Hurston v. State ( 2021 )

In the Supreme Court of Georgia
Decided: February 15, 2021
S20A1223. HURSTON v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Kelvin Hurston and his co-defendant Dextreion
Shealey were convicted of felony murder and other crimes in
connection with the gang-related shooting death of Daven Tucker.
In this appeal, Appellant contends that the trial court violated his
constitutional right to be present during his trial and that his trial
counsel provided ineffective assistance by failing to request a ruling
on his motion to sever his trial from Shealey’s, failing to request a
ruling on his motion to suppress evidence derived from a search
warrant, failing to request a jury instruction on accomplice
corroboration, and failing to request a proper limiting instruction on
other-act evidence. All of these claims are meritless, so we affirm. 1
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed the following. On the
evening of December 17, 2016, Appellant (who was then 16 years old
1 Tucker was killed on December 17, 2016. In March 2017, a Troup
County grand jury indicted Appellant, Shealey, Charles Lovelace,
Shawndarious Sands, Coty Green, Natori Lee, Dantavious Rutledge, Zachary
Holloway, and Andre Gilliam for a series of allegedly gang-related crimes.
Green, Lee, Rutledge, Holloway, and Gilliam pled guilty and later testified for
the State. In April 2018, Appellant, Shealey, Lovelace, and Sands were
reindicted, individually and as parties, for felony murder based on aggravated
assault, aggravated assault, and participating in criminal street gang activity
in connection with the fatal shooting of Tucker. Appellant was also indicted for
aggravated assault and a gang-activity charge in connection with a shooting at
a Troup County park earlier on the night of the murder, as well as one count
of possession of a firearm during the commission of a felony in connection with
each incident. Shealey, Lovelace, and Sands also were indicted on additional
charges.
Lovelace and Sands then pled guilty, and Appellant and Shealey were
tried together beginning on April 16, 2018. On April 23, the jury found
Appellant guilty of all charges against him. (The jury found Shealey not guilty
of one gang-activity count but guilty of the other charges against him; we
affirmed his convictions in Shealey v. State, 308 Ga. 847 (843 SE2d 864)
(2020).) The trial court sentenced Appellant to serve life in prison for felony
murder, 20 consecutive years for the aggravated assault conviction related to
the park shooting, 20 consecutive years for each of the gang-activity counts,
and five consecutive years for each of the firearm counts; the remaining
aggravated assault count merged. Appellant filed a timely motion for new trial,
which he amended through new counsel in September 2019. After an
evidentiary hearing, the trial court denied the motion in January 2020.
Appellant filed a timely notice of appeal, and the case was docketed to this
Court’s August 2020 term and submitted for decision on the briefs.
2
and known as “K.J.”), Shealey, Charles Lovelace, Shawndarious
Sands, Coty Green, Natori Lee, Lee’s brother Kouri, Dantavious
Rutledge, Zachary Holloway, Andre Gilliam, and Essence Todd – all
of whom were connected to a criminal street gang from West Point
called “4way” – attended a memorial celebration for a friend who
had died.2 After the memorial, the group and a few other people
decided to go to LaGrange. Appellant rode there in Todd’s Hyundai
Sonata, and the others drove in a caravan of cars that included
Shealey’s Ford Mustang and Green’s Honda Accord. Appellant and
a few others in the caravan stopped at a gas station in LaGrange
before proceeding to a nearby public housing complex. A surveillance
video recording of the complex’s parking lot showed that Todd’s
Sonata and the other cars in the caravan were at the complex from
9:53 to 9:59 p.m.
According to Green, there was an ongoing “beef” between 4way
2The State presented testimony from Kouri (whose case was adjudicated
in juvenile court) and an expert on gangs, along with photos and video
recordings, to establish that 4way was a gang, that all of these individuals were
members of or associated with the gang, and that Appellant was associated
with the gang.
3
and a LaGrange group called “Mob,” and the people in the caravan
decided to drive to Granger Park to see if any people associated with
Mob were hanging out there. Surveillance video recordings from the
park showed that at 10:03 p.m., Todd’s Sonata and the rest of the
caravan of cars entered a parking lot where dozens of people had
gathered. According to several witnesses who were in the park,
gunshots rang out from some of the cars in the caravan. Todd saw
Appellant, who was sitting in the back seat of her car, shoot into the
parking lot. Holloway, who was also sitting in the back seat, saw
Appellant use a big, black, MAC-style nine-millimeter gun to shoot.
Another witness in the park heard return fire from some of the
people in the parking lot. 3 The park surveillance video showed that
the caravan left as people in the parking lot ran away. Investigators
later found 39 shell casings in the parking lot, including 13 nine-
millimeter shell casings. Remarkably, no one was injured during the
shooting.
3 Several people in the caravan testified that the people in the parking
lot began shooting first.
4
The surveillance video from the housing complex showed that
at 10:07 p.m., Todd’s Sonata and the rest of the caravan returned to
the complex’s parking lot. Shealey’s Mustang had a bullet hole in
the passenger door, and according to several members of the
caravan, Shealey was angry because his car had been hit. Kouri
received information that Mob members had shot at the caravan; he
relayed that information to the group at the housing complex, and
Green said that he knew the location of a house where some Mob
members lived. Shealey suggested that they go to the house, which
was on Newnan Street, saying, “Somebody’s got to pay. My car just
got shot,” and “What y’all want to do? Somebody’s got to get it.”
Green testified that he, Appellant, Shealey, Lovelace, Sands, Lee,
and Kouri planned to “shoot . . . up” Daven Tucker’s house – the
house on Newnan Street – because Tucker was a member of Mob.
Appellant rode in the Sonata with Sands, Rutledge, and Holloway,
while Shealey, Green, Lovelace, Lee, and Kouri rode in Green’s
5
Accord. 4
The Sonata and the Accord parked near Newnan Street, and
Appellant, Green, Lovelace, and Sands got out of the cars. Green
testified that he had a .40-caliber gun; Appellant had a big, black
MAC-11 handgun; Lovelace carried a nine-millimeter gun or a .380
pistol; and Sands carried a nine-millimeter gun. 5 Green testified
that he, Appellant, Lovelace, and Sands started shooting toward the
house. Green shot once and then got back in the Accord as the three
other men continued to shoot. Green and Lee heard return gunfire
from the direction of the house. 6 Appellant and Sands got back in
the Sonata, and Lovelace got in the Accord. Rutledge and Holloway,
who each remained in the Sonata during the shooting, testified that
after Appellant got back into the car, he said that he had
“performed,” which Rutledge understood to mean that Appellant
4 Gilliam, Todd, and other people in the caravan drove back to West
Point.
Rutledge also testified that Appellant had a big, black MAC-11. Kouri
5
testified that Appellant had a big, black MAC-9, and Lee testified that
Appellant had a TEC-style gun that was “bigger than a pistol.”
6 Lee, Rutledge, Holloway, and Kouri, who had stayed in the cars along
with Shealey, testified that they heard gunshots but did not see who shot.
6
had fired his gun. Both cars then fled.
Tucker, who had been in the front yard of his house, was shot
once in his chest. Emergency responders arrived minutes later,
around 11:00 p.m., and took Tucker to a hospital, where he soon died
from the gunshot wound. Investigators later found 34 nine-
millimeter shell casings, five .380 shell casings, and one .40-caliber
shell casing at the scene.
Appellant and the other eight 4way members and associates
eventually went to a motel in Alabama. Rutledge testified that later
that night, Appellant said, “I killed the n**ger.” Green, Lovelace,
and Kouri were arrested at the motel the next day. 7 In Green’s
Accord, investigators found Green’s .40-caliber gun, an empty box
for nine-millimeter bullets, a nine-millimeter bullet, and a plastic
tray used to hold ammunition. Appellant’s gun was never
recovered.8
7 Lee was arrested on December 20; Rutledge was arrested on December
22; Holloway was arrested about two months later. The record does not specify
when Shealey and Sands were arrested.
8 Several of the 4way members and associates testified that after the
7
In February 2017, investigators interviewed Appellant’s 14-
year-old girlfriend Ashanti Daniel. The interview was video
recorded, and the recording was later played for the jury. Daniel told
investigators that Appellant had said that he was involved in a
shooting and that he “killed the dude.” Appellant was arrested on
February 24.
A few days before his trial began, during a recorded phone call
that Appellant made from jail to two unidentified people, Appellant
said that someone should “jump” Daniel. In addition, the State
presented evidence that on the morning of the murder, Sands sent
Appellant a Facebook message asking, “You got the Tec?” Appellant
responded, “Yeah.” Sands then asked about a pistol, and Appellant
said that it had been traded. The State also presented evidence
under OCGA § 24-4-404 (b) that about three months before the
murder, Appellant sent Facebook messages to an unknown person,
asking to borrow a gun to “shoot somebody[’s] house up.”
shooting, Appellant put his gun in Holloway’s backpack. Holloway testified
that he gave the gun back to Appellant, who then buried it. Kouri also testified
that Appellant said that he buried the gun.
8
Appellant and Shealey did not testify. Appellant’s theory of
defense was that he was not a gang member, was not involved in the
shootings, and was being set up by the 4way members who had
taken plea deals.
Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
with this Court’s waning practice in murder cases, we have reviewed
the record and conclude that, when viewed in the light most
favorable to the verdicts, the evidence presented at trial and
summarized above was sufficient to authorize a rational jury to find
Appellant guilty beyond a reasonable doubt of the crimes of which
he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt
2781, 61 LE2d 560) (1979). See also OCGA § 16-2-20 (defining
parties to a crime); Shealey v. State, 308 Ga. 847, 850 (843 SE2d 864)
(2020) (“It was for the jury to determine the credibility of the
witnesses and to resolve any conflicts or inconsistencies in the
9
evidence.” (citation and punctuation omitted)).9
2. Appellant contends that his right under the Georgia
Constitution to be present during all critical stages of the criminal
proceedings against him was violated when he was excluded from a
conference room meeting during which the trial court questioned
Daniel about whether she would testify at trial. Because Appellant
acquiesced to his absence from the meeting, this claim fails.
(a) When one prosecutor called Daniel to testify during the
trial, the other prosecutor immediately asked the court if counsel
could approach the bench. After a bench conference, which was not
transcribed, the court asked the jury to leave the courtroom. The
jury left; Appellant (and Shealey) remained. A prosecutor then said
that Daniel was in the hallway outside the courtroom but refused to
come in to testify because she was “scared.” The prosecutor
suggested that Daniel was unavailable to testify because she was
9 We remind litigants that this Court will end its practice of considering
the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that begins in December 2020. See Davenport v.
State, 309 Ga. 385, 399 (846 SE2d 83) (2020). The Court began assigning cases
to the December term on August 3, 2020.
10
intimidated by the jail call during which Appellant said that
someone should “jump” her, and the prosecutor argued that the
video recording of Daniel’s interview with investigators should be
admitted into evidence under OCGA § 24-8-804 (b) (5).10 Appellant’s
trial counsel agreed that the recording of the interview should be
admitted. The trial court said that it first needed to determine
whether Daniel was unavailable, and that “we need to get her in
here and get her on the stand and I need to ask her if she’s going to
testify.” A prosecutor asked if the court could do that in chambers,
and the court told the prosecutors to bring Daniel into a conference
room. The prosecutor said that Daniel’s mother should also come in
to “testify to how scared [Daniel] is.” The court replied, “All right,”
and told the lawyers and the court reporter to come into the
conference room.
At the beginning of the conference room meeting, which was
10 OCGA § 24-8-804 (b) (5) says that “[a] statement offered against a
party that has engaged or acquiesced in wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a witness” shall not be
excluded by the hearsay rule “if the declarant is unavailable as a witness.”
11
transcribed, the trial court said that it, the two prosecutors,
Appellant’s counsel, Shealey’s counsel, Daniel, and Daniel’s mother
were present. The court confirmed that Daniel had received a
subpoena and explained that it was a court order to testify and that
the State wanted her to testify. The court said that the prosecutors
indicated that she did not want to testify; Daniel responded, “Yes.”
The court explained that it could not make her testify but that it
could hold her in contempt if she refused and then asked if she would
testify. Daniel said that she would. The court told her that the
lawyers would ask her questions in the courtroom and asked if
Daniel understood that the defendants, the jury, and other people
would be there. Daniel said, “Yes.” The court asked if she was willing
to tell the truth, and Daniel responded, “Yes.”
A prosecutor then noted that if Daniel testified that she did not
remember certain events, the court would need to revisit the issue
of whether she was available as a witness. After a brief discussion
about how the lawyers might handle that issue, the court said that
the parties could deal with it later if Daniel refused to testify. The
12
judge and the lawyers then returned to the courtroom, where
Appellant was present; the jury was brought in; and Daniel took the
witness stand. Shortly after a prosecutor began questioning her,
Daniel covered her face with her hands. The court reminded her that
she was under subpoena, that “[w]e talked about that before,” and
that she could be held in contempt for refusing to testify. Daniel then
testified; her testimony turned out to be favorable for Appellant. 11
Later, after the jury was excused for the day, the trial court
asked the lawyers if there was “anything we need to put on the
record,” and a prosecutor responded, “You know, we took the one
potential witness back.” The court said, “Yeah, and the defendants
weren’t back there for that,” explaining that the court did not
include the defendants in the meeting because there was an
implication that “there was some kind of threat.” The prosecutor
said to the defense lawyers, “I’m sure that was done with the
11 Contrary to her recorded statement to investigators before Appellant’s
arrest, Daniel testified at trial that Appellant did not tell her that he was
involved in a shooting or that he had killed someone. She claimed that she lied
to the investigators because she was mad at Appellant for cheating on her.
13
knowledge of each of your clients,” and the court said, “I mean,
counsel was back there and nobody objected.” Shealey’s counsel
replied, “Absolutely. We have no issue with that”; Appellant’s
counsel did not separately respond.
At the hearing on Appellant’s motion for new trial, trial counsel
testified that when he returned to the courtroom after the meeting
with Daniel, he explained to Appellant that Daniel was going to
testify but that he “didn’t go into details” of what was discussed in
the conference room. In its order denying the motion, the trial court
ruled that Appellant acquiesced to his counsel’s waiver of his right
to be present.
(b) Appellant argues that his absence during the conference
room meeting violated his state constitutional right to be present
during his trial. “‘This Court has long recognized that a criminal
defendant has a state constitutional right to be present during all
critical stages of the proceedings against him.’” Howard v. State, 307
Ga. 12, 21 (834 SE2d 11) (2019) (citation omitted). Pretermitting
whether the meeting with Daniel was a critical stage at which
14
Appellant had a right to be present, he acquiesced to his counsel’s
waiver of his presence.
A defendant may relinquish his right to be present if he
personally waives it in court; if his counsel waives it at his express
direction; if his counsel waives it in open court while he is present;
or if his counsel waives it and he subsequently acquiesces to the
waiver. See id. Acquiescence may occur when “‘counsel makes no
objection and a defendant remains silent after he or she is made
aware of the proceedings occurring in his or her absence.’” Burney v.
State, 299 Ga. 813, 820 (792 SE2d 354) (2016) (citation omitted). The
question is whether the defendant “had sufficient information
concerning [the proceeding occurring in his absence] to fairly
construe his silence in this regard as acquiescence.” Id.In this case, the record shows that Appellant was present when
Daniel failed to enter the courtroom after she was called to testify;
when a prosecutor said that Daniel was refusing to testify because
Appellant’s threat had intimidated her and argued that the
recording of Daniel’s interview with investigators should be
15
admitted into evidence; when the trial court announced that it was
going to question Daniel in a conference room about whether she
would testify; when the court told the lawyers, the court reporter,
and Daniel’s mother to come into the conference room; and when the
judge, lawyers, and court reporter left the courtroom to go to the
conference room. 12 When they returned, Appellant’s trial counsel
explained to him that Daniel was going to testify. Appellant was also
present when, after Daniel took the stand and again refused to
testify, the court reminded her that they had already discussed that
she was under subpoena and could be held in contempt if she did not
testify. Moreover, when the trial was ending for the day, the court
and a prosecutor discussed in Appellant’s presence the court’s
questioning of Daniel outside the courtroom and the fact that
neither the defendants nor their trial counsel had objected to that
12Appellant’s assertion in his brief here that most of this discussion took
place at the bench is not supported by the trial transcript, which shows that
after Daniel was called to testify and the lawyers approached the bench, “a
discussion was held off the record,” but the trial court then went back on the
record to ask the jury (but not the defendants) to leave, after which the court
and lawyers discussed Daniel’s refusal to testify before moving to the
conference room.
16
procedure.
Despite Appellant’s presence during all of these discussions
about the conference room meeting, there is no indication in the
record that he expressed any concern or voiced any objection to his
counsel or the trial court regarding his absence. Instead, the first
time that he contended that his right to be present was violated was
in his amended motion for new trial, which was filed nearly a year
and a half after the trial. Under these circumstances, the trial court
did not err in ruling that Appellant acquiesced to his absence from
the court’s meeting with Daniel. See Scudder v. State, 298 Ga. 438,
439-440 (782 SE2d 638) (2016) (holding that the defendant
acquiesced to his absence when the trial court spoke with a witness
in chambers about her refusal to testify, because the defendant
knew that he had been excluded from the meeting and the nature of
the discussion but did not object or ask for the transcript of the
meeting to be provided to him). See also Howard, 307 Ga. at 22
(concluding that the defendant acquiesced to his absence when the
trial court questioned a juror in chambers, because the defendant
17
was present but failed to object when the court later explained that
the in-chambers meeting had occurred, laid out the substance of the
juror’s testimony, and announced the juror’s removal); Jackson v.
State, 278 Ga. 235, 237 (599 SE2d 129) (2004) (concluding that the
defendants acquiesced to their absence from an in-chambers
conference, because their counsel did not object and the defendants
remained silent when the issue discussed during the conference was
discussed again by counsel and the trial court while the defendants
were present).
3. Appellant also contends that his trial counsel provided
ineffective assistance in four ways. To succeed on these claims,
Appellant must prove that his counsel’s performance was
professionally deficient and that he suffered prejudice as a result.
See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80
LE2d 674) (1984). To establish deficient performance, Appellant
must show that his lawyer performed his duties in an objectively
unreasonable way, considering all the circumstances and in the light
of prevailing professional norms. See id. at 687-690.
18
This is no easy showing, as the law recognizes a “strong
presumption” that counsel performed reasonably, and
Appellant bears the burden of overcoming this
presumption. To carry this burden, he must show that no
reasonable lawyer would have done what his lawyer did,
or would have failed to do what his lawyer did not. In
particular, “decisions regarding trial tactics and strategy
may form the basis for an ineffectiveness claim only if
they were so patently unreasonable that no competent
attorney would have followed such a course.”
Brown v. State, 302 Ga. 454, 457 (807 SE2d 369) (2017) (citations
omitted). To establish prejudice, Appellant must prove that there is
a reasonable probability that, but for his counsel’s deficiency, the
result of the trial would have been different. See Strickland, 466
U.S. at 694. We need not address both components of the Strickland
test if Appellant makes an insufficient showing on one. See id. at
697.
(a) Appellant claims first that his trial counsel provided
ineffective assistance by failing to request a ruling on his pretrial
motion to sever Appellant’s and Shealey’s trials. Appellant has
failed to prove either component of this ineffectiveness claim.
In a murder case where the death penalty is not sought, the
trial court has broad discretion to grant or deny a motion for
19
severance. See Lupoe v. State, 300 Ga. 233, 241 (794 SE2d 67)
(2016).
In ruling on a severance motion, the court should
consider: (1) the likelihood of confusion of the evidence
and law; (2) the possibility that evidence against one
defendant may be considered against the other defendant;
and (3) the presence or absence of antagonistic defenses.
Id. at 241-242 (citation and punctuation omitted). The joint trial in
this case involved only two co-defendants; Appellant was tried for
almost the same crimes as Shealey with respect to the fatal shooting
(along with additional crimes related to the prior park shooting); the
evidence and the law were substantially the same for both
defendants; the State’s theory was that they and their co-indictees
acted together to commit the crimes; Appellant has identified no
evidence admitted against Shealey that was not also admissible
against Appellant; and the trial court instructed the jury to
determine the guilt or innocence of each defendant separately. See
id. at 242.
Appellant asserts that severance would have been required
because the evidence of his affiliation with 4way was weaker than
20
the evidence that Shealey was a member of the gang. As we have
explained, however, to obtain a severance “it is not enough for the
defendant to show that . . . the evidence against a co-defendant is
stronger.” Nicholson v. State, 307 Ga. 466, 474 (837 SE2d 362) (2019)
(citation and punctuation omitted). Moreover, the evidence that
Appellant was involved in the shootings was actually stronger than
the evidence of Shealey’s involvement. See Walter v. State, 304 Ga.
760, 764 (822 SE2d 266) (2018).
Appellant also asserts that the trials should have been severed
because Shealey’s defense theory – that he was merely present in
Green’s car when Appellant and other members of 4way shot toward
Tucker – was antagonistic to Appellant’s defense that he was not
involved in that shooting (or the park shooting). However,
the mere presence of antagonistic defenses is insufficient
to require severance in a non-death penalty case; instead,
the defendant must show that “considering these
antagonistic defenses, a joint trial was so prejudicial as to
amount to a denial of his right to due process.”
Palmer v. State, 303 Ga. 810, 815 (814 SE2d 718) (2018) (citation
omitted). In an attempt to demonstrate this level of prejudice,
21
Appellant points primarily to the opening statements, during which
Shealey’s counsel said that Appellant was “a killer” and that “the
only person that’s going to take the stand is going to be Mr.
Shealey. . . . because he is asserting his innocence.” But any
prejudice from those comments was limited by the trial court’s
instructions to the jury that the opening statements were not
evidence and that in reaching its verdicts, the jury could not consider
the defendants’ decisions not to testify.13 Thus, Appellant has not
shown that Shealey’s defense theory required a severance of the
trials. See, e.g., Walter, 304 Ga. at 763 (concluding that severance
was not required where the co-defendants blamed the defendant for
the shooting while asserting that they were not present during or
did not participate in the murder); Palmer, 303 Ga. at 815 (holding
that severance of a joint trial was not required where the defendant
claimed that he did not commit the crimes while his co-defendant
claimed that the defendant pressured him into robbing the victims).
13 In fact, as mentioned above, Shealey, like Appellant, ultimately elected
not to testify.
22
For these reasons, if Appellant’s trial counsel had requested a
ruling on the severance motion, the trial court would not have
abused its discretion by denying it. Appellant has therefore failed to
show deficient performance or prejudice, so this ineffectiveness
claim fails. See, e.g., Lupoe, 300 Ga. at 242-243.
(b) Appellant claims next that his trial counsel was ineffective
for failing to obtain a ruling on his motion to suppress evidence
derived from a search warrant for Appellant’s Facebook account. We
disagree.
Shortly after the shootings, investigators learned through
interviews with several witnesses that a person known as “K.J.” was
involved in the crimes. Five days after the shootings, an investigator
obtained a search warrant for a Facebook account that belonged to
“John Doe A[K]A ‘K.J.’” The search warrant listed the crime of
aggravated assault as the basis for the warrant, and an attachment
to the warrant described the many things to be seized, which
23
included a wide range of data from the account. 14 The execution of
the search warrant revealed Facebook messages between “K.J.” and
Daniel, which led investigators to interview Daniel. During the
interview, she identified K.J. as Appellant, and he was later located
and arrested.
Before trial, Appellant’s counsel filed as part of an omnibus
motion a “preliminary motion to suppress” evidence “illegally seized
from [Appellant],” generally asserting, among other things, that the
search warrant lacked sufficient particularity. The trial court did
not rule on the motion, and counsel never requested a ruling. At
trial, the court admitted several items of evidence collected as a
result of the search warrant for Appellant’s Facebook account,
14 The data to be seized included, among other things, all contact
information; photos and photo metadata; neoprints, links to videos, photos,
articles, and other items; notes and postings; friend lists and groups;
comments; search history; communications and messages; log data including
all IP addresses that logged into the account; information about the use of
Facebook Marketplace; length of service and types of service and payments;
privacy and account settings; records pertaining to communications between
Facebook and any person regarding the user or the user’s account; location
history; websites visited while logged into Facebook; website or mobile
applications registered using Facebook credentials; and Instagram,
Messenger, or What’s App account usernames.
24
including the messages between Appellant and Sands about the
TEC and pistol on the day of the shootings; messages and photos
related to the evidence admitted under OCGA § 24-4-404 (b) showing
that Appellant asked to borrow a gun to shoot up a house about three
months before the murder; and other messages and photos linking
Appellant to the 4way gang.
Appellant claims that all of the evidence garnered from the
search warrant should have been suppressed because the warrant
was overbroad and therefore violated the Fourth Amendment’s
particularity requirement. See Bryant v. State, 301 Ga. 617, 619
(800 SE2d 537) (2017) (explaining that a search warrant that does
not particularly describe the things to be seized violates the Fourth
Amendment). Specifically, he argues that the warrant improperly
required the disclosure of virtually all of his Facebook data without
the data being limited to the date of the aggravated assault that
served as the basis for the warrant.
In support of this argument, Appellant relies primarily on
United States v. Blake, 868 F3d 960 (11th Cir. 2017), in which a
25
panel of the United States Court of Appeals for the Eleventh Circuit
said in dicta that two search warrants issued after the defendant
was arrested for participation in a conspiracy to prostitute minors
“unnecessarily” required the “disclosure to the government of
virtually every kind of data that could be found in” the defendant’s
Facebook account. Id. at 974. After observing that the search
warrants “should have requested data only from the period of time
during which [the defendant] was suspected of taking part in the
prostitution conspiracy,” id., the court expressly pretermitted
deciding whether the warrants violated the Fourth Amendment,
holding instead that the evidence they produced fell within the good-
faith exception to the exclusionary rule set forth in United States v.
Leon, 468 U.S. 897 (104 SCt 3405, 82 LE2d 677) (1984). See Blake,
868 F3d at 974-975.15
15 In Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992), this Court held
that Georgia statutory law does not recognize Leon’s exception to the
exclusionary rule for evidence obtained by officers relying in good faith upon
the validity of a search warrant that is later found to be invalid. See id. at 577.
We recently explained that Gary’s reasoning was unsound and declined to
extend it to other exclusionary rule exceptions, while deeming it unnecessary
26
Eleventh Circuit holdings (much less dicta), even on federal
law questions, are not binding on Georgia courts. See Lofton v. State,
Case No. S20A1101, slip op. at 16 n.6 (decided Feb. 15, 2021). And
in any event, Blake did not involve circumstances like this case,
where a murder suspect’s identity and location were unknown to
investigators at the time the search warrant was issued. Appellant
does not cite, and we have not found, any United States Supreme
Court or Georgia appellate precedent that clearly holds that a search
warrant requesting a wide range of data from a defendant’s social
media account violates the Fourth Amendment under these
circumstances. See Brannon v. State, 298 Ga. 601, 612 (783 SE2d
642) (2016) (“In describing the items to be seized pursuant to a
search warrant, the degree of specificity required is flexible and will
vary with the circumstances involved.” (citation and punctuation
omitted)).16
to determine whether Gary’s specific holding should be overruled. See Mobley
v. State, 307 Ga. 59, 73-75 & n.21 (834 SE2d 785) (2019).
16 Indeed, less than a year after Blake (and four months after Appellant’s
trial), another Eleventh Circuit panel held in United States v. Alford, 744 Fed.
27Given the lack of binding appellate precedent on this issue,
Appellant has not carried his burden of showing that his trial
counsel’s failure to press for a ruling on the particularity of the
Appx. 650 (11th Cir. 2018), that a trial court properly denied a defendant’s
motion to suppress evidence garnered from the execution of a search warrant
that requested “nearly every kind of data that could be found in [the
defendant’s] Google account,” because investigators did not know the
defendant’s identity when the warrant was issued and “the information
requested was all potentially incriminating because it could have identified the
[suspect].” Id. at 652-653. And even putting aside the issue of Appellant’s then-
unknown identity and location in this case, we note that at the time of his trial,
some courts in other jurisdictions had upheld search warrants requesting
broad disclosure of data from a defendant’s social media account, see, e.g.,
United States v. Ulbricht, 858 F3d 71, 100-104 (2d Cir. 2017), abrogated on
other grounds by Carpenter v. United States, ___ U.S. ___ (138 SCt 2206, 201
LE2d 507) (2018); United States v. Pugh, Case No. 1:15-CR-00116-NGG, 2015
WL 9450598, at *26-27 (E.D.N.Y. Dec. 21, 2015), although some others had
not, see, e.g., People v. Osejo, Case No. A143092, 2017 WL 2351439, at *8 (Cal.
App. May 31, 2017) (unpublished). Whether a search warrant for a defendant’s
entire social media account meets the Fourth Amendment’s particularity
requirement continues to be an evolving area of the law, which neither the
United States Supreme Court nor our State’s appellate courts has yet resolved.
See, e.g., Alford, 744 Fed. Appx. at 652-653; United States v. Hamilton, Case
No. 6:18-CR-57-REW-10, 2019 WL 4455997, at *4-6 (E.D. Ky. Aug. 30, 2019)
(saying in dicta that a warrant authorizing a search of essentially all of the
defendant’s Facebook data for a 10-month period was overbroad because the
warrant should have targeted certain categories, but holding that the warrant
fell into the Leon good-faith exception to the exclusionary rule); United States
v. Liburd, Case No. 17-CR-296 (PKC), 2018 WL 2709199, at *2-3 (E.D.N.Y.
June 5, 2018) (holding that a search warrant was not overbroad in allowing
the FBI to search the entire contents of the defendant’s Facebook account
because there was probable cause to believe that the account contained
evidence of criminal activity and noting that “‘avoiding the intrusiveness of a
search [of a Facebook account] while maintaining its efficacy is largely
infeasible’” (citation omitted)).
28
Facebook search warrant was patently unreasonable, and this claim
fails. See Sawyer v. State, 308 Ga. 375, 383 (839 SE2d 582) (2020)
(“[T]rial counsel’s failure to raise a novel legal argument does not
constitute ineffective assistance of counsel.”); Esprit v. State, 305 Ga.
429, 438 (826 SE2d 7) (2019) (“A criminal defense attorney does not
perform deficiently when he fails to advance a legal theory that
would require ‘an extension of existing precedents and the adoption
of an unproven theory of law.’” (citation omitted)). 17
(c) Appellant claims that his trial counsel should have
requested a jury instruction on the requirement for corroboration of
accomplice testimony. See OCGA § 24-14-8. Even assuming that
counsel performed deficiently in this respect, Appellant has failed to
show prejudice.
17 As Appellant points out in his brief, the search warrant cited an
incorrect section of the Georgia Code for the crime of aggravated assault.
However, “[m]ere typographical or clerical errors do not ordinarily provide a
basis to suppress evidence.” Dent v. State, 303 Ga. 110, 117 (810 SE2d 527)
(2018). See also OCGA § 17-5-31. Thus, Appellant’s trial counsel did not
perform deficiently by failing to challenge the search warrant on this ground
either. See Keller v. State, 308 Ga. 492, 499 (842 SE2d 22) (2020) (explaining
that trial counsel cannot be found deficient for failing to file a meritless motion
to suppress evidence).
29
“[I]t is well-settled that an accomplice’s testimony may be
corroborated by the testimony of another accomplice.” Jordan v.
State, 307 Ga. 450, 455 (836 SE2d 86) (2019). The five co-indictees
who testified that Appellant was involved in the shootings – Green,
Lee, Rutledge, Holloway, and Gilliam – substantially corroborated
each other’s testimony. Their testimony was also corroborated by
other evidence, including Appellant’s Facebook message to Sands
about the TEC handgun on the day of the murder, Todd’s testimony
that Appellant shot from her car into the Granger Park lot, and his
admission to Daniel that he was involved in a shooting and had
killed someone.
Appellant argues that his trial counsel’s failure to request an
accomplice-corroboration instruction was prejudicial because a
prosecutor mentioned in closing argument that the testimony of a
single witness is sufficient to establish a fact. But the trial court did
not give the jury a single-witness instruction, and the court charged
the jury that it is the court’s duty to instruct on the law that applies
to the case. In sum, Appellant has not shown a reasonable
30
probability that his trial counsel’s failure to request an accomplice-
corroboration instruction affected the outcome of his trial. See id.;
Robinson v. State, 303 Ga. 321, 324-326 (812 SE2d 232) (2018); Huff
v. State, 300 Ga. 807, 813 (796 SE2d 688) (2017).
(d) Finally, Appellant claims that his trial counsel provided
ineffective assistance by failing to request a proper limiting
instruction on the other-act evidence. At a pretrial hearing, the trial
court ruled over the objection of Appellant’s counsel that Appellant’s
messages to an unknown person on Facebook asking to borrow a gun
to “shoot somebody[’s] house up” about three months before Tucker’s
murder would be admissible as other-act evidence for the purposes
of showing intent and plan under OCGA § 24-4-404 (b).18 At trial,
before that evidence was presented to the jury, the court instructed
in pertinent part that the evidence was admitted “for the limited
18OCGA § 24-4-404 (b) says in pertinent part:
Evidence 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 . . . intent [or]
plan[.]
31
purpose of the State’s trying to show intent and trying to show a
plan” and that the jury could not consider the evidence for any other
purpose or as evidence that Appellant “would be of a character that
he would commit the crimes alleged in the indictment.”
Appellant contends that his trial counsel should have objected
to the limiting instruction on the ground that the other-act evidence
was not admissible for the purpose of showing a plan. But even
assuming (without deciding) that the other-act evidence was not
admissible for that particular purpose, 19 and that trial counsel was
deficient in this respect, Appellant has not established prejudice.
The trial court also admitted the evidence for the purpose of showing
intent, and Appellant does not challenge the admission or the jury’s
consideration of the evidence for that purpose. 20 This evidence,
which was admissible for one purpose and came with a limiting
instruction that it could not be considered as evidence of Appellant’s
19 We discussed two different types of “plan” evidence in Heard v. State,
309 Ga. 76, 87-88 & n.16 (844 SE2d 791) (2020).
20 Because Appellant does not dispute the admission or consideration of
this evidence to show his intent, we render no opinion on those issues.
32
character, was tangential to the strong direct evidence of Appellant’s
involvement in the shootings. Accordingly, there is no reasonable
probability that the outcome of Appellant’s trial would have been
different had the jury not been instructed that it could consider the
evidence for the additional purpose of showing a plan. See, e.g.,
Armstrong v. State, Case No. S20A1364, 2020 WL 7481747, at *7
(decided Dec. 21, 2020) (holding that trial counsel was not ineffective
for failing to seek a limiting instruction regarding the purpose for
which evidence was admitted under OCGA § 24-4-404 (b), because
the appellant did not show that the absence of the instruction
probably affected the outcome of his trial); Davis v. State, 302 Ga.
576, 586 (805 SE2d 859) (2017) (concluding that trial counsel was
not ineffective for failing to request a limiting instruction regarding
evidence of the appellant’s prior altercations with others, because
the appellant could not show prejudice in light of the “strong
evidence against him at trial”).
Appellant also argues that his trial counsel should have
requested that the trial court give a second limiting instruction
33
during its final jury charge. But he cites no pertinent authority that
would have required the trial court to twice provide such an
instruction, and we have found none. Cf. Brewner v. State, 302 Ga.
6, 15-16 (804 SE2d 94) (2017) (concluding that trial counsel was not
ineffective for failing to request a limiting instruction
contemporaneous with the admission of evidence under OCGA § 24-
4-404 (b), where the trial court gave such an instruction during the
final charge). Appellant therefore has not shown that his trial
counsel performed deficiently in this respect. This claim of
ineffective assistance, like the others, fails. 21
Judgment affirmed. All the Justices concur.
21 Appellant also asserts that the cumulative effect of his trial counsel’s
alleged errors prejudiced the outcome of his trial. But even considering the
combined effect of the deficiencies assumed in Division 3 (c) and (d), we
conclude that Appellant has not demonstrated a reasonable probability that
the outcome of his trial would have been different in the absence of the
deficiencies alleged. See, e.g., Bentley v. State, 307 Ga. 1, 11 (834 SE2d 549)
(2019); Toomer v. State, 292 Ga. 49, 59 (734 SE2d 333) (2012).
34