Jenkins v. State ( 2022 )

In the Supreme Court of Georgia
Decided: January 19, 2022
S21A1127. JENKINS v. THE STATE.
LAGRUA, Justice.
Appellant Devon Jenkins was convicted of felony murder and
other crimes in connection with an August 6, 2014 home invasion in
Gwinnett County in which the victim, Adam Schrier, was shot and
killed and two other victims, including a child, were injured. On
appeal, Appellant contends that the evidence was legally
insufficient to support his conviction for possession of a firearm by a
convicted felon, that the trial court erred in admitting other-act
evidence prohibited by OCGA § 24-4-404 (b), and that his trial
counsel rendered ineffective assistance by failing to request a
limiting instruction on the other-act evidence.1 For the reasons that
1 In November 2014, Appellant was indicted by a Gwinnett County grand
jury, together with four other indictees – Brian Brewer, James Stokes,
Jonathan Pichardo, and Pierre Scott – on charges of malice murder, felony
follow, we affirm Appellant’s convictions.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed that during the early
morning hours of August 6, 2014, several intruders forcibly entered
Schrier’s home in Duluth. Schrier shared the home with his four-
year-old daughter, E.S., his girlfriend, Jami Smith, and Smith’s
eight-year-old daughter, M.S. That morning, Smith woke up at 5:30
a.m. and was smoking a cigarette in the basement-level garage when
she heard banging noises above her from the main floor of the house.
Smith stepped inside the house and yelled for Schrier. She started
to walk up the stairs leading from the basement to the main floor
murder, aggravated assault, first-degree burglary, first-degree home invasion,
conspiracy to commit robbery, armed robbery, false imprisonment, first-degree
cruelty to children, and possession of a firearm by a convicted felon. Appellant
was re-indicted for the same offenses in August 2015. In February 2016,
Appellant was tried jointly with Stokes and Scott. Appellant was convicted of
all counts except malice murder. The trial court sentenced Appellant to life in
prison without the possibility of parole, plus a total of 50 consecutive years to
serve. Appellant filed a timely motion for new trial on March 1, 2016, which
he amended through new counsel on July 2, 2018, and again on May 19, 2019.
On February 5, 2020, the trial court held an evidentiary hearing on the motion
for new trial, and on March 3, 2020, the trial court denied Appellant’s motion
for new trial. Appellant filed a timely notice of appeal to this Court on March
10, 2020. The case was docketed to this Court’s term beginning in August 2021
and orally argued on November 9, 2021.
2
when she heard Schrier cry out, followed by booming sounds. Smith
called for Schrier again, and then a man – whom Smith identified at
trial as Appellant – appeared in the doorway at the top of the
basement stairs, pointing a gun at her. Appellant charged at Smith
and hit her in the head multiple times with the butt of his gun,
asking, “Where’s the f***ing money at?” When Smith responded
that she did not know what he was talking about, Appellant shot her
in the left leg and dragged her up the stairs, continuing to ask where
the money was.
When they reached the main floor, Smith saw another man
pulling M.S. downstairs from the second floor of the house where the
bedrooms were located.2 The men forced Smith and M.S. into the
living room where Schrier, who had been shot in the chest, was lying
on his back on the floor. Appellant directed Smith and M.S. to lie
down on their stomachs on the floor next to Schrier and demanded
2 According to M.S., she had been asleep in her bed when she heard a
loud yell and glass breaking. M.S. opened her door and saw two men whom
she did not recognize staring at her. She quickly closed the door and tried to
press against it, but the men pushed the door open and dragged her downstairs
to the main level.
3
that Smith give the men $40,000 they had been told was in the
home. Smith again said she did not know anything about the
money, but said she had $60 in her purse upstairs, which the men
took.
The men bound Smith’s and M.S.’s arms and legs with duct
tape. As the men were doing so, M.S. knocked the tape away, and
Appellant started shooting at Smith and M.S. Smith tried to cover
M.S. to protect her, and a bullet grazed Smith’s shoulder and
entered M.S.’s arm. The men finished binding Smith’s and M.S.’s
arms and legs and left the house. Smith could not stand because of
the gunshot wound to her leg, but she was able to free M.S.’s legs
from the duct tape. M.S. then retrieved Smith’s cell phone from
upstairs, and Smith called 911. Police officers and paramedics soon
responded, and Smith and M.S. were transported to a hospital and
treated for their injuries. Schrier died at the scene from a gunshot
wound to the chest.
Following the home invasion, neighbors of Schrier reported
seeing a light-colored or white Dodge pickup truck parked outside
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Schrier’s home with the engine running and the lights off. One of
the neighbors, who was suspicious, wrote down the Tennessee tag
number of the truck and later reported it to police.
The home invasion was the result of a series of drug-related
incidents that occurred in July and August 2014. In mid-July, law
enforcement officers conducted a drug raid at the Gwinnett County
apartment of Becky Banner, a woman who was trafficking
methamphetamine supplied by a drug cartel. During the drug raid,
Becky’s son, Bryan Banner, who also trafficked methamphetamine,
drove to his mother’s residence. When Bryan arrived, he saw a K-9
unit at the door to his mother’s apartment and realized what was
happening. He immediately drove to Becky’s other residence in
Gwinnett County and retrieved five kilograms (11 pounds) of
methamphetamine that Becky was storing in a Chevrolet Blazer
parked outside the second residence. After retrieving the drugs,
Bryan asked Schrier – a close friend – to hide the drugs for him.
Schrier agreed and stored the drugs in a storage unit near his home.
Over the next week, Bryan sold most of the methamphetamine
5
Schrier was storing for him. One of the individuals who purchased
the drugs was Jamie Staples, Becky’s then-boyfriend and a minor
drug dealer connected to the trafficking operation. Staples knew
Bryan had taken all of the drugs hidden in the Blazer, but he
mistakenly believed that Bryan was storing the remainder of the
drugs and all the money from the drug sales inside Schrier’s home.
The week before the August 6 home invasion, Staples met with
Brian Brewner, one of Appellant’s co-indictees who was also a drug
dealer, to discuss stealing the rest of the methamphetamine and any
money generated from the drug sales from inside Schrier’s home.
Brewner then approached Appellant and Pierre Scott, one of
Appellant’s co-defendants, to solicit their help in stealing the money
and drugs from Schrier’s home.
On the night of the home invasion, Brewner met with
Appellant and Scott at a La Quinta hotel in Gwinnett County where
Brewner was staying with his girlfriend, Charlice Roberts.
Appellant was also staying at this hotel with his girlfriend, Summer
Lawrence. During this meeting, the men finalized the plot to invade
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Schrier’s home to steal the drugs and money. After the meeting,
Roberts noted that Appellant was carrying a gun and was visibly
excited about getting some money.
Around 1:00 or 2:00 a.m. on August 6, Appellant left the hotel
room he was sharing with Lawrence, and Lawrence saw him get into
a white pickup truck with Scott and his other co-defendant, Jamie
Stokes. Appellant was carrying a large black duffel bag. After
sunrise that morning, Appellant returned to the hotel and went to
sleep without speaking to Lawrence. The next day, after moving to
another hotel, Appellant told Lawrence that the night they left, he
shot a man after they tried to rob him and “the man tried to fight
him.” He also said that “he didn’t shoot the girl, and he didn’t shoot
the older kid.” Appellant insisted he did not want Lawrence “to get
caught up in it,” and he wanted to go to Chicago.
On the night after the home invasion, Bryan Banner contacted
the police and told them he had information on the “possible home
invasion/homicide” at Schrier’s home. Bryan implicated Jamie
Staples in these crimes, suggesting that the motive was to steal
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methamphetamine and money generated from the sale of
methamphetamine Schrier had been storing at or near his home.
On August 15, investigators with the Gwinnett County District
Attorney’s Office learned that the white Dodge pickup truck seen
parked outside Schrier’s home near the time of the home invasion
had been rented from a Chattanooga, Tennessee rental car company
in July by a woman named Shana Woods. When investigators
interviewed Woods, she informed them that she had rented the
Dodge Ram for Brian Brewner to use.3 Investigators also discovered
that, on the afternoon of August 6, the pickup truck had been parked
at the Congress hotel – a hotel adjacent to the La Quinta hotel in
Gwinnett County where Appellant and Brewner were staying the
night before the home invasion. Surveillance video from the
Congress hotel also showed that on the morning of August 6, a white
Dodge pickup truck, followed by a white Toyota Camry with tinted
3 At trial, Lawrence testified that the white pickup truck she saw at the
La Quinta hotel on August 6 belonged to Brewner, and she described it as “the
way everybody was getting around, I guess helping each other out.” A cigarette
butt discovered by police on the floorboard of the pickup truck later tested
positive for Appellant’s DNA.
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windows, pulled into the hotel parking lot at 6:35 a.m. Shortly after
pulling into the parking lot, three men exited the pickup truck and
got into the Camry, which then drove away. At that time, Brewner’s
girlfriend, Roberts, owned a white Toyota Camry with tinted
windows.
On August 21, Staples was arrested on unrelated drug charges.
Staples implicated Brewner in the home invasion and told the police
where they could find Brewner. Later that night, police officers
located Brewner and Roberts in the parking lot of a hotel in DeKalb
County. As the police officers approached, Brewner fled the area in
a white SUV, but Roberts remained and was brought in for
questioning. During Roberts’s interview, she told the police officers
that Brewner and Appellant were involved in the home invasion.
Warrants were then issued for Appellant’s and Brewner’s arrest.
Police officers also released information about the arrest warrants
to the media, which increased media coverage and publicity about
the home invasion.
On the night of August 27, Sneh Sean Savice, an acquaintance
9
of Appellant who regularly purchased marijuana from him, picked
up Appellant in Atlanta to give him a ride to Lawrenceville. When
Appellant first got into Savice’s car, Savice heard Appellant do a
Google voice search for a Duluth homicide or home invasion. While
they were traveling, the men encountered a roadblock with a
number of police cars, and Appellant told Savice to turn around.
Savice made a U-turn in the middle of the street, at which point the
police officers started pursuing his car. Savice was initially driving
the speed limit, but Appellant pulled a gun and pointed it at Savice,
instructing him to get away from the police officers. Savice sped up,
and Appellant directed him into a residential area. The men soon
realized the police officers were no longer behind them, and Savice
stopped the car. Appellant jumped out of the car and ran.
Shortly after this incident, Kristian Dunning, a friend of
Appellant’s with whom Lawrence used to reside, spoke to Appellant
on the phone. During this conversation, Appellant told Dunning
“everything” about “the crime he had done” and asked her to do a
search on her phone for his name and “Fox 5” because he “knew he
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was wanted.” Dunning testified that she did the search as
requested, and when she did so, news about the home invasion
appeared, including information that “the wife was shot, and the
daughter was shot, and the husband was actually killed,” that three
suspects had been found, and that the police were looking for
“someone else.” Dunning asked Appellant what happened, and he
said that “things just went – it didn’t go the way it was supposed to
go.” Appellant then admitted that he shot “the man” and that he
didn’t know who shot the wife or child, but that “[i]t happened so
fast.” Appellant also told Dunning about the roadblock and the
police chase in Savice’s car, explaining that he knew he was wanted
for the home invasion, so he pointed the gun at Savice and told him
to drive away from the roadblock. On August 28, Dunning contacted
the police and told them where they could find Appellant. Appellant
was arrested shortly thereafter.
During his incarceration prior to trial, Appellant confided in
his cellmate that he was involved in the “Duluth home invasion.”
Appellant said they were trying to steal drugs for a man who was
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involved with “the cartel,” that he got into a fight with the victim
during the home invasion, and that he participated in it because he
was “broke” and was just “looking to make some money” by “any
means necessary.”
2. Appellant first contends that the evidence presented at trial
was insufficient to support his conviction for possession of a firearm
by a convicted felon. We disagree.
Count 23 of the indictment charged Appellant with possession
of a firearm by a convicted felon, stating that
on the 6th day of August, 2014, [Appellant] did then and
there unlawfully possess a firearm after having been
convicted on the 1st day of December, 2010, in the
Superior Court of Gwinnett County, a court of competent
jurisdiction, of the offense of Theft by Receiving Stolen
Property, a felony under the laws of this State. . . .
At a pretrial hearing in November 2015, Appellant agreed to
stipulate to the 2010 theft-by-receiving felony conviction if the State
redacted this conviction from the firearm possession charge in the
indictment given to the jury. The parties so stipulated, and the
indictment was redacted to replace the name of the predicate felony
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with “felony offense under the laws of this State.”
At trial, the parties agreed to a written stipulation to be read
to the jury, and the trial court read the following stipulation and
instructions to the jury:
The parties have entered into a stipulation that has been
approved by the Court about the following facts: And that
is, that Devon Jenkins, James Stokes, and Pierre Scott
are all convicted felons. When a party stipulates facts,
this is in the nature of evidence. You may take that fact
or those facts as a given without the necessity of further
proof; however, you are not required to do so, and even
such matters may be contradicted by other evidence. You
make all the decisions, as the jury, based on the evidence
in this case.
After the close of evidence, the trial court instructed the jury as
follows:
You have received in evidence prior convictions of the
defendants and certain witnesses. You may consider this
evidence only insofar as it relates to attacking the
credibility of the witness and/or the required element of
conviction of a felony for the offense in Counts 23, 25, and
26 of the indictment, and not for any other purpose or
count.
The trial court then reminded the jury that the parties stipulated to
the fact that “each defendant is a convicted felon” and repeated the
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general instruction regarding stipulations given during trial.
On appeal, Appellant claims that, because the stipulation did
not specify that Appellant was a convicted felon on or before the
home invasion on August 6, 2014, it was insufficient as a matter of
law to establish that his felony conviction preceded the gun
possession – a necessary element of OCGA § 16-11-131.4 Appellant
claims that, because the stipulation was in the present tense, it
allowed for the reasonable hypothesis that Appellant was convicted
of a felony after August 6, 2014, and thus, reasonable doubt existed
as a matter of law as to whether he was a convicted felon on the date
of the crimes.
When evaluating challenges to the sufficiency of the evidence
as a matter of constitutional due process, “we view the evidence
presented at trial in the light most favorable to the verdicts and ask
whether any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt of the crimes of which he was
4OCGA § 16-11-131 (b) provides in pertinent part that “[a]ny person . . .
who has been convicted of a felony by a court of this state . . . and who receives,
possesses, or transports any firearm commits a felony.”
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convicted.” Boyd v. State, 306 Ga. 204, 207 (1) (830 SE2d 160) (2019)
(citing Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d
560) (1979), and Jones v. State, 304 Ga. 594, 598 (820 SE2d 696)
(2018)). “A criminal defendant may expressly authorize factual
stipulations that will obviate the need for proof.” Thompson v. State,
277 Ga. 102, 103-104 (2) (586 SE2d 231) (2003).
In this case, the trial court read the written stipulation to the
jury with no objection from either party, and though the stipulation
was worded in the present tense, the purpose of the stipulation was
clear – to eliminate “the necessity of further proof” of “the required
element of conviction of a felony” for the felon-in-possession counts,
as the jury was later instructed. No alternative hypothesis was
presented to the jury in the evidence, closing arguments, or jury
instructions to suggest that Appellant was not a convicted felon at
the time of the home invasion. Thus, the jury was authorized to
accept the stipulation, to infer that Appellant’s felony conviction
occurred before the events alleged in the indictment, and to find
Appellant guilty of possession of a firearm by a convicted felon. See
15
McKie v. State, 306 Ga. 111, 115-116 (829 SE2d 376) (2019) (“Where
the jury is authorized to find the evidence sufficient to exclude every
reasonable hypothesis save that of the accused’s guilt, this Court
will not disturb that finding unless it is insupportable as a matter of
law.”). We therefore conclude that the evidence was constitutionally
sufficient under Jackson v. Virginia for a jury to find Appellant
guilty beyond a reasonable doubt of possession of a firearm by a
convicted felon. See Jackson, 443 U. S. at 319.
3. Appellant next contends that the trial court erred by
admitting trial testimony from State witnesses regarding
Appellant’s actions shortly before and after he encountered the
police roadblock with Savice in late August 2014 because this
evidence was prohibited by OCGA § 24-4-404 (b) (“Rule 404 (b)”).5
Prior to trial, Appellant filed a motion in limine seeking to
exclude this testimony, arguing that the evidence was irrelevant,
was inadmissible as “just pure bad acts,” and did not go to
5 Under Rule 404 (b), “[e]vidence of other crimes, wrongs, or acts shall
not be admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes[.]”
16
“explaining flight or anything of that nature” because “it was well
after the home invasion.” The State contended that the testimony
was admissible as evidence of flight and to demonstrate that
Appellant was aware of his status as a suspect in the home invasion.
The trial court withheld ruling on Appellant’s motion in limine until
the testimony at issue was presented at trial.
During the trial, the court readdressed Appellant’s motion in
limine outside the presence of the jury, and Savice and Dunning
made a proffer of the contents of their potential testimony. The trial
court then heard arguments from both sides about whether the
testimony fell under the ambit of Rule 404 (b) and whether it should
have been included in a pre-trial notice to Appellant.6 The trial court
concluded that the evidence was admissible – implicitly concluding
it was intrinsic evidence – to demonstrate that Appellant fled from
6 Rule 404 (b) provides that “[t]he prosecution in a criminal proceeding
shall provide reasonable notice to the defense in advance of trial, unless
pretrial notice is excused by the court upon good cause shown, of the general
nature of any such evidence it intends to introduce at trial,” but that “[n]otice
shall not be required when the evidence of prior crimes, wrongs, or acts is
offered to prove the circumstances immediately surrounding the charged
crime, motive, or prior difficulties between the accused and the alleged victim.”
17
the police roadblock to avoid capture for the home invasion and was
not subject to Rule 404 (b).
On appeal, Appellant claims that this testimony should have
been excluded under Rule 404 (b) because it was impermissible
character evidence and was unrelated to the crimes for which he was
charged. Appellant further claims that the trial court failed to
conduct the proper balancing test under OCGA § 24-4-403 (“Rule
403”)7 or make any ruling as to the probative value of this evidence,
which Appellant asserts was “very low.” The State asserts that
while the trial court did not explicitly state that it conducted a Rule
403 balancing test, the trial court clearly determined that the
evidence was relevant to the case and probative of the possibility
that Appellant was fleeing from arrest, and thus the trial court did
not abuse its discretion in admitting the evidence of flight “without
subjecting it to analysis as other act evidence contemplated by [Rule
7 Under Rule 403, “[r]elevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.”
18
404 (b)].”
We agree and conclude that the evidence was properly
admitted as flight evidence, which is generally intrinsic and not
subject to Rule 404 (b). See Rawls v. State, 310 Ga. 209, 218-219 (4)
(a) (850 SE2d 90) (2020) (holding that “[e]vidence of flight may be
admissible as circumstantial evidence of guilt”). See also Williams
v. State, 302 Ga. 474, 485 (IV) (d) (807 SE2d 350) (2017) (“The
limitations and prohibition on ‘other acts’ evidence set out in [Rule
404 (b)] do not apply to intrinsic evidence.” (citations and
punctuation omitted)).
Evidence is admissible as intrinsic evidence when it is (1)
an uncharged offense arising from the same transaction
or series of transactions as the charged offense; (2)
necessary to complete the story of the crime; or (3)
inextricably intertwined with the evidence regarding the
charged offense.
Williams, 302 Ga. at 485 (IV) (d) (citations and punctuation
omitted). Evidence of flight is generally intrinsic, as “‘the fact of an
accused’s flight, escape from custody, resistance to arrest,
concealment, assumption of a false name, and related conduct, [is]
19
admissible as evidence of consciousness of guilt [for the charged
offense], and thus of guilt itself.’” State v. Orr, 305 Ga. 729, 741 (4)
(a) (827 SE2d 892) (2019) (quoting United States v. Borders, 693 F2d
1318, 1324-1325 (II) (11th Cir. 1982) (“Flight is viewed in the law of
evidence as admission by conduct which expresses consciousness of
guilt.”)). We acknowledge that interpretations of an “act of flight
should be made cautiously and with a sensitivity to the facts of the
particular case, including whether the defendant was aware that he
was under investigation or had other reasons to flee and the timing
of the flight.” Id. at 742 (4) (b) (citation and punctuation omitted)).
And, we note that flight evidence may be inadmissible where “there
exists a significant time delay from the commission of the crime, or
the point at which the suspect becomes aware that he is the subject
of a criminal investigation, to the time of flight.” Borders, 693 F2d
at 1326 (II). However, no such impediments exist in this case.
Although Appellant’s act of fleeing from the police roadblock
occurred three weeks after the home invasion, the record shows that
the home invasion had become highly publicized at that point, and
20
Savice testified that he heard Appellant search for information on
his cell phone about a Duluth homicide/home invasion shortly before
the men encountered the roadblock. Then, according to Savice,
when they saw the police, Appellant forced Savice at gunpoint to
evade them. The record further demonstrates that, at the time of
these events, Appellant knew he was wanted by the police for his
involvement in the home invasion – he told Dunning as much. See
id. (concluding that where “the instinctive or impulsive character of
the defendant’s behavior . . . indicates fear of apprehension,” it “gives
the evidence of flight such trustworthiness as it possesses”). Thus,
this evidence of Appellant’s flight from the roadblock to avoid being
apprehended for the home invasion was part of the same “chain of
events” and “inextricably intertwined” with the home invasion itself,
despite the approximately three-week interval between the two
incidents. Williams, 302 Ga. at 486 (IV) (d). See also Harris v. State,
310 Ga. 372, 381 (2) (b) (850 SE2d 77) (2020) (“[T]here is no bright-
line rule regarding how close in time evidence must be to the
charged offenses, or requiring evidence to pertain directly to the
21
victims of the charged offenses, for that evidence to be admitted
properly as intrinsic evidence.”).
With these considerations in mind, we conclude that the
testimony from Savice and Dunning was properly admitted as
intrinsic evidence of flight. And, although Rule 403 grants a trial
court discretion to exclude relevant evidence “if its probative value
is substantially outweighed” by its prejudicial effect, this Court has
repeatedly explained that “exclusion of evidence under Rule 403 is
an extraordinary remedy that should be used only sparingly,” and
the party seeking to exclude the evidence must show that the
probative value of the relevant evidence is “substantially
outweighed by the danger of prejudice.” Orr, 305 Ga. at 742 (4) (b)
(citation and punctuation omitted). Appellant did not meet that
burden here.
Generally speaking, the greater the tendency to make the
existence of a fact more or less probable, the greater the
probative value. And the extent to which evidence tends
to make the existence of a fact more or less probable
depends significantly on the quality of the evidence and
the strength of its logical connection to the fact for which
it is offered.
22
Olds v. State, 299 Ga. 65, 75 (2) (786 SE2d 633) (2016) (citation
omitted). In this case, any prejudicial impact from the flight
evidence presented was outweighed by its probative value, as the
evidence showed that Appellant had a guilty conscience for his
participation in the home invasion and wanted to avoid being
apprehended.
Therefore, the trial court did not abuse its discretion in
admitting evidence that Appellant fled the roadblock, as it was not
inadmissible under Rule 403. See Harris, 310 Ga. at 377 (2) (b)
(holding that the trial court did not abuse its discretion in admitting
the State’s evidence as intrinsic evidence). And, even if the trial
court had erred in admitting this evidence, any such error was
harmless given the weight of the other evidence admitted against
Appellant at trial, including statements from his co-indictees,
Appellant’s confessions to his cell-mate and other acquaintances, an
in-court identification by one of the victims of Appellant as the
perpetrator, and Appellant’s DNA evidence from a cigarette found
23
inside the white Dodge Ram used in the home invasion. See Fitts v.
State, 312 Ga. 134, 138 (1) (859 SE2d 79) (2021) (“The test for
determining nonconstitutional harmless error is whether it is highly
probable that the error did not contribute to the verdict,” and
“[w]hen applying a harmless-error analysis, we review the evidence
de novo and weigh it as a reasonable juror would rather than in a
light most favorable to upholding the jury’s guilty verdict.”) (citation
and punctuation omitted).
4. Appellant’s final contention is that his trial counsel was
ineffective for failing to request a jury instruction indicating that the
roadblock evidence was being admitted for the limited purpose of
proving flight. We disagree.
In order to prevail on a claim of ineffective assistance of
counsel, Appellant must show “both that counsel’s performance was
deficient, and that the deficient performance was prejudicial to his
defense.” Lockhart v. State, 298 Ga. 384, 385 (2) (782 SE2d 245)
(2016). See also Strickland v. Washington, 466 U. S. 668, 687 (III)
(104 SCt 2052, 80 LE2d 674) (1984). Here, in denying Appellant’s
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motion for new trial, the trial court ruled that the roadblock
evidence was not subject to Rule 404 (b) and that the court had
properly charged the jury as to all issues in the case, including
giving a charge on direct and circumstantial evidence.
Accordingly, because the evidence at issue was properly
admitted as intrinsic evidence of flight, which is not subject to Rule
404 (b), and because we see no other basis for giving a limiting
instruction in this case, Appellant “fails to show that a request for a
limiting instruction would have been granted, and thus fails to
establish ineffective assistance of counsel on this basis.” Adams v.
State, 283 Ga. 298, 300 (3) (b) (658 SE2d 627) (2008). Therefore, we
conclude that Appellant failed to show deficient performance under
Strickland, and his ineffective assistance of counsel claim fails.
Judgment affirmed. All the Justices concur.
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