Malique Harrington v. State

• Court: Court of Appeals of Georgia
• Decided: January 29, 2026
• Docket: A25A1628
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

January 29, 2026

In the Court of Appeals of Georgia

A25A1628. HARRINGTON v. THE STATE.

HODGES, Judge.

A jury found Malique Harrington guilty of aggravated assault (OCGA § 16-5-

21), possession of a firearm during the commission of a felony (OCGA § 16-11-106),

and tampering with evidence (OCGA § 16-10-94); it found him not guilty of malice

murder, felony murder, and two additional charges of possession of a firearm during

the commission of a felony. The trial court denied his motion for a new trial, as amended.1 He now appeals,2 arguing that the trial court erred in: (1) denying his pre-

trial motion for immunity and (2) denying his motion for new trial, because the

acquittals outlined above rendered repugnant the jury’s verdict of guilt on the

aggravated assault and possession of a firearm counts. For the reasons that follow, we

affirm.

The record shows that following the shooting death of Jerry Clark, Harrington

was indicted for the crimes catalogued above. Although Harrington acknowledged that

he shot Clark, he contended that he had done so in self defense, and, prior to trial,

moved for immunity from prosecution pursuant to OCGA § 16-3-24.2, arguing that

his shooting of Clark was justified. At the immunity hearing, Harrington testified that

Clark had bullied him in the past, and on the date at issue, pushed him, attacked him

from behind, and kicked and punched him. After the fight ended, Harrington realized

his wallet, keys, and phone were gone, but that he still had his firearm. Clark had

walked away, but Harrington pulled his gun from his pocket, cocked it, and put it back

1 The trial court also found, and the State conceded, that tampering with the evidence in the manner alleged in the indictment was a misdemeanor, rather than a felony. The trial court amended Harrington’s sentence accordingly. 2 Harrington filed a notice of appeal to the Supreme Court of Georgia, which transferred the appeal to this Court. 2 in his pocket because he wanted to get his things back but was “scared.” He then

walked over to where Clark was and asked for the return of his items, believing that

“the fight was over.” Harrington testified that his own gun was not visible, but that

Clark “pull[ed] what look[ed] like — it was a bigger gun, I assume maybe a 9-mm

from his pocket.” Harrington pulled out his own gun and shot Clark, who fell

backward, firing once into the air as he fell. Harrington fled. An eyewitness, however,

testified that she heard Harrington ask for his phone, then, as Harrington and Clark

were standing within arm’s reach of one another, Harrington shot Clark. The witness

testified that she did not see a gun in Clark’s hand or anywhere on his person at the

time Harrington shot Clark.

Harrington’s pre-trial and trial proceedings were handled by different judges.

The trial court (hereinafter, the “First Trial Court”) conducted the evidentiary

hearing on Harrington’s immunity motion. From the bench, the First Trial Court

indicated orally that it was “inclined to grant the motion[;]” after some discussion,

the First Trial Court stated: “Grant the motion. The State has the right to appeal my

decision, and they may.” The First Trial Court then directed counsel to “[p]repare

an order.” This hearing took place on July 30, 2019. Both parties’ appellate briefs aver

3 that the First Trial Court judge stepped down from the bench in April 2020, and it is

undisputed that this judge never entered a written order.

Nearly a year after the immunity hearing, a different judge (hereinafter the

“Second Trial Court”) sent a letter to counsel for Harrington and the State,

mentioning the first judge’s resignation and oral ruling, noting that the First Trial

Court had made no finding that Harrington had carried his burden by a preponderance

of the evidence and, pertinently, that the First Trial Court had never entered a written

order. The letter stated that the Second Trial Court would make the decision de novo,

upon review of the immunity hearing transcript, and invited the parties’ responses.

Harrington responded, referencing a “proposed order” that had “remained

overlooked since October 1, 2019 when it was provided to the [First Trial] Court and

to the State for review and signature[,]” and he urged the Second Trial Court to sign

this order. Harrington appended to this response a copy of the proposed order.3 The

State filed a brief in opposition, asserting that a de novo review was in order.

3 It appears from the record that some months after the immunity hearing, a superior court staff attorney e-mailed counsel for both sides asking about the proposed order, after which Harrington’s counsel submitted a proposed order. 4 The Second Trial Court issued a written order denying Harrington’s motion

for immunity, noting that it was “unable to determine” whether the First Trial

Court’s judge did not sign because of “a change of heart, a reconsideration of the

law[,] . . . or some other reason.” The Supreme Court denied Harrington’s

application for interlocutory review, after which Harrington moved, inter alia, to set

aside the Second Trial Court’s immunity order. The Second Trial Court denied that

motion. Harrington’s case then proceeded to trial, verdict, and the instant appeal.

1. We note at the outset that Harrington’s appellate brief fails to show how each

enumerated error was preserved for review, and also fails to cite to the specific page

numbers of the record or transcript that are essential to consideration of his

enumerated errors. See Court of Appeals Rules 25 (a) (5) (“At a minimum, the

appellant’s brief must include . . . [a] statement of the case that . . . identifies how each

enumerated error was preserved for review, with appropriate citations to the record.”)

(emphasis supplied), 25 (d) (1) (i) (“Each enumerated error shall be supported in the

brief by specific reference to the record or transcript. In the absence of a specific

reference, the Court will not search for and may not consider that enumeration.”)

(emphasis supplied), and 25 (d) (2) (providing manner of citation to the record).

5 “Accordingly, if we have missed something in the record or misconstrued an

argument, the responsibility rests with counsel.” (Citation and punctuation omitted.)

Demps v. State, 337 Ga. App. 657, n. 2 (788 SE2d 525) (2016).4 Further, Harrington’s

brief, in several regards, offers only conclusory statements purporting to identify

errors. These conclusory statements are unsupported by either legal argument or

citation to relevant authority, in contravention of Court of Appeals Rule 25 (d) (1).

“[M]ere conclusory statements are not the type of meaningful argument

contemplated by our rules[;] . . . [as a result, some of Harrington’s] arguments in this

regard have been abandoned by his failure to provide citation to authority or

meaningful argument and will not be addressed.” (Citation and punctuation omitted.)

Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106) (2014).

2. In a multi-part enumeration, Harrington argues that the First Trial Court’s

statement from the bench purporting to grant his immunity motion means that the

unsigned, draft written order prepared by defense counsel “was final[.]” He contends

that the oral ruling was “legally sufficient and binding,” and that, for this and other

reasons, the written order should be set aside. We disagree.

4 The State’s appellate brief likewise fails to provide citations to the record in accordance with our Rules. See Court of Appeals Rule 25 (b), (d) (2). 6 (a) It is well settled that, in general, a trial court’s oral pronouncements are not

binding, and its written order controls. As our Supreme Court has determined, an

“oral order [is] neither final nor appealable until and unless it is reduced to writing,

signed by the judge, and filed with the clerk[.]” Hill v. State, 281 Ga. 795, 798-799 (3)

(642 SE2d 64) (2007); see Titelman v. Stedman, 277 Ga. 460, 461 (591 SE2d 774)

(2003) (finding that “[w]hat the judge orally declares is no judgment until it has been

put in writing and entered as such[,]” and quoting the Appellate Practice Act, OCGA

§ 5-6-31, which provides, “[t]he filing with the clerk of a judgment, signed by the

judge, constitutes the entry of a judgment within the meaning of” the APA) (citation

and punctuation omitted). “It is elementary that an oral order is not final nor

appealable until and unless it is reduced to writing, signed by the judge, and filed with

the clerk.” (Citation and punctuation omitted.) Ballard v. State, 321 Ga. 352, 359 (5)

(914 SE2d 793) (2025); see Onyeka v. State, 374 Ga. App. 504, 508 (2) (913 SE2d 377)

(2025) (recognizing, where appellant asserted that an “orally pronounced [judgment

notwithstanding the verdict that was] never memorialized in a written order”

amounted to an acquittal, that, generally, “an oral ruling is neither final nor appealable

until and unless it is reduced to writing”). “Moreover, until an oral pronouncement

7 is memorialized, the trial judge has broad discretion to amend, alter, or completely

change his [or her] decision, and any discrepancy between the oral pronouncement

and the written ruling will be resolved in favor of the written judgment.” (Citation and

punctuation omitted.) Burns v. State, 313 Ga. 368, 375 (3), n. 4 (870 SE2d 360)

(2022).5 The Second Trial Court did not err in finding that the First Trial Court’s oral

pronouncement was not binding.

(b) Harrington also argues that the Second Trial Court erred in reviewing his

motion for immunity de novo. Here, however, although the Second Trial Court

offered to hold another hearing if the parties so requested within 10 days of the date

5 Harrington argues that a civil case, Mondy v. Magnolia Advanced Materials, 303 Ga. 764 (815 SE2d 70) (2018), provides that an oral ruling does equate to a final order. This reading is erroneous and incomplete. Mondy addressed the requirement of immediate compliance with an oral order by “the litigants” in the context of an oral contempt ruling, see id. at 774 (4) (d); yet the Mondy Court specifically recognized, in this context, that “while an oral ruling by a trial judge may require immediate compliance by the person to whom it is directed[,] . . . until an oral ruling is reduced to writing, signed by the judge, and filed by the clerk, it generally cannot be appealed.” Id. at 772 (4) (b) (emphasis supplied). As the Mondy Court clearly provided, there is a difference between the requirement of immediate compliance by a litigant, which may be orally compelled from the bench, and that litigant’s ability to appeal an order, which may not be accomplished until that order is reduced to writing. See id. at 772 (4) (b) (reiterating that until an oral pronouncement is memorialized, a trial judge has broad discretion to alter or “completely change” the decision); see also id. at 773 (4) (b) (finding that the written order “trump[s] any implications that might otherwise be drawn from the bare oral ruling” when that ruling is reviewed on appeal). 8 of its letter, nothing in the record indicates that either the State or the defense so

requested or that any hearing was held. As a result, the Second Trial Court rendered

its decision based upon a review of the transcript of the immunity hearing held before

the First Trial Court. Pretermitting whether this was error, the Second Trial Court

offered to hold another hearing and Harrington failed to seize that opportunity. It is

well settled that “a party waives his right to challenge on appeal a ruling that his own

procedure or conduct aided . . . in causing.” (Citation and punctuation omitted.)

Mantooth v. State, 303 Ga. App. 330, 336-337 (2) (693 SE2d 587) (2010) (finding that

where the trial court asked defendant’s counsel to make a proffer and counsel failed

to do so, defendant could not complain of any error).6

6 See generally Pate v. State, 364 Ga. App. 107, 108 (2), 109-111 (3) (874 SE2d 132) (2022) (finding that the defendant bears the burden at trial of showing he was entitled to immunity by a preponderance of the evidence; that on appeal, we review the evidence in the light most favorable to the trial court’s ruling, accepting its findings of fact and credibility if any evidence supports them; and affirming denial of immunity even where trial court made no factual findings). Furthermore, Harrington does not argue on appeal that the Second Trial Court erred, on the merits, in finding he had failed to show entitlement to immunity by a preponderance of the evidence. Therefore, we do not address the issue. See Pittman v. State, 318 Ga. 819, 829 (5) (b), n. 7 (901 SE2d 90) (2024) (noting that the Supreme Court would not address argument not raised on appeal).

9 (c) Harrington contends, without citation to any evidence in the record, that the

First Trial Court judge has now returned to the bench with senior status and that the

Second Trial Court’s order should be set aside so that the First Trial Court judge can

sign the original proposed order. Harrington provides no argument or citation of

authority addressing why, after the First Trial Court judge left the bench and had no

authority to sign orders,7 the Second Trial Court was barred or erred in rendering a

decision in a case that remained pending and where no written order had been entered.

This contention has been abandoned for the reasons explained in Division 1, and is

meritless for the reasons outlined in Division 2 (a).

(d) Harrington next contends, in an argument that contains no citation to the

record, that the second trial court’s denial of the immunity motion “creates the

appearance of forum shopping[.]” For the reasons outlined in Division 1, this

contention of error has been abandoned. Further, we note that because the First Trial

7 See generally Triola v. Triola, 299 Ga. 220, 221 (1) (787 SE2d 206) (2016) (“It is beyond all reasonable dispute that [the judge] had no authority to sign the . . . order after the effective date of his resignation[.]”) (collecting cases); further, as the Second Trial Court found, once the judge of the First Trial Court judge returned with senior status, the chief judge had not sought her assistance with Harrington’s case because no judge had been disqualified or otherwise could not serve. See OCGA § 15-1-9.1 (b) (2). 10 Court never rendered an appealable judgment and the Second Trial Court’s written

order is valid and binding for the reasons explained in Division (2) (a), this contention

could not succeed in any event.

3. Harrington argues that the jury acquitted him of malice murder and felony

murder and the related charges of possession of a firearm during the commission of

a felony because it found he was justified in shooting Clark. According to Harrington,

the jury’s finding that he is guilty of aggravated assault and a related count of

possession of a firearm during the commission of a felony is repugnant to his acquittals

on the other charges. As a result, he argues that his convictions must be “reverse[d]

and set aside.” We disagree.

Repugnant verdicts “occur when, in order to find the defendant not guilty on

one count and guilty on another, the jury must make affirmative findings shown on the

record that cannot logically or legally exist at the same time. Where a jury renders

repugnant verdicts, both verdicts must be vacated and a new trial ordered[.]”

(Emphasis in original and supplied.) McElrath v. State, 308 Ga. 104, 111 (2) (c) (839

SE2d 573) (2020); accord State v. Owens, 312 Ga. 212, 216 (1) (b) (862 SE2d 125)

(2021). The recognition of repugnant verdicts is an exception to Georgia’s general

11 rule that inconsistent verdicts, “occur[ing] when a jury in a criminal case renders

seemingly incompatible verdicts of guilty on one charge and not guilty on another[, .

. . no longer] require reversal.” (Citation and punctuation omitted.) Presley v. State,

358 Ga. App. 277, 280-281 (1) (855 SE2d 30) (2021). Georgia abolished the

inconsistent verdict rule because if “truly inconsistent verdicts have been reached, the

most that can be said is that the verdict shows that either in the acquittal or the

conviction the jury did not speak their real conclusions, but that does not show that

they were not convinced of the defendant’s guilt[.]” (Citation and punctuation

omitted.) Id. More specifically,

it is not generally within the court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. . . . [A]ppellate courts cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense.

(Citations and punctuation omitted). McElrath, 308 Ga. at 109 (2) (a).

In arguing that the verdicts at issue here are “repugnant,” Harrington asserts

that the repugnancy exception to the abolishment of the inconsistent verdict rule

applies. The Supreme Court first recognized this exception in Turner v. State, 283 Ga.

12 17, 20-21 (2) (655 SE2d 589) (2008), finding that it applies only “when[,] instead of

being left to speculate about the unknown motivations of the jury[,] the appellate

record makes transparent the jury’s reasoning why it found the defendant not guilty

of one of the charges, [such that] there is no speculation[.]” (citation and punctuation

omitted). In Turner, the defendant was accused of a shooting and charged with malice

murder, felony murder (aggravated assault), and aggravated assault. Id. at 17. He

admitted to shooting the victim, but argued the shooting was justified. Id. The jury

found him guilty of felony murder and aggravated assault, expressly finding pursuant

to the jury form, which contained pre-printed language related to lack of justification,

see id. at 17, n. 2, that the shooting was not justified; however, the jury also found

Turner not guilty of malice murder, “expressly finding pursuant to the jury verdict

form supplied to it that [Turner] had been justified in his action.” (Emphasis supplied.)

Id. at 17. Because the jury’s contradictory findings were explicitly revealed on the

verdict form, the Supreme Court held that “there is no speculation” regarding the

basis of the inconsistent verdicts, and found that the trial court erred in entering

judgment on the guilty verdicts of felony murder and aggravated assault. Id. at 21 (2).

13 Harrington argues that Turner applies in his case, but fails to provide any

citation to the record for the jury verdict form. The record, however, shows that

Harrington’s verdict form contained no language regarding justification, as his counsel

acknowledged at the hearing on the motion for new trial, saying, “I have to concede

we don’t have the facts of Turner because we don’t have the special verdict form[.]”

As stated previously, Turner’s reasoning applies only if the appellate record clearly

shows why the jury found found the defendant not guilty of some of the charges. 283

Ga. at 20-21 (2). “[T]here is no such verdict form in this case, and this Court will not

engage in speculation or unauthorized inquiry regarding the jury’s deliberations.”

(Citation and punctuation omitted.) Presley, 358 Ga. App. at 283 (2). We have also

rejected factors other than the jury form as offering sufficient insight into the jury’s

rationale to find a verdict repugnant. In Taylor v. State, 327 Ga. App. 288 (758 SE2d

629) (2014), the defendant appealed his convictions for aggravated assault and

possession of a firearm during the commission of a felony, arguing that these verdicts

were inconsistent with not guilty verdicts for malice murder and felony murder. This

Court found that, even where the trial court instructed the jury extensively on

justification and where, during deliberations, the jury sent a note to the judge asking,

14 “. . .’if we believe it’s self defense, does that negate the charge of felony murder?’”

this “did not expose the jury’s rationale for acquittal and its inconsistency with the

guilty verdicts.” Id. at 290 (2). Like the Taylor Court, we “will not engage in

speculation or unauthorized inquiry regarding [the jury’s] deliberations.” (Citation

and punctuation omitted.) Id. The trial court did not err in denying the motion for

new trial on this ground.

Judgment affirmed. McFadden, P. J., and Pipkin, J., concur.