¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: March 4, 2025
¶4 S24A1002. RILEY v. THE STATE.
¶5 ELLINGTON, Justice.
¶6 Yathomas Riley, representing himself, appeals his convictions
¶7for malice murder and other crimes in connection with the shooting
¶8death of his wife, Dr. Lisa Marie Riley, in the presence of their infant
¶9son, G.W.R.1 Riley contends that the trial court erred by allowing
¶10 1 The crimes occurred on June 14 and July 9, 2015. On August 26, 2015,
¶11a Lee County grand jury indicted Riley for malice murder, felony murder, three counts of aggravated assault of Lisa on June 14, one count of aggravated assault of Lisa on July 9, and one count each of aggravated assault of G.W.R. by family violence and cruelty to children in the first degree. After a jury trial that ended on June 24, 2016, Riley was found guilty on all counts. On July 1, 2016, Riley was sentenced to serve life in prison without the possibility of parole for malice murder, consecutive 20-year prison terms for one count of aggravated assault of Lisa on June 14, 2015 and for cruelty to children, and concurrent 20-year prison terms for two counts of aggravated assault of Lisa on June 14 and for aggravated assault by family violence. The felony murder count was vacated by operation of law, and the count of aggravated assault of Lisa on July 9 was merged into the malice murder conviction. The indictment also charged Riley with one count of aggravated assault of five persons that allegedly occurred on May 25, 2015, but that count was not presented to the jury and was nolle prossed after trial. the lead investigator to remain in the courtroom during the trial,
¶12that allegedly false or inaccurate evidence was presented to the
¶13grand jury and at trial, and that Riley’s trial counsel provided
¶14constitutionally ineffective assistance and also caused a structural
¶15error by conceding Riley’s guilt. 2 For the reasons explained below,
¶16we affirm.
¶17 The State presented evidence at trial showing that on the night
¶18 Riley filed a timely motion for new trial, which he amended through new counsel on February 12, 2020. After Riley requested a ruling on the first ground of his amended motion without a hearing, the trial court denied the motion as to that ground. After a hearing on the remaining grounds on February 7, 2023, the trial court entered a final order denying Riley’s amended motion for new trial on August 23, 2023. Riley filed a timely pro se notice of appeal to the Court of Appeals on September 21, 2023, and the Court of Appeals transferred the case to this Court on November 30, 2023. In Case Number S24A0419, we remanded Riley’s case to the trial court on January 26, 2024, and, on April 3, 2024, the trial court determined that Riley made a knowing and voluntary decision to represent himself on appeal after receiving extensive and specific warnings. The case was then transmitted back to this Court, redocketed to the August 2024 term, and submitted for a decision on the briefs. 2 Although Riley’s appellate brief sufficiently raised these contentions,
¶19he also has filed many supplemental briefs that we do not consider because they were filed without leave of this Court as required by Supreme Court Rule 24 (2). Moreover, to the extent that Riley attempts to use those briefs to respond to the State’s arguments, they cannot be considered for that purpose because none of them was filed within the time allowed for reply briefs under Supreme Court Rule 10 (2), and no extension of time was requested. To the extent that Riley raises new issues in his supplemental briefs, they cannot be considered because “[s]upplemental briefs may not be used to expand the enumeration of errors.” Supreme Court Rule 24 (3). 2 of July 9, 2015, Riley shot and killed Lisa in their bedroom in close
¶20proximity to G.W.R. At the time of her death, Lisa was an emergency
¶21room physician at Phoebe Putney Memorial Hospital in Albany. For
¶22some time, Lisa’s mother, colleagues, and friends had been worried
¶23about her relationship with Riley because his behavior was “self-
¶24centered,” “controlling,” “jealous,” and possibly “abusive.” Lisa’s
¶25colleagues also testified that nothing made them suspect Lisa was
¶26suicidal.
¶27 Less than a month before the shooting, Riley was arrested for
¶28threatening to kill Lisa with a gun. On June 14, 2015, Lisa called
¶29911 to report a domestic incident. Riley was stopped after he left
¶30their house in a red convertible with several weapons, including a
¶31.380-caliber semi-automatic pistol in his pants. A sheriff’s deputy
¶32then went to the Riley house, where Lisa was “upset and crying,”
¶33with red marks on her neck and upper chest. Lisa’s mother received
¶34a phone call from Lisa, who “barely could speak” and “couldn’t
¶35breathe” but managed to say that Riley “tried to kill” her.
¶36 On the morning of July 10, 2015, Riley called 911. When
¶37 3 paramedics arrived at the house, Riley came out with G.W.R. and
¶38yelled for them to go inside the house. The paramedics found Lisa in
¶39the master bedroom, “obviously deceased” in rigor mortis. There was
¶40a firearm on the floor above Lisa’s head, and a large amount of blood
¶41all over the floor, furniture, and body, including some that “seemed
¶42to be smeared,” but no blood on G.W.R., who was wearing only a
¶43diaper at the time. Riley repeatedly asked to go back into the house
¶44to retrieve a cell phone, but, during a pat-down of Riley, an
¶45investigator at the scene found both Riley’s and Lisa’s phones in
¶46Riley’s pants pockets. The investigator testified at trial that, based
¶47on the crime scene, it was his opinion that Lisa did not shoot herself.
¶48Riley was taken into custody at a later time when a previous bond
¶49was revoked, and he was subsequently arrested for murder.
¶50 Video from surveillance cameras at the Riley house was
¶51collected and reviewed. As the video was played for the jury, a GBI
¶52special agent testified that, at 8:12 p.m. on July 9, 2015, Riley can
¶53be seen entering the front door of the house, and shortly after that,
¶54Lisa walked down the hallway toward the bedrooms with G.W.R.
¶55 4 crawling behind her. The last time Lisa appeared in any footage was
¶568:16 p.m. About 15 minutes later, Riley left the house alone in a
¶57white V-neck T-shirt that was later recovered and found to have
¶58blood spatter on the front. There was no further movement on the
¶59footage until about 8:25 a.m. the next morning, when a vehicle
¶60pulled into the driveway. Riley can be seen in the white V-neck T-
¶61shirt talking on the telephone at about 8:32 a.m., and paramedics
¶62arrived at 8:35 a.m.
¶63 A GBI firearms examiner testified that a bullet removed from
¶64the bedroom wall was fired from a .380-caliber semi-automatic
¶65pistol; that bullet fragments removed from Lisa’s skull and found
¶66under the bed came from a 9mm bullet that had been fired from the
¶67semi-automatic firearm found by Lisa’s body; and that lead
¶68fragments found in G.W.R.’s “bouncy seat” and in a bullet defect on
¶69the floor were consistent with a round fired from a revolver that was
¶70never recovered or identified.
¶71 The GBI medical examiner who performed Lisa’s autopsy
¶72explained that Lisa had a gunshot entry wound to the right
¶73 5 forehead. The bullet passed through her head in a downward, right-
¶74to-left trajectory, exiting behind the left ear and below the base of
¶75the skull. The bullet’s trajectory was not typical of a self-inflicted
¶76wound. In nearly all suicides by a gunshot wound to the head, the
¶77gun is in contact with the skin, and the typical trajectory for the
¶78gunshot wound is from side to side. However, Lisa’s gunshot wound
¶79was at close range with a steep downward trajectory, and the
¶80stippling and soot on her body indicated that the firearm was one to
¶81two inches from the skin. The medical examiner determined, based
¶82on her autopsy findings and the investigative information she
¶83received, that the manner of death was homicide.
¶84 A GBI criminal intelligence analyst testified that on the
¶85evening of July 9, 2015, at 9:20 to 9:21 p.m., Lisa’s cell phone had
¶86one outgoing call to, and then two incoming calls from, the home
¶87phone number of Riley’s then-attorney. And there were other
¶88outgoing calls to the Riley house during the night. Cell tower pings
¶89showed that after 9:40 p.m., Lisa’s phone was moved from north Lee
¶90County where the house was located to the Albany area to Atlanta,
¶91 6 then was moved back down the highway, and was returned to north
¶92Lee County at 8:09 a.m. Riley’s cell phone made the same journey
¶93around the same time. Lisa’s cell phone had four phone calls to
¶94Riley’s attorney between 8:25 and 8:28 a.m. on July 10, a six-minute
¶95call to 911 beginning at 8:31, and two subsequent calls to Riley’s
¶96attorney.
¶97 A GBI special agent who was qualified as an expert in crime
¶98scene investigation, bloodstain pattern analysis, and shooting
¶99incident reconstruction testified that the numerous bullet
¶100fragments and marks observed in the bedroom indicated that there
¶101was “a bunch of shooting” with “a lot of” different kinds of firearms
¶102being fired into many different items. The special agent concluded
¶103that the blood spatter, bullet trajectory angle through Lisa’s skull,
¶104and body position were consistent with someone shooting at Lisa,
¶105and not Lisa shooting herself. Examination of the clothes Riley was
¶106wearing at the scene revealed a reddish-orange discoloration on the
¶107front of his white V-neck T-shirt and a blood spatter pattern that
¶108appeared to be from “being in close proximity to a high-energy, high-
¶109 7 force velocity bloodshed event.” It also appeared that someone
¶110attempted to clean the bathroom sink before law enforcement
¶111arrived. Baby clothing recovered from behind a doorway to the
¶112master bedroom tested positive for significant quantity of blood,
¶113including a “huge saturation stain” on the back from where the baby
¶114lay or sat in a large quantity of blood. A small bone fragment was
¶115embedded in the front of the baby clothing, indicating that G.W.R.
¶116was very close to his mother when the shooting occurred.
¶117 Testimony given by ADT service technician Bryant Brown
¶118suggested that the gunshots likely occurred while Riley was present
¶119in the master bedroom and that he then checked the system
¶120throughout the night to view footage from the security cameras. A
¶121product called “ADT Pulse” gives customers the ability to monitor
¶122the security system themselves and keeps records every time a
¶123device is tripped in any way, whether or not the system is armed.
¶124Customers can view “pulse logs” on their pulse account on either a
¶125computer or cell phone. Each person associated with the account has
¶126his own username and password, making it possible to tell who
¶127 8 logged into the account. After the murder, Brown made a list of each
¶128of the system’s sensors by tripping each device in the security system
¶129while an assistant looked at the keypad to verify which sensor was
¶130tripped. Brown testified that the master bedroom’s glass-break
¶131sensor was tripped on July 9, 2015, at 8:23 p.m. and again at 8:26
¶132p.m., which was before Riley was seen on video walking out of the
¶133room. The motion sensors in the house then tripped in a way
¶134indicating that someone walked out of the master bedroom, to the
¶135front hall, back to the master bedroom, back to the front hall, and
¶136then out the front door at 8:32 p.m. Between 9:51 p.m. and 2:08
¶137a.m., Riley accessed the pulse system 21 times and viewed the
¶138footage from each of four security cameras. At 2:09 a.m., Riley used
¶139the pulse system to arm the security panel remotely. At 2:10 a.m.,
¶140the security panel was disarmed, rearmed, and then disarmed
¶141again, all remotely. Between 3:14 and 7:30 a.m., Riley again
¶142accessed the pulse system 21 times. No windows were broken in the
¶143Riley house. Pursuant to a search warrant, the GBI special agent
¶144went with GBI Investigator Stephen Douglas to the Riley house to
¶145 9 test-fire the 9mm pistol in the master bedroom, which demonstrated
¶146that the glass break sensor in that room would be tripped by a
¶147sequence of multiple gunshots.
¶148 1. Riley contends that the trial court erred by allowing
¶149Investigator Douglas to remain in the courtroom during the trial.
¶150The trial court did not abuse its broad discretion in that regard.
¶151 Investigator Douglas was the lead case agent with the GBI,
¶152prepared “the master report,” and “oversaw the investigative
¶153process” before being hired by the District Attorney. Riley filed a
¶154pre-trial motion to sequester all law enforcement witnesses. But, at
¶155the pre-trial motions hearing, the prosecutor requested that
¶156Investigator Douglas stay in the courtroom during the presentation
¶157of the case to the jury because the investigator had helped prepare
¶158the case for trial and was familiar with the voluminous evidence.
¶159The prosecutor expected Investigator Douglas to testify briefly on a
¶160few matters. Trial counsel objected based on the rule of
¶161sequestration. The trial court allowed Investigator Douglas to
¶162remain in the courtroom. Investigator Douglas ultimately was the
¶163 10 last witness to testify in the weeklong trial. He testified with respect
¶164to video recordings of the ballistics testing and the home alarm
¶165system, as well as a picture downloaded from a social media account
¶166of Riley’s.
¶167 Georgia’s rule of sequestration does “not authorize exclusion of
¶168. . . [a]n officer or employee of a party which is not a natural person
¶169designated as its representative by its attorney[.]” OCGA § 24-6-615
¶170(2). Based on this provision, it is well settled, under both the state
¶171rule and Federal Rule of Evidence 615 (2), 3 that “[i]t is within a trial
¶172court’s discretion to exempt the government’s chief investigative
¶173agent from sequestration[.]” Anderson v. State, 307 Ga. 79, 88 (5)
¶174(834 SE2d 830) (2019). Because Investigator Douglas was the State’s
¶175chief investigative agent, it was well within the trial court’s
¶176discretion to exempt him from the rule of sequestration and to deny
¶177 3 Notwithstanding the State’s improper reliance on precedent under our
¶178old Evidence Code, “[t]he text of OCGA § 24-6-615 differs significantly from the text of the sequestration provision of the old Evidence Code, and instead tracks in pertinent part the language of Federal Rule of Evidence 615 as that rule read in 2011,” and we therefore “look for guidance to the decisions of the federal appellate courts on Rule 615, not our precedent under the old Evidence Code.” Anderson v. State, 307 Ga. 79, 88 (5) n.15 (834 SE2d 830) (2019) (citation and punctuation omitted). 11 Riley’s objection on this ground. See id. Cf. Lopez v. State, 310 Ga.
¶179529, 533-534 (3) (b) (852 SE2d 547) (2020) (holding that it was not
¶180ineffective assistance when the defendant’s trial counsel failed to
¶181object to the State’s request for its chief investigative agent to be
¶182allowed to remain in the courtroom, because an objection on this
¶183ground would have been meritless and the trial court would have
¶184acted within its discretion in denying it), overruled on other grounds
¶185by Johnson v. State, 315 Ga. 876, 877, 884 (2) (b) (885 SE2d 725)
¶186(2023).
¶187 2. Riley contends that his federal due process rights were
¶188violated when certain allegedly false or inaccurate evidence related
¶189to his home security system was presented to the grand jury and at
¶190trial.4 Riley’s claims concerning evidence presented to the grand jury
¶191 4 Riley also claims under this enumeration that the trial judge, apparently by misrepresenting what Riley had preserved for review and by supposedly committing “perjury,” violated Riley’s right under the First Amendment of the United States Constitution to petition for redress of grievances. But “these arguments have been waived for purposes of this appeal, as a proper objection was not raised below with respect to these matters.” Atkinson v. State, 301 Ga. 518, 522 (3) (801 SE2d 833) (2017). Plainerror review is not available because none of Riley’s arguments involve any of the possible bases for such review in Georgia. See Miller v. State, 309 Ga. 549,
¶192 12 are not reviewable, and, as to his claims concerning evidence
¶193presented at trial, Riley either failed to preserve them for appeal or
¶194failed to meet his burden of showing error.
¶195 “[G]rand juries, unlike petit juries, are authorized to consider
¶196evidence without regard to its eventual admissibility at trial.” State
¶197v. Lampl, 296 Ga. 892, 898 (2) (770 SE2d 629) (2015). Indeed, “[t]he
¶198evidence which the grand jury receives in finding a true bill is not
¶199subject to inquiry as to admissibility, confidentiality, relevance or
¶200552 (2) (847 SE2d 344) (2020) (“In Georgia, plain error review is limited to the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion in violation of OCGA § 17-8-57, and a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b), and, for cases tried after January 1, 2013, with regard to rulings on evidence, a court is allowed to consider plain errors affecting substantial rights although such errors were not brought to the attention of the court. OCGA § 24-1-103 (d).” (citation and punctuation omitted)); State v. HerreraBustamante, 304 Ga. 259, 264 (2) (b) (818 SE2d 552) (2018) (holding that plainerror review under OCGA § 24-1-103 (d) “is limited to the trial court’s evidentiary rulings” and therefore did not apply to challenges to the constitutionality of certain statutes). Riley further claims that the trial judge should be impeached under the United States Constitution, but we have no jurisdiction to consider any such claim. See U.S. Const. Art. II, Sec. IV (providing for impeachment of “all civil Officers of the United States” (emphasis supplied)). See also U.S. Const. Art. I, Sec. II (“The House of Representatives . . . shall have the sole Power of Impeachment.”); Ga. Const. of 1983, Art. III, Sec. VII, Par. I (The Georgia “House of Representatives shall have the sole power to vote impeachment charges against any . . . judicial officer of this state[.]”). 13 prejudice, which evidentiary questions can be raised and resolved at
¶201trial.” Anderson v. State, 258 Ga. 70, 73 (11) (365 SE2d 421) (1988).
¶202See also Mitchell v. State, 239 Ga. 456, 459 (3) (238 SE2d 100)
¶203(1977). “[W]here it appears that a competent witness or witnesses
¶204were sworn and examined before the grand jury by whom the
¶205indictment was preferred, . . . no inquiry into the sufficiency or
¶206legality of the evidence is indulged.” Ward v. State, 288 Ga. 641, 643-
¶207644 (2) (706 SE2d 430) (2011) (holding that, where the appellant
¶208asserted “that the trial court erred in denying his motion to quash
¶209the indictment alleging that the grand jury heard testimony only
¶210from an investigator in the district attorney’s office who did not have
¶211first hand knowledge of the case,” the enumeration of error
¶212presented “nothing for review” (citation and punctuation omitted)).
¶213See also Felker v. State, 252 Ga. 351, 366 (2) (a) (314 SE2d 621)
¶214(1984) (quoted in Ward; rejecting dicta “implying any broader basis
¶215for quashing an indictment for lack of evidence”). Riley’s claims
¶216related to the grand jury furnish no grounds for reversal, as he “has
¶217not shown that any grand jury witness was incompetent or not
¶218 14 sworn properly.” Young v. State, 305 Ga. 92, 99 (7) (823 SE2d 774)
¶219(2019) (citation and punctuation omitted).
¶220 With respect to the trial itself, Riley briefly argues that the
¶221State violated his rights under Brady v. Maryland, 373 U. S. 83 (83
¶222SCt 1194, 10 LE2d 215) (1963), by failing to disclose evidence.5 But
¶223he fails to point to any specific undisclosed evidence that was
¶224favorable to him, and he therefore has failed to meet his burden of
¶225showing such evidence. See Muse v. State, 316 Ga. 639, 663 (8) (889
¶226SE2d 885) (2023) (The appellant made a Brady claim of failure to
¶227disclose text messages and other data extracted from his cell phone
¶228but did not point to any data that he contended was exculpatory, and
¶229this Court held that he had “failed to carry his burden to show that
¶230 5 To establish a violation under Brady, the defendant must show that:
¶231 (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 to the defense. Harris v. State, 309 Ga. 599, 605-606 (2) (b) (847 SE2d 563) (2020) (citation and punctuation omitted). “The burden of proof on these elements lies with the defendant.” Muse v. State, 316 Ga. 639, 662 (8) (889 SE2d 885) (2023) (citation and punctuation omitted). 15 the evidence was exculpatory.”).
¶232 As for Riley’s claim that false evidence and perjured testimony
¶233about the security system was presented at trial, he argues
¶234variously that Brown committed perjury when he testified about his
¶235evaluation of the system, that the ADT installation records and
¶236pulse logs admitted at trial had been falsified, and that this evidence
¶237was knowingly presented by the State. Riley purports to base this
¶238claim on his personal knowledge related to the installation and
¶239operation of his home security system, but he has not supported this
¶240assertion with his testimony or any other evidence Because Riley’s
¶241claim of false evidence and perjured testimony could have been
¶242raised at trial but was not, it has not been preserved for appeal. See
¶243Davis v. State, 316 Ga. 418, 424 (4) (b) (888 SE2d 546) (2023)
¶244(“Although we have serious doubts that [the appellant] has made the
¶245threshold showing that the prosecutor knowingly used perjured
¶246testimony or failed to correct what the prosecutor subsequently
¶247learned was false testimony, we need not reach these questions
¶248because we conclude that [the defendant’s] claim was not preserved
¶249 16 since it was not raised at trial.”).
¶250 3. Riley contends that his trial counsel provided
¶251constitutionally ineffective assistance by failing to investigate and
¶252prepare for trial properly. Riley asserts that his trial counsel’s
¶253alleged failure to prepare for trial is demonstrated by his failure “to
¶254review the State’s files and pretrial discovery,” “to interview
¶255witnesses,” “to request funds for” and “secure an expert witness in
¶256support of his theory of defense,” “to request or review . . . Riley’s
¶257medical records and fight history” as a boxer, “to secure a blood
¶258spatter expert to support his theory of victim suicide,” and “to secure
¶259an expert witness on the alarm system at the marital residence.”
¶260Riley also asserts that trial counsel failed to conduct a “reasonable
¶261investigation of witnesses who he himself opined would probably be
¶262helpful” and “to examine any of the many boxes of discovery that
¶263were provided by the State.” Riley further asserts that counsel
¶264completely failed “to provide any expert testimony as to . . . Riley’s
¶265medical history, medication, treating physicians or his
¶266boxing/fighting history that would suggest that he suffered from
¶267 17 CTE,” chronic traumatic encephalopathy. Riley has wholly failed to
¶268meet his heavy burden of proving that trial counsel’s alleged failures
¶269amounted to ineffective assistance.
¶270 To prevail on a claim of ineffective assistance, a defendant
¶271must prove both that the performance of his lawyer was deficient
¶272and that he was prejudiced by counsel’s deficient performance.
¶273Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80
¶274LE2d 674) (1984). To satisfy the deficiency prong of the Strickland
¶275test, the defendant “must show that his attorney performed at trial
¶276in an objectively unreasonable way considering all the
¶277circumstances and in light of prevailing professional norms.” Lofton
¶278v. State, 309 Ga. 349, 360 (6) (846 SE2d 57) (2020). “This requires a
¶279defendant to overcome the strong presumption that counsel’s
¶280performance fell within a wide range of reasonable professional
¶281conduct, and that counsel’s decisions were made in the exercise of
¶282reasonable professional judgment.” Scott v. State, 306 Ga. 417, 419-
¶283420 (2) (831 SE2d 813) (2019) (citation and punctuation omitted).
¶284“Decisions regarding trial tactics and strategy may form the basis
¶285 18 for an ineffectiveness claim only if they were so patently
¶286unreasonable that no competent attorney would have followed such
¶287a course.” Thomas v. State, 311 Ga. 706, 714 (2) (a) (859 SE2d 14)
¶288(2021) (citation and punctuation omitted). The defendant must also
¶289show that the deficient performance prejudiced the defense, which
¶290requires showing that “there is a reasonable probability that, but for
¶291counsel’s unprofessional errors, the result of the proceeding would
¶292have been different.” Strickland, 466 U. S. at 694 (III) (B). If an
¶293appellant “fails to meet his burden of proving either prong of the
¶294Strickland test, the reviewing court does not have to examine the
¶295other prong.” Williams v. State, 315 Ga. 797, 806 (2) (884 SE2d 877)
¶296(2023). “The burden of proving ineffective assistance is a heavy
¶297one[.]” Smith v. State, 303 Ga. 643, 646 (II) (A) (814 SE2d 411)
¶298(2018).
¶299 Riley has presented his ineffective assistance claims “in a
¶300cursory manner.” Brown v. State, 301 Ga. 728, 735 (4) (804 SE2d 16)
¶301(2017) (also involving a pro se appellant). And his list of “generalized
¶302assertions of his trial counsel’s alleged failings” does not “show in
¶303 19 what respect his counsel’s performance was deficient.” Jones v.
¶304State, 319 Ga. 758, 764 (3) (906 SE2d 699) (2024). See also Sauder
¶305v. State, 318 Ga. 791, 816 (7) (f) n.21 (901 SE2d 124) (2024) (“To the
¶306extent [the appellant] has not identified specific instances of these
¶307alleged deficiencies, he has not carried his burden of showing that
¶308his lawyer performed deficiently.”); Howard v. State, 318 Ga. 681,
¶309686 (2) n.2 (899 SE2d 669) (2024) (holding that an enumeration of
¶310counsel’s ineffectiveness for failing to “file a motion to suppress the
¶311photo lineup” was insufficient to raise any claim of ineffective
¶312assistance of counsel for our review); Ward v. State, 313 Ga. 265, 275
¶313(4) (c) (869 SE2d 470) (2022) (holding that the appellant failed to
¶314demonstrate ineffectiveness of trial counsel because he did “not
¶315identify any specific instances to support [his] broad allegations”).
¶316In any event, Riley “makes no specific argument and cites no
¶317authority to support any of these claims, so we do not address them.”
¶318Sauder, 318 Ga. at 816 (7) (f) n.21 (citing former Supreme Court
¶319Rule 22). See also current Supreme Court Rule 22 (1); Howard, 318
¶320Ga. at 686 (2) n.2 (“Moreover, because [the appellant] makes no
¶321 20 substantive argument or citation of authority regarding trial
¶322counsel’s alleged deficiencies in this regard, we would not address
¶323such claims of ineffectiveness even if they were contained in his
¶324enumerations of error.” (citing former Supreme Court Rule 22)).
¶325 4. Riley also claims that his trial counsel was ineffective by
¶326failing to pursue severance of both the count of cruelty to children,
¶327which was alleged to have occurred on the same day as the murder,
¶328and the three counts of aggravated assault of Lisa that were alleged
¶329to have occurred on June 14, 2015, from the murder counts. Counsel
¶330did file a pre-trial motion to sever the aggravated assault counts that
¶331allegedly occurred on June 14, 2015 from the counts of murder and
¶332other crimes alleged to have occurred on July 9, 2015. But he
¶333withdrew the motion to sever based on the parties’ agreement, which
¶334the trial court accepted, to sever the count of aggravated assault
¶335allegedly occurring on May 25, 2015. As explained above in footnote
¶3361, the indictment included one count of aggravated assault of five
¶337persons that allegedly occurred on May 25, 2015, but, pursuant to
¶338the parties’ agreement, that count was not presented to the jury and
¶339 21 in fact was nolle prossed after trial. 6
¶340 The record shows that trial counsel’s agreement not to pursue
¶341severance of the cruelty to children count and the June 14, 2015
¶342aggravated assault counts from the murder counts benefitted Riley
¶343by securing the State’s agreement to sever the count of aggravated
¶344assault of five persons on May 25. Riley’s strategic choice to
¶345withdraw his motion to sever in return for the State’s agreement to
¶346sever the May 25 aggravated assault was not objectively
¶347unreasonable, especially when it appears that the aggravated
¶348assaults against the victim less than a month before the murder and
¶349the crimes against the child at the same time as the murder would
¶350have been admissible even if they had not been charged in this
¶351 6 Riley enumerates trial court error with respect to severance, and the
¶352enumeration itself does not mention the ineffectiveness claim, although he discusses this ineffectiveness claim in his argument under the enumeration. When counsel withdrew the motion to sever before the trial court ruled on it, he waived the issue of whether the trial court erred in not granting severance. See Leonard v. State, 316 Ga. 827, 836 (4) (889 SE2d 837) (2023) (“Because Leonard failed to obtain a ruling on the issue [of severance], he cannot raise it for the first time in this Court.” (citation and punctuation omitted)); Moss v. State, 298 Ga. 613, 615 (3) (783 SE2d 652) (2016) (“Appellant withdrew his motion to quash at a motions hearing, before the trial court had ruled on it, so he cannot now complain that the court did not grant it.”). And the issue may not be reviewed for plain error. See Leonard, 316 Ga. at 836 (4) n.9. 22 indictment. See McNabb v. State, 313 Ga. 701, 713 (2) (a) (872 SE2d
¶353251) (2020) (holding that trial counsel did not perform deficiently by
¶354failing to object to certain evidence because his “strategic choice to
¶355pursue an agreement with the prosecutor after initially filing a
¶356motion in limine to exclude the evidence at issue . . . was not
¶357objectively unreasonable,” where counsel “would have pressed his
¶358objections had he not obtained a favorable outcome with the
¶359prosecutor, and it was not unreasonable for trial counsel to believe
¶360he received a more favorable outcome in his negotiations with the
¶361prosecutor than he might have received by pressing his motion with
¶362the trial court, as much of the evidence [at issue] could have been
¶363admitted as intrinsic evidence of the crimes”); Lowe v. State, 314 Ga.
¶364788, 791-794 (2) (a) (879 SE2d 492) (2022) (holding that the trial
¶365court did not abuse its discretion in denying a motion to sever
¶366murder charges from charges involving similar acts of domestic
¶367violence against the victim occurring two years before the murder,
¶368because such other-acts evidence would have been admissible to
¶369demonstrate the parties’ prior difficulties, shed light on the
¶370 23 appellant’s motive, and to counter his defense of accident); Carson
¶371v. State, 308 Ga. 761, 764 (2) (a) (843 SE2d 421) (2020) (“Severance
¶372is generally not warranted where the crimes charged [involved
¶373different victims but] occurred over the same period of time and stem
¶374from a course of continuing conduct.” (citation and punctuation
¶375omitted)).
¶376 5. Finally, Riley contends that his trial counsel conceded guilt
¶377at trial and thereby created a structural error that must be
¶378presumed prejudicial under McCoy v. Louisiana, 584 U. S. 414 (138
¶379SCt 1500, 200 LE2d 821) (2018). Specifically, Riley argues that
¶380counsel used a defense of insanity or mental defect that Riley had
¶381explicitly and vehemently rejected: that Riley, as a result of his
¶382participation in the sport of boxing, suffered from CTE, a progressive
¶383brain injury caused by multiple concussions, and that this injury
¶384caused him to commit the crimes. However, as explained below, to
¶385the extent that counsel argued such a defense, he did not concede
¶386guilt and therefore did not violate McCoy.
¶387 McCoy held that a defendant has the right under the Sixth
¶388 24 Amendment “to insist that counsel refrain from admitting guilt,
¶389even when counsel’s experienced-based view is that confessing guilt
¶390offers the defendant the best chance to avoid the death penalty” and
¶391that “[w]ith individual liberty—and, in capital cases, life—at stake,
¶392it is the defendant’s prerogative, not counsel’s, to decide on the
¶393objective of his defense[.]” 584 U. S. at 417-418. The State relies on
¶394the fact that the death penalty was not sought in this case and on a
¶395suggestion in the dissenting opinion in McCoy that the Court’s
¶396holding was “effectively confined to capital cases.” Id. at 433 (II)
¶397(Alito, J., dissenting). But even assuming that McCoy is not limited
¶398to capital cases, 7 counsel did not disregard the defendant’s
¶399prerogative as prohibited in McCoy.
¶400 As we recently explained, the United States Supreme Court
¶401specifically held in McCoy, 584 U. S. at 422-423 (II) (A), that
¶402“autonomy to decide that the objective of the defense is to assert
¶403 7 We recently took the same tack in another case, where – like here – we
¶404assumed without deciding that McCoy could apply in non-capital cases. See Griffin v. State, Case No. S25A0086, 2025 WL 515896, at *3 (2) n.3 (decided Feb. 18, 2025). 25 innocence is reserved for the client,” and “when a client expressly
¶405asserts that the objective of his defense is to maintain innocence of
¶406the charged criminal acts, his lawyer must abide by that objective
¶407and may not override it by conceding guilt.” Griffin v. State, Case
¶408No. S25A0086, 2025 WL 515896, at *3 (2) (a) (decided Feb. 18, 2025)
¶409(punctuation omitted).Here, we conclude that Riley’s claim fails
¶410because counsel did not “concede” guilt in the same manner as
¶411counsel in McCoy. See id. at 423 (II) (A) (“When a client expressly
¶412asserts that the objective of his defen[s]e is to maintain innocence of
¶413the charged criminal acts, his lawyer must abide by that objective
¶414and may not override it by conceding guilt.” (citation, punctuation,
¶415and emphasis omitted)). Cf. Griffin, 2025 WL 515896, at *4 (2) (b)
¶416(assuming that counsel “conceded” the defendant’s guilt but
¶417concluding that the record did not support the existence of an
¶418“intransigent and unambiguous objection”).
¶419 In McCoy, counsel left no doubt that he was conceding the
¶420defendant’s guilt, telling the jury that the evidence was
¶421“unambiguous,” that the defendant “was the killer,” and that on this
¶422 26 issue counsel “took the burden off of the prosecutor.” Id. at 419-420
¶423(I) (citation and punctuation omitted). See also Christian v. Thomas,
¶424982 F3d 1215, 1222 (III) (B) (1) (9th Cir. 2020) (recognizing that
¶425“McCoy’s counsel did not couch, equivocate, or preface these
¶426statements with assurances that he was arguing only in the
¶427alternative”). Unlike counsel in McCoy, Riley’s trial counsel – during
¶428closing argument – repeatedly emphasized the prosecutor’s burden
¶429to prove Riley’s guilt beyond a reasonable doubt and asserted the
¶430prosecutor’s failure in this circumstantial evidence case to exclude
¶431the following reasonable theories other than guilt: that Lisa
¶432“committed suicide after he left”; that she “committed suicide while
¶433he was there before he left and he was afraid to report it”; that “if he
¶434did it, he did it without malice aforethought, which means that’s
¶435voluntary manslaughter,” a theory he called a reasonable
¶436“alternative” theory 8; and finally that “[i]f he did it, he did it because
¶437of CTE, which is a disease, a brain damage disease, that boxers get”
¶438 8 Riley raises no claim that counsel conceded guilt against Riley’s wishes
¶439by arguing the alternative theory of manslaughter. 27 and that would result in a verdict of “not guilty by reason of
¶440insanity.” Also during closing argument, counsel reviewed a variety
¶441of evidence that he argued supported the theory of suicide or
¶442manslaughter but that would not support the alternative theory
¶443based on CTE. 9
¶444 Urging the jury to consider insanity based on CTE as an
¶445alternative argument did not amount to a concession of guilt, did not
¶446relieve the State of its burden to prove Riley’s guilt beyond a
¶447reasonable doubt, and reflected an objective that was identical to
¶448Riley’s: acquittal. Counsel’s “objective was not, as it was in McCoy,
¶449to forsake acquittal in hopes of obtaining a lighter sentence.”
¶450Christian, 982 F3d at 1225 (III) (B) (3). In short, counsel did not
¶451violate Riley’s Sixth Amendment rights under McCoy simply by
¶452arguing an alternative theory to support acquittal, and therefore did
¶453not create a structural error that must be presumed prejudicial.
¶454 Judgment affirmed. All the Justices concur.
¶455 9 These closing arguments were drawn in part from counsel’s own cross-
¶456examination of the State’s witnesses and were consistent with counsel’s opening statement. 28