In the Supreme Court of Georgia

Decided: August 21, 2023

S23A0628. JACKSON v. THE STATE.

 PETERSON, Presiding Justice.

Joseph Jackson appeals his malice murder conviction for the 

stabbing death of Claudine Hargrove.1 Jackson argues that (1) the 

trial court erred in failing to take curative action after the prosecutor 

commented on his post-arrest silence by questioning him about why 

he waited until trial to assert that he acted in self-defense; (2) trial 

counsel was ineffective for failing to move for a mistrial after this 

questioning; and (3) the cumulative harm from these errors 

 1 The crime occurred on the night of August 10, 2018. In October 2018, a 

Gwinnett County grand jury indicted Jackson and charged him with malice 

murder, felony murder, and aggravated assault. After a jury trial in April 2022, 

the jury found Jackson guilty on all counts. He was sentenced to life without 

the possibility of parole on the malice murder count, and the remaining counts 

were vacated by operation of law or merged for sentencing purposes. Jackson 

timely filed a motion for new trial. The trial court denied the motion in January 

2023, and Jackson timely filed a notice of appeal. Jackson’s appeal was 

docketed to this Court’s April 2023 Term and submitted for a decision on the 

briefs.
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warrants a new trial. Given the overwhelming evidence of guilt, we 

conclude that any error by the trial court in failing to take some 

corrective action was harmless, trial counsel was not deficient in 

failing to move for a mistrial because such a motion would have been 

futile, and there were not multiple errors to assess cumulatively. 

Therefore, we affirm. 

The trial evidence showed the following. In August 2018, 

Jackson and Hargrove lived together at an extended-stay hotel in 

Gwinnett County. Jackson’s father and brother were also staying at 

the same hotel but in a different room.

On the night of August 10, Jocelyn Walker, who was staying in 

a room next to Jackson and Hargrove, heard a man and a woman 

arguing in Jackson and Hargrove’s room. Walker testified that she 

initially heard “fussing” but soon heard what seemed like furniture 

moving and “pounding” and “kicking” on the walls. Walker could not 

hear what the man was saying, but she heard the woman say 

repeatedly, “I’m not lying.” Walker called security, saying, “This is 

not a fight . . . I think she’s getting beat down.” As she waited for 
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security to arrive, Walker heard the woman next door say, “Oh, no; 

oh, my God, no; oh, my God.”

When a security guard arrived, he was directed to Jackson and 

Hargrove’s room. He knocked on the door and stayed there for about 

a minute. Walker heard the security guard talking to someone. The 

surveillance video from the hotel does not show the door ever 

opening while the security guard was there. Walker later looked out 

her window and saw a man with a dripping towel wrapped around

his left hand.

At some point that night, Jackson’s father went to Hargrove’s 

room because security informed him that there had been complaints 

of an argument coming from that room. Jackson left the room, 

quickly shutting the door behind him, and walked with his father to 

his father’s room, at which point Jackson’s father noticed that 

Jackson’s hand was bleeding. Jackson’s father grabbed a towel and 

asked Jackson what happened, but Jackson refused to talk about it. 

Jackson called his brother and said he was bleeding from several 

injuries to his hands, but Jackson did not mention how he sustained 
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those injuries or that Hargrove had been injured in any way.

Jackson called 911 for his bleeding hand. A responding medic 

noticed severe lacerations on Jackson’s hands that Jackson claimed 

were sustained while doing a magic trick with a knife. A police 

officer arrived shortly thereafter and found Jackson in an 

ambulance with his hands wrapped with a bandage soaked with 

blood. The police officer asked Jackson what happened, and he

responded that he had cut himself “doing knife tricks” and denied 

that he had been attacked. Jackson provided no other information 

and was transported to a hospital. There, he told medical providers

that he was injured while doing a magic trick.

While Jackson was at the hospital, his brother asked security 

to check Hargrove’s room because he was still concerned about 

Jackson’s phone call and wanted to know what happened at the 

hotel. No one responded to knocks on the door, so security opened 

the door, went inside the room, and found Hargrove on the floor. 

Security called 911, and police found Hargrove’s dead body on the 

floor next to the bed and a knife blade under her body. The blade 
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was about 7.5 inches long, was bent, and was covered in blood. The 

handle was located on a nearby table.

After Hargrove’s dead body was found, a detective interviewed 

Jackson at the hospital. Other than the injuries to Jackson’s hands, 

the detective did not notice any other injuries to Jackson, and 

Jackson never reported any. After asking some background 

questions and getting more detailed information about the claimed 

knife trick, the detective asked Jackson whether anyone else was 

with him at the time he was injured. Jackson said he was alone in 

his room at the time. The detective informed Jackson that Hargrove 

had “a cut on her” and asked Jackson if he knew anything about 

it.Jackson began asking questions about Hargrove’s injury 

suggesting that he did not know anything about it, at which point 

the detective read Jackson his Miranda2 rights. After asking more 

questions about Hargrove and being informed that she had died, 

Jackson said he did not want to speak any more and then invoked 

his right to counsel, ending the interview.

 2 Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
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Hargrove’s autopsy revealed 13 different cut and stab wounds, 

with many injuries to the left side of her body, including her face, 

neck, and chest. One stab wound severed her carotid artery and was 

so large that her spine was visible. Another stab wound completely 

severed Hargrove’s jugular vein, and another reached her heart. 

These wounds would have caused massive blood loss and death 

within minutes. Hargrove also sustained wounds to her hand and 

arm that were consistent with defensive wounds and had fractures 

to her nose and jawbone that were determined to have occurred 

around the time of her death. The medical examiner determined 

that the cause of death was sharp-force injuries to the neck and 

chest, with other significant conditions being sharp-force injuries to 

the head and arm and blunt-force trauma of the head and face.

Jackson testified at his trial and claimed that he acted in selfdefense. Jackson said that Hargrove had been drinking, became 

upset by something he said about her children, grabbed a knife, and 

swung it at him. Jackson stated that he grabbed the knife blade, 

causing the cut to his hand, and that a struggle ensued, during 
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which time he began “passing out.” Jackson said he punched 

Hargrove a couple of times, gained control of the knife, and began 

swinging “aimlessly” at her. On cross-examination, Jackson 

admitted that he lied to everyone he talked to following the stabbing 

when he reported that he was injured doing a knife trick. Jackson 

also “guess[ed]” that he had enough strength to break bones in 

Hargrove’s face despite feeling like he was about to pass out. Later, 

the following exchange occurred:

PROSECUTOR: And you would admit, Mr. Jackson, that 

in four years [from the time of the crime to the time of the 

trial], this is the first time you have told anybody that this 

was self-defense?

JACKSON: That it was — I never talked about it to 

anybody except my lawyer.

PROSECUTOR: But no one ever called me, right? 

JACKSON: Huh?

PROSECUTOR: You didn’t call me. Your family never 

contacted me. Nobody ever contacted me.

At this point, trial counsel objected, arguing that Jackson had no 

obligation to call the prosecutor when he was represented by 
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counsel. Counsel also argued that the question was overly 

argumentative because Jackson had answered the question. “It’s his 

constitutional right,” counsel added. The prosecutor agreed to “move 

on,” leading to the following inquiry.

PROSECUTOR: But you would agree, Mr. Jackson, that 

you have never told anyone from the State back then, that 

you killed [Hargrove] in self-defense?

JACKSON: No.

PROSECUTOR: All because you didn’t want to deal with 

it, right? 

JACKSON: Well, I just didn’t trust to talk to anybody 

except for my lawyer.

PROSECUTOR: So you waited until now? Now’s when 

you decided to tell everybody about self-defense? 

JACKSON: I just wanted — I wanted to — I mean, I just 

— I don’t — I guess now was — I mean when I talked —

now is not the first time, like here, right this second. But 

talking to my lawyer, it was probably the first time.

1. Jackson argues that the prosecutor improperly “questioned 

[him] about this post-arrest silence” in the above-quoted crossexamination. Jackson argues that, as a result of the prosecutor’s 

remarks, the trial court had a duty under OCGA § 17-8-75 to rebuke 
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the prosecutor or take some other curative action, such as declaring 

a mistrial. Jackson fails to show that any error by the trial court 

entitles him to relief. 

OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements 

of prejudicial matters which are not in evidence, it is the 

duty of the court to interpose and prevent the same. On 

objection made, the court shall also rebuke the counsel 

and by all needful and proper instructions to the jury 

endeavor to remove the improper impression from their 

minds; or, in his discretion, he may order a mistrial if the 

prosecuting attorney is the offender.

Even assuming that Jackson’s objection about his 

“constitutional right”3 was sufficient to preserve the issue, not all of 

the prosecutor’s questions or remarks were improper. Before he was 

arrested, Jackson did not remain silent, but talked to the police and 

others. And the prosecutor was entitled to point out inconsistencies 

between Jackson’s trial testimony that he acted in self-defense and 

his pre-arrest statements that he sustained his injuries while doing 

 3 Counsel’s objection did not identify which constitutional right he was 

referring to, including whether it was one based on the United States 

Constitution or the Georgia Constitution. 
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magic tricks. See Johnson v. State, 292 Ga. 785, 788 (3) (741 SE2d 

627) (2013) (permissible for prosecutor to cross-examine testifying 

defendant about his failure to mention his fear for his safety to police 

or others when defendant had talked to police without having 

invoked his right to remain silent); see also Bradford v. State, 299 

Ga. 880, 887 (7) (792 SE2d 684) (2016) (“[T]he prosecutor’s line of 

questioning permissibly explored the inconsistencies between 

appellant’s trial testimony and his prior statements made to 

civilians on the scene and the police soon after the shooting.”)

On the other hand, to the extent that some of the prosecutor’s

questions regarded Jackson’s failure to come forward after invoking 

his constitutional right to counsel, this was improper. See Doyle v. 

Ohio, 426 U.S. 610, 619 (96 SCt 2240, 49 LE2d 91) (1976) (“We hold 

that the use [even] for impeachment purposes of petitioners’ silence, 

at the time of arrest and after receiving Miranda warnings, violated 

the Due Process Clause of the Fourteenth Amendment.”). But even 

assuming that the court erred in failing to take any remedial action, 

such assumed error was harmless. See O’Neal v. State, 288 Ga. 219, 
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223 (702 SE2d 288) (2010) (trial court’s OCGA § 17-8-75 error is 

reviewed for harmlessness). 

Although the prosecutor’s questioning may have touched on 

Jackson’s constitutional right to remain silent, Jackson’s argument 

is not directly constitutional in nature; instead, he argues that the 

trial court failed to meet its statutory duty under OCGA § 17-8-75. 

And we have reviewed such alleged errors under the 

nonconstitutional harmless test, under which an error is “harmless

if the State shows that it is highly probable that the error did not 

contribute to the verdict, an inquiry that involves consideration of 

the other evidence heard by the jury.” State v. Lane, 308 Ga. 10, 21 

(4) (838 SE2d 808) (2020); see also Meadows v. State, 316 Ga. 22, 28 

(4) (c) (885 SE2d 780) (2023) (applying nonconstitutional 

harmlessness test to trial court’s failure to take curative action 

under OCGA 17-8-75 after the prosecutor commented on defendant’s 

right to remain silent).

Here, in conducting that review, we consider only the harm 

from comments that touched on Jackson’s failure to come forward 
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following the assertion of his constitutional right, as some of the 

other questioning was proper. Considering all of the evidence, as a 

reasonable juror would, we are convinced the error was harmless. 

The evidence of Jackson’s guilt was overwhelming. The trial 

evidence pointed only to Jackson as the culprit, and Jackson

admitted that he stabbed Hargrove. Although Jackson claimed at 

trial that he acted in self-defense, the claim was not credible. 

Jackson’s self-defense claim hinged on his own trial testimony, but 

that testimony was severely impeached by his prior inconsistent 

statements. Jackson told various people prior to his arrest that the 

injuries to his hands were caused by doing knife tricks, not as a 

result of stabbing Hargrove repeatedly, and the jury was free to use 

these prior inconsistent statements not only to find him not credible, 

but also as substantive evidence of guilt. See Esprit v. State, 305 Ga. 

429, 437 (2) (c) (826 SE2d 7) (2019) (under the current Evidence 

Code, “a prior inconsistent statement of a witness who takes the 

stand and is subject to cross-examination is admissible as 

substantive evidence, and is not limited in value only to
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impeachment purposes” (citation and punctuation omitted)). 

Moreover, even if Hargrove was the initial aggressor as Jackson 

claimed, a jury could easily reject his self-defense claim given that 

Jackson brutally and repeated stabbed Hargrove and he had no 

visible injuries, other than those to his hands, following that 

onslaught. See Wynn v. State, 313 Ga. 827, 839 (5) (874 SE2d 42) 

(2022) (“[A defendant who uses excessive force in response to the 

victim’s use of force is not justified.” (citation and punctuation 

omitted)). Given these circumstances, even if some of the 

prosecutor’s questioning was improper, it was highly probable that 

it did not make any difference to the outcome of the case, and so any 

error was harmless. 

2. Jackson next argues that trial counsel was ineffective for 

failing to move for a mistrial based on the prosecutor’s allegedly 

improper questioning above. We disagree.

To succeed on his claim, Jackson must establish that his

counsel’s performance was constitutionally deficient and that he 

was prejudiced by this deficient performance. See Strickland v. 
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Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). 

To show deficient performance, Jackson’s must “overcome the strong 

presumption that counsel’s performance fell within a wide range of 

reasonable professional conduct, and that counsel’s decisions were 

made in the exercise of reasonable professional judgment.” Mims v. 

State, 304 Ga. 851, 855 (2) (823 SE2d 325) (2019) (citation and 

punctuation omitted). “[D]ecisions regarding trial tactics and 

strategy may form the basis for an ineffectiveness claim only if they 

were so patently unreasonable that no competent attorney would 

have followed such a course.” Richards v. State, 306 Ga. 779, 781 (2) 

(833 SE2d 96) (2019) (citation and punctuation omitted). To 

demonstrate prejudice, Jackson must establish “a reasonable 

probability that, but for 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.” Mims, 304 Ga. at 855 (2) (citation and punctuation 

omitted). A defendant must meet both prongs of the Strickland test;
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otherwise, his ineffective assistance claim fails. See Smith v. State, 

296 Ga. 731, 733 (2) (770 SE2d 610) (2015). 

“When prejudicial matter is improperly placed before the jury, 

a mistrial is appropriate if it is essential to the preservation of the 

defendant’s right to a fair trial.” Lynn v. State, 310 Ga. 608, 612 (3) 

(852 SE2d 843) (2020). A trial court has broad discretion to grant a 

mistrial and may consider less drastic alternatives. See Brown v. 

State, 285 Ga. 324, 325 (1) (676 SE2d 221) (2009). A claim based on 

the failure to move for a mistrial fails if a defendant cannot show 

that such a motion would have been granted. See Lynn, 310 Ga. at 

613 (4) (a). 

Jackson has not shown that his counsel’s performance was 

deficient. As discussed above, the evidence of guilt was 

overwhelming, and his claim of self-defense was dubious at best. 

Although we have assumed without deciding that the prosecutor 

made an improper reference to Jackson’s post-arrest silence, this 

came after the prosecutor presented evidence revealing the brutal 

attack on Hargrove and after Jackson admitted on cross-
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examination that, prior to his arrest, he had lied to police and others 

about Hargrove’s death and the cause of his injuries. The prosecutor 

also permissibly commented on his pre-arrest statements, noting 

that he never once suggested before his arrest that he had stabbed 

Hargrove in self-defense. Thus, although a comment on Jackson’s 

post-arrest silence would have been unfairly prejudicial, any such 

comment had very little, if any, effect on Jackson’s defense given the 

overwhelming evidence of guilt, his admission to stabbing Hargrove, 

and the significant evidence undercutting his justification defense. 

These circumstances do not show that a mistrial was required to 

preserve Jackson’s right to a fair trial, so trial counsel was not 

deficient for failing to request one. See Lynn, 310 Ga. at 613 (4) (a); 

see also Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467)

(2014) (“[T]he failure to make a meritless motion or objection does 

not provide a basis upon which to find ineffective assistance of 

counsel.”); Whitaker v. State, 283 Ga. 521, 524 (3) (661 SE2d 557) 

(2008) (mistrial required when improper comment on defendant’s 
17

exercise of his right to remain silent “substantially prejudice[s] the 

defendant in the eyes of the jury”). Accordingly, this claim fails. 

3. And because there are not multiple errors to aggregate, 

Jackson’s cumulative prejudice claim also fails. See State v. Lane, 

308 Ga. 10, 21 (4) (838 SE2d 808) (2020) (cumulative error claim 

requires that the defendant first show that “at least two errors were 

committed in the course of the trial” (citation and punctuation 

omitted)). 

Judgment affirmed. All the Justices concur.