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.
2

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 
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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 
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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 
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‘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 

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 
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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, 
7

(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)).
8

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 

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 
9

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. 

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), 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 

4 At trial, Madera objected to the admission of this evidence only on 

Confrontation Clause grounds.
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up to him and said what’s up now, or what’s up [and] shot him 

again.” Pursuant to OCGA § 24-8-803 (5) (“Rule 803 (5)”),5 the State 

then moved to admit a 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 

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 

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[.]
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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 

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.” 302 Ga. 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 
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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 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) (B) (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. 
13

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 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) (853 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 
14

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 

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 
15

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] 

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 
16

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 

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 560-561 (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 
17

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 

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).

Judgment affirmed. All the Justices concur.