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: February 18, 2025
S24A1340. RENDER v. THE STATE.
COLVIN, Justice.
Appellant Ladarius Travon Render appeals his conviction for
felony murder in connection with the death of Kenneth Moore, as
well as his convictions for aggravated assault against other victims,
theft by taking, and theft by receiving stolen property.1 On appeal,
1 The crimes occurred over a period of several days in December 2017.
On July 10, 2018, a Muscogee County grand jury returned a 15-count
indictment against Appellant, Devin Burden, Marquez Clayton, and Kevonta
Daniels. Appellant was charged with committing theft by taking on December
17, 2017, in connection with the theft of a Toyota Tacoma (Count 6). Appellant
was also charged with committing several crimes on December 18, 2017, in
connection with the death of Kenneth Moore, including malice murder (Count
1), felony murder predicated on burglary (Count 2), burglary in the first degree
(Count 3), armed robbery (Count 4), and aggravate assault (Count 5). Finally,
Appellant was charged with committing several crimes on December 25, 2017,
including the aggravated assault of Jai Williams, Jamal Williams, and James
Williams (Counts 8, 9, and 10, respectively), the theft by taking of a Buick
Lucerne (Count 12), and theft by receiving stolen property, namely, a stolen
Acura MDX (Count 15).
Burden’s case was severed from those of the other co-defendants, and he
testified as a witness for the State. The remaining co-defendants (Appellant,
Appellant contends that the trial court erred in denying his motion
for a directed verdict as to the non-murder counts, plainly erred in
admitting testimony about videos that were not admitted at trial,
and plainly erred in permitting a co-defendant to testify about
statements another co-defendant made that incriminated Appellant.
Appellant also argues that trial counsel was ineffective for failing to
move to sever the counts. As explained below, we affirm Appellant’s
Clayton, and Daniels) were jointly tried before a jury from June 17 through 27,
2019. At the close of the State’s case in chief, Appellant moved for a directed
verdict, which the trial court granted only as to Count 4. The jury found
Appellant not guilty of Counts 1 and 6 but guilty of Counts 2, 3, 5, 8, 9, 10, 12, and 15. The jury acquitted Clayton of all charges against him (Counts 1, 2, 3,
5), and the jury found Daniels not guilty of malice murder (Count 1) but guilty
of the other charges against him (Counts 2, 3, 5, 6, 8 through 10, and 12
through 14).
The trial court sentenced Appellant to life in prison with the possibility
of parole for felony murder (Count 2). The court also imposed a 20-year
consecutive sentence for each of the aggravated assaults charged in Counts 8,
9, and 10 and imposed concurrent 10-year sentences for theft by taking (Count
12) and theft by receiving stolen property (Count 15). The court merged the
burglary count (Count 3), as well as the aggravated assault charged in Count
5, with Count 2 for sentencing purposes.
Appellant timely filed a motion for new trial through new counsel on
August 29, 2019, and amended the motion on February 18, 2022. The trial
court denied Appellant’s motion for new trial, as amended, on June 16, 2022,
and entered an amended order denying Appellant’s motion for new trial on
June 22, 2022. Appellant filed a timely notice of appeal from the amended
motion-for-new-trial order. The case was docketed to this Court’s August 2024
term and submitted for a decision on the briefs.
2
felony-murder conviction but reverse his other convictions because,
as to those counts, the evidence was not sufficient under Georgia’s
accomplice-corroboration statute.
1. The trial evidence showed the following. On the night of
December 17, 2017, a red Toyota Tacoma was stolen from a
residence in Columbus, Georgia. The next morning, in response to a
call about a burglary in progress, officers were dispatched to a house
on Curry Street in Columbus, Georgia. Moore lived in the Curry
Street house, and, when officers arrived on the scene, they found
that Moore had been shot and was lying in the rear doorway between
the kitchen and the back porch. The rear doorknob and door were
damaged; the contents of the nightstands in the bedrooms had been
removed and left on the floor; and Christmas presents, Moore’s cell
phone, and the spare keys to the family cars were missing from the
house.
Moore, who was conscious when officers arrived, was taken to
the hospital, where he received surgery and other treatment before
dying two weeks later. The medical examiner testified that Moore
3
had two gunshot entrance wounds, one in the back side of the right
shoulder and one on the left buttock. And the medical examiner
concluded that the gunshots were a “major factor” in Moore
developing blood clots in his legs that dislodged, traveled to his
lungs, and caused his death.
Moore’s across-the-street neighbor, Kaneesha Harris, testified
that, on the day of the shooting, her motion-activated Ring-doorbell
camera captured footage showing that a truck had circled by Moore’s
house a few times before pulling into Moore’s driveway, and that
“three guys” then got out of the truck. Detective Barry Davis and
Officer Jerry Yarbrough, who responded to Moore’s house following
the shooting, testified that they had also seen the Ring-doorbell
footage on a cell phone, and that it showed “three suspects” exiting
a “red truck” or exiting Moore’s house and getting into the “red
truck.” Officer Yarbrough added that the “general appearance” of
the truck was consistent with a Toyota Tacoma.
Co-indictee Devin Burden, who was paralyzed from the waist
down but was able to drive vehicles using “a stick,” testified that he
4
drove the stolen Toyota Tacoma the next day, and that Appellant
had been with him in the truck. Burden said he received the Tacoma
from Appellant’s 14-year-old co-defendant, Kevonta Daniels, while
Appellant was present, and that Burden understood that the
Tacoma must have been used in the Curry Street shooting because
“that’s the only car that [Daniels] was in possession of at the time.”
According to Burden, Daniels told him in Appellant’s presence that
“a burglary was committed on Curry Street,” that “the homeowner
was shot as he came back home and realized his house was being
burglarized,” that the homeowner was shot twice, and that Daniels
“shot him” and Appellant also “fired a shot.” Burden testified that
Appellant did not respond when these statements were made.
Cecil Bergen, a friend of the defendants who was released from
jail on January 4, 2018, and spent time with Appellant and Daniels
later that day, testified that he had heard about “the incident” on
Curry Street. Although Bergen initially testified that he heard about
the incident while he was in jail, he admitted that he had previously
told officers that he learned of the incident from Appellant and
5
Daniels. When asked if he had previously told officers, in reference
to the Curry Street incident, that Appellant and Daniels told him
that “we did some . . . awful [stuff] or some terrible stuff” and that
Appellant also told him that “we caught a body,” Bergen confirmed
that he had made those statements. And when asked, Bergen
confirmed that Appellant and Daniels had in fact made those
statements to him. 2
About a week after the Curry Street shooting, on December 24,
2017, a white Acura MDX was stolen when the owner left it running
in the driveway outside his house in Columbus, Georgia. Burden
testified that the theft of the Acura “just happened one night,” and
that the vehicle was used in the theft of another vehicle, which the
record shows was a Buick Lucerne owned by Jamal Williams
(“Jamal”).
Jamal and his father, James Williams (“James”), testified that,
2 On cross-examination, Bergen changed his story, saying that neither
Appellant nor Daniels ever said anything to him about Curry Street. But on
redirect, when asked again if, on January 4, 2018, Appellant had told him that
“we did something terrible or awful” and “caught a body” “on Curry Street,”
Bergen responded, “Yes, sir.”
6
Jamal’s Buick was stolen from the driveway of James’s residence in
Columbus, Georgia, on Christmas Day 2017. Jamal testified that he
drove the Buick to pick up his son at his father’s house, and that,
when he arrived, he parked the Buick in the driveway, left the keys
in the car, and went inside.
According to Burden, he and Appellant were passengers in the
stolen Acura when Daniels, who was driving the Acura, spotted the
Buick. Burden said that he and Daniels saw that the Buick “was
running[,] so [Burden] knew what was going to take place at the
time.” And according to Burden, he told Daniels “[n]ot to do it,” but
Daniels disregarded the comment. Burden testified that Daniels
hopped out of the Acura and into the Buick, at which point Appellant
took the driver’s seat of the Acura.
James testified that, as Jamal and Jamal’s son were leaving
together out the back door, James saw a man come up the driveway,
get in the Buick, and then back the Buick out of the driveway.
Images captured by James’s home security camera showed a man
getting into the Buick, while a white SUV was present nearby on the
7
street. Jamal testified that, when he got outside, he saw someone
driving away in his Buick toward the local park. And James testified
that he, Jamal, and his other son, Jai Williams (“Jai”), got into
James’s car and followed the Buick.
James and Jamal saw the Buick parked at the local park.
According to Jamal, as they pulled up to the Buick, he saw the driver
get out of the car. And James said he saw the driver, whom he
identified at trial as Daniels, raise a gun toward them. Responding
to the raised gun, James turned the car sharply. Then, James and
Jamal heard gunshots ring out; the car’s glass shattered; and Jamal
was struck by a bullet in his lower back. James testified that he and
Jai, who were armed, got out of the car and returned fire.
Burden testified that Appellant drove him to the park to meet
Daniels, and that, when they arrived, they saw that “a shooting
[was] going [to] tak[e] place” between Daniels and two males who
had exited another vehicle. Although Burden admitted previously
telling officers that he had “fired shots at the other guys . . . in the
other car pointing the guns at the Buick,” he claimed at trial that he
8
and Appellant drove away from the park before any shots were fired
“[t]o go get weapons,” and that everyone was gone when they
returned. When asked if he was “going to leave [his] friend there to
be shot in the park” and if he “just left [Daniels] there to fend for
himself,” Burden responded, “naw, it wasn’t like that,” “[t]he plan
was to come back,” and he had left Daniels there to fend for himself
“[j]ust for a minute.”
Following the gunfight, Jai recovered the Buick, and James
drove Jamal to the hospital. Officers responding to the park shooting
found 9mm and .45-caliber shell casings on the scene, and an
investigation revealed that James and Jai had used .45-caliber guns
in the shootout.
Sometime after the park shootout, officers recovered the stolen
Acura and found inside the center console a Charter Arms .38-caliber revolver with shell casings in the chamber. After testing and
analysis, a ballistics expert determined that the Charter Arms
revolver had fired a .38-caliber metal jacket recovered from Moore’s
body, and that a .32-caliber lead bullet, which was also recovered
9
from Moore’s body, could not have been fired from the same gun.
2. Appellant contends that the trial court erred in denying his
motion for a directed verdict on Counts 8 through 10 (aggravated
assaults of Jai Williams, Jamal Williams, and James Williams),
Count 12 (theft by taking of Jamal Williams’s Buick), and Count 15
(theft by receiving stolen property, namely, the stolen Acura).
According to Appellant, he was entitled to a directed verdict because
the trial evidence was insufficient to support convictions on these
counts under Georgia’s accomplice-corroboration statute, which
provides in relevant part that, in “felony cases where the only
witness is an accomplice, the testimony of a single witness shall not
be sufficient.” OCGA § 24-14-8. We agree with Appellant that his
convictions on these counts must be reversed due to inadequate
accomplice corroboration.3
3 We do not address the sufficiency of the evidence supporting
Appellant’s conviction for felony murder because he has not challenged that
conviction on sufficiency grounds. See Charles v. State, 315 Ga. 651, 654 (2) n.2
(884 SE2d 363) (2023) (“As explained in Davenport v. State, 309 Ga. 385 (846
SE2d 83) (2020), we ended our practice of sua sponte review of the
constitutional sufficiency of the evidence supporting convictions in appeals of
10
“The standard of review for the denial of a motion for a directed
verdict of acquittal is the same as for determining the sufficiency of
the evidence to support a conviction.” Clements v. State, 317 Ga. 772,
783 (1) (896 SE2d 549) (2023) (citation and punctuation omitted). In
assessing the sufficiency of the evidence,
we view all of the evidence presented at trial in the light
most favorable to the verdicts and ask whether any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt of the crimes of which he was
convicted.
Id. at 789 (4) (citation and punctuation omitted).
“[U]nder Georgia law, testimony by an accomplice to a crime
must be corroborated by other evidence implicating the defendant.”
McGarity v. State, 308 Ga. 417, 420 (841 SE2d 718) (2020) (citing
OCGA § 24-14-8). It is well established that evidence corroborating
an accomplice’s testimony “may be circumstantial,” “may be slight,”
and “need not of itself be sufficient to warrant a conviction of the
non-death penalty murder cases, starting with cases docketed to the December
2020 term of this Court.” (citation and punctuation omitted)). See also Golden
v. State, 310 Ga. 538, 540 (1) n.3 (852 SE2d 524) (2020) (declining to sua sponte
review whether the evidence was sufficient under Georgia’s accomplicecorroboration statute).
11
crime charged.” Sauder v. State, 318 Ga. 791, 804-805 (5) (c) (901
SE2d 124) (2024) (citation and punctuation omitted). But
corroborating evidence “must . . . be independent of the accomplice’s
testimony,” “must . . . either directly connect the defendant with the
crime or justify an inference that he is guilty,” and “must corroborate
both the identity of the defendant and the fact of his participation in
the crime.” Id. at 805 (5) (c) (citation and punctuation omitted). “In
other words, . . . there must be some independent evidence tending
to show that the defendant himself was a participant in the crimes.”
Id. (citation and punctuation omitted). “[C]orroboration of only the
chronology and details of the crimes is not sufficient[.]” Id. (citation
and punctuation omitted).
Here, the trial evidence was not sufficient under OCGA § 24-14-8 to support Appellant’s convictions for theft by receiving the
stolen Acura (Count 15), theft by taking of Jamal Williams’s Buick
(Count 12), and aggravated assault of Jai Williams, Jamal Williams,
and James Williams (Counts 8, 9, and 10) because the only evidence
showing that Appellant was present for, and participated in, those
12
crimes came from Burden, who was an accomplice to the crimes. See
Doyle v. State, 307 Ga. 609, 612 (2) (a) (837 SE2d 833) (2020) (“A
person may be charged as an accomplice if he directly commits the
crime, intentionally causes some other person to commit the crime,
intentionally aids or abets in the commission of the crime, or
intentionally advises, encourages, hires, counsels, or procures
another to commit the crime.” (citation and punctuation omitted)).
Specifically, as recounted above, Burden testified that, when
Daniels exited the stolen Acura to steal the Buick, Appellant got into
the driver’s seat of the Acura and then drove Burden to the park to
meet Daniels. Burden further testified that, when he and Appellant
arrived at the park, he saw men from another vehicle pointing guns
at Daniels. And at that point, according to Burden, Burden either
fired shots at the men pointing guns at Daniels or Appellant drove
Burden to retrieve weapons for Daniels’s defense.
The State makes several arguments as to why Burden’s
testimony was adequately corroborated, but none of the evidence
that the State points to supported a reasonable inference that
13
Appellant was present for, and participated in, those crimes. First,
the State argues that testimony from the Williams family that a
white vehicle was present when the Buick was stolen, corroborated
Burden’s story about how the co-defendants were in a white Acura
when they happened upon the Buick. But while such testimony
provided support for one part of Burden’s story — that the person
who stole the Buick arrived in a white Acura — it did not support a
reasonable inference about who might have been inside the Acura
and therefore did not “tend[ ] to show that [Appellant] himself was
a participant in the crimes.” Sauder, 318 Ga. at 805 (5) (c) (citation
and punctuation omitted).
Second, the State points to evidence that, after the park
shooting, officers recovered the Acura and found a gun in its center
console. According to the State, the presence of the gun corroborated
Burden’s testimony that he and Appellant left the park to obtain
weapons. But absent a connection between Appellant and the gun
later found in the Acura, the mere presence of the gun at most
corroborated Burden’s testimony that Burden left the park to obtain
14
weapons. It did not support a reasonable inference that Appellant
was with Burden at the time. Cf. Taylor v. State, 297 Ga. 132, 135
(2) & n.5 (772 SE2d 630) (2015) (holding that phone records showing
that a cell phone placed calls to the victim’s cell phone could not
corroborate accomplice testimony about the defendant’s
participation in crimes where there was no independent evidence
showing either that the phone placing the calls belonged to the
defendant or that the defendant “actually made these phone calls”).
And, importantly, the trial evidence did not show that Appellant
ever possessed the gun found in the Acura. The evidence showed
that the gun found in the Acura was one of two guns used in the
Curry Street shooting and that Appellant was one of two or three
people involved in the Curry Street shooting. But there was no trial
evidence from which the jury could infer that Appellant, as opposed
to Daniels or the unidentified third person, possessed the gun that
was later found in the Acura during the Curry Street shooting. Nor
was there any evidence that Appellant possessed that gun before or
after the Curry Street shooting. As a result, the only reasonable
15
inference from the gun’s presence in the Acura was that someone
involved in the Curry Street shooting (Appellant, Daniels, or the
third unidentified person) had been in the Acura. 4 It did not tend to
show that Appellant was in the Acura, and thus did not show “the
fact of his participation in the crime.” Sauder, 318 Ga. at 805 (5) (c)
(citation and punctuation omitted).
Third, the State points to testimony from Bergen that
Appellant admitted being with Daniels during the Curry Street
shooting, and that Bergen had seen Appellant and Daniels on “six
days” between January 4 and 11, 2018. While Bergen’s testimony
about Curry Street directly connected Appellant to the crimes
committed there on December 18, 2017, those crimes are not at issue
in this enumeration of error. Rather, in this enumeration of error,
Appellant argues that the evidence was insufficient to support his
convictions for crimes allegedly committed on December 25, 2017.
And Bergen’s testimony that Appellant and Daniels were together
4 Notably, Burden testified that Daniels, who had participated in the
Curry Street shooting, was in the Acura when they happened upon the Buick.
16
about a week before those crimes, and that, more than a week after
those crimes, Appellant and Daniels spent time together again did
not support a reasonable inference that Appellant was present for,
or participated in, crimes committed on December 25, 2017. See
Taylor, 297 Ga. at 135 (2) (reversing convictions for inadequate
accomplice corroboration because a third party’s testimony that she
saw the defendant together with the co-defendants “on the evening
after the murder” did “nothing to indicate that [the defendant]
actually participated in the crimes” (emphasis in original)). Cf.
Atkins v. State, 304 Ga. 240, 245 (2) (818 SE2d 567) (2018) (reversing
a statutory-rape conviction under a statute requiring corroboration
of a victim’s testimony because the “only possible evidence”
corroborating the victim’s testimony, which showed “the mere fact”
that, “on occasion, [the victim] spent time at [the defendant’s]
house,” did not “tend[ ] to prove the guilt of the accused by
connecting him with the crime” (citation, punctuation and emphasis
omitted)).
Finally, the State suggests that Burden’s waist-down paralysis
17
supported an inference that Appellant was present for the crimes
because Burden would have been unable, without assistance, to
move to the Acura’s driver’s seat and drive away after Daniels exited
the vehicle to steal the Buick. But there was no trial evidence
indicating that Burden, who testified that he was able to drive
despite his paralysis, would have required assistance to get from the
passenger seat into the driver’s seat. Nor was there any independent
evidence corroborating Burden’s testimony that he was in the
Acura’s passenger seat, rather than in its driver’s seat, when
Daniels exited the vehicle to steal the Buick. Accordingly, Burden’s
paralysis did not itself support a reasonable inference that
Appellant must have been present when the Buick was stolen or
during the subsequent shootout.
In sum, Appellant’s convictions for committing aggravated
assaults on the Williams family members (Counts 8, 9, and 10), theft
by taking (Count 12), and theft by receiving stolen property (Count
15) were based solely on uncorroborated accomplice testimony from
Burden, and the trial court erred in denying Appellant’s motion for
18
a directed verdict on those counts. Accordingly, we reverse those
convictions. See Taylor, 297 Ga. at 135 (2) (reversing a conviction for
inadequate accomplice corroboration under OCGA § 24-14-8’s
statutory precursor); Cowart v. State, 294 Ga. 333, 343 (6) (751 SE2d
399) (2013) (explaining that, “if the evidence of [the defendant’s]
guilt was legally insufficient” under Georgia’s accomplicecorroboration statute, “he could not be retried”). See also Jefferson
v. State, 310 Ga. 725, 726-727 (854 SE2d 528) (2021) (“Once a
reviewing court reverses a conviction solely for insufficiency of the
evidence to sustain the jury’s verdict of guilty, double jeopardy bars
retrial.” (citation and punctuation omitted)).
3. Having reversed Appellant’s convictions for the non-murder
charges, we now turn to his arguments challenging his felonymurder conviction. Appellant first argues that the trial court plainly
erred in permitting Harris, Officer Yarbrough, and Detective Davis
to testify about the contents of video footage captured by Harris’s
Ring doorbell, which, according to the witnesses, depicted three
people and their red truck at Moore’s home on Curry Street.
19
According to Appellant, the trial court erred because the evidence
was clearly inadmissible under the best evidence rule, which
provides that, “[t]o prove the contents of a writing, recording, or
photograph, the original writing, recording, or photograph shall be
required.” OCGA § 24-10-1002. We conclude, however, that
Appellant has not shown plain error.
At trial, Harris, Detective Davis, and Officer Yarbrough were
each questioned about the Ring-doorbell footage. Harris testified
that she showed the footage to detectives after the shooting, but that
she no longer had the footage from her phone because she had
“changed phones since then numerous . . . times.” She further
testified that she believed ADT, her home security provider, had the
full footage, and she said that she had given ADT permission to give
officers any footage they had. Detective Davis testified that he had
seen the Ring-doorbell footage on a cell phone around the time of the
shooting. And he said that the homeowner “was confused about who
was responsible for the video, her or the alarm company”; that
officers contacted both the homeowner’s alarm company and Ring;
20
that the alarm company said Ring was responsible for the video; that
Ring said the homeowner was responsible for the video; and that
officers “were never able to get a copy of it.” Finally, Officer
Yarbrough testified that Harris had shown him the Ring-doorbell
video on her phone after the shooting. When asked if he was able to
get a copy of the video, Officer Yarbrough said that he “believe[d]
[Harris] e-mailed [him] a copy from her phone,” but that, because
“[it had] been two years” since the shooting, he did not recall ever
opening an emailed copy of the video and could not speak to the
current whereabouts of any such copy.
We review a preserved claim that evidence was inadmissible
under the best evidence rule for an abuse of discretion. See Gude v.
State, 306 Ga. 423, 426 (2) (831 SE2d 807) (2019). But where, as
here, an appellant did not object to the admission of evidence at trial,
we review a claim that the trial court erred in admitting the
evidence only for plain error. See Huff v. State, 315 Ga. 558, 564-565
(2) (883 SE2d 773) (2023). To establish plain error, an appellant
must point to an error that was not affirmatively waived,
21
the error must have been clear and not open to reasonable
dispute, the error must have affected his substantial
rights, and the error must have seriously affected the
fairness, integrity or public reputation of judicial
proceedings.
Id. at 565 (2) (citation and punctuation omitted). A trial court’s
admission of evidence is not a “clear or obvious error” unless
admitting the evidence was “a blatant abuse of discretion.” Strother
v. State, 305 Ga. 838, 848 (4) (d) (828 SE2d 327) (2019) (punctuation
omitted). Thus, where the record would have “authorized” the trial
court to admit the evidence if the appellant had raised an objection
at trial, admitting the evidence is not a “clear and obvious error
beyond reasonable dispute.” Westbrook v. State, 308 Ga. 92, 101 (5)
(a) (839 SE2d 620) (2020) (citations and punctuation omitted). See
also Carter v. State, 317 Ga. 689, 694-695 (2) (895 SE2d 295) (2023)
(holding that admitting evidence was not a “clear and obvious [error]
beyond reasonable dispute” where there was a “reasonable
argument” based on the record that the evidence was admissible
(punctuation omitted)).
OCGA § 24-10-1002 (the best evidence rule) provides that
22
proving the contents of a recording generally requires a party to
admit the original recording. Under OCGA § 24-10-1004 (1),
however, other evidence of the contents of the recording is
admissible if “[a]ll originals are lost or have been destroyed, unless
the proponent lost or destroyed them in bad faith.”
Here, the trial court did not commit any error, much less a clear
and obvious error, under OCGA § 24-10-1002 in admitting
testimony about the contents of the Ring-doorbell footage because
the record authorized the trial court to admit the testimony under
OCGA § 24-10-1004 (1). First, the record supported a determination
that the Ring-doorbell footage was lost. Harris’s testimony that the
original Ring-doorbell video was stored on her cell phone and that
she no longer had the video because she had changed cell phones
established that her copy of the video was lost. And although there
was a tension in the testimony of Detective Davis and Officer
Yarbrough as to whether officers ever obtained a copy of the video,
it would not have been “a blatant abuse of discretion,” Strother, 305
Ga. at 848 (4) (d), for the trial court to find that officers never
23
obtained a copy, given that Officer Yarbrough could not recall ever
opening a copy of the video, and given that Detective Davis testified
that officers were never able to obtain a copy despite making efforts
to do so. Second, Appellant has not pointed to any evidence
indicating that bad faith on the part of the State played any role in
making the Ring-doorbell footage unavailable for admission at trial.
Because, on this record, the trial court would have been “authorized”
to admit the challenged testimony under OCGA § 24-10-1004 (1) if
Appellant had raised an objection under OCGA § 24-10-1002 at trial,
Appellant has not established that the trial court committed any
error, much less a “clear and obvious error beyond reasonable
dispute.” Westbrook, 308 Ga. at 101 (5) (a) (citations and punctuation
omitted). Accordingly, this claim of plain error fails.
4. Appellant argues that the trial court plainly erred under
OCGA § 24-10-1002 (the best evidence rule) in allowing Burden and
Investigator Ray Harralson to testify at trial about the contents of a
24
Facebook Live video that was not admitted into evidence.5
Specifically, he challenges the admission of Burden’s and
Investigator Harralson’s testimony that, during Burden’s custodial
interview, Investigator Harralson showed Burden a Facebook Live
video showing Burden and Appellant inside a red Toyota Tacoma
that Burden was driving.
Assuming without deciding that the trial court’s admission of
such testimony was a clear and obvious error of law, Appellant has
not established the third prong of plain-error review, which requires
a showing of prejudice. See Huff, 315 Ga. at 565 (2). In order to
establish prejudice for purposes of plain-error review, a defendant
must show that an error likely affected the outcome of the trial-court
proceeding. See id. And here, Appellant has not made that showing.
The challenged testimony was relevant only to the extent that it
tended to show that Appellant had been with Burden inside the red
5 The State failed to produce the Facebook Live video during discovery.
Several days into trial, however, the State obtained a copy of the Facebook Live
video from Burden’s public Facebook page and gave the defense a copy.
Appellant opposed admission of the video, and the court excluded it.
25
Toyota Tacoma on the day after the Curry Street shooting, and that
evidence was cumulative of other properly admitted evidence,
namely, Burden’s separate testimony from personal experience that,
on the day after the Curry Street shooting, Daniels had given the
Toyota Tacoma to Burden, Burden had driven the truck, and
Appellant had been in the truck with Burden. Further, Appellant
argues that he suffered prejudice because testimony about “[t]he
[Facebook Live] video was the sole piece of evidence” corroborating
Burden’s accomplice testimony that Appellant participated in the
Curry Street shooting. But the record belies this argument, as
Burden’s testimony about Appellant’s involvement in the Curry
Street shooting was adequately corroborated by Bergen, who was
not an accomplice and who testified that Appellant had admitted
doing “something terrible” and having “caught a body” on Curry
Street. Accordingly, this claim fails. See Durden v. State, 318 Ga.
729, 733 (1) (899 SE2d 679) (2024) (no prejudice where the
challenged testimony was cumulative of other admissible
testimony).
26
5. Appellant argues that the trial court plainly erred in
permitting Burden to testify to statements made by Daniels that
implicated Appellant in Moore’s murder because those statements
were inadmissible hearsay. As explained below, this claim fails
because Appellant has not shown a clear and obvious error in
admitting the testimony.
By way of background, Burden testified at trial about
statements Daniels had made to him about “[t]he Curry Street
incident” while Appellant was with them. Specifically, Burden
testified that Daniels had told him that “a burglary was committed
on Curry Street,” that “the homeowner was shot as he came back
home and realized his house was being burglarized,” that the
homeowner was shot twice, and that Daniels “shot him” and
Appellant also “fired a shot.” Burden testified that, when Daniels
talked about what happened on Curry Street, Appellant “was
around[,] but he made no comment about doing it or knowing about
it.” And when asked if Appellant heard what Daniels told Burden
about Curry Street, Burden speculated that “[t]here’s a possibility
27
he didn’t . . . because, I mean, I’m pretty sure he would have
responded.”
Admitting Daniels’s out-of-court statements implicating
Appellant in Moore’s shooting did not constitute a “clear and obvious
[error] beyond reasonable dispute” because there is a “reasonable
argument” based on the record that those statements were
admissible as adoptive admissions. Carter, 317 Ga. at 694-695 (2)
(punctuation omitted). Georgia’s Evidence Code provides that “[a]
statement of which the party has manifested an adoption or belief
in its truth” is considered an adoptive “admission” that “shall not be
excluded by the hearsay rule.” OCGA § 24-8-801 (d) (2) (B). “For
evidence to qualify as a criminal defendant’s adoptive admission
under Rule 801 (d) (2) (B), the trial court must find that two criteria
were met” — (1) “that the statement was such that, under the
circumstances, an innocent defendant would normally be induced to
respond,” and (2) “that there are sufficient foundational facts from
which the jury could infer that the defendant heard, understood, and
acquiesced in the statement.” Wilkins v. State, 308 Ga. 131, 134 (2)
28
(839 SE2d 525) (2020) (citation and punctuation omitted).
Here, the record authorized a determination by the trial court
that, by failing to respond, Appellant adopted Daniels’s statement
that Appellant “fired a shot” at the homeowner during the Curry
Street burglary. First, Daniels’s statement accusing Appellant of
“fir[ing] a shot” at a homeowner during the course of a burglary —
an allegation that Appellant had engaged in serious criminal
conduct — would normally prompt a person in Appellant’s position
to respond if he were innocent. See Wilkins, 308 Ga. at 135 (2) (“[A]
statement referring to a bloody shirt in the trunk of the car . . . as
the shirt ‘we’ used to wipe blood and fingerprints off a gun is the
kind of statement that would normally prompt an innocent person
to clarify that he was not part of the ‘we.’”). Indeed, Burden seemed
to acknowledge this fact, testifying that he would have expected
Appellant to respond to Daniels’s allegation upon hearing it. Second,
although Burden speculated about “a possibility” that Appellant
might not have heard Daniels’s statement, the record supported a
determination that Appellant heard, understood, and acquiesced in
29
the statement because, when asked if anyone was with Daniels
when he shared the information about Curry Street, Burden
responded, “Me, [Appellant,] and [another individual].” And Burden
further testified that, despite being “around” when Daniels made the
statement, Appellant did not “respond[ ]” and “made no comment
about doing it or knowing about it.” See id. at 135 (2) (concluding
that the trial court reasonably concluded that the defendant heard,
understood, and acquiesced in a statement incriminating the
defendant when the defendant was nearby when the statement was
made “[a]nd there [was] no indication that any particular
circumstances impeded [the defendant] from speaking”). Because
Appellant has not shown a “clear and obvious” error in admitting
the testimony, this claim of plain error fails. Carter, 317 Ga. at 694
(2) (punctuation omitted).
6. Finally, Appellant argues that trial counsel was ineffective
for failing to sever the counts charging Appellant with crimes
connected to Moore’s shooting on Curry Street from the other counts,
which charged Appellant with crimes connected to the theft of the
30
Buick and the subsequent park shooting. We conclude, however,
that this claim fails because Appellant has not established deficient
performance.
The record shows that, before trial, Appellant’s original
defense attorney filed a motion to sever Appellant from his codefendants. The original defense attorney was later replaced by
Appellant’s trial counsel. And during a pretrial motions hearing,
trial counsel noted that he would review the original defense
attorney’s severance motion and determine whether the defense
wanted to pursue it. But trial counsel did not raise the motion with
the court again, and the record does not include a court ruling on the
motion.
At the motion-for-new-trial hearing, Appellant’s trial counsel
explained that he knew Appellant’s original defense attorney had
moved to sever the defendants, that he believed that motion had
been denied, and that he did not think “resurfacing the motion” was
worthwhile. He further testified that he made a strategic decision
not to move to sever the charges. He explained that he was confident
31
the jury would be able to separately assess the evidence regarding
each charge, that he believed Appellant had “a very strong case” for
“beating” all the charges because there “was hardly [any] evidence
against him,” and that he thought keeping the charges together
would benefit Appellant because it would prevent the State from
getting “multiple bites at the apple to get a conviction” through
successive prosecutions. He also noted that, although he believed
pretrial that the evidence against Appellant was insufficient,
Bergen, who had not made any prior statements, testified at trial as
“a last minute witness” and “tilted the scales” against Appellant.
To prevail on a claim that trial counsel was constitutionally
ineffective, a defendant must show both deficient performance and
prejudice. See Monroe v. State, 315 Ga. 767, 781 (6) (884 SE2d 906)
(2023) (citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104
SCt 2052, 80 LE2d 674) (1984)). To prove deficient performance, a
defendant must establish that “his attorney performed at trial in an
objectively unreasonable way considering all the circumstances and
in the light of prevailing professional norms.” Pierce v. State, 319 Ga.
32
846, 865 (11) (907 SE2d 281) (2024) (citation and punctuation
omitted). “There is a strong presumption that counsel’s
representation was within the wide range of reasonable professional
assistance.” Id. (citation and punctuation omitted). And
“[o]vercoming that presumption requires an appellant to show that
no reasonable lawyer would have done what his lawyer did, or would
have failed to do what his lawyer did not.” Id. (citation and
punctuation omitted). Establishing prejudice requires a defendant
to “show that there is a reasonable probability that, but for counsel’s
deficiency, the result of the trial would have been different.” Zayas
v. State, 319 Ga. 402, 409 (3) (902 SE2d 583) (2024) (citation and
punctuation omitted).
Here, Appellant argues that trial counsel lacked a strategic
reason for deciding not to pursue a motion to sever the charges, and
that trial counsel failed to do so only because he erroneously believed
that the trial court had already denied a motion to sever the charges.
The record, however, belies this contention. In his testimony at the
motion-for-new-trial hearing, trial counsel carefully distinguished
33
between the decisions not to pursue a motion to sever defendants
and a motion to sever charges. And while his testimony reveals that
he may have been under the erroneous impression that the court
had denied a motion to sever defendants, he did not testify that he
believed the court had denied a motion to sever charges, much less
that he decided not to file such a motion for that reason. Rather, trial
counsel testified that he strategically decided not to move to sever
the charges because he was confident that the jury could separately
assess the evidence as to each charge, he believed Appellant had a
good chance of beating the charges because the evidence against
Appellant was weak, and he thought trying the counts together
would benefit Appellant because it would prevent the State from
getting multiple chances to obtain a conviction through successive
prosecutions on different charges. Trial counsel’s decision was
objectively reasonable. See DeLoach v. State, 308 Ga. 283, 289 (2) (a)
(840 SE2d 396) (2020) (no deficient performance where counsel
chose not to move to sever believing that “his client was better
served by capitalizing on the weaknesses in the State’s case rather
34
than risking giving the State additional time to strengthen its case”
as to certain of the charged offenses). Indeed, the trial record largely
supported trial counsel’s pretrial assessment of the case.
Specifically, the fact that the jury acquitted Appellant of two charges
demonstrates that jurors were able to separately assess the evidence
as to each charge. See Pinkins v. State, 319 Ga. 595, 606 (3) (905
SE2d 596) (2024) (noting that the acquittal of a defendant on one
charge but not others “indicates that the jury was able to distinguish
the evidence and intelligently apply the law to each charge”). And
the State’s evidence as to many of the charges against Appellant was
weak, as demonstrated by the jury’s not-guilty verdicts on two of the
charges and our conclusion above that, as to most of the counts, the
evidence was insufficient under Georgia’s accomplice-corroboration
statute. Accordingly, this claim fails.
7. As explained above, we reverse Appellant’s convictions on
Counts 8, 9, 10, 12, and 15 because the trial evidence was not
sufficient to support his convictions on those counts under Georgia’s
accomplice-corroboration statute. However, because we have
35
rejected Appellant’s arguments challenging his conviction for felony
murder, we affirm his conviction on Count 2.
Judgment affirmed in part and reversed in part. All the
Justices concur.
36