320 Ga. 43 FINAL COPY
S24A0610. NABORS v. THE STATE.
LAGRUA, Justice.
In March 2020, Appellant Brejon Nabors was convicted of
malice murder and related charges in connection with the shooting
death of Mondavius Milan.1 On appeal, Nabors contends (1) trial
counsel was ineffective for advising Nabors not to testify in his own
defense, and (2) the State failed to prove guilt beyond a reasonable
doubt because the verdict was based exclusively on accomplice
testimony. For the reasons explained herein, we affirm.
1 The crimes occurred in Atlanta on April 3, 2018. On August 25, 2018, a
Fulton County grand jury indicted Nabors for malice murder (Count 1), two counts of felony murder (Counts 2 and 3), aggravated assault with a deadly weapon (Count 4), possession of a firearm during the commission of a felony (Count 5), and possession of a firearm by a convicted felon (Count 6). Nabors was tried March 9-13, 2020, and the jury found him guilty on all counts. The trial court sentenced Nabors to serve life in prison for Count 1 and five years consecutive for both Counts 5 and 6, merged Count 4 into Count 1, and vacated Counts 2 and 3. Nabors, through trial counsel, timely moved for a new trial on March 18, 2020. Nabors obtained new counsel and filed an amended motion for new trial on January 31, 2023. After an evidentiary hearing, the trial court denied Nabors’s motion on June 30, 2023. Nabors filed a timely notice of appeal, and his case was docketed to this Court’s April 2024 term and submitted for a decision on the briefs. The evidence at trial established that, in the days leading to
the shooting, Nabors, Milan, and Jaleesia Mathis were involved in a
check fraud scheme: they would open a bank account, deposit a
fraudulent check or money order, and withdraw cash before the
bank discovered the fraud. On April 2, 2018, the day before the
shooting, Milan drove Nabors and Mathis in Nabors’s black, two-
door Chevrolet Monte Carlo2 to open accounts and make fraudulent
deposits in furtherance of the scheme. They planned to withdraw
cash the following day.
On the morning of April 3, 2018, between 6:00 and 7:00 a.m.,
Nabors and Milan arrived at Mathis’s apartment to pick her up.
Mathis lived with Japhar White, her then-romantic partner and the
father of her two children. White was not previously involved in the
check fraud scheme, but Mathis asked him to ride along that
morning for her protection. Nabors asked Mathis to drive because
“[t]hey said that they had been out all night,” were tired, and were
2 The Monte Carlo was registered to Nabors’s mother, who testified it
belonged to her son. Both Mathis and Japhar White testified that this Monte Carlo was driven by Nabors. 2 on drugs. White stated at trial “[they] were all high” on the morning
of the shooting, including himself. The group left Mathis’s
apartment and got into Nabors’s Monte Carlo: Mathis drove, Nabors
was in the passenger seat, Milan was seated behind Mathis, and
White was seated behind Nabors.
During the trip, Mathis and White testified that Nabors raised
the issue of money missing from an account and accused Milan of
stealing it. Milan denied the accusation, but his denial did not
defuse the situation. As accusation turned to argument, Mathis saw
Nabors pull out and cock a gun between his legs, while demanding
that Milan tell him where the money was. Mathis testified that,
moments later, Milan reached over the driver’s seat, grabbed the
steering wheel, and swerved the vehicle off the road. White also
testified that Milan grabbed the steering wheel and forced the
vehicle off the road, but White had not yet seen a gun at that time.
The vehicle came to rest in a field surrounded by trees across from
a gas station.
As soon as the vehicle came to a stop, Mathis exited the driver’s
3 door and ran toward the woods, leaving her shoes and purse behind.
Mathis testified that she immediately ran because she “had a
warrant” for violating her probation and was driving without a
license. Mathis heard gunshots while running. After the shots,
Mathis saw Nabors run “another way” toward the tree line and
heard him yelling, “F**k, f**k, f**k.”
White testified that, just after the vehicle went off the road,
Nabors and Milan “got to tussling” over what “had to be the gun,”
first in the car and then just outside of it. White told the police he
saw Nabors with a gun and that Nabors fired a gun in Milan’s
direction.3 After the first gunshot, White took off running for the
woods. White testified that he ran in part because he was on
probation and “ain’t supposed to be around nothing like that.” Like
Mathis, White also saw Nabors run toward the tree line after the
shooting. Both Mathis and White saw Milan moving toward the road
3 White made this statement to the police on the day of the shooting. At
trial, White initially testified on direct examination that he “heard a shot” but “didn’t see a weapon,” and that he did not remember much of his statement to the police. However, White later stated on re-direct examination that Nabors had a gun on the day of the shooting. 4 after the gunshots, and neither saw Nabors again. Nabors fled the
scene and ultimately, the state. Milan fell to the ground near the
road after being shot. A medical examiner testified at trial that
Milan’s death was caused by two gunshot wounds: one to the
abdomen and one to the back.
Three eyewitnesses who testified at trial were at a gas station
across the street from the field where the shooting occurred. Two
were police officers. One of the officers was inside a patrol vehicle
when he heard three gunshots coming from the direction of the field
across the road. As the police officer exited the patrol vehicle, he saw
three people running from the Monte Carlo — two in the direction
of the woods and a third toward the road. At trial, the police officer
testified that the person who ran toward the road was a male victim
— later identified as Milan — but he was unsure whether the others
were male or female. The second police officer also saw three people
run from the Monte Carlo after hearing gunshots, but said all three
ran in the same direction toward the woods. Beyond confirming that
the victim was male, the second officer was similarly unsure of the
5 gender of the runners. Neither police officer recalled seeing a fourth
runner. The third witness at the gas station testified that her
attention was drawn to the Monte Carlo by the sound of arguing,
immediately followed by gunfire. This witness testified that she saw
three or four people around the vehicle, including a man later
identified as Milan, who she described as “running around the car,”
“dodging,” trying “to get away,” and “running for his life” before
being shot twice by a different man with a gun. The witness further
testified to seeing Milan run toward the road after being shot and
then collapse. The witness said she saw at least two people run
together into the woods — one of whom was the male shooter — but
she could not be sure of the gender of the other people running.
Mathis and White re-connected in the woods just after the
shooting and attempted to evade the police for a short time before
being separated. White was captured by the police approximately 15
minutes after the shooting and taken into custody. Mathis
successfully evaded the police before turning herself in that
afternoon. While in custody, Mathis and White waived their
6 Miranda4 rights, were interviewed by the police, and identified
Nabors as the shooter. White’s hands were tested for gunshot
residue, and the results were negative. Mathis was never tested for
gunshot residue. Based in part on the statements made by Mathis
and White, a warrant was issued for Nabors’s arrest. The warrant
remained outstanding until May 17, 2018, when Nabors was
arrested by law enforcement in Massachusetts during the execution
of an unrelated warrant, and he was then extradited to Georgia.
In addition to eyewitness testimony, the State presented expert
testimony from a police investigator regarding the call logs and cell
site location data for phone numbers belonging to Nabors and
Mathis. The call logs showed a series of calls made or attempted
between Nabors’s phone and Mathis’s phone in the hours
immediately prior to the shooting. The final recorded outgoing call
from Nabors’s device at 6:22 a.m. placed his phone in the vicinity of
AMC South Hospital — away from the location of the shooting —
which was consistent with the testimony of Mathis and White, who
4 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
7 stated Nabors went to the hospital with Milan and others in the
early morning hours of April 3, 2018. However, the data offered no
insight into Nabors’s location after 6:22 a.m., Nabors’s call logs
showed no outgoing activity after that time, and his phone stopped
receiving calls shortly thereafter, indicating the device was powered
off. When Nabors was taken into custody in Massachusetts, he was
in possession of a different phone that had been activated two days
after the shooting. Cell site data from Mathis’s phone number
indicated the location of her phone to be in the vicinity of the
shooting after 7:00 a.m.
1. Nabors contends trial counsel was ineffective for advising
him not to testify at trial in his own defense. We disagree.
To prevail on an ineffective assistance of counsel claim, a
defendant must establish (1) that performance of his or her counsel
was deficient and (2) that the deficient performance resulted in
prejudice to the defense. Strickland v. Washington, 466 U. S. 668,
687 (III) (104 SCt 2052, 80 LE2d 674) (1984). Failure to satisfy
either prong is fatal to a claim. See Lawrence v. State, 286 Ga. 533,
8 533-534 (2) (690 SE2d 801) (2010) (“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.”). As
discussed below, because we conclude that Nabors failed to establish
deficient performance by trial counsel, his ineffectiveness argument
fails, and we need not address prejudice.
To establish deficient performance, a defendant must show his
or her “counsel performed in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” Ward v. State, 318 Ga. 884, 896 (3) (901 SE2d
189) (2024) (citation and punctuation omitted). Put differently, it
must be shown that “no reasonable lawyer would have done what
his lawyer did, or would have failed to do what his lawyer did not.”
Warren v. State, 314 Ga. 598, 602 (2) (878 SE2d 438) (2022) (citation
and punctuation omitted). We evaluate performance “from counsel’s
perspective at the time of trial and under the particular
circumstances of the case.” Taylor v. State, 312 Ga. 1, 15 (6) (860
SE2d 470) (2021) (citation and punctuation omitted). We also afford
9 a “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.” Id. (citation and punctuation omitted). This is
particularly true when it comes to trial strategy and tactics. See
Warren, 314 Ga. at 602 (2) (“[D]ecisions about trial tactics and
strategy in particular may not form the basis of an ineffectiveness
claim unless they were ‘so patently unreasonable that no competent
attorney would have followed such a course.’”) (citation omitted).
“In Georgia, whether or not to testify in one’s own defense is
considered a tactical decision to be made by the defendant himself
after consultation with his trial counsel[.]” Burton v. State, 263 Ga.
725, 728 (6) (438 SE2d 83) (1994). Moreover, trial counsel’s advice to
a defendant regarding a defendant’s choice is considered tactical or
strategic. See State v. Goff, 308 Ga. 330, 334 (1) (840 SE2d 359)
(2020) (“Such strategic choices include the decision to advise a
defendant not to testify.”). In this context, “it is generally enough for
counsel to advise the defendant about the ‘pros and cons’ of
10 testifying and explain that the ultimate choice is the defendant’s to
make, whether the defendant testifies and then regrets it . . . or does
not testify and later wishes he had.” Warren, 314 Ga. at 604 (2) (b).
At the close of the State’s case-in-chief and outside the presence
of the jury, Nabors’s counsel moved for a directed verdict, which the
trial court denied. Immediately thereafter, the trial court informed
Nabors he had the right to testify and that the decision to testify
was his own. Nabors affirmed he understood those rights, affirmed
he had been provided an opportunity to consult with trial counsel
about testifying, affirmed such conversations had occurred, and
affirmed he was satisfied with those conversations. Upon the jury’s
return, the trial court invited Nabors to call witnesses and introduce
evidence. Nabors opted not to present any witnesses or evidence.
During closing, Nabors’s trial counsel (1) argued that Nabors could
not have shot Milan because he was asleep at the time; (2) theorized
Mathis or White was the real killer;5 and (3) characterized various
5 In support of this theory, Nabors’s trial counsel highlighted Mathis and
White’s relationship and shared children; Mathis’s and White’s flight from the
11 pieces of evidence pointing to Nabors as the shooter as unreliable.
In Nabors’s amended motion for new trial, he argued that his
trial counsel gave constitutionally deficient advice by “improperly
counsel[ing] [him] not to testify in his own defense.” During a
hearing on that motion, Nabors and his trial counsel testified.
Nabors asserted that he wanted to testify, but that trial counsel
“kept strongly advising me not to.” Specifically, Nabors recounted
that trial counsel advised him against testifying because “he told me
that, basically, I was no match for the — like, the DA I was facing
and that she would probably open up loopholes against me.”
However, Nabors affirmed that he understood that the decision not
to testify was ultimately his to make, and that he elected not to
testify. Trial counsel testified at the motion for new trial hearing
that he advised Nabors not to testify during trial, and that Nabors
scene; the fact that neither Mathis nor White suffered adverse probation consequences resulting from the check fraud scheme or being at the scene of Milan’s shooting; the fact that money had been withdrawn from Mathis’s account prior to Milan’s shooting by someone other than herself; and conflicting testimony as to whether three or four people were seen running from the Monte Carlo. 12 reached his decision independently “in the back area prior to coming
out” at trial. Trial counsel characterized the defense theory he
employed in Nabors’s case as a “standard, reasonable doubt
defense,” which aimed to show the jury that the State could not
prove Nabors was at the scene or guilty of the alleged crimes beyond
a reasonable doubt. As for the reasons trial counsel advised Nabors
not to take the stand, trial counsel testified that he believed that
Nabors’s testimony could hurt the defense and that the risk for harm
arising from Nabors’s testimony outweighed any potential benefit.
Specifically, trial counsel reasoned that Nabors’s testimony could be
damaging because (1) the prosecutor was highly skilled and could
hurt Nabors’s credibility on cross-examination; (2) there were no
witnesses who could corroborate Nabors’s story that he was not
involved in the shooting and was asleep at the time;6 and (3) putting
6 During his motion for new trial hearing Nabors maintained that if he
had testified at trial, he would have admitted to involvement in the check fraud scheme but denied shooting Milan or even being at the scene. Instead, he would have testified to being asleep at Mathis’s apartment during the shooting, that his phone was turned off because it was charging, that he loaned his car to Mathis, White, and Milan on the morning in question, and that his trip to Massachusetts two days after the shooting was unrelated to Milan’s death. 13 Nabors on the stand could open the door to past felony convictions
for impeachment purposes, which could further damage his
credibility with the jury.7 After the hearing, the trial court denied
Nabors’s amended motion for new trial, concluding that, based upon
“the testimony of trial counsel, the witness adduced, the record and
the argument of the parties,” that Nabors “failed to show either
deficient performance or harm arising from any of his allegations of
ineffective assistance.”
The trial court concluded that trial counsel’s performance in
this case was not constitutionally deficient, and we agree. Again, “it
is generally enough for counsel to advise the defendant about the
‘pros and cons’ of testifying and explain that the ultimate choice is
the defendant’s to make[.]” Warren, 314 Ga. at 604-605 (2) (b). That
is precisely what Nabors’s trial counsel did here: he advised Nabors
not to testify because of the prosecutor’s skill, a lack of corroboration
7 The parties stipulated at trial that Nabors was a convicted felon, so the
jury never learned the conviction was for armed robbery. Nabors had additional felony convictions that were more than ten years old which trial counsel advised might come in if Nabors testified. 14 for Nabors’s version of events, and the risk of a damaging cross-
examination that could hurt Nabors’s credibility with the jury.
Nabors’s trial counsel then left the decision about whether to testify
to Nabors, who made that decision himself. Beyond Nabors’s present
claim that the pros of testifying outweighed the cons — a position
colored by hindsight — he has not shown that his trial counsel’s
advice or strategy was unreasonable. And importantly, Nabors has
not shown that no reasonable lawyer would have rendered the same
advice nor that his trial counsel’s advice was “so patently
unreasonable that no competent attorney would have followed such
a course.” Warren, 314 Ga. at 602 (2) (citation and punctuation
omitted). To the contrary, we have previously determined that trial
counsel has acted appropriately in a range of similar circumstances.
See, e.g., Moulder v. State, 317 Ga. 43, 54 (3) (c) (891 SE2d 903)
(2023) (concluding trial counsel’s performance was not deficient and
that trial counsel performed reasonably when he advised defendant
that the State could attempt to impeach him with convictions more
than ten years old if he took the stand); Goff, 308 Ga. at 334-335 (1)
15 (holding trial counsel’s advice against testifying was not deficient or
unreasonable because testifying could subject the defendant to
damaging cross-examination and undermine the theory of the
defense); Hamilton v. State, 274 Ga. 582, 589 (13) (555 SE2d 701)
(2001) (concluding trial counsel did not perform deficiently in urging
defendant not to testify in part because “they expected the
prosecuting attorney to make very effective cross-examination”);
Barnett v. State, 300 Ga. 551, 557 (3) (796 SE2d 653) (2017)
(concluding trial counsel’s strategy of advising defendant not to
testify while offering alternative narrative of events to the jury was
not deficient performance and was reasonable in an effort to avoid
“damaging cross-examination”).
We have also said that when a defendant has been advised of
his rights and makes an informed decision after consultation with
trial counsel, a defendant’s “failure to testify on his own behalf [is
not] in any way connected to any alleged deficiency of his trial
counsel.” Jackson v. State, 306 Ga. 475, 481 (4) (b) (831 SE2d 755)
(2019). Here, the record indicates Nabors was made aware of his
16 right to testify in his own defense by both his trial counsel and the
trial court and made the decision not to testify himself. As such, we
cannot say that Nabors’s counsel performed deficiently. Accordingly,
Nabors’s ineffective assistance of counsel argument fails.
2. Nabors contends that the State failed to prove guilt beyond
a reasonable doubt because his convictions were based exclusively
on accomplice testimony, and thus, legally insufficient under OCGA
§ 24-14-8. This contention is meritless.
From the outset, we note the record does not support Nabors’s
framing of this enumeration of error, because we cannot say these
verdicts were “based exclusively” on accomplice testimony. The
testimony of Mathis and White may have been key evidence of
Nabors’s guilt, but additional evidence was also presented from
other sources, including the testimony of the eyewitnesses from the
gas station; the phone call logs and cell site location data from
Nabors’s and Mathis’s phones; Nabors’s flight from the scene; and
Nabors’s acquisition of a new phone just after the shooting.
In any event, Nabors’s enumeration of error contends that
17 Mathis and White were accomplices to the murder and that the
evidence was legally insufficient to corroborate their testimony
under OCGA § 24-14-8. Assuming without deciding that Mathis and
White were accomplices to Milan’s murder, the evidence of
corroboration was sufficient under OCGA § 24-14-8, and Nabors’s
contention fails.8
Pursuant to OCGA § 24-14-8:
The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and 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, except in prosecutions for treason.
See Doyle v. State, 307 Ga. 609, 611 (1) (837 SE2d 833) (2020)
(“Georgia law requires corroboration in felony cases where the only
witness testifying to the defendant’s participation in the crime is an
accomplice.”) (citing OCGA § 24-14-8). Corroborating evidence “may
8 Nabors does not claim the evidence was insufficient as a matter of due
process and agrees that the trial court properly instructed the jury on the requirement of accomplice corroboration. 18 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 (2) (888 SE2d 473) (2023) (citation omitted). Moreover, it is
well settled that the testimony of one accomplice can corroborate the
testimony of another. Jackson v. State, 314 Ga. 751, 755 (1) (879
SE2d 410) (2022). See also Sams v. State, 314 Ga. 306, 312 (2) (b)
(875 SE2d 757) (2022) (concluding that testimony from one
accomplice was sufficient to corroborate the testimony of another
when both saw defendant at the scene with a gun, both heard
gunshots, and both saw appellant leave the scene after the shots).
Mathis and White sufficiently corroborated each other’s
testimony implicating Nabors in Milan’s murder. Both testified that
Nabors was in the Monte Carlo with them on the morning in
question, that Nabors became upset with Milan, and that Nabors
accused Milan of stealing money from him. Both testified that
Nabors’s accusation escalated into an argument between Nabors
and Milan, that Milan grabbed the steering wheel and pulled the
vehicle off the road, and that a fight broke out between Nabors and
19 Milan either inside or just outside of the vehicle. Both testified to
Nabors having a gun, to hearing gunshots as they ran away, to
Nabors being the shooter, and to Nabors running into the woods
after the shooting. Mathis’s testimony and White’s testimony was
consistent, such that White provided sufficient corroboration for
Mathis’s testimony, and Mathis provided sufficient corroboration for
White’s testimony under OCGA § 24-14-8. Jackson, 314 Ga. at 755
(1). Moreover, the testimony of the eyewitnesses at the gas station,
along with the phone call logs and cell site location data, and
Nabors’s flight from the scene, offer further corroboration of this
testimony and support the verdict. Accordingly, Nabors’s contention
fails.
Judgment affirmed. All the Justices concur.
20 Decided October 15, 2024.
Murder. Fulton Superior Court. Before Judge Adams.
Brian V. Patterson, for appellant.
Fani T. Willis, District Attorney, Kevin C. Armstrong, Aslean Z.
Eaglin, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Beth A. Burton, Deputy Attorney General, Meghan H. Hill,
Clint C. Malcolm, Senior Assistant Attorneys General, Sarah J.
Thomas, Assistant Attorney General, for appellee.