Harris v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: May 3, 2022
S22A0251. HARRIS v. THE STATE.
PETERSON, Justice.
Jordan Robert Harris appeals his convictions for felony murder
and other charges stemming from the July 2010 shooting of Walter
Phelps during the robbery of Phelps’s store; Phelps died from blood
clots over a month after the shooting. 1 Harris argues that the
Phelps was shot on July 3, 2010. On October 27, 2010, a Dougherty
1
County grand jury indicted Harris along with five other defendants. The
indictment charged Harris with two counts of felony murder (predicated on
armed robbery and aggravated assault), armed robbery, three counts of
aggravated assault (committed against Phelps, Teresa Fletcher, and Carl
Terrell), conspiracy to commit armed robbery, conspiracy to commit felony
murder, three counts of possession of a firearm during the commission of a
felony, and financial transaction card fraud. Along with co-defendant Ezekiel
James, Harris was tried before a jury in August 2014. The jury found Harris
guilty on all charged counts. On January 7, 2015, the trial court sentenced
Harris to serve life in prison for felony murder (predicated on armed robbery),
20-year prison sentences for the two counts of aggravated assault committed
against Fletcher and Terrell (concurrent with the life sentence), consecutive
five-year sentences for each of the three firearms counts (concurrent with one
evidence presented at his trial was insufficient to support his
convictions and that the trial court erred by admitting other-acts
evidence, unreliable identifications of him, evidence marred by
violations of Brady 2 and Georgia’s criminal discovery statute, and
inadmissible hearsay. We conclude that the evidence was sufficient
and the trial court did not abuse its discretion in admitting the
identification or other-acts evidence. We conclude that any error in
the admission of the alleged hearsay was harmless. And we conclude
that Harris has not shown a Brady violation and waived any claim
of error under the discovery statute. We therefore affirm.
The evidence presented at trial showed that Phelps owned the
P&P Garden Center in Dougherty County. On July 3, 2010, Phelps
arrived at the store around 7:00 a.m. to prepare for its opening.
Shortly after Phelps arrived, a man came into the store, wearing a
another), and a concurrent three-year sentence for the credit card fraud count.
The other counts merged or were vacated by operation of law. Harris filed a
motion for new trial on January 15, 2015; the motion was amended by
appellate counsel on June 30, 2020. The trial court denied the motion in an
order entered on March 18, 2021. Harris filed a timely notice of appeal and the
case was docketed to this Court’s term beginning in December 2021 and
submitted for consideration on the briefs.
2 Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963).
2
hoodie and keeping his hand in his pockets. The man asked for work,
then left. At around 7:35 a.m., Phelps’s friend Mercer Garrett came
by, and Phelps, who seemed rattled, reported that he had just been
visited by a man who had asked for work and seemed suspicious.
Garrett left after a few minutes. The suspicious man returned, shot
Phelps, then asked where the store’s money was kept.
An employee of the store, Teresa Fletcher, arrived at about 7:45
a.m. and found Phelps lying on the floor with a gunshot wound. A
man pointed a gun at Fletcher and then at other employees who
subsequently arrived — Carl Terrell and Ryan Richardson3 — as the
man attempted to find the store’s cash. The man, whom Fletcher
later identified as Harris, demanded that the employees empty their
pockets. Interrupted by additional store employees, Harris grabbed
the cash register, placed it in a bag, and left with the bag and
Phelps’s keys and wallet.
When EMTs arrived, they found Phelps in poor condition,
3 Richardson was among those indicted along with Harris for felony
murder and other offenses. Richardson pleaded guilty to various counts prior
to Harris’s trial but did not testify at that trial.
3
bleeding profusely. Phelps was only semi-conscious when
transported to a hospital. He gave a statement to an investigator at
the hospital on the day of the shooting, as well as on July 13; both
statements were recorded and played for the jury. In the second
statement, Phelps described the suspicious man who had entered
the store, left, then returned and shot him. Phelps described the
shooter as a light-skinned black male in his late teens or early
twenties, around six feet tall, and weighing 160 to 180 pounds.
Phelps was shown photo lineups that did not include Harris; Phelps
did not identify anyone as the shooter, although he said one person
looked familiar.
The doctor who treated Phelps in the emergency room
described his gunshot wounds as life-threatening. She said that
Phelps appeared to be otherwise healthy and showed no signs of
blood clots. After surgery, Phelps was assigned an ICU bed; the
doctor who cared for him there noted no history of blood clots. Phelps
was released from the hospital on July 24, 2010. Although he was
ambulatory while at home, he remained on oxygen and had physical
4
limitations. Phelps returned to the hospital on August 7, 2010, and
died that same day.
The medical examiner who performed Phelps’s autopsy
testified that Phelps’s death was caused by blood clots that resulted
from the gunshot wound to Phelps’s torso. She testified that two of
the three primary risk factors for blood clots — immobility and
physical trauma — were present as a result of the Phelps’s gunshot
wound. She ruled out other possible causes of clots, including
Phelps’s genetics, age, weight, smoking history, heart issues, and
other health history.
In addition to Fletcher’s out-of-court and in-court identification
of Harris, he also was implicated in the shooting by co-defendant
Jamon Carter, who pleaded guilty to related charges prior to the
trial of Harris and co-defendant Ezekiel James.4 Carter testified at
Harris’s trial that in late June 2010, Harris discussed plans to “do a
lick” at the P&P store to get some money to purchase clothing at a
4 The jury found James guilty of financial transaction card fraud but not
guilty of the other charges against him.
5
Polo outlet store, with James serving as the driver. Carter testified
that he, Harris, James, and another man went to the Polo store on
July 3, the day of the shooting, and Harris paid for items selected by
each of the men with a credit card. Carter identified Harris in a
surveillance video recording from the Polo store. Carter also testified
to conversations with James after the surveillance video was aired
on the news in which James said, “we was on the news,” and
wondered aloud “why [Harris] shot the man.”
As detailed further in Division 3, the State also introduced
evidence of three prior armed robberies of convenience stores
committed by Harris.
1. Harris argues that the evidence is insufficient to support
his convictions for three reasons. We disagree.
When evaluating the sufficiency of evidence as a matter of
constitutional due process, we must determine 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). In making that determination, “we view
6
the evidence in the light most favorable to the verdict, and we put
aside any questions about conflicting evidence, the credibility of
witnesses, or the weight of the evidence, leaving the resolution of
such things to the discretion of the [jury].” Wilkerson v. State, 307
Ga. 574, 574 (837 SE2d 300) (2019) (citation and punctuation
omitted). “As long as there is some competent evidence, even if
contradicted, to support each fact necessary to make out the State’s
case, the jury’s verdict will be upheld.” Scott v. State, 309 Ga. 764,
766 (1) (848 SE2d 448) (2020) (citation and punctuation omitted).
(a) First, Harris argues that the evidence presented at trial
was insufficient to sustain his convictions generally because the
State failed to prove that he was the person who shot Phelps. In
support of this argument, he argues that Fletcher’s pretrial and in-
person identifications of him never should have been admitted
because, as discussed in more detail in Division 2, the identifications
allegedly were unreliable and the product of impermissibly
suggestive procedures. But “in reviewing the sufficiency of the
evidence, we consider all of the evidence admitted by the trial court,
7
regardless of whether that evidence was admitted erroneously.”
Chavers v. State, 304 Ga. 887, 892 (2) n.4 (823 SE2d 283) (2019)
(citation and punctuation omitted). Harris also argues that this
Court “should weigh Ms. Fletcher’s credibility and her inconsistent
statements against the State.” But as noted above, that was a
matter for the jury. The State presented ample evidence, including
the testimony of Carter and Fletcher, for the jury to conclude that
Harris shot Phelps.
(b) Harris next argues that the evidence was insufficient to
sustain his felony murder conviction because the State did not prove
a nexus between the shooting and Phelps’s death from blood clots.
We disagree. A person commits felony murder when, “in the
commission of a felony, he or she causes the death of another human
being irrespective of malice.” OCGA § 16-5-1 (c). “The element of
causation is determined under the proximate cause standard.”
Campbell-Williams v. State, 309 Ga. 585, 587 (2) (a) (847 SE2d 583)
(2020). “Proximate causation imposes liability for the reasonably
foreseeable results of criminal conduct if there is no sufficient,
8
independent, and unforeseen intervening cause.” Treadaway v.
State, 308 Ga. 882, 884 (1) (843 SE2d 784) (2020) (citation and
punctuation omitted).
An unlawful injury is the proximate cause of death when:
(1) the injury itself constituted the sole proximate cause
of death; or (2) the injury directly and materially
contributed to the happening of a subsequent accruing
immediate cause of death; or (3) the injury materially
accelerated the death, although proximately occasioned
by a pre-existing cause.
Id. (citation omitted).
Here, the evidence showed that Phelps developed blood clots
only after Harris shot him in the torso. The doctor who treated
Phelps’s life-threatening wounds stated that Phelps appeared to be
otherwise healthy and showed no signs of blood clots. The medical
examiner testified that Phelps’s death was caused by blood clots
resulting from his gunshot wound. She ruled out possible causes of
clots unrelated to the shooting, such as weight and health history.
Moreover, “[w]hether [Harris]’s actions were the sole cause of
[Phelps]’s death or would have otherwise caused his death under
different circumstances is immaterial.” Treadaway, 308 Ga. at 885
9
(1). “[T]he offender takes [his] victim as [he] finds him.” Id. (citation
and punctuation omitted). The State thus provided the jury with
sufficient evidence to conclude that the shooting was the proximate
cause of Phelps’s death. See Eberhart v. State, 307 Ga. 254, 261-262
(2) (a) (835 SE2d 192) (2019) (evidence sufficient to uphold
defendant’s felony murder conviction predicated on aggravated
assault where medical examiner testified that the victim died from
hypertensive cardiovascular disease exacerbated by physical
exertion and application of TASER by defendant); Bryant v. State,
270 Ga. 266, 268-269 (1) (a) (507 SE2d 451) (1998) (evidence
sufficient to sustain felony murder convictions notwithstanding that
gunshot victim who suffered blood clot previously suffered from
some conditions that might have put her at risk for a clot).
(c) In his final challenge to the sufficiency of the evidence,
Harris argues that the evidence was insufficient to sustain his
conviction for the aggravated assault of Terrell and the associated
firearm conviction. The aggravated assault count at issue charged
Harris with assaulting Terrell “with intent to rob by pointing a
10
handgun, a firearm, and a deadly weapon . . . at Carl Terrell and
demanding United States currency and/or valuables[.]” Harris
claims that the evidence was insufficient to support his conviction
on this count because there was no testimony that Harris attempted
or intended to rob Terrell. The count at issue required the State to
prove not only that Harris had assaulted Terrell, but that he did so
with the intent to rob. See Thomas v. State, 292 Ga. 429, 433 (4) (738
SE2d 571) (2013). But although Terrell testified that he did not see
anyone other than Richardson during the robbery and that the
gunman did not ask for any wallet or money or threaten to harm
him, Fletcher testified that Harris told “everyone,” which
necessarily includes Terrell, to take what they had out of their
pockets. The testimony of a single witness is generally sufficient to
prove a fact. See OCGA § 24-14-8.5 And again, conflicts in the
evidence are for the jury to resolve. The jury was authorized to
5 The jury also heard testimony that the gunman sought money
belonging to the store as Terrell lay on the floor. But given Fletcher’s testimony
that Harris told “everyone” to empty their pockets, we need not consider
whether Harris’s intent to rob the store was sufficient to satisfy the intent-to-
rob element as to the aggravated assault of Terrell.
11
conclude that Harris assaulted Terrell with an intent to rob.
2. Harris next argues that the trial court erred in admitting
Fletcher’s pretrial and in-court identifications of him. He contends
that this violated his due process rights because the pretrial
identification procedure was unreliable and Fletcher’s in-court
identification was tainted by it. We disagree.
More than two months after the shooting, Fletcher was shown
a photo lineup in which she identified Harris’s photo as that of the
store robber. Harris filed a motion to suppress the pretrial, and any
in-court, identification by Fletcher. The investigator who conducted
the lineup with Fletcher testified at a pretrial hearing that in
selecting photos, he used software that suggested pictures based on
Harris’s height and weight. He testified that he selected five photos
from those suggestions and that all were of persons of the same race
and gender as Harris, with similar facial characteristics. The
investigator testified that his procedure in conducting a lineup is to
tell the witness to be careful, take as much time as necessary, and
look at each photo individually. He testified that he told Fletcher
12
that the perpetrator may or may not be in the lineup. In her
testimony, Fletcher did not seem to recall this final admonition, but
she did remember that the investigator did not indicate who the
police suspected was the perpetrator.
The trial court summarily denied the motion to suppress.
Following a recess in the middle of Fletcher’s trial testimony, Harris
made a renewed objection to her pretrial identification; the trial
court gave Harris a continuing objection.
Harris first argues that the pretrial lineup was impermissibly
suggestive. “If an out-of-court identification by a witness is so
impermissibly suggestive that it could result in a substantial
likelihood of misidentification, evidence of that out-of-court
identification violates due process and is inadmissible at trial.”
Westbrook v. State, 308 Ga. 92, 99 (4) (839 SE2d 620) (2020) (citation
and punctuation omitted). An identification procedure is
impermissibly suggestive when “it leads the witness to the virtually
inevitable identification of the defendant as the perpetrator, and is
the equivalent of the authorities telling the witness, ‘This is our
13
suspect.’” Id. (citation and punctuation omitted). “We review a trial
court’s determination that a lineup was not impermissibly
suggestive for an abuse of discretion.” Id.In arguing that the lineup was impermissibly suggestive,
Harris first notes that he was the only person in the lineup whom
Fletcher had seen previously. But Fletcher testified at the hearing
that she had stopped watching news about the shooting and did not
recall identifying anyone in the Polo outlet surveillance video that
she was shown.6 Cf. Kirkland v. State, 310 Ga. 738, 742-743 (2) (c)
(854 SE2d 508) (2021) (rejecting argument based on the witness’s
having been shown a photograph of the defendant by a neighborhood
friend prior to his police interview because this had no bearing on
whether the police’s conduct was unduly suggestive and the witness
testified that he could not remember whose picture the friend had
shown him).
Harris next argues that the lineup procedure was
6Fletcher testified at trial that the recording that she was shown out of
court was too blurry for her to recognize anyone.
14
impermissibly suggestive because the officer who conducted the
lineup knew that Harris was the suspect. Citing a psychology
journal article, Harris argues that this was particularly problematic
because the officer did not “take precautions” to ensure that he did
not provide “conscious or unconscious cues” that Harris was the
suspect. But Harris does not specify what the officer should have
done differently, except to the extent that he argues that a photo
lineup must be presented by someone who does not know the
suspect’s identity. “There is no authority supporting [such an]
argument. To the contrary, statutory law contemplates photo
lineups being administered by police officers who know the identity
of a suspect.” Kirkland, 310 Ga. at 741 (2) (a).7 The evidence
7 Kirkland cites OCGA § 17-20-2 (b) (2) (B) for this proposition. This
statute says that law enforcement agency lineup policies should provide that
where the officer conducting the lineup knows the identity of the suspect,
photographs should be “placed in folders, randomly shuffled, and then
presented to the witness so that the individual conducting such procedure
cannot physically see which photograph is being viewed by the witness until
the procedure is complete[.]” Harris does not specifically allege a violation of
this statute, and the investigator testified at the hearing that after he gave
Fletcher various admonishments, he “just handed her the lineup and let her
look at it.” In any case, any violation of the statute does not automatically
require exclusion; rather, it is just one factor a court may consider when an
15
supports the trial court’s implicit conclusion that the lineup was not
impermissibly suggestive. See Westbrook, 308 Ga. at 99 (4) (evidence
supported the trial court’s conclusion that photographic lineup was
not impermissibly suggestive where lineup consisted of photographs
of six men of the same race and with similar hairstyles and short
facial hair, investigators superimposed marks similar to defendant’s
tattoos on each of the photos, and investigator gave witness various
standard admonitions); Bowen v. State, 299 Ga. 875, 879 (4) (792
SE2d 691) (2016) (holding that photographic lineup was not
impermissibly suggestive where lineup consisted of photographs of
six men of the same race and similar hairstyles, and witnesses were
read the standard admonition and not threatened or told which
picture to choose).
Harris also argues that Fletcher’s pretrial identification of him
should have been excluded because there is a substantial likelihood
of misidentification for other reasons, such as the stressful nature of
identification is challenged. See Kirkland, 310 Ga. at 741-742 (2) (a) (citing
OCGA § 17-20-3).
16
Fletcher’s interaction with the gunman and her inconsistent
descriptions of him. 8 But “where the identification procedure is not
unduly suggestive, it is not necessary to consider whether there was
a substantial likelihood of irreparable misidentification.” Westbrook,
308 Ga. at 99 (4) (citation and punctuation omitted). We see no abuse
of discretion in the trial court’s admission of Fletcher’s pretrial
identification of Harris. And because Harris’s argument that
Fletcher’s in-court identification was improper depends on his claim
that her pretrial identification was fatally flawed, it fails as well.
3. Harris next argues that the trial court erred by admitting
certain other-acts evidence. We conclude that the trial court did not
abuse its discretion.
The other acts involved robberies of two different convenience
stores in Dougherty County (for which Harris had been convicted in
8 Fletcher gave a general description of the gunman to a 911 operator,
describing the person as a black male and giving varying possible heights for
the gunman — 6’4”, 6’5”, 6’8”, and 6’9”. She later estimated his height at 5’6”,
5’8”, or 5’9”, said he weighed about 165 pounds, and said that she could not
remember any particular facial feature, such as facial hair, of the gunman. Jail
records show Harris’s height as 5’9” and his weight as 185 pounds.
17
a 2011 trial) and a robbery of a convenience store in Lee County (for
which Harris previously had entered a guilty plea). Harris objected
to the admission of the evidence on the grounds that it was not
admissible for a proper purpose and any legitimate probative value
was outweighed by its prejudice. In a pretrial order, the trial court
ruled that the other-acts evidence was admissible under OCGA § 24-
4-404 (b) (“Rule 404 (b)”) to show motive, opportunity, plan,
knowledge, and intent. At trial, the State presented witness
testimony regarding the Lee County robbery and one of the
Dougherty County robberies. The State was permitted to read the
prior testimony of a witness to the other Dougherty County robbery.
It also introduced certified copies of Harris’s convictions stemming
from the three robberies, all of which took place on February 26,
2009. The trial court gave limiting instructions to the jury both when
the other-acts evidence was introduced and in its final charge.
We review the trial court’s decision to admit evidence pursuant
to Rule 404 (b) for abuse of discretion. See Jackson v. State, 306 Ga.
69, 76 (2) (b) (829 SE2d 142) (2019). Other-acts evidence is not
18
admissible “to prove the character of a person in order to show action
in conformity therewith.” OCGA § 24-4-404 (b). Nevertheless, such
evidence is admissible for other purposes, including “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. A party offering evidence
pursuant to Rule 404 (b) must demonstrate that: (1) it is relevant to
an issue in the case other than the defendant’s character; (2) its
probative value is not substantially outweighed by the danger of
unfair prejudice it poses; and (3) sufficient proof exists for a jury to
find by a preponderance of the evidence that the defendant
committed the other act. See Kirby v. State, 304 Ga. 472, 479 (4) (819
SE2d 468) (2018).
On appeal, Harris addresses only the first prong of that test,
arguing that the other-acts evidence was not relevant for a proper
purpose. We disagree. “Because [Harris] entered a plea of not guilty,
[he] made intent a material issue, and the State may prove intent
by qualifying Rule 404 (b) evidence absent affirmative steps by the
defendant to remove intent as an issue.” Hood v. State, 309 Ga. 493,
19
499-500 (2) (847 SE2d 172) (2020). Harris has pointed to no step he
took to remove intent as an issue. Several charged offenses in this
case — felony murder predicated on armed robbery, armed robbery,
and aggravated assault with intent to rob — required the State to
prove that Harris had the intent to rob. See Johnson v. Williams,
304 Ga. 771, 773 (822 SE2d 264) (2018) (armed robbery and
aggravated assault with intent to rob both require proof of intent to
rob). Each of the three other acts resulted in an armed robbery
conviction which, again, required proof of intent to rob. Therefore,
the other-acts evidence was relevant to intent, which is a proper
purpose.
Harris does not challenge the admission of the other-acts
evidence on any other basis, including whether its probative value
(which may have been limited, given ample other evidence of intent)
was outweighed by the danger of unfair prejudice. Accordingly,
Harris has not shown that the trial court abused its direction in
determining that the evidence was admissible under Rule 404 (b).
And although the other-acts evidence was also admitted for
20
purposes other than intent, Harris disputes only the admission of
the evidence; he makes no claim that, notwithstanding its admission
for intent, he was harmed by the trial court’s instruction that the
evidence could also be used for other purposes. This claim fails.
4. Harris argues that the trial court erred in admitting two
instances of hearsay, one of them part of the other-acts evidence: (1)
the State’s reading of testimony from his prior armed robbery trial,
and (2) Phelps’s statements to Garrett.9 We conclude that any error
in this regard was harmless.
(a) At the trial in this case, the State presented to the court
testimony regarding its unsuccessful efforts to locate a witness,
Angela Hunter, who had testified in Harris’s prior trial for the
February 2009 robberies in Dougherty County. Over a defense
objection, the trial court admitted Hunter’s prior testimony under
OCGA § 24-8-804 (b) (1), and the State was permitted to read that
prior testimony to the jury, including objections and cross-
9 Harris makes reference to “the confrontation clause” in his
enumerations of error but makes no actual argument apart from Georgia’s
Evidence Code.
21
examination.
OCGA § 24-8-804 (b) (1) provides that “[t]estimony given as a
witness at another hearing of the same or a different proceeding”
may be admissible “if the party against whom the testimony is now
offered . . . had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.” The parties
argue about whether Harris’s motive to develop Hunter’s testimony
was similar in the prior proceeding and his trial in this case, but
even if this issue was preserved,10 we need not resolve the parties’
dispute.
It is fundamental that harm as well as error must be
shown for reversal. The test for determining
nonconstitutional harmless error is whether it is highly
probable that the error did not contribute to the verdict.
In determining whether trial court error was harmless,
we review the record de novo, and we weigh the evidence
as we would expect reasonable jurors to have done so as
opposed to viewing it all in the light most favorable to the
jury’s verdict.
Henderson v. State, 310 Ga. 708, 713 (3) (854 SE2d 523) (2021)
10It is unclear whether the defense objected to this testimony on hearsay
grounds; the defense argued in objection to Hunter’s testimony that none of the
other-acts evidence should have been admitted.
22
(citations and punctuation omitted); see also OCGA § 24-1-103 (a)
(“Error shall not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected . . . .”). Any error in the admission of Hunter’s testimony
was harmless, as it is highly probable that it did not contribute to
the verdicts. The jury had already heard evidence of two other
similar robberies. The trial court had admitted certified copies of
Harris’s convictions stemming not only from those robberies, but
also the one that was the subject of Hunter’s testimony. Other
evidence against Harris included Fletcher’s pretrial and in-court
identifications of him as the gunman in the robbery in this case.
Little marginal harm arose from the admission of Hunter’s prior
testimony, and any error therein does not provide a basis for
reversal. See Kirby, 304 Ga. at 487 (4) (c) (concluding that improper
admission of prior violent act was harmless where other Rule 404
(b) evidence of violent crimes was admitted along with compelling
evidence of defendant’s guilt).
(b) Harris also argues that the trial court erred in admitting
23
Garrett’s testimony as to Phelps’s statement to him about the
suspicious man who had come into the store the morning of the
shooting. Again, we conclude that any error in this regard was
harmless.
Garrett testified to Phelps’s statement over a hearsay and
Confrontation Clause objection by Harris. The trial court ruled that
the testimony was admissible under the present sense impression
exception to the hearsay rule. See OCGA § 24-8-803 (1). Harris
argues that the State did not provide a sufficient foundation that
Phelps’s statements to Garrett about a suspicious individual were
sufficiently contemporaneous with that encounter to overcome his
hearsay objection. The State responds that the evidence was
admissible as a present sense impression or, alternatively, as an
excited utterance excluded from the hearsay rule under OCGA § 24-
8-803 (2).
We need not resolve that issue, as it is highly probable that
Garrett’s testimony about what Phelps said to him did not
contribute to the verdict. Garrett testified that Phelps’s statement
24
described the suspicious man merely as “a black male” with “a hood
on”; this did not implicate Harris in any particular way. The jury
also heard both of Phelps’s recorded statements to an investigator
in which Phelps described in greater detail the suspicious individual
who later returned and shot him, and Harris does not challenge the
admission of those statements in this appeal. Any error in the
admission of Phelps’s statement to Garrett is not a reason to
reverse.11
5. Harris argues that he was denied due process under
Brady because the State somehow thwarted his access to a plea
allocution by co-defendant Carter. We disagree.
At a pretrial hearing, Carter’s attorney testified that she
recalled that Carter had pleaded guilty to charges related to Phelps’s
death in November 2012. There also was some indication — in the
11Harris does not explicitly argue that his convictions should be reversed
due to any cumulative prejudice of multiple trial court errors. See State v.
Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[E]ven in the evidentiary
context, a defendant who wishes to take advantage of the [cumulative-error]
rule that we adopt today should explain to the reviewing court just how he was
prejudiced by the cumulative effect of multiple errors.”). We nonetheless have
considered the cumulative effect of the admission of Hunter’s prior testimony
and Phelps’s statement to Garrett and see no reason to reverse.
25
form of a news media article attached as an exhibit to a defense
motion — that a prosecutor referenced a guilty plea by Carter in a
news media interview in January 2013. But apparently, no
transcript of any November 2012 guilty plea by Carter could be
located by the parties or the court. 12 In June 2014, Harris filed a
motion to exclude Carter’s testimony, arguing that the State’s
failure to notify Harris of the terms of Carter’s negotiations and to
preserve transcripts and other court documents relating to Carter’s
2012 plea and allocution amounted to a Brady violation. The trial
court denied the motion, deeming it “unlikely” that the plea hearing
had taken place, given the lack of documentation of such a hearing.
The court also concluded that any failure to ensure that documents
were properly maintained and preserved was not the prosecutor’s
fault, but that of the judge, court staff, or the court reporter.
Under Brady and Giglio v. United States, 405 U.S. 150 (92 SCt
763, 31 LE2d 104) (1972), “the State violates due process when it
12 Regardless of whether Carter had entered such a plea in November
2012, it is clear that he did so in the same case on May 5, 2014.
26
suppresses evidence that materially undermines witness
credibility.” Thomas v. State, 311 Ga. 706, 711 (1) (a) (859 SE2d 14)
(2021) (citation and punctuation omitted). To prevail on such a
claim, a defendant must show that
(1) the State possessed evidence favorable to his defense;
(2) he did not possess the favorable evidence and could not
obtain it himself with any reasonable diligence; (3) the
State suppressed the favorable evidence; and (4) had the
evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the trial would have
been different.
Id. at 711-712 (1) (a) (citation and punctuation omitted). The burden
of proof on these elements lies with the defendant. See State v. Hill,
295 Ga. 716, 720 (763 SE2d 675) (2014). We review a trial court’s
factual findings regarding a Brady claim for clear error but review
the court’s application of the law to the facts de novo. See State v.
Thomas, 311 Ga. 407, 414 (3) (a) (858 SE2d 52) (2021).
Here, Harris has failed to show that the State possessed
evidence favorable to the defense, let alone that the State
suppressed such evidence. The trial court deemed it unlikely that
Carter made a plea allocution in November 2012. We cannot
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conclude on this record that this finding was clearly erroneous. The
State could not possess, let alone suppress, records that do not exist.
See Brannon v. State, 298 Ga. 601, 605 (3) (a) (783 SE2d 642) (2016)
(“Although appellant disputes the trial court’s finding that the type
of notes he sought to compel did not exist, mere speculation is
insufficient to substantiate appellant’s claim that the State withheld
exculpatory evidence which prejudiced his defense.”). And the trial
court at least implicitly found that in the unlikely event that the
plea hearing did take place, the records were lost by court staff.
“Brady requires information to be revealed only when it is possessed
by the prosecutor or anyone over whom the prosecutor has
authority.” Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994)
(citation and punctuation omitted). Harris failed to show a Brady
violation with respect to any records of a November 2012 allocution
by Carter.
6. Finally, Harris argues that the trial court erred in
allowing the State to present other-acts evidence regarding the
subject of his prior armed robbery trial despite the State’s failure to
28
comply with Georgia’s reciprocal discovery statute, OCGA § 17-16-1
et seq.13 We conclude that Harris waived any such argument and see
no error.
In the weeks prior to trial, the defense apparently experienced
some difficulty in obtaining certain evidence concerning Harris’s
2011 Dougherty County armed robbery trial from the clerk’s office.
Harris filed a motion asking the trial court to (1) compel the clerk to
release the evidence per a prior court order and (2) suppress any
evidence from the prior trial based on the State’s bad faith either in
failing to provide requested documents or hindering the defense’s
attempts to obtain documents from the clerk. 14 At a hearing on the
Friday before the Monday start of trial, Harris claimed that he had
not received two digital or photographic exhibits and was unable to
play two videos that he had received. The trial court denied the
13 To the extent that Harris also purports to enumerate as error a Brady
violation with respect to records from his prior trial, he has abandoned such a
claim by failing to make any argument in support of it on appeal. See Supreme
Court Rule 22 (“Any enumerated error not supported by argument or citation
of authority in the brief shall be deemed abandoned.”).
14 The motion cited OCGA § 17-16-6, but not Brady.
29
request to suppress the evidence, saying that the State had not
encouraged the clerk to disobey the court’s prior order. The court
also indicated that it would direct the clerk to produce any
outstanding evidence immediately and invited the defense to
request a continuance. The State noted that the two videos the
defense claimed it had been unable to play had been played in court,
and the trial court indicated that it would facilitate the defense’s
further review of those videos. At the close of the hearing, Harris’s
counsel indicated that she wanted an opportunity to review the
evidence before it was presented at trial; the trial court responded,
“Absolutely”; and Harris’s counsel told the court, “We can forge
ahead[.]” Before the State began its presentation of the prior
testimony of Hunter, the missing witness to one of the 2009
Dougherty County robberies, Harris noted that he previously had
objected on the ground that he had not received the transcript of
that testimony in a timely fashion in compliance with the reciprocal
discovery statute; the court said the objection was “noted.”
OCGA § 17-16-4 (a) (3) (A) generally provides that the
30
prosecuting attorney must permit the defendant to inspect and copy
those materials that the prosecutor intends to use at trial and that
“are within the possession, custody, or control of the state or
prosecution,” and must do so no later than ten days before trial or
as otherwise ordered by the court. OCGA § 17-16-6 provides that if
the 10-day deadline is not met, the trial court can elect various
remedies short of exclusion, including granting a continuance. “The
State may be prohibited from introducing evidence that was not
timely disclosed only upon a showing of both prejudice to the
defendant and bad faith by the State.” Carson v. State, 308 Ga. 761,
768 (5) (843 SE2d 421) (2020) (citation and punctuation omitted).
We review for clear error the trial court’s factual findings as to bad
faith and prejudice. See State v. Bryant, 307 Ga. 850, 853 (1) (838
SE2d 855) (2020).
Harris complains that the State’s “interference” with his
attempts to access evidence from the prior trial “put [him] at a
disadvantage in [his] preparation in this trial.” But the trial court
specifically found that the State did not encourage the clerk to
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disobey the court’s order that Harris be provided access to the
relevant material, and he cannot show that the trial court’s finding
of a lack of bad faith in this respect was clearly erroneous. Moreover,
the trial court invited Harris to move for a continuance based on his
objections, but he declined to do so, saying instead that the trial
could “forge ahead.” He therefore has waived any objection to
admission of the other-acts evidence based on any violation of the
reciprocal discovery statute. See Valentine v. State, 293 Ga. 533, 536
(2) (748 SE2d 437) (2013) (“By failing to ask for more time to prepare
for the testimony of the expert witness, [the appellant] waived any
claim of error with respect to the failure of the trial court to give his
lawyer more time.”).
Judgment affirmed. All the Justices concur.
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