McKinney v. State

FINAL COPY

                S19A0908. MCKINNEY V. THE STATE.


      NAHMIAS, Presiding Justice.

      Appellant Sidney McKinney was convicted of malice murder

for killing his former girlfriend Deborah Thigpen by beating and

strangling her. On appeal, he argues that the trial court erred by

admitting his conviction for a battery against Thigpen committed

three months before the murder as well as evidence of his attack on

another former girlfriend 15 years earlier. Appellant also argues

that his trial counsel provided ineffective assistance by failing to

object to the prosecutor’s statements in closing argument that

Appellant had previously raped Thigpen. We affirm.1


      1 Thigpen was killed on December 27, 2014. On August 5, 2015, a Thomas

County grand jury indicted Appellant for malice murder, felony murder based
on aggravated assault, and aggravated assault with an offensive weapon.
Appellant was tried from January 25 to 27, 2016, and the jury found him guilty
of all counts. The trial court sentenced Appellant to serve life in prison without
the possibility of parole for malice murder. The court merged the felony murder
and aggravated assault counts into the malice murder conviction, although the
felony murder count was actually vacated as a matter of law, see Malcolm v.
State, 

 (

) (1993). Appellant filed a timely motion
     1. Viewed in the light most favorable to the verdicts, the

evidence presented at Appellant’s trial showed the following.

Thigpen met Appellant in September 2013, and they began dating.

In January 2014, Thigpen’s friend Phillip Bradley saw her and

Appellant walking down the street arguing. Appellant grabbed her

a few times and pushed her. After the fight, Thigpen told Bradley

that she wanted to get away from Appellant, and Bradley let her

stay with him for a while. During that time, when Bradley and

Thigpen would sit on his porch, Appellant would call her and say

things like, “I can see what you’re doing” and “I’m watching you.”

About three days after Thigpen started staying with Bradley,

Appellant showed up at Bradley’s house wanting to talk to Thigpen.

She spoke with him briefly, but after Bradley told Appellant to leave

and shut the door, Appellant became angry and kicked the door until

it fell off its hinges. He left when Bradley threatened to call the




for new trial, which he later amended with new counsel. After a hearing, the
trial court denied the motion on December 17, 2018. Appellant then filed a
timely notice of appeal, and the case was docketed to the April 2019 term of
this Court and submitted for decision on the briefs.
                                     2
police. In February 2014, Thigpen reported to the police that

Appellant had assaulted her, but he ultimately was not charged.

     After Appellant and Thigpen’s relationship ended in early

2014, Thigpen resumed a romantic relationship with Johnny

Johnson. Thigpen told Johnson that Appellant had been “abusive

and beat her all the time.” On March 1, 2014, Thigpen was staying

with Johnson. According to Thigpen’s statements to Johnson and the

police, after Johnson left for work that morning, Appellant broke

into the house through a window and raped her. A responding police

officer found the screen off the window and a flower pot placed as if

somebody had used it to climb to the window. In an evolving story,

Appellant eventually admitted to being in the house but claimed

that he had consensual sex with Thigpen. Appellant was arrested

for rape and burglary and held in jail from March until September

2014, when the grand jury declined to indict him.

     On September 18, shortly after Appellant was released, he

grabbed Thigpen on the street and tried to choke and sexually

assault her. The responding police officer noted that Thigpen had

                                  3
scratches on her back and arm, a cut over her lip, and swelling to

her right eye. She also had some dirt on her back, and her clothing

was disheveled. Appellant was charged with misdemeanor family

violence battery; representing himself, he pled guilty in October

2014 and was sentenced to 12 months on probation.

     Appellant knew that Thigpen, who was a habitual drug user

and may have supported that habit with prostitution, frequently sat

on a set of steps on Stevens Street in Thomasville. On more than one

occasion, Johnson saw Appellant following Thigpen, and her aunt

said that Appellant would “jump out of the bushes” at Thigpen.

Another neighbor saw Appellant watching Thigpen “from the trees,

bushes, anywhere he could stand to watch her.” Thigpen was so

scared of Appellant that she told at least six of her confidants,

including relatives and close friends, that if anything ever happened

to her, Appellant did it. And Johnson overheard a call Appellant

made to Thigpen, in which Appellant said, “I’ll kill you bi**h. If I

can’t have you, [Johnson] can’t have you.”

     On the morning of December 27, 2014, Thigpen left Johnson to

                                 4
walk with her friend John Cain across town. Johnson gave her a box

cutter to protect herself from Appellant. Later in the day, Thigpen

and Cain walked along the railroad tracks and used drugs. While on

the tracks, Thigpen kept looking back and saying that someone was

following them. Cain saw the “shadow of a man” behind them.

Thigpen said she was scared, and they left quickly. They went to a

house about a block away from the steps where Thigpen frequently

sat. At around 7:30 p.m., they started walking away from the house

in search of a drug dealer. A man Thigpen knew drove up, and she

got in the car. Cain walked to a nearby store; as he was leaving at

about 8:00 p.m., he saw Appellant walking on Stevens Street. At

8:34 p.m., a Thomasville police officer who knew Thigpen saw her

sitting on her usual steps.

     Around noon the next day, two men found Thigpen’s body in

the bushes along a path behind an abandoned house across from the

steps on Stevens Street. She was naked from the waist down. In a

nearby trash can, a detective found a pair of panties and two pairs

of tights rolled on top of each other with leaves and other debris on

                                 5
them. Johnson and Cain identified the tights as the ones Thigpen

was wearing when they last saw her. The injuries on Thigpen’s body

indicated that she had been hit multiple times on the head and in

the face and that a hand and a ligature of some kind, such as tights

pulled taut, had been wrapped and squeezed around her neck. She

also had scrapes along her buttocks area, indicating that she had

been dragged or was trying to scoot away while on the ground. The

cause of Thigpen’s death was asphyxia and blunt force trauma. It

would have taken at least five minutes for her to be killed in this

way. A sexual assault kit revealed no injuries in her genital area,

and swabs of the area did not show any male DNA. Under Thigpen’s

fingernails, however, there was DNA from Appellant.

     Around 7:30 p.m. on the day Thigpen’s body was found, a GBI

special agent picked up Appellant from his mother’s house and

interviewed him at the police station. Appellant had small cuts and

a bite on his hands and a scratch on the left side of his neck. He also

had recently chewed off all of his fingernails. Appellant first told this

story: He had not seen Thigpen since December 17, when they had

                                   6
sex along the path behind the abandoned house on Stevens Street.

He had been walking from his parents’ house to buy a cigarette on

the evening of December 27 when he encountered a drunk man in

the street in front of a housing project. Appellant tried to pull the

man out of the road, but the man fought back with a box cutter and

bit Appellant’s hand. Eventually, Appellant wrested the box cutter

away and left. (Investigators later spoke to people who lived in the

housing project, but could not find anyone who corroborated

Appellant’s story.)

     When the agent told Appellant that someone saw him on

Stevens Street on December 27, he changed his story, first saying

that he was on a parallel street and then admitting that he had been

on Stevens Street. When the agent told Appellant that they would

be examining Thigpen’s body for DNA that can be transferred by

touch, Appellant again changed his story, claiming that he had seen

Thigpen between 12:00 and 2:00 p.m. on December 27; she was on

the path behind the abandoned house and asked Appellant to make

sure nobody came by so she could urinate; he did so and then rubbed

                                 7
his hand on her clothed chest before he left. When he was asked if

there was any reason his DNA would be on Appellant’s thighs, he

again amended his account, claiming that in addition to touching

Thigpen’s chest, he stuck his hand down her pants and rubbed

between her thighs. Appellant claimed that he had been wearing a

black or dark brown sweatshirt and that he had not washed his

clothes.

     Phone records, surveillance videos, and witness accounts

showed that on December 27, Appellant called his friend Craig

Staten to ask for a ride first at 8:32 p.m. from a liquor store close to

where Thigpen’s body was found and again at 9:14 p.m. from a house

about 100 yards away from the body’s location. When Staten picked

Appellant up at around 9:22 p.m., he noticed that Appellant had

deep scratches and a bite mark on his hands. Appellant claimed that

he had fought a man with a bat. Appellant stayed overnight with

Staten. Appellant showered but put the same clothes back on. The

next day, Staten took Appellant to Appellant’s mother’s house.

When investigators searched his mother’s house, she told them that

                                   8
Appellant had been doing laundry right before he left for his

interview. In the dryer, there was a single outfit, which included a

grey sweatshirt. A fiber found on Thigpen’s body matched the fibers

found in that type of sweatshirt. In December 2014, while Appellant

was being held in jail, a guard heard him say, “I don’t have any

remorse about what I did.”

     Appellant did not testify at trial. His main defense was that

the law enforcement officers failed to fully investigate other

potential suspects because they rushed to judgment against him

based on his history with the victim.

     Appellant does not dispute the legal sufficiency of the evidence

supporting his conviction. Nevertheless, as is this Court’s usual

practice in murder cases, we have reviewed the record and conclude

that, when viewed in the light most favorable to the verdicts, the

evidence presented at trial and summarized above was sufficient to

authorize a rational jury to find Appellant guilty beyond a

reasonable doubt of malice murder. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). See also Vega v.

                                 9
State, 

 (

) (2009) (“‘It was for the jury to

determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence.’” (citation omitted)).

     2. At trial, Appellant objected to the admission into evidence of

a certified copy of his misdemeanor battery conviction resulting from

his September 2014 attack against Thigpen, on the ground that he

was not represented by counsel when he pled guilty.2 Appellant was

not able to provide any law supporting this objection, and the trial

court overruled it. Appellant now argues that the conviction was

inadmissible hearsay and that its admission also violated his right

to confront the witnesses against him guaranteed by the Sixth

Amendment to the United States Constitution. Appellant did not

make a hearsay or Confrontation Clause objection at trial, however,

so these claims are reviewed only for plain error. See OCGA § 24-1-

103 (d); Varner v. State, 

 (

) (2019).3


     2 The conviction exhibit included the accusation, the guilty plea form,

and the sentencing form.
      3 Because this case was tried in 2016, it was governed by Georgia’s new

Evidence Code, which took effect on January 1, 2013. See Ga. L. 2011, pp. 99,

                                     10
      To establish plain error, Appellant

      must point to an error that was not affirmatively waived,
      the error must have been clear and not open to reasonable
      dispute, the error must have affected his substantial
      rights, and the error must have seriously affected the
      fairness, integrity or public reputation of judicial
      proceedings.

Lupoe v. State, 

 (

) (2016) (citation and

punctuation omitted). Appellant has not established plain error

because he has not shown a clear error or that the alleged error

affected his substantial rights.

      (a) “‘An error cannot be plain where there is no controlling

authority on point.’” Jackson v. State, 

 (

)

(2019) (citation omitted). Appellant has identified no controlling




100 § 1. Although this Court has admonished attorneys to identify the
applicable Evidence Code and cite its pertinent provisions and case law
interpreting them, see, e.g., Davis v. State, 

 (

)
(2016), the attorneys for Appellant, the District Attorney’s office, and the
Attorney General’s office all filed briefs with useless and sometimes misleading
citations to cases decided under the old Evidence Code. We therefore ordered
the parties to file corrected briefs within ten days with citations to, and
analysis of, the applicable Evidence Code provisions and case law. The parties
did so, with some helpful results. The Attorney General, for example, now
recognizes that under the new Evidence Code, Appellant’s failure to raise his
Confrontation Clause argument did not waive appellate review entirely,
although it restricts review to plain error under OCGA § 24-1-103 (d).
                                      11
authority — nor have we found any — supporting his argument that

a conviction resulting from an uncounseled misdemeanor guilty plea

not resulting in imprisonment is inadmissible hearsay or

inadmissible under the Confrontation Clause. The two cases

Appellant cites for his position do not support his hearsay or

Confrontation Clause arguments — or even his more generalized

argument that his uncounseled guilty plea to a misdemeanor not

resulting in imprisonment should not be used against him. See

Nichols v. United States, 

 (

, 128

LE2d 745) (1994) (holding that an uncounseled guilty plea to a

misdemeanor can be used in sentencing for a subsequent offense,

even if that use increases the subsequent punishment to

imprisonment); Nash v. State, 

 (

)

(1999) (holding that to use a prior guilty plea for recidivist

sentencing, the State must prove, among other things, that the

defendant had counsel “in all felony cases and those misdemeanor

proceedings where imprisonment resulted”).

     Moreover, although this Court recently held that the

                               12
Confrontation Clause is violated when convictions of other people

are admitted against a defendant, we explained that “nothing about

this scenario can be read to suggest that a particular defendant’s

prior conviction could not be used against that same defendant in

his or her own case under the proper circumstances.” State v.

Jefferson, 

, 441-443 & n.6 (

) (2017)

(emphasis in original). Because there is no controlling authority

supporting Appellant’s argument, he has failed to show a clear error.

See Jackson, 

.

      (b) To show that an error affected his substantial rights,

Appellant must “make an affirmative showing that the error

probably did affect the outcome below.” Lupoe, 

(citation and punctuation omitted). The battery conviction was

cumulative of Johnson’s testimony recounting Thigpen’s description

of the September 2014 attack and the responding officer’s testimony

about Thigpen’s injuries.4 The only information the conviction added



      4 The responding officer’s report was also admitted into evidence, but it

was not read to the jury or given to the jury during deliberations.
                                      13
was that Appellant took responsibility and was punished for this

battery of Thigpen. In addition, the jury heard substantial testimony

about other prior difficulties between Appellant and Thigpen, to

which Appellant did not raise any objection. In light of the testimony

about the September 2014 battery as well as the other strong

evidence that Appellant killed Thigpen, including DNA and fiber

evidence and Appellant’s own shifting and unconvincing accounts,

the admission of his battery conviction did not probably affect the

trial’s outcome. See 

. See also Williams v. State, 

 (

) (2017) (holding in the context of

ordinary appellate review that the admission into evidence of the

appellant’s first offender plea record, even if error, was not harmful

because the jury heard extensive testimony about prior difficulties

between the appellant and the victim, the jury knew he had been

arrested for the incident resulting in the plea, and the evidence that

he killed the victim was overwhelming).

     3. (a) At trial, the State presented evidence of Appellant’s prior

assault of a former girlfriend. The former girlfriend testified that

                                  14
she dated Appellant and lived with him for about a year in 1999.

Four days after she kicked him out of the house, he came to her and

said that he wanted to talk. They walked down the street calmly

talking for a while; then Appellant suddenly grabbed her by the neck

and dragged her down into nearby bushes. He held one arm around

her neck in a choking manner and dragged her backward, making

her lie down. While Appellant choked her with one hand, he tried to

take off her clothes with the other. He stopped his attack when she

said that they had not really broken up. Appellant later pled guilty

to aggravated assault with the intent to rape, and a certified copy of

that conviction was admitted into evidence.

     Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a defendant, but such evidence may be

admissible for other purposes, including identity, intent, and motive

— the specific purposes for which the trial court admitted evidence

of Appellant’s attack against his former girlfriend. See OCGA § 24-

4-404 (b) (“Rule 404 (b)”). Under Rule 404 (b), evidence of an

extrinsic act is admissible if:

                                  15
     (1) the evidence is relevant to an issue in the case other
     than the defendant’s character; (2) the probative value of
     the evidence is not substantially outweighed by its undue
     prejudice; and (3) there is sufficient proof for a jury to find
     by a preponderance of the evidence that the defendant
     committed the other act.

Jackson, 

 (citation and punctuation omitted).

     (b) Of the three purposes for which evidence of the prior attack

was admitted, the prosecutor focused most in his closing argument

on the purpose of proving Appellant’s identity as the perpetrator in

the charged attack against Thigpen. The trial court did not abuse its

discretion by admitting the evidence for that purpose.

     As to the first element of the Rule 404 (b) test, “‘[w]hen

extrinsic offense evidence is introduced to prove identity, the

likeness of the offenses is the crucial consideration. The physical

similarity must be such that it marks the offenses as the handiwork

of the accused.’” Brooks v. State, 

 (

)

(2016) (citing United States v. Phaknikone, 

 (11th

Cir. 2010)). See also 

 (“‘A much greater degree of similarity

between the charged crime and the uncharged crime is required


                                   16
when the evidence of the other crime is introduced to prove identity

than when it is introduced to prove a state of mind.’” (quoting

United States v. Cardenas, 895 F2d 1338, 1342 (11th Cir. 1990)).5

      Here, the prior conduct and the charged offenses share several

significant similarities. In both incidents, the assailant dragged a

female victim off a walkway into nearby bushes, pulling her

backward and to the ground; choked her with his hand; and removed

or tried to remove her clothes. Appellant argues that these

similarities are characteristic of many attacks on women, rather

than being indicative of his handiwork. See, e.g., United States v.

Lail, 846 F2d 1299, 1301 (11th Cir. 1988) (explaining that certain

shared traits, such as the use of a handgun and lack of disguise, did

not help prove identity because they were traits common to many

bank robberies).

      But even if he were right, his argument overlooks a crucial


      5 “OCGA § 24-4-404 (b) is modeled on Federal Rule of Evidence 404 (b).

We therefore look to the decisions of the federal appellate courts, particularly
the decisions of the Eleventh Circuit, for guidance in construing and applying
the [Georgia] rule.” Strother v. State, 

 (

) (2019)
(footnote omitted).
                                      17
similarity — both victims were Appellant’s former girlfriends. And

although the charged crimes and the prior attack occurred 15 years

apart, each attack was committed after the victim’s relationship

with Appellant ended. See United States v. Grimmette, 

 (11th Cir. 2006) (explaining that to be admissible to

prove identity, prior crimes need not be identical “‘in every detail[,

b]ut they must possess a common feature or features that make it

very likely that the unknown perpetrator of the charged crime and

the known perpetrator of the uncharged crime are the same person’”

(citation omitted)). It is true that unlike in the prior attack, the

assailant in the crimes charged in this case also hit the victim in the

head and used not only his hand to choke her but also a ligature

(likely the tights removed from the victim). However, under all of

the circumstances, including the evidence that the prior victim

talked Appellant into stopping the attack against her, those

differences do not constitute major dissimilarities. See United States

v. Whatley, 

 (11th Cir. 2013) (considering

dissimilarities in evaluating whether prior act evidence was

                                  18
admissible to prove identity). See also Brooks, 

.

     Comparison of the two incidents indicates that “the possibility

is quite remote” that a person other than Appellant committed the

charged crimes of attacking one of Appellant’s ex-girlfriends in a

very similar way as his 1999 attack on another ex-girlfriend. United

States v. Miller, 959 F2d 1535, 1539 (11th Cir. 1992) (holding that

two drug deals had a sufficiently strong similarity to prove identity,

including that the supplier in both was called “Louis” and the

meeting place was the same residence). See also United States v.

Stubbins, 877 F2d 42, 44 (11th Cir. 1989) (holding that the

“sufficiently unusual and distinctive” feature that both drug offenses

happened at the same address made the prior offense relevant to

prove identity). Thus, the trial court could properly conclude that

evidence of the prior attack was relevant to prove identity.

     The second part of the Rule 404 (b) test invokes OCGA § 24-4-

403, which is designed to “‘exclude matter of scant or cumulative

probative force, dragged in by the heels for the sake of its prejudicial

effect.’” Kirby v. State, 

 (

) (2018)

                                  19
(citation omitted).6 The prior attack evidence had significant

probative value, given the similarities between the two incidents

and the State’s need to prove the identity of Thigpen’s killer to

overcome Appellant’s defense theory and the stories he gave the

police, which all asserted that he was not involved in Thigpen’s

murder. See Brannon v. State, 

 (

)

(2016); Miller, 959 F2d at 1540.

     The evidence that Appellant had assaulted another woman

was obviously prejudicial to him, but the trial court could reasonably

conclude that this prejudice did not substantially outweigh the

significant probative value of the prior attack. See Brannon, 

; Miller, 959 F2d at 1540. See also Anglin v. State, 

 (

) (2017) (explaining that although “evidence

of gang membership can be highly prejudicial,” “in a criminal trial,




     6 OCGA § 24-4-403 says:

           Relevant 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.
                                     20
inculpatory evidence is inherently prejudicial; ‘it is only when unfair

prejudice substantially outweighs probative value that the rule

permits exclusion.’” (citations omitted; emphasis in original)).

Additionally, the trial court instructed the jury both when the prior

act evidence was admitted and in the final jury charge that the jury

should not consider the prior act evidence to prove Appellant’s

character, but should consider it only to the extent that it was

relevant to show his identity, intent, and motive in the charged

crimes. See McWilliams v. State, 

 (

)

(2018) (“Any prejudicial impact of the extrinsic acts evidence was

mitigated when the trial court gave the jury specific instructions

about the limited purpose of the evidence.”).

     Finally, the former girlfriend’s testimony identifying Appellant

as her attacker and his subsequent conviction for aggravated assault

undeniably met the third element of the Rule 404 (b) test by

providing sufficient proof for the jury to find by a preponderance of

the evidence that Appellant committed the prior attack. For these

reasons, the trial court did not abuse its discretion in admitting this

                                  21
evidence to prove identity.7

      4. During closing argument, the prosecutor described

Appellant’s behavior toward Thigpen as “spik[ing] upwards to a

rape.” The prosecutor then acknowledged that the grand jury had

“no billed” the rape charge arising from the March 2014 incident and

that the State had to accept what the grand jury decided, but he

continued, “this rape happened.” He later described Appellant as a

person who had attacked and raped Thigpen before the murder.

Appellant’s trial counsel did not object to any of these statements.


      7 On appeal, the State primarily argues that evidence of the 1999 attack

was admissible to prove Appellant’s intent in this case. Evidence of the prior
assault may have been relevant for this purpose, but it was of very limited
probative value because the prosecutorial need for it was negligible (and it was
temporally remote). See Jackson, 

 (“Factors to be considered in
determining the probative value of other-act evidence offered to prove intent
include its overall similarity to the charged crime, its temporal remoteness,
and the prosecutorial need for it.”). There was no real dispute that whoever
beat and strangled Thigpen to death had the intent required for malice murder
and aggravated assault with an offensive weapon. See 

 (explaining that
there was no real prosecutorial need to prove intent when all of the evidence
indicated that the person who repeatedly fired a gun at the victim had the
requisite general intent to commit an assault with a deadly weapon); Kirby,

 (holding that there was “little if any prosecutorial need for
extrinsic evidence” to prove that the person who repeatedly stabbed the victim
had the requisite intent). See also Jackson, 

 n.12. Under the
circumstances of this case, however, we need not decide whether the evidence
that was properly admitted to prove identity was also admissible to prove
intent or motive. See Kirby, 

.
                                      22
At the motion for new trial hearing, trial counsel testified that he

did not recall the prosecutor’s focusing too much on the alleged rape

and that he did not object to the rape references because they fit in

with his theory of the case as a rush to judgment, showing that

“[e]verything this woman claimed about [Appellant] [the State]

would believe, . . . even to the point that they tried to have a case

indicted [when] they couldn’t even get it past the [g]rand [j]ury.” In

fact, in his own closing argument, trial counsel noted that Appellant

had been accused of raping Thigpen and kept in jail for six months

until the grand jury “no billed” the charge; counsel reminded the

jury that a police investigator had testified that it was unusual for

a grand jury not to indict.

     Appellant contends that his trial counsel provided ineffective

assistance by failing to object to the prosecutor’s comments

characterizing him as a rapist. “To prevail on this claim, [Appellant]

must show that his counsel’s performance was professionally

deficient and that, but for the deficiency, there is a reasonable

probability that the outcome of the trial would have been more

                                 23
favorable to him.” Cushenberry v. State, 

 (

) (2016). See also Strickland v. Washington, 

 (

, 80 LE2d 674) (1984). “Whether to object to a

particular part of a prosecutor’s closing argument is a tactical

decision, and counsel’s decision not to make an objection must be

patently unreasonable to rise to the level of deficient performance.”

Smith v. State, 

 (

) (2015) (citations

and punctuation omitted).

     Here, trial counsel’s decision not to object to the prosecutor’s

comments was not unreasonable. The comments referred to

evidence of the rape that had been admitted, so an objection likely

would have failed. See Blaine v. State, 

 (

) (2019) (explaining that “a prosecutor is granted wide latitude in

the conduct of closing argument” and “is entitled to emphasize the

evidence favorable to the State” (citation and punctuation omitted)).

And by acknowledging the grand jury’s refusal to indict Appellant

for the rape, the comments served as a reminder for the jury that

the State had brought an earlier, unsuccessful case against

                                 24
Appellant for an alleged attack on Thigpen. Counsel reasonably

concluded that this reminder helped support the defense theory that

law    enforcement      rushed     to        judgment   against   Appellant.

Accordingly, Appellant has failed to prove that his counsel was

deficient, and his claim of ineffective assistance of counsel fails. See

Cushenberry, 

 (“‘Failure to make the required showing

of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim.’” (citation omitted)). 8

      Judgment affirmed. All the Justices concur.




                    DECIDED OCTOBER 21, 2019.
     Murder. Thomas Superior Court. Before Judge Hardy.
     Conger & Smith, Gregory D. Smith, for appellant.
     Bradfield M. Shealy, District Attorney, James L. Prine II,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

      8 Appellant also contends in the heading of this enumeration that the

trial court erred by allowing the prosecutor’s statements, but he does not make
any argument on this point, and his failure to object at trial waived such a
claim. See Gates v. State, 

 (

) (2016).
                                        25
Smith, Senior Assistant Attorney General, Matthew B. Crowder,
Assistant Attorney General, for appellee.




                             26