¶1In the Supreme Court of Georgia
¶2 Decided: February 15, 2021
¶3 S20A1093. SUGGS v. THE STATE.
¶4 BOGGS, Justice.
¶5 Appellant Kalvin Tyrone Suggs challenges his 2017 convictions
¶6for malice murder and other crimes in connection with the shooting
¶7death of Tony Harrison. Appellant contends that the evidence
¶8presented at his trial was legally insufficient to support his
¶9convictions. He also contends that the trial court erred in denying
¶10his pretrial motion regarding voir dire, thereby forcing him to
¶11question all the prospective jurors together; rejecting his challenge
¶12to an allegedly racially discriminatory peremptory strike; denying
¶13his motion in limine to exclude evidence derived from a surreptitious
¶14audio recording of a conversation; and admitting 21 crime scene and
¶15autopsy photographs. He further contends that the court did not
¶16follow the proper procedure when receiving a communication from the jury and that he was denied the effective assistance of counsel.
¶17For the reasons that follow, we affirm. 1
¶18 1. Viewed in the light most favorable to the verdicts, the
¶19evidence at trial showed the following. On the night of February 28-
¶20March 1, 2015, Appellant rode with his friend Patrick Pridgen to the
¶21Jackpot Club in the Sunset Plaza shopping center in Moultrie.
¶22Appellant was wearing black pants and a black and white shirt. At
¶23around 1:30 a.m., Appellant got into a fight with Harrison and
¶24 1 The shooting occurred on March 1, 2015. In September 2015, a Colquitt County grand jury indicted Appellant for malice murder, felony murder, aggravated assault, three counts of possession of a firearm during the commission of a felony, and two counts of possession of a firearm by a convicted felon (one for a firearm on the date of the shooting, and the other for a different firearm on the date of his arrest). In August 2016, Appellant entered a nonnegotiated guilty plea under North Carolina v. Alford, 400 U.S. 25 (91 SCt 160, 27 LE2d 162) (1970), to involuntary manslaughter in exchange for the State’s agreement to dismiss all other pending charges, which he withdrew in March 2017. At a December 2017 trial, the jury found Appellant guilty of all charges. In February 2018, the trial court sentenced Appellant to serve life in prison for malice murder, five years consecutive for possession of a firearm during the commission of a felony, and consecutive terms of five years each for the two felon-in-possession convictions. The felony murder verdict was vacated by operation of law, see Malcolm v. State, 263 Ga. 369, 371-372 (434 SE2d 479) (1993), and the court merged the other guilty verdicts. Appellant filed a timely motion for new trial, which he amended with new counsel in July 2019. After an evidentiary hearing, the court denied the motion in November 2019. Appellant filed a timely notice of appeal, and the case was docketed to this Court’s August 2020 term and submitted for decision on the briefs. 2 Harrison’s brother, Dontavious Jackson, and Harrison and Jackson
¶25severely beat Appellant. The club’s owner, Israel Shaw, helped
¶26break up the fight and told his bouncers to clear the club.
¶27 As the large crowd spilled into the parking lot, Timothy Davis
¶28offered Harrison and Jackson a ride home, and the three men
¶29walked to Davis’ car. Tamera Edwards drove up with her boyfriend
¶30and parked next to Davis. Harrison was standing between the two
¶31cars when gunfire erupted from a 9mm pistol one row over in the
¶32parking lot, striking the side of Edwards’ car and shattering her
¶33back window. Harrison pulled his own 9mm pistol and returned fire,
¶34getting off seven rounds before he was hit in the right upper chest
¶35and fell to the ground. The bullet that struck Harrison went through
¶36his right lung, windpipe, aorta, and left lung before exiting through
¶37his upper left arm. Appellant jumped into a Chevrolet Camaro
¶38convertible that his cousin was driving and was dropped off at the
¶39Northgate Apartments.
¶40 Harrison was pronounced dead at the scene. Law enforcement
¶41officers recovered two sets of 9mm shell casings from the parking lot
¶42 3 – seven shell casings from around and under Harrison’s body that
¶43matched the pistol lying by his left foot, and 12 shell casings nearby
¶44that were fired from a different 9mm pistol, which was never found.
¶45 At around 3:00 a.m. on March 1, 2015, Appellant called
¶46Pridgen, and Pridgen picked him up at the Northgate Apartments.
¶47At Appellant’s request, Pridgen drove Appellant to Appellant’s
¶48sister’s house in the Atlanta area, dropping him off at around 6:30
¶49a.m. before driving back to Moultrie. The next day, Appellant called
¶50Pridgen, who drove to Atlanta, picked up Appellant, and brought
¶51him back to Moultrie. Both on the way up to Atlanta and on the way
¶52back to Moultrie, Appellant told Pridgen that he was in the parking
¶53lot “ducking and shooting” after the club shut down on the night that
¶54Harrison was shot.
¶55 On the afternoon of March 3, Kaysha Trim agreed to meet with
¶56GBI agents at a cemetery in Moultrie to discuss the shooting. In an
¶57audio-recorded interview, which was later played for the jury, Trim
¶58told the agents that she knew Appellant and that she saw Harrison
¶59and Jackson beat him up inside the club. Trim said that after the
¶60 4 club closed, she was in the parking lot walking to her car when she
¶61saw Appellant, who was standing near her car, fire multiple shots
¶62in Harrison’s direction and saw Harrison fall to the ground.
¶63 Later that afternoon, Appellant contacted the GBI to make a
¶64statement. Appellant told agents that Harrison and Jackson beat
¶65him up inside the club and that he passed two police officers on his
¶66way out but did not report the fight to them.2 Appellant claimed that
¶67he was walking toward Pridgen’s car when the shooting started, that
¶68he ran to the other end of the parking lot, and that someone he did
¶69not know picked him up in a black truck and drove him to his ex-
¶70girlfriend’s house, where he stayed in seclusion in a shed in her
¶71backyard for the next two days without her knowledge. Appellant
¶72said that when he left the shed, he went to his parents’ house, where
¶73he was notified that law enforcement was requesting to speak with
¶74him. Appellant could not describe the individual who picked him up
¶75or the truck (beyond the fact that it was black), he did not know how
¶76 2 Two off-duty Moultrie Police Department officers were working a security detail for the club in the parking lot that night. 5 the driver knew to take him to his ex-girlfriend’s house, and his
¶77description of the inside of the shed did not match what GBI agents
¶78found when they searched it after the interview ended. Appellant
¶79turned over khaki pants and a red shirt that he claimed he was
¶80wearing at the time of the shooting.
¶81 On March 5, the GBI received cell phone tower location records
¶82for Appellant’s and Pridgen’s phones. During an interview with
¶83Pridgen, GBI agents confronted him with the records, and Pridgen
¶84admitted that he drove Appellant to Atlanta after the shooting and
¶85brought him back to Moultrie the next day. Pridgen agreed to go
¶86speak with Appellant and record him with a device provided by the
¶87GBI. Shortly after 5:00 p.m., Pridgen went to the home of one of
¶88Appellant’s relatives and spoke to Appellant, who asked Pridgen
¶89what he told the GBI and whether the GBI asked him about a gun.
¶90Appellant told Pridgen to contact the GBI and say that he lied about
¶91taking Appellant to Atlanta after the shooting and that he instead
¶92took someone else who had Appellant’s phone. An audio recording of
¶93the conversation was later played for the jury.
¶94 6 At 7:06 p.m. on March 5, Appellant was riding with his father
¶95in his father’s truck when a GBI agent conducted a traffic stop and
¶96arrested Appellant. During a search of the truck, the agent found a
¶97loaded firearm in the passenger-side door compartment next to
¶98where Appellant was sitting, which Appellant, as a convicted felon,
¶99was not allowed to possess.
¶100 Appellant contends that the evidence was legally insufficient
¶101to support his convictions. When viewed in the light most favorable
¶102to the verdicts, however, the evidence presented at trial and
¶103summarized above was sufficient as a matter of constitutional due
¶104process to authorize a rational jury to find Appellant guilty beyond
¶105a reasonable doubt of the crimes for which he was convicted. See
¶106Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
¶107(1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009)
¶108(“‘It was for the jury to determine the credibility of the witnesses and
¶109to resolve any conflicts or inconsistencies in the evidence.’” (citation
¶110omitted)).
¶111 7 2. Appellant contends that the trial court erred in denying
¶112his pretrial motion to conduct individual voir dire of the prospective
¶113jurors one-by-one or, alternatively, in panels of 12 at a time, thereby
¶114forcing him to conduct individual voir dire of all the prospective
¶115jurors together. Appellant relies on Lahr v. State, 239 Ga. 813 (238
¶116SE2d 878) (1977), where this Court stated that “voir dire questions
¶117are propounded to panels of 12 and defendant can question them in
¶118panels of 12 or individually but not en masse to the entire group of
¶11948 jurors at one time.” Id. at 814.
¶120 The trial transcript shows that the court divided the
¶121prospective jurors into groups of 12 and sat them in separate
¶122locations in the courtroom for voir dire. After the jury had been
¶123selected and the remaining prospective jurors were excused,
¶124Appellant complained that the court denied him the right to conduct
¶125individual voir dire with panels of 12 prospective jurors at a time.
¶126The court replied, “You did have that right, sir, you could have done
¶127it if you wanted to. They were sitting in panels of 12, if I’m not
¶128mistaken. Is that not true? I intentionally sat them in groups of 12,”
¶129 8 and Appellant acknowledged that the jurors were sitting in panels
¶130of 12. In its order denying Appellant’s new trial motion, the trial
¶131court stated that Appellant “was told that he could question each
¶132panel completely before moving to the next panel if he so wished
¶133rather than en masse,” and found that if Appellant questioned all
¶134the prospective jurors at one time, “that was a choice he made, not
¶135a directive of the court.” Thus, Appellant has failed to show error.
¶136See Perez v. State, 258 Ga. 343, 344 (369 SE2d 256) (1988) (finding
¶137no reversible error where, in response to defendant’s request to voir
¶138dire prospective jurors in panels of 12 at a time, trial court said,
¶139“Well, you will have this twelve here, that twelve there and that
¶140twelve there”).
¶141 3. Appellant claims that the trial court erred in rejecting his
¶142challenge under Batson v. Kentucky, 476 U.S. 79 (106 SCt 1712, 90
¶143LE2d 69) (1986), to the State’s peremptory strike of an African-
¶144American prospective juror, Juror 33. Batson established a three-
¶145step process for evaluating claims of racial discrimination in the use
¶146of peremptory strikes:
¶147 9 (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent’s] discriminatory intent.
¶148Heard v. State, 295 Ga. 559, 566 (761 SE2d 314) (2014) (citation
¶149omitted). Appellant’s Batson claim focuses on step two.
¶150 After Appellant raised his Batson challenge, the State
¶151explained that it struck Juror 33 because of photographs on her
¶152Facebook page that showed her “throwing up gang signs” and with
¶153marijuana, which a GBI special agent discovered while looking up
¶154all the prospective jurors on Facebook. Appellant argues that the
¶155trial court erred in concluding that the State gave a race-neutral
¶156explanation for striking Juror 33, because the State’s explanation
¶157was not reasonable or plausible and was not based on Juror 33’s
¶158conduct, mannerisms, or responses during voir dire. However,
¶159contrary to Appellant’s argument, the second step of the Batson
¶160process
¶161 does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the
¶162 10 issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”
¶163Purkett v. Elem, 514 U.S. 765, 768 (115 SCt 1769, 131 LE2d 834)
¶164(1995) (citation omitted). Moreover, the reasons for striking
¶165prospective jurors need not come only from voir dire. See Johnson v.
¶166State, 302 Ga. 774, 781 (809 SE2d 769) (2018).
¶167 The State’s proffered reason for striking Juror 33 – that she
¶168had photographs on her Facebook page showing her making gang
¶169signs and with marijuana – was race-neutral. See Smith v. State,
¶170264 Ga. 449, 449-451 (448 SE2d 179) (1994) (holding that
¶171prospective juror’s residence in public housing project where gang
¶172activity was prevalent was race-neutral explanation for peremptory
¶173strike); Franklin v. State, 305 Ga. App. 574, 577 (699 SE2d 868)
¶174(2010) (holding that prospective juror’s involvement with drugs was
¶175race-neutral explanation for peremptory strike). Accordingly,
¶176Appellant’s Batson claim fails.
¶177 11 4. Appellant also claims that the trial court erred in denying
¶178his motion in limine to exclude the audio recording that Pridgen
¶179secretly made of a conversation that he had with Appellant.
¶180Appellant relies on OCGA § 16-11-67, which says: “No evidence
¶181obtained in a manner which violates any of the provisions of this
¶182part [i.e., OCGA §§ 16-11-60 to 16-11-70] shall be admissible in any
¶183court of this state except to prove violations of this part.” However,
¶184the provision that governs audio recordings is OCGA § 16-11-62 (1),
¶185which says: “It shall be unlawful for . . . [a]ny person in a clandestine
¶186manner intentionally to overhear, transmit, or record . . . the private
¶187conversation of another which shall originate in any private place.”
¶188(Emphasis added.) It is well established that OCGA § 16-11-62 (1)
¶189“does not prohibit one party to a conversation from secretly
¶190recording or transmitting it without the knowledge or consent of the
¶191other party.” State v. Birge, 240 Ga. 501, 501 (241 SE2d 213) (1978)
¶192(interpreting predecessor to OCGA § 16-11-62 (1)). Accord Fetty v.
¶193State, 268 Ga. 365, 366 (489 SE2d 813) (1997). Thus, Pridgen did not
¶194violate OCGA § 16-11-62 (1) when he made the audio recording of
¶195 12 his conversation with Appellant, and OCGA § 16-11-67 did not
¶196require the trial court to exclude the recording.
¶197 5. Appellant asserts that the trial court erred in admitting
¶19821 crime scene and autopsy photographs, because “[t]he
¶199photographs of the bodies at the crime scene were repetitious of
¶200others,” and “[t]here were autopsy photographs that . . . showed
¶201parts of the body which had no relevance to the crime alleged . . .
¶202and were introduced only to inflame the minds of the jury.” However,
¶203more than 60 crime scene and autopsy photographs were admitted
¶204without objection at Appellant’s trial, and Appellant has failed to
¶205identify, by citation to the relevant pages in the record, which
¶206specific subset of 21 photographs he is challenging, as required by
¶207this Court’s rules. See Supreme Court Rule 19 n.1 (“[F]or
¶208briefs, . . . page references to the record (R-) and transcript (T-) are
¶209essential.”). Moreover, his descriptions of what the 21 challenged
¶210crime scene and autopsy photographs depict, considered in light of
¶211his stated bases for challenging them, are simply too vague to enable
¶212this Court to isolate and evaluate the 21 allegedly objectionable
¶213 13 photographs. See Henderson v. State, 304 Ga. 733, 739 (822 SE2d
¶214228) (2018) (“It is not this Court’s job to cull the record on behalf of
¶215Appellant to find alleged errors . . . .” (citation and punctuation
¶216omitted)); Roberson v. State, 300 Ga. 632, 636 (797 SE2d 104) (2017)
¶217(“It is well established that the burden is on the party alleging error
¶218to show it by the record . . . .” (citation and punctuation omitted)).
¶219Accordingly, this claim provides no basis for reversal. See
¶220Westmoreland v. State, 287 Ga. 688, 696 (699 SE2d 13) (2010)
¶221(finding no basis for reversal where defendant challenged admission
¶222of “unspecified photographs ‘of individuals that were not in issue’”).
¶223 6. Appellant also asserts that the trial court did not follow
¶224the proper procedure when receiving a communication from the jury
¶225during deliberations, citing Lowery v. State, 282 Ga. 68 (646 SE2d
¶22667) (2007). Lowery requires trial courts to ensure that jury
¶227communications are submitted to the court in writing, to mark any
¶228written communication as a court exhibit in the presence of counsel,
¶229to afford counsel a full opportunity to suggest an appropriate
¶230response, and to make counsel aware of the substance of the court’s
¶231 14 intended response so that counsel may seek modifications to the
¶232response before the jury is exposed to it. See id. at 76. See also
¶233Burney v. State, 299 Ga. 813, 819 n.6 (792 SE2d 354) (2016)
¶234(discussing required procedure for jury communications to court
¶235from outside courtroom).
¶236 Here, less than two hours into deliberations, the jury sent the
¶237court a note that said: “Due to his personal view of evidence
¶238presented, one juror feels uncomfortable making a decision based on
¶239the evidence present.” The trial transcript shows that the court
¶240marked this written jury communication as a court exhibit in the
¶241presence of counsel and discussed the note and the court’s intended
¶242response with counsel before bringing in the jury, thereby affording
¶243counsel a full opportunity to seek any desired modifications before
¶244the jury was recharged.
¶245 Appellant does not challenge the substance of the recharge
¶246given to the jury in response to the jury note. Instead, he claims that
¶247the trial court failed to follow the procedure prescribed by Lowery for
¶248handling jury notes. But the record reflects that the trial court
¶249 15 complied with Lowery. Moreover, Appellant did not object at trial to
¶250the procedure that the court followed in handling the jury note here.
¶251Cf. Lowery, 282 Ga. at 73 (noting that trial counsel “voiced objection
¶252to the trial court’s action”). Appellant therefore waived this claim
¶253and is not entitled even to plain error review. See Miller v. State,
¶254302 Ga. 118, 120 n.2 (805 SE2d 22) (2017) (holding that plain error
¶255review is limited “to only certain types of errors, namely, (1) alleged
¶256errors in the sentencing phase of a death penalty trial; (2) certain
¶257improper comments by the trial judge in violation of OCGA § 17-8-
¶25857; (3) errors in jury instructions; and (4) evidentiary errors in trials
¶259occurring after January 1, 2013”). See also OCGA § 17-8-58 (b)
¶260(authorizing plain error review of any “portion of the jury charge”).
¶261 7. Appellant contends that he was denied the effective
¶262assistance of counsel, pointing to numerous alleged errors by his
¶263trial counsel. A defendant’s claim that his attorney’s assistance was
¶264so inadequate as to require reversal of his conviction must prove
¶265both that the attorney’s performance was professionally deficient
¶266and that this deficiency resulted in prejudice to his case. See
¶267 16 Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d
¶268674) (1984). To establish deficient performance, the defendant must
¶269show that his counsel’s acts or omissions were objectively
¶270unreasonable, considering all the circumstances at the time and in
¶271the light of prevailing professional norms. See id. at 687-690. To
¶272establish prejudice, the defendant must show “a reasonable
¶273probability that, but for counsel’s unprofessional errors, the result
¶274of the proceeding would have been different. A reasonable
¶275probability is a probability sufficient to undermine confidence in the
¶276outcome.” Id. at 694. We need not address both components of the
¶277inquiry if the defendant makes an insufficient showing on one. See
¶278id. at 697.
¶279 (a) Appellant points first to his trial counsel’s alleged failure
¶280to adequately investigate the case. However, Appellant has not
¶281suggested, much less shown, what further investigation would have
¶282revealed or how it would have helped his defense. Thus, even if
¶283counsel had conducted an inadequate investigation, Appellant has
¶284failed to prove the required prejudice. See Long v. State, 309 Ga.
¶285 17 721, 728 (848 SE2d 91) (2020) (holding that in order to establish
¶286prejudice from failure to adequately investigate case, defendant
¶287must “‘at least make a proffer as to what additional investigation
¶288would have uncovered’” (citation omitted)).
¶289 (b) Appellant also points to his trial counsel’s conduct in
¶290connection with a plea agreement that Appellant entered into but
¶291was later allowed to withdraw. The record shows that on the eve of
¶292the scheduled trial, Appellant’s trial counsel met in chambers with
¶293the prosecutor and the judge to discuss a potential plea agreement,
¶294and the prosecutor verbally agreed to allow Appellant to enter a
¶295guilty plea to involuntary manslaughter as a lesser included offense
¶296of malice murder in exchange for the dismissal of the remaining
¶297charges. Appellant claims that the prosecutor also agreed that
¶298Appellant would be sentenced to time served, and that his trial
¶299counsel was constitutionally deficient in failing to get this
¶300agreement, with the promise of no additional jail time, reduced to
¶301writing.
¶302 18 The record does not bear out Appellant’s claim that the
¶303prosecutor verbally agreed to a sentence of time served. At a plea
¶304hearing a few days after the meeting in chambers, Appellant
¶305confirmed, with his trial counsel present, that he understood that
¶306“the maximum penalty the Court could impose” under the plea
¶307agreement was “ten years in the state penal system.” The court also
¶308explicitly advised Appellant that his sentencing would take place at
¶309a later date, that the court was requesting a presentence
¶310investigation, that Appellant should provide to his trial counsel
¶311“[a]ny information you want me to review prior to that sentencing,”
¶312and that Appellant would be placed on an ankle monitor and allowed
¶313to live with his parents “until sentencing.” Moreover, although
¶314Appellant’s trial counsel testified at the motion for new trial hearing
¶315that “according to the agreement, there would be a PSI [i.e.,
¶316presentence investigation], but [Appellant] would not be sentenced
¶317to any more prison,” counsel admitted that after the meeting in
¶318chambers, neither the prosecutor nor the judge remembered any
¶319 19 verbal agreement for Appellant to be sentenced to time served. Thus,
¶320Appellant has failed to show deficient performance.
¶321 (c) Finally, in a single paragraph of his ten-page brief,
¶322Appellant recites a litany of decisions by his trial counsel that he
¶323asserts constituted deficient performance. Appellant contends that
¶324his trial counsel was constitutionally deficient in failing to object to
¶325the qualifications of two expert witnesses; failing to file “any type”
¶326of motion or ask for “any pretrial hearing” regarding software used
¶327by one of the expert witnesses; failing to seek funding to hire a
¶328firearms expert; failing to object to the admission of the 21
¶329unspecified crime scene and autopsy photographs discussed above;
¶330and failing to request that the court reporter transcribe the entirety
¶331of voir dire. However, “‘[s]uch after the fact disagreements about
¶332trial counsel’s approach to the case . . . do not amount to a showing
¶333of ineffective assistance of trial counsel.’” Armour v. State, 290 Ga.
¶334553, 555-556 (722 SE2d 751) (2012) (citation omitted). Moreover,
¶335Appellant has made “no effort to show that such conduct was the
¶336product of anything other than reasonable trial strategy or to
¶337 20 establish that any of these [alleged] shortcomings, individually or in
¶338the aggregate, had any effect on the outcome of the trial.” McDonald
¶339v. State, 296 Ga. 643, 646 (770 SE2d 6) (2015). Accordingly,
¶340Appellant has failed to carry his burden to show that he was denied
¶341the effective assistance of counsel.
¶342 Judgment affirmed. All the Justices concur.
¶343 21