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 17, 2026
S25A1429. MURPHY v. THE STATE.
LAND, Justice.
Dachavous Murphy appeals his convictions for felony murder
and other crimes stemming from the shooting death of Ashley Brown
at a nightclub in Augusta. 1 On appeal, Murphy argues that the trial
1 The crimes took place on September 15, 2011. On December 13, 2011,
a grand jury indicted Murphy for felony murder (Count 1), possession of a firearm during the commission of a crime (Count 2), criminal damage to property in the first degree (Count 3), and aggravated assault (Count 4). After trial, on August 7, 2014, a jury returned a verdict of guilty on all four counts of the indictment. Murphy was sentenced to life in prison without parole for Count 1; five years in prison for Count 2, to be served consecutively to Count 1; ten years in prison for Count 3, to be served consecutively to Count 2; and twenty years in prison for Count 4, to be served consecutively to Count 1. The charges against Murphy’s codefendant, Robert Wright, were dismissed based on Wright’s guilty plea to a reindictment on lesser charges. Murphy filed a timely motion for new trial on August 13, 2014, which was amended twice through new counsel on March 4, 2022 and March 10, 2022. After a series of hearings on March 16, 2022, May 17, 2022, and February 20, 2023, the trial court denied the motion as amended on October 26, 2023, and Murphy filed a timely notice of appeal. The case was docketed to this Court’s August 2025 term and submitted for a decision on the briefs. We note that there was over a 9 year delay between the time Murphy’s court abused its discretion by excluding certain evidence as
inadmissible hearsay, that the State violated Brady 2 by failing to
disclose evidence favorable to Murphy prior to trial, that the trial
court abused its discretion by denying Murphy’s request for a
continuance, and that the trial court erred in making certain
charges to the jury. Murphy also argues that Count 4 of the
indictment fails to comply with due process and that trial counsel
rendered ineffective assistance for failing to call two witnesses
whose testimony would have contradicted the testimony of the
State’s eyewitnesses. For the reasons below, we affirm Murphy’s
convictions.
1. The evidence presented at trial showed as follows. Murphy
initial motion for new trial was filed and the time that the trial court ultimately ruled on Murphy’s motion as amended. While this delay may have at least in part been the result of the multiple substitutions of counsel that took place prior to the trial court’s ruling on Murphy’s amended motion as well as delays resulting from the preparation of the trial transcript, we remind the participants in this case and others involved in the criminal justice system that “it is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.” Owens v. State, 303 Ga. 254, 258 (2018). 2 Brady v. Maryland, 373 US 83 (1963).
2 and his codefendant, Robert Wright, went to Club 5150 in Augusta
in the evening hours on September 14, 2011. Several members of the
Daggett family also went to Club 5150 that same evening. In the
early morning hours of September 15, a fight broke out on the dance
floor between the Daggett family and another group of people from
“Harrisburg,” which included Murphy. Security broke up the fight
and club staff forced all patrons to leave the club. Brown, who was
at the club with friends celebrating a birthday, was among the
patrons forced to leave the club.
A security guard for the club witnessed Murphy leave the club
and walk to a dark-colored vehicle, where Murphy displayed a
firearm. Murphy entered the car, which drove to the front of the
club. Eyewitnesses testified that Murphy, who was sitting in the
passenger’s seat, then fired several shots into the crowd gathered in
the foyer of the club. One of those shots struck Brown in the head;
she died from her injuries.
On September 20, 2011, investigators interviewed Murphy.
Although investigators did not place Murphy under arrest at that
3 time, they administered him Miranda 3 rights, and Murphy agreed
to speak to investigators. During the interview, Murphy admitted
that he went to Club 5150 with Wright on the night of the shooting.
He claimed that they left the club together, that no one else drove
with them in the vehicle, and that neither he nor Wright fired shots
that night. Murphy also claimed at that time that he did not have
any “beef or conflict” with “any of the people on the other side of the
fight.”
Murphy was later identified by two eyewitnesses, Stanley
Curry and Devin Basket, as the shooter. On September 23,
investigators arrested Murphy and reinterviewed him.
Investigators re-administered Miranda rights to Murphy, and
Murphy agreed to waive those rights and speak to investigators.
Murphy again stated that he and Wright were the only people in
Wright’s car that night and that neither of them fired shots.
In December 2011, the lead investigator, Chris Langford,
began receiving letters from Murphy. In January 2012, Langford
3 Miranda v. Arizona, 384 US 436 (1966).
4 again administered Miranda rights to Murphy; Murphy waived
them and agreed to speak to the investigator. This time, Murphy
stated that he left Club 5150 with Roosevelt Ellison, not Wright, in
Ellison’s black Camry or Corolla, and that Ellison “reach[ed] over
with his right arm and [shot] behind him out the back passenger
window.” Murphy also acknowledged that the fight at Club 5150
stemmed from a prior dispute.
At trial, Murphy called Wright, Kevin Brown (“Kevin”), and
Davario Glover as defense witnesses. Wright testified that Murphy
left Club 5150 with Ellison, not Wright, in Ellison’s black Toyota
Camry. 4 Wright left Club 5150 separately and drove to Ellison’s
house, where he testified that he saw Ellison with a gun in his
waistband. Wright also testified that he saw Ellison removing shell
casings from the back seat of his Camry.
Kevin testified that he was at Ellison’s house after the shooting
4 In his first two interviews with law enforcement, however, Wright stated that he left the club in his car with Murphy and that there was “no way that [Murphy] was the shooter because [Murphy] left with [him]” and Wright couldn’t “be around guns because [he was] on probation at the time.” Wright testified that he lied in these first two statements. 5 and that he saw Ellison with a 9mm gun. Glover, Murphy’s brother,
testified that he was at Ellison’s house after the shooting, that he
saw Ellison with a 9mm gun, and that he saw Ellison “washing his
hands with gas[oline].”
2. Murphy argues that the trial court abused its discretion by
excluding hearsay testimony from Glover, Kevin, and Wright about
Ellison’s statements and Ellison’s phone call with Wright in which
he admitted to shooting a gun of the caliber that killed Brown the
night of the incident giving rise to this case. Specifically, Murphy
argues that this evidence should have been admitted under OCGA §
24-8-804(b)(3) (“Rule 804(b)(3)”) as statements against interest and
under the residual hearsay exception, OCGA § 24-8-807 (“Rule
807”). For the reasons that follow, we conclude that the trial court
did not abuse its discretion in excluding this evidence, and we
accordingly reject Murphy’s contentions. See Atkins v. State, 310 Ga.
246, 250 (2020) (“[A] trial court’s decision whether to admit or
exclude evidence will not be disturbed on appeal absent an abuse of
discretion.”).
6 On October 13, 2011, while Wright was in jail, Wright called
Ellison, and Ellison admitted responsibility for shooting a handgun
the night of Brown’s death. This call was recorded. According to
Wright, Ellison claimed that he “let loose,” meaning shot, a 9mm
handgun that night and knew that a handgun of that caliber was
responsible for Brown’s killing. Wright later testified that Ellison
was “very concerned” about the incident, though he was “unsure”
whether his gun had shot the bullets that killed Brown. In the
recording, Ellison admitted to shooting the night Brown was killed,
but he claims that he was not the only person shooting that night
and that Murphy also had a gun.
Langford subsequently interviewed Ellison, and Ellison
admitted that he was at Club 5150 the night of the shooting but
denied firing his gun. Instead, Ellison claimed that his call with
Wright was a “scheme” because he was “friends with them” and that
Murphy and Wright were “supposed to give him money.”
Ellison invoked his Fifth Amendment right against self-
incrimination and did not testify at trial. Murphy sought to admit
7 the recorded phone call between Wright and Ellison in which Ellison
admitted to shooting a gun of the same caliber that killed Brown the
night of the shooting under the hearsay exception for statements
against interest pursuant to Rule 804(b)(3). During pretrial
argument, the trial court ruled that evidence regarding what Ellison
told others, including the jailhouse phone call, was inadmissible
because there were not “sufficient foundational factors to indicate
an indicia of reliability.” In its written order denying Murphy’s
motion for new trial, the trial court stood by its earlier ruling and
explained that Ellison’s hearsay statements claiming responsibility
for shooting a firearm on the night of the crime were not supported
by corroborating circumstances that clearly indicated the
trustworthiness of those statements, a precondition for the
admissibility of those statements under OCGA § 804(b)(3)(B) (“Rule
804(b)(3)(B)”). The trial court’s order also ruled that the statements
were not admissible under Rule 807, the residual hearsay exception,
for the same reason. Consistent with this ruling, the trial court also
excluded similar testimony from Kevin and Glover that they heard
8 Ellison claim responsibility for shooting a firearm that night.
(a) Murphy first argues that Ellison’s statements were
admissible under the hearsay exception for statements against
interest. See OCGA § 24-8-804(b)(3). This argument fails.
Under Rule 804(b)(3), a statement against interest is an out of
court statement made by a person who is unavailable at trial:
(A) Which a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate a claim by the declarant against another or to expose the declarant to civil or criminal liability; and
(B) Supported by corroborating circumstances that clearly indicate the trustworthiness of the statement if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability[.]
There is no dispute that Ellison was unavailable to testify at trial
because he asserted his Fifth Amendment privilege against
compelled self-incrimination and that assertion was accepted by the
trial court. Shealey v. State, 308 Ga. 847, 852 (2020).
We agree with the trial court that Ellison’s hearsay statements
9 appear to be against his interest since they are, on their face,
admissions of criminal activity. We accordingly agree with Murphy’s
argument that subsection (A) of Rule 804(b)(3) is satisfied.
Because Ellison’s hearsay statements were offered in a
criminal case and would tend to expose him to criminal liability,
subsection (B) applies to these statements and requires an analysis
of whether those statements were “[s]upported by corroborating
circumstances that clearly indicate the trustworthiness of the
statement[s.]” OCGA § 24-8-804(b)(3)(B). The trial court is the
gatekeeper for this type of evidence and is tasked with making that
determination in the first instance. We are then tasked with
assessing whether the trial court’s decision is supported by any
evidence and deciding whether it abused its discretion when
admitting or excluding such evidence. See State v. Hamilton, 308
Ga. 116, 121 (2020) (“We review a trial court’s evidentiary rulings
for an abuse of discretion.”).
For the reasons discussed below, we conclude that there is
evidence in the record supporting the trial court’s determination
10 that Ellison’s hearsay statements were not supported by
corroborating circumstances that clearly indicated the
trustworthiness of those statements and that the trial court did not
abuse its discretion by excluding those statements.
We have not previously had the opportunity to consider the
trustworthiness requirement of Rule 804(b)(3)(B). Because “OCGA
§ 24-8-804 is the counterpart to Rule 804 of the Federal Rules of
Evidence,” when we consider the meaning of Rule 804(b)(3)(B)’s
trustworthiness requirement, we may “consider the decisions of
federal appellate courts, particularly the decisions of the United
States Supreme Court and the Eleventh Circuit, construing and
applying our rule’s federal counterpart.”5 Bolling, 300 Ga. at 698
(footnote omitted).
5 Cases from the United States Supreme Court and the United States
Court of Appeals for the Eleventh Circuit decided prior to the effective date of Georgia’s new Evidence Code have precedential value because the “General Assembly was crystal clear in conveying its intent that Georgia’s new Evidence Code was primarily enacted to adopt the Federal Rules of Evidence ... ‘as interpreted’ by the federal appellate courts as of the effective date of the new Code.” State v. Almanza, 304 Ga. 553, 558 (2018). “While still persuasive authority, any subsequent federal appellate case law lacks the same precedential weight as cases before that date.” Id. at 559 n.5. 11 In examining Federal Rule 804(b)(3)(B)’s trustworthiness
requirement, the United States Court of Appeals for the Eleventh
Circuit has determined that “[i]n order for a declaration against
penal interest to be trustworthy evidence, the statement must
actually have been made by the declarant, and it must afford a basis
for believing the truth of the matter asserted.” United States v.
Bagley, 537 F2d 162, 167 (5th Cir. 1976) (emphasis added). 6 In
determining whether a hearsay statement sought to be admitted
under Federal Rule 804(b)(3)(B) is trustworthy, courts may consider
the “totality of evidence in the … case” and the evidence developed
at trial. United States v. Robinson, 635 F2d 363, 364 (5th Cir. 1981).
See also United States v. US Infrastructure, Inc., 576 F3d 1195, 1209
(11th Cir. 2009) (determining that a statement is trustworthy where
“it [is] unlikely, judging from the circumstances, that the statement
was fabricated” and that “the evidence presented at trial supports
6 Decisions of the former United States Court of Appeals for the Fifth
Circuit rendered before the close of business on September 30, 1981, are binding in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F2d 1206, 1209 (11th Cir. 1981) (en banc). 12 the veracity of the out-of-court statement”); United States v.
Thomas, 571 F2d 285, 290 (5th Cir. 1978) (looking at evidence in the
record that “indicates the trustworthiness of the statement” in
addition to noting that the possibility of fabrication was “slight”).
Murphy argues that Ellison’s statements are sufficiently
trustworthy pursuant to Rule 804(b)(3)(B) because his phone call
with Wright was recorded and because three other people – Kevin,
Glover, and Ted Shelley – would have testified that Ellison also told
them he was shooting that night. In essence, Murphy’s argument is
that this hearsay evidence is trustworthy because several witnesses
claimed they heard Ellison make these statements and because
Ellison’s statements to Wright were evidenced by a recording. In
other words, Murphy argues that the statements should have been
admitted because the evidence that the statements were actually
made by Ellison is trustworthy.
Murphy’s focus on whether Ellison’s hearsay statements were
actually made by him is an incomplete analysis of what the trial
court may consider in determining whether Ellison’s statements are
13 admissible. Here, no one has questioned whether Ellison actually
made out of court statements claiming to be one of the shooters. The
recording of his conversation with Wright confirms that he did in
fact make at least one statement to this effect. That is not the issue
that was decided by the trial court and is not the only inquiry under
Rule 804(b)(3)(B). Rather, because the State would have no way to
cross-examine the non-testifying declarant if these statements were
admitted, Rule 804(b)(3)(B) required the trial court to assess and
decide whether corroborating circumstances clearly demonstrated
the trustworthiness of the content of the hearsay statements before
they were admitted, including whether the hearsay statements were
fabricated. Rule 804(b)(3)(B) entrusts the trial court with the
gatekeeping role for the admission or exclusion of this type of
hearsay. Here, the trial court was presented with conflicting
evidence on the controlling issue of trustworthiness, including an
admission by the out of court declarant that, when he admitted to
shooting, he lied in exchange for the promise of money. Given this
evidence, we cannot say that the trial court abused its discretion
14 when it concluded that the hearsay statements were not
trustworthy, and we reject Murphy’s argument that the statements
should have been admitted simply based on the strength of the
evidence that Ellison actually made them.7
At trial, the State pointed to evidence suggesting that Ellison
fabricated his involvement in the shooting at the direction of Wright
and Murphy and that he did so in return for the promise of money.
Specifically, when interviewed by Langford, Ellison claimed that his
call with Wright was a “scheme” because he was “friends with them”
and that Murphy and Wright were “supposed to give him money.”
Ellison claimed that Wright sent a letter to Santrez Hall “telling
7 We recognize that Murphy also points to other evidence of corroboration, such as Kevin’s and Glover’s proffered testimony that Ellison told them he was shooting, Wright’s testimony that Ellison was cleaning shell casings out of his car, Kevin’s and Glover’s testimony that Ellison had a 9mm gun, and Glover’s testimony that Ellison was cleaning his hands with gasoline. While this evidence, if believed by the trial court, may have supported a different ruling on the admission of Ellison’s hearsay statements, that does not mean that the trial court was required to accept this evidence and find that the content of the hearsay was in fact trustworthy. Rather, given the conflict in the evidence on this point, including evidence that Ellison was not in the car with Murphy at the time of the shooting, was not one of the shooters, and lied about his involvement in the shooting in exchange for the promise of money, the trial court was authorized to exercise its discretion and exclude the hearsay. 15 [Ellison] what [he] was supposed to say, so [he] said it,” and at the
beginning of Wright’s recorded phone call to Ellison, before Ellison
got on the phone, Wright can be heard telling someone named Black
to talk to Hall to learn “what the plan is.” Based on this evidence,
the trial court was authorized to exercise its discretion and find that
Ellison’s statements were not sufficiently supported by
corroborating circumstances clearly indicating that they were
trustworthy.
Additionally, Murphy’s multiple statements to law
enforcement were inconsistent with each other and were
inconsistent with the version of events suggested by Ellison’s
hearsay statements, providing the trial court with further reason to
question the veracity of those statements and conclude that they
were not supported by corroborating circumstances that “clearly
indicate” their trustworthiness. In Murphy’s first two statements to
police, he claims he left the club with Wright and did not mention
Ellison. In his third statement, which occurred after eyewitnesses
identified him as the shooter in the passenger side of a dark-colored
16 car, he changed his story and claimed he left the club with Ellison,
not Wright, and that he did not have a gun. Ellison, however,
claimed that Murphy did have a gun and that Ellison was not the
only person shooting that night. Given this conflicting evidence,
combined with Ellison’s admission that he fabricated the out of court
statements in exchange for the promise of money, we conclude that
the trial court did not abuse its discretion in finding that Ellison’s
statements were not trustworthy and therefore not admissible
under Rule 804(b)(3)(B).8 See United States v. Tipton, 572 F. App’x
8 Further support for our holding that the proper inquiry under Rule
804(b)(3)(B) considers the trustworthiness of the content of the hearsay statements and not just the strength of the evidence showing that the statements were actually made is found in the Notes of the Advisory Committee on Federal Rule 804(b)(3). See Almanza, 304 Ga. at 559 n.6 (“[A]lthough Advisory Committee Notes are not binding precedent and cannot change the plain meaning of the law or rules, they are highly persuasive (unlike ordinary legislative history).”). These Notes characterize the trustworthiness requirement as “a requirement preliminary to admissibility” and state that “[t]he requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication.” Similarly, the Notes of the Advisory Committee with respect to the 2010 Amendment to Federal Rule 804(b)(3) state: “In assessing whether corroborating circumstances exist, some courts have focused on the credibility of the witness who relates the hearsay statement in court. But the credibility of the witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. To base admission or exclusion of a hearsay statement on the witness’s credibility would usurp the jury’s role of
17 743, 748 (11th Cir. 2014) (affirming a trial court’s decision to exclude
hearsay evidence under Federal Rule 804(b)(3) because the
declarant was “completely unbelievable”); United States v. Berry,
496 F. App’x 938, 942 (11th Cir. 2012) (affirming the trial court’s
exclusion of an out of court declarant’s statements as not clearly
corroborated because he recanted post-arrest statements about
drug ownership in a follow-up interview with police and “allowing
multiple, inconsistent statements by an unavailable witness could
mislead the jury and confuse the issues”).
(b) Murphy also claims that Ellison’s statements should have
been admitted under Rule 807, the residual hearsay exception. We
conclude that, for the same reasons the trial court did not abuse its
discretion in excluding this evidence under Rule 804(b)(3), it did not
abuse its discretion in finding that this evidence did not possess the
“guarantees of trustworthiness” required by Rule 807. See OCGA §
determining the credibility of testifying witnesses.” As shown by this language, the focus of the Rule’s trustworthiness requirement is not the veracity of the testifying witness who relays the hearsay in court but the trustworthiness of the content of the hearsay statements themselves. 18 24-8-807 (requiring statements to possess “equivalent
circumstantial guarantees of trustworthiness” to qualify for
admission); State v. Kenney, 315 Ga. 408, 415 (2023) (“[A] court must
find that hearsay statements have guarantees of trustworthiness
[that are] equivalent to those found in the other statutory exceptions
to hearsay set forth in Rules 803 and 804 before they can be
admitted under the residual exception.” (cleaned up)). Compare
Kennebrew v. State, 317 Ga. 324, 335 (2023) (concluding that trial
court did not abuse its discretion in admitting evidence under Rule
807 where, among other things, there “was no evidence presented
indicating that [the declarant] had any motive to fabricate his
statements”).
3. Murphy argues that the trial court erred in finding that the
State did not violate Brady by failing to provide him with
exculpatory evidence. Specifically, Murphy argues that the State’s
failure to provide him with Langford’s audio-recorded interview
with Shelley, as well as Langford’s supplemental interview notes
from that interview, constituted a Brady violation. Murphy also
19 argues that, because the State violated Brady, the trial court erred
in denying Murphy’s motion for a continuance to investigate
Shelley’s statements. These claims fail.
Prior to trial, Langford interviewed Shelley, who claimed that
Ellison told him that both he and Murphy were shooting at the time
of Brown’s death. Langford recorded his interview with Shelley and
provided a supplemental report on the interview to the State. The
State claimed it did not have the report and did not provide the
report in discovery. Murphy argued that he was unaware that the
State interviewed Shelley or that Shelley had favorable evidence
until the morning of trial.
On June 30, 2014 (more than a month before trial), Murphy
sent the State a witness list that included Shelley’s name. During a
pretrial hearing the morning of trial, Murphy’s counsel told the
court that he wanted to call Langford as a witness because he “found
out … a Ted Shelley was used by the police … to talk to Roosevelt
Ellison.” Murphy called Langford as a witness during this pretrial
hearing, and Langford testified that Shelley contacted him in
20 October 2012 from jail to let Langford know that he had information
about a homicide. Langford testified that he interviewed Shelley in
October 2012, and Shelley stated that Ellison had told him
“[Murphy] and the others had gotten into it,” and “Murphy was
shooting at the time of the incident and advised that [Ellison] was
shooting, as well.” Shelley indicated that the “only reason he knew
about [the shooting] was because Roosevelt Ellison told him.”
Murphy requested a continuance to speak with Shelley, and
the State argued that Murphy “knew he was a witness, and they had
an opportunity to speak with him,” and “if they had taken the
opportunity to speak with him ... he could have told them about
this.” The State also contended that it had no information about
Shelley in Langford’s investigative report. The trial court denied
Murphy’s motion for a continuance.
(a) Murphy first claims that the State violated Brady by not
disclosing Shelley’s interview or Langford’s notes regarding that
interview. To prevail on his Brady claim, Murphy must prove that:
(1) the State possessed evidence favorable to the
21 defendant; (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the trial would have been different.
Schofield v. Palmer, 279 Ga. 848, 852 (2005). “Evidence is not
regarded as ‘suppressed’ by the government when the defendant has
access to the evidence before trial by the exercise of reasonable
diligence.” State v. James, 292 Ga. 440, 442 (2013). “The burden of
proof on these elements lies with the defendant,” and “[w]e review a
trial court’s factual findings regarding a Brady claim for clear error
but review the court’s application of the law to the facts de novo.”
Harris v. State, 313 Ga. 653, 664 (2022).
Murphy’s claim fails because he cannot establish that he could
not have obtained Shelley’s statements himself with reasonable
diligence. Here, Murphy’s trial counsel listed Shelley on a witness
list that he emailed to the State on June 30, 2014. Shelley’s existence
was therefore known to Murphy for more than a month prior to trial,
and Murphy could have interviewed Shelley and obtained this
22 testimony by exercising reasonable diligence. See Swindle v. State,
274 Ga. 668, 670 (2002) (no Brady violation when the State did not
disclose the whereabouts of a potential alibi witness where the
witness “was known to Swindle and other defense witnesses, and he
apparently was as available to the defense as he was to the
prosecution”). See also James, 292 Ga. at 442 (no Brady violation
where co-defendants received two pages of a medical examiner’s
report and not the third page when the report was clearly paginated,
putting them on notice that a page was missing, and where third co-
defendant obtained the missing page).
(b) Murphy also argues that, as a result of the alleged Brady
violation, the trial court should have granted his motion for a
continuance so that he could investigate Shelley’s statements and
produce him as a witness at trial.
“In considering a motion for continuance, the trial court enjoys
broad discretion and may grant or refuse the motion as the ends of
justice may require.” Mann v. State, 307 Ga. 696, 703 (2020). “To
obtain a new trial based upon the denial of a motion for a
23 continuance, an appellant must show not only a clear abuse of
discretion on the part of the trial court in denying the motion but
also that he was harmed by that denial.” Id. Here, Shelley was
known to Murphy for more than a month prior to trial, and Murphy
could have easily investigated what he knew about the case prior to
trial. Given these facts, we cannot say that the trial court abused its
discretion in denying Murphy’s request for a continuance. See
Mann, 307 Ga. at 703–04. Accordingly, this enumeration is without
merit.
4. Murphy argues that the trial court erred in instructing the
jury that “[p]resence, companionship and conduct before and after
the offense are circumstances from which one’s participation and
criminal intent may be inferred.” This enumeration is without merit.
We review properly preserved challenges to jury instructions
de novo. See Campbell v. State, 320 Ga. 333, 347 (2024). Murphy
objected to the presence and companionship instruction both at the
charge conference and after the instruction was given to the jury by
the trial court, arguing that the instruction, as given, was
24 inconsistent with the pattern charge on mere presence also given by
the court. Murphy argues that the correct legal theory is as follows:
It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. However, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.
At trial, the court gave the following instructions relevant to
intent:
This defendant will not be presumed to have acted with criminal intent, but you may find such intent, or the absence of it, upon a consideration of words, conduct, demeanor, motive and other circumstances connected with the act for which the accused is being prosecuted.
Every person is presumed to be of sound mind and discretion, but this presumption may be rebutted. You may infer if you wish to do so that the act of a person of sound mind and discretion are the product of that person’s will, and a person of sound mind and discretion intends the natural and probable consequences of those acts.
Whether or not you make any such inference or inferences is a matter solely within your discretion.
25 If one intentionally commits an unlawful act, yet the act harmed a victim other than the one intended, it is not a defense that the defendant did not intend to harm the actual person injured.
Presence, companionship and conduct before and after the offense are circumstances from which one’s participation and criminal intent may be inferred.
The trial court later gave the following instructions on mere
presence and association:
A jury is not authorized to find a person who is merely present at the scene of the commission of a crime at the time of its perpetration guilty of consent in concurrent with the commission of the crime unless the evidence shows beyond a reasonable doubt that such person committed the alleged crime, helped in the actual perpetration of the crime, or participated in the criminal endeavor.
A jury is not authorized to find a person who is merely associated with other persons involved in the crimes, involved in the commission of a crime, guilty of consent in or concurrence in the commission of a crime unless the evidence shows beyond a reasonable doubt that such person helped in the actual perpetration of the crime or participated in the criminal endeavor.
The instructions given by the trial court do not materially differ from
those which Murphy claims should have been given and do not
26 constitute sufficient grounds for reversal. Although the trial court
did not give the instructions in the order advanced by Murphy, that
is not grounds for a new trial, at least absent a showing that the
order in which they were given rendered the instructions erroneous.
See Pruitt v. State, 282 Ga. 30, 33 (2007) (rejecting appellant’s
challenge to the “order in which the trial court gave certain jury
instructions”). Moreover, these jury instructions are not
contradictory. In Pruitt,
The trial court charged the jury that a defendant’s mere presence at the scene of the commission of a crime did not authorize finding the defendant guilty unless the evidence established beyond a reasonable doubt that the defendant committed the crime, helped in the commission of the crime, or participated in the criminal endeavor. The trial court then informed the jury of the elements of the various crimes the defendants were charged with committing, and thereafter instructed the jury that participation in the criminal intent could be inferred from presence, companionship, and conduct before and after the commission of the offenses.
282 Ga. at 33. Although the appellant in Pruitt argued that these
jury instructions were “contradictory” and “incomprehensible,” this
Court held that the two charges were “accurate statements of law
27 and are not contradictory.” Id. As in Pruitt, while these charges “are
complementary and are often stated together as a single principle of
law,” their separation does not make “the resulting charge
‘incomprehensible.’” Id.
Murphy also argues that the trial court misstated the presence
and companionship instruction. Although the State requested that
the jury be charged that “[p]resence, companionship and conduct
before and after the offense are circumstances from which one’s
participation in the criminal intent may be inferred,” the trial court
instead gave the instruction that “[p]resence, companionship and
conduct before and after the offense are circumstances from which
one’s participation and criminal intent may be inferred.”
“[C]riminal intent may be inferred from presence,
companionship, and conduct before, during, and after the offense.”
Baker v. State, 320 Ga. 156, 161 (2024) (citation and punctuation
omitted). Thus, even though the trial court did not use exactly the
same language as was requested by the State, the charge as given
did not misstate the law. Moreover, the trial court also instructed
28 the jury that Murphy “will not be presumed to have acted with
criminal intent” but the jury may “find such intent, or the absence
of it, upon a consideration of words, conduct, demeanor, motive and
other circumstances connected with the act for which the accused is
being prosecuted.” The trial court also adequately instructed the
jury on the State’s burden to prove Murphy guilty beyond a
reasonable doubt. This enumeration therefore fails because, as a
whole, the jury instructions adequately instructed the jury on
intent. See Pruitt, 282 Ga. at 33.
5. Murphy argues that the trial court erred in denying his
motion for a directed verdict as to Count 4 of the indictment because
it fails to identify the victims of the offense. This enumeration fails.
Count 4 of the indictment alleges that Murphy “did make an
assault upon several individuals leaving Club 5150 … with an
unknown type handgun, a deadly weapon, by firing the handgun at
Club 5150 as the individuals were leaving the club.” At trial,
Murphy filed a motion for directed verdict as to this count, arguing
that it was deficient because it failed to “state any particular people
29 [that] were shot at.” The trial court denied the motion. On appeal,
Murphy argues that the trial court erred in denying that motion
because Count 4’s failure to identify individuals that Murphy
allegedly assaulted does not adequately inform him of the nature of
the charge against him for double jeopardy purposes.
Murphy’s claim fails, however, because “a motion for directed
verdict of acquittal is not the proper way to contest the sufficiency
of an indictment. A motion for directed verdict of acquittal addresses
the sufficiency of the evidence, not the sufficiency of the underlying
indictment.” Adkins v. State, 279 Ga. 424, 426 (2005) (cleaned up).
Thus, the trial court did not err in denying Murphy’s motion. 9 See
id. (holding that a motion for a directed verdict was not the
appropriate way to challenge an indictment that was allegedly
9 At trial, Murphy’s counsel also moved for a directed verdict as to Count
4 of the indictment because “there is insufficient evidence.” On appeal, however, Murphy challenges only the trial court’s denial of his motion because the indictment fails “to adequately inform Murphy of the nature of the charge against him.” Thus, we decline to address whether the trial court erred by denying Murphy’s motion for a directed verdict as to Count 4 on the basis that the evidence was insufficient to support a conviction on that Count. We also note that Murphy did not file a pretrial special demurrer to challenge the sufficiency of this Count of the indictment. 30 insufficient because it failed to identify victims by name).
6. Finally, Murphy argues that his trial counsel rendered
constitutionally deficient assistance by failing to call two witnesses,
Phillip Korte and Tavares Jones, to testify that the shooter was in a
white car because their testimony would have contradicted the
testimony of the State’s eyewitnesses, who identified Murphy as the
shooter from a dark-colored car. For the reasons that follow, we
disagree.
A defendant claiming ineffective assistance of counsel must
prove deficient performance by his counsel and resulting prejudice.
See Strickland v. Washington, 466 US 668, 687 (1984). To prove
deficient performance, a defendant must demonstrate that “counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
This requires Murphy to “overcome the strong presumption that
counsel’s performance fell within a wide range of reasonable
professional conduct, and that counsel’s decisions were made in the
exercise of reasonable professional judgment.” Wilson v. State, 313
31 Ga. 319, 322 (2022) (citation and punctuation omitted).
“Importantly, in the absence of evidence to the contrary, counsel’s
decisions are presumed to be strategic and thus insufficient to
support an ineffective assistance of counsel claim.” Id. (citation and
punctuation omitted). “If either Strickland prong is not met, this
Court need not examine the other prong.” Palmer v. State, 303 Ga.
810, 816 (2018).
During the hearing on Murphy’s motion for new trial, Murphy’s
trial counsel testified that, during discovery, he learned that Korte
told law enforcement that the shooter was in a white car. Murphy’s
trial counsel also testified that he learned that Jones likewise said
that the shooter was in a white car.
Murphy’s trial counsel testified that he wanted to “focus” on
the defense theory that “the gun was being held by a different hand”
and that he was “trying to focus the jurors[’] attention on the angle
of Roosevelt Ellison because … [he] believe[d] that was the best.”
Trial counsel further testified that he tried to “keep the jury’s
attention on facts that are important, and also not to call people that
32 may leave me holding it.” Trial counsel acknowledged that
testimony that the shooter’s car was white was “contradictory” to
testimony that it was black or dark-colored, but stated that “we
always have to strategically decide what you’re going to try to focus
the jury’s attention on.”
“[T]he decision of whether to call a witness to testify at trial is
a matter of trial strategy and tactics, and such a strategic and
tactical decision cannot be deemed deficient performance unless the
decision is so unreasonable that no competent attorney would have
made it under similar circumstances.” Roberts v. State, 296 Ga. 719,
724 (2015) (citation and punctuation omitted). Here, trial counsel
testified that he made the strategic decision to focus on the defense
theory that Ellison, not Murphy, was the shooter and believed that
to be a stronger defense than the argument that the shot came from
a white car, not a dark-colored car, as presenting both defenses
might discredit the defense and confuse the jury. We cannot say that
trial counsel’s strategy was objectively unreasonable, especially in
light of Murphy’s own statements to investigators that he left the
33 club with Ellison in a dark-colored vehicle such that testimony that
the shooter rode in a white car may very well have discredited
Murphy’s primary defense. Accordingly, Murphy has not
demonstrated that his trial counsel’s performance was deficient, and
his claim of ineffective assistance of counsel therefore fails.
7. Citing State v. Lane, 308 Ga. 10 (2020), Murphy argues that,
“in weighing the prejudicial effect on Murphy’s trial, trial counsel’s
deficiency is to be considered cumulatively with any errors by the
trial court.” “In considering a claim of cumulative error, we evaluate
only the effects of matters determined to be error, not the cumulative
effect of non-errors.” O’Neal v. State, 316 Ga. 264, 271 (2023).
Because none of Murphy’s claims of error have succeeded and he has
not shown that his counsel performed deficiently, “there are no
errors to aggregate, and his claim of cumulative error also fails.” Id.
Judgment affirmed. All the Justices concur.