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: October 1, 2024
S24A1152. DEPRIEST v. THE STATE.
BETHEL, Justice.
Darnell Cory Depriest was convicted of felony murder and
other crimes in connection with the shooting death of his cousin Ivan
Lovejoy Williams. 1 On appeal, Depriest contends that the evidence
1 The crimes occurred on October 11, 2019. On January 3, 2020, a Newton
County grand jury indicted Depriest for malice murder (Count 1), felony
murder (Counts 2 and 3), aggravated assault (Count 4), possession of a firearm
during the commission of a felony (Counts 5 and 6), possession of a firearm by
a convicted felon (Count 7), and cruelty to children in the third degree (Count
8). At a September 2021 jury trial, the jury found Depriest not guilty of malice
murder, but guilty of all remaining counts. The trial court sentenced Depriest
to serve life in prison on Count 2; five years in prison on Count 5, to run
consecutively to Count 2; five years in prison on Count 7, to run concurrently
with Count 2; and twelve months in prison on Count 8, to run concurrently
with Count 2. Though the trial court purported to merge for sentencing
purposes all the remaining counts, Count 3 was actually vacated by operation
of law. See Noel v. State, 297 Ga. 698, 700 (2) (777 SE2d 449) (2015).
Depriest filed a timely motion for new trial, which was later amended
through new counsel. Following a hearing on May 24, 2023, the trial court
denied the amended motion on January 29, 2024. Depriest then filed a timely
notice of appeal, and his case was docketed to the August 2024 term of this
Court and submitted for a decision on the briefs.
presented at trial was insufficient to support his conviction for
felony murder both as a matter of constitutional due process and
under Georgia statutory law. He also argues that trial counsel
rendered ineffective assistance by failing to file a motion for
immunity from prosecution and that the trial court erred by denying
his request to charge the jury on defense of others. But the evidence
was sufficient to sustain Depriest’s conviction, trial counsel was not
deficient in failing to file a motion for immunity, and any error in
the trial court’s refusal to instruct the jury on defense of others was
harmless. So we affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. Around midnight
on October 11, 2019, emergency personnel responded to a 911 call
regarding a shooting at Depriest’s residence. Upon arriving, officers
found Williams, who had been shot in the head, inside the residence.
Also at the scene were Depriest, Depriest’s sister Denise Williams,
and Depriest’s fiancée Tiffany Beatty. Denise and Beatty both
observed the events leading to Williams’s death and were
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interviewed by officers at the crime scene; their interviews were
audio-recorded by an investigator and played for the jury at trial.
During her interview, Beatty stated that she was asleep in an
upstairs bedroom when she heard Depriest and Williams, who had
been drinking alcohol, arguing downstairs. Depriest then came into
Beatty’s bedroom “screaming” that Williams would not leave and
asked Beatty to talk to Williams. Beatty went downstairs, where
Williams explained that he would not leave because Depriest owed
him money. The men continued arguing, and Beatty positioned
herself between them. Beatty then saw that Depriest had a gun, and
she tried to convince him to give the gun to her. Depriest eventually
removed the magazine and handed the magazine to Beatty but “he
never put the gun down.” At some point, Williams “charged” toward
Beatty and Depriest, and the gun, which was still in Depriest’s hand
“went off.” Beatty explained that she had her back turned to
Depriest, who was behind her, when the gun went off.
For her part, Denise, who observed the confrontation from an
adjoining room, told investigators that Depriest and Williams began
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arguing about money, with Williams claiming that Depriest owed
him $150. Depriest asked Williams to leave, but Williams refused,
and the two argued back and forth. After Williams “walked up on”
Depriest and pointed his finger at him, Depriest walked away and
returned with a gun. Depriest then went upstairs to get Beatty, who
came downstairs with Depriest and positioned herself between the
men, trying to break them up. When Depriest gave Beatty the
magazine from his gun, Beatty said to Denise, “I got the clip.” Then,
Williams “was like getting ready to charge” or “go into him to charge”
Depriest, and “the next thing [Denise] kn[e]w, the gun went off.”
Before the gunshot, Denise “saw [Depriest] aim the gun, then [she]
heard the gun go off, and [Williams] fell to the ground.” Beatty was
clear that she saw Depriest point the weapon at Williams before she
heard the gunshot.
The investigator then asked both women to describe the
physical positions of Depriest, Williams, and Beatty in the room. As
Denise described the scene, Depriest, Beatty, and Williams were
each some feet apart. The women agreed that only Depriest was
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armed during the altercation. Testing showed that Beatty did not
have any blood on her clothes or person. A crime scene investigator
later testified that if someone were standing within a foot of
Williams, who was shot in the head, blood would very likely be found
on that person.
Depriest was arrested at the crime scene, and police also
recovered the gun used in the shooting. Later testing on the gun
revealed that the trigger-pull required approximately six-and-aquarter pounds of pressure, that the gun had a tendency not to fire
when the trigger was pulled, and that the gun misfired (i.e., did not
fire at all) on four of seven attempted shots.
Both Beatty and Denise later testified at trial. Both women
testified that Williams was unarmed at the time of the shooting, and
Beatty’s testimony was consistent with her interview at the crime
scene. Denise, however, recounted a somewhat different version of
events than what she told investigators on the night of the crimes.
Specifically, Denise testified that Williams, who was “angry” and
“very aggressive,” started walking over to Depriest “like he was
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going to hurt him” as Depriest handed Beatty the magazine from his
gun. Denise testified that she saw Depriest and Beatty bend down
and, as they were standing back up, heard the gun go off; she then
saw Williams fall to the floor.
Depriest’s theory of defense at trial was that he accidentally
shot Williams or, alternatively, that he acted in self-defense after
Williams charged at him. Depriest did not testify. Neither did he call
any witnesses or seek to enter any other evidence for the defense.
2. In his first enumeration of error, Depriest contends that the
evidence presented at trial was insufficient both as a matter of
federal constitutional due process and under Georgia statutory law
to support his conviction for felony murder. 2 We address these
2 Depriest purports to challenge the sufficiency of the evidence as to all
seven counts of which he was found guilty. However, Depriest was not
sentenced for one count of felony murder (Count 3), aggravated assault (Count
4), or possession of a firearm during the commission of a felony (Count 6)
because those counts merged for sentencing or were vacated by operation of
law. Depriest’s challenge to the sufficiency of the evidence underlying these
counts is therefore moot. See Eggleston v. State, 309 Ga. 888, 890-891 (848
SE2d 853) (2020). Further, Depriest’s argument on appeal is limited to the
assertion that the State failed to prove that he intentionally shot Williams,
which implicates only his conviction for felony murder predicated on
aggravated assault (Count 2). Our analysis is likewise limited to that
conviction. See Supreme Court Rule 22.
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arguments in turn.
(a) Depriest contends that the evidence at trial was insufficient
as a matter of constitutional due process to prove that he
intentionally shot Williams. When assessing evidentiary sufficiency
as a matter of due process, we ask whether “after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” McIntyre v. State, 312 Ga. 531, 531 (1)
(863 SE2d 166) (2021) (quoting Jackson v. Virginia, 443 U. S. 307,
319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)). “This Court does
not reweigh evidence or resolve conflicts in testimony” but rather
“defer[s] to the jury’s assessment of the weight and credibility of the
evidence.” Id. (citation and punctuation omitted).
In support of this argument, Depriest points to what he
characterizes as “undisputed” evidence showing that he removed the
magazine from the gun, that the gun was prone to misfiring, that
Williams “charged up” on Beatty and Depriest, and that there was
a struggle before the gun “went off.” And although Denise testified
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at trial that the gun “went off” after Williams charged at Depriest
and Beatty, offering some support for Depriest’s theories of defense,
her statement to investigators immediately after the shooting
supported the State’s theory that Depriest acted intentionally in
shooting Williams. As discussed above, Denise stated during that
interview that the men were some feet apart when she saw Depriest
aim and point the gun at Williams before she heard the gunshot.
And the jury was authorized to credit Denise’s prior statements and
reject her inconsistent trial testimony. See Watkins v. State, 313 Ga.
573, 576-577 (2) (872 SE2d 293) (2022); State v. Hinton, 309 Ga. 457,
462 (2) (847 SE2d 188) (2020) (“The trier of fact is not obligated to
believe a witness even if the testimony is uncontradicted and may
accept or reject any portion of the testimony.” (citation and
punctuation omitted)). See also Ward v. State, 316 Ga. 295, 298 (2)
(888 SE2d 75) (2023) (“the testimony of a single witness is generally
sufficient to establish a fact”). Moreover, additional evidence at trial
similarly undermined Depriest’s claims of accident and self-defense.
The absence of blood spatter on Beatty’s clothes or person authorized
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the jury to conclude that Beatty, who was standing between
Depriest and Williams, was some distance away from Williams
when he was shot. And evidence showing that Depriest’s gun had a
trigger pull of six-and-a-quarter pounds and was prone not to fire
when the trigger was pulled authorized the jury to conclude that the
gun did not just go off but instead that Depriest intentionally pulled
the trigger. See Bennett v. State, 304 Ga. 75, 797 (1) (822 SE2d 254)
(2018) (jury is free to disbelieve evidence that defendant acted
accidentally or in self-defense). In sum, the evidence recounted
above was sufficient as a matter of constitutional due process to
authorize a rational jury to conclude that Depriest intentionally shot
Williams and, accordingly, to find him guilty of felony murder
predicated on aggravated assault.
(b) Depriest also asserts that the evidence against him was
insufficient under OCGA § 24-14-6 because, he says, the State’s
proof that he intentionally assaulted Williams was based solely on
circumstantial evidence that failed to exclude “every other
reasonable hypothesis save that of the guilt of the accused.” See
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OCGA § 24-14-6 (“To warrant a conviction on circumstantial
evidence, the proved facts shall not only be consistent with the
hypothesis of guilt, but shall exclude every other reasonable
hypothesis save that of the guilt of the accused.”). But, contrary to
Depriest’s argument, the State’s evidence of his intentional conduct
was not based solely on circumstantial evidence. Denise, who was
an eyewitness to the crimes, stated that Depriest aimed and pointed
his gun at Williams before firing. This was direct evidence of
Depriest’s intentional conduct. See Bradley v. State, 318 Ga. 142,
144 (1) (897 SE2d 428) (2024) (because conviction was not based
solely on circumstantial evidence but also on eyewitness testimony,
circumstantial evidence statute did not apply to sufficiency
analysis); Gittens v. State, 307 Ga. 841, 843 (1) n.2 (838 SE2d 888)
(2020) (“Eyewitness testimony based on the witness’s firsthand
observations of the crime is direct, not circumstantial, evidence.”).
“And if there is any direct evidence presented by the State, the
circumstantial evidence statute does not apply in a sufficiency
analysis.” Maynor v. State, 317 Ga. 492, 498 (2) (b) (893 SE2d 724)
10
(2023) (citation and punctuation omitted). Accordingly, Depriest’s
statutory sufficiency claim fails.
3. Depriest next argues that he received ineffective assistance
when trial counsel failed to file a pretrial motion for immunity from
prosecution based on self-defense. See OCGA § 16-3-24.2 (granting
immunity to person who uses deadly force in self-defense). We
disagree.
To demonstrate this his trial counsel rendered constitutionally
ineffective assistance, Depriest
must prove both that his attorney’s performance was
professionally deficient and that the deficiency resulted in
prejudice to his case. See Strickland v. Washington, 466
U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To
establish deficient performance, [an] [a]ppellant must
show that his counsel’s acts or omissions were objectively
unreasonable, considering all the circumstances at the
time and in the light of prevailing professional norms. To
establish prejudice, an [a]ppellant must show a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. This burden, though not impossible
to carry, is a heavy one.
Blackmon v. State, 302 Ga. 173, 175 (2) (805 SE2d 899) (2017)
(citations and punctuation omitted). To succeed on a pretrial
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immunity motion pursuant to OCGA § 16-3-24.2, trial counsel would
have had to show by a preponderance of the evidence that Depriest
acted in self-defense. See Goodson v. State, 305 Ga. 246, 250-251 (2)
(c) (824 SE2d 371) (2019).
Here, trial counsel testified at the motion for new trial hearing
that, while there was enough evidence to raise a justification defense
at trial, the evidence supporting such a defense was “conflicting” and
not “clear-cut,” such that a pre-trial motion for immunity was
unlikely to succeed. Trial counsel further testified as to her belief
that some of the State’s witnesses may have been unavailable for
trial and that, by testifying at a hearing on an immunity motion,
their testimony would be preserved for later use at trial. Trial
counsel’s reasoning was sound, and her decision not to file an
immunity motion on these bases was reasonable. See Broxton v.
State, 306 Ga. 127, 138 (5) (a) (829 SE2d 333) (2019); Dent v. State,
303 Ga. 110, 119 (4) (d) (810 SE2d 527) (2018). Depriest has failed
to show that his counsel’s strategic decisions were so unreasonable
that no competent attorney would have made them, and therefore
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he has failed to establish that his trial counsel performed deficiently.
Further, the evidence discussed above, particularly Denise’s
statement to investigators that Depriest aimed his gun at the
unarmed Williams before shooting him, significantly undermined
Depriest’s claim of self-defense. And in light of that evidence, “there
was little chance that an immunity motion would have been
granted.” Russell v. State, ___ Ga. ___ (3) (___ SE2d ____) (Case No.
S24A0565, Aug. 13, 2024); Goodson, 305 Ga. at 251 (2) (c). Further,
the jury’s finding of guilt, based on the sufficient evidence outlined
above, indicates that a motion for pretrial immunity would not have
been granted as a matter of law, and consequently Depriest cannot
show that the outcome would have been different had counsel filed
the motion. Accordingly, Depriest also cannot show that trial
counsel’s failure to pursue the motion prejudiced him, and his claim
of ineffective assistance fails.
4. Lastly, Depriest argues that the trial court erred by denying
his request to charge the jury as to defense of others because, he
says, “[e]vidence was presented to support the idea that [Williams]
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could also have intended to harm [Beatty].”3 Assuming without
deciding that the trial court erred in this respect, we conclude that
any such error was harmless.
We begin by noting that “[t]o authorize a jury instruction, there
need only be slight evidence supporting the theory of the charge.”
Wainwright v. State, 305 Ga. 63, 70 (5) (823 SE2d 749) (2019).
“Whether the evidence presented is sufficient to authorize the giving
of a jury charge is a question of law,” Gray v. State, 319 Ga. 72, 75
(2) (901 SE2d 556) (2024) (cleaned up), and “[w]e review de novo a
properly preserved claim that a trial court erred in refusing to
instruct the jury on an applicable principle of law.” Eubanks v. State,
317 Ga. 563, 581 (3) (b) (894 SE2d 27) (2023) (citation and
punctuation omitted). But as we have explained, “[e]ven when we
find error in a jury charge, we will not reverse when the error is
harmless. The test for determining whether a nonconstitutional
instructional error was harmless is whether it is highly probable
3 At trial, Depriest requested that the court instruct the jury on the
defense of others. The trial court declined but noted Depriest’s objection for the record.
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that the error did not contribute to the verdict.” Gray, 319 Ga. at 75
(2) (cleaned up). Such is the case here.
As we have already recounted above, the evidence showing that
Depriest intentionally shot Williams was strong. By contrast, any
evidence that Depriest acted in defense of Beatty was exceedingly
slight. Specifically, Depriest points to evidence that Beatty broke a
bottle of liquor, causing Williams to become angrier. But Williams
was unarmed during the entire altercation. And as the trial court
reasoned in rejecting this argument below, although Beatty
purposely inserted herself between the two men while they argued,
none of Williams’s actions were directed toward Beatty, and
Williams did not otherwise threaten her. Our law makes clear that
the use of deadly force to defend oneself or another person is justified
only if a person “reasonably believes that such force is necessary to
prevent death or great bodily injury . . . or to prevent the commission
of a forcible felony.” OCGA § 16-3-21 (a). See also OCGA § 16-1-3 (6)
(defining “forcible felony” as “any felony which involves the use or
threat of physical force or violence against any person”). The
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evidence Depriest highlights in support of this argument does not
suggest that Beatty was in such danger that Depriest “reasonably”
believed it was necessary to fire his gun at Williams. Moreover, the
jurors were properly instructed on the law of justification, and they
apparently disbelieved the only evidence that would suggest a threat
to Beatty – that is, the testimony that Williams charged toward
Depriest and Beatty – as they rejected Depriest’s claim that he acted
in self-defense, making it highly probable that they also would have
rejected a claim that he acted to defend Beatty, who inserted herself
into the men’s altercation and was not the target of Williams’s
aggression. For these reasons, we conclude that it is highly probable
that the trial court’s decision not to charge the jury on defense of
others did not contribute to the jury’s verdict. Accordingly, any
possible error was harmless. See Jones v. State, 310 Ga. 886, 889 (2)
(855 SE2d 573) (2021) (any error in failing to charge jury on defense
of self or third person was harmless because “evidence supporting a
charge on defense of self or a third person . . . was meager at best”);
Calmer v. State, 309 Ga. 368, 372-373 (2) (c) (846 SE2d 40) (2020)
16
(“any weak evidence that [the defendant] acted to prevent death or
great bodily injury to himself is wholly undercut by other evidence
to the contrary” and, thus, any error in refusing to charge jury on
self-defense was harmless).
Judgment affirmed. All the Justices concur.
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