In the Supreme Court of Georgia

Decided: May 3, 2021

S2 1 A 0066

. KESSLER v. THE STATE

.

M ELTON , Chief Justice. Following a jury trial, Dana Michael Kessler was convicted of felony murder and related offenses in connection with the shooting death of Jeffrey Morgan, Jr

. 1 On appeal, Kessler raises three claims

1 On August 20, 2013, a Muscogee County grand jury jointly indicted Kessler and Timothy Robinson for four counts of felony murder predicated on aggravated assault, armed robbery, aggravated assault with intent to rob, an d violating the G eorgia C ontrolled S ubstances A ct (C ounts 1

– 4 ); one count of malice murder (C ount 5); two counts of aggravated assault ( C ounts 6

– 7); one count of violating the Georgia Controlled Substance s Act ( C ount 8); armed robbery ( C ount 9); hijacking a motor vehicle ( C ount 10); possession of a firearm during the commission of a crime ( C ount 11); possession of marijuana with intent to distribute ( C ount 12); and possession of a firearm by a convicted felon ( C ount 13). At a joint jury trial from October 28 through November 7, 2013, Kessler was found guilty of four counts of felony murder (C ounts 1

– 4), two counts of aggravated assa ult ( C ounts 6

– 7), and possession of a firearm during the commission of a crime ( C ount 11). Kessler was acquitted of the remaining charges, except C ount 13, which was nolle prossed. Kessler was sentenced to life in prison without the possibility of paro le for C ount 1 a nd five years in prison consecutive for C ount 11. All remaining counts were merged for sentencing purposes. Kessler filed a motion for new trial on November 19,2 of trial court error and argues that the cumulative effect of these

errors requires th e reversal of his convictions and entitles him to a new trial . We affirm.
1. Relevant to this appeal, 2 the evidence presented at trial showed that, o n April 6, 2012, Kessler’s co

- defendant Timothy Robinson arranged to purchase marijuana from Morgan. That afternoon, Morgan and his fri end, Shatoric Hinton, drove separately to the parking lot of an apartment complex located on Martin Luther King Boulevard in Muscogee County. Hinton testified that, prior to the drug transaction, Morgan parked his green Mazda next to Hinton’s white SUV. Hinton got out of his SUV and sat in the front passenger’s seat of Morgan’s Mazda while Morgan remained in the driver’s seat.

2013, which he amended on March 6, 2017, and amended a second time through ne w counsel on November 27, 2019. After a hearing, the trial court denied the motio n as amended on March 5, 2020. Kessler timely filed a notice of appeal , which was docketed to the term of this Court beginning in December 2020 , and the case was orally argu ed on December 10, 2020. 2 Kessler does not allege that the evidence was insufficient to support his convictions, and this Court no longer routinely reviews the sufficiency of the evidence sua sponte. See Davenport v. State , 309 Ga. 385, 391

- 392 (4) (846 SE2d 83) (2020).3 Then , a gray Mitsubishi Galant pulled into the same parking lot. Kessler and Robinson exited the Ga lant and headed for Morgan’s vehicle while a third man, Edward Love, remained in the backseat of the Galant ; Robinson got into the Mazda and sat in the rear driver’s side seat behind Morgan while Kessler sat behind Hinton. Morgan handed a bag of marijuana to Robinson. Upon seeing the drugs, Kessler stated, “ [Y] eah, that’s the same thing we had.” When Morgan looked down to retrieve more drugs from the floor , Kessler brandish ed a gun and point ed it at Morgan. Morgan said , “Hold on, man. Don’t do that. Don’t do that. Please, don’t do that. . . . Please don’t shoot me, man.” Despite Morgan’s pleas, Kessler sh ot Morgan. After the shooting, Love drove away in the Galant. Hinton ran from the Mazda and headed to a tire shop across the street. When he looked back at the scene, he saw Kessler throw Morgan from the driver’s seat onto the ground ; Kessler then got into the Mazda and drove away. A short time later, Gregory Rivers, Sr., saw two vehicles

– an4 older ca r occupied by two men, and Morgan’s green Mazda

– traveling down Talley Avenue in Columbus near Rivers’ home. The man driving the Mazda parked directly in front of Rivers’ driveway

. The man exited the Mazda, removed a duffle bag from the trunk, entered t he second car with the other two men, and then the group drove off, leaving the Mazda behind. Rivers called the police ; when officers arrived they searched the Mazda and located marijuana on the floorboards and in the front passenger’s seat . They also d usted the car for fingerprints, and a set of fingerprints on the rear passenger’s side door handle was later matched to Kessler ’s prints

. A separate set of o fficers responded to the scene of the shooting at the apartment complex parking lot . When they arr ived, they found Morgan lying face down on the ground, with most of his body positioned under Hinton’s SUV. Morgan’s cell phone was near his body, and his pants were pulled down to his ankles. Officers found small baggies of marijuana, as well as some lo ose marijuana, by Morgan’s feet. Nearby witnesses told the officers that Morgan had5 been shot and that “they stole his car.” An autopsy revealed that Morgan suffered a single gunshot wound to the back right shoulder. The bullet traveled through Morgan’s body, piercing his aorta and left lung, causing his death. Robinson was arrested on April 8, 2012, and gave a statement to officers wherein he admitted: setting up a drug deal with Morgan , arriving at the scene of the crime in a Mitsubishi Galant 3 with other individuals , being in Morgan’s car during the drug transaction and when the shooting occurred , and leaving the scene in the Galant and going to another location where Morgan’s Mazda was present. Robinson also told officers that a .45 caliber ha ndgun was used in the shooting. Kessler was arrested later that evening. Officers found him lying on top of a bed fully dressed with his shoes on , and he appeared to be feigning sleep. A Mitsubishi Galant was parked outside of the home , and Kessler’s fin gerprints were found on the outside of that

3 Robinson told officers that the Galant belonged to a person he only knew as “New York.” This nickname was later linked to Kessler.6 vehicle. Upon searching the residence, officers found more than 45 grams of marijuana hidden throughout the home. Kessler was taken to the s heriff’s office , where he waived his Miranda 4 rights and agreed to spea k with officers in a video

recorded interview . Though he initially denied any involvement, Kessler eventually admitted that he and his associates attempted to rob Morgan during a drug deal. Specifically, Kessler admitted that he had been in Morgan’s car d uring the drug deal and that he was the only person with a firearm, specifically, a .45

- caliber pistol. He told officers that Morgan reached toward the gun , and it accidentally fired. He further admitted that he pulled Morgan out of the car and drove awa y in the Mazda. He stated that he obtained two bags of marijuana from Morgan’s car and that he and some other people divvied up the marijuana and gave it away. Kessler told one of the detectives that he wanted to take full responsibility for the incident. At trial, Kessler took the stand and testified that he accidentally shot Morgan during a gun sale.

4 Miranda v. Arizona , 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966)

.7 2. Kessler contends that the trial court erred by denying his “Motion for Exclusion of Involuntary Admissions and Confessions,” arguing that his confession was induced by an impermissible hope of benefit in violation of OCGA § 24

- 8

- 824 (“ To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of ben efit or remotest fear of injury.”) . It is well settled that [t] he trial court determines the admissibility of a defendant’s statement under the preponderance of the evidence standard considering the totality of the circumstances. (Citation omitted.) Vergara v. State , 283 Ga. 175, 176 ( 657 SE2d 8 63 ) (2008). Although we defer to the trial court’s findings of disputed facts, we review de novo the trial court’s application of the law to the facts. Clay v. State , 290 Ga. 822, 822

- 823 (725 S E2d 260 ) (2012). We will not disturb the trial court’s factua l and credibility determinations unless they are clearly e rroneous, Wright v. State , 285 Ga. 428, 432 ( 67 7 SE2d 82) (2009); however, w here controlling facts are not in dispute, such as those facts discernible from a video tape, our review is de novo, Vergar a , 283 Ga. at 178 ( 657 SE2d 863 ) (citation omitted). Norwood v. State , 303 Ga. 78, 80 (2) (810 SE2d 554) (2018). Applying these principles, we see no error. Prior to trial, Kessler filed a motion to suppress his custodial8 statement to officers, arguing t hat detectives offered him an improper hope of benefit in violation of OCGA § 24

- 8

- 824

. The trial court denied the motion, generally finding that Kessler made “his statement freely and voluntarily without any hope of benefit or fear of injury .” C oncernin g Kessler’s claim of inducement , the trial court concluded, in pertinent part : T he preponderance of the evidence show[ed] that [Kessler’s] statement was not induced by hope of benefit. [Kessler ] testified at the motion to suppress hearing and denied thinking that his cooperation with police might result in any reduced sentence. He stated that he thought he would go on to the jail cell to get some sleep. [Kessler] himself did not think he was bein g offered any reduced sentence for his statement, so [Kessler’s] statement was not induced by hope of benefit of a reduced sentence. On appeal , Kessler points to 15 separate statements, as well as a short colloquy between him and the lead detective , all o f which, Kessler argues, show that the officers consistently promised reduced charges or a reduced sentence in order to secure a confession. 5

5 For example, Kessler claims that the following statements constituted an impermissible hope of benefit: “You’re gonna go to prison but how long you go to prison, you still have some control over that”; “Don’t let the State of Georgia lock you away and th row away the key. Give them some reason that9 Pretermitting whether any of the disputed statements constituted an impermissible hope of benefit, Kessler’s clai m fails because none of the allegedly improper statements actually induced him to admit to shooting Morgan

. As this Court has previously explained, the “ slightest hope of benefit refers to promises related to reduced criminal punishment

– a shorter sente nce, lesser charges, or no charges at all. ” ( Citation and punctuation omitted). Budhani v. State , 3 06 Ga. 315, 325 (2) (b) ( 830 SE2d 195 ) (2019)

. However , pursuant to OCGA § 24

- 8

- 824,

“ establishing that law enforcement has promised an impermissible hope of benefit is not itself sufficient ” to render a confession inadmissible , as the hope of benefit must “ actually induce the defendant’s statements. ” (Citation and punctuation omitted ; emphasis supplied .) Id. at 326. At a pre - trial Jackson

- Denno 6 hearing, Kessler testified and

they can see that you have a chance to be saved, that you have a chance for salvation”; and “Tell me the ‘why’ in this case. That’s the only thing I don’t know. And that’s the one thing you can cling onto that c an change how long you go to prison.” 6 See Jackson v. Denno , 378 U. S. 368 ( 84 SCt 1774, 12 LE2d 908 ) (1964).10 specifically denied that his motivation for confessing was based upon a hope that doing so would lead to reduced charges or a reduced

sen tence. Moreover, at trial, Kessler testified that when he gave “an admission” to the l ead detective, it was “because we had a nice conversation talking about God and everything. And he came in there with my Bible because I carry a Bible on me.” See OCGA § 24

- 8

- 825 (“[T]he fact that a confession has been made under spiritual exhortation, p romise of secrecy, or a promise of a collateral benefit shall not exclude it.”). Finally, the video

- recorded interview shows that Kessler made no admissions and did not confess immediately after any of the disputed statements ; instead , Kessler confessed t o shooting Morgan approximately 20 minutes after the final allegedly improper statement. Based on the foregoing, we conclude that the trial court did not err in finding that Kessler’s confession was not induced by any improper hope of benefit under OCGA § 24

- 8

- 824 and did not err in denying Kessler’s motion to suppress his custodial

statement on this ground

. See Pulley v. State , 291 Ga. 330, 333 (2) ( 729 SE2d 338 ) (2012) (holding that law enforcement promises alone11 are insufficient to render a confession inadmissible and that “there must also be a causal connection between the police conduct and the confession.” ( C itation and punctuation omitted ; em phasis in original))

. See also State v. Brown , 308 Ga. App. 480, 489 (2) (708 SE2d 63) (2011) (holding that even if officers ’ promises to the defendant created an improper hope of benefit, the officers ’ statements did not “ actually induce” the defendant’s confession) aff’d , Brown v. State , 290 Ga. 865 (2) (c) ( 725 SE2d 320 ) (2 012)

. 3. Kessler argues that t he trial court erred by not granting his motion for mistrial when the prosecutor allegedly made improper statements during closing argument

. 7 During the State’s closing , the prosecutor stated : Now, as far as the verdict form goes, you’re going to see

– you’re going to see on there what’s called lesser included crime s and you’ll see felony murder

– or you’ll see like malice murder and then felony murder. And then you’ll see under that involuntary manslaughter. I submit to you, y ou should disregard involuntary manslaughter. That is a misdemeanor and that is not in this case. They want you to let these two thugs get away with robbing and

7 Because of the joint jury trial, the order of closing arguments was as follows: first, counsel for Robinson ; second, counsel for Kessler ; and third, the prosecutor.12 killing somebody and it being a misdemeanor. It is not. It is based on reckless conduct. Well, yes, armed robbery could be considered reckless, but armed robbery is a felony. It is not a misdemeanor and it does not fit involuntary manslaughter. It is felony murder

- Kessler objected and, during a bench conference, moved for a mistrial, arguing that the prosecutor had improperly discuss ed sentencing in front of the jury and mischaracteriz ed the charge of involuntary manslaughter. The trial court denied the motion for mistrial and told the prosecutor to “move on.” The parties left the bench conferen ce , and the prosecutor continued with her closing argument, stating: What you need to do to hold these two thugs accountable is find them guilty of all the murders. Now, you can just circle guilty and just leave blank where it says involuntary manslaughter . But it can’t be both. It has to be one or the other. You can find them guilty of all these murders. It does not mean that they’re going to get more time or something like that. Kessler objected again , arguing that the prosecutor had continu ed to improp erly talk about sentencing in front of the jury. Kessler did not, however, move for a mistrial. The court responded, “That’s right. T he punishment belongs to the Court,” and told the prosecutor13 to move on. The prosecutor resumed argument, stating, “ [t] h ey’re not going to be held responsible for more than one even though you pick more than one. We, meaning the Judge and the lawyers, will pick out one of the ones that you pick from.” Robinson o bjected to this statement , but Kessler did not join or adopt t he objection ; t he trial court sustained Robinson’s objection , instructed the jury “that the punishment would be left up to the Court ,” and once again instructed the prosecutor to “[p] lease move on.” Finally, the prosecutor told the jury: So you can pick all of those and you should beca use they did all of them. I don’ t want you to be confused when you get in there and say which of these do we have to pick? You don’t have to pick. You can pick all of them and you should. Kessler argues that the trial court erred in failing to grant his motion for mistrial because the statements made by the prosecutor

were legally incorrect, rose to the level of prosecutorial misconduct, and improperly injected sentencing into the jury’s consideration . We conclude that the trial court did not abuse its discretion in denying the motion for mistrial

.14 As an initial matter, although Kessler lodged two objections during closing argument , the second objection was sustained by the trial court , and Kessler did not move for a mistria l at that time

. Kessler also did not join Robinson’s later objection. C onsequently, only Kessler’s motion for mistrial

– based upon his first objection to the prosecutor improperly discuss ing sentencing in front of the jury and mischaracteriz ing the char ge of involuntary manslaughter

– is preserved for appellate review. 8 See Stephens v. State , 307 Ga. 731 (1) (b) (838 SE2d 275) (2020) (where defendant fails to adopt or ask to join objection of a co

- defendant, the issue is not preserved for review). See also Gates v. State , 298 Ga. 324 (4) (781 SE2d 772) (2016) (holding that alleged errors based on improper remarks made during closing argument are not subject to plain error review). Turning to that mistrial motion , “[t]rial courts are vested with

8 Kessler also raises a claim of prosecutorial misconduct for the first time on appeal. However, because this claim was not raised in or ruled upon by the trial court , it is not preserved for review on appeal

. See Duvall v. Stat e , 290 Ga. 475 , 476 (2) (a) ( 722 SE2d 62 ) (2012) (defendant’s claim of prosecutorial misconduct generally cannot be raised for the first time on appeal).15 great di scretion to grant or deny mistrials because they are in the best possible position to determine whether one is warranted.” Ragan v. State , 299 Ga. 828, 834 (3) ( 792 S E 2d 342 ) (2016). “The decision w hether to grant a mistrial will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” (Citation and punctuation omitted.) Simmons v. State , 308 Ga. 327, 329 (2) ( 840 SE2d 365 ) (2020)

. Here, Kessler cannot show that a mistrial was essential to the preservation of his right to a fair trial because the trial court corrected any confusion that could have been caused by the prosecutor’s misstatement of the law

. The trial court twice instructed the jury during closing argument

– on ce after sustaining Kessler’s second objection, and again in response to Robinson’s objection

– that sentencing was an issue solely left to the court. Shortly thereafter, during the final jury charge, t he trial court instructed the jury on involuntary man slaug hter based on reckless conduct, reckless conduct, malice murder, felony murder,16 aggravat ed assault, armed robbery, and intent , and again instructed the jury not to concern itself with sentencing. “[W] e presume that jurors follow the law.” (Citations omitted.) Venturino v. State , 306 Ga. 391, 400 (4) (830 SE2d 110) (2019). Thus, assuming without deciding that the prosecutor’s statements were improper , the trial court took appropriate corrective action to address the statements without having to decla re a mistrial. Consequently, this enumeration fails

. 4. During the charge conference, Kessler objected to the trial court giving the State’s requested charge on the definition of a

“ crime ” that included a reference to “ criminal negligence. ” The requested charge stated as follows : “This defendant is charged with a crime against the laws of this state. A crime is a violation of a statute of this state in which there is a joint operation of an act (or omission to act) and intention (or criminal negl igence). ” See Ga. Suggested Pattern Instructions, Vol. II : Criminal Cases § 1.40.10 (4th ed. 2007) ( Definition of a Crime )

. Kessler argued that, because the charge did not also include the definition of “criminal17 negligence,” 9 it would confuse the jury a nd lower the burden of proof for felony murder. The trial court overruled the objection and, during its final jury charge, instructed the jury on the definition of a “crime” as follows: “ [T] his defendant is charged with a crime against the laws of this st ate. A crime is a violation of a statute of this state in which there is a joint operation of an act or an omission to act and intention or criminal negligence.” Kessler argues that this was error. We disagree, because the trial court’s instruction was an accurate statement of the law. See OCGA § 16

- 2

- 1 (a) (“ A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” ). Further, at Kessler’s request , the jury was instructed on the lesser included offense of involuntary manslaughter based on reckless conduct

. And, as this Court has recently explained, “[r]eckless conduct is an act of criminal negligence, rather than an intentional act, that causes bodily harm

9 “Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckles s disregard for the safety of others who might reasonably be expected to be injured thereby.” OCGA § 16

- 2

- 1 (b)

.18 or endangers the bodily safety of another.” Stepp

- McCommons v. State , 309 Ga. 400, 405 (2) (c) (845 SE2d 643) (2020). See also Banta v. State , 2 82 Ga. 392, 397

- 398 (5) (651 SE2d 21) (2007). The trial court also properly charged the jury on the general law of intent, as well as the intent required to prove malice murder, felony murder, aggravated assault, armed robbery, aggravated assault with int ent to rob, and violating the Georgia Controlled Substances Act

. Accordingly, the trial court did not err by including a reference to “criminal negligence” within its definition of a “crime” during the jury charge

. 5. Finally, Kessler argues that the cumu lative effect of the alleged trial court errors entitles him to a new trial. See State v. Lane , 308 Ga. 10, 14 (838 SE2d 808) (2020) (“Georgia courts considering whether a criminal defendant is entitled to a new trial should consider collectively the prej udicial effect of trial court errors and any deficient performance by counsel

– at least where those errors by the court and counsel involve evidentiary issues.”). However, “when reviewing such a claim, we evaluate only the effects19 of matters determined t o be error, not the cumulative effect of non

errors.” (Citation and punctuation omitted.) Cox v. State , 306 Ga. 736, 743 (832 SE2d 354) (2019). Because Kessler has failed to show any errors that would provide this Court with a basis for evaluating their c umulative effect, this claim fails

. Judgment affirmed. All the Justices concur

.