310 Ga. 770 - Lofton v. State

¶2 Decided: February 15, 2021

¶3 S20A1101. LOFTON v. THE STATE.

¶4 ELLINGTON, Justice.

¶5 A jury found Hakim Lofton guilty of malice murder and

¶6possession of a firearm in connection with the shooting death of

¶7Jason Walker.1 On appeal, Lofton challenges the sufficiency of the

¶8 1 The shooting occurred on October 10, 2013. A Fulton County grand jury returned an indictment on January 14, 2014, charging Lofton with malice murder (Count 1), felony murder predicated on armed robbery (Count 2), felony murder predicated on aggravated assault (Count 3), armed robbery (Count 4), aggravated assault (Count 5), and possession of a firearm during the commission of a felony (Count 6) predicated on Counts 1 through 5. At a jury trial commencing on September 22, 2014, Lofton was found not guilty on Counts 2 and 4 and guilty on the remaining counts. By judgment entered on September 30, 2014, the trial court sentenced Lofton to life in prison for murder (Count 1) and five years in prison for the firearm charge (Count 6) to run consecutively. Count 5 merged with Count 1. The judgment indicated that Count 3 also merged with Count 1, although it was actually vacated by operation of law. See Bradley v. State, 305 Ga. 857, 858 n.1 (828 SE2d 322) (2019). Lofton filed a timely motion for a new trial, which he amended on June 6, 2016, and April 22, 2019. After a hearing, the trial court denied the motion for a new trial on August 8, 2019. Lofton filed a timely notice of appeal, and his appeal was docketed in this Court for the August 2020 term and submitted for decision on the briefs. evidence and contends that the trial court erred in admitting cell-

¶9site location information that was obtained without a warrant, in

¶10failing to instruct the jury regarding the corroboration required for

¶11accomplice testimony, in allowing certain exhibits to go out with the

¶12jury, and in rejecting his claim that there was racial discrimination

¶13in jury selection. Lofton also contends that he received ineffective

¶14assistance of counsel. For the reasons explained below, we affirm.

¶15 1. Lofton contends that the evidence that he was the person

¶16who shot Walker was entirely circumstantial and that it was

¶17insufficient to prove identity beyond a reasonable doubt.

¶18Specifically, he argues that the only eyewitness to the shooting,

¶19Joseph Eatmon, lacked credibility and, at any rate, was unable to

¶20positively identify him as the shooter. The rest of the State’s

¶21evidence, Lofton argues, can only prove that he was associated with

¶22Eatmon and Walker and that he was in the area of the crimes when

¶23they happened.

¶24 When reviewing the sufficiency of the evidence as a matter of constitutional due process, we view the evidence in the light most favorable to the verdicts, see Jackson v.

¶25 2 Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979), and do not resolve conflicts in the evidence, leaving those within the province of the jury. In addition, as a matter of Georgia statutory law, where a conviction is based on circumstantial evidence, . . . the evidence must “not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6. Whether an alternative hypothesis is reasonable or whether the circumstantial evidence excludes every reasonable hypothesis save that of guilt is left to the jury, and this Court will not disturb that finding unless it is insupportable as a matter of law.

¶26Schell v. State, __ Ga. __, __ (Case No. S20A1383, decided Dec. 7,

¶272020) (citations and punctuation omitted).

¶28 Viewed in this manner, the evidence shows the following. In

¶292013, Walker frequently asked his friend, Eatmon, to connect him

¶30with someone who would sell him Xanax tablets, and Eatmon

¶31brokered transactions for Walker approximately 25 to 30 times. On

¶32October 8, 2013, Eatmon brokered such a transaction with Cedric

¶33Brown. Walker and Eatmon met Brown at a QuikTrip station on

¶34Upper Riverdale Road, where Walker bought approximately 30

¶35tablets of Xanax that had been prescribed to Brown’s girlfriend’s

¶36mother.

¶37 3 The next day, October 9, Walker wanted to buy a much larger

¶38quantity of Xanax. Eatmon called Brown, and Brown said that he

¶39might know someone who could fill the order. Brown called Lofton,

¶40whom he knew as Lil Tony and who lived in the same area of

¶41Riverdale as Brown. Brown told Lofton about Eatmon’s request and

¶42asked if he could give Eatmon Lofton’s number. Lofton agreed, and,

¶43after Brown gave Eatmon the number, Brown had no more

¶44involvement in that sale. Eatmon called Lofton that evening and set

¶45up a meeting for the transaction the following day.

¶46 Eatmon and Lofton agreed to meet at the College Park transit

¶47station between 7:00 and 8:00 a.m. on October 10. Walker picked up

¶48Eatmon in his white Honda between 7:30 and 7:45 a.m. Lofton called

¶49Eatmon while Eatmon and Walker were en route to the College Park

¶50station, said he was running late, and changed the meeting place to

¶51a bus stop on Washington Road near Camp Creek Parkway. Eatmon

¶52told Lofton they were near that intersection and would pull into the

¶53Chevron station near the bus stop.

¶54 The bus arrived a few minutes later, and a solitary passenger

¶55 4 got off. Based on their recent phone calls, Eatmon deduced that the

¶56passenger was Lil Tony and waved him over to Walker’s car. Lil

¶57Tony got into the backseat behind Eatmon and told Walker to

¶58continue on Washington Road to an apartment complex off of

¶59Spanish Trail. Walker stopped at a Chevron station near the

¶60apartments, and Eatmon got out and went into the convenience

¶61store. When Eatmon came out of the store, he saw that Walker had

¶62parked at the apartments, and Eatmon followed on foot. As Eatmon

¶63approached Walker’s car, he saw Lil Tony exit the car on the

¶64passenger side, pull a gun out of his jacket, shoot into the car, and

¶65then run away. When Eatmon reached the car, Walker told Eatmon

¶66that he had been shot and asked Eatmon to take him to the hospital.

¶67Walker moved into the passenger seat, Eatmon got into the driver’s

¶68seat, and Eatmon called 911 as he drove to South Fulton Hospital.

¶69During the drive, Walker asked Eatmon not to tell anyone about the

¶70drug deal, because he did not want his family to know about his

¶71continuing drug addiction.

¶72 When Eatmon and Walker reached the hospital, they were met

¶73 5 by East Point police officers. Walker was taken inside for treatment,

¶74and Eatmon spoke briefly with two East Point police department

¶75detectives at the hospital and then went with them to the police

¶76station for questioning. Eatmon told the detectives that he had been

¶77taking Walker to see a prostitute at a motel and that Walker was

¶78shot in a robbery at the Chevron station on Washington Road near

¶79Camp Creek Parkway. Eatmon signed a written summary of his

¶80statement.

¶81 Walker died at the hospital at about 5:00 p.m. on the day he

¶82was shot. After learning that Walker did not survive, Eatmon told

¶83the detectives that the parts of his previous oral and written

¶84statements about the prostitute and about Walker being shot in a

¶85robbery had been lies, which he told because Walker had asked him

¶86to conceal his drug habit from his family. Eatmon said that he and

¶87Walker had actually met a drug dealer so Walker could purchase

¶88Xanax, and that the dealer shot Walker. Eatmon gave the actual

¶89location for the shooting. He told the detectives that the only name

¶90he had for the dealer was “Lil Tony” and gave them the phone

¶91 6 number he had used to communicate with Lil Tony. Eatmon also

¶92informed them that he was introduced to Lil Tony through Brown,

¶93and he gave the detectives Brown’s phone number.

¶94 That day, the detectives interviewed Brown at his home in

¶95Riverdale and he told them about giving Lil Tony’s phone number to

¶96Eatmon for the drug deal, which was the same phone number

¶97Eatmon used to contact Lil Tony. Brown told the detectives that Lil

¶98Tony lived near him, on Ridge Trail, in a house he described. Based

¶99on the information that Brown gave, the detectives were able to

¶100determine Lil Tony’s address on Ridge Trail. Because that address

¶101was in Clayton County, the detectives contacted the Clayton County

¶102police department for information about the residents. The

¶103detectives learned the legal name of Lil Tony, and the Clayton

¶104County police provided a booking photo of Lofton.

¶105 The detectives prepared a photo lineup that included Lofton’s

¶106booking photo, and they showed it to Brown on October 14. He

¶107immediately and positively identified Lofton as the person he knew

¶108as Lil Tony. The detectives also showed Eatmon a photo lineup, and

¶109 7 Eatmon picked Lofton’s picture, although his identification was

¶110uncertain. The next day, the detective applied for a warrant to arrest

¶111Lofton for Walker’s murder. Lofton was arrested by United States

¶112marshals at his home on October 16. That same day, the detectives

¶113and other officers executed a search warrant for Lofton’s home. They

¶114found more than 70 .22-caliber long rifle hollow-point rounds and

¶115three .22-caliber shell casings in Lofton’s bedroom, which was the

¶116same type of bullet that killed Walker and was removed from his

¶117body during his autopsy. No firearm was found in Lofton’s home.

¶118 At trial, Brown identified Lofton as the drug dealer whom he

¶119knew as Lil Tony and whose phone number he gave to Eatmon for

¶120the drug deal. Eatmon could not specifically identify Lofton as the

¶121drug dealer Lil Tony whom he met minutes before he saw the dealer

¶122shoot Walker, but he described Lil Tony as a black male, in his early

¶12320s, 5’ 8” to 5’ 9” tall, who was wearing a black jacket, blue jeans,

¶124and a hoody, with the hood pulled up when Eatmon met him.

¶125Eatmon testified that he had just “glanced at [Lil Tony’s] face” when

¶126he and Walker picked him up at the Chevron station on the day of

¶127 8 the shooting. He testified that during the photo lineup he chose the

¶128photo of the one who looked “similar” to Lil Tony.

¶129 The State introduced MetroPCS records, including subscriber

¶130information and call logs that included cell-site location information,

¶131for cell phones used by Eatmon, Brown, and Lofton. The phone

¶132records, together with the testimony of a records custodian who was

¶133qualified as an expert in MetroPCS’s recordkeeping practices,

¶134showed that Eatmon’s and Brown’s phones exchanged calls on

¶135October 8 and 9, and that, at the same time on October 8, both of

¶136their phones connected to a cell tower near the QuikTrip station on

¶137Upper Riverdale Road where they met for the drug deal that day.

¶138The phone records also showed that, after Eatmon’s phone called

¶139Brown’s phone on October 9, Brown’s phone called Lofton’s phone,

¶140then Brown’s phone called Eatmon’s phone, then Eatmon’s phone

¶141called Lofton’s phone. Lofton’s phone exchanged calls with Eatmon’s

¶142phone and with Brown’s phone additional times that night. The

¶143phone records showed that on October 10, the day of the shooting,

¶144Lofton’s phone called Eatmon’s phone at 7:11 a.m., and they

¶145 9 exchanged calls an additional eight times over the next 90 minutes;

¶146cell-site location information showed that Lofton’s phone was on the

¶147move during that interval. At the time of their last call, 8:40 a.m.,

¶148Lofton’s phone called Eatmon’s phone, and the call lasted less than

¶149one minute; both Lofton’s phone and Eatmon’s phone connected to

¶150Sector 3 of Tower 109, located at 3485 Desert Drive in East Point,

¶151which is near the Chevron station where Walker and Eatmon picked

¶152up Lofton. At 8:49 a.m., Lofton’s phone connected to Sector 2 of

¶153Tower 422, located at 4399 S. Commerce Drive in East Point, which

¶154was the nearest cell site to where Walker was fatally shot. Two

¶155minutes later, at 8:51 a.m., Eatmon’s phone called 911. The nearest

¶156cell site at the beginning of the call was also Sector 2 of Tower 422.

¶157By the end of the 911 call, Eatmon, while driving Walker to the

¶158hospital, was back in range of Sector 3 of Tower 109.

¶159 Assuming without deciding that the evidence of Lofton’s guilt

¶160was entirely circumstantial, the State presented sufficient evidence

¶161to support the convictions, despite the inability of the only

¶162eyewitness to the shooting, Eatmon, to positively identify him and

¶163 10 despite any purported deficits in Eatmon’s credibility. 2 Brown

¶164positively identified Lofton as the drug dealer he knew as Lil Tony;

¶165his information led detectives to Lofton’s residence; and Brown’s

¶166testimony connected Lofton to Eatmon and to the October 10

¶167planned drug deal involving Walker. Phone records for Lofton,

¶168Eatmon, and Brown supported the testimony of Eatmon and Brown

¶169about the communications among them on the day of the shooting

¶170and the days before and after. And the MetroPCS records placed

¶171Lofton’s phone at the location of the shooting at the time of the

¶172shooting. Thus, the evidence presented at trial was both sufficient

¶173to allow a rational jury to find beyond a reasonable doubt that Lofton

¶174was guilty of the crimes for which he was convicted, as required by

¶175due process, and to reject any hypothesis save that of his guilt for

¶176 2 At trial, Lofton argued during closing argument that Eatmon was not credible, based on several factors: Eatmon was a convicted felon; he lied during the trial about his criminal past; he admitted that he initially lied to the detectives about details of the incident; the security video from the first Chevron station did not confirm his testimony (because it did not show a white Honda in the parking lot on the morning of October 10); and no forensic evidence confirmed his testimony about the location of the shooting. Lofton also argued that the investigation was flawed in that the detectives did not treat Eatmon, Brown, or others as potential suspects. 11 those crimes, as required by OCGA § 24-14-6. See Payne v. State,

¶177 273 Ga. 317, 318 (1) (540 SE2d 191) (2001) (evidence sufficient to

¶178authorize rational trier of fact to find accused guilty beyond a

¶179reasonable doubt of murder and possession of a knife and to exclude

¶180every reasonable inference and hypothesis except guilt of accused,

¶181despite lack of any eyewitness testimony that defendant stabbed

¶182victim or that he possessed a knife).

¶183 2. Lofton contends that the trial court erred in denying his

¶184motion to suppress his cell phone records and all of the evidence

¶185derived from those phone records. At the hearing on Lofton’s motion

¶186to suppress, one of the East Point detectives who investigated the

¶187shooting testified as follows. About 12 hours after the shooting, she

¶188spoke with a MetroPCS representative and told the representative

¶189that there had been a murder that morning, that the detective had

¶190a phone number for the suspect (the number Eatmon and Brown

¶191used to contact the drug dealer they knew as Lil Tony), and that she

¶192needed information from the suspect’s account. The detective

¶193explained that there was a witness who was known to the suspect

¶194 12 and could be harmed while the suspect was still at large. The

¶195MetroPCS representative emailed an “Exigent Circumstance

¶196Request” form for the detective to complete. On the request form,

¶197the detective requested subscriber data for the target phone number

¶198and asked for call-detail records, including cell sites, 3 for the day of

¶199the shooting and the three previous days. The detective described

¶200the “nature of the emergency” by stating that a murder victim “had

¶201contact with his murderer through the target number.” The form

¶202included the statement, “I hereby attest that the information

¶203provided above, to the best of my knowledge, is true and accurate

¶204and that . . . an emergency situation exists that involves . . .

¶205 3 A “cell site” typically consists of a set of either three or six directional radio antennas mounted on a tower, light post, flagpole, church steeple, or side of a building. See Carpenter v. United States, __ U. S. __, __ (I) (A) (138 SCt 2206, 2211, 201 LE2d 507) (2018). Unless powered off, a cell phone continuously scans its environment looking for the strongest signal, which generally comes from the nearest cell site. See id. Each time a phone connects to a cell site, the connection generates a time-stamped digital record in the service provider’s account records that includes the particular cell site and the specific antenna activated (“sector” information); such records are known as cell-site location information. See id. Service providers generally maintain account-specific data, including cell-site location information, for long periods of time. See id. at __ (III) (A) (138 SCt at 2218) (wireless carriers “currently maintain records for up to five years”). 13 immediate danger of death or serious bodily injury to a person[.]”

¶206 First, Lofton argues that the detective’s initial, warrantless

¶207acquisition of his cell phone records on the day of the shooting,

¶208including four days of historical cell-site location information

¶209(“CSLI”), was a search under the Fourth Amendment, because a cell

¶210phone user has a reasonable expectation of privacy in historical

¶211CSLI for his phone. Second, Lofton argues that the trial court erred

¶212in finding that the warrantless search of his cell phone records was

¶213justified by exigent circumstances, because the detective had no

¶214case-specific information that the then-unidentified shooter was

¶215fleeing, had threatened to harm any person, or was actively

¶216destroying evidence. Lofton argues that the exclusionary rule

¶217therefore requires suppression of the initial tranche of his cell phone

¶218records as well as suppression of all the evidence derived from those

¶219records as “fruit of the poisonous tree.”4 Putting aside the first and

¶220 4 In the affidavit supporting the application for an arrest warrant, the detective stated that Lofton’s phone records showed contact with Eatmon before the shooting and that cell tower sites indicated that Lofton’s phone was in the area at the time of the shooting. She also summarized the witnesses’

¶221 14 second elements of Lofton’s argument, we conclude that the

¶222exclusionary rule does not apply to the evidence at issue. Therefore,

¶223reversal is not required.

¶224 At the time of Lofton’s trial in 2014, no appellate precedent

¶225binding in Georgia courts held that a request or demand by a

¶226governmental entity to a cell phone service provider that the

¶227provider produce its records related to a customer’s account

¶228constituted a search under the Fourth Amendment. 5 Under then-

¶229statements that Brown referred Eatmon to Lofton as a source for the drugs Walker wanted to buy and stated that Brown positively identified Lofton in a photo lineup as the person he had referred Eatmon to for the drug deal. After Lofton was arrested, the detective used the same information in an affidavit supporting her application for a warrant to search Lofton’s home. And, weeks later, she used the same information in affidavits for search warrants for MetroPCS records, including the content of text messages, for Lofton’s, Eatmon’s, and Brown’s phones for October 1 through 20, 2013. 5 See Reed v. State, 307 Ga. 527, 535 (2) (b) (837 SE2d 272) (2019) (Trial

¶230counsel was not ineffective in failing to seek to suppress the defendant’s cell phone records that included CSLI, which were obtained pursuant to a court order, because at the time of defendant’s 2017 trial, “Georgia appellate precedent held that a search warrant was not required to obtain CSLI.” (citation omitted)); Smarr v. State, 317 Ga. App. 584, 593 (3) (c) (732 SE2d 110) (2012) (Trial counsel was not ineffective in failing to seek to suppress the defendant’s cell phone records that included CSLI, which were obtained pursuant to a court order, on the basis that the records were obtained without statutory authority and in violation of the defendant’s Fourth Amendment rights against unreasonable searches and seizures, because a motion to suppress “would not have been successful based upon the law as it existed at

¶231 15 existing constitutional doctrine, a person generally lacked a

¶232reasonable expectation of privacy in business records owned and

¶233maintained by a third-party business.6 The government’s access to

¶234the time of the trial” in 2010. (footnote omitted)). 6 See Smith v. Maryland, 442 U. S. 735, 742-746 (99 SCt 2577, 61 LE2d

¶235220) (1979) (holding that a landline telephone customer has no reasonable expectation of privacy in a record of the outgoing phone numbers dialed on his telephone because he voluntarily conveys such information to the telephone company); United States v. Miller, 425 U. S. 435, 442-443 (96 SCt 1619, 48 LE2d 71) (1976) (holding that a bank customer has no reasonable expectation of privacy in records held by the bank, such as canceled checks, deposit slips, and monthly statements, because he voluntarily conveys information about his financial transactions to the bank). In support of Lofton’s motion to suppress, he cited a 2014 Eleventh Circuit panel decision holding that the Smith and Miller third-party doctrine holdings did not extend to historical CSLI obtained with a court order issued under the SCA, 18 USC § 2703 (c) (1) (B), (d); that “cell site location information is within the subscriber’s reasonable expectation of privacy”; and that “[t]he obtaining of that data without a warrant is a Fourth Amendment violation.” United States v. Davis (“Davis I”), 754 F3d 1205, 1217 (I) (11th Cir. 2014). That decision was not binding in Georgia courts. See State v. Rosenbaum, 305 Ga. 442, 449-450 (2) (826 SE2d 18) (2019) (Eleventh Circuit decisions are not binding in Georgia courts, although this Court can consider them as persuasive authority.); Deen v. Stevens, 287 Ga. 597, 601 (2) (b) (698 SE2d 321) (2010) (Eleventh Circuit decisions are not binding in Georgia courts, even on federal law questions, although this Court can consider them as persuasive authority.). Moreover, before Lofton’s trial began, the Eleventh Circuit vacated Davis I for rehearing en banc, see United States v. Davis, 573 Fed. Appx. 925 (11th Cir. Sept. 4, 2014), and later held that the government’s obtaining a court order under the SCA for the production of the cell phone provider’s business records did not constitute a search and did not violate the subscriber’s Fourth Amendment rights. See United States v. Davis, 785 F3d 498, 507-513 (III) (11th Cir. 2015).

¶236 16 such records was not unfettered, however, but was governed by

¶237federal and state statutes. Title II of the Electronic Communications

¶238Privacy Act of 1986, commonly called the Stored Communications

¶239Act (“SCA”),7 provides some privacy protection for the content of

¶240electronic communications and for non-content or transactional

¶241records maintained by providers of electronic communications

¶242services. The SCA protects the privacy of electronic communications

¶243under two paths: by limiting providers’ ability to voluntarily disclose

¶244a user’s information, in 18 USC § 2702, and by specifying the

¶245circumstances in which the government can compel providers to

¶246disclose their users’ information, in 18 USC § 2703. See Alexander

¶247v. Verizon Wireless Svcs., 875 F3d 243, 250 (III) (5th Cir. 2017);

¶248 Registe v. State, 292 Ga. 154, 155-156 (734 SE2d 19) (2012).8

¶249 7 Title II is codified at 18 USC §§ 2701 through 2710. We note that the provisions of the SCA discussed herein have not been amended since Lofton’s trial. 8 See Hampton v. State, 295 Ga. 665, 671 (763 SE2d 467) (2014)

¶250(Nahmias, J., concurring) (noting that, under “constitutional doctrine” applicable at the time of a 2012 trial, “the Fourth Amendment’s protections do not encompass records of a person’s stored communications when the police obtain those records from someone else, like the person’s communications provider,” although “federal and Georgia statutory law imposes limits on the

¶251 17 In terms of voluntary disclosures under 18 USC § 2702, the

¶252SCA generally prohibits a provider from voluntarily divulging “a

¶253record or other information pertaining to a subscriber to or customer

¶254of such service . . . to any governmental entity.” 18 USC § 2702 (a)

¶255(3).9 The SCA provides remedies and sanctions for prohibited

¶256authority of law enforcement to demand stored wire and electronic communications information from a communications provider” (emphasis in original; citations omitted)). 9 18 USC § 2702 (a) provides that, except as otherwise provided,

¶257 (1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and (2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service ― (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service; (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and (3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of

¶258 18 disclosures. 10 But a service provider can voluntarily provide such

¶259non-content records to a governmental entity if the provider has a

¶260good-faith belief that an emergency poses a risk of death or serious

¶261physical injury that requires disclosure without delay. See 18 USC

¶262 § 2702 (c) (4).11 MetroPCS therefore violated the SCA by voluntarily

¶263 communications covered by paragraph (1) or (2)) to any governmental entity. 10 See 18 USC §§ 2701 (providing criminal penalties for “intentionally

¶264access[ing] without authorization” or “intentionally exceed[ing] an authorization to access” a “facility through which an electronic communication service is provided”); 2707 (a) (providing a civil remedy for any “person aggrieved by any violation of [the SCA] in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind”), (d) (providing for administrative discipline of government employees under certain circumstances); 2708 (“The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.”). 11 18 USC § 2702 (c) (4) provides:

¶265 A provider . . . may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) (1) or (a) (2)) . . . to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency[.] See United States v. Gilliam, 842 F3d 801, 803 (2d Cir. 2016) (As used in 18 USC § 2702 (c), the phrase “other information” includes the current location of a subscriber’s cell phone. A provider was authorized to disclose a subscriber’s current location to law enforcement officers under subsection (c) (4) because the officers had received credible information that the subscriber was transporting a missing child in order to require her to work as a prostitute, which was an emergency involving danger of serious physical injury to the

¶266 19 producing the subscriber information and call logs with CSLI

¶267requested by the detective, unless it had a good faith belief that a

¶268qualifying emergency existed.

¶269 Here, when requesting Lofton’s records, the detective attested

¶270that an emergency existed that involved immediate danger of death

¶271or serious bodily injury to a person. She explained that there was a

¶272witness who was known to a murder suspect and that the records

¶273were needed to apprehend the suspect and to prevent the witness

¶274from being harmed. In Registe, a factually similar case decided two

¶275years before Lofton’s trial, 12 this Court determined that a law

¶276enforcement request for voluntary disclosure of cell phone records

¶277satisfied the applicable statutory law, where the service provider

¶278had

¶279child.). 12In Registe, a detective who was investigating a double murder learned from a third person that the victims were supposed to meet someone named “Mike” on the morning they were killed. The witness had a cell phone number for “Mike.” The detective faxed a request to the service provider for the owner of the account and for a log of calls for a two-hour period bracketing the time of the murders. The detective attested, “[o]bviously this suspect presents an immediate danger to any law enforcement officer who may come into contact with this person.” The service provider voluntarily released the requested records. See Registe, 292 Ga. at 156-157. 20 received information directly from police that its records could help identify an at-large suspect of a double homicide committed within a day of the request and that the suspect presented a present and immediate danger. This supported [the provider’s] good faith belief that there was an ongoing emergency, and that belief supported [the provider’s] voluntary disclosure of its records [under the SCA, 18 USC § 2702 (c) (4)].

¶280Registe, 292 Ga. at 157 (footnote omitted).13 Likewise, in this case,

¶281we conclude that the detective’s communications with MetroPCS

¶282supported a good faith belief that its voluntary disclosure of the

¶283requested records was authorized under the SCA and binding

¶284appellate precedent at the time. See id. at 156-157.

¶285 13 In addition to challenging the release of cell phone records under 18 USC § 2702 (c) (4), Registe also argued that the release failed to comply with OCGA § 16-11-66.1 (d), which provides: “A subpoena for the production of stored wire or electronic communications and transactional records pertaining thereto may be issued at any time upon a showing by a law enforcement official, a prosecuting attorney, or the Attorney General that the subpoenaed material relates to a pending criminal investigation.” See also OCGA §§ 16-11- 62 (defining offenses involving unlawful eavesdropping or surveillance); 16-11- 69 (providing punishments for offenses involving unlawful eavesdropping or surveillance). We questioned whether OCGA § 16-11-66.1 applies to voluntary disclosures under 18 USC § 2702 (c) (4), because OCGA § 16-11-66.1 “appears to apply only to mandatory disclosures” of electronic communications and related transactional records to law enforcement. Registe, 292 Ga. at 157 n.3 (emphasis in original); see id. at 158 (Hunstein, C.J., concurring specially) (“Intended to establish ground rules for the issuance and use of warrants, subpoenas, and other means by which law enforcement can compel the disclosure of information, [OCGA § 16-11-66.1] does not address situations involving voluntary disclosures by service providers.” (citations omitted)). 21 Four years after Lofton’s trial, the United States Supreme

¶286Court’s decision in Carpenter v. United States, __ U. S. __ (138 SCt

¶2872206, 201 LE2d 507) (2018), marked a shift in constitutional

¶288doctrine for the government’s acquisition of a person’s location

¶289information from an electronic communications services provider.

¶290The Court concluded that CSLI can be mapped to provide “an all-

¶291encompassing record of the [cell phone] holder’s whereabouts.” Id. at

¶292__ (III) (A) (138 SCt at 2217).

¶293 As with GPS information, the time-stamped [cell-site location] data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations. These location records hold for many Americans the “privacies of life.” And like GPS monitoring, cell phone tracking is remarkably easy, cheap, and efficient compared to traditional investigative tools.

¶294 Id. (citations and punctuation omitted). 14 The Court held that,

¶295 14 See Riley v. California, 573 U. S. 373, 393 (III) (B) (1), 403 (IV) (134 SCt 2473, 189 LE2d 430) (2014) (Modern cell phones, which have “immense storage capacity,” with “all they contain and all they may reveal,” about a person’s private concerns, communications, associations, and past “specific movements down to the minute,” “hold for many Americans ‘the privacies of life[.]’” (citation omitted)).

¶296 22 “[w]hether the government employs its own surveillance

¶297technology[,]” as when it places a tracking device on a suspect’s car, 15

¶298“or leverages the technology of a wireless carrier, . . . an individual

¶299maintains a legitimate expectation of privacy in the record of his

¶300physical movements as captured through CSLI[,]” despite the fact

¶301that the information is held by a third party as part of its business

¶302records. Carpenter, __ U. S. at __ (III) (138 SCt at 2217).

¶303 Because a person has a reasonable expectation of privacy in

¶304“the whole of his physical movements” as captured through CSLI,

¶305the Carpenter Court held, compelling a cell-service provider to turn

¶306over a user’s historical CSLI is a search under the Fourth

¶307Amendment, at least if the CSLI is for seven days or more, and,

¶308before such a search, “the Government’s obligation is a familiar one

¶309– get a warrant.” Id. at __ (III) (A), (IV) (138 SCt at 2217-2221). The

¶310 15 See United States v. Jones, 565 U. S. 400, 407 (132 SCt 945, 181 LE2d 911) (2012) (The government’s installation of a GPS tracking device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements for a period of weeks, was a “physical intrusion of a constitutionally protected area in order to obtain information” and therefore constituted a “search” within the meaning of the Fourth Amendment.).

¶311 23 Court held that an order issued under 18 USC § 2703 (c) (1) (B) and

¶312(d), based on a showing that the government has “reasonable

¶313grounds” for believing that the records are “relevant and material to

¶314an ongoing investigation,”16 is not “a permissible mechanism for

¶315accessing historical cell-site records” because the required showing

¶316by law enforcement “falls well short of the probable cause required

¶317for a warrant” and creates a standard that is “a gigantic departure

¶318from the probable cause rule” applicable to searches under the

¶319 Fourth Amendment. Carpenter, __ U. S. at __ (IV) (138 SCt at 2221)

¶320(punctuation omitted).

¶321 In Carpenter, the Court decided the issue before it narrowly,

¶322 16 18 USC § 2703 (c) (1) provides five circumstances that may authorize a governmental entity to “require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications),” including, in subpart (B), when the governmental entity “obtains a court order for such disclosure under subsection (d) of this section[.]” 18 USC § 2703 (d) provides that a court order for disclosure under subsection (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. 24 holding that “accessing seven days of [historical] CSLI constitutes a

¶323 Fourth Amendment search.” Carpenter, __ U. S. at __ & n.3 (III) (138

¶324SCt at 2217). The Court did not reach the question “whether there

¶325is a limited period for which the Government may obtain an

¶326individual’s historical CSLI free from Fourth Amendment scrutiny,

¶327and if so, how long that period might be.” Id. In arguing for this

¶328Court to reverse the trial court’s denial of Lofton’s motion to

¶329suppress the first tranche of cell phone records, and evidence derived

¶330from those records, Lofton seeks an extension of the holding in

¶331Carpenter: from a government-compelled production of cell phone

¶332records under 18 USC § 2703 (c) (1) (B) and (d) to a request under

¶333 18 USC § 2702 (c) (4) for the voluntary disclosure of records to

¶334address an emergency, and from seven days of historical CSLI to

¶335four days of historical CSLI.

¶336 Even if we were persuaded that Carpenter should be extended

¶337in these ways, however, we would not reverse the trial court’s

¶338decision to admit the historical CSLI evidence in this case unless

¶339exclusion would serve the purpose of deterring future Fourth

¶340 25 Amendment violations by law enforcement officers, which is the

¶341“sole purpose” of the exclusionary rule. Davis v. United States, 564

¶342U. S. 229, 236-237 (II) (131 SCt 2419, 180 LE2d 285) (2011)

¶343(citations omitted). “For exclusion [of evidence obtained in violation

¶344of the Fourth Amendment] to be appropriate, the deterrence benefits

¶345of suppression must outweigh its heavy costs.” Id. (citation omitted).

¶346“When the police exhibit deliberate, reckless, or grossly negligent

¶347disregard for Fourth Amendment rights, the benefits of exclusion

¶348tend to outweigh the costs.” Id. at 238 (II) (citation and punctuation

¶349omitted). But, “when the police act with an objectively reasonable

¶350good-faith belief that their conduct is lawful, or when their conduct

¶351involves only simple, isolated negligence,” then “suppression fails to

¶352yield appreciable deterrence, [and] exclusion is clearly

¶353unwarranted.” Id. at 237-238 (citations omitted).

¶354 Two “good faith” exceptions to the exclusionary rule are

¶355pertinent here. 17 In Illinois v. Krull, 480 U. S. 340 (107 SCt 1160, 94

¶356 17 The first good faith exception to the exclusionary rule recognized by

¶357 26 LE2d 364) (1987), the United States Supreme Court examined the

¶358admissibility of “evidence obtained by an officer acting in objectively

¶359reasonable reliance on a statute” that is later declared

¶360unconstitutional. Id. at 349 (II) (B). The Court held that such

¶361evidence is not subject to the exclusionary rule because “[p]enalizing

¶362the officer for the legislature’s error, rather than his own, cannot

¶363logically contribute to the deterrence of Fourth Amendment

¶364the United States Supreme Court applies where an officer acting with objective good faith obtains a search warrant from a judge or magistrate and acts within the scope of the warrant. See United States v. Leon, 468 U. S. 897, 918-921 (III) (B) (104 SCt 3405, 82 LE2d 677) (1984). This Court later held that, “in light of [Georgia’s] legislatively-mandated exclusionary rule found in OCGA § 17-5- 30[,]” the Leon exception to the exclusionary rule is inapplicable in Georgia as a matter of statutory law. Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). See OCGA § 17-5-30 (“A defendant aggrieved by an unlawful search and seizure may move the court . . . to suppress as evidence anything so obtained on the grounds that . . . [t]he search and seizure with a warrant was illegal because . . . there was not probable cause for the issuance of the warrant. . . . If the motion is granted the property . . . shall not be admissible in evidence against the movant in any trial.”). Recently, however, this Court found the reasoning of Gary to be “unsound” and concluded that OCGA § 17-5-30 “establishes a procedure for applying the exclusionary rule but does not itself require the suppression of any evidence.” Mobley v. State, 307 Ga. 59, 75 (4) (a) (834 SE2d 785) (2019). We “disavow[ed]” Gary’s reasoning and held that Gary “does not extend to any context other than the reliance of an officer in good faith upon the validity of a search warrant[.]” Mobley, 307 Ga. at 75 (4) (a) (not reaching the question whether the specific holdings of Gary and its progeny should be squarely overruled, “a question that would require a consideration of the doctrine of stare decisis” (citation omitted)). Thus, Gary does not “categorically foreclose the application of any other exception to the exclusionary rule.” Id. at 75-76 (4) (a). 27 violations.” Id. at 350 (II) (B) (citation and punctuation omitted). The

¶365Court explained that,

¶366 [u]nless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.

¶367 Id. at 349-350 (II) (B). The Court held that the exclusionary rule did

¶368not apply to evidence seized in objective good faith reliance on “a

¶369statute that appeared legitimately to allow a warrantless

¶370administrative search” of certain licensed businesses. Id. at 360

¶371(III).

¶372 More recently, in Davis, the United States Supreme Court

¶373applied the same reasoning to searches conducted in objectively

¶374reasonable reliance on binding appellate precedent that is later

¶375overruled. See 564 U. S. at 231. The Court held that such evidence

¶376is not subject to the exclusionary rule because “[a]n officer who

¶377conducts a search in reliance on binding appellate precedent does no

¶378 28 more than act as a reasonable officer would and should act under

¶379the circumstances.” Id. at 241 (III).

¶380 In this case, we have concluded that the detective’s

¶381communications with MetroPCS supported a good-faith belief that

¶382the company’s voluntary disclosure of the requested records was

¶383authorized under the SCA, 18 USC § 2702 (c) (4). We further

¶384conclude that it was objectively reasonable for a law enforcement

¶385officer in good faith to rely on this statutory mechanism to request

¶386records for a cell phone number used by a murder suspect where the

¶387request was made less than a day after the murder while the effort

¶388to apprehend the suspect was ongoing. See Krull, 480 U. S. at 360

¶389(III); Registe, 292 Ga. at 157; see also United States v. Wilson, 960

¶390F3d 136, 146 (III) (B) (3d Cir. 2020) (holding exclusionary rule did

¶391not apply to historical CSLI obtained with a court order applied for

¶392in objectively reasonable good faith reliance on 18 USC § 2703 (c) (1)

¶393(B) and (d) of the SCA before the statute was abrogated by

¶394Carpenter); United States v. Curtis, 901 F3d 846, 849 (I) (7th Cir.

¶3952018) (same). In addition, we conclude that it was objectively

¶396 29 reasonable for a law enforcement officer in good faith to rely on

¶397binding appellate precedent that at the time did not recognize any

¶398reasonable expectation of privacy in non-content cell phone records

¶399contained in the business records of a third party and did not

¶400differentiate between historical CSLI and other types of non-content

¶401cell phone records, as the Carpenter Court would later do. See Davis,

¶402564 U. S. at 241 (III); Reed v. State, 307 Ga. 527, 535 (2) (b) (837

¶403SE2d 272) (2019); Registe, 292 Ga. at 156-157; Smarr v. State, 317

¶404Ga. App. 584, 593 (3) (c) (732 SE2d 110) (2012); see also United

¶405 States v. Zodhiates, 901 F3d 137, 143 (I) (2d Cir. 2018) (holding

¶406exclusionary rule did not apply to historical CSLI obtained in

¶407objectively reasonable good faith reliance on appellate precedent

¶408establishing the third-party doctrine before the Carpenter Court

¶409held that a warrant is required for at least seven days of historical

¶410CSLI despite the fact that the information is held by a third party).18

¶411 18 In Mobley, we made clear that “the Davis good faith exception is distinct from the Leon good faith exception and is not, therefore, foreclosed by the specific holding of Gary.” 307 Ga. at 78 n.24. We therefore disapprove the Court of Appeals’ decision in Brown v. State, 330 Ga. App. 488, 492-493 & n.6

¶412 30 Because, at the time of Lofton’s trial, a federal statute, 18 USC

¶413 § 2702 (c) (4), and binding appellate precedent, Registe, 292 Ga. at

¶414157, authorized the investigatory conduct at issue, reversing the

¶415trial court’s decision in this case would have little, if any, additional

¶416benefit in deterring future violations of the privacy interests

¶417recognized in Carpenter. We therefore affirm the trial court’s ruling.

¶418See Davis, 564 U. S. at 241 (III); Krull, 480 U. S. at 360 (III).

¶419 3. Lofton contends that he received ineffective assistance of

¶420counsel. Specifically, he argues that, at the hearing on his motion to

¶421suppress, his counsel was constitutionally deficient for failing to

¶422adequately cross-examine the detective about the exigent

¶423circumstances that allegedly existed when she initially obtained

¶424Lofton’s MetroPCS phone records without a warrant. He argues that

¶425the supposed inadequacy of counsel’s cross-examination of the

¶426detective prejudiced him by causing the trial court to deny his

¶427(2) (767 SE2d 299) (2014) (citing Gary and holding that Georgia does not recognize the Davis good faith exception to the exclusionary rule and that, therefore, a warrantless search incident to a DUI arrest of the arrestee’s cell phone to view photos stored on the phone “was illegal regardless whether the officer reasonably relied on existing case law” (footnote omitted)). 31 motion to suppress.

¶428 To succeed on his claim of ineffective assistance of counsel,

¶429Lofton “must prove both that his lawyer’s performance was

¶430professionally deficient and that he was prejudiced as a result.”

¶431 Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325) (2020) (citation

¶432and punctuation omitted). See also Strickland v. Washington, 466

¶433U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).

¶434 The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel. More specifically, the extent of cross-examination is a strategic and tactical decision. Decisions about cross-examination do not amount to deficient performance unless they are so unreasonable that no competent attorney would have made them under similar circumstances.

¶435 Gaston v. State, 307 Ga. 634, 642 (2) (d) (837 SE2d 808) (2020)

¶436(citations and punctuation omitted).

¶437 The transcript of the hearing on Lofton’s motion to suppress

¶438shows that counsel questioned the detective at length and elicited

¶439testimony about the circumstances that existed when she requested

¶440the records from MetroPCS. Lofton fails to specify any question or

¶441 32 line of inquiry that counsel failed to pursue. As a result, he has not

¶442established a reasonable probability that the result of his trial would

¶443have been different absent counsel’s alleged deficiencies. See

¶444 Wainwright v. State, 305 Ga. 63, 69 (3) (823 SE2d 749) (2019) (Mere

¶445speculation that counsel failed to properly cross-examine witness is

¶446not enough to show prejudice on ineffective assistance of counsel

¶447claim.); Baker v. State, 293 Ga. 811, 815 (3) (750 SE2d 137) (2013)

¶448(same). And “if an appellant fails to meet his or her burden of

¶449proving either prong of the Strickland test, the reviewing court does

¶450not have to examine the other prong.” Wainwright, 305 Ga. at 69 (3)

¶451(citation and punctuation omitted). Lofton’s claim of ineffective

¶452assistance of counsel therefore fails.

¶453 4. Lofton contends that the trial court erred in allowing certain

¶454exhibits to go out with the deliberating jury in violation of the

¶455continuing witness rule. Specifically, he contends that the trial court

¶456erred in sending out State’s Exhibit 15, a six-person photographic

¶457lineup on which Brown circled Lofton’s photo and wrote “Lil Tony”

¶458under the photo, and State’s Exhibit 14, a form that Brown filled out

¶459 33 after viewing the lineup, including an indication that it took him 10

¶460seconds or less to pick out the person who committed the crime and

¶461that he knew the person he identified as Lil Tony. Lofton also

¶462contends that the trial court erred in sending out MetroPCS phone

¶463records that included subscriber information and call detail records

¶464with tower location information for the period October 1 through 20,

¶4652013, for Lofton’s phone (State’s Exhibit 42), Eatmon’s phone

¶466(State’s Exhibit 43), and Brown’s phone (State’s Exhibit 44). Finally,

¶467Lofton contends that the trial court erred in sending out State’s

¶468Exhibit 45B, a printout of text messages for Lofton’s phone for the

¶469day of the shooting, and State’s Exhibit 46, a list of cell phone towers

¶470in the Atlanta area with the street address of each tower.

¶471 The continuing witness rule of Georgia law “regulates which

¶472documents or recordings go into the jury room with the jury during

¶473deliberations and which ones do not.” Clark v. State, 296 Ga. 543,

¶474548-549 (4) (769 SE2d 376) (2015). As we have explained,

¶475 the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard

¶476 34 when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.

¶477 Keller v. State, 308 Ga. 492, 505-506 (9) (842 SE2d 22) (2020)

¶478(citation and punctuation omitted). See also Rainwater v. State, 300

¶479Ga. 800, 802 n.3 (2) (797 SE2d 889) (2017) (noting that the

¶480continuing witness rule was unaffected by the enactment of the

¶481current Evidence Code).

¶482 Here, none of the challenged exhibits were written testimony,

¶483nor did they derive their evidentiary value solely from the credibility

¶484of the makers of the exhibits. See Clarke v. State, 308 Ga. 630, 636

¶485(4) (842 SE2d 863) (2020); Keller, 308 Ga. at 505-506 (9). Instead,

¶486they were original documentary evidence and were properly allowed

¶487to go out with the jury. See Clarke, 308 Ga. at 636 (4); Keller, 308

¶488 Ga. at 505-506 (9); Wilkins v. State, 291 Ga. 483, 484 (6) (731 SE2d

¶489346) (2012).

¶490 5. Lofton contends that he received ineffective assistance of

¶491 35 counsel after the trial court denied his request, made just before jury

¶492selection, to discharge his court-appointed counsel and to replace

¶493appointed counsel with retained counsel. After hearing Lofton’s

¶494request, the trial court also agreed to hear from Lofton’s father on

¶495the issue. The trial court stated that, because Lofton had filed a

¶496demand for a speedy trial and had known of the date set for trial

¶497with adequate time to retain new counsel, the court would not grant

¶498a continuance for that purpose. See Lane v. State, 299 Ga. 791, 794

¶499(2) (792 SE2d 378) (2016) (“[W]hile every defendant has the right to

¶500hire counsel, a defendant must use reasonable diligence in obtaining

¶501retained counsel. A defendant may not use a request for change of

¶502counsel as a dilatory tactic.” (citations and punctuation omitted)).

¶503The trial court then allowed Lofton and his father to confer privately

¶504with Lofton’s appointed counsel. After that private conference,

¶505Lofton abandoned his request to discharge his appointed counsel.

¶506 The assistance of counsel is not ineffective solely because the

¶507client would have preferred a different lawyer. See McCullough v.

¶508State, 304 Ga. 290, 296 (2) (b) (818 SE2d 520) (2018). And Lofton did

¶509 36 not preserve for our review any error in the trial court’s declining

¶510his request to change counsel because he withdrew his request. See

¶511 Phillips v. State, 279 Ga. 704, 705 (1) (620 SE2d 367) (2005);

¶512 Anderson v. State, 276 Ga. App. 216, 217 (1) (622 SE2d 898) (2005).

¶513 6. Lofton contends that the State exercised its jury strikes with

¶514racially discriminatory intent and that the trial court erred in

¶515rejecting his challenge to the jury under Batson v. Kentucky, 476 U.

¶516S. 79 (106 SCt 1712, 90 LE2d 69) (1986). Specifically, Lofton

¶517contends that the State, which used nine peremptory jury strikes

¶518and struck seven African American jurors, exercised its jury strikes

¶519in a racially discriminatory manner.

¶520 A Batson challenge involves three steps:

¶521 (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.

¶522 Thomas v. State, 309 Ga. 488, 490 (847 SE2d 147) (2020) (citation

¶523omitted). “[A] trial court’s finding as to whether the opponent of a

¶524 37 strike has proven discriminatory intent is entitled to great deference

¶525and will not be disturbed unless clearly erroneous.” Jackson v. State,

¶526 291 Ga. 25, 26-27 (2) (727 SE2d 120) (2012) (citations omitted).

¶527 In this case, the threshold issue of whether Lofton made a

¶528prima facie showing of racial discrimination is moot, because the

¶529State, on the record, offered race-neutral explanations for each of

¶530the challenged strikes. See Lord v. State, 304 Ga. 532, 536 (3) (820

¶531SE2d 16) (2018); see also Pye v. State, 269 Ga. 779, 780 (1) (505 SE2d

¶5324) (1998) (“The record shows that the State gave reasons for [each of

¶533the challenged peremptory strikes], rendering the necessity of a

¶534preliminary showing of prima facie discrimination moot.” (citation

¶535omitted)). “At step two [of a Batson analysis], the proponent of the

¶536strike need only articulate a facially race-neutral reason for the

¶537strike. Step two does not demand an explanation that is persuasive,

¶538or even plausible.” Taylor v. State, 303 Ga. 624, 631-632 (3) (814

¶539SE2d 353) (2018) (citations and punctuation omitted). “[B]oth the

¶540United States Supreme Court and this Court have squarely held

¶541that a peremptory strike based upon a juror’s demeanor during voir

¶542 38 dire may be race-neutral at Batson step two.” Id. (citations and

¶543punctuation omitted). Here, the State gave race-neutral

¶544explanations for the strikes. See Myrick v. State, 306 Ga. 894, 899

¶545(2) (b) (834 SE2d 542) (2019).19

¶546 “At the third step of the Batson analysis, the trial court makes

¶547credibility determinations, evaluates the persuasiveness of the

¶548strike opponent’s prima facie showing and the explanations given by

¶549the strike proponent, and examines all other circumstances that

¶550bear upon the issue of racial animosity.” Thomas, 309 Ga. at 491 (2).

¶551A trial court’s finding that the prosecutor’s reasons for the

¶552 19 The State explained that prospective Juror Number 8 was removed because the juror felt that she would have a “hard time disassociating” this case from her negative feelings about her daughter serving as a State trooper; Juror Number 11 was “vague” in her responses during voir dire and the prosecutor believed that the juror was not forthcoming about her feelings regarding her father’s substance abuse problems; Juror Number 16 was extremely familiar with the locations of the gas stations and apartments where events at issue took place; Juror Number 25 did not seem to understand the questions posed during voir dire and was not forthcoming in her responses; Juror Number 29 seemed indifferent to his children and also seemed deceitful in his answers about his familiarity with the incident locations; Juror Numbers 38 and 39 were not objectionable to the prosecutor, but she struck them “purely strategically” because she felt Juror Number 40 would be particularly sympathetic to the victim because her brother also had abused prescription drugs. 39 peremptory strikes were not racially motivated, “like most Batson

¶553decisions, turn[s] largely on an evaluation of the credibility of the

¶554attorney who made the strikes, and evaluation of the prosecutor’s

¶555state of mind based on demeanor and credibility lies peculiarly

¶556within a trial judge’s province.” Johnson v. State, 302 Ga. 774, 780

¶557(3) (b) (809 SE2d 769) (2018) (citations and punctuation omitted).

¶558We discern no basis for concluding that the trial court’s

¶559determination that Lofton failed to prove discriminatory intent is

¶560clearly erroneous; therefore, we affirm. See Taylor, 303 Ga. at 633-

¶561635 (3); Johnson, 302 Ga. at 782 (3).

¶562 7. Lofton contends that the trial court erred in denying his

¶563request that the jury be instructed that the testimony of an

¶564accomplice alone is not sufficient to warrant a conviction but must

¶565be corroborated by other evidence of the guilt of the accused.20

¶566Specifically, Lofton argues that Eatmon was an accomplice in the

¶567 20 See OCGA § 24-14-8 (In “prosecutions for . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient [to establish a fact]. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness” in such cases.). 40 “string of crimes” on the day of the shooting, in that he

¶568“orchestrated” the drug deal.

¶569 “In considering whether a witness is an accomplice, we look to

¶570the definition of party to a crime found in OCGA § 16-2-20.” Walter

¶571v. State, 304 Ga. 760, 766 (3) (b) (822 SE2d 266 (2018) (citation

¶572omitted). Under that statute, “[a] person is concerned in the

¶573commission of a crime . . . if he . . . [i]ntentionally aids or abets in

¶574the commission of the crime; or [i]ntentionally advises [or]

¶575encourages . . . another to commit the crime.” OCGA § 16-2-20 (b)

¶576(3), (4). “Mere presence at the commission of a crime does not render

¶577the spectator an accomplice.” Christian v. State, 277 Ga. 775, 776 (1)

¶578(596 SE2d 6) (2004) (footnote omitted). Rather, there must be some

¶579evidence showing that the person “shared a common criminal intent

¶580to commit the crimes in question with the actual perpetrators.”

¶581 Higuera-Guiterrez v. State, 298 Ga. 41, 43 (2) (779 SE2d 288) (2015)

¶582(citation omitted). Criminal intent may be inferred from the person’s

¶583conduct before, during, and after the crimes. Id.

¶584 “There must be at least slight evidence produced at trial to

¶585 41 authorize a jury instruction, and whether the evidence presented is

¶586sufficient to authorize a charge is a question of law.” Rammage v.

¶587State, 307 Ga. 763, 767 (4) (838 SE2d 249) (2020) (citation and

¶588punctuation omitted). See also Barron v. State, 297 Ga. 706, 708 (2)

¶589(777 SE2d 435) (2015) (“[A] request to charge has to be legal, apt,

¶590and precisely adjusted to some principle involved in the case and be

¶591authorized by the evidence.” (citation and punctuation omitted)).

¶592Thus, it is not error to fail to give a requested jury instruction

¶593regarding the corroboration required for accomplice testimony

¶594where there is no evidence that the witness shared a common

¶595criminal intent with the defendant to commit the crimes charged.

¶596See Yeomans v. State, 229 Ga. 488, 493 (5) (192 SE2d 362) (1972);

¶597 Parks v. State, 294 Ga. App. 646, 651 (7) (669 SE2d 684) (2008); see

¶598also Thornton v. State, 307 Ga. 121, 125 (2) (c) (834 SE2d 814) (2019)

¶599(no obvious error in failing sua sponte to instruct the jury on

¶600corroboration of accomplice testimony where there was no evidence

¶601that a witness shared a common criminal intent with the defendant

¶602in shooting the murder victim); Stripling v. State, 304 Ga. 131, 136

¶603 42 (2) (816 SE2d 663) (2018) (same).

¶604 Although there was evidence in this case that Eatmon shared

¶605a common criminal intent with Lofton for the drug deal to take place,

¶606there was no evidence that Eatmon shared a common criminal

¶607intent with Lofton for any of the crimes charged: murder, armed

¶608robbery, aggravated assault, and possession of a firearm. There was

¶609no evidence that Eatmon even knew Lofton was armed and prepared

¶610to shoot Eatmon’s associate, Walker. And Eatmon’s conduct after

¶611the shooting did not aid or abet Lofton in the crimes charged; rather,

¶612Eatmon drove Walker to the hospital, and his cooperation with the

¶613detectives and with the prosecutors directly contributed to Lofton’s

¶614apprehension and conviction. The trial court did not err in refusing

¶615to instruct the jury to determine whether Eatmon was an accomplice

¶616or in failing to charge the jury on the corroboration necessary for the

¶617testimony of an accomplice. See Yeomans, 229 Ga. at 493 (5); Parks,

¶618294 Ga. App. at 651 (7).

¶619 Judgment affirmed. All the Justices concur, except Melton, C. J., who concurs in judgment only in Division 7.

¶620 43