Ash v. State

In the Supreme Court of Georgia
Decided: November 2, 2021
S21A0771. ASH v. THE STATE.
BETHEL, Justice.
A Fulton County jury found Jabarri Ash guilty of malice
murder and other crimes arising from the shooting death of Mario
Shaw. On appeal, Ash argues that the trial court erred by admitting
evidence of his prior convictions pursuant to OCGA § 24-4-404 (b);
that the trial court erred by admitting, pursuant to OCGA § 24-8-
807, evidence of certain statements made by Shaw; that the State
improperly destroyed exculpatory evidence; that the trial court
plainly erred in its instructions to the jury; and that the cumulative
harm of these errors affected the trial’s outcome such that he should
receive a new trial. For the reasons set forth below, we affirm. 1
1The crimes occurred on February 21, 2013. On June 28, 2013, a Fulton
County grand jury returned an indictment against Ash charging him with
1. The evidence presented at trial showed the following. 2 Ash,
Shaw, Brian Terrell, David Minor, and Jonathan Ash (Ash’s brother)
were friends who grew up together in Atlanta. Beginning in high
school, they were in the business of selling cocaine and marijuana.
Ash was known to carry a .44- or a .38-caliber revolver. Terrell
testified that Ash was known by the nicknames “Big” and “Big Boy”
because “he was the biggest person around.” Jonathan drove a white
SUV that Ash also drove from time to time.
malice murder (Count 1), felony murder (Counts 2 and 3), aggravated assault
with a deadly weapon (Count 4), possession of a firearm by a convicted felon
(Count 5), and possession of a firearm during the commission of a felony (Count
6). A jury trial held from August 25 to September 2, 2015, ended in a mistrial.
Ash was later re-tried from March 15 to March 25, 2016, and the jury found
him guilty of all counts. On March 30, 2016, the trial court sentenced Ash to
life in prison on Count 1 and terms of five years in prison each on Counts 5 and
6, to be served concurrently with Count 1. The remaining counts were merged
for sentencing or vacated by operation of law. On April 4, 2016, Ash filed a
motion for new trial, which he amended through new counsel on June 21, 2019,
and February 17, 2020. The trial court held two hearings on the motion, as
amended, and denied the motion on December 7, 2020. Ash filed a notice of
appeal on December 28, 2020. This case was docketed in this Court to the term
commencing in April 2021, and oral argument was held on June 9, 2021.
2 Because, as discussed below, we must determine whether an assumed
error on the part of the trial court was harmless, “we review the evidence de
novo and weigh it as a reasonable juror would, rather than reviewing it in a
light most favorable to upholding the jury’s verdicts of guilty.” (Citation
omitted.) Taylor v. State, 306 Ga. 277, 283 (2) (830 SE2d 90) (2019).
2
In December 2012, Jonathan was driving his SUV with Shaw
in the passenger seat when they were stopped by the police at a DUI
checkpoint. After smelling unburnt marijuana and seeing
marijuana and an open container of alcohol on the rear floorboard of
the SUV, the police arrested Jonathan and Shaw and searched
them. The police found marijuana and $1,004 in cash on Shaw’s
person. Jonathan had over $10,000 in cash, but he had no drugs on
his person. Because the marijuana appeared to be packaged for
distribution, the police charged both men with possession of
marijuana with intent to distribute and impounded the SUV.3
Jonathan was again arrested in January 2013 for aggravated
battery and armed robbery. At the time of the arrest, Jonathan had
more than $75,000 in cash in a shoebox in his vehicle, a red sedan.
The group used Jonathan’s house to store drugs. Shaw told
Terrell that he was at the house when he heard that the police had
arrested Jonathan. Apparently anticipating a search, Shaw
3 A police officer testified that no “hold” was placed on the vehicle after
it was impounded.
3
retrieved what he thought were all of the illegal drugs in the house
and took them to his mother’s house. The police later searched
Jonathan’s house. During the search, the police found 16 ounces of
cocaine, 13 ounces of marijuana, two jars containing marijuana
residue, and 29 Ecstasy pills in the house. At some point following
the search of Jonathan’s house, Shaw returned the drugs, but Ash
accused him of not returning all of the drugs he had taken.
Terrell talked with Shaw about being arrested with Jonathan,
and Terrell was among those (including Ash) who thought that
Shaw should “take the charge” and exonerate Jonathan. In their
conversation, Shaw said that he knew Ash blamed him for
Jonathan’s arrests and that Ash believed the drugs in Jonathan’s
SUV and house actually belonged to Shaw. According to Terrell, Ash
and Shaw had a “heated” conversation about the drugs. Ash was
“upset” with Shaw for not taking the blame for the drugs. Even after
Shaw took the drugs from the house before the police search, Shaw
told Terrell that he thought Ash was still “upset” with him. Despite
his anger with Shaw, Ash continued to provide Shaw with drugs to
4
sell.
In early February 2013, Letavia Gowdy and her mother,
Denise Gowdy, moved into Shaw’s apartment. Shaw sold marijuana
at the apartment, and he told Letavia and Denise to lock all the
doors when they left the apartment. Denise testified that people
were regularly coming to the apartment to buy drugs when Shaw
was there.
Denise testified that, during the first week she was staying in
the apartment, Ash, whom she only knew as “Big Boy” at the time,
visited Shaw three times.4 On the first visit, Ash and Shaw had a
“tense” and “hostile” argument regarding an incident between Shaw
and Ash’s brother. On the second visit, Shaw did not allow Ash into
4During an interview with the police, Denise viewed a six-person
photographic lineup prepared by the police. Denise identified one of the
photographs as a person she said looked like “Big Boy.” The detective who
conducted the photo lineup testified that Denise identified Ash in the lineup,
and the lineup with Denise’s identification of “Big Boy” was admitted into
evidence at trial. Denise was also able to show the police where Ash lived. His
apartment was roughly a ten-minute drive from Shaw’s apartment, which
Denise knew because she had gone there with Shaw. Denise told the police and
testified at trial that “Big Boy” wore glasses and was “overweight” with a
“caramel” complexion. At trial, Denise identified Ash as “Big Boy” by pointing
him out in the courtroom.
5
the apartment. On the third visit, Denise told Ash that Shaw was
not there. On that visit, Denise saw a white SUV parked outside.
Denise described Shaw as “paranoid and annoyed” after Ash’s visits,
and she testified that she knew there were “issues” and “concerns”
between them. Letavia also noticed that Shaw’s demeanor changed
during this time. When she first met Shaw in early February, he was
“very nice,” but Letavia testified that he smiled less and seemed to
spend more time “in deep thought” by the middle of the month.
Letavia and Denise last saw Shaw alive around 7:00 or 8:00
p.m. on February 20, 2013, when Denise took Letavia to work. When
Letavia returned to the apartment around 3:30 a.m. on February 21,
she saw that the doors to the apartment were unlocked. She went
inside and saw Shaw lying on the floor with blood pooled around his
head. She also saw marijuana in the apartment. She did not see
anything out of place, and the apartment did not appear to have
been ransacked or robbed. She went outside, arranged a ride to the
house of a friend, and called 911 just before 4:00 a.m. Her friend took
her back to Shaw’s apartment, and they arrived as firefighters were
6
pulling into the complex. Denise also returned to the apartment
around 4:00 a.m.
Several police officers responded to the 911 call. Inside the
apartment, Shaw was dead, lying face down with his hands under
his body. The medical examiner determined that Shaw was shot
twice, once in the back of his head and once in his left lower torso.
The medical examiner recovered two bullets from Shaw’s body, and
a GBI firearms examiner determined that the same firearm fired
both bullets from what was either a Ruger, Colt, or High Standard
.38 Special revolver or a .357 Magnum revolver. The medical
examiner concluded that Shaw’s death was caused by the gunshots
to his head and torso and that the manner of death was homicide.
Prior to Shaw’s shooting, Roger Cook, the apartment complex’s
security guard, often saw a man he knew as “Big Boy” visiting Shaw
and driving a white SUV. In the weeks leading up to the shooting,
Cook noticed that Shaw became “stressed” and “worried,” acted
“strangely,” and began walking around with a handgun.
The night of Shaw’s shooting, Cook was watching television
7
and playing videogames in his townhome, which was across the
parking lot from Shaw’s apartment. Cook responded to a noise
complaint and told a person in a white SUV parked in front of
Shaw’s apartment to lower the music. 5 Cook then began a foot patrol
around the apartment complex and, moments later, saw “Big Boy”
in the white SUV as it drove quickly past him.6 As he continued his
5 Cook spoke with the lead detective at the crime scene and at a later
interview at the police station. Cook first stated that he spoke to the driver of
the SUV when responding to the noise complaint around 1:00 a.m. but later
said that it was between 2:30 and 3:00 a.m. Cook also said that the person he
spoke to had glasses, a beard, and a “dark complexion.” Cook initially told the
detective that he saw this man regularly but later said that he had never seen
that person before and that he “[couldn’t] remember” and “[didn’t] know” the
name or nickname of the man he spoke to. Cook also told the police that, while
doing his rounds after speaking to the person in the SUV, he saw a man sitting
in the driver’s seat of the SUV looking up at the apartment and then another
man with a “light complexion” and “matching the description of Big Boy,”
whom Cook “had seen before,” coming down the stairs of the apartment
building and getting into the passenger side of the SUV. Cook said that he had
previously seen this man coming to the apartment complex in a red Dodge
Charger. The detective who interviewed Cook testified that when he
interviewed Cook at the police station, some of his statements were consistent
with what Cook had said at the scene, but some of them were not. The detective
described Cook’s competing statements as “confusing.” During his cross-
examination, Cook stated that the person he spoke to in the SUV was “Big
Boy.” Cook described “Big Boy” as “broad, wearing black glasses with
rectangular shading; beard smooth; smooth, clean cut; . . . curly, wavy hair.”
The lead detective testified that this description Cook gave of “Big Boy” was
consistent with Ash’s appearance.
6 In its briefing, the State claims that Cook specifically identified Ash as
the man in the SUV, but a careful review of the record shows that Cook never
8
patrol, Cook saw that the front doors to Shaw’s apartment were wide
open and the lights inside the apartment were on. Cook saw Shaw’s
body on the floor and attempted to call the police. 7 Cook later
realized that a sound he had heard earlier while he was playing
videogames was likely a gunshot. 8
According to Nichole Stevens, Ash’s girlfriend at the time, Ash
specifically identified Ash as “Big Boy” or as the man he saw in the white SUV
the night of Shaw’s shooting. In addition, it appears that when shown a photo
lineup with Ash’s picture in it, Cook said the man he saw on the night of Shaw’s
shooting looked more like someone else in the lineup. Cook was not asked by
the prosecutor or defense counsel whether “Big Boy” was present in the
courtroom when he testified. During his direct examination, however, Cook
testified that as the white SUV drove past him, he was standing on the driver’s
side of the vehicle and that the area was well-lit. Cook testified that he was
“absolutely sure” that “Big Boy” was driving the SUV as it sped away.
7 Cook testified that he had poor cell phone reception and that the call
would not connect. He testified that he later realized that someone else had
called 911 when paramedics and police responded to the scene. These
statements appear to be contradicted by statements Cook made to the lead
detective when he was interviewed at the scene; in those statements, Cook
mentioned nothing about going up to Shaw’s apartment and suggested to the
detective that he only learned that there had been a shooting at the complex
when his brother knocked on his front door around 4:00 a.m.
8 During his testimony, Cook admitted that he had previously pled guilty
to impersonating a law enforcement officer in Chicago, Illinois. He explained
that in the 1990s, he worked with local police and bail bondsmen as a bounty
hunter and indicated that he had been arrested because “different states
recognize it, some states don’t” and that “Chicago didn’t allow bounty hunters
or bail bondsmen.” Cook also admitted that he pled guilty in 2005 to a separate
charge of impersonating an officer with the Fulton County Sheriff’s Office
when he identified himself as “Officer Cook” while working as a security officer.
9
was at her apartment in Riverdale on the evening Shaw was shot.
Stevens testified that they had a trip to Florida planned for the
following morning and that they had been packing and preparing for
it that day. At some point in the evening, Ash left the apartment and
“went on about his evening.”
Between 9:00 and 10:00 p.m. that night, Terrell was at the 50
Yard Line bar, which was about a ten-minute drive from Shaw’s
apartment at that time of night. Terrell was selling marijuana and
cocaine to several men he had met earlier in the week. They stayed
at the bar for “three or four” hours and then left to play pool at the
Brazilian Club near Camp Creek Parkway. Terrell returned to the
hotel where he was staying around 3:00 a.m.
Ash called Terrell just before 3:00 a.m. and told him to come
back to the 50 Yard Line bar. Terrell met him there around 3:30,
and the two stayed there until about 4:00 a.m. Just after 4:00 a.m.,
Ash sent Stevens a text message saying that Shaw had been “found
dead.” After Ash and Terrell left the 50 Yard Line, they went to the
Brazilian Club. They stayed until about 5:30 a.m. During their time
10
together, Ash did not mention anything about Shaw to Terrell.
Terrell said that Ash was driving a black sedan that belonged to
Stevens.
About 20 minutes after they left the Brazilian Club, Ash called
Terrell and asked if he could leave for Florida that day. According to
Terrell, this surprised him because he thought the trip was planned
for the following day.9 Terrell testified that one of the purposes of
the trip was to retrieve some cocaine that had been left with Minor
(who lived in Jacksonville, Florida) a few days before.
After Ash left the Brazilian Club, he drove to Stevens’s
apartment and showered and changed clothes. Stevens then washed
the clothes Ash had been wearing with her other laundry. In an
interview with the police and in her trial testimony, Stevens denied
that she destroyed the clothes Ash had been wearing when he came
to the apartment. 10
9 Terrell’s testimony appeared to contradict earlier statements he had
made to the police in which he told Ash at the 50 Yard Line, “we got to be up
and go in the morning if we supposed to be going.”
10 The lead detective testified that Stevens was not charged with murder
or with tampering with evidence.
11
Ash and Stevens left the house later in the morning and, after
picking up Terrell and his girlfriend, began driving to Jacksonville.
During the drive, Ash and Terrell began receiving calls about Shaw
being killed. According to Stevens, Ash and Terrell both reacted to
the news with “shock” and “disbelief.” According to Terrell, this was
the first time he had heard anything about Shaw’s death. After
overhearing the conversations, Stevens believed that Shaw’s murder
stemmed from “quarrels” or disagreements” involving Ash’s brother.
The group continued driving to Jacksonville and arrived in the early
afternoon.
Ash and Terrell met Minor, and the three drove around town
together. Minor testified that, while the three were in the car
together, Ash said that he had “finessed” Shaw by making him feel
comfortable and letting him into his apartment and that he then
killed Shaw by shooting him twice with a .44 or .38 revolver. 11 Minor
11 At trial, Terrell first testified that when he, Ash, and Minor were
together in Florida after Shaw’s shooting, Ash “didn’t say anything at all”
about the shooting. Terrell later testified that he overheard a “heated”
conversation in which Ash accused Minor of “finessing” some cocaine, meaning
12
testified that Ash said he killed Shaw because of money that Shaw
owed to Ash and because of “a charge that his brother caught when
him and [Shaw] were together.” According to Minor, Ash was also
angry with Shaw because he had given Shaw some cocaine but Shaw
never paid him for it. When Ash confronted Shaw about this at his
apartment, the two argued, Shaw refused to pay, and then Ash shot
him twice. Minor testified that he was upset when he learned that
Shaw had been killed but that Ash told him “You get what you get.
What you give out is what you get in return, like karma.” Minor took
this to mean that Ash was saying Shaw “got what he deserved.”
A few days after his conversation with Ash, Minor called the
Crime Stoppers anonymous tip line. He later spoke with the lead
that he diluted it by adding another substance to it. In that conversation,
Terrell also overheard Ash say something to Minor about “finessing” Shaw.
Terrell explained, however, that the conversation was solely about adding
substances to cocaine, not Shaw’s shooting. Terrell later testified that Ash and
Minor were also “clashing” because Minor had slept with Ash’s girlfriend,
Jasmine, a week or so before Shaw’s shooting. In his trial testimony, Minor
admitted that he and Jasmine had sex a few days before Shaw was killed and
that Ash had confronted him about it. Minor denied that he made up the story
about Ash confessing to Shaw’s killing because of his relationship with
Jasmine and denied that Ash had accused him of diluting drugs.
13
detective in the case to report that Ash had admitted killing Shaw. 12
Minor told the detective that Ash said he shot Shaw twice with a
revolver. 13 Minor told the detective that Ash said he shot Shaw for
“payback” for Jonathan being in jail for charges that Shaw should
have taken.
Minor also told the detective he had seen Ash driving a white
SUV when Ash visited him in Florida a few days before Shaw’s
shooting. The detective testified that the description Minor gave of
the SUV matched the description given by Cook and the Gowdys.
Minor also told the detective that Stevens told him that, on the night
12 In his testimony, Minor acknowledged that people who provide tips
that lead to an arrest or conviction may receive compensation and that he
asked to be paid for providing the tip, but he denied that he needed money or
that he reported the crime to get money. Minor explained that he called Crime
Stoppers because he and Shaw were friends. The defense also introduced
evidence that Minor pled guilty to grand theft in 2015 in Florida based on an
incident in which he stole $1,180 from a gas station.
13 The detective testified that, other than the Gowdys and Cook, Minor
was “one of the first” witnesses he spoke to about the shooting and that he was
the first witness to provide any information about the type of gun that might
have been used in the shooting. According to the detective, Minor’s statement
that Ash had used a revolver was consistent with the evidence at the crime
scene, where no shell casings had been recovered. The State presented
evidence that when a revolver is fired, the shell casings remain in the chamber
and are not automatically ejected as they would be when a pistol is fired.
14
of Shaw’s shooting, she washed the clothes Ash was wearing when
he came to her house and “got rid of them, discarded them.”
Stevens was later interviewed at the police station. She first
told the detective that Ash had been with her “24/7” from February
19 to February 21 and that she last saw him on February 21 in
Florida. The detective testified that he knew that the first statement
was untrue because he had records of a text message that made it
clear that Ash had been away from Stevens’ apartment on the night
of Shaw’s shooting. The detective further testified that when he
confronted Stevens with the text message, her demeanor changed
and she “changed her story” and said that Ash came to her
apartment between 3:30 and 4:00 a.m. the night of the shooting and
wanted to wash his clothes. She also told the detective that there
was conflict between Shaw and Ash over Jonathan and that the 4:00
a.m. text message from Ash said that “Mario Shaw was found dead.”
The detective later confronted Stevens about whether
February 21 was actually the last time she saw Ash. Stevens then
admitted that, after the trip to Florida, she flew home to Atlanta but
15
returned to Florida a few days later to retrieve $6,000 and see Ash. 14
The detective testified that, following his interview of Stevens,
Ash became the “prime suspect” for Shaw’s murder. 15 Ash later
agreed to be interviewed by the lead detective and another officer.
On April 5, 2013, after being read the Miranda warnings, 16 Ash said
that he was with Stevens for all of February 20 and 21. When
confronted with evidence that he had been away from Stevens
during that time, he admitted that he had gone to the 50 Yard Line
bar with Terrell around 7:00 p.m. on February 20 and stayed there
with him until about 1:00 a.m. on February 21. He said that he then
left to go home to wash his clothes and prepare for a trip to Florida.
Ash said that he first heard about Shaw’s death around 4:00 a.m.
from someone at the 50 Yard Line. He also told the detective he
14 At trial, Stevens testified that she flew back to Atlanta separately from
the rest of the group a few days after they arrived in Jacksonville. When Ash
returned to Atlanta, he was driving a rental car. According to Stevens, she
returned to Florida in March to pick up around $1,900 for Ash. She did not
elaborate as to where, why, or from whom she picked up the money.
15 The detective testified that Ash first became a suspect after the
detective’s initial interview with Denise.
16 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
16
returned to Stevens’s apartment around 4:00 a.m. When confronted
by the detective with the text message he sent to Stevens, Ash told
the detective that he was staying at a hotel that night but could not
remember the name of the hotel. He then told the detective that he
returned to Stevens’s apartment around 8:00 a.m. Ash denied ever
having a gun, stating that he was a felon and could not possess one.
Ash said that he and Shaw were “good friends” who “never had any
beef with each other.” Ash first denied that he and Shaw sold drugs
but later admitted that they were in the drug business.
The detective interviewed Terrell on April 8. He told the
detective that Ash sometimes carried a Ruger revolver. The
detective also testified that records showing the location of Terrell’s
phone throughout the evening of February 20 and the morning of
February 21 were consistent with Terrell’s statements about his
whereabouts. After the interviews, the detective obtained an arrest
warrant for Ash for Shaw’s murder.
At Ash’s trial, the State presented evidence of an altercation
between Ash and Hulit Colton in May 2008. Colton confronted Ash,
17
whom he had never met, after Ash tried to speak to Colton’s
girlfriend on the street. Ash was sitting in his car and then “just
started shooting” once Colton confronted him. Ash’s shots missed
Colton and other bystanders but damaged a nearby car. Ash then
drove away. The State introduced evidence that Ash pled guilty in
June 2009 to two counts of aggravated assault, a felony, arising from
this incident.
Ash elected not to testify. He called only one witness, a private
investigator who testified that, on a test drive around 3:00 p.m. on a
recent weekday afternoon, it took him approximately 20 minutes to
drive from Shaw’s apartment to the 50 Yard Line bar. On cross-
examination, the investigator stated that there was more traffic at
that time of day than there would be around 1:00 or 2:00 a.m.
2. Ash first argues that the trial court erred by admitting
evidence of his 2009 convictions as other acts pursuant to OCGA §
24-4-404 (b). Before trial, the State gave notice of its intention to
introduce evidence about the convictions and testimony from Colton
about the incident. The State argued that it wanted to introduce this
18
evidence for the purpose of showing Ash’s motive and intent with
respect to Shaw’s murder and the other charges in this case. The
State argued that the evidence demonstrated that “when [Ash] has
been wronged, he responds with violence.” Over Ash’s objection, the
trial court determined that the evidence could be admitted for the
purposes of showing motive and intent.
After Colton testified at trial, the trial court gave a limiting
instruction regarding his testimony. Although that charge indicated
that some evidence could be used only for limited purposes, the trial
court did not specify for what purposes Colton’s testimony or
evidence of Ash’s convictions could be used.17 In its final charge to
the jury before deliberations began, however, the trial court
instructed as follows:
In order to prove its case in the indictment, the State
must show intent. To do so, the State has offered evidence
of another act allegedly committed by the accused. You
are permitted to consider that evidence only insofar as it
may relate to those issues and not for any other purpose.
17 In the instruction, the trial court stated that “[s]ometimes evidence is
admitted for a limited purpose. Such evidence may be considered by the jury
for the sole issue or purpose against that party for which the evidence is limited
and not for any other purpose.”
19
You may not infer from such evidence that the defendant
is of a character that would commit such an act. The
evidence may be considered only to the extent that it may
show the elements that the State is required to prove in
the crimes charged in the case now on trial. Such
evidence, if any, may not be considered by you for any
other purpose. This defendant is on trial for the offenses
charged in this bill of indictment only and not for any
other act. Before you may consider any other alleged act
for the limited purposes stated, you must first determine
whether the accused committed the other alleged act. If
so, you must then determine whether the act sheds any
light on the elements of the offense for which the act was
admitted and the crimes charged in the indictment in this
trial. Remember to keep in mind the limited use and the
prohibited use of this evidence about another act of the
defendant. By giving this instruction, the court in no way
suggests to you that the defendant has or has not
committed any other act nor whether such act, if
committed, proves anything. This is solely a matter for
your determination.
In his motion for new trial, Ash again challenged the
admissibility of this evidence. The trial court again rejected Ash’s
argument, and its order denying Ash’s motion for new trial stated
that “the 2009 conviction is relevant to both motive and intent.”
Specifically, the trial court agreed with the State’s argument that
the other acts evidence was “relevant to showing Ash’s intent to
perpetuate violence by using a firearm when he feels he has been
20
wronged” and relevant for motive because the evidence “help[s]
demonstrate that Ash responds with violence, without reasonable
concern for the consequences, if he feels publicly disrespected.” Ash
contends that these evidentiary rulings were erroneous.
“On appeal, a trial court’s decision to admit evidence pursuant
to OCGA § 24-4-404 (b) is reviewed for a clear abuse of discretion.”
Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016).
Under OCGA § 24-4-404 (b), ‘[e]vidence of other crimes,
wrongs, or acts shall not be admissible to prove the
character of a person in order to show action in conformity
therewith,’ but such evidence is admissible for other
purposes, including to prove intent and motive.
Kirby v. State, 304 Ga. 472, 479 (4) (819 SE2d 468) (2018). However,
“[d]espite its inclusive nature, Rule 404 (b) prohibits the admission
of such evidence when it is offered solely for the impermissible
purpose of showing a defendant’s bad character or propensity to
commit a crime.” (Citation omitted; emphasis in original.) Thompson
v. State, 302 Ga. 533, 539 (III) (807 SE2d 899) (2017).
Although the characterizations of the relevance of this
evidence offered by the State and the trial court strongly suggest it
21
was intended to demonstrate Ash’s propensity for violence, see
Kirby, 304 Ga. at 487 (4) (b) (noting that evidence of a defendant’s
“inclination” toward violence “is a classic improper propensity
argument”), we need not decide whether the trial court abused its
discretion by admitting this evidence, because any such error was
harmless. The test for determining whether a nonconstitutional
evidentiary error was harmless is whether it is highly probable that
the error did not contribute to the verdict. See Jackson v. State, 306
Ga. 69, 80 (2) (c) (829 SE2d 142) (2019). In conducting this harmless-
error review, “we review the record de novo and weigh the evidence
as we would expect reasonable jurors to have done so.” (Citation
omitted.) Id.We first note that the trial court’s instructions to the jury
indicated that the only specific purpose for which the evidence of the
2009 incident and convictions could be considered was to show
intent. Thus, as Ash concedes, although the trial court ruled on
multiple occasions that the evidence was also admissible to show
motive, the jury was never instructed as to that use of the evidence,
22
and the jury is presumed to follow the instructions of the trial court
absent clear evidence to the contrary. See Horton v. State, 310 Ga.
310, 320 (3) (a) (849 SE2d 382) (2020). Ash has presented no
evidence that the jury deviated from the trial court’s instructions
and considered this evidence in regard to motive. Thus, to the extent
the trial court’s determination that the evidence was admissible as
to the issue of motive constituted an abuse of discretion, any such
error was harmless.
Any error in admitting the evidence for the purpose of showing
intent was likewise harmless. The record reflects that the 2009
convictions served as the predicate felonies for the count of
possession of a firearm by a convicted felon with which Ash was
charged. Also, in his interview with the detective, which was played
for the jury, Ash admitted to being a convicted felon. Thus, Ash’s
prior convictions and the nature of the charges were properly before
the jury for other reasons, leaving only Colton’s description of those
events as additional evidence for the jury to consider. And Colton’s
description of those events was not of a character that would lead a
23
reasonable juror to seek to “punish” Ash in this case again for the
actions described related to the prior case. Kirby, 304 Ga. at 485 (4)
(a) (i). Finally, we note that neither the prosecutor nor Ash’s counsel
devoted much attention to this evidence in closing arguments.
Under these circumstances, the evidence of the 2009 incident
and convictions “was not unduly prejudicial, particularly in light of
the trial court’s instructions limiting the jury’s consideration of the
evidence to a matter that turned out to be of no importance and the
fact that the jury learned that [Ash] had pled guilty to his prior
crimes[.]” Tiraboschi v. State, __ Ga. __ (862 SE2d 276, 278 (2))
(2021); see also Howell v. State, 307 Ga. 865, 875 (838 SE2d 839)
(2020) (considering the trial court’s instructions on the limited use
of other-act evidence in determining harmless error, because “[w]e
ordinarily presume that jurors follow their instructions”); Kirby, 304
Ga. at 485 (4) (a) (i) (explaining that the risk that a jury may convict
a defendant not for the offense charged but for his extrinsic conduct
is greater where the extrinsic conduct was not already the subject of
a conviction).
24
Rather, the central issue in the case was whether it was Ash
who shot and killed Shaw. On that issue, the evidence against Ash
was strong. Minor testified at trial that Ash told him he shot and
killed Shaw, and Minor’s testimony was corroborated by physical
evidence and statements by other witnesses.
Further, the State introduced the testimony of multiple
witnesses regarding Ash’s anger towards Shaw and his suspicions
that Shaw was responsible for stealing Jonathan’s drugs. In the
days leading up the murder, witnesses observed several
confrontations between Ash and Shaw, including at least one visit
where Shaw refused Ash entry to his apartment. Denise Gowdy’s
testimony about Shaw’s refusal to let Ash enter also helped to
explain why, as Minor testified, Ash would need to “finesse” his way
into Shaw’s apartment on the night of the shooting.
In addition, Cook’s testimony placed Ash and a white SUV at
the scene of the shooting around the time it occurred. Although his
statements were confusing and contradictory and his credibility was
aggressively questioned at trial, at least one of the descriptions of
25
the person he identified as “Big Boy” led a detective to conclude that
he had identified Ash. Moreover, although Stevens offered a benign
explanation for washing Ash’s clothes on the night of the shooting,
there was also evidence suggesting that Stevens destroyed the
clothes Ash had been wearing that night. In his interview with the
police, Ash gave inconsistent stories about his movements and
whereabouts on the evening of the shooting.
Given this evidence, it is highly probable that any error in
admitting the other-acts evidence for the jury to consider in regard
to intent did not contribute to the verdicts. See Jackson, 306 Ga. at
81 (2) (concluding that the erroneous admission of evidence of a prior
shooting did not contribute to the jury’s verdict “given the overall
strength of the other evidence” of guilt); see also Keller v. State, 308
Ga. 492, 503 (5) (842 SE2d 22 (2020) (determining that evidentiary
error was harmless “in light of the strong evidence of [appellant’s]
guilt”). Thus, this enumeration of error fails.
3. Ash also contends that the trial court improperly admitted
hearsay testimony from Terrell concerning statements Shaw made
26
to him. Before trial, the State filed a notice of intent to introduce
hearsay evidence pursuant to OCGA § 24-8-807 (“Rule 807”), which
is also known as the “residual” hearsay exception.18 Specifically, the
State sought to admit testimony about Shaw’s statements to Terrell
that Jonathan and Shaw were both arrested for marijuana and cash
found in Jonathan’s car, that Ash told Shaw that Shaw “needed to
own up” for the marijuana found when he and Jonathan were
arrested, that Shaw was not going to claim the drugs were his “right
then,” and that Shaw was “going to wait and see.”
Over Ash’s objection, the trial court permitted the State to
question Terrell about Shaw’s statements to him under the residual
hearsay exception, determining that, under the totality of the
circumstances, there were particularized guarantees of the
18OCGA § 24-8-807 provides, in relevant part:
A statement not specifically covered by any law but having
equivalent circumstantial guarantees of trustworthiness shall not
be excluded by the hearsay rule, if the court determines that: (1)
The statement is offered as evidence of a material fact; (2) The
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through
reasonable efforts; and (3) The general purposes of the rules of
evidence and the interests of justice will best be served by
admission of the statement into evidence. . . .
27
statements’ trustworthiness, Shaw was clearly unavailable to testify
at trial due to his death, and the statements were relevant to a
material fact in the case. On appeal, Ash claims that the trial court
abused its discretion by admitting Shaw’s statements to Terrell
under the residual hearsay exception. We disagree.
(a) In ruling upon Ash’s residual hearsay claim in his motion
for new trial, the trial court referred to this Court’s decision in
Griffin v. State, 280 Ga. 683, 684 (631 SE2d 671) (2006), which the
trial court noted applied the “necessity” exception to the hearsay
rule set forth in former OCGA § 24-3-1 (b). However, the General
Assembly did not carry over that exception to the hearsay rule into
the current Evidence Code. While eliminating the “necessity”
exception, the General Assembly modeled the current version of
Rule 807 — which took effect on January 1, 2013, and applies to all
trials conducted after that date, including the trial in this case — on
Federal Rule of Evidence 807. See State v. Holmes, 304 Ga. 524, 529
(2) (a) (820 SE2d 26) (2018).
As we have noted many times since the current Evidence
28
Code’s enactment, when Georgia courts consider the meaning of
Evidence Code provisions that the General Assembly borrowed from
the Federal Rules of Evidence, they should be guided by the
“decisions of the federal appeals courts construing and applying the
Federal Rules, especially the decisions of the Eleventh Circuit.”
(Citation and punctuation omitted.) Jacobs v. State, 303 Ga. 245,
249 (2) (811 SE2d 372) (2018). Cases decided under the “necessity”
exception to the hearsay rule in Georgia’s former Evidence Code are
thus not applicable to Rule 807’s interpretation and should not be
relied on by trial courts in determining whether to admit evidence.
See Holmes, 304 Ga. at 530 (2) (a).
However, despite its citation to Griffin, the trial court’s order
denying Ash’s motion for new trial on this ground relied primarily
on its assessment of “guarantees of trustworthiness” and the other
factors outlined in Rule 807. We also note that in their arguments
before the trial court in the pre-trial hearing on this issue both Ash
and the State discussed the need to establish guaranties of
trustworthiness surrounding Shaw’s statements to Terrell.
29
The trial court ultimately applied the appropriate evidentiary
standard despite its citation of a case construing the former
Evidence Code. It is therefore unnecessary for us to vacate the trial
court’s denial of Ash’s motion for new trial on the sole basis that the
trial court considered a decision under the former Evidence Code
instead of relying on decisions construing Rule 807 under the
current Evidence Code. See Reyes v. State, 309 Ga. 660, 667 (2) (a)
(847 SE2d 194) (2020) (holding that even though the trial court cited
cases construing the former Evidence Code, because the trial court
applied the residual factors, in substance, remand was
unnecessary). Compare Holmes, 304 Ga. at 530 (2) (a) (where trial
court did not apply the proper evidentiary standard in analyzing
evidence’s admissibility under Rule 807, this Court vacated the
order, remanded the case, and directed the trial court to apply the
correct standard).
(b) We now consider whether the trial court abused its
discretion by admitting the statements at issue under Rule 807. See
Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019) (admission
30
of evidence under Rule 807 reviewed for abuse of discretion). The
exception states in relevant part:
A statement not specifically covered by any law but
having equivalent circumstantial guarantees of
trustworthiness shall not be excluded by the hearsay rule,
if the court determines that: (1) The statement is offered
as evidence of a material fact; (2) The statement is more
probative on the point for which it is offered than any
other evidence which the proponent can procure through
reasonable efforts; and (3) The general purposes of the
rules of evidence and the interests of justice will best be
served by admission of the statement into evidence[.]
OCGA § 24-8-807.
Ash does not dispute that the State offered the statements at
issue as evidence of material facts, that the statements were more
probative on the points for which the State offered them than any
other evidence the State could have reasonably procured, or that the
statements’ admission would best serve the general purpose of the
evidence rules and the interests of justice. Instead, Ash contends
only that the statements did not have sufficient “guarantees of
trustworthiness” to be properly admitted under the residual hearsay
exception. We disagree.
31
We first note that the General Assembly designed the residual
hearsay exception embodied in Rule 807 “‘to be used very rarely, and
only in exceptional circumstances.’” Jacobs, 303 Ga. at 249 (2)
(quoting Rivers v. United States, 777 F3d 1306, 1312 (II) (11th Cir.
2015)). The rule applies “only when certain exceptional guarantees
of trustworthiness exist and when high degrees of probativeness and
necessity are present.” Jacobs, 303 Ga. at 249 (2). Such guarantees
of trustworthiness
must be equivalent to cross-examined former testimony,
statements under a belief of impending death, statements
against interest, and statements of personal or family
history. These categories of hearsay have attributes of
trustworthiness not possessed by the general run of
hearsay statements that tip the balance in favor of
introducing the information if the declarant is
unavailable to testify. And they are all considered
sufficiently trustworthy not because of the credibility of
the witness reporting them in court, but because of the
circumstances under which they were originally made.
(Citations and punctuation omitted.) Id. However,
[t]his Court is particularly hesitant to overturn a trial
court’s admissibility ruling under the residual hearsay
exception absent a definite and firm conviction that the
court made a clear error of judgment in the conclusion it
reached based upon a weighing of the relevant factors.
32
(Citation and punctuation omitted.) Holmes, 304 Ga. at 529 (2) (a).
Here, the trial court determined that several factors weighed
in favor of finding that Shaw’s statements to Terrell were
trustworthy. The trial court noted that Terrell testified in a pre-trial
hearing regarding the residual hearsay testimony.19 Terrell testified
that Shaw was his lifelong friend “ever since elementary school.”
Terrell and Shaw met in the third grade, and they were friends until
Shaw’s death. The pair talked to each other daily and shared the
personal details of their lives with each other. Terrell described
Shaw as his “best friend” that he “loved and trusted.” Terrell and
Shaw continued this close relationship until Shaw’s death.
In light of the evidence of their long and close friendship and
the circumstances in which Shaw made the statements at issue to
Terrell, we cannot say that the trial court abused its discretion by
admitting the statements under Rule 807. See, e.g., Rawls v. State,
19 The trial court initially determined that Shaw’s statements would not
be admitted pursuant to Rule 807. Before the start of Ash’s second trial, the
trial court reversed that decision following a hearing on a pre-trial motion for
reconsideration filed by the State.
33
310 Ga. 209, 215 (3) (i) (850 SE2d 90) (2020) (noting that the “close
relationship” between victim and witness gave statements made to
witness by victim “sufficient guarantees of trustworthiness to be
admissible under Rule 807”); Jacobs, 303 Ga. at 250-251 (2) (no
abuse of discretion where statements made to close friends
concerned history of conflict between victim and perpetrator).
Moreover, although Terrell, like many of the witnesses who
testified at trial, had his credibility and motives for testifying
questioned by the defense, his credibility was not at issue in
determining whether to admit Shaw’s statements to him under Rule
807. As we discussed in Jacobs, the trial court must make its
determination of the trustworthiness of the hearsay statements at
issue “not because of the credibility of the witness reporting them in
court, but because of the circumstances under which they were
originally made.” (Citations and punctuation omitted.) 303 Ga. at
249 (2). Because the record is clear that this was the trial court’s
focus in reaching its ruling with regard to the admission of the
statements and because the trial court’s decision to admit this
34
evidence did not otherwise constitute an abuse of discretion, this
enumeration of error fails. See Reyes, 309 Ga. at 673-674 (3) (b).
4. Ash also claims that his right to due process was violated
when the State “improperly destroyed evidence it knew to be
exculpatory.” Specifically, Ash claims that during his interview with
the police on April 5, 2013, he showed the lead detective a picture on
his cell phone showing that he was at the Brazilian Club on the night
of Shaw’s shooting. Ash further claims that after confiscating the
cell phone incident to his arrest, the State, in bad faith, destroyed
the phone, even though it contained exculpatory evidence, namely
the photograph Ash showed the detective. The trial court
determined that Ash had not demonstrated a due process violation,
and we agree.
In evaluating whether a defendant’s constitutional right to due
process was violated when the State failed to preserve evidence that
could be exculpatory,
a court must determine both whether the evidence was
material and whether the police acted in bad faith in
failing to preserve the evidence. To meet the standard of
35
constitutional materiality, the evidence must possess an
exculpatory value that was apparent before it was
destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other
reasonably available means.
(Citations and punctuation omitted.) Goins v. State, 310 Ga. 199,
202 (3) (850 SE2d 68) (2020); see also State v. Mussman, 289 Ga.
586, 590 (2) (713 SE2d 822) (2011) (applying this test where the
State failed to preserve evidence that “could have been exculpatory,
but where it is not known that the evidence would have been
exculpatory” (emphasis omitted)). This test is ordinarily applied
when State officials dispose of potential evidence that was
previously in the State’s actual or constructive possession. See, e.g.,
Arizona v. Youngblood, 488 U. S. 51, 52-53 (109 SCt 333, 102 LE2d
281) (1988) (sexual assault kit not fully tested and victim’s clothing
not refrigerated); California v. Trombetta, 467 U. S. 479, 482 (104
SCt 2528, 81 LE2d 413) (1984) (suspected drunk drivers’ breath
samples not preserved by arresting officers); Hill v. State, 308 Ga.
638, 648-649 (842 SE2d 853) (2020) (correctional officer’s video of
post-crime search lost); Clay v. State, 290 Ga. 822, 839-843 (5) (725
36
SE2d 260) (2012) (defendant’s blood samples destroyed). Cf. Krause
v. State, 286 Ga. 745, 752 (691 SE2d 211) (2010) (applying the test
to a baseball bat seen in a crime scene photograph but not taken into
evidence).
In his motion for new trial, Ash claimed that the State violated
his due process rights by improperly and in bad faith destroying his
cell phone, which the State allegedly knew contained exculpatory
evidence before its destruction. The record shows that during the
investigation of Shaw’s murder, the lead detective interviewed Ash
on April 5, 2013. Among other stories about the night of Shaw’s
shooting, Ash told the detective that he had an alibi in the form of a
photograph taken at the Brazilian Club that night. Ash then showed
the detective a photograph he “had received” which he said was
taken at the club that night. In response, the detective challenged
Ash to provide information about his whereabouts between 2:00 a.m.
and 7:00 a.m. on February 21.
After his interview with the detective, Ash was arrested.
Incident to the arrest, the detective collected Ash’s cell phone.
37
Pursuant to Atlanta Police Department procedures, the detective
generated a bar code for the phone on April 5, but he did not turn
the phone over to the department’s property control unit until July
22, 2013, in apparent violation of police department guidelines.
During that time, the detective asked Ash’s cell phone service
provider to unlock his phone. A representative of the service
provider indicated that it would only do so after being presented
with a valid search warrant. The detective later obtained a search
warrant for the phone but never filed a return. 20
In addition, when the detective later turned the phone over to
the department’s property control unit, he designated the phone as
“property” rather than “evidence.” Under police department
guidelines, “property” was to be retained by the police department
for at least 90 days before being destroyed, based on the date listed
20 An employee of the Clerk of Fulton County Superior Court testified
that, “[n]ormally, when the affidavits and applications for a search warrant
are filed with our court, they are filed with a return attached. And this record
has no return attached.” The record contains a form Fulton County Superior
Court “return,” which is a document that shows, among other information,
whether and where the warrant was executed, with whom or where a copy of
the warrant was left, and an inventory of any items seized in any search that
was conducted pursuant to the warrant.
38
with the bar code, and police personnel were to, “if possible,” contact
the property owner and notify him that the property could be picked
up at the property control unit. In early August 2013, the police
department sought court permission pursuant to OCGA § 17-5-54
(e)21 to destroy Ash’s cell phone, and a court order granting such
permission was issued on August 20. Ash’s cell phone was destroyed
sometime in early October 2013.22 A notation on the document
showing the chain of custody of the phone indicates that the phone
was destroyed before the police notified Ash that the phone could be
picked up.
21 OCGA § 17-5-54 (e) provides, in pertinent part, as follows:
For any unclaimed personal property that is not a firearm, the
sheriff, chief of police, or other executive officer of a law
enforcement agency shall make application to the superior court
for an order to retain, sell, or discard such property. In the
application the officer shall state each item of personal property to
be retained, sold, or discarded. . . . Upon the superior court's
granting an order which authorizes that the property be discarded,
the law enforcement agency shall dispose of the property as other
salvage or nonserviceable equipment. . . .
22 Ash’s counsel noted in the hearing on the motion for new trial that the
police department’s procedures required the department to make efforts to
notify Ash before destroying the phone but that he was never notified. Ash
concedes that, before its destruction, he never asked that the phone be
returned to him or that he be allowed to examine it.
39
Three witnesses who were in the chain of custody of the phone
testified that they had not examined the contents of the phone and
did not know whether the phone contained exculpatory evidence.
The detective did not testify at the hearing on the motion for new
trial.
At the hearing, Ash presented the testimony of an expert who
stated that it would have been possible to extract “metadata”
relating to the photograph, including GPS coordinates, the date and
time the photo was captured, and the date and time the photo was
digitized, from Ash’s phone. The expert testified that access to this
data would “greatly” improve the ability to determine the precise
location of Ash’s cell phone at various times. Ash’s mother also
testified at the hearing that she picked up some of Ash’s personal
property from the Fulton County Jail on May 23, 2016, and that she
would have picked up his cell phone from the jail had she been asked
to do so.
In its order denying Ash’s motion for new trial, the trial court
rejected Ash’s claim, finding in part that, “[n]o testimony given by
40
any witness over the two days of hearings on the amended motion
for new trial demonstrated bad faith by anyone.” The trial court also
noted that the photograph had been taken by someone else and was
consistent with the State’s theory of Ash’s whereabouts the night of
the shooting, including his presence at the Brazilian Club where Ash
claimed the photo was taken. The trial court thus determined that
the photograph was “not exculpatory, but rather inculpatory.”
To begin with, we agree with the trial court that Ash has not
shown that the photograph’s exculpatory value, if any, was apparent
before it was destroyed. See Ballard v. State, 285 Ga. 15, 16 (2) (673
SE2d 213) (2009). That a piece of evidence may be “potentially
useful” in a defendant’s attempt at exoneration is insufficient to
sustain a claim that the defendant has suffered an abridgment of
due process due to the evidence’s destruction or loss. Krause, 286 Ga.
at 752 (8). The key is the evidence’s “apparent exculpatory value”
before its destruction or loss, and this Court has defined “apparent”
in this context as “readily seen; visible; readily understood or
perceived; evident; obvious.” State v. Mitzell, 288 Ga. 474, 476 (2)
41
(705 SE2d 154) (2011).
Although Ash argues that the exculpatory value of the picture
he showed the detective was readily apparent and that the
detective’s actions in seeking to unlock the phone and obtain a
search warrant for it demonstrate as much, we are not persuaded
that Ash has demonstrated that this evidence satisfies the
exculpatory prong of the materiality test. Based on the record before
this Court, we cannot conclude that the cell phone’s exculpatory
value was obvious or evident to the detective or any other police
personnel who handled the phone before its destruction. See State v.
Miller, 287 Ga. 748, 755 (699 SE2d 316) (2010) (evidence on seized
cell phone was not constitutionally material where “it was [not]
apparent to police or anyone else involved in the seizure, custody, or
disposition of the cell phone that it could possibly aid [the defendant]
in the defense of any criminal charges”).
To the contrary, the evidence presented at the hearing on the
motion for new trial suggests that the detective never believed the
photograph to be exculpatory and that other police personnel never
42
examined the phone to determine whether it contained exculpatory
evidence. Consequently, the trial court did not err in determining
that the exculpatory value of the evidence was not apparent. See
Hill, 308 Ga. at 649 (3) (holding that, even if an unpreserved video
would have shown what the appellant claims it would have shown,
it was not material because its exculpatory value was not apparent
before it was lost); Clay, 290 Ga. at 842 (5) (c) (rejecting claim of due
process violation based on destruction of evidence and noting that
appellant “overstate[d] the potential exculpatory value of the
destroyed evidence”).
We also agree with the trial court’s determination that the
police did not act in bad faith. As the United States Supreme Court
discussed in Youngblood,
requiring a defendant to show bad faith on the part of the
police both limits the extent of the police’s obligation to
preserve evidence to reasonable bounds and confines it to
that class of cases where the interests of justice most
clearly require it, i.e., those cases in which the police
themselves by their conduct indicate that the evidence
could form a basis for exonerating the defendant.
488 U. S. at 58. Here, as the trial court found, there was no evidence
43
that any member of the police department who handled Ash’s cell
phone after it was confiscated believed there was exculpatory
evidence on the phone. Only the detective was aware that Ash even
claimed to have potentially exculpatory evidence on the phone.
Ash makes much of the evidence that the detective and other
members of the police department appear to have violated a number
of Atlanta Police Department policies in the handling and
disposition of the phone, particularly the detective’s lengthy delay
in turning the phone over to the property control unit, his
“mislabeling” of the phone as “property” rather than “evidence,” and
the destruction of the phone before notifying Ash that it could be
picked up. However,
[e]ven if we were to assume that the State’s handling of
the [phone] indicated careless, shoddy and unprofessional
investigatory procedures, it did not indicate that the
police in bad faith attempted to deny [Ash] access to
evidence that they knew would be exculpatory.
(Citation omitted.) Hill, 308 Ga. at 649 (3). Ash presented no
evidence that the detective’s actions or the police department’s
eventual destruction of the cell phone were motivated by a conscious
44
desire to deny Ash the use of the photograph or other evidence
connected with the phone, including metadata associated with the
photograph, or that anyone in the chain of custody was even aware
that the phone contained allegedly exculpatory evidence. Instead,
the police department’s actions are best characterized “as an
unfortunate series of mishandlings, mistakes, and negligence.”
Miller, 287 Ga. at 755. Such actions cannot support a claim that
Ash’s right to due process was violated, and this claim fails.
5. Ash next argues that the trial court plainly erred by failing
to charge the jury on the “full defendant’s confession corroboration”
instruction and by failing to instruct the jury that the testimony of
an accomplice must be corroborated. We reject both contentions.
(a) Ash first contends that the trial court erred in the
instruction on confession corroboration when it omitted one sentence
from the current pattern instruction. Because Ash’s trial counsel did
not request the jury instruction on confession corroboration and did
not object to the jury charge as given by the trial court, we review
this omission only for plain error. See OCGA § 17-8-58 (b) (“Failure
45
to object in accordance with subsection (a) of this Code section shall
preclude appellate review of such portion of the jury charge, unless
such portion of the jury charge constitutes plain error which affects
substantial rights of the parties. Such plain error may be considered
on appeal even if it was not brought to the court’s attention as
provided in subsection (a) of this Code section.”).
This Court has established the following test for plain error:
First, there must be an error or defect — some sort of
deviation from a legal rule — that has not been
intentionally relinquished or abandoned, i.e.,
affirmatively waived, by the appellant. Second, the legal
error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary
case means he must demonstrate that it affected the
outcome of the trial court proceedings. Fourth and finally,
if the above three prongs are satisfied, the appellate court
has the discretion to remedy the error — discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.
(Citations and punctuation omitted.) Simmons v. State, 299 Ga. 370,
373 (2) (788 SE2d 494) (2016). This Court does not have to analyze
all elements of the plain-error test where an appellant fails to
46
establish one of them. See State v. Herrera-Bustamante, 304 Ga.
459, 464 (2) (b) (818 SE2d 552) (2018). As we have noted, satisfying
all four prongs of this test “is difficult, as it should be.” (Citation
omitted.) Clarke v. State, 308 Ga. 630, 637 (5) (842 SE2d 863) (2020).
In this case, the trial court instructed the jury to
consider with great care and caution the evidence of any
out-of-court statement allegedly made by the defendant
offered by the State. The jury may believe any such
statement in whole or in part, believing that which you
will find to be true and rejecting that which you find to be
untrue. You alone have the duty to apply the general rules
for testing the believability of witnesses and to decide
what weight should be given to all or any part of such
evidence.
The trial court omitted the following statements from the pattern
jury instruction:
A defendant’s out-of-court statement that is not
supported by any other evidence is not sufficient to justify
a conviction, even if you believe that unsupported
statement. However, proof by other evidence beyond a
reasonable doubt that the crime alleged has been
committed may constitute supporting evidence of a
defendant’s statement, if any, should you so find. The law
does not fix the amount of supporting evidence necessary.
You must determine whether or not other evidence
sufficiently supports a defendant’s statement so as to
justify a conviction. If you find that there was a statement
47
made by the defendant that was supported by other
evidence, the degree of proof necessary to convict is that
you be satisfied of the guilt of the defendant beyond any
reasonable doubt.
See Georgia Suggested Pattern Jury Instructions, Vol. II, § 1.32.70
(Jan. 2016); see also OCGA § 24-8-823 (“All admissions shall be
scanned with care, and confessions of guilt shall be received with
great caution. A confession alone, uncorroborated by any other
evidence, shall not justify a conviction.”). 23 Ash argues that the
omission of the first sentence of this portion of the pattern jury
instruction constituted plain error.
However, despite this omission from the pattern instruction,
we cannot say that the trial court’s charge constituted a legal error
that was “clear or obvious, rather than subject to reasonable
dispute.” Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366)
(2012). We have previously held that there was no plain error where
the trial court failed to give the full text of a different pattern
instruction on consideration of the voluntariness of the defendant’s
23 The exact text of former OCGA § 24-3-53 was carried forward into the
current Evidence Code and codified as OCGA § 24-8-823.
48
statements in its charge to the jury where, as here, the charge, as
given, “instructed the jury to apply the general rules for testing the
believability of witnesses and for deciding what weight, if any, to
give to all or any part of a statement.” Martin v. State, 306 Ga. 538,
544 (4) (832 SE2d 402) (2019).
And although the trial court’s failure to charge the jury
regarding the need to corroborate a defendant’s out-of-court
statement has been raised as plain error in prior appeals before this
Court, it does not appear that we have squarely addressed whether
the failure to instruct the jury that an uncorroborated statement is
insufficient to warrant a conviction is clearly and obviously
erroneous. See, e.g., Hood v. State, __ Ga. __ (860 SE2d 432, 442 (2))
(2021) (pretermitting whether the failure to give the instruction
constituted clear and obvious error and determining that the
outcome was not likely affected by the omission of the instruction);
Horton v. State, 310 Ga. 310, 322 (3) (b) (849 SE2d 382) (2020)
(same); Clarke, 308 Ga. at 637 (5) (same); English v. State, 300 Ga.
471, 473-475 (2) (796 SE2d 258) (2017) (same); Rashid v. State, 292
49
Ga. 414, 422 (7) (737 SE2d 692) (2013) (same).24 Additionally, the
Court of Appeals has held that, absent a timely request for a similar
form of this instruction under the identical language of former
OCGA § 24-3-53, there is no error so long as there was evidence
presented at trial corroborating the defendant’s statement. See
Herrington v. State, 243 Ga. App. 265, 266-267 (3) (533 SE2d 133)
(2000).25
24 Although it did not appear to explicitly consider the issue under the
plain-error framework, the Court of Appeals reached a similar conclusion in
Armstrong v. State, 325 Ga. App. 33, 36-37 (2) (752 SE2d 120) (2013), and
Farley v. State, 314 Ga. App. 660, 666-667 (5) (725 SE2d 794) (2012), when it
held in each case that there was no reversible error in failing to sua sponte
instruct the jury regarding corroboration of a confession where the defendant
did not request the instruction and his statement was corroborated by other
evidence.
25 We recognize that this holding is in tension with our current approach
to assessing whether the trial court erred by not giving certain instructions to
the jury based on the text of statutes requiring corroboration. Tellingly,
Herrington cites Fleming v. State, 269 Ga. 245, 247 (2) (497 SE2d 211) (1998),
in support of the proposition that no corroboration instruction need be given
where there is sufficient corroborating evidence. Fleming dealt with whether
the trial court was required to give an accomplice-corroboration instruction
requested by the defendant. See id. at 247 (2); former OCGA § 24-4-8. We held
in Fleming that no instruction was required because the State presented
evidence corroborating the alleged accomplice’s testimony. See id. However, in
Hamm v. State, 294 Ga. 791, 796 (2) (756 SE2d 507) (2014), we overruled
Fleming and other decisions from this Court and the Court of Appeals applying
that rule, reasoning instead that the failure to give the accomplice-
corroboration instruction is error when there is at least slight evidence that a
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The trial court did not commit a clear and obvious error here
because “[a]n 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[.]” Wilson v. State, 291 Ga. 458, 460 (729 SE2d 364) (2012)
(holding that it was not plain error to fail to give jury instruction
even where appellant’s argument establishing error “may be
meritorious”). Because Ash has pointed to no precedent holding that
the omission of this sentence from the pattern instruction
constitutes error under these circumstances, and because existing
legal authority stands for the contrary position, whether the trial
court should have instructed the jury on the full text of the pattern
witness was an accomplice. We have since applied this rule in the plain-error
context, holding that it is clear and obvious error for a trial court to fail to give
the accomplice-corroboration instruction sua sponte when there is evidence
that a witness was an accomplice. See, e.g., Stanbury v. State, 299 Ga. 125,
129-130 (2) (786 SE2d 672) (2016). Herrington thus appears to deviate from
this Court’s more recent decisions emphasizing the need for a jury instruction
on corroboration where a statutory provision indicates that corroboration is
required and there is slight evidence to support the instruction.
However, even if Herrington is no longer good law — a question we need
not definitively resolve today — for purposes of this case, it is sufficient that it
has not been overruled. Herrington shows that, under existing precedent, the
trial court did not clearly and obviously err in failing to instruct the jury that
a defendant’s out-of-court statement that is not supported by any other
evidence is not sufficient to justify a conviction.
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confession-corroboration instruction must be considered “subject to
reasonable dispute and thus cannot constitute plain error.” (Citation
and punctuation omitted.) Id. See also Walter v. State, 304 Ga. 760,
767 (3) (b) (822 SE2d 266) (2018) (noting that appellant had “cite[d]
no precedent” requiring the instruction at issue).
(b) Ash also claims that the trial court plainly erred by failing
to charge the jury on the need for corroboration of accomplice
testimony, as a jury could have found that Terrell and Minor were
accomplices to Shaw’s murder. We disagree.
The trial court instructed the jury on this issue as follows:
The testimony of a single witness, if believed, is sufficient
to establish a fact. Generally, there is no legal
requirement of a corroboration of a witness, provided you
find the evidence to be sufficient.
Ash did not request an accomplice-corroboration charge, and the
trial court did not instruct the jury that there must be independent
corroboration of an accomplice’s testimony before it can be
considered. After the trial court concluded the jury charges, Ash’s
counsel stated that she had no objections to the charges as given. We
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thus review this claim only for plain error. See OCGA § 17-8-58 (b).
OCGA § 24-14-8 provides, in relevant part, that “[t]he
testimony of a single witness is generally sufficient to establish a
fact. However, in . . . felony cases were the only witness is an
accomplice, the testimony of a single witness shall not be sufficient.”
Under this rule, the Court has stated that
where an accomplice testifies at trial, a jury may not rely
solely on the testimony to find any fact necessary to
sustain the defendant’s felony conviction. Instead, the
existence of any such fact must also be supported by
either the testimony of an additional witness or by other,
independent evidence that corroborates the accomplice’s
testimony.
State v. Johnson, 305 Ga. 237, 240 (824 SE2d 317) (2019).
In considering whether a witness is an accomplice, we
look to the definition of party to a crime found in OCGA §
16-2-20. Under that definition, there must be some
evidence showing that the defendant shared a common
criminal intent to commit the crimes in question with the
actual perpetrators. Moreover, evidence of an individual’s
actions and knowledge after the commission of the crimes
is insufficient to satisfy the standard of OCGA § 16-2-20.
At best, it would show that the individual was an
accessory after the fact, not a party to the crimes. At
common law and under modern practice, an accessory
after the fact is not considered an accomplice to the
underlying crime itself, but is guilty of a separate,
53
substantive offense in the nature of obstruction of justice.
(Citation, punctuation, and emphasis omitted.) Horton, 310 Ga. at
323 (3) (c).
Here, based on the standard outlined above, there was no
evidence presented at trial that obviously called for the giving of an
accomplice-corroboration charge. Although Ash notes that both
Terrell and Minor believed Shaw should have taken responsibility
for Jonathan Ash’s drug charges, Ash has pointed to no evidence
that Minor or Terrell shared Ash’s intent to murder Shaw or that
they aided or abetted the killing in any way. Ash also notes that
Cook’s testimony established that there was someone with Ash at
Shaw’s apartment complex around the time Shaw was killed.
However, there was no evidence presented at trial that this person
was either Terrell or Minor. By contrast, the evidence indicates only
that Terrell and Minor heard about Shaw’s killing later. Moreover,
although Terrell was with Ash on the night of the shooting and
traveled to Florida with him the following day, neither the evidence
presented at trial nor the State’s closing argument pointed to Terrell
54
as an accomplice. Rather, the State suggested that Ash contacted
Terrell and asked to meet him merely as a way of establishing an
alibi the night of the shooting.
Thus, while there might have been a slight evidentiary basis
for Ash to have requested a charge on accomplice corroboration, Ash
has failed to show that the trial court made a clear and obvious error
by not sua sponte instructing the jury on accomplice corroboration.
See Horton, 310 Ga. at 325 (3). This enumeration of error fails.
6. Finally, Ash argues that the cumulative effect of the errors
he has enumerated prejudiced him and that he is entitled to a new
trial. To establish cumulative error, Ash must show that “at least
two errors were committed in the course of the trial; [and]
considered together along with the entire record, the multiple errors
so infected the jury’s deliberation that they denied [Ash] a
fundamentally fair trial.” State v. Lane, 308 Ga. 10, 21 (4) (838 SE2d
808) (2020). However, when reviewing a claim of cumulative
prejudice, “we evaluate only the effects of matters determined to be
error rather than the cumulative effect of non-errors.” Scott v. State,
55
309 Ga. 764, 771 (3) (d) (848 SE2d 448) (2020).
This Court has assumed for purposes of analysis that the trial
court made only a single error in this case: the trial court’s
admission of Ash’s 2009 convictions and testimony about the
incident that led to those convictions. However, because we
determined that any error in the admission of that evidence was
harmless, and because we have not identified any other error on the
part of the trial court, we have no basis for evaluating cumulative
effect. See Flood v. State, ___ Ga. ___ (860 SE2d 731, 739 (2) (d))
(2021). This argument fails.
Judgment affirmed. All the Justices concur.
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