Testimonial Protective-Order Allegations Used for Non-Truth Purposes Do Not Establish Plain Confrontation Error

Mardell v. State, No. S26A0674, Supreme Court of Georgia, decided October 27, 2026. Opinion by Justice Colvin; all Justices concurred.

1. Introduction

Mardell v. State addresses the intersection of the constitutional right of confrontation, allegations contained in a deceased victim’s protective-order petition, and appellate review of defense counsel’s trial choices. Its principal holding is that the testimonial character of an out-of-court statement does not alone make its admission unconstitutional: the Confrontation Clause applies to testimonial hearsay, not testimonial statements used for legitimate purposes other than proving their assertions true.

Alexzandria Mardell was convicted after killing her husband, John Mardell, during a confrontation at their home on December 23, 2019. Earlier that morning, John had obtained an ex parte temporary protective order requiring Mardell to remain at least 300 yards away from him and awarding him exclusive use of their shared residence. Deputies were preparing to serve the order when the fatal encounter occurred.

Mardell maintained that she acted in self-defense against an abusive spouse. The State presented evidence that she struck John with a broken golf-club shaft, fractured his skull with a glass jar, and inflicted 20 sharp-force injuries. The medical examiner identified multiple penetrating torso wounds as the cause of death and described injuries to John’s hands as consistent with defensive wounds. Mardell sustained comparatively limited injuries. Her recorded statements initially expressed concern for John, but an investigator testified that she later said she hoped he was dead.

The jury rejected self-defense and found Mardell guilty of malice murder, felony murder, and aggravated assault. She received life imprisonment without parole for malice murder; the felony-murder conviction was vacated by operation of law, and aggravated assault merged into malice murder. Following denial of her motion for a new trial, she challenged the admission of John’s protective-order allegations, several aspects of counsel’s performance, and the cumulative effect of the alleged errors.

2. Summary of the Opinion

The Supreme Court of Georgia affirmed the judgment on four principal grounds:

  1. No plain Confrontation Clause error. John’s verified protective-order allegations were testimonial, but the record supported their use for non-truth purposes: explaining the deputy’s actions and correcting a misleading impression about what the petition alleged.
  2. No deficient performance concerning the petition. Reasonable strategic grounds supported counsel’s decision not to object and to explore its contents, including portraying John as using legal proceedings to remove Mardell from their home.
  3. No ineffective assistance concerning closing argument or omitted testimony. The prosecutor’s challenged remarks did not constitute a golden-rule argument. Additional testimony that Mardell expressed hope that John was alive would have been cumulative of the body-camera recording already shown to the jury.
  4. No cumulative prejudice. The court found no trial-court error and assumed only one instance of deficient performance, which was not prejudicial. There were therefore no multiple sources of prejudice to aggregate.

Although Mardell invoked both federal and Georgia confrontation guarantees, she did not argue that they should be interpreted differently. The court therefore analyzed only the federal constitutional claim.

3. Precedents Cited and Their Influence

A. The scope of the confrontation right

Smith v. Arizona, 602 US 779 (2024)

The court relied on this decision both for the Sixth Amendment’s confrontation guarantee and for the limiting proposition that its prohibition applies only to testimonial hearsay. This distinction organized the analysis: establishing that John’s allegations were testimonial did not resolve whether their admission violated the Constitution.

Ohio v. Clark, 576 US 237 (2015)

This case established the federal constitutional framework’s applicability to state prosecutions through the Fourteenth Amendment. Its role was foundational rather than fact-specific.

Davis v. Washington, 547 US 813 (2006), and Crawford v. Washington, 541 US 36 (2004)

These decisions supplied the general prohibition against admitting an absent witness’s testimonial statements unless the witness is unavailable and the accused previously had an opportunity for cross-examination. The court also relied on Crawford v. Washington for the qualification that testimonial statements may be used for purposes other than establishing the truth of their assertions.

Tennessee v. Street, 471 US 409 (1985)

Cited through Crawford v. Washington, this precedent supported the distinction between using an out-of-court statement as proof of its contents and using it for another evidentiary purpose. That distinction was decisive in rejecting Mardell’s confrontation claim.

Gines v. State, 324 Ga. 46 (2026)

This Georgia decision supplied the two-part formulation used in the opinion: a successful confrontation claim requires both a testimonial statement and hearsay. It described testimonial statements by reference to the primary purpose of establishing evidence usable in a future prosecution.

Ellington v. State, 324 Ga. 335 (2022)

This case explained why the court did not separately interpret Georgia’s confrontation provision. Merely citing both constitutions, without arguing for a different state constitutional construction, did not require an independent state-law analysis.

B. Protective-order petitions and non-hearsay uses

Brown v. State, 288 Ga. 404 (2010), and Miller v. State, 289 Ga. 854 (2011)

These decisions established that statements in verified temporary-protective-order petitions can be testimonial. John swore that his allegations were true and submitted them to a judge to secure relief removing Mardell from the home. Applying these precedents, the court characterized his statements as “quintessentially testimonial.”

Their significance is also limiting: recognizing a protective-order petition as testimonial does not answer whether its particular use at trial constitutes hearsay.

Carter v. State, 302 Ga. 200 (2017)

This was the central Georgia authority on the second inquiry. It explains that an out-of-court statement is not hearsay when offered for a purpose other than proving the matter asserted. The court relied on it to conclude that a statement’s testimonial nature does not create a confrontation violation when the statement is used for a non-truth purpose.

C. Plain-error review

Denson v. State, 307 Ga. 545 (2019)

This precedent supported plain-error review because Mardell did not preserve a confrontation objection at trial. It also permitted the court to stop its analysis once she failed to establish one necessary component of plain error.

Dennis v. State, 324 Ga. 440 (2026)

This case supplied the requirements emphasized in the opinion: a clear or obvious error, no affirmative waiver, and an effect on substantial rights, meaning a likely effect on the trial’s outcome. Mardell’s claim failed because she did not establish clear or obvious error.

D. Ineffective assistance and objective reasonableness

Strickland v. Washington, 466 US 668 (1984), and Bryant v. State, 324 Ga. 273 (2026)

These decisions supplied the governing two-part test: deficient performance and resulting prejudice. Counsel’s conduct and its effect on the verdict are separate inquiries, and the defendant must establish both.

Rosenau v. State, 321 Ga. 299 (2025)

This case emphasized objective professional reasonableness and the strong presumption that counsel acted reasonably. Mardell had to show that no reasonable lawyer would have made the challenged choices, not merely that a different approach was available.

Scott v. State, 317 Ga. 218 (2023)

This precedent was particularly important because trial counsel initially could not identify a strategic reason for her handling of the petition. Under its objective approach, conduct may be reasonable if a reasonable lawyer could have chosen it, even for reasons different from counsel’s recollection. Here, counsel also acknowledged that the challenged questioning fit the defense strategy.

Evans v. State, 322 Ga. 652 (2025), and Sims v. State, 321 Ga. 627 (2025)

These cases explained prejudice: there must be a reasonable probability of a different result absent counsel’s deficiency, and that probability must be sufficient to undermine confidence in the outcome. This standard governed the omitted-testimony claim.

Cooper v. State, 321 Ga. 349 (2025)

This case permitted the court to resolve an ineffective-assistance claim on either component without deciding the other. Accordingly, the court rejected the first two claims for lack of deficient performance and the final claim for lack of prejudice.

E. Closing argument, cumulative evidence, and combined prejudice

Smith, 323 Ga. at 254

The supplied opinion identifies this authority only by its short-form citation. It defines a golden-rule violation as asking jurors to place themselves in the victim’s position and supports the proposition that failing to make a meritless objection is not deficient performance. The court applied both principles to the prosecutor’s closing argument.

Hulett v. State, 296 Ga. 49 (2014)

This decision supported rejection of the omitted-evidence claim because the proposed testimony was cumulative. The jury already saw and heard Mardell express concern that John survive; another witness recounting a similar expression did not establish prejudice.

State v. Lane, 308 Ga. 10 (2020)

This case requires consideration of the combined prejudicial effect of trial-court errors and counsel’s deficient performance. The court recognized that obligation but found nothing to aggregate beyond the single assumed deficiency already determined not to be prejudicial.

Miranda v. Arizona, 384 US 436 (1966)

This decision appeared in the factual account to identify the warnings given before Investigator Zaj questioned Mardell. The appeal did not present a Miranda issue, and the citation did not drive the court’s holdings.

4. Legal Reasoning

A. The use of a statement matters as much as its character

The court separated two questions that can easily be conflated: whether John’s statements were testimonial and whether they were offered for their truth. The verified petition satisfied the first inquiry. The second required attention to how the evidence entered the trial and why the parties discussed it.

Under OCGA § 24-8-801(c), hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Thus, using John’s allegation to prove that Mardell actually assaulted him would implicate a different evidentiary purpose from using the petition to explain why a deputy was attempting service.

On direct examination, the State introduced the petition, the protective order, and the divorce petition without eliciting the details of John’s accusations. Those documents explained Sergeant Lonkert’s presence near the residence, his attempted service, and the sequence leading to his encounter with Mardell. That contextual function did not require the jury to believe that the alleged prior misconduct occurred.

B. Correcting the description of a petition is not necessarily proving its allegations

Defense counsel first explored the petition’s substantive allegations. She questioned Sergeant Lonkert about accusations involving stolen household property and funds, then obtained his agreement that the petition did not concern recent violence.

On redirect, the prosecutor asked him to read the paragraph alleging that Mardell had kicked in a door and assaulted John in April 2019. The court understood this questioning as correcting a potentially misleading account of the petition’s contents—not establishing that the alleged assault actually happened.

The distinction is between proving that an allegation was made and proving that the alleged event occurred. Because the record supported the former purpose, Mardell did not show that admitting the statements was clearly or obviously erroneous.

Importantly, the decision does not establish a general rule that defense questioning waives confrontation rights or automatically permits testimonial accusations. The court relied on a supported non-hearsay use, not a freestanding exception based on “opening the door.”

C. Plain-error review limits the reach of the holding

Mardell’s failure to object mattered. The appellate inquiry was not simply whether another trial judge might have handled the evidence differently; it was whether admission constituted clear or obvious constitutional error. The court repeatedly framed its conclusion in those terms.

Accordingly, the opinion should not be read as categorically authorizing every allegation in every protective-order petition. It establishes that the testimonial nature of such allegations does not itself demonstrate plain confrontation error when the trial record supports legitimate non-truth uses.

D. Counsel’s handling of damaging evidence could serve the defense

The petition contained accusations adverse to Mardell, but counsel could reasonably use it to support the broader account of an abusive relationship. Its emphasis on property disputes, rather than recent physical violence, could suggest that John was using court proceedings to remove his wife from the home.

Exploring the allegations could also prevent jurors from imagining more serious undisclosed misconduct. Although counsel initially did not recall a strategic explanation, she acknowledged that the questioning was consistent with the defense theory. Under the objective standard, these reasonable strategic possibilities defeated the deficient-performance claim.

E. The closing-argument objection lacked the asserted legal basis

The prosecutor described domestic violence as a serious problem, said it needed to end “here, now, today,” and told the jurors they were the only 12 people in Fayette County who could do something about it. Mardell characterized this as a golden-rule argument.

The court applied the narrower definition of that prohibition: asking jurors to place themselves in the victim’s position. The remarks did not do that, so counsel was not deficient for failing to make that objection. The ruling does not decide whether every appeal to community responsibility would withstand other possible objections.

F. Omitted testimony added no materially different expression of concern

Lieutenant Thamert, who did not testify at trial, later recounted that Mardell said, “I hope he isn’t dead.” His report had been disclosed to defense counsel. Mardell argued that this evidence could have supported her defense or countered the testimony that she later hoped John was dead.

The jury, however, had already watched body-camera footage showing Mardell sobbing and saying, “I hope he’s okay.” Whether Thamert recalled that same exchange or a separate similar statement, the proposed evidence repeated a point already presented to the jury. The court therefore assumed, without deciding, deficient performance and rejected the claim for lack of prejudice.

G. Cumulative prejudice requires multiple contributing sources

The court did not reject cumulative-prejudice review as a doctrine. It found that its necessary factual premise was absent: no trial-court error had been established, the first two ineffective-assistance claims failed on performance, and only one deficiency was assumed. There was consequently no combination of prejudicial errors requiring further assessment.

5. Potential Impact and Limits

Protective-order evidence in criminal prosecutions

The opinion reinforces that verified protective-order allegations remain testimonial even though they originate in a civil proceeding. At the same time, their admissibility under the Confrontation Clause depends on their evidentiary use. Future disputes will likely turn on whether the prosecution genuinely uses a petition to explain events or instead asks the jury to accept its accusations as true.

The decision does not transform ex parte allegations into adjudicated facts. Nor does it recognize a general hearsay exception for protective-order petitions. Its confrontation analysis also does not resolve every other possible evidentiary objection.

Preservation and trial presentation

The case illustrates the importance of timely, specific objections. A preserved objection allows the trial court to examine the proposed use directly; an unpreserved claim must overcome plain-error requirements. Counsel should also recognize that questioning about a document’s contents may justify a focused correction of the impression that questioning creates.

A clear record identifying the proposed non-truth purpose can therefore be important. Depending on the circumstances, limiting the scope of the evidence or requesting an appropriate instruction may help distinguish permissible contextual use from substantive reliance. The opinion does not report a holding requiring such an instruction here.

Ineffective-assistance litigation

The ruling underscores that counsel’s imperfect recollection at a new-trial hearing does not automatically establish unreasonable performance. Courts evaluate the objective reasonableness of the conduct in context. It also demonstrates that omitted evidence must add something materially significant: another version of a point already placed before the jury may not establish a reasonable probability of a different verdict.

No new substantive self-defense rule

Although the underlying facts concern domestic violence and self-defense, the appellate holdings concern confrontation, preservation, counsel’s performance, and prejudice. The decision should not be treated as announcing a new substantive test for justified force.

6. Complex Concepts Simplified

Testimonial statement
A formal statement of the kind covered by the confrontation guarantee. Here, the verified allegations submitted to a judge qualified.
Hearsay
An out-of-court statement used to prove what it asserts. Showing that a petition contained an accusation is different from proving the accusation true.
Ex parte protective order
An order initially issued without the opposing party participating. Here, a later hearing involving both parties was scheduled. The initial order did not make its supporting allegations trial-proven facts.
Plain error
A demanding form of appellate review for an unpreserved claim. A defendant must establish clear or obvious error and satisfy the other applicable requirements.
Deficient performance
Lawyering that falls below objective professional standards—not simply an unsuccessful tactic or a choice another lawyer would have made differently.
Strickland prejudice
A reasonable probability that counsel’s deficiency changed the result, sufficient to undermine confidence in the outcome.
Golden-rule argument
An argument asking jurors to place themselves in the victim’s position, rather than decide the case impartially.
Cumulative evidence and cumulative prejudice
Cumulative evidence repeats an evidentiary point already presented. Cumulative prejudice concerns the combined harmful effect of multiple errors. The concepts address different questions.

7. Conclusion

Mardell v. State clarifies that testimonial protective-order allegations do not establish a Confrontation Clause violation merely because the declarant cannot be cross-examined. Their purpose at trial remains decisive. Here, supported non-truth uses defeated plain-error review.

The decision also reinforces objective review of counsel’s strategic choices, the need to demonstrate meaningful prejudice from omitted evidence, and the requirement of multiple contributing errors before cumulative prejudice can arise. Its significance lies in applying established constitutional principles to the particular evidentiary uses of a protective-order petition—not in broadly authorizing such petitions as proof of prior misconduct.