CourtListener 10846046

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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: January 21, 2026

S25A1496. WELLS v. THE STATE.

PINSON, Justice.

Tobias Raynard Wells was convicted of felony murder and

other crimes in connection with the shooting death of Nashiem Hub-

bard-Etienne. 1 On appeal, he claims that the evidence was not suf-

ficient to support his convictions; that the State misled the jury

1 The shooting happened in the early morning hours of July 16, 2019. On

October 22, 2019, a Fulton County grand jury indicted Wells and four co-de-
fendants, Cortez Devon Banks, Johnerton Blake Gilstrap, Dontacus Brantley,
and Kamiyah Lashae Street, for malice murder (Count 1), felony murder pred-
icated on attempted armed robbery (Count 2), felony murder predicated on ag-
gravated assault of Hubbard-Etienne (Count 3), felony murder predicated on
aggravated assault of a surviving victim, Roland Pack (Count 4), attempted
armed robbery (Count 8), aggravated assault of Hubbard-Etienne (Count 9),
aggravated assault of Pack (Count 10), and possession of a firearm during the
commission of a felony (Count 11). Banks and Gilstrap were also indicted on
additional counts based on their possession of a firearm as, respectively, a first
offender probationer and a convicted felon (Counts 5–7, 12–14). Street and
Brantley pleaded guilty, but Wells, Banks, and Gilstrap pleaded not guilty and
were tried together before a jury from October 11 to 20, 2023. Wells was found
not guilty of malice murder and guilty of all other counts. He was sentenced to
about a plea deal that one testifying co-defendant received in ex-

change for her testimony; that the State prevented the defense from

calling another co-defendant as a witness by offering him a plea deal

but failing to sentence him; that the trial court instructed the jury

incorrectly about circumstantial evidence; and that the trial court

abused its discretion by failing to sever Wells’s trial from those of

his co-defendants.

These claims fail. The evidence was sufficient for a jury to find

beyond a reasonable doubt that Wells was guilty of felony murder,

at least as a party to the crime, based on his presence at the scene

and his movements and communications with the other perpetrators

before and after the shooting. The State did not mislead anyone

about the plea deal it reached with the testifying co-defendant: the

life in prison for felony murder predicated on the aggravated assault of Hub-
bard-Etienne, 30 years in prison for attempted armed robbery, and 20 years in
prison for the aggravated assault of Pack, all to be served concurrently, and
five years of probation for possession of a firearm during the commission of a
felony, to be served consecutively. The remaining counts merged for sentencing
or were vacated by operation of law. Wells filed a timely motion for new trial,
which he later amended twice through new counsel. After an evidentiary hear-
ing, the trial court denied Wells’s motion for new trial on May 6, 2025. Wells
filed a timely notice of appeal. His appeal was docketed to the August 2025
term of this Court and submitted for a decision on the briefs.
2
deal was slightly modified after Wells’s trial to avoid imposing a po-

tentially illegal sentence, which was not improper. There is no evi-

dence that the State engineered a plea deal with the non-testifying

co-defendant to prevent him from testifying for the defense, and no

authority to support such a claim. The trial court’s oral and written

instructions to the jury, taken as a whole, correctly informed the jury

about circumstantial evidence. And Wells has not given any reason

that his trial had to be severed. We therefore affirm Wells’s convic-

tions.

1. Evidence at Trial
The evidence at trial showed the following.

(a) On the night of July 15 to 16, 2019, Hubbard-Etienne was

shot and killed in the parking garage of an apartment complex in

southwest Atlanta. Hubbard-Etienne had been playing dice, for

money, in an apartment in the complex that evening, and he was

shot as he was leaving after the game had ended. A neighbor called

9-1-1 to report the shooting at 1:39 a.m. At trial, two people who

were also part of the dice game testified about the shooting. One was

3
Roland Pack, who was with Hubbard-Etienne when he was shot.

The other was Kamiyah Street, who participated in, and was later

arrested for, the shooting.

Street described in detail the planning and execution of the

crime. She testified that she went to play dice in the apartment after

hearing about the game from Pack. In the apartment were Pack and

“about four or five other people” she did not know. After two or three

hours, a disagreement arose about the dice, and Pack decided to end

the game. That decision upset Street, because up to that point Pack

had been doing well and Street had been losing money — mostly to

Pack. So Street wanted to keep playing. But the game ended, so

Street left and drove to another apartment complex where she some-

times hung out.

At the second location, Street met up with Wells, Blake Gil-

strap, Cortez Banks, and Dontacus Brantley. Street told the group

that she had been gambling, that there was “quite a bit of money”

there, and that they could get the money “by robbing them.” The four

men agreed to the plan.

4
The group left in Street’s car. On the way back to the site of the

dice game, the group dropped off Wells and Banks so that Wells

could pick up a jacket to wear as a disguise. Then Street, Gilstrap,

and Brantley continued on to the apartment complex, while staying

in close contact with Wells. At 12:36 a.m., Street texted Wells, “We

on the way to the move,” which referred to the robbery. When Street,

Gilstrap, and Brantley arrived in the parking garage, they saw that

Pack’s car was near the entrance to the complex, “as if he was fixing

to leave,” so Street texted Wells, “We tryna hurry up before they

leave.” Then, when Pack did leave, Street, Gilstrap, and Brantley

followed him in Street’s car. All the while, Street continued sending

updates about their location to Wells, who had caught an Uber with

Banks and was trying to meet them. Phone records showed that

from 12:29 a.m. to 2:24 a.m. — from about an hour before the 9-1-1

call until about an hour afterwards — Street’s phone had 27 incom-

ing, outgoing, or missed calls with Wells’s phone.

The group finally met up at around 1:30 a.m. at a convenience

store near the site of the planned robbery. Wells and Banks got into

5
Street’s car. At this point, Gilstrap and Banks had handguns, and

Brantley had a fake rifle that “looked real.” Street was unsure if

Wells was armed. The five of them continued following Pack, who

returned to the apartment complex.

Street followed Pack as he drove into the parking garage and

parked. When Pack and his passenger — Hubbard-Etienne — got

out of their car, Wells, Gilstrap, Banks, and Brantley got out of

Street’s car, with Gilstrap and Banks carrying their handguns.

While Street was testifying, she was shown still photos taken from

video surveillance footage of the shooting, and she identified Wells,

Gilstrap, Banks, and Brantley in the photos.

When the four men got out of her car, Street started to drive

away, having agreed to “circle around” and then pick the men up

“once they were done.” But she had gone no more than ten feet when

she heard gunshots. She stopped the car, the four men got in, and

the group drove away.

The next day, Street learned from Wells that someone had been

killed during their attempted robbery. She also learned from Wells

6
that surveillance footage of the shooting had been shown on the

news, and that her car was visible in the footage. On Wells’s advice,

Street had her car cleaned to remove any fingerprints. She also

called 9-1-1 to report (falsely) that her car had been stolen. Phone

records showed that at 7:50 a.m. that morning, Street’s phone con-

nected with Wells’s phone for a video call lasting about three

minutes, and then, seconds after that call ended, Street’s phone

called 9-1-1.

When police tracked Street down and interviewed her, she ini-

tially told them that her car had been stolen, and then that she had

lost her keys, but she eventually confessed to her part in the events

of that night. In her confession, she identified Wells, Gilstrap,

Banks, and Brantley as the perpetrators along with herself, alt-

hough at trial she described herself as the “mastermind” of the

crime.

Pack also testified. He said that the dice game had ended with-

out incident, although Street had been “pretty mad” because she had

lost a few thousand dollars to him. Some time after the game ended,

7
Pack and Hubbard-Etienne left to drive to the corner store, which

was near the apartment complex. They stayed there for a few

minutes, bought a few items, and then returned to the complex. As

they drove into the parking garage, Pack noticed a car he had never

seen at the complex before, with people inside who appeared to be

looking at him and Hubbard-Etienne. Pack became suspicious. He

and Hubbard-Etienne got out of the car and started to walk toward

the door out of the garage, heading back to the apartment where

they had been playing dice. The other car then moved from its park-

ing spot and parked next to the door out of the garage. Several

masked figures got out of the car and started walking toward Pack

and Hubbard-Etienne with guns drawn.

Pack testified that he turned and ran. Behind him, the masked

figures opened fire. Pack was not hit. When Pack heard the other

car drive away, he came out of hiding and went back to find that

Hubbard-Etienne had been shot. Pack managed to get Hubbard-

Etienne into the back seat of his car and drove out of the parking

garage “as fast as possible.” As he left the garage, he encountered

8
the Atlanta police, who had come in response to the neighbor’s 9-1-

1 call. By that time, Hubbard-Etienne was dead in Pack’s back seat

from a shot to his back.

(b) In the course of the police investigation, officers looked into

the movements of Pack’s car in the hours before the shooting. A de-

tective searched for the car’s license plate number in a City of At-

lanta database of license-plate-camera recordings, which is availa-

ble only to law enforcement. The database showed that the car was

recorded at an intersection near the crime scene at 1:26:03 a.m. on

the night of the shooting. The detective then searched for other li-

cense plates captured by the same camera around the same time, to

see if anyone was following Pack’s car. That search revealed that

another car passed through the intersection 11 seconds after Pack

did, traveling in the same direction. A further search for that second

license plate number revealed that that same car was driving

around near the scene of the shooting several hours before it hap-

pened, and then again less than an hour before. The detective deter-

mined that the car was registered to Street.

9
Investigators got phone records for Street’s cell phone, as well

as cell-site location information (CSLI) from her phone and the

phones of Wells, Gilstrap, and Banks. The cell phone data, combined

with license-plate-reader images of Street’s car and the video sur-

veillance of the shooting, painted a picture of the group’s movements

and communications on the night of the shooting. At 11:00 p.m., Gil-

strap’s phone made an outgoing call from the vicinity of Wells’s ad-

dress on the west side of Atlanta. At 11:53 p.m., Street’s phone made

two outgoing calls from the area where the dice game was taking

place. A minute later, Street’s phone Facetimed Gilstrap’s phone. At

12:19 a.m., a license plate reader captured Street’s car heading to-

ward Wells’s home. At 12:22 a.m. and 12:27 a.m., Wells’s phone and

Banks’s phone, respectively, made outgoing calls from the area of

Wells’s home. At 12:29 a.m., Street’s phone made an outgoing call,

this time from the area of Wells’s home. At 12:40 a.m., Street’s car

was recorded heading back toward the scene of the shooting. Eight

minutes later, Gilstrap’s phone made a call near the crime scene lo-

cation. At 12:51 a.m. and 1:01 a.m., Wells’s phone and Banks’s

10
phone, respectively, made calls near Wells’s home. Twenty-five

minutes later, Street’s car was recorded passing through an inter-

section 11 seconds behind Pack’s car, as noted above. At 1:34 a.m.,

the two cars were recorded entering the apartment complex where

the shooting took place. At 1:39 a.m. — just when the neighbor was

calling 9-1-1 to report the shooting — Street’s car was recorded leav-

ing the complex. At that same moment, Wells’s phone and Banks’s

phone both made calls from near the scene of the shooting. And

within the next hour, Wells’s, Gilstrap’s, and Banks’s phones all

made calls near Wells’s home.

Later on in their investigation, Wells was interviewed by po-

lice. The officer who conducted the interview testified at trial. The

officer said that Wells waived his Miranda 2 rights and then admit-

ted to being present at the shooting. At first, Wells claimed that he

never got out of Street’s car. But when the officer showed him the

surveillance footage of the robbery and the still photos taken from

2 Miranda v. Arizona, 384 US 436 (1966).

11
the video, Wells identified himself in the video and photos and ad-

mitted that he got out of the car. He still maintained, however, that

he did not have a gun and was not a part of the robbery attempt.

Etienne had fired shots during the incident. When the shooting hap-

pened, Hubbard-Etienne was carrying a gun that belonged to his

mother. At the scene, investigators collected a large number of spent

.40-caliber and 9-millimeter cartridge casings, projectiles, and frag-

ments, and some of the 9-millimeter cartridge casings were later

matched to Hubbard-Etienne’s mother’s gun. Hubbard-Etienne’s

hands tested positive for gunshot primer residue, a substance that

is ejected when a gun is fired.

2. Sufficiency of the Evidence
Wells first claims that the evidence was not sufficient to sus-

tain his convictions. We evaluate a due process challenge to the suf-

ficiency of the evidence by “viewing the evidence presented at trial

in the light most favorable to the verdicts, and asking whether any

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

12
reasonable doubt.” Henderson v. State, 317 Ga. 66, 72 (2023). “[C]on-

flicts or inconsistencies in the evidence, credibility of witnesses, and

reasonable inferences to be derived from the facts” are for the jury

to resolve. Perkins v. State, 313 Ga. 885, 891 (2022) (quotation marks

omitted).

Under that standard, the evidence recounted above was more

than sufficient to support Wells’s conviction for felony murder.

Street testified in detail about the crime — including Wells’s role in

its planning and execution — and much of the other trial evidence

was consistent with her testimony. Cell phone evidence confirmed

that the group was in close communication on the night of the shoot-

ing. License plate cameras and CSLI showed the defendants’ move-

ments that night, including their presence in the parking garage

when the shooting happened. Pack’s narrative of the shooting from

the victims’ perspective was largely consistent with what Street de-

scribed. Surveillance footage from the shooting showed four men

jumping out of Street’s car, just as Street said. And Wells even iden-

tified himself to police as one of those men. That evidence authorized

13
a jury to conclude that Wells was one of the perpetrators of the

shooting attack on Hubbard-Etienne and Pack. See Williams v.

State, 315 Ga. 797, 804–05 (2023) (testimony of co-defendant, cor-

roborated by other evidence including testimony from other wit-

nesses and forensic blood evidence, was sufficient to sustain convic-

tion).

The conclusion that the evidence was constitutionally suffi-

cient is not defeated by any of Wells’s several specific arguments

about the evidence in this case. Wells contends, for instance, that

the State did not establish who fired the shot that killed Hubbard-

Etienne and did not show that Wells himself ever had a gun. But a

defendant is guilty of a charged offense if he is a “party thereto,”

which can mean, among other things, that he “[i]ntentionally aid[ed]

or abet[ted] in the commission of the crime.” OCGA § 16-2-20(a) &

(b)(3). And a jury is authorized to find that a defendant aided or

abetted in a crime if it finds that the defendant shared a “common

criminal intent with the direct perpetrators,” which the jury can in-

fer from the defendant’s “presence, companionship, and conduct

14
with other perpetrators before, during, and after the crimes.” Fitts

v. State, 312 Ga. 134, 142 (2021) (quotation marks omitted). The jury

here was authorized to make that finding: Street testified about how

the group collectively decided to rob the dice game, and that, in prep-

aration for that act, Wells stopped to get a jacket to use as a disguise.

Cell phone evidence showed that Wells and Street were in close con-

tact leading up to the shooting. And after the shooting, evidence

showed that Street communicated with Wells about how to get rid

of evidence of the crime. That evidence was sufficient to find that

Wells shared a common criminal intent with the perpetrators, both

as to the attempted robbery and the shooting. See Willis v. State,

315 Ga. 19, 25 (2022) (jury could conclude that defendant was “part

of the group that committed the crimes” when cell phone evidence

showed that he was at the crime scene, that he moved around the

city with the perpetrators after the crimes, and that he was in com-

munication with the other perpetrators throughout the day). Be-

cause the jury could find that Wells shared a criminal intent with

the other perpetrators as to the shooting, the jury could find that he

15
was guilty of aggravated assault, at least as a party to the crime.

See Robinson v. State, __ Ga. __, 921 SE2d 319, 325 (2025) (shooting

at a person is aggravated assault). And the charge of felony murder

did not require the State to prove that Wells intentionally killed

Hubbard-Etienne, only that he intentionally committed a dangerous

felony that foreseeably caused Hubbard-Etienne’s death, either di-

rectly or as a party to the crime, see Eubanks v. State, 317 Ga. 563,

578 (2023), and aggravated assault is such a dangerous felony, see

Sanders v. State, 313 Ga. 191, 198–99 (2022).

Wells also argues that the State did not prove that the co-de-

fendants shot at Hubbard-Etienne before he fired at them — in es-

sence, a self-defense argument. But the evidence recounted above

authorized the jury to conclude that Wells and his co-defendants

went back to the apartment complex to rob their victims and were

the initial aggressors in the encounter. That authorized finding

would in turn authorize the jury to reject a defense of justification.

See OCGA § 16-3-21(b)(2) & (b)(3); Bennett v. State, 320 Ga. 580, 585

(2024) (jury could reject claim of self-defense when evidence showed

16
that defendant was initial aggressor); State v. Brown, 314 Ga. 588,

590–91 (2022) (a defendant is not justified in using deadly force if he

uses it while attempting to commit, committing, or fleeing from a

felony).

Finally, Wells argues that there was no evidence that any prop-

erty was taken from the victims. But Wells was convicted of at-

tempted armed robbery, which required the State to prove only that

Wells intended to commit armed robbery and that he “perform[ed]

any act which constitute[d] a substantial step toward the commis-

sion of the crime.” OCGA § 16-4-1. As discussed above, the evidence

was sufficient for the jury to conclude that Wells shared a common

criminal intent to rob Hubbard-Etienne and Pack and that he took

substantial steps to commit that act.

In sum, the evidence was more than sufficient to sustain

Wells’s convictions at least as a party to the crime. This claim of

error therefore fails.

17
3. Due Process Claim about Street’s Plea Deal
Wells next claims that the State violated his right to due pro-

cess under Brady v. Maryland, 373 US 83 (1963), and Giglio v.

United States, 405 US 150 (1972), by concealing from the jury and

the defense the favorable terms of Street’s plea deal.

(a) Before trial, in 2021, Street agreed to a negotiated plea deal.

Under the deal, Street would plead guilty to all charges and provide

truthful testimony against her co-defendants. In exchange, the State

agreed to recommend a sentence of 25 years in prison, consisting of

concurrent 20-year sentences for malice murder, attempted armed

robbery, and the aggravated assault of Pack, and a consecutive five-

year sentence for possession of a firearm during the commission of a

felony. The 20-year sentence for malice murder represented a down-

ward reduction from the statutory minimum life sentence for that

offense. See OCGA § 16-5-1(e)(1) (“A person convicted of the offense

of murder shall be punished by death, by imprisonment for life with-

out parole, or by imprisonment for life.”); OCGA § 17-10-6.1(e) (“In

the court’s discretion, the judge may depart from the mandatory

18
minimum sentence specified in this Code section for a person who is

convicted of a serious violent felony when the prosecuting attorney

and the defendant have agreed to a sentence that is below such man-

datory minimum.”).

At trial, Street testified for the State, as described at length

above. At the end of her testimony, the State asked Street about her

plea deal. Street confirmed that she had pleaded guilty to “[a]ll of

the charges,” including murder. She further testified that, as a re-

sult of her deal, she would serve 25 years in prison.

After trial, in October 2023, Street, having fulfilled her part of

the plea deal, returned to the court for sentencing. However, in the

meantime, this Court had issued a decision, Polanco v. State, 313

Ga. 598 (2022), which included a concurring opinion arguing that a

trial court is not authorized by statute to impose a sentence of less

than life in prison for murder. See id. at 600–01 (Ellington, J., con-

curring). 3 The prosecutor noted at Street’s sentencing hearing that,

as a result of the Polanco concurrence (although it is not binding

3 We express no opinion here on whether this theory is correct.

19
precedent), “many prosecutors and defense bar and judges stopped

that practice of sentencing a defendant to less than life” for murder.

That change in practice implicated Street’s plea deal, because,

again, the deal provided that she would be sentenced to 20 years for

malice murder. At Street’s sentencing hearing, the parties and the

trial court acknowledged that the original plea deal might now be

illegal, and they discussed how the court could impose a legal sen-

tence under the theory articulated in the Polanco concurrence that

would “achieve[ ] essentially the same thing that both sides bar-

gained for.”

Ultimately, all involved agreed that Street would plead guilty

to voluntary manslaughter rather than murder, and the rest of her

original plea deal would not be affected. Street would be sentenced

to the same 25-year total sentence as under her original deal. The

court conducted a plea colloquy with Street about the revised deal,

and then it imposed the agreed-on sentence.

(b) Due process requires the State to disclose to the defense ev-

idence that is favorable to the accused. See Brady, 373 US at 87.

20
That may include evidence (like a favorable plea deal) that the de-

fense might use to impeach a State witness. See Giglio, 405 US at

154–55; Sauder v. State, 318 Ga. 791, 807 (2024). And we have rec-

ognized that a defendant generally may tell the jury about a wit-

ness’s plea deal, which bears on the witness’s credibility. See, e.g.,

Quintanar v. State, 322 Ga. 61, 70–71 (2025).

Those rules were not broken here. When Street testified about

her plea deal at trial, she accurately described the deal as it existed

at the time. It was not until later that the deal was altered. And

Wells has presented no evidence that the State withheld knowledge

that the change was coming, or that there was any other deal that

was not disclosed before or during trial. To the contrary, the record

shows that the parties and the trial court altered the deal at Street’s

sentencing hearing — after the trial — to avoid imposing a sentence

that might be void under the reasoning of the Polanco concurrence.

Without showing that the State withheld useful impeachment evi-

dence, Wells cannot succeed on a due process claim under Brady or

Giglio. See Sauder, 318 Ga. at 807.

21
And Wells’s claim fails for another reason. To prevail on a

Brady claim, a defendant must show a reasonable probability that

the outcome of his trial would have been different if the favorable

evidence had been disclosed to the defense. See id. But Wells has not

shown that he was reasonably likely to have been found not guilty if

the jury had known about Street’s revised plea deal. The revised

deal was not materially different from the one that Street described

at trial. Wells emphasizes that she told the jury she had pleaded

guilty to murder but actually pleaded guilty to voluntary man-

slaughter. But Street was actually sentenced to 25 years in prison,

just as she told the jury she would be. The marginal impeachment

value of knowing that Street would technically have a different of-

fense of conviction, when her prison sentence was not changed, was

not likely to have made a difference to the jury. Cf. Moore v. State,

315 Ga. 263, 270 (2022) (counsel could reasonably have determined

that a State witness “did not materially underrepresent the benefit

he received by testifying” when the witness truthfully told the jury

he would be sentenced under a plea deal to 35 years, to serve 30, but

22
misstated his maximum sentencing exposure as life plus 75 years

rather than life without parole); Benton v. Hines, 306 Ga. 722, 725

(2019) (defendant was not prejudiced by counsel’s failure to ask a

witness about the maximum sentence the witness faced, because the

jury already knew the witness “received a significant benefit in ex-

change for pleading guilty and testifying for the State”).

Because Wells cannot show that the State misled him or the

jury about Street’s plea deal or withheld any relevant information,

this claim fails.

4. Due Process Claim about Brantley’s Plea Deal
Wells also raises a due process claim under Brady about the

State’s plea deal with the other co-defendant who pleaded guilty,

Brantley. Wells contends, in essence, that the State engineered the

deal to keep Brantley from giving testimony that would help the de-

fense.

(a) In 2021, Brantley agreed to a plea deal similar to Street’s.

Like Street, Brantley pleaded guilty to all charges, including mur-

der, and the State recommended a sentence of 25 years in prison,

23
consisting of 20 years for murder, a concurrent 20 years for the ag-

gravated assault of Pack, and a consecutive five years for possession

of a firearm during the commission of a felony. In exchange, Brant-

ley agreed to testify truthfully and consistently with Street’s testi-

mony and the other trial evidence. Because Brantley’s reduced sen-

tence was “dependent on what testimony he provides, if any,” in the

trial of his co-defendants, Brantley was not sentenced before that

trial.

In the end, the State decided not to call Brantley as a witness.

But the defense noticed an intent to call him. When the defense did

so, however, Brantley’s counsel explained to the court that Brantley

now wanted to revoke his plea of guilty, and that if he were called to

testify, he would exercise his right to remain silent under the Fifth

Amendment to the United States Constitution — a right that was

still available to him because he had not yet been sentenced. See

Mitchell v. United States, 526 US 314, 326 (1999). The State then

added that if Brantley testified for the defense and “[went] off the

rails” — that is, if he testified inconsistently with Street’s testimony

24
or the trial evidence — then he would lose the benefit of his plea deal

and would be exposed to a life sentence. The defense acknowledged

that it could not offer Brantley the same kind of deal or protection

that the State could.

The court observed that the situation was “unusual.” But after

confirming with Brantley that he would indeed plead the Fifth if

called, the court decided not to allow that to happen “in front of the

jury,” and Brantley did not testify. After the trial, Brantley was sen-

tenced under a modified plea deal that, like Street’s modified deal,

allowed him to plead guilty to voluntary manslaughter rather than

murder so that he could receive the sentence he bargained for with-

out running afoul of the reasoning of the Polanco concurrence.

At the motion-for-new-trial hearing, the prosecutor explained

that Brantley’s testimony was “not necessary,” because Street’s tes-

timony was comprehensive and well-corroborated, and that Brant-

ley was a less credible witness because he had maintained his inno-

cence until he was offered a plea deal. The prosecutor therefore

made a “strategic decision that the risks of putting him on the stand

25
outweighed any benefit.” The prosecutor testified that the State was

not trying to coerce Brantley not to testify for the defense. Brantley

himself did not testify at the motion-for-new-trial hearing.

(b) Wells claims that there were two different “due process vi-

olations” relating to Brantley’s plea deal. First, he claims, as he did

with Street, that the State improperly failed to inform the jury and

the defense about the “actual” terms of the plea deal, because the

terms of the deal were changed after Wells’s trial to benefit Brant-

ley. As an initial matter, Wells has cited no authority to support his

contention that the State must disclose to the defendant and the jury

the terms of a plea deal that the State has reached with a non-testi-

fying co-defendant — and we are aware of none. Wells relies instead

on Giglio and Napue v. Illinois, 360 US 264 (1959), but both of those

decisions address the defendant’s due process rights with respect to

State witnesses. See Giglio, 405 US at 154–55 (jury is entitled to

know of “any understanding or agreement as to a future prosecu-

tion” between the State and a witness, because any such agreement

or understanding would be “relevant to his credibility”); Napue, 360

26
US at 269–70 (State may not knowingly use false testimony to ob-

tain a conviction, even if the false testimony “goes only to the credi-

bility of the witness”). And even if the State was obligated to disclose

the terms of Brantley’s plea deal, Wells’s claim still fails, for the

same reasons that his claim about Street’s plea deal fails. That is,

Wells has not shown that the State withheld information about

Brantley’s deal during Wells’s trial, and he has not established a

reasonable probability that the result of his trial would have been

different if the jury had been told about Brantley’s deal. See Sauder,

318 Ga. at 807.

Wells also suggests that the State deliberately “set up” the plea

deal, and then withheld sentencing Brantley until after Wells’s trial,

to prevent Brantley from testifying for the defense. To the extent

that this argument can be understood as a claim of prosecutorial

misconduct, Wells must show both “actual misconduct” and “demon-

strable prejudice to his right to a fair trial.” Pierce v. State, 319 Ga.

846, 864 (2024) (quotation marks omitted). And Wells has shown

neither. First, he has not provided any evidence of a deliberate “set

27
up.” He gives no support at all for his claim that the State never

intended to call Brantley and that it agreed to a plea deal purely to

maintain leverage over him and prevent him from testifying for the

defense. And Wells also has not shown “demonstrable prejudice”

from Brantley’s failure to testify. Brantley did not testify at the mo-

tion-for-new-trial hearing about what he might have said at trial,

and Wells does not even suggest in his briefing what Brantley’s trial

testimony would have been. Wells therefore has not shown that

Brantley’s testimony would have been helpful to him. In short, Wells

has not shown evidence of either “actual misconduct” or “demonstra-

ble prejudice,” so the claim fails. See id.

5. Jury Instruction about Circumstantial Evidence
Wells next contends that the trial court instructed the jury in-

correctly about circumstantial evidence. In Wells’s view, the court’s

instruction allowed the jury to find Wells guilty even if the evidence

was entirely circumstantial and did not exclude every reasonable hy-

pothesis other than Wells’s guilt. See OCGA § 24-14-6.

(a) During the jury charge, the trial court instructed the jury

28
about evidence. The court told the jury, among other things, that

“[y]ou would be authorized to convict only if the evidence, whether

direct, or circumstantial, or both excludes all reasonable theories of

innocence, and proves the guilt of the accused beyond a reasonable

doubt.” Shortly after that, the court said: “To authorize a conviction

on circumstantial evidence, the proved facts must not only be con-

sistent with the theory of guilt, but must also exclude other reason-

able theories other than the guilt of the accused.” After the jury re-

tired, the court asked counsel if there were any objections to the in-

structions. Wells said that the second of these instructions had omit-

ted the crucial word “every,” as in, the evidence “must exclude every

other reasonable theory other than the guilt of the accused.” The

court asked whether Wells wanted the court to re-instruct the jury.

The court noted that the jury would get a written copy of the instruc-

tions that included the word “every,” and that, “taken as a whole,

it’s absolutely clear what the actual law is.” Wells declined to have

the jury re-instructed. He told the court: “If they are going to get a

written copy, that will be fine. Wanted to note my objection.”

29
(b) As an initial matter, although Wells declined the trial

court’s offer to re-instruct the jury, we assume without deciding that

this claim of error is preserved for our review. Cf. Woodard v. State,

296 Ga. 803, 810 (2015) (defendant waived appellate review of trial

court’s pattern jury instruction about self-defense when the defend-

ant requested the pattern instruction, participated in a discussion

of the part of the instruction challenged on appeal, and then, “de-

spite their awareness and discussion of [the issue on appeal], did not

withdraw the request that the court give the full self-defense pattern

instruction”).

When a defendant has objected to a jury instruction, we review

the instruction de novo. See Campbell v. State, 320 Ga. 333, 347

(2024). In that review, we consider the court’s oral and written in-

structions as a whole to determine whether there was error. See

Taylor v. State, 316 Ga. 17, 20 (2023); Murray v. State, 295 Ga. 289,

294–95 (2014) (considering written jury instructions together with

oral instructions in determining that instructions as a whole cor-

rectly informed the jury about the law).

30
Here, the trial court’s instructions, taken as a whole, correctly

informed the jury about circumstantial evidence. Under Georgia

statutory law, a conviction that rests on circumstantial evidence

alone cannot stand unless the evidence “exclude[s] every other rea-

sonable hypothesis save that of the guilt of the accused.” OCGA § 24-

14-6. That is just what the trial court’s oral and written instructions

told the jury. Even if the court omitted the word “every” in the part

of the instructions that Wells challenges, the court had told the jury

before that it could not find Wells guilty unless the evidence “ex-

cludes all reasonable theories of innocence.” And the court’s written

instructions corrected the misstatement even in the instruction that

Wells challenges. Taken together, then, the instructions correctly

told the jury that it could not find Wells guilty unless the evidence

excluded all other reasonable theories. Because the jury was

properly instructed about the law, this claim of error fails. See Wil-

son v. State, 315 Ga. 728, 735–36 (2023) (no error in failing to give

requested instruction about proximate cause in felony murder trial

31
because the court’s instructions, taken together, “adequately in-

formed the jury about the principles of proximate cause that applied

to this case”); Atkins v. State, 310 Ga. 246, 252–53 (2020) (no error

in presenting jury with arguably misleading verdict form when the

court properly instructed the jury on the charged offenses, the

State’s burden of proof, and the presumption of innocence).

6. Failure to Sever Trials
Finally, Wells contends that the trial court should have severed

his trial from those of his co-defendants, Banks and Gilstrap, be-

cause, in Wells’s view, Banks’s and Gilstrap’s attorneys had a con-

flict of interest. We review a trial court’s decision on a motion to

sever for abuse of discretion. See Campbell, 320 Ga. at 339.

(a) Wells had two trials in this case. Before the first one, Wells

moved to sever his trial from those of his co-defendants. At a pre-

trial hearing, the State indicated its intent to try Wells and Street

separately from the other co-defendants, and so the trial court

granted the motion to sever, as the State had consented. Wells was

32
then apparently tried separately in November 2021. The full tran-

script and outcome of that proceeding are not in the record here, but

one way or another, Wells got a second trial. At that second trial —

the one that resulted in his convictions here — he was tried jointly

with Gilstrap and Banks. Wells did not move to sever the second

trial.

(b) As with Wells’s previous claim of error, we assume without

deciding that his claim about severance is preserved for appellate

review, even though he never moved to sever this trial in the trial

court.

When multiple defendants are jointly indicted for a felony

where the State does not seek the death penalty, the defendants

“may be tried jointly or separately at the discretion of the trial

court.” OCGA § 17-8-4(a). The factors to be considered when ruling

on a motion to sever are (1) the likelihood of confusion of the evi-

dence and law, (2) the possibility that evidence against one defend-

ant may be considered against another defendant, and (3) the pres-

ence or absence or antagonistic defenses. See Terrell v. State, 313

33
Ga. 120, 129 (2022).

Wells has not shown that those (or any other) factors required

his trial to be severed. The basis for severance here, in Wells’s view,

was that the lawyers of his two co-defendants had a conflict of inter-

est between them, in that they were law partners who “had con-

ferred together to develop their defense strategy” and “did work on

other criminal cases together.” Wells contends, without much expla-

nation, that that relationship violated certain of the Georgia Rules

of Professional Conduct. But even if Wells could show that his co-

defendants’ counsels’ professional relationship amounted to an “ac-

tual conflict of interest” that “significantly and adversely affected”

their performance, see Hall v. Jackson, 310 Ga. 714, 720 (2021) (quo-

tation marks omitted) — which he has not done — he has provided

no support at all for his claim that that conflict somehow implicated

his right to effective, conflict-free counsel. And we are aware of none.

Wells also has not shown that any conflict between his co-defend-

ants’ lawyers gave rise to confusion of the evidence and law, the pos-

sibility that evidence against one defendant would be considered

34
against another, or antagonistic defenses. See Terrell, 313 Ga. at

129. In sum, he has not shown that his trial was required to be sev-

ered, and so this claim fails.

Judgment affirmed. All the Justices concur.