In the Supreme Court of Georgia

Decided: November 2, 2021

S21A0771. ASH v. THE STATE.

 BETHEL, Justice.

A Fulton County jury found Jabarri Ash guilty of malice 

murder and other crimes arising from the shooting death of Mario 

Shaw. On appeal, Ash argues that the trial court erred by admitting 

evidence of his prior convictions pursuant to OCGA § 24-4-404 (b);

that the trial court erred by admitting, pursuant to OCGA § 24-8-

807, evidence of certain statements made by Shaw; that the State 

improperly destroyed exculpatory evidence; that the trial court 

plainly erred in its instructions to the jury; and that the cumulative 

harm of these errors affected the trial’s outcome such that he should 

receive a new trial. For the reasons set forth below, we affirm.1

 1 The crimes occurred on February 21, 2013. On June 28, 2013, a Fulton 

County grand jury returned an indictment against Ash charging him with 
2

1. The evidence presented at trial showed the following.2 Ash, 

Shaw, Brian Terrell, David Minor, and Jonathan Ash (Ash’s brother) 

were friends who grew up together in Atlanta. Beginning in high 

school, they were in the business of selling cocaine and marijuana.

Ash was known to carry a .44- or a .38-caliber revolver. Terrell 

testified that Ash was known by the nicknames “Big” and “Big Boy” 

because “he was the biggest person around.” Jonathan drove a white 

SUV that Ash also drove from time to time.

 

malice murder (Count 1), felony murder (Counts 2 and 3), aggravated assault 

with a deadly weapon (Count 4), possession of a firearm by a convicted felon 

(Count 5), and possession of a firearm during the commission of a felony (Count 

6). A jury trial held from August 25 to September 2, 2015, ended in a mistrial. 

Ash was later re-tried from March 15 to March 25, 2016, and the jury found 

him guilty of all counts. On March 30, 2016, the trial court sentenced Ash to 

life in prison on Count 1 and terms of five years in prison each on Counts 5 and 

6, to be served concurrently with Count 1. The remaining counts were merged 

for sentencing or vacated by operation of law. On April 4, 2016, Ash filed a 

motion for new trial, which he amended through new counsel on June 21, 2019, 

and February 17, 2020. The trial court held two hearings on the motion, as 

amended, and denied the motion on December 7, 2020. Ash filed a notice of 

appeal on December 28, 2020. This case was docketed in this Court to the term 

commencing in April 2021, and oral argument was held on June 9, 2021. 

2 Because, as discussed below, we must determine whether an assumed 

error on the part of the trial court was harmless, “we review the evidence de 

novo and weigh it as a reasonable juror would, rather than reviewing it in a 

light most favorable to upholding the jury’s verdicts of guilty.” (Citation 

omitted.) Taylor v. State, 306 Ga. 277, 283 (2) (830 SE2d 90) (2019).
3

In December 2012, Jonathan was driving his SUV with Shaw 

in the passenger seat when they were stopped by the police at a DUI 

checkpoint. After smelling unburnt marijuana and seeing

marijuana and an open container of alcohol on the rear floorboard of 

the SUV, the police arrested Jonathan and Shaw and searched 

them. The police found marijuana and $1,004 in cash on Shaw’s

person. Jonathan had over $10,000 in cash, but he had no drugs on 

his person. Because the marijuana appeared to be packaged for 

distribution, the police charged both men with possession of 

marijuana with intent to distribute and impounded the SUV.3

Jonathan was again arrested in January 2013 for aggravated 

battery and armed robbery. At the time of the arrest, Jonathan had 

more than $75,000 in cash in a shoebox in his vehicle, a red sedan.

The group used Jonathan’s house to store drugs. Shaw told 

Terrell that he was at the house when he heard that the police had 

arrested Jonathan. Apparently anticipating a search, Shaw 

 3 A police officer testified that no “hold” was placed on the vehicle after 

it was impounded.
4

retrieved what he thought were all of the illegal drugs in the house

and took them to his mother’s house. The police later searched

Jonathan’s house. During the search, the police found 16 ounces of 

cocaine, 13 ounces of marijuana, two jars containing marijuana 

residue, and 29 Ecstasy pills in the house. At some point following 

the search of Jonathan’s house, Shaw returned the drugs, but Ash 

accused him of not returning all of the drugs he had taken.

Terrell talked with Shaw about being arrested with Jonathan, 

and Terrell was among those (including Ash) who thought that 

Shaw should “take the charge” and exonerate Jonathan. In their 

conversation, Shaw said that he knew Ash blamed him for 

Jonathan’s arrests and that Ash believed the drugs in Jonathan’s 

SUV and house actually belonged to Shaw. According to Terrell, Ash

and Shaw had a “heated” conversation about the drugs. Ash was 

“upset” with Shaw for not taking the blame for the drugs. Even after 

Shaw took the drugs from the house before the police search, Shaw 

told Terrell that he thought Ash was still “upset” with him. Despite 

his anger with Shaw, Ash continued to provide Shaw with drugs to 
5

sell.

In early February 2013, Letavia Gowdy and her mother,

Denise Gowdy, moved into Shaw’s apartment. Shaw sold marijuana 

at the apartment, and he told Letavia and Denise to lock all the

doors when they left the apartment. Denise testified that people 

were regularly coming to the apartment to buy drugs when Shaw 

was there.

Denise testified that, during the first week she was staying in 

the apartment, Ash, whom she only knew as “Big Boy” at the time,

visited Shaw three times.4 On the first visit, Ash and Shaw had a 

“tense” and “hostile” argument regarding an incident between Shaw 

and Ash’s brother. On the second visit, Shaw did not allow Ash into 

 4 During an interview with the police, Denise viewed a six-person 

photographic lineup prepared by the police. Denise identified one of the

photographs as a person she said looked like “Big Boy.” The detective who 

conducted the photo lineup testified that Denise identified Ash in the lineup, 

and the lineup with Denise’s identification of “Big Boy” was admitted into 

evidence at trial. Denise was also able to show the police where Ash lived. His 

apartment was roughly a ten-minute drive from Shaw’s apartment, which 

Denise knew because she had gone there with Shaw. Denise told the police and 

testified at trial that “Big Boy” wore glasses and was “overweight” with a 

“caramel” complexion. At trial, Denise identified Ash as “Big Boy” by pointing 

him out in the courtroom.
6

the apartment. On the third visit, Denise told Ash that Shaw was 

not there. On that visit, Denise saw a white SUV parked outside.

Denise described Shaw as “paranoid and annoyed” after Ash’s visits, 

and she testified that she knew there were “issues” and “concerns” 

between them. Letavia also noticed that Shaw’s demeanor changed 

during this time. When she first met Shaw in early February, he was 

“very nice,” but Letavia testified that he smiled less and seemed to 

spend more time “in deep thought” by the middle of the month.

Letavia and Denise last saw Shaw alive around 7:00 or 8:00

p.m. on February 20, 2013, when Denise took Letavia to work. When 

Letavia returned to the apartment around 3:30 a.m. on February 21, 

she saw that the doors to the apartment were unlocked. She went

inside and saw Shaw lying on the floor with blood pooled around his 

head. She also saw marijuana in the apartment. She did not see 

anything out of place, and the apartment did not appear to have 

been ransacked or robbed. She went outside, arranged a ride to the

house of a friend, and called 911 just before 4:00 a.m. Her friend took 

her back to Shaw’s apartment, and they arrived as firefighters were 
7

pulling into the complex. Denise also returned to the apartment 

around 4:00 a.m.

Several police officers responded to the 911 call. Inside the 

apartment, Shaw was dead, lying face down with his hands under 

his body. The medical examiner determined that Shaw was shot 

twice, once in the back of his head and once in his left lower torso. 

The medical examiner recovered two bullets from Shaw’s body, and 

a GBI firearms examiner determined that the same firearm fired 

both bullets from what was either a Ruger, Colt, or High Standard 

.38 Special revolver or a .357 Magnum revolver. The medical 

examiner concluded that Shaw’s death was caused by the gunshots 

to his head and torso and that the manner of death was homicide.

Prior to Shaw’s shooting, Roger Cook, the apartment complex’s 

security guard, often saw a man he knew as “Big Boy” visiting Shaw 

and driving a white SUV. In the weeks leading up to the shooting, 

Cook noticed that Shaw became “stressed” and “worried,” acted 

“strangely,” and began walking around with a handgun.

The night of Shaw’s shooting, Cook was watching television 
8

and playing videogames in his townhome, which was across the 

parking lot from Shaw’s apartment. Cook responded to a noise 

complaint and told a person in a white SUV parked in front of 

Shaw’s apartment to lower the music.5 Cook then began a foot patrol 

around the apartment complex and, moments later, saw “Big Boy” 

in the white SUV as it drove quickly past him.6 As he continued his 

 5 Cook spoke with the lead detective at the crime scene and at a later 

interview at the police station. Cook first stated that he spoke to the driver of 

the SUV when responding to the noise complaint around 1:00 a.m. but later 

said that it was between 2:30 and 3:00 a.m. Cook also said that the person he 

spoke to had glasses, a beard, and a “dark complexion.” Cook initially told the 

detective that he saw this man regularly but later said that he had never seen 

that person before and that he “[couldn’t] remember” and “[didn’t] know” the 

name or nickname of the man he spoke to. Cook also told the police that, while 

doing his rounds after speaking to the person in the SUV, he saw a man sitting 

in the driver’s seat of the SUV looking up at the apartment and then another 

man with a “light complexion” and “matching the description of Big Boy,” 

whom Cook “had seen before,” coming down the stairs of the apartment 

building and getting into the passenger side of the SUV. Cook said that he had 

previously seen this man coming to the apartment complex in a red Dodge 

Charger. The detective who interviewed Cook testified that when he 

interviewed Cook at the police station, some of his statements were consistent 

with what Cook had said at the scene, but some of them were not. The detective 

described Cook’s competing statements as “confusing.” During his crossexamination, Cook stated that the person he spoke to in the SUV was “Big 

Boy.” Cook described “Big Boy” as “broad, wearing black glasses with 

rectangular shading; beard smooth; smooth, clean cut; . . . curly, wavy hair.”

The lead detective testified that this description Cook gave of “Big Boy” was 

consistent with Ash’s appearance.

6 In its briefing, the State claims that Cook specifically identified Ash as 

the man in the SUV, but a careful review of the record shows that Cook never 
9

patrol, Cook saw that the front doors to Shaw’s apartment were wide 

open and the lights inside the apartment were on. Cook saw Shaw’s

body on the floor and attempted to call the police.7 Cook later 

realized that a sound he had heard earlier while he was playing

videogames was likely a gunshot.8

According to Nichole Stevens, Ash’s girlfriend at the time, Ash 

 

specifically identified Ash as “Big Boy” or as the man he saw in the white SUV 

the night of Shaw’s shooting. In addition, it appears that when shown a photo 

lineup with Ash’s picture in it, Cook said the man he saw on the night of Shaw’s 

shooting looked more like someone else in the lineup. Cook was not asked by 

the prosecutor or defense counsel whether “Big Boy” was present in the 

courtroom when he testified. During his direct examination, however, Cook 

testified that as the white SUV drove past him, he was standing on the driver’s 

side of the vehicle and that the area was well-lit. Cook testified that he was 

“absolutely sure” that “Big Boy” was driving the SUV as it sped away.

7 Cook testified that he had poor cell phone reception and that the call 

would not connect. He testified that he later realized that someone else had 

called 911 when paramedics and police responded to the scene. These 

statements appear to be contradicted by statements Cook made to the lead 

detective when he was interviewed at the scene; in those statements, Cook 

mentioned nothing about going up to Shaw’s apartment and suggested to the 

detective that he only learned that there had been a shooting at the complex 

when his brother knocked on his front door around 4:00 a.m.

8 During his testimony, Cook admitted that he had previously pled guilty 

to impersonating a law enforcement officer in Chicago, Illinois. He explained 

that in the 1990s, he worked with local police and bail bondsmen as a bounty 

hunter and indicated that he had been arrested because “different states 

recognize it, some states don’t” and that “Chicago didn’t allow bounty hunters 

or bail bondsmen.” Cook also admitted that he pled guilty in 2005 to a separate 

charge of impersonating an officer with the Fulton County Sheriff’s Office 

when he identified himself as “Officer Cook” while working as a security officer.
10

was at her apartment in Riverdale on the evening Shaw was shot. 

Stevens testified that they had a trip to Florida planned for the 

following morning and that they had been packing and preparing for 

it that day. At some point in the evening, Ash left the apartment and 

“went on about his evening.”

Between 9:00 and 10:00 p.m. that night, Terrell was at the 50 

Yard Line bar, which was about a ten-minute drive from Shaw’s 

apartment at that time of night. Terrell was selling marijuana and 

cocaine to several men he had met earlier in the week. They stayed 

at the bar for “three or four” hours and then left to play pool at the 

Brazilian Club near Camp Creek Parkway. Terrell returned to the 

hotel where he was staying around 3:00 a.m.

Ash called Terrell just before 3:00 a.m. and told him to come 

back to the 50 Yard Line bar. Terrell met him there around 3:30, 

and the two stayed there until about 4:00 a.m. Just after 4:00 a.m., 

Ash sent Stevens a text message saying that Shaw had been “found 

dead.” After Ash and Terrell left the 50 Yard Line, they went to the 

Brazilian Club. They stayed until about 5:30 a.m. During their time 
11

together, Ash did not mention anything about Shaw to Terrell. 

Terrell said that Ash was driving a black sedan that belonged to 

Stevens.

About 20 minutes after they left the Brazilian Club, Ash called 

Terrell and asked if he could leave for Florida that day. According to 

Terrell, this surprised him because he thought the trip was planned 

for the following day.9 Terrell testified that one of the purposes of 

the trip was to retrieve some cocaine that had been left with Minor 

(who lived in Jacksonville, Florida) a few days before.

After Ash left the Brazilian Club, he drove to Stevens’s 

apartment and showered and changed clothes. Stevens then washed 

the clothes Ash had been wearing with her other laundry. In an 

interview with the police and in her trial testimony, Stevens denied 

that she destroyed the clothes Ash had been wearing when he came 

to the apartment.10

 9 Terrell’s testimony appeared to contradict earlier statements he had 

made to the police in which he told Ash at the 50 Yard Line, “we got to be up 

and go in the morning if we supposed to be going.”

10 The lead detective testified that Stevens was not charged with murder 

or with tampering with evidence.
12

Ash and Stevens left the house later in the morning and, after 

picking up Terrell and his girlfriend, began driving to Jacksonville. 

During the drive, Ash and Terrell began receiving calls about Shaw 

being killed. According to Stevens, Ash and Terrell both reacted to 

the news with “shock” and “disbelief.” According to Terrell, this was 

the first time he had heard anything about Shaw’s death. After

overhearing the conversations, Stevens believed that Shaw’s murder

stemmed from “quarrels” or disagreements” involving Ash’s brother. 

The group continued driving to Jacksonville and arrived in the early 

afternoon.

Ash and Terrell met Minor, and the three drove around town 

together. Minor testified that, while the three were in the car 

together, Ash said that he had “finessed” Shaw by making him feel 

comfortable and letting him into his apartment and that he then 

killed Shaw by shooting him twice with a .44 or .38 revolver.11 Minor 

 11 At trial, Terrell first testified that when he, Ash, and Minor were 

together in Florida after Shaw’s shooting, Ash “didn’t say anything at all” 

about the shooting. Terrell later testified that he overheard a “heated” 

conversation in which Ash accused Minor of “finessing” some cocaine, meaning 
13

testified that Ash said he killed Shaw because of money that Shaw 

owed to Ash and because of “a charge that his brother caught when 

him and [Shaw] were together.” According to Minor, Ash was also 

angry with Shaw because he had given Shaw some cocaine but Shaw 

never paid him for it. When Ash confronted Shaw about this at his 

apartment, the two argued, Shaw refused to pay, and then Ash shot 

him twice. Minor testified that he was upset when he learned that 

Shaw had been killed but that Ash told him “You get what you get. 

What you give out is what you get in return, like karma.” Minor took 

this to mean that Ash was saying Shaw “got what he deserved.”

A few days after his conversation with Ash, Minor called the

Crime Stoppers anonymous tip line. He later spoke with the lead 

 

that he diluted it by adding another substance to it. In that conversation, 

Terrell also overheard Ash say something to Minor about “finessing” Shaw. 

Terrell explained, however, that the conversation was solely about adding 

substances to cocaine, not Shaw’s shooting. Terrell later testified that Ash and 

Minor were also “clashing” because Minor had slept with Ash’s girlfriend, 

Jasmine, a week or so before Shaw’s shooting. In his trial testimony, Minor 

admitted that he and Jasmine had sex a few days before Shaw was killed and 

that Ash had confronted him about it. Minor denied that he made up the story 

about Ash confessing to Shaw’s killing because of his relationship with 

Jasmine and denied that Ash had accused him of diluting drugs.
14

detective in the case to report that Ash had admitted killing Shaw.12

Minor told the detective that Ash said he shot Shaw twice with a 

revolver.13 Minor told the detective that Ash said he shot Shaw for 

“payback” for Jonathan being in jail for charges that Shaw should 

have taken.

Minor also told the detective he had seen Ash driving a white 

SUV when Ash visited him in Florida a few days before Shaw’s 

shooting. The detective testified that the description Minor gave of 

the SUV matched the description given by Cook and the Gowdys. 

Minor also told the detective that Stevens told him that, on the night 

 12 In his testimony, Minor acknowledged that people who provide tips 

that lead to an arrest or conviction may receive compensation and that he 

asked to be paid for providing the tip, but he denied that he needed money or 

that he reported the crime to get money. Minor explained that he called Crime 

Stoppers because he and Shaw were friends. The defense also introduced 

evidence that Minor pled guilty to grand theft in 2015 in Florida based on an 

incident in which he stole $1,180 from a gas station.

13 The detective testified that, other than the Gowdys and Cook, Minor 

was “one of the first” witnesses he spoke to about the shooting and that he was 

the first witness to provide any information about the type of gun that might 

have been used in the shooting. According to the detective, Minor’s statement 

that Ash had used a revolver was consistent with the evidence at the crime 

scene, where no shell casings had been recovered. The State presented 

evidence that when a revolver is fired, the shell casings remain in the chamber 

and are not automatically ejected as they would be when a pistol is fired.
15

of Shaw’s shooting, she washed the clothes Ash was wearing when 

he came to her house and “got rid of them, discarded them.”

Stevens was later interviewed at the police station. She first 

told the detective that Ash had been with her “24/7” from February 

19 to February 21 and that she last saw him on February 21 in 

Florida. The detective testified that he knew that the first statement 

was untrue because he had records of a text message that made it 

clear that Ash had been away from Stevens’ apartment on the night 

of Shaw’s shooting. The detective further testified that when he 

confronted Stevens with the text message, her demeanor changed 

and she “changed her story” and said that Ash came to her 

apartment between 3:30 and 4:00 a.m. the night of the shooting and 

wanted to wash his clothes. She also told the detective that there 

was conflict between Shaw and Ash over Jonathan and that the 4:00 

a.m. text message from Ash said that “Mario Shaw was found dead.”

The detective later confronted Stevens about whether 

February 21 was actually the last time she saw Ash. Stevens then 

admitted that, after the trip to Florida, she flew home to Atlanta but 
16

returned to Florida a few days later to retrieve $6,000 and see Ash.14

The detective testified that, following his interview of Stevens, 

Ash became the “prime suspect” for Shaw’s murder.15 Ash later 

agreed to be interviewed by the lead detective and another officer. 

On April 5, 2013, after being read the Miranda warnings,16 Ash said 

that he was with Stevens for all of February 20 and 21. When 

confronted with evidence that he had been away from Stevens 

during that time, he admitted that he had gone to the 50 Yard Line 

bar with Terrell around 7:00 p.m. on February 20 and stayed there 

with him until about 1:00 a.m. on February 21. He said that he then 

left to go home to wash his clothes and prepare for a trip to Florida. 

Ash said that he first heard about Shaw’s death around 4:00 a.m. 

from someone at the 50 Yard Line. He also told the detective he 

 14 At trial, Stevens testified that she flew back to Atlanta separately from 

the rest of the group a few days after they arrived in Jacksonville. When Ash 

returned to Atlanta, he was driving a rental car. According to Stevens, she 

returned to Florida in March to pick up around $1,900 for Ash. She did not 

elaborate as to where, why, or from whom she picked up the money.

15 The detective testified that Ash first became a suspect after the 

detective’s initial interview with Denise.

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

(1966).
17

returned to Stevens’s apartment around 4:00 a.m. When confronted 

by the detective with the text message he sent to Stevens, Ash told 

the detective that he was staying at a hotel that night but could not 

remember the name of the hotel. He then told the detective that he 

returned to Stevens’s apartment around 8:00 a.m. Ash denied ever 

having a gun, stating that he was a felon and could not possess one. 

Ash said that he and Shaw were “good friends” who “never had any 

beef with each other.” Ash first denied that he and Shaw sold drugs 

but later admitted that they were in the drug business.

The detective interviewed Terrell on April 8. He told the 

detective that Ash sometimes carried a Ruger revolver. The 

detective also testified that records showing the location of Terrell’s 

phone throughout the evening of February 20 and the morning of 

February 21 were consistent with Terrell’s statements about his 

whereabouts. After the interviews, the detective obtained an arrest 

warrant for Ash for Shaw’s murder.

At Ash’s trial, the State presented evidence of an altercation 

between Ash and Hulit Colton in May 2008. Colton confronted Ash, 
18

whom he had never met, after Ash tried to speak to Colton’s 

girlfriend on the street. Ash was sitting in his car and then “just 

started shooting” once Colton confronted him. Ash’s shots missed 

Colton and other bystanders but damaged a nearby car. Ash then 

drove away. The State introduced evidence that Ash pled guilty in 

June 2009 to two counts of aggravated assault, a felony, arising from 

this incident.

Ash elected not to testify. He called only one witness, a private

investigator who testified that, on a test drive around 3:00 p.m. on a 

recent weekday afternoon, it took him approximately 20 minutes to 

drive from Shaw’s apartment to the 50 Yard Line bar. On crossexamination, the investigator stated that there was more traffic at 

that time of day than there would be around 1:00 or 2:00 a.m.

2. Ash first argues that the trial court erred by admitting

evidence of his 2009 convictions as other acts pursuant to OCGA § 

24-4-404 (b). Before trial, the State gave notice of its intention to 

introduce evidence about the convictions and testimony from Colton 

about the incident. The State argued that it wanted to introduce this 
19

evidence for the purpose of showing Ash’s motive and intent with 

respect to Shaw’s murder and the other charges in this case. The 

State argued that the evidence demonstrated that “when [Ash] has 

been wronged, he responds with violence.” Over Ash’s objection, the 

trial court determined that the evidence could be admitted for the 

purposes of showing motive and intent.

After Colton testified at trial, the trial court gave a limiting 

instruction regarding his testimony. Although that charge indicated 

that some evidence could be used only for limited purposes, the trial 

court did not specify for what purposes Colton’s testimony or 

evidence of Ash’s convictions could be used.17 In its final charge to 

the jury before deliberations began, however, the trial court 

instructed as follows:

In order to prove its case in the indictment, the State 

must show intent. To do so, the State has offered evidence 

of another act allegedly committed by the accused. You 

are permitted to consider that evidence only insofar as it 

may relate to those issues and not for any other purpose. 

 17 In the instruction, the trial court stated that “[s]ometimes evidence is 

admitted for a limited purpose. Such evidence may be considered by the jury 

for the sole issue or purpose against that party for which the evidence is limited 

and not for any other purpose.”
20

You may not infer from such evidence that the defendant 

is of a character that would commit such an act. The 

evidence may be considered only to the extent that it may 

show the elements that the State is required to prove in 

the crimes charged in the case now on trial. Such 

evidence, if any, may not be considered by you for any 

other purpose. This defendant is on trial for the offenses 

charged in this bill of indictment only and not for any

other act. Before you may consider any other alleged act 

for the limited purposes stated, you must first determine 

whether the accused committed the other alleged act. If 

so, you must then determine whether the act sheds any 

light on the elements of the offense for which the act was 

admitted and the crimes charged in the indictment in this 

trial. Remember to keep in mind the limited use and the 

prohibited use of this evidence about another act of the 

defendant. By giving this instruction, the court in no way 

suggests to you that the defendant has or has not 

committed any other act nor whether such act, if 

committed, proves anything. This is solely a matter for 

your determination.

In his motion for new trial, Ash again challenged the 

admissibility of this evidence. The trial court again rejected Ash’s 

argument, and its order denying Ash’s motion for new trial stated 

that “the 2009 conviction is relevant to both motive and intent.”

Specifically, the trial court agreed with the State’s argument that 

the other acts evidence was “relevant to showing Ash’s intent to 

perpetuate violence by using a firearm when he feels he has been 
21

wronged” and relevant for motive because the evidence “help[s] 

demonstrate that Ash responds with violence, without reasonable 

concern for the consequences, if he feels publicly disrespected.” Ash 

contends that these evidentiary rulings were erroneous. 

“On appeal, a trial court’s decision to admit evidence pursuant 

to OCGA § 24-4-404 (b) is reviewed for a clear abuse of discretion.” 

Brannon v. State, 298 Ga. 601, 606 (4) (783 SE2d 642) (2016).

Under OCGA § 24-4-404 (b), ‘[e]vidence of other crimes, 

wrongs, or acts shall not be admissible to prove the 

character of a person in order to show action in conformity 

therewith,’ but such evidence is admissible for other 

purposes, including to prove intent and motive.

Kirby v. State, 304 Ga. 472, 479 (4) (819 SE2d 468) (2018). However, 

“[d]espite its inclusive nature, Rule 404 (b) prohibits the admission 

of such evidence when it is offered solely for the impermissible 

purpose of showing a defendant’s bad character or propensity to 

commit a crime.” (Citation omitted; emphasis in original.) Thompson 

v. State, 302 Ga. 533, 539 (III) (807 SE2d 899) (2017). 

Although the characterizations of the relevance of this 

evidence offered by the State and the trial court strongly suggest it 
22

was intended to demonstrate Ash’s propensity for violence, see 

Kirby, 304 Ga. at 487 (4) (b) (noting that evidence of a defendant’s 

“inclination” toward violence “is a classic improper propensity 

argument”), we need not decide whether the trial court abused its 

discretion by admitting this evidence, because any such error was 

harmless. The test for determining whether a nonconstitutional 

evidentiary error was harmless is whether it is highly probable that 

the error did not contribute to the verdict. See Jackson v. State, 306 

Ga. 69, 80 (2) (c) (829 SE2d 142) (2019). In conducting this harmlesserror review, “we review the record de novo and weigh the evidence 

as we would expect reasonable jurors to have done so.” (Citation 

omitted.) Id.

We first note that the trial court’s instructions to the jury 

indicated that the only specific purpose for which the evidence of the 

2009 incident and convictions could be considered was to show

intent. Thus, as Ash concedes, although the trial court ruled on 

multiple occasions that the evidence was also admissible to show 

motive, the jury was never instructed as to that use of the evidence, 
23

and the jury is presumed to follow the instructions of the trial court

absent clear evidence to the contrary. See Horton v. State, 310 Ga. 

310, 320 (3) (a) (849 SE2d 382) (2020). Ash has presented no 

evidence that the jury deviated from the trial court’s instructions

and considered this evidence in regard to motive. Thus, to the extent 

the trial court’s determination that the evidence was admissible as 

to the issue of motive constituted an abuse of discretion, any such 

error was harmless.

Any error in admitting the evidence for the purpose of showing 

intent was likewise harmless. The record reflects that the 2009

convictions served as the predicate felonies for the count of 

possession of a firearm by a convicted felon with which Ash was 

charged. Also, in his interview with the detective, which was played 

for the jury, Ash admitted to being a convicted felon. Thus, Ash’s 

prior convictions and the nature of the charges were properly before 

the jury for other reasons, leaving only Colton’s description of those 

events as additional evidence for the jury to consider. And Colton’s 

description of those events was not of a character that would lead a 
24

reasonable juror to seek to “punish” Ash in this case again for the 

actions described related to the prior case. Kirby, 304 Ga. at 485 (4) 

(a) (i). Finally, we note that neither the prosecutor nor Ash’s counsel 

devoted much attention to this evidence in closing arguments.

Under these circumstances, the evidence of the 2009 incident 

and convictions “was not unduly prejudicial, particularly in light of 

the trial court’s instructions limiting the jury’s consideration of the 

evidence to a matter that turned out to be of no importance and the 

fact that the jury learned that [Ash] had pled guilty to his prior 

crimes[.]” Tiraboschi v. State, __ Ga. __ (862 SE2d 276, 278 (2)) 

(2021); see also Howell v. State, 307 Ga. 865, 875 (838 SE2d 839)

(2020) (considering the trial court’s instructions on the limited use 

of other-act evidence in determining harmless error, because “[w]e 

ordinarily presume that jurors follow their instructions”); Kirby, 304 

Ga. at 485 (4) (a) (i) (explaining that the risk that a jury may convict 

a defendant not for the offense charged but for his extrinsic conduct 

is greater where the extrinsic conduct was not already the subject of 

a conviction).
25

Rather, the central issue in the case was whether it was Ash 

who shot and killed Shaw. On that issue, the evidence against Ash 

was strong. Minor testified at trial that Ash told him he shot and 

killed Shaw, and Minor’s testimony was corroborated by physical 

evidence and statements by other witnesses. 

Further, the State introduced the testimony of multiple 

witnesses regarding Ash’s anger towards Shaw and his suspicions 

that Shaw was responsible for stealing Jonathan’s drugs. In the 

days leading up the murder, witnesses observed several

confrontations between Ash and Shaw, including at least one visit 

where Shaw refused Ash entry to his apartment. Denise Gowdy’s 

testimony about Shaw’s refusal to let Ash enter also helped to

explain why, as Minor testified, Ash would need to “finesse” his way 

into Shaw’s apartment on the night of the shooting. 

In addition, Cook’s testimony placed Ash and a white SUV at

the scene of the shooting around the time it occurred. Although his 

statements were confusing and contradictory and his credibility was 

aggressively questioned at trial, at least one of the descriptions of 
26

the person he identified as “Big Boy” led a detective to conclude that 

he had identified Ash. Moreover, although Stevens offered a benign 

explanation for washing Ash’s clothes on the night of the shooting, 

there was also evidence suggesting that Stevens destroyed the

clothes Ash had been wearing that night. In his interview with the 

police, Ash gave inconsistent stories about his movements and 

whereabouts on the evening of the shooting.

Given this evidence, it is highly probable that any error in 

admitting the other-acts evidence for the jury to consider in regard 

to intent did not contribute to the verdicts. See Jackson, 306 Ga. at 

81 (2) (concluding that the erroneous admission of evidence of a prior 

shooting did not contribute to the jury’s verdict “given the overall 

strength of the other evidence” of guilt); see also Keller v. State, 308 

Ga. 492, 503 (5) (842 SE2d 22 (2020) (determining that evidentiary 

error was harmless “in light of the strong evidence of [appellant’s] 

guilt”). Thus, this enumeration of error fails.

3. Ash also contends that the trial court improperly admitted 

hearsay testimony from Terrell concerning statements Shaw made 
27

to him. Before trial, the State filed a notice of intent to introduce 

hearsay evidence pursuant to OCGA § 24-8-807 (“Rule 807”), which 

is also known as the “residual” hearsay exception.18 Specifically, the 

State sought to admit testimony about Shaw’s statements to Terrell 

that Jonathan and Shaw were both arrested for marijuana and cash 

found in Jonathan’s car, that Ash told Shaw that Shaw “needed to 

own up” for the marijuana found when he and Jonathan were 

arrested, that Shaw was not going to claim the drugs were his “right 

then,” and that Shaw was “going to wait and see.”

Over Ash’s objection, the trial court permitted the State to 

question Terrell about Shaw’s statements to him under the residual 

hearsay exception, determining that, under the totality of the 

circumstances, there were particularized guarantees of the 

 18 OCGA § 24-8-807 provides, in relevant part:

A statement not specifically covered by any law but having 

equivalent circumstantial guarantees of trustworthiness shall not 

be excluded by the hearsay rule, if the court determines that: (1) 

The statement is offered as evidence of a material fact; (2) The 

statement is more probative on the point for which it is offered 

than any other evidence which the proponent can procure through 

reasonable efforts; and (3) The general purposes of the rules of 

evidence and the interests of justice will best be served by 

admission of the statement into evidence. . . .
28

statements’ trustworthiness, Shaw was clearly unavailable to testify 

at trial due to his death, and the statements were relevant to a 

material fact in the case. On appeal, Ash claims that the trial court 

abused its discretion by admitting Shaw’s statements to Terrell

under the residual hearsay exception. We disagree.

(a) In ruling upon Ash’s residual hearsay claim in his motion

for new trial, the trial court referred to this Court’s decision in 

Griffin v. State, 280 Ga. 683, 684 (631 SE2d 671) (2006), which the 

trial court noted applied the “necessity” exception to the hearsay 

rule set forth in former OCGA § 24-3-1 (b). However, the General 

Assembly did not carry over that exception to the hearsay rule into 

the current Evidence Code. While eliminating the “necessity” 

exception, the General Assembly modeled the current version of 

Rule 807 — which took effect on January 1, 2013, and applies to all 

trials conducted after that date, including the trial in this case — on 

Federal Rule of Evidence 807. See State v. Holmes, 304 Ga. 524, 529 

(2) (a) (820 SE2d 26) (2018).

As we have noted many times since the current Evidence 
29

Code’s enactment, when Georgia courts consider the meaning of 

Evidence Code provisions that the General Assembly borrowed from 

the Federal Rules of Evidence, they should be guided by the 

“decisions of the federal appeals courts construing and applying the 

Federal Rules, especially the decisions of the Eleventh Circuit.” 

(Citation and punctuation omitted.) Jacobs v. State, 303 Ga. 245, 

249 (2) (811 SE2d 372) (2018). Cases decided under the “necessity” 

exception to the hearsay rule in Georgia’s former Evidence Code are 

thus not applicable to Rule 807’s interpretation and should not be 

relied on by trial courts in determining whether to admit evidence. 

See Holmes, 304 Ga. at 530 (2) (a).

However, despite its citation to Griffin, the trial court’s order 

denying Ash’s motion for new trial on this ground relied primarily

on its assessment of “guarantees of trustworthiness” and the other 

factors outlined in Rule 807. We also note that in their arguments 

before the trial court in the pre-trial hearing on this issue both Ash 

and the State discussed the need to establish guaranties of 

trustworthiness surrounding Shaw’s statements to Terrell.
30

The trial court ultimately applied the appropriate evidentiary 

standard despite its citation of a case construing the former 

Evidence Code. It is therefore unnecessary for us to vacate the trial 

court’s denial of Ash’s motion for new trial on the sole basis that the 

trial court considered a decision under the former Evidence Code 

instead of relying on decisions construing Rule 807 under the 

current Evidence Code. See Reyes v. State, 309 Ga. 660, 667 (2) (a) 

(847 SE2d 194) (2020) (holding that even though the trial court cited 

cases construing the former Evidence Code, because the trial court 

applied the residual factors, in substance, remand was 

unnecessary). Compare Holmes, 304 Ga. at 530 (2) (a) (where trial 

court did not apply the proper evidentiary standard in analyzing 

evidence’s admissibility under Rule 807, this Court vacated the

order, remanded the case, and directed the trial court to apply the 

correct standard).

(b) We now consider whether the trial court abused its 

discretion by admitting the statements at issue under Rule 807. See 

Tyner v. State, 305 Ga. 326, 330 (2) (825 SE2d 129) (2019) (admission 
31

of evidence under Rule 807 reviewed for abuse of discretion). The 

exception states in relevant part:

A statement not specifically covered by any law but 

having equivalent circumstantial guarantees of 

trustworthiness shall not be excluded by the hearsay rule, 

if the court determines that: (1) The statement is offered 

as evidence of a material fact; (2) The statement is more 

probative on the point for which it is offered than any 

other evidence which the proponent can procure through 

reasonable efforts; and (3) The general purposes of the 

rules of evidence and the interests of justice will best be 

served by admission of the statement into evidence[.]

OCGA § 24-8-807. 

Ash does not dispute that the State offered the statements at 

issue as evidence of material facts, that the statements were more 

probative on the points for which the State offered them than any

other evidence the State could have reasonably procured, or that the 

statements’ admission would best serve the general purpose of the 

evidence rules and the interests of justice. Instead, Ash contends 

only that the statements did not have sufficient “guarantees of 

trustworthiness” to be properly admitted under the residual hearsay 

exception. We disagree.
32

We first note that the General Assembly designed the residual 

hearsay exception embodied in Rule 807 “‘to be used very rarely, and 

only in exceptional circumstances.’” Jacobs, 303 Ga. at 249 (2)

(quoting Rivers v. United States, 777 F3d 1306, 1312 (II) (11th Cir. 

2015)). The rule applies “only when certain exceptional guarantees 

of trustworthiness exist and when high degrees of probativeness and 

necessity are present.” Jacobs, 303 Ga. at 249 (2). Such guarantees 

of trustworthiness

must be equivalent to cross-examined former testimony, 

statements under a belief of impending death, statements 

against interest, and statements of personal or family 

history. These categories of hearsay have attributes of 

trustworthiness not possessed by the general run of 

hearsay statements that tip the balance in favor of 

introducing the information if the declarant is 

unavailable to testify. And they are all considered 

sufficiently trustworthy not because of the credibility of 

the witness reporting them in court, but because of the 

circumstances under which they were originally made.

(Citations and punctuation omitted.) Id. However, 

[t]his Court is particularly hesitant to overturn a trial 

court’s admissibility ruling under the residual hearsay 

exception absent a definite and firm conviction that the 

court made a clear error of judgment in the conclusion it 

reached based upon a weighing of the relevant factors.
33

(Citation and punctuation omitted.) Holmes, 304 Ga. at 529 (2) (a).

Here, the trial court determined that several factors weighed 

in favor of finding that Shaw’s statements to Terrell were 

trustworthy. The trial court noted that Terrell testified in a pre-trial 

hearing regarding the residual hearsay testimony.19 Terrell testified 

that Shaw was his lifelong friend “ever since elementary school.” 

Terrell and Shaw met in the third grade, and they were friends until 

Shaw’s death. The pair talked to each other daily and shared the 

personal details of their lives with each other. Terrell described 

Shaw as his “best friend” that he “loved and trusted.” Terrell and 

Shaw continued this close relationship until Shaw’s death.

In light of the evidence of their long and close friendship and 

the circumstances in which Shaw made the statements at issue to 

Terrell, we cannot say that the trial court abused its discretion by 

admitting the statements under Rule 807. See, e.g., Rawls v. State, 

 19 The trial court initially determined that Shaw’s statements would not 

be admitted pursuant to Rule 807. Before the start of Ash’s second trial, the 

trial court reversed that decision following a hearing on a pre-trial motion for 

reconsideration filed by the State. 
34

310 Ga. 209, 215 (3) (i) (850 SE2d 90) (2020) (noting that the “close 

relationship” between victim and witness gave statements made to 

witness by victim “sufficient guarantees of trustworthiness to be 

admissible under Rule 807”); Jacobs, 303 Ga. at 250-251 (2) (no 

abuse of discretion where statements made to close friends 

concerned history of conflict between victim and perpetrator). 

Moreover, although Terrell, like many of the witnesses who 

testified at trial, had his credibility and motives for testifying 

questioned by the defense, his credibility was not at issue in 

determining whether to admit Shaw’s statements to him under Rule 

807. As we discussed in Jacobs, the trial court must make its 

determination of the trustworthiness of the hearsay statements at 

issue “not because of the credibility of the witness reporting them in 

court, but because of the circumstances under which they were 

originally made.” (Citations and punctuation omitted.) 303 Ga. at 

249 (2). Because the record is clear that this was the trial court’s 

focus in reaching its ruling with regard to the admission of the 

statements and because the trial court’s decision to admit this 
35

evidence did not otherwise constitute an abuse of discretion, this

enumeration of error fails. See Reyes, 309 Ga. at 673-674 (3) (b).

4. Ash also claims that his right to due process was violated 

when the State “improperly destroyed evidence it knew to be 

exculpatory.” Specifically, Ash claims that during his interview with 

the police on April 5, 2013, he showed the lead detective a picture on 

his cell phone showing that he was at the Brazilian Club on the night 

of Shaw’s shooting. Ash further claims that after confiscating the 

cell phone incident to his arrest, the State, in bad faith, destroyed

the phone, even though it contained exculpatory evidence, namely 

the photograph Ash showed the detective. The trial court 

determined that Ash had not demonstrated a due process violation, 

and we agree.

In evaluating whether a defendant’s constitutional right to due 

process was violated when the State failed to preserve evidence that 

could be exculpatory,

a court must determine both whether the evidence was 

material and whether the police acted in bad faith in 

failing to preserve the evidence. To meet the standard of 
36

constitutional materiality, the evidence must possess an 

exculpatory value that was apparent before it was 

destroyed, and be of such a nature that the defendant 

would be unable to obtain comparable evidence by other

reasonably available means.

(Citations and punctuation omitted.) Goins v. State, 310 Ga. 199, 

202 (3) (850 SE2d 68) (2020); see also State v. Mussman, 289 Ga. 

586, 590 (2) (713 SE2d 822) (2011) (applying this test where the 

State failed to preserve evidence that “could have been exculpatory, 

but where it is not known that the evidence would have been 

exculpatory” (emphasis omitted)). This test is ordinarily applied 

when State officials dispose of potential evidence that was 

previously in the State’s actual or constructive possession. See, e.g., 

Arizona v. Youngblood, 488 U. S. 51, 52-53 (109 SCt 333, 102 LE2d 

281) (1988) (sexual assault kit not fully tested and victim’s clothing 

not refrigerated); California v. Trombetta, 467 U. S. 479, 482 (104 

SCt 2528, 81 LE2d 413) (1984) (suspected drunk drivers’ breath 

samples not preserved by arresting officers); Hill v. State, 308 Ga. 

638, 648-649 (842 SE2d 853) (2020) (correctional officer’s video of 

post-crime search lost); Clay v. State, 290 Ga. 822, 839-843 (5) (725 
37

SE2d 260) (2012) (defendant’s blood samples destroyed). Cf. Krause 

v. State, 286 Ga. 745, 752 (691 SE2d 211) (2010) (applying the test 

to a baseball bat seen in a crime scene photograph but not taken into 

evidence).

In his motion for new trial, Ash claimed that the State violated 

his due process rights by improperly and in bad faith destroying his 

cell phone, which the State allegedly knew contained exculpatory 

evidence before its destruction. The record shows that during the 

investigation of Shaw’s murder, the lead detective interviewed Ash

on April 5, 2013. Among other stories about the night of Shaw’s 

shooting, Ash told the detective that he had an alibi in the form of a 

photograph taken at the Brazilian Club that night. Ash then showed 

the detective a photograph he “had received” which he said was 

taken at the club that night. In response, the detective challenged 

Ash to provide information about his whereabouts between 2:00 a.m. 

and 7:00 a.m. on February 21.

After his interview with the detective, Ash was arrested. 

Incident to the arrest, the detective collected Ash’s cell phone.
38

Pursuant to Atlanta Police Department procedures, the detective 

generated a bar code for the phone on April 5, but he did not turn 

the phone over to the department’s property control unit until July 

22, 2013, in apparent violation of police department guidelines. 

During that time, the detective asked Ash’s cell phone service 

provider to unlock his phone. A representative of the service 

provider indicated that it would only do so after being presented 

with a valid search warrant. The detective later obtained a search 

warrant for the phone but never filed a return.20

In addition, when the detective later turned the phone over to 

the department’s property control unit, he designated the phone as 

“property” rather than “evidence.” Under police department 

guidelines, “property” was to be retained by the police department 

for at least 90 days before being destroyed, based on the date listed 

 20 An employee of the Clerk of Fulton County Superior Court testified 

that, “[n]ormally, when the affidavits and applications for a search warrant 

are filed with our court, they are filed with a return attached. And this record 

has no return attached.” The record contains a form Fulton County Superior 

Court “return,” which is a document that shows, among other information, 

whether and where the warrant was executed, with whom or where a copy of 

the warrant was left, and an inventory of any items seized in any search that 

was conducted pursuant to the warrant.
39

with the bar code, and police personnel were to, “if possible,” contact 

the property owner and notify him that the property could be picked

up at the property control unit. In early August 2013, the police 

department sought court permission pursuant to OCGA § 17-5-54 

(e)21 to destroy Ash’s cell phone, and a court order granting such 

permission was issued on August 20. Ash’s cell phone was destroyed 

sometime in early October 2013.22 A notation on the document 

showing the chain of custody of the phone indicates that the phone 

was destroyed before the police notified Ash that the phone could be 

picked up.

 21 OCGA § 17-5-54 (e) provides, in pertinent part, as follows:

For any unclaimed personal property that is not a firearm, the 

sheriff, chief of police, or other executive officer of a law 

enforcement agency shall make application to the superior court 

for an order to retain, sell, or discard such property. In the 

application the officer shall state each item of personal property to 

be retained, sold, or discarded. . . . Upon the superior court's 

granting an order which authorizes that the property be discarded, 

the law enforcement agency shall dispose of the property as other 

salvage or nonserviceable equipment. . . .

22 Ash’s counsel noted in the hearing on the motion for new trial that the 

police department’s procedures required the department to make efforts to 

notify Ash before destroying the phone but that he was never notified. Ash 

concedes that, before its destruction, he never asked that the phone be

returned to him or that he be allowed to examine it.
40

Three witnesses who were in the chain of custody of the phone 

testified that they had not examined the contents of the phone and 

did not know whether the phone contained exculpatory evidence. 

The detective did not testify at the hearing on the motion for new 

trial.

At the hearing, Ash presented the testimony of an expert who 

stated that it would have been possible to extract “metadata” 

relating to the photograph, including GPS coordinates, the date and 

time the photo was captured, and the date and time the photo was 

digitized, from Ash’s phone. The expert testified that access to this 

data would “greatly” improve the ability to determine the precise 

location of Ash’s cell phone at various times. Ash’s mother also 

testified at the hearing that she picked up some of Ash’s personal 

property from the Fulton County Jail on May 23, 2016, and that she 

would have picked up his cell phone from the jail had she been asked 

to do so.

In its order denying Ash’s motion for new trial, the trial court 

rejected Ash’s claim, finding in part that, “[n]o testimony given by 
41

any witness over the two days of hearings on the amended motion 

for new trial demonstrated bad faith by anyone.” The trial court also 

noted that the photograph had been taken by someone else and was 

consistent with the State’s theory of Ash’s whereabouts the night of 

the shooting, including his presence at the Brazilian Club where Ash 

claimed the photo was taken. The trial court thus determined that 

the photograph was “not exculpatory, but rather inculpatory.”

To begin with, we agree with the trial court that Ash has not 

shown that the photograph’s exculpatory value, if any, was apparent

before it was destroyed. See Ballard v. State, 285 Ga. 15, 16 (2) (673 

SE2d 213) (2009). That a piece of evidence may be “potentially 

useful” in a defendant’s attempt at exoneration is insufficient to 

sustain a claim that the defendant has suffered an abridgment of 

due process due to the evidence’s destruction or loss. Krause, 286 Ga. 

at 752 (8). The key is the evidence’s “apparent exculpatory value” 

before its destruction or loss, and this Court has defined “apparent” 

in this context as “readily seen; visible; readily understood or 

perceived; evident; obvious.” State v. Mitzell, 288 Ga. 474, 476 (2) 
42

(705 SE2d 154) (2011).

Although Ash argues that the exculpatory value of the picture 

he showed the detective was readily apparent and that the 

detective’s actions in seeking to unlock the phone and obtain a 

search warrant for it demonstrate as much, we are not persuaded 

that Ash has demonstrated that this evidence satisfies the 

exculpatory prong of the materiality test. Based on the record before 

this Court, we cannot conclude that the cell phone’s exculpatory 

value was obvious or evident to the detective or any other police 

personnel who handled the phone before its destruction. See State v. 

Miller, 287 Ga. 748, 755 (699 SE2d 316) (2010) (evidence on seized 

cell phone was not constitutionally material where “it was [not] 

apparent to police or anyone else involved in the seizure, custody, or 

disposition of the cell phone that it could possibly aid [the defendant] 

in the defense of any criminal charges”).

To the contrary, the evidence presented at the hearing on the 

motion for new trial suggests that the detective never believed the 

photograph to be exculpatory and that other police personnel never 
43

examined the phone to determine whether it contained exculpatory 

evidence. Consequently, the trial court did not err in determining 

that the exculpatory value of the evidence was not apparent. See 

Hill, 308 Ga. at 649 (3) (holding that, even if an unpreserved video 

would have shown what the appellant claims it would have shown, 

it was not material because its exculpatory value was not apparent 

before it was lost); Clay, 290 Ga. at 842 (5) (c) (rejecting claim of due 

process violation based on destruction of evidence and noting that 

appellant “overstate[d] the potential exculpatory value of the 

destroyed evidence”).

We also agree with the trial court’s determination that the 

police did not act in bad faith. As the United States Supreme Court 

discussed in Youngblood,

requiring a defendant to show bad faith on the part of the 

police both limits the extent of the police’s obligation to 

preserve evidence to reasonable bounds and confines it to 

that class of cases where the interests of justice most 

clearly require it, i.e., those cases in which the police 

themselves by their conduct indicate that the evidence 

could form a basis for exonerating the defendant.

488 U. S. at 58. Here, as the trial court found, there was no evidence 
44

that any member of the police department who handled Ash’s cell 

phone after it was confiscated believed there was exculpatory 

evidence on the phone. Only the detective was aware that Ash even 

claimed to have potentially exculpatory evidence on the phone.

Ash makes much of the evidence that the detective and other 

members of the police department appear to have violated a number 

of Atlanta Police Department policies in the handling and 

disposition of the phone, particularly the detective’s lengthy delay 

in turning the phone over to the property control unit, his 

“mislabeling” of the phone as “property” rather than “evidence,” and 

the destruction of the phone before notifying Ash that it could be 

picked up. However, 

[e]ven if we were to assume that the State’s handling of 

the [phone] indicated careless, shoddy and unprofessional 

investigatory procedures, it did not indicate that the 

police in bad faith attempted to deny [Ash] access to 

evidence that they knew would be exculpatory.

(Citation omitted.) Hill, 308 Ga. at 649 (3). Ash presented no 

evidence that the detective’s actions or the police department’s 

eventual destruction of the cell phone were motivated by a conscious 
45

desire to deny Ash the use of the photograph or other evidence 

connected with the phone, including metadata associated with the 

photograph, or that anyone in the chain of custody was even aware 

that the phone contained allegedly exculpatory evidence. Instead, 

the police department’s actions are best characterized “as an 

unfortunate series of mishandlings, mistakes, and negligence.” 

Miller, 287 Ga. at 755. Such actions cannot support a claim that 

Ash’s right to due process was violated, and this claim fails.

5. Ash next argues that the trial court plainly erred by failing 

to charge the jury on the “full defendant’s confession corroboration” 

instruction and by failing to instruct the jury that the testimony of 

an accomplice must be corroborated. We reject both contentions.

(a) Ash first contends that the trial court erred in the 

instruction on confession corroboration when it omitted one sentence 

from the current pattern instruction. Because Ash’s trial counsel did 

not request the jury instruction on confession corroboration and did 

not object to the jury charge as given by the trial court, we review 

this omission only for plain error. See OCGA § 17-8-58 (b) (“Failure 
46

to object in accordance with subsection (a) of this Code section shall 

preclude appellate review of such portion of the jury charge, unless 

such portion of the jury charge constitutes plain error which affects 

substantial rights of the parties. Such plain error may be considered 

on appeal even if it was not brought to the court’s attention as 

provided in subsection (a) of this Code section.”).

This Court has established the following test for plain error: 

First, there must be an error or defect — some sort of 

deviation from a legal rule — that has not been 

intentionally relinquished or abandoned, i.e., 

affirmatively waived, by the appellant. Second, the legal 

error must be clear or obvious, rather than subject to 

reasonable dispute. Third, the error must have affected 

the appellant’s substantial rights, which in the ordinary 

case means he must demonstrate that it affected the 

outcome of the trial court proceedings. Fourth and finally, 

if the above three prongs are satisfied, the appellate court 

has the discretion to remedy the error — discretion which 

ought to be exercised only if the error seriously affects the 

fairness, integrity or public reputation of judicial 

proceedings.

(Citations and punctuation omitted.) Simmons v. State, 299 Ga. 370, 

373 (2) (788 SE2d 494) (2016). This Court does not have to analyze 

all elements of the plain-error test where an appellant fails to 
47

establish one of them. See State v. Herrera-Bustamante, 304 Ga. 

459, 464 (2) (b) (818 SE2d 552) (2018). As we have noted, satisfying 

all four prongs of this test “is difficult, as it should be.” (Citation 

omitted.) Clarke v. State, 308 Ga. 630, 637 (5) (842 SE2d 863) (2020).

In this case, the trial court instructed the jury to

consider with great care and caution the evidence of any 

out-of-court statement allegedly made by the defendant 

offered by the State. The jury may believe any such 

statement in whole or in part, believing that which you 

will find to be true and rejecting that which you find to be 

untrue. You alone have the duty to apply the general rules 

for testing the believability of witnesses and to decide 

what weight should be given to all or any part of such 

evidence.

The trial court omitted the following statements from the pattern 

jury instruction: 

A defendant’s out-of-court statement that is not 

supported by any other evidence is not sufficient to justify 

a conviction, even if you believe that unsupported 

statement. However, proof by other evidence beyond a 

reasonable doubt that the crime alleged has been 

committed may constitute supporting evidence of a 

defendant’s statement, if any, should you so find. The law 

does not fix the amount of supporting evidence necessary. 

You must determine whether or not other evidence 

sufficiently supports a defendant’s statement so as to 

justify a conviction. If you find that there was a statement 
48

made by the defendant that was supported by other 

evidence, the degree of proof necessary to convict is that 

you be satisfied of the guilt of the defendant beyond any 

reasonable doubt.

See Georgia Suggested Pattern Jury Instructions, Vol. II, § 1.32.70 

(Jan. 2016); see also OCGA § 24-8-823 (“All admissions shall be 

scanned with care, and confessions of guilt shall be received with 

great caution. A confession alone, uncorroborated by any other 

evidence, shall not justify a conviction.”).23 Ash argues that the 

omission of the first sentence of this portion of the pattern jury 

instruction constituted plain error.

However, despite this omission from the pattern instruction, 

we cannot say that the trial court’s charge constituted a legal error 

that was “clear or obvious, rather than subject to reasonable 

dispute.” Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366) 

(2012). We have previously held that there was no plain error where 

the trial court failed to give the full text of a different pattern 

instruction on consideration of the voluntariness of the defendant’s 

 23 The exact text of former OCGA § 24-3-53 was carried forward into the 

current Evidence Code and codified as OCGA § 24-8-823.
49

statements in its charge to the jury where, as here, the charge, as 

given, “instructed the jury to apply the general rules for testing the 

believability of witnesses and for deciding what weight, if any, to 

give to all or any part of a statement.” Martin v. State, 306 Ga. 538, 

544 (4) (832 SE2d 402) (2019).

And although the trial court’s failure to charge the jury 

regarding the need to corroborate a defendant’s out-of-court 

statement has been raised as plain error in prior appeals before this 

Court, it does not appear that we have squarely addressed whether 

the failure to instruct the jury that an uncorroborated statement is 

insufficient to warrant a conviction is clearly and obviously 

erroneous. See, e.g., Hood v. State, __ Ga. __ (860 SE2d 432, 442 (2)) 

(2021) (pretermitting whether the failure to give the instruction 

constituted clear and obvious error and determining that the 

outcome was not likely affected by the omission of the instruction); 

Horton v. State, 310 Ga. 310, 322 (3) (b) (849 SE2d 382) (2020) 

(same); Clarke, 308 Ga. at 637 (5) (same); English v. State, 300 Ga. 

471, 473-475 (2) (796 SE2d 258) (2017) (same); Rashid v. State, 292 
50

Ga. 414, 422 (7) (737 SE2d 692) (2013) (same).24 Additionally, the 

Court of Appeals has held that, absent a timely request for a similar 

form of this instruction under the identical language of former 

OCGA § 24-3-53, there is no error so long as there was evidence

presented at trial corroborating the defendant’s statement. See

Herrington v. State, 243 Ga. App. 265, 266-267 (3) (533 SE2d 133) 

(2000).25

 24 Although it did not appear to explicitly consider the issue under the 

plain-error framework, the Court of Appeals reached a similar conclusion in 

Armstrong v. State, 325 Ga. App. 33, 36-37 (2) (752 SE2d 120) (2013), and 

Farley v. State, 314 Ga. App. 660, 666-667 (5) (725 SE2d 794) (2012), when it 

held in each case that there was no reversible error in failing to sua sponte 

instruct the jury regarding corroboration of a confession where the defendant 

did not request the instruction and his statement was corroborated by other 

evidence.

25 We recognize that this holding is in tension with our current approach 

to assessing whether the trial court erred by not giving certain instructions to 

the jury based on the text of statutes requiring corroboration. Tellingly, 

Herrington cites Fleming v. State, 269 Ga. 245, 247 (2) (497 SE2d 211) (1998), 

in support of the proposition that no corroboration instruction need be given 

where there is sufficient corroborating evidence. Fleming dealt with whether 

the trial court was required to give an accomplice-corroboration instruction 

requested by the defendant. See id. at 247 (2); former OCGA § 24-4-8. We held 

in Fleming that no instruction was required because the State presented 

evidence corroborating the alleged accomplice’s testimony. See id. However, in 

Hamm v. State, 294 Ga. 791, 796 (2) (756 SE2d 507) (2014), we overruled 

Fleming and other decisions from this Court and the Court of Appeals applying 

that rule, reasoning instead that the failure to give the accomplicecorroboration instruction is error when there is at least slight evidence that a 
51

The trial court did not commit a clear and obvious error here 

because “[a]n 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[.]” Wilson v. State, 291 Ga. 458, 460 (729 SE2d 364) (2012)

(holding that it was not plain error to fail to give jury instruction 

even where appellant’s argument establishing error “may be 

meritorious”). Because Ash has pointed to no precedent holding that 

the omission of this sentence from the pattern instruction 

constitutes error under these circumstances, and because existing

legal authority stands for the contrary position, whether the trial 

court should have instructed the jury on the full text of the pattern 

 

witness was an accomplice. We have since applied this rule in the plain-error 

context, holding that it is clear and obvious error for a trial court to fail to give 

the accomplice-corroboration instruction sua sponte when there is evidence 

that a witness was an accomplice. See, e.g., Stanbury v. State, 299 Ga. 125, 

129-130 (2) (786 SE2d 672) (2016). Herrington thus appears to deviate from 

this Court’s more recent decisions emphasizing the need for a jury instruction 

on corroboration where a statutory provision indicates that corroboration is 

required and there is slight evidence to support the instruction. 

However, even if Herrington is no longer good law — a question we need 

not definitively resolve today — for purposes of this case, it is sufficient that it 

has not been overruled. Herrington shows that, under existing precedent, the 

trial court did not clearly and obviously err in failing to instruct the jury that 

a defendant’s out-of-court statement that is not supported by any other 

evidence is not sufficient to justify a conviction.
52

confession-corroboration instruction must be considered “subject to 

reasonable dispute and thus cannot constitute plain error.” (Citation 

and punctuation omitted.) Id. See also Walter v. State, 304 Ga. 760, 

767 (3) (b) (822 SE2d 266) (2018) (noting that appellant had “cite[d] 

no precedent” requiring the instruction at issue).

(b) Ash also claims that the trial court plainly erred by failing 

to charge the jury on the need for corroboration of accomplice 

testimony, as a jury could have found that Terrell and Minor were 

accomplices to Shaw’s murder. We disagree.

The trial court instructed the jury on this issue as follows:

The testimony of a single witness, if believed, is sufficient 

to establish a fact. Generally, there is no legal 

requirement of a corroboration of a witness, provided you 

find the evidence to be sufficient.

Ash did not request an accomplice-corroboration charge, and the 

trial court did not instruct the jury that there must be independent 

corroboration of an accomplice’s testimony before it can be 

considered. After the trial court concluded the jury charges, Ash’s

counsel stated that she had no objections to the charges as given. We 
53

thus review this claim only for plain error. See OCGA § 17-8-58 (b).

OCGA § 24-14-8 provides, in relevant part, that “[t]he 

testimony of a single witness is generally sufficient to establish a 

fact. However, in . . . felony cases were the only witness is an 

accomplice, the testimony of a single witness shall not be sufficient.” 

Under this rule, the Court has stated that

where an accomplice testifies at trial, a jury may not rely 

solely on the testimony to find any fact necessary to 

sustain the defendant’s felony conviction. Instead, the 

existence of any such fact must also be supported by 

either the testimony of an additional witness or by other, 

independent evidence that corroborates the accomplice’s 

testimony.

State v. Johnson, 305 Ga. 237, 240 (824 SE2d 317) (2019). 

In considering whether a witness is an accomplice, we 

look to the definition of party to a crime found in OCGA § 

16-2-20. Under that definition, there must be some 

evidence showing that the defendant shared a common 

criminal intent to commit the crimes in question with the 

actual perpetrators. Moreover, evidence of an individual’s 

actions and knowledge after the commission of the crimes 

is insufficient to satisfy the standard of OCGA § 16-2-20. 

At best, it would show that the individual was an 

accessory after the fact, not a party to the crimes. At 

common law and under modern practice, an accessory 

after the fact is not considered an accomplice to the 

underlying crime itself, but is guilty of a separate, 
54

substantive offense in the nature of obstruction of justice.

(Citation, punctuation, and emphasis omitted.) Horton, 310 Ga. at 

323 (3) (c). 

Here, based on the standard outlined above, there was no 

evidence presented at trial that obviously called for the giving of an 

accomplice-corroboration charge. Although Ash notes that both 

Terrell and Minor believed Shaw should have taken responsibility 

for Jonathan Ash’s drug charges, Ash has pointed to no evidence 

that Minor or Terrell shared Ash’s intent to murder Shaw or that 

they aided or abetted the killing in any way. Ash also notes that

Cook’s testimony established that there was someone with Ash at 

Shaw’s apartment complex around the time Shaw was killed. 

However, there was no evidence presented at trial that this person

was either Terrell or Minor. By contrast, the evidence indicates only

that Terrell and Minor heard about Shaw’s killing later. Moreover, 

although Terrell was with Ash on the night of the shooting and 

traveled to Florida with him the following day, neither the evidence 

presented at trial nor the State’s closing argument pointed to Terrell 
55

as an accomplice. Rather, the State suggested that Ash contacted 

Terrell and asked to meet him merely as a way of establishing an 

alibi the night of the shooting. 

Thus, while there might have been a slight evidentiary basis 

for Ash to have requested a charge on accomplice corroboration, Ash 

has failed to show that the trial court made a clear and obvious error 

by not sua sponte instructing the jury on accomplice corroboration.

See Horton, 310 Ga. at 325 (3). This enumeration of error fails.

6. Finally, Ash argues that the cumulative effect of the errors

he has enumerated prejudiced him and that he is entitled to a new 

trial. To establish cumulative error, Ash must show that “at least

two errors were committed in the course of the trial; [and] 

considered together along with the entire record, the multiple errors 

so infected the jury’s deliberation that they denied [Ash] a 

fundamentally fair trial.” State v. Lane, 308 Ga. 10, 21 (4) (838 SE2d 

808) (2020). However, when reviewing a claim of cumulative 

prejudice, “we evaluate only the effects of matters determined to be 

error rather than the cumulative effect of non-errors.” Scott v. State, 
56

309 Ga. 764, 771 (3) (d) (848 SE2d 448) (2020). 

This Court has assumed for purposes of analysis that the trial 

court made only a single error in this case: the trial court’s 

admission of Ash’s 2009 convictions and testimony about the 

incident that led to those convictions. However, because we 

determined that any error in the admission of that evidence was 

harmless, and because we have not identified any other error on the 

part of the trial court, we have no basis for evaluating cumulative 

effect. See Flood v. State, ___ Ga. ___ (860 SE2d 731, 739 (2) (d)) 

(2021). This argument fails.

Judgment affirmed. All the Justices concur.