Larkins v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.


In the Supreme Court of Georgia



                                                   Decided: April 21, 2026


                        S26A0306. LARKINS v. THE STATE.

        LAGRUA, Justice.

        Appellant Matthew Larkins appeals his convictions for malice

murder and other crimes related to the shooting death of Shanna

Smith. 1 On appeal, Larkins argues that his convictions should be


                                  —————————————————————
        1 Smith was shot and killed on August 4, 2016. On December 28, 2018, a

Fulton County grand jury indicted Larkins, Dejon Fuller, Richard Ash, Travon
Mack, and Darien Sherry for the following counts: participation in criminal
street gang activity (Count 1); malice murder (Count 2); felony murder
predicated on aggravated assault with a deadly weapon (Count 3); felony
murder predicated on criminal damage to property (Count 4); felony murder
predicated on participation in criminal street gang activity (Count 5); felony
murder predicated on possession of a firearm by a convicted felon—as to Ash
(Count 6); felony murder predicated on possession of a firearm by a first
offender probationer—as to Fuller (Count 7); felony murder predicated on
possession of a firearm by a convicted felon—as to Larkins (Count 8); felony
murder predicated on possession of a firearm by a convicted felon—as to Mack
(Count 9); aggravated assault with a deadly weapon (Count 10); criminal
damage to property (Count 11); two counts of possession of a firearm during
the commission of a felony (Counts 12 and 13); possession of a firearm by a
convicted felon—as to Ash (Count 14); possession of a firearm by a first offender
probationer—as to Fuller (Count 15); possession of a firearm by a convicted
felon—as to Larkins (Count 16); and possession of a firearm by a convicted
felon—as to Mack (Count 17).
      Fuller pleaded guilty to a reduced charge of voluntary manslaughter and
reversed based on the following contentions: (1) the evidence was

insufficient to support the convictions in this case because the State

failed to adequately corroborate the testimony of accomplice Dejon

Fuller; (2) the trial court committed plain error when it gave a

misleading jury instruction on the use of a testifying co-defendant’s

out-of-court statements and trial testimony; (3) Larkins’s trial

counsel was constitutionally ineffective for failing to object when the

trial court improperly commented on the evidence presented at trial;

(4) the trial court erred when it admitted hearsay statements under

                         —————————————————————
testified for the State at trial. Before trial, Sherry’s case was severed, and
Count 1 (participation in criminal street gang activity) and Count 5 (felony
murder predicated on participation in criminal street gang activity) were
bifurcated. Larkins, Ash, and Mack were then jointly tried on the remaining
counts from October 15 to October 23, 2019. Larkins was found guilty on all
counts against him that were not bifurcated for trial (i.e., Counts 2, 3, 4, 8, 10,
11, 12, 13, and 16). The jury also found Mack guilty on all such counts, but his
case is not part of this appeal. The jury was unable to reach a verdict on the
charges against Ash. The State moved to nolle pross Counts 1 and 5 against
Larkins and Mack, and the trial court granted the request without objection.
The trial court sentenced Larkins to life in prison on the malice murder count
(Count 2), plus a total of 25 consecutive years to serve on Counts 11, 12, 13,
and 16. The remaining counts merged or were vacated by operation of law.
Larkins filed a timely motion for new trial, which he later amended through
new counsel on January 13, 2021. After holding an evidentiary hearing on the
motion for new trial, the trial court denied the motion on December 20, 2024.
Larkins filed a timely notice of appeal on January 11, 2025. This case was
docketed in this Court to the term beginning in December 2025 and was orally
argued on February 3, 2026.
                                        2
the co-conspirator exception; and (5) Georgia case law permitting

prosecutors to make a non-substantive initial closing argument is

wrongly decided and must be corrected, as it is prejudicial to

defendants. For the reasons that follow, we affirm.

     The evidence presented at trial showed that, around 5:30 a.m.

on August 4, 2016, Smith was shot and killed inside her vehicle as

she drove away from a co-worker’s house on Hadlock Street in

Fulton County. According to that co-worker, Dejuanzell Banks,

Smith gave Banks a ride home after their overnight shift ended at

4:30 a.m. When Smith and Banks arrived at Banks’s house, they sat

in her car—a dark green BMW sedan—for a few minutes, and Banks

saw two cars make a “weird crazy turn” onto Hadlock Street from

Leslie Avenue—an adjoining street—“following each other kind of

fast.” Banks testified that the “car in the front” was a red, four-door

“sedan, maybe an Impala.” Banks soon exited Smith’s car and

watched her drive away, “going towards Leslie.” As Banks turned

and entered his house, he heard multiple gunshots nearby—what

sounded “like a whole clip.” Worried that Smith could have been

                                  3
struck, Banks tried numerous times to reach Smith on her cell

phone, but he got no response. Banks then called 911.

     Several of Banks’s neighbors also heard gunshots around 5:30

a.m. on August 4 and called 911. One neighbor testified that she

looked out the window and saw two people running from Hadlock

Street to Leslie Avenue, one of whom was holding a “large” handgun,

shooting at a car driving down Hadlock Street towards Leslie

Avenue. She then saw the car swerve “down the embankment

behind [her] house” on Leslie Avenue. Another witness, Gerald

Slaughter, testified that, after hearing “gunfire,” he saw two cars

following a BMW—a “red four-door Chevy Impala” and a “brown

kind of light beige color square Benz”—and then saw at least three

individuals “g[e]t out of the cars,” “walk[] down to” the BMW, and

“start[] to unload” their weapons in the direction of the BMW. After

the shooting, Slaughter saw the shooters get back into the Impala

and the “Benz” and noted that one of them had “dreads.”2


                       —————————————————————
     2  The record reflects that Larkins wore his hair in dreads around the
time of this incident.
                                    4
     An Atlanta Police Department officer responded to the scene

and discovered Smith’s BMW in a ditch, with multiple “bullet holes

in the back windshield,” and Smith in the driver’s seat, with

multiple gunshot wounds. Smith was transported to the hospital,

where she was “pronounced deceased.” The medical examiner

testified that Smith died from a gunshot wound to the back of her

head, which exited through her left temple.

     Officers also collected numerous shell casings, including three

9mm shell casings from the same firearm, one .25-caliber shell

casing, eight .45-caliber shell casings from the same firearm, five

.380-caliber shell casings from the same firearm, eighteen .223-

caliber shell casings from the same firearm, and seven .223-caliber

shell casings from the same firearm. Officers also located a “black

flip phone.” Atlanta Police Detective Summer Benton, the lead

detective in this case, testified that she called the phone number

appearing most frequently in the call history. Karemnescia Jones

answered Detective Benton’s call, and based on that phone call,

Detective Benton established that the cell phone belonged to Fuller,

                                 5
one of Larkins’s co-defendants. Detective Benton obtained a search

warrant for Fuller’s cell phone and phone records, and during her

review of the corresponding cell phone records, she developed

“[m]ultiple numbers of interest”—phone numbers called by Fuller’s

cell phone “numerous times both before and immediately after the

homicide … back-to-back-to-back.” Detective Benton then secured

search warrants to obtain the cell phone records for those phone

numbers.

     Detective Benton determined that one of the cell phone

numbers communicating with Fuller’s cell phone during the

pertinent timeframe had a subscriber name of “Quicksand” with an

associated address of 7265 Ginger Court in Riverdale. Evidence was

presented that, a few hours prior to Smith’s shooting, Cortez

Thompson was shot and injured at 7265 Ginger Court, which was

later determined to be Larkins’s residence.3



                       —————————————————————
     3 A Clayton County police officer testified that he was dispatched to 7265

Ginger Court on the night of August 3, 2016, to investigate Thompson’s
shooting, and another police officer testified that he was dispatched to the
hospital around 9:00 p.m. that night to question Thompson about the shooting.
                                      6
     Atlanta Police Detective David Quinn, who assisted Detective

Benton in investigating this case, testified that the investigation of

Smith’s shooting went “cold” for several months. During that

timeframe, Detective Quinn tried to reach Jones, Fuller’s girlfriend,

in an effort to locate and communicate with Fuller, but Jones would

not respond to his calls or agree to meet with him. Eventually, on

February 20, 2017, Detective Quinn served Jones with a grand jury

subpoena for an appearance on February 21, 2017. When Jones

arrived at the Fulton County Courthouse on February 21 to appear

before the grand jury, Fuller accompanied her. At the time, Fuller

had “an active probation warrant,” so he was detained and

transported to the Atlanta Police Department for an interview. Prior

to interviewing Fuller, Detective Quinn advised Fuller of his

Miranda rights,4 which Fuller agreed to waive.

     During Fuller’s initial interview on February 21 and a

subsequent interview on February 23, Fuller disclosed the identity

of several additional suspects in Smith’s shooting, including

                      —————————————————————
     4 See Miranda v. Arizona, 384 US 436 (1966).

                                    7
Larkins—whom Fuller referred to as “Quicksand” or “Quick”—and

Larkins’s co-defendants, Richard Ash and Travon Mack. During the

interviews, investigators also learned that Darien Sherry, another

one of Larkins’s co-defendants,5 owned a 2014 red Chevrolet Impala,

which police officers later impounded and searched pursuant to a

search warrant, discovering bullet holes on the exterior of the

vehicle that had been covered with black duct tape. Additionally,

investigators discovered a public Instagram account for “Quicksand

220,” which, according to Fuller’s testimony, was Larkins’s

Instagram profile name. In the postings on Quicksand 220’s

Instagram account, investigators located a screenshot of the arrest

warrant issued by the Atlanta Police Department for this shooting,

with brackets drawn around the following language: “A third male

identified in this case is Matthew Von Larkins.” Also posted to

Quicksand 220’s Instagram account was what appeared to be a

“selfie photo” of Larkins looking into a mirror, and in this

photograph, Larkins’s hair was styled in long dreads.

                      —————————————————————
     5 Sherry was not tried with Larkins, Ash, and Mack.

                                    8
     Fuller testified as a State’s witness at trial pursuant to an

agreement with the State that resulted in him pleading guilty to

voluntary manslaughter and being sentenced to 20 years on

probation. Fuller explained that he was neighborhood friends with

Larkins, Ash, Mack, and Sherry and spent a lot of time at Larkins’s

house on Ginger Court. Fuller testified that, shortly after 9:00 p.m.

on August 3, 2016, he found out from Sherry that Thompson, who

was part of their friend group, had been shot and taken to the

hospital. Fuller also learned that Thompson had been hanging out

at Larkins’s house with Sherry, Larkins, Mack, and some other

people when the shooting occurred. According to Fuller, Sherry told

him that, after the shooting, Thompson’s shooter ran from Larkins’s

house and was picked up by a vehicle, and Larkins later discovered

that the shooter had fled to an address on Hadlock Street. Around

midnight on August 3, Sherry and Ash drove to that location, and

when they arrived, Sherry saw the vehicle in which the shooter had

fled and shot at the car but did not hit anyone. The shooter’s vehicle

then sped away from the area.

                                  9
     Fuller testified that he met up with Larkins, Ash, Mack, and

Sherry at a mutual friend’s house during the early morning hours of

August 4, and the group reached a “collective agreement” to go back

to the Hadlock Street neighborhood to find the shooter, agreeing

that “if [they] saw some people out there,” they “were going to shoot

them.” Fuller testified that the group traveled in tandem to the area

around the intersection of Hadlock Street and Leslie Avenue, where

they believed the shooter would be. Sherry drove his Impala with

Mack as a passenger, and Ash drove his car—a “gold or tan” “[f]our-

door sedan”—with Fuller and Larkins as passengers. Fuller testified

that everyone in the group was armed. Fuller had two guns—“a

Desert Eagle 44-magnum and a Taurus 40”—Sherry and Mack had

a “rifle and another pistol”; and Larkins had what “looked like an

assault rifle … but it shot 45 [caliber] rounds.” Fuller could not recall

what kind of weapon Ash had. When the group arrived in the

neighborhood, they “drove around” and then parked near the corner

of Leslie Avenue and Hadlock Street, remaining in their cars.

Shortly thereafter, the group saw a car—a “darker in color … 4-door

                                   10
sedan”—heading towards them, coming from the direction of the

house where they believed the shooter to be. According to Fuller, he

and Sherry were communicating continuously by phone, and when

they saw the car heading towards them, Sherry said, “here they

come, here they come.” Fuller said that he, Larkins, Mack, and

Sherry got out of the cars—armed—and Larkins, Mack, and Sherry

started shooting. Fuller attempted to shoot, but his guns

“malfunctioned.” Fuller testified that he did not how many shots

were fired, but it “had to be over 20.” Immediately after the shooting,

Fuller saw the car they had been shooting at “swerve[] off” and

“c[o]me to a stop” on Leslie Avenue. The group got back into their

cars, and as they drove away, Fuller saw “straight clear into the car”

and observed “a female slumped over in the car.”

     Fuller testified that, shortly after leaving the scene, he realized

he had dropped his cell phone, but he did not know when or where.

Later that morning, Jones told Fuller that the Atlanta Police

Department had his cell phone, and when Fuller was interviewed by

detectives in February 2017, he initially claimed he had lost the

                                  11
phone about a week prior to the shooting.

     Officers determined during their investigation that Larkins

went by the nickname “Quicksand,” which—as noted above—was

the subscriber name associated with one of the cell phones

communicating with Fuller during the pertinent timeframe, and the

subscriber address for that cell phone was Larkins’s address on

Ginger Court.

     Atlanta Police Detective Kevin Leonpacher, who was tendered

as an expert at trial in the field of “historical cell phone data,” “cell

tower analysis,” and “phone data analysis,” testified that he received

phone records from the cellular service providers for the cell phones

of Larkins, Fuller, Ash, Mack, and Sherry pursuant to a search

warrant. Detective Leonpacher testified that he used those cell

phone records to analyze the cell phone data for Larkins’ and his co-

defendants’ cell phones to “plot activity” and determine the location

of those cell phones during the pertinent timeframe from the

evening of August 3 to the late morning hours of August 4, 2016.

According to Detective Leonpacher, the “points of interest” in this

                                   12
case were a location in Riverdale close to Larkins’s house and an

area around the intersection of Hadlock Street and Leslie Avenue.

With respect to Larkins’s cell phone, Detective Leonpacher

determined that, based on his review of cell phone records, cell

phone data, cell networks, and cell tower information, a “device

associated with Larkins’s phone number was showing activity in the

area generally around Riverdale” at 4:58 a.m. on August 4, 2016.”

And, between 5:19 a.m. and 5:38 a.m. on August 4, Larkins’s cell

phone “was showing activity in an area also consistent with the

same general geographic area that includes Hadlock Street” and

Leslie Avenue. Detective Leonpacher further determined that,

based upon his expert analysis of the cell phone records for Larkins’s

and his co-defendants’ cell phones, these “five devices” “exhibited a

pattern of communication with respective cell networks” that was

“consistent with movement from the area of Riverdale at roughly

4:50 in the morning [on August 4] up to the area of Hadlock Street

… at roughly 5:20 through 5:40.”



                                 13
     1. In his first enumeration of error, Larkins contends that the

evidence presented at trial was insufficient to support Larkins’s

convictions because the State failed to adequately corroborate the

testimony of “confessed accomplice” Fuller under OCGA § 24-14-8.

We disagree.

     OCGA § 24-14-8 provides, in pertinent part, that

     [t]he testimony of a single witness is generally sufficient
     to establish a fact. However, in certain cases, including …
     felony cases where the only witness is an accomplice, the
     testimony of a single witness shall not be sufficient.
     Nevertheless, corroborating circumstances may dispense
     with the necessity for the testimony of a second witness.

We have interpreted this statute to mean that, “where the only

witness implicating the defendant is an accomplice, testimony by the

accomplice must be corroborated by other evidence implicating the

defendant.” Bowdery v. State, 321 Ga. 890, 896 (2025) (cleaned up).

“Corroborating evidence must either directly connect the defendant

with the crime or justify an inference that he is guilty, and must

corroborate both the identity of the defendant and the fact of his

participation in the crime.” Id. (quotation marks omitted). And we


                                 14
have said that “[s]ufficient corroborating evidence may be

circumstantial, slight, and need not be of itself sufficient to warrant

a conviction of the crime charged.” Head v. State, 316 Ga. 406, 411

(2023). “Nor must the corroborating evidence match the testimony

of the accomplice in every detail.” Bowdery, 321 Ga. at 896 (cleaned

up). “The sufficiency of corroboration is a matter for the jury to

decide, and in considering sufficiency, we must consider all of the

evidence that was admitted by the trial court, regardless of whether

that evidence was admitted erroneously.” Head, 316 Ga. at 411.

With these principles in mind, we now consider whether sufficient

corroborating evidence was presented to support a finding that

Larkins “committed the crimes of which he was convicted.” Bowdery,

321 Ga. at 896 (cleaned up).

     Although the majority of the evidence implicating Larkins

came from his accomplice, Fuller, multiple pieces of evidence—

including cell phone evidence, ballistics evidence, and eyewitness

testimony—provided at least slight corroboration of Fuller’s

testimony identifying Larkins as a participant in the crimes.

                                  15
     Here, the evidence showed that around 5:00 a.m. on August 4,

2016, a “device associated with Larkins’s phone number” showed

activity and “exhibited a pattern of communication with respective

cell networks” “in the area generally around Riverdale.” And,

between 5:19 a.m. and 5:38 a.m. on August 4, Larkins’s cell phone

showed activity and communicated with cell networks “in an area …

consistent with the same general geographic area that includes

Hadlock Street” and Leslie Avenue, where Smith’s shooting

occurred.

     In addition, ballistics evidence presented by the State

corroborated Fuller’s testimony regarding Larkins’s involvement in

the crime. Fuller testified that, on the morning of Smith’s shooting,

Larkins was armed with a firearm that “looked like an assault rifle

… but it shot 45 [caliber] rounds.” Among the ballistics evidence

collected at the scene were eight .45-caliber shell casings, which the

State’s firearms expert determined were all fired from the same

firearm. Additionally, while Slaughter—one of the eyewitnesses—

could not positively identify Larkins in a photographic lineup,

                                 16
Slaughter testified that it was dark when he witnessed the shooting,

and his description of the hairstyle worn by one of the shooters was

consistent with how Larkins wore his hair—i.e., in “dreads”—as

demonstrated by the selfie photograph posted to Larkins’s

Instagram account. Finally, the jury was properly instructed on the

requirement that an accomplice’s testimony be corroborated, and

having received this instruction, the jury was the proper arbiter of

the weight afforded to this other evidence. See Head, 316 Ga. at 413.

     Therefore, while the corroborating evidence in this case was

not overwhelming and may not have individually corroborated every

detail of Fuller’s testimony, we conclude that, taken together, the

evidence authorized the jury to conclude that the accomplice

testimony was corroborated. See Bowdery, 321 Ga. at 898

(concluding that cell phone records and testimony about the motive

for the shooting sufficiently corroborated the accomplice’s testimony

identifying the defendant as a participant in the crimes) (quotation

marks omitted); Head, 316 Ga. at 415 (concluding that evidence of

the defendant’s communications with his co-defendants before and

                                 17
after the crimes implicated him in the shooting and was sufficient to

corroborate the accomplice testimony about the defendant’s

involvement in the charged crimes); Poole v. State, 312 Ga. 515, 521–

23 (2021) (concluding that physical evidence from the crime scene, a

witness’s description of the shooting, and cell phone data showing

the defendant and his co-defendants communicating during time

span and in area of the shooting was sufficient to corroborate

accomplice testimony and sufficient to support the defendants’

convictions). And, though Larkins argues that this evidence “shows

only that a phone associated” with him “traveled to the area where

the murder occurred at the time it occurred,” we conclude that there

was enough evidence to corroborate Fuller’s statements, and that

the evidence as a whole—i.e., Fuller’s testimony combined with the

cell phone evidence, ballistics evidence, and eyewitness testimony—

was constitutionally sufficient to enable a rational trier of fact to

conclude beyond a reasonable doubt that Larkins was guilty of the

crimes of which he was convicted. See Head, 316 Ga. at 412. As such,

this claim fails.

                                 18
     2. Larkins next contends that the trial court committed plain

error by giving the jury a misleading and erroneous instruction in

which the trial court advised the jury that they could only consider

a testifying co-defendant’s out-of-court statement against that same

co-defendant. The specific jury instruction Larkins challenges on

appeal is as follows:

     Any out-of-court statement made by one of the
     Defendants on trial in this case after the alleged criminal
     act has ended may be considered only against the person
     who made the statement and only if you find that such
     statement was freely and voluntarily made. If you find
     that an out-of-court statement was made to the police
     freely and voluntarily by a Defendant on trial in this case,
     then you are to consider the statements only as against the
     particular Defendant who made it. And that would be
     Defendant Richard Ash in this case. A statement that
     Defendant Ash allegedly made while in custody has been
     offered for your consideration. Before you may consider
     this as evidence for any purpose you must determine
     whether the statement was voluntary, and if the
     statement was given in custody, whether the Defendant
     was properly advised of his Constitutional Rights.... The
     burden of proof is upon the State to establish that
     Defendant Ash’s statement was voluntary that is freely
     and willingly made. If you do not find that the statement
     was voluntary, you may not consider it for any purpose. If
     you find, however, that the statement was made while in
     custody and as a result of police questioning, you also
     must determine whether the Defendant was advised of

                                 19
     his Constitutional Rights and whether he clearly
     understood and knowingly gave up those rights…. The
     burden of proof is upon the State to establish that the
     warnings of all rights that I have described were given
     and that they were understood and knowingly given up by
     the Defendant. If you find, as mentioned above, that
     Defendant Ash’s statement was voluntary and that all of
     the warnings as to his Constitutional Rights were given,
     and that he understood the meaning of what was said and
     knowingly gave up those rights, then you may consider
     the statement as evidence. If so, then you must apply the
     general rules for testing the believability of witnesses and
     decide what weight, if any, you will give to all or any part
     of such evidence. If you fail to find that Defendant Ash was
     properly informed of those rights and that he understood
     and gave them up, you must disregard the statement
     entirely and give it no consideration in reaching your
     verdict....

(Emphasis supplied).

     At trial, the State admitted the out-of-court statement Ash

made to law enforcement at the time of his arrest, in which Ash

indicated he did not know “any of the facts or circumstances

surrounding the charge for which he was arrested” and “didn’t know

anybody” involved in Smith’s shooting, including Larkins and

Fuller. Ash also testified on his own behalf at trial and said, among

other things, that he did not know any of his co-defendants “as far


                                 20
as friends,” but only “through [his] little brother,” and that he was

not present when the shooting of Smith occurred.

     On appeal, Larkins argues that the above-quoted jury

instruction “is legally wrong” and “misinformed the jury that they

could not use [] Ash’s out-of-court statements at all to decide

[Larkins’s] fate,” even though “this law only applies to a non-

testifying co-[d]efendant” and “Ash testified at trial.” Larkins

further argues that, because Ash testified at trial and because “[a]

prior consistent statement may be used as substantive evidence,”

Ash’s out-of-court statement could have been used “as evidence to

benefit [Larkins’s] case” since that statement “included critical

impeachment” of both Fuller’s direct testimony and “the State’s

theory of the case” against Larkins, whom Ash did not inculpate in

this crime. Larkins contends that, without Ash’s prior consistent

statement, Ash’s trial testimony was weakened, thereby harming

Larkins.

     Larkins concedes that he did not object to the jury instructions

at trial, so we review this claim only for plain error. See OCGA § 17-

                                 21
8-58(b) (providing that the failure to timely object to an allegedly

improper jury instruction “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”).

     This Court has established the following test for determining

whether there is plain error in jury instructions under OCGA § 17-

8-58(b):

     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. If one prong of the plain error test is not
     satisfied, we need not address the other prongs of the test.

Campbell v. State, 320 Ga. 333, 348 (2024) (cleaned up). “Satisfying

this high standard is difficult, as it should be.” Baker v. State, 319 Ga.

                                   22
456, 462 (2024) (quotation marks omitted). And “it is not enough in

the plain-error context for an appellant to demonstrate that a trial

court committed actual legal error in charging the jury; rather, the

jury instruction in question must have an obvious defect rather than

a merely arguable defect.” Bowdery, 321 Ga. at 898–99 (quotation

marks omitted).

     We recognize that Bruton v. United States, 391 US 123 (1968),

does not apply when a co-defendant chooses to testify at trial, so the

trial court’s limiting instruction in this case was incorrect. See

Henderson v. State, 317 Ga. 66, 77 (2023) (holding that Bruton

excludes the out-of-court statement of a non-testifying co-defendant

when that statement is used to inculpate the defendant). But, here,

even assuming that the trial court clearly and obviously erred in

advising the jury that Ash’s out-of-court statement could only be used

against him, Larkins’s plain-error claim fails “because he has not

carried his burden of showing that the erroneous instruction actually

affected his substantial rights or likely affected the outcome of his

trial.” Holloway v. State, 320 Ga. 653, 662 (2025) (quotation marks

                                 23
omitted). See also Johnson v. State, 321 Ga. 511, 520 (2025)

(concluding that, even if “the trial court made a clear or obvious

error by failing to charge” the jury on the State’s burden of proof, the

appellant failed to demonstrate plain error because he failed to show

that “any such error probably affected the outcome of the trial”).

     As an initial matter, even if the jury believed—based on the

trial court’s above-quoted instruction—that it could not use Ash’s

exculpatory out-of-court statement to impeach Fuller or the State’s

theory of the case against Larkins, nothing in the trial court’s

instruction prevented the jury from using Ash’s trial testimony for

that purpose. And, to that end, while the trial court may have given

an erroneous instruction on the use of a testifying co-defendant’s

out-of-court statement, the trial court properly instructed the jury on

impeachment, witness credibility, and pretrial statements by

witnesses, including Ash, charging the jury that

     [t]o impeach a witness is to show that the witness is
     unworthy of belief. A witness may be impeached by
     disproving the facts to which the witness testified.... In
     determining the credibility of any witness whose
     credibility has been attacked as I have described above

                                  24
     and any testimony by that witness, you may consider,
     where applicable, evidence offered to support the
     credibility or believability of any such witness. Your
     assessment of a trial witness’s credibility may be
     [a]ffected by comparing or contrasting that testimony to
     statements or testimony of the same witness before the
     trial started. It is for you alone to determine whether
     there’s a reasonable explanation for any inconsistency in
     any witness’s pretrial statements and testimony when
     compared to the same witness’s trial testimony. As with
     all issues of witness credibility, you as the Jury must
     apply your common sense and reason to decide what
     testimony you believe or do not believe.

     Additionally, after instructing the jury that the testimony of a

single witness, if believed, is generally sufficient to establish a fact,

the trial court also properly charged the jury regarding the need for

accomplice corroboration and what constituted the requisite

corroboration, charging that

     [o]ne exception to the single witness rule is where the
     witness is an accomplice. The testimony of the accomplice
     alone is not sufficient to warrant a conviction. The
     accomplice’s testimony must be supported by other
     evidence of some type and that evidence must be such as
     would lead to the inference of the guilt of the accused
     independent of the testimony of the accomplice. It is not
     required that the supporting evidence be sufficient to
     warrant a conviction or that the testimony of the
     accomplice be supported in every material particular. The
     supporting evidence must be more than that a crime was

                                   25
     actually committed by someone. It must be sufficient to
     connect the accused with a criminal act and must be more
     than sufficient to merely cast upon the accused a grave
     suspicion of guilt. Slight evidence from another source
     that connects the accused with the commission of the
     alleged crime intends to show participation in it may be
     sufficient supporting evidence of the testimony of an
     accomplice. In order to convict[,] that evidence[,] when
     considered with all of the other evidence in this case[,]
     must be sufficient to satisfy you beyond a reasonable
     doubt that the accused is guilty. The sufficiency of
     supporting evidence of an accomplice is a matter solely for
     you the Jury to determine. The testimony of one
     accomplice may be supported by the testimony of another
     accomplice. Whether or not the testimony of one
     accomplice does in fact support the testimony of another
     accomplice is a matter solely for you to determine.

     As we have often explained, “[w]hen we are presented with a

claim that a particular instruction is misleading, we do not evaluate

jury charges in isolation, but rather consider them as a whole to

determine whether there is a reasonable likelihood the jury

improperly applied a challenged instruction.” Walker v. State, 311

Ga. 719, 724 (2021) (cleaned up). See also Johnson v. State, 312 Ga.

481, 490 (2021) (explaining that, when we evaluate whether the trial

court plainly erred in giving a jury instruction, we consider the jury

instructions as a whole). “When viewing the instructions as a whole,”

                                 26
we conclude that “any prejudice stemming from the trial court’s”

erroneous instruction to the jury about the use of a testifying co-

defendant’s out-of-court statement “was minimized by these other

instructions,” Holloway, 320 Ga. at 663, because they properly

instructed the jury on the law to be applied in this case. See Adkins

v. State, 314 Ga. 477, 483 (2022) (holding that the trial court did not

plainly err by failing to instruct the jury on a requested charge

because the charges as a whole demonstrated that “the concept was

covered by other jury instructions”); Johnson, 312 Ga. at 490–91

(holding that, after considering the jury instructions as a whole, the

appellant failed to show that the trial court’s omission of a portion of

the pattern charge amounted to plain error because the trial court’s

other instructions adequately instructed the jury on what the State

was required to prove and the elements of the charged crimes).

     Moreover,    Larkins’s    contention   that   Ash’s   out-of-court

statement would have benefited Larkins’s case and strengthened

Ash’s trial testimony is without merit because, although some of

Ash’s trial testimony was consistent with his out-of-court

                                  27
statement—namely, that Ash did not really know his co-defendants

and was not present for the shooting—much of it was not. On direct

examination at trial, Ash stated for the first time that, on the night

of August 3, he was at “the weed man’s house”; Fuller was also there;

Fuller agreed to give Ash a ride to the store when they left the house;

before reaching the store, Fuller ended up dropping off Ash

somewhere in Riverdale; and Ash accidentally dropped his cell

phone in Fuller’s car, which Ash’s little brother returned to him late

the next morning. Ash also conceded on cross-examination that

many of the details he testified to at trial were omitted or different

from the ones he gave to law enforcement during his custodial

interview, and Ash admitted that, as it pertains to Larkins, Ash had

a “phone number in [his cell] phone for Quicksand” and that the

“weed man’s house” he visited on the night of August 3 was the

house the State identified at trial as Larkins’s residence.

Additionally, as noted in Division 1, the other evidence against

Larkins—including     cell   phone     evidence,   ballistics   evidence,

eyewitness testimony, and Fuller’s testimony—was strong and

                                  28
authorized the jury to conclude that Larkins was guilty of the crimes

of which he was convicted. See Head, 316 Ga. at 412.

     Accordingly, after viewing the trial court’s instructions as a

whole and the strong evidence of Larkins’s guilt, “we cannot say that

the challenged instructional error likely affected the outcome of his

trial.” Priester v. State, 316 Ga. 133, 140 (2023). See also Jones v.

State, 302 Ga. 892, 897–98 (2018) (concluding that any error in the

jury instructions was harmless, given the court’s instruction as a

whole and the very strong evidence of defendant’s guilt).

     3. In his third enumeration of error, Larkins claims that his trial

counsel was constitutionally ineffective by failing to object when the

trial judge, in responding to a jury question, purportedly commented

on the evidence in violation of OCGA § 17-8-57(a)(1) (“It is error for

any judge, during any phase of any criminal case, to express or

intimate to the jury the judge’s opinion as to whether a fact at issue

has or has not been proved or as to the guilt of the accused.”). For

the reasons that follow, this claim fails under the standard set forth

in Strickland v. Washington, 466 US 668, 687 (1984).

                                  29
     “To prevail on a claim of ineffective assistance of counsel, a

defendant generally must show that counsel’s performance was

deficient and that the deficient performance resulted in prejudice to

the defendant.” Ealey v. State, 322 Ga. 509, 522 (2025) (citing Moss

v. State, 311 Ga. 123, 126 (2021)). “In reviewing either component of

the inquiry, all factual findings by the trial court will be affirmed

unless clearly erroneous.” Id. (quotation marks omitted).

     We have said that, “[t]o prove deficient performance, a

defendant must show that his counsel performed in an objectively

unreasonable way considering all the circumstances and in light of

prevailing professional norms.” Nesbit v. State, 321 Ga. 240, 246–47

(2025).

     The reasonableness of counsel’s conduct is examined from
     counsel’s perspective at the time of trial and under the
     particular circumstances of the case, and decisions
     regarding trial tactics and strategy may form the basis for
     an ineffectiveness claim only if they were so patently
     unreasonable that no competent attorney would have
     followed such a course.

Id. at 247 (cleaned up). And, to prove prejudice, “a defendant must

establish a reasonable probability that, in the absence of counsel’s

                                 30
deficient performance, the result of the trial would have been

different.” Ealey, 322 Ga. at 522. “If an appellant fails to meet his or

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

reviewing court does not have to examine the other prong.” Id.

(quotation marks omitted).

     The record reflects that, during deliberations, the jury

presented a note to the trial court, stating: “Can we have the phone

records? Can we have [G]oogle location records?” The note was

signed by “Juror 44.” The jurors were brought into the courtroom,

and the trial court inquired first about the jurors’ request for the

Google location records, to which Juror 44 responded, “At this time

we have what we need. We can make another request tomorrow if

we need that.” The following exchange then occurred:

     TRIAL JUDGE: So I’ll then treat the Google record’s
     request, the location record’s requests as satisfied. You
     still have requested phone records, and the Court’s
     interpretation of the note was that you wanted phone
     records, also the phone records –

     JUROR 44: For those three days.

     TRIAL JUDGE: For all of the Defendants?

                                  31
     JUROR 44: If that’s possible, yes.

     TRIAL JUDGE: All right. So that obviously is something
     that we’ll have an opportunity to work on this evening
     and we will ensure those are available tomorrow morning.

Larkins’s trial counsel did not object after this exchange occurred.

     At the motion-for-new-trial hearing, Larkins called his trial

counsel to testify, and during direct examination, Larkins’s

appellate counsel asked trial counsel if “there was a strategic reason

not to object” when the trial court commented to the deliberating

jury “that they would be receiving the telephone records for the

relevant period of time … of all the defendants.” Larkins’s trial

counsel explained that he did not interpret the trial court’s question

as a comment on the evidence, stating:

           [O]ur defense had always been that Mr. Larkins
     simply wasn’t involved. Secondarily, I believe that there
     were phone records introduced that were perhaps
     attributable to Mr. Larkins. And there was testimony of a
     co-defendant that was the main evidence in the case
     against Mr. Larkins.

          Those phone records, whatever phone records were
     introduced into evidence, were part of the record. My
     understanding is that the jury asked to review the phone

                                 32
     records that were introduced. And they asked for the
     phone records.

           And since there were separate defendants on trial,
     and the phone records were introduced for, I believe, all
     of the defendants on trial, the question from jurors was:
     Can we look at the phone records. And I think the Court’s
     statement was: For everybody? And she … may have used
     the words, defendants. But my impression and my
     understanding of the Court’s response was meaning for
     all of the people on trial or specific defendants or specific
     exhibits. And I think the jurors responded, for everybody.

          I didn’t — I didn’t see that as a comment on the
     evidence. I don’t see that as a comment on the evidence
     now. I did not object because I did not believe that was a
     comment on the evidence. That was simply a response to
     a request from the jurors to review the evidence already
     admitted in the case.

     On appeal, Larkins contends that his trial counsel performed

deficiently by failing to object to the trial judge’s clarifying question

about the cell phone records—i.e., “For all of the Defendants?”—

because, while evidence was presented from which the jury could

conclude that Larkins’s cell phone records were tendered into

evidence under the name “Quicksand,” the issue of whether it was

actually Larkins’s cell phone was ultimately one for the jury to

decide, and thus, the trial court’s question was an improper

                                   33
comment on the evidence under OCGA § 17-8-57(a)(1). Larkins

further contends that his trial counsel’s deficient performance

prejudiced the outcome of the case because the evidence of Larkins’s

guilt was scant and this critical piece of evidence linked Larkins to

the general area of the crime scene. Because we conclude that trial

counsel’s interpretation of the trial court’s response to the jury and

his decision not to object to that response were not “patently

unreasonable” under the circumstances, Nesbit, 321 Ga. at 247, we

see no deficiency in trial counsel’s performance and need not reach

prejudice. See Ealey, 322 Ga. at 522.

     Again, in assessing an ineffective-assistance-of-counsel claim,

“our inquiry is focused on the objective reasonableness of counsel’s

performance,” State v. Tedder, 305 Ga. 577, 584 (2019) (cleaned up),

which “is examined from counsel’s perspective at the time of trial

and under the particular circumstances of the case.” Nesbit, 321 Ga.

at 247. And “[d]ecisions regarding trial tactics and strategy may

form the basis for an ineffectiveness claim only if they were so

patently unreasonable that no competent attorney would have

                                 34
followed such a course.” Clark v. State, 321 Ga. 732, 738 (2025).

Larkins also “bears the burden of showing that his trial counsel’s

actions were patently unreasonable,” Nesbit, 321 Ga. at 249

(quotation marks omitted), and he has not done so here.

     Larkins concedes on appeal that the State connected the

“Quicksand phone number” to Larkins, and that the jury could have

concluded, based on the evidence, that “[Larkins’s] phone records

were tendered into evidence under the name ‘Quicksand.’” Given

that Larkins was one of three defendants on trial in this case and

that cell phone records connected to “Quicksand”—who the State

established to be Larkins—were admitted into evidence at trial, we

cannot say that trial counsel’s interpretation of the trial court’s

response to the jury—i.e., as “simply a response to a request from

the jurors to review the evidence already admitted in the case” that

the State contended was linked to the defendants—“was so patently

unreasonable” that no competent attorney in that position would

have interpreted the trial court’s response the same way. Nesbit, 321

Ga. at 247. Nor can we say that trial counsel’s decision not to object

                                 35
to the trial court’s response on this basis was deficient. See Copney

v. State, 322 Ga. 794, 800 (2025) (holding that, “[b]ecause

a reasonable attorney in trial counsel’s position could have made a

strategic decision not to object,” the appellant “has not met his

burden of demonstrating that his trial counsel was deficient”). For

these reasons, this ineffective assistance of counsel claim fails.

     4. Larkins next contends that the trial court abused its

discretion by admitting statements co-defendant Sherry made to

Fuller about Thompson’s shooting under the co-conspirator

exception set forth in Rule 801(d)(2)(E). See OCGA § 24-8-

801(d)(2)(E) (providing that “[a] statement by a coconspirator of a

party during and in furtherance of the conspiracy” shall “not be

excluded by the hearsay rule”). Larkins argues that Sherry’s

statements were not admissible as the statement of a co-conspirator

because they were “not made during the purported conspiracy to

murder the alleged victim” since “the conspiracy did not yet exist,”

citing United States v. Tombrello, 666 F2d 485, 490 (11th Cir. 1982).

This contention also fails.

                                  36
     At trial, Fuller testified that, on the night of August 3, 2016, he

learned details about Thompson’s shooting from Sherry. When

Fuller started to testify about what Sherry told him that night,

Mack’s trial counsel objected on hearsay grounds, prompting a

bench conference. The State argued that the statements were

admissible under OCGA § 24-8-801(d)(2)(E) as the statements of a

co-conspirator during the pendency of a conspiracy. Larkins and his

co-defendants argued that the statements were not admissible

under OCGA § 24-8-801(d)(2)(E) because they were a “mere

recitation of past events” and “not in the course and in furtherance

of a conspiracy.” The trial court overruled the objection and allowed

the testimony to be admitted. Fuller then testified that Sherry told

him Thompson had been shot inside Larkins’s house on the night of

August 3, and after the shooter fled and Larkins learned of the

shooter’s whereabouts, Sherry and others went to that location to

seek out the shooter.

     “To admit evidence under Rule 801(d)(2)(E), the State is

required to show by a preponderance of the evidence that a

                                  37
conspiracy existed, the conspiracy included the declarant and the

defendant against whom the statement is offered, and the

statement was made during the course and in furtherance of the

conspiracy.” Kemp v. State, 303 Ga. 385, 392 (2018) (quotation

marks omitted). This Court applies “a liberal standard in

determining whether a statement is made in furtherance of a

conspiracy, and statements that further the interests of the

conspiracy in some way meet this standard.” Mosley v. State, 307

Ga. 711, 716 (2020) (quotation marks omitted).

     We conclude that, here, even if Fuller’s testimony relaying

what Sherry said about the shooting of Thompson relied upon

inadmissible hearsay because the conspiracy to retaliate against

Thompson’s shooter did not yet exist at the time Sherry made these

statements to Fuller, “any error in admitting that testimony was

harmless under the nonconstitutional harmless error standard.”

Ealey, 322 Ga. at 521 (concluding that the admission of an officer’s

testimony relying upon inadmissible hearsay was harmless given

the other evidence of the defendant’s guilt). “The test for

                                38
determining nonconstitutional harmless error is whether it is highly

probable that the error did not contribute to the verdict.” Kingdom

v. State, 321 Ga. 363, 369 (2025). See also Head v. State, 316 Ga.

406, 416 (2023) (“A trial court’s error in allowing hearsay testimony

is harmless if is highly probable that the alleged error did not

contribute to the verdict.”). And, in determining whether the error

contributed to the verdict, “we review the record de novo and weigh

the evidence as we would expect reasonable jurors to have done.”

Ealey, 322 Ga. at 521 (quotation marks omitted). “Further, the

erroneous admission of hearsay is harmless where substantial,

cumulative, legally admissible evidence of the same fact is

introduced.” Head, 316 Ga. at 417 (quotation marks omitted).

     Viewing the record in this way, the evidence properly admitted

at Larkins’s trial showed that (1) Larkins associated with and/or

was friends with Thompson, Fuller, Ash, Mack, and Sherry; (2) on

the night of August 3, 2016, Thompson was shot at Larkins’s

residence as established by the testimony of police officers who

responded to the scene and to the hospital where Thompson was

                                 39
being treated for his injuries; (3) Fuller met with Larkins, Ash,

Mack, and Sherry during the early morning hours of August 4 and

reached an agreement—of which Fuller was a part—to go to the

Hadlock Street area where Thompson’s shooter might be located and

to shoot whoever they saw there; (4) Fuller identified Larkins as one

of the shooters; (5) an eyewitness saw someone with a similar

hairstyle and similar in appearance to Larkins at the scene; (6) shell

casings consistent with the type of firearm Larkins carried were

collected at the scene; and (7) Larkins’s cell phone records and cell

site location information placed Larkins’s cell phone at the crime

scene when Smith was murdered. Furthermore, Sherry’s statements

at issue were limited and largely cumulative of other evidence

admitted at trial, including the testimony of the police officers who

initially investigated Thompson’s shooting. See Evans v. State, 921

SE2d 310, 315 (2025) (concluding that, any error in the admission of

inadmissible hearsay was harmless where it was “cumulative of

other properly admitted evidence”).

     Given this substantial evidence of Larkins’s guilt and the fact

                                 40
that Fuller’s testimony relying on what Sherry told him prior to

Smith’s shooting was cumulative of other properly-admitted

evidence at trial, we conclude—after “weighing this evidence as we

would expect reasonable jurors to have done”—that it is highly

probable that any error on the part of the trial court in admitting

Fuller’s testimony was harmless and did not contribute to the guilty

verdicts. Head, 316 Ga. at 418 (cleaned up). See also Ealey, 322 Ga.

at 521; Kingdom, 321 Ga. at 369 (concluding that any error in

admitting a detective’s testimony relying on hearsay was harmless

given the other evidence pointing to the defendant’s guilt).

Therefore, Larkins’s hearsay claim fails.

     5. In his final enumeration of error, Larkins contends that the

law permitting prosecutors to make a non-substantive initial closing

argument is wrongly decided and that Larkins was prejudiced by

the non-substantive initial closing argument made by the State in

this case. Specifically, Larkins asserts that, during the State’s initial

closing argument, the prosecutor briefly summarized the general

facts of the case, without specifically referencing Larkins, leaving

                                   41
Larkins with nothing to rebut. And, while Larkins concedes that

Georgia courts have the discretion to allow prosecutors to waive

their initial closing argument, he argues that this practice

undermines the fairness of trial proceedings and directly contradicts

the language of OCGA § 17-8-71. 6 We see no merit to this claim.

      The record reflects that, prior to closing arguments, the trial

court instructed the jury as follows:

      Because the State has the burden of proof, the State has
      the opportunity to open and/or close at its election. What
      that means is that the State may use all of its time and
      proceed first or the State may reserve all [of] its time
      [and] proceed last or the State may split its time and
      proceed both first and last.

The State then advised the trial court that it would “open and close,”

and the State proceeded with its closing argument. During the

initial portion of the State’s closing argument, the prosecutor

addressed the circumstances surrounding Smith’s shooting—

including what she was doing prior to her death; the lack of

                        —————————————————————
      6 OCGA § 17-8-71 provides: “After the evidence is closed on both sides,

the prosecuting attorney shall open and conclude the argument to the jury. The
defendant shall be entitled to make a closing argument prior to the concluding
argument of the prosecuting attorney.”
                                     42
eyewitnesses; the fact that Fuller’s dropping of his phone led to law

enforcement’s awareness that Larkins and his co-defendants were

potentially involved in the shooting; the charges in the indictment;

the State’s burden of proof; the jurors’ duty in light of that burden;

the meaning of “reasonable doubt”; the jury’s obligations during

deliberation; the guilt of “the defendants”; and the applicable law.

     When the prosecutor concluded her initial closing argument,

Larkins’s trial counsel objected, arguing that the State did not

“argu[e] the facts in closing argument.” Larkins’s trial counsel then

stated:

     I understand that Georgia has traditionally allowed the
     State to waive opening, reserve closing or split the
     argument, however, that’s not the prevailing view in any
     state in the Union, it’s not the prevailing view in Federal
     Court, and since we have gone to the Federal Rules of
     Evidence, sooner or later we’re going to come to our senses
     and make a -- require the State to make a full and fair
     opening argument so that the Defense has an opportunity
     to rebut. So I’d make that argument on the record.

The trial court overruled the objection.

     The law concerning the State’s options with respect to closing

arguments—i.e., the choice to either waive opening argument or to

                                 43
conduct both an opening and concluding argument as permitted by

OCGA § 17-8-71—is well settled, and we see no reason to revisit our

long-standing precedent in this case. See Hyden v. State, 308 Ga.

218, 223 (2020) (concluding that, when asked to reconsider our

precedent regarding the State’s ability to waive its initial closing

argument, there was “no compelling reason to do so”).7 See also Petty

v. State, 283 Ga. 268, 270 (2008) (noting that “we have long held that

the trial court, in its discretion, may permit a waiver of the initial

closing argument”). Moreover, in this case, the State elected to open

and conclude, and despite Larkins’s argument to the contrary, the

record reflects that the State’s initial closing argument was

substantive.    That    initial   closing   argument      addressed     the

circumstances surrounding the shooting in this case; the evidence or

lack thereof; the State’s burden of proof; the jurors’ duties and

obligations; the charges in the indictment; and the law applicable to

those charges, among other things.

                       —————————————————————
     7 Even though Hyden was decided when the old evidence code was in

effect, OCGA § 17-8-71 is not part of the evidence code and was not impacted
by the passage of the new evidence code.
                                    44
     Therefore, given that the law permits the State to waive

opening argument, see OCGA § 17-8-71, which the State actually

elected not to do here, Larkins’s final claim also fails. See Lewis v.

State, 283 Ga. 191, 194–95 (2008) (concluding that OCGA § 17-8-71

permits the waiver of initial closing arguments by the State). See

also Petty, 283 Ga. at 270.

      Judgment affirmed. All the Justices concur, except Warren, P.
J., not participating.




                                 45