¶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: June 21, 2023
¶4 S23A0214. KING v. THE STATE.
¶5 WARREN, Justice.
¶6 After a jury trial in January 2020, Rico Jabar King was
¶7convicted of the malice murder of Michael Brooks and possession of
¶8a firearm during the commission of a felony based on shooting
¶9Brooks. 1 King raises four claims of error on appeal: (1) that the trial
¶10court erroneously denied King’s motion for a new trial on the
¶11 1The crimes occurred on March 28, 2018. On May 24, 2018, a DeKalb County grand jury indicted King on four counts: malice murder, felony murder, aggravated assault, and possession of a firearm during commission of a felony. After a jury trial from January 14 to 23, 2020, King was found guilty on all counts. On January 23, 2020, King was sentenced to life in prison without the possibility of parole for malice murder and 5 years to be served consecutively for possession of a firearm during the commission of a felony. The remaining counts either were vacated by operation of law or merged with other counts. King filed a timely motion for new trial on February 18, 2020, which he amended on April 13, 2022. On June 22, 2022, the trial court denied King’s amended motion for new trial. King timely filed a notice of appeal on July 19, 2022, in the Court of Appeals, which was transferred to this Court on October 5, 2022. The case was docketed in this Court to the term beginning in December 2022 and submitted for a decision on the briefs. “general grounds”; (2) that the trial court should not have allowed
¶12witness testimony and closing arguments about voluntary
¶13intoxication; (3) that the trial court plainly erred by admitting
¶14character evidence about King’s alleged past alcohol and illegal drug
¶15use; and (4) that King received constitutionally ineffective
¶16assistance of counsel.
¶17 As explained more below, we conclude that King’s general
¶18grounds claim fails. The trial court did not plainly err by allowing
¶19witness testimony about voluntary intoxication, and King waived
¶20his claim that the trial court should not have allowed closing
¶21arguments about voluntary intoxication. King also affirmatively
¶22waived his claim that the trial court erred by admitting purported
¶23character evidence about King’s past alcohol and illegal drug use.
¶24And King has failed to show that he received constitutionally
¶25ineffective assistance of counsel. We therefore affirm King’s
¶26convictions.
¶27 1. (a) The evidence presented at trial showed the following.
¶28On March 28, 2018, just before noon, Brooks was walking down the
¶29 2 sidewalk on Glenwood Road in DeKalb County. King was in his
¶30black pickup truck driving down Glenwood Road in the same
¶31direction. Shortly after passing Brooks, King pulled into the parking
¶32lot of a restaurant and parked his truck parallel to the road. Once
¶33Brooks walked past King’s passenger-side window, King fired a shot
¶34at Brooks with a .40-caliber pistol.
¶35 A witness who worked at a shopping center on the corner of
¶36Glenwood Road heard the gunshot. He looked out the window and
¶37“saw a guy fall down right beside the pickup truck that was over at”
¶38a restaurant. He then saw Brooks 2 “pushing himself down the
¶39sidewalk” before King stepped out of the pickup truck with a gun.
¶40Brooks stood up.
¶41 That witness and three other witnesses saw Brooks try to make
¶42his way across Glenwood Road before he was shot again, causing
¶43him to fall down in the street. One of the witnesses testified that
¶44the shooter, whom she identified at trial as King, then “stood over
¶45 2 None of the eyewitnesses knew Brooks or King, and only one identified King at trial. 3 [Brooks], and emptied his whole clip.” Two of the witnesses watched
¶46the shooting from inside a shop on Glenwood Road and testified that
¶47they were beating on a window as they watched; once King was done
¶48shooting, he looked at them, nodded his head, and walked away.
¶49 After the shooting, King walked back to his pickup truck
¶50without a sense of urgency and drove off. None of the witnesses had
¶51heard or seen any other interaction between King and Brooks before
¶52the shooting.
¶53 Multiple people called 911 to report the shooting and police
¶54quickly responded. Shortly thereafter, three police officers spotted
¶55King’s pickup truck driving down the road. The officers attempted
¶56to stop the pickup truck, but King continued to drive at around 30
¶57to 40 miles per hour, without obeying traffic lights or stop signs, for
¶58a few miles before pulling into a gated apartment complex. King
¶59attempted to enter the gate code. Although King at first did not
¶60respond to police commands to exit the truck, the officers eventually
¶61were able to remove him from the truck and take him into custody.
¶62 4 Back at the crime scene, Brooks’s body was found in the middle
¶63of the road. He had been shot 13 times and died as the result of the
¶64gunshot wounds. The medical examiner later determined that the
¶65manner of death was homicide, and the parties later stipulated that
¶66the gun used to shoot Brooks was a .40-caliber handgun recovered
¶67from King’s pickup truck.
¶68 (b) Later on the day of the crimes, Detective Keith McQuilkin
¶69interviewed King at DeKalb County police headquarters. Detective
¶70McQuilkin read King his rights under Miranda, 3 which King
¶71waived. A recording of this interview was played for the jury. In
¶72the interview, King stated that the police stopped him because he
¶73“shot someone.” King said that he shot Brooks with his .40-caliber
¶74Smith & Wesson handgun, which he left in his pickup truck. When
¶75Detective McQuilkin asked what happened, King said he “really just
¶76shot him” and that he “murdered him.” Among other things, King,
¶77in explaining why he shot Brooks, said, “I guess I had to kill the
¶78 3 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
¶79 5 baby;”4 that he thought Brooks was the devil; and that he thought
¶80Brooks was going to kill him, but Brooks did not say anything to
¶81make King think that. King also went back and forth between
¶82saying that he did and did not know Brooks. 5
¶83 King was charged with malice murder, felony murder,
¶84aggravated assault, and possession of a firearm during commission
¶85of a felony in connection with Brooks’s killing.
¶86 (c) King asserted insanity as a defense at trial, arguing that he
¶87lacked the ability to distinguish between right and wrong during the
¶88commission of the crimes. King called multiple witnesses at trial to
¶89support that defense.
¶90 Three of those witnesses provided expert testimony. The first
¶91was Dr. Matthew Norman, a licensed psychiatrist, whom the trial
¶92court qualified as an expert in psychiatry, forensic psychiatry, and
¶93 4As explained in Division 1(c), a psychiatrist testified at trial that, in his opinion, King thought that Brooks was a “baby” version of King. King was 42 years old and Brooks was 29 when the crimes occurred.
¶94 5Detective McQuilkin ultimately determined that King and Brooks did not know each other. 6 psychiatric pharmacology. He testified that there was “clear
¶95evidence that [King] was psychotic” on the day of the crimes, and
¶96that someone experiencing King’s symptoms would have had
¶97“difficulty” distinguishing between right and wrong on the day of the
¶98shooting.
¶99 In Dr. Norman’s opinion, King’s “thinking at the time of the
¶100incident” was that King “essentially heard a voice that [Brooks] was
¶101[King’s] baby form” and that King was “command[ed]” to “kill his
¶102baby self” in order to save King. Dr. Norman thought that King’s
¶103psychosis was caused by a weight-loss pill that King had been taking
¶104called phentermine. Dr. Norman noted that King had been
¶105prescribed 30 phentermine pills in March 2017, a year before the
¶106crimes, and then again in March 2018, the same month of the
¶107crimes. He recounted evidence that King was taking the pills daily,
¶108but noted that this information was based only on King’s self-
¶109reports.
¶110 Dr. Norman agreed that there is “not a lot” of research into the
¶111relationship between phentermine and psychosis. He testified that
¶112 7 there had been “a total of nine . . . documented individual cases” of
¶113“phentermine-related psychosis” since the drug hit the market in
¶1141959, making it a “known side effect, but not a common” one. But of
¶115the nine people whose phentermine-related psychosis was reflected
¶116in published reports, five of them were “taking more than the
¶117prescribed dosage,” two had “a history of psychiatric illness or they
¶118had a family history of psychiatric illness,” another was taking the
¶119prescribed dose of phentermine but “he bought it off the street . . . so
¶120there is no guarantee” that it was actually phentermine and he was
¶121also taking methadone at the same time, and another “had a past
¶122history of depression, and she was taking it with marijuana.” Dr.
¶123Norman later testified that psychosis was listed as a side effect of
¶124phentermine on the package insert—a published informational
¶125document reflecting a “combination of what the FDA and the
¶126manufacturer have agreed” needs to be listed—and that the
¶127placement of the psychosis side effect’s listing on the package insert
¶128reflected that it was the least common side effect listed.
¶129 8 King also called Dr. Margaret Flanagan, a licensed
¶130psychologist with the Georgia Department of Behavioral Health and
¶131Developmental Disabilities, and the trial court qualified her as an
¶132expert in psychology and forensic psychology. Among other things,
¶133Dr. Flanagan concluded that someone experiencing “the symptoms
¶134that [King] reported that he experienced” at the time of the crimes
¶135would not know the difference between right and wrong. Although
¶136Dr. Flanagan would not “speak directly” to the cause of King’s
¶137mental state because that is a “medical issue” and Dr. Flanagan is
¶138“not a medical doctor,” she thought that phentermine was the
¶139“likely” cause of King’s mental state.
¶140 Dr. Amy Gambow, a licensed clinical psychologist working at
¶141Georgia Regional Hospital, was qualified as an expert in psychology
¶142and forensic psychology. King’s counsel asked Dr. Gambow whether
¶143someone “showing the symptoms and the mental processes” that
¶144King displayed would be able to “distinguish between right and
¶145wrong,” to which she responded, “it does not seem so.” Dr. Gambow
¶146“determined that the cause of the psychosis was from phentermine.”
¶147 9 King also introduced testimony from two lay witnesses: his
¶148wife, Angela, and his girlfriend, Holly Hill. 6 Angela and King had
¶149been married for about 18 years before the crimes. She testified that
¶150aside from the few weeks leading up to the shooting, King had never
¶151shown “symptoms of mental illness or bizarre behavior” and had not
¶152to her knowledge “ever [been] diagnosed with any major mental
¶153illness.” The night before the crimes, however, King was acting
¶154“strange.” Angela also testified that King had been taking
¶155phentermine, and that when she gave King’s pill bottle to his prior
¶156lawyer, “there might have been like six” pills left in the bottle.7
¶157 Hill, who worked with King, had known him for a little over a
¶158year before the crimes; they had been in a relationship for “maybe
¶159like six months” before the crimes. She testified that King had not
¶160 6Evidence was presented that King was having an extramarital affair with Hill.
¶161 7 According to the State’s expert who testified later at trial, Dr. Randall Tackett, King should have had 14 phentermine pills in the bottle if he were taking one a day as prescribed. 10 shown any “symptoms of mental illness or any strange behavior”
¶162around her until “maybe like the two weeks before” the crimes.
¶163 King did not testify in his own defense.
¶164 (d) In rebuttal, the State offered the expert testimony of Dr.
¶165Randall Tackett, a professor at the University of Georgia College of
¶166Pharmacy who had worked in the fields of pharmacology and
¶167toxicology for “a little over 40 years.” The trial court qualified Dr.
¶168Tackett as an expert “in the field of pharmacology, toxicology, and
¶169regulatory affairs.” He explained that pharmacology “looks at how
¶170drugs produce their effects” and that toxicology “focuses more on the
¶171side effects or the adverse effects not only of drugs but also of
¶172chemicals and different substances.”
¶173 Dr. Tackett testified that King was prescribed 30 phentermine
¶174pills and that had he been taking one a day as prescribed, there
¶175would have been 14 left on the day of the crimes. He also testified
¶176that taking “more than the prescribed dosage . . . would greatly
¶177increase the potential” for phentermine to cause psychosis. Dr.
¶178Tackett testified that if King “was taking the drug as prescribed[,]
¶179 11 that it would not have caused psychosis.” But “if he was taking more
¶180of the drug than was prescribed, then that is a potential for causing
¶181the psychosis.” Even so, Dr. Tackett still “would not expect the
¶182psychosis to be prolonged to the extent that” King’s psychosis
¶183reportedly was. Dr. Tackett clarified that he did not evaluate
¶184“whether [King] was psychotic,” but examined whether King’s
¶185“reported psychosis” was caused by phentermine.
¶186 The jury convicted King on all counts. He was sentenced to life
¶187without the possibility of parole for malice murder and five years to
¶188be served consecutively for possession of a firearm during the
¶189commission of a felony.
¶190 2. King contends that the trial court committed reversible
¶191error when it failed to grant his motion for a new trial. Specifically,
¶192he argues that the trial court should have exercised its discretion as
¶193the thirteenth juror and granted King’s motion for new trial “in the
¶194interest of justice.” That argument implicates the “general grounds”
¶195for obtaining a new trial under OCGA §§ 5-5-20 & 5-5-21.
¶196 12 “When these so-called ‘general grounds’ are properly raised in
¶197a timely motion for new trial, the trial judge must exercise a broad
¶198discretion to sit as a ‘thirteenth juror.’” Ridley v. State, 315 Ga. 452,
¶199456 (883 SE2d 357) (2023) (citation and punctuation omitted).
¶200Sitting as the thirteenth juror “requires the judge to consider
¶201matters typically reserved to the jury, including conflicts in the
¶202evidence, witness credibility, and the weight of the evidence.” Id.
¶203But, contrary to King’s argument, “the merits of the trial court’s
¶204decision on the general grounds are not subject to our review,” id.,
¶205and the decision to grant a new trial on the general grounds “is
¶206vested solely in the trial court.” Ward v. State, No. S23A0139, 2023
¶207WL 3468140, at *4 (Ga. May 16, 2023) (citation and punctuation
¶208omitted).
¶209 To the extent King argues the trial court failed to exercise its
¶210discretion as the thirteenth juror, we disagree. In its order denying
¶211King’s motion for a new trial, the court expressly rejected King’s
¶212general grounds claim because it found that “the weight of the
¶213evidence does not preponderate heavily against the verdict and the
¶214 13 verdict was not contrary to the evidence or the principles of justice
¶215and equity.” King’s general grounds claim therefore fails.8 See
¶216Strother v. State, 305 Ga. 838, 843 (828 SE2d 327) (2019) (trial court
¶217properly exercised its discretion as the thirteenth juror when “[i]n
¶218its order denying the motion, the trial court referred to the
¶219numbered paragraphs in which Appellant asserted the general
¶220 8 King does not separately enumerate as alleged error that the evidence was insufficient under Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). However, in the past, in evaluating a trial court’s denial of a motion for new trial on the general grounds, see OCGA §§ 5-5-20 & 5-5-21, we have performed or referenced a constitutional due process sufficiency-of-the-evidence review under Jackson. See, e.g., Montgomery v. State, 315 Ga. 467, 474 (883 SE2d 351) (2023); Bundel v. State, 308 Ga. 317, 318-319 (840 SE2d 349) (2020); Lewis v. State, 296 Ga. 259, 261 (765 SE2d 911) (2014). But see Caviston v. State, 315 Ga. 279, 282-284 (882 SE2d 221) (2022) (limiting the general-grounds analysis to evaluating whether the trial court exercised its discretion when the defendant did not make a Jackson sufficiency argument as part of his general-grounds enumeration or separately). We have done so despite our recognition that the general grounds and a constitutionalsufficiency-of-the-evidence claim under Jackson are “two distinct legal arguments” and “require the trial court to apply distinct legal standards.” See Casey v. State, 310 Ga. 421, 425 (851 SE2d 550) (2020). We have also done so notwithstanding our statements that “[t]he merits of the trial court’s decision on the general grounds are not subject to our review.” Ridley, 315 Ga. at 456. Although many of us question whether it is proper for this Court to import Jackson into an appellate review of the general grounds (or to otherwise rely on Jackson as part of that analysis), we need not determine the propriety of that practice today. King’s general grounds claim fails in all events because the trial court exercised its discretion as the thirteenth juror, and because the evidence against King was constitutionally sufficient to affirm his convictions.
¶221 14 grounds in his motion and then said, ‘the State presented ample
¶222evidence to support the jury verdict and . . . the evidence was not
¶223sufficiently close nor represents a failure of justice in general’”)
¶224(alteration in original). See also Ward, No. S23A0139, 2023 WL
¶2253468140, at *4 (“We presume, in the absence of affirmative evidence
¶226to the contrary, that the trial court did properly exercise such
¶227discretion.”) (citation and punctuation omitted).
¶228 3. King contends that the trial court erred by admitting
¶229testimony and allowing argument about voluntary intoxication. 9
¶230First, he argues it was improper for the State to question witnesses
¶231and make closing arguments about voluntary intoxication.
¶232 Second, King argues that, even if voluntary intoxication
¶233generally was a permissible subject, certain testimony and
¶234arguments were improper because the State misstated the law of
¶235voluntary intoxication and the trial court should have issued an
¶236 9 In King’s brief, this enumeration’s heading complains about the trial court’s charge on involuntary intoxication, but the entirety of the substantive argument following the heading pertains to voluntary intoxication. We therefore construe King’s contention as pertaining to voluntary intoxication. 15 instruction clarifying the relationship between voluntary
¶237intoxication and an insanity defense. For the reasons below, King’s
¶238arguments fail.
¶239 (a) Some additional background is necessary before
¶240addressing King’s arguments. At trial, both the State and King
¶241asked multiple witnesses about voluntary intoxication, with respect
¶242to both illegal and prescription drugs. King’s counsel first asked Dr.
¶243Norman why he evaluated “illegal drug use” when he interviewed
¶244King. Dr. Norman responded that “voluntary intoxication, taking
¶245an illegal substance and getting intoxicated on that and that making
¶246our thinking go awry, is not an excuse.” King followed up by asking
¶247“hypothetically if someone just gets high on cocaine or high on
¶248crack[,] becomes psychotic and kills someone, is that voluntary
¶249intoxication?” Dr. Norman said that is “up to the law. But in my
¶250opinion as an examiner, that is voluntary intoxication.” On cross-
¶251examination, Dr. Norman agreed that “if someone misuses, abuses,
¶252overuses phentermine and became psychotic and killed someone,
¶253that would be voluntary intoxication[,]” “which is not a defense.”
¶254 16 Then, in questioning Dr. Flanagan, King asked whether
¶255“voluntary intoxication [is] a legitimate cause for being found [not
¶256guilty by reason of insanity.]” Dr. Flanagan said, “No.” On cross-
¶257examination, the State asked whether insanity caused by
¶258“misusing” or “abusing” a prescription drug is “voluntary
¶259intoxication,” which is “not a defense.” Dr. Flanagan said, “That’s
¶260correct.”
¶261 Last, in questioning Dr. Gambow, King asked whether
¶262“voluntary intoxication [is] grounds for not guilty by reason of
¶263insanity.” Dr. Gambow said it “is not.” On cross-examination, the
¶264State asked whether voluntary intoxication caused by illegal drugs
¶265or abusing a prescription is a defense, and Dr. Gambow agreed that
¶266it is not.
¶267 King argued in closing that there was no evidence of voluntary
¶268intoxication. The State, by contrast, argued in closing that if the
¶269jury found that King “was lacking in mental capacity due to
¶270voluntary intoxication,” such a finding would not support a defense
¶271for King. In doing so, it emphasized the evidence suggesting that
¶272 17 King was taking more phentermine than prescribed. King did not
¶273object to any of the above statements at trial.
¶274 (b) King contends that the trial court erred by allowing the
¶275State’s closing arguments about voluntary intoxication because
¶276those arguments were unsupported by the evidence and contained
¶277misstatements of the law. But King did not object at the time, so
¶278these claims are waived. See Walker v. State, 312 Ga. 232, 236-237
¶279(862 SE2d 285) (2021) (failure to object to closing arguments
¶280amounts to waiver); Gates v. State, 298 Ga. 324, 328-329 (781 SE2d
¶281772) (2016) (holding that the defendant “waived review of his
¶282arguments relating to the allegedly improper closing argument here
¶283due to his failure to object below” because plain-error review does
¶284not apply to closing arguments).
¶285 (c) King’s claims that the trial court erred by allowing witness
¶286testimony about voluntary intoxication and not issuing a clarifying
¶287instruction about the relationship between voluntary intoxication
¶288and King’s insanity defense are not preserved for ordinary appellate
¶289review because King did not object at trial to the relevant testimony
¶290 18 or request a clarifying instruction. We nonetheless review these
¶291claimed evidentiary and instructional errors for plain error. See
¶292Griffin v. State, 309 Ga. 860, 863-864 (849 SE2d 191) (2020)
¶293(evidentiary errors); Choisnet v. State, 295 Ga. 568, 571-572 (761
¶294SE2d 322) (2014) (instructional errors).
¶295 The plain-error standard has four prongs.
¶296 First, there must be an error or defect—some sort of “[d]eviation 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 only if the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’”
¶297Taylor v. State, 315 Ga. 630, 636 (884 SE2d 346) (2023) (quoting
¶298Gates, 298 Ga. at 327).
¶299 (i) We first address King’s claim that it was improper for the
¶300trial court to admit the State’s evidence about voluntary
¶301 19 intoxication. At trial, King asked all three experts he called about
¶302voluntary intoxication and incorporated arguments about the lack
¶303of voluntary intoxication into his closing. Therefore, King has
¶304affirmatively waived this claim and as a result has failed to show
¶305that the trial court plainly erred. See Griffin, 309 Ga. at 863-866
¶306(defense affirmatively waived objection to prosecution eliciting
¶307testimony about defendant’s racism because the defense made a
¶308strategic decision not to object to this evidence, and instead
¶309attempted to use it “to bolster his claim of self-defense and to
¶310undermine the State’s case”); Taylor v. State, 302 Ga. 176, 180-181
¶311(805 SE2d 851) (2017) (defense affirmatively waived objection to the
¶312State’s witness testifying about “his opinion on the issue of self-
¶313defense” because the defense deliberately introduced the topic of
¶314self-defense by asking the witness “several questions about his
¶315opinion about the viability of a self-defense claim”).
¶316 (ii) We next address King’s arguments that testimony about
¶317voluntary intoxication contained incorrect statements of law and
¶318that the trial court should have issued an instruction clarifying the
¶319 20 relationship between voluntary intoxication and an insanity
¶320defense. This claim fails because King cannot satisfy the plain-error
¶321test’s third prong: that the alleged error “likely affected the outcome
¶322of the trial.” Choisnet, 295 Ga. at 572 (citation and punctuation
¶323omitted).
¶324 King complains that expert witnesses testified that voluntary
¶325intoxication is not a defense without noting the exception that
¶326voluntary intoxication can be a defense when the intoxication
¶327results in a “permanently altered” “brain function so as to negate
¶328intent.” Perez v. State, 309 Ga. 687, 690 n.2 (848 SE2d 395) (2020)
¶329(quoting Horton v. State, 258 Ga. 489, 491 (371 SE2d 384) (1988) and
¶330Guyse v. State, 286 Ga. 574, 578 (690 SE2d 406) (2010)) (punctuation
¶331omitted). But King did not argue at trial, nor does he argue on
¶332appeal, that the jury was likely to have found that he met the
¶333requirements of that narrow exception. In fact, he argued at trial
¶334that he was not voluntarily intoxicated. And now on appeal, he
¶335reiterates that his “sole defense” at trial was “temporary insanity”—
¶336a claim that is hard to square with his new contention about an
¶337 21 exception to voluntary intoxication that would require his brain
¶338function to be permanently altered for the exception to apply. See
¶339Perez, 309 Ga. at 690 n.2. Moreover, King also has not pointed to
¶340any evidence suggesting he has such permanent brain alteration.
¶341Under these circumstances, King has not carried his burden under
¶342the plain-error test’s third prong to show that the jury hearing that
¶343voluntary intoxication is not a defense, without the trial court giving
¶344a clarifying instruction about the exception to that general rule,
¶345“likely affected the outcome of the trial.” See Choisnet, 295 Ga. at
¶346572-573 (holding that the trial court’s instruction on a delusional
¶347compulsion, “even granting” that it was incomplete, was “unlikely”
¶348to have affected the trial’s result because the defendant’s expert
¶349testified that the defendant “may have been” psychotic during the
¶350crimes and the State’s expert testified that he “did not believe” the
¶351defendant was acting under a delusional compulsion).
¶352 4. King contends that the trial court also erred by allowing
¶353testimony about King consuming illegal drugs and alcohol—
¶354testimony he labels as improper character evidence barred by OCGA
¶355 22 § 24-4-404. This claim fails under plain-error review because King
¶356affirmatively waived it.
¶357 (a) At King’s trial, multiple witnesses testified about whether
¶358King was known to consume drugs and alcohol. For example, King
¶359asked Dr. Norman whether he “address[ed] illegal drug use” when
¶360he interviewed King; Dr. Norman said that he did. King’s counsel
¶361then asked whether there was “a note anywhere in the medical
¶362records that suggested that [King] might have used cocaine.” Dr.
¶363Norman said yes, explaining that a medical record from while King
¶364was in jail reflected that, while meeting with a physician, “King
¶365admitted to using crack cocaine, smoking marijuana, and drinking
¶366alcohol,” and another medical record reflected that King later met
¶367with the same physician again and retracted that admission.
¶368 Dr. Norman testified that certain other medical records also
¶369showed that King denied using cocaine. Dr. Norman went on to say
¶370that King “certainly tried” to convince Dr. Norman that it was
¶371“completely impossible” for him to use drugs because King got his
¶372commercial driver’s license in 1996 and that King had been subject
¶373 23 to random drug tests because of his job as a truck driver but he had
¶374“never had any issues,” which King “used . . . as evidence that he did
¶375not use cocaine.” The State asked Dr. Norman about those same
¶376medical records reflecting King’s admission to consuming cocaine,
¶377marijuana, and alcohol. The State asked the same of Doctors
¶378Flanagan and Gambow on cross-examination and asked similar
¶379questions while examining the doctor to whom King made that
¶380admission.
¶381 King also asked Hill, among other things, whether she knew
¶382“King to use any illegal substance” and whether he was “subject to
¶383random drug screens” at work. Hill answered no to the first and yes
¶384to the second question. King also asked whether she knew him to
¶385drink alcohol and get intoxicated, and Hill responded that King
¶386drank “socially” and did not get intoxicated. And in response to a
¶387question from the State on cross-examination, Hill testified that
¶388King ordered at least one margarita at lunch the day before the
¶389murder. King’s trial counsel did not object to any of the above
¶390 24 statements and argued in closing that there was a lack of evidence
¶391of King’s voluntary intoxication.
¶392 (b) This enumeration is not preserved for ordinary appellate
¶393review: because King did not object to the relevant testimony at
¶394trial, we review it only for plain error. See Griffin, 309 Ga. at 863-
¶395864. And King’s argument fails under that review because, having
¶396introduced the issue of his alcohol and illegal drug use and argued
¶397as part of his defense that there was a lack of evidence of voluntary
¶398intoxication, King affirmatively waived this claim—thus failing the
¶399first prong of the plain-error test. See id.; Taylor, 302 Ga. at 180-
¶400181.
¶401 5. King contends that his trial counsel provided ineffective
¶402assistance under the Sixth Amendment to the United States
¶403Constitution in four respects: for failing to (1) properly obtain
¶404certification of medical records from while King was incarcerated for
¶405the crimes; (2) object to character evidence about King’s alcohol and
¶406drug consumption; (3) object to an alleged “golden rule” violation;
¶407 25 and (4) object to misstatements about the definition of voluntary
¶408intoxication and failing to request a clarifying instruction.
¶409 To prevail on a claim of ineffective assistance of counsel, a
¶410defendant generally must show that counsel’s performance was
¶411deficient and that the deficient performance resulted in prejudice to
¶412the defendant. See Strickland v. Washington, 466 U.S. 668, 687 (104
¶413SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356
¶414(689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant
¶415must demonstrate that his attorney “performed at trial in an
¶416objectively unreasonable way considering all the circumstances and
¶417in the light of prevailing professional norms.” Romer v. State, 293
¶418Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466 U.S.
¶419at 687-688. To satisfy the prejudice prong, a defendant must
¶420establish a reasonable probability that, in the absence of counsel’s
¶421deficient performance, the result of the trial would have been
¶422different. See id. at 693-694. “If an appellant fails to meet his or
¶423her burden of proving either prong of the Strickland test, the
¶424 26 reviewing court does not have to examine the other prong.”
¶425Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
¶426 Claims of ineffective assistance of counsel involve mixed
¶427questions of law and fact, and “a trial court’s factual findings made
¶428in the course of deciding an ineffective assistance of counsel claim
¶429will be affirmed by the reviewing court unless clearly erroneous.”
¶430Green v. State, 302 Ga. 816, 818 (809 SE2d 738) (2018) (citation and
¶431punctuation omitted). Conclusions of law based on those facts are
¶432reviewed de novo. See Bright v. State, 292 Ga. 273, 274 (736 SE2d
¶433380) (2013).
¶434 (a) King contends his trial counsel was ineffective for failing
¶435properly to obtain certification of medical records from the time of
¶436King’s incarceration, preventing their admission under the so-called
¶437business records exception to the rule against hearsay. See OCGA
¶438§ 24-8-803 (6). King argues that his trial counsel’s failure to obtain
¶439proper certification was constitutionally deficient because counsel
¶440had ample time to do so and the decision not to obtain proper
¶441certification was not a part of her trial strategy. He further argues
¶442 27 that he suffered prejudice as a result because the jurors were unable
¶443to review the records themselves and instead had to rely on
¶444testimony about what the records contained, and the jury might not
¶445have found the witnesses’ testimony about the records credible.
¶446Assuming without deciding that his trial counsel was deficient in
¶447this respect, King has failed to meet his burden of showing prejudice.
¶448 At trial, while questioning Dr. Norman, King sought to admit
¶449certified medical records from King’s post-arrest visit to Central
¶450State Hospital. The court did not admit those records but suggested
¶451to King’s trial counsel that if she wanted them admitted into
¶452evidence, she should “start making some efforts” to obtain proper
¶453certification. Even though the medical records themselves were not
¶454admitted into evidence, Doctors Norman, Flanagan, and Gambow
¶455testified that they reviewed those records, and Dr. Flanagan and Dr.
¶456Gambow testified about the contents of the records.
¶457 King’s trial counsel testified at the motion for new trial hearing
¶458and said that she discovered there was an issue with getting the
¶459relevant medical records certified “right before trial.” Knowing “that
¶460 28 [the] doctors were going to be able to testify about” the records,
¶461which is “what mattered,” she did not seek a continuance to obtain
¶462certification so that the records themselves could be admitted.
¶463When asked whether there were “items in the medical records that
¶464tended to support” King’s defense that were not “discussed by each
¶465of the doctors,” she said “not that I recall, no.” King did not admit
¶466the medical records into evidence at the motion for new trial stage,
¶467and the trial court held that King did not suffer any prejudice from
¶468counsel’s alleged deficiency in failing to obtain certified copies of the
¶469records and admitting them into evidence.
¶470 Here, King has failed to show prejudice because he has failed
¶471to show that there is a “reasonable probability” of a better result had
¶472his trial counsel admitted those medical records. Foreman v. State,
¶473306 Ga. 567, 570 (832 SE2d 369) (2019) (citation and punctuation
¶474omitted). King did not admit the medical records at the motion for
¶475new trial stage, nor has he pointed to anything contained in the
¶476records that would have been useful to him that the jury did not hear
¶477at trial. We are accordingly left to speculate about the records’
¶478 29 contents and their utility to King, whether by corroborating the
¶479witnesses’ testimony about the records or providing additional,
¶480helpful information. But speculation is insufficient to show
¶481prejudice. See id. at 570-571 (defendant failed to show prejudice
¶482from his trial counsel not calling a certain witness and putting a
¶483photograph of the witness into evidence at trial when the defendant
¶484did not have the witness testify at the motion for new trial hearing
¶485and did not put a photograph of the witness into the motion for new
¶486trial record). Accordingly, this claim fails.
¶487 (b) King contends that his trial counsel provided ineffective
¶488assistance of counsel by not objecting to testimony about his drug
¶489and alcohol consumption as improper character evidence. This
¶490claim was not raised at the motion for new trial stage, when King
¶491had new counsel, so it is waived. See Elkins v. State, 306 Ga. 351,
¶492361(830 SE2d 217) (2019).
¶493 (c) King argues that his trial counsel provided ineffective
¶494assistance by not objecting to an alleged “golden rule” violation. See
¶495Menefee v. State, 301 Ga. 505, 512 (801 SE2d 782) (2017) (defining
¶496 30 the “golden rule”). Because we see no violation of the “golden rule,”
¶497we conclude that King’s trial counsel was not constitutionally
¶498deficient in this regard.
¶499 During closing, the prosecutor said the following:
¶500 Close your eyes. I want you to envision it being a beautiful spring morning here in Decatur, Georgia, March 28th, 2018. The sun is out.
¶501 The weather was nice. Michael Brooks is walking along Glenwood [Road] in Decatur, Georgia. He was walking to the bus stop to go home to meet his mom, Hannah Pittmon, to help her clean that day because she owned a cleaning business. He was walking. I want you to imagine a pickup truck driving down Glenwood Westbound, seeing Michael, making a U-turn right at Hooper Street, driving back down and passing Michael, turning into the parking lot of [the restaurant], and lying in wait for him to walk by. I want you to picture Michael walking and passing that pickup truck. I want you to envision this sound as Michael walks by. I want you to envision Michael dropping to the ground and sliding along that sidewalk after being shot. I want you to picture him being able to pick his injured body up and run away from the danger and try to run to safety, but collapsing again because of the injury he just sustained. I want you to picture the defendant getting out of his truck and chasing Michael into the middle of that road and standing over him and shooting him multiple times over and over and over and over and over and over again, and unloading his clip. I want you to picture [multiple witnesses] watching in horror. I want you to hear the women yelling, no, from
¶502 31 inside of that salon. I want you to continue to walk with me down this lane of horrible memories. I want you to picture these people, these witnesses, running to Michael’s aid, but it’s too late. I want you to picture the defendant walking away after nodding his head like, yeah, I did that, getting in his truck and driving off. I want you to envision the trauma that these people probably still experience because of what they witnessed. I want you to picture Ms. Pittmon getting that call that day from a detective telling her that her son was murdered and him walking out of her life for eternity. Then I want you to picture the defendant, as he put it on a jail call, walking because y’all find him not guilty. I want y’all to picture him walking amongst us at some point in time in the future because y’all find him not guilty by reason of insanity. Now, I want you to open your eyes from that nightmare, and I want y’all to go back to the jury deliberation room after the judge gives you the law and find him guilty.
¶503King claims the State violated the “golden rule” when it asked the
¶504jury to imagine King “walking amongst us at some point in time in
¶505the future because [the jury found] him not guilty by reason of
¶506insanity.” 10
¶507 10King does not contend that the State’s closing argument included commentary about his “future dangerousness.” See, e.g., Wyatt v. State, 267 Ga. 860 (485 SE2d 470) (1997). We express no view on that issue, including about whether an argument about future dangerousness would be undermined by recent legal developments. 32 Under Georgia law, “golden rule” violations occur when a party
¶508asks the “jurors to place themselves in the position of the victims.”
¶509Menefee, 301 Ga. at 512. But the prosecutor here did not ask the
¶510jurors to place themselves in the victim’s position, so a “golden rule”
¶511objection would have failed. See Rucker v. State, 291 Ga. 134, 138
¶512(728 SE2d 205) (2012) (concluding that the prosecutor did not violate
¶513the “golden rule” when the defendant raised an insanity defense and
¶514the State pointed “out the number of potentially dangerous people
¶515like [him] in society” and said, “Are we really so sure of this science
¶516of forensic psychology and psychiatry that we bet our lives on it?”);
¶517Sanders v. State, 290 Ga. 637, 640 & n.3 (723 SE2d 436) (2012)
¶518(concluding that a prosecutor did not violate the “golden rule” by
¶519stating that “it could have been anybody” whom the defendant
¶520killed), superseded by statute on other grounds as recognized in
¶521State v. Orr, 305 Ga. 729, 736 (827 SE2d 892) (2019). And because
¶522failing to make a meritless objection is not constitutionally deficient,
¶523Jones v. State, 314 Ga. 466, 471 (877 SE2d 568) (2022), this claim
¶524fails.
¶525 33 (d) King contends that his trial counsel was ineffective by not
¶526objecting to alleged misstatements about the definition of voluntary
¶527intoxication and not requesting a clarifying instruction about the
¶528interaction between voluntary intoxication and insanity—the same
¶529statements at issue in his second enumeration of error. Assuming
¶530without deciding that his trial counsel was deficient, King has failed
¶531to show he was prejudiced.
¶532 As with King’s second enumeration of error, King takes issue
¶533with witness testimony and the State’s argument that voluntary
¶534intoxication is not a defense. A more accurate statement of law, he
¶535argues, would have included that voluntary intoxication is a defense
¶536“in the extreme situation” where the intoxication results in a
¶537“permanently altered” “brain function so as to negate intent.” See
¶538Perez, 309 Ga. at 690 n.2.
¶539 But King has failed to show that there is a reasonable
¶540probability that he would have achieved a better result at trial but
¶541for this assumed deficiency. See Munn v. State, 313 Ga. 716, 728
¶542(873 SE2d 166) (2022) (citation and punctuation omitted). Indeed,
¶543 34 King’s argument suffers from the same defect as in the second
¶544enumeration: the theory of King’s defense at trial was that he was
¶545temporarily insane and that he was not voluntarily intoxicated at
¶546all; he did not argue that he suffered from permanent brain damage
¶547preventing him from manifesting intent, and he has not pointed to
¶548any evidence at trial (nor have we identified any) that would have
¶549supported that theory. Thus, King has failed to show that, had the
¶550jury been aware that voluntary intoxication could potentially be a
¶551defense in an “‘extreme situation,’” Perez, 309 Ga. at 690 n.2, there
¶552is a reasonable probability he would have achieved a better result at
¶553trial. See Choisnet, 295 Ga. at 572-573; Grier v. State, 313 Ga. 236,
¶554246 (869 SE2d 423) (2022) (“The test for prejudice in the ineffective
¶555assistance analysis is equivalent to the test for harm in plain[-]error
¶556review.”) (cleaned up). See also Munn, 313 Ga. at 723, 728
¶557(defendant was not prejudiced by trial counsel not requesting jury
¶558 35 instruction on justification when the evidence of justification was
¶559weak). This enumeration therefore fails.11
¶560 Judgment affirmed. All the Justices concur.
¶561 11 Citing State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020), King also argues that the cumulative effect of the errors and deficiencies in his case affected the outcome of his trial even if none did alone. Assuming one error in the plain-error context (that the trial court admitted testimony misstating the law of voluntary intoxication) and two deficiencies in the ineffective assistance of counsel context (the first concerning trial counsel’s failure to obtain properly certified medical records and the second also concerning the misstatements of the law of voluntary intoxication), King “has not demonstrated a reasonable probability that, but for these failures, the outcome of the proceeding would have been different.” See Payne v. State, 314 Ga. 322, 334 (877 SE2d 202) (2022) (cumulative effect of a presumed clear error by the trial court not giving an accomplice corroboration charge, a presumed deficiency by trial counsel for not requesting that charge, and a presumed deficiency by trial counsel for not objecting to hearsay was insufficient to establish cumulative error). 36