Ellington 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: August 9, 2022
S22A0477. ELLINGTON v. THE STATE.
WARREN, Justice.
Vincent Ellington was tried by a Fulton County jury and
convicted of malice murder and other crimes in connection with the
shooting death of Jeremy Kanard Fulton. 1 Ellington raises two
1 Fulton was killed on May 6, 2016. On September 30, 2016, a Fulton
County grand jury indicted Ellington on ten counts: malice murder, three
counts of felony murder, aggravated assault with a firearm, aggravated assault
with a motor vehicle, cruelty to children in the third degree, possession of a
firearm during the commission of a felony under OCGA § 16-11-106, possession
of a firearm by a convicted felon under OCGA § 16-11-131, and possession of a
firearm by a convicted felon during the commission of a felony under OCGA
§ 16-11-133. After a jury trial from December 11 to 18, 2017, the jury found
Ellington guilty on all counts except aggravated assault with a motor vehicle,
for which the trial court entered an order of nolle prosequi. On December 18,
2017, Ellington was sentenced to life in prison without the possibility of parole
for malice murder, 12 months to be served concurrently for third-degree child
cruelty, 5 years to be served consecutively for possession of a firearm during
the commission of a felony, and 15 years to be served consecutively for
possession of a firearm by a convicted felon during the commission of a felony;
the aggravated assault with a firearm count and the possession of a firearm by
a convicted felon count were merged for sentencing purposes, and the felony
murder counts were vacated by operation of law. As discussed in Division 4
claims of error on appeal: (1) the evidence presented at trial was
insufficient to support his convictions; and (2) the trial court erred
when it limited his cross-examination of one of the State’s witnesses.
As noted in footnote 1 and in Division 4, we have identified a merger
error that requires us to vacate in part and remand for resentencing.
Otherwise, as explained more below, we affirm Ellington’s
convictions.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. On the evening of
May 6, 2016, a large group of people was hanging out at an Atlanta
shopping center. The shopping center included a barbershop, a
Family Dollar, a pool hall, and a café. Witnesses described the
gathering as a party atmosphere with somewhere between 65 to 150
below, the possession of a firearm during the commission of a felony count,
OCGA § 16-11-106, should have merged with the conviction for possession of a
firearm by a convicted felon during the commission of a felony, OCGA § 16-11-
133, and the trial court erred in sentencing Ellington on the former. Ellington
timely filed a motion for new trial on December 20, 2017, which he twice
amended through new counsel. On September 27, 2021, following a hearing,
the trial court denied Ellington’s motion for new trial, as amended. Ellington
timely filed a notice of appeal on October 13, 2021. The case was docketed in
this Court to the April 2022 term and submitted for decision on the briefs.
2
or more people in attendance, playing music, drinking, and selling
clothes, among other things.
According to Ellington’s girlfriend, Nicole Durden, Ellington
borrowed her burgundy Chevrolet Impala that night and drove
Durden’s two-year-old son, Meshiah, to the shopping center. Other
witnesses who were at the shopping center testified that Ellington
was also accompanied by an acquaintance who was wearing a straw
hat. Ellington and the man with the straw hat went inside the
barbershop to sell clothes and other merchandise. Multiple
witnesses testified that Ellington was wearing an orange shirt and
had a baby with him. 2
When Fulton tried to purchase clothes from the man in the
straw hat, the two men started arguing over the price. One witness
testified that she saw a “dude” wearing an “orange sweater” with a
baby in the barbershop with another “guy selling clothes” in a straw
2 Two of those witnesses identified Ellington during the police
investigation in photographic lineups, and again at trial, as the man they saw
wearing an orange shirt and selling clothes inside the barbershop while
holding a baby.
3
hat. She saw the man in the straw hat arguing with Fulton, and
during that argument, the man wearing orange left the barbershop
carrying the baby. Another witness, John Hill, testified that a man
was selling “merchandise” inside the barbershop with another man
who was holding a toddler. The man with the toddler exited the
barbershop, and the barbershop owner then asked the man selling
merchandise to leave. A few seconds later, the man who had been
holding the toddler returned inside the barbershop “to get his
companion and leave.” The two men then exited the barbershop.
Approximately 15 or 20 seconds later, Hill also left the
barbershop and went near his car in the parking lot to urinate. Hill
testified that “[s]hortly after” he went outside, he “heard a little
commotion” and “quarrelling.” Hill turned around and saw “two
guys at the back end of a car,” then he saw a raised arm and heard
three gunshots. Hill testified that he did not see the gun and that
he could not describe or identify the two men because it was dark
outside. But he heard a “bumping sound” that he assumed was the
car “rolling over” or “back[ing] into” the victim, later verified to be
4
Fulton, because “he fell right directly behind the car.” After Fulton
was shot, the shooter jumped into a car, which witnesses described
as “maroon or burgundy” or “red,” and drove away. Despite
witnesses’ attempts to help Fulton, he died at the hospital in the
early morning hours of May 7; the medical examiner who performed
the autopsy concluded that the cause of death was a gunshot wound
to the chest.
Two other witnesses in the parking lot described the shooter.
One of them testified that the person firing the gun was a man
wearing an orange shirt, though he later expressed uncertainty
about the shooter’s shirt color. This witness did not see Fulton with
a gun at any point, but heard multiple gunshots before he saw
Fulton fall “facedown” to the ground. The other witness testified
that she saw a man in an “orangey-colored” shirt shooting in the
parking lot. When they were later shown photographic lineups,
neither of these witnesses was able to identify Ellington as the
shooter.
According to Durden, Ellington and his acquaintance arrived
5
at her apartment between 11:00 p.m. and 12:00 a.m. that night to
drop off Meshiah. Durden testified that when Ellington entered her
apartment, he looked “shocked” and told her that “some dudes
followed him out to the car” and “a shooting started.” Durden
testified that Meshiah looked as if “something happened that scared
him.” After leaving Meshiah with Durden, Ellington and his
acquaintance left Durden’s apartment. The next day, Durden went
outside and saw that her car was full of bullet holes that had not
been there the night before. She also testified that some of those
bullet holes were near where Meshiah would sit in his car seat in
her car. Durden was “upset” and called Ellington, who just repeated
that there was a shooting.
Ricky Glover, the “neighborhood mechanic” at Durden’s
apartment complex, testified that Ellington called him on May 7 to
ask him to fix a flat tire on Durden’s Impala; phone records
corroborated that a call was made from Ellington’s phone to Glover’s
that day. While Glover fixed the flat tire, he noticed bullet holes in
the car. When Glover asked Ellington what happened, Ellington
6
said that “a guy started shooting and the car got shot” in “the
apartment” parking lot. Glover volunteered to fix the bullet holes
for an additional fee. Glover applied Bondo body filler that Ellington
had bought earlier that day3, but did not finish sanding or painting
the car, so he left the supplies inside the car to finish the job later.
As part of law enforcement’s investigation of the case,
Detective Jamael Logan obtained a copy of a video surveillance tape
from an Atlanta Police camera located near the crime scene that
partially captured the events in the shopping center parking lot the
night Fulton was shot. That surveillance video, which was admitted
into evidence and played for the jury at trial, appeared to show a
man wearing an orange shirt in the parking lot around the time of
the shooting and then a car that matched witnesses’ descriptions of
the shooter’s vehicle backing out of the lot.
The afternoon following the shooting, after viewing the
surveillance video and speaking with witnesses, Detective Logan
3 A receipt showing that Ellington had purchased Bondo body filler and
“dark cherry” colored paint from AutoZone on the morning of May 7 was
entered into evidence at trial.
7
issued a “lookout citywide” for a “maroon four-door Chevy Impala
possibly with damage of bullet holes.” That night, while working an
evening shift as a security guard at Durden’s apartment complex,
Sergeant David Remec received an anonymous call about a
“suspicious vehicle in a back parking lot.” Behind the apartment
complex, Sergeant Remec found a “maroon-in-color” Chevy Impala
that had “fresh Bondo” on the front right of the car, and he noticed
that the front right tire was a “used tire that was just put on the
vehicle.” Upon locating the vehicle, Sergeant Remec contacted the
Atlanta Police Department’s homicide unit, Detective Logan
obtained a search warrant, and Durden’s car was towed. A crime
scene technician processed the car for evidence and latent
fingerprints, took photos, and collected as evidence (among other
things) an AutoZone bag that contained Bondo and a can of primer.
Ellington was arrested in July 2016. In a recording of
Ellington’s call to Durden from jail, Ellington told Durden to “stay
8
silent[ 4] and stay strong” and said, “don’t let them folks come to you
with no bulls**t.” Days later, Detective Logan searched Ellington’s
house. During that search, Detective Logan did not find a gun or
any of the clothing that witnesses stated they saw the shooter
wearing, such as an orange shirt. When Ellington was made aware
of that fact, he commented on a recorded phone call from jail to
Durden that law enforcement would “never find” those items
because they were “looking in the wrong house.” In the weeks
following his arrest, Ellington called Durden multiple times.
Recordings of those calls reveal that Ellington asked Durden
questions such as, “Are you rolling with [me] or against [me]?” and
“Are you going to leave [me] in [here]?”
At trial, Ellington moved for a directed verdict after the State
finished presenting evidence, arguing that the State presented only
circumstantial evidence and failed to present any witnesses who
“put[ ] a gun in Mr. Ellington’s hand” or “identified him as being the
4 During Durden’s direct examination at trial, she agreed that Ellington
said “stay silent” during the call from jail. But when cross-examined, she said
that she thought it sounded like Ellington said “stay solid.”
9
person who actually shot Mr. Fulton.” The trial court denied
Ellington’s motion for a directed verdict, and the jury later convicted
Ellington on all counts except aggravated assault with a motor
vehicle.
2. Ellington contends that the trial court erred in denying his
motion for a directed verdict because the evidence was insufficient
to sustain his convictions. To that end, Ellington asserts that the
State’s case was based entirely on circumstantial evidence and that
the State presented no evidence from which the jury could find that
he possessed the requisite intent needed to prove the charged crimes
or that he even committed the act of shooting Fulton. For the
reasons explained below, this enumeration of error fails.
When evaluating a challenge to the sufficiency of the evidence
as a matter of constitutional due process, we view all of the evidence
presented at trial in the light most favorable to the verdicts and ask
whether any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt of the crimes for which he was
convicted. See Jones v. State, 304 Ga. 594, 598 (820 SE2d 696)
10
(2018) (citing Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt
2781, 61 LE2d 560) (1979)). “The standard of review for the denial
of a motion for a directed verdict of acquittal is the same as for
determining the sufficiency of the evidence to support a conviction.”
Fitts v. State, 312 Ga. 134, 141 (859 SE2d 79) (2021) (citation and
punctuation omitted). Under this review, we leave to the trier of
fact “the resolution of conflicts or inconsistencies in the evidence,
credibility of witnesses, and reasonable inferences to be derived from
the facts,” Smith v. State, 308 Ga. 81, 84 (839 SE2d 630) (2020), we
do not reweigh the evidence, Ivey v. State, 305 Ga. 156, 159 (824
SE2d 242) (2019) (citation and punctuation omitted), and “[a]s long
as there is some competent evidence, even though contradicted, to
support each fact necessary to make out the State’s case, the jury’s
verdict will be upheld,” Clark v. State, 309 Ga. 473, 477 (847 SE2d
364) (2020) (citation and punctuation omitted).
Additionally, as a matter of Georgia statutory law, “[t]o
warrant a conviction on circumstantial evidence, the proved facts
shall not only be consistent with the hypothesis of guilt, but shall
11
exclude every other reasonable hypothesis save that of the guilt of
the accused,” OCGA § 24-14-6. “[I]t is principally for the jury to
determine whether an alternative hypothesis is reasonable,” Clark,
309 Ga. at 477-478 (citation and punctuation omitted), and “this
Court will not disturb” such a finding by the jury “unless it is
insufficient as a matter of law,” Harris v. State, 313 Ga. 225, 229
(869 SE2d 461) (2022) (citation and punctuation omitted).
With respect to Ellington’s malice murder conviction, the State
was required to prove that he “unlawfully and with malice
aforethought, either express or implied, cause[d] the death of
another human being.” OCGA § 16-5-1 (a); see also id. at (b)
(“Express malice is that deliberate intention unlawfully to take the
life of another human being which is manifested by external
circumstances capable of proof. Malice shall be implied where no
considerable provocation appears and where all the circumstances
of the killing show an abandoned and malignant heart.”). In making
that determination, we keep in mind that we have long recognized
that “[a] conviction for malice murder does not require a showing
12
that the murder was premeditated or based on a preconceived intent
to kill, insofar as malice aforethought can be formed instantly.”
Howard v. State, 308 Ga. 574, 576 (842 SE2d 12) (2020) (citation and
punctuation omitted). Moreover, “the issue of whether a killing is
intentional and malicious is for the jury to determine from all the
facts and circumstances.” Id. (citation and punctuation omitted).
With respect to Ellington’s conviction for cruelty to children in
the third degree, the State was required to prove, based on the
theory it advanced in this case, that Ellington committed a “forcible
felony” as the “primary aggressor, having knowledge that a child
under the age of 18 [was] present and [saw] or hear[d] the act.”
OCGA § 16-5-70 (d) (2). Finally, Ellington’s conviction for possession
of a firearm by a convicted felon during the commission of a felony
required the State to prove, among other elements, that he
possessed a firearm. See OCGA § 16-11-133 (b).5
5 Ellington’s challenge to this conviction on appeal is based solely on the
alleged lack of evidence that he possessed a firearm. At trial, he stipulated
that he was a convicted felon, and he does not challenge that element on
appeal.
13
To the extent Ellington challenges the sufficiency of the
evidence related to counts that were merged for sentencing purposes
or vacated by operation of law—felony murder, aggravated assault
with a firearm, and possession of a firearm by a convicted felon
under OCGA § 16-11-131—such challenges are moot by virtue of
those convictions being merged or vacated for purposes of
sentencing. See Eggleston v. State, 309 Ga. 888, 890-891 (848 SE2d
853) (2020); Mills v. State, 287 Ga. 828, 830 (700 SE2d 544) (2010).
Moreover, we do not address the sufficiency of the evidence as to the
count of possession of a firearm during the commission of a felony
under OCGA § 16-11-106 because, as explained in Division 4, that
conviction also should have been merged for sentencing purposes.
With respect to the remaining counts, the evidence presented
at trial was sufficient to convict Ellington as a matter of
constitutional due process and as a matter of Georgia statutory law.
Here, two witnesses testified that they saw Ellington at the scene of
the crimes—the shopping center—around the time of the murder,
and that he had a small child with him at the time, was wearing an
14
orange shirt, and was selling merchandise with another man.
Witnesses also saw Ellington’s acquaintance arguing with Fulton,
and then Ellington and his acquaintance leaving together shortly
before the shooting. There was also testimony that there was
arguing in the parking lot before the shooting, that the shooter fired
multiple shots at the unarmed victim, and that the shooter ran over
the victim with a car after shooting him. In addition to the two
witnesses who identified Ellington in photographic lineups and at
trial as the man in the orange shirt, multiple other witnesses also
identified the shooter as wearing an orange shirt and as driving a
car that matched the description of the burgundy Chevrolet Impala
belonging to Durden, who testified that Ellington drove himself and
Meshiah in the burgundy Impala that night. These eyewitness
accounts were also corroborated by surveillance video from the
nearby Atlanta Police camera. Moreover, the State presented
evidence of Ellington’s behavior, statements, and actions after the
crimes that included Durden’s testimony that Ellington looked
“shocked” and Meshiah looked “scared” when they arrived back at
15
her apartment the night of Fulton’s murder; Ellington’s admissions
that he was present during a shooting that night; Ellington’s
attempts to have the bullet holes and other damage to Durden’s car
repaired the next day; and incriminating statements Ellington made
during jailhouse phone calls after his arrest. From this evidence, a
reasonable jury was authorized to conclude that Ellington possessed
a firearm and was the person who shot and killed Fulton—i.e., that
he committed the relevant acts; that he did so with malice
aforethought—i.e., the requisite intent; and that he did so with
knowledge that Meshiah was present and heard the act. See OCGA
§§ 16-5-1 (a), (b); 16-15-70 (d) (2); 16-11-133 (b); Young v. State, 305
Ga. 92, 94 (823 SE2d 774) (2019); Cochran v. State, 305 Ga. 827, 830
(828 SE2d 338) (2019); Williams v. State, 300 Ga. 161, 163-164 (794
SE2d 127) (2016).
Moreover, to the extent Ellington relies on certain
inconsistencies across the various witnesses’ testimony about the
night of the crimes, the resolution of any such conflicts or
inconsistencies in the evidence is for the jury, and we will not
16
reweigh that evidence on appeal. See Smith, 308 Ga. at 84; Ivey, 305
Ga. at 159. Although Ellington points to the absence of physical
evidence such as fingerprints, DNA, or ballistics evidence
specifically linking him to the crimes, and contends there was no
testimony that Ellington had a firearm or discharged a firearm at
Fulton, we have recognized that “[a]lthough the State is required to
prove its case with competent evidence, there is no requirement that
it prove its case with any particular sort of evidence,” Plez v. State,
300 Ga. 505, 506 (796 SE2d 704) (2017), such as DNA evidence or
fingerprints, Gittens v. State, 307 Ga. 841, 842 (838 SE2d 888)
(2020).
Finally, Ellington contends that the State did not exclude every
other reasonable hypothesis except for his guilt. See OCGA § 24-14-
6. At trial, Ellington contended during his closing argument that
the State’s theory of the case was “absurd,” “ridiculous,” and “not
supported by the evidence whatsoever,” and suggested that a more
“logical explanation for what might have happened” was that
someone else shot Fulton, and Ellington panicked and sped away
17
with Meshiah to get them out of harm’s way. Now on appeal,
Ellington alludes to that theory without actually articulating it or
any other alternative hypothesis that he says the jury was
authorized to consider. However, even assuming that the evidence
of Ellington’s guilt was wholly circumstantial, the jury was not
required to find that Ellington’s theory was reasonable, see Clark,
309 Ga. at 477 (“[n]ot every hypothesis is reasonable”); Cochran, 305
Ga. at 829 (“the evidence does not have to exclude every conceivable
inference or hypothesis”) (citation and punctuation omitted), and
instead could have reasonably inferred from the evidence presented
at trial that the only reasonable hypothesis was that Ellington shot
and killed Fulton in the presence of Meshiah. See Poole v. State, 312
Ga. 515, 522-523 (863 SE2d 93) (2021); Howell v. State, 307 Ga. 865,
872 (838 SE2d 839) (2020).
The evidence presented at trial and summarized in part above
was sufficient as a matter of constitutional due process for a rational
trier of fact to have found Ellington guilty beyond a reasonable doubt
of the crimes for which he was convicted, see Jackson, 443 U.S. at
18
319, and for a rational trier of fact to find no reasonable hypothesis
other than Ellington’s guilt, see OCGA § 24-14-6. Ellington’s
arguments therefore fail.
3. Ellington contends that the trial court erred when it
prohibited him from cross-examining Durden more fully regarding
unrelated criminal charges that were pending against her at the
time she testified at his trial. Specifically, he contends that by
restricting Durden’s cross-examination, the trial court violated
Ellington’s right to confront witnesses who testify against him under
the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section I, Paragraph XIV of the Georgia
Constitution. 6 For the reasons explained below, this enumeration
of error fails.
During a sidebar conference at trial, the State raised concerns
6 Despite citing the Georgia Constitution’s Confrontation Clause,
Ellington makes no argument that the Confrontation Clause contained in
Article I, Section I, Paragraph XIV of the Georgia Constitution should be
construed differently than the parallel provision contained in the Sixth
Amendment to the United States Constitution. Therefore, we decline to
consider in this case whether the relevant provision in the Georgia
Constitution should be construed differently than the federal provision. See,
e.g., State v. Holland, 308 Ga. 412, 413 n.3 (841 SE2d 723) (2020).
19
that Ellington planned to impeach Durden by cross-examining her
about the facts of her then-pending aggravated assault case in
Fulton County. The State objected that such questioning would
constitute improper character evidence, but agreed that the type of
crime being charged and the fact that the case was pending could be
properly admitted into evidence. Ellington’s trial counsel explained
that he wanted to ask Durden: “[do] you understand that you are
charged with aggravated assault for pointing a handgun at the head
of [another person]?” as stated in the indictment for those charges.
He further noted he was “not trying to go past the face of the
indictment” and was “not looking to go into the underlying facts
behind the allegations.”
The trial court ruled that Ellington was permitted to elicit on
cross-examination what crimes Durden was charged with, when she
was indicted, and whether the charges remained pending—but not
the underlying facts or circumstances of the charged offenses, which
were referenced in Durden’s indictment. Further, the court did not
permit questioning on the potential sentences for the charged
20
crimes. Ellington’s attorney did not object but responded: “Okay.
Thank you, Judge.”
Ellington’s trial counsel asked Durden on cross-examination if
she had a pending case in Fulton County for aggravated assault and
reckless conduct, if she had been indicted for those charges, if her
pending case was brought by the same District Attorney’s office as
Ellington’s case, and if her pending case impacted her testimony in
Ellington’s case. Durden acknowledged the pending charges and
denied that her pending case affected her testimony.
In denying Ellington’s motion for new trial on this
enumeration, the trial court found that he failed to object to the
court’s limitations on Durden’s cross-examination; that the trial
court did not abuse its discretion in imposing a reasonable
limitation; and that Ellington was still able to explore Durden’s
pending charges and her alleged motives on cross-examination.
Because Ellington made no objection to the trial court’s ruling
regarding the scope and limits of his cross-examination of Durden,
we review that ruling only for plain error. See OCGA § 24-1-103 (d);
21
Anthony v. State, 303 Ga. 399, 407 (811 SE2d 399) (2018) (where
trial court ruled that Anthony’s co-defendant could not cross-
examine a witness about an alleged prior arrest and the co-
defendant “appeared to accept this ruling, and Anthony raised no
objection,” appellate review of Anthony’s claim that the trial court
improperly limited his co-defendant’s ability to cross-examine the
witness was reviewed “only for plain error”). See also McKinney v.
State, 307 Ga. 129, 133 (834 SE2d 741) (2019) (holding that review
of defendant’s argument on appeal based on the Confrontation
Clause was restricted to plain-error review because the defendant
did not object on that ground at trial). To establish plain error,
Ellington “must point to an error that was not affirmatively
waived,”7 and that “error must have been clear and not open to
7 The State argues on appeal that Ellington’s response of “Okay. Thank
you, Judge,” after the trial court announced its ruling regarding the scope of
his cross-examination of Durden constituted an affirmative waiver of any
error. However, we need not decide whether Ellington’s response constituted
an affirmative waiver, because his claim fails in any event under plain-error
review. Compare Grullon v. State, 313 Ga. 40, 46 (867 SE2d 95) (2021)
(holding that defendant’s response of “no,” when asked by the trial court
whether he had any objection to jury charge, was not an affirmative waiver)
and Cheddersingh v. State, 290 Ga. 680, 684 (724 SE2d 366) (2012) (holding
22
reasonable dispute, . . . must have affected his substantial rights,
and . . . must have seriously affected the fairness, integrity or public
reputation of judicial proceedings.” McKinney, 307 Ga. at 134
(citation and punctuation omitted).
“In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him,” U.S. Const.
Amend. VI, and moreover, “[e]very person charged with an offense
against the laws of this state . . . shall be confronted with the
witnesses testifying against such person,” Ga. Const. of 1983, Art. I,
that defendant did not intentionally relinquish and thus did not affirmatively
waive an alleged error on appeal where the trial court asked counsel, “Is the
verdict form acceptable to the defense?” and counsel responded, “I believe so.
Let me look at it one more time,” but never objected) with Lewis v. State, 312
Ga. 537, 541 (863 SE2d 65) (2021) (holding that defendant intentionally
relinquished and thus affirmatively waived alleged error in trial court’s failure
to give jury instruction on voluntary manslaughter where trial counsel
withdrew the voluntary manslaughter charge she initially requested and then
affirmatively opposed the instruction at the charge conference) and Adams v.
State, 306 Ga. 1, 3 (829 SE2d 126) (2019) (holding that defendant affirmatively
waived an alleged error on appeal regarding the admissibility of a certain
exhibit into evidence where, when asked by the trial court for his thoughts in
response to the State’s argument that the exhibit was admissible, trial counsel
said “Judge, we don’t object. I think it is proper to come in”) and Zakas v.
Jackson, 352 Ga. App. 597, 599-600 (835 SE2d 371) (2019) (holding that
counsel affirmatively waived plain-error review of whether witness’s testimony
was improperly limited where counsel told the court after its ruling that he
was “okay with that” and “elect[ed] to rephrase his question” to a witness “to
comply with the court’s prior ruling”).
23
Sec. I, Par. XIV. We have recognized that “[t]he Confrontation
Clause of the Sixth Amendment to the United States Constitution
guarantees to the defendant the right to inquire about a witness’s
pending criminal charges in an effort to show that the witness has
possible biases, prejudices, or ulterior motives that may influence
[her] testimony.” Carston v. State, 310 Ga. 797, 800 (854 SE2d 684)
(2021) (citations and punctuation omitted). But we have also said
that the Sixth Amendment’s Confrontation Clause “does not
guarantee cross-examination that is effective in whatever way, and
to whatever extent, the defense might wish.” Id. As such,
“limitations on cross-examination are generally reasonable so long
as the court does not cut off all inquiry on a subject that the defense
is entitled to cross-examine on.” Id. (citation and punctuation
omitted). See also Nicely v. State, 291 Ga. 788, 796 (733 SE2d 715)
(2012) (“[T]he right of cross-examination is not an absolute right
that mandates unlimited questioning by the defense.” (citation and
punctuation omitted)).
Here, Ellington has not demonstrated that the trial court
24
erred—let alone clearly erred—in imposing the limitations it placed
on Ellington’s cross-examination of Durden. The record shows that
the trial court allowed Ellington to cross-examine Durden about her
pending criminal charges because of their potential effect on her
motive or bias in testifying, while also recognizing that a defendant
who seeks to impeach a witness by asking about the witness’s prior
crimes generally is not entitled to ask about the specific facts
underlying those crimes. See Smith v. State, 300 Ga. 538, 542 (796
SE2d 666) (2017) (trial court’s limitation on cross-examination about
pending charges was appropriate where defendant was still
“permitted to cross-examine [witness] concerning his potential
motive or bias” related to those charges); Watkins v. State, 276 Ga.
578, 580-582 (581 SE2d 23) (2003) (trial court did not impermissibly
restrict defendant’s cross-examination of witness by ruling that
defendant could question witness “about [pending] charges in order
to address any bias the witness might have as a result of the pending
charges,” but “could not ask [witness] about the specific nature of
the charges”); Brown v. State, 276 Ga. 192, 193-194 (576 SE2d 870)
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(2003) (recognizing that “the Confrontation Clause gives a
defendant the right to cross-examine a witness regarding [ ] pending
charges so as to expose any bias or motive the witness may have for
testifying for the State,” but refusing to adopt a rule “that would
permit a defendant to cross-examine a witness about the specific
underlying facts of pending criminal charges”). The trial court’s
ruling also follows our precedent that “where a witness has not
obtained a concrete plea deal from the State in exchange for [her]
testimony, the accused may not bring out the potential penalties
faced by the witness.” Smith, 300 Ga. at 542 (citation and
punctuation omitted). And to the extent that Ellington’s appellate
argument is based on his contention that Smith should be overruled,
“plain error cannot be based on an extension of existing precedent,
much less on the overruling of existing precedent.” Wilson v. State,
312 Ga. 174, 181 (860 SE2d 485) (2021) (citing Dunbar v. State, 309
Ga. 252, 258 (845 SE2d 607) (2020)). Under the circumstances of
this case, Ellington has failed to establish that the trial court plainly
erred when it allowed Ellington to cross-examine Durden about
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what criminal charges she had pending against her and about her
potential motive or bias in relation to them, but prohibited Ellington
from eliciting testimony about the specific facts underlying those
charges or about the potential sentences they carried. See, e.g.,
Smith, 300 Ga. at 541-542; Watkins, 276 Ga. at 580-582; Brown, 276
Ga. at 193-194. Ellington’s claim therefore fails.
4. Even though Ellington does not raise any merger issues on
appeal, our review of the record shows that his conviction for
possession of a firearm during the commission of a felony (Count 8)
should have merged for sentencing purposes into the conviction for
possession of a firearm by a convicted felon during the commission
of a felony (Count 10). See Marshall v. State, 309 Ga. 698, 701 (848
SE2d 389) (2020); see also Dixon v. State, 302 Ga. 691, 697-698 (808
SE2d 696) (2017) (explaining that although this Court will only
exercise its discretion to correct unraised merger errors that benefit
criminal defendants in “exceptional cases,” this Court’s general
practice is to exercise its discretion to sua sponte correct merger
errors that harm a defendant). And because the trial court
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purported to impose a sentence on Count 8 that would run
consecutive to his malice murder sentence and would be followed by
another consecutive sentence on Count 10, we vacate Ellington’s
conviction on Count 8 and remand the case to the trial court for
resentencing. See Edwards v. State, 301 Ga. 822, 823 n.1, 829 (804
SE2d 404) (2017).
Judgment affirmed in part and vacated in part, and case
remanded for resentencing. All the Justices concur.
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