CourtListener 10679778

Testo completo

315 Ga. 19
FINAL COPY

S22A0801. WILLIS v. THE STATE.

PINSON, Justice.

Stephen Willis was convicted along with four co-defendants of

crimes arising from the shooting death of Nicholas Hagood.1 On

1 The crimes occurred on April 16, 2014. On July 18, 2014, a Fulton

County grand jury indicted Willis and four co-defendants—Tavius Bates,
Demetrius Fortson, Octavious Jordan, and Jeremy Southern—on eight counts
each: malice murder, armed robbery, felony murder predicated on armed
robbery, hijacking a motor vehicle, felony murder predicated on hijacking a
motor vehicle, aggravated assault, felony murder predicated on aggravated
assault, and possessing a firearm during the commission of a felony. Willis
alone was also indicted for possession of a firearm by a convicted felon and
felony murder predicated on that charge. The defendants were tried together
before a jury from August 28 to September 8, 2017. The jury found Willis not
guilty of malice murder but guilty of all other counts. The jury found Southern
guilty of all counts and found Fortson, Bates, and Jordan not guilty of malice
murder but guilty of the remaining counts. We affirmed Fortson’s convictions
on appeal. See Fortson v. State, 313 Ga. 203 (869 SE2d 432) (2022). Willis was
sentenced to life in prison for felony murder predicated on armed robbery, 20
years in prison for hijacking a motor vehicle, five years in prison for possessing
a firearm as a convicted felon, and five years in prison suspended for possessing
a firearm during the commission of a felony, all to run concurrently. The
aggravated assault and armed robbery counts merged for sentencing purposes
with the felony murder count predicated on armed robbery, and the other
felony murder sentences were vacated by operation of law. On September 13,
2017, Willis filed a timely motion for new trial, which he amended twice
through new counsel. After a hearing, the trial court denied the motion for new
trial, as amended, on January 31, 2022. On February 1, 2022, Willis filed a
appeal, Willis contends that (1) the evidence was insufficient to

sustain his convictions, (2) the trial court plainly erred by failing to

instruct the jury that the testimony of an accomplice requires

corroboration, and (3) his trial counsel was ineffective for allowing

an exhibit to be introduced that included information about his prior

encounters with law enforcement, not requesting a limiting

instruction as to how the jury could consider that felony conviction,

and failing to move to suppress the search warrant that yielded

Willis’s phone records.

We conclude that the evidence was sufficient to support Willis’s

convictions. Further, the failure to give an accomplice-corroboration

jury instruction was not plain error, because even assuming the

instruction should have been given, the failure to give it was not

likely to have affected the outcome of the trial in light of the

substantial evidence against Willis. Finally, Willis failed to

establish that he received ineffective assistance of counsel at trial.

timely notice of appeal. The case was docketed to the April 2022 term of this
Court and submitted for a decision on the briefs.
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He has not shown that he was prejudiced by the introduction of the

exhibit that showed his prior criminal history, and his counsel was

not deficient for failing to move to suppress the search warrant

because the warrant was supported by probable cause: the warrant

application relied in part on a statement from a named informant

that was against the informant’s penal interest. So we affirm.

1. The evidence at trial showed the following. On April 16,

2014, just after 12:30 p.m., Rayshon Smith was robbed at gunpoint.

Smith was outside his cousins’ apartment building in Austell, in

Cobb County, when he noticed a car driving slowly past. The car was

a silver or gray Ford Taurus with tinted windows, and Smith could

see four men inside. Smith then noticed two men walking toward

him. One of them came right up to Smith, pointed a gun at him, and

went through his pockets while looking him in the eye. The man took

Smith’s wallet, phone, and keys. The other man also had a gun but

did not come as close.

After the men left, Smith went into the apartment building and

called the police. He gave the police the number of his phone that

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was stolen. Later, Smith identified Willis’s co-defendant Jeremy

Southern in a photo array as the man who had been closest to him

during the robbery.

About a half-hour later, at around 1:00 p.m., Joseph James was

at home in his apartment in Fulton County, not far from where

Smith was robbed. James was looking out the window into the

parking lot when he noticed two cars pulling up. One of the cars,

which was driven by Hagood, pulled into a parking space. The other

car wedged behind it. When Hagood got out of the car, he seemed

“out of place” and “slightly disoriented.” James saw Hagood and a

man with dreadlocks standing next to the car that Hagood had been

driving, while a third man remained in that car. Four or five men

were in the other car. As James watched, Hagood appeared to check

his pockets, and then appeared to mouth “I don’t have anything” or

“I don’t have it” to the man with dreadlocks. The man with

dreadlocks appeared to “check” Hagood, “like trying to figure out

does he have something.” At that point, one of the men from the

second car got out, holding a gun, and moved toward Hagood and

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the man with dreadlocks. Hagood tried to run. James heard a

gunshot. The medical examiner testified at trial that Hagood was

killed by a gunshot wound to the back.

James called 911 at 1:16 p.m. Later, when shown photo arrays,

James identified Southern as the man with the gun and another of

Willis’s co-defendants, Tavius Bates, as the man with dreadlocks

who had been speaking to Hagood.2

Detective Scott Demeester, the lead investigator on the case,

arrived at the scene at around 1:45 p.m. Detective Demeester

contacted Hagood’s wife, who told him that Hagood normally would

have a cell phone and a car, neither of which was found at the crime

scene. Hagood’s wife gave the detective Hagood’s cell-phone number

and the tag number for his white Toyota Corolla. Detective

Demeester put out alerts for both the phone and the car.

At the murder scene, police found a wallet and set of keys

belonging to Smith, who had recently been robbed nearby. Detective

2 At trial, James admitted that he was “troubled” when he identified

Bates in the photo array, because the photo of Bates in the array did not show
him with a dreadlocks hairstyle. See Fortson, 313 Ga. at 210 (1).
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Demeester contacted Smith and learned that his cell phone had been

stolen in the robbery. The detective then subpoenaed the phone

records associated with Smith’s stolen phone, as well as those

associated with Hagood’s missing phone.

The records from Hagood’s phone showed that after the

shooting, at 1:29 p.m., someone sent a text message to Hagood’s

phone. But that message was not received until 3:10 p.m., indicating

that the phone was powered off or otherwise disconnected in the

interim. When Hagood’s phone finally received the message, it

“pinged” off a cell tower in the area of an apartment complex on

Kelly Lake Road in Decatur. The aunt of one of Willis’s co-

defendants, Octavious Jordan, lived in that apartment complex.

Jordan himself was living at a nearby hotel, and Southern lived in

the area too. A maintenance man from the Kelly Lake Road

apartment complex testified that he had seen Hagood’s white Toyota

Corolla and the defendants’ silver Ford Taurus parked at that

apartment complex later in the week, after the shooting. Hagood’s

car was eventually recovered in the same area.

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The records from Smith’s cell phone showed that someone used

it several hours after it was stolen to call Metro PCS customer

service to unlock it. After it was unlocked, the phone was used to

place and receive calls and text messages to and from people the

phone had never been used to contact before it was stolen. The new

contacts included Jordan’s girlfriend, Willis, Southern, and a phone

number belonging to the mother of the fourth co-defendant,

Demetrius Fortson, who often used his mother’s phone. Police

searched the phone of another of the new contacts in Smith’s phone,

Dionte Wooten, and found that Smith’s number was saved in

Wooten’s phone under Jordan’s nickname, “Tay Tay.”

Jordan and Bates were arrested and interviewed. Portions of

their statements were played for the jury. In Jordan’s interview, he

admitted that he was present at the armed robbery of Smith, that

he took Smith’s phone (and later sold it), and that he then drove to

another location where a “white man” was robbed. Bates, in his

statement, admitted that he was present at both the robbery of

Smith and the shooting of Hagood. Neither Jordan nor Bates

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mentioned Willis or any other co-defendant in the redacted portions

of their statements that were played at trial.

In the portion of Jordan’s interview that the jury did not hear,

Jordan identified Willis and the other co-defendants. Using that

information, Detective Demeester obtained a search warrant for the

cell-phone records of Willis, Bates, Jordan, and Southern, as well as

of Fortson’s mother. From those records, detectives put together a

timeline of the defendants’ whereabouts and phone activities on the

day of the crimes.

The cell-phone evidence showed the following. On the morning

of the crimes, Willis, Jordan, and Southern were in contact with each

other. Jordan and Southern started out in the area of Decatur where

they both lived, and Willis started out somewhere west of Stone

Mountain. Shortly after 10:30 a.m., Jordan and Southern drove

north on I-285 toward Stone Mountain Highway, then east on the

highway toward Stone Mountain. Jordan and Southern called Willis

at 10:48 a.m. and 10:59 a.m., respectively; all three phones pinged

off the same cell tower near Stone Mountain. A little later, Jordan

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and Southern drove west on Stone Mountain Highway and south on

I-285, heading back the way they had come. (There was no testimony

about Willis’s phone activity during that period.) At 12:05 p.m.,

Southern called Fortson’s mother’s phone while Southern was

approaching Fortson’s home in southeast Atlanta.

A short time later, just after Smith was robbed, Jordan

received a call at 12:37 p.m., and Willis made and received calls at

12:43 p.m. and 12:47 p.m., all in the area of the robbery. Southern’s

phone pinged off a cell tower in the same area at the same time.

Likewise, minutes before Hagood was killed, Willis, Jordan, and

Southern all made calls near the murder scene.

The phones went silent for a time after the murder. Then at

1:47 p.m., Willis made a call near Fortson’s home. The other four

defendants’ phones all pinged off the same cell tower around that

time. At 2:11 p.m., Southern called Willis from near Southern’s

home. All five defendants’ phones pinged off cell towers in the same

area that afternoon—as did Hagood’s stolen phone, at 3:10 p.m.

Detective Demeester testified that in the six-week period for

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which he reviewed Willis’s phone records, the day of the crime was

the only time Willis’s phone pinged near either Fortson’s home or

Jordan’s and Southern’s homes.

Willis was arrested at the home of his girlfriend in Austell. He

was found hiding in a bedroom closet. Police seized his cell phone;

Willis later denied having the cell-phone number that was

associated with that phone. He also denied knowing Jordan,

although one of the contacts in his phone was listed under Jordan’s

nickname with the phone number of Jordan’s girlfriend.

None of the defendants testified at trial.

2. Willis contends that the evidence was not sufficient to

sustain his convictions. Relying on OCGA § 24-14-6, he argues that

the evidence that he was a party to the crimes, which was entirely

circumstantial, did not exclude all reasonable hypotheses other than

his guilt.3

3 Although Willis cites Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781,

61 LE2d 560) (1979), he makes no argument about the constitutional
sufficiency of the evidence, relying instead solely on his arguments under
OCGA § 24-14-6.
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A conviction can rest on circumstantial evidence alone if that

evidence “exclude[s] every other reasonable hypothesis save that of

the guilt of the accused.” OCGA § 24-14-6. See Davenport v. State,

309 Ga. 385, 388 (1) (846 SE2d 83) (2020). Not every hypothesis is a

“reasonable” one, and the evidence “need not exclude every

conceivable inference or hypothesis,” only the reasonable ones.

Graves v. State, 306 Ga. 485, 487 (1) (831 SE2d 747) (2019) (citation

and punctuation omitted; emphasis in original). The questions

whether any alternative hypotheses are reasonable and whether the

circumstantial evidence excludes any such hypotheses are for the

jury. Id. See also Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d

855) (2009). And we will not disturb the jury’s findings on those

questions unless they are “insupportable as a matter of law.” Graves,

306 Ga. at 487 (1) (citation and punctuation omitted).

A jury may find a defendant guilty beyond a reasonable doubt

if the evidence shows either that he directly committed the crime or

that he was a “party thereto.” See OCGA § 16-2-20 (a). A person is a

party to the crime if he aids or abets in its commission or if he

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“advises, encourages, hires, counsels, or procures another” to

commit it. Id. at (b) (4). See also Carter v. State, 314 Ga. 317, 319 (2)

(a) (877 SE2d 170) (2022). And although the defendant’s mere

presence at the scene is not enough to convict him as a party to the

crime, the jury may infer his criminal intent from his “presence,

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

Jones v. State, 314 Ga. 214, 231-32 (3) (875 SE2d 737) (2022)

(citation and punctuation omitted).

Here, there was sufficient evidence for the jury to find both that

Willis’s co-defendants directly committed the crimes and that Willis

was guilty as a party to the crimes. To begin with, as Willis concedes,

there was direct evidence that his co-defendants committed the

crimes. A witness to the murder, James, identified Southern as the

shooter and Bates as the second person who confronted Hagood.

Jordan also admitted to his own participation. See Thrift v. State,

310 Ga. 499, 502 (1) (852 SE2d 560) (2020) (confessions are direct

evidence of guilt); Jackson v. State, 307 Ga. 770, 772 (838 SE2d 246)

(2020) (eyewitness testimony is direct evidence of guilt). And ample

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circumstantial evidence corroborated these accounts. After the

murder, Hagood’s stolen phone pinged in the area where Bates,

Fortson, and Southern all lived, and Hagood’s stolen car was

recovered in the same area. See Carter v. State, 305 Ga. 863, 867 (2)

(828 SE2d 317) (2019) (circumstantial evidence of guilt included the

location of the victim’s phone after the victim’s death). In addition,

there was evidence suggesting that the men who shot Hagood were

the same men who had earlier robbed Smith—Smith’s stolen wallet

and keys were found at the murder scene—and from that inference

flowed further evidence implicating the group. Smith identified

Southern as one of the robbers, and after the murder, Jordan used

Smith’s stolen phone and later sold it. See Eckman v. State, 274 Ga.

63, 65 (1) (548 SE2d 310) (2001) (circumstantial evidence of guilt

included defendant’s use of “the fruits of the multi-county crime

spree”).

There was also sufficient evidence from which the jury could

find that Willis was part of the group that committed the crimes.

Both eyewitnesses, James and Smith, saw at least four men at the

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respective crime scenes. Willis’s cell-phone records offered strong

support that he was one of those men. The phone records showed not

only that Willis was near the location of both crimes at the time they

were committed, but also that he moved around the city with his co-

defendants after the crimes, and that he was in communication with

them throughout the day. Willis called or texted with Southern and

Jordan in the morning as the latter two drove toward Stone

Mountain, where Willis started his day. Later, Willis’s phone was

used in the area where Smith was robbed, and shortly thereafter, it

was used again near where Hagood was murdered. Still later, his

phone was active near Fortson’s home, and then near Jordan’s and

Southern’s homes—as were the phones of all his co-defendants.

Detective Demeester testified that the day of the crimes was the only

day in a six-week span in which Willis’s phone pinged near

Fortson’s, Jordan’s, or Southern’s homes. And when Willis was

arrested, he denied having the phone number associated with the

phone in his possession, and denied knowing Jordan despite

evidence to the contrary.

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This evidence authorized the jury to reject as unreasonable the

hypotheses that Willis urges on appeal—that he was merely present

at the scene of Hagood’s murder, and that when his phone pinged

near the Smith robbery, he was actually at his girlfriend’s home

nearby. See OCGA § 24-14-6; Poole v. State, 312 Ga. 515, 522-23 (863

SE2d 93) (2021). See also Copeland v. State, 314 Ga. 44, 46-47 (2)

(875 SE2d 636) (2022) (evidence of guilt included cell-site location

data that placed defendant at scene of crime and corroborated

witness’s account). The jury instead could have inferred Willis’s

criminal intent from his presence at the crime scenes, his

companionship and communication with the group before and after

the crimes, and his later disavowal of both his own cell-phone

number and of knowing Jordan. See Jones, 314 Ga. at 232 (3).

Compare Taylor v. State, 297 Ga. 132, 135 (2) (772 SE2d 630) (2015)

(evidence of guilt insufficient when only corroborating evidence of

defendant’s participation was testimony of one witness who saw

defendant in co-defendant’s car some time later). Because the jury’s

finding was not insupportable as a matter of law, we do not disturb

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it. Graves, 306 Ga. at 487 (1).

3. Willis contends that the trial court erred by failing to give a

jury instruction about the statutory requirement of accomplice

corroboration. Under OCGA § 24-14-8, “[t]he testimony of a single

witness is generally sufficient to establish a fact”; but in a felony

case, if “the only witness is an accomplice,” then the testimony of

that witness “shall not be sufficient” and requires corroboration. The

“corroboration requirement applies even when the accomplice does

not testify in court, if his statements are admitted through another

witness.” Finney v. State, 311 Ga. 1, 10 (2) (b) (855 SE2d 578) (2021).

In Willis’s view, the accomplice-corroboration instruction should

have been given in light of the out-of-court statements from Bates

and Jordan that were played at trial.

(a) The trial court gave several jury instructions that related

to the co-defendants’ out-of-court statements. First, the court

instructed the jury that the testimony of a single witness is enough

to establish a fact. Then the trial court began to tell the jury that an

“exception” to this rule exists when the witness is an accomplice, in

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which case the accomplice’s testimony must be supported by some

other evidence. But the State objected to that charge, arguing that

it was an “improper charge for this case,” and the trial court agreed,

saying, “Strike that. Strike that.” Finally, the trial court instructed

the jury that it could consider each of the co-defendants’ out-of-court

statements only against the defendant who had made the statement.

(b) Willis did not object at trial to the failure to give an

accomplice-corroboration instruction, so we review the claim for

plain error. See Harris v. State, 313 Ga. 872, 879 (3) (874 SE2d 73)

(2022). To show plain error, an appellant must show that (1) the

alleged error was not affirmatively waived, (2) it was obvious beyond

reasonable dispute, and (3) it affected the appellant’s substantial

rights, which ordinarily means showing that it affected the outcome

of the trial. See Hawkins v. State, 304 Ga. 299, 302 (3) (818 SE2d

513) (2018). Finally, if those three prongs are satisfied, an appellate

court has the discretion to remedy the error only if the error

“seriously affect[ed] the fairness, integrity or public reputation of

judicial proceedings.” Id. at 302 (citation and punctuation omitted).

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Pretermitting whether it was error for the trial court not to

give an accomplice-corroboration jury instruction in this case, Willis

has not shown that the failure to give the instruction likely affected

the outcome of his trial. As we recounted in Division 2, ample

evidence of Willis’s guilt did not come from Jordan’s and Bates’s

statements, including eyewitnesses identifying his co-defendants as

the direct perpetrators of the crimes, and cell-phone records placing

Willis at the crime scenes and underscoring that he and his co-

defendants were in communication with each other and in each

other’s presence throughout the day. The evidence against him did

not rely entirely, or even significantly, on the statements from

Jordan and Bates. See Payne v. State, 314 Ga. 322, 326 (1) (877 SE2d

202) (2022) (failure to give accomplice-corroboration instruction did

not likely affect outcome of trial in light of significant evidence of

guilt other than accomplice testimony); Hawkins, 304 Ga. at 303 (3)

(same). Compare State v. Johnson, 305 Ga. 237, 241 (824 SE2d 317)

(2019) (“because virtually all of the incriminating evidence flowed

from [an accomplice], the outcome of the trial court proceedings was

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‘likely affected’ by the trial court’s failure to provide an accomplice

corroboration charge”) (emphasis supplied). Indeed, the only

portions of Bates’s and Jordan’s statements that were played at trial

made no mention of Willis, and did not connect him to the crimes.

Cf. Pindling v. State, 311 Ga. 232, 236 (2) (857 SE2d 474) (2021)

(statute requires accomplice-corroboration instruction “if there is

evidence that could support a finding that a witness was an

accomplice to the crime, and that witness provides testimony that

directly links the defendant to the crime”). Moreover, the trial court

instructed the jury to consider Bates’s and Jordan’s statements only

against the men who made them—Bates and Jordan, respectively—

and “[q]ualified jurors under oath are presumed to follow the trial

court’s instructions.” Holland v. State, 314 Ga. 181, 192 (3) (b) (875

SE2d 800) (2022) (citation and punctuation omitted). Given the

significant other evidence against Willis, and the minimal degree to

which Bates’s and Jordan’s statements implicated him, Willis has

not shown that the failure to give an accomplice-corroboration

instruction likely affected the outcome of his trial. Without that

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showing, we find no plain error. See Hawkins, 304 Ga. at 302 (3).

4. Willis contends that his trial counsel rendered

constitutionally ineffective assistance in a number of ways.

To succeed on a claim of ineffective assistance, a defendant

must establish both that his counsel’s performance was deficient

and that he was prejudiced as a result of that deficient performance.

See Washington v. State, 313 Ga. 771, 773 (3) (873 SE2d 132) (2022)

(citing Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt

2052, 80 LE2d 674) (1984)). To establish deficient performance, a

defendant must establish that counsel “performed his duties in an

objectively unreasonable way, considering all the circumstances and

in the light of prevailing professional norms.” Id. (citation and

punctuation omitted). To overcome the “strong presumption” that

counsel performed reasonably, the defendant must show that “no

reasonable lawyer would have done what his lawyer did, or would

have failed to do what his lawyer did not.” Id. (citation and

punctuation omitted). And counsel’s decisions about trial tactics and

strategy in particular may not form the basis of an ineffectiveness

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claim unless they were “so patently unreasonable that no competent

attorney would have followed such a course.” Id. (citation and

punctuation omitted). To establish prejudice, a defendant must

establish that there is a “reasonable probability that, but for

counsel’s deficiency, the result of the trial would have been

different.” Id. A reasonable probability is a probability “sufficient to

undermine confidence in the outcome” of the trial. Neal v. State, 313

Ga. 746, 751 (3) (873 SE2d 209) (2022) (citation and punctuation

omitted).

If the defendant fails to satisfy either part of the

Strickland test, his claim fails, and we need not address the other

part. Washington, 313 Ga. at 773 (3). Finally, when reviewing

ineffective-assistance claims, we accept the trial court’s factual

findings unless clearly erroneous, but we independently apply legal

principles to the facts. See Lyons v. State, 309 Ga. 15, 25 (8) (843

SE2d 825) (2020).

(a) Willis first contends that trial counsel was ineffective for

failing to limit the jury’s access to State’s Exhibit 115, a certified

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copy of Willis’s 2013 felony conviction (by guilty plea) for possession

of cocaine. The State introduced the exhibit to establish that Willis

was a previously convicted felon. But the exhibit also showed Willis’s

misdemeanor convictions from the same incident for possession of

marijuana and obstructing a law enforcement officer. The narrative

of the incident described Willis jumping off a second-floor balcony to

avoid arrest. In addition, the exhibit showed that three days before

the cocaine-possession incident, Willis had an arrest warrant issued

for battery and obstructing a 911 call, and that he had had his bond

revoked as a result. Willis argues that counsel should have

stipulated to his status as a convicted felon to prevent the jury from

seeing the full exhibit.

Even assuming counsel’s performance was deficient for the

reasons Willis gives, Willis has failed to establish prejudice. A

defendant may be prejudiced by the admission of a prior conviction

into evidence when the “prior conviction is of the nature likely to

inflame the jury’s passions and raise the risk of a conviction based

on improper considerations.” Parker v. State, 309 Ga. 736, 745 (5)

22
(848 SE2d 117) (2020) (citation and punctuation omitted). But here,

the material in Exhibit 115—information about Willis’s

misdemeanor convictions for possession of marijuana and

obstructing a law enforcement officer, the narrative of him jumping

off a balcony to elude arrest, and the booking report showing his

arrest for battery and the revocation of his bond—was relatively

mild compared to the crimes with which Willis was charged—

murder, armed robbery, and carjacking, among others. Because

such information was unlikely to “inflame the jury’s passions”

against him, and the evidence against Willis was strong, Willis has

not established a reasonable probability that the result of his trial

would have been different if his counsel had prevented the exhibit

from being introduced in full. See id. at 744-47 (5) (in a murder case,

defendant not prejudiced by counsel’s failure to stipulate to

convicted felon status, because evidence of guilt was strong and

jury’s passions were unlikely to be inflamed by prior convictions for

aggravated robbery and bringing prohibited item into government

facility); Moore v. State, 306 Ga. 532, 534-35 (2) (b) & n.2 (832 SE2d

23
384) (2019) (same, with past convictions for possession of marijuana,

eluding a police officer, and driving violations); Ballard v. State, 297

Ga. 248, 252-53 (6) (a) (773 SE2d 254) (2015) (same, with past

convictions for aggravated assault and burglary with intent to

commit aggravated assault). So Willis’s claim of ineffective

assistance on this ground fails.

(b) In a related enumeration, Willis contends that his trial

counsel was ineffective for failing to request a jury instruction

limiting the jury’s use of Exhibit 115 to establishing Willis’s status

as a convicted felon (and for failing to object when the trial court’s

jury charge did not include that limiting instruction). But Willis has

not shown a reasonable probability that the result of his trial would

have been different if the trial court had given that instruction. As

we explained in Division 4 (a), the evidence against Willis was

strong, and the information in Exhibit 115 was relatively mild

compared to the crimes with which he was charged. So the jury

knowing all of that information—rather than knowing only that

Willis was a convicted felon—was not reasonably likely to change

24
the verdict. By the same token, the absence of an instruction

allowing the jury to consider the information in Exhibit 115 only for

the purpose of establishing that Willis was a convicted felon was not

reasonably likely to change the verdict. Willis’s claim of ineffective

assistance on this ground fails, too.

failing to move to suppress search warrant SW-007220, which

authorized the seizure of his cell-phone records. Willis contends that

the warrant, which he introduced into evidence at the hearing on

the motion for new trial, was not supported by probable cause

because it rested on the uncorroborated statement of his co-

defendant, Jordan.

A magistrate may issue a search warrant upon the sworn

application of a law enforcement officer that (1) sets forth “facts

sufficient to show probable cause that a crime is being committed or

has been committed” and (2) “particularly describes the place or

person, or both, to be searched and things to be seized.” OCGA § 17-

5-21 (a). To determine whether probable cause exists, the magistrate

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must review the search-warrant application and “make a practical,

common-sense decision whether, given all the circumstances set

forth in the affidavit before him, there is a fair probability that

contraband or evidence of a crime will be found in a particular

place.” Johnson v. State, 310 Ga. 685, 694 (4) (b) (853 SE2d 635)

(2021) (citation and punctuation omitted). The magistrate’s decision

to issue the warrant is entitled to “substantial deference” by a

reviewing court, whose task is to determine if the magistrate had a

“substantial basis” for concluding that probable cause existed. Id.

(citations and punctuation omitted). And we have held that “when a

named informant makes a declaration against penal interest and

based on personal observation, that in itself provides a substantial

basis for the magistrate to credit that statement.” Graddy v. State,

277 Ga. 765, 766 (1) (596 SE2d 109) (2004) (citation and punctuation

omitted; emphasis in original). See also id. (“inculpatory statements

that are made by a known or identified informant can establish

probable cause for issuance of a search warrant”).

Here, Willis has not met the high burden required to overturn

26
the magistrate’s probable-cause determination, or, by extension, to

suppress warrant SW-007220. See Johnson, 310 Ga. at 694 (4) (b).

In the probable-cause affidavit supporting the warrant application,

Detective Demeester described how he identified Jordan as the

possessor of Hagood’s stolen cell phone, and how Jordan, in his

interview, identified Willis and the other co-defendants, admitted

that he was the driver of the group’s car at the robbery of Smith, and

admitted that he was the driver of one of the group’s cars when

Hagood was killed. In other words, Jordan, a named informant, gave

a statement against his penal interest and based on his personal

knowledge. That statement by itself provided a substantial basis for

a magistrate to find probable cause. See Graddy, 277 Ga. at 766 (1).

Moreover, Jordan’s statement was not the only evidence supporting

the warrant application. The affidavit also attested that Willis’s

number appeared in Smith’s stolen cell phone, which tended to

confirm that, at the very least, he knew the person who had stolen

it.

Because the magistrate had a “substantial basis” for

27
concluding that probable cause existed, a motion to suppress would

have been meritless. And failing to file a meritless motion to

suppress is not deficient performance. See, e.g., Keller v. State, 308

Ga. 492, 499 (2) (c) (842 SE2d 22) (2020). So Willis’s final claim of

ineffective assistance fails.

Judgment affirmed. All the Justices concur, except Peterson,
P. J., not participating.

Decided October 25, 2022.

Murder. Fulton Superior Court. Before Judge Krause.

Matthew K. Winchester, William N. Kelbaugh, for appellant.

Fani T. Willis, District Attorney, Lyndsey H. Rudder, Kevin C.

Armstrong, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

General, Paula K. Smith, Senior Assistant Attorney General, Parisa

F. Sarfarazi, Assistant Attorney General, for appellee.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia

Decided: October 25, 2022

S22A0801. WILLIS v. THE STATE.

PINSON, Justice.

Stephen Willis was convicted along with four co-defendants of

crimes arising from the shooting death of Nicholas Hagood.1 On

The crimes occurred on April 16, 2014. On July 18, 2014, a Fulton
1

County grand jury indicted Willis and four co-defendants—Tavius Bates,
Demetrius Fortson, Octavious Jordan, and Jeremy Southern—on eight counts
each: malice murder, armed robbery, felony murder predicated on armed
robbery, hijacking a motor vehicle, felony murder predicated on hijacking a
motor vehicle, aggravated assault, felony murder predicated on aggravated
assault, and possessing a firearm during the commission of a felony. Willis
alone was also indicted for possession of a firearm by a convicted felon and
felony murder predicated on that charge. The defendants were tried together
before a jury from August 28 to September 8, 2017. The jury found Willis not
guilty of malice murder but guilty of all other counts. The jury found Southern
guilty of all counts and found Fortson, Bates, and Jordan not guilty of malice
murder but guilty of the remaining counts. We affirmed Fortson’s convictions
on appeal. See Fortson v. State, 313 Ga. 203 (869 SE2d 432) (2022). Willis was
sentenced to life in prison for felony murder predicated on armed robbery, 20
years in prison for hijacking a motor vehicle, 5 years in prison for possessing a
firearm as a convicted felon, and 5 years in prison suspended for possessing a
firearm during the commission of a felony, all to run concurrently. The
aggravated assault and armed robbery counts merged for sentencing purposes
with the felony murder count predicated on armed robbery, and the other
appeal, Willis contends that (1) the evidence was insufficient to

sustain his convictions, (2) the trial court plainly erred by failing to

instruct the jury that the testimony of an accomplice requires

corroboration, and (3) his trial counsel was ineffective for allowing

an exhibit to be introduced that included information about his prior

encounters with law enforcement, not requesting a limiting

instruction as to how the jury could consider that felony conviction,

and failing to move to suppress the search warrant that yielded

Willis’s phone records.

We conclude that the evidence was sufficient to support Willis’s

convictions. Further, the failure to give an accomplice-corroboration

jury instruction was not plain error, because even assuming the

instruction should have been given, the failure to give it was not

likely to have affected the outcome of the trial in light of the

felony murder sentences were vacated by operation of law. On September 13,
2017, Willis filed a timely motion for new trial, which he amended twice
through new counsel. After a hearing, the trial court denied the motion for new
trial, as amended, on January 28, 2022. On February 1, 2022, Willis filed a
timely notice of appeal. The case was docketed to the April 2022 term of this
Court and submitted for a decision on the briefs.
2
substantial evidence against Willis. Finally, Willis failed to

establish that he received ineffective assistance of counsel at trial.

He has not shown that he was prejudiced by the introduction of the

exhibit that showed his prior criminal history, and his counsel was

not deficient for failing to move to suppress the search warrant

because the warrant was supported by probable cause: the warrant

application relied in part on a statement from a named informant

that was against the informant’s penal interest. So we affirm.

1. The evidence at trial showed the following. On April 16,

2014, just after 12:30 p.m., Rayshon Smith was robbed at gunpoint.

Smith was outside his cousins’ apartment building in Austell, in

Cobb County, when he noticed a car driving past slowly. The car was

a silver or gray Ford Taurus with tinted windows, and Smith could

see four men inside. Smith then noticed two men walking towards

him. One of them came right up to Smith, pointed a gun at him, and

went through his pockets while looking him in the eye. The man took

Smith’s wallet, phone, and keys. The other man also had a gun but

did not come as close.

3
After the men left, Smith went into the apartment building and

called the police. He gave the police the number of his phone that

was stolen. Later, Smith identified Willis’s co-defendant Jeremy

Southern in a photo array as the man who had been closest to him

during the robbery.

About a half hour later, at around 1:00 p.m., Joseph James was