317 Ga. 809 FINAL COPY
S23A0881. BATES v. THE STATE. S23A1225. JORDAN v. THE STATE. S24A0055. SOUTHERN v. THE STATE.
PINSON, Justice.
Tavius Bates, Octavious Jordan, and Jeremy Southern were
convicted along with two co-defendants of crimes arising from the
shooting death of Nicholas Hagood.1
1 The crimes occurred on March 26, 2014. On July 18, 2014, a Fulton
County grand jury indicted Bates, Jordan, Southern, and two co-defendants— Stephen Willis and Demetrius Fortson—on eight counts each: malice murder, armed robbery, felony murder predicated on armed robbery, hijacking a motor vehicle, felony murder predicated on hijacking a motor vehicle, aggravated assault, felony murder predicated on aggravated assault, and possessing a firearm during the commission of a felony. Willis alone was also indicted for possession of a firearm by a convicted felon and felony murder predicated on that charge. The defendants were tried together before a jury from August 28 to September 8, 2017. The jury found Southern guilty of all counts and found Bates, Jordan, Willis, and Fortson not guilty of malice murder but guilty of the remaining counts. We affirmed Willis’s and Fortson’s convictions on appeal. See Willis v. State, 315 Ga. 19 (880 SE2d 158) (2022); Fortson v. State, 313 Ga. 203 (869 SE2d 432) (2022). Bates was sentenced to life in prison for felony murder predicated on armed robbery, 20 years in prison for hijacking a motor vehicle, and five years in prison suspended for possessing a firearm during the commission of a felony, all to run concurrently. The remaining counts merged or were vacated by operation of law. On September 25, 2017, Bates filed a timely motion for new trial, which he amended through new counsel. After a hearing, the trial court In separate appeals, all three co-defendants argue that the
evidence was not sufficient to sustain their convictions. In addition,
Bates contends that the trial court should have granted a mistrial
when a detective testified that Jordan told police he drove “the other
subjects” to the crime scenes, which Bates says violated his
Confrontation Clause rights under Bruton v. United States, 391 U.S.
123 (88 SCt 1620, 20 LE2d 476) (1968). And Southern contends that
denied the motion for new trial, as amended, on February 21, 2023. On March 21, 2023, Willis filed a timely notice of appeal. The case was docketed to the August 2023 term of this Court and submitted for a decision on the briefs. Jordan was sentenced to life in prison for felony murder predicated on armed robbery, 20 years in prison for hijacking a motor vehicle, and five years in prison suspended for possessing a firearm during the commission of a felony, all to run concurrently. The remaining counts merged or were vacated by operation of law. On September 20, 2017, Jordan filed a timely motion for new trial, which he amended through new counsel. After a hearing, the trial court denied the motion for new trial, as amended, on February 21, 2023. On March 22, 2023, Jordan filed a timely notice of appeal. The case was docketed to the August 2023 term of this Court and submitted for a decision on the briefs. Southern was sentenced to life in prison for malice murder, 20 years in prison for armed robbery, and 20 years in prison for hijacking a motor vehicle, all to run concurrently, and five years in prison for possessing a firearm during the commission of a felony, to be served consecutively. The remaining counts merged or were vacated by operation of law. On September 25, 2017, Southern filed a timely motion for new trial, which he amended through new counsel. After a hearing, the trial court denied the motion for new trial, as amended, on June 26, 2023. On July 10, 2023, Southern filed a timely notice of appeal. The case was docketed to the December 2023 term of this Court and submitted for a decision on the briefs. Southern’s case has been consolidated on appeal with Bates’s case and Jordan’s case. 2 the trial court erred by instructing the jury about conspiracy because
there was no evidence of a conspiracy, and by allowing a jailhouse
informant to testify because the informant was acting as an agent of
the State and he obtained incriminating information from Bates
without counsel present.
Each of these claims fails. The evidence was sufficient as a
matter of constitutional due process to sustain each of these
defendants’ convictions. Bates did not preserve his Bruton claim
because he acquiesced to the trial court’s curative instruction and
failed to renew his motion for a mistrial after the instruction was
given. It was not error for the trial court to instruct the jury about
conspiracy because there was at least slight evidence of a conspiracy:
the evidence showed that Southern and Bates confronted Hagood
while the other co-defendants waited in the car, that the co-
defendants left the crime scene together after the murder with
Hagood’s stolen car and cell phone, and that the co-defendants were
either together or in contact with each other before, during, and
after the murder. And the jailhouse informant was not an agent of
3 the State because there was no evidence of an agreement between
the informant and the State.
1. Viewed in the light most favorable to the verdicts, the
evidence at trial showed the following.
On March 26, 2014, just after 12:30 p.m., Rayshon Smith was
robbed at gunpoint. Smith was outside his cousins’ apartment
building in Austell (in Cobb County) when he noticed a car driving
past slowly. The car was a silver or gray Ford Taurus with tinted
windows, and Smith could see four men inside. Smith then noticed
two men walking toward him. One of them came right up to Smith,
pointed a gun at him, and went through his pockets while looking
him in the eye. The man took Smith’s wallet, phone, and keys. The
other man also had a gun but did not come as close.
After the men left, Smith went into the apartment building and
called the police. He gave police the number of his phone that was
stolen. Later, Smith identified Southern in a photo array as the man
who had been closest to him during the robbery.
About a half hour later, at around 1:00 p.m., Joseph James was
4 at home in his apartment in Fulton County, not far from where
Smith was robbed. James was looking out the window into the
parking lot and noticed two cars pulling up. One of the cars, which
was driven by Hagood, pulled into a parking space. The other car
wedged behind it. When Hagood got out of the car, he seemed “out
of place” and “slightly disoriented.” James saw Hagood and a man
with dreadlocks standing next to the car that Hagood had been
driving, while a third man remained in that car. Four or five men
were in the other car. As James watched, Hagood appeared to check
his pockets, and then appeared to say “I don’t have anything” to the
man with dreadlocks. The man with dreadlocks appeared to “check”
Hagood, “like trying to figure out does he have something.” At that
point, one of the men from the second car got out, holding a gun, and
moved toward Hagood and the man with dreadlocks. Hagood tried
to run. James heard a gunshot. The medical examiner testified at
trial that Hagood was killed by a gunshot wound to the back.
James called 911 at 1:16 p.m. Later, when shown photo arrays,
James identified Southern as the man with the gun and Bates as
5 the man with dreadlocks who had been speaking to Hagood.2
Detective Scott Demeester, the lead investigator on the case,
arrived at the scene at around 1:45 p.m. Demeester contacted
Hagood’s wife, who told him that Hagood normally would have a cell
phone and a car, neither of which was found at the crime scene.
Hagood’s wife gave the detective Hagood’s cell phone number and
the tag number for his white Toyota Corolla, and Demeester put out
alerts for both the phone and the car.
At the murder scene, police found a wallet and set of keys
belonging to Smith, who had recently been robbed nearby. Detective
Demeester contacted Smith and learned that his cell phone had been
stolen in the robbery. The detective then subpoenaed the phone
records associated with Smith’s stolen phone, as well as those
associated with Hagood’s missing phone.
The records from Hagood’s phone showed that someone sent a
text message to Hagood’s phone after the shooting, at 1:29 p.m. But
2 At trial, James said he was “troubled” when he identified Bates in the
photo array, because the photo of Bates in the array did not show him with a dreadlocks hairstyle. See Fortson, 313 Ga. at 210 (1). 6 that message was not received until 3:10 p.m., indicating that the
phone was powered off or otherwise disconnected in the interim.
When Hagood’s phone finally received the message, it “pinged” off a
cell tower in the area of an apartment complex on Kelly Lake Road
in Decatur. Jordan’s aunt lived in that complex. Jordan himself was
living at a nearby hotel, and Southern lived in the area, too. A
maintenance man from the Kelly Lake Road apartment complex
testified that he had seen Hagood’s white Toyota Corolla and the
defendants’ silver Ford Taurus parked at that apartment complex
later in the week, after the shooting. Hagood’s car was eventually
recovered in the same area.
The records from Rayshon Smith’s cell phone showed that
someone used it several hours after it was stolen to call MetroPCS
customer service to unlock it. After it was unlocked, the phone was
used to place and receive calls and text messages to and from people
that phone had never been used to contact before it was stolen. The
new contacts included Southern, his co-defendant Stephen Willis,
Jordan’s girlfriend, and a phone number belonging to the mother of
7 the other co-defendant, Demetrius Fortson, who often used his
mother’s phone. Police searched the phone of another of the new
contacts in Smith’s phone, Dionte Wooten, and found that Smith’s
number was saved in Wooten’s phone under Jordan’s nickname,
“Tay Tay.”
Jordan and Bates were arrested and interviewed. In Jordan’s
interview, he admitted he was present at the armed robbery of
Smith, that he took Smith’s phone (and later sold it), and that he
then drove to another location where a “white man” was robbed.
Bates, in his statement, admitted he was present at both the robbery
of Smith and the shooting of Hagood. Bates claimed that he was
texting while the crimes were committed, but his phone records
showed no text messages sent or received at that time. Portions of
their statements were played for the jury at trial. Neither Jordan
nor Bates mentioned any of their co-defendants in the portions of
their statements that were played at trial.
In the portion of Jordan’s interview that the jury did not hear,
Jordan identified his co-defendants by name. Using that
8 information, Detective Demeester obtained a search warrant for the
cell-phone records of Jordan, Bates, Southern, and Willis, as well as
Fortson’s mother. From those records, detectives put together a
timeline of the defendants’ whereabouts and phone activities on the
day of the crimes, as follows.
On the morning of the crimes, Jordan, Bates, Southern, and
their co-defendants were in regular contact. Jordan and Southern
started out in the area of Decatur where they both lived, and their
co-defendant Willis started out somewhere west of Stone Mountain.
Jordan’s and Southern’s phones called each other at 8:53 a.m. and
9:20 a.m., and Jordan’s and Bates’s phones called each other at
10:19 a.m., 10:24 a.m., and 10:32 a.m. Bates’s phone then went
inactive for three hours, but Jordan and Southern continued using
their phones. Shortly after 10:30 a.m., Jordan’s and Southern’s
phones drove north on I-285 toward Stone Mountain Highway, then
east on the highway toward Stone Mountain. Jordan’s and
Southern’s phones called Willis’s phone at 10:48 a.m. and 10:59 a.m.,
respectively; all three phones pinged off the same cell tower near
9 Stone Mountain. A little later, Southern’s phone drove west on Stone
Mountain Highway and south on I-285, heading back the way it and
Jordan’s phone had come. (Jordan’s phone was inactive during this
time.) At 12:05 p.m., Southern’s phone called Fortson’s mother’s
phone while Southern was approaching Fortson’s home in southeast
Atlanta.
A short time later, just after Smith was robbed, Jordan’s phone
received a call at 12:37 p.m., and Willis’s phone made and received
calls at 12:43 p.m. and 12:47 p.m., all in the area of the robbery.
Southern’s phone pinged off a cell tower in the same area at the
same time. Likewise, minutes before Hagood was killed, Jordan’s,
Southern’s, and Willis’s phones all made calls near the murder
scene.
The phones went silent for a time after the murder. Then, at
1:47 p.m., Bates’s and Willis’s phones both made calls near Fortson’s
home. Jordan’s and Southern’s phones made and received calls a
short time later in the same area. All five defendants’ phones pinged
off cell towers in that area that afternoon—as did Hagood’s stolen
10 phone, at 3:10 p.m.
The State also introduced testimony from a jailhouse
informant. The informant, Victor Seldon, was in jail with Bates, who
had been arrested on an unrelated charge after Hagood was killed.
While they were in jail together, Bates told Seldon about the armed
robbery of Rayshon Smith. Seldon asked his family to look into the
matter and was eventually put in touch with the Cobb County
district attorney’s office. The district attorney’s office arranged for
Seldon to testify at the armed robbery trial. On the day Seldon was
to testify, while waiting in a holding cell in the courthouse basement,
he saw Bates and Southern walk by. Bates said to Southern, “[t]hat’s
that motherf**ker right there.” Southern then said to Seldon, “Hey,
man, keep your motherf**king mouth closed. We know your family.
We know where they live. We even know what car they drive. Keep
your motherf**king mouth closed.” Southern named the specific
model of car that Seldon’s wife had recently purchased, which
convinced Seldon that “they had to be pretty close upon it.”
Frightened by that threat, Seldon did not testify at the armed
11 robbery trial. Later, Seldon saw Bates again in the jail. Bates, who
knew that Seldon would be released soon, offered to pay Seldon to
“get rid of” a gun for Bates after Seldon was released.
2. All three appellants contend that the evidence was
constitutionally insufficient to sustain their convictions. See
Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61
LE2d 560) (1979). Bates and Jordan, relying on OCGA § 24-14-6,
additionally argue that the evidence against them—which they
characterize as purely circumstantial—did not exclude all
reasonable hypotheses other than their guilt.
“We evaluate a due process challenge to the sufficiency of the
evidence by viewing the evidence presented at trial in the light most
favorable to the verdicts, and asking whether any rational trier of
fact could have found the defendant guilty beyond a reasonable
doubt of the crimes of which he was convicted.” Henderson v. State,
317 Ga. 66, 72 (2) (891 SE2d 884) (2023). We do not reweigh
evidence, see Williams v. State, 304 Ga. 658, 660 (1) (821 SE2d 351)
(2018), and we leave to the jury “the resolution of conflicts or
12 inconsistencies in the evidence, credibility of witnesses, and
reasonable inferences to be derived from the facts.” Perkins v. State,
313 Ga. 885, 891 (2) (a) (873 SE2d 185) (2022) (citation and
punctuation omitted).
A conviction may rest on circumstantial evidence alone if that
evidence “exclude[s] every other reasonable hypothesis save that of
the guilt of the accused.” OCGA § 24-14-6. See Davenport v. State,
309 Ga. 385, 388 (1) (846 SE2d 83) (2020). Not every hypothesis is a
“reasonable” one, and the evidence “need not exclude every
conceivable inference or hypothesis,” only the reasonable ones.
Graves v. State, 306 Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation
and punctuation omitted; emphasis in original). “The questions
whether any alternative hypotheses are reasonable and whether the
circumstantial evidence excludes any such hypotheses are for the
jury.” Willis v. State, 315 Ga. 19, 24 (2) (880 SE2d 158) (2022). See
also Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d 855) (2009).
Finally, we will not disturb the jury’s findings on those questions
unless they are “insupportable as a matter of law.” Graves, 306 Ga.
13 at 487 (1) (citation and punctuation omitted).
Here, the evidence was sufficient to authorize the jury to find
Bates, Jordan, and Southern guilty of Hagood’s murder and the
related crimes. Southern was directly identified as the shooter by a
witness to the murder; the same witness identified Bates as the
second man who confronted Hagood. See Jackson v. State, 307 Ga.
770, 772 (838 SE2d 246) (2020) (eyewitness testimony is direct
evidence of guilt).3 Jordan admitted that he drove the co-defendants
to the scene of the murder, and Bates admitted he was present, too.
See Thrift v. State, 310 Ga. 499, 502 (1) (852 SE2d 560) (2020)
3 Bates acknowledges that James identified him as the second man who
confronted Hagood. But he contends that we “determined” that the second man was his co-defendant Fortson when we affirmed Fortson’s convictions. We did not. At trial, James was unsure whether the man with dreadlocks he had seen going through Hagood’s pockets was Bates or Fortson. We concluded the evidence authorized the jury to find that it was Fortson. See Fortson, 313 Ga. at 210-212 (1). This Court did not determine that it was Fortson—nor could we, as a court of review. See id. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (“The Supreme Court shall be a court of review….”); Ellington v. State, 314 Ga. 335, 341 (2) (877 SE2d 221) (2022) (“the resolution of . . . conflicts or inconsistencies in the evidence is for the jury, and we will not reweigh that evidence on appeal”). And in any event, James’s identification of Bates was direct evidence of his guilt even though James expressed doubts. “[D]irect evidence is not converted into circumstantial evidence by a witness’s credibility or lack thereof.” Harper v. State, 298 Ga. 158, 161 (780 SE2d 308) (2015). 14 (confessions are direct evidence of guilt). Also, Smith’s stolen wallet
and keys were found at the murder scene, suggesting that the men
who shot Hagood were the same men who had earlier robbed
Smith—and “from that inference flowed further evidence
implicating the group.” Willis, 315 Ga. at 24 (2). Indeed, Smith
identified Southern as one of the robbers, and after the murder,
Jordan used Smith’s stolen phone and later sold it. See Eckman v.
State, 274 Ga. 63, 65 (1) (548 SE2d 310) (2001) (circumstantial
evidence of guilt included defendant’s use of “the fruits of the multi-
county crime spree”). And later, Southern and Bates threatened
Victor Seldon not to testify at their trial for the armed robbery. That
evidence was sufficient as a matter of constitutional due process to
support the co-defendants’ convictions.
Bates and Jordan also raise a statutory sufficiency argument
under OCGA § 24-14-6. They contend that the evidence of their
guilt—which, again, they characterize as entirely circumstantial—
did not eliminate the hypothesis that they were merely present at
the crime scenes.
15 To begin with, the circumstantial evidence statute does not
apply to Bates because there was direct evidence of his guilt: a
witness identified him with Southern and Hagood at the scene of the
shooting. See Garay v. State, 314 Ga. 16, 20 (2) (875 SE2d 631)
(2022) (“if there is any direct evidence presented by the State, the
circumstantial evidence statute does not apply to a sufficiency
analysis”). So we apply the statute only to review the sufficiency of
the evidence against Jordan, which arguably was all circumstantial.
Ultimately, however, it makes no difference, because the
evidence was more than sufficient for the jury to reject the claim
that Bates and Jordan were merely present, both as a matter of
constitutional due process and under OCGA § 24-14-6. A defendant
may be guilty of a crime if he directly commits the crime or if he is a
“party thereto.” OCGA § 16-2-20 (a). A party to a crime is one who,
among other things, “aids or abets” in its commission or “advises,
encourages, hires, counsels, or procures another to commit the
crime.” OCGA § 16-2-20 (b) (3)-(4). See also Muse v. State, 316 Ga.
639, 648 (2) (889 SE2d 885) (2023). To establish that a defendant is
16 a party to a crime, the State must show “proof of a shared criminal
intent with the actual perpetrator.” Henderson, 317 Ga. at 72 (2)
(citation and punctuation omitted) (alterations accepted). That
shared criminal intent may be inferred from the defendant’s
“presence, companionship, and conduct before, during, and after the
offense.” Jones v. State, 314 Ga. 214, 232 (3) (875 SE2d 737) (2022)
(citation and punctuation omitted). But the defendant’s mere
presence at the crime scene, without more, is not enough to show a
shared criminal intent. See McCoy v. State, 315 Ga. 536, 541 (b) (883
SE2d 740) (2023).
The evidence here authorized the jury to find that Bates and
Jordan were guilty of Hagood’s murder as parties to the crime and
to reject the hypothesis that they were merely present at the scene.
Besides the evidence recounted above, the cell-phone data showed
that the co-defendants’ phones moved together around the city
before and after the crimes and stayed in communication throughout
the day. The phones of Bates, Jordan, and Southern were all in
contact in the morning. Jordan’s and Southern’s phones traveled
17 together from the area of their homes in Decatur to near Stone
Mountain. Then those two phones and Willis’s phone returned to
Decatur and contacted Fortson’s mother’s phone near where Fortson
lived. Later, the phones of Jordan, Southern, and Willis all made or
received calls near the armed robbery and near the murder. See
Grier v. State, 305 Ga. 882, 884 (1) (828 SE2d 304) (2019) (cell-phone
records placing defendant near crime scene contributed to evidence
authorizing guilty verdict). Still later, all the co-defendants’ phones
were active back in Decatur, near where several of them lived, in the
same area where Hagood’s stolen phone was used and where his
stolen car was recovered. See Carter v. State, 305 Ga. 863, 867 (2)
(828 SE2d 317) (2019) (circumstantial evidence of guilt included the
location of the victim’s phone after the victim’s death).
Some of Bates’s and Jordan’s individual conduct also supported
the inference of their guilt. Bates lied to police that he was texting
when the crimes occurred, from which the jury could infer that he
was trying to hide his own participation. And Jordan parked his car
behind Hagood’s car at the murder scene as though to prevent
18 Hagood from leaving, from which the jury could infer that Jordan
knew a crime was about to be committed.
Given the ample evidence that Bates and Jordan shared a
criminal intent with Southern and the other co-defendants, the jury
could reject as unreasonable the claim that they were merely
present at the crime scenes. See OCGA § 24-14-6; Poole v. State, 312
Ga. 515, 522-523 (863 SE2d 93) (2021). Because the jury’s finding is
not insupportable as a matter of law, we do not disturb it. See
Graves, 306 Ga. at 487 (1).
Finally, Bates separately contends that the trial court erred by
denying his motion for a directed verdict of acquittal. Because our
standard for reviewing a direct-verdict motion is the same as that
for reviewing the constitutional sufficiency of the evidence, see
Crawford v. State, 312 Ga. 452, 454-455 (2) (863 SE2d 75) (2021),
this claim likewise fails.
3. In Case No. S23A0881, Bates contends the trial court abused
its discretion by denying his motion for mistrial after Detective
Demeester testified about the statement Jordan gave to police. In
19 Bates’s view, a portion of Jordan’s statement violated Bates’s
Confrontation Clause rights under Bruton, because it was
“powerfully incriminating” of Bates.
(a) While being questioned by the State, Detective Demeester
testified that Jordan had implicated “the other subjects” in his
statement:
Q: [Jordan’s counsel] asked you some questions about Mr. Jordan. Do you remember? A: Yes. Q: He asked you did Mr. Jordan put himself out [of] the car. Do you recall the question? A: Yes. Q: Okay. What role in this whole armed robbery in Cobb and murder in Fulton does Jordan put himself in? A: That he drove the other subjects to the location in Cobb County and then removed them from the robbery location after they robbed Mr. Smith and then was down on Fulton Industrial Boulevard with the other subjects when Mr. Hagood pulled up.
Bates’s counsel immediately asked to make a motion outside the
presence of the jury. When the jury had been excused, counsel moved
for a mistrial, arguing that Demeester had mentioned “the other
subjects,” and the only “other subjects” were Jordan’s co-defendants.
See Bruton, 391 U.S. at 135-137 (recognizing that “powerfully
20 incriminating extrajudicial statements” by a non-testifying co-
defendant can violate a defendant’s right to confront witnesses
against him).
The court decided that it would issue a curative instruction.
Bates’s counsel responded, “If the court is going to instruct the jury
to disregard that, then we just need to move on from that point.” The
court then instructed the jury:
You are to disregard the witness’s answer. You are not to consider that in the evidence. And you are to disregard it completely. So anyway, we’ll continue in a minute. But if you are unable to follow my instruction, please raise your hand.
No juror raised their hand, the trial continued, and Bates’s counsel
did not renew the motion for a mistrial.
(b) We do not reach Bates’s Bruton claim because it was not
preserved for appeal. To ensure appellate review of the denial of a
motion for mistrial, a defendant generally must preserve the issue
at trial. See Jones v. State, 317 Ga. 466, 472 (2) (893 SE2d 741)
(2023). To do that, the defendant first must make a motion at the
earliest opportunity in the trial court. See Thomas v. State, 310 Ga.
21 579, 581-582 (2) (853 SE2d 111) (2020) (“If the defendant did not
make a contemporaneous motion for a mistrial at the time the
defendant became aware of the matter giving rise to the motion,
then the defendant has waived review of this issue on appeal.”)
(citation and punctuation omitted). If the trial court denies the
motion, the error is preserved. See, e.g., Richardson v. State, 308 Ga.
70, 71 (2) (838 SE2d 759) (2020) (reviewing trial court’s denial of
mistrial on the merits where defendant “moved for a mistrial, which
the trial court denied”). But if the trial court instead takes steps to
cure the matter giving rise to the motion, like giving a curative
instruction, the defendant has a choice: accept the curative
instruction and move on, or object, renew the motion for mistrial,
and obtain a definitive ruling on that motion. The denial of the
mistrial motion is preserved for review only in the latter case—that
is, by the renewal of the mistrial motion and a definitive ruling on
that motion.4 See Hartsfield v. State, 294 Ga. 883, 886 (2) (757 SE2d
4 The defendant’s failure to preserve a mistrial motion for review does
not necessarily mean that the underlying alleged error that was the basis of
22 90) (2014) (denial of mistrial waived for appeal because defendant
“failed to renew his motion for mistrial following the trial court’s
admonishment and curative instruction”); McCoy v. State, 273 Ga.
568, 572 (8) (544 SE2d 709) (2001) (denial of mistrial waived for
appeal because defendant “neither objected to the curative
instruction nor renewed his motion for a mistrial”).
Bates did not take the steps necessary to preserve his mistrial
motion for appeal. He made a contemporaneous motion: as soon as
Detective Demeester testified about Jordan mentioning “the other
subjects,” Bates asked for the jury to be excused and then moved for
a mistrial. But when the trial court proposed issuing a curative
instruction, Bates not only did not object to the instruction, but
acquiesced: counsel said “If the court is going to instruct the jury to
disregard that, then we just need to move on from that point.” And
Bates did not renew the motion for mistrial after the trial court
the mistrial motion cannot be reviewed. If the underlying alleged error was evidentiary in nature, it may be reviewed for plain error so long as the defendant raises it on appeal. See, e.g., King v. State, 316 Ga. 611, 618 (3) (c) (889 SE2d 851) (2023). Here, however, Bates argues on appeal only that the trial court abused its discretion in denying his mistrial motion. 23 issued the curative instruction. Having failed to object to the
curative instruction and renew the motion for mistrial, Bates did not
preserve the issue for appeal. See Hartsfield, 294 Ga. at 886 (2);
McCoy, 273 Ga. at 572 (8). See also Blackshear v. State, 285 Ga. 619,
621 (4) (680 SE2d 850) (2009) (declining to review Confrontation
Clause issue that was not properly preserved for appeal).
4. In Case No. S24A0055, Southern contends the trial court
erred by instructing the jury on conspiracy over his objection.5 We
review de novo a properly preserved claim that a trial court gave an
incorrect jury instruction. See Reese v. State, 314 Ga. 871, 879-880
5 The trial court instructed the jury about conspiracy as follows:
A person commits conspiracy to commit a crime when that person together with one or more other persons conspires to commit any crime in any one or more of such person — and any one or more of such person does any overt act to bring about the object of the conspiracy. A conspiracy is an agreement between two or more persons to do an unlawful act. And the existence of a conspiracy may be established by proof of acts and conduct as well as proof of an express agreement. When persons associate themselves in an unlawful enterprise, any act done by any party to the conspiracy to further the unlawful enterprise is considered to be the act of all conspirators. However, each person is responsible for the acts of others only insofar as such acts are naturally and necessarily done to further the conspiracy. Whether or not a conspiracy existed in this case is a matter for you to determine. 24 (2) (880 SE2d 117) (2022).
A conspiracy instruction is authorized even if no defendant is
charged with that offense, see OCGA § 16-4-8 (defining offense of
conspiracy), so long as “slight evidence tends to show a conspiracy.”
Brown v. State, 304 Ga. 435, 441 (3) (819 SE2d 14) (2018). And a
conspiracy can be shown by either an express agreement to commit
a crime, see Shepard v. State, 300 Ga. 167, 170 (3) (794 SE2d 121)
(2016), or a “tacit mutual understanding between persons to pursue
a common criminal objective,” Wilson v. State, 315 Ga. 728, 731 (2)
(883 SE2d 802) (2023) (citation and punctuation omitted). The
mutual understanding may be established either by direct proof or
by inference from acts and conduct which “disclose a common design
to act together for the accomplishment of the unlawful purpose.” Id.
(citation and punctuation omitted). Finally, “it is well established
that presence, companionship[,] and conduct that discloses a
common design before and after the offense are circumstances which
may give rise to the existence of a conspiracy.” O’Neal v. State, 316
Ga. 264, 269 (4) (888 SE2d 42) (2023) (citation and punctuation
25 omitted).
In light of this well-settled law on what evidence can establish
a conspiracy, here there was slight—indeed, ample—evidence of a
conspiracy between Southern and his co-defendants. The evidence
showed that Southern and Bates confronted Hagood together while
the other co-defendants waited nearby in two separate cars, and that
after Southern shot Hagood, the co-defendants left together with
Hagood’s car and cell phone. And Southern was together with or in
contact with the co-defendants throughout the day of the crimes.
That was sufficient to support an inference that Southern and at
least one of the other co-defendants had a mutual understanding
that they would rob Hagood at gunpoint. See O’Neal, 316 Ga. at 270
(4) (not error to instruct jury about conspiracy when evidence was
“sufficient to support the inference that O’Neal and at least one of
the other men in the car had a mutual, if only tacit, agreement to
lure [the victim] to meet with them under the guise of a drug
transaction and then rob [the victim] of his money and/or phone”);
Smith v. State, 306 Ga. 753, 758 (2) (833 SE2d 117) (2019) (not error
26 to instruct jury about conspiracy when evidence showed defendant
and his co-defendants “rode together to the house in their gang
territory where [the victim] was planning to sell drugs,” “fled the
scene together after robbing and shooting” the victim, and
“communicated with each other and were together before, during,
and after the crimes”). Because the evidence supported an inference
that Southern and at least one of his co-defendants had a “common
design to act together for the accomplishment of the unlawful
purpose,” Wilson, 315 Ga. at 731 (2) (citation and punctuation
omitted), it was not error for the trial court to instruct the jury on
the subject of conspiracy. See O’Neal, 316 Ga. at 270 (4); Brown, 304
Ga. at 441 (3).
5. Southern also contends that the trial court erred by
admitting the testimony of the jailhouse informant, Seldon, over
Southern’s objection. In Southern’s view, Seldon’s testimony should
have been suppressed because, when he and Bates spoke in the jail,
Seldon was acting as an agent of the State and Bates did not have
an attorney present, which violated Bates’s right to counsel under
27 the Sixth Amendment to the United States Constitution. See
Massiah v. United States, 377 U.S. 201, 206 (84 SCt 1199, 12 LE2d
246) (1964).6 In reviewing a trial court’s denial of a motion to
suppress on Sixth Amendment grounds, we accept the trial court’s
factual findings unless they are clearly erroneous, and we review de
novo the trial court’s application of the law to the facts. See Taylor
6 The State contends that this claim is not preserved for appeal because
Southern did not object to Seldon’s testimony on this specific ground at trial. But whether Southern preserved this claim is not so clear from the record here. The State initially sought to introduce Seldon’s testimony under the co- conspirator exception to the hearsay rule, as Seldon would testify that Bates asked him to “get rid of” a gun. See OCGA § 24-8-801 (d) (2) (E) (hearsay rule does not exclude a statement by a co-conspirator that is in furtherance of the conspiracy, including in the concealment phase). Then Bates—not Southern— moved to disqualify Seldon’s testimony on the ground that Southern argues now—that is, that Seldon was acting as a State agent when he spoke with Bates. The trial court heard argument from Bates before trial, and denied that motion. Separately, Southern argued before trial that the co-conspirator exception did not apply to Seldon’s testimony because all the alleged co- conspirators were in custody when Bates made his hearsay statement. The trial court did not initially rule on Southern’s argument. The next morning, the court heard further argument from Southern on the same issue, and at that point decided it would allow Seldon to testify. Southern’s counsel responded, “For purposes of the record, Judge, we except.” In light of its context, Southern’s objection could be understood as going only to the co-conspirator hearsay issue he had argued all along. But it could also be understood as a blanket objection that covered the ground Southern asserts here. Given this ambiguity, and because the issue on the merits is not particularly close, we assume without deciding that Southern preserved his claim for ordinary appellate review. See Outlaw v. State, 311 Ga. 396, 399 (2) (b) (858 SE2d 63) (2021). 28 v. State, 312 Ga. 1, 9 (3) (860 SE2d 470) (2021).
Southern’s claim fails. Under Massiah, a defendant’s Sixth
Amendment right to the assistance of counsel “is violated by the
admission of incriminating statements which a government agent
deliberately elicits after indictment and in the absence of counsel.”
Higuera-Hernandez v. State, 289 Ga. 553, 554 (2) (714 SE2d 236)
(2011). But an inmate who merely “acts upon the expectation of an
unpromised reward does not thereby become an agent for the state.”
Rai v. State, 297 Ga. 472, 479 (3) (775 SE2d 129) (2015) (citation and
punctuation omitted). Accord Burgan v. State, 258 Ga. 512, 515 (5)
(371 SE2d 854) (1988). And that is all that Southern argues here: he
claims only that Seldon is a “professional snitch” who has testified
for the State several times before, and who obtains confidential
information in jail with the intent of turning it over to the State to
earn a sentence reduction. In other words, Southern argues that
Seldon, at most, “acts upon the expectation of an unpromised
reward.” Rai, 297 Ga. at 479 (3) (citation and punctuation omitted).
Absent an actual agreement between Seldon and the State to obtain
29 information on behalf of the State, see id. at 478-479, Southern
cannot show that Seldon was an agent for the State, and so his claim
fails.
Judgments affirmed. All the Justices concur.
Decided December 19, 2023.
Murder. Fulton Superior Court. Before Judge Krause.
Charles H. Frier, for appellant (case no. S23A0881).
Melissa Akins, for appellant (case no. S23A1225).
Sharp Georgia Law Firm, Randall P. Sharp, for appellant
(case no. S24A0055).
Fani T. Willis, District Attorney, Kevin C. Armstrong, Mathew
E. Plott, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Beth A. Burton, Deputy Attorney General, Paula K. Smith,
Clint C. Malcolm, Meghan H. Hill, Senior Assistant Attorneys
General, M. Catherine Norman, Eric C. Peters, Assistant Attorneys
General, for appellee.