In the Supreme Court of Georgia

Decided: February 1, 2021

S21A0381. MIDDLEBROOKS v. THE STATE.

 BETHEL, Justice.

Deshaun Middlebrooks appeals his convictions for malice 

murder and other crimes in connection with the shooting death of 

Quintavious Barber and the aggravated assault of Keundre 

Chappell.1 Middlebrooks contends that the trial court erred in

 1 The crimes occurred on January 25, 2017. In March 2017, a Henry

County grand jury indicted Middlebrooks and Tory Jaleel Jones for malice 

murder of Barber (Count 1), felony murder based on aggravated assault of 

Barber (Count 2), aggravated assault of Barber (Count 3), aggravated assault 

of Chappell (Count 4), aggravated battery of Chappell (Count 5), and 

possession of a firearm during the commission of a felony (Count 6). Jones was 

also charged individually with possession of less than an ounce of marijuana 

(Count 7). His case is not part of this appeal. A jury jointly tried Middlebrooks 

and Jones in October to November 2018 and found them both guilty on all 

counts. The trial court sentenced Middlebrooks to life in prison without the 

possibility of parole on Count 1, twenty years concurrent on Count 3, twenty 

years consecutive to Count 1 on Count 4, and five years consecutive to Count 4

on Count 6. The trial court vacated Count 2, and purported to merge Count 5 

into Count 4, although it appears the inverse would have been the proper 

action. See Welch v. State, ___ Ga. ___ (848 SE2d 846, 852 (4)) (2020). However, 

as this merger error does no harm to Middlebrooks and the State has not raised 
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denying his motion to exclude evidence of gang activity and that he 

received constitutionally ineffective assistance of trial counsel.

Because Middlebrooks’ conviction for the aggravated assault of 

Barber should have merged into the malice murder conviction, we 

vacate the conviction and sentence for that count. Otherwise, we 

affirm. 

1. Evidence presented at trial showed that Barber was a 

member of the Bloods street gang – specifically, a subset called “Sex 

Money Murder” – and that Tory Jones and Middlebrooks were also 

members of that same subset. In January 2017, Barber sent out a 

message to some of his contacts indicating that he was looking to 

trade his rifle for two pistols. One person responded that he or she

knew someone who would be interested in the exchange and 

provided Middlebrooks’ number. Another person messaged Barber 

 

it by cross-appeal, we decline to correct the error. See Dixon v. State, 302 Ga. 

691, 698 (808 SE2d 696) (2017). On November 29, 2018, Middlebrooks filed a 

motion for new trial, which was subsequently amended. The trial court denied 

the motion for new trial on August 10, 2020. Appellate counsel filed a timely 

notice of appeal on August 14, 2020. This case was docketed in this Court to 

the term commencing in December 2020 and submitted for a decision on the 

briefs.
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to let him know that he or she and a fellow gang member each had 

a pistol to trade for the rifle. Barber then met with Jones and traded 

a rifle for the two pistols. However, after the trade, both Jones and 

Barber were dissatisfied. Barber told the contact who organized the 

exchange that he felt that they had tried to “slime” or “rob” him. 

Barber eventually agreed to meet with Jones to get back the 

rifle he had traded. Barber reassured his concerned friend, Keundre 

Chappell, that the trade would be fine because Barber and Jones 

were members of the same gang. Additionally, a “big homie” (i.e., 

Middlebrooks) who was “over” other gang members, was coming. On 

January 25, Barber and Chappell met Jones and Middlebrooks in a 

parking lot for the trade. Middlebrooks exited his car and began 

speaking with Barber by the car’s trunk. Jones also exited the car, 

greeted Barber, and returned to sit in the car. Chappell, who felt 

uneasy, backed away from the group to stand some distance away. 

Barber asked for his rifle that he had exchanged, and Middlebrooks 

told Jones to open the trunk. Jones replied that he could not find the 

trunk-release button, so Middlebrooks walked towards the driver’s 
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side door to open the trunk. As soon as the trunk opened, 

Middlebrooks started shooting at Barber and Chappell. Chappell 

was shot in his left hand and fell to the ground between two cars. 

Chappell saw Barber run past him, and he got up and started 

running behind him. Chappell and Barber ran to a nearby 

apartment, where Barber collapsed on the floor. Barber had been 

shot six times and died from his injuries. Middlebrooks later told 

Chappell’s cousin, who shared his dorm in jail, that he shot Barber 

because Barber moved from a subset of the Eastside Bloods to Sex 

Money Murder, and because Barber, who was his subordinate in the 

gang, did not give him a gun.2

2. Prior to trial, Middlebrooks filed motions to exclude any 

evidence regarding his gang participation or activity as improper 

character evidence under OCGA § 24-4-404 (b), irrelevant, and 

highly prejudicial. The trial court denied Middlebrooks’ motions

 2 Middlebrooks does not argue that the evidence was insufficient to 

support his convictions, and because this case was docketed to the term of 

Court that began in December 2020, we do not review that issue sua sponte. 

See Davenport v. State, 309 Ga. 385, 391-392 (4) (846 SE2d 83) (2020).
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following a pre-trial hearing and ruled that the gang evidence was

admissible because it was intrinsic to the crimes charged.

Middlebrooks argues that the trial court abused its discretion in 

denying his motions and that as a result, the trial was “riddled” with 

gang evidence and references to gang activity including during voir 

dire questioning, opening statements, witness examinations, and 

closing statements. As explained below, we conclude that the trial 

court did not abuse its discretion by admitting this evidence at trial.

(a) Middlebrooks argues that the gang evidence was not 

relevant because the State did not charge him with a violation of 

Georgia Street Gang Terrorism and Prevention Act, there was no 

evidence of ongoing gang activity, the State did not adequately prove 

that Middlebrooks was a gang member, and the evidence was 

unnecessary to prove motive. We disagree. 

Evidence is admissible as intrinsic evidence when it is (1) 

an uncharged offense arising from the same transaction 

or series of transactions as the charged offense; (2) 

necessary to complete the story of the crime; or (3) 

inextricably intertwined with the evidence regarding the 

charged offense.
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(Citation and punctuation omitted.) Williams v. State, 302 Ga. 474, 

485 (IV) (d) (807 SE2d 350) (2017). In applying these factors, this 

Court has previously noted that 

evidence pertaining to the chain of events explaining the 

context, motive, and set-up of the crime is properly 

admitted if it is linked in time and circumstances with the 

charged crime, or forms an integral and natural part of an 

account of the crime, or is necessary to complete the story 

of the crime for the jury. 

(Citation and punctuation omitted.) Id. “It is within the trial court’s 

sound discretion to determine whether to admit such evidence, so 

we review a trial court’s ruling admitting evidence as intrinsic for 

an abuse of that discretion.” (Citation and punctuation omitted.) 

Harris v. State, ___ Ga. _____ (850 SE2d 77, 83 (2) (b)) (2020).

Here, the State presented evidence from which the jury could 

conclude that Middlebrooks and Barber were active gang members

in the same gang and that Middlebrooks was motivated to shoot 

Barber because of a perceived disrespect. The challenged gang 

evidence thus plainly pertained to the chain of events in the case 

and was linked in time and circumstance with the charged crimes, 
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making the information necessary to complete the story for the jury. 

See Williams, 302 Ga. at 486 (IV) (d). See also Harris, 850 SE2d at 

83 (2) (b) (“necessary” evidence is that which is “reasonably 

necessary” to help the jury understand the sequence of events, not 

that which is “strictly necessary”). Further, even in the absence of a 

gang-related charge, evidence of gang activity or affiliation may still 

be admissible to show motive. See Armstrong v. State, Case No. 

S20A1364, 2020 WL 7481747, at *4 (2) (a) (Ga. Dec. 21, 2020). 

Accordingly, Middlebrooks’ arguments lack merit.

(b) Middlebrooks also argues that evidence of his gang 

involvement was more prejudicial than probative and was also 

inaccurate. Under OCGA § 24-4-403 (“Rule 403”), “[r]elevant 

evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice[.]” Although “evidence 

of gang membership can be highly prejudicial[,]” all inculpatory 

evidence is inherently prejudicial; “it is only when unfair prejudice 

substantially outweighs probative value that the rule permits 

exclusion.” (Citation and punctuation omitted; emphasis in 
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original.) Anglin v. State, 302 Ga. 333, 337 (3) (806 SE2d 573) (2017). 

Intrinsic evidence must satisfy Rule 403. See Williams, 302 Ga. at 

485 (IV) (d).

Here, the trial court did not abuse its discretion in determining 

that the probative value of the gang evidence in establishing the 

context and motive for the charged offenses was not substantially 

outweighed by the danger of unfair prejudice. See Anglin, 302 Ga. 

at 337 (3) (probative value of evidence of defendant’s alleged gang 

membership outweighed danger of unfair prejudice where evidence 

was relevant and probative of motive). Additionally, any alleged 

inaccuracies or objections raised on appeal by Middlebrooks with 

respect to the credibility of the gang evidence went not to the 

evidence’s admissibility but rather its weight, which is for the jury 

to resolve. See Davis v. State, 272 Ga. 327, 330 (4) (528 SE2d 800) 

(2000) (discrepancy in witness testimony went to weight and 

credibility of evidence rather than its admissibility). Thus, the trial 

court did not abuse its discretion in admitting the evidence 

Middlebrooks complains about on appeal.
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3. Middlebrooks next argues that he received constitutionally 

ineffective assistance because his trial counsel should have retained 

an expert on gangs to advance the defense’s theory that the shooting 

was not actually gang-related and that Chappell was the aggressor 

in the shooting. Middlebrooks argues that his trial counsel was not 

prepared to defend Middlebrooks or to explain the gang evidence 

because trial counsel failed to retain such an expert. We disagree.

To prevail on a claim of ineffective assistance of counsel, a 

defendant must show that counsel’s performance was 

constitutionally deficient and that the deficient performance 

resulted in prejudice to the defendant. See Strickland v. 

Washington, 466 U. S. 668, 687-696 (104 SCt 2052, 80 LE2d 674) 

(1984); Wesley v. State, 286 Ga. 355, 356 (3) (689 SE2d 280) (2010). 

To satisfy the deficiency prong, a defendant must demonstrate that 

his attorney “performed at trial in an objectively unreasonable way 

considering all the circumstances and in light of prevailing 

professional norms.” Romer, 293 Ga. at 344 (3); see also Strickland, 

466 U. S. at 687-688. This requires a defendant to overcome the 
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“strong presumption” that trial counsel’s performance was 

adequate. Marshall v. State, 297 Ga. 445, 448 (2) (774 SE2d 675) 

(2015). To satisfy the prejudice prong, a defendant must establish a 

reasonable probability that, in the absence of counsel’s deficient 

performance, the result of the trial would have been different. See 

Strickland, 466 U. S. at 694. “If an appellant fails to meet his or her 

burden of proving either prong of the Strickland test, the reviewing 

court does not have to examine the other prong.” Lawrence v. State, 

286 Ga. 533, 533-534 (2) (690 SE2d 801) (2010).

“[T]he decision whether to present an expert witness, like other 

decisions about which defense witnesses to call, is a matter of trial 

strategy that, if reasonable, will not sustain a claim of ineffective 

assistance.” (Citation and punctuation omitted.) Sullivan v. State, 

308 Ga. 508, 512 (2) (b) (842 SE2d 5) (2020). See also Thomas v. 

State, 284 Ga. 647, 650 (3) (670 SE2d 421) (2008). Here, trial counsel 

admitted at the motion for new trial hearing that she did not 

anticipate the introduction of gang-related evidence and therefore 

did not retain an expert witness. But the inquiry focuses on what a 
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reasonably competent attorney may do under the circumstances.

See Chavez v. State, 307 Ga. 804, 811 (2) (b) (837 SE2d 766) (2020) 

(trial counsel’s own assessment of his performance does not control; 

rather, to establish that trial counsel was deficient, the appellant 

has to show that “no reasonable attorney” would have taken the 

same course of action as trial counsel). And although expert 

testimony might have been helpful in rebutting the evidence of gang 

activity and affiliation presented by the State at trial – as the expert

that new counsel retained attacked the reliability of the State’s gang 

evidence at the hearing on the motion for new trial – competent trial 

counsel could have reasonably determined that calling a gang expert 

to testify at trial might have served only to emphasize evidence that

Middlebrooks was involved in a gang, which was key to the State’s 

theory for Middlebrooks’ motive. Rather than attack such evidence 

with an expert, competent trial counsel could have reasonably 

decided to attack the gang evidence in other ways, including by 

cross-examining the State’s witnesses who testified about gang 

activity and by arguing to the jury that the gang evidence was not 
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credible or accurate, as trial counsel did here. Accordingly, because

Middlebrooks cannot establish that his trial counsel performed 

deficiently, this enumeration fails. See Stripling v. State, 304 Ga. 

131, 139 (3) (b) (816 SE2d 663) (2018) (counsel could reasonably 

decide not to call competing expert witness and instead focus on 

cross-examination of State’s witness); Matthews v. State, 301 Ga. 

286, 289 (800 SE2d 533) (2017) (counsel reasonably determined not 

to call expert witness and focused on cross-examination and 

argument to advance defense theory).

4. Finally, although not raised as error by Middlebrooks, we 

have identified a sentencing error. The trial court sentenced 

Middlebrooks for both the malice murder and aggravated assault of 

Barber. But, as charged in the indictment, the malice murder charge 

and the aggravated assault charge were both based on the gunshot 

that killed Barber. In light of the jury’s verdicts, the trial court 

should have merged the count for the aggravated assault of Barber

with the conviction for his malice murder. Because it did not, we 

vacate Middlebrooks’ conviction and sentence for the aggravated 
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assault of Barber. See Lumpkin v. State, ___ Ga. ___ (4) (849 SE2d 

175, 186) (2020).

Judgment affirmed in part and vacated in part. All the Justices

concur.