Burks 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
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: October 21, 2025

S25A0817. BURKS v. THE STATE.

ELLINGTON, Justice.

Rufus L. Burks appeals his convictions for felony murder and

other crimes in connection with the death of Caleb Short. 1 Burks

1 The crimes occurred on the night of January 3, 2016. On July 26, 2016,

a Muscogee County grand jury returned an indictment charging Burks,
Raheam Gibson, and Jervarceay Tapley with malice murder (Counts 1-3);
felony murder (Counts 4-6); kidnapping (Count 7); first-degree burglary (Count
8); and theft by taking (Counts 9-10), in connection with the deaths of Caleb
and Gloria Short and Gianna Lindsey. At a jury trial that began on February
5, 2018, Gibson and Tapley decided to plead guilty, evidence was presented
through February 12, and the jury deliberated from February 13 through
February 19, when it found Burks guilty on Counts 6-10, which included the
felony murder of Caleb Short (Count 6). The jury was unable to reach a
unanimous verdict on the remaining charges, so the trial court declared a
mistrial on Counts 1-5, and those counts were subsequently nolle prossed. The
trial court entered the final disposition on October 12, 2018, nunc pro tunc to
April 6, 2018, and sentenced Burks to life in prison with the possibility of
parole for one count of felony murder (Count 6); life in prison with the
possibility of parole for kidnapping (Count 7), to run concurrently with Count
6; 20 years in prison for first-degree burglary (Count 8), to run consecutively;
and ten years in prison for each count of theft by taking (Counts 9-10), to run
concurrently.
Burks filed a motion for new trial on April 9, 2018, which he twice
contends that the evidence was insufficient to support his

convictions and that the trial court erred by admitting post-incision

autopsy photographs of the deceased, giving an “Allen2 charge” to

the jury instead of granting a mistrial, denying Burks’s motion for a

change of venue based on pretrial publicity, and denying his motion

to impanel a new jury after the jurors initially saw Burks alongside

his co-defendants during voir dire but later saw only Burks following

his co-defendants’ decisions to plead guilty. For the reasons

explained below, we affirm.

1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed that, on January 3, 2016, Burks,

amended through new counsel, on October 31, 2019, and March 5, 2020. After
a hearing, the trial court denied the motion for new trial on February 24, 2021.
On July 23, 2021, the trial court entered an order providing Burks 30 days to
file a notice of out-of-time appeal because counsel had not been served with a
copy of the trial court’s order denying the motion for new trial. Burks then filed
a notice of appeal on August 18, 2021, but, in Case No. S24A0524, this Court
dismissed his appeal as untimely. On March 14, 2024, the trial court set aside
its original order denying the motion for new trial, and, on April 5, 2024, the
court re-entered the same. See Veasley v. State, 272 Ga. 837, 838-39 (2000);
Cambron v. Canal Ins. Co., 246 Ga. 147, 148-49 (1980). Burks then filed a
timely notice of appeal on April 22, 2024, and the case was docketed in this
Court to the April 2025 term and submitted for a decision on the briefs.

2 Allen v. United States, 164 US 492 (1896).

2
Raheam Gibson, Jervarceay Tapley, and Marcus Dermer formed a

plan to “do a lick,” or burglarize, the house of Tapley’s family friend,

Caleb Short, where Caleb lived with his mother Gloria Short,

Gloria’s granddaughter Gianna Lindsey, and Gloria’s husband

Robert Short. Dermer decided not to join, but the others in the group

“met up” later in South Columbus and headed toward the Shorts’

residence, with Gibson and Burks riding on Burks’s moped and

Tapley riding on a bike. At one point, Tapley discarded the bike and

walked, and at another point, they “ditched” the moped in the woods,

and they all walked the rest of the way. Their approximately three-

hour trip to the Shorts’ house was confirmed by surveillance video

and cell phone record3 analysis, and they arrived between 10:00 p.m.

and 11:00 p.m.

Gibson testified to the following. When the group arrived at the

house, they walked up the driveway, and Gibson and Burks followed

3 Phone records also showed that, on the night of January 3, Burks’ cell

phone had several incoming and outgoing phone calls with his father’s cell
phone between 9:13 p.m. and 11:35 p.m.

3
Tapley through the gate to the backyard and around the house to

Caleb’s window. Tapley called Caleb’s cell phone, and Caleb opened

his window. Through the window, Tapley told Caleb to come to the

house’s front door, and Caleb did. When Caleb came out of the front

door, Tapley tackled him and pinned him on the ground and asked

for help, and Burks helped Tapley. Burks and Tapley took Caleb

around to the opposite side of the house to the backyard. When they

moved Caleb to the side of the house, they “[s]tarted wrapping him

up in tape.” Caleb was telling Tapley to “stop playing” around. After

they moved Caleb to the backyard, Gibson saw Tapley come from

the backyard and go into the front door of the house.

Gibson further testified that he stood outside for approximately

20 or 30 minutes, could not hear anything going on inside the house,

and did not see Burks again until they were all leaving. Gibson and

Burks went into the garage and got into the Shorts’ Volkswagen,

which had clothes and about “seven or eight pairs of … Jordan’s and

Nike’s” in shoe boxes in the back seat, and Burks drove back to

Columbus with Gibson riding in the passenger seat while Tapley

4
was still in the house. Burks drove the Volkswagen around for a

little while until they were able to get in contact with Tapley, who

told them where to meet him, and when Burks and Gibson arrived,

Tapley was sitting in the driver’s seat of an SUV that Gibson had

seen parked in the driveway at the Shorts’ residence before they left.

Burks and Tapley began unloading items from the Volkswagen into

the SUV, and Tapley instructed Burks and Gibson to walk to his

house. Gibson arrived at Tapley’s home sometime around midnight

or 1:00 a.m. and saw the clothes that had been taken from the

Shorts’ house laid out on Tapley’s bed.

Robert Short testified to the following. Robert left his house

around 6:00 p.m. on January 3 for his overnight work shift. He

arrived back at his home after 7:00 a.m. on January 4 and saw his

garage door open, his 2004 GMC Envoy and Volkswagen Beetle

missing, and the attic stairs hanging down in the garage. He ran

inside and found his wife Gloria lying face down in the hallway with

her hands taped at the wrist and no pulse. In the living room, he

saw his granddaughter Gianna lying face up, also with no pulse, and

5
he found his son Caleb in a closet lying on his back, also with no

pulse. In addition to the two missing automobiles, items missing

from his home included Caleb’s Jordan shoes, a PlayStation 4,

several video games, $400 in collectible coins, a case of wine, and

cash.

Law enforcement arrived at the Shorts’ residence around 9:00

a.m. on January 4 following Robert’s 911 call and discovered the

dead bodies of Caleb, Gloria, and Gianna. One crime scene

investigator with the Columbus Police Department testified that

inside the house, officers found multiple bloodstains, blood spatter,

and pools of blood; fragments of broken pot lids; a bloody 20-pound

dumbbell next to Gianna’s body; bloody shoe prints; an open desk

drawer; open phone boxes; a game on the entertainment center but

no gaming system or console; one jewelry case with jewelry hanging

out of it, another jewelry case with the drawer open, and jewelry on

the floor; a glass vase tipped over; a table that had been pushed out

of place, a broken chair, and a broken lamp; an open purse and items

on the couch; and pieces of duct tape and blue painter’s tape.

6
Another crime scene investigator testified that, in Caleb’s bedroom,

he found an open window, empty Apple iPhone cases on the bed,

drawers pulled out, the room in disarray, and a second 20-pound

dumbbell. Photographs entered into evidence depicted the rooms in

which the victims were found, showing blood spatter and pools of

blood along with debris from various broken items, including a

broken teapot covered in blood, a broken lamp, and a broken red pot

lid. Officers found Caleb’s body in the master bedroom closet with

his feet and hands bound by electrical tape, blue painter’s tape on

other areas of his body, substantial injury to his face and head area,

blood pooling from his head, and teeth on the floor. Caleb had dirt

and grass stains on his pants and grass stains on his socks, and

there were grass and leaves in some of the tape bindings and around

his body, suggesting he had been bound outside. Based on Caleb’s

positioning and the blood spatter around him, it appeared to crime

scene investigators that he had been beaten, resulting in a massive

loss of blood.

Law enforcement located the stolen vehicles parked

7
approximately two miles from Tapley’s residence and discovered

several bags full of clothing and blood scattered throughout the

vehicles. Pursuant to a search warrant, officers later executed a

search of Burks’s residence and located a pair of Caleb’s Jordan

sneakers.

Marcus Dermer testified that, around 1:00 a.m. on the morning

of January 4, Tapley called and said he had “some stuff” for Dermer

to pick up. Dermer woke up around 9:00 a.m. that same morning

and saw a white trash bag at his door containing multiple pairs of

Jordan shoes, T-shirts, and pants, as well as a note that identified

the bag’s contents as “old clothing.” A photo admitted into evidence

showed Dermer and Burks wearing various items that belonged to

Caleb, with Dermer wearing Caleb’s shirt and Burks wearing

Caleb’s shoes. Dermer testified that prior to January he had never

seen Burks in the shoes he was wearing in that photo. Dermer also

saw Burks ask on Facebook if anybody had a power cord to a

PlayStation, but prior to January, Dermer had never seen a

PlayStation at Burks’s house.

8
A cell phone forensics analyst with the Columbus Police

Department testified that Facebook messages extracted from

Burks’s phone pursuant to a search warrant revealed a conversation

between Burks’s account and another person that took place on

January 4, 2016, where Burks asked if the person had a power cord

for a PlayStation 4, and when the person replied affirmatively,

Burks’s account replied “I got a ps4.” In another Facebook message

on January 4, Burks’s account asked Tapley to call him, and when a

message from Tapley’s account informed Burks that Tapley could

not call, Burks told him, “Look on the news.” Tapley replied, “I did.

Nothing happened. Forget everything bruh. No snitching. No telling

anybody what we did. Straight up.” Another person testified that

Burks organized, via a series of Facebook messages, an exchange of

PlayStation 4 video games and that Burks drove a moped to the

exchange on January 5.

2. Burks contends that the evidence was insufficient to support

his convictions as a matter of constitutional due process for felony

murder, kidnapping, burglary, and theft by taking. Burks argues

9
that there was “insufficient evidence to support [his] conviction of

Count 6, Felony Murder” because he never entered the residence

and because the Facebook and cell phone evidence showed that he

remained outside of the residence the entire time.4 He argues that

none of Caleb’s possessions were found at his residence, that Burks’s

DNA was not found in the stolen vehicles, that there was no evidence

that he moved Caleb’s body, and that there was no evidence that he

actively participated in the crimes. 5 For the reasons explained

below, Burks’s claim fails.

When this Court evaluates a challenge to the sufficiency of the

evidence, “we view all of the evidence presented at trial in the light

4 Burks also argues that the State failed to prove that he acted with

malice aforethought and, thus, the evidence was insufficient to prove that he
was guilty of “[m]alice murder, one of the charges against” him. But the jury
did not find Burks guilty of any of the malice murder counts, and as such, any
argument about the malice murder charges is moot following the dismissal of
those counts. See OCGA § 16-5-1(a) (requiring a person who commits malice
murder to have acted “with malice aforethought”). See also Burley v. State, 316
Ga. 796, 803 (2023) (“[T]he main difference between felony murder and malice
murder is that felony murder does not require proof of malice or intent to kill.”
(citation omitted)).

5 We note that Burks was convicted only of the felony murder of Caleb.

The counts charging him with the felony murders of Gloria and Gianna were
nolle prossed after the jury could not reach a verdict as to those counts.
10
most favorable to the verdict and ask whether any rational trier of

fact could have found the defendant guilty beyond a reasonable

doubt of the crimes of which he was convicted.” Jones v. State, 304

Ga. 594, 598 (2018) (citing Jackson v. Virginia, 443 US 307, 318-19

(1979)). “This Court does not reweigh evidence or resolve conflicts in

testimony but rather defers to the jury’s assessment of the weight

and credibility of the evidence.” Davis v. State, 316 Ga. 418, 420

(2023) (citation and quotation marks omitted).

A person commits felony murder when, “in the commission of

a felony, he or she causes the death of another human being

irrespective of malice.” OCGA § 16-5-1(c). From the statutory

language of OCGA § 16-5-1(c), “our decisional law has identified

certain related prerequisites the State must establish to convict a

defendant of felony murder.” Eubanks v. State, 317 Ga. 563, 568

(2023). First, the underlying felony must have been “inherently

dangerous,” in that the underlying felony was one from which it was

reasonably foreseeable that death could result. Id. Second, the

defendant’s conduct must have been the “proximate cause” of the

11
death, i.e., the death must have been the “probable or natural

consequence” of the defendant’s conduct. Id. And third, the death

must have been caused “in the commission of” the predicate felony.

Id. Further, felony murder “require[s] that the defendant possess

the requisite criminal intent to commit the underlying felony.”

Burley, 316 Ga. at 803 (citation and quotation marks omitted). “That

is because proof of the elements of the offense of felony murder

necessarily requires proof of the elements of the predicate felony.”

Id. (citation, punctuation, and quotation marks omitted).

The crime of aggravated assault, as charged in the indictment,

is committed when a person assaults another with an object which,

when used offensively against a person is likely to result in serious

bodily injury. See OCGA § 16-5-21(a)(4); see also Stroud v. State, 318

Ga. 744, 749 (2024) (“Felony 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.”).

“Every person concerned in the commission of a crime is a party

12
thereto and may be charged with and convicted of commission of the

crime.” OCGA § 16-2-20(a). To convict someone as a party to a crime,

the State must show “that he intentionally aided or abetted in the

commission of the crimes or intentionally advised, encouraged,

counseled, or procured someone else to commit the crimes.” Stroud,

318 Ga. at 749 (citation and quotation marks omitted). Criminal

intent is a question for the jury and “may be inferred from that

person’s conduct before, during, and after the commission of the

crime.” Poole v. State, 312 Ga. 515, 519 (2021) (citation and

quotation marks omitted). “[M]ere presence at the scene of a crime

is not sufficient evidence to convict one of being a party to a crime,

[but] criminal intent may be inferred from presence, companionship,

and conduct before, during, and after the offense.” Id (citation and

quotation marks omitted).

Here, Burks contends that, as a matter of constitutional due

process, the evidence was insufficient to show that he was guilty

beyond a reasonable doubt of felony murder. The evidence presented

at trial, however, was sufficient as a matter of constitutional due

13
process to conclude that Burks was guilty of felony murder, at least

as a party to the crime. To that end, the evidence showed that Tapley

told Burks and Gibson his plan to burglarize the Shorts’ residence,

Burks and Gibson traveled alongside Tapley for nearly three hours

to the home, and Burks acted in concert with Tapley to carry out his

plan to burglarize the home. Although it is true that the phone

records show that, at various times between 9:13 p.m. and 11:35

p.m. on January 3—a timeframe that overlaps with when Gibson

testified that the group was present at the Shorts’ residence—Burks

was making and receiving phone calls, Gibson testified that Burks

helped Tapley bind Caleb with tape and move him through the grass

to the other side of the home. Caleb was found with severe blunt

force trauma to the head and significant pooling of blood around him

in the bedroom closet. The photographs entered into evidence

showed extensive amounts of debris, with broken pot lids and other

broken and bloodied items strewn across the house, and the medical

examiner testified that Caleb died from blunt force trauma to the

head. From this evidence, a reasonable jury could have inferred that

14
Burks acted in concert with Tapley to commit the crime of

aggravated assault against Caleb and, thus, there was sufficient

evidence to support the jury’s finding that Burks was guilty of felony

murder beyond a reasonable doubt as a party to a crime. See OCGA

§ 16-2-20(a); Stroud, 318 Ga. at 749.

Likewise, there was sufficient evidence from which a

reasonable jury could have found Burks guilty beyond a reasonable

doubt as to the kidnapping, burglary, and theft by taking counts. As

to the kidnapping of Caleb, Gibson testified that Tapley and Burks

forcefully took Caleb to the other side of the house and bound him

using duct tape. “A person commits the offense of kidnapping when

such person abducts or steals away another person without lawful

authority or warrant and holds such other person against his or her

will.” OCGA § 16-5-40(a). Law enforcement found Caleb bound at

the hands and feet with tape that had pieces of grass and leaves

stuck to the tape, indicating that he had been bound outside and

moved into the house where he was ultimately found dead. Thus,

the evidence at trial was sufficient to support Burks’s conviction for

15
kidnapping Caleb.

The evidence was also sufficient for a reasonable jury to convict

Burks for first-degree burglary. “A person commits the offense of

burglary in the first degree when, without authority and with the

intent to commit a felony or theft therein, he or she enters or

remains within an occupied, unoccupied, or vacant dwelling house

of another….” OCGA § 16-5-1. Gibson testified that he, Tapley, and

Burks made plans to “do a lick,” or burglarize, the Shorts’ home. He

also testified that he and Burks entered the garage of the Shorts’

home to take the Volkswagen, stolen items from the Shorts’ home

were found in Burks’s residence, and Burks sold PlayStation 4 video

games, was asking if anyone had a PS-4 power cord online, and told

someone that he “got a ps4” in the days following the crimes. Thus,

the evidence at trial was sufficient to show that Burks was a party

to this crime and to support his conviction for first-degree burglary.

Lastly, the evidence was sufficient for a reasonable jury to find

Burks guilty of theft by taking of the two vehicles. “A person

commits the offense of theft by taking when he unlawfully takes or,

16
being in lawful possession thereof, unlawfully appropriates any

property of another with the intention of depriving him of the

property, regardless of the manner in which the property is taken or

appropriated.” OCGA § 16-8-2. Gibson testified that he and Burks

left the home in the Shorts’ Volkswagen and later met up with

Tapley, who was in possession of the other stolen vehicle which had

been taken as part of the group’s common criminal scheme, before

the vehicles were eventually found near Tapley’s residence. Burks

contends that there was no physical evidence such as hair, blood, or

fibers of his collected from the car, but the State “was not required

to produce any physical evidence.” Jackson v. State, 307 Ga. 770, 772

(2020) (citation and quotation marks omitted). “Although the State

is required to prove its case with competent evidence, there is no

requirement that it prove its case with any particular sort of

evidence.” Id. (citation and quotation marks omitted). Burks

physically took the Volkswagen from the Shorts’ garage and was

part of the group that planned to “do a lick” of the Shorts’ home,

which included the theft of the GMC Envoy, such that a reasonable

17
jury could find Burks guilty of the theft of both vehicles as a party

to the crime. Accordingly, the evidence was sufficient to support

Burks’s convictions for theft by taking of both vehicles.

3. Burks next contends that the trial court abused its

discretion in admitting post-incision autopsy photographs of the

victims over his objection because they were more prejudicial than

probative under OCGA § 24-4-403 (“Rule 403”). Because the post-

incision photographs helped the medical examiner explain the

nature and extent of the injuries that led to the death of the victims,

their probative value was not substantially outweighed by the

danger of unfair prejudice under Rule 403, and the court did not

abuse its discretion in admitting the photographs.

While the medical examiner was on the stand, outside of the

jury’s presence, the parties discussed which autopsy photographs

would be admitted, and Burks objected to the post-incision

photographs, arguing that the amount of trauma and amount of

blood loss were apparent from the crime scene photos and that they

were more prejudicial than probative. On voir dire, the medical

18
examiner, Dr. Natasha Grandhi, testified that the ten post-incision

photographs in question depicted blunt force trauma that would be

potentially fatal, skull fractures, and the trauma associated with the

fractures that could contribute to the cause of death. Dr. Grandhi

explained that fractures of enclosed spaces could cause changes in

pressure, trauma to underlying organs, brain bleeding, or blood loss,

which could all contribute to potential causes of death, and that

some of these photographs showed bone displacement that changes

the environment of the brain and could potentially cause death of

cells. The medical examiner confirmed that these photographs were

necessary for her to adequately explain to the jury the nature of the

injuries and resulting effect of those blunt force traumas. The trial

court admitted the post-incision photographs over Burks’s objection.

Back in the jury’s presence, Dr. Grandhi testified that Exhibits

356 and 357, two of the post-incision photographs from Caleb’s

autopsy, showed areas of bleeding within the scalp and extensive

fractures and that some of the fractures were comminuted, meaning

that the skull broke into separate pieces with some pieces still

19
adhered to the scalp while other pieces had become dislodged and

had gone into the underlying brain tissue, demonstrating significant

enough trauma to cause damage to that tissue. Based on the

autopsy, Dr. Grandhi determined the cause of death to be multiple

blunt force injuries.

Burks argues that, under the Rule 403 balancing test, the post-

incision autopsy photographs unduly prejudiced him because they

were gruesome and were not necessary to show anything about the

cause of death that the pre-incision photographs had not already

shown or to rule out other potential causes of death.

“In general, the admissibility of autopsy photographs is

governed by OCGA §§ 24-4-401, 24-4-402, and 24-4-403.” Johns v.

State, ___ Ga. ___, ___ (2025), S25A0875, slip op. at 11 (Ga. Aug. 12,

2025). An autopsy photograph is relevant evidence if it has “any

tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than

it would be without the evidence,” OCGA § 24-4-401, and a relevant

autopsy photograph is generally admissible as evidence, see OCGA

20
§ 24-4-402. However, such a photograph “may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” OCGA § 24-4-403. “In

reviewing the admission of evidence under Rule 403, we look at the

evidence in a light most favorable to its admission, maximizing its

probative value and minimizing its undue prejudicial impact.”

Salvesen v. State, 317 Ga. 314, 317 (2023) (citation and quotation

marks omitted). “Decisions regarding relevance are committed to

the sound discretion of the trial court, and the exclusion of relevant

evidence under Rule 403 is an extraordinary remedy that should be

used only sparingly.” Albury v. State, 314 Ga. 459, 461 (2022)

(citation and quotation marks omitted). “Autopsy photographs may

be relevant and probative to show the nature and location of a

victim’s injuries, even if the cause of death is not disputed.” Id.

(citation and quotation marks omitted).

In this case, the post-incision photographs were relevant to

21
illustrate Dr. Grandhi’s testimony about Caleb’s cause of death, as

they showed areas of bleeding under the scalp, underlying brain

tissue damage, and the extent of the skull fractures that were not

visible pre-incision. Thus, the photographs were relevant to show

the nature and location of the injuries and “corroborated the State’s

evidence of the circumstances of the killing.” Moore, 307 Ga. at 295

(citation and quotation marks omitted). See also Albury, 314 Ga. at

461. Moreover, the probative value of the photographs was high

because they visually depicted some of the considerations the

medical examiner made when determining the cause of death, and

“although the photographs may have been graphic, we cannot say

the trial court abused its discretion in concluding that their

probative value was not substantially outweighed by the danger of

unfair prejudice.” Johnson v. State, 316 Ga. 672, 683 (2023). See also

Salvensen, 317 Ga. at 317 (“[T]he mere fact that the photographs

were gruesome does not, as a general matter, render them

inadmissible under Rule 403.”). The trial court did not abuse its

discretion by admitting into evidence the post-incision autopsy

22
photographs at issue here. See Flowers v. State, 307 Ga. 618, 624

(2020) (holding that the trial court did not abuse its discretion in

admitting an autopsy photograph that showed “the underside of [the

victim’s] brain, to illustrate the extent of the bruising,” and that was

relevant evidence of the severity of that immediately lethal injury).

4. Burks next contends that the trial court erred in providing

the jury with an Allen charge instead of granting a mistrial when

the jury informed the court it could not reach a unanimous decision.

But because there was nothing coercive about the Allen charge

provided, we disagree.

The jury began deliberations on February 13, 2018. On

February 14 and again on February 15, jurors sent notes to the court

indicating that one or more jurors were having trouble participating

in deliberations. The court suggested providing a charge pursuant

to Allen v. United States, 164 US 492 (1896), but the State suggested

it may be too soon for an Allen charge. The foreman sent a note that

stated “2 jurors suggests that we have reached an impasse. I do not

agree,” and told the court that he believed the jury needed to keep

23
deliberating. The court instructed them to keep deliberating. Later

on February 15, the foreman told the court that the jury had reached

a verdict on three counts. The State asked the court for the Allen

charge for the others, but the court declined. At 4:10 p.m. on

February 15, the jury sent a note that “reflect[ed] where [it stood] on

the 10 counts,” and showed a tally of how jurors were leaning as to

each count. The court told the parties that there was unanimity as

to Counts 6, 7, and 8. The court instructed the parties to consider

an Allen charge for the following day.

On February 16, the State argued that the jury may be at an

impasse and that the court should give an Allen charge. Burks

objected and stated that a mistrial might be more appropriate. At

9:45 a.m., the jury sent a note stating that it had taken a “final vote,”

and provided to the court the breakdown of its vote on all counts.

The court told the parties that the vote showed that there had been

changes on two of the counts from the previous day’s tally, but the

foreman told the court that the jurors were at an impasse on all

counts other than the three on which they had reached a unanimous

24
verdict the day before. The court asked the foreman if he believed

the jury was at an impasse as to the seven counts for which there

was not already a unanimous verdict, and the foreman responded,

“Sir, I believe we are at an impasse on all of them.”

The court then provided an Allen charge,6 to which Burks

6 The charge largely mirrored the 2016 pattern jury charge, as the court

instructed the jury:

And at this time, I’m going to remind you that your verdict
must be unanimous. You have been deliberating this case for a
considerable length of time and I do deem it proper to give you
further instruction regarding the desirability of agreement if
possible.
This case has been exhaustively and carefully tried by both
sides. It has been submitted to you for decision and a verdict if
possible rather than for disagreement. It is the law that a
unanimous verdict is required. While this verdict must be the
conclusion of each juror and not a mere acquiescence in order to
reach an agreement, it is still necessary for all of the jurors to
examine the issues and the questions submitted with candor and
fairness and with a proper regard for and deference to the opinion
of the other jurors.
Each juror should listen to the arguments of the other jurors
with a disposition to be convinced by them. If you differ in your
views of the evidence, such difference of opinion should cause you
to scrutinize the evidence more closely and to re-examine the
grounds for your own opinion.
Your duty is to decide the issues of fact that have been
submitted to you if you can do so conscientiously. In conferring,
you should lay aside all mere pride of opinion and you should bear
in mind that the jury room is no place to champion either side of a
cause. As jurors, you should not be advocates. The aim to keep in

25
objected. See Ga. Suggested Pattern Jury Instructions, Vol. II:

Criminal Cases, 4th ed. (2007) (Jury (Hung)) (January 2016

Updates). At 4:10 p.m. on February 16, the foreman sent another

note with another breakdown of the votes, indicating a change in

tally on five of the seven still-nonunanimous counts, and the

foreman confirmed to the court that he thought further deliberation

could be fruitful on some, but not all, of the remaining counts.

Following the weekend, the jury resumed its deliberations at

8:45 a.m. on February 19. At 10:16 a.m., the foreman informed the

court that they were “making progress,” and at 11:02 a.m., the

foreman sent another vote tally indicating movement on one count

but nothing else. At 11:56 a.m., the jury sent another note that

indicated there was unanimity as to Counts 6-12, and Burks’s

counsel argued that the trial court was “pressuring” the jury into a

mind is the truth as it appears from the evidence examined in light
of the court’s instructions.
You will again retire to your jury room to resume your
deliberations and examine your differences in a spirit of fairness
and try to arrive at a verdict.

26
vote. Later in the afternoon, the foreman indicated that there had

been no further movement. The court instructed the foreman to fill

out the verdict form for only the counts as to which the jury had a

unanimous verdict and to leave blank any count for which there was

not a unanimous verdict. The jury found Burks guilty of Counts 6-

10, and the court declared a mistrial as to Counts 1-5.

“The decision of whether to give an Allen charge is within the

discretion of the trial court, and a trial court’s instruction is not

coercive simply because the instruction compelled the jury to

continue deliberating after it reported a deadlock.” Hughs v. State,

312 Ga. 606, 613 (2021) (citations and punctuation omitted). “The

central inquiry in reviewing an Allen charge is whether the

instruction is coercive so as to cause a juror to abandon an honest

conviction for reasons other than those based upon the trial or the

arguments of other jurors.” Scott v. State, 290 Ga. 883, 888 (2012)

(citation and quotation marks omitted). This Court considers

various factors to determine whether requiring further deliberations

was coercive, including:

27
the length of trial, the length of deliberations before the
jury indicates that it is deadlocked, the language of the
jury’s notes, the progress of the jury, the language of the
Allen charge and other instructions regarding
deliberations, the length of additional deliberations after
the alleged coercion, whether the jury found the
defendant not guilty of any charges, and the polling of the
jury.

Smith v. State, 302 Ga. 717, 721 (2017).

Here, the court did not abuse its discretion in charging the jury

to continue deliberations because the “Allen charge read by the trial

court was an accurate statement of the law and not coercive.” See

Hughs, 312 Ga. at 614 (approving the pattern Allen charge that is

substantially identical to the Allen charge given in this case). As to

the “language of the jury’s notes” and the “progress of the jury”

factors, after the first time the foreman volunteered the jury’s

numerical breakdown on some of the counts for which they did not

have a verdict, the numerical breakdowns 7 continued to shift on a

7 At one point during deliberations, the trial court suggested that it may

not be appropriate for the parties to know the breakdown of the votes, and
Burks agreed, arguing that “one reason we don’t engage in those discussions is
because we have to make other decisions as far as moving for a mistrial, partial
verdict, dismissing jurors for cause or, you know, anything that comes up. And

28
few of the counts each time the court instructed the jury to continue

its deliberations. See Smith, 302 Ga. at 721. The foreman reported

that he believed the jury could benefit from further deliberations.

See id. (“[T]he jury did not simply announce that it was ‘deadlocked.’

Rather, the jury reported its numerical division and the lack of

continued participation by one juror ... and described its position

with the terms ‘stalemate’ and ‘dilemma.’”).

As to the “the language of the Allen charge and other

instructions regarding deliberations” factors, see Smith, 302 Ga. at

721, the court here gave an instruction that largely mirrors the 2016

pattern jury instruction for a hung jury, and Burks has failed to

identify any language in the charge amounting to impermissible

coercion. See Scott, 290 Ga. at 888. See also Drayton v. State, 297

that information would influence some of those decisions.”
Even though Burks does not raise a claim on appeal about the
impropriety of the jury reporting votes or that it was error for the court to
reveal the numerical breakdowns of the jurors’ votes, we note that, for the very
reason argued during deliberations in his trial, “it would have been much
better for the trial court to tell the jurors to stop revealing the nature of their
numerical division, … and we again encourage trial judges to inform jurors not
to reveal that information.” Smith, 302 Ga. at 722 (citation and quotation
marks omitted).
29
Ga. 743, 747-48 (2015). Burks specifically argues that the court’s

instruction suggested that, if any juror was the only one to hold a

specific view, he or she should consider changing his opinion, and

that the instruction gave the “exhausted jurors” the impression that

if they did not reach a unanimous decision, they could not go home.

We disagree.

To that end, in analyzing an instruction almost identical to the

one at issue in this case, this Court has previously held that the

modified pattern Allen charge would not have impermissibly

suggested that the “jurors were absolutely required to reach

agreement on each charge as opposed to deadlocking on one or more

charges.” See id. at 749. In Drayton, the appellant alleged that the

part of the pattern jury charge instructing that a unanimous verdict

was required misled the jury into thinking there had to be either a

guilty or a not guilty verdict as opposed to the third option of no

verdict resulting in a mistrial. Id. at 748. But we held that that part

of the instruction was a correct statement of the law and that the

other language from the charge indicated there was a possibility of

30
a third option. Id. at 749.

Specifically, language in the instruction such as “the

desirability of agreement, if possible,” “this verdict must be the

conclusion of each juror, and not a mere acquiescence,” and informing

the jury that it was being sent back to the jury room “to try to arrive

at a verdict” all worked together to keep the jurors from being misled

by the part of the instruction that a verdict must be unanimous. Id.

(emphasis added). Each of those phrases from the charge given in

Drayton was included in the instruction the trial court provided in

Burks’s case and, therefore, we cannot say that the instruction here

misled the jurors into thinking that if they did not reach a

unanimous verdict they could not go home. Accordingly, Burks has

not shown that anything about the instruction given in this case was

coercive, and the court did not abuse its discretion in giving the Allen

charge.

5. Burks next contends that the trial court abused its

discretion by denying his motion for a change of venue because the

pretrial publicity created an “inherently prejudicial trial setting.”

31
But because Burks has not shown how the pretrial publicity

rendered his trial setting inherently prejudicial, the court did not

abuse its discretion in denying his request for a change of venue.

In August 2016, Burks filed a motion for a change of venue

pursuant to OCGA § 17-7-150, 8 arguing that the crimes for which he

was charged garnered “an extraordinary amount of pretrial

publicity” in Muscogee County and the Chattahoochee Judicial

Circuit and engendered “community sentiment” and prejudice due

to their “heinous nature.” Over a year and a half later, he renewed

the motion, arguing that the pretrial publicity had severely

prejudiced him, as certain news articles contained inaccurate

information and used sensational language. He listed 24 headlines

of articles about the crimes and argued that the articles labeled

Burks in unflattering terms like “suspect.” Following argument, the

trial court denied Burks’s motion.

8 OCGA § 17-7-150 provides: “The defendant, in any criminal case in

which a trial by jury is provided, may move in writing for a change of venue,
whenever, in the defendant’s or defense counsel’s judgment, an impartial jury
cannot be obtained in the county where the crime is alleged to have been
committed.” OCGA § 17-7-150(a)(1)(A).
32
“The trial court has the discretion to grant a change of venue

and its discretion will not be disturbed absent an abuse of that

discretion.” Powell v. State, 297 Ga. 352, 354 (2015) (citation and

quotation marks omitted). For a request of a change of venue to be

granted, the movant must show either that the trial setting

“inherently prejudicial” or “that the jury selection process showed

actual prejudice to a degree that rendered a fair trial impossible.”

Garcia-Solis v. State, 320 Ga. 754, 760 (2025). To show that a trial

setting is inherently prejudicial, “the record must establish that the

publicity contained information that was unduly extensive, factually

incorrect, inflammatory or reflective of an atmosphere of hostility.”

Id. (citation and quotation marks omitted). And “even in cases of

widespread pretrial publicity, situations where publicity has

rendered a trial setting inherently prejudicial are extremely rare.”

Clements v. State, 317 Ga. 772, 791 (2023) (citation and quotation

marks omitted).

Here, Burks has made no showing that the jury selection

process showed actual prejudice to a degree that rendered a fair trial

33
impossible and argues only that the setting of the trial was

inherently prejudicial. Burks, however, has failed to demonstrate

how pretrial publicity surrounding his case resulted in an inherently

prejudicial trial setting. To support his claim, Burks points to a

single comment from a member of the public posted online in

response to an online news article about the case to support his

claim. 9 Even assuming that an online comment of this kind can be

considered in evaluating pretrial publicity or community sentiment,

Burks has failed to show that this solitary opinion from an online

commenter rendered the publicity itself to be “unduly extensive,

factually incorrect, inflammatory or reflective of an atmosphere of

hostility.” See Garcia-Solis, 320 Ga. at 760. See also Clements, 317

Ga. at 791-92 (concluding that there was no inherent prejudice even

where local newspaper with articles about the crimes had a print

subscription base of 17,500 people and published articles on its

9 The online news article explained that police had identified Burks as

the “15-year-old boy charged” with the deaths, and the online commenter
responded that neither Burks nor the other two people charged were men but,
rather, were “lower than animals!”
34
Facebook account with 30,000 followers because none of the articles

were unduly extensive, factually inaccurate, inflammatory, or

reflective of an atmosphere of hostility). See also Taylor v. State, 303

Ga. 624, 628-30 (2018) (holding that press coverage did not create

presumption of prejudice where one article discussed the victim’s

widow’s dismay with the defendant being retried but the article did

not indicate that the public shared the widow’s views and was not

“otherwise hostile toward the defendant”). Burks has failed to show

that the trial setting here was inherently prejudicial, and

accordingly, the trial court did not abuse its discretion in denying

the motion for a change of venue.

6. Finally, Burks contends that the trial court abused its

discretion by denying his oral motion to impanel a new jury during

jury selection on the ground that the venire of potential jurors was

prejudiced because it initially saw Burks on trial with his co-

defendants but, after Gibson and Tapley decided to plead guilty,

Burks was the only remaining defendant on trial. We disagree.

After the jury selection process began, Burks’s co-defendants

35
indicated their intent to plead guilty and exited the case. Burks

moved for a new jury panel, arguing that the panel would be

prejudiced because it would only see Burks remaining at the

defendants’ table. The court denied the motion because any concerns

could be addressed through the court’s instructions to the jury to

consider only the case against Burks. The court later instructed the

jury to decide the case based solely on the evidence presented in the

courtroom, reminded the jury that Burks was the “only defendant

on trial before [it],” and instructed that the jury was only concerned

with guilt or innocence “of this defendant,” and the jurors affirmed

by oath that they would try the issues formed by the indictment

against Burks and according to the evidence presented.

We review a trial court’s denial of a motion requesting that a

jury panel be excused and another panel be made available for an

abuse of discretion. Horton v. State, 310 Ga. 310, 318 (2020).“[T]he

appropriate inquiry is whether the conduct in question was

inherently prejudicial and deprived [the defendant] of his right to

begin his trial with a jury free from even a suspicion of prejudgment

36
or fixed opinion.” Id. (citation, punctuation, and emphasis omitted).

“Of course, where the facts establish only gossamer possibilities of

prejudice, prejudice is not inherent.” Id. (quotation marks omitted).

Here, the trial court did not abuse its discretion in denying

Burks’s motion to strike the jury panel. We cannot say that the jury’s

awareness that Burks’s co-defendants were involved in the case at

the beginning of jury selection10 but were ultimately not tried with

Burks was “inherently prejudicial.” See Horton, 310 Ga. at 318. Nor

did it deprive Burks of his right “to begin his trial with a jury free

from even a suspicion of prejudgment or fixed opinion.” Id.

Further, in its preliminary instructions to the jurors, the trial

court instructed that the jurors must decide the case based solely on

the evidence presented in the courtroom and must not do any

research during the trial about the matters or the parties involved

in the case. In its jury instructions at the conclusion of the trial, the

10 Albeit in a slightly different context than we have here, the Court of

Appeals has held that it was reversible error for a co-defendant to take a guilty
plea in the presence of the entire jury panel from which the jury was to be
selected. See Hayes v. State, 136 Ga. App. 746, 746 (1975). We express no
opinion as to the correctness of that holding.
37
court reminded the jury that “Mr. Burks is the only defendant on

trial,” and that the jury was only to be “concerned with the guilt or

the innocence of this defendant.” See Horton, 310 Ga. at 317, 319

(concluding that the court did not abuse its discretion when

countering the potential effects of an allegedly prejudicial event by

inquiring whether the jurors could remain impartial and instructing

them to disregard the incident and only decide the case based on the

evidence presented). “We ordinarily presume that jurors follow such

instructions without clear evidence to the contrary, which we do not

have here.” Prickett v. State, 314 Ga. 435, 440 (2022) (citation

omitted).

Burks has provided no evidence to suggest that the change in

composition at the defendants’ table from the beginning of jury

selection to the start of trial prevented Burks from beginning “his

trial with a jury free from even a suspicion of prejudgment or fixed

opinion,” and because “the trial judge was in a better position than

this Court to determine the nature of the [allegedly prejudicial

event] and its likely effect, if any, upon the jury,” we will not disturb

38
that determination absent an abuse of discretion. See Horton, 310

Ga. at 317-18 (citation, punctuation, and quotation marks omitted).

Judgment affirmed. All the Justices concur.

39