315 Ga. 19 FINAL COPY
S22A0801. WILLIS v. THE STATE.
PINSON, Justice.
Stephen Willis was convicted along with four co-defendants of
crimes arising from the shooting death of Nicholas Hagood.1 On
1 The crimes occurred on April 16, 2014. On July 18, 2014, a Fulton
County grand jury indicted Willis and four co-defendants—Tavius Bates, Demetrius Fortson, Octavious Jordan, and Jeremy Southern—on eight counts each: malice murder, armed robbery, felony murder predicated on armed robbery, hijacking a motor vehicle, felony murder predicated on hijacking a motor vehicle, aggravated assault, felony murder predicated on aggravated assault, and possessing a firearm during the commission of a felony. Willis alone was also indicted for possession of a firearm by a convicted felon and felony murder predicated on that charge. The defendants were tried together before a jury from August 28 to September 8, 2017. The jury found Willis not guilty of malice murder but guilty of all other counts. The jury found Southern guilty of all counts and found Fortson, Bates, and Jordan not guilty of malice murder but guilty of the remaining counts. We affirmed Fortson’s convictions on appeal. See Fortson v. State, 313 Ga. 203 (869 SE2d 432) (2022). Willis was sentenced to life in prison for felony murder predicated on armed robbery, 20 years in prison for hijacking a motor vehicle, five years in prison for possessing a firearm as a convicted felon, and five years in prison suspended for possessing a firearm during the commission of a felony, all to run concurrently. The aggravated assault and armed robbery counts merged for sentencing purposes with the felony murder count predicated on armed robbery, and the other felony murder sentences were vacated by operation of law. On September 13, 2017, Willis filed a timely motion for new trial, which he amended twice through new counsel. After a hearing, the trial court denied the motion for new trial, as amended, on January 31, 2022. On February 1, 2022, Willis filed a appeal, Willis contends that (1) the evidence was insufficient to
sustain his convictions, (2) the trial court plainly erred by failing to
instruct the jury that the testimony of an accomplice requires
corroboration, and (3) his trial counsel was ineffective for allowing
an exhibit to be introduced that included information about his prior
encounters with law enforcement, not requesting a limiting
instruction as to how the jury could consider that felony conviction,
and failing to move to suppress the search warrant that yielded
Willis’s phone records.
We conclude that the evidence was sufficient to support Willis’s
convictions. Further, the failure to give an accomplice-corroboration
jury instruction was not plain error, because even assuming the
instruction should have been given, the failure to give it was not
likely to have affected the outcome of the trial in light of the
substantial evidence against Willis. Finally, Willis failed to
establish that he received ineffective assistance of counsel at trial.
timely notice of appeal. The case was docketed to the April 2022 term of this Court and submitted for a decision on the briefs. 2 He has not shown that he was prejudiced by the introduction of the
exhibit that showed his prior criminal history, and his counsel was
not deficient for failing to move to suppress the search warrant
because the warrant was supported by probable cause: the warrant
application relied in part on a statement from a named informant
that was against the informant’s penal interest. So we affirm.
1. The evidence at trial showed the following. On April 16,
2014, just after 12:30 p.m., Rayshon Smith was robbed at gunpoint.
Smith was outside his cousins’ apartment building in Austell, in
Cobb County, when he noticed a car driving slowly past. The car was
a silver or gray Ford Taurus with tinted windows, and Smith could
see four men inside. Smith then noticed two men walking toward
him. One of them came right up to Smith, pointed a gun at him, and
went through his pockets while looking him in the eye. The man took
Smith’s wallet, phone, and keys. The other man also had a gun but
did not come as close.
After the men left, Smith went into the apartment building and
called the police. He gave the police the number of his phone that
3 was stolen. Later, Smith identified Willis’s co-defendant Jeremy
Southern in a photo array as the man who had been closest to him
during the robbery.
About a half-hour later, at around 1:00 p.m., Joseph James was
at home in his apartment in Fulton County, not far from where
Smith was robbed. James was looking out the window into the
parking lot when he noticed two cars pulling up. One of the cars,
which was driven by Hagood, pulled into a parking space. The other
car wedged behind it. When Hagood got out of the car, he seemed
“out of place” and “slightly disoriented.” James saw Hagood and a
man with dreadlocks standing next to the car that Hagood had been
driving, while a third man remained in that car. Four or five men
were in the other car. As James watched, Hagood appeared to check
his pockets, and then appeared to mouth “I don’t have anything” or
“I don’t have it” to the man with dreadlocks. The man with
dreadlocks appeared to “check” Hagood, “like trying to figure out
does he have something.” At that point, one of the men from the
second car got out, holding a gun, and moved toward Hagood and
4 the man with dreadlocks. Hagood tried to run. James heard a
gunshot. The medical examiner testified at trial that Hagood was
killed by a gunshot wound to the back.
James called 911 at 1:16 p.m. Later, when shown photo arrays,
James identified Southern as the man with the gun and another of
Willis’s co-defendants, Tavius Bates, as the man with dreadlocks
who had been speaking to Hagood.2
Detective Scott Demeester, the lead investigator on the case,
arrived at the scene at around 1:45 p.m. Detective Demeester
contacted Hagood’s wife, who told him that Hagood normally would
have a cell phone and a car, neither of which was found at the crime
scene. Hagood’s wife gave the detective Hagood’s cell-phone number
and the tag number for his white Toyota Corolla. Detective
Demeester put out alerts for both the phone and the car.
At the murder scene, police found a wallet and set of keys
belonging to Smith, who had recently been robbed nearby. Detective
2 At trial, James admitted that he was “troubled” when he identified
Bates in the photo array, because the photo of Bates in the array did not show him with a dreadlocks hairstyle. See Fortson, 313 Ga. at 210 (1). 5 Demeester contacted Smith and learned that his cell phone had been
stolen in the robbery. The detective then subpoenaed the phone
records associated with Smith’s stolen phone, as well as those
associated with Hagood’s missing phone.
The records from Hagood’s phone showed that after the
shooting, at 1:29 p.m., someone sent a text message to Hagood’s
phone. But that message was not received until 3:10 p.m., indicating
that the phone was powered off or otherwise disconnected in the
interim. When Hagood’s phone finally received the message, it
“pinged” off a cell tower in the area of an apartment complex on
Kelly Lake Road in Decatur. The aunt of one of Willis’s co-
defendants, Octavious Jordan, lived in that apartment complex.
Jordan himself was living at a nearby hotel, and Southern lived in
the area too. A maintenance man from the Kelly Lake Road
apartment complex testified that he had seen Hagood’s white Toyota
Corolla and the defendants’ silver Ford Taurus parked at that
apartment complex later in the week, after the shooting. Hagood’s
car was eventually recovered in the same area.
6 The records from Smith’s cell phone showed that someone used
it several hours after it was stolen to call Metro PCS customer
service to unlock it. After it was unlocked, the phone was used to
place and receive calls and text messages to and from people the
phone had never been used to contact before it was stolen. The new
contacts included Jordan’s girlfriend, Willis, Southern, and a phone
number belonging to the mother of the fourth co-defendant,
Demetrius Fortson, who often used his mother’s phone. Police
searched the phone of another of the new contacts in Smith’s phone,
Dionte Wooten, and found that Smith’s number was saved in
Wooten’s phone under Jordan’s nickname, “Tay Tay.”
Jordan and Bates were arrested and interviewed. Portions of
their statements were played for the jury. In Jordan’s interview, he
admitted that he was present at the armed robbery of Smith, that
he took Smith’s phone (and later sold it), and that he then drove to
another location where a “white man” was robbed. Bates, in his
statement, admitted that he was present at both the robbery of
Smith and the shooting of Hagood. Neither Jordan nor Bates
7 mentioned Willis or any other co-defendant in the redacted portions
of their statements that were played at trial.
In the portion of Jordan’s interview that the jury did not hear,
Jordan identified Willis and the other co-defendants. Using that
information, Detective Demeester obtained a search warrant for the
cell-phone records of Willis, Bates, Jordan, and Southern, as well as
of Fortson’s mother. From those records, detectives put together a
timeline of the defendants’ whereabouts and phone activities on the
day of the crimes.
The cell-phone evidence showed the following. On the morning
of the crimes, Willis, Jordan, and Southern were in contact with each
other. Jordan and Southern started out in the area of Decatur where
they both lived, and Willis started out somewhere west of Stone
Mountain. Shortly after 10:30 a.m., Jordan and Southern drove
north on I-285 toward Stone Mountain Highway, then east on the
highway toward Stone Mountain. Jordan and Southern called Willis
at 10:48 a.m. and 10:59 a.m., respectively; all three phones pinged
off the same cell tower near Stone Mountain. A little later, Jordan
8 and Southern drove west on Stone Mountain Highway and south on
I-285, heading back the way they had come. (There was no testimony
about Willis’s phone activity during that period.) At 12:05 p.m.,
Southern called Fortson’s mother’s phone while Southern was
approaching Fortson’s home in southeast Atlanta.
A short time later, just after Smith was robbed, Jordan
received a call at 12:37 p.m., and Willis made and received calls at
12:43 p.m. and 12:47 p.m., all in the area of the robbery. Southern’s
phone pinged off a cell tower in the same area at the same time.
Likewise, minutes before Hagood was killed, Willis, Jordan, and
Southern all made calls near the murder scene.
The phones went silent for a time after the murder. Then at
1:47 p.m., Willis made a call near Fortson’s home. The other four
defendants’ phones all pinged off the same cell tower around that
time. At 2:11 p.m., Southern called Willis from near Southern’s
home. All five defendants’ phones pinged off cell towers in the same
area that afternoon—as did Hagood’s stolen phone, at 3:10 p.m.
Detective Demeester testified that in the six-week period for
9 which he reviewed Willis’s phone records, the day of the crime was
the only time Willis’s phone pinged near either Fortson’s home or
Jordan’s and Southern’s homes.
Willis was arrested at the home of his girlfriend in Austell. He
was found hiding in a bedroom closet. Police seized his cell phone;
Willis later denied having the cell-phone number that was
associated with that phone. He also denied knowing Jordan,
although one of the contacts in his phone was listed under Jordan’s
nickname with the phone number of Jordan’s girlfriend.
None of the defendants testified at trial.
2. Willis contends that the evidence was not sufficient to
sustain his convictions. Relying on OCGA § 24-14-6, he argues that
the evidence that he was a party to the crimes, which was entirely
circumstantial, did not exclude all reasonable hypotheses other than
his guilt.3
3 Although Willis cites Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781,
61 LE2d 560) (1979), he makes no argument about the constitutional sufficiency of the evidence, relying instead solely on his arguments under OCGA § 24-14-6. 10 A conviction can rest on circumstantial evidence alone if that
evidence “exclude[s] every other reasonable hypothesis save that of
the guilt of the accused.” OCGA § 24-14-6. See Davenport v. State,
309 Ga. 385, 388 (1) (846 SE2d 83) (2020). Not every hypothesis is a
“reasonable” one, and the evidence “need not exclude every
conceivable inference or hypothesis,” only the reasonable ones.
Graves v. State, 306 Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation
and punctuation omitted; emphasis in original). The questions
whether any alternative hypotheses are reasonable and whether the
circumstantial evidence excludes any such hypotheses are for the
jury. Id. See also Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d
855) (2009). And we will not disturb the jury’s findings on those
questions unless they are “insupportable as a matter of law.” Graves,
306 Ga. at 487 (1) (citation and punctuation omitted).
A jury may find a defendant guilty beyond a reasonable doubt
if the evidence shows either that he directly committed the crime or
that he was a “party thereto.” See OCGA § 16-2-20 (a). A person is a
party to the crime if he aids or abets in its commission or if he
11 “advises, encourages, hires, counsels, or procures another” to
commit it. Id. at (b) (4). See also Carter v. State, 314 Ga. 317, 319 (2)
(a) (877 SE2d 170) (2022). And although the defendant’s mere
presence at the scene is not enough to convict him as a party to the
crime, the jury may infer his criminal intent from his “presence,
companionship, and conduct before, during, and after the offense.”
Jones v. State, 314 Ga. 214, 231-32 (3) (875 SE2d 737) (2022)
(citation and punctuation omitted).
Here, there was sufficient evidence for the jury to find both that
Willis’s co-defendants directly committed the crimes and that Willis
was guilty as a party to the crimes. To begin with, as Willis concedes,
there was direct evidence that his co-defendants committed the
crimes. A witness to the murder, James, identified Southern as the
shooter and Bates as the second person who confronted Hagood.
Jordan also admitted to his own participation. See Thrift v. State,
310 Ga. 499, 502 (1) (852 SE2d 560) (2020) (confessions are direct
evidence of guilt); Jackson v. State, 307 Ga. 770, 772 (838 SE2d 246)
(2020) (eyewitness testimony is direct evidence of guilt). And ample
12 circumstantial evidence corroborated these accounts. After the
murder, Hagood’s stolen phone pinged in the area where Bates,
Fortson, and Southern all lived, and Hagood’s stolen car was
recovered in the same area. See Carter v. State, 305 Ga. 863, 867 (2)
(828 SE2d 317) (2019) (circumstantial evidence of guilt included the
location of the victim’s phone after the victim’s death). In addition,
there was evidence suggesting that the men who shot Hagood were
the same men who had earlier robbed Smith—Smith’s stolen wallet
and keys were found at the murder scene—and from that inference
flowed further evidence implicating the group. Smith identified
Southern as one of the robbers, and after the murder, Jordan used
Smith’s stolen phone and later sold it. See Eckman v. State, 274 Ga.
63, 65 (1) (548 SE2d 310) (2001) (circumstantial evidence of guilt
included defendant’s use of “the fruits of the multi-county crime
spree”).
There was also sufficient evidence from which the jury could
find that Willis was part of the group that committed the crimes.
Both eyewitnesses, James and Smith, saw at least four men at the
13 respective crime scenes. Willis’s cell-phone records offered strong
support that he was one of those men. The phone records showed not
only that Willis was near the location of both crimes at the time they
were committed, but also that he moved around the city with his co-
defendants after the crimes, and that he was in communication with
them throughout the day. Willis called or texted with Southern and
Jordan in the morning as the latter two drove toward Stone
Mountain, where Willis started his day. Later, Willis’s phone was
used in the area where Smith was robbed, and shortly thereafter, it
was used again near where Hagood was murdered. Still later, his
phone was active near Fortson’s home, and then near Jordan’s and
Southern’s homes—as were the phones of all his co-defendants.
Detective Demeester testified that the day of the crimes was the only
day in a six-week span in which Willis’s phone pinged near
Fortson’s, Jordan’s, or Southern’s homes. And when Willis was
arrested, he denied having the phone number associated with the
phone in his possession, and denied knowing Jordan despite
evidence to the contrary.
14 This evidence authorized the jury to reject as unreasonable the
hypotheses that Willis urges on appeal—that he was merely present
at the scene of Hagood’s murder, and that when his phone pinged
near the Smith robbery, he was actually at his girlfriend’s home
nearby. See OCGA § 24-14-6; Poole v. State, 312 Ga. 515, 522-23 (863
SE2d 93) (2021). See also Copeland v. State, 314 Ga. 44, 46-47 (2)
(875 SE2d 636) (2022) (evidence of guilt included cell-site location
data that placed defendant at scene of crime and corroborated
witness’s account). The jury instead could have inferred Willis’s
criminal intent from his presence at the crime scenes, his
companionship and communication with the group before and after
the crimes, and his later disavowal of both his own cell-phone
number and of knowing Jordan. See Jones, 314 Ga. at 232 (3).
Compare Taylor v. State, 297 Ga. 132, 135 (2) (772 SE2d 630) (2015)
(evidence of guilt insufficient when only corroborating evidence of
defendant’s participation was testimony of one witness who saw
defendant in co-defendant’s car some time later). Because the jury’s
finding was not insupportable as a matter of law, we do not disturb
15 it. Graves, 306 Ga. at 487 (1).
3. Willis contends that the trial court erred by failing to give a
jury instruction about the statutory requirement of accomplice
corroboration. Under OCGA § 24-14-8, “[t]he testimony of a single
witness is generally sufficient to establish a fact”; but in a felony
case, if “the only witness is an accomplice,” then the testimony of
that witness “shall not be sufficient” and requires corroboration. The
“corroboration requirement applies even when the accomplice does
not testify in court, if his statements are admitted through another
witness.” Finney v. State, 311 Ga. 1, 10 (2) (b) (855 SE2d 578) (2021).
In Willis’s view, the accomplice-corroboration instruction should
have been given in light of the out-of-court statements from Bates
and Jordan that were played at trial.
(a) The trial court gave several jury instructions that related
to the co-defendants’ out-of-court statements. First, the court
instructed the jury that the testimony of a single witness is enough
to establish a fact. Then the trial court began to tell the jury that an
“exception” to this rule exists when the witness is an accomplice, in
16 which case the accomplice’s testimony must be supported by some
other evidence. But the State objected to that charge, arguing that
it was an “improper charge for this case,” and the trial court agreed,
saying, “Strike that. Strike that.” Finally, the trial court instructed
the jury that it could consider each of the co-defendants’ out-of-court
statements only against the defendant who had made the statement.
(b) Willis did not object at trial to the failure to give an
accomplice-corroboration instruction, so we review the claim for
plain error. See Harris v. State, 313 Ga. 872, 879 (3) (874 SE2d 73)
(2022). To show plain error, an appellant must show that (1) the
alleged error was not affirmatively waived, (2) it was obvious beyond
reasonable dispute, and (3) it affected the appellant’s substantial
rights, which ordinarily means showing that it affected the outcome
of the trial. See Hawkins v. State, 304 Ga. 299, 302 (3) (818 SE2d
513) (2018). Finally, if those three prongs are satisfied, an appellate
court has the discretion to remedy the error only if the error
“seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings.” Id. at 302 (citation and punctuation omitted).
17 Pretermitting whether it was error for the trial court not to
give an accomplice-corroboration jury instruction in this case, Willis
has not shown that the failure to give the instruction likely affected
the outcome of his trial. As we recounted in Division 2, ample
evidence of Willis’s guilt did not come from Jordan’s and Bates’s
statements, including eyewitnesses identifying his co-defendants as
the direct perpetrators of the crimes, and cell-phone records placing
Willis at the crime scenes and underscoring that he and his co-
defendants were in communication with each other and in each
other’s presence throughout the day. The evidence against him did
not rely entirely, or even significantly, on the statements from
Jordan and Bates. See Payne v. State, 314 Ga. 322, 326 (1) (877 SE2d
202) (2022) (failure to give accomplice-corroboration instruction did
not likely affect outcome of trial in light of significant evidence of
guilt other than accomplice testimony); Hawkins, 304 Ga. at 303 (3)
(same). Compare State v. Johnson, 305 Ga. 237, 241 (824 SE2d 317)
(2019) (“because virtually all of the incriminating evidence flowed
from [an accomplice], the outcome of the trial court proceedings was
18 ‘likely affected’ by the trial court’s failure to provide an accomplice
corroboration charge”) (emphasis supplied). Indeed, the only
portions of Bates’s and Jordan’s statements that were played at trial
made no mention of Willis, and did not connect him to the crimes.
Cf. Pindling v. State, 311 Ga. 232, 236 (2) (857 SE2d 474) (2021)
(statute requires accomplice-corroboration instruction “if there is
evidence that could support a finding that a witness was an
accomplice to the crime, and that witness provides testimony that
directly links the defendant to the crime”). Moreover, the trial court
instructed the jury to consider Bates’s and Jordan’s statements only
against the men who made them—Bates and Jordan, respectively—
and “[q]ualified jurors under oath are presumed to follow the trial
court’s instructions.” Holland v. State, 314 Ga. 181, 192 (3) (b) (875
SE2d 800) (2022) (citation and punctuation omitted). Given the
significant other evidence against Willis, and the minimal degree to
which Bates’s and Jordan’s statements implicated him, Willis has
not shown that the failure to give an accomplice-corroboration
instruction likely affected the outcome of his trial. Without that
19 showing, we find no plain error. See Hawkins, 304 Ga. at 302 (3).
4. Willis contends that his trial counsel rendered
constitutionally ineffective assistance in a number of ways.
To succeed on a claim of ineffective assistance, a defendant
must establish both that his counsel’s performance was deficient
and that he was prejudiced as a result of that deficient performance.
See Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022)
(citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt
2052, 80 LE2d 674) (1984)). To establish deficient performance, a
defendant must establish that counsel “performed his duties in an
objectively unreasonable way, considering all the circumstances and
in the light of prevailing professional norms.” Id. (citation and
punctuation omitted). To overcome the “strong presumption” that
counsel performed reasonably, the defendant must show that “no
reasonable lawyer would have done what his lawyer did, or would
have failed to do what his lawyer did not.” Id. (citation and
punctuation omitted). And counsel’s decisions about trial tactics and
strategy in particular may not form the basis of an ineffectiveness
20 claim unless they were “so patently unreasonable that no competent
attorney would have followed such a course.” Id. (citation and
punctuation omitted). To establish prejudice, a defendant must
establish that there is a “reasonable probability that, but for
counsel’s deficiency, the result of the trial would have been
different.” Id. A reasonable probability is a probability “sufficient to
undermine confidence in the outcome” of the trial. Neal v. State, 313
Ga. 746, 751 (3) (873 SE2d 209) (2022) (citation and punctuation
omitted).
If the defendant fails to satisfy either part of the
Strickland test, his claim fails, and we need not address the other
part. Washington, 313 Ga. at 773 (3). Finally, when reviewing
ineffective-assistance claims, we accept the trial court’s factual
findings unless clearly erroneous, but we independently apply legal
principles to the facts. See Lyons v. State, 309 Ga. 15, 25 (8) (843
SE2d 825) (2020).
(a) Willis first contends that trial counsel was ineffective for
failing to limit the jury’s access to State’s Exhibit 115, a certified
21 copy of Willis’s 2013 felony conviction (by guilty plea) for possession
of cocaine. The State introduced the exhibit to establish that Willis
was a previously convicted felon. But the exhibit also showed Willis’s
misdemeanor convictions from the same incident for possession of
marijuana and obstructing a law enforcement officer. The narrative
of the incident described Willis jumping off a second-floor balcony to
avoid arrest. In addition, the exhibit showed that three days before
the cocaine-possession incident, Willis had an arrest warrant issued
for battery and obstructing a 911 call, and that he had had his bond
revoked as a result. Willis argues that counsel should have
stipulated to his status as a convicted felon to prevent the jury from
seeing the full exhibit.
Even assuming counsel’s performance was deficient for the
reasons Willis gives, Willis has failed to establish prejudice. A
defendant may be prejudiced by the admission of a prior conviction
into evidence when the “prior conviction is of the nature likely to
inflame the jury’s passions and raise the risk of a conviction based
on improper considerations.” Parker v. State, 309 Ga. 736, 745 (5)
22 (848 SE2d 117) (2020) (citation and punctuation omitted). But here,
the material in Exhibit 115—information about Willis’s
misdemeanor convictions for possession of marijuana and
obstructing a law enforcement officer, the narrative of him jumping
off a balcony to elude arrest, and the booking report showing his
arrest for battery and the revocation of his bond—was relatively
mild compared to the crimes with which Willis was charged—
murder, armed robbery, and carjacking, among others. Because
such information was unlikely to “inflame the jury’s passions”
against him, and the evidence against Willis was strong, Willis has
not established a reasonable probability that the result of his trial
would have been different if his counsel had prevented the exhibit
from being introduced in full. See id. at 744-47 (5) (in a murder case,
defendant not prejudiced by counsel’s failure to stipulate to
convicted felon status, because evidence of guilt was strong and
jury’s passions were unlikely to be inflamed by prior convictions for
aggravated robbery and bringing prohibited item into government
facility); Moore v. State, 306 Ga. 532, 534-35 (2) (b) & n.2 (832 SE2d
23 384) (2019) (same, with past convictions for possession of marijuana,
eluding a police officer, and driving violations); Ballard v. State, 297
Ga. 248, 252-53 (6) (a) (773 SE2d 254) (2015) (same, with past
convictions for aggravated assault and burglary with intent to
commit aggravated assault). So Willis’s claim of ineffective
assistance on this ground fails.
(b) In a related enumeration, Willis contends that his trial
counsel was ineffective for failing to request a jury instruction
limiting the jury’s use of Exhibit 115 to establishing Willis’s status
as a convicted felon (and for failing to object when the trial court’s
jury charge did not include that limiting instruction). But Willis has
not shown a reasonable probability that the result of his trial would
have been different if the trial court had given that instruction. As
we explained in Division 4 (a), the evidence against Willis was
strong, and the information in Exhibit 115 was relatively mild
compared to the crimes with which he was charged. So the jury
knowing all of that information—rather than knowing only that
Willis was a convicted felon—was not reasonably likely to change
24 the verdict. By the same token, the absence of an instruction
allowing the jury to consider the information in Exhibit 115 only for
the purpose of establishing that Willis was a convicted felon was not
reasonably likely to change the verdict. Willis’s claim of ineffective
assistance on this ground fails, too.
(c) Finally, Willis contends his trial counsel was ineffective for
failing to move to suppress search warrant SW-007220, which
authorized the seizure of his cell-phone records. Willis contends that
the warrant, which he introduced into evidence at the hearing on
the motion for new trial, was not supported by probable cause
because it rested on the uncorroborated statement of his co-
defendant, Jordan.
A magistrate may issue a search warrant upon the sworn
application of a law enforcement officer that (1) sets forth “facts
sufficient to show probable cause that a crime is being committed or
has been committed” and (2) “particularly describes the place or
person, or both, to be searched and things to be seized.” OCGA § 17-
5-21 (a). To determine whether probable cause exists, the magistrate
25 must review the search-warrant application and “make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit before him, there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.” Johnson v. State, 310 Ga. 685, 694 (4) (b) (853 SE2d 635)
(2021) (citation and punctuation omitted). The magistrate’s decision
to issue the warrant is entitled to “substantial deference” by a
reviewing court, whose task is to determine if the magistrate had a
“substantial basis” for concluding that probable cause existed. Id.
(citations and punctuation omitted). And we have held that “when a
named informant makes a declaration against penal interest and
based on personal observation, that in itself provides a substantial
basis for the magistrate to credit that statement.” Graddy v. State,
277 Ga. 765, 766 (1) (596 SE2d 109) (2004) (citation and punctuation
omitted; emphasis in original). See also id. (“inculpatory statements
that are made by a known or identified informant can establish
probable cause for issuance of a search warrant”).
Here, Willis has not met the high burden required to overturn
26 the magistrate’s probable-cause determination, or, by extension, to
suppress warrant SW-007220. See Johnson, 310 Ga. at 694 (4) (b).
In the probable-cause affidavit supporting the warrant application,
Detective Demeester described how he identified Jordan as the
possessor of Hagood’s stolen cell phone, and how Jordan, in his
interview, identified Willis and the other co-defendants, admitted
that he was the driver of the group’s car at the robbery of Smith, and
admitted that he was the driver of one of the group’s cars when
Hagood was killed. In other words, Jordan, a named informant, gave
a statement against his penal interest and based on his personal
knowledge. That statement by itself provided a substantial basis for
a magistrate to find probable cause. See Graddy, 277 Ga. at 766 (1).
Moreover, Jordan’s statement was not the only evidence supporting
the warrant application. The affidavit also attested that Willis’s
number appeared in Smith’s stolen cell phone, which tended to
confirm that, at the very least, he knew the person who had stolen
it.
Because the magistrate had a “substantial basis” for
27 concluding that probable cause existed, a motion to suppress would
have been meritless. And failing to file a meritless motion to
suppress is not deficient performance. See, e.g., Keller v. State, 308
Ga. 492, 499 (2) (c) (842 SE2d 22) (2020). So Willis’s final claim of
ineffective assistance fails.
Judgment affirmed. All the Justices concur, except Peterson, P. J., not participating.
Decided October 25, 2022.
Murder. Fulton Superior Court. Before Judge Krause.
Matthew K. Winchester, William N. Kelbaugh, for appellant.
Fani T. Willis, District Attorney, Lyndsey H. Rudder, Kevin C.
Armstrong, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, Parisa
F. Sarfarazi, Assistant Attorney General, for appellee.