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In the Supreme Court of Georgia

Decided: January 5, 2026

S25A1055. SMITH v. THE STATE.

BETHEL, Justice.

A jury found Travis Smith guilty of malice murder and other

crimes in connection with the shooting death of Cortez Dowell. 1 On

appeal, Smith argues that the trial court erred by admitting certain

1 The crimes occurred on July 27, 2014. On November 25, 2014, a Fulton

County grand jury indicted Smith for malice murder (Count 1), two counts of
felony murder (Counts 2 and 3), aggravated assault with a deadly weapon
(Count 4), two counts of possession of a firearm by a convicted felon (Counts 5
and 6), and possession of a firearm during the commission of a felony (Count
7). At a jury trial in June 2016, Smith was found guilty on Counts 1-5 and 7.
Count 6 was nolle prossed after the verdict.
The trial court sentenced Smith to serve life in prison without the
possibility of parole on Count 1, five years concurrent on Count 5, and five
years consecutive on Count 7. The court purported to merge the remaining
counts into the malice murder conviction, but the felony murder counts were
actually vacated by operation of law. See Depriest v. State, 319 Ga. 874, 874
n.1 (2024).
Smith filed a timely motion for new trial on June 29, 2016, which was
amended three years later in 2019 and then again in 2022 and in 2025, each
time through different counsel. Following a hearing in March 2025, the trial
court denied the amended motion on April 1, 2025. Smith then filed a timely
notice of appeal, which was docketed to the August 2025 term of this Court and
submitted for a decision on the briefs.
testimony and by denying his motions for mistrial. He also argues

that trial counsel rendered ineffective assistance by failing to object

to the State’s closing argument and to certain jury instructions. For

the reasons that follow, we affirm.

1. The evidence admitted at trial showed the following. On July

27, 2014, Smith was playing dice with Dowell at a house where

dozens had gathered to eat, drink, and hang out. Kisha McNeil saw

Smith and Dowell start “having words” and “tussling.” McNeil told

police she saw Smith shoot Dowell three times, though she testified

at trial that she saw the men arguing and fighting but did not see

the gun and only heard the shots. After she ran outside, McNeil saw

Smith still carrying a gun and another man with a gun who then

asked Smith, “Bruh, why the f**k did you do that?” According to

McNeil, Smith replied, “[T]he mother-f**ker should not [have] tried

me.”

After the incident, Terrence Douglas contacted police as an

anonymous tipster, reporting that Smith and Dowell got into an

argument that became physical and that Smith pulled a gun out of

2
his waistband and shot Dowell three times. At trial, Douglas

testified that a fight broke out between Dowell and Smith and that

he saw Smith with a gun, though he denied telling investigators that

he saw Smith shoot Dowell.

Nicholas Crawford, a third witness and an acquaintance of

Dowell’s, saw Dowell gambling and, after the fight broke out, saw

Dowell punch someone. Crawford then saw a gun raised and Dowell

fighting with the person with the gun, after which Crawford heard

gunshots. Dowell died as a result of gunshot wounds to his abdomen.

2. Smith first argues that the trial court abused its discretion

by admitting certain evidence and testimony at trial because, he

says, the evidence constituted hearsay and its admission violated his

rights under the Confrontation Clause of the Sixth Amendment.2

His claims fail.

2 Although this portion of Smith’s brief contains broad citations to the

record, he makes no effort to identify with any specificity the precise testimony
he contends should have been excluded or to explain or contextualize any of
the cited portions of testimony. Further hampering our review of these claims,
Smith provides only cursory analysis as to why the evidence at issue amounted
to hearsay or how its admission violated his right of confrontation. Despite
these omissions, we reviewed the record in an attempt to determine the specific
evidence or testimony that is the subject of each of Smith’s claims.
3
(a) First, Smith asserts that the trial court abused its

discretion by overruling his objections to McNeil’s in-court

identification of him. First, when the prosecutor initially asked

McNeil if the person she heard say “the mother-f**ker should not

[have] tried me” was in the courtroom, Smith interposed an objection

before McNeil could respond, though he did not state the grounds

for the objection. The trial court overruled the objection, and McNeil

was permitted to respond, indicating, “I think so,” and then

identifying Smith. Again, Smith objected, arguing that McNeil

“didn’t even say that she could” identify Smith, but rather “[s]he said

I think so.” The trial court made no definitive ruling on the second

objection. Now, on appeal, Smith argues that McNeil’s identification

should have been excluded on hearsay and Confrontation Clause

grounds.

To preserve for ordinary appellate review a trial court’s ruling

admitting evidence, a defendant must not only object to the

introduction of the evidence at trial, but he must also specify the

particular basis for his objection. See Adams v. State, 306 Ga. 1, 3

4
(2019) (“[T]o preserve an objection for ordinary appellate review, the

specific ground of the objection must be made at the time the

challenged evidence is offered.” (cleaned up)). See also OCGA § 24-

1-103(a)(1) (a trial court’s ruling admitting evidence is ordinarily

reviewable only when “a timely objection or motion to strike appears

of record, stating the specific ground of objection, if the specific

ground was not apparent from the context”). Because Smith did not

specifically object on hearsay or Confrontation Clause grounds to the

admission of this testimony at trial and those grounds were not

apparent from the context, we review only for plain error. See

Pittman v. State, 318 Ga. 819, 830 (2024). To show plain error, Smith

bears the burden of showing legal error that was not affirmatively

waived, was clear and obvious, “which generally means there must

be on-point controlling authority or the unequivocally clear words of

a statute or rule that plainly establish that the trial court erred,”

affected his substantial rights, which generally means it must have

affected the outcome of the trial court proceedings, and seriously

affected the fairness, integrity, or public reputation of judicial

5
proceedings. Dees v. State, 322 Ga. 498, 500–01 (2025) (cleaned up).

See also Gates v. State, 298 Ga. 324, 327 (2016). Smith cannot

establish clear or obvious error here, so his claim fails.

As an initial matter, McNeil’s testimony identifying Smith as

the person she saw after the crimes does not meet the definition of

hearsay. See OCGA § 24-8-801(c) (“‘Hearsay’ means a statement,

other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted.” (emphasis supplied)). See also Davenport v. State, 309 Ga.

385, 391 (2020) (witness’s testimony based on her own observations,

not what someone else told her, is not hearsay). Accordingly, there

was no error, let alone plain error, in the trial court’s refusal to

exclude this testimony as hearsay.

Smith’s argument that McNeil’s testimony should have been

excluded under the Confrontation Clause of the Sixth Amendment

to the United States Constitution likewise fails. As we have

explained, “[w]ith respect to the right to confrontation, the Sixth

Amendment provides two types of protections for a criminal

6
defendant: the right physically to face those who testify against him,

and the right to conduct cross-examination.” Burney v. State, 309

Ga. 273, 282–83 (2020) (quotation marks omitted). And here, McNeil

testified at trial and Smith did, in fact, cross-examine her. As such,

Smith has failed to show that his right to confront this witness was

violated. See id.

(b) Smith next argues that the trial court erred by admitting

testimony by an investigating detective regarding his conversation

with a witness who subsequently provided a photo of Smith to the

detective. Smith’s brief, however, fails to specify which portion of the

detective’s testimony that he contends should have been excluded

and instead merely references a span of pages in the trial transcript.

From our review of the portion of the record Smith cites in support

of this claim of error, the trial court in fact sustained Smith’s

hearsay objections to the detective’s testimony. As such, this claim

presents no cause for reversal.

Additionally, Smith did not raise an objection under the

Confrontation Clause to the portion of the detective’s testimony that

7
he cites in his brief, so we review that claim only for plain error. And

under plain error review, Smith’s argument, which he fails to

support with authority, fails under the second prong because he

cannot establish clear or obvious error. The detective did not testify

to the substance of the witness’s statements about the picture she

sent to him – only the fact that she sent it to him. It is not clear

under existing law that the mere fact that a picture was sent,

without any context or additional commentary, is a “statement” or

an “assertion” that would be subject to the Confrontation Clause.

See Dees, 322 Ga. at 500; State v. Gilmore, 312 Ga. 289, 293 (2021)

(noting that “this Court and others have concluded that nonverbal

conduct does not constitute a statement when it is not intended to

be an assertion” (emphasis in original)). See also OCGA § 24-8-801

(defining a “statement” to include the “[n]onverbal conduct of a

person, if it is intended by the person as an assertion”); State v. Orr,

305 Ga. 729, 740–41 (2019) (noting that “the key to the definition of

‘statement’ is that nothing is an assertion unless intended to be one,

[such as] … the act of an eyewitness pointing to identify a suspect in

8
a lineup as the perpetrator of a crime”). Accordingly, Smith cannot

establish that the trial court plainly erred by failing to exclude the

evidence on this basis.

by admitting the photograph of Smith the witness provided to the

detective because, he says, the evidence was hearsay and its

admission violated his rights under the Confrontation Clause. But

the portion of the record Smith cites in support of this claim of error

reflects that the trial court sustained Smith’s hearsay objection to

the prosecutor’s asking the detective whether other information the

witness provided with the photo “contain[ed] a name.” The record

does not reflect that Smith otherwise objected to the photograph’s

admission, so we review only for plain error. Beyond his broad

assertions that the photograph should have been excluded as

hearsay and under the Confrontation Clause, Smith makes no effort

to explain either how the photograph itself constitutes hearsay or

how its admission resulted in the violation of his right of

confrontation. And in fact, the case law undercuts Smith’s position.

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Decisions applying the Confrontation Clause have generally held

that the Clause “applies only to testimonial statements, not to

inanimate objects that cannot be cross-examined like … shell

casing[s] and photographs.” Walker v. State, 308 Ga. 749, 758 (2020),

disapproved of on other grounds by Johnson v. State, 315 Ga. 876,

885 n.8 (2023). See also United States v. Farrad, 895 F3d 859, 877

(6th Cir. 2018) (rejecting defendant’s argument that photographs of

guns—including one featuring a person who looked like the

defendant and others showing a close-up of a hand holding a gun—

“were all out-of-court ‘statements’ that [the defendant] illegally

possessed a firearm,” and concluding that the photographs did not

constitute nonverbal statements (citation and punctuation

omitted)); Dees, 322 Ga. at 502 (not clear or obvious error for trial

court to exclude un-objected-to hearsay). As such, Smith has not met

his burden of showing that the trial court abused its discretion by

failing to exclude the photograph on either basis, and this claim

fails. See Williams v. State, 316 Ga. 304, 309 (2023) (“[B]ecause

currently existing legal authority stands for the contrary position,

10
the alleged error must be considered subject to reasonable dispute

and thus cannot constitute plain error.” (quotation marks omitted)).

(d) Lastly, Smith contends that the trial court should have

excluded the detective’s testimony that the witness who provided

the photograph of Smith “gave him helpful information” on hearsay

and Confrontation Clause grounds. But the portion of the record

Smith cites in support of this enumeration does not contain any

testimony to that effect, and Smith’s brief contains no additional

details that would help us identify the specific testimony at issue.

Thus, to the extent this enumeration concerns additional evidence

not already addressed above, we conclude that Smith has not carried

his burden to show that the testimony he obliquely refers to should

have been excluded on hearsay and Confrontation Clause grounds.

See Roberson v. State, 300 Ga. 632, 636 (2017) (holding that “[i]t is

well established that the burden is on the party alleging error to

show it by the record” (cleaned up)).

3. Smith next argues that the trial court abused its discretion

by denying his motions for mistrial after the State elicited testimony

11
about witness intimidation and after a detective commented on

Smith’s invocation of his right to remain silent.

(a) Turning first to the issue of witness-intimidation evidence,

Smith points to three statements made by McNeil on direct

examination that, he says, warranted a mistrial. Specifically,

McNeil acknowledged that she had reported to the district attorney’s

office before trial that she was scared to testify because she was

“hearing stuff in the street,” that she had moved because she “was

hearing stuff in the street [that she was] going to get killed,” and

that she had inquired to the district attorney’s office about

protective custody. Smith objected after each of the three responses,

and the trial court sustained each objection. Additionally, the trial

court ordered that the second response be stricken and gave a

curative instruction to the jury. Later, outside the jury’s presence,3

Smith moved for a mistrial on the basis that McNeil had testified

that she was afraid she was going to be killed and mentioned

3 Smith first moved for a mistrial after the second response at issue, but

the trial court deferred its ruling.
12
requesting protective custody. The trial court denied the motion for

mistrial but offered to give a curative instruction as to the testimony

about protective custody, though the record does not show that

Smith accepted the court’s offer. Now, on appeal, Smith asserts that

McNeil’s testimony about witness intimidation was improperly

admitted and that a mistrial was the only appropriate remedy.4 We

disagree.

“Whether to grant a mistrial is within the trial court’s

discretion, which an appellate court will not disturb unless there is

a showing that a mistrial is essential to the preservation of the right

to a fair trial.” Parker v. State, 309 Ga. 736, 738 (2020) (quotation

marks omitted).

Here, the trial court sustained Smith’s objections to McNeil’s

4 In this section of his appellate brief, Smith also briefly references a

question posed to Douglas by the prosecutor as to whether “people get
retaliated against when they testify.” But the record reflects that Smith
objected to this question, the trial court sustained the objection, and Douglas
did not respond. Smith did not move for a mistrial based on this question. Thus,
to the extent Smith asserts on appeal that the trial court should have granted
a mistrial following this question, his failure to promptly move for a mistrial
means that the issue was not preserved for appellate review. See Pittman, 318
Ga. at 829.
13
testimony regarding the threats against her and her inquiry about

protective custody, struck McNeil’s second response at issue and

gave a curative instruction about that response, and offered an

additional curative instruction regarding the response about her

protective-custody inquiry, which Smith did not pursue. The trial

court’s actions preserved Smith’s right to a fair trial, and there was

no abuse of discretion in denying Smith’s motion for mistrial. See

Hartsfield v. State, 294 Ga. 883, 886 (2014) (no abuse of discretion

in denying a mistrial where the trial court sustained the objection,

admonished the prosecuting attorney in the presence of the jury, and

told the jury to disregard the statement); Jackson v. State, 292 Ga.

685, 689 (2013) (no abuse of discretion in denying a mistrial where

trial court sustained objection and gave curative instruction

regarding improper reference). See also Perkins v. State, 313 Ga.

885, 897 (2022) (“[J]uries are presumed to follow curative

instructions in the absence of proof to the contrary.” (quotation

marks omitted)).

(b) Smith also argues that a mistrial was warranted following

14
the detective’s testimony that Smith “lawyered up” and did not wish

to talk to investigators. Smith objected to this testimony

immediately, which the trial court sustained. The court struck the

testimony and instructed the jury to disregard it. After the

detective’s testimony had concluded, as well as that of a following

witness, and after the parties began discussing the charges with the

court, Smith moved for a mistrial based on the detective’s earlier

testimony. Smith’s counsel claimed below and on appeal that she did

not hear the detective’s testimony until co-counsel pointed it out to

her. However, the record shows that Smith’s counsel lodged a

contemporaneous objection to the same, which the trial court

sustained.

“It is well established that a motion for a mistrial must be

promptly made as soon as the party is aware of the matter giving

rise to the motion.” Lee v. State, 317 Ga. 880, 884 (2023) (quotation

marks omitted). Because Smith did not move for a mistrial

contemporaneously with the testimony at issue and because Smith’s

excuse for failing to do so is belied by the record, the issue is not

15
preserved for appellate review. See Pittman, 318 Ga. at 829 (claim

of error not timely made where defendant did not move for mistrial

until after the prosecutor had completed its examination of the

witness); Coley v. State, 305 Ga. 658, 661–62 (2019) (claim of error

related to denial of mistrial following admission of bad-character

evidence was not preserved for appeal where the motion was not

made contemporaneously with the testimony at issue); Burrell v.

State, 301 Ga. 21, 26 (2017) (where State’s witness had emotional

outburst on direct-examination, defendant’s motion for mistrial

made after the defendant had completed the cross-examination

failed to preserve the issue for review).

4. Smith alleges that his trial counsel provided constitutionally

ineffective assistance in several ways. To demonstrate ineffective

assistance, a defendant must show both that his trial counsel

performed deficiently and that he was prejudiced by the deficient

performance. Smith v. State, 315 Ga. 357, 365 (2022) (citing

Strickland v. Washington, 466 US 668, 687 (1984)). The deficiency

prong requires the defendant to “show that his attorney performed

16
at trial in an objectively unreasonable way considering all the

circumstances and in light of prevailing professional norms.”

Williams v. State, 316 Ga. 304, 314–15 (2023) (quotation marks

omitted). The prejudice prong requires the defendant to show a

“reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Smith, 315

Ga. at 365 (quotation marks omitted). Showing that the error had

“some conceivable effect on the outcome of the proceeding” is not

enough; the defendant must instead “establish a reasonable

probability of a different result, which means a probability sufficient

to undermine confidence in the outcome.” Neuman v. State, 311 Ga.

83, 96–97 (2021) (quotation marks omitted). Demonstrating

ineffective assistance is a “high bar,” and if a defendant fails to prove

either deficiency or prejudice, we are not required to consider the

other. Mohamed v. State, 307 Ga. 89, 93 (2019).

(a) Smith argues that trial counsel should have objected to two

instances in the State’s closing where the State raised Smith’s

alleged future dangerousness, one of which also ran afoul of the

17
“golden rule.” Because Smith has not shown deficient performance,

these arguments fail.

In closing, the prosecutor argued:

We have a man, Travis Smith, who just shot someone for
no reason, in front of 15 to 30 people, in that room. Would
you be afraid of him? He didn’t care who saw, because he
was expecting exactly what happened. He was expecting
that no one would come in here and say what he did,
because he’s bad enough, because they’re afraid of him.
But ain’t nobody afraid of Travis. The State of Georgia is
not afraid of Travis. That’s exactly why he did it, because
he was expecting everybody to be quiet. He was expecting
it to go away.

On appeal, Smith argues that counsel should have objected to the

first part of the State’s closing because the question to the jury —

“Would you be afraid of him?” — ran afoul of the “golden rule” and

also constituted an improper future dangerousness argument. We

disagree.

“Under Georgia law, golden rule violations occur when a party

asks the jurors to place themselves in the position of the victims.”

King v. State, 316 Ga. 611, 624 (2023) (quotation marks omitted).

Here, however, the prosecutor did not ask the jurors to put

18
themselves in the victim’s position. Instead, the prosecutor’s

question to the jury came in the broader context of responding to

points Smith emphasized during his closing argument regarding

Douglas’s initial anonymous tip to police, as well as Smith’s efforts

to discredit the testimony of Douglas and other reluctant witnesses.

Accordingly, an objection to this portion of the State’s closing

argument based on the “golden rule” would have been meritless, and

failure to make a meritless objection is not constitutionally deficient.

See id. (no deficient performance for failing to make a “golden rule”

objection where the prosecutor did not ask the jurors to place

themselves in the victim’s position).

Nor would an objection on “future dangerousness” grounds

have succeeded because the prosecutor’s argument was not an

improper future dangerousness argument. “A prosecutor argues

future dangerousness when the prosecutor asserts there will be

more victims if the defendant is not found guilty, or the community

or witnesses will be endangered if the defendant is not found guilty.”

Fulton v. State, 278 Ga. 58, 65 (2004) (cleaned up). The prosecutor’s

19
statement here was not that kind of argument. Instead, it is clear

from the context that the prosecutor was making a permissible

inference from the evidence. See Willis v. State, 304 Ga. 686, 719

(2018). That is, the prosecutor was suggesting that Smith, who had

brazenly killed Dowell in the presence of numerous witnesses, might

have expected that those witnesses would be afraid of him and would

therefore not testify against him. See Arrington v. State, 286 Ga.

335, 346–47 (2009) (noting the prosecution’s wide latitude to argue

inferences from the evidence and declining to construe the State’s

argument based on such inferences as an improper future

dangerousness argument). In other words, the prosecutor was not

suggesting that Smith might hurt more people in the future if he

were found not guilty, which is the kind of argument we have held

is improper. Therefore, counsel was not deficient for failing to object

on these grounds. See Smith, 315 Ga. at 367 (“failure to make a

meritless objection is not deficient performance”).

(b) In his second claim of ineffective assistance, Smith asserts

that trial counsel should have objected to the inclusion in the jury

20
charge of “witness intelligence” as a factor to consider in evaluating

witness credibility. 5 The Court has repeatedly held that while the

better practice is to “omit [reference to witness] intelligence as one

of the factors in the credibility charge, its inclusion is not reversible

error.” Jackson v. State, 318 Ga. 393, 404 (2024) (quotation marks

omitted) (collecting cases). “And because the inclusion of the

intelligence portion of the instruction is not itself reversible error,”

Smith “cannot show the prejudice necessary to succeed on his claim

that counsel rendered ineffective assistance in failing to object to the

charge, and this claim fails.” Id.

5 The trial court instructed the jury:

You must determine the credibility or believability of the
witnesses. It is for you to determine which witness or witnesses
you believe or do not believe, if there are some whom you do not
believe. In deciding credibility, you may consider all of the facts
and circumstances of the case, including the manner in which the
witnesses testify, their intelligence, their interest or lack of interest
in the case, their means and opportunity for knowing the facts
about which they testify, the nature of the facts about which they
testify, [and] the probability or improbability of their testimony
and of the other occurrences about which they testify. (Emphasis
added.)

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the pattern jury charge on prior consistent statements.6 Smith

argues that counsel’s failure to object prejudiced him because the

instruction placed undue emphasis on Douglas’s prior identification

of Smith through his anonymous tip. We are not persuaded.

This Court has said that “an instruction on prior consistent

statements should no longer be given except where the

circumstances of an unusual case suggest that the jury may have

the mistaken impression that it cannot consider a prior consistent

statement as substantive evidence.” Stephens v. State, 289 Ga. 758,

759 (2011). But we also have said that giving that instruction “will

usually not be reversible error,” particularly where “the court’s

instructions, taken as a whole, would not mislead a jury of average

intelligence.” Williamson v. State, 305 Ga. 889, 895 (2019)

(collecting cases). In this case, the jury was charged that “evidence”

6 The trial court instructed the jury:

Should you find that any witness has made a statement prior to
this case that is consistent with that witness’[s] testimony from the
witness stand, and such prior consistent statement is material to
the case and to the witness’[s] testimony, then you are authorized
to consider the other statement as substantive evidence.
22
includes all of the testimony of the witnesses and that the jury was

to determine what testimony to believe and what weight to give each

witness’s testimony. The jury also was instructed about how to

determine credibility. And, as we have recognized, the pattern

instruction at issue “does not explicitly direct the jury to place any

additional weight on prior consistent statements beyond that which

the law already gives them.” Id. Given these circumstances, we see

no reversible error in this instruction. Id. And because the

instruction on prior consistent statements was not itself reversible

error here, Smith “cannot show the prejudice necessary to succeed

on his claim that counsel rendered ineffective assistance in failing

to object to the charge, and this claim fails.” Jackson, 318 Ga. at 404.

5. Finally, we consider whether the combined prejudicial effect

of trial counsel’s assumed deficiencies warrants a new trial. See

Schofield v. Holsey, 281 Ga. 809, 811 n.1 (2007), overruled on other

grounds by State v. Lane, 308 Ga. 10, 17 (2020). “[W]e have stated

that a defendant must show that the cumulative prejudice from any

assumed deficiencies showed a reasonable probability that the

23
results of the proceeding would have been different in the absence

of the alleged deficiencies.” Waters v. State, 317 Ga. 822, 832 (2023)

(cleaned up). For purposes of this analysis, we presumed deficient

performance of counsel with respect to the instructions on witness

intelligence and prior consistent statements. But the collective effect

of these presumed errors is not sufficiently harmful to warrant a

new trial because, as we already determined above, there was little,

if any, prejudicial effect from the presumed deficiencies. See Lee v.

State, 318 Ga. 412, 430 (2024). Accordingly, Smith’s claim of

cumulative error fails.

Judgment affirmed. All the Justices concur.