Bates v. State

FINAL COPY

                 S23A0881. BATES v. THE STATE.
                S23A1225. JORDAN v. THE STATE.
               S24A0055. SOUTHERN v. THE STATE.


      PINSON, Justice.

      Tavius Bates, Octavious Jordan, and Jeremy Southern were

convicted along with two co-defendants of crimes arising from the

shooting death of Nicholas Hagood.1


      1 The crimes occurred on March 26, 2014. On July 18, 2014, a Fulton

County grand jury indicted Bates, Jordan, Southern, and two co-defendants—
Stephen Willis and Demetrius Fortson—on eight counts each: malice murder,
armed robbery, felony murder predicated on armed robbery, hijacking a motor
vehicle, felony murder predicated on hijacking a motor vehicle, aggravated
assault, felony murder predicated on aggravated assault, and possessing a
firearm during the commission of a felony. Willis alone was also indicted for
possession of a firearm by a convicted felon and felony murder predicated on
that charge. The defendants were tried together before a jury from August 28
to September 8, 2017. The jury found Southern guilty of all counts and found
Bates, Jordan, Willis, and Fortson not guilty of malice murder but guilty of the
remaining counts. We affirmed Willis’s and Fortson’s convictions on appeal.
See Willis v. State, 

 (

) (2022); Fortson v. State, 

 (

) (2022).
       Bates was sentenced to life in prison for felony murder predicated on
armed robbery, 20 years in prison for hijacking a motor vehicle, and five years
in prison suspended for possessing a firearm during the commission of a felony,
all to run concurrently. The remaining counts merged or were vacated by
operation of law. On September 25, 2017, Bates filed a timely motion for new
trial, which he amended through new counsel. After a hearing, the trial court
      In separate appeals, all three co-defendants argue that the

evidence was not sufficient to sustain their convictions. In addition,

Bates contends that the trial court should have granted a mistrial

when a detective testified that Jordan told police he drove “the other

subjects” to the crime scenes, which Bates says violated his

Confrontation Clause rights under Bruton v. United States, 

 (

, 20 LE2d 476) (1968). And Southern contends that


denied the motion for new trial, as amended, on February 21, 2023. On March
21, 2023, Willis filed a timely notice of appeal. The case was docketed to the
August 2023 term of this Court and submitted for a decision on the briefs.
       Jordan was sentenced to life in prison for felony murder predicated on
armed robbery, 20 years in prison for hijacking a motor vehicle, and five years
in prison suspended for possessing a firearm during the commission of a felony,
all to run concurrently. The remaining counts merged or were vacated by
operation of law. On September 20, 2017, Jordan filed a timely motion for new
trial, which he amended through new counsel. After a hearing, the trial court
denied the motion for new trial, as amended, on February 21, 2023. On
March 22, 2023, Jordan filed a timely notice of appeal. The case was docketed
to the August 2023 term of this Court and submitted for a decision on the
briefs.
       Southern was sentenced to life in prison for malice murder, 20 years in
prison for armed robbery, and 20 years in prison for hijacking a motor vehicle,
all to run concurrently, and five years in prison for possessing a firearm during
the commission of a felony, to be served consecutively. The remaining counts
merged or were vacated by operation of law. On September 25, 2017, Southern
filed a timely motion for new trial, which he amended through new counsel.
After a hearing, the trial court denied the motion for new trial, as amended, on
June 26, 2023. On July 10, 2023, Southern filed a timely notice of appeal. The
case was docketed to the December 2023 term of this Court and submitted for
a decision on the briefs. Southern’s case has been consolidated on appeal with
Bates’s case and Jordan’s case.
                                       2
the trial court erred by instructing the jury about conspiracy because

there was no evidence of a conspiracy, and by allowing a jailhouse

informant to testify because the informant was acting as an agent of

the State and he obtained incriminating information from Bates

without counsel present.

     Each of these claims fails. The evidence was sufficient as a

matter of constitutional due process to sustain each of these

defendants’ convictions. Bates did not preserve his Bruton claim

because he acquiesced to the trial court’s curative instruction and

failed to renew his motion for a mistrial after the instruction was

given. It was not error for the trial court to instruct the jury about

conspiracy because there was at least slight evidence of a conspiracy:

the evidence showed that Southern and Bates confronted Hagood

while the other co-defendants waited in the car, that the co-

defendants left the crime scene together after the murder with

Hagood’s stolen car and cell phone, and that the co-defendants were

either together or in contact with each other before, during, and

after the murder. And the jailhouse informant was not an agent of

                                  3
the State because there was no evidence of an agreement between

the informant and the State.

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

evidence at trial showed the following.

     On March 26, 2014, just after 12:30 p.m., Rayshon Smith was

robbed at gunpoint. Smith was outside his cousins’ apartment

building in Austell (in Cobb County) when he noticed a car driving

past slowly. The car was a silver or gray Ford Taurus with tinted

windows, and Smith could see four men inside. Smith then noticed

two men walking toward him. One of them came right up to Smith,

pointed a gun at him, and went through his pockets while looking

him in the eye. The man took Smith’s wallet, phone, and keys. The

other man also had a gun but did not come as close.

     After the men left, Smith went into the apartment building and

called the police. He gave police the number of his phone that was

stolen. Later, Smith identified Southern in a photo array as the man

who had been closest to him during the robbery.

     About a half hour later, at around 1:00 p.m., Joseph James was

                                 4
at home in his apartment in Fulton County, not far from where

Smith was robbed. James was looking out the window into the

parking lot and noticed two cars pulling up. One of the cars, which

was driven by Hagood, pulled into a parking space. The other car

wedged behind it. When Hagood got out of the car, he seemed “out

of place” and “slightly disoriented.” James saw Hagood and a man

with dreadlocks standing next to the car that Hagood had been

driving, while a third man remained in that car. Four or five men

were in the other car. As James watched, Hagood appeared to check

his pockets, and then appeared to say “I don’t have anything” to the

man with dreadlocks. The man with dreadlocks appeared to “check”

Hagood, “like trying to figure out does he have something.” At that

point, one of the men from the second car got out, holding a gun, and

moved toward Hagood and the man with dreadlocks. Hagood tried

to run. James heard a gunshot. The medical examiner testified at

trial that Hagood was killed by a gunshot wound to the back.

     James called 911 at 1:16 p.m. Later, when shown photo arrays,

James identified Southern as the man with the gun and Bates as

                                 5
the man with dreadlocks who had been speaking to Hagood.2

     Detective Scott Demeester, the lead investigator on the case,

arrived at the scene at around 1:45 p.m. Demeester contacted

Hagood’s wife, who told him that Hagood normally would have a cell

phone and a car, neither of which was found at the crime scene.

Hagood’s wife gave the detective Hagood’s cell phone number and

the tag number for his white Toyota Corolla, and Demeester put out

alerts for both the phone and the car.

     At the murder scene, police found a wallet and set of keys

belonging to Smith, who had recently been robbed nearby. Detective

Demeester contacted Smith and learned that his cell phone had been

stolen in the robbery. The detective then subpoenaed the phone

records associated with Smith’s stolen phone, as well as those

associated with Hagood’s missing phone.

     The records from Hagood’s phone showed that someone sent a

text message to Hagood’s phone after the shooting, at 1:29 p.m. But


     2 At trial, James said he was “troubled” when he identified Bates in the

photo array, because the photo of Bates in the array did not show him with a
dreadlocks hairstyle. See Fortson, 

 (1).
                                     6
that message was not received until 3:10 p.m., indicating that the

phone was powered off or otherwise disconnected in the interim.

When Hagood’s phone finally received the message, it “pinged” off a

cell tower in the area of an apartment complex on Kelly Lake Road

in Decatur. Jordan’s aunt lived in that complex. Jordan himself was

living at a nearby hotel, and Southern lived in the area, too. A

maintenance man from the Kelly Lake Road apartment complex

testified that he had seen Hagood’s white Toyota Corolla and the

defendants’ silver Ford Taurus parked at that apartment complex

later in the week, after the shooting. Hagood’s car was eventually

recovered in the same area.

     The records from Rayshon Smith’s cell phone showed that

someone used it several hours after it was stolen to call MetroPCS

customer service to unlock it. After it was unlocked, the phone was

used to place and receive calls and text messages to and from people

that phone had never been used to contact before it was stolen. The

new contacts included Southern, his co-defendant Stephen Willis,

Jordan’s girlfriend, and a phone number belonging to the mother of

                                 7
the other co-defendant, Demetrius Fortson, who often used his

mother’s phone. Police searched the phone of another of the new

contacts in Smith’s phone, Dionte Wooten, and found that Smith’s

number was saved in Wooten’s phone under Jordan’s nickname,

“Tay Tay.”

     Jordan and Bates were arrested and interviewed. In Jordan’s

interview, he admitted he was present at the armed robbery of

Smith, that he took Smith’s phone (and later sold it), and that he

then drove to another location where a “white man” was robbed.

Bates, in his statement, admitted he was present at both the robbery

of Smith and the shooting of Hagood. Bates claimed that he was

texting while the crimes were committed, but his phone records

showed no text messages sent or received at that time. Portions of

their statements were played for the jury at trial. Neither Jordan

nor Bates mentioned any of their co-defendants in the portions of

their statements that were played at trial.

     In the portion of Jordan’s interview that the jury did not hear,

Jordan   identified   his   co-defendants   by   name.   Using   that

                                  8
information, Detective Demeester obtained a search warrant for the

cell-phone records of Jordan, Bates, Southern, and Willis, as well as

Fortson’s mother. From those records, detectives put together a

timeline of the defendants’ whereabouts and phone activities on the

day of the crimes, as follows.

     On the morning of the crimes, Jordan, Bates, Southern, and

their co-defendants were in regular contact. Jordan and Southern

started out in the area of Decatur where they both lived, and their

co-defendant Willis started out somewhere west of Stone Mountain.

Jordan’s and Southern’s phones called each other at 8:53 a.m. and

9:20 a.m., and Jordan’s and Bates’s phones called each other at

10:19 a.m., 10:24 a.m., and 10:32 a.m. Bates’s phone then went

inactive for three hours, but Jordan and Southern continued using

their phones. Shortly after 10:30 a.m., Jordan’s and Southern’s

phones drove north on I-285 toward Stone Mountain Highway, then

east on the highway toward Stone Mountain. Jordan’s and

Southern’s phones called Willis’s phone at 10:48 a.m. and 10:59 a.m.,

respectively; all three phones pinged off the same cell tower near

                                 9
Stone Mountain. A little later, Southern’s phone drove west on Stone

Mountain Highway and south on I-285, heading back the way it and

Jordan’s phone had come. (Jordan’s phone was inactive during this

time.) At 12:05 p.m., Southern’s phone called Fortson’s mother’s

phone while Southern was approaching Fortson’s home in southeast

Atlanta.

     A short time later, just after Smith was robbed, Jordan’s phone

received a call at 12:37 p.m., and Willis’s phone made and received

calls at 12:43 p.m. and 12:47 p.m., all in the area of the robbery.

Southern’s phone pinged off a cell tower in the same area at the

same time. Likewise, minutes before Hagood was killed, Jordan’s,

Southern’s, and Willis’s phones all made calls near the murder

scene.

     The phones went silent for a time after the murder. Then, at

1:47 p.m., Bates’s and Willis’s phones both made calls near Fortson’s

home. Jordan’s and Southern’s phones made and received calls a

short time later in the same area. All five defendants’ phones pinged

off cell towers in that area that afternoon—as did Hagood’s stolen

                                 10
phone, at 3:10 p.m.

     The State also introduced testimony from a jailhouse

informant. The informant, Victor Seldon, was in jail with Bates, who

had been arrested on an unrelated charge after Hagood was killed.

While they were in jail together, Bates told Seldon about the armed

robbery of Rayshon Smith. Seldon asked his family to look into the

matter and was eventually put in touch with the Cobb County

district attorney’s office. The district attorney’s office arranged for

Seldon to testify at the armed robbery trial. On the day Seldon was

to testify, while waiting in a holding cell in the courthouse basement,

he saw Bates and Southern walk by. Bates said to Southern, “[t]hat’s

that motherf**ker right there.” Southern then said to Seldon, “Hey,

man, keep your motherf**king mouth closed. We know your family.

We know where they live. We even know what car they drive. Keep

your motherf**king mouth closed.” Southern named the specific

model of car that Seldon’s wife had recently purchased, which

convinced Seldon that “they had to be pretty close upon it.”

Frightened by that threat, Seldon did not testify at the armed

                                  11
robbery trial. Later, Seldon saw Bates again in the jail. Bates, who

knew that Seldon would be released soon, offered to pay Seldon to

“get rid of” a gun for Bates after Seldon was released.

     2. All three appellants contend that the evidence was

constitutionally insufficient to sustain their convictions. See

Jackson v. Virginia, 

 (III) (B) (

, 61

LE2d 560) (1979). Bates and Jordan, relying on OCGA § 24-14-6,

additionally argue that the evidence against them—which they

characterize   as   purely   circumstantial—did    not    exclude   all

reasonable hypotheses other than their guilt.

     “We evaluate a due process challenge to the sufficiency 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 reasonable

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

 (2) (

) (2023). We do not reweigh

evidence, see Williams v. State, 

 (1) (

)

(2018), and we leave to the jury “the resolution of conflicts or

                                 12
inconsistencies in the evidence, credibility of witnesses, and

reasonable inferences to be derived from the facts.” Perkins v. State,

 (2) (a) (

) (2022) (citation and

punctuation omitted).

     A conviction may rest on circumstantial evidence alone if that

evidence “exclude[s] every other reasonable hypothesis save that of

the guilt of the accused.” OCGA § 24-14-6. See Davenport v. State,

 (1) (

) (2020). Not every hypothesis is a

“reasonable” one, and the evidence “need not exclude every

conceivable inference or hypothesis,” only the reasonable ones.

Graves v. State, 

 (1) (

) (2019) (citation

and punctuation omitted; emphasis in original). “The questions

whether any alternative hypotheses are reasonable and whether the

circumstantial evidence excludes any such hypotheses are for the

jury.” Willis v. State, 

 (2) (

) (2022). See

also Merritt v. State, 

 (1) (

) (2009).

Finally, we will not disturb the jury’s findings on those questions

unless they are “insupportable as a matter of law.” Graves, 

at 487 (1) (citation and punctuation omitted).

      Here, the evidence was sufficient to authorize the jury to find

Bates, Jordan, and Southern guilty of Hagood’s murder and the

related crimes. Southern was directly identified as the shooter by a

witness to the murder; the same witness identified Bates as the

second man who confronted Hagood. See Jackson v. State, 

 (

) (2020) (eyewitness testimony is direct

evidence of guilt).3 Jordan admitted that he drove the co-defendants

to the scene of the murder, and Bates admitted he was present, too.

See Thrift v. State, 

 (1) (

) (2020)



      3 Bates acknowledges that James identified him as the second man who

confronted Hagood. But he contends that we “determined” that the second man
was his co-defendant Fortson when we affirmed Fortson’s convictions.
         We did not. At trial, James was unsure whether the man with dreadlocks
he had seen going through Hagood’s pockets was Bates or Fortson. We
concluded the evidence authorized the jury to find that it was Fortson. See
Fortson, 

 (1). This Court did not determine that it
was Fortson—nor could we, as a court of review. See 

 See Ga. Const. of 1983,
Art. VI, Sec. VI, Par. II (“The Supreme Court shall be a court of review….”);
Ellington v. State, 

 (2) (

) (2022) (“the resolution
of . . . conflicts or inconsistencies in the evidence is for the jury, and we will not
reweigh that evidence on appeal”). And in any event, James’s identification of
Bates was direct evidence of his guilt even though James expressed doubts.
“[D]irect evidence is not converted into circumstantial evidence by a witness’s
credibility or lack thereof.” Harper v. State, 

 (

)
(2015).
                                         14
(confessions are direct evidence of guilt). Also, Smith’s stolen wallet

and keys were found at the murder scene, suggesting that the men

who shot Hagood were the same men who had earlier robbed

Smith—and      “from   that   inference   flowed   further   evidence

implicating the group.” Willis, 

 (2). Indeed, Smith

identified Southern as one of the robbers, and after the murder,

Jordan used Smith’s stolen phone and later sold it. See Eckman v.

State, 

 (1) (

) (2001) (circumstantial

evidence of guilt included defendant’s use of “the fruits of the multi-

county crime spree”). And later, Southern and Bates threatened

Victor Seldon not to testify at their trial for the armed robbery. That

evidence was sufficient as a matter of constitutional due process to

support the co-defendants’ convictions.

     Bates and Jordan also raise a statutory sufficiency argument

under OCGA § 24-14-6. They contend that the evidence of their

guilt—which, again, they characterize as entirely circumstantial—

did not eliminate the hypothesis that they were merely present at

the crime scenes.

                                  15
     To begin with, the circumstantial evidence statute does not

apply to Bates because there was direct evidence of his guilt: a

witness identified him with Southern and Hagood at the scene of the

shooting. See Garay v. State, 

 (2) (

)

(2022) (“if there is any direct evidence presented by the State, the

circumstantial evidence statute does not apply to a sufficiency

analysis”). So we apply the statute only to review the sufficiency of

the evidence against Jordan, which arguably was all circumstantial.

     Ultimately, however, it makes no difference, because the

evidence was more than sufficient for the jury to reject the claim

that Bates and Jordan were merely present, both as a matter of

constitutional due process and under OCGA § 24-14-6. A defendant

may be guilty of a crime if he directly commits the crime or if he is a

“party thereto.” OCGA § 16-2-20 (a). A party to a crime is one who,

among other things, “aids or abets” in its commission or “advises,

encourages, hires, counsels, or procures another to commit the

crime.” OCGA § 16-2-20 (b) (3)-(4). See also Muse v. State, 

 (2) (

) (2023). To establish that a defendant is

                                  16
a party to a crime, the State must show “proof of a shared criminal

intent with the actual perpetrator.” Henderson, 

 (2)

(citation and punctuation omitted) (alterations accepted). That

shared criminal intent may be inferred from the defendant’s

“presence, companionship, and conduct before, during, and after the

offense.” Jones v. State, 

 (3) (

) (2022)

(citation and punctuation omitted). But the defendant’s mere

presence at the crime scene, without more, is not enough to show a

shared criminal intent. See McCoy v. State, 

 (b) (

) (2023).

     The evidence here authorized the jury to find that Bates and

Jordan were guilty of Hagood’s murder as parties to the crime and

to reject the hypothesis that they were merely present at the scene.

Besides the evidence recounted above, the cell-phone data showed

that the co-defendants’ phones moved together around the city

before and after the crimes and stayed in communication throughout

the day. The phones of Bates, Jordan, and Southern were all in

contact in the morning. Jordan’s and Southern’s phones traveled

                                 17
together from the area of their homes in Decatur to near Stone

Mountain. Then those two phones and Willis’s phone returned to

Decatur and contacted Fortson’s mother’s phone near where Fortson

lived. Later, the phones of Jordan, Southern, and Willis all made or

received calls near the armed robbery and near the murder. See

Grier v. State, 

 (1) (

) (2019) (cell-phone

records placing defendant near crime scene contributed to evidence

authorizing guilty verdict). Still later, all the co-defendants’ phones

were active back in Decatur, near where several of them lived, in the

same area where Hagood’s stolen phone was used and where his

stolen car was recovered. See Carter v. State, 

 (2)

(

) (2019) (circumstantial evidence of guilt included the

location of the victim’s phone after the victim’s death).

     Some of Bates’s and Jordan’s individual conduct also supported

the inference of their guilt. Bates lied to police that he was texting

when the crimes occurred, from which the jury could infer that he

was trying to hide his own participation. And Jordan parked his car

behind Hagood’s car at the murder scene as though to prevent

                                  18
Hagood from leaving, from which the jury could infer that Jordan

knew a crime was about to be committed.

     Given the ample evidence that Bates and Jordan shared a

criminal intent with Southern and the other co-defendants, the jury

could reject as unreasonable the claim that they were merely

present at the crime scenes. See OCGA § 24-14-6; Poole v. State, 

 (

) (2021). Because the jury’s finding is

not insupportable as a matter of law, we do not disturb it. See

Graves, 

 (1).

     Finally, Bates separately contends that the trial court erred by

denying his motion for a directed verdict of acquittal. Because our

standard for reviewing a direct-verdict motion is the same as that

for reviewing the constitutional sufficiency of the evidence, see

Crawford v. State, 

 (2) (

) (2021),

this claim likewise fails.

     3. In Case No. S23A0881, Bates contends the trial court abused

its discretion by denying his motion for mistrial after Detective

Demeester testified about the statement Jordan gave to police. In

                                 19
Bates’s view, a portion of Jordan’s statement violated Bates’s

Confrontation Clause rights under Bruton, because it was

“powerfully incriminating” of Bates.

     (a) While being questioned by the State, Detective Demeester

testified that Jordan had implicated “the other subjects” in his

statement:

     Q: [Jordan’s counsel] asked you some questions about Mr.
     Jordan. Do you remember?
     A: Yes.
     Q: He asked you did Mr. Jordan put himself out [of] the
     car. Do you recall the question?
     A: Yes.
     Q: Okay. What role in this whole armed robbery in Cobb
     and murder in Fulton does Jordan put himself in?
     A: That he drove the other subjects to the location in Cobb
     County and then removed them from the robbery location
     after they robbed Mr. Smith and then was down on Fulton
     Industrial Boulevard with the other subjects when Mr.
     Hagood pulled up.

Bates’s counsel immediately asked to make a motion outside the

presence of the jury. When the jury had been excused, counsel moved

for a mistrial, arguing that Demeester had mentioned “the other

subjects,” and the only “other subjects” were Jordan’s co-defendants.

See Bruton, 

 (recognizing that “powerfully

                                 20
incriminating extrajudicial statements” by a non-testifying co-

defendant can violate a defendant’s right to confront witnesses

against him).

     The court decided that it would issue a curative instruction.

Bates’s counsel responded, “If the court is going to instruct the jury

to disregard that, then we just need to move on from that point.” The

court then instructed the jury:

          You are to disregard the witness’s answer. You are
     not to consider that in the evidence. And you are to
     disregard it completely.
          So anyway, we’ll continue in a minute. But if you are
     unable to follow my instruction, please raise your hand.

No juror raised their hand, the trial continued, and Bates’s counsel

did not renew the motion for a mistrial.

     (b) We do not reach Bates’s Bruton claim because it was not

preserved for appeal. To ensure appellate review of the denial of a

motion for mistrial, a defendant generally must preserve the issue

at trial. See Jones v. State, 

 (2) (

)

(2023). To do that, the defendant first must make a motion at the

earliest opportunity in the trial court. See Thomas v. State, 

579, 581-582 (2) (

) (2020) (“If the defendant did not

make a contemporaneous motion for a mistrial at the time the

defendant became aware of the matter giving rise to the motion,

then the defendant has waived review of this issue on appeal.”)

(citation and punctuation omitted). If the trial court denies the

motion, the error is preserved. See, e.g., Richardson v. State, 

 (2) (

) (2020) (reviewing trial court’s denial of

mistrial on the merits where defendant “moved for a mistrial, which

the trial court denied”). But if the trial court instead takes steps to

cure the matter giving rise to the motion, like giving a curative

instruction, the defendant has a choice: accept the curative

instruction and move on, or object, renew the motion for mistrial,

and obtain a definitive ruling on that motion. The denial of the

mistrial motion is preserved for review only in the latter case—that

is, by the renewal of the mistrial motion and a definitive ruling on

that motion.4 See Hartsfield v. State, 

 (2) (

 The defendant’s failure to preserve a mistrial motion for review does

not necessarily mean that the underlying alleged error that was the basis of

                                    22
90) (2014) (denial of mistrial waived for appeal because defendant

“failed to renew his motion for mistrial following the trial court’s

admonishment and curative instruction”); McCoy v. State, 

 (8) (

) (2001) (denial of mistrial waived for

appeal because defendant “neither objected to the curative

instruction nor renewed his motion for a mistrial”).

      Bates did not take the steps necessary to preserve his mistrial

motion for appeal. He made a contemporaneous motion: as soon as

Detective Demeester testified about Jordan mentioning “the other

subjects,” Bates asked for the jury to be excused and then moved for

a mistrial. But when the trial court proposed issuing a curative

instruction, Bates not only did not object to the instruction, but

acquiesced: counsel said “If the court is going to instruct the jury to

disregard that, then we just need to move on from that point.” And

Bates did not renew the motion for mistrial after the trial court



the mistrial motion cannot be reviewed. If the underlying alleged error was
evidentiary in nature, it may be reviewed for plain error so long as the
defendant raises it on appeal. See, e.g., King v. State, 

 (3) (c)
(

) (2023). Here, however, Bates argues on appeal only that the
trial court abused its discretion in denying his mistrial motion.
                                       23
issued the curative instruction. Having failed to object to the

curative instruction and renew the motion for mistrial, Bates did not

preserve the issue for appeal. See Hartsfield, 

 (2);

McCoy, 

 (8). See also Blackshear v. State, 

 (4) (

) (2009) (declining to review Confrontation

Clause issue that was not properly preserved for appeal).

     4. In Case No. S24A0055, Southern contends the trial court

erred by instructing the jury on conspiracy over his objection.5 We

review de novo a properly preserved claim that a trial court gave an

incorrect jury instruction. See Reese v. State, 

, 879-880


     5 The trial court instructed the jury about conspiracy as follows:

            A person commits conspiracy to commit a crime when that
     person together with one or more other persons conspires to
     commit any crime in any one or more of such person — and any
     one or more of such person does any overt act to bring about the
     object of the conspiracy.
            A conspiracy is an agreement between two or more persons
     to do an unlawful act. And the existence of a conspiracy may be
     established by proof of acts and conduct as well as proof of an
     express agreement.
            When persons associate themselves in an unlawful
     enterprise, any act done by any party to the conspiracy to further
     the unlawful enterprise is considered to be the act of all
     conspirators. However, each person is responsible for the acts of
     others only insofar as such acts are naturally and necessarily done
     to further the conspiracy. Whether or not a conspiracy existed in
     this case is a matter for you to determine.
                                     24
(2) (

) (2022).

     A conspiracy instruction is authorized even if no defendant is

charged with that offense, see OCGA § 16-4-8 (defining offense of

conspiracy), so long as “slight evidence tends to show a conspiracy.”

Brown v. State, 

 (3) (

) (2018). And a

conspiracy can be shown by either an express agreement to commit

a crime, see Shepard v. State, 

 (3) (

)

(2016), or a “tacit mutual understanding between persons to pursue

a common criminal objective,” Wilson v. State, 

 (2)

(

) (2023) (citation and punctuation omitted). The

mutual understanding may be established either by direct proof or

by inference from acts and conduct which “disclose a common design

to act together for the accomplishment of the unlawful purpose.” 

(citation and punctuation omitted). Finally, “it is well established

that presence, companionship[,] and conduct that discloses a

common design before and after the offense are circumstances which

may give rise to the existence of a conspiracy.” O’Neal v. State, 

 (4) (

) (2023) (citation and punctuation

                                 25
omitted).

     In light of this well-settled law on what evidence can establish

a conspiracy, here there was slight—indeed, ample—evidence of a

conspiracy between Southern and his co-defendants. The evidence

showed that Southern and Bates confronted Hagood together while

the other co-defendants waited nearby in two separate cars, and that

after Southern shot Hagood, the co-defendants left together with

Hagood’s car and cell phone. And Southern was together with or in

contact with the co-defendants throughout the day of the crimes.

That was sufficient to support an inference that Southern and at

least one of the other co-defendants had a mutual understanding

that they would rob Hagood at gunpoint. See O’Neal, 316 Ga. at 270

(4) (not error to instruct jury about conspiracy when evidence was

“sufficient to support the inference that O’Neal and at least one of

the other men in the car had a mutual, if only tacit, agreement to

lure [the victim] to meet with them under the guise of a drug

transaction and then rob [the victim] of his money and/or phone”);

Smith v. State, 

 (2) (

) (2019) (not error

                                 26
to instruct jury about conspiracy when evidence showed defendant

and his co-defendants “rode together to the house in their gang

territory where [the victim] was planning to sell drugs,” “fled the

scene together after robbing and shooting” the victim, and

“communicated with each other and were together before, during,

and after the crimes”). Because the evidence supported an inference

that Southern and at least one of his co-defendants had a “common

design to act together for the accomplishment of the unlawful

purpose,” Wilson, 

 (2) (citation and punctuation

omitted), it was not error for the trial court to instruct the jury on

the subject of conspiracy. See O’Neal, 316 Ga. at 270 (4); Brown, 

 (3).

     5. Southern also contends that the trial court erred by

admitting the testimony of the jailhouse informant, Seldon, over

Southern’s objection. In Southern’s view, Seldon’s testimony should

have been suppressed because, when he and Bates spoke in the jail,

Seldon was acting as an agent of the State and Bates did not have

an attorney present, which violated Bates’s right to counsel under

                                 27
the Sixth Amendment to the United States Constitution. See

Massiah v. United States, 

 (

, 12 LE2d

246) (1964).6 In reviewing a trial court’s denial of a motion to

suppress on Sixth Amendment grounds, we accept the trial court’s

factual findings unless they are clearly erroneous, and we review de

novo the trial court’s application of the law to the facts. See Taylor


      6 The State contends that this claim is not preserved for appeal because

Southern did not object to Seldon’s testimony on this specific ground at trial.
But whether Southern preserved this claim is not so clear from the record here.
       The State initially sought to introduce Seldon’s testimony under the co-
conspirator exception to the hearsay rule, as Seldon would testify that Bates
asked him to “get rid of” a gun. See OCGA § 24-8-801 (d) (2) (E) (hearsay rule
does not exclude a statement by a co-conspirator that is in furtherance of the
conspiracy, including in the concealment phase). Then Bates—not Southern—
moved to disqualify Seldon’s testimony on the ground that Southern argues
now—that is, that Seldon was acting as a State agent when he spoke with
Bates. The trial court heard argument from Bates before trial, and denied that
motion.
       Separately, Southern argued before trial that the co-conspirator
exception did not apply to Seldon’s testimony because all the alleged co-
conspirators were in custody when Bates made his hearsay statement. The
trial court did not initially rule on Southern’s argument. The next morning,
the court heard further argument from Southern on the same issue, and at
that point decided it would allow Seldon to testify. Southern’s counsel
responded, “For purposes of the record, Judge, we except.”
       In light of its context, Southern’s objection could be understood as going
only to the co-conspirator hearsay issue he had argued all along. But it could
also be understood as a blanket objection that covered the ground Southern
asserts here. Given this ambiguity, and because the issue on the merits is not
particularly close, we assume without deciding that Southern preserved his
claim for ordinary appellate review. See Outlaw v. State, 

 (2)
(b) (

) (2021).
                                       28
v. State, 

 (3) (

) (2021).

      Southern’s claim fails. Under Massiah, a defendant’s Sixth

Amendment right to the assistance of counsel “is violated by the

admission of incriminating statements which a government agent

deliberately elicits after indictment and in the absence of counsel.”

Higuera-Hernandez v. State, 

 (2) (

)

(2011). But an inmate who merely “acts upon the expectation of an

unpromised reward does not thereby become an agent for the state.”

Rai v. State, 

 (3) (

) (2015) (citation and

punctuation omitted). Accord Burgan v. State, 

 (5)

(

) (1988). And that is all that Southern argues here: he

claims only that Seldon is a “professional snitch” who has testified

for the State several times before, and who obtains confidential

information in jail with the intent of turning it over to the State to

earn a sentence reduction. In other words, Southern argues that

Seldon, at most, “acts upon the expectation of an unpromised

reward.” Rai, 

 (3) (citation and punctuation omitted).

Absent an actual agreement between Seldon and the State to obtain

                                 29
information on behalf of the State, see 

, Southern

cannot show that Seldon was an agent for the State, and so his claim

fails.

         Judgments affirmed. All the Justices concur.



                       Decided December 19, 2023.

         Murder. Fulton Superior Court. Before Judge Krause.

         Charles H. Frier, for appellant (case no. S23A0881).

         Melissa Akins, for appellant (case no. S23A1225).

         Sharp Georgia Law Firm, Randall P. Sharp, for appellant

(case no. S24A0055).

         Fani T. Willis, District Attorney, Kevin C. Armstrong, Mathew

E. Plott, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Beth A. Burton, Deputy Attorney General, Paula K. Smith,

Clint C. Malcolm, Meghan H. Hill, Senior Assistant Attorneys

General, M. Catherine Norman, Eric C. Peters, Assistant Attorneys

General, for appellee.



                                    30