King v. State ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: June 21, 2023
S23A0214. KING v. THE STATE.
WARREN, Justice.
After a jury trial in January 2020, Rico Jabar King was
convicted of the malice murder of Michael Brooks and possession of
a firearm during the commission of a felony based on shooting
Brooks. 1 King raises four claims of error on appeal: (1) that the trial
court erroneously denied King’s motion for a new trial on the
1The crimes occurred on March 28, 2018. On May 24, 2018, a DeKalb
County grand jury indicted King on four counts: malice murder, felony murder,
aggravated assault, and possession of a firearm during commission of a felony.
After a jury trial from January 14 to 23, 2020, King was found guilty on all
counts. On January 23, 2020, King was sentenced to life in prison without the
possibility of parole for malice murder and 5 years to be served consecutively
for possession of a firearm during the commission of a felony. The remaining
counts either were vacated by operation of law or merged with other counts.
King filed a timely motion for new trial on February 18, 2020, which he
amended on April 13, 2022. On June 22, 2022, the trial court denied King’s
amended motion for new trial. King timely filed a notice of appeal on July 19,
2022, in the Court of Appeals, which was transferred to this Court on October
5, 2022. The case was docketed in this Court to the term beginning in
December 2022 and submitted for a decision on the briefs.
“general grounds”; (2) that the trial court should not have allowed
witness testimony and closing arguments about voluntary
intoxication; (3) that the trial court plainly erred by admitting
character evidence about King’s alleged past alcohol and illegal drug
use; and (4) that King received constitutionally ineffective
assistance of counsel.
As explained more below, we conclude that King’s general
grounds claim fails. The trial court did not plainly err by allowing
witness testimony about voluntary intoxication, and King waived
his claim that the trial court should not have allowed closing
arguments about voluntary intoxication. King also affirmatively
waived his claim that the trial court erred by admitting purported
character evidence about King’s past alcohol and illegal drug use.
And King has failed to show that he received constitutionally
ineffective assistance of counsel. We therefore affirm King’s
convictions.
1. (a) The evidence presented at trial showed the following.
On March 28, 2018, just before noon, Brooks was walking down the
2
sidewalk on Glenwood Road in DeKalb County. King was in his
black pickup truck driving down Glenwood Road in the same
direction. Shortly after passing Brooks, King pulled into the parking
lot of a restaurant and parked his truck parallel to the road. Once
Brooks walked past King’s passenger-side window, King fired a shot
at Brooks with a .40-caliber pistol.
A witness who worked at a shopping center on the corner of
Glenwood Road heard the gunshot. He looked out the window and
“saw a guy fall down right beside the pickup truck that was over at”
a restaurant. He then saw Brooks 2 “pushing himself down the
sidewalk” before King stepped out of the pickup truck with a gun.
Brooks stood up.
That witness and three other witnesses saw Brooks try to make
his way across Glenwood Road before he was shot again, causing
him to fall down in the street. One of the witnesses testified that
the shooter, whom she identified at trial as King, then “stood over
2 None of the eyewitnesses knew Brooks or King, and only one identified
King at trial.
3
[Brooks], and emptied his whole clip.” Two of the witnesses watched
the shooting from inside a shop on Glenwood Road and testified that
they were beating on a window as they watched; once King was done
shooting, he looked at them, nodded his head, and walked away.
After the shooting, King walked back to his pickup truck
without a sense of urgency and drove off. None of the witnesses had
heard or seen any other interaction between King and Brooks before
the shooting.
Multiple people called 911 to report the shooting and police
quickly responded. Shortly thereafter, three police officers spotted
King’s pickup truck driving down the road. The officers attempted
to stop the pickup truck, but King continued to drive at around 30
to 40 miles per hour, without obeying traffic lights or stop signs, for
a few miles before pulling into a gated apartment complex. King
attempted to enter the gate code. Although King at first did not
respond to police commands to exit the truck, the officers eventually
were able to remove him from the truck and take him into custody.
4
Back at the crime scene, Brooks’s body was found in the middle
of the road. He had been shot 13 times and died as the result of the
gunshot wounds. The medical examiner later determined that the
manner of death was homicide, and the parties later stipulated that
the gun used to shoot Brooks was a .40-caliber handgun recovered
from King’s pickup truck.
(b) Later on the day of the crimes, Detective Keith McQuilkin
interviewed King at DeKalb County police headquarters. Detective
McQuilkin read King his rights under Miranda, 3 which King
waived. A recording of this interview was played for the jury. In
the interview, King stated that the police stopped him because he
“shot someone.” King said that he shot Brooks with his .40-caliber
Smith & Wesson handgun, which he left in his pickup truck. When
Detective McQuilkin asked what happened, King said he “really just
shot him” and that he “murdered him.” Among other things, King,
in explaining why he shot Brooks, said, “I guess I had to kill the
3 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
5
baby;”4 that he thought Brooks was the devil; and that he thought
Brooks was going to kill him, but Brooks did not say anything to
make King think that. King also went back and forth between
saying that he did and did not know Brooks. 5
King was charged with malice murder, felony murder,
aggravated assault, and possession of a firearm during commission
of a felony in connection with Brooks’s killing.
(c) King asserted insanity as a defense at trial, arguing that he
lacked the ability to distinguish between right and wrong during the
commission of the crimes. King called multiple witnesses at trial to
support that defense.
Three of those witnesses provided expert testimony. The first
was Dr. Matthew Norman, a licensed psychiatrist, whom the trial
court qualified as an expert in psychiatry, forensic psychiatry, and
4As explained in Division 1(c), a psychiatrist testified at trial that, in his
opinion, King thought that Brooks was a “baby” version of King. King was 42
years old and Brooks was 29 when the crimes occurred.
5Detective McQuilkin ultimately determined that King and Brooks did
not know each other.
6
psychiatric pharmacology. He testified that there was “clear
evidence that [King] was psychotic” on the day of the crimes, and
that someone experiencing King’s symptoms would have had
“difficulty” distinguishing between right and wrong on the day of the
shooting.
In Dr. Norman’s opinion, King’s “thinking at the time of the
incident” was that King “essentially heard a voice that [Brooks] was
[King’s] baby form” and that King was “command[ed]” to “kill his
baby self” in order to save King. Dr. Norman thought that King’s
psychosis was caused by a weight-loss pill that King had been taking
called phentermine. Dr. Norman noted that King had been
prescribed 30 phentermine pills in March 2017, a year before the
crimes, and then again in March 2018, the same month of the
crimes. He recounted evidence that King was taking the pills daily,
but noted that this information was based only on King’s self-
reports.
Dr. Norman agreed that there is “not a lot” of research into the
relationship between phentermine and psychosis. He testified that
7
there had been “a total of nine . . . documented individual cases” of
“phentermine-related psychosis” since the drug hit the market in
1959, making it a “known side effect, but not a common” one. But of
the nine people whose phentermine-related psychosis was reflected
in published reports, five of them were “taking more than the
prescribed dosage,” two had “a history of psychiatric illness or they
had a family history of psychiatric illness,” another was taking the
prescribed dose of phentermine but “he bought it off the street . . . so
there is no guarantee” that it was actually phentermine and he was
also taking methadone at the same time, and another “had a past
history of depression, and she was taking it with marijuana.” Dr.
Norman later testified that psychosis was listed as a side effect of
phentermine on the package insert—a published informational
document reflecting a “combination of what the FDA and the
manufacturer have agreed” needs to be listed—and that the
placement of the psychosis side effect’s listing on the package insert
reflected that it was the least common side effect listed.
8
King also called Dr. Margaret Flanagan, a licensed
psychologist with the Georgia Department of Behavioral Health and
Developmental Disabilities, and the trial court qualified her as an
expert in psychology and forensic psychology. Among other things,
Dr. Flanagan concluded that someone experiencing “the symptoms
that [King] reported that he experienced” at the time of the crimes
would not know the difference between right and wrong. Although
Dr. Flanagan would not “speak directly” to the cause of King’s
mental state because that is a “medical issue” and Dr. Flanagan is
“not a medical doctor,” she thought that phentermine was the
“likely” cause of King’s mental state.
Dr. Amy Gambow, a licensed clinical psychologist working at
Georgia Regional Hospital, was qualified as an expert in psychology
and forensic psychology. King’s counsel asked Dr. Gambow whether
someone “showing the symptoms and the mental processes” that
King displayed would be able to “distinguish between right and
wrong,” to which she responded, “it does not seem so.” Dr. Gambow
“determined that the cause of the psychosis was from phentermine.”
9
King also introduced testimony from two lay witnesses: his
wife, Angela, and his girlfriend, Holly Hill. 6 Angela and King had
been married for about 18 years before the crimes. She testified that
aside from the few weeks leading up to the shooting, King had never
shown “symptoms of mental illness or bizarre behavior” and had not
to her knowledge “ever [been] diagnosed with any major mental
illness.” The night before the crimes, however, King was acting
“strange.” Angela also testified that King had been taking
phentermine, and that when she gave King’s pill bottle to his prior
lawyer, “there might have been like six” pills left in the bottle.7
Hill, who worked with King, had known him for a little over a
year before the crimes; they had been in a relationship for “maybe
like six months” before the crimes. She testified that King had not
6Evidence was presented that King was having an extramarital affair
with Hill.
7 According to the State’s expert who testified later at trial, Dr. Randall
Tackett, King should have had 14 phentermine pills in the bottle if he were
taking one a day as prescribed.
10
shown any “symptoms of mental illness or any strange behavior”
around her until “maybe like the two weeks before” the crimes.
King did not testify in his own defense.
(d) In rebuttal, the State offered the expert testimony of Dr.
Randall Tackett, a professor at the University of Georgia College of
Pharmacy who had worked in the fields of pharmacology and
toxicology for “a little over 40 years.” The trial court qualified Dr.
Tackett as an expert “in the field of pharmacology, toxicology, and
regulatory affairs.” He explained that pharmacology “looks at how
drugs produce their effects” and that toxicology “focuses more on the
side effects or the adverse effects not only of drugs but also of
chemicals and different substances.”
Dr. Tackett testified that King was prescribed 30 phentermine
pills and that had he been taking one a day as prescribed, there
would have been 14 left on the day of the crimes. He also testified
that taking “more than the prescribed dosage . . . would greatly
increase the potential” for phentermine to cause psychosis. Dr.
Tackett testified that if King “was taking the drug as prescribed[,]
11
that it would not have caused psychosis.” But “if he was taking more
of the drug than was prescribed, then that is a potential for causing
the psychosis.” Even so, Dr. Tackett still “would not expect the
psychosis to be prolonged to the extent that” King’s psychosis
reportedly was. Dr. Tackett clarified that he did not evaluate
“whether [King] was psychotic,” but examined whether King’s
“reported psychosis” was caused by phentermine.
The jury convicted King on all counts. He was sentenced to life
without the possibility of parole for malice murder and five years to
be served consecutively for possession of a firearm during the
commission of a felony.
2. King contends that the trial court committed reversible
error when it failed to grant his motion for a new trial. Specifically,
he argues that the trial court should have exercised its discretion as
the thirteenth juror and granted King’s motion for new trial “in the
interest of justice.” That argument implicates the “general grounds”
for obtaining a new trial under OCGA §§ 5-5-20 & 5-5-21.
12
“When these so-called ‘general grounds’ are properly raised in
a timely motion for new trial, the trial judge must exercise a broad
discretion to sit as a ‘thirteenth juror.’” Ridley v. State, 315 Ga. 452,
456 (883 SE2d 357) (2023) (citation and punctuation omitted).
Sitting as the thirteenth juror “requires the judge to consider
matters typically reserved to the jury, including conflicts in the
evidence, witness credibility, and the weight of the evidence.” Id.But, contrary to King’s argument, “the merits of the trial court’s
decision on the general grounds are not subject to our review,” id.,and the decision to grant a new trial on the general grounds “is
vested solely in the trial court.” Ward v. State, No. S23A0139, 2023
WL 3468140, at *4 (Ga. May 16, 2023) (citation and punctuation
omitted).
To the extent King argues the trial court failed to exercise its
discretion as the thirteenth juror, we disagree. In its order denying
King’s motion for a new trial, the court expressly rejected King’s
general grounds claim because it found that “the weight of the
evidence does not preponderate heavily against the verdict and the
13
verdict was not contrary to the evidence or the principles of justice
and equity.” King’s general grounds claim therefore fails.8 See
Strother v. State, 305 Ga. 838, 843 (828 SE2d 327) (2019) (trial court
properly exercised its discretion as the thirteenth juror when “[i]n
its order denying the motion, the trial court referred to the
numbered paragraphs in which Appellant asserted the general
8 King does not separately enumerate as alleged error that the evidence
was insufficient under Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d
560) (1979). However, in the past, in evaluating a trial court’s denial of a
motion for new trial on the general grounds, see OCGA §§ 5-5-20 & 5-5-21, we
have performed or referenced a constitutional due process sufficiency-of-the-
evidence review under Jackson. See, e.g., Montgomery v. State, 315 Ga. 467,
474 (883 SE2d 351) (2023); Bundel v. State, 308 Ga. 317, 318-319 (840 SE2d
349) (2020); Lewis v. State, 296 Ga. 259, 261 (765 SE2d 911) (2014). But see
Caviston v. State, 315 Ga. 279, 282-284 (882 SE2d 221) (2022) (limiting the
general-grounds analysis to evaluating whether the trial court exercised its
discretion when the defendant did not make a Jackson sufficiency argument
as part of his general-grounds enumeration or separately). We have done so
despite our recognition that the general grounds and a constitutional-
sufficiency-of-the-evidence claim under Jackson are “two distinct legal
arguments” and “require the trial court to apply distinct legal standards.” See
Casey v. State, 310 Ga. 421, 425 (851 SE2d 550) (2020). We have also done so
notwithstanding our statements that “[t]he merits of the trial court’s decision
on the general grounds are not subject to our review.” Ridley, 315 Ga. at 456.
Although many of us question whether it is proper for this Court to
import Jackson into an appellate review of the general grounds (or to otherwise
rely on Jackson as part of that analysis), we need not determine the propriety
of that practice today. King’s general grounds claim fails in all events because
the trial court exercised its discretion as the thirteenth juror, and because the
evidence against King was constitutionally sufficient to affirm his convictions.
14
grounds in his motion and then said, ‘the State presented ample
evidence to support the jury verdict and . . . the evidence was not
sufficiently close nor represents a failure of justice in general’”)
(alteration in original). See also Ward, No. S23A0139, 2023 WL
3468140, at *4 (“We presume, in the absence of affirmative evidence
to the contrary, that the trial court did properly exercise such
discretion.”) (citation and punctuation omitted).
3. King contends that the trial court erred by admitting
testimony and allowing argument about voluntary intoxication. 9
First, he argues it was improper for the State to question witnesses
and make closing arguments about voluntary intoxication.
Second, King argues that, even if voluntary intoxication
generally was a permissible subject, certain testimony and
arguments were improper because the State misstated the law of
voluntary intoxication and the trial court should have issued an
9 In King’s brief, this enumeration’s heading complains about the trial
court’s charge on involuntary intoxication, but the entirety of the substantive
argument following the heading pertains to voluntary intoxication. We
therefore construe King’s contention as pertaining to voluntary intoxication.
15
instruction clarifying the relationship between voluntary
intoxication and an insanity defense. For the reasons below, King’s
arguments fail.
(a) Some additional background is necessary before
addressing King’s arguments. At trial, both the State and King
asked multiple witnesses about voluntary intoxication, with respect
to both illegal and prescription drugs. King’s counsel first asked Dr.
Norman why he evaluated “illegal drug use” when he interviewed
King. Dr. Norman responded that “voluntary intoxication, taking
an illegal substance and getting intoxicated on that and that making
our thinking go awry, is not an excuse.” King followed up by asking
“hypothetically if someone just gets high on cocaine or high on
crack[,] becomes psychotic and kills someone, is that voluntary
intoxication?” Dr. Norman said that is “up to the law. But in my
opinion as an examiner, that is voluntary intoxication.” On cross-
examination, Dr. Norman agreed that “if someone misuses, abuses,
overuses phentermine and became psychotic and killed someone,
that would be voluntary intoxication[,]” “which is not a defense.”
16
Then, in questioning Dr. Flanagan, King asked whether
“voluntary intoxication [is] a legitimate cause for being found [not
guilty by reason of insanity.]” Dr. Flanagan said, “No.” On cross-
examination, the State asked whether insanity caused by
“misusing” or “abusing” a prescription drug is “voluntary
intoxication,” which is “not a defense.” Dr. Flanagan said, “That’s
correct.”
Last, in questioning Dr. Gambow, King asked whether
“voluntary intoxication [is] grounds for not guilty by reason of
insanity.” Dr. Gambow said it “is not.” On cross-examination, the
State asked whether voluntary intoxication caused by illegal drugs
or abusing a prescription is a defense, and Dr. Gambow agreed that
it is not.
King argued in closing that there was no evidence of voluntary
intoxication. The State, by contrast, argued in closing that if the
jury found that King “was lacking in mental capacity due to
voluntary intoxication,” such a finding would not support a defense
for King. In doing so, it emphasized the evidence suggesting that
17
King was taking more phentermine than prescribed. King did not
object to any of the above statements at trial.
(b) King contends that the trial court erred by allowing the
State’s closing arguments about voluntary intoxication because
those arguments were unsupported by the evidence and contained
misstatements of the law. But King did not object at the time, so
these claims are waived. See Walker v. State, 312 Ga. 232, 236-237
(862 SE2d 285) (2021) (failure to object to closing arguments
amounts to waiver); Gates v. State, 298 Ga. 324, 328-329 (781 SE2d
772) (2016) (holding that the defendant “waived review of his
arguments relating to the allegedly improper closing argument here
due to his failure to object below” because plain-error review does
not apply to closing arguments).
(c) King’s claims that the trial court erred by allowing witness
testimony about voluntary intoxication and not issuing a clarifying
instruction about the relationship between voluntary intoxication
and King’s insanity defense are not preserved for ordinary appellate
review because King did not object at trial to the relevant testimony
18
or request a clarifying instruction. We nonetheless review these
claimed evidentiary and instructional errors for plain error. See
Griffin v. State, 309 Ga. 860, 863-864 (849 SE2d 191) (2020)
(evidentiary errors); Choisnet v. State, 295 Ga. 568, 571-572 (761
SE2d 322) (2014) (instructional errors).
The plain-error standard has four prongs.
First, there must be an error or defect—some sort of
“[d]eviation from a legal rule”—that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it “affected the
outcome of the trial court proceedings.” Fourth and
finally, if the above three prongs are satisfied, the
appellate court has the discretion to remedy the error—
discretion which ought to be exercised only if the error
“‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’”
Taylor v. State, 315 Ga. 630, 636 (884 SE2d 346) (2023) (quoting
Gates, 298 Ga. at 327).
(i) We first address King’s claim that it was improper for the
trial court to admit the State’s evidence about voluntary
19
intoxication. At trial, King asked all three experts he called about
voluntary intoxication and incorporated arguments about the lack
of voluntary intoxication into his closing. Therefore, King has
affirmatively waived this claim and as a result has failed to show
that the trial court plainly erred. See Griffin, 309 Ga. at 863-866
(defense affirmatively waived objection to prosecution eliciting
testimony about defendant’s racism because the defense made a
strategic decision not to object to this evidence, and instead
attempted to use it “to bolster his claim of self-defense and to
undermine the State’s case”); Taylor v. State, 302 Ga. 176, 180-181
(805 SE2d 851) (2017) (defense affirmatively waived objection to the
State’s witness testifying about “his opinion on the issue of self-
defense” because the defense deliberately introduced the topic of
self-defense by asking the witness “several questions about his
opinion about the viability of a self-defense claim”).
(ii) We next address King’s arguments that testimony about
voluntary intoxication contained incorrect statements of law and
that the trial court should have issued an instruction clarifying the
20
relationship between voluntary intoxication and an insanity
defense. This claim fails because King cannot satisfy the plain-error
test’s third prong: that the alleged error “likely affected the outcome
of the trial.” Choisnet, 295 Ga. at 572 (citation and punctuation
omitted).
King complains that expert witnesses testified that voluntary
intoxication is not a defense without noting the exception that
voluntary intoxication can be a defense when the intoxication
results in a “permanently altered” “brain function so as to negate
intent.” Perez v. State, 309 Ga. 687, 690 n.2 (848 SE2d 395) (2020)
(quoting Horton v. State, 258 Ga. 489, 491 (371 SE2d 384) (1988) and
Guyse v. State, 286 Ga. 574, 578 (690 SE2d 406) (2010)) (punctuation
omitted). But King did not argue at trial, nor does he argue on
appeal, that the jury was likely to have found that he met the
requirements of that narrow exception. In fact, he argued at trial
that he was not voluntarily intoxicated. And now on appeal, he
reiterates that his “sole defense” at trial was “temporary insanity”—
a claim that is hard to square with his new contention about an
21
exception to voluntary intoxication that would require his brain
function to be permanently altered for the exception to apply. See
Perez, 309 Ga. at 690 n.2. Moreover, King also has not pointed to
any evidence suggesting he has such permanent brain alteration.
Under these circumstances, King has not carried his burden under
the plain-error test’s third prong to show that the jury hearing that
voluntary intoxication is not a defense, without the trial court giving
a clarifying instruction about the exception to that general rule,
“likely affected the outcome of the trial.” See Choisnet, 295 Ga. at
572-573 (holding that the trial court’s instruction on a delusional
compulsion, “even granting” that it was incomplete, was “unlikely”
to have affected the trial’s result because the defendant’s expert
testified that the defendant “may have been” psychotic during the
crimes and the State’s expert testified that he “did not believe” the
defendant was acting under a delusional compulsion).
4. King contends that the trial court also erred by allowing
testimony about King consuming illegal drugs and alcohol—
testimony he labels as improper character evidence barred by OCGA
22
§ 24-4-404. This claim fails under plain-error review because King
affirmatively waived it.
(a) At King’s trial, multiple witnesses testified about whether
King was known to consume drugs and alcohol. For example, King
asked Dr. Norman whether he “address[ed] illegal drug use” when
he interviewed King; Dr. Norman said that he did. King’s counsel
then asked whether there was “a note anywhere in the medical
records that suggested that [King] might have used cocaine.” Dr.
Norman said yes, explaining that a medical record from while King
was in jail reflected that, while meeting with a physician, “King
admitted to using crack cocaine, smoking marijuana, and drinking
alcohol,” and another medical record reflected that King later met
with the same physician again and retracted that admission.
Dr. Norman testified that certain other medical records also
showed that King denied using cocaine. Dr. Norman went on to say
that King “certainly tried” to convince Dr. Norman that it was
“completely impossible” for him to use drugs because King got his
commercial driver’s license in 1996 and that King had been subject
23
to random drug tests because of his job as a truck driver but he had
“never had any issues,” which King “used . . . as evidence that he did
not use cocaine.” The State asked Dr. Norman about those same
medical records reflecting King’s admission to consuming cocaine,
marijuana, and alcohol. The State asked the same of Doctors
Flanagan and Gambow on cross-examination and asked similar
questions while examining the doctor to whom King made that
admission.
King also asked Hill, among other things, whether she knew
“King to use any illegal substance” and whether he was “subject to
random drug screens” at work. Hill answered no to the first and yes
to the second question. King also asked whether she knew him to
drink alcohol and get intoxicated, and Hill responded that King
drank “socially” and did not get intoxicated. And in response to a
question from the State on cross-examination, Hill testified that
King ordered at least one margarita at lunch the day before the
murder. King’s trial counsel did not object to any of the above
24
statements and argued in closing that there was a lack of evidence
of King’s voluntary intoxication.
(b) This enumeration is not preserved for ordinary appellate
review: because King did not object to the relevant testimony at
trial, we review it only for plain error. See Griffin, 309 Ga. at 863-
864. And King’s argument fails under that review because, having
introduced the issue of his alcohol and illegal drug use and argued
as part of his defense that there was a lack of evidence of voluntary
intoxication, King affirmatively waived this claim—thus failing the
first prong of the plain-error test. See id.; Taylor, 302 Ga. at 180-
181.
5. King contends that his trial counsel provided ineffective
assistance under the Sixth Amendment to the United States
Constitution in four respects: for failing to (1) properly obtain
certification of medical records from while King was incarcerated for
the crimes; (2) object to character evidence about King’s alcohol and
drug consumption; (3) object to an alleged “golden rule” violation;
25
and (4) object to misstatements about the definition of voluntary
intoxication and failing to request a clarifying instruction.
To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant. See Strickland v. Washington, 466 U.S. 668, 687 (104
SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356
(689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant
must demonstrate that his attorney “performed at trial in an
objectively unreasonable way considering all the circumstances and
in the light of prevailing professional norms.” Romer v. State, 293
Ga. 339, 344 (745 SE2d 637) (2013). See also Strickland, 466 U.S.
at 687-688. To satisfy the prejudice prong, a defendant must
establish a reasonable probability that, in the absence of counsel’s
deficient performance, the result of the trial would have been
different. See id. at 693-694. “If an appellant fails to meet his or
her burden of proving either prong of the Strickland test, the
26
reviewing court does not have to examine the other prong.”
Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
Claims of ineffective assistance of counsel involve mixed
questions of law and fact, and “a trial court’s factual findings made
in the course of deciding an ineffective assistance of counsel claim
will be affirmed by the reviewing court unless clearly erroneous.”
Green v. State, 302 Ga. 816, 818 (809 SE2d 738) (2018) (citation and
punctuation omitted). Conclusions of law based on those facts are
reviewed de novo. See Bright v. State, 292 Ga. 273, 274 (736 SE2d
380) (2013).
(a) King contends his trial counsel was ineffective for failing
properly to obtain certification of medical records from the time of
King’s incarceration, preventing their admission under the so-called
business records exception to the rule against hearsay. See OCGA
§ 24-8-803 (6). King argues that his trial counsel’s failure to obtain
proper certification was constitutionally deficient because counsel
had ample time to do so and the decision not to obtain proper
certification was not a part of her trial strategy. He further argues
27
that he suffered prejudice as a result because the jurors were unable
to review the records themselves and instead had to rely on
testimony about what the records contained, and the jury might not
have found the witnesses’ testimony about the records credible.
Assuming without deciding that his trial counsel was deficient in
this respect, King has failed to meet his burden of showing prejudice.
At trial, while questioning Dr. Norman, King sought to admit
certified medical records from King’s post-arrest visit to Central
State Hospital. The court did not admit those records but suggested
to King’s trial counsel that if she wanted them admitted into
evidence, she should “start making some efforts” to obtain proper
certification. Even though the medical records themselves were not
admitted into evidence, Doctors Norman, Flanagan, and Gambow
testified that they reviewed those records, and Dr. Flanagan and Dr.
Gambow testified about the contents of the records.
King’s trial counsel testified at the motion for new trial hearing
and said that she discovered there was an issue with getting the
relevant medical records certified “right before trial.” Knowing “that
28
[the] doctors were going to be able to testify about” the records,
which is “what mattered,” she did not seek a continuance to obtain
certification so that the records themselves could be admitted.
When asked whether there were “items in the medical records that
tended to support” King’s defense that were not “discussed by each
of the doctors,” she said “not that I recall, no.” King did not admit
the medical records into evidence at the motion for new trial stage,
and the trial court held that King did not suffer any prejudice from
counsel’s alleged deficiency in failing to obtain certified copies of the
records and admitting them into evidence.
Here, King has failed to show prejudice because he has failed
to show that there is a “reasonable probability” of a better result had
his trial counsel admitted those medical records. Foreman v. State,
306 Ga. 567, 570 (832 SE2d 369) (2019) (citation and punctuation
omitted). King did not admit the medical records at the motion for
new trial stage, nor has he pointed to anything contained in the
records that would have been useful to him that the jury did not hear
at trial. We are accordingly left to speculate about the records’
29
contents and their utility to King, whether by corroborating the
witnesses’ testimony about the records or providing additional,
helpful information. But speculation is insufficient to show
prejudice. See id. at 570-571 (defendant failed to show prejudice
from his trial counsel not calling a certain witness and putting a
photograph of the witness into evidence at trial when the defendant
did not have the witness testify at the motion for new trial hearing
and did not put a photograph of the witness into the motion for new
trial record). Accordingly, this claim fails.
(b) King contends that his trial counsel provided ineffective
assistance of counsel by not objecting to testimony about his drug
and alcohol consumption as improper character evidence. This
claim was not raised at the motion for new trial stage, when King
had new counsel, so it is waived. See Elkins v. State, 306 Ga. 351,
361(830 SE2d 217) (2019).
(c) King argues that his trial counsel provided ineffective
assistance by not objecting to an alleged “golden rule” violation. See
Menefee v. State, 301 Ga. 505, 512 (801 SE2d 782) (2017) (defining
30
the “golden rule”). Because we see no violation of the “golden rule,”
we conclude that King’s trial counsel was not constitutionally
deficient in this regard.
During closing, the prosecutor said the following:
Close your eyes. I want you to envision it being a
beautiful spring morning here in Decatur, Georgia, March
28th, 2018. The sun is out.
The weather was nice. Michael Brooks is walking
along Glenwood [Road] in Decatur, Georgia. He was
walking to the bus stop to go home to meet his mom,
Hannah Pittmon, to help her clean that day because she
owned a cleaning business. He was walking. I want you
to imagine a pickup truck driving down Glenwood
Westbound, seeing Michael, making a U-turn right at
Hooper Street, driving back down and passing Michael,
turning into the parking lot of [the restaurant], and lying
in wait for him to walk by. I want you to picture Michael
walking and passing that pickup truck. I want you to
envision this sound as Michael walks by. I want you to
envision Michael dropping to the ground and sliding along
that sidewalk after being shot. I want you to picture him
being able to pick his injured body up and run away from
the danger and try to run to safety, but collapsing again
because of the injury he just sustained. I want you to
picture the defendant getting out of his truck and chasing
Michael into the middle of that road and standing over
him and shooting him multiple times over and over and
over and over and over and over again, and unloading his
clip. I want you to picture [multiple witnesses] watching
in horror. I want you to hear the women yelling, no, from
31
inside of that salon. I want you to continue to walk with
me down this lane of horrible memories. I want you to
picture these people, these witnesses, running to
Michael’s aid, but it’s too late. I want you to picture the
defendant walking away after nodding his head like,
yeah, I did that, getting in his truck and driving off. I
want you to envision the trauma that these people
probably still experience because of what they witnessed.
I want you to picture Ms. Pittmon getting that call that
day from a detective telling her that her son was
murdered and him walking out of her life for eternity.
Then I want you to picture the defendant, as he put it on
a jail call, walking because y’all find him not guilty. I
want y’all to picture him walking amongst us at some
point in time in the future because y’all find him not
guilty by reason of insanity. Now, I want you to open your
eyes from that nightmare, and I want y’all to go back to
the jury deliberation room after the judge gives you the
law and find him guilty.
King claims the State violated the “golden rule” when it asked the
jury to imagine King “walking amongst us at some point in time in
the future because [the jury found] him not guilty by reason of
insanity.” 10
10King does not contend that the State’s closing argument included
commentary about his “future dangerousness.” See, e.g., Wyatt v. State, 267
Ga. 860 (485 SE2d 470) (1997). We express no view on that issue, including
about whether an argument about future dangerousness would be undermined
by recent legal developments.
32
Under Georgia law, “golden rule” violations occur when a party
asks the “jurors to place themselves in the position of the victims.”
Menefee, 301 Ga. at 512. But the prosecutor here did not ask the
jurors to place themselves in the victim’s position, so a “golden rule”
objection would have failed. See Rucker v. State, 291 Ga. 134, 138
(728 SE2d 205) (2012) (concluding that the prosecutor did not violate
the “golden rule” when the defendant raised an insanity defense and
the State pointed “out the number of potentially dangerous people
like [him] in society” and said, “Are we really so sure of this science
of forensic psychology and psychiatry that we bet our lives on it?”);
Sanders v. State, 290 Ga. 637, 640 & n.3 (723 SE2d 436) (2012)
(concluding that a prosecutor did not violate the “golden rule” by
stating that “it could have been anybody” whom the defendant
killed), superseded by statute on other grounds as recognized in
State v. Orr, 305 Ga. 729, 736 (827 SE2d 892) (2019). And because
failing to make a meritless objection is not constitutionally deficient,
Jones v. State, 314 Ga. 466, 471 (877 SE2d 568) (2022), this claim
fails.
33
(d) King contends that his trial counsel was ineffective by not
objecting to alleged misstatements about the definition of voluntary
intoxication and not requesting a clarifying instruction about the
interaction between voluntary intoxication and insanity—the same
statements at issue in his second enumeration of error. Assuming
without deciding that his trial counsel was deficient, King has failed
to show he was prejudiced.
As with King’s second enumeration of error, King takes issue
with witness testimony and the State’s argument that voluntary
intoxication is not a defense. A more accurate statement of law, he
argues, would have included that voluntary intoxication is a defense
“in the extreme situation” where the intoxication results in a
“permanently altered” “brain function so as to negate intent.” See
Perez, 309 Ga. at 690 n.2.
But King has failed to show that there is a reasonable
probability that he would have achieved a better result at trial but
for this assumed deficiency. See Munn v. State, 313 Ga. 716, 728
(873 SE2d 166) (2022) (citation and punctuation omitted). Indeed,
34
King’s argument suffers from the same defect as in the second
enumeration: the theory of King’s defense at trial was that he was
temporarily insane and that he was not voluntarily intoxicated at
all; he did not argue that he suffered from permanent brain damage
preventing him from manifesting intent, and he has not pointed to
any evidence at trial (nor have we identified any) that would have
supported that theory. Thus, King has failed to show that, had the
jury been aware that voluntary intoxication could potentially be a
defense in an “‘extreme situation,’” Perez, 309 Ga. at 690 n.2, there
is a reasonable probability he would have achieved a better result at
trial. See Choisnet, 295 Ga. at 572-573; Grier v. State, 313 Ga. 236,
246 (869 SE2d 423) (2022) (“The test for prejudice in the ineffective
assistance analysis is equivalent to the test for harm in plain[-]error
review.”) (cleaned up). See also Munn, 313 Ga. at 723, 728
(defendant was not prejudiced by trial counsel not requesting jury
35
instruction on justification when the evidence of justification was
weak). This enumeration therefore fails.11
Judgment affirmed. All the Justices concur.
11 Citing State v. Lane, 308 Ga. 10 (838 SE2d 808) (2020), King also
argues that the cumulative effect of the errors and deficiencies in his case
affected the outcome of his trial even if none did alone. Assuming one error in
the plain-error context (that the trial court admitted testimony misstating the
law of voluntary intoxication) and two deficiencies in the ineffective assistance
of counsel context (the first concerning trial counsel’s failure to obtain properly
certified medical records and the second also concerning the misstatements of
the law of voluntary intoxication), King “has not demonstrated a reasonable
probability that, but for these failures, the outcome of the proceeding would
have been different.” See Payne v. State, 314 Ga. 322, 334 (877 SE2d 202)
(2022) (cumulative effect of a presumed clear error by the trial court not giving
an accomplice corroboration charge, a presumed deficiency by trial counsel for
not requesting that charge, and a presumed deficiency by trial counsel for not
objecting to hearsay was insufficient to establish cumulative error).
36