ALLEN v. THE STATE (Two Cases)

FINAL COPY

                  S20A1081. ALLEN v. THE STATE.
                 S20A1082. MCCRAY v. THE STATE.


      PETERSON, Justice.

      Dylon Allen and Zaykives McCray appeal their convictions for

malice murder and other offenses in connection with the shooting

death of Chiragkumar Patel.1 Allen argues on appeal that the trial

court erred by admitting evidence of a prior robbery and by allowing




      1 The crimes occurred on January 15, 2016. In May 2016, a Chattooga

County grand jury indicted Allen and McCray for malice murder, two counts
of felony murder, armed robbery, three counts of aggravated assault, three
counts of possession of a firearm during the commission of a felony, wearing a
mask to conceal identity, and simple battery. Following a joint trial held on
February 28 through March 3, 2017, a jury found Allen and McCray guilty on
all counts. The trial court sentenced Allen and McCray on March 6, 2017, and
later amended their sentences on December 16, 2019, sentencing Allen and
McCray to life in prison with the possibility of parole for malice murder, a
concurrent life term for armed robbery, a consecutive twenty-year term on one
aggravated assault count, consecutive five-year terms for two counts of
possession of a firearm during the commission of a crime, and one-year
concurrent terms for wearing a mask to conceal identity and for simple battery.
The trial court merged or vacated the remaining counts. Allen and McCray
filed timely motions for new trial, which they later amended. The trial court
held a joint hearing on Allen’s and McCray’s motions for new trial and denied
their motions on January 2, 2020. Allen and McCray filed timely notices of
appeal. Their cases were docketed to this Court’s August 2020 term,
consolidated, and submitted for a decision on the briefs.
McCray’s out-of-court statements to be used against Allen, and that

these errors cumulatively prejudiced him. McCray argues that the

trial court erred by failing to ensure that McCray understood his

right to be present at bench conferences and failing to instruct the

court reporter to transcribe the entirety of voir dire.

      We affirm Allen’s convictions because any errors in admitting

evidence of a prior robbery and McCray’s out-of-court statements

were harmless, even considered cumulatively. We also affirm

McCray’s convictions because the record shows that McCray elected

not to attend bench conferences despite being told that he could, and

the trial court was not required to order the court reporter to

transcribe voir dire.

      The evidence presented at the joint trial showed the following.2

In mid-January 2016, McCray told his then-girlfriend, Jade McCall,

that he was going to rob a store near a family member’s house in

Summerville. McCray said that he was going to commit the robbery


      2 Because this case requires an assessment of the harmful effect of
alleged trial court errors, we lay out the evidence in detail and not only in the
light most favorable to the verdicts.
                                       2
with his “brother,” which McCall understood to mean Allen.

     On the evening of January 15, 2016, McCray arranged for

Shannon Coalson to drive him from Rome to Summerville. McCray

arrived with Allen at Coalson’s home in Rome, and Coalson drove

the men, along with her roommate, Thyis Green, to Summerville in

her red Chrysler Sebring. Once in Summerville, Coalson backed into

the driveway of an abandoned-looking house that McCray said

belonged to his uncle. McCray and Allen exited the car and walked

toward Melanie Inn, a nearby convenience store.

     A video and audio recording from Melanie Inn’s surveillance

system showed two masked men entering the store around 9:11 p.m.

At trial, McCall identified the voices of the masked men from the

recording as belonging to Allen and McCray. One of the men shoved

a customer to the ground,3 while the other fired a shot at Patel, the

store clerk, striking him in the abdomen and causing him to fall to

the floor. Allen and McCray jumped over the counter, began filling



     3 This action formed the basis of the simple battery charge against Allen

and McCray.
                                     3
a blue bag with items from behind the counter, and asked Patel

where the money was located. Patel did not respond, so the men

began to beat Patel and continued to do so as they threatened to kill

Patel if he did not open the cash register. Surveillance video showed

one of the men who had a triangular birthmark on his right wrist

similar to McCray’s go through Patel’s pockets to remove money.

The men took Black and Mild cigars, Newport cigarettes, a cigarette

lighter, and Doritos chips from the store. Patel later died from his

gunshot wound.

     The surveillance recording showed the masked men leaving the

store around 9:15 p.m., and one of the masked men pointed a gun at

Kaine Darden,4 who was approaching the store. Several minutes

earlier, Darden had noticed a burgundy-colored Sebring parking in

the driveway of an abandoned house on Fourth Street and two men

walking toward the Melanie Inn. After the confrontation, Darden

observed the men running back in the direction of the car parked at



     4 This action served as the basis for the aggravated assault count that

did not merge with the malice murder conviction.
                                     4
the abandoned house.

     Allen and McCray were gone for less than ten minutes before

returning to Coalson’s car with a blue bag containing Black and Mild

cigars, cigarettes, and Doritos. Green observed McCray with a gun.

Allen and McCray directed Coalson to return to Rome. McCray gave

Coalson money and Black and Mild cigars and admitted that he and

Allen had robbed the convenience store in Summerville. McCray

also later told McCall that he and Allen robbed the convenience

store.

     Sometime later, police pulled over Coalson’s car because it

matched the description given by witnesses; the car was being

driven by Coalson’s boyfriend at the time. Coalson’s boyfriend gave

police consent to search the car, and during the search, officers found

an empty Doritos bag and Black and Mild cigars in the car. Police

also searched an apartment where Allen often stayed and found

Black and Mild cigars that had McCray’s fingerprints, a carton of

Kool cigarettes that also had McCray’s fingerprints and had a tax

stamp of Melanie Inn’s wholesaler (who sold those cigarettes to only

                                  5
two other locations in Georgia), pennies wrapped in the same paper

used at Melanie Inn, and a cigarette lighter that was similar to the

type taken from Melanie Inn.

     After he was arrested, Allen wrote to his girlfriend saying that

he had to come up with an alibi for the night of the murder and

instructing her to say that they were watching a movie from 8:00 to

10:00 p.m. Surveillance video showed that Allen was with McCray

and Coalson at a McDonald’s restaurant in Rome at 9:55 p.m. Allen

admitted to a cellmate that he robbed Melanie Inn and shot the

clerk.

         1. Neither Allen nor McCray challenges the sufficiency of the

evidence, but we have independently reviewed the evidence

presented at trial and conclude that the evidence was legally

sufficient to authorize a rational trier of fact to find beyond a

reasonable doubt that they were guilty of the crimes of which they

were convicted. See Jackson v. Virginia, 

 (

                                   6
2781, 61 LE2d 560) (1979).5

     2. Allen argues that the trial court erred in allowing the State

to introduce other acts evidence under OCGA § 24-4-404 (b) (“Rule

404 (b)”) that purportedly showed Allen’s participation in a robbery

in September 2014. We conclude that any error was harmless.

     Under Rule 404 (b), “[e]vidence 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[,]” but other acts evidence is

admissible for other purposes, including to prove intent, motive, and

absence of mistake or accident. To admit evidence under Rule 404

(b), the State must show three things: (1) that the evidence is

relevant to an issue in the case other than the defendant’s character;

(2) that the probative value of the evidence is not substantially

outweighed by its undue prejudice; and (3) that there is sufficient

proof for a jury to find by a preponderance of the evidence that the


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

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

 (4) (

) (2020). The Court began assigning cases to the
December term on August 3, 2020.
                                     7
defendant committed the other act. See Kirby v. State, 

 (

) (2018). We review the trial court’s admission of

other acts evidence for abuse of discretion. See 

     At a pre-trial hearing regarding the admissibility of the other

acts evidence, the State introduced evidence regarding a September

2014 robbery of a gas station in Rome. Three black males wearing

masks, two of whom were armed, severely beat the store clerk, yelled

and cursed at the clerk, forced the clerk to open the register, and

took money from the register. While the robbers were emptying the

cash register, one of the masked men put his gun on the counter and

left it there when the group exited the store. Allen’s fingerprint was

found on the magazine of the abandoned gun, and the man who left

that gun matched Allen’s physical description.

     The trial court admitted the other acts evidence for the purpose

of showing Allen’s intent. At trial, the State called a police officer

who investigated the 2014 robbery and a lab technician who testified

about the fingerprint analysis, and the State introduced into

evidence the surveillance video recording of the robbery.

                                  8
     On appeal, Allen challenges only the second and third prongs

of the Rule 404 (b) test. On the second prong, we note that the 2014

robbery was carried out in a manner similar to the charged crimes

here, which occurred almost two years later. But given the strong

evidence against Allen, there was not a significant prosecutorial

need to use the other acts evidence to prove intent to kill or rob,

when that issue was not meaningfully disputed. See Jackson v.

State, 

 (2) (b) (ii) (

) (2019). But even if

the probative value was low, we need not determine whether any

unfair prejudice substantially outweighed that low probative value,

because it is highly probable that the other acts evidence did not

change the outcome of the case. Likewise, as to the third prong, even

if there was insufficient evidence to establish by a preponderance of

the evidence that Allen committed the 2014 robbery, any error in

admitting the 2014 robbery evidence was harmless.

     Erroneous evidentiary rulings are subject to a harmless error

test. See Moore v. State, 

 (2) (

) (2019).

For a nonconstitutional ruling like the one at issue here, the test for

                                  9
determining harmless error is whether it is highly probable that the

error did not contribute to the verdict. See Smith v. State, 

 (2) (d) (

) (2016). In conducting that

analysis, we review the record de novo and weigh the evidence as we

would expect reasonable jurors to have done. See Moore, 

 (2).

     Here, the evidence against Allen was strong. Coalson said she

drove McCray and Allen to a location near the Melanie Inn, McCray

and Allen exited the car and walked in the direction of the

convenience store, and they returned about ten minutes later

carrying items that matched items taken during the robbery. Many

of these items were later found in an apartment where Allen often

stayed. Video surveillance showed one masked man pushing a

Melanie Inn customer to the floor while the other shot Patel. The

video surveillance also showed one of the masked men pointing a

gun upon exiting the store, and Darden testified that the weapon

was pointed at him. McCray’s then-girlfriend positively identified

Allen’s and McCray’s voices as belonging to the masked robbers, and

                                10
Allen admitted to a cellmate that he shot and killed the clerk while

robbing the Melanie Inn. Allen attempted to have his girlfriend

fabricate an alibi by saying they were together watching a movie

during the robbery, while surveillance video showed that he was

with McCray and Coalson at a McDonald’s restaurant soon after the

robbery. Given this evidence, it is highly probable that any error in

admitting the other acts evidence did not contribute to the verdicts.

See Williams v. State, 

 (3) (

)

(2017) (any error in admission of other acts was harmless given

overwhelming evidence against defendant).

     3. Allen next argues that the trial court committed plain error

by allowing McCall to testify about McCray’s out-of-court statement

that he robbed the store with Allen and by allowing an investigator

to repeat the statement in recounting an interview with McCall. See

OCGA § 24-1-103 (d) (providing for plain error review of alleged

evidentiary errors that were not preserved for ordinary review by a

timely objection at trial). Allen acknowledges that McCray’s

statement was admissible against McCray himself, but argues that

                                 11
McCray’s statement was not admissible against Allen because it was

hearsay and did not fit within a hearsay exception. The State argued

below that the statement fell within the co-conspirator hearsay

exception under OCGA § 24-8-801 (d) (2) (E) (“Rule 801 (d) (2) (E)”),

but now concedes that the trial court erred in admitting the

statement under that exception based on our decision in State v.

Wilkins, 

 (

) (2017), which was decided after

Allen and McCray’s trial. The State argues, however, that the trial

court’s error did not amount to plain error due to the strength of the

other admissible evidence of guilt. Allen’s claim fails.

     To establish plain error, Allen “must point to an error that was

not affirmatively waived, the error must have been clear and not

open to reasonable dispute, the error must have affected his

substantial rights, and the error must have seriously affected the

fairness, integrity, or public reputation of judicial proceedings.”

Denson v. State, 

 (2) (

) (2019)

(citation and punctuation omitted). Whether an error is clear or

obvious under this test is assessed at the time of the appellate

                                  12
court’s review. See Lyman v. State, 

 (2) (

) (2017). To show that a clear error affected his substantial

rights, Allen must make an “affirmative showing that the error

probably did affect the outcome below.” McKinney v. State, 

 (2) (b) (

) (2019) (citation and punctuation

omitted). If Allen fails to meet one element of the plain error test,

his claim fails. See Denson, 

 (2).

     Under Wilkins, hearsay statements that implicate a co-

conspirator but do not advance any object of the conspiracy, such as

statements that merely “spill the beans” about the conspiracy, are

not admissible under Rule 801 (d) (2) (E). See Wilkins, 

. Even assuming that the trial court erred in applying Rule

801 (d) (2) (E) based on Wilkins, however, Allen cannot establish

that the error “affected his substantial rights,” because he has not

made an affirmative showing that the error probably affected the

outcome of his trial. See McKinney, 

 (2) (b).

     Although Allen challenges McCray’s statement to McCall, who

then repeated it to an investigator, he did not challenge McCray’s

                                 13
statement to Coalson in which McCray admitted that he and Allen

committed the robbery. And the challenged statement was not only

cumulative of McCray’s unchallenged statement to Coalson, it was

also cumulative of Allen’s own statement to a cellmate admitting his

participation in the crime. See Anglin v. State, 

 (2)

(

) (2017) (“[T]he erroneous admission of hearsay is

harmless   where    substantial,    cumulative,   legally   admissible

evidence of the same fact is introduced.”); Rutledge v. State, 

 (2) (

) (2015) (no harm from admission of hearsay

that was “largely cumulative” of other properly admitted testimony).

Because the challenged statement was cumulative of other

unchallenged evidence and, as discussed above, the evidence against

Allen was strong, his plain error claim fails. See Hampton v. State,

 (2) (

) (2020) (rejecting plain error

claim regarding co-defendant’s out-of-court statements because any

error in admitting the statements was harmless where the

statements were cumulative of appellant’s confession to others that

he committed the crimes); Tyner v. State, 

 (4) (825

                                   

) (2019) (appellant could not show that admission of

hearsay affected his substantial rights given the overwhelming

evidence of his guilt); Davis v. State, 

 (4) (

) (2017) (concluding that even if a hearsay statement “was

deemed to be outside the co-conspirator exception to hearsay, its

admission into evidence was harmless as it was merely cumulative

of other evidence at trial”).

     4. Allen argues that the cumulative effect of the two trial court

errors argued above prejudiced him. We disagree.

     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.”

State v. Lane, 

 (1) (

) (2020). We assumed

above that the trial court erred in admitting the other acts evidence

and that the trial court’s error in admitting McCray’s hearsay

statement was clear error. We have yet to decide how multiple

standards for assessing prejudice may interact under cumulative

review of different types of errors, see 

 (4), and again we

                                   15
need not do so here, because Allen’s claims fail under any of the

standards. See Woodard v. State, 

 (2) (b) n.5

(

) (2015) (in examining whether a defendant has been

harmed by a legal error or by ineffective assistance of counsel, we

review the record de novo and weigh the evidence as we would expect

reasonable jurors to have done); see also Bozzie v. State, 

 (2) (a) (

) (2017) (explaining that nonconstitutional

harmless error review is similar to determining prejudice under

plain error review, in that we consider whether the error affected

the outcome of the trial).6

      It is not at all probable that the collective effect of the assumed

errors harmed Allen. As discussed above, the evidence against Allen

was very strong. Given this strong evidence, which Allen fails to

undermine on appeal, it is highly unlikely that the jury here was

swayed by the other acts evidence that Allen may have committed


      6 “For  nonconstitutional harmless error, the State has the burden to
show that it was highly probable that the error did not contribute to the
verdict. But to establish plain error, a defendant has the burden of making an
affirmative showing that the error probably did affect the outcome below.”
Bozzie, 

 (2) (a) (citations and punctuation omitted).
                                     16
another robbery even when considered in combination with

McCray’s statements implicating Allen in this robbery. See

Davenport v. State, 

 (3) (

) (2020)

(cumulative effect of presumed errors in admitting other acts

evidence and hearsay evidence did not collectively harm the

defendant where the evidence of guilt was very strong); see also

Daughtry v. State, 

 (2) (k) (

) (2015)

(cumulative effect of trial counsel’s errors did not harm appellant

given the overwhelming evidence of guilt).

     5. McCray argues that the trial court erred in failing to explain

adequately to him that he had the right to be present during bench

conferences during voir dire, jury selection, and other unspecified

portions of the trial. He argues that, because the trial court did not

ensure that he knew of this right, he could not be found to have

waived it. McCray’s claim fails.

     Under both the federal and state Constitutions, a criminal

defendant has a right to be present during critical stages of his trial.

See Illinois v. Allen, 

 (

, 25 LE2d 353)

                                   17
(1970); Brewner v. State, 

 (II) (

) (2017). A

“critical stage” is defined as “one in which a defendant’s rights may

be lost, defenses waived, privileges claimed or waived, or one in

which the outcome of the case is substantially affected in some other

way.” Fortson v. State, 

 (1) (

) (2000)

(citation and punctuation omitted). Bench conferences typically

involve purely legal or logistical issues, and thus generally do not

qualify as “critical stages” of a criminal proceeding. See Brewner,

 (II); Heywood v. State, 

 (3) (

) (2013). And as with other rights, a defendant is free to waive

the right to be present. See Ward v. State, 

 (4) (

) (2011). We have stated that

     [t]he right is waived if the defendant personally waives it
     in court; if counsel waives it at the defendant’s express
     direction; if counsel waives it in open court while the
     defendant is present; or if counsel waives it and the
     defendant subsequently acquiesces in the waiver.

 (citation and punctuation omitted).

     McCray’s claim fails for several reasons. First, McCray does

not identify any specific bench conferences that constituted a critical

                                  18
stage, nor does he point to any evidence showing what was

discussed.7 This claim, therefore, does not present a ground for a

new trial. See Daughtie v. State, 

 (5) (

)

(2015) (rejecting claim where nothing in the record indicated the

subject matter of the bench conference, and counsel could only

speculate as to what may have been discussed).

      Second, even if any of the bench conferences constituted a

critical stage, and McCray had a right to be present as a result, the

record shows that he was sufficiently informed of his right and

acquiesced in his absence. The available record from voir dire shows

that trial counsel confirmed to the court that he informed McCray

about the right to listen in on bench conferences. And the trial

transcript shows that, on at least two occasions, McCray was



      7  McCray argues that he does not even know if bench conferences
occurred during voir dire or jury selection because these proceedings were not
transcribed. Although not fully transcribed, parts of the jury selection process
were transcribed, and that record shows several bench conferences. The trial
itself was fully transcribed, but McCray does not point to a single instance at
trial of a bench conference that addressed matters such that the conference
would have constituted a critical stage, nor did he call trial counsel at the
motion for new trial hearing to provide any evidence as to what might have
been discussed at the bench conferences.
                                      19
advised by the trial court that he could approach the bench any time

the attorneys did. McCray was in the courtroom and fully aware of

his right to participate in the bench conferences, and his decision not

to participate shows acquiescence, at a minimum. See Murphy v.

State, 

 (2) (

) (2016) (“Acquiescence

may occur when counsel makes no objection and a defendant

remains silent after he or she is made aware of the proceedings

occurring in his or her absence.”).

     6. McCray next argues that the trial court erred in failing to

instruct the court reporter to transcribe the entirety of voir dire.

McCray argues that the plain terms of OCGA § 17-8-5 (a) require a

court reporter to take down or record the entirety of voir dire. But

our precedent holds otherwise for non-death penalty cases like

McCray’s, and he offers no compelling reason to overturn that

precedent.

     OCGA § 17-8-5 (a) provides that “[o]n the trial of all felonies

the presiding judge shall have the testimony taken down and, when

directed by the judge, the court reporter shall exactly and truly

                                  20
record or take stenographic notes of the testimony and proceedings

in the case, except the argument of counsel.” In State v. Graham,

 (

) (1980), this Court evaluated former

Code Ann. § 27-2401, the predecessor statute to OCGA § 17-8-5 (a);

the old statute is materially identical to the current statute at issue

here.8 There, the defendant in a non-death penalty case argued that

voir dire was a “proceeding” under the statute and that, therefore,

the voir dire should be reported and transcribed. Graham, 

 (noting that voir dire must be made part of record in death

penalty cases). This Court held that the term “proceedings” referred

to “objections, rulings and other matters which occur during the

course of the evidence as well as any post-trial procedures,” and that

the statute’s requirement was met in that case because the record

contained the objection and court ruling made during voir dire. 

      8 The General Assembly made a few purely stylistic changes, removing

several commas, in enacting OCGA § 17-8-5 (a), but otherwise the text
remained the same. Compare former Code Ann. § 27-2401 (“On the trial of all
felonies the presiding judge shall have the testimony taken down, and, when
directed by the judge, the court reporter shall exactly and truly record, or take
stenographic notes of, the testimony and proceedings in the case, except the
argument of counsel.”).
                                       21
at 342-343. We also stated that if a defendant wants a more complete

record of voir dire, he must make a specific request to that effect. Id.

This holding has been reiterated many times. See, e.g., McFarlane

v. State, 

 (2) (

) (2012); Walden v. State,

 (2) (

) (2011); Bryant v. State, 

 (4) n.18 (

) (1998); Brinkley v. State, 

 (4) (

) (2013); Vaughn v. State, 

 (7) (

) (1985).

      McCray argues that Graham’s interpretation of “proceedings”

is no longer good law, citing several instances in which the United

States Supreme Court and our Court of Appeals have referred to voir

dire as a proceeding. He argues that this common usage shows that

the plain meaning of “proceedings” as used in OCGA § 17-8-5

includes voir dire. But none of the decisions he cites actually held

anything about when voir dire must be recorded. We find no

compelling reason to reconsider Graham’s statutory construction.9


      9 The language at issue in Graham and here has been part of Georgia

law since 1876. See Ga. L. 1876, p. 133, § 1 (authorizing superior court judges

                                      22
See Etkind v. Suarez, 

 (5) (

) (1999)

(“Even those who regard ‘stare decisis’ with something less than

enthusiasm recognize that the principle has even greater weight

where the precedent relates to interpretation of a statute.” (citation

and punctuation omitted)); see also Illinois Brick Co. v. Illinois, 

 (

, 52 LE2d 707) (1977) (“[W]e must bear

in mind that considerations of stare decisis weigh heavily in the area

of statutory construction, where Congress is free to change this

Court’s interpretation of its legislation.”).

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




to appoint a reporter, or stenographic recorder, who had the duty “when
directed by the Judge . . . to exactly and truly record, or take stenographic notes
of, the testimony and proceedings in the case tried, except the argument of
counsel”). In determining the meaning of “proceedings,” the Graham Court
considered the historical context that revealed that voir dire had never been
made part of the record until this Court’s decision in Owens v. State, 

 (

) (1975), where this Court held that it was required for death
penalty cases under United States Supreme Court precedent.

                                        23
                   Decided November 16, 2020.

     Murder. Chattooga Superior Court. Before Judge Graham.
     Steven A. Miller, Christina R. Cribbs, for appellant (case no.
S20A1081).
     Karen H. Brouse, for appellant (case no. S20A1082).
     Herbert E. Franklin, Jr., District Attorney, Kevin J. Baugh,
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.




                                24