DARBY v. THE STATE

In the
Supreme Court of Georgia
No. S26A0892
Tony Darby
v.
The State
On Appeal from the Superior Court of Richmond County
No. 2019RCCR01102
Decided: October 14, 2026
LAGRUA, Justice.
Appellant Tony Darby challenges his 2023 convictions for
felony murder and possession of a firearm during the commission
of a crime in connection with the shooting death of Sanquan
Sims. 1 Darby contends that the trial court erred by not giving his
requested charge on voluntary manslaughter and that his trial
counsel was constitutionally deficient for failing to object to
1 The crimes occurred on May 23, 2019. On August 6, 2019, a Richmond
County grand jury indicted Darby and Patrick Noble for malice murder, felony
murder predicated on aggravated assault, and possession of a firearm during
the commission of a crime. At a joint trial from January 30 to February 2, 2023,
the jury found Darby guilty of felony murder and the firearm count and
acquitted him of malice murder; Noble was acquitted of all charges. The trial
court sentenced Darby to serve life in prison without the possibility of parole
for felony murder and a consecutive term of five years in prison for the firearm
count. Darby filed a timely motion for new trial, which he amended with new
counsel on June 10, 2025. After an evidentiary hearing on June 25, 2025, the
trial court entered an order denying the motion on September 10, 2025. Darby
filed a timely notice of appeal, and the case was docketed in this Court to the
April 2026 term and submitted for a decision on the briefs.
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.

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testimony 	about 	his 	failure 	to 	come 	forward 	during 	the
investigation, 	object 	to 	the 	admission 	of 	a 	photograph 	that
allegedly showed Darby’s connection to a gang, and object to parts
of the prosecutor’s closing arguments. For the reasons explained
below, his claims fail, and we affirm.
The evidence at trial showed that Sims was fatally shot on
May 23, 2019, at the Magnolia Park apartment complex in
Richmond County. A few days before the shooting, Darby’s co-
defendant 	Patrick 	Noble 	accused 	Sims 	of 	selling 	him 	fake
Percocet pills and demanded that Sims repay him $300; Sims
refused to return the money. Noble and Sims exchanged Facebook
messages for several days. These messages contained references
to two gangs that Noble and Sims were associated with, the
Gangster 	Disciples 	and 	the 	Crips, 	respectively. 	Noble 	also
exchanged Facebook messages with Sims’s brother and another
member of the Crips gang who was close friends with Sims, saying
Sims had sold “fake” drugs 	and was making “[the Crips] look
bad.”
Approximately 	two 	hours 	before 	the 	shooting, 	Sims
messaged Noble “WYA?,” meaning “where you at,” and Noble
responded at 5:01 p.m., stating that he was at the Magnolia Park
apartments. The shooting happened a few minutes later.
Tanika Martin, a resident of Magnolia Park who knew
Darby, Noble, and Sims, witnessed the shooting, which happened
about five feet from her apartment door. Martin spoke to law
enforcement officers later in the evening and identified Darby and
Noble 	“as 	being 	involved 	in 	the 	shooting.” 	At 	trial, 	Martin
identified Darby as the shooter and said that Sims did not have
a gun when Darby “shot him to the ground.” She further testified
that, after shooting Sims, Darby ran behind one of the apartment
buildings. According 	to Martin, after Darby ran behind the

3
apartment building, Noble “ran up” and fired shots at Sims as he
lay on the ground. Noble then ran behind the apartment building
and got into a burgundy car and fled the scene. Sims died as a
result of multiple gunshot wounds.
Neither Darby nor Noble testified at trial, but Noble called
Brandon Curry, who provided a different account of the shooting
than Martin provided. According to Curry, he was sitting in a
parked car with Noble when the shooting occurred. According to
Curry, Sims approached the passenger side of the car where
Noble was sitting. Sims was wearing a bandana over his face and
pointed a gun at Noble and said, “B**ch-ass n**ga.” Noble replied,
“You gonna shoot me, bro? You gonna shoot me.” Curry then
heard gunshots, jumped out of the car, and ran behind the
apartment building. He did not see who was shooting. According
to Curry, Noble did not have a gun.
The State presented evidence from Darby’s cell phone
records showing that, on May 23 around 2:25 p.m., Darby’s phone
texted with someone, who was not identified, and asked that
person to meet at the Magnolia Park apartments. Location data
from Darby’s cell phone records showed his phone arriving at the
Magnolia Park apartments at approximately 2:30 p.m. and not
leaving the apartment complex until 5:25 p.m.
Law enforcement officers recovered nine 9mm cartridge
cases at the scene of the shooting, and the medical examiner
removed four 9mm bullets and bullet fragments from Sims. The
9mm cartridge cases were fired from the same gun and were
consistent with being fired from a Glock firearm. The 9mm bullets
and fragments recovered by the medical examiner were also
consistent with having been fired by a Glock. At the scene, officers
also recovered two .38 caliber bullets that had been fired by the
same gun but could not have been fired from the gun that

4
discharged the 9mm cartridge cases. No weapons matching the
9mm cartridge cases and bullets or the .38 caliber bullets were
ever found.
Law enforcement officers were not able to immediately
apprehend Darby and Noble, but Noble turned himself in on July
8, 	2019. 	Darby 	was 	arrested 	by 	United 	States 	Marshals
approximately two months later, on September 20. At trial, Darby
did not testify, but his trial counsel argued that Darby was
justified in shooting Sims to defend Noble and that Darby fled
because he feared retaliation from members of Sims’s gang. As
noted above in footnote 1, Noble was acquitted of all charges.
1. Darby contends that the trial court erred in failing to
give his requested jury instruction on voluntary manslaughter. 2
See OCGA § 16-5-2(a). 3 He asserts that the evidence supported
giving a voluntary manslaughter charge, including Martin’s and
Curry’s testimony that Darby was “only feet away” from the “gun-
pointing confrontation directed at Mr. Noble … accompanied by
slurs,” and that the jury could find such evidence “provoked an
impulsive, heat-of-passion response before there was time for cool
reflection.” We disagree.
In 	a 	murder 	prosecution, 	a 	trial 	court 	must 	grant 	a
defendant’s request for a charge on voluntary manslaughter “if
there is any evidence, however slight, … that the killing occurred
2 Darby objected to the trial court’s refusal to give the instruction and
renewed his objection at the conclusion of the final charge.
3 OCGA § 16-5-2(a) states, in pertinent part, that
[a] person commits the offense of voluntary manslaughter
when he causes the death of another human being under
circumstances which would otherwise be murder and if he acts
solely as the result of a sudden, violent, and irresistible passion
resulting from serious provocation sufficient to excite such
passion in a reasonable person.

5
solely as the result of a sudden, violent, and irresistible passion
resulting 	from 	serious 	provocation 	sufficient 	to 	excite 	such
passion in a reasonable person.” Hayes v. State, 320 Ga. 505, 520
(2024) (cleaned up). Determining whether there is slight evidence
to support the charge is a question of law. See id.
Darby has not cited any cases, and we have found none,
where 	evidence 	of 	a 	violent 	confrontation 	not 	involving 	the
defendant 	authorized 	a 	jury 	instruction 	on 	voluntary
manslaughter. In any case, we have held that “neither mere
words, nor fear for one’s safety, nor fighting are the types of
provocation that demand a voluntary manslaughter charge.”
Jivens v. State, 317 Ga. 859, 862 (2023). Here, the evidence that
Sims confronted Noble with a gun and cursed at him while Darby
happened to be nearby does not constitute serious provocation
sufficient to excite the passions of a reasonable person in Darby’s
position. 	We 	have 	previously 	concluded 	that 	similar
circumstances 	of 	a 	heated 	confrontation 	do 	not 	warrant 	a
voluntary manslaughter instruction even when the defendant is
directly involved in the argument. See Wilkerson v. State, 317 Ga.
242, 247 (2023) (explaining that an instruction on voluntary
manslaughter was not authorized by evidence that the defendant
and one victim “were involved in a heated argument during which
[the victim] pursued, verbally abused, and threatened to harm
[the defendant]”); Burke v. State, 302 Ga. 786, 790–91 (2018)
(explaining that an instruction on voluntary manslaughter was
not warranted where the defendant testified that the victim
“threatened [him] with nunchucks,” explaining that “acting out of
fear of bodily harm is not the same as acting in the heat of
passion, and only evidence of the latter supports a voluntary
manslaughter conviction”). Thus, the trial court did not err in
declining to instruct the jury on voluntary manslaughter here,
especially 	where 	Darby 	was 	not 	directly 	involved 	in 	the

6
confrontation between Sims and Noble. Accordingly, this claim
fails.
2. Darby asserts that his trial counsel was constitutionally
deficient for failing to object to an investigator’s testimony and
the admission of a photo from Darby’s Facebook page and by
failing 	to 	object 	to 	two 	aspects 	of 	the 	prosecutor’s 	closing
argument. For a defendant to succeed on his claim of ineffective
assistance of counsel, he must establish both that his counsel
performed deficiently and that he was prejudiced by this deficient
performance. See Strickland v. Washington, 466 US 668, 687
(1984). To satisfy the deficiency prong, a defendant “must show
that his lawyer performed in an objectively unreasonable way,
which generally means showing that no reasonable lawyer would
have done what his lawyer did, or would have failed to do what
his lawyer did not.” Fadesire v. State, 324 Ga. 1, 2–3 (2026)
(cleaned up). Additionally, we have explained that “[d]ecisions
regarding trial tactics and strategy … may form the basis for an
ineffectiveness 	claim 	only 	if 	such 	decisions 	are 	so 	patently
unreasonable that no competent attorney would have followed the
same course.” Strong v. State, 323 Ga. 737, 748 (2026). To
demonstrate prejudice, “a defendant must show that, but for
counsel’s 	deficient 	performance, 	there 	was 	a 	reasonable
probability that the result of the trial would have been different.”
Fadesire, 324 Ga. at 3 (quotation marks omitted).
(a) The testimony related to Darby’s failure to “come
forward” was elicited during the following exchange between the
prosecutor and Richmond County Sheriff’s Investigator Chris
Langford:
[PROSECUTOR]: So all these months, from May to
July to September, did [Darby and Noble] ever come
forward or try to make contact with you?

7
[INVESTIGATOR LANGFORD]: They did not.
[PROSECUTOR]: Did they ever try and explain how
the shooting took place?
[INVESTIGATOR LANGFORD]: They did not.
[PROSECUTOR]: Did he ever say, “I was trying to
defend someone else”?
[INVESTIGATOR LANGFORD]: They did not.
[PROSECUTOR]: Did they ever say that Sanquan
Sims had a gun?
[INVESTIGATOR LANGFORD]: They did not.
When questioned at the hearing on the motion for
new trial about why she did not object to this testimony, trial
counsel explained that she knew that evidence that Darby was
not arrested until several months after the murder “was going to
come out” and 	that Investigator Langford’s testimony was
consistent with the defense strategy to show that Darby acted in
defense of others and to show “how terrified [Darby] was of the
situation, 	which 	is 	why 	he 	didn’t 	[come 	forward 	after 	the
shooting].” 	Trial 	counsel 	further 	testified, 	“I 	felt 	that 	[the
testimony] did support my argument later … when we addressed
the fact that he fled.” And the record shows that trial counsel
argued in closing that Darby did not come forward because he
“was scared of … retaliation. Sanquan Sims was a Crip. [Darby]
is not in a gang.” We see no basis for concluding that trial counsel
was 	deficient 	in 	these 	circumstances, 	even 	assuming 	that
Investigator Langford’s testimony was objectionable. See State v.
Orr, 305 Ga. 729, 739 (2019) (noting that whether evidence of a

8
defendant’s “failure to come forward” is admissible will often be
“much harder” to determine under the current Evidence Code
than under prior law). Trial counsel’s decision not to object to
evidence that was consistent with the defense theory of the case—
and was consistent with the arguments that counsel planned to
make 	(and 	did 	make) 	to 	the 	jury—was 	not 	so 	patently
unreasonable that no competent attorney would have made the
same decision. See Piercefield v. State, 932 SE2d 26, 38 (Ga. 2026)
(concluding that trial counsel was not deficient in failing to object
to 	a 	detective’s 	testimony 	that 	indirectly 	referenced 	the
defendant’s right to remain silent, noting that the testimony was
consistent with the defendant’s theory of the case). Thus, Darby
has failed to meet his burden to show that his trial counsel
performed deficiently in this regard.
(b) The evidence arguably showing Darby’s connection to a
gang was admitted through an investigator who testified as a
gang 	expert. 	During 	the 	investigator’s 	testimony, 	the 	State
introduced into evidence a photo of Darby standing with three
other people, one of whom was wearing a T-shirt with the words,
“OWTT GANG SHIT ONLY”; the photo had been posted to
Darby’s 	Facebook 	account 	approximately 	three 	years 	before
Sims’s murder. The investigator testified that OWTT was a “local
gang,” and Darby’s trial counsel elicited on cross-examination
that 	Darby 	was 	not 	wearing 	any 	“gang-related” 	clothing 	or
making “any hand signs.” 4
4 The 	gang 	expert’s testimony 	on 	direct examination 	spanned
approximately 35 pages of transcript and focused on Noble and Sims’s
affiliations with rival gangs and their online arguments with each other and
other gang members; the testimony about the “OWTT Gang” photo was covered
in about two pages of transcript. It is unclear why the State offered the “OWTT

9
At the hearing on the motion for new trial, trial counsel
explained why she did not object to the photo, testifying that she
made a “strategic” decision not to object to the photo because she
“wanted it to come in for the purposes of being able to compare …
[Darby’s] level of involvement against that of the co-defendant.”
And the record shows that in her closing argument, trial counsel
highlighted 	the 	gang 	expert’s 	testimony 	about 	the 	gang
affiliations of Noble and Sims and argued that there was no
similar evidence connecting Darby to a gang—just “a photo from
2016 of Tony Darby with multiple other people, where Tony
Darby is not wearing anything that indicates he’s in a gang,
where Tony Darby is not throwing up any gang signs or anything
like that.”
Given 	trial 	counsel’s 	strategy 	to 	contrast 	the 	limited
evidence of Darby’s connection to a “local gang” with the evidence
of Noble’s and Sims’s more extensive gang connections, we cannot
say that the decision not to object to the photo was patently
unreasonable. See Sharpe v. State, 310 Ga. 254, 257–58 (2020)
(concluding that trial counsel was not deficient in failing to object
to agent’s testimony where testimony was consistent with the
defense theory and allowed trial counsel to use the testimony to
support that theory); Griffin v. State, 309 Ga. 860, 867 (2020)
(“Given counsel’s founded, reasonable belief that [the defendant]
was best served by using this evidence to his advantage instead
of objecting to it, counsel’s decision amounted to reasonable trial
strategy that does not constitute deficient performance.”). Thus,
this claim of ineffectiveness fails.
(c) Darby also argues that trial counsel was deficient in
Gang” photo into evidence as there was no testimony that Noble or Sims had
any connection to or rivalry with that gang; nor was Darby charged with any
offenses under the Street Gang Terrorism and Prevention Act.

10
failing 	to 	object 	to 	two 	aspects 	of 	the 	prosecutor’s 	closing
argument. In considering claims of ineffectiveness of trial counsel
for failing to object to a prosecutor’s closing argument, we note
that it is well-settled that “[a] prosecutor is granted wide latitude
in the conduct of closing argument,” and “[a] closing argument is
to be judged in the context in which it is made.” Thompson v.
State, 318 Ga. 760, 767–68 (2024) (quotation marks omitted).
Moreover, “whether to object to a particular part of a prosecutor’s
closing argument is a tactical decision, and counsel’s decision not
to make an objection must be patently unreasonable to rise to the
level of deficient performance.” Id. at 768 (cleaned up). Finally,
we note that “[t]he permissible scope of argument is vast” and
that “counsel may draw from the evidence properly before the
factfinder any inference apparently reasonable and legitimate.”
Morgan v. State, 267 Ga. 203, 203 (1996) (quotation marks
omitted).
(i) With regard to the first claim of ineffectiveness relating
to the closing argument, the record shows that in his rebuttal
argument, the prosecutor referenced the “OWTT GANG” T-shirt
and argued: “Gangship. You saw it. It was on the T-shirt. Where
do you go when you need to hide out? You go to your homies. You
go to your boys. That’s where he went….” At the motion-for-new-
trial hearing, trial counsel was not asked why she did not object
to this comment. Nevertheless, we conclude that a competent
attorney may have reasonably determined that the prosecutor’s
suggestion that Darby was hiding with gang members was a
permissible 	inference 	given 	the 	evidence 	that 	Darby 	eluded
capture for several months and that any objection on that basis
would have been denied. See Almond v. State, 324 Ga. 515, 521
(2026) (concluding that trial counsel was not deficient in failing
to object to the prosecutor’s comments in closing arguments about
the veracity of witnesses given that “a competent attorney may

11
have reasonably determined that the prosecutor’s comments were
well within the scope of the wide latitude granted prosecutors to
argue reasonable inferences from the evidence”). Thus, this claim
fails.
(ii) With regard to the second claim of ineffectiveness
relating to the closing argument, the record shows that the State
presented evidence of the contents of Darby’s cell phone records,
including that after the shooting, Darby’s phone received text
messages stating, “Please, baby let me help you” and “If you’re
out there, you need to turn yourself in; you don’t want to be
considered a fugitive.” At the beginning of his closing argument,
the prosecutor said, “let’s talk about the defendants real quick,”
and after talking about Noble briefly, turned to discussing Darby.
In an argument spanning less than one trial transcript page, the
prosecutor pointed out that Darby’s cell phone records placed him
at the scene of the shooting; that on the same day, Darby “turned
his phone off so that no one could track him down”; that Darby
“was on the run for 122 days”; and that while there was evidence
of text messages Darby received encouraging him to turn himself
in, “[n]ot once was there a message, though, saying, ‘You didn’t do
anything wrong[]’ … because everybody knows. Everybody knows
what he did, that he murdered Sanquan Sims, that he shot at him
several times.” The prosecutor immediately shifted gears to “talk
about the law,” and went through the elements of the offenses set
forth in the indictment.
Darby contends that trial counsel should have objected
when the prosecutor argued that “everybody knows … that he
murdered” 	Sims 	because 	that 	argument 	was 	improper
“reputational 	hearsay” 	that 	was 	“extrinsic 	and 	prejudicial.”
However, the prosecutor’s statement “everybody knows” was a
very brief, rhetorical comment based on the text messages in

12
which third parties urged Darby to turn himself in and was made
while giving an outline of evidence from Darby’s cell phone
records showing that he was at the scene of the shooting, fled from
the scene, and took steps to avoid detection. See Morgan, 267 Ga.
at 203. And when considered in this context, we note that,
generally, a defendant’s flight from the scene of the crime is
circumstantial evidence of guilt. See Jenkins v. State, 313 Ga. 81,
89 (2022). Additionally, the trial court had indicated in the charge
conference that it would instruct the jury that closing arguments
are not evidence, and the record reflects that the trial court gave
that instruction.
In light of the context in which the brief comment was
made and the anticipated jury instruction, we conclude that the
failure to object was not such a patently unreasonable decision
that no reasonable lawyer would have failed to make an objection.
See Fadesire, 324 Ga. at 4 (concluding that trial counsel was not
deficient in failing to object to prosecutor’s comment in closing
that “I know who did it”); Thompson, 318 Ga. at 768 (concluding
that trial counsel was not deficient in failing to object to the
prosecutor’s argument in closing that “there has been no evidence
exonerating [Appellant]”). Thus, Darby has not met his burden to
show that his trial counsel was deficient in this regard. 5
5 Darby also contends that his trial counsel was deficient in failing to
“object to the prosecutor’s use of Mr. Darby’s pre-arrest silence as evidence of
guilt.” However, Darby does not identify the allegedly improper comment, and
the record cite he provides is to the prosecutor’s argument that Noble “never
once came in and said, ‘Here’s what happened, here’s my story.’” Moreover,
even assuming that the prosecutor’s argument about Noble’s failure to come
forward could be construed as implicating Darby as well, Darby did not raise
this argument as a basis for his claim of ineffective assistance at the motion-
for-new-trial stage, when he had new counsel. Therefore, Darby has not

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Accordingly, Darby’s claims of ineffectiveness fail. 6
Judgment affirmed. All the Justices concur.
preserved for review his claim that trial counsel was deficient in not
challenging the prosecutor’s closing argument on the basis that it was a
comment on pre-arrest silence. See Strong, 323 Ga. at 749.
6 On the last page of his appellant’s brief, Darby makes a cursory
argument that reversal is required under the cumulative error rule of State v.
Lane, 308 Ga. 10, 14 (2020). Assuming, without deciding, that his brief
argument is sufficient to preserve a cumulative error claim, Darby has not
established the existence of any trial court errors, and we have concluded that
trial counsel did not perform deficiently in any of the ways challenged. Thus,
there is nothing to assess cumulatively. See Scott v. State, 321 Ga. 701, 716
(2025). Accordingly, this claim fails.