SOMERVILLE v. STATE (2026)

Da'Korey Somerville was convicted of felony murder and other crimes in connection with the shooting death of Jamichael Walker.¹

On appeal, Somerville challenges the sufficiency of the evidence and argues that the trial court erred by admitting certain witness testimony and by mischarging the jury on a certain instruction. For the reasons explained below, his claims fail, so we affirm.

1. As recounted in the appeals of co-defendants Jerel Bostic and Timothy Wright, the evidence at trial showed the following:

The crimes took place outside a local game room at which Walker and, separately, Wright and ․ Somerville were all gambling. Walker was shot multiple times outside the game room's front door, and he died at the scene. After the shooting, Walker's phone was missing from his person. Multiple witnesses observed the shooting from various vantage points, and they testified at trial about what they saw.

Hubert Artis, Walker's cousin, had exited the game room some time before the shooting, going to his car parked outside. As he was leaving the parking lot, Artis saw a fight start outside the game room's front door, though he could not determine how many people were fighting or see who they were. When the fight broke apart, one participant withdrew a pistol and shot another participant. Artis testified that his friend Khalil Davis told him that he saw Bostic “washing hi[m]self off” sometime after the shooting.

Timothy Clark, another cousin of Walker's, was outside the game room at the time of the shooting and testified that he knew Wright and that Wright was the shooter. While he denied seeing Bostic or Somerville, he observed that the guy “tussling” with Walker looked like Bostic. A woman living in a nearby apartment complex heard the shots and saw three men leaving the scene together through the complex, though she could not see who they were.

Walker's acquaintance Ashia Gordon was parked outside the game room with Laportia Johnson shortly before the shooting. While there, Gordon saw Somerville and Bostic talking outside the game room for a couple of minutes. As she and Johnson drove out of the parking lot, Gordon saw a person exit the game room's front door and then saw Walker being pushed against a car as he exclaimed, “Whoa, whoa, whoa, what's going on?” Though Gordon could not see exactly what transpired next, she recalled seeing people shoving each other and then hearing gunshots as she and Johnson drove away. Johnson confirmed that she and Gordon were in a parked vehicle outside the game room, that she saw Walker outside the game room with another person, and that she heard gunshots as they drove away. Johnson denied seeing who any of the participants were in the shooting and testified that she only heard rumors afterward.

Sometime after the shooting, Jamie Walker, the victim's brother, met up with Johnson, who reported that she saw Bostic fighting Walker outside the game room just before the shooting and pointed Bostic out to Jamie as the person Walker was fighting. In addition, Johnson told Jamie that she saw Wright shoot Walker. According to Jamie, Johnson also told him that she was afraid to report what she had seen to the police for concern that something would happen to her family.

․

At trial, the State introduced evidence that Bostic, Wright, and Walker were all members of the Bloods street gang, that Walker was cooperating with police in their investigation of a gang-related murder, and that Walker was expected to testify at trial, which was reportedly known on the “streets.” The State suggested in its opening and closing arguments that the motive underlying Walker's murder was his cooperation in that investigation.

Bostic, 322 Ga. at 688–90, 921 S.E.2d 295.

The evidence presented at trial further showed that Somerville was a member of the Bloods gang. A witness who knew Somerville, Bostic, and Wright testified that the three men were not inside the game room at the time of the shooting. Two different sets of shell casings were recovered from the scene, one of which was fired from a nine-millimeter Glock handgun. Police obtained a warrant and recovered a Glock from Somerville's vehicle, and ballistics testing determined that the shell casing recovered at the scene was fired from that Glock. Also recovered from Somerville's vehicle was a bill of sale for the Glock showing that he purchased the gun four days before the murder.

2. In his first enumeration of error, Somerville appears to challenge the sufficiency of the evidence supporting his convictions both as a matter of federal constitutional due process and as a matter of Georgia statutory law. We address his arguments in turn.

(a) In evaluating the sufficiency of the evidence as a matter of constitutional due process, we review all of the evidence presented at trial in the light most favorable to the verdicts and consider whether any rational juror could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts.” Perkins v. State, 313 Ga. 885, 891, 873 S.E.2d 185 (2022) (quotation marks omitted). Somerville argues that the State failed to prove beyond a reasonable doubt that he was a party to the crimes, asserting that the evidence showed nothing more than his mere presence at the scene of the crimes. We disagree.

“It is well established that a person who does not directly commit a crime may be convicted upon proof that the crime was committed and that person was a party to it.” Clark v. State, 315 Ga. 423, 427, 883 S.E.2d 317 (2023) (cleaned up). See also OCGA § 16-2-20 (defining “party to a crime”). “Conviction as a party to a crime requires proof of a common criminal intent, which the jury may infer from the defendant's presence, companionship, and conduct with another perpetrator before, during, and after the crimes.” Clark, 315 Ga. at 427, 883 S.E.2d 317. “However, mere presence at the crime scene is insufficient to make someone a party to a crime.” Id. at 427–28, 883 S.E.2d 317.

In advancing his sufficiency challenge, Somerville attacks the credibility of an eyewitness who reported seeing Bostic and Somerville talking outside the gaming establishment a few minutes before the shooting, the weight the jury apparently afforded to her testimony, and inconsistencies between her testimony and that of another witness who reported seeing Somerville inside the gaming establishment during the shooting. But “it is axiomatic that resolving evidentiary conflicts and assessing witness credibility are within the exclusive province of the jury.” McCoy v. State, 315 Ga. 536, 543, 883 S.E.2d 740 (2023) (quotation marks omitted). And our review of the record shows that there was evidence from which a reasonable jury could have concluded that Somerville was a party to the crimes charged.

Specifically, evidence showed that Somerville was present at the gambling establishment at the same time as fellow Bloods gang members Walker, Bostic, and Wright, and that an eyewitness who knew Somerville and his co-defendants testified that the three men were not inside the game room during the shooting. A witness saw Somerville outside the establishment talking to Bostic only minutes before the shooting. The evidence also established a gang-related motive for Walker's killing, namely that Walker was cooperating with police in their investigation of a gang-related murder and was expected to testify at trial. Eyewitnesses reported seeing Bostic fight with Walker immediately before the shooting and identified Wright as the shooter. A shell casing recovered at the scene was matched to a gun found in Somerville's vehicle. Immediately after the shooting, three men were seen leaving the scene, and Walker's cell phone was missing from his person.

In short, viewed in the light most favorable to the jury's verdicts, the evidence presented at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Somerville shared a criminal intent with his co-defendants and was not merely present but rather was a party to the crimes for which he was convicted. See Jones v. State, 314 Ga. 214, 232, 875 S.E.2d 737 (2022) (evidence was sufficient to show that defendant was party to the crime where the evidence showed that defendant was a gang member, had related motive to commit the crime, was in the specific area when the crime was committed, the co-defendant was seen on camera shooting the victim while two others were present, and three men fled the scene). See also Crawford v. State, 312 Ga. 452, 455–56, 863 S.E.2d 75 (2021) (“Even where it is undisputed that the victim was shot by another person, every person concerned in the commission of the crime may be convicted of the crime.” (quotation marks omitted)).

(b) Somerville also challenges the sufficiency of the evidence as a matter of Georgia statutory law, arguing that the State failed to exclude the reasonable hypothesis that Somerville was merely present at the gambling establishment when Walker was shot by someone else. Again, we disagree.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6. “Not every hypothesis is a reasonable one, however, and the evidence need not exclude every conceivable inference or hypothesis — only those that are reasonable.” Rashad v. State, 318 Ga. 199, 206, 897 S.E.2d 760 (2024) (cleaned up). Further, “whether any alternative hypotheses are reasonable” — including the possibility of another perpetrator — “and whether the circumstantial evidence excludes any such hypotheses are questions for the jury and we will not disturb the jury's findings on those questions unless they are insupportable as a matter of law.” Lee v. State, 323 Ga. 327, 330, 924 S.E.2d 278 (2025) (cleaned up).

Assuming without deciding that Somerville's conviction was based solely on circumstantial evidence, we conclude that the evidence presented at trial was sufficient for the jury to reject as unreasonable Somerville's argument that he was merely present when someone else shot Walker. As we detailed in Division 2(a), we have already held that the evidence was sufficient as a matter of federal due process for a rational jury to find that Somerville was not merely present. Given that, it cannot be “insupportable as a matter of law” for the jury to have rejected Somerville's hypothesis, and his 24-14-6 claim fails. See Wilson v. State, 319 Ga. 550, 553–54, 905 S.E.2d 557 (2024) (rejecting statutory sufficiency challenge where defendant was in the vicinity of the shooting, he was seen driving car connected to shooting a few minutes before and a short distance away from the shooting, and a shell casing found at the scene was ejected from the same firearm as a shell casing found in that car).

3. Somerville next argues that the trial court erred by permitting the State to introduce statements made by his roommate through the testimony of a GBI agent, in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. Specifically, the GBI agent testified at trial that probable cause to search Somerville's car was established during an interview with Somerville's college roommate. Somerville suggests, without explanation, that his roommate's statements were made during an interrogation, were therefore testimonial, and as such, should have been excluded under the Confrontation Clause. Somerville did not object to this testimony at trial, however, so we review its admission only for plain error. See Pender v. State, 311 Ga. 98, 114, 856 S.E.2d 302 (2021).

To establish plain error, Somerville “must show that the trial court committed a clear or obvious error, that he has not affirmatively waived the error, and that the error affected his substantial rights, which means that it likely affected the outcome of his trial.” Dennis v. State, ––– Ga. ––––, ––––, ––– S.E.2d ––––, S26A0470, slip op. at 6 (Ga. May 19, 2026) (2026 WL 1391236). “If that showing is made, then we have discretion to remedy the error if it seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation marks omitted). “The failure to meet one element of this test dooms a plain error claim, and so it is here.” Denson v. State, 307 Ga. 545, 548, 837 S.E.2d 261 (2019) (citation omitted).

Somerville cannot establish that the trial court made a clear and obvious error by admitting this testimony. The Confrontation Clause “bars the admission at trial of an absent witness's statements ․ unless the witness is unavailable and the defendant had a prior chance to subject her to cross-examination.” Smith v. Arizona, 602 U.S. 779, 784, 144 S.Ct. 1785, 219 L.Ed.2d 420 (2024). “[A] Confrontation Clause claim can succeed only if the challenged statement was: (1) testimonial, meaning that it was made with the primary purpose of establishing evidence that could be used in a future prosecution, and (2) hearsay, that is, offered in evidence to prove the truth of the matter asserted.” Gines v. State, 324 Ga. 46, 70, 928 S.E.2d 16 (2026) (cleaned up).

Here, the GBI agent's testimony does not actually recite any statement made by Somerville's roommate. To the extent Somerville suggests that the GBI agent's testimony implies that the roommate's statement was testimonial, he has not shown “that it was clear and obvious beyond reasonable dispute that admitting this testimony violated the Confrontation Clause.” Burke v. State, 320 Ga. 706, 707, 911 S.E.2d 575 (2025). He has not cited any federal or Georgia decision supporting the theory “that it violates the Confrontation Clause to introduce testimony from which a jury could infer that a testimonial statement was made by an absent witness, and neither this Court nor the United States Supreme Court has squarely addressed such a theory.” Id. at 708, 911 S.E.2d 575. And we have rejected such a challenge under similar circumstances before. See id. Accordingly, Somerville's plain error claim fails.

4. Finally, Somerville argues that the trial court made an incorrect statement of the law in its charge to the jury and that the charge amounted to an improper comment on the evidence in violation of OCGA § 17-8-57(a)(1). This claim fails.

In his pre-trial requests to charge, Somerville sought an instruction on the issue of flight, specifically:

Evidence of alleged flight has been introduced. Such evidence is governed by the rules concerning circumstantial evidence you have already been given. Furthermore, you may consider it if you find more likely than not that the accused actually committed such act, and that the reason was because of consciousness of guilt.

At the charge conference, the trial court indicated that it would give Somerville's requested charge. The trial court subsequently instructed the jury:

Now because an alleged fight [sic] has been introduced this evidence is governed by the rules concerning circumstantial evidence that I have already given to you. Furthermore, you may only consider it if you find more likely than not that the Defendant actually committed such acts and that the reason was because of consciousness of guilt.

(Emphasis added.) A copy of the written jury instructions was sent out with the jury, and the relevant written instruction referenced an “alleged flight.” (Emphasis added.)

Somerville argues that the trial court erred by referencing a “fight” in its verbal instruction to the jury because neither the law nor the evidence supported giving the charge. He also asserts, without elaboration, that the charge amounted to an improper comment on the evidence. See OCGA § 17-8-57(a)(1) (“It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge's opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.”). Somerville did not object to this instruction on either basis at trial, so we review these arguments only for plain error. See Nalls v. State, 304 Ga. 168, 172, 815 S.E.2d 38 (2018); OCGA § 17-8-57(b). Thus, to prevail on his claims, Somerville must identify a legal error that was not affirmatively waived, was clear and obvious, affected the outcome of the trial court proceedings, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. See Nalls, 304 Ga. at 172, 815 S.E.2d 38.

Beginning with Somerville's assertion that the trial court erred by referencing a “fight” in the challenged instruction, “[i]t is axiomatic that we do not assess jury charges in isolation; rather we consider them as a whole to determine whether there is a reasonable likelihood the jury improperly applied a challenged instruction.” Anderson v. State, ––– Ga. ––––, –––– – ––––, ––– S.E.2d ––––, S26A0177, slip op. at 11–12 (Ga. June 2, 2026) (2026 WL 1541158) (cleaned up). And “a single slip of the tongue, preceded and followed by correct instructions, will not vitiate a thorough and otherwise correct instruction.” Id. at ––––, ––– S.E.2d ––––, at 12 (cleaned up).

Here, our review of the record makes clear that the trial court's reference to “fight” rather than “flight” in the challenged jury instruction was simply an unfortunate slip of the tongue. And evaluating the challenged instruction in the context of the jury instructions as a whole, we conclude that Somerville has not shown that, but for the trial court's misstatement, there is a reasonable probability that the outcome of the trial would have been more favorable to him. Indeed, an examination of the entire charge reveals that the written instruction given by the trial court, which “included a full and correct version of the charge ․ unfettered by the trial court's inadvertent slip of the tongue,” instructed the jury on flight in the manner requested by Somerville and did not clearly mislead or confuse the jury. Arthur v. Walker, 285 Ga. 578, 580, 679 S.E.2d 13 (2009). See also Wells v. State, 323 Ga. 415, 427–28, 925 S.E.2d 551 (2026) (court's instructions, when taken as a whole, including the written instruction that corrected the misstatement, correctly informed the jury about the contested issue); Walker v. State, 308 Ga. 33, 37, 838 S.E.2d 792 (2020) (“[A] mere verbal inaccuracy resulting from a slip of the tongue which does not clearly mislead or confuse the jury is not reversible error.” (quotation marks omitted)). Accordingly, Somerville has not established plain error with respect to the trial court's misstatement.

Turning to Somerville's perfunctory assertion that the instruction was an improper comment on the evidence in violation of OCGA § 17-8-57(a), we see no error, let alone plain error, in the instruction because it “neither pertained to a disputed issue of fact, nor conveyed the judge's opinion as to whether a fact at issue had or had not been proved” as to Somerville's guilt. Tedder v. State, 320 Ga. 29, 38, 907 S.E.2d 623 (2024) (cleaned up). Accordingly, this claim fails.

Judgment affirmed.

FOOTNOTES

1.   The crimes occurred on March 27, 2019. On August 3, 2021, an Emanuel County grand jury jointly indicted Somerville, Jerel Bostic, and Timothy Wright for felony murder predicated on attempted armed robbery (Count 1), violation of the Street Gang Terrorism and Prevention Act (Count 2), armed robbery (Count 3), aggravated assault (Count 4), and possession of a firearm during the commission of a felony (Count 5). Somerville, Bostic, and Wright were tried together before a jury in December 2022. Somerville and Wright were found guilty of all charges. Bostic was found guilty on Counts 1–3, as well as a lesser-included offense on Count 4; he was acquitted on Count 5. We previously affirmed Bostic's and Wright's convictions. See Bostic v. State, 322 Ga. 688, 921 S.E.2d 295 (2025). The trial court sentenced Somerville to serve life in prison on Count 1, a concurrent twenty-year term on Count 2, a concurrent sentence of life in prison on Count 3, and a consecutive five-year term on Count 5. Count 4 was merged.Somerville filed a timely motion for new trial on December 20, 2022, which was amended through new counsel, and a hearing was held on the motion in March 2025. The State conceded that the evidence supporting Somerville's conviction on Count 2, the Street Gang Act violation, was constitutionally insufficient, and the trial court purported to grant a new trial as to that count. But, as we explained in Bostic, the court's rationale for reversing that conviction bars retrial. See Bostic, 322 Ga. at 688 n.1, 921 S.E.2d 295. The trial court denied Somerville's motion as to his remaining convictions. Thereafter, on the State's motion, the trial court entered an order of nolle prosequi on Count 2. Somerville then filed a timely notice of appeal, and his case was docketed to the April 2026 term of this Court and submitted for a decision on the briefs.

Bethel, Justice.

All the Justices concur, except Warren, P. J., not participating.