State v. Lane

FINAL COPY

                   S19A1424. THE STATE v. LANE.


      PETERSON, Justice.

      Antiwan Lane was convicted of malice murder and other

charges for procuring the murder of Ivan Perez.1 The trial court

granted Lane a new trial based on a host of grounds, including

evidentiary errors and ineffective assistance of counsel. The State

appeals, arguing that none of the claimed errors by counsel or the



      1 Perez was shot on December 26, 2011. On December 20, 2012, a DeKalb

County grand jury returned an indictment against Lane and Kevin Stallworth.
The indictment charged both men with malice murder, felony murder
predicated on aggravated assault, aggravated assault, and possession of a
firearm during the commission of a felony; Lane additionally was charged with
criminal solicitation, and Stallworth was charged with possession of a firearm
by a convicted felon and a second felony murder count predicated on that
offense. In January 2013, Stallworth pleaded guilty to manslaughter and
aggravated assault. Lane was found guilty of all charges at an April 2013 jury
trial. On April 8, 2013, the trial court sentenced Lane to life without parole for
malice murder plus five years in prison (consecutive) for possession of a firearm
during the commission of a felony and five years in prison (consecutive) for
criminal solicitation. Lane filed a motion for new trial (under an old indictment
number) on April 25, 2013; the motion was amended on July 30, 2018.
Following an evidentiary hearing, the trial court granted the motion in an
order entered on April 25, 2019. The State filed a timely notice of appeal, and
the case was docketed to this Court’s August 2019 term and orally argued on
January 14, 2020.
trial court resulted in sufficient prejudice or harm to require

reversal. Given the large number of errors at issue, we first

reconsider and overrule our prior precedent that precluded full

consideration of the cumulative effect of multiple errors at trial. We

then conclude that counsel was ineffective in at least two respects

and the trial court made at least one key evidentiary error in

overruling a defense objection. Finally, given the combined

prejudicial effect of multiple errors by counsel and the trial court,

we affirm the grant of a new trial.

      The evidence presented at trial showed the following.2 Perez

was shot and killed on December 26, 2011, outside of a DeKalb

County apartment complex where he was visiting his cousin, Hector

Gonzalez. Testifying at Lane’s trial, Kevin Stallworth admitted that

he shot Perez, claiming it was a botched murder-for-hire procured

by Lane. Stallworth was the State’s primary witness, and critical




      2 Because this is the State’s appeal from the grant of a new trial, and the

primary issue before us is the effect of various errors at trial, we do not set
forth the evidence in the light most favorable to the jury’s verdicts. See State
v. Denson, 

 (1) n.1 (

) (2019).
                                       2
evidence used to corroborate his testimony was hearsay, much of

which the defense did not object to.

     Stallworth testified that Lane called him shortly after

December 15, 2011, wanting to meet. Stallworth said he was

expecting Lane’s call based on information that he had received from

Stallworth’s cousin, Eddie Davis. Stallworth said Lane hired him to

kill Gonzalez for $10,000. Stallworth claimed that Lane showed him

Gonzalez’s Dunwoody apartment, truck, and photo, and gave

Stallworth a gun.

     Stallworth testified that, on the day of the shooting, he received

a ride from Albert Rose to meet with Lane, who provided a BMW for

Stallworth to drive. Stallworth then drove to the apartment complex

in Dunwoody, where he shot Perez. After the shooting, Stallworth

testified, he drove the BMW toward College Park and left it at an

apartment complex, then was picked up by Lane. Stallworth

testified he and Lane then had “a little scuffle” over payment,

resulting in scratches on Stallworth’s face, when Lane told him he



                                  3
had shot the wrong person.3 Stallworth testified that he and Lane

met up the following day at Davis’s home.

      Stallworth’s girlfriend, Brittany Thompson, testified that, at

some point around Thanksgiving, Stallworth told her that he “was

going to hit a lick” and would get $5,000 in return. Thompson

testified over the defense’s hearsay objection that, on the date of the

murder, Stallworth told her, “I’m going to do it. He want me to do it,

I’m going to kill him, I’m going to get the money.” Thompson also

testified over objection that Stallworth told her after the murder

that Lane procured the car for him but did not pay him because he

shot the wrong person. She testified that she saw scratches on

Stallworth’s face that night. She also testified that she saw Lane and

Stallworth together at Stallworth’s cousin’s home a couple of days

after the shooting and overheard Lane saying that Stallworth “was

all good” because a witness had given a description that did not

match Stallworth.



      3 Stallworth said Lane gave him only $100 — purportedly to rent a hotel

room in order to be apart from Davis, Stallworth’s cousin.
                                      4
     In addition to Thompson, the State also presented the

testimony of Rose, who testified that he gave Stallworth a ride to a

hotel the day of the shooting. Lane’s girlfriend, Linda Yun, testified

that she found $15,000 cash in a plastic bag in her sofa shortly after

Lane was arrested.

     The lead investigator, Detective Delima, testified extensively

at trial. He testified at various points about statements Stallworth

made to him. Detective Delima testified without objection that he

had an informant in Clayton County who gave him information

consistent with the shooting being a murder-for-hire. Detective

Delima also testified without objection that other witnesses stated

that Stallworth did not have a car and was known as “K.” And

Detective Delima testified over objection by the defense that Davis

“confirm[ed]” Stallworth’s statement that Lane initially tried to hire

Davis to kill Gonzalez.

     The State also tried to corroborate Stallworth’s testimony

through cell phone data. Cell phone records showed communications

between Stallworth’s phone and two separate phone numbers listed

                                  5
in Stallworth’s cell phone contacts as “D” and “Punkin D.” Talking

to Detective Delima, Stallworth called Lane “D” and confirmed that

“Punkin D” was the same person; Stallworth testified that Lane

used to go by the name “Punkin D” and that he just put “D” in his

contacts by a new phone number Lane gave him. Other witnesses

testified that Lane went by “Punkin” or “Punkin D.” Based on a prior

incident report, Detective Delima confirmed that the “Punkin D”

phone number was associated with Lane, who had the corresponding

phone in his possession when he was arrested. But the “D” phone, a

prepaid cell phone, was never recovered, and the cellular service

provider was unable to provide subscriber information for that

phone.

     The records showed that someone used the “Punkin D” phone

associated with Lane to call Stallworth on December 17, 2011, and

again on December 19. The following day, six days before the

murder, Stallworth sent that phone text messages saying, “Bra u got

da dollar” and “Im on da way.” Stallworth’s cell phone number had

18 calls between it and the “Punkin D” phone from December 17 to

                                 6
December 20, 2011, and 151 calls between Stallworth’s number and

the “D” phone from December 20 until December 26, 2011, the day

of the shooting. Cell phone data also showed that Stallworth and

someone carrying Lane’s “Punkin D” phone both arrived in College

Park at 1:47 p.m. on the day of the shooting, then Stallworth moved

toward Dunwoody at 3:00 p.m., while the “Punkin D” phone moved

toward Norcross (where Lane lived) at 3:36 p.m.4 Although

Stallworth lost his cell phone at the scene of the shooting, cell site

data showed that, at 8:17 on the night of the shooting, the “Punkin

D” phone was pinging off a tower in College Park near the complex

where the BMW was left, stayed there until 11:39 p.m., and was

pinging near Davis’s home the next day.

     The State claimed that Lane had a motive to kill Gonzalez

because Gonzalez and his wife, Sophia, were interfering with Lane’s

relationship with Yun, who was friends with Sophia. The State

presented evidence that Lane and Sophia had some sort of “dispute”

at the Gonzalezes’ apartment complex in February 2011, in which


     4 A 911 call reporting the shooting was placed at 3:42 p.m.

                                     7
Lane (1) grabbed her by her jacket; (2) argued with her, Gonzalez,

and Gonzalez’s brother; and (3) fired a shot into the air. The jury

heard about another incident involving Lane, the Gonzalezes, and

Yun at a nightclub that year, in which Lane insisted on searching

the Gonzalezes’ apartment to see if a man was there for Yun, as well

as an incident in which Lane once challenged Gonzalez to a fight.

And the jury heard that the Gonzalezes had sought multiple

protective orders against Lane, including one after the murder.

After the Gonzalezes filed for the last protective order, Gonzalez

testified, their home was “shot up” by someone Gonzalez believed

was sent by Lane. Gonzalez also testified that he had some

“concerns” about someone following his wife.

     In addition to the evidence of difficulties between Lane and the

Gonzalezes, the State also introduced testimony by Joseph Harris,

the father of one of Yun’s children, who claimed that someone “shot

up” his car while he was in it at some point after Lane threatened to

kill Harris. Harris testified without objection that the person who

shot at his car was wearing a mask but was about the same height

                                 8
as Lane.

     The trial court granted Lane’s motion for new trial. The trial

court found that trial counsel was ineffective for, among other

reasons, (1) failing to cross-examine Detective Delima with evidence

that he testified falsely about Davis’s statements to him, and (2)

failing to object to hearsay and bolstering testimony by Detective

Delima. In addition, the trial court found that it had erred in various

respects, including in admitting Thompson’s testimony as to

statements by Stallworth. The State has appealed the trial court’s

grant of the motion for new trial.

     1.    Here, the trial court found numerous distinct instances of

deficient performance by trial counsel and error by the trial court,

and we ultimately agree as to at least two instances of deficient

performance by counsel and one trial court error. To date, we have

considered the cumulative effect of certain types of errors, in

particular counsel’s errors that amount to deficient performance —

because ineffective assistance of counsel is a federal constitutional

claim, and the United States Supreme Court has told us that we

                                     9
must. See Strickland v. Washington, 

 (

, 80 LE2d 674) (1984) (explaining that reversal on ineffective

assistance of counsel grounds “requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial”

(emphasis added)). But we have said repeatedly that “this State does

not recognize the cumulative error rule” — meaning that we do not

consider the collective prejudicial effect of multiple errors by the

trial court, or the collective prejudicial effect of trial court error and

ineffective assistance of counsel. See, e.g., Grant v. State, 

 (5) (h) (

) (2019); Bridges v. State, 

 (9) (

) (1997). Given that we agree that trial counsel

here was deficient in at least two distinct respects, and that the trial

court committed at least one evidentiary error, we consider whether

to change our approach to cumulative error. Unable to identify any

legal principle — let alone a compelling, reasoned explanation —

behind our existing rule, and finding compelling case law from other

jurisdictions endorsing cumulative error review, we abandon this

prior rule and hold that Georgia courts considering whether a

                                   10
criminal defendant is entitled to a new trial should consider

collectively the prejudicial effect of trial court errors and any

deficient performance by counsel — at least where those errors by

the court and counsel involve evidentiary issues.

     It appears that the Georgia rule traces back to a civil case that

could not have held anything about the proper standard for granting

a new trial in a criminal case. See Hess Oil & Chem. Corp. v. Nash,

 (

) (1970) (“Any error shown upon the

record must stand or fall on its own merits and is not aided by the

accumulative effect of other claims of error.” (citation and

punctuation omitted)), quoted in Haas v. State, 

 (8) (

) (1978). The decision in that civil case turned

primarily on this Court’s conclusion that the Court of Appeals had

erred in considering a cumulative error claim that was not raised by

the appellant. To the extent that our decision in Hess Oil stands for

the proposition that the cumulative effect of various errors may not

be considered, it relied on nothing but an Ohio civil case that since

has been overruled. See Nicholas v. Yellow Cab Co., 

,

                                 11
286 (Ohio Ct. App. 1962), overruled by Daniels v. Northcoast

Anesthesia Providers, Inc., 

 (Ohio Ct. App. 2018).

And the prior Ohio rule appears to have been based on the notion

that “[t]here is no legal way to add up the separate effects” of

multiple trial court errors. See Richlin v. Gooding Amusement Co.,

 (Ohio Ct. App. 1960). But although consideration

of the combined prejudicial effects of different types of errors may

sometimes be more challenging than considering errors in isolation,

it certainly is not impossible. See, e.g., United States v. Adams, 

 (6th Cir. 2013) (concluding that combined

prejudice of various different evidentiary errors and trial court’s

handling of issues related to jury’s use of transcripts of audio

recordings necessitated a new trial); United States v. Al-Moayad,

 (2d Cir. 2008) (vacating convictions based on

cumulative effect of various evidentiary errors, as well as trial

court’s questionable handling of jury instruction issue); United

States v. Hands, 

 (11th Cir. 1999) (concluding

that improper admission of evidence was not harmless given the

                                 12
nature of the government’s case and additional prejudice created by

misconduct by prosecutor in closing argument).

     Indeed, what seems particularly difficult, if not impossible, is

determining whether a criminal defendant’s rights are affected in a

material way by a trial court error or deficient performance by

counsel without considering what evidence was properly before the

trier of fact, along with any related jury instructions and arguments

by counsel. For example, we affirm convictions despite an erroneous

evidentiary ruling where the State shows that it is “highly probable

that the error did not contribute to the verdict.” Bannister v. State,

 (5) (b) (

) (2019) (citation and

punctuation omitted). And part of that inquiry involves the strength

of the evidence against the defendant. See Williams v. State, 

 (3) (

) (2017).

     It would make no sense to say that one trial court error in

admitting certain evidence was harmless given the strength of other

evidence that was improperly admitted, then say that the error in

admitting the second piece of evidence was harmless given the

                                 13
strength of the first improper evidence. Indeed, weighing prejudice

cumulatively is simply a natural implication of the harmless error

doctrine:

           The cumulative effect of two or more individually
      harmless errors has the potential to prejudice a defendant
      to the same extent as a single reversible error. The
      purpose of a cumulative-error analysis is to address that
      possibility. Such an analysis is an extension of the
      harmless-error rule, which is used to determine whether
      an individual error requires reversal.
United States v. Rivera, 900 F2d 1462, 1469 (10th Cir. 1990)

(citation omitted).5

      The United States Supreme Court has told us explicitly that

we must consider prejudice collectively in the context of ineffective

assistance of counsel and Brady6 prosecutorial misconduct claims.

See Kyles v. Whitley, 

 (

, 131 LE2d

490) (1995) (explaining Brady materiality is defined “in terms of



      5 Of course, when we consider the legal sufficiency of the evidence under

Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979), “we
consider all of the evidence presented at trial, without regard to whether some
of that evidence might have been improperly admitted.” Virger v. State, 

 (2) n.3 (

) (2019) (citation and punctuation omitted).
We do not mean to suggest otherwise here.
      6 Brady v. Maryland, 

 (

, 10 LE2d 215) (1963).

                                      14
suppressed evidence considered collectively, not item by item”);

Strickland, 

; Schofield v. Holsey, 

(II) n.1 (

) (2007) (relying on Strickland language to

disapprove Court of Appeals holdings that cumulative effect of

counsel’s errors should not be considered). And — although not

binding on our consideration of nonconstitutional errors — the

authority from the United States Supreme Court appears to favor a

cumulative error approach even in other contexts. See Taylor v.

Kentucky, 

 (

, 56 LE2d 468) (1978)

(considering defendant’s argument about trial court’s refusal to give

requested instruction on presumption of innocence in the light of

questionable closing argument by prosecutor); Chambers v.

Mississippi, 

, 290 n.3, 298 (

, 35 LE2d 297)

(1973) (considering harm caused by trial court’s error in refusing to

treat witness as adverse to the defendant in conjunction with trial

court’s refusal to permit defendant to call other witnesses); Berger

v. United States, 

 (

, 79 LE 1314) (1935)

(considering “probable cumulative effect” of “persistent” misconduct

                                 15
by prosecutor).

     All of the United States Courts of Appeals explicitly consider

the cumulative prejudice of multiple errors at trial. See United

States v. Peña-Santo, 

 (1st Cir. 2015); Al-Moayad,

; United States v. Bailey-Snyder, 

(3rd Cir. 2019); United States v. Hager, 

 (4th Cir.

2013); United States v. Labarbera, 581 F2d 107, 110 (5th Cir. 1978);

Adams, 

; United States v. Marchan, 

(7th Cir. 2019); United States v. Anderson, 

 (8th

Cir. 2015); United States v. Frederick, 

 (9th Cir.

1996); Harmon v. Sharp, 

, 1083 (10th Cir. 2019);

Hands, 

; United States v. Brown, 

(D.C. Cir. 2007).

     The approach of the federal courts is instructive here given

that they have a similar baseline harmless error doctrine. And our

sister states are in accord. See, e.g., Ex parte Woods, 789 S2d 941,

942 n.1 (Ala. 2001) (recognizing cumulative error approach based on

state statute providing no new trial may be granted unless it should

                                16
appear that the error complained of has “probably injuriously

affected substantial rights” (citation and punctuation omitted));

State v. Hester, 

 (Tenn. 2010) (recognizing

cumulative error approach based on federal and state constitutional

“protection of the right to a fair trial”); Hurst v. State, 18 S3d 975,

1015 (Fla. 2009) (“Where multiple errors are found, even if deemed

harmless individually, the cumulative effect of such errors may deny

to defendant the fair and impartial trial that is the inalienable right

of all litigants.” (citations and punctuation omitted)).

     To its credit, the State candidly has conceded that there is no

reason other than stare decisis to retain our current rule. Of course,

pursuant to that doctrine, “courts generally stand by their prior

decisions, because it promotes the evenhanded, predictable, and

consistent development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and perceived

integrity of the judicial process.” Olevik v. State, 

 (2)

(c) (iv) (

) (2017) (citation and punctuation omitted). But

stare decisis “is not an inexorable command.” 

 “To that end, we

                                   17
have developed a test that considers the age of precedent, the

reliance interests at stake, the workability of the decision, and, most

importantly, the soundness of its reasoning.” 

 (2) (c) (iv)

(citation and punctuation omitted).

     Here, as explained above, there is essentially no good

reasoning for the current rule. Although the rule has been employed

by Georgia appellate courts for more than 40 years, the State has

articulated no sense in which it has acted in reliance on that rule,

and it is difficult to imagine circumstances in which such reliance

arises. Finally, to the extent that our existing rule is easier to apply,

that is insufficient reason to retain it. We therefore overrule our

prior decisions and those of the Court of Appeals that hold that the

prejudicial effect of multiple trial court errors may not be considered

cumulatively in determining whether a criminal defendant is

entitled to a new trial, and we disapprove any decisions with

language to that effect; those cases are listed in the Appendix to this




                                   18
opinion.7 We hold that the proper approach instead is to consider

collectively the prejudicial effect, if any, of trial court errors, along

with the prejudice caused by any deficient performance of counsel.

      We note that the only trial court error and deficiencies of

counsel that we analyze here involve evidentiary issues. Some other

types of error may not allow aggregation by their nature, but that

question is not presented here. If a defendant in a future case seeks

to argue to the reviewing court that he is entitled to a new trial based

on the cumulative effect of errors outside of the evidentiary context,

he would do well to explain why the approach that we adopt here

should be extended beyond the evidentiary context. And even in the

evidentiary context, a defendant who wishes to take advantage of

the rule that we adopt today should explain to the reviewing court

just how he was prejudiced by the cumulative effect of multiple


      7 Although the list of cases in the Appendix is rather long, we note that

in many of these cases the rule that we adopt today would have made no
difference in the outcomes of the cases. See, e.g., Grant, 

 (5) (h)
(rejecting appellant’s claim that he was prejudiced by the combined errors of
the trial court and circumstantial evidence against him on the basis that “this
State does not recognize the cumulative error rule in that context,” despite
already having rejected all of the appellant’s individual claims of trial court
error).
                                       19
errors.

     2.   Bearing in mind the framework of cumulative harm and

prejudice we have adopted here, we next consider the State’s

argument that the trial court erred in granting a new trial based on

ineffective assistance of counsel. We conclude that the trial court

properly found that trial counsel performed deficiently in at least

two respects.

     We review de novo a trial court’s grant of a new trial on a

special ground involving a question of law. O’Neal v. State, 

 (

) (2009). We defer to a trial court’s factual

findings in considering a claim of ineffectiveness of counsel,

however, unless clearly erroneous. Smith v. State, 

(2) (

) (2015). To prevail on a claim of ineffective

assistance of counsel, Lane must show both that his trial counsel’s

performance was deficient and that this deficiency prejudiced his

defense. Strickland, 

. “To establish deficient

performance, an appellant must overcome the strong presumption

that his . . . counsel’s conduct falls within the broad range of

                                 20
reasonable professional conduct and show that his counsel

performed in an objectively unreasonable way” in the light of all of

the circumstances. Smith, 

 (2).

     (a) The State argues that the trial court erred in finding that

counsel performed deficiently for failing to cross-examine Detective

Delima with evidence that he testified falsely about Davis’s

statements to him.8 As noted above, Detective Delima testified that

Davis “confirm[ed]” Stallworth’s statement that Lane initially tried

to hire Davis to kill Gonzalez. The trial court found that this

testimony was false, given that discovery provided to the defense

included Detective Delima’s report that showed that Davis expressly

denied to Delima that he had ever been recruited by Lane to kill

anyone. We cannot say that this finding is clearly erroneous on the

record before us; indeed, the State has conceded that Detective

Delima’s testimony on this point was inaccurate.9 Although the


     8   Detective Delima gave the testimony in question on redirect
examination, and defense counsel then elected not to cross-examine Delima
further.
      9 This testimony also may have been inadmissible hearsay and a



                                   21
State argues that we must presume the failure to object was

strategic given trial counsel’s testimony that it is his practice to

object when an objection will help his client, trial counsel also

testified that he could not recall any strategic reason to forgo

confronting Detective Delima with his report. Moreover, “our

inquiry is focused on the objective reasonableness of counsel’s

performance, not counsel’s subjective state of mind.” Davis v. State,

 (3) (

) (2019) (citation and punctuation

omitted). And neither trial counsel nor the State offered any reason,

let alone an objectively reasonable one, for counsel’s failure to cross-

examine Detective Delima with evidence that one of the State’s

primary witnesses testified falsely on a significant point. The State

has not shown error in the trial court’s conclusion that the failure to

cross-examine Detective Delima in this fashion was deficient

performance.




violation of Lane’s rights under the Confrontation Clause, but we need not
determine that definitively to conclude that counsel should have cross-
examined Detective Delima with readily available evidence that his damaging
testimony was false.
                                    22
      (b) The trial court also found that counsel was ineffective for

failing to object to hearsay and bolstering testimony by Detective

Delima, regarding both his unnamed sources and statements by

Stallworth. The State has neither contested the trial court’s

conclusion that this testimony was inadmissible nor posited why a

reasonable lawyer would have failed to object, instead arguing that

the testimony was harmless because it was cumulative of other

evidence, an issue that goes to prejudice. We conclude that the

failure to object was objectively unreasonable. The State thus has

shown no error in the trial court’s conclusion that this amounted to

deficient performance.

     We thus conclude that the trial court did not err in finding that

trial counsel’s performance was deficient in at least two respects.

Because we have overruled our prior precedent forbidding

consideration of the cumulative prejudice of multiple errors at trial,

we next consider whether the trial court correctly found that it also




                                 23
erred, before turning to considerations of prejudice.10

      3.    The State argues that the trial court erred in finding that

Thompson’s testimony about Stallworth’s statements to her was

inadmissible. We conclude that the State has not shown that the

trial court erred in determining that the testimony should not have

been admitted.

      Thompson testified that Stallworth told her about his plans to

“hit a lick” and kill someone for money. And she testified that, on

the night of the murder, Stallworth came home and told her that

Lane did not pay him because, according to Lane, “he hit the wrong

guy.” Defense counsel raised a hearsay objection to Thompson’s

testimony regarding what Stallworth told her. The State argued

that the testimony was admissible, suggesting that Stallworth’s

statements were excluded from the hearsay rule as statements made




      10 We express no opinion on the trial court’s other findings of deficient

performance, or on whether counsel’s ineffectiveness alone is sufficient basis
to grant a new trial. Given that we ultimately find that the trial court also
made a significant evidentiary error, and that the cumulative prejudicial effect
of that error and these two instances of counsel’s ineffectiveness warrant a new
trial, those are issues we need not address.
                                      24
during the course and in furtherance of a conspiracy. See OCGA §

24-8-801 (d) (2) (E) (providing that a statement that “is offered

against a party” and made by the party’s co-conspirator “during the

course and in furtherance of the conspiracy, including a statement

made during the concealment phase of a conspiracy,” is not excluded

by the hearsay rule). The trial court overruled the objection. In

granting Lane a new trial, however, the trial court concluded that it

had improperly admitted that testimony, as Stallworth’s statements

to Thompson “could not be characterized as ‘in furtherance’ of the

conspiracy by any stretch of the imagination, or precedent”; the trial

court also appeared to reject the possibility that they were properly

admitted as prior consistent statements.

     On appeal, the State argues only that Stallworth’s statements

to Thompson fell under OCGA § 24-8-801 (d) (2) (E) as statements

in furtherance of the conspiracy. But the trial court did not abuse its

discretion in rejecting that argument in its order. The trial court’s

finding that Stallworth’s statements were not made in furtherance

of the conspiracy is a finding of fact reviewed only for clear error.

                                  25
See State v. Wilkins, 

 (

) (2017). And a

statement that merely “spill[s] the beans,” discloses the scheme, or

informs the listener of the declarant’s activities does not constitute

a statement in furtherance of the conspiracy. See 

.

Here, the statements merely amounted to Stallworth informing

Thompson — his girlfriend — what he planned to do, and then

telling her about the crime he had committed, including referencing

Lane’s involvement. The State points to no evidence suggesting that

by these statements Stallworth sought to solicit Thompson’s

assistance in carrying out the scheme or concealing its existence.

The State thus has not shown clear error in the trial court’s finding,

and we cannot conclude that the trial court abused its discretion in

concluding that the statements should not have been admitted

under OCGA § 24-8-801 (d) (2) (E). See Wilkins, 

(no abuse of discretion in trial court’s exclusion of co-defendant’s

statements recounting the circumstances of the murders to




                                 26
witnesses).11

      4.    This conclusion does not by itself warrant a new trial.

“Error shall not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is

affected[.]” OCGA § 24-1-103 (a). In other words, a harmless error

does not require reversal of a conviction, and we must consider the

harm caused by Thompson’s testimony about what Stallworth told

her. See Bannister, 

 (5) (b). But we also now have

discarded our prior precedent to the extent that it says the harmful

effect of trial court errors may not be considered cumulatively. And

we conclude that the combined prejudicial effect of the errors of the

trial court and Lane’s counsel in this case requires a new trial.

      Proceeding to consider the cumulative prejudice of both the


      11  We are skeptical of the trial court’s apparent conclusion that
Stallworth’s statements to Thompson were not admissible as prior consistent
statements, either. See OCGA § 24-8-801 (d) (1) (A). But the State did not offer
the statements at trial on this ground. And it did not identify that conclusion
as error — or argue the error — in its brief to this Court, so any claim that the
statements were admissible as prior consistent statements is abandoned on
appeal. See Supreme Court Rule 22. And given the trial court’s conclusion that
the statements were improperly admitted hearsay, we need not consider the
State’s argument that the trial court erred to the extent that it also concluded
that Thompson’s testimony was improper bolstering.
                                       27
improper admission of Thompson’s testimony and the deficient

performance of counsel, we bear in mind the relevant standards for

the errors at issue. See Cargle v. Mullin, 

 (10th

Cir. 2003) (“[T]he appropriate legal standard for a cumulative-error

claim depends on the harmless-error standard that would apply to

the constituent errors.”); see also Marchan, 

 (“To

establish cumulative error a defendant must show that (1) at least

two errors were committed in the course of the trial; (2) considered

together along with the entire record, the multiple errors so infected

the jury’s deliberation that they denied the petitioner a

fundamentally fair trial.” (citations and punctuation omitted)).

Prejudice from ineffective assistance of counsel requires a showing

by the defendant of “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.”   Strickland,   

.   And,   again,   a

nonconstitutional trial court error is harmless if the State shows

that it is “highly probable that the error did not contribute to the

verdict,” an inquiry that involves consideration of the other evidence

                                  28
heard by the jury. Bannister, 

 (5) (b) (citation and

punctuation omitted); Williams, 

 (3).

      Because here, as discussed below, prejudice or harm has been

shown under either of the applicable standards, we need not decide

exactly how multiple standards may interact under cumulative

review of different types of errors.12 And in most cases a difference

in the standards will not make a difference in the result; the

collective effect of the various errors will be sufficiently harmful to

warrant a new trial, or not. But in the rare case in which the

application of different standards makes a difference in the outcome,

the parties should brief the issue of how the standards interact in

that particular case.


      12 We can think of at least two other standards that might apply to other

types of errors. On ordinary review, the State must prove that a constitutional
error was harmless beyond a reasonable doubt. See Stovall v. State, 

 (3) (

) (2010). And certain unpreserved trial court errors
are subject to plain error review, under which the defendant must show, among
other things, that the error probably affected the outcome below, a standard
we have equated with the prejudice prong for an ineffective assistance of
counsel claim. See Hampton v. State, 

 (2) (

)
(2017) (error in jury charge); see also Hightower v. State, 

 (2)
(b) (

) (2018) (trial court expression of opinion on the facts);
Castillo-Velasquez v. State, 

 (4) (

) (2019)
(evidentiary error).
                                      29
     Applying this approach in this case, we conclude that the trial

court did not err in granting Lane a new trial. The primary evidence

against Lane was the testimony of Stallworth, whose credibility

inherently was in question given his claimed role as an accomplice.

And the properly admitted corroborating evidence was all

circumstantial. Thompson’s testimony that she overheard Lane

reassuring Stallworth does not require an inference that Lane hired

Stallworth to carry out the murder. Neither does Yun’s testimony

that Lane had a significant amount of cash. And although cell phone

evidence showing communications between and movements by Lane

and Stallworth certainly corroborated some of Stallworth’s

testimony about Lane, that evidence did not amount to direct

evidence showing that Lane asked Stallworth to kill anyone or

offered him any money. Moreover, police were not able to confirm,

apart from Stallworth’s statements, that the “D” phone with which

Stallworth exchanged 151 calls in the days leading up to the

shooting belonged to Lane. And the jury certainly could have found

the cell phone evidence confusing or simply insufficient to show

                                30
Lane’s guilt.

     In contrast, the testimony by Thompson recounting what

Stallworth told her was clear, powerful, direct evidence confirming

Stallworth’s basic account that Lane agreed to pay him thousands

of dollars to kill someone but ultimately did not pay up because

Stallworth shot the wrong person. The State has not shown error in

the trial court’s ultimate conclusion that this testimony was

admitted improperly. By virtue of trial counsel’s deficient

performance, the jury also heard a detective’s testimony that he had

confirmed certain details about the crime, including that the

shooting was a murder-for-hire, from unnamed sources. And, due to

counsel’s deficient performance, the detective’s false testimony that

Stallworth’s now-deceased cousin confirmed that Lane initially tried

to hire him to kill Gonzalez went unchallenged. We conclude that

Lane has shown that, particularly given that key portions of

Thompson’s testimony were erroneously admitted, there is a

reasonable probability that, but for counsel’s deficient performance,

the result of the trial would have been different. Similarly,

                                 31
considering Thompson’s erroneously admitted testimony in the light

of multiple ways in which counsel also performed deficiently, we

cannot say that it is highly probable that Thompson’s testimony did

not contribute to the verdict. The State has not shown that the trial

court erred in granting a new trial.13

      Judgment affirmed. All the Justices concur.




      13 Because all of the evidence, viewed in the light most favorable to the

verdict, was sufficient to support Lane’s convictions, he may be retried by the
State if it chooses to do so.
                                      32
                                APPENDIX.

     We overrule our prior decisions and those of the Court of

Appeals that hold that the prejudicial effect of multiple trial court

errors may not be considered cumulatively in determining whether

a criminal defendant is entitled to a new trial. We also disapprove

any decisions with language to that effect. We note that the list set

forth below may not be exhaustive.

      Grant v. State, 

 (5) (h) (

) (2019);
Daniels v. State, 

 (8) (

) (2017); Rivers v.
State, 

 (12) (

) (2015); Woodall v. State,

 (11) (

) (2014); Rice v. State, 

 (11) (

) (2012), disapproved on other grounds
by Willis v. State, 

 (3) (f) (

) (2018);
Humphrey v. Lewis, 

 (VI) (

) (2012);
Reese v. State, 

 (4) (c) (

) (2011);
Perkins v. Hall, 

 (VI) (B) (

) (2011);
Gear v. State, 

 (5) (

) (2011); McIlwain
v. State, 

 (4) (

) (2010); Brown v. State,

 (3) (

) (2009); Hargett v. State, 

 (6) (

) (2009); Rogers v. State, 

(11) (

) (2007); Waits v. State, 

 (4) (

) (2007); Schofield v. Holsey, 

 (II) n.1 (

) (2007); Stokes v. State, 

 (9) (

) (2007);
Appling v. State, 

 (6) (

) (2007); Watson
v. State, 

 (6) (

) (2004); Al-Amin v.
State, 

 (16) (c) (

) (2004); Smith v. State,

 (17) (

) (2003); Morrison v. State, 

 (5) (

) (2003); Head v. Thomason, 

 (11) (

) (2003); Malaguti v. State, 

 (5) (

) (2001); Jones v. State, 

 (17)
(

) (2000); Head v. Taylor, 

 (2) (

) (2000); Laney v. State, 

 (11) (

)
(1999); Bridges v. State, 

 (9) (

) (1997);
Jenkins v. State, 

 (3) (

) (1997),
overruled on other grounds by Hamm v. State, 

 (2)
& n.7 (

) (2014); Mallory v. State, 

(4) (

) (1991), abrogated on other grounds by statute as
stated in State v. Orr, 

 (3) (

) (2019);
Forehand v. State, 

 (7) (

) (1996); Miller
v. State, 

 (14) (

) (1990), overruled
on other grounds by Woodard v. State, 

 (2) n.14 (

) (1998); Dimauro v. State, 

 (8)
(

) (2017); Young v. State, 

 (5) n.6
(

) (2014); Pruitt v. State, 

 (3) (

) (2013); Jackson v. State, 

 (1) (

) (2010); Moore v. State, 

 (6) (

) (2009); Gilfold v. State, 

 (2) (

) (2009); Grier v. State, 

 (2) n.1 (

) (2008); Cail v. State, 

 (3) (

)
(2007); Ingram v. State, 

 (4) (

)
(2007); Venegas v. State, 

 (4) (

)
(2007); Ojemuyiwa v. State, 

 (5) (

)
(2007); Johnson v. State, 

 (8) n.4 (

) (2007); Fraser v. State, 

 (4) (

) (2007)*; Anderson v. State, 

 (3) (

) (2006)*; Ellis v. State, 

 (2) (

)
(2006)*; Fields v. State, 

 (2) (

)
(2006)*; Hutchens v. State, 

 (2) (

)
(2006)*; Callahan v. State, 

 (

)
(2006); Tyler v. State, 

 (3) (

)
(2006)*; Frazier v. State, 

 (3) (

)
(2006)*; Davenport v. State, 

 (2) (

)
(2006)*; Zepp v. State, 

 (5) (

)

                                 34
(2005)*; Fitz v. State, 

 (4) (

)
(2005)*; Stapp v. State, 

, 901 n.2 (

)
(2005)*; Cornelius v. State, 

 (2) (

)
(2005)*; Brooks v. State, 

 (4) (

)
(2005)*; Garcia v. State, 

 (2) n.7 (

)
(2005); Weeks v. State, 

 (1) (a) (

)
(2004); Howren v. State, 

 (5) (

)
(2004)*; Dixon v. State, 

 (2) (

)
(2004)*; Richey v. State, 

 (4) (

)
(2003); Pollard v. State, 

 (2) (

)
(2003); Hodges v. State, 

 (5) (

)
(2003)*; Baker v. State, 

 (3) (

)
(2003)*; Phyfer v. State, 

 (7) (

)
(2003); Torres v. State, 

, 395 n.6 (

)
(2002); Whited v. State, 

 (8) (

)
(2002)*; Schwindler v. State, 

 (13) (

) (2002); Burk v. State, 

 (2) (

) (2001)*; Holland v. State, 

 (4) (

) (2001)*; Gosnell v. State, 

 (2) (c) n.13 (

) (2001); Choat v. State, 

, 476 n.1 (

) (2000); Brinson v. State, 

 (3) (

) (2000); Osborne v. State, 

 (1) (

) (1999)*; Davis v. State, 

 (8) (

)
(1999); Binns v. State, 

 (2) (

)
(1999); Johnson v. State, 

 (3) (e) (

)
(1999)*; Wofford v. State, 

 (5) (

)
(1998); Carl v. State, 

 (2) (g) (

)
(1998)*; Polk v. State, 

 (1) (d) (

)
(1997)*; Davis v. State, 

 (3) (d) (

)
(1996); Baugher v. State, 

 (3) (

)
(1994); Allen v. State, 

 (5) (

)
(1993), disapproved on other grounds by State v. Burns, 

 (2) n.3 (

) (2019); Thompson v. State, 

 (5) (

) (1991); Nichols v. State, 

 (3) (

) (1991); Dyous v. State, 

,

                                  35
100 (3) (

) (1990); Stephens v. State, 

 (3) (

) (1988); Fuqua v. State, 

(2) (

) (1987); Taylor v. State, 

 (11)
(

) (1987); Curtis v. State, 

 (3) (

) (1987); Sears v. State, 

 (11) (

) (1987), overruled on other grounds by Johnston v. State,

 (

) (1994); Eady v. State, 

 (11) (

) (1987); Campbell v. State, 

 (2) (

) (1986), disapproved on other grounds
by Coleman v. State, 

 (8) (

) (1999);
Cooper v. State, 

 (10) (

) (1986);
Montford v. State, 

 (6) (

) (1983);
Veal v. State, 

 (3) (d) (

) (1983);
Chappell v. State, 

 (8) (

) (1982);
Butler v. State, 

 (4) (

) (1982);
Gilstrap v. State, 

 (12) (

) (1982);
Sierra v. State, 

 (

) (1980); Suits
v. State, 

 (5) (

) (1979); Haas v.
State, 

 (8) (

) (1978).


*We disapprove these Court of Appeals cases to the extent that they
make the broad pronouncement that Georgia does not recognize the
cumulative error doctrine, but they already have been disapproved,
explicitly or implicitly, to the extent that they indicate that Georgia
courts will not consider the cumulative prejudicial effect of counsel’s
errors. See Schofield, 

 (II) n.1.




                                  36
                  DECIDED FEBRUARY 10, 2020.
     Murder. DeKalb Superior Court. Before Judge Seeliger.
     Sherry Boston, District Attorney, Destiny H. Bryant, Jason M.
Rea, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, for appellant.
     Garland, Samuel & Loeb, Donald F. Samuel, for appellee.




                               37