Hurston v. State

FINAL COPY

               S20A1223. HURSTON v. THE STATE.


     NAHMIAS, Presiding Justice.

     Appellant Kelvin Hurston and his co-defendant Dextreion

Shealey were convicted of felony murder and other crimes in

connection with the gang-related shooting death of Daven Tucker.

In this appeal, Appellant contends that the trial court violated his

constitutional right to be present during his trial and that his trial

counsel provided ineffective assistance by failing to request a ruling

on his motion to sever his trial from Shealey’s, failing to request a

ruling on his motion to suppress evidence derived from a search

warrant, failing to request a jury instruction on accomplice

corroboration, and failing to request a proper limiting instruction on

other acts evidence. All of these claims are meritless, so we affirm.1


     1 Tucker was killed on December 17, 2016. In March 2017, a Troup
County grand jury indicted Appellant, Shealey, Charles Lovelace,
Shawndarious Sands, Coty Green, Natori Lee, Dantavious Rutledge, Zachary
Holloway, and Andre Gilliam for a series of allegedly gang-related crimes.
      1. Viewed in the light most favorable to the verdicts, the

evidence presented at Appellant’s trial showed the following. On the

evening of December 17, 2016, Appellant (who was then 16 years old

and known as “K.J.”), Shealey, Charles Lovelace, Shawndarious

Sands, Coty Green, Natori Lee, Lee’s brother Kouri, Dantavious

Rutledge, Zachary Holloway, Andre Gilliam, and Essence Todd – all



Green, Lee, Rutledge, Holloway, and Gilliam pled guilty and later testified for
the State. In April 2018, Appellant, Shealey, Lovelace, and Sands were
reindicted, individually and as parties, for felony murder based on aggravated
assault, aggravated assault, and participating in criminal street gang activity
in connection with the fatal shooting of Tucker. Appellant was also indicted for
aggravated assault and a gang-activity charge in connection with a shooting at
a Troup County park earlier on the night of the murder, as well as one count
of possession of a firearm during the commission of a felony in connection with
each incident. Shealey, Lovelace, and Sands also were indicted on additional
charges.
      Lovelace and Sands then pled guilty, and Appellant and Shealey were
tried together beginning on April 16, 2018. On April 23, the jury found
Appellant guilty of all charges against him. (The jury found Shealey not guilty
of one gang-activity count but guilty of the other charges against him; we
affirmed his convictions in Shealey v. State, 

 (

)
(2020).) The trial court sentenced Appellant to serve life in prison for felony
murder, twenty consecutive years for the aggravated assault conviction related
to the park shooting, twenty consecutive years for each of the gang-activity
counts, and five consecutive years for each of the firearm counts; the remaining
aggravated assault count merged. Appellant filed a timely motion for new trial,
which he amended through new counsel in September 2019. After an
evidentiary hearing, the trial court denied the motion in January 2020.
Appellant filed a timely notice of appeal, and the case was docketed to this
Court’s August 2020 term and submitted for a decision on the briefs.

                                       2
of whom were connected to a criminal street gang from West Point

called “4way” – attended a memorial celebration for a friend who

had died.2 After the memorial, the group and a few other people

decided to go to LaGrange. Appellant rode there in Todd’s Hyundai

Sonata, and the others drove in a caravan of cars that included

Shealey’s Ford Mustang and Green’s Honda Accord. Appellant and

a few others in the caravan stopped at a gas station in LaGrange

before proceeding to a nearby public housing complex. A surveillance

video recording of the complex’s parking lot showed that Todd’s

Sonata and the other cars in the caravan were at the complex from

9:53 to 9:59 p.m.

      According to Green, there was an ongoing “beef” between 4way

and a LaGrange group called “Mob,” and the people in the caravan

decided to drive to Granger Park to see if any people associated with

Mob were hanging out there. Surveillance video recordings from the


      2 The State presented testimony from Kouri (whose case was adjudicated

in juvenile court) and an expert on gangs, along with photos and video
recordings, to establish that 4way was a gang, that all of these individuals were
members of or associated with the gang, and that Appellant was associated
with the gang.
                                       3
park showed that at 10:03 p.m., Todd’s Sonata and the rest of the

caravan of cars entered a parking lot where dozens of people had

gathered. According to several witnesses who were in the park,

gunshots rang out from some of the cars in the caravan. Todd saw

Appellant, who was sitting in the back seat of her car, shoot into the

parking lot. Holloway, who was also sitting in the back seat, saw

Appellant use a big, black, MAC-style nine-millimeter gun to shoot.

Another witness in the park heard return fire from some of the

people in the parking lot.3 The park surveillance video showed that

the caravan left as people in the parking lot ran away. Investigators

later found 39 shell casings in the parking lot, including 13 nine-

millimeter shell casings. Remarkably, no one was injured during the

shooting.

      The surveillance video from the housing complex showed that

at 10:07 p.m., Todd’s Sonata and the rest of the caravan returned to

the complex’s parking lot. Shealey’s Mustang had a bullet hole in



      3 Several people in the caravan testified that the people in the parking

lot began shooting first.
                                      4
the passenger door, and according to several members of the

caravan, Shealey was angry because his car had been hit. Kouri

received information that Mob members had shot at the caravan; he

relayed that information to the group at the housing complex, and

Green said that he knew the location of a house where some Mob

members lived. Shealey suggested that they go to the house, which

was on Newnan Street, saying, “Somebody’s got to pay. My car just

got shot,” and “What y’all want to do? Somebody’s got to get it.”

Green testified that he, Appellant, Shealey, Lovelace, Sands, Lee,

and Kouri planned to “shoot . . . up” Daven Tucker’s house – the

house on Newnan Street – because Tucker was a member of Mob.

Appellant rode in the Sonata with Sands, Rutledge, and Holloway,

while Shealey, Green, Lovelace, Lee, and Kouri rode in Green’s

Accord.4

         The Sonata and the Accord parked near Newnan Street, and

Appellant, Green, Lovelace, and Sands got out of the cars. Green



         4 Gilliam, Todd, and other people in the caravan drove back to West

Point.
                                       5
testified that he had a .40-caliber gun; Appellant had a big, black

MAC-11 handgun; Lovelace carried a nine-millimeter gun or a .380

pistol; and Sands carried a nine-millimeter gun.5 Green testified

that he, Appellant, Lovelace, and Sands started shooting toward the

house. Green shot once and then got back in the Accord as the three

other men continued to shoot. Green and Lee heard return gunfire

from the direction of the house.6 Appellant and Sands got back in

the Sonata, and Lovelace got in the Accord. Rutledge and Holloway,

who each remained in the Sonata during the shooting, testified that

after Appellant got back into the car, he said that he had

“performed,” which Rutledge understood to mean that Appellant

had fired his gun. Both cars then fled.

     Tucker, who had been in the front yard of his house, was shot

once in his chest. Emergency responders arrived minutes later,

around 11:00 p.m., and took Tucker to a hospital, where he soon died


     5 Rutledge also testified that Appellant had a big, black MAC-11. Kouri

testified that Appellant had a big, black MAC-9, and Lee testified that
Appellant had a TEC-style gun that was “bigger than a pistol.”
       6 Lee, Rutledge, Holloway, and Kouri, who had stayed in the cars along

with Shealey, testified that they heard gunshots but did not see who shot.
                                     6
from the gunshot wound. Investigators later found 34 nine-

millimeter shell casings, five .380 shell casings, and one .40-caliber

shell casing at the scene.

      Appellant and the other eight 4way members and associates

eventually went to a motel in Alabama. Rutledge testified that later

that night, Appellant said, “I killed the n**ger.” Green, Lovelace,

and Kouri were arrested at the motel the next day.7 In Green’s

Accord, investigators found Green’s .40-caliber gun, an empty box

for nine-millimeter bullets, a nine-millimeter bullet, and a plastic

tray used to hold ammunition. Appellant’s gun was never

recovered.8

      In February 2017, investigators interviewed Appellant’s 14-

year-old girlfriend Ashanti Daniel. The interview was video

recorded, and the recording was later played for the jury. Daniel told



      7 Lee was arrested on December 20; Rutledge was arrested on December

22; Holloway was arrested about two months later. The record does not specify
when Shealey and Sands were arrested.
      8 Several of the 4way members and associates testified that after the

shooting, Appellant put his gun in Holloway’s backpack. Holloway testified
that he gave the gun back to Appellant, who then buried it. Kouri also testified
that Appellant said that he buried the gun.
                                       7
investigators that Appellant had said that he was involved in a

shooting and that he “killed the dude.” Appellant was arrested on

February 24.

     A few days before his trial began, during a recorded phone call

that Appellant made from jail to two unidentified people, Appellant

said that someone should “jump” Daniel. In addition, the State

presented evidence that on the morning of the murder, Sands sent

Appellant a Facebook message asking, “You got the Tec?” Appellant

responded, “Yeah.” Sands then asked about a pistol, and Appellant

said that it had been traded. The State also presented evidence

under OCGA § 24-4-404 (b) that about three months before the

murder, Appellant sent Facebook messages to an unknown person,

asking to borrow a gun to “shoot somebody[’s] house up.”

     Appellant and Shealey did not testify. Appellant’s theory of

defense was that he was not a gang member, was not involved in the

shootings, and was being set up by the 4way members who had

taken plea deals.

     Appellant does not challenge the legal sufficiency of the

                                 8
evidence supporting his convictions. Nevertheless, in accordance

with this Court’s waning practice in murder cases, we have reviewed

the record and conclude that, when viewed in the light most

favorable to the verdicts, the evidence presented at trial and

summarized above was sufficient to authorize a rational jury to find

Appellant guilty beyond a reasonable doubt of the crimes of which

he was convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979). See also OCGA § 16-2-20 (defining

parties to a crime); Shealey v. State, 

 (

)

(2020) (“It was for the jury to determine the credibility of the

witnesses and to resolve any conflicts or inconsistencies in the

evidence.” (citation and punctuation omitted)).9

      2. Appellant contends that his right under the Georgia

Constitution to be present during all critical stages of the criminal

proceedings against him was violated when he was excluded from a


      9 We remind litigants that this Court will end its practice of considering

the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that begins in December 2020. See Davenport v.
State, 

 (

) (2020). The Court began assigning cases
to the December term on August 3, 2020.
                                       9
conference room meeting during which the trial court questioned

Daniel about whether she would testify at trial. Because Appellant

acquiesced to his absence from the meeting, this claim fails.

     (a) When one prosecutor called Daniel to testify during the

trial, the other prosecutor immediately asked the court if counsel

could approach the bench. After a bench conference, which was not

transcribed, the court asked the jury to leave the courtroom. The

jury left; Appellant (and Shealey) remained. A prosecutor then said

that Daniel was in the hallway outside the courtroom but refused to

come in to testify because she was “scared.” The prosecutor

suggested that Daniel was unavailable to testify because she was

intimidated by the jail call during which Appellant said that

someone should “jump” her, and the prosecutor argued that the

video recording of Daniel’s interview with investigators should be

admitted into evidence under OCGA § 24-8-804 (b) (5).10 Appellant’s




     10 OCGA § 24-8-804 (b) (5) says that “[a] statement offered against a

party that has engaged or acquiesced in wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a witness” shall not be
excluded by the hearsay rule “if the declarant is unavailable as a witness.”
                                    10
trial counsel agreed that the recording of the interview should be

admitted. The trial court said that it first needed to determine

whether Daniel was unavailable, and that “we need to get her in

here and get her on the stand and I need to ask her if she’s going to

testify.” A prosecutor asked if the court could do that in chambers,

and the court told the prosecutors to bring Daniel into a conference

room. The prosecutor said that Daniel’s mother should also come in

to “testify to how scared [Daniel] is.” The court replied, “All right,”

and told the lawyers and the court reporter to come into the

conference room.

     At the beginning of the conference room meeting, which was

transcribed, the trial court said that it, the two prosecutors,

Appellant’s counsel, Shealey’s counsel, Daniel, and Daniel’s mother

were present. The court confirmed that Daniel had received a

subpoena and explained that it was a court order to testify and that

the State wanted her to testify. The court said that the prosecutors

indicated that she did not want to testify; Daniel responded, “Yes.”

The court explained that it could not make her testify but that it

                                  11
could hold her in contempt if she refused and then asked if she would

testify. Daniel said that she would. The court told her that the

lawyers would ask her questions in the courtroom and asked if

Daniel understood that the defendants, the jury, and other people

would be there. Daniel said, “Yes.” The court asked if she was willing

to tell the truth, and Daniel responded, “Yes.”

     A prosecutor then noted that if Daniel testified that she did not

remember certain events, the court would need to revisit the issue

of whether she was available as a witness. After a brief discussion

about how the lawyers might handle that issue, the court said that

the parties could deal with it later if Daniel refused to testify. The

judge and the lawyers then returned to the courtroom, where

Appellant was present; the jury was brought in; and Daniel took the

witness stand. Shortly after a prosecutor began questioning her,

Daniel covered her face with her hands. The court reminded her that

she was under subpoena, that “[w]e talked about that before,” and

that she could be held in contempt for refusing to testify. Daniel then



                                  12
testified; her testimony turned out to be favorable for Appellant.11

      Later, after the jury was excused for the day, the trial court

asked the lawyers if there was “anything we need to put on the

record,” and a prosecutor responded, “You know, we took the one

potential witness back.” The court said, “Yeah, and the defendants

weren’t back there for that,” explaining that the court did not

include the defendants in the meeting because there was an

implication that “there was some kind of threat.” The prosecutor

said to the defense lawyers, “I’m sure that was done with the

knowledge of each of your clients,” and the court said, “I mean,

counsel was back there and nobody objected.” Shealey’s counsel

replied, “Absolutely. We have no issue with that”; Appellant’s

counsel did not separately respond.

      At the hearing on Appellant’s motion for new trial, trial counsel

testified that when he returned to the courtroom after the meeting




      11 Contrary to her recorded statement to investigators before Appellant’s

arrest, Daniel testified at trial that Appellant did not tell her that he was
involved in a shooting or that he had killed someone. She claimed that she lied
to the investigators because she was mad at Appellant for cheating on her.
                                      13
with Daniel, he explained to Appellant that Daniel was going to

testify but that he “didn’t go into details” of what was discussed in

the conference room. In its order denying the motion, the trial court

ruled that Appellant acquiesced to his counsel’s waiver of his right

to be present.

     (b) Appellant argues that his absence during the conference

room meeting violated his state constitutional right to be present

during his trial. “‘This Court has long recognized that a criminal

defendant has a state constitutional right to be present during all

critical stages of the proceedings against him.’” Howard v. State, 

 (

) (2019) (citation omitted). Pretermitting

whether the meeting with Daniel was a critical stage at which

Appellant had a right to be present, he acquiesced to his counsel’s

waiver of his presence.

     A defendant may relinquish his right to be present if he

personally waives it in court; if his counsel waives it at his express

direction; if his counsel waives it in open court while he is present;

or if his counsel waives it and he subsequently acquiesces to the

                                 14
waiver. See Howard, 

. Acquiescence may occur when

“‘counsel makes no objection and a defendant remains silent after he

or she is made aware of the proceedings occurring in his or her

absence.’” Burney v. State, 

 (

) (2016)

(citation omitted). The question is whether the defendant “had

sufficient information concerning [the proceeding occurring in his

absence] to fairly construe his silence in this regard as

acquiescence.” 

     In this case, the record shows that Appellant was present when

Daniel failed to enter the courtroom after she was called to testify;

when a prosecutor said that Daniel was refusing to testify because

Appellant’s threat had intimidated her and argued that the

recording of Daniel’s interview with investigators should be

admitted into evidence; when the trial court announced that it was

going to question Daniel in a conference room about whether she

would testify; when the court told the lawyers, the court reporter,

and Daniel’s mother to come into the conference room; and when the

judge, lawyers, and court reporter left the courtroom to go to the

                                 15
conference room.12 When they returned, Appellant’s trial counsel

explained to him that Daniel was going to testify. Appellant was also

present when, after Daniel took the stand and again refused to

testify, the court reminded her that they had already discussed that

she was under subpoena and could be held in contempt if she did not

testify. Moreover, when the trial was ending for the day, the court

and a prosecutor discussed in Appellant’s presence the court’s

questioning of Daniel outside the courtroom and the fact that

neither the defendants nor their trial counsel had objected to that

procedure.

      Despite Appellant’s presence during all of these discussions

about the conference room meeting, there is no indication in the

record that he expressed any concern or voiced any objection to his

counsel or the trial court regarding his absence. Instead, the first



      12 Appellant’s assertion in his brief here that most of this discussion took

place at the bench is not supported by the trial transcript, which shows that
after Daniel was called to testify and the lawyers approached the bench, “a
discussion was held off the record,” but the trial court then went back on the
record to ask the jury (but not the defendants) to leave, after which the court
and lawyers discussed Daniel’s refusal to testify before moving to the
conference room.
                                       16
time that he contended that his right to be present was violated was

in his amended motion for new trial, which was filed nearly a year

and a half after the trial. Under these circumstances, the trial court

did not err in ruling that Appellant acquiesced to his absence from

the court’s meeting with Daniel. See Scudder v. State, 

 (

) (2016) (holding that the defendant

acquiesced to his absence when the trial court spoke with a witness

in chambers about her refusal to testify, because the defendant

knew that he had been excluded from the meeting and the nature of

the discussion but did not object or ask for the transcript of the

meeting to be provided to him). See also Howard, 

(concluding that the defendant acquiesced to his absence when the

trial court questioned a juror in chambers, because the defendant

was present but failed to object when the court later explained that

the in-chambers meeting had occurred, laid out the substance of the

juror’s testimony, and announced the juror’s removal); Jackson v.

State, 

 (

) (2004) (concluding that the

defendants acquiesced to their absence from an in-chambers

                                 17
conference, because their counsel did not object and the defendants

remained silent when the issue discussed during the conference was

discussed again by counsel and the trial court while the defendants

were present).

     3. Appellant also contends that his trial counsel provided

ineffective assistance in four ways. To succeed on these claims,

Appellant must prove that his counsel’s performance was

professionally deficient and that he suffered prejudice as a result.

See Strickland v. Washington, 

 (

, 80

LE2d 674) (1984). To establish deficient performance, Appellant

must show that his lawyer performed his duties in an objectively

unreasonable way, considering all the circumstances and in the light

of prevailing professional norms. See 

.

     This is no easy showing, as the law recognizes a “strong
     presumption” that counsel performed reasonably, and
     Appellant bears the burden of overcoming this
     presumption. To carry this burden, he must show that no
     reasonable lawyer would have done what his lawyer did,
     or would have failed to do what his lawyer did not. In
     particular, “decisions regarding trial tactics and strategy
     may form the basis for an ineffectiveness claim only if
     they were so patently unreasonable that no competent

                                 18
       attorney would have followed such a course.”

Brown v. State, 

 (

) (2017) (citations

omitted). To establish prejudice, Appellant must prove that there is

a reasonable probability that, but for his counsel’s deficiency, the

result of the trial would have been different. See Strickland, 

. We need not address both components of the Strickland

test if Appellant makes an insufficient showing on one. See 

.

       (a) Appellant claims first that his trial counsel provided

ineffective assistance by failing to request a ruling on his pretrial

motion to sever Appellant’s and Shealey’s trials. Appellant has

failed to prove either component of this ineffectiveness claim.

       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. See Lupoe v. State, 

 (

)

(2016).

       In ruling on a severance motion, the 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;
                                  19
     and (3) the presence or absence of antagonistic defenses.

 (citation and punctuation omitted). The joint trial in

this case involved only two co-defendants; Appellant was tried for

almost the same crimes as Shealey with respect to the fatal shooting

(along with additional crimes related to the prior park shooting); the

evidence and the law were substantially the same for both

defendants; the State’s theory was that they and their co-indictees

acted together to commit the crimes; Appellant has identified no

evidence admitted against Shealey that was not also admissible

against Appellant; and the trial court instructed the jury to

determine the guilt or innocence of each defendant separately. See

.

     Appellant asserts that severance would have been required

because the evidence of his affiliation with 4way was weaker than

the evidence that Shealey was a member of the gang. As we have

explained, however, to obtain a severance “it is not enough for the

defendant to show that . . . the evidence against a co-defendant is

stronger.” Nicholson v. State, 

 (

) (2019)

                                 20
(citation and punctuation omitted). Moreover, the evidence that

Appellant was involved in the shootings was actually stronger than

the evidence of Shealey’s involvement. See Walter v. State, 

 (

) (2018).

     Appellant also asserts that the trials should have been severed

because Shealey’s defense theory — that he was merely present in

Green’s car when Appellant and other members of 4way shot toward

Tucker — was antagonistic to Appellant’s defense that he was not

involved in that shooting (or the park shooting). However,

     the mere presence of antagonistic defenses is insufficient
     to require severance in a non-death penalty case; instead,
     the defendant must show that “considering these
     antagonistic defenses, a joint trial was so prejudicial as to
     amount to a denial of his right to due process.”

Palmer v. State, 

 (

) (2018) (citation

omitted). In an attempt to demonstrate this level of prejudice,

Appellant points primarily to the opening statements, during which

Shealey’s counsel said that Appellant was “a killer” and that “the

only person that’s going to take the stand is going to be Mr. Shealey

. . . . because he is asserting his innocence.” But any prejudice from

                                  21
those comments was limited by the trial court’s instructions to the

jury that the opening statements were not evidence and that in

reaching its verdicts, the jury could not consider the defendants’

decisions not to testify.13 Thus, Appellant has not shown that

Shealey’s defense theory required a severance of the trials. See, e.g.,

Walter, 

 (concluding that severance was not required

where the co-defendants blamed the defendant for the shooting

while asserting that they were not present during or did not

participate in the murder); Palmer, 

 (holding that

severance of a joint trial was not required where the defendant

claimed that he did not commit the crimes while his co-defendant

claimed that the defendant pressured him into robbing the victims).

      For these reasons, if Appellant’s trial counsel had requested a

ruling on the severance motion, the trial court would not have

abused its discretion by denying it. Appellant has therefore failed to

show deficient performance or prejudice, so this ineffectiveness



      13 In fact, as mentioned above, Shealey, like Appellant, ultimately elected

not to testify.
                                       22
claim fails. See, e.g., Lupoe, 

.

     (b) Appellant claims next that his trial counsel was ineffective

for failing to obtain a ruling on his motion to suppress evidence

derived from a search warrant for Appellant’s Facebook account. We

disagree.

     Shortly after the shootings, investigators learned through

interviews with several witnesses that a person known as “K.J.” was

involved in the crimes. Five days after the shootings, an investigator

obtained a search warrant for a Facebook account that belonged to

“John Doe A[K]A ‘K.J.’” The search warrant listed the crime of

aggravated assault as the basis for the warrant, and an attachment

to the warrant described the many things to be seized, which

included a wide range of data from the account.14 The execution of


     14   The data to be seized included, among other things, all contact
information; photos and photo metadata; neoprints, links to videos, photos,
articles, and other items; notes and postings; friend lists and groups;
comments; search history; communications and messages; log data including
all IP addresses that logged into the account; information about the use of
Facebook Marketplace; length of service and types of service and payments;
privacy and account settings; records pertaining to communications between
Facebook and any person regarding the user or the user’s account; location
history; websites visited while logged into Facebook; website or mobile

                                    23
the search warrant revealed Facebook messages between “K.J.” and

Daniel, which led investigators to interview Daniel. During the

interview, she identified K.J. as Appellant, and he was later located

and arrested.

     Before trial, Appellant’s counsel filed as part of an omnibus

motion a “preliminary motion to suppress” evidence “illegally seized

from [Appellant],” generally asserting, among other things, that the

search warrant lacked sufficient particularity. The trial court did

not rule on the motion, and counsel never requested a ruling. At

trial, the court admitted several items of evidence collected as a

result of the search warrant for Appellant’s Facebook account,

including the messages between Appellant and Sands about the

TEC and pistol on the day of the shootings; messages and photos

related to the evidence admitted under OCGA § 24-4-404 (b) showing

that Appellant asked to borrow a gun to shoot up a house about three

months before the murder; and other messages and photos linking



applications registered using Facebook credentials;   and   Instagram,
Messenger, or What’s App account usernames.
                                 24
Appellant to the 4way gang.

     Appellant claims that all of the evidence garnered from the

search warrant should have been suppressed because the warrant

was overbroad and therefore violated the Fourth Amendment’s

particularity requirement. See Bryant v. State, 

(

) (2017) (explaining that a search warrant that does

not particularly describe the things to be seized violates the Fourth

Amendment). Specifically, he argues that the warrant improperly

required the disclosure of virtually all of his Facebook data without

the data being limited to the date of the aggravated assault that

served as the basis for the warrant.

     In support of this argument, Appellant relies primarily on

United States v. Blake, 

 (11th Cir. 2017), in which a

panel of the United States Court of Appeals for the Eleventh Circuit

said in dicta that two search warrants issued after the defendant

was arrested for participation in a conspiracy to prostitute minors

“unnecessarily” required the “disclosure to the government of

virtually every kind of data that could be found in” the defendant’s

                                 25
Facebook account. 

. After observing that the search

warrants “should have requested data only from the period of time

during which [the defendant] was suspected of taking part in the

prostitution conspiracy,” 

 the court expressly pretermitted

deciding whether the warrants violated the Fourth Amendment,

holding instead that the evidence they produced fell within the good

faith exception to the exclusionary rule set forth in United States v.

Leon, 

 (

, 82 LE2d 677) (1984). See Blake,

.15

      Eleventh Circuit holdings (much less dicta), even on federal

law questions, are not binding on Georgia courts. See Lofton v. State,

, 777 n.6 (

) (2021). And in any event, Blake

did not involve circumstances like this case, where a murder




      15 In Gary v. State, 

 (

) (1992), this Court held

that Georgia statutory law does not recognize Leon’s exception to the
exclusionary rule for evidence obtained by officers relying in good faith upon
the validity of a search warrant that is later found to be invalid. See 

.
We recently explained that Gary’s reasoning was unsound and declined to
extend it to other exclusionary rule exceptions, while deeming it unnecessary
to determine whether Gary’s specific holding should be overruled. See Mobley
v. State, 

, 73-75 & n.21 (

) (2019).
                                        26
suspect’s identity and location were unknown to investigators at the

time the search warrant was issued. Appellant does not cite, and we

have not found, any United States Supreme Court or Georgia

appellate precedent that clearly holds that a search warrant

requesting a wide range of data from a defendant’s social media

account violates the Fourth Amendment under these circumstances.

See Brannon v. State, 

 (

) (2016) (“In

describing the items to be seized pursuant to a search warrant, the

degree of specificity required is flexible and will vary with the

circumstances involved.” (citation and punctuation omitted)).16


      16 Indeed, less than a year after Blake (and four months after Appellant’s

trial), another Eleventh Circuit panel held in United States v. Alford, 

 (11th Cir. 2018), that a trial court properly denied a defendant’s
motion to suppress evidence garnered from the execution of a search warrant
that requested “nearly every kind of data that could be found in [the
defendant’s] Google account,” because investigators did not know the
defendant’s identity when the warrant was issued and “the information
requested was all potentially incriminating because it could have identified the
[suspect].” Id. at 652-653. And even putting aside the issue of Appellant’s thenunknown identity and location in this case, we note that at the time of his trial,
some courts in other jurisdictions had upheld search warrants requesting
broad disclosure of data from a defendant’s social media account, see, e.g.,
United States v. Ulbricht, 

 (2d Cir. 2017), abrogated on
other grounds by Carpenter v. United States, 

 (

, 201
LE2d 507) (2018); United States v. Pugh, Case No. 1:15-CR-00116-NGG, 

, at *26-27 (E.D. N.Y. Dec. 21, 2015), although some others had

                                       27
      Given the lack of binding appellate precedent on this issue,

Appellant has not carried his burden of showing that his trial

counsel’s failure to press for a ruling on the particularity of the

Facebook search warrant was patently unreasonable, and this claim

fails. See Sawyer v. State, 

 (

) (2020)

(“[T]rial counsel’s failure to raise a novel legal argument does not

constitute ineffective assistance of counsel.”); Esprit v. State, 

, 438 (

) (2019) (“A criminal defense attorney does not

perform deficiently when he fails to advance a legal theory that


not, see, e.g., People v. Osejo, Case No. A143092, 

, at *8 (Cal.
App. May 31, 2017) (unpublished). Whether a search warrant for a defendant’s
entire social media account meets the Fourth Amendment’s particularity
requirement continues to be an evolving area of the law, which neither the
United States Supreme Court nor our State’s appellate courts have yet
resolved. See, e.g., Alford, 744 Fed. Appx. at 652-653; United States v.
Hamilton, Case No. 6:18-CR-57-REW-10, 

, at *4-6 (E.D. Ky.
Aug. 30, 2019) (saying in dicta that a warrant authorizing a search of
essentially all of the defendant’s Facebook data for a ten-month period was
overbroad because the warrant should have targeted certain categories, but
holding that the warrant fell into the Leon good faith exception to the
exclusionary rule); United States v. Liburd, Case No. 17-CR-296 (PKC), 

, at *2-3 (E.D. N.Y. June 5, 2018) (holding that a search warrant
was not overbroad in allowing the FBI to search the entire contents of the
defendant’s Facebook account because there was probable cause to believe that
the account contained evidence of criminal activity and noting that “‘avoiding
the intrusiveness of a search [of a Facebook account] while maintaining its
efficacy is largely infeasible’” (citation omitted)).

                                      28
would require ‘an extension of existing precedents and the adoption

of an unproven theory of law.’” (citation omitted)).17

      (c) Appellant claims that his trial counsel should have

requested a jury instruction on the requirement for corroboration of

accomplice testimony. See OCGA § 24-14-8. Even assuming that

counsel performed deficiently in this respect, Appellant has failed to

show prejudice.

      “[I]t is well settled that an accomplice’s testimony may be

corroborated by the testimony of another accomplice.” Jordan v.

State, 

 (

) (2019). The five co-indictees

who testified that Appellant was involved in the shootings — Green,

Lee, Rutledge, Holloway, and Gilliam — substantially corroborated

each other’s testimony. Their testimony was also corroborated by



      17 As Appellant points out in his brief, the search warrant cited an
incorrect section of the Georgia Code for the crime of aggravated assault.
However, “[m]ere typographical or clerical errors do not ordinarily provide a
basis to suppress evidence.” Dent v. State, 

 (

)
(2018). See also OCGA § 17-5-31. Thus, Appellant’s trial counsel did not
perform deficiently by failing to challenge the search warrant on this ground
either. See Keller v. State, 

 (

) (2020) (explaining
that trial counsel cannot be found deficient for failing to file a meritless motion
to suppress evidence).
                                        29
other evidence, including Appellant’s Facebook message to Sands

about the TEC handgun on the day of the murder, Todd’s testimony

that Appellant shot from her car into the Granger Park lot, and his

admission to Daniel that he was involved in a shooting and had

killed someone.

     Appellant argues that his trial counsel’s failure to request an

accomplice-corroboration instruction was prejudicial because a

prosecutor mentioned in closing argument that the testimony of a

single witness is sufficient to establish a fact. But the trial court did

not give the jury a single-witness instruction, and the court charged

the jury that it is the court’s duty to instruct on the law that applies

to the case. In sum, Appellant has not shown a reasonable

probability that his trial counsel’s failure to request an accomplice-

corroboration instruction affected the outcome of his trial. See

Jordan, 

; Robinson v. State, 

 (

) (2018); Huff v. State, 

 (

)

(2017).

     (d) Finally, Appellant claims that his trial counsel provided

                                   30
ineffective assistance by failing to request a proper limiting

instruction on the other acts evidence. At a pretrial hearing, the trial

court ruled over the objection of Appellant’s counsel that Appellant’s

messages to an unknown person on Facebook asking to borrow a gun

to “shoot somebody[’s] house up” about three months before Tucker’s

murder would be admissible as other acts evidence for the purposes

of showing intent and plan under OCGA § 24-4-404 (b).18 At trial,

before that evidence was presented to the jury, the court instructed

in pertinent part that the evidence was admitted “for the limited

purpose of the State’s trying to show intent and trying to show a

plan” and that the jury could not consider the evidence for any other

purpose or as evidence that Appellant “would be of a character that

he would commit the crimes alleged in the indictment.”

     Appellant contends that his trial counsel should have objected



     18 OCGA § 24-4-404 (b) says in pertinent part:

           Evidence of other crimes, wrongs, or acts shall not be
     admissible to prove the character of a person in order to show
     action in conformity therewith. It may, however, be admissible for
     other purposes, including, but not limited to, proof of . . . intent [or]
     plan[.]

                                        31
to the limiting instruction on the ground that the other acts evidence

was not admissible for the purpose of showing a plan. But even

assuming (without deciding) that the other acts evidence was not

admissible for that particular purpose,19 and that trial counsel was

deficient in this respect, Appellant has not established prejudice.

The trial court also admitted the evidence for the purpose of showing

intent, and Appellant does not challenge the admission or the jury’s

consideration of the evidence for that purpose.20 This evidence,

which was admissible for one purpose and came with a limiting

instruction that it could not be considered as evidence of Appellant’s

character, was tangential to the strong direct evidence of Appellant’s

involvement in the shootings. Accordingly, there is no reasonable

probability that the outcome of Appellant’s trial would have been

different had the jury not been instructed that it could consider the

evidence for the additional purpose of showing a plan. See, e.g.,




     19 We discussed two different types of “plan” evidence in Heard v. State,

, 87-88 & n.16 (

) (2020).
      20 Because Appellant does not dispute the admission or consideration of

this evidence to show his intent, we render no opinion on those issues.
                                     32
Armstrong v. State, 

, ___ (

) (2020) (holding

that trial counsel was not ineffective for failing to seek a limiting

instruction regarding the purpose for which evidence was admitted

under OCGA § 24-4-404 (b), because the appellant did not show that

the absence of the instruction probably affected the outcome of his

trial); Davis v. State, 

 (

) (2017)

(concluding that trial counsel was not ineffective for failing to

request a limiting instruction regarding evidence of the appellant’s

prior altercations with others, because the appellant could not show

prejudice in light of the “strong evidence against him at trial”).

      Appellant also argues that his trial counsel should have

requested that the trial court give a second limiting instruction

during its final jury charge. But he cites no pertinent authority that

would have required the trial court to twice provide such an

instruction, and we have found none. Cf. Brewner v. State, 

 (

) (2017) (concluding that trial counsel was not

ineffective   for   failing   to   request   a   limiting   instruction

contemporaneous with the admission of evidence under OCGA § 24-

                                   33
4-404 (b), where the trial court gave such an instruction during the

final charge). Appellant therefore has not shown that his trial

counsel performed deficiently in this respect. This claim of

ineffective assistance, like the others, fails.21

      Judgment affirmed. All the Justices concur.



                       DECIDED FEBRUARY 15, 2021.
          Murder. Troup Superior Court. Before Judge Palmer.
          Matthew K. Winchester, for appellant.
          John H. Cranford, Jr., District Attorney, John C. Winne,
Assistant District Attorney; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K.
Smith, Senior Assistant Attorney General, Kathleen L. McCanless,
Assistant Attorney General, for appellee.




      21 Appellant also asserts that the cumulative effect of his trial counsel’s

alleged errors prejudiced the outcome of his trial. But even considering the
combined effect of the deficiencies assumed in Division 3 (c) and (d), we
conclude that Appellant has not demonstrated a reasonable probability that
the outcome of his trial would have been different in the absence of the
deficiencies alleged. See, e.g., Bentley v. State, 

 (

)
(2019); Toomer v. State, 

 (

) (2012).
                                       34