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In the Supreme Court of Georgia

Decided: February 17, 2026

S25A1429. MURPHY v. THE STATE.

LAND, Justice.

Dachavous Murphy appeals his convictions for felony murder

and other crimes stemming from the shooting death of Ashley Brown

at a nightclub in Augusta. 1 On appeal, Murphy argues that the trial

1 The crimes took place on September 15, 2011. On December 13, 2011,

a grand jury indicted Murphy for felony murder (Count 1), possession of a
firearm during the commission of a crime (Count 2), criminal damage to
property in the first degree (Count 3), and aggravated assault (Count 4). After
trial, on August 7, 2014, a jury returned a verdict of guilty on all four counts of
the indictment. Murphy was sentenced to life in prison without parole for
Count 1; five years in prison for Count 2, to be served consecutively to Count
1; ten years in prison for Count 3, to be served consecutively to Count 2; and
twenty years in prison for Count 4, to be served consecutively to Count 1. The
charges against Murphy’s codefendant, Robert Wright, were dismissed based
on Wright’s guilty plea to a reindictment on lesser charges.
Murphy filed a timely motion for new trial on August 13, 2014, which
was amended twice through new counsel on March 4, 2022 and March 10, 2022.
After a series of hearings on March 16, 2022, May 17, 2022, and February 20,
2023, the trial court denied the motion as amended on October 26, 2023, and
Murphy filed a timely notice of appeal. The case was docketed to this Court’s
August 2025 term and submitted for a decision on the briefs.
We note that there was over a 9 year delay between the time Murphy’s
court abused its discretion by excluding certain evidence as

inadmissible hearsay, that the State violated Brady 2 by failing to

disclose evidence favorable to Murphy prior to trial, that the trial

court abused its discretion by denying Murphy’s request for a

continuance, and that the trial court erred in making certain

charges to the jury. Murphy also argues that Count 4 of the

indictment fails to comply with due process and that trial counsel

rendered ineffective assistance for failing to call two witnesses

whose testimony would have contradicted the testimony of the

State’s eyewitnesses. For the reasons below, we affirm Murphy’s

convictions.

1. The evidence presented at trial showed as follows. Murphy

initial motion for new trial was filed and the time that the trial court ultimately
ruled on Murphy’s motion as amended. While this delay may have at least in
part been the result of the multiple substitutions of counsel that took place
prior to the trial court’s ruling on Murphy’s amended motion as well as delays
resulting from the preparation of the trial transcript, we remind the
participants in this case and others involved in the criminal justice system that
“it is the duty of all those involved in the criminal justice system, including
trial courts and prosecutors as well as defense counsel and defendants, to
ensure that the appropriate post-conviction motions are filed, litigated, and
decided without unnecessary delay.” Owens v. State, 303 Ga. 254, 258 (2018).
2 Brady v. Maryland, 373 US 83 (1963).

2
and his codefendant, Robert Wright, went to Club 5150 in Augusta

in the evening hours on September 14, 2011. Several members of the

Daggett family also went to Club 5150 that same evening. In the

early morning hours of September 15, a fight broke out on the dance

floor between the Daggett family and another group of people from

“Harrisburg,” which included Murphy. Security broke up the fight

and club staff forced all patrons to leave the club. Brown, who was

at the club with friends celebrating a birthday, was among the

patrons forced to leave the club.

A security guard for the club witnessed Murphy leave the club

and walk to a dark-colored vehicle, where Murphy displayed a

firearm. Murphy entered the car, which drove to the front of the

club. Eyewitnesses testified that Murphy, who was sitting in the

passenger’s seat, then fired several shots into the crowd gathered in

the foyer of the club. One of those shots struck Brown in the head;

she died from her injuries.

On September 20, 2011, investigators interviewed Murphy.

Although investigators did not place Murphy under arrest at that

3
time, they administered him Miranda 3 rights, and Murphy agreed

to speak to investigators. During the interview, Murphy admitted

that he went to Club 5150 with Wright on the night of the shooting.

He claimed that they left the club together, that no one else drove

with them in the vehicle, and that neither he nor Wright fired shots

that night. Murphy also claimed at that time that he did not have

any “beef or conflict” with “any of the people on the other side of the

fight.”

Murphy was later identified by two eyewitnesses, Stanley

Curry and Devin Basket, as the shooter. On September 23,

investigators arrested Murphy and reinterviewed him.

Investigators re-administered Miranda rights to Murphy, and

Murphy agreed to waive those rights and speak to investigators.

Murphy again stated that he and Wright were the only people in

Wright’s car that night and that neither of them fired shots.

In December 2011, the lead investigator, Chris Langford,

began receiving letters from Murphy. In January 2012, Langford

3 Miranda v. Arizona, 384 US 436 (1966).

4
again administered Miranda rights to Murphy; Murphy waived

them and agreed to speak to the investigator. This time, Murphy

stated that he left Club 5150 with Roosevelt Ellison, not Wright, in

Ellison’s black Camry or Corolla, and that Ellison “reach[ed] over

with his right arm and [shot] behind him out the back passenger

window.” Murphy also acknowledged that the fight at Club 5150

stemmed from a prior dispute.

At trial, Murphy called Wright, Kevin Brown (“Kevin”), and

Davario Glover as defense witnesses. Wright testified that Murphy

left Club 5150 with Ellison, not Wright, in Ellison’s black Toyota

Camry. 4 Wright left Club 5150 separately and drove to Ellison’s

house, where he testified that he saw Ellison with a gun in his

waistband. Wright also testified that he saw Ellison removing shell

casings from the back seat of his Camry.

Kevin testified that he was at Ellison’s house after the shooting

4 In his first two interviews with law enforcement, however, Wright
stated that he left the club in his car with Murphy and that there was “no way
that [Murphy] was the shooter because [Murphy] left with [him]” and Wright
couldn’t “be around guns because [he was] on probation at the time.” Wright
testified that he lied in these first two statements.
5
and that he saw Ellison with a 9mm gun. Glover, Murphy’s brother,

testified that he was at Ellison’s house after the shooting, that he

saw Ellison with a 9mm gun, and that he saw Ellison “washing his

hands with gas[oline].”

2. Murphy argues that the trial court abused its discretion by

excluding hearsay testimony from Glover, Kevin, and Wright about

Ellison’s statements and Ellison’s phone call with Wright in which

he admitted to shooting a gun of the caliber that killed Brown the

night of the incident giving rise to this case. Specifically, Murphy

argues that this evidence should have been admitted under OCGA §

24-8-804(b)(3) (“Rule 804(b)(3)”) as statements against interest and

under the residual hearsay exception, OCGA § 24-8-807 (“Rule

807”). For the reasons that follow, we conclude that the trial court

did not abuse its discretion in excluding this evidence, and we

accordingly reject Murphy’s contentions. See Atkins v. State, 310 Ga.

246, 250 (2020) (“[A] trial court’s decision whether to admit or

exclude evidence will not be disturbed on appeal absent an abuse of

discretion.”).

6
On October 13, 2011, while Wright was in jail, Wright called

Ellison, and Ellison admitted responsibility for shooting a handgun

the night of Brown’s death. This call was recorded. According to

Wright, Ellison claimed that he “let loose,” meaning shot, a 9mm

handgun that night and knew that a handgun of that caliber was

responsible for Brown’s killing. Wright later testified that Ellison

was “very concerned” about the incident, though he was “unsure”

whether his gun had shot the bullets that killed Brown. In the

recording, Ellison admitted to shooting the night Brown was killed,

but he claims that he was not the only person shooting that night

and that Murphy also had a gun.

Langford subsequently interviewed Ellison, and Ellison

admitted that he was at Club 5150 the night of the shooting but

denied firing his gun. Instead, Ellison claimed that his call with

Wright was a “scheme” because he was “friends with them” and that

Murphy and Wright were “supposed to give him money.”

Ellison invoked his Fifth Amendment right against self-

incrimination and did not testify at trial. Murphy sought to admit

7
the recorded phone call between Wright and Ellison in which Ellison

admitted to shooting a gun of the same caliber that killed Brown the

night of the shooting under the hearsay exception for statements

against interest pursuant to Rule 804(b)(3). During pretrial

argument, the trial court ruled that evidence regarding what Ellison

told others, including the jailhouse phone call, was inadmissible

because there were not “sufficient foundational factors to indicate

an indicia of reliability.” In its written order denying Murphy’s

motion for new trial, the trial court stood by its earlier ruling and

explained that Ellison’s hearsay statements claiming responsibility

for shooting a firearm on the night of the crime were not supported

by corroborating circumstances that clearly indicated the

trustworthiness of those statements, a precondition for the

admissibility of those statements under OCGA § 804(b)(3)(B) (“Rule

804(b)(3)(B)”). The trial court’s order also ruled that the statements

were not admissible under Rule 807, the residual hearsay exception,

for the same reason. Consistent with this ruling, the trial court also

excluded similar testimony from Kevin and Glover that they heard

8
Ellison claim responsibility for shooting a firearm that night.

(a) Murphy first argues that Ellison’s statements were

admissible under the hearsay exception for statements against

interest. See OCGA § 24-8-804(b)(3). This argument fails.

Under Rule 804(b)(3), a statement against interest is an out of

court statement made by a person who is unavailable at trial:

(A) Which a reasonable person in the declarant’s position
would have made only if the person believed it to be true
because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a
tendency to invalidate a claim by the declarant against
another or to expose the declarant to civil or criminal
liability; and

(B) Supported by corroborating circumstances that clearly
indicate the trustworthiness of the statement if it is
offered in a criminal case as a statement that tends to
expose the declarant to criminal liability[.]

There is no dispute that Ellison was unavailable to testify at trial

because he asserted his Fifth Amendment privilege against

compelled self-incrimination and that assertion was accepted by the

trial court. Shealey v. State, 308 Ga. 847, 852 (2020).

We agree with the trial court that Ellison’s hearsay statements

9
appear to be against his interest since they are, on their face,

admissions of criminal activity. We accordingly agree with Murphy’s

argument that subsection (A) of Rule 804(b)(3) is satisfied.

Because Ellison’s hearsay statements were offered in a

criminal case and would tend to expose him to criminal liability,

subsection (B) applies to these statements and requires an analysis

of whether those statements were “[s]upported by corroborating

circumstances that clearly indicate the trustworthiness of the

statement[s.]” OCGA § 24-8-804(b)(3)(B). The trial court is the

gatekeeper for this type of evidence and is tasked with making that

determination in the first instance. We are then tasked with

assessing whether the trial court’s decision is supported by any

evidence and deciding whether it abused its discretion when

admitting or excluding such evidence. See State v. Hamilton, 308

Ga. 116, 121 (2020) (“We review a trial court’s evidentiary rulings

for an abuse of discretion.”).

For the reasons discussed below, we conclude that there is

evidence in the record supporting the trial court’s determination

10
that Ellison’s hearsay statements were not supported by

corroborating circumstances that clearly indicated the

trustworthiness of those statements and that the trial court did not

abuse its discretion by excluding those statements.

We have not previously had the opportunity to consider the

trustworthiness requirement of Rule 804(b)(3)(B). Because “OCGA

§ 24-8-804 is the counterpart to Rule 804 of the Federal Rules of

Evidence,” when we consider the meaning of Rule 804(b)(3)(B)’s

trustworthiness requirement, we may “consider the decisions of

federal appellate courts, particularly the decisions of the United

States Supreme Court and the Eleventh Circuit, construing and

applying our rule’s federal counterpart.”5 Bolling, 300 Ga. at 698

(footnote omitted).

5 Cases from the United States Supreme Court and the United States

Court of Appeals for the Eleventh Circuit decided prior to the effective date of
Georgia’s new Evidence Code have precedential value because the “General
Assembly was crystal clear in conveying its intent that Georgia’s new Evidence
Code was primarily enacted to adopt the Federal Rules of Evidence ... ‘as
interpreted’ by the federal appellate courts as of the effective date of the new
Code.” State v. Almanza, 304 Ga. 553, 558 (2018). “While still persuasive
authority, any subsequent federal appellate case law lacks the same
precedential weight as cases before that date.” Id. at 559 n.5.
11
In examining Federal Rule 804(b)(3)(B)’s trustworthiness

requirement, the United States Court of Appeals for the Eleventh

Circuit has determined that “[i]n order for a declaration against

penal interest to be trustworthy evidence, the statement must

actually have been made by the declarant, and it must afford a basis

for believing the truth of the matter asserted.” United States v.

Bagley, 537 F2d 162, 167 (5th Cir. 1976) (emphasis added). 6 In

determining whether a hearsay statement sought to be admitted

under Federal Rule 804(b)(3)(B) is trustworthy, courts may consider

the “totality of evidence in the … case” and the evidence developed

at trial. United States v. Robinson, 635 F2d 363, 364 (5th Cir. 1981).

See also United States v. US Infrastructure, Inc., 576 F3d 1195, 1209

(11th Cir. 2009) (determining that a statement is trustworthy where

“it [is] unlikely, judging from the circumstances, that the statement

was fabricated” and that “the evidence presented at trial supports

6 Decisions of the former United States Court of Appeals for the Fifth

Circuit rendered before the close of business on September 30, 1981, are
binding in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F2d 1206,
1209 (11th Cir. 1981) (en banc).
12
the veracity of the out-of-court statement”); United States v.

Thomas, 571 F2d 285, 290 (5th Cir. 1978) (looking at evidence in the

record that “indicates the trustworthiness of the statement” in

addition to noting that the possibility of fabrication was “slight”).

Murphy argues that Ellison’s statements are sufficiently

trustworthy pursuant to Rule 804(b)(3)(B) because his phone call

with Wright was recorded and because three other people – Kevin,

Glover, and Ted Shelley – would have testified that Ellison also told

them he was shooting that night. In essence, Murphy’s argument is

that this hearsay evidence is trustworthy because several witnesses

claimed they heard Ellison make these statements and because

Ellison’s statements to Wright were evidenced by a recording. In

other words, Murphy argues that the statements should have been

admitted because the evidence that the statements were actually

made by Ellison is trustworthy.

Murphy’s focus on whether Ellison’s hearsay statements were

actually made by him is an incomplete analysis of what the trial

court may consider in determining whether Ellison’s statements are

13
admissible. Here, no one has questioned whether Ellison actually

made out of court statements claiming to be one of the shooters. The

recording of his conversation with Wright confirms that he did in

fact make at least one statement to this effect. That is not the issue

that was decided by the trial court and is not the only inquiry under

Rule 804(b)(3)(B). Rather, because the State would have no way to

cross-examine the non-testifying declarant if these statements were

admitted, Rule 804(b)(3)(B) required the trial court to assess and

decide whether corroborating circumstances clearly demonstrated

the trustworthiness of the content of the hearsay statements before

they were admitted, including whether the hearsay statements were

fabricated. Rule 804(b)(3)(B) entrusts the trial court with the

gatekeeping role for the admission or exclusion of this type of

hearsay. Here, the trial court was presented with conflicting

evidence on the controlling issue of trustworthiness, including an

admission by the out of court declarant that, when he admitted to

shooting, he lied in exchange for the promise of money. Given this

evidence, we cannot say that the trial court abused its discretion

14
when it concluded that the hearsay statements were not

trustworthy, and we reject Murphy’s argument that the statements

should have been admitted simply based on the strength of the

evidence that Ellison actually made them.7

At trial, the State pointed to evidence suggesting that Ellison

fabricated his involvement in the shooting at the direction of Wright

and Murphy and that he did so in return for the promise of money.

Specifically, when interviewed by Langford, Ellison claimed that his

call with Wright was a “scheme” because he was “friends with them”

and that Murphy and Wright were “supposed to give him money.”

Ellison claimed that Wright sent a letter to Santrez Hall “telling

7 We recognize that Murphy also points to other evidence of
corroboration, such as Kevin’s and Glover’s proffered testimony that Ellison
told them he was shooting, Wright’s testimony that Ellison was cleaning shell
casings out of his car, Kevin’s and Glover’s testimony that Ellison had a 9mm
gun, and Glover’s testimony that Ellison was cleaning his hands with gasoline.
While this evidence, if believed by the trial court, may have supported a
different ruling on the admission of Ellison’s hearsay statements, that does not
mean that the trial court was required to accept this evidence and find that the
content of the hearsay was in fact trustworthy. Rather, given the conflict in the
evidence on this point, including evidence that Ellison was not in the car with
Murphy at the time of the shooting, was not one of the shooters, and lied about
his involvement in the shooting in exchange for the promise of money, the trial
court was authorized to exercise its discretion and exclude the hearsay.
15
[Ellison] what [he] was supposed to say, so [he] said it,” and at the

beginning of Wright’s recorded phone call to Ellison, before Ellison

got on the phone, Wright can be heard telling someone named Black

to talk to Hall to learn “what the plan is.” Based on this evidence,

the trial court was authorized to exercise its discretion and find that

Ellison’s statements were not sufficiently supported by

corroborating circumstances clearly indicating that they were

trustworthy.

Additionally, Murphy’s multiple statements to law

enforcement were inconsistent with each other and were

inconsistent with the version of events suggested by Ellison’s

hearsay statements, providing the trial court with further reason to

question the veracity of those statements and conclude that they

were not supported by corroborating circumstances that “clearly

indicate” their trustworthiness. In Murphy’s first two statements to

police, he claims he left the club with Wright and did not mention

Ellison. In his third statement, which occurred after eyewitnesses

identified him as the shooter in the passenger side of a dark-colored

16
car, he changed his story and claimed he left the club with Ellison,

not Wright, and that he did not have a gun. Ellison, however,

claimed that Murphy did have a gun and that Ellison was not the

only person shooting that night. Given this conflicting evidence,

combined with Ellison’s admission that he fabricated the out of court

statements in exchange for the promise of money, we conclude that

the trial court did not abuse its discretion in finding that Ellison’s

statements were not trustworthy and therefore not admissible

under Rule 804(b)(3)(B).8 See United States v. Tipton, 572 F. App’x

8 Further support for our holding that the proper inquiry under Rule

804(b)(3)(B) considers the trustworthiness of the content of the hearsay
statements and not just the strength of the evidence showing that the
statements were actually made is found in the Notes of the Advisory
Committee on Federal Rule 804(b)(3). See Almanza, 304 Ga. at 559 n.6
(“[A]lthough Advisory Committee Notes are not binding precedent and cannot
change the plain meaning of the law or rules, they are highly persuasive
(unlike ordinary legislative history).”). These Notes characterize the
trustworthiness requirement as “a requirement preliminary to admissibility”
and state that “[t]he requirement of corroboration should be construed in such
a manner as to effectuate its purpose of circumventing fabrication.” Similarly,
the Notes of the Advisory Committee with respect to the 2010 Amendment to
Federal Rule 804(b)(3) state: “In assessing whether corroborating
circumstances exist, some courts have focused on the credibility of the witness
who relates the hearsay statement in court. But the credibility of the witness
who relates the statement is not a proper factor for the court to consider in
assessing corroborating circumstances. To base admission or exclusion of a
hearsay statement on the witness’s credibility would usurp the jury’s role of

17
743, 748 (11th Cir. 2014) (affirming a trial court’s decision to exclude

hearsay evidence under Federal Rule 804(b)(3) because the

declarant was “completely unbelievable”); United States v. Berry,

496 F. App’x 938, 942 (11th Cir. 2012) (affirming the trial court’s

exclusion of an out of court declarant’s statements as not clearly

corroborated because he recanted post-arrest statements about

drug ownership in a follow-up interview with police and “allowing

multiple, inconsistent statements by an unavailable witness could

mislead the jury and confuse the issues”).

(b) Murphy also claims that Ellison’s statements should have

been admitted under Rule 807, the residual hearsay exception. We

conclude that, for the same reasons the trial court did not abuse its

discretion in excluding this evidence under Rule 804(b)(3), it did not

abuse its discretion in finding that this evidence did not possess the

“guarantees of trustworthiness” required by Rule 807. See OCGA §

determining the credibility of testifying witnesses.” As shown by this language,
the focus of the Rule’s trustworthiness requirement is not the veracity of the
testifying witness who relays the hearsay in court but the trustworthiness of
the content of the hearsay statements themselves.
18
24-8-807 (requiring statements to possess “equivalent

circumstantial guarantees of trustworthiness” to qualify for

admission); State v. Kenney, 315 Ga. 408, 415 (2023) (“[A] court must

find that hearsay statements have guarantees of trustworthiness

[that are] equivalent to those found in the other statutory exceptions

to hearsay set forth in Rules 803 and 804 before they can be

admitted under the residual exception.” (cleaned up)). Compare

Kennebrew v. State, 317 Ga. 324, 335 (2023) (concluding that trial

court did not abuse its discretion in admitting evidence under Rule

807 where, among other things, there “was no evidence presented

indicating that [the declarant] had any motive to fabricate his

statements”).

3. Murphy argues that the trial court erred in finding that the

State did not violate Brady by failing to provide him with

exculpatory evidence. Specifically, Murphy argues that the State’s

failure to provide him with Langford’s audio-recorded interview

with Shelley, as well as Langford’s supplemental interview notes

from that interview, constituted a Brady violation. Murphy also

19
argues that, because the State violated Brady, the trial court erred

in denying Murphy’s motion for a continuance to investigate

Shelley’s statements. These claims fail.

Prior to trial, Langford interviewed Shelley, who claimed that

Ellison told him that both he and Murphy were shooting at the time

of Brown’s death. Langford recorded his interview with Shelley and

provided a supplemental report on the interview to the State. The

State claimed it did not have the report and did not provide the

report in discovery. Murphy argued that he was unaware that the

State interviewed Shelley or that Shelley had favorable evidence

until the morning of trial.

On June 30, 2014 (more than a month before trial), Murphy

sent the State a witness list that included Shelley’s name. During a

pretrial hearing the morning of trial, Murphy’s counsel told the

court that he wanted to call Langford as a witness because he “found

out … a Ted Shelley was used by the police … to talk to Roosevelt

Ellison.” Murphy called Langford as a witness during this pretrial

hearing, and Langford testified that Shelley contacted him in

20
October 2012 from jail to let Langford know that he had information

about a homicide. Langford testified that he interviewed Shelley in

October 2012, and Shelley stated that Ellison had told him

“[Murphy] and the others had gotten into it,” and “Murphy was

shooting at the time of the incident and advised that [Ellison] was

shooting, as well.” Shelley indicated that the “only reason he knew

about [the shooting] was because Roosevelt Ellison told him.”

Murphy requested a continuance to speak with Shelley, and

the State argued that Murphy “knew he was a witness, and they had

an opportunity to speak with him,” and “if they had taken the

opportunity to speak with him ... he could have told them about

this.” The State also contended that it had no information about

Shelley in Langford’s investigative report. The trial court denied

Murphy’s motion for a continuance.

(a) Murphy first claims that the State violated Brady by not

disclosing Shelley’s interview or Langford’s notes regarding that

interview. To prevail on his Brady claim, Murphy must prove that:

(1) the State possessed evidence favorable to the

21
defendant; (2) the defendant did not possess the favorable
evidence and could not obtain it himself with any
reasonable diligence; (3) the State suppressed the
favorable evidence; and (4) had the evidence been
disclosed to the defense, a reasonable probability exists
that the outcome of the trial would have been different.

Schofield v. Palmer, 279 Ga. 848, 852 (2005). “Evidence is not

regarded as ‘suppressed’ by the government when the defendant has

access to the evidence before trial by the exercise of reasonable

diligence.” State v. James, 292 Ga. 440, 442 (2013). “The burden of

proof on these elements lies with the defendant,” and “[w]e review a

trial court’s factual findings regarding a Brady claim for clear error

but review the court’s application of the law to the facts de novo.”

Harris v. State, 313 Ga. 653, 664 (2022).

Murphy’s claim fails because he cannot establish that he could

not have obtained Shelley’s statements himself with reasonable

diligence. Here, Murphy’s trial counsel listed Shelley on a witness

list that he emailed to the State on June 30, 2014. Shelley’s existence

was therefore known to Murphy for more than a month prior to trial,

and Murphy could have interviewed Shelley and obtained this

22
testimony by exercising reasonable diligence. See Swindle v. State,

274 Ga. 668, 670 (2002) (no Brady violation when the State did not

disclose the whereabouts of a potential alibi witness where the

witness “was known to Swindle and other defense witnesses, and he

apparently was as available to the defense as he was to the

prosecution”). See also James, 292 Ga. at 442 (no Brady violation

where co-defendants received two pages of a medical examiner’s

report and not the third page when the report was clearly paginated,

putting them on notice that a page was missing, and where third co-

defendant obtained the missing page).

(b) Murphy also argues that, as a result of the alleged Brady

violation, the trial court should have granted his motion for a

continuance so that he could investigate Shelley’s statements and

produce him as a witness at trial.

“In considering a motion for continuance, the trial court enjoys

broad discretion and may grant or refuse the motion as the ends of

justice may require.” Mann v. State, 307 Ga. 696, 703 (2020). “To

obtain a new trial based upon the denial of a motion for a

23
continuance, an appellant must show not only a clear abuse of

discretion on the part of the trial court in denying the motion but

also that he was harmed by that denial.” Id. Here, Shelley was

known to Murphy for more than a month prior to trial, and Murphy

could have easily investigated what he knew about the case prior to

trial. Given these facts, we cannot say that the trial court abused its

discretion in denying Murphy’s request for a continuance. See

Mann, 307 Ga. at 703–04. Accordingly, this enumeration is without

merit.

4. Murphy argues that the trial court erred in instructing the

jury that “[p]resence, companionship and conduct before and after

the offense are circumstances from which one’s participation and

criminal intent may be inferred.” This enumeration is without merit.

We review properly preserved challenges to jury instructions

de novo. See Campbell v. State, 320 Ga. 333, 347 (2024). Murphy

objected to the presence and companionship instruction both at the

charge conference and after the instruction was given to the jury by

the trial court, arguing that the instruction, as given, was

24
inconsistent with the pattern charge on mere presence also given by

the court. Murphy argues that the correct legal theory is as follows:

It is true mere presence at the scene of a crime, even
coupled with knowledge and approval, is insufficient to
convict one of being a party. However, presence,
companionship, and conduct before and after the offense
are circumstances from which one’s participation in the
criminal intent may be inferred. A person will not be
presumed to act with criminal intention, but the trier of
facts may find such intention upon consideration of the
words, conduct, demeanor, motive, and all other
circumstances connected with the act for which the
accused is prosecuted.

At trial, the court gave the following instructions relevant to

intent:

This defendant will not be presumed to have acted with
criminal intent, but you may find such intent, or the
absence of it, upon a consideration of words, conduct,
demeanor, motive and other circumstances connected
with the act for which the accused is being prosecuted.

Every person is presumed to be of sound mind and
discretion, but this presumption may be rebutted. You
may infer if you wish to do so that the act of a person of
sound mind and discretion are the product of that person’s
will, and a person of sound mind and discretion intends
the natural and probable consequences of those acts.

Whether or not you make any such inference or inferences
is a matter solely within your discretion.

25
If one intentionally commits an unlawful act, yet the act
harmed a victim other than the one intended, it is not a
defense that the defendant did not intend to harm the
actual person injured.

Presence, companionship and conduct before and after
the offense are circumstances from which one’s
participation and criminal intent may be inferred.

The trial court later gave the following instructions on mere

presence and association:

A jury is not authorized to find a person who is merely
present at the scene of the commission of a crime at the
time of its perpetration guilty of consent in concurrent
with the commission of the crime unless the evidence
shows beyond a reasonable doubt that such person
committed the alleged crime, helped in the actual
perpetration of the crime, or participated in the criminal
endeavor.

A jury is not authorized to find a person who is merely
associated with other persons involved in the crimes,
involved in the commission of a crime, guilty of consent in
or concurrence in the commission of a crime unless the
evidence shows beyond a reasonable doubt that such
person helped in the actual perpetration of the crime or
participated in the criminal endeavor.

The instructions given by the trial court do not materially differ from

those which Murphy claims should have been given and do not

26
constitute sufficient grounds for reversal. Although the trial court

did not give the instructions in the order advanced by Murphy, that

is not grounds for a new trial, at least absent a showing that the

order in which they were given rendered the instructions erroneous.

See Pruitt v. State, 282 Ga. 30, 33 (2007) (rejecting appellant’s

challenge to the “order in which the trial court gave certain jury

instructions”). Moreover, these jury instructions are not

contradictory. In Pruitt,

The trial court charged the jury that a defendant’s mere
presence at the scene of the commission of a crime did not
authorize finding the defendant guilty unless the
evidence established beyond a reasonable doubt that the
defendant committed the crime, helped in the commission
of the crime, or participated in the criminal endeavor. The
trial court then informed the jury of the elements of the
various crimes the defendants were charged with
committing, and thereafter instructed the jury that
participation in the criminal intent could be inferred from
presence, companionship, and conduct before and after
the commission of the offenses.

282 Ga. at 33. Although the appellant in Pruitt argued that these

jury instructions were “contradictory” and “incomprehensible,” this

Court held that the two charges were “accurate statements of law

27
and are not contradictory.” Id. As in Pruitt, while these charges “are

complementary and are often stated together as a single principle of

law,” their separation does not make “the resulting charge

‘incomprehensible.’” Id.

Murphy also argues that the trial court misstated the presence

and companionship instruction. Although the State requested that

the jury be charged that “[p]resence, companionship and conduct

before and after the offense are circumstances from which one’s

participation in the criminal intent may be inferred,” the trial court

instead gave the instruction that “[p]resence, companionship and

conduct before and after the offense are circumstances from which

one’s participation and criminal intent may be inferred.”

“[C]riminal intent may be inferred from presence,

companionship, and conduct before, during, and after the offense.”

Baker v. State, 320 Ga. 156, 161 (2024) (citation and punctuation

omitted). Thus, even though the trial court did not use exactly the

same language as was requested by the State, the charge as given

did not misstate the law. Moreover, the trial court also instructed

28
the jury that Murphy “will not be presumed to have acted with

criminal intent” but the jury may “find such intent, or the absence

of it, upon a consideration of words, conduct, demeanor, motive and

other circumstances connected with the act for which the accused is

being prosecuted.” The trial court also adequately instructed the

jury on the State’s burden to prove Murphy guilty beyond a

reasonable doubt. This enumeration therefore fails because, as a

whole, the jury instructions adequately instructed the jury on

intent. See Pruitt, 282 Ga. at 33.

5. Murphy argues that the trial court erred in denying his

motion for a directed verdict as to Count 4 of the indictment because

it fails to identify the victims of the offense. This enumeration fails.

Count 4 of the indictment alleges that Murphy “did make an

assault upon several individuals leaving Club 5150 … with an

unknown type handgun, a deadly weapon, by firing the handgun at

Club 5150 as the individuals were leaving the club.” At trial,

Murphy filed a motion for directed verdict as to this count, arguing

that it was deficient because it failed to “state any particular people

29
[that] were shot at.” The trial court denied the motion. On appeal,

Murphy argues that the trial court erred in denying that motion

because Count 4’s failure to identify individuals that Murphy

allegedly assaulted does not adequately inform him of the nature of

the charge against him for double jeopardy purposes.

Murphy’s claim fails, however, because “a motion for directed

verdict of acquittal is not the proper way to contest the sufficiency

of an indictment. A motion for directed verdict of acquittal addresses

the sufficiency of the evidence, not the sufficiency of the underlying

indictment.” Adkins v. State, 279 Ga. 424, 426 (2005) (cleaned up).

Thus, the trial court did not err in denying Murphy’s motion. 9 See

id. (holding that a motion for a directed verdict was not the

appropriate way to challenge an indictment that was allegedly

9 At trial, Murphy’s counsel also moved for a directed verdict as to Count

4 of the indictment because “there is insufficient evidence.” On appeal,
however, Murphy challenges only the trial court’s denial of his motion because
the indictment fails “to adequately inform Murphy of the nature of the charge
against him.” Thus, we decline to address whether the trial court erred by
denying Murphy’s motion for a directed verdict as to Count 4 on the basis that
the evidence was insufficient to support a conviction on that Count. We also
note that Murphy did not file a pretrial special demurrer to challenge the
sufficiency of this Count of the indictment.
30
insufficient because it failed to identify victims by name).

6. Finally, Murphy argues that his trial counsel rendered

constitutionally deficient assistance by failing to call two witnesses,

Phillip Korte and Tavares Jones, to testify that the shooter was in a

white car because their testimony would have contradicted the

testimony of the State’s eyewitnesses, who identified Murphy as the

shooter from a dark-colored car. For the reasons that follow, we

disagree.

A defendant claiming ineffective assistance of counsel must

prove deficient performance by his counsel and resulting prejudice.

See Strickland v. Washington, 466 US 668, 687 (1984). To prove

deficient performance, a defendant must demonstrate that “counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

This requires Murphy to “overcome the strong presumption that

counsel’s performance fell within a wide range of reasonable

professional conduct, and that counsel’s decisions were made in the

exercise of reasonable professional judgment.” Wilson v. State, 313

31
Ga. 319, 322 (2022) (citation and punctuation omitted).

“Importantly, in the absence of evidence to the contrary, counsel’s

decisions are presumed to be strategic and thus insufficient to

support an ineffective assistance of counsel claim.” Id. (citation and

punctuation omitted). “If either Strickland prong is not met, this

Court need not examine the other prong.” Palmer v. State, 303 Ga.

810, 816 (2018).

During the hearing on Murphy’s motion for new trial, Murphy’s

trial counsel testified that, during discovery, he learned that Korte

told law enforcement that the shooter was in a white car. Murphy’s

trial counsel also testified that he learned that Jones likewise said

that the shooter was in a white car.

Murphy’s trial counsel testified that he wanted to “focus” on

the defense theory that “the gun was being held by a different hand”

and that he was “trying to focus the jurors[’] attention on the angle

of Roosevelt Ellison because … [he] believe[d] that was the best.”

Trial counsel further testified that he tried to “keep the jury’s

attention on facts that are important, and also not to call people that

32
may leave me holding it.” Trial counsel acknowledged that

testimony that the shooter’s car was white was “contradictory” to

testimony that it was black or dark-colored, but stated that “we

always have to strategically decide what you’re going to try to focus

the jury’s attention on.”

“[T]he decision of whether to call a witness to testify at trial is

a matter of trial strategy and tactics, and such a strategic and

tactical decision cannot be deemed deficient performance unless the

decision is so unreasonable that no competent attorney would have

made it under similar circumstances.” Roberts v. State, 296 Ga. 719,

724 (2015) (citation and punctuation omitted). Here, trial counsel

testified that he made the strategic decision to focus on the defense

theory that Ellison, not Murphy, was the shooter and believed that

to be a stronger defense than the argument that the shot came from

a white car, not a dark-colored car, as presenting both defenses

might discredit the defense and confuse the jury. We cannot say that

trial counsel’s strategy was objectively unreasonable, especially in

light of Murphy’s own statements to investigators that he left the

33
club with Ellison in a dark-colored vehicle such that testimony that

the shooter rode in a white car may very well have discredited

Murphy’s primary defense. Accordingly, Murphy has not

demonstrated that his trial counsel’s performance was deficient, and

his claim of ineffective assistance of counsel therefore fails.

7. Citing State v. Lane, 308 Ga. 10 (2020), Murphy argues that,

“in weighing the prejudicial effect on Murphy’s trial, trial counsel’s

deficiency is to be considered cumulatively with any errors by the

trial court.” “In considering a claim of cumulative error, we evaluate

only the effects of matters determined to be error, not the cumulative

effect of non-errors.” O’Neal v. State, 316 Ga. 264, 271 (2023).

Because none of Murphy’s claims of error have succeeded and he has

not shown that his counsel performed deficiently, “there are no

errors to aggregate, and his claim of cumulative error also fails.” Id.

Judgment affirmed. All the Justices concur.