FIRST DIVISION

BARNES, P. J.,

GOBEIL and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

February 3, 2021

In the Court of Appeals of Georgia

A20A2108. JEFFERSON v. THE STATE.

BARNES, Presiding Judge.

A jury found Orlando Jefferson guilty of family violence aggravated assault

and family violence battery, and the trial court denied his motion for new trial. On

appeal, Jefferson contends that the trial court erred by not sufficiently examining

whether the victim was mentally competent to testify as a witness at trial. He further

contends that the trial court erred by granting the State’s petition to give the victim

immunity from prosecution and to require her to testify as a witness for the State.

Additionally, Jefferson argues that his trial counsel rendered ineffective assistance.

For the reasons discussed more fully below, we affirm.

On appeal from a criminal conviction, the appellant is no longer presumed

innocent, and we view the evidence in the light most favorable to the jury verdict.
Batten v. State, 295 Ga. 442, 443 (761 SE2d 70) (2014). So viewed, the evidence

showed that Jefferson and the victim married in May 2016, and Jefferson moved into

the victim’s apartment in DeKalb County. After they married, Jefferson and the

victimbegan abusing illegal narcotics and alcohol. Jefferson would become paranoid,

sexual, and irritable when he took drugs. Their relationship became increasingly

strained as they would stay up for days at a time, and a few months into their

marriage, Jefferson became physically violent toward the victim. Jefferson got angry

with the victim when she did not leave him enough marijuana, and he repeatedly

slapped her in the face until her eye became red and her face was swollen. She called

the police, and Jefferson was arrested. Jefferson continued to physically abuse the

victim after that initial incident, but the victim did not always call the police. 

The incidents forming the bases for the indictment in this case occurred over

a three-day period from Thursday, June 8, 2017 to Saturday, June 10, 2017. On

Thursday, Jefferson became angry with the victim, and he grabbed her around the

neck with both hands, held her down on the floor with his knees on her chest, and

strangled her, causing her to be unable to breath. Jefferson stopped strangling the

victim, but he then hit her in the left eye, pulled her hair, and kicked her in the

stomach. The attack caused the victim to suffer a black eye, a busted lip, a cut behind

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her ear, red marks on her neck, and bruising on her chest, neck, and thigh. The victim

did not call the police after the attack because Jefferson had taken her phone that day. 

On Friday, Jefferson convinced the victim to go to work with him and to wait

for himin the car. After Jefferson’sshift ended and he and the victim returned to their

apartment, they began using drugs, and Jefferson became angry with the victim and

accused her of sleeping with a neighbor. Jefferson lunged toward the victim on the

couch and “chopped” her on the throat with his hand, leaving a red mark. The victim

did not call the police because she hoped that Jefferson would calm down. Later that

night, Jefferson barricaded the door to the apartment with trash cans so that the victim

could not leave without him hearing her. 

On Saturday, the victim refused to go to work again with Jefferson. While

Jefferson was in the bathroom, the victim retrieved a gun hidden under their bed and

fled into nearby woods. The victim called 911 on her cell phone, and she returned to

the apartment once she saw Jefferson drive away from the apartment complex. A

police officer responded to the scene and observed the victim’s injuries. The officer

drove the victim to police headquarters, where a detective spoke with her and took

photographs of her injuries. The victim also emailed the detective pictures of her

injuries that Jefferson had caused. 

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In a subsequent encounter around Mother’s Day in 2018, Jefferson became

angry with the victimand punched her in the face, causing her cheek and eye to swell.

Then, in July 2018, Jefferson threatened to hit the victim so hard in the eye that she

would go blind, said that he wanted to kill her, and told her that he had been thinking

about ways to do the killing. When Jefferson then ran up to the victim, she shot him

twice. The victim called the police and explained what had happened. She was

initially charged for shooting Jefferson but the charges were later dismissed. 

Five indictments were returned against Jefferson based on his violent

encounters with the victim.

1

Jefferson ultimately was tried in the present case solely

on the indictment for the June 2017 incidents. In that indictment, he was charged with

family violence aggravated assault for strangling the victim and with family violence

battery for intentionally causing visible bodily harm to the victim in the form of

redness and bruising as a result of pushing, punching, and kicking her. 

At trial, the victim invoked her right against self-incrimination when

questioned by the State about her encounters with Jefferson. The State asked the trial

court to grant the victim “use immunity” from prosecution under OCGA § 24-5-507

1 One of the indictments againstJefferson was placed on the dead docket before

the trial in this case. 

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and to order her to testify. The trial court granted the State’s request over Jefferson’s

objection, and the victim then testified about her violent encounters with Jefferson

as described above. 

During her testimony, the victim also explained that she suffered from bipolar

disorder and received disability benefits from the military, but that she took

medication so that she could live a normal life. The victim testified that she took

Prozac for her depression and anxiety and Seroquel for her agitation and to help her

sleep. The victim denied experiencing paranoia, hearing voices, or having psychotic

episodes. 

Also during her testimony, the victim testified that she did not want to testify

againstJefferson and did not want him to go to jail, butshe had been told by the State

that she would be arrested if she did not appear at court because she was under

subpoena. The victim also testified that she was undergoing chemotherapy for breast

cancer and felt sick to her stomach, but did not want to risk going to jail for not

appearing at court and then missing her next chemotherapy appointment. However,

the victim testified that she realized she was under oath and “had to tell the truth”

regardless of whether she wanted to testify against Jefferson. 

5
In addition to the victim’s testimony, the State introduced photographs of the

victim’sinjuriesfrom the June 2017 incidents and, among other witnesses, called the

responding officer who observed those injuries. The State introduced into evidence

and played for the jury portions of the victim’s 911 call. After the State rested,

Jefferson elected not to testify and did not call any witnesses. 

The jury found Jefferson guilty of the two charged offenses. Jefferson filed a

motion for new trial, as amended, which included claims that his trial counsel

rendered ineffective assistance. After conducting a hearing where Jefferson’s trial

counsel testified, the trial court denied the motion for new trial, resulting in this

appeal. 

1. Jefferson argues that the trial court erred by not conducting a sufficient

examination into whether the victim was competent to testify as a witness under

OCGA § 24-6-601 (“Rule 601”) of Georgia’s current Evidence Code. According to

Jefferson, the victim’s diagnosis of bipolar disorder, drug abuse, cancer treatment,

and certain comments she made during her trial testimony reflected that she was

incapable of testifying in a competent fashion. 

As an initial matter, Jefferson did not object to the admission of the victim’s

testimony on the ground that she was incompetent to testify under Rule 601. Under

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the current Evidence Code, “where a party fails to object to an evidentiary ruling at

trial, we review such rulings for plain error.” State v. Parks, 350 Ga. App. 799, 807

(830 SE2d 284) (2019). See OCGA § 24-1-103 (d) (“Nothing in this Code section

shall preclude a court from taking notice of plain errors affecting substantial rights

although such errors were not brought to the attention of the court.”).

2 And, as

explained below, the trial court did not commit any error, much less plain error, by

allowing the victim to testify in this case. 

Rule 601 provides: “Except as otherwise provided in [Title 24, Chapter 6],

every person is competent to be a witness.” Embodied in Rule 601 is the presumption

2

 Plain-error review consists of four components:

First, there must be an error or defect–some sort of deviation from a

legalrule–that has not been intentionally relinquished or abandoned,i.e.,

affirmatively waived, by the defendant. Second, the legal error must be

clear or obvious, rather than subject to reasonable dispute. Third, the

error must have affected the defendant’s substantial rights, which in the

ordinary case means he must demonstrate that it affected the outcome of

the trial court proceedings. Fourth and finally, if the above three prongs

are satisfied, the appellate court has the discretion to remedy the

error–discretion which ought to be exercised only if the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings. Thus, beyond showing a clear or obvious error, plain-error

analysis requires the defendant to make an affirmative showing that the

error probably did affect the outcome below.

(Citations and punctuation omitted.) Parks, 350 Ga. App. at 808. See Gates v. State,

298 Ga. 324, 327 (3) (781 SE2d 772) (2016).

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that witnesses are competent to testify. See United States v. Devin, 918 F2d 280, 291-

292 (IV) (D) (1st Cir.1990) (“It is a well-established principle, embodied in Fed. R.

Evid. 601, that witnesses are presumed competent to testify.”); United States v.

Khoury, 901 F2d 948, 966 (VII) (11th Cir. 1990) (“[T]he Federal Rules of Evidence

provide an initial presumption of competence.”).3 And there is nothing in the record

that would rebut that presumption in this case. While Jefferson notes that the victim

had been diagnosed with bipolar disorder, the victim testified that she took

medication to control her condition. In any event, suffering from a mental health

condition is not one of the statutory exceptions to Rule 601.4Indeed, “Rule 601

3 As our Supreme Court has explained, “Many provisions of the new Evidence

Code were borrowed from the Federal Rules of Evidence, and when we consider the

meaning of these provisions, we look to decisions of the federal appellate courts

construing and applying the Federal Rules, especially the decisions of the United

States Supreme Court and the Eleventh Circuit.” Olds v. State, 299 Ga. 65, 69 (2)

(786 SE2d 633) (2016). In the context of criminal cases, Georgia’s Rule 601 is

materially identical to Federal Rule of Evidence 601 (“FRE 601”), which providesin

pertinent part that “[e]very person is competent to be a witness unless these rules

provide otherwise.”

4

 Rule 601 abolishes any competency requirements other than those found in

other provisions of Title 24, Chapter 6. See OCGA § 24-6-601. In thisregard, OCGA

§ 24-6-602 requires that a witness have personal knowledge of matters to which he

or she testifies; § 24-6-603 (a) requires that an adult witness declare that he or she

will testify truthfully by an oath or affirmation; § 24-6-605 addresses the

disqualification of judges as witnesses; and § 24-6-606 addressesthe disqualification

of jurors as witnesses.

8
allows one not mentally competent to testify, and it assumes that jurors are capable

of evaluating a witness’s testimony in light of the fact that [s]he is not mentally

competent.” United States v. Gates, 10 F3d 765, 766 (I) (11th Cir. 1993) (construing

FRE 601). See Andrews v. Neer, 253 F3d 1052, 1062-1063 (IV) (8th Cir. 2001)

(witness’s “status as an involuntarily committed schizophrenic . . . [did] not ipso facto

render him incompetent to testify in federal district court” under FRE 601); United

States v. Roach, 590 F2d 181, 186 (V) (5th Cir. 1979) (quoting Advisory Committee

Note to FRE 601 for proposition that questions of mental capacity are “particularly

suited to the jury as one of weight and credibility”). Hence, the fact that the victim

had been diagnosed with bipolar disorder, standing alone, did not require the

exclusion of her testimony, but rather was a matter that the jury could consider in

weighing her testimony and assessing her credibility.

Furthermore, despite Jefferson’s suggestion on appeal, the record reflects that

the victim was able to coherently describe the incidentsleading to the charged crimes

based on her personal knowledge of those matters and was responsive to the

questions asked to her. Likewise, the record is devoid of any evidence reflecting that

her history of drug and alcohol abuse or her chemotherapy treatment for her cancer

affected her competency to testify in any manner whatsoever. See United States v.

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Jackson, 576 F2d 46, 48 (5th Cir. 1978) (narcotics use goes to witness’s credibility,

not his or her competency to testify under FRE 601). Nor is there any allegation that

the victim failed to understand the nature of the oath administered to her. 

Under these circumstances, the trial court committed no error, plain or

otherwise, in allowing the victim to testify at trial. See, e.g., United States v.

Skorniak, 59 F3d 750, 755 (II) (B) (8th Cir. 1995) (witness who had previously been

hospitalized for mental health problems and who had a history of drug and alcohol

abuse was competent to testify under FRE 601; those issues went to the witness’s

credibility, not his competency to testify); United States v. Peyro, 786 F2d 826, 830-

831 (III) (8th Cir. 1986) (district court did not err in finding that witness with memory

problems and who was “emotionallyunbalanced” was competent to testify under FRE

601); United States v. Gutman, 725 F2d 417, 420 (7th Cir. 1984) (district court

authorized to conclude that witness who “had bouts of serious mental illness in the

10
year before trial” was competent to testify under FRE 601).5

Jefferson thus has failed

to show any basis for a new trial on the asserted ground.

2. Jefferson contends that the trial court erred by granting, over a defense

objection, the State’s request for the victim to be given “use immunity” from

prosecution under OCGA § 24-5-507 and be required to testify at trial. According to

Jefferson, the immunity granted to the victim was defective such that her Fifth

Amendmentright againstself-incrimination was violated.Jefferson also contendsthat

the victim’s Sixth Amendment right to counsel was violated because she was not

advised to consult counsel about the scope of her “use immunity.” 

Generally speaking, and particularly outside theFirst Amendment

context, a criminal defendant will not be heard to complain of the

violation of another person’s constitutional rights. And Georgia courts

have specifically held that a criminal defendant has no right to raise

5 We also note that a trial court generally has no duty to sua sponte conduct a

witness competency hearing. See United States v. Kelly, 436 F3d 992, 996 (II) (C)

(8th Cir. 2006) (construing FRE 601). See also Gates, 10 F3d at 767 (I) (trial court

committed no error by “not granting an examination and in not conducting a hearing

on the issue of competency” of witness who had previously been hospitalized in

mental health institution); Khoury, 901 F2d at 966 (VII) (trial court did not err in

failing to order psychiatric examination of witnessto determine his competency). And

Jefferson has pointed to nothing in the record that would have required such a hearing

in this case. 

11
alleged violations of another individual’s right against

self-incrimination[.]

(Citations and punctuation omitted.) Romer v. State, 293 Ga. 339, 342 (2) (745 SE2d

637) (2013). Likewise, a criminal defendant has no right to raise a claim that another

person’s Sixth Amendment right to counsel was violated because “the rights

guaranteed by the Sixth Amendment are personal.” Graham v. State, 171 Ga. App.

242, 246 (3) (319 SE2d 484) (1984). Jefferson therefore lacks standing to challenge

anyalleged violation of the victim’s Fifth Amendment right againstself-incrimination

or her Sixth Amendment right to counsel. See Wilson v. State, 286 Ga. 141, 142 (2)

(686 SE2d 104) (2009) (concluding that “a criminal defendant lacksstanding to assert

another’s privilege against self-incrimination” because “[t]he privilege against

self-incrimination isthat of the person under examination as a witness and isintended

for his protection only”) (citations and punctuation omitted); Lawton v. State, 259 Ga.

855, 856 (2) (388 SE2d 691) (1990) (defendant could not challenge trial court’s

rulings granting a witness immunity from prosecution and requiring the witness to

testify at trial because defendant lacked standing to assert the witness’s privilege

against self-incrimination); Graham, 171 Ga. App. at 246 (3) (defendants had no

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standing to argue that their co-defendant’s Sixth Amendment right to counsel had

been violated).

3.Jefferson arguesthat he received ineffective assistance fromhistrial counsel.

To establish a claim of ineffective assistance of counsel under the test enunciated in

Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984), Jefferson 

must prove both that his counsel’s performance was constitutionally

deficient and that the deficiency resulted in prejudice to his case. To

establish deficient performance, [Jefferson] must demonstrate that his

trial counsel’s acts or omissions were objectively unreasonable,

considering all the circumstances at the time and in the light of

prevailing professional norms. To meet the prejudice prong of

Strickland, [Jefferson] must show that there is a reasonable probability

that, butfor counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. This Court need not

address both components of the inquiry if the defendant makes an

insufficient showing on one.

(Citations and punctuation omitted.) Stepp-McCommons v. State, __ Ga. __ (4) (845

SE2d 643) (2020). Guided by the Strickland standard, we turn to Jefferson’s specific

claims of ineffective assistance.

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(a) Jefferson first maintains that his trial counsel was ineffective in failing to

move to exclude the testimony of the victim on the ground that she was incompetent

under Rule 601. For the reasons discussed supra in Division 1, such a motion would

not have been successful, and thus Jefferson has failed to show that his counsel

performed deficiently. “Trial counsel’s failure to pursue a futile motion does not

constitute ineffective assistance.” (Citation and punctuation omitted.) Nickerson v.

State, 248 Ga. App. 829, 832 (2) (b) (545 SE2d 587) (2001).

(b) Jefferson next argues that his trial counsel was ineffective “[f]or failing to

pursue the allegations of prosecutorial threatsto [the victim].” But the trial transcript

reflects that Jefferson’s trial counsel elicited testimony from the victim during crossexamination that the State had threatened her thatshe would be arrested if she did not

appear at court and testify,

6

and later during closing argument, counsel asserted that

the victim had been coerced to testify favorably toward the State based on the threat

of arrest. Moreover, Jefferson failed to present any testimony or other evidence at the

motion for new trial hearing reflecting that there were any additional threats made to

the victim that were not highlighted by trial counsel during his cross-examination of

6 On redirect examination, the victim clarified that she had been subpoenaed

to appear at trial and had been told that she would be arrested if she failed to comply

with the subpoena. 

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the victim or during closing argument. Jefferson therefore failed to show that his

counsel performed deficiently in addressing the alleged prosecutorial threats made to

the victim. See, e.g., Gaston v. State, 307 Ga. 634, 642 (2) (d) (837 SE2d 808) (2020)

(“The scope of cross-examination is grounded in trial tactics and strategy, and will

rarely constitute ineffective assistance of counsel.”) (citation and punctuation

omitted). 

(c) Jefferson contends that histrial counsel was deficient in failing to object on

hearsay grounds to the victim’s testimony that Jefferson threatened to hit her so hard

that she would be blinded in one eye, said that he wanted to kill her, and told her that

he had been thinking about ways to do the killing. But Jefferson’s statements to the

victim “were his own and, therefore, were admissible as admissions of a party

opponent.” Lyons v. State, 309 Ga. 15, 28 (8) (d) (843 SE2d 825) (2020). See OCGA

§ 24-8-801 (d) (2) (A). “Failure to lodge a meritless objection does not support an

ineffective assistance claim.” Lyons, 309 Ga. at 28 (8) (d). 

(d) Jefferson arguesthat histrial counsel wasineffective in failing to have voir

dire transcribed. “[A]lthough objections and rulings thereon made during jury

selection are required to be reported and made part of the trial record, there is no

requirement that the entire jury selection be reported and made part of the record in

15
a nondeath penalty felony case.” (Citation and punctuation omitted.) Curtis v. State,

330 Ga. App. 839, 842 (1) (a) (769 SE2d 580) (2015). Jefferson’s speculation that

error may have occurred during the unrecorded voir dire “is insufficient to show any

deficiency on the part of counsel” or any prejudice resulting therefrom. Dunlap v.

State, 291 Ga. 51, 53 (3) (727 SE2d 468) (2012). See Curtis, 330 Ga. App. at 842 (1)

(a) (holding that counsel’s failure to have voir dire transcribed did not “constitute a

basis for an ineffective assistance of counsel claim”). Jefferson thus cannot succeed

on this ineffective assistance claim. 

(e) Jefferson asserts that his trial counsel’s cross-examination of the victim

“indicated that he was not listening nor taking notes when she was on direct

examination.” We have reviewed the trial transcript and conclude that it does not

support Jefferson’s blanket assertion.Rather, the transcriptreflectsthattrial counsel’s

cross-examination of the victim fell within the broad range of professional conduct

afforded trial attorneys. See Goodson v. State, 305 Ga. 246, 249 (2) (824 SE2d 371)

(2019) (noting that to prove deficient performance, “[t]he criminal defendant must

overcome the strong presumption that trial counsel’s conduct falls within the broad

range of reasonable professional conduct”) (citation and punctuation omitted). 

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(f) Jefferson asserts that “[t]he trial court corrected trial counsel’s

misunderstanding of its ruling on the admissibility of the 911 tape” and later “had to

correct trial counsel’s confusion about a charge the [S]tate had just proposed.”

However, Jefferson fails to offer any explanation as to how these alleged

“corrections” by the trial court demonstrate any conductrising to the level of deficient

performance by his trial counsel or resulted in any prejudice to him.

4. Lastly, Jefferson cites to our Supreme Court’s recent decision in State v.

Lane, 308 Ga. 10, 14 (1) (838 SE2d 808) (2020), where the Court held that “Georgia

courts considering whether a criminal defendant is entitled to a new trial should

consider collectively the prejudicial effect of trial court errors and any deficient

performance by counsel–at least where those errors by the court and counsel involve

evidentiary issues.” As previously explained, Jefferson has failed to show any

evidentiary errors by the trial court or that his trial counsel’s performance was

deficient in any respect. “Accordingly, where [Jefferson] hasfailed to showerror, [he]

has likewise failed to show cumulative error.” Crider v. State, 356 Ga. App. 36, 50

(4) (846 SE2d 205) (2020).

Judgment affirmed. Gobeil and Pipkin, JJ., concur. 

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