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: June 10, 2025
S25A0066. FLOYD v. THE STATE.
COLVIN, Justice.
Appellant Tellisavoris Floyd appeals his convictions for felony
murder related to the shooting death of Sean Turner and for armed
robbery and other crimes committed against Turner and Stephen
Thomas. 1 Appellant argues that the evidence was insufficient as a
1 The crimes occurred on December 4, 2015. On March 3, 2017, a Fulton
County grand jury returned an 11-count indictment against Appellant and
Cornelius Seabrum. Appellant was charged with malice murder (Count 1),
felony murder in the commission of the armed robbery of Turner (Count 2),
felony murder in the commission of aggravated assault with a deadly weapon
against Turner (Count 3), felony murder in the commission of hijacking a motor
vehicle (Count 4), armed robbery for theft of Turner’s cell phone (Count 5),
armed robbery for theft of Thomas’s wallet (Count 6), aggravated assault with
a deadly weapon against Turner by shooting him with a handgun (Count 7),
aggravated assault with a deadly weapon by pointing a handgun at, toward,
and in the direction of Turner (Count 8), aggravated assault with a deadly
weapon by pointing a handgun at, toward, and in the direction of Thomas
(Count 9), hijacking a motor vehicle (Count 10), and possession of a firearm
during the commission of a felony (Count 11).
Appellant was tried before a jury from March 13 through 17, 2017, and
the jury found Appellant guilty on all counts except Counts 1 (malice murder),
matter of constitutional due process to support his convictions for
felony murder (Count 2) and armed robbery of Turner’s cell phone
(Count 5), that the trial court plainly erred by failing to charge the
jury on accomplice corroboration, that the trial court erred by
denying Appellant’s motion for mistrial after his right to confront a
witness under the Sixth Amendment was allegedly violated, that the
trial court erred by admitting testimony over objection regarding
Appellant’s alleged gang involvement, and that his trial counsel was
ineffective in several ways. We affirm Appellant’s convictions for the
reasons explained below.
The trial evidence showed the following. Turner and his friend,
8 (aggravated assault against Turner), and 9 (aggravated assault against
Thomas). The trial court sentenced Appellant to life in prison for felony murder
(Count 2). The court also imposed 20-year concurrent sentences for the armed
robbery charge (Count 6) and the aggravated assault with a deadly weapon
charge (Count 7); a 20-year consecutive sentence for the hijacking of a motor
vehicle charge (Count 10); and a 5-year consecutive sentence for the possession
of a firearm during the commission of a felony charge (Count 11). The
remaining charges were either merged or vacated by operation of law.
Appellant filed a motion for new trial on March 28, 2017, which he
amended through new counsel on January 18, 2021. The trial court denied
Appellant’s motion for new trial on November 28, 2022 but vacated and
reentered the order on March 8, 2024. Appellant filed a timely notice of appeal
with this Court that same day, and the case was docketed to the term of court
beginning in December 2024.
2
Thomas, were riding around Atlanta in Turner’s white BMW during
the evening of December 4, 2015, looking for things to do. Both were
carrying their cell phones at the time. The two stopped at a gas
station where they ran into a mutual friend, Deanthony White, also
known as “Sosa.” Turner and Thomas told White that they were
looking for drugs, and White said that he could assist them in doing
so. The three then left the gas station with White getting into his
girlfriend’s car and Turner and Thomas getting into Turner’s car.
White’s girlfriend drove away from the gas station, and Turner and
Thomas followed her to an apartment complex. Video surveillance
footage from the gas station, which was entered into evidence and
played for the jury, showed Turner, Thomas, and White interacting
and leaving at the same time.
When they arrived at the apartment complex, White got out of
his girlfriend’s car and went inside while Thomas and Turner stayed
behind in Turner’s BMW. White came back with two men and told
Thomas and Turner that the men would accompany them to a drug
deal. The two men got in the backseat of Turner’s car, and White got
3
back into his girlfriend’s car, which then pulled off.
Thomas testified that the men in the backseat told Thomas and
Turner that they would give them directions. According to Thomas,
once they had driven for some time, the men in the backseat said
that the destination was nearby and that Turner could “pull off” on
the road. Once Turner parked, Thomas testified, he and Turner
“both felt guns come up to [their] heads,” and Thomas felt an arm
around his neck. According to Thomas, the men in the backseat then
said, “This is how it’s going to go[,]” and “Give us all your stuff.”
Thomas further testified that the men “were basically reaching in
[their] pockets[,]” that the men took Thomas’s phone, that he could
“kind of see out of the corner of [his] eye [that] they were reaching
into Sean’s pockets[,]” and that, once the men had “got[ten]
everything from [them]” they instructed Thomas and Turner to get
out of the car.
Thomas and Turner got out of the car as instructed. Then,
according to Thomas, the men “climbed over through the console
area[,]” got into the driver and passenger seats, and drove off before
4
stopping at a red light that was about 50 feet away. Similarly, a
bystander testified that he saw two men exit a car abruptly before it
sped off toward a nearby light. At that point, Turner chased after
the car and opened the driver’s side door. He was shot after a brief
scuffle with the driver.
Detective Kevin Leonpacher, an expert in cell phone data
interpretation with the Atlanta Police Department, testified that at
8:58 p.m. on December 4, 2015, Appellant’s cell phone showed
activity “in an area not far from the shooting”; that dispatchers
received a 911 call regarding the shooting at 9:12 p.m.; and that at
9:25 p.m., Appellant’s cell phone was either off or in airplane mode.
Thomas testified that he ran to help Turner after Turner had
been shot and that a stranger approached them. Thomas further
testified that he told the stranger to call the police because he did
not have a phone. Likewise, a witness to the crime testified that,
after Turner was shot, the witness asked Thomas if he had a phone
and Thomas replied, “No. They took everything.” The witness
testified that he then ran to his house to get his phone to dial 911.
5
First responders arrived at the scene, and Turner was taken to
a hospital but died the next morning. A medical examiner testified
that Turner’s cause of death was a gunshot wound to the abdomen.
The medical examiner retrieved a projectile from Turner’s body,
which a firearms examiner identified at trial as a “.380 metal jacket
bullet.” The items that Turner had on his person on the night of the
crime were photographed, but a cell phone was not among them.
Five days after the shooting, Turner’s car was found on fire in
a cul-de-sac. The car was severely damaged, and an officer testified
that he did not find any items in the car because it was “burn[ed]
up.” The expert in cell phone data interpretation testified that
around the time Turner’s car was found, Appellant’s cell phone
showed activity in the same area in which Turner’s vehicle was
recovered.
During the investigation, Thomas told officers that he and
Turner had initially met “Sosa” at a gas station on the night of the
crime, and Thomas later identified a photograph of White in a
photographic lineup as the person he knew as “Sosa.” Detectives
6
began a search for White, who voluntarily approached them and
agreed to an interview once he knew that the detectives were looking
for him. White told Detective Darrin Smith that the two men who
got into Turner’s car on the night of the crime were known as “Tellis”
and “Fat.” White used Detective Smith’s computer to log into one of
White’s social media accounts and pull up a picture of “Tellis.” Using
the information that White provided, another detective identified
Appellant as the suspect. Detective Smith then created two photo
lineups, each with a picture of Appellant.
Thomas identified Appellant’s photograph with confidence that
he was one of the two men who were in the car and with “seven out
of ten sure[ty]” that Appellant was the shooter. White identified a
photograph of Cornelius Seabrum as “Fat,” one of the two men who
got in the back of Turner’s car. White also identified the photo of
Appellant as “Tellis,” the second of the two individuals who got into
Turner’s vehicle on the night of the crime. And at trial, White made
an in-court identification of Appellant as “Tellis.”
Law enforcement officers obtained an arrest warrant for
7
Appellant, whom they found outside of Jeffrey Whitley’s apartment,
which Appellant sometimes visited. Officers apprehended Appellant
there, and Whitley handed them a 9 mm handgun. At trial,
Detective Smith testified that he did not find any of the items that
were taken from Turner on Appellant’s person. And a firearms
examiner testified that the 9 mm handgun did not fire the bullet
that the medical examiner retrieved from Turner’s body.
Tralonda McCartney testified that she was the mother of
Appellant’s child and that, around Christmas 2015, she lived with
Whitley, who was a friend of her parents. Throughout her testimony,
McCartney denied receiving any information regarding the crime
from Appellant, relaying that information to Whitley, or knowing
anything about the crime in general. Likewise, McCartney’s friend,
Harmony Gilyard, also testified that she had no knowledge of the
crime and that she did not relay any information to Whitley.
Whitley was called to testify after McCartney and Gilyard.
Contrary to McCartney’s testimony, Whitley testified that
McCartney said that Appellant told her that “he killed that boy.”
8
Whitley further testified that Gilyard said that Appellant told her
that he killed someone. According to Whitley, Gilyard thought
Appellant was “just playing.”
1. Appellant argues that the evidence was insufficient as a
matter of constitutional due process to support his convictions for
felony murder and the predicate offense of armed robbery for theft
of Turner’s cell phone. Specifically, Appellant argues that his
conviction on Count 5 for armed robbery should be reversed and
barred from retrial because no evidence showed that Turner’s cell
phone was taken.2 He further contends that his conviction on Count
2 for felony murder should be reversed and barred from retrial
because it was predicated on the armed robbery. For the reasons
that follow, his claims fail.
When reviewing the sufficiency of the evidence, the proper
standard for review is whether a rational trier of fact could have
2 Appellant was not sentenced on Count 5 because it merged with Count
2. Therefore, Appellant’s challenge to the armed robbery count is moot. Long
v. State, 287 Ga. 886, 887-888 (1) (700 SE2d 399) (2010) (holding that the
appellant’s contention that evidence was insufficient as to certain counts was
moot because the counts had merged).
9
found the defendant guilty beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). “This
Court does not reweigh evidence or resolve conflicts in testimony;
instead, evidence is reviewed in a light most favorable to the verdict,
with deference to the jury’s assessment of the weight and credibility
of the evidence.” Hayes v. State, 292 Ga. 506, 506 (739
SE2d 313) (2013) (citation and punctuation omitted).
Under Georgia law, a person commits the offense of felony
murder when, “in the commission of a felony, he or she causes the
death of another human being irrespective of malice.” OCGA § 16-5-1 (c). Moreover, 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, or any replica, article, or device having the
appearance of such weapon.” OCGA § 16-8-41 (a).
Here, the evidence was constitutionally sufficient to support
Appellant’s conviction for felony murder predicated on armed
robbery for the theft of Turner’s cell phone. Thomas testified that
10
both he and Turner had cell phones on the night of the crime; that
they “both felt guns come up to [their] heads”; that the men in the
backseat of Turner’s car ordered them to give up “all [their] stuff”;
that he saw them reaching into Turner’s pockets; that they
instructed Turner and Thomas to get out of the car once they had
taken “everything”; and that the men took Thomas’s phone, so
Thomas had to ask a stranger to call the police. Finally, Turner’s cell
phone was not among his personal items that were photographed
from the night of the crime. Nor was Turner’s cell phone recovered
from his burned car. This evidence, though circumstantial, was
constitutionally sufficient to support armed robbery, and thus,
Appellant’s conviction for felony murder predicated on armed
robbery.3 See Perdomo v. State, 307 Ga. 670, 672-674 (2) (a) (837
SE2d 762) (2020) (upholding the appellant’s conviction for felony
murder predicated on criminal attempt to commit armed robbery
based on evidence, in part, that “[the victim’s] assailant made a
3 Appellant also suggests that there was a fatal variance. This claim fails
for the same reason as explained above, which shows that the trial evidence
did authorize a jury finding that Appellant stole the cell phone.
11
demand for property immediately before shooting him” and “[the
victim] always carried a wallet on his person but that it was missing
when he was found”); Waller v. State, 311 Ga. 517, 522 (2) (a) (858
SE2d 683) (2021) (upholding the appellant’s convictions for felony
murder and armed robbery of the victim’s backpack containing cash
in light of “evidence show[ing] that when [the victim] arrived in
Columbus, he had a black backpack in his possession, but when his
body was located . . . , he was no longer in possession of the
backpack”; that the appellant believed the victim’s backpack
contained about $40,000 in cash; that the appellant exchanged text
messages with others “intimating that [he] wanted to rob [the
victim]”; and that the appellant admitted to his cellmate that he and
his cousin robbed and killed someone for $40,000), overruled on
other grounds by Cook v. State, 313 Ga. 471, 503 (3) (e) (870 SE2d
758) (2022).
2. Appellant also argues that White was an accomplice whose
testimony required corroboration and that the trial court committed
plain error when it charged the jury that the testimony of a single
12
witness was sufficient to establish a fact but failed to instruct the
jury on the requirement for accomplice corroboration under OCGA §
24-14-8. This claim also fails.
Because Appellant’s counsel did not object to the omission of
an accomplice-corroboration instruction, we review this claim only
for plain error. See OCGA § 17-8-58. To establish plain error,
Appellant must meet each of the following requirements:
First, there must be an error or defect – some sort of
deviation from a legal rule – that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error – discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.
Williams v. State, 315 Ga. 490, 495 (2) (883 SE2d 733) (2023)
(citation and punctuation omitted; emphasis in original). “This
Court does not have to analyze all elements of the plain-error test
13
where an appellant fails to establish one of them.” Payne v. State,
314 Ga. 322, 325 (1) (877 SE2d 202) (2022).
Under Georgia law, “[t]he testimony of a single witness is
generally sufficient to establish a fact[,]” but “in certain cases,
including . . . felony cases where the only witness is an accomplice,
the testimony of a single witness shall not be sufficient.”
OCGA § 24-14-8. A trial court errs when it fails to give an
accomplice-corroboration instruction and there is “slight evidence
supporting a finding that a witness was an accomplice.” Walter v.
State, 304 Ga. 760, 766 (3) (b) (822 SE2d 266) (2018). The error may
not have affected the appellant’s substantial rights, however, if the
accomplice testimony was corroborated by “evidence outside of the
testimony provided by the accomplice.” See Hawkins v. State, 304
Ga. 299, 303 (3) (818 SE2d 513) (2018).
Pretermitting whether the trial court’s failure to charge the
jury on accomplice corroboration constituted a clear or obvious error,
that failure “did not likely affect the outcome of [Appellant’s] trial”
under the third prong of the plain-error analysis, so Appellant’s
14
claim fails. Hawkins, 304 Ga. at 303 (3). Here, White identified
Appellant in a photographic lineup and at trial as one of the two men
who entered Turner’s car on the night of the crime. White’s
testimony was corroborated by Whitley and Thomas, who offered
some of the most incriminating evidence against Appellant. Whitley
testified that Gilyard and McCartney said that Appellant told them
that he murdered someone. And Thomas identified Appellant in a
lineup. For these reasons, Appellant cannot show that the outcome
of the trial would have been different if the court had given the
accomplice corroboration charge. Because Appellant cannot show
prejudice in this way, his claim of plain error fails. See Jackson v.
State, 317 Ga. 95, 105 (2) (c) (891 SE2d 866) (2023) (holding that the
appellant was not prejudiced by his trial counsel’s failure to request
an accomplice-corroboration charge, in part, because the
accomplice’s testimony was not the “bedrock” of the appellant’s
conviction when “the most incriminating evidence against [the
appellant] did not come from [an accomplice]” but from other
witnesses, including one who told police “that [the appellant] shot
15
[the victim]”); Hawkins, 304 Ga. at 303 (3) (holding that the trial
court’s failure to charge the jury on accomplice corroboration was
unlikely to affect the outcome of the trial where there was evidence
outside of the accomplice’s testimony to “connect [the appellant] to
[the victim’s] murder . . . including [the appellant’s] own admission
to [his associate’s sister] that he had shot someone at the club” and
“eyewitness accounts from [the victim’s] friends who recognized [the
appellant] from their altercation at the club”); Hamm v. State, 294
Ga. 791, 797 (2) (756 SE2d 507) (2014) (holding that the trial court’s
failure to charge the jury on accomplice corroboration was harmless
when, “[i]n addition to [the alleged accomplice’s] testimony, the
State adduced, through [the appellant’s friend], [the appellant’s]
own admission that he had ‘killed an amigo’ and [the appellant’s]
statement that ‘his girl had set up a lick[ 4]’”).
3. Appellant next contends that the trial court violated his
Sixth Amendment right to confront a witness against him by
overruling his objections and denying his motion for mistrial after
4 A “lick” is a slang term for “robbery.” Hamm, 294 Ga. at 797 (2).
16
the State called a co-indictee who refused to testify. We disagree.
Seabrum was named in the indictment with Appellant. At trial,
the prosecution announced in the jury’s presence that it would call
Seabrum to the witness stand. The trial court then excused the jury
for a break before Seabrum entered the courtroom. Seabrum’s
counsel appeared and notified the court that she had filed an ex
parte “motion for evaluation” because she was “concern[ed] [about]
whether or not Mr. Seabrum underst[ood] what [wa]s going on.”
Seabrum’s counsel represented to the court that, according to
Seabrum’s mother, Seabrum read and understood at a third-grade
level. The trial court then posed a series of questions to Seabrum,
none of which he answered. The trial court held Seabrum in
contempt, and Seabrum was never brought before the jury to testify.
Trial counsel objected on the grounds that it was prejudicial for
Seabrum not to testify after the State called him as its next witness
because it would insinuate that Seabrum was “influenced by
someone, particularly [Appellant].” Trial counsel also moved for
mistrial, arguing that Appellant’s Sixth Amendment right to
17
confront the witnesses against him was violated because Seabrum’s
refusal to testify after the State called his name was prejudicial in
that it “raise[d] an inference of guilt on [Appellant].” The trial court
denied Appellant’s motion for mistrial. Afterward, the trial court
addressed the jurors, saying, “Sometimes witnesses are called in
different orders for a variety of reasons. We are now going to resume
the trial.” The court then directed the State to call its next witness,
which was McCartney.
The Sixth Amendment’s Confrontation Clause provides that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him[.]” U.S.
Const. Amend. VI. An appellant’s right to confrontation under the
Sixth Amendment may be violated when the prosecution calls an
appellant’s co-indictee to the stand, and “in the jury’s presence,
pose[s] a series of leading questions suggesting the guilt of the
accused” while the co-indictee invokes the Fifth Amendment or
otherwise refuses to testify. Horne v. State, 281 Ga. 799, 807 (5) (642
SE2d 659) (2007) (emphasis supplied). We review the denial of a
18
motion for mistrial for abuse of discretion. See McCabe v. State, 319
Ga. 275, 282 (2) (a) (903 SE2d 78) (2024).
Here, Appellant’s Sixth Amendment right to confront the
witnesses against him was not violated because “[Seabrum] never
appeared before the jury and, consequently, was not required to
exercise his right to remain silent repeatedly as the prosecutor posed
a line of questions suggestive of [Appellant’s] guilt.” Hendricks v.
State, 283 Ga. 470, 472 (3) (660 SE2d 365) (2008).
Moreover, once the court decided that Seabrum would not take
the stand that day, it told the jury that witnesses are sometimes
called out of order. The trial court never told the jury that Seabrum
was refusing to speak and was being held in contempt. The court’s
choice of language further minimized the probability that Seabrum’s
failure to testify would implicate Appellant in the crimes. Cf.
Hendricks, 283 Ga. at 472 (3) (holding that the appellant did not
suffer prejudice when the trial court “informed the jury that [his
co-indictee] . . . had refused to testify notwithstanding [a] proffer of
immunity and had, therefore, been held in contempt”). The trial
19
court did not abuse its discretion in overruling Appellant’s objection
and denying his motion for mistrial for these reasons.
4. Appellant further argues that the trial court abused its
discretion in admitting testimony on redirect that Appellant was
allegedly involved with a gang. Appellant asserts that the evidence
should have been excluded as inadmissible character evidence under
OCGA § 24-4-404 (b), and that it was highly prejudicial, and thus,
inadmissible under OCGA § 24-4-403. These claims, too, fail.
At trial, McCartney was called as a witness prior to Whitley.
Under direct examination, she denied telling Whitley that Appellant
told her that he committed the crime. The prosecution then called
Whitley to “impeach . . . McCartney.” Whitley testified that when
Appellant was arrested at his apartment, McCartney was present
and told Whitley that Appellant told her that he killed someone.
On cross examination, trial counsel asked Whitley if he was
“shocked to hear that Mr. Floyd was being charged with murder,” to
which Whitley responded, “Yeah.” Trial counsel further asked
Whitley whether it was “correct” that he would “never think that
20
[Appellant] would be involved in . . . murder[.]” And Whitley
responded, “That’s totally correct.”
On redirect, the prosecution asked Whitley if he “remember[ed]
talking to Detective Smith about gang information[.]” Trial counsel
objected, arguing, in part, that “it appear[ed] . . . that the State [wa]s
getting ready to get into some improper character evidence . . . and
that [it] would be a violation of [Appellant’s] Sixth Amendment
right[.]” In response, the prosecution argued that trial counsel made
the “improper character evidence” relevant by asking Whitley
whether he was “shocked” that Appellant was involved “in anything
bad.” The trial court agreed with the prosecution and overruled trial
counsel’s objection.
The prosecution continued its examination as follows:
PROSECUTOR: You said you didn’t recall [talking to
Detective Smith about gang information]?
WHITLEY: No. Why would I speak about gang
information?
PROSECUTOR: If I showed you a copy of the transcript
of your recorded statement, would that refresh your
recollection?
WHITLEY: Yeah.
21
PROSECUTOR: So what did you say about gang
information to –
WHITLEY: At the time I thought it was a gang but it
wasn’t a gang. It was some –
TRIAL COUNSEL: Your Honor, then I would renew my
objection at this time.
THE COURT: The objection is overruled.
WHITLEY: It was a rap organization. They do music and
stuff, but it’s not a gang.
PROSECUTOR: What is it called?
WHITLEY: Twenty-one Savvy or something. I don’t
know.
On appeal, Appellant argues that the door was not opened to
evidence of his alleged gang involvement; that the trial court erred
by overruling his objection under OCGA § 24-4-404 (b) insofar as
Whitley’s testimony was inadmissible character evidence; and that
the evidence was highly prejudicial.
“We review a trial court’s ruling to admit evidence for an abuse
of discretion.” Mitchell v. State, 320 Ga. 673, 677 (3) (911 SE2d 607)
(2025). Evidence is relevant when it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” OCGA § 24-4-401. “All relevant evidence shall be
22
admissible, except as limited by constitutional requirements or as
otherwise provided by law or by other rules[.]” OCGA § 24-4-402.
Under OCGA § 24-4-403, “[r]elevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice[.]” Moreover, OCGA § 24-4-404 (b) provides that,
[e]vidence of other crimes, wrongs, or acts shall not be
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, including, but not limited
to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
OCGA § 24-4-404 (b).
Here, we need not decide whether the trial court abused its
discretion in admitting evidence that Whitley once suspected that
Appellant was in a gang because any error was harmless. Whitley
made only one comment about his suspicion of Appellant’s gang
involvement. Then he immediately clarified his statement by
explaining that the alleged gang was actually a rap organization.
Because of Whitley’s clarification and the strong evidence against
Appellant, Appellant cannot show that he was harmed by the
23
admission of the gang-related evidence, and his claim fails. Cf.
Strother v. State, 305 Ga. 838, 848 (4) (d) (828 SE2d 327) (2019)
(holding that the appellant was not prejudiced by the admission of
gang-related evidence when the “State made no attempt to prove
that [the appellant] had actually been a gang member or committed
other murders[,]” “the prosecutor did not question . . . witness[es]
about [the appellant’s] gang activities[,]” and “[the appellant] d[id]
not contend that the prosecutor emphasized (or even mentioned)
that evidence during his closing”).
5. Appellant next argues that his counsel rendered ineffective
assistance in several instances. He asserts that trial counsel was
ineffective in (a) failing to file a general demurrer to Count 10 for
motor vehicle hijacking after the jury was sworn and jeopardy
attached; (b) failing to request an accomplice corroboration charge
under OCGA § 24-14-8; (c) failing to renew Appellant’s objection to
the trial court’s refusal to instruct the jury on the lesser-included
offense of voluntary manslaughter; and (d) failing to move in limine
to exclude the 9 mm handgun discovered by law enforcement officers
24
following Appellant’s arrest. Each of Appellant’s assertions fail, as
explained below.
“To prevail on any of his claims, [Appellant] must show both
that his counsel’s performance was constitutionally deficient and
that he was prejudiced by this deficient performance.” Lynn v. State,
310 Ga. 608, 612 (4) (852 SE2d 843) (2020) (citing Strickland v.
Washington, 466 U.S. 668, 687 (II) (104 SCt 2052, 80 LE2d 674)
(1984)). To establish deficiency, Appellant “must show that his
attorney performed at trial in an objectively unreasonable way
considering all the circumstances and in light of prevailing
professional norms.” Vendrel v. State, 318 Ga. 233, 240 (2) (897 SE2d
751) (2024) (citation omitted). To establish prejudice, Appellant
must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Lynn, 310 Ga. at 612-613 (4) (citation and punctuation
omitted). “If an appellant fails to meet his or her burden of proving
either prong of the Strickland test, the reviewing court does not have
to examine the other prong.” Stallworth v. State, 304 Ga. 333, 334
25
(2) (818 SE2d 662) (2018) (citation and punctuation omitted).
(a) Trial counsel was not deficient for failing to file a general
demurrer on Count 10 for hijacking a motor vehicle. “A person
commits the offense of hijacking a motor vehicle in the first degree
when such person while in possession of a firearm or weapon obtains
a motor vehicle from an individual or the presence of another
individual by force and violence or intimidation or attempts or
conspires to do so.” OCGA § 16-5-44.1. (b) (1) (emphasis supplied).
“[T]o withstand a general demurrer, an indictment must: (1) recite
the language of the statute that sets out all the elements of the
offense charged, or (2) allege the facts necessary to establish
violation of a criminal statute.” Jackson v. State, 301 Ga. 137, 141
(1) (800 SE2d 356) (2017). Here, Appellant argues that Count 10 was
subject to a general demurrer because the indictment allegedly
omitted an element of OCGA § 16-5-44.1 (b) (1), that Appellant
obtained Turner’s vehicle by “force and violence[.]” OCGA §16-5-44.1
(b) (1) (emphasis supplied). But rather than argue that the statute
is ambiguous, Appellant argues that the statute should be
26
interpreted as requiring both force and violence and that the
indictment is insufficient because it does not allege the latter.
Appellant, however, ignores the statute’s plain language which
necessitates that the offense be committed by “force and violence or
intimidation.” OCGA § 16-5-44.1 (b) (1) (emphasis supplied). Here,
in addition to alleging that Appellant obtained possession of
Turner’s vehicle by force, the indictment also alleged intimidation.
Accordingly, the indictment alleged the necessary elements of
hijacking, and Appellant’s claim fails. See Reddick v. State, 321 Ga.
73, 85 (3) (b) (911 SE2d 638) (2025) (“[C]ounsel cannot be deemed
deficient for failing to make a meritless objection.”).
(b) Appellant’s counsel was not ineffective for failing to request
an accomplice-corroboration instruction because Appellant cannot
show that he was prejudiced by any deficiency of trial counsel. “[T]he
test for prejudice in the ineffective assistance analysis is equivalent
to the test for harm in plain error review.” Knighton v. State, 310
Ga. 586, 597 (2) (c) (853 SE2d 89) (2020) (citation and punctuation
omitted). And as explained in Division 2, Appellant has not carried
27
his burden of showing that the outcome of the trial would have been
different. See Div. 2, supra. Accordingly, this claim fails.
(c) Trial counsel was not deficient for failing to renew an
objection to the trial court’s refusal to instruct the jury on the lesser
offense of voluntary manslaughter. Under Georgia law, “[i]f there is
any evidence, however slight, to support a properly requested charge
of voluntary manslaughter, then the trial court must give it.”
Thompson v. State, 312 Ga. 254, 257 (2) (862 SE2d 317) (2021)
(citations and punctuation omitted). But when a victim is simply
resisting an unlawful act, as here, a voluntary manslaughter charge
is not warranted. Johnson v. State, 313 Ga. 698, 700 (873 SE2d 123)
(2022) (“[R]esist[ing] [an] unlawful act . . . is not the type of
provocation which demands a voluntary manslaughter charge”
(citation and punctuation omitted)); Nance v. State, 272 Ga. 217, 221
(3) (526 SE2d 560) (2000) (“[A] voluntary manslaughter charge is
not warranted when the only alleged evidence of provocation is the
victim resisting an armed robbery.”); Turpin v. Christenson, 269 Ga.
226, 234 (12) (A) n.6 (497 SE2d 216) (1998) (holding that a “[a]
28
voluntary manslaughter charge [wa]s not warranted” when “[t]he
trial evidence . . . showed that [the defendant] initiated an armed
robbery by pointing a gun at the victim, without provocation, and
then killed the victim when he resisted”). Thus, Appellant’s counsel
was not deficient for failing to make a meritless objection. See
Reddick, 321 Ga. at 85 (3) (b).
(d) Trial counsel was also not deficient for failing to move in
limine to exclude evidence of the 9 mm handgun. Appellant argues
that the handgun had no relevance to a triable issue and should
have been excluded under OCGA §§ 24-4-401 and 24-4-404 (a). He
further argues that the probative value of the evidence was
substantially outweighed by its prejudicial effect of showing
Appellant’s propensity for gun violence under OCGA § 24-4-403.
These arguments fail.
Thomas testified that there were two guns used to commit the
crime: one that was pointed at his head, the other that was pointed
at Turner’s. Though law enforcement officers determined that the
gun they recovered when Appellant was arrested was not used to
29
shoot Turner, it was relevant under OCGA § 24-4-401 because it
showed that Appellant had access to a gun which could have been
the second gun used to commit the crimes. Cf. Jackson v. State, 318
Ga. 393, 400 (1) (d) (i) (897 SE2d 785) (2024) (holding that testimony
from one witness that the appellant held a 9 mm handgun during
the altercation in which the victim was shot and testimony from
another witness that the appellant had a gun of “an unspecified
caliber the day before the shooting” was relevant because it “tended
to show that [the appellant] had access to such a gun[,]” even though
“no bullets were recovered from [the victim’s] body” and it was
“unclear from the wounds what caliber of gun was used[,]” though a
9 mm casing was found at the scene).
Moreover, the trial court would not have abused its discretion
by denying a motion to exclude the evidence of the handgun under
OCGA §§ 24-4-404 (a) or 24-4-403. Appellant asserts that the
handgun should have been excluded because of the “risk of undue
prejudice . . . showing [his] propensity for gun violence,” but our
caselaw shows that evidence that a defendant owned or carried a
30
gun is not necessarily bad character evidence which shows a
propensity for gun violence. See Adams v. State, 318 Ga. 105, 118 (3)
(b) (897 SE2d 396) (2024) (“[G]un ownership and the custom of
carrying a gun do not, by themselves, impute bad character.”
(citation and punctuation omitted)); see also Henderson v. State, 272
Ga. 621, 622 (2) (532 SE2d 398) (2000) (holding that evidence which
showed that the appellant owned guns did not “impute[ ] bad
character” and distinguishing that case from another in which
testimony showed that the accused “had a reputation for carrying
and shooting a gun” (emphasis in original)).
Here, evidence that law enforcement officers recovered a gun
from Whitley when they arrested Appellant at Whitley’s apartment
was probative to show that Appellant once owned, carried, or had
access to a gun that could have been the second gun used in the
crimes. And any unfair prejudice to Appellant was minimal as it was
not likely that the jury found Appellant guilty of the crimes solely
because he was associated with a gun, particularly given the other
compelling evidence of his guilt. See Lyons v. State, 309 Ga. 15, 22-31
23 (5) (843 SE2d 825) (2020) (rejecting the appellant’s argument
that a photograph showing “[the appellant] in possession of a
gun . . . improperly placed his character in issue and was highly
prejudicial” under OCGA §§ 24-4-403 and 24-4-404 (a) because (1)
“[t]he photograph was relevant to show that [the appellant], at some
point, possessed the type of gun used in the crimes at issue” and (2)
“[t]he probative value of this evidence was not substantially
outweighed by its prejudice” because “evidence that a defendant
owned and frequently carried a pistol does not impute to him
generally bad character” (citation and punctuation omitted));
Davidson v. State, 304 Ga. 460, 462-464 (1)-(2) (819 SE2d 452) (2018)
(holding that OCGA § 24-4-403 did not require the exclusion of
evidence showing that investigators recovered “.40-caliber
ammunition” from the appellant’s home when the deceased victim
was shot and killed with a “.40-caliber bullet” because “the
prejudicial impact was limited” given that “the connection between
the ammunition found in the home and the bullet with which [the
victim] was shot was tenuous” because of testimony that a “.40-32
caliber handgun,” also found in the appellant’s home, “was not the
murder weapon” (emphasis in original)).
For these reasons, the unfair prejudicial effect of the evidence,
if any, was slight and did not substantially outweigh the probative
value of the evidence showing that Appellant had access to a gun,
which could have been the second gun used in the robbery. See
OCGA § 24-4-403. Accordingly, trial counsel was not deficient for
failing to move in limine to exclude the evidence. See Williams v.
State, 315 Ga. 797, 806 (2) (884 SE2d 877) (2023) (“[F]ailing to file a
meritless motion is not deficient performance.”).
6. Finally, Appellant claims that he suffered prejudice from
cumulative error. Under State v. Lane, 308 Ga. 10 (838 SE2d 808)
(2020), “we must consider collectively the prejudicial effect, if any,
of trial court errors, along with the prejudice caused by any deficient
performance of counsel.” Jackson, 317 Ga. at 106-107 (4) (citation
and punctuation omitted). To establish cumulative error, Appellant
must show that at least two errors were committed throughout the
course of the trial and that, “considered together along with the
33
entire record, the multiple errors so infected the jury’s deliberation
that they denied [the appellant] a fundamentally fair trial.” Id. at
107 (4).
Here, we have pretermitted two trial court errors: that the trial
court erred in failing to charge the jury on accomplice corroboration
and that the trial court abused its discretion in admitting gang
evidence. Moreover, we have assumed one instance of ineffective
assistance of counsel: that trial counsel was deficient in failing to
request an accomplice-corroboration instruction. The harms
suffered from counsel’s failure to request an accomplicecorroboration instruction and from the trial court’s failure to give
one were identical and minimal. See Zayas v. State, 319 Ga. 402, 414
(4) (902 SE2d 583) (2024) (citation and punctuation omitted). These
harms were minimal because White’s testimony was corroborated
by some of the most incriminating evidence presented at trial:
Whitley’s testimony that Appellant admitted to killing someone and
Thomas’s identification of Appellant in a lineup. Likewise, the harm
from the admission of the gang-related evidence was minimal
34
because the prosecution introduced no evidence of Appellant’s gang
membership other than the testimony of a witness who clarified that
the “gang” was actually a rap organization.
Considering these presumed errors together, and “assuming
without deciding that the evidentiary error and the instructional
error c[an] be aggregated for cumulative-error review,[5]” we
conclude that Appellant cannot show prejudice warranting a new
trial. Moreover, these combined assumed errors did not cause
prejudice given the strong evidence of Appellant’s guilt. Accordingly,
Appellant’s claim fails. See Jackson, 317 Ga. at 104, 106-107 (2) (b),
(4) (concluding that the appellant failed to establish cumulative
prejudice when the Court (1) assumed deficiency for trial counsel’s
failure to “stipulate to [the appellant’s] status as a convicted felon”
(2) assumed deficiency for trial court’s failure to request an
5 As we have explained, Lane
involved only evidentiary issues, which usually are easily
cumulated. We made explicit in Lane that some other types of error
may not allow aggregation by their nature, but that question is not
presented here.
Jackson, 317 Ga. at 107 (4) n.7 (citation and punctuation omitted).
35
accomplice-corroboration instruction and (3) assumed error related
to the trial court’s failure to give an accomplice corroboration
instruction and when “[t]he evidence against [the appellant] was
strong”).
Judgment affirmed. Peterson, CJ, Warren, PJ, and Bethel,
Ellington, McMillian, LaGrua, and Pinson, JJ, concur.
36