DRAUGHN v. THE STATE (Three Cases)

In the Supreme Court of Georgia
Decided: May 3, 2021
S21A0041. DRAUGHN v. THE STATE.
S21A0441. LEVATTE v. THE STATE.
S21A0494. HAYWARD v. THE STATE.
PETERSON, Justice.
Demarco Draughn, Xavier Levatte, and Benny Hayward
appeal their malice murder convictions for the stabbing death of
fellow inmate Bobby Ricks. 1 Draughn and Levatte challenge the
1 The crimes occurred on October 11, 2017. On September 25, 2018, a
Hancock County grand jury indicted Draughn, Levatte, Hayward, and Diante
Thompson for malice murder, felony murder, and aggravated assault.
Following a joint trial held from July 30 to August 2, 2019, a jury found
Draughn, Levatte, and Hayward guilty on all counts. Thompson apparently
was tried and convicted separately after the trial of his co-indictees; his
attorney was ill on the morning of the joint trial. Draughn and Hayward were
sentenced to life without parole for malice murder, to be served consecutively
to sentences they were already serving for other crimes; the remaining counts
merged or were vacated by operation of law. Levatte was sentenced to life
without parole for malice murder, to be served concurrently with a sentence he
was already serving for another crime; the remaining counts merged or were
vacated by operation of law. Draughn, Levatte, and Hayward timely filed
motions for new trial, which they later amended. The trial court denied
Draughn’s and Hayward’s motions in separate orders filed on May 26, 2020,
and it denied Levatte’s motion in an order filed on July 15, 2020. Draughn and
Hayward timely filed notices of appeal, and their cases were docketed to this
sufficiency of the evidence presented at their joint trial to support
their convictions. Levatte also argues that the State’s
mischaracterization of its burden of proof during closing argument
amounted to structural error and that his trial counsel was
ineffective for failing to object to that mischaracterization. He
further contends that the trial court erred by denying his motion to
sever and by permitting the prosecutor and a witness to identify him
and his co-defendants in a video of the stabbing. Hayward
challenges the trial court’s permitting lay witness identification of
him through the video of the stabbing and still images from the
video, as well as the trial court’s denial of his own motion to sever
and of his request for a charge on simple battery.
We hold that the evidence was sufficient to convict Draughn
and Levatte. Levatte’s claim that the trial court erred in permitting
the State’s alleged mischaracterization of its burden of proof during
Court’s term beginning in December 2020 and submitted for decisions on the
briefs. Levatte timely filed a notice of appeal to the Court of Appeals, which
then granted his motion to transfer his appeal to this Court. His case was then
docketed to this Court’s term beginning in December 2020 and submitted for a
decision on the briefs.
2
closing argument is waived because Levatte did not object at trial,
and Levatte’s ineffective assistance claim fails because he failed to
show that any error likely affected the outcome of his trial. Levatte’s
and Hayward’s challenges to the trial court’s permitting
identification of them through a video and through still images from
the video fail because the prosecutor’s identification of Levatte
during opening statements was harmless, the lay-witness
identification of Levatte was proper, and any identification of
Hayward was cumulative of his identification of himself. The trial
court did not abuse its discretion in denying Levatte’s and
Hayward’s respective motions to sever because neither defendant
showed that he was prejudiced and denied due process by co-
defendants’ antagonistic defenses that separate trials may have
avoided. Finally, Hayward failed to show that the trial court’s denial
of his request for a charge on simple battery likely affected the
outcome of his trial. We affirm the convictions in all three cases.
The evidence presented at trial showed the following. On
October 11, 2017, at approximately 11:15 p.m., Ricks, an inmate at
3
Hancock State Prison, was approached by four inmates while
showering in the H-1 housing dormitory of the prison and fatally
stabbed. Ricks’s murder was captured on surveillance video.
Portions of the video were played for the jury, and still images from
the video recordings were admitted into evidence as well.
Erica Hood, a corrections officer, was working in the H-1 dorm
on the night of the murder. She saw Ricks bleeding profusely and
running away from inmates armed with shanks. Officer Hood
radioed for the sally-port entrance to the dorm (a boxed-in area with
two doors used to control movement between two areas of the prison)
to be opened, allowing Ricks and Hood to exit. Ricks was pronounced
dead at 12:54 a.m. on October 12 while he was being transported to
a hospital. He died as a result of 11 stab wounds.
Officer Hood was substituting in Ricks’s dorm on the night that
he was killed, and she told investigators that she was able to identify
only one of Ricks’s attackers, whom she described for the jury as a
brown-skinned black male with “black eyes, jagged teeth, and a
4
receding hairline.” 2 Jermel Tannahill, an inmate who testified that
he witnessed the assault on Ricks, identified Draughn, Levatte, and
Hayward in still images from the surveillance video and in court as
being among Ricks’s assailants. Testimony by Agent Gittins, the
lead investigator on the case, showed that the decision to arrest
Draughn, Levatte, and Hayward for the murder was based in part
on prison official Eric Martin’s identification of those three inmates
as participants in the attack after viewing the video and an enlarged
screenshot.
Patrick Renfroe, an inmate whom investigators initially
considered a suspect in Ricks’s murder, told an investigator that
Hayward and co-indictee Diante Thompson, along with someone he
called “Slayer” and other inmates, had killed Ricks. Renfroe also told
the investigator that Ricks was killed because he was a member of
the Bloods gang and had been engaging in homosexual activity,
2 Although an appellate brief filed by the State says that this description
was “eventually shown by photographs” to match that of Diante Thompson,
Officer Hood did not identify the attacker by name at trial, and the State does
not argue that the attacker Officer Hood described was any of the three
defendants in this appeal.
5
which was against the gang’s code. The recording of Renfroe’s
interview with the investigator was played for the jury. In his trial
testimony, Renfroe claimed that Levatte was in their shared cell at
the time of the attack. Otherwise, Renfroe claimed to recall little
about the murder or his statement to officials. Another prison
worker, Maquiesha Brown, told the jury that Draughn, Hayward,
Levatte, Thompson, and Renfroe were all members of the Bloods
gang.
The video recording depicted one of Ricks’s assailants removing
his own shirt after the attack and leaving it on the dorm floor.
Examination of the discarded shirt revealed the presence of
Draughn’s DNA. Jail staff later located homemade sharp objects,
known as shanks, in an enclosed space used to house and conceal
plumbing pipes that could be accessed through a hole in the wall of
Draughn’s cell. DNA testing revealed the presence of Draughn’s
DNA on the handle of one of the shanks and the presence of Ricks’s
DNA on the blade of that shank.
Levatte’s DNA was not found on any of the physical evidence
6
that was tested, including the shanks. But jail staff located in
Levatte and Renfroe’s cell a pair of recently cleaned, white tennis
shoes and a pair of prison uniform pants with stripes down the leg
soaking in a bucket of bleach. Both Levatte and Renfroe told
investigators that the shoes and bleached clothing belonged to
Renfroe, but the pants had “G9” written inside the waistband;
Levatte’s nickname was “Glock 9,” and a laundry bag in his cell was
labeled with this nickname. Moreover, the man whom Tannahill
identified as “Glock 9” in enhanced still images from the surveillance
video of the attack was wearing white pants and white shoes, and
white shoes were not standard-issue uniform for inmates at that
time. When interviewed on the morning after the stabbing, Levatte
initially claimed that he was alone in his cell during the attack. But
when told that he was seen on surveillance video, Levatte admitted
to investigators that he came out of his cell but claimed that he saw
only the end of the attack.
Hayward told investigators that he was merely “walking past”
when the attack occurred, claiming he was wearing shorts at the
7
time. But investigators found Ricks’s blood on the full-length pants
that Hayward wore while being interviewed.
1. Draughn and Levatte challenge the sufficiency of the
evidence supporting their malice murder convictions. Their claims
fail.
When evaluating the sufficiency of evidence as a matter of
federal due process under the Fourteenth Amendment to the United
States Constitution, the proper standard of review is whether a
rational trier of fact could have found the defendant guilty beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt
2781, 61 LE2d 560) (1979). We view the evidence in the “light most
favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence.” Hayes v. State, 292 Ga.
506, 506 (739 SE2d 313) (2013) (citation and punctuation omitted).
So viewed, the evidence presented at trial was sufficient for a
rational jury to find Draughn and Levatte guilty beyond a
reasonable doubt of malice murder. Tannahill, a fellow inmate and
eyewitness, identified Draughn and Levatte at trial as two of Ricks’s
8
assailants. And testimony established that Martin had also
identified Draughn and Levatte as assailants based on the
surveillance video of the attack and enhanced still images from the
video. Physical evidence connected Draughn and Levatte to the
attack, including the shirt one of the attackers discarded that had
Draughn’s DNA on it; the shank with Draughn’s DNA on the handle
and Ricks’s DNA on the blade found in an enclosed space accessible
through a hole in the wall of Draughn’s cell; and the recently cleaned
white sneakers and bleached white pants with a shortened version
of Levatte’s nickname written inside the waistband that
investigators found in Levatte’s cell after the attack and that
corresponded with Tannahill’s identification of Levatte as the
assailant wearing white sneakers. And Levatte gave investigators
an inconsistent account of his whereabouts during the attack,
initially saying he was in his cell the entire time but changing his
story when told that he was seen on the surveillance video. Although
there was conflicting evidence as to Draughn and Levatte’s
involvement, “[i]t is the jury’s role to resolve conflicts in the evidence
9
and to determine the credibility of witnesses, and the resolution of
such conflicts adversely to the defendant does not render the
evidence insufficient.” Hart v. State, 305 Ga. 681, 683 (827 SE2d
642) (2019) (citation and punctuation omitted). The evidence was
sufficient. 3
2. Levatte contends that the State mischaracterized its burden
of proof during closing argument. He also claims that his counsel
was ineffective for failing to object to the State’s
mischaracterization. Any claim of trial court error was waived, and
Levatte has failed to show he was prejudiced by counsel’s failure to
object.
During closing argument, the prosecutor made the following
statements regarding the reasonable doubt standard:
Reasonable doubt is not beyond all doubt. It’s not 90
percent or 95 percent. In fact, the Judge will tell you it’s
not through a moral certainty or a mathematical
certainty. You don’t have to ring any sort of bell. It’s
whenever you define the truth.
3Hayward does not raise the sufficiency of the evidence on appeal, so we
do not address it.
10
Levatte argues that these statements erroneously describe the
burden of proof and created a structural error that requires reversal.
(a) Levatte did not object to the statements at trial, so he has
waived direct review of the prosecutor’s statements on appeal. See
Gates v. State, 298 Ga. 324, 328-329 (4) (781 SE2d 772) (2016)
(unlike evidentiary errors, unobjected to errors “based on improper
remarks during closing argument are not subject to review on appeal
for plain error”).
(b) Levatte also argues that his trial counsel was ineffective for
failing to object to the prosecutor’s statements about reasonable
doubt. For Levatte to prevail on his ineffectiveness claim, he must
show (1) that his trial counsel’s performance was constitutionally
deficient and (2) that he was prejudiced by counsel’s deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687 (104
SCt 2052, 80 LE2d 674) (1984). If Levatte fails to establish one prong
of the Strickland test, “we need not examine the other.” Robinson v.
State, 308 Ga. 543, 553 (3) (842 SE2d 54) (2020). To establish
prejudice, Levatte “must show that there is a reasonable probability
11
that, but for counsel’s unprofessional error[], the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
To determine whether Levatte has shown Strickland prejudice, “we
review the record de novo and weigh the evidence as we would expect
reasonable jurors to have done.” Swanson v. State, 306 Ga. 153, 163
(2) (b) (829 SE2d 312) (2019) (citation and punctuation omitted).
In support of his ineffectiveness claim, Levatte relies on
Debelbot v. State, 308 Ga. 165 (839 SE2d 513) (2020), in which we
held that defense counsel was ineffective for failing to object to a
prosecutor’s “clearly wrong” description of reasonable doubt during
closing argument. 4 In Debelbot, we concluded that the erroneous
description may have affected the trial outcome because the case
against the two defendants “was almost entirely circumstantial”
4 The prosecutor in that case stated that reasonable doubt “does not
mean to a mathematical certainty. . . . You don’t have to be ninety percent sure.
You don’t have to be eighty percent sure. You don’t have to be fifty-one percent
sure.” Debelbot, 308 Ga. at 167 (emphasis in original). We explained that
although reasonable doubt is not reducible to a specific percentage, it was
“obviously wrong” to suggest that reasonable doubt is a lower bar than
preponderance of the evidence, which was the implication of “[y]ou don’t have
to be fifty-one-percent sure.” Id.
12
with legal sufficiency of the evidence presenting a “close question[,]”
and because the trial court’s jury charge on reasonable doubt “did
not cure the State’s obviously wrong argument” and “may well have
been understood by the jury as reinforcing it.” Id. at 168-170
(citations and punctuation omitted).
Assuming without deciding that Levatte’s trial counsel was
deficient for not objecting to the prosecutor’s statements about
reasonable doubt, 5 Levatte has failed to show a reasonable
probability that the result of his trial would have been different but
for those statements. First, unlike in Debelbot, the case against
Levatte was plainly sufficient given that an eyewitness identified
Levatte as one of the assailants, Levatte changed his story about his
whereabouts during the attack, and the white shoes and pants
soaking in bleach with Levatte’s nickname written inside the
5 Because of our conclusion that the prosecutor’s comments did not
prejudice Levatte, we need not decide whether defense counsel was deficient
for not objecting. But we do point out that the statements were at the very least
inadvisable. See Debelbot, 308 Ga. at 169 n.9 (“We admonish lawyers not to
confuse jurors by attempting to quantify a standard of proof that is not
susceptible of quantification.”).
13
waistband found in Levatte’s cell corroborated testimony that he
was the assailant with white tennis shoes and suggested that he was
trying to destroy evidence. Second, any error in the State’s
characterization of reasonable doubt was considerably less blatant
than the error in Debelbot and – unlike in Debelbot – was cured by
the trial court’s instructions to the jury, which explained
presumption of innocence, burden of proof, and reasonable doubt
accurately and at length. See Davis v. State, 294 Ga. 486, 488 (3) (b)
(754 SE2d 67) (2014) (where the trial court “fully and correctly
instructed the jury on the burden of proof,” defense counsel’s failure
to object to prosecutor’s remarks allegedly advocating a lower
standard of proof did not prejudice defendant because the outcome
of the trial would have been no different even if defense counsel
objected). Considering the strength of the evidence against Levatte
and the trial court’s thorough and correct instructions to the jury, it
is unlikely that defense counsel’s failure to object to the prosecutor’s
statements about reasonable doubt affected the outcome of Levatte’s
14
trial. 6
3. Levatte argues that the trial court erred by permitting the
prosecutor to identify Levatte, his co-defendants, and the victim
from portions of the surveillance video recording shown to the jury
during opening statements. Levatte’s claim fails because any error
was harmless.
Prior to trial, Levatte filed a motion in limine asking the trial
court to prevent the State and the State’s witnesses from identifying
the defendants from a video recording or photograph without first
obtaining permission from the trial court outside the jury’s presence.
Levatte claims that the trial court granted his motion in limine (a
point on which the record is unclear) and argues that the State
6Levatte also argues that his co-defendants’ questions during voir dire
and statements during closing argument focusing on the preponderance of the
evidence, taken together with the prosecutor’s statements during closing,
confused the jury as to the proper standard. But his co-defendants did not
misstate the reasonable doubt standard; instead, they emphasized that it is a
higher standard of proof. During voir dire, Hayward’s counsel described the
difference between the preponderance of the evidence and reasonable doubt
standards and asked potential jurors whether they understood the distinction
between them. And during closing argument, Draughn’s attorney argued that
evidence against Draughn did not meet even the preponderance of the evidence
standard, much less the reasonable doubt standard.
15
violated that ruling during its opening statement when the
prosecutor played the surveillance video and “identified” Levatte
and his co-defendants as the assailants in the video. But even
assuming that the trial court granted Levatte’s motion in limine and
that the State violated the trial court’s ruling on the motion, any
error was harmless because evidence identifying Levatte and his co-
defendants as the individuals conducting the attack and pointing
out their positions in still images from the surveillance video was
introduced by Tannahill’s testimony later in the trial. See Keever v.
Dellinger, 291 Ga. 860, 861 (3) (734 SE2d 874) (2012) (any error in
counsel’s statements during opening argument summarizing the
testimony of a witness who did not ultimately testify was harmless
because the evidence was properly introduced by other witness
testimony).
4. Next, Levatte and Hayward argue that the trial court erred
by permitting the State to elicit inadmissible testimony that invaded
the jury’s province to identify the defendants in the surveillance
video and enhanced still images from the video. There was no error.
16
Levatte argues that the trial court erred in allowing Tannahill
to identify him in still images taken from the surveillance video,
contending that opinion evidence as to identification is generally
admissible only where average jurors cannot themselves identify
whether an individual in a video or still image is the defendant.7 But
Tannahill did not offer opinion evidence; he testified from personal
knowledge. Under Georgia’s Evidence Code, a lay witness “may not
testify to a matter unless evidence is introduced sufficient to support
a finding that the witness has personal knowledge of such matter.
Evidence to prove personal knowledge may, but need not, consist of
the witness’s own testimony.” OCGA § 24-6-602 (“Rule 602”). We
have previously concluded that the pertinent language of Rule 602
tracks that of Federal Rule of Evidence 602, meaning that we “look
7 Levatte appears to be making an argument that Tannahill’s
identification of him is opinion testimony. Admissibility of opinion testimony
falls under OCGA § 24-7-701 (“Rule 701”), which states that non-expert
witness testimony in the form of opinions or inferences is limited to those
opinions or inferences which are rationally based on the witness’s perception;
helpful to gain a clear understanding of the witness’s testimony or determine
a fact in issue; and not based on scientific, technical, or other specialized
knowledge. See OCGA § 24-7-701 (a) (1)-(3).
17
to the decisions of the federal appellate courts, particularly the
Eleventh Circuit, for guidance in applying this provision.” Kirby v.
State, 304 Ga. 472, 478 (3) (b) n.4 (819 SE2d 468) (2018). Under
Federal Rule of Evidence 602, witnesses may testify about events
they personally observed. See United States v. Barnes, 481 Fed.
Appx. 505, 512 (11th Cir. 2012) (officer’s testimony about the
passenger of a vehicle he pursued was admissible because it was
based on personal knowledge).
Here, Tannahill was an eyewitness to the events depicted in
the surveillance video. Therefore, Tannahill’s testimony identifying
the defendants from the still images from the surveillance video was
admissible because he was testifying based on his recollection of the
stabbing, not providing his opinion. The trial court did not abuse its
discretion in allowing Tannahill’s identification testimony. See
United States v. Shabazz, 564 F3d 280, 287 (3d Cir. 2009) (rejecting
defendant’s claim that witness’s identification of defendant in
images from a surveillance video was inadmissible as opinion
evidence because the witness, who took part in the events depicted
18
in the video, was testifying from personal knowledge).
Hayward similarly claims that the court erred in allowing “lay
witnesses” to identify him from the video and still images from the
video, but he does not identify which lay witnesses he is referencing.
Regardless, Hayward affirmatively waived his right to appellate
review of any such identification testimony because he invited
identification of himself from the video: his defense counsel asked
Tannahill during cross-examination to identify Hayward in the
video and used this identification to later argue to the jury that
Hayward’s position during the attack showed that he was a mere
bystander. See Heinze v. State, ____ Ga. ____, ____ (2) (852 SE2d
504) (2020) (by agreeing to trial court’s actions, defendant invited
the actions and affirmatively waived any claim of error regarding
them); Medina v. State, 309 Ga. 432, 438 (2) (844 SE2d 767) (2020)
(“A party may not complain on appeal of a ruling that he contributed
to or acquiesced in by his own action, trial strategy, or conduct.”
(citation and punctuation omitted)).
But even if Hayward did not waive his right to appellate
19
review, any error was harmless. See Adkins v. State, 301 Ga. 153,
158 (3) (a) (800 SE2d 341) (2017) (“A nonconstitutional error is
harmless if it is highly probable that the error did not contribute to
the verdict”). Because Hayward’s counsel acknowledged that
Hayward was the person identified in the video and still images and
elicited testimony to that point, it is highly probable that the
outcome of Hayward’s trial would have been no different even if the
trial court had prevented lay witnesses from identifying Hayward in
the video and still images.
5. Levatte and Hayward argue that the trial court erred in
denying their motions to sever their cases from that of their co-
defendants. The trial court did not abuse its discretion.
“When two or more defendants are jointly indicted for a capital
offense” and the State does not seek the death penalty, “such
defendants may be tried jointly or separately in the discretion of the
trial court.” OCGA § 17-8-4 (a). Accordingly, we review a trial court’s
decision to deny a severance motion for an abuse of discretion. See
Smith v. State, 308 Ga. 81, 85 (2) (839 SE2d 630) (2020). “In ruling
20
on a motion to sever, a trial court should consider: (1) the likelihood
of confusion of the evidence and law; (2) the possibility that evidence
against one defendant may be considered against the other
defendant; and (3) the presence or absence of antagonistic defenses.”
Id. (citation and punctuation omitted). And to obtain a new trial
based on the denial of a severance motion, Levatte and Hayward
must show a “clear prejudice and denial of due process as a result of
[their] co-defendants’ antagonistic defenses that might have been
avoided by separate trials.” Walter v. State, 304 Ga. 760, 763 (2) (822
SE2d 266) (2018) (citation and punctuation omitted).
Hayward argues that there is a substantial likelihood that the
jury was confused by the particulars of the evidence and law and
that evidence against the other defendants was considered against
him. Similarly, Levatte argues that his conviction was likely the
result of “spillover evidence” — that is, significant and substantial
evidence against co-defendants that tainted the jury’s consideration
of much weaker evidence against another defendant. But it is
unlikely that the jury confused the evidence or the law applicable to
21
Levatte or Hayward because all three defendants were charged with
the same offenses stemming from the same incident with largely the
same evidence; the jury was instructed to determine guilt or
innocence of each defendant separately; the jury returned a separate
verdict for each defendant; and the jury was instructed on mere
association, mere presence, and parties to a crime. See McClendon
v. State, 299 Ga. 611, 615 (3) (791 SE2d 69) (2016).
Moreover, neither Levatte nor Hayward show that their co-
defendants raised antagonistic defenses against them, much less
that they were thereby prejudiced or denied due process. None of the
defendants in this case testified, neither Levatte nor Hayward point
to particular testimony elicited by defense counsel or otherwise
presented by their co-defendants to support their argument that
severance was required, and there was substantial evidence of
Levatte’s and Hayward’s guilt that would have been admitted
regardless of severance. See Walter, 304 Ga. at 763-764 (2)
(defendant showed no prejudice or denial of due process in trial
court’s denial of his severance motion when none of the defendants
22
testified, defendant could not point to particular testimony
supporting his argument that severance was required, and
substantial evidence of defendant’s guilt would have come in
regardless of severance). Although the evidence may have been
stronger for some of the defendants than for others, where, as here,
evidence exists that the defendants acted in concert, the trial court
is not required to grant a motion to sever merely because the
evidence against one co-defendant is stronger. See Smith, 308 Ga.
at 85-87 (2). The trial court did not abuse its discretion in denying
Levatte’s and Hayward’s severance motions.
6. Finally, Hayward argues that the trial court abused its
discretion by denying his request for a jury charge on the lesser
offense of simple battery. Hayward’s claim fails because he has not
shown plain error.
Hayward requested a jury charge on simple battery, which the
trial court denied. Hayward objected during the charge conference
but not did not object again after the jury instructions were given,
so we review the trial court’s failure to charge on simple battery for
23
plain error. See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012)
(an “objection voiced at the charge conference does not preserve
objections to the charge as subsequently given”). To establish plain
error, Hayward “must point to an error that was not affirmatively
waived, the error must have been clear and not open to reasonable
dispute, the error must have affected his substantial rights, and the
error must have seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Denson v. State, 307 Ga. 545,
547-548 (2) (837 SE2d 261) (2019) (citation and punctuation
omitted). To show that an error affected his substantial rights,
Hayward must make an “affirmative showing that the error
probably did affect the outcome below.” McKinney v. State, 307 Ga.
129, 135 (2) (b) (834 SE2d 741) (2019) (citation and punctuation
omitted). If Hayward fails to meet any one of the elements of the
plain error test, his claim fails. See Denson, 307 Ga. at 548 (2).
Simple battery occurs when a person “[i]ntentionally makes
physical contact of an insulting or provoking nature with the person
of another; or . . . [i]ntentionally causes physical harm to another.”
24
OCGA § 16-5-23 (a) (1)-(2) (emphasis supplied). At trial, defense
counsel elicited testimony and argued in closing that Hayward
physically touched Ricks after Ricks approached and put his hands
on Hayward. On appeal, Hayward argues that his only contact with
Ricks was when he instinctively put his hands up to prevent Ricks
from running into him at the shower door, and when Ricks lunged
toward him in the common area.
The trial court’s denial of Hayward’s request for a simple
battery charge was not plain error because Hayward has not shown
that it probably impacted the outcome of his trial. To do so, Hayward
would have to show that, if given a simple battery charge, the jury
likely would have found that Hayward committed only simple
battery ⸺ that he intentionally made physical contact with Ricks
during the assault but that the intentional contact was not an
attempt to assist in the assault on Ricks. But a finding of intentional
contact would be contrary to Hayward’s own argument during trial
that any contact between him and Ricks was initiated by Ricks and
unintentional on his part. And there was substantial evidence that
25
Hayward’s actions during the assault were intended to assist his co-
defendants in assaulting Ricks. In addition to Tannahill and
Renfroe’s identification of Hayward as one of Ricks’s assailants, the
surveillance video was played during trial and the individual
identified as Hayward moved in concert with the group of
individuals stabbing Ricks as they approached, attacked, and
withdrew, while other inmates backed away during the attack.
Considering Hayward’s own argument during trial and the
considerable evidence of his participation in the assault of Ricks, it
is unlikely that the jury would have found him guilty of only simple
battery even if the trial court granted his request for the charge. 8
Judgments affirmed. All the Justices concur.
8 Neither Levatte nor Hayward make an argument that all the errors we
assume today, though individually harmless, nevertheless harmed them when
aggregated. And no such cumulative prejudice is apparent to us on this record.
See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A] defendant who
wishes to take advantage of the [cumulative error rule] should explain to the
reviewing court just how he was prejudiced by the cumulative effect of multiple
errors.”); Armstrong v. State, 310 Ga. 598, 607 (5) n.13 (852 SE2d 824) (2020).
26