Perkins v. State ( 2022 )

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.
In the Supreme Court of Georgia
Decided: May 17, 2022
S22A0158. PERKINS v. THE STATE.
WARREN, Justice.
Andreas Perkins was tried and convicted by a Fulton County
jury of malice murder and other crimes in connection with the
shooting death of Randy Menefee. 1 Perkins raises four claims of
1Menefee was killed on January 26, 2014. On May 2, 2014, a Fulton
County grand jury issued a multiple-count indictment against Perkins and
three other co-defendants: Jamal Chandler, Demario Franklin, and Jyquan
Mitchell. Perkins was charged with participation in criminal street gang
activity (Count 1), malice murder (Count 2), three counts of felony murder
(Counts 3-5, predicated on the crimes charged in Counts 8, 9, and 12), armed
robbery (Count 8); aggravated assault of Menefee (Count 9); aggravated
assault of Chekella Glover (Count 10), aggravated assault of Menefee’s minor
daughter (Count 11), burglary in the first degree (Count 12), cruelty to children
in the first degree (Count 13), and possession of a firearm during the
commission of a felony (Count 14). Perkins and his co-defendants were tried
twice jointly. At the first trial, held in June 2016, the trial court granted
Perkins and his co-defendants a directed verdict of acquittal on the gang count,
and the other counts ended in a mistrial after a hung jury. At the second trial,
held in March 2017, the jury found Perkins and Chandler guilty of all the
remaining counts and fully acquitted Franklin and Mitchell. On April 7, 2017,
the trial court sentenced Perkins to serve life in prison for malice murder, a
consecutive 20 years for armed robbery, four 20-year terms for Counts 10-13,
error on appeal: (1) the evidence presented at trial was insufficient
to support his convictions for burglary and two counts of aggravated
assault; (2) the trial court erred by denying Perkins’s motion for
mistrial after a witness improperly made a reference to gangs; (3)
the trial court abused its discretion when it admitted five photos
that allegedly implied that Perkins was involved in gang activity;
and (4) Perkins’s trial lawyer was constitutionally ineffective when
he failed to request certain jury instructions. Seeing no reversible
error, we affirm.
1. The evidence presented at trial showed the following.
Menefee and Chekella Glover were dating. Menefee lived with
Glover at her apartment in the Allen Temple Court apartment
each to run consecutively to the armed-robbery count, and a 5-year concurrent
term for possession of a firearm during the commission of a felony. The other
counts were merged or vacated by operation of law for sentencing purposes.
Perkins timely filed a motion for new trial on March 29, 2017, which he later
amended through new counsel. After a hearing, the trial court denied the
motion as amended on June 10, 2021. Perkins filed a timely notice of appeal.
The case was docketed in this Court for the term beginning in December 2021
and was orally argued on January 19, 2022.
2
complex, but he only slept there overnight “sometimes.” 2 On the
evening of January 26, 2014, Menefee was sleeping in Glover’s
apartment while Glover and J.R., Menefee’s daughter, were sitting
on the sofa watching television. Menefee’s other daughter, A.R., was
in an apartment below, having her hair braided. At one point,
Glover said that she thought that A.R. was “coming up because her
hair was almost . . . finished,” and J.R. heard “three light knocks” on
the door. When Glover opened the door, however, four armed men
wearing masks came in, with one of the men putting a gun in her
face and backing her into the apartment as the group demanded
money.
According to J.R., who was 11 years old at the time of the
crimes and later testified at trial, the four men were wearing “all
black,” “had masks on,” and carried guns, and one of the men had
dreadlocks that stretched “[a]lmost down the back.” One of the men
pointed a gun in J.R.’s face and demanded to know “where the money
2 When asked at trial, both Menefee’s sister and Menefee’s daughter,
J.R., agreed that Menefee was “living” at the Allen Temple apartments.
3
at.” As Menefee woke up, Glover called out to him and told him to
“[j]ust give them the money.” Menefee agreed, and Glover “ran to
the drawer and got some money. She got a whole bunch of stuff. She
picked up a lot of stuff and gave it to them.” After the men “took the
money, they shot [Menefee] in the chest and in the shoulder and
while he fell, he grabbed a pillow . . . and he got flipped over
somehow.” The men then left the apartment, and J.R. heard “a lot
of gunshots as they were going out the door.”
Glover’s description of the crimes was similar to J.R.’s. She
testified that she heard a knock at the door and thought it was
A.R.—but when she opened the door, four armed men came in
“demanding money.” One of the men wore Timberland boots. Glover
was afraid for her life because a gun was “in [her] face.” At that
point, Menefee woke up and told Glover to “give them the money out
[of] the drawer,” so Glover took cash from the drawer in the kitchen
and gave it to the men. The men then started “going out the door
and as they went out the door, they started shooting.” And “[w]hen
they went out the door, the last person turned around like slanted
4
as he was going out the door and started shooting inside the
apartment and that’s when—when the door closed, they was still
shooting in the hallway.” Glover further testified that Menefee
made money by selling drugs, that he sold the drugs from the
apartment, and that he typically kept $3,000 to $4,000 on his person.
In the kitchen was a “glass pot that [Menefee] used to cook []
cocaine.”
After the men left, J.R. went downstairs to find her sister.
When J.R. came back upstairs, she saw two unmasked men inside
Glover’s apartment who appeared to be the “guys [who] were in the
[apartment] shooting” minutes earlier. J.R. said they “looked kind
of familiar” because of “[t]he dreads, the hat that was in there, the
skull hat that they came back with, the dark-skinned dude came
back with, the black one, that looked familiar.” 3 Glover recognized
the two men as Perkins and Jamal Chandler, with whom she was
acquainted. In that regard, Glover testified that, several minutes
3 It is undisputed that Perkins had dreadlocks at the time the crimes
were committed.
5
after the masked men left her apartment, she opened the door
“outside to get help” and saw Perkins and Chandler on her “porch”
or “patio,” with Perkins wearing Timberland boots. Glover thought
it was “odd” for them to be there because there “was always shooting
in the apartments so how they know that the shooting came from
my apartment?” Perkins and Chandler came inside and told Glover
to “get the kids out” and “[g]et the stuff out” and that they were
“going to see about [Menefee].”
According to J.R., both men had guns and one of the men had
an “AK” or a “big gun” with a “strap around the shoulder.” The men
were “just walking around trying to get stuff out the house,” and
they took Menefee’s “[g]uns and money out of [a] drawer.” The men
also asked repeatedly, “What happened to [Menefee],” and they
asked J.R. “where [Menefee’s] personal stuff was, his gun and the
weed and stuff.” When J.R. responded that she did not know, the
men told her to “go back downstairs,” and she did. During that time,
Menefee was lying on the floor, “coughing up blood” and “trying to
say something.”
6
A.R. testified that, when she came upstairs to Glover’s
apartment after the shooting, she saw Menefee “on the floor with a
pillow over his chest,” “trying to breathe.” She also saw two men
“coming in and out taking stuff out the house. . . [l]ike I guess bowls
and stuff. Like spoons, stuff like that. Just stuff out the kitchen.”
A.R. testified that the two men were not trying to help Menefee and
that they told her and J.R. to leave the room. One of the men had
“pretty long” dreadlocks, “like probably back like past his
shoulders.”
Menefee died by the time the police arrived on the scene. An
autopsy revealed that he suffered a gunshot wound to his arm and
a fatal gunshot wound to his chest. A bullet was recovered from
Menefee’s body that a firearms examiner with the Georgia Bureau
of Investigation later testified was consistent with having been fired
from a revolver. Police officers found numerous shell casings and
bullets inside the apartment that had been fired from at least three
different firearms. At trial, a firearm and ballistics expert testified
that none of the shell casings were consistent “with an assault-style
7
rifle such as an AK.”
Menefee’s sister, Twanesa Broughton, was alerted to the
shooting shortly after it happened and drove to the scene. On
arrival, she saw “a lot of people out, police, ambulance.” Broughton
testified that Chandler came up to her and “started telling [her] how
he held [Menefee] and watched him take his last breath.” Broughton
did not observe any blood on Chandler, but noted that he “had on all
black that night.” Broughton saw Perkins, Demario Franklin, and
another co-defendant at Menefee’s funeral, which occurred a week
after the shooting.
Taliah Knox, who was acquainted with Perkins and the other
co-defendants, as well as with Menefee, testified that earlier on the
day of the crimes, she overheard Perkins, Chandler, Franklin, and
at least one other man talking “about a possible robbery that was
supposed to go on.” Knox testified: “I can’t recall everything but it
was like it needs to happen and then from there it was, like, how it
was going to be planned out or whatever.” Later that night, Knox
was conducting a “marijuana transaction” near the side of the
8
building where Glover lived when she “heard gunshots” and “noises
and stuff and . . . a conversation where it was, like, well, is he dead
or you think he dead or whatever.” She then saw “four males
running, ski masks on. One had dreads on the ski mask, the other
one no hair. They were running and one jumped over the . . . back
gate in the back and the other ones was running . . . like toward the
car.” Asked what the men were wearing, Knox testified that she saw
“Timberland boots, a pair of Air Max [shoes], pants, dark colored
pants.” She also saw the men take off their “ski masks,” revealing
them to be “Franklin, Jamal [Chandler], Andreas [Perkins], and the
other guy with the Air Max.” She saw the men carrying “a 9-
millimeter” and a “big gun,” which she also described as an “assault
rifle.”
Knox heard Chandler “cussing” and saying, in reference to
Menefee, “f**k that n***a.” Knox also heard “all” of the men
discussing that “the daughter may have seen it. It wasn’t—this s**t
wasn’t supposed to go down like that and what the hell they gone
do.” Later, during an interview with Detective Summer Benton,
9
Knox identified Perkins and the other three co-defendants in a
photographic lineup. 4
At trial, Detective Benton testified about other evidence that
implicated Perkins and his co-defendants in Menefee’s death.
Among other things, Detective Benton had interviewed Rayonda
Wynn, who had dated Chandler. 5 Wynn was with Chandler and
Perkins when they found out that Franklin had been arrested for
Menefee’s murder. Wynn told Detective Benton that Perkins and
Chandler “were extremely upset that Mr. Franklin was going to
snitch on them and their involvement in this case.” Wynn also told
Detective Benton that Chandler and Menefee “were not close and
that Mr. Chandler did not like Mr. Menefee at all and when Wynn
was told that [Chandler] was helping out [with matters after
Menefee’s death], she immediately thought that he was involved in
4 Knox was not asked to make an in-court identification.
5 Wynn testified at trial, but after she repeatedly responded “I don’t
remember” about what she said to Detective Benton during an earlier
interview, portions of her recorded interview with Detective Benton were
played for the jury.
10
the homicide.”
Detective Benton also interviewed Charmaine Turner, who
was braiding A.R.’s hair on the night of the murder. During that
interview, a recording of which was played for the jury, 6 Turner said
that she heard four or five gunshots that night, and shortly
afterward, she looked through the window and saw Perkins and
Chandler running, with Chandler holding a handgun and Perkins
holding a “big gun” that looked like a “chopper.” Turner identified
Perkins and Chandler from photographic lineups during the
investigation.
Perkins and Chandler, who ultimately elected not to testify at
trial, each gave voluntary statements to Detective Benton upon their
arrests about two weeks after the crimes and after being given
Miranda warnings. 7 Both men denied participating in the burglary
6The audio recording of Turner’s interview was played for the jury,
without objection, after she testified that she could not recall several
statements she made.
7 See Miranda v. Arizona, 384 U.S. 436, 471 (86 SCt 1602, 16 LEd2d 694)
(1966).
11
of Glover’s apartment and the shooting of Menefee, but both
admitted entering Glover’s apartment shortly after the crimes in the
apartment took place.
Among other things, Perkins told Detective Benton that “after
he heard the shooting, he ran down to Mr. Menefee’s home but before
he got all the way there, he went to another apartment, grabbed a
shotgun, came back, realized the police were probably on the way,
then ran back to that apartment, put the shotgun up and then came
back into the apartment . . . , and then kneeled down next to
[Menefee] and held him . . . and then the police arrived.” Perkins
said he was wearing “white jeans or white pants, a black top and tan
Timberland boots” that night and that “no one was in the apartment
with him when Mr. Menefee died.”
For his part, Chandler told Detective Benton that Menefee was
“like another brother to him,” that he was “holding” Menefee as he
was bleeding, and that “he was the one holding Mr. Menefee and no
12
one else was in the apartment when Mr. Menefee died.”8 Detective
Benton testified that she found this discrepancy “[e]xtremely odd.”
At trial, Perkins did not present any defense witnesses. But
during the cross-examinations of then-14-year old J.R. and of
Glover, Perkins’s lawyer and some of the counsel for Perkins’s co-
defendants tried to establish that Glover purposefully let the four
men inside the apartment the night Menefee was killed. In this
vein, J.R. testified on cross-examination about three “odd” events
that happened earlier on the day of the crimes. First, she went for
a walk with Glover and Glover’s son, during which they encountered
“a man with dreads” who was called “Chinese.” That man “threw a
thumbs up at [Glover] and then ran over there and said hey,” which
J.R. though was “kind of odd.” Second, Glover “was on the phone all
night and she was telling her friend . . . something about some cake
or something like that. They were going to pick up some cake. She
told her to jump over the gate.” Third, a person with “dreads” came
8 However, both Chandler and Perkins told Detective Benton that they
“didn’t have a drop” of Menefee’s blood on them.
13
to the apartment to buy marijuana, which J.R. thought was “odd”
because “when he came in, he was counting heads. It was like he
was counting heads. He was looking around at everybody.” J.R.
testified that this man “looked kind of like [Perkins],” but that she
was not certain about his identity.
J.R. further testified that, before Menefee went to sleep on the
night of the crimes, he said “not to answer the door for anyone” and
that Glover was “in a position to hear [him] say that.” Finally,
Glover admitted on cross-examination that the apartment door had
a peephole; that, before Menefee fell asleep, he told Glover not to
answer his phone; and that generally speaking, people would not be
granted entry into the apartment unless they had called Menefee
first. Glover could not recall whether Menefee said anything about
answering the door.
2. Perkins contends that the evidence was insufficient to
sustain his convictions on Count 10 (aggravated assault of Glover),
Count 11 (aggravated assault of J.R.), and Count 12 (burglary in the
first degree). For the reasons explained below, this enumeration of
14
error fails.
(a) With regard to the aggravated assault counts, Perkins
argues that the State failed to present evidence sufficient to prove
the allegations as charged in the indictment. He specifically
contends that each of the two counts at issue (Counts 10 and 11)
charged that Perkins committed the aggravated assaults “by
shooting at, toward, and in the direction of” the victims. But
according to Perkins, “no witness testified that Perkins actually
possessed a handgun,” and the evidence presented at trial did not
show that the armed intruders fired “at, toward, and in the direction
of” either J.R. or Glover. 9
When evaluating a challenge to the sufficiency of the evidence
as a matter of constitutional due process, we view all of the evidence
presented at trial in the light most favorable to the verdicts and ask
whether any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt of the crimes of which he was
9 Perkins characterizes this enumeration as a “fatal variance” between
the indictment and the proof at trial, but the argument he makes on appeal is
essentially about the sufficiency of the evidence.
15
convicted. See Jones v. State, 304 Ga. 594, 598 (820 SE2d 696)
(2018) (citing Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt
2781, 61 LE2d 560) (1979)). We leave to the jury “the resolution of
conflicts or inconsistencies in the evidence, credibility of witnesses,
and reasonable inferences to be derived from the facts.” Smith v.
State, 308 Ga. 81, 84 (839 SE2d 630) (2020).
Here, the jury was authorized to infer that the four armed men
who burglarized Glover’s apartment and shot Menefee fired “at,
toward, and in the direction of” Glover and J.R. On that point,
Glover testified that when she retrieved cash from the kitchen
drawer and gave it to the men, “they start[ed] going out the door and
as they went out the door, they started shooting.” She also testified
that, “[w]hen they went out the door, the last person turned around
like slanted as he was going out the door and started shooting inside
the apartment.” Likewise, J.R. testified that she heard “a lot of
gunshots as [the men] were going out the door.” According to both
J.R. and Glover, J.R. was in the living room when her father was
shot and killed, and Glover was in either the living room or the
16
kitchen. Photographs and a diagram of the apartment that were
admitted as evidence at trial show that the apartment was small,
that the living room and kitchen were connected, and that the door
through which the armed men left opened directly into the living
room. Viewed in the light most favorable to the verdicts, a jury
reasonably could infer from this evidence that—at the least—as the
armed men fled after burglarizing Glover’s apartment and shooting
Menefee, they shot from the doorway or outside the apartment
toward or into the apartment where J.R. and Glover remained.
Moreover, the jury was authorized to conclude that Perkins
was part of the group of men who shot at or toward J.R. and Glover.
To that end, the State presented evidence that Perkins and his co-
defendants were discussing plans to commit a robbery hours before
the crimes; that after the crimes, the same four men were seen
running out of Glover’s apartment building, carrying firearms,
taking off ski masks, and discussing the crimes; that Perkins and
Chandler re-entered Glover’s apartment shortly after Menefee’s
shooting under the guise of providing assistance; and that Knox and
17
Turner positively identified Perkins from photographic lineups as
one of the four men who committed the crimes. The jury was
therefore authorized to conclude that Perkins was at least a party to
the crime of the aggravated assaults of J.R. and Glover. See OCGA
§ 16-2-20 (a) (“Every person concerned in the commission of a crime
is a party thereto and may be charged with and convicted of
commission of the crime.”). See also Broxton v. State, 306 Ga. 127,
136-137 (829 SE2d 333) (2019) (holding that the evidence was
sufficient to support defendant’s convictions, including as a party to
a crime, as one of four gunmen who shot victims).
(b) Perkins contends that the evidence was not sufficient with
respect to his conviction for first-degree burglary because the State
did not establish that Glover’s apartment was also Menefee’s
“dwelling,” as charged in the indictment. See OCGA § 16-7-1 (b) (“A
person commits the offense of burglary in the first degree when,
without authority and with the intent to commit a felony or theft
therein, he or she enters or remains within an occupied, unoccupied,
18
or vacant dwelling house of another . . . .”). 10 We disagree.
At trial, evidence was presented that on the night of the crimes,
Menefee was sleeping over at Glover’s apartment while his minor
daughters were also there visiting. Multiple witnesses—including
Menefee’s sister and his daughter—confirmed that Menefee was
“living” in Glover’s apartment. And even though other evidence was
presented that Menefee only slept over at Glover’s apartment
“sometimes,” the jury was authorized to infer that Glover’s
apartment nonetheless constituted Menefee’s “dwelling.” See OCGA
§ 16-7-1 (a) (1) (“‘Dwelling’ means any building, structure, or portion
thereof which is designed or intended for occupancy for residential
use.”). See also Murphy v. State, 238 Ga. 725, 728-729 (234 SE2d
911) (1977) (noting that “‘ownership . . . is not an essential
ingredient to proving that the premises entered were ‘the dwelling
house of another’ within the meaning of our burglary law,” and
10 Count 12 of the indictment alleged, in relevant part, that Perkins and
his co-defendants committed burglary in the first degree when they, “on the
26th day of January, 2014, did without authority and with intent to commit a
theft therein, enter the dwelling house of Randy Jerome Menefee.”
19
holding that the victim’s testimony “that she lived with her parents,
that her father was R.M., and that she was at his home when the
crimes occurred . . . adequately established that the premises
entered by defendant were the ‘dwelling of R.L.M.’ as charged in the
[burglary count of the] indictment”); Frazier v. State, 352 Ga. App.
98, 101 (834 SE2d 107) (2019) (evidence that a victim “stayed in [a]
camper for two or three days at a time during deer-hunting season,
six or seven times a year” and that he “kept mattresses, lights, . . .
and other camping and hunting supplies in the camper” sufficient to
support the “dwelling” aspect of a burglary conviction). 11
Perkins also contends that the State failed to prove the
“without authority” element of first-degree burglary because Glover
opened the door for the men who then burglarized her apartment
11 Perkins cites a handful of Court of Appeals cases to support his
argument that the State failed to prove that Glover’s apartment constituted
Menefee’s “dwelling,” as alleged in the indictment. But none of those cases are
availing: one rejected a similar argument, see Edward v. State, 261 Ga. App.
57, 58 (581 SE2d 691) (2003); one held that a house under construction
satisfied the requirements of the burglary statute, see Sanders v. State, 293
Ga. App. 534, 537 (667 SE2d 396) (2008); and another held that a house that
was occasionally occupied by the victim constituted his “dwelling house,” see
Earnest v. State, 216 Ga. App. 271, 271 (543 SE2d 818) (1995).
20
and killed Menefee, and because there was “no evidence that Glover
refused to open the door or first asked the men to reveal their
identities.” This argument fails because J.R. testified that Menefee
told her “not to answer the door for anyone” that night, and both
J.R.’s and Glover’s testimony indicated that Glover opened the door
to the gunmen unwittingly, thinking that J.R.’s sister, A.R., was
returning from having her hair braided downstairs—not that four
armed men would barge into the apartment. Under these
circumstances, reasonable jurors could infer that Glover did not
authorize four masked, armed men to enter her apartment. See
Thomas v. State, 292 Ga. 429, 431-432 (738 SE2d 571) (2013) (in
rejecting appellant’s claim that the State did not prove the “without
authority” requirement of a burglary charge, noting that “merely
opening one’s front door in response to a knock is not, ipso facto, an
invitation to the visitors to come into one’s home—particularly to
strangers who come knocking in the middle of the night”—and
affirming the burglary conviction). The State therefore presented
sufficient evidence for a reasonable jury to conclude that Perkins
21
entered Menefee’s “dwelling” “without authority,” and that he was
guilty beyond a reasonable doubt of the first-degree burglary charge
of which he was convicted. See Jackson, 443 U.S. at 319. In sum,
the evidence presented at trial and outlined in part above was
sufficient as a matter of constitutional due process for a rational
trier of fact to have found Perkins guilty beyond a reasonable doubt
of the aggravated assault and burglary counts of which he was
convicted. See Jackson, 443 U.S. at 319; OCGA §§ 16-7-1; 16-5-21.
3. Perkins contends that the trial court erred when it denied
his motion for mistrial after a witness impermissibly made a
reference to a gang and when the trial court gave a curative
instruction that repeated the word “gang.”
As an initial matter, it is undisputed that the trial court had
entered a pretrial order excluding all evidence of gang activity or
affiliation in Perkins’s second trial. However, during the direct
examination of Menefee’s sister, Broughton, the following exchange
occurred:
[PROSECUTOR:] At any point did you attempt to look
22
up any information on Instagram for any information
associated with this case?
[BROUGHTON:] I did. In the beginning, like I said, it
was a lot of vigils, a lot of stuff that we wasn’t aware of, a
lot of people and things were being said so we went on
Instagram. I particularly went on Instagram and screen
sho[t]ted items that referred to the defendants being a
part of a gang.
[PROSECUTOR:] Okay. Now, when you say screen
shot[t]ed, what exactly are you referring to?
[BROUGHTON:] It’s when you go on and you can
actually take a picture of a picture that’s there.
(Emphasis supplied.) At that point, Chandler’s attorney objected,
and Perkins and his co-defendants collectively moved for a mistrial
on the ground that Broughton’s “gang” reference violated the
pretrial order. 12
During the bench conferences that followed, the prosecutor
agreed generally that the State was prohibited from introducing
12Perkins contends that the trial court’s denial of the motion for mistrial
was particularly harmful because Broughton’s reference to a gang was related
to five photographs that were later admitted into evidence. According to
Perkins, those photographs “showed the jury why Broughton thought the
defendants were in a gang.” But as we explain below in Division 4, we cannot
say that those photographs—without more—conveyed signs of gang activity
that would be obvious to a reasonable juror.
23
gang-related evidence, but insisted that Broughton’s reference was
“inadvertent.” The prosecutor told the court that he had instructed
Broughton not to discuss anything related to gang activity or to use
the word “gang,” and that his questioning “was not intended to elicit
that answer,” but rather was “intended to lay a foundation to get the
social media evidence” admitted, showing that the co-defendants
spent time together taking photographs that appeared to show them
mourning Menefee’s death. The trial court adjourned for the day
and took the matter under advisement.
The next day, before the jury entered the courtroom, the trial
court asked the parties: “Are you ready to talk about the motion for
mistrial? . . . I think the defense attorneys made a very timely
objection. So timely that I think with a curative instruction, we can
continue.” The court stated its proposed curative instruction, which
instructed the jurors not to “consider any evidence that the[ ]
defendants are members of a gang or involved in gang activities.”
Before bringing the jury in to give them the proposed instruction,
the court asked the parties for “any input.” The defendants’
24
attorneys were permitted to confer, and Chandler’s counsel then
responded, “we have discussed it. . . . [W]e feel that any curative
instruction would be insufficient. It’s a bell that cannot be unrung.
It’s inflammatory. Our position is simply [that] an instruction is
insufficient.”
When the jury was brought back into the courtroom, the trial
court gave the following curative instruction, thus implicitly
denying the defendants’ motion for a mistrial:
Ladies and gentlemen of the jury, yesterday the last
question asked by the prosecutor of the witness on the
witness stand was this: At any point did you attempt to
look up any information on Instagram or any information
associated with this case. Her response was I did, which
is the answer to the question. But then she went further
and volunteered information that was nonresponsive to
the question not asked by the prosecutor and it is: In the
beginning like I said, it was a lot of vigils, a lot of stuff
that we wasn’t aware of, a lot of people and things being
said so we went on Instagram. I particularly went on
Instagram and screen shot[t]ed items that referred to the
defendants being part of a gang. That was nonresponsive,
not called for by the prosecutor’s question. It was
volunteered.
I charge you and instruct you that these defendants
are not being prosecuted as members of a gang or any
gang activity whatsoever. The Court on its own motion
25
strikes the nonresponsive part of this witness’s answer
and therefore [it] is not evidence before you. I remind you
that your oath that you took, you swore to make your
decision based upon the evidence. That evidence is no
longer evidence for you. You may not consider any
evidence that the defendants are members of a gang or
involved in gang activities from any evidence in this trial
henceforth, including but not limited to the part that this
witness’s testimony said that I have labeled
nonresponsive. You should in fact disabuse your minds of
it completely. It should not be part of your discussions or
deliberations or take any part in your decision making
process. That being said, we may continue with the
examination.
Neither Perkins nor his co-defendants renewed objections to the
instruction or the motion for mistrial after the instruction was given,
and the prosecutor continued examining Broughton about the
photos she found on Instagram.13
“[T]he decision to grant a mistrial is within the discretion of
the trial court and will not be disturbed on appeal unless there is a
showing that a mistrial is essential to the preservation of the right
to a fair trial.” Walker v. State, 306 Ga. 44, 49 (829 SE2d 121) (2019)
13 Other than the five photos Broughton identified from Instagram,
Perkins does not allege that any other gang-related evidence was introduced
at trial.
26
(citation and punctuation omitted). Pretermitting whether Perkins
properly preserved this claim, we conclude that the trial court acted
within its discretion to conclude that a mistrial was not necessary to
preserve Perkins’s right to a fair trial. The prosecutor had
instructed Broughton not to make any reference to gangs;
Broughton mentioned the word “gang” only once and did not
mention Perkins’s name in connection with that reference; and
before the trial court allowed Broughton’s testimony to continue, it
instructed the jury to disregard the reference to a “gang.” See
Wilkins v. State, 308 Ga. 131, 137 (839 SE2d 525) (2020) (trial court
did not abuse its discretion in denying mistrial where witness’s
potentially inadmissible hearsay reference to the “murder weapon”
was “a passing reference that was contrary to the directions given
by the prosecutor; the statement did not link the weapon to
Appellant; [and] the jury was promptly instructed to disregard the
comment . . .”).
Moreover, the trial court’s curative instruction to the jury
included a strong and clear admonition that “these defendants are
27
not being prosecuted as members of a gang or any gang activity
whatsoever” and that “[y]ou may not consider any evidence that the
defendants are members of a gang or involved in gang activities from
any evidence in this trial henceforth, including but not limited to the
part that this witness’s testimony said that I have labeled
nonresponsive.” The trial court concluded by instructing the jury,
“[y]ou should in fact disabuse your minds of it completely.”
It is well established that a trial court “can negate the
potentially harmful effect of improperly introduced evidence by
prompt curative instructions rather than by granting a mistrial.”
Walker, 306 Ga. at 49, and juries “are presumed to follow curative
instructions in the absence of proof to the contrary,” Rosser v. State,
308 Ga. 597, 603 (842 SE2d 821) (2020) (citation and punctuation
omitted). Perkins does not argue that this presumption does not
apply here, but rather that Broughton’s testimony “could only be
remedied by a mistrial” because the curative instruction itself
referenced the word “gang” four times. We disagree and conclude
that the trial court did not abuse its discretion by providing a
28
curative instruction that (among other things) acknowledged
Broughton’s singular reference to a gang, informed the jury that the
court had stricken that aspect of Broughton’s testimony as
nonresponsive, and made clear that the jury was not permitted to
“consider any evidence that the defendants are members of a gang
or involved in gang activities from any evidence in this trial.” See
Lee v. State, 306 Ga. 663, 669 (832 SE2d 851) (2019) (“[A] trial court
acts within its discretion when it provides adequate curative
instructions to the jury to cure any prejudice stemming from the
introduction of improper evidence.”). See also Smith v. State, 302
Ga. 699, 701-702 (808 SE2d 692) (2017) (holding that trial court’s
“thorough curative instruction,” mentioning “drugs” four times in
instructing the jury that a witness’s reference to drugs was to be
disregarded, was “sufficient to counter any alleged harm caused by
the witness’s brief statement”); Coleman v. State, 301 Ga. 720, 722
(804 SE2d 24) (2017) (concluding there was “no error in the trial
court’s refusal to grant a mistrial,” in part because the court gave a
“lengthy curative instruction to the jury, telling the jurors that the
29
[testimony in question] was inadmissible . . . and that they should
disregard that evidence in its entirety, not hold it against
[defendant] in any way, and not weigh it or consider it in any
manner in [their] deliberations in this case”) (punctuation omitted).
Perkins’s claim therefore fails.
4. Perkins contends that the trial court abused its discretion in
admitting five photographs—State’s Exhibits 87, 129, 167, 168 and
169—Broughton referenced in her testimony. It is undisputed that
all of these exhibits are photographs taken at memorials or vigils
that were held for Menefee several days after his death. The
photographs Perkins objected to depicted the following: Exhibit 87
shows Chandler wearing pants labeled with “RIP” in red ink;
Exhibit 129 shows Perkins holding a red candle while wearing a red
undergarment that is visible and a red or maroon jacket and holding
a rifle; Exhibit 167 shows Chandler wearing his “RIP” pants,
Franklin wearing a red hat, making hand gestures, and smoking,
and another man making a similar hand gesture and wearing red
shoes and a hat with “SMM” on it; Exhibit 168 shows Franklin
30
making hand gestures; and Exhibit 169 shows Franklin in Glover’s
apartment smoking, holding a red candle, and wearing red gloves.
Perkins argues that the photographs were “highly prejudicial” and
violated OCGA § 24-4-403 (“Rule 403”) because the clothing worn by
the men depicted in the photographs suggested a gang affiliation
and the men could have been viewed as “making signs that could be
construed as gang[-]affiliated.”
“The admission of evidence lies within the sound discretion of
the trial court, whose decision will not be disturbed on appeal absent
a clear abuse of discretion.” Harris v. State, Case No. S21A1242,
2022 WL 451871, at *5, __ Ga. __ , __ (869 SE2d 461) (Feb. 15, 2022)
(citation and punctuation omitted). Under Rule 403, “[r]elevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice[.]” “But as we have
repeatedly explained: Rule 403 is an extraordinary remedy, which
should be used only sparingly, and the balance should be struck in
favor of admissibility.” Carston v. State, 310 Ga. 797, 803 (854 SE2d
684) (2021) (citation and punctuation omitted). Therefore, when we
31
review the Rule 403 balancing test, “we look at the evidence in a
light most favorable to its admission, maximizing its probative value
and minimizing its undue prejudicial impact,” id. (citation and
punctuation omitted), and “the trial court’s decision will not be
disturbed unless there is a clear abuse of discretion,” West v. State,
305 Ga. 467, 473 (826 SE2d 64) (2019) (citation and punctuation
omitted).
At trial, and again in evaluating Perkins’s motion for new trial,
the trial court considered Perkins’s arguments and the State’s
response that the colors and gestures were incidental and that
testimony would not be, and was not, elicited about their meaning.
In denying Perkins’s motion for new trial, the trial court concluded
that the five photographs “were relevant to show multiple facts at
issue at trial and . . . that their probative value was not substantially
outweighed by a danger of unfair prejudice.” It also found that all
of “the pictures were intrinsic evidence and thus Rule 404 (b) [OCGA
§ 24-4-404 (b)] did not apply to it.”
We see no abuse of discretion in the trial court’s conclusion
32
under Rule 403 that the probative value of the photographs was not
substantially outweighed by the danger of unfair prejudice. First,
the only photograph that depicts Perkins is Exhibit 129, which
shows him in possession of a rifle slung over his shoulder by a strap
while holding a red candle. That image corroborated multiple
witnesses who testified that they saw Perkins at or around the time
of the crimes carrying a gun that they characterized as an “assault
rifle,” “AK,” “chopper,” or “big gun” with a “strap around the
shoulder”—evidence that was indisputably probative of the State’s
case. Under these circumstances, the trial court did not abuse its
discretion by concluding that the probative value of the photograph’s
depiction of Perkins holding a rifle was not substantially outweighed
by the danger of unfair prejudice. 14 See Harris, 2022 WL 451871, at
14 Moreover, to the extent Perkins complains that he was wearing some
red clothing and holding a red candle in Exhibit 129, thus implying that he
was affiliated with a gang, we cannot say that a reasonable juror would reach
such a conclusion—especially given the curative instruction the trial court
gave during Broughton’s testimony, and given that the jury did not hear any
evidence connecting any specific color to gang activity. Cf. Jones v. State, 310
Ga. 886, 890-891 (855 SE2d 573) (2021) (in evaluating whether trial counsel
failed to present evidence of other peoples’ gang membership, noting that
“aside from testimony that some people at the gathering were flashing gang
33
*5, __ Ga. at __ (no abuse of discretion in admitting social media
posts, which included a photograph of a gun that defendant claimed
to possess, because they were relevant and did not violate Rule 403);
Lyons v. State, 309 Ga. 15, 23 (843 SE2d 825) (2020) (no abuse of
discretion in admitting photograph from social media showing
defendant in possession of a gun because it “was relevant to show
that [he], at some point, possessed the type of gun used in the crimes
at issue,” and “[t]he probative value of this evidence was not
substantially outweighed by its prejudice”).
The other four photographs depicted only Perkins’s co-
defendants. But even assuming, without deciding, that the trial
court abused its discretion in admitting these photographs, any such
error was harmless. “The test for determining nonconstitutional
harmless error is whether it is highly probable that the error did not
contribute to the verdict.” Cook v. State, 312 Ga. 299, 302 (862 SE2d
signals, the defense presented no evidence [at trial] that any of the attendees
was a gang member” and “the State countered the defense’s argument” that
“several people seen in [a] video . . . and wearing red hoodies were members of
the Bloods gang” with “evidence that the red clothing merely represented the
colors of Cairo High School”).
34
510) (2021) (citation and punctuation omitted). And “[i]n
determining whether the error was harmless, we review the record
de novo and weigh the evidence as we would expect reasonable
jurors to have done so.” Kirby v. State, 304 Ga. 472, 478 (819 SE2d
468) (2018) (citation and punctuation omitted).
Here, as with Exhibit 129, we cannot say that a reasonable
juror would discern solely from pants with “RIP” on them, a hat with
“SMM” on it, hand gestures, or red items—aspects of the four
photographs Perkins points to on appeal—as suggesting that he and
his co-defendants were affiliated with a gang. 15 Indeed, the State
made no argument at trial that the photographs depicted gang
affiliation or activity. Neither has Perkins presented any evidence
showing that the photographs depicted gang affiliation or activity.
Moreover, as with Exhibit 129, the four other photographs were
admitted into evidence shortly after the trial court instructed the
jury not to “consider any evidence that the defendants are members
15 Perkins argues on appeal that “SMM” stands for “Sex, Money,
Murder,” a division of the Bloods gang, and that the hand gestures depicted in
the photographs are gang signs.
35
of a gang or involved in gang activities from any evidence in this
trial,” which diminished any potential prejudicial effect of the
photographs, and the State also presented strong independent
evidence of Perkins’s guilt apart from the photographs. See Rosser,
308 Ga. at 603 (“[J]uries are presumed to follow curative
instructions in the absence of proof to the contrary.”); Lofton v. State,
309 Ga. 349, 357 (846 SE2d 57) (2020) (admission of photographs
showing defendant with handguns was harmless in part because the
State “presented strong independent evidence of [the defendant’s]
guilt”). We thus conclude that it is highly probable that admission
of the four photographs did not contribute to the verdicts against
Perkins. See Lofton, 309 Ga. at 357-358. Cf. Cushenberry v. State,
300 Ga. 190, 197 (794 SE2d 165) (2016) (any error under the old
Evidence Code in admitting allegedly prejudicial comments made by
other people about gang-related photographs obtained from social
media was harmless because the comments were not made “by or
directly related to the defendant” and therefore had little probative
36
value or prejudicial effect). 16
5. Perkins contends that he received constitutionally
ineffective assistance when his trial counsel failed to request a
pattern jury instruction on “witness leniency” and an instruction on
accomplice corroboration. See Georgia Suggested Pattern Jury
Instructions, Vol. II: Criminal Cases (“Pattern Instruction”) §§
1.31.8017 and 1.31.92 (2016).18
16 Perkins also contends that admission of all of five photographs violated
OCGA § 24-4-404 (b) (“Rule 404 (b)”), which generally prohibits “[e]vidence of
other crimes, wrongs, or acts” to prove character but permits such evidence for
“other purposes.” As noted above, however, the trial court concluded that “the
pictures were intrinsic evidence” that was not subject to Rule 404 (b), and we
see no abuse of discretion in that ruling. See Gialenios v. State, 310 Ga. 869,
882 (855 SE2d 559) (2021) (no abuse of discretion in admitting as intrinsic
evidence photographs related to defendant’s conduct the days and weeks after
the murder), disapproved on other grounds by Outlaw v. State, 311 Ga. 396(858 SE2d 63) (2021). See also Lofton, 309 Ga. at 357 (noting that trial court
properly admitted a social-media photograph posted “just hours before the
shooting in which he was holding the handgun used to kill [the victim]” as
intrinsic evidence).
17Pattern Instruction § 1.31.80 provides:
In assessing the credibility of a witness, you may consider any
possible motive in testifying, if shown. In that regard you are
authorized to consider any possible pending prosecutions,
negotiated pleas, grants of immunity or leniency, or similar
matters. You alone shall decide the believability of the witnesses.
18Pattern Instruction § 1.31.92 provides:
The testimony of the accomplice alone is not sufficient to warrant
37
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
the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695
(104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355,
356 (689 SE2d 280) (2010). 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); see also Strickland, 466
U.S. at 687-688. 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
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. . . .
38
deficient performance, the result of the trial would have been
different. See Strickland, 466 U.S. at 694. “If an appellant fails to
meet his or her burden of proving either prong of the Strickland test,
the reviewing court does not have to examine the other prong.”
Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
(a) Perkins’s first claim centers on Knox’s testimony during
Perkins’s first trial, when she testified that there was “no reason”
she was near Glover’s apartment on the night of Menefee’s murder,
in contrast to her testimony during the second trial that she was
there to purchase marijuana. 19 Perkins now argues that his trial
counsel was deficient because he did not request Pattern Instruction
§ 1.31.80 at the second trial.
To begin, Perkins has not established that Knox had any
“pending prosecutions, negotiated pleas, grants of immunity or
leniency, or similar matters” that would make Pattern Instruction
§ 1.31.80 applicable. But in any event, the trial court adequately
19 This admission came to light during Knox’s cross-examination at
Perkins’s second trial when she admitted to “[l]ying about the marijuana.”
39
covered the applicable law in the instructions it gave the jury on
witness credibility and impeachment. See Lee v. State, 281 Ga. 776,
777-778 (642 SE2d 835) (2007) (the “possible motive, interest, or bias
of the State’s witnesses” was “adequately covered” by the instruction
that the jury “was the arbiter of each witness’s credibility and that
it should give consideration to each witness’s interest or lack thereof
in the outcome of the case”). See also Note to Pattern Instruction
§ 1.31.80 (citing Lee and stating that Pattern Instruction
§ 1.31.80 is “[a]dequately covered by [a] general credibility charge”).
In so doing, the trial court explained that the jury had the duty to
determine witnesses’ credibility and that it could consider all the
facts and circumstances of the case—including the witnesses’
“interest or lack of interest in the outcome of the case and their
personal credibility as [the jury] observe[d] it,” “evidence offered to
attack or cast doubt upon or challenge the credibility or believability
of or cause [the jury] to disbelieve any such witnesses,” and “any
inconsistency in a witness’s pretrial statements and testimony when
compared to the same witness’s trial testimony.” As a result,
40
Perkins has not established that he suffered prejudice from his trial
counsel’s failure to separately request Pattern Instruction § 1.31.80,
and his claim fails. See Stafford v. State, 312 Ga. 811, 821 (865 SE2d
116) (2021) (holding that because jury was “properly and adequately
instructed on proximate cause, . . . [a]n additional jury charge on
unforeseen or intervening cause was unnecessary,” and the
defendant “ha[d] not shown prejudice from the lack of such request”
to support his claim of ineffective assistance of counsel).
(b) Perkins contends that his trial counsel performed
deficiently because Glover could be considered Perkins’s accomplice
and Perkins’s trial counsel should have requested Pattern Jury
Instruction 1.31.92.20
The record shows that at the charge conference, the trial
court—recognizing that none of the co-defendants had requested an
20 This pattern instruction is based on OCGA § 24-14-8, which provides
that “[t]he testimony of a single witness is generally sufficient to establish a
fact. However, in . . . felony cases where the only witness is an accomplice, the
testimony of a single witness shall not be sufficient. Nevertheless,
corroborating circumstances may dispense with the necessity for the testimony
of a second witness.”
41
accomplice-corroboration charge—asked the parties if they wanted
the charge to be given. Perkins’s trial counsel said nothing in
response, and his co-defendants’ attorneys responded that they did
not think any accomplice testimony had been offered and did not
believe an accomplice-corroboration charge was necessary. The trial
court replied, “nobody requested it so I’m giving you an opportunity
and you all agree that’s not necessary.” Neither Perkins’s counsel,
nor any of his co-defendants’ counsel, responded further, and the
trial court did not charge the jury on accomplice corroboration.
On appeal, Perkins makes little effort to explain how or why
the evidence introduced at trial established that Glover could be
considered an accomplice in the crimes committed against her, her
boyfriend, and his child in Glover’s own apartment; he primarily
points to his trial counsel’s response at the hearing on Perkins’s
motion for new trial agreeing that there was “slight evidence” to
support requesting an accomplice-corroboration charge at trial. 21
21 Perkins implies that Glover was an accomplice based on evidence
introduced at trial that included J.R.’s testimony that she observed what she
42
However, before he was asked to consider whether slight evidence
supported such a charge, Perkins’s trial counsel was asked if there
was “any strategic reason for not requesting the accomplice
corroboration instruction,” and he responded that his “defense
[theory] was built around sufficiency of the evidence.” He further
testified that he did not “believe that [the accomplice corroboration]
significantly help[ed] under the facts and circumstances of this
case.” On this record, where the evidence supporting an accomplice-
corroboration charge was at best slight, we cannot say that it was
objectively unreasonable for trial counsel to make that strategic
choice about Perkins’s defense theory. See Manner v. State, 302 Ga.
877, 884 (808 SE2d 681) (2017) (even where evidence sufficient to
warrant accomplice-corroboration charge, “it was not objectively
unreasonable for counsel to conclude that any benefit to [the
defendant] in instructing the jury that [his accomplice’s] testimony
characterized as an “odd” conversation between Glover and a man with a
dreadlock hairstyle earlier on the day of Menefee’s murder and evidence that
Glover, without first looking through her apartment door’s peephole, opened to
door to four armed men despite Menefee’s instructions earlier that night “not
to answer the door for anyone.”
43
required corroboration was outweighed by the instruction’s
potential conflict with the theory of defense”). See also Vasquez v.
State, 306 Ga. 216, 230 n.13 (830 SE2d 143) (2019) (“We have
previously recognized that, in the context of a claim of ineffective
assistance of counsel, it may be a reasonable trial strategy for the
defense to forgo a request for an accomplice-corroboration charge
even though it was warranted by the evidence presented at trial.”)
(citations omitted). Perkins has not established that his trial
counsel performed deficiently, so his claim of ineffective assistance
fails. 22
Judgment affirmed. All the Justice concur.
Perkins also argues that the cumulative prejudice of the alleged trial-
22
counsel deficiencies and trial-court errors entitle him to a new trial. See State
v. Lane, 308 Ga. 10, 17-18 (838 SE2d 808) (2020). For purposes of a
cumulative-error analysis, the assumed trial court evidentiary error is the
admission of four photographs, which we have already determined to be
harmless, and the assumed deficient performance of counsel is failing to
request Pattern Instruction § 1.31.80, which we have already determined did
not prejudice Perkins. We have considered the cumulative effect of this
presumed evidentiary error and presumed deficient performance of counsel
together and conclude that their collective effect is not sufficiently harmful to
outweigh the strength of the properly admitted evidence of Perkins’s guilt so
as to warrant a new trial. See Lofton, 309 Ga. at 366-367; Lyons, 309 Ga. at
26.
44