Murphy v. State - Appeal of Murder Conviction

In th e Supr eme C ourt o f Georg ia Decided: February 1 7, 2026 S25A142 9. MURPHY v. THE STA TE. L AND, J ustice. Dacha vous Murphy a ppeals his convictio ns for fe lony murde r and other crim es ste mming from the shooting de ath of Ashle y Brown at a night club in Augus ta. 1 On appeal, Mur phy argu es tha t the tr ial 1 The crim es took place on Se ptember 15, 2011. On Decem ber 13, 2011, a grand jury indicted Murphy for felo ny murder (Count 1), possessi on of a firearm during th e comm ission of a c rime (Count 2), criminal dam age to property in the first degree (Count 3), and aggravate d assault (Cou nt 4). After trial, on August 7, 2 014, a jury r eturned a verdict of gui lty o n all four cou nts of the indictment. Murphy was se ntenced to l ife i n prison without parole for Count 1; five years in prison for Count 2, to be ser ved cons ecutive ly to Count 1; ten years in prison for Count 3, to be served conse cutive ly to Count 2; and twenty years in prison for Count 4, to be served consec utive ly to Count 1. The charges against Mu rphy’s codefendant, Robert Wright, wer e dismissed b ased on Wright’s guilty p lea to a reindic tment on lesser charg es. Murphy filed a timely motion for new trial on August 13, 2014, which was amended twice through ne w counsel on March 4, 20 22 and March 10, 2022. After a series of hearings on Ma rch 16, 2022, May 17, 2022, and February 20, 2023, t he tr ial court denied the motion as ame nded on Oct ober 26, 2023, and Murphy filed a timely notice of app eal. The case wa s docketed to this Court’s August 2025 t erm and submitted f or a decision on the briefs. We note that t here was over a 9 year delay b etween the ti me Murphy’s NOTICE: T his opini on is subje ct to mo dificat ion res ultin g from motion s for re consi derat ion unde r Supre me C ourt Rule 27, the Court ’s recons ideratio n, and edit orial rev isions by t he Report er of Decisi ons. The ver sion of the opinion publis hed in the Advance Sheets fo r the Geor gia Report s, desig nated as th e “Final Co py,” will replace a ny prior version on the Court’s websi te and docket. A bound volu me of the Georgi a Reports will con tain the final a nd officia l text of t he opinio n.

2 court abus ed its discr etion by ex cludi ng certai n ev idenc e as inadmis sible he arsay, tha t the State viol ated Brady 2 b y failing to discl ose ev idenc e fav or able to Murp hy pri or to tri al, that the tria l court a bused its di screti on by den yin g Mu rphy’s reques t f or a cont inuance, and th at th e tri al cour t err ed in making c ertain charge s to th e j ury. Murph y als o a rgues that C oun t 4 of th e indi ctmen t fai ls t o compl y wi th du e p roces s an d th at tri al couns el rende red in effec ti ve assi stan ce for failing to call two witnesse s whose testimo ny would ha ve contradi cted th e testim ony of th e State’ s eyewi tnes ses. F or th e reas ons bel ow, w e aff irm Mu rphy ’s convic tions. 1. T he eviden ce p resen ted at t rial sh owed as f ollow s. Mu rph y initial motion for ne w trial was filed an d the time that the tr ial court ultimatel y ruled on Murphy’s motion as amended. While this delay m ay have at least in part be en the resul t of the multip le substitutio ns of counsel that took place prior to the trial c ourt’s rulin g on Murphy’s am ended motio n as well as dela ys resulting from the preparation of the trial transc ript, w e remind the participants in this c ase and others inv olved in the criminal j ustice system that “it is the duty of all those involved i n the criminal j ustice system, including trial courts and prosecutors a s well as defense co unsel and defendants, t o ensure that the a ppropriate pos t - conviction m otions are fi led, litigated, an d decided without un necessary delay.” Owens v. State, 3 03 Ga. 254, 25 8 (2018). 2 Brady v. Maryland, 373 US 83 (1963).

3 and his c odef endant, Robert Wr ight, we nt to C lub 5150 in Aug usta in th e ev enin g ho urs on S eptem ber 14, 2011. Sev eral memb ers of th e Daggett family also w ent t o Clu b 51 50 that same ev enin g. In the early m orni ng h ours of S ept ember 15, a fi ght br oke out on t he dan ce floor b etw een the Dagge tt family and a nother g roup of p eople from “Harr isbur g,” which include d Murphy. Secur ity broke up t he fight and clu b st aff f orced all pat rons to l eave the clu b. B rown, who w as at the club w ith f riends cele brat in g a birth day, was amon g th e patron s for ced t o l eave th e clu b. A securi ty guard for th e club witnessed Murphy leave the c lub and walk to a dark - col ored v eh icle, w here Mu rph y di splayed a firearm. Murp hy enter ed th e car, whi ch drove to the front o f th e club. E yewi tnesses testifi ed that Murphy, who wa s sitt ing in the passeng er’ s sea t, then fired se veral sh ots into t he crowd gather ed in the foye r of th e cl ub. One of those sho ts struc k Brown in the head; she d ied from her injur ies. On Sept ember 2 0, 2011, investigat ors inter viewed Mur phy. Alth ough inves tigato rs did not p lace Mu rph y un der arr est at that

4 time, they ad ministere d hi m Mi randa 3 rig hts, and Murph y agr eed to speak to inv estig ators. During the interv iew, Murphy admitte d that he went to Club 5150 wit h Wright on the night of the s hooting. He clai med t hat they left the cl ub togeth er, th at no one el se drov e with the m in the vehicle, and that neithe r he nor Wright fired shot s that night. Murphy a lso claime d at that time tha t he did not have any “beef or con fl ict” with “ any of the peo ple on th e oth er si de of th e fight.” Murph y was l at er i denti fied by tw o ey ewi tness es, Stan ley Curry and Dev in B asket, as the s hoot er. On Sept ember 2 3, i nves tigator s arr est ed Murph y an d rei nte rview ed hi m. Investigators re - administe red Miranda rig hts to M urphy, a n d Murph y agre ed to w aive th ose ri gh ts and speak to in vesti gato rs. Murphy again sta ted that he and Wr ight were the only p eople in Wright ’s car t hat night and t hat neit her of t hem fired sho ts. I n Dec ember 2011, t he lead inves tigator, Chris Langfo rd, began recei vin g lett ers fr om Murphy. I n January 2012, Lang ford 3 Miranda v. Arizona, 384 US 436 (1966).

5 again a dminist ered Mira nda rights t o Mu rphy; Murphy waive d them an d agr eed to spe ak to the inv estigat or. Th is tim e, Murp hy sta ted that he left Club 5150 with Roo sevelt Ellison, not Wright, in Ell ison ’s black C am ry or C oroll a, and that Elliso n “reach [ed] ove r with his r ight ar m and [s hot] behind him o ut the bac k passenge r window.” Murphy al so a cknow led ged th at th e fi ght a t Cl ub 5150 stemmed from a pri or disp ute. At tria l, Murphy ca lled Wright, Kevin Brown (“Kevin”), a nd Davari o Glov er as defens e witn esses. Wrigh t testi fied th at Mu rphy left Club 5150 with E llison, no t Wright, in Ellison’ s black To yota Camry. 4 Wrigh t left C lub 51 50 sep aratel y an d dr ove to E ll ison’s house, where he test ified that he saw Ellison wit h a gun in his waist band. Wright also testif ied that he saw Elliso n rem oving she ll casin gs from th e back seat of hi s C amry. Kevi n testi fied th at h e was at Ell ison ’s hou se aft er t he sh ooting 4 In his first two interviews with law enforcement, h owever, Wright stated that he left the club in his car wi th Murphy and that there was “no wa y that [Murphy] was the shooter b ecause [Murphy] left with [him]” and Wright couldn’t “be aroun d guns be cause [he w as] on probation at the time.” Wrigh t testified that he lied in these first t wo statements.

6 and t hat he saw Ellison w ith a 9m m gun. G lover, M urph y’s b roth er, tes tified t hat he was a t Ellison’ s house a fter the shooting, that he saw Ellis on wit h a 9 mm gun, and that he saw Ellis on “was hing his hands w ith gas[oline].” 2. Murp hy argues that t he tria l court abused i ts dis creti on by exclud ing hearsay test imony f rom G lover, Kevin, and Wright about Ellison’ s sta tements and Ellison’s phone ca ll with Wr ight in which he a dmitte d to shooting a gun of the ca liber t hat killed Bro wn the night of the incident giving rise to this case. Specif ically, Murphy argues that th is ev iden ce shou ld have be en adm itted unde r OCGA § 24 -8- 804(b)(3) (“Ru le 804(b)(3)”) as statem ent s agai nst i nteres t and under t he res idu al h earsay excepti on, O C GA § 2 4-8- 80 7 (“ Rule 807”). For the re asons that f ollow, w e concl ude th at th e tri al cour t did no t abuse its d iscret ion in excluding this evide nce, and we accord ing ly rej ect M urph y’s c onten ti ons. See Atkins v. State, 310 G a. 246, 25 0 (2020) (“[A] t rial cou rt ’ s decisio n whet her to admit or exclu de evid ence wi ll not be di stur bed on appeal ab sent an abu se of discre tion. ”).

7 On Octo ber 13, 201 1, while Wrig ht was in jail, Wright called Ellison, a nd Ellison a dmitte d responsib ility fo r shooting a handgun the night of Brown’ s deat h. Thi s call was record ed. Accord ing to Wright, E llison cla imed t hat he “let loose,” meaning shot, a 9mm handgun t hat ni ght and knew tha t a hand gun of tha t calibe r was res ponsible for Brown’s killing. Wr ight lat er testifie d that E llison was “ very conce rned” abo ut the incid ent, t hough he was “unsure” whe ther his gun had shot the bullets t hat kille d Brow n. I n t he recor ding, Elliso n ad mitte d to shooting t he nig ht Brow n was killed, but he claims that he was not the o nly perso n shoot ing that nig ht and t hat Murphy a lso had a gun. Langfo rd subs equently interv iewed Elliso n, and Elliso n admit ted tha t he was a t Club 5 150 t he night o f the sho oting b ut denie d firing his gun. Inst ead, Ellison cla imed tha t his c all with Wright was a “scheme ” because he wa s “friends with the m” and that Murphy and Wright were “ supposed to give him mone y.” Ellison invoked his Fifth A mendm ent rig ht against self - incrimina tion and did not testif y at t rial. Murphy s ought to adm it

8 the rec orded phone call bet ween Wright a nd Ellison in whic h Ellison admitte d to sh oot ing a gun of th e same c aliber th at kil led B rown th e nig ht of th e sh oot ing under t he h ear say excepti on for statem ents agains t inte rest purs uant to Rule 804(b)(3). During pretria l argum ent, the trial cou rt rul ed th at ev iden ce reg ard ing what Elli son told others, includ ing the ja ilhouse pho ne call, was ina dmissib le becaus e the re w ere n ot “ suffi cient foun dati onal f actors t o indi cat e an indic ia of reliab ility.” In its w ritten ord er denying Mur phy’s motion for n ew t rial, the tri al cou rt sto od by its earl ier ru li ng an d expla ined t hat Ellison’ s hears ay stat ements c laiming r esponsib ility for shoo ting a fire arm on the night of the cr ime were n ot s upp orte d by cor robo rati ng ci rcumst anc es th at cl earl y i ndi cated the trustw orthi ness of th ose st atem ents, a p reco ndi tion f or the admis sibility o f those stat ements under OCGA § 804(b)(3)(B) (“Rule 804(b)(3)(B)”). T he tri al court ’s o rder also ru led t hat th e st atemen ts were n ot admis sibl e unde r R ule 8 07, the resi dual he arsay exc eption, for th e same reas on. C onsi stent w i th thi s rul in g, the tri al cou rt also exclu ded sim ilar testi mony from K evi n an d Glov er t hat they he a rd

9 Ellison c laim re sponsib ility for s hoot ing a firear m that night. (a) Murphy f irst arg ues tha t Ellison’ s st atement s wer e admis sible unde r the hears ay e xcepti on fo r s tat ements ag ains t interes t. See OCGA § 24 -8- 804(b) (3). This arg ument fa ils. Under Rule 804(b)(3), a stat ement agai nst inter est is a n out of court s tat ement made by a pe rson who i s un avail abl e at tri al: (A) Whi ch a re ason able p erson in the d eclar ant ’ s positio n would ha ve made o nly if the per son believ ed it to be true becaus e, wh en m ade, i t was so con tra ry to th e de cla rant ’ s propri etary or p ecun iary i nte rest o r ha d so g reat a tenden cy to inval i date a clai m by the decl aran t again st anothe r or to exp ose th e d eclara nt to ci vil or c rimi nal liabilit y; and (B) Su pport ed by corrob orati ng ci rcu mstan ces th at clearl y indica te the trustwort hiness o f the st atement if it is offer ed in a cri m inal case as a statem ent th at ten ds to expo se the dec larant to cr iminal lia bility [.] Th ere is n o dispu te that E lli son w as un avail able t o testi fy at t rial becaus e he asserted his Fifth Ame ndment privile ge aga inst compel led sel f - incriminatio n and that asser tion was accep ted by the trial c ourt. Sheale y v. State, 308 Ga. 8 47, 8 52 (2020). We agr ee w ith th e t rial cou rt th at Ell ison ’s hears ay stat ements

10 appear to be ag ain st hi s in terest s ince th ey are, on th eir fa ce, admis sions of cri mi nal acti vi ty. We acco rdin gly agree w ith Murphy’ s argum ent th at su bse ction (A) o f Rul e 804(b)(3) is s at isfi ed. Because Ellis on’s hears ay s tat emen ts we re offer ed in a crimi nal cas e an d wou ld ten d to expos e him to cr imi nal liabil ity, subsec tion (B) ap plies to thes e stat emen ts and requ ires an anal ysi s of wh ethe r th ose sta temen ts w ere “ [s]u pport ed b y co rrobor atin g circum stan ces t hat clea rly i ndicat e th e t rustw orthi ness of the sta teme nt[s.]” O C GA § 24 -8- 80 4(b) (3)(B). The trial co urt is the gatek eeper for thi s type of evi denc e an d is tas ked w i th mak ing that determi nati on in the fi rst i nst an ce. We are th en t asked with asse ssing whet her the t rial court’ s decision is supported by any evide nce and dec iding whet her it abused it s discretio n when admit ting or excluding such e videnc e. S ee State v. Hamil ton, 308 Ga. 116, 12 1 (2020) (“W e review a trial cou rt ’ s evide ntiar y rulings for an abuse of d iscr etion.”). For the reas ons dis cussed below, we c oncl ude th at th e re is eviden ce in the reco rd sup porti ng the tri al cou rt’ s determ in ation

11 that El li son’s hears ay s tatem ents were not suppo rted by corrob orati ng ci rcum stan ces that cl earl y in dicate d the trus tworthine ss of those sta tements a nd that the trial cou rt di d n ot abus e its discr etion b y excluding those stat ements. We ha ve not p reviously had the o pport unity to consider t he trustw orthi ness requi rem ent of R ul e 804(b)(3)(B). B ecau se “ OCGA § 24 -8- 804 is th e cou nterp art t o R ul e 804 of th e F ederal Rul es of Evidenc e,” wh en w e consi der th e mean in g of Rule 804(b)(3) (B) ’s trustw orthi ness requir ement, we may “ con sider the deci sion s of feder al appel lat e court s, pa rticu larl y the d ecis ions of the Un ited States S uprem e C ourt and t he E leven th C ircui t, const rui ng an d app lying our rule ’ s f ederal cou nt erpar t.” 5 Bolling, 300 Ga. at 6 98 (footno te omitted). 5 Cases from the Un ited States Suprem e Court and the Un ited States Court of Appeals for the Eleventh Circuit decided prior to the effectiv e date of Georgia’s new Evid ence Code have precedential value because t he “ General Assembly was cryst al clear in conveying its intent tha t Georgia ’ s new Evidence Code was prima rily enacte d to adopt the Federal Rules of Evide nce... ‘ as interpreted’ by the f ederal appellate cou rts as of the effective date of the new Code.” State v. Almanza, 304 Ga. 553, 558 (2018). “ While still p ersuasive authority, any su bsequent fed eral appellate ca se law lack s the same precedential weight as cases before that date. ” Id. at 55 9 n.5.

12 In exa mining Federal Rule 804 (b)(3) (B) ’s trustwor thines s requir ement, th e Un ited S tates C ou rt of Ap peals f or the E leven th Circuit ha s de termined that “[i] n orde r for a decl arati on agai nst penal i nter est to be trus twor thy eviden ce, th e stat emen t mus t actuall y hav e bee n made by t he de cl arant, and it must af ford a basis for be lievin g th e tru th of t he mat ter ass erted.” United Sta tes v. Bagley, 537 F2d 1 62, 167 (5th Cir. 19 76) (emp hasi s added). 6 In determi ni ng w hether a he arsay stat emen t sough t to b e admi tted under F eder al R ule 80 4(b) (3)(B) is trustw orth y, cour ts may con side r the “t otality of ev iden ce in the … c ase” an d the ev id ence d evelop ed at tri al. United Sta tes v. R obins on, 635 F2d 36 3, 36 4 (5th Cir. 1981). See al so United State s v. US Inf rastruc ture, Inc., 576 F3d 1195, 1209 (11th Cir. 2 009) (determining th at a st atem ent is tru stw orthy where “it [is] unlikely, judg ing fro m the cir cumsta nces, t hat the s tateme nt was fa bricat ed” a nd that “the evi den ce pres ente d at tri al su pports 6 Decisions of the former United St ates Court of Appeals for the Fifth Circuit rendered before the close of business on Septe mber 30, 1981, are binding in the Eleve nth Circuit. See Bon ner v. City of Pricha rd, 661 F2d 12 06, 1209 (11th Cir. 19 81) (en banc).

13 the v eraci ty o f th e ou t - of - cour t stat emen t”); Uni ted Sta tes v. Thoma s, 571 F 2d 285, 290 (5th C ir. 197 8) (l ooki ng at eviden ce in th e record that “ind icate s the tru stw orthi ness of th e stat emen t” in add ition to not ing that the possib ility of fabr icatio n was “s light”). Murphy argue s that Ellison’ s state ments are suff icient ly trustw orthy purs uan t to Rul e 804(b) (3)(B) bec ause hi s phon e call with Wrigh t was reco rded an d be cau se th ree o ther peopl e – Kevin, Glov er, an d Ted S hell ey – would have te stified that Ellison also told them he was shoo ting tha t night. In esse nce, Mur phy’s ar gument is that th is hears ay ev iden ce is tru stw orthy be caus e sever al witn esse s claim ed th ey he ard E lli son m ake th ese s tat emen ts and bec aus e Ell ison ’s statem en ts to Wri ght were ev idenc ed by a rec ordin g. I n other w ords, Mu rph y argu es th at t he st atemen ts sh oul d hav e be en admitte d be caus e the evid ence th at the stat eme nts w ere ac tual ly made by Ellison is t rust worthy. Murph y’s f ocus on w heth er Ell ison ’s hea rsay s tate ments were act ually made by him is an incom plete anal ysis of wh at the t rial court may cons ider in d etermining whethe r Elliso n’s stat ement s are

14 admis sible. Here, no one has que stioned w hether Elliso n actua lly made ou t o f cou rt statem ents clai m ing to be one o f th e sho oters. Th e recor ding of his conver sation wit h Wright conf irms that he did in fact m ake at le as t one s ta tement to th is effe ct. T hat is n ot t he i ssu e that was dec ided by the tr ial co urt and is not the only inquiry und er Rul e 804(b)(3)(B). R ather, bec ause the State wou ld have n o way to cross - exami ne th e non - testi fyin g d eclaran t if thes e stat emen ts w ere admit ted, Rule 804(b) (3)(B) required th e t rial cou rt to asses s and decid e whethe r cor robo rating circu mstan ces cle arl y demonst rated the trustwor thiness of t he conte nt of the hea rsay statem ents bef ore they wer e admitt ed, i nclu din g wh ether the he arsay stat emen ts w ere fabr icat ed. Rul e 804(b)(3)(B) en trus ts th e tri al cou rt w ith the gatek eepin g rol e for the admi ssi on or exclu sion of thi s type of hears ay. Her e, th e trial court w as pres ented with confli cting eviden ce on the co ntrolling issue of t rustwor thiness, inc luding an admis sion by th e out of cou rt de claran t th at, when he admitte d to shoo ting, he lied in excha nge for the p romise of mone y. Given t his eviden ce, w e cannot say that the tria l court abused it s discre tion

15 when it conc luded that the hears ay s tatem ents wer e no t trustw orthy, and we rej ect Mur phy ’s argu ment that th e statem ent s should ha ve been a dmitt ed simply ba sed on the strengt h of the evide nce tha t Ellison ac tually ma de the m. 7 At trial, th e Stat e pointed to evidenc e sugge sting that Ellison fabr icated his involveme nt in the shoo ting at t he direct ion of Wright and Murp hy and that he d id s o in retu rn for the p rom ise of mon ey. Spe cifically, when inte rviewe d by Langf ord, Ellison claimed that his call with Wright w as a “s chem e” b ecaus e he wa s “f rien ds wi th th em” and t hat Mur phy and Wr ight were “supp osed to give him mo ney.” Ellison c laimed that Wright sent a lett er to Santrez H all “telling 7 We recognize that Murphy also points to other evidence of corroboration, such as Kevin ’s an d Glover’s proff ered testimony th at Ellison told them he was shooting, Wright’s test imony that Ellison was cleaning shell casings out of his c ar, Kevin ’s and Glover’s testi mony that E llison had a 9mm gun, and Glover’s te stimony that E llison was cleaning hi s hands with gasoli ne. While this evidence, if believed by th e trial court, may have supported a different ruling on t he admission of Elli son’s hearsay state ments, that does no t mean that the t rial court was req uired to accept this evidence and find that the content of the hears ay was in fact trust worthy. Rather, given the conflict in th e evidence on this point, includi ng eviden ce that Ellison was not in the car with Murphy at the time of the shooting, was not one of the shooters, and lied a bout his involvement in the shooting in ex change for the promi se of money, the trial court was authorize d to exercise its discretion and exclu de the hearsay.

16 [Ell ison ] what [he] was sup posed to say, so [h e] sai d it,” an d at the begin nin g of Wri ght’s r ecord ed ph one c all to Ell ison, befor e Ell ison got o n the p hone, Wr ight ca n be hea rd telling someon e nam ed B lack to tal k to H all t o l earn “what th e plan is.” Based on this evid ence, the tr ial court was authoriz ed to exerc ise its dis cretion a nd find that Ellison’ s sta tements were not suffic iently supp orted by corrob orati ng ci rcu mstan ces cl earl y i ndicati ng that they we re trustwo rthy. Additiona lly, Mur phy’s multiple sta tements to law enforc emen t were inconsistent wit h each othe r and we re incons istent with the ver sion of event s sugge sted by Ellison’ s hears ay s tateme nts, providing t he trial cour t with furt her reaso n to questi on th e ve racity of those statem en ts an d co nclu de that they were n ot su ppor ted by co rrob orat ing circum stan ces that “cle arly indica te” the ir trustwor thiness. In Murphy’ s fi rst two s tat ements to polic e, he cla ims he lef t the club with Wright and did not me ntion Ellison. In his third sta tement, wh ich occurred a fter ey ew itnes ses ident ified him as the shoote r in the passe nger side of a dar k - colo red

17 car, h e ch ange d his story and clai m ed he left the club with E llison, not Wr ight, and that he d id not have a gun. Elliso n, howev er, claime d that Murphy d id have a gun and tha t Ellis on was no t the only pe rson shoot ing that nig ht. Given this conf licting evidenc e, comb ined with Ellison’ s admissio n th at h e fa bricat ed th e ou t of c ourt statem ents in ex ch ange f or th e pr omi se of m oney, we conclud e that the tr ial court d id not abus e its discretio n in finding t hat Elliso n’s statem ents w ere not tru stw orth y and th eref ore not admissib le under Rule 804(b)(3)(B). 8 See United Stat es v. Tipton, 572 F. App ’ x 8 Further supp ort for our holding that the proper in quiry under R ule 804(b)(3)(B) consid ers the trustworthiness of the conte nt of the hearsay statements and no t just the strengt h of the evidence showing that th e statements were actually mad e is fo und in the Not es of the A dvisory Committee on Fed eral Rule 804(b)(3). See Al manza, 30 4 Ga. at 559 n.6 (“[A]lthough Adviso ry Committee Note s are not binding pre cedent and cannot change the plain meaning of th e law or rules, the y are highly persu asive (unlike ordinary l egislative hist ory).”). These Notes characterize the trustworthiness req uirement as “a requ irement preliminar y to admissibility” and state that “[t]he requirement of corr oboration shoul d be construed in such a manner as to effec tuate its purpo se of circumventing f abrication.” Simil arly, the Notes of the Ad visory Committee with respect to the 20 10 Amendment to Federal Rule 80 4(b)(3) state: “In assessin g whether corrob orating circumstances exist, some courts hav e focused on the credi bility of the witne ss who relates the hearsay s tatement in court. But the credi bility of t he witness who relates the statement is not a pr oper factor for the co urt to consider in assessing corrobora ting circumstanc es. To base admission or exclusion of a hearsay statemen t on the witness’s cre dibility would usurp the jury ’s role of

18 743, 748 (11th Ci r. 2014) (affirmi n g a tri al c ourt’s de cisi on to excl ude hears ay eviden ce un der F edera l Ru le 804(b)(3) bec ause th e decla rant w as “c ompl etel y un believ able”); Un ited St ates v. Be rry, 496 F. App ’x 93 8, 9 42 (1 1th Ci r. 2012) (affi rmin g th e trial cou rt’s exclus ion of an ou t of cour t de claran t’s s ta tement s as not clear ly corro bor ated be caus e he recan te d post - ar rest s tatem ent s abou t drug o wners hip in a fo llow - up int ervie w with po lice and “ a llowing multiple, inco nsistent statement s by an unava ilable wit ness could misl ead the j ury an d conf use the i ssu es ”). (b) Murphy a lso claim s that Ellison’s state ments should have been admi tted u nder Rule 80 7, th e residu al he ars ay ex cepti on. We conclu de tha t, fo r the s ame reason s the trial cour t did not ab use its discre tion in excluding this eviden ce un der Rule 804(b)(3), it did no t abus e its discr etion in find ing that this ev idence d id not poss ess the “guaran tees of t ru stworth ines s” r equ ired by Rul e 807. See OCGA § determining the cre dibility of testi fying witnesses.” As s hown by this langu age, the focus of the Rule’s trustwort hiness requirement is no t the veracity of the testifying witness w ho relays the hears ay in court but the trustwort hiness of the content of the h earsay statem ents themselves.

19 24 -8- 807 (requ irin g statem en ts to p osse ss “e qui valen t circum stan tial gu arant ees of tr ustw orthin ess” to quali fy fo r admis sion); S tat e v. Kenney, 315 Ga. 408, 415 (20 23) (“[A] c ourt m ust find t hat hear say sta tement s have guaran tees of trustw orthi ness [that ar e] equiv alent to those foun d i n the other sta tutory excepti on s to hear say set f orth in Rul es 803 and 80 4 befo re they can be admit ted unde r the r esidual e xceptio n.” (cleaned up)). Compare Kenneb rew v. S ta te, 317 Ga. 32 4, 33 5 (202 3) (concluding that tria l c ourt d id not abuse its discret ion in admitt ing evidence unde r Rule 807 wh ere, amon g other thi ngs, th ere “wa s no eviden ce p resen ted indica ting tha t [the de clarant] had any mot ive to fab ricate hi s statemen ts”). 3. Murph y arg ues that the tri al c ou rt erred in finding t hat the State did not viola te Brad y by fa iling to pr ovide him wit h excul patory evi dence. Specifically, Murphy a rgue s that the St ate’s failu re to p rovi de hi m wi th L angford ’s au dio - re cord ed in tervi ew with She lley, a s well as La ngford’s supple mental inter view note s from that inter view, constitu ted a Brady vio lation. Mur phy also

20 argues that, bec au se the State viol ated Bra dy, the tri al c ourt e rre d in denying Murp hy’s mo tion for a continuanc e to inve stiga te Shell ey’s st atem en t s. These claims fa il. Prior to trial, La ngford i nterv iew ed Shel ley, who c laim ed that Ellison t old him that both he and Murp hy were shoo ting at the time of Brow n’s de ath. Lan gford record ed his i nterv iew w ith S hell ey and provide d a s uppl emen tal repo rt o n the i nte rview to th e St at e. The State claim ed it did n ot have the repor t and di d n ot prov ide th e repor t in d iscove ry. Murphy argued that he w as u naware that th e State i nt erview ed Sh elley or that S hell ey h ad fa vora ble ev iden c e until the morning o f tria l. On Ju ne 3 0, 2 014 (more than a m onth befo re tri al), Mu rphy sent the State a witness lis t that included S helley’ s name. D uring a pret rial hear ing the morning of tria l, Murp hy’s counse l told the court t hat h e w anted to c all L angfo rd as a wi tness becau se h e “fou nd out … a T ed Sh ell ey was use d by the p oli ce … to t alk to Ro osev elt Ellison. ” Murphy calle d Langford as a witness during this pretri al hear ing, and Langfor d testifie d that S helley co ntacted him in

21 Octobe r 2012 f rom jail to let Lan gford k now th at he had in formati on abo ut a homicide. La ngford tes tified tha t he interviewe d Shelley in Octob er 2012, and Shelle y sta ted that Ellison had told him “ [Mur phy] an d th e othe rs h ad got ten i nto i t,” an d “M urphy was shoo ting at the time of the incide nt and advis ed that [Ellison] was shoo ting, as we ll.” Shelle y indica ted that the “ only rea son he kne w about [the s hooti n g] was becau se R oosev elt El li son tol d him.” Murphy reques ted a continua nce to spea k with Shelle y, and the Sta te argu ed th at Murp hy “k new h e was a w itnes s, and they h ad an op portunit y to spea k with him,” and “if the y had ta ken the opp ortunity to speak wit h him ... he co uld have to ld them abo ut this.” The State also c ontend ed t hat it h ad no i nf ormati on ab out Shell ey i n Lan gford ’s in vestig ati ve rep ort. T he tri al cou rt den ied Murph y’s moti on for a contin uan ce. (a) Mu rphy firs t clai ms th at th e State v iola ted Brady by n ot disclo sing She lley’s inter view or L angf ord’s n otes regar din g that inter view. To prevail on his Br ady cla im, Murp hy must prove that: (1) the Stat e posse ssed evi den ce favor able to the

22 defen dant; (2) th e def endan t did n ot poss ess the f avo rable evide nce and could not o btain it hims elf wit h any reason able d ili gence; (3) the S tate su ppres sed the favora ble evi den ce; an d (4) h ad th e evid ence been discl osed t o th e defen se, a reas on able proba bi lity exist s that th e out com e of th e tri al w ould h ave b een d iffer ent. Schof ield v. Palme r, 279 G a. 848, 852 (20 05). “ Evidenc e is not regard ed as ‘ supp ressed ’ by the govern men t when the de fendan t h as access to the evi dence bef ore tria l by the ex ercis e of reas onabl e diligenc e. ” State v. Jame s, 292 Ga. 44 0, 442 (20 13). “ The burden of proo f on thes e elements lies with t he defendan t,” and “[w ] e r eview a trial c ourt ’ s factual f indings re garding a Br ady claim fo r cl ear err or but revi ew th e co urt ’ s appli cati on of the l aw t o the facts de n ovo. ” Harris v. S tate, 313 Ga. 653, 66 4 (2022). Murphy ’s cla im fails becaus e he cannot est ablish tha t he could not hav e obt ained Shel ley’s s tat ements hi msel f with reasonabl e diligenc e. Here, M urphy’s trial counsel list ed Shelle y on a witnes s list tha t he emaile d to the Stat e on Ju ne 30, 2014. Shelley ’s exi stenc e was th erefor e kn own to Murp hy fo r more than a month pri or to t rial, and Mur phy could ha ve interv iewed She lley and ob tained t his

23 testim ony by ex erci sin g reason abl e dilig ence. Se e Swindl e v. Stat e, 274 Ga. 668, 67 0 (2002) (no Brad y vio latio n when the State did not disclo se the where abouts of a pote ntial alib i witness wher e the witnes s “was known t o Swindle a nd other defe nse witness es, and he apparen tly w as as av ailabl e to the de fens e as he w as to th e prosecu tion ”). See also James, 292 Ga. a t 442 (no Brady vio lation where co - defen dan ts received tw o p ages of a me dical exam iner’ s repor t and n ot th e thi rd pag e when th e repo rt w as cl early p agin ated, putt ing them o n notic e that a pa ge was mis sing, and wh ere thi rd co - defen dant obtained t he missing page). (b) Murph y als o argues that, as a res ult of t he allege d Bra dy violat ion, the tri al cour t sho uld have grant ed his motio n for a contin uan ce so t hat h e coul d in vestigat e Shel ley’s stat ements an d produ ce him as a wit ness at trial. “In con side ring a mot ion f or con tin uan ce, th e tri al cou rt en joys broad di scr etion and m ay gran t or refus e the moti o n as th e ends o f justi ce may re qui re.” Mann v. State, 30 7 Ga. 696, 70 3 (20 20). “ To obtain a new trial based upon the den ial of a moti on f or a

24 contin uan ce, an appel lant m ust show not onl y a clear a buse of discre tion on t he part of the tr ial court in de nying the mot ion but also th at he was harm ed by that deni al.” Id. Here, Shelle y was known to Murphy for more than a mon th pri or to tr ial, and Murp hy could h ave easily inves tigate d wha t he kn ew abou t th e case pri or to trial. Give n these fact s, we can not say that the tri al court abuse d its discre tion in d enying Mur phy’s request for a continuanc e. See Mann, 307 Ga. at 703 – 04. Acco rdingly, this enumera tion is witho ut merit. 4. Murph y arg ues that the tri al c ou rt erred in in s t ructing the jury that “[p]r esen ce, comp anion shi p and conduc t befor e and afte r the of fense are ci rcum stanc es fro m wh ich on e’s parti cip ation and crimina l intent may be inferr ed.” This enume rat ion is without merit. W e revi ew prop erly preserv ed ch allen ges to j ury instruc tion s de novo. See C ampbell v. S tate, 320 G a. 333, 347 (2024). Murp hy object ed to the prese nce and com panionship ins truc tion b oth a t the charge conf erenc e and af ter the instruct ion was given to the jur y by the trial cou rt, arguing that t he instr uctio n, as given, wa s

25 incons istent with the p atte rn cha rg e on me re p rese nce al so gi ven by the cou rt. M urph y arg ues that the co rrec t legal th eory i s as fol lows: It is true mere presen ce at th e scene of a crime, even coup led with k nowledge and approva l, is insuf ficient t o convi ct on e of bei ng a part y. H owev er, p resen ce, compan ion shi p, an d con duct befor e an d af ter the offen se are ci rcum stan ces fr om wh ich on e ’ s partic ipat ion in the crimina l intent may be infer red. A per son will not be pre sumed to ac t with crim inal inte ntion, but the trie r of fact s may find suc h intentio n upon c onsidera tion of the words, con duct, dem eanor, m oti ve, an d al l oth e r circum stan ces c on nected wit h the act for which the accus ed is pros ecu ted. A t t rial, t he co urt gave the following instruc tions r eleva nt to intent: This def enda nt will not be pr esumed to have acted wit h crimina l intent, but yo u may find suc h intent, or the absen ce of it, up on a con sider ati on of w ords, c on duct, demean or, m otive an d othe r cir cum stances conn ecte d with the ac t for whi ch th e accus ed is bei ng prose cuted. Every p ers on is pr esumed to be of sou nd m in d and discr etion, but th is p resumpt ion may be rebut ted. Y ou may i nfer if you wi sh to do so t hat th e ac t of a per son of soun d min d and di screti on ar e the p roduc t of th at per son ’ s will, and a person of s ound mind and discret ion intends the natu ral and prob able c onse que nces of th ose a cts. Whethe r or n ot y ou make any s uch i n feren ce or i nfe ren ces is a ma tter sole ly within your discre tion.

26 If o ne intentio nally comm its an unlawf ul act, yet the act harme d a vict im other t han the one int ended, it is not a defe nse tha t the def endant d id not int end to harm the actual p erson injured. Presen ce, compa ni onsh ip and condu ct befo re an d aft er the of fense are cir cum stanc es from whi ch one ’ s part icipat ion and crim inal intent may be infe rred. The tr ial co urt later g ave the following instr uctions o n mere presen ce and ass ociati on: A ju ry is n ot aut horiz ed to fi nd a person wh o is merel y presen t at th e sc ene of the com miss ion o f a cri me at th e time of i ts pe rpe tration gu ilty of consen t in con cu rren t with the commission o f the crime unle ss the evidenc e shows beyon d a reas onabl e d oubt t hat s uch p ers on commi tted th e alleg ed crime, hel ped in the actu al perpet rati on of th e cri me, or p arti cipat ed i n th e c rim inal endeav or. A ju ry is n ot aut horiz ed to fi nd a person wh o is merel y associ ated w ith other pers ons inv olved i n th e cr imes, involve d in the c ommissio n of a crime, guilty o f consent in or con curr ence in th e comm issi on of a crime u nles s th e eviden ce show s beyond a reas ona ble doub t th at su ch person help ed i n th e actu al perp etrati on o f th e cri me o r parti cipat ed in t he c rimi nal endea vor. The inst ructio ns given by the tr ial court do not mater ially dif fer from thos e which Murp hy claims should have been given a nd do not

27 consti tut e suffi cien t grou nds f or r eversal. Although t he tri al cou rt did no t give the instr uctions in t he order adva nced by Murphy, t hat is n ot groun ds for a n ew t rial, at leas t abs ent a sh owi ng that the order i n wh ich they were gi ven r ender ed the i nstru c tions errone ous. See Pruitt v. State, 282 Ga. 30, 33 (20 07) (rej ectin g appel lant ’s challe nge to the “orde r in whi ch the t rial cou rt gav e cert ain ju ry instr uctions ”). Moreov er, thes e jury i nstru cti ons ar e no t contrad icto ry. In Pruitt, The tri al c ourt charg ed th e jury th at a def endan t ’ s mere presen ce at the sc ene of the com mis sion of a crim e di d not autho rize f inding the defend ant guilty u nless t he eviden ce e stabl ish ed beyon d a rea sonabl e d oubt that the defen dant commi tted the crim e, he lped i n the commi ss ion of the c rime, or pa rtici pate d in the crimina l ende avor. The trial c ourt then in forme d the jury of th e el ements of the variou s cri mes the de fendant s were cha rged with commi tting, and ther eafte r ins truct ed th e ju ry that part icipat ion in t he cr iminal inte nt could be inferr ed from presen ce, c ompa nion shi p, and co ndu ct befo re an d aft er the co mmission of the offe nses. 282 Ga. at 33. Al though t he appe llant in Pruit t argued that t hese jury in structi on s were “cont radi ctory” an d “in comp rehen sibl e,” thi s Court h eld th at t he two ch arg es w ere “accu rat e stat emen ts of l aw

28 and ar e not con tr adict ory. ” Id. As in Pruitt, while these ch arg es “are complem ent ary a nd are o ften state d toge ther as a si ngl e prin cipl e of law,” t heir se para tion does n ot m ake “the resu lti ng ch arge ‘incom preh ensi ble.’” Id. Murphy also argues th at th e tri al cou rt m issta ted t he pr esenc e and co mpanio nship instr uctio n. Although the State req uested t hat the jury be cha rg ed that “[p] res ence, comp ani onshi p and con duc t befor e and af ter t he offen se a re ci rcums tances f rom wh ich on e’s parti cipati on in the cr iminal inte nt may be inf erred,” the trial cou rt inste ad gave the inst ruct ion that “[p]res ence, com pan ions hip and conduct befo re a nd aft er th e offe nse ar e cir cumst ances from whi ch one’s parti cip ation and crimin al i ntent may b e infer red.” “[C] rim inal int ent may be i nferr ed fr om p resen ce, compan ion shi p, an d condu ct b efore, durin g, and a fter the offens e.” Baker v. State, 320 G a. 15 6, 161 (2024) (cit ation a nd p unctu ation omitted). Thus, e ven t hough the trial cou rt did not use e xactly t he same lan guag e a s was r eque sted by th e Sta te, the ch arg e as gi ven did no t misstate the law. Mor eover, t he trial court al so inst ruct ed

29 the ju ry that M urphy “wil l n ot be presu me d to have a cted w ith crimina l intent ” but the j ury may “f ind such int ent, or t he absence of it, u pon a cons ider ation of w ords, condu ct, d eme anor, moti ve and other ci rcu mstan ces connec ted wi th the act for wh ich the a ccused is being prosecu ted.” The tri al cour t also ad equa tel y in structed the jury on the Sta te’s burd en to p rove Mu rphy gui lty bey ond a reason able d oubt. This enumer ation therefor e fails becaus e, as a whole, the jury inst ructions adequate ly instructe d the j ury on intent. See Pruitt, 2 82 Ga. at 33. 5. Murphy argues that the trial court err ed in denying his motion for a di rect ed ver dict as t o C ount 4 of t he i ndi ctment be cause it fa ils to ide ntify the v ictims of the offe nse. This e numeratio n fails. Count 4 o f the indict ment alleges that Murph y “ di d make an assa ult upon sever al individua ls lea ving Club 5150 … with an unknown ty pe hand gun, a d eadly w eapo n, by fir ing the ha ndgun at Club 51 50 as the ind ividuals we re lea ving the club. ” At trial, Murph y fil ed a m otion f or di recte d v erdic t as to thi s c ount, arguing that it was defi cien t bec ause it fai led t o “s tat e any parti cula r peo ple

30 [that] were shot at. ” The t rial cou rt denied the m oti on. On app eal, Murph y argu es t hat th e tri al c ourt erred in d enyi ng th at mo tion beca use Co unt 4’s failur e to id entify individual s tha t Murphy alleg ed ly assaul ted do es not adeq uatel y in form hi m of th e natu re of the cha rge again st h im for doubl e j eopard y pu rposes. Murphy ’s cla im fails, h owever, because “a m otion f or dir ected verdic t of acqu ittal is not the p rop er way to c ontes t th e suf ficien cy of a n indictm ent. A moti on fo r dir ected ve rdic t of a cqu ittal address es the s ufficienc y of the evidenc e, not the s ufficienc y of the underlying indict ment.” Adkins v. State, 279 G a. 424, 426 (2005) (clea ned up). Thus, the tria l court did not err in de nying Murphy ’s motio n. 9 See id. (holding that a motion for a d irected verdi c t was n ot the approp riat e way to ch allen ge an in dictm ent tha t w as all egedl y 9 At trial, Murphy’ s counsel also moved for a dir ected verdict as to Count 4 of the indictmen t because “there i s insufficient evide nce.” On appeal, however, Murphy challenges on ly the trial court’s denial of his motion bec ause the indictment fails “to adeq uately inform Murphy o f the nature of the charge against him.” Thus, we decline to address wh ether the trial court err ed by denying Murphy’s motion for a directe d verdict as to Cou nt 4 on the basis that the evidence was in sufficient to sup port a conviction o n that Count. We also note that Murphy did not file a pretr ial special demurr er to ch allenge the sufficiency of this C ount of the indic tment.

31 insuffic ient b ecause it failed to identify vic tims by name). 6. Finally, Murphy argue s that his tr ial co unsel rende red cons titutio nally def icient as sista nce by failing to call t wo witne sses, Phi llip Korte and Tav ares J ones, to testif y that the shooter was in a white c ar becau se thei r t estim ony woul d hav e cont radic ted th e testim ony o f the Stat e’s ey ewi tnes ses, who identified M urphy as the shoot er from a dark - colo red ca r. For the reason s that fol low, we disag ree. A defe ndant cla iming ineffe ctive ass istance of counsel mus t prove d efici ent perf orman ce by his counsel an d res ul ting prejud ice. See Strick land v. W ashingto n, 46 6 US 668, 687 (1984). To prov e defici ent p erform an ce, a defen dant must d emon stra te th at “c oun sel made e rrors s o seri ous that cou nsel was not fun ction ing as th e ‘couns el’ g uaran teed the defen dan t by the S ixth Amen dment. ” Id. This re quire s Murphy to “ove rco me the stron g presu mpti on th at couns el ’ s pe rfor mance fell wit hin a wid e rang e of reason abl e profess ion al con duct, and th at coun sel ’ s decisions were made in the exerci se of reas on able pro fessi ona l judg ment. ” Wilson v. Stat e, 313

32 Ga. 319, 322 (202 2) (ci tati on and pu nctu ation omitt ed). “ Impor tant ly, i n th e abs ence o f ev iden ce to t he c ontra ry, counsel ’ s decisi ons a re pr esumed to b e strat egic an d th us i nsu ffici ent to suppor t an inef fect ive assis tance of c oun sel cl aim.” Id. (citatio n and punct uation o mitted). “If eit her Stri ckland p rong is no t met, this Court n eed n ot exam ine th e oth er pron g.” Palm er v. State, 303 Ga. 810, 8 16 (2018). During the hear ing on Mur phy’s m otion f or new t rial, Mur phy ’ s tria l counsel testi fied th at, during d iscover y, he lea rned tha t Korte told l aw en forc emen t tha t the sh ooter was in a w hi te car. Murphy’s trial cou nsel also testifi ed th at he learn ed th at Jones likewise s aid that th e sh ooter was i n a w hite car. Murphy ’s tria l counsel te stif ied that he wan ted t o “ focus ” on the de fense t heory that “t he gun was being he ld by a dif ferent ha nd” and th at he w as “tryi ng to focu s th e juro rs [’] at tention on t he angle of Roos evelt E l li son be cause … [he] bel ieve [d] t hat was t he bes t.” Trial c ounse l fu rther testified that he t ried to “keep the jury ’s atten tion on fa cts th at a re imp orta nt, an d al so n ot to call peopl e th at

33 may le ave me holding it.” Trial counse l acknowled ged that testim ony that the s hoot er’s car was w hi te was “cont radic tory ” to testim ony th at it was black or d ark - col ore d, but stated that “ we alway s hav e to strat egi cally deci de what you ’ re goi ng to t ry to focu s the jur y ’ s atten ti on on.” “[T] he dec ision of whe ther to ca ll a witne ss to tes tify at trial is a matt er of tri al strat egy and t acti cs, an d su ch a stra tegic and tacti cal deci sion can not be deemed defici ent perfo rm ance un less th e decisi on is s o unr eason able th at no comp eten t at tor ney w oul d have made it un der si mil ar cir cumst ances. ” R obert s v. St ate, 29 6 Ga. 719, 724 (2 015) (cit ati on and punctuat ion omi tted). Her e, tri al c ouns el testifie d that h e mad e the s trat egi c decisi on t o focu s on the de fens e theo ry that Ellison, not Murp hy, was t he sh ooter an d beli eved tha t to be a stron ger d efens e than the argu ment t hat th e sh ot cam e from a whi te car, n ot a dark - col ored ca r, as pres entin g both defen ses might dis credit the defense and confuse t he jury. We can not say th at trial c oun sel’s s trat egy wa s obj ecti vel y unreas onabl e, e speci all y in light of Murphy’ s own statem ents to invest igator s that he left the

34 club wit h Ellison in a dark - colored vehi cle such that tes timony t hat the sh oote r rode in a w hite car may v ery wel l h ave disc redit ed Murph y’s pri mary defen se. Accor dingly, Murphy has not demons trat ed that his trial co unsel’s p erformanc e was defic ient, and his cla im of ineffe ctive as sistan ce o f coun sel ther efor e fai ls. 7. Citing State v. Lane, 308 Ga. 10 (2020), Murphy ar gues that, “in weighi ng the pre judicia l effec t on Murphy ’s tr ial, tria l counsel’s defici ency is to b e consi dere d cumu lati vely with any errors by th e trial c ourt. ” “In con sideri ng a claim of cumu lati ve er ror, w e eval uat e only the eff ects o f matt ers det ermi ned to be erro r, no t the cu mul ativ e effect o f non - e rrors. ” O’ Neal v. State, 316 G a. 264, 2 71 (2 023). Because none of Mu rphy’s claims of er ror hav e succ eeded and h e h as not sh own th at his couns el p erforme d defi cien tl y, “ther e are no errors to aggreg ate, and h is cl ai m of cum ulati ve err or also fai ls.” Id. Judgment affirmed. All the J usti ces c oncur.