CourtListener 10680222

Testo completo

320 Ga. 308
FINAL COPY

S24A1356. GUDE v. THE STATE.

MCMILLIAN, Justice.

Appellant DeRon Edrias Gude was convicted of felony murder

and other charges in relation to the shooting death of Nyyokokie

Hendley.1 On appeal, Gude argues that the trial court committed

1 Hendley died on October 11, 2016. On January 25, 2018, a DeKalb
County grand jury indicted Gude for malice murder (Count 1), felony murder
predicated on aggravated assault (Count 2), felony murder predicated on
possession of a firearm by a convicted felon (Count 3), aggravated assault
(Count 4), possession of marijuana with intent to distribute (Count 5),
possession of a firearm during the commission of a felony (Count 6), and
possession of a firearm by a convicted felon (Count 7). At a trial from December
17 through 21, 2018, the trial court granted Gude’s motion for a directed
verdict of acquittal on the marijuana charge, and the jury found Gude not
guilty of malice murder but guilty on all the remaining counts. The trial court
sentenced Gude to serve life in prison for felony murder predicated on
aggravated assault, plus a consecutive five years for possession of a firearm
during the commission of a felony; the other counts were vacated by operation
of law or merged for sentencing purposes. See Dixon v. State, 302 Ga. 691, 698
(808 SE2d 696) (2017) (“[W]hen a merger error benefits a defendant and the
State fails to raise it by cross-appeal, we henceforth will exercise our discretion
to correct the error upon our own initiative only in exceptional
circumstances.”).
Gude filed a timely motion for new trial on December 26, 2018, which
was amended by new counsel on August 18, 2023. Following a hearing on
November 6, 2023, the trial court denied Gude’s motion for new trial, as
amended, on November 9, 2023. Gude filed a timely notice of appeal on
December 6, 2023, and the case was docketed to the August 2024 term of this
Court and thereafter submitted for a decision on the briefs.
plain error in its jury charge on aggravated assault and that his trial

counsel rendered ineffective assistance by failing to object to that

instruction. For the reasons that follow, we affirm.

The evidence presented at trial showed the following. Gude had

begun dating Hendley a little more than a month before her death.

On October 11, 2016, at 9:41 p.m., Gude called 911 from his home

and told the operator that he’d “like to report a shooting,” “[i]t was a

fight and the gun went off,” and Hendley landed on the gun after

being shot. Officers responded, and Gude directed them where

Hendley lay, dead from a gunshot to the head. Officers recovered a

9-millimeter handgun belonging to Hendley near her feet, which

was loaded with .380-caliber rounds; live and spent .380-caliber

shell casings; and an unlocked safe containing marijuana and

money.

Officers transported Gude to police headquarters where he

waived his rights under Miranda2 and was interviewed by police.

2 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966).
2
Gude told officers that Hendley had called him earlier that day,

accused him of being with another woman, and threatened to shoot

him in the head. When he arrived home, Hendley slapped him and

put a gun to his head before she started damaging his property

inside the condominium. When Gude insisted Hendley leave, she

cocked the gun and pointed it at him, so he “rushed her with both

hands out hitting the hand with the gun and her arm at the time.

The gun went off, fell to the ground. [He] looked to see if she was hit

and then called 911 and waited outside for police.” Gude’s police

interview was audio recorded and played for the jury at trial. Gude

also provided a handwritten statement of this account to officers.

At trial, a female friend of Gude’s testified that Gude was at

her townhouse working on her car on the afternoon of October 11.

She noticed Gude’s phone ringing more than usual and that he

seemed upset, telling her that he needed to go home. At one point,

after looking at his phone, Gude told the friend that the surveillance

cameras at his home were disabled. She agreed to drive Gude home

and on the way, she stopped for gas not far from Gude’s home. Gude

3
got out of the car and said, “I have to go deal with this crazy b**ch,”

“that’s at my house,” and he walked home from there.

Gude testified in his own defense at trial, where he provided a

different version of events than the version he had provided to the

police. At trial, Gude testified that he had been working on the car

for his female friend on October 11 and that Hendley started texting

and calling him, asking, “Who the f**king car you working on? . . .

Who is that b**ch you with?” His friend drove him toward his

apartment. During the drive, he tried to check his home surveillance

cameras on his cell phone but noticed that “they were off”; when his

friend stopped for gas, he told her, “I got a crazy b**ch at my house

and I need — I don’t know what she’s going to do,” and he walked

home from there. During the walk, he received a call from Hendley,

who said, “don’t play with my feelings. You come your a** here, I’ll

put a bullet in your head.” When Gude arrived home, Hendley

punched him and put a gun to his head. Hendley didn’t shoot Gude,

but instead began destroying things in the home, and when she

knocked several items off the coffee table, those items included a box

4
that contained Gude’s .380-caliber handgun. When Gude’s gun fell

out of the box, Hendley picked it up and threw it on a chair. Gude

commented that Hendley had broken his tablet, and “[t]hen she said,

‘That’s all you give a f**k about?’ And she went into a rage. . . . [S]he

cocked the gun that she had. . . . And then the gun jammed.” As

Hendley’s gun jammed, Gude retrieved his gun from the chair, and

Hendley unjammed her gun. According to Gude:

A: Then she raises the gun at me and as she raises the
gun, then I fire.
Q: One time?
A: One time, yes.
Q: Are you aiming or are you just firing?
A: No, I just grabbed the gun and point it towards her
and fire.
…
Q: Are you even aiming or you’re — I mean, are your
eyes closed? Do you know what — or you just —
A: No.
Q: — pulled the trigger?
A: No. I just pulled the trigger.
Gude testified that he was about three feet away when he shot

Hendley. Gude hid his gun under a chair because he was not

supposed to possess it as a convicted felon, and he disposed of it in a

dumpster after being released on bond.

5
Gude testified that when he shot Hendley, he feared for his life.

When asked, “[a]t that point in time, did you have any reason to

believe that you had to shoot Ms. Hendley to protect yourself?” Gude

replied, “Yes. Most definitely.” Gude further agreed that “it was

either [him] or her” and that he did not have “any choice”; he

testified, “I knew she was going to pull that trigger.” Gude

acknowledged that he initially lied to the police about what

happened because he “didn’t think they would believe it was self-

defense.” Near the end of his direct examination, when asked,

“When you raised that gun and pointed it at Ms. Hendley, did you

feel you had any choice?” Gude replied, “No. . . . Because it was — it

was either me or her.”

The medical examiner who performed Hendley’s autopsy

determined that she died from a single gunshot to the front of her

head, fired from no less than three feet away. A GBI firearms expert

testified that it is possible to fire a .380-caliber bullet from a 9-

millimeter gun, so “out of an abundance of caution,” she compared

the .380-caliber bullet removed from Hendley’s head and a .380-

6
caliber shell casing found at the scene with the 9-millimeter

handgun also found at the scene and determined that the gun

neither fired the bullet nor ejected the casing. The actual murder

weapon was never recovered.

1. Gude contends that because he was charged with aggravated

assault “by shooting” Hendley under OCGA § 16-5-20 (a) (1),3 and he

was sentenced on felony murder predicated on that aggravated

assault, the trial court plainly erred by failing to instruct the jury

that, to be guilty of aggravated assault, Gude must have

“[a]ttempt[ed] to commit a violent injury,” and, to the contrary,

instructed the jury that “[i]t is only necessary that the evidence

show, beyond a reasonable doubt, that the defendant intentionally

committed an act that placed the alleged victim in reasonable fear

of immediately receiving a violent [in]jury” — an uncharged method

3 Count 2 of the indictment (felony murder predicated on aggravated

assault) alleged that Gude, “while in the commission of the offense of
Aggravated Assault, a felony, did cause the death of Nyyokokie Hendley, a
human being, by shooting said person,” and Count 4 (aggravated assault)
alleged that Gude “did make an assault upon the person of Nyyokokie Hendley
with a deadly weapon, to wit: a handgun, by shooting said person.”
7
of committing aggravated assault.4

As Gude recognizes on appeal, because he did not object to the

instruction at trial, his challenge is reviewed for plain error only.

See OCGA § 17-8-58 (b). “Under plain error review, we will reverse

the trial court only if the alleged instructional error was not

affirmatively waived, was obvious beyond reasonable dispute, likely

affected the outcome of the proceedings, and seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” Cato

v. State, 304 Ga. 496, 498 (2) (820 SE2d 41) (2018) (citation and

punctuation omitted).

The alleged instructional error was not affirmatively waived.

4 The trial court charged the jury:

A person commits the offense of aggravated assault when
that person assaults another person with a deadly weapon. To
constitute such an assault, actual injury to the alleged victim need
not be shown.
It is only necessary that the evidence show, beyond a
reasonable doubt, that the defendant intentionally committed an
act that placed the alleged victim in reasonable fear of immediately
receiving a violent [in]jury.
The State must also prove as a material element of
aggravated assault, as alleged in this case, that the assault was
made with a deadly weapon. A firearm, when used as such, is a
deadly weapon as a matter of law.

8
And we will assume without deciding that the trial court committed

obvious error in instructing the jury on a method of aggravated

assault not charged in the indictment. See Cato, 304 Ga. at 498 (2).

But Gude has not met his burden of showing that the error likely

affected the outcome of the proceedings. That is because, as our case

law repeatedly has made clear, charging the jury on a method of

committing a crime not charged in the indictment does not likely

affect the outcome of the proceedings when the jury is also

instructed — as it was here — that “[t]he burden of proof rests upon

the State to prove every material allegation of the indictment and

every essential element of the crime charged beyond a reasonable

doubt” and provided with a copy of the indictment during

deliberations.5 See, e.g., id. at 498-99 (2); Simpson v. State, 302 Ga.

875, 877 (2) (808 SE2d 718) (2017); Faulks v. State, 296 Ga. 38, 38-

39 (2) (764 SE2d 846) (2014); Johnson v. State, 295 Ga. 615, 617-18

(2) (759 SE2d 837) (2014); Flournoy v. State, 294 Ga. 741, 744 (2)

5 The trial court further instructed the jury that “[t]he indictment and

the plea form the issue that you are to decide in this case.”

9
(755 SE2d 777) (2014); Williams v. Kelley, 291 Ga. 285, 286-87 (728

SE2d 666) (2012).6

Moreover, under the circumstances of this case, it is highly

unlikely that the jury convicted Gude of felony murder predicated

on aggravated assault without a finding that Gude intended to shoot

Hendley because it is undisputed not only that Gude actually shot

and killed her, but also that Gude’s defense at trial was that he shot

Hendley in self-defense, on which the jury was charged.7 See Cato,

304 Ga. at 498-99 (2) (reasoning that “the context of the instructions

6 We have previously explained that prior holdings on jury instruction

issues that were not related to the Evidence Code were not abrogated by the
enactment of Georgia’s current Evidence Code in 2013. See Rawls v. State, 310
Ga. 209, 218-19 (4) (a) (850 SE2d 90) (2020) (“We have explained many times
that we look to federal case law for guidance when a provision of Georgia’s
current Evidence Code mirrors a federal rule of evidence. But Renner’s holding
was about jury instructions, not about the admission or exclusion of evidence.”)
(cleaned up).

7 Despite Gude’s somewhat vague response when asked whether he was

aiming at Hendley, Gude testified specifically: “I just grabbed the gun and
point[ed] it towards her and fire[d]”; that he “[m]ost definitely” had reason to
believe that he “had to shoot Ms. Hendley”; and that he did not have “any
choice” when he “raised that gun and pointed it at Ms. Hendley” because “it
was either me or her.” Moreover, Gude’s counsel argued in closing: “It’s always
been self-defense. It’s just that in order to defend himself, he ended up having
to kill her by shooting. . . . He intended to kill her when he shot her. Yeah,
that’s right. . . . He had to kill her. . . . He had to defend himself.”
10
made the juror confusion suggested by [appellant] even more

unlikely,” where he was “charged with felony murder, the jury was

properly instructed on felony murder, and there was no dispute that

[the victim] died as a result of being shot (not as a result of being

placed in fear),” meaning there was “no likelihood that the jury, in

convicting [appellant] of felony murder, thought that the aggravated

assault on which that charge was premised merely put [the victim]

in reasonable apprehension of immediately receiving a violent

injury”); see also Johnson, 295 Ga. at 618 (2); Patel v. State, 278 Ga.

403, 407 (5) (603 SE2d 237) (2004).

Despite this authority seemingly foreclosing Gude’s challenge,

he argues that the reversal of the appellant’s aggravated assault

conviction in Talton v. State, 254 Ga. App. 111, 112-13 (1) (561 SE2d

139) (2002), based on a similar charging error should control here.

But aside from the Court of Appeals’s ruling in Talton not being

binding on this Court, Ga. Const. of 1983, Art. VI, Sec. V, Par. III;

Rollf v. Carter, 298 Ga. 557, 559 (784 SE2d 341) (2016), Talton is

also distinguishable on its facts. There, the evidence at trial was that

11
Talton threatened the victim with a gun, a friend tried to intervene,

and the gun fired accidentally in the scuffle, hitting the victim in the

toe. Talton was charged with aggravated assault “by shooting” the

victim and not felony murder because the victim was not killed. But

the trial court instructed the jury that it could find Talton guilty if

he put the victim in immediate apprehension of receiving bodily

injury. The Talton court reasoned that because the evidence

presented in that case allowed the jury to find that Talton pointed

the gun at the victim before the scuffle but never intentionally shot

him, it was reasonably likely that the charging error affected the

outcome of the trial. Here, by contrast, the jury found Gude guilty of

felony murder, which necessarily required a finding that Gude killed

Hendley by shooting her, and there was virtually no chance that the

jury based that finding on an intent to merely place her in fear of

being shot, rather than an intent to shoot her, as we explained

above. See Patel, 278 Ga. at 407 (5) (explaining that because Patel

“was charged with felony murder predicated upon an aggravated

assault[,] [i]t follows that, unlike Talton, the jury could not convict

12
defendant by simply showing that he pointed a pistol at the victim;

of necessity, it had to find that defendant shot the victim”). Gude

therefore has not shown that the charging error likely affected the

outcome of the proceedings. Accordingly, Gude has not shown plain

error warranting reversal. This enumeration of error fails.

1. Gude also asserts that his trial counsel rendered

ineffective assistance by failing to object to the erroneous

aggravated assault instruction. This claim, too, fails.

To succeed on a claim of ineffective assistance of counsel, Gude

must show both that his counsel’s performance was deficient and

that such deficiency prejudiced his defense. See Strickland v.

Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984). To establish prejudice, Gude “must prove that there is a

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

result of the trial would have been different.” Bates v. State, 313 Ga.

57, 62 (2) (867 SE2d 140) (2022). And if Gude fails to make a

sufficient showing on either the deficiency or the prejudice prong,

we need not address the other prong. See Washington v. State, 313

13
Ga. 771, 773 (3) (873 SE2d 132) (2022).

Because Gude has not shown that the charging error likely

affected the outcome of the proceedings under plain-error review, as

explained in Division 1, he also cannot show a reasonable probability

that but for his counsel’s failure to object to that error, the result of

his trial would have been different. See Hampton v. State, 302 Ga.

166, 168-69 (2) (805 SE2d 902) (2017) (observing that the harm

element of plain error and the prejudice element of Strickland are

equivalent). Gude’s ineffective assistance claim fails.

Judgment affirmed. All the Justices concur.

14
Decided November 5, 2024.

Murder. DeKalb Superior Court. Before Judge Irwin, Senior

Judge.

Gerard B. Kleinrock, for appellant.

Sherry Boston, District Attorney, Deborah D. Wellborn,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Michael

A. Oldham, Clint C. Malcolm, Senior Assistant Attorneys 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: November 5, 2024

S24A1356. GUDE v. THE STATE.

MCMILLIAN, Justice.

Appellant DeRon Edrias Gude was convicted of felony murder

and other charges in relation to the shooting death of Nyyokokie

Hendley. 1 On appeal, Gude argues that the trial court committed

Hendley died on October 11, 2016. On January 25, 2018, a DeKalb
1

County grand jury indicted Gude for malice murder (Count 1), felony murder
predicated on aggravated assault (Count 2), felony murder predicated on
possession of a firearm by a convicted felon (Count 3), aggravated assault
(Count 4), possession of marijuana with intent to distribute (Count 5),
possession of a firearm during the commission of a felony (Count 6), and
possession of a firearm by a convicted felon (Count 7). At a trial from December
17 through 21, 2018, the trial court granted Gude’s motion for a directed
verdict of acquittal on the marijuana charge, and the jury found Gude not
guilty of malice murder but guilty on all the remaining counts. The trial court
sentenced Gude to serve life in prison for felony murder predicated on
aggravated assault, plus a consecutive five years for possession of a firearm
during the commission of a felony; the other counts were vacated by operation
of law or merged for sentencing purposes. See Dixon v. State, 302 Ga. 691, 698
(808 SE2d 696) (2017) (“[W]hen a merger error benefits a defendant and the
State fails to raise it by cross-appeal, we henceforth will exercise our discretion
to correct the error upon our own initiative only in exceptional
circumstances.”).
plain error in its jury charge on aggravated assault and that his trial

counsel rendered ineffective assistance by failing to object to that

instruction. For the reasons that follow, we affirm.

The evidence presented at trial showed the following. Gude

had begun dating Hendley a little more than a month before her

death. On October 11, 2016, at 9:41 p.m., Gude called 911 from his

home and told the operator that he’d “like to report a shooting,” “[i]t

was a fight and the gun went off,” and Hendley landed on the gun

after being shot. Officers responded, and Gude directed them where

Hendley lay, dead from a gunshot to the head. Officers recovered a

9-millimeter handgun belonging to Hendley near her feet, which

was loaded with .380-caliber rounds; live and spent .380-caliber

shell casings; and an unlocked safe containing marijuana and

money.

Gude filed a timely motion for new trial on December 26, 2018, which
was amended by new counsel on August 18, 2023. Following a hearing on
November 6, 2023, the trial court denied Gude’s motion for new trial, as
amended, on November 9, 2023. Gude filed a timely notice of appeal on
December 6, 2023, and the case was docketed to the August 2024 term of this
Court and thereafter submitted for a decision on the briefs.
2
Officers transported Gude to police headquarters where he

waived his rights under Miranda 2 and was interviewed by police.

Gude told officers that Hendley had called him earlier that day,

accused him of being with another woman, and threatened to shoot

him in the head. When he arrived home, Hendley slapped him and

put a gun to his head before she started damaging his property

inside the condominium. When Gude insisted Hendley leave, she

cocked the gun and pointed it at him, so he “rushed her with both

hands out hitting the hand with the gun and her arm at the time.

The gun went off, fell to the ground. [He] looked to see if she was

hit and then called 911 and waited outside for police.” Gude’s police

interview was audio recorded and played for the jury at trial. Gude

also provided a handwritten statement of this account to officers.

At trial, a female friend of Gude’s testified that Gude was at

her townhouse working on her car on the afternoon of October 11.

She noticed Gude’s phone ringing more than usual and that he

2 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966).
3
seemed upset, telling her that he needed to go home. At one point,

after looking at his phone, Gude told the friend that the surveillance

cameras at his home were disabled. She agreed to drive Gude home

and on the way, she stopped for gas not far from Gude’s home. Gude

got out of the car and said, “I have to go deal with this crazy b**ch,”