Heade v. State

¶1In the Supreme Court of Georgia

¶2 Decided: June 21, 2021

¶3 S21A0409. HEADE v. THE STATE.

¶4 LAGRUA, Justice.

¶5 A Gwinnett County jury found Appellant Demetrius Heade

¶6guilty of malice murder and other crimes in connection with the

¶7shooting death of Michael Harvey. 1 On appeal, Appellant contends

¶8that (1) the trial court erred in ruling that evidence of Appellant’s

¶9prior acts was admissible; (2) trial counsel provided ineffective

¶10 1 The crimes occurred on November 10, 2016. A Gwinnett County grand jury indicted Appellant and his co-defendant, Tilisha Tate, for malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. In May 2019, the jury found Appellant guilty of all charges. The trial court sentenced Appellant to serve life in prison without parole for malice murder, life in prison for felony murder, 20 years for aggravated assault to run concurrently with malice murder, and 5 years for the firearm possession to run concurrently with malice murder. Appellant filed a motion for new trial on May 20, 2019, which he amended through new counsel on October 7, 2019. Following an evidentiary hearing, on September 24, 2020, the trial court denied Appellant’s amended motion for new trial. Appellant then timely filed a notice of appeal on September 30, 2020. This Court docketed Appellant’s case for the term beginning in December 2020, and the case has been submitted for a decision on the briefs. assistance by conceding the admissibility of one of the acts; and (3)

¶11these multiple errors cumulatively prejudiced Appellant. We

¶12discern no reversible error on these grounds, but we have found two

¶13sentencing errors with regard to his convictions for felony murder

¶14and aggravated assault. For the reasons stated below, we affirm his

¶15convictions in part and vacate in part.

¶16 1. Viewed in the light most favorable to the verdicts, the

¶17evidence presented at trial showed that on November 10, 2016, at

¶18around 7:30 p.m., Appellant and Tilisha Tate, Appellant’s girlfriend

¶19and co-defendant at trial, visited a Citgo gas station located in

¶20Gwinnett County. The two were traveling in a stolen, gold 1996

¶21Honda Odyssey minivan and were meeting with a man who had

¶22agreed to purchase food for them because they had run out of money.

¶23After accompanying this man into the gas station to buy food,

¶24Appellant and Tate left the gas station in the gold minivan;

¶25Appellant was driving, and Tate was lying down in the back seat.

¶26As they were traveling on Button Gwinnett Drive, the victim,

¶27Michael Harvey, attempted to pass the minivan in his truck and

¶28 2 accidentally struck the front driver side area of the minivan. The

¶29impact startled and awoke Tate, and when she sat up, she saw

¶30Harvey’s truck enter a ditch and hit a pole, after which Harvey

¶31exited his truck and started running toward the minivan. According

¶32to Tate, Appellant then picked up a rifle he had in the minivan and

¶33shot Harvey from the driver’s seat, and Harvey “hit [] the ground.”

¶34Appellant tried to drive away from the scene but was unable to do

¶35so because one of the minivan’s tires was flat. Appellant and Tate

¶36abandoned the minivan and fled toward some woods beside the road.

¶37Tate had difficulty keeping up, having recently been shot in the leg

¶38by Appellant.2 Appellant threw the rifle in a ditch, and the two

¶39walked to the Las Palmas Apartments, a nearby apartment

¶40complex. About an hour later, Appellant and Tate got a ride from

¶41another man to the same Citgo gas station where the man replaced

¶42the food Appellant and Tate had left in the minivan. Appellant and

¶43Tate then stayed overnight with some friends at the apartment

¶44complex.

¶45 2 We will address this incident in more detail in Division 2 (a) below. 3  Officers responded to the shooting around 8:30 p.m. They

¶46found Harvey lying in the roadway, apparently lifeless, with a bullet

¶47wound to his chest. Officers also observed a black truck wrecked on

¶48the opposite side of the road and an older model minivan about 80

¶49yards away from the scene with a detached bumper and a single

¶50bullet hole through the driver’s side window. A few yards away from

¶51the minivan, officers recovered a loaded Winchester .30-.30 lever-

¶52action rifle from a drainage ditch. When officers cycled the lever,

¶53the rifle ejected an empty shell casing. 3 Harvey’s cause of death was

¶54determined to be a gunshot wound to the torso, and a GBI ballistics

¶55test concluded that bullet fragments recovered from Harvey’s body

¶56were fired from the same rifle found at the scene.

¶57 Officers discovered that the minivan at the scene had been

¶58stolen from Mobile, Alabama on November 2, 2016. Officers testified

¶59that they called the police in Mobile, who advised that they were

¶60investigating the November 2 theft of the minivan and the murder

¶61 3 At trial, one of the officers testified that when this type of weapon is fired, the used shell casing remains in the chamber until the lever is cycled. 4 of the minivan’s owner, Lavester Brennan. Gwinnett County

¶62officers learned that Appellant and Tate were suspects in the

¶63Brennan murder and had used Brennan’s credit card in and around

¶64the Mobile area after Brennan’s murder.

¶65 Officers obtained a search warrant for the minivan, and inside

¶66they found male and female clothing, a box of ammunition, and

¶67multiple .30-.30 rounds. Appellant’s fingerprints were found on the

¶68windows, as well as on items inside the minivan. Officers found

¶69receipts from Subway and Little Caesar’s restaurants. Appellant

¶70was seen in surveillance video from the Little Caesar’s, and both

¶71Appellant and Tate were seen in surveillance video from the

¶72Subway. Plastic bags and food products from a Citgo gas station

¶73were also found in the minivan. Officers went to the Citgo gas

¶74station near the accident site, and surveillance video from that gas

¶75station showed that Appellant and Tate made multiple visits to the

¶76gas station before and after the murder. In one video, the two were

¶77depicted leaving the gas station, entering a gold minivan, and

¶78departing toward the Las Palmas apartment complex.

¶79 5  On November 11, the day after the shooting, officers returned

¶80to the Citgo gas station. At about 5:30 p.m., Appellant and Tate

¶81visited the gas station, and officers apprehended them and took

¶82them into custody. Officers then interviewed Appellant and Tate

¶83and learned that neither had prior connections to Harvey. Tate told

¶84police that neither she nor Appellant were at the scene of the

¶85shooting, and that she did not know what was going on. She denied

¶86being involved in Harvey’s death and denied that she was in the van

¶87at the time of the shooting.

¶88 Tate was extradited back to Mobile in December 2016. On

¶89December 5, 2016, Gwinnett County officers investigating the

¶90murder of Harvey traveled to Mobile and interviewed Tate again.

¶91At that time, Tate confessed to being present when Appellant shot

¶92Brennan in Mobile on November 2, 2016, when Brennan’s minivan

¶93was stolen, as well as on November 10 when Appellant shot Harvey

¶94in Gwinnett County. However, Tate denied knowing that Appellant

¶95was planning to shoot Harvey. Tate indicated that she lied in her

¶96previous interview because she was scared of Appellant.

¶97 6  2. At a pretrial motions hearing, the trial court ruled that the

¶98State could present evidence at trial, over Appellant’s objection,

¶99concerning the following three prior acts of Appellant: (1) an alleged

¶100assault on Tate in Mobile (“the Tate assault”); (2) the alleged murder

¶101of Brennan in Mobile (“the Brennan murder”); and (3) an alleged

¶102armed robbery of Heather Crane in Gwinnett County (“the Crane

¶103robbery”). The trial court concluded that the probative value of this

¶104evidence outweighed any prejudicial effect and that the evidence

¶105was admissible to show motive, opportunity, intent, knowledge, and

¶106identity, as well as prior difficulties between Tate and Appellant.

¶107See OCGA §§ 24-4-403 (“Rule 403”) and 24-4-404 (b) (“Rule 404 (b)”).

¶108At trial, the jury heard testimony relating to the Tate assault, the

¶109Brennan murder, and the Crane robbery, which showed the

¶110following:

¶111 (a) The Tate Assault

¶112 According to Tate, in the summer of 2016, Appellant and Tate

¶113started a romantic relationship in Mobile. During this time period,

¶114Tate struggled with drug and alcohol addiction, and she regularly

¶115 7 engaged in prostitution in exchange for money and drugs. According

¶116to Tate, Appellant became possessive of Tate and angry about Tate’s

¶117prostitution, but he allowed her to perform one “trick” a day so they

¶118would have enough money to buy food and other necessities. After

¶119Appellant became violent with Tate, Tate ended the relationship

¶120and went to stay with friends. Appellant was upset and angry that

¶121Tate left him. On October 19, 2016, Appellant confronted Tate at

¶122one of her friend’s houses saying, “[W]e can do this the easy way or

¶123the hard way.” Tate said she did not care “which way you want to

¶124do it,” and Appellant pulled out a handgun and shot Tate in the leg.

¶125Tate was transported by emergency personnel to a hospital for

¶126treatment, where her leg was placed in a splint and, later, a red cast.

¶127While Tate was in the hospital, she reported the shooting to law

¶128enforcement officers. After Tate’s release from the hospital, she

¶129stayed briefly with a friend, but she soon resumed her relationship

¶130with Appellant.

¶131 (b) The Brennan Murder

¶132 According to Tate, on November 2, 2016, Tate and Appellant

¶133 8 were at a house in Mobile when Lavester Brennan drove by in his

¶134gold minivan. According to Tate, she regularly had sex with

¶135Brennan in exchange for money and drugs, and she stopped him and

¶136asked him to take her to get something to eat. Brennan then drove

¶137Tate to get some food. When Tate returned, Appellant was angry

¶138because he did not know why Tate left with Brennan. Tate met with

¶139Brennan again later the same day to use drugs at Brennan’s house.

¶140After Brennan and Tate got into an argument, Brennan began to

¶141give Tate a ride back to where she was staying. While they were

¶142stopped at a corner by Brennan’s house, Appellant pulled up beside

¶143Brennan’s minivan in a truck. Appellant got out of the truck and

¶144entered the minivan behind Tate, who was seated in the front

¶145passenger seat. Tate got out of the minivan and heard a gunshot.

¶146Appellant grabbed Tate’s collar and forced her back into the front

¶147passenger seat of the minivan. Appellant then dragged Brennan out

¶148of the driver’s seat and onto the street and drove away in the

¶149minivan. Tate testified that she did not run or scream for help out

¶150of fear of Appellant. Brennan died several days later from a gunshot

¶151 9 wound to the chest.

¶152 According to Tate, Appellant and Tate drove to Appellant’s

¶153cousin’s house, where Appellant picked up a .30-30 “shotgun.” While

¶154they were at the cousin’s house, Appellant cut the red cast off Tate’s

¶155leg with a knife. Tate testified that she needed the cast and could

¶156not put any pressure on her foot, but Appellant demanded they

¶157remove it, stating, “[T]hey was going to be looking for somebody with

¶158a red cast.” Appellant and Tate then drove around the Mobile area

¶159in the minivan and made purchases, including shoes, televisions,

¶160cell phones, and beauty products, at several stores using Brennan’s

¶161credit card, which had been left in the minivan. 4 When they tried to

¶162purchase another television at Walmart, the card was declined. At

¶163that point, Appellant and Tate had very little money left, and they

¶164left the area and drove to Gwinnett County in Brennan’s minivan.

¶165Around this time, Tate used a cell phone she had purchased to find

¶166news articles about what happened to Brennan in Mobile, but could

¶167 4The activity on Brennan’s credit card assisted authorities in identifying Appellant and Tate as the suspects in Brennan’s murder. 10 not find anything. The two arrived at the Peachtree Inn and Suites

¶168in Gwinnett County on or about November 7, 2016, and slept in the

¶169minivan for a couple of days. They also visited and stayed at the Las

¶170Palmas Apartments between November 9 and 11. At some point

¶171before Harvey’s murder, Appellant and Tate tried to pawn

¶172Brennan’s minivan in Gwinnett County because they were out of

¶173money, but they could not do so because they did not have the title

¶174to the vehicle.

¶175 (c) The Crane Robbery

¶176 According to Tate, Appellant robbed Heather Crane before

¶177noon on November 10, the day of Harvey’s murder. Appellant

¶178threatened Crane, a guest of the Peachtree Inn and Suites, by

¶179pointing the rifle at her and taking her purse. After removing the

¶180little money found inside Crane’s purse, Appellant abandoned the

¶181purse at a Subway.

¶182 Dominique Upshaw, Crane’s boyfriend at the time, testified

¶183that after the robbery, 5 Crane entered their shared hotel room and

¶184 5 Crane passed away prior to trial. 11 was “frantic.” Crane said a man in a vehicle approached her outside

¶185the hotel, pointed a gun at her, and robbed her. Crane then reported

¶186the theft to hotel staff. Rana Jawanda, the owner of the hotel,

¶187retrieved surveillance video of the robbery and showed Crane the

¶188video of the theft. During their subsequent conversation, Crane

¶189gave Jawanda a more detailed description of the events, including

¶190that the perpetrator was traveling in a Japanese model van with a

¶191female occupant. Crane stated that the man exited the van and held

¶192Crane at gunpoint with an old, rusted, double-barrel gun. At trial,

¶193Jawanda identified Brennan’s minivan as the one shown in the hotel

¶194surveillance video depicting the robbery of Crane.

¶195 3. Turning to Appellant’s specific contentions with respect to

¶196the trial court’s admission of these prior acts, Appellant contends

¶197that the trial court erred (a) by ruling in its order denying

¶198Appellant’s motion for new trial that these acts were intrinsic

¶199evidence, and (b) by admitting these acts at trial as extrinsic

¶200evidence. We conclude that the evidence was properly admitted as

¶201intrinsic evidence, so we need not address its potential admission as

¶202 12 extrinsic evidence under Rule 404 (b). See Smith v. State, 307 Ga.

¶203263, 272 (2) (c) (834 SE2d 1) (2019) (“[B]ecause the evidence was

¶204intrinsic, it was outside the reach of Rule 404 (b).” (citation and

¶205punctuation omitted)).

¶206 Evidence is admissible as intrinsic evidence when it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense . . . . [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 . . . . [E]vidence of other acts is inextricably intertwined with the evidence regarding the charged offense if it forms an integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted. And this sort of intrinsic evidence remains admissible even if it incidentally places the defendant’s character at issue.

¶207Williams v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350)

¶208(2017) (citations and punctuation omitted). “[T]here is no bright-

¶209line rule regarding how close in time evidence must be to the

¶210charged offenses, or requiring evidence to pertain directly to the

¶211 13 victims of the charged offenses, for that evidence to be admitted

¶212properly as intrinsic evidence.” Harris v. State, 310 Ga. 372, 381 (2)

¶213(b) (850 SE2d 77) (2020). “[W]e review a trial court’s ruling

¶214admitting evidence as intrinsic for an abuse of . . . discretion.” Id. at

¶215377.

¶216 Here, all three acts were part of the chain of events leading to

¶217the charged crimes. The Tate assault illustrated Tate’s tumultuous

¶218relationship with Appellant and explained why she was afraid of

¶219Appellant. It demonstrated why she stayed with Appellant until

¶220and after Harvey’s murder, even initially denying their involvement

¶221because she feared Appellant. See McCammon v. State, 306 Ga. 516,

¶222522 (2) (832 SE2d 396) (2019) (co-defendant’s testimony that he and

¶223appellant smoked marijuana together six months before the murder,

¶224“[w]hile . . . further afield from the charged crimes, . . . was a

¶225natural part of [the co-defendant’s] account of his relationship with

¶226[a]ppellant”); see also Williams, 302 Ga. at 486 (prior act helped

¶227explain to jury, among other things, why a victim refused the

¶228defendant’s advances and the motive for the victim to end her

¶229 14 relationship with the defendant). The evidence also explained why

¶230Tate had a red cast on her leg, which Appellant later sought to

¶231remove to avoid detection by authorities. When considered in light

¶232of the other evidence in this case, evidence of the Tate assault was

¶233reasonably necessary to complete the story for the jury and was

¶234therefore intrinsic evidence. See Harris, 310 Ga. at 378 (2) (b)

¶235(evidence was necessary to complete story for the jury, and therefore

¶236intrinsic, where it explained motivation and offered context to other

¶237witnesses’ accounts).

¶238 Similarly, the Brennan murder explained why Appellant and

¶239Tate were driving Brennan’s gold minivan and why they had fled

¶240from Mobile, Alabama to Gwinnett County. Through the minivan,

¶241Appellant was tied not only to Brennan’s murder, but also to the

¶242credit card transactions in Mobile, the Crane robbery, and

¶243ultimately to Harvey’s murder. Perhaps most importantly, the

¶244Brennan murder explained Appellant’s motive to evade authorities.

¶245Appellant went so far as to remove the red cast from Tate’s leg

¶246immediately after the Brennan murder because he believed “they

¶247 15 was going to be looking for somebody with a red cast.” This motive

¶248explained why he shot Harvey; killing Harvey after the car crash

¶249would delay the police response to the crash and eliminate the only

¶250witness. Indeed, Appellant continued to evade capture after

¶251murdering Harvey, as Tate testified that, as they were fleeing the

¶252scene, Appellant said, “[S]ee what you made me do?” He also talked

¶253about how he was going to make Tate engage in more prostitution

¶254to get money for a bus ticket. Therefore, the Brennan murder was

¶255also an important part of the story and admissible as intrinsic

¶256evidence.

¶257 The Crane robbery was the next link in Appellant and Tate’s

¶258crime spree. After stealing Brennan’s minivan and exhausting the

¶259credit cards they found in the minivan, Appellant and Tate were in

¶260need of money. The armed robbery, in which Appellant used the

¶261stolen minivan and the rifle, was how he obtained money.

¶262Surveillance video indicated that the perpetrator of the robbery was

¶263in a gold minivan identical to the one Appellant had stolen from

¶264Brennan. Appellant later abandoned the purse he stole from Crane

¶265 16 at the same Subway restaurant for which a receipt was found in the

¶266van after the Harvey murder. And the robbery added another

¶267reason for Appellant to avoid capture by the police. Therefore, the

¶268Crane robbery, while not strictly necessary to the prosecutor’s case,

¶269was nonetheless reasonably necessary to complete the story for the

¶270jury. See Harris, 310 Ga. at 379 (2) (b) (“[A]lthough evidence of the

¶271uncharged criminal conduct may not be necessary to prove the

¶272charged offense, there is no requirement that the government

¶273proffer only enough evidence to allow the jury to convict, and no

¶274more, and this evidence helped the jury understand the sequence of

¶275events that led to the discovery of the firearm, and to [the

¶276appellant’s] arrest.” (citation and punctuation omitted)).

¶277Accordingly, evidence of the Crane robbery was relevant as intrinsic

¶278evidence.

¶279 “Relevant [intrinsic] evidence may be excluded if its probative

¶280value is substantially outweighed by the danger of unfair prejudice,

¶281confusion of the issues, or misleading the jury or by considerations

¶282of undue delay, waste of time, or needless presentation of cumulative

¶283 17 evidence.” OCGA § 24-4-403. “There is no mechanical solution for

¶284this balancing test,” and “a trial court must undertake in each case

¶285a considered evaluation of the proffered justification for the

¶286admission of such evidence and make an independent

¶287determination.” Jones, 297 Ga. at 163 (3). We have explained that

¶288this balance should be struck in favor of admissibility. See Carston

¶289v. State, 310 Ga. 797, 803 (3) (b) (854 SE2d 684) (2021); see also Hood

¶290v. State, 309 Ga. 493, 500-501 (2) (847 SE2d 172) (2020) (“[O]ther

¶291acts evidence should be excluded if it constitutes [a] matter of scant

¶292or cumulative probative force, dragged in by the heels for the sake

¶293of its prejudicial effect.” (citation and punctuation omitted)). “[I]n

¶294reviewing issues under Rule 403, we look at the evidence in a light

¶295most favorable to its admission, maximizing its probative value and

¶296minimizing its undue prejudicial impact.” Anglin v. State, 302 Ga.

¶297333, 337 (3) (806 SE2d 573) (2017) (citation omitted).

¶298 As explained above, the three prior acts here were probative to

¶299explaining the context of the charged crimes, the relationship

¶300between Appellant and Tate, why Appellant and Tate were in a

¶301 18 stolen gold minivan with a rifle, why Tate was reluctant to leave

¶302Appellant, and why Appellant and Tate were in Gwinnett County in

¶303the first place. Most importantly, the Brennan murder and the

¶304Crane robbery were highly probative of Appellant’s motive for

¶305killing Harvey after Harvey caused an accident – Appellant was

¶306fleeing authorities and evading apprehension for Brennan’s murder

¶307and Crane’s robbery, as the prosecutor argued at trial.

¶308Furthermore, the trial court gave a limiting instruction to the jury,

¶309directing it to consider the evidence only on the issues of intent,

¶310identity, knowledge, motive, and opportunity, which reduced the

¶311prejudicial impact to Appellant. Thus, the trial court could

¶312determine, in its discretion, that the prejudicial impact of the three

¶313acts, while significant, was not unfair and did not substantially

¶314outweigh the probative value of this evidence. See Mosley v. State,

¶315307 Ga. 711, 715 (2) (838 SE2d 289) (2020) (evidence suggested that

¶316appellant engaged in a crime spree, and “though the intrinsic

¶317evidence indirectly implicated [the appellant] in additional criminal

¶318acts and had only minimal evidentiary value, we cannot say that the

¶319 19 trial court abused its discretion in concluding that the probative

¶320value of this evidence was not substantially outweighed by the

¶321danger of unfair prejudice”); see also Anglin, 302 Ga. at 337 (3) (“[I]n

¶322a criminal trial, inculpatory evidence is inherently prejudicial; it is

¶323only when unfair prejudice substantially outweighs probative value

¶324that [Rule 403] permits exclusion.” (Citation and punctuation

¶325omitted)). Accordingly, we hold that the trial court did not abuse its

¶326discretion in finding that the three prior acts were admissible as

¶327intrinsic evidence.

¶328 Appellant further argues that these three acts were

¶329inadmissible as extrinsic evidence under Rule 404 (b).6 However,

¶330the trial court provided a limiting instruction to the jury, which

¶331narrowed the scope for which the jury could consider the evidence

¶332and thus minimized any potential harm. Because the evidence was

¶333properly admitted as intrinsic evidence, however, we need not

¶334address its admission as extrinsic evidence under Rule 404 (b). See

¶335 6 As discussed above, the acts would have been admissible under Rule 404 (b) at least for the purpose of motive. 20 Smith, 307 Ga. at 272 (2) (c). See also Williams v. State, 302 Ga.

¶336474, 485 (IV) (d) (807 SE2d 350) (2017) (“The limitations and

¶337prohibition on other acts evidence set out in OCGA § 24-4-404 (b) do

¶338not apply to intrinsic evidence.” (citation and punctuation omitted));

¶339United States v. Rolett, 151 F3d 787, 790 (8th Cir. 1998) (“Although

¶340both parties treated the evidence of other acts as [federal] Rule 404

¶341(b) evidence, this court finds that such evidence is intrinsic evidence

¶342which is inextricably intertwined as an integral part of the

¶343immediate context of the crime charged.” (citation and punctuation

¶344omitted)). Accordingly, Appellant’s enumerations regarding the

¶345admissibility of the three prior acts fails.

¶346 4. Appellant next raises two related enumerations of error

¶347regarding the admission of the Tate assault evidence: that (a) the

¶348trial court erred in ruling that the Tate assault was admissible as a

¶349“prior difficulty” and (b) trial counsel provided constitutionally

¶350deficient performance by conceding that the Tate assault was

¶351admissible as a prior difficulty.

¶352 (a) At the pretrial motions hearing, the State proffered the Tate

¶353 21 assault evidence as a prior difficulty between Appellant and Tate,

¶354arguing that it was admissible to show the state of their

¶355relationship. Appellant’s counsel conceded that this particular

¶356incident was admissible as a prior difficulty and did not object to its

¶357admission.

¶358 Because Appellant did not object to the admission of the Tate

¶359assault, we review this claim only for plain error. See Brewner v.

¶360State, 302 Ga. 6, 12 (III) (804 SE2d 94) (2017) (plain error review

¶361where appellant did not assert any objection when other acts

¶362evidence was first introduced at trial). To prove plain error, among

¶363other things, “there must be an error or defect – some sort of

¶364deviation from a legal rule – that has not been intentionally

¶365relinquished or abandoned, i.e., affirmatively waived, by the

¶366appellant.” Id. Appellant conceded that the Tate assault evidence

¶367was admissible. Thus, Appellant affirmatively waived this error

¶368and cannot show plain error. Accordingly, this enumeration of error

¶369fails.

¶370 (b) Appellant contends that his trial counsel was

¶371 22 constitutionally ineffective for conceding the admissibility of the

¶372Tate assault evidence. We disagree.

¶373 To succeed on a claim of ineffective assistance of counsel,

¶374Appellant “must prove both that his lawyer’s performance was

¶375professionally deficient and that he was prejudiced as a result.”

¶376Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325) (2020) (citation

¶377and punctuation omitted); see also Strickland v. Washington, 466

¶378U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “[I]f [Appellant]

¶379fails to establish one prong, we need not examine the other.”

¶380Armstrong v. State, 310 Ga. 598, 607 (5) (852 SE2d 824) (2020)

¶381(citation and punctuation omitted).

¶382 We have explained that “[t]here is no deficient performance

¶383when an attorney fails to object to admissible evidence.” Perera v.

¶384State, 295 Ga. 880, 884-885 (3) (b) (763 SE2d 687) (2014). As

¶385discussed above, the Tate assault was admissible as intrinsic

¶386evidence, and therefore trial counsel did not perform deficiently.

¶387Appellant’s ineffective assistance claim accordingly fails.

¶388 5. In his final enumeration of error, Appellant contends that

¶389 23 the cumulative effect of the alleged errors warrants a new trial. See

¶390State v. Lane, 308 Ga. 10, 17 (1) (838 SE2d 808) (2020) (“We hold

¶391that the proper approach [to assessing multiple trial court

¶392errors] . . . is to consider collectively the prejudicial effect, if any, of

¶393trial court errors, along with the prejudice caused by any deficient

¶394performance of counsel). Here, Appellant has shown no error with

¶395respect to the admission of the three prior acts, as they were

¶396admissible as intrinsic evidence. Accordingly, there was no error,

¶397much less any cumulative error, and Appellant’s enumeration fails.

¶398 6. Although Appellant does not raise any sentencing issues on

¶399appeal, we have identified two errors in his sentencing. See Dixon

¶400v. State, 302 Ga. 691, 696-97 (4) (808 SE2d 696) (2017) (“We have

¶401the discretion to correct merger errors sua sponte . . . because a

¶402merger error results in an illegal and void judgment of conviction

¶403and sentence.”). Appellant was charged with and found guilty of

¶404malice murder, felony murder predicated on aggravated assault,

¶405aggravated assault, and possession of a firearm during the

¶406commission of a felony. The trial court sentenced Appellant to serve

¶407 24 life in prison without the possibility of parole for malice murder; life

¶408in prison concurrent for felony murder; 20 years concurrent for the

¶409predicate felony of aggravated assault; and five years consecutive

¶410for the firearm possession charge.

¶411 The trial court’s sentencing with regard to the felony murder

¶412was error, as the felony murder count should have been vacated by

¶413operation of law. “[W]hen a valid guilty verdict is returned on both

¶414malice murder and felony murder of the same victim, the defendant

¶415should be sentenced for the malice murder, and the alternative

¶416felony murder count stands vacated by operation of law as simply

¶417surplusage.” Hulett v. State, 296 Ga. 49, 53 (2) (766 SE2d 1) (2014)

¶418(citation and punctuation omitted; emphasis in original). Here,

¶419there was only one victim in relation to both the malice murder and

¶420felony murder counts. “It follows that the trial court erred in failing

¶421to sentence [Appellant] only on the malice murder count and that

¶422the separate sentence[] on the [alternative] felony murder [count]

¶423must be vacated,” because the felony murder conviction was “simply

¶424surplusage.” Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479)

¶425 25 (1993). Accordingly, we vacate Appellant’s conviction and sentence

¶426for felony murder.

¶427 The trial court’s sentencing with regard to the aggravated

¶428assault count was also error. “When the same conduct of an accused

¶429may establish the commission of more than one crime, the accused

¶430may be prosecuted for each crime. He may not, however, be

¶431convicted of more than one crime if . . . [o]ne crime is included in the

¶432other.” OCGA § 16-1-7 (a) (1). Separate convictions for the malice

¶433murder and aggravated assault of a single victim may be permitted

¶434where there is a deliberate interval between the infliction of a non-

¶435fatal injury and a subsequent fatal injury. See Johnson v. State, 300

¶436Ga. 665, 666-667 (2) (797 SE2d 903) (2017). Here, however,

¶437Appellant fired a single bullet that killed Harvey, and the single shot

¶438was the basis for both the aggravated assault and the malice murder

¶439charges; there was no evidence of a deliberate interval. Therefore,

¶440the trial court should have merged the aggravated assault charge

¶441with the malice murder conviction. Accordingly, we vacate

¶442Appellant’s conviction and sentence for aggravated assault. See id.

¶443 26 at 667 (“In the absence of some evidence of a ‘deliberate interval’

¶444between the infliction of any of the wounds the victim suffered, we

¶445must vacate [the appellant’s] aggravated assault conviction.”).

¶446 Judgment affirmed in part and vacated in part. All the Justices concur, except McMillian, J., who concurs in judgment only in Division 3.

¶447 27