¶1NOTICE: 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: March 5, 2024
¶4 S24A0148. MADERA v. THE STATE.
¶5 BETHEL, Justice.
¶6 Francisco Javier Madera was convicted of the malice murder of
¶7Juan Carlos Zambrano. 1 On appeal, Madera raises five claims of
¶8error: (1) the trial court erred by denying his motion for new trial on
¶9the general grounds; (2) the trial court erred by admitting video
¶10footage of the injured Zambrano; (3) the trial court erred by
¶11admitting evidence pursuant to OCGA § 24-8-803 (5); (4) trial
¶12 1 The crimes occurred on October 13, 2017. In January 2018, a Cobb
¶13County grand jury indicted Madera for malice murder, felony murder, and aggravated assault. Following a September 2019 jury trial, Madera was found guilty of all counts. The trial court sentenced Madera to serve life in prison for malice murder; the felony murder count was vacated by operation of law, and the aggravated assault count merged for sentencing. Madera filed a timely motion for new trial, which he amended through new counsel. Following a hearing, the trial court denied the motion, as amended, on August 2, 2023. Madera thereafter filed a timely notice of appeal, and the case was docketed to this Court’s term commencing in December 2023 and submitted for a decision on the briefs. counsel was ineffective in two respects; and (5) the cumulative effect
¶14of the trial court’s errors and counsel’s deficient performance
¶15requires a new trial. For the reasons that follow, we affirm.
¶16 1. Viewed in the light most favorable to the jury’s verdicts, the
¶17evidence presented at trial showed as follows. On the night of
¶18October 13, 2017, Madera, Zambrano, and others attended a party
¶19at the Cobb County home of Elma Escobar. While Madera and
¶20Zambrano were dancing with the same woman, the two began
¶21arguing, and, later in the evening, they physically fought each other.
¶22Several partygoers separated Madera and Zambrano, and Escobar
¶23asked Madera to leave.
¶24 Escobar walked Madera to his vehicle, and Madera began to
¶25leave. As Escobar was walking back to the house, however, she
¶26heard Madera “unlocking” his firearm and saw that he had stopped
¶27his vehicle in the road and had exited the vehicle. Though Escobar
¶28grabbed Madera and tried to calm him, he pointed his gun at
¶29Zambrano and fired. Witnesses testified that, immediately before
¶30the shooting, Zambrano was hugging another partygoer, and three
¶31 2 witnesses testified that Zambrano did not have anything in his
¶32hands when he was shot and did not have a gun in his possession
¶33that night. Escobar heard one gunshot followed by two more and
¶34then saw Zambrano clutching his abdomen. Zambrano fell to the
¶35ground after being shot. Edwin Santos Saez, another partygoer,
¶36testified that, after Zambrano fell to the ground, Madera shot him
¶37again. Another partygoer heard Madera direct two slurs at
¶38Zambrano during the shooting. After shooting Zambrano, Madera
¶39fled and was arrested two days later at a hotel in Little Rock,
¶40Arkansas.
¶41 Escobar called an ambulance and the police, but Zambrano
¶42asked to be driven to the hospital. Zambrano was placed in Saez’s
¶43vehicle, and en route to the hospital, Saez crossed paths with and
¶44flagged down officers responding to Escobar’s earlier call. Officers
¶45found the unconscious Zambrano in the front passenger seat; he had
¶46gunshot wounds to the left side of his abdomen and the upper area
¶47of his back. The officers applied pressure to Zambrano’s wounds
¶48while waiting for emergency medical services to arrive, and their
¶49 3 actions were captured by their body cameras. Zambrano was
¶50transported to the hospital, where he died as a result of his wounds
¶51the following day.
¶52 At trial, Madera testified that he acted in self-defense after
¶53seeing a snub-nosed revolver in Zambrano’s right hand. The State,
¶54however, presented evidence showing that no weapons were found
¶55on Zambrano’s person or during a search of Saez’s vehicle and that
¶56no guns or ammunition were found during a search of Escobar’s
¶57home the day after the shooting.
¶58 On appeal, Madera first argues that the trial court should have
¶59granted him a new trial on the “general grounds” because, he says,
¶60some of the evidence against him was conflicting. See OCGA §§ 5-5-
¶6120 (authorizing grant of new trial if the trial judge concludes that
¶62the jury’s verdict is “contrary to evidence and the principles of
¶63equity and justice”) and 5-5-21 (authorizing grant of new trial if the
¶64trial judge concludes that the jury’s verdict is “decidedly and
¶65strongly against the weight of the evidence”). The general grounds
¶66require a trial court “to exercise a broad discretion to sit as a
¶67 4 ‘thirteenth juror’” and “consider some of the things that he cannot
¶68when assessing the legal sufficiency of the evidence, including any
¶69conflicts in the evidence, the credibility of witnesses, and the weight
¶70of the evidence.” Hinton v. State, 312 Ga. 258, 262 (1) (c) (862 SE2d
¶71320) (2021). “We review whether the trial court exercised its
¶72discretion as the thirteenth juror, but the decision to grant a new
¶73trial on the general grounds is vested solely in the trial court and is
¶74not subject to our review.” Weems v. State, 318 Ga. 98, 102-103 (3)
¶75(___ SE2d ____) (2024). Here, in its order denying Madera’s motion
¶76for new trial, the trial court, after stating that it independently
¶77reviewed the evidence and considered the credibility of witnesses,
¶78expressly rejected Madera’s general grounds claim. Thus, the trial
¶79court’s order shows that the court properly exercised its discretion
¶80under OCGA §§ 5-5-20 and 5-5-21, and Madera’s argument “is
¶81otherwise not subject to review by this Court.”2 See Weems, 318 Ga.
¶82 2 Madera does not separately argue that the evidence was insufficient to
¶83support his conviction as a matter of constitutional due process under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). In previous appeals in which an appellant raised a general-grounds claim, we have often
¶84 5 at 103 (3).
¶85 2. Madera next challenges the admission of a video and audio
¶86recording from a police officer’s body camera which showed
¶87emergency responders rendering aid to the wounded Zambrano in
¶88Saez’s vehicle. Specifically, Madera asserts for the first time on
¶89appeal that the admission of an “excessive number of photographic
¶90exhibits” at trial, including autopsy photographs, rendered the body
¶91camera footage cumulative and, thus, “unfairly prejudicial.”
¶92Because Madera did not object on this basis at trial, we review this
¶93claim only for plain error.3 See Gates v. State, 298 Ga. 324, 327 (3)
¶94reviewed the sufficiency of the evidence as a matter of constitutional due process, though many of us have questioned the soundness of that approach. See King v. State, 316 Ga. 611, 616 (2) n.8 (889 SE2d 851) (2023). Like in King, however, we need not determine the propriety of that approach in this case because the evidence against Madera was constitutionally sufficient to affirm his conviction. 3 In a pretrial motion in limine, Madera sought to have the footage
¶95excluded on the basis that it had “no relevance to any matter in dispute.” Noting that the footage showed Zambrano “injured, lying down in a car, and moaning and writhing in pain,” Madera argued that the footage would “no doubt be shocking to a jury” and that, as a result, “its prejudicial effect substantially outweighs any probative value that it may have.” But the motion in limine did not expressly challenge the footage as cumulative and Madera did not lodge a separate contemporaneous objection on the related basis he now argues on appeal, so our review is limited to plain error. See Washington v. State, 312 Ga. 495, 500 (2) (b) n.8 (863 SE2d 109) (2021); Williams v. Harvey,
¶96 6 (781 SE2d 772) (2016); OCGA § 24-1-103 (a), (d). To establish plain
¶97error, Madera bears the burden of demonstrating that the alleged
¶98error “was not affirmatively waived”; that it was “clear and not open
¶99to reasonable dispute”; that it “affected his substantial rights”; and
¶100that it “seriously affected the fairness, integrity, or public reputation
¶101of judicial proceedings.” Jones v. State, 317 Ga. 466, 473 (2) (893
¶102SE2d 741) (2023) (citations and punctuation omitted). And where an
¶103appellant fails to establish one element of the plain error test, we
¶104need not consider the others. See id.
¶105 Madera argues only that the footage at issue should have been
¶106excluded as cumulative of other exhibits admitted at trial,
¶107specifically autopsy photographs. It is well settled, however, that the
¶108erroneous admission of evidence that is merely cumulative of other
¶109properly admitted evidence is generally harmless, particularly
¶110where the evidence of the defendant’s guilt is strong. See, e.g., Allen
¶111311 Ga. 439, 452 (2) (858 SE2d 479) (2021) (“Although a party does not waive an error by failing to object to admission of evidence after a motion in limine is denied, this rule cannot be invoked to preserve a different, if perhaps related, error.” (citation and punctuation omitted)). 7 v. State, 310 Ga. 411, 417 (3) (851 SE2d 541) (2020); Smith v. State,
¶112307 Ga. 106, 115 (5) (834 SE2d 750) (2019). And here, Madera does
¶113not argue that the autopsy photographs were improperly admitted,
¶114and the evidence of his guilt, which included the testimony of
¶115multiple eyewitnesses who rebutted his claim of self-defense, was
¶116strong. Thus, even assuming that it was clear error to admit the
¶117footage showing the injured Zambrano, we conclude that Madera
¶118“cannot establish that the error affected his substantial rights
¶119because he has not made an affirmative showing that the error
¶120probably affected the outcome of his trial.” Allen, 310 Ga. at 416 (3)
¶121(rejecting plain error claim where evidence at issue “was cumulative
¶122of other unchallenged evidence” and evidence of defendant’s guilt
¶123was strong). See also Jones, 317 Ga. at 473 (2) (appellant failed to
¶124show how alleged erroneous admission of evidence affected his
¶125substantial rights where the evidence “was cumulative of other
¶126properly admitted evidence at trial” and there was “substantial
¶127evidence of [appellant’s] guilt”); Perryman-Henderson v. State, 316
¶128Ga. 626, 632-633 (3) (889 SE2d 814) (2023) (appellant failed to show
¶129 8 how alleged error affected his substantial rights in light of the
¶130evidence against him, including eyewitness testimony that was not
¶131consistent with his version of events). Accordingly, this plain error
¶132claim fails.
¶133 3. Madera next contends that the State failed to lay a proper
¶134foundation for admitting as a recorded recollection a witness’s
¶135videotaped statement to investigators, see OCGA § 24-8-803 (5), and
¶136that the trial court therefore erred by admitting it. Because Madera
¶137did not object on this ground at trial, 4 we review this claim for plain
¶138error. See Varner v. State, 306 Ga. 726, 730 (2) (b) (832 SE2d 792)
¶139(2019).
¶140 While testifying on direct examination, Saez initially was
¶141unable to recall whether Madera said anything to Zambrano as
¶142Madera fired his weapon, though Saez had given a videotaped
¶143statement to police shortly after the shooting during which he
¶144recounted that Zambrano “was on the ground, and [Madera] walked
¶145 4 At trial, Madera objected to the admission of this evidence only on
¶146Confrontation Clause grounds. 9 up to him and said what’s up now, or what’s up [and] shot him
¶147again.” Pursuant to OCGA § 24-8-803 (5) (“Rule 803 (5)”),5 the State
¶148then moved to admit a portion of Saez’s videotaped statement as a
¶149past recollection recorded. Outside the jury’s presence, Saez testified
¶150that he recalled giving the statement, that he watched the recording
¶151of the statement, that his memory was “a bit” better when he made
¶152the statement than it was at trial, and that he was truthful when he
¶153made the statement. The trial court found a sufficient foundation to
¶154admit Saez’s videotaped statement, Madera raised no further
¶155objection, and a brief portion of Saez’s statement was played in the
¶156jury’s presence.
¶157 Pointing to Saez’s response that his memory was “a bit” better
¶158at the time of the interview, Madera now complains that Saez’s
¶159 5 Rule 803 (5) states that the following is not excluded by the general rule
¶160against hearsay evidence: [a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but shall not itself be received as an exhibit unless offered by an adverse party[.] 10 testimony was insufficient to lay a foundation for the admission of
¶161the videotaped statement under Rule 803 (5). As Madera reads it,
¶162our decision in Pierce v. State, 302 Ga. 389, 391-393 (1) (a) (807 SE2d
¶163425) (2017)—the sole case on which Madera relies—held that the
¶164“vital element” for laying a foundation under Rule 803 (5) is an
¶165“absolute affirmative” statement that the witness’s memory was
¶166better when the recorded recollection was made. But Pierce imposes
¶167no such requirement. Instead, Pierce makes clear that the pertinent
¶168analysis is whether the witness’s testimony “was sufficient to
¶169establish under [Rule 803 (5)] that the [recorded recollection]
¶170concerned a matter about which [the witness] once had knowledge
¶171but at trial had insufficient recollection, which was made or adopted
¶172when the matter was fresh in his memory, and which correctly
¶173reflected his knowledge.” 302 Ga. at 392-393 (1) (a). As Madera
¶174points to no precedent imposing a requirement that the witness
¶175testify in the “absolute affirmative” that his memory was better
¶176when the recorded recollection was made and we are aware of none,
¶177he has failed to show that the trial court committed clear and
¶178 11 obvious error, and thus no plain error, in admitting the brief portion
¶179of Saez’s interview pursuant to Rule 803 (5). See Clay v. State, 309
¶180Ga. 593, 597 (4) (a) (847 SE2d 530) (2020) (“[A]n error cannot be
¶181plain where there is no controlling authority on point.” (citation and
¶182punctuation omitted)).
¶183 4. Madera argues that his trial counsel was constitutionally
¶184ineffective in two ways. To succeed on these claims, Madera must
¶185show both that trial counsel’s performance was deficient and that he
¶186suffered prejudice as a result. See Strickland v. Washington, 466
¶187U. S. 668, 687 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). To
¶188establish deficiency, Madera “must demonstrate that his attorney
¶189performed at trial in an objectively unreasonable way considering
¶190all the circumstances and in the light of prevailing professional
¶191norms.” Pope v. State, 311 Ga. 557, 559 (858 SE2d 492) (2021)
¶192(citation and punctuation omitted). “[D]ecisions regarding trial
¶193tactics and strategy may form the basis for an ineffectiveness claim
¶194only if they were so patently unreasonable that no competent
¶195attorney would have followed such a course.” Davis v. State, 299 Ga.
¶196 12 180, 183 (2) (787 SE2d 221) (2016) (citation and punctuation
¶197omitted). To establish prejudice, Madera must show a reasonable
¶198probability that, but for counsel’s deficient performance, the result
¶199at trial would have been different. See Strickland, 466 U. S. at 694
¶200(III) (B). “We need not address both components of the inquiry if the
¶201defendant makes an insufficient showing on one.” Suggs v. State,
¶202310 Ga. 762, 768 (7) (853 SE2d 674) (2021). “[A] trial court’s factual
¶203findings made in the course of deciding an ineffective assistance of
¶204counsel claim will be affirmed by the reviewing court unless clearly
¶205erroneous,” while “[c]onclusions of law based on those facts are
¶206reviewed de novo.” Taylor v. State, 315 Ga. 630, 647 (5) (b) (884 SE2d
¶207346) (2023) (citation and punctuation omitted).
¶208 (a) Madera contends that trial counsel did not conduct an
¶209adequate investigation of his case, pointing to a litany of actions
¶210that, he says, counsel failed to undertake in preparing the case for
¶211trial. But even assuming that counsel’s investigation was
¶212inadequate, Madera “has not suggested, much less shown, what
¶213further investigation would have revealed or how it would have
¶214 13 helped his defense” and, thus, “has failed to prove the required
¶215prejudice.” Suggs, 310 Ga. at 768 (7) (a). See also Lupoe v. State, 300
¶216Ga. 233, 241 (2) (b) (794 SE2d 67) (2016) (“To show prejudice on a
¶217claim that trial counsel failed to adequately investigate the case, [a
¶218defendant must] at least make a proffer as to what additional
¶219investigation would have uncovered, and not merely speculate that
¶220such information exists and would have made a difference.” (citation
¶221and punctuation omitted)). Accordingly, his argument that trial
¶222counsel was ineffective on this ground fails.
¶223 (b) Madera also contends that trial counsel was ineffective for
¶224failing to pursue a pretrial motion for immunity based on
¶225justification. See OCGA § 16-3-24.2 (“A person who uses threats or
¶226force in accordance with [certain statutes governing justification as
¶227a defense, including self-defense,] shall be immune from criminal
¶228prosecution therefor unless in the use of deadly force, such person
¶229utilizes a weapon the carrying or possession of which is unlawful by
¶230such person under [OCGA §§ 16-11-120 to 16-11-125].”). In rejecting
¶231this claim below, the trial court credited counsel’s testimony at the
¶232 14 motion-for-new-trial hearing that he “believed [Madera] was
¶233unlikely to prevail in an immunity motion” and “wanted the State
¶234to have to grapple with [Madera’s] theory of defense and [Madera’s]
¶235testimony for the first time at trial.” On that basis, the trial court
¶236concluded that counsel made a reasonable strategic decision not to
¶237pursue such a motion and that Madera had failed to establish that
¶238counsel’s decision was unreasonable.
¶239 On appeal, Madera, pointing to his own testimony at the
¶240motion-for-new-trial hearing, argues only that trial counsel “did not
¶241thoroughly discuss with him the prospect of filing [a pre-trial
¶242immunity] motion” and that he “disagreed” with counsel’s strategy.
¶243But Madera’s after-the-fact disagreement with trial counsel’s
¶244strategy does not mean that the strategy was objectively
¶245unreasonable. See Szorcsik v. State, 303 Ga. 737, 743 (5) (814 SE2d
¶246708) (2018) (“[T]he fact that the trial counsel . . . made certain
¶247difficult decisions regarding the defense tactics to be employed with
¶248which appellant and his present counsel now disagree does not
¶249require a finding that the representation below was so inadequate
¶250 15 as to amount to a denial of effective assistance of counsel.” (citations
¶251and punctuation omitted)). Madera otherwise makes no attempt to
¶252show “how his trial counsel’s strategic decision not to reveal the
¶253defense theory to the prosecutor before trial, and instead to wait and
¶254present [the] self-defense claim to the jury, was objectively
¶255unreasonable.” Pope, 311 Ga. at 560-561 (where trial counsel
¶256testified that “she did not think that the trial judge would find [a
¶257pretrial immunity motion] sufficiently compelling to grant [and] just
¶258saved it for trial,” appellant failed to show that counsel’s strategic
¶259decision was unreasonable); see also Dent v. State, 303 Ga. 110, 119
¶260(4) (d) (810 SE2d 527) (2018) (where trial counsel testified that he
¶261strategically decided to forgo filing a pretrial immunity motion “as
¶262he did not want to expose [appellant] to pre-trial cross-examination
¶263from the State, thereby previewing [appellant’s] anticipated trial
¶264testimony, and that he chose to attempt to demonstrate self-defense
¶265to the jury, as opposed to the judge,” appellant failed to show that
¶266counsel’s “tactical decision was unreasonable”). Madera thus has
¶267failed to show that counsel’s performance was constitutionally
¶268 16 deficient, and this claim fails.
¶269 5. Finally, Madera argues that the cumulative effect of the trial
¶270court’s errors and trial counsel’s deficient performance requires a
¶271new trial. But here, we have identified no trial court error, and we
¶272have assumed deficiency with respect to only one alleged instance of
¶273counsel’s ineffective assistance and concluded that Madera failed to
¶274show he was prejudiced thereby. Thus, “there are no errors to
¶275aggregate, and his claim of cumulative error also fails.” Blocker v.
¶276State, 316 Ga. 568, 583 (5) (889 SE2d 824) (2023).
¶277 Judgment affirmed. All the Justices concur.
¶278 17