong of the plain-error test with the prejudice prong for an ineffective-assistance claim).
(c) Third, Appellant contends that the trial court committed plain error in allowing the prosecutor to repeat Appellant‘s testimony in cross-examining Appellant. However, there is no error, much less a clear and obvious one, in a party exercising its right to “a thorough and sifting cross-examination,”
(d) Fourth, Appellant contends that the trial court plainly erred by admitting facts underlying Appellant‘s prior convictions. Outside the presence of the jury, the parties discussed the State‘s ability to impeach Appellant with proof of his prior convictions. When the trial court ruled that seven of Appellant‘s prior convictions — including four for giving false information to law enforcement — would be admissible, it also advised the parties that the State would not be permitted to go into the details of the convictions. On cross-examination, Appellant admitted he had been convicted of the prior offenses, and the State introduced, without
Pretermitting whether the prosecutor‘s few additional questions about the false-information convictions were improper, Appellant has not made an affirmative showing that any such error probably affected the outcome below, as required to prevail on his plain error claim. See Ruthenberg, 317 Ga. at 230-231. There was overwhelming evidence, including Appellant‘s own testimony, that Atkinson exited the car because he reasonably feared for his life, as well as substantial medical testimony that the injuries Atkinson sustained on January 24 were the proximate cause of his death. Additionally, Appellant admitted in his trial testimony that after being found in possession of Atkinson‘s car, he provided a false name to Cpl. Jira, and the State‘s closing argument made only a brief reference to Appellant‘s prior convictions. See id. at 231 (holding that any error in admitting evidence of prior convictions did not constitute plain error where appellant failed to make affirmative showing that admission likely affected outcome of trial).
(e) Finally, Appellant argues plain error based on his appellate counsel‘s inability to obtain transcripts for four pretrial hearings that occurred under his first indictment, which was later superseded, and on the trial court‘s limiting his time for questioning his trial counsel at the hearing on the motion for new trial. However, these alleged errors are not subject to plain-error review. See Keller v. State, 308 Ga. 492, 497 (842 SE2d 22) (2020) (listing limited categories of alleged errors for which plain-error review is available).
For all these reasons, Appellant‘s claims of plain error fail.
6. Next, we address Appellant‘s contention that the trial court abused its discretion in overruling several evidentiary objections. We review a trial court‘s rulings
(a) Appellant contends that the trial court erred in overruling several objections during Lt. Cross‘s testimony. First, he contends that the trial court abused its discretion in overruling his hearsay objection when Lt. Cross testified that Johnson said during her pretrial interview that Appellant and Atkinson were having a heated argument in the car. However,
Second, Appellant contends that the trial court abused its discretion in overruling his objection to the prosecutor asking Lt. Cross whether Appellant‘s pretrial statement was consistent with facts uncovered by the investigation, to which Lt. Cross respondеd, “There were some discrepancies.” On appeal, Appellant argues that a witness may not give opinion testimony on the “ultimate issue,” citing case law decided under the former Evidence Code. However, at trial Appellant provided no basis for his objection, stating merely “objection.” See
Third, Appellant asserts that the trial court abused its discretion in overruling a single “leading” objection when the prosecutor asked Lt. Cross if Appellant admitted in his pretrial interview that he tried to get money from Atkinson. However, Appellant has failed to demonstrate harm given that the jury heard Appellant‘s pretrial interview in which he admitted that he wanted Atkinson to pay him for the drugs. Thus, regardless of whether the trial court abused its
(b) Appellant also contends that the trial court abused its discretion in overruling his hearsay objection to testimony by Atkinson‘s daughter Felicia about the convеrsation she had with her father the day after he was admitted to the hospital. Regardless of whether the trial court abused its discretion in overruling Appellant‘s hearsay objection, any error was harmless because Felicia‘s testimony was cumulative of the testimony of multiple other witnesses. See Leonard v. State, 316 Ga. 827, 834 (889 SE2d 837) (2023) (pretermitting whether trial court erred in admitting statements victim made before his death and holding that any error was harmless where substance of statements was cumulative of other properly admitted testimony). See also Anglin, 302 Ga. at 336 (“The erroneous admission of hearsay is harmless where substantial, cumulative, legally admissible evidence of the same fact is introduced.“).
For these reasons, Appellant‘s claims that the trial court abused its discretion in overruling his evidentiary objections do not require reversal.
7. Finally, Appellant contends that he was denied effective assistance of counsel due to his trial counsel‘s decision to call the paramedic as a witness; failure to object to Cpl. Jira‘s testimony that criminal activity was frеquent in the neighborhoods where Atkinson was injured and Appellant was apprehended; and failure to retain an expert witness to address proximate cause.11 To establish his claim of ineffectiveness of counsel, Appellant must prove both deficient performance by his trial counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (104 S. Ct. 2052, 80 L. Ed. 2d 674) (1984).
To establish deficient performance, Appellant must show that his attorney‘s acts or omissions were “objectively unreasonable . . . considering all the circumstances and in the light of prevailing professional norms.” Davis v. State, 299 Ga. 180, 182-183 (787 SE2d 221) (2016). The law recognizes a “strong presumption” that counsel performed reasonably, which the defendant bears the burden of overcoming. Strickland, 466 U.S. at 689. To establish the required prejudice, Appellant must show that but for his attorney‘s objectively unreasonable errors, there is a reasonable probability that the result of the proceeding would have been different. See id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. We “need nоt address both components of the inquiry if the defendant makes an insufficient showing on one.” Davis, 299 Ga. at 183. (cleaned up).
(a) Appellant asserts that trial counsel was deficient in calling the paramedic as a witness because her testimony — that Atkinson said he jumped out of the car because people were trying to kill him — corroborated the State‘s theory of the case. At the hearing on the motion for new trial, trial counsel testified that he called the paramedic because her report indicated that Atkinson told her a different version of events than he had told his daughter. He also testified that he tried to interview the paramedic before trial, but she was “hesitant” to talk to him. At trial, trial counsel did not attempt to impeach the paramedic with her report, and the report was not admitted into evidence.
However, assuming that trial counsel was professionally deficient in calling the paramedic to testify, Appellant has failed to demonstrate that there is a reasonable probability that the paramedic‘s tеstimony affected
(b) Cpl. Jira testified that he was frequently called to respond to reports of criminal activity around the accident scene and around the location where Appellant was apprehended. Appellant contends that his trial counsel was professionally deficient in failing to object to this testimony because it was irrelevant and served only to inflame the jury. However, even assuming that the evidence was irrelevant and properly subject to an objection under
(c) Appellant asserts that trial counsel was deficient in failing to utilize an expert witness to counter the testimony of the medical examiner as to the cause of Atkinson‘s death. Trial counsel testified that causation is a difficult issue for a defense attorney given existing case law. He also explained that his strategy was to show that Appellant‘s actions did not cause Atkinson to jump out of the car and that Atkinson instead jumped out of the car due to the intoxicating effects of cocaine and alcohol. Even assuming that trial counsеl was deficient in not retaining a medical expert on proximate cause, Appellant has failed to establish prejudice. At the hearing on the motion for new trial, Appellant did not present the testimony of, or an affidavit from, an expert witness that countered the State‘s medical expert. Accordingly, Appellant has failed to show Strickland prejudice. See Pauldo v. State, 317 Ga. 433, 437 (893 SE2d 633) (2023) (“It is well established that a defendant fails to establish prejudice under Strickland when he merely contends that trial counsel was deficient for failing to present an expert, without also presenting evidence at the motion-for-new-trial hearing about what the potential expert would have testified to at trial.“).
Accordingly, Appellant‘s claims that he was denied effective assistance of counsel fail.12
Judgment affirmed. All the Justices concur.