312 Ga. 771
Ga.2021Background
- Jabarri Ash was tried and convicted of malice murder and related firearm offenses for the February 21, 2013 shooting death of Mario Shaw; life sentence imposed.
- Dispute stemmed from drug-distribution conflicts involving Shaw, Ash, and Ash’s brother; multiple witnesses testified Ash was angry with Shaw and had motive to retaliate.
- Witness Minor (tipster) told police and later testified that Ash confessed in Florida to shooting Shaw twice with a .38/.44 revolver; other evidence (no shell casings, autopsy ballistics) was consistent with a revolver.
- Several witnesses (Denise and Letavia Gowdy, security guard Cook) placed “Big Boy” and a white SUV near Shaw’s apartment the night of the murder; Ash’s alibi evidence was inconsistent and his girlfriend washed or discarded his clothes that night.
- The State introduced Ash’s 2009 convictions for aggravated assault as other-act evidence; the victim Shaw’s out-of-court statements to Terrell were admitted under OCGA § 24-8-807; police destroyed Ash’s seized cell phone before trial.
- Ash raised multiple challenges on appeal: 404(b) other-act admission, Rule 807 hearsay admission, destruction of alleged exculpatory evidence, omitted jury instructions (confession and accomplice corroboration), and cumulative error.
Issues
| Issue | Ash’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admission of 2009 convictions under OCGA § 24-4-404(b) | Evidence was improper propensity/other-act proof and unduly prejudicial | Evidence relevant to intent/motive; limiting instructions given | Even if erroneous, admission harmless given other strong evidence and jury instruction limiting use to intent; conviction affirmed |
| Admission of Shaw’s statements to Terrell under Rule 807 | Statements lacked sufficient guarantees of trustworthiness for residual hearsay | Statements were material, more probative than other evidence, declarant unavailable, and had trustworthiness (close longtime friendship) | No abuse of discretion; admission proper under § 24-8-807 |
| Destruction of Ash’s cell phone (due process) | Phone contained an exculpatory photo/alibi; destruction in bad faith denied opportunity to obtain metadata | No apparent exculpatory value to officers; mishandling was negligent, not bad faith | No due process violation: Ash failed to show the phone’s exculpatory value was apparent or police acted in bad faith |
| Jury instruction on confession corroboration (pattern instruction omitted) | Omission was plain error because jury wasn’t told an uncorroborated confession cannot alone convict | Charge otherwise instructed jury to test believability; omission not clearly established error under current law | No plain error: omission not clearly and obviously erroneous; no relief granted |
| Accomplice-corroboration instruction (Terrell/Minor) | Trial court should have sua sponte charged that accomplice testimony requires independent corroboration | No evidence Terrell or Minor were accomplices (no shared intent or aiding the murder); no request made | No plain error: record lacked basis to treat witnesses as accomplices requiring that instruction |
Key Cases Cited
- Taylor v. State, 306 Ga. 277 (review standard when assessing assumed harmless error)
- Jackson v. State, 306 Ga. 69 (harmless-error test for nonconstitutional evidentiary rulings)
- Jacobs v. State, 303 Ga. 245 (guidance on interpreting Rule 807 and borrowing federal law)
- Holmes v. State, 304 Ga. 524 (vacatur/remand where trial court applied wrong standard under Rule 807)
- Kirby v. State, 304 Ga. 472 (limits on using other-act evidence under OCGA § 24-4-404(b))
- Hill v. State, 308 Ga. 638 (analysis of lost/destroyed evidence and bad-faith requirement)
- Krause v. State, 286 Ga. 745 (materiality standard for destroyed evidence)
- Arizona v. Youngblood, 488 U.S. 51 (Supreme Court rule requiring bad faith to establish due-process violation for lost evidence)