In the Supreme Court of Georgia

Decided: January 18, 2023

S22A0950. CLARK v. THE STATE.

 WARREN, Justice.

William Clark was convicted of felony murder and other crimes 

in connection with the shooting death of Anthony King and the 

aggravated assault of Anthony Davis.1 In this appeal, Clark 

 1 The crimes occurred on August 3, 2012. In October 2012, a Richmond 

County grand jury indicted Clark and Jeremiah Kelly for malice murder, 

felony murder (based on the aggravated assault of King), two counts of 

aggravated assault (one against Davis and the other against his brother, 

Travis Davis), and three counts of possession of a firearm during the 

commission of a crime (based on the murder of King, the aggravated assault of 

Davis, and the aggravated assault of Travis). Clark alone was tried from 

October 11 to 14, 2016; the jury found him not guilty of malice murder and the 

aggravated assault and firearm offense against Travis, but guilty of the 

remaining crimes. The trial court sentenced him to serve life in prison without 

the possibility of parole for felony murder, 20 consecutive years for the 

aggravated assault against Davis, and five consecutive years each for the two 

counts of possession of a firearm during the commission of a crime. Kelly, who 

was tried in March 2015, was found not guilty of malice murder but guilty of 

the remaining counts against him; we address his appeal today in a separate 

opinion. See Kelly v. State, ___ Ga. ___ (Case No. S22A0979, Jan. 18, 2023). 

Clark filed a timely motion for new trial, which he amended twice through new

counsel. After hearings in November 2021 and February 2022, the trial court 
2

contends that the evidence presented at his trial was legally 

insufficient to support his convictions for the crimes against King;

the trial court applied the wrong standard in admitting evidence of 

an audio recording of his interview with the lead investigator for his 

case; the trial court committed plain error by failing to instruct the 

jury on knowledge, grave suspicion, mere presence, and mere 

association; and his trial counsel provided constitutionally 

ineffective assistance by failing to request those instructions and by 

failing to file a demurrer to the indictment. Each of these claims is 

meritless, so we affirm.

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

following.2 On the evening of August 3, 2012, King, Davis, and 

Davis’s brother, Travis Davis (“Travis”), hung out and drank alcohol. 

 

denied the motion in March 2022 but modified Clark’s sentence for felony 

murder to life with the possibility of parole. Clark then filed a timely notice of 

appeal, and his case was docketed to the August 2022 term of this Court and 

submitted for a decision on the briefs.

2 “Because this case requires an assessment of the harmful or prejudicial 

effect of certain alleged trial court errors and deficiencies of trial counsel, we 

lay out the evidence in detail and not only in the light most favorable to the 

verdicts.” Rawls v. State, 310 Ga. 209, 210 n.2 (850 SE2d 90) (2020). 
3

Around 11:00 p.m., Travis drove them to a convenience store in 

Augusta to buy beer. Travis stayed in his SUV while King and Davis 

walked toward the store. 

According to Davis, he and King recognized two young men, 

whom he identified at trial as Clark and Jeremiah Kelly, outside the 

store.3 Davis told King that he believed that Clark and Kelly had 

fired shots at him about two weeks earlier. King stopped to talk to 

them while Davis went inside the store. A surveillance video 

recording from the convenience store showed King, Clark, and Kelly 

calmly talking in front of the store at 11:00 p.m. A few minutes later, 

King went inside the store and Clark and Kelly walked out of view 

of the cameras. Davis testified that King then said something like 

“them little f**kers outside.” King and Davis purchased some beer 

and left the store. 

Travis dropped off King and Davis on a nearby street so they 

could walk to a friend’s house. Davis testified as follows. As he and 

King walked through a parking lot, they saw Clark and Kelly again. 

 3 Clark was then 16 years old, and Kelly was 15 years old.
4

King said something to them; the four men started arguing; and 

Clark and Kelly pulled out guns. King and Davis were not carrying

guns. An Oldsmobile pulled up, and two men, who were later 

identified as Curtis Washington and Treyvon Archie, told Clark and 

Kelly to put their guns away. Moments later, Travis pulled up in 

his SUV and tried to “defuse the situation.” Clark then fired his gun 

into the air; Kelly started shooting; and Clark shot toward Davis. 

King got in the SUV and began to drive away as Davis and Travis 

ran, and Kelly told Clark to “chase after them.” Davis fled to a 

nearby restaurant, where he called 911. 

Travis recounted a similar story. According to Travis, 

moments after he dropped off King and Davis, he had “a bad feeling,” 

so he drove back toward them. Two men, whom he identified at trial 

as Clark and Kelly, were pointing guns at King and Davis. Travis 

was not carrying a gun. An Oldsmobile was parked in the middle of 

the street, but the men in it did not appear to be involved in the 

argument. Travis got out of his SUV and told Clark and Kelly to put 

their guns down. Clark then fired his gun, and Kelly started 
5

shooting. Davis ran away, and Kelly told Clark, “we’ve got one 

trying to get away, get him.” Clark chased Davis, firing two more 

shots, as Kelly walked toward the SUV and said “uh-huh, pow.” 

Travis ran, but soon saw King driving the SUV and jumped in the 

passenger seat. Travis then saw that King had been shot. The SUV 

crashed into a tree, and Travis got out and ran away.4 

Investigators who responded to the scene found King, who had 

been shot once in the chest, in the driver’s seat of the SUV. He was 

transported to a hospital, where he later died. A medical examiner 

recovered a bullet fragment from King’s chest, and investigators 

found three .380 shell casings at the scene. A firearms examiner 

later concluded that all of the shell casings had been fired from the 

same .380 pistol and that the bullet fragment was fired from a .380

 4 A surveillance video recording from the parking lot where the shooting 

occurred, the quality of which the prosecutor described as “poor,” was admitted 

into evidence. Davis and the lead investigator for the case testified that the 

video showed the following. King and Davis walked through the parking lot 

around 11:20 p.m.; an Oldsmobile pulled up, followed by an SUV; Davis and 

Travis ran away as a man, whom Davis identified at trial as Clark, chased 

them; and Travis got in the passenger side of the SUV, which drove through 

the parking lot and out of view.
6

pistol. Investigators did not find any guns at the scene.

Investigators identified Clark and Kelly as suspects, and Clark 

and Kelly turned themselves in the day after the shooting. The lead 

investigator interviewed Clark that evening; the interview was 

audio-recorded and later played for the jury. Initially, Clark denied 

being present during the shooting, but he eventually told the 

following story. He and Kelly were outside the convenience store 

when two men approached and asked if they had been involved in a 

prior shooting. When they denied any involvement, the men left, 

but Clark and Kelly soon encountered them again in a nearby 

parking lot. The men “kept walking up on them” and again asked if 

they had been involved in the shooting. Clark said “no.” Clark’s 

friend Washington then pulled up in an Oldsmobile and asked what 

was happening. Clark responded that he did not know. An SUV 

then drove up, and “a big dude jumped out.” Kelly fired his gun as 

Clark fled.5 

 5 Washington and Archie did not testify. The lead investigator testified 

that Washington said during an interview that he did not see Clark with a gun 
7

The lead investigator testified that his investigation indicated 

that Kelly fired the shot that killed King, and it appears that the 

State’s theory of the case was that Kelly was the shooter and Clark 

was a party to the crimes. Clark did not testify, and the trial’s 

opening statements and closing arguments were not transcribed. 

2. Clark contends that the evidence presented at his trial was

insufficient as a matter of constitutional due process to support his 

convictions for felony murder (based on aggravated assault against 

King) and possession of a firearm during the commission of that 

crime.6 Specifically, Clark argues that the State failed to prove that 

he participated in killing King because the evidence showed that 

 

that night and that Kelly shot at King, Davis, and Travis. The investigator 

also testified that Archie said during an interview that both Clark and Kelly 

had guns that night. Clark did not object to this testimony at trial, and he does 

not contend in this appeal that the testimony was improperly admitted. 

6 Clark does not challenge the sufficiency of the evidence supporting his 

convictions for aggravated assault against Davis or possession of a firearm 

during the commission of that crime, and this Court no longer routinely 

reviews evidentiary sufficiency sua sponte, except with respect to murder 

convictions resulting in the death penalty. See Davenport v. State, 309 Ga. 385 

398-399 (846 SE2d 83) (2020).
8

Kelly was the shooter. We reject that argument.7

In evaluating the sufficiency of the evidence as a matter of 

constitutional due process, we view all of the evidence presented at 

trial in the light most favorable to the verdicts and consider whether 

any rational juror could have found the defendant guilty beyond a 

reasonable doubt of the crimes of which he was convicted. See 

Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)

(1979); Perkins v. State, 313 Ga. 885, 891 (873 SE2d 185) (2022). 

“We leave to the jury ‘the resolution of conflicts or inconsistencies in 

the evidence, credibility of witnesses, and reasonable inferences to 

be derived from the facts.’” Perkins, 313 Ga. at 891 (citation 

 7 In arguing about the sufficiency of the evidence, Clark asserts that the 

State was required to charge him with aggravated assault against King 

because his felony-murder conviction was based on that crime. That claim, 

however, relates to the sufficiency of the substance of the indictment—not the 

sufficiency of the evidence presented at trial. Because Clark did not challenge 

the substance of the indictment in the trial court, he has forfeited this claim. 

See Hinkson v. State, 310 Ga. 388, 397 (850 SE2d 41) (2020) (explaining that 

“‘a general demurrer may be raised after jeopardy has attached and at any 

time during trial,’ as well as ‘in the form of a motion in arrest of judgment after 

a verdict in the same term of court’”) (citation omitted). Clark also raises this 

issue in the context of a claim that his trial counsel provided constitutionally 

ineffective assistance by failing to file a demurrer to the indictment (an 

argument he also made in his amended and second amended motion for new 

trial). We address that claim in Division 5 (b).
9

omitted).

To support Clark’s conviction for felony murder, the evidence 

presented at trial had to show that he proximately caused King’s 

death, either directly or as a party to the crime, while in the 

commission of an aggravated assault with a deadly weapon. See 

OCGA § 16-5-1 (c). See also Mathews v. State, 314 Ga. 360, 365 (877 

SE2d 188) (2022) (“‘Felony murder requires only that the defendant 

possessed the requisite criminal intent to commit the underlying 

felony—in this case, aggravated assault, which also does not require

intent to kill.’”) (citation omitted). The trial court instructed the jury 

on aggravated assault, which OCGA § 16-5-21 (a) (2) defines, in 

pertinent part, as an “assault[] . . . [w]ith a deadly weapon.” The 

court also instructed on parties to a crime under OCGA § 16-2-20. 

That statute says, among other things, that “[e]very person 

concerned in the commission of a crime[,]” including one who 

“[i]ntentionally aids or abets in the commission of the crime” or 

“[i]ntentionally advises [or] encourages . . . another to commit the 

crime” is “a party thereto and may be charged with and convicted of 
10

commission of the crime.” OCGA § 16-2-20 (a) & (b) (3)-(4). 

It is well established that “‘[a] person who does not directly 

commit a crime may be convicted upon proof that the crime was 

committed and that person was a party to it.’” Glenn v. State, 306 

Ga. 550, 553 (832 SE2d 433) (2019) (citation omitted). See also 

Crawford v. State, 312 Ga. 452, 455-456 (863 SE2d 75) (2021) (“‘Even 

where it is undisputed that the victim was shot by another person, 

every person concerned in the commission of the crime may be 

convicted of the crime.’”) (citation omitted). Conviction as a party to 

a crime requires proof of a common criminal intent, which the jury 

may infer from the defendant’s presence, companionship, and 

conduct with another perpetrator before, during, and after the 

crimes. See, e.g., Glenn, 306 Ga. at 553. However, mere presence 

at the crime scene is insufficient to make someone a party to a crime. 

See, e.g., id. 

Although the evidence presented at trial indicated, and the 

parties did not dispute, that Clark did not personally fire the shot 

that killed King, there was ample evidence from which the jury 
11

reasonably could infer that Clark and Kelly shared a common 

criminal intent with respect to the shooting. When properly viewed 

in the light most favorable to the verdicts, the evidence showed that 

Clark and Kelly encountered King and Davis outside the 

convenience store shortly before the shooting—a fact supported by 

surveillance video. A few minutes later, when Clark and Kelly saw 

King and Davis again, the men argued. Clark and Kelly each pulled 

out a gun; Clark fired first; and Kelly then began shooting. Kelly

approached the SUV, and at some point, King was shot and killed. 

In addition, Kelly told Clark to chase Davis, and Clark followed that 

instruction, firing more shots as he ran after him. Clark then lied 

during his interview with the lead investigator, claiming that he had 

not been present during the shooting.

Thus, even if Clark did not himself shoot King, the evidence 

presented at trial was still sufficient as a matter of constitutional 

due process to authorize a rational jury to find him guilty beyond a 

reasonable doubt as a party to the crimes of felony murder based on 

aggravated assault and possession of a firearm during that offense. 
12

See, e.g., Mathews, 314 Ga. at 365 (holding that the jury was 

authorized to conclude that the appellant was guilty of felony 

murder based on aggravated assault, even though the evidence 

presented at trial did not establish whether he or his co-defendant 

shot the murder victim, because they shared a common criminal 

intent); Williams v. State, 307 Ga. 689, 691 (838 SE2d 314) (2020) 

(holding that the evidence presented at trial was legally sufficient to 

prove that the appellant, who did not shoot the victim, was guilty as 

a party to the murder, partly because he and some of the other 

assailants were in a car together, argued with the victim, and pulled 

out guns just before the shooting).8

3. Clark contends that the trial court applied the “wrong 

standard” in admitting into evidence the audio recording of his

interview with the lead investigator. He argues that because he was 

 8 To the extent Clark also challenges his felony-murder and firearm 

convictions under OCGA § 24-14-6, even if we assume that the evidence 

presented at trial was entirely circumstantial, it was nonetheless sufficient to 

exclude every reasonable hypothesis other than that of his guilt. See id. (“To 

warrant a conviction on circumstantial evidence, the proved facts shall not only 

be consistent with the hypothesis of guilt, but shall exclude every other 

reasonable hypothesis save that of the guilt of the accused.”).
13

a juvenile at the time of his interview, see OCGA § 15-11-2 (10) (B)

(defining “[c]hild”), the trial court was required to consider each of 

the nine factors set forth in Riley v. State, 237 Ga. 124 (226 SE2d 

922) (1976), to determine whether he knowingly and voluntarily 

waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (86 

SCt 1602, 16 LE2d 694) (1966). 

As we will explain more below, we take this opportunity to 

clarify that Riley held that trial courts are to use a totality-of-thecircumstances test to determine whether a juvenile knowingly and 

voluntarily waived his constitutional rights, and we reaffirm that 

holding today.9 However, requiring courts to apply the specific ninefactor framework Riley set forth for assessing the totality of the

circumstances is in tension with the totality-of-the-circumstances 

test itself, and we therefore disapprove language in Riley and later 

 9 We note that we have also applied Riley’s totality-of-the-circumstances 

test in evaluating whether a juvenile’s statement to law enforcement officials 

was voluntarily made as a matter of due process. See, e.g., State v. Powell, 315 

Ga. 5, 12 (880 SE2d 189) (2022); Lester v. State, 310 Ga. 81, 85 n.7 (849 SE2d 

425) (2020). Clark does not claim a due-process violation here.
14

cases suggesting that the nine-factor framework is required or 

exclusive.10 Finally, because the record in this case does not indicate 

that the trial court failed to apply a totality-of-the-circumstances 

test, Clark’s claim fails.

(a) We begin with a discussion of Riley and other cases from 

the United States Supreme Court and this Court that have 

established the legal standard that a trial court must apply in 

determining whether a juvenile knowingly and voluntarily waived 

his rights under Miranda. 

It appears that Riley was one of the earliest cases in which this 

 10 Our concern about Riley is not new: several of us recently have 

expressed concerns about Riley’s nine-factor framework. See State v. Powell, 

315 Ga. 5, 12 n.5 (880 SE2d 189) (2022) (noting that “[a] number of us have 

recently expressed concerns about the prescriptive and restrictive nature of 

Riley’s nine-factor analysis for juveniles”); State v. Burton, 314 Ga. 637, 650 

(878 SE2d 515) (2022) (Pinson, J., concurring, joined by Boggs, C.J., and 

Warren, Bethel, and McMillian, JJ.) (expressing doubts about the “juvenilespecific,” nine-factor analysis in Riley); Daniels v. State, 313 Ga. 400, 418 (870 

SE2d 409) (2022) (Nahmias, C.J. concurring specially in part, joined by Boggs, 

P.J. and Warren, J.) (expressing “doubts about how a trial court is to make, 

and an appellate court is to review, a ruling based on a nine-factor, totality-ofthe-circumstances test”) (emphasis in original).
15

Court considered a waiver of rights by a juvenile.11 Riley argued 

that he did not knowingly and voluntarily waive his rights under 

Miranda because he was a juvenile and his parents were not present

when he was interviewed by the police. See Riley, 237 Ga. at 127. 

This Court declined to determine that such a waiver was

involuntary per se, holding instead that “the question of a voluntary 

and knowing waiver depends on the totality of the circumstances[,]

and the state has a heavy burden in showing that the juvenile did 

understand and waive his rights.” Id. at 128. Relying on a decision 

of the United States Court of Appeals for the Fifth Circuit that 

similarly declined to apply a per se rule excluding evidence of a 

juvenile’s incriminating statements to the police, the Riley Court

went on to say that 

age alone is not determinative of whether a person can 

 11 Three years before Riley was decided, this Court summarily held in 

Williams v. State, 231 Ga. 508 (202 SE2d 433) (1973), that the trial court did 

not err by admitting into evidence a juvenile’s statement to the police, noting 

that the statement was made in the presence of his mother and after he was 

advised of his rights under Miranda. See id. at 509. In addition, a few months 

before the decision in Riley, we similarly held (with little discussion) in 

Crawford v. State, 236 Ga. 491 (224 SE2d 365) (1976), that the trial court did 

not err by admitting evidence of a juvenile’s confession, noting that he had been 

given Miranda warnings and that his statement was voluntary. See id. at 492.
16

waive his rights. Instead, the question of waiver must be 

analyzed by a consideration of several factors. These are

“(1) age of the accused; (2) education of the accused; (3) 

knowledge of the accused as to both the substance of the 

charge . . . and the nature of his rights to consult with an 

attorney and remain silent; (4) whether the accused is 

held incommunicado or allowed to consult with relatives, 

friends or an attorney; (5) whether the accused was 

interrogated before or after formal charges had been filed; 

(6) methods used in interrogation; (7) length of 

interrogations; (8) whether vel non the accused refused to 

voluntarily give statements on prior occasions; and (9) 

whether the accused has repudiated an extra judicial 

statement at a later date.”

Id. at 128 (quoting West v. United States, 399 F2d 467, 469 (5th Cir. 

1968)).12 The Riley Court then disapproved a Georgia Court of 

Appeals case, Freeman v. Wilcox, to the extent it could be read as 

requiring an automatic exclusion of a juvenile’s statement to the 

police, and summarily concluded that Riley knowingly and 

voluntarily waived his rights, without expressly applying any of the 

nine factors it laid out before reaching its conclusion. See id. at 128 

 12 In West, the Fifth Circuit rejected the appellant’s contention that 

because he was a juvenile when he was interviewed by an investigator, he was 

“per se incapable of waiving” his rights under Miranda. 399 F2d at 468. 

Noting that “[f]actors considered by the courts in resolving this question 

include” the nine factors later listed in Riley, the court held that whether a 

juvenile knowingly and voluntarily waived his rights did not depend on “age 

alone,” but rather on “the totality of circumstances.” Id. at 469.
17

(disapproving Freeman v. Wilcox, 119 Ga. App. 325 (167 SE2d 163)

(1969)). 

Three years later, the United States Supreme Court in Fare v. 

Michael C., 442 U.S. 707 (99 SCt 2560, 61 LE2d 197) (1979), 

examined whether a juvenile had invoked his rights pursuant to 

Miranda by requesting to speak with his probation officer. See id. 

at 710-716. Concluding that the juvenile’s request was not a per se 

invocation of his rights, the Court explained that “the determination 

whether statements obtained during custodial interrogation are 

admissible against the accused is to be made upon an inquiry into 

the totality of the circumstances surrounding the interrogation, to 

ascertain whether the accused in fact knowingly and voluntarily 

decided to forgo his rights to remain silent and to have the 

assistance of counsel.” Id. at 724-725. “This totality-of-thecircumstances approach is adequate to determine whether there has 

been a waiver even where interrogation of juveniles is involved.” Id. 

at 725. The Court further explained, 

[w]e discern no persuasive reasons why any other 
18

approach is required where the question is whether a 

juvenile has waived his rights, as opposed to whether an 

adult has done so. The totality approach permits—

indeed, it mandates—inquiry into all the circumstances 

surrounding the interrogation. This includes evaluation 

of the juvenile’s age, experience, education, background, 

and intelligence, and into whether he has the capacity to 

understand the warnings given him, the nature of his 

Fifth Amendment rights, and the consequences of 

waiving those rights.

Id. at 725.

Thus, our holding in Riley—that a totality-of-thecircumstances test is used to determine whether a juvenile 

knowingly and voluntarily waived his constitutional rights—is 

consistent with the totality-of-the-circumstances approach for 

juvenile waiver that was later established in Fare. And in the 

decades following Riley and Fare, this Court has repeatedly held 

that trial courts are to apply a totality-of-the-circumstances test in 

evaluating the admissibility of a juvenile’s statement. See, e.g., 

Williams v. State, 238 Ga. 298, 302-303 (232 SE2d 535) (1977) 

(explaining that in Riley, “[w]e found that ‘the question of a 

voluntary and knowing waiver depends on the totality of the 

circumstances” and holding that “under the totality of the 
19

circumstances[,] . . . the trial court did not err in admitting [the 

juvenile defendant’s] confession”); Crawford v. State, 240 Ga. 321, 

323-324 (240 SE2d 824) (1977) (explaining that Riley “adopted a 

totality of the circumstances test” and holding that “[c]onsidering all 

the circumstances,” the State failed to prove “from the totality of the 

circumstances that the juvenile made a voluntary and knowing 

waiver” of her constitutional rights); Massey v. State, 243 Ga. 228, 

228-229 (253 SE2d 196) (1979) (“In Riley, this court adopted a 

totality of the circumstance test to be used in considering whether a 

juvenile waived his right to remain silent.”); Smith v. State, 263 Ga. 

363, 364 (434 SE2d 465) (1993) (noting that Riley established a 

“totality of the circumstances test” and holding that the juvenile 

knowingly and voluntarily waived his rights under Miranda,

“considering the totality of the circumstances”); McKoon v. State, 

266 Ga. 149, 150 (465 SE2d 272) (1996) (citing Riley for the 

proposition that “[t]he admissibility of statements by juveniles 

depends upon whether, under the totality of the circumstances, 

there was a knowing and intelligent waiver of constitutional rights” 
20

and holding that the trial court “properly determined that under the 

totality of the circumstances, McKoon freely, knowingly, and 

voluntarily waived his Miranda rights”); Berry v. State, 267 Ga. 605, 

610-611 (481 SE2d 203) (1997) (explaining that a juvenile’s waiver 

of rights is “considered under the totality of the circumstances” and 

holding that the “evidence in its entirety” and “in the context of the 

whole” supported the trial court’s determination that the juvenile 

knowingly and intelligently waived his constitutional rights); Nhek 

v. State, 271 Ga. 245, 246 (517 SE2d 521) (1999) (citing Riley for the 

proposition that juvenile “waiver is assessed under the totality of 

the circumstances” and holding that “the [trial] court did not err in 

finding that, considering the totality of the circumstances, Nhek 

knowingly and voluntarily waived his rights”); Brooks v. State, 271 

Ga. 875, 876 (525 SE2d 696) (2000) (explaining that Riley stood for 

the proposition that the “question of knowing and intelligent waiver 

by [a] juvenile depends on [the] totality of the circumstances” and 

upholding the trial court’s determination that under the “totality of 

the circumstances,” the juvenile defendant knowingly waived his 
21

rights under Miranda); State v. Rodriguez, 274 Ga. 728, 728-729 

(559 SE2d 435) (2002) (explaining that whether a juvenile has made 

a knowing and intelligent waiver of his constitutional rights

“depends on the totality of the circumstances,” and concluding that 

under the totality of the circumstances particular to that case, the 

State had not met its burden of demonstrating that the juvenile 

knowingly, intelligently, and voluntarily waived his constitutional 

rights); Norris v. State, 282 Ga. 430, 431 (651 SE2d 40) (2007) (citing 

Riley and Fare for the proposition that “[e]ven where, as here, a 

juvenile is involved, the question of whether there was a knowing 

and intelligent waiver of constitutional rights depends on the 

totality of the circumstances surrounding a police interrogation” and 

holding that “[c]onsidering the totality of the circumstances,” the 

trial court did not err in concluding that the juvenile knowingly and 

voluntarily waived her rights); Green v. State, 282 Ga. 672, 673 (653 

SE2d 23) (2007) (explaining that “[t]his court, in Riley, held that ‘the 

question of a voluntary and knowing waiver [by a juvenile] depends 

on the totality of the circumstances’” and concluding that “[u]nder 
22

the totality of the circumstances, we agree with the trial court that 

there was a knowing and voluntary waiver of the right to remain 

silent”); Allen v. State, 283 Ga. 304, 305-306 (658 SE2d 580) (2008) 

(recognizing that Riley held that “[t]he admissibility of statements 

by juveniles depends upon whether, under the totality of the 

circumstances, there was a knowing and intelligent waiver of 

constitutional rights” and holding that under all of the 

circumstances, the two juvenile defendants knowingly and 

voluntarily waived their constitutional rights); State v. Lee, 298 Ga. 

388, 389 (782 SE2d 249) (2016) (citing Fare in explaining that a 

juvenile’s waiver of his rights under Miranda depends on the totality 

of the circumstances and holding that “the trial court properly 

concluded based on the totality of the circumstances that Lee did not 

knowingly and intelligently waive his rights before giving his 

custodial statement”); Love v. State, 309 Ga. 833, 836 (848 SE2d 882)

(2020) (explaining that a juvenile’s waiver of rights depends on the 

totality of the circumstances and holding that “under the totality of 

the circumstances” the trial court did not err in determining that 
23

the juvenile knowingly and voluntarily waived his rights).

Because the totality-of-the-circumstances test set forth in Riley

and its progeny is consistent with United States Supreme Court 

precedent, we reaffirm that test today.13 But, as discussed more 

below, language in Riley and many of the cases that followed it also 

suggested that assessing the totality of the circumstances required 

applying a specific nine-factor framework. Because requiring 

application of a fixed set of factors is inherently in tension with a 

totality-of-the-circumstances test, we disapprove any such

language.

(b) As we mentioned above, after we correctly held in Riley that 

whether a juvenile knowingly and voluntarily waives his 

 13 Indeed, if Riley’s holding were inconsistent with the totality-of-thecircumstances test that Fare later established, we would be obligated to 

overrule Riley, because we must follow the United States Supreme Court’s 

instructions on how to determine, as a matter of federal constitutional law, 

whether a juvenile has knowingly and voluntarily waived the rights protected 

by Miranda. See, e.g., Ringold v. State, 304 Ga. 875, 878 (823 SE2d 342) (2019) 

(explaining that “it is a fundamental principle that this Court is ‘bound by the 

Constitution of the United States as its provisions are construed and applied 

by the Supreme Court of the United States’” and that “‘[e]ven the venerable 

doctrine of stare decisis does not permit us to persist in an error of federal

constitutional law’”) (emphasis in original; citations omitted).
24

constitutional rights “depends on the totality of the 

circumstances[,]” the Court continued on by saying that “the 

question of waiver must be analyzed by a consideration of several 

factors. These are . . .” and listed nine specific factors.14 That 

language improperly suggested that in determining whether a 

juvenile knowingly and voluntarily waived his rights under 

Miranda, trial courts should examine the totality of the 

circumstances by mechanically applying those nine enumerated 

factors. But proper application of a totality-of-the-circumstances 

test “mandates . . . inquiry into all the circumstances surrounding 

the interrogation.” Fare, 442 U.S. at 725 (emphasis supplied). See 

also, e.g., United States v. Rivera, 825 F3d 59, 63-64 (1st Cir. 2016)

(explaining, in the context of determining whether there was 

sufficient probable cause to issue a search warrant under the Fourth 

Amendment, that “totality of the circumstances” “means that all 

 14 We note that although Riley’s factors were derived from West, that case 

said that “[f]actors considered by the courts in resolving [the] question [of 

juvenile waiver] include” before listing the nine factors later enumerated in 

Riley. See West, 399 F2d at 469 (emphasis supplied). In other words, the nine 

factors listed in West were not exclusive. 
25

material ‘circumstances should be considered’”) (citation omitted); 

United States v. Melton, 782 F3d 306, 311 (6th Cir. 2015) (noting, in 

the context of determining whether a criminal defendant’s 

admission during a revocation proceeding that he violated the 

conditions of his supervised release was knowing and voluntary, 

that “‘the totality of the circumstances means exactly that—all the 

circumstances should be considered,’” and “‘courts should beware of 

assigning talismanic significance to any single fact or circumstance’” 

as “‘each case is quite likely to be sui generis’”) (citation omitted). 

Indeed, any prescriptive or fixed list of factors by its very nature 

risks undermining a totality-of-the-circumstances test by suggesting 

that certain potentially relevant factors are not worthy of 

consideration, on one hand, and appearing to mandate consideration 

of other factors that may not be relevant in a particular case, on the 

other.

Thus, Riley’s list of nine specific factors, which this Court said
26

“must be analyzed” 15 in applying a totality-of-the-circumstances test

to determine whether a juvenile knowingly and voluntarily waived 

his rights, is in tension with the totality-of-the-circumstances test 

itself—and thus with this Court’s holding in Riley—because such a 

test requires that trial courts consider all of the relevant 

circumstances surrounding the juvenile’s interview with law 

enforcement officials. See Fare, 442 U.S. at 725. And given that in 

a number of cases decided after Riley, this Court perpetuated the 

dicta in Riley that set forth the nine-factor framework of analysis as 

part of a totality-of-the-circumstances inquiry and used language 

incorrectly suggesting that trial courts are required to analyze each 

of those factors or are required to analyze those factors exclusively, 

we disapprove any language in those cases indicating that the nine-

 15 As we mentioned above, the Riley Court announced in dicta its list of 

nine factors after holding that “the question of a voluntary and knowing waiver 

depends on the totality of the circumstances,” and the factors were not 

dispositive of the Court’s conclusion that the trial court correctly determined 

that Riley knowingly and voluntarily waived his rights under Miranda. See 

Riley, 237 Ga. at 128. 
27

factor framework is required or exclusive.16 Moreover, we make 

 16 See, e.g., Williams, 238 Ga. at 302-303 (explaining that Riley held that 

whether a juvenile knowing and voluntarily waived his constitutional rights 

depends on the totality of the circumstances (as noted above), but saying that 

“the totality of the circumstances is to be determined by consideration of the 

nine factors set out in West” and listing those factors); Crawford, 240 Ga. at 

323-325 (explaining and applying a totality-of-the-circumstances test (as noted 

above), and stating that “[t]he court in Riley . . . set forth several of the factors 

to be considered among the totality of the circumstances” before listing the 

Riley factors); Massey, 243 Ga. at 228-229 (applying a totality-of-thecircumstances test (as noted above), but briefly analyzing each of the Riley 

factors); Lane v. State, 247 Ga. 19, 20-21 (273 SE2d 397) (1981) (saying that a 

totality-of-the-circumstances test is used to determine juvenile waiver, but 

then stating that “[s]everal factors are considered by this court in applying the 

‘totality of the circumstances’ test to the statement of a minor. They are . . .” 

and listing the Riley factors); Marshall v. State, 248 Ga. 227, 228-230 (282 

SE2d 301) (1981) (noting that Riley held that “‘the question of a voluntary and 

knowing waiver depends on the totality of the circumstances,’ to be analyzed 

by a consideration of nine factors” and then listing and applying the Riley 

factors); Howe v. State, 250 Ga. 811, 812-813 (301 SE2d 280) (1983) (noting 

that “Riley . . . adopted a totality of the circumstances test,” but listing and 

applying the nine Riley factors and concluding that “[b]ased upon the totality 

of the circumstances, as reflected in the nine-factor analysis,” the trial court 

properly admitted the juvenile defendant’s statement); Couch v. State, 253 Ga. 

764, 765 (325 SE2d 366) (1985) (saying that “[t]he question of voluntary and 

knowing waiver of rights by a juvenile depends upon an analysis of nine 

factors,” but then concluding that the trial court properly admitted the 

juvenile’s statement “[c]onsidering all the circumstances”); J.E.W. v. State, 256 

Ga. 464, 467 (349 SE2d 713) (1986) (saying that in Riley, we held that the 

question of waiver “depends on the totality of the circumstances to be analyzed 

by a consideration of nine factors” and then listing the Riley factors) (citation 

and punctuation omitted); State v. McBride, 261 Ga. 60, 63 (401 SE2d 484) 

(1991) (mentioning that the trial court applied a totality-of-the-circumstances 

test to determine whether the juvenile defendants waived their rights under 

Miranda, but saying that “[i]n determining this issue nine factors are to be 

considered” and listing the Riley factors); Smith, 263 Ga. at 364 (citing Riley 

for the proposition that “[w]hether a juvenile has made a knowing and 
28

 

voluntary waiver of his rights depends on the totality of the circumstances” (as 

noted above), but then saying “with consideration given to nine specific factors” 

and listing the Riley factors in a footnote); Henry v. State, 264 Ga. 861, 862 

(452 SE2d 505) (1995) (holding that whether a juvenile defendant knowingly 

and voluntarily waived his rights depends on the “totality of the 

circumstances,” but saying that a trial court “must consider” the nine Riley 

factors); McKoon, 266 Ga. at 150 (explaining and applying a totality-of-thecircumstances test (as noted above), but saying that the “analysis involves the 

application of a nine part test” and listing the Riley factors); Berry, 267 Ga. at 

610-611 (applying a totality-of-the-circumstances test (as noted above), but 

saying that “[t]he analysis involves the application of the nine-part test 

outlined in Riley”); Gilliam v. State, 268 Ga. 690, 692 (492 SE2d 185) (1997) 

(explaining that whether a juvenile knowingly and intelligently waived his 

constitutional rights is “assessed under the totality of the circumstances,” but 

then “[a]pplying the nine-factor test” in Riley); Hanifa v. State, 269 Ga. 797, 

804-805 (505 SE2d 731) (1998) (saying that “[s]ince Hanifa was a juvenile when 

she made the incriminating statement to police, the trial court correctly 

considered the nine factors set forth in Riley . . . in determining whether Hanifa

made a knowing and intelligent waiver of constitutional rights,” without 

mentioning the totality-of-the-circumstances test); Nhek, 271 Ga. at 246 

(explaining that juvenile waiver is “assessed under the totality of the 

circumstances” (as noted above), but saying that the Court was “[a]pplying the 

nine-factor test of McBride and Riley”); Brooks, 271 Ga. at 876 (explaining and 

applying a totality-of-the-circumstances test (as noted above), but stating that 

McBride set “forth nine factors to be considered when a juvenile makes an 

incriminating statement”); Jackson v. State, 272 Ga. 191, 194 (528 SE2d 232) 

(2000) (noting that the trial court concluded that the juvenile knowingly and 

voluntarily waived his rights under the totality of the circumstances, but 

saying that “[t]he court specifically considered the factors set forth in Riley . . . ,

the test for considering the voluntariness of a juvenile’s statement”); Chapman 

v. State, 273 Ga. 865, 869 (548 SE2d 278) (2001) (concluding that the trial court 

“did not err in finding that, considering the totality of the circumstances, 

Chapman knowingly and voluntarily waived his rights,” but saying that a 

“court is to consider” the nine Riley factors and listing the factors); Rodriguez, 

274 Ga. at 728-729 (explaining and applying a totality-of-the-circumstances 

test (as noted above), and listing the Riley factors as those “[a]mong the factors 

to be considered”); James v. State, 275 Ga. 387, 388 (565 SE2d 802) (2002) 

(concluding that the juvenile defendant knowingly and intelligently waived her 

rights “[c]onsidering the totality of the circumstances,” but noting that the trial 
29

 

court “consider[ed] the nine factors set forth in Riley”); Murray v. State, 276 

Ga. 396, 397-398 (578 SE2d 853) (2003) (concluding that the juvenile 

defendant’s statement was knowingly and voluntarily given “[c]onsidering the 

totality of the circumstances,” but quoting the Riley factors); Norris, 282 Ga. 

at 431-432 (citing Fare and applying a totality-of-the-circumstances test (as 

noted above), but quoting the factors listed in Rodriguez as those “[a]mong the 

factors to be considered”); Green, 282 Ga. at 673-674 (applying a totality-of-thecircumstances test to conclude that the juvenile knowingly and voluntarily 

waived his right to remain silent (as noted above), but listing and applying the 

Riley factors); Allen, 283 Ga. at 305-306 (applying a totality-of-thecircumstances test to determine whether the juvenile defendants knowingly 

and voluntarily waived their constitutional rights (as noted above), but saying 

that “[t]he analysis involves the application of a nine part test” and listing the 

Riley factors); Oubre v. Woldemichael, 301 Ga. 299, 305-307 (800 SE2d 518) 

(2017) (applying Riley to determine whether a juvenile’s statement was 

voluntarily made as a matter of due process and explaining that Riley requires 

an evaluation of the totality of the circumstances, but saying that “[i]n 

determining whether a juvenile has given a statement voluntarily, a court 

considers nine factors set forth in Riley”); Lester v. State, 310 Ga. 81, 85-88 & 

n.7 (849 SE2d 425) (2020) (repeatedly explaining that juvenile waiver depends 

on the totality of the circumstances, but quoting the factors listed in Riley and 

noting that waiver under the Riley test differs from “a more general totalityof-the-circumstances due process analysis”); Bedford v. State, 311 Ga. 329, 334 

(857 SE2d 708) (2021) (saying that the State bears the burden of showing that 

a juvenile waived his rights under “‘the totality of the circumstances,” but that 

“the court must consider nine factors in making that determination” and listing 

the Riley factors); Daniels v. State, 313 Ga. 400, 406 (870 SE2d 409) (2022) 

(explaining that whether a juvenile defendant knowingly and voluntarily 

waived his rights depends on “the totality of the circumstances,” but that 

“courts are to consider nine factors in making that determination” and then 

listing and analyzing the factors set forth in Riley); State v. Burton, 314 Ga. 

637, 641-649 (878 SE2d 515) (2022) (explaining that whether a juvenile waived 

his rights under Miranda depends on “the totality of the circumstances,” but 

listing the Riley factors and reviewing the trial court’s findings as to each

factor); State v. Powell, 315 Ga. 5, 12-14 (880 SE2d 189) (2022) (applying Riley 

to determine whether a juvenile’s statement was voluntarily made as a matter 

of due process, noting that “in analyzing the totality of the circumstances, the 

trial court considered the many factors set forth in Riley,” listing the nine 

factors, and then reviewing each of them).
30

clear that Georgia trial courts should no longer look to that 

framework for determining, under the totality of the circumstances,

whether a juvenile knowingly and voluntarily waived his rights 

under Miranda. Rather, as we have explained above, the totalityof-the-circumstances test requires trial courts to consider all of the 

relevant circumstances surrounding a juvenile’s interview with law 

enforcement officials to determine whether the State has met its 

burden of showing that the juvenile knowingly and voluntarily 

waived his rights. See Fare, 442 U.S. at 725. 

 

In addition, we have said that the factors listed in Riley are inapplicable 

in cases involving whether an adult knowingly and voluntarily waived his 

constitutional rights. See Andrews v. State, 302 Ga. 809, 811 n.5 (809 SE2d 

746) (2018), overruled on other grounds by State v. Abbott, 303 Ga. 297 (812 

SE2d 225) (2018); Sewell v. State, 283 Ga. 558, 562 (662 SE2d 537) (2008); 

Vergara v. State, 283 Ga. 175, 177-178 (657 SE2d 863) (2008); Woodard v. 

State, 277 Ga. 49, 50 (586 SE2d 330) (2003); Reynolds v. State, 275 Ga. 548, 

549 (569 SE2d 847) (2002); King v. State, 273 Ga. 258, 260 (539 SE2d 783) 

(2000); Esposito v. State, 273 Ga. 183, 185 (538 SE2d 55) (2000); McDade v. 

State, 270 Ga. 654, 656 (513 SE2d 733) (1999); Hance v. State, 245 Ga. 856, 858 

(268 SE2d 339) (1980). To the extent that language in these or other Georgia 

appellate cases indicates that the test for whether a defendant has knowingly 

and voluntarily waived his rights under Miranda is not the same for juveniles 

as it is for adults, that language is disapproved. See Fare, 442 U.S. at 725 

(explaining that the totality-of-the-circumstances test is used for determining 

whether a juvenile has knowingly and voluntarily waived his constitutional 

rights, and that this same test is used for determining whether an adult has 

waived his rights).
31

(c) We turn now to whether the trial court in this case applied 

the proper standard—the totality-of-the-circumstances test—to 

determine whether Clark knowingly and voluntarily waived his 

rights under Miranda. As explained below, nothing in the record 

indicates that the court failed to apply the test, so Clark does not 

prevail on this claim. 

(i) Near the beginning of the trial, the trial court held a 

hearing pursuant to Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 

12 LE2d 908) (1964), to determine the admissibility of the audiorecording of Clark’s interview with the lead investigator. The 

evidence presented at the hearing, which included testimony from 

the investigator and the recording of the interview, showed the 

following. On the day after the shooting, the investigator spoke with 

Clark’s mother, who said that she did not know where Clark was; 

around 6:45 p.m., Clark and Kelly turned themselves in at the 

Richmond County Sheriff’s Office; and at 8:15 p.m., the investigator 

interviewed Clark for about an hour and 10 minutes. Clark, who 

was then 16 years old, attended high school and was in the tenth 
32

grade. He confirmed during the interview that he understood right 

from wrong; he understood English; and he did not have any “mental 

disorder” or take any drugs that would prevent him from 

understanding the investigator’s questions. The investigator 

informed Clark that he and Kelly were being charged with murder. 

He then read to Clark the language that was contained on a “Waiver 

of Counsel” form; Clark wrote his initials next to each of the six 

rights listed on the form and signed it.17

Clark initially denied any knowledge of the shooting, saying 

that he had not seen Kelly that night. During the course of the 

interview, Clark said that he had “been in trouble with the police” 

before, and he understood that giving a false statement to a police 

 17 The form advised Clark that he could “remain silent and [did] not have 

to make any statement at all”; “any statement which [he] might make” could 

“be used against [him] in court”; he had a “right to consult with an attorney 

before making any statements and to have such attorney present with [him] 

while [he was] making a statement”; if he did not have enough money to employ 

an attorney, he had “the right to have one appointed by the [c]ourt”; if he 

requested an attorney, “no questions [would] be asked until an attorney [was] 

present”; and he could decide “at any time to exercise these rights and not 

answer any questions or make any statements.” Just above the date and 

signature lines, the form said, “I have read this Waiver of Counsel and fully 

understand it. No threats or promises have been made to induce me to sign 

this Waiver of Counsel.” 
33

officer was against the law. At one point, Clark asked the 

investigator if he was going to be “locked up,” and the investigator 

replied, “You have to be locked up for what happened. I have 

warrants on you.” When the investigator said that telling the truth 

might “look[] good” if Clark “went to court,” Clark mumbled 

something about “30 years,” and the investigator said, “You don’t 

know that.” The investigator later asked if Clark knew the sentence 

for murder, and Clark replied, “Life.” 

About 35 minutes after the interview began, Clark said 

something like, “I [inaudible] talk to a lawyer.”18 The investigator 

asked, “Do what?” Clark again said something like, “I [inaudible]

talk to a lawyer.” The investigator said, “Are you saying you don’t 

want to talk no more and you want to talk to a lawyer? Is that what 

you’re saying?” Clark responded, “I’m saying I don’t understand 

why you all got me for something I didn’t do.” The investigator then 

said that he had surveillance recordings showing Clark and Kelly 

 18 Clark’s trial counsel argued at the hearing that Clark said, “I’ll talk to 

a lawyer.”
34

together on the night of the murder. Clark again denied any 

involvement, and asked about the evidence the investigator had. 

When the investigator asked Clark to “tell the truth,” he eventually 

admitted that he was present when Kelly fired at King and his 

companions, although he claimed that he fled when the shooting 

began.

The investigator testified at the hearing that during the 

interview, Clark did not appear to be intoxicated or suffering from 

any mental defects; he seemed to understand and coherently answer 

questions; no one had threatened him or promised him anything; 

and he did not ask to speak with his mother or any other family 

member. He also testified that the Richmond County Sheriff’s Office 

had a special form used to advise juveniles of their rights under 

Miranda, but he did not use that form for Clark. In addition, he 

testified that about an hour and a half after the interview ended, 

Clark said that he wanted to change his statement, saying that 

Archie was the shooter. About five minutes later, Clark repeated 

that Kelly was actually the shooter and that he had tried to change 
35

his statement because he was “scared” of Kelly.

At the hearing, the parties argued about whether the 

investigator should have used the juvenile waiver-of-rights form and 

should have advised Clark that a parent could be present during the 

interview. They also argued about whether Clark unequivocally 

invoked his right to counsel. In addition, the prosecutor asserted 

that Clark’s comments during the interview showed that he was 

“well versed in the criminal justice system.” 

The trial court ruled that the recording of the interview was 

admissible. It concluded that Clark had not clearly invoked his right 

to counsel, pointing out that when the investigator tried to clarify 

whether Clark wanted to talk to a lawyer, Clark replied, “I’m saying 

I don’t understand why you got me for something I didn’t do.”19 The 

court then stated that the investigator was not required to use a 

juvenile waiver-of-rights form and that Clark clearly “understood 

what was going on” and “understood the system.” The trial court 

ruled that the State had shown by a preponderance of the evidence 

 19 Clark does not raise this issue on appeal.
36

that Clark was advised of his rights under Miranda, understood 

them, and voluntarily waived them. 

 (ii) Nothing in the record suggests that the trial court failed 

to apply a totality-of-the-circumstances test. To the contrary, the 

record shows that the court reviewed the entire audio recording of 

the interview, which contained pertinent information regarding 

Clark’s age, intelligence, education, previous experience with the

criminal justice system, and understanding of his rights under 

Miranda. Moreover, during the hearing, the parties argued at 

length about whether a juvenile waiver-of-rights form should have 

been used, whether Clark should have been advised that a parent 

could be present during his interview, and whether Clark had 

clearly invoked his right to counsel when he mentioned “talk[ing] to 

a lawyer.” The prosecutor also asserted that the recording of the 

interview, including Clark’s comments about being “locked up” and 

potentially serving a sentence of “30 years” or “life” in prison for 

murder, showed that he was familiar with the criminal justice 

system. 
37

In ruling that the recording of the interview was admissible, 

the trial court expressly concluded that a juvenile waiver-of-rights 

form was not required, that Clark had not invoked his right to 

counsel, and that he understood “what was going on” and understood 

the criminal justice “system.” Although the court did not expressly 

acknowledge other factors that may have been pertinent in 

analyzing the totality of the circumstances, “we generally do not 

require trial courts to make specific, on-the-record findings about 

each aspect of the totality of the circumstances they evaluate or to 

make ‘explicit factual findings or credibility determinations on the 

record.’” Lester v. State, 310 Ga. 81, 86 (849 SE2d 425) (2020)

(citation omitted). 

In sum, we see no indication that the trial court failed to apply 

a totality-of-the-circumstances test in determining whether Clark 

knowingly and voluntarily waived his rights under Miranda. 

Clark’s claim therefore fails.20 See Holmes v. State, 311 Ga. 698, 706

 20 Because Clark contends only that the trial court applied the wrong 

legal test and does not contend that the court erred in concluding that he 
38

(859 SE2d 475) (2021) (“‘Trial judges . . . are presumed to know the 

law and apply it in making their decisions, absent some indication 

in the record suggesting otherwise.’”) (citation omitted). See also

Drennon v. State, 314 Ga. 854, 860 (880 SE2d 139) (2022) 

(explaining that when a trial court evaluates the general grounds as 

the “thirteenth juror,” we presume that the court understood the 

nature of its discretion and exercised it, unless the record shows 

otherwise, even if the court did not explicitly speak of its discretion 

with respect to the general grounds).

4. Clark also asserts that the trial court committed plain error 

by failing to instruct the jury on knowledge, grave suspicion, mere 

presence, and mere association. These instructions were necessary, 

Clark says, to inform the jurors that in order to find him guilty as a 

party to the crimes against King, the jury would be required to 

determine that he shared a common criminal intent with Kelly. As 

Clark acknowledges, his trial counsel did not object to the omission 

 

knowingly and voluntarily waived his constitutional rights under the proper 

test, we do not address that issue.
39

of these instructions, so we review this claim for plain error only. To 

establish plain error, Clark must show that the alleged instructional 

error “‘was not affirmatively waived; was clear and obvious, rather 

than subject to reasonable dispute; likely affected the outcome of the 

trial; and seriously affected the fairness, integrity, or public 

reputation of judicial proceedings.’” Collins v. State, 312 Ga. 727, 

738 (864 SE2d 85) (2021) (citation omitted). “‘An appellant must 

establish all four elements of the test in order to demonstrate plain 

error, so satisfying this test is difficult, as it should be.’” Id. (citation 

omitted). Because Clark has not met his burden of proving that the 

trial court clearly and obviously erred, or that any such error likely 

affected the outcome of his trial, he has failed to establish plain 

error.

In evaluating a claim that the trial court was required to give 

certain jury instructions, “‘we view the charge as a whole to 

determine whether the jury was fully and fairly instructed.’” Lopez 

v. State, 310 Ga. 529, 537 (852 SE2d 547) (2020) (citation omitted). 

During the final charge, the trial court read the indictment to the 
40

jury and provided instructions on the presumption of innocence and

the State’s burden to prove beyond a reasonable doubt each essential 

element of the charged crimes. The court also instructed on felony 

murder and aggravated assault, saying, among other things, that 

felony murder “require[s] that the defendant possess the requisite 

criminal intent to commit the underlying felony” and that 

aggravated assault requires “that the defendant intentionally 

committed an act which placed the alleged victim in reasonable fear 

of immediately receiving a violent injury.” The court told the jury 

that “[i]ntent is an essential element of any crime and must be 

proved by the State beyond a reasonable doubt” and that “[Clark] 

will not be presumed to have acted with criminal intent.” In 

addition, the trial court thoroughly and accurately instructed on 

parties to a crime, specifically telling the jury that a person may be 

convicted as a party to a crime if he intentionally aided or abetted in 

the commission of the crime or intentionally advised or encouraged 

another to commit the crime. Thus, the jury was fully informed that 

it was not authorized to find Clark guilty as a party to the crimes 
41

unless he shared Kelly’s criminal intent to shoot King. 

When evaluated in the context of the jury instructions as a 

whole, the trial court’s failure to expressly instruct on knowledge, 

grave suspicion, mere presence, and mere association did not create 

a clear and obvious error beyond reasonable dispute with respect to 

the jury’s understanding of criminal intent. See, e.g., Adkins v. 

State, 314 Ga. 477, 483 (877 SE2d 582) (2022) (holding that the trial 

court did not err by failing to instruct the jury on grave suspicion,

“because the concept was covered in other jury instructions”); 

Downey v. State, 298 Ga. 568, 574 (783 SE2d 622) (2016) (explaining

that trial counsel was not ineffective for failing to object to the 

omission of a jury instruction on knowledge, because the charge as 

a whole sufficiently informed the jury of the knowledge required for 

a defendant to be convicted as a party to the crimes); Simmons v. 

State, 282 Ga. 183, 188 (646 SE2d 55) (2007) (holding that the trial 

court did not err by failing to instruct the jury on mere presence and 

guilt by association, because “mere presence is only a corollary to 

the requirement that the State prove each element of the crime 
42

charged, and . . . the trial court’s instructions clearly informed the 

jury of this requirement”).

For the same reason, Clark has not established that there is a 

reasonable probability that the outcome of the trial would have been 

more favorable to him had the trial court given these instructions. 

See Downey, 298 Ga. at 574-575. See also, e.g., Walker v. State, 311 

Ga. 719, 724-725 (859 SE2d 25) (2021) (holding that an allegedly 

improper jury instruction did not likely affect the outcome of the 

appellant’s trial under the third part of the plain-error test, because 

the charge as a whole adequately instructed the jury as to how to 

determine his guilt); Cochran v. State, 305 Ga. 827, 832 (828 SE2d 

338) (2019) (holding that trial counsel’s withdrawal of a requested 

jury instruction on mere presence did not prejudice the appellant,

because other instructions sufficiently covered that point). 

Accordingly, Clark has not met his high burden of proving plain 

error.

5. Finally, Clark argues that his trial counsel provided 

constitutionally ineffective assistance by failing to request the jury 
43

instructions discussed above and by failing to file a demurrer to the 

indictment. To prevail on these claims, Clark must show that his 

lawyer’s performance was constitutionally 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). To prove deficient 

performance, Clark must demonstrate that his counsel “‘performed 

at trial in an objectively unreasonable way considering all the 

circumstances and in the light of prevailing professional norms.’” 

Lewis v. State, 314 Ga. 654, 668 (878 SE2d 467) (2022) (citation 

omitted). See also Strickland, 466 U.S. at 688-689. To establish 

prejudice, Clark must show a reasonable probability that, but for 

counsel’s deficient performance, the result of the trial would have 

been different. See Strickland, 466 U.S. at 694; Lewis, 878 SE2d at 

479. We need not address both components of the Strickland test if 

Clark makes an insufficient showing on one. See Strickland, 466 

U.S. at 697; Lewis, 878 SE2d at 479.

(a) Clark first claims that his trial counsel provided 

constitutionally ineffective assistance by failing to request jury 
44

instructions on knowledge, grave suspicion, mere presence, and 

mere association. As we explained in Division 4 above, the trial 

court’s omission of the instructions Clark now says should have been 

given was not an obvious or harmful error under plain-error review. 

Even if we assume that trial counsel performed deficiently by failing 

to request the instructions, Clark has not established that any such 

deficiency resulted in prejudice, given that “‘[t]he test for prejudice 

in the ineffective assistance analysis is equivalent to the test for 

harm in plain error review.’” Harris v. State, 310 Ga. 372, 385 (850 

SE2d 77) (2020) (citation omitted). This claim of ineffective 

assistance therefore fails.

(b) Clark also asserts that his trial counsel was 

constitutionally ineffective for failing to file a general demurrer to 

the felony-murder count in the indictment. Because counsel did not 

perform deficiently in this regard, Clark cannot succeed on this 

claim.

“‘A general demurrer challenges the sufficiency of the 

substance of the indictment,’ and asks whether it is capable of 
45

‘supporting a conviction.’” Budhani v. State, 306 Ga. 315, 319 (830 

SE2d 195) (2019) (citation omitted). An indictment is void to the 

extent it fails to allege all of the essential elements of the charged 

crime. See id. To that end, an indictment is subject to a general 

demurrer “‘if the accused could admit each and every fact alleged in 

the indictment and still be innocent of any crime.’” Id. (citation 

omitted). If, on the other hand, the admission of the facts alleged in 

the indictment leads to the conclusion that the defendant is guilty 

of the charged crime, the indictment is sufficient. See id. 

The indictment charged Clark with felony murder “while in the 

commission of the felony of [a]ggravated [a]ssault” by “caus[ing] the 

death of . . . King . . . by shooting him with an unknown type 

handgun, a deadly weapon[.]” This language substantially tracked 

OCGA § 16-5-1 (c), which defines felony murder as “caus[ing] the 

death of another human being irrespective of malice” while “in the 

commission of a felony.” And OCGA § 16-5-21 (b) provides that the 

crime of aggravated assault is a felony. Thus, the felony-murder 

count in the indictment was sufficient to withstand a general 
46

demurrer, “because [Clark] cannot admit he caused the death of the 

victim while in the commission of aggravated assault and not be 

guilty of the crime [of felony murder].” Stinson v. State, 279 Ga. 177, 

179 & n.2 (611 SE2d 52) (2005) (holding that an indictment charging 

the appellant with felony murder by causing the death of the victim 

“‘while in the commission of a felony, to wit: aggravated assault’” 

was not subject to a general demurrer). See also Smith v. State, 313 

Ga. 752, 758-759 (873 SE2d 142) (2022) (determining that an 

indictment charging the appellant with felony murder by causing 

the victim’s death “‘while in the commission of the offense of 

aggravated assault, a felony, and/or aggravated battery, a felony’” 

was sufficient to withstand a general demurrer).21

Clark nevertheless argues that the indictment was flawed 

because it did not charge him with a count of aggravated assault

against King. Such a charge was necessary, he says, because 

aggravated assault was the felony that formed the basis of the 

 21 Clark does not argue that the indictment failed to contain the essential 

elements of the underlying crime of aggravated assault.
47

felony-murder count. But it is well settled that “‘the crime of [felony] 

murder is independent of the underlying felony. . . . Therefore, the 

underlying felony need not be charged as a separate substantive 

offense[.]’” State v. Jones, 274 Ga. 287, 288 (553 SE2d 612) (2001) 

(citation omitted). See also Freeman v. State, 297 Ga. 146, 150 (771 

SE2d 889) (2015) (noting that OCGA § 16-5-1 (c) does “not require 

that the defendant be charged and convicted of the underlying 

felony. The jury must simply find that the defendant committed or 

attempted to commit it”) (citation and punctuation omitted), 

overruled on other grounds by Collier v. State, 307 Ga. 363 (834 

SE2d 769) (2019). Cf. Smith, 313 Ga. at 758-759 (determining that 

a one-count indictment charging the appellant with felony murder 

based on aggravated assault was sufficient to withstand a general 

demurrer); Stinson, 279 Ga. at 179 (same). Thus, the indictment 

was not defective in this respect.

Because a general demurrer to the indictment on the ground 

that it failed to charge Clark with aggravated assault would have 

been meritless, Clark has not shown that his trial counsel performed 
48

deficiently. See Smith, 313 Ga. at 759 (holding that trial counsel 

was not deficient for failing to file a general demurrer, because such 

a filing would have been meritless). Accordingly, he cannot prevail 

on this ineffective-assistance claim.

Judgment affirmed. All the Justices concur.