NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 6, 2025
S25A0215. DENNY v. THE STATE.
MCMILLIAN, Justice.
Appellant Ashton Denny, Jr. was convicted of malice murder
and other charges after he shot his half-brother Kevin Rowe in the
back, killing him. 1 On appeal, Denny argues that his trial counsel
rendered ineffective assistance by failing to object to the admission
1 Rowe died on May 28, 2020. On July 8, 2021, a Rockdale County grand
jury indicted Denny for malice murder (Count 1), felony murder (Count 2),
aggravated assault (Count 3), and possession of a firearm during the
commission of a crime (Count 4). At a trial from May 23 through May 24, 2023,
the jury found Denny guilty of all counts. On July 10, 2023, the trial court
sentenced Denny to life in prison without the possibility of parole for malice
murder, plus five years to serve consecutively for the firearm count; the
aggravated assault count merged for sentencing purposes, and the felony
murder count was vacated by operation of law.
Denny filed a timely motion for new trial on August 8, 2023, which was
amended by new counsel. Following a hearing on June 26, 2024, the trial court
denied Denny’s motion for new trial, as amended, on August 6, 2024. Denny
filed a timely notice of appeal on August 19, 2024, and the case was docketed
to the term of this Court beginning in December 2024 and thereafter submitted
for a decision on the briefs.
of the murder weapon and certain other evidence obtained from his
vehicle and the scene of the crime and by failing to tender for
admission a certain gunshot residue report. For the reasons that
follow, we affirm.
1. The evidence presented at trial showed that Denny lived
with his mother and several other family members in Conyers,
Georgia. On the afternoon of May 28, 2020, Denny got into an
argument with Rowe at the house over a family matter, after which
Rowe and other family members left to “bond and relax” at Rowe’s
house while Denny stayed behind. Rowe and the family returned
later that night and continued “laughing,” “having fun,” and
“enjoying each other’s company”; Denny interacted very little with
the family. After a while, Rowe stepped outside. Denny exited
“shortly after.” The rest of the family, who had remained inside,
heard a “loud bang” and then banging on the door and Rowe calling
for help. When they opened the door, they saw Rowe standing on
the other side, holding his stomach, and saying “he shot me, he shot
me,” before collapsing. Denny, who was the only other person
2
outside, immediately “pull[ed] off” in his Jeep.
Family members called 911 and applied pressure to Rowe’s
wound. First responders arrived, an ambulance rushed Rowe away,
and law enforcement officials conducted their investigation, which
included taping off the area to secure it and interviewing the family
members, who said that Denny had shot Rowe and then fled in his
Jeep. At 12:02 a.m., as family members were preparing to leave for
the hospital,2 Denny returned in his Jeep, saying “what happened .
. . it wasn’t me,” and that he left to “go[ ] after” the people who shot
Rowe. His family was “very angry” and screaming, “you did it, you
did it,” and they yelled to the police who were still at the house,
“that’s him, that’s him.” Officers immediately apprehended Denny
from his Jeep in the road in front of the house. After Denny’s arrest,3
2 Unbeknownst to the family at the time, Rowe was pronounced dead on
the way to the hospital. The medical examiner who performed Rowe’s autopsy
determined that he died from a single gunshot to the back, with the bullet
exiting his stomach.
3 Denny was swabbed for gunshot residue, but the Georgia Bureau of
Investigation was not able to perform the test because the test kit sent to them
did not contain the “control strip.” A gunshot residue test kit usually contains
a “control and a sample that you take from the swab or whatever you take from
3
the lieutenant who oversaw the criminal investigations division
arrived. By the time he arrived, “the crime scene tape was up,
rop[ing] off the curtilage of the home [ ], and there was a black Jeep
Liberty parked in the yard,” and “first thing,” he instructed one of
his investigators “to go obtain a search warrant so we could search
the property inside and outside the home, as well as the Jeep Liberty
that was parked in the – in the yard.”4
Officers got the search warrant signed at 3:15 a.m. and
executed it at 3:30 a.m. They discovered a loaded 9mm pistol in
the suspect,” but the kit sent to the Georgia Bureau of Investigation only
contained the sample from Denny. At trial, the evidence technician testified
that he did not remember collecting a gunshot residue kit in the case but that
“[s]omeone could [have], yes.”
4 On cross-examination, when asked how the Jeep had gotten to the yard
from the street in front of the house where it was when Denny was arrested,
the lieutenant responded, “I could only speculate. . . . I don’t know. I couldn’t
give you a definitive answer.” On redirect, he explained that per policy, in a
situation where a vehicle suspected to be involved in a crime was left in the
road, his deputies “would move it off the street and at least allow any other
emergency service vehicles to go by or persons that live within the
neighborhood.” On recross, he confirmed that the “standard operating
procedure” would be that if the vehicle “was obstructing the roadway it would
be moved” by “a deputy or somebody from [his] department.” The investigator
who served as evidence technician for the case testified that he did “not recall”
if someone from the sheriff’s department moved the Jeep.
4
Denny’s Jeep, along with a holster and loaded magazines. A
firearms trace confirmed that Denny purchased the 9mm pistol
found in his Jeep less than two weeks earlier. The box and receipt
for the gun were also recovered from Denny’s room. Officers also
found a spent 9mm casing on the ground near the front door, and
they recovered a bullet that was lodged in the door. 5 A GBI firearms
analyst confirmed that the casing could have been fired from
Denny’s 9mm firearm and that the bullet was fired from it.
2. Denny contends that his trial counsel rendered
5 Officers seized the door itself on June 5, a week after the murder, and
retrieved the bullet from it at that time. On cross-examination, when asked
why he would leave a “critical piece of evidence there for six or seven days
before you collected it?” the evidence technician responded, “I can’t recall why
we had to leave the door,” but “[t]he physical sight of the door did not change
from the photographs that I took on that day” and it did not appear that “the
hole the bullet had gone in had been manipulated in any way.” The
investigator who seized the door testified that it was collected days later
“[b]ecause I had to get permission from the family so I could get that door and
replace that door with a new door,” and because “I have to get permission to
use the [County’s] P-card to make a purchase,” and it was not “policy to leave
a murder scene unsecure without a door for multiple days.” The door was
admitted into evidence at Denny’s trial with the bullet removed by law
enforcement but otherwise “in the same condition as found by the Sheriff’s
Office.” The State also had photographs of the door admitted into evidence,
which the investigator testified were a fair and accurate depiction of the front
door as officers found it on the night of Rowe’s murder.
5
constitutionally ineffective assistance by (a) failing to object to the
admission of the murder weapon and all other evidence obtained
from Denny’s Jeep, (b) failing to object to the admission of the door,
and (c) failing to tender for admission a gunshot residue report. For
the reasons discussed below, these claims fail.
To succeed on a claim of ineffective assistance of counsel,
Denny must show both that his counsel’s performance was deficient
and that such deficiency prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To satisfy the deficiency prong, Denny must demonstrate
that his counsel “performed at trial in an objectively unreasonable
way considering all the circumstances and in the light of prevailing
professional norms.” Bacon v. State, 316 Ga. 234, 239 (3) (887 SE2d
263) (2023) (citation and punctuation omitted). To establish
prejudice, Denny “must prove that there is a reasonable probability
that, but for his trial counsel’s deficiency, the result of the trial
would have been different.” Bates v. State, 313 Ga. 57, 62 (2) (867
SE2d 140) (2022). And if Denny fails to make a sufficient showing
6
on either the deficiency or the prejudice prong, we need not address
the other prong. See Washington v. State, 313 Ga. 771, 773 (3) (873
SE2d 132) (2022).
(a) Evidence seized from Denny’s Jeep. Denny argues that his
trial counsel rendered ineffective assistance in not objecting to the
admission of the murder weapon and other evidence seized from his
Jeep on the ground that the Jeep was “not secured by law
enforcement,” and the State “did not establish a reliable chain of
custody,” considering that investigators did not know how Denny’s
Jeep was moved from the street at the time of his arrest to the yard
at the time it was searched. Denny argues that there is no assurance
that the items found in the Jeep were not placed there during that
time period. The only authority Denny cites in arguing this—and
his second—ineffective assistance claim is Rhodes v. State, 319 Ga.
App. 684, 688 (3) (a) (738 SE2d 135) (2013), for the general principle
that “[t]o show a chain of custody adequate to preserve the identity
of fungible evidence, the State must prove with reasonable certainty
that the evidence is the same as that seized and that there has been
7
no tampering or substitution.” Id. at 688 (3) (a) (citation and
punctuation omitted).
We note at the outset that to the extent Denny articulates
“chain of custody” as the ground upon which he contends trial
counsel should have based his proposed objection, his argument is
not that there was any problem with the chain of custody of the
items after they were seized from his Jeep. Instead, Denny’s
argument is that the Jeep itself was not secured and monitored by
law enforcement between the time of his arrest just after midnight
and the time the Jeep was searched at 3:30 a.m., so as to provide
assurance that the items seized from the Jeep were not planted
there during that interim, and that counsel should have objected to
the items recovered from the Jeep on that basis.
Denny has not shown that trial counsel was deficient in failing
to lodge such an objection because he has not shown that it would
have succeeded. Denny speculates that evidence may have been
planted in his Jeep during the period when, according to him, it was
inexplicably moved from the road to the yard. But Denny proffers
8
no evidence whatsoever supporting this speculation or indicating
that the murder weapon and ammunition were planted in his Jeep.
To the contrary, there was testimony that it was standard operating
procedure for officers to move suspect vehicles out of roadways to
allow emergency vehicles and other traffic to pass and that Denny’s
Jeep had already been moved into the yard shortly after his arrest
and the area was secured with crime-scene tape. There was also
evidence that Denny in fact was the registered owner of the 9mm
seized from his Jeep, and the receipt and box for the gun were found
in his room.
We have held that when, as here, there is no evidence of
tampering, mere speculation about the possible mishandling of
evidence generally does not require the exclusion of evidence. See
Lewis v. State, 306 Ga. 455, 460 (1) (b) (831 SE2d 771) (2019);
Armstrong v. State, 274 Ga. 771, 772-73 (2) (560 SE2d 643) (2002).
Instead, that argument goes to the weight of the evidence, and is for
the jury to resolve. See id; see also McDowell v. State, 309 Ga. 504,
506-08 (2) (847 SE2d 309) (2020) (opining that aside from being
9
“generally misplaced,” appellant’s chain of custody argument for the
suppression of evidence still had no merit because evidentiary
authentication requirements were satisfied, meaning “the ultimate
question of authenticity is decided by the jury,” and appellant’s
“contentions about chain of custody [went] to the weight of the
evidence, not its admissibility”) (punctuation and citation omitted).
Given the foregoing, Denny’s proposed objection to the admission of
the evidence would have been fruitless, though Denny was still free
to highlight the issue regarding the Jeep’s movement before the jury
to raise doubts about the weight the jurors should afford the
evidence; trial counsel did precisely that. Because trial counsel was
not deficient for failing to make a fruitless objection, this claim fails.
See Hill v. State, 310 Ga. 180, 192-93 (8) (b) (850 SE2d 110) (2020)
(failure of counsel to assist in way that “would have been fruitless .
. . . did not constitute deficient performance”); White v. State, 283
Ga. 566, 570 (4) (662 SE2d 131) (2008) (rejecting ineffectiveness
claim based on counsel’s failure to make a chain of custody objection
because “any such objection would have been fruitless”).
10
(b) The door. Denny next argues that because the door was
not collected until a week after the shooting—a period during which
the door was accessible to anyone while police had no control over it
or knowledge about whether it had been tampered with—trial
counsel also rendered ineffective assistance in failing to object to its
admission on similar chain of custody grounds. This claim also fails.
Chain of custody requirements do not apply to the period of
time before police actually seize evidence and take it into custody.
See Armstrong, 274 Ga. at 772-73 (2). Labeling aside, Denny’s
argument comes down to his assertion that trial counsel rendered
ineffective assistance by failing to object to the admission of the
physical door at trial on the ground that the State failed to establish
that it had not been tampered with between the beginning of the
investigation and its seizure a week later. But, similar to Denny’s
first ineffectiveness claim, he proffers no evidence whatsoever to
even suggest that the evidence—here, the door—was tampered with
in any way, and law enforcement’s testimony at trial not only
provided a reason for why the door was not taken immediately but
11
also confirmed that the door did not appear to have been tampered
with. See OCGA § 24-9-901; McDowell, 309 Ga. at 506-08 (2); Lewis,
306 Ga. at 460 (1) (b); Armstrong, 274 Ga. at 772-73 (2). Moreover,
trial counsel testified at the motion for new trial hearing that she
did not object to the door coming into evidence because it actually
showed “they didn’t collect it for 5 to 7 days which is bad police work
to begin with,” and it showed something the photos of the door could
not, that “the way [the bullet] went through the door straight was
inconsistent with the way that the bullet entered Mr. Rowe’s body
and came out” at an angle, so she “used it to create doubt.”6
Counsel’s strategic decision to forgo the proposed objection was not
objectively unreasonable, and therefore this claim also fails. See
Pierce v. State, 319 Ga. 846, 867-68 (11) (b) (907 SE2d 281) (2024).
(c) The gunshot residue report. At the hearing on Denny’s
motion for new trial, his trial counsel acknowledged that during
discovery, she received a Georgia Bureau of Investigation gunshot
6 Trial counsel used the physical door during closing to argue to the jury
that it showed the bullet’s angle of trajectory did not match the State’s theory.
12
residue report stating that “the control adhesive was not present
and they could not do the test.” Denny argues on appeal that
because the gunshot residue report showed that police “botched” the
gunshot residue collection, that report would have suggested to the
jury that any other aspect of the law enforcement investigation may
have been done incompetently as well, and trial counsel rendered
ineffective assistance in failing to tender the report into evidence.
Pretermitting whether trial counsel performed deficiently in
that respect, Denny has not carried his burden of establishing a
reasonable probability that had his trial counsel tendered the report
into evidence, the result of Denny’s trial would have been different.
Because the report did not contain any actual test results
exculpating Denny, its usefulness at trial would have been limited
to Denny’s conjecture that its mention of a lack of a control sample
preventing testing suggested that other aspects of law enforcement’s
investigation may have been questionable. While this argument
could have been made, it is not reasonably probable that such
speculation would have resulted in a different outcome here given
13
the strong evidence of Denny’s guilt, which included that Denny
argued with Rowe earlier on the day of the murder; Denny was the
only person known to be outside with Rowe at the time Rowe was
shot; Denny immediately drove away from the scene after the
shooting; multiple members of Denny’s own family told police that
he was the shooter; the murder weapon belonged to Denny; and the
murder weapon was found in Denny’s Jeep after his arrest. See
McCoy v. State, 303 Ga. 141, 143 (2) (810 SE2d 487) (2018) (trial
counsel’s failure to impeach witness with particular information
about factual inconsistencies did not result in prejudice where the
information had only “marginal” value, trial counsel otherwise
“explored” the factual inconsistencies before the jury, and the
evidence of guilt was “strong”); Baker v. State, 293 Ga. 811, 815 (3)
(750 SE2d 137) (2013) (to show Strickland prejudice, appellant “was
required to offer more than mere speculation that, absent the
counsel’s alleged errors, a different result probably would have
occurred at trial”) (citation and punctuation omitted). Accordingly,
Denny has not carried his burden of showing prejudice under
14
Strickland, and Denny’s final ineffectiveness claim also fails.
Judgment affirmed. Peterson, CJ, Warren, PJ, and Bethel,
Ellington, LaGrua, Colvin, and Pinson, JJ, concur.
15