CourtListener 10680371

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318 Ga. 593
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S24A0148. MADERA v. THE STATE.

BETHEL, Justice.

Francisco Javier Madera was convicted of the malice murder of

Juan Carlos Zambrano.1 On appeal, Madera raises five claims of

error: (1) the trial court erred by denying his motion for new trial on

the general grounds; (2) the trial court erred by admitting video

footage of the injured Zambrano; (3) the trial court erred by

admitting evidence pursuant to OCGA § 24-8-803 (5); (4) trial

counsel was ineffective in two respects; and (5) the cumulative effect

of the trial court’s errors and counsel’s deficient performance

1 The crimes occurred on October 13, 2017. In January 2018, a Cobb

County grand jury indicted Madera for malice murder, felony murder, and
aggravated assault. Following a September 2019 jury trial, Madera was found
guilty of all counts. The trial court sentenced Madera to serve life in prison for
malice murder; the felony murder count was vacated by operation of law, and
the aggravated assault count merged for sentencing. Madera filed a timely
motion for new trial, which he amended through new counsel. Following a
hearing, the trial court denied the motion, as amended, on August 2, 2023.
Madera thereafter filed a timely notice of appeal, and the case was docketed to
this Court’s term commencing in December 2023 and submitted for a decision
on the briefs.
requires a new trial. For the reasons that follow, we affirm.

1. Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at trial showed as follows. On the night of

October 13, 2017, Madera, Zambrano, and others attended a party

at the Cobb County home of Elma Escobar. While Madera and

Zambrano were dancing with the same woman, the two began

arguing, and, later in the evening, they physically fought each other.

Several partygoers separated Madera and Zambrano, and Escobar

asked Madera to leave.

Escobar walked Madera to his vehicle, and Madera began to

leave. As Escobar was walking back to the house, however, she

heard Madera “unlocking” his firearm and saw that he had stopped

his vehicle in the road and had exited the vehicle. Though Escobar

grabbed Madera and tried to calm him, he pointed his gun at

Zambrano and fired. Witnesses testified that, immediately before

the shooting, Zambrano was hugging another partygoer, and three

witnesses testified that Zambrano did not have anything in his

hands when he was shot and did not have a gun in his possession

2
that night. Escobar heard one gunshot followed by two more and

then saw Zambrano clutching his abdomen. Zambrano fell to the

ground after being shot. Edwin Santos Saez, another partygoer,

testified that, after Zambrano fell to the ground, Madera shot him

again. Another partygoer heard Madera direct two slurs at

Zambrano during the shooting. After shooting Zambrano, Madera

fled and was arrested two days later at a hotel in Little Rock,

Arkansas.

Escobar called an ambulance and the police, but Zambrano

asked to be driven to the hospital. Zambrano was placed in Saez’s

vehicle, and en route to the hospital, Saez crossed paths with and

flagged down officers responding to Escobar’s earlier call. Officers

found the unconscious Zambrano in the front passenger seat; he had

gunshot wounds to the left side of his abdomen and the upper area

of his back. The officers applied pressure to Zambrano’s wounds

while waiting for emergency medical services to arrive, and their

actions were captured by their body cameras. Zambrano was

transported to the hospital, where he died as a result of his wounds

3
the following day.

At trial, Madera testified that he acted in self-defense after

seeing a snub-nosed revolver in Zambrano’s right hand. The State,

however, presented evidence showing that no weapons were found

on Zambrano’s person or during a search of Saez’s vehicle and that

no guns or ammunition were found during a search of Escobar’s

home the day after the shooting.

On appeal, Madera first argues that the trial court should have

granted him a new trial on the “general grounds” because, he says,

some of the evidence against him was conflicting. See OCGA §§ 5-5-

20 (authorizing grant of new trial if the trial judge concludes that

the jury’s verdict is “contrary to evidence and the principles of justice

and equity”) and 5-5-21 (authorizing grant of new trial if the trial

judge concludes that the jury’s verdict is “decidedly and strongly

against the weight of the evidence”). The general grounds require a

trial court “to exercise a broad discretion to sit as a ‘thirteenth juror’”

and “consider some of the things that he cannot when assessing the

legal sufficiency of the evidence, including any conflicts in the

4
evidence, the credibility of witnesses, and the weight of the

evidence.” Hinton v. State, 312 Ga. 258, 262 (1) (c) (862 SE2d 320)

(2021) (citation and punctuation omitted). “We review whether the

trial court exercised its discretion as the thirteenth juror, but the

decision to grant a new trial on the general grounds is vested solely

in the trial court and not subject to our review.” Weems v. State, 318

Ga. 98, 102-103 (3) (897 SE2d 368) (2024). Here, in its order denying

Madera’s motion for new trial, the trial court, after stating that it

independently reviewed the evidence and considered the credibility

of witnesses, expressly rejected Madera’s general grounds claim.

Thus, the trial court’s order shows that the court properly exercised

its discretion under OCGA §§ 5-5-20 and 5-5-21, and Madera’s

argument “is otherwise not subject to review by this Court.”2 See

2 Madera does not separately argue that the evidence was insufficient to

support his conviction as a matter of constitutional due process under Jackson
v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). In previous
appeals in which an appellant raised a general-grounds claim, we have often
reviewed the sufficiency of the evidence as a matter of constitutional due
process, though many of us have questioned the soundness of that approach.
See King v. State, 316 Ga. 611, 616 (2) n.8 (889 SE2d 851) (2023). Like in King,
however, we need not determine the propriety of that approach in this case
because the evidence against Madera was constitutionally sufficient to affirm
his conviction.
5
Weems, 318 Ga. at 103 (3).

2. Madera next challenges the admission of a video and audio

recording from a police officer’s body camera which showed

emergency responders rendering aid to the wounded Zambrano in

Saez’s vehicle. Specifically, Madera asserts for the first time on

appeal that the admission of an “excessive number of photographic

exhibits” at trial, including autopsy photographs, rendered the body

camera footage cumulative and, thus, “unfairly prejudicial.”

Because Madera did not object on this basis at trial, we review this

claim only for plain error.3 See Gates v. State, 298 Ga. 324, 327 (3)

(781 SE2d 772) (2016); OCGA § 24-1-103 (a), (d). To establish plain

3 In a pretrial motion in limine, Madera sought to have the footage
excluded on the basis that it had “no relevance to any matter in dispute.”
Noting that the footage showed Zambrano “injured, [lying] down in a car, and
moaning and writhing in pain,” Madera argued that the footage would “no
doubt be shocking to a jury” and that, as a result, “its prejudicial effect
substantially outweighs any probative value that it may have.” But the motion
in limine did not expressly challenge the footage as cumulative and Madera
did not lodge a separate contemporaneous objection on the related basis he now
argues on appeal, so our review is limited to plain error. See Washington v.
State, 312 Ga. 495, 500 (2) (b) n.8 (863 SE2d 109) (2021); Williams v. Harvey,
311 Ga. 439, 452 (2) (858 SE2d 479) (2021) (“Although a party does not waive
an error by failing to object to admission of evidence after a motion in limine is
denied, this rule cannot be invoked to preserve a different, if perhaps related,
error.” (citation and punctuation omitted)).
6
error, Madera bears the burden of demonstrating that the alleged

error “was not affirmatively waived”; that it was “clear and not open

to reasonable dispute”; that it “affected his substantial rights”; and

that it “seriously affected the fairness, integrity, or public reputation

of judicial proceedings.” Jones v. State, 317 Ga. 466, 473 (2) (893

SE2d 741) (2023) (citations and punctuation omitted). And where an

appellant fails to establish one element of the plain error test, we

need not consider the others. See id.

Madera argues only that the footage at issue should have been

excluded as cumulative of other exhibits admitted at trial,

specifically autopsy photographs. It is well settled, however, that the

erroneous admission of evidence that is merely cumulative of other

properly admitted evidence is generally harmless, particularly

where the evidence of the defendant’s guilt is strong. See, e.g., Allen

v. State, 310 Ga. 411, 417 (3) (851 SE2d 541) (2020); Smith v. State,

307 Ga. 106, 115 (5) (834 SE2d 750) (2019). And here, Madera does

not argue that the autopsy photographs were improperly admitted,

and the evidence of his guilt, which included the testimony of

7
multiple eyewitnesses who rebutted his claim of self-defense, was

strong. Thus, even assuming that it was clear error to admit the

footage showing the injured Zambrano, we conclude that Madera

“cannot establish that the error affected his substantial rights

because he has not made an affirmative showing that the error

probably affected the outcome of his trial.” Allen, 310 Ga. at 416 (3)

(rejecting plain error claim where evidence at issue “was cumulative

of other unchallenged evidence” and evidence of defendant’s guilt

was strong). See also Jones, 317 Ga. at 473 (2) (appellant failed to

show how alleged erroneous admission of evidence affected his

substantial rights where the evidence “was cumulative of other

properly admitted evidence at trial” and there was “substantial

evidence of [appellant’s] guilt”); Perryman-Henderson v. State, 316

Ga. 626, 632-633 (3) (889 SE2d 814) (2023) (appellant failed to show

how alleged error affected his substantial rights in light of the

evidence against him, including eyewitness testimony that was not

consistent with his version of events). Accordingly, this plain error

claim fails.

8
3. Madera next contends that the State failed to lay a proper

foundation for admitting as a recorded recollection a witness’s

videotaped statement to investigators, see OCGA § 24-8-803 (5)

(“Rule 803 (5)”), and that the trial court therefore erred by admitting

it. Because Madera did not object on this ground at trial,4 we review

this claim for plain error. See Varner v. State, 306 Ga. 726, 730 (2)

(b) (832 SE2d 792) (2019).

While testifying on direct examination, Saez initially was

unable to recall whether Madera said anything to Zambrano as

Madera fired his weapon, though Saez had given a videotaped

statement to police shortly after the shooting during which he

recounted that Zambrano “was on the ground, and [Madera] walked

up to him and said what’s up now, or what’s up [and] shot him

again.” Pursuant to Rule 803 (5),5 the State then moved to admit a

4 At trial, Madera objected to the admission of this evidence only on
Confrontation Clause grounds.
5 Rule 803 (5) states that the following is not excluded by the general rule

against hearsay evidence:
A memorandum or record concerning a matter about which
a witness once had knowledge but now has insufficient recollection

9
portion of Saez’s videotaped statement as a past recollection

recorded. Outside the jury’s presence, Saez testified that he recalled

giving the statement, that he watched the recording of the

statement, that his memory was “a bit” better when he made the

statement than it was at trial, and that he was truthful when he

made the statement. The trial court found a sufficient foundation to

admit Saez’s videotaped statement, Madera raised no further

objection, and a brief portion of Saez’s statement was played in the

jury’s presence.

Pointing to Saez’s response that his memory was “a bit” better

at the time of the interview, Madera now complains that Saez’s

testimony was insufficient to lay a foundation for the admission of

the videotaped statement under Rule 803 (5). As Madera reads it,

our decision in Pierce v. State, 302 Ga. 389, 391-393 (1) (a) (807 SE2d

to enable the witness to testify fully and accurately shown to have
been made or adopted by the witness when the matter was fresh
in the witness’s memory and to reflect that knowledge correctly. If
admitted, the memorandum or record may be read into evidence
but shall not itself be received as an exhibit unless offered by an
adverse party[.]
10
425) (2017) — the sole case on which Madera relies — held that the

“vital element” for laying a foundation under Rule 803 (5) is an

“absolute affirmative” statement that the witness’s memory was

better when the recorded recollection was made. But Pierce imposes

no such requirement. Instead, Pierce makes clear that the pertinent

analysis is whether the witness’s testimony “was sufficient to

establish under [Rule 803 (5)] that the [recorded recollection]

concerned a matter about which [the witness] once had knowledge

but at trial had insufficient recollection, which was made or adopted

when the matter was fresh in his memory, and which correctly

reflected his knowledge.” Id. at 392-393 (1) (a). As Madera points to

no precedent imposing a requirement that the witness testify in the

“absolute affirmative” that his memory was better when the

recorded recollection was made and we are aware of none, he has

failed to show that the trial court committed clear and obvious error,

and thus no plain error, in admitting the brief portion of Saez’s

interview pursuant to Rule 803 (5). See Clay v. State, 309 Ga. 593,

597 (4) (a) (847 SE2d 530) (2020) (“[A]n error cannot be plain where

11
there is no controlling authority on point.” (citation and punctuation

omitted)).

4. Madera argues that his trial counsel was constitutionally

ineffective in two ways. To succeed on these claims, Madera must

show both that trial counsel’s performance was deficient and that he

suffered prejudice as a result. See Strickland v. Washington, 466

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

deficiency, Madera “must demonstrate that his attorney performed

at trial in an objectively unreasonable way considering all the

circumstances and in the light of prevailing professional norms.”

Pope v. State, 311 Ga. 557, 559 (858 SE2d 492) (2021) (citation and

punctuation omitted). “[D]ecisions regarding trial tactics and

strategy may form the basis for an ineffectiveness claim only if they

were so patently unreasonable that no competent attorney would

have followed such a course.” Davis v. State, 299 Ga. 180, 183 (2)

(787 SE2d 221) (2016) (citation and punctuation omitted). To

establish prejudice, Madera must show a reasonable probability

that, but for counsel’s deficient performance, the result at trial

12
would have been different. See Strickland, 466 U. S. at 694 (III) (B).

“We need not address both components of the inquiry if the

defendant makes an insufficient showing on one.” Suggs v. State,

310 Ga. 762, 768 (7) (854 SE2d 674) (2021). “[A] trial court’s factual

findings made in the course of deciding an ineffective assistance of

counsel claim will be affirmed by the reviewing court unless clearly

erroneous,” while “[c]onclusions of law based on those facts are

reviewed de novo.” Taylor v. State, 315 Ga. 630, 647 (5) (b) (884 SE2d

346) (2023) (citation and punctuation omitted).

(a) Madera contends that trial counsel did not conduct an

adequate investigation of his case, pointing to a litany of actions

that, he says, counsel failed to undertake in preparing the case for

trial. But even assuming that counsel’s investigation was

inadequate, Madera “has not suggested, much less shown, what

further investigation would have revealed or how it would have

helped his defense” and, thus, “has failed to prove the required

prejudice.” Suggs, 310 Ga. at 768 (7) (a). See also Lupoe v. State, 300

Ga. 233, 241 (2) (b) (794 SE2d 67) (2016) (“To show prejudice on a

13
claim that trial counsel failed to adequately investigate the case, [a

defendant must] at least make a proffer as to what additional

investigation would have uncovered, and not merely speculate that

such information exists and would have made a difference.” (citation

and punctuation omitted)). Accordingly, his argument that trial

counsel was ineffective on this ground fails.

(b) Madera also contends that trial counsel was ineffective for

failing to pursue a pretrial motion for immunity based on

justification. See OCGA § 16-3-24.2 (“A person who uses threats or

force in accordance with [certain statutes governing justification as

a defense, including self-defense,] shall be immune from criminal

prosecution therefor unless in the use of deadly force, such person

utilizes a weapon the carrying or possession of which is unlawful by

such person under [OCGA §§ 16-11-120 to 16-11-125].”). In rejecting

this claim below, the trial court credited counsel’s testimony at the

motion-for-new-trial hearing that he “believed [Madera] was

unlikely to prevail in an immunity motion” and “wanted the State

to have to grapple with [Madera’s] theory of defense and [Madera’s]

14
testimony for the first time at trial.” On that basis, the trial court

concluded that counsel made a reasonable strategic decision not to

pursue such a motion and that Madera had failed to establish that

counsel’s decision was unreasonable.

On appeal, Madera, pointing to his own testimony at the

motion-for-new-trial hearing, argues only that trial counsel “did not

thoroughly discuss with him the prospect of filing [a pre-trial

immunity] motion” and that he “disagreed” with counsel’s strategy.

But Madera’s after-the-fact disagreement with trial counsel’s

strategy does not mean that the strategy was objectively

unreasonable. See Szorcsik v. State, 303 Ga. 737, 743 (5) (814 SE2d

708) (2018) (“[T]he fact that the trial counsel . . . made certain

difficult decisions regarding the defense tactics to be employed with

which appellant and his present counsel now disagree does not

require a finding that the representation below was so inadequate

as to amount to a denial of effective assistance of counsel.” (citations

and punctuation omitted)). Madera otherwise makes no attempt to

show “how his trial counsel’s strategic decision not to reveal the

15
defense theory to the prosecutor before trial, and instead to wait and

present [the] self-defense claim to the jury, was objectively

unreasonable.” Pope, 311 Ga. at 560 (where trial counsel testified

that “she did not think that the trial judge would find [a pretrial

immunity motion] sufficiently compelling to grant [and] just saved

it for trial,” appellant failed to show that counsel’s strategic decision

was unreasonable); see also Dent v. State, 303 Ga. 110, 119 (4) (d)

(810 SE2d 527) (2018) (where trial counsel testified that he

strategically decided to forgo filing a pretrial immunity motion “as

he did not want to expose [appellant] to pre-trial cross-examination

from the State, thereby previewing [appellant’s] anticipated trial

testimony, and that he chose to attempt to demonstrate self-defense

to the jury, as opposed to the judge,” appellant failed to show that

counsel’s “tactical decision was unreasonable”). Madera thus has

failed to show that counsel’s performance was constitutionally

deficient, and this claim fails.

5. Finally, Madera argues that the cumulative effect of the trial

court’s errors and trial counsel’s deficient performance requires a

16
new trial. But here, we have identified no trial court error, and we

have assumed deficiency with respect to only one alleged instance of

counsel’s ineffective assistance and concluded that Madera failed to

show he was prejudiced thereby. Thus, “there are no errors to

aggregate, and his claim of cumulative error also fails.” Blocker v.

State, 316 Ga. 568, 583 (5) (889 SE2d 824) (2023) (citation and

punctuation omitted).

Judgment affirmed. All the Justices concur.

Decided March 5, 2024.

Murder. Cobb Superior Court. Before Judge Leonard.

Willingham Law Firm, David R. Willingham, for appellant.

Flynn D. Broady, Jr., District Attorney, Leslie A. Coots, Linda

J. Dunikoski, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Meghan

H. Hill, Clint C. Malcolm, Senior Assistant Attorneys General, for

appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: March 5, 2024

S24A0148. MADERA v. THE STATE.

BETHEL, Justice.

Francisco Javier Madera was convicted of the malice murder of

Juan Carlos Zambrano. 1 On appeal, Madera raises five claims of

error: (1) the trial court erred by denying his motion for new trial on

the general grounds; (2) the trial court erred by admitting video

footage of the injured Zambrano; (3) the trial court erred by

admitting evidence pursuant to OCGA § 24-8-803 (5); (4) trial

1 The crimes occurred on October 13, 2017. In January 2018, a Cobb

County grand jury indicted Madera for malice murder, felony murder, and
aggravated assault. Following a September 2019 jury trial, Madera was found
guilty of all counts. The trial court sentenced Madera to serve life in prison for
malice murder; the felony murder count was vacated by operation of law, and
the aggravated assault count merged for sentencing. Madera filed a timely
motion for new trial, which he amended through new counsel. Following a
hearing, the trial court denied the motion, as amended, on August 2, 2023.
Madera thereafter filed a timely notice of appeal, and the case was docketed to
this Court’s term commencing in December 2023 and submitted for a decision
on the briefs.
counsel was ineffective in two respects; and (5) the cumulative effect

of the trial court’s errors and counsel’s deficient performance

requires a new trial. For the reasons that follow, we affirm.

1. Viewed in the light most favorable to the jury’s verdicts, the

evidence presented at trial showed as follows. On the night of

October 13, 2017, Madera, Zambrano, and others attended a party

at the Cobb County home of Elma Escobar. While Madera and

Zambrano were dancing with the same woman, the two began

arguing, and, later in the evening, they physically fought each other.

Several partygoers separated Madera and Zambrano, and Escobar

asked Madera to leave.

Escobar walked Madera to his vehicle, and Madera began to

leave. As Escobar was walking back to the house, however, she

heard Madera “unlocking” his firearm and saw that he had stopped

his vehicle in the road and had exited the vehicle. Though Escobar

grabbed Madera and tried to calm him, he pointed his gun at

Zambrano and fired. Witnesses testified that, immediately before

the shooting, Zambrano was hugging another partygoer, and three

2
witnesses testified that Zambrano did not have anything in his

hands when he was shot and did not have a gun in his possession

that night. Escobar heard one gunshot followed by two more and

then saw Zambrano clutching his abdomen. Zambrano fell to the

ground after being shot. Edwin Santos Saez, another partygoer,

testified that, after Zambrano fell to the ground, Madera shot him

again. Another partygoer heard Madera direct two slurs at

Zambrano during the shooting. After shooting Zambrano, Madera

fled and was arrested two days later at a hotel in Little Rock,

Arkansas.

Escobar called an ambulance and the police, but Zambrano

asked to be driven to the hospital. Zambrano was placed in Saez’s

vehicle, and en route to the hospital, Saez crossed paths with and

flagged down officers responding to Escobar’s earlier call. Officers

found the unconscious Zambrano in the front passenger seat; he had

gunshot wounds to the left side of his abdomen and the upper area

of his back. The officers applied pressure to Zambrano’s wounds

while waiting for emergency medical services to arrive, and their

3
actions were captured by their body cameras. Zambrano was

transported to the hospital, where he died as a result of his wounds

the following day.

At trial, Madera testified that he acted in self-defense after

seeing a snub-nosed revolver in Zambrano’s right hand. The State,

however, presented evidence showing that no weapons were found

on Zambrano’s person or during a search of Saez’s vehicle and that

no guns or ammunition were found during a search of Escobar’s

home the day after the shooting.

On appeal, Madera first argues that the trial court should have

granted him a new trial on the “general grounds” because, he says,

some of the evidence against him was conflicting. See OCGA §§ 5-5-

20 (authorizing grant of new trial if the trial judge concludes that

the jury’s verdict is “contrary to evidence and the principles of

equity and justice”) and 5-5-21 (authorizing grant of new trial if the

trial judge concludes that the jury’s verdict is “decidedly and

strongly against the weight of the evidence”). The general grounds

require a trial court “to exercise a broad discretion to sit as a

4
‘thirteenth juror’” and “consider some of the things that he cannot

when assessing the legal sufficiency of the evidence, including any

conflicts in the evidence, the credibility of witnesses, and the weight

of the evidence.” Hinton v. State, 312 Ga. 258, 262 (1) (c) (862 SE2d

320) (2021). “We review whether the trial court exercised its

discretion as the thirteenth juror, but the decision to grant a new

trial on the general grounds is vested solely in the trial court and is

not subject to our review.” Weems v. State, 318 Ga. 98, 102-103 (3)

(___ SE2d ____) (2024). Here, in its order denying Madera’s motion

for new trial, the trial court, after stating that it independently

reviewed the evidence and considered the credibility of witnesses,

expressly rejected Madera’s general grounds claim. Thus, the trial

court’s order shows that the court properly exercised its discretion

under OCGA §§ 5-5-20 and 5-5-21, and Madera’s argument “is

otherwise not subject to review by this Court.”2 See Weems, 318 Ga.

2 Madera does not separately argue that the evidence was insufficient to

5
at 103 (3).

2. Madera next challenges the admission of a video and audio

recording from a police officer’s body camera which showed

emergency responders rendering aid to the wounded Zambrano in

Saez’s vehicle. Specifically, Madera asserts for the first time on

appeal that the admission of an “excessive number of photographic

exhibits” at trial, including autopsy photographs, rendered the body

camera footage cumulative and, thus, “unfairly prejudicial.”

Because Madera did not object on this basis at trial, we review this

claim only for plain error.3 See Gates v. State, 298 Ga. 324, 327 (3)

reviewed the sufficiency of the evidence as a matter of constitutional due
process, though many of us have questioned the soundness of that approach.
See King v. State, 316 Ga. 611, 616 (2) n.8 (889 SE2d 851) (2023). Like in King,
however, we need not determine the propriety of that approach in this case
because the evidence against Madera was constitutionally sufficient to affirm
his conviction.
3 In a pretrial motion in limine, Madera sought to have the footage

excluded on the basis that it had “no relevance to any matter in dispute.”
Noting that the footage showed Zambrano “injured, lying down in a car, and
moaning and writhing in pain,” Madera argued that the footage would “no
doubt be shocking to a jury” and that, as a result, “its prejudicial effect
substantially outweighs any probative value that it may have.” But the motion
in limine did not expressly challenge the footage as cumulative and Madera
did not lodge a separate contemporaneous objection on the related basis he now
argues on appeal, so our review is limited to plain error. See Washington v.
State, 312 Ga. 495, 500 (2) (b) n.8 (863 SE2d 109) (2021); Williams v. Harvey,

6
(781 SE2d 772) (2016); OCGA § 24-1-103 (a), (d). To establish plain

error, Madera bears the burden of demonstrating that the alleged

error “was not affirmatively waived”; that it was “clear and not open

to reasonable dispute”; that it “affected his substantial rights”; and

that it “seriously affected the fairness, integrity, or public reputation

of judicial proceedings.” Jones v. State, 317 Ga. 466, 473 (2) (893

SE2d 741) (2023) (citations and punctuation omitted). And where an

appellant fails to establish one element of the plain error test, we

need not consider the others. See id.

Madera argues only that the footage at issue should have been

excluded as cumulative of other exhibits admitted at trial,

specifically autopsy photographs. It is well settled, however, that the

erroneous admission of evidence that is merely cumulative of other

properly admitted evidence is generally harmless, particularly

where the evidence of the defendant’s guilt is strong. See, e.g., Allen

311 Ga. 439, 452 (2) (858 SE2d 479) (2021) (“Although a party does not waive
an error by failing to object to admission of evidence after a motion in limine is
denied, this rule cannot be invoked to preserve a different, if perhaps related,
error.” (citation and punctuation omitted)).
7
v. State, 310 Ga. 411, 417 (3) (851 SE2d 541) (2020); Smith v. State,

307 Ga. 106, 115 (5) (834 SE2d 750) (2019). And here, Madera does

not argue that the autopsy photographs were improperly admitted,

and the evidence of his guilt, which included the testimony of

multiple eyewitnesses who rebutted his claim of self-defense, was