Lewis v. State ( 2021 )

In the Supreme Court of Georgia
Decided: June 1, 2021
S21A0250. LEWIS v. THE STATE.
WARREN, Justice.
Appellant Jeffrey Lewis was convicted of felony murder and
other crimes in connection with the fatal shooting of Delorean
Patterson, who was killed during an armed robbery that Lewis,
Patterson, and others carried out at a “trap house” in Atlanta in
2011.1 On appeal, Lewis argues that the trial court erred by
1 The crimes were committed on the night of March 25 and the early
morning of March 26, 2011. On December 30, 2011, Lewis, Darrius
Richardson, and Montavious Rosson were indicted jointly by a Fulton County
grand jury for two counts of felony murder predicated on criminal attempt to
commit armed robbery and aggravated assault and one count each of criminal
attempt to commit armed robbery, aggravated assault, and possession of a
firearm during the commission of a felony. Lewis and Richardson each were
also indicted for a third count of felony murder and the underlying crime of
possession of a firearm by a convicted felon. Lewis was tried separately in
October and November 2013, and a jury found him guilty on all counts. He
was sentenced to life in prison for one count of felony murder, a consecutive
ten years for possession of a firearm during the commission of a felony, and a
consecutive five years for possession of a firearm by a convicted felon. The
admitting into evidence a confession he gave to police while in
custody because it was induced by a “hope of benefit”; by admitting
that same confession because it was obtained in violation of his right
to counsel; by denying Lewis’s claim that his trial counsel was
constitutionally ineffective for failing to object when the trial court
refused to expound on a jury instruction; and by giving an incorrect
jury instruction on the statutory accomplice-corroboration
requirement. Identifying no reversible error, we affirm Lewis’s
convictions.
1. Background
(a) Gault Street Crimes
The evidence presented at Lewis’s trial showed that on the
evening of March 25, 2011, Lewis, a convicted felon, met with at
least four or five men, including Patterson and Darrius Richardson,
remaining counts were merged or vacated for sentencing purposes. Lewis
timely filed a motion for new trial on November 12, 2013, which was later
amended on September 23, 2015, and again through his current counsel on
July 19, 2017. A hearing on Lewis’s motion for new trial was held on November
22, 2019, and the trial court denied the motion on January 16, 2020. Lewis
filed a timely notice of appeal. The case was docketed in this Court for the
term of court beginning in December 2020 and orally argued on February 4,
2021.
2
to rob the occupants of a house located at 1316 Gault Street in
Fulton County, where they expected to find large amounts of drugs
and cash. The group took two cars to the house, and several people,
including Lewis and Patterson, rode in a burgundy Nissan Altima
that Lewis had rented. Danielle Parks, who had dated Patterson for
several months, testified that on that evening, she drove Patterson
to the Doo Drop Inn to meet with Lewis. She said that while
Patterson was in her car, he was on the phone with Lewis and that
when she dropped Patterson off, he got into a burgundy Nissan
Altima driven by Lewis with several male passengers inside.
According to Richardson, when the group arrived at the Gault
Street house, Richardson and Patterson entered the house, carrying
firearms and wearing bulletproof vests. The rest of the group,
including Lewis, remained outside. Richardson and Patterson
encountered two men inside the house and demanded money from
them. One of those two men, Stephen Johns, testified that after he
handed over a box of money, either Richardson or Patterson pointed
a gun and “tried to shoot” him. Johns fled out the back of the house.
3
He claimed that approximately $10,000 was stolen.
While Patterson and Richardson were inside the house, gunfire
erupted outside. Richardson dropped to the floor, but Patterson ran
outside. Eventually, Richardson left the house and saw Patterson
lying unconscious and unresponsive in the driveway. Richardson
testified that he picked up Patterson, who was still wearing a
bulletproof vest, and placed him in the Nissan Altima Lewis had
rented.
Early on the morning of March 26, 2011, police responded to a
call that a man’s body was lying in front of a school. Detective Scott
Demeester arrived at the scene and saw Patterson lying on his
stomach with a trail of blood leading away from his body. Detective
Demeester later testified that Patterson seemed to have been shot
at a different location because officers did not find any shell casings
near the body. A Fulton County medical examiner testified that
Patterson died of gunshot wounds to the torso and that the cause of
death was homicide. And a GBI firearms expert testified that the
bullet fragments recovered during Patterson’s autopsy were likely
4
fired from an SKS or AK-47-style rifle.
After a preliminary investigation, Detective Demeester spoke
with Montavious Rosson, one of the men who stood outside the Gault
Street house during the armed robbery. Based on that conversation,
Detective Demeester located the Nissan Altima and discovered that
Lewis had rented it using a fake driver’s license. Lewis’s
fingerprints were located on the interior and exterior of the vehicle.
Police arrested Lewis on March 30, 2011, on an unrelated
warrant. Detective Demeester—who suspected Lewis was involved
in the Gault Street crimes based on his conversations with Rosson
and Parks, and on evidence related to the Nissan Altima—asked
Lewis to discuss the case with him. Lewis declined to do so.
(b) Lewis’s Three-Way Phone Call From Jail 2
On April 24, 2011, five days after an arrest warrant was issued
accusing Lewis of felony murder for the death of Patterson, Lewis—
2 The State filed a motion in this Court on February 22, 2021, to
supplement the record with a transcript of this telephone call. Because an
audio recording of the phone call is contained in the record on appeal, the
transcript is unnecessary, so we deny the State’s motion.
5
who was still in custody for an unrelated charge—called his sister
from the Fulton County jail. During that phone call, Lewis’s sister
called Detective Demeester at Lewis’s direction so that the three of
them could discuss the Gault Street case. At the outset of the call,
Detective Demeester acknowledged that Lewis was represented by
counsel, and Lewis gave Detective Demeester the name of his two
attorneys. Lewis then said that he had been wanting to speak with
Detective Demeester at the jail; asked if Detective Demeester could
get him out of jail that night; offered to take him to the scene of the
armed robbery and shooting; and provided unsolicited information
about the case. Detective Demeester informed Lewis that before the
phone call, he had spoken with an attorney who Lewis previously
claimed was representing him. However, that attorney was not one
of the two attorneys Lewis mentioned at the outset of the call.
Detective Demeester said that the attorney he spoke with—who
apparently was not currently representing Lewis—told Detective
Demeester that if he were Lewis’s attorney, Lewis was “not gonna
talk to you.” After he was informed of this exchange, Lewis
6
nonetheless began pleading with Detective Demeester to speak with
him, saying “I really need you to come down here to talk to me . . . .
I’m innocent . . . I didn’t do that. I’ll let you know everything . . . . I
can lead you to everything. That’s my word man . . . . I can lead you
to the scene. Do you know where the scene at?” He continued:
I’ll lead you—y’all can come get me tomorrow and I can, I
can, I can try and—I can make a phone call on whoever’s
cell phone and find out exactly where is the address. And
find out everything . . . . When we get to the scene I can
show you exactly where everybody was standing and
everything, Mr. Demeester.
In response, Detective Demeester asked Lewis specific
questions about the Gault Street crimes, but never advised Lewis of
his rights under Miranda. 3 Lewis then had the following exchange
with Detective Demeester:
LEWIS: If I reach out to my attorney tomorrow and tell
them that I want to talk to you, and tell them to come up
with some kind of deal, can that work Detective
Demeester? Please? . . . Mr. Demeester, here’s what I’m
telling you, man. Here’s my word, man . . . when I come
down there to homicide, man, I’ll take a lie detector or
whatever, Mr. Demeester. I can help y’all with whatever
y’all want. I can take y’all to everything . . . . [w]hatever
3 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
7
y’all ask for, man, that’s what I’m going to do. That’s my
word, man.
...
DETECTIVE: Would you want to talk to me without your
attorney?
LEWIS: I would talk to you without my attorney, if that’s
what the attorney said, yes. That’s my word, man. I just
want you to know that I didn’t kill him period.
...
DETECTIVE: What I’m going to do is I’m going to call
the district attorney that is handling the case right now,
I’m going let him know that you are reaching out to me
and that you want to talk . . . but we’re going to have to
communicate with your attorney, man, I mean, you know,
and I can almost guarantee you they’re going to tell you
not to talk to me. But, you know, that’s just the way it is.
What you have to understand is that you’re also a grown
man and you can choose, you know, if you feel that the
attorney is not acting in your best interest, then you don’t
have to . . . you can not listen to them, you know what I
mean?
(Emphasis supplied.)
Detective Demeester also told Lewis that had Lewis cooperated
when he was first arrested, he “wouldn’t be in this situation right
now.” Lewis explained that his initial hesitancy to cooperate
stemmed from his recollection of his attorney’s advice in a different
8
criminal proceeding, in which Lewis’s lawyer told him to never
speak with law enforcement without counsel present, but that Lewis
was now “willing to do everything, Mr. Demeester. That’s my word.
I’m talking about everything.” He then repeated his offer to bring
Detective Demeester to the Gault Street house and show him where
everyone was standing during the armed robbery. Detective
Demeester again told Lewis that he would inform the district
attorney of Lewis’s interest in cooperating and “go from there.” The
call ended after Detective Demeester told Lewis that he would be in
contact “real soon,” and Lewis asked Detective Demeester to stay in
contact with Lewis’s sister, whom Detective Demeester promised to
call first thing the next morning.
(c) Lewis’s Custodial Interview
The next day, April 25, 2011, Detective Demeester brought
Lewis to the Atlanta Police Department headquarters to conduct a
video-recorded interview. Before Lewis gave his statement, he
acknowledged that he had contacted and asked to speak with
Detective Demeester via a three-way phone call the day before. At
9
the outset of the interview, Detective Demeester confirmed Lewis’s
education level and that Lewis could read and write English. After
Detective Demeester reviewed it with Lewis, Lewis signed a written
waiver form that listed his rights under Miranda and memorialized
that he waived his right to counsel. The following exchange then
occurred:
LEWIS: So, the DA never said they was going to try to
help me out.
DETECTIVE: I’m not saying that, no.
LEWIS: Okay, they didn’t?
DETECTIVE: I’m sorry?
LEWIS: They didn’t at all like try—
DETECTIVE: He—he stated that if you wanted to come
down and make a statement . . . that you can do that.
LEWIS: That’s it?
DETECTIVE: That’s what he said, all right? You want—
you want me to call your sister?
With Lewis’s sister on the phone, the conversation continued:
LEWIS: He was saying like the DA didn’t say anything
about like trying to help me out or whatever, but I know
10
it’s—it’s the right thing to do it anyway . . . even though
I’m down here talking to him, it’s not—it’s not like I’m—
I’m just gone come home because I’m talking to them.
LEWIS’S SISTER: So, it ain’t [inaudible] help in no type
of way?
LEWIS: Not really . . .
DETECTIVE: No, I’m not saying that it can’t help in any
way. Now, he ain’t going to get out of jail tonight. I
already explained that to him.
...
LEWIS’S SISTER: So, they ain’t trying to give you help
in no type of way?
...
DETECTIVE: That’s—it—it—the way I explained to him
and what I explained to you is that he has a right to come
down and talk to me and provide me with a statement and
that he didn’t take that opportunity the first time. So, he
reached out to me and this is his second opportunity. . . .
So, I’m giving him a second opportunity to come down and
tell me what he knows. All right? . . . So, this is his
opportunity and if—and if he is honest and truthful and
telling me everything that happened then his attorney
could—could hopefully use that to assist him in the
future.
LEWIS’S SISTER: Okay. . . . So, they ain’t gone take that
murder charger [sic] off you? What you didn’t do.
DETECTIVE: Not right now, no. Because like I said I’ve
only got one side of the story. I don’t have [Lewis’s] side
11
of the story.
After ending the call with Lewis’s sister, Detective Demeester
began questioning Lewis about the Gault Street armed robbery and
Patterson’s shooting death. Lewis then admitted to driving
Patterson and others to the Gault Street house in a Nissan Altima
on March 25. He explained that Richardson—whom Lewis also
identified in a photo lineup—and Patterson went into the Gault
Street house wearing bulletproof vests; that the rest of the group
remained outside; and that after the shooting began, Lewis fired a
.45-caliber gun at a vehicle parked at the end of the street until the
weapon was unloaded.4 Lewis claimed that after Patterson was
shot, Lewis and others in his group drove Patterson’s body to an area
near a school, removed Patterson’s bulletproof vest, and placed his
body on the sidewalk. Lewis told Detective Demeester that he
disposed of the weapons and the bulletproof vest in the woods. Lewis
also drove with Detective Demeester to the Gault Street house and
4It is not entirely clear from the interview at which point during the
robbery Lewis fired his gun, but his description of the events did not suggest
that Patterson was hit by any of the shots Lewis fired.
12
pointed it out as the house where Patterson was shot.
Based on all of this information, Detective Demeester obtained
and executed a search warrant on the Gault Street house. There, he
identified approximately 52 bullet holes in the home’s exterior and
recovered two bullets from inside the house, including a .45 metal-
jacketed bullet.
On December 30, 2011, Lewis was indicted for felony murder,
criminal attempt to commit armed robbery, aggravated assault,
possession of a firearm during the commission of a felony, and
possession of a firearm by a convicted felon based on his involvement
in the Gault Street armed robbery and the shooting death of
Patterson.
(d) Motion to Suppress
Lewis filed a motion to suppress the April 24, 2011 statements
he made to Detective Demeester during the three-way phone call
from jail and the confession he gave during his April 25, 2011
custodial interview. He also requested a hearing under Jackson v.
Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964), to determine
13
whether the confession was given without the “slightest hope of
benefit or remotest fear of injury.” OCGA § 24-8-824.
At the hearing, Lewis argued (among other things) that the
statements he made during the April 24 three-way jail call were
given in violation of Miranda and that his confession during the
April 25 custodial interview was given with a “hope of benefit” and
therefore inadmissible under former OCGA § 24-3-50.5 Apparently
finding that the detective was required but failed to advise Lewis of
his Miranda rights, the trial court granted Lewis’s motion to
suppress statements made during the April 24 three-way call from
jail. However, the trial court denied Lewis’s motion to suppress the
April 25 custodial interview, finding that Lewis had initiated contact
5 Lewis’s motion to suppress was filed on October 31, 2012, before the
January 1, 2013 effective date for our current Evidence Code. See Ga. L. 2011,
p.99, § 101 (new Evidence Code applies to “any motion made or hearing or trial
commenced on or after” January 1, 2013) (emphasis supplied). But because
the current Evidence Code carried forward former OCGA § 24-3-50 as OCGA §
24-8-824 without substantive change and that Code section does not have a
federal counterpart, the analysis is the same under either version of the Code.
See Budhani v. State, 306 Ga. 315, 325 n.10 (830 SE2d 195) (2019) (citation
and punctuation omitted). See also State v. Chulpayev, 296 Ga. 764, 771 (770
SE2d 808) (2015) (same).
14
with Detective Demeester, was advised of and waived his rights
under Miranda, and indicated that he understood there was no deal
in place with the district attorney. The trial court thus concluded
that the statements made during Lewis’s April 25 custodial
interview were not given with a “hope of benefit” and were therefore
admissible.6
(e) Trial
Lewis did not testify at trial, but the State played for the jury
the video of Lewis’s April 25 custodial interview, in which he
admitted his involvement in the Gault Street crimes. In addition,
the State also introduced cell-site records showing that Lewis’s
phone was near the Gault Street house on the night of the armed
robbery and shooting, as well as a text message sent from Lewis’s
phone on March 24, 2011—one day before the shooting—saying,
6 In his written motion to suppress, Lewis also claimed that his April 24
and 25 statements were inadmissible because they were obtained in violation
of his right to counsel under the Fifth Amendment to the United States
Constitution and Article I, Section I, Paragraph XIV of the Georgia
Constitution. It is not clear whether the trial court ruled on this issue.
As discussed in Division 2 (b) below, Lewis raises a Fifth Amendment
right-to-counsel claim in this Court, and we pretermit whether it was properly
preserved for review and conclude that his claim is meritless.
15
“Yeah, I still got the vest.” The jury found Lewis guilty on all counts.
2. Lewis contends that his April 25, 2011 custodial interview—
in which he confessed to participating in the Gault Street armed
robbery—was inadmissible under Georgia statutory law and the
United States Constitution. 7 For the reasons explained below, we
reject his claim.
(a) Hope of Benefit Claim
Lewis contends that the confession he made during his April
25 custodial interview was induced by “the slightest hope of benefit”
and was therefore inadmissible under OCGA § 24-8-824.8 To
support this claim, Lewis points to several statements Detective
Demeester made on April 24 and 25 that he says created a “hope of
benefit” that the State would offer him a plea deal in exchange for
7 Lewis also cites Article I, Section I, Paragraph XIV of the Georgia
Constitution to support his right-to-counsel claim. However, because he
neither offers authority to support his argument, nor attempts to distinguish
or even compare the relevant Georgia constitutional provision with its federal
counterpart, we decline to analyze Lewis’s claim separately under the Georgia
Constitution.
8As noted above in footnote 5, the current Evidence Code carried forward
former OCGA § 24-3-50 as OCGA § 24-8-824, and the provisions are materially
the same.
16
his cooperation. Specifically, during the April 24 three-way phone
call from jail, Detective Demeester told Lewis that, had he
cooperated earlier, he “wouldn’t be in this situation right now.” And
the next day, after Lewis told his sister that the district attorney
was not offering a plea deal, Detective Demeester interjected that
he was “not saying that [Lewis’s cooperation] can’t help in any way,”
and that although he could not get Lewis released from jail that
night, if Lewis were “honest and truthful and telling me everything
that happened,” Lewis’s attorney could “hopefully use” it “to assist
[Lewis] in the future.” Additionally, when Lewis’s sister asked
whether the State was dropping the murder charges against Lewis,
Detective Demeester responded, “[n]ot right now . . . because I’ve
only got one side of the story. I don’t have [Lewis’s] side of the story.”
Under OCGA § 24-8-824, a confession is admissible if it is
“made voluntarily, without being induced by another by the
slightest hope of benefit or remotest fear of injury.” The phrase
“slightest hope of benefit” is not to be understood “in the colloquial
sense” but instead “as it is understood in the context within the
17
statute.” Budhani v. State, 306 Ga. 315, 325 (830 SE2d 195) (2019)
(citation and punctuation omitted). We have explained that the
phrase “refers to promises related to reduced criminal
punishment—a shorter sentence, lesser charges, or no charges at
all.” Id. (citations and punctuation omitted). Such promises are
distinct from “exhortations or encouragement to tell the truth,
conveying the seriousness of the accused’s situation, or offering to
inform the district attorney about the accused’s cooperation while
making clear that only the district attorney can determine charges
and plea deals,” which do not constitute a hope of benefit. Id.; see
also Huff v. State, 299 Ga. 801, 803 (792 SE2d 368) (2016)
(“Encouragement or admonitions to tell the truth will not invalidate
a confession.”). Furthermore, showing that law enforcement
officials impermissibly promised a hope of benefit does not, on its
own, render a confession inadmissible; a defendant must also
establish that the hope of benefit “induced” his confession. See
OCGA § 24-8-824; Kessler v. State, __ Ga. __, Case No. S21A0066
(decided May 3, 2021); Budhani, 306 Ga. at 326.
18
Here, even assuming—without deciding—that Detective
Demeester’s statements to Lewis on April 24 and 25 constituted an
impermissible hope of benefit, Lewis has failed to demonstrate that
the statements induced his April 25 confession. Indeed, the record
shows that Lewis confessed despite knowing that no benefit would
ensue: on April 25, Lewis told his sister that “the DA didn’t say
anything about like trying to help me out or whatever, but I know
it’s—it’s the right thing to do it anyway.” Where, as here, the record
shows that Lewis elected to speak with law enforcement officers
because “it’s the right thing to do,” even after he acknowledged that
law enforcement officers had not said they would “help [him] out,”
we cannot say that his confession was induced by a hope of benefit.
See Kessler, __ Ga. at __ (confession was not induced by improper
hope of benefit where the defendant testified that he confessed
because of religious reasons). Therefore, the trial court did not err
under OCGA § 24-8-824 when it admitted Lewis’s April 25
confession.
(b) Right to Counsel Claim
19
Lewis argues that the confession he gave during the April 25
custodial interview was obtained in violation of his right to counsel
under the Fifth Amendment to the United States Constitution. 9 To
succeed on this claim, he necessarily must show that he invoked his
Fifth Amendment right to counsel. To that end, Lewis appears to
assume on appeal that he invoked his right to counsel during the
9 Lewis also contends that the State violated his right to “have the
[a]ssistance of [c]ounsel for his defense” under the Sixth Amendment to the
United States Constitution. Among other reasons, his argument fails because
the Sixth Amendment right to counsel “attaches only at the initiation of
adversary criminal proceedings,” and Lewis does not point to any such
initiation here. Clements v. State, 301 Ga. 267, 269-270 (800 SE2d 552) (2017)
(“Before judicial proceedings are initiated[,] a suspect in a criminal
investigation has no constitutional right to the assistance of counsel.”) (citation
and punctuation omitted). Indeed, Lewis does not point to anything between
the April 19, 2011 issuance of his arrest warrant and the April 24 and 25
statements he made to Detective Demeester that could constitute “the
initiation of adversary criminal proceedings” relating to the Gault Street
crimes. See id.; Rackoff v. State, 281 Ga. 306, 308 (637 SE2d 706) (2006)
(stating that “the [Sixth Amendment] right to counsel does not attach
automatically upon arrest”). See also Outlaw v. State, ___ Ga. ___ n.6, Case
No. S21A0305 (decided May 3, 2021). Moreover, a defendant’s Sixth
Amendment right to counsel is offense-specific, meaning that “even if the right
to counsel has attached to one offense for which the defendant has been
charged, it does not attach to even a factually-related separate offense for
which the defendant has not been charged.” Chenoweth v. State, 281 Ga. 7, 9
(635 SE2d 730) (2006); see also McNeil v. Wisconsin, 501 U.S. 171, 175 (111
SCt 2204, 115 LE2d 158) (1991). As applied here, that means that even to the
extent Lewis’s Sixth Amendment right to counsel had attached with respect to
the unrelated crimes for which he was indicted on April 8, 2011, they did not
attach with respect to the crimes at issue in this appeal.
20
April 24 three-way phone call from jail. He then contends that he
did not later waive that invocation and that Detective Demeester did
not honor Lewis’s right to counsel on April 25. As a result, he claims
that even if he initiated an interview with Detective Demeester on
the day after the three-way phone call, any statements Lewis made
during the custodial interview were the product of a past violation
of his previously invoked right to counsel and were therefore
inadmissible. See Mack v. State, 296 Ga. 239, 246, 248 (765 SE2d
896) (2014). For the reasons explained below, we conclude that
Lewis has not shown that he clearly and unambiguously invoked his
Fifth Amendment right to counsel, and therefore conclude that the
trial court did not err by admitting the recording of his April 25
custodial interview into evidence.
If a suspect asks for a lawyer during a custodial interrogation,
law enforcement officers may not continue questioning the suspect
“until an attorney has been made available or until the suspect
reinitiates the conversation.” Driver v. State, 307 Ga. 644, 646 (837
SE2d 802) (2020) (citation and punctuation omitted). See also
21
Edwards v. Arizona, 451 U.S. 477, 484-486 (101 SCt 1880, 68 LE2d
378) (1981). “A request for a lawyer must be clear and unambiguous;
the mere mention of the word ‘attorney’ or ‘lawyer[,]’ without more,
does not automatically invoke the right to counsel.” Taylor v. State,
304 Ga. 41, 48 (816 SE2d 17) (2018) (citation and punctuation
omitted). This standard requires a suspect to “articulate his desire
to have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a
request for an attorney.” Dozier v. State, 306 Ga. 29, 35 (829 SE2d
131) (2019) (citation and punctuation omitted). As a result,
“ambiguous or equivocal” statements that a reasonable officer in
light of the circumstances would have understood “only that the
suspect might be invoking the right to counsel” are not enough,
Taylor, 304 Ga. at 48 (emphasis in original), and “even a comment
that a suspect would like counsel to be present in the future is not a
clear and unambiguous request for counsel,” Dozier, 306 Ga. at 35
(citation and punctuation omitted). Moreover, a law enforcement
officer who conducts a custodial interrogation need not clarify “an
22
equivocal reference to counsel.” Golden v. State, __ Ga. ___ (852
SE2d 524, 531) (2020).
Pretermitting whether Lewis preserved his Fifth Amendment
right-to-counsel claim for ordinary appellate review, we conclude
that Lewis did not invoke his right to counsel unequivocally during
the April 24 three-way call. The audio recording of that call contains
two statements that arguably come close to invoking Lewis’s right
to counsel. First, after Lewis offered to assist investigators the next
day (“y’all can come get me tomorrow”) and Detective Demeester
followed up with specific questions about the Gault Street crimes,
Lewis asked: “If I reach out to my attorney tomorrow and tell them
that I want to talk to you, and tell them to come up with some kind
of deal, can that work Detective Demeester?” And second, in
response to Detective Demeester’s question, “Would you want to talk
to me without your attorney?” Lewis responded, “I would talk to you
without my attorney, if that’s what the attorney said, yes.”
But neither statement constituted a “clear and unambiguous”
invocation of Lewis’s Fifth Amendment right to counsel. Taylor, 304
23
Ga. at 48. To the contrary, Lewis’s first statement—which began
with “If I reach out to my attorney tomorrow”—reflects a desire to
speak with counsel at a future point in time, as opposed to a request
to have counsel present during the April 24 three-way phone call,
and it is well established that “a comment that a suspect would like
counsel to be present in the future is not a clear and unambiguous
request for counsel.” Dozier, 306 Ga. at 35 (citation and punctuation
omitted). See also Luallen v. State, 266 Ga. 174, 177-178 (465 SE2d
672) (1996) (holding that a suspect’s statement that she would “talk
to [her] lawyer tomorrow” was not a clear invocation of her right to
counsel and instead “indicated solely that she might invoke the right
to counsel at a later time”) (emphasis in original), overruled in part
on other grounds, as recognized in Clark v. State, 271 Ga. 6, 10 (515
SE2d 155) (1999); Lee v. State, 306 Ga. 663, 668 (832 SE2d 851)
(2019) (noting that “future-oriented references to obtaining
counsel”—such as “It ain’t gonna be too much more different from
when my lawyer get here” and “Can I just wait until I get a
lawyer?”—“are not clear requests for an attorney that require law
24
enforcement officers to immediately end an interview”); Kirby v.
State, 304 Ga. 472, 475-476 (819 SE2d 468) (2018) (holding that a
defendant’s statement “I’m going to go ahead and get a lawyer” was
not an unequivocal request to have counsel present during
interrogation because it was future-oriented); Moore v. State, 272
Ga. 359, 360 (528 SE2d 793) (2000) (holding that defendant’s
statement that “[a]s far as anything in detail, I’d like to talk to
[unintelligible] as far as who the public defender, or whoever my
attorney is going to be” was not a clear and unambiguous request for
counsel). Compare Robinson v. State, 286 Ga. 42, 45 (684 SE2d 863)
(2009) (“There was no ambiguity or equivocation in [defendant’s]
statement: ‘Uhm, yeah, I would like a lawyer.’”); Allen v. State, 259
Ga. 63, 65-66 (377 SE2d 150) (1989) (holding that the statement “I’ll
talk to you after I’ve talked to my lawyer” “could not have been
clearer or less equivocal”). And Lewis’s second statement—that he
would talk to Detective Demeester “without my attorney, if that’s
what the attorney said, yes”—likewise suggests that Lewis might
contact an attorney at a future point in time, as opposed to
25
expressing an unequivocal desire for counsel to be present during
the April 24 phone call. See, e.g., Dozier, 306 Ga. at 35-36; Luallen,
266 Ga. at 178.
Especially “when viewed in context,” Brooks v. State, 271 Ga.
698, 699 (523 SE2d 866) (1999), we cannot say that a reasonable
officer under the circumstances would have interpreted Lewis’s
statements to be “clear and unambiguous” expressions of a desire to
have counsel present during his April 24 phone call from jail, Taylor,
304 Ga. at 48. That context includes Lewis initiating the phone call
with his sister and Detective Demeester; Lewis’s persistence in
offering to speak with Detective Demeester and to assist in the
investigation; and Lewis’s failure to articulate a clear desire for
counsel to be present during the call, even after Detective Demeester
acknowledged that Lewis was represented by counsel and explained
that he had spoken with a separate attorney who suggested that he
would advise Lewis against speaking to Detective Demeester if
Lewis were, in fact, his client.
Because Lewis did not clearly and unambiguously invoke his
26
Fifth Amendment right to counsel during the April 24 three-way
phone call from jail, Lewis’s April 25 custodial interview—during
which he was advised of and waived his rights under Miranda and
then confessed to his role in the Gault Street crimes without ever
requesting a lawyer—was not the product of a violation of Lewis’s
right to counsel, and the trial court did not err by admitting it into
evidence. See, e.g., Dozier, 306 Ga. at 35-36; Luallen, 266 Ga. at 178.
3. Lewis contends that his trial counsel rendered ineffective
assistance by failing to object when the trial court declined the jury’s
request to explain a jury instruction the court had already provided.
We conclude that Lewis’s claim fails because he has failed to show
that his counsel was constitutionally deficient.
During the jury charge, the trial court instructed the jurors
that, among other things, they would need to determine whether the
statements made during Lewis’s April 25 custodial interview were
voluntary:
To be voluntary, a statement must be free and willingly
given without coercion, duress, threats, use of violence,
fear of injury, or any suggestions or promises of leniency
27
or reward. A statement induced by the slightest hope of
benefit or the remotest fear of injury is not voluntary. To
be voluntary, a statement must be the product of a free
will and not under compulsion or any necessity imposed
by others.
While the jury was deliberating, the jurors sent the following
question to the trial court: “[W]e cannot come to an agreement on
whether or not the defendant’s statement was given voluntarily or
involuntarily. Is it possible for us to receive a concise explanation of
the two, particularly suggestion or promise of leniency or reward?”
The court told Lewis’s trial counsel that it would tell the jurors that
it had already instructed them on all of the applicable law, and that
it could do so either in writing or by bringing the jurors out and
telling them in person. Lewis’s counsel responded that he did not
believe the court could “do anything more than tell them what you’ve
already told them.” The court then responded to the jurors in
writing, “You have been given all the applicable law.”
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
28
the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984). To satisfy the deficiency prong,
a defendant must demonstrate that his attorney “performed at trial
in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.”
Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013). This
requires a defendant to overcome the “strong presumption” that trial
counsel’s performance was adequate. See Strickland, 466 U.S. at
689; Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015). To
satisfy the prejudice prong, a defendant must establish a reasonable
probability that, in the absence of counsel’s deficient performance,
the result of the trial would have been different. Strickland, 466
U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. For the reasons
explained below, because Lewis has failed to show deficient
performance, his claim of ineffective assistance fails.
Lewis has failed to establish that his counsel’s failure to object
to the trial court’s response to the jury question was “objectively
29
unreasonable.” Romer, 293 Ga. at 344. To that end, our precedent
holds that because “[t]he need, breadth, and formation of additional
jury instructions are left to the sound discretion of the trial court,” a
“trial court ha[s] discretion to decline to answer the jury’s question
directly, and instead to direct the jurors to rely on instructions
previously given.” Stepp-McCommons v. State, 309 Ga. 400, 405-407
(845 SE2d 643) (2020) (rejecting appellant’s claim that trial counsel
was ineffective for failing to object when the jury asked “[d]oes the
definition of causing for death, close quote, in felony murder include
both direct and indirect causes?” and the trial court responded,
“[y]ou have been given the necessary definition in the charge; please
continue”) (citations and punctuation omitted); Redding v. State,
296 Ga. 471, 473 (769 SE2d 67) (2015) (rejecting appellant’s claim
that the trial court plainly erred when it directed the jury to its prior
instructions and the indictment in response to the question, “[d]oes
the defendant have to be the person who actually committed the
act[,] or can he be party to a group that committed the act,” because
“[t]he trial court had discretion to decline to answer the jury’s
30
question directly”).
Here, the trial court exercised its discretion in “recharging” the
jurors by referring them to the pattern instructions it had already
provided and by declining to try to explain further the phrase
“suggestions or promises of leniency or reward,” which was
contained in that pattern charge. 10 Lewis therefore has not shown
that trial counsel’s failure to object to the trial court’s proposed
response to the jury question was “objectively unreasonable”
considering “all the circumstances and in the light of prevailing
professional norms,” see Romer, 293 Ga. at 344, nor has he overcome
10 Moreover, Lewis’s case is distinguishable from other cases in which
this Court has identified reversible error with respect to a jury’s request for a
recharge. See, e.g., Dill v. State, 277 Ga. 150, 151-152 (587 SE2d 56) (2003)
(holding that the trial court committed reversible error when it responded to
the jury’s request for a definition of malice murder but altogether refused to
respond to a jury question relating to “the issues of presence and knowledge”);
Glisson v. Glisson, 268 Ga. 164, 164 (486 SE2d 167) (1997) (holding that, under
the circumstances of that case, the trial court committed reversible error when
it declined to recharge the jury and referred the jury to its previous charge
after the jury asked, “when you read about a person reading and signing a
paper, didn’t you say there was an exception between family members?” and
“didn’t you read something like ‘if there is any deception—to rule fraud,’”
noting that “[m]erely sending a message to the jury to consider the instructions
previously given may be insufficient under the circumstances,” and concluding
that the requested recharge “demonstrated the jurors’ lack of comprehension”
about key legal concepts at issue in that case) (citation and punctuation
omitted) (emphasis supplied).
31
the “strong presumption” that trial counsel’s performance was
adequate, see Strickland, 466 U.S. at 689. See also Ivey v. State, 305
Ga. 156, 162 (824 SE2d 242) (2019) (holding that the failure to raise
a meritless objection is not deficient performance). His claim of
ineffective assistance fails as a result. See Stepp-McCommons, 309
Ga. at 406.
4. Lewis contends that the trial court erred when it gave the
following jury instruction on corroborating the testimony of an
accomplice:
The [testimony] of a single witness, if believed, is
sufficient to establish a fact. Generally there is no legal
requirement of corroboration of a witness, provided you
find that the evidence is sufficient. An exception to this
rule is made in the case of felony murder where the
witness is an accomplice. The testimony of the accomplice
alone is not sufficient to warrant a conviction. The
accomplice’s testimony must be supported by other
evidence of some type, and that evidence must be such as
would lead to the inference of the guilt of the accused
independent of the testimony of the accomplice.
(Emphasis supplied). But because Lewis did not object to this
instruction at trial (a fact he concedes on appeal), we review his
enumeration for plain error only. See Doyle v. State, 307 Ga. 609,
32
611 (837 SE2d 833) (2020).
For an appellant to establish plain error,
[f]irst, there must be an error or defect—some sort of
deviation from a legal rule—that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and
finally, if the above three prongs are satisfied, the
appellate court has the discretion to remedy the error—
discretion which ought to be exercised only if the error
seriously affects the fairness, integrity or public
reputation of judicial proceedings.
State v. Kelly, 290 Ga. 29, 33 (718 SE2d 232) (2011) (citation and
punctuation omitted) (emphasis in original). Moreover, “[t]o prevail
on this argument requires [appellant] affirmatively to establish all
four prongs of the plain error test, which is a difficult standard to
satisfy.” Stepp-McCommons, 309 Ga. at 405. That means that
Lewis cannot prevail if he fails to meet even one element of the plain-
error test. See Denson v. State, 307 Ga. 545, 548 (837 SE2d 261)
(2019).
33
In most instances, the testimony of a single witness is
sufficient to establish a fact under Georgia law. But that is not so
in “felony cases where the only witness is an accomplice.” OCGA
§ 24-14-8. In felony cases, the accomplice’s testimony must be
corroborated by evidence that is “independent of the accomplice
testimony” and that “directly connect[s] the defendant with the
crime or lead[s] to the inference that he is guilty,” Dozier, 307 Ga. at
586.
Lewis argues that the trial court’s jury instruction erroneously
stated that the accomplice-corroboration requirement applied only
to felony murder, rather than to all felonies, and that the instruction
prejudiced the outcome of his trial by impermissibly authorizing the
jury to find him guilty on multiple felony counts on the basis of
Richardson’s testimony alone. But even assuming that the trial
court’s instruction constituted a “clear” error not “subject to
reasonable dispute,” Lewis’s claim fails because he cannot show that
the alleged error “affected the outcome of the trial court
proceedings.” Kelly, 290 Ga. at 33 (citation and punctuation
34
omitted). Indeed, even if the trial court had correctly instructed the
jury that it was required to corroborate an accomplice’s testimony
for all felony charges, the State presented a substantial amount of
other evidence that corroborated Richardson’s account—
corroborating evidence the jury was authorized to consider in
finding Lewis guilty of all of the felony counts at issue, including the
counts of criminal attempt to commit armed robbery, aggravated
assault, and possession of a firearm during the commission of a
felony. Specifically, Richardson’s testimony was corroborated by
Lewis’s April 25, 2011 confession, in which he detailed his
involvement in the armed robbery. It was also corroborated by
Danielle Parks, who testified that on March 25, 2011, she drove
Patterson to the Doo Drop Inn to meet up with Lewis; that Patterson
and Lewis were on the phone; and that after she dropped Patterson
off, he entered a Nissan Altima driven by Lewis. And it was
corroborated by evidence of Lewis’s fingerprints found inside and
outside the Nissan Altima; his text message about still having the
bullet proof vest; and the cell-site data indicating that his phone was
35
in the vicinity of the Gault Street house at the relevant time and
date. Moreover, the jury also found Lewis guilty of the most serious
charge, felony murder, and it is not disputed that the jury was
correctly instructed on accomplice corroboration on that count.
As a result, even though the trial court did not give the
accomplice-corroboration instruction as to the non-felony murder
counts, the State introduced a substantial amount of evidence that
corroborated Richardson’s testimony as to those counts, making it
unlikely that the instructional error at issue here affected the
outcome of Lewis’s trial. See Kelly, 290 Ga. at 33. His claim of plain
error therefore fails. 11 See, e.g., Lyman v. State, 301 Ga. 312, 318-
320 (800 SE2d 333) (2017) (holding that, although the trial court’s
complete failure to provide the accomplice-corroboration instruction
11 Lewis also claims that his trial counsel provided ineffective assistance
for failing to object to the accomplice-corroboration jury instruction. However,
as we have said repeatedly, the “test for harm under plain error review is
equivalent to the test in ineffective assistance of counsel cases for whether an
attorney’s deficient performance has resulted in prejudice of constitutional
proportions.” Martin v. State, 298 Ga. 259, 278 (779 SE2d 342) (2015),
disapproved on other grounds by Willis v. State, 304 Ga. 686, 706 n.3 (820 SE2d
640) (2018). As a result, because Lewis has failed to show prejudice, his
ineffective assistance claim also fails.
36
was a “clear error,” the appellant’s claim failed under plain-error
review because he could not establish that the error affected the
outcome of his trial). Compare Pindling v. State, __ Ga. __, Case No.
S21A0084 (decided April 5, 2021) (trial court plainly erred in failing
to give the accomplice-corroboration instruction where “almost all of
the evidence incriminating” the defendant came from an
accomplice).
Judgment affirmed. All the Justices concur, except LaGrua, J.,
disqualified.
37