In the Supreme Court of Georgia

Decided: June 21, 2023

S23A0316. MUSE v. THE STATE.

S23A0373. HARRIS v. THE STATE.

S23A0427. HARRIS v. THE STATE.

 BOGGS, Chief Justice.

Appellants Durell Muse, Darious Harris, and Jujuane Harris, 

Darious’s brother, appeal from their convictions following a joint 

trial for malice murder and other crimes stemming from the 

shooting death of Antonio Clements, the shooting of Clements’ 

girlfriend, Kendra Clopton, and the firing of shots that struck a 

vehicle occupied by Silento Bell and Yolanda Davis. On appeal, all 

three Appellants challenge the sufficiency of the evidence to support 

certain of their convictions; contend that the trial court violated the 

continuing witness rule by allowing the jury to watch surveillance 

videos in the jury room during deliberations; and claim that the trial 

court violated certain of their rights when addressing notes from the 
2

jury. In addition, Muse and Darious contend that the trial court 

erred by failing to exclude evidence extracted from Muse’s cell 

phone; Muse contends that his trial counsel was ineffective in failing 

to raise a hearsay objection to testimony from a State’s witness; 

Darious and Jujuane contend that the trial court erred in failing to 

sever their trials; and Darious contends that he is entitled to a new 

trial because the trial court erred in failing to exclude the testimony 

of a State’s witness and because the State represented during the 

motion for new trial proceedings that the record was incomplete.1

 1 Clements and Clopton were shot on September 23, 2014. On January 

2, 2015, a Fulton County grand jury indicted all three Appellants, along with 

Tequila Forehand and Frederick Rosenau, for participation in criminal street 

gang activity (Count 1); malice murder (Count 2); criminal attempt to commit 

murder based on the shooting of Clopton (Count 3); two counts of felony 

murder, one count predicated on aggravated assault (Count 4) and the second 

count predicated on participation in criminal street gang activity (Count 5); 

four counts of aggravated assault committed against Clements (Count 8), 

Clopton (Count 9), Bell (Count 10), and Davis (Count 11); two counts of 

conspiracy to commit murder (Counts 12 and 13); criminal damage to property 

(Count 14); and possession of a firearm during the commission of a felony 

(Count 15). Forehand and Muse alone were indicted for felony murder 

predicated on possession of a firearm by a convicted felon (Counts 6 and 7, 

respectively) and possession of a firearm by a convicted felon (Counts 16 and 

17, respectively). 

At the beginning of a joint trial, the trial court announced that Rosenau 

would be tried separately. The record does not reflect whether he has been 

tried. At the joint trial for the Harris brothers, Muse, and Forehand from April 
3

We conclude that the evidence was sufficient to support 

Appellants’ convictions; that the trial court did not violate the 

continuing witness rule; that the trial court did not violate rights of 

Appellants when addressing certain notes from the jury; and that 

any violation of Appellants’ rights when addressing other notes was 

harmless. We also conclude that the trial court did not err by failing 

 

24 to May 2, 2017, a jury found the four co-defendants guilty on all counts 

against them, except Count 14 (criminal damage to property) on which the trial 

court directed a verdict. On May 22, 2017, the trial court sentenced all three 

Appellants to life in prison for malice murder, with Muse’s sentence to be 

served without the possibility of parole; a consecutive term of 30 years in prison 

for criminal attempt to commit murder; a consecutive term of 15 years in prison 

for participation in criminal street gang activity; and terms of 20 years in 

prison on two aggravated assaults, with Muse’s sentences to run consecutively. 

Muse and Darious Harris were sentenced to a consecutive term of five years in 

prison for possession of a firearm during the commission of a felony, while 

Jujuane Harris received a five year probated sentence, to be served 

consecutively. Muse was sentenced to a consecutive term of five years in prison 

for possession of a firearm by a convicted felon. The felony murder convictions 

against all three Appellants were vacated by operation of law. The trial court 

merged Counts 8 and 9 (aggravated assaults against Clements and Clopton, 

respectively) and Counts 12 and 13 (both charging conspiracy to commit 

murder) for purposes of sentencing. 

All three Appellants timely filed motions for new trial, which were 

amended with new counsel on various dates through 2021. After hearings in 

2021, the trial court denied the amended motions in separate orders entered 

in September and October 2022. All three Appellants filed timely notices of 

appeal. Muse and Darious Harris’s cases were docketed in this Court to the 

term beginning in December 2023, while Jujuane’s case was docketed to the 

April 2023 term. All three cases were submitted for decisions on the briefs. 

There is no appeal by Forehand currently before us.
4

to exclude evidence extracted from Muse’s cell phone; that Muse has 

failed to establish prejudice on his claim that trial counsel was 

ineffective in failing to raise a hearsay objection; that the trial court 

did not abuse its discretion in denying Darious’s and Jujuane’s 

motions to sever; that the trial court did not err in failing to exclude 

the testimony of a State’s witness; and that Darious is not entitled 

to a new trial on the ground that the State represented during the 

motion for new trial proceedings that the record was incomplete. 

Accordingly, we affirm Appellants’ convictions. 

1. The evidence presented at trial showed the following. On 

September 23, 2014, Darious and Harris (also known, respectively, 

as “Diablo” and “Mambo”), along with five other passengers, rode in 

Darious’s tan Chevrolet Tahoe to a gas station at the intersection of 

Campbellton Road and Stanton Road in Fulton County. At almost 

the same time, Muse, Tequila Forehand, and Frederick Rosenau 

arrived at the gas station in Muse’s dark blue Chevrolet Impala. 

While there, Appellants saw a gray car, which they thought was 

occupied by people with whom they had been feuding. Instead, the 
5

car was occupied by Clements and Clopton. Occupants of Appellants’ 

two vehicles opened fire on the car occupied by Clements and 

Clopton, killing Clements and injuring Clopton. 

More particularly, Clopton testified that, just before the 

shooting, she and Clements were driving down Stanton Road to the 

gas station to buy cigarettes before the store closed at midnight. 

Clopton testified that Clements was driving and that, as they 

approached Campbellton Road and began turning left into the gas 

station, a bullet struck her passenger window. According to Clopton, 

Clements tried to back up but a bullet struck him in the head, and 

their car stopped. Clopton “crawled behind the car and laid down.” 

In the meantime, shots were still being fired. Clopton added that she 

was behind the car about 30 seconds and that while she was there, 

the shots stopped. She then saw a vehicle drive off at a “high rate of 

speed”; she could not identify the vehicle and was not even “sure [if] 

it [was] a truck or a car.” After the vehicle drove off, she ran to the 

gas station for help. Clopton could not identify the shooter or the car 

that she saw drive away from the gas station. A 911 call reporting 
6

the incident was made at 11:48 p.m., and law enforcement officers 

arrived shortly thereafter. Clopton had been grazed by a bullet on 

the top of her head, and Clements died from the injuries caused by 

the bullet wound to his head. 

Silento Bell testified that at 11:50 p.m. on September 23, 2014, 

he and his wife, Yolanda Davis, were driving down Campbellton 

Road and that as they were passing the traffic light at the 

intersection of Campbellton and Stanton Roads, an “object” hit their 

windshield and then “a lot of shooting started.” He ducked down, 

“went into defense mode,” was “trying to get out of harm’s way,” and 

was “trying not to get shot.” Once he looked up, he saw a black 

Impala and a yellow Chevrolet Tahoe, with its lights off, “shoot past” 

him “at a high rate of speed.” He added that both vehicles had come 

out of the gas station. On cross-examination, when asked how many 

times he had “actually been shot at,” Bell responded that “they 

wasn’t shooting at [him].” Bell also testified on cross-examination

that his car was not struck by a bullet but by what he “assum[ed]” 

was a brick. He added that any bullet holes that the police found in 
7

his car were from a previous shooting. However, on redirect, Bell 

testified that a bullet could have hit the windshield and added that 

he did not “know what the object was.” 

Davis agreed with Bell’s description of events, but she testified 

that a bullet and not a brick struck their car, and she described 

Darious’s vehicle as a “white Suburban” instead of a Tahoe. Davis 

also testified that before the shooting, she saw the Impala parked by 

a gas pump at the gas station and the Suburban in front of the 

station. She added that, after the shooting, both vehicles left the gas 

station at a high rate of speed. Over Jujuane’s hearsay objection, 

Davis testified that, on the night of the crimes, Bell told law 

enforcement officers the same thing that she did about what 

happened “in every respect.” 

The gas station had a video surveillance system that consisted 

of a number of cameras recording activity at various parts of the 

exterior and interior of the gas station. A number of video clips from 

the recording system were played at trial. Appellants do not dispute 

that Darious’s Tahoe and Muse’s Impala are depicted in the video 
8

clips. Those clips and other testimony at trial showed that, on 

September 23, 2014, Muse’s Impala and Darious’s Tahoe arrived at 

the gas station within a few seconds of each other around 11:43 p.m. 

Muse’s Impala parked at a gas pump on the side of the gas station 

near the intersection of Campbellton and Stanton Roads, and 

Darious’s Tahoe parked in front of the gas station close to an exit on 

Campbellton Road. Around 11:45 p.m., Darious got out of the 

driver’s door of the Tahoe and opened the back door on the driver’s 

side. A video clip from inside the gas station showed that Rosenau 

and Forehand went inside the gas station shortly after 11:44 p.m. 

and went back outside shortly after 11:45 p.m. While Forehand and 

Rosenau were inside the gas station, a man, who was not identified 

at trial, got out of the Impala, opened the trunk, and got something 

out of it. Forehand approached the Tahoe at 11:45:35 p.m., spoke 

with Darious and other occupants, and then, at 11:46:13 p.m., 

walked in the direction of the Impala. Forehand approached the 

Tahoe again at 11:46:22 p.m., stood by the driver’s door, leaned in 

the driver’s door and looked toward the back seat, and then, at 
9

11:46:30 p.m., walked in the direction of the Impala. Immediately 

after Forehand walked away from the Tahoe, Jeremiah McKenzie, 

who testified and identified himself in the video clip, approached the 

Tahoe and spoke with Darious. At 11:46:50 p.m., McKenzie walked 

away from the Tahoe. A few seconds later, several men got out of the 

Tahoe and began shooting in the direction in which the Impala was 

parked. The victims’ car was located on the other side of the Impala

at that time, attempting to turn into the gas station from Stanton 

Road. There was no testimony regarding the identity of the shooters 

who emerged from the Tahoe, and there was no video clip of what 

was happening at the Impala at the time of the shooting. The Impala 

and the Tahoe are shown driving away from the gas station at 

11:47:30, pulling out onto Campbellton Road. 

McKenzie testified that he knows Darious as Diablo and 

Jujuane as Mambo and that he and the Harris brothers lived in the 

same neighborhood near the gas station. McKenzie testified that he 

saw the Tahoe park at the gas station and that he knew it was owned 

by Diablo. According to McKenzie, shortly after the Tahoe parked, 
10

he saw Darious get out of the front driver’s door of the Tahoe and 

open the back door on the driver’s side. McKenzie added that, a short 

time later, a female that he knew as “Red Rose” approached the 

vehicle. After Red Rose walked away from the Tahoe, McKenzie 

walked up to it and asked, “What’s going on?” He added that there 

were seven occupants of the Tahoe, but that he only recognized 

Diablo, who was sitting in the front driver’s seat, and Mambo, who 

was sitting in the front passenger seat. McKenzie testified that he 

saw a “whole bunch of guns,” adding that everyone in the car had a 

gun except “[a]bout two people.” The occupants told McKenzie to 

“[m]ove back,” and Diablo said “green light” or “go.” McKenzie moved 

away from the Tahoe. McKenzie testified that, at that time, a gray 

car was turning into the gas station and “[t]hat’s when they started 

shooting.” According to McKenzie, Red Rose, who was near a gas 

pump, was the first person who started shooting, followed by men 

from the Tahoe. When asked on cross by Darious’s counsel if he had 

seen Diablo and Mambo with a weapon, McKenzie said, “there was 

so many [guns], I just can’t say they had one. But I didn’t see them 
11

get out of the truck.” 

McKenzie also testified that he had seen them at the gas 

station earlier on the day of the crimes. According to McKenzie, they 

were “just standing around there kicking it” when Diablo’s and 

Mambo’s sister approached them and said that “some guys are 

looking for you in a gray car.” McKenzie added that he had seen 

Diablo, Mambo, and others “feuding” or “beefing” with individuals 

in a gray car for “a whole week,” and that “Diablo and them” were 

part of the Bloods gang, while the people in the gray car were part 

of the Crips gang. 

Investigator T. Bacon of the City of Atlanta Police Department 

investigated the crime scene. He testified that the victims’ car was 

struck by nine bullets, with three bullets striking the front 

passenger window. He added that he found a large number of shell 

casings at the crime scene. Vanna Kelly, a GBI firearms expert, 

testified that the four .45-caliber shell casings found at the scene 

were fired from the same firearm; that 13 9mm shell casings found 

at the scene were fired from the same firearm; that 11 other 9mm 
12

shell casings were fired from a different 9mm pistol; that two other 

9mm shell casings were fired from yet a third 9mm pistol; and that 

27 7.62 x 39 millimeter shell casings found at the scene were all fired 

from the same firearm. Kelly also testified that the 7.62 x 39 shell 

casings were “consistent with being fired from an AK-47 or SKS-type 

rifle.” The 7.62 x 39 shell casings were found in the area where the 

Impala had been parked at the gas station.

Kasandra Novinger, who was a probation officer for the 

Georgia Department of Corrections in November 2014, testified that 

Muse was called for a probation visit based on information2 that her 

office had received from Detective Summer Benton of the Atlanta 

Police Department. She testified that, when she first encountered 

Muse at the office, he seemed fine, but that once she informed him 

that the office would be conducting a urine screen, as well as a 

search of his cell phone and car, he “began to show obvious signs of 

anxiety,” with his breathing becoming heavier and shaky. While 

 2 This information concerned an incident separate from the crimes that 

occurred in this case. 
13

waiting to do the urine screen, Muse vomited in the lobby of the 

office. During the search of Muse’s car, three spent 7.62 x 39 

millimeter shell casings were found in the back seat. Kelly testified 

that those casings were fired from the same firearm that fired the 

7.62 x 39 shell casings found at the crime scene. 

Sergeant Lakea Gaither testified that she had been a detective 

in the gang unit of the Atlanta Police Department for over seven 

years and had encountered over a thousand gang members during 

that time. She testified that the Bloods are a criminal street gang 

acting within Fulton County and that the “Nine Trey Bloods,” 

nicknamed “Billy Bad Ass,” are a sect of the larger Bloods gang. That 

sect calls their female members terms like Lady, Ruby, or Rose. She 

added that the Billy Bad Asses (“BBAs”) used symbols like five-point 

stars, a skull, “five symbols,” and BBA tattoos to identify 

themselves. According to Gaither, Forehand claimed membership in 

the BBAs and had a five-point star on the side of her face. She also 

testified that on Muse’s Facebook page, he went by the name 

“Finessalino” and that members of the Nine Trey Bloods attached 
14

“lino” to the end of their names. Gaither added that she had learned 

from two investigators in the gang unit that Darious and Jujuane 

were affiliated with the Nine Trey Bloods. Finally, Gaither testified 

that Rosenau was a member of the Nine Trey Bloods and was known 

as “Gangster P” or “GP.” She added that there were “social media 

pictures with him throwing up gang signs . . . with other Nine Trey 

members” and that he “was a low, L-O-W, 020, which is . . . like third 

in rank of a particular gang.” 

Detective Kevin Leonpacher, who was trained in cell phone 

analysis, testified that information that he obtained from the carrier 

of Muse’s cell phone showed that, shortly before the 911 call 

reporting the incident at 11:48 p.m., Muse’s cell phone made a call 

that hit off a cell tower in the same geographic area as the crime 

scene. Moreover, the evidence showed that Muse’s cell phone made 

a call at 11:51 p.m. that hit off that same cell tower but on a different 

side of it and that his phone made a call at 11:54 p.m. that hit off a 

cell tower that was farther away from the crime scene. Leonpacher 

added that he had examined thirty days of calls made using Muse’s 
15

cell phone and that the calls made before and after the shooting were 

made to numbers that were in the top seven of numbers most 

frequently called from Muse’s phone. 

In addition, Investigator Jared Watkins testified that he 

performed a “phone dump” of Muse’s cell phone, which involved 

using a software program to extract information from the phone. 

The messages that Watkins extracted from Muse’s cell phone 

showed that Muse received an incoming message on November 2, 

2014, that said that “[h]e who walks by these principles walk the life 

of Billy. Loyalty is everything. Remember that. Y’all, loyalty lays 

with Billy first and those who brought you to Billy secondly. I love 

my Billy.” Another message sent on October 25, 2014, reads: “This 

Billy is more than a gang, it’s a life for Billy, and we do the same in 

return. It’s not about staying either. It’s in or you’re out. Your 

decision in this life.” There was a message sent from Muse’s phone 

on September 25, 2014, saying that “[a]s of today, everyone report 

directly to Finessalino.” Moreover, at 11:17 p.m. on September 23,

the night of the shooting, Muse’s phone sent a message saying, 
16

“Well, I’m in some issue right now, so I’m out.” Then, in the early 

morning of September 24, Muse’s phone sent a message saying, 

“Don’t know one take that stick from there.” At 4:42 a.m. on 

September 24, Muse’s phone received a message from a person

named Nick Elder saying, “Nothing on news twin.” At 9:06 a.m. that 

same day, Muse’s phone sent a message to Elder saying, “Already 

seen it.” Then, at 9:26 a.m., the phone sent a message to “Rose” that 

read, “Yo, make sure you get my little bros to get those 7/62 by 39 by 

the time I get back today.” In addition, at 12:30 p.m. on September 

24, Muse’s phone sent a message that said, “7/62 by 39.” The next 

message the phone sent said “Bullets.” Muse’s phone also contained 

a video of an unidentified man in the backseat of a car holding a 

firearm that Investigator Watkins identified as an AK-47. Watkins 

described a “stick” as a “street term” for a “firearm” and testified 

that the only firearms that could fire “7/62 by 39” ammunition were 

“an AK-47 and . . . an SKS.”

Both Darious and Jujuane were interviewed by Detective 

Benton before trial. Benton interviewed Jujuane on September 27, 
17

2014. Benton testified that Jujuane denied being at the crime scene, 

saying that he was at home when the crimes occurred. Jujuane also 

said that he “hung around Bloods,” particularly the BBAs, but “was 

not involved with them.” During a second interview with Benton on 

October 6, 2014, Jujuane first denied being at the scene, but then 

admitted that he was in the front seat of the Tahoe when the 

shooting occurred and that he heard someone say “[t]here they go.” 

However, he denied knowing “what was about to go down” and 

denied knowing anyone who was sitting in the backseat of the 

Tahoe. 

Benton interviewed Darious on October 10, 2014. She testified 

that Darious initially denied that he was at the crime scene and said 

that he owned a Buick vehicle, but that after the detective informed 

him that she had spoken with Jujuane, Darious admitted that he 

was there and that he owned a Chevrolet Tahoe. He also admitted 

that he arrived at the gas station on the night of the crimes at 

roughly the same time as the Impala and that he had been in hiding 

after the crimes were committed but for a reason other than the 
18

crimes in question. Darious denied knowing the people who were 

sitting in the back of his Tahoe on the night of the crimes. Like 

Jujuane, he denied being a member of the Bloods but said that he 

“does hang out with a few members.” 

Muse was the only defendant to testify at trial. He 

acknowledged that he and Rosenau are members of the Bloods gang, 

but testified that he was not at the gas station during the shooting 

incident. He added that Rosenau had dropped him off at a 

girlfriend’s house around 8:00 p.m. on the night of the incident, that 

Rosenau took Muse’s Impala “to make a little run,” and that he 

(Muse) left his cell phone in the Impala to charge because he did not 

have a wall charger. According to Muse, he stayed at his girlfriend’s 

home about three hours, and she then drove him to the nearby home 

of a friend and dropped him off. Muse testified that later that 

evening, Rosenau came to his friend’s home, and “[e]verybody [was] 

kind of frantic, they were, like, shooken up about something.” Muse 

did not say who was with Rosenau, but he testified that “they didn’t 

go into too much detail” and took off. Muse testified that, at the time 
19

of the incident, he did not know either of the Harris brothers.

2. All three Appellants contend that the evidence presented at 

trial was constitutionally insufficient to support their convictions for 

the crimes committed against Clements, Clopton, Bell, and Davis. 

In particular, Muse claims that there was no evidence presented at 

trial that he participated in the incident that led to the shooting that 

killed Clements and injured Clopton, correctly noting that no 

witness identified him at the crime scene and that the surveillance 

video did not show him as being present at the gas station. For their 

part, Darious and Jujuane contend that the evidence showed only 

that they were merely present at the crime scene and that they did 

not fire or possess a weapon. We disagree. 

When evaluating the sufficiency of the evidence as a matter of 

federal due process, we view the evidence presented at trial in the 

light most favorable to the verdicts and consider whether it was 

sufficient to authorize a rational trier of fact to find the defendant 

guilty beyond a reasonable doubt of the crimes of which he was 

convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 
20

61 LEd2d 560) (1979); Moore v. State, 311 Ga. 506, 508 (858 SE2d 

676) (2021). This “limited review leaves to the jury the resolution of 

conflicts in the evidence, the weight of the evidence, the credibility 

of witnesses, and reasonable inferences to be made from basic facts 

to ultimate facts.” Rich v. State, 307 Ga. 757, 759 (838 SE2d 255) 

(2020) (cleaned up). 

Moreover, to prove Appellants’ guilt, it was not necessary for 

the State to prove that Appellants possessed a weapon or fired at 

the victims. See Saylor v. State, ___ Ga. ___ (___ SE2d ___) (2023 WL 

3183590, at *4) (May 2, 2023). (“To prove [the defendant’s] guilt, the 

State was not required to prove that he personally fired at [the 

victim] or his vehicle.”). 

OCGA § 16-2-20 (a) makes a party to the crime equally 

culpable, and a defendant is a party to a crime if he 

“[i]ntentionally aids or abets in the commission of the 

crime” or “[i]ntentionally advises, encourages, counsels, 

or procures someone else to commit the crime.” OCGA § 

16-2-20 (b) (defining parties to a crime). 

Id. See also Clark v. State, 315 Ga. 423, 428 (883 SE2d 317) (2023) 

(holding that although the evidence at trial showed that the 
21

defendant did not fire the shot that killed the victim, the evidence 

showed that he was a party to that crime and was constitutionally 

sufficient to support his conviction); White v. State, 298 Ga. 416, 418 

(782 SE2d 280) (2016) (holding that the “fact that [the defendant] 

was merely the driver and did not actually fire the gun does not 

undermine the legal sufficiency of the evidence against him” where 

the evidence showed that he was a party to the crimes). “Conviction 

as a party to a crime requires proof of a common criminal intent, 

which the jury may infer from the defendant’s presence, 

companionship, and conduct with another perpetrator before, 

during, and after the crimes.” Clark, 315 Ga. at 427. “However, mere 

presence at the crime scene is insufficient to make someone a party 

to a crime.” Id. at 427-428.

Viewed in the light most favorable to the verdicts, the evidence 

at trial showed that Darious’s Tahoe and Muse’s Impala arrived at 

the gas station at almost exactly the same time and that numerous 

passengers in Darious’s Tahoe were armed. Moreover, Darious, 

Jujuane, Muse, Forehand, and Rosenau were all identified as 
22

members of the Bloods gang. McKenzie, who knew Darious and 

Jujuane, testified that they had been feuding with members of the 

Crips gang in the week preceding the shooting. There was also 

evidence that the members of the Crips gang were driving a gray car 

and that Darious’s and Jujuane’s sister had told them earlier on the 

day of the shooting that “some guys” in a gray car were looking for 

them. Surveillance video showed that Darious spoke with Forehand, 

a fellow gang member and occupant of Muse’s car, at his Tahoe on 

two occasions, the last one just seconds before 59 shots were fired in 

the direction of the gray car turning into the gas station, which also 

happened to be in the direction of the car occupied by Bell and Davis. 

The evidence showed that Clements was killed by one of the bullets 

fired, that Clopton was hit by one, and that Bell’s and Davis’s car 

was struck by one. Moreover, those shots were fired, at a minimum, 

by Forehand and several occupants of Darious’s Tahoe, just after 

McKenzie heard Darious say “green light” or “go.” Furthermore, 

immediately after the shooting, Darious’s Tahoe and Muse’s Impala 

sped away from the gas station together. There was also evidence 
23

that calls were placed by Muse’s cell phone while it was located near 

the crime scene shortly before and shortly after the shooting and 

that those calls were made to people that Muse frequently called. 

Muse’s cell phone was also used to send text messages after the 

crimes that said not to move a firearm and to “make sure you get my 

little bros to get those 7/62 by 39,” one of the types of ammunition 

used in the shooting, “by the time I get back today.” In addition, 

when Muse realized that his cell phone and vehicle would be 

searched about a month and a half after the crimes, he displayed 

extreme anxiety, including vomiting. And when law enforcement 

officers searched his car, they found three spent 7.62 x 39 millimeter 

shell casings that had been fired from the same firearm that fired 

the 7.62 x 39 shell casings found at the crime scene. Moreover, the 

7.62 x 39 shell casings found at the crime scene were found around 

the location where Muse’s Impala had been parked. 

We conclude that the evidence was sufficient as a matter of 

constitutional due process to authorize a rational trier of fact to find 

Appellants guilty beyond a reasonable doubt as parties to the crimes 
24

committed against Clements, Clopton, Bell, and Davis, including 

malice murder, even if they did not possess or fire a weapon. See 

Jackson, 443 U.S. at 319; OCGA § 16-2-20; Clark, 315 Ga. at 427-

428; White, 298 Ga. at 418. Moreover, although Muse points out that 

he presented an alibi defense at trial, testifying that Rosenau 

borrowed his vehicle and that Muse left his phone in the vehicle so 

that it could charge, the jury was authorized to reject that testimony 

and credit the foregoing evidence of his participation in the crimes. 

See Pittman v. State, 300 Ga. 894, 897 (799 SE2d 215) (2017) 

(holding that the jury was entitled to disbelieve the defendant’s alibi 

and credit other evidence, “as resolving evidentiary conflicts and 

inconsistencies and assessing witness credibility are the province of 

the fact finder, not the appellate court” (cleaned up)). 

In addition, Muse’s contention that the evidence was 

insufficient to support his conviction for the aggravated assault of 

Bell because Bell testified that “they wasn’t shooting at [him]” and 

that it was a brick and not a bullet that hit his car is without merit. 

To begin, the indictment charged Muse with committing an 
25

aggravated assault against Bell “by shooting at, towards, and in his 

direction with a firearm, the same being a deadly weapon,” so it was 

not necessary for the State to offer proof that a bullet struck Bell’s

car for Muse to be convicted of aggravated assault. Moreover, there 

are two methods of committing a simple assault that will support an 

aggravated assault charge. One is the “attempt[] to commit a violent 

injury to the person of another,” and the second is the commission of 

“an act which places another in reasonable apprehension of 

immediately receiving a violent injury.” OCGA § 16-5-20 (a) (1), (2). 

Here, the trial court instructed the jury only on the first method of 

committing a simple assault and charged the jury on the doctrine of 

transferred intent. Thus, although Bell testified that he did not 

think that the defendants were shooting at him, the charge on 

transferred intent made “it irrelevant” whether Bell was the 

intended victim of the assault. See Russell v. State, 303 Ga. 478, 480 

(813 SE2d 380) (2018) (holding that the doctrine of transferred 

intent made “it irrelevant” whether the defendant intended to shoot 

a victim who was intervening in a fight between the defendant and 
26

the intended victim of the shooting). Finally, Muse appears to 

contend that the State failed to prove that Bell was not in 

“reasonable apprehension of immediately receiving a violent injury,” 

OCGA § 16-5-20 (a) (2), because Bell stated that he believed 

Appellants were not shooting at him. The jury was not charged on 

that method of committing a simple assault, however. In sum, the 

evidence was sufficient as a matter of constitutional due process to 

support Muse’s conviction for the aggravated assault of Bell even 

though Bell was not the intended victim of the shooting. See 

Blackwell v. State, 302 Ga. 820, 821-822 (809 SE2d 727) (2018) 

(holding that, even though the victim was not the intended target of 

a gunfight and even though the defendant did not fire the fatal shot, 

the evidence was sufficient to support the defendant’s conviction as 

“a party to the crime of malice murder under the doctrine of 

transferred intent” because it showed that the defendant shared a 

common criminal intent with another person “to engage in a 

gunfight in the presence of innocent bystanders”). 

Finally, Jujuane’s contention that the evidence was insufficient 
27

to support his convictions as a matter of Georgia statutory law for 

the crimes against Clements, Clopton, Bell and Davis, see OCGA § 

24-14-6,3 fails. He argues that the State’s evidence did not exclude 

the reasonable hypothesis that he was merely present at the crime 

scene as a passenger in the Tahoe. However, “where the jury is 

authorized to find that the evidence, though circumstantial, was 

sufficient to exclude every reasonable hypothesis save that of the 

guilt of the accused, we will not disturb that finding unless it is

insupportable as a matter of law.” Smith v. State, 315 Ga. 357, 358 

(882 SE2d 289) (2022) (cleaned up). Here, even assuming all the 

evidence was circumstantial, we readily conclude that the evidence 

as summarized above was sufficient to authorize the jury to reject 

the hypothesis that Jujuane was merely present at the crime scene 

and, instead, to find that he was a party to the crimes committed 

that night. See id. 

 3 OCGA § 24-14-6 provides: “To warrant a conviction on circumstantial 

evidence, the proved facts shall not only be consistent with the hypothesis of 

guilt, but shall exclude every other reasonable hypothesis save that of the guilt 

of the accused.”
28

3. Darious and Jujuane also challenge the sufficiency of the 

evidence regarding their convictions for criminal street gang 

activity.4 We disagree. 

Darious and Jujuane were charged with violating the Street 

Gang Act, on the basis that while associated with a criminal street 

gang, they participated in criminal gang activity through the 

commission of at least one of several crimes, including murder, 

felony murder, and aggravated assault. To convict Darious and 

Jujuane, 

the State had to prove beyond a reasonable doubt the 

existence of a “criminal street gang,” that [Darious and 

Jujuane] w[ere] associated with the gang, that [they] 

committed one of the offenses listed in OCGA § 16-15-3 

(1), and that the commission of the predicate offense was 

intended to further the interests of the gang. 

Sillah v. State, 315 Ga. 741, 745 (883 SE2d 756) (2023). 

Darious and Jujuane do not argue that the Nine Trey Bloods 

 4 Muse challenges the sufficiency of the evidence supporting his 

conviction for criminal gang activity only on the ground that the State failed to 

prove that he committed a predicate act of violence. See OCGA § 16-15-3 (1) 

(J).
29

are not a criminal street gang. See OCGA § 16-15-3 (3) (defining a 

“criminal street gang” as “any organization, association, or group of 

three or more persons associated in fact, whether formal or informal, 

which engages in criminal gang activity”). Instead, they argue that 

the State failed to prove the other elements of criminal gang activity. 

As for whether the evidence was sufficient to prove that Darious and 

Jujuane were associated with the Nine Trey Bloods, McKenzie 

testified that he knew Darious and Jujuane from his neighborhood 

and that they were associated with the Bloods gang. Although 

Darious contends that McKenzie’s testimony was not credible,5 “‘it 

is axiomatic that resolving evidentiary conflicts and assessing 

witness credibility are within the exclusive province of the jury.’” 

McCoy v. State, 315 Ga. 536, 543 (883 SE2d 740) (2023) (quoting 

Graves v. State, 306 Ga. 485, 553 (831 SE2d 747) (2019)). Moreover, 

in addition to McKenzie’s testimony, Sergeant Gaither testified that 

 5 Darious argues that McKenzie’s testimony was not credible because he 

had three prior felony convictions and had a bias against Darious based on his 

testimony that Darious had threatened his wife before trial. 
30

Darious and Jujuane were associated with the Nine Trey Bloods. 

Jujuane points to the lack of evidence that he had tattoos, wore gang 

colors, or was pictured on social media with gang members. 

However, “although the State is required to prove its case with 

competent evidence, there is no requirement that it prove its case 

with any particular sort of evidence.” Allen v. State, 315 Ga. 524, 

529-530 (883 SE2d 746) (2023) (cleaned up). We conclude that the 

foregoing evidence, when viewed in the light most favorable to the 

verdicts, was sufficient to authorize the jury to conclude that 

Darious and Jujuane were associated with the Nine Trey Bloods. 

Moreover, in affirming Darious’s and Jujuane’s convictions for 

murder and other crimes committed against the individual victims, 

we have already concluded that the State proved that they 

committed predicate acts of violence. See OCGA § 16-15-3 (1) (J). 

With regard to the contention that the State failed to prove that 

Darious and Jujuane intended to further the interests of the Nine 

Trey Bloods, the evidence showed that Darious, Jujuane, and their 

fellow gang members had engaged in a conflict for about a week with 
31

a rival gang and that, earlier on the day of the crimes, Darious and 

Jujuane were told that some of the rival gang members, who were 

driving a gray car, were looking for them. Later that same day, 

Darious, Jujuane, and fellow gang members arrived at the gas 

station at almost exactly the same time, communicated with each 

other, and shot at the occupants of a gray car after Darious said 

“green light” or “go.” Even though Darious, Jujuane, and their fellow 

gang members were mistaken that the occupants of the gray car 

were members of the Crips gang, the jury was nevertheless 

authorized to conclude that the shooting was undertaken with an 

intent to further the gang’s interests. See Monroe v. State, 315 Ga. 

767, 770-771 (884 SE2d 906) (2023) (holding that evidence that the 

defendant, acting with fellow gang members, “sought to avenge the 

perceived disrespectful behavior” of a rival gang member “was 

sufficient to establish a nexus between the charged crimes and an 

intent to further the gang’s interests”). See also Hayes v. State, 298 

Ga. 339, 342-343 (781 SE2d 777) (2016) (holding that evidence of a 

defendant’s association with a criminal street gang and “his 
32

participation in the [gang’s] activities before and during the crimes 

charged provide[d] the required nexus between his criminal acts and 

the intent to further the gang’s interests”). 

4. Muse and Darious contend that the verdicts were “contrary 

to [the] evidence and the principles of justice and equity,” OCGA § 

5-5-20, and “decidedly and strongly against the weight of the 

evidence.” OCGA § 5-5-21. “Grounds for a new trial under these 

Code sections are commonly known as the ‘general grounds,’ and the 

two statutes give the trial court broad discretion to sit as a 

thirteenth juror and weigh the evidence on a motion for new trial 

alleging these general grounds.” Allen v. State, 315 Ga. 524, 531 n.5 

(883 SE2d 746) (2023) (cleaned up). “But as an appellate court, we 

do not independently review the record as a thirteenth juror. The 

decision to grant or refuse to grant a new trial on the general 

grounds is vested solely in the trial court.” Ward v. State, ___ Ga. 

___ (___ SE2d ___) (2023 WL 3468140, at *4) (May 16, 2023) (cleaned 

up). Here, in denying Muse’s and Darious’s motions for new trial, 

the trial court found that “the jury’s guilty verdict was not ‘contrary 
33

to [the] evidence and the principles of justice and equity.’ OCGA § 5-

5-20. Nor was the verdict ‘decidedly and strongly against the weight 

of the evidence.’ OCGA § 5-5-21.” The court also stated that it had 

“exercised its discretion and independently weighed the evidence in 

ruling on the merits of [Muse’s and Darious’s] OCGA §§ 5-5-20 and 

5-5-21 claims,” and that its “conscience approves this verdict.” The 

record therefore shows that the trial court properly exercised its 

authority in refusing to grant a new trial on the general grounds.

“Once we have determined that the trial court properly exercised its 

authority in refusing to grant a new trial on the general grounds, we 

cannot review the merits of that decision by the trial court.” Allen, 

315 Ga. at 531 (cleaned up). Accordingly, Muse’s and Darious’s 

claims on the general grounds fail.6

 6 In another case decided today, we noted that, “in the past, in evaluating 

a trial court’s denial of a motion for new trial on the general grounds, see OCGA 

§§ 5-5-20 & 5-5-21, we have performed or referenced a constitutional due 

process sufficiency-of-the-evidence review under Jackson [v. Virginia, 443 U.S. 

307 (99 SCt 2781, 61 LE2d 560) (1979)].” King v. State, No. S23A0214, slip op. 

at 14 n.8 (Ga. June 21, 2023). We also said in King that “many of us question 

whether it is proper for this Court to import Jackson into an appellate review 

of the general grounds (or to otherwise rely on Jackson as part of that 

analysis).” Id. However, we did not “determine the propriety of that practice” 
34

5. All three Appellants contend that the trial court violated 

their Sixth Amendment right to counsel by failing to inform counsel 

of three jury notes and by failing to seek comment from counsel. 

Moreover, Muse and Darious contend that the trial court violated 

their right to be present under the Georgia Constitution by 

discussing those jury notes in their absence. We disagree with both 

of these contentions. 

(a) The record shows that, during deliberations, the jury sent 

three notes to the trial court. In the first note, marked as “Court’s

Exhibit 1,” the jury asked three questions: “Definitions of all 

charges?”; “Does the actual killing weapon need to be possessed by 

the said person to be found guilty of murder?”; and “Watch 

surveillance footage.” The trial court said that the jury and the

defendants “need[ed] to be brought” into the courtroom. Shortly 

 

in King given that “King’s general grounds claim fail[ed] in all events because 

the trial court exercised its discretion as the thirteenth juror, and because the 

evidence against King was constitutionally sufficient to affirm his convictions.” 

Id. Similarly, here, where the trial court exercised its discretion as the 

thirteenth juror and where we have rejected Appellants’ claims under Jackson 

v. Virginia, we also need not “determine the propriety of that practice.” Id. 
35

thereafter, the record indicates that the jury was brought into the 

courtroom. The record is silent as to whether Appellants were 

brought into the courtroom. In the presence of counsel, the court 

asked the jurors what they meant by “[t]he definition of all charges,” 

and the foreperson said that “[t]here was a specific list you read that 

kind of broke down and clarified the charges.” The court asked 

whether the jury had been provided written charges, and the 

prosecutor noted that the court had asked the prosecutor and 

defense counsel to redact the charges that the court had marked 

through before giving the written charges to the jury and that 

counsel would be finished in about 10 minutes with that task. 

Counsel for Jujuane agreed with the prosecutor’s comment, saying 

“[t]hat’s correct.” The court then informed the jury that it would 

have those charges shortly. 

As for the second question, the court at one point said that the 

question was, “Do you have to be holding the gun to be convicted of 

murder?” Shortly thereafter, the court said that the question was, 

“Does the actual killing weapon need to be possessed by said person 
36

to murder to be found guilty of?” The trial court did not ask counsel 

what they thought was the appropriate response to the question. 

Instead, the court instructed the jury that the answer to the 

question was “no,” but that it would have the written charges and 

needed to review them. With regard to the third question, the court, 

the prosecutor, and counsel for Appellants had an extensive 

discussion regarding whether the jury could watch the surveillance 

footage in the jury room or had to watch it in the courtroom. 

Appellants contended that permitting the jury to watch the footage 

in the jury room would violate the continuing witness rule, but the 

court overruled the objection. 

The record also contains a second note from the jury, marked 

as “Court’s Exhibit 2.” That note contained a question asking if the 

jury could review the transcript of McKenzie’s trial testimony. The 

exhibit contains a written answer from the trial court: “No. Not 

available. Need to remember testimony as best you can.” The trial 

transcript contains no mention of this note by the trial court to 

counsel.
37

In yet a third note, marked “Court’s Exhibit 3,” the jury asked 

the court, “If we can come to agreement on some charges, but not 

others, for one defendant, how does that impact our decision”? The 

trial court read the note to counsel and asked, “How do I respond to 

that”? All counsel voiced their thoughts, and with the agreement of 

all counsel, the trial court instructed the jury that “[i]t’s the hope 

that you can have unanimous agreement on every single charge. If 

it comes to the point where you find that that’s impossible, then you 

need to let me know.” 

At joint hearings on Appellants’ motions for new trial, the trial 

court heard testimony regarding whether counsel and Appellants 

were present when the notes were discussed. The lead and assistant 

prosecutors both testified that the trial judge discussed the jury 

questions in the presence of all counsel and defendants, including 

the question regarding McKenzie’s testimony. They also added that 

the trial judge’s practice was always to discuss jury questions with 

counsel and the defendants being present. Moreover, Muse’s trial 

counsel testified that the trial judge’s practice was to discuss jury 
38

questions with counsel and defendants; that he had no reason to 

believe that the judge did not follow that practice in this case; that 

he remembered discussing jury questions with the court; that Muse 

was with him during the discussions; that he had no reason to think 

that other defendants and defense counsel were not present; and 

that if somebody had been missing during discussions, defense 

counsel would have raised their absence with the trial court, saying 

“[t]hat is just standard practice.” Jujuane’s trial counsel testified 

that she did not have “any specific recollection to conversations 

about the jury questions,” but that she was “sure” that the trial court 

included her and her client when discussing the jury questions

because that was the court’s normal practice. Reiterating that she 

had no specific recollection of the discussions about the jury 

questions, she added that to the best of her memory and based on 

the court’s normal practice, “the judge would read us the question 

and ask us if we have any input to tell us what it is.” She also 

testified that she was “able to participate in those conferences”; that 

her “client [was] with [her]”; that “other defense counsel were there”; 
39

and that if any defense counsel or defendants had been missing, she 

would have raised the issue with the trial court. 

In denying Appellants’ motions for new trial, the trial court 

found that Appellants had “failed to sufficiently demonstrate from 

the full record of this case—including the record made at the hearing 

on . . . motion for new trial—that [Appellants] and [their] lawyer[s]

were . . . precluded from discussing the jury questions with the trial 

court or . . . excluded from a colloquy between the trial court and the 

jury.” 

(b) “A criminal defendant’s constitutional right to counsel 

attaches after the onset of formal prosecutorial proceedings and 

continues through all critical stages of the proceeding brought 

against him.” Lowery v. State, 282 Ga. 68, 74-75 (646 SE2d 67) 

(2007) (cleaned up).7 In Lowery, we said that: 

 7 Appellants do not cite to either the Georgia or United States 

Constitutions to support their right-to-counsel claim. Instead, they rely 

primarily on Lowery, in which we held that a violation of the Sixth Amendment 

right to counsel constituted harmless error. Accordingly, we analyze 

Appellant’s claims as asserting a violation of the Sixth Amendment right to 

counsel and not as asserting a violation of the right to counsel under the

Georgia Constitution. See Ga. Const. of 1983, Art. I, Sec. I, Par.XIV. 
40

Assuming without deciding that the right to counsel 

encompasses the right to have reasonable notice of a 

deliberating jury’s substantive communication and a 

meaningful opportunity to be heard with regard to the 

proposed response thereto, the failure of the trial court to 

inform counsel of the contents of the note and to seek 

comment on or input in the formulation of the court’s 

response would constitute a violation of the right to 

counsel.

Id. at 75 (footnote omitted). Furthermore, “[i]n an exercise of this 

Court’s inherent power to maintain a court system capable of 

providing for the administration of justice in an orderly and efficient 

manner,” we took the opportunity to announce a rule requiring 

trial courts to have jurors’ communications submitted to 

the court in writing; to mark the written communication 

as a court exhibit in the presence of counsel; to afford 

counsel a full opportunity to suggest an appropriate 

response; and to make counsel aware of the substance of 

the trial court’s intended response in order that counsel 

may seek whatever modifications counsel deems 

appropriate before the jury is exposed to the instruction.

Id. at 76 (cleaned up). Since we decided Lowery, we have not 

revisited the existence of the constitutional rule that we assumed in 

Lowery–that a defendant’s right to counsel “encompasses the right 

to have reasonable notice of a deliberating jury’s substantive 
41

communication and a meaningful opportunity to be heard with 

regard to the proposed response thereto.” Id. at 75.8 The Court of 

Appeals, however, has said that in Lowery, we held that “‘the failure 

of the trial court to inform counsel of the contents of [a jury note] 

and to seek comment or input in the formulation of the court’s 

response [constitutes] a violation of [a defendant’s] right to counsel.”

Dowda v. State, 341 Ga. App. 295, 299 (799 SE2d 807) (2017)

(brackets in original). Appellants rely on Lowery and Dowda to 

argue that the trial court violated their right to counsel in this case. 

Assuming without deciding the continued validity of the 

constitutional rule that we assumed in Lowery, we conclude that 

Appellants’ claim fails. 

(c) As for the merits of the right-to-counsel claim, the record 

shows that the trial court complied with the requirements of Lowery 

 8 We have, however, had an opportunity to address the new rule of 

procedure that we announced in Lowery for handling jury communications. See 

Styles v. State, 309 Ga. 463, 469 n.6 (847 SE2d 325) (2020) (holding that any 

error in failing to comply with Lowery’s procedural rule was harmless and 

saying that “[s]ome of us have questions as to the propriety of our unilateral 

pronouncement of a new rule of procedure in Lowery, rather than through the 

rule-making process established by the Georgia Constitution”). 
42

when addressing the jury notes regarding the definitions of the jury 

charges, watching the surveillance footage, and what would happen 

if the jury could not reach agreement on some of the charges against 

Appellants. The trial court, however, failed to afford Appellants’ 

counsel an opportunity to provide input on the question regarding 

whether a defendant needed to possess the murder weapon to be 

found guilty. Moreover, the trial record does not show that the trial 

court afforded counsel an opportunity to provide input on the 

question whether the jury could review the transcript of McKenzie’s 

testimony, and for purposes of appeal, we will assume that the 

testimony at the hearings on motion for new trial did not resolve the 

issue. However, we conclude that any violation of Appellants’ right 

to counsel on these two questions was harmless. 

As we explained in Lowery, an error of constitutional 

magnitude, such as the denial of the Sixth Amendment right to 

counsel, can be harmless if “the State can prove beyond a reasonable 

doubt that the error did not contribute to the verdict.” Lowery, 282 

Ga. at 75 (cleaned up). There, the Court held that the trial court 
43

erred when it failed to inform counsel of the contents of a jury note 

on its deadlocked status before the trial court responded to the note 

by giving an Allen charge. Id. at 74-75. We concluded that the 

constitutional error was harmless beyond a reasonable doubt, 

explaining that “[t]he decision to give an Allen charge is within the 

trial court’s discretion” and that, as we had explained earlier in the 

opinion, “the Allen charge given by the trial court, though 

inaccurate, did not constitute reversible error.” Id. at 75.

Here, we also conclude that any violation of Appellants’ right 

to counsel was harmless beyond a reasonable doubt. First, the trial 

court’s response that a defendant did not have to be in possession of 

the murder weapon to be found guilty of murder was an accurate 

statement of the law and was adjusted to the evidence in the case. 

See Kemp v. State, 303 Ga. 385, 390 (810 SE2d 515) (2018) (holding 

that the defendant did not have to be in possession of the murder 

weapon to be found guilty of murder where the evidence showed that

the defendant conspired with others to rob the victim); Morris v. 

State, 308 Ga. 520, 529 (842 SE2d 45) (2020) (“A jury instruction 
44

must be adjusted to the evidence and embody a correct, applicable, 

and complete statement of law.” (cleaned up)). Moreover, “[w]hether 

or not to grant the jury’s request to rehear portions of the evidence 

is within the discretion of the trial judge.” Smith v. State, 280 Ga. 

161, 162 (625 SE2d 766) (2006) (cleaned up). “In fact, we have long 

held that, in Georgia, a judgment will not be reversed because the 

trial court declines to aid the jury in recalling the evidence and 

refuses a request to have certain testimony read back.” Johnson v. 

State, 301 Ga. 205, 208 (800 SE2d 296) (2017) (cleaned up). Thus, 

the trial court did not abuse its discretion in refusing to permit the 

jury to review a transcript of McKenzie’s testimony.9 Accordingly, 

we conclude that any error by the trial court in failing to consult 

with defense counsel before providing the jury with answers to the 

two questions at issue was harmless beyond a reasonable doubt. See 

Lowery, 282 Ga. at 75. 

 9 At the motion for new trial hearing, Jujuane’s counsel testified that, if 

the trial court had asked her how she would have responded to the jury’s note 

about reviewing a transcript of McKenzie’s testimony, she would have told the 

trial court to tell the jurors to rely on their memory. 
45

(d) With regard to Muse’s and Darious’s contention that the 

trial court violated their right to be present by discussing jury notes 

in their absence, the record belies this claim. To begin, the trial court 

directed that Appellants be brought into the courtroom before it 

addressed the notes from the jury, and “[w]e must apply the 

presumption of regularity and conclude that the trial court 

conducted the trial properly by making sure appellant[s] w[ere]

present when necessary.” Milinavicius v. State, 290 Ga. 374, 377 

(721 SE2d 843) (2012) (holding, based on the presumption of 

regularity, that when the record failed to show that the defendant 

was present for a discussion about replacing a juror, but showed that 

the court had directed before the discussion that the defendant be 

brought into the courtroom, there was no violation of the defendant’s 

right to be present). 

In addition, the record, including the testimony at the motion 

for new trial hearings, supports the trial court’s conclusion in 

denying Appellants’ motions for new trial that Appellants were 

present for the discussions regarding the jury notes. In this regard, 
46

the prosecutors testified, among other things, that the trial judge 

discussed the jury questions in the presence of all counsel and 

defendants and that his normal practice was to do so. Moreover, 

Muse’s trial counsel testified that the trial judge’s practice was to 

discuss jury questions with counsel and defendants; that he had no 

reason to believe that judge did not follow that practice in this case; 

and that he remembered Muse being with him when discussing jury 

questions with the court. And Jujuane’s trial counsel testified, 

among other things, that she was “sure” that the trial court included 

her and her client when discussing the jury questions and that it 

was the court’s normal practice to do so. Based on this evidence, we 

conclude that the trial court did not err in concluding that 

Appellants had failed to show that they were excluded from the 

discussions regarding the jury notes. See Frezghi v. State, 273 Ga. 

871, 871 (548 SE2d 296) (2001) (concluding that where both 

prosecutors testified at the hearing on the motion for new trial that 

the defendant was present for a portion of voir dire held in 

chambers, the trial court did not err in ruling against the 
47

defendant’s claim that the court violated his right to be present by 

excluding him from that portion). 

6. Appellants all contend that the trial court violated the 

continuing witness rule by allowing the jury to watch the 

surveillance videos in the jury room. “However, the continuing 

witness rule is directed at written testimony that is heard by the 

jury when read from the witness stand.” Moore, 311 Ga. at 511. “The 

rule is based on the principle that it is unfair and places undue 

emphasis on written testimony that has been read to the jury for the 

writing to be sent out with the jury to be read again during 

deliberations whereas oral testimony is received by the jury only 

once.” Id. at 511-512. Here, the surveillance videos were “not the 

reduction to writing of an oral statement, nor a written statement 

provided in lieu of testimony.” Clarke v. State, 308 Ga. 630, 636 (842 

SE2d 863) (2020) (cleaned up). Instead, they were “original 

documentary evidence,” they “did not derive their evidentiary value 

solely from the credibility of their makers,” and they were “properly 

allowed to go out with the jury.” Id. (cleaned up). Accordingly, the 
48

trial court did not err in overruling Appellants’ continuing witness 

objection. See id. at 637. Accord Moore, 311 Ga. at 511-512 (holding 

that the continuing witness rule did not apply to a computer 

presentation prepared by a detective that summarized cell phone 

records that had been admitted into evidence); Clarke, 308 Ga. at 

636-637 (holding that the continuing witness rule did not apply to a 

printout of text messages that the defendant had sent to the victim 

and which had been read to the jury during trial); Windhom v. State, 

326 Ga. App. 212, 214-215 (756 SE2d 296) (2014) (holding that the 

trial court did not violate the continuing witness rule by allowing a 

surveillance video to go out with the jury, explaining that “unlike a 

videotaped interview or a transcript of testimony, the video 

recording . . . is independent and original evidence, in and of itself, 

and does not depend on the credibility of the maker for its value”) 

(cleaned up).10

 10 Appellants rely on Lyons v. State, 309 Ga. 15, 17-19 (843 SE2d 825) 

(2020), to claim that the trial court erred in permitting the jury to re-watch the 

video surveillance footage in the jury room. Lyons, however, is inapplicable. 

There, the defendant contended that the trial court violated the continuing 
49

7. Muse and Darious contend that the State failed to timely 

provide discovery of evidence of text messages and other data 

extracted during the “phone dump” of Muse’s cell phone by 

Investigator Watkins.11 See OCGA § 17-16-4 (a) (3) (A). As a result, 

they contend, the trial court erred by failing to exclude the evidence 

and by failing to grant their motions for mistrial. 

Two days after Watkins testified about the data extracted from 

Muse’s cell phone, Appellants contended that they had not been 

provided this information as part of discovery and that the discovery 

violation meant that they had been unable to prepare for Watkins’s 

 

witness rule by permitting the jury to re-read two witnesses’ written 

statements to police, re-watch a video-recording of a witness’s statement to 

police, and re-watch a surveillance video from an apartment complex. We did 

not address whether the surveillance video was subject to the rule, but decided 

the case simply on the ground that the rule was not violated because the jury 

viewed all the evidence in the courtroom and not in the jury room. Lyons

therefore cannot be read as standing for the proposition that surveillance 

videos are subject to the continuing witness rule. See Palmer v. State, 282 Ga. 

466, 468 (651 SE2d 86) (2007) (“[D]ecisions of this Court do not stand for points 

that were neither raised by the parties nor actually decided in the resulting 

opinion,” and “questions which merely lurk in the record, neither brought to 

the attention of the court nor ruled upon, are not to be considered as having 

been so decided as to constitute precedents.” (cleaned up)). 

11 In denying Muse’s and Darious’s motions for new trial, the trial court 

found that the State did comply with discovery requirements for this evidence. 

Muse and Darious disagree with this finding, but we need not resolve the 

disagreement to decide this appeal. 
50

testimony and had made the trial unfair, entitling them to a 

mistrial. They also moved to exclude the evidence based on the 

discovery violation. The trial court denied both motions and granted 

Appellants a continuance in order for Appellants to have an 

opportunity to review the cell phone evidence. 

With regard to Muse’s and Darious’s mistrial motion, because 

the record shows that they did not move for a mistrial until two days 

after the testimony in question, the mistrial issue is not preserved 

for appellate review. See Bedford v. State, 311 Ga. 329, 332-333 (857 

SE2d 708) (2021) (holding that because the defendants “moved for a 

mistrial after, not contemporaneously with, the State’s improper 

closing argument, the motion was untimely and the issue was not 

preserved for appellate review”), disapproved in part on other 

grounds by Clark v. State, 315 Ga. 423, 435 n.16 (883 SE2d 317)

(2023).

With regard to Muse and Darious’s claim that the trial court 

should have excluded evidence of the “phone dump” because of a 

discovery violation, they likewise did not timely raise this issue at 
51

trial, waiting two days after Watkins’s testimony to do so. 

Accordingly, we review this claim for plain error. See OCGA § 24-1-

103 (d).12 To show plain error, Appellants 

must point to an error that was not affirmatively waived, 

the error must have been clear and not open to reasonable 

dispute, the error must have affected his substantial 

rights, and the error must have seriously affected the 

fairness, integrity, or public reputation of judicial 

proceedings.

Grier v. State, 313 Ga. 236, 240-241 (869 SE2d 423) (2022). 

OCGA § 17-16-4 (a) (3) (A) required the State, as it concedes, 

to permit Muse and Darious to inspect and copy the data extracted 

from Muse’s cell phone “no later than ten days prior to trial or as 

otherwise ordered by the court.” “OCGA § 17-16-6 provides that if 

the 10-day deadline is not met, the trial court can elect various 

remedies short of exclusion, including granting a continuance.” 

Harris v. State, 313 Ga. 653, 666 (872 SE2d 732) (2022). Moreover, 

“[t]he State may be prohibited from introducing evidence that was 

 12 We assume without deciding that the trial court’s refusal to exclude 

the evidence of the cell phone data is subject to plain error review under OCGA 

§ 24-1-103 (d).
52

not timely disclosed only upon a showing of both prejudice to the 

defendant and bad faith by the State.” Id. (cleaned up). We review a 

trial court’s decision under OCGA § 17-16-6 for an abuse of 

discretion. See Wyatt v. State, 300 Ga. 509, 511 (796 SE2d 701) 

(2017). 

Muse and Darious have not shown clear error because they 

have not shown that if they had timely objected to the lack of proper 

notice, the exclusion of the evidence would have been required. Here, 

when Muse and Darious made their untimely objection, they did not 

make any argument, or offer any evidence showing, that the 

prosecution had acted in bad faith in failing to provide timely notice 

of the cell phone data. Moreover, the trial court granted them a 

continuance from 10:00 a.m. Friday morning until trial reconvened 

on Monday. That Friday morning, the prosecutor provided defense 

counsel with the cell phone data, and the trial court informed 

defense counsel that, on Monday, they could present any evidence 

regarding the data that they needed to. When the trial reconvened 

on Monday, Muse and Darious did not claim that they had an 
53

inadequate amount of time to review Muse’s cell phone data. Under 

these circumstances, we cannot conclude that if Muse and Darious 

had made a timely objection, the trial court would have excluded the 

evidence instead of granting a continuance or fashioning some other 

remedy, as permitted by OCGA § 17-16-6. Muse and Darious 

therefore have not satisfied their burden to show clear error. See 

Grier, 313 Ga. at 242-243 (holding that, under plain error review, 

the defendant failed to show clear error for lack of timely notice 

regarding a witness’s testimony because the exclusion of the 

witness’s testimony would not have been required had the defendant

made a timely objection given that “absent a showing of prejudice to 

the defendant and bad faith by the State, the ordinary remedy for 

failure to comply with a requirement that a witness must be 

identified prior to trial is simply a continuance to allow for an 

interview of the witness” and given that “we assume that the trial 

court would have followed the law if an objection to notice had been 

made”). 
54

8. In their motions for new trial, Muse and Darious claimed 

that they were entitled to a new trial on the ground that the State 

violated their due process rights under Brady v. Maryland, 373 U.S. 

83 (83 SCt 1194, 10 LE2d 215) (1963), by failing to disclose before 

trial evidence of the text messages and other data extracted from

Muse’s cell phone. The trial court rejected these claims, and on 

appeal, Muse and Darious contend that the trial court erred in doing 

so. We disagree. 

To prevail on their Brady claims, Muse and Darious must show

that 

(1) the State possessed evidence favorable to [their]

defense; (2) [they] did not possess the favorable evidence 

and could not obtain it [themselves] with any reasonable 

diligence; (3) the State suppressed the favorable evidence; 

and (4) had the evidence been disclosed to the defense, a 

reasonable probability exists that the outcome of the trial 

would have been different.

Harris v. State, 313 Ga. 653, 664 (872 SE2d 732) (2022) (cleaned up). 

“The burden of proof on these elements lies with the defendant.” Id. 

“To establish the fourth prong, often referred to as materiality, a 

defendant does not need to show that he necessarily would have 
55

been acquitted, but only that the State’s evidentiary suppression 

undermines confidence in the outcome of the trial.” Anglin v. State, 

312 Ga. 503, 510 (863 SE2d 148) (2021) (cleaned up). Moreover, “[i]n 

the case of an untimely disclosure, a defendant must show that an 

earlier disclosure would have benefited the defense and that the 

delayed disclosure deprived him of a fair trial” or “materially 

prejudiced his defense.” Id. at 510-511 (cleaned up). “On appeal, we 

review a trial court’s factual findings regarding a Brady claim for 

clear error but review de novo the court’s application of the law to 

the facts.” Downer v. State, 314 Ga. 617, 633 (878 SE2d 537) (2022).

As for Muse’s Brady claim, the trial court denied it, ruling that 

Muse “made no showing that the cellphone extraction was favorable 

to his case.” On appeal, Muse does not point to any data extracted 

from his phone that he contends was exculpatory, and we conclude 

that Muse has failed to carry his burden to show that the evidence 

was exculpatory. In fact, the messages to which Investigator 

Watkins testified were highly inculpatory, showing Muse’s 

involvement with the Nine Trey Bloods and his concern, shortly 
56

after the crimes, with moving “that stick,” with the news, and with 

“7/62 by 39” ammunition. Accordingly, we conclude that Muse’s 

Brady claim is without merit. See Hall v. State, 286 Ga. 358, 360-

361 (687 SE2d 819) (2010) (holding that the defendant’s Brady claim 

was without merit because he failed to show that the State 

possessed evidence favorable to him). 

With regard to Darious’s Brady claim, the trial court noted that 

the cell phone extraction contained information favorable to Darious 

in that his name was not found on Muse’s phone. It ruled, however, 

that, even assuming that the evidence was not disclosed pretrial but 

only during trial, Darious had not shown that the delayed disclosure 

deprived him of a fair trial because Darious used the “favorable 

information from the cellphone extraction—i.e., his absence from 

Muse’s cellphone data—to distance himself from Muse . . . at trial.” 

We conclude that the trial court did not err. 

At trial, after Appellants claimed that they had not received

the information extracted from Muse’s phone before trial, the trial 

court granted a continuance from 10:00 a.m. Friday morning until 
57

trial reconvened on Monday. The trial court also informed defense 

counsel that, on Monday, they could present any evidence regarding 

the “phone dump” that they needed to. That Monday, Appellants did 

not present any evidence regarding Muse’s phone records. But, in 

closing argument, Darious’s counsel noted that the State had 

presented “a ton of phone records for Durell Muse,” and argued that 

“[t]here’s no indication my client knew Durell Muse . . . . No 

indication at all. Diablo does not appear on his contacts list. Darious 

Harris doesn’t appear on his contacts list. Darious Harris’s face does 

not appear in any of the videos that you were presented.”

On appeal, Darious contends that the exculpatory evidence 

from the “phone dump” was that “the phone records did not contain 

any reference to [him].” As the foregoing discussion of closing 

arguments shows, Darious highlighted the relevant exculpatory 

evidence for the jury in closing. Accordingly, we conclude that 

Darious has failed to carry his burden to show that any delayed 

disclosure “materially prejudiced him or deprived him of a fair trial.” 

Anglin, 312 Ga. at 512-513 (holding that the defendant’s claim that 
58

the delayed disclosure of certain evidence violated Brady was 

without merit because the defendant was able to establish the point 

that he wanted to make with that evidence through the use of other 

evidence and therefore “failed to establish that the delayed 

disclosure materially prejudiced him or deprived him of a fair trial”). 

9. Darious contends that the State violated OCGA § 17-16-8 

and his due process rights by failing to disclose McKenzie as a 

witness at least ten days before trial13 and that the trial court abused 

its discretion by failing to exclude McKenzie’s testimony. We 

disagree. 

(a) We have stated that the requirements of § 17-16-8 (a) are

designed to prevent a defendant from being surprised at 

trial by a witness that the defendant has not had an 

opportunity to interview. Moreover, the trial court may 

 13 OCGA § 17-16-8 (a) provides:

The prosecuting attorney, not later than ten days before trial, . . . 

shall furnish to the opposing counsel . . . the names, current 

locations, dates of birth, and telephone numbers of that party’s 

witnesses, unless for good cause the judge allows an exception to 

this requirement, in which event the counsel shall be afforded an 

opportunity to interview such witnesses prior to the witnesses 

being called to testify.
59

allow an exception to the rule where good cause is shown 

and counsel is afforded an opportunity to interview the 

witness.

Hines v. State, 313 Ga. 1, 4 (867 SE2d 85) (2021) (cleaned up). Here, 

the trial court determined that the State had established good cause 

for not complying with the statutory requirements and ensured that 

Darious was given an opportunity to interview McKenzie. On the 

third day of trial, just before the State was going to call McKenzie to 

testify, Jujuane objected to him testifying, stating that the State had 

not timely disclosed McKenzie as a witness.14 Jujuane argued that 

the late notice did not comply with discovery requirements and that 

the trial court should exclude his testimony. In response, the 

prosecutor stated that she had only discovered McKenzie as a 

witness the same week that she had provided his name and birth 

date to defense counsel and that she had provided that information 

 14 Darious did not specifically join in Jujuane’s objection. However, at the 

beginning of trial, Darious’s counsel stated that when one of defense counsel 

objected, the others would all adopt the objection unless it was separately noted 

for the record. The trial court responded, “All right.” The State does not contend 

that Darious failed to preserve this issue for appeal, and we assume for

purposes of this appeal that the issue was properly preserved. 
60

ten days before trial. Defense counsel did not dispute that the State 

had only discovered McKenzie shortly before trial, but contended 

that the notice of McKenzie as a witness was provided just ten days 

before he was called as a witness at trial and that the State had not 

provided his phone number and address, as required by OCGA § 17-

16-8 (a).15 The record also shows that Darious was afforded the 

opportunity to interview McKenzie before he was called as a witness, 

but that McKenzie declined to be interviewed. The trial court denied 

the motion to exclude McKenzie from testifying, noting that defense 

counsel had been given an opportunity to interview him. Also, as a 

condition for permitting McKenzie to testify, the trial court required 

the State to provide defense counsel with a printout of McKenzie’s 

criminal history, which the State did. Under these circumstances, 

we conclude that the trial court did not abuse its discretion in 

allowing an exception to the requirements of OCGA § 17-16-8 (a).

 15 In its order denying Darious’s motion for new trial, the trial court 

found that McKenzie’s name was not provided as a witness at least ten days 

before trial, but ruled against Darious’s claim that the court had erred in 

permitting Darious to testify. 
61

See Hines, 313 Ga. at 2-4 (holding that the trial court did not abuse 

its discretion in determining that there was good cause for a latedisclosed witness to testify where the prosecutor told the court on 

the morning of the first day of trial that he had only that morning 

become aware of the witness’s name and contact information and 

had given defense counsel an opportunity to speak with the witness); 

Norris v. State, 289 Ga. 154, 157 (709 SE2d 792) (2011) (holding that 

the trial court did not abuse its discretion in denying a continuance 

for the State’s late disclosure of certain witnesses in part because, 

even though the witnesses “declined an interview, as was their 

prerogative,” the defendant had been given the opportunity to 

interview them (cleaned up)). 

(b) Darious also contends that the untimely disclosure of 

McKenzie as a witness violated due process but this claim was not 

raised at trial, and we therefore review it only for plain error. See 

OCGA § 24-1-103 (d). Darious’s sole argument on this point is that 

“[t]he untimely disclosure was a due process violation. Smith v. 
62

Estelle, 602 F2d 694 (5th Cir. 1979).”16 Smith, however, involved 

considerations unique to the penalty phase of a death penalty trial

and is easily distinguishable from this case. There, the State failed 

to disclose that a psychiatrist who had interviewed the defendant 

before trial would appear as a witness at the death penalty phase of 

the defendant’s trial. The trial court permitted the psychiatrist to 

testify, and he gave damaging testimony about the defendant’s 

future dangerousness. See id. at 696-697. The Fifth Circuit held that 

permitting the psychiatrist to testify violated due process, 

explaining that the “informality and relaxed procedures” that 

permitted the testimony could not “possibly outweigh the risk that 

the state may execute a person who would not have been sentenced 

to death if the jury had had full and accurate sentencing information 

an indispensable prerequisite to a reasonable determination of 

 16 Darious does not cite to either the Georgia or United States 

Constitutions to support this due process claim, but simply cites to the Smith 

case. Because that case involved a claim under the United States Constitution, 

we do not analyze Darious’s claim under the Georgia Constitution’s Due 

Process Clause. See Ga. Const. of 1983, Art. I, Sec. I, Par. 1. 
63

whether a defendant shall live or die.” Id. at 702 (cleaned up).17

Darious fails to acknowledge that “[t]here is no general 

constitutional right to discovery in a criminal case.” Weatherford v. 

Bursey, 429 U.S. 545, 559 (97 SCt 837, 51 LE2d 30) (1977). Accord 

Bello v. State, 300 Ga. 682, 683 (797 SE2d 882) (2017) (quoting 

Weatherford for that proposition). In Weatherford, the defendant

argued that due process required the prosecution to disclose before 

trial the names of witnesses who would testify against him and 

prohibited the prosecutor from presenting at trial the surprise 

testimony of an undercover agent. See id. The Court in Weatherford

rejected that argument. See id. at 559-561. We have held, however,

that due process may require that the accused upon timely request 

be afforded a meaningful opportunity to have “critical evidence

whose nature is subject to varying expert opinion” examined by his 

own lawyers and experts before trial. Sabel v. State, 248 Ga. 10, 18 

(282 SE2d 61) (1981) (holding that due process demanded that the 

 17 The decision of the Fifth Circuit was affirmed on other grounds by the 

United States Supreme Court. See Estelle v. Smith, 451 U.S. 454, 462 (101 SCt 

1866, 68 LE2d 359) (1981).
64

accused be afforded an opportunity to have paint samples that were 

subject to varying expert opinions examined by an expert of his 

choosing). Accord Reaves v. State, 284 Ga. 181, 190 (664 SE2d 211) 

(2008) (explaining that the defendant was not “entitled to have an 

expert examine evidence such as a tape recording unless it 

constitutes critical evidence whose nature is subject to varying

expert opinion” (cleaned up)). Here, however, because McKenzie’s 

testimony did not involve “critical evidence whose nature is subject 

to varying expert opinion,” Sabel, 248 Ga. at 18, the due process 

principles of Sabel do not apply. 

In sum, Darious has pointed to no controlling authority holding 

that due process required the State to disclose McKenzie as a 

witness before trial. He has therefore failed to carry his burden to 

show clear error. See Williams v. State, ___ Ga. ___ (___ SE2d ___) 

(2023 WL 3468114, at *3 (May 16, 2023) (“As to the second part of 

the [plain error] test, an error is plain if it is clear or obvious under 

current law. An error cannot be plain where there is no controlling 

authority on point or if a defendant’s theory requires the extension 
65

of precedent.” (cleaned up)); Grier, 313 Ga. at 240-241 (holding that 

under the second part of the plain error test, a defendant must point 

to an error that is “clear and not open to reasonable dispute”); Ash 

v. State, 312 Ga. 771, 794-795 (865 SE2d 150) (2021) (holding that 

the trial court’s failure to give a portion of a jury instruction was not 

plain error, in part, because the defendant “has pointed to no 

precedent holding that the omission of this sentence from the 

pattern instruction constitutes error under these circumstances.”).

10. Darious and Jujuane contend that the trial court erred in 

denying their motions to sever their trials from their co-defendants 

and each other. We disagree. 

“In a murder case where the death penalty is not sought, the 

trial court has broad discretion to grant or deny a motion for 

severance.” Hurston v. State, 310 Ga. 818, 825 (854 SE2d 745) 

(2021). 

In ruling on a motion to sever, a trial court should 

consider: (1) the likelihood of confusion of the evidence 

and law; (2) the possibility that evidence against one 

defendant may be considered against the other defendant; 

and (3) the presence or absence of antagonistic defenses.
66

Collins v. State, 312 Ga. 727, 735 (864 SE2d 85) (2021) (cleaned up). 

“When claiming on appeal that a trial court abused its discretion in 

denying a severance motion, a defendant must do more than show 

the presence of antagonistic defenses or possibility that a separate 

trial would give a defendant a better chance of acquittal.” Sillah, 315 

Ga. at 750 (cleaned up). Rather, “[t]he defendant must make a clear 

showing that the joint trial was so prejudicial as to amount to a 

denial of his right to due process.” Id. (cleaned up). 

Darious and Jujuane both argue that there was a likelihood of 

confusion of the evidence and that prejudicial gang evidence against 

Rosenau and Muse spilled over to them. In this vein, Jujuane also 

argues that the evidence against his co-defendants was more 

substantial than the evidence against him, pointing to the lack of 

evidence that he possessed a firearm. 

With regard to whether the jury might have become confused 

regarding the evidence, we have concluded it is unlikely that a jury 

would confuse the evidence where, as here, co-defendants are 
67

“charged with the same offenses stemming from the same incident 

with largely the same evidence; the jury was instructed to determine 

guilt or innocence of each defendant separately; the jury returned a 

separate verdict for each defendant; and the jury was instructed on 

mere association, mere presence, and parties to a crime.” Draughn 

v. State, 311 Ga. 378, 386-387 (858 SE2d 8) (2021). Moreover, “the 

fact that the evidence as to one of the co-defendants is stronger does 

not demand a finding that the denial of a severance motion is an 

abuse of discretion, where there is evidence showing that the 

defendants acted in concert.” Smith v. State, 308 Ga. 81, 86-87 (839 

SE2d 630) (2020) (cleaned up). 

As for Jujuane’s contention that he should not have stood trial 

with the other three co-defendants because the State did not offer 

evidence that he possessed a firearm and was a shooter, we have 

concluded that this factor does not require severance where the 

State presents evidence, as here, that “co-defendants acted in 

concert,” making it unnecessary “under the applicable law on party 

to a crime to show that any specific co-defendant physically 
68

possessed a weapon for that defendant to be convicted.” Id. at 86. 

With regard to Darious’s and Jujuane’s claim that gang evidence 

relating to Muse and Rosenau spilled over to them, we note that 

McKenzie and Sergeant Gaither testified that Darious and Jujuane 

were members of the Bloods gang, and some evidence of Rosenau’s 

and Muse’s gang membership would likely have been admissible 

against Jujuane in a separate trial given that the State’s theory 

under the street gang count was that members of the Bloods gang 

acted in concert to attack members of the Crips gang over a dispute. 

See Saylor, ___ Ga. at ___ (2023 WL 3183590, at *5) (holding that 

gang evidence against two co-defendants did not warrant a 

severance as some evidence regarding those co-defendant’s gang 

activity would likely have been admissible in a separate trial based 

on the State’s theory on the gang count of the indictment that the 

defendants acted in concert as gang members and as “there is no 

clear showing that this evidence prejudiced [the defendant] given 

the evidence of [his] gang membership”).
69

Moreover, Darious and Jujuane have not shown that their codefendants’ defenses were antagonistic to theirs. Darious and 

Jujuane both acknowledged that they were at the crime scene and 

that they knew members of the Bloods gang, but claimed that they 

did not participate in any plan to commit the crimes and did not 

shoot at members of the Crips gang. Darious and Jujuane did not 

implicate each other in the crimes. Muse, meanwhile, admitted 

being a member of the Bloods gang, but denied being present at the 

crime scene and did not implicate Darious and Jujuane as being 

members of the Bloods or as being participants in the shooting. 

Forehand’s defense, like those of Darious and Jujuane, was that she 

was present at the crime scene but that she did not participate in or 

plan the shooting. Like Muse, Forehand did not testify that she saw 

Darious or Jujuane shoot at anyone. See Young v. State, 315 Ga. 208, 

213 (881 SE2d 689) (2022) (holding that the defendants “did not 

raise antagonistic defenses, such as each one saying the other shot 

[the victim]”). Finally, Darious and Jujuane have not shown how any 

potential antagonistic defenses prejudiced their trials. See Krause v. 
70

State, 286 Ga. 745, 750 (691 SE2d 211) (2010) (“[U]nless there is a 

showing of resulting prejudice, antagonistic defenses do not 

automatically require a severance.” (quoting Green v. State, 274 Ga. 

686, 688 (558 SE2d 707) (2002)). 

For the foregoing reasons, we conclude that Darious and 

Jujuane have failed to make the clear showing that being tried with 

their co-defendants and each other was so prejudicial as to amount 

to a denial of due process.

11. Muse contends that his trial counsel was constitutionally 

ineffective in failing to object to hearsay testimony by Davis 

regarding statements that Bell made at the crime scene to a law 

enforcement officer and later to her. Even assuming that counsel did 

fail to object to Davis’s testimony, we disagree. 

To establish that his trial counsel was constitutionally 

ineffective, Muse was required to prove both deficient performance 

by counsel and resulting prejudice. See Strickland v. Washington, 

466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). To show that 

his lawyer’s performance was deficient, Muse had to demonstrate 
71

that the lawyer performed his duties in an objectively unreasonable 

way, considering all the circumstances and in the light of prevailing 

professional norms. See id. at 687-688. The law recognizes a “strong 

presumption” that counsel performed reasonably, and the defendant 

bears the burden of overcoming this presumption. Id. at 689. To 

carry this burden, Muse must show that “no reasonable lawyer 

would have done what his lawyer did, or would have failed to do 

what his lawyer did not.” Washington v. State, 313 Ga. 771, 773 (873 

SE2d 132) (2022) (quoting Davis v. State, 299 Ga. 180, 183 (787 

SE2d 221) (2016)). Even when a defendant has proved that his 

counsel’s performance was deficient, he also must prove resulting 

prejudice by showing “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would 

have been different.” Strickland, 466 U.S. at 694. Moreover, “there 

is no reason for a court deciding an ineffective assistance claim . . . 

to address both components of the inquiry if the defendant makes 

an insufficient showing on one.” Id. at 697.
72

We pretermit whether trial counsel performed deficiently in 

failing to make hearsay objections to Davis’s testimony, as Muse 

cannot show the requisite prejudice. In this regard, Muse first 

contends that trial counsel should have objected to Davis’s 

testimony that, on the night of the crimes, Bell gave the same 

account to law enforcement officers of what happened as she did.18

Muse also contends that trial counsel performed deficiently in 

failing to object to Davis’s testimony that she and Bell discussed 

whether he wanted to come to court to testify. Davis testified that 

Bell “didn’t say [that he wanted to come] all of the time, but he was 

coming.”19 Muse contends that Davis’s hearsay testimony added 

extra weight to the State’s case and prejudiced his defense. 

But, with regard to Davis’s testimony that Bell’s statement on 

the night of the crimes to law enforcement officers was the same as 

 18 Davis did not testify about what she told law enforcement officers on 

the night of the crimes, but the parties agree that the State, with this question 

to Davis about Bell’s statement on the night of the crimes, was attempting to 

establish that on the night of the crimes Bell told law enforcement officers that 

a bullet struck their car. 

19 On direct examination, Bell was asked by the State if he wanted “to 

come here today” to testify. Bell responded that he “would rather not, because 

[he] work[ed] at night.”
73

hers, Davis unequivocally testified that a bullet struck the car in 

which she and Bell were riding, and Bell testified that he merely 

“assum[ed]” that a brick hit the car, that a bullet could have hit the 

windshield, and that he did not “know what the object was.” In 

addition, Bell acknowledged that at the time an object hit their 

windshield, “a lot of shooting started” and that he ducked down, 

“went into defense mode,” was “trying to get out of harm’s way,” and 

was “trying not to get shot.” Finally, the jury heard evidence that 59 

shots were fired that night, and the evidence showed that they were 

fired in the direction of Bell’s car. Given this evidence, we conclude 

that Muse has failed to establish that, even if counsel had raised a 

hearsay objection and the trial court had excluded Davis’s testimony 

about Bell’s statement on the night of the crimes, there is “a 

reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Strickland, 

466 U.S. at 694. See Payne v. State, 314 Ga. 322, 330 (877 SE2d 202) 

(2022) (holding that even if counsel was ineffective in failing to 

object to hearsay evidence, the defendant failed to show prejudice 
74

because the hearsay evidence was cumulative of other evidence 

admitted at trial). 

In addition, Muse makes no specific argument about how 

Davis’s testimony—that Bell said that he was reluctant to testify, 

but would nevertheless come to court and do so—was prejudicial. 

We conclude that Muse has failed to establish that, if counsel had 

objected to this testimony and the trial court had excluded it from 

evidence, “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694. Finally, we conclude that the 

cumulative prejudice from the assumed deficiencies is insufficient to 

show a reasonable probability that the results of the proceedings 

would have been different in the absence of the alleged deficiencies.

See Jones v. State, 305 Ga. 750, 757 (827 SE2d 879) (2019) 

(explaining that “the effect of prejudice resulting from counsel’s 

deficient performance is viewed cumulatively”).20

 20 In addition to the two assumed deficiencies on the part of Muse’s trial 

counsel, we have concluded that the trial court made two errors regarding 
75

11. Darious contends that he is entitled to a new trial because 

“the State now concedes that ‘the record as it currently stands does 

not truly or fully disclose what transpired in the trial court.’” We 

disagree. 

The “concession” to which Darious refers was made in a motion 

to reconstruct the record filed by the State before the second hearing 

on the motion for new trial. The motion alleged that the transcript 

did not accurately reflect the discussion between the court and 

counsel regarding the second and third jury notes. At the hearing, 

testimony was taken regarding those discussions. Moreover, the 

transcript filed on appeal does contain the discussion between the 

 

Appellants’ right to counsel when discussing the jury notes. Muse, however, 

has not raised a cumulative-error claim, and neither have Darious and 

Jujuane. Even assuming that these errors should be considered cumulatively, 

we conclude that Muse and the Harris brothers have failed to establish 

cumulative prejudice in this case. See Priester v. State, ___ Ga. ___ (___ SE2d 

___) (2023 WL 2975644, at *5 n.5) (Apr. 18, 2023) (“Appellant has not raised a 

cumulative-error claim, and we discern no cumulative prejudice from the 

evidentiary and instructional errors we assume.”); Jones v. State, 314 Ga. 605, 

617 n.9 (878 SE2d 505) (2022) (explaining that where a defendant seeks a new 

trial “based on the cumulative effect of errors outside of the evidentiary 

context, he would do well to explain why cumulative error should be extended 

beyond the evidentiary context” (cleaned up)). 
76

court and counsel regarding the third jury note. See Div. 5 (a) above. 

To the extent that Darious is contending that the State’s mere 

allegation in its motion that the record was incomplete requires a 

new trial, Darious failed to preserve the issue for appeal because he 

could have but did not raise that issue during the second motion-fornew-trial hearing at which the parties offered evidence relevant to 

reconstructing the record. See Benton, 300 Ga. at 205. Moreover, to 

the extent that Darious is contending that he is entitled to a new 

trial because he has been “deprived of an adequate trial transcript” 

for appeal and therefore “has effectively been denied his right to 

appeal,” Gadson v. State, 303 Ga. 871, 877 (815 SE2d 828) (2018), 

we disagree. Here, the only jury-note discussion missing from the 

transcript is the discussion regarding the second note. And if, as 

here, “an otherwise verbatim transcript is missing only one or a few 

parts of the trial, the appellant is not entitled to a new trial unless 

he alleges that he has been harmed by some specified error involving 

the omitted part and shows that the omission prevents proper 

appellate review of that error.” Id. at 878. Darious has failed to make 
77

that showing here, as this Court was able to determine that any 

violation of Darious’s right to counsel relating to the second note was 

harmless and that there was no violation of his right to be present 

for the discussion of that note. See Div. 5 (c), (d) above. Accordingly, 

this claim is without merit. 

Judgments affirmed. All the Justices concur.