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: April 21, 2026
S26A0306. LARKINS v. THE STATE.
LAGRUA, Justice.
Appellant Matthew Larkins appeals his convictions for malice
murder and other crimes related to the shooting death of Shanna
Smith. 1 On appeal, Larkins argues that his convictions should be
————————————————————— 1 Smith was shot and killed on August 4, 2016. On December 28, 2018, a
Fulton County grand jury indicted Larkins, Dejon Fuller, Richard Ash, Travon Mack, and Darien Sherry for the following counts: participation in criminal street gang activity (Count 1); malice murder (Count 2); felony murder predicated on aggravated assault with a deadly weapon (Count 3); felony murder predicated on criminal damage to property (Count 4); felony murder predicated on participation in criminal street gang activity (Count 5); felony murder predicated on possession of a firearm by a convicted felon—as to Ash (Count 6); felony murder predicated on possession of a firearm by a first offender probationer—as to Fuller (Count 7); felony murder predicated on possession of a firearm by a convicted felon—as to Larkins (Count 8); felony murder predicated on possession of a firearm by a convicted felon—as to Mack (Count 9); aggravated assault with a deadly weapon (Count 10); criminal damage to property (Count 11); two counts of possession of a firearm during the commission of a felony (Counts 12 and 13); possession of a firearm by a convicted felon—as to Ash (Count 14); possession of a firearm by a first offender probationer—as to Fuller (Count 15); possession of a firearm by a convicted felon—as to Larkins (Count 16); and possession of a firearm by a convicted felon—as to Mack (Count 17). Fuller pleaded guilty to a reduced charge of voluntary manslaughter and reversed based on the following contentions: (1) the evidence was
insufficient to support the convictions in this case because the State
failed to adequately corroborate the testimony of accomplice Dejon
Fuller; (2) the trial court committed plain error when it gave a
misleading jury instruction on the use of a testifying co-defendant’s
out-of-court statements and trial testimony; (3) Larkins’s trial
counsel was constitutionally ineffective for failing to object when the
trial court improperly commented on the evidence presented at trial;
(4) the trial court erred when it admitted hearsay statements under
————————————————————— testified for the State at trial. Before trial, Sherry’s case was severed, and Count 1 (participation in criminal street gang activity) and Count 5 (felony murder predicated on participation in criminal street gang activity) were bifurcated. Larkins, Ash, and Mack were then jointly tried on the remaining counts from October 15 to October 23, 2019. Larkins was found guilty on all counts against him that were not bifurcated for trial (i.e., Counts 2, 3, 4, 8, 10, 11, 12, 13, and 16). The jury also found Mack guilty on all such counts, but his case is not part of this appeal. The jury was unable to reach a verdict on the charges against Ash. The State moved to nolle pross Counts 1 and 5 against Larkins and Mack, and the trial court granted the request without objection. The trial court sentenced Larkins to life in prison on the malice murder count (Count 2), plus a total of 25 consecutive years to serve on Counts 11, 12, 13, and 16. The remaining counts merged or were vacated by operation of law. Larkins filed a timely motion for new trial, which he later amended through new counsel on January 13, 2021. After holding an evidentiary hearing on the motion for new trial, the trial court denied the motion on December 20, 2024. Larkins filed a timely notice of appeal on January 11, 2025. This case was docketed in this Court to the term beginning in December 2025 and was orally argued on February 3, 2026. 2 the co-conspirator exception; and (5) Georgia case law permitting
prosecutors to make a non-substantive initial closing argument is
wrongly decided and must be corrected, as it is prejudicial to
defendants. For the reasons that follow, we affirm.
The evidence presented at trial showed that, around 5:30 a.m.
on August 4, 2016, Smith was shot and killed inside her vehicle as
she drove away from a co-worker’s house on Hadlock Street in
Fulton County. According to that co-worker, Dejuanzell Banks,
Smith gave Banks a ride home after their overnight shift ended at
4:30 a.m. When Smith and Banks arrived at Banks’s house, they sat
in her car—a dark green BMW sedan—for a few minutes, and Banks
saw two cars make a “weird crazy turn” onto Hadlock Street from
Leslie Avenue—an adjoining street—“following each other kind of
fast.” Banks testified that the “car in the front” was a red, four-door
“sedan, maybe an Impala.” Banks soon exited Smith’s car and
watched her drive away, “going towards Leslie.” As Banks turned
and entered his house, he heard multiple gunshots nearby—what
sounded “like a whole clip.” Worried that Smith could have been
3 struck, Banks tried numerous times to reach Smith on her cell
phone, but he got no response. Banks then called 911.
Several of Banks’s neighbors also heard gunshots around 5:30
a.m. on August 4 and called 911. One neighbor testified that she
looked out the window and saw two people running from Hadlock
Street to Leslie Avenue, one of whom was holding a “large” handgun,
shooting at a car driving down Hadlock Street towards Leslie
Avenue. She then saw the car swerve “down the embankment
behind [her] house” on Leslie Avenue. Another witness, Gerald
Slaughter, testified that, after hearing “gunfire,” he saw two cars
following a BMW—a “red four-door Chevy Impala” and a “brown
kind of light beige color square Benz”—and then saw at least three
individuals “g[e]t out of the cars,” “walk[] down to” the BMW, and
“start[] to unload” their weapons in the direction of the BMW. After
the shooting, Slaughter saw the shooters get back into the Impala
and the “Benz” and noted that one of them had “dreads.”2
————————————————————— 2 The record reflects that Larkins wore his hair in dreads around the time of this incident. 4 An Atlanta Police Department officer responded to the scene
and discovered Smith’s BMW in a ditch, with multiple “bullet holes
in the back windshield,” and Smith in the driver’s seat, with
multiple gunshot wounds. Smith was transported to the hospital,
where she was “pronounced deceased.” The medical examiner
testified that Smith died from a gunshot wound to the back of her
head, which exited through her left temple.
Officers also collected numerous shell casings, including three
9mm shell casings from the same firearm, one .25-caliber shell
casing, eight .45-caliber shell casings from the same firearm, five
.380-caliber shell casings from the same firearm, eighteen .223-
caliber shell casings from the same firearm, and seven .223-caliber
shell casings from the same firearm. Officers also located a “black
flip phone.” Atlanta Police Detective Summer Benton, the lead
detective in this case, testified that she called the phone number
appearing most frequently in the call history. Karemnescia Jones
answered Detective Benton’s call, and based on that phone call,
Detective Benton established that the cell phone belonged to Fuller,
5 one of Larkins’s co-defendants. Detective Benton obtained a search
warrant for Fuller’s cell phone and phone records, and during her
review of the corresponding cell phone records, she developed
“[m]ultiple numbers of interest”—phone numbers called by Fuller’s
cell phone “numerous times both before and immediately after the
homicide … back-to-back-to-back.” Detective Benton then secured
search warrants to obtain the cell phone records for those phone
numbers.
Detective Benton determined that one of the cell phone
numbers communicating with Fuller’s cell phone during the
pertinent timeframe had a subscriber name of “Quicksand” with an
associated address of 7265 Ginger Court in Riverdale. Evidence was
presented that, a few hours prior to Smith’s shooting, Cortez
Thompson was shot and injured at 7265 Ginger Court, which was
later determined to be Larkins’s residence.3
————————————————————— 3 A Clayton County police officer testified that he was dispatched to 7265
Ginger Court on the night of August 3, 2016, to investigate Thompson’s shooting, and another police officer testified that he was dispatched to the hospital around 9:00 p.m. that night to question Thompson about the shooting. 6 Atlanta Police Detective David Quinn, who assisted Detective
Benton in investigating this case, testified that the investigation of
Smith’s shooting went “cold” for several months. During that
timeframe, Detective Quinn tried to reach Jones, Fuller’s girlfriend,
in an effort to locate and communicate with Fuller, but Jones would
not respond to his calls or agree to meet with him. Eventually, on
February 20, 2017, Detective Quinn served Jones with a grand jury
subpoena for an appearance on February 21, 2017. When Jones
arrived at the Fulton County Courthouse on February 21 to appear
before the grand jury, Fuller accompanied her. At the time, Fuller
had “an active probation warrant,” so he was detained and
transported to the Atlanta Police Department for an interview. Prior
to interviewing Fuller, Detective Quinn advised Fuller of his
Miranda rights,4 which Fuller agreed to waive.
During Fuller’s initial interview on February 21 and a
subsequent interview on February 23, Fuller disclosed the identity
of several additional suspects in Smith’s shooting, including
————————————————————— 4 See Miranda v. Arizona, 384 US 436 (1966).
7 Larkins—whom Fuller referred to as “Quicksand” or “Quick”—and
Larkins’s co-defendants, Richard Ash and Travon Mack. During the
interviews, investigators also learned that Darien Sherry, another
one of Larkins’s co-defendants,5 owned a 2014 red Chevrolet Impala,
which police officers later impounded and searched pursuant to a
search warrant, discovering bullet holes on the exterior of the
vehicle that had been covered with black duct tape. Additionally,
investigators discovered a public Instagram account for “Quicksand
220,” which, according to Fuller’s testimony, was Larkins’s
Instagram profile name. In the postings on Quicksand 220’s
Instagram account, investigators located a screenshot of the arrest
warrant issued by the Atlanta Police Department for this shooting,
with brackets drawn around the following language: “A third male
identified in this case is Matthew Von Larkins.” Also posted to
Quicksand 220’s Instagram account was what appeared to be a
“selfie photo” of Larkins looking into a mirror, and in this
photograph, Larkins’s hair was styled in long dreads.
————————————————————— 5 Sherry was not tried with Larkins, Ash, and Mack.
8 Fuller testified as a State’s witness at trial pursuant to an
agreement with the State that resulted in him pleading guilty to
voluntary manslaughter and being sentenced to 20 years on
probation. Fuller explained that he was neighborhood friends with
Larkins, Ash, Mack, and Sherry and spent a lot of time at Larkins’s
house on Ginger Court. Fuller testified that, shortly after 9:00 p.m.
on August 3, 2016, he found out from Sherry that Thompson, who
was part of their friend group, had been shot and taken to the
hospital. Fuller also learned that Thompson had been hanging out
at Larkins’s house with Sherry, Larkins, Mack, and some other
people when the shooting occurred. According to Fuller, Sherry told
him that, after the shooting, Thompson’s shooter ran from Larkins’s
house and was picked up by a vehicle, and Larkins later discovered
that the shooter had fled to an address on Hadlock Street. Around
midnight on August 3, Sherry and Ash drove to that location, and
when they arrived, Sherry saw the vehicle in which the shooter had
fled and shot at the car but did not hit anyone. The shooter’s vehicle
then sped away from the area.
9 Fuller testified that he met up with Larkins, Ash, Mack, and
Sherry at a mutual friend’s house during the early morning hours of
August 4, and the group reached a “collective agreement” to go back
to the Hadlock Street neighborhood to find the shooter, agreeing
that “if [they] saw some people out there,” they “were going to shoot
them.” Fuller testified that the group traveled in tandem to the area
around the intersection of Hadlock Street and Leslie Avenue, where
they believed the shooter would be. Sherry drove his Impala with
Mack as a passenger, and Ash drove his car—a “gold or tan” “[f]our-
door sedan”—with Fuller and Larkins as passengers. Fuller testified
that everyone in the group was armed. Fuller had two guns—“a
Desert Eagle 44-magnum and a Taurus 40”—Sherry and Mack had
a “rifle and another pistol”; and Larkins had what “looked like an
assault rifle … but it shot 45 [caliber] rounds.” Fuller could not recall
what kind of weapon Ash had. When the group arrived in the
neighborhood, they “drove around” and then parked near the corner
of Leslie Avenue and Hadlock Street, remaining in their cars.
Shortly thereafter, the group saw a car—a “darker in color … 4-door
10 sedan”—heading towards them, coming from the direction of the
house where they believed the shooter to be. According to Fuller, he
and Sherry were communicating continuously by phone, and when
they saw the car heading towards them, Sherry said, “here they
come, here they come.” Fuller said that he, Larkins, Mack, and
Sherry got out of the cars—armed—and Larkins, Mack, and Sherry
started shooting. Fuller attempted to shoot, but his guns
“malfunctioned.” Fuller testified that he did not how many shots
were fired, but it “had to be over 20.” Immediately after the shooting,
Fuller saw the car they had been shooting at “swerve[] off” and
“c[o]me to a stop” on Leslie Avenue. The group got back into their
cars, and as they drove away, Fuller saw “straight clear into the car”
and observed “a female slumped over in the car.”
Fuller testified that, shortly after leaving the scene, he realized
he had dropped his cell phone, but he did not know when or where.
Later that morning, Jones told Fuller that the Atlanta Police
Department had his cell phone, and when Fuller was interviewed by
detectives in February 2017, he initially claimed he had lost the
11 phone about a week prior to the shooting.
Officers determined during their investigation that Larkins
went by the nickname “Quicksand,” which—as noted above—was
the subscriber name associated with one of the cell phones
communicating with Fuller during the pertinent timeframe, and the
subscriber address for that cell phone was Larkins’s address on
Ginger Court.
Atlanta Police Detective Kevin Leonpacher, who was tendered
as an expert at trial in the field of “historical cell phone data,” “cell
tower analysis,” and “phone data analysis,” testified that he received
phone records from the cellular service providers for the cell phones
of Larkins, Fuller, Ash, Mack, and Sherry pursuant to a search
warrant. Detective Leonpacher testified that he used those cell
phone records to analyze the cell phone data for Larkins’ and his co-
defendants’ cell phones to “plot activity” and determine the location
of those cell phones during the pertinent timeframe from the
evening of August 3 to the late morning hours of August 4, 2016.
According to Detective Leonpacher, the “points of interest” in this
12 case were a location in Riverdale close to Larkins’s house and an
area around the intersection of Hadlock Street and Leslie Avenue.
With respect to Larkins’s cell phone, Detective Leonpacher
determined that, based on his review of cell phone records, cell
phone data, cell networks, and cell tower information, a “device
associated with Larkins’s phone number was showing activity in the
area generally around Riverdale” at 4:58 a.m. on August 4, 2016.”
And, between 5:19 a.m. and 5:38 a.m. on August 4, Larkins’s cell
phone “was showing activity in an area also consistent with the
same general geographic area that includes Hadlock Street” and
Leslie Avenue. Detective Leonpacher further determined that,
based upon his expert analysis of the cell phone records for Larkins’s
and his co-defendants’ cell phones, these “five devices” “exhibited a
pattern of communication with respective cell networks” that was
“consistent with movement from the area of Riverdale at roughly
4:50 in the morning [on August 4] up to the area of Hadlock Street
… at roughly 5:20 through 5:40.”
13 1. In his first enumeration of error, Larkins contends that the
evidence presented at trial was insufficient to support Larkins’s
convictions because the State failed to adequately corroborate the
testimony of “confessed accomplice” Fuller under OCGA § 24-14-8.
We disagree.
OCGA § 24-14-8 provides, in pertinent part, that
[t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including … felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.
We have interpreted this statute to mean that, “where the only
witness implicating the defendant is an accomplice, testimony by the
accomplice must be corroborated by other evidence implicating the
defendant.” Bowdery v. State, 321 Ga. 890, 896 (2025) (cleaned up).
“Corroborating evidence must either directly connect the defendant
with the crime or justify an inference that he is guilty, and must
corroborate both the identity of the defendant and the fact of his
participation in the crime.” Id. (quotation marks omitted). And we
14 have said that “[s]ufficient corroborating evidence may be
circumstantial, slight, and need not be of itself sufficient to warrant
a conviction of the crime charged.” Head v. State, 316 Ga. 406, 411
(2023). “Nor must the corroborating evidence match the testimony
of the accomplice in every detail.” Bowdery, 321 Ga. at 896 (cleaned
up). “The sufficiency of corroboration is a matter for the jury to
decide, and in considering sufficiency, we must consider all of the
evidence that was admitted by the trial court, regardless of whether
that evidence was admitted erroneously.” Head, 316 Ga. at 411.
With these principles in mind, we now consider whether sufficient
corroborating evidence was presented to support a finding that
Larkins “committed the crimes of which he was convicted.” Bowdery,
321 Ga. at 896 (cleaned up).
Although the majority of the evidence implicating Larkins
came from his accomplice, Fuller, multiple pieces of evidence—
including cell phone evidence, ballistics evidence, and eyewitness
testimony—provided at least slight corroboration of Fuller’s
testimony identifying Larkins as a participant in the crimes.
15 Here, the evidence showed that around 5:00 a.m. on August 4,
2016, a “device associated with Larkins’s phone number” showed
activity and “exhibited a pattern of communication with respective
cell networks” “in the area generally around Riverdale.” And,
between 5:19 a.m. and 5:38 a.m. on August 4, Larkins’s cell phone
showed activity and communicated with cell networks “in an area …
consistent with the same general geographic area that includes
Hadlock Street” and Leslie Avenue, where Smith’s shooting
occurred.
In addition, ballistics evidence presented by the State
corroborated Fuller’s testimony regarding Larkins’s involvement in
the crime. Fuller testified that, on the morning of Smith’s shooting,
Larkins was armed with a firearm that “looked like an assault rifle
… but it shot 45 [caliber] rounds.” Among the ballistics evidence
collected at the scene were eight .45-caliber shell casings, which the
State’s firearms expert determined were all fired from the same
firearm. Additionally, while Slaughter—one of the eyewitnesses—
could not positively identify Larkins in a photographic lineup,
16 Slaughter testified that it was dark when he witnessed the shooting,
and his description of the hairstyle worn by one of the shooters was
consistent with how Larkins wore his hair—i.e., in “dreads”—as
demonstrated by the selfie photograph posted to Larkins’s
Instagram account. Finally, the jury was properly instructed on the
requirement that an accomplice’s testimony be corroborated, and
having received this instruction, the jury was the proper arbiter of
the weight afforded to this other evidence. See Head, 316 Ga. at 413.
Therefore, while the corroborating evidence in this case was
not overwhelming and may not have individually corroborated every
detail of Fuller’s testimony, we conclude that, taken together, the
evidence authorized the jury to conclude that the accomplice
testimony was corroborated. See Bowdery, 321 Ga. at 898
(concluding that cell phone records and testimony about the motive
for the shooting sufficiently corroborated the accomplice’s testimony
identifying the defendant as a participant in the crimes) (quotation
marks omitted); Head, 316 Ga. at 415 (concluding that evidence of
the defendant’s communications with his co-defendants before and
17 after the crimes implicated him in the shooting and was sufficient to
corroborate the accomplice testimony about the defendant’s
involvement in the charged crimes); Poole v. State, 312 Ga. 515, 521–
23 (2021) (concluding that physical evidence from the crime scene, a
witness’s description of the shooting, and cell phone data showing
the defendant and his co-defendants communicating during time
span and in area of the shooting was sufficient to corroborate
accomplice testimony and sufficient to support the defendants’
convictions). And, though Larkins argues that this evidence “shows
only that a phone associated” with him “traveled to the area where
the murder occurred at the time it occurred,” we conclude that there
was enough evidence to corroborate Fuller’s statements, and that
the evidence as a whole—i.e., Fuller’s testimony combined with the
cell phone evidence, ballistics evidence, and eyewitness testimony—
was constitutionally sufficient to enable a rational trier of fact to
conclude beyond a reasonable doubt that Larkins was guilty of the
crimes of which he was convicted. See Head, 316 Ga. at 412. As such,
this claim fails.
18 2. Larkins next contends that the trial court committed plain
error by giving the jury a misleading and erroneous instruction in
which the trial court advised the jury that they could only consider
a testifying co-defendant’s out-of-court statement against that same
co-defendant. The specific jury instruction Larkins challenges on
appeal is as follows:
Any out-of-court statement made by one of the Defendants on trial in this case after the alleged criminal act has ended may be considered only against the person who made the statement and only if you find that such statement was freely and voluntarily made. If you find that an out-of-court statement was made to the police freely and voluntarily by a Defendant on trial in this case, then you are to consider the statements only as against the particular Defendant who made it. And that would be Defendant Richard Ash in this case. A statement that Defendant Ash allegedly made while in custody has been offered for your consideration. Before you may consider this as evidence for any purpose you must determine whether the statement was voluntary, and if the statement was given in custody, whether the Defendant was properly advised of his Constitutional Rights.... The burden of proof is upon the State to establish that Defendant Ash’s statement was voluntary that is freely and willingly made. If you do not find that the statement was voluntary, you may not consider it for any purpose. If you find, however, that the statement was made while in custody and as a result of police questioning, you also must determine whether the Defendant was advised of
19 his Constitutional Rights and whether he clearly understood and knowingly gave up those rights…. The burden of proof is upon the State to establish that the warnings of all rights that I have described were given and that they were understood and knowingly given up by the Defendant. If you find, as mentioned above, that Defendant Ash’s statement was voluntary and that all of the warnings as to his Constitutional Rights were given, and that he understood the meaning of what was said and knowingly gave up those rights, then you may consider the statement as evidence. If so, then you must apply the general rules for testing the believability of witnesses and decide what weight, if any, you will give to all or any part of such evidence. If you fail to find that Defendant Ash was properly informed of those rights and that he understood and gave them up, you must disregard the statement entirely and give it no consideration in reaching your verdict....
(Emphasis supplied).
At trial, the State admitted the out-of-court statement Ash
made to law enforcement at the time of his arrest, in which Ash
indicated he did not know “any of the facts or circumstances
surrounding the charge for which he was arrested” and “didn’t know
anybody” involved in Smith’s shooting, including Larkins and
Fuller. Ash also testified on his own behalf at trial and said, among
other things, that he did not know any of his co-defendants “as far
20 as friends,” but only “through [his] little brother,” and that he was
not present when the shooting of Smith occurred.
On appeal, Larkins argues that the above-quoted jury
instruction “is legally wrong” and “misinformed the jury that they
could not use [] Ash’s out-of-court statements at all to decide
[Larkins’s] fate,” even though “this law only applies to a non-
testifying co-[d]efendant” and “Ash testified at trial.” Larkins
further argues that, because Ash testified at trial and because “[a]
prior consistent statement may be used as substantive evidence,”
Ash’s out-of-court statement could have been used “as evidence to
benefit [Larkins’s] case” since that statement “included critical
impeachment” of both Fuller’s direct testimony and “the State’s
theory of the case” against Larkins, whom Ash did not inculpate in
this crime. Larkins contends that, without Ash’s prior consistent
statement, Ash’s trial testimony was weakened, thereby harming
Larkins.
Larkins concedes that he did not object to the jury instructions
at trial, so we review this claim only for plain error. See OCGA § 17-
21 8-58(b) (providing that the failure to timely object to an allegedly
improper jury instruction “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”).
This Court has established the following test for determining
whether there is plain error in jury instructions under OCGA § 17-
8-58(b):
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. If one prong of the plain error test is not satisfied, we need not address the other prongs of the test.
Campbell v. State, 320 Ga. 333, 348 (2024) (cleaned up). “Satisfying
this high standard is difficult, as it should be.” Baker v. State, 319 Ga.
22 456, 462 (2024) (quotation marks omitted). And “it is not enough in
the plain-error context for an appellant to demonstrate that a trial
court committed actual legal error in charging the jury; rather, the
jury instruction in question must have an obvious defect rather than
a merely arguable defect.” Bowdery, 321 Ga. at 898–99 (quotation
marks omitted).
We recognize that Bruton v. United States, 391 US 123 (1968),
does not apply when a co-defendant chooses to testify at trial, so the
trial court’s limiting instruction in this case was incorrect. See
Henderson v. State, 317 Ga. 66, 77 (2023) (holding that Bruton
excludes the out-of-court statement of a non-testifying co-defendant
when that statement is used to inculpate the defendant). But, here,
even assuming that the trial court clearly and obviously erred in
advising the jury that Ash’s out-of-court statement could only be used
against him, Larkins’s plain-error claim fails “because he has not
carried his burden of showing that the erroneous instruction actually
affected his substantial rights or likely affected the outcome of his
trial.” Holloway v. State, 320 Ga. 653, 662 (2025) (quotation marks
23 omitted). See also Johnson v. State, 321 Ga. 511, 520 (2025)
(concluding that, even if “the trial court made a clear or obvious
error by failing to charge” the jury on the State’s burden of proof, the
appellant failed to demonstrate plain error because he failed to show
that “any such error probably affected the outcome of the trial”).
As an initial matter, even if the jury believed—based on the
trial court’s above-quoted instruction—that it could not use Ash’s
exculpatory out-of-court statement to impeach Fuller or the State’s
theory of the case against Larkins, nothing in the trial court’s
instruction prevented the jury from using Ash’s trial testimony for
that purpose. And, to that end, while the trial court may have given
an erroneous instruction on the use of a testifying co-defendant’s
out-of-court statement, the trial court properly instructed the jury on
impeachment, witness credibility, and pretrial statements by
witnesses, including Ash, charging the jury that
[t]o impeach a witness is to show that the witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified.... In determining the credibility of any witness whose credibility has been attacked as I have described above
24 and any testimony by that witness, you may consider, where applicable, evidence offered to support the credibility or believability of any such witness. Your assessment of a trial witness’s credibility may be [a]ffected by comparing or contrasting that testimony to statements or testimony of the same witness before the trial started. It is for you alone to determine whether there’s a reasonable explanation for any inconsistency in any witness’s pretrial statements and testimony when compared to the same witness’s trial testimony. As with all issues of witness credibility, you as the Jury must apply your common sense and reason to decide what testimony you believe or do not believe.
Additionally, after instructing the jury that the testimony of a
single witness, if believed, is generally sufficient to establish a fact,
the trial court also properly charged the jury regarding the need for
accomplice corroboration and what constituted the requisite
corroboration, charging that
[o]ne exception to the single witness rule is where the witness is an accomplice. The testimony of the accomplice alone is not sufficient to warrant a conviction. The accomplice’s testimony must be supported by other evidence of some type and that evidence must be such as would lead to the inference of the guilt of the accused independent of the testimony of the accomplice. It is not required that the supporting evidence be sufficient to warrant a conviction or that the testimony of the accomplice be supported in every material particular. The supporting evidence must be more than that a crime was
25 actually committed by someone. It must be sufficient to connect the accused with a criminal act and must be more than sufficient to merely cast upon the accused a grave suspicion of guilt. Slight evidence from another source that connects the accused with the commission of the alleged crime intends to show participation in it may be sufficient supporting evidence of the testimony of an accomplice. In order to convict[,] that evidence[,] when considered with all of the other evidence in this case[,] must be sufficient to satisfy you beyond a reasonable doubt that the accused is guilty. The sufficiency of supporting evidence of an accomplice is a matter solely for you the Jury to determine. The testimony of one accomplice may be supported by the testimony of another accomplice. Whether or not the testimony of one accomplice does in fact support the testimony of another accomplice is a matter solely for you to determine.
As we have often explained, “[w]hen we are presented with a
claim that a particular instruction is misleading, we do not evaluate
jury charges in isolation, but rather consider them as a whole to
determine whether there is a reasonable likelihood the jury
improperly applied a challenged instruction.” Walker v. State, 311
Ga. 719, 724 (2021) (cleaned up). See also Johnson v. State, 312 Ga.
481, 490 (2021) (explaining that, when we evaluate whether the trial
court plainly erred in giving a jury instruction, we consider the jury
instructions as a whole). “When viewing the instructions as a whole,”
26 we conclude that “any prejudice stemming from the trial court’s”
erroneous instruction to the jury about the use of a testifying co-
defendant’s out-of-court statement “was minimized by these other
instructions,” Holloway, 320 Ga. at 663, because they properly
instructed the jury on the law to be applied in this case. See Adkins
v. State, 314 Ga. 477, 483 (2022) (holding that the trial court did not
plainly err by failing to instruct the jury on a requested charge
because the charges as a whole demonstrated that “the concept was
covered by other jury instructions”); Johnson, 312 Ga. at 490–91
(holding that, after considering the jury instructions as a whole, the
appellant failed to show that the trial court’s omission of a portion of
the pattern charge amounted to plain error because the trial court’s
other instructions adequately instructed the jury on what the State
was required to prove and the elements of the charged crimes).
Moreover, Larkins’s contention that Ash’s out-of-court
statement would have benefited Larkins’s case and strengthened
Ash’s trial testimony is without merit because, although some of
Ash’s trial testimony was consistent with his out-of-court
27 statement—namely, that Ash did not really know his co-defendants
and was not present for the shooting—much of it was not. On direct
examination at trial, Ash stated for the first time that, on the night
of August 3, he was at “the weed man’s house”; Fuller was also there;
Fuller agreed to give Ash a ride to the store when they left the house;
before reaching the store, Fuller ended up dropping off Ash
somewhere in Riverdale; and Ash accidentally dropped his cell
phone in Fuller’s car, which Ash’s little brother returned to him late
the next morning. Ash also conceded on cross-examination that
many of the details he testified to at trial were omitted or different
from the ones he gave to law enforcement during his custodial
interview, and Ash admitted that, as it pertains to Larkins, Ash had
a “phone number in [his cell] phone for Quicksand” and that the
“weed man’s house” he visited on the night of August 3 was the
house the State identified at trial as Larkins’s residence.
Additionally, as noted in Division 1, the other evidence against
Larkins—including cell phone evidence, ballistics evidence,
eyewitness testimony, and Fuller’s testimony—was strong and
28 authorized the jury to conclude that Larkins was guilty of the crimes
of which he was convicted. See Head, 316 Ga. at 412.
Accordingly, after viewing the trial court’s instructions as a
whole and the strong evidence of Larkins’s guilt, “we cannot say that
the challenged instructional error likely affected the outcome of his
trial.” Priester v. State, 316 Ga. 133, 140 (2023). See also Jones v.
State, 302 Ga. 892, 897–98 (2018) (concluding that any error in the
jury instructions was harmless, given the court’s instruction as a
whole and the very strong evidence of defendant’s guilt).
3. In his third enumeration of error, Larkins claims that his trial
counsel was constitutionally ineffective by failing to object when the
trial judge, in responding to a jury question, purportedly commented
on the evidence in violation of OCGA § 17-8-57(a)(1) (“It is error for
any judge, during any phase of any criminal case, to express or
intimate to the jury the judge’s opinion as to whether a fact at issue
has or has not been proved or as to the guilt of the accused.”). For
the reasons that follow, this claim fails under the standard set forth
in Strickland v. Washington, 466 US 668, 687 (1984).
29 “To prevail on a claim of ineffective assistance of counsel, a
defendant generally must show that counsel’s performance was
deficient and that the deficient performance resulted in prejudice to
the defendant.” Ealey v. State, 322 Ga. 509, 522 (2025) (citing Moss
v. State, 311 Ga. 123, 126 (2021)). “In reviewing either component of
the inquiry, all factual findings by the trial court will be affirmed
unless clearly erroneous.” Id. (quotation marks omitted).
We have said that, “[t]o prove deficient performance, a
defendant must show that his counsel performed in an objectively
unreasonable way considering all the circumstances and in light of
prevailing professional norms.” Nesbit v. State, 321 Ga. 240, 246–47
(2025).
The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case, and decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.
Id. at 247 (cleaned up). And, to prove prejudice, “a defendant must
establish a reasonable probability that, in the absence of counsel’s
30 deficient performance, the result of the trial would have been
different.” Ealey, 322 Ga. at 522. “If an appellant fails to meet his or
her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong.” Id.
(quotation marks omitted).
The record reflects that, during deliberations, the jury
presented a note to the trial court, stating: “Can we have the phone
records? Can we have [G]oogle location records?” The note was
signed by “Juror 44.” The jurors were brought into the courtroom,
and the trial court inquired first about the jurors’ request for the
Google location records, to which Juror 44 responded, “At this time
we have what we need. We can make another request tomorrow if
we need that.” The following exchange then occurred:
TRIAL JUDGE: So I’ll then treat the Google record’s request, the location record’s requests as satisfied. You still have requested phone records, and the Court’s interpretation of the note was that you wanted phone records, also the phone records –
JUROR 44: For those three days.
TRIAL JUDGE: For all of the Defendants?
31 JUROR 44: If that’s possible, yes.
TRIAL JUDGE: All right. So that obviously is something that we’ll have an opportunity to work on this evening and we will ensure those are available tomorrow morning.
Larkins’s trial counsel did not object after this exchange occurred.
At the motion-for-new-trial hearing, Larkins called his trial
counsel to testify, and during direct examination, Larkins’s
appellate counsel asked trial counsel if “there was a strategic reason
not to object” when the trial court commented to the deliberating
jury “that they would be receiving the telephone records for the
relevant period of time … of all the defendants.” Larkins’s trial
counsel explained that he did not interpret the trial court’s question
as a comment on the evidence, stating:
[O]ur defense had always been that Mr. Larkins simply wasn’t involved. Secondarily, I believe that there were phone records introduced that were perhaps attributable to Mr. Larkins. And there was testimony of a co-defendant that was the main evidence in the case against Mr. Larkins.
Those phone records, whatever phone records were introduced into evidence, were part of the record. My understanding is that the jury asked to review the phone
32 records that were introduced. And they asked for the phone records.
And since there were separate defendants on trial, and the phone records were introduced for, I believe, all of the defendants on trial, the question from jurors was: Can we look at the phone records. And I think the Court’s statement was: For everybody? And she … may have used the words, defendants. But my impression and my understanding of the Court’s response was meaning for all of the people on trial or specific defendants or specific exhibits. And I think the jurors responded, for everybody.
I didn’t — I didn’t see that as a comment on the evidence. I don’t see that as a comment on the evidence now. I did not object because I did not believe that was a comment on the evidence. That was simply a response to a request from the jurors to review the evidence already admitted in the case.
On appeal, Larkins contends that his trial counsel performed
deficiently by failing to object to the trial judge’s clarifying question
about the cell phone records—i.e., “For all of the Defendants?”—
because, while evidence was presented from which the jury could
conclude that Larkins’s cell phone records were tendered into
evidence under the name “Quicksand,” the issue of whether it was
actually Larkins’s cell phone was ultimately one for the jury to
decide, and thus, the trial court’s question was an improper
33 comment on the evidence under OCGA § 17-8-57(a)(1). Larkins
further contends that his trial counsel’s deficient performance
prejudiced the outcome of the case because the evidence of Larkins’s
guilt was scant and this critical piece of evidence linked Larkins to
the general area of the crime scene. Because we conclude that trial
counsel’s interpretation of the trial court’s response to the jury and
his decision not to object to that response were not “patently
unreasonable” under the circumstances, Nesbit, 321 Ga. at 247, we
see no deficiency in trial counsel’s performance and need not reach
prejudice. See Ealey, 322 Ga. at 522.
Again, in assessing an ineffective-assistance-of-counsel claim,
“our inquiry is focused on the objective reasonableness of counsel’s
performance,” State v. Tedder, 305 Ga. 577, 584 (2019) (cleaned up),
which “is examined from counsel’s perspective at the time of trial
and under the particular circumstances of the case.” Nesbit, 321 Ga.
at 247. And “[d]ecisions regarding trial tactics and strategy may
form the basis for an ineffectiveness claim only if they were so
patently unreasonable that no competent attorney would have
34 followed such a course.” Clark v. State, 321 Ga. 732, 738 (2025).
Larkins also “bears the burden of showing that his trial counsel’s
actions were patently unreasonable,” Nesbit, 321 Ga. at 249
(quotation marks omitted), and he has not done so here.
Larkins concedes on appeal that the State connected the
“Quicksand phone number” to Larkins, and that the jury could have
concluded, based on the evidence, that “[Larkins’s] phone records
were tendered into evidence under the name ‘Quicksand.’” Given
that Larkins was one of three defendants on trial in this case and
that cell phone records connected to “Quicksand”—who the State
established to be Larkins—were admitted into evidence at trial, we
cannot say that trial counsel’s interpretation of the trial court’s
response to the jury—i.e., as “simply a response to a request from
the jurors to review the evidence already admitted in the case” that
the State contended was linked to the defendants—“was so patently
unreasonable” that no competent attorney in that position would
have interpreted the trial court’s response the same way. Nesbit, 321
Ga. at 247. Nor can we say that trial counsel’s decision not to object
35 to the trial court’s response on this basis was deficient. See Copney
v. State, 322 Ga. 794, 800 (2025) (holding that, “[b]ecause
a reasonable attorney in trial counsel’s position could have made a
strategic decision not to object,” the appellant “has not met his
burden of demonstrating that his trial counsel was deficient”). For
these reasons, this ineffective assistance of counsel claim fails.
4. Larkins next contends that the trial court abused its
discretion by admitting statements co-defendant Sherry made to
Fuller about Thompson’s shooting under the co-conspirator
exception set forth in Rule 801(d)(2)(E). See OCGA § 24-8-
801(d)(2)(E) (providing that “[a] statement by a coconspirator of a
party during and in furtherance of the conspiracy” shall “not be
excluded by the hearsay rule”). Larkins argues that Sherry’s
statements were not admissible as the statement of a co-conspirator
because they were “not made during the purported conspiracy to
murder the alleged victim” since “the conspiracy did not yet exist,”
citing United States v. Tombrello, 666 F2d 485, 490 (11th Cir. 1982).
This contention also fails.
36 At trial, Fuller testified that, on the night of August 3, 2016, he
learned details about Thompson’s shooting from Sherry. When
Fuller started to testify about what Sherry told him that night,
Mack’s trial counsel objected on hearsay grounds, prompting a
bench conference. The State argued that the statements were
admissible under OCGA § 24-8-801(d)(2)(E) as the statements of a
co-conspirator during the pendency of a conspiracy. Larkins and his
co-defendants argued that the statements were not admissible
under OCGA § 24-8-801(d)(2)(E) because they were a “mere
recitation of past events” and “not in the course and in furtherance
of a conspiracy.” The trial court overruled the objection and allowed
the testimony to be admitted. Fuller then testified that Sherry told
him Thompson had been shot inside Larkins’s house on the night of
August 3, and after the shooter fled and Larkins learned of the
shooter’s whereabouts, Sherry and others went to that location to
seek out the shooter.
“To admit evidence under Rule 801(d)(2)(E), the State is
required to show by a preponderance of the evidence that a
37 conspiracy existed, the conspiracy included the declarant and the
defendant against whom the statement is offered, and the
statement was made during the course and in furtherance of the
conspiracy.” Kemp v. State, 303 Ga. 385, 392 (2018) (quotation
marks omitted). This Court applies “a liberal standard in
determining whether a statement is made in furtherance of a
conspiracy, and statements that further the interests of the
conspiracy in some way meet this standard.” Mosley v. State, 307
Ga. 711, 716 (2020) (quotation marks omitted).
We conclude that, here, even if Fuller’s testimony relaying
what Sherry said about the shooting of Thompson relied upon
inadmissible hearsay because the conspiracy to retaliate against
Thompson’s shooter did not yet exist at the time Sherry made these
statements to Fuller, “any error in admitting that testimony was
harmless under the nonconstitutional harmless error standard.”
Ealey, 322 Ga. at 521 (concluding that the admission of an officer’s
testimony relying upon inadmissible hearsay was harmless given
the other evidence of the defendant’s guilt). “The test for
38 determining nonconstitutional harmless error is whether it is highly
probable that the error did not contribute to the verdict.” Kingdom
v. State, 321 Ga. 363, 369 (2025). See also Head v. State, 316 Ga.
406, 416 (2023) (“A trial court’s error in allowing hearsay testimony
is harmless if is highly probable that the alleged error did not
contribute to the verdict.”). And, in determining whether the error
contributed to the verdict, “we review the record de novo and weigh
the evidence as we would expect reasonable jurors to have done.”
Ealey, 322 Ga. at 521 (quotation marks omitted). “Further, the
erroneous admission of hearsay is harmless where substantial,
cumulative, legally admissible evidence of the same fact is
introduced.” Head, 316 Ga. at 417 (quotation marks omitted).
Viewing the record in this way, the evidence properly admitted
at Larkins’s trial showed that (1) Larkins associated with and/or
was friends with Thompson, Fuller, Ash, Mack, and Sherry; (2) on
the night of August 3, 2016, Thompson was shot at Larkins’s
residence as established by the testimony of police officers who
responded to the scene and to the hospital where Thompson was
39 being treated for his injuries; (3) Fuller met with Larkins, Ash,
Mack, and Sherry during the early morning hours of August 4 and
reached an agreement—of which Fuller was a part—to go to the
Hadlock Street area where Thompson’s shooter might be located and
to shoot whoever they saw there; (4) Fuller identified Larkins as one
of the shooters; (5) an eyewitness saw someone with a similar
hairstyle and similar in appearance to Larkins at the scene; (6) shell
casings consistent with the type of firearm Larkins carried were
collected at the scene; and (7) Larkins’s cell phone records and cell
site location information placed Larkins’s cell phone at the crime
scene when Smith was murdered. Furthermore, Sherry’s statements
at issue were limited and largely cumulative of other evidence
admitted at trial, including the testimony of the police officers who
initially investigated Thompson’s shooting. See Evans v. State, 921
SE2d 310, 315 (2025) (concluding that, any error in the admission of
inadmissible hearsay was harmless where it was “cumulative of
other properly admitted evidence”).
Given this substantial evidence of Larkins’s guilt and the fact
40 that Fuller’s testimony relying on what Sherry told him prior to
Smith’s shooting was cumulative of other properly-admitted
evidence at trial, we conclude—after “weighing this evidence as we
would expect reasonable jurors to have done”—that it is highly
probable that any error on the part of the trial court in admitting
Fuller’s testimony was harmless and did not contribute to the guilty
verdicts. Head, 316 Ga. at 418 (cleaned up). See also Ealey, 322 Ga.
at 521; Kingdom, 321 Ga. at 369 (concluding that any error in
admitting a detective’s testimony relying on hearsay was harmless
given the other evidence pointing to the defendant’s guilt).
Therefore, Larkins’s hearsay claim fails.
5. In his final enumeration of error, Larkins contends that the
law permitting prosecutors to make a non-substantive initial closing
argument is wrongly decided and that Larkins was prejudiced by
the non-substantive initial closing argument made by the State in
this case. Specifically, Larkins asserts that, during the State’s initial
closing argument, the prosecutor briefly summarized the general
facts of the case, without specifically referencing Larkins, leaving
41 Larkins with nothing to rebut. And, while Larkins concedes that
Georgia courts have the discretion to allow prosecutors to waive
their initial closing argument, he argues that this practice
undermines the fairness of trial proceedings and directly contradicts
the language of OCGA § 17-8-71. 6 We see no merit to this claim.
The record reflects that, prior to closing arguments, the trial
court instructed the jury as follows:
Because the State has the burden of proof, the State has the opportunity to open and/or close at its election. What that means is that the State may use all of its time and proceed first or the State may reserve all [of] its time [and] proceed last or the State may split its time and proceed both first and last.
The State then advised the trial court that it would “open and close,”
and the State proceeded with its closing argument. During the
initial portion of the State’s closing argument, the prosecutor
addressed the circumstances surrounding Smith’s shooting—
including what she was doing prior to her death; the lack of
————————————————————— 6 OCGA § 17-8-71 provides: “After the evidence is closed on both sides,
the prosecuting attorney shall open and conclude the argument to the jury. The defendant shall be entitled to make a closing argument prior to the concluding argument of the prosecuting attorney.” 42 eyewitnesses; the fact that Fuller’s dropping of his phone led to law
enforcement’s awareness that Larkins and his co-defendants were
potentially involved in the shooting; the charges in the indictment;
the State’s burden of proof; the jurors’ duty in light of that burden;
the meaning of “reasonable doubt”; the jury’s obligations during
deliberation; the guilt of “the defendants”; and the applicable law.
When the prosecutor concluded her initial closing argument,
Larkins’s trial counsel objected, arguing that the State did not
“argu[e] the facts in closing argument.” Larkins’s trial counsel then
stated:
I understand that Georgia has traditionally allowed the State to waive opening, reserve closing or split the argument, however, that’s not the prevailing view in any state in the Union, it’s not the prevailing view in Federal Court, and since we have gone to the Federal Rules of Evidence, sooner or later we’re going to come to our senses and make a -- require the State to make a full and fair opening argument so that the Defense has an opportunity to rebut. So I’d make that argument on the record.
The trial court overruled the objection.
The law concerning the State’s options with respect to closing
arguments—i.e., the choice to either waive opening argument or to
43 conduct both an opening and concluding argument as permitted by
OCGA § 17-8-71—is well settled, and we see no reason to revisit our
long-standing precedent in this case. See Hyden v. State, 308 Ga.
218, 223 (2020) (concluding that, when asked to reconsider our
precedent regarding the State’s ability to waive its initial closing
argument, there was “no compelling reason to do so”).7 See also Petty
v. State, 283 Ga. 268, 270 (2008) (noting that “we have long held that
the trial court, in its discretion, may permit a waiver of the initial
closing argument”). Moreover, in this case, the State elected to open
and conclude, and despite Larkins’s argument to the contrary, the
record reflects that the State’s initial closing argument was
substantive. That initial closing argument addressed the
circumstances surrounding the shooting in this case; the evidence or
lack thereof; the State’s burden of proof; the jurors’ duties and
obligations; the charges in the indictment; and the law applicable to
those charges, among other things.
————————————————————— 7 Even though Hyden was decided when the old evidence code was in
effect, OCGA § 17-8-71 is not part of the evidence code and was not impacted by the passage of the new evidence code. 44 Therefore, given that the law permits the State to waive
opening argument, see OCGA § 17-8-71, which the State actually
elected not to do here, Larkins’s final claim also fails. See Lewis v.
State, 283 Ga. 191, 194–95 (2008) (concluding that OCGA § 17-8-71
permits the waiver of initial closing arguments by the State). See
also Petty, 283 Ga. at 270.
Judgment affirmed. All the Justices concur, except Warren, P. J., not participating.