CourtListener 10680361

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318 Ga. 681
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S24A0105. HOWARD v. THE STATE.

PETERSON, Presiding Justice.

Marquavious Howard appeals his felony murder conviction for

the 2017 shooting death of Jacorbin King.1 Howard argues that (1)

the evidence was insufficient to sustain his convictions, (2) his trial

1 The victim’s first name was spelled “Jakorbin” in the indictment but

“Jacorbin” in the trial transcript and the District Attorney’s brief on appeal.
King was shot and killed on the morning of April 30, 2017. On January 30,
2018, a Muscogee County grand jury returned an indictment charging Howard
with malice murder (Count 1), felony murder predicated on aggravated assault
(Count 2), aggravated assault (Count 3), and possession of a firearm during the
commission of a felony (Count 4). Four others — Jylonda Jones, Samuel Jones,
Tyler Teal, and Tramal Williams — were also charged with Counts 1-3, and
Samuel Jones, Tyler Teal, and Tramal Williams were charged with other
crimes, as well. Tramal Williams testified at Howard’s trial that he expected
his case to be transferred to juvenile court, while Howard’s other three co-
defendants pleaded guilty to charges less than murder. At a trial held in May
2018, a jury found Howard not guilty of malice murder or the firearm count,
but guilty of felony murder and aggravated assault. The trial court sentenced
Howard to life with the possibility of parole for felony murder; the aggravated
assault count merged. Howard filed a timely motion for new trial that was
amended by appellate counsel. Following a hearing, the trial court denied the
motion in an order entered on May 23, 2022. Howard filed a notice of appeal
on June 22, 2022. Because the record transmitted to this Court was incomplete,
the appeal was stricken from the docket on April 19, 2023. Upon transmission
of a more complete record, the case was re-docketed to this Court’s term
beginning in December 2023 and submitted for consideration on the briefs.
counsel was ineffective for failing to file a motion to suppress

evidence of a photo identification, and (3) the trial court erred in

excusing a juror for cause. We conclude that (1) the evidence was

sufficient, (2) Howard has not shown that counsel performed

deficiently in failing to move to suppress evidence of the photo

identification, and (3) Howard’s juror claim fails because he has not

shown that the selected jury was biased or incompetent. We

therefore affirm.

The evidence at trial showed as follows. On the night of April

29, 2017, a group of teenagers, including Tramal Williams

(“Tramal”), Samuel Jones (“Sam”), and Tyler Teal, went to King’s

Muscogee County apartment, planning to steal marijuana. Teal

carried a BB gun, and Sam carried his father’s firearm. At the

apartment, Tramal grabbed the marijuana and began to run out,

causing a fight that spilled out into the hallway. During the scuffle,

Sam fell down a stairwell and lost some belongings, including his

father’s gun.

Agitated about losing the items, Sam began making phone

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calls, asking for another gun and threatening to kill someone. Sam

called his older sister, Jylonda Jones (“Jylonda”), who lived in

Hoover, Alabama, and asked for her help; she agreed to come pick

him up and asked her 21-year-old boyfriend, Howard, to accompany

her on the approximately two-and-a-half-hour drive. On the

morning of April 30, 2017, Jylonda and Howard picked up Tramal,

Sam, and Teal in a white Toyota Camry and drove to King’s

apartment. Everyone went inside except for Jylonda. The group

initially came back to the car after being unable to find Sam’s

belongings, but then went back in a few minutes later after Howard

noted a bedroom door had been locked. After the group re-entered

the apartment, King emerged from behind the locked bedroom door,

a struggle ensued, and Howard shot King multiple times.

Tramal testified that he saw Howard with a firearm magazine

on the morning of the shooting. Tramal testified that King “barged

out into” Howard when King came out of the bedroom, then Tramal

heard gunshots as he ran out of the apartment building.

Sam testified that he saw Howard with a handgun just before

3
the group entered King’s apartment for the last time. Sam testified

that Teal became entangled with King when King “bust out of the

[bed]room[,]” and King made contact with Howard’s person, with

King “go[ing] for [Howard’s] mouth area.” Sam testified that he

pulled Teal off of King, then heard shots as he and Teal ran out of

the apartment.

Teal testified that he heard one shot while he was trying to

break up a fight between Howard and King, then ran away. Teal

testified that Howard was the only other member of their group who

was in the apartment when the victim was shot. Teal testified that

he did not see Howard with a gun but saw him clutching his pants

in such a manner that he could have been holding one.

Jylonda testified that she knew Howard to have a weapon

generally. Sam, Teal, and Tramal all testified that none of the three

of them had a firearm in the apartment on the morning of the

shooting.

A neighbor who heard the shooting, Rodrell Williams, saw the

group entering and leaving the apartment building. The neighbor

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said a person matching Howard’s description was carrying a

weapon, and was accompanied by three others who looked like “little

kids.” Rodrell’s wife called 911 around 7:00 a.m. and testified that

she heard gunshots while she was on that call.

Surveillance video capturing the area adjacent to King’s

apartment building showed the arrival of a white sedan on the

morning of April 30, 2017, then a group of four young men twice

walking away from, then running back toward, the car. In their trial

testimony, Jylonda, Sam, and Tramal identified Howard on the

surveillance video as being part of the group.

A jail bunkmate of Howard, Merrick Redding, testified that

Howard confessed to shooting King. According to Redding, Howard

told him that he rode to Columbus with his girlfriend to retrieve her

brother, then went to King’s apartment to retrieve a gun, shoe, and

glasses that had been lost in a botched robbery, and that when King

burst through a locked door, Howard shot him multiple times with

a .40-caliber, FN-brand pistol. Redding reported that Howard told

him that King and Teal had tussled, and King hit Howard in the

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mouth. According to Redding, Howard first shot King in the side,

then fired more shots as King was falling, then finally, because

Howard was upset about being hit in the mouth, Howard shot King

in the head, firing a total of four to six shots.

A firearms expert testified that the shell casings recovered

from the scene were consistent with having been fired by, among

other possible types of guns, a .40-caliber FN handgun and had all

been ejected from the same firearm. The expert also testified that

bullets recovered from the scene, as well as two bullets recovered

from King’s body, were consistent with having been fired by a .40-

caliber FN handgun and had all been fired from the same firearm.

The autopsy of King revealed four gunshot wounds, one in the head

and three in the abdomen or torso, with at least one indicating a

bullet entered the left side of the victim. The medical examiner

testified that the distance between King and the gun when it was

discharged could not be determined.

1. Howard first argues that the evidence was insufficient to

support his felony murder conviction. We disagree.

6
When evaluating the legal sufficiency of evidence, we view the

evidence in the light most favorable to the verdicts and inquire

whether a rational trier of fact could have found the defendant guilty

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

319 (99 SCt 2781, 61 LE2d 560) (1979). “Under this review, we must

put aside any questions about conflicting evidence, the credibility of

witnesses, or the weight of the evidence, leaving the resolution of

such things to the discretion of the trier of fact.” Mims v. State, 304

Ga. 851, 853 (1) (a) (823 SE2d 325) (2019) (citation and punctuation

omitted).

To support Howard’s conviction for felony murder, the evidence

presented at trial had to show that he caused King’s death while in

the commission of an aggravated assault with a deadly weapon. See

OCGA § 16-5-1 (c). The relevant portion of Georgia’s aggravated

assault statute requires the prosecution to show that a defendant

committed assault “[w]ith a deadly weapon or with any object,

device, or instrument which, when used offensively against a person,

is likely to or actually does result in serious bodily injury[.]” OCGA

7
§ 16-5-21 (a) (2). The crime of assault in Georgia requires that the

defendant “[a]ttempt[ed] to commit a violent injury to the person of

another; or . . . [c]ommit[ted] an act which place[d] another in

reasonable apprehension of immediately receiving a violent injury.”

OCGA § 16-5-20 (a). A jury may find a defendant guilty beyond a

reasonable doubt if the evidence shows either that he directly

committed the crime or that he was a “party thereto.” OCGA § 16-2-

20 (a). And a jury may infer a defendant’s criminal intent, and

thereby find him guilty as a party to a crime, “from his presence,

companionship, and conduct before, during, and after the offense.”

Willis v. State, 315 Ga. 19, 24 (2) (880 SE2d 158) (2022) (citation and

punctuation omitted).

Howard appears to argue that the evidence (1) was insufficient

to show that he directly committed felony murder, because the

evidence did not show that he shot King, and (2) was insufficient to

support his conviction on a party-to-the-crime theory, given a lack of

evidence that the group that entered King’s apartment the morning

of the shooting planned anything other than retrieving a weapon.

8
Howard does not challenge the evidence showing that he was in

King’s apartment when King was shot, instead arguing that the

evidence was “insufficient to prove anything other than Howard was

merely present at the scene[.]” But there was ample evidence

showing that he was the person who shot Howard. Tramal, Sam,

and Teal all testified that none of the three had a firearm, and they

all testified that they either saw Howard with a gun or that he

appeared to have one. This testimony was supported by the

testimony of King’s neighbor that he saw someone matching

Howard’s description carrying a gun. Teal also testified that Howard

was the only other member of their group who was in the apartment

when he heard King being shot. Moreover, Howard admitted to a jail

bunkmate that he shot King in the head and torso with a .40-caliber

FN pistol. And that account by the jail bunkmate was corroborated

by ballistics evidence consistent with King having been shot with a

.40-caliber FN handgun and autopsy findings that King was shot in

the head and torso.

Howard also appears to suggest that the evidence was

9
insufficient to show that he shot King because the jury necessarily

found that he was not the shooter when the jury found him not guilty

of the firearm possession count. But an acquittal on one count is not

itself a basis to challenge the sufficiency of the evidence as to

another count. See Kolokouris v. State, 271 Ga. 597, 598 (2) (523

SE2d 311) (1999); see also McElrath v. State, 308 Ga. 104, 108-109

(2) (a) (839 SE2d 573) (2020) (noting abolition of rule that

inconsistent verdicts warrant reversal).

Although Howard suggests that the evidence was insufficient

to show that he had the requisite intent to be guilty of the crime of

conviction, “[f]elony murder requires only that the defendant

possessed the requisite criminal intent to commit the underlying

felony — in this case, aggravated assault, which also does not

require intent to kill.” Mathews v. State, 314 Ga. 360, 365 (1) (877

SE2d 188) (2022) (citation and punctuation omitted). And the jury

could infer that Howard himself had the intent to injure King

violently when he shot at him multiple times, including in the head.

Howard has not shown that the evidence was insufficient to sustain

10
his conviction.

2. Howard next argues that trial counsel was ineffective for

failing to file a motion to suppress evidence of a photo identification

of him by Tramal that Howard argues was based on an

impermissibly suggestive process. We disagree.

As memorialized in a video recording that is part of the record,

Tramal was shown a group of individual photos during an interview

by investigators. He indicated, with some uncertainty, that one of

the photos looked like Sam’s sister’s boyfriend, whom he knew as

“Quay” and had not met prior to the morning of the shooting. Later

in the interview, Tramal was shown what appeared to be a one-page

photo array of six headshots, and definitively selected one of the

photos as “Quay,” stating affirmatively that he was sure it was him.

A detective who interviewed Tramal and was present for the photo

array presentations explained in his trial testimony that the initial

group of photos was taken from photos posted on Facebook, whereas

the second array included a driver’s license photo of Howard.

During Tramal’s trial testimony, both the individual photos

11
(State’s Exhibit 71) and the one-page photo array (State’s Exhibit

72) were admitted without objection. But when the State attempted

to publish to the jury the individual photos that comprised Exhibit

71 after their admission, Howard’s trial counsel moved for a mistrial

on the basis that, although he thought at the time they were

admitted that the photos had been provided in discovery, counsel in

fact had “never seen these pictures before[,]” and a photo of Howard

placed Howard’s character in question because the photo showed

him making gang signs and holding cash, which counsel said

suggested Howard was a drug dealer. The prosecutor represented

that the photos had been provided in discovery and shown to defense

counsel just prior to Tramal identifying them for admission. The

prosecutor said that although the photo of Howard showed him with

“large amounts of money in his hand[,]” it did not show him making

gang signs, and that the purpose of the photo was to demonstrate

how Howard was identified during the interview. The trial court

denied the motion for a mistrial but indicated “that particular

exhibit” — specifically referencing “71C” — would not go out with

12
the jury, which defense counsel agreed “satisf[ied his] concern.”

Tramal later testified without objection that he picked Howard

out of the photo array that was admitted as Exhibit 72. The detective

who interviewed Tramal also testified about Tramal picking

Howard’s photo out of an array as Jylonda’s boyfriend. The detective

acknowledged in his testimony that in viewing the original array,

Tramal said that he was not sure of his identification of Howard; the

detective noted that a hat Howard was wearing in the picture left a

shadow on his face. The State played portions of the video recorded

interview of Tramal for the jury, although the transcript is not

precise as to which portions.

Tramal also identified Howard in court as Jylonda’s boyfriend,

the person he knew as “Quay.” In his trial testimony, Tramal also

identified Howard on the video surveillance footage from outside of

King’s apartment. Tramal described riding in the car with Howard

both before and after the shooting, saying the ride to King’s

residence took at least 30 minutes. The video appears to show that

the sun had begun to rise before the group arrived at the apartment

13
building.

Howard argues that trial counsel was ineffective when counsel

“failed to file a motion to suppress the photo lineup” because the

identification procedure used by the detective when interrogating

Tramal was impermissibly suggestive.2 To prove his claim of

ineffective assistance of counsel, Howard must show that counsel’s

performance was deficient and that counsel’s deficient performance

prejudiced Howard’s defense. See Strickland v. Washington, 466

U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “If [a defendant]

fails to establish one of these two prongs, we need not examine the

2 To the extent that Howard made below separate arguments that
counsel was ineffective for failing to review any particular photo prior to trial
or failing to object promptly to their admission into evidence, he has abandoned
those arguments on appeal. Although he mentions those arguments in his brief
to this Court, he enumerates as error on appeal only that counsel was
ineffective for failing to “file a motion to suppress the photo lineup.” This is
insufficient to raise any such additional claims of ineffective assistance of
counsel for our review. See Mims v. State, 310 Ga. 853, 854 n.2 (854 SE2d 742)
(2021) (“An appealing party may not use its brief to expand its enumeration of
errors by arguing the incorrectness of a trial court ruling not mentioned in the
enumeration of errors.” (citation and punctuation omitted)). Moreover, because
he makes no substantive argument or citation of authority regarding trial
counsel’s alleged deficiencies in this regard, we would not address such claims
of ineffectiveness even if they were contained in his enumerations of error. See
former Supreme Court Rule 22; Session v. State, 316 Ga. 179, 185 (2) (887 SE2d
317) (2023).
14
other.” Payne v. State, 314 Ga. 322, 328 (3) (877 SE2d 202) (2022)

(citation and punctuation omitted). “To show deficient performance,

the defendant must demonstrate that counsel performed counsel’s

duties in an objectively unreasonable way, considering all of the

circumstances and in the light of prevailing professional norms.” Id.

at 328-329 (3) (citation omitted). “To establish prejudice, [a

defendant] must show that there is a reasonable probability that,

but for counsel’s unprofessional error, the result of the proceeding

would have been different.” Id. at 329 (3) (citation and punctuation

omitted). “In reviewing a ruling on a claim of ineffective assistance

of counsel, we defer to the trial court’s findings of fact unless they

are clearly erroneous, but we apply the law to the facts de novo.” Id.

(citation and punctuation omitted).

When a defendant claims that his counsel was ineffective for

failing to file a motion to suppress evidence, he cannot show that his

counsel performed deficiently unless he can show that the motion

would have been granted. See Armour v. State, 290 Ga. 553, 554-555

(2) (a) (722 SE2d 751) (2012) (appellant failed to establish deficient

15
performance where he failed to show that an objection to certain

eyewitness identifications of him during photo arrays would have

been sustained). A motion to suppress an out-of-court identification

by a witness as impermissibly suggestive in violation of due process

— the motion that Howard contends his counsel should have filed —

requires a showing that the identification was “so impermissibly

suggestive that it could result in a substantial likelihood of

misidentification[.]” Lewis v. State, 314 Ga. 654, 662 (3) (b) (878

SE2d 467) (2022) (citation and punctuation omitted). We employ a

two-step process to determine whether identification evidence meets

that test. See id. “First, we decide whether the identification

procedure used was impermissibly suggestive.” Id. (citation and

punctuation omitted). “Second, if a trial court properly concludes

that the State employed an impermissibly suggestive pre-trial

identification procedure, the issue becomes whether, considering the

totality of the circumstances, there was a substantial likelihood of

irreparable misidentification.” Id. (citation and punctuation

omitted). “If, however, a trial court properly determines that the

16
identification procedure is not unduly suggestive, it is not necessary

to consider whether there was a substantial likelihood of irreparable

misidentification.” Id. (citation and punctuation omitted).

Here, whether or not the photo identification procedure used

with Tramal was impermissibly suggestive, we conclude that

Howard has not shown that there was a substantial likelihood of

irreparable misidentification, such that a motion to suppress the

photo identification evidence would have succeeded. See Newton v.

State, 308 Ga. 863, 863, 867 (2) (843 SE2d 857) (2020) (concluding

that, even assuming photo array was impermissibly suggestive,

defendant had not shown a substantial likelihood of irreparable

misidentification, and thus trial court did not err in denying motion

to suppress). In evaluating the likelihood of irreparable

misidentification, a court considers whether, under the totality of

the circumstances, the identification is reliable. See id. at 867 (2).

Factors to consider include (1) a witness’s opportunity to view the

accused at the time of the crime; (2) the witness’s degree of attention;

(3) the accuracy of the witness’s prior description of the accused; (4)

17
the witness’s level of certainty at the confrontation; and (5) the

length of time between the crime and the confrontation. See id.

Here, Howard argues that because Tramal had not met him

prior to the day of the shooting, the likelihood of misidentification

was higher. But Howard does not grapple with the evidence showing

that Tramal had a significant opportunity to view him before and

after the shooting. As noted above, Howard and Tramal rode

together in a car both before and after the shooting, a journey that

was at least 30 minutes each way. As demonstrated by the

surveillance video, Tramal would have had the opportunity to view

Howard in daylight at least by the time that they arrived at King’s

apartment. Tramal and Howard also went into King’s apartment

twice together. And Tramal expressed certainty in identifying

Howard in the second, one-page photo array. The extensive

opportunities for Tramal to view Howard, as well as the certainty

with which he ultimately identified Howard, greatly lessened the

likelihood that any suggestiveness in the initial photo array

influenced the reliability of Tramal’s subsequent identifications of

18
Howard. See Curry v. State, 305 Ga. 73, 77 (2) (823 SE2d 758) (2019)

(despite trial court’s conclusion that State employed an

impermissibly suggestive pretrial identification procedure with

bystander witnesses, no abuse of discretion in overruling objection

to identification evidence, given factors such as witnesses’ “adequate

opportunity in full daylight” to view the defendant and high level of

certainty of identifications at the time of trial); Wright v. State, 294

Ga. 798, 800, 802-803 (2) (756 SE2d 513) (2014) (rejecting argument

that in-court identification should have been excluded for

substantial likelihood of irreparable misidentification, even though

witness had not seen the shooter prior to the night of the shooting

and was unable to select defendant definitively from photo array,

where witness had sufficient opportunity to observe shooter, gave

fairly accurate description of gunman, and testified that he was 95

percent certain of his identification). And although Tramal was

hesitant about identifying Howard in the initial photo array, the

uncontested evidence is that Howard was wearing a hat that cast a

shadow on his face in this photo, both explaining Tramal’s hesitance

19
about identifying him from that photo and making it less likely that

the viewing of this photo influenced Tramal’s subsequent, more

certain identifications of Howard. Having failed to show that an

objection to Tramal’s identification of Howard would have been

successful, Howard has failed to establish deficient performance by

his trial counsel for not filing a motion to suppress, so Howard’s

claim fails on the first prong of the ineffective assistance test. See

Pearson v. State, 311 Ga. 26, 29-31 (2) (855 SE2d 606) (2021) (no

deficient performance in failing to secure ruling on motion to

suppress identifications where totality of the circumstances did not

show that the trial court would have found a substantial likelihood

of misidentification); see also Walker v. State, 295 Ga. 688, 692-693

(3) (763 SE2d 704) (2014) (equating the admissibility of in-court

identification with whether suggestive out-of-court identification

leads to a substantial likelihood of irreparable misidentification).

3. Finally, Howard argues that the trial court erred in striking

a prospective juror for cause. We conclude that Howard has not

shown reversible error.

20
During voir dire, in response to the State’s question of whether

any member of the panel “may have some moral or religious or

philosophical beliefs that would prevent you from sitting in

judgment of another person,” Juror No. 18 said she did not “feel

comfortable judging” and did not “feel comfortable making the

judgment on someone else’s situation.” She added, “I just feel like I

pray that — for everyone and I just think that God is going to make

everybody better. But it doesn’t always happen that way, but I still

pray for them.” During follow-up questioning, Juror No. 18 stated

that she would follow the trial court’s instructions, “listen to all the

evidence[,] and follow what the [j]udge told [her] to do[,]” and she

told the prosecutor that if she “fe[lt] that [the] evidence [was] strong

enough, then it would have to be a guilty verdict.” But she also

expressed concern about “holding the young man’s life in [her]

hands[,]” noting she had five grandsons. And when the prosecutor

pressed her on whether she could “set aside” her “moral belief” and

thoughts about her grandsons and “decide this case without all of

that influencing [her,]” Juror No. 18 responded, “I don’t think I could

21
do that. I really don’t.” The State moved to strike Juror No. 18 for

cause. Howard’s counsel responded that the prospective juror should

not be struck, noting her statements that she would follow

instructions and vote guilty if the evidence were strong enough. The

State argued in turn that “her initial response and her final response

clearly indicates that she has so much compassion and cannot set

aside her moral convictions[.]” The trial court granted the State’s

motion to strike, saying, “I’m kind of falling back on primacy and

recency on this one.” Howard did not further object to the striking of

the juror.3

Whether or not the trial court abused its discretion in striking

Juror No. 18, Howard’s claim provides no grounds for reversal. “It is

well settled that a defendant does not have a right in a particular

3 The Attorney General argues that this claim is not preserved. But the

cases that the Attorney General cites do not address whether a defendant
needs to re-state an objection to excusing a juror for cause once the court has
ruled. See Hill v. State, 310 Ga. 180, 186-187 (3) (a) (850 SE2d 110) (2020);
Passmore v. State, 274 Ga. 200, 202 (5) (552 SE2d 816) (2001). And our
precedent indicates that a defendant does not need to re-state such an
objection. See Humphreys v. State, 287 Ga. 63, 69 (4) (694 SE2d 316) (2010),
disapproved on other grounds by Willis v. State, 304 Ga. 686, 706-707 (11) (a)
n.3 (820 SE2d 640) (2018).
22
juror but rather only has a right to a legal and impartial jury[.]”

Saylor v. State, 316 Ga. 225, 232-233 (3) (887 SE2d 329) (2023). The

erroneous dismissal for cause of a prospective juror for a reason that

is not constitutionally impermissible does not require reversal “if

there is no showing that a competent and unbiased jury was not

selected.” Id. at 233 (3). Howard does not argue that the jury that

was selected was biased or incompetent. Accordingly, his claim fails.

Judgment affirmed. All the Justices concur.

Decided March 19, 2024.

Murder. Muscogee Superior Court. Before Judge McBride.

Angela B. Dillon, for appellant.

Stacey S. Jackson, District Attorney, Gary D. Bergman, Tina G.

Stanford, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Meghan

H. Hill, Michael A. Oldham, Clint C. Malcolm, Senior Assistant

Attorneys General, for appellee.

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
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: March 19, 2024

S24A0105. HOWARD v. THE STATE.

PETERSON, Presiding Justice.

Marquavious Howard appeals his felony murder conviction for

the 2017 shooting death of Jacorbin King. 1 Howard argues that (1)

1 The victim’s first name was spelled “Jakorbin” in the indictment but

“Jacorbin” in the trial transcript and the District Attorney’s brief on appeal.
King was shot and killed on the morning of April 30, 2017. On January 30,
2018, a Muscogee County grand jury returned an indictment charging Howard
with malice murder (Count 1), felony murder predicated on aggravated assault
(Count 2), aggravated assault (Count 3), and possession of a firearm during the
commission of a felony (Count 4). Four others — Jylonda Jones, Samuel Jones,
Tyler Teal, and Tramal Williams — were also charged with Counts 1-3, and
Samuel Jones, Tyler Teal, and Tramal Williams were charged with other
crimes, as well. Tramal Williams testified at Howard’s trial that he expected
his case to be transferred to juvenile court, while Howard’s other three co-
defendants pleaded guilty to charges less than murder. At a trial held in May
2018, a jury found Howard not guilty of malice murder or the firearm count,
but guilty of felony murder and aggravated assault. The trial court sentenced
Howard to life with the possibility of parole for felony murder; the aggravated
assault count merged. Howard filed a timely motion for new trial that was
amended by appellate counsel. Following a hearing, the trial court denied the
motion in an order entered on May 23, 2022. Howard filed a notice of appeal
on June 22, 2022. Because the record transmitted to this Court was incomplete,
the appeal was stricken from the docket on April 19, 2023. Upon transmission
the evidence was insufficient to sustain his convictions, (2) his trial

counsel was ineffective for failing to file a motion to suppress

evidence of a photo identification, and (3) the trial court erred in

excusing a juror for cause. We conclude that (1) the evidence was

sufficient, (2) Howard has not shown that counsel performed

deficiently in failing to move to suppress evidence of the photo

identification, and (3) Howard’s juror claim fails because he has not

shown that the selected jury was biased or incompetent. We

therefore affirm.

The evidence at trial showed as follows. On the night of April

29, 2017, a group of teenagers, including Tramal Williams

(“Tramal”), Samuel Jones (“Sam”), and Tyler Teal, went to King’s

Muscogee County apartment, planning to steal marijuana. Teal

carried a BB gun, and Sam carried his father’s firearm. At the

apartment, Tramal grabbed the marijuana and began to run out,

causing a fight that spilled out into the hallway. During the scuffle,

of a more complete record, the case was redocketed to this Court’s term
beginning in December 2023 and submitted for consideration on the briefs.
2
Sam fell down a stairwell and lost some belongings, including his

father’s gun.

Agitated about losing the items, Sam began making phone

calls, asking for another gun and threatening to kill someone. Sam

called his older sister, Jylonda Jones (“Jylonda”), who lived in

Hoover, Alabama, and asked for her help; she agreed to come pick

him up and asked her 21-year-old boyfriend, Howard, to accompany

her on the approximately two-and-a-half-hour drive. On the

morning of April 30, 2017, Jylonda and Howard picked up Tramal,

Sam, and Teal in a white Toyota Camry and drove to King’s

apartment. Everyone went inside except for Jylonda. The group

initially came back to the car after being unable to find Sam’s

belongings, but then went back in a few minutes later after Howard

noted a bedroom door had been locked. After the group reentered the

apartment, King emerged from behind the locked bedroom door, a

struggle ensued, and Howard shot King multiple times.

Tramal testified that he saw Howard with a firearm magazine

on the morning of the shooting. Tramal testified that King “barged

3
out into” Howard when King came out of the bedroom, then Tramal

heard gunshots as he ran out of the apartment building.

Sam testified that he saw Howard with a handgun just before

the group entered King’s apartment for the last time. Sam testified

that Teal became entangled with King when King “bust out of the

[bed]room[,]” and King made contact with Howard’s person, with

King “go[ing] for [Howard’s] mouth area.” Sam testified that he

pulled Teal off of King, then heard shots as he and Teal ran out of

the apartment.

Teal testified that he heard one shot while he was trying to

break up a fight between Howard and King, then ran away. Teal

testified that Howard was the only other member of their group who

was in the apartment when the victim was shot. Teal testified that

he did not see Howard with a gun but saw him clutching his pants

in such a manner that he could have been holding one.

Jylonda testified that she knew Howard to have a weapon

generally. Sam, Teal, and Tramal all testified that none of the three

of them had a firearm in the apartment on the morning of the

4
shooting.

A neighbor who heard the shooting, Rodrell Williams, saw the

group entering and leaving the apartment building. The neighbor

said a person matching Howard’s description was carrying a

weapon, and was accompanied by three others who looked like “little

kids.” Rodrell’s wife called 911 around 7:00 a.m. and testified that

she heard gunshots while she was on that call.

Surveillance video capturing the area adjacent to King’s

apartment building showed the arrival of a white sedan on the

morning of April 30, 2017, then a group of four young men twice

walking away from, then running back toward, the car. In their trial

testimony, Jylonda, Sam, and Tramal identified Howard on the

surveillance video as being part of the group.

A jail bunkmate of Howard, Merrick Redding, testified that

Howard confessed to shooting King. According to Redding, Howard

told him that he rode to Columbus with his girlfriend to retrieve her

brother, then went to King’s apartment to retrieve a gun, shoe, and

glasses that had been lost in a botched robbery, and that when King

5
burst through a locked door, Howard shot him multiple times with

a .40-caliber, FN-brand pistol. Redding reported that Howard told

him that King and Teal had tussled, and King hit Howard in the

mouth. According to Redding, Howard first shot King in the side,