¶1In the Supreme Court of Georgia
¶2 Decided: September 21, 2021
¶3 S21A0829. WASHINGTON v. THE STATE.
¶4 MCMILLIAN, Justice.
¶5 Brantley Washington and his co-defendants, Chrishon Siders
¶6and Haleem Graham, were convicted of malice murder, first degree
¶7burglary, and other crimes in connection with the shooting death of
¶8Seine Yale Jackson. 1 Washington appeals, asserting that the trial
¶9 1 The crimes occurred on January 6, 2016. On May 17, 2016, a Fulton County grand jury indicted Washington, Siders, and Graham on charges of participation in criminal street gang activity (Count 1), malice murder (Count 2), felony murder (Counts 3-7), first degree home invasion (Count 11), aggravated assault with a deadly weapon (Count 12), false imprisonment (Count 13), first degree burglary (Count 14), and possession of a firearm during the commission of a felony (Count 15). The grand jury separately indicted Siders and Graham on charges of possession of a firearm by a convicted felon (Counts 16-18) and felony murder predicated on those felonies (Counts 8-10). At a joint trial held from February 19 to 28, 2019, the jury found Washington guilty of Counts 2-6 and 11-15. The jury also found Siders guilty of Counts 2- 6, 10-15, and 18 and Graham guilty of Counts 3-6, 8-9, and 11-17; their convictions are not at issue in this appeal. The trial court nolle prossed Counts 1 and 7. On March 1, 2019, the trial court sentenced Washington to serve life in prison without the possibility of parole for malice murder, life in prison for first degree home invasion, ten years in prison for false imprisonment, and five court erred in admitting hotel surveillance videos from the day
¶10before and the day of the crimes, along with the opinion testimony
¶11of two detectives describing the surveillance videos and a dashcam
¶12video recording of a traffic stop taken on the night of the crimes.
¶13Washington also claims that he received ineffective assistance of
¶14counsel when his trial counsel failed to object to that evidence.
¶15Discerning no error, we affirm Washington’s convictions.
¶16 Viewed in the light most favorable to the jury’s verdicts, the
¶17evidence presented at trial showed that at approximately 1:57 a.m.
¶18on January 6, 2016, police officers responded to a call of shots fired
¶19at a rental unit behind a house on Glen Iris Drive in Fulton County.
¶20The responding officers found Jackson dead; he had been gagged
¶21years in prison for possession of a firearm during the commission of a felony, all to run consecutively. The aggravated assault count merged with the malice murder conviction, and the first degree burglary count merged with the first degree home invasion conviction; the remaining felony murder counts were vacated by operation of law. Washington timely filed a motion for new trial on March 4, 2019, which he amended through new counsel on February 4, 2020. The trial court conducted a joint hearing on the defendants’ motions for new trial on November 2, 2020, and a separate hearing on November 13, 2020, related only to Washington. On January 27, 2021, the trial court denied Washington’s motion for new trial, as amended, and Washington timely appealed. The case was docketed in this Court to the April 2021 term of court and submitted for a decision on the briefs. 2 with a belt and necktie, “hog-tied” with extension cords, and shot in
¶22the back of the head. Investigation at the scene showed no signs of
¶23forced entry, but the apartment appeared to have been ransacked.
¶24Officers collected an empty clear jar emitting the odor of fresh
¶25marijuana. Later GBI testing of the jar found a fingerprint match
¶26for Washington. An autopsy revealed that Jackson suffered wounds
¶27consistent with being bound and gagged and had died from any one
¶28of four fatal gunshots to the head.
¶29 The day before the shooting, Washington, Siders, and Graham
¶30arrived together at a Best Western hotel in Walterboro, South
¶31Carolina 2 around 1:28 p.m. in a red Pontiac Grand Prix. Hotel
¶32surveillance video recordings depicted the vehicle entering the
¶33parking lot and three individuals, identified by Detective Scott
¶34Berhalter as Washington, Siders, and Graham, exiting the car.
¶35Additional video recordings showed the car leaving the parking lot
¶36around 8:21 p.m. that evening. Chris Treadwell, a Taliaferro
¶37 2 The hotel is 249 miles from Glen Iris Drive, with a drive time of approximately four hours and twelve minutes.
¶38 3 County 3 sheriff’s deputy, testified that he conducted a traffic stop on
¶39a red Pontiac Grand Prix with South Carolina tags around 11:27
¶40p.m. as it headed to Atlanta and cited Graham, who was driving, for
¶41speeding. Two other men were in the vehicle.
¶42 Meyonta Murphy testified that she visited her mother, who
¶43lived in another rental unit on the same property on Glen Iris Drive,
¶44at approximately 1:45 a.m. on January 6, 2016. When she arrived,
¶45she noticed an unfamiliar red Pontiac idling in front of the house
¶46with two people inside. As she left her mother’s apartment about ten
¶47minutes later, Murphy passed a man walking up the driveway
¶48toward the house. Murphy took note of the vehicle’s South Carolina
¶49license plate number before she left. Shortly thereafter, Murphy’s
¶50mother heard nearby gunshots and called 911. Murphy later told
¶51investigating officers about her observations of the red Pontiac and
¶52the man she encountered, whom she later identified in a
¶53photographic line-up as Siders.
¶54 3 Taliaferro County is approximately 90 miles east of Atlanta along Interstate 20. 4 Jackson’s brother testified that Siders was always asking
¶55Jackson to “front” him drugs without payment, but Jackson
¶56continued to do business with him because Siders was related to
¶57Jackson’s uncle. Jackson’s friend, Marc Huewitt, testified that
¶58Jackson visited him around 6:00 p.m., just hours before Jackson was
¶59shot. Jackson mentioned that he was planning to meet with a man
¶60related to his uncle later that evening and was “very concerned”
¶61because he had a bad feeling about the man.
¶62 Detective Scott Demeester, who was qualified as an expert in
¶63cell phone data interpretation and cell site analysis, testified
¶64regarding data recovered from the defendants’ cell phones. A cell
¶65phone associated with Washington called and texted Jackson’s cell
¶66phone several times in the days leading up to the shooting. At 6:39
¶67p.m. on January 5, Washington texted an unidentified phone
¶68number, stating, “This Brantley. Call me asap. I’m ready to buy that
¶69thing back from you. I got the money.” When Washington called
¶70Jackson around 7:45 p.m. that evening, Washington was near the
¶71Best Western hotel before leaving shortly thereafter and traveling
¶72 5 in a northwestern direction. At 11:23 p.m., Siders’s cell phone was
¶73near Taliaferro County, approximately two hours and thirty
¶74minutes from the Best Western. At 11:45 p.m., Washington’s cell
¶75phone sent a text to Jackson, stating, “Got a speeding ticket lol.”
¶76When Washington called Jackson at 1:08 a.m., Washington’s cell
¶77phone was near Glen Iris Drive. That call was the last call ever made
¶78on Washington’s cell phone. After that point, the cell phone
¶79remained stationary near Interstate 20 in DeKalb County and
¶80received numerous calls that went unanswered, consistent with
¶81having been “dumped” out of a vehicle. Siders’s and Graham’s
¶82phones placed various calls to each other between 1:10 and 1:48 a.m.
¶83while they were in the area of Glen Iris Drive. Approximately one
¶84hour after the shooting was reported, Siders’s cell phone was on
¶85Interstate 20, heading east away from Atlanta. The next time
¶86Graham’s and Siders’s cell phones were used was in Walterboro on
¶87the morning of January 6.
¶88 Additional hotel surveillance video showed that the Pontiac
¶89entered the Best Western parking lot at 6:20 a.m. on the morning
¶90 6 after the shooting. Although the video did not show who exited the
¶91car, it did show three men unload what appeared to be heavy bags
¶92from the Pontiac. At 8:01 a.m., the three men returned to the car
¶93and left the hotel. The car then returned at 9:56 a.m. before leaving
¶94for the final time at 10:01 a.m. The State also introduced a receipt
¶95showing that Graham had checked into a room at the Best Western
¶96hotel around 1:28 p.m. on January 5, 2016, and checked out at 10:00
¶97a.m. the following morning.
¶98 Siders, the only defendant to testify at trial, told the jury that
¶99he knew Jackson through his cousin and that he used to purchase
¶100drugs from Jackson. Siders also testified that he and Washington
¶101were part of a musical group that Graham managed and that they
¶102met in South Carolina on January 5, 2016, to work in a music studio.
¶103That evening, they decided to drive to Atlanta for a promotional
¶104photo shoot, but Washington stayed at the hotel because he became
¶105ill with “flu-like symptoms . . . throwing up all over the place.”
¶106According to Siders, while he and Graham were in Atlanta, he called
¶107Jackson to buy “some smoke,” but Huewitt answered Jackson’s
¶108 7 phone and told him to come to Jackson’s house. When Siders arrived
¶109at Jackson’s address, he found Huewitt outside and told him that he
¶110wanted “an eighth.” Huewitt responded, “An eighth? Man, I thought
¶111you wanted some weight. We don’t got no eighth,” before walking
¶112away. Siders testified that he then returned to the car and told
¶113Graham that Huewitt was “acting really funny just now,” and they
¶114went to a nearby club where they stayed for a short while before
¶115returning to South Carolina. 4
¶116 4 Although not separately enumerated as error, Washington nonetheless argues the sufficiency of the evidence in the body of his appellate brief. To the extent Washington has properly challenged the sufficiency of the evidence, we are unpersuaded. When evaluating the sufficiency of the evidence under the Fourteenth Amendment to the United States Constitution, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis omitted). “Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.” Mims v. State, 304 Ga. 851, 853 (1) (a) (823 SE2d 325) (2019) (citation and punctuation omitted). We conclude that the evidence presented at trial was sufficient to authorize a rational jury to find Washington guilty beyond a reasonable doubt at least as a party to the crimes for which he was convicted. See OCGA § 16-2- 20 (defining parties to a crime); Shealey v. State, 308 Ga. 847, 850 (1) (843 SE2d 864) (2020) (affirming convictions where there was ample evidence from which the jury could find that appellant aided, abetted, and encouraged the crimes and shared a common criminal intent with those who shot the victim). 8 1. Washington asserts that the trial court erred by admitting
¶117surveillance videos from the Best Western without proper
¶118authentication or foundation. He concedes that, because this
¶119evidence was admitted at trial without objection, we review this
¶120claim only for plain error. See Gates v. State, 298 Ga. 324, 327 (3)
¶121(781 SE2d 772) (2016); OCGA § 24-1-103 (a), (d).
¶122 To establish plain error, an appellant must meet each prong of
¶123a four-prong test:
¶124 [F]irst, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised if only the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
¶125Lewis v. State, ___ Ga. ___, ___ (4) (859 SE2d 1) (2021) (citation,
¶126punctuation, and emphasis omitted). As we have noted,
¶127 9 affirmatively establishing all four prongs “is a difficult standard to
¶128satisfy.” Id. (citation and punctuation omitted).
¶129 Here, Washington urges that the State’s use of a business
¶130record certification was not sufficient to authenticate the
¶131surveillance videos and that the trial court therefore committed
¶132plain error by admitting the evidence without further
¶133authentication. However, Washington is unable to satisfy the first
¶134prong of the plain error test. In his opening statement at trial,
¶135Washington’s counsel admitted that his client was at the Best
¶136Western hotel and explained that the State would probably
¶137introduce surveillance footage showing that Washington was there,
¶138but claimed that the State would not be able to show that
¶139Washington was at or near the scene of the crime. This opening
¶140statement was consistent with Washington’s defense theory – that
¶141he went to the hotel in South Carolina but did not travel with his co-
¶142defendants to Atlanta – and with Sider’s testimony that Washington
¶143stayed behind at the hotel when he and Graham went to Atlanta
¶144 10 because Washington was ill. 5
¶145 In evaluating the first prong of the plain error test, a strategic
¶146decision to refrain from objecting may constitute “the equivalent of
¶147an affirmative waiver.” Griffin v. State, 309 Ga. 860, 865 (2) (849
¶148SE2d 191) (2020) (“[T]he appellate court can conclude that the
¶149defendant intentionally relinquished or abandoned a known right if
¶150the appellate court can discern a tactical reason on the part of the
¶151defense for failing to take appropriate action to preserve that right.”
¶152(citation and punctuation omitted)). Based on the circumstances of
¶153this case, it is clear that Washington strategically and intentionally
¶154refrained from objecting to the admission of the surveillance video
¶155and instead sought to incorporate it into his defense theory. Thus,
¶156Washington intentionally relinquished any claim that the trial court
¶157erred in admitting this evidence, and this claim of error fails. 6
¶158 5 See Division 3 (a) below for further discussion of trial counsel’s strategy in this regard. 6 Because Washington is required to satisfy each prong of the plain error
¶159test, we need not address whether this claim also fails under the other prongs. See Hill v. State, 310 Ga. 180, 194 (12) (a) (850 SE2d 110) (2020) (“The Court need not analyze all elements of the plain-error test when the appellant fails to establish one of them.”). 11 2. Washington also asserts that the trial court erred by
¶160admitting the detectives’ opinion testimony identifying Washington
¶161(a) in the Best Western surveillance videos and (b) in the traffic stop
¶162dashcam video. Because trial counsel did not object at trial,
¶163Washington concedes that we also review these claims for plain
¶164error. See Gates, 298 Ga. at 327 (3).
¶165 (a) Detective Berhalter testified that when he initially
¶166contacted personnel at the Best Western hotel, they would not
¶167provide information over the phone, so he involved the local county
¶168sheriff’s office, which was able to obtain the room bill, form of
¶169payment, and several hours of surveillance recordings from around
¶170the property. Detective Berhalter explained that he then pored over
¶171this evidence, which helped lead to the identification of Siders and,
¶172eventually, Graham and Washington through various social media
¶173searches. Detective Berhalter then described for the jury a portion
¶174of the surveillance videos in which he identified each of the three
¶175defendants exiting a Pontiac and entering the hotel at 1:28 p.m. on
¶176 12 the day before the murder. 7 Detective Berhalter also testified that
¶177when the Pontiac left the hotel later that evening, the surveillance
¶178videos did not show who was in the vehicle and that, when the
¶179Pontiac returned to the hotel the following morning, the surveillance
¶180videos did not record the occupants exiting the vehicle, although it
¶181did show three individuals removing baggage from the vehicle.
¶182 For the same reasons stated in Division 1 above, Washington
¶183cannot establish the first prong of the plain error test with respect
¶184to this testimony, and this enumeration of error therefore fails. See
¶185Griffin, 309 Ga. at 865 (2).
¶186 (b) Prior to trial, Washington’s trial counsel filed a motion in
¶187limine to exclude “improper opinion testimony or argu[ment] that
¶188[Washington] was present in a vehicle stopped by a law enforcement
¶189officer in Taliaferro County, Georgia, that was bound for the victim’s
¶190residence in Atlanta, Georgia, on the night of the alleged homicide.”
¶191 7 Detective Demeester never identified Washington in the Best Western surveillance videos at trial; therefore, to the extent Washington argues that the trial court erred in admitting such testimony, that argument necessarily fails. 13 The trial court denied the motion. At trial, Detective Berhalter
¶192testified about the course of his investigation, including his review
¶193of the dashcam video. He explained that, after rewatching the
¶194dashcam video later in his investigation, he determined that there
¶195were three individuals in the Pontiac at the time it was stopped in
¶196Taliaferro County. However, he did not identify Washington as the
¶197third person in the vehicle with Siders and Graham. Detective
¶198Demeester also testified that he reviewed the dashcam video and
¶199believed that there were three people in the vehicle, including a
¶200passenger who was smoking in the backseat. However, again, the
¶201transcript clearly shows that Detective Demeester did not opine that
¶202the video depicted Washington in the vehicle. 8
¶203 Because neither detective identified Washington and
¶204 8 We note that neither of the detectives’ testimony falls within the confines of Washington’s motion in limine; in the absence of a separate contemporaneous objection, our review of this claim is limited to plain error review. See Williams v. Harvey, 311 Ga. 439, 452 (2) (858 SE2d 479) (2021) (“Although a party does not waive an error by failing to object to admission of evidence after a motion in limine is denied, this rule cannot be invoked to preserve a different, if perhaps related, error. To allow such a procedure would deprive the trial court of the opportunity to consider the error alleged, and take corrective action, if necessary.” (citation omitted)).
¶205 14 Washington’s argument on appeal is that the trial court erroneously
¶206permitted opinion testimony identifying him, Washington cannot
¶207establish error, much less plain error, and this claim fails. 9 See
¶208Thornton v. State, 307 Ga. 121, 124-25 (2) (b) (834 SE2d 814) (2019)
¶209(where appellant’s claim is directly contradicted by the record,
¶210appellant is unable to show error, much less plain error).
¶211 3. Washington claims that his trial counsel provided ineffective
¶212assistance by failing to object to (a) the admission of the hotel
¶213surveillance videos and (b) the detectives’ opinion testimony as to
¶214the identity of Washington on the surveillance and dashcam videos.
¶215To prevail on these claims, Washington must show that his trial
¶216counsel’s performance was deficient and that, but for such deficient
¶217performance, there is a reasonable probability that the result of the
¶218trial would have been different. See Strickland v. Washington, 466
¶219 9 To the extent that Washington argues more generally that the trial court committed plain error in allowing the detectives to “narrate” the dashcam video, we are not persuaded. The transcript shows that the detectives did not narrate the approximately eight-minute video. Rather, the detectives explained what portion of the video led them to believe there were three individuals in the vehicle at the time of the stop. 15 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To prove
¶220deficient performance, Washington must establish that counsel
¶221“performed at trial in an objectively unreasonable way considering
¶222all the circumstances and in the light of prevailing professional
¶223norms.” Middlebrooks v. State, 310 Ga. 748, 751 (3) (854 SE2d 503)
¶224(2021) (citation and punctuation omitted). In doing so, Washington
¶225“must overcome the strong presumption that trial counsel’s conduct
¶226falls within the broad range of reasonable professional conduct.”
¶227Moore v. State, 306 Ga. 532, 536 (3) (832 SE2d 384) (2019) (citation
¶228and punctuation omitted).
¶229 (a) As discussed above in Division 1, trial counsel made a
¶230strategic decision not to object to the surveillance videos. At the
¶231motion for new trial hearing, trial counsel testified that he did not
¶232object to the admission of the hotel surveillance videos because “the
¶233main part of [his] strategy in representing [Washington] was to
¶234establish that he was at the hotel and never left the hotel, and the
¶235videos would have shown his presence on the premises.” This
¶236strategy was evident from trial counsel’s opening statement that the
¶237 16 State would not be able to show that Washington left the hotel with
¶238Siders and Graham when they went to Atlanta, a strategy that
¶239remained consistent throughout the trial. On cross-examination,
¶240trial counsel elicited testimony from Siders that Washington did not
¶241travel to Atlanta with him and Graham because Washington was ill
¶242and had stayed at the hotel. During closing argument, trial counsel
¶243argued that the jury should believe Siders’s testimony and should
¶244therefore find that Washington was not guilty.
¶245 Although the hotel surveillance videos also show that
¶246Washington was with Siders and Graham during the afternoon
¶247before and the morning after the shooting, that evidence was
¶248cumulative of other admissible evidence, including Siders’s
¶249testimony and cell-site location data from the cell phone associated
¶250with Washington. Accordingly, we cannot say that the strategy to
¶251use the surveillance videos and not object to them was unreasonable,
¶252and, thus, Washington is unable to show that his trial counsel’s
¶253performance was constitutionally deficient. See Griffin, 309 Ga. at
¶254867 (3) (2020) (withholding objection to allow evidence that supports
¶255 17 defense theory is a reasonable trial strategy and does not amount to
¶256ineffective assistance of counsel).
¶257 (b) For the reasons stated above in Division 2 (b), to the extent
¶258Washington alleges trial counsel should have objected to the
¶259detectives’ identification of Washington on the dashcam video, he
¶260cannot show either deficient performance or prejudice because
¶261neither detective identified Washington as the third person in the
¶262vehicle.
¶263 To the extent Washington argues more generally that trial
¶264counsel was constitutionally deficient in failing to object to the
¶265detectives’ testimony regarding the presence of a third person in the
¶266vehicle on the ground that it was impermissible opinion testimony,
¶267we are not persuaded. At the motion for new trial hearing, trial
¶268counsel testified that he could not recall why he did not object to the
¶269detectives’ testimony regarding the dashcam video, but he believed
¶270that he cross-examined Detective Berhalter “pretty strongly”
¶271because he had previously testified under oath at a preliminary
¶272hearing that there were only two people in the vehicle. Trial counsel
¶273 18 also raised the issue during cross-examination of Deputy Treadwell,
¶274who conducted the traffic stop, because the deputy’s original report
¶275said there were only two people in the traffic stop. In addition, trial
¶276counsel explained that he challenged the credibility of Detective
¶277Demeester after the detective admitted that, before he rewatched
¶278the video, he had been told by Detective Berhalter that there was a
¶279third person in the vehicle. The trial transcript supports trial
¶280counsel’s testimony and further shows that trial counsel also
¶281attempted to otherwise shed doubt on the detectives’ testimony,
¶282including by challenging their visual capabilities and the quality of
¶283the video.
¶284 In evaluating the reasonableness of trial strategy, every effort
¶285should be made “to eliminate the distorting effects of hindsight.”
¶286Davis v. State, 306 Ga. 140, 144 (3) (829 SE2d 321) (2019) (citation
¶287and punctuation omitted). “Thus, deficiency cannot be demonstrated
¶288by merely arguing that there is another, or even a better, way for
¶289counsel to have performed.” Id. Counsel’s decision to forgo an
¶290objection to testimony in favor of impeaching a witness or showing
¶291 19 inconsistencies in the evidence is a matter of trial strategy and, if
¶292reasonable, will not support an ineffectiveness claim. See Koonce v.
¶293State, 305 Ga. 671, 673 (2) (b) (827 SE2d 633) (2019). We conclude
¶294that trial counsel’s decision here was not patently unreasonable, and
¶295this claim therefore fails.
¶296 Judgment affirmed. All the Justices concur.
¶297 20