Jackson 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: August 21, 2023
S23A0595. JACKSON v. THE STATE.
LAGRUA, Justice.
Appellant Quentin Jackson was convicted of malice murder
and related charges in connection with the shooting death of Darian
Brewster. 1 On appeal, Jackson contends that (1) the evidence was
1 The crimes occurred on August 20, 2016. On May 2, 2017, a Bibb
County grand jury indicted Jackson and Benjamin Murphy for malice murder
(Count 1), felony murder predicated on aggravated assault (Count 2),
aggravated assault (Count 4), and possession of a firearm during the
commission of a felony (Count 5). Jackson was also separately indicted for an
additional count of felony murder predicated on possession of a firearm by a
convicted felon (Count 3), possession of a firearm by a convicted felon (Count
6), and two counts of violating the Georgia Street Gang Terrorism and
Prevention Act (Counts 7 and 8).
Jackson was tried alone in August 2018, and the jury found him guilty
on all counts. The trial court merged the felony murder counts (Counts 2 and
3), the aggravated assault count (Count 4), and the possession of a firearm by
a convicted felon count (Count 6) into the malice murder count (Count 1).
Although the trial court merged Counts 2 and 3 into Count 1, they were
actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372-
373 (5) (434 SE2d 479) (1993). The trial court also merged Count 6 into Count
1. The State has not challenged the sentences, and we decline to exercise our
discretion to address them. See Dixon v. State, 302 Ga. 691, 696-698 (4) (808
insufficient, (2) his trial counsel provided constitutionally ineffective
assistance in several respects, and (3) the trial court erred by failing
to instruct the jury on accomplice corroboration. For the reasons that
follow, these claims fail, and we affirm Jackson’s convictions.
Background. The evidence at trial showed that in the early
morning hours of August 20, 2016, Brewster was shot while sitting
in a car with two friends, Sandra Thomas Russell and Marilyn
Odom, in the parking lot of a nightclub in Bibb County. Russell and
Odom drove Brewster to a nearby hospital, where he died due to a
gunshot wound to his heart.
At the hospital, Russell and Odom told Investigator David
Patterson that they had been at the nightclub with Brewster and
Caryn Powell. The four of them left the nightclub and walked to
SE2d 696) (2017).
The trial court sentenced Jackson to serve life in prison without the
possibility of parole on Count 1, plus five consecutive years to serve on Count
5, 20 consecutive years to serve on Count 7, and 20 consecutive years to serve
on Count 8. Jackson filed a timely motion for new trial, which was amended
through new counsel. After holding an evidentiary hearing, the trial court
denied the motion for new trial on December 7, 2022. Jackson filed a timely
notice of appeal, and his case was docketed to this Court’s April 2023 term and
submitted for a decision on the briefs.
2
Brewster’s car, although Powell lagged behind. Russell told
Investigator Patterson that she noticed “three guys with blankets
over their heads” while they were walking to Brewster’s car and that
an unknown man asked Brewster for a “light” after Brewster sat
down in the driver’s seat. Russell heard a “pop” and realized that
Brewster had been shot. Odom told Investigator Patterson that she
saw the man who shot Brewster, but she did not know his name.
Later that evening, Odom reached out to Investigator
Patterson again and told him that: (1) Jackson was the person she
saw shoot Brewster; (2) Jackson was living with his mother on
Lynmore Avenue; and (3) on the night of shooting, Jackson was
driving a champagne-colored Toyota SUV with a temporary car tag.
The next morning, Investigator Patterson located a champagne-
colored Toyota SUV with a temporary car tag parked at Jackson’s
mother’s house.
Pursuant to a search warrant, Investigator Patterson obtained
Jackson’s phone records, which revealed a couple of calls to
Christopher Finnell in the hours prior to the murder. Finnell told
3
Investigator Patterson that Jackson and Murphy stopped by
Finnell’s house before the murder, and Jackson asked Finnell if he
wanted to participate in a robbery; Finnell declined. Finnell stated
that the day after the murder, Murphy told Finnell that Jackson
“had to burn the [man],” which Finnell understood to mean “shoot.”
Several hours later, Jackson stopped by Finnell’s house, stating,
“You better not run your mouth.”
At trial, Odom testified that, on the evening of August 19,
2016—the evening before Brewster was shot—Jackson picked her
up and dropped her off to meet up with Russell and Powell to “party.”
Eventually, the three women also met up with Brewster, a known
drug dealer who always carried cash and was generous with his
money. The three women and Brewster then went to the nightclub.
Odom’s testimony and the nightclub’s surveillance video,
which was played for the jury, showed Odom, Brewster, Powell, and
Russell enter the nightclub at 1:22 a.m. on August 20. At 1:34 a.m.,
Russell left the nightclub when she received a phone call, and she
was seen holding her phone up to her ear as she was leaving. At 1:38
4
a.m., Brewster, Powell, and Odom left the nightclub.
After leaving the nightclub, Powell saw Murphy in the parking
lot and stopped to talk to him. Powell and Murphy both testified that
they had a brief chat and that Murphy was wearing rubber boots.
Odom and Russell testified that they walked with Brewster to
his car. Odom noticed Jackson’s champagne-colored Toyota SUV and
saw Jackson on the side of the building “acting like he was using the
bathroom.” Jackson said to the group, “[H]ey, how y’all doing,” and
Brewster responded, “I’m good.” Brewster, Russell, and Odom
walked to Brewster’s car, got in, and waited for Powell. Odom
testified that, while they were sitting in Brewster’s car, Jackson
walked up to the driver-side door and asked Brewster for a lighter.
In contrast, Russell testified that, before they got into the car, an
unknown person asked Brewster for a cigarette and this person was
part of a group of two or three people in the parking lot, who were
wearing “dark gray and black robe[s] like head to toe.”
Odom testified that, after Jackson asked for a lighter, Jackson
shot Brewster. Murphy also testified that he witnessed Jackson lean
5
into the car and shoot Brewster. Russell testified that an unknown
person opened Brewster’s car door and “a gun went off.” Powell
testified that she saw “a figure coming,” “heard a pop,” Brewster’s
car drove off, and she was left in the parking lot.
According to Odom, after she and Russell took Brewster to the
hospital, Russell told her, “[T]ake this car somewhere and go
through the car, I know [Brewster] got more money somewhere in
the car.” However, Odom said she simply parked the car and did not
search it. Odom also testified that, after she and Russell left the
hospital, Russell asked Odom if she saw who shot Brewster, and
Odom stated it was Jackson. Russell responded, “Don’t you ever say
his name, I don’t want to hear you say his name.” Russell then called
Jackson and asked, “[B]aby, was you downtown?” Jackson asked,
“Why?” and Russell responded, “[Odom] said she seen you.” Russell
then placed Jackson on speaker phone, and Jackson said to Odom,
“[L]isten here, you fat [b**ch], if you go to them [] folks and say my
name, I know where your fat [b**ch] stay at.” Odom also testified
that Russell told her “to say three guys with some rubber boots on”
6
shot Brewster.2
Lakeshia Ford testified that the day after the shooting she was
at a social gathering and “it was said that [Jackson] was the shooter
that killed [Brewster].” Ford looked over to Jackson and Russell,
who were also at the gathering, and rolled her eyes. Jackson hit Ford
in the face, telling her “to keep [her] mouth shut, b**ch.”3 During
the trial, the State presented a recording of a phone call made by
Jackson to Russell, during which Jackson asked Russell why she
was “hanging around with [Ford]” and later said, “I need [Ford] . . .
to say she put everything in [Odom’s] head.” Russell responded that
she would speak with Ford and record it.
Additionally, Finnell testified that, after Jackson was arrested,
Finnell was arrested on unrelated charges, and while he was in
custody, he was attacked by Jackson.
Finally, Murphy testified that Jackson was associated with the
2 During Russell’s testimony, she admitted that she called Jackson after
she left the hospital, but she denied that she told Jackson about what, if
anything, Odom saw and denied that Jackson threatened Odom.
3 At trial, Russell denied that she was present when this was alleged to
have occurred.
7
Gangster Disciples street gang and Brewster was associated with
the Crips street gang. Additionally, the State presented the
testimony of Investigator Cedric Penson, who was admitted as an
expert in criminal street gang activity. Investigator Penson testified
that the Crips and Gangster Disciples are rival street gangs in Bibb
County. For symbols, the Gangster Disciples used a pitchfork, the
number 74, and the Star of David. Investigator Penson reviewed
Jackson’s tattoos and testified that Jackson had several tattoos
depicting the Star of David and the number 74. Jackson also had a
tattoo depicting tall buildings with the words “GDHQ” written on it.
Investigator Penson testified that “GDHQ” meant “Gangster
Disciples Headquarters” and the tall buildings symbolized Chicago,
where the Gangster Disciples was founded.
Investigator Penson also testified that, based on phone records,
Jackson appeared to have an association with three other members
of the Gangster Disciples, including the leader of the Blac Team, a
division of the Gangster Disciples. He further testified that Brewster
was associated with the Crips and that he had noticed a trend of
8
gang-affiliated drug dealers getting robbed and that some of these
robberies were committed by rival gang members because
committing a violent crime “increase[d] their status” within the
gang.
1. Jackson contends the trial court erred in denying his motion
for new trial because the evidence presented at trial was insufficient
to support his convictions. We disagree.
Evidence is constitutionally sufficient to support a conviction
if, “‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Munn v. State,
313 Ga. 716, 720 (1) (873 SE2d 166) (2022) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979)). “This Court does not reweigh evidence or resolve conflicts in
testimony but rather defers to the jury’s assessment of the weight
and credibility of the evidence.” Jones v. State, 314 Ga. 692, 695 (878
SE2d 502) (2022) (citation and punctuation omitted).
(a) The evidence was sufficient to support the malice murder
9
and firearm convictions.
The evidence summarized above, including the testimony of
two witnesses who saw Jackson shoot Brewster, was sufficient to
authorize the jury to find Jackson guilty beyond a reasonable doubt
of malice murder and possession of a firearm during the commission
of a felony.
(b) The evidence was also sufficient to support the convictions
for violating the Georgia Street Gang Terrorism and Prevention Act
(the “Gang Act”).
Jackson was convicted of violating the Gang Act by
participating in criminal gang activity through the commission of
the murder of Brewster while “associated with Gangster Disciples,
a criminal street gang.” Jackson was also convicted of violating the
Gang Act by participating in criminal gang activity through the
commission of “the offense of possession of a firearm by a convicted
felon . . . by having in his possession . . . a firearm after having been
convicted of the felony crime of aggravated assault” while
“associated with Gangster Disciples, a criminal street gang.” See
10
OCGA §§ 16-15-4 (a) (“It shall be unlawful for any person employed
by or associated with a criminal street gang to conduct or participate
in criminal gang activity through the commission of any offense
enumerated in [paragraph (1) of Code Section 16-15-3”); 16-15-3 (1)
(J) (enumerated offenses include any criminal offense that involves
violence or the use of a weapon). To convict Jackson, the State had
to prove beyond a reasonable doubt that: (1) Jackson was associated
with the Gangster Disciples; (2) the Gangster Disciples was a
“criminal street gang;” (3) Jackson committed the predicate acts of
murder and possession of a firearm by a convicted felon; and (4) the
commission of those offenses was intended to further the interests
of the Gangster Disciples. See Jackson v. State, 306 Ga. 706, 709 (1)
(b) (832 SE2d 809) (2019).
Regarding the first two elements, Murphy testified that
Jackson was a member of the Gangster Disciples, and Investigator
Penson testified that Jackson had several tattoos signifying the
Gangster Disciples. See OCGA § 16-15-3 (3) (existence of a gang
“may be established by evidence of a common name or common
11
identifying signs, symbols, tattoos, graffiti, or attire or other
distinguishing characteristics”). Investigator Penson further
testified that the Gangster Disciples was a criminal street gang, had
at least three members, and the gang had committed violent crimes,
including aggravated assault and murder. See OCGA § 16-15-3 (3)
(defining a “criminal street gang” as “any organization, association,
or group of three or more persons associated in fact, whether formal
or informal, which engages in criminal gang activity”).
Regarding the third element, as stated in Division 1 (a), the
evidence authorized a finding that Jackson shot at and killed
Brewster, establishing that he committed the predicate offense of
murder. Additionally, the State presented evidence, as discussed in
Division 2 (b) below, that Jackson was a convicted felon. Thus, the
evidence authorized a finding that Jackson possessed a firearm
while he was a convicted felon, establishing that he committed the
predicate offense of possession of a firearm by a convicted felon.
Regarding the fourth element, the evidence showed that
Brewster was a drug dealer and a member of a rival gang, the Crips.
12
Investigator Penson testified that gang-affiliated drug dealers were
getting robbed and that these robberies were committed by rival
gang members because committing a violent crime “increase[d] their
status” within the gang. From this evidence, the jury was authorized
to conclude that Jackson shot and killed Brewster in furtherance of
the interests of the Gangster Disciples because he killed a rival
gang-affiliated drug dealer. See Jackson, 306 Ga. at 709-710 (1) (b)
(affirming convictions for violation of the Gang Act where the
evidence showed, among other things, that the victim was a member
of a rival gang). Based on this evidence, the jury was authorized to
convict Jackson of the violations of the Gang Act for which he was
charged (Counts 7 and 8).
2. Jackson contends his trial counsel provided constitutionally
ineffective assistance by (a) failing to object to other-acts evidence
under OCGA § 24-4-404 (b) (“Rule 404 (b)”) and failing to request a
limiting instruction and (b) failing to stipulate that Jackson was a
convicted felon. These claims fail.
To prevail on these claims, Jackson must demonstrate both
13
that his trial counsel’s performance was professionally deficient and
that he was prejudiced by this deficient performance. See Bates v.
State, 313 Ga. 57, 62 (2) (867 SE2d 140) (2022) (citing Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984)). To establish deficient performance, Jackson must show that
trial counsel performed his duties in an objectively unreasonable
way, considering all the circumstances and in the light of prevailing
professional norms. See id. Establishing deficient performance
is no easy showing, as the law recognizes a strong
presumption that counsel performed reasonably, and [the
appellant] bears the burden of overcoming this
presumption. To carry this burden, he must show that no
reasonable lawyer would have done what his lawyer did,
or would have failed to do what his lawyer did not. In
particular, decisions regarding trial tactics and strategy
may form the basis for an ineffectiveness claim only if
they were so patently unreasonable that no competent
attorney would have followed such a course.
Park v. State, 314 Ga. 733, 740-741 (879 SE2d 400) (2022) (citation
and punctuation omitted). To establish prejudice, Jackson must
prove that there is a reasonable probability that, but for his trial
counsel’s deficiency, the result of the trial would have been different.
14
See Bates, 313 Ga. at 62 (2). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
(citation and punctuation omitted). “And, this burden is a heavy
one.” Id. at 62-63 (2) (citation and punctuation omitted). “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.” Taylor v. State, 315 Ga. 630, 647 (5) (b) (884 SE2d
346) (2023) (citation and punctuation omitted). “This Court accepts
a trial court’s factual findings and credibility determinations on an
ineffectiveness claim unless they are clearly erroneous, but we apply
legal principles to the facts de novo.” Bonner v. State, 314 Ga. 472,
474 (1) (877 SE2d 588) (2022) (citation and punctuation omitted).
(a) Jackson contends his trial counsel provided constitutionally
ineffective assistance by failing to object to Ford’s testimony about
Jackson hitting her and threatening her on the day after the murder
and by failing to request a limiting instruction. We conclude that
trial counsel did not perform deficiently.
In Jackson’s view, counsel should have filed a motion to exclude
15
Ford’s testimony under Rule 404 (b) and OCGA § 24-4-403 (“Rule
403”) because it was “unduly prejudicial” and “offered simply to
suggest propensity.” Because the evidence was properly admitted as
intrinsic evidence, we need not address its potential admission as
extrinsic evidence under Rule 404 (b). See Heade v. State, 312 Ga.
19, 24 (3) (860 SE2d 509) (2021) (holding that Rule 404 (b) is not
applicable to intrinsic evidence).
Evidence is admissible as intrinsic evidence when it is an
uncharged offense that arises from the same transaction or series of
transactions as the charged offense, is necessary to complete the
story of the crime, or is inextricably intertwined with the evidence
regarding the charged offense. See Williams v. State, 302 Ga. 474,
485 (IV) (d) (807 SE2d 350) (2017). Evidence may be intrinsic if it
“pertain[s] to the chain of events explaining the context, motive, and
set-up of the crime” and “is linked in time and circumstances with
the charged crime, or forms an integral and natural part of an
account of the crime.” See Heade, 312 Ga. at 25 (3) (citation and
punctuation omitted).
16
Here, Ford testified that the day after the shooting she was at
a social gathering and “it was said that [Jackson] was the shooter
that killed [Brewster].” Ford looked over to Jackson and Russell,
who were also at the gathering, and rolled her eyes. Jackson hit Ford
in the face, telling her “to keep [her] mouth shut, b**ch.” After
Jackson was arrested, he called Russell, asked her why she was
“hanging around with [Ford]” and later said, “I need [Ford] . . . to
say she put everything in [Odom’s] head.” Russell responded that
she would speak to Ford and record her.
Ford’s testimony regarding Jackson’s assault of Ford and
threat that she “keep [her] mouth shut” was evidence of an
uncharged offense, i.e., aggravated assault or battery, arising from
the same transaction as Brewster’s murder. Ford’s testimony
showed Jackson’s attempt to hide his involvement in Brewster’s
murder and explained why Jackson suggested Ford as a person who
could “say she put everything in [an eyewitness’s] head,” i.e., he had
already threatened her. Thus, Ford’s testimony was admissible as
intrinsic evidence. See West v. State, 305 Ga. 467, 473 (2) n.6 (826
17
SE2d 64) (2019) (where an attempt to influence a witness is an
uncharged offense arising from the same transaction or series of
transactions as the charged offense it would be properly treated as
intrinsic evidence and thus not subject to the limitations and
prohibition on other acts evidence set out in Rule 404 (b)).
But intrinsic evidence must still satisfy Rule 403. See
Williams, 302 Ga. at 360 (IV) (d). Under Rule 403, “[r]elevant
evidence may nevertheless be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” Wilson
v. State, 315 Ga. 728, 738 (8) (a) (883 SE2d 802) (2023) (citation and
punctuation omitted). “[I]nculpatory evidence is inherently
prejudicial; it is only when unfair prejudice substantially outweighs
probative value that Rule 403 permits exclusion.” Early v. State, 313
Ga. 667, 671 (872 SE2d 705) (2022) (citation and punctuation
omitted). “The prejudicial effect of evidence is unfair if the evidence
has the capacity to lure the factfinder into declaring guilt on a
ground different from proof specific to the offense charged, or an
undue tendency to suggest decision on an improper basis, commonly,
18
though not necessarily, an emotional one.” Wilson, 315 Ga. at 738
(8) (a).
Here, Ford’s testimony showed that Jackson used the threat of
force to dissociate his name from Brewster’s murder. Evidence that
Jackson tried to conceal his part in the murder was obviously
probative of his guilt. See Richardson v. State, 308 Ga. 70, 72 (3)
(838 SE2d 759) (2020) (reasoning that the defendant’s “attempt to
conceal his involvement in the crimes was evidence of his guilt”).
The probative value of this evidence was very high, and whatever
unfair prejudice may have arisen from it did not substantially
outweigh the high probative value. See Morrell v. State, 313 Ga. 247,
261 (2) (b) (869 SE2d 447) (2022) (concluding the probative value of
the prior witness-intimidation evidence was not substantially
outweighed by unfair prejudice).
Accordingly, trial counsel did not perform deficiently by failing
to file a motion to exclude Ford’s testimony under Rule 404 (b) and
by failing to seek a corresponding limiting instruction because such
actions would have been meritless, and this claim fails. See Williams
19
v. State, 315 Ga. 797, 806 (2) (884 SE2d 877) (2023) (trial counsel’s
failure to file a meritless motion is not deficient performance).
(b) Jackson contends his trial counsel provided constitutionally
ineffective assistance by failing to stipulate that Jackson was a
convicted felon. Assuming without deciding that Jackson’s trial
counsel performed deficiently, we conclude Jackson was not
prejudiced by the introduction of his prior convictions.
Jackson was indicted for felony murder predicated on
possession of a firearm by a convicted felon (Count 3), possession of
a firearm by a convicted felon (Count 6), and violating the Georgia
Gang Act predicated on possession of a firearm by a convicted felon
(Count 8). The indictment identified the predicate felony conviction
as aggravated assault in Counts 6 and 8, but not in Count 3.4
At trial, the State tendered Exhibit 49 as evidence of Jackson’s
convicted-felon status, and it was admitted without objection. In
4 Jackson does not raise any claim regarding Count 3, which accuses
Jackson of committing felony murder while in the commission of possession of
a firearm by a convicted felon, without identifying the specific felony of which
he was convicted.
20
presenting Exhibit 49, the prosecutor stated it was a “felony
conviction for [Jackson] . . . for aggravated assault.” Exhibit 49
included a certified copy of Jackson’s 2007 indictment for aggravated
assault, possession of a firearm during the commission of a crime,
and possession of a firearm by a convicted felon, predicated on a
felony conviction for possession of cocaine. Exhibit 49 also included
a copy of Jackson’s sentence, which stated that the counts of
possession of a firearm during the commission of a crime and
possession of a firearm by a convicted felon were nolle prossed. The
State did not present any details concerning the aggravated assault
conviction or other indicted charges, and in closing argument, the
State only referenced Jackson’s aggravated assault conviction in
relation to the charges concerning possession of a firearm by a
convicted felon. Jackson argues his trial counsel’s failure to stipulate
to his convicted-felon status prejudiced him because the jury learned
of his convictions for aggravated assault, possession of cocaine, and
21
possession of a firearm. 5
“A defendant may be prejudiced by the admission of a prior
conviction into evidence when the prior conviction is of the nature
likely to inflame the jury’s passions and raise the risk of a conviction
based on improper considerations.” Willis v. State, 315 Ga. 19, 28 (4)
(a) (880 SE2d 158) (2022) (citation and punctuation omitted). And
“this Court has held that even violent crimes, crimes involving
firearms, and drug offenses were not likely to inflame the jury’s
passions in murder cases.” Parker v. State, 309 Ga. 736, 745 (5) (848
SE2d 117) (2020).
Here, Jackson has not shown that informing the jury that he
had been convicted of aggravated assault and that he had been
charged with—but not convicted of—possession of a firearm during
the commission of a felony and possession of a firearm by a convicted
felon, predicated on a felony conviction for possession of cocaine,
5 However, as noted above, Jackson was indicted in 2007 for possession
of a firearm during the commission of a felony and possession of a firearm by
a convicted felon, with the predicate felony being possession of cocaine, Exhibit
49 is clear that Jackson was only convicted of aggravated assault and not of
the firearms charges.
22
likely inflamed the passions of the jury, particularly in the light of
the nature of the charges and evidence against him. The evidence
against Jackson was strong. Two eyewitnesses identified Jackson as
the person who shot Brewster. One eyewitness also identified the
vehicle, i.e., a champagne-colored SUV with a temporary car tag,
that Jackson drove on the night of the shooting; this vehicle was in
the parking lot when Brewster was shot and was located at
Jackson’s mother’s house the next day. Further, three people
testified that Jackson threatened them to prevent them from
speaking about the murder. Additionally, as noted above, the
aggravated assault conviction was identified only twice in passing,
i.e., once when Exhibit 49 was introduced and once during closing
argument. The prosecutor did not emphasize the nature of the
aggravated assault conviction and never mentioned that Jackson
was also charged with possession of a firearm during the commission
of a felony and possession of a firearm by a convicted felon,
predicated on a felony conviction for possession of cocaine.
Because the evidence against Jackson was strong and the
23
prosecutor did not emphasize the defendant’s felony conviction when
it was admitted into evidence or during closing argument, see
Collins v. State, 312 Ga. 727, 749 (8) (d) (864 SE2d 85) (2021), we
conclude that even if Jackson’s counsel was deficient for failing to
stipulate to his convicted-felon status, Jackson has failed to show
that there is a reasonable probability that the result of his trial
would have been different. See Willis, 315 Ga. at 28-29 (4) (a) (in a
murder case, defendant not prejudiced by counsel’s failure to
stipulate to convicted-felon status, because evidence of guilt was
strong and jury’s passions were unlikely to be inflamed by prior
conviction for possession of cocaine); Ballard v. State, 297 Ga. 248,
252-53 (6) (a), (773 SE2d 254) (2015) (same, with past convictions
for aggravated assault and burglary with intent to commit
aggravated assault); Bentley v. State, 307 Ga. 1, 8 (2) (834 SE2d 549)
(2019) (same, with past convictions for rape and incest, mentioning
that “[t]he names and nature of the earlier convictions were not
emphasized by the State”). Accordingly, Jackson’s ineffectiveness
claim fails.
24
(c) Finally, Jackson contends that his trial counsel provided
constitutionally ineffective assistance by failing to request an
accomplice-corroboration instruction with respect to Murphy’s
testimony.
We note that in his appellate brief, Jackson asserts that trial
counsel’s failure to request an accomplice-corroboration instruction
was deficient, but he does not explain how counsel’s deficiency was
prejudicial. And “[i]t is well established that the burden is on the
party alleging error to show it by the record.” Sillah v. State, 315 Ga.
741, 751 (3) (883 SE2d 756) (2023) (citation and punctuation
omitted). Nevertheless, assuming without deciding that Jackson’s
counsel performed deficiently, we conclude that Jackson has not
established that he was prejudiced.
OCGA § 24-14-8 provides in pertinent part 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.”
“Where accomplice testimony is the bedrock of the conviction, it may
25
be likely that the jury convicted the defendant on the accomplice’s
testimony alone.” Payne v. State, 314 Ga. 322, 326 (1) (877 SE2d 202)
(2022) (citation and punctuation omitted).
Here, the most incriminating evidence against Jackson did not
come from Murphy—it came from Odom. Odom told police that
Jackson shot Brewster, described the SUV he was driving the night
of the murder, and that the SUV could be located at Jackson’s
mother’s house, which is where it was found the next day. Odom also
stated that Jackson threatened her after Jackson learned that Odom
witnessed the shooting. Additionally, Finnell testified that Jackson
and Murphy stopped by Finnell’s house prior to the murder and
asked him about committing a robbery. The day after the murder,
Jackson threatened Finnell to keep him from speaking with police,
and Murphy admitted to Finnell that Jackson shot someone. While
Murphy testified that he witnessed Jackson shoot Brewster, he
denied any involvement in the shooting, and he specifically denied
speaking to Finnell about it before or after it occurred.
Due to the extensive corroboration of Murphy’s limited
26
testimony and the other significant independent evidence of
Jackson’s guilt, there is not a reasonable probability that, but for
counsel’s alleged deficiency, the outcome of the trial would have been
different. Thus, Jackson has failed to show prejudice, and this claim
fails. See Payne, 314 Ga. at 329 (3) (a) (concluding that the defendant
failed to show he was prejudiced by trial counsel’s failure to request
an accomplice-instruction because “some of the most incriminating
testimony came from witnesses who could not reasonably be
considered accomplices in the murder” and the accomplice’s
testimony was corroborated by those witnesses or other evidence).
3. In a related claim, Jackson contends that the trial court
plainly erred by failing to instruct the jury on accomplice
corroboration. Assuming without deciding that the trial court erred
by failing to give the instruction, we conclude Jackson failed to show
that it likely affected the outcome of the trial court proceedings. 6
Because Jackson’s trial counsel did not object to the omission
6 Similar to our note in Division 2 (c), we note that Jackson does not does
not explain how the trial court’s failure to give the accomplice-corroboration
instruction likely affected the outcome of his trial.
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of the accomplice-corroboration instruction, we review the trial-
court-error claim for plain error only. “To show plain error, an
appellant must show that (1) the alleged error was not affirmatively
waived, (2) it was obvious beyond reasonable dispute, and (3) it
affected the appellant’s substantial rights, which ordinarily means
showing that it affected the outcome of the trial.” Willis, 315 Ga. at
26 (3) (b). “This Court does not have to analyze all elements of the
plain-error test where an appellant fails to establish one of them.”
Payne, 314 Ga. at 325 (1).
This Court has equated the prejudice step of the plain-error
standard with the prejudice prong for an ineffective assistance of
counsel claim. See Payne, 314 Ga. at 329 (3) (a). Thus, even if we
assume that the trial court erred in not giving an accomplice-
corroboration instruction, Jackson has not shown that this assumed
error likely affected the outcome of the proceedings for the reasons
explained in Division 2 (c). See Williams v. State, 315 Ga. 490, 497
(883 SE2d 733) (2023) (concluding that the defendant failed to show
plain error when “all of the material facts from [the accomplice’s]
28
testimony were independently corroborated by other witnesses and
evidence, such that [the accomplice’s] testimony was cumulative of
other evidence properly admitted at trial”).
4. Finally, because we (a) assumed deficiency in Division 2 (b)
relating to trial counsel’s failure to stipulate to Jackson’s status as
a convicted felon, (b) assumed deficiency in Division 2 (c) relating to
trial counsel’s failure to request an accomplice-corroboration
instruction, and (c) assumed error in Division 3 relating to the trial
court’s failure to give an accomplice-corroboration instruction, we
consider whether the cumulative prejudicial impact of these
admissions requires a new trial. “Under State v. Lane, 308 Ga. 10(838 SE2d 808) (2020), we must ‘consider collectively the prejudicial
effect, if any, of trial court errors, along with the prejudice caused by
any deficient performance of counsel.’” Talley v. State, 314 Ga. 153,
165-166 (4) (875 SE2d 789) (2022). To establish cumulative error,
Jackson must show that (1) at least two errors were committed in
the course of the trial; and (2) considered together along with the
entire record, the multiple errors so infected the jury’s deliberation
29
that they denied Jackson a fundamentally fair trial. See Flood v.
State, 311 Ga. 800, 808 (2) (d) (860 SE2d 731) (2021). Given our
conclusions above and assuming without deciding that the
evidentiary error and the instructional error could be aggregated for
cumulative-error review, 7 we conclude Jackson has failed to
establish that the combined prejudicial effect of these errors require
a new trial. See Jones v. State, 314 Ga. 605, 617 (5) n.9 (878 SE2d
505) (2022).
Judgment affirmed. All the Justices concur.
7 As we have said,
Lane involved only evidentiary issues, which usually are easily
cumulated. Lane, 308 Ga. at 17 (1). We made explicit in Lane that
“[s]ome other types of error may not allow aggregation by their
nature, but that question is not presented here.” Id.
Jones v. State, 314 Ga. 605, 617 (5) n.9 (878 SE2d 505) (2022).
30