Rawls v. State

FINAL COPY

                   S20A0872. RAWLS v. THE STATE.


      NAHMIAS, Presiding Justice.

      Appellant Donnel Rawls was convicted of malice murder and

feticide in connection with the killing of his pregnant girlfriend,

Amber Beckwith. Appellant argues that his convictions were not

supported by the evidence presented at his trial, that hearsay

evidence of his prior abuse of Beckwith was improperly admitted,

that the jury was improperly instructed on flight, and that his trial

counsel provided ineffective assistance in several ways. We see no

reversible error, so we affirm.1


      1 The crimes occurred on February 3, 2015. In February 2016, a Clayton

County grand jury indicted Appellant for malice murder, two counts of felony
murder (based on burglary and aggravated assault), burglary, two counts of
aggravated assault, three counts of aggravated battery, and feticide. Appellant
was tried from October 17 to 20, 2016. After the State presented its case, the
trial court directed a verdict of not guilty on the counts of burglary and felony
murder based on burglary. The jury convicted Appellant of the remaining
counts, and the court sentenced him to serve two consecutive terms of life in
prison without parole for malice murder and feticide. The remaining felony
murder count was vacated by operation of law, and the aggravated assault
counts merged into the malice murder conviction. Although the court originally
      1. The evidence presented at Appellant’s trial showed the

following.2 In the summer of 2014, Appellant and Beckwith began

dating. In September or October of that year, Beckwith moved from

Florida to Forest Park, Georgia, to live with Appellant in the house

he was renting. Beckwith started a tax preparation business with

her close friend and former co-worker Deborah Jones Lawrence, and

Appellant sometimes worked for the business. Soon after Beckwith

moved to Georgia, her relationship with Appellant began to

deteriorate. They often argued because Appellant wanted Beckwith

to give him more money. Beckwith told her close friends and family

about several instances when Appellant physically abused her,

including slapping her, pulling out her hair, pulling her to the


sentenced Appellant for each of the three aggravated battery counts, the court
later vacated those sentences and merged those counts into the malice murder
conviction. Appellant filed a timely motion for new trial, which he amended
with new counsel in November 2017. After an evidentiary hearing, the court
denied the motion in August 2018. Appellant then filed a timely notice of
appeal, and the case was docketed to the April 2020 term of this Court and
submitted for a decision on the briefs.
       2 Because this case requires an assessment of the harmful or prejudicial

effect of certain alleged trial court errors and deficiencies of trial counsel, we
lay out the evidence in detail and not only in the light most favorable to the
verdicts.

                                        2
ground, punching her, and choking her.3 Around the beginning of

November, Beckwith became pregnant. She was excited to have a

baby, but Appellant was not, and he urged her to have an abortion.

Beckwith often stayed with Lawrence after she and Appellant had

argued. In the time period leading up to Beckwith’s murder on

February 3, 2015, she was staying with Lawrence three to four times

a week, including on the night before the murder. Appellant was

scheduled to be evicted from his house on February 4.

     On the morning of February 3, Beckwith argued with

Appellant over the phone because he had used her debit card. She

then changed her debit card passcode as well as the password for

the tax business’s financial information. That afternoon, Appellant

came to the business office and asked Beckwith for the password;

she refused to give it to him. That evening, Appellant talked to a

friend about Appellant’s imminent eviction. After the friend refused

Appellant’s request to move in with him, Appellant offered him a



     3 As discussed in Division 3 below, Appellant objected to some of the

testimony describing this abuse as inadmissible and prejudicial hearsay.
                                      3
couch and other furniture, saying, “Where I am going, I won’t need

any furniture anyway.” Appellant also said that he did not want

Beckwith to have the baby. Appellant’s friend said that it was too

late for an abortion, but Appellant “just kept saying, she is not

having my baby.”

     At around 7:45 p.m., Beckwith and Lawrence left their

business office. Beckwith told Lawrence that she was going to

Appellant’s house “because [he] wanted to talk to her about the baby

and that he was going to leave.” Appellant was still at the office

when Beckwith left, doing some work for his cousin, Melissa

Anthony. Anthony testified that when Appellant was finished, he

asked her to follow him to his house because his vehicle tags were

expired. She did and saw him enter his neighborhood; then she drove

home. Around 9:00 p.m., shortly after Anthony had left Appellant,

he called her and said that he was going to come by her apartment

later.

     Also around 9:00 p.m., Beckwith’s good friend Nekia Barnes

called her, and they talked for 15 or 20 minutes. Beckwith told

                                 4
Barnes that she was at the house waiting for Appellant so they could

“discuss the baby and what things would be moving forward”

because Beckwith was “done” and going to stay with Lawrence. Near

the end of the call, Barnes heard Beckwith say “hey, Donnel,” and

Appellant respond, “hey, what’s up.” Beckwith then ended the

conversation, saying that she was going to talk to Appellant and

would call Barnes in the morning.

      About 45 minutes later, Appellant arrived at Anthony’s

apartment. His pants had blood on them, and his left hand, which is

his dominant hand, was swollen. Appellant did not answer when

Anthony asked him what happened. She then asked directly if

Appellant had killed Beckwith, and he “looked at her strange, but

he didn’t answer.” Before he left, he hugged Anthony and said, “this

is probably the last time you’re going to see me,” which is something

that he often would say to Anthony, but then he added, “no, I’m for

real.”4


      4 Appellant’s ex-wife, Rasheeda Rawls, testified that Anthony called her

about a week after Beckwith’s death and gave her this account. Anthony

                                      5
      Around 5:00 the next morning, Appellant was driving in Ocala,

Florida, when his SUV’s tire blew out. He contacted his friend Corey

Battey, who lived in Ocala, and Battey picked up Appellant. Battey

later told the police that they went to a Walmart, where he bought

Appellant ointment for his left hand, which was covered with

napkins or paper towels. Battey also picked up a MoneyGram for

Appellant and pawned Appellant’s computer. Appellant claimed

that he could not get the MoneyGram or pawn his computer himself

because his identification card had expired. Battey then had

someone from his friend’s towing company tow Appellant’s SUV.

Appellant left the SUV with the towing company, explaining that

because the vehicle was not drivable, he could not do what he was

planning to do in Florida and wanted to go to Texas instead. Battey

bought Appellant a bus ticket to Texas. The SUV was later searched,

and dress pants and dress shoes were found inside. The pants and

one of the shoes had blood on them, which contained DNA from


claimed at trial that she did not see blood on Appellant’s pants or that his hand
was swollen and that she did not talk to Appellant when he came to her
apartment.
                                       6
Beckwith and Appellant.

     Later the same morning back in Georgia, a deputy with the

Clayton County Sheriff’s Department and a maintenance employee

of the property owner arrived at Appellant’s house to evict him. The

front and back doors were locked, and there were no signs of forced

entry. When there was no response to the deputy’s knocks on the

door, he used the property owner’s key to enter. As he walked

through the house, he did not see any signs of struggle. He then

found Beckwith lying face-down on top of a lamp on the floor in the

master bedroom. Her head and neck were bloody; blood was pooled

around her body; and there were blood stains elsewhere in the room

that were consistent with her being struck repeatedly by a person

standing behind or above her. There were also blood stains on the

floor in the living room and hallway and on the door and the lock on

the door leading to the carport; these blood stains contained

Appellant’s DNA.

     Beckwith suffered nearly 40 injuries “in her head area,”

including multiple skull fractures, a fractured jawbone, and

                                 7
bleeding in her brain, all caused by blunt force trauma. Her hyoid

bone was broken and her neck was dislocated, indicating that she

also had been strangled. The medical examiner testified that the

bleeding in her brain and the dislocation of her neck were equally

likely to have caused her death. The medical examiner confirmed

that Beckwith was 12 to 15 weeks pregnant at the time of her death

and the unborn child also died. Appellant did not testify at trial.

     2.   Appellant   argues    that   this   evidence,   which   was

circumstantial, did not exclude the hypothesis that he was already

on his way to Florida when Beckwith was killed. See OCGA § 24-14-

6 (“To warrant a conviction on circumstantial evidence, the proved

facts shall not only be consistent with the hypothesis of guilt, but

shall exclude every other reasonable hypothesis save that of the

guilt of the accused.”). However, the evidence — including testimony

about Appellant’s animosity toward Beckwith and the pregnancy,

Barnes’s testimony that she heard Appellant arrive at the house

where Beckwith was on the night of the murder, his appearance and

behavior when he went to Anthony’s apartment less than an hour

                                  8
later, Beckwith’s blood on the pants and shoe found in Appellant’s

SUV, his blood in the house, the lack of signs of a forced entry, and

his sudden nighttime departure from Georgia — was easily

sufficient for the jury to reject as unreasonable the hypothesis that

Beckwith was killed by an unknown intruder after Appellant left for

Florida. See Smith v. State, 

 (

) (2020)

(“Whether an alternative hypothesis raised by the defendant is

‘reasonable’ is a question committed principally to the jury.”

(citation and punctuation omitted)).

     Appellant also argues that the evidence was insufficient to

support his convictions as a matter of constitutional due process

under Jackson v. Virginia, 

 (

, 61 LE2d

560) (1979). But when properly viewed in the light most favorable to

the verdicts, the evidence summarized above was easily sufficient

for a rational jury to find Appellant guilty beyond a reasonable doubt

of the crimes of which he was convicted. See 

 See also Vega v.

State, 

 (

) (2009) (“‘It was for the jury to

determine the credibility of the witnesses and to resolve any

                                  9
conflicts or inconsistencies in the evidence.’” (citation omitted)).

      3. Appellant next contends that the trial court erred by

admitting the testimony about his prior abuse of Beckwith given by

four witnesses — Barnes, Katrina Ramos, Melody Paschal, and

Anthony — because that evidence was inadmissible under OCGA §§

24-8-807 (“Rule 807”) and 24-4-403 (“Rule 403”).5 At trial, Appellant

objected only to certain testimony from Barnes and Ramos and only

based on Rule 807. The trial court overruled those objections, and

we review those rulings for an abuse of discretion. See Miller v.

State, 

 (

) (2018).6 Because Appellant did

not object to Barnes’s or Ramos’s prior difficulties testimony based

on Rule 403 and did not object to Paschal’s or Anthony’s prior


      5 Appellant also complains about alleged prior difficulties testimony
given by his ex-wife Rawls, but is not clear what testimony he believes was
objectionable. He does not point to any specific testimony, and it does not
appear that Rawls gave any testimony about Appellant’s prior difficulties with
Beckwith. Thus, we need not consider this contention any further. See Jacobs
v. State, 

 (

) (2019) (“[I]t is not this Court’s
responsibility to cull the record to find support for a defendant’s claims.”).
      6 Although Appellant did not object every time Barnes or Ramos testified

about the prior difficulties, we will, for ease of analysis, assume that
Appellant’s objections were sufficient to preserve for ordinary abuse of
discretion review his Rule 807 claims as to these two witnesses, because as
discussed below he has failed to show any error with respect to their testimony.
                                      10
difficulties testimony at all, we review those claims only for plain

error. See Smart v. State, 

 (

) (2016).

To establish plain error, Appellant must show a “clear or obvious

error” that he did not affirmatively waive and that affected his

substantial rights, meaning that it probably affected the outcome of

the trial. 

. If those three requirements are met, we may

remedy the error if it “‘seriously affect(s) the fairness, integrity or

public reputation of judicial proceedings.’” 

 (citation omitted).

     (a) Rule 807 says, in pertinent part:

           A statement not specifically covered by any law but
     having equivalent circumstantial guarantees of
     trustworthiness shall not be excluded by the hearsay rule,
     if the court determines that:
                (1) The statement is offered as evidence of a
     material fact;
                (2) The statement is more probative on the
     point for which it is offered than any other evidence which
     the proponent can procure through reasonable efforts;
     and
                (3) The general purposes of the rules of
     evidence and the interests of justice will best be served by
     admission of the statement into evidence.

This exception applies “only when certain exceptional guarantees of

trustworthiness exist and when high degrees of probativeness and

                                  11
necessity are present.” Smart, 

 (citation and

punctuation omitted). Statements admissible under Rule 807 are

“‘considered sufficiently trustworthy not because of the credibility of

the witness reporting them in court, but because of the

circumstances under which they were originally made.’” 

 at 421-

422 (citation omitted). Appellant argues that the State has not

shown that the prior difficulties testimony of the four witnesses had

sufficient guarantees of trustworthiness or that the testimony met

the requirements listed in paragraphs (1) and (2) of Rule 807.

     (i) Barnes, Ramos, and Paschal testified that that they had

close relationships with Beckwith. Barnes had been “best friends”

with Beckwith for 12 years before her death, and they talked on the

phone three to four times a day. Ramos was Beckwith’s cousin, and

Beckwith was like a “little sister” to her; they often confided in each

other, especially about relationships. Paschal was Beckwith’s sister

and had a “great” and “close” relationship with her. Each woman

testified that Beckwith had talked about her relationship with

Appellant, including describing certain incidents when Appellant

                                  12
had been physically violent toward her.

     Beckwith told Barnes about an incident in September or

October of 2014 when Appellant hit her in the face and about three

incidents in the month before the murder, during which Appellant

pulled her down by her hair, hit her head on a sidewalk, and hit her

and pulled her to the ground in their living room. Beckwith also told

Barnes that Appellant repeatedly locked her out of the house.

Beckwith told Ramos about two other incidents of violence — when

Appellant slapped her and shoved her on the bed, and when

Appellant punched her on the shoulder. Ramos also testified more

generally that Beckwith had told her “four or five different times”

that Appellant hit her. Paschal testified generally about Appellant’s

violence, explaining that Beckwith said that Appellant thought he

could “put his hands” on her at any time and that he “dragged her

by her hair, pulled her hair out, beat her up, [and] slammed her head

on the cement.”

     Beckwith’s close relationship with each of these witnesses gave

her statements to them about the abuse she was experiencing from

                                 13
her boyfriend sufficient guarantees of trustworthiness to be

admissible under Rule 807. See, e.g., Jacobs v. State, 

 (

) (2018) (“[T]he trial court did not abuse its

discretion in determining that the statements from [the victim] to

her friends . . . describing the nature of her abusive relationship with

[the appellant] prior to her death had the requisite ‘exceptional

guarantees of trustworthiness’ to be admissible at trial pursuant to

Rule 807.”); Smart, 

 (“We cannot say that statements

from a wife to her friends or family, . . . which describe acts of

domestic violence, do not, in fact, bear an increased level of

trustworthiness.”).

     This testimony about Appellant’s prior violent acts against

Beckwith also met the requirements in paragraphs (1) and (2) of

Rule 807. The testimony was material as evidence of “the nature of

the relationship between [Appellant] and the victim [that] sheds

light on [Appellant]’s motive in committing the offense[s] charged.”

Flowers v. State, 

 (

) (2020). See also

Smart, 

 (“[The] testimony was relevant to help the

                                  14
jury understand why Appellant might have used violence against

[the victim].”). And Appellant has not shown that there was other

evidence that the State could have procured with reasonable efforts

that would have been more probative to show Appellant’s prior

abuse of Beckwith than the testimony of her close confidants. See

Smart, 

 (“[I]n light of the often-secretive nature of

domestic violence, we can also envision that such statements [to the

victim’s friends and family] might be highly probative.”). Thus, it

was not an abuse of discretion for the trial court to admit Barnes’s

and Ramos’s testimony under Rule 807, nor was it a clear or obvious

error for the court to admit Paschal’s testimony.

     (ii) Anthony’s testimony is a somewhat closer question, because

there was no evidence that she had a particularly close relationship

with Beckwith. As mentioned above, Anthony is Appellant’s cousin.

She testified that on Thanksgiving Day in 2014, she saw Beckwith

with bruises on her arm and leg, and Beckwith explained that she

and Appellant had just had a fight during which she threw a bottle

at Appellant and he pushed her into a door.

                                 15
     We need not decide whether it was clear or obvious error for

the trial court to admit Anthony’s testimony under Rule 807,

because Appellant has not shown that this testimony likely affected

the outcome of his trial. We note first that Anthony’s testimony

about seeing bruises on Beckwith was not hearsay. See Davenport

v. State, 

 (

) (2020). Beckwith’s

attribution of the bruises to a fight with Appellant was hearsay, but

the jury would likely have inferred that cause in any event given the

other testimony about Appellant’s abuse of Beckwith that was

properly admitted under Rule 807. See Davenport, 

(holding that it was harmless to admit under Rule 807 a DFCS

caseworker’s testimony about the appellant’s prior abuse of the

victim that was cumulative of properly admitted testimony from the

victim’s family and other witnesses).

     Moreover, the overall evidence against Appellant was very

strong. Appellant believed that Beckwith was not giving him enough

money and was unhappy with her pregnancy. He was with Beckwith

at their house around 9:00 on the night she was murdered, and there

                                 16
is no evidence that anyone else was there that night. When Anthony

saw Appellant around 9:45 p.m., his hand was injured, his pants

were bloody, and he declined to answer when asked directly if he

had killed Beckwith. Appellant’s blood was found in the house, and

his and Beckwith’s blood was found on pants and a shoe in the SUV

that he drove to Florida in the middle of the night. In light of this

evidence, Appellant has not shown that Anthony’s testimony about

one more physical fight between Appellant and Beckwith probably

affected the outcome of the trial.

     (b) Rule 403 says:

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

As discussed above, evidence of Appellant’s prior abuse of Beckwith

was probative to show the nature of their relationship and his

possible motive for killing his pregnant girlfriend. See Flowers, 

 (“The evidence did not show merely that the appellant

had engaged in a prior act of domestic violence, but, instead, it

                                     17
showed the nature of the relationship between the appellant and

[the victim] and his motive in shooting her.”). Determining that the

probative value of the prior difficulties testimony was not

substantially outweighed by its prejudicial impact would not be an

obvious error. See 

     Appellant also argues that the testimony from these four

witnesses should have been excluded under Rule 403 because it was

needlessly cumulative. It is true that Beckwith’s close friend and

business partner Lawrence also testified about Appellant’s abuse of

Beckwith, describing four specific incidents, one of which was also

discussed by Barnes.7 The two witnesses gave somewhat different

accounts of that incident, however, with Lawrence testifying that

Appellant choked Beckwith and Barnes testifying that Appellant hit

Beckwith in the face. Although a total of five witnesses testified

about Appellant’s abuse of Beckwith, three of these witnesses

(Barnes, Anthony, and Lawrence) also gave important testimony



     7 Appellant makes no argument that Lawrence’s testimony was
inadmissible under Rule 807.
                                18
about the night of the murder; Appellant’s prior acts of abuse were

by no means the focus of the trial. Compare Strong v. State, 

 (

) (2020). Most of the prior acts testimony

from each of the five witnesses discussed different incidents, and

where there was an overlap, the witnesses gave different accounts.

Thus, determining that the prior acts testimony from Barnes,

Ramos, Paschal, and Anthony was not needlessly cumulative would

not be an obvious error. See Naples v. State, 

 (

) (2020) (holding that the testimony of several witnesses

about the appellant’s prior abuse of his children was not a “needless

presentation of cumulative evidence,” explaining that “[t]he

testimony about those two children described mostly different

incidents, and while there may have been some overlap, we do not

believe this evidence was so ‘needlessly cumulative’ as to warrant

its exclusion under Rule 403” (punctuation omitted)).

     For these reasons, Appellant’s challenges to the admission of

the prior difficulties evidence all fail.

     4. At the State’s request, the trial court instructed the jury that

                                    19
it could consider evidence of Appellant’s “alleged flight” as

circumstantial evidence of his guilt.8 Appellant objected to this

instruction during the charge conference on the ground that an

instruction on flight is improper under Renner v. State, 

 (

) (1990), but he did not renew his objection to the

instruction after the jury was charged. On appeal, he claims that the

flight instruction was improper and that the instruction given was

confusing. Because Appellant did not properly preserve either claim,

we review them only for plain error, applying the same standard

discussed in Division 3 above. See OCGA § 17-8-58 (b); Collins v.

State, 

 (

) (2020) (“[A]n objection made

at the charge conference does not by itself preserve an objection to



     8 The trial court gave the following instruction:

     Evidence of alleged flight has been introduced. The flight of a
     Defendant is governed by the rules concerning circumstantial
     evidence you have already been given. If you find from the evidence
     beyond any reasonable doubt that the Defendant fled, and that his
     flight was for the purpose of avoiding arrest for the charge in the
     indictment as opposed to some other reason, you may take this fact
     into consideration in determining the Defendant’s guilt or
     innocence. Furthermore, you may consider it, if you find it more
     likely than not that the Defendant actually committed such act,
     and that the reason was to evade the charge now on trial.
                                      20
an instruction as subsequently given[.]”).

     (a) Renner held that it would henceforth be error for a trial

court to instruct the jury on flight because the instruction

     “serves no real purpose, as it is a particularization of the
     general charge on circumstantial evidence, and as the
     state is free to use circumstantial evidence of flight to
     argue the defendant’s guilt. . . . Moreover, the charge
     inevitably carries with it the potential of being
     interpreted by the jury as an intimation of opinion by the
     court that there is evidence of flight and that the
     circumstances of flight imply the guilt of the defendant;
     this is especially true since the trial court does not give
     specific charges on other circumstances from which guilt
     or innocence may be inferred.”

 (citation and punctuation omitted).9 The State argues

that this holding is no longer good law under the current Evidence

Code, because an instruction on flight has been allowed in federal

courts.10



     9 Renner did not apply its holding to the case before the Court, but rather

announced that the holding would apply to “cases tried after the date on which
this opinion appears in the advance sheets of the Georgia Reports, 

(January 10, 1991).” 

 n.2. We do not address this aspect of
Renner.
      10 The State has made this argument before. See Burlison v. State, 

, 344 (

) (2019) (pretermitting whether Renner’s
holding still applied in light of the new Evidence Code because the flight
instruction was harmless).
                                      21
     We have explained many times that we look to federal case law

for guidance when a provision of Georgia’s current Evidence Code

mirrors a federal rule of evidence. See, e.g., Jacobs, 

.

But Renner’s holding was about jury instructions, not about the

admission or exclusion of evidence. See Gates v. State, 

 (

) (2016) (explaining that Georgia’s Evidence Code

deals with rulings that admit or exclude evidence). Renner did not

reject instructions on flight because evidence of a defendant’s flight

was inadmissible under the old Evidence Code; to the contrary,

Renner explained that evidence of flight may be admissible as

circumstantial evidence of guilt, see 

, which

remains true under the current Evidence Code, see State v. Orr, 

 (

) (2019). Thus, there is no reason to

conclude that the current Evidence Code abrogated Renner’s holding

on a jury instruction issue.

     As for the persuasiveness of the federal case law approving jury

instructions on flight, such authority existed before Renner was

decided, see, e.g., United States v. Borders, 693 F2d 1318, 1327-1328

                                 22
(11th Cir. 1982), and the State identifies nothing about that case law

that would make it more persuasive than it was when this Court

decided Renner. Accordingly, the trial court committed a clear and

obvious error by instructing the jury on flight in disregard of

Renner.11

      Nevertheless, Appellant has not shown that the flight

instruction that the trial court gave likely affected the outcome of

his trial. Under Renner and the current Evidence Code, the jury was

entitled to find that there was evidence that Appellant fled to avoid

arrest after he killed his girlfriend, as there was evidence that, after

showing up with bloody pants and a swollen hand at his cousin

Anthony’s apartment, he told her that she would never see him

again, drove to Florida in the wee hours of the night, and then


      11 The State notes that the following comment was added at some point

to the pattern instruction on flight: “[W]ith the advent of new rules, authority
from the 11th Circuit and other published legal authority suggest that
[Renner’s holding that it is error to charge on flight] MAY no longer be the
[law].” Council of Superior Court Judges of Georgia, Suggested Pattern Jury
Instructions, Vol. II: Criminal Cases § 1.36.10 (4th ed. 2007, updated January
2020). This comment, which does not explain why unidentified “new rules” or
federal authority would impact Georgia precedent about jury instructions, was
not a proper basis for the trial court to disregard a clear precedent of this Court.

                                        23
obtained a bus ticket to Texas after his SUV broke down.12 Renner

also makes clear that the State was free to argue this flight evidence

as circumstantial evidence of Appellant’s guilt. See 

.

      And although Renner expressed concern that a flight

instruction might be construed by the jury as an improper comment

on the evidence under OCGA § 17-8-57, the instruction given in this

case stated that evidence of “alleged flight” had been “introduced”

and could be considered as circumstantial evidence of Appellant’s

guilt, under the instructions concerning circumstantial evidence in

general, if the jury found that he committed acts of flight and that

his purpose was to avoid arrest. There is no reason to believe that

this particular instruction caused the jury to give undue weight to

the flight evidence, particularly given the other strong evidence

against Appellant. See, e.g., Howard v. State, 

 (

) (2019) (holding that although a jury instruction on

spoliation should not have been given in a criminal case, it was



      12 Appellant’s argument that there was no evidence of flight to support

an instruction therefore fails.
                                     24
harmless); Burlison v. State, 

, 344 (

)

(2019) (holding that an assumed Renner error was harmless in light

of the strength of the evidence).

     (b) Appellant also argues that the flight instruction referenced

conflicting standards of proof, and it is true that the instruction

indicated that the jury should apply both a “beyond any reasonable

doubt” and a “more likely than not” standard in deciding whether

Appellant fled to avoid arrest. However, in the final jury charge, the

jury was instructed several times about the State’s burden to prove

Appellant’s guilt of the charged offenses “beyond a reasonable

doubt.” Considering the jury instructions as a whole, the court’s

isolated reference to the preponderance standard in an instruction

about one minor type of evidence did not “‘clearly mislead or confuse

the jury’” as to the State’s burden of proof as to Appellant’s guilt.

Delacruz v. State, 

 (

) (2006) (citation

omitted) (holding that the trial court’s isolated misstatement, “if you

do not believe from the entire evidence that the defendant is guilty

beyond a reasonable doubt, you may convict,” was not reversible

                                    25
error given the jury charges as a whole (punctuation omitted;

emphasis in original)). Thus, Appellant has failed to show a likely

effect on the outcome of his trial.

     5. Appellant contends that his trial counsel provided ineffective

assistance in several ways. To prove these claims, Appellant must

show “that his counsel’s performance was professionally deficient

and that such deficient performance resulted in prejudice.” Brewner

v. State, 

 (

) (2017). See also Strickland v.

Washington, 

 (

, 80 LE2d 674) (1984).

To prove deficient performance, Appellant must show that his

counsel performed in an objectively unreasonable way considering

all the circumstances and in the light of prevailing professional

norms. See Brewner, 

. To prove prejudice, Appellant

must show a reasonable probability that, in the absence of his

counsel’s deficient performance, the result of the trial would have

been different. See 

 If Appellant fails to establish either deficient

performance or prejudice, this Court is not required to examine the

other. See 

     (a) Appellant argues first that his trial counsel was ineffective

with respect to the testimony about prior difficulties between

Appellant and Beckwith because counsel did not request a limiting

instruction at the time the testimony was introduced and did not

seek to limit the number of prior difficulties witnesses.

     In the final jury charge, the trial court instructed:

          Evidence of prior difficulties between the Defendant
     and the alleged victim has been admitted for the sole
     purpose of illustrating, if it does, the state of feeling
     between the Defendant and the alleged victim. Whether
     this evidence illustrates such matters is a matter solely
     for you, the jury, to determine. But, you are not to
     consider such evidence for any other purpose.

There is no requirement that a limiting instruction be given at the

time evidence of prior difficulties is introduced, nor has Appellant

shown that if the jury had been given this limiting instruction

earlier in the trial, the result would have been different. See

Brewner, 

. Thus, Appellant has established neither

deficient performance by his trial counsel nor prejudice to his case.

     Similarly, there is no established limit on the number of prior

difficulties witnesses that may testify. See, e.g., Naples, 

53 (holding that it was not error to admit testimony from six

witnesses about the appellant’s abuse of his children); Smart, 

 (holding that it was not plain error for the trial court

to admit hearsay about prior difficulties from two witnesses,

Facebook messages, text messages, and letters written by the

victim). To the extent Appellant is arguing that his trial counsel

should have objected to the prior difficulties evidence on the ground

that it was needlessly cumulative, that objection would have failed

for the reasons discussed in Division 3 (b) above. Appellant has

therefore failed to show that an effort to limit the number of prior-

difficulties witnesses would have been successful, and “the failure to

raise a meritless motion or objection is not ineffective assistance of

counsel.” Moore v. State, 

 (

) (2013).

     (b) Next, Appellant contends that his trial counsel performed

deficiently by failing to file a motion to suppress the evidence found

during the search of his SUV. As discussed above, on February 4,

2015, the day after the murder, Appellant left his SUV with a towing

company in Ocala and obtained a bus ticket to Texas. Eight days

                                  28
later, on February 12, Appellant’s friend Battey contacted the Ocala

Police Department and told them about his interaction with

Appellant. The Ocala police had the SUV taken to their secure

evidence bay, and they contacted the Forest Park police. Two days

later, on February 14, officers from the Forest Park police obtained

a search warrant for the SUV, and the vehicle was searched the

same day.

     Appellant argues that the evidence obtained from the search

was subject to suppression because “more than ten days had passed

[between] the date of the issuance of the search warrant and its

execution, thereby rendering the search warrant stale.”13 The

factual premise of this argument is incorrect. The record shows that

the search was actually executed on the same day the warrant was

issued, and the search warrant was issued and executed only two

days after the Ocala police took possession of the SUV and notified


     13 Appellant also says that the search warrant evidence was subject to

suppression because the SUV “was taken by the police from the designated
intermediary before a warrant was obtained.” Appellant, however, offers no
argument or citation to case authority to support this one-sentence assertion.
This argument has therefore been abandoned. See Supreme Court Rule 22.
                                     29
the Forest Park police. This timing would not require a finding that

the warrant was based on stale information. See, e.g., Mitchell v.

State, 

 (

) (1977) (“The information in

the affidavit was not so stale as to make it unlikely that the suspect’s

pants observed on March 9 would not be in his home on March 11

when the warrant issued, or on March 12 when it was executed.”).

     Appellant may be trying to argue that the passage of time

between the murder and the issuance of the search warrant

rendered the warrant stale. However,

     “‘[s]taleness’ as [it] relates to probable cause is not always
     measured by the interval between the commission of the
     crime and the issuance of the search warrant. ‘Staleness’
     as [it] relates to probable cause is measured by the
     probability that the thing to be seized is located at the
     place to be searched . . . .”

Lemon v. State, 

 (

) (2005) (quoting

Mitchell, 

). Although about 11 days passed between

the murder and the issuance of the warrant, there was a high

likelihood that evidence relating to the murder remained in the SUV

that Appellant had driven away from the murder scene and then left


                                  30
with a towing company. Thus, a motion to suppress on the ground

that the search warrant was based on stale information would have

failed, and trial counsel did not perform deficiently (or cause any

prejudice) by failing to file a meritless motion. See Santana v. State,

 (

) (2020) (“When trial counsel’s failure

to file a motion to suppress is the basis for a claim of ineffective

assistance, the defendant must make a strong showing that the

damaging evidence would have been suppressed had counsel made

the motion.” (citation and punctuation omitted)).14

      (c) Finally, Appellant argues that his trial counsel provided

ineffective assistance by not objecting to testimony about a shoe

print. During the trial, a Forest Park police sergeant testified that

there was a partial “shoe print” on the floor in the hallway leading

toward the master bedroom where Beckwith’s body was found. The




      14 In ruling on this claim in its order denying Appellant’s motion for new

trial, the trial court held both that the search warrant was not stale and that
Appellant did not have standing under the Fourth Amendment to challenge
the search because he abandoned the SUV. Because we conclude that the
search warrant was not stale, we need not also decide whether Appellant had
Fourth Amendment standing.
                                      31
sergeant then testified that the sole of one of the dress shoes found

in Appellant’s SUV “looked similar” to the shoe print found at the

murder scene. Appellant did not object to any of this testimony. On

cross-examination, however, trial counsel got the sergeant to admit

that he was not sure it actually was a shoe print. The sergeant

explained that there was no tread pattern and “the only thing that

led [him] to believe” that it was a shoe print was its location, because

“one of the things that transfers on the floor is usually . . . a shoe.”

He also acknowledged that his opinion about the similar sole of the

dress shoe was “just an eyeball” observation, not a scientific

conclusion, and that he did not have any expert accreditation to

conclude that one matched the other. Photographs of the purported

shoe print and of the dress shoe sole were admitted into evidence.15

     Appellant now argues that the sergeant’s testimony was not

proper lay witness testimony because the jury had the same

information that the sergeant had for comparing the shoe print and


     15 The photograph of the purported shoe print looks like it may be in

blood, but there was no testimony about that.

                                     32
the dress shoe sole. See OCGA § 24-7-701 (a).16 We need not decide

whether the sergeant’s testimony about the shoe print was properly

admitted, however, or whether trial counsel acted unreasonably by

failing to object, because this testimony did not likely affect the

result of the trial. As described above, the sergeant substantially

qualified his testimony, admitting that his comparison of what only

might have been a shoe print with the dress shoe sole was just an

“eyeball” evaluation and that he had no special qualification to make

a comparison. It is unlikely that the jurors would have deferred to

this tentative testimony rather than comparing the purported shoe

print and shoe sole on their own. And even assuming that the jury

did credit the sergeant’s testimony, it likely carried little weight in

light of the other, much stronger evidence that Appellant killed



     16 OCGA § 24-7-701 (a) says:

           (a) If the witness is not testifying as an expert, the witness’s
     testimony in the form of opinions or inferences shall be limited to
     those opinions or inferences which are:
                   (1) Rationally based on the perception of the witness;
                   (2) Helpful to a clear understanding of the witness’s
     testimony or the determination of a fact in issue; and
                   (3) Not based on scientific, technical, or other
     specialized knowledge within the scope of Code Section 24-7-702.
                                      33
Beckwith. Accordingly, Appellant has failed to show a reasonable

probability that, in the absence of the sergeant’s testimony, the

result of the trial would have been different. See Naples, 

.

      6. The trial court’s evidentiary error assumed in Division 3 (a)

(ii) and the deficiency of trial counsel assumed in Division 5 (c), even

when viewed cumulatively, did not likely affect the result of the

trial. See State v. Lane, 

 (

) (2020)

(holding that at least as to evidentiary issues, this Court must

“consider collectively the prejudicial effect, if any, of trial court

errors, along with the prejudice caused by any deficient performance

of counsel”). As discussed in those subdivisions, the assumed error

and deficiency each created very little prejudice, and the evidence

against Appellant was very strong.

     Judgment affirmed. All the Justices concur, except Warren, J.,
not participating.




                                  34
                    Decided October 19, 2020.

          Murder. Clayton Superior Court. Before Judge Collier,
Senior Judge.
          John K. Kraus, for appellant.
          Tasha M. Mosley, District Attorney, Elizabeth A. Baker,
Karen S. Barbour, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Kathleen L. McCanless, Assistant Attorney General, for
appellee.




                                35