310 Ga. 372
FINAL COPY
S20A0786. HARRIS v. THE STATE.
WARREN, Justice.
A jury found Vincent Martinez Harris guilty of the malice
murders of Tina Green-Hall and her six-year-old son, Jeremy Green-
Hall.1 On appeal, Harris contends that the trial court abused its
discretion by admitting certain evidence and committed plain error
by failing to give the jury a limiting instruction regarding that
evidence. Harris also contends that his trial counsel rendered
constitutionally ineffective assistance in various respects. We
affirm.
1. Viewed in the light most favorable to the jury’s verdicts,
1 The crimes occurred on February 24, 2012. A Muscogee County grand
jury indicted Harris for two counts of malice murder. Harris was tried from
November 7 to 17, 2016, and a jury found him guilty on both counts. On
December 15, 2016, the trial court sentenced Harris to consecutive sentences
of life in prison without parole. On January 5, 2017, Harris filed a motion for
a new trial through new counsel, which he later amended through current
counsel. After a hearing, the trial court denied the motion for a new trial, as
amended, on October 1, 2019. Harris timely filed a notice of appeal on October
17, 2019, and the case was docketed in this Court to the April 2020 term and
orally argued on August 11, 2020.
the evidence presented at trial showed the following. In October
2011, Tina agreed that Harris could live with her and Jeremy in her
house in Columbus because Harris had been ousted from the house
he previously shared with his ex-girlfriend, Patricia Sherrod, who
had taken out a temporary protective order (“TPO”) against Harris.
The original arrangement was for Harris to be out of Tina’s house
by December 2011, but Harris continued living there through
January 2012 and into February. Only Tina and Harris had keys to
Tina’s house. Tina told her neighbors and her ex-husband, Jerry
Hall, that she wanted Harris out and that she was going to ask
Harris to leave. Hall testified that on Thursday, February 23, the
day before the killings, he visited Tina and she told him she wanted
to get a legal document forcing Harris to leave her house. Hall
suggested that they do so together on the following Monday.2 At
2 On appeal, Harris points to evidence that Hall had previously thrown
a brick through Tina’s window and stolen items from her home, and Tina had
taken out a TPO against Hall, which he was arrested for violating
approximately six months before the killings. Investigators contacted Hall on
the day of the killings and he consented to a gunshot residue test of his hands,
which “reveal[ed] three particles associated with gunshot primer residue.”
2
trial, Tina’s neighbor, Emma Stokes, testified that Harris told her
that “[‘]another woman will not put me out of – would never put me
out, I will kill her first.[’] Those [we]re his exact words.” On Friday,
February 24, Tina and Jeremy both died from gunshot wounds to
the chest.
According to Harris, when he returned home from work at
approximately 1:30 p.m. that day, he found Tina’s and Jeremy’s
bodies next to each other in Jeremy’s bed. Harris called 911 and told
the operator, “I need to report a double murder,” before then saying,
“two people just killed themselves in my house.” Harris informed
the operator that “they [are] beyond hope.” When the operator asked
if Harris knew whether Tina “happened to be in any kind of
altercation with anybody,” Harris responded “no,” and noted that
Tina and her ex-husband “have a good relationship.” Harris also
volunteered that Tina “was going through a lot of problems,
financial problems,” that “she had told her mother I guess two
months or so ago that she . . . was planning on doing it,” and that
her mom “didn’t really care and told her to go ahead and do it,”
3
implying that Tina was suicidal.3
Responding officers found no signs of forced entry, and nothing
was taken from the house. Tina and Jeremy were cold to the touch.
Officers recovered a .38-caliber Rossi revolver from Jeremy’s
bedroom; it was lying on the floor near the foot of the bed, out of
Tina’s reach. In Harris’s bedroom (which he did not share with
Tina), officers found a set of keys that unlocked a safe also located
in Harris’s bedroom. Officers found an empty Rossi gun case and an
ammunition box with bullets missing inside the safe.
Harris told responding officers that when he left for work at
5:30 that morning, Tina and Jeremy were asleep together in
Jeremy’s bed; that the door was locked when he returned home; that
he had to unlock both locks on the door before entering; and that he
found Tina and Jeremy dead when he got inside the home. Harris
3 Tina’s mother testified at trial that Tina had never talked to her about
committing suicide, and that “Tina would never do nothing to hurt herself or
that baby.” Tina’s friends, neighbors, and co-workers also testified at trial to
similar sentiments like Tina being an “optimistic” person with a “zest for life”
who “would never do this . . . would never take her own life, uh-uh, Jeremy,
uh-uh, no.”
4
also told responding officers that Tina “struggled with depression,”
and that “Tina was probably thinking that she was doing him a
favor” by killing herself and her son.
The same day, February 24, Harris was transported to the
Columbus police station, where he agreed to give a statement to
police. That six-hour interview was video-recorded and played for
the jury at trial. Harris was not given the Miranda4 warnings before
that interview; Sergeant Michael Dahnke testified that at that time,
Harris was a witness, not a suspect. During that interview, Harris
again claimed that Tina had discussed suicide with her mother, who
told Tina to “go ahead and do it.”
Harris consented to having buccal swabs and multiple gunshot
residue tests taken. Testing of Harris’s pants “revealed a small
quantity of gunshot primer residue,” and testing of his jacket
“revealed particles that are associated with [gunshot residue].”5
4 See Miranda v. Arizona, 384 U.S. 436 (
86 SCt 1602, 16 LE2d 694)
(1966).
5 Harris’s hands did not reveal the presence of gunshot primer residue,
and Tina’s hands did reveal “the presence of gunshot primer particles.”
5
Dr. Douglas Posey, the medical examiner who performed
autopsies on Tina and Jeremy, determined that they each died from
a single gunshot wound to the chest and initially classified the
manner of Tina’s death as suicide. In August 2012, a detective
closed the case as a murder-suicide with a notation to re-open it if
other pertinent evidence arose. On April 2, 2013, Columbus police
asked Dr. Posey to “reassess” Tina’s autopsy report. Dr. Posey
amended Tina’s manner of death from “suicide” to “undetermined”
based on “additional investigative information.” At trial, Dr. Posey
testified that Tina — who was right-handed — was shot in the chest,
“from the left to right, from the front to back and downward.”
Columbus Police Sergeants Randy Long and David Jury
testified that after further examination of the file and of crime-scene
evidence, they believed that Tina had been shot before Jeremy. Dr.
Kris Sperry, the Georgia Bureau of Investigation’s chief medical
examiner, testified that “after [Dr. Posey] had retired, then I was
contacted by representatives from the Columbus Police Department
in order to look at really the scene photographs and review the
6
report and kind of re-evaluate the case from my perspective as a
forensic pathologist or medical examiner.” Dr. Sperry concluded
that, based on the movement of the bedding in conjunction with the
placement of the bodies, “the order of the gunshot wounds [was] that
[Tina] had been shot first and then the boy had been shot second,
which would be of course the opposite of what would have occurred
if this were a suicide.” On December 15, 2014, Dr. Sperry amended
Tina’s manner of death from “undetermined” to “homicide.” Harris
was arrested, waived his Miranda rights, and gave a second
statement to law enforcement denying that he killed Tina and
Jeremy.
Harris does not contest the legal sufficiency of the evidence
supporting his convictions. Nevertheless, consistent with this
Court’s general practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial was sufficient to
authorize a rational jury to find Harris guilty beyond a reasonable
7
doubt of the crimes for which he was convicted.6 See Jackson v.
Virginia, 443 U.S. 307, 318-319 (
99 SCt 2781, 61 LE2d 560) (1979).
2. Harris contends that the trial court abused its discretion
by allowing certain evidence to be presented to the jury. Specifically,
Harris complains that evidence regarding an incident with his ex-
girlfriend, Sherrod, that resulted in a TPO being entered against
him, as well as evidence regarding his ex-wife, Charlene Doleman,
and ongoing alimony disputes with her, should not have been
admitted in his trial for the murders of Tina and Jeremy because,
according to Harris, it was extrinsic evidence that did not satisfy the
requirements of OCGA § 24-4-404 (b) (“Rule 404 (b)”).7 But because
6 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, 309 Ga.
385, 392 (
846 SE2d 83) (2020). The Court began assigning cases to the
December term on August 3, 2020.
7 That statute provides, in relevant part:
Evidence of other crimes, wrongs, or acts shall not be
admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for
other purposes, including, but not limited to, proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. . . .
OCGA § 24-4-404 (b).
8
the trial court neither abused its discretion nor plainly erred in
admitting the Sherrod/Doleman evidence, we disagree.
(a) The Sherrod/Doleman evidence.
The bulk of the evidence that Harris complains about on appeal
was introduced through the video recording of his February 24
interview with police. The vast majority of that interview did not
have anything to do with Sherrod or Doleman, and even the parts of
the interview that did for the most part only generally touched on
the nature of Harris’s difficulties with Sherrod, which caused him to
leave the house he shared with Sherrod and move in with Tina. For
example, when asked about his current residence, Harris responded,
“right now, I’m just staying with [Tina] because I got kicked out my
house.” However, some of Harris’s statements to police revealed
more details about the underlying facts of the Sherrod TPO and the
Doleman alimony dispute.
Those more specific statements included that “a judge ordered
me out of my house . . . [b]ecause [Sherrod] said she felt like her life
was threatened.” Harris told the investigator that Sherrod “was
9
trying to figure a way to steal my house and she did.” Harris further
explained that Sherrod was “highly upset” because Harris had “met
another girl,” and that one night when he came home from work, his
bedroom door had been taken off its hinges and was missing. Harris
explained that he suspected Sherrod, so he “busted out about four
windows,” “broke up some other stuff,” and “wrote some things on
the wall” because he was “angry as hell.” According to Harris,
Sherrod “said she feel like she threatened and I’m gonna kill her,
and the Judge said ‘I believe you; 6 months out your house.’ So that’s
how I end up with Tina in October.”8 Harris also stated that “now
the house” he previously lived in with Sherrod was “supposed to be
sold on the courthouse steps.”
Later in the interview, Harris told the investigator that
Harris’s ex-wife, Doleman, was “dragging [him] back and forth to
8 Also related to Sherrod was Stokes’s testimony that Harris, in
expressing his anger over Sherrod to Stokes, stated that “another woman will
not put me out of — would never put me out, I will kill her first.” Harris argues
that the availability of Stokes’s testimony is one of the reasons why the similar
Sherrod evidence was not necessary to the State’s case.
10
court. And that’s where Tina came in, because Tina felt like she was
a burden to me because all these people were doing stupid stuff.”9
Harris said that he “just went to court with [Doleman] that week,”
and that their “divorce just got finalized a couple months ago.” This
discussion prompted the investigator to ask, “so, you got three
different relationships going on in some capacity then?” to which
Harris responded, “yeah.” And shortly after that, while explaining
his actions on the day of the murders, Harris said that he thought
about paying Doleman $470 that he owed her on the way home from
work, but “decided to wait until Monday because I wanted
[Doleman] to suffer before I do it.”10
Unrelated to his statements to police, Harris also gave an
interview to a local television station which was later played for the
9 Although Harris contends on appeal that the trial court abused its
discretion by admitting certain evidence pertaining to Doleman, the record
shows that Harris’s trial counsel did not object to that Doleman evidence at
trial and thus waived ordinary appellate review of that issue on appeal. See
Division 2 (c), below.
10This last statement was referenced during the prosecutor’s cross-examination of Harris at trial.
11
jury. In that interview, Harris said that he “got in trouble,” “made
a bad mistake,” and
I called Tina, and just telling her what the Judge said that
he put me out the house because he felt like I’m a violent
person, which I am not . . . . But I understand the judge.
When you talk about domestic violence, it’s on the rise, so
he felt that for the safety of my roommate that I needed
to go somewhere and cool off. 30 minutes after I called
Tina, she said “here’s the key.”11
Before trial, Harris made an oral motion in limine requesting
“that the State not go into . . . evidence pertaining to Ms. Sherrod,”
and that as to Sherrod, the “testimony be limited not to include any
prior bad acts.” The trial court denied Harris’s motion. Although
the trial court did not specify at that time or when the issue was
later revisited whether the evidence was admissible as intrinsic or
11 Harris also complains that “if the prior bad acts were not at the center
of the case by the close of the State’s evidence, the cross-examination of Harris
brought the acts to the foreground” when “Harris was impeached extensively”
and “crushed” with this evidence. But Harris’s trial testimony was less
detailed about either the Sherrod TPO incident or the Doleman alimony
dispute than the evidence described above, and we do not agree with Harris’s
characterization of the cross-examination concerning any of the Sherrod or
Doleman evidence as “crush[ing].” As a result, Harris’s trial testimony
concerning the Sherrod/Doleman evidence adds little, if anything, to our
analysis.
12
extrinsic evidence, in the trial court’s order denying Harris’s motion
for new trial, the trial court specified that the challenged evidence
was admissible intrinsic evidence12 and that it satisfied the
requirements of OCGA § 24-4-403 (“Rule 403”).13
(b) The trial court did not abuse its discretion by
admitting the Sherrod-specific evidence.
Because Harris specifically objected in his pre-trial motion in
limine to the admission of the Sherrod evidence, his argument about
that evidence is preserved for ordinary appellate review. We
conclude that the trial court did not abuse its discretion in admitting
the Sherrod evidence as intrinsic evidence.
12 Harris complains about the trial court making this finding in its order
on his motion for new trial because, according to Harris, “the ‘intrinsic
evidence’ position is inconsistent with the arguments at trial.” But it is well
established “that the superior court has the power to interpret and clarify its
own orders. Such power includes shedding light on the scope of an earlier
ruling.” Barlow v. State, 279 Ga. 870, 872 (
621 SE2d 438) (2005) (citations
omitted).
13 That statute provides: “Relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” OCGA
§ 24-4-403.
13
Harris argues that the Sherrod evidence was inadmissible as
either extrinsic Rule 404 (b) evidence or as intrinsic evidence.
Evidence is admissible as intrinsic evidence, rather than extrinsic
evidence subject to Rule 404 (b), “when it is (1) an uncharged offense
arising from the same transaction or series of transactions as the
charged offense; (2) necessary to complete the story of the crime; or
(3) inextricably intertwined with the evidence regarding the charged
offense.” Williams v. State, 302 Ga. 474, 485 (
807 SE2d 350) (2017)
(citation and punctuation omitted); see also Brown v. State,
307 Ga.
24, 29 (
834 SE2d 40) (2019). Even when evidence is intrinsic,
however, it “must also satisfy Rule 403.” Williams,
302 Ga. at 485.
“[I]t is within the trial court’s sound discretion to determine whether
to admit such evidence,” Fleming v. State,
306 Ga. 240, 245 (
830
SE2d 129) (2019), so we review a trial court’s ruling admitting
evidence as intrinsic for an abuse of that discretion. Brown,
307 Ga.
at 29.
“[E]vidence ‘pertaining to the chain of events explaining the
context, motive, and set-up of the crime is properly admitted’” as
14
intrinsic evidence “‘if (it is) linked in time and circumstances with
the charged crime, or forms an integral and natural part of an
account of the crime, or is necessary to complete the story of the
crime for the jury.’” Williams, 302 Ga. at 485-486 (quoting United
States v. Edouard,
485 F3d 1324, 1344 (11th Cir. 2007)).14 Moreover,
“intrinsic evidence remains admissible even if it incidentally places
the defendant’s character at issue.”
Id. (citation and punctuation
omitted).
The general fact that Harris was forced to leave the house that
he previously shared with Sherrod — a fact that explained why
Harris moved in with Tina in the first place — was admissible as
part of the State’s case. The question here is whether the trial court
abused its discretion in also admitting, as intrinsic evidence, specific
evidence about why he had to leave that house, like that Harris
14 “[W]hen we consider the meaning of a rule in Georgia’s current
Evidence Code that is materially identical to a Federal Rule of Evidence, we
look to decisions of the federal appellate courts construing and applying the
Federal Rules, especially the decisions of the United States Supreme Court
and the Eleventh Circuit, for guidance.” State v. Hamilton, 308 Ga. 116, 121
(
839 SE2d 560) (2020) (citations and punctuation omitted).
15
broke windows and “other stuff” and that Sherrod felt like Harris
was a threat to her life, resulting in a judge entering a TPO against
Harris.
Although we view this evidentiary issue as close, we conclude
that under the circumstances of this case, the trial court’s admission
of the Sherrod evidence was not an abuse of its discretion. That is
because the Sherrod evidence — even including details such as
Harris breaking items and causing Sherrod to feel like her life was
threatened — provided context to other witnesses’ accounts of the
circumstances surrounding Tina and Jeremy’s murders — such as
Stokes’s testimony that Harris told Stokes “another woman will not
put me out of — would never put me out, I will kill her first,” and
the testimony of multiple witnesses that Tina intended to kick
Harris out of her house very soon — and helped explain Harris’s
possible motivations in facing those circumstances. Therefore, when
considered in light of the other evidence presented in this particular
case, the Sherrod evidence was reasonably “necessary to complete
the story for the jury.” Williams, 302 Ga. at 486.
16
Harris, however, argues that the Sherrod evidence was not
intrinsic because it was not “necessary” to complete the story of Tina
and Jeremy’s murders. In addressing this argument, we note that
the Eleventh Circuit has spoken of admissible intrinsic evidence as
that which is “reasonably necessary to complete the story of the
crime.” United States v. Fortenberry, 971 F2d 717, 721 (11th Cir.
1992) (emphasis supplied); see also United States v. Sanders, 663
Fed. Appx. 781, 783 (11th Cir. 2016) (per curiam) (evidence that
defendant had threatened to shoot someone before he was arrested
and charged with illegal possession of a firearm was admissible as
intrinsic evidence even though it “may not have been strictly
necessary to the government’s case,” because although “[e]vidence of
the uncharged criminal conduct may not be necessary to prove the
charged offense, . . . there is no requirement that the government
proffer only enough evidence to allow the jury to convict, and no
more,” and this evidence “helped the jury understand the sequence
of events that led to the discovery of the firearm, and to Sanders’s
arrest”) (emphasis supplied) (citing United States v. Wright,
392 F3d
17
1269, 1276-1277 (11th Cir. 2004) and Fortenberry, 971 F2d at 721).
Similarly, our Court has upheld a trial court’s admission of intrinsic
evidence as “necessary to complete the story of the crime for the
jury” where the evidence “advanced” the State’s “theory of the case”
that the charged offenses “were the culmination of a series of”
incidents, and “the State had some need for this evidence” to “g[i]ve
further context as to why this series of incidents occurred.” Smith
v. State,
307 Ga. 263, 272-273 (
834 SE2d 1) (2019) (citation and
punctuation omitted; emphasis supplied); see also Brewner v. State,
302 Ga. 6, 14 (
804 SE2d 94) (2017) (citing favorably language from
Old Chief v. United States,
519 U.S. 172, 183 (
117 SCt 644,
136
LEd2d 574) (1997), recognizing “‘the offering party’s need for
evidentiary richness and narrative integrity in presenting a case’”).
As such, when we consider what evidence is necessary for the State
to complete the story of the crime, “necessary” is not used in a
strictly literal sense, but rather, refers to what evidence is
reasonably necessary for the State to complete the story of the crime.
Here, Stokes’s testimony that Harris told Stokes “another
18
woman will not put me out of — would never put me out, I will kill
her first,” added significant weight to the State’s theory that Harris
killed Tina and Jeremy because Tina was trying to kick Harris out
of her home.15 And Stokes’s testimony that Harris issued this threat
is given more context and makes more sense in light of the evidence
that Harris reacted violently to what he perceived as Sherrod’s
attempts to “steal” the house he and Sherrod shared. See Thompson
v. State, 302 Ga. 533, 534, 542-543 (
807 SE2d 899) (2017) (evidence
that defendant was a drug dealer was intrinsic to the murders of a
couple found shot to death inside their home, and therefore
admissible, in part because the evidence was used to prove motive
and “also provide[d] context to” a witness’s testimony about the
15 As noted above, part of Harris’s argument is that the Sherrod evidence
was not necessary “because Harris’ out-of-court statement to Emma Stokes
was available, independent evidence to support the State’s theory of motive.”
But the State is not limited to proffering the minimum amount of evidence that
would be sufficient for a jury to find a defendant guilty beyond a reasonable
doubt. See, e.g., Poole v. State, 291 Ga. 848, 857 (
734 SE2d 1) (2012)
(recognizing the “State’s entitlement to choose the evidence needed to prove its
case”); State v. Dixon,
286 Ga. 706, 708 (
691 SE2d 207) (2010) (“‘[T]he familiar,
standard rule [is] that the prosecution is entitled to prove its case by evidence
of its own choice. . . .’”) (quoting Old Chief,
519 U.S. at 186); Sanders,
663 Fed.
Appx. at 783 (“[T]here is no requirement that the government proffer only
enough evidence to allow the jury to convict, and no more.”).
19
circumstances surrounding the crimes); Williams, 302 Ga. at 486
(evidence is “‘inextricably intertwined’ with the evidence regarding
the charged offense if it forms an ‘integral and natural part of the
witness’s accounts of the circumstances surrounding the offenses for
which the defendant was indicted’”) (quoting Edouard,
485 F3d at
1344). In other words, Harris’s actions and Sherrod’s reaction
concerning the TPO incident provided context and lent support to a
key piece of evidence at the center of the State’s theory of the case.
Moreover, the additional details about the Sherrod evidence
presented to the jury did not just explain why Harris moved in with
Tina; it also explained why Harris would not expect Sherrod to let
him return to the house he previously shared with her if Tina ever
“put [him] out.” See Clark v. State, 306 Ga. 367, 374 (
829 SE2d 306)
(2019) (concluding that evidence that the defendant pushed and hit
the victim’s wife years before the murder of the victim was intrinsic
and admissible because it “was necessary to complete the story of
the crime for the jury” and “provided context for the charged offenses
to explain why” the parties acted and felt the way they did). The
20
Sherrod evidence and other evidence developed at trial, which
included the testimony of multiple witnesses that Tina wanted to
evict Harris from her house and planned on doing so within the
week, showed that this was exactly the predicament Harris faced:
being kicked out of his residence by Tina and unable to return to his
residence with Sherrod. As such, the Sherrod evidence was
“intertwined with” the other evidence and witness accounts
regarding the murders of Tina and Jeremy, and was part of the
narrative of the case. Under the particular circumstances of this
case, the limited additional facts about the Sherrod TPO that were
presented to the jury “pertain[ed] to the chain of events explaining
the context, motive, and set-up” of the murders, “form[ed] an
integral and natural part of the witness’s accounts of the
circumstances surrounding the offenses,” and were reasonably
“necessary to complete the story of the crime for the jury.” Williams,
302 Ga. at 485-486 (citations and punctuation omitted). The trial
court, therefore acted within its discretion when it found that the
Sherrod evidence was intrinsic to the charged offenses. See, e.g.,
21
Keller v. State, 308 Ga. 492, 505 (
842 SE2d 22) (2020) (trial court did
not abuse its discretion in admitting evidence that defendant argued
with his ex-wife about his treatment of her son, kicking and
damaging a door during the argument, because such evidence was
intrinsic to the charged murder of the child); McCammon v. State,
306 Ga. 516, 522 (
832 SE2d 396) (2019) (witness’s testimony “that
he and Appellant smoked marijuana during their six months of
friendship before the murder . . . [although] further afield from the
charged crimes, . . . was a natural part of [the witness’s] account of
his relationship with Appellant” and was admissible as intrinsic
evidence).
Harris also argues that the Sherrod evidence was not intrinsic
to the charged offenses because it “involved different parties,
different locations, and different conduct, at different times.” He
specifically argues that the evidence was “mostly removed in time
by over six months” from the charged offenses and “did not involve
Tina or Jeremy,” showing that it was “not part of” and did not “arise
from” the charged offenses.
22
It is true that whether evidence is “linked in time and
circumstances with the charged crime” is pertinent to the intrinsic-
evidence analysis, see Williams, 302 Ga. at 485-486 (citation and
punctuation omitted), but there is no bright-line rule regarding how
close in time evidence must be to the charged offenses, or requiring
evidence to pertain directly to the victims of the charged offenses,
for that evidence to be admitted properly as intrinsic evidence. See,
e.g., Priester v. State,
309 Ga. 330, 332-333 (
845 SE2d 683) (2020)
(evidence that witnesses, who were not victims or otherwise involved
in the charged offenses — one of whom had known defendant “for
nearly a year” — had purchased drugs from the defendant prior to
the charged offense “was intrinsic to the crimes with which [the
defendant] was charged” because it “was an integral and natural
part of [the witness’s] account[ ] of the circumstances surrounding
the shooting”); Clark,
306 Ga. at 373-374 (rejecting defendant’s
argument that because evidence of a prior act of violence by the
defendant “did not occur between [the defendant] and the victim,” it
was inadmissible, and concluding that a witness’s testimony about
23
a three-year-old incident in which the defendant “pushed her
against a door and hit her” was intrinsic to the defendant’s murder
of the witness’s husband because it “was necessary to complete the
story of the crime for the jury” and “provided context for the charged
offenses”). Cf. Virger v. State, 305 Ga. 281, 293-294 (
824 SE2d 346)
(2019) (“The State’s assertion [that certain evidence was intrinsic]
is dubious, because none of the charged crimes were against [the
victim of the prior incident] and the headlock incident occurred
many months before the [charged crimes]. But we need not decide
whether the evidence was properly admitted, because its admission
was harmless.”).16 And because we have concluded that the trial
court did not abuse its discretion in finding that the Sherrod
evidence was intrinsic to the charged offenses, we need not
determine the admissibility of that evidence under Rule 404 (b).
Finally, although the evidence that Harris broke items at the
16 Harris also argues that the Sherrod evidence was not intrinsic because
it was “not used by Harris in out-of-court statements to establish a trial
defense.” Although Harris’s attempt to use evidence in his own defense may
be relevant to whether he “opened the door” to certain evidence, that
circumstance is not particularly relevant to our analysis here.
24
house he shared with Sherrod and that Sherrod felt like Harris had
threatened her life was prejudicial, we see no abuse of discretion in
the trial court’s finding that “the challenged evidence satisfied the
requirements of OCGA § 24-4-403,” which permits the exclusion of
relevant evidence “if its probative value is substantially outweighed
by the danger of unfair prejudice.” See Smith, 307 Ga. at 273
(concluding evidence was admissible as intrinsic to the charged
offenses and satisfied Rule 403 where “the State had some need for
this evidence,” which “was not substantially outweighed by the
danger of unfair prejudice”); United States v. Estrada,
969 F3d 1245,
1275 (11th Cir. 2020) (in criminal trial, evidence of numerous acts
of violence and extortion by the defendants’ organization was
admissible as intrinsic evidence that satisfied Rule 403, “although
some of the evidence . . . had the potential to elicit an emotional
response from the jury”). The trial court therefore did not abuse its
discretion in admitting the Sherrod evidence Harris complains
about on appeal.
(c) Harris waived ordinary appellate review for his claims
25
pertaining to the Doleman-specific evidence.
Contrary to Harris’s argument on appeal, his trial counsel did
not object at the trial court level to any evidence concerning
Doleman. Harris nonetheless contends that his complaints about
the Doleman evidence were preserved for appeal. According to
Harris, who points to Clark, 306 Ga. 367, that is because the State
cited the Doleman evidence as part of its response to Harris’s motion
in limine to exclude the Sherrod evidence, meaning that the trial
court’s ruling denying Harris’s motion in limine was a definitive
ruling on the admissibility of the Doleman evidence as well, thus
preserving the Doleman issue for ordinary appellate review. But
neither Clark nor Anthony v. State,
298 Ga. 827, 831-832 (
785 SE2d
277) (2016), another case on which Clark relies, stands for the
proposition that an evidentiary issue may be preserved for ordinary
appellate review when the objecting party makes no objection to the
evidence whatsoever. Rather, Clark summarily held that because
“the trial court ruled definitively at a pretrial hearing that evidence
of the [prior bad] act would be admissible, [the defendant] was not
26
required to object to the evidence at trial to preserve his claim of
error for appeal.” 306 Ga. at 373-374. Clark based that holding
solely on Anthony, which held that “‘[o]nce the court makes a
definitive ruling on the record admitting or excluding any evidence,
either at or before trial, a party need not renew an objection or offer
of proof to preserve such claim of error for appeal.’” Id. at 831-832
(emphasis supplied) (quoting OCGA § 24-1-103 (a)); see also OCGA
§ 24-1-103 (a) (1) (“Error shall not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party
is affected and . . . [i]n case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record, stating the
specific grounds of objection, if the specific ground was not apparent
from the context[.]”) (emphasis supplied). Neither Clark nor
Anthony stands for the proposition that a party is not required to
object to evidence to preserve an error on appeal, so long as the judge
rules that evidence is admissible. Therefore, because Harris never
objected to the Doleman evidence below, he has not preserved
ordinary appellate review concerning the admission of that
27
evidence. But, because “[n]othing in [OCGA § 24-1-103] shall
preclude a court from taking notice of plain errors affecting
substantial rights although such errors were not brought to the
attention of the court[,]” OCGA § 24-1-103 (d), we may still review
the trial court’s admission of the Doleman evidence for plain error.
(d) The trial court did not commit plain error by admitting
the Doleman evidence.
“To establish plain error, Appellant must identify an error that
was not affirmatively waived, was clear and not open to reasonable
dispute, likely affected the outcome of the proceeding, and seriously
affected the fairness, integrity, or public reputation of judicial
proceedings.” Thompson v. State, 304 Ga. 146, 151 (
816 SE2d 646)
(2018). Here, even assuming without deciding that it was clear error
to admit the Doleman evidence — that Harris was in an ongoing
alimony dispute with his ex-wife and chose to temporarily delay
paying her because he “wanted her to suffer” — the admission of
Harris’s passing, and relatively unsurprising, statement of
bitterness toward his ex-wife did not likely affect the outcome of his
28
trial. See Williams v. State, 304 Ga. 455, 460 (
818 SE2d 653) (2018)
(no plain error because “mention of criminal damage to property did
not likely affect the outcome of the proceedings”). Therefore Harris
has not established plain error regarding the trial court’s admission
of the Doleman evidence. See Taylor v. State,
303 Ga. 225, 227-229
(
811 SE2d 286) (2018) (trial court did not plainly err in admitting
video of police interrogation of defendant that defendant claimed
improperly referenced her character and prejudiced her).
3. In the alternative, Harris contends that the trial court
committed plain error by failing to instruct the jury that the
“extrinsic” Sherrod/Doleman evidence was admitted for the limited
purpose of proving motive. But this alternative argument is based
on the premise that the Sherrod/Doleman evidence was extrinsic
Rule 404 (b) evidence, and holds little weight considering our
analysis above.
Specifically, we have concluded that the trial court did not
abuse its discretion in admitting the Sherrod evidence as intrinsic
to the charged offenses. And although the Doleman evidence, which
29
consists of Harris’s statement that he wanted to temporarily
withhold alimony he owed Doleman to make her suffer, could be
viewed as somewhat prejudicial, we have already determined that
the admission of the Doleman evidence did not likely affect the
outcome of Harris’s trial. Therefore, Harris has not shown that the
trial court, by not providing a Rule 404 (b) limiting instruction,
committed an error that is “clear and not open to reasonable dispute”
— as it concerns the Sherrod evidence — or that the alleged error
“likely affected the outcome of the proceeding” — as it concerns the
Doleman evidence. Thompson, 304 Ga. at 151. See Williams, 302
Ga. at 485 (“The limitations and prohibition on ‘other acts’ evidence
set out in OCGA § 24-4-404 (b) do not apply to ‘intrinsic evidence.’”);
United States v. Lehder-Rivas, 955 F2d 1510, 1515 n.1 (11th Cir.
1992) (because “the vast majority of the disputed evidence was
intrinsic to the crimes charged,” a limiting instruction was “not
required,” and because, there, “the lower court’s few erroneous
admissions of extrinsic evidence were harmless,” so was lower
court’s failure to provide a limiting instruction). This enumeration
30
of error also fails.
4. Harris contends that his trial counsel rendered
constitutionally ineffective assistance by: (a) failing to request a
Rule 404 (b) limiting instruction; (b) failing to object to inadmissible
hearsay and bolstering testimony; and (c) failing to seek suppression
of Harris’s February 24 interview with law enforcement.
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695
(
104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State,
286 Ga. 355,
356 (
689 SE2d 280) (2010). To satisfy the deficiency prong, a
defendant must demonstrate that his attorney “performed at trial in
an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms.” Romer v. State,
293 Ga. 339, 344 (
745 SE2d 637) (2013); see also Strickland,
466
U.S. at 687-688. To satisfy the prejudice prong, a defendant must
establish a reasonable probability that, in the absence of counsel’s
31
deficient performance, the result of the trial would have been
different. See Strickland, 466 U.S. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.”
Id. “If an appellant fails to meet his or her burden of proving either
prong of the Strickland test, the reviewing court does not have to
examine the other prong.” Lawrence v. State,
286 Ga. 533, 533-534
(
690 SE2d 801) (2010).
(a) Failure to request a Rule 404 (b) limiting instruction.
Harris’s contention that his trial counsel was constitutionally
ineffective for failing to request a Rule 404 (b) limiting instruction
regarding the Sherrod/Doleman evidence is largely defeated by the
analysis we have already provided regarding that evidence. As we
have explained above, the trial court did not abuse its discretion in
admitting the Sherrod evidence as intrinsic to the charged offenses,
meaning that a Rule 404 (b) limiting instruction was not warranted
for that evidence. And neither the admission of the Doleman
evidence, nor any failure of the trial court to provide a limiting
instruction concerning that evidence, likely affected the outcome of
32
Harris’s trial. Therefore, Harris has not established that his trial
counsel was deficient by failing to request a Rule 404 (b) limiting
instruction concerning the Sherrod evidence, see Jones v. State, 287
Ga. 770, 771 (
700 SE2d 350) (2010) (“[T]rial counsel cannot be
faulted for failing to request a jury charge that was not authorized
by the evidence.”), or that, absent counsel’s alleged deficiency in
failing to request a Rule 404 (b) limiting instruction pertaining to
the Doleman evidence, there exists a reasonable probability that the
result of his trial would have been different, see Davis v. State,
302
Ga. 576, 586 (
805 SE2d 859) (2017) (defendant failed to show that
counsel’s failure to request a Rule 404 (b) limiting instruction
concerning evidence of defendant’s “prior familial disputes” affected
the outcome of his trial); Higginbotham v. State,
287 Ga. 187, 191
(
695 SE2d 210) (2010) (“Assuming deficient performance in the
failure to request a limiting instruction, appellant did not establish
prejudice therefrom — that the outcome of his trial would have been
different had the jury been told they were to consider the prior
[felony] convictions only for” the limited purpose for which they were
33
admitted); see also Roberts v. State, 305 Ga. 257, 265 (
824 SE2d 326)
(2019) (“[T]he test for prejudice in the ineffective assistance analysis
is equivalent to the test for harm in plain error review.”) (citation
and punctuation omitted).17 Because Harris has failed to show that
he was prejudiced by trial counsel’s alleged deficiency, his claim
fails.
(b) Failure to object, on hearsay and bolstering grounds, to
testimony from four of the State’s law enforcement
witnesses.
Harris briefly argues that his trial counsel was constitutionally
ineffective for failing to object, on hearsay and bolstering grounds,
to testimony from four of the State’s law enforcement witnesses:
Sergeant Frank Massa, Sergeant John Bailey, Detective Amanda
17 In this case, the prejudicial effect of any assumed trial court errors and
deficient performance by counsel, considered cumulatively, see State v. Lane,
308 Ga. 10, 14 (
838 SE2d 808) (2020), is no more prejudicial than when
considered in isolation because our separate holdings — that the result of
Harris’s trial was not likely affected by either the trial court’s admission of or
failure to provide a limiting instruction regarding the Doleman evidence, or by
his trial counsel’s failure to request a limiting instruction concerning that
evidence — are based only on the admission and consideration of the same
evidence.
34
Hogan, and Detective Matt Blackstock.18
But “counsel is ‘strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.’” Daughtie v. State, 297 Ga. 261,
266 (
773 SE2d 263) (2015) (quoting Strickland,
466 U.S. at 690). At
the hearing on his motion for new trial, Harris did not ask trial
counsel why she did not raise hearsay and bolstering objections to
the relevant testimony of Detectives Hogan or Blackstock. In his
scant briefing of the issue, Harris does not demonstrate how trial
counsel’s presumed strategic decisions were unreasonable, and the
record reveals no apparent indications that trial counsel’s decisions
not to object were unreasonable. Therefore, Harris has not shown
that his trial counsel was deficient in this regard. See Williams,
302
Ga. at 486 (“‘[R]easonable decisions as to whether to raise a specific
objection are ordinarily matters of trial strategy and provide no
18 We note that Harris did not raise the argument concerning Sergeants
Massa or Bailey in his motion for new trial and has therefore waived his
contentions concerning those two witnesses on appeal. See Williamson v.
State, 305 Ga. 889, 897 (
827 SE2d 857) (2019).
35
ground for reversal.’”) (quoting Ballard v. State, 297 Ga. 248, 254
(
773 SE2d 254) (2015)); Mitchell v. State,
290 Ga. 490, 492 (
722 SE2d
705) (2012) (“The decision not to object to certain hearsay or to
leading questions is often the result of reasonable trial strategy.
Because Appellant has not made a contrary showing, he has failed
to show deficient performance.”) (citation and punctuation omitted).
(c) Failure to seek suppression of Harris’s February 24
interview with police.
Harris contends that his trial counsel rendered
constitutionally ineffective assistance by failing to seek suppression
of Harris’s February 24, 2012 interview with police. But because the
record shows that trial counsel exercised reasonable professional
judgment in making this decision, Harris again fails to show
deficient performance.
The record shows that trial counsel made a strategic decision
to not seek suppression of Harris’s interview. What is more, Harris
has not made a strong showing that a motion to suppress that
interview would have been granted. See Wingster v. State, 295 Ga.
36
725, 727 (
763 SE2d 680) (2014) (“[W]hen 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). And regardless, there
were significant potential benefits to Harris in not seeking
suppression of his February 24 interview with police — some of
which were mentioned by his trial counsel in her testimony at
Harris’s motion for new trial hearing. At that hearing, Harris’s trial
counsel testified that Harris’s television interview “obviously
contained some of the same information that he would have gave in
the [February 24 police] interview,” and that she had “to balance
that with the statement he had already made to the local news
station as well, which [she] already knew was coming in evidence
anyway.” And trial counsel testified that “the whole theory of the
case that Mr. Harris was cooperative from the very beginning, never
tried to hide anything, basically was an open book as far as with the
investigation. So I don’t recall the voluntariness being an issue that
37
I recall.”
If Harris chose not to testify at trial, the February 24 interview
would allow the jury to hear his version of the story without being
subject to cross-examination, whereas if he chose to testify — which
is what ultimately occurred — the key parts of the February 24
interview would likely be admissible for impeachment purposes. In
either event, allowing the State to play the February 24 interview
for the jury without objection tended to support Harris’s overall
theory of the case that he was cooperative and forthcoming
throughout the investigation. Aside from the various instances of
potential upside for Harris, the downside of forgoing an attempt to
suppress the February 24 interview was limited, considering that
much of this evidence was cumulative of other evidence admitted at
trial, including the television interview Harris gave for a local news
station. See, e.g., Dent v. State, 303 Ga. 110, 118 (
810 SE2d 527)
(2018) (“[A]t the motion-for-new-trial hearing, trial counsel testified
that he wanted the video of the custodial interrogation admitted
because, in his opinion, it assisted his client’s defense. Thus, this
38
was a strategic decision which has not been shown to be
professionally unreasonable.”); Jones v. State, 300 Ga. 543, 547 (
796
SE2d 659) (2017) (where trial counsel testified that he decided not
to seek suppression of defendant’s statements, in part, because
much of what defendant said in those statements was cumulative of
other evidence presented at trial, and because playing defendant’s
recorded statements “would allow her to present her defense to the
jury without requiring her to testify,” that was a “strategic decision
[that] does not amount to ineffective assistance”); Smith v. State,
300 Ga. 532, 536 (
796 SE2d 671) (2017) (no deficient performance
because “[a]t the motion for new trial hearing, counsel testified that
during the trial, before Smith’s custodial statements were
introduced, she learned that Smith wanted to testify,” and therefore
decided to withdraw her motion to suppress “based upon her
knowledge that once Smith testified, his custodial statement would
be admitted for purposes of impeachment”).
Therefore, trial counsel’s strategic decision to not seek
suppression of Harris’s February 24 interview was within the
39
bounds of reasonable professional judgment, and Harris fails to
show that trial counsel’s decision was unreasonable. Because Harris
has failed to show that his trial counsel was deficient, Harris’s
claims of constitutionally ineffective assistance of counsel fail.
Judgment affirmed. All the Justices concur.
Decided October 19, 2020 —Reconsideration denied
November 16, 2020.
Murder. Muscogee Superior Court. Before Judge
Mullins.
Matthew K. Winchester, for appellant.
Julia F. Slater, District Attorney, George E. Lipscomb II,
Assistant District Attorney; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General,
Michael A. Oldham, Assistant Attorney General, for appellee.
40
