Smith v. State

FINAL COPY

                  S19A0936. SMITH v. THE STATE.
                 S19A0937. JACKSON v. THE STATE.


      BETHEL, Justice.

      Rodney Tyrone Smith and Javon Tyler Jackson appeal from

the denial of their motions for new trial after a jury found them

guilty of malice murder and other crimes in connection with the

shooting death of Stephanie Smith and the shooting of Rasheeda

Bostic.1 Both Smith and Jackson claim that the State presented


      1 The crimes occurred on August 20, 2016. Smith and Jackson were
indicted jointly by a Chatham County grand jury on February 22, 2017, for
malice murder, felony murder predicated on aggravated assault, aggravated
assault of Stephanie Smith, and aggravated assault of Rasheeda Bostic.
Jackson was also indicted individually for possession of a firearm by a
convicted felon and felony murder predicated on that offense. At a joint jury
trial held in October 2017, Smith and Jackson were each found guilty on all
counts with which they were charged. Jackson was sentenced to serve life in
prison for malice murder, a term of 20 years for the aggravated assault of
Bostic, and a term of five years for possession of a firearm by a convicted felon
(to run concurrently with each other but consecutively to the life sentence).
Smith was sentenced to serve life in prison for malice murder and a consecutive
term of 20 years for the aggravated assault of Bostic. As to both Smith and
Jackson, the convictions for the felony murder of Stephanie Smith were
vacated by operation of law, and the conviction for the aggravated assault of
Stephanie Smith merged with the malice murder conviction.
       Smith filed a motion for new trial on October 27, 2017, which he amended
insufficient evidence to support the jury’s verdicts, that the trial

court erred in admitting recordings of two witnesses’ prior

statements, and that their trial attorneys provided ineffective

assistance. Finding no reversible error, we affirm.

      1. Evidence Presented at Trial.

      Viewed in the light most favorable to the verdicts, the evidence

at trial showed the following. On August 20, 2016, around 8:00 p.m.,

Ebony Washington, Stephanie Smith, Rasheeda Bostic, and Theresa

Goldwire were riding together in Savannah in Washington’s vehicle,

a black SUV. Washington drove the car, Stephanie Smith sat in the

front passenger seat, Bostic sat behind Stephanie Smith, and

Goldwire sat behind Washington. As Washington drove the car

down Jefferson Street past 35th Street, she was having a heated

conversation on the phone.


through new counsel on June 8, 2018. Jackson filed a motion for new trial on
October 27, 2017, which he amended through new counsel on May 23, 2018.
On June 12, 2018, the trial court held a joint hearing on the motions. On
January 30, 2019, the trial court denied Smith’s and Jackson’s amended
motions for new trial in separate orders. Smith and Jackson each filed notices
of appeal on February 11, 2019, and these cases were docketed to the Court’s
April 2019 term. Smith’s case was submitted for a decision on the briefs, and
Jackson’s case was orally argued on June 18, 2019.
                                      2
     Suddenly, as the vehicle neared the intersection of Jefferson

Street and 32nd Street, multiple gunshots were fired at the car.

Bostic had been looking down at her phone when the shots began

and was unable to identify the shooter. However, Bostic recalled

seeing two men running and shooting at the car as Washington

attempted to drive away, and she testified that she was sure more

than one person had fired at the car. When an officer arrived at the

scene, Bostic told the officer, “he shot me on 32nd Street.” Goldwire

did not see the shooters because she was using a tablet and then got

onto the floor of the car when the shooting began.

     The car came to a stop in the middle of the street at the

intersection of Victory Drive and Barnard Street, several blocks

from where the shooting began. Goldwire then called 911.

     The car’s entire rear window was shot out. Stephanie Smith

suffered a gunshot wound to the back of her head and slumped over

in the front passenger seat. Bostic suffered a gunshot wound to her

back, which broke three of her ribs. Bostic survived her injuries, but

Stephanie Smith died four days later. The medical examiner

                                  3
testified that Stephanie Smith’s death was caused by a single

gunshot wound to the head and that the manner of death was

homicide.

     Officers were dispatched to the intersection of Jefferson Street

and 31st Street based on ShotSpotter technology that had been

deployed in that area. ShotSpotter operates through a series of

microphones that alert law enforcement to the presence of gunshots

and triangulate the location of the shots, allowing police to respond

even in the absence of a 911 call. ShotSpotter detected gunshots at

the intersection at approximately 8:07 p.m. on August 20, 2016.

Upon arrival at the scene, law enforcement officers recovered 29

nine-millimeter shell casings from the intersection.

     At 2:25 the next morning, law enforcement officers obtained a

search warrant for a residence located at 302 West 32nd Street,

which was part of a duplex on the corner of 32nd Street and

Jefferson Street. Deonshae Campbell and Dionysha Hearns, who are

sisters, resided at the home with their mother. While searching the

home around 3:30 a.m., officers found a plastic bag with two nine-

                                 4
millimeter semi-automatic handguns: a Ruger P95 and a Glock 17.

The bag containing the guns was submerged in a toilet tank. The

guns were covered in a white, chalky substance law enforcement

believed to be laundry detergent, as its smell and consistency

matched that of laundry detergent found elsewhere in the house.

The presence of this substance rendered the guns inoperable at that

time. However, a GBI firearms expert was able to remove the white

substance from both firearms, perform test shots, and compare the

two firearms with the 29 nine-millimeter shell casings recovered

from the intersection where the shootings occurred. Nine of the

recovered shell casings were matched to the Ruger, and the

remaining 20 were matched to the Glock.

     Campbell and Hearns grew up with Jackson, whom they knew

as “Tyler,” “Light Bright,” and “Bright Eyes,” and Smith, whom they

knew as “NaNa” and “Slim.” Smith and Jackson are brothers. At the

time of the shootings, Smith lived around the corner from Campbell

and Hearns on 33rd Street. In the weeks following the shooting,

Campbell and Hearns were both questioned by police. They told

                                5
police that Smith and Jackson ran into their home after the

shooting, each carrying a gun, and both Campbell and Hearns

identified Smith and Jackson in photographic lineups as those

individuals.

      Campbell and Hearns were both subpoenaed as witnesses by

the State, but they initially refused to appear at trial. The trial court

issued warrants for their arrest, and they were brought to court by

their mother and grandmother.

      Early in Campbell’s appearance at trial, she testified that both

Smith and Jackson ran into the house at 302 West 32nd Street after

the shooting. However, she quickly became uncooperative during

the State’s examination of her, at one point pulling the hood of her

sweatshirt over her head while being questioned about her previous

identification of Smith and Jackson in photographic lineups

presented to her by law enforcement.2 The trial court then


      2 Campbell continued to be uncooperative during other parts of her
testimony and was asked by the trial court, the prosecutor, and Jackson’s
counsel to uncover her face so that the jury could see her. The record reflects
that Campbell repeatedly refused to look at the questioning attorney and that

                                      6
authorized the State to treat Campbell as a hostile witness. When

the prosecutor asked Campbell if she had given any statements to

law enforcement after the shootings, she replied that she did. The

prosecutor then asked, “Think it might refresh your recollection to

see a video recording?” Campbell replied, “I smoked too much weed

to remember anything.” Over the objection of both Smith and

Jackson,3 the State then played several portions of a video recording

of Campbell’s interview with law enforcement. In that interview,

Campbell told the detectives that she was in the house when the

shooting began. She initially stated that she did not know the two

men that were on the street corner when the shooting occurred but

that they were “out there every day.” Campbell stated that when she

saw the men on the corner, they were “sometimes” smoking

marijuana and that they “might be” selling it, though she had never

seen them sell.



she was told several times to raise her head and speak up so that the court
reporter and the jury could hear what she was saying.
      3 The record reflects that the objection made by Smith and Jackson at

that time was limited to an objection under OCGA § 24-4-404 that the
recording included improper character evidence.
                                    7
     In her interview, Campbell said that when the shooting began,

she ran to the door, and, at that time, several people ran into the

house, including two men whom she did not know. The men had

guns in their hands. Campbell stated that she believed the two men

were the shooters because they were “the only dudes on the corner”

and that Smith “live[d] around the corner” in a house on 33rd Street.

She later stated that one of the men had been hanging out on that

corner for “months” selling crack. In the recorded interview with the

detectives, Campbell became emotional and began crying. She asked

for her grandmother, who was outside the room. Her grandmother

and the detectives encouraged Campbell to identify the two men.

After this discussion, Campbell identified the two men who ran into

the house as brothers named “Tyler Jackson” and “Rodney Smith”

(whom she also identified as “Rodney Jackson” and “NaNa”). She

told the detectives that she could identify Smith and Jackson in

photographs. She also added that when Smith and Jackson ran into

the house, she ran out but that they locked Hearns (her sister) in

the house with them.

                                 8
     After the video concluded, Campbell resumed her trial

testimony. In that testimony, she stated that she saw Smith on the

street corner after the shooting occurred.

     Hearns was also called to testify at trial. She refused to identify

Smith and Jackson by their given names, and the trial court

declared her a hostile witness. Her testimony continued, but she

claimed not to recall seeing anything outside the house at 302 West

32nd Street when the shooting occurred. Like Campbell, Hearns

gave an interview to law enforcement that was video recorded. When

Hearns could not recall seeing anything outside the house, the

prosecutor said, “I’d like to refresh the witness’s recollection at this

time, Judge, with her video statement to the police.” At the trial

court’s direction, the State proceeded to play for the jury the

interview Hearns gave to law enforcement. Neither Smith nor

Jackson objected.

     In her recorded interview, Hearns told the detectives that,

after the shooting, several people ran into the house, including

“Tyler” and “NaNa.” She indicated that she could identify both of

                                   9
them in photographs. Hearns stated that she had seen NaNa and

Tyler with guns before and that they had guns in their hands when

they ran in the house. She also told the detectives that “the black

car started shooting at them first” and that NaNa and Tyler were

shooting back at the car from the street.

     Hearns stated that she knew NaNa and Tyler were the

shooters at the street corner because “they already said — was

plotting to do it back once they — because they — NaNa said I got a

feeling they was going to come back.” Hearns indicated that NaNa

and Tyler were plotting about the black car returning to the

neighborhood because some men had fired at them from the car

three weeks before. She stated that NaNa had recently been robbed

by some men and that “he robbed them back.” Hearns indicated that

the shooting incident outside her house was a response to NaNa’s

robbery. Hearns also said that NaNa had said that the person he

robbed had said that when he saw NaNa he was going to kill him.

NaNa also learned that he had a “hit” on him. At the conclusion of

the video, Hearns resumed her live testimony and confirmed that

                                 10
the shooting incident was the culmination of “robbery back and forth

and shooting back and forth.”4 At trial, the State introduced

evidence that Jackson had previously been convicted of theft by

receiving stolen property, a felony offense.

     When viewed in the light most favorable to the verdicts, the

evidence presented at trial and summarized above was sufficient to

authorize a rational jury to find both Smith and Jackson guilty

beyond a reasonable doubt of the crimes of which they were

convicted. See Jackson v. Virginia, 

 (

,

61 LE2d 560) (1979). See also Brown v. State, 

 (1)

(b) (

) (2017) (“It was for the jury to determine the

credibility of the witnesses and to resolve any conflicts or

inconsistencies in the evidence.” (citation and punctuation omitted));

Cowart v. State, 

 (6) (

) (2013)

(explaining that, in determining the sufficiency of the evidence, a

reviewing court “must consider all of the evidence admitted by the



     4  The trial court admitted a disc containing the recordings of the
interviews into evidence as State’s Exhibit 3.
                                  11
trial court, regardless of whether that evidence was admitted

erroneously” (citation and punctuation omitted)).

        2. Playing of Witnesses’ Prior Statements.

        Smith and Jackson argue that the trial court erred by allowing

the State to play the recorded interviews given by Campbell and

Hearns to police detectives. They both argue that the State

improperly      placed   these   recordings   before   the   jury   while

purportedly attempting to refresh the witnesses’ recollection of their

prior statements to police. Jackson also argues that the State did

not provide a proper foundation before playing the recordings.

Finally, Smith and Jackson both argue that certain statements in

the recording of Campbell’s interview impermissibly placed

character evidence before the jury. We address each contention in

turn.

        (a) As neither Smith nor Jackson objected at trial on the basis

that the recordings could not be played for the jury while

purportedly being used to refresh the witnesses’ recollections, we

review their claims only for plain error. See OCGA § 24-1-103 (d).

                                    12
      To show plain error, [Smith and Jackson] must point to
      an error that was not affirmatively waived, the error must
      have been clear and not open to reasonable dispute, the
      error must have affected [their] substantial rights, and
      the error must have seriously affected the fairness,
      integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Tyner v. State, 

(4) (

) (2019).

      OCGA § 24-6-612 (a) (“Rule 612 (a)”) provides:

            If a witness uses a writing to refresh his or her
      memory while testifying, an adverse party shall be
      entitled to have the writing produced at the hearing or
      trial, to inspect it, to cross-examine the witness on such
      writing, and to introduce in evidence those portions of
      such writing which relate to the testimony of the witness.

      Here, pretermitting whether the trial court clearly erred by

permitting the State to play these recordings for the jury while

purportedly offering them to refresh the witnesses’ recollection,5 and

pretermitting whether any such error was affirmatively waived,




      5 Because we pretermit the issue of whether the trial court erred by

allowing the State to play these recordings while purportedly offering them to
refresh the witnesses’ recollections, we do not reach the question in this case
of whether the recordings are a “writing” within the meaning of Rule 612 (a).
                                      13
Smith and Jackson have not shown that their substantial rights

were affected by the admission of the recordings. Given that both

Campbell and Hearns testified at trial that they could not recall

anything about the events surrounding the shooting that took place

outside their house and made other statements that were

inconsistent with what they had previously told the police, their

recorded   interviews   were   admissible   as   prior   inconsistent

statements. See Thompson v. State, 

 (6) (

) (2018) (citing OCGA §§ 24-8-801 (d) (1) (A), 24-6-613 (b)). See

also Brewner v. State, 

 (

) (2017) (“The

failure of a witness to remember making a statement may provide

the foundation for offering extrinsic evidence to prove that the

statement was made.”). Thus, even if Smith and Jackson had

objected to the playing of the recordings on the basis that Rule 612

(a) did not permit them to be played before the jury while

purportedly being used to refresh the witnesses’ recollection, the

State could have readily moved to admit the recordings as prior

inconsistent statements. Accordingly, Smith and Jackson have not

                                14
shown that the alleged error in allowing the recordings to be played

by the State affected their substantial rights — i.e., that it affected

the outcome of the trial. See Davis v. State, 

 (3) (h)

(

) (2019) (no showing of prejudice “because an objection

likely would not have prevented the admission of the testimony”

(citation and punctuation omitted)). This claim of plain error

therefore fails.

     (b) Jackson also argues that the trial court erred by permitting

the recordings to be played for the jury and admitted into evidence

without requiring the State to provide a foundation for such

recordings. Because Jackson did not make this objection at trial, we

review only for plain error.

     OCGA § 24-9-901 (a) (“Rule 901 (a)”) provides that “[t]he

requirement of authentication or identification as a condition

precedent to admissibility shall be satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent

claims.” A party “may authenticate [a] recording by any witness

familiar with the subject depicted on the recording.” State v. Smith,

                                  15


 (1) (

) (2016).

     Here, pretermitting whether the trial court clearly erred by

permitting the State to play these recordings for the jury without

first requiring the State to authenticate them, and pretermitting

whether any such error was affirmatively waived, Jackson has not

shown that his substantial rights were affected by the admission of

the recordings without such prior authentication, as there is no

indication in the record that the State would have been unable to

authenticate the recordings pursuant to Rule 901 (a). First, both

Campbell and Hearns identify themselves by name in their

respective interviews. Second, the police detective who conducted

the interview with Hearns (and otherwise participated in the

investigation) was called to testify at trial on behalf of the State.

Thus, there is no indication that the State would have been unable

to identify the recordings as being of the interviews given by

Campbell and Hearns. Accordingly, “any objection based on lack of

authentication could have been overcome by readily available

evidence.” Brewner, 

 (IV). Jackson has thus not carried

                                 16
his burden of showing that the alleged error in allowing the

recordings to be played by the State without authentication affected

his substantial rights — i.e., that it affected the outcome of the trial.

 This claim of plain error therefore fails.

     (c) Smith and Jackson also argue that the trial court erred by

allowing the State to play the recording of Campbell’s interview6

because it contained evidence that should have been excluded under

OCGA § 24-4-404 (b) (“Rule 404 (b)”). Because Smith and Jackson

objected to the State’s use of this recording on the basis that it

contained improper character evidence (namely, evidence that one

or both of them had been seen on the street corner using and possibly

selling drugs on several prior occasions), we review the trial court’s

admission of the recordings over this objection for abuse of

discretion. Nations v. State, 

 (2) (

)

(2018).




     6 Neither Smith nor Jackson appears to challenge the admission of the

recording of Hearns’ statement on this basis. We therefore have limited our
analysis to their objection to certain statements in Campbell’s recorded
interview.
                                    17
     Pertinent to this case, Rule 404 (b) provides as follows:

          Evidence of other crimes, wrongs, or acts shall not
     be admissible to prove the character of a person in order
     to show action in conformity therewith. It may, however,
     be admissible for other purposes, including, but not
     limited to, proof of motive[.] The prosecution in a criminal
     proceeding shall provide reasonable notice to the defense
     in advance of trial, unless pretrial notice is excused by the
     court upon good cause shown, of the general nature of any
     such evidence it intends to introduce at trial. Notice shall
     not be required when the evidence of prior crimes,
     wrongs, or acts is offered to prove the circumstances
     immediately surrounding the charged crime, motive, or
     prior difficulties between the accused and the alleged
     victim.

     At trial, counsel for Smith and Jackson argued to the trial court

that the State never made any connection between the defendants’

alleged prior acts of using and selling drugs on the street corner, as

recounted in Campbell’s interview, and the shooting incident that is

the subject of this case. Over trial counsels’ objection, the trial court

determined that Campbell’s statements were admissible pursuant

to Rule 404 (b) to show Smith’s and Jackson’s motive in the case.

     Setting aside whether such statements were admissible as

evidence of motive under Rule 404 (b), the statements regarding the


                                   18
alleged sale and use of drugs by Smith and Jackson in Campbell’s

recorded interview were admissible as intrinsic evidence.

     The limitations and prohibition on other acts evidence set
     out in OCGA § 24-4-404 (b) do not apply to intrinsic
     evidence. . . . Evidence is . . . intrinsic . . . when it is (1) an
     uncharged offense arising from 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. . . . [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. . . . [E]vidence of other
     acts is inextricably intertwined with the evidence
     regarding the charged offense if it forms an integral and
     natural part of the witness’s accounts of the
     circumstances surrounding the offenses for which the
     defendant was indicted. And this sort of intrinsic evidence
     remains admissible even if it incidentally places the
     defendant’s character at issue.

(Citations and punctuation omitted.) Williams v. State, 

 (IV) (d) (

) (2017).

     Here, Campbell made a number of statements regarding drug

use and possible drug sales by Smith and Jackson on the street

corner outside the house where she and Hearns lived. These


                                     19
statements explained, in part, how Campbell and Hearns knew

Smith and Jackson and how they were aware of Smith’s and

Jackson’s relationship to the vehicle they fired upon. Moreover,

these statements established Campbell’s and Hearns’ connection to

the shootings and explained, to some extent, how they were able to

identify Smith and Jackson as the shooters. Campbell’s statements

regarding the use and possible sale of drugs by Smith and Jackson

were thus inextricably intertwined with the other evidence

Campbell and Hearns provided regarding the shootings.

     Moreover, the State’s theory of the case, as outlined in its

opening statement and its closing argument, was that the shootings

of Stephanie Smith and Rasheeda Bostic were the culmination of a

series of drug-related robberies back and forth between defendants

Smith and Jackson and persons who had been seen driving Ebony

Washington’s vehicle (which Hearns referred to as “the black car”).

Campbell’s statements that Smith and Jackson had previously been

seen using and (perhaps) selling drugs on the street corner where

the shooting occurred advanced this theory of the case and were

                                20
“necessary to complete the story of the crime for the jury.” (Citation

and punctuation omitted.) McCammon v. State, 

, ___ (2)

(___ SE2d ___) (2019). See also Smith v. State, 

(

) (2017) (holding that portions of the defendant’s

statement to the police that referred to his drug use were properly

admitted as intrinsic evidence because they “formed an integral and

natural part of his account of the circumstances surrounding the

offenses for which he was indicted”); Thompson, 302 Ga. at 543 (III)

(B) (evidence that defendant was a drug dealer admissible to explain

context of crime “even if it incidentally places (the defendant’s)

character at issue.”(citations and punctuation omitted)). Thus,

“[b]ecause the evidence was intrinsic, it was outside the reach of

Rule 404 (b).” Clark v. State, 

 (4) (

)

(2019).

     Intrinsic evidence must also satisfy OCGA § 24-4-403 (“Rule

403”). Williams, 302 Ga. at 485 (IV) (d). Rule 403 provides:

          Relevant evidence may be excluded if its probative
     value is substantially outweighed by the danger of unfair
     prejudice, confusion of the issues, or misleading the jury

                                 21
     or by considerations of undue delay, waste of time, or
     needless presentation of cumulative evidence.

The exclusion of relevant evidence under Rule 403 is an

extraordinary remedy that trial courts should grant only sparingly.

See Hood v. State, 

 (4) (

) (2016). See

also 

 (4) (“The major function of Rule 403 is to exclude

matter of scant or cumulative probative force, dragged in by the

heels for the sake of its prejudicial effect.” (citation and punctuation

omitted)).

     Here, the State had some need for this evidence. The history of

robberies and shootings back and forth between Smith, Jackson, and

persons who had been seen driving the “black car” was established

primarily through Hearns’ recorded interview. But Campbell’s

recorded statements regarding the use and possible sale of drugs on

the street corner by Smith and Jackson gave further context as to

why this series of incidents occurred and why Smith and Jackson

would have been present at the street corner and would have shot

at the car when it returned to the neighborhood. See 

                                  22
Ga. at 543 (III) (B). Moreover, Campbell’s interview established that

their acts of using and possibly selling drugs were ongoing.

Campbell suggested in her interview that Smith and Jackson were

“out there every day” and that one of them had been selling drugs

on the corner for “months.” Thus, evidence that Smith and Jackson

had used and possibly sold drugs on the street corner was connected

in time with the series of incidents leading up to the shootings of

Stephanie Smith and Rasheeda Bostic and was “not so remote as to

be lacking in evidentiary value.” (Citation and punctuation omitted.)

Kirby v. State, 

 (4) (a) (i) (

) (2018).

Thus, in light of the circumstances outlined above, although

Campbell’s statements incidentally placed Smith’s and Jackson’s

character at issue, the probative value of those statements was not

substantially outweighed by the danger of unfair prejudice.

Williams, 

 (IV) (d).

     Because Campbell’s statements were admissible as intrinsic

evidence and because the probative value of such evidence was not

substantially outweighed by the danger of unfair prejudice to Smith

                                 23
and Jackson, the trial court did not abuse its discretion by admitting

Campbell’s statements. This enumeration of error therefore fails.

     3. Claims of Ineffective Assistance of Counsel.

     Smith and Jackson argue that their respective trial attorneys

were ineffective for failing to make certain objections to the State’s

playing of the recorded statements of Hearns and Campbell. Smith

also argues that he received ineffective assistance due to his trial

counsel’s failure to object to certain comments made by the State

during opening statements. To prevail on their claims of

ineffectiveness, Smith and Jackson

     [have] the burden of proving both that the performance of
     [their lawyers] was professionally deficient and that [they
     were] prejudiced as a result. To prove deficient
     performance, [Smith and Jackson] must show that . . .
     trial counsel acted or failed to act in an objectively
     unreasonable way, considering all of the circumstances
     and in light of prevailing professional norms. To prove
     resulting prejudice, [Smith and Jackson] must show a
     reasonable probability that, but for counsel’s deficiency,
     the result of the trial would have been different. In
     examining an ineffectiveness claim, a court need not
     address both components of the inquiry if the defendant
     makes an insufficient showing on one.

(Citations and punctuation omitted.) Stuckey v. State, 

,

                                 24
771 (2) (

) (2017) (citing Strickland v. Washington, 

 (

, 80 LE2d 674) (1984)).

      (a) Smith and Jackson first argue that they received

ineffective assistance due to their attorneys’ failure to object to the

State’s playing of the recorded interviews for the purpose of

refreshing the witnesses’ recollection. Smith also argues that he

received ineffective assistance of counsel because his counsel did not

object to the lack of foundation provided by the State prior to the

recordings being played for the jury. However, for the same reasons

that we concluded that Smith and Jackson could not carry their

burden to show prejudice on plainerror review regarding their

counsels’ failure to object to the admission of the recordings on these

bases, we conclude that they cannot carry their burden to show

prejudice on these ineffectiveness claims. Hampton v. State, 

 (4) (b) (

) (2017). Any objection to the

recordings under Rule 612 (a) and Rule 901 (a) could have been

readily overcome by the State, as discussed above. See Davis, 306

Ga. at 149 (3) (h). Thus, as there is no reasonable probability that

                                  25
the outcome of the trial would have been different had trial counsel

made these objections, these claims of ineffectiveness fail.

     (b) Smith alone also argues that he received ineffective

assistance due to his trial counsel’s failure to object to comments

made by the State during its opening statement regarding what it

expected Smith’s and Jackson’s defense to be. Near the conclusion of

the State’s opening statement, the prosecutor told the jury the

following:

           I suspect the defense, I can’t speak for them, will be
     to put the whole thing on Ebony Washington and say
     along the lines of, we were just defending ourselves when
     we started this — that she started this. Which is to say
     to get back to the prior difficulty and we see the car and
     we’re scared for our lives. I don’t know what the
     argument’s going to be. I suspect, in trying cases with
     [Jackson’s trial counsel] before, that might be what you
     hear.

     At the joint hearing on Smith’s and Jackson’s motions for new

trial, Smith’s trial counsel, an attorney with 22 years of criminal

defense experience, was called to testify. In his testimony about this

portion of the State’s opening statement, he stated that, when the

statement was made, he believed counsel for the State referred

                                 26
specifically to Jackson’s counsel because of their prior experience

with one another in criminal trials. Smith’s trial counsel offered no

strategic reason for not objecting to this statement.

     Assuming that this statement violates the rule we established

in Parker v. State, 

 (

) (2003), to

the effect that “it is inappropriate for a prosecutor in a criminal case

to discuss in opening statement the evidence she anticipates the

defense will present at trial,” 

 (2), and assuming that

Smith’s trial counsel was deficient in failing to object to the

comment, Smith has failed to show he was prejudiced. Smith’s

counsel testified at the hearing on the motions for new trial that he

used the State’s comment to later show, in closing argument, that

Smith was not required to prove anything and that the burden of

proof was solely with the State. Additionally, the jury was instructed

as to the State’s burden of proof and that opening statements are

not evidence. See Kidd v. State, 

 (2) (

)

(2018) (holding that jury instruction that opening statements are

not evidence mitigates harm from improper comment by prosecutor

                                  27
regarding anticipated defense theory); Jackson v. State, 

 (3) (

) (2007) (no prejudice arising from counsel’s

failure to object to State’s comment on anticipated defense theory in

opening statement where trial court instructed jury on the State’s

burden of proof and that opening statements are not evidence);

Parker, 

 (2) (harm from improper prosecutorial

comment in opening statement mitigated by jury instructions). We

presume that the jury follows the trial court’s instructions, see Allen

v. State, 

 (3) (c) (

) (2004), and Smith

has not presented any evidence demonstrating that the jury did not

follow the instructions given in this case. Consequently, he has

failed to show that he was prejudiced by his counsel’s failure to

object to this statement in the State’s opening statement. This claim

of ineffectiveness therefore fails.

     (c) Finally, we consider the cumulative effect of prejudice

resulting from counsels’ allegedly deficient performance. Schofield

v. Holsey, 

 (II) n.1 (

) (2007) (“[I]t is the

prejudice arising from counsel’s errors that is constitutionally

                                      28
relevant, not that each individual error by counsel should be

considered in a vacuum.” (citation and punctuation omitted)). Here,

“the cumulative prejudice from any assumed deficiencies discussed

in Divisions 3 [(a) and (b)] is insufficient to show a reasonable

probability that the results of the proceedings would have been

different in the absence of the alleged deficiencies.” (Citation and

punctuation omitted.) Davis, 306 Ga. at 150 (3) (j). We therefore find

no merit in the claims of ineffective assistance raised by Smith and

Jackson.

     Judgment affirmed. All the Justices concur.




DECIDED OCTOBER 7, 2019 – RECONSIDERATION DENIED NOVEMBER

                                 29
                              4, 2019.
     Murder. Chatham Superior Court. Before Judge Abbot.
     Robert L. Persse, for appellant (case no. S19A0936).
     David T. Lock, for appellant (case no. S19A0937).
     Meg E. Heap, District Attorney, Jennifer L. Parker, Greg
McConnell, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Elizabeth H. Brock, Assistant Attorney General, for appellee.




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