Graham v. State

• Court: Supreme Court of Georgia
• Decided: February 3, 2026
• Docket: S25A1056
• Status: Published

Opinion

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.

In the Supreme Court of Georgia

Decided: February 3, 2026

S25A1056. GRAHAM v. THE STATE.

LAGRUA, Justice.

Appellant Travis Santel Graham challenges his convictions for

felony murder and possession of a firearm during the commission of

a felony in connection with the shooting death of Jeffrey Jequez

Franklin. 1 On appeal, Graham asserts that his trial counsel

provided ineffective assistance in (1) failing to request a jury charge

1 Franklin was killed on July 5, 2020. On December 18, 2020, a Lowndes

County grand jury indicted Graham for felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. At a trial from January 9 to 12, 2023, the jury found Graham guilty of all charges. The trial court sentenced Graham to serve life in prison with the possibility of parole for felony murder and a consecutive five-year prison term for the firearm possession count. The aggravated assault verdict merged into the felony murder conviction. Graham filed a timely motion for new trial, which he twice amended through new counsel. After two evidentiary hearings in 2024 and 2025, the trial court entered an order denying the motion on March 27, 2025. Appellant filed a timely notice of appeal, the case was docketed in this Court to the August 2025 term, and oral argument was held on August 27, 2025. on defense of property other than habitation and a related

instruction on forcible felony; (2) in failing to object when the trial

court did not give a full charge on defense of habitation; and (3) in

failing to request a jury charge on Graham’s specific character trait

for truthfulness. He also raises a cumulative error claim under State

v. Lane, 308 Ga. 10 (2020). As explained below, these claims fail, and

we affirm.

The evidence at trial showed that Graham shot Franklin while

Franklin was in the street in front of Graham’s home, following an

altercation that involved several people outside Graham’s home. In

the early morning hours of July 5, 2020, Graham was at his home

with his girlfriend, his housemate Keyshawn Berrian, and three

friends, including Rashad Johnson, for “a get together.” At

approximately 2:30 a.m., Franklin and several friends, including

Johnson’s cousin, arrived at Graham’s house, looking to join the

party, after Johnson’s cousin had received directions to Graham’s

house.

As Franklin and his friends were getting out of their cars in

2 front of Graham’s house, Berrian walked outside with Johnson and

saw Franklin and his friends approaching the home. After Berrian

twice asked Franklin and his friends to leave, they went back toward

the road. At that point, Graham came outside and also asked

Franklin and his friends to leave. A verbal argument ensued and

then the argument escalated to a physical fight. One of the people

involved in the fight said “something about a trunk and then a gun.”

Then Graham went to his car, which was parked in the driveway,

“grabbed his gun” from the trunk, and fired a “warning shot.”

Franklin and his friends started running away. Graham fired a

second shot, hitting Franklin on his left side, under his arm.

Franklin ran across the street and collapsed in a neighbor’s yard,

where he died as a result of the single gunshot wound. A neighbor

called 911, and Graham got in his car and drove away before police

officers arrived. Graham’s gun was not recovered.

At trial, Graham testified as follows: when Graham first

walked outside, he saw a “bunch of unknown people” standing

around in the street in front of his house and trash “that was in the

3 street.” Graham loudly asked the group to leave and told them to

pick up the trash that they had strewn about. Franklin and his

friends said they did not have to leave, and Graham got into a verbal

argument with them. Graham and one of Franklin’s friends were

continuing to argue when two of the people with Franklin “started

taking off their jackets” and formed a semi-circle around Graham.

Graham saw a gun handle in the waistband of one of the men with

whom he was arguing. One of the men in the group threatened to

beat Graham up and then slammed Graham to the ground. Then,

several men started hitting and “stomping” him. Berrian came to

help Graham, and some of the men with Franklin started hitting

Berrian. Graham got up, “went to the yard [and] kept telling

everybody to leave,” and then went to the trunk of his car, which was

parked in the driveway, and took his rifle out of the car. Graham

walked to the end of the driveway, telling everybody to leave, and he

“let off a warning shot.” Franklin and his friends started to scatter

and run in different directions but then started coming back.

Graham then fired a second shot. When Graham fired the second

4 shot, Franklin was coming towards him and pushed Graham’s

girlfriend out of the way as he approached. At the time Franklin was

coming toward Graham, Franklin was saying “I’m gonna fight. I’m

gonna fight. I’m gonna get him. I’m gonna get him.” Other

individuals with Franklin were also coming toward Graham.

Graham fired the shot “because [he] was scared, and [he] knew, like,

one of them had the gun already.” Graham was not trying to shoot

or kill Franklin but just wanted everyone to leave.

Graham presented two witnesses at trial who each testified

that Graham did not have a reputation for violence and did have a

reputation for truthfulness.

1. Graham contends that his trial counsel was constitutionally

ineffective in three respects related to jury instructions. Because

Graham has not shown that his counsel performed deficiently, his

claims fail.

To prevail on a claim of ineffective assistance of counsel, an

appellant must prove deficient performance and resulting prejudice.

See Strickland v. Washington, 466 US 668, 687 (1984). To establish

5 deficient performance, an appellant must show that his attorney’s

acts or omissions were objectively unreasonable, considering all the

circumstances at the time and in the light of prevailing professional

norms. See id. at 687–90. Decisions regarding trial tactics and

strategy, which include decisions about which jury instructions to

request, may form the basis for an ineffectiveness claim only if such

decisions are so patently unreasonable that no competent attorney

would have followed the same course. See Copney v. State, 322 Ga.

794, 797–98 (2025). To establish the required prejudice, the

defendant must show that, but for his attorney’s unprofessional

errors, there is a “reasonable probability” that the result of the

proceeding would have been different. Strickland, 466 US at 694. “If

either Strickland prong is not met, this Court need not examine the

other prong.” Copney, 322 Ga. at 798 (quotation marks omitted).

(a) Graham first contends that his trial counsel should have

requested a jury instruction on defense of property other than

habitation under OCGA § 16-3-24. That statute provides that a

person is justified in using force against another person when he

6 reasonably believes that such force “is necessary to prevent or

terminate such other’s trespass on or other tortious or criminal

interference with real property other than a habitation or personal

property” and that force “intended or likely to cause death or great

bodily harm” is not justified “unless the person using such force

reasonably believes that it is necessary to prevent the commission

of a forcible felony.” OCGA § 16-3-24(a), (b).2 “Forcible felony” is

defined in OCGA § 16-1-3(6) as “any felony which involves the use

of threat of physical force or violence against any person.”

Graham contends that an instruction under OCGA § 16-3-24

2 In full, OCGA § 16-3-24 provides:

(a) A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other’s trespass on or other tortious or criminal interference with real property other than a habitation or personal property: (1) Lawfully in his possession; (2) Lawfully in the possession of a member of his immediate family; or (3) Belonging to a person whose property he has a legal duty to protect. (b) The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony. 7 was authorized because, when he shot Franklin, he was “repelling”

a trespass in his yard to prevent the commission of a forcible felony.

At the motion-for-new-trial hearing, trial counsel was asked about

whether he had a strategic reason for not asking for a charge under

OCGA § 16-3-24, and trial counsel testified that he did not have a

specific memory of why he did not ask for the charge. However, trial

counsel did testify that he considered the case to be about self-

defense; that he did not “really see it as a defense of habitation case”;

and that the trial court charged on self-defense, as well as on the

right to “stand your ground” and trespassing. 3

Additionally, Graham has not shown that trial counsel’s failure

to seek a charge under OCGA § 16-3-24 was patently unreasonable.

A competent attorney could have reasonably concluded that the

better strategy was to focus on a single, and straightforward,

3 The record reflects that the trial court did fully instruct the jury on

justification based on defense of self or others. The trial court also charged on the elements of the offense of criminal trespass, including that a person commits that offense if he remains on another person’s property after receiving notice to leave.

8 justification defense—that Graham reasonably believed that

Franklin had a gun and was threatening to inflict great bodily harm

on Graham, rather than an alternative theory of justification that

involved additional statutory elements and required additional

proof to satisfy those elements. See, e.g., Beard v. State, 317 Ga. 842,

850 (2023) (concluding that counsel’s decision to pursue a

“straightforward justification defense” instead of defense of

habitation was not patently unreasonable). See also Hood v. State,

303 Ga. 420, 426 (2018) (concluding that there was no plain error in

failing to give additional jury charges based on defense of property

where, in part, the trial court’s other instructions provided the jury

with “sufficient direction … to intelligently consider” appellant’s

justification defense (quotation marks omitted)). Thus, Graham has

failed to show that his trial counsel performed deficiently, and we

conclude that this claim fails.

(b) Graham also asserts that his trial counsel performed

deficiently in failing to object when, after the trial court agreed to

9 give a charge on defense of habitation under OCGA § 16-3-23, 4 a full

charge was not given. 5 When asked why he did not object to the

failure to give a charge on defense of habitation, trial counsel

explained that the trial court did charge on self-defense “and so that

was the basic thought,” and as noted above, trial counsel also

testified that he did not consider the case to involve defense of

4 OCGA § 16-3-23 provides:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if: (1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence; (2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or (3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony. 5 The trial court’s sole reference to defense of habitation consisted of the

following: “The defense of justification can be claimed when the person’s conduct is justified under the laws of this state for self-defense, defense of others, and defense of habitation.” 10 habitation.

On appeal, Graham contends that defense of habitation was an

applicable theory because the fight with Franklin and his friends

occurred in the curtilage of Graham’s home and the curtilage is

treated as part of the dwelling itself for certain purposes. It is

generally true that a search warrant that authorizes the search of a

home also “extends by implication to areas within the curtilage of

the dwelling.” Gebhardt v. State, 307 Ga. 587, 599 (2019). However,

Graham has not cited any cases in which the “curtilage” was

considered a part of “habitation” for the purpose of a defense of

habitation instruction, and we have found none. To the contrary, we

have held that a justification defense based on the defense of

habitation is not available “where there is no evidence that the

victim was attempting to enter or attack the habitation at the time

he was injured.” Jackson v. State, 318 Ga. 393, 399 (2024). And

Graham notably does not claim, nor does the evidence support, that

11 Franklin was trying to enter Graham’s home.6

It is well settled that trial counsel “does not perform deficiently

when he fails to advance a legal theory that would require an

extension of existing precedents and the adoption of an unproven

theory of law.” Esprit v. State, 305 Ga. 429, 438 (2019) (quotation

marks omitted). See also Copney, 322 Ga. at 808–09 (holding that

trial counsel’s failure to raise an objection to a portion of a jury

instruction that was based on a novel legal theory was not deficient).

Because Graham has not identified any case law supporting

extension of the defense of habitation to the curtilage of a home and

does not contend that Franklin was attempting to enter the

habitation, we conclude that Graham has failed to show that his

trial counsel performed deficiently in an objectively unreasonable

way in failing to ask for a jury instruction on defense of habitation

based on the shooting occurring in Graham’s yard. See Esprit, 305

Ga. at 438.

6 Given our resolution of this claim, we need not address whether the

fight occurred in the curtilage. Compare Reese v. State, 317 Ga. 189, 201–02 (2023) (discussing definition of curtilage). 12 (c) Graham also contends that his trial counsel performed

deficiently in not objecting when the trial court failed to give a

specific jury charge on Graham’s character trait for truthfulness. At

the charge conference, the trial court stated that it would give

“[Suggested Pattern Jury Instruction §] 1.31.10,[7] credibility of

witnesses.” It also stated, “Evidence was presented as to the

defendant’s character, so we will give 1.37.10.[8] And I believe we

7 At the time of Graham’s trial in January 2023, Suggested Pattern Jury

Instructions, Vol. II (Criminal) § 1.31.10 (4th ed.; updated Aug. 2022) (“PJI”) provided:

The jury must determine the credibility of the witnesses. In deciding this, you may consider all of the facts and circumstances of the case, including the witnesses’ manner of testifying, [their intelligence], their means and opportunity of knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, their interest or lack of interest in the outcome of the case, and their personal credibility as you observe it.

8 At the time of Graham’s trial in January 2023, PJI § 1.37.10 provided:

You have heard evidence of the (character of the defendant) (character of the defendant for a particular trait, more specifically ____________) in an effort to show that the defendant likely acted in keeping with such character or trait at pertinent times or with reference to issues in this case. This evidence has been offered in the form of (the opinion of (an)other witness(es)) (reputation) (specific instances of conduct of the defendant showing such trait). You should consider any such evidence along with all the other

13 agreed to the character that is to be addressed in the charge is that

of nonviolence.”

At the conclusion of the charge conference, trial counsel

indicated that he had no objections at that time and would reserve

any objections, and at the conclusion of the jury instructions, trial

counsel again stated, “We reserve ours.”9 As indicated at the charge

conference, the trial court charged the jury on testimony regarding

Graham’s character, focusing on the specific character trait of non-

violence and stating that the jury could consider Graham’s good

character in considering whether he was guilty of the charges

against him:

You have heard evidence of the character of the defendant as it relates to non-violence in an effort to show that the defendant likely acted in keeping with such character or trait at pertinent time or with reference to the issues in

evidence in deciding whether or not you have a reasonable doubt about the guilt of the defendant.

Suggested Pattern Jury Instructions, Vol. II (Criminal) § 1.37.10 (4th ed. 2007; updated Aug. 2022). 9 OCGA § 17-8-58, which became effective for trials conducted after July

1, 2007, requires parties to state their specific objection and the grounds therefore before the jury retires for deliberation and changed the prior practice that permitted counsel to reserve objections pending a motion for new trial or appeal. See State v. Kelly, 290 Ga. 29, 31 (2011). 14 this case. This evidence has been offered in the form of opinions of witnesses. You should consider any such evidence, along with all of the other evidence, in deciding whether or not you have a reasonable doubt about the guilt of the defendant. Good character is not just a witness credibility issue, nor is it an excuse for crime. However, you may consider it as weighing on the issue of whether or not the defendant is guilty of the charges in this indictment.

Additionally, the trial court thoroughly instructed the jury in the

preliminary and final instructions on the credibility of witness.

Specifically, in its final charge, the trial court gave the following

instruction:

The jury must determine the credibility of the witnesses. In deciding this, you may consider all of the facts and circumstances of the case, including the witness’s manner of testifying, their means and opportunity of knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, their interest or lack of interest in the outcome of the case, and their personal credibility as you observe it.

At the motion for new trial hearing, trial counsel could not

recall why he did not ask for a charge on the specific character trait

for truthfulness. And, given that the crux of Graham’s defense was

self-defense, a reasonable attorney could have concluded that the

15 charge on good character evidence that was given—focusing on the

trait of non-violence—as well as the general charges on witness

credibility, adequately informed the jury that it was authorized to

credit Graham’s testimony in determining whether he was justified

in shooting Franklin. See Parker v. State, 305 Ga. 136, 138 (2019)

(concluding that the giving of the pattern jury charge on good

character evidence, which did not specify a particular character

trait, “properly explained how character evidence ought to be

considered by the jury” (quotation marks omitted)). See also Huber

v. State, 319 Ga. 78, 84–85 (2024) (concluding that trial counsel’s

failure to request specific jury instruction was not deficient

performance because the instructions given by the trial court

sufficiently covered the legal principles involved in the omitted

charge); Sauder v. State, 318 Ga. 791, 814 (2024) (concluding that

trial counsel did not perform deficiently in failing to ask for specific

jury instructions where the jury instructions given adequately

covered the legal principles involved in the omitted charge).

Therefore, Graham has not established that it was patently

16 unreasonable to forgo objecting to the failure to give an additional

charge on the character trait for truthfulness, and thus, this claim

of ineffectiveness fails.

2. Finally, Graham asserts that the cumulative error rule of

State v. Lane, 308 Ga. 10, 14 (2020), applies. However, because he

has not raised any claim of trial error, either directly or as plain

error, that cumulative error rule does not apply. See Lane v. State,

312 Ga. 619, 625 (2021). Moreover, because we have neither found

nor assumed any instance of deficient performance, there is no

Strickland prejudice to consider collectively. See Lopez v. State, 318

Ga. 664, 672 n.7 (2024). See also Schofield v. Holsey, 281 Ga. 809,

811 n.1 (2007), overruled on other grounds by Lane, 308 Ga. at 17.

Accordingly, this claim is without merit.

Judgment affirmed. All the Justices concur.