Lofton v. State

In the Supreme Court of Georgia



                                     Decided: February 15, 2021


                  S20A1101. LOFTON v. THE STATE.


      ELLINGTON, Justice.

      A jury found Hakim Lofton guilty of malice murder and

possession of a firearm in connection with the shooting death of

Jason Walker.1 On appeal, Lofton challenges the sufficiency of the



      1 The shooting occurred on October 10, 2013. A Fulton County grand jury
returned an indictment on January 14, 2014, charging Lofton with malice
murder (Count 1), felony murder predicated on armed robbery (Count 2), felony
murder predicated on aggravated assault (Count 3), armed robbery (Count 4),
aggravated assault (Count 5), and possession of a firearm during the
commission of a felony (Count 6) predicated on Counts 1 through 5. At a jury
trial commencing on September 22, 2014, Lofton was found not guilty on
Counts 2 and 4 and guilty on the remaining counts. By judgment entered on
September 30, 2014, the trial court sentenced Lofton to life in prison for
murder (Count 1) and five years in prison for the firearm charge (Count 6) to
run consecutively. Count 5 merged with Count 1. The judgment indicated that
Count 3 also merged with Count 1, although it was actually vacated by
operation of law. See Bradley v. State, 305 Ga. 857, 858 n.1 (828 SE2d 322)
(2019). Lofton filed a timely motion for a new trial, which he amended on June
6, 2016, and April 22, 2019. After a hearing, the trial court denied the motion
for a new trial on August 8, 2019. Lofton filed a timely notice of appeal, and his
appeal was docketed in this Court for the August 2020 term and submitted for
decision on the briefs.
evidence and contends that the trial court erred in admitting cell-

site location information that was obtained without a warrant, in

failing to instruct the jury regarding the corroboration required for

accomplice testimony, in allowing certain exhibits to go out with the

jury, and in rejecting his claim that there was racial discrimination

in jury selection. Lofton also contends that he received ineffective

assistance of counsel. For the reasons explained below, we affirm.

     1. Lofton contends that the evidence that he was the person

who shot Walker was entirely circumstantial and that it was

insufficient   to   prove   identity   beyond   a   reasonable   doubt.

Specifically, he argues that the only eyewitness to the shooting,

Joseph Eatmon, lacked credibility and, at any rate, was unable to

positively identify him as the shooter. The rest of the State’s

evidence, Lofton argues, can only prove that he was associated with

Eatmon and Walker and that he was in the area of the crimes when

they happened.

     When reviewing the sufficiency of the evidence as a
     matter of constitutional due process, we view the evidence
     in the light most favorable to the verdicts, see Jackson v.

                                   2
     Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)
     (1979), and do not resolve conflicts in the evidence,
     leaving those within the province of the jury. In addition,
     as a matter of Georgia statutory law, where a conviction
     is based on circumstantial evidence, . . . the evidence must
     “not only be consistent with the hypothesis of guilt, but
     shall exclude every other reasonable hypothesis save that
     of the guilt of the accused.” OCGA § 24-14-6. Whether an
     alternative hypothesis is reasonable or whether the
     circumstantial evidence excludes every reasonable
     hypothesis save that of guilt is left to the jury, and this
     Court will not disturb that finding unless it is
     insupportable as a matter of law.

Schell v. State, __ Ga. __, __ (Case No. S20A1383, decided Dec. 7,

2020) (citations and punctuation omitted).

     Viewed in this manner, the evidence shows the following. In

2013, Walker frequently asked his friend, Eatmon, to connect him

with someone who would sell him Xanax tablets, and Eatmon

brokered transactions for Walker approximately 25 to 30 times. On

October 8, 2013, Eatmon brokered such a transaction with Cedric

Brown. Walker and Eatmon met Brown at a QuikTrip station on

Upper Riverdale Road, where Walker bought approximately 30

tablets of Xanax that had been prescribed to Brown’s girlfriend’s

mother.

                                  3
     The next day, October 9, Walker wanted to buy a much larger

quantity of Xanax. Eatmon called Brown, and Brown said that he

might know someone who could fill the order. Brown called Lofton,

whom he knew as Lil Tony and who lived in the same area of

Riverdale as Brown. Brown told Lofton about Eatmon’s request and

asked if he could give Eatmon Lofton’s number. Lofton agreed, and,

after Brown gave Eatmon the number, Brown had no more

involvement in that sale. Eatmon called Lofton that evening and set

up a meeting for the transaction the following day.

     Eatmon and Lofton agreed to meet at the College Park transit

station between 7:00 and 8:00 a.m. on October 10. Walker picked up

Eatmon in his white Honda between 7:30 and 7:45 a.m. Lofton called

Eatmon while Eatmon and Walker were en route to the College Park

station, said he was running late, and changed the meeting place to

a bus stop on Washington Road near Camp Creek Parkway. Eatmon

told Lofton they were near that intersection and would pull into the

Chevron station near the bus stop.

     The bus arrived a few minutes later, and a solitary passenger

                                 4
got off. Based on their recent phone calls, Eatmon deduced that the

passenger was Lil Tony and waved him over to Walker’s car. Lil

Tony got into the backseat behind Eatmon and told Walker to

continue on Washington Road to an apartment complex off of

Spanish Trail. Walker stopped at a Chevron station near the

apartments, and Eatmon got out and went into the convenience

store. When Eatmon came out of the store, he saw that Walker had

parked at the apartments, and Eatmon followed on foot. As Eatmon

approached Walker’s car, he saw Lil Tony exit the car on the

passenger side, pull a gun out of his jacket, shoot into the car, and

then run away. When Eatmon reached the car, Walker told Eatmon

that he had been shot and asked Eatmon to take him to the hospital.

Walker moved into the passenger seat, Eatmon got into the driver’s

seat, and Eatmon called 911 as he drove to South Fulton Hospital.

During the drive, Walker asked Eatmon not to tell anyone about the

drug deal, because he did not want his family to know about his

continuing drug addiction.

     When Eatmon and Walker reached the hospital, they were met

                                 5
by East Point police officers. Walker was taken inside for treatment,

and Eatmon spoke briefly with two East Point police department

detectives at the hospital and then went with them to the police

station for questioning. Eatmon told the detectives that he had been

taking Walker to see a prostitute at a motel and that Walker was

shot in a robbery at the Chevron station on Washington Road near

Camp Creek Parkway. Eatmon signed a written summary of his

statement.

     Walker died at the hospital at about 5:00 p.m. on the day he

was shot. After learning that Walker did not survive, Eatmon told

the detectives that the parts of his previous oral and written

statements about the prostitute and about Walker being shot in a

robbery had been lies, which he told because Walker had asked him

to conceal his drug habit from his family. Eatmon said that he and

Walker had actually met a drug dealer so Walker could purchase

Xanax, and that the dealer shot Walker. Eatmon gave the actual

location for the shooting. He told the detectives that the only name

he had for the dealer was “Lil Tony” and gave them the phone

                                 6
number he had used to communicate with Lil Tony. Eatmon also

informed them that he was introduced to Lil Tony through Brown,

and he gave the detectives Brown’s phone number.

     That day, the detectives interviewed Brown at his home in

Riverdale and he told them about giving Lil Tony’s phone number to

Eatmon for the drug deal, which was the same phone number

Eatmon used to contact Lil Tony. Brown told the detectives that Lil

Tony lived near him, on Ridge Trail, in a house he described. Based

on the information that Brown gave, the detectives were able to

determine Lil Tony’s address on Ridge Trail. Because that address

was in Clayton County, the detectives contacted the Clayton County

police department for information about the residents. The

detectives learned the legal name of Lil Tony, and the Clayton

County police provided a booking photo of Lofton.

     The detectives prepared a photo lineup that included Lofton’s

booking photo, and they showed it to Brown on October 14. He

immediately and positively identified Lofton as the person he knew

as Lil Tony. The detectives also showed Eatmon a photo lineup, and

                                7
Eatmon picked Lofton’s picture, although his identification was

uncertain. The next day, the detective applied for a warrant to arrest

Lofton for Walker’s murder. Lofton was arrested by United States

marshals at his home on October 16. That same day, the detectives

and other officers executed a search warrant for Lofton’s home. They

found more than 70 .22-caliber long rifle hollow-point rounds and

three .22-caliber shell casings in Lofton’s bedroom, which was the

same type of bullet that killed Walker and was removed from his

body during his autopsy. No firearm was found in Lofton’s home.

     At trial, Brown identified Lofton as the drug dealer whom he

knew as Lil Tony and whose phone number he gave to Eatmon for

the drug deal. Eatmon could not specifically identify Lofton as the

drug dealer Lil Tony whom he met minutes before he saw the dealer

shoot Walker, but he described Lil Tony as a black male, in his early

20s, 5’ 8” to 5’ 9” tall, who was wearing a black jacket, blue jeans,

and a hoody, with the hood pulled up when Eatmon met him.

Eatmon testified that he had just “glanced at [Lil Tony’s] face” when

he and Walker picked him up at the Chevron station on the day of

                                  8
the shooting. He testified that during the photo lineup he chose the

photo of the one who looked “similar” to Lil Tony.

     The State introduced MetroPCS records, including subscriber

information and call logs that included cell-site location information,

for cell phones used by Eatmon, Brown, and Lofton. The phone

records, together with the testimony of a records custodian who was

qualified as an expert in MetroPCS’s recordkeeping practices,

showed that Eatmon’s and Brown’s phones exchanged calls on

October 8 and 9, and that, at the same time on October 8, both of

their phones connected to a cell tower near the QuikTrip station on

Upper Riverdale Road where they met for the drug deal that day.

The phone records also showed that, after Eatmon’s phone called

Brown’s phone on October 9, Brown’s phone called Lofton’s phone,

then Brown’s phone called Eatmon’s phone, then Eatmon’s phone

called Lofton’s phone. Lofton’s phone exchanged calls with Eatmon’s

phone and with Brown’s phone additional times that night. The

phone records showed that on October 10, the day of the shooting,

Lofton’s phone called Eatmon’s phone at 7:11 a.m., and they

                                  9
exchanged calls an additional eight times over the next 90 minutes;

cell-site location information showed that Lofton’s phone was on the

move during that interval. At the time of their last call, 8:40 a.m.,

Lofton’s phone called Eatmon’s phone, and the call lasted less than

one minute; both Lofton’s phone and Eatmon’s phone connected to

Sector 3 of Tower 109, located at 3485 Desert Drive in East Point,

which is near the Chevron station where Walker and Eatmon picked

up Lofton. At 8:49 a.m., Lofton’s phone connected to Sector 2 of

Tower 422, located at 4399 S. Commerce Drive in East Point, which

was the nearest cell site to where Walker was fatally shot. Two

minutes later, at 8:51 a.m., Eatmon’s phone called 911. The nearest

cell site at the beginning of the call was also Sector 2 of Tower 422.

By the end of the 911 call, Eatmon, while driving Walker to the

hospital, was back in range of Sector 3 of Tower 109.

     Assuming without deciding that the evidence of Lofton’s guilt

was entirely circumstantial, the State presented sufficient evidence

to support the convictions, despite the inability of the only

eyewitness to the shooting, Eatmon, to positively identify him and

                                 10
despite any purported deficits in Eatmon’s credibility. 2 Brown

positively identified Lofton as the drug dealer he knew as Lil Tony;

his information led detectives to Lofton’s residence; and Brown’s

testimony connected Lofton to Eatmon and to the October 10

planned drug deal involving Walker. Phone records for Lofton,

Eatmon, and Brown supported the testimony of Eatmon and Brown

about the communications among them on the day of the shooting

and the days before and after. And the MetroPCS records placed

Lofton’s phone at the location of the shooting at the time of the

shooting. Thus, the evidence presented at trial was both sufficient

to allow a rational jury to find beyond a reasonable doubt that Lofton

was guilty of the crimes for which he was convicted, as required by

due process, and to reject any hypothesis save that of his guilt for



      2 At trial, Lofton argued during closing argument that Eatmon was not
credible, based on several factors: Eatmon was a convicted felon; he lied during
the trial about his criminal past; he admitted that he initially lied to the
detectives about details of the incident; the security video from the first
Chevron station did not confirm his testimony (because it did not show a white
Honda in the parking lot on the morning of October 10); and no forensic
evidence confirmed his testimony about the location of the shooting. Lofton also
argued that the investigation was flawed in that the detectives did not treat
Eatmon, Brown, or others as potential suspects.
                                      11
those crimes, as required by OCGA § 24-14-6. See Payne v. State,

273 Ga. 317, 318 (1) (540 SE2d 191) (2001) (evidence sufficient to

authorize rational trier of fact to find accused guilty beyond a

reasonable doubt of murder and possession of a knife and to exclude

every reasonable inference and hypothesis except guilt of accused,

despite lack of any eyewitness testimony that defendant stabbed

victim or that he possessed a knife).

     2. Lofton contends that the trial court erred in denying his

motion to suppress his cell phone records and all of the evidence

derived from those phone records. At the hearing on Lofton’s motion

to suppress, one of the East Point detectives who investigated the

shooting testified as follows. About 12 hours after the shooting, she

spoke with a MetroPCS representative and told the representative

that there had been a murder that morning, that the detective had

a phone number for the suspect (the number Eatmon and Brown

used to contact the drug dealer they knew as Lil Tony), and that she

needed information from the suspect’s account. The detective

explained that there was a witness who was known to the suspect

                                 12
and could be harmed while the suspect was still at large. The

MetroPCS representative emailed an “Exigent Circumstance

Request” form for the detective to complete. On the request form,

the detective requested subscriber data for the target phone number

and asked for call-detail records, including cell sites, 3 for the day of

the shooting and the three previous days. The detective described

the “nature of the emergency” by stating that a murder victim “had

contact with his murderer through the target number.” The form

included the statement, “I hereby attest that the information

provided above, to the best of my knowledge, is true and accurate

and that . . . an emergency situation exists that involves . . .




      3  A “cell site” typically consists of a set of either three or six directional
radio antennas mounted on a tower, light post, flagpole, church steeple, or side
of a building. See Carpenter v. United States, __ U. S. __, __ (I) (A) (138 SCt
2206, 2211, 201 LE2d 507) (2018). Unless powered off, a cell phone
continuously scans its environment looking for the strongest signal, which
generally comes from the nearest cell site. See id. Each time a phone connects
to a cell site, the connection generates a time-stamped digital record in the
service provider’s account records that includes the particular cell site and the
specific antenna activated (“sector” information); such records are known as
cell-site location information. See id. Service providers generally maintain
account-specific data, including cell-site location information, for long periods
of time. See id. at __ (III) (A) (138 SCt at 2218) (wireless carriers “currently
maintain records for up to five years”).
                                         13
immediate danger of death or serious bodily injury to a person[.]”

      First, Lofton argues that the detective’s initial, warrantless

acquisition of his cell phone records on the day of the shooting,

including four days of historical cell-site location information

(“CSLI”), was a search under the Fourth Amendment, because a cell

phone user has a reasonable expectation of privacy in historical

CSLI for his phone. Second, Lofton argues that the trial court erred

in finding that the warrantless search of his cell phone records was

justified by exigent circumstances, because the detective had no

case-specific information that the then-unidentified shooter was

fleeing, had threatened to harm any person, or was actively

destroying evidence. Lofton argues that the exclusionary rule

therefore requires suppression of the initial tranche of his cell phone

records as well as suppression of all the evidence derived from those

records as “fruit of the poisonous tree.”4 Putting aside the first and


      4 In the affidavit supporting the application for an arrest warrant, the
detective stated that Lofton’s phone records showed contact with Eatmon
before the shooting and that cell tower sites indicated that Lofton’s phone was
in the area at the time of the shooting. She also summarized the witnesses’

                                      14
second elements of Lofton’s argument, we conclude that the

exclusionary rule does not apply to the evidence at issue. Therefore,

reversal is not required.

      At the time of Lofton’s trial in 2014, no appellate precedent

binding in Georgia courts held that a request or demand by a

governmental entity to a cell phone service provider that the

provider produce its records related to a customer’s account

constituted a search under the Fourth Amendment. 5 Under then-



statements that Brown referred Eatmon to Lofton as a source for the drugs
Walker wanted to buy and stated that Brown positively identified Lofton in a
photo lineup as the person he had referred Eatmon to for the drug deal. After
Lofton was arrested, the detective used the same information in an affidavit
supporting her application for a warrant to search Lofton’s home. And, weeks
later, she used the same information in affidavits for search warrants for
MetroPCS records, including the content of text messages, for Lofton’s,
Eatmon’s, and Brown’s phones for October 1 through 20, 2013.
       5 See Reed v. State, 307 Ga. 527, 535 (2) (b) (837 SE2d 272) (2019) (Trial

counsel was not ineffective in failing to seek to suppress the defendant’s cell
phone records that included CSLI, which were obtained pursuant to a court
order, because at the time of defendant’s 2017 trial, “Georgia appellate
precedent held that a search warrant was not required to obtain CSLI.”
(citation omitted)); Smarr v. State, 317 Ga. App. 584, 593 (3) (c) (732 SE2d 110)
(2012) (Trial counsel was not ineffective in failing to seek to suppress the
defendant’s cell phone records that included CSLI, which were obtained
pursuant to a court order, on the basis that the records were obtained without
statutory authority and in violation of the defendant’s Fourth Amendment
rights against unreasonable searches and seizures, because a motion to
suppress “would not have been successful based upon the law as it existed at

                                       15
existing constitutional doctrine, a person generally lacked a

reasonable expectation of privacy in business records owned and

maintained by a third-party business.6 The government’s access to




the time of the trial” in 2010. (footnote omitted)).
       6 See Smith v. Maryland, 442 U. S. 735, 742-746 (99 SCt 2577, 61 LE2d

220) (1979) (holding that a landline telephone customer has no reasonable
expectation of privacy in a record of the outgoing phone numbers dialed on his
telephone because he voluntarily conveys such information to the telephone
company); United States v. Miller, 425 U. S. 435, 442-443 (96 SCt 1619, 48
LE2d 71) (1976) (holding that a bank customer has no reasonable expectation
of privacy in records held by the bank, such as canceled checks, deposit slips,
and monthly statements, because he voluntarily conveys information about his
financial transactions to the bank).
       In support of Lofton’s motion to suppress, he cited a 2014 Eleventh
Circuit panel decision holding that the Smith and Miller third-party doctrine
holdings did not extend to historical CSLI obtained with a court order issued
under the SCA, 18 USC § 2703 (c) (1) (B), (d); that “cell site location information
is within the subscriber’s reasonable expectation of privacy”; and that “[t]he
obtaining of that data without a warrant is a Fourth Amendment violation.”
United States v. Davis (“Davis I”), 754 F3d 1205, 1217 (I) (11th Cir. 2014). That
decision was not binding in Georgia courts. See State v. Rosenbaum, 305 Ga.
442, 449-450 (2) (826 SE2d 18) (2019) (Eleventh Circuit decisions are not
binding in Georgia courts, although this Court can consider them as persuasive
authority.); Deen v. Stevens, 287 Ga. 597, 601 (2) (b) (698 SE2d 321) (2010)
(Eleventh Circuit decisions are not binding in Georgia courts, even on federal
law questions, although this Court can consider them as persuasive
authority.). Moreover, before Lofton’s trial began, the Eleventh Circuit vacated
Davis I for rehearing en banc, see United States v. Davis, 573 Fed. Appx. 925
(11th Cir. Sept. 4, 2014), and later held that the government’s obtaining a court
order under the SCA for the production of the cell phone provider’s business
records did not constitute a search and did not violate the subscriber’s Fourth
Amendment rights. See United States v. Davis, 785 F3d 498, 507-513 (III) (11th
Cir. 2015).

                                        16
such records was not unfettered, however, but was governed by

federal and state statutes. Title II of the Electronic Communications

Privacy Act of 1986, commonly called the Stored Communications

Act (“SCA”),7 provides some privacy protection for the content of

electronic communications and for non-content or transactional

records maintained by providers of electronic communications

services. The SCA protects the privacy of electronic communications

under two paths: by limiting providers’ ability to voluntarily disclose

a user’s information, in 18 USC § 2702, and by specifying the

circumstances in which the government can compel providers to

disclose their users’ information, in 18 USC § 2703. See Alexander

v. Verizon Wireless Svcs., 875 F3d 243, 250 (III) (5th Cir. 2017);

Registe v. State, 292 Ga. 154, 155-156 (734 SE2d 19) (2012).8


      7  Title II is codified at 18 USC §§ 2701 through 2710. We note that the
provisions of the SCA discussed herein have not been amended since Lofton’s
trial.
       8 See Hampton v. State, 295 Ga. 665, 671 (763 SE2d 467) (2014)

(Nahmias, J., concurring) (noting that, under “constitutional doctrine”
applicable at the time of a 2012 trial, “the Fourth Amendment’s protections do
not encompass records of a person’s stored communications when the police
obtain those records from someone else, like the person’s communications
provider,” although “federal and Georgia statutory law imposes limits on the

                                     17
     In terms of voluntary disclosures under 18 USC § 2702, the

SCA generally prohibits a provider from voluntarily divulging “a

record or other information pertaining to a subscriber to or customer

of such service . . . to any governmental entity.” 18 USC § 2702 (a)

(3).9 The SCA provides remedies and sanctions for prohibited



authority of law enforcement to demand stored wire and electronic
communications information from a communications provider” (emphasis in
original; citations omitted)).
      9 18 USC § 2702 (a) provides that, except as otherwise provided,

      (1) a person or entity providing an electronic communication
      service to the public shall not knowingly divulge to any person or
      entity the contents of a communication while in electronic storage
      by that service; and
      (2) a person or entity providing remote computing service to the
      public shall not knowingly divulge to any person or entity the
      contents of any communication which is carried or maintained on
      that service ―
             (A) on behalf of, and received by means of electronic
             transmission from (or created by means of computer
             processing of communications received by means of
             electronic transmission from), a subscriber or
             customer of such service;
             (B) solely for the purpose of providing storage or
             computer processing services to such subscriber or
             customer, if the provider is not authorized to access
             the contents of any such communications for purposes
             of providing any services other than storage or
             computer processing; and
      (3) a provider of remote computing service or electronic
      communication service to the public shall not knowingly divulge a
      record or other information pertaining to a subscriber to or
      customer of such service (not including the contents of

                                  18
disclosures. 10 But a service provider can voluntarily provide such

non-content records to a governmental entity if the provider has a

good-faith belief that an emergency poses a risk of death or serious

physical injury that requires disclosure without delay. See 18 USC

§ 2702 (c) (4).11 MetroPCS therefore violated the SCA by voluntarily



       communications covered by paragraph (1) or (2)) to any
       governmental entity.
       10 See 18 USC §§ 2701 (providing criminal penalties for “intentionally

access[ing] without authorization” or “intentionally exceed[ing] an
authorization to access” a “facility through which an electronic communication
service is provided”); 2707 (a) (providing a civil remedy for any “person
aggrieved by any violation of [the SCA] in which the conduct constituting the
violation is engaged in with a knowing or intentional state of mind”), (d)
(providing for administrative discipline of government employees under
certain circumstances); 2708 (“The remedies and sanctions described in this
chapter are the only judicial remedies and sanctions for nonconstitutional
violations of this chapter.”).
       11 18 USC § 2702 (c) (4) provides:

       A provider . . . may divulge a record or other information
       pertaining to a subscriber to or customer of such service (not
       including the contents of communications covered by subsection (a)
       (1) or (a) (2)) . . . to a governmental entity, if the provider, in good
       faith, believes that an emergency involving danger of death or
       serious physical injury to any person requires disclosure without
       delay of information relating to the emergency[.]
See United States v. Gilliam, 842 F3d 801, 803 (2d Cir. 2016) (As used in 18
USC § 2702 (c), the phrase “other information” includes the current location of
a subscriber’s cell phone. A provider was authorized to disclose a subscriber’s
current location to law enforcement officers under subsection (c) (4) because
the officers had received credible information that the subscriber was
transporting a missing child in order to require her to work as a prostitute,
which was an emergency involving danger of serious physical injury to the

                                      19
producing the subscriber information and call logs with CSLI

requested by the detective, unless it had a good faith belief that a

qualifying emergency existed.

       Here, when requesting Lofton’s records, the detective attested

that an emergency existed that involved immediate danger of death

or serious bodily injury to a person. She explained that there was a

witness who was known to a murder suspect and that the records

were needed to apprehend the suspect and to prevent the witness

from being harmed. In Registe, a factually similar case decided two

years before Lofton’s trial, 12 this Court determined that a law

enforcement request for voluntary disclosure of cell phone records

satisfied the applicable statutory law, where the service provider

had


child.).
       12In Registe, a detective who was investigating a double murder learned
from a third person that the victims were supposed to meet someone named
“Mike” on the morning they were killed. The witness had a cell phone number
for “Mike.” The detective faxed a request to the service provider for the owner
of the account and for a log of calls for a two-hour period bracketing the time
of the murders. The detective attested, “[o]bviously this suspect presents an
immediate danger to any law enforcement officer who may come into contact
with this person.” The service provider voluntarily released the requested
records. See Registe, 292 Ga. at 156-157.
                                      20
      received information directly from police that its records
      could help identify an at-large suspect of a double
      homicide committed within a day of the request and that
      the suspect presented a present and immediate danger.
      This supported [the provider’s] good faith belief that there
      was an ongoing emergency, and that belief supported [the
      provider’s] voluntary disclosure of its records [under the
      SCA, 18 USC § 2702 (c) (4)].

Registe, 292 Ga. at 157 (footnote omitted).13 Likewise, in this case,

we conclude that the detective’s communications with MetroPCS

supported a good faith belief that its voluntary disclosure of the

requested records was authorized under the SCA and binding

appellate precedent at the time. See id. at 156-157.


      13  In addition to challenging the release of cell phone records under 18
USC § 2702 (c) (4), Registe also argued that the release failed to comply with
OCGA § 16-11-66.1 (d), which provides: “A subpoena for the production of
stored wire or electronic communications and transactional records pertaining
thereto may be issued at any time upon a showing by a law enforcement
official, a prosecuting attorney, or the Attorney General that the subpoenaed
material relates to a pending criminal investigation.” See also OCGA §§ 16-11-
62 (defining offenses involving unlawful eavesdropping or surveillance); 16-11-
69 (providing punishments for offenses involving unlawful eavesdropping or
surveillance). We questioned whether OCGA § 16-11-66.1 applies to voluntary
disclosures under 18 USC § 2702 (c) (4), because OCGA § 16-11-66.1 “appears
to apply only to mandatory disclosures” of electronic communications and
related transactional records to law enforcement. Registe, 292 Ga. at 157 n.3
(emphasis in original); see id. at 158 (Hunstein, C.J., concurring specially)
(“Intended to establish ground rules for the issuance and use of warrants,
subpoenas, and other means by which law enforcement can compel the
disclosure of information, [OCGA § 16-11-66.1] does not address situations
involving voluntary disclosures by service providers.” (citations omitted)).
                                      21
      Four years after Lofton’s trial, the United States Supreme

Court’s decision in Carpenter v. United States, __ U. S. __ (138 SCt

2206, 201 LE2d 507) (2018), marked a shift in constitutional

doctrine for the government’s acquisition of a person’s location

information from an electronic communications services provider.

The Court concluded that CSLI can be mapped to provide “an all-

encompassing record of the [cell phone] holder’s whereabouts.” Id. at

__ (III) (A) (138 SCt at 2217).

      As with GPS information, the time-stamped [cell-site
      location] data provides an intimate window into a
      person’s life, revealing not only his particular movements,
      but through them his familial, political, professional,
      religious, and sexual associations. These location records
      hold for many Americans the “privacies of life.” And like
      GPS monitoring, cell phone tracking is remarkably easy,
      cheap, and efficient compared to traditional investigative
      tools.

Id. (citations and punctuation omitted). 14 The Court held that,



      14    See Riley v. California, 573 U. S. 373, 393 (III) (B) (1), 403 (IV) (134
SCt 2473, 189 LE2d 430) (2014) (Modern cell phones, which have “immense
storage capacity,” with “all they contain and all they may reveal,” about a
person’s private concerns, communications, associations, and past “specific
movements down to the minute,” “hold for many Americans ‘the privacies of
life[.]’” (citation omitted)).

                                        22
“[w]hether     the    government       employs     its   own     surveillance

technology[,]” as when it places a tracking device on a suspect’s car, 15

“or leverages the technology of a wireless carrier, . . . an individual

maintains a legitimate expectation of privacy in the record of his

physical movements as captured through CSLI[,]” despite the fact

that the information is held by a third party as part of its business

records. Carpenter, __ U. S. at __ (III) (138 SCt at 2217).

      Because a person has a reasonable expectation of privacy in

“the whole of his physical movements” as captured through CSLI,

the Carpenter Court held, compelling a cell-service provider to turn

over a user’s historical CSLI is a search under the Fourth

Amendment, at least if the CSLI is for seven days or more, and,

before such a search, “the Government’s obligation is a familiar one

– get a warrant.” Id. at __ (III) (A), (IV) (138 SCt at 2217-2221). The



      15 See United States v. Jones, 565 U. S. 400, 407 (132 SCt 945, 181 LE2d
911) (2012) (The government’s installation of a GPS tracking device on a
target’s vehicle, and its use of that device to monitor the vehicle’s movements
for a period of weeks, was a “physical intrusion of a constitutionally protected
area in order to obtain information” and therefore constituted a “search” within
the meaning of the Fourth Amendment.).

                                      23
Court held that an order issued under 18 USC § 2703 (c) (1) (B) and

(d), based on a showing that the government has “reasonable

grounds” for believing that the records are “relevant and material to

an ongoing investigation,”16 is not “a permissible mechanism for

accessing historical cell-site records” because the required showing

by law enforcement “falls well short of the probable cause required

for a warrant” and creates a standard that is “a gigantic departure

from the probable cause rule” applicable to searches under the

Fourth Amendment. Carpenter, __ U. S. at __ (IV) (138 SCt at 2221)

(punctuation omitted).

      In Carpenter, the Court decided the issue before it narrowly,



      16  18 USC § 2703 (c) (1) provides five circumstances that may authorize
a governmental entity to “require a provider of electronic communication
service or remote computing service to disclose a record or other information
pertaining to a subscriber to or customer of such service (not including the
contents of communications),” including, in subpart (B), when the
governmental entity “obtains a court order for such disclosure under
subsection (d) of this section[.]” 18 USC § 2703 (d) provides that a court order
for disclosure under subsection (c)
       may be issued by any court that is a court of competent jurisdiction
       and shall issue only if the governmental entity offers specific and
       articulable facts showing that there are reasonable grounds to
       believe that the contents of a wire or electronic communication, or
       the records or other information sought, are relevant and material
       to an ongoing criminal investigation.
                                      24
holding that “accessing seven days of [historical] CSLI constitutes a

Fourth Amendment search.” Carpenter, __ U. S. at __ & n.3 (III) (138

SCt at 2217). The Court did not reach the question “whether there

is a limited period for which the Government may obtain an

individual’s historical CSLI free from Fourth Amendment scrutiny,

and if so, how long that period might be.” Id. In arguing for this

Court to reverse the trial court’s denial of Lofton’s motion to

suppress the first tranche of cell phone records, and evidence derived

from those records, Lofton seeks an extension of the holding in

Carpenter: from a government-compelled production of cell phone

records under 18 USC § 2703 (c) (1) (B) and (d) to a request under

18 USC § 2702 (c) (4) for the voluntary disclosure of records to

address an emergency, and from seven days of historical CSLI to

four days of historical CSLI.

     Even if we were persuaded that Carpenter should be extended

in these ways, however, we would not reverse the trial court’s

decision to admit the historical CSLI evidence in this case unless

exclusion would serve the purpose of deterring future Fourth

                                 25
Amendment violations by law enforcement officers, which is the

“sole purpose” of the exclusionary rule. Davis v. United States, 564

U. S. 229, 236-237 (II) (131 SCt 2419, 180 LE2d 285) (2011)

(citations omitted). “For exclusion [of evidence obtained in violation

of the Fourth Amendment] to be appropriate, the deterrence benefits

of suppression must outweigh its heavy costs.” Id. (citation omitted).

“When the police exhibit deliberate, reckless, or grossly negligent

disregard for Fourth Amendment rights, the benefits of exclusion

tend to outweigh the costs.” Id. at 238 (II) (citation and punctuation

omitted). But, “when the police act with an objectively reasonable

good-faith belief that their conduct is lawful, or when their conduct

involves only simple, isolated negligence,” then “suppression fails to

yield        appreciable      deterrence,      [and]   exclusion     is   clearly

unwarranted.” Id. at 237-238 (citations omitted).

        Two “good faith” exceptions to the exclusionary rule are

pertinent here. 17 In Illinois v. Krull, 480 U. S. 340 (107 SCt 1160, 94



        17   The first good faith exception to the exclusionary rule recognized by

                                          26
LE2d 364) (1987), the United States Supreme Court examined the

admissibility of “evidence obtained by an officer acting in objectively

reasonable      reliance     on    a   statute”     that    is   later    declared

unconstitutional. Id. at 349 (II) (B). The Court held that such

evidence is not subject to the exclusionary rule because “[p]enalizing

the officer for the legislature’s error, rather than his own, cannot

logically contribute to the deterrence of Fourth Amendment


the United States Supreme Court applies where an officer acting with objective
good faith obtains a search warrant from a judge or magistrate and acts within
the scope of the warrant. See United States v. Leon, 468 U. S. 897, 918-921 (III)
(B) (104 SCt 3405, 82 LE2d 677) (1984). This Court later held that, “in light of
[Georgia’s] legislatively-mandated exclusionary rule found in OCGA § 17-5-
30[,]” the Leon exception to the exclusionary rule is inapplicable in Georgia as
a matter of statutory law. Gary v. State, 262 Ga. 573, 577 (422 SE2d 426)
(1992). See OCGA § 17-5-30 (“A defendant aggrieved by an unlawful search
and seizure may move the court . . . to suppress as evidence anything so
obtained on the grounds that . . . [t]he search and seizure with a warrant was
illegal because . . . there was not probable cause for the issuance of the warrant.
. . . If the motion is granted the property . . . shall not be admissible in evidence
against the movant in any trial.”). Recently, however, this Court found the
reasoning of Gary to be “unsound” and concluded that OCGA § 17-5-30
“establishes a procedure for applying the exclusionary rule but does not itself
require the suppression of any evidence.” Mobley v. State, 307 Ga. 59, 75 (4) (a)
(834 SE2d 785) (2019). We “disavow[ed]” Gary’s reasoning and held that Gary
“does not extend to any context other than the reliance of an officer in good
faith upon the validity of a search warrant[.]” Mobley, 307 Ga. at 75 (4) (a) (not
reaching the question whether the specific holdings of Gary and its progeny
should be squarely overruled, “a question that would require a consideration
of the doctrine of stare decisis” (citation omitted)). Thus, Gary does not
“categorically foreclose the application of any other exception to the
exclusionary rule.” Id. at 75-76 (4) (a).
                                         27
violations.” Id. at 350 (II) (B) (citation and punctuation omitted). The

Court explained that,

         [u]nless a statute is clearly unconstitutional, an officer
         cannot be expected to question the judgment of the
         legislature that passed the law. If the statute is
         subsequently declared unconstitutional, excluding
         evidence obtained pursuant to it prior to such a judicial
         declaration will not deter future Fourth Amendment
         violations by an officer who has simply fulfilled his
         responsibility to enforce the statute as written.

Id. at 349-350 (II) (B). The Court held that the exclusionary rule did

not apply to evidence seized in objective good faith reliance on “a

statute that appeared legitimately to allow a warrantless

administrative search” of certain licensed businesses. Id. at 360

(III).

         More recently, in Davis, the United States Supreme Court

applied the same reasoning to searches conducted in objectively

reasonable reliance on binding appellate precedent that is later

overruled. See 564 U. S. at 231. The Court held that such evidence

is not subject to the exclusionary rule because “[a]n officer who

conducts a search in reliance on binding appellate precedent does no


                                    28
more than act as a reasonable officer would and should act under

the circumstances.” Id. at 241 (III).

     In this case, we have concluded that the detective’s

communications with MetroPCS supported a good-faith belief that

the company’s voluntary disclosure of the requested records was

authorized under the SCA, 18 USC § 2702 (c) (4). We further

conclude that it was objectively reasonable for a law enforcement

officer in good faith to rely on this statutory mechanism to request

records for a cell phone number used by a murder suspect where the

request was made less than a day after the murder while the effort

to apprehend the suspect was ongoing. See Krull, 480 U. S. at 360

(III); Registe, 292 Ga. at 157; see also United States v. Wilson, 960

F3d 136, 146 (III) (B) (3d Cir. 2020) (holding exclusionary rule did

not apply to historical CSLI obtained with a court order applied for

in objectively reasonable good faith reliance on 18 USC § 2703 (c) (1)

(B) and (d) of the SCA before the statute was abrogated by

Carpenter); United States v. Curtis, 901 F3d 846, 849 (I) (7th Cir.

2018) (same). In addition, we conclude that it was objectively

                                  29
reasonable for a law enforcement officer in good faith to rely on

binding appellate precedent that at the time did not recognize any

reasonable expectation of privacy in non-content cell phone records

contained in the business records of a third party and did not

differentiate between historical CSLI and other types of non-content

cell phone records, as the Carpenter Court would later do. See Davis,

564 U. S. at 241 (III); Reed v. State, 307 Ga. 527, 535 (2) (b) (837

SE2d 272) (2019); Registe, 292 Ga. at 156-157; Smarr v. State, 317

Ga. App. 584, 593 (3) (c) (732 SE2d 110) (2012); see also United

States v. Zodhiates, 901 F3d 137, 143 (I) (2d Cir. 2018) (holding

exclusionary rule did not apply to historical CSLI obtained in

objectively reasonable good faith reliance on appellate precedent

establishing the third-party doctrine before the Carpenter Court

held that a warrant is required for at least seven days of historical

CSLI despite the fact that the information is held by a third party).18


      18  In Mobley, we made clear that “the Davis good faith exception is
distinct from the Leon good faith exception and is not, therefore, foreclosed by
the specific holding of Gary.” 307 Ga. at 78 n.24. We therefore disapprove the
Court of Appeals’ decision in Brown v. State, 330 Ga. App. 488, 492-493 & n.6

                                      30
      Because, at the time of Lofton’s trial, a federal statute, 18 USC

§ 2702 (c) (4), and binding appellate precedent, Registe, 292 Ga. at

157, authorized the investigatory conduct at issue, reversing the

trial court’s decision in this case would have little, if any, additional

benefit in deterring future violations of the privacy interests

recognized in Carpenter. We therefore affirm the trial court’s ruling.

See Davis, 564 U. S. at 241 (III); Krull, 480 U. S. at 360 (III).

      3. Lofton contends that he received ineffective assistance of

counsel. Specifically, he argues that, at the hearing on his motion to

suppress, his counsel was constitutionally deficient for failing to

adequately     cross-examine      the      detective   about   the    exigent

circumstances that allegedly existed when she initially obtained

Lofton’s MetroPCS phone records without a warrant. He argues that

the supposed inadequacy of counsel’s cross-examination of the

detective prejudiced him by causing the trial court to deny his



(2) (767 SE2d 299) (2014) (citing Gary and holding that Georgia does not
recognize the Davis good faith exception to the exclusionary rule and that,
therefore, a warrantless search incident to a DUI arrest of the arrestee’s cell
phone to view photos stored on the phone “was illegal regardless whether the
officer reasonably relied on existing case law” (footnote omitted)).
                                      31
motion to suppress.

     To succeed on his claim of ineffective assistance of counsel,

Lofton “must prove both that his lawyer’s performance was

professionally deficient and that he was prejudiced as a result.”

Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325) (2020) (citation

and punctuation omitted). See also Strickland v. Washington, 466

U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).

     The scope of cross-examination is grounded in trial tactics
     and strategy, and will rarely constitute ineffective
     assistance of counsel. More specifically, the extent of
     cross-examination is a strategic and tactical decision.
     Decisions about cross-examination do not amount to
     deficient performance unless they are so unreasonable
     that no competent attorney would have made them under
     similar circumstances.

Gaston v. State, 307 Ga. 634, 642 (2) (d) (837 SE2d 808) (2020)

(citations and punctuation omitted).

     The transcript of the hearing on Lofton’s motion to suppress

shows that counsel questioned the detective at length and elicited

testimony about the circumstances that existed when she requested

the records from MetroPCS. Lofton fails to specify any question or


                                 32
line of inquiry that counsel failed to pursue. As a result, he has not

established a reasonable probability that the result of his trial would

have been different absent counsel’s alleged deficiencies. See

Wainwright v. State, 305 Ga. 63, 69 (3) (823 SE2d 749) (2019) (Mere

speculation that counsel failed to properly cross-examine witness is

not enough to show prejudice on ineffective assistance of counsel

claim.); Baker v. State, 293 Ga. 811, 815 (3) (750 SE2d 137) (2013)

(same). And “if an appellant fails to meet his or her burden of

proving either prong of the Strickland test, the reviewing court does

not have to examine the other prong.” Wainwright, 305 Ga. at 69 (3)

(citation and punctuation omitted). Lofton’s claim of ineffective

assistance of counsel therefore fails.

     4. Lofton contends that the trial court erred in allowing certain

exhibits to go out with the deliberating jury in violation of the

continuing witness rule. Specifically, he contends that the trial court

erred in sending out State’s Exhibit 15, a six-person photographic

lineup on which Brown circled Lofton’s photo and wrote “Lil Tony”

under the photo, and State’s Exhibit 14, a form that Brown filled out

                                  33
after viewing the lineup, including an indication that it took him 10

seconds or less to pick out the person who committed the crime and

that he knew the person he identified as Lil Tony. Lofton also

contends that the trial court erred in sending out MetroPCS phone

records that included subscriber information and call detail records

with tower location information for the period October 1 through 20,

2013, for Lofton’s phone (State’s Exhibit 42), Eatmon’s phone

(State’s Exhibit 43), and Brown’s phone (State’s Exhibit 44). Finally,

Lofton contends that the trial court erred in sending out State’s

Exhibit 45B, a printout of text messages for Lofton’s phone for the

day of the shooting, and State’s Exhibit 46, a list of cell phone towers

in the Atlanta area with the street address of each tower.

      The continuing witness rule of Georgia law “regulates which

documents or recordings go into the jury room with the jury during

deliberations and which ones do not.” Clark v. State, 296 Ga. 543,

548-549 (4) (769 SE2d 376) (2015). As we have explained,

     the continuing witness objection is based on the notion
     that written testimony is heard by the jury when read
     from the witness stand just as oral testimony is heard

                                  34
     when given from the witness stand. But, it is unfair and
     places undue emphasis on written testimony for the
     writing to go out with the jury to be read again during
     deliberations, while oral testimony is received but once.
     The types of documents that have been held subject to the
     rule include affidavits, depositions, written confessions,
     statements, and dying declarations.

Keller v. State, 308 Ga. 492, 505-506 (9) (842 SE2d 22) (2020)

(citation and punctuation omitted). See also Rainwater v. State, 300

Ga. 800, 802 n.3 (2) (797 SE2d 889) (2017) (noting that the

continuing witness rule was unaffected by the enactment of the

current Evidence Code).

     Here, none of the challenged exhibits were written testimony,

nor did they derive their evidentiary value solely from the credibility

of the makers of the exhibits. See Clarke v. State, 308 Ga. 630, 636

(4) (842 SE2d 863) (2020); Keller, 308 Ga. at 505-506 (9). Instead,

they were original documentary evidence and were properly allowed

to go out with the jury. See Clarke, 308 Ga. at 636 (4); Keller, 308

Ga. at 505-506 (9); Wilkins v. State, 291 Ga. 483, 484 (6) (731 SE2d

346) (2012).

     5. Lofton contends that he received ineffective assistance of

                                  35
counsel after the trial court denied his request, made just before jury

selection, to discharge his court-appointed counsel and to replace

appointed counsel with retained counsel. After hearing Lofton’s

request, the trial court also agreed to hear from Lofton’s father on

the issue. The trial court stated that, because Lofton had filed a

demand for a speedy trial and had known of the date set for trial

with adequate time to retain new counsel, the court would not grant

a continuance for that purpose. See Lane v. State, 299 Ga. 791, 794

(2) (792 SE2d 378) (2016) (“[W]hile every defendant has the right to

hire counsel, a defendant must use reasonable diligence in obtaining

retained counsel. A defendant may not use a request for change of

counsel as a dilatory tactic.” (citations and punctuation omitted)).

The trial court then allowed Lofton and his father to confer privately

with Lofton’s appointed counsel. After that private conference,

Lofton abandoned his request to discharge his appointed counsel.

     The assistance of counsel is not ineffective solely because the

client would have preferred a different lawyer. See McCullough v.

State, 304 Ga. 290, 296 (2) (b) (818 SE2d 520) (2018). And Lofton did

                                  36
not preserve for our review any error in the trial court’s declining

his request to change counsel because he withdrew his request. See

Phillips v. State, 279 Ga. 704, 705 (1) (620 SE2d 367) (2005);

Anderson v. State, 276 Ga. App. 216, 217 (1) (622 SE2d 898) (2005).

     6. Lofton contends that the State exercised its jury strikes with

racially discriminatory intent and that the trial court erred in

rejecting his challenge to the jury under Batson v. Kentucky, 476 U.

S. 79 (106 SCt 1712, 90 LE2d 69) (1986). Specifically, Lofton

contends that the State, which used nine peremptory jury strikes

and struck seven African American jurors, exercised its jury strikes

in a racially discriminatory manner.

     A Batson challenge involves three steps:

     (1) the opponent of a peremptory challenge must make a
     prima facie showing of racial discrimination; (2) the
     proponent of the strike must then provide a race-neutral
     explanation for the strike; and (3) the court must decide
     whether the opponent of the strike has proven the
     proponent’s discriminatory intent.

Thomas v. State, 309 Ga. 488, 490 (847 SE2d 147) (2020) (citation

omitted). “[A] trial court’s finding as to whether the opponent of a


                                 37
strike has proven discriminatory intent is entitled to great deference

and will not be disturbed unless clearly erroneous.” Jackson v. State,

291 Ga. 25, 26-27 (2) (727 SE2d 120) (2012) (citations omitted).

     In this case, the threshold issue of whether Lofton made a

prima facie showing of racial discrimination is moot, because the

State, on the record, offered race-neutral explanations for each of

the challenged strikes. See Lord v. State, 304 Ga. 532, 536 (3) (820

SE2d 16) (2018); see also Pye v. State, 269 Ga. 779, 780 (1) (505 SE2d

4) (1998) (“The record shows that the State gave reasons for [each of

the challenged peremptory strikes], rendering the necessity of a

preliminary showing of prima facie discrimination moot.” (citation

omitted)). “At step two [of a Batson analysis], the proponent of the

strike need only articulate a facially race-neutral reason for the

strike. Step two does not demand an explanation that is persuasive,

or even plausible.” Taylor v. State, 303 Ga. 624, 631-632 (3) (814

SE2d 353) (2018) (citations and punctuation omitted). “[B]oth the

United States Supreme Court and this Court have squarely held

that a peremptory strike based upon a juror’s demeanor during voir

                                 38
dire may be race-neutral at Batson step two.” Id. (citations and

punctuation      omitted).    Here,     the   State     gave    race-neutral

explanations for the strikes. See Myrick v. State, 306 Ga. 894, 899

(2) (b) (834 SE2d 542) (2019).19

      “At the third step of the Batson analysis, the trial court makes

credibility determinations, evaluates the persuasiveness of the

strike opponent’s prima facie showing and the explanations given by

the strike proponent, and examines all other circumstances that

bear upon the issue of racial animosity.” Thomas, 309 Ga. at 491 (2).

A trial court’s finding that the prosecutor’s reasons for the




      19 The State explained that prospective Juror Number 8 was removed
because the juror felt that she would have a “hard time disassociating” this
case from her negative feelings about her daughter serving as a State trooper;
Juror Number 11 was “vague” in her responses during voir dire and the
prosecutor believed that the juror was not forthcoming about her feelings
regarding her father’s substance abuse problems; Juror Number 16 was
extremely familiar with the locations of the gas stations and apartments where
events at issue took place; Juror Number 25 did not seem to understand the
questions posed during voir dire and was not forthcoming in her responses;
Juror Number 29 seemed indifferent to his children and also seemed deceitful
in his answers about his familiarity with the incident locations; Juror Numbers
38 and 39 were not objectionable to the prosecutor, but she struck them “purely
strategically” because she felt Juror Number 40 would be particularly
sympathetic to the victim because her brother also had abused prescription
drugs.
                                      39
peremptory strikes were not racially motivated, “like most Batson

decisions, turn[s] largely on an evaluation of the credibility of the

attorney who made the strikes, and evaluation of the prosecutor’s

state of mind based on demeanor and credibility lies peculiarly

within a trial judge’s province.” Johnson v. State, 302 Ga. 774, 780

(3) (b) (809 SE2d 769) (2018) (citations and punctuation omitted).

We discern no basis for concluding that the trial court’s

determination that Lofton failed to prove discriminatory intent is

clearly erroneous; therefore, we affirm. See Taylor, 303 Ga. at 633-

635 (3); Johnson, 302 Ga. at 782 (3).

      7. Lofton contends that the trial court erred in denying his

request that the jury be instructed that the testimony of an

accomplice alone is not sufficient to warrant a conviction but must

be corroborated by other evidence of the guilt of the accused.20

Specifically, Lofton argues that Eatmon was an accomplice in the


      20 See OCGA § 24-14-8 (In “prosecutions for . . . felony cases where the
only witness is an accomplice, the testimony of a single witness shall not be
sufficient [to establish a fact]. Nevertheless, corroborating circumstances may
dispense with the necessity for the testimony of a second witness” in such
cases.).
                                      40
“string of crimes” on the day of the shooting, in that he

“orchestrated” the drug deal.

     “In considering whether a witness is an accomplice, we look to

the definition of party to a crime found in OCGA § 16-2-20.” Walter

v. State, 304 Ga. 760, 766 (3) (b) (822 SE2d 266 (2018) (citation

omitted). Under that statute, “[a] person is concerned in the

commission of a crime . . . if he . . . [i]ntentionally aids or abets in

the commission of the crime; or [i]ntentionally advises [or]

encourages . . . another to commit the crime.” OCGA § 16-2-20 (b)

(3), (4). “Mere presence at the commission of a crime does not render

the spectator an accomplice.” Christian v. State, 277 Ga. 775, 776 (1)

(596 SE2d 6) (2004) (footnote omitted). Rather, there must be some

evidence showing that the person “shared a common criminal intent

to commit the crimes in question with the actual perpetrators.”

Higuera-Guiterrez v. State, 298 Ga. 41, 43 (2) (779 SE2d 288) (2015)

(citation omitted). Criminal intent may be inferred from the person’s

conduct before, during, and after the crimes. Id.

     “There must be at least slight evidence produced at trial to

                                  41
authorize a jury instruction, and whether the evidence presented is

sufficient to authorize a charge is a question of law.” Rammage v.

State, 307 Ga. 763, 767 (4) (838 SE2d 249) (2020) (citation and

punctuation omitted). See also Barron v. State, 297 Ga. 706, 708 (2)

(777 SE2d 435) (2015) (“[A] request to charge has to be legal, apt,

and precisely adjusted to some principle involved in the case and be

authorized by the evidence.” (citation and punctuation omitted)).

Thus, it is not error to fail to give a requested jury instruction

regarding the corroboration required for accomplice testimony

where there is no evidence that the witness shared a common

criminal intent with the defendant to commit the crimes charged.

See Yeomans v. State, 229 Ga. 488, 493 (5) (192 SE2d 362) (1972);

Parks v. State, 294 Ga. App. 646, 651 (7) (669 SE2d 684) (2008); see

also Thornton v. State, 307 Ga. 121, 125 (2) (c) (834 SE2d 814) (2019)

(no obvious error in failing sua sponte to instruct the jury on

corroboration of accomplice testimony where there was no evidence

that a witness shared a common criminal intent with the defendant

in shooting the murder victim); Stripling v. State, 304 Ga. 131, 136

                                 42
(2) (816 SE2d 663) (2018) (same).

     Although there was evidence in this case that Eatmon shared

a common criminal intent with Lofton for the drug deal to take place,

there was no evidence that Eatmon shared a common criminal

intent with Lofton for any of the crimes charged: murder, armed

robbery, aggravated assault, and possession of a firearm. There was

no evidence that Eatmon even knew Lofton was armed and prepared

to shoot Eatmon’s associate, Walker. And Eatmon’s conduct after

the shooting did not aid or abet Lofton in the crimes charged; rather,

Eatmon drove Walker to the hospital, and his cooperation with the

detectives and with the prosecutors directly contributed to Lofton’s

apprehension and conviction. The trial court did not err in refusing

to instruct the jury to determine whether Eatmon was an accomplice

or in failing to charge the jury on the corroboration necessary for the

testimony of an accomplice. See Yeomans, 229 Ga. at 493 (5); Parks,

294 Ga. App. at 651 (7).

     Judgment affirmed. All the Justices concur, except Melton, C.
J., who concurs in judgment only in Division 7.


                                  43


---

310 Ga. 770
FINAL COPY

                  S20A1101. LOFTON v. THE STATE.


      ELLINGTON, Justice.

      A jury found Hakim Lofton guilty of malice murder and

possession of a firearm in connection with the shooting death of

Jason Walker.1 On appeal, Lofton challenges the sufficiency of the

evidence and contends that the trial court erred in admitting cell-

site location information that was obtained without a warrant, in



      1 The shooting occurred on October 10, 2013. A Fulton County grand jury

returned an indictment on January 14, 2014, charging Lofton with malice
murder (Count 1), felony murder predicated on armed robbery (Count 2), felony
murder predicated on aggravated assault (Count 3), armed robbery (Count 4),
aggravated assault (Count 5), and possession of a firearm during the
commission of a felony (Count 6) predicated on Counts 1 through 5. At a jury
trial commencing on September 22, 2014, Lofton was found not guilty on
Counts 2 and 4 and guilty on the remaining counts. By judgment entered on
September 30, 2014, the trial court sentenced Lofton to life in prison for
murder (Count 1) and five years in prison for the firearm charge (Count 6) to
run consecutively. Count 5 merged with Count 1. The judgment indicated that
Count 3 also merged with Count 1, although it was actually vacated by
operation of law. See Bradley v. State, 305 Ga. 857, 858 n.1 (828 SE2d 322)
(2019). Lofton filed a timely motion for a new trial, which he amended on June
6, 2016, and April 22, 2019. After a hearing, the trial court denied the motion
for a new trial on August 4, 2019. Lofton filed a timely notice of appeal, and his
appeal was docketed in this Court to the August 2020 term and submitted for
a decision on the briefs.
failing to instruct the jury regarding the corroboration required for

accomplice testimony, in allowing certain exhibits to go out with the

jury, and in rejecting his claim that there was racial discrimination

in jury selection. Lofton also contends that he received ineffective

assistance of counsel. For the reasons explained below, we affirm.

     1. Lofton contends that the evidence that he was the person

who shot Walker was entirely circumstantial and that it was

insufficient   to   prove   identity   beyond   a   reasonable   doubt.

Specifically, he argues that the only eyewitness to the shooting,

Joseph Eatmon, lacked credibility and, at any rate, was unable to

positively identify him as the shooter. The rest of the State’s

evidence, Lofton argues, can only prove that he was associated with

Eatmon and Walker and that he was in the area of the crimes when

they happened.

     When reviewing the sufficiency of the evidence as a
     matter of constitutional due process, we view the evidence
     in the light most favorable to the verdicts, see Jackson v.
     Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560)
     (1979), and do not resolve conflicts in the evidence,
     leaving those within the province of the jury. In addition,
     as a matter of Georgia statutory law, where a conviction

                                   2
     is based on circumstantial evidence, . . . the evidence must
     “not only be consistent with the hypothesis of guilt, but
     shall exclude every other reasonable hypothesis save that
     of the guilt of the accused.” OCGA § 24-14-6. Whether an
     alternative hypothesis is reasonable or whether the
     circumstantial evidence excludes every reasonable
     hypothesis save that of guilt is left to the jury, and this
     Court will not disturb that finding unless it is
     insupportable as a matter of law.

Schell v. State, 310 Ga. ___, ___ (___ SE2d ___) (2020) (citations and

punctuation omitted).

     Viewed in this manner, the evidence shows the following. In

2013, Walker frequently asked his friend, Eatmon, to connect him

with someone who would sell him Xanax tablets, and Eatmon

brokered transactions for Walker approximately 25 to 30 times. On

October 8, 2013, Eatmon brokered such a transaction with Cedric

Brown. Walker and Eatmon met Brown at a QuikTrip station on

Upper Riverdale Road, where Walker bought approximately 30

tablets of Xanax that had been prescribed to Brown’s girlfriend’s

mother.

     The next day, October 9, Walker wanted to buy a much larger

quantity of Xanax. Eatmon called Brown, and Brown said that he

                                  3
might know someone who could fill the order. Brown called Lofton,

whom he knew as Lil Tony and who lived in the same area of

Riverdale as Brown. Brown told Lofton about Eatmon’s request and

asked if he could give Eatmon Lofton’s number. Lofton agreed, and,

after Brown gave Eatmon the number, Brown had no more

involvement in that sale. Eatmon called Lofton that evening and set

up a meeting for the transaction the following day.

     Eatmon and Lofton agreed to meet at the College Park transit

station between 7:00 and 8:00 a.m. on October 10. Walker picked up

Eatmon in his white Honda between 7:30 and 7:45 a.m. Lofton called

Eatmon while Eatmon and Walker were en route to the College Park

station, said he was running late, and changed the meeting place to

a bus stop on Washington Road near Camp Creek Parkway. Eatmon

told Lofton they were near that intersection and would pull into the

Chevron station near the bus stop.

     The bus arrived a few minutes later, and a solitary passenger

got off. Based on their recent phone calls, Eatmon deduced that the

passenger was Lil Tony and waved him over to Walker’s car. Lil

                                 4
Tony got into the back seat behind Eatmon and told Walker to

continue on Washington Road to an apartment complex off of

Spanish Trail. Walker stopped at a Chevron station near the

apartments, and Eatmon got out and went into the convenience

store. When Eatmon came out of the store, he saw that Walker had

parked at the apartments, and Eatmon followed on foot. As Eatmon

approached Walker’s car, he saw Lil Tony exit the car on the

passenger side, pull a gun out of his jacket, shoot into the car, and

then run away. When Eatmon reached the car, Walker told Eatmon

that he had been shot and asked Eatmon to take him to the hospital.

Walker moved into the passenger seat, Eatmon got into the driver’s

seat, and Eatmon called 911 as he drove to South Fulton Hospital.

During the drive, Walker asked Eatmon not to tell anyone about the

drug deal, because he did not want his family to know about his

continuing drug addiction.

     When Eatmon and Walker reached the hospital, they were met

by East Point police officers. Walker was taken inside for treatment,

and Eatmon spoke briefly with two East Point police department

                                 5
detectives at the hospital and then went with them to the police

station for questioning. Eatmon told the detectives that he had been

taking Walker to see a prostitute at a motel and that Walker was

shot in a robbery at the Chevron station on Washington Road near

Camp Creek Parkway. Eatmon signed a written summary of his

statement.

     Walker died at the hospital at about 5:00 p.m. on the day he

was shot. After learning that Walker did not survive, Eatmon told

the detectives that the parts of his previous oral and written

statements about the prostitute and about Walker being shot in a

robbery had been lies, which he told because Walker had asked him

to conceal his drug habit from his family. Eatmon said that he and

Walker had actually met a drug dealer so Walker could purchase

Xanax, and that the dealer shot Walker. Eatmon gave the actual

location for the shooting. He told the detectives that the only name

he had for the dealer was “Lil Tony” and gave them the phone

number he had used to communicate with Lil Tony. Eatmon also

informed them that he was introduced to Lil Tony through Brown,

                                 6
and he gave the detectives Brown’s phone number.

     That day, the detectives interviewed Brown at his home in

Riverdale, and he told them about giving Lil Tony’s phone number

to Eatmon for the drug deal, which was the same phone number

Eatmon used to contact Lil Tony. Brown told the detectives that Lil

Tony lived near him, on Ridge Trail, in a house he described. Based

on the information that Brown gave, the detectives were able to

determine Lil Tony’s address on Ridge Trail. Because that address

was in Clayton County, the detectives contacted the Clayton County

police department for information about the residents. The

detectives learned the legal name of Lil Tony, and the Clayton

County police provided a booking photo of Lofton.

     The detectives prepared a photo lineup that included Lofton’s

booking photo, and they showed it to Brown on October 14. He

immediately and positively identified Lofton as the person he knew

as Lil Tony. The detectives also showed Eatmon a photo lineup, and

Eatmon picked Lofton’s picture, although his identification was

uncertain. The next day, the detective applied for a warrant to arrest

                                  7
Lofton for Walker’s murder. Lofton was arrested by United States

marshals at his home on October 16. That same day, the detectives

and other officers executed a search warrant for Lofton’s home. They

found more than seventy .22-caliber long rifle hollow-point rounds

and three .22-caliber shell casings in Lofton’s bedroom, which was

the same type of bullet that killed Walker and was removed from his

body during his autopsy. No firearm was found in Lofton’s home.

     At trial, Brown identified Lofton as the drug dealer whom he

knew as Lil Tony and whose phone number he gave to Eatmon for

the drug deal. Eatmon could not specifically identify Lofton as the

drug dealer Lil Tony whom he met minutes before he saw the dealer

shoot Walker, but he described Lil Tony as a black male, in his early

20s, 5´ 8˝ to 5´ 9˝ tall, who was wearing a black jacket, blue jeans,

and a hoodie, with the hood pulled up when Eatmon met him.

Eatmon testified that he had just “glanced at [Lil Tony’s] face” when

he and Walker picked him up at the Chevron station on the day of

the shooting. He testified that during the photo lineup he chose the

photo of the one who looked “similar” to Lil Tony.

                                 8
     The State introduced MetroPCS records, including subscriber

information and call logs that included cell-site location information,

for cell phones used by Eatmon, Brown, and Lofton. The phone

records, together with the testimony of a records custodian who was

qualified as an expert in MetroPCS’s recordkeeping practices,

showed that Eatmon’s and Brown’s phones exchanged calls on

October 8 and 9, and that, at the same time on October 8, both of

their phones connected to a cell tower near the QuikTrip station on

Upper Riverdale Road where they met for the drug deal that day.

The phone records also showed that, after Eatmon’s phone called

Brown’s phone on October 9, Brown’s phone called Lofton’s phone,

then Brown’s phone called Eatmon’s phone, then Eatmon’s phone

called Lofton’s phone. Lofton’s phone exchanged calls with Eatmon’s

phone and with Brown’s phone additional times that night. The

phone records showed that on October 10, the day of the shooting,

Lofton’s phone called Eatmon’s phone at 7:11 a.m., and they

exchanged calls an additional eight times over the next ninety

minutes; cell-site location information showed that Lofton’s phone

                                  9
was on the move during that interval. At the time of their last call,

8:40 a.m., Lofton’s phone called Eatmon’s phone, and the call lasted

less than one minute; both Lofton’s phone and Eatmon’s phone

connected to Sector 3 of Tower 109, located at 3485 Desert Drive in

East Point, which is near the Chevron station where Walker and

Eatmon picked up Lofton. At 8:49 a.m., Lofton’s phone connected to

Sector 2 of Tower 422, located at 4399 S. Commerce Drive in East

Point, which was the nearest cell site to where Walker was fatally

shot. Two minutes later, at 8:51 a.m., Eatmon’s phone called 911.

The nearest cell site at the beginning of the call was also Sector 2 of

Tower 422. By the end of the 911 call, Eatmon, while driving Walker

to the hospital, was back in range of Sector 3 of Tower 109.

     Assuming without deciding that the evidence of Lofton’s guilt

was entirely circumstantial, the State presented sufficient evidence

to support the convictions, despite the inability of the only

eyewitness to the shooting, Eatmon, to positively identify him and




                                  10
despite any purported deficits in Eatmon’s credibility.2 Brown

positively identified Lofton as the drug dealer he knew as Lil Tony;

his information led detectives to Lofton’s residence; and Brown’s

testimony connected Lofton to Eatmon and to the October 10

planned drug deal involving Walker. Phone records for Lofton,

Eatmon, and Brown supported the testimony of Eatmon and Brown

about the communications among them on the day of the shooting

and the days before and after. And the MetroPCS records placed

Lofton’s phone at the location of the shooting at the time of the

shooting. Thus, the evidence presented at trial was both sufficient

to allow a rational jury to find beyond a reasonable doubt that Lofton

was guilty of the crimes for which he was convicted, as required by

due process, and to reject any hypothesis save that of his guilt for



      2 At trial, Lofton argued during closing argument that Eatmon was not

credible, based on several factors: Eatmon was a convicted felon; he lied during
the trial about his criminal past; he admitted that he initially lied to the
detectives about details of the incident; the security video from the first
Chevron station did not confirm his testimony (because it did not show a white
Honda in the parking lot on the morning of October 10); and no forensic
evidence confirmed his testimony about the location of the shooting. Lofton also
argued that the investigation was flawed in that the detectives did not treat
Eatmon, Brown, or others as potential suspects.
                                      11
those crimes, as required by OCGA § 24-14-6. See Payne v. State,

273 Ga. 317, 318 (1) (540 SE2d 191) (2001) (evidence sufficient to

authorize rational trier of fact to find accused guilty beyond a

reasonable doubt of murder and possession of a knife and to exclude

every reasonable inference and hypothesis except guilt of accused,

despite lack of any eyewitness testimony that defendant stabbed

victim or that he possessed a knife).

     2. Lofton contends that the trial court erred in denying his

motion to suppress his cell phone records and all of the evidence

derived from those phone records. At the hearing on Lofton’s motion

to suppress, one of the East Point detectives who investigated the

shooting testified as follows. About 12 hours after the shooting, she

spoke with a MetroPCS representative and told the representative

that there had been a murder that morning, that the detective had

a phone number for the suspect (the number Eatmon and Brown

used to contact the drug dealer they knew as Lil Tony), and that she

needed information from the suspect’s account. The detective

explained that there was a witness who was known to the suspect

                                 12
and could be harmed while the suspect was still at large. The

MetroPCS representative e-mailed an “Exigent Circumstance

Request” form for the detective to complete. On the request form,

the detective requested subscriber data for the target phone number

and asked for call-detail records, including cell sites,3 for the day of

the shooting and the three previous days. The detective described

the “nature of the emergency” by stating that a murder victim “had

contact with his murderer through the target number.” The form

included the statement, “I hereby attest that the information

provided above, to the best of my knowledge, is true and accurate

and that . . . an emergency situation exists that involves . . .




      3 A “cell site” typically consists of a set of either three or six directional

radio antennas mounted on a tower, light post, flagpole, church steeple, or side
of a building. See Carpenter v. United States, 585 U. S. __, __ (I) (A) (138 SCt
2206, 2211, 201 LE2d 507) (2018). Unless powered off, a cell phone
continuously scans its environment looking for the strongest signal, which
generally comes from the nearest cell site. See id. Each time a phone connects
to a cell site, the connection generates a time-stamped digital record in the
service provider’s account records that includes the particular cell site and the
specific antenna activated (“sector” information); such records are known as
cell-site location information. See id. Service providers generally maintain
account-specific data, including cell-site location information, for long periods
of time. See id. at __ (III) (A) (138 SCt at 2218) (wireless carriers “currently
maintain records for up to five years”).
                                        13
immediate danger of death or serious bodily injury to a person[.]”

      First, Lofton argues that the detective’s initial, warrantless

acquisition of his cell phone records on the day of the shooting,

including four days of historical cell-site location information

(“CSLI”), was a search under the Fourth Amendment, because a cell

phone user has a reasonable expectation of privacy in historical

CSLI for his phone. Second, Lofton argues that the trial court erred

in finding that the warrantless search of his cell phone records was

justified by exigent circumstances, because the detective had no

case-specific information that the then-unidentified shooter was

fleeing, had threatened to harm any person, or was actively

destroying evidence. Lofton argues that the exclusionary rule

therefore requires suppression of the initial tranche of his cell phone

records as well as suppression of all the evidence derived from those

records as “fruit of the poisonous tree.”4 Putting aside the first and


      4 In the affidavit supporting the application for an arrest warrant, the

detective stated that Lofton’s phone records showed contact with Eatmon
before the shooting and that cell tower sites indicated that Lofton’s phone was
in the area at the time of the shooting. She also summarized the witnesses’

                                      14
second elements of Lofton’s argument, we conclude that the

exclusionary rule does not apply to the evidence at issue. Therefore,

reversal is not required.

      At the time of Lofton’s trial in 2014, no appellate precedent

binding in Georgia courts held that a request or demand by a

governmental entity to a cell phone service provider that the

provider produce its records related to a customer’s account

constituted a search under the Fourth Amendment.5 Under then-



statements that Brown referred Eatmon to Lofton as a source for the drugs
Walker wanted to buy and stated that Brown positively identified Lofton in a
photo lineup as the person he had referred Eatmon to for the drug deal. After
Lofton was arrested, the detective used the same information in an affidavit
supporting her application for a warrant to search Lofton’s home. And, weeks
later, she used the same information in affidavits for search warrants for
MetroPCS records, including the content of text messages, for Lofton’s,
Eatmon’s, and Brown’s phones for October 1 through 20, 2013.
       5 See Reed v. State, 307 Ga. 527, 535 (2) (b) (837 SE2d 272) (2019) (Trial

counsel was not ineffective in failing to seek to suppress the defendant’s cell
phone records that included CSLI, which were obtained pursuant to a court
order, because at the time of defendant’s 2017 trial, “Georgia appellate
precedent held that a search warrant was not required to obtain CSLI.”
(citation omitted)); Smarr v. State, 317 Ga. App. 584, 593 (3) (c) (732 SE2d 110)
(2012) (Trial counsel was not ineffective in failing to seek to suppress the
defendant’s cell phone records that included CSLI, which were obtained
pursuant to a court order, on the basis that the records were obtained without
statutory authority and in violation of the defendant’s Fourth Amendment
rights against unreasonable searches and seizures, because a motion to
suppress “would not have been successful based upon the law as it existed at

                                       15
existing constitutional doctrine, a person generally lacked a

reasonable expectation of privacy in business records owned and

maintained by a third-party business.6 The government’s access to




the time of the trial” in 2010.).
       6 See Smith v. Maryland, 442 U. S. 735, 742-746 (99 SCt 2577, 61 LE2d

220) (1979) (holding that a landline telephone customer has no reasonable
expectation of privacy in a record of the outgoing phone numbers dialed on his
telephone because he voluntarily conveys such information to the telephone
company); United States v. Miller, 425 U. S. 435, 442-443 (96 SCt 1619, 48
LE2d 71) (1976) (holding that a bank customer has no reasonable expectation
of privacy in records held by the bank, such as canceled checks, deposit slips,
and monthly statements, because he voluntarily conveys information about his
financial transactions to the bank).
       In support of Lofton’s motion to suppress, he cited a 2014 Eleventh
Circuit panel decision holding that the Smith and Miller third-party doctrine
holdings did not extend to historical CSLI obtained with a court order issued
under the SCA, 18 USC § 2703 (c) (1) (B), (d); that “cell site location information
is within the subscriber’s reasonable expectation of privacy”; and that “[t]he
obtaining of that data without a warrant is a Fourth Amendment violation.”
United States v. Davis, 754 F3d 1205, 1217 (I) (11th Cir. 2014) (“Davis I”). That
decision was not binding in Georgia courts. See State v. Rosenbaum, 305 Ga.
442, 449-450 (2) (826 SE2d 18) (2019) (Eleventh Circuit decisions are not
binding in Georgia courts, although this Court can consider them as persuasive
authority.); Deen v. Stevens, 287 Ga. 597, 601 (2) (b) (698 SE2d 321) (2010)
(Eleventh Circuit decisions are not binding in Georgia courts, even on federal
law questions, although this Court can consider them as persuasive
authority.). Moreover, before Lofton’s trial began, the Eleventh Circuit vacated
Davis I for rehearing en banc, see United States v. Davis, 573 Fed. Appx. 925
(11th Cir. 2014), and later held that the government’s obtaining a court order
under the SCA for the production of the cell phone provider’s business records
did not constitute a search and did not violate the subscriber’s Fourth
Amendment rights. See United States v. Davis, 785 F3d 498, 507-513 (III) (11th
Cir. 2015).

                                        16
such records was not unfettered, however, but was governed by

federal and state statutes. Title II of the Electronic Communications

Privacy Act of 1986, commonly called the Stored Communications

Act (“SCA”),7 provides some privacy protection for the content of

electronic communications and for non-content or transactional

records maintained by providers of electronic communications

services. The SCA protects the privacy of electronic communications

under two paths: by limiting providers’ ability to voluntarily disclose

a user’s information, in 18 USC § 2702, and by specifying the

circumstances in which the government can compel providers to

disclose their users’ information, in 18 USC § 2703. See Alexander

v. Verizon Wireless Svcs., 875 F3d 243, 250 (III) (5th Cir. 2017);

Registe v. State, 292 Ga. 154, 155-156 (734 SE2d 19) (2012).8


     7 Title II is codified at 18 USC §§ 2701 through 2710. We note that the

provisions of the SCA discussed herein have not been amended since Lofton’s
trial.
       8 See Hampton v. State, 295 Ga. 665, 671 (763 SE2d 467) (2014)

(Nahmias, J., concurring) (noting that, under “constitutional doctrine”
applicable at the time of a 2012 trial, “the Fourth Amendment’s protections do
not encompass records of a person’s stored communications when the police
obtain those records from someone else, like the person’s communications
provider,” although “federal and Georgia statutory law imposes limits on the

                                     17
     In terms of voluntary disclosures under 18 USC § 2702, the

SCA generally prohibits a provider from voluntarily divulging “a

record or other information pertaining to a subscriber to or customer

of such service . . . to any governmental entity.” 18 USC § 2702 (a)

(3).9 The SCA provides remedies and sanctions for prohibited



authority of law enforcement to demand stored wire and electronic
communications information from a communications provider” (emphasis in
original)).
      9 18 USC § 2702 (a) provides that, except as otherwise provided:

      (1) a person or entity providing an electronic communication
      service to the public shall not knowingly divulge to any person or
      entity the contents of a communication while in electronic storage
      by that service; and
      (2) a person or entity providing remote computing service to the
      public shall not knowingly divulge to any person or entity the
      contents of any communication which is carried or maintained on
      that service —
            (A) on behalf of, and received by means of electronic
            transmission from (or created by means of computer
            processing of communications received by means of
            electronic transmission from), a subscriber or
            customer of such service;
            (B) solely for the purpose of providing storage or
            computer processing services to such subscriber or
            customer, if the provider is not authorized to access
            the contents of any such communications for purposes
            of providing any services other than storage or
            computer processing; and
      (3) a provider of remote computing service or electronic
      communication service to the public shall not knowingly divulge a
      record or other information pertaining to a subscriber to or
      customer of such service (not including the contents of

                                  18
disclosures.10 But a service provider can voluntarily provide such

non-content records to a governmental entity if the provider has a

good faith belief that an emergency poses a risk of death or serious

physical injury that requires disclosure without delay. See 18 USC

§ 2702 (c) (4).11 MetroPCS therefore violated the SCA by voluntarily



       communications covered by paragraph (1) or (2)) to any
       governmental entity.
       10 See 18 USC §§ 2701 (providing criminal penalties for “intentionally

access[ing] without authorization” or “intentionally exceed[ing] an
authorization to access” a “facility through which an electronic communication
service is provided”); 2707 (a) (providing a civil remedy for any “person
aggrieved by any violation of [the SCA] in which the conduct constituting the
violation is engaged in with a knowing or intentional state of mind”), (d)
(providing for administrative discipline of government employees under
certain circumstances); 2708 (“The remedies and sanctions described in this
chapter are the only judicial remedies and sanctions for nonconstitutional
violations of this chapter.”).
       11 18 USC § 2702 (c) (4) provides:

       A provider . . . may divulge a record or other information
       pertaining to a subscriber to or customer of such service (not
       including the contents of communications covered by subsection (a)
       (1) or (a) (2)) . . . to a governmental entity, if the provider, in good
       faith, believes that an emergency involving danger of death or
       serious physical injury to any person requires disclosure without
       delay of information relating to the emergency[.]
See United States v. Gilliam, 842 F3d 801, 803 (2d Cir. 2016) (As used in 18
USC § 2702 (c), the phrase “other information” includes the current location of
a subscriber’s cell phone. A provider was authorized to disclose a subscriber’s
current location to law enforcement officers under subsection (c) (4) because
the officers had received credible information that the subscriber was
transporting a missing child in order to require her to work as a prostitute,
which was an emergency involving danger of serious physical injury to the

                                      19
producing the subscriber information and call logs with CSLI

requested by the detective, unless it had a good faith belief that a

qualifying emergency existed.

       Here, when requesting Lofton’s records, the detective attested

that an emergency existed that involved immediate danger of death

or serious bodily injury to a person. She explained that there was a

witness who was known to a murder suspect and that the records

were needed to apprehend the suspect and to prevent the witness

from being harmed. In Registe, a factually similar case decided two

years before Lofton’s trial,12 this Court determined that a law

enforcement request for voluntary disclosure of cell phone records

satisfied the applicable statutory law, where the service provider

had


child.).
       12 In Registe, a detective who was investigating a double murder learned

from a third person that the victims were supposed to meet someone named
“Mike” on the morning they were killed. The witness had a cell phone number
for “Mike.” The detective faxed a request to the service provider for the owner
of the account and for a log of calls for a two-hour period bracketing the time
of the murders. The detective attested, “[o]bviously this suspect presents an
immediate danger to any law enforcement officer who may come into contact
with this person.” The service provider voluntarily released the requested
records. See Registe, 292 Ga. at 156-157.
                                      20
      received information directly from police that its records
      could help identify an at-large suspect of a double
      homicide committed within a day of the request and that
      the suspect presented a present and immediate danger.
      This supported [the provider’s] good faith belief that there
      was an ongoing emergency, and that belief supported [the
      provider’s] voluntary disclosure of its records [under the
      SCA, 18 USC § 2702 (c) (4)].

Registe, 292 Ga. at 157.13 Likewise, in this case, we conclude that the

detective’s communications with MetroPCS supported a good faith

belief that its voluntary disclosure of the requested records was

authorized under the SCA and binding appellate precedent at the

time. See id. at 156-157.


      13 In addition to challenging the release of cell phone records under 18

USC § 2702 (c) (4), Registe also argued that the release failed to comply with
OCGA § 16-11-66.1 (d), which provides: “A subpoena for the production of
stored wire or electronic communications and transactional records pertaining
thereto may be issued at any time upon a showing by a law enforcement
official, a prosecuting attorney, or the Attorney General that the subpoenaed
material relates to a pending criminal investigation.” See also OCGA §§ 16-11-
62 (defining offenses involving unlawful eavesdropping or surveillance); 16-11-
69 (providing punishments for offenses involving unlawful eavesdropping or
surveillance). We questioned whether OCGA § 16-11-66.1 applies to voluntary
disclosures under 18 USC § 2702 (c) (4), because OCGA § 16-11-66.1 “appears
to apply only to mandatory disclosures” of electronic communications and
related transactional records to law enforcement. Registe, 292 Ga. at 157 n.3
(emphasis in original); see id. at 158 (Hunstein, C. J., concurring specially)
(“Intended to establish ground rules for the issuance and use of warrants,
subpoenas, and other means by which law enforcement can compel the
disclosure of information, [OCGA § 16-11-66.1] does not address situations
involving voluntary disclosures by service providers.”)).
                                      21
     Four years after Lofton’s trial, the United States Supreme

Court’s decision in Carpenter v. United States, 585 U. S. ___ (138 SCt

2206, 201 LE2d 507) (2018), marked a shift in constitutional

doctrine for the government’s acquisition of a person’s location

information from an electronic communications services provider.

The Court concluded that CSLI can be mapped to provide “an all-

encompassing record of the [cell phone] holder’s whereabouts.” Id. at

___ (III) (A) (138 SCt at 2217).

     As with GPS information, the time-stamped [cell-site
     location] data provides an intimate window into a
     person’s life, revealing not only his particular movements,
     but through them his familial, political, professional,
     religious, and sexual associations. These location records
     hold for many Americans the “privacies of life.” And like
     GPS monitoring, cell phone tracking is remarkably easy,
     cheap, and efficient compared to traditional investigative
     tools.

Id. (citations and punctuation omitted).14 The Court held that,



     14 See Riley v. California, 573 U. S. 373, 393 (III) (B) (1), 403 (IV) (134

SCt 2473, 189 LE2d 430) (2014) (Modern cell phones, which have “immense
storage capacity,” with “all they contain and all they may reveal,” about a
person’s private concerns, communications, associations, and past “specific
movements down to the minute,” “hold for many Americans ‘the privacies of
life[.]’” (citation omitted)).

                                      22
“[w]hether     the    government       employs     its   own     surveillance

technology[,]” as when it places a tracking device on a suspect’s car,15

“or leverages the technology of a wireless carrier, . . . an individual

maintains a legitimate expectation of privacy in the record of his

physical movements as captured through CSLI[,]” despite the fact

that the information is held by a third party as part of its business

records. Id., ___ U. S. at ___ (III) (138 SCt at 2217).

      Because a person has a reasonable expectation of privacy in

“the whole of his physical movements” as captured through CSLI,

the Carpenter Court held, compelling a cell-service provider to turn

over a user’s historical CSLI is a search under the Fourth

Amendment, at least if the CSLI is for seven days or more, and,

before such a search, “the Government’s obligation is a familiar one

— get a warrant.” Id. at ___ (III) (A), (IV) (138 SCt at 2217-2221).



      15 See United States v. Jones, 565 U. S. 400, 407 (132 SCt 945, 181 LE2d

911) (2012) (The government’s installation of a GPS tracking device on a
target’s vehicle, and its use of that device to monitor the vehicle’s movements
for a period of weeks, was a “physical intrusion of a constitutionally protected
area in order to obtain information” and therefore constituted a “search” within
the meaning of the Fourth Amendment.).

                                      23
The Court held that an order issued under 18 USC § 2703 (c) (1) (B)

and (d), based on a showing that the government has “reasonable

grounds” for believing that the records are “relevant and material to

an ongoing investigation,”16 is not “a permissible mechanism for

accessing historical cell-site records” because the required showing

by law enforcement “falls well short of the probable cause required

for a warrant” and creates a standard that is “a gigantic departure

from the probable cause rule” applicable to searches under the

Fourth Amendment. Carpenter, 585 U. S. at ___ (IV) (138 SCt at

2221) (punctuation omitted).

      In Carpenter, the Court decided the issue before it narrowly,



      16 18 USC § 2703 (c) (1) provides five circumstances that may authorize

a governmental entity to “require a provider of electronic communication
service or remote computing service to disclose a record or other information
pertaining to a subscriber to or customer of such service (not including the
contents of communications),” including, in subpart (B), when the
governmental entity “obtains a court order for such disclosure under
subsection (d) of this section[.]” 18 USC § 2703 (d) provides that a court order
for disclosure under subsection (c)
       may be issued by any court that is a court of competent jurisdiction
       and shall issue only if the governmental entity offers specific and
       articulable facts showing that there are reasonable grounds to
       believe that the contents of a wire or electronic communication, or
       the records or other information sought, are relevant and material
       to an ongoing criminal investigation.
                                      24
holding that “accessing seven days of [historical] CSLI constitutes a

Fourth Amendment search.” Carpenter, 585 U. S. at ___ (III) n.3

(138 SCt at 2217). The Court did not reach the question “whether

there is a limited period for which the Government may obtain an

individual’s historical CSLI free from Fourth Amendment scrutiny,

and if so, how long that period might be.” Id. In arguing for this

Court to reverse the trial court’s denial of Lofton’s motion to

suppress the first tranche of cell phone records, and evidence derived

from those records, Lofton seeks an extension of the holding in

Carpenter: from a government-compelled production of cell phone

records under 18 USC § 2703 (c) (1) (B) and (d) to a request under

18 USC § 2702 (c) (4) for the voluntary disclosure of records to

address an emergency, and from seven days of historical CSLI to

four days of historical CSLI.

     Even if we were persuaded that Carpenter should be extended

in these ways, however, we would not reverse the trial court’s

decision to admit the historical CSLI evidence in this case unless

exclusion would serve the purpose of deterring future Fourth

                                 25
Amendment violations by law enforcement officers, which is the

“sole purpose” of the exclusionary rule. Davis v. United States, 564

U. S. 229, 236-237 (II) (131 SCt 2419, 180 LE2d 285) (2011). “For

exclusion [of evidence obtained in violation of the Fourth

Amendment] to be appropriate, the deterrence benefits of

suppression must outweigh its heavy costs.” Id. at 237 (II). “When

the police exhibit deliberate, reckless, or grossly negligent disregard

for Fourth Amendment rights,” the benefits of exclusion tend to

outweigh the costs. Id. at 238 (II) (citation and punctuation omitted).

But, “when the police act with an objectively reasonable good-faith

belief that their conduct is lawful, or when their conduct involves

only simple, isolated negligence,” then “suppression fails to yield

appreciable deterrence, [and] exclusion is clearly unwarranted.” Id.

at 237-238 (II) (citations and punctuation omitted).

     Two “good faith” exceptions to the exclusionary rule are

pertinent here.17 In Illinois v. Krull, 480 U. S. 340 (107 SCt 1160, 94



     17 The first good faith exception to the exclusionary rule recognized by



                                    26
LE2d 364) (1987), the United States Supreme Court examined the

admissibility of “evidence obtained by an officer acting in objectively

reasonable      reliance     on    a   statute”     that    is   later    declared

unconstitutional. Id. at 349 (II) (B). The Court held that such

evidence is not subject to the exclusionary rule because “[p]enalizing

the officer for the legislature’s error, rather than his own, cannot

logically contribute to the deterrence of Fourth Amendment


the United States Supreme Court applies where an officer acting with objective
good faith obtains a search warrant from a judge or magistrate and acts within
the scope of the warrant. See United States v. Leon, 468 U. S. 897, 918-921 (III)
(B) (104 SCt 3405, 82 LE2d 677) (1984). This Court later held that, “in light of
[Georgia’s] legislatively-mandated exclusionary rule found in OCGA § 17-5-
30[,]” the Leon exception to the exclusionary rule is inapplicable in Georgia as
a matter of statutory law. Gary v. State, 262 Ga. 573, 577 (422 SE2d 426)
(1992). See OCGA § 17-5-30 (“A defendant aggrieved by an unlawful search
and seizure may move the court . . . to suppress as evidence anything so
obtained on the grounds that . . . [t]he search and seizure with a warrant was
illegal because . . . there was not probable cause for the issuance of the warrant.
. . . If the motion is granted the property . . . shall not be admissible in evidence
against the movant in any trial.”). Recently, however, this Court found the
reasoning of Gary to be “unsound” and concluded that OCGA § 17-5-30
“establishes a procedure for applying the exclusionary rule but does not itself
require the suppression of any evidence.” Mobley v. State, 307 Ga. 59, 75 (4) (a)
(834 SE2d 785) (2019). We “disavow[ed]” Gary’s reasoning and held that Gary
“does not extend to any context other than the reliance of an officer in good
faith upon the validity of a search warrant[.]” Mobley, 307 Ga. at 75 (4) (a) (not
reaching the question whether the specific holdings of Gary and its progeny
should be squarely overruled, “a question that would require a consideration
of the doctrine of stare decisis”). Thus, Gary does not “categorically foreclose
the application of any other exception to the exclusionary rule.” Id. at 75-76 (4)
(a).
                                         27
violations.” Id. at 350 (II) (B) (citation and punctuation omitted). The

Court explained that,

         [u]nless a statute is clearly unconstitutional, an officer
         cannot be expected to question the judgment of the
         legislature that passed the law. If the statute is
         subsequently declared unconstitutional, excluding
         evidence obtained pursuant to it prior to such a judicial
         declaration will not deter future Fourth Amendment
         violations by an officer who has simply fulfilled his
         responsibility to enforce the statute as written.

Id. at 349-350 (II) (B). The Court held that the exclusionary rule did

not apply to evidence seized in objective good faith reliance on “a

statute that appeared legitimately to allow a warrantless

administrative search” of certain licensed businesses. Id. at 360

(III).

         More recently, in Davis, the United States Supreme Court

applied the same reasoning to searches conducted in objectively

reasonable reliance on binding appellate precedent that is later

overruled. See 564 U. S. at 241 (III). The Court held that such

evidence is not subject to the exclusionary rule because “[a]n officer

who conducts a search in reliance on binding appellate precedent


                                    28
does no more than act as a reasonable officer would and should act

under the circumstances.” Id. (citation and punctuation omitted).

     In this case, we have concluded that the detective’s

communications with MetroPCS supported a good faith belief that

the company’s voluntary disclosure of the requested records was

authorized under the SCA, 18 USC § 2702 (c) (4). We further

conclude that it was objectively reasonable for a law enforcement

officer in good faith to rely on this statutory mechanism to request

records for a cell phone number used by a murder suspect where the

request was made less than a day after the murder while the effort

to apprehend the suspect was ongoing. See Krull, 480 U. S. at 360

(III); Registe, 292 Ga. at 157; see also United States v. Wilson, 960

F3d 136, 146 (III) (B) (3d Cir. 2020) (holding exclusionary rule did

not apply to historical CSLI obtained with a court order applied for

in objectively reasonable good faith reliance on 18 USC § 2703 (c) (1)

(B) and (d) of the SCA before the statute was abrogated by

Carpenter); United States v. Curtis, 901 F3d 846, 849 (I) (7th Cir.

2018) (same). In addition, we conclude that it was objectively

                                 29
reasonable for a law enforcement officer in good faith to rely on

binding appellate precedent that at the time did not recognize any

reasonable expectation of privacy in non-content cell phone records

contained in the business records of a third party and did not

differentiate between historical CSLI and other types of non-content

cell phone records, as the Carpenter Court would later do. See Davis,

564 U. S. at 241 (III); Reed v. State, 307 Ga. 527, 535 (2) (b) (837

SE2d 272) (2019); Registe, 292 Ga. at 156-157; Smarr v. State, 317

Ga. App. 584, 593 (3) (c) (732 SE2d 110) (2012); see also United

States v. Zodhiates, 901 F3d 137, 143 (I) (2d Cir. 2018) (holding

exclusionary rule did not apply to historical CSLI obtained in

objectively reasonable good faith reliance on appellate precedent

establishing the third-party doctrine before the Carpenter Court

held that a warrant is required for at least seven days of historical

CSLI despite the fact that the information is held by a third party).18


      18  In Mobley, we made clear that “the Davis good faith exception is
distinct from the Leon good faith exception and is not, therefore, foreclosed by
the specific holding of Gary.” 307 Ga. at 78 n.24. We therefore disapprove the
Court of Appeals’ decision in Brown v. State, 330 Ga. App. 488, 492-493 (2) &

                                      30
      Because, at the time of Lofton’s trial, a federal statute, 18 USC

§ 2702 (c) (4), and binding appellate precedent, Registe, 292 Ga. at

157, authorized the investigatory conduct at issue, reversing the

trial court’s decision in this case would have little, if any, additional

benefit in deterring future violations of the privacy interests

recognized in Carpenter. We therefore affirm the trial court’s ruling.

See Davis, 564 U. S. at 241 (III); Krull, 480 U. S. at 360 (III).

      3. Lofton contends that he received ineffective assistance of

counsel. Specifically, he argues that, at the hearing on his motion to

suppress, his counsel was constitutionally deficient for failing to

adequately     cross-examine      the      detective   about   the    exigent

circumstances that allegedly existed when she initially obtained

Lofton’s MetroPCS phone records without a warrant. He argues that

the supposed inadequacy of counsel’s cross-examination of the

detective prejudiced him by causing the trial court to deny his



n.6 (767 SE2d 299) (2014) (citing Gary and holding that Georgia does not
recognize the Davis good faith exception to the exclusionary rule and that,
therefore, a warrantless search incident to a DUI arrest of the arrestee’s cell
phone to view photos stored on the phone “was illegal regardless whether the
officer reasonably relied on existing case law”).
                                      31
motion to suppress.

     To succeed on his claim of ineffective assistance of counsel,

Lofton “must prove both that his lawyer’s performance was

professionally deficient and that he was prejudiced as a result.”

Styles v. State, 309 Ga. 463, 471 (5) (847 SE2d 325) (2020) (citation

and punctuation omitted). See also Strickland v. Washington, 466

U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).

     The scope of cross-examination is grounded in trial tactics
     and strategy, and will rarely constitute ineffective
     assistance of counsel. More specifically, the extent of
     cross-examination is a strategic and tactical decision.
     Decisions about cross-examination do not amount to
     deficient performance unless they are so unreasonable
     that no competent attorney would have made them under
     similar circumstances.

Gaston v. State, 307 Ga. 634, 642 (2) (d) (837 SE2d 808) (2020)

(citations, punctuation and emphasis omitted).

     The transcript of the hearing on Lofton’s motion to suppress

shows that counsel questioned the detective at length and elicited

testimony about the circumstances that existed when she requested

the records from MetroPCS. Lofton fails to specify any question or


                                 32
line of inquiry that counsel failed to pursue. As a result, he has not

established a reasonable probability that the result of his trial would

have been different absent counsel’s alleged deficiencies. See

Wainwright v. State, 305 Ga. 63, 69 (3) (823 SE2d 749) (2019) (Mere

speculation that counsel failed to properly cross-examine witness is

not enough to show prejudice on ineffective assistance of counsel

claim.); Baker v. State, 293 Ga. 811, 815 (3) (750 SE2d 137) (2013)

(same). And “if an appellant fails to meet his or her burden of

proving either prong of the Strickland test, the reviewing court does

not have to examine the other prong.” Wainwright, 305 Ga. at 69 (3)

(citation and punctuation omitted). Lofton’s claim of ineffective

assistance of counsel therefore fails.

     4. Lofton contends that the trial court erred in allowing certain

exhibits to go out with the deliberating jury in violation of the

continuing witness rule. Specifically, he contends that the trial court

erred in sending out State’s Exhibit 15, a six-person photo lineup on

which Brown circled Lofton’s photo and wrote “Lil Tony” under the

photo, and State’s Exhibit 14, a form that Brown filled out after

                                  33
viewing the lineup, including an indication that it took him ten

seconds or less to pick out the person who committed the crime and

that he knew the person he identified as Lil Tony. Lofton also

contends that the trial court erred in sending out MetroPCS phone

records that included subscriber information and call detail records

with tower location information for the period October 1 through 20,

2013, for Lofton’s phone (State’s Exhibit 42), Eatmon’s phone

(State’s Exhibit 43), and Brown’s phone (State’s Exhibit 44). Finally,

Lofton contends that the trial court erred in sending out State’s

Exhibit 45B, a printout of text messages for Lofton’s phone for the

day of the shooting, and State’s Exhibit 46, a list of cell phone towers

in the Atlanta area with the street address of each tower.

      The continuing witness rule of Georgia law “regulates which

documents or recordings go into the jury room with the jury during

deliberations and which ones do not.” Clark v. State, 296 Ga. 543,

548-549 (4) (769 SE2d 376) (2015). As we have explained,

     the continuing witness objection is based on the notion
     that written testimony is heard by the jury when read
     from the witness stand just as oral testimony is heard

                                  34
     when given from the witness stand. But, it is unfair and
     places undue emphasis on written testimony for the
     writing to go out with the jury to be read again during
     deliberations, while oral testimony is received but once.
     The types of documents that have been held subject to the
     rule include affidavits, depositions, written confessions,
     statements, and dying declarations.

Keller v. State, 308 Ga. 492, 505-506 (9) (842 SE2d 22) (2020)

(citation and punctuation omitted). See also Rainwater v. State, 300

Ga. 800, 802 (2) n.3 (797 SE2d 889) (2017) (noting that the

continuing witness rule was unaffected by the enactment of the

current Evidence Code).

     Here, none of the challenged exhibits were written testimony,

nor did they derive their evidentiary value solely from the credibility

of the makers of the exhibits. See Clarke v. State, 308 Ga. 630, 636

(4) (842 SE2d 863) (2020); Keller, 308 Ga. at 505-506 (9). Instead,

they were original documentary evidence and were properly allowed

to go out with the jury. See Clarke, 308 Ga. at 636 (4); Keller, 308

Ga. at 505-506 (9); Wilkins v. State, 291 Ga. 483, 488 (6) (731 SE2d

346) (2012).

     5. Lofton contends that he received ineffective assistance of

                                  35
counsel after the trial court denied his request, made just before jury

selection, to discharge his court-appointed counsel and to replace

appointed counsel with retained counsel. After hearing Lofton’s

request, the trial court also agreed to hear from Lofton’s father on

the issue. The trial court stated that, because Lofton had filed a

demand for a speedy trial and had known of the date set for trial

with adequate time to retain new counsel, the court would not grant

a continuance for that purpose. See Lane v. State, 299 Ga. 791, 794

(2) (792 SE2d 378) (2016) (“[W]hile every defendant has the right to

hire counsel, a defendant must use reasonable diligence in obtaining

retained counsel. A defendant may not use a request for change of

counsel as a dilatory tactic.” (citations and punctuation omitted)).

The trial court then allowed Lofton and his father to confer privately

with Lofton’s appointed counsel. After that private conference,

Lofton abandoned his request to discharge his appointed counsel.

     The assistance of counsel is not ineffective solely because the

client would have preferred a different lawyer. See McCullough v.

State, 304 Ga. 290, 296 (2) (b) (818 SE2d 520) (2018). And Lofton did

                                  36
not preserve for our review any error in the trial court’s declining

his request to change counsel because he withdrew his request. See

Phillips v. State, 279 Ga. 704, 705 (1) (620 SE2d 367) (2005);

Anderson v. State, 276 Ga. App. 216, 217 (1) (622 SE2d 898) (2005).

     6. Lofton contends that the State exercised its jury strikes with

racially discriminatory intent and that the trial court erred in

rejecting his challenge to the jury under Batson v. Kentucky, 476 U.

S. 79 (106 SCt 1712, 90 LE2d 69) (1986). Specifically, Lofton

contends that the State, which used nine peremptory jury strikes

and struck seven African American jurors, exercised its jury strikes

in a racially discriminatory manner.

     A Batson challenge involves three steps:

     (1) the opponent of a peremptory challenge must make a
     prima facie showing of racial discrimination; (2) the
     proponent of the strike must then provide a race-neutral
     explanation for the strike; and (3) the court must decide
     whether the opponent of the strike has proven the
     proponent’s discriminatory intent.

Thomas v. State, 309 Ga. 488, 490 (2) (847 SE2d 147) (2020) (citation

omitted). “[A] trial court’s finding as to whether the opponent of a


                                 37
strike has proven discriminatory intent is entitled to great deference

and will not be disturbed unless clearly erroneous.” Jackson v. State,

291 Ga. 25, 26-27 (2) (727 SE2d 120) (2012).

     In this case, the threshold issue of whether Lofton made a

prima facie showing of racial discrimination is moot, because the

State, on the record, offered race-neutral explanations for each of

the challenged strikes. See Lord v. State, 304 Ga. 532, 536 (3) (820

SE2d 16) (2018); see also Pye v. State, 269 Ga. 779, 780 (1) (505 SE2d

4) (1998) (“The record shows that the State gave reasons for [each of

the challenged] peremptory strikes, rendering the necessity of a

preliminary showing of prima facie discrimination moot.”). “At step

two [of a Batson analysis], the proponent of the strike need only

articulate a facially race-neutral reason for the strike. Step two does

not demand an explanation that is persuasive, or even plausible.”

Taylor v. State, 303 Ga. 624, 631-632 (3) (814 SE2d 353) (2018)

(citations and punctuation omitted). “[B]oth the United States

Supreme Court and this Court have squarely held that a peremptory

strike based upon a juror’s demeanor during voir dire may be race-

                                  38
neutral at Batson step two.” Id. (citations and punctuation omitted).

Here, the State gave race-neutral explanations for the strikes. See

Myrick v. State, 306 Ga. 894, 899 (2) (b) (834 SE2d 542) (2019).19

      “[A]t the third step of the Batson analysis, the trial court makes

credibility determinations, evaluates the persuasiveness of the

strike opponent’s prima facie showing and the explanations given by

the strike proponent, and examines all other circumstances that

bear upon the issue of racial animosity.” Thomas, 309 Ga. at 491 (2)

(citation and punctuation omitted). A trial court’s finding that the

prosecutor’s reasons for the peremptory strikes were not racially




      19 The State explained that prospective Juror Number 8 was removed

because the juror felt that she would have a “hard time disassociating” this
case from her negative feelings about her daughter serving as a State trooper;
Juror Number 11 was “vague” in her responses during voir dire and the
prosecutor believed that the juror was not forthcoming about her feelings
regarding her father’s substance abuse problems; Juror Number 16 was
extremely familiar with the locations of the gas stations and apartments where
events at issue took place; Juror Number 25 did not seem to understand the
questions posed during voir dire and was not forthcoming in her responses;
Juror Number 29 seemed indifferent to his children and also seemed deceitful
in his answers about his familiarity with the incident locations; Juror Numbers
38 and 39 were not objectionable to the prosecutor, but she struck them “purely
strategically” because she felt Juror Number 40 would be particularly
sympathetic to the victim because her brother also had abused prescription
drugs.
                                      39
motivated, “like most Batson decisions, turn[s] largely on an

evaluation of the credibility of the attorney who made the strikes,

and evaluation of the prosecutor’s state of mind based on demeanor

and credibility lies peculiarly within a trial judge’s province.”

Johnson v. State, 302 Ga. 774, 780 (3) (b) (809 SE2d 769) (2018)

(citations and punctuation omitted). We discern no basis for

concluding that the trial court’s determination that Lofton failed to

prove discriminatory intent is clearly erroneous; therefore, we

affirm. See Taylor, 303 Ga. at 633-635 (3); Johnson, 302 Ga. at 782

(3) (b).

      7. Lofton contends that the trial court erred in denying his

request that the jury be instructed that the testimony of an

accomplice alone is not sufficient to warrant a conviction but must

be corroborated by other evidence of the guilt of the accused.20

Specifically, Lofton argues that Eatmon was an accomplice in the


      20 See OCGA § 24-14-8 (In “prosecutions for . . . felony cases where the

only witness is an accomplice, the testimony of a single witness shall not be
sufficient [to establish a fact]. Nevertheless, corroborating circumstances may
dispense with the necessity for the testimony of a second witness” in such
cases.).
                                      40
“string of crimes” on the day of the shooting, in that he

“orchestrated” the drug deal.

     “In considering whether a witness is an accomplice, we look to

the definition of party to a crime found in OCGA § 16-2-20.” Walter

v. State, 304 Ga. 760, 766 (3) (b) (822 SE2d 266) (2018). Under that

statute, “[a] person is concerned in the commission of a crime . . . if

he . . . [i]ntentionally aids or abets in the commission of the crime;

or [i]ntentionally advises [or] encourages . . . another to commit the

crime.” OCGA § 16-2-20 (b) (3), (4). “Mere presence at the

commission of a crime does not render the spectator an accomplice.”

Christian v. State, 277 Ga. 775, 776 (1) (596 SE2d 6) (2004). Rather,

there must be some evidence showing that the person “shared a

common criminal intent to commit the crimes in question with the

actual perpetrators.” Higuera-Guiterrez v. State, 298 Ga. 41, 43 (2)

(779 SE2d 288) (2015). Criminal intent may be inferred from the

person’s conduct before, during, and after the crimes. Id.

     “There must be at least slight evidence produced at trial to

authorize a jury instruction, and whether the evidence presented is

                                  41
sufficient to authorize a charge is a question of law.” Rammage v.

State, 307 Ga. 763, 767 (4) (838 SE2d 249) (2020) (citation and

punctuation omitted). See also Barron v. State, 297 Ga. 706, 708 (2)

(777 SE2d 435) (2015) (“A request to charge has to be legal, apt, and

precisely adjusted to some principle involved in the case and be

authorized by the evidence.” (citation and punctuation omitted)).

Thus, it is not error to fail to give a requested jury instruction

regarding the corroboration required for accomplice testimony

where there is no evidence that the witness shared a common

criminal intent with the defendant to commit the crimes charged.

See Yeomans v. State, 229 Ga. 488, 493 (5) (192 SE2d 362) (1972);

Parks v. State, 294 Ga. App. 646, 651 (7) (669 SE2d 684) (2008); see

also Thornton v. State, 307 Ga. 121, 125 (2) (c) (834 SE2d 814) (2019)

(no obvious error in failing sua sponte to instruct the jury on

corroboration of accomplice testimony where there was no evidence

that a witness shared a common criminal intent with the defendant

in shooting the murder victim); Stripling v. State, 304 Ga. 131, 136

(2) (816 SE2d 663) (2018) (same).

                                 42
     Although there was evidence in this case that Eatmon shared

a common criminal intent with Lofton for the drug deal to take place,

there was no evidence that Eatmon shared a common criminal

intent with Lofton for any of the crimes charged: murder, armed

robbery, aggravated assault, and possession of a firearm. There was

no evidence that Eatmon even knew Lofton was armed and prepared

to shoot Eatmon’s associate, Walker. And Eatmon’s conduct after

the shooting did not aid or abet Lofton in the crimes charged; rather,

Eatmon drove Walker to the hospital, and his cooperation with the

detectives and with the prosecutors directly contributed to Lofton’s

apprehension and conviction. The trial court did not err in refusing

to instruct the jury to determine whether Eatmon was an accomplice

or in failing to charge the jury on the corroboration necessary for the

testimony of an accomplice. See Yeomans, 229 Ga. at 493 (5); Parks,

294 Ga. App. at 651 (7).

     Judgment affirmed. All the Justices concur, except Melton, C.
J., who concurs in judgment only in Division 7.




                                  43
                    DECIDED FEBRUARY 15, 2021.
           Murder. Fulton Superior Court. Before Judge Schwall.
           Brownstone, P.A., Robert L. Sirianni, Jr., for appellant.
           Paul L. Howard, Jr., District Attorney, Lyndsey H.
Rudder, David K. Getachew-Smith, Sr., Assistant District
Attorneys; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Eric C. Peters, Assistant Attorney
General, for appellee.




                                 44