FINAL COPY
295 Ga. 421

                    S14A0558. JOHNSON v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Donterrius Johnson was convicted of two counts of felony

murder and related offenses in connection with the beating deaths of two victims

in separate incidents in 2009. Johnson now appeals, challenging the sufficiency

of the evidence, the admission of his videotaped police interview, and the

propriety of his sentencing, and contending that his trial counsel rendered

ineffective assistance. We agree that Johnson was improperly sentenced on the

two felonies underlying his felony murder convictions and therefore vacate his

sentences on Counts 2 and 5. In all other respects, we affirm.1

      1
        The crimes were committed on August 29 and September 4, 2009. Johnson
was indicted by a Lowndes County grand jury in April 2011 for the felony murder,
aggravated assault, and robbery by force of Robert Crawford and for the felony
murder and armed robbery of Michael McCaskill. Johnson was also indicted for the
armed robbery of Willie Miller and for obstruction of a law enforcement officer.
Following a jury trial held in August 2011, Johnson was convicted on all counts
except that for the armed robbery of Miller, which was nolle prossed, and the
obstruction count, on which he was acquitted. Johnson was sentenced to life
imprisonment for each of the felony murders and to a 20-year term of imprisonment
for each of the other three felonies. Johnson filed a timely motion for new trial on
September 30, 2011, which was subsequently amended. Following a hearing held on
April 4, 2013, the trial court denied the motion for new trial on September 16, 2013.
Johnson filed his notice of appeal on October 14, 2013. His appeal was docketed to
      On August 29, 2009, Johnson and accomplice Corey Singleton

encountered victim Robert Crawford sitting on the front stoop of the Valdosta

boardinghouse in which he resided. Johnson and Singleton approached and

began talking to Crawford, and Singleton asked Crawford whether he wanted

to buy some crack cocaine. Singleton then hit Crawford in the face and dragged

him off the stoop into the front yard. Johnson began hitting and kicking

Crawford, while Singleton went through Crawford’s pockets, seized his wallet,

and went through its contents. Johnson and Singleton then ran away in different

directions. Police responding to the scene found Crawford lying face down in

the yard, unresponsive, with abrasions on his head and footprints on the back of

his shirt. A cell phone holder and other items appearing to have come from a

wallet were found close by. Crawford died twelve days later from complications

of blunt force head trauma.

      On September 4, 2009, Johnson and Singleton met at a bar, outside of

which they were approached by victim Michael McCaskill, who wanted to buy

crack cocaine. Singleton walked with McCaskill beneath a nearby overpass,


the January 2014 term of this Court and was thereafter submitted for decision on the
briefs.
                                         2
while Johnson and several other men waited for a signal from Singleton.

Singleton hit McCaskill, knocking him to the ground, and the others rushed to

join in. Johnson struck McCaskill with a pair of brass knuckles, and Singleton

went through the victim’s pockets, while the others continued hitting and

kicking him. One of the other men, Willie Rowe, ran over McCaskill’s neck

with a bicycle. Singleton urinated on the unconscious victim, and the men then

fled. When McCaskill was found, he was unconscious and covered in ant bites,

with severe injuries to his head, face, and ear, and a bicycle track across his

neck. Police found his wallet nearby. McCaskill, who suffered an anoxic brain

injury, died after spending several months in a nursing home in a vegetative

state.

         Detectives interviewed Singleton, who admitted that he and Johnson had

been involved in the attack on McCaskill and that Rowe had ridden a bicycle

over his neck. Singleton also implicated Johnson in the attack on Crawford.

Detectives then went to Johnson’s aunt’s house in an attempt to interview

Johnson, who lived with his aunt intermittently. Alerted to their arrival,

Johnson exited from the rear of the house and ran away. The aunt gave consent

to a search of the home, and the detectives found a pair of brass knuckles under

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a cushion on the sofa on which Johnson had been sleeping. They also seized a

pair of shoes from that same room. On the brass knuckles was blood that was

later matched to that of McCaskill. The shoes’ tread matched the footprint on

the back of Crawford’s shirt. In a post-arrest police interview, which was

recorded and played for the jury, Johnson admitted his involvement in the

crimes against both Crawford and McCaskill.

      1.   Despite Johnson’s contention to the contrary, the evidence as

summarized above was sufficient to enable a rational trier of fact to conclude

beyond a reasonable doubt that Johnson was guilty of the crimes of which he

was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)

(1979). Johnson asserts that the State failed to prove the requisite causation

necessary to sustain each of his felony murder convictions. Specifically,

Johnson points to evidence that victim Crawford’s death may have resulted in

part from the decision of his medical team not to perform surgery to mitigate his

injuries. As to victim McCaskill, Johnson highlights evidence suggesting that

he received substandard treatment while in the nursing home. However, even

construing the evidence so as to find that these other factors contributed to the

victims’ deaths, the fact remains that the violent attacks Johnson perpetrated

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against both victims constituted the proximate cause of both of their deaths. See

Davis v. State, 290 Ga. 757, 760 (4) (725 SE2d 280) (2012) (proximate

causation established by evidence that underlying felony “‘directly and

materially contributed to the happening of a subsequent accruing immediate

cause of the death’”); see also Larkin v. State, 247 Ga. 586 (1) (278 SE2d 365)

(1981) (knife attack by defendant was proximate cause of victim’s death, where

victim died from complications of surgery performed on knife wound); Wilson

v. State, 190 Ga. 824 (2) (10 SE2d 861) (1940) (assault by defendant was

proximate cause of victim’s death, where victim died nine months after assault

from infection that was secondary to the wounds sustained in the assault).

      2. Johnson next contends that his confession of involvement in both

crimes was improperly induced by a “hope of benefit.” See former OCGA § 24-

3-50 (to be admissible, a confession must have been made “voluntarily, without

being induced by another by the slightest hope of benefit or remotest fear of

injury”).2 Finding Johnson’s statement to have been made voluntarily, the trial




      2
       Under the new Georgia Evidence Code, effective for trials held on or after
January 1, 2013, this language is now codified at OCGA § 24-8-824.
                                        5
court rejected this argument at a pre-trial Jackson v. Denno3 hearing and again

when the objection was renewed at trial.

      Under Georgia law, only voluntary incriminating statements are
      admissible against the accused at trial, and the State has the burden
      of proving the voluntariness of a confession by a preponderance of
      the evidence. [Former] OCGA § 24-3-50 requires that an admissible
      confession must have been made voluntarily, without being induced
      by another by the slightest hope of benefit or remotest fear of
      injury. The promise of a benefit that will render a confession
      involuntary under [former] OCGA § 24-3-50 must relate to the
      charge or sentence facing the suspect.

(Citations and punctuation omitted.) Foster v. State, 283 Ga. 484, 485 (2) (660

SE2d 521) (2008).        Whether a statement was made voluntarily is to be

determined by assessing the totality of the circumstances. Vergara v. State, 283

Ga. 175 (1) (657 SE2d 863) (2008). “Where the facts surrounding a police

interview are undisputed because the recorded interview is part of the appellate

record, our review of the trial court's admissibility ruling is de novo.” Wilson

v. State, 293 Ga. 508, 510 (2) (748 SE2d 385) (2013).

      On the day of his arrest on September 11, 2009, Johnson was interviewed

by Valdosta police detective Steven Thompson. The recording of the interview



      3
          Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
                                         6
reflects that the detective advised Johnson of his Miranda4 rights, which Johnson

then knowingly and voluntarily waived, as reflected on a signed waiver form.

The interview began with Detective Thompson telling Johnson he wanted to

hear his side of the story regarding several recent attacks, that he had already

spoken with Corey Singleton and Willie Rowe, and that one of the victims had

died. Johnson initially denied any involvement in the attacks. After Johnson

admitted to owning brass knuckles, Detective Thompson told Johnson that a pair

of brass knuckles had been seized from his aunt’s home and that a victim’s DNA

had been found on them; he also falsely claimed that Johnson’s DNA was

detected on them. Detective Thompson then warned Johnson not to lie and deny

his presence at the attacks because there was evidence he was there, said he

wanted to hear Johnson’s version of events, and further warned: “I can get up

and walk out this door and send your a** to the county jail and change this

charge from aggravated assault to a f**ing murder charge.” Johnson then began

backpedaling, first admitting his presence during the attacks, and ultimately

admitting his participation and recounting the events leading to both assaults.



      4
          Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
                                         7
      Johnson contends that Detective Thompson’s statements implied that, if

Johnson did not confess, he would be charged with murder, and that such an

implication amounted to an improper hope of benefit, i.e., the promise of a

lighter punishment if Johnson did confess.               We disagree with this

characterization. Detective Thompson’s statement that Johnson could be

charged with murder was a true statement that emphasized the gravity of the

situation Johnson faced. See Sosniak v. State, 287 Ga. 279, 288-289 (1) (C)

(695 SE2d 604) (2010) (officer’s remark that prosecutor was “looking at a death

penalty case” was merely an explanation of the seriousness of defendant’s

situation); Preston v. State, 282 Ga. 210, 212 (2) (647 SE2d 260) (2007)

(officer’s statements regarding penalties for murder and fact that charging

decisions are informed by recommendations from police did not offer “hope of

benefit” but rather merely explained the seriousness of defendant’s situation).

The admonition not to lie was not improper, as it is well established that

exhortations to tell the truth do not constitute the giving of a hope of benefit that

renders a confession involuntary. Mangrum v. State, 285 Ga. 676 (2) (681 SE2d

130) (2009); State v. Roberts, 273 Ga. 514 (3) (543 SE2d 725) (2001),

overruled on other grounds by Vergara v. State, 283 Ga. 175 (1) (657 SE2d 863)

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(2010). At no time did Detective Thompson indicate that a confession would

result in lesser charges; rather, he merely suggested that Johnson would be well

served by offering his version of events as a means of justifying or mitigating

his role in the assaults. See Pittman v. State, 277 Ga. 475 (2) (592 SE2d 72)

(2004) (officer’s suggestions that defendant had not intended to kill victim did

not offer improper hope of benefit). Cf. Canty v. State, 286 Ga. 608 (690 SE2d

609) (2010) (confession was induced by improper hope of benefit where

defendant confessed only after being told that admitting to multiple charges at

once could result in a shorter sentence). Finally, the detective’s false claim that

Johnson’s DNA was found on the brass knuckles does not affect the

admissibility of the confession, as deception by interrogating officers does not

render a confession involuntary unless it is “calculated to procure an untrue

statement.” (Citation and punctuation omitted.) DeYoung v. State, 268 Ga.

780, 789 (8) (493 SE2d 157) (1997). We therefore conclude that Johnson’s

statement was voluntarily given and properly admitted at trial.

      3. Johnson next contends that his trial counsel rendered ineffective

assistance. To establish ineffective assistance of counsel, a defendant must

show that his trial counsel’s performance was professionally deficient and that

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but for such deficient performance there is a reasonable probability that the

result of the trial would have been different. Strickland v. Washington, 466 U.

S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355

(3) (689 SE2d 280) (2010). To prove deficient performance, one must show

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 (3) (745 SE2d 637) (2013). Courts

reviewing ineffectiveness claims must apply a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional performance. Id.

Thus, decisions regarding trial tactics and strategy may form the basis for an

ineffectiveness claim only if they were so patently unreasonable that no

competent attorney would have followed such a course. Id. If the defendant

fails to satisfy either the “deficient performance” or the “prejudice” prong of the

Strickland test, this Court is not required to examine the other. See Green v.

State, 291 Ga. 579 (2) (731 SE2d 359) (2012).

      At the new trial hearing, Johnson’s trial counsel testified that the defense

strategy going into trial was for Johnson to take the stand and testify that he had

been at home when the crimes were committed, that he knew the details of the

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crimes only from having heard about them from friends, and that his confession

was coerced out of fear. Counsel testified that he had numerous discussions

with Johnson about this strategy and prepared him extensively for his trial

testimony. At trial, however, once the prosecution had presented its case,

Johnson was too shaken and nervous to testify, and thus, unexpectedly, elected

not to testify.

      Johnson now faults trial counsel for various alleged shortcomings. First,

he cites the failure to present any witnesses on Johnson’s behalf, including an

alleged alibi witness. The testimony from the new trial hearing reflects that

counsel made reasonable attempts, without success, to locate the unnamed

alleged alibi witness. In addition, counsel had intended and was prepared to call

Johnson’s sisters as character witnesses, as well as Johnson’s aunt. However,

when Johnson opted not to testify, counsel decided not to call any witnesses,

believing character witnesses would be unhelpful and fearing possible

inconsistencies in the aunt’s testimony. Insofar as counsel’s conduct regarding

these issues was diligent and his decisions were reasonable in light of the

circumstances, Johnson has failed to show deficient performance in this regard.

      Johnson next contends that trial counsel rendered ineffective assistance in

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failing to object when one of the detectives on the case testified to statements

made by Johnson’s aunt confirming that Johnson had been living at her home

and sleeping on the sofa where the brass knuckles were found. Even assuming

arguendo that the failure to object constituted deficient performance, Johnson

cannot establish prejudice, insofar as the officer testified that, when he arrived

at the aunt’s house, he saw Johnson sitting on the sofa before Johnson, upon

seeing the officer, exited through the rear of the house and fled. Because there

was admissible evidence establishing Johnson’s presence in the room of his

aunt’s home where the brass knuckles and shoes linked with the crimes were

found, the hearsay testimony on this point was cumulative and its admission did

not in reasonable probability affect the outcome of the trial.

      Johnson also faults trial counsel for failing to elicit testimony regarding

the size of the shoes found at Johnson’s aunt’s house, in furtherance of a theory

that the shoes found would not have fit Johnson’s feet and thus were not his.

Counsel testified that he had intended to explore this theory when Johnson

testified; did not want to “tip off” the State to this aspect of the defense during

its case-in-chief; and was then prevented from pursuing this defense when

Johnson decided not to testify. We find that counsel’s strategy in this regard

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was reasonable; further, even with evidence that the shoes did not fit Johnson,

the fact that the shoes were in Johnson’s possession nonetheless linked him to

the crimes, and thus, particularly in light of all the other inculpatory evidence,

there was no prejudice from the failure to elicit this particular evidence.

      We find no deficient performance or prejudice in counsel’s failure to

retain an expert witness on false confessions, given counsel’s intended strategy

of calling Johnson himself to testify that he was coerced into confessing, and

Johnson’s failure to make any proffer as to what testimony such an expert might

have given. Likewise, there was no deficiency or prejudice in counsel’s failure

to adduce expert testimony regarding the cause of death of either victim; as

Johnson’s counsel acknowledged at the motion for new trial hearing, trial

counsel conducted a thorough cross-examination of both medical examiners

regarding the possible causes of death of each victim, focusing on the decision

not to perform surgery on Crawford and the substandard treatment rendered to

McCaskill at the nursing home as factors in the deaths. In addition, contrary to

Johnson’s contention, counsel did not render ineffective assistance in failing to

request a specific jury instruction on the required nexus between a defendant’s

act and the victim’s death; counsel reasonably believed that the medical

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examiners’ cross-examinations, together with the trial court’s charge on felony

murder, were sufficient to highlight the issue of causation.

      4. Johnson contends, and the State agrees, that the trial court erred in

failing to merge Count 2 (aggravated assault of Crawford) into Count 1 (felony

murder predicated on that aggravated assault) and Count 5 (armed robbery of

McCaskill) into Count 4 (felony murder predicated on that armed robbery). See

Sumrall v. State, 264 Ga. 148 (2) (442 SE2d 246) (1994). Accordingly,

Johnson’s convictions and sentences on Counts 2 and 5 must be vacated.

      Judgment affirmed in part and vacated in part. All the Justices concur.



                           Decided June 30, 2014.

      Murder. Lowndes Superior Court. Before Judge Tunison.

      Anderson & Bradley, Nancy L. Anderson, for appellant.

      J. David Miller, District Attorney, Jessica W. Clark, Tracy K. Chapman,
Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Meghan H. Hobbs, Assistant Attorney General, for appellee.




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