¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: January 18, 2023
¶4 S22A0950. CLARK v. THE STATE.
¶5 WARREN, Justice.
¶6 William Clark was convicted of felony murder and other crimes
¶7in connection with the shooting death of Anthony King and the
¶8aggravated assault of Anthony Davis. 1 In this appeal, Clark
¶9 1The crimes occurred on August 3, 2012. In October 2012, a Richmond County grand jury indicted Clark and Jeremiah Kelly for malice murder, felony murder (based on the aggravated assault of King), two counts of aggravated assault (one against Davis and the other against his brother, Travis Davis), and three counts of possession of a firearm during the commission of a crime (based on the murder of King, the aggravated assault of Davis, and the aggravated assault of Travis). Clark alone was tried from October 11 to 14, 2016; the jury found him not guilty of malice murder and the aggravated assault and firearm offense against Travis, but guilty of the remaining crimes. The trial court sentenced him to serve life in prison without the possibility of parole for felony murder, 20 consecutive years for the aggravated assault against Davis, and five consecutive years each for the two counts of possession of a firearm during the commission of a crime. Kelly, who was tried in March 2015, was found not guilty of malice murder but guilty of the remaining counts against him; we address his appeal today in a separate opinion. See Kelly v. State, ___ Ga. ___ (Case No. S22A0979, Jan. 18, 2023). Clark filed a timely motion for new trial, which he amended twice through new counsel. After hearings in November 2021 and February 2022, the trial court contends that the evidence presented at his trial was legally
¶10insufficient to support his convictions for the crimes against King;
¶11the trial court applied the wrong standard in admitting evidence of
¶12an audio recording of his interview with the lead investigator for his
¶13case; the trial court committed plain error by failing to instruct the
¶14jury on knowledge, grave suspicion, mere presence, and mere
¶15association; and his trial counsel provided constitutionally
¶16ineffective assistance by failing to request those instructions and by
¶17failing to file a demurrer to the indictment. Each of these claims is
¶18meritless, so we affirm.
¶19 1. The evidence presented at Clark’s trial showed the
¶20following. 2 On the evening of August 3, 2012, King, Davis, and
¶21Davis’s brother, Travis Davis (“Travis”), hung out and drank alcohol.
¶22denied the motion in March 2022 but modified Clark’s sentence for felony murder to life with the possibility of parole. Clark then filed a timely notice of appeal, and his case was docketed to the August 2022 term of this Court and submitted for a decision on the briefs.
¶23 2 “Because this case requires an assessment of the harmful or prejudicial effect of certain alleged trial court errors and deficiencies of trial counsel, we lay out the evidence in detail and not only in the light most favorable to the verdicts.” Rawls v. State, 310 Ga. 209, 210 n.2 (850 SE2d 90) (2020). 2 Around 11:00 p.m., Travis drove them to a convenience store in
¶24Augusta to buy beer. Travis stayed in his SUV while King and Davis
¶25walked toward the store.
¶26 According to Davis, he and King recognized two young men,
¶27whom he identified at trial as Clark and Jeremiah Kelly, outside the
¶28store.3 Davis told King that he believed that Clark and Kelly had
¶29fired shots at him about two weeks earlier. King stopped to talk to
¶30them while Davis went inside the store. A surveillance video
¶31recording from the convenience store showed King, Clark, and Kelly
¶32calmly talking in front of the store at 11:00 p.m. A few minutes later,
¶33King went inside the store and Clark and Kelly walked out of view
¶34of the cameras. Davis testified that King then said something like
¶35“them little f**kers outside.” King and Davis purchased some beer
¶36and left the store.
¶37 Travis dropped off King and Davis on a nearby street so they
¶38could walk to a friend’s house. Davis testified as follows. As he and
¶39King walked through a parking lot, they saw Clark and Kelly again.
¶40 3 Clark was then 16 years old, and Kelly was 15 years old. 3 King said something to them; the four men started arguing; and
¶41Clark and Kelly pulled out guns. King and Davis were not carrying
¶42guns. An Oldsmobile pulled up, and two men, who were later
¶43identified as Curtis Washington and Treyvon Archie, told Clark and
¶44Kelly to put their guns away. Moments later, Travis pulled up in
¶45his SUV and tried to “defuse the situation.” Clark then fired his gun
¶46into the air; Kelly started shooting; and Clark shot toward Davis.
¶47King got in the SUV and began to drive away as Davis and Travis
¶48ran, and Kelly told Clark to “chase after them.” Davis fled to a
¶49nearby restaurant, where he called 911.
¶50 Travis recounted a similar story. According to Travis,
¶51moments after he dropped off King and Davis, he had “a bad feeling,”
¶52so he drove back toward them. Two men, whom he identified at trial
¶53as Clark and Kelly, were pointing guns at King and Davis. Travis
¶54was not carrying a gun. An Oldsmobile was parked in the middle of
¶55the street, but the men in it did not appear to be involved in the
¶56argument. Travis got out of his SUV and told Clark and Kelly to put
¶57their guns down. Clark then fired his gun, and Kelly started
¶58 4 shooting. Davis ran away, and Kelly told Clark, “we’ve got one
¶59trying to get away, get him.” Clark chased Davis, firing two more
¶60shots, as Kelly walked toward the SUV and said “uh-huh, pow.”
¶61Travis ran, but soon saw King driving the SUV and jumped in the
¶62passenger seat. Travis then saw that King had been shot. The SUV
¶63crashed into a tree, and Travis got out and ran away. 4
¶64 Investigators who responded to the scene found King, who had
¶65been shot once in the chest, in the driver’s seat of the SUV. He was
¶66transported to a hospital, where he later died. A medical examiner
¶67recovered a bullet fragment from King’s chest, and investigators
¶68found three .380 shell casings at the scene. A firearms examiner
¶69later concluded that all of the shell casings had been fired from the
¶70same .380 pistol and that the bullet fragment was fired from a .380
¶71 4 A surveillance video recording from the parking lot where the shooting occurred, the quality of which the prosecutor described as “poor,” was admitted into evidence. Davis and the lead investigator for the case testified that the video showed the following. King and Davis walked through the parking lot around 11:20 p.m.; an Oldsmobile pulled up, followed by an SUV; Davis and Travis ran away as a man, whom Davis identified at trial as Clark, chased them; and Travis got in the passenger side of the SUV, which drove through the parking lot and out of view.
¶72 5 pistol. Investigators did not find any guns at the scene.
¶73 Investigators identified Clark and Kelly as suspects, and Clark
¶74and Kelly turned themselves in the day after the shooting. The lead
¶75investigator interviewed Clark that evening; the interview was
¶76audio-recorded and later played for the jury. Initially, Clark denied
¶77being present during the shooting, but he eventually told the
¶78following story. He and Kelly were outside the convenience store
¶79when two men approached and asked if they had been involved in a
¶80prior shooting. When they denied any involvement, the men left,
¶81but Clark and Kelly soon encountered them again in a nearby
¶82parking lot. The men “kept walking up on them” and again asked if
¶83they had been involved in the shooting. Clark said “no.” Clark’s
¶84friend Washington then pulled up in an Oldsmobile and asked what
¶85was happening. Clark responded that he did not know. An SUV
¶86then drove up, and “a big dude jumped out.” Kelly fired his gun as
¶87Clark fled. 5
¶88 5Washington and Archie did not testify. The lead investigator testified that Washington said during an interview that he did not see Clark with a gun
¶89 6 The lead investigator testified that his investigation indicated
¶90that Kelly fired the shot that killed King, and it appears that the
¶91State’s theory of the case was that Kelly was the shooter and Clark
¶92was a party to the crimes. Clark did not testify, and the trial’s
¶93opening statements and closing arguments were not transcribed.
¶94 2. Clark contends that the evidence presented at his trial was
¶95insufficient as a matter of constitutional due process to support his
¶96convictions for felony murder (based on aggravated assault against
¶97King) and possession of a firearm during the commission of that
¶98crime. 6 Specifically, Clark argues that the State failed to prove that
¶99he participated in killing King because the evidence showed that
¶100that night and that Kelly shot at King, Davis, and Travis. The investigator also testified that Archie said during an interview that both Clark and Kelly had guns that night. Clark did not object to this testimony at trial, and he does not contend in this appeal that the testimony was improperly admitted.
¶101 6 Clark does not challenge the sufficiency of the evidence supporting his convictions for aggravated assault against Davis or possession of a firearm during the commission of that crime, and this Court no longer routinely reviews evidentiary sufficiency sua sponte, except with respect to murder convictions resulting in the death penalty. See Davenport v. State, 309 Ga. 385 398-399 (846 SE2d 83) (2020).
¶102 7 Kelly was the shooter. We reject that argument.7
¶103 In evaluating the sufficiency of the evidence as a matter of
¶104constitutional due process, we view all of the evidence presented at
¶105trial in the light most favorable to the verdicts and consider whether
¶106any rational juror could have found the defendant guilty beyond a
¶107reasonable doubt of the crimes of which he was convicted. See
¶108Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
¶109(1979); Perkins v. State, 313 Ga. 885, 891 (873 SE2d 185) (2022).
¶110“We leave to the jury ‘the resolution of conflicts or inconsistencies in
¶111the evidence, credibility of witnesses, and reasonable inferences to
¶112be derived from the facts.’” Perkins, 313 Ga. at 891 (citation
¶113 7 In arguing about the sufficiency of the evidence, Clark asserts that the State was required to charge him with aggravated assault against King because his felony-murder conviction was based on that crime. That claim, however, relates to the sufficiency of the substance of the indictment—not the sufficiency of the evidence presented at trial. Because Clark did not challenge the substance of the indictment in the trial court, he has forfeited this claim. See Hinkson v. State, 310 Ga. 388, 397 (850 SE2d 41) (2020) (explaining that “‘a general demurrer may be raised after jeopardy has attached and at any time during trial,’ as well as ‘in the form of a motion in arrest of judgment after a verdict in the same term of court’”) (citation omitted). Clark also raises this issue in the context of a claim that his trial counsel provided constitutionally ineffective assistance by failing to file a demurrer to the indictment (an argument he also made in his amended and second amended motion for new trial). We address that claim in Division 5 (b). 8 omitted).
¶114 To support Clark’s conviction for felony murder, the evidence
¶115presented at trial had to show that he proximately caused King’s
¶116death, either directly or as a party to the crime, while in the
¶117commission of an aggravated assault with a deadly weapon. See
¶118OCGA § 16-5-1 (c). See also Mathews v. State, 314 Ga. 360, 365 (877
¶119SE2d 188) (2022) (“‘Felony murder requires only that the defendant
¶120possessed the requisite criminal intent to commit the underlying
¶121felony—in this case, aggravated assault, which also does not require
¶122intent to kill.’”) (citation omitted). The trial court instructed the jury
¶123on aggravated assault, which OCGA § 16-5-21 (a) (2) defines, in
¶124pertinent part, as an “assault[] . . . [w]ith a deadly weapon.” The
¶125court also instructed on parties to a crime under OCGA § 16-2-20.
¶126That statute says, among other things, that “[e]very person
¶127concerned in the commission of a crime[,]” including one who
¶128“[i]ntentionally aids or abets in the commission of the crime” or
¶129“[i]ntentionally advises [or] encourages . . . another to commit the
¶130crime” is “a party thereto and may be charged with and convicted of
¶131 9 commission of the crime.” OCGA § 16-2-20 (a) & (b) (3)-(4).
¶132 It is well established that “‘[a] person who does not directly
¶133commit a crime may be convicted upon proof that the crime was
¶134committed and that person was a party to it.’” Glenn v. State, 306
¶135Ga. 550, 553 (832 SE2d 433) (2019) (citation omitted). See also
¶136Crawford v. State, 312 Ga. 452, 455-456 (863 SE2d 75) (2021) (“‘Even
¶137where it is undisputed that the victim was shot by another person,
¶138every person concerned in the commission of the crime may be
¶139convicted of the crime.’”) (citation omitted). Conviction as a party to
¶140a crime requires proof of a common criminal intent, which the jury
¶141may infer from the defendant’s presence, companionship, and
¶142conduct with another perpetrator before, during, and after the
¶143crimes. See, e.g., Glenn, 306 Ga. at 553. However, mere presence
¶144at the crime scene is insufficient to make someone a party to a crime.
¶145See, e.g., id.
¶146 Although the evidence presented at trial indicated, and the
¶147parties did not dispute, that Clark did not personally fire the shot
¶148that killed King, there was ample evidence from which the jury
¶149 10 reasonably could infer that Clark and Kelly shared a common
¶150criminal intent with respect to the shooting. When properly viewed
¶151in the light most favorable to the verdicts, the evidence showed that
¶152Clark and Kelly encountered King and Davis outside the
¶153convenience store shortly before the shooting—a fact supported by
¶154surveillance video. A few minutes later, when Clark and Kelly saw
¶155King and Davis again, the men argued. Clark and Kelly each pulled
¶156out a gun; Clark fired first; and Kelly then began shooting. Kelly
¶157approached the SUV, and at some point, King was shot and killed.
¶158In addition, Kelly told Clark to chase Davis, and Clark followed that
¶159instruction, firing more shots as he ran after him. Clark then lied
¶160during his interview with the lead investigator, claiming that he had
¶161not been present during the shooting.
¶162 Thus, even if Clark did not himself shoot King, the evidence
¶163presented at trial was still sufficient as a matter of constitutional
¶164due process to authorize a rational jury to find him guilty beyond a
¶165reasonable doubt as a party to the crimes of felony murder based on
¶166aggravated assault and possession of a firearm during that offense.
¶167 11 See, e.g., Mathews, 314 Ga. at 365 (holding that the jury was
¶168authorized to conclude that the appellant was guilty of felony
¶169murder based on aggravated assault, even though the evidence
¶170presented at trial did not establish whether he or his co-defendant
¶171shot the murder victim, because they shared a common criminal
¶172intent); Williams v. State, 307 Ga. 689, 691 (838 SE2d 314) (2020)
¶173(holding that the evidence presented at trial was legally sufficient to
¶174prove that the appellant, who did not shoot the victim, was guilty as
¶175a party to the murder, partly because he and some of the other
¶176assailants were in a car together, argued with the victim, and pulled
¶177out guns just before the shooting). 8
¶178 3. Clark contends that the trial court applied the “wrong
¶179standard” in admitting into evidence the audio recording of his
¶180interview with the lead investigator. He argues that because he was
¶181 8 To the extent Clark also challenges his felony-murder and firearm convictions under OCGA § 24-14-6, even if we assume that the evidence presented at trial was entirely circumstantial, it was nonetheless sufficient to exclude every reasonable hypothesis other than that of his guilt. See id. (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). 12 a juvenile at the time of his interview, see OCGA § 15-11-2 (10) (B)
¶182(defining “[c]hild”), the trial court was required to consider each of
¶183the nine factors set forth in Riley v. State, 237 Ga. 124 (226 SE2d
¶184922) (1976), to determine whether he knowingly and voluntarily
¶185waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (86
¶186SCt 1602, 16 LE2d 694) (1966).
¶187 As we will explain more below, we take this opportunity to
¶188clarify that Riley held that trial courts are to use a totality-of-the-
¶189circumstances test to determine whether a juvenile knowingly and
¶190voluntarily waived his constitutional rights, and we reaffirm that
¶191holding today.9 However, requiring courts to apply the specific nine-
¶192factor framework Riley set forth for assessing the totality of the
¶193circumstances is in tension with the totality-of-the-circumstances
¶194test itself, and we therefore disapprove language in Riley and later
¶195 9 We note that we have also applied Riley’s totality-of-the-circumstances test in evaluating whether a juvenile’s statement to law enforcement officials was voluntarily made as a matter of due process. See, e.g., State v. Powell, 315 Ga. 5, 12 (880 SE2d 189) (2022); Lester v. State, 310 Ga. 81, 85 n.7 (849 SE2d 425) (2020). Clark does not claim a due-process violation here.
¶196 13 cases suggesting that the nine-factor framework is required or
¶197exclusive. 10 Finally, because the record in this case does not indicate
¶198that the trial court failed to apply a totality-of-the-circumstances
¶199test, Clark’s claim fails.
¶200 (a) We begin with a discussion of Riley and other cases from
¶201the United States Supreme Court and this Court that have
¶202established the legal standard that a trial court must apply in
¶203determining whether a juvenile knowingly and voluntarily waived
¶204his rights under Miranda.
¶205 It appears that Riley was one of the earliest cases in which this
¶206 10 Our concern about Riley is not new: several of us recently have expressed concerns about Riley’s nine-factor framework. See State v. Powell, 315 Ga. 5, 12 n.5 (880 SE2d 189) (2022) (noting that “[a] number of us have recently expressed concerns about the prescriptive and restrictive nature of Riley’s nine-factor analysis for juveniles”); State v. Burton, 314 Ga. 637, 650 (878 SE2d 515) (2022) (Pinson, J., concurring, joined by Boggs, C.J., and Warren, Bethel, and McMillian, JJ.) (expressing doubts about the “juvenilespecific,” nine-factor analysis in Riley); Daniels v. State, 313 Ga. 400, 418 (870 SE2d 409) (2022) (Nahmias, C.J. concurring specially in part, joined by Boggs, P.J. and Warren, J.) (expressing “doubts about how a trial court is to make, and an appellate court is to review, a ruling based on a nine-factor, totality-of-the-circumstances test”) (emphasis in original).
¶207 14 Court considered a waiver of rights by a juvenile. 11 Riley argued
¶208that he did not knowingly and voluntarily waive his rights under
¶209Miranda because he was a juvenile and his parents were not present
¶210when he was interviewed by the police. See Riley, 237 Ga. at 127.
¶211This Court declined to determine that such a waiver was
¶212involuntary per se, holding instead that “the question of a voluntary
¶213and knowing waiver depends on the totality of the circumstances[,]
¶214and the state has a heavy burden in showing that the juvenile did
¶215understand and waive his rights.” Id. at 128. Relying on a decision
¶216of the United States Court of Appeals for the Fifth Circuit that
¶217similarly declined to apply a per se rule excluding evidence of a
¶218juvenile’s incriminating statements to the police, the Riley Court
¶219went on to say that
¶220 age alone is not determinative of whether a person can
¶221 11 Three years before Riley was decided, this Court summarily held in Williams v. State, 231 Ga. 508 (202 SE2d 433) (1973), that the trial court did not err by admitting into evidence a juvenile’s statement to the police, noting that the statement was made in the presence of his mother and after he was advised of his rights under Miranda. See id. at 509. In addition, a few months before the decision in Riley, we similarly held (with little discussion) in Crawford v. State, 236 Ga. 491 (224 SE2d 365) (1976), that the trial court did not err by admitting evidence of a juvenile’s confession, noting that he had been given Miranda warnings and that his statement was voluntary. See id. at 492. 15 waive his rights. Instead, the question of waiver must be analyzed by a consideration of several factors. These are “(1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge . . . and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogation; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.”
¶222Id. at 128 (quoting West v. United States, 399 F2d 467, 469 (5th Cir.
¶2231968)).12 The Riley Court then disapproved a Georgia Court of
¶224Appeals case, Freeman v. Wilcox, to the extent it could be read as
¶225requiring an automatic exclusion of a juvenile’s statement to the
¶226police, and summarily concluded that Riley knowingly and
¶227voluntarily waived his rights, without expressly applying any of the
¶228nine factors it laid out before reaching its conclusion. See id. at 128
¶229 12 In West, the Fifth Circuit rejected the appellant’s contention that because he was a juvenile when he was interviewed by an investigator, he was “per se incapable of waiving” his rights under Miranda. 399 F2d at 468. Noting that “[f]actors considered by the courts in resolving this question include” the nine factors later listed in Riley, the court held that whether a juvenile knowingly and voluntarily waived his rights did not depend on “age alone,” but rather on “the totality of circumstances.” Id. at 469. 16 (disapproving Freeman v. Wilcox, 119 Ga. App. 325 (167 SE2d 163)
¶230(1969)).
¶231 Three years later, the United States Supreme Court in Fare v.
¶232Michael C., 442 U.S. 707 (99 SCt 2560, 61 LE2d 197) (1979),
¶233examined whether a juvenile had invoked his rights pursuant to
¶234Miranda by requesting to speak with his probation officer. See id.
¶235at 710-716. Concluding that the juvenile’s request was not a per se
¶236invocation of his rights, the Court explained that “the determination
¶237whether statements obtained during custodial interrogation are
¶238admissible against the accused is to be made upon an inquiry into
¶239the totality of the circumstances surrounding the interrogation, to
¶240ascertain whether the accused in fact knowingly and voluntarily
¶241decided to forgo his rights to remain silent and to have the
¶242assistance of counsel.” Id. at 724-725. “This totality-of-the-
¶243circumstances approach is adequate to determine whether there has
¶244been a waiver even where interrogation of juveniles is involved.” Id.
¶245at 725. The Court further explained,
¶246 [w]e discern no persuasive reasons why any other
¶247 17 approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits— indeed, it mandates—inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.
¶249 Thus, our holding in Riley—that a totality-of-the-
¶250circumstances test is used to determine whether a juvenile
¶251knowingly and voluntarily waived his constitutional rights—is
¶252consistent with the totality-of-the-circumstances approach for
¶253juvenile waiver that was later established in Fare. And in the
¶254decades following Riley and Fare, this Court has repeatedly held
¶255that trial courts are to apply a totality-of-the-circumstances test in
¶256evaluating the admissibility of a juvenile’s statement. See, e.g.,
¶257Williams v. State, 238 Ga. 298, 302-303 (232 SE2d 535) (1977)
¶258(explaining that in Riley, “[w]e found that ‘the question of a
¶259voluntary and knowing waiver depends on the totality of the
¶260circumstances” and holding that “under the totality of the 18 circumstances[,] . . . the trial court did not err in admitting [the
¶261juvenile defendant’s] confession”); Crawford v. State, 240 Ga. 321,
¶262323-324 (240 SE2d 824) (1977) (explaining that Riley “adopted a
¶263totality of the circumstances test” and holding that “[c]onsidering all
¶264the circumstances,” the State failed to prove “from the totality of the
¶265circumstances that the juvenile made a voluntary and knowing
¶266waiver” of her constitutional rights); Massey v. State, 243 Ga. 228,
¶267228-229 (253 SE2d 196) (1979) (“In Riley, this court adopted a
¶268totality of the circumstance test to be used in considering whether a
¶269juvenile waived his right to remain silent.”); Smith v. State, 263 Ga.
¶270363, 364 (434 SE2d 465) (1993) (noting that Riley established a
¶271“totality of the circumstances test” and holding that the juvenile
¶272knowingly and voluntarily waived his rights under Miranda,
¶273“considering the totality of the circumstances”); McKoon v. State,
¶274266 Ga. 149, 150 (465 SE2d 272) (1996) (citing Riley for the
¶275proposition that “[t]he admissibility of statements by juveniles
¶276depends upon whether, under the totality of the circumstances,
¶277there was a knowing and intelligent waiver of constitutional rights”
¶278 19 and holding that the trial court “properly determined that under the
¶279totality of the circumstances, McKoon freely, knowingly, and
¶280voluntarily waived his Miranda rights”); Berry v. State, 267 Ga. 605,
¶281610-611 (481 SE2d 203) (1997) (explaining that a juvenile’s waiver
¶282of rights is “considered under the totality of the circumstances” and
¶283holding that the “evidence in its entirety” and “in the context of the
¶284whole” supported the trial court’s determination that the juvenile
¶285knowingly and intelligently waived his constitutional rights); Nhek
¶286v. State, 271 Ga. 245, 246 (517 SE2d 521) (1999) (citing Riley for the
¶287proposition that juvenile “waiver is assessed under the totality of
¶288the circumstances” and holding that “the [trial] court did not err in
¶289finding that, considering the totality of the circumstances, Nhek
¶290knowingly and voluntarily waived his rights”); Brooks v. State, 271
¶291Ga. 875, 876 (525 SE2d 696) (2000) (explaining that Riley stood for
¶292the proposition that the “question of knowing and intelligent waiver
¶293by [a] juvenile depends on [the] totality of the circumstances” and
¶294upholding the trial court’s determination that under the “totality of
¶295the circumstances,” the juvenile defendant knowingly waived his
¶296 20 rights under Miranda); State v. Rodriguez, 274 Ga. 728, 728-729
¶297(559 SE2d 435) (2002) (explaining that whether a juvenile has made
¶298a knowing and intelligent waiver of his constitutional rights
¶299“depends on the totality of the circumstances,” and concluding that
¶300under the totality of the circumstances particular to that case, the
¶301State had not met its burden of demonstrating that the juvenile
¶302knowingly, intelligently, and voluntarily waived his constitutional
¶303rights); Norris v. State, 282 Ga. 430, 431 (651 SE2d 40) (2007) (citing
¶304Riley and Fare for the proposition that “[e]ven where, as here, a
¶305juvenile is involved, the question of whether there was a knowing
¶306and intelligent waiver of constitutional rights depends on the
¶307totality of the circumstances surrounding a police interrogation” and
¶308holding that “[c]onsidering the totality of the circumstances,” the
¶309trial court did not err in concluding that the juvenile knowingly and
¶310voluntarily waived her rights); Green v. State, 282 Ga. 672, 673 (653
¶311SE2d 23) (2007) (explaining that “[t]his court, in Riley, held that ‘the
¶312question of a voluntary and knowing waiver [by a juvenile] depends
¶313on the totality of the circumstances’” and concluding that “[u]nder
¶314 21 the totality of the circumstances, we agree with the trial court that
¶315there was a knowing and voluntary waiver of the right to remain
¶316silent”); Allen v. State, 283 Ga. 304, 305-306 (658 SE2d 580) (2008)
¶317(recognizing that Riley held that “[t]he admissibility of statements
¶318by juveniles depends upon whether, under the totality of the
¶319circumstances, there was a knowing and intelligent waiver of
¶320constitutional rights” and holding that under all of the
¶321circumstances, the two juvenile defendants knowingly and
¶322voluntarily waived their constitutional rights); State v. Lee, 298 Ga.
¶323388, 389 (782 SE2d 249) (2016) (citing Fare in explaining that a
¶324juvenile’s waiver of his rights under Miranda depends on the totality
¶325of the circumstances and holding that “the trial court properly
¶326concluded based on the totality of the circumstances that Lee did not
¶327knowingly and intelligently waive his rights before giving his
¶328custodial statement”); Love v. State, 309 Ga. 833, 836 (848 SE2d 882)
¶329(2020) (explaining that a juvenile’s waiver of rights depends on the
¶330totality of the circumstances and holding that “under the totality of
¶331the circumstances” the trial court did not err in determining that
¶332 22 the juvenile knowingly and voluntarily waived his rights).
¶333 Because the totality-of-the-circumstances test set forth in Riley
¶334and its progeny is consistent with United States Supreme Court
¶335precedent, we reaffirm that test today. 13 But, as discussed more
¶336below, language in Riley and many of the cases that followed it also
¶337suggested that assessing the totality of the circumstances required
¶338applying a specific nine-factor framework. Because requiring
¶339application of a fixed set of factors is inherently in tension with a
¶340totality-of-the-circumstances test, we disapprove any such
¶341language.
¶342 (b) As we mentioned above, after we correctly held in Riley that
¶343whether a juvenile knowingly and voluntarily waives his
¶344 13 Indeed, if Riley’s holding were inconsistent with the totality-of-the-circumstances test that Fare later established, we would be obligated to overrule Riley, because we must follow the United States Supreme Court’s instructions on how to determine, as a matter of federal constitutional law, whether a juvenile has knowingly and voluntarily waived the rights protected by Miranda. See, e.g., Ringold v. State, 304 Ga. 875, 878 (823 SE2d 342) (2019) (explaining that “it is a fundamental principle that this Court is ‘bound by the Constitution of the United States as its provisions are construed and applied by the Supreme Court of the United States’” and that “‘[e]ven the venerable doctrine of stare decisis does not permit us to persist in an error of federal constitutional law’”) (emphasis in original; citations omitted).
¶345 23 constitutional rights “depends on the totality of the
¶346circumstances[,]” the Court continued on by saying that “the
¶347question of waiver must be analyzed by a consideration of several
¶348factors. These are . . .” and listed nine specific factors.14 That
¶349language improperly suggested that in determining whether a
¶350juvenile knowingly and voluntarily waived his rights under
¶351Miranda, trial courts should examine the totality of the
¶352circumstances by mechanically applying those nine enumerated
¶353factors. But proper application of a totality-of-the-circumstances
¶354test “mandates . . . inquiry into all the circumstances surrounding
¶355the interrogation.” Fare, 442 U.S. at 725 (emphasis supplied). See
¶356also, e.g., United States v. Rivera, 825 F3d 59, 63-64 (1st Cir. 2016)
¶357(explaining, in the context of determining whether there was
¶358sufficient probable cause to issue a search warrant under the Fourth
¶359Amendment, that “totality of the circumstances” “means that all
¶360 14 We note that although Riley’s factors were derived from West, that case said that “[f]actors considered by the courts in resolving [the] question [of juvenile waiver] include” before listing the nine factors later enumerated in Riley. See West, 399 F2d at 469 (emphasis supplied). In other words, the nine factors listed in West were not exclusive. 24 material ‘circumstances should be considered’”) (citation omitted);
¶361United States v. Melton, 782 F3d 306, 311 (6th Cir. 2015) (noting, in
¶362the context of determining whether a criminal defendant’s
¶363admission during a revocation proceeding that he violated the
¶364conditions of his supervised release was knowing and voluntary,
¶365that “‘the totality of the circumstances means exactly that—all the
¶366circumstances should be considered,’” and “‘courts should beware of
¶367assigning talismanic significance to any single fact or circumstance’”
¶368as “‘each case is quite likely to be sui generis’”) (citation omitted).
¶369Indeed, any prescriptive or fixed list of factors by its very nature
¶370risks undermining a totality-of-the-circumstances test by suggesting
¶371that certain potentially relevant factors are not worthy of
¶372consideration, on one hand, and appearing to mandate consideration
¶373of other factors that may not be relevant in a particular case, on the
¶374other.
¶375 Thus, Riley’s list of nine specific factors, which this Court said
¶376 25 “must be analyzed” 15 in applying a totality-of-the-circumstances test
¶377to determine whether a juvenile knowingly and voluntarily waived
¶378his rights, is in tension with the totality-of-the-circumstances test
¶379itself—and thus with this Court’s holding in Riley—because such a
¶380test requires that trial courts consider all of the relevant
¶381circumstances surrounding the juvenile’s interview with law
¶382enforcement officials. See Fare, 442 U.S. at 725. And given that in
¶383a number of cases decided after Riley, this Court perpetuated the
¶384dicta in Riley that set forth the nine-factor framework of analysis as
¶385part of a totality-of-the-circumstances inquiry and used language
¶386incorrectly suggesting that trial courts are required to analyze each
¶387of those factors or are required to analyze those factors exclusively,
¶388we disapprove any language in those cases indicating that the nine-
¶389 15 As we mentioned above, the Riley Court announced in dicta its list of nine factors after holding that “the question of a voluntary and knowing waiver depends on the totality of the circumstances,” and the factors were not dispositive of the Court’s conclusion that the trial court correctly determined that Riley knowingly and voluntarily waived his rights under Miranda. See Riley, 237 Ga. at 128.
¶390 26 factor framework is required or exclusive. 16 Moreover, we make
¶391 16 See, e.g., Williams, 238 Ga. at 302-303 (explaining that Riley held that whether a juvenile knowing and voluntarily waived his constitutional rights depends on the totality of the circumstances (as noted above), but saying that “the totality of the circumstances is to be determined by consideration of the nine factors set out in West” and listing those factors); Crawford, 240 Ga. at 323-325 (explaining and applying a totality-of-the-circumstances test (as noted above), and stating that “[t]he court in Riley . . . set forth several of the factors to be considered among the totality of the circumstances” before listing the Riley factors); Massey, 243 Ga. at 228-229 (applying a totality-of-the-circumstances test (as noted above), but briefly analyzing each of the Riley factors); Lane v. State, 247 Ga. 19, 20-21 (273 SE2d 397) (1981) (saying that a totality-of-the-circumstances test is used to determine juvenile waiver, but then stating that “[s]everal factors are considered by this court in applying the ‘totality of the circumstances’ test to the statement of a minor. They are . . .” and listing the Riley factors); Marshall v. State, 248 Ga. 227, 228-230 (282 SE2d 301) (1981) (noting that Riley held that “‘the question of a voluntary and knowing waiver depends on the totality of the circumstances,’ to be analyzed by a consideration of nine factors” and then listing and applying the Riley factors); Howe v. State, 250 Ga. 811, 812-813 (301 SE2d 280) (1983) (noting that “Riley . . . adopted a totality of the circumstances test,” but listing and applying the nine Riley factors and concluding that “[b]ased upon the totality of the circumstances, as reflected in the nine-factor analysis,” the trial court properly admitted the juvenile defendant’s statement); Couch v. State, 253 Ga. 764, 765 (325 SE2d 366) (1985) (saying that “[t]he question of voluntary and knowing waiver of rights by a juvenile depends upon an analysis of nine factors,” but then concluding that the trial court properly admitted the juvenile’s statement “[c]onsidering all the circumstances”); J.E.W. v. State, 256 Ga. 464, 467 (349 SE2d 713) (1986) (saying that in Riley, we held that the question of waiver “depends on the totality of the circumstances to be analyzed by a consideration of nine factors” and then listing the Riley factors) (citation and punctuation omitted); State v. McBride, 261 Ga. 60, 63 (401 SE2d 484) (1991) (mentioning that the trial court applied a totality-of-the-circumstances test to determine whether the juvenile defendants waived their rights under Miranda, but saying that “[i]n determining this issue nine factors are to be considered” and listing the Riley factors); Smith, 263 Ga. at 364 (citing Riley for the proposition that “[w]hether a juvenile has made a knowing and
¶392 27 voluntary waiver of his rights depends on the totality of the circumstances” (as noted above), but then saying “with consideration given to nine specific factors” and listing the Riley factors in a footnote); Henry v. State, 264 Ga. 861, 862 (452 SE2d 505) (1995) (holding that whether a juvenile defendant knowingly and voluntarily waived his rights depends on the “totality of the circumstances,” but saying that a trial court “must consider” the nine Riley factors); McKoon, 266 Ga. at 150 (explaining and applying a totality-of-the-circumstances test (as noted above), but saying that the “analysis involves the application of a nine part test” and listing the Riley factors); Berry, 267 Ga. at 610-611 (applying a totality-of-the-circumstances test (as noted above), but saying that “[t]he analysis involves the application of the nine-part test outlined in Riley”); Gilliam v. State, 268 Ga. 690, 692 (492 SE2d 185) (1997) (explaining that whether a juvenile knowingly and intelligently waived his constitutional rights is “assessed under the totality of the circumstances,” but then “[a]pplying the nine-factor test” in Riley); Hanifa v. State, 269 Ga. 797, 804-805 (505 SE2d 731) (1998) (saying that “[s]ince Hanifa was a juvenile when she made the incriminating statement to police, the trial court correctly considered the nine factors set forth in Riley . . . in determining whether Hanifa made a knowing and intelligent waiver of constitutional rights,” without mentioning the totality-of-the-circumstances test); Nhek, 271 Ga. at 246 (explaining that juvenile waiver is “assessed under the totality of the circumstances” (as noted above), but saying that the Court was “[a]pplying the nine-factor test of McBride and Riley”); Brooks, 271 Ga. at 876 (explaining and applying a totality-of-the-circumstances test (as noted above), but stating that McBride set “forth nine factors to be considered when a juvenile makes an incriminating statement”); Jackson v. State, 272 Ga. 191, 194 (528 SE2d 232) (2000) (noting that the trial court concluded that the juvenile knowingly and voluntarily waived his rights under the totality of the circumstances, but saying that “[t]he court specifically considered the factors set forth in Riley . . . , the test for considering the voluntariness of a juvenile’s statement”); Chapman v. State, 273 Ga. 865, 869 (548 SE2d 278) (2001) (concluding that the trial court “did not err in finding that, considering the totality of the circumstances, Chapman knowingly and voluntarily waived his rights,” but saying that a “court is to consider” the nine Riley factors and listing the factors); Rodriguez, 274 Ga. at 728-729 (explaining and applying a totality-of-the-circumstances test (as noted above), and listing the Riley factors as those “[a]mong the factors to be considered”); James v. State, 275 Ga. 387, 388 (565 SE2d 802) (2002) (concluding that the juvenile defendant knowingly and intelligently waived her rights “[c]onsidering the totality of the circumstances,” but noting that the trial
¶393 28 court “consider[ed] the nine factors set forth in Riley”); Murray v. State, 276 Ga. 396, 397-398 (578 SE2d 853) (2003) (concluding that the juvenile defendant’s statement was knowingly and voluntarily given “[c]onsidering the totality of the circumstances,” but quoting the Riley factors); Norris, 282 Ga. at 431-432 (citing Fare and applying a totality-of-the-circumstances test (as noted above), but quoting the factors listed in Rodriguez as those “[a]mong the factors to be considered”); Green, 282 Ga. at 673-674 (applying a totality-of-the-circumstances test to conclude that the juvenile knowingly and voluntarily waived his right to remain silent (as noted above), but listing and applying the Riley factors); Allen, 283 Ga. at 305-306 (applying a totality-of-the-circumstances test to determine whether the juvenile defendants knowingly and voluntarily waived their constitutional rights (as noted above), but saying that “[t]he analysis involves the application of a nine part test” and listing the Riley factors); Oubre v. Woldemichael, 301 Ga. 299, 305-307 (800 SE2d 518) (2017) (applying Riley to determine whether a juvenile’s statement was voluntarily made as a matter of due process and explaining that Riley requires an evaluation of the totality of the circumstances, but saying that “[i]n determining whether a juvenile has given a statement voluntarily, a court considers nine factors set forth in Riley”); Lester v. State, 310 Ga. 81, 85-88 & n.7 (849 SE2d 425) (2020) (repeatedly explaining that juvenile waiver depends on the totality of the circumstances, but quoting the factors listed in Riley and noting that waiver under the Riley test differs from “a more general totality-of-the-circumstances due process analysis”); Bedford v. State, 311 Ga. 329, 334 (857 SE2d 708) (2021) (saying that the State bears the burden of showing that a juvenile waived his rights under “‘the totality of the circumstances,” but that “the court must consider nine factors in making that determination” and listing the Riley factors); Daniels v. State, 313 Ga. 400, 406 (870 SE2d 409) (2022) (explaining that whether a juvenile defendant knowingly and voluntarily waived his rights depends on “the totality of the circumstances,” but that “courts are to consider nine factors in making that determination” and then listing and analyzing the factors set forth in Riley); State v. Burton, 314 Ga. 637, 641-649 (878 SE2d 515) (2022) (explaining that whether a juvenile waived his rights under Miranda depends on “the totality of the circumstances,” but listing the Riley factors and reviewing the trial court’s findings as to each factor); State v. Powell, 315 Ga. 5, 12-14 (880 SE2d 189) (2022) (applying Riley to determine whether a juvenile’s statement was voluntarily made as a matter of due process, noting that “in analyzing the totality of the circumstances, the trial court considered the many factors set forth in Riley,” listing the nine factors, and then reviewing each of them).
¶394 29 clear that Georgia trial courts should no longer look to that
¶395framework for determining, under the totality of the circumstances,
¶396whether a juvenile knowingly and voluntarily waived his rights
¶397under Miranda. Rather, as we have explained above, the totality-
¶398of-the-circumstances test requires trial courts to consider all of the
¶399relevant circumstances surrounding a juvenile’s interview with law
¶400enforcement officials to determine whether the State has met its
¶401burden of showing that the juvenile knowingly and voluntarily
¶402waived his rights. See Fare, 442 U.S. at 725.
¶403 In addition, we have said that the factors listed in Riley are inapplicable in cases involving whether an adult knowingly and voluntarily waived his constitutional rights. See Andrews v. State, 302 Ga. 809, 811 n.5 (809 SE2d 746) (2018), overruled on other grounds by State v. Abbott, 303 Ga. 297 (812 SE2d 225) (2018); Sewell v. State, 283 Ga. 558, 562 (662 SE2d 537) (2008); Vergara v. State, 283 Ga. 175, 177-178 (657 SE2d 863) (2008); Woodard v. State, 277 Ga. 49, 50 (586 SE2d 330) (2003); Reynolds v. State, 275 Ga. 548, 549 (569 SE2d 847) (2002); King v. State, 273 Ga. 258, 260 (539 SE2d 783) (2000); Esposito v. State, 273 Ga. 183, 185 (538 SE2d 55) (2000); McDade v. State, 270 Ga. 654, 656 (513 SE2d 733) (1999); Hance v. State, 245 Ga. 856, 858 (268 SE2d 339) (1980). To the extent that language in these or other Georgia appellate cases indicates that the test for whether a defendant has knowingly and voluntarily waived his rights under Miranda is not the same for juveniles as it is for adults, that language is disapproved. See Fare, 442 U.S. at 725 (explaining that the totality-of-the-circumstances test is used for determining whether a juvenile has knowingly and voluntarily waived his constitutional rights, and that this same test is used for determining whether an adult has waived his rights). 30 (c) We turn now to whether the trial court in this case applied
¶404the proper standard—the totality-of-the-circumstances test—to
¶405determine whether Clark knowingly and voluntarily waived his
¶406rights under Miranda. As explained below, nothing in the record
¶407indicates that the court failed to apply the test, so Clark does not
¶408prevail on this claim.
¶409 (i) Near the beginning of the trial, the trial court held a
¶410hearing pursuant to Jackson v. Denno, 378 U.S. 368 (84 SCt 1774,
¶41112 LE2d 908) (1964), to determine the admissibility of the audio-
¶412recording of Clark’s interview with the lead investigator. The
¶413evidence presented at the hearing, which included testimony from
¶414the investigator and the recording of the interview, showed the
¶415following. On the day after the shooting, the investigator spoke with
¶416Clark’s mother, who said that she did not know where Clark was;
¶417around 6:45 p.m., Clark and Kelly turned themselves in at the
¶418Richmond County Sheriff’s Office; and at 8:15 p.m., the investigator
¶419interviewed Clark for about an hour and 10 minutes. Clark, who
¶420was then 16 years old, attended high school and was in the tenth
¶421 31 grade. He confirmed during the interview that he understood right
¶422from wrong; he understood English; and he did not have any “mental
¶423disorder” or take any drugs that would prevent him from
¶424understanding the investigator’s questions. The investigator
¶425informed Clark that he and Kelly were being charged with murder.
¶426He then read to Clark the language that was contained on a “Waiver
¶427of Counsel” form; Clark wrote his initials next to each of the six
¶428rights listed on the form and signed it.17
¶429 Clark initially denied any knowledge of the shooting, saying
¶430that he had not seen Kelly that night. During the course of the
¶431interview, Clark said that he had “been in trouble with the police”
¶432before, and he understood that giving a false statement to a police
¶433 17 The form advised Clark that he could “remain silent and [did] not have to make any statement at all”; “any statement which [he] might make” could “be used against [him] in court”; he had a “right to consult with an attorney before making any statements and to have such attorney present with [him] while [he was] making a statement”; if he did not have enough money to employ an attorney, he had “the right to have one appointed by the [c]ourt”; if he requested an attorney, “no questions [would] be asked until an attorney [was] present”; and he could decide “at any time to exercise these rights and not answer any questions or make any statements.” Just above the date and signature lines, the form said, “I have read this Waiver of Counsel and fully understand it. No threats or promises have been made to induce me to sign this Waiver of Counsel.” 32 officer was against the law. At one point, Clark asked the
¶434investigator if he was going to be “locked up,” and the investigator
¶435replied, “You have to be locked up for what happened. I have
¶436warrants on you.” When the investigator said that telling the truth
¶437might “look[] good” if Clark “went to court,” Clark mumbled
¶438something about “30 years,” and the investigator said, “You don’t
¶439know that.” The investigator later asked if Clark knew the sentence
¶440for murder, and Clark replied, “Life.”
¶441 About 35 minutes after the interview began, Clark said
¶442something like, “I [inaudible] talk to a lawyer.”18 The investigator
¶443asked, “Do what?” Clark again said something like, “I [inaudible]
¶444talk to a lawyer.” The investigator said, “Are you saying you don’t
¶445want to talk no more and you want to talk to a lawyer? Is that what
¶446you’re saying?” Clark responded, “I’m saying I don’t understand
¶447why you all got me for something I didn’t do.” The investigator then
¶448said that he had surveillance recordings showing Clark and Kelly
¶449 18Clark’s trial counsel argued at the hearing that Clark said, “I’ll talk to a lawyer.” 33 together on the night of the murder. Clark again denied any
¶450involvement, and asked about the evidence the investigator had.
¶451When the investigator asked Clark to “tell the truth,” he eventually
¶452admitted that he was present when Kelly fired at King and his
¶453companions, although he claimed that he fled when the shooting
¶454began.
¶455 The investigator testified at the hearing that during the
¶456interview, Clark did not appear to be intoxicated or suffering from
¶457any mental defects; he seemed to understand and coherently answer
¶458questions; no one had threatened him or promised him anything;
¶459and he did not ask to speak with his mother or any other family
¶460member. He also testified that the Richmond County Sheriff’s Office
¶461had a special form used to advise juveniles of their rights under
¶462Miranda, but he did not use that form for Clark. In addition, he
¶463testified that about an hour and a half after the interview ended,
¶464Clark said that he wanted to change his statement, saying that
¶465Archie was the shooter. About five minutes later, Clark repeated
¶466that Kelly was actually the shooter and that he had tried to change
¶467 34 his statement because he was “scared” of Kelly.
¶468 At the hearing, the parties argued about whether the
¶469investigator should have used the juvenile waiver-of-rights form and
¶470should have advised Clark that a parent could be present during the
¶471interview. They also argued about whether Clark unequivocally
¶472invoked his right to counsel. In addition, the prosecutor asserted
¶473that Clark’s comments during the interview showed that he was
¶474“well versed in the criminal justice system.”
¶475 The trial court ruled that the recording of the interview was
¶476admissible. It concluded that Clark had not clearly invoked his right
¶477to counsel, pointing out that when the investigator tried to clarify
¶478whether Clark wanted to talk to a lawyer, Clark replied, “I’m saying
¶479I don’t understand why you got me for something I didn’t do.” 19 The
¶480court then stated that the investigator was not required to use a
¶481juvenile waiver-of-rights form and that Clark clearly “understood
¶482what was going on” and “understood the system.” The trial court
¶483ruled that the State had shown by a preponderance of the evidence
¶484 19 Clark does not raise this issue on appeal. 35 that Clark was advised of his rights under Miranda, understood
¶485them, and voluntarily waived them.
¶486 (ii) Nothing in the record suggests that the trial court failed
¶487to apply a totality-of-the-circumstances test. To the contrary, the
¶488record shows that the court reviewed the entire audio recording of
¶489the interview, which contained pertinent information regarding
¶490Clark’s age, intelligence, education, previous experience with the
¶491criminal justice system, and understanding of his rights under
¶492Miranda. Moreover, during the hearing, the parties argued at
¶493length about whether a juvenile waiver-of-rights form should have
¶494been used, whether Clark should have been advised that a parent
¶495could be present during his interview, and whether Clark had
¶496clearly invoked his right to counsel when he mentioned “talk[ing] to
¶497a lawyer.” The prosecutor also asserted that the recording of the
¶498interview, including Clark’s comments about being “locked up” and
¶499potentially serving a sentence of “30 years” or “life” in prison for
¶500murder, showed that he was familiar with the criminal justice
¶501system.
¶502 36 In ruling that the recording of the interview was admissible,
¶503the trial court expressly concluded that a juvenile waiver-of-rights
¶504form was not required, that Clark had not invoked his right to
¶505counsel, and that he understood “what was going on” and understood
¶506the criminal justice “system.” Although the court did not expressly
¶507acknowledge other factors that may have been pertinent in
¶508analyzing the totality of the circumstances, “we generally do not
¶509require trial courts to make specific, on-the-record findings about
¶510each aspect of the totality of the circumstances they evaluate or to
¶511make ‘explicit factual findings or credibility determinations on the
¶512record.’” Lester v. State, 310 Ga. 81, 86 (849 SE2d 425) (2020)
¶513(citation omitted).
¶514 In sum, we see no indication that the trial court failed to apply
¶515a totality-of-the-circumstances test in determining whether Clark
¶516knowingly and voluntarily waived his rights under Miranda.
¶517Clark’s claim therefore fails.20 See Holmes v. State, 311 Ga. 698, 706
¶518 20 Because Clark contends only that the trial court applied the wrong legal test and does not contend that the court erred in concluding that he
¶519 37 (859 SE2d 475) (2021) (“‘Trial judges . . . are presumed to know the
¶520law and apply it in making their decisions, absent some indication
¶521in the record suggesting otherwise.’”) (citation omitted). See also
¶522Drennon v. State, 314 Ga. 854, 860 (880 SE2d 139) (2022)
¶523(explaining that when a trial court evaluates the general grounds as
¶524the “thirteenth juror,” we presume that the court understood the
¶525nature of its discretion and exercised it, unless the record shows
¶526otherwise, even if the court did not explicitly speak of its discretion
¶527with respect to the general grounds).
¶528 4. Clark also asserts that the trial court committed plain error
¶529by failing to instruct the jury on knowledge, grave suspicion, mere
¶530presence, and mere association. These instructions were necessary,
¶531Clark says, to inform the jurors that in order to find him guilty as a
¶532party to the crimes against King, the jury would be required to
¶533determine that he shared a common criminal intent with Kelly. As
¶534Clark acknowledges, his trial counsel did not object to the omission
¶535knowingly and voluntarily waived his constitutional rights under the proper test, we do not address that issue. 38 of these instructions, so we review this claim for plain error only. To
¶536establish plain error, Clark must show that the alleged instructional
¶537error “‘was not affirmatively waived; was clear and obvious, rather
¶538than subject to reasonable dispute; likely affected the outcome of the
¶539trial; and seriously affected the fairness, integrity, or public
¶540reputation of judicial proceedings.’” Collins v. State, 312 Ga. 727,
¶541738 (864 SE2d 85) (2021) (citation omitted). “‘An appellant must
¶542establish all four elements of the test in order to demonstrate plain
¶543error, so satisfying this test is difficult, as it should be.’” Id. (citation
¶544omitted). Because Clark has not met his burden of proving that the
¶545trial court clearly and obviously erred, or that any such error likely
¶546affected the outcome of his trial, he has failed to establish plain
¶547error.
¶548 In evaluating a claim that the trial court was required to give
¶549certain jury instructions, “‘we view the charge as a whole to
¶550determine whether the jury was fully and fairly instructed.’” Lopez
¶551v. State, 310 Ga. 529, 537 (852 SE2d 547) (2020) (citation omitted).
¶552During the final charge, the trial court read the indictment to the
¶553 39 jury and provided instructions on the presumption of innocence and
¶554the State’s burden to prove beyond a reasonable doubt each essential
¶555element of the charged crimes. The court also instructed on felony
¶556murder and aggravated assault, saying, among other things, that
¶557felony murder “require[s] that the defendant possess the requisite
¶558criminal intent to commit the underlying felony” and that
¶559aggravated assault requires “that the defendant intentionally
¶560committed an act which placed the alleged victim in reasonable fear
¶561of immediately receiving a violent injury.” The court told the jury
¶562that “[i]ntent is an essential element of any crime and must be
¶563proved by the State beyond a reasonable doubt” and that “[Clark]
¶564will not be presumed to have acted with criminal intent.” In
¶565addition, the trial court thoroughly and accurately instructed on
¶566parties to a crime, specifically telling the jury that a person may be
¶567convicted as a party to a crime if he intentionally aided or abetted in
¶568the commission of the crime or intentionally advised or encouraged
¶569another to commit the crime. Thus, the jury was fully informed that
¶570it was not authorized to find Clark guilty as a party to the crimes
¶571 40 unless he shared Kelly’s criminal intent to shoot King.
¶572 When evaluated in the context of the jury instructions as a
¶573whole, the trial court’s failure to expressly instruct on knowledge,
¶574grave suspicion, mere presence, and mere association did not create
¶575a clear and obvious error beyond reasonable dispute with respect to
¶576the jury’s understanding of criminal intent. See, e.g., Adkins v.
¶577State, 314 Ga. 477, 483 (877 SE2d 582) (2022) (holding that the trial
¶578court did not err by failing to instruct the jury on grave suspicion,
¶579“because the concept was covered in other jury instructions”);
¶580Downey v. State, 298 Ga. 568, 574 (783 SE2d 622) (2016) (explaining
¶581that trial counsel was not ineffective for failing to object to the
¶582omission of a jury instruction on knowledge, because the charge as
¶583a whole sufficiently informed the jury of the knowledge required for
¶584a defendant to be convicted as a party to the crimes); Simmons v.
¶585State, 282 Ga. 183, 188 (646 SE2d 55) (2007) (holding that the trial
¶586court did not err by failing to instruct the jury on mere presence and
¶587guilt by association, because “mere presence is only a corollary to
¶588the requirement that the State prove each element of the crime
¶589 41 charged, and . . . the trial court’s instructions clearly informed the
¶590jury of this requirement”).
¶591 For the same reason, Clark has not established that there is a
¶592reasonable probability that the outcome of the trial would have been
¶593more favorable to him had the trial court given these instructions.
¶594See Downey, 298 Ga. at 574-575. See also, e.g., Walker v. State, 311
¶595Ga. 719, 724-725 (859 SE2d 25) (2021) (holding that an allegedly
¶596improper jury instruction did not likely affect the outcome of the
¶597appellant’s trial under the third part of the plain-error test, because
¶598the charge as a whole adequately instructed the jury as to how to
¶599determine his guilt); Cochran v. State, 305 Ga. 827, 832 (828 SE2d
¶600338) (2019) (holding that trial counsel’s withdrawal of a requested
¶601jury instruction on mere presence did not prejudice the appellant,
¶602because other instructions sufficiently covered that point).
¶603Accordingly, Clark has not met his high burden of proving plain
¶604error.
¶605 5. Finally, Clark argues that his trial counsel provided
¶606constitutionally ineffective assistance by failing to request the jury
¶607 42 instructions discussed above and by failing to file a demurrer to the
¶608indictment. To prevail on these claims, Clark must show that his
¶609lawyer’s performance was constitutionally deficient and that he
¶610suffered prejudice as a result. See Strickland v. Washington, 466
¶611U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To prove deficient
¶612performance, Clark must demonstrate that his counsel “‘performed
¶613at trial in an objectively unreasonable way considering all the
¶614circumstances and in the light of prevailing professional norms.’”
¶615Lewis v. State, 314 Ga. 654, 668 (878 SE2d 467) (2022) (citation
¶616omitted). See also Strickland, 466 U.S. at 688-689. To establish
¶617prejudice, Clark must show a reasonable probability that, but for
¶618counsel’s deficient performance, the result of the trial would have
¶619been different. See Strickland, 466 U.S. at 694; Lewis, 878 SE2d at
¶620479. We need not address both components of the Strickland test if
¶621Clark makes an insufficient showing on one. See Strickland, 466
¶622U.S. at 697; Lewis, 878 SE2d at 479.
¶623 (a) Clark first claims that his trial counsel provided
¶624constitutionally ineffective assistance by failing to request jury
¶625 43 instructions on knowledge, grave suspicion, mere presence, and
¶626mere association. As we explained in Division 4 above, the trial
¶627court’s omission of the instructions Clark now says should have been
¶628given was not an obvious or harmful error under plain-error review.
¶629Even if we assume that trial counsel performed deficiently by failing
¶630to request the instructions, Clark has not established that any such
¶631deficiency resulted in prejudice, given that “‘[t]he test for prejudice
¶632in the ineffective assistance analysis is equivalent to the test for
¶633harm in plain error review.’” Harris v. State, 310 Ga. 372, 385 (850
¶634SE2d 77) (2020) (citation omitted). This claim of ineffective
¶635assistance therefore fails.
¶636 (b) Clark also asserts that his trial counsel was
¶637constitutionally ineffective for failing to file a general demurrer to
¶638the felony-murder count in the indictment. Because counsel did not
¶639perform deficiently in this regard, Clark cannot succeed on this
¶640claim.
¶641 “‘A general demurrer challenges the sufficiency of the
¶642substance of the indictment,’ and asks whether it is capable of
¶643 44 ‘supporting a conviction.’” Budhani v. State, 306 Ga. 315, 319 (830
¶644SE2d 195) (2019) (citation omitted). An indictment is void to the
¶645extent it fails to allege all of the essential elements of the charged
¶646crime. See id. To that end, an indictment is subject to a general
¶647demurrer “‘if the accused could admit each and every fact alleged in
¶648the indictment and still be innocent of any crime.’” Id. (citation
¶649omitted). If, on the other hand, the admission of the facts alleged in
¶650the indictment leads to the conclusion that the defendant is guilty
¶651of the charged crime, the indictment is sufficient. See id.
¶652 The indictment charged Clark with felony murder “while in the
¶653commission of the felony of [a]ggravated [a]ssault” by “caus[ing] the
¶654death of . . . King . . . by shooting him with an unknown type
¶655handgun, a deadly weapon[.]” This language substantially tracked
¶656OCGA § 16-5-1 (c), which defines felony murder as “caus[ing] the
¶657death of another human being irrespective of malice” while “in the
¶658commission of a felony.” And OCGA § 16-5-21 (b) provides that the
¶659crime of aggravated assault is a felony. Thus, the felony-murder
¶660count in the indictment was sufficient to withstand a general
¶661 45 demurrer, “because [Clark] cannot admit he caused the death of the
¶662victim while in the commission of aggravated assault and not be
¶663guilty of the crime [of felony murder].” Stinson v. State, 279 Ga. 177,
¶664179 & n.2 (611 SE2d 52) (2005) (holding that an indictment charging
¶665the appellant with felony murder by causing the death of the victim
¶666“‘while in the commission of a felony, to wit: aggravated assault’”
¶667was not subject to a general demurrer). See also Smith v. State, 313
¶668Ga. 752, 758-759 (873 SE2d 142) (2022) (determining that an
¶669indictment charging the appellant with felony murder by causing
¶670the victim’s death “‘while in the commission of the offense of
¶671aggravated assault, a felony, and/or aggravated battery, a felony’”
¶672was sufficient to withstand a general demurrer). 21
¶673 Clark nevertheless argues that the indictment was flawed
¶674because it did not charge him with a count of aggravated assault
¶675against King. Such a charge was necessary, he says, because
¶676aggravated assault was the felony that formed the basis of the
¶677 Clark does not argue that the indictment failed to contain the essential 21
¶678elements of the underlying crime of aggravated assault. 46 felony-murder count. But it is well settled that “‘the crime of [felony]
¶679murder is independent of the underlying felony. . . . Therefore, the
¶680underlying felony need not be charged as a separate substantive
¶681offense[.]’” State v. Jones, 274 Ga. 287, 288 (553 SE2d 612) (2001)
¶682(citation omitted). See also Freeman v. State, 297 Ga. 146, 150 (771
¶683SE2d 889) (2015) (noting that OCGA § 16-5-1 (c) does “not require
¶684that the defendant be charged and convicted of the underlying
¶685felony. The jury must simply find that the defendant committed or
¶686attempted to commit it”) (citation and punctuation omitted),
¶687overruled on other grounds by Collier v. State, 307 Ga. 363 (834
¶688SE2d 769) (2019). Cf. Smith, 313 Ga. at 758-759 (determining that
¶689a one-count indictment charging the appellant with felony murder
¶690based on aggravated assault was sufficient to withstand a general
¶691demurrer); Stinson, 279 Ga. at 179 (same). Thus, the indictment
¶692was not defective in this respect.
¶693 Because a general demurrer to the indictment on the ground
¶694that it failed to charge Clark with aggravated assault would have
¶695been meritless, Clark has not shown that his trial counsel performed
¶696 47 deficiently. See Smith, 313 Ga. at 759 (holding that trial counsel
¶697was not deficient for failing to file a general demurrer, because such
¶698a filing would have been meritless). Accordingly, he cannot prevail
¶699on this ineffective-assistance claim.
¶700 Judgment affirmed. All the Justices concur.
¶701 48