Cortez Bell v. The State; Darryl Oliver v. The State
No. S26A0188; No. S26A0483
Supreme Court of Georgia
June 30, 2026
On Appeal from the Superior Court of Fulton County, No. 18SC156677
BETHEL, Justice.
BETHEL, Justice.
Following a joint trial, Darryl Oliver was convicted of malice murder and other crimes, and Cortez Bell was convicted of felony murder and other crimes in connection with the shooting death of Daronald Wilkerson.1 On appeal, Oliver and Bell both
1.
Viewed in the light most favorable to the verdicts, the evidence presented at trial was as follows. On the day of the crimes, Oliver and Bell were playing basketball at a local park with a group of acquaintances. At some point, Oliver and Bell got into a car with Wilkerson and two others — Equawn Marshall and Malik Murphy — and the group went to a gas station. When they arrived, they parked at a gas pump and Marshall and Bell exited the car. Marshall then began walking toward the station‘s convenience store. Bell, however, pulled a gun, pointed it at Oliver, and stated his intention to rob Oliver. Oliver then got out of the car and pointed his own firearm at Bell. Wilkerson and Murphy urged the two men to “chill” and not to shoot. Wilkerson, who was unarmed, then moved to grab Oliver. According to Oliver, he fired in response, shooting Wilkerson. Wilkerson then
Wilkerson sustained a total of six gunshot wounds and died from gunshot wounds to his torso. The medical examiner testified that Wilkerson had been shot six times and that, although he might have survived three of the gunshot wounds with appropriate medical care, the other three gunshot wounds hit internal organs and would have caused severe bleeding.
The shooting was witnessed by a local restaurant owner, as well as a former law enforcement officer who was inside the gas station at the time of the shooting. Both saw Oliver firing at two men, who were running away from the scene, before firing two shots into a vehicle. The former law enforcement officer followed Oliver when he fled the scene and took pictures of Oliver, which were introduced into evidence at trial. Both Murphy and the former law enforcement officer identified Oliver in a photographic lineup as the shooter.
Surveillance footage from the gas station and from a nearby video monitoring system, which captured parts of the incident, was introduced into evidence and played for the jury at trial. Police recovered nine-millimeter shell casings, a bullet fragment, and a live nine-millimeter round at the scene, and two nine-millimeter bullets were recovered from Wilkerson‘s body, all of which were determined to have been fired from the same gun, though the gun was not recovered.
2.
Oliver first argues that the evidence was not sufficient as a matter of federal constitutional due process to support his conviction for malice murder.2 In particular, he argues that he was justified in firing the first round of shots, based on his testimony that he fired the first round when Wilkerson tried to grab him, and asserts that the State failed to prove that Wilkerson died as a result of the allegedly non-justified second round of shots rather than the first. So, his argument goes, absent conclusive evidence that Wilkerson died as a result of the second round of shots, the State failed to disprove his claim of self-defense. This argument fails.
When evaluating the sufficiency of the evidence as a matter of constitutional due process, we view the evidence in the light most favorable to the jury‘s verdict and ask whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
This Court will uphold the jury‘s verdict as long as there is some competent evidence, even if contradicted, to support each fact necessary to make out the State‘s case. When a defendant presents evidence that he was justified in using deadly force, the State bears the burden of disproving the defense beyond a reasonable doubt. It is the role of the jury to evaluate the evidence and, when doing so, the jury is free to reject any evidence in support of a justification defense and to accept the evidence that
Williams v. State, 316 Ga. 147, 150 (2023) (cleaned up).
Here, regardless of whether Wilkerson‘s death was caused by the first or second round of shots, the evidence was sufficient to authorize the jury to reject Oliver‘s claim of self-defense. Indeed, there was no evidence showing that, at the time of the shootings, Wilkerson was armed or that Oliver was otherwise in danger from Wilkerson‘s “imminent use of unlawful force” which was “likely to cause death or great bodily harm.”
3.
As we understand his remaining enumeration of error, Oliver alleges that the district attorney engaged in prosecutorial misconduct by indicting him jointly with Bell, which, he argues, led to a confusing indictment and constituted a violation of his right to due process.3 However, “a claim of prosecutorial misconduct generally must be raised at trial in order to be preserved for appellate review.” Troutman v. State, 320 Ga. 489, 492 (2024). Because Oliver raised this argument for the first time on appeal, it is not preserved for appellate review. See id. at 492–93 (concluding that appellant failed to preserve claim of prosecutorial misconduct based on alleged improper allegations in appellant‘s indictment where he failed to raise issue in the trial court); Whatley v. State, 270 Ga. 296, 302 (1998) (“A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” (quotation
Case No. S26A0188
4.
Bell first argues that the evidence was not sufficient as a matter of federal constitutional due process to support his conviction for felony murder because, he says, the State failed to show that his conduct was the legal or proximate cause of Wilkerson‘s death. He also argues that the State failed to establish that Wilkerson‘s death occurred in the commission of the attempted robbery, the predicate felony for the felony murder count. We address — and reject — these arguments in turn.
(a) “A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.”
In challenging the sufficiency of the evidence to establish
For purposes of felony murder, where there is an intervening act between the criminal conduct at issue and the death, the proximate cause standard is satisfied so long as the intervening act was “itself a natural or probable consequence of the defendant‘s conduct.” Melancon, 319 Ga. at 750. See also Eubanks, 317 Ga. at 570 (“an intervening act is reasonably foreseeable if … it may ensue in the ordinary course of events, or if it was set in motion by the original wrong-doer” (cleaned up)). For example, “intentional actions by someone other than the defendant who could reasonably be expected to take that action in response to the criminal conduct” are reasonably foreseeable. Eubanks, 317 Ga. at 570. And such reasonably foreseeable actions include the use of force by an intended victim. See id.; Robinson v. State, 298 Ga. 455, 456, 458–59 (2016) (defendant guilty of felony murder when his accomplice was fatally shot by a store owner they were attempting to rob).
Here, the trial evidence was sufficient to authorize a finding that Bell‘s commission of the armed robbery proximately caused Wilkerson‘s death. The evidence described above supported a finding that Bell and Wilkerson acted together as parties to the attempted robbery of Oliver. We have repeatedly held that the use of force by an intended victim is a foreseeable response to a violent crime like armed robbery. See Eubanks, 317 Ga. at 570. And that is precisely what happened here. As the
(b) Bell further argues that the second round of shots was fired after his attempted armed robbery of Oliver was complete such that the State failed to present sufficient evidence to prove the “in the commission of” element of felony murder. See Eubanks, 317 Ga. at 568 (“[I]n keeping with the statutory language [of
We have said that “a death is caused ‘in the commission of’ a predicate felony if the cause of death is ‘within the res gestae’ of the predicate felony.” Eubanks, 317 Ga. at 572 (quoting Lee v. State, 270 Ga. 798, 801 (1999)). This means that the cause of death must be “concurrent with” the defendant‘s commission of the predicate felony “in time and circumstances.” Id. (quotation marks omitted). Thus, for purposes of felony murder, the defendant‘s death-causing conduct must occur before the commission of the felony is at an end for it to be “in the
Applying the above legal principles to this case, we conclude that there was sufficient evidence from which a reasonable juror could have concluded that Bell caused Wilkerson‘s death “in the commission of” the attempted armed robbery, even if Wilkerson died as a result of Oliver‘s later gunshots, which were fired as Bell and Murphy were retreating. As explained above, the trial evidence supported a finding that Bell and Wilkerson worked together as parties to the armed robbery of Oliver. And the jury was not required to find that the attempted armed robbery was at an end simply because Bell, one of the parties to the crime, appeared to be retreating when Oliver fired the final shots in Wilkerson‘s direction. In short, the evidence authorized the conclusion that the cause of Wilkerson‘s death was “sufficiently connected in time, place, and
5.
In his remaining enumeration of error, Bell argues that his trial counsel rendered constitutionally ineffective assistance by failing to move to sever Bell‘s trial from Oliver‘s or to request jury instructions on third-party independent criminal acts as a superseding cause.
To succeed on his claim that counsel was constitutionally ineffective, Bell bears the burden of showing both that his attorney‘s performance was deficient and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). As to deficient performance, Bell must demonstrate this his trial counsel‘s performance was objectively unreasonable under the circumstances and in light of prevailing professional norms. Id. at 688–90. And as to prejudice, Bell must show a reasonable probability that, absent counsel‘s errors, the result of the trial would have been different. Id. at 694. “Failure to satisfy either prong of the Strickland test is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon this Court to examine the other prong.” Green v. State, 302 Ga. 816, 818 (2018) (quotation marks omitted). For the reasons explained below, we conclude that Bell has failed to meet his burden.
When presented with a motion to sever, a trial court should consider “whether a joint trial will create confusion of evidence and law; whether there is a danger that evidence implicating one defendant will be considered against a co-defendant despite limiting instructions; and whether the defendants are asserting antagonistic defenses.” Shells v. State, 323 Ga. 527, 543 (2026) (quotation marks omitted). “Whether to seek severance is a matter of trial strategy, and 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.” Green, 302 Ga. at 819 (quotation marks omitted). See also Lupoe v. State, 300 Ga. 233, 241 (2016). “[T]rial counsel‘s decision in this respect would constitute deficient performance only if it was so unreasonable that no competent attorney would have made that decision.” McCabe v. State, 319 Ga. 275, 289 (2024) (quotation marks omitted).
In arguing that severance was warranted, Bell focuses on Oliver‘s pursuit of an antagonistic defense that sought to shift blame onto Bell by highlighting Bell‘s attempt to rob Oliver. But the mere fact that co-defendants pursued antagonistic defenses “is insufficient to require severance, because unless there is a showing of resulting prejudice, antagonistic defenses do not automatically require a severance.” Lupoe, 300 Ga. at 242
At the hearing on the motion for new trial, Bell‘s trial counsel testified that he considered moving to sever in this case but decided not to because he believed that a joint trial at which Bell could shift blame for Wilkerson‘s death onto Oliver would be beneficial to Bell‘s defense. And under the circumstances of this case, where it was undisputed that Oliver was the actual shooter, that was an objectively reasonable strategy. See id. (counsel reasonably decided not to seek severance because having “somebody else sitting at the table during the trial” that he “could point the finger at” could benefit his defense); Wells v. State, 307 Ga. 773, 777 (2020) (failure to file a motion to sever was not objectively unreasonable where “trial counsel testified that he did not file a motion to sever because he believed that the evidence against [the appellant] was more substantial than evidence against his co-defendants, the best trial strategy was to deflect blame on them, and this strategy would work best if the other co-defendants were present“). Given the foregoing, Bell has failed to carry his burden of establishing that his trial counsel‘s strategic decision not to file a motion to sever was objectively unreasonable. Accordingly, this ineffective assistance claim fails.
(b) Bell next argues that trial counsel was ineffective in failing to request jury instructions on third-party independent
Judgments affirmed. All the Justices concur.