¶1In the Supreme Court of Georgia
¶2 Decided: November 2, 2021
¶3 S21A0771. ASH v. THE STATE.
¶4 BETHEL, Justice.
¶5 A Fulton County jury found Jabarri Ash guilty of malice
¶6murder and other crimes arising from the shooting death of Mario
¶7Shaw. On appeal, Ash argues that the trial court erred by admitting
¶8evidence of his prior convictions pursuant to OCGA § 24-4-404 (b);
¶9that the trial court erred by admitting, pursuant to OCGA § 24-8-
¶10807, evidence of certain statements made by Shaw; that the State
¶11improperly destroyed exculpatory evidence; that the trial court
¶12plainly erred in its instructions to the jury; and that the cumulative
¶13harm of these errors affected the trial’s outcome such that he should
¶14receive a new trial. For the reasons set forth below, we affirm. 1
¶15 1The crimes occurred on February 21, 2013. On June 28, 2013, a Fulton County grand jury returned an indictment against Ash charging him with 1. The evidence presented at trial showed the following. 2 Ash,
¶16Shaw, Brian Terrell, David Minor, and Jonathan Ash (Ash’s brother)
¶17were friends who grew up together in Atlanta. Beginning in high
¶18school, they were in the business of selling cocaine and marijuana.
¶19 Ash was known to carry a .44- or a .38-caliber revolver. Terrell
¶20testified that Ash was known by the nicknames “Big” and “Big Boy”
¶21because “he was the biggest person around.” Jonathan drove a white
¶22SUV that Ash also drove from time to time.
¶23malice murder (Count 1), felony murder (Counts 2 and 3), aggravated assault with a deadly weapon (Count 4), possession of a firearm by a convicted felon (Count 5), and possession of a firearm during the commission of a felony (Count 6). A jury trial held from August 25 to September 2, 2015, ended in a mistrial. Ash was later re-tried from March 15 to March 25, 2016, and the jury found him guilty of all counts. On March 30, 2016, the trial court sentenced Ash to life in prison on Count 1 and terms of five years in prison each on Counts 5 and 6, to be served concurrently with Count 1. The remaining counts were merged for sentencing or vacated by operation of law. On April 4, 2016, Ash filed a motion for new trial, which he amended through new counsel on June 21, 2019, and February 17, 2020. The trial court held two hearings on the motion, as amended, and denied the motion on December 7, 2020. Ash filed a notice of appeal on December 28, 2020. This case was docketed in this Court to the term commencing in April 2021, and oral argument was held on June 9, 2021. 2 Because, as discussed below, we must determine whether an assumed
¶24error on the part of the trial court was harmless, “we review the evidence de novo and weigh it as a reasonable juror would, rather than reviewing it in a light most favorable to upholding the jury’s verdicts of guilty.” (Citation omitted.) Taylor v. State, 306 Ga. 277, 283 (2) (830 SE2d 90) (2019).
¶25 2 In December 2012, Jonathan was driving his SUV with Shaw
¶26in the passenger seat when they were stopped by the police at a DUI
¶27checkpoint. After smelling unburnt marijuana and seeing
¶28marijuana and an open container of alcohol on the rear floorboard of
¶29the SUV, the police arrested Jonathan and Shaw and searched
¶30them. The police found marijuana and $1,004 in cash on Shaw’s
¶31person. Jonathan had over $10,000 in cash, but he had no drugs on
¶32his person. Because the marijuana appeared to be packaged for
¶33distribution, the police charged both men with possession of
¶34marijuana with intent to distribute and impounded the SUV.3
¶35 Jonathan was again arrested in January 2013 for aggravated
¶36battery and armed robbery. At the time of the arrest, Jonathan had
¶37more than $75,000 in cash in a shoebox in his vehicle, a red sedan.
¶38 The group used Jonathan’s house to store drugs. Shaw told
¶39Terrell that he was at the house when he heard that the police had
¶40arrested Jonathan. Apparently anticipating a search, Shaw
¶41 3 A police officer testified that no “hold” was placed on the vehicle after it was impounded. 3 retrieved what he thought were all of the illegal drugs in the house
¶42and took them to his mother’s house. The police later searched
¶43Jonathan’s house. During the search, the police found 16 ounces of
¶44cocaine, 13 ounces of marijuana, two jars containing marijuana
¶45residue, and 29 Ecstasy pills in the house. At some point following
¶46the search of Jonathan’s house, Shaw returned the drugs, but Ash
¶47accused him of not returning all of the drugs he had taken.
¶48 Terrell talked with Shaw about being arrested with Jonathan,
¶49and Terrell was among those (including Ash) who thought that
¶50Shaw should “take the charge” and exonerate Jonathan. In their
¶51conversation, Shaw said that he knew Ash blamed him for
¶52Jonathan’s arrests and that Ash believed the drugs in Jonathan’s
¶53SUV and house actually belonged to Shaw. According to Terrell, Ash
¶54and Shaw had a “heated” conversation about the drugs. Ash was
¶55“upset” with Shaw for not taking the blame for the drugs. Even after
¶56Shaw took the drugs from the house before the police search, Shaw
¶57told Terrell that he thought Ash was still “upset” with him. Despite
¶58his anger with Shaw, Ash continued to provide Shaw with drugs to
¶59 4 sell.
¶60 In early February 2013, Letavia Gowdy and her mother,
¶61Denise Gowdy, moved into Shaw’s apartment. Shaw sold marijuana
¶62at the apartment, and he told Letavia and Denise to lock all the
¶63doors when they left the apartment. Denise testified that people
¶64were regularly coming to the apartment to buy drugs when Shaw
¶65was there.
¶66 Denise testified that, during the first week she was staying in
¶67the apartment, Ash, whom she only knew as “Big Boy” at the time,
¶68visited Shaw three times.4 On the first visit, Ash and Shaw had a
¶69“tense” and “hostile” argument regarding an incident between Shaw
¶70and Ash’s brother. On the second visit, Shaw did not allow Ash into
¶71 4During an interview with the police, Denise viewed a six-person photographic lineup prepared by the police. Denise identified one of the photographs as a person she said looked like “Big Boy.” The detective who conducted the photo lineup testified that Denise identified Ash in the lineup, and the lineup with Denise’s identification of “Big Boy” was admitted into evidence at trial. Denise was also able to show the police where Ash lived. His apartment was roughly a ten-minute drive from Shaw’s apartment, which Denise knew because she had gone there with Shaw. Denise told the police and testified at trial that “Big Boy” wore glasses and was “overweight” with a “caramel” complexion. At trial, Denise identified Ash as “Big Boy” by pointing him out in the courtroom. 5 the apartment. On the third visit, Denise told Ash that Shaw was
¶72not there. On that visit, Denise saw a white SUV parked outside.
¶73Denise described Shaw as “paranoid and annoyed” after Ash’s visits,
¶74and she testified that she knew there were “issues” and “concerns”
¶75between them. Letavia also noticed that Shaw’s demeanor changed
¶76during this time. When she first met Shaw in early February, he was
¶77“very nice,” but Letavia testified that he smiled less and seemed to
¶78spend more time “in deep thought” by the middle of the month.
¶79 Letavia and Denise last saw Shaw alive around 7:00 or 8:00
¶80p.m. on February 20, 2013, when Denise took Letavia to work. When
¶81Letavia returned to the apartment around 3:30 a.m. on February 21,
¶82she saw that the doors to the apartment were unlocked. She went
¶83inside and saw Shaw lying on the floor with blood pooled around his
¶84head. She also saw marijuana in the apartment. She did not see
¶85anything out of place, and the apartment did not appear to have
¶86been ransacked or robbed. She went outside, arranged a ride to the
¶87house of a friend, and called 911 just before 4:00 a.m. Her friend took
¶88her back to Shaw’s apartment, and they arrived as firefighters were
¶89 6 pulling into the complex. Denise also returned to the apartment
¶90around 4:00 a.m.
¶91 Several police officers responded to the 911 call. Inside the
¶92apartment, Shaw was dead, lying face down with his hands under
¶93his body. The medical examiner determined that Shaw was shot
¶94twice, once in the back of his head and once in his left lower torso.
¶95The medical examiner recovered two bullets from Shaw’s body, and
¶96a GBI firearms examiner determined that the same firearm fired
¶97both bullets from what was either a Ruger, Colt, or High Standard
¶98.38 Special revolver or a .357 Magnum revolver. The medical
¶99examiner concluded that Shaw’s death was caused by the gunshots
¶100to his head and torso and that the manner of death was homicide.
¶101 Prior to Shaw’s shooting, Roger Cook, the apartment complex’s
¶102security guard, often saw a man he knew as “Big Boy” visiting Shaw
¶103and driving a white SUV. In the weeks leading up to the shooting,
¶104Cook noticed that Shaw became “stressed” and “worried,” acted
¶105“strangely,” and began walking around with a handgun.
¶106 The night of Shaw’s shooting, Cook was watching television
¶107 7 and playing videogames in his townhome, which was across the
¶108parking lot from Shaw’s apartment. Cook responded to a noise
¶109complaint and told a person in a white SUV parked in front of
¶110Shaw’s apartment to lower the music. 5 Cook then began a foot patrol
¶111around the apartment complex and, moments later, saw “Big Boy”
¶112in the white SUV as it drove quickly past him.6 As he continued his
¶113 5 Cook spoke with the lead detective at the crime scene and at a later interview at the police station. Cook first stated that he spoke to the driver of the SUV when responding to the noise complaint around 1:00 a.m. but later said that it was between 2:30 and 3:00 a.m. Cook also said that the person he spoke to had glasses, a beard, and a “dark complexion.” Cook initially told the detective that he saw this man regularly but later said that he had never seen that person before and that he “[couldn’t] remember” and “[didn’t] know” the name or nickname of the man he spoke to. Cook also told the police that, while doing his rounds after speaking to the person in the SUV, he saw a man sitting in the driver’s seat of the SUV looking up at the apartment and then another man with a “light complexion” and “matching the description of Big Boy,” whom Cook “had seen before,” coming down the stairs of the apartment building and getting into the passenger side of the SUV. Cook said that he had previously seen this man coming to the apartment complex in a red Dodge Charger. The detective who interviewed Cook testified that when he interviewed Cook at the police station, some of his statements were consistent with what Cook had said at the scene, but some of them were not. The detective described Cook’s competing statements as “confusing.” During his crossexamination, Cook stated that the person he spoke to in the SUV was “Big Boy.” Cook described “Big Boy” as “broad, wearing black glasses with rectangular shading; beard smooth; smooth, clean cut; . . . curly, wavy hair.” The lead detective testified that this description Cook gave of “Big Boy” was consistent with Ash’s appearance. 6 In its briefing, the State claims that Cook specifically identified Ash as
¶114the man in the SUV, but a careful review of the record shows that Cook never
¶115 8 patrol, Cook saw that the front doors to Shaw’s apartment were wide
¶116open and the lights inside the apartment were on. Cook saw Shaw’s
¶117body on the floor and attempted to call the police. 7 Cook later
¶118realized that a sound he had heard earlier while he was playing
¶119videogames was likely a gunshot. 8
¶120 According to Nichole Stevens, Ash’s girlfriend at the time, Ash
¶121specifically identified Ash as “Big Boy” or as the man he saw in the white SUV the night of Shaw’s shooting. In addition, it appears that when shown a photo lineup with Ash’s picture in it, Cook said the man he saw on the night of Shaw’s shooting looked more like someone else in the lineup. Cook was not asked by the prosecutor or defense counsel whether “Big Boy” was present in the courtroom when he testified. During his direct examination, however, Cook testified that as the white SUV drove past him, he was standing on the driver’s side of the vehicle and that the area was well-lit. Cook testified that he was “absolutely sure” that “Big Boy” was driving the SUV as it sped away. 7 Cook testified that he had poor cell phone reception and that the call
¶122would not connect. He testified that he later realized that someone else had called 911 when paramedics and police responded to the scene. These statements appear to be contradicted by statements Cook made to the lead detective when he was interviewed at the scene; in those statements, Cook mentioned nothing about going up to Shaw’s apartment and suggested to the detective that he only learned that there had been a shooting at the complex when his brother knocked on his front door around 4:00 a.m. 8 During his testimony, Cook admitted that he had previously pled guilty
¶123to impersonating a law enforcement officer in Chicago, Illinois. He explained that in the 1990s, he worked with local police and bail bondsmen as a bounty hunter and indicated that he had been arrested because “different states recognize it, some states don’t” and that “Chicago didn’t allow bounty hunters or bail bondsmen.” Cook also admitted that he pled guilty in 2005 to a separate charge of impersonating an officer with the Fulton County Sheriff’s Office when he identified himself as “Officer Cook” while working as a security officer. 9 was at her apartment in Riverdale on the evening Shaw was shot.
¶124Stevens testified that they had a trip to Florida planned for the
¶125following morning and that they had been packing and preparing for
¶126it that day. At some point in the evening, Ash left the apartment and
¶127“went on about his evening.”
¶128 Between 9:00 and 10:00 p.m. that night, Terrell was at the 50
¶129Yard Line bar, which was about a ten-minute drive from Shaw’s
¶130apartment at that time of night. Terrell was selling marijuana and
¶131cocaine to several men he had met earlier in the week. They stayed
¶132at the bar for “three or four” hours and then left to play pool at the
¶133Brazilian Club near Camp Creek Parkway. Terrell returned to the
¶134hotel where he was staying around 3:00 a.m.
¶135 Ash called Terrell just before 3:00 a.m. and told him to come
¶136back to the 50 Yard Line bar. Terrell met him there around 3:30,
¶137and the two stayed there until about 4:00 a.m. Just after 4:00 a.m.,
¶138Ash sent Stevens a text message saying that Shaw had been “found
¶139dead.” After Ash and Terrell left the 50 Yard Line, they went to the
¶140Brazilian Club. They stayed until about 5:30 a.m. During their time
¶141 10 together, Ash did not mention anything about Shaw to Terrell.
¶142Terrell said that Ash was driving a black sedan that belonged to
¶143Stevens.
¶144 About 20 minutes after they left the Brazilian Club, Ash called
¶145Terrell and asked if he could leave for Florida that day. According to
¶146Terrell, this surprised him because he thought the trip was planned
¶147for the following day.9 Terrell testified that one of the purposes of
¶148the trip was to retrieve some cocaine that had been left with Minor
¶149(who lived in Jacksonville, Florida) a few days before.
¶150 After Ash left the Brazilian Club, he drove to Stevens’s
¶151apartment and showered and changed clothes. Stevens then washed
¶152the clothes Ash had been wearing with her other laundry. In an
¶153interview with the police and in her trial testimony, Stevens denied
¶154that she destroyed the clothes Ash had been wearing when he came
¶155to the apartment. 10
¶156 9 Terrell’s testimony appeared to contradict earlier statements he had made to the police in which he told Ash at the 50 Yard Line, “we got to be up and go in the morning if we supposed to be going.” 10 The lead detective testified that Stevens was not charged with murder
¶157or with tampering with evidence. 11 Ash and Stevens left the house later in the morning and, after
¶158picking up Terrell and his girlfriend, began driving to Jacksonville.
¶159During the drive, Ash and Terrell began receiving calls about Shaw
¶160being killed. According to Stevens, Ash and Terrell both reacted to
¶161the news with “shock” and “disbelief.” According to Terrell, this was
¶162the first time he had heard anything about Shaw’s death. After
¶163overhearing the conversations, Stevens believed that Shaw’s murder
¶164stemmed from “quarrels” or disagreements” involving Ash’s brother.
¶165The group continued driving to Jacksonville and arrived in the early
¶166afternoon.
¶167 Ash and Terrell met Minor, and the three drove around town
¶168together. Minor testified that, while the three were in the car
¶169together, Ash said that he had “finessed” Shaw by making him feel
¶170comfortable and letting him into his apartment and that he then
¶171killed Shaw by shooting him twice with a .44 or .38 revolver. 11 Minor
¶172 11 At trial, Terrell first testified that when he, Ash, and Minor were together in Florida after Shaw’s shooting, Ash “didn’t say anything at all” about the shooting. Terrell later testified that he overheard a “heated” conversation in which Ash accused Minor of “finessing” some cocaine, meaning
¶173 12 testified that Ash said he killed Shaw because of money that Shaw
¶174owed to Ash and because of “a charge that his brother caught when
¶175him and [Shaw] were together.” According to Minor, Ash was also
¶176angry with Shaw because he had given Shaw some cocaine but Shaw
¶177never paid him for it. When Ash confronted Shaw about this at his
¶178apartment, the two argued, Shaw refused to pay, and then Ash shot
¶179him twice. Minor testified that he was upset when he learned that
¶180Shaw had been killed but that Ash told him “You get what you get.
¶181What you give out is what you get in return, like karma.” Minor took
¶182this to mean that Ash was saying Shaw “got what he deserved.”
¶183 A few days after his conversation with Ash, Minor called the
¶184Crime Stoppers anonymous tip line. He later spoke with the lead
¶185that he diluted it by adding another substance to it. In that conversation, Terrell also overheard Ash say something to Minor about “finessing” Shaw. Terrell explained, however, that the conversation was solely about adding substances to cocaine, not Shaw’s shooting. Terrell later testified that Ash and Minor were also “clashing” because Minor had slept with Ash’s girlfriend, Jasmine, a week or so before Shaw’s shooting. In his trial testimony, Minor admitted that he and Jasmine had sex a few days before Shaw was killed and that Ash had confronted him about it. Minor denied that he made up the story about Ash confessing to Shaw’s killing because of his relationship with Jasmine and denied that Ash had accused him of diluting drugs.
¶186 13 detective in the case to report that Ash had admitted killing Shaw. 12
¶187Minor told the detective that Ash said he shot Shaw twice with a
¶188revolver. 13 Minor told the detective that Ash said he shot Shaw for
¶189“payback” for Jonathan being in jail for charges that Shaw should
¶190have taken.
¶191 Minor also told the detective he had seen Ash driving a white
¶192SUV when Ash visited him in Florida a few days before Shaw’s
¶193shooting. The detective testified that the description Minor gave of
¶194the SUV matched the description given by Cook and the Gowdys.
¶195Minor also told the detective that Stevens told him that, on the night
¶196 12 In his testimony, Minor acknowledged that people who provide tips that lead to an arrest or conviction may receive compensation and that he asked to be paid for providing the tip, but he denied that he needed money or that he reported the crime to get money. Minor explained that he called Crime Stoppers because he and Shaw were friends. The defense also introduced evidence that Minor pled guilty to grand theft in 2015 in Florida based on an incident in which he stole $1,180 from a gas station. 13 The detective testified that, other than the Gowdys and Cook, Minor
¶197was “one of the first” witnesses he spoke to about the shooting and that he was the first witness to provide any information about the type of gun that might have been used in the shooting. According to the detective, Minor’s statement that Ash had used a revolver was consistent with the evidence at the crime scene, where no shell casings had been recovered. The State presented evidence that when a revolver is fired, the shell casings remain in the chamber and are not automatically ejected as they would be when a pistol is fired. 14 of Shaw’s shooting, she washed the clothes Ash was wearing when
¶198he came to her house and “got rid of them, discarded them.”
¶199 Stevens was later interviewed at the police station. She first
¶200told the detective that Ash had been with her “24/7” from February
¶20119 to February 21 and that she last saw him on February 21 in
¶202Florida. The detective testified that he knew that the first statement
¶203was untrue because he had records of a text message that made it
¶204clear that Ash had been away from Stevens’ apartment on the night
¶205of Shaw’s shooting. The detective further testified that when he
¶206confronted Stevens with the text message, her demeanor changed
¶207and she “changed her story” and said that Ash came to her
¶208apartment between 3:30 and 4:00 a.m. the night of the shooting and
¶209wanted to wash his clothes. She also told the detective that there
¶210was conflict between Shaw and Ash over Jonathan and that the 4:00
¶211a.m. text message from Ash said that “Mario Shaw was found dead.”
¶212 The detective later confronted Stevens about whether
¶213February 21 was actually the last time she saw Ash. Stevens then
¶214admitted that, after the trip to Florida, she flew home to Atlanta but
¶215 15 returned to Florida a few days later to retrieve $6,000 and see Ash. 14
¶216 The detective testified that, following his interview of Stevens,
¶217Ash became the “prime suspect” for Shaw’s murder. 15 Ash later
¶218agreed to be interviewed by the lead detective and another officer.
¶219On April 5, 2013, after being read the Miranda warnings, 16 Ash said
¶220that he was with Stevens for all of February 20 and 21. When
¶221confronted with evidence that he had been away from Stevens
¶222during that time, he admitted that he had gone to the 50 Yard Line
¶223bar with Terrell around 7:00 p.m. on February 20 and stayed there
¶224with him until about 1:00 a.m. on February 21. He said that he then
¶225left to go home to wash his clothes and prepare for a trip to Florida.
¶226Ash said that he first heard about Shaw’s death around 4:00 a.m.
¶227from someone at the 50 Yard Line. He also told the detective he
¶228 14 At trial, Stevens testified that she flew back to Atlanta separately from the rest of the group a few days after they arrived in Jacksonville. When Ash returned to Atlanta, he was driving a rental car. According to Stevens, she returned to Florida in March to pick up around $1,900 for Ash. She did not elaborate as to where, why, or from whom she picked up the money. 15 The detective testified that Ash first became a suspect after the
¶229detective’s initial interview with Denise. 16 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
¶230(1966). 16 returned to Stevens’s apartment around 4:00 a.m. When confronted
¶231by the detective with the text message he sent to Stevens, Ash told
¶232the detective that he was staying at a hotel that night but could not
¶233remember the name of the hotel. He then told the detective that he
¶234returned to Stevens’s apartment around 8:00 a.m. Ash denied ever
¶235having a gun, stating that he was a felon and could not possess one.
¶236Ash said that he and Shaw were “good friends” who “never had any
¶237beef with each other.” Ash first denied that he and Shaw sold drugs
¶238but later admitted that they were in the drug business.
¶239 The detective interviewed Terrell on April 8. He told the
¶240detective that Ash sometimes carried a Ruger revolver. The
¶241detective also testified that records showing the location of Terrell’s
¶242phone throughout the evening of February 20 and the morning of
¶243February 21 were consistent with Terrell’s statements about his
¶244whereabouts. After the interviews, the detective obtained an arrest
¶245warrant for Ash for Shaw’s murder.
¶246 At Ash’s trial, the State presented evidence of an altercation
¶247between Ash and Hulit Colton in May 2008. Colton confronted Ash,
¶248 17 whom he had never met, after Ash tried to speak to Colton’s
¶249girlfriend on the street. Ash was sitting in his car and then “just
¶250started shooting” once Colton confronted him. Ash’s shots missed
¶251Colton and other bystanders but damaged a nearby car. Ash then
¶252drove away. The State introduced evidence that Ash pled guilty in
¶253June 2009 to two counts of aggravated assault, a felony, arising from
¶254this incident.
¶255 Ash elected not to testify. He called only one witness, a private
¶256investigator who testified that, on a test drive around 3:00 p.m. on a
¶257recent weekday afternoon, it took him approximately 20 minutes to
¶258drive from Shaw’s apartment to the 50 Yard Line bar. On cross-
¶259examination, the investigator stated that there was more traffic at
¶260that time of day than there would be around 1:00 or 2:00 a.m.
¶261 2. Ash first argues that the trial court erred by admitting
¶262evidence of his 2009 convictions as other acts pursuant to OCGA §
¶26324-4-404 (b). Before trial, the State gave notice of its intention to
¶264introduce evidence about the convictions and testimony from Colton
¶265about the incident. The State argued that it wanted to introduce this
¶266 18 evidence for the purpose of showing Ash’s motive and intent with
¶267respect to Shaw’s murder and the other charges in this case. The
¶268State argued that the evidence demonstrated that “when [Ash] has
¶269been wronged, he responds with violence.” Over Ash’s objection, the
¶270trial court determined that the evidence could be admitted for the
¶271purposes of showing motive and intent.
¶272 After Colton testified at trial, the trial court gave a limiting
¶273instruction regarding his testimony. Although that charge indicated
¶274that some evidence could be used only for limited purposes, the trial
¶275court did not specify for what purposes Colton’s testimony or
¶276evidence of Ash’s convictions could be used.17 In its final charge to
¶277the jury before deliberations began, however, the trial court
¶278instructed as follows:
¶279 In order to prove its case in the indictment, the State must show intent. To do so, the State has offered evidence of another act allegedly committed by the accused. You are permitted to consider that evidence only insofar as it may relate to those issues and not for any other purpose.
¶280 17 In the instruction, the trial court stated that “[s]ometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose against that party for which the evidence is limited and not for any other purpose.” 19 You may not infer from such evidence that the defendant is of a character that would commit such an act. The evidence may be considered only to the extent that it may show the elements that the State is required to prove in the crimes charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose. This defendant is on trial for the offenses charged in this bill of indictment only and not for any other act. Before you may consider any other alleged act for the limited purposes stated, you must first determine whether the accused committed the other alleged act. If so, you must then determine whether the act sheds any light on the elements of the offense for which the act was admitted and the crimes charged in the indictment in this trial. Remember to keep in mind the limited use and the prohibited use of this evidence about another act of the defendant. By giving this instruction, the court in no way suggests to you that the defendant has or has not committed any other act nor whether such act, if committed, proves anything. This is solely a matter for your determination.
¶281 In his motion for new trial, Ash again challenged the
¶282admissibility of this evidence. The trial court again rejected Ash’s
¶283argument, and its order denying Ash’s motion for new trial stated
¶284that “the 2009 conviction is relevant to both motive and intent.”
¶285Specifically, the trial court agreed with the State’s argument that
¶286the other acts evidence was “relevant to showing Ash’s intent to
¶287perpetuate violence by using a firearm when he feels he has been
¶288 20 wronged” and relevant for motive because the evidence “help[s]
¶289demonstrate that Ash responds with violence, without reasonable
¶290concern for the consequences, if he feels publicly disrespected.” Ash
¶291contends that these evidentiary rulings were erroneous.
¶292 “On appeal, a trial court’s decision to admit evidence pursuant
¶293to OCGA § 24-4-404 (b) is reviewed for a clear abuse of discretion.”
¶294Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016).
¶295 Under OCGA § 24-4-404 (b), ‘[e]vidence 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,’ but such evidence is admissible for other purposes, including to prove intent and motive.
¶296Kirby v. State, 304 Ga. 472, 479 (4) (819 SE2d 468) (2018). However,
¶297“[d]espite its inclusive nature, Rule 404 (b) prohibits the admission
¶298of such evidence when it is offered solely for the impermissible
¶299purpose of showing a defendant’s bad character or propensity to
¶300commit a crime.” (Citation omitted; emphasis in original.) Thompson
¶301v. State, 302 Ga. 533, 539 (III) (807 SE2d 899) (2017).
¶302 Although the characterizations of the relevance of this
¶303evidence offered by the State and the trial court strongly suggest it
¶304 21 was intended to demonstrate Ash’s propensity for violence, see
¶305Kirby, 304 Ga. at 487 (4) (b) (noting that evidence of a defendant’s
¶306“inclination” toward violence “is a classic improper propensity
¶307argument”), we need not decide whether the trial court abused its
¶308discretion by admitting this evidence, because any such error was
¶309harmless. The test for determining whether a nonconstitutional
¶310evidentiary error was harmless is whether it is highly probable that
¶311the error did not contribute to the verdict. See Jackson v. State, 306
¶312Ga. 69, 80 (2) (c) (829 SE2d 142) (2019). In conducting this harmless-
¶313error review, “we review the record de novo and weigh the evidence
¶314as we would expect reasonable jurors to have done so.” (Citation
¶316 We first note that the trial court’s instructions to the jury
¶317indicated that the only specific purpose for which the evidence of the
¶3182009 incident and convictions could be considered was to show
¶319intent. Thus, as Ash concedes, although the trial court ruled on
¶320multiple occasions that the evidence was also admissible to show
¶321motive, the jury was never instructed as to that use of the evidence,
¶322 22 and the jury is presumed to follow the instructions of the trial court
¶323absent clear evidence to the contrary. See Horton v. State, 310 Ga.
¶324310, 320 (3) (a) (849 SE2d 382) (2020). Ash has presented no
¶325evidence that the jury deviated from the trial court’s instructions
¶326and considered this evidence in regard to motive. Thus, to the extent
¶327the trial court’s determination that the evidence was admissible as
¶328to the issue of motive constituted an abuse of discretion, any such
¶329error was harmless.
¶330 Any error in admitting the evidence for the purpose of showing
¶331intent was likewise harmless. The record reflects that the 2009
¶332convictions served as the predicate felonies for the count of
¶333possession of a firearm by a convicted felon with which Ash was
¶334charged. Also, in his interview with the detective, which was played
¶335for the jury, Ash admitted to being a convicted felon. Thus, Ash’s
¶336prior convictions and the nature of the charges were properly before
¶337the jury for other reasons, leaving only Colton’s description of those
¶338events as additional evidence for the jury to consider. And Colton’s
¶339description of those events was not of a character that would lead a
¶340 23 reasonable juror to seek to “punish” Ash in this case again for the
¶341actions described related to the prior case. Kirby, 304 Ga. at 485 (4)
¶342(a) (i). Finally, we note that neither the prosecutor nor Ash’s counsel
¶343devoted much attention to this evidence in closing arguments.
¶344 Under these circumstances, the evidence of the 2009 incident
¶345and convictions “was not unduly prejudicial, particularly in light of
¶346the trial court’s instructions limiting the jury’s consideration of the
¶347evidence to a matter that turned out to be of no importance and the
¶348fact that the jury learned that [Ash] had pled guilty to his prior
¶349crimes[.]” Tiraboschi v. State, __ Ga. __ (862 SE2d 276, 278 (2))
¶350(2021); see also Howell v. State, 307 Ga. 865, 875 (838 SE2d 839)
¶351(2020) (considering the trial court’s instructions on the limited use
¶352of other-act evidence in determining harmless error, because “[w]e
¶353ordinarily presume that jurors follow their instructions”); Kirby, 304
¶354Ga. at 485 (4) (a) (i) (explaining that the risk that a jury may convict
¶355a defendant not for the offense charged but for his extrinsic conduct
¶356is greater where the extrinsic conduct was not already the subject of
¶357a conviction).
¶358 24 Rather, the central issue in the case was whether it was Ash
¶359who shot and killed Shaw. On that issue, the evidence against Ash
¶360was strong. Minor testified at trial that Ash told him he shot and
¶361killed Shaw, and Minor’s testimony was corroborated by physical
¶362evidence and statements by other witnesses.
¶363 Further, the State introduced the testimony of multiple
¶364witnesses regarding Ash’s anger towards Shaw and his suspicions
¶365that Shaw was responsible for stealing Jonathan’s drugs. In the
¶366days leading up the murder, witnesses observed several
¶367confrontations between Ash and Shaw, including at least one visit
¶368where Shaw refused Ash entry to his apartment. Denise Gowdy’s
¶369testimony about Shaw’s refusal to let Ash enter also helped to
¶370explain why, as Minor testified, Ash would need to “finesse” his way
¶371into Shaw’s apartment on the night of the shooting.
¶372 In addition, Cook’s testimony placed Ash and a white SUV at
¶373the scene of the shooting around the time it occurred. Although his
¶374statements were confusing and contradictory and his credibility was
¶375aggressively questioned at trial, at least one of the descriptions of
¶376 25 the person he identified as “Big Boy” led a detective to conclude that
¶377he had identified Ash. Moreover, although Stevens offered a benign
¶378explanation for washing Ash’s clothes on the night of the shooting,
¶379there was also evidence suggesting that Stevens destroyed the
¶380clothes Ash had been wearing that night. In his interview with the
¶381police, Ash gave inconsistent stories about his movements and
¶382whereabouts on the evening of the shooting.
¶383 Given this evidence, it is highly probable that any error in
¶384admitting the other-acts evidence for the jury to consider in regard
¶385to intent did not contribute to the verdicts. See Jackson, 306 Ga. at
¶38681 (2) (concluding that the erroneous admission of evidence of a prior
¶387shooting did not contribute to the jury’s verdict “given the overall
¶388strength of the other evidence” of guilt); see also Keller v. State, 308
¶389Ga. 492, 503 (5) (842 SE2d 22 (2020) (determining that evidentiary
¶390error was harmless “in light of the strong evidence of [appellant’s]
¶391guilt”). Thus, this enumeration of error fails.
¶392 3. Ash also contends that the trial court improperly admitted
¶393hearsay testimony from Terrell concerning statements Shaw made
¶394 26 to him. Before trial, the State filed a notice of intent to introduce
¶395hearsay evidence pursuant to OCGA § 24-8-807 (“Rule 807”), which
¶396is also known as the “residual” hearsay exception.18 Specifically, the
¶397State sought to admit testimony about Shaw’s statements to Terrell
¶398that Jonathan and Shaw were both arrested for marijuana and cash
¶399found in Jonathan’s car, that Ash told Shaw that Shaw “needed to
¶400own up” for the marijuana found when he and Jonathan were
¶401arrested, that Shaw was not going to claim the drugs were his “right
¶402then,” and that Shaw was “going to wait and see.”
¶403 Over Ash’s objection, the trial court permitted the State to
¶404question Terrell about Shaw’s statements to him under the residual
¶405hearsay exception, determining that, under the totality of the
¶406circumstances, there were particularized guarantees of the
¶407 18OCGA § 24-8-807 provides, in relevant part: A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence. . . . 27 statements’ trustworthiness, Shaw was clearly unavailable to testify
¶408at trial due to his death, and the statements were relevant to a
¶409material fact in the case. On appeal, Ash claims that the trial court
¶410abused its discretion by admitting Shaw’s statements to Terrell
¶411under the residual hearsay exception. We disagree.
¶412 (a) In ruling upon Ash’s residual hearsay claim in his motion
¶413for new trial, the trial court referred to this Court’s decision in
¶414Griffin v. State, 280 Ga. 683, 684 (631 SE2d 671) (2006), which the
¶415trial court noted applied the “necessity” exception to the hearsay
¶416rule set forth in former OCGA § 24-3-1 (b). However, the General
¶417Assembly did not carry over that exception to the hearsay rule into
¶418the current Evidence Code. While eliminating the “necessity”
¶419exception, the General Assembly modeled the current version of
¶420Rule 807 — which took effect on January 1, 2013, and applies to all
¶421trials conducted after that date, including the trial in this case — on
¶422Federal Rule of Evidence 807. See State v. Holmes, 304 Ga. 524, 529
¶423(2) (a) (820 SE2d 26) (2018).
¶424 As we have noted many times since the current Evidence
¶425 28 Code’s enactment, when Georgia courts consider the meaning of
¶426Evidence Code provisions that the General Assembly borrowed from
¶427the Federal Rules of Evidence, they should be guided by the
¶428“decisions of the federal appeals courts construing and applying the
¶429Federal Rules, especially the decisions of the Eleventh Circuit.”
¶430(Citation and punctuation omitted.) Jacobs v. State, 303 Ga. 245,
¶431249 (2) (811 SE2d 372) (2018). Cases decided under the “necessity”
¶432exception to the hearsay rule in Georgia’s former Evidence Code are
¶433thus not applicable to Rule 807’s interpretation and should not be
¶434relied on by trial courts in determining whether to admit evidence.
¶435See Holmes, 304 Ga. at 530 (2) (a).
¶436 However, despite its citation to Griffin, the trial court’s order
¶437denying Ash’s motion for new trial on this ground relied primarily
¶438on its assessment of “guarantees of trustworthiness” and the other
¶439factors outlined in Rule 807. We also note that in their arguments
¶440before the trial court in the pre-trial hearing on this issue both Ash
¶441and the State discussed the need to establish guaranties of
¶442trustworthiness surrounding Shaw’s statements to Terrell.
¶443 29 The trial court ultimately applied the appropriate evidentiary
¶444standard despite its citation of a case construing the former
¶445Evidence Code. It is therefore unnecessary for us to vacate the trial
¶446court’s denial of Ash’s motion for new trial on the sole basis that the
¶447trial court considered a decision under the former Evidence Code
¶448instead of relying on decisions construing Rule 807 under the
¶449current Evidence Code. See Reyes v. State, 309 Ga. 660, 667 (2) (a)
¶450(847 SE2d 194) (2020) (holding that even though the trial court cited
¶451cases construing the former Evidence Code, because the trial court
¶452applied the residual factors, in substance, remand was
¶453unnecessary). Compare Holmes, 304 Ga. at 530 (2) (a) (where trial
¶454court did not apply the proper evidentiary standard in analyzing
¶455evidence’s admissibility under Rule 807, this Court vacated the
¶456order, remanded the case, and directed the trial court to apply the
¶457correct standard).
¶458 (b) We now consider whether the trial court abused its
¶459discretion by admitting the statements at issue under Rule 807. See
¶460Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019) (admission
¶461 30 of evidence under Rule 807 reviewed for abuse of discretion). The
¶462exception states in relevant part:
¶463 A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that: (1) The statement is offered as evidence of a material fact; (2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence[.]
¶464OCGA § 24-8-807.
¶465 Ash does not dispute that the State offered the statements at
¶466issue as evidence of material facts, that the statements were more
¶467probative on the points for which the State offered them than any
¶468other evidence the State could have reasonably procured, or that the
¶469statements’ admission would best serve the general purpose of the
¶470evidence rules and the interests of justice. Instead, Ash contends
¶471only that the statements did not have sufficient “guarantees of
¶472trustworthiness” to be properly admitted under the residual hearsay
¶473exception. We disagree.
¶474 31 We first note that the General Assembly designed the residual
¶475hearsay exception embodied in Rule 807 “‘to be used very rarely, and
¶476only in exceptional circumstances.’” Jacobs, 303 Ga. at 249 (2)
¶477(quoting Rivers v. United States, 777 F3d 1306, 1312 (II) (11th Cir.
¶4782015)). The rule applies “only when certain exceptional guarantees
¶479of trustworthiness exist and when high degrees of probativeness and
¶480necessity are present.” Jacobs, 303 Ga. at 249 (2). Such guarantees
¶481of trustworthiness
¶482 must be equivalent to cross-examined former testimony, statements under a belief of impending death, statements against interest, and statements of personal or family history. These categories of hearsay have attributes of trustworthiness not possessed by the general run of hearsay statements that tip the balance in favor of introducing the information if the declarant is unavailable to testify. And they are all considered sufficiently trustworthy not because of the credibility of the witness reporting them in court, but because of the circumstances under which they were originally made.
¶483(Citations and punctuation omitted.) Id. However,
¶484 [t]his Court is particularly hesitant to overturn a trial court’s admissibility ruling under the residual hearsay exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.
¶485 32 (Citation and punctuation omitted.) Holmes, 304 Ga. at 529 (2) (a).
¶486 Here, the trial court determined that several factors weighed
¶487in favor of finding that Shaw’s statements to Terrell were
¶488trustworthy. The trial court noted that Terrell testified in a pre-trial
¶489hearing regarding the residual hearsay testimony.19 Terrell testified
¶490that Shaw was his lifelong friend “ever since elementary school.”
¶491Terrell and Shaw met in the third grade, and they were friends until
¶492Shaw’s death. The pair talked to each other daily and shared the
¶493personal details of their lives with each other. Terrell described
¶494Shaw as his “best friend” that he “loved and trusted.” Terrell and
¶495Shaw continued this close relationship until Shaw’s death.
¶496 In light of the evidence of their long and close friendship and
¶497the circumstances in which Shaw made the statements at issue to
¶498Terrell, we cannot say that the trial court abused its discretion by
¶499admitting the statements under Rule 807. See, e.g., Rawls v. State,
¶500 19 The trial court initially determined that Shaw’s statements would not be admitted pursuant to Rule 807. Before the start of Ash’s second trial, the trial court reversed that decision following a hearing on a pre-trial motion for reconsideration filed by the State. 33 310 Ga. 209, 215 (3) (i) (850 SE2d 90) (2020) (noting that the “close
¶501relationship” between victim and witness gave statements made to
¶502witness by victim “sufficient guarantees of trustworthiness to be
¶503admissible under Rule 807”); Jacobs, 303 Ga. at 250-251 (2) (no
¶504abuse of discretion where statements made to close friends
¶505concerned history of conflict between victim and perpetrator).
¶506 Moreover, although Terrell, like many of the witnesses who
¶507testified at trial, had his credibility and motives for testifying
¶508questioned by the defense, his credibility was not at issue in
¶509determining whether to admit Shaw’s statements to him under Rule
¶510807. As we discussed in Jacobs, the trial court must make its
¶511determination of the trustworthiness of the hearsay statements at
¶512issue “not because of the credibility of the witness reporting them in
¶513court, but because of the circumstances under which they were
¶514originally made.” (Citations and punctuation omitted.) 303 Ga. at
¶515249 (2). Because the record is clear that this was the trial court’s
¶516focus in reaching its ruling with regard to the admission of the
¶517statements and because the trial court’s decision to admit this
¶518 34 evidence did not otherwise constitute an abuse of discretion, this
¶519enumeration of error fails. See Reyes, 309 Ga. at 673-674 (3) (b).
¶520 4. Ash also claims that his right to due process was violated
¶521when the State “improperly destroyed evidence it knew to be
¶522exculpatory.” Specifically, Ash claims that during his interview with
¶523the police on April 5, 2013, he showed the lead detective a picture on
¶524his cell phone showing that he was at the Brazilian Club on the night
¶525of Shaw’s shooting. Ash further claims that after confiscating the
¶526cell phone incident to his arrest, the State, in bad faith, destroyed
¶527the phone, even though it contained exculpatory evidence, namely
¶528the photograph Ash showed the detective. The trial court
¶529determined that Ash had not demonstrated a due process violation,
¶530and we agree.
¶531 In evaluating whether a defendant’s constitutional right to due
¶532process was violated when the State failed to preserve evidence that
¶533could be exculpatory,
¶534 a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. To meet the standard of
¶535 35 constitutional materiality, the evidence must possess an exculpatory value that was apparent before it was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
¶536(Citations and punctuation omitted.) Goins v. State, 310 Ga. 199,
¶537202 (3) (850 SE2d 68) (2020); see also State v. Mussman, 289 Ga.
¶538586, 590 (2) (713 SE2d 822) (2011) (applying this test where the
¶539State failed to preserve evidence that “could have been exculpatory,
¶540but where it is not known that the evidence would have been
¶541exculpatory” (emphasis omitted)). This test is ordinarily applied
¶542when State officials dispose of potential evidence that was
¶543previously in the State’s actual or constructive possession. See, e.g.,
¶544Arizona v. Youngblood, 488 U. S. 51, 52-53 (109 SCt 333, 102 LE2d
¶545281) (1988) (sexual assault kit not fully tested and victim’s clothing
¶546not refrigerated); California v. Trombetta, 467 U. S. 479, 482 (104
¶547SCt 2528, 81 LE2d 413) (1984) (suspected drunk drivers’ breath
¶548samples not preserved by arresting officers); Hill v. State, 308 Ga.
¶549638, 648-649 (842 SE2d 853) (2020) (correctional officer’s video of
¶550post-crime search lost); Clay v. State, 290 Ga. 822, 839-843 (5) (725
¶551 36 SE2d 260) (2012) (defendant’s blood samples destroyed). Cf. Krause
¶552v. State, 286 Ga. 745, 752 (691 SE2d 211) (2010) (applying the test
¶553to a baseball bat seen in a crime scene photograph but not taken into
¶554evidence).
¶555 In his motion for new trial, Ash claimed that the State violated
¶556his due process rights by improperly and in bad faith destroying his
¶557cell phone, which the State allegedly knew contained exculpatory
¶558evidence before its destruction. The record shows that during the
¶559investigation of Shaw’s murder, the lead detective interviewed Ash
¶560on April 5, 2013. Among other stories about the night of Shaw’s
¶561shooting, Ash told the detective that he had an alibi in the form of a
¶562photograph taken at the Brazilian Club that night. Ash then showed
¶563the detective a photograph he “had received” which he said was
¶564taken at the club that night. In response, the detective challenged
¶565Ash to provide information about his whereabouts between 2:00 a.m.
¶566and 7:00 a.m. on February 21.
¶567 After his interview with the detective, Ash was arrested.
¶568Incident to the arrest, the detective collected Ash’s cell phone.
¶569 37 Pursuant to Atlanta Police Department procedures, the detective
¶570generated a bar code for the phone on April 5, but he did not turn
¶571the phone over to the department’s property control unit until July
¶57222, 2013, in apparent violation of police department guidelines.
¶573During that time, the detective asked Ash’s cell phone service
¶574provider to unlock his phone. A representative of the service
¶575provider indicated that it would only do so after being presented
¶576with a valid search warrant. The detective later obtained a search
¶577warrant for the phone but never filed a return. 20
¶578 In addition, when the detective later turned the phone over to
¶579the department’s property control unit, he designated the phone as
¶580“property” rather than “evidence.” Under police department
¶581guidelines, “property” was to be retained by the police department
¶582for at least 90 days before being destroyed, based on the date listed
¶583 20 An employee of the Clerk of Fulton County Superior Court testified that, “[n]ormally, when the affidavits and applications for a search warrant are filed with our court, they are filed with a return attached. And this record has no return attached.” The record contains a form Fulton County Superior Court “return,” which is a document that shows, among other information, whether and where the warrant was executed, with whom or where a copy of the warrant was left, and an inventory of any items seized in any search that was conducted pursuant to the warrant. 38 with the bar code, and police personnel were to, “if possible,” contact
¶584the property owner and notify him that the property could be picked
¶585up at the property control unit. In early August 2013, the police
¶586department sought court permission pursuant to OCGA § 17-5-54
¶587(e)21 to destroy Ash’s cell phone, and a court order granting such
¶588permission was issued on August 20. Ash’s cell phone was destroyed
¶589sometime in early October 2013.22 A notation on the document
¶590showing the chain of custody of the phone indicates that the phone
¶591was destroyed before the police notified Ash that the phone could be
¶592picked up.
¶593 21 OCGA § 17-5-54 (e) provides, in pertinent part, as follows: For any unclaimed personal property that is not a firearm, the sheriff, chief of police, or other executive officer of a law enforcement agency shall make application to the superior court for an order to retain, sell, or discard such property. In the application the officer shall state each item of personal property to be retained, sold, or discarded. . . . Upon the superior court's granting an order which authorizes that the property be discarded, the law enforcement agency shall dispose of the property as other salvage or nonserviceable equipment. . . . 22 Ash’s counsel noted in the hearing on the motion for new trial that the
¶594police department’s procedures required the department to make efforts to notify Ash before destroying the phone but that he was never notified. Ash concedes that, before its destruction, he never asked that the phone be returned to him or that he be allowed to examine it. 39 Three witnesses who were in the chain of custody of the phone
¶595testified that they had not examined the contents of the phone and
¶596did not know whether the phone contained exculpatory evidence.
¶597The detective did not testify at the hearing on the motion for new
¶598trial.
¶599 At the hearing, Ash presented the testimony of an expert who
¶600stated that it would have been possible to extract “metadata”
¶601relating to the photograph, including GPS coordinates, the date and
¶602time the photo was captured, and the date and time the photo was
¶603digitized, from Ash’s phone. The expert testified that access to this
¶604data would “greatly” improve the ability to determine the precise
¶605location of Ash’s cell phone at various times. Ash’s mother also
¶606testified at the hearing that she picked up some of Ash’s personal
¶607property from the Fulton County Jail on May 23, 2016, and that she
¶608would have picked up his cell phone from the jail had she been asked
¶609to do so.
¶610 In its order denying Ash’s motion for new trial, the trial court
¶611rejected Ash’s claim, finding in part that, “[n]o testimony given by
¶612 40 any witness over the two days of hearings on the amended motion
¶613for new trial demonstrated bad faith by anyone.” The trial court also
¶614noted that the photograph had been taken by someone else and was
¶615consistent with the State’s theory of Ash’s whereabouts the night of
¶616the shooting, including his presence at the Brazilian Club where Ash
¶617claimed the photo was taken. The trial court thus determined that
¶618the photograph was “not exculpatory, but rather inculpatory.”
¶619 To begin with, we agree with the trial court that Ash has not
¶620shown that the photograph’s exculpatory value, if any, was apparent
¶621before it was destroyed. See Ballard v. State, 285 Ga. 15, 16 (2) (673
¶622SE2d 213) (2009). That a piece of evidence may be “potentially
¶623useful” in a defendant’s attempt at exoneration is insufficient to
¶624sustain a claim that the defendant has suffered an abridgment of
¶625due process due to the evidence’s destruction or loss. Krause, 286 Ga.
¶626at 752 (8). The key is the evidence’s “apparent exculpatory value”
¶627before its destruction or loss, and this Court has defined “apparent”
¶628in this context as “readily seen; visible; readily understood or
¶629perceived; evident; obvious.” State v. Mitzell, 288 Ga. 474, 476 (2)
¶630 41 (705 SE2d 154) (2011).
¶631 Although Ash argues that the exculpatory value of the picture
¶632he showed the detective was readily apparent and that the
¶633detective’s actions in seeking to unlock the phone and obtain a
¶634search warrant for it demonstrate as much, we are not persuaded
¶635that Ash has demonstrated that this evidence satisfies the
¶636exculpatory prong of the materiality test. Based on the record before
¶637this Court, we cannot conclude that the cell phone’s exculpatory
¶638value was obvious or evident to the detective or any other police
¶639personnel who handled the phone before its destruction. See State v.
¶640Miller, 287 Ga. 748, 755 (699 SE2d 316) (2010) (evidence on seized
¶641cell phone was not constitutionally material where “it was [not]
¶642apparent to police or anyone else involved in the seizure, custody, or
¶643disposition of the cell phone that it could possibly aid [the defendant]
¶644in the defense of any criminal charges”).
¶645 To the contrary, the evidence presented at the hearing on the
¶646motion for new trial suggests that the detective never believed the
¶647photograph to be exculpatory and that other police personnel never
¶648 42 examined the phone to determine whether it contained exculpatory
¶649evidence. Consequently, the trial court did not err in determining
¶650that the exculpatory value of the evidence was not apparent. See
¶651Hill, 308 Ga. at 649 (3) (holding that, even if an unpreserved video
¶652would have shown what the appellant claims it would have shown,
¶653it was not material because its exculpatory value was not apparent
¶654before it was lost); Clay, 290 Ga. at 842 (5) (c) (rejecting claim of due
¶655process violation based on destruction of evidence and noting that
¶656appellant “overstate[d] the potential exculpatory value of the
¶657destroyed evidence”).
¶658 We also agree with the trial court’s determination that the
¶659police did not act in bad faith. As the United States Supreme Court
¶660discussed in Youngblood,
¶661 requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.
¶662488 U. S. at 58. Here, as the trial court found, there was no evidence
¶663 43 that any member of the police department who handled Ash’s cell
¶664phone after it was confiscated believed there was exculpatory
¶665evidence on the phone. Only the detective was aware that Ash even
¶666claimed to have potentially exculpatory evidence on the phone.
¶667 Ash makes much of the evidence that the detective and other
¶668members of the police department appear to have violated a number
¶669of Atlanta Police Department policies in the handling and
¶670disposition of the phone, particularly the detective’s lengthy delay
¶671in turning the phone over to the property control unit, his
¶672“mislabeling” of the phone as “property” rather than “evidence,” and
¶673the destruction of the phone before notifying Ash that it could be
¶674picked up. However,
¶675 [e]ven if we were to assume that the State’s handling of the [phone] indicated careless, shoddy and unprofessional investigatory procedures, it did not indicate that the police in bad faith attempted to deny [Ash] access to evidence that they knew would be exculpatory.
¶676(Citation omitted.) Hill, 308 Ga. at 649 (3). Ash presented no
¶677evidence that the detective’s actions or the police department’s
¶678eventual destruction of the cell phone were motivated by a conscious
¶679 44 desire to deny Ash the use of the photograph or other evidence
¶680connected with the phone, including metadata associated with the
¶681photograph, or that anyone in the chain of custody was even aware
¶682that the phone contained allegedly exculpatory evidence. Instead,
¶683the police department’s actions are best characterized “as an
¶684unfortunate series of mishandlings, mistakes, and negligence.”
¶685Miller, 287 Ga. at 755. Such actions cannot support a claim that
¶686Ash’s right to due process was violated, and this claim fails.
¶687 5. Ash next argues that the trial court plainly erred by failing
¶688to charge the jury on the “full defendant’s confession corroboration”
¶689instruction and by failing to instruct the jury that the testimony of
¶690an accomplice must be corroborated. We reject both contentions.
¶691 (a) Ash first contends that the trial court erred in the
¶692instruction on confession corroboration when it omitted one sentence
¶693from the current pattern instruction. Because Ash’s trial counsel did
¶694not request the jury instruction on confession corroboration and did
¶695not object to the jury charge as given by the trial court, we review
¶696this omission only for plain error. See OCGA § 17-8-58 (b) (“Failure
¶697 45 to object in accordance with subsection (a) of this Code section shall
¶698preclude appellate review of such portion of the jury charge, unless
¶699such portion of the jury charge constitutes plain error which affects
¶700substantial rights of the parties. Such plain error may be considered
¶701on appeal even if it was not brought to the court’s attention as
¶702provided in subsection (a) of this Code section.”).
¶703 This Court has established the following test for plain error:
¶704 First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
¶705(Citations and punctuation omitted.) Simmons v. State, 299 Ga. 370,
¶706373 (2) (788 SE2d 494) (2016). This Court does not have to analyze
¶707all elements of the plain-error test where an appellant fails to
¶708 46 establish one of them. See State v. Herrera-Bustamante, 304 Ga.
¶709459, 464 (2) (b) (818 SE2d 552) (2018). As we have noted, satisfying
¶710all four prongs of this test “is difficult, as it should be.” (Citation
¶711omitted.) Clarke v. State, 308 Ga. 630, 637 (5) (842 SE2d 863) (2020).
¶712 In this case, the trial court instructed the jury to
¶713 consider with great care and caution the evidence of any out-of-court statement allegedly made by the defendant offered by the State. The jury may believe any such statement in whole or in part, believing that which you will find to be true and rejecting that which you find to be untrue. You alone have the duty to apply the general rules for testing the believability of witnesses and to decide what weight should be given to all or any part of such evidence.
¶714The trial court omitted the following statements from the pattern
¶715jury instruction:
¶716 A defendant’s out-of-court statement that is not supported by any other evidence is not sufficient to justify a conviction, even if you believe that unsupported statement. However, proof by other evidence beyond a reasonable doubt that the crime alleged has been committed may constitute supporting evidence of a defendant’s statement, if any, should you so find. The law does not fix the amount of supporting evidence necessary. You must determine whether or not other evidence sufficiently supports a defendant’s statement so as to justify a conviction. If you find that there was a statement
¶717 47 made by the defendant that was supported by other evidence, the degree of proof necessary to convict is that you be satisfied of the guilt of the defendant beyond any reasonable doubt.
¶718See Georgia Suggested Pattern Jury Instructions, Vol. II, § 1.32.70
¶719(Jan. 2016); see also OCGA § 24-8-823 (“All admissions shall be
¶720scanned with care, and confessions of guilt shall be received with
¶721great caution. A confession alone, uncorroborated by any other
¶722evidence, shall not justify a conviction.”). 23 Ash argues that the
¶723omission of the first sentence of this portion of the pattern jury
¶724instruction constituted plain error.
¶725 However, despite this omission from the pattern instruction,
¶726we cannot say that the trial court’s charge constituted a legal error
¶727that was “clear or obvious, rather than subject to reasonable
¶728dispute.” Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366)
¶729(2012). We have previously held that there was no plain error where
¶730the trial court failed to give the full text of a different pattern
¶731instruction on consideration of the voluntariness of the defendant’s
¶732 23 The exact text of former OCGA § 24-3-53 was carried forward into the current Evidence Code and codified as OCGA § 24-8-823. 48 statements in its charge to the jury where, as here, the charge, as
¶733given, “instructed the jury to apply the general rules for testing the
¶734believability of witnesses and for deciding what weight, if any, to
¶735give to all or any part of a statement.” Martin v. State, 306 Ga. 538,
¶736544 (4) (832 SE2d 402) (2019).
¶737 And although the trial court’s failure to charge the jury
¶738regarding the need to corroborate a defendant’s out-of-court
¶739statement has been raised as plain error in prior appeals before this
¶740Court, it does not appear that we have squarely addressed whether
¶741the failure to instruct the jury that an uncorroborated statement is
¶742insufficient to warrant a conviction is clearly and obviously
¶743erroneous. See, e.g., Hood v. State, __ Ga. __ (860 SE2d 432, 442 (2))
¶744(2021) (pretermitting whether the failure to give the instruction
¶745constituted clear and obvious error and determining that the
¶746outcome was not likely affected by the omission of the instruction);
¶747Horton v. State, 310 Ga. 310, 322 (3) (b) (849 SE2d 382) (2020)
¶748(same); Clarke, 308 Ga. at 637 (5) (same); English v. State, 300 Ga.
¶749471, 473-475 (2) (796 SE2d 258) (2017) (same); Rashid v. State, 292
¶750 49 Ga. 414, 422 (7) (737 SE2d 692) (2013) (same).24 Additionally, the
¶751Court of Appeals has held that, absent a timely request for a similar
¶752form of this instruction under the identical language of former
¶753OCGA § 24-3-53, there is no error so long as there was evidence
¶754presented at trial corroborating the defendant’s statement. See
¶755Herrington v. State, 243 Ga. App. 265, 266-267 (3) (533 SE2d 133)
¶756(2000).25
¶757 24 Although it did not appear to explicitly consider the issue under the plain-error framework, the Court of Appeals reached a similar conclusion in Armstrong v. State, 325 Ga. App. 33, 36-37 (2) (752 SE2d 120) (2013), and Farley v. State, 314 Ga. App. 660, 666-667 (5) (725 SE2d 794) (2012), when it held in each case that there was no reversible error in failing to sua sponte instruct the jury regarding corroboration of a confession where the defendant did not request the instruction and his statement was corroborated by other evidence. 25 We recognize that this holding is in tension with our current approach
¶758to assessing whether the trial court erred by not giving certain instructions to the jury based on the text of statutes requiring corroboration. Tellingly, Herrington cites Fleming v. State, 269 Ga. 245, 247 (2) (497 SE2d 211) (1998), in support of the proposition that no corroboration instruction need be given where there is sufficient corroborating evidence. Fleming dealt with whether the trial court was required to give an accomplice-corroboration instruction requested by the defendant. See id. at 247 (2); former OCGA § 24-4-8. We held in Fleming that no instruction was required because the State presented evidence corroborating the alleged accomplice’s testimony. See id. However, in Hamm v. State, 294 Ga. 791, 796 (2) (756 SE2d 507) (2014), we overruled Fleming and other decisions from this Court and the Court of Appeals applying that rule, reasoning instead that the failure to give the accomplice-corroboration instruction is error when there is at least slight evidence that a
¶759 50 The trial court did not commit a clear and obvious error here
¶760because “[a]n error is plain if it is clear or obvious under current law.
¶761An error cannot be plain where there is no controlling authority on
¶762point[.]” Wilson v. State, 291 Ga. 458, 460 (729 SE2d 364) (2012)
¶763(holding that it was not plain error to fail to give jury instruction
¶764even where appellant’s argument establishing error “may be
¶765meritorious”). Because Ash has pointed to no precedent holding that
¶766the omission of this sentence from the pattern instruction
¶767constitutes error under these circumstances, and because existing
¶768legal authority stands for the contrary position, whether the trial
¶769court should have instructed the jury on the full text of the pattern
¶770witness was an accomplice. We have since applied this rule in the plain-error context, holding that it is clear and obvious error for a trial court to fail to give the accomplice-corroboration instruction sua sponte when there is evidence that a witness was an accomplice. See, e.g., Stanbury v. State, 299 Ga. 125, 129-130 (2) (786 SE2d 672) (2016). Herrington thus appears to deviate from this Court’s more recent decisions emphasizing the need for a jury instruction on corroboration where a statutory provision indicates that corroboration is required and there is slight evidence to support the instruction. However, even if Herrington is no longer good law — a question we need not definitively resolve today — for purposes of this case, it is sufficient that it has not been overruled. Herrington shows that, under existing precedent, the trial court did not clearly and obviously err in failing to instruct the jury that a defendant’s out-of-court statement that is not supported by any other evidence is not sufficient to justify a conviction. 51 confession-corroboration instruction must be considered “subject to
¶771reasonable dispute and thus cannot constitute plain error.” (Citation
¶772and punctuation omitted.) Id. See also Walter v. State, 304 Ga. 760,
¶773767 (3) (b) (822 SE2d 266) (2018) (noting that appellant had “cite[d]
¶774no precedent” requiring the instruction at issue).
¶775 (b) Ash also claims that the trial court plainly erred by failing
¶776to charge the jury on the need for corroboration of accomplice
¶777testimony, as a jury could have found that Terrell and Minor were
¶778accomplices to Shaw’s murder. We disagree.
¶779 The trial court instructed the jury on this issue as follows:
¶780 The testimony of a single witness, if believed, is sufficient to establish a fact. Generally, there is no legal requirement of a corroboration of a witness, provided you find the evidence to be sufficient.
¶781Ash did not request an accomplice-corroboration charge, and the
¶782trial court did not instruct the jury that there must be independent
¶783corroboration of an accomplice’s testimony before it can be
¶784considered. After the trial court concluded the jury charges, Ash’s
¶785counsel stated that she had no objections to the charges as given. We
¶786 52 thus review this claim only for plain error. See OCGA § 17-8-58 (b).
¶787 OCGA § 24-14-8 provides, in relevant part, that “[t]he
¶788testimony of a single witness is generally sufficient to establish a
¶789fact. However, in . . . felony cases were the only witness is an
¶790accomplice, the testimony of a single witness shall not be sufficient.”
¶791Under this rule, the Court has stated that
¶792 where an accomplice testifies at trial, a jury may not rely solely on the testimony to find any fact necessary to sustain the defendant’s felony conviction. Instead, the existence of any such fact must also be supported by either the testimony of an additional witness or by other, independent evidence that corroborates the accomplice’s testimony.
¶793State v. Johnson, 305 Ga. 237, 240 (824 SE2d 317) (2019).
¶794 In considering whether a witness is an accomplice, we look to the definition of party to a crime found in OCGA § 16-2-20. Under that definition, there must be some evidence showing that the defendant shared a common criminal intent to commit the crimes in question with the actual perpetrators. Moreover, evidence of an individual’s actions and knowledge after the commission of the crimes is insufficient to satisfy the standard of OCGA § 16-2-20. At best, it would show that the individual was an accessory after the fact, not a party to the crimes. At common law and under modern practice, an accessory after the fact is not considered an accomplice to the underlying crime itself, but is guilty of a separate,
¶795 53 substantive offense in the nature of obstruction of justice.
¶796(Citation, punctuation, and emphasis omitted.) Horton, 310 Ga. at
¶797323 (3) (c).
¶798 Here, based on the standard outlined above, there was no
¶799evidence presented at trial that obviously called for the giving of an
¶800accomplice-corroboration charge. Although Ash notes that both
¶801Terrell and Minor believed Shaw should have taken responsibility
¶802for Jonathan Ash’s drug charges, Ash has pointed to no evidence
¶803that Minor or Terrell shared Ash’s intent to murder Shaw or that
¶804they aided or abetted the killing in any way. Ash also notes that
¶805Cook’s testimony established that there was someone with Ash at
¶806Shaw’s apartment complex around the time Shaw was killed.
¶807However, there was no evidence presented at trial that this person
¶808was either Terrell or Minor. By contrast, the evidence indicates only
¶809that Terrell and Minor heard about Shaw’s killing later. Moreover,
¶810although Terrell was with Ash on the night of the shooting and
¶811traveled to Florida with him the following day, neither the evidence
¶812presented at trial nor the State’s closing argument pointed to Terrell
¶813 54 as an accomplice. Rather, the State suggested that Ash contacted
¶814Terrell and asked to meet him merely as a way of establishing an
¶815alibi the night of the shooting.
¶816 Thus, while there might have been a slight evidentiary basis
¶817for Ash to have requested a charge on accomplice corroboration, Ash
¶818has failed to show that the trial court made a clear and obvious error
¶819by not sua sponte instructing the jury on accomplice corroboration.
¶820See Horton, 310 Ga. at 325 (3). This enumeration of error fails.
¶821 6. Finally, Ash argues that the cumulative effect of the errors
¶822he has enumerated prejudiced him and that he is entitled to a new
¶823trial. To establish cumulative error, Ash must show that “at least
¶824two errors were committed in the course of the trial; [and]
¶825considered together along with the entire record, the multiple errors
¶826so infected the jury’s deliberation that they denied [Ash] a
¶827fundamentally fair trial.” State v. Lane, 308 Ga. 10, 21 (4) (838 SE2d
¶828808) (2020). However, when reviewing a claim of cumulative
¶829prejudice, “we evaluate only the effects of matters determined to be
¶830error rather than the cumulative effect of non-errors.” Scott v. State,
¶831 55 309 Ga. 764, 771 (3) (d) (848 SE2d 448) (2020).
¶832 This Court has assumed for purposes of analysis that the trial
¶833court made only a single error in this case: the trial court’s
¶834admission of Ash’s 2009 convictions and testimony about the
¶835incident that led to those convictions. However, because we
¶836determined that any error in the admission of that evidence was
¶837harmless, and because we have not identified any other error on the
¶838part of the trial court, we have no basis for evaluating cumulative
¶839effect. See Flood v. State, ___ Ga. ___ (860 SE2d 731, 739 (2) (d))
¶840(2021). This argument fails.
¶841 Judgment affirmed. All the Justices concur.
¶842 56