Small v. State - Malice Murder Conviction Affirmed

In th e Supr eme C ourt o f Georg ia Decided: Ma rch 3, 2026 S2 6A 0113. S M ALL v. THE STAT E. M C M I LLIAN, Justice. Appe llant Grego ry Sm all was conv icted of mali ce m urder an d othe r charge s in co nnectio n with the shoot ing deat h of Y voris Snelling. 1 On ap peal, Smal l, w ho i s proce edin g pr o se, a rgues for 1 Snelling died on October 7, 2 022. On Jan uary 12, 2 024, a Fulton County grand jury re - indicted S mall for malice murder (Count 1), fel ony murder (Count 2), aggravated assault with a dea dly weapon (C ount 3), possession of a firearm d uring the co mmission of a felony (Co unt 4), and terroristic threats (Count 5). (The original indict ment contained an erroneous date.) At a trial hel d from January 29 through 31, 2024, a jury found Small guilty on all counts. On February 13, 2 024, the trial court sentenced Smal l to serve life in prison f or malice murder, p lus two consecuti ve five - year terms t o serve for possessio n of a firearm dur ing the commissio n of a felony and terroristic threats; the aggravate d assault count merg ed with the malice murder conviction, and the felony mur der count was vacated by op eration of law. Small filed a ti mely motion for new trial on February 9, 2 024, which was amended by new counsel on Fe bruary 7, 2025. F oll owing a hearing on Marc h 27, 2025, at which only argum ent but no new evidenc e was presented, the tria l court denied Small’s motion for ne w trial, as ame nded, on April 22, 2025. Through counsel, Small filed a timely notice of ap peal the next day, an d the 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 Cour t’s reco nsiderat ion, and editorial revisions by th e Reporter of Decisions. The versi on of the opinion publis hed in the Advance Sheets fo r the Geo rgia Repo rts, desi gnated as the “Final Copy, ” will r eplace an y 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 the f irst t ime that his cons titutio nal due proce ss right s were violat ed becaus e he w as n ot form ally arr aign ed prio r to t rial an d tha t hi s tria l counse l render ed co nstitutiona l ly ineffect iv e assist ance by failing t o info rm Sm all tha t he ha d a rig ht to an arraig nment a nd to appeal base d on not b eing arraig ned. We affi rm. 1. The detail s of t he evi denc e pres ented at tri al a re not relevan t to Small ’s cl aims on ap peal, but in su mmary, the evid enc e showed that afte r Ti a Sanders brok e u p with Smal l for bein g abus ive and mo ved in with Sne lling and b egan dat ing him, Sma ll repe atedly texted and cal le d Sande rs mak in g th reats, say in g that h e woul d s hoot a nd kill Snelling. On the m ornin g of Octo ber 7, 2 022, afte r Snelling e xited his home to go to wor k, Sand ers hear d multip le gunshot s and looke d outsid e to see Small’ s white Do dge Challe ng er case was docketed in this Court as Case No. S25A1121. B ecause Small desir ed to represent hims elf on appeal, this C ourt granted Small ’s motion to r emand for the trial court to conduct a heari ng pursuant to Faretta v. California, 42 2 US 806 (1975). S mall v. State, S25A1121 (June 1 7, 2025). At the conclu sion of that hearing on J uly 15, 2025, the trial cour t entered an order fi nding tha t Small made a knowing, inte lligent, and voluntary wa iver of his righ t to couns el on appeal and gr anting his request for s elf -representati on. Small’s appeal was then re -docketed to the term of thi s Court beginning in December 2025 and thereafter submitte d for a decision on the briefs.

3 speed ing awa y. Sander s ran out to find Snelling in the d river’ s seat of his car, r iddled w ith bulle ts. Snelling died on t he sc ene. Addit ional e videnc e, inc luding su rveilla nce fo otage a nd ce ll phone record s, furt her implica ted Sma ll, plac ing his vehicle and phone at and ar ound Snelling’s house before and dur ing the tim e of the murder. Small testifie d in his o wn de fense at tria l and ad mitte d he was in his C halle nger o utside o f Snelling’s house a t the t ime of t he shoo ting, b ut Small c laimed that he had co m e to give S anders money, fel l asle ep in hi s car, w as awak ened by th e sou nd of gun shots, and im med iatel y dr ove aw ay wi thou t se eing any par t of the s hooting. 2. On appeal, S mall argue s that t he tria l court denied him an arr aignme nt in violat ion of his d ue proce ss rights. But Small never raised th at issue unt il this a ppea l. U nder our cl earl y establ ish ed pr ece dent, “‘an y er ror in th e l ack o f a rrai gnm ent was waiv ed by [Smal l ’s] fai lu re to rais e the i ssu e prio r to the v erdi ct.’ ” Moss v. State, 298 Ga 613, 61 5 (2016) (q uoting Spear v. State, 270

4 Ga. 628, 632 (19 99)). Accord ingly, Sma ll’s c laim fails. 2 3. Small also c onten ds on appeal – ag ain, for the first t ime – that his tria l counse l rende red cons titut ionally ine ffec tive a ssista nce by fail ing to in form hi m of hi s righ t to be ar raig ned or t o appe al based on deni al of ar raig nmen t. B ut “[i ] nef fect iven ess cl aims mu st be rai sed and purs ued at th e earl ie st pra ctic abl e mo ment, whi ch for a claim of inef fec tiv e assis tance of tri al cou nsel is a t the moti on f or new tri al s tage if the defen dant i s no l onger repr esent ed by the attorn ey w ho rep res ented him at tr ial. ” Patterson v. State, 31 4 Ga. 167, 171 (20 22). B ecause Sma ll, who was no longer repres ente d by trial coun sel a t t he moti on for ne w tri al s tage upon the f iling of his amended moti on f or new tri al, nev er rais ed th is cl aim at that ti me, it is not pr eserve d fo r our r eview. See, e.g., id.; Washingt on v. Sta te, 313 Ga. 771, 773 (20 22); M oore v. State, 311 Ga. 5 06, 5 13 (2 021). 2 We also note that e ven if Small had raised th is issue before the verdict, the record shows th at Small was a ware of the charges against him, wai ved arraignment person ally and through c ounsel, and plead ed not guilty to the charges, such that h is due process right s were satisfied. See Moss, 298 Ga. a t 615.

5 Theref ore, t his claim also fails. Judgment affirmed. All the Justices concu r.