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: December 10, 2024
S24A1096. SHARKEY v. THE STATE.
COLVIN, Justice.
Appellant John Deangelo Sharkey appeals following his
convictions for malice murder and armed robbery in connection with
the shooting death of Dominique Barker.1 On appeal, Appellant
challenges the constitutional sufficiency of the evidence supporting
1 The crimes occurred on December 6, 2017. On February 8, 2018, a
Clayton County grand jury indicted Appellant for malice murder (Count 1),
aggravated assault (Count 2), felony murder (Count 3), and armed robbery
(Count 4). A jury trial was held from January 13 to 16, 2020. The jury found
Appellant guilty of all counts. The trial court sentenced Appellant to life in
prison without the possibility of parole for malice murder (Count 1) plus 20
years consecutive for armed robbery (Count 4). The aggravated-assault count
(Count 2) merged with Count 1 for sentencing purposes, and the felony-murder
count (Count 3) was vacated by operation of law. Appellant timely filed a
motion for new trial on January 21, 2020, and amended the motion through
new counsel on February 23, 2021. On February 29, 2024, following a hearing,
the trial court entered an amended order denying Appellant’s amended motion
for new trial. Appellant filed a timely notice of appeal on March 6, 2024. The
case was docketed to this Court’s August 2024 term and submitted for a
decision on the briefs.
his convictions. He also argues that the trial court abused its
discretion in excluding a video recording that showed a four-yearold child, who was present when the shooting occurred, identifying
a man other than Appellant in a photo lineup. And Appellant
contends that his trial counsel was constitutionally ineffective for
failing to take measures to admit the video recording of the child’s
photo identification under the child-hearsay statute. As explained
below, the trial evidence was more than sufficient to support
Appellant’s convictions. And because there was strong evidence of
Appellant’s guilt, any trial-court error or deficient performance
regarding admission of the video recording was harmless and
nonprejudicial. Accordingly, we affirm Appellant’s convictions.
1. The trial evidence showed the following. Barker’s wife,
Janaille Barker (“Janaille”), testified that, in December 2017, she
and Barker were living in a duplex in College Park with her sister
and several children, including her eight-year-old daughter (J. H.);
her seven-year-old niece (R. W.); Barker’s son (D. B.), who had just
turned four years old; and her six-month-old daughter (F. B.).
2
Janaille testified that Barker “sold weed” to make money, that he
made a substantial amount of money doing so, and that he stored
“weed” and some “money” in the kitchen cabinet.
Gerald Leonard, a close friend of Barker’s, testified that he had
introduced Appellant to Barker, and that the three men had smoked
marijuana together. Leonard said that he knew Appellant through
his housemate, Troyaire Moore, who had been romantically involved
with Appellant. Leonard and Moore testified that Appellant had
lived in their house for a month or two in 2017, but that he moved
out a couple weeks before the shooting. Moore recalled that
Appellant had a firearm when he lived with her. And according to
Moore, her relationship with Appellant ended before he moved out,
and he was “essentially kicked out” of the house because he was
unable to pay rent.
Leonard and Moore testified that Appellant was from St. Louis,
Missouri, and Janaille said that she knew Appellant by the
nickname “St. Louis.” Janaille and Leonard recalled Appellant being
at Barker’s house twice prior to the date of the shooting. And
3
Janaille testified that, during the second visit, which was on
Thanksgiving, Appellant asked Barker how he made so much money
and how Appellant could make money like that.
As to the day of the shooting, the trial evidence showed that
Moore exchanged text messages with Appellant between 10:47 and
10:59 a.m. The text messages showed that Moore contacted
Appellant to ask if he had “moved back” to St. Louis and if he was
“good.” In response, Appellant sent messages to Moore expressing a
belief that someone in her house had stolen his gun, and stating that
he had only gone to St. Louis to report his gun stolen and to buy a
new gun, that he was on his way back, and that he would arrive
around 7:15 p.m. Moore explained at trial that St. Louis, Missouri
was “eight and a half” to “nine hours” away “by car.”
Janaille testified that Barker’s phone records showed that, at
1:27 p.m. on the day of the shooting, Barker’s phone placed a call to
a St. Louis, Missouri phone number, which Moore identified as
Appellant’s. Leonard testified that, later that afternoon, around
2:00, he called Appellant and spoke with him over the phone. And
4
according to Janaille, Barker’s phone records showed that
Appellant’s phone called Barker’s phone at 3:31 p.m.
At some point during the afternoon, J. H. and R. W. came home
from school. J. H. and R. W. testified that, when they got home,
Barker, D. B., and F. B. were in the living room of the duplex. The
girls said that Barker was playing a video game, D. B. was watching
TV or using a tablet, and F. B. was asleep on the couch. And J. H.
and R. W. further said that they went together into one of the
bedrooms to play games on their phones.
According to J. H. and R. W., while they were playing games in
the bedroom, they heard a “big boom,” and they briefly hid under the
covers before going out into the living room to see what happened.
J. H. and R. W. recalled that, when they got to the living room, they
saw D. B. and F. B. still on the couch, Barker lying on the kitchen
floor, and a man holding a gun in the kitchen. 2 And both girls
testified that J. H. called Barker’s name, but that he did not
respond.
2 According to J. H., D. B. was still playing on his tablet.
5
Neither J. H. nor R. W. recalled ever having seen the man who
had the gun before, but they described him as having dreadlocks,
and J. H. further testified that the dreadlocks were short and goldtipped. The girls testified that they saw the man “grabbing stuff”
from the kitchen cabinets. Elaborating on the point, J. H. said that
he took a “big glass jar with . . . green stuff in it,” and R. W. said that
he took “some money.” J. H. further testified that she asked the man
if Barker was “gonna be okay,” and the man responded, “yeah.”
Then, according to the girls, the man left the house and ran down
the street. After the man left, J. H. and R. W. ran to the house of
their next-door neighbor, Mesteeniquette Mickles, and told her what
had happened.
Mickles testified that she heard gunshots while inside her
house, and shortly thereafter she ran to her front door, where she
found J. H. and R. W. According to Mickles, she then went inside the
girls’ duplex, where she saw D. B. sitting on the couch and Barker
6
lying on the kitchen floor.3 Mickles said that, after seeing blood
around Barker’s head, she took the children out of the house and
called 911 to report that Barker had been shot.
Officers were called to the crime scene at 3:52 p.m. and arrived
minutes later. Responding officers testified that they could smell
marijuana upon entry to Barker’s duplex, and that a “trail[ ]” of
marijuana “crumbs” and “buds” led from the living room to the
kitchen. In the kitchen, officers observed glass jars containing
marijuana inside an open cabinet, marijuana scattered across the
stove, countertops, and floor, and Barker lying on his back on the
floor with a pool of blood under his head. On the kitchen counter,
officers also found a cell phone, which they later determined had a
phone number matching Appellant’s.
Leonard testified that, shortly after the shooting, he learned
that Barker had been shot. And he said that he tried to contact
Appellant later that night, but, when he called Appellant’s phone,
3 When asked if D. B. appeared to know what was going on, Mickles
responded, “No.”
7
he got a message that Appellant’s phone number was “no longer in
service.”
A medical examiner testified that Barker died from two
gunshot wounds to the head, one to the face and the other to the
back of the head. And she concluded that Barker was shot in the face
from a distance of no more than “a couple of feet,” based on the
presence of stippling and the absence of soot near the entry wound.
Six days after the shooting, a detective separately presented
J. H. and R. W. with photo lineups containing six pictures of men
with dreadlocks. Janaille, who was present for the photo lineups,
testified that, although the police had not told her the identities of
the people in the lineup, she recognized Appellant in the lineup and
knew who he was. And J. H.’s and R. W.’s photo-lineup
identifications, as well as the video recordings of their
identifications, showed that both girls identified Appellant as the
man who had been in their house with a gun when Barker was shot.
Appellant was arrested in St. Louis the next day.
2. Appellant contends that the trial evidence was
8
constitutionally insufficient to support his convictions for malice
murder and armed robbery. We disagree. As explained below, the
evidence of Appellant’s guilt was not just sufficient but strong.
“Evidence is sufficient as a matter of constitutional due process
if a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Pierce v. State, 2024 WL 4350982, __
Ga. __, __ (2) (__ SE2d __) (2024) (citation and punctuation omitted).
“When reviewing the sufficiency of the evidence, we view the
evidence in the light most favorable to the verdict, with deference to
the jury’s assessment of the weight and credibility of the evidence.”
Id. (citation and punctuation omitted).
Here, the trial evidence was sufficient to support Appellant’s
convictions for malice murder and armed robbery. As to the identity
of the shooter, the evidence was strong. Both J. H. and R. W.
identified Appellant as the man they saw standing with a gun over
Barker’s body and taking items from the kitchen cabinets. See Scott
v. State, 309 Ga. 764, 765-766 (1) (848 SE2d 448) (2020) (sufficient
evidence of malice murder where an eyewitness identified the
9
defendant in a photo lineup and at trial as the man who came to a
drug dealer’s house, shot the drug dealer, and then searched the
drug dealer’s cabinets). And Appellant’s cell phone, which had been
used to communicate with Moore and Leonard earlier in the day and
had called the victim’s phone minutes before the shooting, was also
found at the crime scene. See Brown v. State, 291 Ga. 892, 894 (1)
(734 SE2d 23) (2012) (sufficient evidence of malice murder where,
among other things, “phone records show[ed] that [the defendant]
and the victim were communicating prior to the shooting and that
[the defendant] was in the vicinity of the hotel [where the shooting
occurred] during that time,” and “a note found in the victim’s
apartment bore [the defendant’s] name”); Clemons v. State, 288 Ga.
445, 445 (1) (704 SE2d 762) (2011) (sufficient evidence of malice
murder where, among other things, letters addressed to the
defendant were found near the victim’s body), overruled on other
grounds by Pounds v. State, 309 Ga. 376 (846 SE2d 48) (2020).
As to the malice-murder count, the trial evidence strongly
supported a finding that Appellant deliberately killed Barker. See
10
OCGA § 16-5-1 (a) (“A person commits the offense of [malice] murder
when he unlawfully and with malice aforethought . . . causes the
death of another human being.”); OCGA § 16-5-1 (b) (“Express
malice is that deliberate intention unlawfully to take the life of
another human being . . . .”). The medical examiner testified that the
victim was shot in both the front and the back of the head, and that
the gunshot to the front of the head was fired from close range. See
Pierce, 2024 WL 4350982, __ Ga. at __ (2) (sufficient evidence of
malice murder where the victim was “shot through the back of his
neck from near contact range” (punctuation omitted)). And
Appellant’s text-message exchange with Moore during the morning
of the shooting, in which he claimed that his gun had been stolen
and that he was currently in St. Louis, Missouri, supported an
inference that Appellant planned to use his gun to commit murder.
Specifically, the jury could have reasonably inferred that Appellant’s
text messages represented an attempt to fabricate an alibi in
advance of the robbery because the same phone Appellant used to
text Moore was present at the crime scene less than five hours later,
11
and the evidence showed that it would have taken Appellant more
than eight hours to drive to College Park if he had in fact been in St.
Louis, Missouri when he texted Moore. Cf. Somchith v. State, 272
Ga. 261, 262 (1) (527 SE2d 546) (2000) (sufficient evidence of malice
murder where, among other things, the defendant lied about being
armed before the shooting).
In addition, the trial evidence authorized the jury to find that
Appellant was conscious of his guilt, and therefore guilty of malice
murder. Specifically, J. H. and R. W. testified that Appellant quickly
fled the scene after falsely telling the girls that the victim would be
all right. See Maynor v. State, 317 Ga. 492, 497 (2) (a) (893 SE2d
724) (2023) (“Appellant fled the immediate area, from which the jury
could infer consciousness of guilt, and thus guilt itself.” (citation and
punctuation omitted)); Wise v. State, 292 Ga. 447, 448-449 (1) (738
SE2d 580) (2013) (sufficient evidence of malice murder where,
among other things, the defendant lied to the victim’s neighbors
about the victim before fleeing the scene). And although Appellant’s
cell phone had service earlier in the day and had been used to
12
communicate with Moore, Leonard, and Barker, Leonard testified
that Appellant’s phone service was disconnected by the time he
called Appellant again that evening. See Ford v. State, 319 Ga. 215,
217 (1) (903 SE2d 1) (2024) (noting that the evidence showed a
consciousness of guilt because the defendant had frequent contact
with the victim’s friend before the killing but stopped responding to
the friend and blocked him on social media after the killing);
Nunnally v. State, __ Ga. __, __ (2) (a) (905 SE2d 550) (2024)
(sufficient evidence of malice murder where, among other things, the
defendant “attempted to delete call logs with [the victim] from his
phone to conceal his guilt”).
The trial evidence also strongly supported a jury finding that
Appellant committed armed robbery. See OCGA § 16-8-41 (a) (“A
person commits the offense of armed robbery when, with intent to
commit theft, he or she takes property of another from the person or
the immediate presence of another by use of an offensive weapon
. . . .”). The evidence showed that Barker was shot twice in the head,
and J. H. and R. W. testified that, while Appellant was holding a
13
gun and Barker was lying unresponsive on the kitchen floor,
Appellant took “money” and a jar containing “green stuff,” which the
evidence showed was marijuana, from the kitchen cabinet. See
Benton v. State, 305 Ga. 242, 245 (1) (b) (824 SE2d 322) (2019)
(“Where, as here, the evidence is sufficient to authorize a finding
that the theft was completed after force was employed against the
victim, a conviction for armed robbery is authorized.” (citation and
punctuation omitted; emphasis supplied)). “Although the State was
not required to prove motive,” the evidence also supported a finding
that Appellant had a motive to commit the armed robbery because
Appellant was known to use marijuana, was unable to pay rent,
knew Barker had large sums of money, and had previously
expressed a desire to be as wealthy as Barker. Hall v. State, 308 Ga.
475, 478 (841 SE2d 672) (2020). And the evidence discussed above,
which showed that Appellant planned in advance to use his firearm
to commit a crime and that he was conscious of his guilt after the
fact, also supported a guilty verdict as to armed robbery.
Accordingly, this claim fails.
14
3. Appellant argues that the trial court abused its discretion in
excluding a video recording that showed four-year-old D. B.
identifying the photo of a man other than Appellant during a photo
lineup. And relatedly, Appellant contends that his trial counsel was
constitutionally ineffective because counsel failed to take steps to
admit the video recording of D. B.’s photo-lineup identification
under Georgia’s child-hearsay statute.4 Specifically, Appellant
argues that trial counsel was deficient because he failed to file a
pretrial notice and to subpoena D. B. to testify at trial. We conclude,
however, that any trial-court error was harmless and any deficient
performance was nonprejudicial.
“Erroneous evidentiary rulings are subject to a harmless-error
4 In relevant part, Georgia’s child-hearsay statute provides:
A statement made by a child younger than 16 years of age
describing any act of . . . physical abuse performed . . . on another
in the presence of such child shall be admissible in evidence by the
testimony of the person to whom made if the proponent of such
statement provides notice to the adverse party prior to trial of the
intention to use such out-of-court statement and such child
testifies at the trial . . . .
OCGA § 24-8-820 (a).
15
test,” and “[a] nonconstitutional error is harmless if the State shows
that it is highly probable that the error did not contribute to the
verdict.” Jones v. State, 315 Ga. 117, 122 (4) (880 SE2d 509) (2022)
(citation and punctuation omitted). To establish prejudice from trial
counsel’s deficient performance, as a defendant is required to do to
prevail on an ineffective-assistance-of-counsel claim, “a defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional error, the result of the proceeding would
have been different.” Allen v. State, 317 Ga. 1, 8–9 (4) (890 SE2d
700) (2023) (citation and punctuation omitted). Whether we are
assessing harm from a nonconstitutional error or prejudice from
counsel’s deficient performance, “we review the record de novo, and
we weigh the evidence as we would expect reasonable jurors to have”
weighed the evidence. Jones, 315 Ga. at 122 (4) (citation and
punctuation omitted) (addressing harm from nonconstitutional
evidentiary errors). See Harmon v. State, 319 Ga. 259, 265 (3) (903
SE2d 28) (2024) (addressing prejudice from counsel’s deficient
performance).
16
Here, any trial-court error in excluding the video recording of
four-year-old D. B.’s photo-lineup identification was harmless. As
discussed in Division 2, the evidence of Appellant’s guilt was strong.
And in particular, the evidence regarding the shooter’s identity
strongly supported a finding that Appellant was the shooter because
Appellant’s cell phone, which communicated with Barker’s cell
phone minutes before the shooting, was found in the kitchen where
Barker was killed, and both eight-year-old J. H. and seven-year-old
R. W. identified Appellant as the man they saw with a gun standing
over Barker’s unresponsive body. Considering this evidence, it is
highly probable that seeing D. B.’s identification of a man other than
Appellant in the photo lineup would not have changed the jury’s
finding that Appellant was the shooter. This is particularly true
because there was no other evidence presented at trial establishing
the identity of the other man D. B. identified or linking that man to
the crimes; J. H.’s and Mickles’s testimony that D. B. continued
playing on his tablet and did not appear to know what was going on
after the shooting indicated that D. B. was not paying close attention
17
to the circumstances surrounding the shooting; the video recording
of D. B.’s photo identification showed that, at times throughout the
photo lineup, D. B. appeared to be distracted, noncompliant, and
more interested in drawing a picture on the photo lineup than in
cooperating with the investigator; and, when the shooting occurred,
D. B. was quite young compared to the girls who positively identified
Appellant. See Wilson v. State, 319 Ga. 550, 555-556 (2) (905 SE2d
557) (2024) (holding that any error in excluding testimony “that
some other individuals might have had a motive to kill [the victim]”
was harmless because the testimony was “speculative,” there was no
“evidence connecting another person to the shooting,” and the
testimony did not “rebut other strong evidence against [the
defendant],” including that he “was driving near the crime scene at
the time of the shooting in a vehicle identified as the shooter’s
vehicle”); Talley v. State, 314 Ga. 153, 161 (2) (875 SE2d 789) (2022)
(holding that an assumed trial-court error regarding admission of
evidence was harmless where, “as to the identity of the shooter, the
evidence against [the defendant] was strong” because a victim
18
“identified [the defendant] as the shooter,” and the “cell phone
evidence” indicated that the defendant was in the location of the
shooting around the time of the shooting); Jones, 315 Ga. at 122-124
(4) (assuming that the trial court made several erroneous
evidentiary rulings and concluding that any error was harmless
because there was “strong” evidence of the defendant’s guilt, and the
admission of the challenged evidence would have had “little” impact
on the jury’s assessment of the trial evidence as a whole).
For the same reasons that it is highly probable that the result
of the trial would not have been different if the trial court had
permitted Appellant to play the video recording of D. B.’s photolineup identification for the jury, there is no reasonable probability
that the result of the trial would have been different if trial counsel
had taken the steps necessary to admit that video recording under
the child-hearsay statute. See, e.g., Allen, 317 Ga. at 7-8, 12 (3), (4)
(d) (concluding that related claims of trial-court error and ineffective
assistance of counsel were harmless and nonprejudicial,
respectively, for the same reasons); Jones, 315 Ga. at 122-125 (4), (5)
19
(holding that erroneous evidentiary rulings and assumed ineffective
assistance of counsel were harmless and nonprejudicial,
respectively, because the evidence of the defendant’s guilt was
strong); Clarke v. State, 308 Ga. 630, 633-636 (2), (3) (842 SE2d 863)
(2020) (holding that, for the same reasons that it was highly
probable that an evidentiary ruling was harmless, a related
ineffective-assistance-of-counsel claim failed for lack of prejudice).5
Accordingly, these claims fail.
Judgment affirmed. All the Justices concur.
5 We note that cumulative prejudice from the assumed trial-court error
and counsel’s assumed deficient performance does not warrant a new trial
“because the harm from the assumed error[ ] and assumed deficiency is the
same,” namely, that Appellant was unable to show the jury the video recording
of D. B.’s photo-lineup identification. Zayas v. State, 319 Ga. 402, 414 (4) (902
SE2d 583) (2024) (citation and punctuation omitted).
20