¶1In the Supreme Court of Georgia
¶2 Decided: May 17, 2021
¶3 S21A0075. ABBOTT v. THE STATE.
¶4 LAGRUA, Justice.
¶5 Appellant Emerson Mack Abbott was tried by a Floyd County
¶6jury and found guilty of murder and numerous other crimes arising
¶7from the shooting deaths of James and Myra Reeves.1 On appeal,
¶8 1 The crimes occurred on January 23, 2015. In May 2015, a Floyd County grand jury indicted Appellant, charging him with two counts of malice murder, two counts of felony murder, two counts of burglary, four counts of aggravated assault, two counts of aggravated battery, and one count each of armed robbery, theft by deception, and possession of a weapon during the commission of a crime. Appellant was tried before a jury in April 2018 and found guilty on all counts. On July 10, 2018, the trial court sentenced Appellant to two consecutive terms of life in prison without the possibility of parole for the malice murder counts; a consecutive five-year term for the weapon-possession count; and various concurrent terms for the first of the two burglary counts, the armed robbery count, and the theft by deception count. The other counts merged or were vacated by operation of law. Appellant filed a timely motion for new trial, and the trial court denied the motion in an order entered on October 16, 2019. After his first notice of appeal, filed six days late and directed to the Court of Appeals, was transferred to this Court and dismissed as untimely, Appellant was granted an out-of-time appeal on June 5, 2020. Appellant then filed a timely notice of appeal, and this case was docketed to Appellant contends that the trial court erred in allowing a witness
¶9to testify at trial while under the influence of alcohol and in
¶10admitting evidence of a prior act of theft. Appellant also contends
¶11that the State failed to disclose an agreement with a testifying
¶12witness, in violation of Brady v. Maryland, 373 U. S. 83 (83 SCt
¶131194, 10 LE2d 215) (1963). We discern no error, and thus we affirm.
¶14 The evidence presented at Appellant’s trial showed that,
¶15shortly after 3:00 p.m. on January 23, 2015, James and Myra Reeves
¶16were found dead in their Floyd County home, both victims of
¶17recently inflicted shotgun wounds. The door leading into the home
¶18from the carport, which was not visible from the street, had been
¶19shot through. The home was otherwise in good order and
¶20undisturbed.
¶21 At the time, Appellant lived next door to the Reeveses with his
¶22girlfriend, Kelly McCleskey. The two properties were separated by
¶23a wooded area with a fence that had an opening between the
¶24the term of this Court commencing in December 2020 and thereafter was submitted for a decision on the briefs.
¶25 2 properties. McCleskey testified that, on January 23, she awakened
¶26from a nap in the early afternoon and tried unsuccessfully to reach
¶27Appellant on his phone, after which, at around 2:35 p.m., Appellant
¶28“[came] up walking out of the pasture,” and then left the house in
¶29his truck to pick up McCleskey’s 13-year-old daughter, Beth, from
¶30school. Beth testified that on the afternoon of January 23, Appellant
¶31was late picking her up and, when he did arrive, she noticed that he
¶32was in possession of a large amount of cash.
¶33 According to one of the lead investigators, Appellant became a
¶34person of interest after he repeatedly “interjected” himself into the
¶35investigation by initiating contacts with law enforcement officers.
¶36In the course of his several interviews with investigators in the days
¶37following the crimes, investigators noted inconsistencies in
¶38Appellant’s statements as to the chronology of his activities on the
¶39afternoon of the murders and as to certain basic facts, such as
¶40whether he owned a shotgun and whether he had ever been inside
¶41the Reeveses’ home.
¶42 3 In early February, investigators were alerted to a $7,500 check
¶43that had been cashed against the Reeves’ SunTrust bank account on
¶44the afternoon of the murders. Investigation revealed that the payee
¶45was Appellant, whose image was captured in bank security camera
¶46photos showing him at the bank at 3:10 p.m. on January 23. On that
¶47same afternoon, Appellant went to a title pawn shop near the
¶48SunTrust branch and paid more than $4,000 in cash to redeem a car
¶49that had been recently repossessed.
¶50 Evidence showed that the repossessed car had belonged to
¶51McCleskey, until Appellant forged her signature to transfer the title
¶52to himself and pawned the title for cash. Appellant then failed to
¶53repay the loan, and the car was repossessed; January 23 was the
¶54final day of its redemption period. After Appellant’s arrest,
¶55McCleskey also discovered that $5,000 was missing from her bank
¶56account and that the balance in her child support debit account had
¶57been drawn down without her knowledge.
¶58 In an interview after the discovery of the SunTrust check, GBI
¶59Special Agent Earl Glover asked Appellant whether he had ever
¶60 4 borrowed money from or done any work for the Reeveses. Appellant
¶61told Agent Glover that he had recently agreed to remove some trees
¶62from the Reeveses’ property but did not volunteer that he had
¶63received any payment for this work. Later in the interview, when
¶64asked specifically whether he had already been paid for the job,
¶65Appellant admitted that he had, acknowledging for the first time the
¶66$7,500 check he had cashed. Appellant told Agent Glover that he
¶67had needed the money up front to purchase the tree removal
¶68equipment, but ultimately admitted that he had never made such a
¶69purchase. And, while initially claiming he still had the $7,500,
¶70Appellant later admitted he had spent it. Though Appellant told
¶71Agent Glover that Myra had given him the check at the Reeveses’
¶72home on either the Tuesday or Wednesday before the murders,
¶73evidence reflected that the Reeveses had been in Alabama on those
¶74dates.
¶75 Additional testimony reflected that, one week after the
¶76murders, Appellant called police to report that a threatening
¶77message had been painted on the storm door of his and McCleskey’s
¶78 5 home. Upon investigation, officers noted with suspicion that the
¶79message had been written neatly, as though the perpetrator had not
¶80been in a hurry. In the course of his interview that evening,
¶81Appellant told the responding officer that there had been several
¶82recent prowling incidents around his home and that a four-wheeler
¶83belonging to McCleskey had recently been stolen from their
¶84property. However, police records showed that no such incidents
¶85had ever been reported, and the four-wheeler was later discovered
¶86at the residence of Appellant’s mother.
¶87 There was also evidence that Appellant had knowledge of non-
¶88public information about the murders. Beth McCleskey’s boyfriend,
¶89Reed Jackson, testified that, in a conversation two days after the
¶90murders, Appellant told Jackson that whoever had killed the
¶91Reeveses “shot [James] in the chest, and they made the woman
¶92crawl to the back bedroom, and then that’s where she was shot, and
¶93on the way back out, they shot him again to make sure he was dead.”
¶94 Appellant was arrested for the murders on February 24, 2015.
¶95One of Appellant’s jail cellmates, Michael Lehr, testified that, while
¶96 6 Appellant never explicitly admitted to committing the murders, he
¶97made numerous statements strongly suggestive of his involvement.
¶98Lehr testified that Appellant told him he “[j]ust never thought that
¶99January day would ever catch up” and stated on various occasions,
¶100“you can’t do ballistics on a shotgun”; “if I hadn’t messed with that
¶101damn check”; and “I was thinking of going to Mexico. Too late now.
¶102I’m f**ked!” Appellant also made statements to the effect that he
¶103was certain he would never be a suspect, as he believed “this whole
¶104damn deal would fall on” the Reeveses’ son, who was “strung out on
¶105drugs” and thus “the cops would think he did it for the money.”
¶106According to Lehr, Appellant often mumbled in his sleep, and in one
¶107such instance, Appellant said, “once I saw all the blood, and using a
¶108shotgun, it felt like an awesome rush at the time.”2
¶109 1. In his first enumeration of error, Appellant contends that
¶110the trial court erred by allowing McCleskey to testify because she
¶111 2Appellant does not challenge the sufficiency of the evidence supporting his convictions, and we no longer routinely consider sufficiency sua sponte in non-death penalty cases. See Davenport v. State, 309 Ga. 385, 399 (846 SE2d 83) (2020). 7 was under the influence of alcohol when she appeared at trial. The
¶112record reflects that McCleskey, who admitted to being a “serious
¶113alcoholic,” was found to have a blood-alcohol content of .03 on the
¶114morning she appeared to testify at Appellant’s trial. Consequently,
¶115the prosecutor deferred calling McCleskey and proceeded with
¶116another witness, while McCleskey waited, under supervision,
¶117elsewhere in the courthouse. Several hours later, and only after her
¶118blood-alcohol content was confirmed to have returned to zero,
¶119McCleskey was called to testify. During her testimony, McCleskey
¶120admitted that she had been drinking alcohol on the previous evening
¶121but stated that she had not consumed any alcohol that day. At no
¶122time did Appellant object to proceeding with McCleskey’s testimony.
¶123 Because Appellant failed to object, we review this enumeration
¶124for plain error only. See OCGA § 24-1-103 (a) (1), (d). To establish
¶125plain error, Appellant must not only show the existence of an error
¶126but also show that
¶127 (1) the error was not affirmatively waived by the appellant; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the
¶128 8 appellant’s substantial rights”; and (4) “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.”
¶129McGarity v. State, Case No. S20A1528, 2021 WL 954749, at *4 (2)
¶130(decided Mar. 15, 2021) (citation omitted). Here, there was no
¶131evidence that McCleskey was in any way impaired at the time she
¶132testified. To the contrary, the evidence showed that her blood-
¶133alcohol content had returned to normal, andAppellant identifies no
¶134instances in which McCleskey appears to have responded to
¶135questioning inappropriately. Accordingly, there was no error, much
¶136less any plain error, in the trial court’s allowing her to testify. See
¶137Geter v. State, 231 Ga. 615, 617 (203 SE2d 195) (1974) (no error in
¶138permitting testimony of witness who was under effects of medication
¶139and suffering from drug addiction but was shown to be lucid and
¶140alert). This enumeration is therefore without merit.
¶141 2. Appellant next contends that the trial court erred by
¶142admitting, as intrinsic evidence, testimony about the theft of
¶143McCleskey’s four-wheeler. Appellant asserts that the evidence did
¶144not constitute intrinsic evidence and should have been subject to,
¶145 9 and held inadmissible under, OCGA § 24-4-404 (b) (providing that
¶146“other acts” evidence is admissible only for limited purposes).
¶147Appellant asserts further that, even if the evidence was properly
¶148classified as intrinsic, it should have been excluded under OCGA §
¶14924-4-403 (“[r]elevant evidence may be excluded if its probative value
¶150is substantially outweighed by the danger of unfair prejudice”). We
¶151discern no abuse of discretion in the admission of this evidence.
¶152 At a pretrial hearing, the State contended that the theft of the
¶153four-wheeler was part of a series of financially motivated crimes,
¶154including the unauthorized pawning of McCleskey’s car title and
¶155theft of her cash, perpetrated by Appellant during the period leading
¶156up to the murders. The State contended further that, as part of his
¶157plan to commit the murders, Appellant had been spreading word
¶158among his neighbors about crimes in the area to make it appear that
¶159the murders were part of a “sort of reign of terror that had been
¶160going on in the neighborhood.” As the State also noted, Appellant
¶161had made reference to the theft of the four-wheeler in some of his
¶162statements to police after the murders. The trial court held that
¶163 10 evidence of Appellant’s theft of the four-wheeler was admissible as
¶164intrinsic evidence, finding that it was “necessary to complete the
¶165story of the crime” and “form[ed] an integral and natural part of the
¶166account of the crime.”
¶167 As we have previously explained, “[t]he limitations and
¶168prohibition on ‘other acts’ evidence set out in OCGA § 24-4-404 (b)
¶169do not apply to “‘intrinsic evidence.’” Smith v. State, 302 Ga. 717,
¶170725 (4) (808 SE2d 661) (2017). “Intrinsic evidence” is defined as
¶171evidence that (1) pertains to an uncharged offense arising from the
¶172same transaction or series of transactions as the charged offense; (2)
¶173is necessary to complete the story of the crime; or (3) is inextricably
¶174intertwined with the evidence regarding the charged offense. See
¶175Harris v. State, 310 Ga. 372, 377 (2) (b) (850 SE2d 77) (2020).
¶176 [E]vidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury. . . . And this sort of intrinsic evidence remains admissible even if it incidentally places the defendant’s character at issue.
¶177 11 Smith, 302 Ga. at 725 (4). On appeal, we review the admission of
¶178intrinsic evidence for an abuse of discretion. See id. at 725-726 (4).
¶179 Here, we discern no abuse of discretion in the trial court’s
¶180determination that the alleged theft of the four-wheeler qualified as
¶181intrinsic evidence. In assessing whether evidence is “necessary” in
¶182this context, we have noted that “‘necessary’ is not used in a strictly
¶183literal sense, but rather, refers to what evidence is reasonably
¶184necessary for the State to complete the story of the crime.” Harris,
¶185310 Ga. at 379 (2) (b). In this case, the theft of the four-wheeler
¶186occurred in the weeks leading up to the murders, during the same
¶187period of time when Appellant was shown to have pawned the title
¶188to McCleskey’s car without her knowledge and stolen thousands of
¶189dollars in cash from her. As such, the theft formed part of the
¶190chronology of Appellant’s crimes leading to the murders, offering
¶191insight into his motive. See, e.g., McKelvey v. State, Case No.
¶192S20A1548, 2021 WL 769435, at * 5 (3) (decided Mar. 1, 2021)
¶193(evidence of prior crime was properly admitted as intrinsic evidence
¶194where it pertained to chain of events leading to charged crimes and
¶195 12 helped explain the defendant’s motive); Priester v. State, 309 Ga.
¶196330, 333 (2) (845 SE2d 683) (2020) (evidence of defendant’s drug-
¶197dealing was properly admitted as intrinsic evidence because it was
¶198relevant to an understanding of the motive for the charged crimes).
¶199Moreover, after the murders, Appellant himself told investigators
¶200about the theft, feigning ignorance about the vehicle’s whereabouts,
¶201as part of his narrative about a spate of recent crimes in the area.
¶202The theft thus also figured into Appellant’s attempt to deflect blame
¶203from himself for the murders, providing evidence of premeditation
¶204and showing the “set-up of the crime.” Smith, 302 Ga. at 725 (4).
¶205Accordingly, there was no abuse of discretion in classifying this
¶206evidence as intrinsic.
¶207 Appellant also claims that, even if properly classified as
¶208intrinsic, the evidence was highly prejudicial and thus should have
¶209been excluded under OCGA § 24-4-403. However, we see no abuse
¶210of discretion in the trial court’s concluding that the probative value
¶211of the evidence was not substantially outweighed by the danger of
¶212unfair prejudice. See Harris, 310 Ga. at 379 (2) (b) (where
¶213 13 defendant’s prior violent acts provided context to other witnesses’
¶214accounts, probative value of that evidence was not substantially
¶215outweighed by danger of unfair prejudice); Smith, 307 Ga. at 273 (2)
¶216(c) (where defendants’ ongoing drug use and possible drug dealing
¶217“gave further context” for incidents leading to charged crimes,
¶218probative value of that evidence was not substantially outweighed
¶219by danger of unfair prejudice).
¶220 3. In his final enumeration, Appellant contends that the State
¶221violated Brady by failing to disclose an agreement with Lehr
¶222regarding his trial testimony. Appellant claims that, shortly after
¶223reporting Appellant’s statements about the murders, Lehr entered
¶224a guilty plea on an aggravated assault charge on highly favorable
¶225terms – receiving only probation – and a warrant pending against
¶226him in Alabama was dismissed. Noting Lehr’s testimony that the
¶227detective with whom he spoke told him to keep notes of Appellant’s
¶228incriminating statements and offered to “write a letter” to the
¶229district attorney’s office on Lehr’s behalf, Appellant contends this
¶230evidence reveals the existence of a deal with Lehr that the State
¶231 14 failed to disclose. We discern no error.
¶232 It is well settled that
¶233 [t]he [S]tate is under a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness, and a failure to disclose such an agreement constitutes a violation of the due process requirements of Brady v. Maryland.
¶234Younger v. State, 288 Ga. 195, 200 (4) (702 SE2d 183) (2010)
¶235(punctuation and citations omitted). Further,
¶236 [t]o prevail on a Brady claim, a defendant must show that the State possessed evidence favorable to the defendant; [the] defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.
¶237Id. As explained below, Appellant’s Brady claim fails for the simple
¶238reason that he has failed to establish the existence of any deal
¶239between Lehr and the State.
¶240 At trial, Lehr testified that he reported Appellant’s
¶241incriminating statements because he found them “quite disturbing”
¶242and they bothered his conscience. Lehr testified that he never asked
¶243 15 for anything in exchange for his cooperation and that, while the
¶244investigator had offered to write a letter to the prosecutor on his
¶245behalf, to Lehr’s knowledge, the investigator had never done so.
¶246Lehr testified further that no one had offered him anything in
¶247exchange for his testimony and that his assistance in Appellant’s
¶248case was never mentioned in the course of his plea negotiations.
¶249This testimony was supported by the certified copy of Lehr’s
¶250conviction, which reflects that his probation on the aggravated
¶251assault was not conditioned on his testimony in Appellant’s case. In
¶252addition, in a colloquy during Lehr’s testimony at trial, the
¶253prosecutor denied the existence of any agreement. See Sherman v.
¶254City of Atlanta, 293 Ga. 169, 174 (4) (744 SE2d 689) (2013) (unless
¶255objected to by opposing counsel or the court, an attorney’s statement
¶256in place will be accepted as true without further evidence or
¶257confirmation). In light of this evidence, and in the absence of any
¶258evidence to the contrary, Appellant’s assertion that the State made
¶259a deal with Lehr amounts to nothing more than speculation. See
¶260Brannon v. State, 298 Ga. 601, 605 (3) (a) (783 SE2d 642) (2016)
¶261 16 (“[M]ere speculation is insufficient to substantiate [a] claim that the
¶262State withheld exculpatory evidence[.]”). Accordingly, Appellant’s
¶263claim in this regard fails.
¶264 Judgment affirmed. All the Justices concur.
¶265 17