¶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.
¶2 SUPREME COURT OF GEORGIA Case No. S24A0333
¶3 June 27, 2024
¶4 The Honorable Supreme Court met pursuant to adjournment.
¶5The following order was passed:
¶6 ERICA CLAUDETTE WHITE v. THE STATE.
¶7 Upon consideration, the Court has revised the deadline for motions for reconsideration in this matter. It is ordered that a motion for reconsideration, if any, including motions submitted via the Court’s electronic filing system, must be received in the Clerk’s Office by 12:00 p.m. on Friday, July 5, 2024.
¶8 SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta
¶9 I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.
¶10 , Clerk In the Supreme Court of Georgia
¶11 Decided: June 27, 2024
¶12 S24A0333. WHITE v. THE STATE.
¶13 WARREN, Justice.
¶14 In February 2018, Erica Claudette White was convicted of
¶15malice murder and other crimes in connection with the November
¶162014 death of her son, Tyrael McFall (“Tyrael”), whom the State
¶17alleged died from codeine poisoning. 1 She appeals those convictions,
¶18 1 Tyrael died on November 8, 2014. On August 25, 2017, a Cobb County grand jury indicted White and her boyfriend, Michael Robert Schullerman, for malice murder (Count 1), felony murder predicated on aggravated battery (Count 2), aggravated battery (Count 3), making a false statement (Counts 4 and 6), identity fraud (Counts 5, 7, and 8), financial-transaction card fraud (Counts 9 through 14), forgery in the second degree (Count 15), and violating the Racketeer Influenced and Corrupt Organizations Act, OCGA § 16-14-4 (c) (Count 16). Schullerman pled guilty to Counts 4 through 16 on December 4, 2017, and the State dismissed the other charges against him. On February 5, 2018, a jury found White guilty on all counts. Regarding Count 16, the jury found that all but two of 37 overt acts listed in Count 16 constituted a pattern of racketeering activity under OCGA § 16-14-4. On February 7, 2018, the trial court sentenced White to serve life in prison without the possibility of parole for malice murder (Count 1), 5 years in prison for each count of making a false statement (Counts 4 and 6), 10 years in prison for each count of identity fraud (Counts 5, 7, and 8), 3 years in prison for each count of financial-transaction
¶19 1 contending that the trial court abused its discretion by denying her
¶20motion for new trial on the general grounds; admitting photographs
¶21from Tyrael’s autopsy; and denying her motion to sever certain
¶22counts in the indictment. White also claims that the trial court erred
¶23by denying her general and special demurrers; motion for new trial
¶24on the grounds that her trial counsel rendered ineffective assistance
¶25of counsel; and motion for new trial on the basis that the State
¶26committed a Brady violation. See Brady v. Maryland, 373 U.S. 83
¶27(83 SCt.1194, 10 LEd2d 215) (1963). For the reasons explained
¶28below, White’s claims fail and we affirm her convictions.
¶29 1. As relevant to her claims on appeal, the evidence presented
¶30at White’s trial showed the following. In 2012, White married
¶31card fraud (Counts 9 through 14), 5 years in prison for forgery in the second degree (Count 15), and 20 years in prison for violating the Racketeer Influenced and Corrupt Organizations Act (Count 16), with Counts 4 through 16 to be consecutively served. The felony murder count (Count 2) was vacated by operation of law. The aggravated battery count was merged into Count 1. White timely moved for a new trial on February 19, 2018, and then filed an amended motion for new trial on May 28, 2021. On September 20, 2023, after an evidentiary hearing, the trial court denied White’s motion for new trial, as amended. White timely filed a notice of appeal on September 27, 2023. This case was docketed to the term of this Court beginning in December 2023 and submitted for a decision on the briefs. 2 Joseph McFall (“Joseph”), and in August of that year, Tyrael was
¶32born. Only weeks after Tyrael’s birth, Joseph inflicted blunt-force
¶33trauma to Tyrael’s head, causing severe and permanent brain
¶34damage. The injuries prevented Tyrael from learning how to walk
¶35and talk. He suffered frequent seizures and received food and
¶36medicine through a feeding tube. In April 2014, Joseph was
¶37convicted of aggravated battery for this abuse. While Joseph was
¶38incarcerated, White became Tyrael’s exclusive caretaker and
¶39expressed in a crime victim-impact statement before a court that
¶40Tyrael’s condition restricted her ability to travel and work because
¶41it “limited . . . what job locations [she could] go to.”
¶42 Around that time, White and Michael Schullerman began a
¶43romantic relationship. Within a few months, Schullerman moved
¶44into the same house as White and Tyrael in Austell. White and
¶45Schullerman shared the tasks involved in caring for Tyrael,
¶46including preparing and administering his medicines. Part of that
¶47process included grinding Tyrael’s pills before inserting them into
¶48his feeding tube.
¶49 3 1. Events Leading Up to Tyrael’s Death
¶50 (a) White’s 911 Call Pertaining to Her Own Health. On
¶51November 2, 2014, at 5:56 p.m., Schullerman called 911,
¶52complaining that White had a 103-degree fever and was having
¶53trouble breathing. Paramedics arrived at White’s home and at 6:12
¶54p.m. recorded White’s body temperature as 100 degrees. However,
¶55when White was transported to the emergency room, Dr. Nauman
¶56Rashid recorded White’s body temperature as 98.8 degrees. Dr.
¶57Rashid diagnosed White with a urinary tract infection (“UTI”) and
¶58prescribed “Tylenol 3” to White, one tablet of which contains 30
¶59milligrams of codeine.
¶60 At 11:22 a.m. on the day after White’s emergency room visit,
¶61Schullerman’s cell phone called White’s cell phone. Two minutes
¶62later, White, Schullerman, or one of White’s family members2
¶63retrieved White’s Tylenol 3 prescription from the pharmacy,
¶64 2 Evidence was presented that White, Schullerman, White’s daughter
¶65(Sierra Monroe), and White’s mother retrieved each other’s prescriptions from the family’s preferred pharmacy.
¶66 4 although the pharmacy did not have a record showing who retrieved
¶67it. 3 Whoever retrieved it, however, purported to sign White’s name
¶68to satisfy the pharmacy’s electronic-signature requirement.
¶69 (b) Tyrael’s Ongoing Medical Difficulties and Death. On
¶70November 5—three days after White’s UTI diagnosis—Dr. Joshua
¶71Chern implanted a nerve stimulator in Tyrael’s neck at Children’s
¶72Healthcare of Atlanta to lessen the frequency and mitigate the pain
¶73of Tyrael’s seizures. Dr. Chern discharged Tyrael from the hospital
¶74on the day of the procedure. Tyrael did not receive any codeine from
¶75Children’s Healthcare on November 5, although he was given liquid
¶76oxycodone to help with pain from the procedure.
¶77 On the evening of November 8, White asked her daughter,
¶78Sierra, and Sierra’s husband to babysit Tyrael while she and
¶79Schullerman went to a shooting range where White was a member.
¶80At trial, Sierra testified that, just after she arrived at White’s home
¶81at about 7:30 p.m., she saw Schullerman prepare and administer
¶82 3 Although White was prescribed Tylenol 3 for the UTI, the pharmacist’s
¶83testimony was unclear as to whether the prescription was filled with Tylenol 3 or Tylenol 4. One tablet of Tylenol 4 contains 60 milligrams of codeine. 5 Tyrael’s medicine while White was nearby. White encouraged
¶84Sierra to lie in bed with Tyrael while she and Schullerman were at
¶85the shooting range. White and Schullerman left their home that
¶86evening at approximately 8:00 p.m.
¶87 When they arrived at the shooting range, White and
¶88Schullerman purchased ammunition and targets. Schullerman
¶89later stated that he and White each shot approximately 50 rounds
¶90of ammunition that night. However, the shooting range owner
¶91testified that she had no record showing that White and
¶92Schullerman were placed in a firing lane that night, indicating that
¶93they did not fire any guns during their visit. Although it is unclear
¶94exactly what White and Schullerman did while they were at the
¶95shooting range, evidence showed that White called Sierra multiple
¶96times to ask if she had checked on Tyrael. White and Schullerman
¶97returned home at around 9:30 p.m. that evening and Sierra and her
¶98husband left at approximately 10:00 p.m.
¶99 At 10:44 p.m., White called 911, yelling that “[her] baby’s not
¶100breathing.” The operator asked, “[I]f I get somebody on the line that
¶101 6 can instruct you in CPR, do you think you could follow the
¶102directions?” White screamed “no” in response. During the 911 call,
¶103White left Tyrael with Schullerman, ran across the street to her
¶104mother’s house, and screamed, “Tyrael’s dead.” EMS arrived at
¶10510:49 p.m. Tyrael was pronounced dead at 11:24 p.m., after he had
¶106been transported to the hospital.
¶107 The medical examiner concluded that “codeine toxicity” caused
¶108Tyrael’s death, and she also reported a small amount of oxycodone
¶109in his blood consistent with the oxycodone dosages prescribed after
¶110Tyrael’s November 5 surgery. At trial, a pharmacokinetics expert
¶111testified that 55 or 56 milligrams of codeine—or two tablets of
¶112Tylenol 3—could induce respiratory arrest in a child of Tyrael’s size,
¶113with the peak effect of toxicity occurring between 1.5 and 4 hours
¶114after ingestion.
¶115 During the investigation into Tyrael’s death, Detective
¶116Christoper Payne asked White how codeine could have gotten into
¶117Tyrael’s body. White stated that she “didn’t know what codeine was
¶118until this all happened.” She also claimed that “I’ve never had it
¶119 7 prescribed to me” and that she had “no access to it.” “White also told
¶120Detective Payne that she had some form of codeine prescribed to her
¶121after Tyrael died, but she did not “have it filled” because she “just
¶122[did] not take that kind of stuff.” White did not recall going to the
¶123emergency room six days earlier on November 2 and receiving a
¶124prescription for Tylenol 3 until Detective Payne specifically asked
¶125about it. White added that she “did not have [that Tylenol 3
¶126prescription] filled.” And when Detective Payne asked White if the
¶127signature provided to retrieve that Tylenol 3 prescription was hers,
¶128she—at various times—said that she remembered signing for it and
¶129did not remember signing for it.
¶130 2. White’s Trial
¶131 The State ultimately charged White and Schullerman with
¶132Tyrael’s murder, among other crimes. At trial, the State contended
¶133that White and Schullerman poisoned Tyrael with Tylenol 3,
¶134alleging that White feigned a UTI and obtained a Tylenol 3
¶135prescription under false pretense. To support that contention, Dr.
¶136Rashid testified that a person’s body temperature could “not likely”
¶137 8 drop 3 degrees in 16 minutes—the period between Schullerman’s
¶138911 call and the EMT recording of White’s temperature—“[w]ithout
¶139intervention” and “probably [could] not” decrease from 103 to 98.8
¶140degrees between the time Schullerman reported White’s
¶141temperature to the 911 operator and Dr. Rashid’s recording of her
¶142temperature at the emergency room. The State further argued that
¶143White was motivated to murder Tyrael because she no longer
¶144wanted to be encumbered by him—financially, or with respect to the
¶145around-the-clock nature of the care that was required for him. To
¶146support its theory of motive, the State introduced the following
¶147evidence.
¶148 (a) Credit-Card-Related Conduct. In August 2014—
¶149approximately 3 months before Tyrael died—White used Tyrael’s
¶150personal identifiers to activate a credit card and make transactions
¶151using that card. And in April 2015—approximately 6 months after
¶152Tyrael died—White used Tyrael’s personal identifying information
¶153to activate at least two more credit cards. White and Schullerman
¶154used those credit cards to attempt (in some instances) and complete
¶155 9 (in other instances) transactions with several vendors during April
¶156and May of 2015. 4
¶157 (b) Additional Evidence of Financial Crimes. In 2013, White
¶158secured a $50,000 life insurance policy on Tyrael’s life that she
¶159sought to redeem after he died. The State contended that White
¶160made material omissions about Tyrael’s medical condition in
¶161 4 Count 5 alleged that White and Schullerman committed the offense of
¶162identity fraud, OCGA § 16-9-121, for the “April[] 2014” activation, using Tyrael’s identifiers, of a Capital One Bank Mastercard ending in -6266. Count 16, overt act 3, incorporated Count 5. Count 16 alleged, in overt acts 35 and 36, that White and Schullerman presented the credit card ending in -6266 to make two purchases, but the card was declined. Count 7 alleged that White and Schullerman committed the offense of identity fraud, OCGA § 16-9-121, for the April 2015 activation, using Tyrael’s identifiers, of a Citibank card ending in -8773. Count 9 alleged that White and Schullerman committed the offense of financial-transaction card fraud, OCGA § 16-9-33 (a) (1) (C), by using the Citibank card ending in -8773 to purchase electronics at Best Buy. Count 16, overt acts 7 and 9, incorporated Counts 7 and 9, respectively. Count 8 alleged that White and Schullerman committed the offense of identity fraud, OCGA § 16-9-121, for the April 2015 activation, using Tyrael’s identifiers, of a Capital One Bank credit account ending in -2313. Counts 10 through 14 alleged that White and Schullerman committed the offense of financial-transaction card fraud, OCGA § 16-9-33 (a) (1) (C), for presenting the credit card ending in -2313 at vendors to make purchases. Count 16, overt acts 6 and 8 through 12, incorporated Counts 8 and 10 through 14, respectively. Additionally, Count 16 alleged, in overt acts 32 through 34 and 37, that White and Schullerman presented the credit card ending in -2313 at vendors to make purchases, but the card was declined. Count 16 also alleged, as overt acts 26 through 29, that White and Schullerman applied for four other credit cards after Tyrael’s death using Tyrael’s identifiers, but their applications were declined. 10 applying for that policy, and alleged in the indictment—and
¶163contended at trial—that obtaining this policy was an overt act in
¶164furtherance of White and Schullerman’s scheme to financially
¶165exploit Tyrael in death.
¶166 In March 2013, White submitted a grant application to the
¶167Brain and Spinal Injury Trust Fund Commission, which provides
¶168grants to Georgians who have suffered traumatic brain and spinal
¶169cord injuries, in which she falsely represented her total monthly
¶170income. Additionally, in September 2014, White fabricated a letter
¶171from a former employer that misrepresented her salary to support
¶172her application for a $10,000 grant from an entity that supports
¶173crime victims and their caregivers.
¶174 Also, two days after Tyrael died in 2014, White made a request
¶175with the Social Security Administration (“SSA”) for Tyrael’s
¶176benefits, for which he was eligible only while living, to be directly
¶177deposited into a different bank account than the bank account they
¶178were deposited into before Tyrael died. However, the SSA did not
¶179terminate benefits until the State of Georgia notified it of Tyrael’s
¶180 11 death on May 20, 2015.
¶181 (c) Additional Evidence of Motive. The State presented
¶182evidence that White had told Sierra, “since [Sierra] was a child,”5
¶183that she would “smother” a “special-needs child” if she ever had one
¶184and then “blame it on a crib death.” And the State also presented
¶185evidence that, after White was arrested for Tyrael’s death, Judy
¶186Johnson, White’s pod-mate at the Cobb County adult detention
¶187center, testified that White told fellow inmates that Tyrael “was in
¶188the way of her relationship with her boyfriend,” “she couldn’t have a
¶189life because [Tyrael] needed around-the-clock care,” and that “she
¶190shouldn’t have had to put up with something [Tyrael’s] dad did to
¶191him. . . . [I]t was a burden” to her.6
¶192 5 Sierra was 21 years old at the time of White’s trial.
¶193 6 At trial, additional evidence of White’s statements during her time in
¶194custody was admitted into evidence. In particular, State’s Exhibit 18 contained audio recordings of phone calls White made to family members while she was in custody at the Cobb County adult detention center, and portions of those phone calls were played for the jury. State’s Exhibit 18 is not included in the record on appeal; however, neither party disputes its contents. We note that although the audio recordings contained in State’s Exhibit 18 are not contained in the record on appeal, the record does contain trial testimony from Sierra characterizing her memory of some of the conversations she had with
¶195 12 Additionally, the State contended that a reason White was
¶196motivated to financially exploit Tyrael was to support a “drug habit.”
¶197To help illustrate that theory, the State presented the testimony of
¶198a pharmacy technician who said that Schullerman presented her
¶199with a Xanax prescription purporting to be for White. Pharmacy
¶200records showed that the Xanax prescription was presented after
¶201Tyrael’s death in May 2015. The pharmacy technician recalled that
¶202the incident caused her concern because there was a discrepancy in
¶203the prescription’s formatting and Schullerman appeared to be
¶204“geeked out,” or suffering from withdrawals. The psychiatrist whose
¶205prescription pad page Schullerman presented to fill the prescription
¶206testified that he conducted one session with Schullerman in 2015.
¶207White while White was in custody at the Cobb County adult detention center. According to Sierra, White stated on a call to her that when White made calls from the detention center to Sierra using other inmates’ phone numbers, that is “when we talk about how [Schullerman] did it.” Sierra further testified that “it” referred to “the fraud,” although the State contested that characterization during Sierra’s cross-examination. Sierra also testified that she stated on a call with White that Sierra “[could not] remember if [Schullerman] pushed [the medicine] through,” although Sierra testified at trial that she was “positive” she saw Schullerman push medicine through Tyrael’s feeding tube on the night of his death. The record also contains testimony from Detective Payne regarding some of White’s recorded calls to family members from the detention center. 13 When asked if the Xanax prescription was one that he wrote, the
¶208psychiatrist explained that “there’s nothing about [the Xanax
¶209prescription] that fits . . . with what I would write,” but that
¶210Schullerman would have had an opportunity during the session to
¶211“rifle through [the psychiatrist’s] stuff” because the psychiatrist
¶212“was seeing two patients at the same time in two different rooms.”7
¶213Additionally, to support its contention that White had a “drug
¶214habit,” the State presented evidence that White told Detective
¶215Payne that she used cocaine.
¶216 White rejected the State’s theory of motive and presented
¶217alternative explanations for Tyrael’s death. On the one hand, White
¶218claimed she did not kill Tyrael by mistake or otherwise; she
¶219contended that Schullerman poisoned Tyrael with codeine. To
¶220support that contention, she argued that Schullerman retrieved the
¶221Tylenol 3 prescription from the pharmacy on November 3 and
¶222pointed to evidence that Schullerman misrepresented his
¶223 7 The State contended that the jury could infer from this evidence that
¶224Schullerman stole the psychiatrist’s prescription pad and later used it to fraudulently obtain Xanax. 14 whereabouts to Detective Payne. White also pointed to Sierra’s
¶225testimony that she saw Schullerman prepare and administer
¶226Tyrael’s medicine on the night he died.
¶227 Alternately, White argued that the medical examiner’s
¶228pronouncement that “codeine toxicity” caused Tyrael’s death was
¶229doubtful because the State’s toxicologist testified that there was only
¶230a “toxic”—and not a “fatal”—level of codeine in Tyrael’s blood. In
¶231support of that theory, White contended that Tyrael’s body had
¶232“wore out” because he was having seizures more frequently, and his
¶233white blood cell count was low. She also cited the medical
¶234examiner’s testimony that the medical examiner thought—before
¶235she received the toxicology results—that there was a “possibility”
¶236that Tyrael’s body might have “g[iven] up.”
¶237 2. White claims that the trial court abused its discretion by
¶238denying her motion for new trial on the “general grounds” set forth
¶239in OCGA §§ 5-5-20 and 5-5-21 as to the murder, felony murder, and
¶240aggravated battery counts (Counts 1 through 3). See Drennon v.
¶241State, 314 Ga. 854, 860 (880 SE2d 139) (2022) (“Even when the
¶242 15 evidence is legally sufficient to sustain a conviction, a trial judge
¶243may grant a new trial if the verdict of the jury is ‘contrary to . . . the
¶244principles of justice and equity,’ OCGA § 5-5-20, or if the verdict is
¶245‘decidedly and strongly against the weight of the evidence.’ OCGA §
¶2465-5-21.”) (citation and punctuation omitted). We disagree.
¶247 When these so-called “general grounds” are properly raised in a timely motion for new trial, the trial judge must exercise a broad discretion to sit as a ‘thirteenth juror.’ . . . [T]he merits of the trial court’s decision on the general grounds are not subject to our review, and the decision to grant a new trial on the general grounds is vested solely in the trial court.
¶248King v. State, 316 Ga. 611, 616 (889 SE2d 851) (2023) (citation and
¶249punctuation omitted). In denying White’s motion for new trial, the
¶250trial court expressly stated that it had “exercised its discretion,
¶251weighed the evidence, considered the credibility of witnesses, and
¶252determined as the ‘thirteenth juror’ that the verdict was not against
¶253the weight of the evidence, and did not offend the principles of justice
¶254and equity.” This claim therefore presents nothing for our review.8
¶255 8 White does not separately enumerate as error that the evidence for the
¶256murder, felony murder, and aggravated battery counts was insufficient under
¶257 16 King, 316 Ga. at 616.
¶258 3. White claims that the trial court abused its discretion by
¶259admitting five pre-incision autopsy photographs of Tyrael’s body
¶260because they were not relevant under OCGA § 24-4-401 (“Rule 401
¶261and unduly prejudicial under OCGA § 24-4-403 (“Rule 403”).
¶262White’s claim fails.
¶263 At trial, White disputed the medical examiner’s conclusion that
¶264codeine poisoning caused Tyrael’s death, contending that other
¶265factors could have contributed to his death, such as his traumatic
¶266brain injury. The State authenticated autopsy photographs,
¶267Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LEd2d 560) (1979). Although we have often reviewed the sufficiency of the evidence as a matter of constitutional due process when an appellant raises a general-grounds claim on appeal, see King, 316 Ga. at 616 n.8, many of us question that approach and would be open to reexamining it in a case where the issue is properly presented. See id. (“[M]any 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).”); see also Madera v. State, 318 Ga. 593, 595 n.2 (899 SE2d 132) (2024) (noting our unease with the practice of importing a Jackson analysis into an appellate review of the general grounds); Priester v. State, 317 Ga. 477, 484 n.13 (893 SE2d 751) (2023) (same); Johnson v. State, 316 Ga. 672, 682 n.4 (889 SE2d 914) (2023) (same). However, like in King, we need not determine the correctness of that practice today because the evidence against White was constitutionally sufficient to affirm her conviction as to the malice murder count; the felony murder count was vacated by operation of law; and the aggravated battery count merged into the malice murder count. 17 contending that the photographs were relevant to upcoming
¶268testimony. On voir dire, an investigator in the medical examiner’s
¶269office conceded that the photographs did not “identif[y] the cause of
¶270death of Tyrael McFall.” White’s counsel then objected, contending
¶271that that the photographs were “unnecessary and prejudicial.” The
¶272State responded that the medical examiner would use the
¶273photographs in her testimony to explain her investigation into
¶274Tyrael’s cause of death (and she later did). The trial court admitted
¶275the photographs over White’s objection. In its later order denying
¶276White’s motion for new trial, the trial court explained that the
¶277photographs “were relevant to the issue of [Tyrael’s] cause of death”
¶278under OCGA § 24-4-401 because they “had the tendency to make the
¶279existence of the fact that Tyrael died of codeine poisoning, and not
¶280from some other injury or abuse, such as smothering, more
¶281probable,” and that it had “weighed the probative value of the five
¶282photos and . . . determined that their value was not substantially
¶283outweighed by the danger of unfair prejudice” because “the photos
¶284were not gruesome or of the nature to inflame the jury.” On appeal,
¶285 18 White contends that the photographs were not relevant under Rule
¶286401 because they did not prove the cause of Tyrael’s death by
¶287“poisoning and not physical injury,” and that their probative value,
¶288if any, was substantially outweighed by the danger of unfair
¶289prejudice under Rule 403 because they were “graphic” and “shed no
¶290light on the internal cause of death.” (emphasis in original)
¶291 “[W]e generally evaluate the admissibility of autopsy
¶292photographs under OCGA §§ 24-4-401, 24-4-402, and 24-4-403.”
¶293Mitchell v. State, 307 Ga. 855, 863 (838 SE2d 847) (2020) (citation
¶294and punctuation omitted).9 Important here, “[a]utopsy photographs
¶295may be relevant and probative to show the nature and location of a
¶296victim’s injuries, even if the cause of death is not disputed.” Allen v.
¶297 9 Rule 401 defines “relevant evidence” as “evidence having any tendency
¶298to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402 provides that “[a]ll relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.” And under Rule 403, “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 19 State, 307 Ga. 707, 710 (838 SE2d 301) (2020). “We review a trial
¶299court’s evidentiary rulings under an abuse of discretion standard of
¶300review.” Williams v. State, 302 Ga. 474, 478 (807 SE2d 350) (2017)
¶301(punctuation and citation omitted).
¶302 Here, the trial court did not abuse its discretion in concluding
¶303that the autopsy photographs were relevant under Rule 401. At
¶304trial, White contested Tyrael’s cause of death by arguing that other
¶305trauma Tyrael experienced—such as the “traumatic brain injury”
¶306his father inflicted on him, and not codeine poisoning—caused his
¶307death. The record shows that the State addressed White’s argument
¶308in part with testimony from the medical examiner, who used the
¶309autopsy photographs to explain that her investigation into Tyrael’s
¶310cause of death included determining if trauma that could be
¶311observed on an external examination contributed to his death. And
¶312the medical examiner concluded that the minor external injuries she
¶313identified as part of the autopsy—and which she was able to point
¶314out to the jury in the photographs—did not contribute to Tyrael’s
¶315death. Because the photographs helped the medical examiner
¶316 20 explain her investigation into Tyrael’s cause of death, they made
¶317“the existence” of external injuries as the cause of Tyrael’s death
¶318“less probable than it would be without the evidence.” See Johnson,
¶319316 Ga. at 683 (holding that the trial court did not abuse its
¶320discretion in admitting five autopsy photographs because they
¶321“assisted the medical examiner in describing the nature and severity
¶322of [the victim’s] injuries” and “were highly relevant to the issues of
¶323both how and when the injuries were sustained”).
¶324 Additionally, White has not established that the trial court
¶325abused its discretion in concluding that the probative value of the
¶326photographs was not substantially outweighed by the danger of
¶327unfair prejudice under Rule 403. White complains that the
¶328photographs were unfairly prejudicial because they were “graphic.”
¶329But the photographs were neither especially graphic nor gruesome;
¶330they did not depict autopsy incisions, and the medical examiner
¶331explained that the photographs illustrated only minor external
¶332trauma. See Pike v. State, 302 Ga. 795, 799 (809 SE2d 756) (2018)
¶333(explaining that the challenged autopsy photographs were
¶334 21 admissible under Rule 403 because they did “not depict the victim’s
¶335autopsy incisions, and they [were] not especially gory or gruesome
¶336in the context of autopsy photographs in a murder case” and that
¶337“they were relevant to show the nature and location of the victim’s
¶338injuries, which corroborated the State’s evidence of the
¶339circumstances of the killing”). And the probative value of the
¶340photographs was high because they helped the medical examiner
¶341explain how she ruled out other possible causes of death—such as
¶342trauma—instead of codeine poisoning. Therefore, the probative
¶343value of the photographs was not substantially outweighed by the
¶344danger of unfair prejudice, if any. See also Johnson, 316 Ga. at 683
¶345(“And although the [autopsy] photographs may have been graphic,
¶346we cannot say the trial court abused its discretion in concluding that
¶347their probative value was not substantially outweighed by the
¶348danger of unfair prejudice.”). We therefore cannot say that the trial
¶349court abused its discretion in admitting the autopsy photographs
¶350under Rule 403.
¶351 4. White also claims that the trial court abused its discretion
¶352 22 by denying her motion to sever Counts 5 and 7 through 16 from the
¶353other charges in the indictment. Prior to trial, White moved to sever
¶354Counts 5, 7, and 8 (identity fraud), Counts 9 through 14 (financial-
¶355transaction card fraud), Count 15 (second-degree forgery), and
¶356Count 16 (RICO) (collectively, the “financial counts”), from the
¶357remaining counts (the “murder counts”). At a pre-trial hearing,
¶358White contended that the strong evidence supporting the financial
¶359counts—which White’s trial counsel characterized as “all these bad
¶360things about Ms. White”—would unfairly prejudice her with respect
¶361to the murder counts. The State responded that each of the financial
¶362counts at issue and listed above was intrinsic to the RICO charge in
¶363Count 16 and to the murder counts because they provided a “basis
¶364for the defendant’s motive.” Without making specific findings, the
¶365trial court denied White’s motion from the bench.
¶366 “[A] defendant has a right to severance where the offenses are
¶367joined solely on the ground that they are of the same or similar
¶368character because of the great risk of prejudice from a joint
¶369disposition of unrelated charges.” Carson v. State, 308 Ga. 761, 764-
¶370 23 765 (843 SE2d 421) (2020) (citation and punctuation omitted).
¶371“However, where the joinder is based upon the same conduct or on a
¶372series of acts connected together or constituting parts of a single
¶373scheme or plan, severance lies within the sound discretion of the
¶374trial judge since the facts in each case are likely to be unique.” Price
¶375v. State, 316 Ga. 400, 404 (888 SE2d 469) (2023) (citation and
¶376punctuation omitted). “[M]ultiple offenses are not joined together
¶377‘solely because they are the same or similar character’ if evidence of
¶378one offense would be admissible at a separate trial for the other.”
¶379McCullum v. State, __ Ga. __, __ (899 SE2d 171, 184) (2024) (citation
¶380omitted). “Typically, a trial court does not abuse its discretion in
¶381denying a motion to sever where evidence of one charge would be
¶382admissible in the trial of the other and there is no evidence that the
¶383joinder confused or misled the jury.” Id (citation omitted).
¶384 (a) No Severance as of Right For Counts 5, 7 Through 14, and 16
¶385 To begin, White has not established that she had “an ‘absolute
¶386right’ to sever” Counts 5, 7 through 14, and 16 from Counts 1
¶387 24 through 4 and 6 because she has not shown that those “charges
¶388[were] joined solely because they [were] of the same or similar
¶389character.” McCullum, __ Ga. at __ (899 SE2d at 184) (citation
¶390omitted). As the State noted at the pre-trial hearing on White’s
¶391motion to sever, it expected the evidence supporting the financial
¶392counts to demonstrate White’s motive for murdering Tyrael. At
¶393trial, to prove the allegations in Count 5, 7 through 14, and 16, the
¶394State introduced documentary evidence obtained from White’s
¶395computer, email accounts, and credit card statements showing that
¶396several credit cards were activated using Tyrael’s identifying
¶397information and that those credit cards were used to conduct
¶398transactions and acquire property. The State showed that each of
¶399these crimes was completed in a 10-month period before and after
¶400Tyrael’s death and using the identity of her minor child. The State
¶401argued that this evidence demonstrated that greed was a motivating
¶402factor in White murdering Tyrael. Because the evidence of Counts
¶4035, 7 through 14, and 16 supported the State’s theory of motive—and
¶404were not joined “solely because they are of the same or similar
¶405 25 character”—White has not shown that she had an absolute right to
¶406sever. See Doleman v. State, 304 Ga. 740, 744-745 (822 SE2d 223)
¶407(2018) (explaining that “a defendant is not entitled to severance
¶408where a series of similar crimes ‘constituted parts of a single scheme
¶409or plan,’ even though acts occurred over a period of more than two
¶410weeks”) (citation and punctuation omitted).
¶411 (b) The Trial Court Did Not Abuse Its Discretion in Declining to Sever Counts 5, 7 Through 14, and 16
¶412 (i) Having concluded that severance of Counts 5, 7 through
¶41314, and 16 was not mandatory, we must evaluate whether the trial
¶414court nonetheless abused its discretion by denying White’s motion
¶415to sever. To begin, White has not pointed to any evidence, and we
¶416see none, that the joinder of Counts 5, 7 through 14, and 16
¶417“confused or misled the jury.” McCullum, __ Ga. at __ (899 SE2d at
¶418184). To the contrary, the verdicts show that the jury “understood
¶419the law and the evidence” specific to this case; for example, it
¶420reached the nuanced conclusion that two of the overt acts
¶421enumerated in Count 16 (RICO) did not constitute a pattern of
¶422 26 racketeering activity under OCGA § 16-14-3. See, e.g., Carson, 308
¶423Ga. at 765 (“There is no evidence in this case that the combined trial
¶424of the charges confused or misled the jury, and the verdict itself,
¶425including [the defendant’s] acquittal for [battery], shows that the
¶426jury fully understood the law and evidence.”).
¶427 As to whether evidence related to Counts 5, 7 through 14, and
¶42816 would have been admissible in the trial of Counts 1 through 4
¶429and 6, we cannot say that the trial court abused its discretion in
¶430concluding that the evidence was relevant, because the evidence lent
¶431support to the State’s theory that at least part of White’s motive to
¶432murder Tyrael was to financially exploit him. See OCGA § 24-4-401.
¶433To prove the allegations in Counts 5, 7 through 14, and 16, the State
¶434introduced documentary evidence obtained from White’s computer,
¶435email accounts, and credit card statements showing several credit
¶436cards were activated using Tyrael’s identifying information and that
¶437those credit cards were used to conduct transactions and acquire
¶438property. The State argued that each of these crimes was connected
¶439to the murder because almost all of them were completed in a 10-
¶440 27 month period before and after Tyrael’s death.10 And the State
¶441showed that White used Tyrael’s identity to perpetrate each of these
¶442crimes, thus enhancing the probative value of those crimes to the
¶443prosecution of Tyrael’s murder. The State also introduced evidence
¶444that White omitted material information regarding Tyrael’s medical
¶445condition on a life insurance application for a policy insuring
¶446Tyrael’s life; collected Tyrael’s Social Security benefit after he died,
¶447even though the benefit terminated upon Tyrael’s death;
¶448misrepresented her salary in an application to an entity that
¶449administers financial grants to crime victims and their caregivers,
¶450claiming that Tyrael was such a victim; and falsely represented her
¶451total monthly income in a grant application to the Brain and Spinal
¶452Injury Trust Fund Commission, seeking funds to pay for Tyrael’s
¶453transportation. In addition, the State introduced evidence at trial
¶454that White had stated that Tyrael “needed around-the-clock care”
¶455and “was a burden” to her, including because Tyrael’s physical
¶456 10 We note that some of the overt acts alleged in Count 16 (RICO) were
¶457not committed within this 10-month window. 28 condition “limited . . . what job locations [she could] go to”; this
¶458allowed the jury to infer that White perceived her financial position
¶459to be negatively affected by Tyrael’s ongoing medical needs. The
¶460State argued that the foregoing evidence demonstrated that greed
¶461was an important aspect of White’s motivation to murder Tyrael.
¶462And this evidence made the State’s financial motive argument “more
¶463probable . . . than it would [have been] without the evidence.” See
¶464OCGA § 24-4-401. The trial court therefore did not abuse its
¶465discretion in concluding that the evidence was relevant and
¶466probative. See id. See also, e.g., Jordan v. State, 313 Ga. 841, 845
¶467(874 SE2d 67) (2022) (“Though motive is not an essential element of
¶468any offense, evidence of motive is generally relevant in murder
¶469prosecutions.”).
¶470 As to whether the danger of unfair prejudice substantially
¶471outweighed the probative value of the evidence for Counts 5, 7
¶472through 14, and 16 in a trial on Counts 1 through 4 and 6, see OCGA
¶473§ 24-4-403, the trial court’s implicit conclusion that the danger of
¶474unfair prejudice did not substantially outweigh the probative value
¶475 29 of the evidence was not an abuse of discretion. Indeed, “the
¶476exclusion of evidence under Rule 403 is an extraordinary remedy
¶477which should be used only sparingly.” Olds v. State, 299 Ga. 65, 70
¶478(786 SE2d 633) (2016). As we noted above, the evidence the State
¶479offered in support of Counts 5, 7 through 14, and 16 was relevant
¶480and probative of the State’s financial-motive theory. And although
¶481we cannot say that the probative value was extremely high, 11 it was
¶482nonetheless probative: the State used the evidence from those
¶483counts to argue that White exploited Tyrael for financial gain in life,
¶484 11 Specifically, the State’s financial-motive theory appears to have suffered from a notable weakness: the State did not logically explain why Tyrael’s murder was necessary to continue White’s alleged fraud—especially considering that White was alleged to have committed extensive fraud against Tyrael and others before Tyrael’s death, and that Tyrael’s death terminated at least some sources of financial support such as Social Security benefits. In other words, it appears that the State did not explain how Tyrael prevented White from continuing the pattern of fraud that she allegedly engaged in long before Tyrael’s death—reasoning that would have been important to properly establish motive for his murder. See Harris v. State, 314 Ga. 238, 271-272 (875 SE2d 659) (2022) (examining the logical chain of reasoning of the State’s motive theory in determining the probative value of other acts offered to prove the appellant’s motive). But even if the State did not show how all of the financial crimes were directly connected to or dependent on Tyrael’s death, the financial crimes all showed that (at a minimum) White was strongly motivated by money and was willing to exploit her son for financial gain. And that, in turn, could support the State’s narrative that White killed Tyrael for money, too.
¶485 30 and then used his death to acquire even more money (such as life
¶486insurance proceeds), to obtain access to additional funds (through
¶487additional credit cards White fraudulently opened or attempted to
¶488open), and to more generally shed what at least one witness testified
¶489that White had characterized as the “burden” associated with caring
¶490for Tyrael.12 And the State had a real need to establish White’s
¶491motive, because White put motive at issue by denying that she killed
¶492Tyrael (even by mistake), and the evidence in the case involved a
¶493significant amount of circumstantial evidence. See Harris v. State,
¶494314 Ga. 238, 272 (875 SE2d 659) (2022); see also Armstrong v. State,
¶495310 Ga. 598, 603 (852 SE2d 824) (2020) (explaining that “the
¶496prosecutorial need for the other acts evidence showing gang
¶497membership was high” because, without it, it is unclear what motive
¶498[appellant] would have had to shoot [victim] in a crowded park”).
¶499 As to the “danger of unfair prejudice” and the “needless
¶500presentation of cumulative evidence,” see OCGA § 24-4-403, we
¶501 12 From this latter point, the jury would have been authorized to infer
¶502that any purported “burden” in caring for Tyrael would have included a financial burden, including for ongoing medical expenses. 31 acknowledge that the cumulative force of evidence supporting ten
¶503counts of financial crimes, including one count that lists dozens of
¶504overt acts, could have resulted in prejudice to White insofar as it
¶505depicted her as an unscrupulous person who repeatedly exploited
¶506the people around her—including her disabled son. And there is at
¶507least some chance that given the quantity and nature of these counts
¶508and the overt acts alleged in Count 16, the jury could have drawn
¶509the improper inference that if White committed financial crimes
¶510against her son, she also must have murdered him—which could
¶511pose a real possibility of unfair prejudice. See, e.g., Harris, 314 Ga.
¶512at 263 (“Rule 403’s term ‘unfair prejudice’ speaks to the capacity of
¶513some concededly relevant evidence to lure the factfinder into
¶514declaring guilt on an improper basis rather than on proof specific to
¶515the offense charged.”) (citation omitted).
¶516 But that does not seem likely, given the unique facts and
¶517circumstances of this case. Indeed, the potential risk of unfair
¶518prejudice did not “substantially outweigh[]” the probative value of
¶519the relevant evidence presented at trial. That is especially true given
¶520 32 that the nature of the crimes alleged in Counts 5, 7 through 14, and
¶52116 were financial offenses—as opposed to (for example) violent
¶522crimes that may have posed more of a concern for suggesting
¶523improper propensity to murder—and given the evidence presented
¶524about the sequence of events the night Tyrael died that pointed to
¶525White’s participation in Tyrael’s murder at least as a party to the
¶526crime. In particular, in addition to other circumstantial evidence of
¶527White’s involvement in Tyrael’s death noted above, Sierra’s
¶528testimony that she saw Schullerman administer Tyrael’s medicine
¶529at approximately 7:30 p.m. and evidence that White called 911 at
¶53010:44 p.m.—approximately 3 hours later—aligns with the
¶531pharmacokinetics expert’s testimony that the codeine’s peak toxic
¶532effect would have been between 1.5 and 4 hours after ingestion.
¶533That, in turn, would have allowed the jury to infer that Schullerman,
¶534White, or both, intentionally administered a fatal dose of Tylenol 3
¶535or 4 to Tyrael, left Tyrael with Sierra during a planned outing that
¶536evidence later suggested was a ruse, called Sierra a number of times
¶537to check on Tyrael’s status, and then returned home well after
¶538 33 Tyrael ingested the codeine but seemingly before his death. And the
¶539jury also heard evidence from which it could have inferred that
¶540White was not truthful during interviews with Detective Payne
¶541regarding her own alleged illness that led to her being prescribed
¶542Tylenol 3, which contained codeine, in the days before Tyrael’s
¶543death.
¶544 (ii) We acknowledge that at first glance, certain aspects of
¶545this case may make it appear similar to Harris v. State, 314 Ga. 238
¶546(875 SE2d 659) (2022), in which this Court reversed a defendant’s
¶547conviction for murdering his son based on the trial court’s failure to
¶548sever certain sex crimes and the State’s introduction of extensive,
¶549improper “evidence of [the defendant’s] sexual activities,” where the
¶550State argued that the evidence was admissible to show the
¶551defendant’s motive and intent (among other things). See Harris, 314
¶552Ga. at 282-283 (explaining that “[e]xtensive evidence that Appellant
¶553was a man who commits sex crimes against minors – admitted
¶554without any limitation – likely had a substantial “smear” effect that
¶555forced Appellant to proceed at an unfair disadvantage when trying
¶556 34 to defend himself against” a prosecution for the murder of his minor
¶557son, which we characterized as being “of an entirely different
¶558character”). But a closer examination of that case reveals a number
¶559of material differences.
¶560 To begin, much of the evidence at issue in Harris was of a more
¶561graphic and inflammatory nature than the evidence supporting the
¶562financial crimes charged here. In particular, significant amounts of
¶563evidence at issue in Harris included (among other things) vulgar
¶564sexual messages the defendant sent to minors; lurid photographs of
¶565the defendant’s sex organ that he sent to various women; and
¶566evidence that the defendant had hired prostitutes. Id. at 272-280.
¶567In conducting a Rule 403 balancing as to each of these categories of
¶568evidence, we described the probative value as “trivial,” “minimally
¶569probative,” and “essentially non-existent,” and characterized the
¶570unfair prejudice flowing from that evidence as “extremely high,”
¶571“quite high,” and “substantially greater” than the probative value,
¶572such that the evidence should have been excluded under Rule 403.
¶573See id. In this case, by contrast, the financial-crimes evidence at
¶574 35 issue is more closely related to the murder counts than the sexual
¶575misconduct evidence was related to the murder counts in Harris,
¶576and was therefore more probative. And, importantly, the evidence
¶577of financial crimes presented in this case was less provocative, and
¶578therefore less likely to inflame the jury, than the evidence at issue
¶579in Harris, which we concluded “was not relatively benign or merely
¶580cumulative.” Compare, e.g., Harris, 314 Ga. at 272-280, 284
¶581(cleaned up).
¶582 We also note that the harm posed by the erroneously-admitted
¶583evidence in Harris was clearer than the harm White claims here.
¶584That is so in part because of the inflammatory nature of much of the
¶585evidence at issue in Harris, and also because the “determination of
¶586[the defendant’s] intent was a close question,” which meant that the
¶587“high risk of prejudice from [] improperly admitted evidence might
¶588be offset only by the most compelling properly admitted evidence of
¶589guilt,” see id. at 284-285—but there, the evidence of intent presented
¶590at trial was largely circumstantial and was also conflicting. See id.;
¶591see also id. at 288-289 (“When the State’s properly admitted
¶592 36 evidence is not viewed only positively but rather is balanced against
¶593the evidence elicited by Appellant, the proof of Appellant’s guilt was
¶594not ‘overwhelming,’ ‘compelling, or even strong.’”). Here, by
¶595contrast, the State introduced more direct evidence of White’s
¶596intent, such as Judy Johnson’s testimony of White’s past statements
¶597to the effect that White “shouldn’t have had to put up with
¶598something [Tyrael’s] dad did to him” and that Tyrael was a “burden”
¶599to her.
¶600 Accordingly, we cannot say that the trial court would have
¶601abused its discretion under Rule 403 in admitting the evidence of
¶602Counts 5, 7 through 14, and 16 in a trial on Counts 1 through 4 and
¶6036. And given that conclusion, we cannot say that the trial court
¶604abused its discretion in denying White’s motion to sever. See, e.g.,
¶605McCullum, __ Ga. at __ (899 SE2d at 185) (holding that the trial
¶606court did not abuse its discretion in denying a motion to sever a
¶607count for the rape of one person from four other counts regarding the
¶608rape and murder of another person).
¶609 37 (c) It Is Highly Probable That the Trial Court’s Assumed Error in Failing to Sever Count 15 Did Not Contribute To the Verdicts
¶610 White also contends that the trial court abused its discretion
¶611in declining to sever Count 15, which alleged that White and
¶612Schullerman committed second-degree forgery in 2015 by
¶613fabricating a prescription from a psychiatrist for Xanax, from the
¶614murder counts. But even assuming (without deciding) that the trial
¶615court abused its discretion in denying White’s motion to sever Count
¶61615 from the murder counts, any such error was harmless because it
¶617is highly probable that the error did not contribute to the verdicts.
¶618Cf. Howell v. State, 307 Ga. 865, 875 (838 SE2d 839) (2020)
¶619(standard of appellate review for nonconstitutional harmless error).
¶620“In determining whether the error was harmless, we review the
¶621record de novo and weigh the evidence as we would expect
¶622reasonable jurors to have done so.” Jackson v. State, 306 Ga. 69, 80
¶623(829 SE2d 142) (2019) (citation and punctuation omitted).
¶624 At trial, the State contended that White’s conduct in helping
¶625Schullerman procure a forged Xanax prescription in 2015 tended to
¶626 38 show White’s use of illicit substances. But other evidence was
¶627presented from which the jury could have inferred that White used
¶628illicit substances, like cocaine, such that the evidence supporting
¶629Count 15 was to some extent cumulative of that other properly-
¶630admitted evidence. And even if the evidence related to Count 15 had
¶631been excluded, the jury still would have heard evidence of White’s
¶632financial motive to murder Tyrael—even apart from any alleged use
¶633of illicit substances: the alleged identity fraud and financial-
¶634transaction card fraud in Counts 5, 7 through 14, and 16, among
¶635other acts of fraud that White previously committed. As a result,
¶636the jury was aware—even without Count 15—that White committed
¶637other acts of fraud and that she may have used illicit substances.
¶638Under these circumstances, it is highly probable that the trial
¶639court’s assumed error in declining to sever Count 15 did not
¶640contribute to the verdicts. See, e.g., Kirby v. State, 304 Ga. 472, 481
¶641(819 SE2d 468) (2018) (“[T]he jury was already aware that
¶642[Appellant] had committed other violent crimes. And any prejudice
¶643from the evidence that he had committed two other sets of violent
¶644 39 crimes rather than one other set was easily offset by the other
¶645compelling evidence against Appellant[.]”); Hood v. State, 299 Ga.
¶64695, 105-106 (786 SE2d 648) (2016) (explaining that erroneous
¶647admission of defendant’s drug-dealing was harmless in part due to
¶648properly admitted evidence that defendant dealt similar drugs
¶649under other circumstances).
¶650 5. White claims that the trial court erred by denying her
¶651“Motion to Quash – General and Special Demurrers” regarding
¶652Count 16 of the indictment. As discussed above, the State alleged
¶653in Count 16 that White and Schullerman violated the Racketeer
¶654Influenced and Corrupt Organizations Act, OCGA § 16-14-4 (c), by
¶655engaging in a scheme that involved murdering Tyrael to obtain
¶656money and property. Before trial, White generally and specially
¶657demurred as to Count 16, and the trial court denied both. At trial,
¶658the jury found that White was guilty of Count 16, noting on the
¶659verdict form that White’s conduct for all but 2 of the 37 overt acts
¶660constituted a pattern of racketeering activity under OCGA § 16-14-
¶6613 (4) (A).
¶662 40 (a) General Demurrer. White contends that the trial court
¶663erred in denying her general demurrer because Count 16 failed to
¶664allege the elements of the offense and to “state the offense in the
¶665terms and language of [OCGA § 17-7-54] or so plainly that the
¶666nature of the offense charged may be easily understood by the jury.”
¶667OCGA § 17-7-54. The trial court did not err in concluding that Count
¶66816 of the indictment was sufficient to withstand White’s general
¶669demurrer.
¶670 “A general demurrer challenges the sufficiency of the
¶671substance of the indictment.” Green v. State, 292 Ga. 451, 451 (738
¶672SE2d 582) (2013) (citation and quotation omitted). Consequently,
¶673“[o]ur review of the trial court’s ruling does not turn on whether the
¶674indictment could have been made clearer or more definite, but most
¶675importantly whether it ‘contains the elements of the offense
¶676charged.’” State v. Mondor, 306 Ga. 338, 341 (830 SE2d 206) (2019)
¶677(citation omitted). But if an indictment “‘fails to allege all the
¶678essential elements of the crime or crimes charged,’ including the
¶679required mens rea, it violates due process, is void, and cannot
¶680 41 withstand a general demurrer.” Mondor, 306 Ga. at 341 (quoting
¶681Jackson v. State, 301 Ga. 137, 139-140 (800 SE2d 356) (2017)).
¶682“Indeed, we have before explained that [t]he true test of the
¶683sufficiency of an indictment to withstand a general demurrer is [i]f
¶684all the facts which the indictment charges can be admitted, and still
¶685the accused be innocent, the indictment is bad; but if, taking the
¶686facts alleged as premises, the guilt of the accused follows as a legal
¶687conclusion, the indictment is good.” Mondor, 306 Ga. at 341 (citation
¶688and punctuation omitted). We review a trial court’s ruling on a
¶689general demurrer de novo. See Budhani v. State, 306 Ga. 315, 319
¶690(830 SE2d 195) (2019).
¶691 Here, Count 16 charged White with violating OCGA § 16-14-4
¶692(c). The relevant subsections of OCGA § 16-14-4 provide:
¶693 (a) It shall be unlawful for any person, through a pattern of racketeering activity[13] or proceeds derived therefrom,
¶694 13 OCGA § 16-14-3 (4) defines “pattern of racketeering activity” as:
¶695 (A) Engaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents,
¶696 42 to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.
¶697(c) It shall be unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section. A person violates this subsection when:
¶698 (1) He or she together with one or more persons conspires to violate any of the provisions of subsection (a) or (b) of this Code section and any one or more of such persons commits any overt act to effect the object of the conspiracy; or
¶699 (2) He or she endeavors to violate any of the provisions of subsection (a) or (b) of this Code section and commits any overt act to effect the object of the endeavor.
¶700provided at least one of such acts occurred after July 1, 1980, and that the last of such acts occurred within four years, excluding any periods of imprisonment, after the commission of a prior act of racketeering activity; or (B) Engaging in any one or more acts of domestic terrorism as described in paragraph (2) of Code Section 16-11-220 or any criminal attempt, criminal solicitation, or criminal conspiracy related thereto. “‘Racketeering activity’ means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment under the laws of this state involving[:]” “[f]orgery in any degree in violation of Code Section 16-9-1;” “[i]llegal use of financial transaction cards in violation of Code Sections 16-9-31, 16-9-32, 16-9-33, and 16-9-34;” or “[i]dentity fraud in violation of Article 8 of Chapter 9 of this title[,]” among 40 other offenses. OCGA § 16-14-3 (5) (xvi), (xvii), and (xx). 43 OCGA § 16-14-4 (a), (c). Count 16 alleged that White and
¶701Schullerman “did unlawfully conspire to acquire . . . control of money
¶702and personal property through a pattern of racketeering as
¶703described in Part I-III [of the indictment] . . . and did commit at
¶704least one overt act in furtherance of said conspiracy.” See OCGA §
¶70516-14-4 (a), (c). The State characterized Part I as a “scheme
¶706summary” that explained how White and Schullerman “conspired
¶707and endeavored in a scheme” “to support their lifestyle, their drug
¶708habit, and to obtain a life free of the care of a disabled child,” and
¶709linked the alleged scheme to several alleged overt acts. Part II of
¶710the indictment alleged that White and Schullerman committed
¶711identity fraud against Tyrael, committed financial-transaction card
¶712fraud, and murdered Tyrael, and Part III of the indictment alleged
¶713that they did so in furtherance of the scheme alleged in Part I. See
¶714OCGA § 16-14-3 (5) (A) (xx) (providing that “racketeering activity”
¶715includes identity fraud); OCGA § 16-14-3 (5) (A) (xvii) (providing
¶716that “racketeering activity” includes “illegal use of financial
¶717transaction cards in violation of” OCGA § 16-9-33); OCGA § 16-14-3
¶718 44 (5) (A) (iv) (providing that “racketeering activity” includes malice
¶719murder). See also OCGA § 16-14-4 (c) (1). And Part III ties Parts I
¶720and II together by alleging that:
¶721 [t]he overt acts in concert with the scheme . . . constitute a conspiracy to engage in a pattern of racketeering activity in that they were committed in furtherance of one or more . . . schemes or transactions that had the same or similar intents, results, accomplices, victims or methods of commission or otherwise were interrelated by distinguishing characteristics.
¶722See OCGA § 16-14-3 (4) (A). In sum, Count 16 alleged that White
¶723and Schullerman committed 37 overt acts, including financial-
¶724transaction card fraud, identity fraud, and the murder of Tyrael, to
¶725further their scheme of “obtain[ing] money and property” with the
¶726object of “support[ing] their lifestyle, their drug habit, and . . .
¶727obtain[ing] a life free of the care of a disabled child.” Because White
¶728“cannot admit to the allegations” in Count 16 and “be innocent of the
¶729crime[] for which [s]he was charged,” the trial court did not err in
¶730denying White’s general demurrer.14 Budhani, 306 Ga. at 321
¶731 14 Indeed, if White admitted to committing, with Schullerman, any two
¶732or more of the overt acts alleged to further a scheme of “obtain[ing] money and
¶733 45 (affirming the denial of a general demurrer because the defendant
¶734could not “admit to the allegations in the indictment and be innocent
¶735of the crimes for which he was charged”).
¶736 (b) Special Demurrer. White also contends that the trial court
¶737erred in denying her special demurrer. A special demurrer
¶738“challenges the sufficiency of the form of the indictment.”
¶739Kimbrough v. State, 300 Ga. 878, 880 (799 SE2d 229) (2017) (citation
¶740and punctuation omitted). “By filing a special demurrer, the accused
¶741claims not that the charge in an indictment is fatally defective and
¶742incapable of supporting a conviction (as would be asserted by
¶743general demurrer), but rather that the charge is imperfect as to form
¶744or that the accused is entitled to more information.” Id. (citation
¶745and punctuation omitted). “[A]n indictment comports with
¶746constitutional due process and is sufficient to withstand a special
¶747demurrer if it contains the elements of the offense charged,
¶748sufficiently informs the defendant of what he must be prepared to
¶749property” with the object of “support[ing] their lifestyle, their drug habit, and . . . obtain[ing] a life free of the care of a disabled child”—the allegations contained in Count 16—she would be guilty of violating OCGA § 16-14-4 (c). 46 defend against, and in the event of another prosecution for the same
¶750offense, enables the defendant to determine accurately whether he
¶751may plead a former conviction or acquittal.” Smith v. State, 303 Ga.
¶752643, 647 (814 SE2d 411) (2018). “We review a ruling on a special
¶753demurrer de novo to determine the legal sufficiency of the
¶754allegations in the indictment.” Hinkson v. State, 310 Ga. 388, 392
¶755(850 SE2d 41) (2020) (citation and punctuation omitted).
¶756 White contends that Count 16 should have been quashed based
¶757on a special demurrer because Part III of Count 16 did not allege (1)
¶758whether the alleged RICO activity was committed in furtherance of
¶759an incident, scheme, or transaction; and (2) of which alleged factual
¶760incident, scheme, or transaction the alleged racketeering activity is
¶761alleged to be in furtherance. See OCGA § 16-14-3 (4). However, the
¶762text of Count 16 belies White’s arguments because Part I of that
¶763Count—titled “Scheme Summary”—begins by alleging that White
¶764and Schullerman “conspired and endeavored in a scheme to obtain
¶765money and property.” It then goes on to describe, in detail, the
¶766conduct that furthered the alleged scheme, including White and
¶767 47 Schullerman’s procurement of “Tylenol with codeine” to murder
¶768Tyrael and use of Tyrael’s identity to activate “lines of credit” to pay
¶769for “food, travel, pay pal services, electronics, and other household
¶770items.” And it ends by previewing “Part II – The Overt Acts,”
¶771alleging that after White and Schullerman murdered Tyrael, they
¶772“continued their scheme to get money and property by financially
¶773exploiting Tyrael in death . . . as enumerated in the overt acts
¶774below.” Part II then enumerates and describes the 37 overt acts that
¶775the State alleged White and Schullerman committed in furtherance
¶776of their criminal scheme. Count 16 thus alleged facts identifying the
¶777co-conspirator and the overt acts of racketeering activity that were
¶778alleged to “further[]” a “scheme” that “affect[ed] the object of the
¶779conspiracy.” OCGA §§ 16-14-3 (4) (A), 16-14-4 (c) (1). Compare
¶780Kimbrough, 300 Ga. at 882 (explaining that an indictment count
¶781alleging a violation of OCGA § 16-14-4 could not survive a special
¶782demurrer because “the indictment fail[ed] to set forth any facts to
¶783show a connection between the enterprise and the racketeering
¶784activity, and the nature of that connection [was] not apparent from
¶785 48 the identification of the enterprise, the general description of the
¶786racketeering activity in [the count], or the subsequent counts
¶787charging more particularly the predicate acts of racketeering).
¶788Accordingly, White’s arguments fail.
¶789 (c) Other Challenges to Count 16 of the Indictment. White also
¶790asserts that Parts I and II of Count 16 contained “improper
¶791comments” on her character “in innuendo” that denied her “a fair
¶792trial and due process as protected by the Fifth, Sixth and Fourteenth
¶793Amendment[s] to the United States Constitution,” “Art. I, Sec. I,
¶794Paragraphs I and II of the Georgia Constitution,” and “OCGA § 24-
¶7954-404 as to the character of the accused.” 15 White elaborates by
¶796contending that the statements at issue “read[] like a closing
¶797argument or opening statement and should not have been submitted
¶798to the jury” because they were of the nature of “a continuing witness
¶799 15 Article I, Section I, Paragraph 1 of the Georgia Constitution of 1983
¶800provides: “No person shall be deprived of life, liberty, or property except by due process of law.” Article I, Section I, Paragraph 2 of the Georgia Constitution of 1983 provides: “Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.” 49 or continuing argument . . . taken into the jury room.” Among
¶801others, White points to the following references as “prejudicial”:
¶802“their lifestyle, drug habit and to obtain a life free of the care of a
¶803disabled child;” “meeting co-defendant Schullerman through an
¶804online dating service;” “the two residing together;” and “being
¶805‘engaged in a scheme to defraud banks and commercial providers . .
¶806. through misappropriation of Tyrael’s identifying information.’”
¶807 At trial, White raised these arguments in a filing titled “Motion
¶808to Quash – General and Special Demurrers” and raises them on
¶809appeal through that lens. We thus review these arguments about
¶810specific allegations contained in Count 16 as part of White’s
¶811complaint about the denial of her special demurrer.
¶812 White has not shown that the trial court erred in denying her
¶813special demurrer based on her arguments about “improper
¶814comments” on her character. To begin, “an indictment is not
¶815evidence,” Cash v. State, 297 Ga. 859, 863 n.4 (778 SE2d 785) (2015),
¶816and the trial court instructed the jury on that point. Moreover, the
¶817language of Count 16 accurately described the alleged racketeering
¶818 50 scheme charged by explaining in Part I what the scheme was and
¶819then setting forth the 37 alleged overt acts that White and
¶820Schullerman allegedly committed to further that scheme. See, e.g.,
¶821Malloy v. State, 293 Ga. 350, 360 (744 SE2d 778) (2013) (holding
¶822that an indictment with an “extensive ‘background’ section” that the
¶823appellant contended contained “politically charged, misleading, and
¶824prejudicial surplusage likely to diminish the presumption of
¶825innocence to which he is entitled and [was] prejudicial and
¶826redundant” survived a special demurrer because “the challenged
¶827language accurately described the offenses charged and made the
¶828charges more easily understood” and that “mere surplusage does not
¶829vitiate an otherwise valid indictment”). Accordingly, White has not
¶830shown that the trial court erred in denying her special demurrer on
¶831these bases.
¶832 6. White also contends that trial counsel provided
¶833constitutionally ineffective assistance by failing to (a) adequately
¶834investigate White’s case; (b) request a jury instruction on
¶835involuntary manslaughter; (c) object to the virtual testimony of a
¶836 51 witness who testified at trial; (d) subpoena and call Schullerman as
¶837a witness; and (e) call a handwriting expert to testify at trial. For
¶838the following reasons, all of White’s ineffective assistance of counsel
¶839claims fail.
¶840 “To prevail on a claim of ineffective assistance of counsel, a
¶841defendant generally must show that counsel’s performance was
¶842deficient and that the deficient performance resulted in prejudice to
¶843the defendant.” Perkins v. State, 313 Ga. 885, 901 (873 SE2d 185)
¶844(2022) (citing Strickland v. Washington, 466 U.S. 668, 687-695 (104
¶845SCt 2052, 80 LE2d 674) (1984)). “To satisfy the deficiency prong, a
¶846defendant must demonstrate that his attorney ‘performed at trial in
¶847an objectively unreasonable way considering all the circumstances
¶848and in the light of prevailing professional norms.’” Perkins, 313 Ga.
¶849at 901 (citation omitted). This showing requires a defendant to
¶850overcome the “‘strong presumption’” that trial counsel’s performance
¶851was adequate. Id. (citation omitted). A defendant attempting to
¶852carry his burden must show that “no reasonable lawyer would have
¶853done what her lawyer did or would have failed to do what her lawyer
¶854 52 did not.” Lopez v. State, __ Ga. __, __ (898 SE2d 441, 446) (2024).
¶855 “To satisfy the prejudice prong, a defendant must establish a
¶856reasonable probability that, in the absence of counsel’s deficient
¶857performance, the result of the trial would have been different.”
¶858Perkins, 313 Ga. at 901. “A reasonable probability is a probability
¶859sufficient to undermine confidence in the outcome.” Sullivan v.
¶860State, 308 Ga. 508, 510 (842 SE2d 5) (2020) (quoting Strickland, 466
¶861U.S. at 694). “This burden is a heavy one.” Young v. State, 305 Ga.
¶86292, 97 (823 SE2d 774) (2019).
¶863 “Ineffectiveness claims involve mixed questions of law and fact,
¶864and ‘a trial court’s factual findings made in the course of deciding an
¶865ineffective assistance of counsel claim will be affirmed by the
¶866reviewing court unless clearly erroneous,’ whereas conclusions of
¶867law based on those facts are reviewed de novo.” Sullivan, 308 Ga.
¶868at 510-511 (citation omitted). “If an appellant fails to meet his or
¶869her burden of proving either prong of the Strickland test, the
¶870reviewing court does not have to examine the other prong.” Id.
¶871(citation and punctuation omitted).
¶872 53 (a) White contends that trial counsel rendered ineffective
¶873assistance on the grounds that he did not interview Schullerman
¶874after his guilty-plea hearing and before White’s trial, and also did
¶875not subpoena and call Schullerman as a witness at trial. White
¶876contends that Schullerman may have possessed exculpatory
¶877evidence and that trial counsel never interviewed Schullerman to
¶878ascertain whether that was so. Trial counsel testified at the motion-
¶879for-new-trial hearing that he asked Schullerman’s counsel if he
¶880could interview Schullerman, but counsel refused the request.
¶881Schullerman’s counsel also testified at the motion-for-new-trial
¶882hearing and explained that her response to White’s counsel’s request
¶883to interview Schullerman was a “hard no.” Trial counsel offered
¶884ample reasoning at the motion-for-new-trial hearing for declining to
¶885call Schullerman as a witness: Schullerman’s counsel did not permit
¶886trial counsel to interview him before trial, and he therefore could not
¶887reasonably estimate what Schullerman’s testimony would be; he
¶888thought Schullerman—who pled guilty to the financial counts in the
¶889indictment—would be an unhelpful witness, with the State using
¶890 54 Schullerman’s testimony to emphasize White’s participation in the
¶891financial crimes; and Schullerman could have contradicted trial
¶892counsel’s theory, and Sierra’s testimony, that Schullerman—and not
¶893White—prepared and administered the fatal dose of codeine to
¶894Tyrael.
¶895 White has not established that trial counsel’s failure to
¶896interview Schullerman constituted deficient performance. Indeed,
¶897we have in other cases concluded that trial counsel did not perform
¶898deficiently when he attempted to interview a potential witness and
¶899the potential witness refused trial counsel’s request. See Atkinson
¶900v. State, 301 Ga. 518, 527 (801 SE2d 833) (2017) (explaining that the
¶901appellant failed to show trial counsel performed deficiently where
¶902“trial counsel did in fact attempt to interview [two witnesses], but
¶903they refused to speak with her”). And that is what happened here.
¶904Trial counsel requested an interview with Schullerman before
¶905White’s trial, but Schullerman’s counsel responded with a “hard no.”
¶906Under these circumstances, White has not shown that trial counsel’s
¶907strategic decision for declining to call Schullerman as a witness was
¶908 55 “so unreasonable that no competent attorney would have made [it]
¶909under similar circumstances.” McDuffie v. State, 298 Ga. 112, 116
¶910(779 SE2d 620) (2015) (holding that the appellant failed to
¶911demonstrate that trial counsel’s “strategic decision not to call” a
¶912potential witness was “entirely unreasonable” where trial counsel
¶913thought that the potential witness would be “more harmful than
¶914helpful”) (citation and punctuation omitted). See also, e.g., Miller v.
¶915State, 293 Ga. 638, 639-640 (748 SE2d 893) (2013) (concluding that
¶916the appellant failed to show that trial counsel performed deficiently
¶917where appellant argued that trial counsel failed to “adequately
¶918investigate his claim” in part because “counsel tried to interview the
¶919State’s witnesses, but several of them refused”).
¶920 (b) White claims that trial counsel was ineffective because he
¶921did not request a jury instruction on involuntary manslaughter.
¶922There are two types of involuntary manslaughter under Georgia
¶923law, and the common element is that the accused “causes the death
¶924of another human being without any intention to do so.” OCGA
¶925§ 16-5-3.
¶926 56 Notably, however, White argued at trial that she “never
¶927claimed [Tyrael’s death] was a mistake.” and at the hearing on
¶928White’s motion for new trial, her counsel testified that she was
¶929“adamant” that she did not mistakenly administer Tylenol with
¶930codeine to Tyrael. Trial counsel further explained that he did not
¶931request an instruction on involuntary manslaughter because “[w]e
¶932[we]re denying that she did this at all. . . . To have a lesser or
¶933include[d] [charge] that somehow says that she did it would have to,
¶934in my mind at least, for the jury to consider it, there’s admission that
¶935you did the act, which caused the death of the child.” In denying
¶936White’s motion for new trial, the trial court found “that trial counsel,
¶937per his testimony, made a knowing and strategic decision to not
¶938request” a charge for involuntary manslaughter because “it did not
¶939comport with [White’s] defense strategy.”
¶940 Even assuming, without deciding, that the evidence presented
¶941at trial would have authorized an instruction on involuntary
¶942manslaughter, “trial counsel’s decision not to pursue [it] was not so
¶943unreasonable that no competent attorney would have made it under
¶944 57 the circumstances.” See, e.g., Lopez, __ Ga. at __ (898 SE2d at 447)
¶945(assuming without deciding that the evidence authorized an
¶946involuntary manslaughter instruction, trial counsel’s decision not to
¶947pursue that instruction was not deficient performance, because
¶948(among other reasons) “[t]rial counsel’s decision to pursue an all-or-
¶949nothing defense . . . was consistent with [the appellant’s] interview
¶950statements” and “was not patently unreasonable”). It is well settled
¶951that “‘[d]ecisions about which defenses to present and which jury
¶952charges to request are classic matters of trial strategy, and pursuit
¶953of an all-or-nothing defense is generally a permissible strategy.’”
¶954Gardner v. State, 310 Ga. 515, 519 (852 SE2d 574) (2020) (citation
¶955omitted). And the record supports the trial court’s finding that
¶956counsel believed an involuntary manslaughter instruction would
¶957have constituted an “admission that [White] did the act,” and
¶958therefore would have undermined White’s defense that “she did this
¶959at all.” Moreover, trial counsel’s testimony shows that he pursued
¶960an “all-or-nothing” defense, and that seeking an involuntary-
¶961manslaughter instruction would have been inconsistent with that
¶962 58 defense theory. See, e.g., Velasco v. State, 306 Ga. 888, 893 (834
¶963SE2d 21) (2019) (holding that trial counsel did not perform
¶964deficiently by failing to request a voluntary manslaughter
¶965instruction, because the appellant maintained during consultations
¶966with counsel and at trial that he acted in self-defense, a theory that
¶967is generally inconsistent with a claim of voluntary manslaughter).
¶968Under these circumstances, trial counsel’s decision not to request an
¶969involuntary manslaughter instruction did not “f[a]ll below a
¶970reasonable standard of attorney conduct.” Smith v. State, 301 Ga.
¶971348, 353-354 (801 SE2d 18) (2017) (rejecting appellant’s contention
¶972that trial counsel performed deficiently by failing to request an
¶973involuntary manslaughter instruction where his “‘whole focus’ was
¶974on a not guilty strategy,” explaining that an “‘all or nothing’ defense
¶975is a permissible trial strategy” where trial counsel desires “to avoid
¶976admitting even to any negligent, much less reckless, intent”).
¶977 (c) White contends that trial counsel was ineffective on the
¶978basis that he failed to object to a witness’s virtual testimony. Prior
¶979to trial, the State moved for the trial court to permit Judy Johnson,
¶980 59 who previously resided with White at the Cobb County Adult
¶981Detention Center prior to White’s trial, to testify at trial from
¶982Michigan using video-conference technology. At a pretrial hearing,
¶983the State asserted that Johnson needed to testify virtually because
¶984her physician ordered her not to travel from her home in Detroit
¶985because she was pregnant and a cesarean section procedure had
¶986already been scheduled for a time that coincided with White’s trial.
¶987Trial counsel responded that he was “not necessarily opposed to live
¶988testimony” via video conference “if that can be accomplished.” Trial
¶989counsel elaborated that “I would want to make sure—if we do this,
¶990there is some direct video as such that she absolutely has to face Ms.
¶991White. And Ms. White, of course, has the opportunity to confront
¶992her. So to that extent, I’m not opposed to taking testimony by video
¶993for health reasons but with some careful guarantees.” The State
¶994explained that its plan was to have Johnson testify via “direct live
¶995feed” from a Michigan courtroom. Trial counsel did not respond
¶996further.
¶997 At trial, Johnson testified via video-conference technology from
¶998 60 a courthouse in Michigan and White did not object to Johnson’s
¶999testimony being offered in this way. Johnson testified that she and
¶1000White previously lived in the same pod at the Cobb County adult
¶1001detention center, and that during that time, she heard White explain
¶1002to other inmates that the hospital gave Tyrael a fatal dose of codeine.
¶1003When some inmates voiced doubts about the plausibility of that
¶1004story, White began to sob, telling them that “she shouldn’t have had
¶1005to put up with something [Tyrael’s] dad did to him and it was a
¶1006burden to her.” Johnson also testified that White said Tyrael “was
¶1007in the way of her relationship with her boyfriend because she
¶1008couldn’t have a life because he needed around-the-clock care.”
¶1009White’s counsel was given the opportunity to cross-examine Johnson
¶1010and did so.
¶1011 At the motion-for-new-trial hearing, trial counsel explained
¶1012that he did not object to Johnson’s testimony being provided
¶1013virtually because, among other things, he did not want “to be the
¶1014cause of there being any harm to [Johnson’s] child based on her
¶1015coming to testify”; “[he] felt like her testimony was going to be
¶1016 61 ridiculous, and she would appear so preposterous that that might be
¶1017helpful to [White]”; and “[because] [s]he was virtual, [trial counsel
¶1018thought] maybe she would look even crazier doing something
¶1019wherever she was.”
¶1020 On appeal, White contends that Johnson’s virtual testimony
¶1021violated White’s Sixth Amendment right to confront Johnson, a
¶1022witness against her, see U.S. Const. Amend. VI, and that trial
¶1023counsel’s failure to object to it constituted deficient performance.
¶1024But trial counsel’s testimony illustrated how his decision not to
¶1025object to Johnson’s virtual testimony was a strategic one. In
¶1026particular, trial counsel did not object to Johnson’s virtual testimony
¶1027because he did not want to cause harm to Johnson, who was under
¶1028her physician’s orders not to travel from her home in Michigan
¶1029before the birth of her child, and counsel believed that the location
¶1030from which Johnson testified was of little import because he
¶1031anticipated that Johnson’s testimony might even be helpful to
¶1032White. Moreover, trial counsel rigorously cross-examined Johnson,
¶1033exposing possible inconsistencies in her testimony and questioning
¶1034 62 her credibility. Under these circumstances, White has not
¶1035demonstrated that trial counsel’s decision to not object was so
¶1036unreasonable that “no competent attorney, under similar
¶1037circumstances, would have made it.” Sullivan v. State, 301 Ga. 37,
¶103840 (799 SE2d 163) (2017) (explaining that trial counsel was not
¶1039deficient for failing to object to alleged “testimonial hearsay in
¶1040violation of [appellant’s] Sixth Amendment right to confrontation”
¶1041because it was a strategic decision) (citation and punctuation
¶1042omitted).
¶1043 (d) White contends that trial counsel was ineffective because
¶1044he failed to hire and call a handwriting expert to testify at trial to
¶1045cast doubt on the November 3, 2014 signature provided to retrieve
¶1046White’s Tylenol 3 prescription. The State presented evidence that
¶1047White, Schullerman, and White’s mother regularly picked up each
¶1048other’s prescriptions from a local pharmacy. White offered into
¶1049evidence other signatures that she contended were hers and the
¶1050signature purporting to be White’s on the November 3, 2014
¶1051prescription. Based on apparent discrepancies between the sample
¶1052 63 signatures White offered into evidence and the signature associated
¶1053with the Tylenol 3 prescription, White’s trial counsel contended in
¶1054closing argument that Schullerman—and not White—signed for the
¶1055November 3, 2014 Tylenol 3 prescription. The State then rebutted
¶1056that claim by presenting evidence that the November 3, 2014
¶1057signature was, in fact, White’s by pointing to Sierra’s earlier
¶1058identification of the signature as White’s.16 The State also presented
¶1059evidence that when Detective Payne asked White if she remembered
¶1060signing for the Tylenol 3 prescription, White said that she both
¶1061remembered signing for it and that she did not sign for it. In the
¶1062alternative, the State contended that, even if the signature were
¶1063Schullerman’s, White was aware that Schullerman signed White’s
¶1064name based on evidence indicating that Schullerman called White
¶1065just two minutes before he would have retrieved the Tylenol 3
¶1066prescription from the pharmacy.
¶1067 At the motion-for-new-trial hearing, White’s counsel procured
¶1068 16 At trial, Sierra denied the signature was White’s. However, when cross-examined by the State, she acknowledged that she previously told Detective Payne that the signature was White’s. 64 a forensic document-examination expert, who testified that the
¶1069signature provided to retrieve the Tylenol 3 prescription was
¶1070“inconsistent” with White’s other handwriting samples. However,
¶1071the expert could not rule out the possibility that it was White’s
¶1072signature.
¶1073 Pretermitting whether trial counsel performed deficiently by
¶1074failing to present the testimony of a handwriting expert at trial,
¶1075White “has not shown that there is a reasonable probability that the
¶1076expert’s testimony would have made a difference in h[er] trial.”
¶1077Parker v. State, 305 Ga. 136, 141 (823 SE2d 313) (2019). Even if
¶1078testimony from the motion-for-new-trial expert had been offered at
¶1079trial and the jury had credited it, that testimony at best established
¶1080inconsistency in the signatures; it did not establish that the
¶1081signature offered to retrieve the Tylenol 3 prescription could not be
¶1082White’s. Indeed, the motion-for-new-trial expert could not rule out
¶1083the possibility that the signature was, in fact, White’s. Moreover,
¶1084the jury heard testimony that Sierra had previously identified the
¶1085November 3, 2014 signature to be White’s and would be left to
¶1086 65 grapple with the same expert’s testimony that he could not rule out
¶1087the possibility that the signature was White’s. And in any event,
¶1088White has not shown that the expert’s testimony would have
¶1089undercut the State’s alternative theory, backed by evidence, that
¶1090White was engaged in a scheme with Schullerman to sign for and to
¶1091retrieve the Tylenol 3 prescription under the false pretense of a
¶1092urinary tract infection. For these reasons, White “has not shown a
¶1093reasonable probability that the result of [her] trial would have been
¶1094different had the expert witness testified at trial, [and she] has
¶1095failed to establish ineffective assistance.” Graves v. State, 306 Ga.
¶1096485, 489 (831 SE2d 747) (2019) (explaining that the appellant failed
¶1097to establish “[a] reasonable probability, that, but for his lawyer’s
¶1098unprofessional errors, the result of the proceeding would have been
¶1099different” where a purported expert’s testimony at the motion-for-
¶1100new-trial hearing failed to “rebut[] the substantial evidence of [the
¶1101appellant’s] guilt”) (citations omitted). See also Parker, 305 Ga. at
¶1102141 (holding that the appellant failed to show the requisite prejudice
¶1103to establish an ineffective assistance of counsel claim where an
¶1104 66 expert’s testimony at the motion-for-new-trial hearing contradicted
¶1105the State’s claim but where the appellant was unable to establish a
¶1106reasonable probability that the expert’s testimony would have made
¶1107a difference at trial).
¶1108 7. In her final enumeration of error, White claims that the
¶1109State committed a Brady violation and that this Court should vacate
¶1110White’s convictions and grant a new trial as a result. See Brady v.
¶1111Maryland, 373 U.S. 83 (83 SCt 1194, 10 LEd2d 215) (1963). For the
¶1112reasons explained below, White’s claim fails.
¶1113 At trial, Detective Payne testified that Schullerman stated in
¶1114an interview that he and White each shot approximately 50 rounds
¶1115of ammunition at the shooting range on the night Tyrael died. Based
¶1116on that statement, Schullerman and White were indicted for making
¶1117a false statement (Count 4) to which Schullerman pled guilty before
¶1118White’s trial. Count 4 stated in part:
¶1119 [O]n or about the 10th day of November, 2014, [Schullerman and White] did knowingly and willfully make a false statement to Detective Adam Payne . . . to wit: during an interview arising out of the investigation into the death of Tyrael McFall, Michael Schullerman did
¶1120 67 falsely state that he had fired a handgun at Governor’s Gun Club on the evening of November 8, 2014, when asked about his actions that evening.
¶1121As support for Count 4, the State presented evidence from the
¶1122shooting range’s owner showing that, although White and
¶1123Schullerman purchased ammunition and targets the evening that
¶1124Tyrael died, there was no record that they ever fired guns that
¶1125evening.
¶1126 At White’s motion-for-new-trial hearing, Schullerman’s trial
¶1127counsel testified that sometime after Schullerman’s guilty plea but
¶1128before White’s trial began, the State conducted an interview with
¶1129Schullerman that Schullerman’s lawyer also attended.
¶1130Schullerman’s lawyer testified that Schullerman maintained that
¶1131he and White shot guns at the shooting range on the night Tyrael
¶1132died, despite having pled guilty to Count 4. Schullerman’s trial
¶1133counsel further testified that she recalled having a conversation
¶1134with White’s trial counsel after White’s trial concluded where
¶1135Schullerman’s trial counsel explained that “what [Schullerman] had
¶1136said [in this interview] was different than what he pleaded guilty to”
¶1137 68 in Count 4. The State did not disclose Schullerman’s interview
¶1138statements to White before or during trial.
¶1139 When asked whether this information would have affected his
¶1140decision to call Schullerman as a witness at trial, White’s trial
¶1141counsel stated, “[h]ad I been provided information of what he had
¶1142given in that interview [with the State], that could have changed my
¶1143opinion.” White’s trial counsel also testified that “[h]ad I known
¶1144[what Schullerman said in the interview] during trial, I might have
¶1145[called Schullerman as a witness] if for no other reason than to bring
¶1146out the fact that he told the State something that they intentionally
¶1147brought evidence to the contrary? I don’t know if I would have done
¶1148that or not. I would have been much more tempted to do that. But
¶1149I – I didn’t do it.”
¶1150 To establish a Brady violation, White must show that:
¶1151 (1) the State, including any part of the prosecution team, possessed evidence favorable to the defendant; (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) a reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed
¶1152 69 to the defense.
¶1153Anthony v. State, 302 Ga. 546, 552 (807 SE2d 891) (2017) (citation
¶1154omitted). “On appeal, we review a trial court’s factual findings
¶1155regarding a Brady claim for clear error but review de novo the
¶1156court’s application of the law to the facts.” Downer v. State, 314 Ga.
¶1157617, 633 (878 SE2d 537) (2022). Pretermitting whether the first
¶1158three requirements are met here, White has failed to establish the
¶1159fourth: that “a reasonable probability exists that the outcome of the
¶1160trial would have been different had the evidence been disclosed.” Id.
¶1161(citation and punctuation omitted).
¶1162 White argues that the State’s failure to inform White of
¶1163Schullerman’s statement constitutes a Brady violation because the
¶1164statement was “potentially exculpatory” and the State’s failure to
¶1165disclose it rendered White’s trial “fundamentally unfair.” But “‘[t]he
¶1166mere possibility that an item of undisclosed information might have
¶1167helped the defense’” does not satisfy the fourth Brady factor. Upton
¶1168v. Parks, 284 Ga. 254, 256 (664 SE2d 196) (2008) (quoting United
¶1169States v. Agurs, 427 U.S. 97, 109-110 (96 SCt 2392, 49 LE2d 342)
¶1170 70 (1976)). Rather, White must show “[a] ‘reasonable probability’ of a
¶1171different result[, which] is one in which the suppressed evidence
¶1172undermines confidence in the outcome of the trial.” Turner v. United
¶1173States, 582 U.S. 313, 324 (137 SCt 1885, 198 LEd2d 443) (2017)
¶1174(citation and punctuation omitted). Here, Schullerman’s alleged
¶1175statement would not have contradicted the evidence presented at
¶1176trial that Schullerman told Detective Payne, on the night Tyrael
¶1177died, that he and White fired a handgun at the shooting range. The
¶1178alleged statement also would not undermine testimony from the
¶1179shooting range’s owner that the shooting range had no record of
¶1180Schullerman and White entering a firing lane on the night Tyrael
¶1181died. And it would not have undermined evidence that a fatal
¶1182codeine dose was administered before White and Schullerman left
¶1183their house to go to the shooting range. At most, Schullerman’s
¶1184alleged statement repeated evidence the jury already heard from
¶1185Detective Payne: that Schullerman said he and White fired a
¶1186handgun at the shooting range on the night Tyrael died. See Burney
¶1187v. State, 309 Ga. 273, 284 (845 SE2d 625) (2020) (rejecting Brady
¶1188 71 claim on the prejudice prong where the defendant “offer[ed] no
¶1189evidence that anything contained in the [alleged Brady material]
¶1190might have differed from the testimony about [that material] or
¶1191[other evidence] that was presented at trial”); Mitchell, 307 Ga. at
¶1192862-863 (explaining, on Brady’s prejudice prong, that the alleged
¶1193Brady material would have been “unlikely to change the outcome of
¶1194[the defendant’s] trial because the jury had already heard” the
¶1195alleged Brady material); Lewis v. State, 304 Ga. 813, 817 (822 SE2d
¶1196239) (2018) (rejecting the defendant’s Brady claim on the prejudice
¶1197prong where “nothing in the [alleged Brady material] call[ed] into
¶1198question the testimony” of other witnesses). Because White has
¶1199failed to establish a “reasonable probability” that Schullerman’s
¶1200statement would have “undermined confidence in the outcome of the
¶1201trial,” we conclude that the trial court did not err in denying White’s
¶1202motion for new trial on this basis. Turner, 582 U.S. at 324; see also
¶1203State v. Thomas, 311 Ga. 407, 417 (858 SE2d 52) (2021) (“A
¶1204reasonable probability of a different result is . . . shown when the
¶1205government’s evidentiary suppression undermines confidence in the
¶1206 72 outcome of the trial.”) (citation and punctuation omitted).17
¶1207 Judgment affirmed. All the Justices concur, except McMillian and LaGrua, JJ., who concur specially in Divisions 4 (a) and (b), and Colvin, J., who concurs in the judgment only in Division 4 (b) (ii).
¶1208 17 In our analysis of White’s claims, we have assumed one trial counsel
¶1209deficiency in failing to call a handwriting expert to testify at trial and one trial court error in denying White’s motion to sever Count 15, and pretermitted whether the State committed a Brady violation by failing to disclose Schullerman’s post-plea statement. White has not argued that we should apply a cumulative-error review. Even assuming that the assumed evidentiary error, the assumed deficiency of trial counsel, and the pretermitted Brady violation are the sorts of errors that could be assessed cumulatively, we conclude that any such cumulative error did not likely affect the outcome of the trial. See Haufler v. State, 315 Ga. 712, 722 n.14 (884 SE2d 310) (2023) (conducting a cumulative-error review even though the appellant did not invite the Court do so and stating that “even assuming that these presumed errors should be considered cumulatively, we conclude that [the appellant] has failed to establish that the combined prejudicial effect of these errors requires a new trial”) (citation and punctuation omitted). 73 PETERSON, Presiding Justice, concurring.
¶1210 I join the majority opinion in full. I write separately to respond
¶1211briefly to Justice McMillian’s special concurrence. I generally agree
¶1212with her assessment of Georgia’s RICO statute. But I agree with the
¶1213majority’s approach in not relying on that statutory law; over-
¶1214aggressive use of the RICO statute could pose potential
¶1215constitutional problems in a case like this one.
¶1216 Georgia evidence law contains several provisions that, among
¶1217other things, limit the admission of other crimes in criminal
¶1218prosecutions. One reason for this is that when a jury is informed
¶1219that the criminal defendant in front of them did other bad things,
¶1220jurors (like all human beings) are naturally more inclined to think
¶1221the defendant did the separate bad thing at issue in the prosecution.
¶1222We often call this inference “propensity,” and label the State’s effort
¶1223to introduce evidence for propensity “improper” and
¶1224“impermissible.” See Morrell v. State, 313 Ga. 247, 258 (2) (a) (869
¶1225SE2d 447) (2022). And the fact that propensity inferences are
¶1226natural only increases the risk that they undermine an accused’s
¶1227 74 constitutional right to be presumed innocent until proven guilty. See
¶1228Michelson v. United States, 335 U.S. 469, 475-476 (69 SCt 213, 93
¶1229LE 168) (1948) (“[Evidence of the defendant’s bad character to
¶1230establish a probability of his guilt] is not rejected because character
¶1231is irrelevant; on the contrary, it is said to weigh too much with the
¶1232jury and to so overpersuade them as to prejudge one with a bad
¶1233general record and deny him a fair opportunity to defend against a
¶1234particular charge.”); see also Old Chief v. United States, 519 U.S.
¶1235172, 182 (117 SCt 644, 136 LE2d 574) (1997) (“There is . . . no
¶1236question that propensity would be an improper basis for
¶1237conviction[.]” (punctuation omitted)).
¶1238 Georgia’s RICO statute is very broad; it allows the State to
¶1239bring in evidence of all sorts of other crimes during a RICO
¶1240prosecution. That’s of necessity; the statute was designed to combat
¶1241“the increasing sophistication of various criminal elements,” OCGA
¶1242§ 16-14-2 (a), and the kind of sophisticated conspiracies it was
¶1243designed to reach are not susceptible to easy categorization. But the
¶1244State seems increasingly to use that breadth in cases that do not
¶1245 75 resemble paradigmatic RICO conspiracies; for example, this case
¶1246involves “racketeering activity” between a girlfriend and boyfriend
¶1247who bear no resemblance whatsoever to sophisticated criminal
¶1248enterprises. And the more aggressively the State uses RICO’s
¶1249breadth, the more concern arises about conflict between the RICO
¶1250statute and the accused’s constitutional right to a fair trial. The
¶1251majority’s approach wisely avoids having to grapple with such a
¶1252challenging and consequential question.
¶1253 I am authorized to state that Justice Warren joins in this
¶1254concurrence.
¶1255 76 MCMILLIAN, Justice, concurring specially in part.
¶1256 In Division 4, the Court engages in an extensive analysis as to
¶1257whether the trial court should have severed what the Court defines
¶1258as the “murder counts” from the “financial counts,” ultimately
¶1259concluding that the trial court did not abuse its discretion in
¶1260refusing to sever because evidence of the “financial counts” was
¶1261relevant and probative to the State’s theory that those crimes served
¶1262as a motive for the murder and that evidence of the “financial
¶1263counts” was not unduly prejudicial. In conducting this analysis, the
¶1264Court inexplicably does not recognize that the RICO count, which
¶1265the Court considers a “financial count,” incorporates by reference the
¶1266malice murder count as well as some of the other “murder counts”
¶1267as overt acts committed in furtherance of the RICO conspiracy.
¶1268Because the crimes, as alleged, are intertwined, I conclude that the
¶1269trial court did not abuse its discretion in refusing to sever and see
¶1270no need to conduct the analysis engaged in by the Court.
¶1271 Time and again, we have stated that where offenses are joined
¶1272in a single indictment and the “joinder is based upon . . . a series of
¶1273 77 acts connected together or constituting parts of a single scheme or
¶1274plan, severance lies within the sound discretion of the trial judge
¶1275since the facts in each case are likely to be unique.” Price v. State,
¶1276316 Ga. 400, 404 (2) (888 SE2d 469) (2023) (emphasis supplied;
¶1277citation and punctuation omitted). See Rodriguez v. State, 309 Ga.
¶1278542, 547 (2) (847 SE2d 303) (2020); Carson v. State, 308 Ga. 761,
¶1279764-65 (2) (a) (843 SE2d 421) (2020); Simmons v. State, 282 Ga. 183,
¶1280185 (4) (646 SE2d 55) (2007).
¶1281 Here, White moved to sever Counts 1 (malice murder), 2 (felony
¶1282murder), 3 (aggravated battery), 4 (making a false statement that
¶1283Schullerman had fired a handgun at the gun club on the evening of
¶1284the murder) and 6 (making a false statement by denying that White
¶1285had received a prescription of codeine) from the remaining counts.
¶1286Count 16 alleged a RICO scheme which was summarized as follows
¶1287in the indictment:
¶1288 In order to support their lifestyle, their drug habit, and to obtain a life free of the care of a disabled child, Erica Claudette White (“White”), along with her boyfriend, co-defendant Michael Robert Schullerman (“Schullerman”), conspired and endeavored in a scheme
¶1289 78 to obtain money and property through the overt acts below and by subsequently poisoning Tyrael McFall (“Tyrael”) to death through codeine toxicity.
¶1290The RICO count then alleged 37 overt acts committed in furtherance
¶1291of the conspiracy, including malice murder as alleged in Count 1,
¶1292making a false statement as alleged in Count 4, and making a false
¶1293statement as alleged in Count 6. The allegations from those counts
¶1294were explicitly incorporated by reference into the RICO count. Thus,
¶1295it is clear that some of the counts that White sought to be severed,
¶1296including the malice murder count, are alleged to be part of a larger
¶1297RICO conspiracy.
¶1298 In such a case, we assess whether “in view of the number of
¶1299offenses charged and the complexity of the evidence to be offered,
¶1300the trier of fact will be able to distinguish the evidence and apply
¶1301the law intelligently as to each offense.” Price, 316 Ga. at 404 (2)
¶1302(citation and punctation omitted). See Rodriguez, 309 Ga. at 547 (2);
¶1303Carson, 308 Ga. at 765 (2) (a). The trier of fact was able to do that
¶1304here, and White has not pointed to any evidence showing that the
¶1305jury was misled or confused.
¶1306 79 Thus, I conclude that the trial court acted well within its sound
¶1307discretion in refusing to sever and do not find it necessary to parse
¶1308whether the “financial counts” also supported White’s motive for the
¶1309murder.18 See Rodriguez, 309 Ga. at 542 n.1, 547-48 (2) (finding no
¶1310abuse of discretion in trial court’s denial of motion to sever
¶1311defendant’s drug trafficking and gang activity counts from counts of
¶1312murder, because the drug charges were “inextricably bound” to the
¶1313murder charges, there was no evidence that the combined trial of
¶1314the charges “confused or misled the jury,” and the verdict itself,
¶1315including acquittal on various counts, showed that the jury “fully
¶1316understood the law and evidence” (citation and punctuation
¶1317omitted)); Carson, 308 Ga. at 765-66 (2) (a) (finding no abuse of
¶1318discretion in trial court’s refusal to sever charges stemming from
¶1319course of continuing conduct where no evidence showed that the
¶1320 18 The Court also expends considerable effort in distinguishing Harris v.
¶1321State, 314 Ga. 238 (875 SE2d 659) (2022). In my view, Harris is distinguishable because the State did not allege that Harris engaged in a scheme that included murdering his son and committing sexual acts with other women. See id. at 238-39, 258 (1) (m), 261 (3)-283 (4). The other acts that were introduced in that trial were only used to support motive, intent, and the absence of mistake or accident. See id. 80 combined trial of the charges confused or misled the jury and where
¶1322verdict showed that the jury fully understood the law and evidence);
¶1323Overton v. State, 295 Ga. App. 223, 223-24, 234-35 (3) (671 SE2d
¶1324507) (2008) (finding no error in trial court’s denial of motion to sever
¶1325RICO counts from crimes alleged to be a part of defendants’ scheme
¶1326of illegal activity, and reasoning that the jury could distinguish the
¶1327evidence and apply the law intelligently to each offense).19
¶1328 For these reasons, I concur specially to Division 4 (a) and (b). I
¶1329concur fully in the remainder of the opinion.
¶1330 19 In his concurring opinion, Presiding Justice Peterson explains that
¶1331“the more aggressively the State uses RICO’s breadth, the more concern arises about conflict between the RICO statute and the accused’s constitutional right to a fair trial” and that as a result, the “majority’s approach wisely avoids having to grapple with such a challenging and consequential question.” Conc. Op. at __. However, I note that in Division 5 (c), the Court rejects White’s argument that the inclusion of the RICO count in the indictment “denied her a fair trial and due process as protected by the Fifth, Sixth and Fourteenth Amendment[s] to the United States Constitution, Art. I, Sec. I, Paragraphs I and II of the Georgia Constitution, and OCGA § 24-4-404 as to the character of the accused.” Maj. Op. at 50-53 (cleaned up). And, White does not argue on appeal that the RICO count should have been severed on the basis that including the count would deprive her of her constitutional right to a fair trial. For these reasons, I do not see how the purported avoidance of such a “challenging and consequential question” justifies the Court’s approach on severance. 81 I am authorized to state that Justice LaGrua joins in this
¶1332concurrence.
¶1333 82 LAGRUA, Justice, concurring specially in part.
¶1334 I join Justice McMillian in concurring specially to Division 4
¶1335(a) and (b), and I concur fully in the remainder of the majority
¶1336opinion. I write separately to caution prosecutors regarding the
¶1337overuse of RICO. The intent of Georgia’s RICO statute is to address
¶1338“the increasing sophistication of various criminal elements and the
¶1339increasing extent to which the state and its citizens are harmed as
¶1340a result of the activities of these elements.” OCGA 16-14-2 (a). See
¶1341also Chancey v. State, 256 Ga. 415, 416 (I) (349 SE2d 717) (1986)
¶1342(noting that Georgia’s RICO statute is patterned after the federal
¶1343RICO statute, which dealt “with the problem of the infiltration of
¶1344organized crime into all areas of American life through the money
¶1345derived from its illegal endeavors.”). That is not this case. White did
¶1346not murder her two-year-old son as a part of a sophisticated criminal
¶1347enterprise. And, just because we hold today that, under these facts,
¶1348the law supported trying White together for the RICO and the
¶1349murder charges does not mean that it was a smart use of the law. I
¶1350remind the State that a prosecutor’s “duty is to seek justice, not
¶1351 83 merely to convict. . . .” Carr v. State, 267 Ga. 701, 711 (10) (482 SE2d
¶1352314) (1997) (citations and punctuation omitted). Continuing to
¶1353overuse the law in this manner by charging RICO where it only
¶1354technically applies could result in a rewrite of the law.
¶1355 84