Clark v. State ( 2023 )

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: January 18, 2023
S22A0950. CLARK v. THE STATE.
WARREN, Justice.
William Clark was convicted of felony murder and other crimes
in connection with the shooting death of Anthony King and the
aggravated assault of Anthony Davis. 1 In this appeal, Clark
1The crimes occurred on August 3, 2012. In October 2012, a Richmond
County grand jury indicted Clark and Jeremiah Kelly for malice murder,
felony murder (based on the aggravated assault of King), two counts of
aggravated assault (one against Davis and the other against his brother,
Travis Davis), and three counts of possession of a firearm during the
commission of a crime (based on the murder of King, the aggravated assault of
Davis, and the aggravated assault of Travis). Clark alone was tried from
October 11 to 14, 2016; the jury found him not guilty of malice murder and the
aggravated assault and firearm offense against Travis, but guilty of the
remaining crimes. The trial court sentenced him to serve life in prison without
the possibility of parole for felony murder, 20 consecutive years for the
aggravated assault against Davis, and five consecutive years each for the two
counts of possession of a firearm during the commission of a crime. Kelly, who
was tried in March 2015, was found not guilty of malice murder but guilty of
the remaining counts against him; we address his appeal today in a separate
opinion. See Kelly v. State, ___ Ga. ___ (Case No. S22A0979, Jan. 18, 2023).
Clark filed a timely motion for new trial, which he amended twice through new
counsel. After hearings in November 2021 and February 2022, the trial court
contends that the evidence presented at his trial was legally
insufficient to support his convictions for the crimes against King;
the trial court applied the wrong standard in admitting evidence of
an audio recording of his interview with the lead investigator for his
case; the trial court committed plain error by failing to instruct the
jury on knowledge, grave suspicion, mere presence, and mere
association; and his trial counsel provided constitutionally
ineffective assistance by failing to request those instructions and by
failing to file a demurrer to the indictment. Each of these claims is
meritless, so we affirm.
1. The evidence presented at Clark’s trial showed the
following. 2 On the evening of August 3, 2012, King, Davis, and
Davis’s brother, Travis Davis (“Travis”), hung out and drank alcohol.
denied the motion in March 2022 but modified Clark’s sentence for felony
murder to life with the possibility of parole. Clark then filed a timely notice of
appeal, and his case was docketed to the August 2022 term of this Court and
submitted for a decision on the briefs.
2 “Because this case requires an assessment of the harmful or prejudicial
effect of certain alleged trial court errors and deficiencies of trial counsel, we
lay out the evidence in detail and not only in the light most favorable to the
verdicts.” Rawls v. State, 310 Ga. 209, 210 n.2 (850 SE2d 90) (2020).
2
Around 11:00 p.m., Travis drove them to a convenience store in
Augusta to buy beer. Travis stayed in his SUV while King and Davis
walked toward the store.
According to Davis, he and King recognized two young men,
whom he identified at trial as Clark and Jeremiah Kelly, outside the
store.3 Davis told King that he believed that Clark and Kelly had
fired shots at him about two weeks earlier. King stopped to talk to
them while Davis went inside the store. A surveillance video
recording from the convenience store showed King, Clark, and Kelly
calmly talking in front of the store at 11:00 p.m. A few minutes later,
King went inside the store and Clark and Kelly walked out of view
of the cameras. Davis testified that King then said something like
“them little f**kers outside.” King and Davis purchased some beer
and left the store.
Travis dropped off King and Davis on a nearby street so they
could walk to a friend’s house. Davis testified as follows. As he and
King walked through a parking lot, they saw Clark and Kelly again.
3 Clark was then 16 years old, and Kelly was 15 years old.
3
King said something to them; the four men started arguing; and
Clark and Kelly pulled out guns. King and Davis were not carrying
guns. An Oldsmobile pulled up, and two men, who were later
identified as Curtis Washington and Treyvon Archie, told Clark and
Kelly to put their guns away. Moments later, Travis pulled up in
his SUV and tried to “defuse the situation.” Clark then fired his gun
into the air; Kelly started shooting; and Clark shot toward Davis.
King got in the SUV and began to drive away as Davis and Travis
ran, and Kelly told Clark to “chase after them.” Davis fled to a
nearby restaurant, where he called 911.
Travis recounted a similar story. According to Travis,
moments after he dropped off King and Davis, he had “a bad feeling,”
so he drove back toward them. Two men, whom he identified at trial
as Clark and Kelly, were pointing guns at King and Davis. Travis
was not carrying a gun. An Oldsmobile was parked in the middle of
the street, but the men in it did not appear to be involved in the
argument. Travis got out of his SUV and told Clark and Kelly to put
their guns down. Clark then fired his gun, and Kelly started
4
shooting. Davis ran away, and Kelly told Clark, “we’ve got one
trying to get away, get him.” Clark chased Davis, firing two more
shots, as Kelly walked toward the SUV and said “uh-huh, pow.”
Travis ran, but soon saw King driving the SUV and jumped in the
passenger seat. Travis then saw that King had been shot. The SUV
crashed into a tree, and Travis got out and ran away. 4
Investigators who responded to the scene found King, who had
been shot once in the chest, in the driver’s seat of the SUV. He was
transported to a hospital, where he later died. A medical examiner
recovered a bullet fragment from King’s chest, and investigators
found three .380 shell casings at the scene. A firearms examiner
later concluded that all of the shell casings had been fired from the
same .380 pistol and that the bullet fragment was fired from a .380
4 A surveillance video recording from the parking lot where the shooting
occurred, the quality of which the prosecutor described as “poor,” was admitted
into evidence. Davis and the lead investigator for the case testified that the
video showed the following. King and Davis walked through the parking lot
around 11:20 p.m.; an Oldsmobile pulled up, followed by an SUV; Davis and
Travis ran away as a man, whom Davis identified at trial as Clark, chased
them; and Travis got in the passenger side of the SUV, which drove through
the parking lot and out of view.
5
pistol. Investigators did not find any guns at the scene.
Investigators identified Clark and Kelly as suspects, and Clark
and Kelly turned themselves in the day after the shooting. The lead
investigator interviewed Clark that evening; the interview was
audio-recorded and later played for the jury. Initially, Clark denied
being present during the shooting, but he eventually told the
following story. He and Kelly were outside the convenience store
when two men approached and asked if they had been involved in a
prior shooting. When they denied any involvement, the men left,
but Clark and Kelly soon encountered them again in a nearby
parking lot. The men “kept walking up on them” and again asked if
they had been involved in the shooting. Clark said “no.” Clark’s
friend Washington then pulled up in an Oldsmobile and asked what
was happening. Clark responded that he did not know. An SUV
then drove up, and “a big dude jumped out.” Kelly fired his gun as
Clark fled. 5
5Washington and Archie did not testify. The lead investigator testified
that Washington said during an interview that he did not see Clark with a gun
6
The lead investigator testified that his investigation indicated
that Kelly fired the shot that killed King, and it appears that the
State’s theory of the case was that Kelly was the shooter and Clark
was a party to the crimes. Clark did not testify, and the trial’s
opening statements and closing arguments were not transcribed.
2. Clark contends that the evidence presented at his trial was
insufficient as a matter of constitutional due process to support his
convictions for felony murder (based on aggravated assault against
King) and possession of a firearm during the commission of that
crime. 6 Specifically, Clark argues that the State failed to prove that
he participated in killing King because the evidence showed that
that night and that Kelly shot at King, Davis, and Travis. The investigator
also testified that Archie said during an interview that both Clark and Kelly
had guns that night. Clark did not object to this testimony at trial, and he does
not contend in this appeal that the testimony was improperly admitted.
6 Clark does not challenge the sufficiency of the evidence supporting his
convictions for aggravated assault against Davis or possession of a firearm
during the commission of that crime, and this Court no longer routinely
reviews evidentiary sufficiency sua sponte, except with respect to murder
convictions resulting in the death penalty. See Davenport v. State, 309 Ga. 385398-399 (846 SE2d 83) (2020).
7
Kelly was the shooter. We reject that argument.7
In evaluating 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 consider whether
any rational juror could have found the defendant guilty beyond a
reasonable doubt of the crimes of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979); Perkins v. State, 313 Ga. 885, 891 (873 SE2d 185) (2022).
“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.’” Perkins, 313 Ga. at 891 (citation
7 In arguing about the sufficiency of the evidence, Clark asserts that the
State was required to charge him with aggravated assault against King
because his felony-murder conviction was based on that crime. That claim,
however, relates to the sufficiency of the substance of the indictment—not the
sufficiency of the evidence presented at trial. Because Clark did not challenge
the substance of the indictment in the trial court, he has forfeited this claim.
See Hinkson v. State, 310 Ga. 388, 397 (850 SE2d 41) (2020) (explaining that
“‘a general demurrer may be raised after jeopardy has attached and at any
time during trial,’ as well as ‘in the form of a motion in arrest of judgment after
a verdict in the same term of court’”) (citation omitted). Clark also raises this
issue in the context of a claim that his trial counsel provided constitutionally
ineffective assistance by failing to file a demurrer to the indictment (an
argument he also made in his amended and second amended motion for new
trial). We address that claim in Division 5 (b).
8
omitted).
To support Clark’s conviction for felony murder, the evidence
presented at trial had to show that he proximately caused King’s
death, either directly or as a party to the crime, while in the
commission of an aggravated assault with a deadly weapon. See
OCGA § 16-5-1 (c). See also Mathews v. State, 314 Ga. 360, 365 (877
SE2d 188) (2022) (“‘Felony murder requires only that the defendant
possessed the requisite criminal intent to commit the underlying
felony—in this case, aggravated assault, which also does not require
intent to kill.’”) (citation omitted). The trial court instructed the jury
on aggravated assault, which OCGA § 16-5-21 (a) (2) defines, in
pertinent part, as an “assault[] . . . [w]ith a deadly weapon.” The
court also instructed on parties to a crime under OCGA § 16-2-20.
That statute says, among other things, that “[e]very person
concerned in the commission of a crime[,]” including one who
“[i]ntentionally aids or abets in the commission of the crime” or
“[i]ntentionally advises [or] encourages . . . another to commit the
crime” is “a party thereto and may be charged with and convicted of
9
commission of the crime.” OCGA § 16-2-20 (a) & (b) (3)-(4).
It is well established that “‘[a] person who does not directly
commit a crime may be convicted upon proof that the crime was
committed and that person was a party to it.’” Glenn v. State, 306
Ga. 550, 553 (832 SE2d 433) (2019) (citation omitted). See also
Crawford v. State, 312 Ga. 452, 455-456 (863 SE2d 75) (2021) (“‘Even
where it is undisputed that the victim was shot by another person,
every person concerned in the commission of the crime may be
convicted of the crime.’”) (citation omitted). Conviction as a party to
a crime requires proof of a common criminal intent, which the jury
may infer from the defendant’s presence, companionship, and
conduct with another perpetrator before, during, and after the
crimes. See, e.g., Glenn, 306 Ga. at 553. However, mere presence
at the crime scene is insufficient to make someone a party to a crime.
See, e.g., id.
Although the evidence presented at trial indicated, and the
parties did not dispute, that Clark did not personally fire the shot
that killed King, there was ample evidence from which the jury
10
reasonably could infer that Clark and Kelly shared a common
criminal intent with respect to the shooting. When properly viewed
in the light most favorable to the verdicts, the evidence showed that
Clark and Kelly encountered King and Davis outside the
convenience store shortly before the shooting—a fact supported by
surveillance video. A few minutes later, when Clark and Kelly saw
King and Davis again, the men argued. Clark and Kelly each pulled
out a gun; Clark fired first; and Kelly then began shooting. Kelly
approached the SUV, and at some point, King was shot and killed.
In addition, Kelly told Clark to chase Davis, and Clark followed that
instruction, firing more shots as he ran after him. Clark then lied
during his interview with the lead investigator, claiming that he had
not been present during the shooting.
Thus, even if Clark did not himself shoot King, the evidence
presented at trial was still sufficient as a matter of constitutional
due process to authorize a rational jury to find him guilty beyond a
reasonable doubt as a party to the crimes of felony murder based on
aggravated assault and possession of a firearm during that offense.
11
See, e.g., Mathews, 314 Ga. at 365 (holding that the jury was
authorized to conclude that the appellant was guilty of felony
murder based on aggravated assault, even though the evidence
presented at trial did not establish whether he or his co-defendant
shot the murder victim, because they shared a common criminal
intent); Williams v. State, 307 Ga. 689, 691 (838 SE2d 314) (2020)
(holding that the evidence presented at trial was legally sufficient to
prove that the appellant, who did not shoot the victim, was guilty as
a party to the murder, partly because he and some of the other
assailants were in a car together, argued with the victim, and pulled
out guns just before the shooting). 8
3. Clark contends that the trial court applied the “wrong
standard” in admitting into evidence the audio recording of his
interview with the lead investigator. He argues that because he was
8 To the extent Clark also challenges his felony-murder and firearm
convictions under OCGA § 24-14-6, even if we assume that the evidence
presented at trial was entirely circumstantial, it was nonetheless sufficient to
exclude every reasonable hypothesis other than that of his guilt. See id. (“To
warrant a conviction on circumstantial evidence, the proved facts shall not only
be consistent with the hypothesis of guilt, but shall exclude every other
reasonable hypothesis save that of the guilt of the accused.”).
12
a juvenile at the time of his interview, see OCGA § 15-11-2 (10) (B)
(defining “[c]hild”), the trial court was required to consider each of
the nine factors set forth in Riley v. State, 237 Ga. 124 (226 SE2d
922) (1976), to determine whether he knowingly and voluntarily
waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (86
SCt 1602, 16 LE2d 694) (1966).
As we will explain more below, we take this opportunity to
clarify that Riley held that trial courts are to use a totality-of-the-
circumstances test to determine whether a juvenile knowingly and
voluntarily waived his constitutional rights, and we reaffirm that
holding today.9 However, requiring courts to apply the specific nine-
factor framework Riley set forth for assessing the totality of the
circumstances is in tension with the totality-of-the-circumstances
test itself, and we therefore disapprove language in Riley and later
9 We note that we have also applied Riley’s totality-of-the-circumstances
test in evaluating whether a juvenile’s statement to law enforcement officials
was voluntarily made as a matter of due process. See, e.g., State v. Powell, 315
Ga. 5, 12 (880 SE2d 189) (2022); Lester v. State, 310 Ga. 81, 85 n.7 (849 SE2d
425) (2020). Clark does not claim a due-process violation here.
13
cases suggesting that the nine-factor framework is required or
exclusive. 10 Finally, because the record in this case does not indicate
that the trial court failed to apply a totality-of-the-circumstances
test, Clark’s claim fails.
(a) We begin with a discussion of Riley and other cases from
the United States Supreme Court and this Court that have
established the legal standard that a trial court must apply in
determining whether a juvenile knowingly and voluntarily waived
his rights under Miranda.
It appears that Riley was one of the earliest cases in which this
10 Our concern about Riley is not new: several of us recently have
expressed concerns about Riley’s nine-factor framework. See State v. Powell,
315 Ga. 5, 12 n.5 (880 SE2d 189) (2022) (noting that “[a] number of us have
recently expressed concerns about the prescriptive and restrictive nature of
Riley’s nine-factor analysis for juveniles”); State v. Burton, 314 Ga. 637, 650
(878 SE2d 515) (2022) (Pinson, J., concurring, joined by Boggs, C.J., and
Warren, Bethel, and McMillian, JJ.) (expressing doubts about the “juvenile-
specific,” nine-factor analysis in Riley); Daniels v. State, 313 Ga. 400, 418 (870
SE2d 409) (2022) (Nahmias, C.J. concurring specially in part, joined by Boggs,
P.J. and Warren, J.) (expressing “doubts about how a trial court is to make,
and an appellate court is to review, a ruling based on a nine-factor, totality-of-
the-circumstances test”) (emphasis in original).
14
Court considered a waiver of rights by a juvenile. 11 Riley argued
that he did not knowingly and voluntarily waive his rights under
Miranda because he was a juvenile and his parents were not present
when he was interviewed by the police. See Riley, 237 Ga. at 127.
This Court declined to determine that such a waiver was
involuntary per se, holding instead that “the question of a voluntary
and knowing waiver depends on the totality of the circumstances[,]
and the state has a heavy burden in showing that the juvenile did
understand and waive his rights.” Id. at 128. Relying on a decision
of the United States Court of Appeals for the Fifth Circuit that
similarly declined to apply a per se rule excluding evidence of a
juvenile’s incriminating statements to the police, the Riley Court
went on to say that
age alone is not determinative of whether a person can
11 Three years before Riley was decided, this Court summarily held in
Williams v. State, 231 Ga. 508 (202 SE2d 433) (1973), that the trial court did
not err by admitting into evidence a juvenile’s statement to the police, noting
that the statement was made in the presence of his mother and after he was
advised of his rights under Miranda. See id. at 509. In addition, a few months
before the decision in Riley, we similarly held (with little discussion) in
Crawford v. State, 236 Ga. 491 (224 SE2d 365) (1976), that the trial court did
not err by admitting evidence of a juvenile’s confession, noting that he had been
given Miranda warnings and that his statement was voluntary. See id. at 492.
15
waive his rights. Instead, the question of waiver must be
analyzed by a consideration of several factors. These are
“(1) age of the accused; (2) education of the accused; (3)
knowledge of the accused as to both the substance of the
charge . . . and the nature of his rights to consult with an
attorney and remain silent; (4) whether the accused is
held incommunicado or allowed to consult with relatives,
friends or an attorney; (5) whether the accused was
interrogated before or after formal charges had been filed;
(6) methods used in interrogation; (7) length of
interrogations; (8) whether vel non the accused refused to
voluntarily give statements on prior occasions; and (9)
whether the accused has repudiated an extra judicial
statement at a later date.”
Id. at 128 (quoting West v. United States, 399 F2d 467, 469 (5th Cir.
1968)).12 The Riley Court then disapproved a Georgia Court of
Appeals case, Freeman v. Wilcox, to the extent it could be read as
requiring an automatic exclusion of a juvenile’s statement to the
police, and summarily concluded that Riley knowingly and
voluntarily waived his rights, without expressly applying any of the
nine factors it laid out before reaching its conclusion. See id. at 128
12 In West, the Fifth Circuit rejected the appellant’s contention that
because he was a juvenile when he was interviewed by an investigator, he was
“per se incapable of waiving” his rights under Miranda. 399 F2d at 468.
Noting that “[f]actors considered by the courts in resolving this question
include” the nine factors later listed in Riley, the court held that whether a
juvenile knowingly and voluntarily waived his rights did not depend on “age
alone,” but rather on “the totality of circumstances.” Id. at 469.
16
(disapproving Freeman v. Wilcox, 119 Ga. App. 325 (167 SE2d 163)
(1969)).
Three years later, the United States Supreme Court in Fare v.
Michael C., 442 U.S. 707 (99 SCt 2560, 61 LE2d 197) (1979),
examined whether a juvenile had invoked his rights pursuant to
Miranda by requesting to speak with his probation officer. See id.
at 710-716. Concluding that the juvenile’s request was not a per se
invocation of his rights, the Court explained that “the determination
whether statements obtained during custodial interrogation are
admissible against the accused is to be made upon an inquiry into
the totality of the circumstances surrounding the interrogation, to
ascertain whether the accused in fact knowingly and voluntarily
decided to forgo his rights to remain silent and to have the
assistance of counsel.” Id. at 724-725. “This totality-of-the-
circumstances approach is adequate to determine whether there has
been a waiver even where interrogation of juveniles is involved.” Id.
at 725. The Court further explained,
[w]e discern no persuasive reasons why any other
17
approach is required where the question is whether a
juvenile has waived his rights, as opposed to whether an
adult has done so. The totality approach permits—
indeed, it mandates—inquiry into all the circumstances
surrounding the interrogation. This includes evaluation
of the juvenile’s age, experience, education, background,
and intelligence, and into whether he has the capacity to
understand the warnings given him, the nature of his
Fifth Amendment rights, and the consequences of
waiving those rights.
Id. at 725.
Thus, our holding in Riley—that a totality-of-the-
circumstances test is used to determine whether a juvenile
knowingly and voluntarily waived his constitutional rights—is
consistent with the totality-of-the-circumstances approach for
juvenile waiver that was later established in Fare. And in the
decades following Riley and Fare, this Court has repeatedly held
that trial courts are to apply a totality-of-the-circumstances test in
evaluating the admissibility of a juvenile’s statement. See, e.g.,
Williams v. State, 238 Ga. 298, 302-303 (232 SE2d 535) (1977)
(explaining that in Riley, “[w]e found that ‘the question of a
voluntary and knowing waiver depends on the totality of the
circumstances” and holding that “under the totality of the
18
circumstances[,] . . . the trial court did not err in admitting [the
juvenile defendant’s] confession”); Crawford v. State, 240 Ga. 321,
323-324 (240 SE2d 824) (1977) (explaining that Riley “adopted a
totality of the circumstances test” and holding that “[c]onsidering all
the circumstances,” the State failed to prove “from the totality of the
circumstances that the juvenile made a voluntary and knowing
waiver” of her constitutional rights); Massey v. State, 243 Ga. 228,
228-229 (253 SE2d 196) (1979) (“In Riley, this court adopted a
totality of the circumstance test to be used in considering whether a
juvenile waived his right to remain silent.”); Smith v. State, 263 Ga.
363, 364 (434 SE2d 465) (1993) (noting that Riley established a
“totality of the circumstances test” and holding that the juvenile
knowingly and voluntarily waived his rights under Miranda,
“considering the totality of the circumstances”); McKoon v. State,
266 Ga. 149, 150 (465 SE2d 272) (1996) (citing Riley for the
proposition that “[t]he admissibility of statements by juveniles
depends upon whether, under the totality of the circumstances,
there was a knowing and intelligent waiver of constitutional rights”
19
and holding that the trial court “properly determined that under the
totality of the circumstances, McKoon freely, knowingly, and
voluntarily waived his Miranda rights”); Berry v. State, 267 Ga. 605,
610-611 (481 SE2d 203) (1997) (explaining that a juvenile’s waiver
of rights is “considered under the totality of the circumstances” and
holding that the “evidence in its entirety” and “in the context of the
whole” supported the trial court’s determination that the juvenile
knowingly and intelligently waived his constitutional rights); Nhek
v. State, 271 Ga. 245, 246 (517 SE2d 521) (1999) (citing Riley for the
proposition that juvenile “waiver is assessed under the totality of
the circumstances” and holding that “the [trial] court did not err in
finding that, considering the totality of the circumstances, Nhek
knowingly and voluntarily waived his rights”); Brooks v. State, 271
Ga. 875, 876 (525 SE2d 696) (2000) (explaining that Riley stood for
the proposition that the “question of knowing and intelligent waiver
by [a] juvenile depends on [the] totality of the circumstances” and
upholding the trial court’s determination that under the “totality of
the circumstances,” the juvenile defendant knowingly waived his
20
rights under Miranda); State v. Rodriguez, 274 Ga. 728, 728-729
(559 SE2d 435) (2002) (explaining that whether a juvenile has made
a knowing and intelligent waiver of his constitutional rights
“depends on the totality of the circumstances,” and concluding that
under the totality of the circumstances particular to that case, the
State had not met its burden of demonstrating that the juvenile
knowingly, intelligently, and voluntarily waived his constitutional
rights); Norris v. State, 282 Ga. 430, 431 (651 SE2d 40) (2007) (citing
Riley and Fare for the proposition that “[e]ven where, as here, a
juvenile is involved, the question of whether there was a knowing
and intelligent waiver of constitutional rights depends on the
totality of the circumstances surrounding a police interrogation” and
holding that “[c]onsidering the totality of the circumstances,” the
trial court did not err in concluding that the juvenile knowingly and
voluntarily waived her rights); Green v. State, 282 Ga. 672, 673 (653
SE2d 23) (2007) (explaining that “[t]his court, in Riley, held that ‘the
question of a voluntary and knowing waiver [by a juvenile] depends
on the totality of the circumstances’” and concluding that “[u]nder
21
the totality of the circumstances, we agree with the trial court that
there was a knowing and voluntary waiver of the right to remain
silent”); Allen v. State, 283 Ga. 304, 305-306 (658 SE2d 580) (2008)
(recognizing that Riley held that “[t]he admissibility of statements
by juveniles depends upon whether, under the totality of the
circumstances, there was a knowing and intelligent waiver of
constitutional rights” and holding that under all of the
circumstances, the two juvenile defendants knowingly and
voluntarily waived their constitutional rights); State v. Lee, 298 Ga.
388, 389 (782 SE2d 249) (2016) (citing Fare in explaining that a
juvenile’s waiver of his rights under Miranda depends on the totality
of the circumstances and holding that “the trial court properly
concluded based on the totality of the circumstances that Lee did not
knowingly and intelligently waive his rights before giving his
custodial statement”); Love v. State, 309 Ga. 833, 836 (848 SE2d 882)
(2020) (explaining that a juvenile’s waiver of rights depends on the
totality of the circumstances and holding that “under the totality of
the circumstances” the trial court did not err in determining that
22
the juvenile knowingly and voluntarily waived his rights).
Because the totality-of-the-circumstances test set forth in Riley
and its progeny is consistent with United States Supreme Court
precedent, we reaffirm that test today. 13 But, as discussed more
below, language in Riley and many of the cases that followed it also
suggested that assessing the totality of the circumstances required
applying a specific nine-factor framework. Because requiring
application of a fixed set of factors is inherently in tension with a
totality-of-the-circumstances test, we disapprove any such
language.
(b) As we mentioned above, after we correctly held in Riley that
whether a juvenile knowingly and voluntarily waives his
13 Indeed, if Riley’s holding were inconsistent with the totality-of-the-
circumstances test that Fare later established, we would be obligated to
overrule Riley, because we must follow the United States Supreme Court’s
instructions on how to determine, as a matter of federal constitutional law,
whether a juvenile has knowingly and voluntarily waived the rights protected
by Miranda. See, e.g., Ringold v. State, 304 Ga. 875, 878 (823 SE2d 342) (2019)
(explaining that “it is a fundamental principle that this Court is ‘bound by the
Constitution of the United States as its provisions are construed and applied
by the Supreme Court of the United States’” and that “‘[e]ven the venerable
doctrine of stare decisis does not permit us to persist in an error of federal
constitutional law’”) (emphasis in original; citations omitted).
23
constitutional rights “depends on the totality of the
circumstances[,]” the Court continued on by saying that “the
question of waiver must be analyzed by a consideration of several
factors. These are . . .” and listed nine specific factors.14 That
language improperly suggested that in determining whether a
juvenile knowingly and voluntarily waived his rights under
Miranda, trial courts should examine the totality of the
circumstances by mechanically applying those nine enumerated
factors. But proper application of a totality-of-the-circumstances
test “mandates . . . inquiry into all the circumstances surrounding
the interrogation.” Fare, 442 U.S. at 725 (emphasis supplied). See
also, e.g., United States v. Rivera, 825 F3d 59, 63-64 (1st Cir. 2016)
(explaining, in the context of determining whether there was
sufficient probable cause to issue a search warrant under the Fourth
Amendment, that “totality of the circumstances” “means that all
14 We note that although Riley’s factors were derived from West, that case
said that “[f]actors considered by the courts in resolving [the] question [of
juvenile waiver] include” before listing the nine factors later enumerated in
Riley. See West, 399 F2d at 469 (emphasis supplied). In other words, the nine
factors listed in West were not exclusive.
24
material ‘circumstances should be considered’”) (citation omitted);
United States v. Melton, 782 F3d 306, 311 (6th Cir. 2015) (noting, in
the context of determining whether a criminal defendant’s
admission during a revocation proceeding that he violated the
conditions of his supervised release was knowing and voluntary,
that “‘the totality of the circumstances means exactly that—all the
circumstances should be considered,’” and “‘courts should beware of
assigning talismanic significance to any single fact or circumstance’”
as “‘each case is quite likely to be sui generis’”) (citation omitted).
Indeed, any prescriptive or fixed list of factors by its very nature
risks undermining a totality-of-the-circumstances test by suggesting
that certain potentially relevant factors are not worthy of
consideration, on one hand, and appearing to mandate consideration
of other factors that may not be relevant in a particular case, on the
other.
Thus, Riley’s list of nine specific factors, which this Court said
25
“must be analyzed” 15 in applying a totality-of-the-circumstances test
to determine whether a juvenile knowingly and voluntarily waived
his rights, is in tension with the totality-of-the-circumstances test
itself—and thus with this Court’s holding in Riley—because such a
test requires that trial courts consider all of the relevant
circumstances surrounding the juvenile’s interview with law
enforcement officials. See Fare, 442 U.S. at 725. And given that in
a number of cases decided after Riley, this Court perpetuated the
dicta in Riley that set forth the nine-factor framework of analysis as
part of a totality-of-the-circumstances inquiry and used language
incorrectly suggesting that trial courts are required to analyze each
of those factors or are required to analyze those factors exclusively,
we disapprove any language in those cases indicating that the nine-
15 As we mentioned above, the Riley Court announced in dicta its list of
nine factors after holding that “the question of a voluntary and knowing waiver
depends on the totality of the circumstances,” and the factors were not
dispositive of the Court’s conclusion that the trial court correctly determined
that Riley knowingly and voluntarily waived his rights under Miranda. See
Riley, 237 Ga. at 128.
26
factor framework is required or exclusive. 16 Moreover, we make
16 See, e.g., Williams, 238 Ga. at 302-303 (explaining that Riley held that
whether a juvenile knowing and voluntarily waived his constitutional rights
depends on the totality of the circumstances (as noted above), but saying that
“the totality of the circumstances is to be determined by consideration of the
nine factors set out in West” and listing those factors); Crawford, 240 Ga. at
323-325 (explaining and applying a totality-of-the-circumstances test (as noted
above), and stating that “[t]he court in Riley . . . set forth several of the factors
to be considered among the totality of the circumstances” before listing the
Riley factors); Massey, 243 Ga. at 228-229 (applying a totality-of-the-
circumstances test (as noted above), but briefly analyzing each of the Riley
factors); Lane v. State, 247 Ga. 19, 20-21 (273 SE2d 397) (1981) (saying that a
totality-of-the-circumstances test is used to determine juvenile waiver, but
then stating that “[s]everal factors are considered by this court in applying the
‘totality of the circumstances’ test to the statement of a minor. They are . . .”
and listing the Riley factors); Marshall v. State, 248 Ga. 227, 228-230 (282
SE2d 301) (1981) (noting that Riley held that “‘the question of a voluntary and
knowing waiver depends on the totality of the circumstances,’ to be analyzed
by a consideration of nine factors” and then listing and applying the Riley
factors); Howe v. State, 250 Ga. 811, 812-813 (301 SE2d 280) (1983) (noting
that “Riley . . . adopted a totality of the circumstances test,” but listing and
applying the nine Riley factors and concluding that “[b]ased upon the totality
of the circumstances, as reflected in the nine-factor analysis,” the trial court
properly admitted the juvenile defendant’s statement); Couch v. State, 253 Ga.
764, 765 (325 SE2d 366) (1985) (saying that “[t]he question of voluntary and
knowing waiver of rights by a juvenile depends upon an analysis of nine
factors,” but then concluding that the trial court properly admitted the
juvenile’s statement “[c]onsidering all the circumstances”); J.E.W. v. State, 256
Ga. 464, 467 (349 SE2d 713) (1986) (saying that in Riley, we held that the
question of waiver “depends on the totality of the circumstances to be analyzed
by a consideration of nine factors” and then listing the Riley factors) (citation
and punctuation omitted); State v. McBride, 261 Ga. 60, 63 (401 SE2d 484)
(1991) (mentioning that the trial court applied a totality-of-the-circumstances
test to determine whether the juvenile defendants waived their rights under
Miranda, but saying that “[i]n determining this issue nine factors are to be
considered” and listing the Riley factors); Smith, 263 Ga. at 364 (citing Riley
for the proposition that “[w]hether a juvenile has made a knowing and
27
voluntary waiver of his rights depends on the totality of the circumstances” (as
noted above), but then saying “with consideration given to nine specific factors”
and listing the Riley factors in a footnote); Henry v. State, 264 Ga. 861, 862
(452 SE2d 505) (1995) (holding that whether a juvenile defendant knowingly
and voluntarily waived his rights depends on the “totality of the
circumstances,” but saying that a trial court “must consider” the nine Riley
factors); McKoon, 266 Ga. at 150 (explaining and applying a totality-of-the-
circumstances test (as noted above), but saying that the “analysis involves the
application of a nine part test” and listing the Riley factors); Berry, 267 Ga. at
610-611 (applying a totality-of-the-circumstances test (as noted above), but
saying that “[t]he analysis involves the application of the nine-part test
outlined in Riley”); Gilliam v. State, 268 Ga. 690, 692 (492 SE2d 185) (1997)
(explaining that whether a juvenile knowingly and intelligently waived his
constitutional rights is “assessed under the totality of the circumstances,” but
then “[a]pplying the nine-factor test” in Riley); Hanifa v. State, 269 Ga. 797,
804-805 (505 SE2d 731) (1998) (saying that “[s]ince Hanifa was a juvenile when
she made the incriminating statement to police, the trial court correctly
considered the nine factors set forth in Riley . . . in determining whether Hanifa
made a knowing and intelligent waiver of constitutional rights,” without
mentioning the totality-of-the-circumstances test); Nhek, 271 Ga. at 246
(explaining that juvenile waiver is “assessed under the totality of the
circumstances” (as noted above), but saying that the Court was “[a]pplying the
nine-factor test of McBride and Riley”); Brooks, 271 Ga. at 876 (explaining and
applying a totality-of-the-circumstances test (as noted above), but stating that
McBride set “forth nine factors to be considered when a juvenile makes an
incriminating statement”); Jackson v. State, 272 Ga. 191, 194 (528 SE2d 232)
(2000) (noting that the trial court concluded that the juvenile knowingly and
voluntarily waived his rights under the totality of the circumstances, but
saying that “[t]he court specifically considered the factors set forth in Riley . . . ,
the test for considering the voluntariness of a juvenile’s statement”); Chapman
v. State, 273 Ga. 865, 869 (548 SE2d 278) (2001) (concluding that the trial court
“did not err in finding that, considering the totality of the circumstances,
Chapman knowingly and voluntarily waived his rights,” but saying that a
“court is to consider” the nine Riley factors and listing the factors); Rodriguez,
274 Ga. at 728-729 (explaining and applying a totality-of-the-circumstances
test (as noted above), and listing the Riley factors as those “[a]mong the factors
to be considered”); James v. State, 275 Ga. 387, 388 (565 SE2d 802) (2002)
(concluding that the juvenile defendant knowingly and intelligently waived her
rights “[c]onsidering the totality of the circumstances,” but noting that the trial
28
court “consider[ed] the nine factors set forth in Riley”); Murray v. State, 276
Ga. 396, 397-398 (578 SE2d 853) (2003) (concluding that the juvenile
defendant’s statement was knowingly and voluntarily given “[c]onsidering the
totality of the circumstances,” but quoting the Riley factors); Norris, 282 Ga.
at 431-432 (citing Fare and applying a totality-of-the-circumstances test (as
noted above), but quoting the factors listed in Rodriguez as those “[a]mong the
factors to be considered”); Green, 282 Ga. at 673-674 (applying a totality-of-the-
circumstances test to conclude that the juvenile knowingly and voluntarily
waived his right to remain silent (as noted above), but listing and applying the
Riley factors); Allen, 283 Ga. at 305-306 (applying a totality-of-the-
circumstances test to determine whether the juvenile defendants knowingly
and voluntarily waived their constitutional rights (as noted above), but saying
that “[t]he analysis involves the application of a nine part test” and listing the
Riley factors); Oubre v. Woldemichael, 301 Ga. 299, 305-307 (800 SE2d 518)
(2017) (applying Riley to determine whether a juvenile’s statement was
voluntarily made as a matter of due process and explaining that Riley requires
an evaluation of the totality of the circumstances, but saying that “[i]n
determining whether a juvenile has given a statement voluntarily, a court
considers nine factors set forth in Riley”); Lester v. State, 310 Ga. 81, 85-88 &
n.7 (849 SE2d 425) (2020) (repeatedly explaining that juvenile waiver depends
on the totality of the circumstances, but quoting the factors listed in Riley and
noting that waiver under the Riley test differs from “a more general totality-
of-the-circumstances due process analysis”); Bedford v. State, 311 Ga. 329, 334
(857 SE2d 708) (2021) (saying that the State bears the burden of showing that
a juvenile waived his rights under “‘the totality of the circumstances,” but that
“the court must consider nine factors in making that determination” and listing
the Riley factors); Daniels v. State, 313 Ga. 400, 406 (870 SE2d 409) (2022)
(explaining that whether a juvenile defendant knowingly and voluntarily
waived his rights depends on “the totality of the circumstances,” but that
“courts are to consider nine factors in making that determination” and then
listing and analyzing the factors set forth in Riley); State v. Burton, 314 Ga.
637, 641-649 (878 SE2d 515) (2022) (explaining that whether a juvenile waived
his rights under Miranda depends on “the totality of the circumstances,” but
listing the Riley factors and reviewing the trial court’s findings as to each
factor); State v. Powell, 315 Ga. 5, 12-14 (880 SE2d 189) (2022) (applying Riley
to determine whether a juvenile’s statement was voluntarily made as a matter
of due process, noting that “in analyzing the totality of the circumstances, the
trial court considered the many factors set forth in Riley,” listing the nine
factors, and then reviewing each of them).
29
clear that Georgia trial courts should no longer look to that
framework for determining, under the totality of the circumstances,
whether a juvenile knowingly and voluntarily waived his rights
under Miranda. Rather, as we have explained above, the totality-
of-the-circumstances test requires trial courts to consider all of the
relevant circumstances surrounding a juvenile’s interview with law
enforcement officials to determine whether the State has met its
burden of showing that the juvenile knowingly and voluntarily
waived his rights. See Fare, 442 U.S. at 725.
In addition, we have said that the factors listed in Riley are inapplicable
in cases involving whether an adult knowingly and voluntarily waived his
constitutional rights. See Andrews v. State, 302 Ga. 809, 811 n.5 (809 SE2d
746) (2018), overruled on other grounds by State v. Abbott, 303 Ga. 297 (812
SE2d 225) (2018); Sewell v. State, 283 Ga. 558, 562 (662 SE2d 537) (2008);
Vergara v. State, 283 Ga. 175, 177-178 (657 SE2d 863) (2008); Woodard v.
State, 277 Ga. 49, 50 (586 SE2d 330) (2003); Reynolds v. State, 275 Ga. 548,
549 (569 SE2d 847) (2002); King v. State, 273 Ga. 258, 260 (539 SE2d 783)
(2000); Esposito v. State, 273 Ga. 183, 185 (538 SE2d 55) (2000); McDade v.
State, 270 Ga. 654, 656 (513 SE2d 733) (1999); Hance v. State, 245 Ga. 856, 858
(268 SE2d 339) (1980). To the extent that language in these or other Georgia
appellate cases indicates that the test for whether a defendant has knowingly
and voluntarily waived his rights under Miranda is not the same for juveniles
as it is for adults, that language is disapproved. See Fare, 442 U.S. at 725(explaining that the totality-of-the-circumstances test is used for determining
whether a juvenile has knowingly and voluntarily waived his constitutional
rights, and that this same test is used for determining whether an adult has
waived his rights).
30
(c) We turn now to whether the trial court in this case applied
the proper standard—the totality-of-the-circumstances test—to
determine whether Clark knowingly and voluntarily waived his
rights under Miranda. As explained below, nothing in the record
indicates that the court failed to apply the test, so Clark does not
prevail on this claim.
(i) Near the beginning of the trial, the trial court held a
hearing pursuant to Jackson v. Denno, 378 U.S. 368 (84 SCt 1774,
12 LE2d 908) (1964), to determine the admissibility of the audio-
recording of Clark’s interview with the lead investigator. The
evidence presented at the hearing, which included testimony from
the investigator and the recording of the interview, showed the
following. On the day after the shooting, the investigator spoke with
Clark’s mother, who said that she did not know where Clark was;
around 6:45 p.m., Clark and Kelly turned themselves in at the
Richmond County Sheriff’s Office; and at 8:15 p.m., the investigator
interviewed Clark for about an hour and 10 minutes. Clark, who
was then 16 years old, attended high school and was in the tenth
31
grade. He confirmed during the interview that he understood right
from wrong; he understood English; and he did not have any “mental
disorder” or take any drugs that would prevent him from
understanding the investigator’s questions. The investigator
informed Clark that he and Kelly were being charged with murder.
He then read to Clark the language that was contained on a “Waiver
of Counsel” form; Clark wrote his initials next to each of the six
rights listed on the form and signed it.17
Clark initially denied any knowledge of the shooting, saying
that he had not seen Kelly that night. During the course of the
interview, Clark said that he had “been in trouble with the police”
before, and he understood that giving a false statement to a police
17 The form advised Clark that he could “remain silent and [did] not have
to make any statement at all”; “any statement which [he] might make” could
“be used against [him] in court”; he had a “right to consult with an attorney
before making any statements and to have such attorney present with [him]
while [he was] making a statement”; if he did not have enough money to employ
an attorney, he had “the right to have one appointed by the [c]ourt”; if he
requested an attorney, “no questions [would] be asked until an attorney [was]
present”; and he could decide “at any time to exercise these rights and not
answer any questions or make any statements.” Just above the date and
signature lines, the form said, “I have read this Waiver of Counsel and fully
understand it. No threats or promises have been made to induce me to sign
this Waiver of Counsel.”
32
officer was against the law. At one point, Clark asked the
investigator if he was going to be “locked up,” and the investigator
replied, “You have to be locked up for what happened. I have
warrants on you.” When the investigator said that telling the truth
might “look[] good” if Clark “went to court,” Clark mumbled
something about “30 years,” and the investigator said, “You don’t
know that.” The investigator later asked if Clark knew the sentence
for murder, and Clark replied, “Life.”
About 35 minutes after the interview began, Clark said
something like, “I [inaudible] talk to a lawyer.”18 The investigator
asked, “Do what?” Clark again said something like, “I [inaudible]
talk to a lawyer.” The investigator said, “Are you saying you don’t
want to talk no more and you want to talk to a lawyer? Is that what
you’re saying?” Clark responded, “I’m saying I don’t understand
why you all got me for something I didn’t do.” The investigator then
said that he had surveillance recordings showing Clark and Kelly
18Clark’s trial counsel argued at the hearing that Clark said, “I’ll talk to
a lawyer.”
33
together on the night of the murder. Clark again denied any
involvement, and asked about the evidence the investigator had.
When the investigator asked Clark to “tell the truth,” he eventually
admitted that he was present when Kelly fired at King and his
companions, although he claimed that he fled when the shooting
began.
The investigator testified at the hearing that during the
interview, Clark did not appear to be intoxicated or suffering from
any mental defects; he seemed to understand and coherently answer
questions; no one had threatened him or promised him anything;
and he did not ask to speak with his mother or any other family
member. He also testified that the Richmond County Sheriff’s Office
had a special form used to advise juveniles of their rights under
Miranda, but he did not use that form for Clark. In addition, he
testified that about an hour and a half after the interview ended,
Clark said that he wanted to change his statement, saying that
Archie was the shooter. About five minutes later, Clark repeated
that Kelly was actually the shooter and that he had tried to change
34
his statement because he was “scared” of Kelly.
At the hearing, the parties argued about whether the
investigator should have used the juvenile waiver-of-rights form and
should have advised Clark that a parent could be present during the
interview. They also argued about whether Clark unequivocally
invoked his right to counsel. In addition, the prosecutor asserted
that Clark’s comments during the interview showed that he was
“well versed in the criminal justice system.”
The trial court ruled that the recording of the interview was
admissible. It concluded that Clark had not clearly invoked his right
to counsel, pointing out that when the investigator tried to clarify
whether Clark wanted to talk to a lawyer, Clark replied, “I’m saying
I don’t understand why you got me for something I didn’t do.” 19 The
court then stated that the investigator was not required to use a
juvenile waiver-of-rights form and that Clark clearly “understood
what was going on” and “understood the system.” The trial court
ruled that the State had shown by a preponderance of the evidence
19 Clark does not raise this issue on appeal.
35
that Clark was advised of his rights under Miranda, understood
them, and voluntarily waived them.
(ii) Nothing in the record suggests that the trial court failed
to apply a totality-of-the-circumstances test. To the contrary, the
record shows that the court reviewed the entire audio recording of
the interview, which contained pertinent information regarding
Clark’s age, intelligence, education, previous experience with the
criminal justice system, and understanding of his rights under
Miranda. Moreover, during the hearing, the parties argued at
length about whether a juvenile waiver-of-rights form should have
been used, whether Clark should have been advised that a parent
could be present during his interview, and whether Clark had
clearly invoked his right to counsel when he mentioned “talk[ing] to
a lawyer.” The prosecutor also asserted that the recording of the
interview, including Clark’s comments about being “locked up” and
potentially serving a sentence of “30 years” or “life” in prison for
murder, showed that he was familiar with the criminal justice
system.
36
In ruling that the recording of the interview was admissible,
the trial court expressly concluded that a juvenile waiver-of-rights
form was not required, that Clark had not invoked his right to
counsel, and that he understood “what was going on” and understood
the criminal justice “system.” Although the court did not expressly
acknowledge other factors that may have been pertinent in
analyzing the totality of the circumstances, “we generally do not
require trial courts to make specific, on-the-record findings about
each aspect of the totality of the circumstances they evaluate or to
make ‘explicit factual findings or credibility determinations on the
record.’” Lester v. State, 310 Ga. 81, 86 (849 SE2d 425) (2020)
(citation omitted).
In sum, we see no indication that the trial court failed to apply
a totality-of-the-circumstances test in determining whether Clark
knowingly and voluntarily waived his rights under Miranda.
Clark’s claim therefore fails.20 See Holmes v. State, 311 Ga. 698, 706
20 Because Clark contends only that the trial court applied the wrong
legal test and does not contend that the court erred in concluding that he
37
(859 SE2d 475) (2021) (“‘Trial judges . . . are presumed to know the
law and apply it in making their decisions, absent some indication
in the record suggesting otherwise.’”) (citation omitted). See also
Drennon v. State, 314 Ga. 854, 860 (880 SE2d 139) (2022)
(explaining that when a trial court evaluates the general grounds as
the “thirteenth juror,” we presume that the court understood the
nature of its discretion and exercised it, unless the record shows
otherwise, even if the court did not explicitly speak of its discretion
with respect to the general grounds).
4. Clark also asserts that the trial court committed plain error
by failing to instruct the jury on knowledge, grave suspicion, mere
presence, and mere association. These instructions were necessary,
Clark says, to inform the jurors that in order to find him guilty as a
party to the crimes against King, the jury would be required to
determine that he shared a common criminal intent with Kelly. As
Clark acknowledges, his trial counsel did not object to the omission
knowingly and voluntarily waived his constitutional rights under the proper
test, we do not address that issue.
38
of these instructions, so we review this claim for plain error only. To
establish plain error, Clark must show that the alleged instructional
error “‘was not affirmatively waived; was clear and obvious, rather
than subject to reasonable dispute; likely affected the outcome of the
trial; and seriously affected the fairness, integrity, or public
reputation of judicial proceedings.’” Collins v. State, 312 Ga. 727,
738 (864 SE2d 85) (2021) (citation omitted). “‘An appellant must
establish all four elements of the test in order to demonstrate plain
error, so satisfying this test is difficult, as it should be.’” Id. (citation
omitted). Because Clark has not met his burden of proving that the
trial court clearly and obviously erred, or that any such error likely
affected the outcome of his trial, he has failed to establish plain
error.
In evaluating a claim that the trial court was required to give
certain jury instructions, “‘we view the charge as a whole to
determine whether the jury was fully and fairly instructed.’” Lopez
v. State, 310 Ga. 529, 537 (852 SE2d 547) (2020) (citation omitted).
During the final charge, the trial court read the indictment to the
39
jury and provided instructions on the presumption of innocence and
the State’s burden to prove beyond a reasonable doubt each essential
element of the charged crimes. The court also instructed on felony
murder and aggravated assault, saying, among other things, that
felony murder “require[s] that the defendant possess the requisite
criminal intent to commit the underlying felony” and that
aggravated assault requires “that the defendant intentionally
committed an act which placed the alleged victim in reasonable fear
of immediately receiving a violent injury.” The court told the jury
that “[i]ntent is an essential element of any crime and must be
proved by the State beyond a reasonable doubt” and that “[Clark]
will not be presumed to have acted with criminal intent.” In
addition, the trial court thoroughly and accurately instructed on
parties to a crime, specifically telling the jury that a person may be
convicted as a party to a crime if he intentionally aided or abetted in
the commission of the crime or intentionally advised or encouraged
another to commit the crime. Thus, the jury was fully informed that
it was not authorized to find Clark guilty as a party to the crimes
40
unless he shared Kelly’s criminal intent to shoot King.
When evaluated in the context of the jury instructions as a
whole, the trial court’s failure to expressly instruct on knowledge,
grave suspicion, mere presence, and mere association did not create
a clear and obvious error beyond reasonable dispute with respect to
the jury’s understanding of criminal intent. See, e.g., Adkins v.
State, 314 Ga. 477, 483 (877 SE2d 582) (2022) (holding that the trial
court did not err by failing to instruct the jury on grave suspicion,
“because the concept was covered in other jury instructions”);
Downey v. State, 298 Ga. 568, 574 (783 SE2d 622) (2016) (explaining
that trial counsel was not ineffective for failing to object to the
omission of a jury instruction on knowledge, because the charge as
a whole sufficiently informed the jury of the knowledge required for
a defendant to be convicted as a party to the crimes); Simmons v.
State, 282 Ga. 183, 188 (646 SE2d 55) (2007) (holding that the trial
court did not err by failing to instruct the jury on mere presence and
guilt by association, because “mere presence is only a corollary to
the requirement that the State prove each element of the crime
41
charged, and . . . the trial court’s instructions clearly informed the
jury of this requirement”).
For the same reason, Clark has not established that there is a
reasonable probability that the outcome of the trial would have been
more favorable to him had the trial court given these instructions.
See Downey, 298 Ga. at 574-575. See also, e.g., Walker v. State, 311
Ga. 719, 724-725 (859 SE2d 25) (2021) (holding that an allegedly
improper jury instruction did not likely affect the outcome of the
appellant’s trial under the third part of the plain-error test, because
the charge as a whole adequately instructed the jury as to how to
determine his guilt); Cochran v. State, 305 Ga. 827, 832 (828 SE2d
338) (2019) (holding that trial counsel’s withdrawal of a requested
jury instruction on mere presence did not prejudice the appellant,
because other instructions sufficiently covered that point).
Accordingly, Clark has not met his high burden of proving plain
error.
5. Finally, Clark argues that his trial counsel provided
constitutionally ineffective assistance by failing to request the jury
42
instructions discussed above and by failing to file a demurrer to the
indictment. To prevail on these claims, Clark must show that his
lawyer’s performance was constitutionally deficient and that he
suffered prejudice as a result. See Strickland v. Washington, 466
U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To prove deficient
performance, Clark must demonstrate that his counsel “‘performed
at trial in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.’”
Lewis v. State, 314 Ga. 654, 668 (878 SE2d 467) (2022) (citation
omitted). See also Strickland, 466 U.S. at 688-689. To establish
prejudice, Clark must show a reasonable probability that, but for
counsel’s deficient performance, the result of the trial would have
been different. See Strickland, 466 U.S. at 694; Lewis, 878 SE2d at
479. We need not address both components of the Strickland test if
Clark makes an insufficient showing on one. See Strickland, 466
U.S. at 697; Lewis, 878 SE2d at 479.
(a) Clark first claims that his trial counsel provided
constitutionally ineffective assistance by failing to request jury
43
instructions on knowledge, grave suspicion, mere presence, and
mere association. As we explained in Division 4 above, the trial
court’s omission of the instructions Clark now says should have been
given was not an obvious or harmful error under plain-error review.
Even if we assume that trial counsel performed deficiently by failing
to request the instructions, Clark has not established that any such
deficiency resulted in prejudice, given that “‘[t]he test for prejudice
in the ineffective assistance analysis is equivalent to the test for
harm in plain error review.’” Harris v. State, 310 Ga. 372, 385 (850
SE2d 77) (2020) (citation omitted). This claim of ineffective
assistance therefore fails.
(b) Clark also asserts that his trial counsel was
constitutionally ineffective for failing to file a general demurrer to
the felony-murder count in the indictment. Because counsel did not
perform deficiently in this regard, Clark cannot succeed on this
claim.
“‘A general demurrer challenges the sufficiency of the
substance of the indictment,’ and asks whether it is capable of
44
‘supporting a conviction.’” Budhani v. State, 306 Ga. 315, 319 (830
SE2d 195) (2019) (citation omitted). An indictment is void to the
extent it fails to allege all of the essential elements of the charged
crime. See id. To that end, an indictment is subject to a general
demurrer “‘if the accused could admit each and every fact alleged in
the indictment and still be innocent of any crime.’” Id. (citation
omitted). If, on the other hand, the admission of the facts alleged in
the indictment leads to the conclusion that the defendant is guilty
of the charged crime, the indictment is sufficient. See id.The indictment charged Clark with felony murder “while in the
commission of the felony of [a]ggravated [a]ssault” by “caus[ing] the
death of . . . King . . . by shooting him with an unknown type
handgun, a deadly weapon[.]” This language substantially tracked
OCGA § 16-5-1 (c), which defines felony murder as “caus[ing] the
death of another human being irrespective of malice” while “in the
commission of a felony.” And OCGA § 16-5-21 (b) provides that the
crime of aggravated assault is a felony. Thus, the felony-murder
count in the indictment was sufficient to withstand a general
45
demurrer, “because [Clark] cannot admit he caused the death of the
victim while in the commission of aggravated assault and not be
guilty of the crime [of felony murder].” Stinson v. State, 279 Ga. 177,
179 & n.2 (611 SE2d 52) (2005) (holding that an indictment charging
the appellant with felony murder by causing the death of the victim
“‘while in the commission of a felony, to wit: aggravated assault’”
was not subject to a general demurrer). See also Smith v. State, 313
Ga. 752, 758-759 (873 SE2d 142) (2022) (determining that an
indictment charging the appellant with felony murder by causing
the victim’s death “‘while in the commission of the offense of
aggravated assault, a felony, and/or aggravated battery, a felony’”
was sufficient to withstand a general demurrer). 21
Clark nevertheless argues that the indictment was flawed
because it did not charge him with a count of aggravated assault
against King. Such a charge was necessary, he says, because
aggravated assault was the felony that formed the basis of the
Clark does not argue that the indictment failed to contain the essential
21
elements of the underlying crime of aggravated assault.
46
felony-murder count. But it is well settled that “‘the crime of [felony]
murder is independent of the underlying felony. . . . Therefore, the
underlying felony need not be charged as a separate substantive
offense[.]’” State v. Jones, 274 Ga. 287, 288 (553 SE2d 612) (2001)
(citation omitted). See also Freeman v. State, 297 Ga. 146, 150 (771
SE2d 889) (2015) (noting that OCGA § 16-5-1 (c) does “not require
that the defendant be charged and convicted of the underlying
felony. The jury must simply find that the defendant committed or
attempted to commit it”) (citation and punctuation omitted),
overruled on other grounds by Collier v. State, 307 Ga. 363 (834
SE2d 769) (2019). Cf. Smith, 313 Ga. at 758-759 (determining that
a one-count indictment charging the appellant with felony murder
based on aggravated assault was sufficient to withstand a general
demurrer); Stinson, 279 Ga. at 179 (same). Thus, the indictment
was not defective in this respect.
Because a general demurrer to the indictment on the ground
that it failed to charge Clark with aggravated assault would have
been meritless, Clark has not shown that his trial counsel performed
47
deficiently. See Smith, 313 Ga. at 759 (holding that trial counsel
was not deficient for failing to file a general demurrer, because such
a filing would have been meritless). Accordingly, he cannot prevail
on this ineffective-assistance claim.
Judgment affirmed. All the Justices concur.
48