MUSE v. THE STATE
S23A0316
In the Supreme Court of Georgia
Decided: June 21, 2023
S23A0373. HARRIS v. THE STATE. S23A0427. HARRIS v. THE STATE.
BOGGS, Chief Justice.
Appellants Durell Muse, Darious Harris, and Jujuane Harris, Darious‘s brother, appeal from their convictions following a joint trial for malice murder and other crimes stemming from the shooting death of Antonio Clements, the shooting of Clements’ girlfriend, Kendra Clopton, and the firing of shots that struck a vehicle occupied by Silento Bell and Yolanda Davis. On appeal, all three Appellants challenge the sufficiency of the evidence to support certain of their convictions; contend that the trial court violated the continuing witness rule by allowing the jury to watch surveillance videos in the jury room during deliberations; and claim that the trial court violated certain of their rights when addressing notes from the
1. The evidence presented at trial showed the following. On September 23, 2014, Darious and Harris (also known, respectively, as “Diablo” and “Mambo“), along with five other passengers, rode in Darious‘s tan Chevrolet Tahoe to a gas station at the intersection of Campbellton Road and Stanton Road in Fulton County. At almost the same time, Muse, Tequila Forehand, and Frederick Rosenau arrived at the gas station in Muse‘s dark blue Chevrolet Impala. While there, Appellants saw a gray car, which they thought was occupied by people with whom they had been feuding. Instead, the
More particularly, Clopton testified that, just before the shoоting, she and Clements were driving down Stanton Road to the gas station to buy cigarettes before the store closed at midnight. Clopton testified that Clements was driving and that, as they approached Campbellton Road and began turning left into the gas station, a bullet struck her passenger window. According to Clopton, Clements tried to back up but a bullet struck him in the head, and their car stopped. Clopton “crawled behind the car and laid down.” In the meantime, shots were still being fired. Clopton added that she was behind the car about 30 seconds and that while she was there, the shots stopped. She then saw a vehicle drive off at a “high rate of speed“; she could not identify the vehicle and was not even “sure [if] it [was] a truck or a car.” After the vehicle drove off, she ran to the gas station for help. Clopton could not identify the shooter or the car that she saw drive away from the gas station. A 911 call reporting
Silento Bell testified that at 11:50 p.m. on September 23, 2014, he and his wife, Yolanda Davis, were driving down Campbellton Road and that as they were passing the traffic light at the intersection of Campbellton and Stanton Roads, an “object” hit their windshield and then “a lot of shooting started.” He ducked down, “went into defense mode,” was “trying to get out of harm‘s way,” and was “trying not to get shot.” Once he looked up, he saw a black Impala and a yellow Chevrolet Tahoe, with its lights off, “shoot past” him “at a high rate of speed.” He added that both vehicles had come out of the gas station. On cross-examination, when asked how many times he had “actually been shot at,” Bell respоnded that “they wasn‘t shooting at [him].” Bell also testified on cross-examination that his car was not struck by a bullet but by what he “assum[ed]” was a brick. He added that any bullet holes that the police found in
Davis agreed with Bell‘s description of events, but she testified that a bullet and not a brick struck their car, and she described Darious‘s vehicle as a “white Suburban” instead of a Tahoe. Davis also testified that before the shooting, she saw the Impala parked by a gas pump at the gas station and the Suburban in front of the station. She added that, after the shooting, both vehicles left the gas station at a high rate of speed. Over Jujuane‘s hearsay objection, Davis testified that, on the night of the crimes, Bell told law enforcement officers the same thing that she did about what happened “in every respect.”
The gas station had a video surveillance system that consisted of a number of cameras recording activity at various parts of the exterior and interior of the gas station. A number of video clips from the recording system were played at trial. Appellants do not dispute that Darious‘s Tahoe and Muse‘s Impala are depicted in the video
McKenzie testified that he knows Darious as Diablo and Jujuane as Mambo and that he and the Harris brothers lived in the same neighborhood near the gas station. McKenzie testified that he saw the Tahoe park at the gas station and that he knew it was owned by Diablo. According to McKenzie, shortly after the Tahoe parked,
McKenzie also testified that he had seen them at the gas station earlier on the day of the crimes. According to McKenzie, they were “just standing around there kicking it” when Diablo‘s and Mambo‘s sister approached them and said that “some guys are looking for you in a gray car.” McKenzie added that he had seen Diablo, Mambo, and others “feuding” or “beefing” with individuals in a gray car for “a whole week,” and that “Diablo and them” were part of the Bloods gang, while the people in the gray car were рart of the Crips gang.
Investigator T. Bacon of the City of Atlanta Police Department investigated the crime scene. He testified that the victims’ car was struck by nine bullets, with three bullets striking the front passenger window. He added that he found a large number of shell casings at the crime scene. Vanna Kelly, a GBI firearms expert, testified that the four .45-caliber shell casings found at the scene were fired from the same firearm; that 13 9mm shell casings found at the scene were fired from the same firearm; that 11 other 9mm
Kasandra Novinger, who was a probation officer for the Georgia Department of Corrections in November 2014, testified that Muse was called for a probation visit based on information2 that her office had received from Detective Summer Benton of the Atlanta Police Department. She testified that, when she first encountered Muse at the office, he seemed fine, but that once she informed him that the office would be conducting a urine screen, as well as a search of his cell phone and car, he “began to show obvious signs of anxiety,” with his breathing becoming heavier and shaky. While
Sergeant Lakea Gaither testified that she had been a detective in the gang unit of the Atlanta Police Department for over seven years and had encountered over a thousand gang members during that time. She testified that the Bloods are a criminal street gang acting within Fulton County and that the “Nine Trey Bloods,” nicknamed “Billy Bad Ass,” are a sect of the larger Bloods gang. That sect calls their female members terms like Lady, Ruby, or Rose. She added that the Billy Bad Asses (“BBAs“) used symbols like five-point stars, a skull, “five symbols,” and BBA tattoos to identify themselves. According to Gaither, Forehand claimed membership in the BBAs and had a five-point star on the side of her face. She also testified that on Muse‘s Facebook page, he went by the name “Finessalino” and that members of the Nine Trey Bloods attached
Detective Kevin Leonpacher, who was trained in cell phone analysis, testified that information that he obtained from the carrier of Muse‘s cell phone showed that, shortly before the 911 call reporting the incident at 11:48 p.m., Muse‘s cell phone made a call that hit off a cell tower in the same geographic area as the crime scene. Moreover, the evidence showed that Muse‘s cell phone made a call at 11:51 p.m. that hit off that same cell tower but on a different side of it and that his phone made a call at 11:54 p.m. that hit off a cell tower that was farther away from the crime scene. Leonpacher added that he had examined thirty days of calls made using Muse‘s
In addition, Investigator Jared Watkins testified that he performed a “phone dump” of Muse‘s cell phone, which involved using a software program to extract information from the phone. The messages that Watkins extracted from Muse‘s cell phone showed that Muse received an incoming message on November 2, 2014, that said that “[h]e who walks by these principles walk the life of Billy. Loyalty is everything. Remember that. Y‘all, loyalty lays with Billy first and those who brought you to Billy secondly. I love my Billy.” Another message sent on October 25, 2014, reads: “This Billy is more than a gang, it‘s a life for Billy, and we do the same in return. It‘s not about staying either. It‘s in or you‘re out. Your decision in this life.” There was a message sent from Muse‘s phone on September 25, 2014, saying that “[a]s of today, everyone report directly to Finessalino.” Moreover, at 11:17 p.m. on September 23, the night of the shooting, Muse‘s phone sent a message saying,
Both Darious and Jujuane were interviewed by Detective Benton before trial. Benton interviewed Jujuane on September 27,
Benton interviewed Darious on October 10, 2014. She testified that Darious initially denied that he was at the crime scene and said that he owned a Buick vehicle, but that after the detective informed him that she had spoken with Jujuane, Darious admitted that he was there and that he owned a Chevrolet Tahoe. He also admitted that he arrived at the gas station on the night of the crimes at roughly the same time as the Impala and that he had been in hiding after the crimes were committed but for a reason other than the
Muse was the only defendant to testify at trial. He acknowledged that he and Rosenau are members of the Bloods gang, but testified that he was not at the gas station during the shooting incident. He added that Rosenau had dropped him off at a girlfriend‘s house around 8:00 p.m. on the night of the incident, that Rosenau took Muse‘s Impala “to make a little run,” and that he (Muse) left his cell phone in the Impala to charge because he did not have a wall charger. According to Muse, he stayed at his girlfriend‘s home about three hours, and she then drove him to the nearby home of a friend and dropped him off. Muse testified that later that evening, Rosenau came to his friend‘s home, and “[e]verybody [was] kind of frantic, they were, like, shooken up about something.” Muse did not say who was with Rosenau, but he testified that “they didn‘t go into too much detail” and took off. Muse testified that, at the time
2. All three Appellants contend that the evidence presented at trial was constitutionally insufficient to support their convictions for the crimes committed against Clements, Clopton, Bell, and Davis. In particular, Muse claims that there was no evidence presented at trial that he participated in the incident that led to the shooting that killed Clements and injured Clopton, correctly noting that no witness identified him at the crime scene and that the surveillance video did not show him as being present at the gas station. For their part, Darious and Jujuane contend that the evidence showed only that they were merely present at the crime scene and that they did not fire or possess a weapon. We disagree.
When evaluating the sufficiency of the evidence as a matter of federal due process, we view the evidence presented at trial in the light most favorable to the verdicts and consider whether it was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes of which hе was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LEd2d 560) (1979); Moore v. State, 311 Ga. 506, 508 (858 SE2d 676) (2021).
Moreover, to prove Appellants’ guilt, it was not necessary for the State to prove that Appellants possessed a weapon or fired at the victims. See Saylor v. State, __ Ga. __ ( __ SE2d __ ) (2023 WL 3183590, at *4) (May 2, 2023). (“To prove [the defendant‘s] guilt, the State was not required to prove that he personally fired at [the victim] or his vehicle.“).
Viewed in the light most favorable to the verdicts, the evidence at trial showed that Darious‘s Tahoe and Muse‘s Impala arrived аt the gas station at almost exactly the same time and that numerous passengers in Darious‘s Tahoe were armed. Moreover, Darious, Jujuane, Muse, Forehand, and Rosenau were all identified as
We conclude that the evidence was sufficient as a matter of constitutional due process to authorize a rational trier of fact to find Appellants guilty beyond a reasonable doubt as parties to the crimes
In addition, Muse‘s contention that the evidence was insufficient to support his conviction for the aggravated assault of Bell because Bell testified that “they wasn‘t shooting at [him]” and that it was a brick and not a bullet that hit his car is without merit. To begin, the indictment chаrged Muse with committing an
Finally, Jujuane‘s contention that the evidence was insufficient
Darious and Jujuane were charged with violating the Street Gang Act, on the basis that while associated with a criminal street gang, they participated in criminal gang activity through the commission of at least one of several crimes, including murder, felony murder, and aggravated assault. To convict Darious and Jujuane,
the State had to prove beyond a reasоnable doubt the existence of a “criminal street gang,” that [Darious and Jujuane] w[ere] associated with the gang, that [they] committed one of the offenses listed in
OCGA § 16-15-3 (1) , and that the commission of the predicate offense was intended to further the interests of the gang.
Sillah v. State, 315 Ga. 741, 745 (883 SE2d 756) (2023).
Darious and Jujuane do not argue that the Nine Trey Bloods
With regard to the contention that the State failed to prove that Darious and Jujuane intended to further the interests of the Nine Trey Bloods, the evidence showed that Darious, Jujuane, and their fellow gang members had engaged in a conflict for about a week with
4. Muse and Darious contend that the verdicts were “contrary to [the] evidence and the principles of justice and equity,”
5. All three Appellants contend that the trial court violated their Sixth Amendment right to counsel by failing to inform counsel of three jury notes and by failing to seek comment from counsel. Moreover, Muse and Darious contend that the trial court violated their right to be present under the Georgia Constitution by discussing those jury notes in their absence. We disagree with both of these contentions.
(a) The record shows that, during deliberations, the jury sent three notes to the trial court. In the first note, marked as “Court‘s Exhibit 1,” the jury asked three questions: “Definitions of all charges?“; “Does the actual killing weapon need to be possessed by the said person to be found guilty of murder?“; and “Watch surveillance footage.” The trial court said that the jury and the defendants “need[ed] to be brought” into the courtroom. Shortly
As for the second question, the court at one point said that the question was, “Do you have to be holding the gun to be convicted of murder?” Shortly thereafter, the court said that the question was, “Does the actual killing weapon need to be possessed by said person
The record also contains a second note from the jury, marked as “Court‘s Exhibit 2.” That note contained a question asking if the jury could review the transcript of McKenzie‘s trial testimony. The exhibit contains a written answer from the trial court: “No. Not available. Need to remember testimony as best you can.” The trial transcript contains no mention of this note by the trial court to counsel.
At joint hearings on Appellants’ motions for new trial, the trial court heard testimony regarding whether counsel and Appellants were present when the notes were discussed. The lead and assistant prosecutors both testified that the trial judge discussed the jury questions in the presence of all counsel and defendants, including the question regarding McKenzie‘s testimony. They also added that the trial judge‘s practice was always to discuss jury questions with counsel and the defendants being present. Moreover, Muse‘s trial counsel testified that the trial judge‘s practice was to discuss jury
In denying Appellants’ motions for new trial, the trial court found that Appellants had “failed to sufficiently demonstrate from the full record of this case—including the record made at the hearing on . . . motion for new trial—that [Appellants] and [their] lawyer[s] were . . . precluded from discussing the jury questions with the trial court or . . . excluded from a colloquy between the trial court and the jury.”
(b) “A criminal defendant‘s constitutional right to counsel attaches after the onset of formal prosecutorial proceedings and continues through all critical stages of the proceeding brought against him.” Lowery v. State, 282 Ga. 68, 74-75 (646 SE2d 67) (2007) (cleaned up).7 In Lowery, we said that:
Assuming without deciding that the right to counsel encompasses the right to have reasonable notice of a deliberating jury‘s substantive communication and a meaningful opportunity to be heard with regard to the proposed response thereto, the failure of the trial court to inform counsel of the contents of the note and to seek comment on or input in the formulation of the court‘s response would constitute a violation of the right to counsel.
Id. at 75 (footnote omitted). Furthermore, “[i]n an exercise of this Court‘s inherent power to maintain a court system capable of providing for the administration of justice in an orderly and efficient manner,” we took the opportunity to announce a rule requiring
trial courts to have jurors’ communications submitted to the court in writing; to mark the written communication as a court exhibit in the presence of counsel; to afford counsel a full opportunity to suggest an appropriate response; and to make counsel aware of the substance of the trial court‘s intended response in order that counsel may seek whatever modifications counsel deems appropriate before the jury is exposed to the instruction.
Id. at 76 (cleaned up). Since we decided Lowery, we have not revisited the existence of the constitutional rule that we assumed in Lowery—that a defendant‘s right to counsel “encompasses the right to have reasonable notice of a deliberating jury‘s substantive
communication and a meaningful opportunity to be heard with regard to the proposed response thereto.” Id. at 75.8 The Court of Appeals, however, has said that in Lowery, we held that “the failure of the trial court to inform counsel of the contents of [a jury note] and to seek comment or input in the formulation of the court‘s response [constitutes] a violation of [a defendant‘s] right to counsel.” Dowda v. State, 341 Ga. App. 295, 299 (799 SE2d 807) (2017) (brackets in original). Appellants rely on Lowery and Dowda to argue that the trial court violated their right to counsel in this case. Assuming without deciding the continued validity of the constitutional rule that we assumed in Lowery, we conclude that Appellants’ claim fails.
(c) As for the merits of the right-to-counsel claim, the record shows that the trial court complied with the requirements of Lowery
As we explained in Lowery, an error of constitutional magnitude, such as the denial of the
Here, we also conclude that any violation of Appellants’ right to counsel was harmless beyond a reasonable doubt. First, the trial court‘s response that a defendant did not have to be in possession of the murder weapon to be found guilty of murder was an accurate statement of the law and was adjusted to the evidence in the case. See Kemp v. State, 303 Ga. 385, 390 (810 SE2d 515) (2018) (holding that the defendant did not have to be in possession of the murder weapon to be found guilty of murder where the evidence showed that the defendant conspired with others to rob the victim); Morris v. State, 308 Ga. 520, 529 (842 SE2d 45) (2020) (“A jury instruction
(d) With regard to Muse‘s and Darious‘s contention that the trial court violated their right to be present by discussing jury notes in their absence, the record belies this claim. To begin, the trial court directed that Appellants be brought into the courtroom before it addressed the notes from the jury, and “[w]e must apply the presumption of regularity and conclude that the trial court conducted the trial properly by making sure appellant[s] w[ere] present when necessary.” Milinavicius v. State, 290 Ga. 374, 377 (721 SE2d 843) (2012) (holding, based on the presumption of regularity, that when the record failed to show that the defendant was present for a discussion about replacing a juror, but showed that the court had directed before the discussion that the defendant be brought into the courtroom, there was no violation of the defendant‘s right to be present).
In addition, the record, including the testimony at the motion for new trial hearings, supports the trial court‘s conclusion in denying Appellants’ motions for new trial that Appellants were present for the discussions regarding the jury notes. In this regard,
6. Appellants all contend that the trial court violated the continuing witness rule by allowing the jury to watch the surveillance videos in the jury room. “However, the continuing witness rule is directed at written testimony that is heard by the jury when read from the witness stand.” Moore, 311 Ga. at 511. “The rule is based on the principle that it is unfair and places undue emphasis on written testimony that has been read to the jury for the writing to be sent out with the jury to be read again during deliberations whereas oral testimony is received by the jury only once.” Id. at 511-512. Here, the surveillance videos were “not the reduction to writing of an oral statement, nor a written statement provided in lieu of testimony.” Clarke v. State, 308 Ga. 630, 636 (842 SE2d 863) (2020) (cleaned up). Instead, they were “original documentary evidence,” they “did not derive their evidentiary value solely from the credibility of their makers,” and they were “properly allowed to go out with the jury.” Id. (cleaned up). Accordingly, the
7. Muse and Darious contend that the State failed to timely provide discovery of evidence of text messages and other data extracted during the “phone dump” of Muse‘s cell phone by Investigator Watkins.11 See
Two days after Watkins testified about the data extracted from Muse‘s cell phone, Appellants contended that they had not been provided this information as part of discovery and that the discovery violation meant that they had been unable to prepare for Watkins‘s
With regard to Muse‘s and Darious‘s mistrial motion, because the record shows that they did not move for a mistrial until two days after the testimony in question, the mistrial issue is not preserved for appellate review. See Bedford v. State, 311 Ga. 329, 332-333 (857 SE2d 708) (2021) (holding that because the defendants “moved for a mistrial after, not contemporaneously with, the State‘s improper closing argument, the motion was untimely and the issue was not preserved for appellate review“), disapproved in part on other grounds by Clark v. State, 315 Ga. 423, 435 n.16 (883 SE2d 317) (2023).
With regard to Muse and Darious‘s claim that the trial court should have excluded evidence of the “phone dump” because оf a discovery violation, they likewise did not timely raise this issue at
must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Grier v. State, 313 Ga. 236, 240-241 (869 SE2d 423) (2022).
Muse and Darious have not shown clear error because they have not shown that if they had timely objected to the lack of proper notice, the exclusion of the evidence would have been required. Here, when Muse and Darious made their untimely objection, they did not make any argument, or offer any evidence showing, that the prosecution had acted in bad faith in failing to provide timely notice of the cell phone data. Moreover, the trial court granted them a continuance from 10:00 a.m. Friday morning until trial reconvened on Monday. That Friday morning, the prosecutor provided defense counsel with the cell phone data, and the trial court informed defense counsel that, on Monday, they could present any evidence regarding the dаta that they needed to. When the trial reconvened on Monday, Muse and Darious did not claim that they had an
8. In their motions for new trial, Muse and Darious claimed that they were entitled to a new trial on the ground that the State violated their due process rights under Brady v. Maryland, 373 U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963), by failing to disclose before trial evidence of the text messages and other data extracted from Muse‘s cell phone. The trial court rejected these claims, and on appeal, Muse and Darious contend that the trial court erred in doing so. We disagree.
To prevail on their Brady claims, Muse and Darious must show that
(1) the State possessed evidence favorable to [their] defense; (2) [they] did not possess the favorable evidence and could not obtain it [themselves] with any reasonable diligence; (3) the State suрpressed 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.
Harris v. State, 313 Ga. 653, 664 (872 SE2d 732) (2022) (cleaned up). “The burden of proof on these elements lies with the defendant.” Id. “To establish the fourth prong, often referred to as materiality, a defendant does not need to show that he necessarily would have
As for Muse‘s Brady claim, the trial court denied it, ruling that Muse “made no showing that the cellphone extraction was favorable to his case.” On appeal, Muse does not point to any data extracted from his phone that he contends was exculpatory, and we conclude that Muse has failed to carry his burden to show that the evidence was exculpatory. In fact, the messages to which Investigator Watkins testified were highly inculpatory, showing Muse‘s involvement with the Nine Trey Bloods and his concern, shortly
With regard to Darious‘s Brady claim, the trial court noted that the cell phone extraction contained information favorable to Darious in that his name was not found on Muse‘s phone. It ruled, however, that, even assuming that the evidence was not disclosed pretrial but only during trial, Darious had not shown that the delayed disclosure deprived him of a fair trial because Darious used the “favorable information from the cellphone extraction—i.e., his absence from Muse‘s cellphone data—to distance himself from Muse . . . at trial.” We conclude that the trial court did not err.
At trial, after Appellants claimed that they had not received the information extracted from Muse‘s phone before trial, the trial court granted a continuance from 10:00 a.m. Friday morning until
On appeal, Darious contends that the exculpatory evidence from the “phone dump” was that “the phone records did not contain any reference to [him].” As the foregoing discussion of closing arguments shows, Darious highlighted the relevant exculpatory evidence for the jury in closing. Accordingly, we conclude that Darious has failed to carry his burden to show that any delayed disclosure “materially prejudiced him or deprived him of a fair trial.” Anglin, 312 Ga. at 512-513 (holding that the defendant‘s claim that
9. Darious contends that the State violated
(a) We have stated that the requirements of
Hines v. State, 313 Ga. 1, 4 (867 SE2d 85) (2021) (cleaned up). Here, the trial court determined that the State had established good cause for not complying with the statutory requirements and ensured that Darious was given an opportunity to interview McKenzie. On the third day of trial, just before the State was going to call McKenzie to testify, Jujuane objected to him testifying, stating that the State had not timely disclosed McKenzie as a witness.14 Jujuane argued that the late notice did not comply with discovery requirements and that the trial court should exclude his testimony. In response, the prosecutor stated that she had only discovered McKenzie as a witness the same week that she had provided his name and birth date to defense counsel and that she had provided that information
(b) Darious also contends that the untimely disclosure of McKenzie as a witness violated due process but this claim was not raised at trial, and we therefore review it only for plain error. See
whether a defendant shall live or die.” Id. at 702 (cleaned up).17
Darious fails to acknowledge that “[t]here is no general constitutional right to discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559 (97 SCt 837, 51 LE2d 30) (1977). Accord Bello v. State, 300 Ga. 682, 683 (797 SE2d 882) (2017) (quoting Weatherford for that proposition). In Weatherford, the defendant argued that due process required the prosecution to disclose before trial the names of witnesses who would testify against him and prohibited the prosecutor from presenting at trial the surprise testimony of an undercover agent. See id. The Court in Weatherford rejected that argument. See id. at 559-561. We have held, however, that due process may require that the accused upon timely request be afforded a meaningful opportunity to have “critical evidence whose nature is subject to varying expert opinion” examined by his own lawyers and experts before trial. Sabel v. State, 248 Ga. 10, 18 (282 SE2d 61) (1981) (holding that due process demanded that the
In sum, Darious has pointed to no controlling authority holding that due process required the State to disclose McKenzie as a witness before trial. He has therefore failed to carry his burden to show clear error. See Williams v. State, ___ Ga. ___ (___ SE2d ___) (2023 WL 3468114, at *3 (May 16, 2023) (“As to the second part of the [plain error] test, an error is plain if it is clear or obvious under current law. An error cannot be plain where there is no controlling authority on point or if a defendant‘s theory requires the extension
10. Darious and Jujuane contend that the trial court erred in denying their motions to sever their trials from their co-defendants and each other. We disagree.
“In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance.” Hurston v. State, 310 Ga. 818, 825 (854 SE2d 745) (2021).
In ruling on a motion to sever, a trial court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses.
Collins v. State, 312 Ga. 727, 735 (864 SE2d 85) (2021) (cleaned up).
Darious and Jujuane both argue that there was a likelihood of confusion of the evidence and that prejudicial gang evidence against Rosenau and Muse spilled over to them. In this vein, Jujuane also argues that the evidence against his co-defendants was more substantial than the evidence against him, pointing to the lack of evidence that he possessed a firearm.
With regard to whether the jury might have become confused regarding the evidence, we have concluded it is unlikely that a jury would confuse the evidence where, as here, co-defendants are
As for Jujuane‘s contention that he should not have stood trial with the other three co-defendants because the State did not offer evidence that he possessed a firearm and was a shooter, we have concluded that this factor does not require severance where the State presents evidence, as here, that “co-defendants acted in concert,” making it unnecessary “under the applicable law on party to a crime to show that any specific co-defendant physically
With regard to Darious‘s and Jujuane‘s claim that gang evidence relating to Muse and Rosenau spilled over to them, we note that McKenzie and Sergeant Gaither testified that Darious and Jujuane were members of the Bloods gang, and some evidence of Rosenau‘s and Muse‘s gang membership would likely have been admissible against Jujuane in a separate trial given that the State‘s theory under the street gang count was that members of the Bloods gang acted in concert to attack members of the Crips gang over a dispute. See Saylor, ___ Ga. at ___ (2023 WL 3183590, at *5) (holding that gang evidence against two co-defendants did not warrant a severance as some evidence regarding those co-defendant‘s gang activity would likely have been admissible in a separate trial based on the State‘s theory on the gang count of the indictment that the defendants acted in concert as gang members and as “there is no clear showing that this evidence prejudiced [the defendant] given the evidence of [his] gang membership“).
For the foregoing reasons, we conclude that Darious and Jujuane have failed to make the clear showing that being tried with their co-defendants and each other was so prejudicial as to amount to a denial of due process.
11. Muse contends that his trial counsel was constitutionally ineffective in failing to object to hearsay testimony by Davis regarding statements that Bell made at the crime scene to a law enforcement officer and later to her. Even assuming that counsel did fail to object to Davis‘s testimony, we disagree.
To establish that his trial counsel was constitutionally ineffective, Muse was required to prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To show that his lawyer‘s performance was deficient, Muse had to demonstrate
But, with regard to Davis‘s testimony that Bell‘s statement on the night of the crimes to law enforcement officers was the same as
In addition, Muse makes no specific argument about how Davis‘s testimony—that Bell said that he was reluctant to testify, but would nevertheless come to court and do so—was prejudicial. We conclude that Muse has failed to establish that, if counsel had objected to this testimony and the trial court had excluded it from evidence, “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Finally, we conclude that the cumulative prejudice from the assumed deficiencies is insufficient to show a reasonable probability that the results of the proceedings would have been different in the absence of the alleged deficiencies. See Jones v. State, 305 Ga. 750, 757 (827 SE2d 879) (2019) (explaining that “the effect of prejudice resulting from counsel‘s deficiеnt performance is viewed cumulatively“).20
11. Darious contends that he is entitled to a new trial because “the State now concedes that ‘the record as it currently stands does not truly or fully disclose what transpired in the trial court.‘” We disagree.
The “concession” to which Darious refers was made in a motion to reconstruct the record filed by the State before the second hearing on the motion for new trial. The motion alleged that the transcript did not accurately reflect the discussion between the court and counsel regarding the second and third jury notes. At the hearing, testimony was taken regarding those discussions. Moreover, the transcript filed on appeal does contain the discussion between the
Judgments affirmed. All the Justices concur.