Ash v. State

• Decision Date: 02 November 2021
• Docket Number: S21A0771
• Citation: 865 S.E.2d 150
• Parties: ASH v. The STATE.
• Court: Georgia Supreme Court

865 S.E.2d 150

ASH

v.The STATE.

S21A0771

Supreme Court of Georgia.

Decided: November 2, 2021

Jackie Lynn Tyo, Georgia Public Defender Council Appellate Division, 270 Washington Street, Suite 5-145, Atlanta, Georgia 30334, for Appellant.

Richard Benjamin Caplan, Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, 4th Floor, Atlanta, Georgia 30303, Christopher M. Carr, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee.

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 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.

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 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 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 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 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 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 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 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 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

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...