Ash v. State

865 S.E.2d 150, 312 Ga. 771

• Court: Supreme Court of Georgia
• Decided: November 2, 2021
• Docket: S21A0771
• Status: Published

Opinion

312 Ga. 771 FINAL COPY

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)

(“Rule 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

1 The crimes occurred on February 21, 2013. On June 28, 2013, a Fulton

County grand jury returned an indictment against Ash charging him with 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 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.

In December 2012, Jonathan was driving his SUV with Shaw

(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 8, 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.” Taylor v. State, 306 Ga. 277, 283 (2) (830 SE2d 90) (2019).

2 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

retrieved what he thought were all of the illegal drugs in the house

3 A police officer testified that no “hold” was placed on the vehicle after

it was impounded. 3 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

sell.

4 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

the apartment. On the third visit, Denise told Ash that Shaw was

4 During 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 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

pulling into the complex. Denise also returned to the apartment

6 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

and playing videogames in his townhome, which was across the

7 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 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

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

was at her apartment in Riverdale on the evening Shaw was shot.

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 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 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

together, Ash did not mention anything about Shaw to Terrell.

10 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

Ash and Stevens left the house later in the morning and, after

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 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 that he diluted it by adding another substance to it. In that conversation, Terrell also overheard Ash say something to Minor about “finessing” Shaw.

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

detective in the case to report that Ash had admitted killing Shaw.12

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. 12 In his testimony, Minor acknowledged that people who provide tips

13 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

of Shaw’s shooting, she washed the clothes Ash was wearing when

he came to her house and “got rid of them, discarded them.”

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 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’s 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 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. The 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 and punctuation omitted; emphasis in

original.) Thompson v. State, 302 Ga. 533, 539 (III) (A) (807 SE2d

899) (2017).

Although the characterizations of the relevance of this

21 evidence offered by the State and the trial court strongly suggest it

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 and

punctuation 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

22 motive, the jury was never instructed as to that use of the evidence,

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

23 description of those events was not of a character that would lead a

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, 312 Ga. 198, 200 (2) (862 SE2d 276)

(2021); see also Howell v. State, 307 Ga. 865, 875 (3) (838 SE2d 839)

(2020) (considering the trial court’s instructions on the limited use

of other acts 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

24 a conviction).

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 toward Shaw and his suspicions

that Shaw was responsible for stealing Jonathan’s drugs. In the

days leading up to 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

25 aggressively questioned at trial, at least one of the descriptions of

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

26 hearsay testimony from Terrell concerning statements Shaw made

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

18 OCGA § 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 circumstances, there were particularized guarantees of the

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 (1) (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).

28 As we have noted many times since the current Evidence

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 guarantees of

29 trustworthiness surrounding Shaw’s statements to Terrell.

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

30 Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019) (admission

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

31 exception. We disagree.

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.” (Citation and punctuation omitted.) 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

32 court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.

(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

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 admitting the statements under Rule 807. See, e.g., Rawls v. State,

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

34 statements and because the trial court’s decision to admit this

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

35 material and whether the police acted in bad faith in failing to preserve the evidence. To meet the standard of 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 (3) (842 SE2d 853) (2020) (correctional officer’s video of

36 post-crime search lost); Clay v. State, 290 Ga. 822, 839-843 (5) (725

SE2d 260) (2012) (defendant’s blood samples destroyed). Cf. Krause

v. State, 286 Ga. 745, 752 (8) (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.

37 Incident to the arrest, the detective collected Ash’s cell phone.

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

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 for at least 90 days before being destroyed, based on the date listed

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

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 picked up.

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

40 rejected Ash’s claim, finding in part that, “[n]o testimony given by

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

41 perceived; evident; obvious.” (Citation and punctuation omitted.)

State v. Mizell, 288 Ga. 474, 476 (2) (705 SE2d 154) (2010).

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

42 photograph to be exculpatory and that other police personnel never

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.

43 488 U. S. at 58. Here, as the trial court found, there was no evidence

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 and punctuation omitted.) Hill, 308 Ga. at 649 (3). Ash

44 presented no evidence that the detective’s actions or the police

department’s eventual destruction of the cell phone were motivated

by a conscious 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

45 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

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,

46 373 (2) (788 SE2d 494) (2016). This Court does not have to analyze

all elements of the plain-error test where an appellant fails to

establish one of them. See State v. Herrera-Bustamante, 304 Ga.

259, 264 (2) (b) (818 SE2d 552) (2018). As we have noted, satisfying

all four prongs of this test “is difficult, as it should be.” (Citation and

punctuation 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

47 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 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: Criminal

Cases, § 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)

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 (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

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, 311 Ga. 855, 866-867 (2) (860

SE2d 432) (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

49 instruction); Horton, 310 Ga. at 322 (3) (b) (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 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

50 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

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 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. 51 legal authority stands for the contrary position, whether the trial

court should have instructed the jury on the full text of the pattern

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 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

52 considered. After the trial court concluded the jury charges, Ash’s

counsel stated that she had no objections to the charges as given. We

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 where 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 either by the testimony of an additional witness or by other, independent evidence that corroborates the accomplice’s testimony.

(Citation and punctuation omitted.) 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

53 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, 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,

54 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

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 324 (3) (c). 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.” (Citation and punctuation omitted.) State

55 v. Lane, 308 Ga. 10, 21 (4) (838 SE2d 808) (2020). However, when

reviewing a claim of cumulative prejudice, “[w]e evaluate only the

effects of matters determined to be error, not the cumulative effect

of non-errors.” Scott v. State, 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, 311 Ga. 800, 808-809 (2) (d) (860 SE2d 731)

(2021). This argument fails.

Judgment affirmed. All the Justices concur.

56 Decided November 2, 2021.

Murder. Fulton Superior Court. Before Judge Farmer.

Jackie L. Tyo, for appellant.

Fani T. Willis, District Attorney, Lyndsey H. Rudder,

Richard B. Caplan, Assistant District Attorneys; Christopher M.

Carr, Attorney General, Patricia B. Attaway Burton, Deputy

Attorney General, Paula K. Smith, Senior Assistant Attorney

General, for appellee.