Hill v. State

FINAL COPY

                   S20A0781. HILL v. THE STATE.


     ELLINGTON, Justice.

     After Christina and Marshall Wellington were unable to pay a

drug debt, Otis Hill shot them. Christina died; Marshall survived

but lost an eye. Hill and Aviance Marshall (“Aviance”), who drove

Hill and the Wellingtons to the location of the shooting, were

charged with malice murder, attempted murder, kidnapping, and

related offenses. Hill was convicted of kidnapping and murdering

Christina, kidnapping, battering, and attempting to murder

Marshall, and a weapons charge.1 On appeal, Hill contends that the


     1 The crimes occurred on August 22, 2013. A Fulton County grand jury

returned an indictment on November 22, 2013, charging Hill and Aviance with
malice murder (Count 1), felony murder predicated on the kidnapping and
aggravated assault against Christina (Counts 2 and 3), attempted murder
(Count 4), kidnapping against Christina and Marshall (Counts 5 and 6),
aggravated assault against Christina and Marshall (Counts 7 and 8),
aggravated battery against Marshall (Count 9), and possession of a handgun
during the commission of a felony (Count 10). At a November 2014 jury trial of
Hill alone, he was found guilty on all counts. By judgment entered on
November 26, 2014, the trial court sentenced Hill to life imprisonment without
parole for malice murder and kidnapping (Counts 1, 5, and 6), 30 years in
evidence was insufficient as to kidnapping. In addition, Hill

contends that the trial court erred in using a deficient master jury

list; in failing to determine whether a juror was proficient in

English; in instructing the jury regarding note taking; in admitting

evidence of cell site location information, the effects of cocaine on

memory, and witness intimidation; in excluding evidence of the

maximum penalty Aviance faced; in instructing the jury regarding

the reasonable doubt standard; and in denying his motion for a new

trial on the general grounds. Hill also claims he received ineffective

assistance of counsel. For the reasons explained below, we affirm,

except that we vacate in part to correct sentencing errors.




prison for attempted murder (Count 4), 20 years in prison for aggravated
battery (Count 9), and five years in prison for possession of a handgun during
the commission of a felony (Count 10). The judgment indicated that the felony
murder counts merged with the murder conviction, although they were
actually vacated by operation of law. See Bradley v. State, 

, 858 n.1
(

) (2019). Count 7 merged with Count 1, and Count 8 merged with
Count 9. No sentence was authorized for Counts 8 and 9, and we have corrected
those errors in Division 13, infra. Hill filed a timely motion for a new trial,
which he amended on December 7, 2016, June 21, 2017, December 28, 2017,
and February 21, 2018. After a hearing on April 17, 2018, the trial court denied
Hill’s motion for a new trial on November 2, 2018. Hill filed a timely notice of
appeal, and his appeal was docketed in this Court on January 27, 2020, to the
April 2020 term and submitted for a decision on the briefs.
                                       2
     Viewed in the light most favorable to the jury’s verdicts, the

evidence showed the following. The Wellingtons traveled to Georgia

in August 2013 from their home in North Carolina so that Christina

could obtain medical treatment. The Wellingtons both used cocaine

regularly, and they met Hill and bought drugs from him a few times.

     Early on the afternoon of August 22, the Wellingtons obtained

about $200 worth of cocaine from Hill and consumed it in their room

at the Sunset Lodge hotel near Decatur. Early that evening, Hill and

his companion, Aviance, went to the Wellingtons’ room. Hill

demanded to be paid for the drugs he had provided. The Wellingtons

said that they could get him money the next day, but Hill pressed

them to pay the debt immediately. He pulled a 9mm handgun and

cocked it. At one point, Hill pressed the gun against Marshall’s eye

and repeatedly said that someone was going to die. After consulting

with each other, the Wellingtons proposed that Hill take them out

panhandling. Marshall told Hill that Christina’s panhandling skills

were “great” and she often made $4,000 in a month. Eventually Hill

agreed to the plan. Marshall testified that he and his wife got in the

                                  3
car to go panhandling “not [of their] own will” but only to avoid the

threat of death and that Hill “controlled everything.”

     The foursome left the Sunset Lodge, with Aviance driving.

They went to a large shopping center, and Christina approached

people in front of the Walmart, then at the gas station, and then

near a Checkers restaurant. Christina succeeded in getting $20 or

less, so the plan was abandoned for the evening. Marshall estimated

that it was about 10:30 p.m. at that point.

     Hill told the Wellingtons that he wanted them to go somewhere

with him. After they headed toward Stone Mountain on the

interstate, Hill directed Aviance to take a series of turns and then

to stop when they were on McClure Road, a narrow gravel road off

South Fulton Parkway in Union City, with no lights and no houses.

Aviance stopped the car, and Hill told the Wellingtons to get out

because they were going to walk back to Atlanta. After they walked

a bit back toward the main road, the passenger side door opened,

activating the car’s interior lights, and Marshall saw Hill step out

and raise the gun. The Wellingtons tried to run away, but Marshall

                                  4
was hit in the back and then in the leg. Then Hill shot Christina

several times. Hill went back to the car and opened the door.

Marshall heard the sound of a magazine clip being taken out of a

gun and a clip being put in. Hill walked back to where Marshall was

lying and shot him in the face. Hill got back into the car and left with

Aviance.

     The Wellingtons were discovered the next morning by a county

work crew on McClure Road. Christina had died on the scene, with

multiple gunshot wounds to her head and back. Marshall’s injuries

included a shattered femur and a ruptured eye that could not be

surgically repaired.

     Marshall was taken to Grady Hospital, and the lead

investigator spoke with him briefly before he was taken into surgery.

Marshall told the investigator that he had been shot by “Gagg,”

whom he described as having a tattoo under his eye and wearing a

blue-and-white polo shirt and blue cargo shorts. Marshall said that

“Gagg” had told him that he was from Miami and was 32 years old.

Marshall told the investigator that he had seen “Gagg” as a contact

                                   5
in the Verizon cell phone he shared with his wife, and he gave the

investigator the phone number. He told the investigator that there

was a car involved, which was driven by a woman.

     The investigator obtained the Wellingtons’ phone records and

saw several recent communications with a number having a Miami

area code. The investigator determined that the number was

associated with a Sprint account and learned from Sprint that the

customer for the account was “Gage Hill” and the billing address was

a Miami address. An online investigation tool generated a list of

people possibly associated with the Sprint account’s billing address,

including Hill and Aviance. The officer obtained Hill’s birthdate —

he was 32 years old — and driver’s license photo and Social Security

number. Cell phone location data showed that the phone associated

with the Gage Hill account was within seven miles of the crime scene

shortly after 11:00 p.m. on the night of the crimes.

     The investigator prepared a photographic lineup that included

Hill’s photo and showed it to Marshall, who immediately identified

Hill as the shooter. A detective obtained an arrest warrant for Hill.

                                  6
In a second photographic lineup, Marshall identified Aviance as the

woman who drove the car that night.

     Aviance testified against Hill as follows. Aviance had an on-

and-off relationship with Hill since high school, Hill’s nickname was

Gage, and they had a young child together. He had a tattoo of her

nickname, “Sunkist,” on his face. When Hill was not with her, he

lived with Ashley Williams. On the day of the crimes, Aviance asked

Hill to repay her money he had borrowed, because she needed to give

her mother money for rent. Hill said he would collect money he was

owed for drugs. He called Christina, who said she was trying to get

money from her mother or her sister, who were out of state. Hill was

upset at getting “the runaround.” Aviance drove Hill in her mother’s

silver Jetta to the Wellingtons’ hotel, after stopping to drop off their

son at a friend’s apartment. Hill pointed a gun at Marshall’s eye and

said, “y’all need to get the money like now.” The Wellingtons offered

to panhandle and convinced Hill by telling him that Christina had

made a lot of money like that before, she was good at it, and

“basically that’s how they lived.” After the panhandling effort was

                                   7
unsuccessful, Hill had Aviance drive on the interstate and exit at

South Fulton Parkway. She knew that Williams lived off of South

Fulton Parkway, so she assumed Hill wanted to be dropped off at

Williams’s house. Hill instead directed her in taking a few turns

until they got to a dark gravel road that was bordered only by trees.

Hill told the Wellingtons to get out, that they were going to walk

back. Aviance started driving back toward the main road when Hill

told her to stop. He got out of the car, and she saw his arm come up

and heard about ten gunshots. Hill walked back to the car and got

something out of the door pocket. Aviance heard another shot, then

Hill got back in the car and told her to go.

     Williams testified as follows. In August 2013, after five years

of dating on and off, she and Hill, whose nickname was Gage, were

engaged and living together. Hill used the Miami phone number,

and they called and exchanged text messages frequently. When

Williams got home from work on August 27, she was met by a SWAT

team with an arrest warrant for Hill. Williams consented to them

going into her house, and they found Hill hiding in a closet and

                                   8
arrested him. Officers found a blue-and-white polo shirt and blue

cargo shorts on the floor in the bathroom. The next day, Williams

found an empty magazine for a 9mm handgun under a Miami

Dolphins beach towel in the closet of the bedroom she shared with

Hill; she called investigators, who collected the gun magazine.

     The lead investigator testified about a statement Hill gave

after waiving his right to remain silent. Hill told the investigator

that he had sold about $300 worth of crack cocaine to Christina and

that he had gone to collect that money because he needed it to help

Aviance pay for her rent. He said that he picked up the Wellingtons

at the hotel and drove them around to a Walmart and some gas

stations to panhandle. Hill said that the Wellingtons only managed

to get about $15 panhandling. Hill said the reason they ended up in

Union City is because he was going to make them walk back to

Atlanta to teach them a lesson. He admitted that he made Aviance

drive to Union City, and he told the investigator to leave her out of

it because she had “nothing to do with it.” Hill denied having a gun

and said that he had “been drinking all day” and was drunk, adding,

                                  9
“I don’t remember killing anybody. I don’t remember shooting

anybody.”

     1. (a) Hill does not challenge the sufficiency of the evidence

presented at his trial as to malice murder (Count 1), attempted

murder (Count 4), aggravated battery (Count 9), and possession of a

handgun     during    the   commission      of   a   felony    (Count    10).

Nevertheless, as has been our customary practice in murder cases,

we have independently reviewed the record and conclude that the

evidence was legally sufficient to authorize a rational trier of fact to

find beyond a reasonable doubt that Hill was guilty of these crimes.

See Jackson v. Virginia, 

 (III) (B) (

, 61

LE2d 560) (1979).2

     (b) Hill contends that the evidence showed that the

Wellingtons willingly went with him and Aviance to go panhandling,

that they never asked to be let go, and that they became afraid for


     2 We remind litigants that the Court will end its practice of considering

sufficiency sua sponte in non-death penalty cases with cases docketed to the
term of court that begins in December 2020. See Davenport v. State, 

, __ (4) (

) (2020). The Court began assigning cases to the
December Term on August 3, 2020.
                                     10
the first time when he told them to get out of the car just before the

shooting. Hill argues that there was no evidence that they were

abducted or held against their will and that, as a result, the evidence

was insufficient to authorize convictions for kidnapping (Counts 5

and 6).

     OCGA § 16-5-40 (a) provides: “A person commits the offense of

kidnapping when such person abducts or steals away another

person without lawful authority or warrant and holds such other

person against his or her will.” The record shows that Hill came into

the Wellingtons’ motel room, demanded money, threatened their

lives, and cocked a handgun and pressed it against Marshall’s eye.

Marshall testified that he and his wife went with Hill to go

panhandling against their will and only to avoid being killed by Hill.

The evidence was sufficient for a rational trier of fact to find Hill

guilty of kidnapping. See Jackson, 

 (III) (B); Smith

v. State, 

 (1) (b) (

) (2008); Smith

v. State, 

 (5) (

) (2001).

     2. Hill contends that, at the time of his trial in November 2014,

                                  11
Fulton County’s method of removing jurors from the county master

jury list violated the Jury Composition Rule, specifically by

removing jurors based on legacy data or based on undeliverable

mail, which disproportionately affects minority and lower-income

jurors. Hill argues that, as a result, the jury pool did not represent

a fair cross-section of the community, and he was thereby deprived

of his right to due process of the law.

     In Ricks v. State, 

 (5) (

)

(2017), this Court considered a pretrial challenge to Fulton County’s

master jury list, which the defendant claimed had been produced in

a manner that violated the Jury Composition Rule that this Court

adopted to effectuate the Jury Composition Reform Act of 2011,

OCGA § 15-12-1 et seq. We held that the list from which Fulton

County jurors were being summoned, including the period from July

2014 to June 2015, was produced in a manner that violated the Rule.

We remanded the case with direction that the trial court ensure that

the prospective jurors for the defendant’s trial be drawn from a list

produced and managed in a manner that complied with OCGA § 15-

                                  12
12-40.1 and with the Jury Composition Rule. See Ricks, 

 (5), (6). We noted that the defendant’s motion “was

prospective in nature, in that it sought a pretrial order addressing

the composition of the venire for his trial jury,” and we did not

address a question that was not then before us — “whether such

defects actually would be deemed reversible or prejudicial error on

appeal from a conviction.” 

 (5) n.22.

     Hill challenged the master jury list for the first time in his

third amended motion for a new trial. The procedure in Georgia,

however, “has long required a criminal defendant to raise a

challenge to the jury lists at the time the jury is ‘put upon him’ or

else he waives his right to object.” Young v. State, 

(

) (1974) (citation omitted). Neither the Jury

Composition Reform Act of 2011 nor the Jury Composition Rule

relaxed that requirement. By waiting until after conviction to

challenge the composition of the jury list, Hill waived any such

challenge. See McDonald v. State, 

 (4) (

)

(2015) (Because the defendant made no challenge to the composition

                                  13
of the jury array at trial, he waived any objection on appeal.); see

also Shotwell Mfg. Co. v. United States, 

 (IV) (

, 9 LE2d 357) (1963) (A challenge to the method of selecting

the petit jury panel on the basis that selection method failed to

secure a fair cross-section of the population is waived when not made

before trial.).

     3. Hill contends that the trial court erred in preventing him

from examining a prospective juror and in failing itself to question

the juror to determine if the juror was qualified to serve in light of

his self-declared language barrier. If this Court determines that the

error was not preserved, Hill contends that the trial court committed

plain error and that his trial counsel was constitutionally ineffective

for failing to preserve the error for review.

     (a) Waiver of disqualification. The record shows that, during

questions propounded by the trial court during voir dire, a

prospective juror who was ultimately seated on the jury indicated

that he had a hardship with serving on the jury. He stated, “I’m

worried about the language, you know, some things I don’t

                                  14
understand.” The court asked the juror whether he had taken the

citizenship exam, and the juror replied that he had. Noting that the

citizenship exam is given in English, the court moved on to

questioning other jurors about their hardships. Later during voir

dire, defense counsel attempted to follow up with the juror’s

potential “language issues.” The court instructed counsel, “Don’t ask

that. Move on from there.” Defense counsel did not object at that

point or raise the purported language barrier again. Defense counsel

did not move to strike the juror for cause or use a peremptory strike

to remove him, nor did she object to the jury selected.

     Because Hill did not make a request to strike the juror for

cause, the issue was waived for ordinary appellate review. See Veal

v. State, 

 (2) (

) (2017); see also

Passmore v. State, 

 (5) (

) (2001)

(Where the defendant failed to challenge a prospective juror for

cause at trial, he did not preserve any issue as to the juror’s

disqualification.). And plain error review is not available for this

issue because such review is

                                 15
     limited to the sentencing phase of a trial resulting in the
     death penalty, a trial judge’s expression of opinion in
     violation of OCGA § 17-8-57, and a jury charge affecting
     substantial rights of the parties as provided under OCGA
     § 17-8-58 (b), [and, f]or cases tried after January 1, 2013,
     with regard to rulings on evidence, a court is allowed to
     consider plain errors affecting substantial rights although
     such errors were not brought to the attention of the court.
     OCGA § 24-1-103 (d).

Keller v. State, 

 (2) (a) (

) (2020)

(citations and punctuation omitted). This Court will not extend plain

error analysis to other claims of error in the absence of a specific

provision by the General Assembly. 

     (b) Ineffective assistance of counsel. To establish ineffective

assistance of counsel, a defendant must show that his trial counsel’s

performance was professionally deficient and that, but for such

deficient performance, there is a reasonable probability that the

result of the trial would have been different. See Strickland v.

Washington, 

 (III) (B) (

, 80 LE2d 674)

(1984). If Hill fails to show either deficiency or prejudice, this Court

need not examine the other prong of the Strickland test. See

DeLoach v. State, 

 (2) (

) (2020). “In

                                  16
reviewing a ruling on a claim of ineffective assistance of counsel, we

defer to the trial court’s findings of fact unless they are clearly

erroneous, but we apply the law to the facts de novo.” State v.

Spratlin, 

 (2) (

) (2019) (citation

omitted).

     At the hearing on Hill’s motion for a new trial, his trial counsel

testified that she did not object because the trial judge indicated that

he did not believe the juror was telling the truth about having

trouble understanding English but was just trying to get out of jury

duty. Counsel testified that, after observing the juror’s demeanor

and his ability to respond to the questions during voir dire, she also

had the impression that the juror had been trying to get out of jury

duty. Whether to strike a prospective juror who indicates a limited

ability to understand legal proceedings in English is within the

broad discretion of the trial court in qualifying a jury. See Dockery

v. State, 

 (2) (

) (2010); see also Collins

v. State, 

 (3) (

) (2020) (“Whether to

strike a juror for cause lies within the sound discretion of the trial

                                  17
judge, and the trial court’s exercise of that discretion will not be set

aside absent a manifest abuse of discretion.” (citation and

punctuation omitted)). Under the circumstances presented here,

counsel reasonably believed that trying to have the juror removed

for cause would be futile. And “[t]he failure to make a meritless

motion or objection does not provide a basis upon which to find

ineffective assistance of counsel.” White v. State, 

(3) (c) (

) (2020) (citation and punctuation omitted).

These arguments present no basis for reversal.

      4. Hill contends that his counsel was ineffective in failing to

object to the court’s instruction that the jurors could consider each

other’s notes. He argues that the evidence was insufficient to

support the kidnapping charges and therefore the jury’s

unanimous guilty verdicts show that it is likely that jurors

influenced each other by relying on each other’s notes after being

instructed to do so by the court.

      Hill’s characterization of the court’s instructions is not

supported by the record. Before trial, the court provided the jurors

                                    18
with notepads and pencils and instructed the jurors that they were

allowed, but not required, to take notes. The court instructed the

jurors from the pattern jury instructions:3

           The notes you take are for your use only and are not
     to be shared with anyone until you begin deliberation
     with your fellow jurors. . . . It is the duty of each juror to
     recall the evidence. And while you may consider another
     juror’s notes to refresh your memory, you should rely on
     your own recollection of the proceedings. Do not be
     influenced by the notes of other jurors unless their notes
     help you in determining your own independent
     recollection. Notes are not entitled to any greater weight
     than the recollection or impression of each juror as to
     what the evidence may have been.

Viewing the instructions as a whole, the trial court did not instruct

the jurors to rely on each other’s notes. Given that the instruction

was not improper in the way claimed by Hill, he has not shown

that counsel’s performance in not objecting to it was deficient. See

Bridges v. State, 

 (2) (

) (2010).

     5. Hill contends that the trial court erred in admitting the cell

site location data which was obtained without a warrant and in the


     3 Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 0.01.00

(4th ed. 2007, updated January 2020).

                                     19
absence of exigent circumstances.4

      Assuming without deciding that the trial court abused its

discretion in admitting the challenged evidence,5 any error was

harmless and does not require reversal. When the admission of

evidence is an “error of constitutional magnitude, it can be harmless

error if the State can prove beyond a reasonable doubt that the error

did not contribute to the verdict, such as when the evidence at issue

is cumulative of other properly-admitted evidence or when the

evidence against the defendant is overwhelming.” McCord v. State,

 (2) (a) (

) (2019) (citation and

punctuation omitted). Here, the cell site location data was




      4 See Carpenter v. United States, __ U. S. __, __ n.3 (

, 201

LE2d 507) (2018) (Generally the Fourth Amendment requires a warrant for
the government to access an individual’s cell site location information, at least
where the government’s request is for seven or more days of data. Warrantless
searches of cell site records are authorized under circumstances when the
exigencies of the situation make the needs of law enforcement sufficiently
compelling that a warrantless search is objectively reasonable, including the
need to protect individuals who are threatened with imminent harm.).
      5 At the time of Hill’s 2014 trial, controlling precedent held that a search

warrant was not required to obtain cell site location data. See Reed v. State,

 (2) (b) (

) (2019); Walker v. State, 

 (2) (a) (

) (2019); see also Smarr v. State, 

 (3) (c) (

) (2012).
                                       20
cumulative of properly admitted evidence that placed Hill at the

murder scene, including the testimony of the surviving victim, the

testimony of Hill’s accomplice, and Hill’s own admitted pretrial

statement, and the evidence of his guilt was overwhelming. The

State carried its burden of showing that any error in admitting the

evidence did not contribute to the verdict. See id.; Mullins v. State,

 (2) (

) (1988).

     6. Hill contends that his trial counsel was ineffective in failing

to ask for a curative instruction or mistrial after testimony that he

contends was irrelevant and improper evidence of bad character that

“painted [him] as someone who participated in a life-style that

involved knowing how to cover up finger-prints.”

      On direct examination, Marshall described what happened in

the hotel room before he and his wife left with Hill and Aviance to

go panhandling. He testified that Hill came in the room, demanded

to know where his money was, and pulled out a handgun. Marshall

testified that he told Hill that they would try to repay, but Hill

“wasn’t really caring” and “kept saying somebody’s going to die.” The

                                  21
prosecutor asked what Aviance was doing at that point. Marshall

testified:

           She was over there on the chair because I remember
     [Hill] taking our phone, and she was wiping down
     everything that he basically touched. . . . She wiped the
     cell phone down. She was wiping all the table. I don’t care
     where he put stuff, like she was wiping everything like
     they done this thing before.

Defense counsel objected and moved to strike the testimony as

speculative. The trial court sustained the objection and instructed

the jury to disregard the response. At the hearing on Hill’s motion

for a new trial, trial counsel testified that she thought the court’s

instruction sufficiently cured any negative implication and that she

did not need to request an additional curative instruction or move

for a mistrial.

      “Whether to grant a motion for mistrial is within the trial

court’s sound discretion, and the trial court’s exercise of that

discretion will not be disturbed on appeal unless a mistrial is

essential to preserve the defendant’s right to a fair trial.” Billings v.

State, 

 (7) (

) (2013) (citation and


                                   22
punctuation omitted). Given these circumstances, Hill has not

carried his burden of showing that defense counsel performed

deficiently. Counsel objected to the testimony, and the trial court

sustained the objection and gave an appropriate curative

instruction. “Qualified jurors under oath are presumed to follow the

instructions of the trial court.” Morris v. State, 

 (4)

(

) (2020) (citation and punctuation omitted). Moreover,

Hill has not shown that, under these circumstances, a mistrial

would have been granted had counsel requested one. Because the

trial court would have acted within its discretion in denying a

motion for mistrial, the failure of Hill’s trial counsel “to make a

motion that the court was authorized to deny does not establish

ineffective assistance by that counsel.” Billings, 

 (7).

See also Allen v. State, 

 (3) (a) (

)

(2004).

     7. Hill contends that the trial court erred in refusing to permit

his counsel to explore the potential penalties that Aviance avoided

in exchange for her guilty plea.

                                   23
      On direct, Aviance testified that she had entered a guilty plea

to one count of false imprisonment and had received a sentence of

ten years in prison with the possibility of parole. On cross-

examination of Aviance, defense counsel questioned her about her

plea deal. Counsel asked if Aviance was aware that malice murder

and felony murder carry life imprisonment, with or without parole,

or death. The trial court called counsel to the bench. The conference

was not transcribed, but, at the motion for new trial hearing, counsel

testified that the judge would not allow her to go through the

penalties for each charge because Hill faced the same charges, such

that Aviance’s testimony would also improperly put Hill’s possible

punishment before the jury.6 After the bench conference, counsel

questioned Aviance about each of the charges she faced, without



      6 In Georgia, trial courts, not juries, have sentencing responsibility “in

all felony cases in which the death penalty [is] not sought.” Foster v. State, 

 (2) (b) (

) (2019) (citation omitted). For this reason,
jurors in non-capital cases are routinely instructed that they are only
concerned with the guilt or innocence of the defendant and they are not to
concern themselves with punishment, and evidence regarding the defendant’s
potential sentence is not relevant. See id.; see also Quintana v. State, 

 (4) (

) (2003); Suggested Pattern Jury Instructions, Vol.
II: Criminal Cases, § 1.70.20 (4th ed. 2007, updated January 2020).
                                       24
referring any further to maximum sentences. Counsel then asked

Aviance about her motives for accepting the plea deal, and she

testified that she did not want to be in prison for the rest of her life

and wanted to be able to get out of prison so she could get back to

her children.

     “[E]ven if no charges were pending against a witness when he

was interviewed or testified, a defendant must be allowed to cross-

examine a witness about punishment that the witness may have

avoided as a result of a deal with the State for his testimony in the

prosecution of the defendant.” Williams v. State, 

(2) (

) (2013). “It is clear that the trial court abuses its

discretion and commits error when it cuts off all inquiry on a subject

on which the defense is entitled to reasonable cross-examination.”

Manley v. State, 

 (2) (

) (2010) (citation

and punctuation omitted). See also State v. Vogleson, 

 (1) (

) (2002) (It is an abuse of discretion to prevent

defense counsel from questioning “a witness who is testifying for the

State in exchange for a reduction in prison time about the witness’s

                                  25
belief concerning the amount of prison time [she] is avoiding by

testifying against the defendant.”). Even so, “trial courts retain wide

latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Manley, 

 (2).

     In this case, the trial court did not cut off all inquiry on the

subject of the punishment Aviance may have avoided as a result of

her deal with the State: on cross-examination she acknowledged

that she had faced a potential sentence of life in prison, with or

without parole, or death and that, pursuant to her deal with the

State, she received a sentence of ten years with the possibility of

parole. And defense counsel explored Aviance’s incentive to

cooperate with the State to minimize her separation from her

children. We conclude that the trial court did not abuse its broad

discretion in controlling cross-examination when it prevented Hill

from eliciting the maximum sentence allowed for the charges

                                  26
against Aviance other than murder. See Watkins v. State, 

 (3) (

) (2003).

      8. (a) Hill contends that the trial court erred in admitting his

statement that a witness would not testify, which, he argues,

intimated that he was involved in witness intimidation. He argues

that the prejudicial impact of the statement substantially

outweighed its probative value and, therefore, that the statement

should have been excluded under OCGA § 24-4-403 (‘‘Rule 403’’).7

      Williams, Hill’s fiancée, testified that Hill had a conversation

with her “about individuals appearing at court.” The prosecutor

asked her to elaborate, and Williams began, “When the original date

was set for —” Defense counsel objected, and the trial court

sustained the objection. The prosecutor asked, “Without talking


      7 Rule 403 provides that “[r]elevant 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 or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” See also
OCGA §§ 24-4-401 (“relevant evidence” is “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”); 24-4-402 (“[a]ll relevant evidence shall be admissible, except as
limited by constitutional requirements or as otherwise provided by law or by
other rules . . .”).
                                      27
about the specifics of any hearings, what was told to you by the

defendant about someone appearing?” Defense counsel objected on

the basis of relevance, since Hill was not charged with witness

intimidation. The court overruled the objection, finding that the

testimony went “to knowledge” and was more probative than

prejudicial. Williams then testified, “[Hill] told me that he — he

never mentioned his name, but he said that the witness was not

going to show up at court.”

     It is not necessary to consider whether the admission of this

statement was error because, pretermitting whether the statement

was inadmissible character evidence, we conclude that any error in

admitting it was harmless. “A nonconstitutional error is harmless if

it is highly probable that the error did not contribute to the verdict.”

Davenport v. State, 

, __ (2) (

) (2020) (citation

and punctuation omitted). See also OCGA § 24-1-103 (a) (“Error

shall not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected[.]”). In

determining whether an alleged evidentiary error was harmless,

                                  28
“we review the record de novo and weigh the evidence as we would

expect reasonable jurors to have done so.” Clarke v. State, 

 (2) (

) (2020) (citation and punctuation

omitted). Here, given the strength of the evidence of Hill’s guilt, we

conclude that it is highly probable that the outcome of the trial

would have been no different had the glancing reference to Hill

saying some unnamed witness was not going to appear at trial been

excluded. See 

 Moreover, we have considered the cumulative

effect of this presumed error along with the evidentiary error

assumed in Division 5 and conclude that the combined prejudicial

effect of the assumed evidentiary errors did not deprive Hill of his

right to a fundamentally fair trial. See Lofton v. State, 

,

367 (7) (

) (2020); State v. Lane, 

 (1)

(

) (2020).

      (b) Hill also contends that his trial counsel was ineffective in

failing to object and move for mistrial after Williams testified that

he said a witness was not going to appear. Immediately before

Williams testified about the statement, Hill’s counsel objected to

                                  29
the evidence, and the trial court considered its relevance and

prejudicial impact and decided to admit it. A redundant motion for

a mistrial would have been fruitless and was not required to

preserve his objection for appeal. Consequently, counsel’s failure

to move for a mistrial did not constitute deficient performance. See

Fleming v. State, 

 (5) (e) (

) (2019).

      9. Hill contends that his trial counsel was ineffective in

failing to object to the testimony of a forensic toxicologist on the

basis that she was not qualified to testify regarding the effects of

cocaine on a user’s memory. He argues that he was prejudiced by

the toxicologist’s testimony, because the testimony bolstered the

testimony of Marshall, who had consumed a quantity of cocaine

before the shooting that injured him and killed his wife.

     The record shows that, when the State asked the toxicologist

about the effect of ingesting cocaine on a person’s ability to recall

events, the toxicologist testified that an inability to recall events is

not common but that high doses of cocaine can cause hallucinations

so that the person perceives and recalls an altered reality, instead

                                  30
of what is actually there. At the motion for new trial hearing, Hill

did not question trial counsel about her decision not to object to the

toxicologist’s testimony. Without trial counsel’s testimony or some

other evidence explaining the basis for her decisions, Hill cannot

overcome the presumption that those decisions were strategic and,

thus, cannot establish that counsel was ineffective. See Leanos v.

State, 

 (2) (c) (iv) (

) (2018); Mitchell v.

State, 

 (3) (

) (2018). Indeed, during

closing argument, Hill’s counsel used the testimony about drug-

induced hallucinations as part of her argument that Marshall lacked

credibility because of his drug use on the day of his wife’s murder.

     10. Hill contends that his trial counsel was ineffective in failing

to object to the State’s closing argument, which, he argues, “crossed

the line” and amounted to personal and unprofessional attacks on

defense counsel.

     “Whether to object to a particular part of a prosecutor’s closing

argument is a tactical decision, and counsel’s decision not to make

an objection must be patently unreasonable to rise to the level of

                                  31
deficient performance.” Smith v. State, 

 (2) (b)

(

) (2015) (citations and punctuation omitted). See also

State v. Goff, 

 (1) (

) (2020) (“Strategic

choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable. Accordingly, a

tactical decision will not form the basis for an ineffective assistance

of counsel claim unless it was so patently unreasonable that no

competent attorney would have chosen it.” (citation and punctuation

omitted)). We have held, for example, that it can be a reasonable

strategy for defense counsel to remain silent during closing

argument and “allow the potentially inappropriate antics of the

prosecutor to backfire against” the State. Smith v. State, 

 (10) (b) (

) (2010). At the hearing on Hill’s

motion for a new trial, his trial counsel testified that the prosecutor

was taking “a very aggressive position” and that defense counsel

strategically opted not to object because she “wanted to be on the

opposite side” of the State’s aggressiveness, “to keep the jury liking

[the defense].” Having reviewed the State’s closing arguments in the

                                  32
context of Hill’s trial, we cannot say that counsel’s decision to refrain

from objecting in order to present a less aggressive tone to the jury

was a strategy no reasonable lawyer would have chosen.

Consequently, Hill’s ineffectiveness claim fails. See London v. State,

 (3) (

) (2020); Walker v. State, 

 (3) (d) (

) (2020); Jackson v. State, 

 (5) (c) (

) (2019).

      11. (a) Hill contends that the trial court committed plain error

in instructing the jury regarding the level of proof required for

conviction.8 Specifically, he argues that a statement in the court’s

preliminary instruction that “the object of this trial is to discover the

truth,” and a statement in the court’s final instruction that “[a]

reasonable doubt is the doubt of a fair-minded, impartial juror,

honestly seeking the truth[,]” allowed the jury to convict him based

on a preponderance of the evidence standard, rather than on the


      8 See OCGA § 17-8-58 (b); English v. State, 

 (2) (

) (2017) (“[U]nder OCGA § 17-8-58 (b), appellate review for plain error
is required whenever an appealing party properly asserts an error in jury
instructions[ after failing to object at trial].” (citation and punctuation
omitted)).
                                      33
correct reasonable doubt standard. Hill did not object to these

instructions at trial.

     To show plain error, the appellant must demonstrate that
     the instructional error was not affirmatively waived, was
     obvious beyond reasonable dispute, likely affected the
     outcome of the proceedings, and seriously affected the
     fairness, integrity, or public reputation of judicial
     proceedings. Satisfying all four prongs of this standard is
     difficult, as it should be.

Clarke, 

 (5) (citation and punctuation omitted). The

Court need not analyze all of the elements of the plain error test

when the appellant fails to establish one of them. See State v.

Herrera-Bustamante, 

 (2) (b) (

) (2018).

“An error is plain if it is clear or obvious under current law. An error

cannot be plain where there is no controlling authority on point.” 

(citation and punctuation omitted).

     The two instructional fragments at issue are embedded in the

pattern preliminary instructions and in the pattern instruction on

the presumption of innocence, burden of proof, and reasonable

doubt, respectively, which correctly emphasize the State’s heavy



                                  34
burden of proof.9 The reasonable doubt instructions have been

upheld by this Court.10 Hill cites no controlling authority for the

proposition that the instructions are erroneous because they briefly

refer to discovering or seeking the truth. Consequently, he cannot

show that giving the instructions constituted clear or obvious error.

See Herrera-Bustamante, 

 (2) (b); Williams v. State,

 (3) (

) (2018).

      (b) Hill contends that his trial counsel was ineffective in

failing to object to the instructions that referred to discovering or

seeking the truth, again arguing that the instructions allowed the

jury to convict him based on a preponderance of the evidence

standard, rather than on the correct reasonable doubt standard.

      The objection Hill proposes would have advanced a novel

theory under Georgia law. See Division 11 (a), supra. A criminal

defense attorney does not perform deficiently, however, in failing


      9 Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases,

§§ 0.01.00 and 1.20.10 (4th ed. 2051, updated January 2020)
      10 See Rucker v. State, 

 (3) (

) (1999); see

also Anderson v. State, 

 (5) (

) (2009) (urging trial
courts “to hew closely to the pattern instruction on reasonable doubt”).
                                     35
to advance a novel legal theory. See Sawyer v. State, 

 (2) (a) (

) (2020); Esprit v. State, 

(2) (c) (

) (2019). Hill has not shown he received

ineffective assistance of counsel.

         12. Hill contends that the trial court abused its discretion in

denying his motion for a new trial on the general grounds, because

the judge who heard the motion, who had not presided over his trial,

did not review the entire trial record but only read portions of the

transcript selected by the attorneys. Hill argues that his case should

be remanded so that the trial court can exercise its discretion as the

“thirteenth juror” by considering whether to grant a new trial based

on a review of the entire record. Because the record shows that Hill

forfeited his request for such review, however, this claim of error

fails.

         The record shows that, after the successor judge convened the

hearing on Hill’s motion for a new trial, Hill called his sole witness,

his trial counsel. Hill’s post-conviction counsel and the prosecutor

examined trial counsel, referring her to specific pages of the trial

                                    36
transcript and asking about her reasons for objecting, or not

objecting, to particular jury instructions, items of evidence, and

argument. The successor judge then called for argument and pointed

out that the parties had not provided to him the parts of the

transcript that were referenced during examination of trial counsel.

Hill’s post-conviction counsel stated that, until the morning of the

hearing, she expected the trial judge to hear the motion, and she

offered to provide the successor judge with a full copy of the trial

transcript. The judge stated that, due to the time constraints of his

appointment as a senior judge, he did not anticipate reading the

whole transcript and that he wanted to review the excerpts

referenced during the hearing. Post-conviction counsel did not object

to a ruling on the motion for a new trial that was not based on a

review of the entire record, ask for a continuance, or ask that the

original trial judge be assigned to hear the motion. Instead, counsel

stated that, after the judge heard argument, she would work with

the prosecutor to make copies of the portions of the transcript that

the attorneys deemed “relevant” to Hill’s motion.

                                 37
      As to the general grounds for a new trial, Hill’s post-conviction

counsel argued that, “especially with regards to the kidnapping

charge[s,]” the jury’s verdicts were contrary to the evidence and the

principles of justice and equity and decidedly and strongly against

the weight of the evidence, such that the judge could exercise his

discretion as the thirteenth juror and grant a new trial.11

Specifically, she argued that Marshall’s testimony established that

he and Christina willingly went with Hill, including to the location

of the shooting, so there was no evidence of the asportation element

of kidnapping. After a recess, the judge reconvened the hearing that

afternoon to announce his decision. Again, Hill’s post-conviction



      11 A trial court may grant a new trial “[i]n any case when the verdict of

a jury is found contrary to evidence and the principles of justice and equity[,]”
OCGA § 5-5-20, or “where the verdict may be decidedly and strongly against
the weight of the evidence even though there may appear to be some slight
evidence in favor of the finding.” OCGA § 5-5-21.
      When properly raised in a timely motion, these grounds for a new
      trial — commonly known as the “general grounds” — require the
      trial judge to exercise a broad discretion to sit as a “thirteenth
      juror.” In exercising that discretion, the trial judge must consider
      some of the things that [he] cannot when assessing the legal
      sufficiency of the evidence, including any conflicts in the evidence,
      the credibility of witnesses, and the weight of the evidence.
Wilkerson v. State, 

 (

) (2019) (citation and
punctuation omitted).
                                       38
counsel did not object to a ruling that was not based on a review of

the entire record. The judge stated that he had reviewed the excerpts

from the transcript that he had asked for, announced his decision to

deny Hill’s motion, and directed the State to prepare an order.

     The day after the hearing, Hill filed an objection to the State’s

proposed order on the basis that it mischaracterized the judge’s

analysis of trial counsel’s testimony with regard to his claims of

ineffective assistance of counsel. Hill did not object, however, on the

basis that the judge had not reviewed the entire transcript. Six

months later, with a final ruling still pending, Hill filed an amended

objection to the State’s proposed order and attached an alternative

proposed order. Hill’s proposed order stated that, in his motion for a

new trial, Hill challenged “the sufficiency of the evidence,” but the

proposed order did not mention the general grounds or reference

OCGA §§ 5-5-20 and 5-5-21. The proposed order then stated that

Hill’s trial counsel had testified at the hearing and, “[a]fter

considering the arguments of counsel and based upon the record,”

the motion for a new trial was denied on each and every ground. The

                                  39
successor judge signed Hill’s proposed order.

     Given the circumstances presented here, we need not decide

whether, as Hill contends, the successor judge, by ruling on Hill’s

motion for a new trial without first reviewing the entire trial

transcript, erred in failing to exercise the discretion committed to

the trial court under OCGA §§ 5-5-20 and 5-5-21. See Holmes v.

State, 

 (2) (

) (2019) (vacating order

denying motion for new trial on the general grounds and remanding

to the trial court because the record showed that the trial court

failed to reweigh the evidence as the “thirteenth juror,” as required

under OCGA §§ 5-5-20 and 5-5-21). When Hill’s post-conviction

counsel argued at the hearing that the successor judge should grant

a new trial on the general grounds, she knew that the judge planned

to review only those portions of the trial transcript that counsel for

the parties deemed relevant to resolving the motion for a new trial.

And the proposed order counsel prepared for the court omitted the

general grounds from the list of Hill’s claims and from the court’s

ruling, and it indicated a sufficient review of the record. Through

                                 40
these actions, Hill, through his counsel, waived any complaint that

the judge failed to conduct a full general-grounds review of all of the

evidence under OCGA §§ 5-5-20 and 5-5-21. See Willis v. Bozeman,

 (5) (

) (1968) (where defendant

abandoned general grounds of a motion for new trial, appellate court

would not address general grounds). See also Vincent v. State, 

 (3) (

) (2005) (claim of error

abandoned at hearing on defendant’s motion for a new trial was not

preserved for review on appeal); Powell v. State, 

 (3) (

) (1999) (where defendant did not object at

resentencing hearing to trial court’s plan to resentence him on only

one of three cases against him that were resolved in a single plea

agreement, defendant waived any claim that trial court erred in

letting stand sentences in the other two cases); Noble v. State, 

 (

) (1996) (where defendant did

not object to substitution of judges before sentencing, he waived

right to imposition of sentence by trial judge). Because Hill has

abandoned this claim of error, he is not entitled to have the case

                                  41
remanded for general-grounds review.12

      13. Although Hill does not raise the issue on appeal, we have

identified two merger errors in his sentencing. Count 4 charged Hill

with attempted murder by aiming a gun at Marshall’s head and

firing a bullet that struck his head, with intent to cause his death.

Count 8 charged Hill with aggravated assault against Marshall by

shooting him with a handgun. Count 9 charged Hill with aggravated

battery by rendering Marshall’s eye useless by shooting him with a

handgun. Because there was no evidence that Hill committed

aggravated assault in the manner alleged independent of the act

which was intended to cause Marshall’s death, the count of

aggravated assault merged with the conviction for attempted

murder for sentencing purposes. See Miller v. State, 

, __

(3) (

) (2020) (When there is “no evidence to suggest the

occurrence of an aggravated assault independent of the act which


      12 Although Hill failed to preserve his argument that the trial court erred

in failing to review the entire trial transcript, we do not endorse the principle
that a judge who did not preside over a trial can exercise his discretion as the
thirteenth juror under OCGA §§ 5-5-20 and 5-5-21 without considering all of
the evidence the 12 jurors saw and heard at trial.
                                       42
caused the victim’s death,” a jury’s guilty verdict on the aggravated

assault merges as a matter of fact with the malice murder verdict

for sentencing purposes. (citation and punctuation omitted)); Kelley

v. State, 

 (1) (

) (1991) (An

aggravated assault conviction merged into a criminal attempt to

commit murder conviction where both counts were based on

allegations that the defendant stabbed the victim with a knife.).

Likewise, because there was no evidence that Hill committed

aggravated battery in the manner alleged independent of the act

which was intended to cause Marshall’s death, the count of

aggravated battery merged with the conviction for attempted

murder for sentencing purposes. See Priester v. State, 

 (3) (

) (2020) (Aggravated battery conviction

“merges into the greater offense of attempted murder when the

crimes are predicated upon the same conduct.”). Accordingly, we

vacate Hill’s convictions and sentences for aggravated assault and

aggravated battery against Marshall (Counts 8 and 9).

     Judgment affirmed in part and vacated in part. All the Justices

                                 43
concur, except Warren, J., not participating.




                     Decided October 19, 2020.

     Murder. Fulton Superior Court. Before Judge Brantley,
Senior Judge.
     Law Firm of Shein & Brandenburg, Marcia G. Shein, Leigh S.
Schrope, for appellant.
     Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,
Aslean Z. Eaglin, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, for
appellee.




                                 44