In the Supreme Court of Georgia

Decided: May 3, 2021

S21A0305. OUTLAW v. THE STATE.

 NAHMIAS, Presiding Justice.

Appellant Charles Outlaw was convicted of malice murder and 

other crimes in connection with the shooting death of Angela 

Rabotte. In this appeal, he contends that the trial court erred by 

denying his motions to suppress evidence derived from his cell phone

records and statements that he made during a meeting in jail with 

his girlfriend. He also argues that his trial counsel provided 

ineffective assistance by failing to request a jury instruction on 

voluntary manslaughter. These claims are meritless, so we affirm.1

 1 Rabotte’s dead body was found on April 3, 2014. In October 2014, a 

Gwinnett County grand jury indicted Appellant for malice murder, felony 

murder, aggravated assault, concealing the death of another, possession of a 

firearm during the commission of a felony, possession of a firearm by a 

convicted felon, and use of a firearm by a convicted felon during the commission 

of a felony. Appellant’s first trial, which began on August 15, 2016, resulted in 
2

1. The evidence presented at Appellant’s trial showed the 

following. Appellant and Rabotte had known each other as children 

and had reconnected in February 2014; they were friends and may 

have been romantically involved. In the early morning hours of 

March 29, 2014, Rabotte worked as a dancer at a bachelor party in 

Smyrna. When the party ended around 5:00 a.m., another dancer 

saw Rabotte carrying a money counter and overheard her on her cell 

phone arguing and asking for a ride home.

Later that day, Rabotte’s friends became concerned when she 

did not arrive home. They reported to the police that she was 

 

a mistrial during the presentation of the evidence. During his second trial, 

which was held from August 22 to 26, 2016, the trial court bifurcated the 

counts of possession and use of a firearm by a convicted felon, and the jury 

found Appellant guilty of the remaining counts. The court then nolle prossed 

the bifurcated counts and sentenced Appellant as a recidivist to serve life in 

prison without the possibility of parole for malice murder and consecutive 

terms of 10 years for concealing a death and five years for possession of a 

firearm during the commission of a felony; the court merged the remaining 

counts (although the felony murder count was actually vacated by operation of 

law, see Malcolm v. State, 263 Ga. 369, 374 (434 SE2d 479) (1993)). Appellant 

filed a timely motion for new trial, which he amended through new counsel in 

October 2018. After an evidentiary hearing, the trial court denied the motion 

in May 2020. Appellant filed a timely notice of appeal, and the case was 

docketed to the term of this Court beginning in December 2020 and submitted 

for decision on the briefs.
3

missing and organized a search party in Norcross on March 31. 

Appellant was there, and a detective interviewed him that evening. 

Appellant said that he drove a Dodge Dart to pick up Rabotte after 

the party in Smyrna; on the way to Gwinnett County, they argued; 

he parked near his girlfriend Lakisha Fort’s house in Norcross and 

walked to the house while Rabotte stayed in the car so Fort would 

not see her; and when he returned about 15 minutes later, Rabotte

and the bags of clothes and money counter she had been carrying 

were gone. On April 1, after a second interview, Appellant was 

arrested on charges (cocaine possession and violating the terms of 

his probation) unrelated to Rabotte’s murder.

On April 3, Rabotte’s dead body was found in a wooded area 

near Lilburn Industrial Way in Lilburn, where it appeared to have 

been carried and then covered with pine straw. The medical 

examiner who performed Rabotte’s autopsy testified that Rabotte 

died from a contact gunshot wound to the left side of the back of her 

head. Investigators searched the Dodge that Appellant had been 

driving and found gunshot primer residue on the interior roof above 
4

the driver’s area. Investigators also searched a house that Appellant 

often visited and found wrapped in a blanket in the attic a money 

counter that was the same make, model, and color as the one

Rabotte was seen carrying at the bachelor party.

About three weeks after the murder, on April 24, Appellant’s 

girlfriend Fort visited him in jail. A detective had provided her with 

a small audio-recording device, which she hid in her clothing and 

used to record the meeting with Appellant; the audio recording of 

the meeting was played for the jury during the trial. The recording 

reflects that Appellant maintained that he did not kill Rabotte. Fort 

testified, however, that during several lengthy pauses (which are 

also reflected on the recording), Appellant whispered, mouthed 

words, and used body language to tell her that he and Rabotte 

argued in the car; Rabotte put a gun to his head; and he took the 

gun and shot her in the back of the head.

Fort also testified that her brother told her that Appellant had 

woken him on the morning Rabotte was last seen alive, saying “I 

think I killed the old girl.” Appellant’s jail cellmate testified that 
5

Appellant admitted shooting Rabotte in the head with a handgun as 

they argued, then putting her in the trunk, disposing of her body, 

and having the car cleaned. 

In addition, Rabotte’s cell phone records showed that on the 

morning she was last seen, March 29, her phone was in Smyrna at 

4:52 a.m., near Jimmy Carter Boulevard at 5:32 a.m., and heading 

toward Lilburn at 5:41 a.m. Rabotte’s phone was not used again 

after that time. The records for Appellant’s two cell phones, one of 

which received service from MetroPCS and the other from Verizon,

showed that on March 29, both phones were near Jimmy Carter 

Boulevard around 5:24 a.m. The MetroPCS records placed that 

phone near Lilburn Industrial Way, where Rabotte’s body was 

found, at 5:49 a.m. 

2. Appellant contends first that the trial court erred by denying 

his motion to suppress evidence of cell-site location information 

(CSLI) that was obtained from his cell phone records. See Lofton v. 

State, ___ Ga. ___, ___ (854 SE2d 690, 696 n.3) (2021) (explaining 

CSLI). We disagree.
6

(a) On April 10, 2014, seven days after Rabotte’s body was

found, the State filed motions that requested court orders requiring 

Verizon and MetroPCS to disclose Appellant’s cell phone records, 

including CSLI, from March 27 through April 5, 2014. The motions

detailed the facts of the investigation into Rabotte’s murder and said 

that the records would be “relevant and material to the 

investigation.” The trial court then issued orders that required

Verizon and MetroPCS to disclose the requested records under the

federal Stored Communications Act (SCA). See 18 USC § 2703 (c) (1) 

(B) & (d).2

 2 18 USC § 2703 (c) (1) authorizes a governmental entity to “require a 

provider of electronic communication 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 subparagraph (c) (1)

(B), when the governmental entity “obtains a court order for such disclosure 

under subsection (d) of this section.” 18 USC § 2703 (d) then says, in pertinent 

part:

A court order for disclosure under subsection (b) or (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 records or other information sought . . . are 

relevant and material to an ongoing criminal investigation. In the 

case of a State governmental authority, such a court order shall 

not issue if prohibited by the law of such State. 

OCGA § 16-11-66.1 (a) permits a prosecutor to require the disclosure of cell 
7

Before trial, Appellant filed a motion to suppress the CSLI 

evidence derived from the MetroPCS records; the trial court 

ultimately denied the motion summarily. During the trial, the court 

admitted into evidence and an investigator testified about the

Verizon and MetroPCS records and two maps that the investigator

had created. As mentioned above, one of the maps plotted both of 

Appellant’s phones near Jimmy Carter Boulevard, which was the 

area where Rabotte’s phone was also located, around 5:24 a.m. on 

March 29; the other map plotted Appellant’s MetroPCS phone near 

Lilburn Industrial Way, where Rabotte’s body was later found, at 

5:49 a.m.

(b) Appellant argues that the State’s failure to obtain a search 

warrant for his cell phone records violated his right against 

unreasonable searches and seizures under the Fourth Amendment 

to the United States Constitution. Appellant relies on the United 

States Supreme Court’s 2018 decision in Carpenter v. United States, 

 

phone records “to the extent and under the procedures and conditions provided 

for by the laws of the United States.”
8

___ U.S. ___, ___ (138 SCt 2206, 201 LE2d 507) (2018), which held 

that “accessing seven days of CSLI constitutes a Fourth Amendment 

search” for which the government generally must obtain a search 

warrant based on probable cause, not merely a court order issued 

pursuant to 18 USC § 2703 (d). Carpenter, 138 SCt at 2217 n.3, 2221. 

Appellant argues that the trial court therefore should have 

suppressed the CSLI evidence derived from his cell phone records 

under the exclusionary rule for violations of the Fourth Amendment. 

See Illinois v. Krull, 480 U.S. 340, 347 (107 SCt 1160, 94 LE2d 364) 

(1987) (“When evidence is obtained in violation of the Fourth 

Amendment, the judicially developed exclusionary rule usually 

precludes its use in a criminal proceeding against the victim of the 

illegal search and seizure.”). We can assume without deciding that

Appellant preserved for ordinary appellate review his claim that the 

trial court should have suppressed the CSLI evidence obtained from 

his Verizon records, because the exclusionary rule did not preclude 

the admission of either that evidence or the CSLI evidence derived 

from his MetroPCS records.
9

As we recently explained in Lofton, two good-faith exceptions 

to the exclusionary rule apply to this situation. See 854 SE2d at 701. 

Lofton challenged the denial of his motion to suppress CSLI 

evidence derived from a detective’s request for the disclosure of 

Lofton’s cell phone records under another provision of the SCA, 18 

USC § 2702 (c) (4), on the ground that the detective’s failure to 

obtain a search warrant for the records violated the Fourth 

Amendment under Carpenter. See Lofton, 854 SE2d at 696-699.3

Noting that Carpenter was decided four years after Lofton’s trial, we 

held that the good-faith exception to the exclusionary rule for 

searches conducted in objectively reasonable reliance on “‘a statute 

that appeared legitimately to allow a warrantless . . . search’”

applied, because at the time, 18 USC § 2702 (c) (4) authorized the 

detective to obtain the cell phone records without a search warrant.

Lofton, 854 SE2d at 701-702 (quoting Krull, 480 U.S. at 360). We 

 3 18 USC § 2702 (c) (4) permits a cell phone service provider to disclose a 

customer’s records to a governmental entity if the provider has a good faith 

belief “that an emergency involving danger of death or serious physical injury 

to any person requires disclosure without delay.”
10

then determined that the exception for “searches conducted in 

objectively reasonable reliance on binding appellate precedent that 

is later overruled” also applied, because at the time of the 

investigative conduct, appellate precedent binding in Georgia courts 

held that a search warrant was not required to obtain CSLI. See id. 

at 697, 701-702 (citing Davis v. United States, 564 U.S. 229, 241 (131 

SCt 2419, 180 LE2d 285) (2011)).4

Similarly, in this case, Carpenter was decided more than four 

years after the State requested and acquired Appellant’s cell phone 

records in April 2014. At that time, 18 USC § 2703 (c) (1) (B) and (d) 

authorized the State to obtain a court order requiring the disclosure 

 4 As we discussed in Lofton, in United States v. Leon, 468 U.S. 897 (104 

SCt 3405, 82 LE2d 677) (1984), the United States Supreme Court recognized 

the first good-faith exception to the exclusionary rule, which applies to 

evidence obtained by an officer acting in good-faith reliance on a search

warrant issued by a magistrate. See Lofton, 854 SE2d at 701 n.17. In Gary v. 

State, 262 Ga. 573 (422 SE2d 426) (1992), this Court construed OCGA §17-5-

30 to hold that there is no Leon good-faith exception to the exclusionary rule 

in Georgia. See Lofton, 854 SE2d at 701 n.17. As we had recently explained in 

Mobley v. State, 307 Ga. 59 (834 SE2d 785) (2019), however, Gary’s reasoning 

was unsound, and although in Mobley we deemed it unnecessary to decide 

whether to overrule Gary’s specific holding, we concluded that Gary does not 

foreclose the application of other exceptions to the exclusionary rule, including 

the Krull and Davis good-faith exceptions that apply here. See Lofton, 854 

SE2d at 701-702 nn.17 & 18.
11

of the records if the State offered “specific and articulable facts” 

showing that there were “reasonable grounds to believe” that the 

records were “relevant and material to an ongoing criminal 

investigation.” Appellant does not dispute that the State’s motions

requesting the court orders complied with those provisions of the 

SCA. And although Lofton involved a different SCA provision (18 

USC § 2702 (c) (4)), the good-faith exception for objectively 

reasonable reliance on a statute that appeared legitimately to allow 

a warrantless search applies with equal force here, because 18 USC 

§ 2703 (c) (1) (B) and (d) authorized the State’s investigative conduct 

at the time. See Smarr v. State, 317 Ga. App. 584, 593-594 & n.24 

(732 SE2d 110) (2012) (holding that trial counsel was not ineffective 

in failing to move to suppress the defendant’s cell phone records, 

which the State obtained pursuant to a court order under 18 USC § 

2703 (c) (1) (B) and (d), because a motion to suppress would not have 

been successful given the law at the time), overruled on other 

grounds by Carpenter, 138 SCt at 2221.

Also as in Lofton, when the State requested and obtained 
12

Appellant’s cell phone records in April 2014, appellate precedent

binding in Georgia courts held that defendants generally had no 

reasonable expectation of privacy in their cell phone records and 

therefore lacked standing to raise a Fourth Amendment challenge 

to the disclosure of the records. See Lofton, 854 SE2d at 697, 702. 

See also Ross v. State, 296 Ga. 636, 639 (769 SE2d 43) (2015), 

overruled by Carpenter, 138 SCt at 2221; Registe v. State, 292 Ga. 

154, 156 (734 SE2d 19) (2012), overruled by Carpenter, 138 SCt at 

2221; Smarr, 317 Ga. App. at 593-594 & nn.24-25. Because 18 USC 

§ 2703 (c) (1) (B) and (d) and binding appellate precedent authorized 

the State’s investigative conduct in April 2014, the exclusionary rule 

does not apply. Accordingly, the trial court properly denied 

Appellant’s motion to suppress the CSLI evidence. See Lofton, 854 

SE2d at 702. See also Swinson v. State, Case No. S21A0396, 2021 

WL 769457, at *3-5 (decided Mar. 1, 2021) (relying on Lofton to hold 

that the exclusionary rule did not apply to CSLI evidence that was 

obtained pursuant to 18 USC § 2702 (c) (4) and controlling appellate 

precedent in Georgia at the time); Gialenios v. State, Case No. 
13

S20A1196, 2021 WL 769417, at *4-6 (decided Mar. 1, 2021) (same).5

3. Appellant contends next that the trial court erred by denying 

his motion to suppress evidence of the statements he made during 

 5 We note that our decisions in Lofton, Swinson, and Gialenios have not 

been consistent in identifying the point in time at which an officer’s reasonable 

reliance on a statute or on binding appellate precedent should be determined.

See Lofton, 854 SE2d at 697, 702 (noting that the SCA and binding appellate 

precedent “[a]t the time of Lofton’s trial” held that a search warrant was not 

required to obtain CSLI); id. at 699, 701 (concluding that the detective’s 

reliance on the SCA and binding appellate precedent “at the time” of his 

“communications with MetroPCS” authorized the disclosure of Lofton’s cell 

phone records); Swinson, 2021 WL 769457, at *4 (noting that binding appellate 

precedent “[a]t the time of the [trial court] order” denying Swinson’s motion to 

suppress held that a search warrant was not required to obtain CSLI); id. at 

*5 (determining that “law enforcement’s request for Swinson’s cell phone 

records and AT&T’s release of this documentation were based on ‘a good faith 

belief that [the] voluntary disclosure of the requested records was authorized 

under the SCA and binding appellate precedent at the time’” (quoting Lofton, 

854 SE2d at 699)); id. (concluding that the SCA and binding appellate 

precedent “‘at the time of [Swinson’s] trial’” authorized the investigative

conduct at issue (quoting Lofton, 854 SE2d at 702)); Gialenios, 2021 WL 

769417, at *6 (determining that “[a]t the time of the lieutenant’s request for 

Gialenios’ cell phone records,” no binding Georgia appellate precedent held 

that a search warrant was required to obtain CSLI). But Krull and Davis make 

clear that the pertinent time is when the officer engaged in the investigative

conduct at issue. See Krull, 480 U.S. at 356-357 & n.13 (holding that the 

exclusionary rule did not apply where a detective acted in good-faith reliance 

upon an apparently valid statute that was “in effect at the time of [the] search”

of Krull’s business); Davis, 564 U.S. at 235-236, 239-241 (explaining that “[a]t 

the time of the search” of Davis’s car, a police officer acted in good-faith reliance 

on binding appellate precedent that was overruled while Davis’s appeal was 

pending, two years after the search). To the extent that language in Lofton, 

Swinson, and Gialenios suggests that the law in effect at some other time is 

pertinent in determining whether a law enforcement officer’s investigative

conduct was authorized under the exceptions to the exclusionary rule set forth 

in Krull and Davis, that language is disapproved.
14

his meeting in jail with his girlfriend Lakisha Fort. Asserting that

Fort was acting as an agent of the State at the time of the meeting,

Appellant claims that he should have been given the warnings 

required by Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 

694) (1966), before he spoke with her and that the admission of his 

subsequent statements to her violated his right against compulsory 

self-incrimination under the Fifth Amendment to the United States 

Constitution. Assuming (without deciding) that Fort acted as a State 

agent when she met with Appellant, Miranda warnings were not 

required and there was no Fifth Amendment violation, so this claim 

fails.

(a) During the hearing on the motion to suppress, the lead 

detective for Appellant’s case testified as follows. On April 10, 2014, 

more than a week after Appellant was arrested on charges unrelated 

to Rabotte’s murder, the detective interviewed Fort, who was 

incarcerated at the Gwinnett County Jail but participating in the 

work release program. Fort said that she was angry with Appellant, 

that she wanted to cooperate, and that Appellant had told her 
15

during phone calls from jail that he wanted to explain what 

happened but could not do so on the phone. She discussed meeting 

with Appellant in person, and the detective contacted someone at 

the Gwinnett County Sheriff’s Department to arrange the meeting. 

On April 24, the detective provided Fort with a small audiorecording device, which she hid in her clothing and used to record 

the approximately hour-and-fifteen-minute meeting with Appellant 

in a visitation room at the jail. Afterwards, the detective took the 

recording device, listened to the recording, and interviewed Fort

about the meeting. The detective testified that he did not promise 

Fort anything in exchange for her meeting with Appellant.

An investigator who worked at the jail testified during the 

hearing and at trial that it is an inmate’s responsibility to arrange 

for a visitor; that the inmate must put the visitor’s name on a 

visitation list; that at the time of the scheduled visit, the inmate 

usually walks to a visitation room and can come and go from the 

room; and that an inmate is not required to attend a scheduled visit. 

The trial court ultimately denied the motion to suppress summarily. 
16

Fort testified at trial that she had not been threatened or promised 

anything in exchange for her meeting with Appellant, but she 

acknowledged on cross-examination that the detective had 

implicated her brother in Rabotte’s murder, although she thought 

that the detective was “bluffing.”

(b) Partly as a matter of safeguarding the Fifth Amendment 

right against compelled self-incrimination, Miranda warnings must 

be administered to a suspect who is subjected to “custodial 

interrogation.” Miranda, 384 U.S. at 444.

It is the premise of Miranda that the danger of coercion 

results from the interaction of custody and official 

interrogation. . . . Questioning by captors, who appear to 

control the suspect’s fate, may create mutually 

reinforcing pressures that the [United States Supreme] 

Court has assumed will weaken the suspect’s will, but 

where a suspect does not know that he is conversing with 

a government agent, these pressures do not exist.

Illinois v. Perkins, 496 U.S. 292, 297 (110 SCt 2394, 110 LE2d 243) 

(1990). Thus, “[c]onversations between suspects and undercover 

agents do not implicate the concerns underlying Miranda.” Perkins, 

496 U.S. at 296. See also id. at 300 (holding that “an undercover law 

enforcement officer posing as a fellow inmate need not give Miranda
17

warnings to an incarcerated suspect before asking questions that 

may elicit an incriminating response”).

In this case, Appellant had no reason to believe that Fort was 

acting as a State agent during their meeting (even assuming that 

she was). The audio-recording of the meeting gives no indication 

that Appellant felt intimidated or coerced by Fort, that he believed 

she had any legal authority to force him to answer questions, or that 

he thought she could affect his legal situation. See id. at 296-297

(explaining that “[c]oercion is determined from the perspective of the 

suspect” and “[p]loys to mislead a suspect or lull him into a false 

sense of security that do not rise to the level of compulsion or 

coercion to speak are not within Miranda’s concerns”). See also 

Gebhardt v. State, 307 Ga. 587, 595 n.8 (837 SE2d 318) (2019)

(relying on Perkins to reject the defendant’s claim that he should 

have been given Miranda warnings before he made incriminating 

statements to his cellmate, who recorded the statements with a 

device that the police had provided him).

Moreover, even if Appellant had been aware that Fort was 
18

acting as a State agent (as we are assuming she was), he was not in 

custody for Miranda purposes at the time of their meeting. 

“[I]mprisonment alone is not enough to create a custodial situation 

within the meaning of Miranda.” Howes v. Fields, 565 U.S. 499, 511 

(132 SCt 1181, 182 LE2d 17) (2012). Rather, in determining whether 

a person is in custody, “the initial step is to ascertain whether, in 

light of the objective circumstances of the interrogation, a 

reasonable person would have felt he or she was not at liberty to 

terminate the interrogation and leave.” Id. at 509 (citations and 

punctuation omitted).

The testimony at the pretrial hearing and at trial indicated

that Appellant had requested that Fort visit him while he was in 

jail, and the investigator from the jail testified that inmates are 

responsible for arranging and attending visits and that they may

come and go from the visitation room. The trial court was entitled to 

credit that testimony. Moreover, the audio-recording of the meeting 

shows that Appellant voluntarily spoke with Fort, and during their

approximately hour-and-fifteen-minute visit, Appellant never
19

indicated that he wanted to stop the meeting or that he believed that 

he was not free to leave the visitation room. 

Given the totality of the circumstances, a reasonable person in 

Appellant’s situation would have felt free to end the meeting with 

Fort and leave. See id. at 510-517 (holding that the defendant, who 

was serving a sentence in jail, was not in custody for Miranda 

purposes when he was escorted to a conference room at the jail and 

interviewed by sheriff’s deputies for five to seven hours about an 

allegation of criminal conduct that occurred before he was 

imprisoned, because he was told that he was free to return to his cell 

whenever he wanted, he was not physically restrained or 

threatened, he was offered food and water, and the door to the room 

was sometimes left open); United States v. Higgins-Vogt, 911 F3d 

814, 820-821 (7th Cir. 2018) (concluding that the defendant, who 

had been arrested on robbery charges, was not in custody for 

Miranda purposes when he confessed committing a murder to a 

worker at the jail who held herself out as a counselor, because the 

defendant initiated the meeting with the counselor and was free to 
20

end his discussions with her at any time). Compare Mays v. State, 

336 Ga. App. 398, 402-404 (785 SE2d 408) (2016) (holding that the 

defendant was in custody under Miranda where a GBI agent 

questioned her in jail a week after she had been arrested for 

violating the terms of her probation, including by failing to complete 

community service, which was the main focus of the agent’s 

questions; the defendant was scheduled to appear in court for a 

probation revocation hearing less than a week after the interview; 

the agent did not tell the defendant she was free to leave until about

15 minutes into the 23-minute interview; and it was not clear 

whether the defendant was restrained during the interview). For 

these reasons, the State was not required to administer Miranda 

warnings to Appellant before he met with Fort.

We also reject Appellant’s claim that the admission of his 

statements to Fort violated his Fifth Amendment right against 

compelled self-incrimination. Based on the totality of the 

circumstances, the trial court did not err by concluding (implicitly) 

that his statements to Fort were voluntary and not the product of 
21

coercion. See Perkins, 496 U.S. at 298-300 (holding that “[t]he tactic 

[of placing an undercover agent in the defendant’s cellblock] 

employed [in that case] to elicit a voluntary confession from a 

suspect does not violate the Self-Incrimination Clause” and noting 

that “[t]he use of undercover agents is a recognized law enforcement 

technique, often employed in the prison context”); Hoffa v. United 

States, 385 U.S. 293, 295-299, 303-304 (87 SCt 408, 17 LE2d 374)

(1966) (holding that the admission of testimony about the 

defendant’s incriminating statements to a friend, who unbeknown 

to the defendant was acting as a government agent, did not violate 

the Fifth Amendment because the statements were not the product 

of any sort of coercion). See also United States v. Washington, 431 

U.S. 181, 187 (97 SCt 1814, 52 LE2d 238) (1977) (“[F]ar from being 

prohibited by the Constitution, admissions of guilt by wrongdoers, if 

not coerced, are inherently desirable.”).6

 6 The parties do not contend (and there is no evidence in the record 

indicating) that Appellant had invoked his Fifth Amendment right to counsel 

or right to silence before the meeting with Fort. See Perkins, 496 U.S. at 300 

n.* (Brennan, J., concurring) (asserting that if the defendant had previously 
22

4. Finally, Appellant contends that his trial counsel provided 

ineffective assistance by failing to request a jury instruction on the 

lesser offense of voluntary manslaughter. See OCGA § 16-5-2 (a) 

(stating in pertinent part that voluntary manslaughter is the killing 

of another person under circumstances that would otherwise be 

murder when the killer “acts solely as the result of a sudden, violent, 

and irresistible passion resulting from serious provocation sufficient 

to excite such passion in a reasonable person”). To prevail on this 

 

invoked those rights, the inquiry would focus on whether he then waived them 

before he spoke with the undercover agent).

We also note that cases involving alleged violations of the Sixth 

Amendment right to counsel where the government used an undercover agent 

to question a defendant, see, e.g., Rai v. State, 297 Ga. 472, 478-479 (775 SE2d 

129) (2015), do not apply to the analysis of Appellant’s Miranda and Fifth 

Amendment claims (although both parties’ briefs incorrectly rely on such 

cases). Appellant’s Sixth Amendment right to counsel had not yet attached 

when he met with Fort, because at the time of the April 24 meeting, Appellant 

was in jail on charges of cocaine possession and violating the terms of his 

probation; he was not charged with crimes related to Rabotte’s murder until 

nearly three months later, in July 2014. See Perkins, 496 U.S. at 299

(explaining that cases holding that the government may not use an undercover 

agent to circumvent the Sixth Amendment right to counsel did not apply

because that right attaches only after charges have been filed and the 

defendant had not been charged with any crimes related to the murder when 

he made the statements to the undercover agent). See also Texas v. Cobb, 532 

U.S. 162, 167 (121 SCt 1335, 149 LE2d 321) (2001) (explaining that the Sixth 

Amendment right to counsel is “offense specific” and “does not attach until a 

prosecution is commenced, that is, at or after the initiation of adversary 

judicial criminal proceedings” (citation and punctuation omitted)). 
23

claim, Appellant must show both that his counsel’s performance was 

professionally deficient and that he suffered prejudice as a result. 

See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 

LE2d 674) (1984). We need not review both parts of this test if 

Appellant fails to prove one of them. See id. at 697.

Even assuming (dubiously) that the evidence presented at trial 

would have authorized a jury instruction on voluntary 

manslaughter, trial counsel’s decision not to request the instruction

was not so unreasonable that no competent attorney would have 

made it under the circumstances. “Decisions about which defenses 

to present and which jury charges to request are classic matters of 

trial strategy, and pursuit of an all-or-nothing defense is generally 

a permissible strategy.” Velasco v. State, 306 Ga. 888, 893 (834 SE2d 

21) (2019). At the hearing on Appellant’s motion for new trial, his 

trial counsel testified that Appellant had consistently maintained 

that he did not know who killed Rabotte; that counsel and Appellant 

decided to assert that defense theory at trial; that counsel did not 

request a voluntary manslaughter instruction because choosing one 
24

defense theory provided “the best chance of winning this case”; and 

that if he had chosen to also present the contradictory theory that 

Appellant killed Rabotte in the heat of passion, the prosecutor 

“would have jumped on it.”

“It was not patently unreasonable for trial counsel, rather than 

risk losing credibility, to make the strategic decision not to seek a 

voluntary manslaughter charge” and to instead pursue only a 

defense that was consistent with Appellant’s claim that someone 

else killed Rabotte. Blackwell v. State, 302 Ga. 820, 826 (809 SE2d 

727) (2018). Thus, Appellant has not proved that his trial counsel 

performed deficiently in this regard, and his claim of ineffective 

assistance fails. See Floyd v. State, 307 Ga. 789, 801 (837 SE2d 790)

(2020) (concluding that trial counsel did not perform deficiently by 

failing to request a voluntary manslaughter instruction, because a

claim of voluntary manslaughter would have contradicted the 

defendant’s defense that he was not involved in the victim’s murder); 

Velasco, 306 Ga. at 893-894 (holding that trial counsel, who pursued 

an all-or-nothing justification defense, was not deficient for failing 
25

to request a voluntary manslaughter charge, because the defendant 

consistently maintained that he acted in self-defense).

Judgment affirmed. All the Justices concur.