1 The crim es were comm itted on August 29 and Se ptemb er 4, 2009. Johnson was indicted by

a Lownde s County

grand jur y in A pril 2011 for

the felony murder , aggravatedassault, and robbery by f orce of Robert Cra

wford an d for the f

elony murder and armed robbery

of Michael McCaskill. Johnson was also indict ed for the armed robbery of Will ie Miller

and f or obstr uction of a law enforcement officer. Foll owing a j ury tr

ial held in A

ugust 2011, Jo hnson was c onvicted on all counts except that for t

he armed robbery

of Miller , which w a s nolle pros sed, and t he obstruction

count, on w

hich he wa s a cquitted. Johnson was sentenced to life impri sonme ntfor

each of t he felony murders and to a 20-ye ar term of im prisonm ent for each of t he other th

ree fel onies. Jo hnson f

iled a tim ely m otion for new trial o n September

30, 2011, w

hich was s ubsequently

ame nded. Following

a hearing held on April4, 2013, t

he trial c ourt denied

the m otion for

new trial on Septem

ber 16, 201 3. Johnson filed his notice of appeal on Octobe r 14, 2013. His appea l was docketed to FINAL C OPY 295 Ga. 421 S14A055 8. JOHNSON v. THE STATE. HUNSTEIN, Justice. Appella ntDonterr

ius Johnson w as convi cted of two c ounts of felony murder and related offen ses in conne ction with t he beati ng deat hs of two vi ctims in separate incidents in 2009. Jo hnson n ow appeals, challeng ing the suf ficiency of the evidence, t

he admission of his videota ped police intervi ew, a

nd the proprietyof his sen

tencin g, and c ontending t hat his t rial c ounsel render ed ineffe ctiveassistance. We agree that John son was i mprope rly sen tence d on the two felonies underly ing his fe lony m urder co nvictions and

therefore vacat e his senten ces on C ount s 2 and 5. In al l othe r resp ects, we af firm. 1the January

2014 term

of this Cour

t and was t

hereaft er subm

itted for decision on t

he briefs. 2 On August 29, 2009, Johnso n and ac compl ice C orey Singleton encountered victim

Robert Crawf ord sittin g on the front stoop of the Valdosta boardinghou se in which he resid ed

. Johnson and Singleto n approached and began tal kin g to Crawford , and Singleto n asked Crawfor d whether he wanted to buy some crac k cocaine. Singleton then hit Crawford in th e face and dragged him off the s toop into t

he front y ard. Joh

nson bega

n hitting a

nd kicking Crawfo rd, while Singleton w ent through Cra

wford’s pockets, seized his w allet, and went thr ough its c ontents. Johnson and Singleto n then ran aw ay in di fferen t direct ions. Police

responding

to the sc ene found

Crawf ord lying face down

in the yard, unrespo nsive, with abr asions on h is head and footpr ints on the

back of his shirt. A

cell p ho n e hold er and o ther it ems appear ing to have come f rom a wallet were f

ound close

by. Crawford died twelve days later from c omplic ations of blunt force head trauma. On Septem

ber 4, 200 9, Johnson a

nd Singl et on met

at a ba r, outside of which they w ere a

pproache d by

victim Michae l McCaskill, who wa nted to buy crack cocaine. Singleto n wal ked wit h McCa skill ben eath a nearby overpas s,3

while Johnson and several other men wai ted fo r a signal from Singleton. Singleton hit McC askill, knocking

him to the ground, and the others rushed to join in. Johnso n struck M cCask ill with a pair of brass knuc kles, a

nd Singlet on went thro ugh t he victim’s poc kets, w hile the others c ontinued hitting and kicking him. One of th e other

men, WillieRowe, ran over M cCaskill’s neck with a bicycle. Singleton urinated on the unconscio us victim, and the men th en fled. When Mc Caskil l was fo und, he was unc onscious a nd covere d in ant bi tes, with severe

injurie s to his he ad, fa ce, a nd ear, and a bi c ycle trac k across his neck. Policefound

his wallet nearby . McCaskill, w ho suffered an anoxic brain injury, die d af

ter spe nding several m onths in a nursing hom e in a ve getative state. Detectives interviewed Sin gleton, who ad mitted that he and Johns on had been involved in the at

tack on McCa skill and that Rowe had ridden a bicycle

over his nec k. Single ton also implic ated Jo hns on in the attac k on Craw ford. Detectives then went to Johnson ’ s aunt’s ho use in an attempt to in terview Johnson, who lived with his au nt intermittently. Alerted to their arrival, Johnson exited from the rear of the house an d ran aw ay. T he aunt gave c onsent to a search of the ho me, and the detectives fou nd a pair of br ass knuckles u nder4

a cushion on

the sofa on wh ich Johnso n had been sleepin g. They also se ized a pair o f sho es fro m that same r oom. On the brass knu ckles was blood that was later matc hed to tha

t of McC askill. The shoes’ tread matched the footp rint on the back of C rawford’ s s hirt . In a post-arr est police interv iew, which was recorded an d playe d for the j ury, John son adm itted hi s involvement in the crimes against both Crawford and McCaskill. 1. Despite Johns on’s conten tion to th e contrary, the eviden ce as summarizedabove w as suf ficie nt to ena

ble a ra tional t rier of f act to conclud e beyond a reasonable doubt that Johnson was guilty of the crimes of wh ich h e

was convicted. Jackson

v. Virginia , 443 U. S. 307 (99 SC t 2781, 61 L E2d 560) (1979). Johnson as serts th at the State f ailed to prove the

requisit e cau sation

neces sary to sustain each of his felo ny murder conviction s. Specifically, Johnson points to evidence that victim Crawford’s d eath may

have resulted in part from the dec ision of his medic al tea m not to perform

surgery to mitigate his injuries

. As to victim

McCa skill, J ohnson

highligh ts evidence sug gesting th at he rece ived subst andard t reatm ent while in the nursing home. However, even construin g the evidence so as to find tha t these other fa ctors c ontribute d to the victim s’ deaths , the fact remains tha t the viol ent att acks Joh

nson perpe trat ed2 Under the new Ge orgia Evi dence Code , effe ctive for trials h eldon or after January 1, 201 3, this lan guage is n ow codified at OCGA § 24-8-8 24. 5 against both victims c onstitute d the proxima te ca use of both of th eir deaths. See Davis v. State , 290 Ga. 757, 760 (4) (725 SE2d 280) (2012) (proximate

causa tion establ ished by

evidenc e that underly ing felony “‘ dire ctly a

nd materially

contribut ed to the

happening of a subs eque nt acc ruing immediate

cause of the de ath’”) ; see also Larkin v. State , 247 Ga. 586 (1) (278 SE 2d 365) (1981) (knife a

ttack b y defe ndant

was proximate

cause of victi m’s de ath, where victim died from c omplic ations of surgery perform ed on knife

wound); Wilson

v. State , 190 Ga . 824 (2) (10 SE2d 861) (19 40) (assa ult by de fe ndant wa s proximate cause of victim ’s death, where vic tim died nine month s after assault from inf ection that wa s second ary to t

he wounds s ustaine d in the a ssault). 2. Johnson next contends that his confession of involvement in both crimes was improperly ind uced by a “hope of benefit.” See former OCGA § 24- 3-50 (to be a dmissi

ble, a confess ion must ha

ve bee n made

“voluntar

ily, w ithout being induced by another by the slighte st hope of benefit or rem otest fe ar of injury” ). 2 Finding Johns on’s stat eme nt to have been m ade volu

ntarily , the trial3 Jackson v. Denno , 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964). 6 court rejected this argument at a pre-trial Jackson v. Denn o 3 hearing and again when the objectio n was renewed at trial. Under Georgia

law, o nly volunt ary inc rimina ting stat eme nts are admissible against the accused at tr ial, and the State has t he burden of proving the volunt ariness of a conf ession by a preponderan ce of the evidenc e. [Former] O CGA § 24- 3-50 requires that an admissible confes sion

must ha ve bee n made

voluntari ly, wi thout bei

ng induc e d byanother

by the s lightest

hope of be nefi t or rem ot est fe ar of injury. The promise of a benefi t that will rend er a confes sion involunta ryunder [for mer] OCGA § 24-3-50 must relate to the charge or sentence

facing the suspect. (Citat ions and punct

uation om

itted. ) Foster v. State , 283 Ga. 484 , 485 (2) (660 SE2d 5 21) (2008). Whether a statem ent was made voluntarily is to b e determined by asse ssing the totality of th e circumstances. Vergara v. State , 283 Ga. 175 (1) (657 SE 2d 8 63) (2 008). “Wh ere the facts surro unding a p olice interview are undisputed because the recorded interview is part of the appellate record, our review of the tria l court's admissibility ruling is de novo.” Wilson v. State , 293 Ga . 508, 510 ( 2) (748 SE2d 3 85) (2013). On the day

of his arrest on Se

ptemb er 11, 200 9, Johnson was interviewed byValdosta

policedetec tive Steven Thom pson. The

recording o f the interview4 Miranda v. Arizona , 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 7 reflects that the det ectiv e advis ed Johnson of his Miranda

4 rights, w hich Johnso n then knowingl y and vol untar ily waiv ed, as ref lected o n a sig ned wai ver fo rm. The interview began with De tectiv e Thom pson telling Johnson he wanted to hear his side of the sto ry rega rding several re cent a

ttacks , that h e had already spoken with Corey Singl eton and WillieRowe, and tha

t one of the victims had died. Johnson initially denied any involvement in the at tacks. After J ohnson admitted to owning brass knuckles, Dete ctive T hompson told Johnson that a pair of brass knuckles had been seized from his au nt’s home and th at a victim’s DNA had been found on them; he also fals ely claimed that Johnso n’s DNA was detected on them. Dete ctive Thompson then warne d Johnson not to lie and deny h is presenc e at th e attacks bec ause th ere wa s evide nce hewas there, said he wanted t o he ar Johnson’ s version of event s, and fu rther wa rned: “I c an get u

p and walk out this door a

nd send y our a** to t

he county j ail and change this charge from aggravated a ssault

to a f**ing murder charge.” John son then began backpe daling, first admitting his presence during the attacks, and ultim ately admit ting his parti cipati on and re count ing th e eve nts lea ding to both a ssaults.8

Johnson contends th at

Detective T

hompson’s statements implied that, if Johnson did not con fess, he

would be charged w ith murd er, and tha t su ch an implic ation

amount ed to an imp roper h ope of be nefit, i.e. , the promiseof a lighter punishme

nt if Johnson

did confe ss. We disagre e wi th this characte ri zation

. Dete ctive T hompson’s state ment t

hat Johnson

could be charged with murder was a true state ment t hat em phasize d the gra

vity of t he situati on Johnson faced. See Sosniak v. State , 287 Ga. 279, 2 88-289 (1) (C) (695 SE2d 604) (2010) (officer’s rema rk that prosecutor was “looking at a dea th penalty case ” was me rely a

n explan ation of t

he seri ousness of defenda nt’s situation); Pr eston v. State , 282 Ga . 210, 212 ( 2) (647 SE2d 2 60) (2007) (officer’s state ments regarding penal ties for murde r and fa ct that

charging decisi ons are inf

ormed by rec omme

ndations f rom policedid not

offer “hop e of benefit” but rather mere lyex plaine d the se riousness of defe ndant’s situation)

. The admoni tion not to l ie wa s not improper, a s it is well establi shed that exhorta tions to tell

the truth do not

constit ute thegiving of a

hope of benefit that renders a confession i nvolunt ary. Mangrum v. State , 285 Ga. 676 (2) (681 SE2 d 130) (2009); State v. Roberts , 273 Ga . 514 (3) (54 3 SE2d 725) (2 001), overruled on other grou

nds by Vergara v. State , 283 Ga . 175 (1) (65 7 SE2d 863)9

(2010). At no time did Dete ctive Thompson indicate that a confession would result in lesser charge s; rather , he m erely suggeste d that Joh

nson would be

well served by offering h is versi on of eve nts as a mea ns of justif

ying or m itigating his role in t

he assaul ts. See Pittman v. State , 277 Ga . 475 (2) (59 2 SE2d 72) (2004) (officer’s suggestions that defendant had not intended to kill victim did not offer im proper hope

of benef it). Cf

. Canty v. State , 286 Ga. 608 (690 SE2d 609) (2010) (con fession w as induc ed by im prop er hope of benef

it wher e defenda ntconfessed on ly after being to ld that admitting to multiple charges at

once could result in

a shorter senten ce). Finally, the detective’s fals e claim that J ohnson’s DNA was found on the brass knuckles does not affe ct t h e admissibility

of the c onfession , as de ceptio n by interrogatin g officers does not render a confess ion involunt ary unl ess it i s “calc ulated to procure

an untrue statement.” (Citation and punctuation omitte d.) DeYoung v. State , 268 Ga. 780, 789 (8) (493 SE 2d 157) ( 1997). We the reforeconclud e that Johnson’s statement w as voluntarily given and properly a dmitted at trial

. 3. John son next c ontends th at his tr ial cou nsel re ndered ineffec tive assistance. To esta

blish ine ffective assi stance of counse l, a de fendant

must showthat his trial c ounsel’s performance was professio nally deficient and that10

but for such defici ent per forma nce there is a

reasona ble proba bility t hat the result of the trial wou ld have been dif ferent. Strickla

ndv. Washington , 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State , 286 Ga . 355 (3) (689 SE2d 2 80) (2010). To prove defici ent per forma nce, o ne mus t show that his atto rney “performe d at tria l in an o bjecti vely unreasonab le way conside ring all the cir cumstances and in th e light of pr evailing pro fessional norms.” Romer v. State , 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). Courts review ing ineffectiveness clai ms must apply a strong pres umption that counsel’ s conduct fell within thewide ra nge of reasona ble profe ssional p erform ance. Id. Thus, decisi ons r egardi ng tr ial tacti cs and s trateg y may form t he basis for an ineffecti veness claim

only if t

hey were so pa

tently unreaso nable t

hat no

c ompet ent

attorney would have followed s uch a course. Id. If the defendan t fails to satis fy eit

her the“defic ient pe rforma nce” or the “prejud ice” prong of the Stri ckl and

test, this Cour t is not requ ired to examine the ot her. See Green v. State , 291 Ga . 579 (2) (73 1 SE2d 359) (2 012). At the new trial he aring, Johnson ’s trial coun sel testifi ed that the def ense strate gygoing in to trial was for Johnson to take the stand and testify that h e had been at hom e when the crimes w ere c ommi tted, t hat he k new the detail s of the11

crimes only from

having he ard about

them from

friends, and

that his confess ion

was coerc ed out

o f fear. Counsel

testifi ed that

he had nu

merous discussi ons with Johnson about this strategy and prep ared him extensively fo r his trial testimony. At trial, ho wever, once the prosecu tion had pr esented its case, Johnson was too shaken and nervou s to testify, and thus, un expectedly, elected not to testi fy. Johnson now faults trial counsel for various alle ged shortcomings. First, he cites the fai lure to present a ny witne sses on Joh

nson’ s behalf, includ ing an all eged alibi witness. Th e testimony from the new tr ial hearing reflects that

counse l made reasonable attempts, witho ut success, to lo cate the unnamed alleged alibi w itness. In additi on, counsel had intended and was prepare d to call Johnson’s sisters as character witnes ses, a s well a s Johnson’s aunt. H owever , when Johnson opte d not to te stify, counsel decide d not to ca

ll any witness es, believ ing chara cter w itnesse s wou ld be unhelpful and fearing possible inconsist encies in the a

unt’s testimony. Insof

ar as couns el’s c onduct re garding these issues was diligent a nd his decisi ons were

reasona ble in li ght of the circum stance s, Johnson

has failed to sh ow deficient perf ormance in this re gard. Johnson next contend s that trial coun sel rendered ineffective assista nce in12

failing to object when o ne of the det ectives on the case testifie d to statements made by Johnson’ s aunt c onfirming that Jo hnson had be en l iving at her h ome and sleeping on the so fa

wherethe bra ss knuckle s werefound. Ev en assum ing arguendo that the

failure to objec t consti tuted de ficie nt perform ance, Johnson cannot establish pr ejudice, insof ar as the officer testi fied that, when he arriv ed at the aunt’s ho use, he saw John son sittin g on the s ofa befo re Johnson, upon seeing the office r, exit ed through t he rea r of the ho use and f

led. B ecaus e there

was admis sible e vidence establ ishing Johnso n’ s prese nc e in the room of his aunt’s home w

here th e brass knuckle s and sh oes linked with the crim es were found, the hea

rsay te stimony

on this point was cumulative and its admission did not in reasonable probability affe ct the outcome of the trial. Johnson also faults tr ial counsel fo r failing to el icittestimony rega rding the size of

the shoe s found at J ohnson’s au nt’s house , in furth eranc e of a t heory that the shoes fou nd would n ot have fit Jo hnson’s feet an d thus wer e not his. Counsel testifi ed that

he had intended

to explor e this th eory w hen Johnson testifi ed; did not want to “tip off”the Sta te to thi s aspec t of

the def ense dur ing its case -in-chie f; and wa s then prevented from pursui ng this def ense when Jo hnsondecide d not to te stify. We find t hat coun sel’s st

rategy in this r egar d13

was reasona

ble; furt her, e ven with

evidenc e that the shoes didnot fit John son, the fac t that t

he shoes were in Johns on’s posses sion nonetheless linked him to the crimes, and thus, partic ularly in light of

all the other inculp atory evidence, there was no preju dice from the failur e to elicit this p articular evidence. We find n o deficient performa nce or prejudice in counsel’s fa ilure to retain an expert witness on false confess ions, given counsel’s in tended strate gy of calling John son himself to testify t ha t he wa s coerc ed into c onfessing , and Johnson’s failure to make any prof fer as to what testimony such an expert might have given. L ikewise , there was no deficiency or p rejudice in counse l’s fail ure to adduce e xpe rt testimony regard ing the cause of d eath of either vict im; as Johnson’s counsel

ackno wledge d at the motion fo r new trial hearing , trial counsel conduct ed a thorough cross-e xamin ation of b oth me dical e xamin ers regarding the possi

ble ca uses of de ath of

each victim , focusing on the de cision not to perfor m surgery on Craw ford and

the substandard treatm ent rendered to McCaskill at

the nursing homeas fac tors in the deaths. In addition, contrary to Johnson’s content

ion, coun sel did no t rende r ineffe ctiveassistance in failing to request a spec ific jur

y instruc tion on the

require d nexus be tween

a defendant’s act and the victim’s dea

th; counsel reasonably bel i e ved that the medical14

examiners’ cross-examinations, together with the tria l court’s charge

on felony murder, were sufficien t to highl ight the iss ue of causation

. 4. Joh nson c ontends, and the State agre es, that the trial court erred in failing to me rge Count

2 (aggravated assault of Cra wford) into Count 1 (fe lony murder predic ated on that ag gravate d assault) and Co unt 5 (armed robber y of McCaskill) into Count 4 (felony murder p redicated on that armed robbery). See S umrall v. State , 264 Ga. 148 (2 ) (442 SE2 d 246) (1 994). Accordi ngly, Johnson’s c onviction s and se ntence s on Counts 2 and 5 m ust be va cate d. Judgme nt affir

med in part an d vaca

ted in pa rt. All the Justi ces c oncur.

Decid ed June 3 0, 2014. Murder. Lowndes Superior C ourt. Be fore Judge Tunison. Anderson & Bradl ey, N ancy L. Anderson , for appellant. J. David Miller, Distric t Attorney, Jessica W. Clark, Tracy

K. Chapm an, Assista ntDistrict Attorneys, Sa muel S. Ol ens, Attorney General, Patr icia B. Attaway Burton, Deputy Attorne y General, Pa

ula K. Smith, Senior A ssistant Attorney General, Meghan H. Hobbs, Assis tant Attorney Gener al , for appellee.