MUSE v. THE STATE (Three Cases) ( 2023 )

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 21, 2023
S23A0316. MUSE v. THE STATE.
S23A0373. HARRIS v. THE STATE.
S23A0427. HARRIS v. THE STATE.
BOGGS, Chief Justice.
Appellants Durell Muse, Darious Harris, and Jujuane Harris,
Darious’s brother, appeal from their convictions following a joint
trial for malice murder and other crimes stemming from the
shooting death of Antonio Clements, the shooting of Clements’
girlfriend, Kendra Clopton, and the firing of shots that struck a
vehicle occupied by Silento Bell and Yolanda Davis. On appeal, all
three Appellants challenge the sufficiency of the evidence to support
certain of their convictions; contend that the trial court violated the
continuing witness rule by allowing the jury to watch surveillance
videos in the jury room during deliberations; and claim that the trial
court violated certain of their rights when addressing notes from the
jury. In addition, Muse and Darious contend that the trial court
erred by failing to exclude evidence extracted from Muse’s cell
phone; Muse contends that his trial counsel was ineffective in failing
to raise a hearsay objection to testimony from a State’s witness;
Darious and Jujuane contend that the trial court erred in failing to
sever their trials; and Darious contends that he is entitled to a new
trial because the trial court erred in failing to exclude the testimony
of a State’s witness and because the State represented during the
motion for new trial proceedings that the record was incomplete.1
1 Clements and Clopton were shot on September 23, 2014. On January
2, 2015, a Fulton County grand jury indicted all three Appellants, along with
Tequila Forehand and Frederick Rosenau, for participation in criminal street
gang activity (Count 1); malice murder (Count 2); criminal attempt to commit
murder based on the shooting of Clopton (Count 3); two counts of felony
murder, one count predicated on aggravated assault (Count 4) and the second
count predicated on participation in criminal street gang activity (Count 5);
four counts of aggravated assault committed against Clements (Count 8),
Clopton (Count 9), Bell (Count 10), and Davis (Count 11); two counts of
conspiracy to commit murder (Counts 12 and 13); criminal damage to property
(Count 14); and possession of a firearm during the commission of a felony
(Count 15). Forehand and Muse alone were indicted for felony murder
predicated on possession of a firearm by a convicted felon (Counts 6 and 7,
respectively) and possession of a firearm by a convicted felon (Counts 16 and
17, respectively).
At the beginning of a joint trial, the trial court announced that Rosenau
would be tried separately. The record does not reflect whether he has been
tried. At the joint trial for the Harris brothers, Muse, and Forehand from April
2
We conclude that the evidence was sufficient to support
Appellants’ convictions; that the trial court did not violate the
continuing witness rule; that the trial court did not violate rights of
Appellants when addressing certain notes from the jury; and that
any violation of Appellants’ rights when addressing other notes was
harmless. We also conclude that the trial court did not err by failing
24 to May 2, 2017, a jury found the four co-defendants guilty on all counts
against them, except Count 14 (criminal damage to property) on which the trial
court directed a verdict. On May 22, 2017, the trial court sentenced all three
Appellants to life in prison for malice murder, with Muse’s sentence to be
served without the possibility of parole; a consecutive term of 30 years in prison
for criminal attempt to commit murder; a consecutive term of 15 years in prison
for participation in criminal street gang activity; and terms of 20 years in
prison on two aggravated assaults, with Muse’s sentences to run consecutively.
Muse and Darious Harris were sentenced to a consecutive term of five years in
prison for possession of a firearm during the commission of a felony, while
Jujuane Harris received a five year probated sentence, to be served
consecutively. Muse was sentenced to a consecutive term of five years in prison
for possession of a firearm by a convicted felon. The felony murder convictions
against all three Appellants were vacated by operation of law. The trial court
merged Counts 8 and 9 (aggravated assaults against Clements and Clopton,
respectively) and Counts 12 and 13 (both charging conspiracy to commit
murder) for purposes of sentencing.
All three Appellants timely filed motions for new trial, which were
amended with new counsel on various dates through 2021. After hearings in
2021, the trial court denied the amended motions in separate orders entered
in September and October 2022. All three Appellants filed timely notices of
appeal. Muse and Darious Harris’s cases were docketed in this Court to the
term beginning in December 2023, while Jujuane’s case was docketed to the
April 2023 term. All three cases were submitted for decisions on the briefs.
There is no appeal by Forehand currently before us.
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to exclude evidence extracted from Muse’s cell phone; that Muse has
failed to establish prejudice on his claim that trial counsel was
ineffective in failing to raise a hearsay objection; that the trial court
did not abuse its discretion in denying Darious’s and Jujuane’s
motions to sever; that the trial court did not err in failing to exclude
the testimony of a State’s witness; and that Darious is not entitled
to a new trial on the ground that the State represented during the
motion for new trial proceedings that the record was incomplete.
Accordingly, we affirm Appellants’ convictions.
1. The evidence presented at trial showed the following. On
September 23, 2014, Darious and Harris (also known, respectively,
as “Diablo” and “Mambo”), along with five other passengers, rode in
Darious’s tan Chevrolet Tahoe to a gas station at the intersection of
Campbellton Road and Stanton Road in Fulton County. At almost
the same time, Muse, Tequila Forehand, and Frederick Rosenau
arrived at the gas station in Muse’s dark blue Chevrolet Impala.
While there, Appellants saw a gray car, which they thought was
occupied by people with whom they had been feuding. Instead, the
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car was occupied by Clements and Clopton. Occupants of Appellants’
two vehicles opened fire on the car occupied by Clements and
Clopton, killing Clements and injuring Clopton.
More particularly, Clopton testified that, just before the
shooting, she and Clements were driving down Stanton Road to the
gas station to buy cigarettes before the store closed at midnight.
Clopton testified that Clements was driving and that, as they
approached Campbellton Road and began turning left into the gas
station, a bullet struck her passenger window. According to Clopton,
Clements tried to back up but a bullet struck him in the head, and
their car stopped. Clopton “crawled behind the car and laid down.”
In the meantime, shots were still being fired. Clopton added that she
was behind the car about 30 seconds and that while she was there,
the shots stopped. She then saw a vehicle drive off at a “high rate of
speed”; she could not identify the vehicle and was not even “sure [if]
it [was] a truck or a car.” After the vehicle drove off, she ran to the
gas station for help. Clopton could not identify the shooter or the car
that she saw drive away from the gas station. A 911 call reporting
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the incident was made at 11:48 p.m., and law enforcement officers
arrived shortly thereafter. Clopton had been grazed by a bullet on
the top of her head, and Clements died from the injuries caused by
the bullet wound to his head.
Silento Bell testified that at 11:50 p.m. on September 23, 2014,
he and his wife, Yolanda Davis, were driving down Campbellton
Road and that as they were passing the traffic light at the
intersection of Campbellton and Stanton Roads, an “object” hit their
windshield and then “a lot of shooting started.” He ducked down,
“went into defense mode,” was “trying to get out of harm’s way,” and
was “trying not to get shot.” Once he looked up, he saw a black
Impala and a yellow Chevrolet Tahoe, with its lights off, “shoot past”
him “at a high rate of speed.” He added that both vehicles had come
out of the gas station. On cross-examination, when asked how many
times he had “actually been shot at,” Bell responded that “they
wasn’t shooting at [him].” Bell also testified on cross-examination
that his car was not struck by a bullet but by what he “assum[ed]”
was a brick. He added that any bullet holes that the police found in
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his car were from a previous shooting. However, on redirect, Bell
testified that a bullet could have hit the windshield and added that
he did not “know what the object was.”
Davis agreed with Bell’s description of events, but she testified
that a bullet and not a brick struck their car, and she described
Darious’s vehicle as a “white Suburban” instead of a Tahoe. Davis
also testified that before the shooting, she saw the Impala parked by
a gas pump at the gas station and the Suburban in front of the
station. She added that, after the shooting, both vehicles left the gas
station at a high rate of speed. Over Jujuane’s hearsay objection,
Davis testified that, on the night of the crimes, Bell told law
enforcement officers the same thing that she did about what
happened “in every respect.”
The gas station had a video surveillance system that consisted
of a number of cameras recording activity at various parts of the
exterior and interior of the gas station. A number of video clips from
the recording system were played at trial. Appellants do not dispute
that Darious’s Tahoe and Muse’s Impala are depicted in the video
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clips. Those clips and other testimony at trial showed that, on
September 23, 2014, Muse’s Impala and Darious’s Tahoe arrived at
the gas station within a few seconds of each other around 11:43 p.m.
Muse’s Impala parked at a gas pump on the side of the gas station
near the intersection of Campbellton and Stanton Roads, and
Darious’s Tahoe parked in front of the gas station close to an exit on
Campbellton Road. Around 11:45 p.m., Darious got out of the
driver’s door of the Tahoe and opened the back door on the driver’s
side. A video clip from inside the gas station showed that Rosenau
and Forehand went inside the gas station shortly after 11:44 p.m.
and went back outside shortly after 11:45 p.m. While Forehand and
Rosenau were inside the gas station, a man, who was not identified
at trial, got out of the Impala, opened the trunk, and got something
out of it. Forehand approached the Tahoe at 11:45:35 p.m., spoke
with Darious and other occupants, and then, at 11:46:13 p.m.,
walked in the direction of the Impala. Forehand approached the
Tahoe again at 11:46:22 p.m., stood by the driver’s door, leaned in
the driver’s door and looked toward the back seat, and then, at
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11:46:30 p.m., walked in the direction of the Impala. Immediately
after Forehand walked away from the Tahoe, Jeremiah McKenzie,
who testified and identified himself in the video clip, approached the
Tahoe and spoke with Darious. At 11:46:50 p.m., McKenzie walked
away from the Tahoe. A few seconds later, several men got out of the
Tahoe and began shooting in the direction in which the Impala was
parked. The victims’ car was located on the other side of the Impala
at that time, attempting to turn into the gas station from Stanton
Road. There was no testimony regarding the identity of the shooters
who emerged from the Tahoe, and there was no video clip of what
was happening at the Impala at the time of the shooting. The Impala
and the Tahoe are shown driving away from the gas station at
11:47:30, pulling out onto Campbellton Road.
McKenzie testified that he knows Darious as Diablo and
Jujuane as Mambo and that he and the Harris brothers lived in the
same neighborhood near the gas station. McKenzie testified that he
saw the Tahoe park at the gas station and that he knew it was owned
by Diablo. According to McKenzie, shortly after the Tahoe parked,
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he saw Darious get out of the front driver’s door of the Tahoe and
open the back door on the driver’s side. McKenzie added that, a short
time later, a female that he knew as “Red Rose” approached the
vehicle. After Red Rose walked away from the Tahoe, McKenzie
walked up to it and asked, “What’s going on?” He added that there
were seven occupants of the Tahoe, but that he only recognized
Diablo, who was sitting in the front driver’s seat, and Mambo, who
was sitting in the front passenger seat. McKenzie testified that he
saw a “whole bunch of guns,” adding that everyone in the car had a
gun except “[a]bout two people.” The occupants told McKenzie to
“[m]ove back,” and Diablo said “green light” or “go.” McKenzie moved
away from the Tahoe. McKenzie testified that, at that time, a gray
car was turning into the gas station and “[t]hat’s when they started
shooting.” According to McKenzie, Red Rose, who was near a gas
pump, was the first person who started shooting, followed by men
from the Tahoe. When asked on cross by Darious’s counsel if he had
seen Diablo and Mambo with a weapon, McKenzie said, “there was
so many [guns], I just can’t say they had one. But I didn’t see them
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get out of the truck.”
McKenzie also testified that he had seen them at the gas
station earlier on the day of the crimes. According to McKenzie, they
were “just standing around there kicking it” when Diablo’s and
Mambo’s sister approached them and said that “some guys are
looking for you in a gray car.” McKenzie added that he had seen
Diablo, Mambo, and others “feuding” or “beefing” with individuals
in a gray car for “a whole week,” and that “Diablo and them” were
part of the Bloods gang, while the people in the gray car were part
of the Crips gang.
Investigator T. Bacon of the City of Atlanta Police Department
investigated the crime scene. He testified that the victims’ car was
struck by nine bullets, with three bullets striking the front
passenger window. He added that he found a large number of shell
casings at the crime scene. Vanna Kelly, a GBI firearms expert,
testified that the four .45-caliber shell casings found at the scene
were fired from the same firearm; that 13 9mm shell casings found
at the scene were fired from the same firearm; that 11 other 9mm
11
shell casings were fired from a different 9mm pistol; that two other
9mm shell casings were fired from yet a third 9mm pistol; and that
27 7.62 x 39 millimeter shell casings found at the scene were all fired
from the same firearm. Kelly also testified that the 7.62 x 39 shell
casings were “consistent with being fired from an AK-47 or SKS-type
rifle.” The 7.62 x 39 shell casings were found in the area where the
Impala had been parked at the gas station.
Kasandra Novinger, who was a probation officer for the
Georgia Department of Corrections in November 2014, testified that
Muse was called for a probation visit based on information2 that her
office had received from Detective Summer Benton of the Atlanta
Police Department. She testified that, when she first encountered
Muse at the office, he seemed fine, but that once she informed him
that the office would be conducting a urine screen, as well as a
search of his cell phone and car, he “began to show obvious signs of
anxiety,” with his breathing becoming heavier and shaky. While
2 This information concerned an incident separate from the crimes that
occurred in this case.
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waiting to do the urine screen, Muse vomited in the lobby of the
office. During the search of Muse’s car, three spent 7.62 x 39
millimeter shell casings were found in the back seat. Kelly testified
that those casings were fired from the same firearm that fired the
7.62 x 39 shell casings found at the crime scene.
Sergeant Lakea Gaither testified that she had been a detective
in the gang unit of the Atlanta Police Department for over seven
years and had encountered over a thousand gang members during
that time. She testified that the Bloods are a criminal street gang
acting within Fulton County and that the “Nine Trey Bloods,”
nicknamed “Billy Bad Ass,” are a sect of the larger Bloods gang. That
sect calls their female members terms like Lady, Ruby, or Rose. She
added that the Billy Bad Asses (“BBAs”) used symbols like five-point
stars, a skull, “five symbols,” and BBA tattoos to identify
themselves. According to Gaither, Forehand claimed membership in
the BBAs and had a five-point star on the side of her face. She also
testified that on Muse’s Facebook page, he went by the name
“Finessalino” and that members of the Nine Trey Bloods attached
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“lino” to the end of their names. Gaither added that she had learned
from two investigators in the gang unit that Darious and Jujuane
were affiliated with the Nine Trey Bloods. Finally, Gaither testified
that Rosenau was a member of the Nine Trey Bloods and was known
as “Gangster P” or “GP.” She added that there were “social media
pictures with him throwing up gang signs . . . with other Nine Trey
members” and that he “was a low, L-O-W, 020, which is . . . like third
in rank of a particular gang.”
Detective Kevin Leonpacher, who was trained in cell phone
analysis, testified that information that he obtained from the carrier
of Muse’s cell phone showed that, shortly before the 911 call
reporting the incident at 11:48 p.m., Muse’s cell phone made a call
that hit off a cell tower in the same geographic area as the crime
scene. Moreover, the evidence showed that Muse’s cell phone made
a call at 11:51 p.m. that hit off that same cell tower but on a different
side of it and that his phone made a call at 11:54 p.m. that hit off a
cell tower that was farther away from the crime scene. Leonpacher
added that he had examined thirty days of calls made using Muse’s
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cell phone and that the calls made before and after the shooting were
made to numbers that were in the top seven of numbers most
frequently called from Muse’s phone.
In addition, Investigator Jared Watkins testified that he
performed a “phone dump” of Muse’s cell phone, which involved
using a software program to extract information from the phone.
The messages that Watkins extracted from Muse’s cell phone
showed that Muse received an incoming message on November 2,
2014, that said that “[h]e who walks by these principles walk the life
of Billy. Loyalty is everything. Remember that. Y’all, loyalty lays
with Billy first and those who brought you to Billy secondly. I love
my Billy.” Another message sent on October 25, 2014, reads: “This
Billy is more than a gang, it’s a life for Billy, and we do the same in
return. It’s not about staying either. It’s in or you’re out. Your
decision in this life.” There was a message sent from Muse’s phone
on September 25, 2014, saying that “[a]s of today, everyone report
directly to Finessalino.” Moreover, at 11:17 p.m. on September 23,
the night of the shooting, Muse’s phone sent a message saying,
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“Well, I’m in some issue right now, so I’m out.” Then, in the early
morning of September 24, Muse’s phone sent a message saying,
“Don’t know one take that stick from there.” At 4:42 a.m. on
September 24, Muse’s phone received a message from a person
named Nick Elder saying, “Nothing on news twin.” At 9:06 a.m. that
same day, Muse’s phone sent a message to Elder saying, “Already
seen it.” Then, at 9:26 a.m., the phone sent a message to “Rose” that
read, “Yo, make sure you get my little bros to get those 7/62 by 39 by
the time I get back today.” In addition, at 12:30 p.m. on September
24, Muse’s phone sent a message that said, “7/62 by 39.” The next
message the phone sent said “Bullets.” Muse’s phone also contained
a video of an unidentified man in the backseat of a car holding a
firearm that Investigator Watkins identified as an AK-47. Watkins
described a “stick” as a “street term” for a “firearm” and testified
that the only firearms that could fire “7/62 by 39” ammunition were
“an AK-47 and . . . an SKS.”
Both Darious and Jujuane were interviewed by Detective
Benton before trial. Benton interviewed Jujuane on September 27,
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2014. Benton testified that Jujuane denied being at the crime scene,
saying that he was at home when the crimes occurred. Jujuane also
said that he “hung around Bloods,” particularly the BBAs, but “was
not involved with them.” During a second interview with Benton on
October 6, 2014, Jujuane first denied being at the scene, but then
admitted that he was in the front seat of the Tahoe when the
shooting occurred and that he heard someone say “[t]here they go.”
However, he denied knowing “what was about to go down” and
denied knowing anyone who was sitting in the backseat of the
Tahoe.
Benton interviewed Darious on October 10, 2014. She testified
that Darious initially denied that he was at the crime scene and said
that he owned a Buick vehicle, but that after the detective informed
him that she had spoken with Jujuane, Darious admitted that he
was there and that he owned a Chevrolet Tahoe. He also admitted
that he arrived at the gas station on the night of the crimes at
roughly the same time as the Impala and that he had been in hiding
after the crimes were committed but for a reason other than the
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crimes in question. Darious denied knowing the people who were
sitting in the back of his Tahoe on the night of the crimes. Like
Jujuane, he denied being a member of the Bloods but said that he
“does hang out with a few members.”
Muse was the only defendant to testify at trial. He
acknowledged that he and Rosenau are members of the Bloods gang,
but testified that he was not at the gas station during the shooting
incident. He added that Rosenau had dropped him off at a
girlfriend’s house around 8:00 p.m. on the night of the incident, that
Rosenau took Muse’s Impala “to make a little run,” and that he
(Muse) left his cell phone in the Impala to charge because he did not
have a wall charger. According to Muse, he stayed at his girlfriend’s
home about three hours, and she then drove him to the nearby home
of a friend and dropped him off. Muse testified that later that
evening, Rosenau came to his friend’s home, and “[e]verybody [was]
kind of frantic, they were, like, shooken up about something.” Muse
did not say who was with Rosenau, but he testified that “they didn’t
go into too much detail” and took off. Muse testified that, at the time
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of the incident, he did not know either of the Harris brothers.
2. All three Appellants contend that the evidence presented at
trial was constitutionally insufficient to support their convictions for
the crimes committed against Clements, Clopton, Bell, and Davis.
In particular, Muse claims that there was no evidence presented at
trial that he participated in the incident that led to the shooting that
killed Clements and injured Clopton, correctly noting that no
witness identified him at the crime scene and that the surveillance
video did not show him as being present at the gas station. For their
part, Darious and Jujuane contend that the evidence showed only
that they were merely present at the crime scene and that they did
not fire or possess a weapon. We disagree.
When evaluating the sufficiency of the evidence as a matter of
federal due process, we view the evidence presented at trial in the
light most favorable to the verdicts and consider whether it was
sufficient to authorize a rational trier of fact to find the defendant
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,
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61 LEd2d 560) (1979); Moore v. State, 311 Ga. 506, 508 (858 SE2d
676) (2021). This “limited review leaves to the jury the resolution of
conflicts in the evidence, the weight of the evidence, the credibility
of witnesses, and reasonable inferences to be made from basic facts
to ultimate facts.” Rich v. State, 307 Ga. 757, 759 (838 SE2d 255)
(2020) (cleaned up).
Moreover, to prove Appellants’ guilt, it was not necessary for
the State to prove that Appellants possessed a weapon or fired at
the victims. See Saylor v. State, ___ Ga. ___ (___ SE2d ___) (2023 WL
3183590, at *4) (May 2, 2023). (“To prove [the defendant’s] guilt, the
State was not required to prove that he personally fired at [the
victim] or his vehicle.”).
OCGA § 16-2-20 (a) makes a party to the crime equally
culpable, and a defendant is a party to a crime if he
“[i]ntentionally aids or abets in the commission of the
crime” or “[i]ntentionally advises, encourages, counsels,
or procures someone else to commit the crime.” OCGA §
16-2-20 (b) (defining parties to a crime).
Id. See also Clark v. State, 315 Ga. 423, 428 (883 SE2d 317) (2023)
(holding that although the evidence at trial showed that the
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defendant did not fire the shot that killed the victim, the evidence
showed that he was a party to that crime and was constitutionally
sufficient to support his conviction); White v. State, 298 Ga. 416, 418
(782 SE2d 280) (2016) (holding that the “fact that [the defendant]
was merely the driver and did not actually fire the gun does not
undermine the legal sufficiency of the evidence against him” where
the evidence showed that he was a party to the crimes). “Conviction
as a party to a crime requires proof of a common criminal intent,
which the jury may infer from the defendant’s presence,
companionship, and conduct with another perpetrator before,
during, and after the crimes.” Clark, 315 Ga. at 427. “However, mere
presence at the crime scene is insufficient to make someone a party
to a crime.” Id. at 427-428.
Viewed in the light most favorable to the verdicts, the evidence
at trial showed that Darious’s Tahoe and Muse’s Impala arrived at
the gas station at almost exactly the same time and that numerous
passengers in Darious’s Tahoe were armed. Moreover, Darious,
Jujuane, Muse, Forehand, and Rosenau were all identified as
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members of the Bloods gang. McKenzie, who knew Darious and
Jujuane, testified that they had been feuding with members of the
Crips gang in the week preceding the shooting. There was also
evidence that the members of the Crips gang were driving a gray car
and that Darious’s and Jujuane’s sister had told them earlier on the
day of the shooting that “some guys” in a gray car were looking for
them. Surveillance video showed that Darious spoke with Forehand,
a fellow gang member and occupant of Muse’s car, at his Tahoe on
two occasions, the last one just seconds before 59 shots were fired in
the direction of the gray car turning into the gas station, which also
happened to be in the direction of the car occupied by Bell and Davis.
The evidence showed that Clements was killed by one of the bullets
fired, that Clopton was hit by one, and that Bell’s and Davis’s car
was struck by one. Moreover, those shots were fired, at a minimum,
by Forehand and several occupants of Darious’s Tahoe, just after
McKenzie heard Darious say “green light” or “go.” Furthermore,
immediately after the shooting, Darious’s Tahoe and Muse’s Impala
sped away from the gas station together. There was also evidence
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that calls were placed by Muse’s cell phone while it was located near
the crime scene shortly before and shortly after the shooting and
that those calls were made to people that Muse frequently called.
Muse’s cell phone was also used to send text messages after the
crimes that said not to move a firearm and to “make sure you get my
little bros to get those 7/62 by 39,” one of the types of ammunition
used in the shooting, “by the time I get back today.” In addition,
when Muse realized that his cell phone and vehicle would be
searched about a month and a half after the crimes, he displayed
extreme anxiety, including vomiting. And when law enforcement
officers searched his car, they found three spent 7.62 x 39 millimeter
shell casings that had been fired from the same firearm that fired
the 7.62 x 39 shell casings found at the crime scene. Moreover, the
7.62 x 39 shell casings found at the crime scene were found around
the location where Muse’s Impala had been parked.
We conclude that the evidence was sufficient as a matter of
constitutional due process to authorize a rational trier of fact to find
Appellants guilty beyond a reasonable doubt as parties to the crimes
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committed against Clements, Clopton, Bell, and Davis, including
malice murder, even if they did not possess or fire a weapon. See
Jackson, 443 U.S. at 319; OCGA § 16-2-20; Clark, 315 Ga. at 427-
428; White, 298 Ga. at 418. Moreover, although Muse points out that
he presented an alibi defense at trial, testifying that Rosenau
borrowed his vehicle and that Muse left his phone in the vehicle so
that it could charge, the jury was authorized to reject that testimony
and credit the foregoing evidence of his participation in the crimes.
See Pittman v. State, 300 Ga. 894, 897 (799 SE2d 215) (2017)
(holding that the jury was entitled to disbelieve the defendant’s alibi
and credit other evidence, “as resolving evidentiary conflicts and
inconsistencies and assessing witness credibility are the province of
the fact finder, not the appellate court” (cleaned up)).
In addition, Muse’s contention that the evidence was
insufficient to support his conviction for the aggravated assault of
Bell because Bell testified that “they wasn’t shooting at [him]” and
that it was a brick and not a bullet that hit his car is without merit.
To begin, the indictment charged Muse with committing an
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aggravated assault against Bell “by shooting at, towards, and in his
direction with a firearm, the same being a deadly weapon,” so it was
not necessary for the State to offer proof that a bullet struck Bell’s
car for Muse to be convicted of aggravated assault. Moreover, there
are two methods of committing a simple assault that will support an
aggravated assault charge. One is the “attempt[] to commit a violent
injury to the person of another,” and the second is the commission of
“an act which places another in reasonable apprehension of
immediately receiving a violent injury.” OCGA § 16-5-20 (a) (1), (2).
Here, the trial court instructed the jury only on the first method of
committing a simple assault and charged the jury on the doctrine of
transferred intent. Thus, although Bell testified that he did not
think that the defendants were shooting at him, the charge on
transferred intent made “it irrelevant” whether Bell was the
intended victim of the assault. See Russell v. State, 303 Ga. 478, 480
(813 SE2d 380) (2018) (holding that the doctrine of transferred
intent made “it irrelevant” whether the defendant intended to shoot
a victim who was intervening in a fight between the defendant and
25
the intended victim of the shooting). Finally, Muse appears to
contend that the State failed to prove that Bell was not in
“reasonable apprehension of immediately receiving a violent injury,”
OCGA § 16-5-20 (a) (2), because Bell stated that he believed
Appellants were not shooting at him. The jury was not charged on
that method of committing a simple assault, however. In sum, the
evidence was sufficient as a matter of constitutional due process to
support Muse’s conviction for the aggravated assault of Bell even
though Bell was not the intended victim of the shooting. See
Blackwell v. State, 302 Ga. 820, 821-822 (809 SE2d 727) (2018)
(holding that, even though the victim was not the intended target of
a gunfight and even though the defendant did not fire the fatal shot,
the evidence was sufficient to support the defendant’s conviction as
“a party to the crime of malice murder under the doctrine of
transferred intent” because it showed that the defendant shared a
common criminal intent with another person “to engage in a
gunfight in the presence of innocent bystanders”).
Finally, Jujuane’s contention that the evidence was insufficient
26
to support his convictions as a matter of Georgia statutory law for
the crimes against Clements, Clopton, Bell and Davis, see OCGA §
24-14-6,3 fails. He argues that the State’s evidence did not exclude
the reasonable hypothesis that he was merely present at the crime
scene as a passenger in the Tahoe. However, “where the jury is
authorized to find that the evidence, though circumstantial, was
sufficient to exclude every reasonable hypothesis save that of the
guilt of the accused, we will not disturb that finding unless it is
insupportable as a matter of law.” Smith v. State, 315 Ga. 357, 358
(882 SE2d 289) (2022) (cleaned up). Here, even assuming all the
evidence was circumstantial, we readily conclude that the evidence
as summarized above was sufficient to authorize the jury to reject
the hypothesis that Jujuane was merely present at the crime scene
and, instead, to find that he was a party to the crimes committed
that night. See id.3 OCGA § 24-14-6 provides: “To warrant a conviction on circumstantial
evidence, the proved facts shall not only be consistent with the hypothesis of
guilt, but shall exclude every other reasonable hypothesis save that of the guilt
of the accused.”
27
3. Darious and Jujuane also challenge the sufficiency of the
evidence regarding their convictions for criminal street gang
activity. 4 We disagree.
Darious and Jujuane were charged with violating the Street
Gang Act, on the basis that while associated with a criminal street
gang, they participated in criminal gang activity through the
commission of at least one of several crimes, including murder,
felony murder, and aggravated assault. To convict Darious and
Jujuane,
the State had to prove beyond a reasonable doubt the
existence of a “criminal street gang,” that [Darious and
Jujuane] w[ere] associated with the gang, that [they]
committed one of the offenses listed in OCGA § 16-15-3
(1), and that the commission of the predicate offense was
intended to further the interests of the gang.
Sillah v. State, 315 Ga. 741, 745 (883 SE2d 756) (2023).
Darious and Jujuane do not argue that the Nine Trey Bloods
4 Muse challenges the sufficiency of the evidence supporting his
conviction for criminal gang activity only on the ground that the State failed to
prove that he committed a predicate act of violence. See OCGA § 16-15-3 (1)
(J).
28
are not a criminal street gang. See OCGA § 16-15-3 (3) (defining a
“criminal street gang” as “any organization, association, or group of
three or more persons associated in fact, whether formal or informal,
which engages in criminal gang activity”). Instead, they argue that
the State failed to prove the other elements of criminal gang activity.
As for whether the evidence was sufficient to prove that Darious and
Jujuane were associated with the Nine Trey Bloods, McKenzie
testified that he knew Darious and Jujuane from his neighborhood
and that they were associated with the Bloods gang. Although
Darious contends that McKenzie’s testimony was not credible,5 “‘it
is axiomatic that resolving evidentiary conflicts and assessing
witness credibility are within the exclusive province of the jury.’”
McCoy v. State, 315 Ga. 536, 543 (883 SE2d 740) (2023) (quoting
Graves v. State, 306 Ga. 485, 553 (831 SE2d 747) (2019)). Moreover,
in addition to McKenzie’s testimony, Sergeant Gaither testified that
5Darious argues that McKenzie’s testimony was not credible because he
had three prior felony convictions and had a bias against Darious based on his
testimony that Darious had threatened his wife before trial.
29
Darious and Jujuane were associated with the Nine Trey Bloods.
Jujuane points to the lack of evidence that he had tattoos, wore gang
colors, or was pictured on social media with gang members.
However, “although the State is required to prove its case with
competent evidence, there is no requirement that it prove its case
with any particular sort of evidence.” Allen v. State, 315 Ga. 524,
529-530 (883 SE2d 746) (2023) (cleaned up). We conclude that the
foregoing evidence, when viewed in the light most favorable to the
verdicts, was sufficient to authorize the jury to conclude that
Darious and Jujuane were associated with the Nine Trey Bloods.
Moreover, in affirming Darious’s and Jujuane’s convictions for
murder and other crimes committed against the individual victims,
we have already concluded that the State proved that they
committed predicate acts of violence. See OCGA § 16-15-3 (1) (J).
With regard to the contention that the State failed to prove that
Darious and Jujuane intended to further the interests of the Nine
Trey Bloods, the evidence showed that Darious, Jujuane, and their
fellow gang members had engaged in a conflict for about a week with
30
a rival gang and that, earlier on the day of the crimes, Darious and
Jujuane were told that some of the rival gang members, who were
driving a gray car, were looking for them. Later that same day,
Darious, Jujuane, and fellow gang members arrived at the gas
station at almost exactly the same time, communicated with each
other, and shot at the occupants of a gray car after Darious said
“green light” or “go.” Even though Darious, Jujuane, and their fellow
gang members were mistaken that the occupants of the gray car
were members of the Crips gang, the jury was nevertheless
authorized to conclude that the shooting was undertaken with an
intent to further the gang’s interests. See Monroe v. State, 315 Ga.
767, 770-771 (884 SE2d 906) (2023) (holding that evidence that the
defendant, acting with fellow gang members, “sought to avenge the
perceived disrespectful behavior” of a rival gang member “was
sufficient to establish a nexus between the charged crimes and an
intent to further the gang’s interests”). See also Hayes v. State, 298
Ga. 339, 342-343 (781 SE2d 777) (2016) (holding that evidence of a
defendant’s association with a criminal street gang and “his
31
participation in the [gang’s] activities before and during the crimes
charged provide[d] the required nexus between his criminal acts and
the intent to further the gang’s interests”).
4. Muse and Darious contend that the verdicts were “contrary
to [the] evidence and the principles of justice and equity,” OCGA §
5-5-20, and “decidedly and strongly against the weight of the
evidence.” OCGA § 5-5-21. “Grounds for a new trial under these
Code sections are commonly known as the ‘general grounds,’ and the
two statutes give the trial court broad discretion to sit as a
thirteenth juror and weigh the evidence on a motion for new trial
alleging these general grounds.” Allen v. State, 315 Ga. 524, 531 n.5
(883 SE2d 746) (2023) (cleaned up). “But as an appellate court, we
do not independently review the record as a thirteenth juror. The
decision to grant or refuse to grant a new trial on the general
grounds is vested solely in the trial court.” Ward v. State, ___ Ga.
___ (___ SE2d ___) (2023 WL 3468140, at *4) (May 16, 2023) (cleaned
up). Here, in denying Muse’s and Darious’s motions for new trial,
the trial court found that “the jury’s guilty verdict was not ‘contrary
32
to [the] evidence and the principles of justice and equity.’ OCGA § 5-
5-20. Nor was the verdict ‘decidedly and strongly against the weight
of the evidence.’ OCGA § 5-5-21.” The court also stated that it had
“exercised its discretion and independently weighed the evidence in
ruling on the merits of [Muse’s and Darious’s] OCGA §§ 5-5-20 and
5-5-21 claims,” and that its “conscience approves this verdict.” The
record therefore shows that the trial court properly exercised its
authority in refusing to grant a new trial on the general grounds.
“Once we have determined that the trial court properly exercised its
authority in refusing to grant a new trial on the general grounds, we
cannot review the merits of that decision by the trial court.” Allen,
315 Ga. at 531 (cleaned up). Accordingly, Muse’s and Darious’s
claims on the general grounds fail. 6
6 In another case decided today, we noted that, “in the past, in evaluating
a trial court’s denial of a motion for new trial on the general grounds, see OCGA
§§ 5-5-20 & 5-5-21, we have performed or referenced a constitutional due
process sufficiency-of-the-evidence review under Jackson [v. Virginia, 443 U.S.
307 (99 SCt 2781, 61 LE2d 560) (1979)].” King v. State, No. S23A0214, slip op.
at 14 n.8 (Ga. June 21, 2023). We also said in King that “many of us question
whether it is proper for this Court to import Jackson into an appellate review
of the general grounds (or to otherwise rely on Jackson as part of that
analysis).” Id. However, we did not “determine the propriety of that practice”
33
5. All three Appellants contend that the trial court violated
their Sixth Amendment right to counsel by failing to inform counsel
of three jury notes and by failing to seek comment from counsel.
Moreover, Muse and Darious contend that the trial court violated
their right to be present under the Georgia Constitution by
discussing those jury notes in their absence. We disagree with both
of these contentions.
(a) The record shows that, during deliberations, the jury sent
three notes to the trial court. In the first note, marked as “Court’s
Exhibit 1,” the jury asked three questions: “Definitions of all
charges?”; “Does the actual killing weapon need to be possessed by
the said person to be found guilty of murder?”; and “Watch
surveillance footage.” The trial court said that the jury and the
defendants “need[ed] to be brought” into the courtroom. Shortly
in King given that “King’s general grounds claim fail[ed] in all events because
the trial court exercised its discretion as the thirteenth juror, and because the
evidence against King was constitutionally sufficient to affirm his convictions.”
Id. Similarly, here, where the trial court exercised its discretion as the
thirteenth juror and where we have rejected Appellants’ claims under Jackson
v. Virginia, we also need not “determine the propriety of that practice.” Id.34
thereafter, the record indicates that the jury was brought into the
courtroom. The record is silent as to whether Appellants were
brought into the courtroom. In the presence of counsel, the court
asked the jurors what they meant by “[t]he definition of all charges,”
and the foreperson said that “[t]here was a specific list you read that
kind of broke down and clarified the charges.” The court asked
whether the jury had been provided written charges, and the
prosecutor noted that the court had asked the prosecutor and
defense counsel to redact the charges that the court had marked
through before giving the written charges to the jury and that
counsel would be finished in about 10 minutes with that task.
Counsel for Jujuane agreed with the prosecutor’s comment, saying
“[t]hat’s correct.” The court then informed the jury that it would
have those charges shortly.
As for the second question, the court at one point said that the
question was, “Do you have to be holding the gun to be convicted of
murder?” Shortly thereafter, the court said that the question was,
“Does the actual killing weapon need to be possessed by said person
35
to murder to be found guilty of?” The trial court did not ask counsel
what they thought was the appropriate response to the question.
Instead, the court instructed the jury that the answer to the
question was “no,” but that it would have the written charges and
needed to review them. With regard to the third question, the court,
the prosecutor, and counsel for Appellants had an extensive
discussion regarding whether the jury could watch the surveillance
footage in the jury room or had to watch it in the courtroom.
Appellants contended that permitting the jury to watch the footage
in the jury room would violate the continuing witness rule, but the
court overruled the objection.
The record also contains a second note from the jury, marked
as “Court’s Exhibit 2.” That note contained a question asking if the
jury could review the transcript of McKenzie’s trial testimony. The
exhibit contains a written answer from the trial court: “No. Not
available. Need to remember testimony as best you can.” The trial
transcript contains no mention of this note by the trial court to
counsel.
36
In yet a third note, marked “Court’s Exhibit 3,” the jury asked
the court, “If we can come to agreement on some charges, but not
others, for one defendant, how does that impact our decision”? The
trial court read the note to counsel and asked, “How do I respond to
that”? All counsel voiced their thoughts, and with the agreement of
all counsel, the trial court instructed the jury that “[i]t’s the hope
that you can have unanimous agreement on every single charge. If
it comes to the point where you find that that’s impossible, then you
need to let me know.”
At joint hearings on Appellants’ motions for new trial, the trial
court heard testimony regarding whether counsel and Appellants
were present when the notes were discussed. The lead and assistant
prosecutors both testified that the trial judge discussed the jury
questions in the presence of all counsel and defendants, including
the question regarding McKenzie’s testimony. They also added that
the trial judge’s practice was always to discuss jury questions with
counsel and the defendants being present. Moreover, Muse’s trial
counsel testified that the trial judge’s practice was to discuss jury
37
questions with counsel and defendants; that he had no reason to
believe that the judge did not follow that practice in this case; that
he remembered discussing jury questions with the court; that Muse
was with him during the discussions; that he had no reason to think
that other defendants and defense counsel were not present; and
that if somebody had been missing during discussions, defense
counsel would have raised their absence with the trial court, saying
“[t]hat is just standard practice.” Jujuane’s trial counsel testified
that she did not have “any specific recollection to conversations
about the jury questions,” but that she was “sure” that the trial court
included her and her client when discussing the jury questions
because that was the court’s normal practice. Reiterating that she
had no specific recollection of the discussions about the jury
questions, she added that to the best of her memory and based on
the court’s normal practice, “the judge would read us the question
and ask us if we have any input to tell us what it is.” She also
testified that she was “able to participate in those conferences”; that
her “client [was] with [her]”; that “other defense counsel were there”;
38
and that if any defense counsel or defendants had been missing, she
would have raised the issue with the trial court.
In denying Appellants’ motions for new trial, the trial court
found that Appellants had “failed to sufficiently demonstrate from
the full record of this case—including the record made at the hearing
on . . . motion for new trial—that [Appellants] and [their] lawyer[s]
were . . . precluded from discussing the jury questions with the trial
court or . . . excluded from a colloquy between the trial court and the
jury.”
(b) “A criminal defendant’s constitutional right to counsel
attaches after the onset of formal prosecutorial proceedings and
continues through all critical stages of the proceeding brought
against him.” Lowery v. State, 282 Ga. 68, 74-75 (646 SE2d 67)
(2007) (cleaned up).7 In Lowery, we said that:
7 Appellants do not cite to either the Georgia or United States
Constitutions to support their right-to-counsel claim. Instead, they rely
primarily on Lowery, in which we held that a violation of the Sixth Amendment
right to counsel constituted harmless error. Accordingly, we analyze
Appellant’s claims as asserting a violation of the Sixth Amendment right to
counsel and not as asserting a violation of the right to counsel under the
Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec. I, Par.XIV.
39
Assuming without deciding that the right to counsel
encompasses the right to have reasonable notice of a
deliberating jury’s substantive communication and a
meaningful opportunity to be heard with regard to the
proposed response thereto, the failure of the trial court to
inform counsel of the contents of the note and to seek
comment on or input in the formulation of the court’s
response would constitute a violation of the right to
counsel.
Id. at 75 (footnote omitted). Furthermore, “[i]n an exercise of this
Court’s inherent power to maintain a court system capable of
providing for the administration of justice in an orderly and efficient
manner,” we took the opportunity to announce a rule requiring
trial courts to have jurors’ communications submitted to
the court in writing; to mark the written communication
as a court exhibit in the presence of counsel; to afford
counsel a full opportunity to suggest an appropriate
response; and to make counsel aware of the substance of
the trial court’s intended response in order that counsel
may seek whatever modifications counsel deems
appropriate before the jury is exposed to the instruction.
Id. at 76 (cleaned up). Since we decided Lowery, we have not
revisited the existence of the constitutional rule that we assumed in
Lowery–that a defendant’s right to counsel “encompasses the right
to have reasonable notice of a deliberating jury’s substantive
40
communication and a meaningful opportunity to be heard with
regard to the proposed response thereto.” Id. at 75. 8 The Court of
Appeals, however, has said that in Lowery, we held that “‘the failure
of the trial court to inform counsel of the contents of [a jury note]
and to seek comment or input in the formulation of the court’s
response [constitutes] a violation of [a defendant’s] right to counsel.”
Dowda v. State, 341 Ga. App. 295, 299 (799 SE2d 807) (2017)
(brackets in original). Appellants rely on Lowery and Dowda to
argue that the trial court violated their right to counsel in this case.
Assuming without deciding the continued validity of the
constitutional rule that we assumed in Lowery, we conclude that
Appellants’ claim fails.
(c) As for the merits of the right-to-counsel claim, the record
shows that the trial court complied with the requirements of Lowery
8 We have, however, had an opportunity to address the new rule of
procedure that we announced in Lowery for handling jury communications. See
Styles v. State, 309 Ga. 463, 469 n.6 (847 SE2d 325) (2020) (holding that any
error in failing to comply with Lowery’s procedural rule was harmless and
saying that “[s]ome of us have questions as to the propriety of our unilateral
pronouncement of a new rule of procedure in Lowery, rather than through the
rule-making process established by the Georgia Constitution”).
41
when addressing the jury notes regarding the definitions of the jury
charges, watching the surveillance footage, and what would happen
if the jury could not reach agreement on some of the charges against
Appellants. The trial court, however, failed to afford Appellants’
counsel an opportunity to provide input on the question regarding
whether a defendant needed to possess the murder weapon to be
found guilty. Moreover, the trial record does not show that the trial
court afforded counsel an opportunity to provide input on the
question whether the jury could review the transcript of McKenzie’s
testimony, and for purposes of appeal, we will assume that the
testimony at the hearings on motion for new trial did not resolve the
issue. However, we conclude that any violation of Appellants’ right
to counsel on these two questions was harmless.
As we explained in Lowery, an error of constitutional
magnitude, such as the denial of the Sixth Amendment right to
counsel, can be harmless if “the State can prove beyond a reasonable
doubt that the error did not contribute to the verdict.” Lowery, 282
Ga. at 75 (cleaned up). There, the Court held that the trial court
42
erred when it failed to inform counsel of the contents of a jury note
on its deadlocked status before the trial court responded to the note
by giving an Allen charge. Id. at 74-75. We concluded that the
constitutional error was harmless beyond a reasonable doubt,
explaining that “[t]he decision to give an Allen charge is within the
trial court’s discretion” and that, as we had explained earlier in the
opinion, “the Allen charge given by the trial court, though
inaccurate, did not constitute reversible error.” Id. at 75.
Here, we also conclude that any violation of Appellants’ right
to counsel was harmless beyond a reasonable doubt. First, the trial
court’s response that a defendant did not have to be in possession of
the murder weapon to be found guilty of murder was an accurate
statement of the law and was adjusted to the evidence in the case.
See Kemp v. State, 303 Ga. 385, 390 (810 SE2d 515) (2018) (holding
that the defendant did not have to be in possession of the murder
weapon to be found guilty of murder where the evidence showed that
the defendant conspired with others to rob the victim); Morris v.
State, 308 Ga. 520, 529 (842 SE2d 45) (2020) (“A jury instruction
43
must be adjusted to the evidence and embody a correct, applicable,
and complete statement of law.” (cleaned up)). Moreover, “[w]hether
or not to grant the jury’s request to rehear portions of the evidence
is within the discretion of the trial judge.” Smith v. State, 280 Ga.
161, 162 (625 SE2d 766) (2006) (cleaned up). “In fact, we have long
held that, in Georgia, a judgment will not be reversed because the
trial court declines to aid the jury in recalling the evidence and
refuses a request to have certain testimony read back.” Johnson v.
State, 301 Ga. 205, 208 (800 SE2d 296) (2017) (cleaned up). Thus,
the trial court did not abuse its discretion in refusing to permit the
jury to review a transcript of McKenzie’s testimony. 9 Accordingly,
we conclude that any error by the trial court in failing to consult
with defense counsel before providing the jury with answers to the
two questions at issue was harmless beyond a reasonable doubt. See
Lowery, 282 Ga. at 75.
9 At the motion for new trial hearing, Jujuane’s counsel testified that, if
the trial court had asked her how she would have responded to the jury’s note
about reviewing a transcript of McKenzie’s testimony, she would have told the
trial court to tell the jurors to rely on their memory.
44
(d) With regard to Muse’s and Darious’s contention that the
trial court violated their right to be present by discussing jury notes
in their absence, the record belies this claim. To begin, the trial court
directed that Appellants be brought into the courtroom before it
addressed the notes from the jury, and “[w]e must apply the
presumption of regularity and conclude that the trial court
conducted the trial properly by making sure appellant[s] w[ere]
present when necessary.” Milinavicius v. State, 290 Ga. 374, 377
(721 SE2d 843) (2012) (holding, based on the presumption of
regularity, that when the record failed to show that the defendant
was present for a discussion about replacing a juror, but showed that
the court had directed before the discussion that the defendant be
brought into the courtroom, there was no violation of the defendant’s
right to be present).
In addition, the record, including the testimony at the motion
for new trial hearings, supports the trial court’s conclusion in
denying Appellants’ motions for new trial that Appellants were
present for the discussions regarding the jury notes. In this regard,
45
the prosecutors testified, among other things, that the trial judge
discussed the jury questions in the presence of all counsel and
defendants and that his normal practice was to do so. Moreover,
Muse’s trial counsel testified that the trial judge’s practice was to
discuss jury questions with counsel and defendants; that he had no
reason to believe that judge did not follow that practice in this case;
and that he remembered Muse being with him when discussing jury
questions with the court. And Jujuane’s trial counsel testified,
among other things, that she was “sure” that the trial court included
her and her client when discussing the jury questions and that it
was the court’s normal practice to do so. Based on this evidence, we
conclude that the trial court did not err in concluding that
Appellants had failed to show that they were excluded from the
discussions regarding the jury notes. See Frezghi v. State, 273 Ga.
871, 871 (548 SE2d 296) (2001) (concluding that where both
prosecutors testified at the hearing on the motion for new trial that
the defendant was present for a portion of voir dire held in
chambers, the trial court did not err in ruling against the
46
defendant’s claim that the court violated his right to be present by
excluding him from that portion).
6. Appellants all contend that the trial court violated the
continuing witness rule by allowing the jury to watch the
surveillance videos in the jury room. “However, the continuing
witness rule is directed at written testimony that is heard by the
jury when read from the witness stand.” Moore, 311 Ga. at 511. “The
rule is based on the principle that it is unfair and places undue
emphasis on written testimony that has been read to the jury for the
writing to be sent out with the jury to be read again during
deliberations whereas oral testimony is received by the jury only
once.” Id. at 511-512. Here, the surveillance videos were “not the
reduction to writing of an oral statement, nor a written statement
provided in lieu of testimony.” Clarke v. State, 308 Ga. 630, 636 (842
SE2d 863) (2020) (cleaned up). Instead, they were “original
documentary evidence,” they “did not derive their evidentiary value
solely from the credibility of their makers,” and they were “properly
allowed to go out with the jury.” Id. (cleaned up). Accordingly, the
47
trial court did not err in overruling Appellants’ continuing witness
objection. See id. at 637. Accord Moore, 311 Ga. at 511-512 (holding
that the continuing witness rule did not apply to a computer
presentation prepared by a detective that summarized cell phone
records that had been admitted into evidence); Clarke, 308 Ga. at
636-637 (holding that the continuing witness rule did not apply to a
printout of text messages that the defendant had sent to the victim
and which had been read to the jury during trial); Windhom v. State,
326 Ga. App. 212, 214-215 (756 SE2d 296) (2014) (holding that the
trial court did not violate the continuing witness rule by allowing a
surveillance video to go out with the jury, explaining that “unlike a
videotaped interview or a transcript of testimony, the video
recording . . . is independent and original evidence, in and of itself,
and does not depend on the credibility of the maker for its value”)
(cleaned up). 10
10 Appellants rely on Lyons v. State, 309 Ga. 15, 17-19 (843 SE2d 825)
(2020), to claim that the trial court erred in permitting the jury to re-watch the
video surveillance footage in the jury room. Lyons, however, is inapplicable.
There, the defendant contended that the trial court violated the continuing
48
7. Muse and Darious contend that the State failed to timely
provide discovery of evidence of text messages and other data
extracted during the “phone dump” of Muse’s cell phone by
Investigator Watkins. 11 See OCGA § 17-16-4 (a) (3) (A). As a result,
they contend, the trial court erred by failing to exclude the evidence
and by failing to grant their motions for mistrial.
Two days after Watkins testified about the data extracted from
Muse’s cell phone, Appellants contended that they had not been
provided this information as part of discovery and that the discovery
violation meant that they had been unable to prepare for Watkins’s
witness rule by permitting the jury to re-read two witnesses’ written
statements to police, re-watch a video-recording of a witness’s statement to
police, and re-watch a surveillance video from an apartment complex. We did
not address whether the surveillance video was subject to the rule, but decided
the case simply on the ground that the rule was not violated because the jury
viewed all the evidence in the courtroom and not in the jury room. Lyons
therefore cannot be read as standing for the proposition that surveillance
videos are subject to the continuing witness rule. See Palmer v. State, 282 Ga.
466, 468 (651 SE2d 86) (2007) (“[D]ecisions of this Court do not stand for points
that were neither raised by the parties nor actually decided in the resulting
opinion,” and “questions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be considered as having
been so decided as to constitute precedents.” (cleaned up)).
11 In denying Muse’s and Darious’s motions for new trial, the trial court
found that the State did comply with discovery requirements for this evidence.
Muse and Darious disagree with this finding, but we need not resolve the
disagreement to decide this appeal.
49
testimony and had made the trial unfair, entitling them to a
mistrial. They also moved to exclude the evidence based on the
discovery violation. The trial court denied both motions and granted
Appellants a continuance in order for Appellants to have an
opportunity to review the cell phone evidence.
With regard to Muse’s and Darious’s mistrial motion, because
the record shows that they did not move for a mistrial until two days
after the testimony in question, the mistrial issue is not preserved
for appellate review. See Bedford v. State, 311 Ga. 329, 332-333 (857
SE2d 708) (2021) (holding that because the defendants “moved for a
mistrial after, not contemporaneously with, the State’s improper
closing argument, the motion was untimely and the issue was not
preserved for appellate review”), disapproved in part on other
grounds by Clark v. State, 315 Ga. 423, 435 n.16 (883 SE2d 317)
(2023).
With regard to Muse and Darious’s claim that the trial court
should have excluded evidence of the “phone dump” because of a
discovery violation, they likewise did not timely raise this issue at
50
trial, waiting two days after Watkins’s testimony to do so.
Accordingly, we review this claim for plain error. See OCGA § 24-1-
103 (d).12 To show plain error, Appellants
must point to an error that was not affirmatively waived,
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.
Grier v. State, 313 Ga. 236, 240-241 (869 SE2d 423) (2022).
OCGA § 17-16-4 (a) (3) (A) required the State, as it concedes,
to permit Muse and Darious to inspect and copy the data extracted
from Muse’s cell phone “no later than ten days prior to trial or as
otherwise ordered by the court.” “OCGA § 17-16-6 provides that if
the 10-day deadline is not met, the trial court can elect various
remedies short of exclusion, including granting a continuance.”
Harris v. State, 313 Ga. 653, 666 (872 SE2d 732) (2022). Moreover,
“[t]he State may be prohibited from introducing evidence that was
12We assume without deciding that the trial court’s refusal to exclude
the evidence of the cell phone data is subject to plain error review under OCGA
§ 24-1-103 (d).
51
not timely disclosed only upon a showing of both prejudice to the
defendant and bad faith by the State.” Id. (cleaned up). We review a
trial court’s decision under OCGA § 17-16-6 for an abuse of
discretion. See Wyatt v. State, 300 Ga. 509, 511 (796 SE2d 701)
(2017).
Muse and Darious have not shown clear error because they
have not shown that if they had timely objected to the lack of proper
notice, the exclusion of the evidence would have been required. Here,
when Muse and Darious made their untimely objection, they did not
make any argument, or offer any evidence showing, that the
prosecution had acted in bad faith in failing to provide timely notice
of the cell phone data. Moreover, the trial court granted them a
continuance from 10:00 a.m. Friday morning until trial reconvened
on Monday. That Friday morning, the prosecutor provided defense
counsel with the cell phone data, and the trial court informed
defense counsel that, on Monday, they could present any evidence
regarding the data that they needed to. When the trial reconvened
on Monday, Muse and Darious did not claim that they had an
52
inadequate amount of time to review Muse’s cell phone data. Under
these circumstances, we cannot conclude that if Muse and Darious
had made a timely objection, the trial court would have excluded the
evidence instead of granting a continuance or fashioning some other
remedy, as permitted by OCGA § 17-16-6. Muse and Darious
therefore have not satisfied their burden to show clear error. See
Grier, 313 Ga. at 242-243 (holding that, under plain error review,
the defendant failed to show clear error for lack of timely notice
regarding a witness’s testimony because the exclusion of the
witness’s testimony would not have been required had the defendant
made a timely objection given that “absent a showing of prejudice to
the defendant and bad faith by the State, the ordinary remedy for
failure to comply with a requirement that a witness must be
identified prior to trial is simply a continuance to allow for an
interview of the witness” and given that “we assume that the trial
court would have followed the law if an objection to notice had been
made”).
53
8. In their motions for new trial, Muse and Darious claimed
that they were entitled to a new trial on the ground that the State
violated their due process rights under Brady v. Maryland, 373 U.S.
83 (83 SCt 1194, 10 LE2d 215) (1963), by failing to disclose before
trial evidence of the text messages and other data extracted from
Muse’s cell phone. The trial court rejected these claims, and on
appeal, Muse and Darious contend that the trial court erred in doing
so. We disagree.
To prevail on their Brady claims, Muse and Darious must show
that
(1) the State possessed evidence favorable to [their]
defense; (2) [they] did not possess the favorable evidence
and could not obtain it [themselves] with any reasonable
diligence; (3) the State suppressed the favorable evidence;
and (4) had the evidence been disclosed to the defense, a
reasonable probability exists that the outcome of the trial
would have been different.
Harris v. State, 313 Ga. 653, 664 (872 SE2d 732) (2022) (cleaned up).
“The burden of proof on these elements lies with the defendant.” Id.“To establish the fourth prong, often referred to as materiality, a
defendant does not need to show that he necessarily would have
54
been acquitted, but only that the State’s evidentiary suppression
undermines confidence in the outcome of the trial.” Anglin v. State,
312 Ga. 503, 510 (863 SE2d 148) (2021) (cleaned up). Moreover, “[i]n
the case of an untimely disclosure, a defendant must show that an
earlier disclosure would have benefited the defense and that the
delayed disclosure deprived him of a fair trial” or “materially
prejudiced his defense.” Id. at 510-511 (cleaned up). “On appeal, we
review a trial court’s factual findings regarding a Brady claim for
clear error but review de novo the court’s application of the law to
the facts.” Downer v. State, 314 Ga. 617, 633 (878 SE2d 537) (2022).
As for Muse’s Brady claim, the trial court denied it, ruling that
Muse “made no showing that the cellphone extraction was favorable
to his case.” On appeal, Muse does not point to any data extracted
from his phone that he contends was exculpatory, and we conclude
that Muse has failed to carry his burden to show that the evidence
was exculpatory. In fact, the messages to which Investigator
Watkins testified were highly inculpatory, showing Muse’s
involvement with the Nine Trey Bloods and his concern, shortly
55
after the crimes, with moving “that stick,” with the news, and with
“7/62 by 39” ammunition. Accordingly, we conclude that Muse’s
Brady claim is without merit. See Hall v. State, 286 Ga. 358, 360-
361 (687 SE2d 819) (2010) (holding that the defendant’s Brady claim
was without merit because he failed to show that the State
possessed evidence favorable to him).
With regard to Darious’s Brady claim, the trial court noted that
the cell phone extraction contained information favorable to Darious
in that his name was not found on Muse’s phone. It ruled, however,
that, even assuming that the evidence was not disclosed pretrial but
only during trial, Darious had not shown that the delayed disclosure
deprived him of a fair trial because Darious used the “favorable
information from the cellphone extraction—i.e., his absence from
Muse’s cellphone data—to distance himself from Muse . . . at trial.”
We conclude that the trial court did not err.
At trial, after Appellants claimed that they had not received
the information extracted from Muse’s phone before trial, the trial
court granted a continuance from 10:00 a.m. Friday morning until
56
trial reconvened on Monday. The trial court also informed defense
counsel that, on Monday, they could present any evidence regarding
the “phone dump” that they needed to. That Monday, Appellants did
not present any evidence regarding Muse’s phone records. But, in
closing argument, Darious’s counsel noted that the State had
presented “a ton of phone records for Durell Muse,” and argued that
“[t]here’s no indication my client knew Durell Muse . . . . No
indication at all. Diablo does not appear on his contacts list. Darious
Harris doesn’t appear on his contacts list. Darious Harris’s face does
not appear in any of the videos that you were presented.”
On appeal, Darious contends that the exculpatory evidence
from the “phone dump” was that “the phone records did not contain
any reference to [him].” As the foregoing discussion of closing
arguments shows, Darious highlighted the relevant exculpatory
evidence for the jury in closing. Accordingly, we conclude that
Darious has failed to carry his burden to show that any delayed
disclosure “materially prejudiced him or deprived him of a fair trial.”
Anglin, 312 Ga. at 512-513 (holding that the defendant’s claim that
57
the delayed disclosure of certain evidence violated Brady was
without merit because the defendant was able to establish the point
that he wanted to make with that evidence through the use of other
evidence and therefore “failed to establish that the delayed
disclosure materially prejudiced him or deprived him of a fair trial”).
9. Darious contends that the State violated OCGA § 17-16-8
and his due process rights by failing to disclose McKenzie as a
witness at least ten days before trial13 and that the trial court abused
its discretion by failing to exclude McKenzie’s testimony. We
disagree.
(a) We have stated that the requirements of § 17-16-8 (a) are
designed to prevent a defendant from being surprised at
trial by a witness that the defendant has not had an
opportunity to interview. Moreover, the trial court may
13 OCGA § 17-16-8 (a) provides:
The prosecuting attorney, not later than ten days before trial, . . .
shall furnish to the opposing counsel . . . the names, current
locations, dates of birth, and telephone numbers of that party’s
witnesses, unless for good cause the judge allows an exception to
this requirement, in which event the counsel shall be afforded an
opportunity to interview such witnesses prior to the witnesses
being called to testify.
58
allow an exception to the rule where good cause is shown
and counsel is afforded an opportunity to interview the
witness.
Hines v. State, 313 Ga. 1, 4 (867 SE2d 85) (2021) (cleaned up). Here,
the trial court determined that the State had established good cause
for not complying with the statutory requirements and ensured that
Darious was given an opportunity to interview McKenzie. On the
third day of trial, just before the State was going to call McKenzie to
testify, Jujuane objected to him testifying, stating that the State had
not timely disclosed McKenzie as a witness.14 Jujuane argued that
the late notice did not comply with discovery requirements and that
the trial court should exclude his testimony. In response, the
prosecutor stated that she had only discovered McKenzie as a
witness the same week that she had provided his name and birth
date to defense counsel and that she had provided that information
14 Darious did not specifically join in Jujuane’s objection. However, at the
beginning of trial, Darious’s counsel stated that when one of defense counsel
objected, the others would all adopt the objection unless it was separately noted
for the record. The trial court responded, “All right.” The State does not contend
that Darious failed to preserve this issue for appeal, and we assume for
purposes of this appeal that the issue was properly preserved.
59
ten days before trial. Defense counsel did not dispute that the State
had only discovered McKenzie shortly before trial, but contended
that the notice of McKenzie as a witness was provided just ten days
before he was called as a witness at trial and that the State had not
provided his phone number and address, as required by OCGA § 17-
16-8 (a).15 The record also shows that Darious was afforded the
opportunity to interview McKenzie before he was called as a witness,
but that McKenzie declined to be interviewed. The trial court denied
the motion to exclude McKenzie from testifying, noting that defense
counsel had been given an opportunity to interview him. Also, as a
condition for permitting McKenzie to testify, the trial court required
the State to provide defense counsel with a printout of McKenzie’s
criminal history, which the State did. Under these circumstances,
we conclude that the trial court did not abuse its discretion in
allowing an exception to the requirements of OCGA § 17-16-8 (a).
15 In its order denying Darious’s motion for new trial, the trial court
found that McKenzie’s name was not provided as a witness at least ten days
before trial, but ruled against Darious’s claim that the court had erred in
permitting Darious to testify.
60
See Hines, 313 Ga. at 2-4 (holding that the trial court did not abuse
its discretion in determining that there was good cause for a late-
disclosed witness to testify where the prosecutor told the court on
the morning of the first day of trial that he had only that morning
become aware of the witness’s name and contact information and
had given defense counsel an opportunity to speak with the witness);
Norris v. State, 289 Ga. 154, 157 (709 SE2d 792) (2011) (holding that
the trial court did not abuse its discretion in denying a continuance
for the State’s late disclosure of certain witnesses in part because,
even though the witnesses “declined an interview, as was their
prerogative,” the defendant had been given the opportunity to
interview them (cleaned up)).
(b) Darious also contends that the untimely disclosure of
McKenzie as a witness violated due process but this claim was not
raised at trial, and we therefore review it only for plain error. See
OCGA § 24-1-103 (d). Darious’s sole argument on this point is that
“[t]he untimely disclosure was a due process violation. Smith v.
61
Estelle, 602 F2d 694 (5th Cir. 1979).”16 Smith, however, involved
considerations unique to the penalty phase of a death penalty trial
and is easily distinguishable from this case. There, the State failed
to disclose that a psychiatrist who had interviewed the defendant
before trial would appear as a witness at the death penalty phase of
the defendant’s trial. The trial court permitted the psychiatrist to
testify, and he gave damaging testimony about the defendant’s
future dangerousness. See id. at 696-697. The Fifth Circuit held that
permitting the psychiatrist to testify violated due process,
explaining that the “informality and relaxed procedures” that
permitted the testimony could not “possibly outweigh the risk that
the state may execute a person who would not have been sentenced
to death if the jury had had full and accurate sentencing information
an indispensable prerequisite to a reasonable determination of
16 Darious does not cite to either the Georgia or United States
Constitutions to support this due process claim, but simply cites to the Smith
case. Because that case involved a claim under the United States Constitution,
we do not analyze Darious’s claim under the Georgia Constitution’s Due
Process Clause. See Ga. Const. of 1983, Art. I, Sec. I, Par. 1.
62
whether a defendant shall live or die.” Id. at 702 (cleaned up). 17
Darious fails to acknowledge that “[t]here is no general
constitutional right to discovery in a criminal case.” Weatherford v.
Bursey, 429 U.S. 545, 559 (97 SCt 837, 51 LE2d 30) (1977). Accord
Bello v. State, 300 Ga. 682, 683 (797 SE2d 882) (2017) (quoting
Weatherford for that proposition). In Weatherford, the defendant
argued that due process required the prosecution to disclose before
trial the names of witnesses who would testify against him and
prohibited the prosecutor from presenting at trial the surprise
testimony of an undercover agent. See id. The Court in Weatherford
rejected that argument. See id. at 559-561. We have held, however,
that due process may require that the accused upon timely request
be afforded a meaningful opportunity to have “critical evidence
whose nature is subject to varying expert opinion” examined by his
own lawyers and experts before trial. Sabel v. State, 248 Ga. 10, 18
(282 SE2d 61) (1981) (holding that due process demanded that the
17The decision of the Fifth Circuit was affirmed on other grounds by the
United States Supreme Court. See Estelle v. Smith, 451 U.S. 454, 462 (101 SCt
1866, 68 LE2d 359) (1981).
63
accused be afforded an opportunity to have paint samples that were
subject to varying expert opinions examined by an expert of his
choosing). Accord Reaves v. State, 284 Ga. 181, 190 (664 SE2d 211)
(2008) (explaining that the defendant was not “entitled to have an
expert examine evidence such as a tape recording unless it
constitutes critical evidence whose nature is subject to varying
expert opinion” (cleaned up)). Here, however, because McKenzie’s
testimony did not involve “critical evidence whose nature is subject
to varying expert opinion,” Sabel, 248 Ga. at 18, the due process
principles of Sabel do not apply.
In sum, Darious has pointed to no controlling authority holding
that due process required the State to disclose McKenzie as a
witness before trial. He has therefore failed to carry his burden to
show clear error. See Williams v. State, ___ Ga. ___ (___ SE2d ___)
(2023 WL 3468114, at *3 (May 16, 2023) (“As to the second part of
the [plain error] test, an error is plain if it is clear or obvious under
current law. An error cannot be plain where there is no controlling
authority on point or if a defendant’s theory requires the extension
64
of precedent.” (cleaned up)); Grier, 313 Ga. at 240-241 (holding that
under the second part of the plain error test, a defendant must point
to an error that is “clear and not open to reasonable dispute”); Ash
v. State, 312 Ga. 771, 794-795 (865 SE2d 150) (2021) (holding that
the trial court’s failure to give a portion of a jury instruction was not
plain error, in part, because the defendant “has pointed to no
precedent holding that the omission of this sentence from the
pattern instruction constitutes error under these circumstances.”).
10. Darious and Jujuane contend that the trial court erred in
denying their motions to sever their trials from their co-defendants
and each other. We disagree.
“In a murder case where the death penalty is not sought, the
trial court has broad discretion to grant or deny a motion for
severance.” Hurston v. State, 310 Ga. 818, 825 (854 SE2d 745)
(2021).
In ruling on a motion to sever, a trial 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.
65
Collins v. State, 312 Ga. 727, 735 (864 SE2d 85) (2021) (cleaned up).
“When claiming on appeal that a trial court abused its discretion in
denying a severance motion, a defendant must do more than show
the presence of antagonistic defenses or possibility that a separate
trial would give a defendant a better chance of acquittal.” Sillah, 315
Ga. at 750 (cleaned up). Rather, “[t]he defendant must make a clear
showing that the joint trial was so prejudicial as to amount to a
denial of his right to due process.” Id. (cleaned up).
Darious and Jujuane both argue that there was a likelihood of
confusion of the evidence and that prejudicial gang evidence against
Rosenau and Muse spilled over to them. In this vein, Jujuane also
argues that the evidence against his co-defendants was more
substantial than the evidence against him, pointing to the lack of
evidence that he possessed a firearm.
With regard to whether the jury might have become confused
regarding the evidence, we have concluded it is unlikely that a jury
would confuse the evidence where, as here, co-defendants are
66
“charged with the same offenses stemming from the same incident
with largely the same evidence; the jury was instructed to determine
guilt or innocence of each defendant separately; the jury returned a
separate verdict for each defendant; and the jury was instructed on
mere association, mere presence, and parties to a crime.” Draughn
v. State, 311 Ga. 378, 386-387 (858 SE2d 8) (2021). Moreover, “the
fact that the evidence as to one of the co-defendants is stronger does
not demand a finding that the denial of a severance motion is an
abuse of discretion, where there is evidence showing that the
defendants acted in concert.” Smith v. State, 308 Ga. 81, 86-87 (839
SE2d 630) (2020) (cleaned up).
As for Jujuane’s contention that he should not have stood trial
with the other three co-defendants because the State did not offer
evidence that he possessed a firearm and was a shooter, we have
concluded that this factor does not require severance where the
State presents evidence, as here, that “co-defendants acted in
concert,” making it unnecessary “under the applicable law on party
to a crime to show that any specific co-defendant physically
67
possessed a weapon for that defendant to be convicted.” Id. at 86.
With regard to Darious’s and Jujuane’s claim that gang evidence
relating to Muse and Rosenau spilled over to them, we note that
McKenzie and Sergeant Gaither testified that Darious and Jujuane
were members of the Bloods gang, and some evidence of Rosenau’s
and Muse’s gang membership would likely have been admissible
against Jujuane in a separate trial given that the State’s theory
under the street gang count was that members of the Bloods gang
acted in concert to attack members of the Crips gang over a dispute.
See Saylor, ___ Ga. at ___ (2023 WL 3183590, at *5) (holding that
gang evidence against two co-defendants did not warrant a
severance as some evidence regarding those co-defendant’s gang
activity would likely have been admissible in a separate trial based
on the State’s theory on the gang count of the indictment that the
defendants acted in concert as gang members and as “there is no
clear showing that this evidence prejudiced [the defendant] given
the evidence of [his] gang membership”).
68
Moreover, Darious and Jujuane have not shown that their co-
defendants’ defenses were antagonistic to theirs. Darious and
Jujuane both acknowledged that they were at the crime scene and
that they knew members of the Bloods gang, but claimed that they
did not participate in any plan to commit the crimes and did not
shoot at members of the Crips gang. Darious and Jujuane did not
implicate each other in the crimes. Muse, meanwhile, admitted
being a member of the Bloods gang, but denied being present at the
crime scene and did not implicate Darious and Jujuane as being
members of the Bloods or as being participants in the shooting.
Forehand’s defense, like those of Darious and Jujuane, was that she
was present at the crime scene but that she did not participate in or
plan the shooting. Like Muse, Forehand did not testify that she saw
Darious or Jujuane shoot at anyone. See Young v. State, 315 Ga. 208,
213 (881 SE2d 689) (2022) (holding that the defendants “did not
raise antagonistic defenses, such as each one saying the other shot
[the victim]”). Finally, Darious and Jujuane have not shown how any
potential antagonistic defenses prejudiced their trials. See Krause v.
69
State, 286 Ga. 745, 750 (691 SE2d 211) (2010) (“[U]nless there is a
showing of resulting prejudice, antagonistic defenses do not
automatically require a severance.” (quoting Green v. State, 274 Ga.
686, 688 (558 SE2d 707) (2002)).
For the foregoing reasons, we conclude that Darious and
Jujuane have failed to make the clear showing that being tried with
their co-defendants and each other was so prejudicial as to amount
to a denial of due process.
11. Muse contends that his trial counsel was constitutionally
ineffective in failing to object to hearsay testimony by Davis
regarding statements that Bell made at the crime scene to a law
enforcement officer and later to her. Even assuming that counsel did
fail to object to Davis’s testimony, we disagree.
To establish that his trial counsel was constitutionally
ineffective, Muse was required to prove both deficient performance
by counsel and resulting prejudice. See Strickland v. Washington,
466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To show that
his lawyer’s performance was deficient, Muse had to demonstrate
70
that the lawyer performed his duties in an objectively unreasonable
way, considering all the circumstances and in the light of prevailing
professional norms. See id. at 687-688. The law recognizes a “strong
presumption” that counsel performed reasonably, and the defendant
bears the burden of overcoming this presumption. Id. at 689. To
carry this burden, Muse must show that “no reasonable lawyer
would have done what his lawyer did, or would have failed to do
what his lawyer did not.” Washington v. State, 313 Ga. 771, 773 (873
SE2d 132) (2022) (quoting Davis v. State, 299 Ga. 180, 183 (787
SE2d 221) (2016)). Even when a defendant has proved that his
counsel’s performance was deficient, he also must prove resulting
prejudice by showing “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. Moreover, “there
is no reason for a court deciding an ineffective assistance claim . . .
to address both components of the inquiry if the defendant makes
an insufficient showing on one.” Id. at 697.
71
We pretermit whether trial counsel performed deficiently in
failing to make hearsay objections to Davis’s testimony, as Muse
cannot show the requisite prejudice. In this regard, Muse first
contends that trial counsel should have objected to Davis’s
testimony that, on the night of the crimes, Bell gave the same
account to law enforcement officers of what happened as she did. 18
Muse also contends that trial counsel performed deficiently in
failing to object to Davis’s testimony that she and Bell discussed
whether he wanted to come to court to testify. Davis testified that
Bell “didn’t say [that he wanted to come] all of the time, but he was
coming.” 19 Muse contends that Davis’s hearsay testimony added
extra weight to the State’s case and prejudiced his defense.
But, with regard to Davis’s testimony that Bell’s statement on
the night of the crimes to law enforcement officers was the same as
18 Davis did not testify about what she told law enforcement officers on
the night of the crimes, but the parties agree that the State, with this question
to Davis about Bell’s statement on the night of the crimes, was attempting to
establish that on the night of the crimes Bell told law enforcement officers that
a bullet struck their car.
19 On direct examination, Bell was asked by the State if he wanted “to
come here today” to testify. Bell responded that he “would rather not, because
[he] work[ed] at night.”
72
hers, Davis unequivocally testified that a bullet struck the car in
which she and Bell were riding, and Bell testified that he merely
“assum[ed]” that a brick hit the car, that a bullet could have hit the
windshield, and that he did not “know what the object was.” In
addition, Bell acknowledged that at the time an object hit their
windshield, “a lot of shooting started” and that he ducked down,
“went into defense mode,” was “trying to get out of harm’s way,” and
was “trying not to get shot.” Finally, the jury heard evidence that 59
shots were fired that night, and the evidence showed that they were
fired in the direction of Bell’s car. Given this evidence, we conclude
that Muse has failed to establish that, even if counsel had raised a
hearsay objection and the trial court had excluded Davis’s testimony
about Bell’s statement on the night of the crimes, there is “a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. See Payne v. State, 314 Ga. 322, 330 (877 SE2d 202)
(2022) (holding that even if counsel was ineffective in failing to
object to hearsay evidence, the defendant failed to show prejudice
73
because the hearsay evidence was cumulative of other evidence
admitted at trial).
In addition, Muse makes no specific argument about how
Davis’s testimony—that Bell said that he was reluctant to testify,
but would nevertheless come to court and do so—was prejudicial.
We conclude that Muse has failed to establish that, if counsel had
objected to this testimony and the trial court had excluded it from
evidence, “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. Finally, we conclude that the
cumulative prejudice from the assumed deficiencies is insufficient to
show a reasonable probability that the results of the proceedings
would have been different in the absence of the alleged deficiencies.
See Jones v. State, 305 Ga. 750, 757 (827 SE2d 879) (2019)
(explaining that “the effect of prejudice resulting from counsel’s
deficient performance is viewed cumulatively”). 20
20In addition to the two assumed deficiencies on the part of Muse’s trial
counsel, we have concluded that the trial court made two errors regarding
74
11. Darious contends that he is entitled to a new trial because
“the State now concedes that ‘the record as it currently stands does
not truly or fully disclose what transpired in the trial court.’” We
disagree.
The “concession” to which Darious refers was made in a motion
to reconstruct the record filed by the State before the second hearing
on the motion for new trial. The motion alleged that the transcript
did not accurately reflect the discussion between the court and
counsel regarding the second and third jury notes. At the hearing,
testimony was taken regarding those discussions. Moreover, the
transcript filed on appeal does contain the discussion between the
Appellants’ right to counsel when discussing the jury notes. Muse, however,
has not raised a cumulative-error claim, and neither have Darious and
Jujuane. Even assuming that these errors should be considered cumulatively,
we conclude that Muse and the Harris brothers have failed to establish
cumulative prejudice in this case. See Priester v. State, ___ Ga. ___ (___ SE2d
___) (2023 WL 2975644, at *5 n.5) (Apr. 18, 2023) (“Appellant has not raised a
cumulative-error claim, and we discern no cumulative prejudice from the
evidentiary and instructional errors we assume.”); Jones v. State, 314 Ga. 605,
617 n.9 (878 SE2d 505) (2022) (explaining that where a defendant seeks a new
trial “based on the cumulative effect of errors outside of the evidentiary
context, he would do well to explain why cumulative error should be extended
beyond the evidentiary context” (cleaned up)).
75
court and counsel regarding the third jury note. See Div. 5 (a) above.
To the extent that Darious is contending that the State’s mere
allegation in its motion that the record was incomplete requires a
new trial, Darious failed to preserve the issue for appeal because he
could have but did not raise that issue during the second motion-for-
new-trial hearing at which the parties offered evidence relevant to
reconstructing the record. See Benton, 300 Ga. at 205. Moreover, to
the extent that Darious is contending that he is entitled to a new
trial because he has been “deprived of an adequate trial transcript”
for appeal and therefore “has effectively been denied his right to
appeal,” Gadson v. State, 303 Ga. 871, 877 (815 SE2d 828) (2018),
we disagree. Here, the only jury-note discussion missing from the
transcript is the discussion regarding the second note. And if, as
here, “an otherwise verbatim transcript is missing only one or a few
parts of the trial, the appellant is not entitled to a new trial unless
he alleges that he has been harmed by some specified error involving
the omitted part and shows that the omission prevents proper
appellate review of that error.” Id. at 878. Darious has failed to make
76
that showing here, as this Court was able to determine that any
violation of Darious’s right to counsel relating to the second note was
harmless and that there was no violation of his right to be present
for the discussion of that note. See Div. 5 (c), (d) above. Accordingly,
this claim is without merit.
Judgments affirmed. All the Justices concur.
77